text:
    Hooker v. Parkin.
    5-2726
    357 S. W. 2d 534
    Opinion delivered May 28, 1962.

      D. D. Panich, for appellant.
    J. Frank Holt, Atty. General, by Jack Holt, Jr,, Chief Asst. Atty. General, and Russell Morton, Asst. Atty. General; Dan Stephens, General Counsel, Ark. Hwy. Dept., by Don Gillaspie; Mehaffy, Smith & Williams, by W. J. Smith and James E. Westbrook, for appellee.
   Jim Johnson, Associate Justice.

The appellant, J. J. Hooker, a citizen, resident and taxpayer of Little Rock, Pulaski County, Arkansas, filed a class action in the Chancery Court of Pulaski County, challenging the constitutionality under our State Constitution of five acts: Act 200 of 1961; Act 465 of 1961; Act 395 of 1961; Act 118 of 1953, as amended, which is the Revenue Stabilization Law; and, Act 412 of 1955, as amended, which is the General Accounting Procedures Law. The appellees are Governor Orval E. Faubus and other state officials charged with the execution and administration of the questioned acts. The learned Chancellor found the challenged acts to be constitutional in all respects and the appellant has brought the case to this Court by appeal.

The three appropriation acts involved (200, 465 and 395 of 1961) provide for the expenditure of more than 250 million dollars during the two fiscal years, beginning on July 1, 1961, for the expenses of meeting the State's emergencies and carrying out the State’s good roads and educational programs. The other two acts involved have been in effect for a number of years and in practical application constitute instrumentalities by which the Legislature controls the allocation of state funds and the accounting by the state officials and employees for such funds. The magnitude of this action and its impact on the welfare of the people of Arkansas cannot be put into words.

In his Memorandum Opinion the learned Chancellor stated that our State Constitution of 1874 is a document we should revere and we agree with him. While we consider the grave issues raised in this appeal, we must be mindful of the fact that our state Constitution is a restrictive document; whereas our Federal Constitution is a document of delegated powers. The Federal Government has no right to act in a given field unless authority to do so has been delegated to it by the States. To the contrary, the Legislature (which is made up of the people’s elected representatives and spokesmen) has absolute power and authority to legislate in all fields unless prohibited or restricted from doing so by the State Constitutution or unless authority to so act has been delegated to the Federal Government and such authority has been exercised by the Federal Government.

Also, we are mindful of the rules urged by appellees to the effect that any doubt as to the constitutionality of an act must be resolved in favor of the validity of the act, State v. Sloan, 66 Ark. 575, 53 S. W. 47; State v. Moore, 76 Ark. 197, 88 S. W. 881; and, that contemporaneous construction given by the Legislature to the constitutional provisions involved are to be given great weight (though not conclusive), 6 E. C. L. 63 and Pressman v. D’Alesandro, 211 Md. 50, 125 A. 2d 35. However, we find no occasion for the applicability of these urged rules in the case at bar, since the constitutionality of the acts in question seems to be too clear to admit of any doubt.

The appellant contends that: “Act 200 of 1961 is unconstitutional in that (1) it directs unlawful delegations of power in violation of Article 4 of the Arkansas Constitution, and (2) the appropriation set out in Section 2 of said act is in violation of Sections 29 and 30 of Article 5 of the Arkansas Constitution in that said appropriation fails to itemize the amounts to be spent and appropriates funds for more than one subject.”

One must concede that this act delegates broad powers to the Highway Commission, but we find nothing in these powers that contravenes Article 4 of the State Constitution, which reads as follows:

“ Section 1. DEPARTMENT OF GOVERNMENT. The powers of the government of the State of Arkansas shall be divided into three distinct departments, each of them to be confided to a separate body of magistracy, to wit: Those which are legislative to one, those which are executive to another, and those which are judicial to another.
.“Section2. SEPARATION OF DEPARTMENTS. No person or collection of persons, being one of these departments, shall exercise any power belonging to either of the others, except in the instances hereinafter expressly directed or permitted.”

Act 200 appropriates funds for the operation of the Highway Department from July 1, 1961, to July 1, 1963. The act establishes the maximum salaries and wages for a maximum number of employees by grades and classes. The act does permit the Highway Commission to employ a lesser number of employees and to pay less than the maximum salaries and wages to employees in the various grades and classes. The need for employees and the salary or wage deserved by the individual employee are left for the Highway Commission’s determination. The delegation of this power, is necessary for the orderly and efficient operation of the Highway Department and is not repugnant to Article 4 of the State Constitution.' The Legislature has the right to delegate the power to determine facts upon which the'law makes or intends to make its action depend. McArthur v. Smallwood, 225 Ark. 328, 281 S. W. 2d 428. In this case the facts we repeat are: first, the need for the employee, and second, the ability and efficiency of the employee.

Act 200 also appropriates a lump sum of $83,100,000 for each fiscal year of the biennium for the following:

“Maintenance, Construction, Reconstruction, Repair, Replacement, Relocation, Betterment, and Operation of roads, bridges, ferries, and toll facilities in the State Highway System; including the acquisition of necessary rights of way; the purchase, repair, and operation of equipment; the purchase of land and construction of buildings and facilities required for the operation of the highway department, including facilities necessary for truck-weighing operations; the purchase of materials and supplies, the payment of departmental current expense, and the payment of travel expenses.”

How much money is to be expended for each of these items is left for determination by the Highway Commission. As we view the matter, the only alternative would be for the Legislature to decide and fix by law each road and bridge to be repaired or built, the kinds of equipment and materials to be used, et cetera. We cannot find any intention for such a restriction in Article 4 of the State Constitution. Neither do we find any intention that the Highway Department or any other Department or agency of the State should be required to employ a person not needed simply because such employment is authorized by an act.

Another provision of Act 200 authorizes the Highway Commission to carry forward from the first fiscal year of the biennium to the second fiscal year appropriation authorizations not used in the first year. However, the carry over is limited in purpose. An appropriation may be made for two years, and this is authorized by Article 5, Section 29 of the State Constitution which is the very provision the appellant contends this act violates. This provision is as follows:

“Section29. APPROPRIATIONS. No money shall be drawn from the treasury except in pursuance of specific appropriation made by law, the purpose of which shall be distinctly stated in the bill, and the maximum amount which may be drawn shall be specified in dollars and cents; and no appropriations shall be for a longer period than two years.”

Act 200 does not authorize the withdrawal of money from the treasury without an appropriation. To the contrary, it requires an appropriation and clearly states the purpose for the appropriation. The act specifies in dollars and cents the maximum amount which may be drawn from the treasury. The act makes no appropriation for a period longer than two years. Clearly the act meets each requirement of Article 5, Section 29, supra.

The appellant’s last objection to Act 200 is that it contains more than one subject contrary to Article 5, Section 30 of the State Constitution. We find that this issue was settled in one of our earliest cases, Fletcher v. Oliver, Sheriff, 25 Ark. 289 (1868) in which the Court said:

‘ ‘ The title of the Act is for ‘ opening and regulating roads and highways.’ Under this title may be included every act necessary to carry into effect or accomplish the design.”

Then the Court posed this question:

“Is there a power conferred, or a duty enjoined, by any of the sections of the law of 1868 which, if left out, would not have retarded and delayed the construction of roads and highways'?”

In our opinion, if any power conferred or duty enjoined upon the Highway Commission had been left out of Act 200, the construction of roads and highways in our State would have been retarded and delayed. We find Act 200 valid in every respect.

The appellant raises exactly the same objections to Act 465 of 1961 (appropriation act for the Department of Education for period from. July 1,1961 to July 1,1963) as he raises to Act 200, i.e. that the act offends Article 4 and Article 5, Sections 29 and 30 of the State Constitution.

Act 465 contains twenty sections and covers eleven pages in Yolume 2 of the Acts of Arkansas for 1961. A detailed discussion of each clause or sentence or item would serve no useful purpose. We have carefully examined the act and find no delegation of unlawful powers.

The State Board of Education is empowered to determine the need for employees and to fix the number of employees and salaries, within maximum authorizations. In this connection what we have said about Act 200 suffices here. The Governor is authorized to reduce the amount to be expended for Transportation Aid in each fiscal year. We find that his action must depend upon facts to be determined and that this requirement meets the test set forth in McArthur v. Smallwood, supra, and as further set forth in State v. Davis, 178 Ark. 153, 10 S. W. 2d 513, as follows:

“The Legislature cannot delegate its power to make a law, but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend. To deny this would be to stop the wheels of government. There are many things upon which wise and useful legislation must depend which cannot be known to the lawmaking power, and must therefore be a subject of inquiry and determination outside of the halls of legislation. ’ ’

It would be poor policy, to say the least, for the Legislature to fix the number of employees for this or any other department and to require the employment and payment of such employees when not needed. The appellant has read such an intention into Nixon v. Allen, 150 Ark. 244, 234 S. W. 45, but we do not agree with his interpretation of that decision where we quoted Article 16, Section 4 of the state Constitution which reads as follows:

“The General Assembly shall fix the salaries and fees of all officers in the State, and no greater salary or fee than that fixed by law shall be paid to any officer, employee or other person, or at any rate other than par value; and the number and salaries of the clerks and employees of the different departments of the State shall be fixed by law.”

Act 465 does not authorize the payment of a greater salary or fee to any employee than the amount fixed by law. We construe this provision to mean that the Legislature has the sole authority to establish the maximum remuneration to be received by any State employee and to establish the maximum number of such employees. We can find no requirement to the contrary.

Likewise we find it is within the power of the Legislature to fix a maximum amount to be used for any given purpose, with a proviso that the money will not be so used unless needed, such as was done in connection with the appropriation for Transportation Aid.

Act 465 specifies appropriations in dollars and cents, contains no appropriation that is not for a specific purpose, does not authorize the drawing of money from the treasury without an appropriation, and contains no appropriation for more than two years. This act meets every requirement of Article 5, Section 29, of the State Constitution.

The appellant’s contention that Act 465 covers more than one subject has given us some concern, because of Article 14 of the State Constitution which pertains to education in the public schools. However, we can find no limitation in the State Constitution that would prohibit the Legislature from treating all educational functions as one subject. The legislature has the right, if it so desires, to provide for education of our citizens from the cradle to the grave. The State Constitution requires a free public education for our boys and girls between the ages of six and twenty-one years, Article 14, Section 1; but we reiterate, there is nothing in the State Constitution to prohibit the Legislature from extending aid to higher education nor from developing educational opportunities for our people in the fields of vocational and technical training. The scope of activities which may be assigned to the State Board of Education and its various divisions by the Legislature has no bounds so long as those activities pertain to education (except as limited by Amendment 33). Black’s Law Dictionary defines “education” as follows:

“EDUCATION. Comprehends not merely the instruction received at school or college, but the whole course of training, moral, intellectual, and physical. Education may be particularly directed to either the mental, moral, or physical powers and faculties, but in its broadest and best sense it relates to them all. Barbers’ Commission of Mobile County v. Hardeman, 21 So. 2d 118, 120, 31 Ala. App. 626. Acquisition of all knowledge tending to train and develop the individual. Mitchell v. Reeves, 123 Conn. 549, 196 A. 785, 788, 15 A. L. R. 1114.”

Act 465 is limited to the subject of education and does not violate Article 5, Section 30, of the State Constitution.

The appellant contends that Act 395 of 1961, violates Article 4 and Article 5, Sections 29 and 30, of the State Constitution, supra.

The title and Section 1 of this Act are as follows:

“AN ACT to Appropriate Funds to Alleviate Conditions Arising in Public Emergencies, and for other Purposes.”
“SECTION 1. In the event of riot or threatened riot, sabotage, public insurrection or threatened insurrection, storm, flood, famine, or other public calamity, or other unforeseen situations which upon determination of necessity by the Governor calls for immediate action, the Governor is hereby authorized to issue a proclamation declaring an emergency to exist, which said proclamation shall include: (a) The nature and location of the emergency; (b) the name of the department or agency of State which, in the Governor’s opinion, is best able to alleviate or obviate the conditions which have ■ arisen or are about to arise because of such emergency; and (c) the amount of funds required therefor; such amount or so much thereof as shall have been set forth in each such proclamation, to be expended upon vouchers drawn by the disbursing agent of the department or agency of State named in the proclamation. The original of each such proclamation shall be filed with the Secretary of State and executed counterparts thereof shall be filed with the State Auditor, State Treasurer, and State Comptroller.”

Section 2 appropriates $100,000 each year for the two-year period beginning July 1, 1961.

Section 3 is a repealing clause.

The reason we have quoted in toto the title and Section 1 of this act is to show clearly that the act treats with one subject, i.e. “Public Emergencies.” "What constitutes a public emergency is to be determined by the Governor within the requirements of Section 1. It is to be noted that these requirements are specific and strict. Of course, any emergency proclamation is subject to attack under the position that no emergency exists.

This act does not authorize the withdrawal of money from the treasury without an appropriation, the purpose is distinctly stated, the maximum amount to be drawn 'from the treasury is specified in dollars and cents, and no appropriation is made for more than two years.

The same authorities cited in connection with our discussion of Acts 200 and 465 are applicable here, and reference to the many additional cases which could be cited to support our views on these three appropriation acts would only serve to unduly lengthen this opinion.

The appellant contends that Act 118 of 1953, as amended, the Revenue Stabilization Law, violates Article 4, Article 5, Sections 29 and 30, and Article 16, Sections 11 and 12 of the State Constitution.

This act came in to being as Act 311 of 1945. It was amended by each subsequent session of the Legislature and was completely redrafted as Act 118 of 1953. Each regular session of the Legislature since then has resulted in amendments to the act.

It would literally require volumes to discuss every facet of this important and vital act; but regardless of the length of this opinion, we are compelled to consider and, in the case at bar, feel impelled to state our views on each objection raised by the appellant. However, first we think that any discussion of the act should be prefaced with a brief review of the conditions that apparently brought about its enactment.

Upon the adoption of the Constitution of 1874, the Legislature launched a program based on deficit financing which eventually brought the State to the brink of bankruptcy. As early as 1875 the Legislature passed an act making appropriations for the expense of the executive, legislative and judicial branches of the State government, which included numerous items to supply deficiencies in appropriations theretofore made for various expenses of government. Act March 6, 1875, Section 3. A few other examples are: Act 123, Ark. Acts of 1887; Act 81, Ark. Acts of 1889, and Act 135, Ark. Acts of 1899.

This record of deficit financing continued in varying degrees until 1933 when Governor FutrelPs legislative program to save the financial integrity of the State became law. In that year the Legislature proposed Amendment No. 20 to the State Constitution which was adopted in the general election of 1934 by a majority of almost 4 to 1. This amendment is as follows:

“BONDS PROHIBITED EXCEPT WHEN APPROVED BY MAJORITY VOTE OF ELECTORS. Except for the purpose of refunding the existing outstanding indebtedness of the State and for assuming and refunding valid outstanding road improvement district bonds, the State of Arkansas shall issue no bonds or other evidence of indebtedness pledging the faith and credit of the State or any of its revenues for any purpose whatsoever, except by and with the consent of the majority of the qualified electors of the State voting on the question at a general election or at a special election called for that purpose.
“This Amendment to the Constitution of Arkansas shall be self-executing and require no enabling act, but shall take and have full force and effect immediately upon its adoption by the electors of the State.”

Clearly, the people of Arkansas spoke out through this amendment against deficit financing in State affairs, and in effect established public policy of the State Government, against such spending. In our opinion, this amendment was a mandate to the Legislature to prohibit issuance of state warrants unless money was on hand (from whatever source derived) to cover such warrants. Herein lies the financial stability of the State Government.

The ground work done during Governor Futrell’s tenure in office was the base upon which the Revenue Stabilization Law was established in 1945 as a part of Governor Laney’s fiscal program. Although many amendments and a redraft of this act subsequently followed, the basic concepts of the 1945 act remain to this day.

The Revenue Stabilization Law is a complex accounting tool designed to insure that the recipients of State funds receive monies only so long as cash is on hand. The appropriation for each agency sets a top limit on the amount that may be paid to that agency, and the Revenue Stabilization Law insures that no more is spent than is taken in and is allocated by the Legislature.

Does this act delegate powers contrary to Article 4 of the State Constitution, supra? We think that it does not. Duties to be performed by the administrative department of the State are spelled out in detail and depend upon facts over which no one has control, such as the amount of taxes collected which depends upon economic conditions. Duties delegated are purely ministerial since the Legislature has established specific procedures to be followed.

Turning now to the appellant’s contention that this act violates Article 5, Sections 29 and 30, of the State Constitution, supra, we need only to say that the act provides for the allocation of funds within the State Treasury and it does not provide for the withdrawal of any funds from the Treasury. The act is not an appropriation act within the meaning of these two provisions of the State Constitution. Dickinson v. Johnson, 117 Ark. 582, 176 S. W. 116; Dickinson v. Clibourn, 125 Ark. 101, 187 S. W. 909.

The appellant next contends that this act violates Article 16, Section 11, of the State Constitution. This provision is brief and reads as follows:

LEVY AND APPROPRIATION OF TAXES. No tax shall be levied except in pursuance of law, and every law imposing a tax shall state distinctly the object of the same; and no moneys arising from a tax levied for one purpose shall be used for any other purpose.”

The appellant is substantially correct in his contention that a tax levied for one purpose cannot be used for another. Page v. Alexander, 206 Ark. 479, 177 S. W. 2d 415. However, the appellant is in error in reasoning that a tax once levied for one purpose cannot thereafter be levied for a different purpose. In Page v. Alexander, supra, this Court held that when a tax is collected pursuant to being levied for a specific purpose, the money so collected cannot be diverted for a different purpose. At no time has this Court held that a tax act cannot be repealed or amended. Apparently this is what the appellant seeks. Such a meaning cannot be read into the above-quoted section of the State Constitution. We point to the wording of this provision and note that money does not arise from a tax until the tax has been collected.

In considering this point raised by the appellant, we have studied each provision of the Revenue Stabilization Law which levies a tax and have found in each instance that no tax money collected has been diverted to a different purpose than that for which it was levied. True, we have found amendment after amendment to the basic act levying a tax for a different purpose after a given date in the future and we hold that such a procedure is not prohibited by the State Constitution. This procedure is well demonstrated in the Legislature’s handling of the sales tax (Act 233 of 1935 as amended) prior to the enactment of the Revenue Stabilization Law.

Since this act is not an appropriation act as stated above, it follows, therefore, that the appellant is in error in his contention that the act violates Article 16, Section 12 of the State Constitution which reads as follows:

‘ ‘ DISBURSEMENT OF FUNDS-APPROPRIATION REQUIRED. No money shall be paid out of the treasury until the same shall have been appropriated by law, and then only in accordance with said appropriation. ’ ’

Although the appellant objects to the allocation of a percentage of taxes collected to. the Constitutional and Fiscal Agencies Fund, he fails to state the provision of the State Constitution upon which he relies for his position. This Court dealt with this subject in Young v. Clayton, 223 Ark. 1, 264 S. W. 2d 41, and we find nothing in the case at bar to require a contrary holding here.

Act 412 of 1955, as amended, the General Accounting Procedures Law, is the last act to come under attack by the appellant. He alleges that this act violates Article 4 and Article 5, Sections, 29 and 30 of the State Constitution, supra.

This act does not authorize the withdrawal of any money from the State Treasury and it is not an appropriation act. Therefore, there is nothing in Article 5, Sections 29 and 30, which pertains in any manner to the General Accounting Procedures Law.

Now let us consider whether this act violates Article 4 of the State Constitution, supra.

The General Accounting Procedures Law may he summarized as conferring: powers upon certain State Constitutional officers and employees and upon the Legislative Council to prepare a budget for the Legislature’s consideration when enacting specific appropriation acts; powers upon the administrative department of the State Government to require that certain records be kept and that state funds be accounted for according to an established accounting system; and powers upon the administrative department of the State Government to execute budget controls found necessary by the Legislature. These are in essence the powers which the appellant contends have been delegated in violation of Article 4, supra.

As we have stated, the Revenue Stabilization Law was first enacted in 1945. At that time certain accounting laws had been in existence for many years. These laws were amended from time to time and when appellee Faubus came into office in 1955, he proposed and the Legislature adopted the General Accounting Procedures Law which is comprehensive in detail. Through this act the Legislature has supplied the controls so necessary for the proper functioning of the Revenue Stabilization Law. These two acts go hand in hand and constitute as near as possible a guarantee against deficit spending by the State Government.

The Legislature has retained in this Law the right to enact the acts under which money can be withdrawn from the State Treasury. Since the Legislature is the department of the State Government that has this right and duty, it stands to reason that the Legislature also has the right to cloak such appropriations with such safeguards and restrictions as it may determine to be necessary for the preservation of the welfare of the people of this State.

In our opinion, the authorities cited above in this opinion relative to Article 4 of the State Constitution suffice and need not be repeated.

In reaching our conclusion on the whole case before us, we have borne in mind the following from Fletcher v. Oliver, supra:

“It is the bounden duty of courts not to defeat the will of the people, expressed through their representatives in the legislative halls, unless it is clearly manifest that some vested right or provision of the Constitution has been invaded. If the validity of every law is to depend upon the mere fact that the judiciary, if they had been legislating, would not have so arranged the law, we think that the Constitutional Convention reposed more confidence in the judicial department than sound discretion would warrant.”

It follows, therefore, that the decree in all respects is affirmed.

McFaddin, J., concurs.


source: Caselaw Access Project

author: Jim Johnson, Associate Justice.

license: Public Domain

text:
    Gibson v. Lowry.
    5-2733
    357 S. W. 2d 531
    Opinion delivered May 28, 1962.

      O. E. Gates, DuVal L. Purkins and D. A. Bradham, for appellant.

      J. F. Wallace, Jr., and Gerland P. Patten, for appellee.
   Jim Johnson, Associate Justice.

This appeal is prosecuted by the Heirs of Annie Cherry seeking to reverse an order of the Desha Circuit Court dismissing their suit in ejectment against a devisee in possession.

A jury was waived and the facts were stipulated.

The subject matter of this action is a farm in Desha County, acquired by Charles S. Thomas by a warranty deed dated February 17, 1947, upon which he resided with his wife, until she departed this life, leaving him alone. In the course of time his mother, Annie Cherry, and J. H. Cherry, her husband, and his step-father, moved into the home and the three lived as members of the family. During that time, on March 25, 1955, Charles S. Thomas made his Last Will and Testament, which is the basis of the title upon which both appellants and appellees rely for relief.

The paragraph of the Will pertinent to this controversy is as follows:

‘ ‘ Third: I devise, give and bequeath unto my mother, Mrs. Annie Cherry and to my step-father, J. H. Cherry, jointly, share and share alike, or to the survivor of them, the possession, rents, benefits and profits from my farm, being my home place situated about six miles South of McGehee, on Old U. S. Highway No. 65, in Desha County, Arkansas, during the natural lifetime of them, or the survivor of them, and at the death of both of said beneficiaries, I direct the said farm be vested, absolutely in fee simple in my brother, George E. Thomas.” (Emphasis ours.)

J. H. Cherry predeceased Charles S. Thomas and Charles and his mother continued to occupy the residence as a family until November 22, 1957, when Charles S. Thomas departed this life, leaving his mother, Annie Cherry, residing in the home . She continued to reside in the home until on June 22, 1959, when she departed this life. Following the death of Charles, but one month prior to the death of Annie Cherry, George S. Thomas, remainder-man in the Charles S. Thomas Will, departed this life on May 22, 1959.

George died testate, survived by his wife, Mabel C. Thomas, who was sole beneficiary under his Last Will and Testament, executed July 5, 1958, which specifically devised to his widow his “remainder interest in farm land”. Upon the death of Annie Cherry, Mabel C.. Thomas, surviving spouse of George E. Thomas, moved into possession of the land here in question, where she remained until her death testate April 1, 1960. Being without children, Mabel C. Thomas, by her Last Will and Testament, executed on the. 10th day of July, 1959, devised all of her land to her nephew, appellee, Autus T. Lowry, who is now in possession of the property.

From these and other stipulated facts the trial court, sitting as a jury, found that, upon the death of Charles S. Thomas on November 22, 1957, George E. Thomas acquired a vested interest in the land and had the right to dispose of his interest as he saw fit.

For reversal appellants forcefully contend “that Charles S, Thomas by his Will vested a life estate in his farm in his mother, Annie Cherry, subject to a remainder estate to George E. Thomas, his brother, contingent upon the condition precedent that he. survive Annie Cherry, his mother, which he did not do, and, so, at the death of. George E. Thomas, his contingent interest or estate ceased to exist and the fee title passed by operation of the laws of descent and distribution to Annie Cherry.”

A remainder is vested when it is limited to an ascertained person or persons, with no further condition upon the taking effect in possession, than the termination of the prior estate. See 33 Am. Jr. 525, Varn Anno. Supplement to Jones Ark. Titles, § 222, P. 146. An indefeasihly vested remainder is not precluded from creation “by the fact that the remainder is, in specific words, limited to the properly identified person “on”, “upon”, “at” or “after” the death of a person having a prior interest for life, or “when” such a person dies. Language of this type indicates the postponement of enjoyment implicit in all indefeasihly vested remainders and injects no additional element of uncertainty.” Restatement, Property — Future Interest § 157.

Here the interest given to George O. Thomas vested at the same instant and by the same grant as the life estate to Annie Cherry, and although his right to the enjoyment of the possession of this interest was postponed until the termination of the life estate, still this right, upon the termination of the prior particular estate, was presently fixed, and was in no wise dependent upon the happening of any event. McCarroll v. Falls, 129 Ark. 245, 195 S. W. 387. Therefore, since the remainderman interest, in this case, was ready to take effect immediately upon the death of the life tenant, and the designation of the remainderman being definite and certain, we cannot say that the trial court erred in finding that the Will of Charles S. Thomas created a vestéd remainder interest in his brother, George E. Thomas. Hargett v. Hargett, 226 Ark. 929, 295 S. W. 2d 307.

Affirmed.


author: Neill Bohlinger, Associate Justice.

text:
    Universal CIT Credit Corp. v. Troutt, Ex'x
    5-2698
    357 S. W. 2d 507
    Opinion delivered May 28, 1962.

      Wright, Lindsey, Jennings, Lester & Shults, for appellant.

      Hall, Purcell & Boswell, for appellee.
   Neill Bohlinger, Associate Justice.

The appellee, Lucille Cox Troutt, brought this action in the Saline Circuit Court as executrix of the estate of George L. Troutt to recover the sum of $10,000.00 which she alleged was due under a policy of life insurance which the appellant, Universal C. I. T. Credit Corporation was to have procured from the Old Republic Life Insurance Company on the life of her husband, George L. Troutt.

It appears from the record before us that George L. Troutt and I. E. McCray contemplated the installation of swimming pools which were to be purchased from the Arkansas Swimming Pool Corporation of which McCray and Troutt were the organizers. It was planned that the Arkansas Swimming Pool Corporation would take the notes of McCray and Troutt and transfer them tp the appellant, Universal C. I. T.

McCray and Trontt conferred with the appellant which, after a credit investigation, agreed to purchase their notes from the Swimming Pool Corporation and McCray and Troutt filled out certain forms presented to them by the appellant and the appellant’s manager testified that he advised both parties that since the transaction involved real estate their wives would be required to sign the notes with them. McCray’s wife signed the McCray note but it does not appear that Mrs. Troutt signed the note which the appellant contends was necessary to complete the application for the loan and both Troutt and McCray were advised at that time that $10,000.00 in life insurance would be purchased as credit life insurance to secure the loan and that they were insured from that point on. George L. Troutt died a few days subsequent to the meeting between McCray, Troutt, and the representative of the appellant. Mrs. McCray, not wishing to complete the purchase of the swimming pool, cancelled the order.

Mrs. Troutt, executrix of George L. Troutt’s estate, advised the Old Republic Life Insurance Company and the appellant of the death of Mr. Troutt and made claim for $10,000.00, the amount of insurance which she states the appellant was to purchase for the account of George L. Troutt. The appellant rejected the claim.

Thereafter Mrs. Troutt, as executrix, brought this action in the Saline Circuit Court and prayed judgment against the Old Republic Life Insurance Company and the appellant, both jointly and severally, for breach of contract and to recover on an insurance policy. Summons was issued and served on the Old Republic Life Insurance Company from the Saline Circuit Court which was the county wherein Mr. Troutt resided and died and summons was also served in Pulaski County on the appellant in that action, although it is stipulated that the appellant neither resides in nor maintains an office in Saline County.

Subsequently Mrs. Troutt filed an amended complaint, the prayer of which, as with the original complaint, prayed judgment against the Old Republic Life Insurance Company and the appellant, jointly and severally, for breach of contract and for penalties and attorney’s fees.

The appellant raised the question of jurisdiction of the Saline Circuit Court and the cause was thereupon transferred to the Pulaski Circuit Court in which county the appellant maintained an office. The Pulaski Circuit Court refused to accept jurisdiction and transferred the action to the Saline Circuit Court. Upon this return to the Saline Circuit Court a number of pleadings and motions of various kinds were filed but since the cause is-to be decided entirely on the question of venue we do not go into the matter of the side issues raised by those pleadings.

On the trial of the case, at the conclusion of the evidence. on behalf of the plaintiff, the defendant, the Old Republic Life Insurance Company, moved the court for a directed verdict on the grounds that no proof had been offered that the Universal C. I. T. Credit Corporation was the agent , of the Old-Republic Life Insurance Company or that the appellant agreed to place any insurance in any particular company. This motion the court granted and dismissed the cause as to the Old Republic Life Insurance Company.

Immediately after the granting of that motion the appellant moved the court to dismiss the cause as to it on the grounds that the action against its co-defendant, the Old Republic Life Insurance Company, had been dismissed and that consequently the venue was improper with respect to the Universal C. I. T. Credit Corporation because it was served with summons in Pulaski County and that it did not maintain any office or place of business in Saline County. This motion the court denied. This was error.

Up to the point where the court dismissed the Old Republic Life Insurance Company the Saline Circuit Court had jurisdiction. Mr. Troutt resided in Saline County and Ark. Stats. § 66-3234 provides for an action on an insurance policy in the county where the insured died or in the county of the insured’s residence at the time of death. It is inherent, except where there is a statute to the contrary, that each defendant is liable to suit only in the county wherein he resides or wherein it maintains an office and defendant cannot be dragged from the forum of his residence or place of business except in the case where a suit is against several defendants as set forth in the Arkansas Statutes, § 27-613, where it is provided that action “may be brought in any county in which the defendant, or one of several defendants, resides, or is summoned.” The Old Eepublic Life Insurance Company was properly summoned in Saline County but § 27-615 of the Statutes provides:

“Where any action embraced in section 96 [27-613], is against several defendants, the plaintiff shall not be entitled to judgment against any of them on the service of summons in another county than that in which the action is brought, where no one of the defendants is summoned in that county, or resided therein at the commencement of the action, or where, if any of them resided, or were summoned in that county, the action is discontinued or dismissed as to them, or judgment therein is rendered in their favor, unless the defendant summoned in another county, having appeared in the action, failed to object before the judgment to its proceeding against him.”

The statute is plain and beginning with the case of Stiewel v. Borman, 63 Ark. 30, 37 S. W. 404, this court has uniformly held that a judgment cannot be rendered against a defendant jointly sued with others who neither resided in the county in which suit was brought, nor was summoned therein, if he objected before judgment to the proceeding,, or unless judgment is rendered against a codefendant who was summoned in that county or who resided therein at the commencement of the action.

In the case of Wernimont v. State, 101 Ark. 210, 142 S. W. 194, Justice Frauenthal, speaking for the court, said:

“* * * It is the policy and spirit of our law, enacted into statute hy our Legislature, that every defendant shall he sued in the township or county of his residence. To this general principle there are statutory exceptions, chiefly in cases where there is a joint liability against two or more defendants residing in different counties. In such cases it is provided that suits may be brought in the county of the residence of any of the defendants, and service of summons can then be had upon the other defendants in any county, thereby giving jurisdiction over their persons to the court wherein the suit is thus instituted. Kirby’s Digest, §§ 6072 and 4588 Ark. Stats. 27-613 and 26-304].
But, before this jurisdiction can be acquired by virtue of these statutes over the person of such defendants nonresident of the county wherein the suit is instituted, it is essential that the defendant resident of the county where the suit is brought shall be a bona fide defendant. By our statute, it is further provided that, before judgment can' be had against such nonresident defendants, a judgment must be obtained against the resident defendant. Kirby’s Digest, § 6074 [Ark. Stat. 27-615].”

In the case of Seelbinder v. Witherspoon, 124 Ark. 331, 187 S. W. 325, we said:

u * * * According to this statute [Ark. Stat. 27-615], appellee is not entitled to judgment in this action against [non-resident of county of forum], although he may be entitled to recover against him, unless judgment is recovered against one of the defendants who resided in the county in which the action was brought at its commencement, or was summoned in such county, or he fails to object before judgment to its proceeding against him.” [Emphasis added]

Barr v. Cockrill, 224 Ark. 570, 275 S. W. 2d 6; Terry v. Plunkett-Jarrell Grocer Co., 220 Ark. 3, 246 S. W. 2d 415, 92 A. L. R. 2d 1264; Coca-Cola Bottling Co. v. Swilling, 186 Ark. 1149, 57 S. W. 2d 1029; and Metzger v. Mann, 183 Ark. 40, 34 S. W. 2d 1069, are also in point.

In Coley v. Green, 232 Ark. 289, 335 S. W. 2d 720, it was stated that when a defendant is summoned to appear in an action outside his own county and the action is dismissed against any co-defendant, resident of the county in which the action is pending, then, upon proper objection, no judgment can be rendered against the defendant nonresident of the county.

The venue in this case rested entirely upon the service on the insurance company. When the case as to the insurance company is dismissed, the appellant is left standing alone as if it singly had been sued. Upon the dismissal of the cause as to the defendant upon whom venue is predicated there remains but one thing to be done by the defendant who is a nonresident of the forum in which the cause is pending. That is, it must move for a dismissal of the cause against him. This was done and the cause should have been then and there dismissed as to this appellant.

Other points have been ably presented and splendid briefs filed by both parties hereto but since we find that the Saline Circuit Court was without jurisdiction to proceed against this appellant, we deem it unnecessary to pursue further the other points that are urged.

This case is reversed and dismissed here.


author: Carleton Harris, Chief Justice.

text:
    Archer v. Bucy.
    5-2700
    357 S. W. 2d 636
    Opinion delivered June 4, 1962.
    [Rehearing denied September 10, 1962.]

      Camp & Brinkley, by Gus Camp, for appellant.

      Kirsch, Cathey & Brown, for appellee.
   Carleton Harris, Chief Justice.

Appellee instituted an action to recover tbe alleged balance due under a conditional sales contract dated August 31,1959, covering one used tractor and one used cotton picker. Appellants, Henry Archer and Herschel Murdock, answered, and for their defense alleged breach of express warranty, sought damages and rescission, and pleaded failure of consideration. Subsequently, the answer was amended to allege an implied warranty rather than an express warranty. The case proceeded to trial, during the course of which, the court permitted appellants, over the objections of appellee, to amend the pleadings to include the affirmative defense of an express and oral warranty. At the conclusion of the evidence offered on behalf of appellants, the court directed a verdict in favor of appellee. Judgment was entered in the sum of $3,999.82, $3,074.00 representing the principal balance due under the contract, $562.11 representing interest, and $363.71 representing attorney’s fee as provided in the contract. From the judgment so entered, appellants bring this appeal.

The proof reflects that Archer and Murdock purchased a used Allis-Chalmers cotton picking machine, and a used tractor from appellee on August 31, 1959, for the agreed sum of $4,074, the note bearing interest at 8% per annum from date to maturity, and 10% per annu after maturity. Under the terms of the contract, $2,074 was due on October 15, 1959, and $2,000 on October 15, 1960. A total of $1,000 was subsequently paid on the purchase price, $500 being paid in October of 1959, $300 in March, 1960, and $200 in May, 1960. According to the evidence offered by appellants, the cotton picker never did properly function. Murdock stated that directions as to operation of the machine were followed, but that it “tore up” before a bale was picked. Buey, several times, sent an employee to work on the machine, but it did not remain in operating condition. Archer testified that they told Buey within three weeks after entering into the contract, to get the picker and take it back; however, Buey refused to do so, and appellants continued to use the machine. Testimony by appellants and their witnesses enumerated deficiencies of the picker, and its failure to operate. Under the view that we take, a detailed discussion of this testimony is deemed unnecessary, for the question of whether the machine properly functioned is not controlling in this litigation.

There is no written express warranty; in fact, the only written warranty refers to repairing or furnishing parts to replace parts which were defective at the time of the sale of the machine, and this warranty only applies to new machinery. The contract then provides that this is the sole warranty, “either express, implied, or statutory, upon which said machinery is sold”, and “no representative of the company has authority to change this warranty or this contract in any manner whatsoever, and no attempt to repair or promise to repair or improve the machinery covered by this contract by any representative of the company shall waive any consideration of the contract or change or extend this warranty in any manner whatsoever.” As to an implied warranty, Section 68-1415 can have no application, for the proof reflects that the contract involved herein is a conditional sales contract. Such a transaction is specifically exempted from the application of the Uniform Sales Act, Ark. Stats. 68-1479. Relative - to the contention of an oral warranty, this court said in Hembrick v. Peoples Mercantile & Implement Co., 228 Ark. 1021, 311 S. W. 2d 785:

“The defendants offered to show that the seller orally warranted the condition of the machine. The contract of sale, however, is in writing and recites that it constitutes the entire agreement between the parties. Parol evidence was therefore not admissible to prove the giving of an oral warranty.”

In Hignight v. Blevins Implement Company, 220 Ark. 399, 247 S. W. 2d 996, we said:

“The written contract of sale provides that it is made without any express or implied warranties. In view of this provision it was incumbent upon the defendant to show that his assent to the contract was induced by fraud. Not only is there no evidence of fraud; even if there were such testimony the defendant has waived his right to complain. His proof is that the motor did not pérform properly for even a single day, yet he kept the machine and continued to make payments on the purchase price for eight months after signing the contract. His only reason for this delay is that it was not until eight months after his purchase that he noticed water seeping from the engine and concluded that the block was broken. But Nathan Crawley, his employee whose duty it was to operate and repair the motor, testified that he noticed this seepage on the day the motor was delivered, or the next day. The defendant is charged with knowledge acquired by his employee in the course of his duties and in circumstances in which the knowledge should have been reported to the master.” In the instant case, fraud is not alleged in the pleadings, nor does the proof reach that degree. However, as pointed out in Hignight, even if there were evidence of fraud, appellants have waived any right to complain. Admittedly, appellants' retained the machine through the fall of 1960, and in both 1959 and 1960, picked cotton with it. It is true that they complained about its performance, but they continued, over this long period of time, to use it, and made payments upon the purchase price as late as May of the latter year. Under such circumstances, appellants were entitled to neither damages nor a rescission of the contract. In Kern-Limerick, Inc., v. Mikles, 217 Ark. 492, 230 S. W. 2d 939, we said:
“Many questions are presented in the excellent briefs; but we find it unnecessary to consider any of them except Kern-Limerick’s request for an instructed verdict, because an answer to that question is determinative of the case and requires a reversal and dismissal. * * *

The cross complaint of Mikles was on two counts: (a) failure to properly repair the WK tractor, and (b) fraudulent misrepresentations as to condition of the [¶] tractor. But Mikles waived any cause of action he might have had for damages on either of these counts: by his letter of February 18, he consented to the sale of the WK tractor and the crediting of the proceeds to his account; and by his letter of July 8, he agreed to pay for the [¶] tractor if given three days (which was granted). The ease at bar is ruled by our eases of Schichtl v. Bowser, 175 Ark. 1141, 1 S. W. 2d 816, and Pate v. McWilliams, 193 Ark. 620, 101 S. W. 2d 794.

In Schichtl v. Bowser, supra, the buyer claimed damages for breach of warranty of pumping equipment. The evidence showed that the buyer used the equipment for a year, discovered all of the claimed defects, and when pressed for payment, requested additional time and promised payment. In that case the trial court instructed a verdict for the seller for the balance due on the pumping equipment and we affirmed, saying:

‘The court instructed a verdict for appellee, and properly so, because appellant waived his right, to rely upon the defects in the outfit under his guaranty, by writing the letter to appellee’s attorney of date April 26, 1926, in which he made an absolute promise to pay the balance of the purchase money, irrespective of any defects he had complained of prior to that time.’

In Pate v. McWilliams, supra, the seller brought suit on a title retaining contract involving automobiles; and the buyers cross complained for damages, because of alleged fraudulent misrepresentations inducing the sale. The evidence showed that the buyers used the cars from May until December; and after having received full knowledge that the alleged representations were not true, the buyers continued to make payments on the automobiles. On such evidence the trial court instructed a verdict for the seller in his action for the balance of the contract price; and this Court affirmed, saying:

“. . . appellants waived the right to defend on the ground of a fraudulent procurement of the contract, by making no complaint and by using the trucks and making monthly payments thereon long after they claimed to have discovered that the Dodge truck consumed more gas and oil than the Chevrolet trucks had consumed.’ ”

We have so held in numerous other cases. Here, too, there was a promise, as late as 1960, to pay the balance. Also, Archer, on May 31, 1960, mortgaged his one-half interest in the cotton picker to the Corning bank. At the time of the trial, he was still indebted to the bank, and that institution still held the mortgage on the cotton picker.

Appellants’ final contention relates to plaintiff’s exhibit No. 2, executed about the same time as the note, and which reads as follows:

“WHEREAS, Buey Implement Company has sold to me a W. D. Allis Chalmers Tractor & 1 Row Allis Chalmers Cotton Picker No. CP 1-1025, for which a balance of the purchase price still remains unpaid. Therefore, I hereby agree that as I custom-pick and market my Cotton Crop for 1959-1960, there shall be paid on account of said debt out of each bale of cotton sold, the sum of $1.50 per hundred, and the purchaser of same is authorized to withhold the same and pay the total amount direct to the BUCY IMPLEMENT COMPANY.
/s/ HERSCHEL MURDOCK
/s/ HENRY ARCHER”

It is asserted that an issue was presented as to the manner of payment for the picker, which should have gone to the jury. In support of this position, appellants rely upon Stephens v. Smith, Law Reporter, April 10, 1961. The facts in that case were vastly different from those now before us. In Stephens, a cotton picker was purchased for the price of $8,517, and the purchasers executed their note in that amount. The note bore a notation in the left-hand corner, “to be paid out of picking.” All parties agreed that the appellees were to pay $25 out of each bale of cotton picked, and appellees contended that their liability was limited to the $25 per bale,- we upheld the Circuit Court in its finding to that effect. The picker was repossessed by appellant company before a sufficient amount of cotton had been picked to pay for the machine.

We find no merit in appellants’ contention for the language of the two instruments is entirely different. In the Stephens ease, the notation on the note flatly stated that payments “were to be paid out of picking”. Here, the memorandum signed by appellants contains no provision that the picker will be paid for entirely from the proceeds derived from cotton picked by the machine. Bather, this agreement seems to be in the nature of additional collateral to secure the purchase price, i.e., it would serve to prevent appellants from picking their cotton with the machine, and disposing of the proceeds from the sale of the cotton without making their payments to Buey. It is also, of course, noted that in Stephens, the notation appears on the note itself, while here, the picking contract is a separate instrument. The controlling fact, however, is the language used. No jury question was presented by the instrument, but appellants assert that they should have been permitted to offer oral testimony in support of their contention that the agreement, under plaintiff’s exhibit No. 2, was that the picker should be paid for solely in accordance with the amount of cotton picked with the machine. This contention is contrary to the view of this Court as expressed in Jones v. Cox, 227 Ark. 750, 301 S. W. 2d 12. In that case, Cox sold Jones a concrete mixer. Jones contended that, following execution of the conditional sales contract, on the same day, he had an agreement with Cox that the equipment would be paid for solely and absolutely out of the net profits derived by Jones from the use of such equipment. From the opinion:

“After the matter was discussed it was reduced to writing and signed by Sam M. Cox and Wesley N. Jones, and was sworn to before a notary public, on June 23, 1954. This note or writing reads as follows: ‘Any and all net monies acquired from the truck and mixer applies to the purchase price agreed upon, which is the amount of the unpaid balance of the contract with the Universal CIT Credit Corporation, Little Bock, Arkansas.’ It will of course be noted that this writing contains no provision that the equipment would be paid for entirely and absolutely out of the net profits and nothing else. It seems unlikely that Mr. Jones and Mr. Cox would have omitted from the writing anything as essential as that contended for by appellants if it had in fact been agreed upon. * * *
Moreover, since the parties put their agreement in writing, oral testimony would not he admissible to en-graft other agreements or understandings made or had at the same time. The rule that permits testimony to show a subsequent oral agreement (citing case) is not applicable here, because, if there were any such oral agreement as appellant contends for, it was contemporaneous with and not subsequent to the written agreement which Jones and Cox signed.”

No error appearing, the judgment is affirmed.

       This litigation is determined under law existing prior to January 1, 1962, when the Uniform Commercial Code became effective.


text:
    Hicks v. Early.
    5-2734
    357 S. W. 2d 647
    Opinion delivered June 4, 1962.

      Ward & Lady, for appellant.

      Frierson, Walker & Snellgrove, for appellee.
   Carleton Harris, Chief Justice.

This is a slander of title action. Appellant, A. A. Hicks, purchased roofing materials from appellees, Southwestern Petroleum Company, Inc., a Texas corporation, and Lee Early, according to an allegation of the complaint, an agent and officer of the corporation, to he delivered and used at 215 Clark Street, Nettleton, Arkansas. A dispute arose as to the amount Hicks owed appellees. On January 11, 1960, a materialman’s lien was filed by appellees, claiming a lien in the amount of $47.02 upon “buildings and property of Mr. A. A. Hicks in Jonesboro, Arkansas, located at 705 Steele.” According to the testimony of Mr. Hicks, in November or December of that year, he settled his indebtedness with appellees in the municipal court, and requested the clerk of that court to tell appellees to satisfy the lien.

On January 17, 1961, appellant instituted his complaint in the Craighead County Chancery Court, alleging that the heretofore referred to lien had been filed by appellees, “with the corrupt and wrongful purpose and intention of discrediting the record title thereto in violation of Section 41-1935, Ark. Stats. 1947. The defendants knew they had no claim of any nature whatsoever that could possibly be a lien against the real property described. There has existed a bona fide disagreement between the parties hereto over payment for certain ma-trials purchased by plaintiff from defendants for use on real property located, at the time of purchase, in the city of Nettleton, Arkansas. That disagreement was settled in full to the satisfaction of all parties on November 5, 1960, at which time the plaintiff demanded that the lien wrongfully placed against his real property at 705 Steele, Jonesboro, Arkansas, be satisfied of record no later than November 15, 1960.” Appellant then alleged that appellees had failed and refused to satisfy the lien, and that their wrongful acts had resulted in discrediting and clouding the title to his property at 705 Steele in Jonesboro; that he had suffered embarrassment, inconvenience, humiliation, and actual loss of money, and that the acts of the appellees had been wilful, wanton, and corrupt. Total damages were sought in the amount of $6,000. The court was asked to cancel the lien, order the record satisfied, and grant judgment against appellees for the amount previously mentioned. Summons was served on the Secretary of State of Arkansas as agent for service for Early and Southwestern Petroleum Company.

Appellees appeared specially for the purpose of moving the court to quash the attempted service upon them, asserting they were not doing business or performing work in this state such as would subject them to this type of service. On hearing, the court overruled this motion, and after a motion to make the complaint more definite and certain, appellees filed their answer (reserving their objections to the jurisdiction of the court), admitting that Southwestern was the sole owner and operator of the Zone Company, but denying all other allegations. The cause was set for trial for July 18, 1961, and on the morning of that date, the lien was satisfied. After hearing the evidence, consisting of the testimony of Hicks, the chancery clerk, and the deposition of J. E. Hicks of Hillsboro, Illinois, a brother of appellant, the court subsequently entered its memorandum opinion, which included the following findings:

‘ ‘ The preponderance of the evidence shows that the lien was placed on the wrong property by mistake and not with any specific intent to injure the plaintiff or to disparage the title to his property. It was a mere collection procedure that was very loosely handled.

The Arkansas law is clear in that to sustain an action for slander of title the plaintiff must prove the defendant acted maliciously and in holding that the plaintiff in the instant case has failed to meet this burden of proof it is unnecessary to rule on the question of damages and other issues raised by the plaintiff in his complaint. The defendant must prevail.”

In accordance with the findings therein, a decree was entered dismissing appellant’s complaint for want of equity. From such decree, appellant brings this appeal.

As stated by the trial court, it is necessary, before appellant can prevail, that he establish that appellees acted with malice. Sinclair Refining Company v. Jones, 188 Ark. 1075, 70 S. W. 2d 562. This holding is in accord with the general rule. As stated in 53 C. J. S., § 274, P. 394:

“Malice is a necessary ingredient in order to entitle plaintiff to recover for slander of title. Indeed it has been said that malice is the gist of the action. Such malice, however, may be express or implied. The action cannot be maintained if the claim was asserted by defendant in good faith, and if the act complained of was founded on probable cause or was prompted by a reasonable belief, although the statement may have been false.”

Further, in § 278 [4 (f)]:

“Malice may not be inferred from a mistake of law honestly made. The fact that defendant did not have probable cause for believing in the validity of a claim asserted against plaintiff’s property will not in itself establish his malice. The evidence of malice must support the reasonable inference that the representation not only was without legal justification or excuse, but was not innocently made.”

Appellant cites a statement contained in the Sinclair case, “Where the assertions are known to be false by the one making them, malice may be inferred by the trier of fact”, and contends that the proof reflects that appellees knew at the time they filed the lien, that they had no claim whatsoever on his property located at 705 Steele Street in Jonesboro. The claim for damages, according to his evidence, is predicated upon the loss of a sale of the Jonesboro property. He testified that his brother was willing to purchase the property for $13,000, but would not do so until the materialman’s lien was satisfied; that his brother gave him thirty days (which extended the time of the offer to February 1, 1961) to obtain the satisfaction of the lien, but he was unable to do so. Hicks testified that no one else offered $13,000, and that he considered the property worth $10,000.

The deposition of J. E. Hicks, the brother, a resident of Hillsboro, Illinois, was offered in evidence. Hicks stated that he offered to purchase the property around •the last of December for $13,000, and was ready, willing, and able to carry out the offer; that he did not purchase the property because he discovered a lien against it; that he was not presently willing (May 12, 1961), to renew the offer, even if the lien were released.

The fact that the lien was claimed on the wrong property does not establish malice. In Coffman v. Henderson, 63 So. 808 (Ala.), one of the leading cases on the subject of slander of title, the court said:

“But although false, yet if the claim was asserted by the defendant in good faith, an action will not lie against him for damages; otherwise every failure to maintain a title or lien claimed to or upon property, or every error of judgment or mistake made in the assertion of such claim, or suit brought to enforce it, however honestly and sincerely done, would subject a party to suit and mulct him in damages. Hill v. Ward, supra. In this class of matters, the extent of the penalty which the law inflicts upon an unsuccessful, honest disputant is to award costs to the opposing party, and that only when the controversy between them has proceeded to the point of and resulted in litigation. While malice, of course, cannot exist in legal contemplation unless the statement or claim was in fact false or untrue, yet, in order to constitute malice, it is seen that something more must be alleged and shown than the mere falsity of the statement or claim. Even though false, if the defendant had probable cause for believing his statement, there can in law be no malice; and, though the fact that there was a want of probable cause for believing the statement is evidence of malice, it is not conclusive of its existence, nor its legal equivalent.”

In the instant litigation, a purchase of materials had been made; appellant did own property in Jonesboro, and mail was sent to the Steele address; in fact, notice that the lien had been filed was sent to this address. Appellees, of course, were entitled to claim a lien on the Nettle ton property, where the materials were used, but the claim was made against the Jonesboro property. Under the circumstances, considering the lien was filed by an out of state concern, that Hicks lived in Jonesboro, and mail was directed to that location, it certainly would appear that the filing of the lien on the wrong property could have well been through inadvertence, rather than a calculated, deliberate, or malicious act. At any rate, appellant did not establish it to be otherwise. As stated by the Chancellor, the matter was “loosely handled” by appellees — but this does not prove malice.

Appellant vigorously argues that malice is shown by the fact that, though appellees had notice that the lien was filed on the wrong property, they still refused to release same until July 18, 1961. According to the testimony, Hicks settled the indebtedness by giving his check to the city clerk in November, 1960. Appellant stated that he requested the clerk to “Please clear my records on my property”. Of course, there was no duty, or authority, upon the part of the city clerk, to satisfy the lien that had been filed. Appellant’s next move was to institute his suit, which was filed on January 17th. At this time, he stated his cause of action, and we are unable to understand how subsequent events have any bearing on the question of malice. Be that as it may, the contention is answered completely in the case of Coffman v. Henderson, supra, in the following language of the court:

“The contention of appellant’s counsel in this matter is best stated in his own words, found in his brief, to-wit: ‘ The court will notice that this is not an action for damages for any filing of the notice of lien, regardless of whether the filing was wrongful or not. The complaint clearly states that the said T. M. Henderson (defendant) failed or refused to cancel said notice or declaration, or to remove the same from record, after being notified to do so, and, as a proximate consequence, the damage is averred. It is not the filing of the notice we complain of, but of the failure, wrongful failure, to cancel the notice of record after being notified to do so, when the complaint shows it was the duty of the defendant to have done so. * * * The complaint shows a duty owed by defendant to plaintiff, viz., the duty to remove the notice or cancel the same of record, because, as averred in the complaint, there was no indebtedness existing between the parties at the time the claim was filed, nothing on which to base the supposed lien, and because defendant had been notified to remove or cancel the same. * * * The breach of that duty is shown by the averment that the defendant failed to perform such duty after being notified to remove or cancel the notice. * * * The damages are averred to have been sustained as a proximate consequence of defendant’s failure to perform the duty. * * * Looking at the substance, and not the form, of the allegations in the complaint, the source of the damages claimed was the filing of the claim or declaration for record by which act the defendant claimed a lien on the property in disparagement of plaintiff’s title, rendering it unmarketable. If the positive act of the defendant in filing and having recorded such false claim (if that it was) of a mechanic’s lien on plaintiff’s property is not actionable (and it is not, as the authorities without dissent declare, unless it was maliciously done), then certainly his negative act in failing to cancel of record such claim or declaration would not be actionable.”

While it is not controlling in this litigation, it is observed that appellant does not appear to have acted with diligence. He was notified in January, 1960, that the lien had been filed, but apparently took no steps to obtain the satisfaction of same. The record does not reflect that he advised the company that they had erroneously filed the lien, or made any demand to appellees that same he released, or that he had any correspondence with them at all. In fact, his first notice to the company was the filing of the complaint. Since the lien was not satisfied until the suit was commenced, we do feel, as set forth in the Coffman case, that appellant is entitled to his court costs expended to the time of satisfaction. The cause is therefore remanded with directions to award appellant his court costs. In all other respects the decree is affirmed.

       The complaint álleges that the purchase was made from the Zone Company, a subsidiary of Southwestern Petroleum Company, Inc. This allegation was admitted to be true by appellees.

       The record does not reflect it, but apparently appellees obtained a judgment against appellant in that court.

       By amendment to the complaint, this amount was increased to $8,275.00.

         This, of course, does not include attorney’s fee.


author: Ed. F. McFaddin, Associate Justice. Jim Johnson, Associate Justice,

text:
    Wood v. Brown.
    5-2634
    361 S. W. 2d 67
    Opinion delivered June 4, 1962.
    [See supplemental opinion on Rehearing, p. 500, delivered Oct. 8, 1962]

      March Fiets, Penix é Penix, Rhine & Rhine and Marshall N. Carlisle, for appellant.

      Cecil Grooms, for appellee.
   Ed. F. McFaddin, Associate Justice.

This is an election contest involving the Democratic nomination for the office of Mayor of the City of Paragould. In the second primary on August 8, 1961, appellant Wood and appellee Brown were the rival candidates. On the face of the returns the vote was: Brown, 1087; and Wood, 1077. The Democratic Central Committee refused Wood petition for a recount and purging of the returns; and in due time Wood instituted this election contest claiming, inter alia: (a) twenty-one named persons who voted for Brown were not qualified voters; and (b) other irregularities, one of which — subsequently to be discussed in detail — was the misconduct of an election judge of Box 2 in Ward 2. The prayer of the complaint was that the Court open the ballot boxes, recount the ballots in Box 2 of Ward 2, declare certain specified ballots to be illegal, and declare Wood to be the Democratic nominee. By answer and cross complaint, Brown denied the allegations of the complaint, challenged as irregular certain named ballots cast for Wood, and prayed that the con- ■ test be dismissed. Trial in the Circuit Court resulted in judgment for Brown; and the Court found the true result of the election to be: Brown, 1078; and Wood, 1060. On this appeal Wood urges eight points; but the first one is decisive of the appeal.

I. The Court’s Ruling As To Box 2 Of Ward 2. As regards the said box, Wood had alleged in Paragraph 5 of his complaint:

“V. Contestant further alleges that one of the judges, Jones Horne, helping with the election in Ward 2, in charge of Box 2, made a substantial wager or bet on the outcome of the election and he made a statement that he had changed and thrown out several votes cast for this Contestant, thereby assuring the election of the Contestee, the candidate he was betting on would win the election. That such action by this judge was illegal, fraudulent, and a violation of the law, the rules of the Democratic Party of Arkansas, and the right of the legal voters of the City of Paragould, Arkansas, and if true would change the result of the election because of this fraudulent irregularity. That this fraud cannot be corrected unless a complete recount of Box 2 Ward 2 be ordered by this Court and the ballots examined to determine which ballots were changed or not counted. ’ ’

After hearing all the evidence the plaintiff Wood desired to offer to support the allegations of the above quoted Paragraph 5, the Court sustained the defendant’s demurrer to the evidence which the plaintiff had offered to sustain this Paragraph 5; and the Court then proceeded to hear the evidence offered by both sides on all the other issues in the case. The ruling of the Court on the said Paragraph 5 is challenged by appellant. The Trial Court held that the plaintiff’s evidence as regards Paragraph 5 was insufficient to sustain the allegations in the said Paragraph 5. In testing the Court’s ruling we must give the plaintiff’s evidence its strongest probative force, just as the Trial Court was required to do in passing on the motion. Guenther v. Guenther, 222 Ark. 278, 258 S. W. 2d 562; Barrentine v. Henry Wrape Co., 120 Ark. 206, 179 S. W. 328.

The gravamen of the charge in said Paragraph 5 is that Jones Horne, one of the judges in said Ward 2, Box 2, placed a bet that Brown would win the election; and that Jones Horne, as such judge, had stated that he had changed enough votes in favor of Brown to thereby defeat Wood. There are thus two matters charged: (a) that Jones Horne, an election judge, placed a bet that Brown would win the election; and (b) that Jones Horne stated that he had in fact changed enough votes from Wood to Brown to thereby defeat Wood. We consider these two matters.

(a) An Election Official Betting On The Result Of An Election. Section 3-1516 Ark. Stats, reads:

“Betting on elections — Penalty.—Every person who shall make any bet or wager upon the result of any general, special or primary election in this State, shall be deemed guilty of a misdemeanor, and upon conviction shall be fined in any sum not less than fifty dollars ($50.00).”

Section 3-704 Ark. Stats, reads:

“Betting on election as disqualifying judge or clerk. —No person hereafter shall be competent to act as judge or clerk of any election authorized to be holden by the laws and Constitution of this State who shall have any moneys, goods, wares or merchandise bet on the result of any such election as aforesaid.”

That Jones Horne was an election judge of Box 2, Ward 2, was admitted. There is also evidence to show that he placed a wager on the result of the election. Such conduct constituted a violation of law and disqualified Jones Horne from acting as an election judge. But, because an election judge is a law violater does not, ipso facto and alone, destroy the integrity of the entire ballot box. Something more needs to be shown. We have a number of cases which hold that a voter is not to be disfranchised because of the failure of the election officials to obey all election laws. Henderson v. Gladish, 198 Ark. 217, 128 S. W. 2d 257; Ellis v. Hall, 219 Ark. 869, 245 S. W. 2d 223; Orr v. Carpenter, 222 Ark. 716, 262 S. W. 2d 280; Baker v. Hedrick, 225 Ark. 778, 285 S. W. 2d 910. We pass then to the other charge.

(b) Changing Votes From Wood To Brown. This allegation, if sustained by the evidence, would make a prima facie case to destroy the integrity of the returns from said Ward 2, Box 2, and would require a recount. But the evidence that Wood offered on this allegation is entirely insufficient to make a case for the trier of the facts to decide. A careful study of the record fails to disclose any substantial evidence to sustain this most serious charge: (1) O. D. Hyde testified that Jones Horne talked about votes in the Harris-Dexter alder-manic race (the contest in that election was tried at the same time as the present contest); but did not make any statement relative to the mayorality race. (2) Jimmy Haggett’s testimony was the same as that of Mrs. Hilton Carey. (3) Mrs. Hilton Carey heard Jones Horne say that there was one vote in the mayorality election that was discarded for the uncertainty of the judges as to how the vote was cast. (4) Hilton Carey’s testimony was the same as that of his wife. (5) A. D. Dickson’s testimony was not as definite on the point at issue as was that of Mrs. Hilton Carey. The foregoing witnesses are all that gave pertinent testimony on the point at issue. No election official at said Box 2, Ward 2 was called to testify; no voter at said Box 2 was called to testify. In short, there was no testimony to sustain the allegations of the complaint as to the specific point here under consideration.

In Baker v. Hedrick, 225 Ark. 778, 285 S. W. 2d 910, we quoted Judge Eakin’s language in the case of Patton v. Coates, 41 Ark, 111, as to the quantum of evidence required to destroy the integrity of an entire box:

“ ‘The wrong should appear to have been clear and flagrant; and in its nature, diffusive in its influences; calculated to effect more than can be traced; and sufficiently potent to render the result really uncertain. If it be such, it defeats a free election, . . . If it be not so general and serious, the court cannot safely proceed beyond the exclusion of particular illegal votes, or the supply of particular legal votes rejected.’ ”

It is readily apparent that the plaintiff’s testimony in the case at bar completely failed to measure up to the test stated by Judge Eakin. Giving the plaintiff’s testimony its strongest force, it was shown that one judge— Jones Horne — had placed a bet on the election, and that he had said that one vote in the-mayor’s race was dis-, carded because the judges were unable to tell for whom it was cast. Such evidence is wholly insufficient to destroy the integrity of an entire box. We strongly condemn any election official who places a bet on the election; but the statute only subjects such offending official to prosecution and does not say that the entire box is to be recounted because of the conduct of such offending official. So far as the record here shows, the other judges, clerks, and the Sheriff of Box 2 complied with the law in every respect. So the Trial Court was correct in ruling as it did in regard to Paragraph 5 of the complaint.

II. The Court’s Rulings On The Other Issues. It is unnecessary for us to consider the Court’s rulings on the other issues in this case either on the direct appeal or the cross appeal. The trial in the Circuit Court resulted in a finding that Brown received 1078 votes and Wood 1060; thus there was a difference of eighteen votes in favor of Brown. On this appeal Wood has challenged the Court’s ruling on seven specific ballots; and by cross appeal Brown has challenged the Court’s ruling on four specific ballots. There is no need for us to prolong this opinion to recite the evidence and rulings as to each of these, because the result would not be changed even if the appellant should be correct in his claim on all seven of the votes; and certainly we need not consider the appellee’s cross appeal if he wins the case on.direct appeal. In Phillips v. Melton, 222 Ark. 162, 257 S. W. 2d 931, we held that it was unnecessary to consider votes, the decision of which would not change the result in the ease. In Black v. Jones, 208 Ark. 1011, 188 S. W. 2d 626, we quoted from the early case of Swepston v. Barton, 39 Ark. 549:

‘ ‘ ‘ The remaining grounds of contest, if they are true in fact, are insufficient to change the result. It is no valid objection to an election that illegal votes were received, or legal votes rejected, if they were not numerous enough to overcome the majority. (Citing cases.)’ To the same effect, see Webb v. Bowden, 124 Ark. 244, 187 S. W. 461, where we said: ‘But if the returns had been purged of all the illegal votes shown to have been cast in those precincts, it could not have affected the general result. “It is no valid objection to the election that illegal votes were received or that legal votes were rejected if they were not numerous enough to overcome the majority.” ’ ”

CONCLUSION

The Court’s ruling was correct as regards the insufficiency of appellant’s evidence to sustain Paragraph 5 of the complaint; and we affirm the judgment of the Circuit Court.

George Bose Smith, Bobinson & Johnson, JJ., dissent.

Jim Johnson, Associate Justice,

(Dissenting). This is an election contest involving the Democratic Primary held August 8,1961 in Paragould. Upon the count certified by the Greene County Central Committee appellee received 1087 votes and appellant 1077 votes in the race for Mayor. A petition by appellant to the Central Committee requesting a recount was denied and this action was thereafter filed. The complaint alleged 21 illegal votes were cast for appellee and in Paragraph V (upon which the result here hinges) it was alleged that Jones Horn, an election judge in Ward 2, Box 2, had made a bet on the outcome of the election and stated he had changed and thrown out certain votes in this box. Appellant prayed specifically for a recount of Ward 2, Box 2.

At the conclusion of appellant’s testimony on the allegations contained in Paragraph V of the complaint, the trial court sustained appellee’s demurrer to the evidence which in effect was a motion for an instructed verdict. The court then proceeded to determine the validity of certain votes challenged by both parties and upon conclusion of the trial rendered its findings showing the count to be 1078 for appellee and 1060 for appellant. The determination by the court of the validity of these votes is of no consequence unless appellant is entitled to a recount of Ward 2, Box 2, since our ruling thereon would admittedly not change the result of the election.

It is reasonable, to say the least, that a candidate in an election wherein the difference is only 10 votes is entitled, in the public interest, to be given every consideration in a request for a recount. Judges and clerks being human, it is not without the realm of possibility that 5 honest errors in the tally could be made from over 2,000 votes cast, and this in itself would change the result. I am compelled, therefore, to examine even more closely the matters involved here, for certainly the voters of the City of Paragould are entitled to a true and accurate count of the votes cast.

It is impossible for me to see how the majority can conclude that no question of the accuracy of the count in this box is raised by the activities of Jones Horne. It is practically admitted that Horne made a substantial bet on the Mayor’s race. It is further obvious from the record that on the night of the election Horne made certain statements which would throw into grave doubt the accuracy of the count of the box on which he served as judge. Certainly, under our statutes, as the majority points out, Horne was disqualified to serve as judge. This alone should require that the box be looked into. It must be pointed out that the appellant here did not ask that the box be invalidated but only asked that it be recounted to determine if the judges and clerks reported the true and accurate results.

The majority correctly states that the evidence of appellant must be. given its strongest probative force. But then it goes on and used as its authority for affirmance the language from Patton v. Coates, 41 Ark. 111, which, when read in the light of appellant’s evidence, leaves no doubt as to what the proper result should be. If the actions set forth in the record before us are not “clear and flagrant” and “sufficiently potent to render the result really uncertain” then no candidate will ever be entitled to a recount. The evidence on its face clearly “defeats a free election”.

The opinion of the majority which in effect puts its stamp of approval on Horne’s questionable acts, in my view, makes a fundamental error in its approach to this question. Without one bit of discussion on the point, it presupposes that in order to obtain a recount of the box in question appellant must show here and now that the result of the election would be changed. This, as I see the matter, is a basically erroneous hypothesis, for if appellant were able to show by proper proof that the result of the election would be changed, a recount would be superfluous and unnecessary and appellant would be entitled to a reversal and declared the winner of the election forthwith. This, of course, is the reason that the majority of courts have adopted the rule as stated in 29 C. J. S. “Elections”, Section 290:

“It is held by some authorities that a mere charge or allegation of error, mistake, fraud, misconduct, or corruption in counting the ballots or declaring the results of an election warrants a recount of the ballots on the request of the complaining parties, and under some statutes a recount may be had merely on application therefor and without stating any particular grounds. However, it is more generally held that a resort to the ballots cannot be had unless the contestant shows at least a probability that a recount would decide the election in his favor, that there were frauds, irregularities, or mistakes committed in the acceptance of the ballots and return of their count, * * * Ordinarily when the state of the evidence is such as to throw uncertainty on the accuracy of the cou/nt by the inspectors and judges a judicial count is properly ordered.” (Emphasis mine) Our own legislature has in effect adopted this rule in contests of elections. Ark. Stats. § 3-1012 requires that the petition to the County Election Commissioners asking for a recount merely show “reasonable grounds for believing that the return, as made by the judges of election, does not give a correct statement of the vote as actually cast.” Although, this statute applies to elections as opposed to primaries, since there is no pronouncement on the point as to primaries we can certainly look to this enactment to determine the legislature’s feeling on the matter.

The voters of Paragould and every other ward and precinct in our nation are entitled, nay, guaranteed that our elections he conducted in such a manner that their votes will he accurately reported. If the evidence presented here does not warrant the recount of the box in question, I do not know what would he necessary to place the accuracy of the count in douht.

For the reasons stated I respectfully dissent.

       Some of our more recent election eases are: Gunter v. Fletcher, 217 Ark. 800, 233 S. W. 2d 242; Logan v. Moody, 219 Ark. 697, 244 S. W. 2d 499; Phillips v. Melton, 222 Ark. 162, 257 S. W. 2d 931; Baker v. Hedrick, 225 Ark. 778, 285 S. W. 2d 910; Bradley v. Jones, 227 Ark. 574, 300 S. W. 2d 1; McClendon v. McKeown, 230 Ark. 521, 323 S. W. 2d 542.

       The name of the pleading is unimportant. While the defendant’s (appellee’s) pleading is called a “demurrer to the evidence” (see § 27-1729 Ark. Stats.) it was in fact in a case tried at law “a motion for an instructed verdict,” as it would have been styled in a jury trial. In the absence of a jury, as here, it was a “motion for a declaration of law or a finding of fact.” See § 27-1744 et seq. Ark. Stats.