author: John A. Fogleman, Justice.

text:
    Charles N. McKENZIE et al v. Myrtle BURRIS et al
    73-73
    500 S.W. 2d 357
    Opinion delivered October 22, 1973

      Williams & Gardner, Wright, Lindsey & Jennings, and Smith, Williams, Friday, Eldredge ér Clark, for petitioners.

      Krivcherér Cox and Mobley & Smith, by: Oscar Fend-ler, for respondents.
   John A. Fogleman, Justice.

Petitioners are defendants in a medical malpractice action brought by Myrtle and Billy D. Burris in the Circuit Court of Pope County. They seek by writ of certiorari to quash the order of that court granting the motion of Mobley and Smith, as attorneys for the Burrises, to enter the name of James S. Cox as an attorney of record in this case to assist them, as associate counsel, in all phases of trial of the action. Mobley and Smith is a firm of attorneys licensed to practice in Arkansas and residing in Pope County. It was employed by the Burrises and, pursuant to that employment, filed a complaint. After answer had been filed by petitioners, Mobley and Smith filed the motion in question. Petitioners then moved to strike the order granting the motion of Mobley and Smith, alleging that this case was not one wherein a nonresident attorney was seeking admission for a single or particular case because, they alleged, Cox was practicing law in Arkansas without having been licensed to practice in Arkansas. This motion was denied.

It is admitted that Cox is a resident of Memphis, Tennessee, where he maintains his office for the practice of law and that he has been admitted to practice law in all courts of the state of Tennessee, but has not been licensed in any other state. Cox had previously participated, as associate counsel in one personal injury case, a will contest, and six medical malpractice actions filed in Arkansas. He had also consulted with Arkansas attorneys with respect to two other medical malpractice cases in which no suit has been filed.

It has been suggested that the petitioners, as the adversaries of the plaintiffs who would be represented by Cox, have no standing to question, on certiorari, the right of Cox to participate in the trial, or the right of respondents or their attorneys, Mobley and Smith, to employ Cox as an associate attorney in the case. It has been recognized in this state for 135 years that a party whose interest might be jeopardized by prosecution of a suit against him may require even a regularly licensed attorney, duly admitted to practice in the courts of this state, to show his authority to represent an adversary. Tally, Admr. v. Reynolds, 1 Ark. 99. See also, Cartwell v. Menifee, 2 Ark. 356. This right has subsequently been recognized in Pekin Stave & Mfg. Co. v. Ramey, 104 Ark. 1, 147 S.W. 83; Red Bud Realty Co. v. South, 153 Ark. 380, 241 S.W. 21; and Nunez v. O. K. Processors, Inc., 238 Ark. 429, 382 S.W. 2d 384. It is widely held in other jurisdictions that proceedings in a suit instituted or conducted by one not entitled to practice are a nullity, and if appropriate steps are timely taken the suit may be dismissed, a judgment in the cause reversed, or the steps of the unauthorized practitioner disregarded. See Bennie v. Triangle Ranch Co., 73 Colo. 586, 216 P. 718 (1923); Niklaus v. Abel Construction Co., 164 Neb. 842, 83 N.W. 2d 904 (1957); Landis v. Superior Ct., 232 Cal. App. 2d 548, 42 Cal. Rptr. 893 (1965); City of Downey v. Johnson, 69 Cal. Rptr. 830 (263 Cal. App. 2d 775) (1968); Stevens v. Jas. A. Smith Lumber Co., 54 S.D. 170, 222 N.W. 665 (1929); Duysters v. Crawford, 69 N.J.L. 229, 54 A. 823 (1903); Hazard v. Phoenix Woodworking Co., 78 N.J. Eq. 568, 80 A. 456 (1911); Maso Holding Corp. v. Einstein, 17 N.Y.S. 2d 655 (1939); Goldstein v. Marriott, 14 Pa. D. & C. 635 (1929), followed in Winters v. Sheporwich, 83 Pa. D. & C. 484 (1952); Colton v. Oshrin, 155 Misc. 383, 278 N.Y.S. 146 :1934); Anderson v. Coolin, 27 Idaho 334, 149 P. 286 (1915); Application of County Collector, 1 Ill. App. 3d 707, 274 N.E. 2d 164 (1971); Leonard v. Walsh, 73 Ill. App. 2d 45, 220 N.E. 2d 57 (1966). See 7 C.J.S. 725, Attorney and Client, § 16b. The question was raised in Goldstein by a motion by the adverse party to strike the complaint. In Stevens, it was raised by the plaintiffs modon to strike an answer signed only by nonresident attorneys. In Colton, where the court said that prejudice was to be conclusively presumed, the question was presented by the adverse party’s motion for mistrial. In City of Downey v. Johnson and Application of County Collector, the question was raised by the appellate court. In North Laramie Land Co. v. Hoffman, 27 Wyo. 271, 195 P. 988 (1921), it was held that the adverse party might properly move to strike a petition signed only by nonresident attorneys not admitted to practice in the state. See also Bradley v. Sudler, 172 Kan. 367, 239 P. 2d 921 (1952), 174 Kan. 293, 255 P. 2d 650 (1953).

On the other hand, it has been held that if and when a nonresident attorney, not licensed to practice in the state where an action is pending, seeks to practice in that action, the matter of his qualification will then be addressed to the discretion of the trial court, State Bar of Texas v. Belli, 382 S.W. 2d 475 (Texas 1964), and that, unless a party in interest in the particular case presents the question of the disqualification of a nonreisdent attorney to appear as counsel for an adverse party, his entitlement to practice before the court will be presumed and the question of his disqualification waived. Walker v. Walker, 123 So. 2d 692 (Fla. Ct. App. 1960). See also, Freeling v. Tucker, 49 Idaho 475, 289 P. 85 (1930). Whichever view we might take of the situation, it only seems logical that an adverse party who could question the authority of the attorney to represent his opponent can also, to the same extent, question the authority of that attorney to practice in the state, or the particular court in which the litigation is pending, insofar as that case is concerned. We have no hesitancy in saying that petitioners’ challenge to Cox’s participation in the trial was appropriately and timely made in the trial court.

But it is contended by respondents that certiorari is not available as a remedy to review the action of the trial court in this regard, and they have moved to dismiss the petition for that reason, saying that there are other adequate remedies. Among those suggested are appeal from any eventual judgment against petitioners, complaint to the Supreme Court Committee on Professional Conduct, and prosecution for violation of Ark. Stat. Ann. § 25-101 et seq. (Repl. 1962).

It is true that these and other remedies might have been appropriate at the instance of the proper party, if the facts should justify such actions. Petitions seeking judicial action against persons charged with the unauthorized practice of law have been entertained by the courts when filed by a local bar association or one of its committees or when presented on behalf of the state bar or one of its committees. 7 Am. Jur. 2d 103, Attorneys at Law, § 89. See Arkansas Bar Association v. Union National Bank of Little Rock, 224 Ark. 48, 273 S.W. 2d 408. It seems well settled that unauthorized practice of law, at least by court appearances, is an unlawful intrusion and usurpation of the function of an officer of the court, and constitutes a contempt of any court in which or under whose authority or sanction the unauthorized person pretends to act. Bessemer Bar Association v. Fitzpatrick, 239 Ala. 663, 196 So. 733 (1940). See also, Freeling v. Tucker, 49 Idaho 475, 289 P. 85 (1930); New Jersey Photo Engraving Co. v. Schonert and Sons, 95 N.J. Eq. 12, 122 A. 307 (1923); State v. Barlow, 131 Neb. 294, 268 N.W. 95, 132 Neb. 166, 271 N. W. 282 (1936). While the pertinent authorities make it quite clear that contempt proceedings may be instituted by an interested bar association, or one of its committees, it does not seem that the right of an adverse litigant to initiate contempt procedures in such cases is so widely recognized. But there is respectable authority that the courts will not resort to this drastic remedy unless there is no other efficient remedy available and there is an evident need for summary action to protect the public and the jurisdiction of the court. See 7 C.J.S. 726, Attorney and Client, § 16c and cases cited. In any event, this remedy would undoubtedly be inadequate for petitioners, because it seems unlikely that punishment for contempt would be imposed after their motion to strike had been denied by the court in which the case was to be tried.

We have approved the granting of injunctive relief at the suit of the state bar association. See Arkansas Bar Association v. Union National Bank, supra; Beach Abstract & Guaranty Co. v. Bar Association of Arkansas, 230 Ark. 494, 326 S.W. 2d 900. This is generally accepted as a proper form of relief, particularly where class actions are involved. See Conway-Bogue Realty Co. v. Denver Bar Assn., 135 Colo. 398, 312 P. 2d 998 (1957); Hexter Title & Abstract Co., Inc. v. Grievance Committee, 5th Cong. Dist., State Bar of Texas, 142 Tex. 506, 179 S.W. 2d 946, 157 A.L.R. 268 (1944); Ann., 90 A.L.R. 2d 63, 14 A.L.R. 359. Here again the suitability and adequacy of this relief to an individual litigant to prevent his adversary from utilizing, as an attorney, a person not properly authorized to practice in the court wherein the litigation is pending are not so well recognized and are highly questionable, to say the least. This remedy is, generally speaking, an equitable one lying within the jurisdiction of our chancery courts. Harrison v. Knott, 219 Ark. 565, 243 S.W. 2d 642, 28 A.L.R. 2d 405; Kennedy, ex parte, 11 Ark. 598. The undesirability of one court’s interfering with proceedings pending in another of concurrent or coordinate jurisdiction and equal dignity, as a matter of comity, if not of jurisdiction, would seem to foreclose resort by petitioners to this form of remedy, even if it Were otherwise available to them. See Askew v. Murdock Acceptance Corp., 225 Ark. 68, 279 S.W. 2d 557; Butt v. Southwestern Distilled Products, Inc., 199 Ark. 750, 135 S.W. 2d 857; Wasson v. Dodge, 192 Ark. 728, 94 S.W. 2d 720; Wright v. LeCroy, 184 Ark. 837, 44 S.W. 2d 355. See also, Doss v. Taylor, 244 Ark. 252, 424 S.W. 2d 541.

Quo warranto on the relation of the proper authority has been found to be a proper vehicle for inquiry into the right of one who engages in the practice of law in a state, on the bases that this ancient writ is a demand by the state upon that individual to show by what right he exercised that privilege or franchise, and that unauthorized practice is a usurpation of an office or franchise. State v. Perkins, 138 Kan. 899, 28 P. 2d 765 (1934). We have recognized the writ as appropriate to prevent the unauthorized enjoyment of an office or franchise. Moody v. Lowrimore, 74 Ark. 421, 86 S.W. 400; State v. Evans, 3 Ark. 585, 36 Am. Dec. 468. It does not seem, however, that this writ could properly be invoked by petitioners. State v. Jones, 194 Ark. 445, 108 S.W. 2d 901; Moody v. Lowrimore, supra. It is intended, in such cases, only to subserve the interest and guard the rights of tbe whole community, and not private rights. Caldwell, Admr. v. Bell and Graham, 6 Ark. 227. If it could be invoked by petitioners, it may well have been rendered ineffective in these circumstances by our decision in Schirmer v. Light, 222 Ark. 693, 262 S.W. 2d 143. Even if available, quo warranto is not a remedy which excludes resort to other remedies, such as certiorari. Howell v. Howell, 213 Ark. 298, 208 S.W. 2d 22.

Resort to disciplinary proceedings against attorneys who associated Cox would certainly afford no remedy to petitioners, even if it were indicated. It is at least doubtful that Cox is subject to this action in Arkansas, even if the circumstances warranted it. Disciplinary action, however, is for the purpose of protecting the rights of the public in general and maintaining the public confidence in the bar, rather than protection of private rights or for inflicting punishment for a criminal offense. In re Silverstein’s Case, 108 N.H. 400, 236 A. 2d 488 (1967). Resort to criminal prosecution would only result in punishment of a violator but would accomplish nothing insofar as the participation of Cox in the trial is concerned, even if he should eventually be found guilty.

Certiorari cannot ordinarily be utilized as a substitute for appeal. No appeal from the present order would seem to be available until a final judgment against petitioners had been entered. State v. Nelson, 246 Ark. 210, 438 S.W. 2d 33. This does not mean, however, that actions of trial courts during the course of an action are not subject to review, in a proper case, by a court having supervisory jurisdiction, or that, in the exercise of that jurisdiction, resort may not be had to mandamus, prohibition or certiorari where appellate remedy is unavailable or inadequate. State v. Nelson, supra. Still, neither of these writs may be used to control the discretion of a trial court, correct its erroneous action, review findings of fact, correct an abuse of discretion, or review a finding or an erroneous conclusion drawn from the facts, except in matters going to the jurisdiction of the inferior tribunal, where there is a remedy by appeal. State v. Nelson, supra; North Little Rock Transportation Co. v. Sangster, 210 Ark. 294, 195 S.W. 2d 549; Sharum v. Meriwether, 156 Ark. 331, 246 S.W. 501; Howell v. Howell, supra; Fowler v. McKennon, 45 Ark. 94. See also, 14 Am. Jur. 2d 830, 831, Certiorari, §§ 64, 65, 66; 14 Am. Jur. 2d 782, Certiorari, §5.

The efficacy of the remedy by appeal after Cox had fully particpated in the trial is at least open to doubt. If it is available to petitioners, certiorari, in a court having supervisory jurisdiction, would still lie to quash a judgment which is void on its face, or to control the actions of an inferior tribunal which is proceeding illegally where no other mode of review has been provided. Reed v. Bradford, 141 Ark. 201, 217 S.W. 11; State v. Nelson, supra; McCain v. Collins 204 Ark. 521, 164 S.W. 2d 448. Petitioners argue that the circuit court was proceeding illegally. It can be argued, with some force, that the court’s order was void for want of jurisdiction or was in excess of its jurisdiction. The question is treated as jurisdictional in some states. See, e.g., Bradley v. Sudler, 172 Kan. 367, 239 P. 2d 921 (1952), 174 Kan. 293, 255 P. 2d 650 (1953). See also, Ebeling v. Continental Illinois National Bank & Trust Co. of Chicago, 272 Cal. App. 2d 724, 77 Cal. Reptr. 612 (1969); Herndon v. Lee, 281 Ala. 61, 199 So. 2d 74 (1967); Leonard v. Walsh, 73 Ill. App. 2d 45, 220 N.E. 2d 57 (1966); City of Downey v. Johnson, 263 Cal. App. 2d 775, 69 Cal. Rptr. 830 (1968).

In State v. Nelson, 246 Ark. 210, 438 S.W. 2d 33, we quashed, on certiorari, an order of a chancery court appointing a master on the ground that the court had proceeded illegally in that the appointment was not only premature but too comprehensive in scope. In Howell v. Howell, supra, we vacated divorce decrees as void, holding that they were rendered by a person who was neither a judge de jure nor de facto, because of the invalidity of an act purporting to create a second division of a chancery circuit. In doing so, we actually treated an appeal as a petition for certiorari. Our language there is rather appropriate to this situation. We said:

The right of a supervising court to deal with a particular proceeding in a manner consistent with justice and to thereby expeditiously dispose of issues is unquestioned where recourse to the procedure is not prejudicial to one who is not immediately before the appellate court and where there is no statutory or constitutional impediment. If the result arrived at is the only one that in any event could be reached, the party indirectly affected is not injured. To this end appeal may be treated as certiorari. The writ may not be used as a substitute for appeal. It is insufficient because only the face of the record and matters of which the appellate court takes judicial notice may be considered. But it does not follow that an appeal cannot be treated as certiorari; and this discretion to convert and to apply practical processes arises in those cases where through inadvertence or a lack of procedural understanding the wrong course has been pursued where the judgment or decree, however just and free from error, cannot stand because it does not in fact have judicial support.

The disposition we make of this case will render it unnecessary for us to actually decide that certiorari is proper in this instance. It is the only remedy invoked here by petitioners, and we will apply its intrinsic limitations on our review. Without actually deciding whether appeal is the proper remedy and treating the matter as if certiorari at this stage of the proceedings would be appropriate, we decide this case, as we did Stevenson v. McDonald, 77 Ark. 208, 91 S.W. 300, on the basis that petitioners are not entitled to relief by certiorari on the record presented. We find that the circuit court was not, on the face of the record, without jurisdiction to enter the order permitting Cox to proceed in this case and did not act in excess of its jurisdiction or proceed illegally in granting this permission. See State v. Nelson, supra. In this connection, it should be emphasized that, in denying petitioners’ motion to strike, the court only entered Cox’s name as attorney of record “to be associated by Mobley and Smith * * * and to assist in all phases of trying the herein cause of action.”

The narrow question presented here, then, is whether the Circuit Court of Pope County had authority to permit a nonresident attorney, not licensed to practice in Arkansas, to participate in the trial of this case in that court, representing a litigant in association with an attorney who is a resident licensed to practice, and regularly engaged in the practice of, law in this state, even though the nonresident attorney has, in similar circumstances, engaged in the trial, or preparation for trial, or settlement negotiations of numerous other cases in Arkansas. We hold that it did.

Limiting our examination to the face of the record in this proceeding does not mean that we inspect only the pleadings and the court’s order. The record in a case such as this includes such pertinent matters as the answer of Cox to petitioners’ interrogatories, admissions contained in his affidavit filed,, in the circuit court, the official docket sheet of the circuit court showing enrollment of Cox in the court and his payment of a fee of $1.00 in accordance with Ark. Stat. Ann. §§ 25-108— 110 (Repl. 1962). Where the evidence adduced is pertinent to the determination of the lower tribunal’s authority to take the action questioned, it is a part of the record. Stevenson v. McDonald, 77 Ark. 208, 91 S.W. 300; McCain v. Collins, 204 Ark. 521, 164 S.W. 2d 448.

Petitioners contend that Ark. Stat. Ann. § 25-108, et seq., insofar as- applicable here, should be construed to be only a codification of the common law admission pro hac vice, i.e., admission of a nonresident attorney for the purpose of trial of a particular case only. As such, they say, it is applicable only in an isolated instance and cannot be construed to permit such an extensive or systematic practice as Cox has conducted in Arkansas, and this court should find that, because Cox has used the statute as a cloak for an extensive unlicensed practice of law in Arkansas, he should not be permitted to proceed in this case. In the alternative, only if we cannot so find, petitioners ask that we declare Ark. Stat. Ann. § 25-108, et seq., unconstitutional as a legislative invasion of the sphere of the judicial branch and contrary to Amendment 28 of the Arkansas Constitution, as well as a violation of Article II, §§ 3 and 18, of the Arkansas Constitution and the Fourteenth Amendment to the United States Constitution. We find no basis for the relief sought by petitioners, even if we. concede that their construction of the statutes is correct, and we find no merit in their attack on the constitutionality of the statutes. In order to approach the matters raised by petitioners, we find it necessary to treat the statutes, and their status, effectiveness and function without considering each point severally.

Amendment 28 certainly put to rest for all time any possible question about the power of the courts to regulate the practice of law in the state. There can be no doubt that the power of the judicial department, acting through this court, is, in this respect, exclusive and supreme under this amendment, if the power was not already inherent in the courts. This does not mean, however, that adoption of this amendment had the effect of invalidating every act of the General Assembly bearing upon the subject, particularly those passed prior to the effective date of the amendment, if they are not necessarily in irreconcilable conflict with or repugnant to the amendment. An existing statute is superseded by a subsequent constitutional amendment only when there is an irreconcilable conflict or the statute is necessarily repugnant to the new constitutional provision. Vance v. Johnson, 238 Ark. 1009, 386 S.W. 2d 240; Priest v. Mack, 194 Ark. 788, 109 S.W. 2d 665; Polk County v. Mena Star Company, 175 Ark. 76, 298 S.W. 1002; Kirk v. High, 169 Ark. 152, 273 S.W. 289, 41 A.L.R. 782; Hodges v. Dawdy, 104 Ark. 583, 149 S.W. 656. See also, Henley v Goggin, 241 Ark. 348, 407 S.W. 2d 732; Lewelling v. Board of Directors of Mansfield School District, 240 Ark. 237, 398 S.W. 2d 665; Cone v. Garner, 175 Ark. 860, 3 S.W. 2d 1. A basic and fundamental rule applicable in consideration of the effect of both statutes and constitutional amendments is that repeal by implication is not looked upon with favor and is never allowed by the courts except where there is such an invincible repugnancy between the former and later provisions that both cannot stand together. See Lybrand v. Wafford, 174 Ark. 298, 296 S.W. 729.

Since this court has not taken any action to regulate the extension of the right of comity to a nonresident attorney, and the pertinent sections of the statute are not necessarily repugnant to Amendment No. 28, we hold that the particular sections of the statute involved are not unconstitutional, insofar as they apply to the facts in this case. Statutes which provide a penalty for unauthorized practice of law by a nonresident of the forum state have been held to be cumulative to the powers of the courts to punish. Bessemer Bar Association v. Fitzpatrick, 239 Ala. 663, 196 So. 733 (1940). It has also been said that statutes relating to the practice of law are merely in aid of, but do not supersede or detract from the power of the judicial department to define, regulate and control the practice of law, and that the legislative branch may not, in any way, hinder, interfere with, restrict or frustrate the powers of the courts. Wallace v. Wallace, 255 Ga. 102, 166 S.E. 2d 718 (1969); State v. Perkins, 138 Kan. 899, 28 P. 2d 765 (1934); Automobile Club of Missouri v. Hoffmeister, 338 S.W. 2d 348 (Mo. Ct. App. 1960); Hoffmeister v. Tod, 349 S.W. 2d 5 (Mo. 1961); Meunier v. Bernich, 170 So. 567 (La. Ct. App. 1936); State v. Barlow, 131 Neb. 294, 268 N.W. 95 (1936). See also, Clark v. Austin, 340 Mo. 467, 101 S.W. 2d 977 (1937); 7 Am. Jur. 2d 44, Attorneys at Law, § 2. The Court of Appeals for the Eighth Circuit has appropriately held that the courts may, and frequently do, honor implementing legislation, but are not bound to do so. Feldman v. State Board of Law Examiners, 438 F. 2d 699 (1971). See also, Martin v. Davis, 187 Kan. 473, 357 P. 2d 782 (1960); Meunier v. Bernich, supra.

In subsequent legislation, Act 438 of 1961 [Ark. Stat. Ann. §§ 25-215 — 217 (Repl. 1962)], the General Assembly has given specific recognition to the principle by declaring that act to be in aid of and subordinate to the right of this court to regulate and define the practice of law and to prevent and prohibit unauthorized or unlawful practice thereof by appropriate rules, orders and penalties. We seem definitely to have chosen to recognize and apply certain statutes which are not necessarily inconsisent with, or repugnant to, court rules, and do not hinder, interfere with, frustrate, pre-empt or usurp judicial powers, at least when the statutes were, at the time of enactment, clearly within the province of the legislative branch and when the courts have not acted in the particular matter covered by the statute. Arkansas Bar Assn. v. Union National Bank, 224 Ark. 48, 273 S.W. 2d 408. While the constitutionality of the act now before us was not involved in Letaw v. Smith, 223 Ark. 638, 268 S.W. 2d 3, this court applied it, as then written, as a valid statute. Upon adoption of "Rules Regulating Professional Conduct of Attorneys at Law,” April 24, 1939, soon after the adoption of Amendment 28, this court provided in Rule IX that those rules should not be deemed exclusive of, but as supplemental to, the statutes of the State of Arkansas and the Committee (now Supreme Court Committee on Professional Conduct) may invoke the statutes or proceed under those rules if it should elect to do so. We have, however, held that statutes in conflict with rules adopted by this court under authority given by Amendment 28 were superseded by the rules. Armitage v. Bar Rules Committee, 223 Ark. 465, 266 S.W. 2d 818. But, we clearly indicated that we would recognize and apply a statute making certain advertising practices unlawful with reference to the practice of law in Arkansas Bar Assn. v. Union National Bank, supra, saying:

In many jurisdictions, as in this state, the judiciary has on occasions apparently given approval to certain enactments by the legislative body, but these enactments are considered to be in aid of the judicial prerogative to regulate the practice of law and not to be in derogation thereof.

When viewed in the light of the narrow question presented here, the statute constitutes little more than a recognition of the usual practice of permitting an attorney, licensed and in good standing in a sister state, to appear and participate in the trial or argument of a particular case. The granting of such permission, without or even in spite of a statute, seems to be within the inherent power of the courts and is a rather general practice. See Freeling v. Tucker, 49 Idaho 475, 289 P. 85 (1930); State v. Perkins, 138 Kan. 899, 28 P. 2d 765 (1934); Anderson v. Coolin, 27 Idaho 334, 149 P. 286 (1915); 7 C.J.S. 723, Attorney and Client, § 15, 7 Am. Jur. 2d 48, Attorneys at Law. This practice extends comity as a courtesy, not as a right. Mason v. Pelkes, 57 Idaho 10, 59 P. 2d 1087 (1936). A lawyer who does not confine his practice to the limits of such an admission is subject to appropriate state action for unauthorized practice. Sanders v. Russell, 401 F. 2d 241 (5th Cir. 1968).

The state has legitimate interests to be weighed in considering pro hac vice admissions in order to maintain a high level of professional ethics, to assure a high quality of representation in the courts and to protect the economic interests of the regularly licensed resident attorneys of the state. In order to properly protect these interests and to expedite the administration of justice, the courts are concerned with the qualifications and conduct of counsel, their availability for service of papers and amenability to disciplinary proceedings. But these interests do not justify an arbitrary numerical limitation on the number of such appearances by an attorney in the state, where the nonresident attorney associated with resident counsel is not involved in a general practice of law, particularly where the nonresident practitioner has developed some degree of expertise in the particular field of litigation in which he is engaged. Sanders v. Russell, supra. See also, Meunier v. Bernich, 170 So. 567 (La. Ct. App. 1936); Freeling v. Tucker, supra; Hulse v. Criger, 363 Mo. 26, 247 S.W. 2d 855 (1952); 7 C.J.S. 712, Attorney and Client, § 6 a and c.

As we view the matter, § 25-108, at least as it now reads and as applied in the case before us, is not in conflict with Amendment 28 or any rule promulgated by this court. If Cox attempts to participate in other cases in reliance upon his “enrollment” in connection with this case, quite a different matter will be presented. Insofar as this case is concerned, he has complied with the terms and conditions imposed by the court in which the case is pending, and we need not consider the effect of Ark. Stat. Ann. § 25-111, if indeed it has survived the rules of this court governing admission to the bar and the 1955 amendment to Ark. Stat. Ann. § 25-108.

Not only are we unable to say that Ark. Stat. Ann. § 25-108 is unconstitutional for conflict with Amendment 28, we are also unable to say that it is invalid under either Section 3 or 18 of Article II of the Constitution of Arkansas, or the Fourteenth Amendment to the United States Constitution.

It is true that the right to practice law is a privilege in the nature of a franchise. Martin v. Davis, 187 Kan. 473, 357 P. 2d 782 (1960); State v. Perkins, 183 Kan. 899, 28 P. 2d 765 (1934); Gordon v. Clinkscales, 215 Ga. 813, 114 S.E. 2d 15 (1960); In re Bailey, 30 Ariz. 407, 248 P. 29 (1926); Freeling v. Tucker, supra; New Jersey Photo Engraving Company v. Schonert & Sons, 95 N.J. Eq. 12, 122 A. 307 (1923); In re Co-operative Law Company, 198 N.Y. 479, 92 N.E. 15, 139 A.S.R. 839 (1910). See Wernimont v. State, 101 Ark. 210, 142 S.W. 194. It is not a matter of grace. Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S. Ct. 752, 1 L. Ed. 2d 796 (1957); Raffael-li v. Committee, 7 Cal. 3d 288, 101 Cal. Rptr. 896, 496 P. 2d 1264 (1972). But it is not an absolute, natural or constitutional right. Wernimount v. State, supra; Gordon v. Clinkscales, supra; West Virginia State Bar v. Earley, 144 W. Va. 504, 109 S.E. 2d 420 (1959); In re Bailey, supra.

The right to practice in state courts is not a privilege or immunity under the Fourteenth Amendment to the United States Constitution. In re Lockwood, 154 U.S. 116, 14 S. Ct. 1082, 38 L. Ed. 929 (1894); Bradwell v. Illinois, 83 U.S. 130, 21 L. Ed. 442 (1872). See also, Starr v. State Board of Law Examiners, 159 F. 2d 305 (7th Cir. 1947); Ruckenbrod v. Mullins, 102 Utah 548, 133 P. 2d 325 (1943). It is only when there is no rational basis for denying the right or privilege to practice in a state or there is arbitrary action or invidious discrimination by state officers excluding one from the practice that the “due process” and “equal protection” clauses of the Fourteenth Amendment come into play. Schware v. Board of Bar Examiners, supra; Konigsberg v. State Bar of California, 353 U.S. 252, 1 L. Ed. 2d 810, 77 S. Ct. 722 (1957). See also, Martin v. Davis, 187 Kan. 473, 357 P. 2d 782 (1960), appeal dism. sub nom Martin v. Walton, 368 U.S. 25, 82 S. Ct. 1, 7 L. Ed. 2d 5 (1961). But it was recognized in Konigsberg, as it had always been, that states are free to determine who may practice in their courts, so long as the power to do so is not exercised in an arbitrary or discriminatory manner. See also, Feldon Saier v. State Bar of Michigan, 293 F. 2d 756 (6th Cir. 1961); Starr v. State Board of Law Examiners, 159 F. 2d 305 (7th Cir. 1947). It was acknowledged in Theard v. United States, 354 U.S. 278, 77 S. Ct. 1274, 1 L. Ed. 2d 1342 (1954), that the limits of review of state action in such matters were set in Konigs-berg and Schware, and that they were narrow. In dismissing an appeal from Martin v. Davis, supra, wherein rules requiring that a Kansas attorney who regularly practiced in another state must associate local counsel before appearing in the courts of Kansas were held not violative of the equal protection and due process clauses, the Supreme Court of the United States found a want of a substantial federal question. The court found the rules, both on their face and as applied, within the competence of the Supreme Court of Kansas and not beyond the allowable range of state action under the Fourteenth Amendment. The United States Supreme Court said that the fact that the rules may result in “incidental individual inequality” did not make them offensive to the Fourteenth Amendment. Martin v. Walton, supra. This seems to be a complete answer to petitioners’ argument that somehow nonresident attorneys, who presumably have satisfied the courts of their own states as to competence and moral qualifications, are favored in Arkansas. Whatever deficiencies exist under the statute may certainly be remedied by “terms, conditions and requirements prescribed by rulés of practice” of the individual courts, and if they are not, the rule-making power of this court may be invoked.

Since the practice of law is a profession licensed as a privilege or franchise and its members officers of the court and a necessary arm of the judicial system, it is not a natural right, the regulation of which is limited by the state constitution. See Gosnell v. State, 52 Ark. 228, 12 S.W. 392. There is certainly no indication that the statute and the action of the court in this case are in any way discriminatory and that the same rights and privileges accorded Cox thereunder would not have been accorded to all others similarly situated upon the same terms. In denying the motion to strike, the circuit judge found that it had been the custom and practice of that court to allow nonresident attorneys to be admitted for a particular case.

We find no merit in petitioners’ arguments on this point and nothing in Ark. Stat. Ann. § 25-108 or the circuit court’s action in this case which violates either the state or federal constitution.

The writ is denied.

       But see, The State Bar of Texas v. Belli, 382 S.W. 2d 475 (Tex. 1964), where it was held that injunctive relief would not be granted at the suit of the state bar against an individual nonresident attorney who was not then participating or offering to participate in the trial of a case in the forum state.

       But see, W. R. Wrape Stave Company v. Arkansas State Game and Fish Commission, 215 Ark. 229, 219 S.W. 2d 948, wherein it was held that since the purpose of Constitutional. Amendment 35, making the State Game and Fish Commission an independent constitutional agency of government, seemed to have been to cover the whole subject and to either provide, or leave to the commission, methods for reaching its ends, the amendment superseded all prior legislative acts, whether directive or restrictive in nature. Specific conditions precedent for suits in eminent domain by the commission were the subject of the act there held unconstitutional. Although the amendment provided that the power of eminent domain be exercised in the same manner as provided for exercise of the power of the State Highway Commission, the opinion was not premised on this specific language. Furthermore, there is no mention in the opinion of the sentence: “All laws now in effect shall continue in force until changed by the Commission.”


source: Caselaw Access Project

license: Public Domain

text:
    V. G. PEEK v. Hoyt MEADORS
    73-109
    500 S.W. 2d 333
    Opinion delivered October 22, 1973

      Harold C. Rains Jr., for appellant.

      Batchelor & Batchelor, for appellee.
   John A. Fogleman, Justice.

Appellee has raised a question about the timeliness of the notice of appeal in this case, which we must first consider because it goes to the jurisdiction of this court. Davis v. Ralston Purina Company, 248 Ark. 14, 449 S.W.2d 709. The jury verdict was rendered on November 29, 1972. Judgment was filed on December 13, 1972. Thereafter, on December 15, 1972, appellant filed a motion for new trial. A response thereto was filed by appellee on December 21, 1972. The motion was taken under advisement by the circuit judge on January 10, 1973, and denied on February 6, 1973. Notice of appeal was filed on February 7, 1973.

Notice of appeal must be filed within 30 days from the date of the judgment. Ark. Stat. Ann. § 27-2106.1 (Repl. 1962). This time may be extended, however, by the timely filing and disposition of a motion for new trial. Ark. Stat. Ann. §§ 27-2106.3 and 2106.4 (Supp. 1971). Motion for new trial must be filed within 15 days after the verdict, unless that time expires after adjournment or expiration of the term, in which event, it must be presented to the trial judge within 30 days after the verdict was rendered. Ark. Stat. Ann. § 27-1904 (Repl. 1962). It is clear that the time runs from the date of the verdict and not the date of the judgment. Henderson v. Skerczak, 247 Ark. 446, 446 S.W.2d 243.

It can be readily seen that the motion was filed more than 15 days after the verdict and was not presented to the circuit judge until more than 30 days had elapsed. The term of court continued without adjournment until the first Monday in March, 1973. Ark. Stat. Ann. §§ 22-310, 312 (Repl. 1962). Consequently, presentation of the motion was not required within 30 days after the verdict was returned, if the motion was timely filed. This was not the case unless the taking of the motion under advisement had the effect of extending the time for filing of the motion. We have held that the circuit judge has the authority to extend the time for filing of such a motion. Peterson v. Brown, 216 Ark. 709, 227 S.W.2d 142; Metropolitan Life Ins. Co. v. Thompson, 203 Ark. 1103, 160 S.W.2d 852. If the circuit judge considers a tardily filed motion for new trial, we presume, in the absence of a showing to the contrary, that it was filed with permission of the court, and that the considerations for permitting the late filing were legally sufficient, at least when the motion is filed and considered and acted upon within the term of court during which the verdict was rendered. Hill v. Wilson, 216 Ark. 179, 224 S.W.2d 797; Marshall Bank v. Turney, 105 Ark. 116, 150 S.W. 693; Fitzhugh v. Norwood, 153 Ark. 412, 241 S.W. 8; Fordyce v. Hardin, 54 Ark. 554, 16 S.W. 576. Here the verdict was rendered and the motion filed, considered and overruled during the same term of court. Not only is there a failure to show that the court did not permit the late filing or that there were no legally sufficient grounds for doing so, but appellee filed a response to the motion without any mention of its late filing.

Since we must presume that the motion was timely filed, insofar as the requirements of Ark. Stat. Ann. § 27-1904 are concerned, the provisions of Ark. Stat. Ann. §§ 27-2106.3, 2106.4 and 2106.5 (Supp. 1971) come into play. The motion was filed within two days after the entry of the judgment, so the requirements of Ark. Stat. Ann. § 27-2106.3 were met. The circuit judge took the motion under advisement within 30 days after it was filed, so the requirements of § 27-2106.4 were met. The notice of appeal was filed one day after the motion was denied, so the requirements of § 27-2106.5 were met. Since the notice of appeal was given within the time allowed, we consider the appeal on its merits.

We reverse this judgment in favor of a real estate purchaser and against the seller’s real estate agent for want of substantial evidence, bypassing other points asserted by appellant, because appellee has correctly pointed out that the pleadings, motion to dismiss, motion for a directed verdict and other pleadings and orders are not sufficiently abstracted. Viewing the evidence (which does appear to have been adequately abstracted) in the light most favorable to the judgment, the facts are as follows:

Peek is a licensed real estate broker. He had a listing from Douglas E. and Marjorie K. McGriff of Hartford, Iowa, for the sale of a tract of land near Mountainburg on which a motel, service station, cafe and other buildings were located. Hoyt Mea-dors, then a resident of California, observed, while visiting in the community, that the property, of which he had known for many years, was for sale. After his return to California, he authorized his cousin O. D. Meadors to enter into negotiations on his behalf to purchase the property. O. D. Meadors went to view the property with Peek and asked about various items.. When they came to a locked garage building on the premises, both looked through cracks in the door and saw various tools. O. D. Meadors then asked Peek if the items he observed were included in the sale and Peek replied that they were, and that everything on the place went. Peek said that for some reason he did not understand he had the keys to all the buildings except this one, but that he would break the lock on it if necessary. O. D. Meadors replied that it was not, and later signed an “offer and acceptance” on a printed form on which the description of the property was filled in as “LAKE-ENTRANCE-CAFE-MOTEL WITH-ALL-EQUIPMENT - IN-BLDGS.” On the next day the McGriffs signed an acceptance of this offer. Before the final closing, Hoyt Meadors revealed to Peek that he was the actual purchaser of the property and asked that he be permitted to personally view the property before the sale was completed. Peek and Hoyt Meadors went to the property and inspected it. Upon coming to the locked garage building, Hoyt Meadors asked particularly if they could enter it and see what was in it. Peek did not have a key, so he got a sledge hammer from his automobile parked nearby, and Hoyt Meadors obtained a claw hammer. Hoyt Meadors broke the lock off the door at the direction of Peek, entered the building and observed a 10-inch table saw, a cement finisher, various hand tools, three gallons of paint and a square of rubber roofing. Hoyt Meadors specifically asked Peek if these items were included in the sale. Peek replied that they were, saying that he did not know where they came from or why they were there, “but they all go, everything you see goes with the deal.” Peek never specifically asked the McGriffs whether these items, shown to have a value of about $600, were a part of the property being offered for sale. After the sale was closed, these items were reclaimed by Don Valliquette, who had stored them in the building with approval of McGriff. There is no evidence that Peek had any actual knowledge about the real ownership of the items about which the controversy arose. At the closing of the sale, which took place the day following the visit of the premises by Hoyt Meadors and Peek, no mention was made of the questioned items. Meadors did not ask McGriff about them because he relied on Peek’s representations.

Peek testified, over appellee’s objection, that he was authorized to sell all the equipment in all the buildings. Although this testimony of appellant could not be taken as uncontradicted, it is corroborated by the inescapable inference that he was so authorized, arising from the written acceptance of the Meadors offer by the sellers, with the express description of the property including “all equipment in buildings.”

The principal, and not the agent, is liable upon the contract, where the agent is duly constituted, names his principal, contracts in the principal’s name and does not exceed his authority. Brown v. Maryland Casualty Company, 246 Ark. 1074, 442 S.W.2d 187. As a basis for liability of the agent, appellee relies upon the doctrine of constructive fraud set out in Lane v. Rachel, 239 Ark. 400, 389 S.W.2d 621, wherein we held, as we have in other cases, that one, not knowing the truth, who makes a representation which is false, may be liable to one to whom he owes a legal or equitable duty, even though there is a complete absence of any moral wrong or evil intention. The misrepresentation generally involves a mere mistake of fact. Kersh Lake Drainage District v. Johnson, 203 Ark. 315, 157 S.W.2d 39. Ah though an agent might well be liable to a third person for legal or constructive fraud, we' do not think that the evidence in this case supports such a liability. In Brooks v. Smith, 215 Ark. 421, 22 S.W.2d 801, we held that an agent was not liable to a third party where his representation to the buyer was only a repetition, in good faith, of a statement authorized by his principal. There is no evidence from which a lack of good faith or the existence of a deceitful intent on Peek’s part could be inferred. As we have pointed out, the evidence shows that Peek’s authority was to sell all equipment in the buildings on the premises, and he was relying upon that authority in making the statements relied upon by the purchaser. Under these circumstances, the rule stated in Brown v. Maryland Casualty Company, supra, applies, and the judgment lacks substantial evidentiary support.

Accordingly, the judgment is reversed and the cause remanded.


author: J. Fred Jones, Justice.

text:
    STATE of Arkansas v. James W. GIBBONS
    CR 73-101
    500 S.W. 2d 341
    Opinion delivered October 22, 1973

      Jim Guy Tucker, Atty. Gen., by: O. H. Hargraves, Deputy Atty. Gen., for appellant.

      Howell, Price, Howell & Barron, for appellee.
   J. Fred Jones, Justice.

James W. Gibbons was indicted by a Pulaski County grand jury for the crime of pandering. At his trial in the Pulaski County Circuit Court certain tape recordings were offered in evidence by the state and refused by the trial court. A mistrial was declared in connection with some matter not in the record before us, and the state brings this appeal assigning three errors in connection with the trial court’s refusal to admit the sound recordings in evidence. The appellee Gibbons contends that there is no authority for an appeal by the state from an interlocutory order and we agree.

The appeal in this case was perfected under the provisions of Ark. Stat. Ann. § 43-2720 (Repl. 1964) setting out the method of perfecting an appeal in a felony case where an appeal on behalf of the state is desired. Ark. Stat. Ann. § 43-2733 (Repl. 1964) sets out the procedure for appeals in misdemeanor cases when an appeal by the state is desired. The state apparently relied on Ark. Stat. Ann. § 43-2706 (Repl. 1964) in attempting this appeal from an interlocutory order. This statute was repealed by Act 333 of 1971 but it originally read as follows:

“An appeal shall only be taken on a final judgment except on behalf of the State.” (Emphasis added).

We have held that the state was entitled to appeal from the entry of an interlocutory order in felony cases under this statute. See State v. Flynn, 31 Ark. 35; State v. Robinson, 55 Ark. 439, 18 S.W. 2d 541.

In State v. Langstaff, 231 Ark. 736, 332 S.W. 2d 614, we held that the state was not entitled to an appeal from an interlocutory order in a misdemeanor case and pointed out that § 43-2706 was a part of Title 9, Art. 1, of the Criminal Code which is applicable only to felonies and not to misdemeanors.

Act 333 of the Arkansas Legislature for 1971 was an Act to simplify the procedure for appeals from the circuit court to the Supreme Court in criminal cases. After providing for an absolute right of appeal from misdemeanor as well as felony convictions in the circuit courts, this Act concludes with §§ 13 and 14 as follows:

“SECTION 13. Appeal by the Prosecution. The manner in which the state or other prosecuting party may appeal in a criminal case is not altered by this act.
SECTION 14. Repeal of Laws. All laws and parts of laws in conflict herewith, including but not limited to the following, are hereby repealed: Ark. Stat. Ann. §§ 43-2301, 43-2701, 43-2703, 43-2704, 43-2705, 43-2706, 43-2708, 43-2709, 43-2710, 43-2711, 43-2712, 43-2713, 43-2723, 43-2725, 43-2731, 43-2732, 43-2734, 43-2736, 43-2737, 43-2738.”

Thus it is seen that § 43-2706, supra, was repealed outright but §§ 43-2720 and 43-2733 were not disturbed by Act 333.

The case of State v. Cosentino, 252 Ark. 68, 477 S.W. 2d 460, was another appeal by the state from an interlocutory order in a misdemeanor case which was considered by this court in March, 1972, after the effective date of Act 333 of 1971. In that case we followed our decision in State v. Langstaff, supra, and concluded that opinion as follows:

“Without deciding the point, we call attention to the possibility that the State’s privilege of appealing from interlocutory orders in felony cases, under Ark. Stat. Ann. § 43-2706 (Repl. 1964), may have been abrogated by §§ 13 and 14 of Act 333 of 1971. See Ark. Stat. Ann. §§ 43-2706 and -2720.1 (Supp. 1971).” (Emphasis added).

As already pointed out, the appeals in Langstaff and Cosentino were from interlocutory orders in misdemeanor cases and our decisions in those cases turned on the fact that the exception in favor of the state found in § 43-2706 simply did not apply to misdemeanor cases. In the case at bar, the accused is charged with a felony and we now hold, as we strongly indicated in Cosentino, that Ark. Stat. Ann. § 43-2706 (Repl. 1964) was repealed by Act 333 of 1971, and the state no longer has the right of interlocutory appeal reserved to it by the exception in § 43-2706, supra.

The state argues that since'the manner in which the state or other prosecuting pafty may appeal in a criminal case was specifically excluded from the effects of Act 333, the state may still appeal from an interlocutory order in a felony case. We find no merit in this argument. The state may still perfect its appeals by the procedures set out in §§ 43-2720 and 43-2733 which were not repealed or altered by Act 333.

The appeal is dismissed.


author: Conley Byrd, Justice.

text:
    Claud H. HOLTHOFF and Evelyn HOLTHOFF v. Emmett J. TUCKER, et al, Intervenor
    73-105
    500 S.W. 2d 338
    Opinion delivered October 22, 1973

      B. Kenneth Johnson and Gill, Clayton ir Johnson, for appellants.

      Odell C. Carter, for appellees.
   Conley Byrd, Justice.

Prior to May 19, 1969, Linnie B. Hill, Willie Gene Laster, Emmett Tucker and Allie B. Wilson were tenants in common of the NWM NWM Sec. 26, T. 85, R 5 W in Lincoln County. On that date Allie B. Wilson executed a quitclaim deed to Emmett Tucker. The deed was properly recorded. Emmett Tucker started trying to sell the property and ran some advertisements in the local paper. Sometime during 1970, Tucker entered into an oral contract with Albert Matthews to sell him the enure 40 acres. June 4, 1970, appellants Claud H. Holthoff and Evelyn Holthoff acquired the undivided one-fourth interest of Linnie B. Hill. On January 20, 1971, appellants acquired a quitclaim deed from Allie B. Wilson paying therefor a consideration of $2,000. In August 1971, the appellants filed a partition suit making appellees Tucker and Willie Gene Laster parties. Thereafter, appellee Matthews intervened. In the trial court appellees denied appellants’ claimed ownership of the Allie B. Wilson interest citing the prior 1969 deed to Tucker. Appellants countered with the contention that the 1969 deed was executed fraudulently and without consideration. The chancellor in a written opinion determined that appellants were not the owners of the Allie B. Wilson interest. For reversal it is contended:

“POINT I. The court incorrectly placed the burden of persuasion as to fraud in the procurement and as to the existence of a constructive trust upon appellants when a confidential relationship was shown to exist.
POINT II. The court erred in holding that the law in Arkansas does not give a third party any right to seek cancellation of a deed valid on its face.”

Allie B. Wilson testified that at the time of the conveyance to her brother Emmett J. Tucker she was in debt to him for some liens he had satisfied on the property. After some equivocation as to her brother’s conduct (■i.e. whether he held it for investment purposes), Allie Wilson stated that she had never complained about the way her brother had handled this transaction and that she was not complaining now.

We do not reach appellants’ contention that they, as third parties, have standing to seek cancellation of the deed from Wilson to Tucker, because even if we should assume that they have the requisite standing still they cannot prevail. The deed was of record and according to Ark. Stat. Ann. § 16-114 was constructive notice of the conveyance. Furthermore, under the allegations here made the deed was not void but at most would only be voidable. Under these circumstances the appellants’ claim to the title as against Tucker could never exceed those of Allie B. Wilson. The testimony of Allie B. Wilson was certainly sufficient to show by a preponderance that the deed was executed to Tucker for a valid consideration and that she was not now repudiating its validity. Under these circumstances Allie B. Wilson could not set aside the conveyance, Heskett & Hale v. Bryant, 247 Ark. 790, 447 S.W. 2d 849 (1969). The appellants’ claim being no greater than Wilson’s is subject to the same limitation.

Affirmed.


author: Frank Holt, Justice.

text:
    Maury D. DICKS et al v. Fred NAFF, mayor et al
    73-81
    500 S.W. 2d 350
    Opinion delivered October 22, 1973

      Putman, Davis if Bassett, for appellants.

      Ledbetter if Associates Ltd., by: Thomas D. Led-better; Smith, Williams, Friday, Eldridge if Clark, by: Herschel H. Friday, James A. Buttry, and Hermann Ives-ter, for appellee.
   Frank Holt, Justice.

Appellants attack the constitutionality of Ark. Stat. Ann. § 19-4613 et seq. (Suppl. 1971) (Act 185 of 1965 as amended), which is enabling legislation, and also the constitutionality of an implementing ordinance of the City of Eureka Springs. The city ordinance, as permitted by the enabling act, levied a 1% tax upon the gross receipts or proceeds of motels, hotels and restaurants, owned and operated by appellants, for the purpose of advertising and construcing facilities in the promotion of tourism.

Appellants first contend that the chancellor erred in declaring the enabling act and the implementing ordinance constitutional. It is appellants’ position that the enabling act is unreasonable and arbitrary and without just distinction creates a separate class for taxation consisting only of hotels, motels and restaurants to bear the brunt of the total cost of promoting tourism. Further, appellants contend that the classification does not rest upon some ground of difference having a fair and substantial relation to the object of the legislation so that all persons similarly situated shall be treated alike. Therefore, it is asserted that the enabling act as well as the implementing ordinance is violative of the due process and equal protection clauses of the Fourteenth Amendment of the Federal Constitution.

We first review the controlling rules of statutory construction with reference to the validity of legislation in the area of taxation. In the early case of Green, et al, v. Frazier, 253 U. S. 233 (1920), the court said:

When a state legislature acts within the scope of its authority it is responsible to the people, and their right to change the agents to whom they have entrusted the power is ordinarily deemed a sufficient check upon its abuse. When the constituted authority of the State undertakes to exert the taxing power, and the question of the validity of its action is brought before this court, every presumption in its favor is indulged, and only clear and demonstrated usurpation of power will authorize judicial interference with legislative action.

In Madden v. Kentucky, 309 U.S. 83 (1940), where a state tax set different rates on bank deposits in the state from those out of state, the United States Supreme Court held that the tax was consistent with due process and equal protection. The court said that “in taxation, even more than in other fields, legislatures posses the greatest freedom in classification. Since the members of a legislature necessarily enjoy a familiarity with local conditions which this Court cannot have, the presumption of constitutionality can be overcome only by the most explicit demonstration that a classification is a hostile and oppressive discrimination against particular persons and classes.” Again it was emphasized that “[T]he burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it.” Neither is the state “required to resort to close distinctions or to maintain a precise, scientific uniformity with reference to composition, use or value.” Allied Stores v. Bowers, 358 U.S. 522 (1959). Nor is a legislature required to make meticulous adjustments in an attempt to avoid incidental hardships. Rapid Transit Corp. v. New York, 303 U.S. 573 (1938). However, as appellants assert, “[T]he State must proceed upon a rational basis and may not resort to a classification that is palpably arbitrary.” Allied Stores v. Bowers, supra. The mere fact that a taxation statute is discriminatory in favor of one class is not sufficient to make it arbitrary if that discrimination is based upon a reasonable distinction or if any facts can reasonably be conceived to sustain the act and a difference need not be great. Tax Commissioners of Indiana v. Jackson, 283 U.S. 527 (1931), and Allied Stores v. Bowers, supra.

To meet equal protection and due process requirements the legislative classification for the purpose of taxation must rest upon some ground of difference having a fair and substantial relation to the object of the legislation so that all persons similarly situated shall be treated alike. Royster Guano Co. v. Virginia, 253 U.S. 412 (1920), and Larey, Comm’r v. Cont. Southern Lines, 243 Ark. 278, 419 S.W. 2d 610 (1967). A classification is permissible if the differences in the inpact of the act are reasonably related to the purpose of the law. Jacks v. State, 219 Ark. 392, 242 S.W. 2d 704 (1951). With respect to the extent of the great freedom of the legislature in exercising its broad and discretionary powers in the area of taxation, it was said in Carmichael v. Southern Coal Co., 301 U.S. 495 (1937):

A legislature is not bound to tax every member of a class or none. It may make distinctions of degree having a rational basis, and when subjected to judicial scrutiny they must be presumed to rest on that basis if there is any conceivable state of facts which would support it.

In Carmichael the Alabama Unemployment Compensation Act established a tax scheme levied on employers of eight or more persons for twenty or more weeks in the year. Addressing the numerical requirements, the court said:

Yet this is the type of distinction which the law is often called upon to make. It is only a difference in numbers which marks the moment when day ends and night begins, when the disabilities of infancy terminate and the status of legal competency is assumed. It separates large incomes which are taxed from the smaller ones which are exempt, as it marks here the difference between the proprietors of larger businesses who are taxed and the proprietors of smaller businesses who are not.

To the same effect is Potts v. McCastlain, Comm’r, 240 Ark. 654, 401 S.W. 2d 220 (1966), where we recognized that the mere fact that a classification made by the state is unfair and unequal is not sufficient for invalidating the statute inasmuch as any system of taxation results in many inequalities and perhaps unfairness to particular classes. “This arises more often, not out of the law itself, but out of the peculiar conditions under which classes, or individuals, may find themselves in their manner of doing business or location, rather than out of the classification.” U-Drive-Em Corporation v. Wiseman, 189 Ark. 1163. 76 S.W. 2d 960 (1934).

In Madden v. Ky., supra, it was said “[tjhis court fifty years ago concluded that ‘the Fourteenth Amendment was not intended to compel the State to adopt an iron rule of equal taxation’ and the passage of time has only served to underscore the wisdom of that recognition of the large area of discretion which is needed by a Legislature in formulating sound tax policies.”

Thus, the foregoing authority permits the state legislatures to classify certain groups for taxation purposes if a rational basis exists and if a difference is reasonably related to the purpose of the law. A presumption of validity attends such legislation with all doubts being resolved in its favor. The appellants must shoulder the heavy burden of demonstrating that this type legislation can conceivably have no rational basis. In our view the legislature, by its democratic process of conducting public hearings before committees and the free and open discussions by its members in that forum could very well have determined that the greatest income from the toursit dollar would be to the advantage of the members of this particular class. It is common knowledge from time immemorial that the traveler or tourist primarily must first have lodging and food in the area in which he sojourns.

Therefore, in the case at bar we hold, and appellants cite no cases to the contrary in the factual situation, that the enabling act has a rational basis and appellants’ classification has a fair and substantial relation to its objective.

The appellants, as prevously indicated, next assert the unconstitutionality of the implementing ordinance on the same basis they attacked the enabling act; i.e., that it has no rational basis and the difference in the effect of the ordinance on other persons similarly situated is not reasonably related to the purpose of the law. It was stipulated that hotels and motels derive 97.5% of their income from tourist trade and that 90% is derived by restaurants and other eating establishments. In arriving at these percentage figures, it was agreed that seventeen motels and hotels, five restaurants, cafes and cafeterias were considered. This constituted appellants’ classification. It was further stipulated that other businesses which were untaxed derived the following percentage of their gross receipts from the tourist trade: campgrounds (1) 100%, gas stations (8) 66%, gift shops (12) 86%, art galleries (3) 88%, liquor stores (3) 53%, grocery stores (2) 50%, toy stores (1) 75%, antique shops (3) 90%, museums (1) 90%, cheese shops (1) 70%. There was evidence adduced, however, that there was actually a total of twenty-five restaurants, thirty-two motels and two campgrounds. It was agreed that the stipulated percentages do not take into account any differences in the amount of gross receipts derived by the various business establishments from tourism. Certainly this is a distinction.

Very quickly we observe that it could reasonably be inferred by the legisladve authorities that the gross receipts of those businesses constituting the classification could be greatly in excess of the gross receipts of those untaxed businesses which also benefit from the tourist trade. It is, further, observed that the stipulated percentages of gross receipts derived from tourism are not weighted in terms of the number of businesses in each sub-class.

The two campgrounds are obviously different from hotels and motels inasmuch as the traveler or tourist using them must have with him and furnish most of the necessary facilities for lodging. As to the other untaxed businesses, there also exist differences in “organization, management, and type of business transacted.” See Tax Commissioners of Indiana v. Jackson, supra.

In the case at bar, the ordinance earmarked the funds for expenditure in advertising and providing facilities to promote the tourist industry in that locality. In New York Rapid Transit Corp. v. City of New York, supra, a tax was placed upon a classification of industries and earmarked the revenues to relieve unemployment. Even though the funds were earmarked to be spent for that purpose, it was said that the purpose or object of the tax law was to raise revenue. The court said:

We conclude, therefore,' that the provisions of the legislation earmarking the funds collected are not of importance in determining whether or not the classification of the challenged acts is discriminatory.

There it was further said that it is not constitutionally required that a classification for a tax be earmarked or related to the appropriation of the proceeds. New York Rapid Transit Corp. v. City of New York, supra.

In other words, it was there stated the controlling “object” or purpose “is the revenue to be raised by the acts.” We hold that whether the object or purpose of the act and implementing ordinance was merely for raising revenue or its object or purpose was to spend revenue to promote tourism as earmarked by the act, in either event, the appellants have not discharged the heavy burden of proof which they must shoulder to demonstrate the enabling act and implementing ordinance have no rational basis and are not reasonably related to the purposes of the legislation. As previously observed, the legislature could logically and practically envision that appellants, as a classification, would be the beneficiary of not only as great or greater percentage of the tourist dollar (as stipulated) - they also would benefit from much greater gross receipts and profits than the untaxed businesses which also derive a benefit from the sojourner or tourist.

Appellants next contend that the provision in the enabling act providing for a referendum upon the petition of 500 electors is not severable and, further, it is unconstitutional in that it arbitrarily and capriciously discriminates against the smaller cities of the first class (1,500). Eureka Springs is a city of approximately 1,600 population and about 1,233 are qualified electors. At the last general election, a total of 833 voted for a mayor. We hold that the provision requiring 500 petitioners is severable inasmuch as the enabling act is not dependent upon this provision nor are we of the view that the legislature would have refused to enact the legislation without this number. In fact the legislature, in plain and explicit language in a severability clause, provided that any portion of the act was severable to insure its validity. Furthermore, we do not consider that the appellants are in a position to attack this proviso inasmuch as they did not avail themselves of Amendment 7, §1, of our constitution which permits them to refer any city ordinance to a general election upon the petition of 15% of the local voter's of that city. That would have only required approximately 125 petitioners to refer this ordinance to the voters for approval. In oral argument appellees agreed this was a permissible procedure. In the event the petitioners of a city of the first class desire to utilize Amendment 7 as an alternative, that is permissible.

Finally, the appellants, assert the chancellor erred in admitting the testimony of Dr. Charles E. Venus, an expert witness, as to the results of his statewide and local surveys with respect to tourism. A sufficient answer is that, although the chancellor permitted the witness to testify, he specifically found in the decree that appellants’ objection to the testimony was sustained and consideration of the testimony was excluded by him in the determination of the issues.

Affirmed.


author: Carleton Harris, Chief Justice.

text:
    SOUTHLAND MOBILE HOME CORPORATION v. Robert L. CHYRCHEL and Gloria A. CHYRCHEL
    73-102
    500 S.W. 2d 778
    Opinion delivered October 29, 1973

      Paul Jackson, for appellant.

      Lewis E. Epley Jr., for appellees.
   Carleton Harris, Chief Justice.

Appellant, South-land Mobile Home Corporation, operated, through O.E. Barham, a mobile home sales lot near Springdale. In January, 1970, appellee, Gloria Chyrchel, visited the Southland Mobile Home lot in Springdale and talked to Mrs. O. E. Barham, wife of Barham, relative to purchasing trailers. At the lot, appellee looked at two mobile homes, known as a “Detroiter”, and a “Nashua”, which she subsequently purchased, but she also expressed a desire to purchase a mobile home which had an end bedroom. According to appellee, Mrs. Barham said there was not one on the lot but she knew where one of this type was located, and they drove to the location and looked at it. Mrs. Chyrchel was pleased with the trailer (an LTD) shown her, and when it was agreed that a new gas range would be placed in it, she said she would purchase same. All three trailers were purchased by appellee, a down payment in a lump sum of $2,000 being made ($500.00 of which was a deposit on the LTD) and the balance being made by three different checks before the occurrence of the fire, hereinafter discussed. After the purchases had been made, the service crew, employed by Southland, made the installations. Though employed by Southland, they were hired by Barham and worked directly under him. The LTD trailer was placed in position, the sewer and gas were hooked up, and the pilot light on the range lighted, but the service crew was unable to complete installation because they were not knowledgeable on how to hook up the furnace, and they did not hook up the electricity. While they were engaged in their work, Mrs. Chyrchel told them that she smelled gas, suggested that there was possibly a leak, and asked them to check it. She was advised that they had already checked for leaks, but to satisfy her, would check again. This partial installation occurred on Tuesday, April 7. On Friday, the 10th, they connected the water heater but still did not complete the other connections. On this same day, Mrs. Chyrchel thought she could still smell gas but, noticing a piece of pipe on the living room floor, assumed that there was a residue. She opened the windows to “air” the trailer, returned Sunday morning because it appeared that there would be a rain, closed the windows, and left. Not long thereafter, there was a report that the LTD was on fire. There had been an explosion, and the trailer was damaged extensively and made uninhabitable as a result of the fire. When Mrs. Chyrchel was unsuccessful in getting her money refunded or obtaining a replacement for the LTD, she instituted suit against Southland and Barham, alleging negligence, and subsequently amending the complaint to allege breach of contract and breach of warranty. Southland defended on the basis that the trailer was sold to appellee by Mr. Barham, on his own, and that South-land had no interest in the trailer, and did not make the sale; further, that the title to the LTD, at the time of the fire, was in appellee, and it was not liable. On trial, the court held that there had been a breach of contract and a breach of warranty by Southland and Barham, jointly and severally, and rendered judgment in favor of appellee in the sum of $4,595, together with interest at the rate of 6% per annum. From this judgment, appellant brings this appeal.

For reversal, three points are relied upon, first that Southland did not own the LTD, and therefore could make no sale (and accordingly no warranty); second, that the sale was complete, and the risk of loss passed to the buyer at the time of the fire. Finally, it is asserted that the Barhams were not the agents of Southland at the time of the sale of the LTD, and the company is not bound by their actions. For convenience, these points will be discussed in reverse order.

The trial court pointed out some rather pertinent facts in rendering its opinion as follows:

“But now, as far as the cause of action on the breach of warranty or breach of contract, I think the case right now shows that a prima facie case on a cause ctf action on a breach of warranty in this sense, that the trailer was purchased by Mrs. Chyrchel from the Barham’s who were held out to be the agents in charge of the lot, or Mr. Barham was the agent in charge of the Southland Mobile Home Corporation lot at Springdale. *** It is also true that when the trailer was delivered, it was delivered by Southland Mobile Home truck, by Southland Mobile Home service personnel, and they proceeded to make the installation. I don’t think it’s seriously argued that when she went to see about buying the trailer, she went to the South-land Mobile Home office and she was taken by Mrs. Barham to the Southland Mobile Home lot where they kept their trailers and everything involved in this transaction is calculated to indicate that Mr. Bar-ham was the agent of the Southland Mobile Home Corporation and that he was doing those things which were normal and within the scope of his authority as such, and he at least had ostensible authority to sell the trailers to her on behalf of Southland Mobile Homes. Now as far as whether Southland Mobile Homes actually owned the trailer or not, I think the evidence shows they probably did not, but it also shows that at the time Mrs. Chyrchel bought the trailer that she was not told that it was owned by anybody other than Southland and that she was told that it was on a different lot and that Mr. Bar-ham would have to get it to her, and that is what he apparently did. Now I think she was entitled to consider that she was dealing with Mr. Barham as the agent of Southland Mobile Homes, because the whole transaction appeared to be that way, and on that basis I think up to this point Southland is in the position of a seller and as such is chargeable like any other seller with the matter of implied warranties of a sale and warranty of merchantability for the purpose indicated, and the testimony by Mrs. Chyrchel is she told Mr. Barham she wanted it for a home for her mother, and this is what it was to be used for.”

Bob Wallace, General Manager of Southland, admitted that Barham was an employee of the company, in charge of the Springdale lot, and was, of course, authorized to make sales. Wallace testified that Barham was the only salesman to whom the company paid any commissions, and that other salesmen were paid by Barham. In other words, commissions paid for sales made there were all sent to Barham who, if others had made a sale, paid them from the check sent him. Wallace said it was left up to Barham whether he wanted one salesman or fifty. The witness stated that Barham had no authority to purchase trailers.

Appellant depends in large measure upon the fact that, in paying for these trailers, appellee, in purchasing the Detroiter and Nashua, made the checks payable to Southland, but in purchasing the LTD, made the check payable to Barham. It is accordingly argued that she knew that Southland did not own the LTD. We do not think this fact deserves the significance attached to it by appellant, for Mrs. Chyrchel testified that she was told to make the check payable to Barham instead of Southland because this particular trailer was not on the Southland lot at the time it was purchased.

As pointed out by the trial court, the setting up of all trailers and installation of services were performed by Southland employees. The trailers were taken to Mrs. Chyrchel’s premises by appellant’s crew and appellee testified that the Southland name was on the towing vehicle. Though the trailers were shown to Mrs. Chyrchel by Mrs. Barham, there is no question but that Barham himself participated in the sale. He was “in and out” of the office while the papers were being prepared, and was thoroughly familiar with the transaction, including the fact that he told Mrs. Chyrchel to make out one of the checks to him.

Barham testified that all service personnel were employed by Southland, though he, as manager, hired them. According to the witness, he had the responsibility of hiring and firing for Southland, and these employees worked Under his direction. The delivery equipment was owned by Southland, and he said that it was this equipment that delivered the trailers that Mrs. Chyrchel had purchased. Barham testified that his wife worked for him in sales and was working as his assistant at the time. Other pertinent facts worthy of mention are that the contracts for the purchase of all three mobile homes were prepared at the same time by Mrs. Barham in the office of appellant, using forms furnished by appellant. As previously stated, the kitchen range in the LTD was to be replaced and Mr. Barham testified that the new range came from the inventory of appellant and was installed by its service personnel at his direction. There is no dispute in the evidence but that Mrs. Chyrchel was not told that the mobile home was owned by someone other than Southland. In General Motors Acceptance Corporation v. Salter, 172 Ark. 691, 290 S.W. 584, this court, quoting 2 C.J. 573, said:

“ ‘Apparent authority in an agent is such authority as the principal knowingly permits the agent to assume, or which he holds the agent out as possessing; such authority as he appears to have by reason of the actual authority which he has; such authority as a reasonably prudent man, using diligence and discretion, in view of the principal’s conduct, would naturally suppose the agent to possess.’ ”

We have also said that when the evidence as to the nature and extent of an agent’s authority is in conflict, it is a question of fact for the jury. See American Metal Window Company v. Watson, 238 Ark. 418, 382 S.W. 2d 576.

In Mark v. Maberry, 222 Ark. 357, 260 S.W. 2d 455, this court stated that while an agent’s declarations, standing alone, are not admissible to prove agency, nevertheless an agency can be established by circumstances, and any evidence tending to establish agency is admissible, including the testimony of the agent. We hold that there was substantial evidence to support the trial court’s finding, sitting as a jury, that Mr. Barham possessed apparent authority to sell the LTD as the agent of appellant company.

Nor do we agree that the sale was complete before the fire and the risk of the loss had passed to the buyer. Mrs. Chyrchel testified that the price included installation of facilities and that everything was to be ready for use of the trailer by her mother before acceptance. In fact, she said that her son had signed the acceptance agreement for the other two trailers, but that this particular trailer was never accepted nor was any check list ever presented to her for acceptance. Barham testified that, “We would try our best to get the trailer ready, yes,” and he explained that by “ready”, he meant water, lights, and gas connected so that the trailer could be lived in. Admittedly, this was not done, and the trailer was not ready for occupancy at the time it burned. Appellant relies on Ark. Stat. Ann. § 85-2-509 (3) (Add. 1961), which it contends placed the risk of loss on appellee once the trailer was delivered. It would appear that there is a quick answer to this contention. Sub-section (4) provides that the provisions of this section are subject to a contrary agreement of the parties and to the provisions of the article on effect of breach on risk of loss as stated in § 85-2-510. We have already pointed out that in addition to moving the trailer to the Chyrchel lot, there was an agreement to hook up the facilities and thus prepare the trailer for occupancy by Mrs. Chyrchel’s mother. This required more from appellant than mere placement of the trailer and can be construed as a contrary agreement which left the risk of loss on the seller/appellant until the installation was completed. Also, § 85-2-510 provides that where delivery of goods so fails to conform to the contract as to give the right of rejection, the risk of loss remains on the seller until cure or acceptance. This section was construed in the case of William F. Wilke, Inc. v. Cummins Diesel Engines, Inc., 252 Md. 611, 250 A. 2d 886, where a seller delivered a generator to the job site in a field, but did not perform required field tests called for under the agreement between the buyer and seller. Subsequently, the generator froze, and the question at issue was which party suffered the loss. The coúrt held that “In the absence of a delivery of conforming goods, the risk of damage remained with Cum-mins, notwithstanding the delivery of the generator to the job site, the receipt of payment from Wilke, and some eight months’ delay in start-up.” It also stated, “U.C.C. § 2-106 (2) provides that ‘Goods or conduct including any part of a performance are “conforming” or conform to the contract when they are in accordance with the obligations under the contract.’ Non-conformity cannot be viewed as a question of the quantity and quality of goods alone, but of the performance of the totality of the seller’s contractual undertaking. Campbell v. Pollack, 101 R.I. 223, 221 A. 2d 615 (1966).” The court then said:

"Under the facts of this case, we have no difficulty in holding that the delivery of the generator to the job site, while identifying the goods to the contract, did not amount to a delivery of goods or the performance of obligations conforming to the contract. It could not constitute such a delivery and performance until the generator had been installed, started up, and field tests completed to the satisfaction of the government. Until then, risk of loss remained with Cummins regardless of where title may have stood.”

Previous discussion has included Southland’s contention that it did not own the LTD and therefore could make no sale, this contention having been found to be without merit.

We are of the view that the evidence, heretofore set out, is of a substantial nature, and in American Metal Window Company v. Watson, supra, we commented that it is well settled law in this state that the finding of the trial court, as a trier of the facts, has the verity and binding effect of a jury verdict, and will be sustained if there is any substantial evidence to support it.

Affirmed.

      This employment, according to Barham, was terminated in September, 1970. Bob Wallace, General Manager and Vice President of Southland, testified that Barham was employed until September, 1971, but this appears to be a mistake.

      While Mr. Chyrchel is also an appellee, he does not appear actively in the case and appellees will be referred to throughout this opinion in the singular.

      The Nashua, a used trailer, was purchased for the use of Mrs. Chyrchel, who lived in another state, but planned on moving to Carroll County to live with her husband, after retirement; the LTD was purchased for the use of her mother; and the Detroiter, a new trailer, was purchased on behalf of friends who were going to live in it.

      According to Barham’s testimony, the fire apparently started around the gas stove.

       This portion of the opinion was rendered in response to appellant’s motion for directed verdict, such motion being denied. Thereafter, only Wallace testified, and the court, after further brief comments, in accord with those quoted,- rendered judgment.


author: George Rose Smith, Justice.

text:
    Arthur RATZLAFF et al v. FRANZ FOODS of Arkansas
    73-152—73-158
    500 S.W. 2d 379
    Opinion delivered October 29, 1973

      Putman, Davis ér Bassett, and John O. Maberry, for appellants.

      Crouch, Blair, Cypert ér Waters, by: H. Franklin Waters, for appellee.
   George Rose Smith, Justice.

These seven appeals have been consolidated here. The controlling question is whether a plaintiff, by taking a voluntary nonsuit with respect to two counts in his complaint, can thereby convert an adverse partial summary judgment with respect to a third count into an appealable order.

Six landowners filed three suits against Franz Foods, alleging that Franz had, by discharging prohibited wastes into the sewer system of the city of Green Forest, polluted a stream running through the plaintiffs’ property. The trial court sustained demurrers to the complaints, but on appeal we held that the complaints, by charging Franz with breaches of a contract with the city, stated a cause of action. Ratzlaff v. Franz Foods of Arkansas, 250 Ark. 1003, 468 S.W. 2d 239 (1971).

After that decision four more suits were filed. Eventually all seven complaints alleged not only the ground for recovery which we had sustained but also a second ground, that Franz had wrongfully discharged wastes directly into the stream, and a third ground, that Franz’s discharge of certain wastes into the municipal sewer system violated a city ordinance. On Franz’s motion the trial court entered partial summary judgments striking the third count of the complaints. The plaintiffs at once took voluntary nonsuits with respect to the two counts which the trial court had found to be valid and appealed from the partial summary judgments.

We sustain Franz’s motion to dismiss the appeals for want of a final appealable order, which the statute requires. Ark. Stat. Ann. § 27-2101 (Supp. 1971). In interpreting the statute we have steadfastly refused to allow piecemeal appeals. See our most recent case on the point, Independent Ins. Consultants v. First State Bank of Springdale, 253 Ark. 779, 489 S.W. 2d 757 (1973). Here the appellants seek to circumvent the policy of the statute by holding two counts of their complaints in abeyance while they seek our opinion upon the validity of a third count. If that procedure is permissible, litigants may appeal from various interlocutory orders by taking a nonsuit with respect to the rest of the case.

We are not persuaded by the appellants’ argument that the situation is essentially the same as it would have been if they had first asserted only one cause of action and then, after a successful appeal from an adverse summary judgment, had added the other two causes of action by amendment after the case had been remanded to the trial court. The controlling distinction is that in the case at bar we know that a piecemeal appeal is presented and that we would violate the policy of the statute by entertaining it. In the suggested alternative situation no violation of the statute would exist or be discernible upon the appeal.

The case at bar falls squarely within the spirit of a statement that was first made in Woodruff v. State, 7 Ark. 333 (1846), and was later commented upon in Yell v. Outlaw, 14 Ark. 621 (1854): “It is not in the power of a party to single out a single issue, even by the most solemn contract of record, and submit it to the consideration of the supreme court, so as to elicit the opinion of the supreme court upon the law or the fact of that particular issue. Such a judgment would not be final, as not embracing all the issues in the case, and consequently it could not become the subject of an appeal or writ of error. The real object of the parties was to take the opinion of the supreme court upon the questions of law arising upon the demurrer to the second plea, but in order to receive the benefit of that decision it became absolutely necessary that the circuit court should pass upon all the issues joined.”

Appeals dismissed.


author: Lyle Brown, Justice.

text:
    Harold SULLIVAN v. STATE of Arkansas
    CR 73-125
    500 S.W. 2d 380
    Opinion delivered October 29, 1973

      James M. Simpson, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Philip M. Wilson, Asst. Atty. Gen., for appellee.
   Lyle Brown, Justice.

Appellant’s Rule I petition was denied and he appeals on the grounds that he had inadequate assistance of counsel, and that he did not make an intelligent waiver of his right to a jury trial.

In 1968 appellant entered a plea of guilty to having carnal knowledge of his step-daughter, age eleven years. He was sentenced to a period of not less than ten nor more than thirty years. On August 26, 1968 the court appointed attorney Marion Gill to represent the defendant and on the same day the plea of guilty was entered. Appellant testified at the Rule I hearing that the attorney conferred with him for about ten minutes; that he was told by the attorney he would get a life sentence if he did not plead guilty; that he had a fourth grade education; that no constitutional rights were ever explained to him; and that he was not told he had a right to trial by jury.

Deputy Sheriff Atkinson testified that he assisted Sheriff Robert Moore (now deceased) in the arrest of appellant and that while the three men were sitting in a car he heard Sheriff Moore read the rights form to appellant. He said the sheriff particularly explained to appellant that he had a right to a lawyer but appellant at that time did not ask for one.

Attorney Marion Gill testified on behalf of the State. He could not recall how long he interviewed the appellant, but it was his opinion that it was much longer than ten minutes. The attorney said he explained the applicable law to appellant, explained his rights, and obtained from appellant the information needed to properly advise him. The attorney could not recall specifically whether appellant related that he was guilty but said: “I have never in any criminal case allowed the person to enter a plea of guilty if they told me they were innocent.” Mr. Gill said he also interviewed Sheriff Moore, one of the investigating officers. Also, the prosecuting witness happened to be in the courtroom and it was his recollection that he talked with her. He said there was nothing about the interview that indicated mental incompetency on her part. The attorney said he entered into plea bargaining negotiations either with the prosecuting attorney, the sheriff, or both, and related the results thereof to appellant. He said it was appellant’s decision “to accept the terms that were offered and to enter a plea of guilty”. The attorney was emphatic in his recollection that he told appellant he was entitled to a jury trial if he entered a plea of not guilty. Also, he was certain, he said, that the decision to enter a plea of guilty was the decision solely of appellant. Mr. Gill said he did not talk to the examining physician because, based on what appellant told him, he did not consider it necessary.

We think the evidence is sufficient to sustain the trial court’s conclusion that appellant had adequate assistance of counsel. That is especially true in light of our rule that there is a presumption of competence which of course appellant must overcome. Clark v. State, 255 Ark. 13, 498 S.W. 2d 657.

Since it is our conclusion that appellant voluntarily entered a plea of guilty, there is no need to discuss his other point, namely, that he did not waive a trial by jury. Medley v. Stephens, 242 Ark. 215, 412 S.W. 2d 823 (1967) is authority for the proposition that a voluntary plea of guilty effects a waiver of trial by jury.

Affirmed.