text:
    Jefferson v. Nero.
    5-726
    280 S. W. 2d 884
    Opinion delivered July 4, 1955.

      J. H. Carmichael and Josh W. McHughes, for appellant.

      W. E. Phipps, for appellee.
   Minor W. Millwee, Justice.

The parties to this suit are residents of the Dixie Addition to North Little Dock, Arkansas, where the appellant, Sam Jefferson, operated a café and beer tavern. When appellee, Prank Nero, entered appellant’s place of business on December 13, 1952, the two men engaged in an altercation in which appellant shot and critically injured appellee. Trial of an action for damages brought by appellee resulted in a verdict and judgment in his favor for $8,000.

There is a sharp dispute in the testimony concerning the shooting and the incidents leading up to it. According to the testimony of appellee, the parties were good friends and there had been no prior trouble between them when he went to appellant’s place of business about 3 P. M. on the day in question for the purpose of purchasing a package of cigarettes. The business consisted of two rooms, 14 ft. x 20 ft. each, facing East on “D” Street with the café located in the South room and the beer parlor in the North room. Appellee entered the café where appellant was sitting in front of the counter and the two exchanged greetings. Appellee then handed appellant a one-dollar bill to change so that he could get the cigarettes from a vending machine. Appellant went out the back door and returned shortly through the front door with a shotgun. When appellee started out the front door appellant drew the gun and told him to get back. When appellee backed up a few steps appellant made two or three motions with the gun which discharged and shot appellee at close range on the side of the face, seriously injuring him.

Appellee denied appellant’s testimony to the effect that the two had quarreled on the morning of the shooting and at other times previously because of appellee’s misconduct; and that appellee had been warned to stay away from appellant’s place of business. According to appellant the shooting occurred when appellee insisted on playing a coin operated music machine, or nickelodeon, after appellant had told him not to do so. Appellant testified that appellee then advanced toward him with his hand in his pocket; that he was nervous and did not intend to shoot or hurt appellee but only to stop him; and that it was just an accident that he hit him.

I. The Statute of Limitations. The shooting occurred December 13, 1952, and this suit was filed March 19, 1954. Appellant pleaded, and now contends, that the action was one for assault and battery which must be brought within one year under Ark. Stats., § 37-201. The trial court agreed with appellee’s contention that it constituted an action for negligence founded on an implied liability growing out of the proprietor-invitee relationship which may be brought within 3 years under Ark. Stats., § 37-206.

The amended and substituted complaint contained allegations as follows: “The plaintiff further states that when the defendant so shamefully thus shot and injured Mm, lie was a business visitor, an invitee, in defendant’s café and beer tavern; that said business was open for business at the time; that plaintiff had entered for the sole purpose of buying a package of cigarettes; that at the time he was exercising due care as such business visitor and conducting himself as is customary for good customers; that the defendant owed him a duty to exercise ordinary care towards him, and not unlawfully, or otherwise, to injure him; that the defendant defaulted in such duties, and while in the course of his duties as café and beer tavern operator, did with willful and unlawful negligence injure the plaintiff as aforesaid; and as a direct and proximate cause thereof the plaintiff was rendered totally and permanently disabled . . .”

“That while the relationship of proprietor-invitee existed between the parties hereto, the defendant proprietor attempted to eject plaintiff invitee from said beer tavern café, and in doing so used more force than was necessary, and thereby proximately injured the plaintiff.”

Appellant relies strongly on the case of McAlister v. Gunter, 164 Ark. 611, 262 S. W. 636, in which the court held that an action for shooting and wounding the plaintiff was barred by the one-year statute. The effect of our holding in that case was that an assault and battery was the only cause of action relied upon by the plaintiff, and that no special relationship, like that of proprietor-invitee asserted here, was alleged or proved. We think the principle followed in the earlier case of St. Louis, I. M. and S. Ry. Co. v. Mynott, 83 Ark. 6, 102 S. W. 380, is applicable and controlling here. There the plaintiff-passenger was allegedly assaulted, beaten and forcibly ejected from defendant’s train by one of its trainmen. In rejecting the defendant’s plea that the action was for assault and battery, hence barred by the one-year statute, the court held that the carrier-passenger relationship gave rise to an implied liability of the railway company for the wrongful acts of its servants in forcibly expelling plaintiff from the train. See, also, St. Louis, I. M. and S. Ry. Co. v. Robertson, 103 Ark. 356, 146 S. W. 482, where the one-year statute was held inapplicable even though the relation of passenger and carrier might not have existed, provided the trainman used more force than necessary in expelling plaintiff as a trespasser.

Another well settled rule is stated in 53 C. J. S., Limitations of Actions, § 107, as follows: “If there is doubt as to which of two or more statutes of limitation applies to a particular action or proceeding, and it is necessary to resolve the doubt, it will generally be resolved in favor of the application of the statute containing the longest limitation. ’ ’ See, also, 34 Am. Jur., Limitation of Actions, § 50.

In determining the applicable statute of limitations in the case at bar, we think the trial court correctly construed the instant proceeding as an action growing out of the implied liability of appellant as a proprietor in either wrongfully and negligently injuring appellee, an invitee, or in using more force than was necessary in attempting to eject him as a trespasser.

II. The Instructions. Appellee’s Requested Instruction No. 1 given by the court reads: “This is a case in which the plaintiff alleges a proprietor-invitee relationship between defendant and him and that under such relationship the defendant owed him a duty under an implied contract to be careful toward him and not to injure him negligently. You are instructed that when an owner sets up shop and opens his doors for the business of selling wares, services, or entertainment he is then a proprietor and such act is his general invitation for the public to enter, look, and buy, and any person who enters with an intention of probable buying is an invitee. So, in this case, if you find from the preponderance of the evidence, that on December 13, 1952, at or about 3:10 P. M. Sam Jefferson, the defendant, had his café-beer tavern open for business, and at that time the plaintiff, Prank Nero, entered said shop for the purpose of making a purchase, then said defendant was a proprietor and said plaintiff was an invitee, and at that time the relationship of proprietor-invitee existed between the defendant and the plaintiff, and it is the law that the defendant owed the plaintiff a duty to exercise ordinary care towards him under such circumstances and conditions. ’ ’

Appellant objected to the instruction generally, and specifically because the word “negligently” was not defined. It is now argued that the instruction is inherently erroneous because it assumed and told the jury that the relationship of proprietor-invitee existed between the parties at the time of the shooting. We think it is clear that the instruction merely set forth appellee’s allegation in regard to the relationship and the state of facts under which the jury might find that it existed. Other instructions given by the court make this very clear. It is also well settled that the failure to instruct on a question is not ground for reversal, where no request is made therefor. See cases cited in West’s Ark. Digest, Appeal and Error, § 216. Instructions defining such terms as “negligence” and “ordinary care” are usually given separately. If appellant felt the word “negligently” should have been more specifically defined it was incumbent upon him to request such an instruction before he could complain on appeal. The court defined ‘ ‘ ordinary care” in a separate instruction and appellant’s liability was predicated upon his alleged failure to use such care toward appellee. When the instruction in question is considered along with other instructions given, as the jury were told to do, the meaning of “negligence,” or the failure to use “ordinary care,” is made manifest.

Appellant also contends the court erred in givingappellee’s Requested Instruction No. 2, which, reads: “You are instructed that a proprietor owes an invitee on his premises a duty to exercise ordinary care not to injure him negligently. Such duty arises from an implied contract on the part of the proprietor when he opens his shop and thus invites customers to enter that the shop is safe to enter and that he will exercise ordinary care for such customer-invitee’s safety, and that he will not negligently injure him. So, in this case, if you find from a preponderance of the evidence that the plaintiff, while exercising dne care entered and was an invitee upon the premises of the defendant and the defendant in the capacity of proprietor negligently injured the plaintiff as charged, then and under such findings you should bring in a verdict for the plaintiff and award him a judgment commensurate with his proved damages.”

Specific objections to this instruction were that ‘ ‘ negligence ’ ’ and ‘ ‘ ordinary care ’ ’ were not defined and that the instruction failed to state that an invitee must enter a place of business “in a lawful manner.” We think this instruction correctly submitted appellee’s theory of the case to the jury. Under the instruction the jury were required to find not only that appellee was an invitee but that he entered appellant’s place of business “while exercising due care.” The defense theories of appellant to the effect that appellee was a trespasser, that appellant used no more force than necessary to eject him, or to protect appellant from bodily injury, were submitted under instructions requested by both parties which clearly and correctly defined such issues to the jury.

In connection with this instruction appellant again argues that appellee sought recovery for assault and battery only, which he asserts must be done intentionally, and not negligently; and that there is no proof of negligence in the case at bar. As previously indicated, appellee’s complaint clearly stated a cause of action on an implied liability growing out of the proprietor-invitee relationship. Even if it be conceded that assault and battery were also involved in the proceeding, the trial court correctly applied the longer rather than the shorter period of limitations. The jury were also warranted in finding that appellant acted negligently, and not intentionally, in the shooting under his own version of the incident. Besides, if appellant thought the jury were not sufficiently advised on the issue of whether the shooting was intentional, he should have requested a proper instruction on the matter and cannot complain on this appeal in the absence of such request. Western Coal and Mining Co. v. Jones, 75 Ark. 76, 87 S. W. 440.

On the whole case we find no prejudicial error, and the judgment is affirmed.


source: Caselaw Access Project

author: George Rose Smith, J.

license: Public Domain

text:
    Brand v. Rorke.
    5-720
    280 S. W. 2d 906
    Opinion delivered July 4, 1955.

      Wiley W. Bean, for appellant.

      Rose, Holland & Holland, for appellee.
   George Rose Smith, J.

This is an action brought by the appellant to recover for personal injuries sustained while she was riding as a passenger in the appellee’s car. At the conclusion of the plaintiff’s proof the trial court directed a verdict for the defendant. The question is whether the plaintiff made a case for the jury.

During the 1953-1954 school year Miss Brand was living in Clarksville but was employed as a school teacher at Oark, in the northern part of the county. Miss Brand, the defendant Rorke, and a third teacher made an arrangement by which the two men alternated in driving their cars from Clarksville to Oark. It was decided that the operating expense of a car was $42 a month; so Miss Brand contributed her share by making a monthly payment of $7 to each of the two car. owners.

The complaint alleges that Rorke was negligent in driving an automobile without brakes and with a defective lock on the right front door. At the trial the plaintiff testified that on the day of the accident, as Rorke was driving down a mountain on the highway, the brakes failed. The car gathered speed until Rorke stopped it by swerving to his left, but Miss Brand was thrown through the front door and injured. She was unable to give the cause for the failing of the brakes.

It is insisted by the appellee that this proof falls short of establishing negligence, since the mechanical defect might have arisen suddenly and without fault on Rorke’s part. Even so it was not necessary for the plaintiff to anticipate and disprove this possible explanation. By statute every motor vehicle must be equipped with adequate brakes. Ark. Stats. 1947, § 75-724. It has often been held that proof of the violation of such a safety measure is evidence of negligence. Union Securities Co. v. Taylor, 185 Ark. 737, 48 S. W. 2d 1100; Kendrick v. Rankin, 219 Ark. 736, 244 S. W. 2d 495. The appellant’s testimony constituted substantial evidence to the effect that the statute had been violated; it was for the jury to say whether the defendant was guilty of negligence.

It is also contended that the plaintiff must be held as a matter of law to have been a guest, precluding her from recovery in the absence of willful and wanton misconduct on Rorke’s part. Ark. Stats., § 75-913. Here too the issue was for the jury. It is certainly true that, when a trip is undertaken for social and recreational purposes, a passenger, may be found to be a guest even though he buys a tankful of gasoline for his host or contributes in some other way to the expense of the journey. Ordinarily, however, the issue is one of fact. Corruthers v. Mason, 224 Ark. 929, 277 S. W. 2d 60. Especially is this true with respect to a car pool that is essentially a business arrangement between fellow employees rather than an instance of pure hospitality. Bond v. Sharp, 325 Mich. 460, 39 N. W. 2d 37; Dennis v. Wood, 357 Mo. 886, 211 S. W. 2d 470; Rosa v. Briggs, 200 Ore. 450, 266 P. 2d 427. In the case at bar it cannot be said that the proof shows without dispute that the guest statute is applicable.

Reversed.


text:
    Green v. Garrett.
    5-727
    280 S. W. 2d 905
    Opinion delivered July 4, 1955.

      McDaniel, Croiv & Driver, for appellant.

      Ben M. McCray, for appellee.
   George Rose Smith, J.

This is a suit by the appellees to quiet their title to a strip of land lying along the boundary line between their property and that of the appellant. The chancellor granted the relief sought. It is now contended by the appellant that since the disputed strip lies on the appellant’s side of an existing fence the plaintiffs were not in possession when the suit was filed and were therefore not entitled to have their title quieted in equity.

The objection now urged was not made below until after the trial, being mentioned for the first time in the appellant’s designation of the record for appeal. The plaintiffs ’ lack of possession does not involve a complete absence of judicial power over the subject matter, as would be true if a chancery court attempted to try a criminal case or to probate a will. Instead, the present objection goes merely to the adequacy of the remedy at law and is waived if not timelily interposed. Love v. Bryson, 57 Ark. 589, 22 S. W. 341; Reynolds v. Balding, 183 Ark. 397, 36 S. W. 2d 402. Here the objection is clearly too late.

Affirmed.


author: Ward, J.

text:
    Arkansas State Highway Commission v. Croom.
    5-730
    280 S. W. 2d 887
    Opinion delivered July 4, 1955.

      Richard M. Hart, for appellant.

      Hardin, Barton, Hardin $ Garner, for appellee.
   Ward, J.

This ease arose out of the condemnation of certain lands situated in Sebastian County, Fort Smith District, Arkansas. On July 16, 1952, the County Court of Sebastian County, Fort Smith District, Arkansas, at the request of the Arkansas State Highway Commission, proceeding under Ark. Stats., § 76-510, entered its order condemning lands belonging to appellee, B. L. Croom, and other property owners, in connection with the widening and resurfacing of Towson Avenue located principally within the City limits of Fort Smith, Arkansas. The condemnation order specified that the City of Fort Smith and Sebastian County [Fort Smith District] were to share the cost of right of way acquisition on an equal basis, and that the Highway Commission was to remove and clear obstructions. The order further stated that claims for damages must be presented within one year.

Pursuant to said order appellant, the Arkansas State Highway Commission, entered upon the lands of appellee for the purpose of clearing the right of way and reconstructing the said street. However, appellee objected to such entry and thereupon appellant, on May 13, 1953, made application in the Chancery Court for an order enjoining appellee from interfering with and molesting its operations. The Chancery Court restrained appellee but required appellant to make a deposit in the registry of the court to guarantee the payment of any damages that might be adjudged in favor of appellee if same were not paid.

The pertinent part of the Court’s order reads: “. . . the defendant [appellee] is entitled to have deposited in the registry of this Court the sum of $6,500 to be held therein as a cash bond to guarantee payment of defendant’s damages, if any, occasioned by the taking of his said lands by condemnation order of Sebastian County Court, Fort Smith District, as is set forth in the complaint filed herein, and by construction of the highway, if such damages, if any, are not paid after being-ascertained in the manner provided by law by Sebastian County, Arkansas, Fort Smith District and/or the City of Fort Smith, Arkansas, in accordance with said condemnation order . . . ”

Subsequent to the above proceedings appellee filed his claim for damages in the County Court, but not being satisfied with the allowance, he appealed to the Sebastian Circuit Court where a judgment in the sum of $6,500 was secured against the County. Appellant was not a party to that proceeding, and no appeal has been taken from the judgment.

Following the judgment in circuit court, appellee filed a motion in the Sebastian Chancery Court on January 11, 1955, praying that the deposit of $6,500 placed in the registry of the court by appellant be paid to him in satisfaction of the judgment theretofore rendered against Sebastian County. Appellant resisted the above motion and, after a hearing on January 14, 1955, the Chancery Court sustained appellee’s motion and directed appellant to pay over to appellee the amount of its deposit. From the above order of the Chancery Court appellant prosecutes this appeal.

The trial court erred in sustaining appellee’s motion and in directing that the sum of $6,500 be summarily paid to appellee. It is clear that appellant is not hable for damages caused. appellee as a result of the County Court condemnation order since appellant was not a party to that procedure and was not otherwise bound thereby, as we have heretofore held in the cases of Arkansas State Highway Commission v. McNeil, 222 Ark. 643, 262 S. W. 2d 129, and State of Arkansas Highway Commission v. Palmer, 222 Ark. 603, 261 S. W. 2d 772. This court in those cases discussed the methods of obtaining rights of way as set forth in Ark. Stats., § 76-510 and § 76-511. It was stated in the latter case that if the procedure was instituted at the request of the Highway Commission [as it was in the case under consideration] “the county became liable for all damages for such taking.” It was there also further explained that if the Highway Commission had instituted proceedings under § 76-511 [as it did not do here] “it would have been obligated to pay all damages, but could have charged back to the County fifty per cent of the cost.”

It follows therefore that if any liability for damages to appellee exists now or may exist in the future it is because of the deposit it made in chancery court as a prerequisite to obtaining the writ of injunction against appellee. It will be noted that the injunction order specified in effect that there would be no obligation on appellant to pay damages to appellee unless such damages, if any, were not paid by Sebastian County. Therefore it is obvious that the obligation placed on appellant [to pay damages to appellee] was in the nature of the obligation of a guarantor and not a primary debtor.

At the time the chancellor made the order from which comes this appeal no showing was made that appellee had legally and properly presented for collection his judgment against the County, no showing that the County had legally refused to pay him, and no adequate showing that the County was financially unable to pay. The only attempt on the part of appellee to show the County was unable to pay his judgment was testimony to the following effect: The Prosecuting Attorney said the County Judge said no appropriation had been made. The County Judge said that none had been made, that he had asked for none, that appellee had presented no claim, and that he thought the Arkansas Highway Commission’s bond would take care of appellee’s judgment. Appellee admitted that no formal or written claim had, to his knowledge, been presented to the County. In dealing with a similar situation, in The State Life Insurance Company of Indianapolis, Indiana v. Arkansas State Highway Commission, 202 Ark. 12, 148 S. W. 2d 671, this court said:

“Appellant had and still has a complete and adequate remedy at law. It is not alleged or attempted to be proven that Benton County is insolvent and cannot pay any damage suffered by appellant, and the burden was on it to do so. There is no presumption of insolvency as to the state or any of its political subdivisions. In fact the presumption is to the contrary. ’ ’

In accordance with the many decisions of this court it is well established of course that a person’s land cannot be taken under condemnation proceedings without just compensation, but we can think of no possible way by which appellee in this instance will not eventually receive compensation for his land, if he pursues the legal remedies available to him to collect the judgment he has against the County. If however it later develops that appellee cannot obtain compensation from the County because of its financial inability to pay, or for any other legal reason, the deposit which appellant has made will then be available in the Chancery Court for that purpose.

The views expressed above force the conclusion that the trial court was premature in ordering appellant’s deposit in that court paid to appellee.

It was the opinion of the trial court that its action was justified under the holding in the McNeil case, supra. The trial court quoted and laid stress on a certain portion of the opinion where it was said ‘ ‘ perhaps, as counsel suggest, the State will ultimately bear a substantial part of the liability as a result of having made the $15,000 deposit as a condition to entering upon the land.” We can see nothing in the McNeil case to sustain the court in its conclusion. It was plainly stated in the cited case that “the State is not lawfully subject to liability in this case.” It was further stated “the Palmer case and its predecessors have established the rule that in a proceeding such as this one, brought under Ark. Stats. 1947, § 76-510, the State is immune from liability; the sole responsibility rests upon the County, as a result of the County Court’s action in granting the request that a right of way be provided at County expense.” It is true that in the McNeil case the court said that perhaps the State will ultimately be liable on the deposit made in chancery court. The statement was correct in that case and it would be, as explained above, correct to make the same statement in connection with the deposit in this case.

Appellee makes this statement: “This court’s decision in Arkansas State Highway Commission v. Partain, 192 Ark. [127] at page 131, [90 S. W. 2d 968], we think, is clearly decisive of all the issues in this case,” and quotes extensively from the opinion. Then special reliance is placed on this phrase [from the quote]: “This deposit is in effect the payment in advance which the Constitution requires as a condition upon which the property must be taken.” A careful reading of the Partain opinion reveals facts and issues so different from those obtaining here that it obviously does not support appellee’s contention. In the cited case there had not been any condemnation proceeding, the property owner had recovered no judgment for damages, and no deposit of cash or bond had been made in court for the property owner’s protection over which the court had control. The language [quoted above] which appellee considers significant in this case is fully explained by the court’s language immediately preceding the quotation. The explanatory language we refer to was a general statement of law made by the court as follows:

“There is authority in the law whereby the court. in which condemnation is prayed, may require a deposit in court of a sum of money sufficient to pay any and all damages which may reasonably be assessed; and the deposit must he in the registry of the court where the damages will he assessed. . . .” [Emphasis supplied.]

In using the above language and in using the language relied on by appellee, the court obviously ivas not talking about the kind of a deposit made in the case before us. Here the deposit of $6,500 was not made in the court which condemned appellee’s property and it was not made by the condemner.

Accordingly the decree of the trial court is reversed.


author: Robinson, J.

text:
    Risser v. City of Little Rock.
    5-724
    281 S. W. 2d 949
    Opinion delivered July 4, 1955.
    [Rehearing denied October 3, 1955.]

      John R. Thompson, Bernal Beamster, Joseph C. Kemp and Cooper Jacoioay, for appellant.

      O. D. Longstreth, Jr., Dave E. Witt and Mehaffy, Smith £ Williams, for appellee.
   Robinson, J.

This is an effort by some of the residents of the Fourche Dam community, which is east of Little Rock in Pulaski County, to prevent the City of Little Rock from relocating a small portion of East 10th Street and East 26th Street in that city.

East 10th Street is on the north side of the Little Rock Municipal Airport and East 26th Street is on the south side. To facilitate the operation of modern aircraft, it is necessary for the city to install additional equipment at the ends of the northeast-southwest runway at the airport. In order to do this, the city seeks to abandon a small portion of East 10th Street and establish a new route one block north on 9th Street. This will require traffic to make two sharp turns in traveling from 10th to 9th Street. By actual timing, it takes 35 seconds longer to travel the new route than it does the old one. On the south side of the airport, the city has relocated East 26th Street for a distance of a little over half a mile. This was done by building a crescent shaped loop which makes the new route approximately 600 feet longer than the old route. The old route is in such a condition that it cannot be traveled, hence the comparative time it takes to travel the two routes is not shown, but it requires a total of one minute and 15 seconds to drive the entire new route at a usual rate of speed.

Appellants filed suit to enjoin the city from abandoning the old routes in favor of the new ones. The chancellor denied the injunction and the residents of the Fourche Dam community have appealed. Appellants contend that ‘ ‘ the City did not comply with the statutory requirement of securing approval from the P.ulaski County Planning Commission; the City had no control or jurisdiction to close the roads in question; the City has failed to provide comparable roads that are equally safe and covenient; the fact that the plaintiffs’ property does not abut on the portion of the road closed does not prevent the plaintiffs from suffering damages for which they are entitled to reimbursement; the court should have sustained the plaintiffs’ plea of res adjudicata.” Appellants also contend that the city is precluded from closing the roads by a contract made with the residents of the area. There are three points that merit discussion : first, is the city bound by a contract; second, is the cause res judicata-, and third, have appellants suffered special and peculiar damages.

As to the question of whether the city is bound by an agreement heretofore made with the residents of the Fourche Dam area, appellants introduced evidence to the effect that, in 1934, the city undertook to close East 17th Street and the county road known as Fourche Dam Pike; that the residents of the Fourche Dam community objected, resulting in an agreement between the city officials, the county judge and the residents of that area, that the residents would not oppose the closing of East 17th Street, or seek damages for the closing of that street, if the city and county would construct a paved road on the north side of the airport; and that, in 1940, the agreement was modified whereby the city was to improve East 10th Street, and improve and maintain East 26th Street with a right of way of 160 feet. Appellants contend that this was a valid and binding contract between the Fourche Dam residents and the city, and that the city is not now at liberty to change the location of East 10th and East 26th Streets, which are the roads furnishing access to the Fourche Dam community.

Any attempt on the part of the city to enter into a contract relating to the permanent establishment or abandonment of its public streets would be tMra vires. In establishing, maintaining or abandoning its streets, the city acts in a governmental capacity and no city administration has the authority to bind a future administration in such matters. Cities have the authority to control, supervise and regulate all streets within their corporate limits. Ark. Stats., §§ 19-2313, 19-2304. “A municipality cannot bind itself by a perpetual contract, or by one which lasts an unreasonable length of time. Thus, a municipal corporation cannot obligate itself to keep a particular street open forever.” 38 Am. Jur. 174. It is also said in 25 Am. Jur. 553: “It is established that the governmental power to control and regulate the use of highways in the public interest cannot be surrendered, or impaired by contract. Particularly as to municipalities, control over streets is given to them for the benefit of the public. It is in the nature of a trust held by the corporation, from which arises a continuing duty on the part of such corporation to exercise legislative control over their streets at all times and places when demanded by the public good. They have no power, by contract, ordinance, or bylaw, to cede away, limit, or impair their legislative or governmental powers, or to disable themselves from performing their public duties in this regard, at least without the explicit consent of the legislature, or to delegate the exercise of such powers and the performance of such duties to others, so as to relieve themselves of responsibility in this respect. ’ ’ In 37 Am. Jur. 735, 736, it is said: “It is declared to be against public policy to permit a municipal corporation to part with any of its legislative power. In the absence of a clear grant of power from the legislature, the municipal authorities can do nothing which amounts in effect to the alienation of a substantial right of the public. It cannot obligate itself not to exercise such powers, and a contract in which it purports to do so, even upon valuable consideration, is void. Thus, a municipal corporation cannot, by contract or otherwise, divest itself of its general police power, or of the power of eminent domain which has been delegated to it by the legislature, or of the power of taxation.” The law is clear that a city cannot contract away perpetually its rights, obligations and duties in connection with the public streets.

Next we reach the question of res judicata. Ordinance 9004 was adopted by the Little Rock City Council on September 22,1952. Under the provisions of the ordinance, the portions of East 10th and East 26th streets involved herein were abandoned. The ordinance set out that the city council had ascertained that portions of such streets “have not been actually used by the public generally for a period of at least five years subsequent to the filing of the plat.” It is perfectly obvious that the ordinance was adopted on authority of Ark. Stats., § 19-3825, which provides: “In all cases where the owner of property within a city or town shall have dedicated, or may hereafter dedicate, a portion of such property to the public use as streets or alleys by platting such property and causing such plat to be filed for record, as provided by law, and any street or alley, or section thereof, shown on the plat so filed shall not have been actually used by the public as a street or alley for a period of five years, the City or Town Council shall have power to vacate and abandon the street or alley, or any portion thereof, by proceeding in the manner hereinafter set forth.” After the adoption of Ordinance 9004, appellants in the case at bar filed a suit to enjoin the city from enforcing the ordinance by closing a portion of East 10th and East 26th streets. The complaint alleged, inter alia, that ‘ ‘ The defendants are now attempting to close, block, obstruct and barricade a portion of said 10th Street and have already begun to tear up the roadway and to interfere with travel along said road. ’ ’ An intervention was filed alleging that ‘ ‘ The defendants are purporting to act under the authority of Ordinance No. 9004 of the City. Said ordinance is void and a nullity. Said ordinance was not enacted in the manner required by law and contains a recitation and finding that the road or street in question has not been used for a period of at least five years subsequent to the filing of the plat. In truth and in fact, said road has been constantly and continuously used by the public, including the plaintiff and all others similarly situated, and said use has continued without abatement or interruption at the time it was opened until and through the present time. Because of the invalidity of the’ ordinance, the portion of East 10th Street that purports to be affected by the ordinance has not been vacated and the defendants have no right or authority to attempt to block, barricade, close and obstruct any portion of East 10th Street and the efforts of the defendants to close, barricade, block and obstruct East 10th Street are without authority of law and are of great damage to this plaintiff and to all others similarly situated.” Both a demurrer and an answer filed by the city asserted the validity of Ordinance 9004 as a complete defense, and did not attempt to justify the closing of the streets on any other ground. In fact, there was no other ordinance authorizing the closing of the streets. On a final hearing, there was a decree enjoining the defendants from closing portions of the streets involved. (The pleadings must have been considered amended to apply also to East 26th Street.)

If Ordinance 9004 was void because it was based on the false premise that the streets in question had not been used for five years, then the city was without authority to close the streets and the injunction was granted properly by the trial court. It appears conclusive that the streets had been regularly used within the five year period, and therefore, that Ordinance 9004 was not passed in accordance with Ark. Stats., § 19-3825, authorizing the closing of streets where they have not been used for five years. There was no appeal from the Chancellor’s decree enjoining the city from closing a portion of the streets. The date of the decree was June 26, 1953.

A short time later, on August 10, 1953, the City Council, acting on authority of Ark. Stats., § 19-2304, which gives the city the power to vacate portions of public streets, adopted Ordinance 9290. It provides for the closing of the same portions of East 10th and East 26th streets as did the void Ordinance 9004. Seven days after the adoption of Ordinance 9290, the case at bar was filed attacking its validity. A copy of the ordinance is made a part of the complaint. (It will be recalled that this ordinance had not been passed by the City Council at the time of the trial involving the validity of Ordinance 9004.) The prayer of the complaint in the present case asks that Ordinance 9290 be declared null and void. An intervention filed by one of the appellants is to the same effect, and asks that the city be enjoined from closing the streets. There was no effort to enforce the order made in the first suit enjoining the city from closing the streets. The only issue in the first suit was the validity of Ordinance 9004. The city asserted no authority for closing the streets except the authority bestowed by that ordinance. True, the plaintiffs attacking the validity of the ordinance alleged damages, but such allegations were necessary to give them a standing in court. Without an allegation. of damages, the complaint and intervention would have been demurrable. If the cause is res judicata, as appellants claim, then the filing of the present suit was wholly unnecessary. The injunction in the first suit would have been sufficient to prevent the closing of the streets. ¡ .

The principle of res judicata is so well known that it need not he restated here. One of the necessary elements of the doctrine is that the issues must be the same. In the first case, the only real issue was the validity of Ordinance 9004. The right of the city to close a portion of the streets, had this ordinance been found valid, was never considered. The city’s right to close a portion of the streets under the authority of Ordinance 9290 was not involved. This ordinance was not in effect when the first case was tried. At the time of the first suit, the city could close portions of the streets only under the authority of Ordinance 9004, and the only issue raised in those pleadings was the validity of that ordinance. Hence, the issue in the first case is not the same as the issue in the case at bar, and the cause is therefore not res judicata.

Next we come to the question of whether the appellants suffered special and peculiar damages. None of the plaintiffs own property abutting the portions of the streets being closed, but even if it is conceded that appellants have been damaged by the relocation of the roads, they have suffered no peculiar or special damages which could give rise to a cause of action. Travelers on 10th Street, as relocated, must turn two corners and travel a little farther, which requires less than a minute in additional time. This slight inconvenience, however, is not peculiar to appellants alone. This street is an outlet from the city to one of the most thickly populated sections of the county. Every person that travels the street suffers the same inconvenience as the appellants.

The principal contention of the appellants in regard to East 26th Street is that their property is especially suitable for industrial development and that the change in the street materially lessens the value of the property from that standpoint. They say that 26th Street, before being relocated, had a 160 foot right of way. (The paved section was formerly 18 feet wide, while the new pavement is 22 feet wide.) Appellants contend that the 160 foot right of way would be more attractive to industries than the new 40 foot right of way. The city owns all of the property on both sides of the old right of way as well as that on both sides of the new right of way; No donbt the city is anxious to assist in the industrial development of the county and it is not unreasonable to believe that the city would cooperate to the fullest extent in providing the necessary facilities for industries. But, be that as it may, the fact remains that appellants have access to the city and that they have suffered no peculiar and special damages. Appellants own a few hundred acres of land, but the streets in question lead to an area consist'ing of thousands of acres of level, alluvial soil that is the same as that owned by appellants.

On the question of damages, the case of Little Rock and Hot Springs Western Railroad Company v. Newman, 73 Ark. 1, 83 S. W. 653, is in point. There the court said:

‘ ‘ The rule of law governing cases of this kind is that no private action on account of an act obstructing a public and common right will lie for damages of the same kind as those sustained by the general public, even though the inconvenience and injury to the plaintiff be greater in degree than to other members of the public; but an action will lie for peculiar or special damage of a kind different from that suffered by the general public, even though such damage be small, or though it be not confined to plaintiff, but be suffered by many others.”

The court further said;

“If a railroad is constructed across the highway leading from the home of one who lives in the country to the town or city to which his business requires that he must often go, it is very natural that he should feel that the danger of delay or accident to which he may thus be at times subjected renders his property less desirable as a home, while as a matter of fact its market value may be actually increased by the construction of the railroad. If he suffers an injury in such a case, it is general, and not special. If one owning a home in the country could recover damages in such a case, the man who owns a home in the city and has often to visit the country might on the same principle claim damages to his home in the city, and so there would be no end to such claims, for the injury is common to the whole public, whether in the town or country.”

In Wellbourn v. Davies, 40 Ark. 83, the court said:

“The inconvenience to the complainant in visiting his patients, however often he may be called to do so, is not different from that which every citizen suffers, whose business or pleasure may call him to travel the road. It is of the same character, only perhaps different in degree, from that which others suffer, who have other business, and live further away. This will not sustain his right of action. . . . The new roads were not as convenient to complainant as the old, and gradually the enclosures of his neighbors came to annoy and embarrassed him very seriously. Doubtless they did diminish the market value of his property. Nevertheless, these were the accidents to him, of a change in the population, business and necessities of the community at large. He made several applications to the County Court to reopen the old roads, and they were all refused. Evidently the public necessity did not require them. ’ ’

In Stoutemeyer v. Sharp, 89 Ark. 175, 116 S. W. 189, the court said:

“In the present case the obstruction did not abut Sharp’s premises. It was north of his place, and was between the tracts of land of Stoutemeyer and Parker. Sharp says the obstruction greatly inconvenienced him in taking his stock to Spring River for water and preventing egress and ingress to that part of the country. This was an injury differing only in degree, and not in kind, from that suffered by Parker, Hutchinson and the rest of the community. Assuming the road obstructed to be a public highway, we do not think that Sharp has brought himself within the rule above announced. ’ ’

Also, in Tuggle v. Tribble, 177 Ark. 296, 6 S. W. 2d 312, the court said:

“In this connection it may be said that there can be no change of an existing highway that does not cause some private inconvenience, and, in that sense, injury to the abutting property owners, who have adapted themselves to the existing order of things and have purchased property on a highway which they believed would never be changed. There is no question presented in the record that appellants have been entirely cut off from any public highway by the proposed change in the public road in question. ’ ’

In Greer v. City of Texarkana, 201 Ark. 1041, 147 S. W. 2d 1004, it is said:

“Appellant insists that the effect of the changing of highway No. 71 is to destroy the value of his property, which constitutes the taking of his property without compensation. But the case of Tuggle v. Tribble, 177 Ark. 296, 6 S. W. 2d 312, defines the attitude of this court on such questions. In that case the county court changed the location of a county road near the city of Hot Springs. Tuggle owned land on the old highway, and he appealed from the order of the county court making the change, and he appealed to this court from the judgment of the circuit court affirming the judgment of the county court. It was held on the appeal that the county court had the right to change the road, although the change subjected Tuggle to some inconvenience, and depreciated the value of his property. . . . Appellant has not been deprived of his means of ingress and egress, as Dudley avenue, on which his property is located, remains unaffected by the proposed change. Unaffected also is Jackson street, running into Dudley avenue at appellant’s corner. Appellant’s damage, as found by the court below, results from the diversion of the traffic; hut this was not a recoverable element of damage. ’ ’

Our conclusion is that the decree of the Chancellor is correct and is therefore affirmed.

The Chief Justice and Mr. Justice Millwee not participating.

Mr. Justice McFaddin dissents.


author: Ned A. Stewart, Special Chief Justice.

text:
    McArthur v. Smallwood.
    5-764
    281 S. W. 2d 428
    Opinion delivered July 27, 1955.

      Williams é Gardner, for appellant.

      Tom Gentry, Attorney General, and Mehaffy, Smith & Williams, for appellee.
   Ned A. Stewart, Special Chief Justice.

The appellant and plaintiff below, Wood McArthur (hereinafter referred to as appellant,) proceeding as a taxpayer, filed this case in the Chancery Court of Pulaski County, Arkansas against the appellees and defendants below, J. M. Smallwood, C. G. Hall, J. V. Satterfield, Jr., Plarry W. Parkin and J: L. Shaver (hereinafter referred to as appellees), as members of the Arkansas Justice Building Commission, seeking to have Act 375 of 1955 declared unconstitutional and void and in violation of certain constitutional rights of the plaintiff and other taxpayers similarly situated, and seeking to enjoin the appellees from complying with, or in any manner carrying out, the provisions of the Act. The appellees waived service of summons, entered their appearance, and filed a demurrer to the complaint which was sustained by the Pulaski Chancery Court, and after appellant declined to plead further, that Court entered a decree dismissing the complaint.

The appellant duly perfected an appeal to this Court. Thereafter the regular Court disqualified itself and a Special Court (composed of the writer, J. G. Burke, Harry P. Daily, Surrey E. Gilliam, Harry L. Ponder, John Mac Smith and Edward L. Wright) was appointed to decide the case. In the public interest, this Special Court entered an order granting permission to any interested party in the State to file a brief with the Court covering any issue the party desired to raise concerning Act 375 of 1955. These briefs were to be filed by July 11, but none have been forthcoming, and the Court has proceeded to determine the appeal upon the record and briefs filed in Case No. 5-764 and upon its own investigation of the law.

Act 375 of 1955 creates the Arkansas Justice Building Commission and authorizes the Commission to construct a Justice Building on the capitol grounds in Little Bock, Arkansas, and to finance the construction by the issuance of bonds to be payable from and secured solely by a pledge of the funds in the Justice Building Fund, established by the Act. The funds therein will be derived from the rental of space in the building to the Workmen’s Compensation Commission, the Public Service Commission, and such other persons or agencies as may occupy space therein; from moneys received from various county treasurers from additional costs taxed by the Act; from appropriations on a current basis; and from gifts, bequests, donations or other sources. Authorization is granted for lease agreements between the Commission and the Workmen’s Compensation Commission and the Public Service Commission, and provision is made for the payment of rentals thereunder from the Workmen’s Compensation Commission funds and Public Service Commission funds directly to the Commission without said funds first going into the state treasury. The funds derived from the additional costs taxed by the Act are also paid directly to the Commission and do not go into the state treasury. The bonds to be issued by the Commission shall be general obligations of the Commission only and shall in no event constitute an indebtedness for which the faith and credit of the State of Arkansas, or any of its revenues, are pledged. Appellant makes several attacks upon the constitutionality of the Act which will be hereinafter considered in order.

Delegation of Legislative Power

It is alleged that there is a delegation of legislative power to the Commission contrary to and in violation of Article 5, Section 1, as amended by Amendment No. 7, and Article 4, Sections 1 and 2, of the Constitution of the State of Arkansas. It is well settled that legislative bodies have no right to delegate the lawmaking power to commissions and boards established by the legislature, but it is equally well settled that the legislature may delegate the power to determine facts upon which the law makes or intends to make its own action depend and that general provisions may be set forth with power given to those who are to act under such general provisions to complete the details. See, among other cases, Fort Smith v. Roberts, 177 Ark. 821, 9 S. W. 2d 75; Fulkerson v. Refunding Board of Arkansas, 201 Ark. 957, 147 S. W. 2d 980; Currin v. Wallace, 306 U. S. 1, 59 S. Ct. 379, 83 L. Ed. 441. We have carefully examined Act 375 and find no unconstitutional delegation of legislative power. The Act is complete in itself and when placed into operation the objects accomplished necessarily will be those provided for and intended by the Legislature. The Commission will do no more than find the necessary facts, complete the necessary details, and exercise a discretion, within clearly defined limits, as to the execution, of the Act. We have considered the various grounds urged by the appellant as constituting an unlawful delegation of the legislative power and find them to be without merit.

Payment of Rent by the Workmen’s Compensation Commission and Public Service Commission and Payment of the Proceeds of the Costs Levied Directly to the Commission.

The Act provides that the rental payments under the lease authorized to be executed between the Workmen’s Compensation Commission and the Commission shall be paid directly from Workmen’s Compensation Commission funds to the Commission prior to the deposit of any of said moneys in the Workmen’s Compensation Fund in the state treasury. And, the Act authorizes the sale of the present Workmen’s Compensation Commission building and the deposit of the funds derived therefrom directly with the Commission to be applied to the rental payments in the manner provided in the Act. The Act contains a similar provision with reference to the rental payments by the Public Service Commission in that said payments are to be made from Public Service Commission funds prior to the payment of any of said funds into the state treasury. And, the costs collected pursuant to the provisions of the Act are also to be forwarded by the various county treasurers directly to the Commission, and none of the costs go into the state treasury. The appellant contends that these provisions of the Act are contrary to Article 5, Section 29 and Article 16, Section 12 of the Constitution of the State of Arkansas. In addition, appellant cites certain cases such as Moore v. Alexander, 85 Ark. 171, 107 S. W. 395; Jobe v. Caldwell, 99 Ark. 20, 136 S. W. 966; Dickinson, Auditor v. Clibourn, 125 Ark. 101, 187 S. W. 909; and others, for the propositions that one legislature cannot bind future legislatures concerning the expenditure of public funds by making continuing appropriations, that the life of an appropriation is two years, and that appropriations must state distinctly the maximum amount to be drawn in dollars and cents, and the purpose for the authorized expenditure. These cases do not reach the issue raised since they deal with money' in the state treasury and it appears to be well settled' I that such moneys must be disbursed by specific appro- j priations of not to exceed two years in duration. The., real issue is whether these funds must be paid into the , state treasury. If there is no such constitutional requirement, then there is no violation of the provisions relied upon by appellant and no conflict with the law of • the above cited cases. This Court has held, Gipson v. Ingram, 215 Ark. 812, 223 S. W. 2d 595, that there are certain public moneys, designated in that case “cash funds,” which may be controlled by the Legislature and in accordance with legislative directive need not be paid into the state treasury and need not be specifically appropriated. Appellant concedes that if the funds involved herein are “cash funds” within the Gipson v. Ingram case, supra, that decision is controlling. The Court in the Gipson v. Ingram decision, supra, defined “cash funds” as- follows (pages 816 and 817 of 215 Ark.):

“So, for purposes of this topic ‘cash funds’ are those received by the state agencies and institutions from sources other than taxes, as that term ‘taxes’ is ordinarily used.”

Appellant would distinguish the Gipson v. Ingram decision, supra, on the ground that the moneys involved herein are derived from “taxes” as that term is ordinarily used.

The Legislature has clearly designated the funds involved as “cash funds” and we find no express constitutional restriction upon the supreme power of the Legislature to deal with public revenues of any type prior to the time such revenues are placed in the state treasury. Therefore, since the Constitution is a restriction upon the otherwise supreme power of the Legislature rather than a grant of power to the Legislature, there would appear to be no sound constitutional reason for nullifying the express legislative action in this particular. Furthermore, these funds clearly qualify as moneys received from sources other than taxes, as that term is ordinarily used.

The Workmen’s Compensation Act establishes a special fund in the state treasury known as the Workmen’s Compensation fund and into that fund the various premium taxes and fees provided for by the Act are deposited. Original qualification fees are charged insurance carriers at the time of securing the first license to transact business and self-insurers at the time of qualifying as such, which fees are paid directly to the Workmen’s Compensation Commission. A premium tax in an amount calculated on the basis of the administration cost of the Act, but not to exceed 3% on all premiums received, is levied against each participating insurance carrier, and these fees are collected by the Insurance Commissioner. The Commission collects directly a comparable tax on self-insurers. Thus, it is seen that the Workmen’s Compensation Commission funds are collected from insurance carriers, who, by choice, participate in the writing of compensation, and from self-insurers, on the basis of financing the administration of the Act, and are segregated as a trust fund in the state treasury. These funds are collected and must be used for Workmen’s Compensation purposes and are not available for the general or other purposes of the State of Arkansas. The leasing of adequate facilities peculiarly designed for the functions of the Workmen’s Compensation Commission is obviously a proper part of the administration of the Compensation Act and a proper use of the funds collected therefor.

The cost of the operation of the Public Sex-vice Commission is financed by fees levied and charged against rail carriers, other carriers and utilities, and the amount of the fees collected is governed by the cost of the operation of the Public Service Commission. On receipt of the fees and charges provided for, the Secretax-y of the Public Service Commission pays the same into the state treasury and the amount so received by the treasurer is credited by him to the Public Sei-vice Commission fund therein. The deposits so made replace money appropriated out of the treasury for the operation of the Public Service Commission, and whether or not there is in the strict sense of the word a trust fund, the result is the same because the Public Service Commission funds are neither collected for nor used by the State for the general purposes or any other purpose thereof. Th.e leasing of adequate facilities for the functioning of the Public Service Commission is clearly a proper element of its operation and a proper use of the funds collected therefor.

The funds that will be realized from the additional' costs levied by the Act fall in the same category. They will be paid by those securing the services of our courts and, as in the case of other costs, are designed to help finance the services received. It seems too apparent for comment to observe that the proper housing of the Supreme Court, the Clerk, the Library and the Attorney G-eneral is essential to the administration of justice. Also, these funds are not and will not be available for the general or other purposes of the State. J

The funds involved, being special funds restricted in their use, are clearly moneys received from sources other than taxes, as that term is ordinarily used. Therefore, in our opinion, the Gipson v. Ingram decision, supra, is controlling and the legislative treatment of the funds involved is neither contrary to nor in violation of the Constitution of the State of Arkansas. This conclusion is entirely consistent with that reached by courts of other jurisdictions. See Ziegler, State Highway Commissioner v. Witherspoon, City Controller, 331 Mich. 337, 49 N. W. 2d 318; State ex rel. Fatzer, Atty. Gen. v. Kansas Armory Board, et al., 174 Kan. 369, 256 P. 2d 143; State v. Florida State Improvement Commission, 158 Fla. 743, 30 So. 2d 97. In the last cited case, there was pledged to the payment of revenue certificates issued to finance the construction of an office building, among other things, funds collected by statute for the administration of the Workmen’s Compensation Division of the Florida Industrial Commission. It was argued that this pledge amounted to the pledging of a state tax for the payment of rentals. Concerning such use of the Workmen’s Compensation fund, the court states (page 99 of 30 So. 2d) :

“Here we have a clear declaration that these funds are not the property of the state but that they shall be administered by the Commission, the State Treasurer being the mere custodian of them for that purpose. They are trust funds held in like category as funds held and administered by the Board of Commissioners of Everglades Drainage District in the drainage of the Everglades. Lainhart v. Catts, 73 Fla. 735, 75 So. 47. These funds never reach the state treasury as state funds; are never available for the general purposes of the state, but are solely for the use of the Florida Industrial Commission. They are similar to funds allocated to the Florida Improvement Commission that were discussed in State ex rel. Watson v. Caldwell, supra. Under such a state of facts we can conceive of no theory by which these funds could be called state funds, and thereby immunized by Section 6, Article IX of the Constitution, from use in servicing the revenue certificates.”

The Financing of the Building, Including the Execution of Leases and the Issuance of Bonds.

As previously pointed out, the Act authorizes the Commission to issue bonds to be payable from and secured solely by a pledge of the funds in the Justice Building Fund, and the Act expressly provides that the bonds shall be general obligations only of the Commission and in no event shall they constitute an indebtedness for which the faith and credit of the State, or any of its revenues, are pledged. Appellant challenges the provisions of the Act pertaining to the financing of the Justice Building as being in violation of Article 16, Section 1 as amended by Amendment No. 13, and Amendment No. 20. Article 16, Section 1 of the Constitution prohibits the state from lending its credit and from issuing any interest bearing treasury warrants or scrip. By the express language of Act 375, the credit of the State of Arkansas is not involved and this Court has held that Article 16, Section 1 did not even prohibit the State from issuing bonds. In Brown v. The Arkansas Centennial Commission, 194 Ark. 479, 107 S. W. 2d 537, this Court stated (page 482 of 194 Ark.):

“It is plainly manifest from this language that the bonds to be issued are not obligations of the State, but ‘shall be solely and exclusively the obligations of the Commission in its corporate and representative capacity. ’ This language is too plain to be misunderstood and is not open to construction. So the State is not lending its credit and it is not issuing any interest-bearing treasury warrants or scrip, and the provisions of said section of the Constitution are not invaded. State Military Note Board v. Casey, 185 Ark. 271, 47 S. W. 2d 23. Even where the State issued its own bonds to' borrow money for its own uses and purposes we held there was no violation of this provision of the Constitution. Bush v. Martineau, 174 Ark. 214, 295 S. W. 9; Connor v. Blackwood, 176 Ark. 139, 2 S. W. 2d 44; Tapley v. Futrell, 187 Ark. 844, 62 S. W. 2d 32; Sparling v. Refunding Board, 189 Ark. 189, 71 S. W. 2d 182.”

The pertinent provisions of Amendment No. 20 are that ‘ ‘ the State of Arkansas shall issue no bonds or other evidence of indebtedness pledging the faith and credit of the State or any of its revenues for any purpose whatever, except by and with the consent of the majority of the qualified electors of the State.” The Arkansas Justice Building Commission, although a public agency, is created as an entity with specified authority and powers and for purposes of Amendment No. 20, the Commission, in our opinion, is not the State of Arkansas. In similar situations this Court has authorized public agencies to issue bonds pledging for their payment revenues available to the particular agency and has rejected challenges of unconstitutionality under Amendment No. 20.

In Davis v. Phipps, 191 Ark. 298, 85 S. W. 2d 1020, 100 A. L. R. 1110, bonds were to be issued by the State Board of Education under Act No. 333 of Í935, which authorized the issuance of bonds to be secured by school district bonds which had been delivered to the State Board of Education as security for loans from the revolving fund. The court stated, page 303:

“But, aside from further speculation, we may say that Amendment No. 20 prohibits bonds or instruments issued by the State itself for the security of which is pledged the State’s faith and credit. A bond is a written promise to pay money, and we have said, in the foregoing discussion, that the State is not issuing these bonds, and it would not be bound for their payment. Therefore these bonds, which the State Board of Education is about to issue, are not within the prohibited class.”

And on page 304:

“Finally, it may be suggested that the pledges contemplated by the State Board of Education are not within the forbidden class for another reason; that is, under Amendment No. 20 it would seem that pledges of revenue are forbidden only when such pledges are to secure State bonds. This seems to be in accordance with the language of Amendment No. 20.”

In Jacobs v. Sharp, 211 Ark. 865, 202 S. W. 2d 964, there was involved Act No. 62 of 1947, which authorized the issuance of bonds by state institutions to finance buildings, the bonds to be obligations of the Board of Trustees of the particular institution only and not obligations of the State. The bonds were to be payable from revenues of the institutions, such as dormitory rental charges. The court upheld the validity of the Act and on page 870 of 211 Ark. stated:

“Therefore, it appears to us to be certain that the bonds to be issued by the Board of Trustees are not State bonds and that the faith and credit of the State are not pledged. Not being the obligations of the State of Arkansas, Amendment No. 20 has no application to them and is not violated because the prohibition therein relates only to State bonds.”

The moneys pledged to the payment of the bonds in the Jacobs v. Sharp decision, supra, were admittedly public revenues. Therefore, it seems to be well established by the decisions of this Court that the pledging of so-called state or public revenues is not prohibited by Amendment No. 20 unless the pledge is to the payment of State of Arkansas bonds. Thus, the real inquiry is whether the bonds that will be issued by the Commission, for purposes of Amendment No. 20, must be classified as State of Arkansas bonds regardless of the express provision in the Act that they are not. And, in making this inquiry, the Court must look to the substance of the transaction. Carpenter v. McLeod, Comptroller, 202 Ark. 359, 150 S. W. 2d 607; State ex rel. Attorney General v. State Board of Education, 195 Ark. 222, 112 S. W. 2d 18.

To properly determine the matter, it is necessary to analyze the funds that will be pledged to the obligations of the Commission. The Justice Building Fund is established as a trust fund by Section 15 of the Act. Subsection (a) of Section 15 covers the moneys that will be received from the various county treasurers from the additional costs taxed by Section 14 of the Act. Section 14 expressly provides that the costs will be collected only in the event the Legislature does not make an annual appropriation of at least $28,000 to the Justice Building-Fund for the payment of rent for space occupied by the Supreme Court, the Clerk of the Supreme Court, the Supreme Court Library, and the Attorney General. There is no obligation on the Legislature to make this appropriation and there is no attempt to bind future legislatures in this particular. The appropriations, being current in nature, present no constitutional problem because they will simply amount to a bestowing by the Legislature of its bounty, and in this regard it is supreme. Cone v. Hope-Fulton-Emmett Road Improvement District, 169 Ark. 1032, 277 S. W. 544; Grable v. Blackwood, 180 Ark. 311, 22 S. W. 2d 41; Page, State Treasurer v. Rodgers, Trustee, 199 Ark. 307, 134 S. W. 2d 573; Clayton, State Treasurer v. City of Little Rock, 211 Ark. 893, 204 S. W. 2d 145. Furthermore, there is no constitutional objection to the making by one legislature of a continuing levy. Moore v. Alexander, 85 Ark. 171, 107 S. W. 2d 395. The only other consideration necessary in the determination of whether there are sufficient obligations on the part of the State of Arkansas with reference to the additional costs levied to constitute this a State of Arkansas bond is whether the levy is irrevocable. There is no such express provision in the Act, but it does appear to be established under the decisions of this Court that the law in effect at the time of the making of a contract becomes a part of it, as if expressly referred to and incorporated in its terms. See Adams v. Spillyards, 187 Ark. 641, 61 S. W. 2d 686, 86 A. L. R. 1493; Hospelhorn, Receiver v. Burke, 196 Ark. 1028, 120 S. W. 2d 705; City of Little Rock v. Community Chest of Greater Little Rock, 204 Ark. 562, 163 S. W. 2d 522, 142 A. L. R. 1072; Liebe v. Sovereign Camp Woodmen of the World, 205 Ark. 540, 170 S. W. 2d 370; Gulf Insurance Company v. Holland Construction Co., 218 Ark. 405, 236 S. W. 2d 1003. And, see the Michigan case of Ziegler v. Witherspoon, supra, wherein the court stated on page 327 of 49 N. W. 2d:

“It is not disputed that when the bonds are issued a contract will be made between the bondholders and the issuing authorities, and that the contract will include the provisions of all relevant existing laws. 'It is also settled that the laws which subsist at the time and place of the making of a contract, and where it is to be performed, enter into and form a part of it, as if they were expressly referred to and incorporated in its terms.’ Von Hoffman v. City of Quincy, 4 Wall. 535, 71 U. S. 535, 18 L. Ed. 403. See Hammond v. Place, 116 Mich. 628, 74 N. W. 1002; City of Pontiac v. Simonton, 271 Mich. 647; 261 N. W. 103. Thus the contract will include those acts which authorize the collection of taxes for the State highway fund.”

Therefore, when bonds are issued by the Commission, the bondholders may well acquire contractual rights with reference to this and other provisions of Act 375 so that an attempt by a subsequent Legislature to abrogate or alter such provisions in such a manner as to impair the security of the bondholders would constitute an impairment of their contractual rights. Even so, in our opinion, there would he no violation of Amendment No. 20. The levy of additional costs creates a special fund in every sense of the word and the funds never reach the state treasury. An irrevocable levy of this nature places no obligation upon any funds of the State which have heretofore been or which would otherwise be available for the general or other purposes of the State. The bondholders can look only to those sources of revenue made available by the Act, and if they are insufficient, no claim of any nature can be asserted against the State. We have carefully considered the Carpenter v. McLeod, Comptroller, supra, and State ex rel. Atty. General v. State Board of Education, supra, decisions, and have concluded that they are distinguishable. Those decisions were dealing with funds in the state treasury and one legislature was attempting to bind another as to the disposition of state treasury funds. This is not true in the instant case and we have heretofore pointed out the supreme power of the Legislature to deal with these funds without the necessity of future legislative action. Furthermore, our conclusion is consistent with what we believe to be the correct interpretation of Amendment No. 20, as set out in the Davis v. Phipps, supra, and Jacobs v. Sharp, supra, decisions — that is, the irrevocable pledging of state funds is condemned only when they are pledged to full faith and credit obligations of the State. There was necessarily an irrevocable pledging of public revenues in the Jacobs v. Sharp decision, supra, but, as is the case here, the pledge was not of state-treasury funds, and, therefore, the bonds were not in fact State of Arkansas obligations. Our research reflects that this is the view taken by a substantial majority of courts of other jurisdictions.

The case of State of New Mexico ex rel. Capitol Addition Building Commission v. James J. Connelly, State Treasurer, 39 N. M. 312, 46 P. 2d 1097, 100 A. L. R. 878, is peculiarly in point from the standpoint of the additional costs levied by Section 14 of the Act. That case involved an Act of the New Mexico Legislature creating the Capitol Addition Commission and authorizing the issuance of debentures secured by an irrevocable pledge of the proceeds of a $2.50 levy upon each and every civil action filed in the offices of the clerks of the various district courts. Concerning the point immediately involved, the court stated:

“And so we conclude that the debentures in question, neither requiring nor warranting a resort to the general taxing power of the State for their retirement, but payable instead from proceeds of an imposition in the nature of an excise laid upon all civil actions, filed with the various district clerks of the state, in addition to the regular docket fee, to be converged into a special fund in the hands of the state treasurer, will not constitute a general obligation on the part of the State. Hence, they are not within the interdiction of article 9, Sec. 8. of the State Constitution.”

See the following New Mexico cases handed down subsequently in which that court adheres to the special fund doctrine: State Office Building Commission v. Trujillo, 46 N. M. 29, 120 P. 2d 434; Stone v. City of Hobbs, et al., 54 N. M. 237, 220 P. 2d 704.

In Ziegler v. Witherspoon, supra, there was a pledge of the income received from motor vehicle taxes — a special tax not available for the general purposes of the state. On page 326 of 49 N. W. 2d, the court stated:

“For these reasons we find that the constitutional debt limitation will not apply to bonds issued under Act No. 22, supra.

“This conclusion has been reached by a large majority of other courts which faced the same problem. In Gruen v. State Tax Commission, 35 Wash. 2d 1, 211 P. 2d 651, 679, the court said:

“The cases which we have considered state what must be held to be the unanimous view of the courts of this country upon the question of whether or not bonds payable out of a special fund, supplied by an excise tax, constitute a debt within the meaning of constitutional limitations fixing a general debt limitation. Based upon those cases and the cited cases decided by this court, which indicate an approval of the special fund doctrine' and, further, that excise taxes are not controlled by constitutional provisions, we hold that the issuance and sale of bonds provided for in this act do not in any way constitute a debt against the state of Washington. The bonds provided for are to be paid from a special fund and solely from anticipated revenues to he derived from the sale of cigarettes. They are not, and cannot he, a general obligation of the state. In the event the anticipated profits do not materialize and the fund becomes exhausted, the purchaser of the bonds has no legal redress against the state. He must look solely to the fund upon which they are drawn.

“ ‘Whether there would he a moral obligation to redeem the bonds is a matter which does not concern this court. It is sufficient to say there is no legal obligation to do so in the event the special fund is exhausted. In that event, there will he no additional tax burden by reason thereof; for, as just stated, there is no general obligation on the part of the state to redeem the bonds.’ ” See also the following cases: Nichols v. Williams, et al., 338 Mich. 617, 62 N. W. 2d 103; State v. Florida State Improvement Commission, supra, State v. Florida State Improvement Commission, 160 Fla. 230, 34 So. 2d 443; State ex rel. Fatzer, Atty. Gen. v. Armory Board, et al., supra; Guthrie, et al. v. Curlin, Com’r of Highways, et al., Ky., 263 S. W. 2d 240.

Turning to the other moneys that will he placed in the Justice Building Fund, Sub-section (b) of Section 15 of the Act covers rental payments under the lease agreement to be executed by the Workmen’s Compensation Commission and the Justice Building Commission, and the sums to he received from the sale of the Workmen’s Compensation Commission building. Section 11 of the Act expressly authorizes the Workmen’s Compensation Commission and the Justice Building Commission to enter into a lease for such term, containing such provisions, and for such amount as the said parties shall determine. It is contemplated that a lease will he executed and that the term thereof will extend over the life of the bonds to be issued by the Commission. There is express legislative authorization for the contemplated long term leasing and we see no constitutional objection to the action taken by the Legislature in this regard. Long-term contracts are necessarily involved in every bond issue of state agencies heretofore approved by this Court, and this Court has approved similar long term contracts dealing with other subject matter. A ten year contract under which the Board of Penitentiary Commissioners obligated itself to furnish convict labor, vTas upheld in McConnell v. Ark. Brick & Mfg. Co., 70 Ark. 568, 69 S. W. 559. In Chidester School District No. 50 v. Faulkner, 218 Ark. 239, 235 S. W. 2d 870, it was held that the board of directors of a school district might enter into a contract covering the employment of a teacher or other officer for a term extending beyond that of the board itself, and that such contract was binding upon succeeding boards. See annotations 70 A. L. R. 794 and 149 A. L. R. 336.

The Court stated on page 242 of 218 Ark.:

“In Gardner v. No. Little Rock Special School District, 161 Ark. 466, 257 S. W. 73, this court, approved the general rule announced in 24 R. C. L., page 579, as follows: ‘In the absence of an express or implied statutory limitation, a school board may enter into a contract to employ a teacher or any proper officer for a term extending beyond that of the board itself, and such contract, if made in good faith and without fraudulent collusion, binds the succeeding board. It has even been held that, under proper circumstances, a board may contract for the services of an employee to commence at. a time subsequent to the end of the term of one or more of their number and subsequent to the reorganization of the board as a whole, or even subsequent to the terms of the board as a whole. The fact that the purpose of the contract is to forestall the action of the succeeding- board may not, of itself, render the contract void. But a hiring for an unusual time is strong- evidence of fraud and collusion, which, if present, would invalidate the contract.’ See, also, School District No. 45, Pope County v. McClain, 185 Ark. 658, 48 S. W. 2d 841.

Similar leasing arrangements have been repeatedly approved by the highest courts of other jurisdictions. In Preston, et al. v. Clements, Governor, et al., 313 Ky. 479, 232 S. W. 2d 85, it was held that the Kentucky State Property and Building Commission could legally enter into contracts with other state agencies to rent the Capitol Annex Building when ready for occupancy. The building was to he financed by revenue bonds. In State v. Florida State Improvement Commission, 159 Fla. 338, 31 So. 2d 548, revenue certificates were to be issued to provide funds for the construction of toll roads to be payable from the income derived from fees and tolls. Before construction, it was agreed to lease the same to the State Road Department in lieu of the actual collection of tolls and the plan was upheld as being valid. In Loomis v. Keehn, et al., 400 Ill. 337, 80 N. E. 2d 368, an act authorizing the construction of armories and the renting of the same to the state was upheld. In State v. Florida State Improvement Commission, supra, in approving a somewhat similar lease arrangement, the court states (pages 99 and 100 of 30 So. 2d):

íí * * * State agencies generally have authority to contract with each other in so far as necessary to administer duties within the scope of their authority.

“ * * * It is also our view that the funds collected by the Florida Industrial Commission pursuant to Chapter 440.51 (b) Florida Statutes of 1941, F. S. A., are trust funds for the exclusive use of paying its administrative expenses, that it is a voluntary assessment paid by those who take advantage of the act, that it is not a state fund and that the Florida Industrial Commission was authorized to pledge said funds in payment of the lease contract with the Florida State Improvement Commission. ’ ’

See also State ex rel. Thompson, Atty. Gen. v. Giessel, Director of Budget and Accounts, 267 Wis. 331, 65 N. W. 2d 529; Dean v. Kuchel, 35 Cal. 2d 444, 218 P. 2d 521; State ex rel. Fatzer, Atty. Gen. v. Armory Board, supra.

From the above, we conclude that the contemplated long term leasing arrangement between the "Workmen’s Compensation Commission and the Justice Building Commission is valid. Furthermore, the Workmen’s Compensation funds are designated trust funds collected and used for a specific purpose and in no sense are they funds which have been or could otherwise be available for the general or other purposes' of the State, and, of course, that portion thereof to be used for rental payments under the lease never reaches the state treasury. Therefore, for the reasons heretofore set forth with reference to the additional costs levied by the Act, we find no violation of Amendment No. 20 even though the authorization set forth in Act 375 is irrevocable in the sense that it cannot be abrogated by a subsequent Legislature in such a manner as to impair the obligation of the bondholders ’ contract.

As to the contemplated sale of the present Workmen’s Compensation building and the placing of the proceeds thereof into the Justice Building Fund to be applied to the rent of the Compensation Commission, we find no diversion of funds because they will still be utilized for Workmen’s Compensation purposes, and, as previously pointed out, the Legislature can bestow its bounty where it wishes. Also, all objections to the disposition of state property appearing in the decision of this Court in Harris v. Emmerling, 224 Ark. 40, 271 S. W. 2d 618, decided October 11, 1954, appear to be fully complied with.

The situation existing with reference to the lease agreement to be executed by the Public Service Commission and the Justice Building Commission is the same as in the case of the Workmen’s Compensation Commission, and what has been heretofore said in this opinion with reference to the validity of the Compensation Commission lease is applicable and controlling as to the Public Service Commission lease. There is, in our opinion, no violation of Amendment No. 20 in either instance.

Any other funds that will be supplied by the State, covered by Sub-section (d) of Section 15, will be on a current basis and pursuant to no obligation on the part of the State to supply any such funds.

The only obligations of the State of Arkansas with reference to these bonds are entirely negative in form, being those in connection with the constitutional impairment of contract provisions, and since these obligations are with reference to clearly designated special funds, which never find their way into the state treasury, and which have not been and cannot be available for the general or other purposes of the State, and since there can be no obligation on the part of the State,with reference to these bonds if the funds specified in the Act prove insufficient, it is our considered opinion that the bonds are not state bonds within the contemplation of Amendment No. 20. The cases relied upon by appellant are easily distinguishable. In Opinion of the Justices, 146 Me. 183, 79 A. 2d 753, the act made the execution of a lease to the State of Maine mandatory and in Mc-Cutcheon v. State Building Authority, et al., 13 N. J. 46, 97 A. 2d 663, the leasing was restricted to state agencies. Furthermore, it appears that the obligations under the leases involved therein would have to be discharged from funds raised by general taxation which would otherwise be available for general or other state purposes. The obligations under the leases were not specifically restricted to designated special funds which would in no event, be available for general or other state purposes, as is the case under Act 375. And, leasing is not restricted to state agencies by Act 375. As appears from the admitted facts in this case and from the authorization of the Act itself, the Justice Building Commission will covenant to charge and collect rent from the occupants of the building, whoever they may be, which, together with such other revenue of the Commission as may be available therefor, will always be sufficient in amount to insure the prompt payment of the principal of and interest on the bonds when due and to maintain an adequate reserve for contingencies, and it is entirely possible that it may become necessary for tbe Commission to lease space to others.

The Additional Costs Levied by Section 14 of the Act

The appellant contends that this section of the Act violates Article 2, Section 13 of the Constitution, which provides in part that every person ‘1 ought to obtain justice freely and without purchase, completely, and without denial, promptly and without delay, conformably to the laws.” This Court has held that it is within the power of the Legislature to make reasonable provisions for the payment of costs of litigation so as to help defray the expenses of the courts. Marshall v. Holland, 168 Ark. 449, 270 S. W. 609. The proper housing of the Supreme Court, the Clerk, the Library and the Attorney General is an obvious and necessary expense of the administration of justice and of our courts. These costs are levied at the circuit, chancery and probate court levels and appeals from those courts are directly to the Supreme Court. The mere fact that there are no appeals to the Supreme Court in a substantial number of cases filed in the circuit, chancery and probate courts, of which fact we take judicial knowledge, is immaterial. The right of appeal is a valuable asset to any litigant and is available to all litigants. The mere fact that these rights may not be utilized in every case does not detract from their importance and there is no constitutional objection to levying costs to contribute to the expense of the maintenance of those rights.

Exemption from Taxation

Section 16 (f) of the Act exempts the bonds to be issued by the Commission from all taxes, state, county and municipal, including income taxation and inheritance taxation. Appellant challenges this provision as being unconstitutional under Article 16, Sections 5 and 6 of the Constitution of the State of Arkansas. We agree with the contention of the appellant insofar as property taxation is concerned. This Court has held that these provisions of the Constitution prohibit any legislative attempt to exempt bonds from property taxation at least where the bonds are held by any person or agency whose property is not otherwise exempt from taxation. Jernigan v. Harris, 187 Ark. 705, 62 S. W. 2d 5; Ward v. Bailey, Governor, 198 Ark. 27, 127 S. W. 2d 272. However, the exemption from state income taxation is valid. Ward v. Bailey, Governor, supra; Fulkerson v. Refunding Board of Arkansas, supra; Sims v. Ahrens, 167 Ark. 557, 271 S. W. 720; 4 Ark. L. Rev. 433, Property Tax Exemption in Arkansas. And, inasmuch as an inheritance or estate tax is not a property tax, that exemption is valid. State v. Handlin, 100 Ark. 175, 139 S. W. 1112; Gates v. Bank of Commerce & Trust Co., 185 Ark. 502, 47 S. W. 2d 806; Wiseman v. Phillips, 191 Ark. 63, 84 S. W. 2d 97.

The invalidity of the provisions of Section 16 (f) of the Act insofar as they purport to exempt the bonds from property taxation does not affect the validity of other provisions of the Act which we have herein sustained. Section 22 of Act 375, the separability provision; Jernigan v. Harris, supra.

CONCLUSION

The action of the lower court in sustaining the demurrer, and upon the plaintiff’s declining to plead further, in dismissing the complaint is affirmed.


text:
    Lester v. Pilkinton and Howard, Judges.
    5-821
    282 S. W. 2d 590
    Temporary opinion delivered August 31, 1955.
    [Confirmed by Court on October 3, 1955.]

      John H. Wright, for petitioner.

      Loohadoo, Gooch é Loohadoo, for respondent.
   George Rose Smith, J.

This application for a temporary writ.of prohibition has been presented to me during the court’s summer recess. The petitioner, Mae Thomas Lester, asks that the respondents, who are the judges of the Clark Probate Court, be prohibited from making any further orders in a guardianship proceeding in which this petitioner is the assertedly incompetent person. It is the petitioner’s contention that this guardianship is void (a) for want of notice to her when the proceedings were originally instituted and (b) for want of a judicial finding that she is in fact incompetent.

On November 23, 1951, when this petitioner was thirty-nine years old, the proceedings in the probate court were instituted by her daughter. On that date the court entered an order finding Mrs. Lester to be incompetent and directing that she be transferred to the State Hospital for treatment. It does not seem ever to have been contended that Mrs. Lester is insane; instead, her asserted incompetency results from alcoholism, which by statute is a basis for a finding of incompetency. Ark. Stats. 1947, § 57-601. On November 27, 1951, the court appointed Arvin A. Ross as Mrs. Lester’s temporary guardian, and Ross took charge of his ward’s real estate and other property.

About two weeks later the State Hospital discharged Mrs. Lester, the staff finding that she was without psychosis but that she had a schizoid personality associated with chronic alcoholism.

On February 29, 1952, the court found that the temporary guardianship should be made permanent, the order reciting that the court had appointed three named physicians to examine Mrs. Lester and that the court was acting after having heard the testimony of these doctors. By the same order Boss was discharged as temporary guardian and C. H. Berryman was named as permanent guardian. An order of April 3, 1952, approved the temporary guardian’s final accounting and directed that the estate be turned over to the permanent guardian. On June 17, 1955, the court granted Berry-man’s request that he he discharged and designated George S. Dews as guardian in succession. It appears from the petition and from statements of counsel in oral argument that throughout the guardianship proceeding Mrs. Lester, except for her brief confinement in the State Hospital, has been living at home with her husband. She is free to come and go as she likes. Her various guardians, however, have continuously had charge of her property, collecting rents, making sales, paying bills for her, etc. Mrs. Lester insists that she is completely competent, that she no longer indulges in the use of alcohol, and that the allegedly void guardianship proceeding should be terminated by order of this court.

In my opinion the record fails to sustain the contention that the proceedings below are void. It is true that the initial order of November 23, 1951, failed to recite that a summons or other notice had been served on Mrs. Lester; hut that fact, if it was ever of importance, has long since become immaterial. In so far as the temporary guardianship is concerned, the statute permits the appointment to be made without notice. Ark. Stats., § 57-620. With respect to the permanent guardianship proceeding Mrs. Lester has undoubtedly entered her appearance. Two of the orders mentioned above— those of February 29, 1952, and June 17, 1955 — recite that Mrs. Lester was present with her attorney. The petition now before me alleges: “Petitioner has numerous times orally and by letter and twice by formal petition asked the Clark Probate Court to remove and revoke said above described guardianship orders and the order finding her incompetent, such petitions having been presented to Judge Pilkinton September 11, 1952, and to Judge Howard September 1, 1954. ’ ’ By participating in the case, in person and by her attorneys, the petitioner has undoubtedly entered her appearance if she is in fact competent. Mercer v. Motor Wheel Corp., 178 Ark. 383, 10 S. W. 2d 852. And of course if she is incompetent then the entire theory of her present petition for prohibition fails.

Nor can it be said that there is merit in the assertion that the probate court has not made a finding of incompetency. That determination was expressly made in the order of November 23, 1951, and at least by inference was reaffirmed in the order of February 29, 1952, when the court considered the testimony of three physicians who had been appointed to examine the ward. It is insisted that the issue of competency should have been explored ele novo when Dews was appointed as guardian in succession in 1955, for the reason that the statute provides that a successor shall be appointed “in the same manner and subject to the same requirements as are . . . provided for an original appointment of a guardian. ” Ark. Stats., § 57-622. In my view this language is merely intended to carry forward the original requirements with reference to the guardian’s qualifications, bond, and the like. Since the existence of incompetency, as originally determined, is presumed to continue until a change has been established by proof, there would be no sound reason for requiring the court on its own initiative to reexamine the issue whenever it happened to be necessary to appoint a guardian in succession.

If this petitioner wishes to assert her restored competency as a reason for terminating the guardianship, her petition should be addressed to the trial court. Ark. Stats., § 57-643. No basis for the issuance of a writ of prohibition has been shown.

Temporary writ denied.