text:
    Giss v. Apple.
    5-3648
    396 S. W. 2d 813
    Opinion delivered December 13, 1965.

      Herschel 11. Friday, Jr., Robert 8. Lindsey, J. W. Barron, for appellant.

      Julius C. Acchione, Leon Catlett, 11. A. Gentry, for appellee.
   J. L. “Bex” Shaver, Special Associate Justice.

This appeal involves the Riverdale Country Club and the efforts of its Board of Governors and Officers and a majority of the quorum of its members, to sell and exchange all of its presently owned land and facilities to Pleasant Valley, Inc., for a new location. Pleasant Valley, Inc., would also make available to Riverdale $1,150,000.00 for a Clubhouse, pro shop, youth center, tennis courts, parking areas, drives and swimming pools; the design and style of architecture to be determined by Riverdale.

Appellees, Apple et al., are stockholders of River-dale. They filed suit against appellants, Giss et al., as the President and Board of Governors of Riverdale, to prevent the consummation of the proposed exchange, claiming the appellants lacked authority to act for the corporation. The appellants claimed full authority to act for the corporation, but counterclaimed and asked for a declaratory judgment. Trial in the Chancery Court resulted in a permanent injunction against the appellants; and this appeal ensued, in which appellants list four points:

I. The Club, itself has power to make the proposed exchange.

II. The vote taken Oct. 26, 1964, validily authorized the Board to make the exchange.

III. Under the articles of incorporation and bylaws the Board has authority independently to enter into the proposed exchange.

IV. Appellants are entitled to a declaratory judgment as prayed for.

Riverdale Country is a Corporation, having been incorporated by order of Pulaski Circuit Court on August 11, 1947, as a non-profit corporation under 64-1301 et seq., Ark. Stats. 1947.

Section 64-1306 of said Act provides: “Any such Corporation shall have power * * # to sell, lease, mort gage, pledge, assign, transfer or otherwise dispose of lands'or real property, or any right or title therein, or improvements thereon, personal property of every class and description, for any purpose or use necessary, convenient, useful or incidental to the accomplishment of the purposes of the Corporation.”

The Corporation is authorized to sue and be sued and “to do any and all things necessary, convenient, useful or incidental to the attainment of its purposes as fully and to the same extent as natural persons might or could do, as principals, agents, contractors, trustees or otherwise.” (Ark. Stats. 64-1306).

The Corporation is authorized to amend its Constitution or Articles of Association by complying with Ark. Stats. 64-1304.

The Articles of Incorporation and Constitution of Riverdale Country Club stated that the Corporation shall be located in Pulaski County, Arkansas, and that its object shall be “to provide recreational facilities for its members and their families by means of a country and outdoor sports club.” That its name shall be “Riverdale Country Club.” Its officers shall be a President, Vice President, Secretary, and Treasurer, and a Board of Governors composed of nine members, to be elected as provided in Article III of the Constitution. The Board of Governors were to have control of the property and business of the Corporation. Amendments to the Articles could be made at any time as provided in Article VII of the Constitution.

The Articles provided that a quorum for the election of any and all officers shall consist of not less than a majority of the members in person or by proxy, and Amendments to Articles could be made at any time by a majority vote at any regular or special meeting at which a majority of the active members of the Corporation shall be present in person or by proxy.

By-Laws of the Corporation were adopted consistent with the authority granted in the Articles of Incorporation and Constitution.

On October 1,1957, Article 6 of tbe Constitution was amended to provide that the Corporation should have power to borrow money and pledge and mortgage its property, upon the affirmative vote of a majority of the members having voting rights.

At a special meeting of the regular members of the Riverdale Country Club held on October 26, 1964, 260 ' regular members voted in favor of the motion authorizing the Board to proceed and act on the Pleasant Valley proposal and 256 regular members voted against it. At that time there were 549 regular members. Therefore, a majority of the members present in person or by proxy voted for the Pleasant Valley proposal, but a majority of the members having voting rights did not vote for the Pleasant Valley proposal.

The Constitution and By-Laws of Riverdale Country Club are silent as to the number of votes necessary to approve the Pleasant Valley proposal.

The lower Court held that the defendants had no authority under the Constitution and By-Laws of River-dale Country Club to effectuate the proposed trade with Pleasant Valley, Inc., without proper authorization from the members of said Club, and that the vote of the members of Riverdale Country Club on October 26, 1964, at which time 47.35% of the members of said Club voted to authorize said exchange with Pleasant Valley, Inc., did not legally authorize and empower the Board of Governors of said Club to enter into an agreement with Pleasant Valley, Inc., whereby all the assets of Riverdale Club would be sold or exchanged. The lower Court, therfore, enjoined the defendants, from entering into such agreement with Pleasant Valley, Inc.

It is appellant’s position that a majority vote at any meeting legally called, at which a majority of the active members were present in person or by proxy, was sufficient to carry the proposal of Pleasant Valley. That this is true even though the Constitution and the ByLaAvs are silent as to the number of votes necessary to carry a proposal for exchange of properties. Also, that under the Statutes, Articles of Incorporation and ByLaws, the Board of Governors has authority independently to enter into the agreement with Pleasant Valley.

It is appellees ’ position that the general language of the Statute giving power to the Corporation “to sell, transfer, or otherwise dispose of lands or real property, ’ ’ should he construed to mean that the Corporation should have power to sell its real property in the ordinary course of business; that the above power is limited in the act itself which withholds from the Corporation the right to sell, transfer or otherwise dispose of lands or real property except “for any purpose or use necessary, convenient, useful or incidental to the accomplishment of the purposes of the Corporation.” That this language necessarily means that the Corporation was limited in the sale, transfer or other disposition of its real property to a purpose convenient and useful or incidental to the accomplishments of the purposes of operating Riverdale Club, where located, and this language should not be extended to permit the sale and transfer of all of the assets of the Corporation, and substitute therefore an entirely different Club, at an entirely different location to 'be operated under an entirely different title. Also, the rule generally here is, that in the absence of special provisions in the Charter or By-Laws, the Board of Governors may not sell all the corporate property without the unanimous consent of all of its members.

The Board of Governors of Riverdale considered all aspects of the proposed sale and exchange of properties with Pleasant Valley. It found that it would take $155,000.00 to bring Riverdale facilities up to desirable standards. That Pleasant Valley proposed to convey to Riverdale approximately 254 acres of land west of the Rodney Parham Road and near Highway # 10 in exchange for its 250 acres of land and improvements located on same, and would construct to Riverdale’s specification an 18 hole golf course and a 9 hole golf course; pay Riverdale $1,150,000.00 to be used by it to design and construct a Clubhouse, swimming pool and tennis court, and would pay Riverdale’s present mortgage indebtedness amounting to not more than $170,000.00. The Board had the benefit of professional appraisers and the reports of its study committees on all aspects of the proposed transaction. It unanimously approved the proposed transaction and a majority of a quorum of the members approved same.

The Constitution of Riverdale requires that the recreational facilities be in Pulaski County. There is nothing in the Constitution or By-Laws freezing the location to any particular location or place in Pulaski County.

The Board proposed to sell and exchange River-dale’s property for the purpose of acquiring other property, which newly acquired property, in the judgment of the Board, would be an .improvement over its present facilities as a whole and would be in the best interest of said Club. We do not think that the proposal of Pleasant Valley, if legally accepted by Riverdale, would have the effect of dissolving the Corporation and abandoning the enterprise for which it was created as contended by appellees. On the contrary, we are of the opinion River-dale’s acceptance of said proposal would further the object and purposes of said Corporation; that is, “to provide recreational facilities for its members and their families by means of a country and outdoor sports club.” (Constitution Art. 1). We are of the opinion that River-dale had power to make the proposed sale and exchange with Pleasant Valley.

The next question to be decided is, how can this power be exercised by Riverdale in the absence of any provision in its Articles and Constitution authorizing same1?

We are of the opinion that the Board of Governors of Riverdale does not have the power to sell and exchánge its entire property to Pleasant Valley.

“The Corporate Directors or trustees have no power to sell or otherwise dispose of the entire corporate property, unless the power to do so is conferred on the Directors by the charter or governing statute, in express language or by necesary implication; or unless the stockholders authorized them to do so, or consent thereto, or unless the Corporation is in failing circumstances or insolvent and it is necessary to do this in order to raise money to pay the debts of the Corporation.” 19 C. J. S. Corporations, page 536.

Section 64-1306, Ark. Stats. 1947, gives the Corporation power “to sell, lease, mortgage, pledge, transfer or otherwise dispose of lands or real property, or any right or title therein, or improvements thereon, * * * * for any purpose of use, necessary, useful, or incidental to the accomplishment of the purposes of the Corporation.” This statute gives the corporation power to sell or otherwise dispose of lands or real property,'etc., but it does not give the Board of Governors or Directors of any Corporation the express power to sell and otherwise dispose of its entire property.

Ark. Stats. 64-1301, et seq. was repealed by Section 21 of Act 176 of the Acts of the General Assembly for 1963. See Section 64-1901 through 64-1921, Ark. Stats. 1947. Section 64-1903 provides that the Act shall apply to: “(b) All not for profit corporations heretofore organized under any act hereby repealed, for the purpose or purposes for which a corporation might be organized under this Act.”

Section 64-1907 of said Act provides that each Corporation shall have power:

“(d) To sell, convey, mortgage, pledge, lease, exchange, transfer and otherwise dispose of all or any part of its property and assets.”

The above sections give the Corporation the above powers but do not confer this power expressly on the governing Board of such Corporations.

In the case of Rives v. McGaughey, 210 Ark. 658, 197 S. W. (2d) 49, the Court said at page 663:

“Ordinarily, in the absence of a charter or statutory limitation on its authority (except in case of sale of all assets), the Board of Directors of the Corporation has the power, when acting in good faith, to authorize the sale and conveyance of the real estate of the Corporation.”

The above statutes gave the governing body of said Corporation the authority to sell and convey the real estate of the Corporation in the ordinary course of its business, but it did not give it authority to sell and exchange all of the assets of said Corporation without first obtaining the approval of the members of said Corporation.

We are then confronted with the question, can a majority of a quorum of its members authorize the sale and exchange of its entire property and facilities, as contended by appellant, or must there be a unanimous vote of all of its members, as contended by the appellees, before the Board has the authority to act?

Our research has failed to show us that we have passed on this question, and counsel has not cited us any Arkansas cases directly in point. So, this is a. question of first impression.

In resolving this question we give great weight to the actions of Biverdale when it became necessary for the Club to borrow money for its corporate purposes, in 1957. The members acting under Article YII of its charter, wherein it is provided that amendments maybe made at any time to its Articles, amended Article VI, to read as follows:

“This Corporation shall have power to raise funds by the issuance of notes, bonds and other evidence of indebtedness, and shall have the power to pledge and mortgage its properties and assets, upon the affirmative vote of a majority of the members having voting rights.”' Biverdale, by this amendment, expressly gave the Corporation power to pledge and mortgage its properties and assets upon the affirmative vote of a majority of the-members having voting rights. If it takes a majority of members to mortgage its properties to secure a debt we cannot assume that the affirmative vote of a majority of a quorum of its members would have the power to sell and exchange its entire properties and facilities as provided for in the Pleasant Valley proposal. The power to sell and exchange all of its properties and facilities is a greater power than the power to mortgage same.

In 13 Fletcher Cyc. Corps., Perm. Ed. paragraph 797, at page 97, it is said:

“But while the weight of authority denies to the majority stockholders the power to sell all the corporate property where the Corporation is solvent and prosperous, there are decisions authorizing such a sale in any case where the majority deem it expedient so to do, and the trend of the later decisions seems to be in favor of permitting such a sale by the majority against the dissent of minority stockholders, when deemed expedient. ’ ’

While the above quotation has reference to business Corporations, we think the rule is applicable to this case. The sale and exchange by Eiverdale will not have the affect of dissolving the Corporation and abandoning the enterprise, but in the opinion of the Board it will have the opposite effect. The record shows that the Board gave consideration to the purposes of the Club for which it was organized and that the primary interest of most members was in having available, for themselves and their families, more adequate golf, clubhouse, and other facilities in as nice environment as available. The Board also gave consideration to the Club’s overall membership, both now and as it will probably be in the future, the prospect for better facilities and their financing at both the proposed location and at.the present site, and both Boards, both outgoing and incoming, unanimously recommended the sale and exchange of said property.

Courts should be reluctant to interfere with the internal government of benevolent corporations. There are adequate provisions in'our Benevolent Corporation Law to permit Eiverdale to establish its own rules and regulations governing the acceptance or rejection of the Pleasant Yalley proposal, but its members have not seen fit to establish snch rules and regulations defining the number of votes necessary to approve the Pleasant Yalley proposal. Such being the state of the record it our duty to set the standard. We, therefore, approve the modern trend of authorities and state under the facts in this case that the rule should be that the Board of Governors of Riverdale and its officers shall have power to approve the Pleasant Yalley proposal when a majority of its members having voting rights have first approved same. They not having done so, the decree of the lower Court is affirmed. 1

Ward, J., disqualified and not participating.


source: Caselaw Access Project

author: Carleton Harris, Chief Justice.

license: Public Domain

text:
    Peaker v. Powell.
    5-3712
    398 S. W. 2d 58
    Opinion delivered December 20, 1965.
    [Rehearing denied February 7,1966.]

      Keith, Clegg & Eckert, for appellant.

      Joe D. Woodward and Lewis D. Smith, for appellee.
   Carleton Harris, Chief Justice.

Appellee, Delbert Powell, instituted suit against appellants, Don H. Peaker and Augusta Peaker, his wife, to recover the sum of $9,313.13, representing an alleged overpayment in the purchase of a certain oil payment, payable from production of oil and gas, and frequently referred to in the pleadings as a “vendor’s lien.” After the filing of an answer, which in effect denied the pertinent allegations of the complaint, the court, sitting as a jury, held for appellee, and entered judgment against appellants in the amount sought, $9,313.13. Prom this judgment, appellants bring this appeal.

The background of the litigation is as follows:

Appellants, by letter, on September 12,1957, and two telegrams bearing the same date, agreed to sell to appellee “all of our right, title and interest in, on and upon and to the real and personal property oil and gas leasehold interest, vendor’s lien interest in Sections 27 and 28, Township 15 South, Range 15 West, Ouachita County, Arkansas, less and except the Southwest Quarter of the Southeast Quarter of Section 27, Township 15 South, Range 15 West, Ouachita County, Arkansas.” The trial court rendered an opinion, setting out the pertinent facts, from which we quote :

“The consideration for said sale was the sum of $200,000.00 and this sum was paid hy * * i! $35,000.00 check, together with payments made for the defendants, and which payments are set out in a letter dated December 2, 1957, from N. P. Powell to Don H. Peaker, * * * together with a letter * * * from Don H. Peaker to Delbert Powell, explaining some of- the bills that were paid by Powell for Peaker and credited by Peaker on the $200,000.00 owed by Powell to Peaker. .
“This law suit arose as a result of a vendor’s lien, which the defendant Peaker had retained in some of the properties here involved to secure $38,909.65, together with 6% interest, and which vendor’s lien was also assigned to the plaintiff by the defendant as a part of the deal for which the plaintiff would pay the defendant the sum of $200,000.00.
“The vendor’s lien was assigned to the plaintiff by the defendants in an instrument dated October 12, 1957, and which instrument states that 'as of September 1, 1957, there was remaining due the sum of $21,172.94, together with interest at the rate'of 6% per annum, on said sum. This remaining balance proved to be incorrect and by an assignment, dated January 30, 1958, the defendants executed a corrective assignment of the vendor’s lien and in said corrective assignment it is stated that as of November 1, 1957, there remained due the sum of $11,859.81, together with interest at the rate of 6% per annum on said sum.
“The difference between these two sums, which is $9,313.13, is the amount involved in this law suit.”

Powell testified that the Peakers had acknowledged their indebtedness to appellee in this amount, and had promised to pay it, but bad not done so. This testimony was not denied by appellants, and, in fact, neither appelant testified. The only testimony offered by appellants was that of Beverly Johnson, who testified that, while at Mr. Powell’s ranch near Waco, Texas, with several other people, just before going on a dove hunt, the Peakers sold all of their interest in certain oil properties to Powell for the sum of $200,000.00.

Appellants contend that any purported claim by appellee is barred by the statute of limitations, and they also argue that, under the agreement of sale, the various properties were not to be considered separately, but rather, all interests, held by appellants in the several properties, were being sold to appellee for the lump sum of $200,000.00; that the vendor’s lien was included in this total amount.

In arguing that the suit is barred by the statute of limitations, appellants take the position that the cause of action herein is one to recover for money paid by mistake, and is thus barred by the three-year statute of limitations. We agree with the trial court that this contention is unsound, for perhaps several reasons, but one fact is sufficient to enable us to determine that there is no merit in this assertion. The trial court found that it was

“* * * clear from the evidence that the mistake, if that is what is involved, was made on October 12, 1957,

when Don H. Peaker and wife assigned the vendor’s lien involved to the plaintiff and that if the cause of action to recover as a result of such mistake is what is sued on here, then said mistake occurred on October 12, 1957, and the cause of action should date from that date and hence would .be within the three year period involved when the suit was filed on September 30, 1960.”

The original assignment of the vendor’s lien, although the instrument states that it is to be effective from September 1, 1957, was executed on October 12, 1957, and we think this date is controlling. This suit was accordingly filed in time.

As to the second argument, we certainly can see no reason, nor necessity, for the execution of the corrective assignment of January 30, 1958, if appellants are right in their contention. This assignment specifically states:

“It is expressly understood and agreed between the parties hereto that this Assignment is given in lieu of and instead of a certain Assignment of Vendor’s Lien by and between the parties hereto dated October 12, 1957.”

The trial court found that the amount due,

“* * * which was secured by the vendor’s lien, was unquestionably a factor in the minds of the parties when the consideration was agreed upon. The testimony shows that while negotiations were carried on, the various interests owned by the defendants were considered .and discussed, and the actions of the parties subsequent to these discussions show that they were aware of the vendor’s lien interest and were concerned with the balance due thereon.
“It therefore appears that it was contemplated by the parties that the exact amount remaining due and secured by the vendor’s lien would be ascertained and the actions of the parties show that they contemplated that adjustments could be made when the exact amount due was ascertained and that pursuant to that understanding the corrective assignment of the vendor’s lien was made. In fact this appears to be the only interest conveyed which was capable of exact valuation and when it was determined that the indebtedness secured by the vendor’s lien was over $9,000.00 less than originally thought, the defendants executed a corrective assignment of said lien and agreed to pay the $9,313.13 to the plaintiff.”

Here, we are, of course, only concerned with whether there was substantial evidence to support the judgment of the trial court, and, under the facts herein enumerated, we are unable to say that the evidence offered by appellee was not of a substantial nature.

Judgment affirmed.

       From the testimony:
      “Q. Tell the court briefly the negotiations that led up to this agreement sale, and what the terms of the agreement were, as you remember it?
      A. Well, I don’t know what led up to it. Every one was just down there, and I believe we were going on a dove hunt, may be, and one, either Mr. Powell, or Mr. Peaker said to the other one something about either selling or buying the Snow Hill properties, and the conversation started from there, and uh — (interrupted)
      Q. What was the purchase price agreed upon at that time?
      A. $200,000.00.
      Q. And what was to be sold to Mr. Powell for the $200,000.00?
      A. As I recall it, all of Mr. Peaker’s interest in the Snow Hill field, in the Laney, the Reynolds Brothers, and the Reynolds-Berg leases, and a lien he was holding on Mr. Grandbush.
      Q. Was that the vendor’s lien, that is referred to here as the vendor’s lien?
      A. Yes, sir.”


author: Ed. F. McFaddin, Associate Justice.

text:
    Nutt v. Nutt.
    5-3695
    396 S. W. 2d 930
    Opinion delivered December 20, 1965.

      James R. Hoioard, for appellant.

      Shaver, Tackett and Jones, for appellee.
   Ed. F. McFaddin, Associate Justice.

By this appeal the appellant, Victor L. Nutt, challenges the order of the Chancery Court which requires him to contribute $230.00 per month for the support of his two minor children. Appellant claims the amount is excessive.

Appellant and appellee are the parents of two children; one boy is now 10 years of age and the other is three years of age. When Mr. and Mrs. Nutt were divorced in November 1963 the Court awarded Mrs. Nutt the care and custody of the children and required Mr. Nutt (inter alia) to pay alimony of $125.00 per month and also $200.00 per month for support of the children. No appeal was perfected from that decree.

In January 1964 Mr. Nutt sought to have the amounts reduced, stating that his total earnings were “the sum of $8045.00 annually, and that out of this sum is withheld the regular ■ deductions for Social Security, taxes, and the sum of $11.26 per month insurance which covers the plaintiff’s and defendant’s two minor children.” The said petition for reduction of payments was heard by the Chancery Court on December 30, 1964 and resulted in an order which, inter alia, eliminated all alimony payments to Mrs. Nutt and fixed the amount of support payments for the children at $230.00 per month.

We deem it unnecessary to detail all the financial affairs of these litigants.’ It is sufficient to say that a careful review of the record shows that the evidence fully supports the findings and order of the Chancery Court. Mrs. Nutt is teaching music to support herself, and has to go to a nearby town two days a week to teach. She, therefore, must have a maid or “baby-sitter” to look after the two children. Mrs. Nutt detailed the expenses of the children; and the amount fixed is fair and reasonable. Mr. Nutt claims he is unable to pay such amount. The record shows that he now has “take-home pay” of $7440.00 per year, with a possible increase in a short time. This father, with a net income of $7440.00 per annum, is certainly able to pay $2760.00 per annum for the support of his only two children.

Affirmed.


text:
    Gilmore v. Gilmore.
    5-3720
    396 S. W. 2d 936
    Opinion delivered December 20, 1965.

      J. B. Milham, for appellant.
    No brief filed for appellee.
   Ed. F. McFaddin, Associate Justice.

The Saline Chancery Court adjudged James T. Gilmore guilty of contempt and sentenced him to sixty days in jail, and we are asked to review and reverse that order.

James T. Gilmore and Moreau Gilmore were the parents of three children, being two girls and one boy. The Gilmores were divorced several years ago and Mrs. Gilmore has the care and custody of the children, with Mr. Gilmore to contribute to their support. He has several times been found guilty of contempt for failure to make the contribution payments which, by the latest order, were fixed at $8.50 a week. On June 10, 1965 he was again cited for contempt for failure to make such payments; and a hearing was held on that citation on June 24, 1965. At the conclusion of the hearing the Chancery Court made the following finding and order:

‘ ‘ That defendant has been cited before this Court seven (7) times for non-payment of child support; that he has been employed since January of 1965 and has made no payments for child support since prior to September 17, 1964, at which time he was sentenced to ten days in jail for contempt of Court for non-payment of child support; .... he is now behind in the total of $506.00; and the Court finds that he is in contempt of this Court and that he has shown no excuse for his failure to comply with the prior Orders of this Court to pay child support. “It is therefore, by the Court, CONSIDERED and ORDERED that the defendant be and he is hereby to serve sixty (60) days in jail; provided however, that the defendant may purge-himself of contempt of Court by paying the sum of $506.00 to the plaintiff through the registry of this Court; otherwise an immediate commitment is hereby ordered to be made by the Clerk of this Court. ’ ■

It is the above copied order that James T. Gilmore now asks us to review and reverse; and he argues three points.

I.

Appellant’s first point is: “The Chancellor erred in holding appellant in contempt of court for failing to pay support to the two girls after they became 18 years old.”

The evidence shows that the Gilmores have three children. One is a daughter, Billie, who is past 18 years of age. The monthly payments had originally been $12.50 per week, but when Billie reached 18 the payments were reduced to $8.50 per week. The other two children are: a boy aged 13, who is in the seventh grade at school; and a daughter, Tena, aged 20, who is crippled and has been crippled since birth. Even with such defect she has completed one year of college and is attempting to qualify herself to be self-supporting and is being aided by the Arkansas Rehabilitation Service. In his first point Gilmore insists that the Court order finding him guilty of contempt was in error be canse the Court was requiring him to contribute to the partial support of his cirpplecL daughter. When Mr. Gilmore made this contention in the Lower Court, the Chancellor reminded him that this was a case in which he was being cited for contempt, and not a case in which he was asking that the weekly payments be reduced. Assuming, but certainly not holding, that the father in this case would be held not liable for the support of his crippled daughter because she was over the age of 18 years, nevertheless, he should have filed a motion and sought a hearing on that point. He could not wilfully disobey the order to pay $8.50 a week and then, when cited for contempt, seek to have the order changed. Casey v. Self, 236 Ark. 496, 367, 367 S. W. 2d 114; Carnes v. Butt, 215 Ark. 549, 221 S. W. 2d 416. We find no merit in Mr. Gilmore’s first point.

II.

Mr. Gilmore’s second point reads: “The Chancellor erred in committing appellant to the County Farm in Phillips County, Arkansas, or any other farm.” This point was raised for the first time in the appellant’s brief in this Court. We have carefully examined the transcript and there is not a line in the testimony or the Court order which makes any reference to Mr. Gilmore being committed to any place except the jail. We have heretofore copied the order and it says that he will be confined sixty days in jail but provided that he can purge himself of contempt by paying $506.00. Mr. Gilmore filed a petition in this Court for bail pending our hearing, and we granted the motion; so he may yet purge himself of contempt. At all events, there is nothing in the record on which Mr. Gilmore can predicate his second point.

III.

Mr. Gilmore’s third point reads; “The order and decree of the Chancellor is against the preponderance of the evidence, in that the evidence does not prove that appellant wilfully refused to make the payments, and the evidence failed to show that appellant legally owed the amount of $323.00 accumulating since September 17, 1964.” There is no merit to this point. Mr. Gilmore admitted that he was making $103.07 take home pay every two weeks. Surely a man making that much money can contribute $8.50 a week to the' support of his children. With his pay what it is and his continuous refusal to make the support payments, 'the Chancery Court was thoroughly justified in the contempt order here involved.

Finding no error, the judgment of contempt is in all things affirmed.


author: George Bose Smith, J.

text:
    Freeman v. Jones.
    5-3723
    396 S. W. 2d 931
    Opinion delivered December 20, 1965.

      Jeff Mobley and William R. Bullock, for appellant.

      Joe Gooclier and K. Ml. Parsley, for appellee.
   George Bose Smith, J.

In August of 1963 the appellee Cena Belle Jones and her husband George Jones were involved in a collision between a pickup truck in which they were riding and a gasoline truck being driven by the appellant, J. D. Freeman. Two months after the accident George Jones suffered a fatal heart attack. Mrs. Jones wás appointed administratrix of his estate. She brought this action for her own personal injuries and for her husband’s wrongful death, alleging that his heart attack was attributable to the injuries he sustained in the collision. The jury awarded Mrs. Jones $7,500 for her own injuries, but the verdict was against Mrs. Jones in her capacity as administratrix. The only question presented by the direct appeal is whether the verdict in favor of Mrs. Jones is excessive.

George Jones was driving the pickup truck. Mrs. Jones testified that she was thrown against the windshield with such force that the glass was shattered. In addition' to the ensuing injuries to her head and neck she sustained a cut over her eye, lacerations to her face, and injuries to her shoulder, her arm, her chest, and her leg. Fine particles of glass were embedded in her scalp and face, remaining there for as much as a month. For the first week after the accident she was unable to sleep or even to lie down. She was confined to a hospital for four days and incurred medical expenses that may have been as much as $500. (The exact figure cannot be determined, for some of the medical bills included services rendered to both the husband and the wife.) At the trial, eighteen months after the accident, Mrs. Jones testified that she had not completely recovered, that she still suffered pain in her neck and in her arm.

The responsibility for determining the recoverable damages in an action for personal injuries is primarily and peculiarly a matter for the jury. We are not at liberty to disturb the verdict unless the award is so palpably excessive that it shocks the conscience of the court or indicates that the jurors were motivated by passion or prejudice. Alexander v. Botkins, 231 Ark. 373, 329 S. W. 2d 530 (1959). We cannot say that the allowance in this case is so excessive as to demand corrective action on our part.

By cross appeal Mrs. Jones contends that the trial court erred in directing a verdict in favor of the other two defendants,- A1 Morgan and American Oil Company. We 'find no merit in either contention.

Mrs. Jones alleged in her complaint that at the time of the collision Freeman was driving a gasoline truck owned by his employer, A1 Morgan. She rested her case, however, without having offered any substantial evidence to show that Morgan owned the truck or that he was Freeman’s employer. The state police officer who investigated the accident was called as a witness by the plaintiff. She now relies upon this excerpt from the officer’s testimony to establish her case against Morgan:

“Q. I’ll ask you if on August 19, 1963, you investigated an accident on Highway 27 out here approximately two and a1 half miles from Dardanelle, between — that occured between one George T. Jones and a truck owned by A1 Morgan and driven by one J. D. Freeman?
“A. Yes, sir, I did.’’

True, the question assumed that Morgan owned the truck, but in our opinion the officer’s answer cannot be regarded as anything more than a statement that he investigated the accident. He certainly was not being called upon to express an opinion, which could only have been based upon hearsay, that Morgan was in fact the owner of the truck. We may fairly put the question: Could this officer have been convicted of perjury upon proof that Morgan did not own the truck?..Obviously not. The court was right in dismissing the action against Morgan when the plaintiff elected to rest her case.

The third defendant was American Oil Company. Mrs. Jones testified that the name of this company (or at least the word “American”) was painted on the gasoline truck. There is no proof, however, either that the company owned the truck or . that the driver, Freeman, was its employee. Thus the case does not present the fact situation that was involved in cases such as Mullins v. Ritchie Grocer Co., 183 Ark. 218, 35 S. W. 2d 1010 (1931). To the contrary, Freeman, testifying for the defendants after the action against Morgan had been dismissed, stated that he was employed by Morgan and that Morgan owned the gasoline truck. This uncontradicted testimony rebuts any inference that the jury might otherwise have drawn from the fact that American’s name was painted on the gasoline truck. Even though Freeman’s testimony is not to be considered as undisputed, there is still no affirmative evidence to show that Freeman was acting as the agent or employee of American Oil Company.

Affirmed.


author:
Paul Ward, Associate Justice.
      Jim Johnson, Associate Justice

text:
    Finkbeiner v. The First Pyramid Life Insurance Co. of America.
    5-3722
    397 S. W. 2d 130
    Opinion delivered December 20, 1965.

      Eichenbaum, Scott S Miller, for appellant.

      W. B. Brady, for appellee.
   Paul Ward, Associate Justice.

Christian E. Finkbeiner was killed April 1, 1964 when the private aircraft, which he was piloting at the time, crashed. At the time of his death the deceased was insured under Policy No. WG-162-4, issued by The First Pyramid Life Insurance Company of America’ (hereafter referred to as appellee), with his wife as the beneficiary.

On September 2, 1964 the deceased’s wife, Dorothy Mae Finkbeiner (hereafter referred to as appellant), filed suit against appellee to recover $30,000 under the terms of said policy. The policy provided life insurance coverage in the amount of $15,000 and it also' provided accidental death benefits in the same amount.

In answer to the above complaint appellee admitted it owed appellant the sum of $15,000 for the death of her husband, but denied it owed her a like amount (or any amount) based on his accidental death.

The trial'judge, sitting as a jury, found (from the pleadings, the exhibits, and the stipulation of facts) that appellee should pay appellant the sum of $15,000 (under the terms of the policy) for the death of her husband, but that nothing was due appellant “by reason of the accidental death provisions in said policy.....”

For a reversal, appellant’s sole contention is that the trial court misconstrued the applicable provisions of the insurance contract as applied to the admitted facts. Therefore it is necessary to set out below the pertinent provisions of the insurance contract.

When originally issued that part of the policy relating to accidental death read:

“ACCIDENTAL DEATH, DISMEMBERMENT AND LOSS OF SIGHT BENEFITS
If, during the continuance of this Policy, the Insured shall sustain bodily injury, solely by accidental means, which shall result directly and independently of all other causes in any one of the losses stated below, within 90 days of. the date of accident, except for and subject to the date of accident, except for and subject to the exclusions and subject tó the limitations provided hereinafter, the Company, upon receipt of due proof, thereof, will pay the sum set opposite the-stated loss, but only one, the largest, of the sums, will be paid for losses resulting from one accident:
For Loss of: Amount Payable
Life The Principal Sum
“Exclusions. — The insurance with respect to Accidental Death, Dismemberment and Loss of Sight Benefits does not cover: (1) Accident or loss caused or contributed to by (a) bodily injury arising out of or in course of employment; (b) bodily or mental infirmity, or as a result of medical or surgical treatment thereof; (c) ptomaines or bacterial infections, except only septic infections of and through a visible wound accidentally sustained; (d) suicide, or any attempt thereat, while sane or insane; (e) war or any act of war; or (f) travel or flight in any aircraft, except as a fare-paying passenger on a licensed passenger aircraft provided by an incorporated passenger carrier on a regular flight betiveen established airports . . . .”; (Emphasis ours.)

Later the policy was modified as follows:

‘ ‘ This Supplementary Contract is Attached to and Forms a Part of Policy No. WG 162-4. Exclusions Under Accidental Death, Dismemberment, and Loss of Sight Benefits shall be amended by Deletion of line (a), ‘Bodily Injury Arising out of or in course of Employment; ’ ”

Appellant makes an ingenious argument which, in substance, is hereafter summarized. When the policy was first written it clearly excluded liability for any injury arising out of or in the course of the deceased’s employment; this fact would have prevented recovery here because the deceased was an employee of the Little B.ock Packing Company; when appellee struck out the above exclusion it knew the deceased wak an employee; therefore appellee meant to pay for any injury to deceased occurring during his employment. At any rate, says appellant, the language used by appellee in its policy is ambiguous and therefore the construction placed on it should be most favorable to the insured.

We agree with appellant that if there is any ambiguity in the policy language herq it should be construed as above suggested. We have many times announced this rule. See: The Traveler Protective Association of America v. Sherry, 192 Ark. 753 (p. 757), 94 S. W. 2d 713, and St. Paul Fire & Marine Insurance Co. v. Kell, 231 Ark. 193 (p. 195) 328 S. W. 2d 510. However, we are-unable to see where any ambiguity exists in the case under consideration here. In the case of Aetna Life Insurance Company v. Spencer, 182 Ark. 496 (p. 500), 32 S. W. 2d 310, we said:

“Contracts of insurance should receive a reasonable construction so as to effectuate the purposes for which they are made.”

The above statement was cited with approval in Milwaukee Ins. Co. v. Wade, 238 Ark. 565 (p. 567), 383 S. W. 2d 105. Applying the above rule to the pertinent parts of the amended policy (as they apply only to the admitted facts of this case) the meaning, we think, becomes clear and unambiguous. Thai is: If the deceased “shall sustain bodily injury solely by accidental means .... resulting in death . . .” appellee “will pay the sum ... of $15,000 ...” HOWEVER “the insurance . . . does not cover” an accident or loss caused or contributed by . . . (f) travel or flight in any aircraft except á fare-paying passenger on a licensed passenger aircraft . . . .” It is conceded the deceased was not on a “passenger aircraft” when he was killed. It is hard to see how appellee could have used plainer language to say it would not be liable if Finkbeiner was killed while riding in a private plane.

In appellant’s brief we find this statement:

“What is the purpose of an accident policy issued only to employees if not to protect against accidents in the course of employment! What meaning can an accident policy issued to employees have if it does not cover accidents in the course of employment!”

Our answer to the above question is that the policy did (by its terms) cover any kind of an accidental injury (to an employee) EXCEPT the kind in question. Appellant apparently overlooks the fact that there are many kinds of accidents — and that the policy covered all but one.

Affirmed.

Johnson, J., dissents.

Jim Johnson, Associate Justice

(dissenting). I do not agree with the majority view. As I understand the facts, the policy originally excluded accident or loss caused or contributed to by travel or flight in any aircraft, except as a fare paying passenger on a licensed passenger aircraft, but also excluded death due to bodily injury arising out of or in the course of employment.

By supplemental contract Or amendment the exclusion of bodily injury arising out of or in the course of employment was removed.

Appellant filed suit claiming that under the circumstances the removel of the exclusion for death in the course of employment extended coverage of the accidental death benefits to any death of the insured caused or contributed to by bodily injury arising out of or in the course of his employment, whether caused or contributed to by travel or flight in a private aircraft.

It is conceded that this death arose out of and in the course of Chris Finkbeiner’s employment.

Evidently this is a case of first impression in the United States on the exact question here involved.

In the absence of authority to the contrary it is my view that the specific removal (by separate rider) of the exclusion had the effect of specifically including in the amended policy the reverse of the removed language, thereby effectively making the policy read, “the company will pay for death arising out of or in the course of employment. ’ ’

Treating the policy as being so worded and following the settled rule that an intent to exclude coverage should be expressed in unmistakable language, Milwaukee Ins. Co. v. Wade, 238 Ark. 565, 383 S. W. 2d 105, Riverside Ins. Co. v. McGlothin, 231 Ark. 764, 332 S. W. 2d 486, it is my conclusion that at least the policy in this case was made ambiguous by the amendment.

Having thus concluded, I would apply the universal rule that ambiguity in insurance policies is resolved in favor of the insured.

For the reasons stated I respectfully dissent.


author: Sam Robinson, Associate Justice.

text:
    Winters v. Beck.
    5176
    397 S. W. 2d 364
    [Rehearing denied January 24, 1966.]

      John W. Walker, for appellant.

      John T. Jernigan, for appellee.
   Sam Robinson, Associate Justice.

On the 13th day of May, 1965, petitioner, Robert Winters, was convicted in the Little Rock Municipal Court of immorality, a misdemeanor under the provisions of Little Rock Ordinance 25-121. His punishment was fixed at 30 days in jail and a fine of $254:00, which included the costs. He has filed a petition for a writ of Habeas Corpus, or alternatively for a Writ of Error Coram Nobis. He alleges that he is indigent and did not have benefit of counsel at his trial in the Municipal Court. He also states that he has sought conviction relief, to no avail, in both the Little Rock Municipal Court and in the Pulaski Circuit Court.

In his petition here, petitioner alleges that his .constitutional rights were violated because no lawyer wás appointed to defend him on the misdemeanor charge in Little Rock Municipal Court. When his case was called for trial, he did not indicate that he wanted an attorney and he did not ask that the case be continued. We have held that no duty is imposed upon the trial court to appoint counsel for a defendant charged with a misdemeanor. Kirkwood v. State, 199 Ark. 879, 136 S. W. 2d 174; Wimberly v. State, 214 Ark. 930, 218 S. W. 2d 730.

On the strength of Ark. Stat. Ann. § 43-1203 (Repl. 1964), the courts of this State have always appointed attorneys to represent indigent defendants in felony cases. Thousands of misdemeanor cases are tried in the Municipal Courts of Pulaski County annually. In most of these cases the defendants are not represented by counsel. But petitioner contends that on the strength of Gideon v. Wainwright, 372 U. S. 335, it is now the duty of the courts to appoint attorneys for indigents in misdemeanor cases. We do not so construe Wainwright. There, the court was dealing with a felony case where the defendant had been sentenced to five years in the penitentiary. Here, the petitioner, Winters, had 30 days to take an appeal to the Circuit Court. He did not appeal, although the procedure for appealing from the Municipal Court is very simple. The services of an attorney are not required at all.

Petition denied.


text:
    Heekin Can Co. v. Watson.
    5-3688
    396 S. W. 2d 929
    Opinion delivered December 20, 1965.

      Reid and Burge By: Donald E. P rev Met, for appellant.

      H. G. Partlow, Jr., for appellee.
   Sam Robinson, Associate Justice.

This is a workmen’s compensation case. Claimant contends that he received a hack injury while working for appellant in December, 1961. The Workmen’s Compensation Commission denied compensation. On appeal to the Circuit Court, the decision of the Commission was reversed. The employer, Heekin Can Company, has appealed to this court.

Appellant contends there is substantial evidence to sustain the finding of the Commission, and that the Circuit Court was, therefore, in error in reversing the decision of the Commission.

In the year 1958, the employee, while working for appellant, Heekin Can Company, received an injury to his back necessitating the removal of one, and a part of another vertebra. At that time he was awarded compensation for 20% permanent partial disability. He continued to work for appellant company until the 26th day of December, 1961. There is substantial evidence that he was discharged at that time because of a reduction in the working force. He did, however, go to see a doctor on the 15th day of December, claiming an ailment to his back. But it appears that he had been bothered with his back for about two weeks at that time.

On the 23rd of January, 1962, about 30 days after he left the employment of the Heekin Can Company, he went to work for the Scott Valve Company and worked for that company continuously until April 22, 1963, at which time he became disabled with the condition of his back and was operated on shortly thereafter. He worked with valves weighing up to 400 pounds, and his foreman testified that during the 15 months he worked for Scott he never made any complaint about his back and did everything that he was told to do.

The facts as outlined would constitute substantial evidence that appellee’s back was injured while working at Scott Valve Comapny. In these circumstances we cannot say there is no substantial evidence to sustain the Commission’s finding that appellee’s disability, which began April 22, 1963, was not due to any injury he claims to have received while working for appellant, Heekin Can Company, 15 months previously. If the employee’s disability is due to the injury he received in 1958, a recovery at this time is barred by the statute of limitations. Ark. Stat. Ann. § 81-1318 (b) (Repl. 1960).

We have held many times that if there is any substantial evidence to sustain the findings of the Commission, the decision will not be set aside on appeal.

Reversed.


author: Jim Johnson, Associate Justice.

text:
    Markham v. Evans.
    5-3699
    397 S. W. 2d 365
    Opinion delivered December 20, 1965.
    [Rehearing denied January 24, 1966.]

      Bob Scott, for appellant.

      Jeff Duty, for appellee.
   Jim Johnson, Associate Justice.

This appeal involves an action to recover for room and board for three head of cattle and damage to a meadow.

Tie case originated in the Justice of the Peace Court of War Eagle Township, Benton County.

Prom the record it appears that the cattle were the next door neighbors of appellees Len Evans and his wife. - The cattle were ranging on land owned by appellants Tom E. Markham and wife. In the absence of the owners of the land who were residents of Sebastian County the cattle evidently determined that the grass was greener on the other side of the fence and proceeded to invite themselves in. Upon discovering the strangers on their property appellees took them in. The cows were impounded and given tender (if not loving), expensive care. After a time appellees became weary of their uninvited guests and sought compensation for their hospitality, including damages to the fescue grass in their meadow.

Upon a verbal complaint before the local magistrate appellees asked for a judgment against appellants in the amount of $295.00. The justice issued summons to the constable of Sebastian County for appellants, which was served in Sebastian County. Prior to hearing, appellants filed a motion to quash services of summons. The motion was overruled and judgment against appellants was entered.

Appellants then filed their affidavit for appeal, reserving their objection to the jurisdiction of the court, which appeal was lodged with the Circuit Court of Benton County, and again raised their objection to the jurisdiction of the Court, which was sustained. The circuit court then reversed its order quashing the service of summons and setting aside the judgment of the justice of the peace, ordered the cattle sold at public auction and the proceeds deposited with the clerk of the court. The cattle were sold for humane reasons, without objection, and the money was deposited as ordered.

The Chancellor of Benton County, sitting as circuit judge on exchange, then overruled the motion to quash, holding the record to be insufficient to rule on the matter, since the summons had not been included in the record. The chancellor further ordered the justice to complete and correct the record by certifying a copy of all process and papers filed in the justice court, including a copy of the summons issued and served, within one week, which was complied with by the justice of the peace.

Appelants then revived their special appearance and motion to quash service of summons, which was sustained by the chancellor, setting aside the judgment of the justice of the peace.

Appellees then filed a petition against the circuit clerk in order to obtain the funds which had been deposited with the circuit clerk, and a demurrer to that petition filed by the circuit clerk was sustained. Appellees then filed another petition asking the court to render judgment in favor of appellees in the 'amount of $400.00, on in the alternative to have the money held by the circuit clerk delivered to appellees. Judgment was rendered on this petition in favor of appellees. This appeal followed.-

For reversal appellants contend here as they have obviously contended every step of these proceedings that neither the justice of the peace of War Eagle Township nor the Benton Circuit Court had jurisdiction of the persons of appellants, or either of them, and the judgment rendered against appellants is void ab initio.

With this contention we agree. The jurisdiction of the -justice of the peace is coextensive with the county in which he is elected or appointed, or county wide. Ark. Stat. Ann. § 26-305 (Repl. 1962). A justice of the peace has only jurisdiction within his county and may not-issue process to be served upon a defendant in any other county. Ashby v. Milligan, 126 Ark. 118, 189 S. W. 1059.

The jurisdiction of the circuit court, in any appeal from the justice of the peace, is derived from and is dependent upon the appeal, and the circuit court may not exercise its original jurisdiction. The circuit court, in its appellant jurisdiction, may not render any judgment which the justice of the peace could not have rendered originally. Whitesides v. Kershaw, & Driggs, 44 Ark. 377.

In the absence of jurisdiction to render an in personam judgment against appellants, it follows that the judgment here is void from the beginning. This being-true we are confronted with the question of what to do with the money derived from the sale of the cattle. Appellees contend that appellants ,are the owners of the cattle. Appellants have yet to contend either way. (Of course their appeal in this case indicates their claim to the cattle.) We view the money as standing in the stead of the cattle. The state of the record being thus, we are impelled to the conclusion that the case must be reversed and the cause remanded to the Benton Circuit Court with directions to impound the money in the registry of the court, there to be held subject to the claims of the owners or the claims of appellees properly pursued under our estray or other laws.

Reversed and remanded with directions.

George Rose Smith J. concurs in the result.


author: Jim Johnson, Associate”Justice.

text:
    Tribble v. Lawrence.
    5-3706
    396 S. W. 2d 934
    Opinion delivered December 20, 1965.

      Spencer & Spencer, for appellant.

      Ben D. Lindsey, for appellee.
   Jim Johnson, Associate”Justice.

This is a suit for the purchase price of a washing machine. Appellant Travis Tribble, doing business as Tribble Appliance Company, sold a washer to appellee Jack Lawrence on June 6, 1963. The price after trade-in was $208.00 plus $22.76 time price differential. Appellee signed a conditional sale contract providing for monthly payments. The form used was furnished appellant by B-W Acceptance Corporation, which ordinarily bought appellant’s contracts. The sale to appellee was made after 5:00 p.m., and appellant was unable to contact the credit bureau. When appellant called the credit bureau the following-day he was advised that appellee had bad credit, and B-W later notified appellant that it would not buy the contract because of appellee’s bad credit. Appellee was advised immediately and was asked to pay the purchase price in full, which he agreed to do.

Nothing was ever paid and appellant filed suit on August 8, 1963, in municipal court for only the $208.00 cash balance due, and obtained judgment. This was appealed to circuit court by appellee. On September 29, 1963, the washer was destroyed in a fire at appellee’s home. Trial was held in circuit court on February 12, 1965. The jury returned a verdict for appellee. From judgment on the verdict, appellant has appealed to this court.

For reversal appellant urges that the trial court erred in instructing the jury that under the terms of the contract appellant had the duty to see that the property here involved was insured.

The specific instruction objected to (the objection being to the third paragraph) reads as follows:

“Court’s Instruction No. 2.
“.Now you are instructed that the property involved in this case was sold to the defendant and that the terms and conditions of the sale are set out in the written ‘Conditional Sale Contract’ which was introduced into evidence.
“Now under the terms of this written ‘Conditional Sale Contract’ introduced into evidence, it is provided that the buyer elects to pay for insurance to cover the property purchased.
“And you are instructed that under the terms of this written ‘Conditional Sale Contract’ it was the duty of the plaintiff to see that the property involved here was covered by insurance.
‘ ‘ So, if you find hat the property was destroyed by fire at a time when the written ‘Conditional Sale Contract’ was still in force and effect, then the plaintiff cannot recover from the defendant and your verdict should be for the defendant.”

On the face of the contract, boxed in the center, is the following clause:

“LIFE AND PROPERTY INSURANCE OPTION.
“Buyer elects to include in the time balance hereof, the cost of property protection insurance in accordance with B-W Acceptance Corporation’s property protection plan and term life insurance for the stated term of the contract in the amount of the declining unpaid balance. Buyer designates the individual whose signature first appears below as the insured (said person being a natural person).
“NOT APPLICABLE UNLESS SIGNED.
/s/ Mrs. Jack L. Lawrence
/s/ Jack L. Lawrence

On the back of the contract under “Terms and Conditions” is the following:

“Buyer agrees: That no . . . loss, damage, injury or destruction of said property shall release Buyer from his obligations hereunder; to keep the property insured against fire, theft, and other casualty with the proceeds from such insurance payable to and protecting Seller or its assignee for not less than the total amount owing hereunder.”

The holding in Fort Smith Appliance & Service Co. v. Smith, 218 Ark. 411, 236 S. W. 2d 583, is singularly apt here:'

“In our opinion the contract is not so clear and free from ambiguity that the court could say what it meant as a matter of law. In a situation of this kind it must be left to a jury to determine what was the intention of the parties. Ordinarily it is the duty of the Court to construe a written contract and declare its meaning to a jury, but, where there is a latent ambiguity, parole evidence is admisible to explain the meaning of the parties, and then it is a question for the jury and should be submitted to a jury. Walden v. Fallis, 171 Ark. 11, 283 S. W. 17, 45 A. L. R. 1396; Lutterloh v. Patterson, 211 Ark. 814, 202 S. W. 2d 767; Ellege v. Henderson, 142 Ark. 421, 218 S. W. 831. Regardless of whether the ambiguity is patent or latent, if the intention of the parties is not clear it is a question for the jury. Walden v. Fallis, supra.”

The court properly instructed the jury under the facts here obtaining that they must determine whether the contract was in force and effect at the time the propery was destroyed by fire. However, the court should also have submitted to the jury the interpretation of the conflicting insurance clauses in the light of the attending circumstances of this case, if they found that the contract was in fact in effect. For this error it is necessary that the case be reversed and the cause remanded for new trial. It is so ordered.

Reversed and remanded.


author: Frank Holt, Associate Justice.

text:
    Green v. Shell.
    5-3684
    397 S. W. 2d 363.
    Opinion delivered December 20, 1965.
    [Rehearing- denied January 24, 1966.]
    J. B. Milham and Gladys M. Wied, Benton, for appellant.

      Hall, Purcell & Bosioell and Fred Briner, Benton, for appellee; Wright, Lindsey <& Jennings, Little Rock, Amicus Curiae.

   Frank Holt, Associate Justice.

This is an action by ' a taxpayer, the appellant, to cancel á -written contract for the appraisal of the real and personal property in Saline County and, further, to enjoin the county officials from using the appraisals as an aid in the performance of their duties. The appellant brings this appeal from an adverse decree and contends for reversal that the chancellor erred in holding the contract to be valid.

The appraisal contract in question was entered into pursuant to the provisions of Act 351 of 1949 [Ark. Stat. Ann. § 84-468 et seq (Repl. I960)]. By the terms of this contract a professional appraiser was employed with the approval of the county judge and others as required by the statute. The Act in question authorizing the employment and payment of professional appraisers to aid the assessor in the assessment of property is constitutional. Strawn v. Campbell, 226 Ark. 449, 291 S. W. 2d 508. See, also, Latham v. Hudson, 226 Ark. 673, 292 S. W. 2d 252. Nor can it he said that the contract is deficient in meeting the formal requirmehts of the Act.

The most serious contention for reversal advanced by the appellant is that the contract is invalid because no specific appropriation was ever made by the quorum court authorizing the expenditure of any county funds for the appraisal services. We do not agree with this contention. The Act provides, inter alia, that: “The county court shall be authorized to allow claims for services * * * to be paid from the general fund of the county.” Thus, payment from a specific appropriation by the quorum court is not required. Under the plain provisions of the Act the legislature directed that the county court could allow payment for the appraisal services from the county general fund. To hold otherwise would, in effect, subordinate the authority of the legislature to the action or nonaction of the county quorum court. This would nullify the clear provision of the statute. Jeffery v. Trevathan, 215 Ark. 311, 220 S. W. 2d 412.

We have carefully considered every assignment of error urged by the appellant and find none with merit.

The decree is affirmed.


author: ■Bernard Whetstone, Special Associate Justice. Sam Eobinson, Associate Justice,

text:
    Mitcham v. Ark-La. Construction Co.
    5-3776
    397 S. W. 2d 789
    Opinion delivered December 20, 1965.
    [Rehearing denied January 31, 1966.]

      McMath, Leatherman, Woods & Youngdahl, for appellant.

      William I. Preioett, for appellee.
   ■Bernard Whetstone, Special Associate Justice.

This-proceeding originated in this court as a Petition for writ of Prohibition. During oral argument it was stipulated that the entire matter be treated as an appeal and' considered and decided here on its merits (in view of the-time element involved in the facts of the case and also-in view of the question involved being one of public interest).

In this converted form, involved is the question of the jurisdiction of the Chancery Court below to entertain a petition on behalf of building construction contractor (s) to enjoin (peaceful) picketing by a labor organization at a building construction project and to issue an injunction forbidding such picketing.

On July 8th, 1965, Mid South Homes of Arkansas, Inc., contracted to construct an apartment project for the Malibu Corporation of El Dorado, Arkansas. This contract was assigned without consideration by Mid South to Ark-La Construction Company, Inc. The builder contemplates completion in January, 1966.

On August 25th, 1965, Carpenters Local Union No. 1684 began picketing the construction site with signs alleging low wages and improper working conditions. On August 26th, Mid South and Ark-La jointly filed a complaint in the Chancery Court of Union County that the picketing was unlawful and asking that it be enjoined. On the same day a temporary restraining order issued banning all picketing by the Carpenters Local at the site.

On September 1st, 1965, the defendant Local filed motions asking the court to dismiss the complaint and restraining order because the dispute was subject to the exclusive jurisdiction of the National Labor Relations Board under the National Labor Relations Act, 29 U. S. C. A. Sections 141-148. Plaintiff Mid South admitted that it was subject to the jurisdiction of the National Labor Relations Board and moved for a nonsuit on September 3rd .leaving plaintiff Ark-La Construction Company, Inc., as the sole plaintiff with the contention that Ark-La, due to insufficient volume of interstate inflow and/or outflow value output (to be discussed later in this opinion) was not. Defendant contended that even though plaintiff Mid South took a nonsuit, that the relationship (identity of officers, ownership etc.) of the plaintiffs was so close and interrelated, that the two should be treated as one (thus placing both within the jurisdiction of the National Labor Relations Board). Another contention by the defendant was that, in any event, the value output of the remaining plaintiff (Ark-La) was “arguably” adequate to come within N. L. R. B. standards and thus still pre-empt State Court jurisdiction (since if “arguably” adequate, it remained for the N. L. R. B. to first determine that it had no jurisdiction before any State Court could proceed).

In a final decree, the lower court found that the picketing violated Amendment 34 to the Constitution .of Arkansas (so-called “Freedom To Work” Amendment), that no “labor dispute” existed, and that Ark-La is not subject to N. L. R. B. jurisdiction, and the injunction was made permanent.

On September 8th the defendant below (Carpenters Local) filed a petition for temporary Writ of Prohibition here.

Proceeding to the merits:

Petitioner (whom we will hereinafter refer to as appellant) contends that the conduct in dispute and the parties are subject to the exclusive and primary jurisdiction of the National Labor Relations Board and that the lower (State) Court was thus without jurisdiction relying on such authorities as Taylor v. Bean, 234 Ark. 932, 355 S. W. 2d 602 (1962); International Bro. of Teamsters v. Blassingame, 226 Ark. 614, 293 S. W. 2d 444 (1956) (dissenting opinion); Article VI, cl 2, of the United States Constitution; Garner v. Teamsters Union, 346 U. S. 485 (1953); Weber v. Anheuser-Busch, Inc. 348 U. S. 468 (1955); San Diego Bldg. Trades Council v. Garmon 359 U. S. 236 (1959); Local 438 v. Curry, 371 U. S. 542 (1963); Liner v. Jafco, Inc. 375 U. S. 301 (1964); N. L. R. B. v. Reliance Fuel Oil Corp., 371 U. S. 224 (1963); 12 Arkansas Law Review 354.

Appellant argues that, considered alone and separate from Mid South, that Ark-La is “arguably” within N. L. R. B, standards for jurisdiction ($50,000.00) stating “when an employer’s business is newly established and no annual figures are available, the Board customarily projects over a full year whatever figures on business volume are available .... It is still established that in less than two months there have been interstate purchases of $2,700.00, interstate wages amounting to at least $1,200.00, and interstate subcontracts totaling over $20,000.00. Two months experience at this rate will project to a $143,400.00 total for 12 months. Or, giving the respondent the benefit of every ambiguity, if the $20,000.00 figure applies to all seven months of the projects schedule, the projected interstate inflow figure would total $57,684.00.”

The respondent (whom we will refer to hereinafter as appellee), on the other hand, contends that the Garmon Case and many authorities relied on by appellant, were decided prior to the effective date of the Labor Management Reporting and Disclosure Act of 1959 (29 TJ. S. C. A. Sec. 164) and that “in passing the 1959 Act Congress afforded relief for parties whose disputes fell within the so-called “no man’s land” created by the preemption doctrine under which the parties could not be heard either by the N. L. R. B. or State Tribunals. The 1959 Act gave the State Courts authority to exercise jurisdiction over, employers whose activities did not substantially affect commerce within the jurisdictional standards adopted by the N. L. R. B. In other words, where the N. L. R. B. has adopted a jurisdictional standard establishing certain requirements before it will assert jurisdiction, the State may act in this area”; and appellee relies on such authorities as Marine Engineers Ben. Asso. v. Interlake S. S. Co., 370 U. S. 173, 176; cites Austin v. Painters Dist. Council # 22, 339 Mich. 462, 64 N. W. 2d 550, (Appeal dismissed 348 U. S. 979); Machinists Local No. 924 v. Goff McNair Motor Company, 223 Ark. 30, 264 S. W. 2d 48 (1954); and in a supplemental brief cites such cases as Fair Share Organization, Inc. v. Morris Mitnick, 188 N. E. 2d 840 (Ind. 1963); Cox v. Sup. Ct. of San Berandino County, 346 p. 2d 15 (1959 California).

It was stipulated in the lower court that Mid South had a sufficient inflow and/or outflow of goods or services to put it under the jurisdiction of the National Labor Relations Act. (It is unquestioned that according to the N. L. R. B. standards and the classification involved in the present litigation that this amount is “in excess of $50,000.00.); that prior to the filing of the complaint in the lower court that neither plaintiff made any effort to •obtain any relief from the National Labor Relations Board nor attempted to obtain a determination from it as to whether the subject of this action was within the jurisdiction of the N. L. R. B.; that the incorporators and stockholders of Mid South were Norman Pearah, G. 0, Westbrook, Y. J. Casamento, Jr. and Larry Cooper and that the incorporators and stockholders of Ark-La are Carolyn Pearah and the same Norman Pearah and Y. J. Casamento, Jr. (the common stockholders and the incorporators being Norman Pearah and Y. J. Casamento, Jr.); that the same parties are President and YicePresident of both corporations; that the defendant below, Carpenters Local Union No. 1684 is a labor organization in which employees participate, which govern grievances, conditions of work, etc.

Y. J. Casamento, Jr. was called by the defendant and testified that he was Yice-President of Ark-La as well as Mid South and that he was employed by Ark-La; that Mid South is engaged in the business of building and selling residences in Louisiana and Arkansas; that currently the stockholders is Ark-La are the same stockholders as Mid South i.e. Norman Pearah, Carolyn Pearah and V. J. Casamento, Jr.; there is a different secretary and treasurer of each company; Mid South entered into a contract with Malibu for construction work in El Dorado and there has • been a sign at the site of the construction stating “Builders, Mid South Homes of Arkansas, Inc.”; Mid South was asked to sign the contract-and also Casamento and Pearah signed the contract personally and then the contract was assigned to Ark-La without consideration for performance; Ark-La is qualified to do business in the State of Arkansas with a general contractor’s license with the State of Arkansas and Mid South does not have such a license; Malibu wanted substantial 'assets to protect them in the course of construction and since Ark-La was a new company, Mid South had to sign the contract and also Pearah and Casamento had to personally sign it; Malibu agreed to pay Ark-La $246,000.00; Ark-La is going to get the money to build the job with Malibu; all Mid South owns in the way of construction equipment right now is a pick-up truck; Ark-La owns no construction equipment; Ark-La is handling the job mostly through sxibcontract; some subcontractors operate out of Louisiana and others out of Arkansas; this is the first venture for Ark-La which was organized in May of 1965.

It was stipulated that Carpenters Local No. 1684, the defendant, did not represent any employee of Mid South or Ark-La.

Casamento testified further that there was no protest made about low wages on the job in his negotiations with the labor representatives of the defendant but that the only protest was the failure to use union labor exclusively ; that Ark-La was paying union scale to the people that worked on the job; the two subcontracts with the Louisiana firms totaled a little less than $21,000.00; Ark-La will not have a purchase inflow of goods and services across the state line of more than $50,000.00 during its current fiscal year nor an outflow of more than $50,000.00; Mid South and Ark-La have the same office address in Crossett; Norman Pearah and Carolyn Pear ah are husband and wife; the material for this Malibu job will be purchased in the name of Ark-La and is going to cost more than $50,000.00.

D. R. "White testified that he was Vice-President of Malibu and that the estimated cost of the job in the job was $240,000.00; contract was signed with Mid South with personal endorsements because he did not want to sign with Ark-La since it was such a thin corporation.

There was no other testimony.

Since the enactment of the National Labor Relations Act a series of United States Supreme Court decisions have made it abundantly and increasingly clear that the federal government is vigorously jealous of its •jurisdiction in the areas involved in the present litigation. Probably the outstanding and landmark case on this subject is that of San Diego Building Trades Council, etc. v. Garmon 79 S. Ct. 773, 359 U. S. 236, 1 L. Edi. 2d 860. The following quotation from that opinion is indicative:

“At times it has not been clear whether the particular activity regulated by the States was governed by Section 7 or Section 8 or was, perhaps, outside both of these sections. But courts are not primary tribunals to adjudicate such isstoes. It is essential to the administration of the Act that these determinations be left in the first instance to the National Labor Relaions Board. What is outside the scope of this Court’s authority cannot remain within a State’s power and state jurisdiction too must yield to the exclusive primary competence of the Board, See, e.g., Garner v. Teamsters, etc. Union, 346 U. S. 485, especially at pages 489-491, 74 S. Ct. 161, at pges 165-166, 98 L. Ed. 228; Weber v. Anheuser-Busch, Inc., 348 U. S. 468, 75 S. Ct. 480, 99 L. Ed. 546.’
‘When an activity is arguably subject to Section 7 or Section 8 of the Act, the States as well as the Federal Courts must defer to the exclusive competence of the National Labor Relations Board if the danger of state interference with national policy is to be averted.
To require the States to yield to the primary jurisdiction of the National Board does not insure Board adjudication of the status of a disputed activity. If the Board decides, subject to appropriate Federal judicial review, that conduct is protected by Section 7, or prohibited by Section 8, then the matter is at an end, and the States are ousted of all jurisdiction. Or, the Board may decide that an activity is neither protected nor prohibited, and thereby raise the question whether such activity may be regulated by the States. However, the Board may also fail to determine the status of the disputed conduct by declining to assert jurisdiction, or by refusal of the General Counsel to file a charge, or by adopting some other disposition which does not define the nature of the activity with unclouded legal significance. This was the basic problem underlying our decision in Guss v. Utah Labor Relations Board, 353 U. S. 1, 77 S. Ct. 598, 609, 1 L. Ed. 2d 601. In that case we held that the failure of the National Labor Relations Board to assume jurisdietion did not leave the States free to regulate activities '■'they would otherwise he precluded from regulating. It follows that the failure of the Board to define the legal significance under the Act of a particular activity does not give the States the power to act. In the absence of the Board’s clear determination that an activity is neither protected nor prohibited or of compelling precedent applied to essentially undisputed facts, it is not for this Court to decide whether such activities are subject to state jurisdiction. The withdrawal of this narrow area from possible state activity follows from our decisions in Weber and Guss. The governing consideration is that to allow the States to control activities that are potentially subject to Federal regulation involves too great a danger of conflict with the National Labor policy.’
‘In the light of these principles the case before us is clear. Since the National Labor Relations Board has not adjudicated the status of the conduct for which the State of California seeks to give a remedy in damages, and since such activity is arguably within the compass of Section 7 or Section 8 of the Act, the State’s jurisdiction is displaced.” (Emphasis supplied)

As noted previously, appellee in the present instance argues “it is important to note that the Garmon Case was decided prior to the effective date of the Labor Management Reporting and Disclosure Act of 1959.”

It is also to be remembered that appellant contends that both the issue of (a) interrelation and overlapping of a party admittedly subject to the jurisdiction of the N. L. R. B. with one who may not be so as to cause the Board to treat the two as a whole and thus give it jurisdiction over both and (b) the question of the dollar value inflow and/or outflow of business in interstate commerce, are “arguably” within the jurisdiction of the N. L. R. B.

In view of all this we are impressed with the decision of the Supreme Court of the United States handed down March 15, 1965, in the case of Radio and Television Broadcast Technicians Local Union No. 1264, International Brotherhood of Electrical Workers, AFL-CIO, et al v. Broadcast Service of Mobile, Inc. 380 U. S. 255.

For a clearer understanding of what was involved and decided in that case it is necessary to have additional background information (appearing in the opinion of the State Court (Alabama) from which the appeal came).

The Circuit Court of Mobile County, Alabama, in equity, dissolved a temporary injunction and dismissed the cause on the grounds that the court’s jurisdiction was pre-empted by the National Labor Relations Act. A radio station, which was a member of a chain of stations, had obtained the injunction against Local No. 1264, International Brotherhood of Electrical Workers, et al, to restrain picketing when the radio station refused to employ a certain radio engineer and to require the radio station to bargain through the Local. The radio station also contended that the Local was attempting to force it to violate the Alabama Right to Work Act and other complaints. The Supreme Court of Alabama, in an opinion dated December 12, 1963, 276 Ala. 93, 159 So. 2d 452, reversed the lower court holding that the State Court did have jurisdiction. One of the major reasons for the position taken by the Supreme Court of Alabama was reliance upon the 1959 Amendment to the Labor Management Relations Act of 1957 which is so strongly relied upon by the appellee in the present case. We quote from that opinion:

“Appellant, on the other hand, argues that the entire field of labor relations has not been pre-empted by federal legislation; that there remains a substantial area in which the states may act, and that in fact the activity complained of here has been expressly left to the states by Congress through the enactment of an amendment to the Labor Management Relations Act of 1947, as amended in 1959 (29 U. S. Code Ann § 164 (c) (1) and (2), providing:
‘Section 164(c) (1):
‘ ‘ The Board, in its discretion, may, by rule of decision or by published rules adopted pursuant tó the Administrative Procedure Act, decline to assert jurisdiction over any labor dispute involving any class or category of employers, where, in the opinion of the Board, the effect of such labor dispute on commerce is not sufficiently substantial to warrant the exercise of its jurisdiction-. Provided, that the Board shall not decline to assert jurisdiction over any labor dispute over which it would assert jurisdiction under the standards prevailing upon August 1,1959.” (Emphasis supplied.) ’
‘Section 164(c) (2):
“Nothing in this subchapter shall be deemed to prevent or bar any agency or the courts of any State or Territory (including the Commonwealth of Puerto Rico, Guam, and the Virgin Islands), from assuming and asserting jurisdiction over labor disputes over which the Board declines, pursuant to paragraph (1) of this subsection, to assert jurisdiction.” ’
“We are constrained to agree with appellant. It seems to us that the National Labor Relations Board has, in the words of the above amendment, “declined to assert jurisdiction over any labor dispute involving” the class or category of employers to which appellant belongs, thus leaving such disputes within the jurisdiction of the state court.”

In reversing (the Alabama Court) the' Supreme Court of the United States stated:

“It is contended that although the annual gross receipts of WSIM are below the National Labor- Relations Board’s jurisdictional minimum of $100,000 per year for radio stations, WSIM is an integral part of a group of radio stations owned and operated by Charles W. Holt and the Holt Broadcasting Service and that the annual receipts of the common enterprise are in excess of $100,000, which is determinative under the Board’s standards. Stating that every court has judicial power to determine its jurisdiction and that the union failed to allege “that the appellant’s (WSIM) gross business exceeded $100,000 per annum,” the Alabama Supreme Court held that the state courts had jurisdiction over WSIM’s complaint. We granted certiorari. 379 U. S. 812. The judgment below must be reversed.’
‘Although a state court may assume jurisdiction over labor disputes over which the National Labor Relations Board has jurisdiction but declines to assert it, 29 U. S. C. A. §<§, 164 (c) (1) and (2) (1958 ed., Supp. V), there must be a proper determination of whether the case is actually one of those which the Board will decline to hear. Hattiesburg Building Trades Council v. Broome, 377 U. S. 126.’
‘The Board will assert jurisdiction over an employer operating a radio station if his gross receipts equal or exceed $100,000 per year, Raritan Valley Broadcasting Co., 122 N. L. R. B. 90, and in determining the relevant employer, the Board considers several nominally separate business entities to be a single employer where they comprise an integrated enterprise, N. L. R. B. Twenty-First Ann. Rep. 14-15 (1956). The controlling criteria, set out and elaborated in Board decisions, are interrelation of operations, common management, centralized control of. labor relations and common ownership. Sakrete of Northern California, Inc., 137 N. L. R. B. 1220, aff’d 332 F. 2d 902 (C. A. 9th Cir.), cert. denied, 379 U. S. 961; Family Laundry, Inc., 121 N. L. R. B. 1619; Canton, Carp’s Inc. 125 N. L. R. B. 483; V. I. P. Radio, Inc., 128 N. L. R. B. 113; Perfect T. V., Inc. 134 N. L. R. B. 575; Overton Markets, Inc., 255 142 N. L. R. B. 615. The record made below is more than adequate to show that all of these factors are present in regard to the Holt enterprise and that this is not a case which the Board has announced it would decline to hear. Since the conduct set out in the complaint is regulated by the Labor Management Relations Act, 1947, 29 U. S. C. A. § 141 et seq. (1958 ed.), “due regard for the federal enactment requires that state jurisdiction must yield.” San Diego Building Trades v. Garmon, 359 U. S. 236, 244; Construction & General Laborers’ Union v. Curry, 371 U. S. 542.
Reversed.”

There is some question as to whether it would he proper in cases such as this, to wholly decline jurisdiction until the N. L. R. B. has first acted.

We feel that the proper procedure is for the state trial court, upon the filing of a motion to dismiss the proceeding for want of jurisdiction, to conduct a full-scale hearing upon the jurisdictional issue. If, upon consideration of the proof presented at that hearing, the trial court finds that the case is not one of which the N. L. R..B. would take jurisdiction (as, for example, if the proof showed that the value of the inflow and outflow in interstate commerce is less than $50,000), then the trial court should retain jurisdiction and proceed with the determination of the case. On the other hand, if the trial court finds that the case is one that falls within the jurisdiction of the N. L. R. B., or if the court finds that the question of jurisdiction is so close that the case is arguably within the jurisdiction of the N. L. R. B., then the court should dismiss the proceeding, remitting the losing party to its remedy by appeal to thi.s court or by application to the N. L. R. B.

(Counsel for appellant in oral argument stated that a N. L. R. B. ruling could be had and relief obtained within approximately 10 days from the date of its filing with that tribunal.)

We are of the view that the preponderance of the testimony before the trial court below made the question of the interrelation of the two firms “arguably” within the jurisdiction of the N. L. R. B. and that a similar finding should be made on both (jurisdictional) issues.

It follows that the decree is reversed with directions to dissolve the injunction and dismiss the litigation without prejudice pending adjudication of the question of jurisdiction by the N. L. R. B.

Robinson, J., dissents.

Johnson, J., not participating.

Sam Eobinson, Associate Justice,

(dissenting). The majority turns this case on the question of whether it is arguable that Ark-La is buying supplied shipped in interstate commerce exceeding $50,000 in value, or whether Ark-La and Mid-South, for purposes of the National Labor Eelations Act, are one and the same thing. I do not think this is the controlling point. It is my view that even if it were conceded that both of the foregoing propositions should be answered in the affirmative, still, according to the undisputed facts in this case, the state courts have jurisdiction to prohibit appellants from doing the thing the undisputed evidence shows they were doing, and that is they were picketing only for the purpose of preventing the appellees from employing nonunion labor. We have held that picketing for such purposes is unlawful and subject to injunction. Burgess v. Daniel Plumbing & Gas Co., 225 Ark. 792, 285 S. W. 2d 517. We said in Self v. Taylor, 217 Ark. 953, 235 S. W. 2d 45:

“It is equally well settled that even peaceful picketing for an unlawful objective is not protected by the constitutional guarantee of the right of free speech. We recognized this in the Asimos case, supra, where we said at p. 702: ‘On the authority of these Federal cases the injunction in the case at bar could be sustained in some form, if the appellees had shown that the Union was picketing the Jefferson Coffee Shop in an effort to compel the execution of a “closed-shop” contract.’ See, also, Giboney v. Empire Storage & Ice Company, 336 U. S. 490, 69 S. Ct. 684, 93 L. Ed. 834; Union Local 262 v. Gazzam, 339 U. S. 532, 70 S. Ct. 784; Union Local 309 v. Hanke, 339 U. S. 470, 70 S. Ct. 773; Amalgamated Meat Cutters v. Green, 119 Colo. 92, 200 Pac. 2d 924; Construction and General Labor Union v. Stephenson, (Tex.) 225 S. W. 2d 958; Local Union No. 519 v. Robertson, (Fla.) 44 So. 2d 899.”

The majority relies on San Diego Buildings Trades Council, etc. v. Garmon, 79 S. Ct. 773, 359 U. S. 236, 1 L. Ed. 2d 860, but the facts in that case are entirely different from the facts in the case at bar, and the law-announced in Garmon is favorable to appellee here. The majority points out that here it is stipuated that Carpenters Local No. 1684, the defendant, did not represent any employee of Mid-South or Ark-La and that the evidence shows there was no protest made about low wages on the job by representatives of the defendant, and the only protest was the failure to use union labor exclusively; Ark-La was paying union scale to the people that worked on the job.

Actually, the Garmon case relied on by the majority supports the appellee. In that case the court said: “When it is clear or may fairly be assumed that the activities which a State purports to regulate are protected by § 7 of the National Labor Relations Act, or constitute an unfair labor practice under § 8, due regard for the federal enactment requires that state jurisdiction must yield.” It is clear from the Garmon case that the state must yield jurisdiction in the first instance only where it is clear that the activities which the state purports to regulate are protected by Section 7 or constitute an unfair labor practice under Section 8 of the National Labor Relations Act. The majority has not pointed out where anything said in Sections 7 or 8 is applicable to the facts in the case at bar.

The appellant was, at all times, acting within Amendment 34 to the Constitution of Arkansas, which provides: “No person shall be denied employment because of membership in or affiliation with or resignation from a labor union, or because of refusal to join or affiliate with a labor union; nor shall any corporation or individual or association of any kind enter into any contract, written or oral, to exclude from employment members of a labor union or persons who refuse to join a labor union, or because of resignation from a labor union; nor shall any person against his will be compelled to pay dues to any labor organization as a prerequisite to or condition of employment. ’ ’

This provision of our Constitution is valid under Section 14(b) of the Taft-Hartley Law, which provides:

“Nothing in this subchapter shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employment in any State or Territory in which such execution or application is prohibited by State or Territorial law.”

The majority, in effect, says that before the courts of this State can enforce a valid provision'of its Constitution — a provision which has been recognized as valid by laws adopted by the Congress of the United States, we must first have the permission of the National Labor Relations Board. I do not subscribe to that view.

Before the National Labor Relations Board makes a final determination of this matter, in all probability, months instead of 10 days will have elapsed. In the meantime a construction project will be closed down; many people will be thrown out of employment. This is a tragic result, especially when it is considered that there can be only one final result, and that is that the appellant has a right to enjoin the unlawful picketing..

For the reasons stated, I respectfully dissent.