text:
    Bell v. Howard County Training School.
    5-3027
    368 S. W. 2d 266
    Opinion delivered June 3, 1963.

      John B. Hainen, for appellant.

      Don Steel, for appellee.
   Carleton Harris, Chief Justice.

At the beginning of school in the fall of 1962, fifty students, who had previously attended Howard County Training School District No. 38, a school district located in two counties, and appellee herein, situated at Tollett in Howard County, transferred to Sevier County High School, District No. 1, located at Lockesburg in Sevier County. Hereinafter, at times, these schools will be referred to as Tollett and Lockesburg. Thirty-five of the fifty children live in still another school district, Mineral Springs School District No. 3, likewise a district in two counties, administered in Howard County. All of the fifty children live in Sevier County, and were transferred upon the individual applications of respective parents or patrons with the approval of Sevier County High School District No. 1 and the Sevier County Board of Education. Tollett School, through its Board of Directors, instituted suit against the directors of Lockesburg, appellants herein, alleging, inter alia, that such transfer of students could not be made without the approval of the Howard County Board of Education, and that this board had not given its approval. Appellee alleged that it would suffer irreparable damage in state aid for its school district unless appellants were enjoined from permitting the fifty students, residents of Howard County Training School District No. 38 from attending Sevier County High School District No. 1, and injunctive relief was sought. On trial, the court entered its decree restraining and enjoining appellants from permitting the aforementioned fifty students to attend the Lockesburg School. From such decree, comes this appeal.

The first question in this litigation is whether the fifty students were legally transferred from Tollett to Lockesburg. All facts were stipulated, except that appellants offered some additional evidence by parents of affected students. Part of this evidence was to the effect that the school at Lockesburg was not convenient for the particular students (whose parents testified), and other parents were of the view that their children were better satisfied, and would receive a better education at the Lockesburg School. Portions of the stipulation, which we deem pertinent to a determination of the litigation, not already mentioned in the statement of the case, are as follows:

“On June 1, 1949, the Sevier County Board of Education with the approval of the Howard County Board of Education and with the approval of Howard County Training School District No. 38 authorized and directed the territory that was formerly Paraloma School District No. 54 in Sevier County to become annexed to Howard County Training School District No. 38, and on the same date the Sevier County Board of Education with the approval of the Howard County Board of Education and with the approval of Howard County Training-School No. 38 authorized and directed the annexation of the territory that was formerly Graves Chapel School District No. 60 in Sevier County to Howard County Training School District No. 38. Both of the above mentioned transfers were approved by the State Department of Education. * * *
‘ ‘ Since June 1, 1949, students of what was formerly the Paraloma School District No. 54 and Graves Chapel School District No. 60 have been attending- Howard County Training School District No. 38, however, some patrons expressed the desire to attend Sevier County High School District No. 1 located at Lockesburg, Arkansas, and in connection therewith presented petitions to the Sevier County Board of Education to transfer to the Lockesburg School in the years of 1959, 1960 and 1961. For these years the students were refused permanent enrollment to the Lockesburg School. * * *
“Howard County Training- School No. 38, because of the annexation orders mentioned above, embraces territory in Howard and Sevier County.
“There are a greater number of inhabitants and students residing- in the Howard County portion of Howard County School District No. 38 than in the Sevier County portion of said District, and the Howard County Board of Education administers Howard County School District No. 38. * * #
“Neither the Howard County Training School District No. 38 School Board nor the Howard County Board of Education approved the transfer of said students.
“Mineral Springs School District No. 3 where 35 of the 50 involved students reside is a School District embracing territory in both Howard and Sevier County. There are a larger number of inhabitants and students residing in the Howard County portion of Mineral Springs School District No. 3 than in the Sevier County portion of said District, and said School District is administered by the Howard County Board of Education. ’ ’

Neither the stipulation nor the oral evidence reflects whether the thirty-five pupils in the last named district, Avere ever properly transferred from the Mineral Springs District to Howard County Training School District No. 38.

Our statutes authorize a transfer of children from one school district to another. Section 80-1517, Ark. Stats. (1960 Replacement) provides:

“The county board of education shall have power, upon the petition of any person residing in any particular school district, to transfer the children or wards of such person to a district in the same county, or to a district in an adjoining county for school purposes. * * * J )

Section 80-1518, Ark. Stats. (1960 Replacement) further sets out:

“From and after the passage of this Act no County Board of Education shall make an order transferring-any school child or children from one district to another until and unless consent of the Board of Directors of the district to which such child or children are sought to be transferred has been secured in Avriting, such written consent to be filed in the office of the County Clerk of the county from which such child or children are to be transferred.”

Appellants argue that the paramount authority for any transfer rests Avithin the receiving district, and since the receiving district, in this case, approved the transfer of these children, same is valid. Appellants further rely upon the provisions of Section 80-1527, Ark. Stats. (1960 Replacement), a portion of the “Pupil Assignment Act,” and the apparent purpose of offering the testimony of various parents was to come within the provisions of that act.

While we concur that a child cannot be transferred to another district without the consent of the Board of Directors of the receiving district, we do not agree that the paramount authority rests with the Board of the receiving district; rather, a valid transfer requires the “consent” of both the “sender” and the “receiver.” The transfer must be made by the County Board of Education in which the “sending” district is located 80-1517), or in the case of adjoining districts, by mutual agreement between the two local Boards of Education (“sending” and “receiving”).

Pertinent portions of § 80-414 (1960 Replacement) read as follows:

“Districts may be formed embracing territory in two (2) or more counties on order of the County Board of Education in each county where a part of the district will be situated, and changes of boundaries of school districts in such situations may be made in the following-manner : When copies of a petition of a majority of the qualified electors in each district affected, praying- for the formation of such a district, are presented to the County Board of Education concerned, the County Board of Education of the county in which lives the largest number of inhabitants of the territory affected shall, within five (5) days, give notice to the county and district boards affected of a hearing to be held not less than ten (10) days nor more than thirty (30) days from the date of said notice, to be held at some designated time and place in the proposed district. The County Board of Education, or their duly constituted representatives, of each county in which territory of the proposed district is situated, shall attend such hearing and shall consider such facts as they may deem pertinent for consideration in the formation of the proposed district. Within five (5) days after said hearing the County Board of Education of each county in which territory of the proposed district is situated, if in the judgment of said hoards such a district should be formed, shall issue an order transferring the territory affected in their respective counties, to the proposed district. Said order shall be filed with the county supervisor of each respective county and with the county supervisor of the county in which is situated the largest number of inhabitants of the territory affected. Such district thus formed, for all school purposes, shall be thereafter a part of the county in which is situated the largest number of inhabitants of the territory affected. * * *”

It is stipulated in this litigation that “there are a greater number of inhabitants and students residing in the Howard County portion of Howard County School District No. 38 than in the Sevier County portion of said district, and the Howard County Board of Education administers Howard County School District No. 38.” It is also admitted that neither the Howard County Board of Education nor the Howard County Training School District No. 38 school board approved the transfer of these students. Thus, the pupils were not transferred in accordance with the provisions of either § 80-1517 or § 80-1528. It follows that the transfer was not properly made.

A similar dispute arose in Gillham School Dist. No. 47 of Sevier and Polk Counties v. Millard, 203 Ark. 1121, 160 S. W. 2d 215. There School District No. 47 included territory in both Sevier and Polk Counties, with the larger number of its inhabitants residing in Sevier County. The County Board of Education, or County Court, of Polk County transferred a number of students, from District No. 47 to District No. 79, which embraced territory in only Polk County. This Court, in holding-that the action of the Polk County authority in making such transfer was illegal, said:

“The trial court found, and the undisputed facts sustain the finding, that a majority of the inhabitants of district No. 47 reside in Sevier County. Section 11486 provides in part that ‘for all school purposes such district situated in two or more counties, shall be a part of the county in which is situated the largest number of inhabitants of the territory affected.’ District No. 47, under the statute, is a Sevier County district for all school purposes, and its domicile is in Sevier County. * * * That part of Polk County embraced in District No. 47 being in Sevier County for all school purposes, it follows that Sevier County authorities and not Polk County authorities have and had the right to transfer students or pupils out of District No. 47 into District No. 79 upon proper application. Polk County officials had no authority or jurisdiction to transfer students or pupils out of the Sevier County district to District No. 79, and the order doing so being void is subject to collateral attack.”

The Pupil Assignment Act can be of no aid to appellants for § 80-1527 only authorizes a county board of education to assign or transfer students to other schools “within its jurisdiction.” Here, the transfers were made by Sevier County High School District No. 1 and the Sevier County Board of Education. Neither had jurisdiction over pupils of Howard County School District No. 38 and the purported transfer was consequently not properly made.

However, the omission in the stipulation as to whether the Mineral Springs children were originally properly transferred to Howard County Training School District No. 38, necessitates a remand of this cause for further proceedings relative to the status of the thirty-five children who live in the Mineral Springs district. It is not clear whether this point was presented to the trial court, hut appellants, in their brief, strenuously argue that no showing has been made that any of these thirty-five children have ever been transferred to the Tollett District, and that a “majority of the involved children do not live within the Tollett District, have never lived in the Tollett District and are not in any way a part of the Tollett District.”

While, as stated, the transfer of the fifty children to Sevier County High School District No. 1 was not legally made, still if these children were never legally transferred from Mineral Springs to the Tollett School, the board of the latter district cannot he heard to complain. The Howard County Board of Education is not a party to this lawsuit, nor is the hoard of Mineral Springs School District No. 3. These hoards have made no complaint—have sought no relief—unless these thirty-five children have been previously properly transferred from the Mineral Springs District to Howard County Training School District No. 38, appellee has no standing to question the action of the Sevier County Board of Education and Sevier County High School District No. 1.

As to the fifteen children (formerly in the Paraloma and Graves Chapel School Districts which were annexed to Howard County Training School District No. 38) the decree is affirmed, hut the cause is remanded to the Sevier County Chancery Court with directions to conduct further proceedings for the purpose of determining whether the thirty-five students who reside in Mineral Springs School District No. 3 were legally transferred from that district to Howard County School District No. 38, and upon making such determination, to enter a decree consistent with this opinion.

It is so ordered.

       This act was held valid in the case of Dove v. Parham, 176 P. Supp. 242.

       Section 80-1527 deals with factors considered in assignment of pupils, and inter alia, provides that the local board of education shall consider “the availability of transportation facilities; * * * the psychological qualification of the pupil for the type of teaching and associations involved; * * * the choice and interests of the pupil.”

       Section 80-1528 (1960 Replacement) provides: “A local Board of Education may, by mutual agreement, provide for the admission to any school of pupils residing in adjoining districts whether in the same or different counties, and for transfer of school funds or other payments by one Board to another for or on account of such attendance.”

       This section is the same as the present § 80-414.

       Also referred to as “local boards of education!” See § 80-1526.


source: Caselaw Access Project

author:
Ed. F. McFaddin, Associate Justice.
      Boyd Tackett, Special J.
      Jim Johnson, Associate Justice

license: Public Domain

text:
    Bennett, Atty. General v. N.A.A.C.P.
    5-2575
    370 S. W. 2d 79
    Opinion delivered June 3, 1963.
    [Rehearing denied September 9, 1963.]

      Bruce Bennett, Atty. General, by Jack L. Lessen-berry, Asst. Atty. General and John T. Jernigan, Prosecuting Attorney, for appellant.

      George Howard, Jr., Robert L. Garter and Maria L. Marcus, New York, N.Y., for appellee.
   Ed. F. McFaddin, Associate Justice.

This appeal poses the question of the constitutionality of four Acts adopted at the Second Extraordinary Session of the 1958 General Assembly of Arkansas. The Acts adopted at that session, and here involved, are: Act No. 12, which empowered the county judge of any county to require certain organizations engaged in specified activities connected with the schools to furnish stated and required information; Act No. 13, which empowered the Attorney General of Arkansas to obtain access to the files, records, correspondence, etc. of certain organizations; Act No. 14, which added additional definitions to the crime of barratry and prescribed penalties; and Act No. 16, which added additional definitions to the crime of maintenance and prescribed penalties. The full text of each of these Acts may be found in Pages 2023 et seq. of Volume 2 of the printed Acts of the 1959 General Assembly.

The National Association for the Advancement of Colored People, joined with some of its officers, filed this suit in the Pulaski Chancery Court, seeking a declaratory judgment to the effect that each of the four Acts was unconstitutional. The defendants in this suit were the Attorney General of Arkansas, the Prosecuting Attorney of the District of which Pulaski County is a part, and the County Judge of Pulaski County. Upon issues joined, the cause was heard ore terms, and the Chancery decree was that Acts 12, 14 and 16 were unconstitutional, and that Act No. 13 was valid. The correctness of that decree is challenged by both direct and cross appeal.

I. A Justiciable Issue. At the outset, the Attorney General insists that this is not a proper case for a declaratory judgment because there is no effort being made by anyone to proceed against the plaintiffs (appellees) under any of these Acts. This insistence fails to meet the issue. The NAACP first filed suit in the United States District Court for the Western Division of the Eastern District of Arkansas and challenged the four Acts here involved. A three-Judge Federal Court held, on October 8,1959, that the NAACP should first proceed in the Arkansas Courts. The NAACP and the other plaintiffs then filed this present suit for declaratory judgment in the Pulaski Chancery Court, and we hold— as did the Chancellor—that a justiciable controversy is presented.

II. Acts Nos. 12, 14 and 16. The Chancery Court held each of these Acts to be unconstitutional; and we quote the Chancellor’s opinion on each of these Acts:

“ACT NO. 12.
“Act No. 12 has for its stated purpose the maintaining of law, peace and order in the administration of public schools. Briefly it provides that whenever any organization (which includes civic, fraternal, political, mutual benefit, medical, trade or other kind) engaged in ‘activities designed to hinder, harass and interfere with powers and duties of the State of Arkansas to control and operate its public schools’ the County Judge may ‘request’ that the organization file with the County Clerk certain information, under oath, revealing the name, members, officers and purposes of the organization. Assumedly an objectionable feature of the Act is the requirement that a list of the members must be made public, thus depriving the members of their asserted right to privacy. . . .
“Regardless of how laudable its purpose, Act No. 12 is too broad in its scope to meet constitutional requirements. Under its plain language, any organization which questions the State’s ‘power or duty’ in the operation of the public schools must comply with its provisions and subject its members to publication of their names. It is fundamental that every citizen has the legal and inherent right to access to the Courts to question in a lawful and peaceable manner any action of the State in the exercise of any of its powers and duties. This applies to the action of the State, not only with regards to the public schools, but to any other activity in which it may exercise its powers and duties. The effect of Act No. 12 is to subject any organization whose members desire to seek a ruling of the Court on the legality or constitutionality of the action of the State towards the public schools or with relation to the public schools to publicity which to some constitutes harassment. Any act of the Legislature which has as its purpose or effect the denial of the right of the citizen to free and untrammeled access to the Courts or which seeks by intimidation, vexation or otherwise, to discourage the exercise of that right is plainly unconstitutional. No obstacle can be legally placed between the citizen and his Court. Article 2, Section 13 of the Arkansas Constitution provides :
‘Every person is entitled to a certain remedy in the laws for all injuries or wrongs he may receive in his person, property or character; he ought to obtain justice freely, and without purchase, completely, and without denial, promptly and without delay, conformably to the laws. ’
“By the above language the framers of our Constitution have stated specifically that justice may be obtained without purchase and without vexation, freely and promptly. This right of the citizen cannot be infringed by legislative act. St. Louis Iron Mtn. Railway v. Williams, 49 Ark. 492; Riggs Co. v. Martin, 5 Ark. 506. ‘ ‘ There is yet another ground upon which this Act must fail. Although under Section 2 the term ‘organization’ is given a wide definition, under the provisions of Section 3 of the Act only those organizations are required to comply with the terms of that Act which are subject to the ‘request’ of the County Judge. Thus, the discretionary act of the County Judge is necessary to bring into play the provisions of the Act against any organization. The applications of the law must not depend upon the uncontrolled discretion of any public official or else there will be an unconstitutional delegation of power prohibited by Article 4, Section 1 of the Arkansas Constitution. The Arkansas Supreme Court has construed that constitutional provision to prohibit the Legislature from delegating to any public official the power to select those against whom state laws shall apply. To avoid the proscription against unconstitutional discrimination the law must apply to all persons within a named class equally and without favor or exception. It must be so complete in all of its terms and provisions when it leaves the legislative branch of the government, that nothing is left to the judgment of any appointee or delegate of the Legislature. State v. Davis, 178 Ark. 153; 11 Am. Jur. Sec. 215, p. 924.
“For the above reasons, it is the opinion of this Court that Act No. 12 is unconstitutional and invalid ??
“ACTS NO. 14 AND 16
“Acts 14 and 16 will be considered together because they deal with subjects so inter-related that it is almost impossible to consider one without the other.
“The subject of these two Acts are ‘Champerty’, ‘Maintenance’ and ‘Barratry’.
“Act No. 14 purports to define the crime of barratry and includes nine separate sections of definitions.
“Sub-section B of Section 1 is so vague, indefinite, uncertain, yet inclusive, that it would make difficult or impossible life in a society in relation to access to the judiciary and particularly is this true under a constitutional form of government. Acts which may ‘tend to breach the peace’ are so numerous as to beg description. Our form of government guarantees to all of us the right of free and uninhibited access to the judiciary, and this certainly implies that we must not be so fearful of every day and common acts that this access to the judiciary is actually fettered because of fear. This definition tends to impair freedom of thought and action with relationship of access to the judiciary.
“The proposed definition in Sub-section C of Section 1 makes the single act of proposing that a fellow man litigate, regardless of intention or the merits of the proposed litigation, or regardless of the good intentions of the proposer, a felonious act in this society punishable by heavy fine and imprisonment. It is well established in our law today in this State that a labor union cannot sue or be sued in its own name, but must do so through the individuals or representations of the individuals within that group. It would appear to this Court that if this provision could conceivably be held valid, that this would effectively bar labor unions and other unincorporated associations from access to the judiciary; and, as previously stated, under our Constitution this cannot be done.
“Sub-section D of Section 1 is equally as invalid as are sub-sections B and C aforesaid, and for the same reasons, and in addition the Court would observe that the practice of law would be an extremely hazardous profession to pursue in face of the serious penalties imposed by the Act.
“Sub-sections F, G, H, and I of Section 1 do not ' make complete sentences or complete thoughts and for that reason define nothing.
“Act No. 16 deals with the common law crimes of maintenance and champerty, as therein greatly enlarged to include the giving, receiving, accepting of assistance or inducements to commence or prosecute any proceeding in any Court or before an administrative agency.
“Once again we call attention to the situation that unincorporated associations would find themselves inhibited, as well as many well intentioned and highly motivated people, in assisting indigent people in defending themselves against criminal charges or in prosecuting or defending civil actions. This definition goes considerably beyond, not only proprietary but constitutional limitations, and clearly violates the 14th Amendment to the Constitution of the United States and Article 2, Section 8 of the Arkansas Constitution.
“Sections 3 and 4 of Act 16 would seemingly destroy and certainly impair the power or right to make contracts between attorney and client.
“Section 5 of Act 16 provides penalties for filing-false affidavits as required in Sections 3 and 4; and among other things imposes a heavier and more severe penalty upon non-resident attorneys than it does upon resident attorneys. For this reason the Act is discriminatory and violates the equal protection clause of both the Constitution of Arkansas and the United States.
“Section 6 would require a person to appear before a grand jury and would require testimony to be given regardless of whether such testimony or evidence would tend to incriminate him. This would seem to this Court to violate the Fifth Amendment to the United States Constitution and would also clearly violate Article 2, Section 8 of the Arkansas Constitution.
“Paragraph 7 purports to exempt certain types of litigation from the provisions of Act 16; and in the opinion of this Court constitutes an unlawful classification within a class without reasonable relation and is therefore discriminatory.
“It is the opinion of this Court'that both Act No. 14 and Act No. 16 are unconstitutional and invalid.”

We have quoted the opinion of the learned Chancellor to show the care and study he gave to the issues. There is no need for us to accept or reject the reasoning of the learned Chancellor, because our Acts Nos. 12,14, and 16 were borrowed from the State of Virginia; and the Courts of that State, along with the Supreme Court of the United States, have finally destroyed the validity of these Acts. The Special Session of the General Assembly of Virginia in 1956 adopted five Chapters, from which we borrowed the language of our Acts Nos. 12, 14, and 16. In the case of National Association for the Advancement of Colored People v. Robert Y. Button, Attorney General of Virginia, 371 U.S. 415, 9 L. ed. 2d 405, 83 S. Ct. 328, Mr. Justice Brennan, in the Majority Opinion, stated that the Circuit Court of the City of Richmond held most of Chapters 31, 32, and 35 unconstitutional; and that the Supreme Court of Appeals of Virgina, in NAACP v. Harrison, 116 S. E. 2d 55, held Chapter 36 unconstitutional. So there was left only Chapter 33 on barratry and maintenance. The Supreme Court of the United States in the said Button case held the Virginia Chapter 33 to be unconstitutional; and in his concurring opinion in the Button case, Mr. Justice Douglas lists our Act as being modeled from the Virginia Act. We think the Supreme Court of the United States in the Button case has swept the foundations from under the Acts here involved; so we hold Acts Nos. 12, 14, and 16 to be unconstitutional.

III. Act No. 13. The Chancery Court held this Act No. 13 to be constitutional; but we hold that the Act is unconstitutional under the authority of the decision of the Supreme Court of the United States in Bates v. City of Little Rock, 361 U.S. 516, 4 L. ed. 2d 480, 80 S. Ct. 412. The Act No. 13 provides that if the Attorney General of Arkansas should have reason to believe that any organization was attempting to defraud the State of Arkansas of its taxes, the Attorney General might procure an ex parte order from any Chancery Court and have access to all of the files, records, correspondence, and other data of said organization.

When we consider the caption to the Act, the session at which it was adopted, and the circumstances that led to the calling of that session, we are convinced that the Supreme Court of the United States would hold that the Act was aimed at the NAACP and required a compulsory disclosure of information which was proscribed by the decision of the Supreme Court of the United States in Bates v. City of Little Rock, supra. The whole tenor of the decision in the case of NAACP v. Button leads us to the inevitable conclusion that this Act No. 13 would be promptly declared unconstitutional in line with Bates v. City of Little Rock, supra, and NAACP v. Button, supra.

It follows that all four of the Acts here involved are hereby declared' to be unconstitutional.

Holt, J., disqualified and not participating.

Johnson, J. and Boyd Tackett, Special J., dissent.

Boyd Tackett, Special J.

(dissenting). Act 12 of the Second Extraordinary Session of the Sixty-First General Assembly of the State of Arkansas, as Amended by Act 225 of the 1959 Legislature, Ark. Stat. 80-1910-14, provides in substance that a County Judge of any county of this state, who believes that any organization operating-in the county is engaged in activities designed to hinder, harass and interfere with the powers and duties of the State of Arkansas to control and operate its public schools shall afford a public hearing, after notice is given to the involved organization, to make a determination as to whether such organization operating- within the involved county is engaged in such aforementioned activities; and that, upon a determination by the County Judge, after such notice and hearing that the organization is engaged in activities detrimental to the powers and duties of the State of Arkansas to control and operate its public schools, he shall order the organization to file with the office of the County Clerk, within a period of seven days after such order is made, the following: (1) official name of the organization and its list of members, (2) the office, place of business, headquarters or usual meeting-place of the organization, (3) the officers, agents, servants, employees, or representatives of the organization, (4) the purpose of the organization, and (5) a statement disclosing whether the organization is subordinate to a parent organization, and, if so, the name of the parent organization. The legislation further provides that the organization shall furnish the required information; and the information thus filed becomes public information. A penalty is provided for violation of the legislative provisions.

Act Í3 of the Second Extraordinary Session of the Sixty-first General Assembly of the State of Arkansas, Arl>. Stat. 84-4012-15, provides, in substance, that if the Attorney General of the State of Arkansas should have reason to believe that any organization within the State has evaded, attempted to evade, or has defrauded the State of Arkansas of taxes due it under the laws of the State of Arkansas, he may, upon procurement of an order of authorization ex parte from any Chancery Court, scrutinize and obtain copies of the records of the organization and obtain any evidence from the organization revealing evasion of the state taxes or violation of any of the laws of the State of Arkansas. The legislation requires the involved organization to make available to the Attorney General the involved records; a penalty is provided for violation; and the procured evidence becomes admissible in all courts.

Concerning Act 12, as amended, and Act 13, our United States Supreme Court, during the month of October, 1928, State of New York, ex rel v. Zimmerman, et al. 278 U. S. 63, held similar New York legislation to be Constitutional. The New York Statute—supposedly directed at the Ku Klux Klan—-provided that organizations which required an oath prerequisite of membership, other than Labor Unions and Benevolent Orders, file with the Secretary of State of New York a sworn copy of its Constitution, rules, roster of members, officers, etc.

Our 1928 United States Supreme Court, in this New York v. Zimmerman case, held that the contention of being deprived of liberty of membership in the organization was without merit; that liberty, and other personal rights, must yield to the rightful exertion of police power; that the state might prescribe and apply to organizations any reasonable regulation calculated to define the purposes and activities within limits consistent with the rights of others and the public welfare; that the state was entitled to be informed of the nature and purpose of the organization, the membership, and by whom its activities were conducted; that the required information would operate as an effective or substantial deterrent from violations of public and private right to which the organization might be tempted if such disclosure were not required; that the requirement was not arbitrary or oppressive, but reasonable and likely to be of real effect; and that the power to require the disclosures included authority to prevent individual members of an association who had failed to comply from attending meetings or retaining membership with knowledge of its default. Our United States Supreme Court, in that instance, concluded that the “due process clause” of our Constitution was not violated.

However, on the 30th day of June, 1958, our United States Supreme Court did a complete about-face, turned a flip-flop, and, in the case of NAACP v. Alabama, 357 U. S. 499, ruled that a requirement for disclosure of NAACP membership was Unconstitutional.

Our 1958 United States Supreme Court purported to distinguish the Alabama case from the New York case by taking judicial knowledge that the Ku Klux Klan was engaged in unlawful intimidation and violence, but that, in effect, the NAACP could do no wrong.

Our United States Supreme Court has often stated that where individual freedom ends and state power begins is a delicate decision, and that a restraint upon individual liberties must be justified by clear public interest, U. S. v. Carolene Production Company, 304 U. S. 144, and Thomas v. Collins, 323 U. S. 516. There is certainly clear public interest in our schools and in our taxation. Our United States Supreme Court permits every individual freedom, guaranteed by our Constitution, except those afforded the NAACP, to be regulated and subjected to discipline and control. Yes, our United States Supreme Court permits chambers of commerce, labor unions, benevolent orders, charity organizations, and all other such organizations, even our churches, to be subjected to regulations, control and discipline—all except the NAACP.

We know that the Ku Klux Klan was originally formulated to provide unity strength with which to combat carpet bag rule and return our government to the local people. Even so, the Ku Klux Klan was misused and the true purpose of the organization was abused to the detriment of the people, resulting in disorder, breach of peace, violence and other unlawful activities.

Business people provide unity strength with such organizations as chambers of commerce; laboring people achieve unity strength through labor union; and the Negro people have achieved unity strength through the NAACP organization formulated to better the Negro race. Even so, often the true purposes of the chambers of commerce, labor unions, benevolent orders, charity organizations, churches, and even the NAACP are abused. We know that the NAACP has in some instances engaged in stirring up strife, creating resentment and hatred, and has violated laws for the purpose of supplying the United States Supreme Court with fodder for litigation. I am not a Ku Klux Klan sympathizer, and I do not disapprove of the original time purposes of the NAACP, but I do not believe in allowing the rights of the NAACP to exceed the rights of other such organizations. I am of the considered opinion that the individual freedom of NAACP members should be subjected to the same rules and regulations as members of other worthy organizations, including church members.

The majority of this court recites statements of the trial judge that Act 12 is too broad in its scope to meet Constitutional requirements; that the Act precludes organizations from questioning the state’s power or duty in the operation of its public schools; and that the Act requires the identity of members of the organization who care to question the power or duty of the state in the aforementioned respect. I shall admit that our present United States Supreme Court will, no doubt, declare any legislation Unconstitutional which purports to regulate or restrict the NAACP and its members as other organizations and their members are regulated and restricted. Prior to the United States Supreme Court assuming the role of guardian for the NAACP—right or wrong—Act 12 was Constitutional; and I don’t believe that our State Supreme Court should throw in the towel merely because we know that the United States Supreme Court will declare the legislation Unconstitutional.

I can find no verbiage in Act 12 precluding any organization from questioning the state’s power or duty in the operation of the public schools. For the identity of members of the organizations questioning the state’s power or duty to be made known was consistently approved by the courts until the United States Supreme Court recently assumed the obligation of favoring the NAACP and its members with greater privileges than any other organization in this county. I can find no verbiage in Act 12, as amended, denying the right of any citizen to free and untrammeled access to the courts, or discouraging the exercise of that right, as concluded by the trial judge. I can not reconcile the conclusion of the trial judge that Act 12, as amended, constitutes legislative delegation of authority to the county judges, contrary to Article 4, Section 1, of the Arkansas Constitution. Our legislature has many times delegated investigative and judicial authority to county judges, and our Supreme Court has ruled such legislation Constitutional. It will be noted that the trial judge in this instance ruled Act 13 to be Constitutional while ruling Act 12, as amended, to be Unconstitutional, even though Act 13 delegates similar investigative, enforcement and judicial authority to the Attorney General as Act 12, as amended, delegates to the County Judge. The County Judge, by virtue of the provisions of Act 12, as amended, is authorized to make a judicial determination, after notice and hearing, as to whether an organization is engaged in activities detrimental to the powers and duties of the state of Arkansas to control and operate its public schools. The Attorney General, by virtue of the provisions of Act 13, is authorized to investigate any organization, and, upon procurement of an ex parte order from any Chancery Court, scrutinize the records and activities of the organization, determine whether the organization is evading state taxes or violating laws of the state, and make the evidence obtained available to the courts.

Most legislation delegates enforcement authority, and I respectfully state that there is no way to justify holding Act 13 Constitutional while, at the same time, holding Act 12, as amended, Unconstitutional. Either would be declared Constitutional except for the recent role of the United States Supreme Court in championing the NAACP. The provisions of Act 12, as amended, do not afford discrimination as indicated by the trial judge—the legislation applies to all organizations and all persons without favor or exception. All of us know that were the NAACP excluded from the provisions of Act 12, as amended, and Act 13, the United States Supreme Court would find no difficulty in finding the legislation Constitutional. There just must not be any legislation which will in any wise regulate the NAACP if the present United States Supreme Court can be expected to find same Constitutional.

Act 14 of the Second Extraordinary Session of the Sixty-first General Assembly of the State of Arkansas, Ark. Stat. 41-703-6, prohibits any person who has no direct interest from engaging in, exciting and stirring-up suits and quarrels between individuals, between an individual and the state, or between an individual and any legal entity; prohibits any person committing a breach of the peace for the purpose of creating- litigation; prohibits proposing- that another person institute and prosecute a suit against another person, the state, the nation, or any other legal entity; prohibits encouraging, aiding and abetting commission of breach of the peace for litigation purposes; prohibits financing litigation in which the financier has no interest; and prohibits the institution, prosecution, or maintenance of litigation by a person who has no direct or substantial interest in the relief sought.

Act 16 of the Second Extraordinary Session of the Sixty-first General Assembly of the State of Arkansas, Ark. Stat. 41-707-13, prohibits solicitation or donation of finances, and prohibits receiving or accepting financial assistance for the purpose of encouraging or maintaining litigation. The Act does not prohibit regular employment of an attorney upon a fixed fee or contingent basis. The Act provides that a party-litigant, the court or agency in which the proceeding is pending, may require a party-litigant to execute and file with the court an affidavit that he has not received or conspired to receive assistance as an inducement to prosecute or maintain the action. The Act also provides that a party-litigant, the court, or agency in which the proceeding is pending, may require an involved attorney to execute and file with the court an affidavit to the effect that he is not receiving and will not receive a fee for his services in an action from a source other than his client. The act provides penalties for violation of the Act.

Act 16 provides that no person shall be exempt from attending, testifying, or producing evidence before a Grand Jury, before any court, or in any cause based upon or growing out of an alleged violation of the Act; but that such person shall not be prosecuted or subjected to any penalty concerning any matter about which he is required to testify, produce evidence, or the like. The Act exempts attorneys who are parties to contingent fee contracts with their clients, and wherein the involved litigation concerns title to property, tax matters, common carrier rates, public utilities, criminal prosecutions, and wherein the involved attorney is participating through finances of legal aid societies. The Act prohibits and punishes champerty, maintenance, and barratry, and precludes the solicitation of or stirring up of litigation by those who are not real parties in interest to the subject matter of the litigation.

Barratry, maintenance, and champerty have been prohibited by common law and state statutes for many years; and the evils of barratry, maintenance, and champerty have been condemned by our courts over the years, and also condemned by Canons Rules of Professional Ethics governing attorneys, litigants, and litigation. There is no justification for excluding the NAACP, its attorneys and litigants from barratry, maintenance, and champerty.

Permission to practice law, for instance, is a wonderful privilege, affording a great range of power. A person privileged to practice law holds within his palm the destiny of lives, liberties, and an untold amount of property of others. Attorney activities should be closely regulated. The United States Supreme Court does not question such statements concerning any other than the NAACP.

In the recent case of NAACP v. Button, 371 U. S. 415, seven of the plaintiffs in the Virginia Public School suits testified that they were unaware of their status as plaintiffs, and ignorant of the nature and purpose of the suits to which they were parties. They did not even know their attorneys; and, of course, the NAACP attorneys did not know them. Even though the NAACP was openly practicing barratry, maintenance, and champerty with ignorant people, the United States Supreme Court condoned such actions.

All attorneys have been taught, and most are firm belieyers, that his services should not be controlled or exploited by any agency, personal or corporate, which interferes or intervenes between client and lawyer; that a lawyer’s qualifications and responsibilities are individual ; that a lawyer should avoid all relations which direct the performance of his duties by or in the interest of such intermediary; that his relationship to his client should be personal and that his responsibility should be directly to his client—not through a litigation peddler or canvasser. Solicitation of legal business by the NAACP violates Chapter 33 of Canons Rules of Professional Ethics. In order to permit the NAACP to indulge in barratry, maintenance, and champerty—a privilege not afforded any other organization-—-the United States Supreme Court in the Button case ruled Virginia legislation prohibiting such practice as Unconstitutional.

No this legislation does not curtail access to our courts. It affords justifiable restrictions to the evil practice of barratry, maintenance, and champerty-—-nothing more. The NAACP just does not desire such restrictions.

Precluding a person without true interest from engaging in stirring up litigation, precluding commission of breach of the peace for the purpose of creating litigation, and precluding a financier from engaging-in litigation in which he has no interest, does not impair freedom of thought and action relating to access of the judiciary. I can see no wrong in the court having benefit of tbe true litigants. In fact, the court is entitled to know the true parties to the litigation.

There is no reason why our legislation should preclude unincorporated organizations, such as labor unions, NAACP, and others, from participating in litigation in the names of the involved organizations, and thereby afford the courts knowledge of the true party litigants.

All attorneys should be strenuously regulated for the reasons aforementioned, and for attorneys to be required to abide by professional ethics, court rules and regulations, should not constitute a hazardous operation. Surely, members of the medical profession should not be allowed to run rampant without regulation while they are engaged in activities that control the destiny of people’s lives; and, for them to be so regulated as they are, does not place them in a hazardous profession. The legislation does not preclude assistance to indigent people in need of representation in litigation. In fact, the legislation permits legal aid societies to assist such litigants.

The legislation does not impair the power or right to employ an attorney. The legislation merely prohibits people without an interest from financing litigation. While the legislation requires the organization’s officers and members to testify concerning the records and activities of the organization, such testimony can not incriminate the witnesses for the simple reason that the legislation provides that no such person shall be prosecuted or subjected to any penalty concerning any matter about which he is required to testify.

Actually, the evidence introduced in the trial court in support of contentions of the NAACP that this legislation will violate the Constitutional guaranties of the NAACP and its members is based purely upon speculation and conjecture. The involved legislation has not been enforced; and, therefore, no one knows whether there would be violations of the Constitutional guaranties of the NAACP. Even so, we might as well face the issue head-on and ignore the possibility that there is no justiciable issue, because we realize that the United States Supreme Court will take judicial knowledge, regardless of the evidence, that the legislation is Unconstitutional.

The majority of this Court states, in effect, that because the Supreme Court of Virginia has acceded to the wishes of the United States Supreme Court and declared some of the involved legislation Unconstitutional, and that, because the majority of this court is of the considered opinion that the involved legislation will be declared Unconstitutional by the United States Supreme Court, the Arkansas Supreme Court may as well concede. This line of reasoning is as logical as advising the freedom loving people of Cuba that they may as well join the Communist Party because Castro is going to rule anyway. There is a possibility that our United States Supreme Court will in time return to sound judicial activities, render decisions based upon law and evidence, desist from legislation by judicial ediction, and treat the NAACP as all other such organizations are treated. That will not be possible if we voluntarily join the United States Supreme Court during its present recklessness. I do not believe that we should surrender and, thereby, accelerate the reckless disregard of our present United States Supreme Court for our fundamental democratic principles.

This being my first participation as Justice of an appellate court, I sincerely regret that I can not join in the majority opinion of this court. While I fully appreciate the position of the majority of this court, I must respectfully dissent to the majority opinion. No doubt the majority is influenced by the fact that they have been slapped in the face by recent decisions of the United States Supreme Court to such an extent as to cause them to yield to the United States Supreme Court without further ado. I just cannot condone that philosophy. I realize that the United States Supreme Court will declare the involved legislation Unconstitutional, but I do not believe that we should assist.

Therefore, I respectfully dissent.

Jim Johnson, Associate Justice

(dissenting). I do not agree with the majority opinion. On the merits I would concur with the conclusions reached in the dissenting opinion of Mr. Justice Boyd Tackett. However, in my view it was error to reach the merits since there is absolutely no justiciable issue presented so as to invoke the applicability of Act 274 of 1953 [Ark. Stat. Ann. § 34-2501 (Repl. 1962) et seg.] popularly known as the Arkansas Declaratory Judgment Act. I reach this conclusion notwithstanding the magnanimity of the three-Judge Federal Court’s [Western Division of the Eastern District of Arkansas] deference to this court in its opinion of October 8, 1959.

On February 5, 1960 appellees filed suit in Pulaski Chancery Court against the Attorney General and certain Pulaski County officials praying for a declaratory judgment declaring Acts 12, 13, 14 and 16 of the Second Extra-ordinary Session of the Sixty-first (1958) General Assembly [codified, respectively, as Ark. Stat. Ann. §§ 80-1910, 84-4012 (Repl. 1960), §§ 41-703, 41-707 (Supp. 1961)] unconstitutional and further praying that appellants be enjoined from attempting to enforce the statutes. After trial of the issues presented the Chancellor, on May 15, 1961, rendered a Memorandum Opinion .holding Acts 12,14 and 16 unconstitutional and Act 13 valid. This appeal and appellees’ cross-appeal are the result of that ruling.

For reversal appellants strenuously urge that the trial court erred by granting a declaratory judgment. It is contended that proceedings for a declaratory judgment, are only appropriate where there is a justiciable determinable controversy. Our rule relative to the contention is set forth in the recent ease of Andres v. First Arkansas Development Finance Corp., 230 Ark. 594, 324 S. W. 2d 97, as follows:

‘ ‘ Our declaratory judgment act . . . was not intended to allow any question to be presented by any person: the matters must be justiciable. In Anderson on ‘Declaratory Judgments’ 2d Ed. § 187, the general rule is stated as to declaratory judgments:
“Since purpose of the declaratory relief is to liquidate uncertainties and interpretations which might result in future litigation it may be maintained when these purposes may be subserved. The requisite precedent facts or conditions, which the courts generally hold must exist in order that declaratory relief may be obtained may be summarized as follows: (1) There must exist a justiciable controversy; that is to say, a controversy in which a claim of right is asserted against one who has an interest in contesting it; (2) the controversy must be between persons whose interests are adverse; (3) the party seeking declaratory relief must have a legal interest in the controversy; in other words, a legally protectable interest; and (4) the issue involved in the controversy must be ripe for judicial determination. ’

In the same authority in § 221 at page 488 the rule is stated:

“The Declaratory Judgment Statute is applicable only where there is a present actual controversy, and all interested persons are made parties, and only where justiciable issues are presented. It does not undertake to decide the legal effect of laws upon a state of facts which is future, contingent or uncertain. A declaratory judgment will not be granted unless the danger or dilemma of the plaintiff is present, not contingent on the happening of hypothetical future events; the prejudice to his position must be actual and genuine and not merely possible, speculative, contingent, or remote.”

This logical limitation adopted by our court generally prevails elsewhere. See 26 O. J. S., Declaratory Judgments § 24 et seq.

In the face of this rule the burden was on appellees to prove that there was a justiciable issue and hence a fit subject for declaratory judgment relief. See Am. Jur. Declaratory Judgments, §§ 69-70, Evidence and Trial Issues of Fact. See also 10 R. O. L., p. 897.

It is undisputed that no attempt has been made to apply the acts here complained of against appellees yet appellees contend that the mere fact that Acts 12, 13, 14 and 16 are on the books have adversely affected them in that there had been a loss of memberships and contributions. The principal witness for appellees, through whom it sought to prove appellees’ assertions, was Clarence A. Laws of New Orleans, Louisiana, Field Secretary for the National Association for the Advancement of Colored People. Laws testified to the effect that the Arkansas memberships in his association had been declining since 1956. However, the record shows that the membership increased somewhat in the year 1958, the same years those acts were passed. In fact, the entire context of Laws’ testimony, as well as the testimony of appellees’ other witnesses, upon whom they relied to prove a justiciable issue, shows beyond question that it is entirely speculative as to what caused the drop in membership and the alleged loss of contributions. Therefore, from the record before us, it is impossible for me to conclude that appellees sustained the burden of proving that a justiciable issue existed. The majority opinion to the contrary effectively opens the gate for every special interest group in Arkansas to demand the entire time of the courts of this state in passing upon all statutes which might, in their wildest imagination, affect their special interest. This, of course, is clearly contrary to the intent of the Declaratory Judgment Act and such an abuse as exists in the case at bar should not bear the stamp of approval of this court.

For the reason stated, I would reverse and dismiss.

       The session convened on August 26, 1958, pursuant to a Proclamation of the Governor, which called the session “To consider and, if so advised, enact laws for the following purposes: 1. To regulate the administration and financing of public school and education, and to make appropriation for such purposes. 2. To make appropriation to pay the expenses and per diem of this Extraordinary Session of the General Assembly.”

       The prayer of the complaint was, inter alia, for “. . . a judgment or decree declaring Acts Nos. 12, 13, 14, and 16 of the 1958 Second Extraordinary Session of the General Assembly to be unconstitutional, in that these measures deny to plaintiffs, the classes they represent, contributors, and lawyers engaged in acting in good faith, the equal protection and due process guaranteed by the 14th Amendment to the Constitution of the United States.”

       We have delayed our decision in this case because of the pendency in the Supreme Court of the United States of the case of NAACP v. Robert Y. Button, Attorney General of Virginia, which involved a barratry statute of Virginia similar to our Acts 14 and 16. The Supreme Court of the United States decided the case of National Association for the Advancement of Colored. People v. Button, Attorney General of Virginia, on January 14, 1963. See 371 U.S. 415, 9 L. ed. 2d 405, 83 S. Ct. 328.

       The memorandum opinion of the three-Judge Federal Court is in the transcript before us; and the Judges on that Court were Circuit Judge John B. Sanborn, and District Judges John E. Miller and J. Smith Henley.

       The Attorney General argues in this Court that any issue about Act No. 12 is moot because—says the Attorney General—-Act No. 12 “was entirely superseded by Act No. 225 of 1959.” We find no language in said Act No. 225 which expressly or impliedly repeals Act No. 12; so we consider such argument about repeal to be beside the point at issue here.


author: Ed. F. McFaddin, Associate Justice.

text:
    Mutual Benefit Health & Accident Assn. v. Rowell.
    5-3013
    368 S. W. 2d 272
    Opinion delivered June 3, 1963.

      Barter, Henry, Thurman S McCaskill, and John Harris Jones, for appellant.

      Jay W. Dickey, for appellee.
   Ed. F. McFaddin, Associate Justice.

The appellant insists that there was no sufficient evidence offered by appellee to take this case to the jury. In 1949 appellant, Mutual Benefit Health & Accident Association of Omaha, Nebraska (hereinafter called “Mutual”), for value received, issued to the appellee, Hendrix Rowell, then 41 years of age and a practicing attorney, two policies of insurance, the pertinent provisions of which will be subsequently discussed; and Mr. Rowell regularly paid all premiums due on the policies and was at all times well and active until June 1958. One morning when he attempted to arise from his bed his right leg and arm gave way because of numbness, which gradually disappeared in the course of the day; but the next morning the same thing occurred.

Mr. Rowell consulted several neurosurgeons, and was advised that he had hardening of the arteries and arteriosclerosis of the brain; that nothing was mentally wrong; that if he continued his work as a lawyer the stress and strain could cause paralysis or death; that he should retire from the law practice and all other business activities; that he should get plenty of sleep and rest; that he should not drive an automobile, but could take rides with a driver; and that he was to have regular monthly examinations. All of this was in June 1958; and Mr. Rowell assiduously followed the instructions and directions of his physicians. He filed claim with Mutual on the two policies herein on the basis of total permanent disability, and each month sent a doctor’s report; and Mutual made regular monthly payments of $500.00 on the two policies. These payments began on July 23, 1958, and continued regularly each month until April 23, 1961, when all payments were discontinued.

In September 1961 Mr. Rowell filed the present action for the monthly payments delinquent since April 1961. The defenses of Mutual were: (a) that Mr. Rowell’s disability was due to “mental infirmity,” which was excepted from the policy coverage; and (b) that Mr. Rowell was not “continuously confined indoors,” which was a policy requirement. Trial of the case to a jury resulted in a verdict and judgment for Mr. Rowell for past due payments, penalty, and interest; and Mutual brings this appeal, urging the points now to be discussed.

I. MENTAL INFIRMITY

Mutual insists that it was entitled to an instructed verdict because as it says—all the evidence shows that Mr. Rowell’s disability was due to “mental infirmity.” The insuring clause of each policy contained this language:

“(b) the term, such sickness, as used in this policy, shall mean sickness, the cause of which originates while this policy is in force and more than thirty days after the Policy Date . . . but shall not include . . . mental infirmity ...”

The Trial Court gave its Instruction No. 1, which is not here claimed to be erroneous, and which reads:

“It is stipulated that Hendrix Rowell, plaintiff in this case, is totally disabled to practice law. You shall find for the plaintiff, Hendrix Rowell, unless you further find, as defined by these instructions, that his disability is the result of mental infirmity or that he was not continuously confined, according to other instructions defining said continuous confinement, or was not regularly attended by a licensed physician, as defined by these instructions.”

Mutual insists that the hardening of the arteries of the brain was a “mental infirmity”; and to sustain its argument on this point, Mutual cites and relies on, inter alia, the following cases: Grabove v. Mutual Benefit (Ala.), 1 So. 2d 297; Moss v. Mutual Benefit (Utah), 56 P. 2d 1351; and Lyle v. Reliance Life Ins. Co., 197 Ark. 737, 124 S. W. 2d 958. We find these cases to contain factual situations entirely dissimilar from those in the case at bar, and we consider them of no application. Even though the burden of proof in this ease was on Mutual to establish, by a preponderance of the evidence, its claim of mental infirmity, nevertheless, here is some of the evidence on behalf of Mr. Rowell which we think had direct bearing on this matter of “mental infirmity.” Dr. R. E. Semmes, a recognized neurosurgeon, testified that he examined Mr. Rowell in 1958 and at subsequent times:

“There was no evidence of tumor, clots and so forth. In the absence of any pressure signs to indicate obstructive hydrocephalus, that would be called the dilution of the brain to get larger, the destruction was from degeneration, we can conclude the atrophy was on the basis of loss of circulation of the brain, a diminished circulation; that this in turn was probably due to hardening of the arteries . . . On examination there was a fine tremor of the right hand. There was no neurological deficit. There was some local vessel involvement in his right leg but no true imbalance. Cranial nerves were all intact. Examination of the eye-grounds showed arteriosclerosis of the retinal vessels but no pressure signs. There was no motor or sensory loss nor significant reflex changes . . .
' ‘ Q. Did you prescribe any type of exercise for Mr. Rowell?
A. No specific.
Q. Did you make any suggestion whether he should get outside and to visit?
A. As a general rule everyone needs exercise otherwise the joints and muscles . . . you ... it is both . . . you must get a certain amount of interest with which to keep your physiology going.
Q. Therapeutic?
A. His attitude, his vision, hearing and without all those, (interrupted)
Q. This therapeutic value of exercising and sunshine is beneficial to a person?
A. That is essential . . .
Q. By this arteriosclerosis or hardening of the arteries at any time is there a possibility of a stroke for different sides of your body, different portions of your body?
A. Lack of circulation interferes with any organ and the brain, of course, controls your mental processes and emotional system and your movements and feelings and sight and hearing and judgment and just about everything else.”

Whether by skilled cross examination Dr. Semines’ testimony was weakened was a question for the jury to decide. Furthermore, we mention that Mr. Rowell testified in the trial, both on direct and cross examination, and the jury was able to observe him. His testimony began before lunch, was interrupted by the lunch hour, and was resumed, in the afternoon; and, exclusive of exhibits, occupies 67 pages in the transcript. Thus, the jury had ample opportunity to see whether Mr. Rowell was “mentally infirm.” Certainly a jury question was made; and the jury could well have concluded—as we do—that hardening of the arteries is a physical infirmity, since some of the arteries are a part of the physical body; that when the arteries in the brain harden and a mental atrophy resulted it was the result of a physical infirmity and not a mental infirmity. We find no merit in appellant’s argument on “mental infirmity.”

II. Continuotis Confinement. Each of the policies sued on contain substantially this language as essential to the establishment of Mutual’s liability:

“. . .If the Insured, because of such sickness, shall be continuously confined within doors and regularly attended therein by a legally qualified physician . . .”

In addition to the Instruction No. 1, previously quoted, the Trial Court instructed the jury on this matter of continuous confinement in Instructions Nos. 4, 10, and 13, as follows:

“4. If you find from the testimony in this case that the plaintiff Rowell was advised by a reputable physician or physicians to take a reasonable amount of exercise and to subject himself to fresh air and sunshine, for the best interest of the treatment of plaintiff’s condition from which he suffered, and further advised him to take automobile trips; and if you further find that the plaintiff transacted a limited amount of personal business, and, in good faith relying upon the advice of his physician or physicians, did take short walks and automobile trips, and took a moderate amount of exercise, and subjected himself to fresh air and sunshine, then you are told that this is in compliance with the provisions of the policy providing that the plaintiff must be continuously confined indoors, and you may take this into consideration, along with other evidence, in arriving at your verdict. . . .
‘ ‘ 10. The Court instructs you that if you find from the evidence that the plaintiff has not been continuously confined within doors, as explained in these instructions, or if so confined has not been regularly treated at the place of confinement by a legally qualified physician, then your verdict shall be for the defendant . . .
“13. The Court further instructs you that the burden is upon the plaintiff to prove by a preponderance of the evidence that he has been continuously confined within doors and that he has been under the professional care of a physician therein at such place of confinement as explained in these instructions. If you find that the plaintiff has not met this burden of proof, your verdict shall be for the defendant.”

In March 1961 Mutual employed special investigators to trail Mr. Rowell and watch his every movement, in an effort to see if he was “continuously confined within doors”; and such investigators testified for Mutual in this case. But the testimony of Mr. Rowell and his physicians, as to their prescriptions and advice to him, were sufficient to make a jury question on this matter of continuous confinement within doors. In Occidental Life Ins. Co. v. Sammons, 224 Ark. 31, 271 S. W. 2d 922, we had before us a case in which the continuous confinement clause required the insured to be “absolutely unable to leave the house and yard situated immediately around the house . . .”; and that the insured should not leave such confines ‘ ‘ except to be transported to the office of the physician or surgeon or the hospital or sanitarium ...” In resisting Sammons’ claim, the insurance company showed that he had regularly followed the practice of leaving his house and yard for the purpose of taking rides, walking for recreation, and visiting with friends at various places, but that all such activities, were engaged in upon the advice of his physician; that, from November 11, 1950 to December 30, 1950 he worked and earned $180.00 compensation, but that the work which he did was done upon the advice of his physician. After citing many of our leading eases, we held that Sammons, had not violated the confinement clause of the policy:-

“In giving a ‘liberal’ construction to a house confinement clause in a policy, the Arkansas Court is following the majority view of the Courts in the United. States. Some states give ‘literal’ construction but the great majority of cases have expressly or impliedly rejected the ‘literal’ construction doctrine and have adopted a ‘liberal’ view similar to that of the Arkansas Court. These cases are collected in an annotated form in 29 A.L.R. 2d 1408, in which cases from twenty-seven states are cited following the ‘liberal’ construction view.”

We have previously quoted a portion of Dr. Semines’ testimony as to the fact that certain exercise was of a therapeutic value. Dr. Semines further testified as to his advice to Rowell:

“I thought he ought to keep himself active and get fresh air and a certain amount of exercise and occupy himself as far as he could without running any risks, and to follow the medical indications for hardening of the arteries. ’ ’

Dr. Ceorge Talbot was Mr. Rowell’s local physician in Pine Bluff and, along with Mr. Rowell, made monthly reports to Mutual, which original reports are in the record before- us and are quite enlightening. Mutual knew all along that Mr. Rowell was going to Dr. Talbot’s office and following his instructions. Dr. Talbot testified :

‘ ‘ Q. Did you recommend that Mr. Rowell take exercise and walk from time to time?
A. I did, to be out of his house and move around.
Q. It is therapeutically beneficial to him to get exercise and sunshine?
A. There was no reason to limit him physically, there was no reason to confine him to the house, naturally he would be better off to be out and around.
Q. As Dr. Semmes advised Mm to get exercise you would go along with that?
A. I did.
Q. If lie told him to take occasional trips in a car you would go along with that, it is on the records you sent into Mutual of Omaha, didn’t you?
A. I did.”

Without reciting all of the evidence as to Mr. Eowell’s activities, it is sufficient to say that, under our holding in Occidental Life Ins. Co. v. Sammons, supra, a question was made for the jury as to whether Mr. Eowell was “confined continuously indoors” within the policy coverage. The appellant cites, and strongly relies on our case of Michigan Life Ins. Co. v. Hayes, 231 Ark. 614, 332 S. W. 2d 593, and claims that the Hayes case in effect overrules or materially limits the Sammons case. In the Hayes case the confinement clause was practically the same as in the Sammons case; but the activities of Dr. Hayes were of such a vast and continuous nature that we held that, even on a physician’s advice and prescription, we could not say that a totally disabled person could engage in all of those activities and still claim to be within the language of the confinement clause. We said that the Sammons case went as far in the “liberal construction” as we cared to go, and that the activities in the Hayes case went beyond the pale of activities allowed by the Sammons case. Here is our language:

“To state our position, we simply say that this; Court is unwilling to further extend or further liberalize the interpretation given the confinement clause in theSammons case, i.e., that case represents the ultimate peak of liberal construction which we have approved—or will, approve in future cases. Of course, appellee asserts that this case calls for no more liberal construction than theSammons case. As stated, we disagree with this assertion; but if it be correct — then we are modifying our previous interpretation.”

In the case at bar, the activities of Mr. Eowell, under the advice and direction of his physicians, were not nearly as extensive as those sanctioned in the Sammons, case, so we hold, here, that a question was made for the jury under the Sammons case, and that the activities. here are not to the extent of those in the Hayes case. There was ample evidence to sustain the jury’s verdict.

III. Mutual’s Objections To Instruction No. 4. In Topic II, supra, we copied Instruction No. 4, and noted that Mutual objected specifically to said instruction. We now discuss the point. Mutual claimed that certain expressions in the instruction were indefinite and therefore the entire instruction should have been refused. The appellant seeks a reversal because of its specific objections; but the answer is clear: the Instruction No. 4 was not inherently erroneous; and if the appellant considered the Instruction No. 4 to be “indefinite” in the particulars mentioned, the burden was on the appellant to offer an instruction which eliminated the so-called indefinite words, or to offer instructions which defined the words or expressions which appellant considered to be indefinite. McGee v. Smitherman, 69 Ark. 632, 65 S. W. 461; Western Coal Co. v. Jones, 75 Ark. 76, 87 S. W. 440; and Queen of Ark. Co. v. Malone, 111 Ark. 229, 163 S. W. 771. Appellant offered no instructions to define the expressions claimed to be indefinite.

CONCLUSION

The judgment of the Circuit Court is in all things affirmed; and the sum of $2,000.00 is awarded the appellee as additional attorneys’ fee for services in this Court.

Harris, C. J., not participating.

       In addition, the Trial Court further instructed, as regards mental infirmity, in Instructions 5 and 8, as follows:
      “5. The Court further instructs you that as to the defense of mental infirmity the burden is upon the defendant to prove by a preponderance of the evidence that Hendrix Rowell was suffering from mental infirmity . . .
      “8. The Court instructs the jury that the term ‘mental infirmity’ as used in the policies sued on in this case, means a mental weakness. If you find from a preponderance of the evidence in this case that the plaintiff’s disability or inability to practice his profession is due to ‘mental infirmity,’ then the Court instructs you that your verdict shall be for the defendant.”

       Mutual objected specifically to this Instruction No. 4; and those objections will be discussed in Topic III, infra.

       Here are Mutual’s said objections:
      “To which action of the Court in giving to the jury plaintiff’s written requested Instruction No. 4, the defendant at the time objected specifically in line three the use of the words ‘reasonable amount of exercise’ are indefinite. ‘Reasonable amount of exercise’ might mean going to a gymnasium and exercising as long as he didn’t play handball or something like that. Line six directs, it says, ‘further advised him to take automobile trips’: that is indefinite, it leaves up to speculation on the part of the jury as to what kind of trip and how far he might go; he might take an automobile trip to California and back. The next line, ‘transacted a limited amount of personal business,’ I object to that on the ground that if he is totally disabled he couldn’t transact any personal business. Then on the question of ‘moderate amount of exercise’ again as used in the tenth line, I object to that on the ground that it is indefinite and doesn’t give the jury any basis upon which to determine the facts. I object to it specifically on the ground that the doctor or any doctor does not have any right to rewrite the insurance contract.”


author: George Rose Smith, J.

text:
    Bass v. Farrell.
    5-2962
    370 S. W. 2d 54

    Opinion delivered June 3, 1963.
    [Rehearing denied September 9, 1963.]

      Macon db Moorhead, for appellant.

      James B. Sharp and Moncrief <& Moncrief, for appellee.
   George Rose Smith, J.

This is the third appearance in this court of a chain of litigation that has been in progress between the appellant Bass and the appellee Willey and others for some eighteen years. The dispute is over the ownership of a tract of land, originally formed by accretion, that now lies at some distance north of the Arkansas River, in Arkansas County. This appeal is from a decree finding that the appellant Bass has no claim to the land in controversy (and thus, by implication, recognizing the ownership of the appellees, who derive their title from C. F. Willey, now deceased).

The earlier phases of this litigation bear upon the present appeal and must be briefly reviewed. In 1946 C. F. Willey, in a suit to enjoin Bass from cutting timber, obtained a default decree finding that Willey was the owner of Section 1, Township 8 South, Range 4 West, and “all accretions adjoining or contiguous thereto.”

In 1947 Bass was cited for contempt, for an asserted violation of the court’s injunction. Bass defended the contempt citation by attempting to prove that the 1946 decree was a nullity. It was Bass’s theory then, and it is his theory today, that long ago—perhaps as far back as the 1880’s—the tract that had been originally surveyed by the Government as Section 1 was completely eroded away by a gradual northward movement of the Arkansas River, which eventually crossed all of Section 1 and ate away not only that section but also most of Section 36, Township 7 South, Range 4 West, lying just north of Section 1 and being later owned by Bass.

Bass has attempted throughout the litigation to prove that the river, after having reached its line of maximum progress to the north, then gradually retreated southward and re-created land that re-emerged not as Section 1, which had become nonexistent, but as an accretion to Section 36 and to other lands that Bass now owns along the line of the river’s farthest advance to the north. Upon this hypothesis Bass contended that the 1946 default decree, in referring to Section 1 and its accretions, actually described no land at all, so that the decree was void.

The chancellor rejected Bass’s attack upon the 1946 decree. Upon the first appeal we affirmed the chancellor’s action but confined our decision to a single point, holding that Bass was estopped to deny the existence of Section 1 for the reason that Bass himself had recognized the existence of the section by having purportedly conveyed it to Willey in 1930. Bass v. Willey, 216 Ark. 553, 226 S. W. 2d 980.

Soon after our decision upon the first appeal Willey again instituted contempt proceedings against Bass. By filing a counterclaim Bass became the real plaintiff in the case; that is still his position. He contends that even though he is estopped to question the existence of Section 1 the estoppel does not extend to the accretions thereto, because those accretions were not mentioned in the 1930 deed that gave rise to the estoppel. Hence Bass insists that he be permitted to prove that the tract now in dispute accreted not to Section 1 but to the more northerly land owned by Bass.

This contention was at first rejected by the chancellor, upon a plea of res judicata. On the second appeal we reversed that decree, holding in essence that whether this tract accreted to Section 1 or to Bass’s lands was an issue of fact upon which Bass had never had his day in court. Bass v. Willey, 227 Ark. 1025, 304 S. W. 2d 943.

On remand the parties built up an extensive record, with many exhibits, in their efforts to trace the wanderings of the Arkansas River since this area was surveyed by the Government in 1819. It is still Bass’s contention that Section 1 was eaten away long ago by the northward movement of the river, that when the river retreated southward even past its 1819 channel the land in dispute was formed as an accretion to lands now owned by Bass, and that the estoppel stemming from Bass’s 1930 conveyance of Section 1 does not preclude him from asserting that the tract in controversy was never an accretion to Section 1. The chancellor, by the decree now on review, dismissed Bass’s claim to the land.

The facts are not simple. That they may be more easily understood we are inserting in this opinion, as Figure 1, a greatly simplified reproduction of one of the principal exhibits in the record.

Both Section 1 and Section 36, as surveyed by the United States in 1819, are shown in heavy lines. The irregular shape of these small fractional sections was due to the fact that in 1819 they were bounded on the west by the Arkansas River and on all other sides by Spanish land grants that had been made before the Louisiana Purchase. The tract in dispute, marked by the corners

ABC®, is also shown in heavy lines. It should he added that although the common boundary between Section 36 and Section 1 appears to extend all the way to the western border of the land in dispute, the testimony indicates that the northwest corner of Section 1 is actually about 180 feet east of the western edge of the land in dispute, so that the land in dispute is contiguous to Section 36 for a distance of about 180 feet.

Deferring for the moment the appellant’s arguments with respect to the 180 feet of contiguity just mentioned, we are of the opinion that Bass has not succeeded in escaping the estoppel that came into being in 1930 when he undertook to convey Section 1 to Willey. Even though that deed made no express reference to accretions, we held in Towell v. Etter, 69 Ark. 34, 59 S. W. 1096, 63 S. W. 53, in the opinion on rehearing, that a conveyance of a tract of land by its legal description carries the accretions thereto unless they are specifically excepted. Hence it is not possible to limit Bass’s estoppel to the original boundaries of Section 1, for the reference in his deed to Section 1 must be taken to be a reference to the accretions as well.

Moreover, the 1946 default decree confirmed Willey’s title to Section 1 and “all accretions adjoining or contiguous thereto.” As a result of Bass’s estoppel Section 1 must be deemed to have existed, as far as the litigants and the court were concerned. We must attach some meaning to the explicit decretal reference to accretions. Unless that reference was meant to encompass the greater part of the tract in dispute (all except the west 180 feet), we are unable to see that this language in the decree had any significance at all. ■ •-

As we have said, the testimony indicates that the northwest corner of Section 1 is really about 180 feet east of point A on the western border of the land in dispute. This leaves a corridor through which the tract in controversy may be connected with Bass’s land in Section 36. The appellant forcefully argues that, under the rule governing the apportionment of accretions, he should be awarded a strip 180 feet wide along the west side of the tract in dispute, upon the theory that this strip was an accretion to Bass’s Spanish Grant No. 2334.

The basic rule for apportioning accretions is well understood. It is first necessary to determine what proportionate part of the old bank was owned by each riparian proprietor. The new bank is then divided in the same way by assigning to each proprietor his proportionate share. The division is completed by drawing-lines to connect the points so fixed upon the new bank with the corresponding points of ownership upon the old bank. Hamilton v. Horan, 193 Ark. 85, 97 S. W. 2d 637.

Bass relies upon the apportionment shown in Figure 1, which is based upon one of Bass’s exhibits. This particular apportionment was made in 1918 by a surveyor named Keaton. What Keaton did was to treat the Line of Maximum Recession (the line of the river’s greatest northward progress) as the old bank. The 1918 bank of the river, in between its two points of intersection with the Line of Maximum Recession, was treated as the new bank. Keaton then followed the basic rule of apportionment in dividing the new bank and in drawing his lines. It will be seen from the lines of apportionment on Figure 1 that most of the land in dispute was considered to be an accretion to Spanish Grant No. 2334 and to the small triangle of Section 36 that lay north of the Line of Maximum Recession.

There are two fatal defects in the appellant’s argument. In the first place, there is no sound reason why Keaton’s 1918 apportionment should be accepted as controlling today. The record does not show why Keaton undertook the apportionment. Perhaps his purpose was to fix the boundary between the land now in dispute and the land lying immediately to the west (referred to as the Anderson-Tully Company property)- The fact that Keaton’s line is still the boundary between these two tracts suggests that his purpose was to fix that boundary.

There is no showing, however, that Keaton’s apportionment was accepted by or even known to the owners of the land now in question. If the apportionment had become binding upon those landowners, either by agreement or by court action, then of course title would have vested and the division would have become a new starting point for the apportionment of future accretions. There is no such proof. The river seems to have been changing its course continually ever since 1819. An apportionment made at any particular time would not divide the accretions in the same way as another apportionment made several decades later. There is no reason today to go back to the particular point in history when Keaton made his survey and to declare that the conclusions he reached somehow became binding for all time upon the owners of the tract now in dispute.

The second flaw in Bass’s argument is equally serious. The Keaton apportionment, in order to be an equitable division of the accretions, must rest upon the assumption that this whole segment of the river constituted a fairly straight line as it gradually moved northward, until it finally flowed in a direct course along the Line of Maximum Recession, etching out that escarpment before beginning its retreat to the south.

We are convinced by the record that this is not what actually happened. Instead, the Line of Maximum Recession was eroded over a period of many years by the northernmost tip of a loop in the river that traveled from west to east. This loop was part of the main channel until it was cut off by an avulsion in 1926 and became an oxbow lake, shown upon Figure 1 as Moody Old River.

On this point the most convincing proof in the record is a number of aerial photographs, the earliest one having been taken in 1930. In these photographs there are plainly discernible lines of erosion, on the upstream side only, that exactly parallel the curving sides of the loop that is now Moody Old River. It is hardly possible for one to study these pictures without becoming convinced that this loop in the stream, which may have had its origin in the bend that appears in Figure 1 as the 1819 channel, did in fact travel downstream, from west to east.

This conclusion is entirely reasonable. It is a matter of common knowledge that a bank is eroded by the pressure of the current against the shoreline. This pressure is naturally apt to be greater on the downstream sides of the loop, causing the oxbow to travel in that direction. Apparently this phenomenon is perfectly well understood, for textbooks upon the subject merely observe as a matter of accepted fact that individual meander loops tend to shift downstream. See Schultz & Cleaves, Geology in Engineering (1955), p. 151; P. R. Van Frank, Random Notes on Improvement of Rivers (1933), p. 124.

The general rule of apportionment, involving the drawing of lines from the old bank to the new, is not to be followed inflexibly, even to the point of injustice. It will not be applied, for example, if there are such irregularities in the shoreline as to make the resulting division inequitable. Malone v. Mobbs, 102 Ark. 542, 146 S. W. 143, Ann. Cas. 1914A, 479.

Keaton’s apportionment is untenable, because it involves the mistaken assumption that these accretions were formed as the river moved from the north to the south. But if, as we think to have been the case, the loop really moved from west to east, then the accretions formed in that direction, and for the purpose of an apportionment the old bank would be the trailing edge of the loop at some selected point in its progress. In that event the lines of apportionment would necessarily run in an easterly or southeasterly direction, so that the land in dispute could not be considered as an accretion to Bass’s lands to the northeast.

As the real plaintiff, Bass had the burden of recovering upon the strength of his own title. The chancellor was right in concluding that that burden was not met.

Affirmed.

Harris, C. J., not participating.


text:
    Hartsook v. Owens.
    5-3033
    370 S. W. 2d 69
    Opinion delivered June 3, 1963.
    [Rehearing denied September 9, 1963.]

      George E. Pihe, for appellant.

      Wilbur Botts, for appellee.
   George Rose Smith, J.

Guy Hartsook died intestate on July 13, 1961. In November his half-brother, the appellee, filed a claim against the estate in the amount of $1,050.00, based upon a check that had purportedly been given by the decedent to the appellee on December 20, 1960. The administratrix disallowed the claim, but upon trial of the matter in the probate court the claim was allowed. This appeal is from the order of allowance.

It is first contended that the check became a nullity as a result of the appellee’s failure to cash it within six months after its date. This contention is based upon the statutes that relieve a bank of the duty of cashing checks more than six months old. Ark. Stat. Ann. § 67-534 (Repl. 1957); Ibid. § 85-4-404 (Add. 1961). These statutes were adopted for the protection of the bank and plainly do not have the effect of extinguishing a valid obligation merely because it is more than six months past due. Such a holding would create an extremely short statute of limitations where none was intended by the legislature.

The close question in the case is whether the weight of the evidence is contrary to the court’s finding that the check in question bears the genuine signature of Guy Hartsook.

Owens identified the cheek and testified at some length, but much of his testimony was objected to as being in violation of the dead man’s statute and cannot be considered. Ark. Const., Schedule, § 2. The claimant’s principal witness was his grown daughter, who testified positively that she was present when the check was prepared, signed, and delivered in her parents’ home. The check itself bears a notation that it was given for the payee’s part in certain farm machinery.

The appellant called the president of the decedent’s bank as a handwriting expert, but his testimony is hardly favorable to either side. At first, after having compared the 1960 cheek with an earlier one written in 1949 and with a still older signature card, the witness stated that, he doubted if the signature upon the check in issue was genuine. On cross-examination, however, the witness readily admitted that a person’s signature changes with age. After having been shown a postcard assertedly signed by the decedent in 1961, this witness indicated that the signature on the questioned check bore a greater resemblance to the nearly contemporaneous postcard signature than to the much older specimens of Hartsook’s handwriting. The court observed that in his opinion the signatures upon the decedent’s more recent checks would be entitled to great weight. It is not without significance that the administratrix failed to produce any such fresh evidence.

The rest of the appellant’s proof is circumstantial, tending to show that Hartsook and Owens had not farmed together since about 1952, that their purchases of farm machinery had been made separately, and that therefore the obligation recited upon the face of the instrument probably did not exist.

The case has given us much anxiety, but after studying the record we are unable to say that the trial court’s finding is against the preponderance of the testimony. The probate judge had the great advantage of seeing the witnesses as they testified. He was thus in a much better position than we are to decide whether Owens’s daughter was telling the truth and whether Owens himself was attempting to commit a deliberate fraud against his brother’s estate. The appellant’s circumstantial proof does not succeed in making it difficult for us to believe that the transaction in question, between brothers, really took place. With the conflicting evidence evenly balanced it is our duty to leave the trial court’s findings undisturbed. Brewer v. Yancey, 169 Ark. 816, 277 S. W. 11.

Affirmed.