author: Paul Ward, Associate Justice.

text:
    Dilk, Individually and as Admx. v. Scott.
    5-825
    286 S. W. 2d 9
    Opinion delivered January 23, 1956.

      Edwards <& Edwards, St. Louis, Mo.; Linwood L. Brichhouse, Paul L. Barnard, for appellant.

      Earl J. Lane, for appellee.
   Paul Ward, Associate Justice.

This appeal challenges the validity of a divorce decree rendered in the Circuit Court, City of St. Louis, Missouri, on October 5, 1948. Appellee [then Helen Edwards] married Moe Kanner on October 9,1948 in the. State of Missouri. Soon thereafter the Kanners moved to Hot Springs, Arkansas where, on July 6, 1951, they purchased property on Lake Hamilton, in Garland County, valued at Fifteen or Twenty Thousand Dollars. This property was conveyed to them by warranty deed in which the granting clause read: “. . . do hereby grant, bargain, sell and convey unto the said Moe Kanner and Helen Kanner, husband and wife, as tenants by the entirety . . . ” Moe Kanner died August 19,1951, and Helen Kanner married Dr. Jett 0. Scott of Hot Springs on September 20, 1952.

At his death Moe Kanner was survived by his daughter and only heir, Lauretta Kanner Dilk, who instituted this action as an individual and as administratrix of the estate of her father. For the purpose of this opinion Ave will treat her in the capacity of an individual only.

In 1929 appellee Avas married to one Raymond D. Edwards with whom she lived for only a few months. On or about June 30, 1948, appellee filed a petition for divorce in the Missouri court above mentioned and on October 5, 1948 she Avas granted a decree of divorce from the said Raymond D. Edwards.

On July 19, 1954, Lauretta Kanner Dilk instituted this action in the Chancery Court of Garland County, Arkansas to recover one-half of the property above mentioned as the sole heir of her father, Moe Kanner. It Avas and is the contention of appellant that appellee’s divorce from Raymond D. Edwards was null and void and that, consequently, appellee Avas not the legal Avife of Moe Kanner when the property above mentioned was purchased by them. Alleging these facts to be true it is further alleged and contended that appellee and Moe Kanner did not own the said property as tenants by the entirety but merely as tenants in common. Appellee’s contention is that her divorce from Edwards was valid, that she and Moe Kanner owned said property by the entirety, and that at his death she became the owner in fee of all of the property by right of survival.

Aside from the question of laches pleaded by appellee, which it is not necessary to consider in this opinion, it is agreed by both parties that the only question for our consideration is the validity of the decree of divorce obtained by appellee from Edwards in the Missouri court. The trial judge refused to set aside the said divorce decree and we have concluded that the decree of the trial court must be affirmed.

It is the contention of appellant that the Missouri divorce decree is null and void and should be so declared by this court for the alleged reason that the procedure in the Missouri court to obtain service on Raymond D. Edwards by publication did not meet the requirements of the Missouri statute pertaining thereto.

In her brief appellant sets out the pertinent portion of Paragraph 3 of Section 506, 160 Mo. Rev. Stats. 1949 which pertains to service by publication. This section of the Missouri Statute provides for several alternative requirements to be met in procuring service by publication but only the ones pertinent to this case will be mentioned. It requires that the plaintiff or some person for the plaintiff shall allege either in a verified petition or an affidavit that: (1) The defendant is a non-resident of the State, or; (2) The defendant has “absented [himself] from [his] usual place of abode in this State.” In the latter event the defendant’s address must be shown, if it is known, or, if unknown, it must be so stated. After the showing is made the statute provides that “the court or judge or clerk thereof shall issue an order of publication of notice . . .”

Appellant, conceding this action to he a collateral attack on the Missouri divorce decree, still strenuously contends that under the Missouri law at least one of the above specified requirements must he met before the trial court could obtain jurisdiction and that it was not done in this case, citing extensively from Orrick v. Orrick, Mo. App., 233 S. W. 2d 826, and Kunzi v. Hickman, 243 Mo. 103, 147 S. W. 1002. As we read the Kunsi case, supra, the principal holding there, as it is pertinent to appellant’s contention here, is: First the court laid down the general rule of law that:

“. . . the courts will presume, in a collateral proceeding, that a court of general jurisdiction properly acquired jurisdiction over the parties to the proceedings therein, nevertheless that presumption must yield and give way under the positive evidence disclosed by the record therein showing that no service whatever was had upon them. Or in other words, the recitals of jurisdiction or of service of process contained in the judgment must be construed in connection with the whole record, and may be overthrown by other recitals in the record of equal dignity and importing equal verity showing that the former recitals are untrue.”

Relying upon the above pronouncement the essence of appellant’s contention is that the record here shows positively that the Missouri court had no jurisdiction to render the said divorce decree. Without disagreeing with appellant as to the Missouri law in this connection, we cannot agree with appellant as to what the record shows in this case. In other words we do not agree that the evidence in the record before us shows positively that the Missouri court did not have jurisdiction. On the other hand we think the record shows just to the contrary. Let us therefore examine the record on this point.

(a) Appellee’s verified petition in the divorce case contains the allegation that Raymond D. Edwards “absented himself from their usual place of abode . . . since the date of the separation” in 1929. It will be noted that this allegation is the exact language used in the statute quoted above with the exception that it does not contain the words, “in this state.” It appears to us that this deletion is immaterial for it is clearly stated in another part of the petition that Mrs. Edwards resided in the State of Missouri. Moreover, it is further stated in the petition that the “whereabouts of this defendant are unknown to her so that the ordinary process of law cannot be served on him in this state and she prays that an order of publication be granted ... in compliance with the statutes . . .” (b) The minutes of proceedings in the Missouri case show that the Order of Publication was granted pursuant to the above prayer. This order is not shown in the record but it is not contended by appellant that it was not in proper form and content as required by law. (c) The same minutes show that the proof of publication was made. This proof was not introduced in the record but again there is no contention that it is not proper in all respects, (d) The record contains an affidavit of Raymond D. Edwards’ “attorney and agent” stating that “the defendant [Edwards] was employed at a race track in the eastern part of the country. ’ ’

Thus it appears that the Missouri court in said divorce proceeding must have felt justified in issuing the order of publication, and, after examining the petition, the affidavits, the order and proof of publication, it must have felt that it had jurisdiction to enter the decree of divorce on October 5, 1948. We think the record before us shows affirmatively that the Missouri court did have jurisdiction. Taking all the allegations in the petition and in the affidavit it conclusively appears that plaintiff was a resident of Missouri, that the defendant was not a resident of Missouri, that he had absented himself from his usual place of abode in Missouri and that his address was unknown. Not only does it so appear but we are also entitled to presume that the other papers mentioned in the divorce proceeding, but not shown in this record, may have contained information which gave the trial court jurisdiction.

In the case of Ray v. Ray, et al., 330 Mo. 530, 50 S. W. 2d 142, the Supreme Court of Missouri said: “Our circuit courts are courts of general jurisdiction, and the prevailing rule is that in a collateral attack upon a domestic judgment of a court of general jurisdiction every reasonable presumption is indulged to support the judgment.” The court then quoted with approval: “ ‘It accordingly will be presumed that all the facts necessary to give the court jurisdiction to render the particular judgment were duly found and that every step necessary to give jurisdiction has been taken.’ ” We have carefully examined the holdings in the Orriclc and Kunsi cases, supra, and do not find that they are in any way contrary to the conclusion we have reached herein. The Orriclc case, supra, was an opinion by the Court of Appeals and was considering a direct attack upon the decree of divorce. The Kunsi case, supra, is readily distinguishable on the facts from the case under consideration. There the records of the first trial showed affirmatively that the trial court had no jurisdiction to render a decree, while in the case under consideration not only is jurisdiction in the trial court shown by the record but by the presumption which we are entitled to draw from records not introduced.

Other decisions of the Supreme Court of Missouri are in accord with the conclusion which we have reached. In the case of Sanders, et al. v. Savage, 234 Mo. App. 9, 129 S. W. 2d 1061, the court said: “ A judgment is not subject to collateral attack unless it affirmatively appears upon the face of the record that the court rendering judgment did not have jurisdiction of the subject matter or the person of the defendant, in which event the judgment is void. ’ ’ In Drummond, et al., v. Lynch, et al., 82 F. 806, the court, in dealing with a Missouri decree, after first stating that the recitals of the judgment record of a foreign judgment are not conclusive as to jurisdiction, stated: ‘ ‘ The inquiry, however, must be confined to jurisdictional infirmities which would render the decree void, it cannot be here refused or impeached for mere irregularities. ’ ’

In questions of this nature it is our understanding of the Missouri rule, as well as the general rule, that it is our duty to inquire whether the trial court in the first instance had jurisdiction and not whether the publication statute was complied with, and that jurisdiction may be determined from the entire file of the first proceeding if it appears in the record, or from the presumption of jurisdiction that attaches to all judgments when collaterally attacked in the absence of material parts of the file in the first proceeding.

There are good reasons founded in public policy to support the rule that judgments of courts of record, particularly in divorce matters, should not be lightly regarded and should not be revoked for mere irregularities. In the case before us appellee certainly had every reason to believe that she had secured a valid divorce from Edwards in 1948, and relying on this belief she married Kanner and after his death married Dr. Scott. If the Edwards divorce decree is now nullified it is obvious that appellee will find herself in an embarrassing position.

We could not use words to express this concern of public policy more appropriate than those used by the Supreme Court of Missouri in McDermott v. Gray, 198 Mo. 266, 95 S. W. 431, where that court said:

“While there may be objections urged against the liberality of our divorce laws, in furnishing an easy method of dissolving the marriage relation, yet as long as the law exists and courts pronounce judgments in obedience to it dissolving such marriage relation, the tendency of the American courts is to regard such judgments as possessing elements of strength and stability which frequently do not attend other decrees and judgments. This is but a proper recognition of the principle of public policy which has repeatedly been respected by the courts for the reason that such decrees and judgments affect directly the status of the married persons by dissolving the marriage relation and thereby enabling them to contract new matrimonial relations with other and innocent persons. Therefore, such decrees and judgments should not be dealt lightly with. To do so would endanger the peace and good order of society, as well as the happiness and well being of those who have a right to rely upon the stability of such decrees.”

It is therefore our opinion that the decree of the trial court refusing to set aside the divorce decree of the Missouri court is not against the weight of the testimony.

Affirmed.


source: Caselaw Access Project

author: Sam Robinson, Associate Justice. Minor W. Millwee, Associate Justice,

license: Public Domain

text:
    Washburn v. Hall, Secretary of State.
    5-819
    286 S. W. 2d 494
    Opinion delivered January 23, 1956.
    [Rehearing denied February 27, 1956.]

      Talbot Feilcl, Jr., Meehan & Moorhead, for petitioners.

      Tom Gentry, Attorney General, for respondent.

      Bailey, Warren <fk Bullion, for intervenors.
   Sam Robinson, Associate Justice.

A petition for a referendum on Act No. 94 of the Acts of the General Assembly of Arkansas for 1955 was filed with C. G. Hall, Secretary of State. Acting upon the opinion of the Attorney General that the petition was insufficient because no popular name or ballot title was designated, the Secretary of State refused to certify it to the election officials. Contending that the petition is valid in every respect, Alex H. Washburn, and others, have filed an original action in this Court to compel the Secretary of State to certify the petition. The Attorney General, on behalf of the Secretary of State, has responded. Joe Ray, and others, Officers and Directors of the Arkansas Poultry Federation, have filed an intervention. The principal point in issue is whether Amendment No. 7 to the Constitution of Arkansas and Act No. 195 of the General Assembly for 1943, Ark. Stats. Sec. 2-208, have been complied with by the sponsors of the referendum petition.

Amendment No. 7 reserves to the people the right to refer and initiate laws; with reference to the petition to submit a measure to a vote of the people, the Amendment provides: “At the time of filing petitions, the exact title to be used on the ballot shall, by the petitioner, be submitted with the petition . . .” This amendment was adopted at the General Election in November 1920; it is in substitution of the I. and R. Amendment approved February 19, 1909. The enabling act for the 1909 amendment, Act No. 2 of the Extraordinary Session of the General Assembly for 1911, is repealed only in so far as it is in conflict with the 1920 amendment. Westbrook v. McDonald, 184 Ark. 740, 43 S. W. 2d 356, 44 S. W. 2d 331. We mention the 1911 Act at this point because Section 2 thereof provides: “The petition and order for referendum shall be substantially in the following form.” Then follows the form that must be used in preparing the petition.

In 1943, the General Assembly adopted Act No. 195, which is now Ark. Stats. § 2-208. It provides: “Before any initiative or referendum petition ordering a vote upon any amendment or act shall be circulated for obtaining signatures of petitioners, the sponsors shall submit the original draft thereof to the Attorney General, with a proposed legislative or ballot title and popular name. The Attorney General shall, within 10 days, approve and certify or shall substitute and certify a more suitable and correct ballot title and popular name for each such amendment or act; the ballot title so submitted or supplied by the Attorney General shall briefly and concisely state the purpose of the proposed measure. If the Attorney General refused to act or if the sponsors feel aggrieved at his acts in such premises, they may, by petition, apply to the Supreme Court for proper relief.

As heretofore mentioned, the act which petitioners seek to refer is Act No. 94 of the Acts of the General Assembly of 1955. The substance of this act is that it exempts all feedstuffs used in growing or producing livestock and poultry from what is known as the Gross Receipts Tax Act and the Arkansas Compensating Tax Acts, otherwise the Sales Tax. On April 1, 1955, Mr. Wash-burn, one of the petitioners, wrote to the Attorney General as follows: “I submit herewith an original draft of a petition for a referendum on Act No. 94 of 1955 for your consideration in accordance with Sec. 2-208 Ark. Stats. 1947.” With the letter was enclosed the original draft of the petition. The petition is headed in bold face capital letters: ‘ ‘ PETITION FOR REFERENDUM. ’ ’ Then printed under the above is: “ Sales Tax Exemption for Livestock and Poultry Feed.” Following, in very small print is: “This law was House Bill No. 222 by Teague of Carroll, et al.” Next is the petition itself and following the petition is: “Act No. 94, approved February 22, 1955 ’ ’; thereafter is set out the act in full, including the title and enacting clause. On April 5, 1955, the Attorney General wrote to Mr. Washburn: “I have examined your form for petition for referendum on Act No. 94 of 1955 and in accordance with Ark. Stats. 1947 (2-208), the same as submitted is hereby approved.”

Nothing is mentioned in either the letter from Wash-burn to the Attorney General or from the Attorney General to Washburn about a popular name or ballot title. The sponsors of the petition proceeded to obtain signatures thereto and when a sufficient number were obtained, the petition was filed with the Secretary of State. There immediately arose the question of whether Amendment No. 7 and Ark. Stats. Sec. 2-208, Act 195 of 1943, had been complied with in respect to obtaining the approval of the Attorney General as to the popular name and ballot title before the petition was circulated. The Secretary of State promptly asked for the Attorney General’s opinion about the matter. The Attorney General answered the Secretary of State as follows: “It is my opinion that, since the sponsor has not submitted a ballot title and popular name as required by Section 2-208, and has not submitted a ballot title to the State Board of Election Commissioners as required by the 7th Amendment, as Secretary of State or as a member of the State Board of Election Commissioners, you have no authority to certify, order or place this question on the ballot as the provisions of the Constitution and Statutes which h'ave not been complied with are mandatory.” The Secretary of State, in accordance with the opinion of the Attorney General, refused to certify the petition to the election officials. Shortly after receiving a letter from the Secretary of State refusing to certify the petition, the sponsors filed this original proceeding. It is the contention of the petitioners that the sub-heading on the petition “Sales Tax Exemption for Livestock and Poultry Peed” is the popular name and, since the act itself contains a title, this title should be considered as the ballot title; and that, in any event, the petitioners should be allowed to amend the petition by designating a popular name and ballot title.

Act No. 195 of 1943, Ark. Stats. § 2-208, is no unwarranted restriction on Amendment No. 7. Obviously, the Legislature considered that in signing a referendum or initiative petition the signer should have the benefit of a popular name and ballot title that would give as much information about the proposed act as is possible to give by such means. It is apparent that the Legislature considered that the safer method would be to first submit the proposed popular name and ballot title to the Attorney General of the State for his approval and, if he did not approve that which was submitted, he should substitute and certify more suitable ones. This statute in no way curtails the operation of Amendment No. 7 but is in aid of the amendment and insures the giving to the signer of the petition as much information as is possible and practicable with regard to what he is being asked to sign. Here, the Attorney General was not asked to approve a popular name or a ballot title. Nothing was pointed out to him as a popular name or ballot title which the circulators of the petition intended to use as such. The Attorney General says that he was not asked to approve or disapprove a popular name or ballot title and that he has not done so; that he only gave his opinion as to the form of the petition. The form of the petition is set out by Act No. 2 of the Extraordinary Session of 1911, and that part of the Act as to the form of the petition was not repealed by the 1920 amendment to the Constitution.

It is clear that the framers of Act 195 of 1943 intended that the Attorney General should pass on the sufficiency of the ballot title and the popular name before the petition is circulated. The Act provides: “If the Attorney General refused to act or if the sponsors feel aggrieved at his acts in the premises, they may, by petition, apply to the Supreme Court for proper relief.” There is nothing complicated about Act 195; it is not difficult to follow; it is not calculated to make troublesome the right to take advantage of the I. and B. Amendment. It goes without saying that before any one could safely undertake to refer a measure to the people it would be necessary to review the Constitution and the Statutes pertaining to such referendum. It would be very easy to say to the Attorney General: “Now here is what we propose as a ballot title and this is what we propose as a popular name.” And the Attorney General would be required to either approve that which had been submitted or substitute something else. If the sponsors should feel aggrieved at his acts, they would have the right to apply to the Supreme Court for proper relief. This is not a contest between the Attorney General and the sponsors of the referendum petition. It must be remembered that Act No. 94 was adopted by the General Assembly of the State of Arkansas; and the sponsors of the Act, who we presume are the intervenors here, have some rights in the matter. If the Attorney General approved a ballot title and popular name that was calculated to be misleading or not suitable to the question to be voted on, there would be a remedy in the courts. But those interested in the adoption of the measure could hardly attack a popular name or ballot title when neither had been designated as such; and, especially so, when the Attorney General had not passed on a ballot title or popular name and in fact states that he had not been requested to give an opinion in respect to such title and name.

Petitioners cite Coleman v. Sherrill, 189 Ark. 843, 75 S. W. 2d 248, where a petition to initiate a county salary act was filed with the County Clerk. It appears that the act as filed had a title which was sufficient to convey a fair meaning of the act; but such title was not designated as a ballot title. The Court held that although the title of the act was not designated the ballot title, there was substantial compliance with Amendment No. 7. This was also the holding in Blocker v. Sewell, 189 Ark. 924, 75 S. W. 2d 658; but both of those cases were decided many years prior to the adoption of Act No. 195 of 1943, Ark. Stats. § 2-208.

The ballot title should be complete enough to convey an intelligible idea of the scope and import of the proposed law, and it ought to be free from any misleading tendency, whether of amplification, of omission, or of fallacy, and it must contain no partisan coloring. Westbrook v. McDonald, 184 Ark. 740, 43 S. W. 2d 356, 44 S. W. 2d 331. See also Sturdy v. Hall, 204 Ark. 785, 164 S. W. 2d 884; Bradley v. Hall, 220 Ark. 925, 251 S. W. 2d 470. The proposed popular name and ballot title should be submitted specifically to the Attorney General in order that he may determine whether the name and ballot title meet these requirements.

In Sturdy v. Hall, 201 Ark. 38, 143 S. W. 2d 547, Mr. Justice Prank Smith said: “It appears, therefore, that a very small per cent of our population may, at each general election, assemble the electorate into both a general assembly and a constitutional convention. The law must, therefore, be, and is, that if a power so great may be exercised by a number so small, a substantial compliance with the provisions of the Constitution conferring these powers should be required. ’ ’ And it might be added that there should be substantial compliance with the statutes enacted in aid of the Constitution. “The great body of the electors, when called upon to vote for or against an act at the general election, will derive their information about it from the ballot title. This is the purpose of the title.” Westbrook v. McDonald, supra. There should be no confusion, no uncertainty, nothing indefinite, about what is designated as the popular name and ballot title when the petition is presented to the Attorney General. The popular name and ballot title should be called to the Attorney General’s attention specifically so that he may act in accordance with the statute. Here, this was not done and the Attorney General has rendered no opinion approving a popular name or ballot title and the Secretary of State correctly refused to certify the petition to election officials.

As to petitioners’ contention that time should be allowed to amend the petition for referendum by designating a popular name and ballot title, Ark. Stats. § 2-208 provides for obtaining the Attorney General’s approval of popular name and ballot title before the petition is circulated; therefore, of course, it could not be amended by getting such approval after the circulation of the petition.

The petition to require the Secretary of State to certify the referendum petition is denied.

Justices MoFaddin and Millwee dissent.

Justice George Rose Smith disqualified.

Minor W. Millwee, Associate Justice,

dissenting. Ark. Stats., § 2-208 implements Amendment No. 7 of the Arkansas Constitution and reads:

“Before any initiative or referendum petition ordering a vote upon any amendment or act shall be circulated for obtaining signatures of petitioners, tbe sponsors shall submit the original draft thereof to the Attorney General, with a proposed legislative or ballot title and popular name. The Attorney General shall, within ten days, approve and certify or shall substitute and certify a more suitable and correct ballot title and popular name for each such amendment or act; the ballot title so submitted or supplied by the Attorney General shall briefly and concisely state the purpose of the proposed measure. If the Attorney General refused to act or if the sponsors feel aggrieved at his acts in such premises they may, by petition, apply to the Supreme Court for proper relief.”

Now the clear purpose of the above section is to insure that an I & E petition bears a ballot title and popular name which shall “briefly and concisely state the purpose of the proposed measure.” It is equally clear that when a petition is submitted to the Attorney General under this section he shall either, ‘ ‘ approve and certify or shall substitute and certify a more suitable and correct ballot title and popular name . . . ”

On April 1, 1955, plaintiffs submitted to the Attorney General prior to circulation a petition which was headed in large bold type as follows:

PETITION FOR REFERENDUM SALES TAX EXEMPTION FOR LIVESTOCK AND POULTRY FEED

Below this followed the petition proper asking that Act No. 94 of 1955, entitled “An Act to Exempt Feed-stuff s Used in Growing or Production of Livestock and/or Poultry in this State from the tax levied under the Gross Eeceipts Tax and that levied under the Compensating Tax Act, and for other purposes” be referred to a vote of the people at the 1956 General Election. In response to plaintiffs’ request for a ruling on the petition, the Attorney General, on April 4, 1955, replied: “I have examined your form for petition for referendum on Act 94 of 1955 and in accordance with Ark. Stats. (1947) § 2-208 the same as submitted is hereby approved.” In addition, the Attorney General furnished plaintiffs a set of “Instructions to Canvassers and Signers ’ ’ signed by him and to be placed at the head of the petition. In the present action the Attorney General takes the position that the words which plaintiffs say constituted the ballot title and popular name are “vague, indefinite, false and misleading.”

Plaintiffs proceeded to procure more than 34,000 signers to the approved petition, which was filed with the Secretary of State on June 8, 1955. Immediately the Secretary of State was beseiged with numerous letters and telegrams from interested legislators and officers of various poultry associations requesting him to obtain a ruling from the Attorney General as to the “legality of the title” of the petition. As one writer put it: “Up in this neck of the woods we hope to find something wrong with the whole thing. Would you be so kind as to ask the attorney general to give us a public official ruling on the thing. Let’s hope it is unconstitutional or something.” Apparently even greater pressure was applied to the Attorney General. After considerable jockeying back and forth in which the Secretary of State repeatedly sought a definite ruling in the matter, the Attorney General wrote the letter on June 22, 1955, which concluded: “It is my opinion that, since the sponsor has not submitted a ballot title and popular name as required by § 2-208, and has not submitted a ballot title to the State Board of Election Commissioners as required by the 7th Amendment, as Secretary of State or as a member of the State Board of Election Commissioners you have no authority to certify, order or place this question on the ballot as the provisions of the Constitution and statutes which have not been complied with are mandatory.”

The pertinent issue would seem to be whether the Attorney General was correct in the opinion initially given the plaintiffs or the one finally rendered to the Secretary of State. The majority say the latter. While logical arguments may be advanced in support of either view, the Attorney General was eminently correct in his first opinion, in my humble judgment.

The rules governing the sufficiency of ballot titles have been repeated in many decisions. They are summarized in Bradley v. Hall, 220 Ark. 925, 251 S. W. 2d 470, as follows: “On the one hand, it is not required that the ballot title contain a synopsis of the amendment or statute. Sturdy v. Hall, 204 Ark. 785, 164 S. W. 2d 884. It is sufficient for the title to be complete enough to convey an intelligible idea of the scope and import of the proposed law. Westbrook v. McDonald, 184 Ark. 740, 43 S. W. 2d 356, 44 S. W. 2d 331. We have recognized the impossibility of preparing a ballot title that would suit every one. Hogan v. Hall, 198 Ark. 681, 130 S. W. 2d 716. Yet, on the other hand, the ballot title must be free from ‘any misleading tendency, whether of amplification, of omission, or of fallacy,’ and it must not be tinged with partisan coloring. Walton v. McDonald, 192 Ark. 1155, 97 S. W. 2d 81.” Another cardinal principle that runs through all our decisions is that the provisions reserving to the people the powers of initiative and referendum are to be given a liberal construction to effectuate the object and purpose thereby adopted. In Ferrell v. Keel, 105 Ark. 380, 151 S. W. 269, the court said such object and purpose, “was to increase the sense of responsibility that the lawmaking power should feel to the people by establishing a power to initiate proper, and to reject improper, legislation.” In Reeves v. Smith, 190 Ark. 213, 78 S. W. 2d 72, we said that since such residium of power rests in the electors, ‘ ‘ their acts should not be thwarted by strict or technical construction. ’ ’

The petition form which was circulated after its approval by the Attorney General clearly reveals that it bears a sufficient ballot title and popular name. The plain and easily understood words: “Sales Tax Exemption For Livestock And Poultry Feed,” briefly and concisely state the purpose of the proposed measure, as the law requires. A popular name is not required by the Constitution, and its requirement is merely a legislative device to make it easy for voters to discuss a measure. Pafford v. Hall, 217 Ark. 734, 233 S. W. 2d 72. The plain and simple words used by the sponsors here serve that exact purpose and could have no other function. I have challenged the majority, and I defy anyone to submit a ballot title or popular name that more clearly, concisely, definitely and accurately sets forth the purposes of the Act in question.

I do not understand that the majority have found any fault with the substance of the words used by plaintiffs as a ballot title and popular name. What they do hold is that it is mandatory that the petition not only contain the tags or designations, “popular name” and “ballot title,” following the words used as such, but that such designation must be called to the Attorney Ceneral’s attention specifically; and that all this must be done on papers separate from the petition proper. This is a narrow, restricted and technical holding that overrules former cases and violates the whole spirit and intent of the I & ft Amendment. We have held very definitely that the legislative title incorporated in a petition to initiate or refer a measure, is and does become the ballot title when so used even though it was not so designated. The majority blandly ignore the holdings in the Coleman, Blocker and Hogan cases to this effect by stating that they were decided prior to the enactment of Sec. 2-208.

While courts are not concerned with the wisdom or propriety of legislation, the people very definitely are. More than 34,000 Arkansas citizens felt that the Legislature acted wrongfully in exempting livestock and poultry feed from the sales tax while still exacting it on such vital necessities as medicine, milk and bread. In an earnest endeavor to make it possible for the people to determine for themselves whether this should be done, plaintiffs have become the unfortunate victims of a gross miscarriage of justice. Their valiant effort to exercise a precious constitutional right has now been completely thwarted by narrow, technical and illiberal judicial action that is without precedent to sustain it. I would permit the people to vote on Act 94 and, therefore, dissent from the conclusion of the majority.

Justice McFaddin joins in this dissent.


author: Lee Seamster, Chief Justice.

text:
    Watkins v. Bright.
    5-831
    286 S. W. 2d 333
    Opinion delivered January 30, 1956.

      Kenneth C. Goffelt, for appellant.

      Ben M. McCray, for appellee.
   Lee Seamster, Chief Justice.

This is an appeal by the appellants, from a judgment of the Saline Circuit Court, based on the verdict of a jury denying appellants ’ recovery from appellee for claimed personal injuries and property damage, arising out of an automobile accident which occurred in Benton, Arkansas, on September 1, 1954.

This dispute arose out of a collision between appellee’s automobile and a vehicle driven by appellant, Mrs. Earl Watkins, which occurred at the intersection of South' Street and West Drive Street, in Benton. Immediately prior to the collision, Mrs. Watkins was driving her husband’s automobile in a westerly direction on South Street and the appellee, Wayne Bright, was driving a vehicle, owned by Kelly Don Chandler, in a southerly direction on West Drive Street. The vehicles collided in the intersection, whereby, the vehicle being driven by Mrs. Watkins traveled another 150 feet further west, ran off the pavement and struck a house. The evidence conflicts as to the rate of speed that each vehicle was being driven immediately prior to the time of the collision. The appellants alleged that the accident was caused by the negligence on the part of the appellee in failing to yield the right-of-way. The appellee answered denying any negligence and in turn alleged that appellant, Mrs. Earl Watkins was negligent in the operation of her vehicle and was solely responsible for the collision, thereby praying that appellants’ complaint be dismissed. The jury returned a verdict for the appellee from which the appellants appeal.

For reversal, the appellants contend the trial court erred in giving defendant’s requested instruction Number 10, over the general and specific objections of the appellants. This instruction is as follows:

“You are instructed that when two motor vehicles approach an intersection at or about the same time, that it is the duty of the car approaching on the left to yield the right-of-way to the vehicle approaching on his right, but, however, where one vehicle has already entered the intersection, and the other vehicle has not, then the former vehicle has the right-of-way over the latter.”

Appellants objected to this instruction and contend that it is not a correct declaration of the law applicable to this case, for the following reasons: (1) there is no street intersection as a street intersection is known in law in this case; (2) the undisputed testimony shows that Mrs. Watkins entered the street intersection first, therefore, the instruction would not apply even if there were a street intersection involved; and, (3) South Street at the time of the collision was a part of the highway system of Arkansas, although the highway designation signs had been removed by the State Highway Department.

The purpose of instructions is to inform the jury of the legal principles applicable to the facts presented, and furnish a guide to assist in reaching a verdict. They are ordinarily read to the jury with continuity and unless contradictory as a matter of law must be considered as a whole. If, when so considered, the legal issues presented are properly explained, no prejudice results.

We hold that the trial court did not err by giving appellee’s requested instruction Number 10, as modified. See Ark. Stats. (1947), § 75-621. It was not a binding instruction since it did not exclude from the jury an opportunity to decide which vehicle entered the intersection first or whose negligence caused the collision. The facts reveal that this collision occurred at a street intersection where West Drive Street enters South Street. The undisputed facts also reveal that the State Highway Department had removed the highway designation signs some thirty days prior to the time of the collision and the Highway Department had re-routed the traffic over the new highway. There were no stop signs on either street. The question of negligence was properly submitted to the jury and the jury found for the appellee.

The appellants contend that Ark. Stats. (1947) Sec. 75-623 controls in this case because South Street is a through highway. Ark. Stats. (1947) Sec. 75-412 subsection (F) defines a through highway and Ark. Stats. (1947) Sec. 75-645 authorizes the State Highway Commission, with reference to State Highways, and local authorities, with reference to the other highways under their jurisdiction, to designate through highways and erect stop signs at specified entrances thereto. In other words, in order to have a through highway at any particular intersection there must be erected a stop sign at the entrance of the intersection on the highway approaching the through highway. It is conceded that there was no stop sign on West Drive Street, at the intersection of South Street.

Finding no error, the case is affirmed.


author: J. Seaborn Holt, Associate Justice.

text:
    Haller v. Haller.
    5-811
    286 S. W. 2d 331
    Opinion delivered January 30, 1956.

      Peyton D. Moncrief, Virgil R. Moncrief, John W. Moncrief, for appellant.

      Botts & Botts, for appellee.
   J. Seaborn Holt, Associate Justice.

This litigation involves title to a 160-acre tract of land in the Southern District of Arkansas County. Appellant was the brother of appellee’s father, L. C. Haller, and claims title by virtue of a deed from L. C. Haller and wife, Ethel, in January 1924. A large part of the consideration in this deed was the assumption by appellant of a mortgage on the property held by the American Investment Company dated January 15, 1924. Appellee, Ralph Haller ( L. C. Haller’s son) primarily claimed title to the land and ownership by virtue of seven years adverse possession, and also that appellant had abandoned the property. On a trial the Chancellor upheld appellee’s contention. The decree recited: “The court finds that the defendant, Ralph Haller, is the owner of the lands in controversy heretofore set out, subject to an indebtedness due Mary H. Brown . . . The court further finds that plaintiff abandoned said property and any title, claim or interest which he might have had in the same, or any part thereof, and that he presently has no title, right, or interest therein in any way whatsoever and that the defendant has acquired title to this property by reason of said abandonment, and possession and payment of taxes for more than seven years.” . . . “The court further finds that the defendant is not indebted to plaintiff in any sum . . .” This appeal followed.

After carefully reviewing the evidence, we have concluded that the findings of the trial court, that appellee acquired title by adverse possession, are not against a preponderance of the testimony. The preponderance of the evidence, in effect, shows that Ralph Haller, appellee, and his father before him, have been in possession of this land from the time it was purchased in 1917 at least up to 1944 and have claimed ownership up to the filing of the present suit, and they or the mortgagee have paid the taxes each year with the exception of 1924, 1925 and 1926 when they were paid by appellant. Appellant has never been in possession of the land. Ralph and his father lived on it, farmed it, cut and sold timber from it, pastured it, claimed it, the land was known as their land, they used it as their owrn, and have practically paid off the above mortgage. Appellant never collected any rentals or profits from the land and there was evidence that during the life of appellee’s father, appellant made the statement, and also told Ralph in 1946, that he, appellant, had no interest in the land, but should appellee decide to sell he would be interested in buying. Appellant, however, denied making any such statement. It appears that appellant stood idly by for approximately 30 years exercising no control, or ownership, over said land while at the same time appellee and his father before him were in undisputed possession openly, notoriously and adversely. In these circumstances the governing rule is stated in an opinion by Judge McCulloch, Tegarden v. Hurst, 123 Ark. 354, 185 S. W. 463. “We are also of the opinion that the evidence shows very clearly an intention on the part of Hurst to hold the land in hostility to any other claim, and that even if there was no right to reformation that Hurst’s occupancy ripened into a title by adverse possession for the statutory period. On that branch of the case, the defendants invoke the doctrine that where a grantor remains in possession, there is a presumption that he does so in subordination to the title he has granted, and not in hostility thereto. While that is true, there is an exception where the occupancy continues unexplained for an unreasonable length of time and under those circumstances, the presumption is gradually overcome by lapse of time. American Building & Loan Association v. Warren, 101 Ark. 163, 141 S. W. 765. The fact that Hurst remained in undisputed possession of the land, openly and notoriously, for a period of fourteen years is sufficient to overcome the presumption that he was holding in subordination to his original grant. Such occupancy was, under the circumstances, sufficient notice to Tegarden as to the hostility of the possession.” See also St. L. Sw. Ry. Co. v. Fulkerson et al, 177 Ark. 723, 7 S. W. 2d 789; Davis v. Burford, 197 Ark. 965, 125 S. W. 2d 789, where on the evidence it was held that adverse possession for a period of 23 years was sufficient; Forrest v. Forrest, 208 Ark. 48, 184 S. W. 2d 902, where we held under the facts there that a period of 10 years was sufficient.

As indicated, we hold that the Chancellor was warranted in finding from the evidence that appellee’s possession had been of sufficient character to abate the presumption that they were occupying the land in subordination to the grant of Ealph’s father (L. C. Haller) and mother, and since appellee and his father held continuous possession of the land for approximately 30 years they have on the facts presented acquired title by adverse possession. Affirmed.


text:
    City of Augusta v. Angelo.
    5-836
    286 S. W. 2d 321
    Opinion delivered January 30, 1956.

      Forrest E. Long, for appellant.
    TF. J. Dungan, for appellee.
   J. Seaborn Holt, Associate Justice.

This is a suit by appellee, Angelo, to recover alleged salary due him, as City Marshal, for Augusta, Arkansas, a city of the second class. The parties have stipulated that:

“Ordinance No. 232, referred to in plaintiff’s complaint was duly passed and published as required by law at the regular October, 1952, meeting of the City Council of said city and by its provisions did not take effect until January 1st, 1953.

“Ordinance No. 231, referred to in plaintiff’s complaint, was duly passed and published as required by law at the regular September, 1952, meeting of the City Council of said City and by its provisions did not take effect until January 1st, 1953.

“Plaintiff was duly elected Marshal of the City of Augusta for a two year term ending January 1st, 1953; that plaintiff was duly elected over an opponent in the November 4th, 1952 General Election for the two year term ending January 1st, 1955, and duly qualified for said office, and was paid and accepted $2.00 per month during said period.

“Ordinance No. 226 referred to in plaintiff’s complaint was duly passed and published and became effective January 1st, 1951, and under said ordinance plaintiff was paid a salary of $150.00 per month for the years 1951 and 1952.

‘ ‘ The respectively numbered exhibits attached hereto are true and certified copies of the original ordinances passed by the City of Augusta.

‘ ‘ The question of law herein presented is the validity of Ordinances No. 231 and 232, and in particular whether said ordinances are void or invalid as constituting an indirect abolishment of the office of City Marshal.”

Ordinance 231 provides in part: “That the office of City Marshal shall not be abolished hereby, but all duties heretofore performed by the City Marshal shall be transferred to and become the duties of the Chief of Police under the direction of the Police Commission and City Council. The compensation to be received by any and all officers appointed hereunder shall be determined by the police commission with the approval of the City Council . . . All legal process issued by the Mayor shall be directed to the Chief of Police . . . All fees, rewards, and other special remuneration received by the Police Department or any member thereof, shall be deposited with the City Treasurer and credited to the general fund of the city . . . The Chief of Police shall take over and perform all duties in connection with said court that have been performed by the City Marshal.”

Ordinance 232 provides: “Section 1: Beginning January 1, 1953, the salary of the various elected offices and officers shall be in amounts and payable at the time and in the manner set out as follows:

“Marshal — $24.00 per year payable $2.00 per month.

‘ ‘ Section 2: The provisions of this ordinance shall come into effect and be in force on January 1, 1953.”

Trial resulted in a judgment for appellee in amount of $3,552 with 6°/o interest and costs. The judgment contained these findings by the court:

“The court finds that the said ordinances No. 231 and 232 are void, invalid and of no legal effect and their attempted adoption by the City Council was an ultra vires act, because the passage of the ordinances was an attempt to abolish the office of City Marshal of the City of Augusta by indirect means, the finding of the court being that the said two ordinances are void, invalid and of no legal effect only to the extent that they affect the office and salary of the City Marshal of the City of Augusta.

“The court finds that the City of Augusta paid to the plaintiff, Jack M. Angelo, the sum of $2.00 on his salary for each of the months of 1953 and 1954, or a total of $48.00, and that the City of Augusta is thereby estopped to introduce testimony and to contend that the plaintiff, Jack M. Angelo, abandoned or vacated his office at any time during the years 1953 and 1954.

“The court finds that the plaintiff is entitled to recover the salary of $150.00 per month, as provided in ordinance No. 226 introduced herein, for the twelve months of 1953 and the twelve months of 1954, less the $2.00 per month paid in each month of the two years, or he is entitled to recover the sum of $3,552.00.”

This appeal followed.

The question presented is one of law. The facts were undisputed and the trial court based its judgment solely on the pleadings and stipulation of facts above. We held in McGill v. Miller, 183 Ark. 585, Head Note No. 2, 37 2d S. W. 689: “Where testimony was undisputed and the conclusion deducible therefrom was one of law, the appellate court was not bound by the trial court’s finding.”

At the time the above ordinances were enacted the following sections of our statute were in effect and controlled: § 19-1103, Ark. Stats., 1947 “Marshal, recorder, and treasurer to continue in office until successor qualified — (The qualified voters of each city of the second class shall, at the same time, elect a city marshall [marshal], city recorder and treasurer.) Each of said officers shall continue in office until his successor is elected and qualified, and shall have such powers and perform such duties as are prescribed in this act, or as may be prescribed by any ordinance of such city, not inconsistent with the provisions of this act.”

Section 19-1104, Ark. Stats., 1947 “Marshal — Powers and Duties — Appointment of Duties — Fees — The Marshal of cities of the second class shall execute and return all writs and process to him directed by the mayor, and, in criminal cases or cases of a violation of the city ordinance, he may serve the same in any part of the county; it shall be his duty to suppress all riots and disturbances and breaches of the peace, to apprehend all disorderly persons in the city, and to pursue and arrest any person fleeing from justice in any part of the State; to apprehend any person in the act of committing any offense against the laws of the State, or ordinances of the city, and forthwith to bring such persons before the mayor, or other competent authority, for examination or trial; he shall have power to appoint one or more deputies, for whose official acts he shall be responsible; he shall, in the discharge of his proper duties, have like powers, be subject to like responsibilities, and shall receive the like fees as Sheriffs and Constables in similar cases.”

Clearly it appears under § 19-1103 that the office of City Marshal was an elective office by the qualified electors of Augusta. See Thomas v. Sitton, 213 Ark. 816, 212 S. W. 2d 710. The City Council at the time Ordinance 231 was enacted [which was prior to the effective date of Act 172 of 1953 which gives cities of the second class authority to appoint the City Marshal instead of electing] was without power to abolish the office of City Marshal and the ordinance was, therefore, void. See City of Berryville v. Binam, 222 Ark. 962, 264 S. W. 2d 421.

We think, however, that Ordinance 232 above is a valid enactment. As we construe § 19-1103 and § 19-1104 above, the City Council was not required to pay the duly elected City Marshal any certain or stated salary, or in fact, any salary at all. It could, however, if it so elected, pay him some salary, as the $2.00 per month here, in addition to “the like fees as Sheriffs and Constables in similar cases,” received as provided in § 19-1104 above. Here appellee, Angelo, had been duly elected to the office of Marshal by the people. There was no vacancy in the office and he was not a “hold-over” officer. As pointed out, the City’s authority to fix appellee’s salary was unrestricted except that it could not change his salary during any certain term once it had been fixed. We conclude, therefore, that appellee has been paid by the City all the salary ($2 per month) that the city agreed to pay him under Ordinance 232 during his elected term 1953 and 1954. The judgment is reversed and the cause remanded with directions to proceed not inconsistent with this opinion.


author: Ed. F. McFaddin, Associate Justice.

text:
    Arkansas State Board of Architects v. Bank Building & Equipment Corp. of America.
    5-794
    286 S. W. 2d 323
    Opinion delivered January 30, 1956.

      Mehaffy, Smith & Williams, B. S. Clark, for appellant.

      Harry S. Kramer, Jr.; Rose, Meek, House, Barron and Nash, for appellee.
   Ed. F. McFaddin, Associate Justice.

The issue posed on this appeal is whether the appellee has engaged in the practice of architecture in violation of Act 270 of 1941 (now found in § 71-301 et seq., Ark. Stats.)

Appellant, Arkansas State Board of Architects (hereinafter called “Board”), filed suit to enjoin appellee, Bank Building & Equipment Corporation of America (hereinafter called “Building Corporation”), from continuing to engage in certain activities which the Board alleged to be the practice of architecture and in violation of said Act 270. The Chancery Court held that the activities of the Building Corporation did not amount to the practice of architecture and dismissed the complaint; and. from that decree the Board brings this appeal presenting the issue as first stated above.

The evidence established that the Building Corporation is domiciled in St. Louis, Missouri, and qualified as a foreign corporation in this State; but is not licensed to engage in the practice of architecture under Act 270 of 1941 (§ 71-301 ei seq., Ark. Stats.); that the Building Corporation specializes in constructing bank buildings and planning and constructing the interiors thereof, and has an architectural department as an integral part of its business; that Mr. W. G. Knoebel — licensed as an architect in Arkansas — is the Chief Architect of the Building Corporation, and is the head of a staff of about two hundred persons in the architectural department of the Building Corporation; that none of these two hundred — ■ except Mr. Knoebel — is licensed in Arkansas; that the general plan used by the Building Corporation, in obtaining and performing its contracts, is as follows: it solicits a bank that contemplates constructing a building or rearranging the interior thereof, and persuades the bank to sign a ‘ survey agreement ’ ’ in which the bank is designated as “owner” and the Building Corporation as “company”; and that the contract provides in part:

“1. Company shall consult with and advise Owner, and shall furnish suggestions and recommendations for proposed improvements.

“2. Company shall designate a qualified and registered architect to perform all architectural services that may be necessary in connection with the proposed work and improvements, and Company shall pay the architect for such services.

“3. Architect shall perform all architectural work, including preparation of all preliminary and working drawings, plans and specifications, and shall furnish Company all necessary data for preparation of survey.

“4. Periodic inspection trips shall be made as required, but not less than once each month during the progress of the job. These without charge and in addition to the trips for the awarding of contracts.

“5. Architect shall prepare Proposals and Contracts incidental to the work, issue certificates of payment, and keep proper and adequate records.

“6. The fee payable by Owner to Company shall be ......per cent (.........) of all Architectural Work planned, including building improvements, mechanical work, interi- or equipment, furnishings and vault equipment . . . ”

Here are excerpts from the testimony of the President of the Building Corporation regarding its activities under the contract:

“. . . we go into a bank . . . and make a complete analysis of their entire operation; after we have completed that analysis we make the necessary recommendations to improve the work flow, the type of equipment that might be more efficient, and that is an extensive part of that survey agreement . . . then the architect takes over and makes the necessary plan to show the man what can be done to give them efficient work space.

“Q. When does the architect first come into the picture ?

“A. He comes into the picture immediately on the necessity of any plan being done . . . The architectural department then has a meeting with our planning-board, which consists of five men in the organization, of which the architect is one, and we make a complete analysis of what is going to be required . . . Then it goes into the architectural department to make the plans along the lines of that budget so when it is completed it will be practical for the bank to proceed with the operation . . .

‘ ‘ Q. Suppose the owner at that point decides to take competitive bids?

“A. We step out and continue to operate under our survey agreement . . .

“Q. If the owner decides to open it up to competition, you do not compete in the bidding?

“A. No, we step out of the picture and retain our status and Mr. Knoebel then takes over and performs the architectural services . . .

“Q. What is Mr. Knoebel’s full name?

“A. Wilbur G-. Knoebel. . . .

“Q. In what capacity is he employed?

“A. Chief architect of the Architectural Department.

“Q. Is he a full time employe?

“A. Yes, sir.

‘ ‘ Q. How many architects does he have working under him, licensed architects? You said he had 200 in his department ... Do you know how many are licensed in Arkansas ?

“A. Just one.

“Q. Mr. Knoebel?

“A. Yes . . .

££Q. Does Mr. Knoebel go personally — does be come personally to Arkansas on each of your jobs, or would he send one of the men under him?

<£A. In most cases he would send a man-under him. He does make trips in many cases.

££Q. You pay Mr. Knoebel a salary, I presume?

££A. He works on a salary and a fee basis; he gets a percentage of fees, depending on the volume.

££Q. Nevertheless, he can be discharged by your company at any time, couldn’t he?

“A. If his services AArere unsatisfactory, yes, sir . . .

££Q. Who Avould receive his fee?

££A. Our survey agreement Avould provide for us getting the fee.

l£Q. Your company would get the fees and your company would pay Mr. Knoebel according to your arrangements with him?

££A. That is right.”

Under the above testimony of its President, it is clear that the Building Corporation is contracting in this State to furnish architectural services for constructing banks and rearranging the interiors thereof; that it has a staff of about two hundred architects to perform such service; that only one of these — Mr. Knoebel — is licensed in Arkansas to practice the profession of architecture; that he works for the Corporation as an employee; and that he details the inspection and supervision work to his subordinates, none of whom is licensed under the Arkansas law.

The Act 270 of 1941 provides in Section 2:

£ £. . . no person shall practice architecture in this State, or engage in preparing plans, specifications, or preliminary data for the erection or alteration of any building located within the boundaries of this State, or use the title'architect’ . . . unless such person shall have secured from the Examining Body a certificate of registration and license in the manner hereinafter provided . . . ”

The appellee, Building Corporation, does not come within any exemption provided in Sub-section 2 of said Section II of'the Act; and sub-section 3 of Section II of the Act provides:

“No corporation shall be licensed or registered to practice architecture in this State unless the principal of such corporation whose name appears in the corporation’s name is a registered architect, and providing also that each such principal is so registered.”

Thus the appellee, Building Corporation, as such, could not be authorized to practice architecture in this State, since Mr. Knoebel’s name does not appear in the name of the Corporation. An architect is one whose occupation it is to form and devise plans and designs and draw up specifications for buildings or structures and to superintend their construction. In the case of McGill v. Carlos, Ohio Com. Pl. 81 N. E. 2d 726, one of the Ohio courts, in discussing the practice of architecture, used this pertinent language:

“Primarily, an architect is a person who plans, sketches and presents the complete details for the erection, enlargement, or alteration of a building or other structure for the use. of the contractor or builder when expert knowledge and skill are required in such preparation. The practice of architecture may also include the supervision of construction under such plans and specifications. See Webster’s New International Dictionary; the New Century Dictionary; 3 Ohio Jur., Sec. 1, page 115; Kansas City Southern R. Co. v. Wallace, 38 Okl. 233, 132 P. 908, 46 L. R. A., N. S., 112; 3 Amer. Jur. Sec. 2, page 998.”

The foregoing is exactly what the Building Corporation is doing under its contract and under the testimony of its President and it is, therefore, acting in violation of the Arkansas Legislative Enactment here involved.

In answer to the appellant’s contentions the appellee says: “We search the statute in vain for any language which would prohibit the appellee from agreeing to designate a qualified architect.” In other words, the appellee contends that all it does is to designate Mr. Knoebel and that he is licensed. But the appellee, Building Corporation, is doing far more than a mere designation. It contracts with the ‘ ‘ owner ’ ’ to furnish plans and specifications (and it has a staff of two hundred employees in its architectural section to draw these plans); and then it provides the supervision of the construction. In short, the appellee, Building Corporation, is agreeing to have its own employees do the architectural work. The fundamental legal principle of agency — “qui facit per alium, facit per se (he who acts through another acts by himself)” — when applied here, proves that the Building Corporation is not merely “agreeing to designate a qualified architect ’ ’: rather it is employing a staff of two hundred architects and it is engaged in the practice of architecture.

The appellee, Building Corporation, cannot hide behind the mask, that it has one architect licensed to practice in Arkansas; because the evidence shows that Mr. Knoebel acts in an advisory capacity over a staff of two hundred persons in the architectural department, and that he designates some of them — each of whom is unlicensed — to help fulfill the contracts that the appellee, Building Corporation, has in this State. We held in Arkansas Bar Assn. v. Union National Bank, 224 Ark. 48, 273 S. W. 2d 408, that if a bank should furnish the services of attorneys to its customers, the bank would be engaging in the practice of law. By the same token, appellee, Building Corporation, by furnishing the services of architects to its customers, is engaging in the practice of architecture.

Appellee cites cases from other States to justify its activities in Arkansas. Some of these cases are: Joseph v. Drew, 36 Cal. 2d 575, 225 Pac. 2d 504; Walter M. Bal lard Corp. v. Dougherty, 106 Cal. App. 2d 35, 234 Pac. 2d 745; Baer v. Tippett, 34 Cal. App. 2d 33, 92 Pac. 2d 1028; Castaldi v. Reutermann, 345 Ill. App. 510, 104 N. E. 2d 115; and Continental Paper Grading Co. v. Howard T. Fisher & Associates, 3 Ill. App. 2d 118, 120 N. E. 2d 577. But each of these cases from another State is based on a Statute different from our own. For instance, the California Statute, on which the cases from that State were based, allows a corporation to be licensed as an architect (see Sec. 5535 of the Business and Professional Code of California). The California Code also allows an unlicensed person to draw plans, specifications and drawings, provided such unlicensed person informs the other party in writing that the unlicensed person is not an architect (see Sec. 5537, Business and Professional Code of California). Thus the cases from other States are of little value to us in passing on our particular Statute as it is not shown or claimed that our Statute was borrowed from any other State.

It is not for this Court to consider the wisdom of the Arkansas Legislative Enactment in going as far as it did: since no constitutional question is urged here ■ — • and none raises itself — our duty is to measure the act in the present case by the yardstick of the statutory language. When so measured it is clear that the appellee, Building Corporation, is violating the Arkansas Statute.

The decree is reversed and the cause is remanded for further procedure not inconsistent with this opinion.

Justice George Rose Smith not participating.

Justice Ward dissents.

       Whether injunctive relief would be proper need not be considered because the parties have not raised the question and because the pleadings and record present a proper case for a declaratory judgment which could have brought the issue to a focus. See Culp v. Commissioner of Revenues, ante page 749, decided December 19, 1955.

       So far as our search discloses, this is the first case before us involving the said Act 270. Since neither side has raised any question concerning the constitutionality of the Act, we likewise by-pass that potentiality; but it is appropriate to mention that in 3 Am. Jur. 998, in discussing the licensing of architects, the text states the holdings of cases in these words: “In many States statutes are enforced which regulate architects in the practice of their profession. . . . It is well settled that the State may, in the exercise of the police power, thus regulate the profession. . . . ”


author: Minor W. Millwee, Associate Justice.

text:
    Bullock v. Miner.
    5-796
    286 S. W. 2d 328
    Opinion delivered January 30, 1956.

      Donald Poe, Robert R. Broohsher, for appellant.

      Hardin, Barton, Hardin & Garner, for appellee.
   Minor W. Millwee, Associate Justice.

Appellants, James Bullock and Shirley Jean Hall, are minors who, by their parents, brought separate actions against appellee, Joe Miner, to recover damages for personal injuries which they allegedly sustained on August 25,1954, when a school bus in which they were riding was struck by appellee’s truck on U. S. Highway 71 between Abbott and Mansfield, Arkansas. Each complaint alleged that, at the time of the collision, appellee’s truck was being-operated by Franklin Richey as the agent, servant and employee of appellee and while acting within the scope of his agency or employment, all of which appellee denied.

The cases were consolidated for trial to a jury. After appellants presented their testimony bearing on the issue of Richey’s agency for or employment by appellee at the time of the collision, but before they had introduced all their proof, the trial court denied appellants’ motion for a non-suit and granted appellee’s motion for a directed verdict in his favor.

In directing a verdict for appellee, the circuit judge found, as a matter of law, that Richey was not acting as the agent or servant of appellee at the time of the collision and was not, therefore, liable for his negligent acts. Thus it is agreed that the primary issue here is whether there is any substantial evidence to warrant a jury finding that the driver, Franklin Richey, Avas acting as the agent or servant of appellee and within the scope of his agency or employment at the time of the collision. In testing the correctness of the court’s action in peremptorily instructing the jury on this issue, the evidence adduced must be given its strongest probative force in favor of the appellants. As this court stated in Barrentine v. Henry Wrape Co., 120 Ark. 206, 170 S. W. 328: “In determining on appeal the correctness of the trial court’s action in directing a verdict for either party, the rule is to take that view of the evidence that is most favorable to the party against whom the verdict is directed, and Avhere there is any evidence tending to establish an issue in favor of the party against whom the Amrdict is directed, it is error to take the case from the jury.” See also, Pugh v. Camp, 213 Ark. 282, 210 S. W. 2d 120.

At a pretrial conference it was admitted that appellee was engaged ill the junk business at Boles, Arkansas, and owned the truck involved in the accident; that said truck was being driven by Richey and Avas partly loaded with scrap iron; and that Richey, at times previous to the accident, had been employed by appellee. At the trial Richey and appellee were called as witnesses by appellants. Richey testified that, on the morning of the accident, he drove his own car to the home of appellee at Boles to see if he could catch a ride with appellee to Ft. Smith where Richey desired to make some inquiry about his prospective employment at O’Roark’s Body & Paint Shop. Appellee told Richey that he and his wife were going to Ft. Smith later in the day, but that Richey could drive appellee’s truck, Avhich was partly loaded with junk, to O’Roark’s shop where appellee would pick it up and deliver the junk to Yaffee Iron & Metal Co. in Ft. Smith where appellee always sold his junk. Richey attempted to fix the brakes on the 1948 model truck, which were knoAvn by appellee to be defective, and appellee gave him $1.00 Avith A\diich to purchase brake fluid. In making the repairs, Richey “plugged up” one of the brakes and so advised appellee. Richey proceeded in the truck toward Ft. Smith over Highway 71 until he came up behind the school bus which was slowing down for a stop. A car was approaching from the opposite direction and the truck struck the rear of the school bus when the brakes proved to be wholly defective and would not hold.

When Richey was questioned by appellee’s counsel as to the nature of the agreement under which the truck was turned over to him, he answered: “Well, it wasn’t exactly a loan. He (appellee) told me I could drive the truck up there. He told me I could drive the truck up there if I’d drive the load of iron up there.” He also stated that he was to drive the truck to Ft. Smith for the ride up there as well as for the convenience of appellee, and that he might have driven it back to Boles if he had not secured the job at 0’Roark’s shop. While appellee denied that Richey was in his employ at the time of the collision, he stated that he had made similar trips for appellee prior to and since the collision; that Richey’s working hours were usually irregular and he was paid by the hour; and that he frequently did things for appellee without charging for his services. He had intended to pick up an old car body at 0’Roark’s shop and bring it back to Boles to be dismantled for junk. According to the driver of the school bus, appellee came upon the scene shortly after the wreck and stated that “his brakes were supposed to have been fixed at Waldron,” and that Richey was hauling a load of junk to Ft. Smith in his truck.

When the foregoing admissions and testimony are considered in the light most favorable to the appellants, we conclude that a jury question was made as to whether Richey was acting within the scope of his agency or employment and as the agent or servant of appellee at the time of the collision. 0 It is true that an owner is not liable for negligence in the operation of his vehicle by an employee to whom he has rented or lent it and who is using it on a mission of his own or solely for his own purposes. White v. Sims, 211 Ark. 499, 201 S. W. 2d 21. But it is also well settled that if a vehicle causing an accident belongs to the defendant, and is being operated at the time of the accident by a regular employee of the defendant, there is a reasonable but rebuttable inference that at such time he was acting within the scope of his employment and in the furtherance of his master’s business. Mullins v. Ritchie Grocer Co., 183 Ark. 218, 35 S. W. 2d 1010.

In cases involving facts quite similar to those adduced by the appellants here, we have held that the issues, as to whether the driver of the vehicle was acting as the agent or servant of the owner and within the scope of his agency or employment at the time of the accident, are for the jury and not the court. Casteel v. Yantis-Harper Tire Co., 183 Ark. 475, 36 S. W. 2d 406; Ball v. Hail, 196 Ark. 491, 118 S. W. 2d 668; Lion Oil Refining Company v. Smith, 199 Ark. 397, 133 S. W. 2d 895. To the same effect are the cases of Volentine v. Wyatt, 164 Ark. 172, 261 S. W. 308, and Richards v. McCall, 187 Ark. 61, 58 S. W. 2d 432. In West v. Wall, 191 Ark. 856, 88 S. W. 2d 63, relied on by appellee, the driver was using the truck on an independent business trip for a partnership of which he was a member at the time of the accident which did not involve a defective condition of the vehicle.

Our conclusion that the evidence adduced by appellants is legally sufficient to warrant a jury finding for appellants on the issues presented is in harmony with the following rule approved by this court in Skillern v. Baker, 82 Ark. 86, 100 S. W. 764, 118 Am. St. Rep. 52, 12 Ann. Cas. 243, and numerous subsequent cases: “It may be said to be the general rule that where an unimpeached witness testifies distinctly and positively to a fact and is not contradicted, and there is no circumstance shown from which an inference against the fact testified to by the witness can be drawn, the fact may be taken as established, and a verdict directed based as on such evidence. But this rule is subject to many exceptions, and where the witness is interested in the result of the suit, or facts are shown that might bias his testimony or from which an inference may he drawn unfavorable to his testimony or against the fact testified to by him, then the case should go to the jury.”

While Eichey is not made a party defendant, he could hardly be classed as a disinterested witness and his testimony on some points is contradicted by other evidence. For instance, his statement that he made repairs to the truck at appellee’s home is contradicted by the bus driver’s testimony that appellee said the brakes were to have been repaired at Waldron. And, even if the fact finders found Eichey’s testimony true in toto, it is certain that he was acting for the mutual benefit of himself and appellee and not solely for his own purposes in driving appellee’s truck. On the whole case, we cannot say that a fair and reasonable inference might not have been deduced by the jury that Eichey acted as the agent or servant of appellee and within the scope of his employment in the operation of the truck at the time of the collision.

While the issue probably will not arise again, the trial court also erred in overruling appellants’ motion for a non-suit. See Hall, Adm., v. Chess & Wymond Co., 131 Ark. 36, 198 S. W. 523. For the error in instructing a verdict for appellee, the judgment is reversed and the cause remanded for trial.


author: George Rose Smith, J.

text:
    Warren, Tax Assessor v. Wheatley.
    5-845
    286 S. W. 2d 334
    Opinion delivered January 30, 1956.

      R. Julian Glover, for appellee.

      Richard W. Hobbs, for appellant.
   George Rose Smith, J.

This is a tax assessment proceeding involving thirteen parcels of land owned by the appellee. At its 1953 session the county board of equalization approved valuations totaling $143,100 that had been assigned to the lands by the county assessor. In appealing to the county court the property owner failed to publish, or to have the county clerk publish, the statutory notice that such an appeal had been taken. Ark. Stats. 1947, § 84-708. The county court, after a hearing, entered an order reducing the assessed valuations to $135,650. At the next term of court, however, the court set aside its order upon the ground that publication of the statutory notice was essential to its jurisdiction. That action was later reversed by the circuit court, which reinstated the original county court order. The county assessor has appealed from the judgment of the circuit court.

We think the county court was right in considering the publication of notice to be indispensable to its jurisdiction. It is commonplace for the legislature to prescribe certain jurisdictional steps in appellate procedure. Familiar examples include the filing of a notice of appeal to this court, General Box Co. v. Scurlock, 223 Ark. 967, 271 S. W. 2d 40, and the lodging of the transcript within thirty days after the rendition of judgment by a justice of the peace. Bridgman v. Johnson, 200 Ark. 990, 142 S. W. 2d 217.

The statute cited above provides that “the county court shall acquire no jurisdiction to hear such appeal” from the equalization board unless the required notice is published. The legislature could hardly have declared more explicitly that the notice is a prerequisite to the county court’s power of review. Nor is the defect cured by the fact that here the assessor appeared and contested the case in the county court. The notice is more than a mere summons by which the court acquires personal jurisdiction over the assessing officials. The statutory form of notice is expressly for the benefit of “any owner of property” in the county and was doubtless adopted to supply an omission that had been found to exist in an earlier law. Pulaski County v. Commercial Nat. Bank, 210 Ark. 124, 194 S. W. 2d 883; 5 Ark. L. Rev. 368. The legislature evidently believed that the giving of publicity to a matter of interest to other taxpayers is of sufficient importance to be made a condition to the court’s jurisdiction of the subject matter.

It is also argued that the county court was without authority to vacate its original order after the lapse of the term. This order, however, was void for want of jurisdiction, as we have seen, and was therefore subject to the court’s continuing power to expunge such an order from its records. Walsh v. Hampton, 96 Ark. 427, 132 S. W. 214; State v. West, 160 Ark. 413, 254 S. W. 828.

Reversed.