author: Philip E. Dixon, Special Justice. Richard B. Adkisson, Chief Justice,

text:
    STATE of Arkansas v. Judon William GRAHAM
    CR 82-57
    642 S.W.2d 880
    Supreme Court of Arkansas
    Opinion delivered November 29, 1982
    [Rehearing denied January 10, 1983.]

      Steve Clark, Atty. Gen., by: Leslie M. Powell, Asst. Atty. Gen., for appellant.

      Lightle, Beebe, Raney ir Bell, by: A. Watson Bell, for appellee.

      Adkisson, J., would grant rehearing.

   Philip E. Dixon, Special Justice.

This is an appeal from an interlocutory order. It presents the single issue of the voluntariness of an in-custodial confession.

In sustaining Appellee’s motion to suppress the confession, the Trial Judge made, inter alia, the following ruling:

“In view of the defendant’s limited education, his illiteracy, his views toward uniformed authority, his psychological makeup, the custodial interrogation, and the totality of the circumstances, the Court is of the opinion that the statement obtained from the defendant was not a voluntary statement as defined by existing law.”

Appellee, Judon Graham, was contacted by Detective Sergeant Robert Dunaway of the White County Sheriff’s Office and State Police Investigator, Mary Kesterson, at his place of employment at the Pangburn School System. They requested that he accompany them to Searcy, Arkansas, to talk with them. Appellee agreed and drove his own vehicle to the White County Detention Center.

At the Detention Center, Appellee acknowledged that he was advised by the officers as to his constitutional rights as an accused, had questions asked him, and testified that he signed and understood the Rights Waiver.

After having signed the Rights Waiver, Graham was informed of the allegations that had been made against him by a student at the Pangburn School System.

The recent decision of this court in Davis v. State, 275 Ark. 264, 630 S.W.2d 1 (1982), clearly dictates that in ruling upon the suppression of a confession, each case must be determined by looking at the totality of the circumstances. This totality is subdivided into two main components; first, the statement of the officer, and second, the vulnerability of the defendant.

The Davis decision, supra, also sets forth the procedural rules that are applicable. The State bears the burden of proving by a preponderance of the evidence the voluntariness of an in-custodial confession, Ark. Stat. Ann. § 43-2105 (Repl. 1977). Any conflict in the testimony of different witnesses is for the trial court to resolve. Harvey v. State, 272 Ark. 19, 611 S.W.2d 762 (1981); Wright v. State, 267 Ark. 264, 590 S.W.2d 15 (1970). While this court does not reverse the Trial Court’s finding unless it is clearly erroneous, it does make an independent determination based on the totality of circumstances, with all doubts resolved in favor of individual rights and safeguards, to determine whether the holding of the trial court was erroneous. Davis, supra.

It is first necessary to examine the statements of the officer. At the hearing before the trial court, Officer Dun-away testified that he initially attempted to establish a rapport with Graham. He advised Graham that he would have no objection to handling the case in the Judge’s chamber, because Graham was concerned about an appearance in the Court room in the presence of people and representatives from the press. The officer also told Graham that he would try to see that this matter would be handled that way and, as far as he was concerned, there was no reason why it could not be done in this case. Officer Dunaway further told Graham that he would do all he could to see that the matter would be handled quietly and would try to keep the case from being sensationalized. The questioning officer also told Graham that his lack of a previous criminal record would be in his favor and that he would go to court as a first offender. In addition, Graham and Dunaway had a conversation about medical help that would be available to Graham and that he was told that it could perhaps be provided on an out-patient basis.

Secondly to be considered in the totality of the circumstances is the vulnerability of the accused. The testimony before the trial court in this regard was significant. Appellee testified that he was very concerned about what his family would think of his arrest and did not want any publicity and wanted the matter over with in a few weeks. He believed the statement of the Officer that he could be treated as an out-patient, and that he believed that Officer Dunaway knew what he was talking about. He further stated that he had never been in trouble with the law and had never had a police officer tell him something that wasn’t true. Of importance was the testimony of Graham that he believed that if he signed the statement, he would not have to go to the penitentiary and would just get mental help as an outpatient. He testified that he honestly believed it was going to be that way and that Officer Dunaway knew what he was talking about because he was the Sheriff, represented the law, Graham believed him, and that is the reason he signed the confession.

Testimony was also presented on behalf of Appellee by a clinical psychologist who stated that Graham could not read or write sufficiently to take any paper and pencil tests and that all questions had to be read to him. Additionally, Graham’s achievement level was somewhere at the second or third grade level and he was illiterate. The psychologist testified that Appellee was a very trusting person to anyone in a position of authority, and that in his opinion, Graham was willing to attest to something with which he did not basically agree because of the promise of an “easy way out” from pressure and from the publicity that he so greatly feared for himself and his family.

We do note, and affirm the trial court’s ruling, that Sergeant Dunaway did not intend to induce, mislead, misrepresent, or otherwise persuade or intimidate Appellee in order to obtain a statement. However, the critical issue to be resolved is how the conversations between the Officer and Appellee were perceived by Graham; here, the trial court found that because of Appellant’s limited education, illiteracy, respect for uniformed authority, psychological makeup and the totality of the circumstances, his statement was not voluntary, as defined by law.

It was for the trial court, as the fact finder, to weigh the evidence and resolve the credibility of the witnesses. Wright v. State, supra. We hold that the trial court’s ruling that the confession was not voluntarily and knowingly given was not clearly against the preponderance of the evidence.

Adkisson, C.J., dissents.

Hickman, J., not participating.

Richard B. Adkisson, Chief Justice,

dissenting. The issue in this case is the voluntariness of appellee’s confession. Voluntariness is determined by looking at (1) the police conduct involved, and (2) the characteristics of the accused. Here, the trial judge found no police misconduct:

The Court is of the opinion that Sgt. Dunaway, the officer who discussed these matters with the defendant, did not intend to induce, mislead, misrepresent, or otherwise persuade or intimidate the defendant in order to obtain a statement. Sgt. Dunaway’s experience with the judicial process . .. justified his comments to the defendant about these matters. It is also shown from the evidence that no promise or guarantees were made to the defendant.

The trial court found the officer made no promise to the defendant, that the officer had no intent to mislead the defendant, and all the comments of the officer were justified. Absent police misconduct the characteristics of the accused are irrelevant.

Involuntary confession cases originated with Brown v. Mississippi, 297 U.S. 278 (1936), where a deputy sheriff participated in the hanging of the defendant by a rope to a limb of a tree and participated in the whipping of the defendant. Based on these facts, his confession was held to be involuntary. This case and its progenies have primarily involved extreme police misconduct coupled with particularly vulnerable persons such as children. See Haley v. Ohio, 332 U.S. 596 (1948). These cases were never intended to apply to a situation where, as here, there was no police misconduct.

In any event, the appellee was not vulnerable within the meaning of these cases. The undisputed facts are that, except for illiteracy, the appellant was found to be without psychosis or neurosis and his personality structure was within normal limits. In other words, he was, génerally, a normal 51-year-old man with a full time job and a family who confessed in hope of avoiding any public embarrassment arising from his rape of a little girl.

For these reasons I would reverse and admit the confession in evidence.


source: Caselaw Access Project

author: George Rose Smith, Justice.

license: Public Domain

text:
    Leroy Rodney MILES v. STATE of Arkansas
    CR 79-60
    644 S.W.2d 240
    Supreme Court of Arkansas
    Opinion delivered December 6, 1982

      Claude S. Hawkins, Jr., for appellant.

      Steve Clark, Atty. Gen., by: William C. Mann, III, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

In 1979 Miles entered a negotiated plea of guilty to a charge of rape and received a 20-year sentence. He later filed a petition for post-conviction relief, but after a hearing the trial j udge denied relief. Of the eight points for reversal four have been abandoned by court-appointed appellate counsel for want of proof. There is likewise no merit in the other four.

One, Miles’s petition stated that while he was in jail awaiting trial Officers Dove and Tevady had made (unspecified) threats about what they would do if he did not plead guilty, but at the hearing Miles did not so testify. He did say that Dove had mistreated him, but he did not connect any such abuse with his plea of guilty. Moreover, he had stated at the recorded proceeding when his plea was accepted that no one had threatened him in any way. The trial judge was free to disbelieve Miles’s uncorroborated repudiation of his earlier assertions.

Two, Miles testified that his original counsel told him that he would get a sentence of only ten years, but that statement was contradicted at the hearing by the attorney and is contrary to the earlier record. The issue of credibility was for the trial judge to decide.

Three, Miles complains that the original trial j udge was related to the prosecuting attorney. Both Miles and his attorney, however, filed a waiver of the judge’s disqualification, as we suggested with regard to this same situation in Edmondson v. Farris, 263 Ark. 505, 565 S.W.2d 617 (1978). At the hearing below, Miles did not even testify with respect to this point. His former attorney testified that he had told Miles that he could either sign the waiver or wait until another judge could be appointed. That advice was correct.

Four, the charge of rape was based upon forcible anal intercourse committed by Miles upon another inmate of the jail. Miles now argues that at the sentencing he “never stated that the intercourse was voluntary on his part.” A plea of guilty, however, precludes the defendant from later raising a defense to the original charge. Irons v. State, 267 Ark. 469, 591 S.W.2d 650 (1980). The post-conviction issue is whether the plea was voluntary. Miles has not shown that his plea of guilty was involuntary.

Affirmed.


author: Frank Holt, Justice. John I. Purtle, Justice,

text:
    Billy WATERFIELD et ux v. James QUIMBY et ux
    82-130
    644 S.W.2d 241
    Supreme Court of Arkansas
    Opinion delivered December 6, 1982

      Denver L. Thornton, for appellants.

      Griffin, Rainwater if Draper, by: Paul S. Rainwater, for appellees.
   Frank Holt, Justice.

This is a personal injury action arising out of an automobile accident on January 15, 1974, in which appellant Brenda Waterfield allegedly suffered back injuries. The jury awarded her $1,000. Her husband, appellant Billy Waterfield, was awarded no recovery on his action for loss of consortium and his wife’s medical expenses. The appellants filed a motion for a new trial and a motion to vacate.the order, both of which were denied. We affirm.

The appellants first assert that the trial court erred in sending the typed instructions to the jury, which instructions contained crossed out but not obliterated words and handwritten alterations. Admittedly, no objection was made, but the appellants argue that there was no opportunity to object because the trial court did not allow counsel to review the instructions before they were given to the jury. Instead, the instructions were merely handed to the jury.

We agree with the appellees that the record reflects the court and counsel for the parties reviewed the proposed instructions in a conference out of the hearing of the jury, during which there were various objections to some of them by both parties. For instance, counsel for the appellants referred specifically, inter alia, to the court’s handwriting when he said: “The Court has handwritten as indicated that he would not give the value of any earnings lost.” This was plaintiffs’ requested instruction No. 18 (AMI 2201), which was given as modified by the court. A notation on this instruction reads “obj. to mod.” A similar objection was noted to the court’s modification of plaintiffs’ instruction No. 19 which the court deleted that part permitting recovery for future medical expenses. The record reflects that the other instructions were also discussed. Further, after closing arguments, the court stated to the jury:

. . . [Y]ou’ve now heard the arguments of counsel, as well as the testimony of the witnesses and the exhibits received in evidence and the instructions of law that have been given you by the Court. So that you won’t have to be passing a lot of messages back and forth, I’m going to go ahead and let you take to the Jury Room with you the instructions. . . .

The court then gave the jury a lengthy explanation of their responsibilities and the verdict forms before the instructions were handed to the jury without any objection being interposed.

We agree with the appellees that the record sufficiently establishes that counsel for the appellants had an opportunity to object to the action of the court but did not do so. Accordingly, we need not address this contention on appeal. Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). Furthermore, it is within the trial court’s discretion, even though one of the parties objects, to permit the jury to have the written instructions in the jury room during deliberation. Gambill v. Stroud, 258 Ark. 766, 531 S.W.2d 945 (1976). In any event, no prejudice has been shown. The instructions were read to the jury by the court. Nothing in them was confusing or illegible as a result of the handwritten modifications or the crossed out but unobliterated words. See ARCP, Rule 16, Missouri Pacific Railroad Company v. Watt, 186 Ark. 86, 52 S.W.2d 634 (1932); Eck v. Market Basket, 264 Or. 400, 505 P.2d 1156 (1973); and Universal Investment Co. v. Carpets, Inc., 16 Utah 2d 336, 400 P.2d 564 (1965).

The appellants next argue that the verdict is invalid because damages were awarded to Mrs. Waterfield but not to Mr. Waterfield. Although Mr. Waterfield testified that he paid the medical expenses, Mrs. Waterfield testified that she paid them and then that Mr. Waterfield paid them. It was possible, therefore, for the jury to conclude that it was compensating Mrs. Waterfield for the medical expenses incurred by her injuries when it awarded her $1,000. The total medical expenses were $176.60.

With respect to the issue of whether the verdict is inconsistent because no loss of consortium recovery is awarded to the spouse of the injured party, we agree with the cases holding that the jury need not, as a matter of law, give a pecuniary award for loss of consortium where damages are awarded to the injured spouse. It appears there is no fixed standard for ascertaining compensatory damages for loss of consortium. See MacCubbin v. Wallace, 42 Md. App. 325, 400 A.2d 461 (1979); and Cook v. Sweatt, 282 Ala. 177, 209 So.2d 891 (1965). Further, the only testimony on the loss of consortium was that of the appellants. The jury is not required to believe the testimony of any witness, particularly interested parties, since the testimony of interested parties is considered disputed as a matter of law. Bittle v. Smith, 254 Ark. 123, 491 S.W.2d 815 (1973); Zero Wholesale Gas Co., Inc. v. Stroud, 264 Ark. 27, 571 S.W.2d 74 (1978).

Appellants argue that the verdict must be set aside because of jury misconduct. This contention is based upon an affidavit from one juror stating remarks that allegedly were made by jurors describing the discussions during the course of jury deliberations. This affidavit plainly violates Rule 606 (b), Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001 (Repl. 1977), which provides:

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to asset [assent] to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received, but a juror may testify on the questions whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror.

To that effect see Martin v. Blackmon, 277 Ark. 190, 640 S.W.2d 435 (1982); Ashby v. State, 271 Ark. 239, 607 S.W.2d 675 (1980); Sanson v. Pullum, 273 Ark. 325, 619 S.W.2d 641 (1981); and Veasey v. State, 276 Ark. 457, 637 S.W.2d 545 (1982). Since this affidavit is inadmissible, there is no evidence of juror misconduct.

The appellants also contend that a new trial should be granted because the award of $1,000 to Mrs. Waterfield is inadequate. In cases predating the Arkansas Rules of Civil Procedure, we held that a jury verdict will not be set aside because of inadequacy of damages where the damages are not susceptible to reasonably precise pecuniary measurement, unless the award is so nominal as to amount to a refusal to assess damages. Bittle v. Smith, supra; and Tompkins v. Duncan, 255 Ark. 491, 501 S.W.2d 210 (1973).

In Taylor v. Boswell, 272 Ark. 354, 614 S.W.2d 505 (1981), we said:

Civil Procedure Rule 59 has superseded our former statute with respect to new trials on account of the smallness of the verdict. Ark. Stat. Ann. § 27-1902 (Repl. 1962). Rule 59 merely provides that a new trial may be granted for ‘error in the assessment of the amount of recovery, whether too large or too small.’ Our former rule was that when the verdict was for a substantial amount, as this one is, the trial judge’s denial of a new trial for inadequacy of the award would not be reversed unless there was other error or the evidence definitely established a pecuniary loss in excess of the verdict. Bittle v. Smith, 254 Ark. 123, 491 S.W.2d 815 (1973). We need not determine to just what extent our law has been changed by Rule 59, because the appellant would not be entitled to a reversal even under the superseded statute and the former case law.

As in Taylor we need not address the question of whether Rule 59 (a) (5) changes the Arkansas law in this area. (See Reporter’s note to Rule 59.) The jury’s award of $1,000 was more than five times the amount of the precisely proven medical expenses attributable to the accident. Therefore, whether viewed in light of the older Arkansas cases or the language of Rule 59 (a) (5), no new trial is called for due to inadequacy of damages.

The appellants also contend that the verdict is not supported by substantial evidence. Upon appeal, in testing the sufficiency of the evidence, we consider only the evidence of appellee or that part of all the evidence most favorable to the appellee and affirm if there is any substantial evidence to support the jury’s finding. Thrifty Rent-A-Car v. Jeffrey, 257 Ark. 904, 520 S.W.2d 304 (1975). Here, one physician testified that Mrs. Waterfield had sustained no permanent impairment as a result of her injury. The jury also could infer that Mrs. Waterfield’s injuries were not serious from the fact that she had not been treated for her injuries since 1977 and that she had been treated on only a few occasions between the accident of February 15, 1974, and 1977. We conclude that the verdict was supported by substantial evidence.

The appellants contend that the trial court erred in refusing to instruct the jury as to the value of earnings lost, loss of ability to earn in the future, disfigurement, and future medical care. There is no evidence of disfigurement in the record. As to the value of lost earnings, Mrs. Waterfield testified that she could not remember losing any income from missing work because of her injuries sustained in the accident. She testified that she was not working at the time of the accident, but that she had previously worked as a secretary and estimated that she could earn $700-$800 per month in that occupation. However, she had not sought secretarial work because she did not think she could function as a secretary due to her back injuries. For about three years prior to trial, she had worked as a teacher’s aide and library assistant at a local school. She had missed only one day of work due to her back problem and had lost no income. Her earnings were, at the time of trial, $460 per month for nine months each year. Her regular physician testified that he would hesitate to recommend her for work involving bending, twisting, lifting and stooping. An orthopedic surgeon called by the plaintiffs testified that her back injuries would preclude her from doing heavy manual labor. In our view, no basis was established upon which the jury could have concluded, except by speculation, that a loss of ability to earn as a secretary was established with reasonable certainty. Swenson v. Hampton, 244 Ark. 104, 424 S.W.2d 165 (1968); and Check v. Meredith, 243 Ark. 498, 420 S.W.2d 866 (1968).

With respect to the future medical expenses, one physician stated that Mrs. Waterfield may have to take medication for the rest of her life. There was, however, no evidence of the cost of any such future medication. Of the total $176.60 medical expenses, incurred during the seven years since the accident, the most recent expense had been incurred in November 1977, some four years prior to the trial. Any award for future medical expenses would have had to have been made on the basis of speculation and conjecture. There was a total lack of evidence as to what medical expenses, if any, appellants would incur in the future as a proximate result of her injuries. Therefore, there was insufficient foundation or basis established for a future award of medical expenses here. Roy v. Atkins, 276 Ark. 586, 637 S.W.2d 598 (1982). Accordingly, the trial court did not err in refusing to instruct on future medical expenses.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I disagree with the majority opinion affirming this case. I think it should be reversed and remanded for a new trial for reasons which will be set out below.

The majority dealt with the argument relating to alleged erroneous instructions. For example, plaintiffs’ requested instruction No. 19 (AMI 2201) was deleted in the following manner:

(1) The reasonable expense of any necessary medical care, treatment and services received, and the-prcscnt value of such expenses reasonably certain to be required in the future?

Plaintiffs’ instruction No. 18 (AMI 2201) was also modified by the court as follows:

First, the nature, extent, and duration and pcrmaneney of any injury, and whether it is temporary or permanent. (2202(c). In this regard you should consider the full extent of any injury sustained, even though the degree of injury is found by you to have proximately resulted from the aggravation of a condition that already existed and that predisposed Brenda Waterfield to injury to a greater extent than another any^person. (2203)
Second, any pain and suffering, and mental anguish, experienced in the past and reasonably certain to be experienced in the future. (2205)
Third, the value of any earnings lost. (2-206)
Fourth, the present value of any loss of ability to cam in-the future. (2207)
Fifth, any disfigurement and visible results of her injury.

Testimony by more than one physician was to the effect that appellant, Brenda P. Waterfield, would not be recommended for work involving bending, stooping, twisting and lifting. One orthopedic surgeon testified her injuries would preclude her from doing heavy manual labor. She was given a 10% permanent partial rating to the body as a whole by at least one doctor. In view of this medical testimony, I am positive that it was error for the court to delete that portion of the instruction relating to the permanency, as well as the loss of ability to earn in the future. The appellant testified she lost at least one day of work and that she had to stay in a stooped or bent position after sitting for any length of time. I think this is evidence from which the jury could have found she had lost wages and that she had visible results of her injury. Also, I think it was error for the court to delete that portion of the instruction relating to the present value of medical expenses reasonably certain to be required in the future. More than one doctor unequivocally stated she probably would have to take medication for the rest of her life.

The majority held that it was not error or the verdict was not invalid because no damages were awarded to the husband. At least the testimony was amgibuous as to which of the parties had paid medical expenses incurred. Certainly, the husband had the duty to pay this and he would, no doubt, have the duty to pay future medical expenses. Although we have not previously ruled on the matter of the invalidity of a verdict when a pecuniary award for loss was made to the injured spouse and denied to the one not receiving personal injury, I think we should have taken the other course and held such verdict to be invalid.

The majority held, in accordance with our prior cases, that an affidavit from a juror could not be introduced on anything except whether outside influence or extraneous prejudicial information was brought to the jury’s attention. I think our prior rulings, including this one, are too restrictive in this manner. For example, one juror stated the husband was probably out at the time of the accident conducting himself in a manner not appropriate for a married man. I am sure this was not presented as proper evidence. Therefore, at least one j uror considered extraneous prejudicial information.

For the above reasons I would reverse and remand for another trial.


author: Darrell Hickman, Justice. Steele Hays, Justice,

text:
    Joe Dale HEAD v. CADDO HILLS SCHOOL DISTRICT
    82-165
    644 S.W.2d 246
    Supreme Court of Arkansas
    Opinion delivered December 6, 1982

      Cearley, Mitchell ir Roachell, for appellant.
    G. Ross Smith, P.A., for appellee.
   Darrell Hickman, Justice.

This is a case involving the Fair Dismissal of Teachers Act of 1979; Ark. Stat. Ann. §§ 80-1264 through 80-1264.10 (Repl. 1980). We find the appellant, Joe Dale Head, had no right to appeal from a decision of the school board and, therefore, the judgment is affirmed.

Joe Dale Head was a probationary teacher in the Caddo Hills School District, serving his first year during the school year of 1979-1980. Near the end of the term, after he had signed a contract for the next year but before it was accepted, a controversy arose involving him and his students. The superintendent informed Head he would in all likelihood be up before the board for a nonrenewal or termination of his contract. The superintendent conducted an investigation and by letter dated July 23, 1980, Head was notified that the school board recommended that his contract for the next year be terminated or not renewed. The letter gave five reasons. Head requested a hearing and on August 14,1980, a hearing was held before the board. Head had counsel, a record was kept, and there is no question he was provided the formal requirements of due process. After the hearing, a motion was made to terminate Head’s contract for the school year 1980-1981, and it was approved with five votes. One member abstained.

Head appealed to the circuit court raising two reasons for reversal: That the school board’s action was a termination and that the school board did not comply with its own policies. The court considered the transcript of the hearing and other evidence and concluded that Head was not in fact terminated but simply that his contract had not been renewed, and since it involved a nonrenewal, as opposed to a termination, no hearing was required and no reasons had to be given for the renewal of a probationary teacher. The court was wrong because without doubt this was a case of termination and not the nonrenewal of a contract. The contract was delivered to Head in early spring of 1980. He signed it and returned it to the school. The Act provides that in the case of nonrenewal the teacher must be notified of that fact in writing during the term of the contract or within ten days after the end of the school year. By stipulation the parties agreed the school term ended May 23, 1980, and the school district’s policy clearly provided Head had to be notified his contract would not be renewed no later than ten days after the school term expired, which would be June 2nd. But the fact that Head was terminated is not relevant to our ultimate decision — which turns on the question of jurisdiction. His termination entitled Head to a hearing before the school board and the Board gave him one. Ark. Stat. Ann. § 80-1264 (Repl. 1980).

We have had seven cases before us involving the Fair Dismissal of Teachers Act. Chapman v. Hamburg Public Schools, 274 Ark. 391, 625 S.W.2d 477 (1981); Nordin v. Hartman Public Schools, 274 Ark. 402, 625 S.W.2d 483 (1981); Allred v. Little Rock School District, 274 Ark. 414, 625 S.W.2d 487 (1981); Springdale School District v. Jameson, 274 Ark. 78, 621 S.W.2d 860 (1981); Maxwell v. Southside School District, 273 Ark. 89, 618 S.W.2d 148 (1981); McElroy v. Jasper School District, 273 Ark. 143, 617 S.W.2d 356 (1981); Fullerton v. Southside School District, 272 Ark. 288, 613 S.W.2d 827 (1981). Nearly all of them have presented us with different questions, and required a decision interpreting this new Act. By this time certain questions have undoubtedly been answered. First, a probationary teacher, one that has been at a school for less than three consecutive years, is granted far less in the way of rights and legal protection than a teacher not on probation, that is, one with more than three consecutive years service. McElroy v. Jasper School District, supra. Before this Act was passed a school district could renew or decline to renew a teacher’s contract on an annual basis regardless of years of service, without any accountability for that decision. Cato v. Collins, 394 F. Supp. 629 (E.D. Ark. 1975) aff’d 539 F.2d 656 (8th Cir. 1976). That right of the school district still exists as to probationary techers, and no reason at all has to be given for a nonrenewal. Maxwell v. Southside School District, supra. The Act provides that a nonprobadonary teacher, “aggrieved by a decision of the school board”, has a right to appeal to the circuit court and then to this court. Ark. Stat. Ann. § 80-1264.9 (Repl. 1980).

But we have not decided a probationary teacher has a statutory right to appeal from a decision of the school board. In fact, we held that the statutory language quoted did not apply to a probationary teacher. Nordin v. Hartman Public Schools, supra. Therefore, such a teacher has no statutory right to appeal from a decision to the circuit court.

While the dictum in the Nordin case said that a probationary teacher had a right of appeal from a school board decision involving termination if “constitutional issues” were involved, the Act makes no such provision. The dictum in Nordin was no doubt in reference to the fact that no law can terminate any teacher because of discrimination. See Perry v. Sindermann, 408 U.S. 593 (1972) and Cochran v. Chidester School District, 456 F.Supp. 390 (W.D. Ark. 1978). But due process of law does not require that a teacher be granted a right to appeal to the circuit court. Due process does not require judicial review. Lott v. Pittman, 243 U.S. 588 (1916); Standard Oil Co. v. Missouri, 224 U.S. 270 (1912); Reetz v. Michigan, 188 U.S. 505 (1905). Due process only requires a proper hearing which the Act provides for.

Neither party addressed the question of jurisdiction of the circuit court below. This case arose in 1980 before our decisions in the cases of Nordin v. Hartman Public Schools, supra and Chapman v. Hamburg Public Schools, supra. But the question of whether Head had a right to appeal to circuit court is a jurisdictional question which we can address at any time. State v. Glenn, 267 Ark. 501, 592 S.W.2d 116 (1980); First Pyramid Life Ins. Co. of America v. Reed, 247 Ark. 1003, 449 S.W.2d 178 (1970); Smyrna Baptist Church v. Burbridge, 205 Ark. 108, 167 S.W.2d 501 (1943).

A probationary teacher’s remedy for an illegal termination is a suit for breach of contract. A nonprobationary teacher, “aggrieved” by the action of the board, has an exclusive remedy of appeal to the circuit court. Ark. Stat. Ann. § 80-1264.9 (b).

It might be more convenient for the teachers to have the circuit court review these matters, but that is nota judgment we can make. Only the General Assembly has that power.

Since there was no right to appeal to the circuit court, the circuit court should have dismissed the appeal.

Affirmed.

Purtle, Dudley and Hays, JJ., dissent.

Steele Hays, Justice,

dissenting. I agree with the majority that this appeal involves the termination, rather than the non-renewal, of a probationary teacher. But the majority opinion goes on to hold that a probationary teacher has no right to appeal a termination to circuit court under The Teacher Fair Dismissal Act, Act 766 of 1979, and there I disagree.

In Nordin v. Hartman Public Schools, 274 Ark. 402, 605 S.W.2d 483 (1981) we said that any teacher who is terminated is entitled to appeal to circuit court:

[The Teacher Fair Dismissal Act] provides that any teacher, probationary or otherwise, is entitled to a hearing before the school board and a subsequent appeal to the circuit court when the contract is ‘terminated’ as opposed to ‘non-renewed’. §§ 80-1264.4, 1264.5 and 1264.9. (my italics)

The majority dismisses our language in Nordin as merely dictum, intended to apply only where constitutional issues are present. But our statement of the law in Nordin was unconditional and the statutes we cited support what we said there.

Our difficulty stems from the fact that The Teacher Fair Dismissal Act lacks clarity and the legislative intent is obscure as to the rights of a probationary teacher to appeal a termination. But the better side of the argument favors upholding the right of appeal, because remedial legislation is to be broadly construed, Skelton v. B. C. Land Company, Inc., 260 Ark. 122, 539 S.W.2d 411 (1976) and because we are required to construe statutes in accordance with the common meaning of the words used. Phillips Petroleum Co. v. Heath, 254 Ark. 847, 497 S.W.2d 30 (1973).

The final sentence of Section 80-1264.9 (b) reads:

The exclusive remedy for any person aggrieved by the decision of the school board shall be an appeal therefrom to the circuit court of the county in which the school district is located, within thirty (30) days of the date of written notice of the action of the school board, (my italics.)

The majority correctly points out that this sentence is part of sub-paragraph (b), which deals entirely with non-probationary teachers, and on that reasoning concludes that only non-probationary teachers are given an appeal. To reach that interpretation one must alter the plain language of the Act by substituting the words “a non-probationary teacher” for “any person ...” simply because of the placement of the sentence. But the drafters were generally careful to distinguish between probationary and non-probationary teachers except where they meant both, and I am unwilling to interpret “any person” as meaning only a non-probationary teacher. The plain meaning of the words “any person” in the context of this legislation means both probationary and non-probationary teachers.

Moreover, Section 80-1264.4 provides that no teacher can be terminated on grounds that are arbitrary, capricious or discriminatory. But if the holding in this case is correct, and a probationary teacher is entitled to nothing more than a hearing before the board which has already acted to terminate that teacher, then The Teacher Fair Dismissal Act leaves the board itself as the only body to decide whether its own act of termination was arbitrary, capricious or discriminatory. Thus, the only review is before the same body that may have acted in the matter in the first instance. That construction is not compatible with traditional concepts of “fairness” which the Act purports to give all teachers, nor with our law that remedial statutes are to be broadly construed with appropriate regard to the spirit which prompted the enactment.

Purtle and Dudley, JJ., join in this dissenting opinion.


author: John I. Purtle, Justice. Steele Hays, Justice,

text:
    James T. CALABRIA et al v. THE CITY OF FAYETTEVILLE, Arkansas et al
    82-141
    644 S.W.2d 249
    Supreme Court of Arkansas
    Opinion delivered December 6, 1982
    [Rehearing denied January 10, 1983.]

      Cypert & Roy, by: Michael H. Mashburn, for appellants.

      James N. McCord, City Atty., for appellees.
   John I. Purtle, Justice.

This is an appeal from a decree of the Washington County Chancery Court declaring an ordinance of the city of Fayetteville to be valid. The decree specifically held that Fayetteville’s City Ordinance No. 1661, as amended, does not take or damage appellants’ property without just compensation and therefore is not in violation of Article 2 § 22 of the Arkansas Constitution. On appeal the appellants insist that Ark. Stat. Ann. § 76-2205 (Repl. 1981) and our decision in Arkansas State Highway Comm. v. Arkansas Power & Light Co., 231 Ark. 307, 330 S.W.2d 77 (1959), mandate a reversal of the chancellor’s ruling. Also, appellants argue that ordinance no. 1661 constitutes an unreasonable exercise of the police power. We agree with appellants’ argument and reverse and remand.

This is a declaratory judgment action by the appellants against the appellees. The facts are stipulated and the decree was rendered upon the pleadings and stipulations. Ordinance no. 1661, as amended, provides for development of service roads along controlled access highways. This particular service road is alongside the U.S. Highway 71 by-pass in the western part of the city of Fayetteville, Arkansas. This ordinance does not apply to any area of the city except controlled access highways. The crucial clause in the contested ordinance requires the owner and developer of land abutting a controlled access highway to construct a service road at his expense and dedicate the road to the city of Fayetteville. Sections 3 (a) and 3 (c) of ordinance 1661 provide in part:

(a) ... a service road may be constructed on state highway right-of-way by the published standards of the Arkansas Highway Department and acceptable to said Highway Department. The service road shall be provided at the expense of the developer.
(c) The service road (unless constructed on state highway right-of-way) and any property between it and the right-of-way to the controlled access highway shall be dedicated to the City of Fayetteville upon completion and acceptance.

In the present case the highway department had instituted condemnation proceedings and taken possession of this property under an order of taking. The service road has been completed and the trial on the amount of damages to be awarded the plaintiffs is yet to follow. The appellants brought an action for a declaratory judgment after the Arkansas State Highway Commission had reduced their deposit from $102,000 to $16,000, acting in reliance upon Fayetteville City Ordinance No. 1661, as amended.

Title 76, chapter 22 of the Arkansas Statutes deals with controlled access facilities. Section 76-2205 authorizes acquisition of private property by the state, county or city for the purpose of constructing controlled access facilities and service roads. The pertinent part of this section authorizes acquisition by “gift, devise, purchase, or condemnation.” All rights acquired under this section are in fee simple. There is no question but that the service road which is the subject of this action is a part of the controlled access facility. Section 76-2203 grants authority to the state, county, cities, towns and villages

... to plan, designate, establish, regulate, vacate, alter, improve, maintain, and provide controlled-access facilities for public use whenever such authority or authorities are of the opinion that traffic conditions, present or future, will justify such special facilities; provided, that within cities and villages, such authority shall be subject to such municipal consent as may be provided by law.

Chapter 28 of Title 19, Arkansas Statutes Annotated (Repl. 1980), authorizes building and zone regulations. Section 19-2829 (c) pertains to control of development and subdivision of land by cities and towns and states in pertinent part:

The regulations controlling the development of land may establish or provide for the minimum requirements as to: information to be included on the plat filed for record; the design and layout of the subdivision, including standards for lots and blocks, street rights-of-way, street and utility grades, and other similar items...
The regulations . . . may provide for the dedication of all rights-of-way to the public.

When the highway commission took this property, it deposited $102,000 into the registry of the court. The taking was, no doubt, pursuant to Ark. Stat. Ann. §§ 76-2201, et seq. (Repl. 1981). Under such an action it was their duty to pay just compensation to the owners of the property. Subsequently, the highway commission discovered the existence of Fayetteville’s Ordinance No. 1661 and under its apparent authority reduced their deposit by some $86,000. It is obvious the highway commission was taking advantage of the city ordinance to pay the landowner less than the actual value of the land. Act No. 385 of 1953 applies specifically to controlled access facilities. Ark. Stat. Ann. § 19-2829 is a general statute regulating various aspects of subdivisions and setting up a board of zoning adjustment. The two statutes may seem to overlap when facts develop such as exist in the case before us. We have held that a general statute does not apply if there is some specific statute on the same matter. Williams v. Pulaski County Election Comm., 249 Ark. 309, 459 S.W.2d 52 (1970). We held in Arkansas State Highway Comm. v. Arkansas Power & Light Co., supra, that a city could not acquire property under the guise of police power for construction of streets. That is, in effect, what the city of Fayetteville is attempting to do in the present case. However, looking in depth at the two sets of statutes, it is evident that the one (Ark. Stat. Ann. § 19-2829) deals exclusively and comprehensively with subdivisions across the state, while the other (Ark. Stat. Ann. §§ 76-2201, et seq.) addresses itself to controlled access facilities as defined in the statute. A subdivision is not a controlled access facility, even though it may abut one. It does not appear inconsistent considering the separate purposes of the aforementioned acts, that a developer should receive compensation for giving up a right-of-way along a controlled access facility while having to relinquish title and control of thé streets within a subdivision without being compensated. The General Assembly has seen fit to allow highway authorities to acquire property along access roads and compensate the owners for such property. We have many times held that it is the duty of this court to reconcile legislative enactments and permit both to stand, if possible. Ward v. Harwood, 239 Ark. 71, 387 S.W.2d 318 (1965). It is our opinion that Ark. Stat. Ann. §§ 76-2201, et seq. are applicable in this case and that Ark. Stat. Ann. § 19-2829 is not applicable under the facts as presented to us. Therefore, ordinance 1661, as amended, is in conflict with the provisions of the statute relating to controlled access facilities. If we were to permit ordinance 1661 to control, it would be a taking of private property without due process and in violation of the Constitution of the State of Arkansas, Article 2 § 22, and this we cannot allow. Therefore, the case is remanded with instructions to disregard the portions of ordinance 1661 which are in conflict with Ark. Stat. Ann. §§ 76-2201, et seq. and to otherwise proceed in a manner not inconsistent with this opinion.

Reversed and remanded.

Hays, Dudley and Smith, JJ., dissent.

Steele Hays, Justice,

dissenting. There is some uncertainty as to whether the appellants intend to develop their 77 acre tract adjacent to U.S. Highway 71 in Fayetteville. Appellants’ brief asserts there are no plans for development of the land and if that were the case, I could agree that the taking of a part of the tract for a frontage road without just compensation would violate our constitution. But the findings of the trial court reflect that appellants “desired and intended to subdivide and develop” the property and appellants take no exception to that finding in their brief. Hence, the issue is not whether appellants’ property is being taken without compensation, but whether the city can lawfully place reasonable conditions on the development of subdivisions within its borders. That issue is governed by principles discussed in Newton v. American Security Company, 201 Ark. 943, 148 S.W.2d 311 (1941), and were, I think, properly applied to the case by the trial court. I believe the case should be affirmed.

Smith and Dudley, JJ., join in this dissenting opinion.


author: Robert H. Dudley, Justice. Richard B. Adkisson, Chief Justice, John I. Purtle, Justice,

text:
    CITY OF LITTLE ROCK, Arkansas v. Ann CASH, T. SMITH, C. S. ROBINSON, Wilson WEBBER, Charles WATSON and G. JOHNSON
    82-143
    644 S.W.2d 229
    Supreme Court of Arkansas
    Opinion delivered December 6, 1982
    [Rehearing denied January 17, 1983.]

      R. Jack Magruder, III, City Atty., and Wright, Lindsey ir Jennings, by: Patrick J. Goss, for appellant and crossappellee.

      Henry ir Duckett, by: David P. Henry, for appellees and cross-appellants.
   Robert H. Dudley, Justice.

This interesting case presents many questions about illegal exactions and an attorney’s conflict of interests.

Ark. Stat. Ann. § 19-4201 through 19-4218 (Repl. 1980) authorized cities to purchase or construct waterworks systerns. In 1937 Ark. Stat. Ann. § 19-4219 (Repl. 1980) was enacted which authorized first and second class cities to create commissions to operate and manage their waterworks systems. That same year the City of Little Rock by ordinance created the Little Rock Waterworks Commission which operates and manages the system. The Board of Directors of the City, pursuant to § 19-4208, retained the authority to sell and encumber the property as well as to set rates. The same statute, § 19-4208, provides that the operating authority can pay surplus funds over to the city only after taking into account the cost of operations and maintenance, allowing for replacement costs and depreciation, providing for interest redemption and purchasing all outstanding bonds.

In 1965, the General Assembly, by Act 50, gave to the operating authority of any waterworks system the discretion to make voluntary contributions to the general fund of the municipality in lieu of taxes in return for police, fire and health protection. Ark. Stat. Ann. §§ 19-4273 through 19-4276 (Repl. 1980). The municipality cannot force payments to be made to it pursuant to this statute as the payments in lieu of taxes are discretionary with the operating authority.

In October, 1969, the City of Little Rock, by ordinance, levied a privilege tax on the waterworks commission. The tax was in the amount of $10,417 for the period of December 1, 1969 through December 31, 1969, and $125,000 for the year 1970. The ordinance contains the following provisions:

SECTION 3. The taxes hereby levied shall be paid in addition to any sums paid by the Little Rock Municipal Water Works under the provisions of Act 50 of 1965.
SECTION 4. The Little Rock Municipal Water Works is hereby authorized to pass on said taxes by levying an additional charge of twenty-five cents (25í) a month per meter upon resident consumers. The Water Works may terminate the services of any consumer who fails to pay such charge when due.

An identical ordinance was passed for the years 1971, 1972 and 1975. Beginning in 1973, the ordinances authorized the waterworks to levy a charge in the amount necessary to collect the amount of the tax, which was $167,652 in 1974; $144,000 in 1975; $145,000 in 1976; $146,500 in 1977; $148,500 in 1978; $156,822 in 1979; $322,500 in 1980; $339,066 in 1981 and $340,000 in 1982. The taxes have been paid to the city on a monthly basis at the rate of l/12th of the yearly levy.

On August 25, 1981, six residents of the city who were water users filed suit in the chancery court against the City of Little Rock alleging that the privilege tax was an illegal exaction prohibited by Article 16, § 13 of the Arkansas Constitution. The six taxpayers were represented by David Henry, a former assistant city attorney, who, at the time he filed this suit against the city, also was defending the city in another case for a fee. The city filed a motion asking that David Henry be disqualified because of his conflict of interests. The trial court refused to disqualify the attorney, found an illegal exaction, gave judgment against the city in the amount of $1,264,761.30 through March, 1982, plus interest at the rate of ten percent per annum until paid, and awarded David Henry an attorney’s fee in the amount of $316,190.00. We affirm the holding that the privilege tax is an illegal exaction, modify theamountof the judgment and disallow the attorney’s fee.

The illegal exaction. Municipalities have only those powers that have been delegated to them by statutes or by the Constitution, and any substantial doubt about the existence of a power in a municipal corporation must be resolved against it. Town of Dyess v. Williams, 247 Ark. 155, 444 S.W.2d 701 (1969), citing City of Little Rock v. Raines, 241 Ark. 1071, 411 S.W.2d 486 (1967) and Yancey v. City of Searcy, 213 Ark. 673, 212 S.W.2d 546 (1948). A city tax which is not authorized by a delegated power of taxation is an illegal exaction. Schuman v. Ouachita County, 218 Ark. 46, 234 S.W.2d 42 (1950), citing Waters Pierce Oil Co. v. Little Rock, 39 Ark. 412 (1882).

Appellant city tacitly concedes that there is no constitutional or statutory authority delegating to it the authority to levy this privilege tax. However, it argues that, although its ordinance labeled the assessment a privilege tax, it is not really a tax. It contends that the terms franchise fee, franchise tax, rate, assessments, charges, privilege tax and privilege fee are interchangeable, and the use of one term instead of another does not necessarily invalidate a legislative enactment. See Eaton v. McCuen, 273 Ark. 154, 617 S.W.2d 341 (1981); Holman v. City of Dierks, 217 Ark. 677, 233 S.W.2d 392 (1950). The city then inductively reasons that the assessment or charge or rate imposed by the ordinances should be treated as a part of the rate for water validly set by the municipality pursuant to § 19-4208.

The appellant’s argument fails for a number of reasons. First, the assessment obviously is not a charge for services rendered to the waterworks. Those services are paid for in lieu of taxes pursuant to statutes, §§ 19-4274 and 19-4275, and are discretionary with the operating authority. Conversely, the tax before us is mandatory, in a set amount, and the ordinances provide that "the taxes hereby levied shall be paid in addition to any sums paid by the Little Rock Municipal Waterworks under the provisions of Act 50 of 1965.” Second, all other payments by the waterworks to the municipality which come from water rates must come from surplus accumulated in the operation fund only after taking into account the cost of operations and maintenance, allowing for replacement costs and depreciation, providing for interest redemption and the purchasing of all outstanding bonds. § 19-4208. Here the tax, originally at 25 cents per meter, was levied on the waterworks and passed on to the customer and then paid by the customer and passed directly back to the city without regard to the cost of operations, maintenance, depreciation and debt as set out above. Thus, it was not a part of the water rate. Third, the assessment was designated a privilege tax by the ordinances. It was clearly a tax, an unauthorized tax, and therefore an illegal exaction. We affirm the chancellor in so holding.

Contrary to appellant’s argument, Section 9 of Act 23 of the 1981 Extraordinary Session of the General Assembly does not authorize the imposition of the privilege tax challenged in this case. We affirm the chancellor’s granting of injunctive relief.

The amount of the illegal exaction to be recovered. The appellees argue, on cross-appeal, that no statute of limitations should have been applied and that they should be allowed to recover all money illegally exacted, over $2,000,000. The appellant contends the following in the alternative: that no refund is due, that the three year statute of limitations applies, or that the five year limitation should be applied and the recovery should be limited accordingly.

We do not find it necessary to decide the issues concerning statutes of limitation because we have always followed the common law rule prohibiting the recovery of voluntarily paid taxes. See, e.g., Searcy County v. Stephenson, 244 Ark. 54, 424 S.W.2d 369 (1968); Thompson, Comm’r. v. Continental Southern Lines, Inc., 222 Ark. 108, 257 SW.2d 375 (1953).

In Thompson, supra, this Court stated the general rule as follows:

Appellee seeks to recover voluntary payments made of taxes. This can not be done. Cooley in The Law of Taxation, Ch. 20, § 1282, gives this rule: “It is well settled that if the payment of a tax is a voluntary payment, it cannot be recovered back, except where a recovery is authorized by the provisions of a governing statute regardless of whether the payment is voluntary or compulsory.” (Vol. 3 at p. 2561); and further: “Where voluntary payments are not recoverable, it is immaterial that the tax or assessment has been illegally laid, or even that the law under which it was laid was. unconstitutional. The principle is an ancient one in the common law, and is of general application. Every man is supposed to know the law, and if he voluntarily makes a payment which the law would not compel him to make, he cannot afterwards assign his ignorance of the law as a reason why the State should furnish him with legal remedies to recover it back. Ignorance or mistake of law by one who voluntarily pays a tax illegally assessed furnishes no ground of recovery.” (Vol. 3 at page 2564).

This Court, one paragraph later, noted that Arkansas had no statute on the subject and that we follow the common law rule:

In Brunson v. Board of Directors of Crawford County Levee Dist., 104 Ark. 24, 153 S.W. 828, 829, 44 L.R.A., N.S., 293, Mr. Justice Hart, speaking for the Court, said: “In some of the states the right to recover illegal taxes paid under protest is given by statute. In this state, however, there is no statute regulating the matter, and if any recovery is had it must be under the rules of the common law. The common-law rule governing cases of this kind is laid down in the following cases: Lamborn v. County Commissioners, 97 U.S. 181, 24 L.Ed. 926; Union Pacific R. R. Co. v. Dodge County, 98 U.S. 541, 25 L.Ed. 196. These cases lay down the following rule: ‘Where a party pays an illegal demand, with full knowledge of all the facts which render such demand illegal, without an immediate and urgent necessity therefor, or unless to release (not to avoid) his person or property from detention, or to prevent an immediate seizure of his person or property, such payment must be deemed voluntary, and cannot be recovered back. And the fact that the party, at the time of making the payment, files a written protest, does not make the payment involuntary.’ ”

Id. at 115, 257 S.W.2d at 379.

Appellees contend that the common law rule prohibiting the recovery of voluntarily paid taxes has never been applied to an illegal exaction. While no case has specifically stated that the common law rule is applicable to recoveries pursuant to Article 16, § 13, the language quoted above clearly encompasses an illegal exaction under the constitutional provision. In addition, several of our cases have applied the common law rule to unconstitutional and illegal taxes rather than just to taxes illegally assessed or collected. See, e.g., Gates v. Bank of Commerce & Trust Co., 185 Ark. 502, 47 S.W.2d 806 (1931). Thus, the common law rule prohibiting the recovery of voluntarily paid taxes is applicable to illegal exactions which violate Article 16, § 13 of the Arkansas Constitution.

The trial judge was aware of this common law rule but held that the payments made under the challenged ordinances were not voluntary because the ordinances provided that the waterworks could discontinue the water service of any customer who failed to pay the tax. For example, the 1970 ordinance provided:

The Little Rock Municipal Water Works is hereby authorized to pass on said taxes by levying an additional charge of twenty-five cents (25Í) a month per meter upon resident consumers. The Water Works may terminate the services of any consumer who fails to pay such charge when due.

The case of Chapman & Dewey Land Co. v. Board of Directors St. Francis Levee District, 172 Ark. 414, 288 S.W. 910 (1926) is dispositive on the voluntariness issue. A part of that opinion is as follows:

Under these decisions, the coercion which will render a payment of taxes involuntary must consist of some actual or threatened exercise of power possessed by the party exacting or receiving payment over the person or property, from which the latter has no reasonable means of immediate relief, except by making payment.
But it is insisted by counsel for the plaintiff that the taxes alleged in the complaint takes the case at bar out of the operation of the principle decided in these cases and brings it within the rule announced in Dickinson v. Housley, 130 Ark. 259, 197 S.W. 25. We do not think so. In that case the collector refused to accept any sum less than the full amount demanded, and had the power to have sold the lands of the taxpayer in payment of the illegal tax. This would have constituted a cloud upon the title, and it became necessary for the owner to pay the illegal demand in order to prevent the sale. No such power existed in the board in the case at bar. If the plaintiff had refused to pay the taxes, the board of directors would have been compelled to institute proceedings against the landowner in the chancery court to collect the taxes, and the plaintiff could have presented the same matters as are set up in this case to defeat the collection of the taxes. In short, it could have defended a suit to collect the taxes upon the same ground that it bases its right to recover the taxes which it voluntarily paid.

Id. at 416, 288 S.W. at 911.

Likewise, the City of Little Rock, the party receiving payment, had no power to have the services of any consumer terminated. That discretionary power was given to the Little Rock Municipal Waterworks and, in turn, it never adopted any policy to terminate service to a customer who refused to pay the tax. Significantly, not one person testified that he or she in fact paid the tax because of coercion. Thus, we hold that the chancellor erred in failing to apply the common law rule prohibiting the recovery of voluntarily paid taxes. The taxes were involuntarily paid only after the date this suit was filed, August 25, 1981. All taxpayers, not just the six named plaintiffs, will be deemed to have paid their taxes involuntarily from the date of the complaint because all taxpayers, not just the named plaintiffs, are the real parties in this action. McCarroll v. Farrar, 199 Ark. 320, 134 S.W.2d 561 (1939).

The chancellor enjoined the appellant from assessing and collecting the privilege taxes before us, but then stayed the decree. As a result, the collection of these taxes has continued during the pendency of this appeal. We hold that all privilege taxes collected pursuant to the unconstitutional ordinances from the date of the filing of the complaint must be refunded, less reasonable costs of administration.

The attorney’s conflict of interests. Appellant contends that the trial court erred in refusing to disqualify appellees’ attorney. We agree, but reversal is not the proper remedy in this case.

In its motion to disqualify appellees’ attorney the appellant pleaded as follows:

Plaintiffs’ Counsel, David P. Henry, has filed this cause challenging a series of ordinances enacted by the City of Little Rock in 1969 and each year thereafter.
Said Counsel was employed by the City of Little Rock as an Assistant City Attorney, beginning on or about September 6, 1971, with said employment continuing until August 11, 1978. Further, said Counsel has represented the City of Little Rock since that time on other matters and remains the attorney of record for the City in the case of Phillips v. Weeks before Judge Eisele.

The appellant proved that appellees’ attorney had adverse interests as he was representing the city at the same time he was suing the city. The pertinent testimony, taken prior to trial on the appellant’s motion to have appellees’ attorney disqualified, is as follows:

Q. [Mr. Magruder, City Attorney]
Do you deny that you are currently the attorney of record in the Phillips v. Weeks lawsuit?
A. [Mr. Henry, Appellees’ Attorney]
No.
Q. Do you deny that the lawsuit is still pending, even though it’s been submitted back to the Court?
A. It’s not pending from the standpoint of anything to be done by the attorneys of record.
Q. That’s my point. It is, nevertheless, still pending, is it not?
A. Well, I have trouble with such a narrow —
Q. (Interposing) Let me see if I can confine that a little bit more for you. Would you identify this as Defendant’s Exhibit Number Two?
A. (Witness continuing) I can respond to your question, but I can’t do it with a yes or a no.
Q. Let me show you what has been identified as Defendant’s Exhibit Two and purports to be a certified copy from the United States District Clerk stating that the case is pending and you are the attorney of record. Would you disagree with that?
A. I don’t know what the U.S. District Clerk knows about the case or what his certification has to do with it. In my opinion, most or ninety-nine percent of the issues in that case has been resolved, and there is one unresolved issue pertaining to the police department practice of holding people under investigation.
Q. That issue is unresolved?
A. That one issue. To me, the case of Phillips v. Weeks is a dead horse. Now, I wouldn’t call that pending.
Mr. Magruder. Your Honor, I would offer at this point for Defendant’s Exhibit Two the certified copy from the U.S. District Court Clerk,
The Court. It’ll go in without objection.
# # #
Q. [Mr. Magruder cont.) Let me show you what has been identified as Defendant’s Exhibit Four which purports to be a series of statements or bills sent by the firm of Henry and Duckett to the City of Little Rock on the Phillips v. Weeks, and I ask if you recognize those. A. I recognize them, but one doesn’t have anything to do with Phillips v. Weeks. Two of them don’t.
* # *
Mr. Magruder. To make the record clear, Your Honor, I’d like of offer Defendant’s Ten, which is a copy of the Resolution by the City Board directing my office to pursue the disqualification of Mr. Henry.

Though we do not question the good faith of the attorney, both the conflict of interest and the appearance of it are too strong to ignore. The representation of conflicting or adverse interests will most often constitute professional misconduct. A lawyer is charged with a high degree of loyalty to his client. Suing and defending the same client at the same time is, at the very best, unseemly in that regard. The law holds an attorney to a high standard of professional conduct which includes the obligation to avoid even the appearance of impropriety. Code of Professional Responsibility Canon 9. Certainly, the attorney has not succeeded in avoiding such an appearance in the instant case.

Mr. Henry testified that the city attorney had assured him that the case of Phillips v. Weeks would never serve as the basis for a motion to disqualify. However, the City, by formal resolution of its Board of Directors on September 1, 1981, authorized the city attorney to move for disqualification. Even though the city attorney may have assured appellees’ attorney that conflicting representation would not be a basis for disqualification, it was a vain and useless act. The Supreme Court of New Jersey aptly and adroitly addressed the issue as follows:

Dual representation is particularly troublesome where one of the clients is a governmental body. So, an attorney may not represent both a governmental body and a private client merely because disclosure was made and they are agreeable that he represent both interests. As Mr. Justice Hall said in Ahto v. Weaver, 39 N.J. 418, 431, 189 A.2d 27, 34 (1963), “Where the public interest is involved, he may not represent conflicting interests even with consent of all concerned. Drinker, Legal Ethics, 120 (1953); American Bar Association, Opinions of the Committee on Professional Ethics and Grievances 89, 183 (1957).” Mr. Chief Justice Weintraub in a “Notice to the Bar,” 86 N.J.L.J. 713 (1963), stated:
“Because of some matters called to its attention, the Supreme Court wishes to publicize its view of the responsibility of a member of the Bar when he is attorney for a municipality or other public agency and also represents private clients whose interests come before or are affected by it. In such circumstances the Supreme Coujrt considers that the attorney has the affirmative ethical responsibility immediately and fully to disclose his conflict of interest, to withdraw completely from representing both the municipality or agency and
the private client with respect to such matter, and to recommend to the municipality or agency that it retain independent counsel. Where the public interest is involved, disclosure alone is not sufficient since the attorney may not represent conflicting interests even with the consent of all concerned. (Emphasis added.)

Re A. and B., 44 N.J. 331, 209 A.2d 101, 102-03, 17 ALR 3d 827 (1965).

The trial court was clearly in error in refusing to disqualify appellees’ attorney, but we do not consider reversal to be the proper remedy in this particular case. However, we cannot allow the attorney to profit from the impropriety. Accordingly, we refuse to approve an attorney’s fee, although an award of attorney’s fees in tax refund cases is authorized by Ark. Stat. Ann. § 84-4601 (Repl. 1980).

Other issues. Appellant city asserts a number of other points and asks reversal on each of them. While we agree that the trial court committed other errors, they are not prejudicial errors and do not require reversal.

The appellant contends that the trial court erred in refusing to require appellees to comply with ARCP Rule 23, the class action rule. We agree. Appellees were not seeking just the return of their property which had been illegally exacted, but instead in their complaint asked for over $2,000,000, attorney’s fees and a permanent injunction against the tax. Rule 23 does not conflict with the constitutional provision: it sérves as a rule of procedure in a class action case of this nature. As stated by Garner, Sloan and Haley in Taxpayers Suits to Prevent Illegal Exactions in Arkansas, 8 Ark.L.Rev. 129 (1954) at 135:

Unlike certain other provisions in the Arkansas Constitution, Article XVI, Section 13 is self-executing. But even though no legislative declaration is required for its efficacy, there is authority to the effect that the legislature may regulate the procedure so long as the Constitutional guarantee is not abridged. Certainly it is agreed that the statute of limitations applies to actions under this provision, just as in any other litigious circumstance. But equally certainly any statute that conflicts with, or restricts the scope of, this provision is void .... [footnotes omitted.]

The trial judge should have made the appellees comply with Rule 23, but there is no prejudice. Our common law makes the type of action a class action and requires a complete adjudication of a fully adversary case. In McCarroll v. Farrar, 199 Ark. 320, 134 S.W.2d 561 (1939), this Court quoted from Rigsby v. Ruraldale Consolidated School District No. 64, 180 Ark. 122, 20 S.W.2d 624 (1929) as follows:

Where a citizen and taxpayer brings an action in behalf of himself and other taxpayers against a municipality every citizen is regarded as a party to the proceedings, and is bound by the judgment entered therein. In such cases the people are regarded as the real parties. For example the judgment in a suit brought by taxpayers of a town against the town and a railroad company, to enjoin the issue by the town of bonds to the company, by which it is adjudged that such bonds should issue, is binding on all the other taxpayers of the town, though not parties to the suit, and the questions involved therein are res judicata in a second suit by another taxpayer to restrain the payment of interest on the bonds. In all such cases, however, the first judgment must be bona fide.

Here there was a final adjudication of a fully developed adversary case. As a matter of law this was a class action. Thus no prejudice has been suffered by appellant as a result of the ruling.

The chancellor also erred in not requiring that the Attorney General be served with notice of the proceeding and be given an opportunity to be heard as required by Ark. Stat. Ann. § 34-2510. See, e.g., Roberts, County Judge v. Watts, County Clerk, 263 Ark. 822, 568 S.W.2d 1 (1978). Appellees argue that § 34-2510 is not applicable to this case because this is not a declaratory judgment action but rather is simply a suit pursuant to a self-executing constitutional provision to recover illegally exacted money. That argument overlooks the fact that this is a class action seeking to declare thirteen past and present ordinances invalid and seeking a permanent injunction against future collections of the privilege tax. Since the statute requires service on the Attorney General but does not require him to appear or to be made a party, the requirement of service is not jurisdictional. Therefore, even though noncompliance with the notice requirement is generally reversible error, reversal is not mandated by the statute. The purpose of the notice requirement is to prevent an ordinance or statute from being declared unconstitutional in a proceeding which might not be a fully adversary and complete adjudication. Frequently, the Attorney General chooses not to appear in cases of this nature. In this particular case the attorneys for the City of Little Rock prepared exhaustive briefs in both the trial and appellate courts and our own research fails to disclose any points not argued. Thus we find no prejudice to appellant as a result of this error. This holding is limited to the facts of this particular case.

The appellant similarly contends that the trial court erred procedurally in not requiring that the operating authority and its commissioners be made parties pursuant to Ark. Stat. Ann. § 34-2510. The ordinances levied the tax against the waterworks and technically it is a necessary party. However, the same ordinance passed on the tax to the consumer and thus the waterworks was merely a conduit for the City of Little Rock. As a result, the matter is one of form and not substance. Hence, there is no prejudice to any of the parties and we do not reverse on this point.

This case comes to us on appeal from chancery court. On appeal we hear equity cases de novo on the record made below and will generally attempt to resolve all issues and dispose of them. Ferguson v. Green, 266 Ark. 556, 587 S.W.2d 18 (1979). The appellate court may always enter such judgment as the chancery court should have entered upon the undisputed facts in the record. Larey, Comm’r. v. Continental Southern Lines, 243 Ark. 278, 419 S.W.2d 610 (1967). The illegal taxes are still being collected and that ought to be stopped. In addition, we are satisfied that, as a practical matter, it would be a waste of judicial resources to reverse and remand on the basis of the errors discussed above. This case has been extensively litigated and, because rectifying these procedural matters would not affect the outcome on the merits, no purpose would be served by a reversal.

Appellant contends that no refund may be had because Article 16, § 13 of the Arkansas Constitution provides only for injunctive relief. The constitutional provision has not been so narrowly construed. As correctly and concisely stated in 8 Ark.L.Rev. 129 at 133, supra:

Injunctive relief is by far the most frequent remedy sought by complainants when suing under the authority of Article XVI, Section 13; but it is not the only remedy. Suits have been brought, and allowed, to cancel a deed; to recover sums of money; to have an ordinance declared void; to set aside a default judgment; to appeal a quorum court action; to have an accounting of taxes collected but not accounted for; and so forth. Also it has been held that mandamus lies at the instance of a taxpayer to compel officers to comply with an initiated act fixing their salaries and compensation. [Footnotes omitted.]

Appellant also contends that the chancellor erred in awarding post-judgment interest. We find no error. The award of post-judgment interest was correct. Ark. Stat. Ann. § 29-124 (Repl. 1979) provides that judgments shall bear interest at the rate of 10 percent per annum. In applying this statute, this Court in Shofner, Administrator v. Jones, 201 Ark. 540, 145 S.W.2d 350 (1940), stated:

The legislative intent seems to have been that all judgments should bear interest except those expressly excluded; and since claims against estates when converted into judgments are not excepted, the rule inclusio unius est exlusio alterius applies. . . .

Since judgments against municipalities are not excluded in Ark. Stat. Ann. § 29-124, the holding requires that the judgment entered bear interest until paid at the rate of 10 percent per annum.

The appellant is correct in its contention that the full amount of the refund should not be awarded personally to appellees. As we stated in Laman v. Moore, 193 Ark. 446, 100 S.W.2d 971 (1937): “Neither the original plaintiff nor the intervenor could recover a personal judgment against any of the appellees except for the benefit of all taxpayers of the City.” The appellees are appearing as representatives of a class. Accordingly, the judgment must be modified to reflect that the refund is for the benefit of all taxpayers.

Numerous other points are raised but we do not consider it necessary to decide them because of the disposition of the case.

The appellant did not designate as a point of appeal the system of refunding which was ordered by the trial court.

The case is affirmed in part, modified in part and remanded to the trial court for refund proceedings which shall be consistent with this opinion.

Adkisson, C.J., and Purtle, J., dissent.

Hays, J., not participating.

Richard B. Adkisson, Chief Justice,

dissenting. I dissent from the denial of the attorney fee. The sanction applied in this case far exceeds the impropriety. No consideration is given to the public service performed by this attorney in stopping the illegal exaction.

John I. Purtle, Justice, dissenting in part, concurring in part. The majority opinion sets out sufficient facts for a clear understanding of this case with the exception of that portion of the record relating to t^ie relationship of the appellees’ attorney and the appellant in this case. I feel the majority should have quoted that part of the record where the attorney for the appellees in the present case offered to give the Phillips v. Weeks file back to the city attorney because he feared it might become the subject of a motion to disqualify. Part of Mr. Henry’s testimony was:

Mr. Magruder told us he didn’t want the Phillips v. Weeks file back and that if we would keep it, it would never serve as a basis for any motion to disqualify.

It should be pbinted out that all of the ordinances which the appellant claims were enacted with the approval of attorney Henry were nothing more than the same ordinances being reenacted several times. Every year when the city decided to levy this illegal tax they upped the ante and required a larger payment by the Water Works Commission, which is a tool in the hands of the City Directors of the City of Little Rock, Arkansas. Also, it should be kept in mind that the ultimate parties responsible for the payment of this illegal tax were the customers of the City of Little Rock Water Works Commission.

The attorney for the appellant engaged in the private practice of law with the full knowledge and consent of the Board of Directors for the City of Little Rock. He later instituted a suit to force the city to refund monies they had illegally collected from the public. They contend it is unfair because he gained such knowledge while he was an assistant city attorney which now constitutes an adverse interest. Nonsense! The ordinances are public records and are actually published in the newspapers in order that the public might become aware of them.

I have no doubt that the present attorney for the appellant feels that he has misled attorney Henry because he has been forced by the board of directors to back down on his word that the Phillips v. Weeks case would never be used to disqualify him.

The truth of the matter is that it is none of the board’s business as to whether David Henry receives $5 or $500,000 in this case. It is not coming from the pockets of the city. The city is only respnsible for the refund they have been ordered to make. Therefore, they have no standing to argue this point. The fee allowed by the chancellor is a part of the recovery made by the efforts of Mr. Henry and his associates. So far as I am concerned, attorney David Henry has acted with the utmost honesty and frankness in this entire matter. Certainly, it cannot be said of him that he backed down on his word. If those who recover the funds are satisfied with the amount of attorney’s fee allowed, then it should be allowed. Certainly, the city attempted to defeat the rights of these same people from collecting anything whatsoever. Now it looks to me like a case of sour grapes.

I would reduce the attorney’s fee in the same proportion that the amount of the recovery is reduced and allow him the 25% authorized by the trial court, provided his clients do not object.

Dissenting Opinion on Denial of Rehearing delivered January 17, 1983

John I. Purtle, Justice,

dissenting. I would grant the petition for rehearing in the matter of the appellant’s attorney fee. The attorney had absolutely no conflict of interest. The City of Little Rock obviously broke its word of honor. The City further persuaded a majority of this court to deny the attorney any compensation whatsoever for his work, which action by the City smacks of pure spite and retaliation. If it were the intent of the majority to chill and discourage attorneys from undertaking class actions against a governmental unit then the opinion is eminently successful. We should right the wrong which we committed in the initial opinion. I would grant the rehearing.


author: Robert H. Dudley, Justice.

text:
    FORD LIFE INSURANCE COMPANY & FORD MOTOR CREDIT COMPANY v. Hon. Olan PARKER, Jr., Circuit Judge
    82-147
    644 S.W.2d 239
    Supreme Court of Arkansas
    Opinion delivered December 6, 1982

      Smith & Nixon, by: W. R. Nixon, Jr., for petitioners.

      Steve Clark, Atty. Gen., by: Jeffrey A. Bell, Asst. Atty. Gen., for respondent.
   Robert H. Dudley, Justice.

This case was originally filed against petitioners, Ford Life Insurance Company and Ford Motor Credit Company, in circuit court. Petitioners then removed the case to federal district court. After discovery in federal court, the plaintiff took a voluntary non-suit and refiled the case in circuit court against petitioners and additional resident defendants. Defective summonses were issued and served upon petitioners. The summonses were defective because they advised petitioners that they had 20 days to answer instead of the 30 days allowed to out-of-state defendants, and they advised them to serve their answers on plaintiff’s attorney instead of filing them with the court clerk. The trial court refused to quash the summonses. Petitioners now seek a writ of prohibition to prevent the trial court from exercising jurisdiction. Jurisdiction to hear the petition for the writ of prohibition is in this Court pursuant to Rule 29 (1) (f). We deny the petition.

The form of summons is governed by ARCP Rule 4 (b) which provides as follows:

Form: The summons shall b$ styled in the name of the court and shall be dated and signed by the clerk; be under the seal of the Court; contain the names of the parties; be directed to the defendant; state the name and address of the plaintiff’s attorney, if any; otherwise the address of the plaintiff; and the time within which these rules require the defendant to appear, file a pleading, and defend and shall notify him that in case of his failure to do so, judgment by default will be entered against him for the relief demanded in the complaint.

The summonses are clearly defective and voidable. Tucker v. Johnson, 275 Ark. 61, 628 S.W.2d 281 (1982). However, the trial court in a detailed finding of fact found there was no prejudice to the petitioners and refused to quash the summonses. We agree. The petitioners’ counsel timely appeared specially and properly filed motions in an effort to have the defective summonses quashed and alternatively filed timely answers. The petitioners have not been denied either notice or an opportunity to be heard. They have not been misled by the defective summonses. There is no prejudice to petitioners. The error is harmless. Under these circumstances, the petition should be denied. George v. Jernigan, Judge, 262 Ark. 610, 560 S.W.2d 221 (1978).

Petition denied.


author: Richard B. Adkisson, Chief Justice. Darrell Hickman, Justice, Steele Hays, Justice,

text:
    LAMAR SCHOOL DISTRICT NO. 39 v. Michael Glen KINDER and Jimmy WRIGHT
    82-171
    642 S.W.2d 885
    Supreme Court of Arkansas
    Opinion delivered December 13, 1982

      G. Ross Smith, P.A., for appellant.

      Cearley, Mitchell ér Roachell, for appellees.
   Richard B. Adkisson, Chief Justice.

Appellant, Lamar School District, voted to nonrenew the teaching contracts of two nonprobationary teacher-coaches, appellees Michael Glen Kinder and Jimmy Wright. On appeal to the Johnson County Circuit Court, Kinder was reinstated to his former position with back pay and Wright was awarded $900. The circuit court found the School District “failed to comply with Arkansas law” in nonrenewing appellees’ contracts. We reverse the trial court and affirm the decision of the School District.

Appellees were hired in 1976 as high school football coaches and teachers for the Lamar School District. Although they satisfactorily performed their teaching duties, the school board found them deficient in their performance as coaches. During the five years they coached, the team won 15 games and lost 28: won 4 and lost 14 in their own class AA; won 11 and lost 14 against teams of lower classification.

Prior to the 1979 season the school board formally expressed their dissatisfaction with appellees’ coaching performance at a school board meeting and requested that the principal notify appellees that they had one year to “round out the program.” The principal conveyed the message to appellee Kinder and talked to him about the problem involved. The 1979 season was inconclusive — the team won 4 and lost 4. However, the 1980 season produced a record of 3 wins and 7 losses. Therefore, in February of 1981 appellees were notified by letter that the board was considering nonrenewal. Appellees recieved another letter on March 3 setting out the various reasons why the school board was dissatisfied with their performance. Then, on April 6, at the request of appellees, a public hearing was held on the proposed termination. Two days later the school board voted to nonrenew.

Appellant argues, and we agree, that the school board substantially complied with the procedural safeguards set out by The Teacher Fair Dismissal Act of 1979, Ark. Stat. Ann. §§ 80-1264 — 80-1264.10 (Repl. 1980), and its own personnel policies in nonrenewing appellees’ contracts. The record reflects that the appellees were notified as early as 1979 that the school board was not satisfied with their performance. The fact that the school board was tolerant and did not terminate appellees at that time did not preclude it from nonrenewing at a later date if the coaches’ performance was still unsatisfactory. See School District v. Maury, 53 Ark. 471, 14S.W. 669 (1890). Here, when it became evident in 1981 that there was no consistent improvement in the program, appellees were notified that the board was considering nonrenewal and were given a list of reasons for this action. Appellees were also given a public hearing at which time they and their representatives were allowed to present their arguments against nonrenewal to the school board. Under these circumstances the trial court erred in finding that the school board failed to comply procedurally with Arkansas law. The School District did in fact substantially comply with procedural safeguards in nonrenewing appellees’ contracts.

Appellant also argues that the school board complied with the substantive provisions of The Teacher Fair Dismissal Act as set out in Ark. Stat. Ann. § 80-1264.9 (b) which provides: “Any certified teacher who has been employed continuously by the school district [for] three (3) or more years may be terminated or the board may refuse to renew the contract of such teacher for any cause which is not arbitrary, capricious, or discriminatory,____” An action is “arbitrary” and “capricious” only if it is not supportable on any rational basis. Partlow v. Ark. State Police Commission, 271 Ark. 351, 609 S.W.2d 23 (1980). Here, there were several causes for appellees’ nonrenewal, none of which were arbitrary, capricious, or discriminatory. These causes, as set out in the March 3 letter to appellees, included inability to field a competitive team, inability to recruit more team members, inability to teach fundamentals of blocking and tackling, inability to create good team morale, inability to teach recognition of and reaction to various offensive and defensive football schemes, and losing games by very lopsided scores. In light of these causes, we cannot say that appellees were terminated contrary to law.

Reversed and dismissed.

Hickman, J., concurs.

Dudley and Hays, JJ., dissent.

Darrell Hickman, Justice,

concurring. I concur because the appellants sought employment as coaches and were hired as coaches. They were only incidentally teachers.

Steele Hays, Justice,

Dudley, J., joins in this dissent.


author: Richard B. Adiusson, Chief Justice. John I. Purtle, Justice,

text:
    Floyd WASHINGTON v. STATE of Arkansas
    CR 82-108
    643 S.W.2d 255
    Supreme Court of Arkansas
    Opinion delivered December 13, 1982

      William R. Simpson, Jr., Public Defender and Howard Koopman, Chief Deputy Public Defender, by: Carolyn P. Baker, Deputy Public Defender, for appellant.

      Steve Clark, Atty. Gen., by: Velda P. West, Asst. Atty. Gen., for appellee.
   Richard B. Adiusson, Chief Justice.

This is the second time this case has been before us. The first time the conviction of appellant, Floyd Washington, was reversed and remanded in Washington v. State, 271 Ark. 420, 609 S.W.2d 33 (1980) (hereinafter Washington I). There, we held that the trial court erred in admitting one of appellant’s prior convictions for sentence enhancement purposes. Upon retrial, appellant was again convicted of aggravated robbery and sentenced as a habitual offender to life imprisonment and a $15,000 suspended fine. Appellant now argues that the trial court erred by failing to follow the law established in the first case regarding the use of prior convictions for sentence enhancement purposes. On appeal we affirm.

In Washington I, the crime for which appellant was on trial was committed on June 8, 1979. In that case two prior convictions were introduced for sentence enhancement purposes:

Date of Commission Date of Crime of Crime Conviction

(1) Robbery February 1, 1974 May 13, 1974

(2) Aggravated Robbery June 14, 1979 December 5, 1979

On appeal, we held that the introduction of the December 5, 1979 prior conviction was error, stating that the conviction date of the prior offense (December 5,1979) must precede the date of the commission of the principal offense (June 8, 1979) in order for the prior offense to be admissible for enhancement purposes.

Then, in the subsequent cases of Conley v. State, 272 Ark. 33, 612 S.W.2d 722 (1981) and yet another Floyd Washington case, Washington v. State, 273 Ark. 482, 621 S.W.2d 216 (1981) (hereinafter Washington II), we reversed our ruling in Washington I and held that any prior conviction was admissible for sentence enhancement purposes, stating that the time of conviction in relation to the principal offense was irrelevant.

After our Washington II decision, Washington I came up for retrial. On retrial our rule in Washington I was not followed. Although a different prior conviction was substituted for the erroneous one used in Washington I, it too was one in which the date of conviction did not precede the date of the commission of the principal offense.

Appellant now argues that the law as established in Washington I, although erroneous under Conley and Washington II, should have been followed because of the doctrine of the law of the case. We do not agree.

The doctrine of the law of the case is that the decision of an appellate court establishes the law of the case for the trial upon remand and for the appellate court itself upon subsequent review. Mayo v. Ark. Valley Trust Co., 137 Ark. 331, 209 S.W. 276 (1919). However, it is not an inflexible doctrine; it does not absolutely preclude correction of error. Ferguson v. Green, 266 Ark. 557, 587 S.W.2d 18 (1979). The doctrine of the law of the case is inapplicable where, as here, during the interim between our decision in Washington I and retrial, we correctly set forth the applicable law in Conley and Washington II and this case law was followed on retrial.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I dissent because I believe the law of the case is controlling. Up until the majority opinion in this case we had not created any exceptions to this rule and I cannot see the necessity of doing so at this time. We have, in effect, given our word that this case would be tried upon the theory that the enhancement provisions of the Habitual Criminal Act would not be applicable to the case before us as to convictions where the offense was committed prior to the offense of the principal case. Now this court is going back on its word and saying we are not going to do what we said we would do.

In Washington v. State, 271 Ark. 420, 609 S.W.2d 33 (1980), we decided that the Habitual Criminal Act was based upon the theory that a persistent offender warranted an increase in the punishment for the offense because he had not been deterred by previous convictions and punishment. We flipflopped in the case of Conley v. State, 272 Ark. 33, 612 S.W.2d 722 (1981). In Conley, we decided that we should allow any prior convictions of an accused to be used when he was subsequently sentenced. In other words, we switched from the idea that the Habitual Criminal Act was a deterrent to the idea that it was punitive.

I cannot understand the reasoning in the majority opinion citing the case of Ferguson v. Green, 266 Ark. 556, 587 S.W.2d 18 (1979). Ferguson was decided on the question of the law of the case. There we stated:

Whatever this court decided in the exercise of its appellate jurisdiction must be considered as finally settled. (Cites omitted) This court’s judgment or decree became the law of the case and the trial court could not have varied it or j udicially examined it for any purpose other than carrying it into execution. (Cite omitted) No matter how irregular the decision of a superior court may be or upon what misapprehension of the facts it may have been made, it is the law of the case to the inferior court, and must be obeyed.

The plain language in Ferguson supports the position that we should not abandon the established doctrine of “law of the case” in Arkansas.

There is no question but that an offense used for enhancement at appellant’s first trial fits the same category as the enhancement sentence used at the second trial. Therefore, it is clearly a violation of our holding in this case when it was before us in Washington I. The appellant was convicted in a case of Washington v. State, 273 Ark. 483, 621 S.W.2d 216 (1981), in an unrelated case. In the last-mentioned case we applied the rule that all prior convictions could be counted upon a subsequent conviction. Therefore, Washington has had it both ways. In Washington II, we made it quite clear when we stated:

We decided that Arkansas’s habitual criminal statute was not designed to act as a deterrent, as we had supposed in Washington, but is simply a punitive statute, which provides in clear language that in an appropriate case, a prior conviction, regardless of the date of the crime, may be used to increase punishment.

I am totally at a loss to understand why this court would go out of the way to overrule our prior decisions and create another loathsome exception to a rule of law.