author: John I. Purtle, Justice.

text:
    Larry LEE and Mary Lou LEE v. John DOE, CARTER OIL COMPANY, INC. and CARTER CONSTRUCTION COMPANY, INC.
    81-166
    626 S.W. 2d 353
    Supreme Court of Arkansas
    Opinion delivered December 21, 1981
    [Rehearing denied February 1, 1982.]

      Clark ¿r Reis, by: Mark P. Clark, for appellants.

      Friday, Eldredge ir Clark, by: William H. Sutton, and Tom F. Lovett of Tom Forest Lovett, P.A., for appellees.
   John I. Purtle, Justice.

This is an appeal from two summary judgments which dismissed tort actions against the Carter Oil Company and the Carter Construction Company. The actions were brought by Mary Lou Lee and appellant, Larry Lee, who had received workers’ compensation benefits as an employee of Carter Oil Company. Appellants argue that there were genuine issues of facts to be determined and therefore it was error to grant the summary judgments. We agree with the appellants for the reasons set out below.

Larry Lee and his wife, Mary Lou Lee, lived in a mobile home on the Carter Oil Company property where she operated a self-service gasoline station. Mary Lou Lee received a straight commission on the sale of gasoline, not being paid by the hour, day or month. There were no withholdings from the commission paid to Mary Lou Lee for F.I.C.A. or income tax purposes. It was within her discretion to decide when to open and close the station. There is no indication in the record that she was subject to the control of Carter Oil Company. Her husband was drawing total disability benefits from the Social Security Administration. On occasion he would perform small duties around the station but was on no set schedule and received no pay for his services.

Carter Oil Company and Carter Construction Company were family owned corporations operating from the same office. A driver who was on the Carter Construction Company payroll was sent by his supervisor to deliver gasoline to the station operated by Mary Lou Lee. The driver delivered the gasoline in a Carter Oil Company truck to the Carter Oil Company owned station. During the delivery process he spilled a quantity of gasoline on the driveway. The appellant Larry Lee attempted to wash the gasoline away with a garden hose but during the process an explosion occurred and he was severely injured, receiving burns over 63% of his body. Also, his two small fingers were so badly burned they had to be amputated.

While appellant Larry Lee was in the hospital a representative of Carter Oil Company’s insurance carrier came to his bédside and took a statement wherein appellant stated he was employed by Carter Oil Company. Workers’ compensation benefits were immediately forthcoming through weekly payments as well as the payment of his medical expenses. No claim was filed by appellant with the Workers’ Compensation Commission, nor did appellant seek an attorney in any regard at this point. After he was released from the hospital the insurance carrier discontinued benefit payments and approached him about settling the claim. At this time claimant informed the carrier that he was not an employee of Carter Oil Company. Subsequently he filed a negligence action against Carter Oil Company and Carter Construction Company. The complaint alleged that the truck driver was negligent in transferring the gasoline from the delivery truck to the storage tanks and as a result of this negligence the appellant suffered severe and grievous injuries. He alleged the driver was an employee of the oil company and the construction company and that they were jointly responsible. The Carter Construction Company answered and denied that the driver was its employee and stated that the truck driven by him was owned by the oil company. Carter Oil Company answered generally, denied the allegations in the complaint, and affirmatively pleaded that appellant was an employee of the oil company concluding that workers’ compensation was his exclusive remedy. The oil company also alleged contributory negligence on the part of the appellant.

Carter Oil Company moved for a summary judgment on the grounds that there were no genuine issues of material fact to be determined by the court. In the motion they alleged that appellant was their employee and his remedy was limited to workers’ compensation benefits. Appellant responded to the oil company’s motion and alleged that the issue of employment status was a question of fact to be determined by the jury. He further stated there was a dispute as to whether the truck driver was an employee of the oil company. He also denied that he was estopped from asserting his tort action by having accepted workers’ compensation benefits which were voluntarily tendered to him. Appellant filed an affidavit that he was not employed by Carter Oil Company at the time of the accident and that his former supervisor at the oil company was aware of the fact that he was no longer an employee. Mary Lou Lee also filed an affidavit stating that her husband’s employment was terminated by the oil company in September 1977 and thereafter she operated the station on her own.

Carter Construction Company moved for a summary judgment on the ground that the truck driver was an agent-servant and employee of the oil company and not the construction company. The motion further stated that the construction company had no interest in the oil company. Therefore, Carter Constructon Company alleged, there was no genuine issue of fact. In response to this motion the appellant alleged that depositions which had been taken in the case did not establish ownership of the equipment or the truck involved. The response also stated that the questions of ownership, control and employment remained to be resolved.

The appellant responded to the interrogatories of the construction company stating that he was not employed at the time of the accident. He further stated that he understood his medical expenses were paid by the workers’ compensation carrier.

Carter Construction Company responded by interrogatories that the truck driver was their employee on the date of the accident and that he was obligated to haul construction company equipment for them. The construction company further stated that on the date of the accident the driver had been loaned to the oil company to perform duties as a truck driver.

The record revealed at the time the summary judgments were granted that the oil company denied the truck driver was their employee at the time of the delivery of the gasoline. The construction company claimed that he was their employee on that date but that he had been loaned to the oil company.

The workers’ compensation carrier alleges the appellant is estopped to deny that he was an employee of the oil company. The claimant alleged that he was not an employee of anyone and that the truck driver was an employee of the construction company and/or an employee of both companies.

The court granted the motions for summary judgment on the theory that the truck driver was an employee of the construction company at the time of the incident but was on loan to the oil company. It further held that Larry Lee was an employee of the oil company and that he had drawn substantial sums of money from the workers’ compensation carrier and could not recover in tort against Carter Oil Company. Although the court’s opinion did not state that appellant was estopped to deny his employment status, there was strong indication that this was a part of the court’s holding.

Both Larry Lee and his wife stated under oath that he was not an employee of the oil company. Carter Construction Company admitted that the truck driver was their employee but alleged he was on loan to the oil company at the time of the accident. The Carter Oil Company argued that the driver was not their employee but was performing work for them on loan from Carter Construction Company.

A summary j udgment is an extreme remedy and should never be granted if there is a genuine issue as to any material fact. In Arnold v. All American Assurance Co., 255 Ark. 275, 499 S.W. 2d 861 (1973), we stated:

The only conditions that justify granting a summary judgment are those under which the moving party is entitled to judgment as a matter of law. (Cites omitted). These conditions exist only when there is no genuine issue as to any material fact and when, even though the facts are undisputed, reasonable, fair-minded persons could only draw one conclusion from them. (Cites omitted). We do not find such a condition to prevail here. The burden was upon appellee to show its entitlement to summary judgment, and if there is any substantial evidence on which a contrary result could be reached, the judgment should be denied. (Cites omitted).

There are several facts which seem to be substantially disputed: (1) whether Larry Lee was an employee of the oil company; (2) whether the truck driver was an employee of the oil company or the construction company or both; and, (3) whether the appellant was estopped to deny his status as an employee after having received benefits from the workers’ compensation carrier.

As previously stated, both Larry Lee and his wife deny that he was an employee of Carter Oil Company. It is not seriously disputed that he did no substantial work around the property and that he received no money for the performance of any services. The only benefit he received was that his wife had a job and was furnished a place for the family to live. This certainly would not conclusively show that he was an employee of the Carter Oil Company.

The truck driver was admittedly on the payroll of the construction company and was sent by a construction company supervisor to deliver gasoline to the Carter Oil Company. Presumably the supervisor could have called him off the job and returned him to his regular job of delivering material for the construction comany at any time he chose. It is not impossible that the driver was an employee of both companies. It appears the pleadings, depositions and interrogatories at least place the issue of employment of both appellant and the truck driver in dispute.

The estoppel question is perhaps the most serious one in this case. It has been said that estoppel arises where, by fault of one party, another has been induced, ignorantly or innocently, to change his position for the worse in such manner that it would operate as a virtual fraud upon him to allow the party by whom he has been misled to assert the right to recovery. Bethell v. Bethell, 268 Ark. 409, 597 S.W. 2d 576 (1980). In the present case the insurance carrier went to the hospital and voluntarily started payments to the appellant. There is nothing in the record to indicate that appellant practiced a fraud upon the carrier. In fact, such an allegation is not even asserted in the pleadings. Certainly, the carrier is not damaged in this case because if the appellant makes a recovery, the carrier will be entitled to reimbursement from the proceeds of the recovery. It is obvious that the carrier, who was also the liability carrier for Carter Oil Company, would be out considerably less money if it were able to pay workers’ compensation benefits rather than full damages upon a recovery for negligence.

A summary judgment prevented a full hearing on the case and precluded any consideration by a jury of the allegations made by the various parties. A summary judgment should be granted only in extreme circumstances. Trace X Chemical, Inc. v. Highland Resources, Inc., 265 Ark. 468, 579 S.W. 2d 89 (1979). A summary judgment should not be granted where reasonable minds could differ as to the conclusions they could draw from the facts presented. Arnold v. All American Assurance Co., supra, and Arkansas Rules of Civil Procedure, Rule 56 (c). It was the duty of the parties moving for a summary judgment to prove the nonexistence of a fact issue. Deltic Farm & Timber Co. v. Manning, 239 Ark. 264, 389 S.W. 2d 435 (1965).

We feel it was improper to allow summary judgments in this case as the record stood at the time of said judgments. Therefore, the case is remanded with directions to proceed in the usual manner.

Reversed and remanded.

Hays, J., concurs.


source: Caselaw Access Project

author: John I. Turtle, Justice.

license: Public Domain

text:
    Avery N. RICHARDSON v. STATE of Arkansas
    CR 81-87
    625 S.W. 2d 504
    Supreme Court of Arkansas
    Opinion delivered December 21, 1981

      Macom, Moorhead, Green ir Henry, by: J. W. Green, Jr., for appellant.

      Steve Clark, Atty. Gen., by: Victra L. Fewell, Asst. Atty. Gen., for appellee.
   John I. Turtle, Justice.

During the course of appellant’s trial for first degree murder the trial court allowed a custodial statement to be introduced into evidence. Appellant appeals his conviction solely on the grounds that the statement should not have been allowed into evidence and resulted in prejudice. We agree with the appellant that the admission of the statement was prejudicial error.

Appellant was taken into custody about 10:00 o’clock on July 9, 1980. He was informed of his rights under Miranda and given a breathalyzer test which indicated his blood alcohol content was .27. The officers admitted that appellant was drunk. Officers present at at least a part of the taking of appellant’s statement were Deputy Ellenburg, Sergeant Rosegrant of the state police and County Sheriff Garrison. Sometime during this period the appellant told Sheriff Garrison he wanted an attorney. Nevertheless, the statement was taken on the theory that appellant had changed his mind. A second statement was taken about 24 hours later on July 10,1980. The appellant had been held in confinement between the time the first and second statements were given. The second statement was given at the initiation of the officers and they stated he was again given his Miranda warnings.

The testimony indicated appellant did not read the rights forms but, nevertheless, signed them. This fact is illustrated by questions and answers put to Sergeant Rose-grant at the suppression hearing:

Question: Okay. Did you ever hand him the rights statements which have been referred to here as Plaintiff’s Exhibits 1 and 3 and ask him to read those to you?
Answer: Yes, sir.
Question: Did he read ‘em to you?
Answer: He did not read ‘em. He just signed ‘em.

The officer admitted he knew that the appellant could not read or write and that the extent of his educational ability was that he could sign his name. For some reason the officers seemed to know that appellant was not enrolled in a continuing education program. The officers described him as a drunkard and as not being very smart. The state hospital examination rated him with an IQ of about 82.

At the first suppression hearing it was admitted by the officers that the appellant’s blood count was .27 after he had given the statement. Although one or two officers testified they thought he knew what he was doing, others testified they thought not. The statement given on July 9, 1980, was suppressed at the hearing. Officer Ellenburg’s testimony is unclear as to whether he knew appellant had requested an attorney on the day before. Ellenburg was present when Rosegrant took the second statement, and was also present during at least a portion of the taking of the first statement. The following portion of cross-examination of Ellenburg is a part of the record:

Question: Well, had you been told that he said he wanted a lawyer?
Answer: By Sheriff Garrison.
Question: So having been told that he wanted a lawyer the second statement was taken?
Answer: Yes, sir.

Therefore, it is quite obvious at least one of the officers, who was present at the taking of both statements, knew the appellant had requested a lawyer the day before.

It is true that later Ellenburg and perhaps Rosegrant both stated they did not know about the request for the attorney. However, the record is most confusing and the best we have been able to determine is that the officers generally knew that he had requested an attorney on July 9 and the statement taken on July 10 was initiated at the request of the officers.

The only question to be considered by this court is whether the statement taken on July 10, 1980, should have been admitted into evidence. It is the duty of the state to prove by a preponderance of the evidence that a custodial statement was voluntarily given. Harvey v. State, 272 Ark. 19, 611 S.W. 2d 762 (1981). Also, in reviewing the voluntariness of a confession we make an independent determination based upon the totality of the circumstances and resolve all doubts in favor of safeguarding individual rights. We reverse the trial court under conditions where we are able to say that the holding was clearly erroneous. Giles v. State, 261 Ark. 413, 549 S.W. 2d 479 (1977).

When we consider the totality of the circumstances in this case we have to consider that the appellant was taken into custody when his alcohol test registered .27. The officers admitted he was drunk and, further, they called him a regular drunkard and had knowledge that he stayed drunk a large part of the time. They also knew he could neither read nor write except sign his name. He was locked in jail the entire time between his apprehension and the taking of his second statement. At least one of the officers admitted that the appellant stated he wanted an attorney. Nevertheless, the questioning continued. The two officers who took the second statement were present along with Sheriff Garrison on the first day when the appellant requested the services of attorney. Also, Sergeant Rosegrant states that immediately after he took the second statement the appellant stated "I think I need an attorney.” Rosegrant readily agreed with this statement.

We think the case of Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 379 (1981), is controlling in the present factual situation. In Edwards the United States Supreme Court held that the admission of a confession obtained from a defendant at custodial interrogation on the day following defendant’s request for counsel was violative of the Fourth and Fifth Amendment rights to have counsel present at custodial interrogation. Edwards holds that waiver of counsel must not only be voluntary but constitute a knowing and intelligent relinquishment or abandonment of a known right or privilege. Such question depends in each case upon the particular facts and circumstances surrounding the case, including the background, experience, conduct and other facts related to the accused. Johnson v. Zerbst, 304 U.S. 458 (1938). What Edwards did hold was that when an accused has once invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police initiated custodial interrogation even if he had subsequently been advised of his rights.

The court in Edwards further stated:

. . .an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges or conversations with the police.

This is really no different from the original holding in Miranda.

Therefore, under the totality of the circumstances existing in this case, we are unable to say that the state has met its burden of proof by showing through a preponderance of the evidence that the appellant’s statement of July 10, 1980, was voluntarily made. Therefore, the introduction of such statement constitutes prejudicial error, and the case must be reversed and remanded.

Reversed and remanded.


author: Robert H. Dudley, Justice. John I. Purtle, Justice,

text:
    ARKANSAS PUBLIC SERVICE COMMISSION v. ALLIED TELEPHONE COMPANY et al
    81-163
    625 S.W. 2d 515
    Supreme Court of Arkansas
    Opinion delivered December 21, 1981

      Robert Camp, for appellant.

      H. Edward Skinner; Mitchell, Williams & Selig, by: Michael O’Malley; D. D. Dupree and Gary Hartman; and Friday, Eldredge & Clark, by: Frederick S. Ursery, for appellees.
   Robert H. Dudley, Justice.

The Arkansas Public Service Commission is funded by fees which are assessed annually on the regulated utilities. The fees are based upon the company’s revenue and not upon the amount of time and money it takes to regulate each utility. The issue in this case of statutory interpretation is whether the interstate toll revenues of a telephone company should be included in the company’s “gross earnings” in computing the fee.

The Public Service Commission, and its predecessor Department of Public Utilities, in assessing the annual fee from 1935 to the date this series of appeals began, treated “gross earnings ... in this state” as not including the interstate toll earnings. On August 6, 1980, the commission issued an order reversing its interpretation of the statute and directing that interstate tolls be included. On appeal, the circuit court reversed and the commission now appeals to this court. We affirm the circuit court in its holding that a fee should not be assessed on interstate tolls.

Ark. Stat. Ann. § 73-249 (Repl. 1979) provides that an annual fee based upon “gross earnings” shall be collected from each utility. “Gross earnings” is defined by § 73-201 (k):

(k) The term “gross earnings,” when used in this Act shall include all amounts received, charged, or chargeable, for or on account of any public service furnished or supplied in this state by any public utility and shall include all gross income from all incidental, subordinate or subsidiary operations of such utility in this State; provided revenues from manufacture and sale of ice shall not be included. [Acts 1935, No. 324, § 1, p. 895; Pope’s Dig., § 2064; Acts 1967, No. 234, § 4, p. 443; 1973, No. 125, § 1, p. 443.]

The commission contends that the statutory language “all amounts received” manifestly requires that the fee be assessed on interstate tolls, while the appellees argue that the wording of the statute excludes interstate tolls because the fee is to be assessed only on amounts received from services “supplied in this state." The statute is ambiguous when applied to the facts of this case and that ambiguity is underscored by the fact that appellant commission has reversed its interpretation.

Since the wording of the statute is ambiguous, we seek to find the intent of the General Assembly by examining the statute with the aid of rules of statutory construction. One of those rules is “ . . . when the Legislature adopts certain language, or expressions, or terminology in an enactment, it adopts prior construction or constructions thereof.” American Workmen Insurance Co. v. Irvin, 194 Ark. 1149, 110 S.W. 2d 487 (1937).

On February 11, 1935, this court handed down its decision in Wiseman v. Arkansas Power & Light Co., 190 Ark. 351, 78 S.W. 2d 818 (1935) holding that a utility’s revenues from the manufacture and sale of ice were not subject to the fee. The opinion reasoned that the fee charged was intended to support the commission in the performance of its regulatory jurisdiction and since the manufacture and sale of ice were not regulated no fee should be imposed. In addition, by this time, Congress had passed the Federal Communication Act of 1934,47 U.S.C.A. § 151, et seq, which granted the Federal Communications Commission jurisdiction over interstate communications by wire and radio. It was with this background and knowledge, that the General Assembly, on April 2, 1935, passed the act which is now before us and yet nothing is said about fees being assessed on interstate revenues. From this we may infer that the General Assembly intended for the regulatory functions of the commission to be supported by a fee based on revenues generated from intrastate services regulated by the commission exactly as had been done in the past. This inference is augmented by the language of the statute which expressly provides that revenues from the sale of ice shall not be included.

In 1945 the General Assembly enacted a provision requiring the commission to give the utilities an annual statement of the fees due. Ark. Stat. Ann. § 73-249. The General Assembly is presumed to have known that the commission interpreted the statute defining gross revenues as including only intrastate tolls in providing previous statements of fees and yet no change was made in the definition of gross revenues. The known interpretation will be presumed to have been adopted by the General Assembly. Shivers v. Moon Distributors, Inc., 223 Ark. 371, 265 S.W. 2d 947 (1954).

From 1935 until the present litigation, the act was interpreted by the commission, and its predecessor agency, as not including interstate revenues. An administrative interpretation of a statute is not conclusive, but it is a factor to be considered. As stated in Walnut Grove School District No. 6 v. County Board of Education, 204 Ark. 354, 162 S.W. 2d 64 (1942):

“. . . As a general rule executive and administrative officers will be called upon to interpret certain statutes long before the courts may have an occasion to construe them. Inasmuch as the interpretation of statutes is a judicial function, naturally the construction placed upon a statute by an executive or administrative official will not be binding upon the court. Yet where a certain contemporaneous construction has been placed upon an ambiguous statute by the executive or administrative officers, who are charged with executing the statute, and especially if such construction has been observed and acted upon for a long period of time, and generally or uniformly acquiesced in, it will not be disregarded by the courts, except for the most satisfactory, cogent or impelling reasons. In other words, the administrative construction generally should be clearly wrong before it is overturned. Such a construction, commonly referred to as practical construction, although not controlling, is nevertheless entitled to considerable weight. It is highly persuasive.” Among the numerous cases cited in support of this statement of the law is our own case of Moore v. Tillman, 170 Ark. 895, 282 S.W. 9.

For these reasons we interpret the ambiguous statute to apply to intrastate tolls only.

Affirmed.

Hays, J., not participating.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I have no difference with the rules of law as expressed in the majority opinion. However, I differ with the majority on the interpretation of the words expressed in the act. It is agreed that the Public Service Commission commenced collecting on the gross earnings received by these utilities in 1978. However, the statute has not been changed since 1945. This act was an attempt by the legislature to make the public utilities pay for the costs of running the Public Service Commission. In doing so they enacted what we cite as Ark. Stat. Ann. § 73-249 (Repl. 1979), which provides that an annual fee up to 2/5 of 1% could be assessed against these utilities provided the fee was based on the gross earnings. Section (k) of Ark. Stat. Ann. § 73-201 (Act 324 of 1935, as amended) defines the term “gross earnings” to include “ . . . all amounts received, charged, or chargeable, for or on account of any public service furnished or supplied in this state by any public utility and shall include all gross income from all incidental, subordinate or subsidiary operations ...

The words expressed by the legislature in this act seem plain and clear. If there is no need to use a crutch in determining the meaning of the words used by the legislature, then such should not be done. The primary rule in the construction of statutes is to ascertain and give effect to the intentions of the legislature. McDonald v. Wasson, 188 Ark. 782, 67 S.W. 2d 722 (1934). It is also a cardinal rule that legislative intent is to be first determined from the language used in the statute. Ark. State Highway Comm. v. Mabry, 229 Ark. 261, 315 S.W. 2d 900 (1958). Other interpretations should only be considered if the intent of the legislature cannot be determined from the very words of the statute.

I have no hesitancy in saying that all sums collected by public utilities in the state of Arkansas are a part of their gross earnings. The fact that a telephone call is placed from Little Rock to New York does not prevent the charges, which are collected in Little Rock, from being a part of the gross earnings of the corporation. Likewise, if a call were placed in New York to Little Rock, the collection would be made in New York and would thus be a part of the gross earnings collected by the utility in New York.

The argument that the legislature knew of the previous interpretation of this statute by the Public Service Commission is of little consequence. The legislature has also known of the present policy since 1978 and has not done anything about it. In any event, this is unimportant, as are other rules of construction, as the plain language of the statute needs nothing extraneous to explain it.


author: Robert H. Dudley, Justice.

text:
    CENTURY THEATERS, INC., d/b/a CENTURY STEREO THEATER, an Arkansas Corporation v. STATE of Arkansas
    CR 81-81
    625 S.W. 2d 511
    Supreme Court of Arkansas
    Opinion delivered December 21, 1981

      John Wesley Hall, Jr. and R. W. Laster, for appellant.

      Steve Clark, Atty. Gen., by: Victra L. Fewell, Asst. Atty. Gen., for appellee.
   Robert H. Dudley, Justice.

This appeal is from a conviction of promoting obscene material. Ark. Stat. Ann. § 41-3503 (Repl. 1977). Appellant Century Theaters operates an establishment in Little Rock euphemistically labeled “adult” entertainment. As a part of the fare “peepshows” or short films are exhibited in a series of one-person booths. The films, of seven to ten minutes’ duration, are on a continuous reel. To view one of them the customer places a quarter in a coin slot and begins watching from wherever it happens to start, which probably is not at the beginning. On some occasions titles give the name of the film while on other occasions they will be labeled “Two men/one woman” or “One man/one woman” and at other times they have no titles.

On April 16, 1980, Detectives Howell and McGuire, members of the vice squad, went to the Century Theater to view films. They saw a number of films and thought that four were obscene. Both detectives looked at the film in booth 3 while McGuire alone viewed the films in booths 5,9 and 10. They returned on the morning of April 18 but only McGuire saw all four films. They then went before a circuit judge to obtain a search warrant. Detective McGuire, after describing the building and its location, testified that about one hour earlier, the film in booth 3 showed a female performing oral sex upon a male and penetration was shown. He testified that the film showing in booth 5 reflected two females performing oral sex, each upon the other, with actual penetration being shown. His testimony was that the film in booth 9 showed four male homosexuals engaged in sexual activity, all at the same time, with actual penetration. He testified that the film in booth 10 showed two females and one male involved in oral sex acts with actual penetration. Detective Howell testified that he saw the film in booth 3 and it showed a male and female engage first in sexual intercourse and then in oral sex with penetration being shown on both occasions. The search warrant was then issued to authorize the search of booths 3, 5,9 and 10 of the described building to seize “motion picture films depicting hardcord sexual contact including actual penetration.” The last sentence provided “The executing officers must seize only films which they have previously viewed and described in their recorded testimony.”

After obtaining the warrant the two detectives returned to appellant’s building, identified themselves to an employee, and gave him a copy of the warrant. The three of them went to the booths where the employee removed the films and handed them to the detectives. Later, they again viewed them and placed them in storage. By the time of trial Detective McGuire was deceased and Detective Howell could testify only about the one film he had seen.

The appellant questions whether (1) the testimony of probable cause was adequate, (2) the warrant was properly executed, (3) the warrant allowed seizure of protected materials and (4) a juror should have been excused for cause.

The first issue is whether probable cause was adequately shown for the issuance of the warrant. Rule 13.1 of the Arkansas Rules of Criminal Procedure Vol. 4A (Repl. 1977) sets out the requirements for the issuance of a search warrant. Section (b) is relevant to the point at issue —

The application for a search warrant shall describe with particularity the persons or places to be searched and the persons or things to be seized, and shall be supported by one (1) or more affidavits or recorded testimony under oath before a judicial officer particularly setting forth the facts and circumstances tending to show that such persons or things are in the places, or the things are in possession of the person to be searched

The constitutional issue is how the Fourth Amendment should be construed and applied when the search and seizure involves materials which are presumptively under the protection of the First Amendment. The Supreme Court of the United States in Zurcher v. Stanford Daily, 436 U.S. 547 at 564 (1978) sets out the rationale and the ruling as follows:

It is true that the struggle from which the Fourth Amendment emerged “is largely a history of conflict between the Crown and the press,” Stanford v. Texas, 379 U.S. 476, 482 (1965), and that in issuing warrants and determining the reasonableness of a search, state and federal magistrates should be aware that “unrestricted power of search and seizure could also be an instrument for stifling liberty of expression.” Marcus v. Search Warrant, 367 U.S. 717, 729 (1961). Where the materials sought to be seized may be protected by the First Amendment, the requirements of the Fourth Amendment must be applied with “scrupulous exactitude.” Standord v. Texas, supra, at 485. “A seizure reasonable as to one type of material in one setting may be unreasonable in a different setting or with respect to another kind of material.” Roaden v. Kentucky, 413 U.S. 496, 501 (1973). Hence, in Stanford v. Texas, the Court invalidated a warrant authorizing the search of a private home for all books, records, and other materials relating to the Communist Party, on the ground that whether or not the warrant would have been sufficient in other contexts, it authorized the searchers to rummage among and make judgments about books and papers and was the functional equivalent of a general warrant, one of the principal targets of the Fourth Amendment. Where presumptively protected materials are sought to be seized, the warrant requirement should be administered to leave as little as possible to the discretion or whim of the officer in the field. Similarly, where seizure is sought of allegedly obscene materials, the judgment of the arresting officer alone is insufficient to justify issuance of a search warrant or a seizure without a warrant incident to arrest. The procedure for determining probable cause must afford an opportunity for the judicial officer to “focus search - ingly on the question of obscenity.” Marcus v. Search Warrant, supra, at 732; A Quantity of Books v. Kansas, 378 U.S. 205, 210 (1964); Lee Art Theatre, Inc. v. Virginia, 392 U.S. 636, 637 (1968); Roaden v. Kentucky, supra, at 502; Heller v. New York, 413 U.S. 483, 489 (1973).

Hence, at the time the warrant was requested the judge had to “focus searchingly” on the question of whether there was probable cause to believe that a violation of the obscenity laws had occurred. However, a showing of “probable cause requires much less evidence than a finding of guilt requires . . . ” United States v. Beck, 431 F. 2d 536 at 538 (5th Cir. 1970). “In dealing with probable cause ... as the very name implies, we deal with probabilities.” Brinegar v. United States, 338 U.S. 160 at 175 (1949).

In Miller v. California, 413 U.S. 15 (1973), the Supreme Court reaffirmed the principle established in Roth v. United States, 354 U.S. 476 (1957) that the First Amendment does not protect obscene material and announced “basic guidelines for the trier of fact” on the issue of obscenity. The court also gave guidance to the states for statutory regulation of obscene materials. Our General Assembly relied on that language when enacting a part of Ark. Stat. Ann. § 41-3502 (Repl. 1977).

(6) “Obscene material” means that material which:
(a) Depicts or describes in a patently offensive manner nudity, sadomasochistic abuse, sexual excitement, sexual conduct, or hard-core sexual conduct;
(b) Taken as a whole, appeals to the prurient interest of the average person, applying contemporary statewide standards; and
(c) Taken as a whole, lacks serious literary, artistic, political, or scientific value.
(3) “Hard-core sexual conduct” means patently offensive acts, exhibitions, representations, depictions, or descriptions of:
(a) Intrusions, however slight, actual or simulated, by any object, any part of an animal’s body, or any part of a person’s body into the genital or anal openings of any person’s body; or
(b) Cunnilingus, fellatio, anilingus, bestiality, lewd exhibition of genitals, or excretory functions, actual or simulated.

The testimony of Detectives McGuire and Howell in relation to the search warrant meets the statutory test of “hard-core sexual conduct” as a depiction of “intrusions... by any part of a person’s body into the genital... openings of any person’s body,” and specifically includes “cunnilingus” and “fellatio.” We affirm the holding of the trial court that their testimony was sufficient to meet the statutory definition of “hard-core sexual conduct.”

In addition, in order to meet the complete test of “obscene material” the judge was obligated to make a preliminary determination, pursuant to § 41-3502 (6) (b) and (c), that the films of hardcore sexual conduct “taken as a whole” appealed to the prurient interest of the average person, applying contemporary statewide standards, and that they lacked serious literary, artistic, political, or scientific value.

The judge was entitled to use his common sense. He knew that the place to be searched was a theater and that movies were being shown to patrons in individual booths. Ordinary intelligence would dictate this was one method of showing hardcore pornographic movies. He knew, from the description of the films, and as a member of the community that by statewide standards the films would appeal to the prurient interests of the average person. The testimony describing the films created a probability that no literary, artistic, political or scientific values were shown. We affirm the holding of the trial court in denying the motion to suppress. The judge who issued the warrant decided for himself the persuasiveness of the facts to show probable cause that obscenity laws were being violated.

Appellant next contends that the search warrant should be suppressed for the detectives’ failure to adhere to the terms of the warrant which provided that “The officers executing the warrant must seize only films which they have previously viewed and described in their recorded testimony.” This sentence is synonymous with the rest of the warrant which authorized the officers to seize only the films in booths 3, 5, 9 and 10. The testimony is uncontradicted that the films were taken only from these four booths and there is no failure to adhere to the terms of the warrant during the search.

Appellant argues that the films from booths 5, 9 and 10 were erroneously admitted into evidence because a proper foundation was not laid. It contends that only Detective McGuire viewed these films before seizure and therefore he was the only person who could have laid a proper foundation. We affirm the trial court’s holding that the facts, taken as a whole, satisfy the conditions precedent to admissibility pursuant to Rule 901, Ark. Unif. Rules of Evid., Ark. Stat. Ann. § 28-1001 (Repl. 1979).

Detective Howell testified that McGuire viewed these three films on the 16th and again on the 18th. He testified without objection at the suppression hearing that McGuire told him the pictures he saw on the 18th were the same ones he had seen on the 16th. The testimony of now deceased McGuire to secure the search warrant was given about one hour after viewing the films. That testimony describes the differing hardcore pornographic acts depicted in each of the films and it gives the number of the booth in which each film was being shown. The seizure and the final viewing were described by Detective Howell as follows:

Q. Would you tell the Court what you did then.
A. We entered the theater and the man working the desk, we advised him — identified ourselves as to who we were, gave him a copy of the search and seizure warrant we obtained that morning and told him specifically which films we wanted. We went with him to the booths. He went in the booths and took the film out and gave them to us.
Q. You did not view the film before you took possession of it?
A. Not at that time, no, sir.
Q. And did you view them later?
A. Yes, sir, we did.
Q. And how much later?
A. I don’t recall whether it was the same day or the next day. They were stored — The films were stored in the Little Rock Property Office.

The appellant admitted that the films shown in evidence were the ones seized. We affirm the trial court in ruling that there was sufficient evidence to support the claim that the films are the ones described in the search warrant.

Appellant contends that the phrase “hard-core sexual contact” found in the warrant rather than the statutory “hard-core sexual conduct” made the warrant general and thus authorized the seizure of protected materials. The rationale of this argument is that the words “sexual conduct” in an earlier statute were declared to be over-broad in Wild Cinemas of Little Rock, Inc. v. Bentley, 499 F. Supp. 655 (E. D. Ark. 1980) and by comparison, this warrant should be declared void. We reject that contention because the term in the search warrant also contained the following qualifying language: “ . . . including actual penetration.” This qualifying language coupled with the term used make clear that the warrant was not a general warrant which included constitutionally protected materials.

The final point for reversal urged by appellant is that the trial court erred in not granting its motion to challenge for cause a prospective juror. However, the record does not reflect that appellant exercised any peremptory challenges or that it was forced to accept a juror against its wishes. We find no reversible error when the record fails to disclose that an undesirable juror was forced upon an objecting party. Conley v. State, 270 Ark. 886, 607 S.W. 2d 328 (1980).

Affirmed.


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

text:
    Carlyle SCHOCK v. Dr. James THOMAS, Commissioner, Mental Health Services, Arkansas State Hospital
    81-92
    625 S.W. 2d 521
    Supreme Court of Arkansas
    Opinion delivered December 21, 1981

      Griffin J. Stockley and Marsha Yowell, Central Arkansas Legal Services, for appellant.

      Steve Clark, Atty. Gen., by: Nelwyn L. Davis, Asst. Atty. Gen., for appellee.
   Steele Hays, Justice.

Petitioner seeks his release from the Arkansas State Hospital by writ of habeas corpus from the Pulaski Chancery Court. Having been found incapable of assisting in his own defense, he was committed by the Union Circuit Court on July 29, 1980, and at the same time acquitted of charges of sexual abuse because of mental disease. The commitment found petitioner to be a danger to himself or to other persons or property.

Appellant’s petition for habeas corpus was filed on March 13, 1981, some eight months after his commitment, the chancellor denied the petition, holding that the order of commitment was regular on its face and the circuit court had jurisdiction pursuant to Ark. Stat. Ann. §§ 41-601 through 41-607 (Repl. 1977). Appellant argues three points for reversal: (I) The order of commitment by the Union Circuit Court violates Article 7, § 34, of the Arkansas Constitution (Amendment 24); (II) appellant’s confinement is a denial of due process guaranteed by the Fourteenth Amendment to the United States Constitution and Article 2, § 8, of the Arkansas Constitution; and (III) is a denial of the equal protection clause of the Fourteenth Amendment.

I

We have dealt with the exact procedural issue presented by this case in three previous instances: Baker v. Young, 121 Ark. 537, 182 S.W. 239 (1915); Stover v. Hamilton, 270 Ark. 310, 604 S.W. 2d 934 (1980); and quite recently in Mannix v. State, 273 Ark. 492, 621 S.W. 2d 222 (1981).

In Baker, we refused a writ of habeas corpus to a patient confined in the State Hospital by an order of commitment from the Franklin Circuit Court. The patient, Baker, had been tried earlier for murder and acquitted on a plea of insanity. The chancellor sustained the state’s demurrer to the petition over Baker’s contention that the commitment order was void because the circuit court had no jurisdiction under Article 7, § 34, of the Arkansas Constitution, which gave probate courts “exclusive original jurisdiction in matters relative to . . . persons of unsound mind and their estates. ...” In Baker the court examined existing criminal commitment statutes dealing with commitment to the State Hospital by circuit judges of persons who had either been acquitted of criminal charges because of insanity or found to be incapable of assisting in their defense. Section 4206 of Kirby’s Digest provided that persons so committed by circuit judges should be kept until “restored to reason,” and section 4207 provided that when restored they would be remanded to the sheriff of the county where such proceedings were pending to be held until admitted to bail or otherwise discharged. The court said:

The jurisdiction of the circuit courts to pass on the question of the sanity of one under indictment for crime arises as a necessary incident to the enforcement of the criminal laws. There is not the slightest reason to believe the framers of the constitution meant, by the language giving exclusive jurisdiction to probate courts over the persons and estates of persons of unsound mind, to take away the power of the circuit courts to determine the question of the sanity of a person before that court on a charge for crime. It is equally evident that the lawmakers who framed the Act of 1893 had no intention of invading the jurisdiction of the probate court, but intended to make the provision for a certificate of the circuit judge, where there has been an acquittal on a plea of insanity, merely a means for the admission to the asylum of a person charged with crime. That, too, follows as merely an incident to the criminal jurisdiction of the circuit court. It does not constitute an adjudication of the present insanity of the person charged, but merely prima facie evidence of that fact upon which the accused may be held until the question of his sanity can be adjudicated in a court exercising exclusive jurisdiction over such matters. ... In other words, the [commitment] of the circuit judge only makes a prima facie case until there is an adjudication by the probate court, which can be invoked at any time.

The court went on to say that the commitment procedures by circuit judges were not an invasion of the exclusive jurisdiction conferred on probate courts and that the remedy of a person confined under such orders was to apply to the probate court for an adjudication of sanity and to be released if found sane. We regard that reasoning as sound, for there is no conceivable way that circuit courts can be deprived altogether of jurisdiction to deal with insanity matters where they are incidental to criminal charges. The intent behind Article 7, Section 34 cannot be construed to alter the inherent power of the law courts to deal with the defense of insanity.

Sixty-five years later, in Stover v. Hamilton, supra, we were confronted with virtually the same issue, the only differences being, first, that in Stover the defendant had not been tried but, rather, acquitted by the circuit judge without trial (pursuant to Ark. Stat. Ann. § 41-609) on the strength of a clear indication of insanity by the State Hospital report and, secondly, the statutes were more modern but fundamentally identical to those considered in Baker. At first glance, Stover and Baker appear to reach opposite results. In Baker we affirmed the chancellor’s denial of a writ of habeas corpus, whereas in Stover we reversed, with three justices dissenting. But the difference is more of form than of substance, for effectually the cases are not inconsistent: both agree that the circuit court is not lacking in jurisdiction to commit in the first instance an individual who has been: (1) tried and found not guilty by reason of insanity, (2) acquitted without trial because of mental illness, or (3) found unable by reason of mental illness to assist in his defense but without dismissal of the charges. The same result was reached in Beard v. State, 266 Ark. 250, 583 S. W. 2d 60 (1979), although the issue of jurisdiction of the circuit court was not raised. Both Stover and Baker hold that aside from the initial circuit court commitment, jurisdiction belongs to probate court and that either the State Hospital or the individual can initiate civil proceedings to have his sanity adjudged. In either case, jurisdiction lies in the probate court. The only factual distinction between Stover and the case at bar is that Stover’s petition for habeas corpus was filed more than a year after his commitment, whereas here only eight months had elapsed.

Stover goes a step farther than Baker and states that under Jackson v. Indiana, 406 U.S. 715 (1972), an individual cannot be held longer than one year under an initial commitment from circuit court and we conclude that it was on that basis that the majority in Stover reversed the chancellor’s denial of habeas corpus. It follows that if the individual has not had an adjudication of his sanity in probate court on his own petition or upon proceedings initiated by the State Hospital within one year from the original commitment he is entitled to be released in accordance with the notice requirements of § 41-613, or, if need be, by a writ of habeas corpus.

In Baker, the individual was instructed to apply to probate court for an adjudication of his sanity, whereas in Stover the case was remanded to the Pulaski Chancery Court with directions to order the Director of the State Hospital to determine whether petitioner was a danger to himself or to the person or property of others, and if so, to institute civil commitment proceedings in probate court pursuant to § 59-408, otherwise to notify the Franklin Circuit Court of its intention to release him. That same procedure is appropriate in this case and we so hold with the added proviso that barring either action within a reasonable time the chancellor should issue a writ of habeas corpus.

The State has asked, as it did in Mannix v. State, that we overrule the Stover decision. But we declined that course less than three months ago in considering the issue in Mannix and we remain unwilling to take that step, notwithstanding the problems that arise. But we believe Baker and Stover do not conflict in substance, only in procedure in the method of dealing with habeas corpus petitions — Baker following the traditional view of our cases that if the court has jurisdiction and the order is regular on its face, then habeas corpus should not issue. Mitchell v. State, 233 Ark. 578, 346 S.W. 2d 201 (1961); Ex Parte O’Neal, 191 Ark. 696, 87 S.W. 2d 401 (1935). By that standard, Stover by its own language might j ust as appropriately have denied the writ and still remanded the case to the chancellor with the instructions it gave. Too, Stover, the petitioner, had been confined in excess of a year and in holding that a writ of habeas corpus should have issued, the majority may have been influenced by a construction of Jackson v. Indiana, supra, as mandating civil commitment proceedings within one year from the original criminal commitment, concluding that circuit court jurisdiction ended with the lapse of one year. However, no specific time limit is stated in Jackson, only that the commitment cannot be indefinite. We conclude that the circuit court has jurisdiction at the initial stage to make a valid commitment to the State Hospital of persons found not guilty by reason of insanity or to be incapable of assisting in their defense, but that subsequent proceedings must be under the jurisdiction of probate courts and when no proceedings are commenced within one year circuit court jurisdiction ends.

II

Appellant argues that his confinement under the order of commitment of July 29, 1980, is a denial of due process of law as guaranteed by the Fourteenth Amendment of the United States Constitution and Article 2, § 8, of the Arkansas Constitution. He contends that Stover found an unconstitutional application of the criminal commitment statutes, §§41-612 and 41-613. But the opinion in Stover did not consider constitutional questions, it plainly stated that constitutionality was not challenged and the deprivation of due process implied by Stover and condemned in Jackson v. Indiana lies not in the commitment per se, but in an indefinite commitment dependent on restoration of sanity. Stover remedied that flaw by requiring either civil commitment proceedings or outright release within a reasonable time, not longer than a year.

In Jackson the United States Supreme Court found that Indiana’s indefinite commitment of a criminal defendant solely on account of his incompetency to stand trial failed to square with due process. That conclusion was affected by several distinguishing elements: Jackson had been confined for 3‘4 years under a commitment that he be held until found to be sane, coupled with strong medical evidence that he would never be considered “sane.” But in Jackson the court was invalidating an indefinite commitment based on incompetency alone, and recognized that where the commitment is based on a finding that the individual is dangerous, then due process is not impaired. Greenwood v. United States, 350 U.S. 366 (1955). The court took note that the cases following Greenwood have imposed a “rule of reasonableness ” on federal criminal commitment statutes requiring that one committed thereunder can be held only for a reasonable period of time if the chances of improvement are slight, while expressly excluding cases in which there is a finding of dangerousness. Similarly, Stover pointed out that confinement was justifiable because of a mental illness which rendered him dangerous, rather than because of pending criminal charges. For other cases holding that a commitment based on a finding of dangerousness is not a denial of due process, see Powell v. Florida, 579 F. 2d 324 (1978), Bolton v. Harris, 395 F. 2d 642 (1968); and Specht v. Patterson, 386 U.S. 605 (1967).

Before leaving the issue of due process, it was argued orally, though not in the briefs, that no evidence was presented to the circuit court that appellant was a danger to himself or to others. Because we are remanding the case to allow for further proceedings on appellant’s present mental state, we do not reach the issue of whether this point is properly before us, except to note that an insanity acquittee is entitled to a hearing on the issue of his mental state at the time of commitment, to be represented by counsel and to confront and cross-examine witnesses. Anything less is a denial of due process. The fact that he interposes insanity as a defense, or that the jury finds him not guilty by reason of insanity, does not alter that fundamental right. Powell v. Florida, supra.

Ill

Appellant’s remaining assignment of error is that his confinement is a denial of the equal protection clause of the Fourteenth Amendment to the Constitution of the United States. The argument is that appellant’s commitment pursuant to Ark. Stat. Ann. § 41-612 (Repl. 1977) is a denial of equal protection in that he was never tried and has no criminal charges pending against him, whereas other persons in that class are committed through civil involuntary commitment statutes. Ark. Stat. Ann. §§ 59-1401 et seq. (Repl. 1977). Appellant points to other differences: that under § 41-612 the burden of proof is less onerous than under § 59-1401, being simply a preponderance of the evidence on the one hand as opposed to clear and convincing evidence on the other; that “risk of danger” is not defined under the criminal commitment proceedings, whereas under civil commitment proceedings the terms “homocidal, suicidal or gravely disabled” are defined; that danger to property is of no concern under the civil statutes; that patients under civil commitment are guaranteed 28 patients’ rights, including access to money and to telephone for confidential calls, daily visitations, to send and receive unopened mail, to have private religious visits, as well as other rights, none of which are guaranteed to those committed under § 41-612. In short, appellant insists that, like Jackson, he has been subjected to a more lenient commitment standard, is subject to a custodial disparity and is held to a more stringent release standard that those generally applied to others not committed under criminal statutes.

The issue, however, is not whether there are differences, but whether there is a rational basis for such differences. The equal protection clause does not require that all persons be dealt with identically; it only requires that classifications rest on real and not on feigned differences, that the distinctions have some relevance to the purpose for which the classification is made, and that the different treatment be not so disparate as to be arbitrary. United States v. Ecker, 543 F. 2d 178 (1976); Walters v. City of St. Louis, 347 U.S. 231 (1954); Skinner v. Oklahoma, 316 U.S. 535 (1942).

Appellant argues that no distinction can be drawn between those who, like appellant, have been acquitted of a crime and those who have never been charged with a crime. But an acquittal due to an inability to assist in one’s defense does not carry an inference of exoneration and does not imply that no offense has occurred. When an accused is sufficiently linked with conduct that sustains a finding of dangerousness, his commitment by a circuit court in connection with criminal charges provides a rational distinction from the commitment procedures followed in other cases. Hence, the difference is not arbitrary and not prohibited by the Fourteenth Amendment. The answer entails a balancing of individual rights against societal rights and in doing so it cannot be ignored that conduct harmful to society has occurred. A literal interpretation of the words, “it is as if no crime has been committed,” was not intended by Stover. Such a conclusion would give undue weight to appellant’s right to liberty at the expense of society’s right to be secure. To equate an acquittal because of mental illness with a presumptive right to identical treatment with those whose mental illness produces no criminal manifestations fails to give due regard to the protection of society.

Appellant cites us to Baxstrom v. Herold, 383 U.S. 107 (1966). Baxstrom had completed a 2A year sentence for second degree assault but on the day he was scheduled to be released he was transferred to the State Hospital and denied a review de novo by a jury of his adjudication of insanity guaranteed under the laws of New York. The Supreme Court held that where the state had provided a substantial review procedure in the form of a jury trial in insanity cases and had made it generally available it could not arbitrarily withhold it from some. That holding is sound, but has little bearing on this case. Our law makes no provision for jury trials in insanity cases and whether the sanity hearing is conducted by circuit court or probate court is constitutionally inconsequential.

It is argued that the statute followed by the circuit courts makes the adjudication dependent on whether the individual presents “a danger to himself or to the persons or property of others” while the probate courts are guided by whether the individual is “homicidal, suicidal or gravely ill,” a difference we regard as semantic rather than substantive. In either case the judge must find the individual represents a serious risk of harm to himself or to society and no significant disparity exists, certainly not an arbitrary one. Moreover, whether the proceedings are labeled “civil” or “criminal” is immaterial (see Specht v. Patterson, supra) and they may be different so long as they are not arbitrarily so. Bolton v. Harris, supra.

Similarly, the fact that the burden of proof under the criminal statutes is by a preponderance of the evidence test, whereas under the civil statutes by a clear and convincing evidence test, is not so substantial as to render the one a violation of the equal protection clause. Bolton v. Harris, supra; United States v. Wright, 511 F. 2d 1311 (1975).

Appellant also argues that there are custodial differences between the two statutes and that greater privileges are afforded those civilly committed. The issue is not really before us as there is no evidence as to how the statutes are applied, but we will observe that the law recognizes the necessity of some dissimilarities in custodial methods and certainly the nature of the illness and the propensity for harm of each individual must have some correlation to the strictness of the custodial methods. Cameron v. Mullen, 387 F. 2d 193 (1967); Baxstrom v. Herold, supra. It would be folly to argue that all individuals committed to the State Hospital are entitled to have equal access to money, private mail, confidential telephone conversations and daily visitors, irrespective of their history and proven tendencies.

We hold to the view that where an individual’s propensity to inflict harmful consequences on others by way of criminal conduct is actively demonstrated and proven, that provides the relevant fact which makes a distinction under the law rational. Walters v. City of St. Louis, supra. Appellee has cited numerous cases recognizing as reasonable the distinction classifying mentally ill persons as either insane or dangerously insane and we find those cases persuasive. Warren v. Harvey, 632 F. 2d 295 (2d Cir. 1980); Powell v. Florida, 579 F. 2d 324 (5th Cir. 1978); United States v. Ecker, 543 F. 2d 178 (D.C. Cir. 1976); State v. Valentine, 612 P. 2d 117 (Hawaii App. 1980); and cases noted in 50 ALR 3d 144. We find no violation of the equal protection clause.

The case is remanded to the chancellor and in view of the fact that appellant has now been confined more than a year, the chancellor is instructed to order the Director of the State Hospital, within a reasonable time, not to exceed 45 days, to initiate proceedings in the Probate Court of Union County if he considers appellant a present danger to himself or others, whereupon the jurisdiction of the Pulaski Chancery Court in this case terminates. If the director fails to act in that time and fails to release appellant, the chancellor should issue a writ of habeas corpus.

Adkisson, C.J., and Hickman, J., dissent.

Darrell Hickman, Justice,

dissenting. I adhere to my view in Stover v. Hamilton, 270 Ark. 310, 604 S.W. 2d 934 (1980) and Mannix v. State, 273 Ark. 492, 621 S.W. 2d 222 (1981) . I am amazed that the court still fails to find inconsistent statutes unconstitutional. What the court has done in the Stover and Mannix cases and in this case has created its own remedy contrary to one which is permitted by Ark. Stat. Ann. § 41-601, etseq. How are the parties to know how to proceed and how is the General Assembly to know how to deal with this problem? In my judgment a mistake was made in Stover, elevated to the form of a precedent in Mannix, which the majority cannot bring itself to deal with. I respectfully dissent as I have in the past.

Adkisson, C.J., joins.

      Kirby’s Digest, §§ 4204, 4206 and 4207, enacted in 1893.

      Ark. Stat. Ann. §§ 41-601 et seq., enacted in 1975.

      Both sides of the issue are discussed in depth in “Incompetency,” 81 Harv. L. Rev. 454, and “Commitment Following Acquittal by Reason of Insanity and Equal Protection of the Laws,” 116 Pa. L. Rev. 924.


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

text:
    Michael Earl ABRAHAM v. STATE of Arkansas
    CR 81-90
    625 S.W. 2d 518
    Supreme Court of Arkansas
    Opinion delivered December 21, 1981

      William R. Simpson, Jr., Public Defender, by: Deborah R. Sailings, Deputy Public Defender, for appellant.

      Steve Clark, Atty. Gen. by: Matthew Wood Fleming, Asst. Atty. Gen., for appellee.
   Steele Hays, Justice.

Appellant was convicted of aggravated robbery and because of six previous felonies his sentence was enhanced to life imprisonment and a fine of $15,000.00. He argues on appeal that the trial court erred in refusing to grant defense motions for a mistrial because of remarks during the State’s closing argument. We find no abuse of discretion.

The State’s case rested largely on the testimony of two clerks who were working in a pharmacy where the robbery occurred. They said appellant and another man came into the store with pistols demanding money and drugs. The guns were pointed “more or less” toward the clerks, who were told they would not be hurt if they followed instructions, otherwise, “there would be a killing.”

During the guilt phase of the trial the prosecutor told the jury (T. 184):

But I’ll submit to you . . . there is no doubt in those ladies’ minds that Michael Abraham is one of the men who was pointing the guns at them and threatening their lives on this particular day. I’ll submit to you that if anybody points a gun at you and makes you deathly afraid and is with you for a period of time from 5 to 15 minutes and you not knowing whether you’re going to live or die. You don’t know whether—you know they are robbing. You know they are desperate individuals or they wouldn’t be involved in an aggravated robbery at that time. You know they have weapons and the capability of taking your life. . . .

Defense counsel moved immediately for a mistrial. Apparently, no ruling was made and the prosecutor continued (T. 185):

Now I’ll submit to you it’s fortunate, very fortunate, that our witnesses are here today to testify... I have no idea what he intended to do with the drugs when they got there.

Counsel again moved for a mistrial and again there was no ruling. The motion was renewed a few moments later when the prosecutor stated that the appellant was guilty of “a terrible crime which could have been more terrible.” The trial judge denied the motion but indicated his readiness to admonish the jury to disregard the remarks, which defense counsel declined. The trial judge observed that there was testimony that the appellant took drugs and money, that he had a pistol and had threatened to kill the witnesses if they did not comply.

In light of the testimony the argument did not exceed permissible limits. Some leeway must be given in opening and closing remarks and counsel are free to argue every plausible inference which can be drawn from the testimony. McCroskey v. State, 271 Ark. 207, 608 S.W. 2d 7 (1980). The jury is not unaware of the difference between argument and fact and is usually instructed that opening statements and closing arguments are not to be regarded as evidence. We believe those instructions and admonitions generally suffice, except where the comments are patently inflammatory and prejudicial, or where improper tactics are so repetitious that fairness is overcome. The remarks in this case are not of that stripe.

Appellant cites Combs v. State, 270 Ark. 496, 606 S.W. 2d 61 (1980), where similar remarks were said to be inflammatory and prej udicial, although cured by a specific admonition of the trial judge. But the similarity is only superficial. Combs was charged with possession of a firearm by a felon. In closing argument the prosecutor told the jury that “[b]ut for the grace of God and the quick thinking of [Officer Howard] you might be considering today two counts of capital felony murder against this man.” These comments were labeled a “significant impropriety” by Justice Stroud, writing in Combs. But the distinction lies in the evidence, because the only testimony was that Combs, who was armed, “started to move toward his pocket” but was prevented from doing so by Officer Howard. Hence, it was improper to argue that Combs might have committed two capital felony murders, the inference being too conjectural. But here the appellant’s weapon was in his hand and pointed toward the witnesses, who were told they would be killed if they disobeyed. The prosecutor’s remarks were not an unreasonable inference in the light of their testimony. Furthermore, in Combs we held the prejudicial effect of the comments was cured by the trial court’s admonition to the jury to disregard them and that same admonition was available to the appellant in this case. One cannot, as a general rule, seek a reversal in reliance on the absence of an admonition where he either fails to make a request or rejects the trial judge’s offer to give one.

It is also urged that the court should have granted appellant’s motion for a mistrial during the penalty phase of the trial. Referring to appellant’s sixty years of prison sentences since 1971, the prosecutor said, “and apparently since he’s out, has done all right, been paroled. ...”

Appellant relies on Andrews v. State, 251 Ark. 279, 472 S.W. 2d 86 (1971), where we said that trial judges should refrain from explaining parole laws to juries. But for many years our law permitted the practice (see Glover v. State, 211 Ark. 1002, 204 S.W. 2d 373 (1947), and Pendleton v. State, 211 Ark. 1054, 204 S.W. 2d 559 (1947) and, hence, there can be nothing prejudicial in the mere mention of parole, which is all we find to have occurred in this case. Besides, from the evidence already before it the jury could easily have concluded that appellant was on parole. Certainly there was nothing so prejudicial as to require a mistrial, which has been repeatedly said to be a drastic remedy to be resorted to only when the prejudice is so obvious that it cannot be cured. Gammel & Spann v. State, 259 Ark. 96, 531 S.W. 2d 474 (1976), and Johnson v. State, 254 Ark. 293, 493 S.W. 2d 115 (1973). We find no prejudicial error in the record.

The judgment is affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I believe the remarks of the prosecuting attorney set out in the majority opinion are clearly prejudicial. It is exactly the same as the “Golden Rule” argument which we hold to be prejudicial in civil cases. The prosecutor’s statement told each juror to consider the facts from the view that they had a gun pointed at them by desperate individuals who might kill them. This certainly is improper, in my opinion.

The statement concerning parole was likewise prejudicial. The exact statement was:

Now, these convictions range over a period of time since 1971. This being 1981, it’s ten years. Over a ten year period, Michael Abraham, if you put all of these sentences together, 38, 48, 58, actually has been sentenced to over sixty years imprisonment. And, apparently, since he’s out, has done all right, been paroled.

The above statement was not true according to the court’s response to the objection to the prosecutor’s remark:

There’s an argument here that he’s out and we know that’s not so. But it would probably have been prejudicial to raise it then if you want to tell him that he’s in the penitentiary on this 38 years.

The parole possibility was mentioned in Andrews v. State, 251 Ark. 279, 472 S.W. 2d 86 (1971), and there we stated:

... we have concluded that this information should not be given the jury, and when asked for such information, the court should reply, in effect, that it is improper for the court to answer the inquiry, and an answer might well constitute reversible error; that the jury need not concern itself with the matter; that the control of the parole system is committed by law to the legislative and executive branches of the government. . . .

After the prosecutor made the untrue remarks about appellant being on parole, the defense counsel had to choose between telling the jury that his client was still in the penitentiary or allowing the remark to stand with the jury being under the false impression that he was on parole.


author: Per Curiam. John I. Purtle, Justice,

text:
    Frank BIZZELL et al v. Frank WHITE, Governor of the State of Arkansas et al
    81-159
    625 S.W. 2d 528
    Supreme Court of Arkansas
    Opinion delivered December 21, 1982

      Elrod ér Lee and Lonnie C. Turner, for plaintiffs.

      Steve Clark, Atty. Gen., by: R. B. Friedlander, Asst. Atty. Gen., for defendants.
   Per Curiam.

The plaintiffs, citizens and taxpayers of this state, brought this original action in the Supreme Court of Arkansas pursuant to Amendment 45 § 5, which amends Art. 8, as amended by Amendment 23, of the Constitution of Arkansas (1874). The action is against Frank White, Paul Riviere and Steve Clark in their respective capacities of Governor, Secretary of State and Attorney General, who constitute the membership of the Board of Apportionment. The complaint challenged the composition of Senate District 7 as approved by the Board of Apportionment with the Governor dissenting. Plaintiffs allege the proposed boundary lines of District 7 will result in violating their substantive due process rights and equal protection of the law as guaranteed by the state and federal constitutions. They further allege that District 7 is neither compact nor contiguous and was intended to and does, in fact, isolate and cause to be ineffective the voting strength of those citizens who vote in three designated townships in the proposed District 7. They ask that this court redraw the boundary lines of District 7 to correct the asserted arbitrary action and abuse of discretion of the Apportionment Board and, further, revise only the boundary lines of adjacent senatorial districts made necessary by this court’s revision of District 7.

This action was commenced on July 14,1981, or within 30 days as required after the Board of Apportionment filed, on July 13, 1981, its report of apportionment with the Secretary of State. The defendant Governor filed an answer in which he virtually admitted the allegations of the complaint. Defendants Riviere and Clark, on July 27, 1981, filed a motion to dismiss on the ground that the complaint failed to state a cause of action as it attacked only a local area or portion of the statewide reapportionment plan. The plaintiffs have not amended their complaint although they reserved that right. Instead, they chose to stand on it. This court ordered the parties to brief the threshold question of whether an action would properly lie if it attacks less than the full apportionment plan.

The only question for determination presented, therefore, is whether a valid cause of action is alleged in the complaint. We believe the complaint does not state a proper cause of action pursuant to Amendment 45 § 5, which amends Art. 8, as amended by Amendment 23 of our state constitution. The pertinent provisions provide that any citizens or taxpayers may file an action here to (a) compel the Board to perform its duties, and (b) to revise any arbitrary action or abuse of discretion by the Board in making its reapportionment, provided that action for revision is brought within 30 days from the filing of the reapportionment report with the office of the Secretary of State.

Plaintiffs’ admitted attempt to contain their attack to a local area cannot restrict the remedy; i.e., that an analysis of the statewide senatorial plan shows that the reapportionment is unconstitutional. In every reapportionment case before this court, the challenge has been or is recognized as being one to the entire plan itself, a claim that it was illegal. Rockefeller v. Smith, 246 Ark. 819, 440 S.W. 2d 580 (1969); Faubus, Governor v. Kinney, 239 Ark. 443, 389 S.W. 2d 887 (1965); Stevens v. Faubus, Governor, 234 Ark. 826, 354 S.W. 2d 707 (1962); Pickens v. The Board of Apportionment, 220 Ark. 145, 246 S.W. 2d 556 (1952); Smith v. The Board of Apportionment, 219 Ark. 611, 243 S.W. 2d 755 (1951); and Shaw, Autry and Shofner v. Adkins, Governor, 202 Ark. 856, 154 S.W. 2d 415 (1941). That is the required cause of action. In this case the complaint is captioned: “Complaint Applying for Revision of New State Senate District 7.” Nowhere in the complaint is it stated or alleged that the entire plan itself is illegal or the result of arbitrary action. In the request for relief the complaint only asks the lines be redrawn in one district so as not to discriminate against the voters in three townships: Hico and Ball in Benton County and White Oak in Franklin County.

The Board has drawn or fashioned each of the 35 individual senatorial districts to achieve, as nearly as practical after considering pertinent factors, substantial equal population, as is required by our federal constitution. Reynolds v. Sims, 377 U.S. 533 (1963); Maryland Committee v. Tawes, 377 U.S. 656 (1963); and Lucas v. Colorado General Assembly, 377 U.S. 713 (1963). To the same effect see our own cases cited supra. The redrawing of one district, as here, would unavoidably result in a “ripple” effect which admittedly would require a readjustment of other districts. Plaintiffs argue, however, that the “ripple” would be limited to only those districts immediately adjacent to District 7 which would be at the most six districts. The question naturally arises, where would the “ripple” stop?

The plan is not a piecemeal plan. It was made for the entire state and every decision that went into it necessarily affects every district in the state. We cannot say, going into such a lawsuit, that only District 7 will be considered and its grievance heard. That would be like a taxpayer’s lawsuit which claims that a tax is illegal as to one taxpayer and perhaps some others but should be declared illegal only as to the complaining party.

The plaintiffs choose to attack the plan as arbitrary. Essentially their claim is that the formation of District 7 was based purely on political consideration and that the intent of the people was secondary. The plaintiffs also suggest several other districts were formed to favor incumbents. Even if those claims be valid, no claim is made that such action would or should void the plan. Instead only three townships seek relief for themselves.

Although plaintiffs concede that it may be necessary to review other adjacent proposed districts and even alter them, they refuse to request the action or even challenge the whole plan. They state, with commendable candor, that they “have no direct concern regarding what the Board of Apportionment might or might not have done” in other counties or distant parts of the state. “That is essentially none of our business, and we have no desire to make it such .... [A] redrawing of the entire Senate apportionment plan is simply not necessary nor is it requested.”

If we were going to accept this complaint as stating a valid or prima facie cause of action, i.e., one can challenge only a part of a comprehensive statewide plan, then there could be 35 different challenges to the plan. Our decision would not preclude another district from being timely challenged in a separate lawsuit. Necessarily a challenge must be made to the whole plan. While it might be demonstrated that one district, as here, is illegally drawn, or arbitrarily created, the challenge and possible relief cannot be so limited in area. That is exactly what the plaintiffs propose.

In Smith v. The Board of Apportionment, supra, the issue presented there, whether the complaint states a cause of action, was skirted. The complaint was filed by citizens of Pulaski County alleging under-representation in that senatorial district based on numerical standards. Both the majority and dissenting opinions recognized that this court could not be limited to its analysis of only one district. However, the court, on its own, considered and analyzed statewide the inequities in other districts. Here, the plaintiffs affirmatively disclaim this type of review and assert it is unnecessary. Significantly, in Smith there was no motion to dismiss. Here, there is. We accepted briefs by the parties on this one issue because if the complaint fails to state a cause of action, the case is terminated.

It appears that the plaintiffs cannot amend their complaint to state a cause of action at this stage of the proceedings. A cause of action for revision must be filed within thirty days after the reapportionment plan is filed. Ark. Const. Amend. 45. As an analogous situation, our cases regarding elections hold that an amendment to a complaint after a certain time period is not permitted when a new cause of action is stated. Bland v. Benton, 171 Ark. 805, 286 S.W. 976 (1926); Moore v. Childers, 186 Ark. 563, 54 S.W. 2d 409 (1932); Wilson v. Ellis, 230 Ark. 775, 324 S.W. 2d 513 (1959); and William H. Jones v. Etheridge, 242 Ark. 907, 416 S.W. 2d 306 (1967). Here no valid or prima facie cause of action was stated. To permit an amendment stating a cause of action at this stage of the proceedings would be allowing the plaintiffs to first do so months after the expiration of the 30 day time limitation provided by our constitution. No doubt the drafters of Art. 8, § 5, as amended by Amendments 23 and 45, each providing for a 30 day time limitation, desired that a reapportionment plan have some degree of stability and finality. In the circumstances, the motion to dismiss is granted.

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

John I. Purtle, Justice,

dissenting. I disagree with the majority opinion in this case. The complaint in this case challenged the composition of Senate District No. 7 as being violative of the Arkansas Constitution. They alleged the district was neither compact nor contiguous and intentionally isolated and caused to be ineffective the voting strength of those citizens in three designated townships in District No. 7. They further alleged the district was drawn in an arbitrary and abusive manner by the Board of Apportionment. These allegations are acts prohibited by the Board of Apportionment. Certainly, there is no logical or valid reason to require the plaintiffs to attack the entire state plan when the only knowledge they have concerns the district wherein they reside. In fact, if one district is challenged, it is a challenge to the entire plan. This case is not unlike that of Smith v. The Board of Apportionment, 219 Ark. 611, 243 S.W. 2d 755 (1951), wherein we stated:

Although the petitioners are citizens of Pulaski County and the Thirteenth Senatorial District, the objections they offer to the Board’s plan of reapportionment without change is in a sense state-wide.

In Smith the members of one district sought to have an additional senator added to their district. In dealing with the case on its merits we treated it as an attack on the entire plan. We remanded the matter to the Board of Apportionment with directions to draw a plan to allow District No. 13 at least three senators instead of two as provided in the plan approved by the Board.

If, for example, District No. 7, as presently composed, contains only 35,000 inhabitants and District No. 8, or any other district adjacent to District No. 7, contained 95,600 inhabitants, it would be obvious that corrective action was demanded. If, for example, a line could be drawn between the existing District No. 7 and an adjacent district whereby 30,300 residents from the adjacent district would become a part of District No. 7, then there would be two districts each containing 65,300. However, we will never know whether this is the case because the plaintiffs have been denied the right to offer their proof. And contrary to what the majority has stated concerning its decision, “Our decision would not preclude another district from being timely challenged in a separate lawsuit,” the time within which the plan could be challenged ended 30 days after the Board of Apportionment filed the plan with the Secretary of State (July 13, 1981), effectively precluding any further suits challenging the plan.

I disagree with the majority opinion when it states that a portion of the reapportionment plan for the state cannot be attacked unless the entire plan is attacked. If a dog bites my ankle, he has surely attacked my body as a whole.

Adkisson, C.J., and Dudley, J., join in this dissent.


author: Richard B. Adkisson, Chief Justice. George Rose Smith, Justice, Darrell Hickman, Justice,

text:
    CYPRESS CREEK FARMS v. L’ANGUILLE IMPROVEMENT DISTRICT NO. 1
    81-156
    626 S.W. 2d 357
    Supreme Court of Arkansas
    Opinion delivered January 11, 1982

      Butler, Hicky ér Hicky, Ltd., by: Steve Routon, for appellant.

      Shaver, Shaver ér Smith, by: Tom B. Smith, for appellee.
   Richard B. Adkisson, Chief Justice.

By order of December 27,1979, the Cross County Circuit Court established the L’Anguille Improvement District No. 1, hereinafter District, which included parts of Woodruff, Cross, St. Francis, and Lee Counties. Prior notice of the hearing was given by publication for two weeks in a newspaper having general circulation in each county of the District. It is admitted that all proceedings were conducted in accordance with the provisions of Ark. Stat. Ann. § 21-1001 —- 1002 (Repl. 1980) and that appellant did not appeal the order creating the District within 30 days as required by § 21-1002.

On March 27,1980, appellant filed a motion to set aside the order forming the District on the grounds that the notice by publication permitted by Ark. Stat. Ann. § 21-1001 (Repl. 1968) was unconstitutional as a violation of his right to due process. This appeal is from the court’s order denying this motion. We affirm.

The District encompassed 350,000 acres in Woodruff, Cross, St. Francis, and Lee Counties, Arkansas. Appellant is a partnership owned in part by Edward P. Russell, a resident of Memphis, Tennessee. Appellant owns 240 acres which is part of 124,192.93 acres included within the District in St. Francis County.

After a petition for formation of the District was filed, notice of the hearing on the petition was given pursuant to Ark. Stat. Ann. § 21-1001:

Upon the filing of said petition, the petition shall be presented to the Judge of the Circuit Court, either in term or vacation, and the Court shall make an Order directing the Clerk of the Circuit Court in which the petition is filed to give notice by publication for two (2) weeks in some newspaper or newspapers published and having a general circulation in each of the Counties embraced within the proposed boundaries of said district, calling upon all persons owning property therein to appear before the Court on some day to be fixed by the Court to show cause in favor of or against the establishment of said district.

An appeal from an order granting the petition is provided by Ark. Stat. Ann. § 21-1002:

The Order of the Circuit Court establishing the said district shall have all of the force and effect of a judgment. Any owner of real property within the district may appeal from said judgment within thirty (30) days after the same has been made, but if no appeal is taken within that time, such judgment authorizing and creating the district shall be deemed conclusive and binding upon all of the property within the bounds of the district and upon the owners thereof; and any owner of property in the district may within a like manner appeal from any order refusing to establish such district.

Evidence presented at the hearing on appellant’s motion reflects that tax notices on this property for the past few years had been sent to Cypress Creek Farms, c/o Edward P. Russell, Union Planters Bank Building, Memphis, Tennessee, 38103, and that appellant had no actual notice of the proceeding regarding the formation of the District until informed of its existence on March 25, 1980. Appellant acknowledges that notice was given in accordance with the statutory provisions for notice in § 21-1001, but argues that such notice is void and unconstitutional as to him for failure to comply with the due process clause of the Fourteenth Amendment. Appellant argues that he had involved substantial property rights and due process required that he be given notice by certified mail, which he argues was the only means available that could reasonably convey to him the information regarding the formation of the District.

The hearing to establish the District is the only opportunity a landowner has to contest the necessity of the inclusion of his land in the District. The land included will then be subject to having benefits or damages assessed. Ark. Stat. Ann. § 21-1005 (Repl. 1968). Therefore, substantial property rights of appellant were involved at the hearing to establish the District, and before such right could be affected, he was entitled to notice and opportunity for hearing appropriate to the nature of the case. Mullane v. Central Hanover B. & T. Co., 339 U.S. 306 (1950).

Although appellant’s substantial property rights were involved at the hearing on the formation of the District, appellant is not necessarily entitled to notice by mail. The United States Supreme Court stated in Mullane that it “has not hesitated to approve or resort to publication as a customary substitution in another class of cases where it is not reasonably possible or practical to give more adequate warning.” Statutes are presumed to be constitutional and there is no evidence of record that the statutory notice was not appropriate to the nature and circumstances of this case. In St. Francis County there was involved in the District 124,192.93 acres, of which 240 acres were owned by appellant. The record does not reflect the number of persons owning the various parcels of land within the District but even if a small town was included in the District, the number of owners requiring notice by certified mail would likely be in the thousands. In any event, appellant has not shown that the statute providing for notice by publication is unconstitutional. Therefore, we are unable to say that the trial court’s decision that the statutory notice was sufficient is clearly erroneous.

Questions regarding the adequacy of the notice of assessment of benefits and damages are not before this Court in this case. Also not before the Court is the adequacy of notice to bar a suit for damages. Our decision is limited to the sufficiency of the notice in establishing the District.

Affirmed.

George Rose Smith, J., concurs.

Hickman and Purtle, JJ., dissent.

George Rose Smith, Justice,

concurring. This is not a condemnation proceeding in which the appellant’s land is about to be taken. All the appellant alleges is that certain landowners filed a petition to form a district to improve the L’Anguille River. Notice by publication was given, under the statute, of a hearing for the determination of whether the district should be formed. Presumably the matter was of sufficient local interest to put resident landowners on notice that the question of improving the river was at issue. The appellant has not alleged anything to the contrary. I do not think that with respect to the mere formation of the district there is any due process requirement that all landowners be made defendants by name, with service of process upon residents and the appointment of attorneys ad litem for nonresidents, yet that is what the appellant contends. There is no threat to the appellant’s land until benefits, if any, have been assessed and taxes have been levied. At that time the appellant may have a ground for complaint under the due process clause, but that point in the proceeding is not shown to have yet been reached.

It is immaterial that the point was not argued below, as the dissenting opinion notes, for we affirm a correct decision even though the right reason was not given by the trial court. Reeves v. Ark. La. Gas Co., 239 Ark. 646, 391 S.W. 2d 13 (1965).

Darrell Hickman, Justice,

dissenting. The majority has reduced the due process clause of the fourteenth amendment to a mumble of words which have no actual meaning. That clause has to be the most important legal phrase in our body of law and its application and enforcement should always be of paramount consideration.

This case focuses on the question of notice and its place in due process of law. The appellants are landowners in St. Francis County, Arkansas, but they reside in Tennessee. A large improvement district was proposed in Eastern Arkansas encompassing lands in four counties: Woodruff, Cross, St. Francis and Lee. The petition was filed in Cross County and owners of land in St. Francis County were notified by a publication in a St. Francis County newspaper. Only land descriptions were used to identify interested parties. It is undisputed the appellants had no actual notice. It is also undisputed that the appellants were regularly mailed notice of their real property taxes by St. Francis County. The majority concedes that the appellants have substantial property rights which are involved in the legal proceedings. Therefore, we have a real due process question.

On the basis of an Arkansas statute that permits notification by publication, the majority finds that due process of law was afforded in this case. There was no evidence that it would have been totally impractical or unreasonable to require a better form of notice, one that would have been more reasonably calculated to apprise all interested parties of the pending action. Indeed a method of such notice was readily at hand — the county had a list of property owners and regularly mailed tax notices to those owners.

The majority concedes that the record does not reflect the number of persons owning parcels of land, nor the number of parcels in the proposed district. But the opinion goes on to say that “... even if a small town was included in the District, the number of owners requiring notice by certified mail would likely be in the thousands.” I do not find that convenient fact in the record.

No doubt in a good faith effort, the majority quotes from the case of Mullane v. Central Hanover B & T Co., 339 U.S. 306 (1950) as authority for its decision. The case holds exactly to the contrary and language in the case explains the Court’s attitude toward due process of law.

. .. The fundamental requisite of due process of law is the opportunity to be heard. Grannis v. Ordean, 234 U.S. 385,394. This right to be heard has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear or default, acquiesce or contest..
... An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. . . .
But when notice is a person’s due, process which is a mere gesture is not due process. The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it. The reasonableness and hence the constitutional validity of any chosen method may be defended on the ground that it is in itself reasonably certain to inform those affected, compare Hess v. Pawloski, 274 U.S. 352 with Wuchter v. Pizutti, 276 U.S. 13, or, where conditions do not reasonably permit such notice, that the form chosen is not substantially less likely to bring home notice than other of the feasible and customary substitutes.
It would be idle to pretend that publication alone, as prescribed here, is a reliable means of acquainting interested parties of the fact that their rights are before the courts. It is not an accident that the greater number of cases reaching this Court on the question of adequacy of notice have been concerned with actions founded on process constructively served through local newspapers. Chance alone brings to the attention of even a local resident an advertisement in small type inserted in the back pages of a newspaper, and if he makes his home outside the area of the newspaper’s normal circulation the odds that the information will never reach him are large indeed. The chance of actual notice is further reduced when, as here, the notice required does not even name those whose attention it is supposed to attract, and does not inform acquaintances who might call it to attention. In weighing its sufficiency on the basis of equivalence with actual notice, we are unable to regard this as more than a feint.

The attempt to notify the appellants in this case was as Justice Jackson said “no more than a feint.”

It is suggested in a concurring opinion that this was not a critical stage of the litigation requiring notice to the appellant. This issue was not directly argued below, both parties conceding that the issue was whether the notice was constitutional.

Purtle, J., joins in this dissent.