text:
    Ark. Bar Assn. v. Block.
    5-1696
    323 S. W. 2d 912
    Opinion delivered April 27, 1959.
    [Rehearing denied June 1, 1959]

      Gentry & Gentry, for appellant.

      Warren & Bullion, for appellee.
   J. Seaborn Holt, Associate Justice.

This case involves the alleged unlawful practice of law by appellees, and other similarly situated, and comes to this court on the following agreed statement of facts:

“It is stipulated by and between the plaintiffs and the defendants in the above styled cause of action that the following facts shall be considered by the Court in determining the issues involved in this cause.
I
“The Bar Association of Arkansas is a voluntary, unincorporated association composed of lawyers comprising most of the practicing lawyers of the State of Arkansas. The plaintiffs have filed this action as officers of the Bar Association of Arkansas and individually as licensed attorneys of Arkansas. This is a class action on behalf of all the members of the Bar of the State of Arkansas.
II
‘ ‘ This action was brought against the defendants as members of a class of real estate brokers and salesmen licensed under the laws of the State of Arkansas, and is intended to apply equally to all members of said class and is not an individual action directed solely toward the defendants.
III
‘ ‘ The Arkansas Real Estate Association is a voluntary unincorporated association composed of persons engaged in the real estate business in the State of Arkansas and has intervened in this action as representatives of the class which it represents. The Pulaski County Bar Association is a voluntary unincorporated association composed of practicing lawyers in Pulaski County, Arkansas, and has intervened in this action as a class intervention in behalf of the class which it represents.
IV
“The Statutes of the State of Arkansas do not define the term ‘practice of law’; however, they do provide that no person may practice law in the State of Arkansas without first having obtained a license to do so.
V
‘ ‘ The Statutes of the State of Arkansas provide that no person may engage in the real estate business in the State of Arkansas without having first obtained a license to do so under the Real Estate License Law.
VI
“The practice of completing printed forms of instruments incidental to the completion of real estate transactions in which a real estate broker has an interest as broker has been wide spread and prevalent in the State of Arkansas for a number of years and is in practice now and the said real estate brokers intend to continue said practice in the future.
VII
“The real estate brokers, in transactions in which they act as broker, use standardized and approved prepared forms of instruments hereinafter listed, and complete them by filling in the blank spaces to show the real estate transaction.
‘ ‘ The said instruments are:
1. Warranty Deeds;
2. Disclaimer Deeds;
3. Quitclaim Deeds;
4. Joint Tenancy Deeds;
5. Options;
6. Easements;
7. Loan Applications;
8. Promissory Notes;
9. Real Estate Mortgages;
10. Deeds of Trust;
11. Assignments of leases or rentals;
12. Contracts of Sale of Real Estate;
13. Releases and Satisfactions of Real Estate Mortgages;
14. Offers and Acceptances;
15. Agreements for the sale of real estate;
16. Bills of Sale;
17. Contracts of Sale;
18. Mortgages;
19. Pledges of personal property;
20. Notices and Declarations of Forfeiture;
21. Notices requiring strict compliance;
22. Releases and discharges of mechanic’s and materialmen’s liens;
23. Printed forms approved by attorneys, including the various forms furnished by title insurance companies to defendants for use by defendants as agents of title insurance companies; and
24. Acting as closing agent for mortgage loans and completing by filling in the blanks therein with factual data such instruments as are furnished to them and are necessary and incidental and ancillary to the closing of the transaction between the mortgagee for whom they act as agent and the mortgagor.
25. Leases.
VIII
“The real estate broker receives a commission for his participation in the real estate transaction as real estate broker, but no separate charge is made by the real estate broker for the completion of the blank forms of instruments which he prepares in the closing of a real estate transaction in which he is participating as broker.
IX
“The forms used by the defendants have been previously approved by attorneys and have been previously prepared, save for the blank spaces remaining thereon, which the defendants complete as above set out. The selection of the type of instrument form to be used in the closing of the transaction is made by the broker from information elecited from the other parties to the transaction and in accordance with their desires.
“In selecting the type of form to be used in any transaction, the real estate broker consults with the other parties to the transaction and follows their expressed desire as to the kind of transfer, terms, duration of payment, interest, etc.
X
‘ ‘ The defendants prepare no instruments in transactions in which they are not interested parties as brokers and do not claim the right to prepare instruments or complete printed forms of instruments for other parties where they are strangers to the transaction.
XI
“The defendants do not render opinions as to titles, nor the condition of titles of the- properties which are involved in the transaction, but refer'the other parties to the transaction to their respective attorneys in the event a question of title is raised”.

On a hearing, the trial court held that the activities of appellees in preparing the various instruments above listed “as an incident to real estate transactions which they are handling” did not constitute the practice of law in Arkansas. We have concluded that in so holding the court erred. Simplified, the question presented is whether the admitted activities of appellees constitute the practice of law. We hold that such activities do constitute the practice of law as to every one of the instruments itemized above except as to No. 14, that of “Offers and Acceptances”. It is undisputed that the appellees here are either persons who are not licensed to practice law, or corporations which cannot be licensed in Arkansas to practice law directly or through employees who are lawyers. Research of authorities by able counsel and by this court has failed to turn up any clear, comprehensible definition of what really constitutes the practice of law. Courts are not in agreement. “We believe it is impossible to frame any comprehensive definition of what constitutes the practice of law. Each case must be decided upon its own particular facts. . . . The practice of law is difficult to define. Perhaps it does not admit of exact definition,” Rhode Island Bar Association v. Automobile Service Association, (1935), 55 R. I. 122, 179 A. 139, 100 A. L. R. 226.

The Supreme Court of Errors of Connecticut, in an opinion (April 15, 1958), in the case of State Bar Association of Connecticut, et al v. The Connecticut Bank and Trust Company, 145 Conn. 222, 140 A. 2d 863, which we think sound and well reasoned, used this language: “The practice of law is open only to individuals proved to the satisfaction of the court to possess sufficient general knowledge and adequate special qualifications as to learning in the law, and to be of good moral character. A dual trust is imposed on attorneys at law. They must act with fidelity, both to the courts and to their clients. They are hound by canons of ethics which are enforced by the courts. The relation of an attorney to his client is preeminently confidential. It demands on the part of the attorney undivided allegiance, a conspicuous degree of faithfulness and disinterestedness, absolute integrity and utter renunciation of every personal advantage conflicting in any way, directly or indirectly, with the interest of his client. Only a human being can conform to these exacting requirements. Artificial creations, such as corporations or associations, cannot meet these prerequisites and, therefore, cannot engage in the practice of law. The practice of law consists in no small part of work performed outside of any court and having no immediate relation to proceedings in court. It embraces the giving of legal advice on a large variety of subjects and the preparation of legal instruments covering an extensive field. Although such transactions may have no direct connection with court proceedings, they are always subject to subsequent involvement in litigation. They require in many aspects a high degree of legal skill and great capacity for adaptation to difficult and complex situations. No valid distinction can be drawn between the part of the work of the lawyer which involves appearance in court and the part which involves advice and the drafting of instruments. The work of the office lawyer has profound effect on the whole scheme of the administration of justice. It is performed with the possibility of litigation in mind, and otherwise would hardly he needed. It is of importance to the welfare of the public that these manifold customary functions be performed by persons possessed of adequate learning and skill and of sound moral character, acting at all times under the head of trust obligation to clients which rests upon all attorneys. The underlying reasons which prevent corporations and associations, as well as individuals other than members of the Bar, from appearing before the courts apply with equal force to the performance of these customary functions of attorneys and counsellors at law outside, of the courts”, in re Opinion of the Justices, 289 Mass. 607, 613, 194 N. E. 313.

It is obvious therefore that the practice of law is not confined to services by a licensed attorney in a court of justice, but also includes any services of a legal nature rendered outside of courts and unrelated to matters pending in the courts. In Re Duncan, 83 S. C. 186, 65 S. E. 210, the Supreme Court of South Carolina said: “It is too- obvious for discussion that the-practice of law is not limited to the conduct of cases in court. According to the generally understood definition of the practice of law in this country, it embraces the preparation of pleadings and other papers incident to actions and proceedings on behalf of clients before judges and courts and in addition, conveyancing, the preparation of legal instruments of all kinds, and, in general, all advice to clients and all action taken for them in matters connected with the law. An attorney at law is one who engages in any of these branches of the practice of law”.

It seems to us that since the greater part of a lawyer’s work is performed in his office, it is certainly most important that such office work be performed by persons trained in the law and subject to court discipline. The hazards to the public are reduced to a minimum in court proceedings “where the proceedings are public and the presiding officer is generally a man of judgment and experience. * * * Not so, in the office. Here the client is with his attorney alone, without the impartial supervision of the judge. Ignorance and stupidity may here create damage which the courts of the land cannot undo”, People v. Alfani (1919), 227 N. Y. 334, 125 N. E. 671.

The Supreme Court of Illinois in the case of People v. Peoples Stockyards State Bank (1931), 344 Ill. 462, 176 N. E., 901, expressed a similar view in this language: “It is just as essential to the administration of justice and the proper protection of society that unlicensed individuals should not be permitted to prey upon the public in that sphere (office practice) of the practice of law as it is with respect to proceedings in the courts. It is no less an usurpation of the functions and privileges of an attorney and an affront to the court having sole power to license attorneys, for one not licensed as such to perform the services of an attorney outside of court procedures”.

The Supreme Court of Washington in the case of Washington State Bar Association v. Washington Association of Realtors (Wash. 1953) 41 Wash. 2d 697, 251 P. 2d 619, used this language:“ * ,* * Any legal form must be adapted skillfully to the transaction for which it is used, so that it expresses the agreement of the parties and defines their rights and obligations. Doing this is work of a legal nature and, when it is done by one unqualified, we not only cannot condone its continuance, but we must act to prevent it, whether or not it is done for compensation”, and in the case of People v. Schafer (1949), 404 Ill. 45, 87 N. E. 2d 773, the Supreme Court of Illinois said: “With reference to preparing deeds, notes, mortgages and contracts in real estate transactions, respondent seems to consider those acts as being more or less mechanical and routine, requiring no legal knowledge or skill. Many titles are complex and complicated. They have grown more so from time to time and will not likely become less complex in the future. Those who prepare instruments which affect titles to real estate have many points to consider. A transaction which at first seems simple may upon investigation be found to be quite involved. One who merely fills in certain blanks when other pertinent information should be elicited and considered is rendering little service, but is acting in a manner calculated to produce trouble. When filling in blanks as directed, he may not by that simple act be practicing law, bnt if he elicits the proper information and considers it, and advises and acts thereon, he would in all probability be practicing law. In other words, if his service does not amount to the practice of law, it is without material value; but if it is of material value, it would likely amount to the practice of law. The public should be protected from falling into the hands of one not skilled in the laws of conveyancing when seeking advice or service having to do with real estate titles”.

As indicated, we hold that the preparation of any of the instruments here involved, or any other instruments involving real property rights for others, either with or without pay, save and except instrument No. 14 above, constitutes the practice of law in this state. Obviously instruments of “Offers and Acceptances” contemplate the subsequent preparations of a deed to the property involved, and possible related instruments such as mortgages, leases, easements, etc., to complete the transaction which, we hold, only a licensed lawyer equipped with requisite legal training, knowledge and skill could prepare.

Accordingly, the decree is reversed with directions to enter a decree consistent with this opinion.


source: Caselaw Access Project

author: Ed. F. McFaddin, Associate Justice.

license: Public Domain

text:
    Hicks v. Lady.
    5-1833
    323 S. W. 2d 429
    Opinion delivered April 27, 1959.

      Cecil C. Matthews, for appellant.

      Milton Q. Robinson, for appellee.
   Ed. F. McFaddin, Associate Justice.

The Trial Court refused to grant appellant a new trial on his claim that the jury was guilty of misconduct; and here is appellant’s wording of his assignment of error: “Trial court should have sustained Appellant’s motion for mistrial and new trial for reason that jurors received additional evidence from some of their members which was highly prejudicial to the Appellant and which tended to the discredit of Appellant’s testimony.”

The background facts are these: Mr. Hicks sued Mrs. Lady for damages arising from the collision of their automobiles. In the course of the trial, Mr. Hicks testified that he had a Kodak with him at the time of the collision (which occurred in Poinsett County); and that immediately after the collision he took a picture of his car at the place where the collision occurred. Mr. Hicks offered the picture in evidence; another witness testified that he did not see Mr. Hicks taking any pictures. After the jury had deliberated for a time, the jury returned into open Court, and on Page 43 of the transcript the record reflects the following, and only the following, to have occurred :

“After the Court had instructed the Jury as to the law in the case, the Court directed the Jury to go to the Jury room to deliberate on the case. Sometime thereafter the Jury appeared before the Court and stated to the Court that it was the opinion of some of the Jurors that the picture was not taken at the scene of the accident but was taken at Fairbanks Morse and Company. The Court instructed the Jury it could not pass on the evidence, that was the province of the Jury and not the Court. The Court directed the Jury to return to the jury room for further deliberation and sometime thereafter the jury returned with the following verdict.”

The jury returned a unanimous verdict in favor of Mrs. Lady; and then — for the first time according to the record — Mr. Hicks registered a protest to the action of the jury, regarding the picture. The verdict was returned on May 19th; and on May 22nd Mr. Hicks filed a motion for new trial on the alleged ground of the jury’s misconduct. This motion for new trial was not verified and no evidence was heard on the motion, nor was any stipulation of any kind entered into. On July 2nd the Trial Court denied the motion for new trial.

With the foregoing background facts before us, we conclude that Mr. Hicks cannot prevail in this Court on his claim for new trial. There are several reasons which impel our conclusion; but we mention only the following:

In the first place, Mr. Hicks offered no seasonable objection to the alleged misconduct. The first intimation in the record that any one on the jury doubted the locality in which the picture was alleged to have been taken was the occurrence reported on page 43 of the transcript, as previously copied. No objection of any kind was made at that time, and the jury retired to the jury room for further deliberations. Thus, both parties (plaintiff and defendant) “took the chances” on what the verdict would be. If Mr. Hicks had desired to make any objection about the jury’s alleged misconduct, the time and place for him to have done so was then and there in open Court, when one member of the jury announced that some of the jurors did not believe that the picture was taken at the scene of the collision. Such objection should have been made before the Court permitted the jury to retire for further deliberations.

The authorities generally hold that, where alleged misconduct of the jury was known to the party claiming to have been prejudiced thereby, or to his counsel, during the trial and before a verdict was rendered, and no objection was made thereto, such party cannot, after an adverse verdict, assert the misconduct as grounds for new trial. Our own case of Ark. Central RR. Co. v. Morgan, 129 Ark. 67, 195 S. W. 403, is in full accord with this rule. In that case, this Court recognized that when the counsel knew, in the course of the trial, of an alleged act of misconduct, and failed to call it to the attention of the Trial Court until after the verdict, such delay constituted a waiver. Here are excerpts from Judge Frank G. Smith’s language: “. . . before the rendition of the verdict, and while the opportunity yet remained for counsel for appellant to make complaint of the improper conduct ... to the Court, thereby affording opportunity to inquire into the incident . . . appellant elected to take chances upon the result of the verdict, and made complaint to the Court only after the verdict had been returned . . . Having taken its chance on the verdict of the jury, by failing to speak when it should have spoken, we will not disturb the finding of the Court upholding the integrity of the verdict.” For similar declarations of our Court, see Leech v. Mo. Pac. Ry., 189 Ark. 161, 71 S. W. 2d 467; and Gregory v. Rees Plbg. Co., 222 Ark. 908, 263 S. W. 2d 697.

There is another reason why the appellant is not entitled to a new trial in this case, and it is well to note it as a guide in future procedural matters. When Mr. Hicks filed his motion for new trial and alleged the misconduct of the jury, he failed to verify his motion. Section 27-1905 Ark. Stats, requires that when the motion for new trial is because of the alleged misconduct of the jury (the second ground in § 27-1901), the motion must be sustained by affidavits. This was not done. It is true that Act No. 555 of 1953 (as found in § 27-2127.5 Cumulative Pocket Parts of Ark. Stats.) says that in civil cases no motion for new trial and no assignment of errors shall be necessary in certain instances. But such provision relates to the use of the motion for new trial as an assignment of errors claimed by the appellant to have occurred in the course of the trial. In instances such as misconduct or newly discovered evidence, the provisions, as to affidavits to accompany the motion, still apply.

Finding no error, the judgment is affirmed.

       The protest was after the jury had been polled and unanimously affirmed the verdict; and the protest was as follows: “If the Court please, I would like to move for a mistrial at the present time on the grounds that the Jury took upon themselves to determine and presume an issue of fact that was not introduced into evidence and of which no testimony was offered and reportedly came from their own knowledge of circumstances surrounding the making of the picture.”

       The textual statement is taken from 39 Am. Jur. 86 (“New Trial” §71). Other authorities on the same point are as follows: American Annotated Cases, Vol. 16 p. 177 on “Waiver of Objection”; and 150 A.L.R. 968 on “Waiver of Misconduct”. In Ann. Cas. 1912A at page 223, there is a note entitled, “Right to new trial for misconduct of juror where objection is not made until after verdict, though fact is known to moving party before that time”; and cases from over a score of jurisdictions are cited.


author: George Pose Smith, J.

text:
    Gunn Distributing Company v. Talbert.
    5-1832
    323 S. W. 2d 435
    Opinion delivered April 27, 1959.

      Barber, Henry, Thurman <& McCashill, for appellant.

      Mehaffy, Smith <& Williams and William A. Eldredge, Jr., for appellee.
   George Pose Smith, J.

This workmen’s compensation claim was filed by the appellee upon the theory that a disabling heart attack which he suffered in his home was proximately caused by a period of excessive strain and overwork in the course of his employment for the appellant. The commission’s finding of compensable disability was affirmed by the circuit court. In seeking a reversal the employer and its insurance carrier question the sufficiency of the evidence and also contend that they were prejudiced by the claimant’s failure to give notice of his injury within sixty days after it occurred.

Talbert, a man of fifty-eight, had worked as a shipping clerk for the appellant for thirteen years before he suffered a heart attack at three or four o’clock in the morning on October 12, 1955. During the proceding ten days the appellant had been engaged in moving its warehouse to a new location. Customer shipments were not suspended during the move, so that Talbert not only assisted in the moving but also carried on his regular work. In addition, Talbert’s helper was assigned to the moving operation, which materially increased the physical labor that Talbert was required to perform in the shipment of goods. On twelve of the sixteen days immediately preceding his attack Talbert worked overtime for three hours or more. He testified that he was exhausted at the end of each day, that he was so worried and so tired he was unable to sleep at night. His physician testified that in his opinion Talbert’s condition was aggravated by the additional stress, which caused the attack to occur earlier than would otherwise have been the case.

The evidence that we have summarized is of a substantial nature and sufficiently establishes a causal connection between the appellee’s employment and his disability. See Bryant Stave & Heading Co. v. White, 227 Ark. 147, 296 S. W. 2d 436. We agree with the views expressed by the commission in its opinion allowing the claim: “That claimant’s breakdown occurred at night, while claimant was at rest, and several hours after the work day, does give us some concern. However, we are all aware that the effects of an extremely hard day’s work, or the cumulative effect of unusual work problems extending over a period of days or weeks, does not cease upon our completion of work on any given day. Thus, we conclude that an interval of some eight or ten hours between the end of a day’s work and the first manifestation of pain by reason of coronary difficulty is not such an interval as to of itself defeat a theory of association between one’s work activities and coronary breakdown when there is competent medical evidence that a causal connection does exist.”

There are two answers to the contention about the claimant’s failure to give notice of his injury within sixty days. First, the statute requires that this objection be made at or before the first hearing, which was not done. Ark. Stats. 1947, § 81-1317. Secondly, the same section provides that failure to give the notice shall not bar the claim if the employer had knowledge of the injury, which was the case here, and if the commission determines that the employer has not been prejudiced. Here even the insurance carrier cannot establish the existence of prejudice; for Talbert promptly made a claim against this same insurance company for benefits under a group hospitalization policy. Hence both the employer and the insurer knew of the disability and are not shown to have lost any benefit that might have resulted from an immediate investigation of the injury, if indeed such an investigation was not actually made. We conclude that the record supports the commission’s determination that the employer was not prejudiced.

The judgment is affirmed, but the appellee’s motion for an allowance of costs for his supplemental abstract is denied, it being our opinion that the appellant’s abstract is not seriously deficient.


author: Paul Ward, Associate Justice.

text:
    Garrett v. Faubus, Governor.
    5-1824
    323 S. W. 2d 877
    Opinion delivered April 27, 1959.

      Kenneth Coffelt, for appellant.

      Bruce Bennett, Atty. General, by: Clyde Calliotte, Asst. Atty. General, and Walter Pope, Kay Matthews, Little Rock and Thomas Karper, Ft. Smith, for appellee, Thomas E. Downie, Amicus Curiae, Little Rock.
   Paul Ward, Associate Justice.

On this appeal it is contended that Act 4 of the Second Extraordinary Session of the 1958 General Assembly is in conflict with the constitution of Arkansas and the constitution of the United States.

Briefly and generally stated, said Act 4 gives the Governor the right to close any school or schools in any particular school district whenever: (a) He determines there is actual or impending domestic violence endangering lives or property; (b) Federal troops are stationed in, on or about a public school; (c) He determines an efficient educational system cannot be maintained because of integration of the races in school. The Act also provides: In the event of a closing, an election shall be held within 30 days and if a majority so vote the school or schools shall be opened on an integrated basis; If any superintendent, or other employee of the school fails to cooperate in carrying out the closing order he or they will be replaced by the Governor until the next regular school election; any schools so closed shall not be reopened except by the Governor; If any section or provision of the Act is held unconstitutional it will not affect the remaining portions, and: The provisions of the Act shall be activated by proclamation of the Governor. The emergency clause sets forth the reasons for the passage of the Act and its immediate effective date.

On September 12, 1958, the Governor, pursuant to the provisions of the above Act, ordered the Senior High Schools in the Little Rock School District closed as of September 15, 1958, at 8:00 o’clock a.m. The reasons given by the Governor for the closing order, as they are set out in his proclamation, were: “I have determined that domestic violence within the Little Rock School District is impending, and that a general, suitable, and efficient educational system cannot be maintained in the Senior High Schools of the Little Rock School District because of integration of the races in such schools.”

On the same day the proclamation was issued, appellant, as a citizen and taxpayer, filed a complaint against the Governor alleging that Act 4 violated the Constitution of the United States and the Constitution of Arkansas, and particularly Article 14 of the latter Constitution. The prayer was that, in event the schools were closed, a mandatory injunction issue against the Governor directing him to vacate and nullify the proclamation. The court was also asked to enter a declaratory judgment construing the constitutionality of Act 4.

To the above complaint demurrers were filed by the Attorney General and also by appellee’s private attorneys on the ground that the complaint failed to state a cause of action. The private attorneys also denied that the trial court had jurisdiction of appellee or the subject matter, and the Attorney General joined appellant in requesting a declaratory judgment. The trial court sustained the demurrer filed by the Attorney General, and dismissed the complaint — hence this appeal.

The only ground relied on by appellant for a reversal is thus stated in her brief:

“Act 4 of the Extraordinary Special Session of the General Assembly of Arkansas for 1958, is unconstitutional in that it violates Article 14 of the Constitution of Arkansas. Hence any act of the Governor based upon Act 4 is void for lack of constitutional authority, same being in violation of said Article 14 of the State Constitution.”

The brief filed by Amicus Curiae attorneys, however, assumes' that Act 4 will be considered in relation to both the State and Federal Constitutions and it is our purpose to do so.

Does the Act Violate the State Constitution? In our opinion Act 4 does not necessarily violate the State Constitution. We use the word “necessarily” advisedly. It is a well established principle of law that an Act of the Legislature which is constitutional on its face may become unconstitutional in its operation or under changed conditions. The landmark case announcing this principle is Yick Wo v. Hopkins, Sheriff, 118 U. S. 356, quoting from page 373:

“Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as to practically make unjust and illegal discrimination between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the constitution.” Essentially the same principle was announced by this court in Board of Trustees, University of Ark. v. Pulaski County, 229 Ark. 370, 315 S. W. 2d 879, in these words: ‘ ‘ The principle is well settled that a statute may be valid when enacted bnt may become invalid by changes in .the conditions to which it applies.” In Taylor v. City of Pine Bluff, 226 Ark. 309, 289 S. W. 2d 679, we quoted with approval “that purposeful discrimination in the enforcement of an ostensibly fair law may violate the constitution. If the unlawful administration of the statute results ‘in its unequal application to those who are entitled to be treated alike’, there is a denial of equal protection.’ Since Act 4 is unquestionably an attempt to exercise the police powers of the State about which more will be said later, and since this case comes to us on a demurrer, and since acts of the legislature are presumed to be constitutional, it is not incumbent on us to speculate on facts that might tend to invalidate this Act. In this connection, in the case of Harlow v. Ryland, 172 F 2d 784, the court, in considering the validity of a statute said: “. . . it is not incumbent upon the court to find the actual existence of facts which would justify the legislation; but if a state of facts which would justify the legislation can reasonably be conceived to exist, the court must presume that it did exist and that the law was passed for that purpose.”

The remaining question then is: Does Act 4, on its face, violate Section 1 of Article 14 of our State Constitution, as claimed by appellant? This section reads:

“Intelligence and virtue being the safeguards of liberty and the bulwark of a free and good government, the State shall ever maintain a general, suitable and efficient system of free schools whereby all persons in the State between the ages of six and twenty-one years may receive gratuitous instruction.”

It is our conclusion that no such constitutional violation exists. Article 14, Section 4, of our Constitution reads: “The supervision of public schools and the execution of the laws regulating the same shall be vested in and confided to such officers as may be provided by the General Assembly.” Therefore, from a strictly constitutional standpoint, the legislature had the same right to authorize the Governor to take charge of schools as it has always exercised to authorize school boards to do so. There is nothing in the Constitution requiring schools to be maintained in any fixed number at any fixed standard, or in any fixed places. If it did and if the requirements were those existing on September 27, 1958, then the constitution has been flagrantly violated for more than 75 years following 1874.

We have read with much interest the case of Harrison v. Day, 106 S. E. 2d 637, decided January 19th of this year, where the Supreme Court of Virginia held several segregation acts in conflict with the constitution of that state. Section 129, of the Virginia Constitution, in language essentially the same as in Section 1, Article 14 of our Constitution, requires the State to maintain a system of free public schools. However, Section 133 of their constitution places “The supervision of schools in each county and city ... in a school, to be composed of trustees . . .” etc. The court held that this provision prevented the legislature from placing the supervision in the Governor. Of course no such restriction is found in our constitution as we have already pointed out. It is interesting to point out that the Virginia Supreme Court, in considering an Act which permitted schools to be closed because of the presence of Federal Troops, had this to say: “. . . While we agree that the State, under its police power, has the right under these conditions to direct the temporary closing of a school, the provision divesting the local authorities of their control and vesting such authority in the Governor runs counter to Section 133 of the Constitution.”

We repeat that we find nothing in Act 4 which conflicts with Section 1, Article 14 of the Arkansas Constitution. The degree to which the police powers of the State may be extended will be further discussed later.

Regarding the United States Constitution. Technically speaking, the question posed for our solution is: Does Act 4 conflict with the first section of the 14th Amendment of the United States Constitution? This section, in substance, says: (a) All persons born or naturalized in the United States, and subject to its jurisdiction, are citizens; (b) No state shall make or enforce any law abridging the privileges or immunities of such citizen; (c) No state shall deprive such citizens of life, liberty, or property without due process of law, and: (d) No state shall deny such citizen equal protection of the laws. The Supreme Court of the United States in the case of Brown, et al v. Board of Education of Topela, et al., 347 U. S. 483, 98 L. Ed. 873, 74 S. Ct. 686, (on May 17, 1954) interpreted said section to forbid discrimination in the public schools. Ordinarily, it seems, that should have ended the matter because the law had been declared, but it did not. The court must have realized that the dosage was too potent for immediate administration, for it said: . . because of the great variety of local conditions, the formulation of decrees in these cases presents problems of considerable complexity ” (our emphasis). For the above reason the court continued the matter for several months and gave all states permitting segregation an opportunity to be heard. After another hearing, the Court (349 U. ¡3.294) on May 31,1955, handed down its final decision. Apparently the Court still recognized the dosage was too potent to be taken at one time without harmful after effects. Among other things it said:

“These presentations were informative and helpful to the Court in its consideration of the complexities arising from the transition to a system of public education freed of racial discrimination . .
“Full implementation of these constitutional principles may require solution of varied local school problems. School authorities have the primary responsibility for elucidating, assessing, and solving these problems J ?
“Because of their proximity to local conditions and the possible need for further hearings, the courts which originally heard these cases can best perform this judicial appraisal . . .”
“In fashioning and effectuating the decrees, the courts will be guided by equitable principles . . .”
“These cases call for the exercise of these traditional attributes of equity power . . .”
“To effectuate this interest may call for elimination of a variety of obstacles in making the transition to school systems operated in accordance with the constitutional principles set forth in our May 17, 1954, decision . . .”
“Courts of equity may properly take into account the public interest in the elimination of such obstacles in a systematic and effective manner . . .”
“Once such a start has been made, the courts may find that additional time is necessary to carry out the ruling in an effective manner . . .” (Our emphasis).

We have set out the above quotes because it appears that they delineate the only sphere of judicial discretion left to us. While we deeply deplore the fact that the Supreme Court of the United States did not follow the clear legal precedents announced in Plessy v. Ferguson, 163 U. S. 537, 41 L. Ed. 256, 16 S. Ct. 1138, in Gong Lum v. Rice, 275 U. S. 78, 72 L. Ed. 172, 48 S. Ct. 91, and in numerous other decisions over a period of fifty years, instead of a long list of non-legal authorities, yet this Court will be subservient to the decision it did reach unless and until relief is afforded by the United States Supreme Court itself, by amendment to the Federal Constitution, by the intervention of Congress under Section 5 of the said 14th Amendment, or by some other means not readily apparent. Much has been said about the supreme law of the land in connection with the issue before us now. While we can see no room for argument since Article 6 of the United States Constitution itself says it, together with laws passed by Congress and certain treaties, “shall be the supreme law of the land.”

Our Field of Interpretation. Notwithstanding what we have said above concerning the supreme law of the land, we feel that the issue before us falls within a sphere which allows this court some judicial discretion. That sphere is the application of the police powers of the state to the implementation of the decision in the Brown case, supra.

First, let us make our position clear. If Act 4 is viewed as giving the Governor the power to close all public schools permanently, it would, we concede, be in violation not only of the decree in the Brown case but also of the State Constitution, but we do not consider it that way. Without extending this opinion unduly by recounting all the history preceding and leading up to the passage of Act 4, we take it as well understood that the Act was intended to slow down the implementation of integration until it could be accomplished without great discomfort and danger to the people affected or until a lawful way could be devised to escape it entirely. In other words, the relief was intended to be temporary and not permanent. The terms of the Act itself bear out this interpretation.

There is nothing in the record to show what reasons the Governor had for believing that the peace would be disturbed or that the lives of citizens and property of the district would be endangered, and certainly there is nothing in the record to show his reasons were not well founded. Such being the case we will assume, as we have previously pointed out we may, that the Governor did not act capriciously.

If, in closing the schools temporarily, the Governor did so to protect the peace and welfare of the people, then he was justified, we think, under the well recognized police powers of the State. We believe that if the legislature had given the Governor the power to close schools temporarily in case of pestilence or insurrection in order to protect the people, no question of constitutionality would or could be raised. The difference between the real and the supposed situation is not one of law but of fact and the only difference in fact is one of degree. While the decisions dealing with police power are legion, the fundamental concept underlying its principle is no where better stated than in 11 Am. Jur. under the title Constitutional Law. In Section 251 it is stated: “. . . the police power is expressed by the well-known maxim ‘solus populi est suprema lex’ (The welfare of the people is the supreme law). It has been said that this maxim is the foundation principle of all civil government and that for ages it has been a ruling principle of jurisprudence.” Also in the same text, Section 255, it is stated: “The police power under the American constitutional system has been left to the states.” Numerous footnote cases are cited in the text to support both propositions.

It makes no difference, we think, whether threat of the welfare of the people arises out of a pestilence or out of certain concepts of life that had formed over a period of years — even though these concepts may be based, as some insist, on prejudice or emotions. We believe it is common knowledge that people are most disturbed over emotional matters. The existence and extent of the emotional matters involved in the matter under discussion are too well known to need amplification.

Not only are the emotions and concepts mentioned above very real in the lives of the people of many sections of the nation, including this state, but we think they have been permitted and even encouraged by the same court that authored the Brown decision. A few excerpts from the opinions of the Supreme Court will suffice to explain. In the Gong Lum case, supra, where the court was dealing with the question of segregation, it said:

“. . . the education of the people in schools maintained by state taxation is a matter belonging to the respective states, and any interference on the part of federal authorities with the management of such schools cannot be justified . . .”

In Robinson and Wife v. Memphis & Charleston Ry. Co., 109 U. S. 3, 27 L. Ed. 835, 3 S. Ct. 18, we find:

“. . .if the laws, themselves make any unjust discrimination, amenable to the prohibition of the 14th Amendment, congress has full power to afford a remedy under that amendment and in accordance with it.”

Much of the language used by the Court in the Plessy case, supra, must have been reassuring to the people for nearly fifty years. Some expressions of the court are set out, viz:

(Page 544) “The object of the amendment (14th amendment U. S. Const.) was undoubtedly to enforce the absolute equality of the two races before the law, but in the nature of things it could not have been intended to abolish distinctions based upon color, or to enforce social as distinguished from political equality, or a commingling of the two races upon terms unsatisfactory to each.”
‘‘ Laws permitting, and even requiring, their separation in places where they are liable to be brought into contact, do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislature in the exercise of their police power.”
‘ The most common instance of this is connected with the establishment of separate schools for white and colored children, which has been held to be a valid exercise of the legislative power . . .”
(Page 550) “So far, then, as a conflict with the 14th amendment is concerned, the case reduces itself to the question whether the statute of Louisiana is a reasonable regulation, and with respect to this there must necessarily be a large discretion on the part of the Legislature. In determining the question of reasonableness it is at liberty to act with reference to established usages, customs and traditions of the people, and with a view to the promotion of their comfort, and the preservation of the public peace and good order.”
(Page 551) “The argument also assumes that social prejudices may be overcome by legislation, and that equal rights cannot be secured to the negro except by an enforced commingling of the hvo races. We cannot accept this proposition. If the two races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other’s merits and a voluntary consent of individuals.”

The court in speaking of integration of the races said:

“. . . this end can neither be accomplished nor promoted by laws which conflict with the general senti ment of the community upon whom they are designed to operate.” (Emphasis supplied in each instance).

In view of the overall situation as we have tried to point it out above, and having seen that the court itself in the Brown case recognized some consideration must be given to local conditions and customs in the implementation of its opinion, we are driven to the conclusion that there is, and by law and common sense should be, a large sphere of action available to the State Legislature, under its police power, to guide the course of segregation so as to protect the public welfare. As before intimated, we are aware that neither this Court nor the legislature can over-ride permanently the integration mandate, but some one must guide a peaceable, safe course for its implementation. Under veto power of the Supreme Court of the United States, we believe this course can better be charted by those closest to the people affected and therefore better acquainted with local conditions. It is within this framework that we uphold the constitutionality of Act 4 under the police power of the State Legislature.

It is in this connection also that we desire to stress what our courts, including the Supreme Court of the United States, have heretofore said:

BARBIER v. CONNELLY (1885) 113 U. S. 27, 5 Sup. Ct. 357, 28 L. Ed. 923

“But neither the amendment (14th)- — broad and comprehensive as it is — nor any other amendment, was designed to interfere with the power of the State, sometimes termed its police power, to prescribe regulations to promote the health, peace, morals, education, and good order of the people, and to legislate so as to increase the industries of the State, develop its resources, and add to its wealth and prosperity.”

STATE v. MOUNTAIN TIMBER CO., 75 Wash. 581, 135 Pac. 645

“Having in mind the sovereignty of the state, it would be folly to define the term. To define is to limit that which from the nature of things cannot be limited, but which is rather to be adjusted to conditions touching the common welfare, when covered by legislative enactments. The police power is to the public what the law of necessity is to the individual. It is comprehended in the maxim, ‘Salus populi suprema lex’. It is not a rule; it is an evolution.”

STATE v. HAY, 126 N. C. 999, 35 S. E. 459, 49 L. R. A. 588, 78 Am. St. Rep. 691

‘Salus populi suprema lex, — the public welfare is the highest law — is the foundation principle of all civil government’ . . . There is an implied assent on the part of every member of society that his own individual welfare shall, in cases of necessity, yield to that of the community; and that his property, liberty, and life shall, under certain circumstances, be placed in jeopardy, or even sacrificed, for the public good.”

STATE v. BOONE, 84 Ohio St. 346, 39 L. R. A. (NS) 1015

‘ ‘ The police power is inherent in sovereignty; and its exercise is justified by the necessity of the occasion. Its foundation is the right and duty of the government to provide for the common welfare of the governed. It is tersely expressed in the maxim, ‘Salus populi suprema lex’ ”.

DAVOCK, et al. v. MOORE, Controller, 105 Mich. 120 63 N. W. 424, 28 L. R. A. 783

“Whatever differences of opinion may exist as to the extent and boundaries of the police power, and however difficult it may be to render a satisfactory definition of it, there seems to be no doubt that it does extend to the protection of the lives, health, and property of the citizens, and to the preservation of good order and public morals. They belong emphatically to that class of objects which demand the application of the maxim, Salus populi Suprema lex-, and they are to be attained and provided for by such appropriate means as the legislature may devise.”

PEOPLE v. LINDE, 341 Ill. 269, 173 N. E. 361, 72 A. L. R. 997

“The power that the state may exercise in this regard is the overruling law of necessity and is founded upon the maxim, Solus populi est suprema lex. The existence and exercise of this power are an essential attribute of sovereignty, and the establishment of government presupposes that the individual citizen surrenders all rights the exercise of which would prove hurtful to the citizens generally.”

BLAND v. PEOPLE, 32 Colo. 319, 76 P. 359, 65 L. R. A. 424, 105 Am. St. Rep. 80

“ ‘The welfare of the people is the supreme law’, is a maxim of the law, and it is upon these two maxims that the police power of the state is largely based. In the exercise of the police power the Legislature, has a large discretion, and it is our duty to sustain such legislation unless it is clearly and palpable and beyond all question in violation of the constitution.” (Emphasis supplied in each instance).

That complete integration of the schools in many communities presents a social problem fraught with frightening consequences in the minds of many people is a fact that cannot be ignored or avoided. If those people are convinced they are being forced into acceptance, without time for adjustment, by a few people who are far removed from the scene and who, they feel, are not sympathetic or understanding, the problem becomes more frightening. On the other hand, if these same people were given assurance that they would be guided by understanding and sympathetic local officials, it would tend to allay their fears and also would, no doubt, hasten the day when a complete solution would be achieved with a measure of dignity, peace and harmony. It is in this concept that we rely so heavily on the police power of the State to protect the peace and welfare of the people, and to effect a workable solution of this momentous problem- — all within the framework of the Brown opinion. It was to this end that Act 4 was passed by the legislature and it is to this end that we hold it is constitutional.

In. speaking of the deep and disturbing feelings of the affected people, we take judicial notice of numerous elections where the people have expressed their feelings in no uncertain terms, and also of the adoption of Amendment 44 to the State Constitution. Section 3 of that Amendment reads: “The General Assembly shall enact such laws under the police powers reserved to the states as may be necessary to regulate health, morals, education, marriage, good order and to insure the domestic tranquility of the citizens of the State of Arkansas.” Other portions of the amendment make it clear that the Legislature was not only empowered but was directed to protect the safety and welfare of the people.

In view of what we have said it follows that the decree of the trial court must be, and it is hereby affirmed.

Affirmed.

Harris, C. J. and Robinson, J, concur.

Holt, MoFaddin and George Rose Smith, JJ., dissent.


author: Carleton Harris, Chief Justice.

text:
    Garrett v. Faubus, Governor.
    5-1824
    Concurring opinion delivered April 27, 1959.
   Carleton Harris, Chief Justice.

The purpose of this concurrence is to state my own views relative to the Act here in question. My decision as to the validity of Act 4 is based purely and simply upon the State’s police power. The right of the State to enact legislation as a means of protecting the health and safety of its citizens, is so well recognized as to really need no citation of authority, and this is true with reference to emergency legislation, though the legislative act may be in conflict with a constitutional provision. As stated in Corpus Juris Secundum, Vol. 16, Sec. 195, page 945:

“Legislation may be enacted under the police power, in seasons of emergency, which would not be appropriate at other times, and such legislation is not invalid merely because it necessarily works a hardship on some individuals for a period of limited duration; but emergency does not justify destruction. Emergency legislation ordinarily contains a declaration that an emergency exists which is causing widespread distress to a large portion of the population with resulting danger to health, safety, or morals of the public generally, but the mere legislative declaration does not of itself create an emergency which will warrant the legislation. The actual existence of the emergency and not the limitation of the law’s operation to a prescribed period, gives validity to an exercise of the police power, and, when the emergency ceases to exist, the operation of the statute will be arrested, even though the prescribed term of its operation may not then have expired. ’ ’

This doctrine has been followed in any number of cases, one of the most celebrated being Home Building & Loan Ass’n v. Blaisdell, 290 U. S. 398, 78 L. Ed. 413, 54 S. Ct. 231, which case is cited in various decisions from state courts, including our own. The background is as follows. In 1933, this nation was in the throes of a terrible economic depression, and people who had mortgaged their homes, unable to pay the indebtedness for which the mortgages had been given were losing their property through foreclosure proceedings. Various state legislatures enacted legislation designed to prohibit immediate foreclosures, and thus protect citizens from losing their homes. Among other states which enacted such legislation were Arkansas, Arizona, and Minnesota. The acts so passed by the General Assemblies of these states were attacked in the courts as unconstitutional, and Act 21 of the Arkansas General Assembly of 1933 was attacked on the ground that it was unconstitutional and void, because it conflicted with Section 17 of Article II of the Constitution of the State of Arkansas, and further, the Act was in conflict with Section 10 of Article I of the Constitution of the United States, which provides that no state shall pass any law impairing the obligation of contracts. This Court passed upon these contentions in the case of Reiman v. Rawls, 188 Ark. 983, 68 S. W. 2d 470, and in an Opinion written by the late "Mr. Justice Mehaeey, said:

“It is a matter of common knowledge that the present is a period of great depression, and that land values have decreased until there is practically no market for such property. A home that was worth $2,500 when mortgaged to secure a debt some years ago would not bring at foreclosure sale more than one-fourth of this amount, and in many cases much less. There is not only no market for land, but practically all the banks in the country have failed, and it is impossible to borrow money secured by mortgage or pledge of property, to pay debts, and thousands of people in Arkansas who were making a living prior to the depression have lost their jobs, are without work, and without means of support. Governments are created for the purpose of securing the rights of the citizens, and, if a government, during a period of such depression as we now have, could not protect its citizens, there would be no reason for its existence. ’ ’

The opinion then quoted from the opinion of the Minnesota Supreme Court in the Blaisdell case (which subsequently went to the United States Supreme Court) as follows:

“Emergency laws in time of peace are uncommon but not unknown. Wholesale disaster, financial panic, the aftermath of war, earthquake, pestilence, famine, and fire, a combination of men or the force of circumstances may, as the alternative of confusion or chaos demand the enactment of laws that would be thought arbitrary under normal conditions.”

Under the view expressed therein, Act 21 was upheld as valid legislation. See also Sewer Improvement District No. 1 of Wynne v. Delinquent Lands, 188 Ark. 738, 68 S. W. 2d 80. In the case of Pouquette v. O’Brien, 55 Arizona 248, 100 P. 2d 979, the same question was before- the court in 1937. In this case, the court refused to grant relief, because it said the emergency no longer existed, and held that the mortgage moratorium acts of 1937 and 1939 were unconstitutional as being in conflict with Section 10, Article I of the Federal Constitution. However, the court, in its language, clearly indicated that the legislation would have been upheld in 1933, and in a rather lengthy opinion, discussed the Blaisdell case. Inasmuch as the latter is a very lengthy opinion (consisting, with headnotes, of nearly 51 pages), and the reasoning is summarized quite well in the Pouquette case, I quote from the latter in explaining the reasoning of the United States Supreme Court in the former.

‘•Q he Cii-o is a long one and quotations therefrom sufficient to explain and substantiate our conclusions as to its meaning would extend this opinion to unreasonable length. After a careful analysis of the case and. its reasoning, we think it clearly laid down the following-principles: (a) Legislation of the kind involved in the various mortgage moratorium acts under consideration unquestionably violates section 10, Art. I of the Federal Constitution referred to. (b) There is implied, though not expressed, within the Federal Constitution a reservation of the police power to the states, which is superior to all specific provisions of that constitution and which may be called into play in periods of great public emergency, and when so called these police powers may temporarily only suspend the exercise of the specific powers or prohibitions of the constitution. As was stated in the Blaisdell case: ‘Undoubtedly, whatever is reserved of state power must be consistent with the fair intent of the constitutional limitation of that power. The reserved power cannot be construed so as to destroy the limitation, nor is the limitation to be construed to destroy the reserved power in its essential aspects. They must be construed in harmony with each other. This principle precludes a construction which would permit the state to adopt as its policy the repudiation of debts or the destruction of contracts or the denial of means to enforce them. But it does not follow that conditions may not arise in which a temporary restraint of enforcement may be consistent with the spirit and purpose of the constitutional provision and thus be found to be within the range of the reserved power of the state to protect the vital interests of the community. It cannot be maintained that the constitutional prohibition should be so construed as to prevent limited and temporary interpositions * * * V The existence of a public emergency justifying the suspension of the ordinary constitutional limitations is primarily for the legislature, but the determination of that branch of the government is not conclusive, and whether a law depending upon the existence of an emergency ceases to operate because the emergency had ceased is always open to judicial inquiry, notwithstanding the legislative declarations. Again and again through the opinion the court emphasizes the fact in varying language that in order to justify legislation like the mortgage moratorium acts there must exist a grave public emergency in the opinion of both the legislative and judicial branches of the government, and that when, in the opinion of the latter, the emergency which justifies the act has passed, of necessity the moratorium ceases to be effective, or, as it may be more emphatically put, becomes unconstitutional so far as future use is concerned. ’ ’

The Minnesota Act was held valid in an opinion written by one of our greatest jurists, the late Chief Justice Charles Evans Hughes, in which the Court held that the emergency legislation was within the reserved power of the state to protect the vital interests of the community, did not violate the contract clause, the due process clause or the equal protection clause of the Federal Constitution, and the Chief Justice commented that a review of the court’s decisions showed “a growing appreciation of public needs and of the necessity of finding ground for a rational compromise between individual rights and public welfare. ’ ’ The opinion cited numerous United States Supreme Court decisions in support thereof.

It would therefore seem to me that the only question is whether the situation that existed in Little Rock in September, 1958, was sufficiently inimical to the public safety and welfare to justify the legislation here involved. In reaching a conclusion as- to this matter, the Court will, of course, take judicial note of the conditions that existed at Central High School during the ’57-’58 school year. In commenting upon this situation, I do not primarily refer to the chaotic conditions existing outside the building, i.e., the crowds that had gathered in protest. I mainly have reference to those conditions that existed inside the school, and which were a daily part of student life. Let it first be said, that as far as I know, this is the first time in the history of this nation that troops have patrolled the halls or corridors of a school. I have divers times deliberated as to just how much education a teen-age boy or girl could acquire under such circumstances, and in addition, the frequent threat of bombings, and the systematic search through the lockers and other school property for possible bombs. Conditions could not have been -more abnormal, and I am persuaded that the average studexit could not but be adversely affected by such texxse axid unusual conditions.

With reference to the Governor’s proclamation closing the schools, -wherein it is stated “Domestic violence withixi the Little Rock School District is impending * * * ’ ’, the attorney who filed with this Court a very fine amicus curiae brief, stated: “There is no proof whatever ixi the record to sustain this determination.” I do not agree. No better criterion could be found thaxi what had already happened. The very fact that the Federal Government deemed it xxecessary to place troops within the school, speaks louder than a thousand words. I need no better evidexice thaxi that the Federal authorities themselves recognized such an emergency as had not heretofore existed, else the troops would not have been sent, or would have been withdrawn once the crowds had melted away. To the contrary, such troops remaixxed for the full school term of nine months, clear through graduation. However, this was not the end. At the time school was due to reopen, the Government sent in from over the county, various United States Marshals, and recruited and trained several dozen special deputy marshals to apparently perform the same duties that had previously been performed by the military. There, of course, was no occasion to recruit this force unless its use was contemplated. As stated in 16 C. J. S., Sec. 185:

“In the exercise of the police power legislatures may enact all laws necessary for the preservation of the rights of person and property from unlawful violence and disorder and the maintenance of good order throughout the state. Threatened disorders are equally subject to the police power as are actual disturbances of the public peace.

I cannot even remotely understand, nor comprehend, how any individual could contend that conditions were not such as required the use of the State’s police power for the purpose of maintaining peace,' good order, and the safety of the students of the senior high schools of Little Rock; in fact, I.do not consider it necessary that the situation reach the proportions, or magnitude, herein pointed out, before such legislation would he justified.

This Court has previously, even without the conditions herein cited, given the Legislature great leeway in controlling the subject of education. For instance, in Krause v. Thompson, 138 Ark. 571, 211 S. W. 925, the validity of a statute was questioned which provided for the consolidation of three school districts, and further provided:

“Until such time as the patrons of Pittsburg School District No. 41 and Oakland Special School District No. 19 which are hereby annexed to Lamar Special School District No. 39, shall by a majority petition request their discontinuance, public schools shall be taught in each for a period not exceeding seven months during each year at the places where schools have heretofore been taught and during such seasons as the patrons or a majority thereof may desire, and . . . teachers shall be employed upon the recommendation of a majority of the patrons of each school and shall be paid the same salary as teachers in the public schools of Lamar are paid for like or similar services, * *

This Court, in an opinion by the late Chief Justice Mc-Culloch, said:

“The Statute is assailed in the first place on the ground that it violates section 1, article 14 of the Constitution which pledges the State to ‘maintain a general, suitable and efficient system of free schools, whereby all persons in the State between the ages of six and twenty-one years may receive gratuitous instruction.’ If this section applies at all to the arrangement and management of school districts, it certainly does not hamper the Legislature in its control over that subject. We have frequently held that the legislative control over the organization of school districts and changes therein is supreme.”

Several cases substantiating this statement are then cited.

It is asserted by counsel in the amicus curiae brief, that Act 4 was not emergency legislation, and the fact that an election is called for, which would be determinative of whether the schools should be reopened, is proof of that fact. May it simply be said that I consider subsection (b) of Section 1 (which calls for the election), to be mere surplusage. It adds nothing to the power given the Governor to close a school, and that authority is fully effective without the provision, or the subsequent provisions relating to the election. The gravamen of the attack on Act 4 is the authority given the Governor to close schools — not those provisions relating to the reopening of same. A discussion, therefore, of the validity of those sections is unnecessary to a determination of the issue before us.

I feel that much could be added in support of the position herein taken, but to say more would only unduly prolong the opinion. This case has given me considerable concern, because of my deep-seated belief in public education. Perhaps that belief is, to some extent, predicated upon, and influenced by, the knowledge that except for our public school system, I should probably have found it most difficult to obtain an adequate elementary or secondary school education. I am convinced that the same is true with reference to thousands of my fellow citizens. It has thus been personally difficult for me to reach this decision, but I always come back to the same thought, vis., that education, under the conditions heretofore enumerated, cannot, even under the most elastic and flexible construction of the words, be considered “suitable” or “efficient” as provided by Article 14, Section 1, of our Constitution. The enthusiasm and energy of youth, which is used to such good advantage for the acquirement of knowledge in happy surroundings, may well be stifled in an environment of fear and restraint.

To sum up and concisely state my views, the Legislature could not, in the face of the provisions of the State Constitution, enact legislation abolishing the public school system, nor validly pass legislation closing permanently part of the schools. But, as herein pointed out, the law is well established that constitutional provisions may be suspended during periods of great emergency, and this principle applies to the requirements of both the Federal and State Constitutions. The United States Supreme Court, in the Blaisdell case, held that Section 10, Article 1, of the Federal Constitution was violated by the mortgage moratorium act, there under attack, but nontheless held such legislation valid because of the severe economic depression. In the litigation before us, we are not dealing with an economic crisis nor with financial losses — -but, to the contrary, with an emergency far more important — the health, safety and welfare of hundreds of our young people. Can any court logically say (as has been said by the United States Court and this Court) that a suspension of constitutional requirements is right and proper when economy is affected — but not right and proper when the physical and mental well-being of our citizens is at stake? To ask the question is but to answer it.

It is impossible to say for what period of time emergency legislation can remain in effect. The Minnesota Act provided that its provisions should become inoperative a little more than two years after it was approved. The Arizona Court held that the emergency was over some four years after the passage of the original act, though it might possibly have held such legislation invalid earlier, had same been tested. I can only say that when conditions become sufficiently normal that a student can pursue his quest for learning in surroundings conducive to same — then the need for the extraordinary powers herein granted, will have ceased. Until that time, I am forced to conclude that the pertinent provisions of Act 4 are valid and lawful. I fervently hope that time will soon arrive, and I am convinced that a more sympathetic and realistic approach to the problems (engendered by the Brown decision) by the appropriate Federal authorities, will hasten that day.

       The pertinent part of Section 17 provides: “No bill of attainer, ex post facto law, or law impairing the obligation of contracts shall •ever be passed.”

       Emphasis supplied.

       Emphasis supplied.

       Even if these portions of the Act he considered invalid, Act 4 contains a severance clause, Section 5, which recites that if any section or provision shall he held unconstitutional, such holding- shall not affect the remainder of the Act. The late Justice Prank Smith, in a concurring-opinion in the Reiman case, said: “However, act 21 and much similar legislation passed at the same session of the General Assembly manifests the purpose to accord the debtor the greatest indulgence which may be granted, and it is, therefore, reasonably certain that the legislation would have been enacted even though Section 2 were eliminated. It is well settled that the unconstitutional portion of a statute may be stricken out without impairing the effect of the remainder where the provisions are wholly independent and it can be seen that the lawmakers would have enacted the remaining part of the statute * *

       Section 1, Article 14: “Intelligence and virtue being the safeguards of liberty and the bulwark of a free and good government, the State shall ever maintain a general, suitable and efficient system of free schools whereby all persons in the State between the ages of six and twenty-one years may receive gratuitous instruction.”

       Of course, many school districts have been consolidated or annexed under legislative authority, where it appeared consolidation would be beneficial. This procedure has been followed for a long number of years, and has been many times declared valid.