text:
    Rostell v. Ark. & Ozarks Ry. Corp.
    5-1854
    323 S. W. 2d 539
    Opinion delivered May 4, 1959.

      M. A. Hathcoat, for appellant.

      Virgil D. Willis for appellees Ark. & Ozark Ry. Corp. et al; J. Loyd Shouse and Walker & Villmes for Appellees Turney Wood Products, Inc., and Joe Miller.
   J. Seaborn Holt, Associate Justice.

This litigation involves the construction of the provisions in two deeds, referred to as Exhibit “A” and Exhibit “B”. The facts are not in dispute. Appellants, Josephine Rostell, John E., Kenneth F., and James C. Murray, and Martha Miller and Lucille Finch, are the sole heirs at law of C. C. Mury and Ms wife Tosie Murray. On December 13, 1900, . C. Murray anc Ms wife executed to the St. Louis and 'orth Arkansas Railroad Company the warranty deed, - Exhibit “A” above, which deed contained the fol->wing provisions (material here): “Know All Men By ?hese Presents, That we, Josie Murray and Cecil Muray, her husband, for and in consideration of the sum of Eleven Hundred Dollars to us in hand paid by the 3t. Louis and North Arkansas Railroad Company, the receipt whereof is hereby acknowledged, and covenants of said railroad company hereinafter made to us, do grant, bargain, sell and convey and have hereby granted, bargained, sold, and by these presents do hereby grant, alien, relinquish, sell and convey unto the said St. Louis and North Arkansas Railroad Company, its successors and assigns the following described property, to-wit:” (then follows a metes and bounds description of 117 9/16 acres of land) “To have and to hold afore granted premises given with all the rights, privileges and appurtenances thereunto belonging or in anywise appertaining. We hereby covenant to and with said railroad company that we are seized of said lands in a fee simple title that we will and our heirs, executors, administrators and assigns shall forever warrant and defend the title to the same against the lawful claims of all persons whomsoever. This land is granted to said railroad company for railroad purposes and is to be used by said railroad company for the purpose of keeping and maintaining a railroad station on the same and to be used by it for purposes connected with said railroad and the operation thereof, (added in ink) And for no other purposes.”

Thereafter, on September 27, 1905, C. C. Murray and wife executed to the St. Louis and North Arkansas Railroad Company the other deed above, Deed “B”, which contained the following provisions: “Know All Men By These Presents, That we, Josephine Murray and C. C. Murray, her husband, of Harrison, Boone County, Arkansas, in consideration of the sum of Fifteen Hundred ($1,500) Dollars, to us in hand paid by the St. Louis and North Arkansas Railroad Company, the receipt of which is hereby acknowledged, as well as the payment by said railroad company of the costs in a suit pending in Boone Circuit Court, in which Josephine Murray is Plaintiff and the said railroad company, Defendant, have granted, bargained and sold and by these presents do grant, bargain, sell and convey to the said St. Louis and North Arkansas Railroad Company, its successors and assigns in addition to the land heretofore conveyed to it by us for right of way and station ground east of and near Harrison, Arkansas, the following described tract or parts of land, to-wit:” (then follows a metes and bounds description) ‘ ‘ To have and to hold the same to the said St. Louis and North Arkansas Railroad Company, its successors and assigns so long as it may use the same for railroad purposes but no longer, and in consideration of said sum of money in addition to the conveyance above set forth we do hereby release and relinquish to said St. Louis and North Arkansas Railroad Company all claims or damages growing out of the conveyance by us to said St. Louis and North Arkansas Railroad Company of the station ground heretofore conveyed by us to it. -•”

Appellees, on December 11, 1957, filed the present suit against the above appellants, the sole heirs at law of C. C. and Josie Murray, alleging ownership in all the lands described in the above deeds, Exhibit “A” and “B”, and prayed that appellants “be declared to have no interest in and to said lands, either past or reversionary” and that title in fee to the lands be quieted and confirmed in appellees. In their answer, the appellants admitted execution of the two deeds above, but alleged “that since said lands were abandoned for use as railroad property, by the terms, conditions and reservations in said deeds, all rights of St. Louis and North Arkansas Railway Company and its successors in title, to said lands, ceased to exist; and that the title to said lands conveyed by said deeds to St. Louis and North Arkansas Railroad Company has reverted to the heirs of Josie Murray and C. C. Murray. ’ ’ A trial on October 30, 1958 resulted in a decree holding that deed “A” above, executed by C. C. Murray and wife on December 13, 1900, conveyed a full and complete fee simple title to the St. Louis and North Arkansas Bailroad Company, its successors in title and assigns, free from any rights of appellants. It further held that Josephine Bostell and other appellants named above, were the owners as tenants in common of the land described in deed “B”. Gross, et al, as third party defendants and cross-appellants, have appealed from the decree relating to deed “B”, which we later discuss. The present appeal of appellants is from that part of the decree awarding to appellees, Arkansas and Ozarks Bailway Corporation, the ownership in fee of the lands described in deed “A”. The appellants stoutly contend that the provisions in deed “A” were intended to and did create a determinable fee and that the title has reverted to them. We do not agree. We think the chancellor’s interpretation of deed “A” was correct. In the recent case of Davis v. St. Joe School District, 225 Ark. 700, 284 S. W. 2d 635, wherein we had for consideration the provisions of a deed, similar in effect, to those presented here, in holding that title in fee was conveyed and not a determinable fee, we said: “The question is whether this deed conveyed (a) a fee simple defeasible, which might be either a determinable fee or a fee simple on condition subsequent, or (b) the fee simple absolute, with a covenant binding the grantee to the specified use of the property. ... At the outset it must be noticed that the deed before us does not contain language unmistakably describing either form of defeasible fee. The language customarily used is familiar enough. A determinable fee is ordinarily created by a provision that the grantee’s estate is to continue ‘ as long as’ the property is used for a certain purpose or 'until’ a given event occurs, or by similar words limiting the duration of the estate. A fee on condition subsequent is most effectively described by an express declaration of the condition and by the further reservation of a right of re-entry upon condition broken. ... In the case at bar the grantors ’ failure to employ language unequivocally creating a defeasible fee is a circumstance indicating that the parties did not have such an estate in mind. . . . The courts, in construing language that lies in the borderland between a clearly defined defeasible fee and a plainly stated covenant, have given weight to several external circumstances that may indicate the parties’ intent. See Rest., Property, Sec. 44, Comment m, and Sec. 45, Comment p. In the present case one of these factors — the ratio between the worth of the consideration and the value of the property — is especially persuasive. It is a sensible rule that as the worth of the consideration approaches the full market value of the property there is a correspondingly stronger inference that a defeasible fee was not intended. If a man conveys land to a school district purely as a gift and declares that it shall be used for school purposes only, it is reasonable to believe that he means to condition his generosity upon obedience to his wishes; for his benevolence is the only motive for the conveyance. But if the land is sold to the district for its full value it is not reasonable to believe that a similar restriction is intended to carry the severe penalty of a complete loss of title. In the second instance the consideration is probably the principal inducement for the transfer. Hence in the latter case the restrictive language is more fairly regarded as a covenant, upon which the remedy in damages is deemed adequate. . .

Here the deed recites a consideration of $1,100. It is not contended that this was not full value for the land in question which was conveyed in warranty deed form, with the usual granting clause, habendum and covenant of warranty, together with a definite metes and bounds description, all of which were factors strongly indicating, we think, that a fee title was intended to be conveyed. Had the grantors intended to create a determinable fee, it would have been very easy to have said so, or spelled it out, in a reverter clause in language so plain that all could understand. We hold, as indicated, that a fee simple title was conveyed.

On the cross-appeal of Gross and Schwartz, third party defendants, little need be said. The record reflects that following the trial on October 30th, and after the court’s decision was filed, Gross and Schwartz, on November 13, 1958, filed a motion for a re-hearing, alleging in substance that at the time the case was submitted oil the issues, they were unfamiliar with the record of title and were unable to find such record until subsequent to the submission of the case.

On hearing and considering this motion, the trial court over-ruled it and entered the following order. ‘ ‘ ORDER. On this 20th day of November, 1958, is submitted to the Court Motion of Third Party Defendants, Meyer P. Gross and Maurice I. Schwartz, for re-hearing together with the response thereto by John E. Murray and other Defendants in the Original Complaint of Plaintiff. Upon consideration thereof, the Court finds: That said cause was submitted to the Court for judgment on October 30, 1958, after all parties through their respective attorneys had stated in open court, that they did not desire to introduce any other evidence. That there is no justification for re-opening said cause, and that motion for re-hearing filed herein by said Third Party Defendants should be denied.” We think the order was correct in the circumstances. Clearly cross-appellants have not shown due diligence, their motion shows some lack of good faith, and comes too late.

The records shows that before the court made the above order, the chancellor made the following statement to counsel: “This cause was filed in December of 1957, and was heard by the Court on October 30,1958. At that time the Court asked all parties if they had introduced all the evidence they desired to introduce and all respective counsel announced that they had done so.”

Accordingly, we affirm on both direct-appeal and cross-appeal.


source: Caselaw Access Project

author: Ed. F. McFaddin, Associate Justice.

license: Public Domain

text:
    McClendon v. McKeown.
    5-1848
    323 S. W. 2d 542
    Opinion delivered May 4, 1959.

      Robert B. Gibson, for appellant.

      Ed Trice and William II. Drew, for appellee.
   Ed. F. McFaddin, Associate Justice.

The question to be decided is whether appellant’s complaint stated a cause of action. In the Democratic Primary Election on August 12, 1958 appellant and appellee were rival candidates — and the only candidates — for the nomination of Mayor of Dermott. On the face of the returns, the vote was 509 for appellee, McKeown, and 497 for appellant, McClendon. On August 28,1958 McClendon filed his petition in the Chicot Circuit Court (under § 3-245 Ark. Stats.) to contest the nomination of McKeown. The Circuit Court sustained a demurrer and dismissed Mc-Clendon’s complaint; and this appeal ensued.

We have a number of cases concerning the sufficiency of allegations of a complaint in an election contest. Some cases discussing this and allied questions in election contests are: Gunter v. Fletcher, 217 Ark. 800, 233 S. W. 2d 242; Wilson v. Anderson, 193 Ark. 799, 103 S. W. 2d 63; Hailey v. Barker, 193 Ark. 101, 97 S. W. 2d 923; Moore v. Childers, 186 Ark. 563, 54 S. W. 2d 409; Hill v. Williams, 165 Ark. 421, 264 S. W. 964; Wassell v. Sprick, 208 Ark. 243, 185 S. W. 2d 939; Robinson v. Knowlton, 183 Ark. 1127, 40 S. W. 2d 450; Crawford v. Harmon, 149 Ark. 343, 232 S. W. 427; and Ferguson v. Montgomery, 148 Ark. 83, 229 S. W. 30.

In Gunter v. Fletcher (supra), the complaint alleged that with the illegal votes discarded the correct vote would have been: for Gunter, 3371; for Fletcher, 3160. We held that a demurrer should not have been sustained to the complaint since the above allegation showed that Gunter claimed to have received a majority of the legal votes cast. But a study of the original transcript in that case discloses that Gunter in his complaint had: (1) given the name of each person alleged to have cast an illegal ballot and the township in which each had voted; (2) stated the name of each person whom it was alleged had voted without poll tax; and (3) listed the name of each of the other voters casting ballots claimed to be illegal. There were several hundred so claimed; and after all of the above allegations, the complaint had concluded with the paragraph numbered 12 which is copied in our •opinion. Thus it will be seen that in Gunter v. Fletcher the contestant gave detailed information of the name and voting place of each person alleged to have cast an illegal ballot.

In Ferguson v. Montgomery (supra), and in Crawford v. Harmon (supra), we pointed out that when challenged ballots were to be discarded — as distinguished from fraud involving the entire box — it was essential that the names of the challenged voters should be given. In sustaining a demurrer to a paragraph, in a complaint we said, in Crawford v. Harmon (supra): “The paragraph contained no allegations with respect to the names of any of the persons who are alleged to have cast the unsigned ballots”.

With the foregoing as the understanding of our cases, we come to the complaint in the case at bar. McClendon never alleged how many legal votes he claimed that each candidate received: he merely stated how many votes the Democratic Central Committee certified. Mc-Clendon alleged that he offered proof to the Democratic Central Committee that twenty-three illegal votes had been cast in the Mayor’s race and that the Committee refused to receive such evidence; but McClendon has never given the name of any person alleged to have cast an illegal ballot. He has never stated as a fact that he received a majority of all the legal votes cast in the election; he has merely stated that if the ballot boxes were opened and the alleged illegal ballots cancelled and a retabulation made, he “. . . verily believes he will have received more votes than L. O. McKeown.” Mc-Clendon has never named any of the persons whose votes he claims to he illegal; and in his brief in this Court be says:

“Tbe appellant did not call tbe names of tbe illegal votes or voters because it is contended it would not have been to his best interest to have voluntarily given tbe opposition bis proof at the time of filing bis petition. However, tbe appellant, in bis petition before tbe Committee and tbe Circuit Court, stated that be would call and list tbe names of tbe illegal voters when called upon by the Court.”

It was not tbe duty of tbe Circuit Court on its own initiative to ask McClendon to name tbe persons alleged to have cast illegal ballots: it was McClendon’s responsibility to allege a cause of action. His continued failure to name tbe persons casting tbe alleged illegal ballots justified tbe Circuit Court in sustaining tbe demurrer as such, rather than merely treating it as a motion to make tbe complaint more definite and certain. In sustaining tbe demurrer and dismissing tbe complaint, the learned Circuit Judge delivered a written opinion, which has proved most helpful to this Court; and we copy and adopt as our own excerpts from tbe said opinion of tbe Circuit Judge:

“An election contest is an adversary proceeding between a candidate not certified and tbe nominee who was certified, if there were only two candidates for tbe office involved. ‘ Tbe pleadings, in an election contest case, should be sufficiently specific to give reasonable information as to tbe grounds of contest.’ Robinson v. Knowlton, 183 Ark. 1127, at Page 1133. While it is true a pleading in a contest does not require the same strict technical accuracy in pleading as usually required in a civil action, yet, the original pleading must state a prima facie case and no amendment will be allowed which states a new and different cause of action. ‘The purpose of tbe contest is to determine what candidate received tbe greatest number of votes; and if there are sufficient facts stated to give the other party reasonable information as to the grounds of the contest, then the case should be tried on its merits. ’ See Gunter v. Fletcher, 217 Ark. 800, 223 S. W. 2d 242.
‘ ‘ The rule controlling, to determine the sufficiency of a petition to contest an election against a demurrer, is stated in Hill v. Williams, 165 Ark. 421, at Page 423: ‘There should have been an allegation in the complaint showing the number of votes received by each candidate, so that it would appear, after deducting the alleged fraudulent votes from the number accredited to appellee (contestee here) that appellant (contestant here) would have more votes than * * * his opponent. ’
“Bearing in mind what the Court said in Gunter v. Fletcher (supra), that a complaint is sufficient against a demurrer if there are pleaded certain specific irregularities and counting of votes, if the evidence sustains such allegations, that would entitle the contestant to prevail, does the Petition and Affidavit of McClendon meet that test? . . . While the Petition of Contestant recites twenty-three illegal votes were cast in the election under question, it is not specifically alleged that the cancellation of such twenty-three votes would result in Mc-Clendon receiving the greatest number of votes cast at such election. The Petition merely requests that the Court make, or order, a recount or retabulation of the legal votes received by each of the candidates, and, ‘that after said cancellation and retabulation, the Petitioner verily believes that he will have received more votes than L. O. McKeown, etc.’ In like wording is Petitioner’s prayer for relief.
“Neither the allegations nor the prayer of the Petition set out a prima facie case under the procedure and allegations essential to state a cause of action for such an election contest. The Petition and prayer for relief suggest a discovery proceedings or ‘fishing expedition’ wherein the Court is asked to supplant or substitute the Court for the County Central Committee . . . It is not the duty, or within the power, of the Court within the scope of the allegations and prayer of the Petition herein, to impound and open the ballot box or boxes, and, in effect canvas the votes cast for Mayor in order to declare the nominee. No fraud is alleged against either the election officials or the Central Committeemen. The demurrer of L. O. McKeown is sustained and this action is dismissed at the cost of the Petitioner.”

The judgment of the Circuit Court is affirmed.

       McClendon first sought a recount before the Democratic Central Committee of Chicot County (under § 8-237 Ark. Stats.), claiming there had been twenty-three illegal votes cast and urging that the Democratic Central Committee should open the boxes and cancel the illegal votes; but he never gave the names of the alleged illegal voters. The Democratic Central Committee refused McClendon’s request and certified McKeown as the nominee. We held in McLain v. Fish, 159 Ark. 199, 251 S. W. 686, that the statute, which is now § 3-237 Ark. Stats., was directory and not mandatory. So the failure of the Democratic Central Committee to grant McClendon’s request te open the boxes and cancel the alleged illegal votes was something that could be reached by an election contest under § 3-245 Ark. Stats., which was the course that McClendon pursued.

       We copy now the remaining portions of McClendon’s complaint not previously abstracted: “This petitioner states that there were seven persons who illegally voted twice in said Mayor’s race and that there were sixteen persons who voted who were not legally qualified to vote-due to the fact that they were not residents of the City of Dermott, so as to entitle them to vote; and both votes of the people who voted twice should be cancelled and the one vote of the non-residents should be can-celled ; that this Court has the authority and duty to open and examine the election boxes containing the ballots and all other papers or lists in connection with the voting to cancel said illegal votes; that after said, cancellation, the Court should make or order a re-count or retabulation of the legal votes received by L. O. McKeown and the legal votes received by Kern McClendon for said office; that after said cancellation and retabulation, the petitioner verily believes that he will have received, more votes than L. O. McKeown and the Court should then afford the proper relief; that the petitioner believes the proper relief will be to-declare h'm the Democratic nominee and L. O. McKeown should by proper procedure be ousted as the nominee or Mayor holding this office. That said petitioner reserves the right to amend this petition as further-evidence might be discovered and the petitioner is making all possible-efforts to discover proof of illegal votes at the earliest possible date.
      “WHEREFORE, petitioner prays that the Court examine certain votes or ballots cast, which will be named by the petitioner when called' upon by the Court, and cancel and hold for naught illegal votes and re-tabulate the votes and properly declare the Democratic nominee or duly elected Mayor of the City of Dermott, and for any and all other proper relief and costs of this action.”

       In 18 Am. Jur. p. 872 “Elections” § 298, the text reads: “Nor is it necessary to give the contestee the name of every alleged illegal voter as to whom he proposes to offer proof.” But the method of conducting an election contest in Arkansas requires such information to be furnished when' — as here — individual ballots are challenged as illegal.


author: George Rose Smith, J. Paul Ward, Associate Justice,

text:
    Black v. Been.
    5-1855
    323 S. W. 2d 545
    Opinion delivered May 4, 1959.

      George W. Johnson and Donald Poe, for appellant.

      Hugh M. Bland, for appellee.
   George Rose Smith, J.

This suit was brought by the appellees, Luther and Vera Been, to obtain reformation of a deed by which they conveyed a tract of about forty acres to the appellants, Virgil and Lois Black. The complaint asserts that the parties intended for the grantors to reserve all the mineral interest in the land, but by mutual mistake this reservation was left out of the deed. The chancellor sustained the plaintiffs ’ contention and entered a decree granting the prayer for a reformation.

The appellants’ principal insistence is that the appellees failed to meet the burden of proving by clear and convincing evidence that a mutual mistake occurred. Hicks v. Rankin, 214 Ark. 77, 214 S. W. 2d 490. After a careful study of the record we are unable to say that the chancellor was wrong in holding that the plaintiffs satisfied their heavy burden of proof.

In 1948 the Beens executed a written contract by which they agreed to sell this tract and another forty to Lloyd and Janice Mills for $3,000, payable in installments over a period of ten years. The contract expressly provided that the sellers were to reserve all the minerals underlying both tracts. Later in 1948 the purchasers assigned their interest in the contract, which had been recorded, to Marion and Minnie Phillips, who began to pay the yearly installments in accordance with the agreement.

In 1952 the appellant Yirgil Black negotiated with Marion Phillips for the purchase of the tract now in controversy. After some haggling about the price it was finally agreed that Black would buy the land for $1,000. This arrangement was acceptable to the appellees, the Beens, who had their attorney prepare a deed conveying the land to the Blacks. The purchase price of $1,000 was paid to the Beens, who applied it as a credit against the balance that was still owed by the Phillipses as assignees of the original contract. Although that contract had provided for a reservation of the minerals no such provision was inserted in the deed from the Beens to the Blacks, and this is the instrument that the chancellor reformed.

The pivotal question is whether the Blacks had knowledge of the fact that the minerals were to be retained by the Beens. On this point both Marion Phillips and his wife testified positively that PTack was informed during the negotiations that the minerals were not to be included in tbe sale. (Mrs. Phillips also says that she showed the original contract to Virgil Black, who read it.) This testimony is corroborated by Luther Clark, an apparently disinterested witness, who states that he heard part of the discussion between Phillips and Black and that the former told Black “that Mr. Been’s mineral rights don’t go with it.”

Thus three witnesses, none of whom has any pecuniary interest in the case, affirmatively state that Black was told about the reservation of the minerals. On the other side there is only the testimony of Virgil Black, an interested party, who denies that anything was said about the mineral rights. This conflict narrows down to an issue of credibility, upon which we are guided by the chancellor’s decision. Souter v. Witt, 87 Ark. 593, 113 S. W. 800, 128 A. S. R. 40.

Counsel for the appellants vigorously insist that there could not have been a mistake common to the Beens and the Blacks, because the latter negotiated only with the Phillipses and did not discuss the proposed transaction with these appellees. Even so, these litigants were the sole parties to the deed, which is the contract now in controversy, and we are convinced that they labored under the same mistake about its contents. That is, the sellers assumed that the deed contained a reservation of the minerals, because that provision was contained in the installment contract that gave rise to the deed; and the buyers also assumed that the minerals were being reserved, because they had been so informed during the negotiations with the Phillipses. It is plain enough that a mutual mistake can exist even though the buyer and seller have not dealt directly with each other; for otherwise reformation could never be had with respect to an agreement negotiated through an agent, a broker, or some third person.

We find no merit in the appellants’ remaining contention, that the appellees are barred by laches as a result of not having filed their suit until 1958. This defense does not appear to have been pleaded or presented in the trial court, and, further, there is nothing to indicate that the delay has worked any disvantage to the appellants. Jewell v. General Air Conditioning Corp., 226 Ark. 304, 289 S. W. 2d 881; Jones v. Temple, 126 Ark. 86, 189 S. W. 847.

Affirmed.

Ward and Johnson, JJ., dissent.

Paul Ward, Associate Justice,

dissenting.

I cannot bring myself to agree with the majority opinion in this case.

This court has frequently and consistently announced the rule applicable to the reformation of a deed on the ground of mutual mistake. In McGuigan v. Gaines, 71 Ark. 614, 77 S. W. 52, this court, after recognizing that a written instrument could be reformed by parol evidence where a mutual mistake had been made, stated:

“. . . There is no doubt that a court of equity may reform a written instrument where on account of mutual mistake the instrument does not reflect the intention of the parties thereto, and it may do so although the mistake be proved by parol evidence only. But in such cases, where the court is asked to reform a written contract against the will of one of the parties thereto, a court must, as a matter of common prudence, proceed with caution, and will decree a reformation only where the evidence shows clearly and conclusively that justice requires it. ‘In no case,’ says Mr. Bishop, ‘ will a court decree an alternation in the terms of a duly executed written contract, unless the proofs are full, clear, and decisive. Mere preponderance of evidence is not enough. The mistake must appear beyond reasonable controversy.’ ”

Numerous other cases could be cited to the same effect.

It is my opinion that the evidence in this case does not measure up to the above required standard. Before the court would be justified in reforming the deed in question it must be shown, by clear and convincing evidence, that there was a meeting of the minds by Black and Been that the mineral rights were not to be conveyed. In Welch v. Welch, 132 Ark. 227, 200 S. W. 139, the court said: “Equity has jurisdiction to reform written instruments in but two well defined cases: (1) Where there is a mutual mistake, that is, where there has been a meeting of minds, and agreement actually entered into, but the contract, deed, settlement, or other instrument, in its written form, does not express what was really intended by the parties thereto”. (The other is where there is a mistake by one party and fraud by the other.) The same statement was approved in Hervey v. College of Ozarks, 196 Ark. 481, 118 S. W. 2d 576.

There is no contention here, and certainly no proof, that Black was guilty of fraud.

I am unable to find in this record any evidence, much less clear and convincing evidence, that Black and Been had an agreement or meeting of the minds relative to the mineral rights. Been himself makes no such contention. On the other hand he testified that he did not converse with Black with reference to a reservation of mineral right. Nor can this vital element of agreement or meeting of the minds be supplied by inference in this case, it seems to me. It is true that there is evidence tending to show Black knew Been had reserved the mineral rights in a sales contract with another party covering this and other lands, but this was no clear and convincing indication that Been would not be willing to give a fee deed to Black, or that Black did not expect one from Been. It is important to note, in this connection, that the contract was not assigned by anyone to Black. So far as the record reveals, there was no significant connection between the deed and the contract. The former in no way depended on the latter.

Also, it seems to me, certain circumstances bear out the conclusion that there was no mutual mistake, i.e. no mistake by Black, (a) The deed was prepared by an attorney, in his own office, selected by Been, and was signed by Been and his wife in the presence of the attorney after he had asked them if it met with their approval. This is the deed which Black accepted and he stated positively that there was no mistake, (b) The deed.in question was executed and delivered in 1952, but this suit was not brought by appellees to reform it until June 25, 1958. Six years appears to be a long time in which to reach a decision to seek redress for a mistake which the majority think is so clearly and convincingly shown. Such a long and unexplained delay suggests an after thought rather than a bona fide grievance.

Johnson, J., joins.


author: Paul Ward, Associate Justice. Ed. F. McFaddin, Associate Justice

text:
    Fitzhugh v. Ford.
    5-1837
    323 S. W. 2d 559
    Opinion delivered May 4, 1959.

      James L. Sloan, for appellant.

      Bruce Bennett, Atty. General, by Ben J. Harrison, Chief Asst. Atty. General, for appellee.
   Paul Ward, Associate Justice.

This appeal challenges the (Arkansas) constitutionality of Act 5 passed by the 1958 Second Extraordinary Session of the General Assembly, which Act provides for the allocation of certain school funds for the benefit of those students who attended the schools closed under Act 4 of the same session of the General Assembly.

On September 16, 1958, L. E. Fitzhugh, et al, being-resident citizens, taxpayers and electors of the Little Eock School District, filed a petition in Chancery Court against Arch Ford as Commissioner of Education and Joe L. Hudson, the disbursing agent, alleging- that said Act 5 violated Article 12, Section 12; Article 16, Section 11, and: Article 16, Section 1 (as amended by Amendment 13), and that the defendants will unlawfully withhold and redistribute state funds unless enjoined from doing- so. The prayer was in accordance with the above allegations.

On September 30, 1958, defendants demurred to the petition on the ground that it did not state a cause of action. Upon the court sustaining- the demurrer and upon the petitioners’ refusal to plead further, the petition was dismissed, and this appeal follows.

In essence, Act 5 provides: (a) It requires the Commissioner of Education to withhold certain State Funds (otherwise allocable to a school district wherein a school has been closed under said Act 4) in an amount calculated on a certain pro rata basis, the correctness of which is not challenged here and which is not material to this opinion; (b) It requires the Commissioner of Education to pay over to other public schools or non-profit private schools accredited by the State Board of Education the funds so withheld an amount calculated on a pro rata basis according- to the number of students (from the closed schools) attending- a recipient school. Simply and briefly stated, Act 5 provides that the money which normally would be suent on a student in a closed school would be paid to the school which he might later attend.

It is contended by appellants that Act 5 violates the three sections of the Arkansas Constitution set out above, and we will discuss them separately in the order mentioned.

1. Article 12, Section 12, in relevant part provides:

‘ ‘ Except as herein otherwise provided, the State shall never assume or pay the debt or liability of any county, town, city, or other corporation whatever, or any part thereof, unless such debt or liability shall have been created to repel invasion, suppress insurrection or to provide for the public welfare and defense.”

Appellants’ argument in relation to the above section is directed only to the payment of public school funds to a private school. Frankly, we are unable to see how the transactions contemplated under Act 5 create a debt or liability on the part of a non-profit private school. If a student from a closed school attends such a private school, any resulting debt or liability would be payable to the school, not by it. Consequently there would be no school debt or liability for the State to assume or pay. There might, of course, be a debt owing by the student to the school, and if we can imagine a student being placed in the category of a “county, town, city, or other corporation”, even then the payment by the State of such a debt has often been approved by our legislature without challenge as to legality. Act 382 of 1947 (now repealed) provided for the state to pay the expenses of World War II veterans who might wish to study veterinary medicine, dentistry, architecture, etc., in schools outside the State of Arkansas. For that purpose $100,000 was appropriated from the General Revenue Fund. Act 243 of 1957 makes similar provisions without restrictions as to courses pursued. Act 313 of 1945 (Ark. Stats. 78-1601) empowers the State to make leases to the Arkansas Livestock Show Association, a private organization, and to furnish money “for the purpose of paying premiums . . .” These and other acts that might be cited are not relied on primarily to sustain the constitutionality of Act 5 but to show a trend or policy that was adopted by the State long before Act 5 was enacted.

2. We do not agree with the contention by appellants that Act 5 violates Article 16, Section 11, of the State Constitution. This section reads: “No tax shall he 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 portion emphasized is what appellants believe to be relevant here. Nor do we agree with appellants that Page, Treasurer v. Alexander, Treasurer, 206 Ark. 479, 177 S. W. 2d 415, sustains their contention, because the facts were entirely different. In the Page case this court, in construing Act 187 of 1943 which directs that a certain per centum of the sales tax should go to “cities and counties,” held it did not include funds accruing before the effective date of the Act. It will be noted that Act 5 deals only with State Funds allocable to individual school districts. So, when a portion of the money allocated to a particular school district follows a student from that district to another school, the finances of no other school district are affected adversely. Legally this amounts to nothing more than transferring a student in one school district to a school in another district accompanied by his portion of the tax fund, which has long been sanctioned by legislative enactment and by this Court. See: Ark. Stats. Section 80-1517, Jones v. Floyd, 129 Ark. 185, 195 S. W. 360, and Van Buren County Board of Education v. Suggs, 183 Ark. 535, 37 S. W. 2d 703. We also held in Ruff v. Womack, 174 Ark. 971, 298 S. W. 222, under facts much more favorable to appellants than those of this case, that there was no diversion of funds and hence no violation of Article 14, Section 2 of our Constitution. This section is very similar to, if not in effect the same as, the section here under consideration.

3. Finally, appellants say Act 5 violates Article 16, Section 1, (as amended by Amendment No. 13) of the Constitution. As stated by appellants, the relevant portion of the above section prohibits the State from lending “its credit for any purpose whatever.” Appellants have failed to point out the manner in which the State would be lending its credit under the provisions of Act 5, and we can think of none. In fact we fail to see how credit is in any way involved. No money will be expended until after it has been collected and appropriated. All the decisions of this court approaching the issues here that we have been able to find are contrary to appellants ’ contention. See: Hays v. McDaniel, Treasurer, 130 Ark. 52, 196 S. W. 934; Schmutz v. Special District of Little Rock, 78 Ark. 118, 95 S. W. 438; Lackey v. Fayetteville Water Company, 80 Ark. 108, 96 S. W. 622; Board of Directors of Jefferson County Bridge District v. Collier, 104 Ark. 425, 149 S. W. 66; and Halbert v. Helena-West Helena Industrial Development Corporation, 226 Ark. 620, 291 S. W. 2d 802.

Affirmed.

McFaddin, J. concurs.

Ed. F. McFaddin, Associate Justice

(concurring).

As stated in my dissenting opinion in Garrett v. Faubus, 230 Ark. 445, 323 S. W. 2d 877, (opinion of April 27, 1959), I regard Act No. 4 of the Second Extraordinary Session of the 1958 Legislature to be violative of Section 1, Article 14 of the Arkansas Constitution; and I think the entire plan of closing the schools should be declared unconstitutional. I continue to adhere to the views so expressed. If those views had prevailed, the Act No. 5, here involved, would fall, because it would have no foundation with Act No. 4 stricken.

But, even so, in Garrett v. Faubus, a majority of this Court held that the Act No. 4 was constitutional for the “present emergency”. In view of such holding, I certainly think Act No. 5 should be sustained. It is a serious effort to help provide schooling for children whose schools have been closed. Of course, the schools should not have been closed, but they have been; and in Act No. 5 the State has recognized its duty to provide education. Act No. 5 applies only to State funds — -not to the millage funds voted in the school district.

"We have in equity the doctrine known as cy-pres, which means, “as near as possible. I think Act No. 5 should be upheld under the doctrine of cy-pres. It is an attempt to provide education “as near as possible”. It is no more a diversion of State funds than the application of the equitable doctrine of cy-pres is a diversion of the original trust funds.

So, even though I regard Act No. 4 as unconstitutional, I nevertheless think that Act No. 5 should be upheld, since the majority has refused to go along with me in my views on Act No. 4.


author: Sam Robinson, Associate Justice.

text:
    Koury v. Koury.
    5-1818
    323 S. W. 2d 554
    Opinion delivered May 4, 1959.

      James M. Rowan, Jr. and L. B. Smead, for appellant.

      Lester E. Bole, Jr., for appellee.
   Sam Robinson, Associate Justice.

Appellant, George Koury, and appellee, Victoria Elizabeth Koury, were married in 1948 and separated April 20, 1957, at which time Mrs. Koury left Mr. Koury by moving from their home in Camden. On January 23, 1958, Mrs. Koury filed this suit for divorce, alleging indignities as a ground therefor. Mr. Koury denied the allegation of the complaint stating a cause of action, and filed a cross-complaint asking that he be granted a divorce on the ground of desertion. The chancellor granted a divorce to Mrs. Koury, and Mr. Koury has appealed. Of course, if Mrs. Koury left the home because of indignities inflicted by Mr. Koury, she is not guilty of desertion. Lambert v. Lambert, 229 Ark. 533, 316 S. W. 2d 822.

According to Mrs. Koury, and her testimony has the ring of truth, she was grossly mistreated by Mr. Koury. When the parties married each other, they were near middle age, both having been married previously, and Mrs. Koury had some finances of her own. Although it does not appear that Mr. Koury had much cash money, he had some property with a potentiality of producing oil. In 1956, largely through the use of money advanced by Mrs. Koury to finance operations, good oil production was obtained on Mr. Koury’s property, and at the time of the separation he had an income of around $5,000 a month. It appears that after Mr. Koury began receiving such a large monthly income he thought he had no further need for Mrs. Koury. According to Mrs. Koury’s testimony, he complained all the time and criticized almost everything she did, telling her that she had no sense and was not reared properly. We gather from the record that Mrs. Koury is a lady with keen sensibilities. Undoubtedly Koury treated her with indignities such as to render her condition in life intolerable. The record supports a finding that he required her to keep books on every penny that was spent; he stood near the telephone when she was talking to friends, and criticized her conversation — this occurred regularly. When she purchased groceries, he checked every item and if everything did not balance he severely criticized her. On one occasion he threatened to slap her because a can of tomatoes had been left off the grocery list. He even complained of such items as chewing gum and paper napkins, and on one occasion compelled her to make a trip to the grocery store to correct an alleged 124 error. Mrs. Koury testified “I looked forward to a grocery buying-expedition in terror ... it was a nightmare to me, ’ ’ and every time she bought groceries the same thing would happen. On any number of occasions Koury threatened to slap her because of some slight error, and stated to her that he wished he had never married her, and complained if her accounts did not balance to the very penny. Although Mrs. Koury knew nothing about using a hammer and nails, he compelled her to nail a strip on a floor and because she did not hit the nail in a proper manner, he threatened to kick her. Koury even tried to supervise the dishwashing and house cleaning. Finally Mrs. Koury became exhausted from nervous tension and had to go to the hospital.

The very nature of the ill treatment inflicted upon Mrs. Koury was such that there could not be much corroboration, and in a case of this kind where there is no collusion her testimony does not need much corroboration. Coffey v. Coffey, 223 Ark. 607, 267 S. W. 2d 499; Fitzgerald v. Fitzgerald, 227 Ark. 1063, 303 S. W. 2d 576. However, her testimony is sufficiently corroborated by the testimony of her son, Robert H. Barnes, a medical doctor. He testified he knew of his own knowledge that Koury berated and belittled Mrs. Koury, using profane language; that he was rude to her; that if something wasn’t exactly right with the food, Koury would get up and leave the table in an arrogant and rude manner; that he was abusive to Mrs. Koury, using profane language. We agree with the trial court that Mrs. Koury proved her ground for divorce.

The decree provides that Mrs. Koury shall receive her statutory interest of one-third of the property of defendant, including oil produced from defendant’s oil wells, together with her statutory interest in all other property of the defendant. This provision of the decree is in accordance with Ark. Stat. § 34-1214. It is estimated that under this provision of the decree Mrs. Koury will receive a monthly income of approximately $1,000, or perhaps more, and she had an 'income from her own property of something over $100 a month. The trial court allowed her alimony of $200 per month. In view of the income that she receives otherwise, we are of the opinion that the $200 a month alimony should be disallowed. Appellant contends that the decree is indefinite and unworkable. We do not agree. In fact, the decree appears to be perfectly clear.

Mrs. Koury’s attorney was allowed a fee of $500 by the trial court. He has asked for an additional fee in this court. We are of the opinion that Mr. Koury should be required to pay on Mrs. Koury’s attorney’s fee an additional $500. The decree therefore should be modified by eliminating the $200 per month alimony, and Mrs. Koury is allowed $500 additional attorney’s fee. As modified the decree is affirmed.


author: Carleton Harris, Chief Justice.

text:
    Fullerton v. Fullerton.
    5-1851
    323 S. W. 2d 926
    Opinion delivered May 11, 1959.

      Willis V. Lewis, for appellant.

      Talley & Owen, by Wayne W. Owen, for appellee.
   Carleton Harris, Chief Justice.

Appellant, Ira Fullerton, appeals from an “Amended Decree” entered by the Pulaski Chancery Court (Second Division), wherein the court vested and confirmed title to a certain 40 acres of land located in Cleburne County, in appellee, Lois Fullerton; further decreed that title to a certain 6 acre tract was held by the parties as tenants by the entirety, and directed that appellant pay to appellee the sum of $20 per month as rent for said property so long as he remained in possession. Mrs. Fullerton cross-appeals from that portion of the decree finding that the two are tenants by the entirety to the 6 acre tract, it being her contention that she is the sole owner of all the property. The facts, in brief, are as follows:

The parties herein were husband and wife, living in Heber Springs, Cleburne County, Arkansas. In July, 1944, the 6 acre tract was deeded to appellee by third parties, while appellant was a member of the armed services. In April, 1946, the 40 acre tract was acquired, likewise being deeded to appellee. The parties lived on the properties until about September, 1955, when appellee came to Little Bock. On January 5, 1956, Mrs. Fullerton filed a complaint in the Pulaski Chancery Court seeking an absolute divorce from Mr. Fullerton. The complaint alleged general indignities, and prayed for the divorce, alimony, costs, and a reasonable fee for her attorney. Included in the complaint was a paragraph as follows: “Plaintiff states there is no property right or title, either real or personal, at issue in this cause of action * * * ,” and then states that no children were born as a result of the marriage. Mr. Fullerton answered, admitting the marriage, agreeing “that there are no property rights involved herein * * * ” and denying the material allegations of the complaint. Following the trial of the issues, the Chancery Court, on May 4, entered its decree granting Lois Fullerton an absolute divorce from Ira Fullerton, ordering that the latter should pay to Mrs. Fullerton the sum of $60 per month, and further directing Mr. Fullerton to pay a fee of $100 to Mrs. Fullerton’s attorney. The decree concluded: “The Court retains jurisdiction of this cause and of the parties hereto for such further orders and proceedings as may be necessary to enforce their rights herein.” On November 13th, appellee filed a petition asserting that appellant had failed and refused to make the payments required under the decree, and asked that he be cited for contempt, and in compliance therewith, Fullerton was ordered to appear before the court on November 20th. Fullerton did not appear on the date set for hearing (it later developing that he was sick and unable to be present as ordered). On such date, the court entered an order, directed to appellant, as follows: “You are herewith ordered by the Court to vacate the premises and property belonging to the Plaintiff, Lois Fullerton, situated in Cleburne County, Arkansas.” Subsequently, appellant filed a petition with the court, asserting unemployment and physical inability to work; further alleging that the farm on which he lived was his own property, “that while in service, he sent the money for the purchase of said property to the then owners, and that the plaintiff, Lois Fullerton, his then wife, learning of said transaction, did fraudulently prepare the deed representing same to have been authorized by the defendant and secured the signatures thereon by the sellers, placing the title to said property in her own name, without the knowledge or consent of defendant. That said plaintiff represented to defendant that the deed was in his name, and that she continued said subterfuge during the time that she lived with him, and that he recently learned for the first time of her fraud and deception,” and asked that the deed to the property in Cleburne County be declared void, and the title vested in him. Appellee responded, asserting that she had owned the lands for more than seven years with the full knowledge of appellant, and that if he had any claim or cause of action relative to the property, same should have been raised and presented to the court prior to the entry of the original divorce decree; that “the cause is now res adjudicaba * * * ,” and appellant “is barred from setting forth any right, title, or interest, in and to said properties, in addition to his having been barred by the seven year statute of non-claim,” and prayed, inter alia, that the title to the properties be quieted and confirmed in her. On trial, the court entered its decree as heretofore set out in the opening paragraph.

In reaching a determination, we find it unnecessary to consider any point urged by appellant for reversal dealing with the proof relating to the ownership of the property, for we conclude that the court, after the lapse of the term, was without jurisdiction to determine the interests of the respective parties in the real estate here involved. The Chancery Court terms for Pulaski County commence the first Monday in April and the first Monday in October. Appellee obtained her divorce decree during the April term, and the order directing appellant to vacate the property was entered during the following October term. We have many times held that a court is without authority to set aside or modify its decrees after the lapse of the term in which they were entered, except upon statutory grounds. Raymond v. Young, 211 Ark. 577, 201 S. W. 2d 583, Coulter v. Martin, 201 Ark. 21, 139 S. W. 2d 688. We have even held this to be true though the motion was filed during the same term that the decree was entered, but not acted upon until after a new term commenced. Stewart-Morris Implement Co. v. Koenig, 226 Ark. 1001, 295 S. W. 2d 352. This question of jurisdiction is ignored in appellee’s brief but we might point out that this Court has previously held that a court, in its original decree, may retain jurisdiction for the purpose of later adjudicating rights of the parties in specific property. In Bradshaw v. Atkins, 216 Ark. 757, 227 S. W. 2d 441, appellant instituted suit against appellee for a divorce, and alleged that appellee owned 80 acres of land near Star City, Arkansas, “and that the plaintiff has not released her dower rights thereto.” The prayer of the complaint asked that she be granted a divorce, and “for her equities in any property owned by the defendant.” She was awarded an uncontested divorce, and the decree recited:

‘ ‘ That the defendant owns eighty acres of land near Star City, Lincoln County, Arkansas, and that the plaintiff has not released dower and homestead rights thereto ; that plaintiff’s rights in and to said real estate should not be determined and declared at this time. * * * It is, further * * * decreed by the court that the question of dower and homestead, and alimony in and to any real estate owned by the defendant at this time be, and the same is hereby, held in abeyance, and the court doth retain jurisdiction of this cause for the purpose of making such further orders concerning plaintiff’s rights in and to said real estate as shown by evidence to be submitted by the parties hereto.”

The following notation was added by appellant’s attorney and signed by appellee:

“I, James Bruce Atkins, hereby consent to the terms of this decree as disposition of real property owned by me. (Signed) James Bruce Atkins.”

In the cause before us, there was no retention of jurisdiction to determine questions relating to real estate. The original divorce decree recites:

4 4 The Court retains jurisdiction of this cause and of the parties hereto for such further orders and proceedings as may be necessary to enforce their rights herein.” (our emphasis)

The enforcement of the rights herein refers only to the $60 per month alimony awarded to appellee; certainly it could have had no reference to real property, for there was no award of realty in the decree, and in fact, both parties alleged that there were no property rights, 4 4 either real or personal,” at issue.

Appellee asserts that the question of the ownership of the real estate is res judicata, i. e., title to the property has been in her name for several years, and, if appellant was making claim to any of the realty, he could, and should, have raised the issue in the original litigation between the parties. Other defenses to his claim are also asserted. We do not pass upon any question relating to ownership of the property. We only state, and find, that the Pulaski Chancery Court is without jurisdiction to determine that issue. The ownership of the property can now only be legally determined by the proper court in Cleburne County.

In accordance with the views herein expressed, the "Amended Decree,” entered on October 23, 1958, nunc pro tunc as of August 27, 1958, insofar as it resolves the title to the real estate, is reversed, both on direct appeal and cross-appeal.

It is so ordered.

       The decree was entered as of April 16th.

       The decree also rendered judgment against appellant for $1,560, plus $102.96 interest, for accrued and unpaid support money, and modified the original decree to relieve appellant from any further payments of support.

       See Act 25 of the General Assembly of 1951.

       Sections 29-506 and 29-508, Ark. Stats. (1947) Anno.


author: Ed P. McPaddin, Associate Justice. J. Seaborn Holt, J.,

text:
    Glover v. Hot Springs Kennel Club.
    5-1800
    323 S. W. 2d 902
    Opinion delivered May 11, 1959.

      Wood, Chesnutt & Smith, for appellant.

      Wright, Harrison, Lindsey <& Upton; House, Holmes, Butler & Jewell; Edward B. Dillon, Jr., and Bichard W. Hobbs, for appellee.
   Ed P. McPaddin, Associate Justice.

This appeal necessitates a study of Act No. 191 of the 1957 Legislature. The question presented is whether it is necessary for the proposition submitted to the voters under § 9 of the Act No. 191 to receive merely a majority of all the votes cast at the election, or must the proposition receive a majority of all of the poll tax holders of the county involved.

The appellee, Hot Springs Kennel Club, Inc., filed action in the Garland Circuit Court against the appellants, being the Garland County Election Commissioners; and prayed inter alia, that the Court direct the defendants to certify to the Arkansas State Racing Commission that the proposition submitted to the voters in Garland County under the Act No. 191 had received a majority of the votes, and had carried. The defendants denied that the proposition had carried. The case was submitted to the Circuit Court on stipulated facts, substantially as follows:

(1) The plaintiff, Hot Springs Kennel Club, Inc., is a corporation; and the defendants, R. Julian Glover, Harvey Craig, and Roy Mitchell, are the duly appointed and acting Election Commissioners of Garland County, Arkansas.

(2) In accordance with Act No. 191 of 1957, the plaintiff made application to the Arkansas State Racing Commission for a temporary franchise to conduct greyhound dog racing in Garland County; said temporary permit was issued; and the defendant Election Commissioners, being notified of the grant of the temporary franchise, called a Special Election in Garland County to submit to the voters therein the issue of approval or disapproval of greyhound racing.

(3) At the said Special Election, held in Garland County on May 6, 1958, there were 4,662 votes cast in favor of greyhound dog racing and 3,882 cast against greyhound dog racing; and the applicable poll tax list of Garland County at the time of the election showed that there were 17,245 poll tax holders named on the list.

On the foregoing stipulated facts, the Circuit Court ruled that the greyhound racing proposition had carried, and directed the defendants to so certify to the State Racing Commission. The Circuit Judge delivered a written opinion which is in the transcript and has proved helpful to this Court. The following are the points relied on by the appellants on this appeal:

“It was the intention of the Legislature, in enacting Sections 6, 9 and 10 of Act No. 191 of 1957 (Sections 84-2821 to 84-2824 and 84-2825, Arkansas Statutes, 1947), to require the affirmative vote of a majority of all of the qualified electors of the county in order to approve greyhound racing. The official Poll Tax List of Garland County for the Year 1957 is prima facie evidence of the number of qualified electors of the county. The proposition for greyhound racing did not receive the affirmative vote of a majority of those listed in the Official Poll Tax List, and the court below, therefore, erred in declaring that the proposition carried.”

I. Intention Of The Legislature. The appellants insist that it was the “. . . intention of the Legislature . . .” to require the affirmative vote of a majority of all the poll tax holders of the County in order to approve greyhound racing. It is well established that in construing statutes it is the duty of the courts to ascertain and declare the “intention of the Legislature,” as expressed in the statute. In State ex rel. Atty. Gen. v. Trulock, 109 Ark. 556, 160 S. W. 516, Chief Justice McCulloch said: “The cardinal rule of interpretation is the ascertainment of the meaning of the lawmakers, as expressed in the language which they used. Not what the lawmakers themselves meant, but what the language they used means; and all rules of interpretation must yield to this as the paramount one.” In Berry v. Sale, 184 Ark. 655, 43 S. W. 2d 225, Chief Justice Hart said: “This Court has uniformly held that, in the construction and interpretation of statutes, the intention of the Legislature is to be ascertained and given effect from the language of the act if that can be done.”

In Bullion v. Aetna Ins. Co., 151 Ark. 519, 237 S. W. 716, Judge Prank G. Smith stated the rule in this language: “In passing upon this question we conceive it to be our duty only to ascertain the legislative intent, and this must be done by interpreting the -words which the Legislature itself has employed in expressing that intent. It is an accepted canon of construction that ‘where a word which has a known legal meaning is used in a statute, it must be assumed that the term is used in its legal sense, in the absence of an indication of a contrary intent . . .’ ” The Circuit Judge, in his opinion in this case, concisely stated the rule: “. . . where the Legislature has used a word, phrase, or group of words which have received a judicial construction and interpretation, it is presumed that the Legislature used the word, phrase, or group of words in the light of the judicial interpretation placed upon said word, phrase, or group of words.”

So we see the words in Sections 6 and 9 of the Act No. 191 here under investigation are: . . a majority of the qualified electors of the county . . . ,” and we proceed now to see if such words have been judicially determined and construed by this Court, in order that we may ascertain the legislative intention in the use of those words.

II. Previous Decisions Construing “Majority Of The Qualified Electors.” As heretofore stated, the question is whether it was necessary for the greyhound racing proposition submitted to the voters of Garland County to receive merely a majority of those voting on the proposition at the election, or was it necessary for the proposition to receive the vote of a majority of all of the 17,245 poll tax holders of Garland County. It will be observed that in Section 6 (A) the words are, “. . . a majority of the qualified electors of such county at a special election called for that purpose . . . and in Section 9 (B) the words are, “. . . and any such proposition shall be carried when approved by a majority of the qualified electors of the county . . . ” Do the said words in Section 6 and Section 9 — -“a majority of the qualified voters of the county” — standing alone and without further qualifying or modifying words, as they do, have a fixed and definite meaning in legal parlance? The answer is, yes: the words do have a fixed and definite meaning by the decisions of this Court; and such fact is the decisive answer in this case. "We have an impressive line of decisions of this Court on the point, some of them being: Vance v. Austell (1885), 45 Ark. 400; Watts v. Bryan (1922), 153 Ark. 313, 240 S. W. 405; Graves v. McConnell (1924), 162 Ark. 167, 257 S. W. 1041; and Browning v. Waldrip (1925), 169 Ark. 261, 273 S. W. 1032.

In Vance v. Austell (supra), the Supreme Court of Arkansas considered Art. 13, Sec. 3 of our Constitution, which says that a county seat shall not be established or changed without . . a majority of the qualified voters of the county . . . ”; and this Court said of the words, “majority of the qualified voters of the county”:

“Does this language mean a majority of those persons resident in the county who possess the qualifications of electors, or merely a majority of those who actually participate in the election? Cases are to be found in the reports where the first mentioned construction has been placed upon similar language in constitutional provisions. Such are Cooke v. Gooch, 5 Heisk., Tenn., 294, afterwards followed in Bouldin v. Lockheart, 1 Lea, 195; Hawkins v. Carroll County, 50 Miss. 735. But the great weight of authority is that, ‘Where a statute requires a question to be decided, or an officer to be chosen by the votes of a majority of the voters of a county, this does not require that a majority of all persons in the county entitled to vote shall actually vote affirmatively, but only that the result shall be decided by the majority of the votes cast; provided always there is a fair election and an equal opportunity for all to participate. In such a case the only proper test of the number of persons entitled to vote is the result of the election as determined by the ballot-box, and the courts will not go outside of that to inquire whether there were other persons entitled to vote who did not do so. The voters of the county referred to by all such statutes are necessarily the voters who voted at the election, since the result in each case must be determined by a count of the ballots cast, and not by an inquiry as to the number not cast.’ McCrary on Elections, Sec. 183 and cases cited; Railway Company v. Davidson County, 1 Sneed, 692; State v. Mayer, 37 Mo., 272; St. Joseph Township v. Rogers, 16 Wall. 644. This doctrine is as old as Rex v. Foxcraft, 2 Burrows, 1017 (decided in 1760), when Lord Mansfield observed, ‘Whenever electors are present and don’t vote at all, they virtually acquiesce in the election made by those who do.’ ”

In Watts v. Bryan (supra), this Court again held that the words, “majority of the qualified electors of such county,” meant only a majority voting on the proposition submitted. The facts in the case emphasize the holding. Amendment No. 3 to the Arkansas Constitution says that the quorum court will have power to levy a 3-mill road tax, “. . . if a majority of the qualified electors of such county shall have voted public road tax at the general election for State and county officers preceding such levy at such election ...” At the election in Searcy County, a majority of those voting on the proposition voted for the 3-mill road tax, but such was not a majority of the persons who voted at the election. In other Avords, many electors voting at the election entirely failed to vote either Avay on the road tax proposition. This Court, in a unanimous opinion by Chief Justice McCulloch, held that the said 3-mill road tax proposition had carried at the election in Searcy County because it had received a majority of the votes of those Avho voted on the proposition, even though it did not receive a majority of those who voted at the election:

“Our conclusion, therefore, is that Amendment No. 3 requires only a majority of those voting on the question in order to authorize the levy of a road tax, and that a majority of the highest number of votes cast at the election is not required.”

In Graves v. McConnell (supra), this Court had before it the words, “majority of the qualified electors residing in said described district.” There Avere 2,250 qualified electors residing in the district. At the election there were only 1,450 votes cast; and of these 760 voted for the proposition and 688 voted against the proposition. This Court, in a unanimous opinion by Justice Carroll D. Wood, held that the proposition had been duly adopted because it received a majority of the votes cast on the proposition:

‘ ‘ Section 5 of the act, among other things, provides: ‘No provision of this Act shall become effective until it has first been approved by a majority of the qualified electors residing in said described district.’ In Watts v. Bryan, 153 Ark. 313, an amendment to the Constitution contained the following provision: ‘If a majority of the qualified electors of such county shall have voted public road tax * * * . ’ In that case we held that this language requires a majority only of those voting on the question, and not a majority of the highest number of votes cast at the election, nor a majority of all persons in the county entitled to vote. See also Vance v. Austell, 45 Ark. 400, where we gave similar language a like construction. The canvass of the returns by the commissioners of the votes cast upon the subject showed a majority for making the law effective. It follows therefore that, under the above decisions, the commissioners should have proclaimed the law in effect.”

Another case to like effect is Browning v. Waldrip (supra). There, the act (No. 579 of 1923) required that the proposition be approved by “a majority of the landowners of the said district”; and this Court, in a unanimous opinion by Justice Carroll D. Wood, said:

“A majority of the landowners in the district, who voted at the election to put in operation the law creating the district, voted in favor of the district. Under the provisions of the act it was to take effect when a majority of the landowners in the district had voted in favor of the law. This provision was complied' with when a majority of the landowners in the district voting at the election on the question favored putting the law into effect. Graves v. McConnell, 162 Ark. 167; Watts v. Bryan, 153 Ark. 313.”

There is no need to emphasize the matter further. When the Legislature of Arkansas used the words in Sections 6 and 9 of this Act, as heretofore quoted— “. . . a majority of the qualified electors of such county at a special election called for that purpose,” and ‘ ‘. . . and any such proposition shall be carried when approved by a majority of the qualified electors of the county” — it is clear beyond peradventure of a doubt that the words were used in their recognized legal significance and meant a majority of people of the county who voted on the proposition, and not a majority of all the people of the county who had poll tax receipts.

We recognize that the Legislature may make the requirements different from a majority of those voting on the proposition at the election: the Legislature has done so in a number of instances. In court house removal elections under § 17-209 Ark. Stats., the Legislature has required that the proponents of removal receive a majority of all of the qualified electors in the county as determined by the poll tax books. See Vance v. Austell, 45 Ark. 400, and Velvin v. Kent, 198 Ark. 267, 128 S. W. 2d 686. As to the petition to call a local option election under Initiated Act No. 1 of 1942 (§ 48-801 Ark. Stats.), the requirement is that the petition be signed by 15 per cent “of the qualified electors as shown on the poll tax records.” (See Tollett v. Knod, 210 Ark. 781, 197 S. W. 2d 744.) In the Act No. 191 here involved, the Legislature showed that it knew about these matters, because in Section 10 of the Act 191 the Legislature, in providing for a referendum petition four years after the first election, said that the referendum petition should contain the signatures of 15 per cent of the qualified electors who voted “in the election for county clerk of said county at the next preceding general election.” In other words, the Legislature recognized that it could make a test; and in Section 10 (C) of the Act No. 191, after thus making the test for the referendum petition, the Act said that the dog racing franchise would be null and void if “a majority of the qualified electors of the county voting on the question” should disapprove the continuance of greyhound racing.

We conclude: that Act No. 191 stated in Sections 6 and 9, that the proposition to be voted on was to be approved by “a majority of the qualified electors of such county”; that the Legislature used those words after they had been judicially construed by this Court in the cases that we have named; and those words had a fixed legal meaning, to-wit: a majority of those who voted on the proposition. Therefore, the judgment of the Circuit Court was correct.

Affirmed.

Ward, J., not participating.

Holt & George Rose Smith, JJ., dissent.

J. Seaborn Holt, J.,

dissenting. I do not agree with the majority view. This action involves the interpretation and construction of Act 191 of the 1957 Legislature. Only a question of law is presented. The facts were not in dispute. The appellants are the Election Commissioners of Garland County Arkansas. Appellee, the Hot Springs Kennel Club, Inc., has its principal place of business in the City of Hot Springs, Arkansas and proceeding under the provisions of Act 191, (Sections 84-2816— 84-2842, inclusive, Ark. Stats. (1947) sought a temporary franchise to conduct greyhound racing in Garland County, Arkansas, and the Arkansas Racing Commission issued the temporary franchise on March 29, 1958. Upon being notified of this action by the racing commission granting the temporary franchise, the Garland County Election Commissioners called a special election to submit to the electors of Garland County Arkansas the question of approval or disapproval of greyhound racing in accordance with the terms of the Act. Thereafter, on May 6,1958, a special election was held in Garland County resulting in 4,662 votes in favor of greyhound racing and 3,882 votes against. Before certifying the result of the election, the commissioners requested an opinion from the Attorney General of the State of Arkansas, giving his interpretation and construction of the provisions of Act 191 for the guidance of the commission. On May 5, 1958, the Attorney General rendered his opinion, holding that under Act 191, in order for the proposition of greyhound .racing to be approved, it must receive the affirmative vote of the majority of all of the qualified electors of Garland County and not merely a majority of those voting in the election. At this stage, the Hot Springs Kennel .Club, Inc., (appellee) brought the present suit asking that the election commissioners be temporarily restrained from certifying that the proposition did not carry, that the Circuit Court construe the meaning of Act 191 and after so doing, direct the election commissioners to certify to the racing commission that the proposition had carried. On September 20, 1958, the Circuit Court, upon a hearing, held that while it was evidently the intention of the legislature to require a majority of all the qualified electors of the county as a whole to vote in favor of greyhound racing before a franchise could be granted, however, that Act 191 included no criterion for determining the number of qualified electors in the county' and since the Act contained this omission, therefore a simple majority of those voting for greyhound racing in the election was sufficient. From that judgment is this appeal. '

For reversal, appellants say, “It was the intention of the Legislature, in enacting Sections 6, 9 and 10 of Act .No. 191 of 1957 (Sections 84-2821, 84-2824, 84-2825, Arkan.sas Statutes, 1947), to require the affirmative vote of a majority of all of the qualified electors of the county in order to approve greyhound racing. The official Poll Tax ■List of Garland County for the year 1957 is prima facie .evidence of the number of qualified electors of the county. .The proposition for greyhound racing did not receive the affirmative vote of a majority of those listed in the Official Poll Tax List, and the court below, therefore, erred in declaring that the proposition carried.”

Among other things, the stipulated facts contained this statement: “ * * * the records of the Collector of Garland County Arkansas reflect that 17,245 1957 poll taxes were purchased in Garland County and that the names of 17,245 poll tax holders appear on the official 1957 poll tax list for Garland County. ’ ’

Those provisions of Act 191, material here, are contained in sections 6, 9 and 10 of that Act, (Sections 84-2821, 84-2824 and 84-2825, Pocket Supp.) Section 84-2821 (A) provides: “Except as otherwise hereinafter provided, the Commission shall not be authorized to grant, nor shall it grant, a franchise to any corporation to conduct Greyhound Racing in any county in this state unless and until the proposition of Greyhound Racing shall have been approved by a majority of the qualified electors of such county at a special election called for that purpose. ’ ’ Section 84-2824 (B) provides: “* * * The special election shall be conducted under the General Election Laws of this State, and at any such election there shall be printed upon the ballots the words ‘ For Greyhound Racing’; and'‘Against Greyhound Racing’; and any such proposition shall be carried when approved by a majority of the qualified electors of the county.” Section 84-2825 (A) “provides that after the lapse of not less than four years, the County Board of Election Commissioners shall, upon petitions filed, call a special election on the proposition of continuing Greyhound Racing in the county, ” and Section 84-2825 (C) “If a majority of the qualified electors of the county voting on the question shall disapprove the continuance of Greyhound Racing, the franchise held by the corporation shall, ipso facto, be null and void as of the final date on which a contest of the results of the election may be commenced, or, in the event of contest, upon the date of final determination of the issue.”

The primary and decisive question presented is whether under the above terms of Act 191, the Legislature intended to require, in the original election, the approval of a majority of all the qualified electors of the county, or only a majority of the qualified electors of the county voting on the question. I am firmly convinced that under the plain terms of the Act, the Legislature intended the approval of a majority of all of the qualified electors within the county and that the trial court erred in holding otherwise.

Just what did the Legislature intend by this Act 191 ? In determining its purpose and intent, we have certain well established rules to guide us: Holt v. Howard, 206 Ark. 337, 175 S. W. 2d 384 — “* * * ‘In seeking to ascertain the legislative intent, * * * the courts will take into consideration all the facts and circumstances existing at the time of, and leading up to, its enactment, such as the history of the times, the habits and activities of the people, the state of the existing law, and the evils to be remedied by the new act.’ * * * It is an elementary rule of construction that effect must be given, if possible, to every word, clause and sentence of a statute. A statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant, and so that one section will not destroy another unless the provision is the result of obvious mistake or error.”

In Lybrand v. Wafford, 174 Ark. 298, 296 S. W. 729, we said: “It is settled by very high authority that, in placing a construction on a constitution, or any clause or part thereof, a court should look to the history of the times, and examine the state of things existing when the constitution was framed and adopted, in order to ascertain the old law, the mischief and the remedy. Constitutions, like statutes, are properly to be expounded in the light of conditions existing at the time of their adoption and the general spirit of the times and the prevailing sentiments among the people.”

I think it clear from the plain and unambiguous language used in the Act that it was the obvious purpose and intent of the Legislature to make it difficult to vote greyhound racing into a county and to make it much less difficult to vote it out. It is significant that it is first specifically provided in the Act, as indicated above, that before a racing franchise may be granted, it must be ‘ ‘ approved by a majority of qualified electors of each county effected, ’ ’ and again in a following section this above provision is repeated in effect and emphasized in this language, “Any such proposition (greyhound racing) shall be carried when approved, by a majority of the qualified electors of the county”. In another subsequent section, the Act further specifically provides that, “If a majority of the qualified electors of the county voting on the question shall disapprove the continuance of greyhound racing, the franchise held by the corporation shall, ipso facto, be null and void”. It would have been difficult, it seems to us, for the Legislature to have used plainer language in expressing its will. This wording of the statute points unerringly to the fact that the Legislature had in mind a distinction between the meaning of the words, “A majority of the qualified electors” and, “A majority of the qualified electors voting on the question”.

The trial court, in its opinion, held that: “ * * * the records of the Collector of Garland County Arkansas reflect that 17,245 1957 poll taxes were purchased in Garland County and that the names of 17,245 poll tax holders appear on the official 1957 poll tax list for Garland County. * * * In order to grant a franchise, a majority of the qualified electors of the county must vote in favor of having greyhound racing, but only a majority of those voting on the proposition is required to cancel a franchise. Therefore, there can be no question but that it was the intention of the Legislature to require a majority of all the qualified electors of the county to vote in favor of Greyhound Racing before a franchise could be granted.”

I fully agree with the trial court’s finding that the Legislature intended to require the affirmative vote of a majority of the qualified electors of any county in favor of greyhound racing before a franchise could be issued, but I do not agree that the Legislature failed to effectuate its intent by not including in the Act any specific criterion for determining the'number of qualified electors in the county at the time of the election for tlie simple reason that none was needed to carry out the intent of the lawmakers. I also agree with appellee’s argument that the law in this state is well settled that the words, “A majority of qualified electors”, standing by themselves and without more, mean a majority of the qualified electors voting at the election. See Vance v. Austell, 45 Ark. 400. It appears to be equally well settled, however, in this state, that the Legislature may, by appropriate language, prescribe a requirement for the affirmative vote, or approval, of a greater majority than a mere majority of those voting at the election as it did prescribe by Act 191 here. It is significant that in the Vance v. Austell case, supra, it was held that while the constitutional provisons fixed a minimum vote necessary to remove the county seat, but, that the Legislature had full power to provide any additional or higher conditions for removal of a county seat, without violating the Constitution. The question at issue in the Vance Case was an Act of the Legislature which required that in any election for removal of a county seat the number of qualified voters of a county should be ascertained by the assessor’s return should be required to vote in favor of removing the county seat. It is thus apparent that while the words, “A majority of the qualified voters”, or “A majority of the qualified electors ’ ’, mean, standing alone, only a majority of those voting at the election, however, the Legislature may prescribe that a greater majority may be required in an election on any proposition than those voting on such proposition. Had the Legislature thought the words, “A majority of the qualified electors of a county” to mean only “A majority of the qualified electors voting on the proposition”, it would have been easy for it to have said so by using this latter expression only throughout the Act 191.

In the present case it is stipulated that 17,245 1957 poll taxes were purchased in G-arland County, as reflected by the official poll tax list; that 4,662 votes were cast for greyhound racing and that 3,882 votes were cast against. Obviously, a majority of the qualified electors iu Garland County here would be more than 8,600 and that the affirmative vote for greyhound racing fell far short of this number. We. take notice that the passage of Act 191 followed closely on the heels of public disapproval of the law then existing and relating to the awarding of a franchise for greyhound racing in West Memphis, Arkansas during 1956. It seems obvious that Act 191 was enacted to tighten control over greyhound racing. We must also bear in mind here that greyhound racing, like selling intoxicating liquors, is a privilege, impressed with the public interest, and is not a common right to all, and is, therefore, subject to legislative regulation. In McClure v. Topf and Wright, 112 Ark. 342, 166 S. W. 174, in holding valid a statute that liquor licenses should be issued only after filing of a petition signed by a majority of the adult white inhabitants living within a city, we said: “The sale of such liquors in this way has therefore been at all times by the courts of every state considered as the proper subject of legislative regulation. It is a question -of public expediency and public morale and not of Federal Law. The police power of the state is fully competent to regulate the business, to mitigate its evils, and to suppress, it entirely. There is no inherent right of a citizen to thus sell intoxicating liquors by retail; it is not a privilege of a citizen of a state or of a citizen of the United States. The manner and extent of regulation rest in the governing authority. ■ It is a matter of legislative will only. ’ ’ The principal of law announced in that case applies with equal force in the present case.

We have repeatedly held that the poll tax list prepared in accordance with Section 3-118 Ark. Stats, is prima facie evidence of the right to vote and evidence of the number of qualified electors in the county, or district, in which the election is held, and could be used as a proper criterion in determining such number of qualified voters. Here the official poll tax list of Garland County was, by stipulation, admitted in evidence and we hold that it was prima facie correct, and the burden was on appellee to refute this presumption of verity by proof that it was incorrect.

The trial court was of the opinion that Act 191 designated no criterion by which to determine a majority of the qualified electors in the county and this opinion of the trial court is supported by appellees. In this, I think they are in error. In the case of Ferguson v. Leach, 210 Ark. 1032, 199 S. W. 2d 305, this court treated the official poll tax list as the criterion by which to determine 15% of the qualified electors as required by the statute.

Accordingly, I would reverse the judgment with directions to appellants, Garland County Election Commissioners, to certify to the Arkansas State Racing Commission that the proposition to permit greyhound racing did not carry.

George Rose Smith, J., dissenting. My very strong disagreement with the majority in this case can be quickly explained by means of an illustration. Let it be supposed that the legislature adopts a statute providing that upon a person’s death intestate his real property shall descend as follows:

“(a) In the case of property that is an ancestral estate, to the decedent’s children in equal shares, per stirpes.
“ (b) In the case of property that is a new acquisition, to the decedent’s children and adopted children in equal shares, per stirpes.”

According to the reasoning of the majority in this case, under such a statute adopted children would be entitled to share in ancestral property. Why? Because we have held in three cases that the word children includes adopted children. Kelly v. Kelly, 176 Ark. 548, 3 S. W. 2d 305; Deener v. Watkins, 191 Ark. 776, 87 S. W. 2d 994; Dyer v. Lane, 202 Ark. 571, 151 S. W. 2d 678. We must therefore conclude that the legislature meant to include adopted children in subsection (a) of the supposed statute, for the word children must be given its settled legal meaning.

Now that conclusion would be wrong, as I wholeheartedly think the majority’s conclusion in this case to be. The rule that a word or phrase in a statute is to be interpreted in harmony with earlier judicial decisions is not an inflexible principle, to be woodenly applied in every instance. It is merely one of many rules of statutory construction, designed to heljj the courts discover the legislative intention when there is reason for uncertainty. As we said in Bullion v. Aetna Ins. Co., 151 Ark. 519, 237 S. W. 716: “It is an accepted canon of construction that ‘where a word which has a known legal meaning is used in a statute, it must be assumed that the term is used in its legal sense, in the absence of an indication of a contrary intent.’ ” (My italics.)

Going back to my illustration, we are practically certain that the legislature did not mean for the word children to include adopted children in subsection (a), because the different phraseology in subsection (b) makes it clear that a difference in meaning was also intended. The presumption that a difference in language carries with it a difference in meaning is based upon common sense and has been described as a presumption of great force. Commonwealth v. Woodring, 289 Pa. 437, 137 Atl. 635.

I am at a loss to discover any distinction between the illustration I have put and the case at bar. If the legislature had adopted only subsection (a) of the supposed statute, I should agree that the word children would embrace adopted children, in accordance with our decisions. If the legislature had adopted only § 9 of Act 191 I should agree that “a majority of the qualified electors of the county” would mean a majority of those voting on the question. But the explicit reference to adopted children in subsection (b) convinces me that the legislature did not use the word children in its accepted legal sense in subsection (a). In like manner, the explicit reference to “a majority of the qualified electors of the county voting on the question” in § 10 of Act 191 convinces me that the legislature did not use the shorter phrase in its accepted legal sense in § 9. I can see a sound reason for excluding adopted children from a share in ancestral property, and I can see a sound reason for making it easier to vote dog racing out than to vote it in. I do not, however, see any reason for treating the dog’ racing proprietors more favorably than we would treat orphans in the illustration I rely on.

       This Act is captioned: “An Act to Legalize Greyhound Racing and Pari-Mutuel Wagering Thereon in All Political Sub-Divisions of the State of Arkansas; to Regulate and Control Greyhound Racing and Pari-Mutuel Wagering Thereon in the State of Arkansas; to Repeal Act 339 of the Acts of 1935, approved April 4, 1935; and for Other Purposes.”

       Por convenient reference, we copy the pertinent portions of the sections of Act No. 191, as above referred to, with emphasis supplied by us:
      “Sec. 6. (A) Except as otherwise hereinafter provided, the Commission shall not be authorized to grant, nor shall it grant, a franchise to any corporation to conduct Greyhound Racing in any county in this State unless and until the proposition of Greyhound Racing shall have been approved by a majority of the qualified electors of such county at a special election called for that purpose . . .
      “Sec. 9 (B) The special election shall be conducted under the General Election Laws of this State, and at any such election there shall be printed upon the ballots the words ‘For Greyhound Racing’ and ‘Against Greyhound Racing’; and any such proposition shall be carried when approved by a majority of the qualified electors of the county

      “Sec. 10 (A) After the elapse of not less than four (4) years next following the date of any election conducted pursuant to Section 9 hereof, the County Board of Election Commissioners shall, upon petitions filed with it containing the signatures of qualified electors of the county of not less than fifteen per cent (15%) of the total number voting in the election for County Clerk of such county at the next preceding General Election, together with a sum of money estimated by the Board as sufficient to pay all expenses of the election, call a special election on the proposition of continuing Greyhound Racing in the county . . .
      “Sec. 10 (C) If a majority of-the qualified electors of the county voting on the question shall disapprove the continuance of Greyhound Racing, the franchise held by the corporation shall, ipso facto, be null and void as of the final date on which a contest of the results of the election may be commenced, or, in the event of contest, upon the date of final determination of the issue.'’

       The provisions in Sections 10 (A) and 10 (B) relate to subsequent elections, and will be discussed near the end of this opinion.

       In the same cases of Vance v. Austell, the Court said that the Legislature could make a higher test than the “majority of the voters of the county”, and that the higher test could he used, as, for instance, in § 17-209 Ark. Stats., wherein it is provided: “To ascertain the number of qualified electors of any county for the purposes of this Act and the lawful majority necessary to authorize the change or removal of any county seat as herein provided for, the county court shall be governed by the number of persons who have paid their poll tax, as shown by the names of persons who have paid their poll tax as filed with the county clerk by the collector (on the first Monday in July)-preceding the holding of any election for the removal or change of any county seat under this Act . . .” In short, the Court held in Vance v. Austell that the words, “majority of the voters of the county”, standing alone, mean the majority of those voting at the election; and that if the Legislature wanted to prescribe a higher test, as the majority as determined by the poll tax books, then the Legislature could do so; but, in the absence of such further requirements, the words “majority of the voters of the county” mean the majority of those voting on the proposition at the election duly held.

       Formerly this Court held that the language, “if a majority of the electors voting at such election adopt such amendments the same shall become a part of this Constitution”, meant a majority of all the electors voting at the election and not a mere majority of those voting on the particular proposition. See Rice v. Palmer, 78 Ark. 432, 96 S. W. 396; and Hildreth v. Taylor, 117 Ark. 465, 175 S. W. 40. But a Special Supreme Court of Arkansas (of which former Governor T. C. McRae was Special Chief Justice), in the case of Brickhouse v. Hill, 167 Ark. 513, 268 S. W. 865, overruled Rice v. Palmer and Hildreth v. Taylor, and held that a constitutional amendment was adopted when it received only a majority of those who voted on the proposition: it was not required to receive a majority of all the people who voted at the election.