author: Sam Robinson, Associate Justice. Ed. E. McFaddin, Associate Justice Jim Johnson, Associate Justice

text:
    Richardson v. Huitt.
    5-3296
    379 S. W. 2d 265
    Opinion delivered June 1, 1964.

      Bernard Whetstone, for appellant.

      McMath, Leatherman, Woods & Youngdahl, Huey & Rotlmell, for appellee.
   Sam Robinson, Associate Justice.

Appellant, Clifton Richardson, and appellee, Mark Wilson Huitt, age 40, are friends and neighbors. Huitt had a small tomato patch in Richardson’s back yard. They live in Warren, where Huitt is a member of the police department. Richardson has two pecan trees in his yard. In November, 1962, he asked Huitt to thrash one of the trees and offered to pay him for doing it. Huitt agreed, and a few days later went over to Richardson’s place for that purpose. Mrs. Richardson advised Huitt not to climb the tree; the men, however, did not agree with her. Richardson produced a ladder so that Huitt could get up in the tree, and also a pole with which to do the thrashing. Huitt went up in the tree and proceeded to thrash out the pecans. After he had thrashed all the pecans he could with the pole, Richardson gave him a hammer weighing about sis pounds which Huitt used to strike the limbs and thrash out more pecans. After Huitt had been using the hammer 10 or 15 minutes, the limb on which he was standing broke; he fell to the ground, and both ankles were broken.

In March, 1963, Huitt filed this suit against Richardson alleging:

“1. That the Defendant failed to inspect the tree which he asked the Plaintiff to climb;
2. That Defendant had knowledge of the fact that this particular pecan tree had dead limbs periodically and same should be removed from the tree;
3. That the Defendant was negligent in failing to warn the Plaintiff of the dead limbs in the said pecan tree ;
4. That the Defendant was negligent in failing to provide this Plaintiff with a safe place in which to work. ’ ’ Later the complaint was amended to allege:
“The Defendant, Clifton Richardson, was negligent in failing to furnish the Plaintiff, Wilson Huitt, with safe appliances with which to perform the work Plaintiff was employed to perform.”

Richardson answered denying any negligence on his part and pleaded the affirmative defenses of contributory negligence and assumption of the risk. There was a trial to a jury which resulted in a verdict in favor of Huitt in the sum of $10,000.00. Richardson has appealed.

There are several points involved — the alleged negligence of appellant; the allegation of contributory negligence on the part of appellee, and the question of whether appellee assumed the risk. We reach only the issue of assumption of the risk, and we have concluded that the undisputed evidence shows that Huitt did assume the risk.

There is no evidence that appellant knew Huitt was standing on a dead limb. Huitt testified:

“Q. Was there anything wrong about that limb that you stood on?
A. Not that I know of.
Q. Was it a green limb?
A. 'When I climbed the tree, there wasn’t no leaves on the tree. Nothing but pecans and little twigs. Wasn’t no green limbs. One limb looked just as green to me as another.
Q. And this limb looked just as green as the others ?
A. Just as green as the others.
Q. Looked just as sound as the others?
A. Just as sound as the others.
Q. No way you could look at it and told any different?
A. I imagine if a man got out there and took a little ax or something and hit on it, he might could have found the good ones from the dead ones.
Q. But you couldn’t have told the difference hy looking at them? Just looking at the tree, you couldn’t tell?
A. No, sir.
Q. You couldn’t tell hy just standing under the tree) either, could you?
A. No, sir.
Q. Did you take an ax, or anything like that, and test this limh before you stood on it?
A. No, sir, I didn’t.
Q. Why didn’t you?
A. Because I didn’t have no ax and I didn’t think the limb was rotten. It was as green as the rest.
Q. After he handed the hammer up to you, did you take the hammer and beat the limb a little hit and see whether or not it was rotten?
A. No, sir.
Q. Why didn’t you?
A. Because I thought the limh was as green as the rest of them. It was a 4 inch. I figured it would hold me up.
Q. In other words, at that time and nor now, did you see anything or observe anything that would have caused you to suspicion or believe or think that the limb might not he completely sound and green? Is that right?
A. To me, one limb up there looked just as sound as the other and that’s why I stood on it.
Q. You thought the limb was safe, didn’t you?
A. Yes, sir.
Q. Was there anything about the limb where anybody could have known that the limb was not good?
A. As I said a while ago, anybody could just walk up there and just look at it and it looked good. You might take an ax or hammer and hit it and tell the difference, but just walking up to the limb, you couldn’t.”

Appellee cites cases to the effect that it is the duty of the master to use ordinary care to furnish the servant a safe place to work, and, of course, the law is well established to that effect, but we know of no case where this rule has been extended to require the owner of pecan trees to furnish, for thrashing, trees having no dead limbs. And, furthermore, it has been held that the rule is not applicable where the employee assumes the risk.

The court said in Gans Salvage Co. v. Byrnes, 62 A. 155: "An employee who contracts for the performance of hazardous duties assumes such risks as are incident to their discharge from causes open or obvious, the dangerous character of which he had an opportunity to' ascertain. . . . One who remains in a service which necessarily exposes him to hazardous risks from causes open and obvious, the dangerous character of which he knew or had an opportunity of knowing, must be considered as having assumed such risks, and, if injured in consequence thereof, has no claim against the employer . . . This doctrine, firmly grounded in the law of this state, in the law of England, and of probably every state in the federal Union, though usually stated as a general rule, constitutes, in reality, an exception to or qualification of the broad principle which requires the employer to use ordinary care to provide a reasonably safe place in which the servant may perform his work. It may be taken, then, as a postulate, that a servant, who, on entering into a contract of employment, knows of the dangers of the premises or place of work, or by the use of ordinary care could see and understand them, assumes the risks which arise therefrom.”

Of course, the tree itself was not dead as shown by the fact that it bore pecans. True, it had a dead limb, but there may be a dead limb on any tree, and that is one of the hazards that appellee assumed when he undertook to thrash the tree. There is no contention that Richardson told Huitt to stand on the limb that broke. It is fairly inferrable from the evidence that appellee made his own selection of the limbs on which he would stand while thrashing the tree. It is not shown that any equipment furnished by Richardson was defective.

An employee assumes the risk of all dangers ordinarily incident to his employment. Grayson-McLeod Lumber Co. v. Carter, 76 Ark. 69, 88 S. W. 597; Walther v. Cooley, 221 Ark. 1027, 279 S. W. 2d 288. See also Ark. Digest, Master & Servant, §§ 206 and 213, and the cases therein cited. Climbing a pecan tree that is 60 feet in height to thrash it is a dangerous business. There is always danger of a limb breaking, and such danger is incidental to the undertaking of thrashing the tree. It is said in Labatt’s Master and Servant, Yol. 3, P. 3130: “A doctrine frequently recognized in the formal statements of the courts is that the principle which charges a servant with an assumption of the ordinary risk of an employment is applicable whether that employment may or may not be described as being inherently dangerous. It is, in fact, quite clear that any other position would be entirely illogical and unreasonable. Provided the risk from which the injury results is, as a matter of fact, obviously incident to the employment undertaken by the servant, it is impossible to argue, with any show of reason, that the essential elements from which an assumption of that risk is predicable are not present.”

Prom a long list of cited cases, Labatt’s gives numerous illustrations, such as: There are many kinds of work in which danger is necessarily inherent, where precautions such as would insure safety to the workman are either impossible, or would only be attainable at an expense altogether incommensurate with the end to be accomplished. In all such cases the workman must rely upon his own nerve and skill; and in the absence of express stipulation to the contrary the risk is held to be with him, and not with the employer.”

Appellee cites several cases holding that the servant did not assume the risk under the particular facts involved, but all of the cited cases are distinguishable on the facts from the case at bar.

When the established law of assumed risk is applied to the undisputed facts in this case, there can be no recovery.

Reversed and dismissed.

McF addin, J. concurs.

Johnson, J. dissents.

Ed. E. McFaddin, Associate Justice

(concurring).

I concur in the result reached by the Majority becaiise I am of the opinion that there is no evidence of any negligence against the appellant Richardson. I rest my decision entirely on the absence of negligence.

Jim Johnson, Associate Justice

(dissenting). I do not agree with the majority view. The theory upon which the majority opinion is bottomed might reasonably be applicable to a professional tree surgeon or one trained or experienced in the art of pecan threshing, but the logic in applying the theory to this policeman neighbor completely escapes me. I believe the majority have clearly usurped the jury function in this case by deciding that there was no question for the jury. Review of the testimony raises the question whether appellee could assume the risk when ordered by appellant to remain in the tree and try to knock down pecans with a sledge hammer. The majority took the license to infer from the evidence that appellee made his own selection of the limbs on which he would stand while thrashing the tree. It can just as logically be inferred from the evidence that had the six-pound sledge hammer furnished appellee by appellant as the tool to do the job for which he was employed not been so heavy as to require the use of both hands, one of appellee’s hands could have been free to hold on to another limb or to the tree, thus avoiding or minimizing his injury. Appellee’s testimony is as follows:

. . . “We started back and he said, ‘Well, we’d just as well go on and get the ladder and this bamboo pole and get those pecans,’ and I said, ‘Yes, sir’. So, out the door Mr. Clif went and I was behind him. He walked out to his garage and got his step ladder — a 10 foot step ladder — and he got this big long bamboo pole and brought this pole and step ladder up to the tree and put it up there. He said, ‘OK, there’s the step ladder. Go up there and shake them’. When I got up there, he handed me the pole. He said, ‘ Go up there and shake around the tree and try to get the top.’ He said, ‘I’ve done got the bottom. ’ So, I did. I went up there and I started thrashing the pecans with that pole the best I knew how. I shook them there for a while and tried to rattle those pecans and in. a little while I said, ‘Mr. Clif, I’ve done all I can do. I’cl just as well come doivn,’ and he said, ‘No, I’ve got one more thing I want you to do, Wilson,’ I said, ‘What’s that, Mr. Clif?’ He said, ‘I’ve got a bolting ax out here and I’ll, send it up to you and you hit those limbs with that bolting ax and jar those pecans up at the top of that tree. ’ So, he went and got the ax and got him a nylon string or rope and he said, ‘Let the pole down.’ He tied the string to the pole and said, ‘Pull it up. ’ So, I pulled it up — pulled the sledge hammer up and I was standing on a limb about 3 or 4 inches through and he said, ‘Hit those limbs with that.’ So, I took both hands — I had to use both hands to hit those limbs with that 6 pound hammer — and jarred the tree and all of a sudden this limb broke and I hit the ground. I had 2 broken ankles and I laid over on the ground.
“The only thing that Mrs. Ruth Richardson said to me was when Mr. Clif said, ‘Let’s go get those pecans,’ she said, ‘Wilson, don’t climb that tree. You might get hurt.’ Going out the little hallway in the back, Mr. Clif turned around and said these words, he said, 1 Nobody is going to get hurt.’ ”

One of a number of cases which are here relevant is Griffin v. St. Louis, I. M. & S. Ry. Co., 121 Ark. 433, 181 S. W. 278, in which it was said:

“ (2) It is insisted by counsel for appellee that under the undisputed testimony appellant must be deemed to have assumed the risk. We do not think, however, that it can be said as a matter of la/w that the risk was assumed merely because appellant, under the circumstances, proceeded with the work. He was acting under the immediate commands of the foreman and had the right to some extent to rely upon the foreman’s superior knowledge. It was a question for the jury to determine whether or not appellant appreciated the danger of attempting to handle the piece of timber with an insufficient force óf men.
... “In the present case the servant was acting under the immediate direction of a foreman, and, as stated before, he had a right to rely upon the foreman’s superior knowledge and did not assume the risk unless the jury found that he appreciated the danger and voluntarily proceeded with the work in the face of it.
. . . “ The testimony is, however, that the foreman directed appellant and his co-laborers to handle the piece of timber in the particular way mentioned; that is to say, with two of them at one end, and in doing the work they were following the explicit directions of the foreman. Therefore, we must come back to the proposition that under the proof in this case, before the risk of the danger was assumed, it must be found that appellant appreciated it.”

This principle has been reiterated again and again by this court. In Standard Oil Co. of Louisiana v. Webb, 194 Ark. 569, 108 S. W. 2d 1086, it was stated thusly:

“The facts bring this case within the general rule that the question of assumption of risk is generally one for the jury, and always so where a servant is acting-in obedience to the orders of a superior unless it appears that he both knew and appreciated the danger in obeying such order; or, where such danger is so obvious that a reasonably prudent person would refuse to obey . . . The court correctly submitted the defense of assumed risk to the jury and its verdict against the contention of appellant has some substantial evidence to support it.” [Emphasis mine.]

In Woodley Petroleum Co. v. Willis, 172 Ark. 671, 290 S. W. 953, after restating the above-quoted rule, was said:

... “We cannot say as a matter of law, in the instant case, that appellee knew of the danger, or that the danger was so obvious or patent that he should have known it. The evidence shows that he exposed himself to the danger in an effort to obey the order of his foreman. The order of the foreman carried an implied assurance that appellee could perform the work without danger to life or limb.”

James B. Berry’s Sons Co. v. Presnall, 183 Ark. 125, 35 S. W. 2d 83, also reiterates the above, and states:

‘ ‘ To have put his judgment up against the superintendent ’s would have brought about his immediate discharge. The danger was not so obvious that a reasonably prudent man would refuse to obey the order of his superior, and for this reason we think the question of whether appellee assumed the risk was one for the jury.” And in Chapman v. Henderson, 188 Ark. 714, 67 S. W. 2d 570, this court said:
“The tendency of modern cases is to permit a recovery, unless the employer’s direction calls for nothing-less than recklessness on the part of the employee, leaving no ground for difference of opinions as to the perils of acting pursuant thereto. Owosso Mfg. Co. v. Drennan, 182 Ark. 389, 31 S. W. 2d 762.”

In Neely v. Goldberg, 195 Ark. 790, 114 S. W. 2d 455, the court explained that there are three exceptions to the rule that an employee assumes the risks ordinarily incident to Ms employment, the second exception being, “the servant does not assume the risk of injury incident to his employment when the work is being done under the immediate direction and control of the employer,” and went on to say, “ [a]n employer cannot lull his employee into a sense of security by an assurance of safety and then escape liability for injuries resulting to the employee in relying on this assurance. In such eases, the employee does not assume the risk.”

Thus the questions here for the jury to decide were whether appellee (1) knew there was danger, (2) appreciated the danger in obeying appellant’s order, (3) had some right to rely on appellant’s superior knowledge or reassurances that there was no danger. Appellee had been in the tree under the personal direction of appellant for some time poking pecans with the bamboo pole, when appellant ordered him to shake the tree with the sledge hammer.- This is when the limb and appellee parted company with the tree. Prior to that there had been no sign of danger — the limb had apparently seemed and held firm. The trial court correctly submitted the matter of assumption of the risk to the jury.

For1 the reasons stated, I respectfully dissent.


source: Caselaw Access Project

author: Jim Johnson, Associate Justice.

license: Public Domain

text:
    Baskin v. Baskin.
    5-3289
    381 S. W. 2d 442
    Opinion delivered June 1, 1964.
    [Rehearing denied September 14, 1964.]

      Griffin Smith, for appellant.

      Williams & Gardner, for appellee.
   Jim Johnson, Associate Justice.

This is a suit to set aside a judgment. Appellant Ann Baskin obtained a judgment in Shelby County, Tennessee, Circuit Court against appellee William D. Baskin for $760.00 on September 20, 1963. A petition was filed in Perry Circuit Court, case No. 2202, on October 20, 1963, to reduce this judgment to an Arkansas judgment, with personal service on appellee on October 31,1963. One day prior to the filing of case No. 2202, appellee Ora M. Baskin (William Baskin’s mother) or October 29, 1963, filed suit No. 2201 against William Baskin in Perry Circuit Court for $12,-000.00 plus interest on a promissory note. October 30, 1963, William Baskin was served, filed an answer confessing judgment and judgment was entered against him that day for $16,200.00. On January 10, 1964, appellant filed a petition in case No. 2202 (her foreign judgment registration) alleging that the judgment obtained by Ora Baskin (in case No. 2201) was a fraud, that the debt did not exist, that the proceeding was a conspiracy to defeat appellant’s rights under her judgment, and prayed-that the judgment of Ora Baskin be set aside. Appellees waived service and appeared in person and by counsel at the hearing on February 1, 1964. The cause was submitted on the pleadings in both cases and testimony of appellees. The circuit court found that the petition should be denied, from which appellant has appealed.

For reversal appellant contends that the evidence clearly established that the purported obligation to Oro Baskin did not in fact- exist, that the entire proceeding in ease No. 2201 was a device to obstruct enforcement of appellant’s Tennessee judgment and that the trial court erroneously concluded otherwise.

This is manifestly a collateral attack on the judgment of Ora Baskin. While the record strongly indicates an insidious scheme to avoid payment of appellant’s judgment, the evidence presented was not evidence of extrinsic fraud necessary to impeach the judgment. Extrinsic fraud has been described as fraud in securing the judgment, not fraud in securing the notes sued on, Sibley v. Manufacturers Furniture Co., 220 Ark. 234, 247 S. W. 2d 20; nor the truth or falsity of testimony on the amount of a mortgage debt, Croswell v. Linder, 226 Ark. 853, 294 S. W. 2d 493; but the fraud to impeach a judgment must be extrinsic of the matter tried, it must be fraud practiced upon the court in the procurement of the judgment itself. Turner v. Turner, 221 Ark. 932, 257 S. W. 2d 271.

Affirmed.


text:
    Davis v. Waller, County Judge.
    5-3321
    379 S. W. 2d 283
    Opinion delivered June 1, 1964.

      Catlett <& Henderson, for appellant.

      Smith, Williams, Friday & Bowen, by Herschel H. Friday and Frank Warden, Jr., for appellee.
   Jim Johnson, Associate Justice.

This is a taxpayers’ suit to enjoin levy of taxes and issuance of bonds to defray the cost of constructing and equipping a county hospital.

On September 18, 1963, appellants Howard Davis and John H. Stamps filed a complaint in White Chancery Court against appellee Forrest Waller, White County Judge. The complaint alleges that the action was brought under Article 16, § 13 of the Arkansas Constitution (the illegal exaction provision); that a called special election was held on September 10, 1963, to determine (1) whether a county hospital should be constructed and equipped at an estimated cost (to the county) of $600,000, and (2) whether a tax should be levied not to exceed two mills to pay bonds to be issued for construetion and equipment of the hospital; that a majority of the votes cast approved both construction and tax; that Amendment 17 as amended by Amendment 25, while authorizing a tax for hospital construction, gives no authority for the purchase and installation of hospital equipment; that the plans and specifications of the proposed hospital filed in the office of the county clerk were inadequate, incomplete and unsuitable to formulate a reasonable understanding of the nature, extent and approximate cost of the proposed hospital; and prayed that the county judge be enjoined from calling the quorum court into session to levy the tax, from presenting such proposal to the quorum court at any regular, special or adjourned term, and from issuing any bonds thereunder; and for a declaratory judgment that Amendment 17 as amended by Amendment 25 includes no authority for issuance of bonds to provide money to purchase equipment for a county hospital. The record reflects the following:

(1) The county court entered an order declaring the necessity for the project (the acquiring a site for and constructing and equipping a county hospital) on August 7, 1963, which order appointed an architect to prepare preliminary plans, specifications and estimates of cost for the proposed project.

(2) Plans, specifications and estimates' (hereinafter referred to as plans) were prepared and filed in the office of the county clerk on August 9, 1963, where they remained subject to the inspection of any interested person. A copy of the plans was introduced in evidence.

(3) The county court entered an order on August' 10, 1963, approving the plans and calling the special election for September 10, 1963. The election was duly held with the results as follows :

For construction 4075
Against construction 2707
For building tax 3987
Against building tax 2774

Following trial on December 9, 1963, the chancellor found:

(1) The preliminary plans were proper for a reasonable understanding of the nature, extent and approximate cost of the proposed hospital, and met all the requirements of Amendment 17, and such preliminary plans were properly approved by the county court, and

(2) The submission to the electors of the question of equipping the proposed county hospital and the proposed expenditures therefor out of the proceeds of the special tax are within the authority conferred by Amendment 17.

From the decree dismissing the complaint with prejudice, appellants have prosecuted this appeal.

For reversal-appellants urge three points. The first and third points are that Amendment 25 does not authorize the levy of a tax to equip a hospital, and that equipment includes only those items affixed to the building and which are durable. These points questioning the legality of equipping the hospital have been considered very recently by this court in Hollis v. Erwin, 237 Ark. 605, 374 S. W. 2d 828, wherein we held that a county is authorized under Amendment 17 to equip a hospital, and explained that:

“A hospital is more than a mere building of four walls and a roof. Webster’s Dictionary defines a hospital as: 'An institution or place where sick or injured persons are given medical or surgical care. ’ A bare and empty building could hardly fit that definition . . . Certainly the equipping of the hospital is an essential part of its construction . . . There is authority for the equipping and furnishing of buildings authorized by Amendment 17.”

Appellants ask us to re-examine this holding and we have carefully noted their argument. It is our considered opinion that Hollis is correct and we here reaffirm it. Appellants also argue that even if equipment may be included, the only type that is proper is durable equipment affixed to the building. We do not agree. The public purpose embodied in Amendment 17 can be accomplished only by a functioning hospital and, therefore, bonds may be issued and the proceeds thereof spent for any type of equipment, furnishings and property necessary for or related to a functioning hospital.

Appellants’ second and principal point urged for reversal is that the plans and specifications failed to furnish a reasonable understanding of the nature, extent and approximate cost of the hospital.

Section 2 of Amendment 17 provides for the preparation of such plans, specifications or estimates of cost as may be proper for a reasonable understanding of the nature, extent and approximate cost of the contemplated improvement. Section 3 of Amendment’ 17 vests jurisdiction in the county court to examine and approve such plans, specifications and estimates. Plans were prepared and filed in the office of the county clerk and were subsequently approved by the county court, in accordance with the provisions of Amendment 17. Appellants challenge the sufficiency of the plans to convey a reasonable understanding of the nature, extent and approximate cost of the proposed hospital. As set out above, appellants invoked the “illegal exaction” jurisdiction of the chancery court. We have stated that this provision of the Constitution does afford taxpayers injunctive relief in a proper case against arbitrary or unlawful action. Starnes v. Sadler, 237 Ark. 329, 372 S. W. 2d 585. However, the provision does not confer jurisdiction upon chancery in all situations and under all circumstances. In this case, the provision must be interpreted in the light of the language of Amendment 17 and the purposes intended to be accomplished by the electors in adopting Amendment 17. Since this is an area involving the public interest and since it has been the subject of a considerable amount of litigation, we have concluded that it would be appropriate here to reconcile some conflicts which have heretofore existed in our law. We have determined that the various steps set forth, iu Amendment 17 which are preliminary to the election properly fall in the category of election prócedures concerning which strict compliance may be mandatory before the election, but is only directory thereafter. Therefore, any defect with regard to any of the preliminary steps (in connection with the filing or the contents of the order declaring necessity, the filing or the contents of the plans, specifications and estimates, or the filing and the contents of the order approving the plans and calling the election) raised for the first time after an election cannot defeat the will of a majority of the electors. See the following cases involving analogous situations: Wheat v. Smith, 50 Ark. 266, 7. S. W. 161; Cisco v. Caudle, 210 Ark. 1006, 198 S. W. 2d 992; Brown v. Bradberry, 214 Ark. 937, 218 S. W. 2d 733; Jeffery v. Fry, 220 Ark. 738, 249 S. W. 2d 850; and Luther v. Gower, 233 Ark. 496, 345 S. W. 2d 608. As was stated in Wheat v. Smith, supra:

“. . . The courts hold that ‘the voice of the people is not to be rejected for a defect or want of notice, if they have in truth been called upon and have spoken. ’ ’ ’ In this regard, Thomas v. Sewell, 184 Ark. 289, 42 S. W. 2d 225, (in which a majority of the court held that the failure of the county court to enter the order approving the plans and calling the election on the record within a reasonable time before the election was a jurisdictional defect which avoided the authority conferred at the election and prompted the court to direct the entry of an injunction against the county proceeding further) is expressly overruled. We are convinced that our interpretation is the one intended by the adopters of Amendment 17 and the one necessary for the proper realization of the public purposes intended by the Amendment. Thus, these preliminary matters cannot be challenged after the election by a suit in chancery under Article 16, § 13 or otherwise or in any other court proceeding because any defect in the taking of the preliminary steps is cured by the election. Election contest questions arising from the conduct of the election can be raised in an appropriate election contest after the election and the mechanical counting and determining of results can be raised in appropriate proceeding after the election. See Jones v. Dixon, 227 Ark. 955, 302 S. W. 2d 529. This is not to say, however, that questions of basic authority (such as the equipment issue raised by appellants herein, an attempt to issue bonds under Amendment 17 without an election, an attempt to levy more than a five mill tax, etc.) cannot be raised in proceedings in Chancery under Article 16, § 13 filed after the election.

It follows, from what has been said, that the challenge in appellants’ complaint as to the sufficiency of the plans came too late since the suit was instituted after the election. In the case at bar, however, both parties indicated a desire for a complete disposition on the merits of the issues. We are convinced here that it would be in the public interest. Therefore we have proceeded to review the sufficiency of the plans. As we have seen, Amendment 17 vests jurisdiction in the county court to determine the sufficiency of the plans. Actually, under the Amendment and the facts of this case, the initial determination was made by a professional expert, the architect (see Section 2 of Amendment 17) which determination was subsequently approved, after examination, by the county court (see Section 3 of Amendment 17). As above pointed out, the proper procedure would have been a direct challenge before the election, and the court review of the action of the county court in this regard would go only to the extent of determining whether the county court regularly pursude its authority and did not act arbitrarily or capriciously. But, in order to dispose of the issue, we have examined the plans and the evidence and have determined that the county court in the first instance and the chancery court in the trial there properly found and concluded that the plans were sufficient to meet the requirement of Amendment 17 of conveying a reasonable understanding of the nature, extent and approximate cost of the proposed hospital. The plans, on a single sheet, reflect a front elevation which indicates generally the appearance of the building from the front; contain outline specifications; contain a floor plan showing waiting rooms, offices, dining, kitchen, mechanical rooms, locker space, operating rooms, x-ray, central sterilization and supply, treatment rooms, record room, laboratory, isolation rooms, bedrooms (a typical bedroom with bath facilities is shown), nurses stations, linen areas, treatment areas, delivery rooms, scrub rooms, labor and recovery rooms, sanitation areas, nursery wing, emergency entrance and public entrance; and reflect an estimated total cost of $1,200,000. The evidence in this case reflects that the proper preparation of more detailed plans would have cost the county from $10,000 to $54,000. Indeed, if the various counties had to obtain and spend such substantial sums on plans, specifications and estimates before they could even let the' electors vote on the question, it seems to us that the public purposes sought to be accomplished by Amendment 17 would largely be defeated.

The decree of the chancery court is affirmed, and, pursuant to motion of appellees and for good cause show an immediate mandate is ordered as being in the public interest.


author: Frank Holt, Associate Justice.

text:
    Nottingham v. Knight.
    5-3294
    379 S. W. 2d 260
    Opinion delivered June 1, 1964.

      Lowe, Moore & Webber, for appellant.

      Autry & Goodson, for appellee.
   Frank Holt, Associate Justice.

The sole issue presented on this appeal is whether appellant was entitled to a transfer of this cause to a court of law.

The appellees brought an action in chancery court claiming ownership of a tract of land and seeking to enjoin the appellant from trespassing upon the described lands; to quiet and confirm appellees’ title as against appellant; to cancel and remove as a cloud upon appellees ’ title certain instruments placed of record by the appellant and for the recovery of damages.

Appellant filed an answer denying the allegations and alleging that he is the owner of the disputed lands; that he is in sole possession and praying that the cause be transferred to a court of law; and, also, that title, right and interest in the lands be quieted and confirmed in him.

The Chancellor refused to transfer the cause to a court of law and upon trial, among other things, decreed that title to the lands be quieted and confirmed in appellees.

For reversal appellant contends on appeal that the Chancellor erred in refusing to transfer the cause to a court of law, urging that appellees ’ complaint constitutes an ejectment action and, also, that appellees cannot maintain a suit in chancery to quiet title since appellees were not in possession.

We have held and appellant cites in support of his position a.number of cases to the effect that where the defendant in an action is in possession and control of the land in dispute when the suit is brought, he has a right to have the cause transferred to a court of law. These cases enunciate a legal principle which is not applicable when equitable issues are involved in the action. For example, appellant cites Winkle v. School District, 215 Ark. 670, 221 S. W. 2d 884 and quotes the following portion of the opinion:

“ * * * It is undisputed that appellant was in actual possession and control when the suit was brought. He, therefore, has the constitutional right to demand that the issues be tried in a court of law. No equitable issue ivas involved. The question of title was purely a legal one.” [Emphasis added]

We think equitable issues exist in the case at bar. If we assume arguendo that appellees’ complaint failed to state grounds for equitable relief, any such defect was supplied by appellant’s pleadings. Appellant pleaded an equitable issue and invoked the aid of equity in his answer when he prayed “that the title, right and interest of the Defendant be quieted and confirmed against the claims of the Plaintiffs herein”.

In Thomason v. Abbott, 217 Ark. 281, 229 S. W. 2d 660, we said:

“* * * The answer of the defendants was not only a denial of the complaint but also prayed, inter alia, ‘that the title of the defendants be quieted and confirmed.’ Appellants (defendants) now claim that the complaint was an action in ejectment and should not have been tried in the equity court. In Goodrum v. Ayers, 56 Ark. 93, 19 S. W. 97, we said:
“Conceding that the plaintiff was not in possession of the land, and for that reason could not maintain a suit to quiet title, it cannot avail the appellant; for he filed a cross-bill seeking to quiet his own title, and it gave the court jurisdiction of the entire controversy.’ To the same effect, see Weaver v. Gilbert, 214 Ark. 800, 218 S. W. 2d 353. So, whatever of equity jurisdiction might have been lacking in the plaintiffs’ complaint was fully supplied by defendants’ prayer for relief.”

In Spikes v. Hibbard, 225 Ark. 939, 286 S. W. 2d 477, we said:

“* * * Even if the complaint failed to state a ground for equitable relief the appellees supplied the defect by asking that their title be quieted. It is a familiar rule that one who has invoked the assistance of equity cannot later, object to that jurisdiction unless the subject matter of the litigation is wholly beyond equitable cognizance. ’ ’

See, also, 6 Arkansas Law Review, p. 83.

Therefore, the Chancellor was correct in refusing to grant appellant’s motion to transfer the case at bar to a court of law. In view of our decision it is unnecessary for us to consider the other arguments advanced by the appellees.

The decree is affirmed.


text:
    Curry, County Judge v. Dawson, Chancellor.
    5-3340
    379 S. W. 2d 287
    Opinion delivered June 1, 1964.

      Max M. Smith, Smith, Williams, Friday & Bowen, by Herschel II. Friday and John C. Echols, for appellant.

      Baúl K. Roberts, for appellee.
   Frank Holt, Associate Justice.

This is a petition for a writ of prohibition. The petitioners are the defendants in a taxpayers’ suit now pending before the respondent Chancellor. The taxpayers’■ action was instituted by James 0. Young, and numerous other plaintiffs, to restrain and enjoin the defendants [petitioners], Bay Curry and other county officials, from the imposition and collection of a tax based upon a county election in which the voters in two townships had no opportunity to vote. The respondent overruled defendants’ demurrer to the complaint, refused to dismiss plaintiffs’ complaint for lack of jurisdiction, and set the case for trial.

Petitioners contend that the plaintiffs’ complaint constitutes an election contest and, therefore, chancery court has no jurisdiction to try this issue. Also, that a writ of prohibition is the only effective remedy available to the petitioners. It is respondent’s position that the pending action is not an election contest and jurisdiction exists because the petitioners are attempting to exact an illegal tax in violation of Article 16, § 13 of our State Constitution.

The allegations in the complaint pertinent to this appeal are that pursuant to the provisions of Amendment 17 of the Constitution of Arkansas, as amended by Amendment 25, a county election was held on December 10, 1963 and as a result of this election a majority of the electors, 426, voted in favor of and 388 electors voted against the proposed reconstruction and extension of the Cleveland County Hospital; that a majority, 408 electors, voted for and 389 electors voted against the proposed building tax; that as a result of the certification that all polls were open and the measures were approved by a majority vote, the Cleveland County Quorum Court levied a tax on the property of all the taxpayers of the county for the purpose of providing the necessary funds to finance the proposed building program; that the tax books are being extended and prepared for the collection of such tax, and it is proposed to offer general obligation hospital bonds for sale in the near future; that the elecis void, the tax illegal, and the proposed sale of bonds is unauthorized because the certificate of the Election Commissioners is false since they “failed and neglected to provide [an] opportunity for the citizens and voters of said two townships [Whiteoak and Whiteville] to vote on said measures”; and that if the 260 eligible electors in those townships had been permitted to vote, 90% or 234 would have voted against the proposed measures, thus changing the outcome of the election. In an amendment to the complaint, plaintiffs named 41 electors in Whiteoak Township and alleged that these were eligible voters who “would have voted against both the proposed construction and the proposed building tax”, thus changing the outcome of the special election.

The sole issue presented in the instant case is whether the action challenging the validity of the election is one to prevent an illegal exaction based upon a void election, or whether it is an action to contest an election.

We have often held» that the questioning of the validity of the actual conduct of an election is an election contest and that the chancery court has no jurisdiction in such a cause. Rich v. Walker, 237 Ark. 586, 374 S. W. 2d 476; Jones v. Dixon, 227 Ark. 955, 302 S. W. 2d 529; Parson v. Mason, 223 Ark. 281, 265 S. W. 2d 526; Priest v. Mack, 194 Ark. 788, 109 S. W. 2d 665; Hutto v. Rogers, 191 Ark. 787, 88 S. W. 2d 68; Guthrie v. Baker, 224 Ark. 752, 276 S. W. 2d 54. As was succintly said in Parsons v. Mason, supra, an election contest involves ‘ ‘ going behind the returns and inquiring into the qualifications of the electors and other matters affecting the validity of the ballots.”

It is true that we have held chancery court has jurisdiction to enjoin the illegal exaction of a tax as prohibited by Article 16, § 13 of our Constitution. Phillips v. Rothrock, 194 Ark. 945, 110 S. W. 2d 26; Harrison v. Norton, 104 Ark. 16, 148 S. W. 497; Arkansas-Missouri Power Corp., v. City of Rector, 214 Ark. 649, 217 S. W. 2d 335. However, none of these cases involved the actual conduct of an _ election or ‘ ‘ going behind the returns”.

An election contest is a special proceeding authorized only in accordance with constitutional and statutory provisions. Sumpter v. Duffle, 80 Ark. 369, 97 S. W. 435; Walls v. Brundidge, 109 Ark. 250, 160 S. W. 230. The county court has exclusive original jurisdiction in all matters necessary “to the internal improvement and local concerns” of the county. Article 7, § 28, Arkansas Constution. The construction of a county hospital is a matter of internal improvement and local concern and the county court has exclusive jurisdiction in the trial of an election contest arising from a special election on the question of the construction of a county hospital and such contest must be commenced within twenty (20) days following the election. [Ark. Stat. Ann. § 3-1203 (Repl. 1956)]; Jones v. Dixon, supra.

The matters alleged in plaintiffs’ complaint, in effect, necessitate ‘ ‘ going behind the returns ’ ’ as certified and, also subject the elector’s qualifications to inquiry as well as any other matter affecting validity of the ballots. Plaintiffs ’ allegations in fact question the actual conduct of the election. Therefore, we hold that plaintiffs’ allegations are in the nature of an election contest and not cognizable in equity.

The plaintiffs were not without a remedy. The county court was the proper forum in which to question, within twenty days after the election, the neglect and failure of the election commissioners to conduct an election in these two townships. Public policy demands that the requirements imposed by our constitution and our legislative enactments governing the trial of an election contest be strictly observed in order that election results have stability and a finality, especially where .the construction of public improvements such as in the case at bar is in issue.

Prohibition is the proper remedy to prevent the chancery court from exceeding its jurisdiction on matters pertaining to an election contest. Campbell v. Waggoner, 235 Ark. 374, 360 S. W. 2d 124; Faver v. Golden, Judge, 216 Ark. 792, 227 S. W. 2d 453; Murphy v. Trimble, Judge, 200 Ark. 1173, 143 S. W. 2d 534. The expense of time and money required in an election contest renders inadequate the ordinary remedy by an appeal from a forum which is without jurisdiction.

The petition for writ of prohibition is granted and for good cause shown an immediate mandate is ordered.


author: Arthur G. Frankel, Special Associate Justice. George Rose Smith, J., Jim Johnson, Associate Justice

text:
    Simpson, Bank Commissioner v. Monette State Bank.
    5-3261
    381 S. W. 2d 442
    Opinion delivered June 1, 1964.
    [Rehearing denied September 21, 1964.]

      Bruce Bennett, Attorney General, by Jack L. Lessenberry, Chief Asst. Atty. General, for appellant.

      Leon B. Catlett and E. J. Ball, for appellee.

      Smith, Sanderson, Stroud & McClerkin, W. S. Mitchell, John T. Williams, Cooper Land, Louis L. Ramsay, Jr., Fred M. Pickens, Jr., Harry E. Meek, Botvie <& Boyce, Doug Bradley, for Amici Curiae.
   Arthur G. Frankel, Special Associate Justice.

The appellee, Monette State Bank, a domestic banking corporation, instituted suit for declaratory judgment to interpret Acts 190 of 1961 and 544 of 1963. The appellants are the State Bank Commissioner and the State Banking Board. Briefs were filed by the parties and amicus curiae and the case heard orally.

The facts are clear and undisputed. During 1937, appellee was granted a domestic banking charter and commenced business in Monette. Appellee was then given permission by the State Banking Board to open a teller’s window in Caraway under the authority of Act 191 of 1935 [Ark. Stat. Ann. § 67-319 (Repl. 1957)]. That Act contained the provision that “* * * No office shall be continued at any place after a legally chartered bank has actually commenced business at that place.” The General Assembly enacted Act 190 of 1961, now codified as Ark. Stat. Ann. § 67-340, et seq, (Supp. 1963) for the expressed and obvious purpose of clarifying the legal status of a large number of teller’s windows that had been created and to furnish a comprehensive guide for the establishment of future windows and repealed Act 191 of. 1935.. In 1961 appellants issued a charter to the Caraway Bank authorizing the commencement of a new banking business in Caraway. After this litigation had been instituted the- General Assembly, in 1963, passed Act 544 which amended Sections 4 and 5 of Act 190 of 1961.

The question presented in this appeal is whether the teller’s window operated by appellee in Caraway can be required to close and terminate business. Relying on Section 4 of Act 190 of 1961, appellee earnestly argues in its excellent brief that its Caraway window was ‘ ‘ grandfathered” from the closing requirement. This proposition cannot be sustained by that Section [now § 67-343 (Supp. 1963)] which reads as follows:

‘ ‘ Every legally chartered banking instituiton, which, on or before the effective date of this act [§§ 67-340— 67-352], was engaged in operating, or had obtained a permit to operate, any banking facility, may continue to retain and operate same under the general banking laws of the State of Arkansas, except as provided in section 8 [§ 67-348] hereof; and the requirements and restrictions set forth in this act, except as provided in said section 8 [§ 67-347], shall not apply to any such banking facility which, on or before the effective date of this act, was established, engaged in operating, or had obtained permit to operate; but the provisions and restrictions set forth in this act, except as provided in said section 8 [§ 67-347] shall be applicable only to those tellers windows which shall henceforth be established pursuant to the provisions of this act;”.

Moreover, history of the legislation confirms a consistent attitude of the legislature to encourage organization and ownership of local banks by requiring a teller’s window to close when a bank is chartered in the community where only window services are furnished.

Next, appellee forcefully contends that it possesses a vested right to continue the operation of its facility in Caraway. To subcribe to such a theory, Act 191 of 1935 which initially permitted the opening of the window must be ignored. Of greater consequence, the fundamental rule of this jurisdiction that banking by corporation is only a privilege would necessarily be overruled. Appellee has failed to furnish any authority or reason to alter our many decisions. State Use Crawfordsville Special School District v. Huxtable, 191 Ark. 10, 12 S. W. 2d 1; Holland v. Nakdimen, 177 Ark. 920, 9 S. W. 2d 307. Appellee never possessed more than a conditional privilege which was constantly susceptible to immediate revocation. Such legislation was within the proper sphere of inherent police power. As asserted by appellants, a conditional privilege cannot produce a vested right.

Appellee also advanced the argument that the Acts in controversy are discriminatory since windows located in the same municipality as the parent bank (such as Little Bock banks) are not required to close when a new bank is chartered in the city. There is no merit in this. The Acts apply uniformly to all banking institutions. The fact that the legislature makes a distinction between a locality that does not have full banking services and teller’s windows located within the municipality is not discriminatory but rather reasonable and necessary. It is proper to add that there is no question but that appellee has faithfully served its customers, but this fact is not material or decisive since the business that a window may transact is severely restricted. Ark. Stat. Ann. § 67-342 (Supp. 1963). This only points up the prefer-ability of encouragement of new local full service banks for vigorous and vital communities.

However, we construe Act 190 of 1961 to contain the same provision as Act 191 of 1935 pertaining to closing of a teller’s window. On this issue, Act 190 of 1961 is constitutional in all respects, and Act 544 of 1963 which only clarifies certain language is held to be constitutional and valid.

There is no question but what the General Assembly could retroactively alter that provision by Act 544 of 1963, and so logically no detriment accrued by the subsequent passage of Act 544. In Holland v. Nakdimen, supra, it was stated:

* * When Mrs. Scott and-the bank made this contract they-"knew that the regulation and control of banks came under the internal police power of the State and that this contract must be subject to all laws then in force or which might thereafter be passed.”

See, also, Leep v. St. Louis, IM&S Railway Company, 58 Ark. 407, 25 S. W. 75; Dover v. State, 165 Ark. 496, 265 S. W. 76; Shields v. Ohio, 95 U.S. 319.

It is deemed imperative to note that the legislature by the Acts considered here have not set standards to close a bank, but merely to terminate the operation' of a teller’s window. As noted previously, appellee has not suffered any inequity since the window from its inception ivas subject to closing.

In vieAV of this decision, it becomes unnecessary to discuss or determine the admissibility of the testimony offered by appellants as to the intent of the legislature by enacting Act 190 to 1961.

The permanent injunction is dissolved and the cause dismissed at the cost of appellee.

George Rose Smith, J., concurs.

Johnson, J, dissents.

Holt, J, not participating.

George Rose Smith, J.,

(concurring). The minority opinion seems to be based upon the premise that § 4 of Act 190 of 1961 Avas meant to apply to a teller’s AvindoAV such as the one now before us — a AvindoAV situated in a city or toAvn other than the one Avhere the parent bank itself is located. When Act 190 is read as a whole it is clear, in my opinion, that § 4 Avas intended to apply only to those teller’s windoAVs authorized by § 1 of the act— AvindoAALS in the same city or toAvn as, the bank itself. Section 8 of Act 190 was evidently meant to govern a AvindoAV such as the one at CaraAvay. This section unmistakably carries forward the proAdso originally found in Act 191 of 1935, by declaring that such a teller's windoAV must be closed Avithin ninety days after a full-scale banking institution is granted a charter to do business within the city or town. Thus the appellee could never have acquired a vested right, for the controlling law has always provided that its Caraway window would have to he discontinued if a hank should be established in Caraway.

Jim Johnson, Associate Justice

(dissenting). I do not agree with the majority view. If the majority opinion is allowed to stand, appellee and those similarly situated will be deprived of their property without due process of law in contravention of Article II of the Constitution of Arkansas and the 14th Amendment of the Constitution of the United States. The rationale of the majority if carried, to its logical conclusion could open the door for the summary closing of any state chartered bank in Arkansas, protestations contained in the opinion to the contrary notwithstanding. While it’s true as cited by the majority that regulation and control of banks come under the internal police power of the state, never has the power been extended to permit the closing of any entire facility. If a teller’s window can be closed in this case under the guise of a proper exercise of the police power, what is to prevent the closing of the entire bank at some future date by the exercise of that same power. The precedent is being set.

The majority seems obsessed with the struggle to breathe life into Act 191 of 1935. This act is dead. The slate was wiped clean when Act 190 of 1961 said in Section 14:

“That Act 191 of 1935, and all other laws in conflict herewith, are hereby repealed.”

This specific repeal caused Act 191 of 1935 to be no more. Upon its effective date Act 190 of 1961 became the law applicable to appellee’s teller’s window in Caraway. Section 4 of this act is as follows:

“Every legally chartered banking institution, which, on or before the effective date of this act, was engaged in operating, or had obtained a permit to operate, any banking facility, may continue to retain and operate sáme wherever now located under the general banking laws of the State of Arkansas; and the requirements and restrictions set forth in this Act shall not apply to any such banking facility which on or before the effective date of this Act, established, engaged in operating, or had obtained a permit to operate, but the provisions and restrictions as set forth in this Act shall be applicable only to those teller’s windows which shall be henceforth established pursuant to the provisions of this Act.” [Emphasis mine.]

This provision is so clear as to defy misinterpretation. It emphatically says that the restrictions contained in Section 8 of Act 190 of 1961 providing -for closing of a teller’s window operated in a different city from that in which the banking institution is operating “upon the granting of a new charter for a banking institution,” is inapplicable to appellee’s teller’s window which was in operation on and prior to- March 7, 1961, the effective date of Act 190 of 1961. To construe this act otherwise is to legislate, a function which is beyond the province of this court.

Aside from the business appellee does through its Caraway facility (which amounts to about one-third of its deposits), it is undisputed that appellee has invested a considerable amount of money in machinery, equipment, fixtures, leasehold improvements and other tangible and intangible property in Caraway for the single purpose for use in a banking business. Under the law appellee had a perfect right to build this business and make these investments. Whatever doubts which might have existed as to the status of these rights under the dead 1935 act, certainly under the unmistakable terms of Act 190 of 1961 appellee acquired vested property rights to operate and continue to operate its facility at Caraway. There is nothing conditional about these acquired rights — they are absolutely vested. I have no quarrel with the holdings in the cases cited by the majority seeking to support their declarations on this point. The cases simply are not applicable here. It is fundamental as stated by the majority that “banking by corporation is a privilege,” jnst as it is fundamental that the state through its internal police power has the right to promulgate and execute reasonable regulations of banking corporations. But such is not the case in the matter confronting us. The net effect of the majority holding goes beyond reasonable regulation and destroys a preexisting right to do business. To infer as the majority does that a corporate privilege cannot evolve into vested rights is to fly into the teeth of the momentous decision rendered in the celebrated case, Trustees, Dartmouth College v. Woodward, 4 Wheat. 518, 4 L. Ed 629, and the myriad cases which have never deviated from the rule there set. As spelled out unequivocally in Article II, § 22 of the Constitution of the State of Arkansas, “the right of property is before and higher than any constitutional sanction. ’ ’

Following the passage of Act 190 of 1961, a bank was established in Caraway. The Caraway Bank was chartered during the period when appellee was operating its facility in Caraway under the property rights vested in it by Act 190 to 1961. Subsequently the General Assembly met and passed Act 544 of 1963, the relevant portions of which provide:

“Section 1. That Section 4 of Act 190 of the Acts of the General Assembly of the State of Arkansas for the year 1961, approved March 7, 1961, be, and the same is hereby, amended to read as follows:
“Section 4.- Every legally chartered banking institution, which, on or before the effective date of this Act, was engaged in operating, or had obtained a permit to operate, any banking facility, may continue to retain and operate same under the general banking laws of the State of Arkansas, except as provided in Section 8 hereof; and the requirements and restrictions set forth in this Act, except as provided in said Section 8, shall not apply to any such banking facility which, on or before the effective date of this Act, was established, engaged in operating, or had obtained permit to operate; but the provisions and restrictions set forth in this Act, except as provided in said Section 8 shall be applicable only to those teller’s window which shall henceforth be established pursuant to the provisions of this Act; provided, however, the provisions of Section 8 hereof shall in any event apply to all tellers windows and branch offices established subsequent to the effective date of Act 191 of the Acts of the General Assembly of the State of Arkansas for the year 1935.”

In commenting on this last pronouncement by the legislature the majority says, “There is no question but that the General Assembly could retroactively alter that provision [Section 4 of Act 190 of 1961, supra] by Act 544 of 1963.” That is not my understanding of the law. Vested property rights are not to be treated so lightly. This court distinctly declared the law applicable here in Gillioz v. Kincannon, 213 Ark. 1010, 214 S. W. 2d 212, as follows:

“The rule appears to be well settled generally that retrospective laws as the one here, are unconstitutional if they interfere with substantive, or substantial rights, and valid only when they effect remedies or procedure. C.J.S. 16, p. 861, § 417 et seq.
“ 'Rights conferred by statute are determined according to statutes which were in force when the rights accrued and are not affected by subsequent legislation. The Legislature has no power to divest legal or equitable rights previously vested.’ Coco v. Miller, 193 Ark. 999, 104 S. W. 2d 209.
“In 50 Amer. Jur., p. 493, § 477, the author says: 'Because every law that takes away or impairs vested rights under existing laws, is generally reprehensible, unjust, oppressive, and dangerous, such retroactive' laws have not been looked upon with favor, but with disfavor, so that courts are loath to give a statute such effect. To the contrary, a prospective interpretation of statues affecting substantive rights is favored. It is a maxim, which is said to be as ancient as the law itself, that a neAV law ought to be prospective, not retrospective, in its operation (nova constitutio futuris formam imp oners debet, non praeteritis).’ ”

See also Brown v. Morison, 5 Ark. 217; Porter v. Hanley, 10 Ark. 186; Beavers v. Myar, 68 Ark. 333, 58 S. W. 40; Tipton v. Smythe, 78 Ark. 392, 94 S. W. 678; Smith v. Spillman, 135 Ark. 279, 205 S. W. 107, 1 A.L.R. 136; Robinette v. Day, 210 Ark. 219, 242 S. W. 2d 124.

On the whole case I cannot escape the conclusion so eloquently stated by this court in St. Louis, I. M. & S. Ry. Co. v. Alexander, 49 Ark. 190, 4 S. W. 753, “This is not legislation, but confiscation, and is beyond the power of the legislature.” The learned Chancellor’s decree should he affirmed in toto.

For the reasons stated I respectfully dissent.


author: George Rose Smith, J.

text:
    Ridgeway v. Catlett, Chairman.
    5-3372
    379 S. W. 2d 277
    Opinion delivered June 1, 1964.

      Lee Ward, for appellant.

      Bruce Bennett, Attorney General, by Jerry L. Patterson, Asst. Atty. General, for appellee.
   George Rose Smith, J.

By filing the required pledges and paying his ballot fee the appellant, E. T. Ridgeway, qualified as a candidate for the nomination for the office of Governor in the coming Democratic primary. Thereafter it was brought to the attention of the appellees, the chairman and secretary of the State Democratic Central Committee, that Ridgeway had been convicted of the crime of embezzling public funds and might therefore be ineligible to hold public office. Arkansas Const., Art. 5, § 9. On May 20 the appellees notified Ridgeway that they would not allow his name to appear on the ballot as a candidate for Governor.

Ridgeway then filed this suit for a writ of mandamus to compel the appellees to perform the ministerial duty of certifying his name for inclusion on the ballot. By answer the appellees interposed Ridgeway’s asserted ineligibility to serve as a defense to the suit. The chancellor sustained this defense and refused to issue the writ of mandamus.

The case presents two questions, both of public importance: First, is Ridgeway eligible to hold public office if he should be elected? Second, if he is in fact ineligible, is this the proper procedure for preventing him from becoming a candidate for the office?

Upon the first question we are unanimously of the opinion that Ridgeway is not eligible to hold public office. The language of Article 5, Section 9, is too clear to be misunderstood: "No person hereafter convicted of embezzlement of public money, bribery, forgery or other infamous crime shall be eligible to the General Assembly or capable of holding any office of trust or profit in this State.”

The appellant argues that this section of the Constitution is inapplicable to him for the reason that in 1959 he received from the acting chief executive of the State a pardon which by its language purported to restore "all civil and political rights which were lost as a result of the conviction,” and that therefore he is again eligible to hold public office.

This argument is without merit. Under the plain language of the Constitution it is the fact of conviction that disqualifies a person from holding public office. There is no intimation whatever that the pardoning power conferred on the Governor by Article 6, Section 8 is intended to permit such an act of clemency to supersede the clear mandate of Article 5, Section 9, which we have quoted. It is a familiar rule that where there is a specific provision, such as the disqualification that results from conviction of an infamous crime, such a provision must be given effect as against a general clause, such as the grant of the pardoning power. Hodges v. Dawdy, 104 Ark. 583, 149 S. W. 656.

• Despite Ridgeway’s ineligibility to hold public office, the second question is completely controlled by our decision in Irby v. Barrett, 204 Ark. 682, 163 S. W. 2d 512, a case directly in point. There, as here, the party chairman and secretary refused to certify Irby as a candidate (for state senator) because he had been convicted of embezzling public funds. There, as here, Irby brought suit for a writ of mandamus, which the trial court denied.

We reversed the decree holding that the writ should be granted. We held that the party chairman and secretary do not have the judicial authority to determine that a candidate is ineligible to hold public office and for that reason to refuse to place his name upon the ballot. Our reasoning is clearly set forth in this paragraph from the opinion:

“If the chairman and secretary of the committee have the right to say that because of the decision of this court petitioner is ineligible to be a candidate for office, they may also say, in any case, that for some other reason a candidate is ineligible. For instance, it has been held by this court in many election contests that one must pay his poll tax; that he must do so after proper assessment in the time and manner required by law, and that otherwise he is not eligible even to vote, and unless he were a voter he could not hold -office. So with other qualifications, such as residence. May this question be considered or decided by the. chairman and secretary of the committee1? It may be that such power can be conferred upon them by laws of this state or the rules of the party; but it is certain that this has not yet been done. If this can be done, and should be done, the door would be opened wide for corrupt and partisan action. It might be certified that a prospective candidate has sufficiently complied with the laws of the state and the rules of a political party to become a candidate, and, upon further consideration, that holding might be recalled;. and this might be done before that action could be reviewed in a court of competent jurisdiction and reversed in time for the candidate to have his name placed on the ticket. It would afford small satisfaction if, after the ticket had been printed with the name of the candidate omitted, he have a holding by the court that the name should not have been omitted.” -

In discussing a similar ruling by the Supreme Court of Kentucky in Young v. Beckham, 115 Ky. 246, 72 S. W. 1092, we said:

“The Kentucky court did not consider the correctness of the committee’s finding that Beckham was ineligible to be a candidate. That question was pretermitted and.not even referred to, the opinion being based solely upon the question of the power of the committee to exclude the name of a candidate. In holding that the committee did not have this power it was there said: ‘We are of the opinion that the committee had no right to raise the question of the appellee’s eligibility to reelection to the office of governor. The governing authority of the party has no right to determine who is eligible under the Taws of the land to hold offices. It can call primary elections and make proper rules for their government, but has no right to say who is eligible to be a candidate before the primary. The persons who áre entitled to vote at the primary are the ones to determine who shall be selected as their candidate for a particular office. If the committee can say who is not eligible to be nominated as party’s candidate for office, they can, on the very last day before the ballots are printed, refuse to allow a person’s name to go on the ballot upon the pretext that he is ineligible, and thus prevent his name from appearing upon the official ballot. They could thus destroy one’s prospect to be nominated, for the rules of procedure in courts are necessarily such that no adequate relief could be afforded the party complaining, if at all, until after the primary election had been held. If the committee or governing authority has the authority to decide the question as to who is eligible to hold an office or be a candidate before a primary election, then they would have a discretion and judgment to exercise that could not be exercised by a mandamus. The most that could be done by such a writ would be to compel them to act upon the question.’ ”

We think the Irby case to be sound and refuse to overrule it. Under the authority of that case the appellees, in their capacity as party officers, are not the proper persons to question Ridgeway’s eligibility to hold office.

The decree is reversed and the cause remanded with directions that the writ be issued. This action is without prejudice to the institution of a proper proceeding.


author: Carleton Harris, Chief Justice.

text:
    Berry v. City of Springdale.
    5111
    381 S. W. 2d 745
    Opinion delivered September 14, 1964.

      James M. Blair, for appellant.
    ISTo brief filed for appellee.
   Carleton Harris, Chief Justice.

The issue in this case is whether appellant, Homer Berry, was guilty of public drunkenness. On August 3,1963, Berry was apprehended by Patrolman Bill Smith of the City of Spring-dale, and charged with the offense of drunkenness. Smith testified that about 1:45 A.M., he noticed appellant’s truck stopped near the regular driving portion of Highway No. 71 in Springdale. According to the officer’s testimony, the truck was not more than twenty-five feet, and not less than ten feet, from the paved portion of the highway, and was on the right of way. Smith’s attention was directed to the truck because of the fact that he noticed fire in the back end of the vehicle. Upon making examination, he found appellant, apparently asleep in the cab of the truck, and when the office!" opened the door, Berry almost fell out. Smith testified that he caught appellant to prevent his falling to the ground; that the latter could not stand on his feet; that he (Smith) could smell the odor of alcohol. Appellant identified himself as Major Homer Berry, stating that he was a “rain maker.” Smith testified that he assisted Berry to the patrol car; “I helped him by placing both of my hands under his arm pits and practically dragging him to the car.” Berry insisted that he wanted to “stoke the burners," but the officer could not find fuel of any kind in the back of the vehicle. According to the witness, Berry maintained that he had only “had two beers.” Appellant was convicted in the Municipal Court of Springdale of the offense of “Drunk on the highway,” and was fined. On appeal, the Circuit Court found appellant guilty of public drunkenness (trial by jury having been waived), and fined Berry $15.00 and costs.

From the judgment so entered comes this appeal.

It is first urged that the city failed to establish that appellant was guilty of any crime for which he could be lawfully prosecuted. This contention is based on the argument that Berry was not actually in a “public place”. at the time of his arrest.

The statute, in effect at the time of this offense, is Ark. Stat. Ann. § 48-943 (1947), and reads as follows:

“Any person who shall in any public place, or highway, or street, or in or upon any passenger coach, street car, or in or upon any vehicle commonly used for the transportation of passengers, or in or about any depot, platform, waiting station or room, drink any intoxicating liquor of any kind, or if any person shall be drunk or intoxicated in any public place, or in any passenger coach, street car, or other public place or building, or at any public gathering, or if any person shall be drunk and disorderly, he shall be guilty of a misdemeanor and upon conviction thereof shal be punished by a fine of not less than five [$5.00] dollars nor more than one hundred [$100.00] dollars, or by imprisonment for not less than five [5] days nor more than thirty [30] days, or by both such fine and imprisonment.”

There is no evidence that appellant was drinking in a public place, nor is there any contention that he was disorderly. The question, therefore, is whether one sitting in a motor vehicle ten to twenty-five feet from the traveled portion of the highway is in a ‘ ‘ public place ’ ’ as contemplated by the statute.

Under sound logic, as well as construction by other courts of statutes similar to our own, we have concluded that the answer to the above question is “yes.” Under statutes in some jurisdictions, there is a requirement that the intoxication must be coupled with boisterous or indecent conduct before the offender can be found guilty of the offense of public drunkenness, but it will be observed that our statute contains no such provision.

Certainly, Berry was not found in a private locality, and if he had been walking (or lying) alongside the highway at the same distance, no difficult question would be presented. Webster’s Third New International Dictionary defines “public” as “a place accessible or visible to all members of the community.” The Texas case of Walker v. State, 350 S. W. 2d 561, bears some similarity to the instant cause. In that case the defendant was found asleep in his automobile in a bar ditch along the highway, apparently having gone off the edge of the culvert while attempting to make a right hand turn. The sheriff found in the vehicle an open can of beer, which had turned over and spilled, and two unopened cans of beer. As here, the defendant contended that the evidence was insufficient to sustain a conviction, in that, at the time of the arrest, he was not in a public place. The Court of Criminal Appeals rejected this contention, and held that the evidence was sufficient to sustain the conviction. Earlier cases were cited, including Byrom v. State, 73 S. W. 2d 854, where the court said that a public place is'“a place where all persons are entitled to be.”

Here, appellant’s vehicle was ten to twenty-five feet away from the traveled portion of the road, and, according to the arresting officer, apparently had reached its final location through accident. Officer Smith testified:

“This truck was on the crest of a hill west of Fayetteville Lake. There is a flat place on top of this hill in the borrow pit and it appeared that this truck had just run out of the road up onto the embankment and rolled back down and come to a stop. It had been put in neutral, the engine was still running. My first thought was to charge the man with actually being in control of a vehicle while intoxicated.”

As heretofore mentioned,- the officer also testified that Berry stated .that.he had only had “two beers.” While we consider that the primary purpose of the statute against public drunkenness is to prevent annoyance to other members of the general public, the statute likewise serves as a protection to the offender himself. Here, Berry was asleep, with- the motor of the truck-' running and the window glass up. It is common knowledge that under similar circumstances many persons have been asphyxiated .when the exhaust system or heater of the vehicle was defective. Not only that, but the unattended fire, which occasioned the officer’s attention, could well have, had the wind risen, gotten out of control and burned the truck, or surrounding property. We think the recited testimony was sufficient to enable’ the trial court to find that Berry’s offense was committed “in a public place.”

It is also urged that the evidence was insufficient to establish appellant’s intoxication. We do not agree. In addition to the testimony of Smith, Joe Frank Sims, likewise a patrolman for the Springdale police, testified that he assisted Berry into the station; that the latter was unstable on his feet, and dirty; that his clothes were untended; that his shirttail was out, and that his language was incoherent. He likewise stated that the odor of alcohol from appellant’s breath and body was very strong, and it was his opinion that Berry “had been drinking considerably heavy.” Luther Shipley, desk operator at the police station, testified that the officers helped Berry through the door to the desk “holding him up. Helping him walk. ’ ’ Shipley stated that Berry, after entering the station, “said he was sick,” and requested a physician, and Dr. Joe Parker arrived approximately 45 minutes after the arrest had been made. The doctor stated that he could not say with reasonable certainty whether Berry was intoxicated or not, but that he could smell the alcohol.

We are of the view that the evidence herein set out, constituted sufficient and substantial evidence to support the judgment of the court. Counsel for appellant points out that the witnesses for the prosecution did not know Berry, and accordingly were not familiar with his normal actions. Of course, there could be incidents where a person, because of an affliction, or accident, could not walk straight — or talk coherently — but there is no showing that this was true in the present instance. It would hardly be logical to require that an arresting officer have a prior acquaintance with a defendant before he could qualify to testify that the individual arrested was drunk. We dare say that a large number of arrests for drunkenness, perhaps the majority, are made in instances where the arresting officer has no prior acquaintance with the person arrested. Officer Smith had served with the Springdale Police Department for seven years, and testified that he had experience in arresting violators for public drunkenness.

We find no reversible error.

Affirmed.

Johnson, J., dissents.

       According to appellant’s brief, for the purpose of inducing rain, Berry burned coke which had been infused with certain chemicals, with the intention that the resulting smoke would rise into the air and precipitate .moisture. The coke was burned in two barrels which were located in the back of appellant’s pickup truck.

       The fact that the Circuit Court technically found Berry guilty of public drunkenness, rather than “Drunk on Highway,” as charged in the Municipal Court, is not argued as constituting error in itself.

       Article 477, V.A.P.C., provides: “Whoever shall get drunk or be found in a state of intoxication in any public place, or at any private house except his own, shall be fined not exceeding one hundred dollars.”


author: Ed F. MoFaddin, Associate Justice’.

text:
    City of Little Rock v. Cavin.
    5-3370
    381 S. W. 2d 741
    Opinion delivered September 14, 1964.

      Joe Kemp and Jack Young, for appellant.

      John Jernigan, for appellee.
   Ed F. MoFaddin, Associate Justice’.

The City of Little Rock filed this suit for a declaratory judgment. The defendants were Wiley D. Cavin, Sr. and the other two members of the Pulaski County Board of Election Commissioners. The real question was whether a 1958 election in Pulaski County — involving the matter of voting machines — could be held effective under a 1962 constitutional amendment and a 1963 legislative enactment passed in pursuance to said amendment. The City claimed the affirmative, the defendants urged the negative; and the Chancery Court ruled against the City. The appeal was not filed in this Court until May 28, 1964; but the appellants, claiming public interest, insisted on a speedy decision, so we heard and decided the case on June 1, 1964, and announced affirmance of the Chancery decree, with the present Opinion to be filed later.

Events occurred in the following order:

(a) By Act No. 484 of 1949 the Arkansas Legislature provided that the use of voting machines could be submitted to a vote of the citizens of any county.

(b) At the General Election in 1958 the voting machine issue was submitted to the voters of Pulaski County, and a majority voted for such machines.

(c) Under Act No. 484 of 1949 the Shoup voting-machine was submitted to and approved by the State Board of Election Commissioners, but the Pulaski County Board of Election Commissioners failed and refused to take any action to provide such voting machines in Pulaski County.

(d) On October 21, 1959, the City of Little Rock filed suit in the Pulaski Circuit Court against the Pulaski County Board of Election Commissioners, praying for mandamus to require the use of voting machines. The Circuit Court refused the prayed relief; and the City appealed to this Court.

' (e) In the case of City of Little Rock v. Henry (No. 5-2370), 233 Ark. 432, 345 S. W. 2d 12, decided on April 10, 1961, this Court held that the said Shoup machine did not comply with the requirements of Article III, Section 3 of the Arkansas Constitution. That case, referred to as “the first case,” became final when the petition for rehearing was denied on May 1, 1961.

(f) Rather than try to find a voting machine that would fulfill the constitutional requirements pointed out in our said Opinion, the proponents of voting machines initiated' a proposed constitutional amendment, which was submitted to and adopted by the voters of the- State at the 1962 General Election as Amendment No. 50, and which, in its entirety, reads:

“§1. REPEAL OF ARTICLE III, SECTION 3. —Article III, Section 3, of the Constitution of the State of Arkansas is hereby repealed and the following section is substituted therefor.
“§2. ELECTIONS BY BALLOT OE VOTING MACHINES AUTHOEIZED. — All elections by the people shall be by ballot or by voting machines which insure the secrecy of individual votes.
‘'‘ § 3. NUMBEEING AND EECOEDING OF BALLOTS — DISCLOSURE ÓF VOTE PEOHIBITED — EXCEPTION. — In elections by ballot every ballot shall be numbered in the order in which it is received, the number shall be recorded by the election officers on the list of voters opposite the name of the elector who presents the ballot, and the election officers shall be sworn or affirmed not to disclose how any elector voted unless required to do so as witness in a judicial proceeding or a proceeding to contest an election.
“§4. VOTING MACHINES. —Voting machines may be used to such extent and under such rules as may be prescribed by the General Assembly.
“§5. EFFECTIVE DATE. —This amendment shall take effect and be in force from January 15, 1963.”

(g) On February 14, 1963, there was approved Act No. 53 of 1963, captioned:

“AN ACT Implementing Constitutional Amendment No. 50, Authorizing Use of Mechanical Voting Machines in Voting Precincts for Eecordirig and Computing the Vote at Party Primary and General Elections and Other Elections Authorized by the State Board of Election Commissioners or County Boards of Election Commissioners, Authorizing Cities, Counties or the State to Furnish Such Mechanical Voting Machines to the Various Precincts and Political Subdivisions Situated in the State of Arkansas, Providing for the Purchase of Such Maclaines by the Various Cities, Counties or State, Authorizing Methods of Payment, Authorizing the State Board of Election Commissioners to set Standards of Machines to be Used in any Election, in the State • of Arkansas and the Purchase Thereof; and for Other Purposes.”

(li) On October 30, 1963, tbe City of Little Rock filed tbe present suit in the Pulaski Chancery Court against the Pulaski County Board of Election Commissioners, praying — as aforesaid — for a declaratory judgment to the effect that the vote in the 1958 election held in Pulaski County on the issue of voting machines was valid and still binding on the County Board of Election Commissioners and that the effects of such election and the subsequent constitutional amendment and Legislative enactment were to require steps to be taken to obtain voting machines for use in Pulaski County, or particularly for use in the City of Little Rock.

(i) The Pulaski County Board of Election Commissioners resisted the suit, and on May 15,1963, the Pulaski Chancery Court denied any relief to the City of Little Rock and this appeal resulted, being filed in this Court on May 28, 1964.

' With the order of events thus understood, we come to the real question which, as previously indicated, is whether the City of Little Rock may use the. 1958 election results under Act 484 of 1949 as compliance with Act 53 of 1963. The City insists that the 1949 Act was valid; that the 1958 election was held under that Act; that the Constitutional Amendment No. 50 and the 1963 Legislative enactment were all matters in furtherance of the 1949 Act; and that therefore there is no necessity for another election. The Pulaski County Board of Election Commissioners insists that the decision of this Court in 1961 concluded the first case; that Amendment No. 50 was adopted to ‘ ‘ overrule ’ ’ that case; that Act 53 of 1963, being a complete reenactment of the 1949 Act, thereby impliedly repealed the 1949 Act; and that the 1963 Act is prospective and a new election must be held in accordance with the provisions of the 1963 Act.

For any one of several reasons we agree with the result reached by the Chancery Court; but the stating of one reason will suffice. In City of Little Rock v. Henry, supra (the first case), we held that the Shoup voting machine did not comply with the requirements of Article III, Section 3 of our Constitution; and it was to overcome the effect of that decision that the proponents of voting machines obtained the adoption of Amendment No. 50, which eliminated the language in Article III, Section 3 of the Constitution, which had ruled out the Shoup voting machine. This Amendment No. 50 was neither curative nor retrospective: it specifically provided in Section 5 thereof: ‘ ‘ This amendment shall take effect and be in full force from January 15, 1963.” The amendment also provided in Section 4: “Voting machines may be used to such extent and under such rules as may be prescribed by the General Assembly. ’ ’ Thus, the amendment did not become effective until January 15, 1963, and thereafter the Legislature by Act No. 53 of 1963 prescribed for the use of voting machines. If the Amendment No. 50 had been intended to be retrospective or curative it certainly would not have contained (a) a future effective date, or (b) provisions that the Legislature “may” prescribe for voting machines. In short, the Amendment No. 50 was prospective and did not validate elections held before its effective date.

It is a well recognized rule of constitutional law that the adoption of a constitutional amendment which merely permits the enactment of a statute of a certain type does not, of itself, validate such a statute which was void when enacted before the adoption of the constitutional amendment. Whetstone v. Slonaker (Neb.), 193 N. W. 749; Plebst v. Barnwell (La.), 148 So. 2d 583; Northern Wasco v. Wasco County (Ore.), 305 P. 2d 766. See annotation in 171 A.L.R. 1070 entitled: “Removal or suspension of constitutional limitation as affecting statute previously enacted”; and see also 16 C.J.S. p. 140, “Constitutional Law” § 45. If a bad statute is not validated retrospectively by a subsequent constitutional amendment, then likewise, a bad voting machine is not validated retrospectively by a subsequent constitutional amendment which would allow the Legislature to provide for voting machines of a particular kind. Stated another way, if the subsequent adoption-of a constitutional amendment, prospective in effect, does not validate preexisting statutes, then, likewise, the subsequent adoption of Amendment No. 50 did not validate the election concerning the Shoup voting machine, which machine was held in our first case to be lacking in constitutional compliance.

The City of Little Rock cannot claim the Amendment No. 50 as effective to validate a 1958 election for a voting machine that was not in compliance with the constitutional requirements at the time of the 1958 election. Those desiring voting machines must now proceed under Amendment No. 50 and Act No. 53 of 1963, entirely forgetting the 1958 election.

The Chancery decree is affirmed.

       The concluding paragraph of that opinion reads: “The trial court declared Act 484 to be unconstitutional, but we think the declaration should be only that the use of the Shoup machine in its present form is contrary to the constitution. The machine’s defect is that it does not make a record of individual votes. Act 484 is silent upon that point, however, and consequently the act cannot be said to violate the constitution. We perceive no constitutional objection to a machine conforming to the specifications of Act 484 and having the additional characteristic that is lacking in the Shoup machine.”

       The emergency clause reads:
      “EMERGENCY CLAUSE: It is hereby determined that Amendment Fifty (50) to the Constitution of the State of Arkansas, as adopted by the people of the State, should be implemented by the foregoing Act at the earliest possible date in order that Cities, Counties, and the State may, if they so desire, utilize the provisions of this Act, and it is hereby declared by the General Assembly of the State of Arkansas that it is advantageous and desirable that the foregoing enabling Act be adopted at the earliest practicable date. An emergency is, therefore, declared to exist, and this Act being necessary for the preservation of the public peace, health and safety, which take effect and be enforced from the date of its approval.”