text:
    Mrs. J. Fred (Mildred) ALEXANDER, Executrix v. Dorothy Helen ALEXANDER, Executrix
    77-34
    561 S.W. 2d 59
    Opinion delivered January 9, 1978
    (In Banc)
    [Rehearing denied February 27, 1978.]

      Loyd T. Harper and Me Math, Leatherman & Woods, for appellant.

      W. Dane Clay, of Rose, Nash, Williams, Carroll, Clay & Giroir, for appellee.
   John A. Fogleman, Justice.

This case involves litigation in the probate and chancery courts of Crawford County between Mrs. J. Fred (Mildred) Alexander, the widow and executrix of the estate of J. Fred Alexander, and Dorothy Helen Alexander, the executrix of the estate of his son, Caruth M. Alexander. The basic conflict is over interpretation of the will of J. Fred Alexander, who died on August 10, 1956. In addition to his widow Mildred, he left one son, Caruth M. Alexander (sometimes referred to as Caruth M. Alexander II) and one daughter, Mary Mildred Alexander. Fred’s will, dated April 16, 1956, was admitted to probate on August 20, 1956. At that time, both of his children were adults and neither of them had any children.

Pertinent paragraphs of his will read as follows:

2. I give, devise and bequeath to my wife, Mildred Alexander, one-half of all the property of my estate, be the same real, personal or mixed, of whatsoever kind and nature wheresoever situated, in lieu of dower, the same to be hers absolutely and in her own right, said one-half not to be charged with any part of the debts, taxes or the expenses of administration of my estate, such debts, taxes and expenses to be chargeable to and payable from the remaining one-half of my estate.
3. All the rest and residue of my estate, be the same real, personal or mixed, of whatsoever kind and nature and wheresoever situated, I give, devise and bequeath to my wife, Mildred Alexander, in trust however for my only son, Carruth M. Alexander, and my only daughter, Mary Mildred Alexander, after the payment of all debts, taxes, including Federal and State estate and/or inheritance taxes, which debts, taxes and expenses are to be charged to this said residue in such manner that one-half of my estate before payment of such debts, taxes and expenses shall go to my wife, Mildred M. Alexander, free of any such charges. I further give, devise and bequeath to my said wife all the income from the trust estate during her lifetime.
4. After the administration of my estate and the payment of all debts and taxes, it is my will and desire that my trustee herein named have full and complete authority to sell and dispose of any portion or all of the personal property of the trust estate and I authorize and empower her to invest and reinvest all personal property of the estate in any manner and at any time she may desire, and request and direct that she not be required to account to the court therefor.
5. It is my will and desire that my wife, the said Mildred M. Alexander, shall have the right to invade, use and enjoy the corpus of the trust estate at any time she may deem necessary.
6. It is my will and desire that all or any part of my real estate, whether a part of the trust estate or otherwise, may be sold and disposed of at any time at private sale or otherwise by and under the agreement of the said Mildred M. Alexander, Caruth M. Alexander and Mary Mildred Alexander and the execution of a deed or other conveyance by them shall be sufficient evidence of such agreement.
7. At the death of my wife the above mentioned trust shall cease and title to all property, real, personal or mixed, shall vest in the said Caruth M. Alexander and Mary Mildred Alexander in equal shares. In the event of the death of my son, Caruth M. Alexander, without issue, prior to the death of my wife, Mildred M. Alexander, then it is my will and desire that the provision hereinbefore made for him shall lapse and the whole of such residue, after the death of my said wife, go to my said daughter, Mary Mildred Alexander, or to her children if she be then deceased.
8. I hereby nominate, constitute and appoint my wife, the said Mildred M. Alexander, as executrix of my estate under this my last will and testament and request the court to permit her to serve as such without bond or other security for the faithful performance of her duties as such.

An inventory was filed on June 25, 1957, listing all property of the estate. Certain personal property was sold by the executrix, with the approval of the probate court. An accounting was filed on October 10, 1959. The next accounting was filed March 1, 1961, stating that stock in the Commercial Bank, owned by the estate, had been distributed and delivered to Caruth M. Alexander, that a note of Caruth payable to the estate had been cancelled and certain cash and two farms conveyed to Mary Mildred Alexander, so that the distribution to the two children was equalized. This annual accounting was approved and confirmed by the probate court on May 1, 1961. In November or December of each of the next four years, an annual account was filed by the executrix, in which she simply stated that “all income received from the estate is the property of Mrs. J. Fred Alexander under the will and there are no changes from the previous account filed herein. ” These accounts were approved by the probate court. Similar accounts were filed in subsequent years and only one of these varied from the pattern of the others. In December, 1968, the account revealed that 76.4 acres of cotton and 105 shares of Sunray D-X Oil stock had been sold. This account was approved by the probate court in December, 1969.

In the meanwhile, Caruth had died on May 29, 1967, leaving a widow, Dorothy G. Alexander (who was appointed executrix of his estate) and one child, Caruth M. Alexander III, who was born January 1, 1960. Caruth’s will was admitted to probate on June 19, 1967. On July 27, 1970, Dorothy, as executrix of the estate of Caruth, filed a petition for an accounting in the estate of J. Fred Alexander, alleging that Caruth had a remainder in one-half of the residuary trust under Fred’s will, and asking that the executrix under that will be required to make a complete accounting for the estate as of May 19, 1967, and on the current date, reflecting all dispositions and distributions of assets remaining in the residuary trust. An order of the probate court was entered on this petition, directing the executrix of Fred’s estate to make such an accounting.

On January 18,1971, appellant filed an accounting, purportedly covering the period beginning January 20,1961 and ending on December 31, 1970, described by her as a “revised annual accounting for years 1961 through 1969 and annual accounting for 1970.” In Schedule A of that account under the heading, charges to accountant, the following statement appeared: “All real estate intact except the following, which was sold by agreement of the three beneficiaries under the agreement attached hereto as Exhibit “A” and the terms of the will. Conveyed property was erroneously omitted from prior accountings.

A. One-half interest in building in Van Burén, Arkansas, sold to Thel Bowlin in 1957, and distributed to beneficiaries.

B. Sec. 7, Twp. 9, Range 29 — 40 acres conveyed July, 1964, to Caruth Alexander.

C. Sec. 16, Twp. 9, Range 29 — 60 acres sold to Paul Alexander in 1965.”

Exhibit A was an agreement dated January 15, 1959, purportedly signed by Mary Mildred Alexander, Caruth M. Alexander and Mrs. J. Fred Alexander. This account was confirmed by the probate court on February 19, 1971. In the meantime, on February 1, 1971, a deed by the executrix conveying all property of Fred’s estate to Mildred Alexander, signed by her as executrix, had been recorded. It was also dated February 1, 1971.

On May 3, 1971, appellant filed a “Final Account and Petition and Order Allowing Final Account, Distribution and Discharge,” and incorporated therein accounts previously filed covering the period from August 20, 1956 to December 31, 1970, alleging that distribution had been made in full to Mildred Alexander as the person entitled thereto according to the terms of the will and the agreement just mentioned. It was alleged by this agreement, Fred’s two children had waived any present or future rights in his estate. Dorothy, as executrix of Caruth’s estate, filed objections, alleging that Caruth III was then the beneficiary of the residuary trust created by the last will and testament of his father, and that the purported agreement between the widow and children of Fred was not genuine, was without consideration and was ineffective to convey either the contingent remainder of Caruth in the residuary trust under Fred’s will or the remainder interest of Caruth III. Objection was also made to all accountings, on the ground that they were not in compliance with the court order entered upon the petition of the executrix of Caruth’s estate. In this pleading, this executrix also asked that Mildred Alexander be required to account fully for her administration of Fred’s estate and to reconvey to the estate or the residuary trust all property conveyed by her as executrix to herself individually and that the purported agreement between the widow and children of Fred be expunged from the records of Crawford County.

In July, 1973, Mary M. Alexander and Mildred M. Alexander filed a suit in the chancery court, seeking to require Dorothy, as executrix of Caruth’s estate, to specifically perform the alleged agreement among the widow and children of Fred by delivering to them the plaintiff’s 300 shares of stock in the Commercial Bank of Alma, and to perform certain other alleged obligations under that agreement.

On February 25, 1975, the chancery case and the pertinent matters pending in the probate court in the estates of J. Fred Alexander and Caruth M. Alexander II were consolidated for trial. On July 12, 1976, the chancellor and probate judge rendered an opinion in the consolidated cases and entered a separate order in each case. In the opinion, the judge held that the will of J. Fred Alexander did not vest a fee simple interest in his estate in his widow; that Paragraph 3 gave the life “tenant” of the trust the income therefrom and that Paragraph 4 allowed the trustee to dispose of the personal property without accounting; that the executrix of this estate should give evidence of her disposition of this property in the form of an account current in detail and an accounting at the date of the death of Caruth Alexander, with credit to be given for conveyances made by agreement of all parties and execution of a deed by them pursuant to Paragraph 6 of Fred’s will; that the deed of executrix to herself individually should be cancelled and set aside as a disposition of trust realty not in conformity with Paragraph 6, and as unauthorized and overreaching; that the contentions of Mrs. Mildred Alexander as to her power of invasion and disposition of the corpus of the trust were denied; and that, thereafter, sales or disposition of other real estate of the trust will require the assent of the surviving three heirs, or their estates or successors; that, even though Fred’s widow has a right, when necessary, to invade the corpus of the trust, she must show that the invasion is necessary, and give notice of the transfer and conveyance of any real property to other interested parties and “assent” be obtained from the residuary beneficiaries. The court directed the closing of Fred’s estate and the establishment of a trust estate in the chancery court and the removal of Mildred Alexander as executrix and trustee.

Mrs. J. Fred (Mildred) Alexander had never separated or segregated the property of her husband which passed to her under Paragraph 2 of his will from the one-half to be held by her in trust, taking the position that under the will she took all property absolutely in fee. Her contention was that the will gave her the power to dispose of all property as she desired to the exclusion of the remainder interest of the two children. She further contended that, even if she were found not to have been left a fee simple interest, that her power to invade, use and enjoy the corpus and dispose of it by conveyance or otherwise gave her the power or right, as trustee, to convey the property to herself, as she had done, and that this conveyance defeated the rights of any remaindermen. She also contended, in the alternative, that she acquired the entire estate under an agreement with Caruth M. Alexander II, by a purported codicil to the will of J. Fred Alexander and by a codicil to Caruth’s will. Mary M. Alexander joined Mildred Alexander in pleadings and appearances by counsel, but did not testify.

On the other hand, Dorothy Alexander, as widow of Caruth, mother of Caruth III and executrix of Caruth’s estate, contended that Caruth had an inalienable and unalienated contingent remainder interest under the provisions of Fred’s will, that she was entitled to a full accounting in the estate of J. Fred Alexander and its interest in the trust property, and that the deed from the trustee under Fred’s will to herself as an individual should be cancelled and Mildred Alexander removed as trustee.

The trial judge construed the will to vest a fee simple interest in only one-half of the estate in Fred’s widow, and a “life tenancy” in the income from the trust consisting of the other one-half and the absolute power of disposition of the personal property, without accounting to anyone. He found that there was no evidence to indicate that the invasion of the corpus of the trust by the deed of Mildred Alexander, as trustee to herself individually was necessary, reasonable, or in good faith. He found that the purported agreement among Fred’s widow and children was ineffective, that Caruth and Mary Mildred acquired contingent interests in the testamentary trust and that the grandchildren of the testator took an interest in the trust which prevented conveyance of the interest by Caruth because of the birth of Caruth III. It was also held that Caruth III succeeded to the interest of his father in the trust estate.

Although the trial judge held that Caruth had a “contingent interest” in the testamentary trusts and that, when Caruth died, his only issue, Caruth III, became the holder of this “contingent interest” and found the issues in favor of the appellee, it has been suggested that, upon the authority of Watkins v. Quarles, 23 Ark. 179, Fred’s will vested a defeasible fee in Caruth. Appellant has not argued here that this is so. For the purposes of this appeal, the question whether Caruth held a defeasible fee or a contingent remainder is of no consequence, even if that question was actually ever in issue in the trial court. There was no conveyance of the contingent remainder or defeasible fee by Caruth to anyone, unless it was accomplished by an alleged agreement among the widow of the testator (Mildred) and his two children (Caruth and Mary Mildred). If we assumed that Fred’s will vested a defeasible fee in Caruth, it would pass under Caruth’s will, in the absence of this alleged agreement.

Appellant contends that Caruth conveyed his interest during his lifetime by an agreement with the widow and Mary Mildred. This and other arguments made by appellant turn upon this agreement. But it is not even properly before us. On the second day of the trial, appellant’s trial attorney stated that Mildred Alexander would stand on the will alone and “withdraw the agreement and codicil, because we are firmly convinced, under the will, she had the power to convey,” adding, “so we will withdraw any evidence regarding the agreement and the codicil and stand on the interpretation of the will itself. ” New or substituted counsel is not licensed to revive issues which have been abandoned in the trial court.

Appellant contends that the court erred in denying Mrs. J. Fred Alexander the power of invasion and disposition of the corpus of the trust estate. It is rather difficult to relate appellant’s statement of this point and her argument to the judgment entered in the probate court. As we view it, the court did construe the will to give the widow the power to invade the corpus, although it did require a showing that invasion was necessary. Perhaps appellant intended to attack the limitation upon invasion by the widow and disposition by the trustee, but we are unable to find any holding that these rights and powers did not exist.

Appellant next contends that the court erred in holding that Fred’s will did not vest the fee simple title to the entire estate in his widow. We agree with the trial court and disagree with appellant. At the outset, we observe that it would be very strange for a testator to have added at least three paragraphs to his will creating a trust and providing for its termination and for the application of the income, if he intended that the wife have a fee simple title. To say that he did would defy common sense and reason. See Lawrence v. Lawrence, 225 Ark. 500, 283 S.W. 2d 697.

Appellant’s reliance is placed upon cases, such as Bernstein v. Bramble, 81 Ark. 480, 99 S.W. 682, having no application to the facts here. See Archer v. Palmer, 112 Ark. 527, 167 S.W. 99. This will is not one in which a fee simple title is first created and by later terms an effort is made to limit the grant, as was the case in Bernstein. This is not the question presented. The question is whether the testator, by conferring on his widow the right of invasion, use and enjoyment of the corpus created a fee simple title. See Pearrow v. Vaden, 201 Ark. 1146, 148 S.W. 2d 320; Archer v. Palmer, supra. It is obvious to us that the probate judge was correct in holding that he did not. Only an undivided one-half interest in the property was vested in the widow absolutely. The other one-half was vested in her in trust for the testator’s children, with the wife to receive all income from the trust during her life. The absolute power of the trustee to dispose of property without accounting to the court was limited to personal property. Mildred Alexander was vested with the right to invade, use and enjoy the corpus of the trust estate any time she deemed necessary. In considering the meaning of these terms, the words use and enjoy are somewhat synonymous. The word “use” in this context means to enjoy, hold, occupy, or have in some manner the benefit thereof; and, as to real estate, its use is its occupancy or cultivation or the rent which can be obtained for its use. Galloway v. Sewell, 162 Ark. 627, 258 S.W. 655. The right to “use and control” does not vest absolute title. Blanton v. First National Bank of Forrest City, 142 Ark. 404, 219 S.W. 305. See also, Fields v. Kline, 161 Ark. 418, 256 S.W. 355; Pierce v. Lowe, 221 Ark. 796, 256 S.W. 2d 43. Likewise, “enjoy” has a similar meaning in this context. This word in instruments of transfer means to make such use of the thing transferred as is consistent with the tenure by which it is held. Ex parte Okahara, 191 Cal. 353, 216 P. 614 (1923). The accepted definition is “to have, possess and use with satisfaction, to occupy or have the benefit of.” Wiant v. Lynch, 104 W. Va. 507, 140 S.E. 487 (1927); Board of Trustees of Westminster College v. Dimmitt, 113 Mo. App. 41, 87 S.W. 536 (1905). The right to “use and enjoy” is an ordinary incident of a life estate, and the word “enjoy” conveys the idea of retention rather than disposition and does not signify sale or disposal. Wiant v. Lynch, supra. The right of Mildred Alexander to use and enjoy the trust corpus was consistent with her right to the income for life and did not confer any right on her to dispose of any part of it. Any right that she had to dispose of the corpus must be found in the word “invade.” The right to invade the corpus means the right to infringe or encroach upon it. Webster’s New International Dictionary (2d Ed.) This power, however, is not, in and of itself, a power of disposition. The fact that the life beneficiary of the trust may invade the corpus does not mean that the life beneficiary may convey the trust property.

The right to invade the corpus was vested in the wife as beneficiary and not as trustee and no rule of public policy prohibits a testator from conferring this right on a beneficiary. In re Houghton's Estate, 118 Vt. 228, 105 A. 2d 257 (1954); In re Solinger's Estate, 4 Misc. 2d 79, 155 N.Y.S. 2d 831 (1956). See also, In re Nathan's Estate, 17 Misc. 2d 822, 186 N.Y.S. 2d 185 (1959); In re Walsh's Will, 85 N.Y.S. 2d 207 (1948). Conferring on a life tenant a broad power of invasion does not convert a life estate into a fee, even though the power is unrestricted so that the remainder may ultimately amount to little or nothing. Connecticut Bank & Trust Co. v. Lyman, 148 Conn. 273, 170 A. 2d 130 (1961). Even if the right of invasion by a life tenant were considered to be equivalent to an unlimited power of disposition, the life estate would not be converted to a fee simple title, because the power of disposition is only an authorization to create an estate derived from the will of the testator and not a right to the property or an estate in itself. City of Little Rock v. Lenon, 186 Ark. 460, 54 S.W. 2d 287; Archer v. Palmer, supra; State v. Gaughan, 124 Ark. 548, 187 S.W. 918. This is true in spite of the fact that a conveyance by a life tenant to a third party might actually defeat the rights of a remainderman. Pearrow v. Vaden, supra; Union & Mercantile Trust Co. v. Moore, 143 Ark. 519, 220 S.W. 820; Owen v. Dumas, 200 Ark. 601, 140 S.W. 2d 101. If the testator had intended to vest thfe fee simple title in his widow, a provision for invasion by her would have been unnecessary and mere surplusage. See Lawrence v. Lawrence, supra; Jackson v. Robinson, 195 Ark. 431, 112 S.W. 2d 417.

In the will before us an express trust was created under which Mildred Alexander held title as trustee for the ultimate beneficiaries designated in Paragraph 7 of the will. This negates the idea that the testator intended that his widow be vested with a fee simple title. Lawrence v. Lawrence, supra; Owen v. Dumas, supra.

Appellant next contends that the trial judge erred in ordering that all future sales and dispositions of the trust property must have the assent of all the beneficiaries. As we have pointed out, the right to invasion of the corpus is vested in the widow, not the trustee. It appears to us that Paragraph 6 of the will is not a limitation on her right to invade the corpus whenever she deems it necessary. That paragraph relates solely and only to sales by agreement of the parties unrelated to any invasion of the corpus. Only by reading something into the clause could it be said that there was any intention to require an agreement of all parties before there could be an invasion of corpus. It seems to us that this provision simply enabled the widow and children to dispose of real estate constituting a part of the corpus of the trust by agreement, but without invasion of the corpus. This part of the court’s judgment was not within the jurisdiction of the probate court if it was an attempt to administer the trust. The probate court is a court of limited and special jurisdiction, having only such powers as are expressly granted by statute or the constitution or necessarily incident thereto. Hilburn v. First State Bank of Springdale, 259 Ark. 569, 535 S.W. 2d 810. Its jurisdiction is set out in Art. 7 § 34 of the Arkansas constitution, as amended by Amendment 24, § 1. Even though the amendment authorized the General Assembly to consolidate chancery and probate courts, this has not been done. Nothing in these constitutional provisions gave the probate court the power to administer the trust created by J. Fred Alexander’s will. This jurisdiction is exclusively in the chancery court. Spradling v. Spradling, 101 Ark. 451, 142 S.W. 848.

The jurisdiction of the chancery court was invoked only in the action in which appellant sought specific enforcement of an alleged agreement among the widow and children. The counterclaim of appellee did seek cancellation of the agreement and the deed upon which Mildred Alexander relied in support of her claim that she was the owner of all real estate which was subject to the residuary trust. To that extent a construction of the will was required, but this did not justify or confer jurisdiction to impose the restrictions placed on future sales and conveyances.

Appellant also asserts that the court erred in cancelling the agreement of January 15, 1959 among the widow and children (of which specific performance had been sought) and any conveyances made thereunder and in refusing to admit a purported codicil to the will of J. Fred Alexander to probate. It is sufficient to say that appellant is in no position to complain of the court’s action as to the agreement or the codicil. As previously pointed out, neither instrument was in evidence or in issue.

The only specific argument advanced by appellant directly relating to the cancellation of the deed of real estate to Mildred Alexander individually is devoted to the contention that she had the fee simple title, or if not, she had the right to invade and dispose of the estate. However, in reviewing appellant’s first argument, the argument in her reply brief that Paragraph 6 of the will is the only possible limitation on Mildred Alexander’s power of disposition and the statement in the conclusion of the reply brief that since she had the right to convey property to herself because of her right to invade, use arid enjoy the corpus of the trust, the estate has no assets and should be closed and the executrix discharged, it is necessary that we address ourselves to the validity of the “invasion” of the corpus by this deed.

The right to invade, use and enjoy the corpus of the trust estate at any time she may deem necessary is not without limitation, especially where a trust is involved. An attempted gift of property by the life tenant is void as to remaindermen, particularly when the property is held in trust. Owen v. Dumas, supra. See also, U.S. v. Moore, 197 Ark. 664, 124 S.W. 2d 807; Iwerson v. Dushek, 260 Ark. 771, 543 S.W. 2d 942. A simulated conveyance is also void. Reddin v. Cottrell, 178 Ark. 1178, 13 S.W. 2d 813. See also, Archer v. Palmer, supra. Self-dealing by a trustee or any fiduciary is always suspect. It is a universal rule of equity that a trustee shall not deal with trust property to his own advantage without the knowledge or consent of the cestui que trust. Patterson v. Woodward, 175 Ark. 300, 299 S.W. 619; Selig v. Morrison, 230 Ark. 216, 321 S.W. 2d 769. The policy of the law demands such a strict adherence to duty that no temptation to weigh self-interest against integrity can be placed in a trustee’s way, so that, where a vendor has a fiduciary duty and has an interest in the purchase, the law stamps the act as fraudulent per se. McGaughey v. Brown, 46 Ark. 25. Where there are several beneficiaries the trustee owes the same fiduciary duty to all of them to protect their respective interests, without partiality or favor to some beneficiaries at the expense of others. He owes a contingent beneficiary the same fiduciary duty he owes one with a vested interest, insofar as protection of the rights of the contingent beneficiary is concerned. Selig v. Morrison, supra. The duty is particularly applicable where the trustee has a beneficial interest in the trust property. In re Coyle’s Estate, 200 Misc. 421, 104 N.Y.S. 2d 260 (1951). This means that the trustee could not change the title to property constituting a part of the corpus of the trust to herself without the knowledge of the cestui que trust. McDonald v. Hartford Trust Co., 104 Conn. 169, 132 A. 902 (1926). A trustee simply cannot convey property to himself when the terms of the trust do not specifically authorize him to do so. Oliver v. Culpepper, 209 Ark. 326, 190 S.W. 2d 457.

Although the widow’s discretion in this case is quite broad, it is not without any limitations. The words “deemed necessary” imply a requirement of good faith in the exercise of an otherwise unlimited exercise of discretion. Case Note 95, Univ. Pa. Law Rev. 241, 242. As the writer there points out, the word “deemed” means “considered, determined or adjudged” and “deem” signifies a deliberate exercise of judgment, rather than an arbitrary exercise of will. See also, Webster’s New International Dictionary (2d Ed.); In re Smith’s Estate, 129 Misc. 497, 222 N.Y.S. 588 (1927).

Even when the testamentary grant creates a life estate rather than a trust, the life tenant having the discretion to dispose of the subject property for his own benefit must exercise his discretion in good faith and not squander or waste the property to prevent the remainder of the estate from going to the remainderman. Stocker v. Foster, 178 Mass. 591, 60 N.E. 407 (1901); Annot. 2 ALR 1243, Supplemented 27 ALR 1381, 69 ALR 825, 144 ALR 946. See also, Pearrow v. Vaden, 201 Ark. 1146, 148 S.W. 2d 320. A life tenant normally has the duty to conserve the estate. Love v. McDonald, 201 Ark. 882, 148 S.W. 2d 170. The power of invasion by the life tenant of “as much of the principal ... as in his judgment is necessary and proper” must be exercised in good faith. In re Brigg’s Will, 223 N.Y. 677, 119 N.E. 1032 (1918). See also, In re Smith’s Estate, supra. A power “to be used for his own personal benefit insofar as he requires it” does not limit the power to the “needs” or “support” of the life tenant, but it requires action in good faith toward the remainderman. In re Robinson’s Will, 101 Vt. 464, 144 A. 457, 75 ALR 59 (1929). Even the demand or request by a lifetime beneficiary of a trust having the power to consume the corpus must be made in good faith and not for the purpose of depleting the corpus and defeating the intention of the settlor. Ray’s Estate, 39 Pa. D.&C. 502 (1940). See also, Saurmann's Estate, 39 D.&C. 629 (1940). Where _the purpose of the income beneficiary with sole discretion to invade the corpus is to defeat the rights of the remainderman, the exercise of the discretion is not in good faith. Groesch Estate, 29 Pa. D.&C. 2d 155 (1962). See also, Stocker v. Foster, supra. It has been held that a demand for the entire corpus of a trust by a surviving spouse having an absolute power of invasion is premature when made before the trustee has come into possession of the corpus. Criswell Estate, 27 Pa. D.&C. 2d 83 (1961). Such a demand at any time must be in good faith and not the result of disagreements. In re Smith’s Estate, supra.

This case is readily distinguishable from Johnson v. Lehr, 192 Ark. 1004, 96 S.W. 2d 20 and Weeks v. Weeks, 211 Ark. 132, 199 S.W. 2d 955. There was no trust involved as to the residuary estate in either of those cases-, as there is here. In Johnson, there was no controversy between the life tenant and remaindermen. The litigation was between the life tenant’s grantee, who does not appear to have been a donee, and a prospective purchaser from the grantee. More importantly, however, the remainder in both Johnson and Weeks was described in terms differing from those used here. In Johnson, the court found an implied power of sale in and devise and bequest to the widow “for her own personal use, as long as she may live and at her death should there be any property or moneys left after the payment of her funeral expenses and debts ... it is my desire that the residue be divided equally between my nephew . . . and the heirs of my beloved wife .. . meaning tftat the entire half (Vi) of the residue, if there be any, shall go to my nephew . . . and the other one-half to be given to her heirs ... ” (Emphasis added.) In Weeks, the testator left the property to the widow “for her own personal use so long as she shall live, and at her death I direct that whatever remains of said bequest be divided between my son . . . and my daughter . . . , share and share alike. ” There is no such qualifying language in describing the remainder here, even though it is subject to the widow’s right of invasion. Further, there is no limitation that the life tenant in those cases should “deem [an invasion] necessary.”

When the exercise of a life tenant’s discretion is questioned by remaindermen in a proceeding against the life tenant, and not a bona fide purchaser, the burden of showing that an exercise of the power was in good faith rests on the life tenant. See Stocker v. Foster, supra. Even a party having an uncontrolled discretion to apply the corpus of a trust for the benefit of a beneficiary entitled to all the trust income during his lifetime, must exercise that discretion in good faith. Lees v. Howarth, 85 R.I. 321, 131 A. 2d 229 (1957); Case Note, 60 Harvard Law Rev. 320, 321. The requirement of good faith in the exercise of the right to invade the corpus is at least as great when a trust relationship is involved, as it is when the relationship is simply that of life tenant and remainderman. See First National Bank & Trust Co. v. Finkbiner, 416 P. 2d 224 (Wyo., 1966); Plummer v. Roberts, 315 Mo. 627, 287 S.W. 316 (1926); Blunt v. Kelly, 131 F. 2d 632 (3 Cir., 1942). It is also a rule of evidence that, on a trial where a fiduciary and a beneficiary are the adverse parties, the burden rests on a fiduciary to explain and justify transactions in which he may have acted to his own advantage at the expense of the beneficiary. Barnett v. Ross, 333 Pa. 510, 3 A. 2d 923 (1939); Foley v. D’Agostino, 21 A.D. 2d 60, 248 N.Y.S. 2d 121 (1964); Accord, Bond v. Marlin, 199 Ark. 806, 136 S.W. 2d 460.

While the clauses of the will differ as to personal property, we think that Mildred Alexander was under a trust obligation to the remaindermen as to the proceeds of any sale of personalty. Patty v. Goolsby, 51 Ark. 61, 9 S.W. 846. The right of the holder of a “life estate” to use money or its equivalent permits consumption of interest or income therefrom. Chambers v. Williams, 199 Ark. 40, 132 S.W. 2d 654. Of course, the owner of a “life estate” in personalty that is consumed or worn out by use, does not have the same duty to preserve it for the remaindermen. Dillen v. Fancher, 193 Ark. 715, 102 S.W. 2d 87; Fields v. Kline, 161 Ark. 418, 256 S.W. 355.

There is a total absence of any showing of good faith of Mildred Alexander in the exercise of her discretion in this case. There was no error in the cancellation of the deed or in requiring the executrix to render an accounting for both real and personal property, at least sufficient to permit identification of the trust corpus. Of course, she should not be required to account for any of the income from any of the property.

The causes are remanded to the probate and chancery courts for entry of judgments and decrees and for further proceedings not inconsistent with this opinion.

       It is not clear to us that the statement in appellee’s brief that it is only real estate with which the court is now concerned operates to relieve appellant from any accounting for personal property, because we are not familiar with the terms of the distribution made. If the parties treated the personalty and the realty as if the will provided for an outright bequest of one-half of the personalty and an outright devise and bequest of the one-half of the total assets of the estate, perhaps there would be no necessity for accounting for personalty, if Caruth III was bound by these actions. This distribution does not seem to have been taken into account by the trial court and we have not been referred to the record of these transactions in the transcript.


source: Caselaw Access Project

author: Conley Byrd, Justice.

license: Public Domain

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. William LaSAGE
    77-297
    559 S.W. 2d 702
    Opinion delivered January 9, 1978

      Laser, Sharp, Haley, Young & Huckabay, P.A., for appellant.

      Matthews & Sanders, for appellee.
   Conley Byrd, Justice.

The uninsured motorist policy issued by appellant State Farm Mutual Automobile Insurance Company limits coverage to a hit and run motor vehicle “which causes bodily injury to an insured arising out of physical contact of such vehicle with the insured or with a vehicle which the insured is occupying.” The trial court disagreed with the appellant’s contention that this limited coverage to those situations in which the physical contact was a proximate cause of the injuries and entered a judgment in favor of appellee William LaSage in the amount of $7,500 together with the 12% penalty and a $1500 attorney’s fee. For reversal appellant contends there is no substantial evidence that the physical contact with the hit and run motor vehicle was a proximate cause of appellee’s injuries.

The facts giving rise to this litigation show that LaSage was driving his automobile along interstate 30 near the Geyer Springs exit in Little Rock, Arkansas, when he was struck by a hit and run vehicle. When the vehicle failed to stop LaSage gave chase for the purpose of attracting the attention of the police and to identify the license number on the hit and run vehicle. The chase ended in the 1300 block on Hilaro Springs Road when the hit and run vehicle suddenly stopped in the center of the road in such position as to force LaSage to either strike it or run into the ditch. LaSage took the option of going into the ditch and was injured when his vehicle struck a culvert.

Appellant, in reliance upon some language lifted out of Springer v. Government Employee’s Insurance Company, 311 Southern 2nd, 36 (Louisiana Appeal, 1975), and Allstate Insurance Company v. Basore, (Missouri Appeals, 1963) 374 S.W. 2d 626, argues that in construing the hit and run provisions in uninsured motorist policies the courts in upholding the physical contact requirement have held that such contact must be a proximate cause of the plaintiff’s injuries and not a mere circumstance thereof. We do not read the cases relied upon by appellant as sustaining its position. At any rate since this is a case of first impression in Arkansas we take the position that “arising out of” cannot be construed to mean “proximately caused by”. This same contention was made in Manufacturers Casualty Insurance Co. v. Goodville Mutual Casualty Co., 403 Penn. 603, 170 A. 2d 571 (1961), wherein Manufacturers Casualty Insurance Company insured the pick-up truck pulling a trailer and Goodville Mutual Casualty Company insured the trailer being pulled. In dismissing the contention that “arising out of” meant “proximately caused by” the court there stated:

“Goodville contended in the court below, and now here, that this accident was not one ‘arising out of the ownership, maintenance or use of’ the horse trailer. With that contention, the court below agreed, holding that ‘arising out of’ must be construed to mean ‘proximately caused by. ’ However we do not so interpret the words ‘arising out of.’
In Suburban Service Bus. Co. v. National Mut. Casualty Co., 237 Mo. App. 1128, 183 S.W. 2d 376, 378, St. Louis Ct. of Appeals, Mo., 1944, it was said, ‘The words “arising out of the use of the bus” are very broad, general, and comprehensive terms. The insurer made no attempt to limit the plain, usual, and ordinary meaning of the term “use. ” We find nothing in the policy requiring that the use of the bus shall be the direct and proximate cause of the injury. The words “arising out of the use of the bus” are much broader than words such as “directly and proximately caused by the use of the bus.” ’
In American Fire & Casualty Co. v. Allstate Ins. Co., 4 Cir. 1954, 214 F. 2d 523, the owner of a Chrysler automobile, while towing his jeep, was involved in an accident with another automobile. Suit was instituted against him by two occupants of the latter vehicle. The Chrysler and the jeep were insured by different companies. Both insurers participated in his defense, but the insurer of the jeep reserved a right to disclaim liability. After settlement of the suits and payment thereof by the insurer of the Chrysler, the insurer of the jeep disclaimed liability. The language of the policy which covered the jeep was identical with the language of the Goodville policy in the present case. The insurer of the Chrysler sued the insurer of the jeep for contribution. The court affirmed a judgment for the plaintiff, rejecting an argument that the Chrysler was solely responsible for the accident and holding that the accident was one ‘arising out of the * * * use’ of the jeep.
When the provisions of an insurance policy are vague or ambiguous, they must be construed strictly against the insurer and liberally in favor of the insured. Had the insurer desired to limit its liability to accidents with such a close causal connection to the ownership, maintenance or use of the trailer as to be encompassed within the scope of proximate causation, it could have and should have so stated in its policy. Construed strictly against the insurer, ‘a-ising out of’ means causally connected with, not proximately caused by. ‘But for’ causation, i.e., a cause and result relationship, is enough to satisfy this provision of the policy. ...”

See also Fidelity & Casualty Company of New York v. North Carolina Farm Bureau Mutual Insurance Company, 16 N.C. App. 194, 192 S.E. 2d 113 (1972).

During oral argument appellant attempted to raise the issue, not argued in its brief, that under any definition of “arising out of,” the injuries in this case were too remote to be included in the coverage. While it appears to us from the record that the remoteness of the injuries was a fact issue for the trial court we need not definitely decide because that issue was raised too late for determination in this court.

Appellee is allowed an additional attorney’s fee of $750.00 for his services in this court.

Affirmed.

We agree: Harris, C.J., and Fogleman and Howard, JJ-


author: Frank Holt, Justice.

text:
    E. L. BANKSTON v. George DAVIS and Johnny W. STARKEY
    77-122
    559 S.W. 2d 714
    Opinion delivered January 9, 1978
    (Division II)

      Guy H. Jones, Phil Stratton, Guy Jones, Jr., and Casey Jones, by: Phil Stratton, for appellant.

      C. Byron Smith, Jr., for appellees.
   Frank Holt, Justice.

The trial court dismissed Count Two of appellant’s complaint which alleged that the publication of false and defamatory statements by the appellees was “a wrongful interference with plaintiff’s employment contract and future economic and business expectancies.” The trial court held that the allegation sounded in tort and, therefore, was governed by the three year statute of limitations. Ark. Stat. Ann. § 37-206 (Repl. 1962). Appellant asserts that his cause of action does not clearly fall within the provisions of § 37-206 nor any other statute of limitations except Ark. Stat. Ann. § 37-213 (Repl. 1962) which provides for a five year period of limitation.

It is undisputed that Count Two of the complaint was asserted more than three years after the catise of action arose. In Mason v. Funderburk, 247 Ark. 521, 446 S.W. 2d 543 (1969), we said: “Under Arkansas law, a malicious arid wilful interference with contractual rights and relationships of another has been recognized as an actionable tort.” Further, we quoted with approval:

‘Intentional and unjustified third-party interference with valid contractual relations or business expectancies constitutes a tort, with its taproot embedded in early decisions of the court of England, . . . ’

Accordingly, the trial court was correct in holding appellant’s claim was barred by § 37-206, the applicable statute of limitation.

Affirmed.

We agree: Harris, C.J., and Hickman and Howard, JJ.


author: Darrell Hickman, Justice. John A. Fogleman, Justice,

text:
    PULASKI COUNTY ex rel, Roger C. MEARS, Jr., County Judge v. The Honorable Richard B. ADKISSON, Circuit Judge et al
    77-194
    560 S.W. 2d 222
    Opinion delivered January 9, 1978
    (In Banc)

      Jack D. Files, for petitioner.

      Lee A. Munson, Pros. Atty., by: John Wesley Hall, Jr., Dep. Pros. Atty., for respondents.
   Darrell Hickman, Justice.

The county Judge of Pulaski County filed with us a petition for a writ of prohibition asking that we prohibit two Pulaski County circuit judges from enforcing an order they signed in 1977 funding the Public Defender’s Program of Pulaski County.

We granted a temporary writ of prohibition on July 11, 1977. On review we make it permanent.

The Public Defender’s office of the Sixth Judicial District [Pulaski and Perry Counties] presently exists and operates by Act 279 of 1975. Section 3 of that Act reads:

The circuit court may create a Public Defender System for indigent persons accused of serious crimes in the district and provide for the compensation of such attorneys and investigators as is necessary and for the reasonable expenses of the office. These salaries and expenses shall be paid for the administration of justice from General Revenues of the county and without the necessity of a prior appropriation therefor by the quorum court.

The Pulaski County Public Defender’s office 1977 budget for a total of $185,284.76 was submitted and approved by two circuit judges. The budget provided for salaries for eight employees totalling $141,420.00; retirement money in the amount of $14,142.00; and, withholding for F.l.C.A. in the amount of $6,522.76. Also, the budget contained a provision for office supplies, postage and other miscellaneous expenses totalling $23,200.00.

Two of the four Pulaski County circuit judges, who make up the Criminal Division, had in the past signed orders approving the budget of the Public Defender’s office and directing Pulaski County to pay the money without an appropriation by the quorum court.

The two-judge order signed in June, 1977, stated:

. . . that the Proposed Budget submitted by the Public Defender, attached hereto, is approved and made a part of this Order, and the County Judge of Pulaski County is hereby ordered to pay said amounts with County General Funds without prior appropriation of the Quorum Court.

The Pulaski County Judge refused to pay any money from the county general fund and sought a writ of prohibition from us to prevent the circuit judges from enforcing the order.

We hold this order was entered without judicial authority because it determines and orders payment of salaries and expenses for the Public Defender’s office. Such action is a legislative and not a judicial function. The order and Section 3 of Act 279 — which authorizes the circuit court to set salaries — are in violation of the separation of powers doctrine of the Arkansas Constitution. Ark. Const.. Art. 4, § 2.

Prohibition is a proper remedy in this case because the circuit judges had no jurisdiction over the subject matter. Webb v. Todd Harrison, Circuit Judge, 261 Ark. 279, 547 S.W. 2d 748 (1977).

We emphasize that our decision is limited to the sole issue of the circuit court’s authority to set salaries. Although the parties raised numerous arguments, we do not at this time feel it necessary to rule on these matters.

Byrd, J., not participating.

Fogleman and Howard, JJ., dissent.

John A. Fogleman, Justice,

dissenting. Prohibition is an extraordinary and discretionary writ to be used cautiously. Karraz v. Taylor, 259 Ark. 699, 535 S.W. 2d 840. it should be issued by this court only when a trial,‘'court is attempting to act when it clearly has no jurisdiction or authority or is about to act in excess of its jurisdiction. Midwest Lime Co. v. Independence County Chancery Court, 261 Ark. 695, 551 S.W. 2d 537. The party seeking the writ must be clearly entitled to it. Midwest Lime Co. v. Independence Chancery Court, supra. It is to be issued only in cases of pressing necessity. Harris Distributors v. Marlin, 220 Ark. 621, 249 S.W. 2d 3. Of course, this does not mean that difficult legal questions, even constitutional ones, will not be decided in considering a petition for prohibition, but this court must be able to say upon the face of the record that the procedures of the trial court are erroneous or illegal, without the jurisdiction of the court, or in excess of its jurisdiction, before the writ should issue. State v. Nelson, 246 Ark. 210, 438 S.W. 2d 33. If there is any question of fact, the writ should be denied. Capital Transportation Co. v. Strait, 213 Ark. 571, 211 S.W. 2d 889; Duncan v. Kirby, 228 Ark. 917, 311 S.W. 2d 157. It is to be issued only when there is no adequate remedy at law by appeal or otherwise and no other protection from usurpation of judicial power. State v. Nelson, supra; Twin City Lines v. Cummings, 212 Ark. 569, 206 S.W. 2d 438; Rodriguez v. Adkisson, 254 Ark. 128, 491 S.W. 2d 814; Patrick v. Wood, 243 Ark. 418, 420 S.W. 2d 92. It is never issued to prohibit a trial court from erroneously exercising its jurisdiction. Skinner v. Mayfield, 246 Ark. 741, 439 S.W. 2d 651. It does not lie to review an order that has already been made. City National Bank v. Johnson, 191 Ark. 29, 79 S.W. 2d 987. I submit that prohibition is not a proper remedy in this case.

But my disagreement with the majority extends beyond its inappropriate use of this extraordinary writ. In my opinion, Act 279 of 1975 is a valid exercise of the legislative power. This act carries the same strong presumption of constitutionality that attends every legislative act and this requires that there be a clear incompatibility between the act and the constitution before it is held unconstitutional, and all doubts must be resolved in favor of the act. Jones v. Mears, 256 Ark. 825, 510 S.W. 2d 857; Carter v. State, 255 Ark. 225, 500 S.W. 2d 368, cert. den. 416 U.S. 905, 94 S. Ct. 1610, 40 L. Ed. 2d 110. If it is possible for the courts to so construe an act that it will meet the test of constitutionality, it must be so construed. Stone v. State, 254 Ark. 1011, 498 S.W. 2d 634.

The duty of the state to provide for effective assistance of counsel to indigent persons charged with felonies and certain misdemeanors is clearly mandated by the United States Constitution. Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799, 93 ALR 2d 733 (1963); Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964); Pointer v. Texas, 380 U.S. 400, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965); Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, 10 ALR 3d 974 (1967); Swenson v. Bosler, 386 U.S. 258, 87 S. Ct. 996, 18 L. Ed. 2d 33 (1967); Mempa v. Rhay, 389 U.S. 128, 88 S. Ct. 254, 19 L. Ed. 2d 336 (1967); Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493, reh. den. 388 U.S. 924, 87 S. Ct. 2094, 18 L. Ed. 2d 1377 (1967); Argersinger v. Hamlin, 407 U.S. 25, 92 S. Ct. 2006, 32 L. Ed. 2d 530 (1972); In re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967).

This responsibility in felony cases was recognized by the General Assembly of Arkansas at a very early date, long before the United States Supreme Court came to that conclusion. See Rev. Stat. Ch. 45, § 1J2; Ark. Stat. Ann. § 43-1203 (Repl. 1964). This court has taken the position that this right is mandated by the Arkansas Constitution. Therman v. State, 205 Ark. 376, 168 S.W. 2d 833. But for many years attorneys appointed under that act were not compensated, because there was no indication that the legislature intended that counsel be compensated in such cases. This court took the failure of the legislature to fix and direct the payment of such fees to indicate an intention that the services of such counsel be gratuitous. Arkansas County v. Freeman & Johnson, 31 Ark. 266. Based on this view, we said in that case that the county court could allow no claim for such services because the law made no provision for payment.

The appointment of counsel without any provision for compensation proved to be an unsatisfactory arrangement. In 1953, by its Act 276, the General Assembly started dealing with the problem. It provided for compensation to appointed attorneys in all counties whose population did not exceed 100,000, when the quorum court made an appropriation for that purpose. The amount of the fee was to be fixed by the appointing court in each case but was to be not less than $25 or more than $250. See Ark. Stat. Ann. §§ 43-2415, 2416. This act was appropriately criticized. The major criticisms were the requirement of quorum court appropriation and the elimination of Pulaski, the most populous county, from its application. Dunaway, Acts Affecting the Administration of Criminal Law, 7 Ark. Law Rev. 334. The conclusion of these comments by the writer, a former justice of this court, were appropriate. He said:

These two weaknesses in the Act are unfortunate, because the need for such a law has long been recognized. Since even lawyers are human beings, it stands to reason that one who is compensated for his work is more likely to do a better job. The necessity of paid assigned counsel or a system of public defenders, if impecunious defendants are to be properly represented, is clearly brought out and documented in the recent Survey of the Legal Profession on Legal Aid of the American Bar Association.

In 1971, the General Assembly apparently found this approach taken in 1953 unsatisfactory and passed Act 125 [Ark. Stat. Ann. §§ 43-2417, 2418 (Repl. 1975)|. That act eliminated the necessity of any appropriation by the quorum court and made the provisions of the earlier act applicable to all counties.

The emergency clause of Act 276 was a clear declaration of the state’s intention to meet its constitutional responsibilities, and, at the same time, it emphasized the deficiency in the existing system. In pertinent part it read:

It has been found and is hereby declared by the General Assembly that the payment of a fee as provided for in this Act will assure an accused who is without financial funds to secure his own attorney of adequate representation by counsel and will aid and assure him of the preservation of his constitutional rights and provide a reasonable compensation to an attorney for his time and services in representing an accused. ***

The emergency clause of Act 125 was a definite finding that previous measures had proven unsatisfactory. The first sentence of that clause read:

It has been found and is hereby declared by the General Assembly that in securing to an indigent, his constitutional rights under the Constitution of this State and of the United States, it is essential that counsel be furnished him and that said counsel be compensated for his time, out-of-pocket expenses, and services.

An additional step was taken in 1977 by Act 246. By that act the legislature increased the maximum fee allowance to $350 and added an investigation expense allowance not to exceed $100. That act, however, required the quorum court to appropriate from the county general fund adequate funds to pay such fees, upon receipt of an order of the circuit court fixing them. It also provided for disqualification of certain attorneys from appointment and stated that the appointing court’s fee allowance should be based upon the experience of the attorney appointed and the time and effort devoted by him in the preparation and trial, commensurate with fees paid other attorneys in the community for similar services. The provision leaving the amount of compensation in the discretion of the trial court was unaffected.

Meanwhile, there was still dissatisfaction with the appointed counsel system (see Moore, The Right to Counsel for Misdemeanors in State Courts, 20 Ark. Law Rev. 156) and experiments in the use of a public defender system were initiated. In three counties, Washington, Sebastian and Pulaski, public defender systems were established with funds from the Law Enforcement Assistance Administration, matched partially by state or county funds or services. See Case Note, Representation for Indigent Misdemeanants, 26 Ark. Law Rev. 563 (1972). Apparently, these experiments met with a sufficient degree of success to cause the Genera! Assembly to move in that direction. It provided for public defender systems in the Fourth Judicial District by Act 242 of 1975 and in the Sixth Judicial District by Act 279, the act in question here.

The public defender in Act 279 is an attorney appointed by the judges of the courts having jurisdiction of criminal cases to represent indigent defendants in criminal cases. The act is cumulative to all other acts providing for legal services to indigent persons. There is nothing in the act to indicate that the public defender or his deputies are public officers or employees or officers in any sense of the word, except for being officers of the court, just as are attorneys appointed under Ark. Stat. Ann. § 43-1203 and compensated under Ark. Stat. Ann. § 43-2417, 2418. A public defender appointed by the judiciary under this system is not a public officer or employee but is a private attorney representing defendants in criminal cases. Spring v. Constantino, 168 Conn. 563, 362 A. 2d 871 (1975). See also Ex parte Hough, 24 Cal. 2d 522, 150 P. 2d 448 (1944). The only difference between the appointed counsel system and the public defender appointed by the circuit court under Act 279 is that the former acts on a case by case basis and the latter on a permanent basis. State v. DeJoseph, 3 Conn. Cir. 624, 222 A. 2d 752 (1966). In People v. Mullins, 188 Col. 29, 532 P. 2d 736 (1975), the Supreme Court of Colorado said:

The appointment of a public defender does not differ significantly from the appointment of private counsel in an individual criminal case. Indeed, the appointment of a public defender is of greater benefit to a defendant who is thereby provided counsel who is employed solely in criminal defense work.

Act 279, unlike Act 246 of 1977, eliminates the necessity for any appropriation by the quorum court and requires payment of the compensation of the attorneys and investigators in the public defender system and its reasonable expenses as provided by the judges having jurisdiction of criminal cases.

I submit that in holding Act 279 of 1975 unconstitutional, the majority of this court has been diverted by a semantical red herring, i.e., the use of the word “salaries” in the act and by its unwarranted adoption of the word “office” as descriptive of the status of the public defender. Perhaps the legislature should have stuck with the word “compensation” that it used in the first sentence of § 3 and not shifted to “salaries” in the second. Basically, it meant compensation. Perhaps it should have used the word “fees” as it did in dealing with the problem in Act 246 of 1977. In any event, the use of the word “salaries” has not made something of a public defender that he is not, i.e., an officer or employee of the state or county.

. The total budget of the public defender system is $185,284.76. The General Assembly of 1975 knew that 2065 cases were filed in the Criminal Divisions of the Circuit Court of Pulaski County. Tenth Annual Report of the Judicial Department of Arkansas. It may not have known how many of these were indigent. The circuit judges knew that in 1976 there were 2026. They knew how many of these were indigents who were entitled to the services of appointed counsel. If there should be 2000 such cases in 1977 and only 25% of these cases involved indigent defendants and the maximum fees allowable under Act 246 of 1977 were appropriate, payment of $225,000 from the county treasury would be required to compensate appointed counsel. Perhaps in providing for the alternative to appointed counsel in each case the General Assembly could anticipate that a more efficient and more economical system of providing the constitutionally required effective assistance of counsel could be provided through Act 279.

We had no problem with the legislation allowing the appointing court to fix the amount of compensation to be paid to the attorney appointed. As a matter of fact, in Nail v. State, 231 Ark. 70, 328 S.W. 2d 836, we called it a salutary provision. We should have no problem here. It should be noted that there is statutory authorization for circuit judges to require the payment of expenses incident or necessary to a speedy and efficient administration of justice. Pope’s Digest § 2858; Crawford & Moses Digest § 2230.

I am sure that it is now obvious that I would deny the writ.

I am authorized to state that Mr. Justice Howard joins in this opinion.

       1 have not found any itemization of this total in any abstract of the record in this case.

       The compiler of Arkansas Statutes, Annotated, has not included this statute in that publication on the fallacious theory that it had been superseded by Ark. Stat. Ann. § 22-349.1 (Repl. 1962). That statute merely provided for payment of the expenses of judges and had no bearing whatever upon the expenses which were the subject of Pope’s Digest § 2858.


author: Darrell Hickman, Justice.

text:
    COLEMAN’S BAR-B-QUE & SHELBY MUTUAL INSURANCE COMPANY v. Patricia FULLER
    77-288
    559 S.W. 2d 714
    Opinion delivered January 9, 1978
    (Division I)

      Laser, Sharp, Haley, Young & Huckabay, P.A., for appellants.

      Bill H. Walmsley, for appellee.
   Darrell Hickman, Justice.

The facts in this Worker’s Compensation appeal are essentially undisputed. The Commission found that Patricia Fuller, the appellee, suffered a compensable injury when she went outside her place of employment on to the parking lot, slipped, fell and injured herself. The Circuit Court of Independence County affirmed the commission as we do on appeal.

The appellants argue on appeal that the Commission erroneously applied the “personal comfort doctrine” in awarding compensation to the appellee.

Patricia Fuller, age 38, married for fifteen years, and the mother of six children, had been employed at Coleman’s BarB-Que in Batesville for about six months. At first she did everything required of a waitress. About a month and a half before this incident she was promoted to manager. She usually worked from 11:00 a.m. until 7:00 p.m. and until 8:00 p.m. on Fridays and Saturdays. On Friday night, December 5, 1975, she had been told to work until 9:00 p.m. At about 7:30 or 8:00 p.m. she testified she thought she saw her husband drive up to Coleman’s and then start to back out of the parking lot. It was raining. She went outside to see what her husband wanted, slipped on the parking lot surface, and fell injuring herself. She could not testify as to whether the person that drove up was her husband or not. The vehicle was gone before she could reach it.

Mrs. Fuller testified that essentially her duties were inside Coleman’s although she was required as manager to see that the outside was generally clean. Occasionally it was necessary to go to a woodpile at the back of the premises.

The Commission in finding for Mrs. Fuller indicated that her action in going outside was an insubstantial deviation from her employment analogous to situations which are held compensable under the “personal comfort doctrine.”

The appellants argue that the “personal comfort doctrine” is limited and does not encompass the deviation of the employee in this case. Larson on Workmen’s Compensation defines the doctrine as:

Employees who, within the time and space limits of their employment, engage in acts which minister to personal comfort do not thereby leave the course of employment, unless the extent of the departure is so great that an intent to abandon the job temporarily may be inferred ... I Larson, Law of Workmen’s Compensation § 21.00 (Ed. 1952).

Injuries suffered by employees, who at the precise moment of the accident, are not acting within the course and scope of their employment may be compensated if their temporary departure from the job is not great. The deviation in this case was obviously slight.

Mrs. Fuller’s actions were so normal and understandable, and her deviation was so slight as to leave little room for serious argument that she should not be compensated under the Worker’s Compensation Laws.

The appellee requests and we grant an additional attorney’s fee in the sum of $250.00.

Affirmed.

We agree. Harris, C.J., and George Rose Smith and Howard, JJ.


author: George Howard, Jr., Justice.

text:
    Gloria WALKER v. Ronnie WALKER
    77-124
    559 S.W. 2d 716
    Opinion delivered January 9, 1978
    (Division I)

      Tom Donovan and John W. Walker, of Walker, Kaplan & Mays, P.A., for appellant.

      Naif Samuel Khoary, of Sam Sexton, Jr., Law Firm, for appellee.
   George Howard, Jr., Justice.

The sole question to be resolved in this case is whether the trial court’s decree changing custody of the parties’ minor child, Crystal Walker, a female, age four, from the appellant, the mother, to appellee, the father, is based upon the preponderance of the evidence and upon competent and authentic evidence.

THE FACTS

The parties were lawfully married on September 27, 1970, and one child was born to this marriage union. However, on August 2, 1973, an absolute divorce decree was granted to appellee from appellant in an uncontested action and custody of the parties’ minor child, then two years old, was awarded to appellant, obviously by mutual agreement of the parties since the appellant waived service of summons and entry of appearance and further agreed that the divorce might be granted without further notice to her. The trial court, however, retained jurisdiction of the case “for any further orders.”

On May 18, 1976, appellee filed his petition for change of custody alleging, inter alia, the following:

“2) That since the date of the final decree of divorce, Respondent-defendant-mother has engaged in activities detrimental to the mental, emotional and moral well-being of said minor child, thus rendering Respondent-Defendant-mother unfit to have the fulltime care, custody and control of said minor child.
“3) That, in the best interests of the child, the above-mentioned decree should be modified to vest the fulltime care, custody and control of the child in the Petitioner-Plaintiff. ”

On May 24, 1976, appellant filed her response asserting that “the defendant denies engaging in activities detrimental to the well-being of Crystal Walker and denies that it would be in the best interests of the child to change custody.”

On May 25, 1976, appellee filed his petition for temporary custody alleging essentially:

“3. That the Defendant-Respondent-mother has stated to Plaintiff-Petitioner-father, and his wife, that she will secret the child of marriage from the father, and flee the jurisdiction of this Court before the hearing date hereinabove set forth. ”

On May 25, 1976, the trial court entered the following order:

“. . . custody of the minor child, Crystal, pending a final hearing on this matter, be temporarily vested in the Petitioner-Plaintiff-father, Ronnie Walker, subject to reasonable visitation by the defendant Gloria Walker and this case is continued for hearing on June 2nd, 1976 at 10:00 A.M.”

On June 2, 1976, after conducting a hearing on appellee’s petition for temporary custody, the trial court ordered appellant to deposit a $500.00 cash bond in the registry of the court to insure the presence of Crystal in the jurisdiction of the court, vested temporary custody of Crystal in appellee with visitation rights afforded appellant in the home of appellant’s mother “and only in that residence.”

On September 1, 1976, after conducting a full scale hearing on petition for change of custody, the trial court entered its final decree awarding permanent custody of Crystal to appellee and affording appellant the following visitation privileges:

“. . . on the first and third weekends of each and every month from 6:00 P.M. on Friday to 6:00 P.M. on Sunday, visitation from 4:00 P.M. on Christmas Day to 6:00 P.M. on the first day of January of each year, visitation on Thanksgiving, Easter and the birthday of the child from 4:00 P.M. on each day to 4:00 P.M. the following day. The mother shall have custody during the month of July of each year and the mother shall also have reasonable visitation at times convenient to the mother and father, but only upon adequate notice being given to the father of such requested visitation.”

APPELLANT’S CONTENTIONS FOR REVERSAL

Appellant urges persistently the following points for reversal of the trial court’s decree:

1. The court below erred in holding that a mother who cohabits with an unmarried black man is an unfit mother for purposes of child custody.

2. The chancellor erred in admitting into evidence a “special report” containing multiple hearsay, which error was prejudicial to the appellant.

3. The court below erred in admitting prejudicial inadmissible evidence and in considering evidence outside the record in reaching its decision.

THE DECISION

In appellant’s first point relied upon for reversal, she alleges that the trial court erred in holding that “a mother who cohabits with an unmarried black man is an unfit mother for purposes of child custody.” However, appellant argues in her brief that “In arriving at its decision to change custody to the father, the court below failed to articulate the specific reasons for its decision . . . the absence of any articulated reasons, strongly suggests that both the litigation and its outcome were racially motivated.” It appears here that appellant’s reasoning has the appearance of a paradox or, indeed, a clear example of an antinomy.

However, prior, to rendering its ruling in this case, the trial court made the following observation:

“I would like to first make this statement. That the court is not in any way influenced or prejudiced due to the racial issue in question, that has been injected in this case, for I have grown up with and I have enjoyed the company of and had and have many friends of the negro race.
“I have considered this case as 1 have considered every custody case that has come before this court and the court is going to award the permanent custody of the minor child, custody to the father. That 1 feel is to the best welfare and interest of this minor child ...”

It is well recognized that the review of a chancery court proceeding by this Court is tried de novo. Consequently, only competent and authentic evidence is considered by this Court in making the review. In applying this rule, appellee’s exhibit 2, a “Special Report” compiled by private investigator Bob Bailey regarding the alleged morals of appellant is disregarded in its entirety.

Appellant made a timely objection to the admissibility of the special report on the grounds that the report was hearsay and in some particulars, hearsay within hearsay. Appellee sought to justify the admissibility of the document as an exception to the hearsay rule because the document may be characterized as recorded recollection or work product of investigator Bailey. This position is without merit for Rule 803(5) of the Uniform Rules of Evidence dealing with recorded recollection provides:

“A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in his memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party” (Emphasis Added)

The document is not, nor any part thereof, admissible under Rule 803(6) of the Uniform Rules of Evidence as a record maintained in the course of a regularly conducted business activity inasmuch as appellee failed to lay a proper foundation to invoke the benefit of this rule.

Appellant also claims prejudicial error was committed by the trial court in reviewing a report prepared by the Department of Social Services in connection with an ex parte investigation made of appellee’s home and standing in the community, but no one objected to the trial court reviewing the report and, moreover, no one requested that the report be made a part of the record. Consequently, we do not have the benefit of the content of this report. We conclude, therefore, that appellant has not demonstrated any prejudicial error on the part of the trial court in considering the report of the Department of Social Services.

In Miller v. Miller, 208 Ark. 1058, 189 S.W. 2d 371 (1945), this Court emphasized:

“It is the well-settled doctrine in this state that the chancellor, in awarding the custody of an infant child or in modifying such award thereafter, must keep in view primarily the welfare of the child, and should confide its custody to the parent most suitable therefor, the right of each parent to its custody being of equal dignity.”

In Phelps v. Phelps, 209 Ark. 44, 189 S.W. 2d 617, we said, among other things:

“. . . If the welfare of the child so requires, the decree may be modified without a change of circumstances, on the presentation of facts which although existing at the time of the original decree were not then presented or considered. The welfare of the child is the controlling consideration, and whenever it is shown that it is best for the welfare of the child that it be transferred from the custody to which it was awarded, the court will in its discretion modify the decree; otherwise modification is properly denied. The decree should not be modified merely to conform to the wishes of a parent, nor should it be modified for the reward or punishment of a parent, but the rights and wishes of the parents should, if possible, be considered. The court will take a child of tender years away from the mother to whom it was awarded only for the most cogent reasons.”

In Daily v. Daily, 175 Ark. 161, 298 S.W. 1012, we said:

“. . . whatever the result of the agreement between husband and wife with respect to the custody and support of their minor child, such agreement does not affect the right of a court of equity to award the custody of the child to either parent and to make reasonable provision for its support and education. The reason is that the public has an interest in the matter, and that the interest of the child is the paramount consideration of the court. ” (Emphasis Added)

Other cases that have set forth rules of law as enumerated in the above cited cases are: Weatherton v. Taylor, 124 Ark. 579, 187 S.W. 450; Massey v. Flinn, 198 Ark. 279, 128 S.W. 2d 1008; Haller v. Haller, 234 Ark. 984, 356 S.W. 2d 9. In Haller, we said: “Zi is a well-established rule that the welfare of the child is the polestar.” (Emphasis Added)

After careful consideration and evaluation of the competent and authentic evidence, we are persuaded that the preponderance of the evidence shows that the father’s circumstances enable him to provide a better home and a more wholesome environment for little Crystal and that it is to the best interest of Crystal that custody be changed to the father.

Briefly, the evidence reflects that appellee has remarried and his wife has quit her job in order to look after and be at home with Crystal; appellee owns his own home, he is self employed and has a rather prosperous business, appellee and his wife have joined church and consequently, are in a position to make provisions for religious education for the child.

On the other hand, appellant admitted that she lived unmarried with a man in the presence of her daughter, that she has two jobs and works a total of 16 hours each day and if granted custody of Crystal, appellant would live for an indefinite period of time with appellant’s mother who testified essentially that she saw nothing wrong with appellant living with a man unmarried. Appellant’s expert witness, Dr. Steve Coleman, a psychologist, admitted on cross-examination that “Crystal is increasingly becoming of age where she will notice that the man who lives with her mother is not married to her. She will understand the significance of that.”

Appellant seeks to minimize the apparent detrimental consequences of the illicit relationship with the unmarried man in the presence of Crystal by asserting the fact that she and appellee lived together in the presence of Crystal after appellee’s divorce became final. While this Court does not condone any illicit relationship, the two incidents are not comparable. Although living together unmarried in the presence of Crystal, appellee and appellant are the natural parents of Crystal and, moreover, any time during this relationship, if the parties had decided to resume their legal marital relationship, it would have been readily a simple matter of having the divorce decree vacated and set aside and their prior legal relationship restored without the necessity of remarriage.

Further, this record reflects that appellant has no permanent residence and since the entry of the divorce decree acquired by appellee, appellant has had at least five different residences. This record also reflects that while Crystal was confined to a hospital, by her father and his present wife, for treatment of scarlatina, appellant removed the child from the hospital’s care without authorization from the attending physician simply because the physician had refused to inform appellant of the nature of the ailment or the treatment that he was administering to the child.

We conclude, therefore, that appellant has failed to establish that the decree of the Chancellor is not supported by a preponderance of the evidence, accordingly, the decree is affirmed.

Affirmed.

We agree: Harris, C.J., and George Rose Smith and Fogleman, JJ.

       The record consists of 454 pages and contains numerous exhibits.

       Although appellant had ample opportunity to request the trial court to make specific findings, the record is void of any such action.


author: George Rose Smith, Justice.

text:
    Ernest WARREN and wife v. Bruce I. COLLIER and wife
    77-131
    559 S.W. 2d 927
    Opinion delivered January 16, 1978
    (Division I)

      James K. Young, by: Luther B. Hardin, for appellants.

      J. Marvin Holman, for appellees.
   George Rose Smith, Justice.

In this boundary line case there is no contention by the plaintiffs Collier that they acquired title to the wooded strip in issue, totaling about an acre, either by adverse possession or by a boundary line agreement. The chancellor’s decision in favor of the Colliers was based upon his finding that a fence line had been acquiesced in for many years as the boundary. Whether that finding is contrary to the clear weight of the proof is the only question.

The mere existence of a fence between adjoining landowners is not in itself sufficient to establish a boundary by acquiescence; there must be a mutual recognition of the fence as the dividing line. Carney v. Barnes, 235 Ark. 887, 363 S.W. 2d 417 (1962). A boundary by acquiescence has usually been inferred from the landowners ’ conduct over so many years as to imply the existence of an agreement about the line. Barnes v. Young, 238 Ark. 484, 382 S.W. 2d 580 (1964); Stewart v. Bittle, 236 Ark. 716, 370 S.W. 2d 132 (1963); Gregory v. Jones, 212 Ark. 443, 206 S.W. 2d 18 (1947); Harris v. E. B. Mooney, Inc., 211 Ark. 61, 199 S.W. 2d 319 (1947).

Here the Colliers, as plaintiffs, failed to prove acquiescence on either side of the fence. The Warrens have owned the land east of the fence since about 1946 and, according to both of them, have known all during their ownership that the fence was erected to keep cattle out and was not intended as a boundary line. Both testified that the adjoining owner until 1952 was Mr. Standridge, Mrs. Warren’s father, who discussed with them the fact that the fence was not on the line.

In 1952 what is now the Colliers’ property was sold by Standridge to Mr. and Mrs. Bayles, who owned it until 1971. What proof there is indicates that the Bayleses knew that the fence was not on the litie and in fact were aware of just about where the true boundary was. A letter that Mrs. Bayles wrote to the Warrens confirms Mrs. Warren’s testimony on this point. The Bayleses’ grantee testified favorably to the Warrens, but upon the proof as a whole no implication of an agreement arises from the parties’ conduct between the Bayleses’ sale of the property in 1971 and the filing of this suit in 1976.

Hence the chancellor’s finding of acquiescence rests essentially upon the mere existence of the fence, which was not completed until 1946 or 1947, and upon proof that the adjoining landowners both allowed their cattle to graze on opposite sides of the fence, in a wooded area. We must conclude that the clear preponderance of the evidence is contrary to the view that the fence was established by acquiescence for so many years as to imply the existence of an agreement that it was the boundary.

The decree is reversed and the cause remanded for the entry of a decree in favor of the appellants (except with respect to that area near the Colliers’ driveway to which the Colliers concededly have title by adverse possession).

We agree. Harris, C.J., and Fogleman and Holt, JJ.


text:
    Hilario Maxcil RODRIQUEZ v. STATE of Arkansas
    CR 77-50
    559 S.W. 2d 925
    Opinion delivered January 16, 1978
    (In Banc)

      Canales & Barrera, Alice, Texas, for appellant.

      Bill Clinton, Atty. Gen., by: Jackson Jones, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

The appellant was charged with possession of marihuana for the purpose of delivery. The State’s proof showed he was arrested while driving through Arkansas with a U-Haul trailer containing a large quantity of marihuana. The jury returned a verdict of guilty, fixing the sentence at ten years. For reversal the appellant argues that his motion to suppress the evidence found in the trailer should have been granted and that the trial court erred in finding that appellant consented to a search of the trailer.

The arrest occurred in Clark county. On May 14, 1975, the Arkadelphia police received a computer printout from State Police Headquarters in Little Rock. The message stated that, according to information from “the border patrol,” a convoy of three vehicles occupied by Mexican-Americans was traveling from Mexico across Arkansas. The first vehicle was said to be a decoy, the second to contain a large amount of marihuana, and the third to be an armed guard vehicle. The only available description was that the third vehicle had a four-wheel drive.

At 7:00 o’clock the next morning the police at Prescott and Arkadelphia received an oral radio message from the State Police at Hope. That message said that a convoy corresponding to the one described by the border patrol had passed Hope on Interstate 30. One of the vehicles had crossed the scales at the weigh station there, while the other two slowed down and waited for it. The message described the first vehicle as a two-ton silver truck pulling a U-Haul trailer, the second as a brown vehicle pulling a U-Haul trailer, and the third as a green two-ton truck with a canvas tarp over it.

Various police units converged upon three vehicles traveling on Interstate 30 near Arkadelphia. The first, a van pulling a U-Haul trailer, was about a mile ahead of the other two and, as it now appears, was not actually part of the con-; voy. The second was a brown car, pulling a U-Haul trailer and being driven by the appellant, who appeared to be a Mexican. The third, containing what appeared to be Mexicans, was a green two-ton truck with a canvas cover over it. None of the vehicles had a four-wheel drive or contained arms.

The officer who stopped the appellant, Rodriquez, patted him down for weapons, examined his Texas driver’s license, and eventually opened the trunk of the car with a key provided by Rodriquez. Upon discovering in the trunk what appeared to be a large amount of marihuana the officer placed Rodriquez under arrest.

The officer testified that after telling Rodriquez the officers were looking for marihuana, he asked Rodriquez if he might search the vehicle. According to the officer, Rodriquez voluntarily produced the key. That testimony was disputed by Rodriquez, who denied having consented to the search. According to Rodriquez, he asked whether the officer had a search warrant. The officer patted his gun and said that was all the search warrant he needed.

Under our holding in White v. State, 261 Ark. 23, 545 S.W. 2d 641 (1977), we cannot sustain the trial court’s finding that Rodriquez voluntarily consented to the search. At the time he was apparently surrounded by armed police officers. We pointed out in White that the State has the burden of proving that consent was freely and voluntarily given. “This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority.” We went on to say that consent must be proved by clear and positive testimony. It must also be shown there was no duress or coercion, actual or implied. Here the proof of consent cannot be said to be clear and positive, nor can it fairly be said that there was no implied coercion.

Upon the principal point in the case the appellant argues that no probable cause for his arrest was shown, because the State did not call a member of the border patrol as a witness to prove that its information was reliable. The State replies that, on the basis of the messages that had been received, the police officers had probable cause to stop Rodriquez on the highway and to search the car.

We readily agree that officers in one locality are justified in acting upon messages received from officers in another locality. Upon a related point it was said in Whiteley v. Warden, 401 U.S. 560 (1971):

We do not, of course, question that the Laramie police were entitled to act on the strength of the radio bulletin. Certainly police officers called upon to aid other officers in executing arrest warrants are entitled to assume that the officers requesting aid offered the magistrate the information requisite to support an independent judicial assessment of probable cause. Where, however, the contrary turns out to be true, an otherwise illegal arrest cannot be insulated from challenge by the decision of the instigating officer to rely on fellow officers to make the arrest.

See also Klingler v. United States, 409 F. 2d 299 (8th Cir. 1969).

In the case at bar, however, the question is not whether the officers had probable cause to stop Rodriquez. Rather, the question is whether the State can rely solely upon the hearsay contained in the police messages as a complete answer to the defendant’s motion to suppress evidence found by the officers. Upon that issue we fully agree with the position taken by the New York Court of Appeals in a similar case, People v. Lypka, 36 N.Y. 2d 210, 366 N.Y.S. 2d 622, 326 N.E. 2d 294 (1975):

But where on a motion to suppress, a challenge [to the action of the receiver of the police message] is made, the presumption of probable cause that originally cloaked that action disappears from the case. ... At that point, bare reliance on an unsubstantiated hearsay communication from the instigating officer or department will not suffice for probable cause. . . . Ultimately, to sustain their burden at the suppression hearing . . . the People must demonstrate that the sender or sending agency itself possessed the requisite probable cause to act. . . .
Here, though, at the suppression hearing there was no proof whatsoever that the Pennsylvania authorities possessed the necessary probable cause to support a search for weapons and stolen property. It follows that the resulting search by the New York authorities was not sustained by the proof. [Citations omitted.]

Thus in the case at bar the motion to suppress the evidence should have been sustained. Inasmuch as the State may be in a position to supply the necessary proof upon a new trial, the cause will be remanded.

Reversed and remanded.

Howard, J., not participating.


author: John A. Fogleman, Justice.

text:
    Hollis GREENLEE et al v. Edna MUNN, Clerk et al
    77-279
    559 S.W. 2d 928
    Opinion delivered January 16, 1978
    (In Banc)

      Thurman Ragar, Jr., for appellants.

      Robert Tolson, Jr., Pine Bluff City Atty., for appellees.
   John A. Fogleman, Justice.

Appellants argue that the circuit court erred in denying their petition for a writ of mandamus to require the City Clerk and other officials of the City of Pine Bluff to submit its Ordinance No. 4591 to a referendum. We agree with the trial court and affirm.

The case was submitted upon a stipulation of fact. Ordinance No. 4591 appointing Leroy Boas to the Civil Service Commission of the City of Pine Bluff was passed on April 4, 1977, and passed over the mayor’s veto on April 18, 1977. This appointment was made pursuant to Ordinance No. 2994 of the City of Pine Bluff, which was adopted on August 16, 1949, pursuant to Act 326 of 1949, which authorized the city council of every city of the first class having a civil service system to name commissioners, by ordinance, to serve on a Board of Civil Service Commissioners. On May 18, 1977, petitioner and others submitted petitions for a referendum on the ordinance to the City Clerk of Pine Bluff, which they allege contained a sufficient number of signatures to require the calling of a referendum. The city clerk has failed to take any action on these petitions.

Appellants contend that the ordinance in question is subject to referendum. We do not agree that it is under the test prescribed in our interpretation of Amendment 7 to the Arkansas Constitution in Scroggins v. Kerr, 217 Ark. 137, 228 S.W. 2d 995. There we said that not all ordinances enacted by a city council were subject to the referendum provisions of Amendment 7, which reserved the power of referendum on all municipal legislation of every character to the voters of the municipality. In Scroggins, we pointed out that the separation of powers in city governments is not so complete that all aldermanic activities are legislative in character, because city councils act administratively and judicially, or at least quasi-judicially, as well as legislatively. As between administrative and legislative actions we applied the test stated at 1 McQuillin, Municipal Corporations (2d Ed., rev. 1940) 1000. The crucial test there stated is whether the action is one making a new law or one executing a law already in existence, regardless of the form or name put on the action, fully recognizing that executive powers are often vested in a city council and exercised by motion, resolution or ordinance. Under that test executive action by ordinance is not subject to referendum, which is directed toward “municipal legislation” alone. Mr. Justice Leflar, speaking for the majority, stated the rule thus:

Similarly, if there is a law already enacted which authorizes the very action provided for by a later resolution or ordinance, then there is no right to have a referendum on the new measure. It is not a new law, but only a procedural device for administering an old law. The right of referendum should have been exercised when the original measure, the enactment that put the law on the books, was newly adopted. ***

Ordinance No. 4591 was authorized, not only by Act 326 of 1949, but, more significantly, by Ordinance No. 2994. Under Scroggins, the time for referendum was the time of the enactment of Ordinance No. 2994, the new law, pursuant to which Ordinance No. 4591, the procedural device, was enacted.

Appellants would have us avoid the impact of Scroggins by holding that the rules there stated were by way of dictum and that, in any event, Scroggins was wrongly decided. We can do neither. In order for this court to decide whether the action taken by the Little Rock City Council, called into question in Scroggins, was subject to the referendum provisions of Amendment 7, it was necessary that we construe the amendment and apply an appropriate test. Our adoption of the distinction between administrative action and legislative action and the application of that test were essential to that decision. In that case, as here, the city officials had declined to call a referendum election, contending that Amendment 7 did not apply to the action on which referendum was sought. The mere fact that we found the action there to be legislative did not render the process of rejecting the city’s argument dictum.

We reject the contention that Scroggins was wrongly decided, when we held that only legislative action as distinguished from administrative action, is subject to referendum under Amendment 7. Appellant’s argument is that when the amendment speaks of municipal legislation of every character and defines “measure,” as used in the amendment, as “any bill, law, ordinance, resolution, charter, constitutional amendment or legislative proposal or enactment of any character,” any ordinance is subject to referendum. We do not so read the amendment. Insofar as municipalities are concerned, the referendum powers reserved to the local voters of the municipality were “as to all local, special and municipal legislation of every character.” [Emphasis ours.] Municipalities were authorized to provide for exercise of referendum “as to their local legislation.” [Emphasis ours.] The word “measure” is nowhere mentioned in the reservation of the power or in the authorization to municipalities to provide for its exercise. In any event, we find nothing in the definition of “measure” that indicates that it was the intent of the people that any bill, law, resolution or ordinance be subject to referendum provided for by the amendment, unless it constituted legislation.

We likewise reject appellants’ argument that the ordinance in question is legislation. If the test set out in Scroggins is determinative, it cannot be; and we do not agree that the ordinance is legislative in character because it creates a right, duty or status in the appointee which is not dependent on a previous right, duty or status. The board is vested and has for a long time been vested with the right, duty or status provided for by legislation by the General Assembly and by the enabling ordinance of Pine Bluff. The right, duty or status of the appointee is dependent upon the right, duty and status provided for in that earlier legislation.

Certainly, the people, in adopting Amendment 7 and making it applicable to municipalities did not intend that it be so broad in scope as to frustrate administrative action essential to efficient administration of the city’s affairs, by annulment or delay of executive conduct, even by ordinance — a hazard pointed out in the statement of the test by McQuillen, which was quoted in Scroggins.

The judgment is affirmed.

Harris, C.J., not participating.

Mr. Justice Byrd concurs in the result only.


text:
    Barry PARK, Grandson of Buster GOLDEN, Deceased v. WEYERHAEUSER COMPANY and FIREMEN’S FUND INSURANCE COMPANY
    77-142
    560 S.W. 2d 226
    Opinion delivered January 16, 1978
    (Division II)

      Arnold, Arnold, Lavender & Rochelle, Ltd., by: Charles D. Barnette, for appellant.

      William L. Peek, Jr., of Hubbard, Patton, Peek, Haltom & Roberts, for appellees.
   Conley Byrd, Justice.

Appellant Barry Park is the grandson of Buster Golden, who was killed in the course of his employment with the appellee Weyerhaeuser Company on May 31, 1972. Appellant Barry Park was determined to be totally dependent on Mr. Golden and received his compensation payments pursuant to Ark. Stat. Ann. § 81-1315(d) — as it existed at the time of Mr. Golden’s death — that is through his 18th birthday which occurred on October 14, 1976. He now claims benefits under the amendment to Ark. Stat. Ann. § 81-1315(d) which was signed by the governor on Feb. 13, 1976. That amendment provides:

“Provided such benefits to an otherwise eligible child shall not terminate at the age of eighteen (18) years provided such child is a full-time student who has not attained the age of twenty-five (25) years.”

The Workers’ Compensation Commission refused to retroactively apply the amendment to appellant’s claim and on appeal the circuit court agreed with' the Commission.

Appellant admits here that the sole question is whether the 1976 amendment can be retroactively applied to the benefits awarded to him as a result of Mr. Golden’s death in 1972. We agree with the Commission and the trial court that this statute cannot be so retroactively applied. See Garner v. American Can Company, 246 Ark. 746, 440 S.W. 2d 210 (1969). Our decision is in accord with the general rule that is set forth in 99 C.J.S. Workmen’s Compensation § 21 as follows:

“The general rule is that the law in force at the time of the injury or accident governs the right to, or liability for, compensation, and that compensation acts or amendments thereto are not applicable to injuries sustained before their enactment or effective dates.”

Since the Workers’ Compensation Law requires every employer to secure compensation coverage for his employees and provides that an employer shall be entitled to such insurance pursuant to the provisions of the Act, it would be almost impossible to obtain those ends if all amendments to the Act, involving substantive matters were to be applied retroactively — i.e. there would be no actuarial basis for determining the amount of the insurance premium.

Appellant also contends that to deprive him of the benefit of the 1976 amendment would violate his constitutional right of equal protection. Since the law applies alike to all dependents as it existed at the date of the injury, we find no merit to this contention.

Affirmed.

We agree: Harris, C.J., and Fogleman and Holt, JJ.