author: George Rose Smith, Justice. John I. Purtle, Justice,

text:
    Ricky Ray RECTOR v. STATE of Arkansas
    CR 83-39
    659 S.W.2d 168
    Supreme Court of Arkansas
    Opinion delivered October 17, 1983
    [Rehearing denied November 21, 1983.]

      Stripling ir Morgan, by: Dan Stripling and M. Watson Villines, II, for appellant.

      Steve Clark, Atty. Gen., by: Alice Ann Burns, Deputy Atty. Gen., for appellee.
   George Rose Smith, Justice.

Ricky Ray Rector was charged with capital murder in the shooting of Bob Martin, a Conway city policeman acting in the line of duty. Ark. Stat. Ann. § 41-1501 (1) (b) (Repl. 1977). In a bifurcated trial the jury returned a verdict of guilty and imposed the death penalty. Nine separate points for reversal are argued. Counsel state with commendable candor that several other possible points are not being urged, for want of merit. We affirm the judgment.

The first stage of the trial was brief, the facts being essentially undisputed. On March 22, 1981, Rector, age 28, shot and killed Arthur Criswell at a restaurant in Conway and wounded two other men. For two days the police searched for Rector. On the afternoon of March 24 Officer Martin, in uniform, went to the home of Rector’s mother, in Conway. While the officer was talking to Rector’s mother, sister, and nephew, Rector entered the back of the house and came into the living room. Rector and the officer knew each other and may have exchanged a few words of greeting. Within a few minutes Rector, who had not joined in the conversation, drew a pistol and shot Officer Martin twice. Rector left by the back door and said to his nephew’s wife, whom he met crossing the yard: “I just shot that cop. ” A few moments later Rector attempted suicide by shooting himself in the forehead, the bullet entering the front part of his brain. That evening the wound was surgically cleaned and closed.

Among the points for reversal, we first consider the argument that death-qualified juries are unconstitutional. That question was left open in Witherspoon v. Illinois, 391 U.S. 510 (1968), because the Court found the evidence too tentative and fragmentary to support a firm conclusion. We do not take that disposition of the issue to carry an implication that the Court would necessarily have disapproved death-qualified juries if the proof had been complete.

Since Witherspoon the state courts have uniformly upheld the validity of death-qualified juries. (The force of our own cases is conceded by the appellant, who asks that they be overruled.) The federal courts of appeal, however, are not in agreement. In the Seventh Circuit the court left the question open in 1976, finding the proof still inconclusive. United States ex rel. Clark v. Fike, 538 F.2d 750 (7th Cir. 1976). In the Fifth Circuit the court assumed, without deciding, that death-qualified jurors are prone to convict, but the court nevertheless upheld the death-qualified jury. Its reasoning was in part that a juror implacably opposed to capital punishment might choose to hang the jury even in the face of overwhelming proof, with the possibility that a succession of such mistrials could defeat the State’s attempts to enforce its death penalty. Spinkellink v. Wainwright, 578 F.2d 582 (5th Cir. 1978), followed with further discussion in Smith v. Balkcom, 660 F.2d 573 (5th Cir. 1981).

In our circuit, the Eighth, the court has apparently interpreted Witherspoon to mean that if death-qualified juries had then been shown to favor the prosecution, the Supreme Court would have prohibited such juries. Grigsby v. Mabry, 637 F.2d 525 (8th Cir. 1980). We so understand the Grigsby opinion simply because the majority, without discussing the issue on its merits, flatly stated that if it can be shown that death-qualified juries are more likely to convict, “Grigsby has made a case that his constitutional rights have been violated and he would be entitled to a new trial.” The case was accordingly remanded to the Arkansas district court to allow it to determine as a question of fact whether death-qualified juries are prone to convict.

The Grigsby opinion, remanding the case, was delivered on November 18, 1980. The district court completed its evidentiary hearing in July, 1981. The district court then delayed the case for more than two years, with Chief Judge Eisele finally issuing a 91-page opinion on August 5, 1983, declaring death-qualified juries to be unconstitutional. Grigsby v. Mabry, 569 F. Supp. 1273 (E.D. Ark. 1983). Since that opinion is the first one not only examining the factual issues in detail but also banning the death-qualified jury, we have thought it best to re-examine the issue in the light of that opinion.

At the outset we must clear the air by commenting on a ten-page analysis in the district court’s Grigsby opinion, purportedly tracing the history of jury selection in capital cases in Arkansas and criticizing this court for its recent decisions in that field of law. Manuscript opinion, pp. 71 -81. The dis trict j udge evolved a theory (based on our decision in Atkins v. State, 16 Ark. 568 [1855], and on an 1869 statute permitting a challenge for implied bias if a juror had such conscientious opinions as would preclude him from finding the defendant guilty, Ark. Stat. Ann. § 43-1920 [Repl. 1977]) that the Arkansas law originally permitted a challenge for cause only if the venireman could not find the defendant guilty, regardless of the venireman’s attitude about the death penalty. The opinion, noting that our later cases permit the challenge if the venireman cannot impose the death penalty, then puts the question: “When and how did the Arkansas law change?”

The court answers its own question by concluding that between 1968 and 1970, and in response to the ruling in Witherspoon-.

[The Arkansas Supreme Court] decided to no longer adhere to the limitation and exclusion of jurors as provided by the statute. Instead, it decided that if a juror could never vote to impose the death penalty, he could be excluded altogether. No inquiry apparently had to be made as to whether the juror was nevertheless capable of rendering a fair and impartial verdict upon the guilt or innocence of the defendant. . . .
The bottom line of this analysis is that prior to Witherspoon, Arkansas focused on the most traditional and accepted of voir dire inquiries: whether a prospective juror’s scruples would preclude him from rendering a verdict of guilty and the court relied directly on the legislatively mandated language. After Witherspoon, the court no longer relied on the exclusion statute but simply adopted Witherspoon as the predicate for a judicially established Arkansas rule that allowed the exclusion of prospective jurors from the guilt-innocence phase on the ground that they could never impose the death penalty if called upon to assess a penalty. [District Court’s italics.]

There is more to the same effect.

The district judge’s decidedly critical analysis of our cases would be disturbing if it were not so readily apparent that the analysis and criticism are totally and demonstrably wrong. Our decision in Atkins did not even remotely contemplate that a j ury might first find a defendant guilty of a capital offense and then select or reject the death penalty. The simple fact, evidently unknown to the district court in Grigsby, is that from statehood until 1915 the death penalty was mandatory in all capital cases, the j ury taking no part in fixing the penalty. Rev. Stat., ch. 44, div. 3, art. 1, § 7 (1837). That was of course true in 1869, when the implied bias provision was enacted. As reflected by scores of appellate records in the state’s archives, the usual guilty verdict was: “We, the jury, find the defendant guilty of first-degree murder, as charged in the indictment.” That ended the trial, with the jury being discharged and the court entering the judgment as fixed by law.

Thus this court did not change its position in response to Witherspoon. We changed a half century earlier, to give effect to the 1915 statute which for the first time recognized life imprisonment as a permissible sentence in Arkansas and made it an alternative punishment in all capital cases. Ark. Stat. Ann. § 43-2153. All this was fully explained almost twenty years before Witherspoon when we said in Needham v. State, 215 Ark. 935, 224 S.W.2d 785 (1949):

During the selection of the jury the prosecuting attorney was permitted to ask each juror if he had any conscientious scruples against the imposition of the death penalty. The statute defines implied bias as including such conscientious opinions as would preelude the juror from finding the defendant guilty of an offense punishable by death. Ark. Stats. (1947) § 43-1920. It is argued that the State should have been allowed to inquire only whether the juror’s conscience would preclude his finding the defendant guilty, thereby permitting the service of jurors who would vote for a verdict of guilty but approve only the alternative penalty of life imprisonment. The history of our statutes rebuts this suggestion. When the statute defining implied bias was enacted the death penalty was mandatory; so it was then sufficient for the legislature to refer merely to a finding of guilt, the punishment following as a matter of course. Not until 1915 did the legislature give the jury the option of imposing life sentences in capital cases. Ibid,., § 43-2153. The legislature evidently meant for the jury to exercise its discretion in selecting the punishment, but it is obvious that a juror can exercise no discretion if his conscience does not permit him to vote for the death penalty in any case. The statutory history in Idaho has been identical with our own, and there it is held proper for the State to inquire whether a juror has scruples against capital punishment. State v. Wilson, 41 Idaho 616, 243 P. 359. Among many other cases approving this inquiry when the jury in its discretion may impose a life sentence are: Shank v. People, 79 Colo. 576, 247 P. 559; State v. Leuch, 198 Wash. 331, 88 P.2d 440; State v. Favorito, 115 N.J.L. 197, 178 A. 765.

We do find it bewildering that the Grigsby opinion, at page 80, quoted the very next paragraph in the Needham opinion without attaching any weight to what had just preceded it.

The federal court invalidated the death qualification of jurors on two grounds: “first, it denies the accused a trial by a jury representative of a cross-section of the community; and second, it creates juries that are conviction-prone.” In the trial of the case at bar those grounds were relied upon in Rector’s motion for a bifurcated trial with two juries. That motion was supported by a stipulation, agreed to by the prosecution, that Dr. Robert M. Berry is an expert in the area and would testify in conformity with his recent article, Death-Qualification and the “Fireside Induction,” 5 UALR L.J. 1 (1982). The trial judge overruled Rector’s motion.

We need consider only the federal court’s second finding, that conviction-prone juries are for that reason unconstitutional, because if the State has a significant interest that justifies the exclusions inherent in the death-qualification process, it is immaterial that the excluded veniremen might be considered to be a distinctive group in the community. Duren v. Missouri, 439 U.S. 357 (1979).

For this discussion we assume, as did the court in Spinkellink, that death-qualified jurors are more prone to convict than those excluded under Witherspoon. The question, then, is this: Should jurors unalterably opposed to capital punishment be permitted to participate in the determination of guilt or innocence in capital cases? We are firmly of the view that their exclusion is proper, for either of two reasons.

First, we cannot regard conviction-proneness either as inherently wrong or as destructive of the juror’s impartiality. In the various studies on the subject there is almost uniformly an undercurrent of thought, not expressed but easily sensed, that jurors who believe in the death penalty are by their nature barbarians in modern society. That view certainly condemns most Americans. The Arkansas General Assembly, in common with the legislatures in at least two thirds of the other states, re-enacted a death-penalty statute after the Supreme Court struck down all such laws in 1972. Needless to say, we as judges are under a duty to respect and give effect to the laws made by the people or their representatives, no matter what our personal beliefs might be.

We have no reason to doubt that any tendency of a particular juror, not inflexibly opposed to the death penalty, to lean toward conviction in capital cases arises from one of the most deeply rooted feelings in human beings: an instinctive urge to condemn injustice. That urge, depending upon the comparative atrociousness of the particular offense, may vary from resentment to indignation, then to anger, and finally to outrage. It cannot be expected that a juror’s ability to reason with complete detachment will be wholly unaffected by such an uncontrollable reaction of human nature to shocking injustice.

Human nature is not unconstitutional. From the earliest days of the common law, which ultimately created the jury system now embedded in our constitutions, the human urge to redress manifest wrongs played its part in the development of the criminal law. Justice Holmes, in tracing that development, pointed out that there are many crimes with respect to which the wrongdoer cannot be forced by the law to compensate the principal sufferer, as in the case of murder or manslaughter. Holmes then went on to show how, in that situation, punishment of the wrongdoer becomes necessary:

In all these cases punishment remains an alternative. A pain can be inflicted upon the wrong-doer, of a sort which does not restore the injured party to his former situation, or to another equally good, but which is inflicted for the very purpose of causing pain----The prisoner pays with his body.
The statement may be made stronger still, and it may be said, not only that the law does, but that it ought to, make the gratification of revenge an object. This is the opinion, at any rate, of two authorities so great, and so opposed in other views, as Bishop Butler and Jeremy Bentham. . . .
The first requirement of a sound body of law is, that it should correspond with the actual feelings and demands of the community, whether right or wrong. If people would gratify the passion of revenge outside the law, if the law did not help them, the law has no choice but to satisfy the craving itself, and thus avoid the greater evil of private retribution. At the same time, this passion is not one which we encourage, either as private individuals or as law-makers. Moreover, it does not cover the whole ground. There are crimes which do not excite it, and we should naturally expect that the most important purposes of punishment would be coextensive with the whole field of its application. [O. W. Holmes, The Common Law, pp. 40-42 (1881).]

As Holmes implied, some crimes do not excite the feeling of outrage in law-abiding citizens, but such lesser offenses are not punishable by death. Capital offenses characteristically comprise the most atrocious of crimes: the murder of helpless victims of rape or robbery and the murder of law enforcement officers, who stand in their line of duty between the ordinary citizen and the ruthless criminal. We may ask, why should the most cowardly and contemptible of criminals, merely by reason of the viciousness of their crimes, be favored in jury selection to a greater degree than any other accused person or any litigant in a civil case? The studies opposing death-qualified juries present no answer to that inquiry.

One would expect the most upright and moral veniremen to be the ones most deeply outraged by the type of crime for which the prosecution seeks the death penalty. Must we say that a jury composed of such veniremen cannot be regarded as impartial? On this point a clear indication of legislative policy is to be found in the federal and Arkansas statutes excluding convicted felons from jury service. 28 U.S.C. § 1865; Ark. Stat. Ann. § 39-102 (Supp. 1983). Unquestionably that exclusion is intended to bar from the jury box the one class of persons least likely to respect and give effect to the criminal laws. Are those statutes unconstitutional as depriving an accused of jurors not prone to convict? Obviously not. In harmony with that legislative point of view, we can find no unconstitutional want of impartiality in the makeup of a death-qualified jury.

Our second reason for disagreeing with the Grigsby conclusion is a practical one: A jury system that has served its purpose admirably throughout the nation’s history ought not to be twisted out of shape for the benefit of those persons least entitled to special favors. It has always been the law in Arkansas, except when the punishment is mandatory, that the same jurors who have the responsibility for determining guilt or innocence must also shoulder the burden of fixing the punishment. That is as it should be, for the two questions are necessarily interwoven. By analogy, in civil cases we do not affirm a finding of liability but remand for a determination of damages only, because the possibility of a compromise in the jury room links the two issues inseparably together. See Fulbright v. Phipps, 176 Ark. 356, 3 S.W.2d 49 (1928); Manzo v. Boulet, 220 Ark. 106, 246 S.W.2d 126 (1952). No similar problem seems even to have arisen in our criminal cases.

Every accused person being tried by jury is protected by a host of constitutional guaranties, particularly significant ones being the continuing presumption of innocence, the state’s burden of proof beyond a reasonable doubt, the privilege against self-incrimination, and the unanimous verdict. Even with those guaranties, however, we should not be averse to suggested changes in the jury system (which we think should be specified by legislation, not by judicial directive) if the resulting advantages could be shown to outweigh the disadvantages. So far we have not seen a suggested change meeting that test.

The Grigsby proposed modification, involving the same case being tried twice before successive juries, is the least appealing of the possibilities that have come to our attention. Such a second trial would be comparable to having the actors in a play, after the audience has left the theater, repeat their lines in a second performance for a few spectators in a nearly empty house. Such repetitive trials could not be consistently fair to the State and perhaps not even to the accused.

Other suggested modifications have included (a) the empaneling of a second jury at the outset, to listen to the actual trial, and (b) the selection of alternate jurors to replace, in the penalty phase of the trial, those jurors who could not vote for the death penalty in any circumstances. Colussi, The Unconstitutionality of Death Qualifying a Jury Prior to the Determination of Guilt, etc., 15 Creighton L. Rev. 595 (1982). The difficulty with both those schemes for shuffling jurors in and out of the jury box is the separation of certain jurors’ responsibility for the verdict from their responsibility for fixing the penalty. The two must go hand in hand, else the common law jury system no longer exists.

Finally, we perceive no answer to the practical objection posed by the Fifth Circuit Court in the Spinkellink case, supra. That is, what is to prevent a juror strongly opposed to capital punishment, in an effort to avoid feeling any responsibility for a death sentence, from choosing to hang the guilt-innocence jury by a vote for acquittal? If that stratagem became common knowledge, as it certainly would, the state’s interest in the even-handed application of its laws, including the death penalty statute, could be frustrated. In fact, capital punishment could in effect be abolished, not by popular will but by a deliberate ruse.

Our conclusion is that death-qualification of the j ury in capital cases has been and continues to be a constitutional procedure.

A second argument for reversal is that the trial judge should have found Rector incompetent to stand trial against the death penalty. A parallel question of competency was decided adversely to Rector on his earlier appeal from his conviction for the murder of Arthur Criswell. Rector v. State, 277 Ark. 17, 638 S.W.2d 672 (1982). The proof in the two cases is quite similar, although in this case a witness for the State, Dr. Hamed, thought that Rector’s condition was much improved as compared to the time Dr. Hamed saw Rector soon after his surgery.

The expert proof is in sharp conflict, as it was on the other appeal. It is argued, however, that it takes a higher degree of competency to defend against the death penalty; so the two appeals are distinguishable. No doubt the issues may be more extensive in a death case, in which aggravating and mitigating circumstances are involved, but we do not discern any basis in the testimony for relating Rector’s mental condition to the defense of a capital charge in particular. We must conclude, as we did on the earlier appeal, that the trial judge’s decision is not clearly erroneous.

Third, it is insisted that the trial judge should have granted a request for a sequestered voir dire examination of each prospective juror. A psychologist testified in generalities about the defects in an unsequestered voir dire, but he actually brought up nothing that a trial judge would not know from his own experience. The motion for sequestration was addressed to the trial court’s discretion. Heffernan v. State, 278 Ark. 325, 645 S.W.2d 666 (1983). The only possibly prejudicial remark heard by other veniremen was too inconclusive to call for a mistrial — a fourth point argued for reversal. We find no abuse of the trial court’s discretion in its rulings upon these matters.

A fifth point is that venireman McKenna was not so opposed to the death penalty as to warrant the court in excusing him for cause. There are two answers to this contention, First, there was no objection to the excusal of McKenna. Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982); Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). Second, McKenna fundamentally took the position that he could not vote for the death penalty and perhaps not even for a life sentence without parole. He did say, however, in response to continued questioning by defense counsel: “I think — and this is really hypothetical — if I knew that the person accused would assuredly kill others in the future, then in that situation I guess I would reluctantly go along with it. Other than that, I would not.” The Supreme Court has said, however, that a venireman should not be excused unless he is irrevocably committed to vote against the penalty of death “regardless of the facts and circumstances that might emerge in the course of the proceedings.” (Our italics.) Davis v. Georgia, 429 U.S. 122 (1976), quoting a Witherspoon footnote. There was certainly no possibility that in the course of this trial McKenna would know that Rector would assuredly kill others in the future. Hence McKenna was properly excused for cause. If this is not so, then defense counsel is always in a position to present to a venireman a totally irrelevant hypothetical situation and, if the juror admits that he might vote for the death penalty in that case, insist that the juror is acceptable. We do not understand the Supreme Court’s decisions to have gone that far.

Sixth, venireman Thacker, who was eventually excused by the defense, said that in some circumstances he thought the death penalty would be appropriate for the killing of a police officer, but he also said that his mind was not made up, there might be extenuating circumstances, and he would have to judge the case in the light of the total evidence. The appellant argues that the court should have sustained a challenge for cause, because Thacker’s mind was set in favor of the death penalty, but we do not so interpret the record. The challenge for cause was properly denied.

Seventh, the prosecutor did inject remarks in the nature of argument in his opening statement to the jury, but the court at once gave a proper admonition to the jury. In view of the trial judge’s unquestioned discretion in supervising the conduct of counsel, we find no abuse of that discretion in his denial of a mistrial.

Eighth, during the penalty phase of the trial the prosecutor requested that a personal note on an exhibit be removed before the jury saw the exhibit, but that request was denied. It is now argued that even the prosecutor’s request called for a mistrial, because the ordinary rules of evidence do not apply to a defendant’s presentation of mitigating proof. That statement is somewhat too broad, but in any event the incident was so decidedly trivial as not to require a mistrial.

Finally, it is argued that upon comparing this case with other capital cases we should reduce the penalty to a life sentence without parole. When we consider that in a period of two days Rector killed one man, for which he was convicted of murder, committed aggravated assaults upon two others, and then deliberately shot a police officer who had done nothing to provoke an attack, we find nothing arbitrary in this death sentence as compared to our other cases.

Counsel insist, however, that because Rector’s self-inflicted brain injury had substantially the same effect as a frontal lobotomy, causing him to be mildly retarded mentally and to be somewhat unemotional, the State of Arkansas should not permit the execution of a person in that condition. This case differs, however, from Giles v. State, 261 Ark. 413, 549 S.W.2d 479 (1977), cert. denied 434 U.S. 894, in that there the jury arbitrarily disregarded an impaired mental condition that existed when the crime was committed, which led us to reduce the sentence. Here Rector had no such mental impairment until he attempted suicide after the crime — facts that were before the jury. In our opinion such circumstances arising after the crime affect the matter of clemency and should properly be addressed to the Governor, who has the facilities for investigating all the facts. Although we may reduce a death sentence to life without parole, and have done so in the past, that action is taken as a matter of law, not as an act of clemency.

We find no prejudicial error in the contentions that are made for reversal or in any other matters that have been brought to our attention under Rule 11 (f).

Affirmed.

Purtle, J., concurs.

John I. Purtle, Justice,

concurring. I concur in the results of the opinion of this court but wish to comment on a portion of the opinion dealing with death qualified juries. The majority correctly states that persons who are unalterably opposed to the imposition of the death penalty should be excluded and I agree. I think Witherspoon is in accord with this view. The mistake made in some trial courts is in excluding persons who have moral or religious scruples against the death penalty but who would agree to impose it if the law and the circumstances warrant it in the case being tried. Witherspoon never intended to exclude this type juror. Neither did it indicate that only those who favored the death penalty should comprise trial juries. I think the correct procedure on this controversial issue lies somewhere between excluding prospective jurors who have scruples against the death sentence and including only those who have no scruples against imposing such a penalty. There is a readily apparent difference in the probable verdict of a jury composed of 12 people having scruples against the death penalty and 12 others who unquestionably favor it. It takes a mixing from both categories to form a jury which is representative of the community. Only those unalterably opposed to the death penalty and those who actively support it should be excluded from serving when death is the possible penalty.

I have never thought that all or even most people who favor the death penalty are barbarians in modern society. However, I do feel that a j ury composed of only such persons is not representative of any community. Neither would a jury composed only of those having scruples against the death penalty represent the community. The selection of jurors should not favor the accused nor should it favor the state. A properly selected jury enters upon its duties slanted toward neither side. Thus selected, it would not be proper to refer to the jury as a death qualified one. This controversy would disappear if the sentencing process utilized a different jury from the one which decided the question of guilt. This could be accomplished by either having a second jury or allowing the trial court to impose sentence. A second jury would be asked to consider aggravating and mitigating circumstances and vote on sentencing the person found guilty. In either event the law and our procedure would have to be amended to provide for such a process. Appellant’s trial was conducted in accordance with present law and procedure.

The majority states the most cowardly and contemptible criminals are the ones who seek to prevent a death qualified jury. I am of the opinion that an accused is not considered to be a criminal, at least in the case being tried, until after he has been convicted. The right to an impartial jury as guaranteed by the Sixth Amendment to the United States Constitution is not, in my opinion, a favored position not enjoyed by others. Everyone is entitled to the protection of our Constitution.


source: Caselaw Access Project

author: John I. Purtle, Justice. Steele Hays, Justice,

license: Public Domain

text:
    TIFFANY’S RESTAURANTS, INC. d/b/a TGI FRIDAYS RESTAURANT v. The CITY OF LITTLE ROCK, Arkansas & Charles D. RAGLAND, Commissioner of Revenues, Department of Finance & Administration, State of Arkansas
    83-106
    658 S.W.2d 394
    Supreme Court of Arkansas
    Opinion delivered October 17, 1983

      Wright, Lindsey & Jennings, for appellant.

      Timothy J. Leathers, Joseph V. Svoboda, Wayne Zakrzewski, Kelly S. Jennings, Ann Fuchs, Joe Morphew, and Mike Munns, by: John Theis, for appellee Department of Finance and Administration.

      R. Jack Magruder, City Atty., by: Carolyn B. Wither-spoon, Asst. City Atty., for appellee City of Little Rock.
   John I. Purtle, Justice.

This is a class action suit brought by appellant and those similarly situated challenging the past practice of the City of Little Rock and the state imposing a ten percent supplemental tax on gross receipts from the sale of wines by a retailer holding both wine and mixed drink permits. Trial in the lower court was on stipulations, documentary evidence and arguments. No testimony was taken. The chancellor found that the state and city could each impose the ten percent supplemental tax on wine sold by retailers holding both wine and mixed drink permits. The case comes before us under Supreme Court Rule 29 (1) (c) involving the validity, interpretation, construction and constitutionality of an act of the Arkansas General Assembly. We reverse the lower court’s decision and remand.

On appeal the appellant argues three points: 1) that foreign wine is not included within the term “alcoholic beverages”; 2) that a wine permit holder is allowed to sell all wines without paying the supplemental tax, and; 3) that classifying foreign and domestic wine differently for taxing purposes is unconstitutional.

The appellant held a wine permit pursuant to Act 120 of 1965 (Ark. Stat. Ann. §§ 48-626, et seq. [Repl. 1977]), as well as a mixed drink permit pursuant to Act 132 of 1969 (Ark. Stat. Ann. §§ 48-1401, et seq. [Supp. 1983]). The “Mixed Drink Act” (Act 132 of 1969) authorized sale of mixed drinks; authorized a supplemental gross receipts tax of ten percent to be levied by the state, and gave cities, towns and counties the right to levy an additional supplemental tax or fee. The application of the “Mixed Drink Act” to sales of wine was not commenced by taxing authorities until 1979.

The issues presented are of statutory construction and constitutionality of an act of the Arkansas General Assembly. Ark. Stat. Ann. § 48-1402 (c) (Act 132 of 1969) provides: “‘alcoholic beverages’ means all intoxicating liquors of any sort, other than beer and native wine . . .”

Ark. Stat. Ann. § 48-626 (b) defines wine by saying:

“Wine” or “wines” shall mean any port wine, sherry wine, vermouth wine or other wines, the alcoholic content of which does not exceed fourteen percent (14%), regardless of whether such wines are manufactured within or without the State of Arkansas.

Ark. Stat. Ann. § 48-1417 states:

Any permit to sell alcoholic beverages for on-premises consumption shall include authority to sell... native and imported wine by the drink. Provided, however, that nothing in this act shall repeal Act 120 of 1965 regarding the licensing of restaurants to sell native wines as authorized in said Act, it being the intent hereof that a permit issued under this Act for sale of alcoholic beverages for on-premises consumption shall include authority to sell native or imported wines by the drink on the licensed premises, but any restaurant . . . may obtain a license under Act 120 of 1965 to sell native wines as authorized therein.

Ark. Stat. Ann. §§ 48-1408 and 1409 provide that the gross receipts tax applies to the sale of alcoholic beverages, and additionally, cities, towns and counties are allowed to collect a supplemental tax of ten percent on the sale of alcoholic beverages for on-premises consumption pursuant to a mixed drink permit.

Prior to 1979 the city and state interpreted the “Mixed Drink Act” to exclude wine if sold pursuant to a wine permit. In 1979 the city changed its stand to agree with the present holding of the trial court. The state followed suit in collecting the supplemental tax in 1982. Both here argue that foreign wine is subject to the additional tax because it is included in the term “alcoholic beverages”.

We do not agree with appellant’s argument that foreign wines are not included within the meaning of “alcoholic beverages” as stated in Ark. Stat. Ann. § 48-1402 (c). The language is set out previously; it is obvious that the term embraces all intoxicating liquors of any sort except beer and native wine. We adhere to our statement in Vault v. Adkisson, 254 Ark. 75, 491 S.W.2d 609 (1973), where we stated:

The meaning of a statute must be determined from the natural and obvious import of the language used by the legislature without resorting to subtle and forced construction for the purpose of limiting or extending the meaning. (Black v. Cockrell, 259 Ark. 367, 389 S.W.2d 881 [1965])

We see no need to pursue this argument further because the meaning is clear from the words used in the statutes.

Secondly, it is argued that the trial court incorrectly held that sales of foreign wines were subject to the supplemental taxes even if the seller held a wine permit. We agree with appellant’s argument. It is undisputed that the holder of a wine only permit is allowed to sell both foreign and domestic wines. When a wine permit holder also obtains a mixed drink permit the city and state contend the foreign wine is sold pursuant to the mixed drink permit rather than the wine permit. We have many times held that when construing a statute imposing a tax, any doubt regarding its imposition should be resolved in favor of the taxpayer and against the taxing authority. Gaddy v. D.L.M., Inc., 271 Ark. 311, 609 S.W.2d 6 (1980). The expressed intent to impose a tax must be so clear that no reasonable mind could conclude otherwise. Cook v. Southwest Hotels, Inc., 213 Ark. 140, 209 S.W.2d 469 (1948). In the case before us the statutes had been interpreted as the appellant argues for many years before it was decided that another interpretation was in order. The attorney general interpreted the statutes both ways. Reasonable minds could not necessarily conclude that the supplemental taxes were in order.

It is clear that a licensee holding a wine permit may sell both domestic and foreign wine. It is also clear that the holder of a mixed drink permit may sell alcoholic beverages, including non-domestic wine. Thus, foreign wine may be sold pursuant to either permit. Therefore, if a licensee holds both permits he may sell all wine pursuant to his wine permit. He is then being treated the same as wine only licensees with respect to sales of wine and the taxes thereon.

In view of our holding in this case, it is not necessary to address the argument that the method of taxation being utilized by the city and state is unconstitutional.

Reversed and remanded.

George Rose Smith and Hays, JJ., dissent.

Steele Hays, Justice,

dissenting. I believe the Chancellor was correct in holding that foreign wines are included in the definition of alcoholic beverages and, hence, subject to the 10% supplemental gross receipts tax in the Mixed Drink Act of 1969.

In 1965 the legislature passed Act 120, permitting the sale of native wines under certain conditions. Native wines were carefully defined as having no more than 14% alcohol and made in Arkansas from grapes or other fruits and vegetables grown in Arkansas.

Next, the Mixed Drink Act of 1969 [Act 132] was enacted which subjected all alcoholic beverages except beer and native wine to the supplemental sales tax imposed under Section 8 of the act.

Then, in 1971, Act 441 was passed which included amendments to Act 120 of 1965, one of which defined wine as not more than 14% alcohol “regardless of whether such wines are manufactured within or without the State of Arkansas.” The stated purpose of Act 441 was to promote Arkansas wineries and tourism by permitting the transportation of limited quantities of wines through dry counties of the state by tourists without their being in violation of laws and regulations restricting such transportation. Nothing in the act suggests it was intended to affect the Mixed Drink Act by altering the definition of alcoholic beverages.

A very similar statutory process was examined in Bolar v. Cavaness, 271 Ark. 69, 607 S.W.2d 367 (1980), where we held that where a provision of an existing statute is specifically adopted by a later statute, as distinguished from adopting the law generally in force on that subject, the operation of the later statute will not be affected by the still later repeal of the original statute. Thus, if statute A is specifically adopted in part by statute B, without an adoption of the general law on the subject, the subsequent repeal of statute A does not change statute B.

To analogize, statute A [Act 120 of 1965] permitted the limited sale of native wine; statute B [Act 132 of 1969] granted local option for the sale of all alcoholic beverages except beer and native wines, subject to a supplemental 10% sales tax; statute C [Act 441 of 1971] permitted the transportation of wines in Arkansas which would otherwise be illegal and amended statute A to make all wines subject to statute C. Under the reasoning of Bolar v. Cavaness, the enactment of statute C does not operate to take foreign wines outside the effect of statute B.

George Rose Smith, J., joins in this dissent.

       Act 844 of 1983 has removed all wines from the supplemental provisions of the “Mixed Drink Act.”


author: Robert H. Dudley, Justice. Richard B. Adkisson, Chief Justice, Frank Holt, Justice,

text:
    DONREY COMMUNICATIONS CO., INC. (Formerly American Television Co., Inc., d/b/a Donrey Outdoor Advertising Co.) v. CITY OF FAYETTEVILLE, Arkansas
    83-67
    660 S.W.2d 900
    Supreme Court of Arkansas
    Opinion delivered October 17, 1983
    [Opinion Amended on Denial of Rehearing December 19, 1983.]

      Cypert ir Roy, by: Michael H. Mashburn, and Donrey Media Group, by: George O. Kleier and Richard F. Cooper, for appellant.

      James N. McCord, City Atty., for appellee.
   Robert H. Dudley, Justice.

Appellant, Donrey Communications Company, Inc., maintains sixty billboards for commercial advertising and noncommercial messages within the City of Fayetteville. They are “off-site signs” as the advertising or message on each billboard is about something not sold or offered on the land where the billboards are located. They consist of “standard poster panels” which are twelve feet by twenty-five feet, or 300 square feet, and “painted bulletins” which are fourteen feet by forty-eight feet, or 672 square feet. Two Fayetteville ordinances restrict the size and location of appellant’s billboards. One is a zoning ordinance and the other is a comprehensive sign ordinance.

The zoning ordinance, No. 1747, enacted in 1970, limits the location of billboards to property zoned C-2. Most of appellant’s billboards are located on property zoned C-2, or thoroughfare commercial district, and a few are located on property zoned C-3, central business district, or 1-1, light industrial and heavy commercial district.

The comprehensive sign ordinance, No. 1893, restricts the size of both on-site and off-site freestanding signs to a maximum of 75 square feet and prescribes minimum setback requirements from street right-of-way for the signs. Appellant’s billboards conform neither to the size restrictions nor to the setback requirements. Its billboards were erected from 12 to 24 years ago at a cost of $500 to $1,000 per sign and, at the time of erection, complied with all applicable ordinances.

Section 17B-5 (A) 2 of the sign ordinance provides that off-site nonconforming signs shall be removed or shall be altered to conform with the provisions of the ordinance by January 19, 1977, which was four years’ amortization from the effective date of the ordinance. The zoning ordinance, in Art. 4, § 5 (g), requires that nonconforming signs be removed by the same date.

This case was filed July 2, 1971, over twelve years ago, and came to this court in 1973. American Television Co., Inc., d/b/a Donrey Outdoor Advertising Co. et al v. City of Fayetteville, 253 Ark. 760, 489 S.W.2d 754 (1973). It was reversed, and the pleadings were amended to test the constitutionality of the city’s restrictions of the size and location of billboards. On cross-motions for summary judgment the trial court upheld the billboard restrictions and amortization requirement, as applied to appellant, and granted the city’s prayer for a mandatory injunction ordering appellant to comply with the two ordinances. We affirm the decree. Rule 29 (1) (c) provides that the appeal of cases testing the constitutionality of a municipal ordinance shall be heard in this court.

Appellant first contends that, when read together, the two ordinances violate appellant’s right under the First Amendment to the United States Constitution.

Billboards are noncommunicative structures designed to stand out and apart from their surroundings, but also they are a medium of communication warranting First Amendment protection. The government has a legitimate interest in controlling the non-communicative aspects of the medium but the First and Fourteenth Amendments foreclose a similar interest in controlling the communicative aspects. Metromedia, Inc. v. San Diego, 453 U.S. 490 (1981).

Alexander Meiklejohn in Free Speech and Its Relation to Self-Government 27 (1948) wrote that the First Amendment “does not forbid the abridging of speech. But... it does forbid the abridging of the freedom of speech.” He argues that the phrase “the freedom of speech” implies rules regarding procedure, or order. He used the New England town meeting as his model to demonstrate there could be no freedom of speech if everyone spoke at once but, at the same time, any argument relevant to the issue before the meeting, no matter how unpopular, is protected by the strong language of the amendment. In this context the Supreme Court of the United States has ruled that restrictions on time, place and manner are permissible if “they are justified without reference to the content of the regulated speech, . . . serve a significant governmental interest, and ... leave open ample alternative channels for communication of the information.” Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748 at 771 (1976).

“The freedom of speech” is not a self-defining phrase. The speech which cannot be abridged is that which is protected. Nor is the word “abridging” unambiguous. What is protected and how extensively it is protected is determined on a case by case basis by the courts. See Wellington, On Freedom of Expression, 88 Yale L. J. 1105 (1979).

The ordinances, as applied to appellant, its advertisers and the viewers of the billboards are content neutral; they merely restrict their size, height and location. The ordinances seek to implement a substantial governmental interest and they directly advance that interest. See Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980) and Metromedia, Inc. v. San Diego, 453 U.S. 490 (1981).

The preamble to the sign ordinance provides that the purpose of the ordinance is to promote the reasonable, orderly and effective display of signs, to promote safety and to preserve natural beauty. The city board of directors made the following findings:

That the uncontrolled proliferation of signs is hazardous to the users of streets and highways within the limits of the city of Fayetteville, Arkansas.
That a large and increasing number of tourists have been visiting the City of Fayetteville, Arkansas, and as a result the tourist industry is a direct source of income for citizens of said city, with an increasing number of persons directly or indirectly dependent upon the tourist industry for their livelihood.
Scenic resources are distributed throughout the city, and have contributed greatly to its economic development, by attracting tourists, permanent and part-time residents, and new industries and cultural facilities.
The scattering of signs throughout the city is detrimental to the preservation of those scenic resources, and so to the economic base of the city, and is also not an effective method of providing information to tourists about available facilities.

The goals which the city seeks to further are substantial governmental goals. This matter was laid to rest in Metro-media, id., at 507, 508.

Nor can there be substantial doubt that the twin goals that the ordinance seeks to further — traffic safety and the appearance of the city — are substantial governmental goals. It is far too late to contend otherwise with respect to either traffic safety, Railway Express Agency, Inc. v. New York, 336 U.S. 106, 93 L.Ed. 533, 69 S. Ct. 463 (1949), or esthetics, see Penn Central Transportation Co. v. New York City, 438 U.S. 104, 57 L.Ed.2d 631, 98 S. Ct. 2646 (1978); Village of Belle Terre v. Boraas, 416 U.S. 1, 39 L.Ed.2d 797, 94 S. Ct. 1536 (1974); Berman v. Parker, 348 U.S. 26, 33, 99 L.Ed. 27, 75 S. Ct. 98 (1954).

Hand in hand with aesthetics is tourism, one of Fayetteville’s important industries and a substantial economic resource.

The ordinances under attack are as narrowly drawn as is practically and legally possible and the city has gone no further than necessary to meet its goals. This type of ordinance directly advances the legitimate governmental interests in traffic safety, the aesthetic landscape and the tourism industry. See Metromedia, Inc. v. San Diego, id., pp. 508, 509, 510 and 511.

The next First Amendment issue is, do the restrictions close a channel for communication? Initially, we note that this is not one of those cases where a channel of communication is completely prohibited in the name of some governmental purpose, such as prohibiting the circulation of handbills under the rationale of preventing litter. See Schneider v. State, 308 U.S. 147 (1939). Here, the billboard channel of communication is not prohibited, it is only limited as to size and place. The only questionable aspect of the limitaiton in size is that advertisements or messages which are prepared for nationwide and statewide distribution are prepared for the 300 square feet standard poster panels and they will be eliminated. The use of the standard poster panel allows an inexpensive form of communication. However, the appellant has not demonstrated that the size cannot be reduced to 75 square feet without unduly increasing the cost of this channel. The affidavit of Lloyd E. Schuh, Jr. is explanative:

I develop and contract for all advertising by Educare Centers. Educare Centers has used standardized outdoor advertising poster panels on a regular basis since 1973. We now have 12-month contracts for outdoor advertising on standardized poster panels in all three cities where we operate.
Educare Centers currently has its advertisements on 10 poster panels in Little Rock, 6 poster panels in Fort Smith and 1 poster panel in Fayetteville. I design seven different advertisements and have 20 copies made of each design. All 17 poster panels, including the one in Fayetteville, will carry identical advertisements with the seven designs being rotated during the year.
By having 20 copies of each design printed, the average poster cost is $35.00. If I were forced to order single copies of each design in an oddball size for Fayetteville it would incresae the cost of those copies by nearly 50%.

Increasing the average poster cost by 50%, or from $35 to $52.50, would not eliminate billboards as a channel of communication; it could only moderately affect the cost. The law is settled that “a municipality may enforce a rule that curtails the effectiveness of a particular means of communication.” Metromedia, Inc. v. San Diego, id., at 550.

Similarly, in Yarbrough v. Arkansas State Highway Comm’n, 260 Ark. 161, 539 S.W.2d 419 (1976), we rejected appellant’s contention that the Highway Beautification Act, Ark. Stat. Ann. § 76-2501, et seq., deprived him of his right to advertise. We stated:

We find that he has not been denied the right to advertise, but the right has been limited by valid restrictions----Furthermore, appellants had no vested right to capitalize on the flow of traffic over Interstate 40.

Appellant makes an economic, or loss of income, argument but we decline to adopt that approach to the First Amendment. The First Amendment affords less protection to the medium than the message. See Kaufman, The Medium, The Message And The First Amendment, 45 N.Y.U. L. Rev. 761 (1970). We find the ordinances do not violate appellant’s First Amendment rights.

Appellant’s next point of appeal is that the trial court erred in granting a summary judgment in favor of the City and erred in refusing to grant summary j udgment in its favor because (a) legislation which prohibits a lawful business is unreasonable as a matter of law, and (b) the declared purpose of the ordinance has no substantial connection with the real purpose.

Ordinances limiting the right to maintain billboards are not unreasonable as a matter of law. In Board of Adjustment of Fayetteville v. Osage Oil & Transportation, Inc., 258 Ark. 91, 522 S.W.2d 836 at 838 (1975), we stated:

The outdoor advertising sign ... is not maintainable as a matter of right; such signs have been prohibited altogether. See the extended discussion in General Outdoor Advertising Co. v. Dept. of Public Works, 289 Mass. 149, 193 N.E. 799 (1935).

Appellant also contends a genuine dispute exists over a material fact because the declared purpose is not related to the restrictions on the size and location of the billboards. This same argument was made and rejected in Metromedia, Inc. v. City of San Diego, supra. In Board of Adjustment of Fayetteville v. Osage Oil & Transportation, Inc., supra, we stated:

The basic power of a municipality to regulate the size and location of billboards and other commercial signs has been sustained in so many jurisdictions that it would be a waste of time and effort to cite the cases. Such regulations have been upheld upon many grounds, including the promotion of traffic safety, the control of potentially hazardous structures, and the fundamental considerations of city planning and city beautification that underlie the zoning concept itself.

Appellant points out that billboards are prohibited in districts zoned commercial and industrial but the following businesses are permitted there: dance halls, taverns, truck repair and service establishments, drag strips, meat slaughtering, auto salvage, junk yards, scrap metal, stockyards and wrecking and demolition services. From that, appellant contends that the zoning ordinance bears no reasonable relationship to aesthetic considerations and, consequently, summary judgment should have been granted to appellant as a matter of law.

Perhaps dance halls, taverns, truck repair establishments, etc., arguably can be said to be ugly, but it does not follow that these businesses cannot be carried on among more pleasant surroundings. The city board obviously concluded that the appearance of the commercial and industrial districts would be aesthetically enhanced by the elimination of billboards. The ordinance bears a reasonable relationship to aesthetic considerations and is a direct approach to solving the problems created by the billboards.

Many courts have rejected the argument that it is unreasonable to prohibit billboards in commercial and industrial areas of little, if any, natural beauty. E. B. Elliott Advertising Co. v. Metropolitan Dade County, 425 F.2d 1141 (5th Cir. 1970); John Donnelly & Sons, Inc. v. Outdoor Advertising Board, 339 N.E.2d 709 (Mass. 1975); John Donnelly & Sons v. Campbell, 639 F.2d 6 (1st Cir. 1980); Metromedia Inc. v. City of San Diego, 610 P.2d 407 (Cal. 1980), rev. in part 453 U.S. 490 (1981) and Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981).

We affirm the granting of summary judgment in favor of the city and we affirm the denial of summary judgment in favor of appellant.

The appellant next contends that the chancellor erred in not finding that the sign ordinance and zoning ordinances in their amortization provisions amounted to a public taking of private property in violation of Art. 2 § 22, of the Constitution of Arkansas.

In two recent cases we held a similar amortization provision, as applied, was not a public taking of private property without just compensation. In fact, those cases dealt with the same ordinance, No. 1893, before the amendment. City of Fayetteville v. McIlroy Bank & Trust Co. et al, 278 Ark. 500, 647 S.W.2d 439 (1983); Hatfield v. City of Fayetteville, 278 Ark. 544, 647 S.W.2d 450 (1983); see also Gitelman, Signs of the Times in Arkansas, 1983 Ark. Law Notes 91.

The test to be used in determining whether an amortization requirement is constitutional is the test of reasonableness. City of Fayetteville v. McIlroy Bank & Trust Co., supra. Appellant’s sixty billboards were constructed from twelve to twenty-four years ago at a cost of $500 to $ 1,000 per sign. On the facts of this case the four year amortization period was fair. In addition, this litigation has prolonged appellant’s signs by another six years.

Appellant additionally contends that, aside from the loss of its billboards, the ordinances constitute a public taking because they may render its business, as heretofore conducted, unprofitable. The argument is not convincing. There is no reason to treat the loss of a profit generated by a competitive monopoly on nonconforming billboards any differently than we treat the loss of the asset. The principle of amortization rests on the reasonable exercise of the police power, and the financial detriment imposed upon a property owner by the reasonable exercise of police power does not constitute the taking of private property within the inhibition of the constitution.

Appellant’s final point is that the Arkansas Highway Beautification Act, Ark. Stat. Ann. § 76-2501, et seq., precludes the city from requiring the uncompensated removal of its billboards which are adjacent to federal aid highways. The act was adopted to provide effective control of outdoor advertising within 660 feet of federal aid highways and to conform with the Federal Highway Beautification Act of 1975, as amended, 25 U.S.C. § 131. A 1981 amendment to the Arkansas act provides that no municipality shall remove any outdoor advertising without paying just compensation, Ark. Stat. Ann. § 76-2508. Appellant contends that the city ordinances allow the taking of its billboards without paying just compensation and therefore they are in contravention of the state law. It concludes that such contraventions violate Art. 12 § 4 of the Constitution of Arkansas: “No municipal corporation shall be authorized to pass any law contrary to the general laws of the state

However, long before the 1981 amendment to the Arkansas act became effective, the municipal ordinances had already mandated that appellant’s signs be altered or removed. The amortized life of the signs had ended on January 19, 1977. Appellant would have us apply the 1981 amendment retroactively in order to give new life to its signs. Like the Supreme Court of Washington, we decline to retroactively apply such a provision. Ackerley Communication v. City of Seattle, 602 P.2d 1177 at 1186 (Wash. 1979). Without retroactive application of the act, the ordinances are not in contravention of state law.

Affirmed.

Hickman, J., concurs, still maintaining view expressed in City of Fayetteville v. S & H, Inc., 261 Ark. 148, 547 S.W.2d 94 (1977).

Adkisson, C.J., Holt and Purtle, JJ., dissent.

Richard B. Adkisson, Chief Justice,

dissenting. It is my view that the amortization provisions of the sign and zone ordinances constitute a public taking of private property in violation of Ark. Const, art. 1, § 22.

A four year amortization period for a sign constructed of concrete or steel seems unreasonable. The anticipated useful life at the time of construction would clearly be in excess of four years as evidenced by the fact that all of the sixty signs are from twelve to twenty-four years old.

I would alsp disagree with the majority in their holding that the cost of the sign, standing alone, is sufficient evidence of its value.

Further, I cannot agree with the majority’s suggestion that the fact that this case has been in litigation for some years has some effect on the fair market value of the signs.

Purtle, J., joins in this dissent.

Frank Holt, Justice,

dissenting. I would reverse based upon the reasons expressed in my dissent in City of Fayetteville v. McIlroy Bank & Trust Co. et al, 278 Ark. 500, 647 S.W.2d 439 (1983).

Purtle, J., joins in this dissent.


author: Robert H. Dudley, Justice. Steele Hays, Justice,

text:
    WASP OIL, INC. and John F. BROWN v. ARKANSAS OIL AND GAS, INC., Art CROWELL, Connie CROWELL, TEXAS OIL AND GAS CORP., and Dale S. BRADEN
    83-93
    658 S.W.2d 397
    Supreme Court of Arkansas
    Opinion delivered October 17, 1983

      Warner ir Smith, for appellants.

      Laws ir Swain, P.A., by: Bruce Wolitarsky and Tom Donovan, for appellees.
   Robert H. Dudley, Justice.

This case began as a simple quiet title action but, before completion, constituted a multi-party action involving not only the quiet title action but also a defamation action arising out of the disputed title. In accordance with one of the tenets of the Arkansas Rules of Civil Procedure, the trial judge allowed a third party plaintiff to enter and a third party defendant to be brought in and then tried the related cases at one time. We affirm on all issues except for the proof of damages for defamation. Jurisdiction is before this Court as the case presents issues involving oil, gas and mineral rights, Rule 29 (1) (n), and because it involves a question in the law of torts, Rule 29 (1) (o).

Wasp Oil, Inc., the original plaintiff, and now one of the appellants, contends that the trial court erred in refusing to quiet its title to an oil and gas lease. On February 26,1981, the landowners, the Crowells, executed an oil and gas lease to Wasp Oil. Unfortunately, at that time, Wasp Oil did not file the lease for record. On April 10, 1981, the landowners executed another oil and gas lease involving the same land but this lease was to Arkansas Oil and Gas, Inc. On that same day, April 10, 1981, Arkansas Oil assigned its lease to Texas Oil and Gas Corporation. On April 23, 1981, Arkansas Oil filed its lease for record. The practice of the recorder was to place leases in the record book by the use of a photocopy system. There is substantial evidence that on April 23 the recorder photocopied only the front and not the back of the lease to Arkansas Oil. The acknowledgement is on the back of the page and therefore was not originally photocopied. On May 20, 1981, Arkansas Oil’s assignment to Texas Oil was recorded. It was not until June 1,1981, that the plaintiff, Wasp Oil, filed for record its lease which was, in fact, the first one executed.

Wasp Oil contends that the Arkansas Oil lease should be removed as a cloud on its title because at the time Arkansas Oil took its lease, its chief executive officer, Dale Braden, had actual knowledge of Wasp Oil’s original lease. Although there is substantial evidence that neither Arkansas Oil nor Dale Braden had actual knowledge of the Wasp Oil lease, the argument is moot because the evidence clearly establishes that Texas Oil was an innocent purchaser without notice of the original unrecorded lease. An innocent purchaser is not chargeable with constructive notice of an unrecorded instrument. Moore v. Morris, 118 Ark. 516, 177 S.W. 6 (1915). Of course, one who purchases with actual knowledge of a prior unrecorded lease, or with information which would naturally suggest inquiry and lead to such knowledge, is not an innocent purchaser. Love v. Bryson, 57 Ark. 589, 22 S.W. 341 (1893). Here there is no proof that Texas Oil had any information which would suggest an inquiry.

Appellant Wasp Oil next contends that Dale Braden’s alleged actual knowledge should be imputed to Texas Oil on the basis that Braden was the agent of Texas Oil. We quickly dispose of the contention as the proof is unequivocal that Braden was an independent broker dealing in oil and gas leases.

Appellant Wasp Oil argues that the chancellor erred in refusing to strike the Arkansas Oil lease from the record book since the lease, as originally photocopied, did not contain an acknowledgement. Obviously, if Arkansas Oil’s lease is struck from the record book then Wasp Oil’s lease would advance to the status of the first recorded lease. We reject that argument. The lease to Arkansas Oil was properly acknowledged, and because it was properly acknowledged, it was subject to recording. Ark. Stat. Ann. § 16-101 (Repl. 1979). It was the duty of the recorder to properly record it. Ark. Stat. Ann. § 16-105 (Repl. 1979). The fact that the recorder failed to record the acknowledgement is not a valid reason to strike the instrument from the record book. When a properly executed and acknowledged lease is filed for recording, it protects the parties to the lease against intervening rights of third parties even though it is not properly recorded. Ark. Stat. Ann. § 16-114 (Repl. 1979); Rowland v. Griffin, 179 Ark. 421, 16 S.W.2d 457 (1929).

The chancellor’s rulings with regard to the petition to quiet title are affirmed.

A counterclaim and third party complaints alleging defamation were also filed. Appellant John F. Brown, the third party defendant below, contends that the trial court erred in refusing to dismiss him from the third party complaints for defamation. He advances the proposition that a defamation action may be brought only in the county in which the defendant, or one of several defendants, resides or is summoned. Ark. Stat. Ann. § 27-613 (Repl. 1979). See Robinson v. Missouri Pacific Transportation Co., 218 Ark. 390, 236 S.W.2d 575 (1951). His argument seems enhanced, at first glance, by the stricture of the Rules of Civil Procedure that the rules do not extend jurisdiction or venue. ARCP Rule 82. Appellant contends that he was a resident of Sebastian County and could not properly be made to answer a defamation action pending in Yell County. Again, we affirm the trial court.

The procedure can be conceptualized in three tiers. The first tier is the complaint of plaintiff Wasp Oil, Inc., against Arkansas Oil and Gas, Inc., the landowners named Crowell, and Texas Oil and Gas Corporation. The complaint to quiet title was local in nature and Wasp properly filed the action in the county where the land was located. Ark. Stat. Ann. § 27-601 (Repl. 1979). See Fidelity Mortgage Co. v. Evans, 168 Ark. 459, 270 S.W. 624 (1925).

The second tier is the counterclaim and third party complaint for defamation filed by Arkansas Oil against Wasp Oil and its president, John F. Brown. Both Wasp and Brown reside in Sebastian County. The alleged defamation arises directly from the leasing transactions and a logical relationship exists between the complaint, the counterclaim and the third party complaint. Much of the evidence is applicable to both actions. The trial judge was correct in holding the counterclaim was compulsory. Venue of the counterclaim against Wasp was fixed by Wasp’s filing of the original suit. ARCP Rule 13 (a). The venue statute, Ark. Stat. Ann. § 27-613 (Repl. 1979), does not purport to fix venue for a compulsory counterclaim. See B-W Acceptance Corp. v. Colvin, 252 Ark. 306, 478 S.W.2d 755 (1972) (involving a comparable earlier statute). Arkansas Oil, in the same pleading and stating the same cause of action, made John F. Brown, the president of Wasp Oil, a party to the proceeding. Such joinder is authorized under ARCP Rule 13 (g) and ARCP Rule 20 (a). The issue becomes whether Wasp’s waiver of venue as to the counterclaim by filing the original action will carry over to cover third parties joined to the counterclaim. This requires an examination of ARCP Rule 13 (g).

Joinder of Additional Parties. Persons other than those made parties to the original action may be made parties to a counterclaim or cross-claim in accordance with the provisions of Rules 19 and 20.

ARCP Rule 13 (g) contemplates joinder under either Rule 19 or 20. The notes following Rule 19 state that Ark. Stat. Ann. § 27-615 (Repl. 1962) remains unaffected by the rules. However, since the counterclaim was compulsory, the principle of ancillary jurisdiction extends to the additional party. Further, the provision in Rule 13 (a) which excludes from its definition of compulsory counterclaim those which require for the adjudication “the presence of third parties of whom the court cannot acquire jurisdiction” does not compel a different result. This restriction is limited to cases of inability to obtain personal jurisdiction over the additional defendant and is not a matter of venue. Basic considerations of fairness dictate that the potential parties cannot be forced to enter litigation without service of process upon them and the compulsory counterclaim rule is limited to permit this principle. See United Artists v. Masterpiece Productions, 221 F.2d 213 (2d Cir. 1955).

The third tier is the intervention and third party complaint filed by Dale Braden, the president of Arkansas Oil, against Wasp Oil and its president, John Brown. His intervention is permissive. ARCP Rule 24 (b). The intervention was a matter of discretion with the trial judge and the judge did not abuse that discretion. The third party complaint was for relief jointly with Arkansas Oil. It involves the same cause of action, requires most of the same proof, and is interwoven with the counterclaim filed by Arkansas Oil. Braden’s third party complaint and Arkansas Oil’s claim have common questions of law and fact. His joinder as a third party plaintiff was permissive. ARCP Rule 20 (a). Jurisprudentially, since the jurisdiction of the court over a counterclaim against the plaintiff is not referable to the location or residence of the plaintiff, but rather to its cognizance of the “transaction or occurrence,” there is no basis on which to differentiate between the counterclaim and third persons interested in the transaction or occurrence. The Second Circuit Court of Appeals, with Learned Hand sitting on the panel, termed this “ancillary jurisdiction” and reasoned that ancillary jurisdiction does not require independent grounds for either jurisdiction or venue. Lesnik v. Public Industrial Co., 144 F.2d 968 (2nd Cir. 1944); contra, King v. Shepherd, 26 F. Supp. 357 (W.D. Ark. 1938). Of course, if the third party complaint was not a bona fide part of the original transaction or occurrence the result would be different.

The trial court correctly refused to dismiss appellant John F. Brown from the third party complaint.

The appellants’ next point is: “The trial court erred in finding the content of the letter of Wasp Oil, Inc. to be libelous as to Dale S. Braden.” The argument begins: “The appellants submit that the third party plaintiff, Dale S. Braden, did not show that the recipients of this letter did or reasonably could have understood the statement to refer to Dale S. Braden.” As can be seen from the above quotations, the standard of defamation by a non-media speaker is not questioned. See KARK-TV v. Simon & Smith, 280 Ark. 228, 656 S.W.2d 702 (1983); Smolla, Intertwining the Constitution and the Common Law: Evolving Doctrines of Defamation in Arkansas, 1983 Arkansas Law Notes 49. The sole question is whether the publication referred to Dale Braden.

The publication in this case is by a letter to the American Bar Association, to the Arkansas Bar Association and to the parties. Dale S. Braden is a lawyer and it is obvious that one purpose of the letter was to complain about him to the professional legal associations. The names and addresses at the top of the letter set out that Dale Braden is president of Arkansas Oil. In addition, the letter specifically refers to Dale Braden. The last paragraphs are as follows:

The conversation, in which Arkansas Oil and Gas Company talked Mr. Crowell into executing this Oil and Gas Lease to them, I believe would constitute fraud, and it is certainly fraud on Mr. Crowell’s part, after having accepted my money, some 13 days later accepting money again.
This letter will serve, as my demand to Texas Oil & Gas Corp., and Arkansas Oil and Gas Company, Dale Braden, as President, to immediately and promptly release any leasehold interest that they may claim to this Oil and Gas Lease executed by Art Crowell, et ux to Arkansas Oil and Gas dated April 10, 1981, for a term of five (5) years, and your failure to do so will result in a lawsuit, and I hope, criminal prosecution of everyone involved.
It is my desire that this is handled immediately for such acts as this is what has discouraged me, and others, the last few years in the oil business. I realize it is a very competitive business, but out and out lying and stealing, I just cannot condone in any way. For all of those who were involved in this little conspiracy to fraud, I want you to know my utter disgust and contempt with you.

To determine if the content of a letter is defamatory about a particular party, the entire letter must be construed. See Skaggs v. Johnson, 105 Ark. 254, 150 S.W. 1036 (1912). We have no hesitancy, when examining the entire letter, in affirming the ruling of the chancellor that the letter referred to Dale Braden. Similarly without merit is appellant’s argument that the letter was not intended as a statement of fact but merely as a comment or opinion.

Appellants’ final point is that Dale Braden’s proof of damages fails to sustain the award of $59,500 in compensatory damages and $50,000 in punitive damages. The argument has merit.

First, we summarily dispose of one of appellants’ arguments.

During oral argument the appellant pointed out that Braden filed his defamation suit in chancery court as third party plaintiff when he could have proceeded initially in circuit court. Then, during oral argument, he assigned as error our rule that one who elects to proceed in equity when he already has an adequate remedy at law, as did Braden, must be held, as a matter of law, to have waived punitive damages. See Stolz v. Franklin, 258 Ark. 999, 531 S.W.2d 1 (1975). We do not consider the argument because, as counsel forthrightly stated, the argument was not presented to the trial court: Assignments of error may not be raised for the first time on appeal. Ferguson v. City of Mountain Pine, 278 Ark. 575, 647 S.W.2d 460 (1983).

On appeal, in reviewing the sufficiency of the evidence to support a verdict by a trial judge, we consider the evidence most favorable to the appellee and affirm unless the judge’s decision is clearly erroneous. ARCP Rule 52; Bachman v. Bachman, 274 Ark. 23, 621 S.W.2d 701 (1981). Using that test, there is sufficient evidence to support the finding that actual malice caused the publication of the defamatory letter. Consequently, the proof submitted on the issue of liability was sufficient to support an award for all damages caused by the defamatory publication as well as all appropriate punitive damages. See KARK-TV v. Simon & Smith, 280 Ark. 228, 656 S.W.2d 702 (1983).

Our general rule is that damages may not be allowed “where they are speculative, resting only upon conjectural evidence or the opinions of the parties or witnesses,” Eagle Properties, Inc. v. West & Co. of Louisiana, 242 Ark. 184, 412 S.W.2d 605 (1967). That rule is a good sense rule and is so applied by this court. There are instances where damages simply cannot be proven with exactness. In that event the rule becomes “when the cause and existence of damages have been established by the evidence, recovery will not be denied merely because the damages cannot be determined with exactness.” See Crow v. Russell, 226 Ark. 121, 289 S.W.2d 195 (1956).

Here, Dale Braden, the third party plaintiff, did not prove, or even attempt to prove, any of those damages which are not required to be proven with exactness, such as mental anguish as a result of the defamation. See KARK-TV v. Simon, supra, and discussion in Gobin v. Globe Publishing Co., 531 P.2d 76 (Kan. 1975). Instead, his evidence on the issue of damages was limited to his loss of income.

Dale Braden, on direct examination, testified that he had the option with Texas Oil of earning either $5 per acre plus a one-sixteenth overriding mineral interest or else a total of $25 per acre. He stated that in 1980 and 1981 he usually gave up the $20 per acre in order to earn the override. He then testified that his overriding one-sixteenth interest in producing wells on 845.7 acres had a value of $334,685.70. However, that figure was not related, in any manner, to the acreage he leased to Texas Oil after the defamatory letter. He gave no testimony of the value of projected value or even a supposition of value of overriding interests acquired after the letter in order for damages to be assessed.

The only detailed testimony of Dale Braden which goes to an exact loss of income is as follows:

Q. Are you claiming to have lost income as a result of this letter of June 5th, 1981?
A. Yes, sir, I am.
Q. Have you reduced that to a specific figure?
A. Well, sir, I’ve attempted to do so using Texas Oil and Gas Assignments, only.
Q. Okay. Let’s take this step at a time.
A. Um huh.
Q. You have attempted to do something with Texas Oil and Gas Assignments, only?
A. That’s true.
Q. Tell me what your process was?
A. I took the total number of net mineral acres that I had assigned to them times five dollars an acre and arrived at a figure up thru June the 9th of 1981.
Q. Did you subtract your cost for acquiring these lease acres from that figure?
A. No, sir, I did not, but neither did I subtract the cost after that period, either. The costs are almost impossible to ascertain.
Q. I understand that Gross Profits are not evidence of loss, that is gross profits, isn’t it?
A. Yes, sir, it is.

The computations discussed were never offered into evidence. No income tax returns, books of account or projection of loss of income was offered.

Braden did testify that he kept an extensive record of his transactions with Texas Oil and that he and his company, Arkansas Oil, together had assigned 5950.92 acres of mineral interest to Texas Oil from February, 1980 to the defamatory letter of June 9, 1981. He testified that a comparable period of time had elapsed from the date of the letter, June 9, 1981, until the date of the trial, November 16,1982, and during the latter period he and his company had assigned only 762.21 acres of mineral interests to Texas Oil, or a net leasing loss of 5188.71 mineral acres. This acreage lease loss, 5188.71, multiplied by the $5 per acre loss testified to by Braden, equals a gross loss of income of $25,943.55, far short of the $59,500 damages awarded by the trial judge.

Proof of the amount of damages was not the only speculative matter. Proof of the cause of the loss of income was also conjectural. Charles Still, a representative of Texas Oil, testified that his company substantially decreased its business with Dale Braden because of seven factors: (1) the letter, (2) this lawsuit, (3) title problems, (4) lack of available leases in Pope County, (5) no desire for leases in Yell County, (6) a company reduction in the use of independent brokers and (7) personality conflicts. His testimony was undisputed. He did not testify which factors were major causes or which were minor causes. It may well be that most of the decrease was due to title problems or to a reduction in the use of independent brokers. The trial court had no way of knowing.

Appellants are liable only for the loss of income caused by the defamatory publication. They are not liable for the loss of income due to this lawsuit, title problems, lack of available leases, no market for leases in Yell County, reduction in the use of independent brokers or personality conflicts.

The amount of the loss of income was not established with any degree of exactness, but even if the trial court could have determined that figure, it could not determine what part of the loss of income was caused solely by the defamatory letter. Yet, that was done and it was done without a finding of facts. Even appellee, Dale Braden, in his brief admits, “It is not clear how the learned chancellor arrived at the figure of $59,500.” The award of $59,500 as loss of income due solely to the defamatory letter is based upon sheer speculation. We reverse the award of compensatory damages.

The award of punitive damages cannot be affirmed without an award of compensatory damages. Winkle v. Grand National Bank, 267 Ark. 123, 601 S.W.2d 559 (1980). Consequently, the court must also be reversed on that issue.

The usual practice is to end a case with only one trial, but that is not imperative, and this court has the power, in furtherance of justice, to remand any case to equity for further proceedings, including hearing additional evidence. Ferguson v. Greene, 266 Ark. 556, 587 S.W.2d 18 (1979). In this case Braden has obviously suffered some damage as a result of the defamation and it would be unjust to reverse and dismiss. Therefore we remand for further proceedings.

Affirmed in part. Reversed and remanded in part.

Adkisson, C.J., and Hickman and Hays, JJ., dissent.

Steele Hays, Justice,

concurring in part, dissenting in part. I agree entirely with the majority opinion down to the final point, i.e., that Braden’s proof of damages fails to sustain the awards of compensatory and punitive damages.

The words written about Braden and his company were actionable per se and, hence, whether Braden’s proof, of pecuniary loss sustained the amount awarded by the trial court is beside the point. In his pleading Braden prayed for the recovery of general damages and the law in this state and in many states, is that libel that is actionable per sc supports a recovery of general damages and is not dependent on proof of special damages. See Dun and Bradstreet, Inc. v. Robinson, 233 Ark. 168, 345 S.W.2d 34 (1961); Taylor v. Gumpert, 96 Ark. 354, 131 S.W. 968 (1910); Lile v. Matthews, 268 Ark. 980, 598 S.W.2d 755 (Ark. App. 1980); Prosser on Torts, p. 754 [4th ed.].

In Dun and Bradstreet v. Robinson we upheld an award of general damages of $30,000 where the defendant innocently but inaccurately published a report to its subscribers that the plaintiff had discontinued business operations. In contrast to the libel in Dun and Bradstreet, we have here a deliberate and calculated attempt to defame and discredit Braden and his company by the appellants. Appellants made a veiled but unmistakable reference to Braden and Arkansas Oil and Gas Company as having practiced “out and out lying and stealing,” as well as conspiracy to defraud. Appellants’ letter was then circulated to several other parties as well as to the American and Arkansas Bar Associations. Finally, and to make certain that no one was overlooked, a copy was spread upon the records of the Recorder of Yell County, Arkansas.

It should be noted that in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), the Supreme Court excised from the common law of defamation what it termed “an oddity of tort law,” the practice of allowing recovery of purportedly compensatory damages without evidence of actual loss, recognizing that under traditional rules pertaining to actions for libel, the existence of injury is presumed from the fact of publication. The court concluded its analysis of First Amendment protections of a free press by requiring that state remedies restrict defamation plaintiffs who do not prove the falsity or reckless disregard for the truth to compensation for actual injury. Gertz, supra at p. 349. Here, while it might well be argued that appellants’ libel brings the case within the stated exception, that need not engage us, as it is plain that the Gertz opinion applies to defamation suits against newspaper publishers and broadcasters, the so-called “media-defendants.” The decision begins with the declaration, “The principal issue in this case is whether a newspaper or broadcaster that publishes defamatory falsehoods about an individual who is neither a public official nor a public figure may claim a constitutional privilege against liability for injury inflicted by those statements.”, Gertz, p. 332, and concludes with:

We hold that, so long as they do not impose liability without fault, the states may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehoods injurious to a private individual. (Gertz, at p. 347) (My emphasis.)

A similar interpretation of the Gertz decision, though evident enough from the opinion itself, has been reached in Schomer v. Smidt, 113 Cal. App. 3d 828, 170 Cal. Rptr. 662 (1980). See also, 25 UCLA L. Rev. 915.

I would affirm the award of compensatory and punitive damages.

Adkisson, C.J., joins in this dissent.


author: Robert H. Dudley, Justice.

text:
    Fabian L. TOMPOS, Jimmy BOYER, Tina HORNBACK, John T. JUSTICE II, Carlon BASSETT and Roger EATON v. CITY OF FAYETTEVILLE, Arkansas, FAYETTEVILLE CITY BOARD OF DIRECTORS, and Bob JONES, Fayetteville Police Chief
    83-105
    658 S.W.2d 404
    Supreme Court of Arkansas
    Opinion delivered October 17, 1983

      Murphy ir Carlisle, by: Marshall N. Carlisle, for appellants.

      James N. McCord, City Atty., for appellees.
   Robert H. Dudley, Justice.

The Board of Directors of the City of Fayetteville enacted an ordinance prohibiting private clubs from serving or allowing consumption of mixed drinks between 2:00 a.m. and 10:00 a.m. The ordinance provides for a fine of up to $500.00 and multiple violations can result in suspension of the club’s license issued by the city. Appellants filed a petition for declaratory judgment asking that the ordinance be declared invalid. On cross-motions for summary judgment the chancellor upheld the validity of the ordinance. We affirm. Jurisdiction is in this court pursuant to Rule 29 (1) (c).

First it is argued that the ordinance is contrary to Ark. Stat. Ann. § 48-203 (h) (Repl. 1977). That statute authorizes the Commissioner of Revenues to fix the hours for the sale of intoxicating liquors. The ordinance at issue is not concerned with retail sales but with consumption on the premises of private clubs. On-premise consumption at private clubs is governed by Ark. Stat. Ann. § 48-1401, et seq. (Repl. 1977 and Supp. 1983). Appellants similarly contend that the penalty provision of the ordinance is in conflict with Ark. Stat. Ann. § 48-901 (Repl. 1977) which provides penalties for the unlawful sale of intoxicants. There is no conflict because the statute describing on-premise consumption at private clubs specifically provides that consumption at a private club is not a sale:

In order to clarify the alcoholic beverage control laws of this State, and to regulate and prohibit the sale of alcoholic beverages in violation of the provisions of this Act [§§ 48-1401 — 48-1418] and other applicable alcoholic beverage control laws of this State, the General Assembly hereby determines that the preparation, mixing and serving of such mixed drinks, beer and wine for consumption only on the premises of a private club as defined in Section 2 (j) [subsection j of § 48-1402] hereof by the members thereof and their guests, and the making of a charge for such services shall not be deemed to be a sale or be in violation of any law of this State prohibiting the manufacture, sale, barter, loan or giving away of intoxicating liquor whenever. [Emphasis added.] Ark. Stat. Ann. § 48-1410 (a) (Repl. 1977).

Appellants next argue the ordinance is contrary to the provisions of Ark. Stat. Ann. § 48-1412 (Repl. 1977). This statute provides the Alcoholic Beverage Control Board with the authority to adopt and enforce reasonable rules and regulations concerning the qualification for permits and the operation of licensed premises. The statute further provides, “Nothing in this Act, however, shall be construed as limiting the power of other proper state or local governmental bodies to regulate the operation of establishments under this Act as may be necessary for the protection of the public health, welfare, safety, and morals.” Specific operating hours for private clubs have never been adopted, either by statute or by regulation. Appellants reason the failure of the Board to adopt closing regulations effectively gives private clubs the right to remain open and serve or permit consumption of alcohol twenty-four hours a day and, consequently, the ordinance is in conflict with the Board’s regulatory authority. The authority is unexercised; it is not in conflict. The ordinance is not contrary to the general law of the state.

Appellants also contend the city was without power to enact the ordinance, citing Yancey v. City of Searcy, 213 Ark. 673, 212 S.W.2d 546 (1948):

... a municipal corporation possesses and can exercise the following powers and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the accomplishment of the declared objects and purposes of the corporation — not simply convenient, but indispensable.

Our cases setting out this restrictive view of municipal power, called Dillon’s Rule, were decided before the passage of the Home Rule Act, Ark. Stat. Ann. §§ 19-1042 — 19-1046 (Repl. 1980 and Supp. 1983). The Home Rule Act defines alcoholic beverages to be a “state affair” and authorizes any city of the first class to “exercise any function or legislative power upon ... state affairs if not in conflict with state law.” Ark. Stat. Ann. § 19-1043 (Supp. 1983). Based upon the Home Rule Act, a city is empowered to enact an ordinance dealing with state affairs so long as the ordinances avoid conflict with state law.

Appellants also contend the state has preempted this field and the ordinance is thus a nullity. The legislature has not preempted the subject, as Ark. Stat. Ann. § 48-1412 (Repl. 1977) provides that nothing therein shall be construed to limit the power of local governmental bodies to regulate the operation of private clubs. The legislature appears to invite, rather than preempt, city legislation in this field.

Appellants contend that the penalty provisions of the ordinance are contrary to the general laws of the state since the ordinance provides for fines and suspension of a club’s license issued by the city. The fines are for violations of the ordinance and the subject matter of that ordinance is not in conflict with the general law. Fines for violation of such ordinances are provided in Ark. Stat. Ann. § 19-2409 (Repl. 1980) and are not contra to the general laws. We do not reach the issue of whether the provision for suspension of the city license is valid because it was not raised below. See Ferguson v. City of Mountain Pine, 278 Ark. 575, 647 S.W.2d 460 (1983).

Appellants argue that the ordinance constitutes an impermissible exercise of the police power. The ordinance recites that “the consumption of alcoholic beverages by patrons of private clubs into the early morning hours increases the likelihood of disturbances and motor vehicle accidents.” No evidence was presented which even tends to indicate that the ordinance was passed for any other reason.

Last, appellants contend that the ordinance violates the First, Fourth, Fifth and Fourteenth Amendments to the Constitution of the United States. Even assuming that private clubs in Fayetteville are formed for the purpose of expressing views relating to self-government, the mere prohibition of the serving of alcohol during the early morning hours violated neither the freedom to associate nor the freedom of expression.

Affirmed.


author: Per Curiam.

text:
    Roberta HAYNIE v. STATE of Arkansas
    658 S.W.2d 407
    Supreme Court of Arkansas
    Opinion delivered October 17, 1983

      Honey ¿r Rodgers, by: Charles L. Honey, for appellant.

      Steve Clark, Atty. Gen., by: Theodore Holder, Asst. Atty. Gen., for appellee.
   Per Curiam.

Petitioner seeks a belated appeal pursuant to A.R.Cr.P. Rule 36.9. On March 28, 1983, she was found guilty of first degree murder and sentenced to forty years in the Arkansas Department of Correction. Petitioner acknowledges that she was advised of her rights to appeal and failed to express any desire to appeal within the time allowed, which she attributes to her own disorientation and confusion and to a low level of intelligence. Petitioner’s allegations are wholly conclusory and fail to establish good cause as required by the rule. The petition is without merit and is, accordingly, denied.

Purtle, J., would grant rehearing. Justice Purtle’s dissenting opinion on denial of rehearing appears in 281 Ark. at page 98.


author: Richard B. Adkisson, Chief Judge.

text:
    Don VENHAUS et al v. BOARD OF EDUCATION OF PULASKI COUNTY, Arkansas
    83-122
    659 S.W.2d 179
    Supreme Court of Arkansas
    Opinion delivered October 24, 1983

      Henry ir Duckett, by: Stephen L. Curry, for appellants.

      Larry D. Vaught, for appellee.
   Richard B. Adkisson, Chief Judge.

On December 14, 1981, then Pulaski County Judge W. E. Beaumont diverted $176,155.56 from the school tax collection account of appellee, Pulaski County Board of Education, to the Pulaski County General Fund. The money diverted reflected an office rental charge for the Pulaski County Assessor and Collector in the Wallace Building for the years 1979, 1980, and 1981.

Appellee brought this action asking for an order to enjoin the county from charging to it the rent for these offices. The trial court issued the injunction and ordered the county to refund the monies diverted. On appeal we affirm.

Appellants contend that office space for the Assessor and Collector is an actual and necessary expense which can be charged back against the school tax collection accounts pursuant to Ark. Stat. Ann. § 12-806 (Repl. 1979) and Ark. Stat. Ann. § 12-1726 (Repl. 1979). We disagree. While there is no doubt that office space is necessary, the question arises of whose duty it is to bear this expense. In Penix v. Shaddox, 165 Ark. 152, 263 S.W. 389 (1924), this Court found that it was the duty of the county to furnish a courthouse and to provide the necessary offices for the several county officers. Therefore, the expense is one for the county rather than for the Assessor and Collector and cannot be recovered from the school districts.

Further, appellants argue that Amendment 10 of the Arkansas Constitution defeats the refund ordered by the trial judge because the funds diverted in December of 1981 had been expended by the county before appellee took action to prohibit the diversion in January of 1982. We disagree. Appellee acted promptly to recover the funds illegally diverted.

Affirmed.