author: Ed P. McPaddin, Associate Justice.

text:
    McDonald v. Bryant, Secretary of State.
    5-3435
    381 S. W. 2d 736
    Opinion delivered September 14, 1964.

      Wright, Lindsey, Jennings, Lester & Shults, for Petitioners.

      Bruce Bennett, Attorney General, by Jack L. Lessen-berry, Chief Assistant Atty. Gen. and John P. Gill, Asst. Atty Gen., for appellee.
   Ed P. McPaddin, Associate Justice.

This is an original action by citizens and taxpayers against the Secretary of State, and is an attack on both the popular name and the ballot title of proposed Constitutional Amendment No. 55. Prior to July 10,1964, a petition to initiate proposed Constitutional Amendment No. 55 was filed with the defendant as Secretary of State. The Attorney General — acting under the provisions of Ark. Stat. Ann. § 2-208 (Eepl. 1956) — had approved the popular name and the ballot title. See Washburn v. Hall, 225 Ark. 868, 286 S. W. 2d 494. On July 10, 1964, the Secretary of State advised the sponsors of proposed Amendment No. 55 that the necessary valid signatures were present and that both the popular name and the ballot title were legally sufficient. The proposed amendment is now in process of publication and will be submitted to the voters at the 1964 General Election unless litigation prevents it. On August 13, 1964, the plaintiffs filed this proceeding, and prayed that this Court enjoin the defendant Secretary of State from certifying the proposed Amendment No. 55 to the State Board of Election Commissioners.

It is conceded by all parties that there is no necessity for the appointment of a Master, under Eule 17c of this Court; and we are asked to decide the case on the pleadings and briefs. Plaintiffs preface their argument with the following paragraph, which we approve:

Since the popular name and ballot title of the petition are the only portions of the proposal which appear on the ballot, Westbrook v. McDonald, 184 Ark. 740, 43 S. W. 2d 356 (1931), the proponent owes a duty to the electorate to draft a popular name and ballot title which is nonpartisan, descriptive of the amendment, free from misleading words and phrases, and, generally speaking,, one which is simply a fair representation of his proposal. Johnson v. Hall, 229 Ark. 400, 316 S. W. 2d 194 (1958).”

1. The Popular Name. The popular name of the proposed Amendment No. 55 is: “GARLAND COUNTY LAWFUL WAGERING AMENDMENT.” The petitioners’ attack on this popular name is summarized:

“The popular name of the petition is misleading in that it contains partisan coloring, superfluous words designed to solicit votes, and conveys a false idea as to the meaning and effect of the proposed act.”

We have several cases involving attacks on the popular name of proposed measures. Some of them are: Pafford v. Hall, 217 Ark. 734, 233 S. W. 2d 72; Hope v. Hall, 229 Ark. 407, 316 S. W. 2d 199; Moore v. Hall, 229 Ark. 411, 316 S. W. 2d 207; and Leigh v. Hall, 232 Ark. 558, 339 S. W. 2d 104. In the light of our cases we proceed to examine the popular name of the proposed Amendment No. 55. It is claimed that the word “lawful” is misleading and is a coloring designed to solicit votes for the amendment which proposes to legalize gambling in Garland County. Also, it is claimed that the word “wagering” is a softening of the real word “gambling,” or a “sugar-coating of the pill.” We find no substantial merit in the plaintiffs’ attack against the popular name here involvéd. The amendment proposes to legalize gambling in Garland County. The words, “wagering,” “betting,” and “gambling,” are practically synonymous, and the terms are so- used in common parlance, in dictionary and legal definitions, and in statutory and constitutional enactments.

Webster’s New Third International Dictionary says of wagering: “Relating to the act of one who wagers: betting . . .”; and of betting the same authority says: “To stake (money) on the outcome of an issue or the performance of a contest (betting $2 on the race); (betting $100 on the election)”; and of gambling the same authority says: ‘ ‘ The act or practice of betting: the act of playing a game and consciously risking something on an uncertain event: wagering.” Thus it will be observed that wagering and betting are snyonymous terms with gambling.

Black’s Law Dictionary has these definitions:

“WAGER: A contract by which two or more parties agree that a certain sum of money or other thing shall be paid or delivered to one of them or that they shall gain or lose on the happening of an uncertain event or upon the ascertainment of a fact in dispute, where the parties have no interest in the event except that arising from the possibility of such gain or loss.”
“BET. An agreement between two or more persons ■that a sum of money or other valuable thing, to which all jointly contribute, shall become the sole property of one or some of them on the happening in the future of an event at present uncertain, or according as a question disputed between them is settled in one way or the other. ’ ’
“GAMBLE. To play, or game, for money or other stake; hence to stake money or other thing of value on an uncertain event. ’ ’

The United States Government by U.S.C.A. Title 26 § 3285 (Internal Revenue Code of 1939) has a federal statute which levies a ‘ ‘ tax on wagers, ’ ’ that is a tax on betting; so wagering and betting are synonymous terms in the federal statute. ' Likewise, Arkansas Constitutional Amendment No. 46 provides: “Horse racing and pari mutuel wagering thereon shall be .lawful in Hot Springs, Garland County, and shall be regulated by the General Assembly.” (Italics supplied.) The word “wagering” means “betting” in the Arkansas Constitutional Amendment.

So when the word “wagering” was used as a popular name for the proposed Amendment No. 55, the framers of the popular name were using a word that was definitely defined in the dictionary, definitely determined in the cases, and previously used with a definite meaning in both State and Federal enactments. There are scores of cases which hold that “betting” and “wagering” are all forms of gambling. Some of them are: Lucas v. Harper, 24 Ohio State 328; Somers v. State, 37 Tenn. 438; Thornhill v. O’Bear (Ala.), 19 So. 382; Carpenter v. Beal-McDonnell & Co., 222 F. 453; 5-Spot Short Range v. Rinehart (Ohio), 10 N. E. 2d 450; U. S. v. Nadler, 105 F. Supp. 918; Rahke v. U. S., 180 F. Supp. 576.

We have found no case, and learned counsel for petitioners have cited us to none, that makes any sound distinction between wagering and betting as forms of gambling. We hold against the petitioners in their attack on the popular name of Amendment No. 55.

II. Ballot Title. The ballot title of the proposed Amendment No. 55 is as follows:

“AN AMENDMENT MAKING GAMES OF CHANCE AND WAGERING THEREON LAWFUL IN ESTABLISHMENTS IN' GARLAND COUNTY, ARKANSAS, LICENSED PURSUANT TO THIS AMENDMENT IF APPROVED BY A MAJORITY OF THE LEGAL VOTERS OF GARLAND COUNTY, ARKANSAS, VOTING ON THE QUESTION BY VOTE ON THIS AMENDMENT OR AT A SPECIAL LOCAL OPTION ELECTION; CREATING THE ARKANSAS GAMING CONTROL BOARD TO ADMINISTER AND ENFORCE THE PROVISIONS OF THIS AMENDMENT AND TO REGULATE WAGERING ACTIVITIES PERMITTED HEREUNDER, SAID BOARD TO CONSIST OF 5 MEMBERS APPOINTED BY THE GOVERNOR, AND PRESCRIBING THE TERMS, QUALIFICATIONS, POWERS, DUTIES, FUNCTIONS AND AUTHORITY OF THE BOARD; APPOINTING THE ATTORNEY GENERAL OF THE STATE AS THE ATTORNEY FOR THE BOARD; AUTHORIZING THE APPROPRIATION OF FUNDS FOR EXPENSES AND■OPERATION OF THE BOARD; PROVIDING FOR HEARINGS BY THE BOARD AND APPEALS THEREFROM; PROVIDING FOR THE LICENSING OF WAGERING ESTABLISHMENTS AND FIXING THE MAXIMUM PERMITTED NUMBER; PROVIDING FOR THE ELIGIBILITY AND QUALIFICATIONS OF LICENSEES; RESTRICTING THE LOCATION OF LICENSED ESTABLISHMENTS AND PROVIDING FOR CHANGE OF LOCATION IN CERTAIN CASES; FIXING THE DURATION OF LICENSES AND PROVIDING FOR AUTOMATIC RENEWALS WITH CERTAIN EXCEPTIONS; PROHIBITING TRANSFERS OF LICENSES OR INTERESTS THEREIN WITH CERTAIN EXCEPTIONS; LEVYING A STATE TAX OF NOT LESS THAN 4% NOR MORE THAN 5%% OF THE QUARTERLY GROSS PROFIT FROM WAGERING OF EACH LICENSEE; PROVIDING FOR THE COLLECTION OF SAID TAXES; PROVIDING FOR STATE LICENSE FEES AND FIXING THE AMOUNT THEREOF; AUTHORIZING THE CITY OF HOT SPRINGS AND THE COUNTY OF GARLAND TO LICENSE AND TAX LICENSEES AND PROVIDING FOR LIMITS ON SUCH LICENSE FEES AND TAXES; PROHIBITING PERSONS UNDER 21 FROM PLAYING OR LOITERING ABOUT OR BEING PERMITTED TO PLAY OR LOITER ABOUT LICENSED GAMES OF CHANCE; MAKING CERTAIN LAWS RELATING TO GAMBLING INAPPLICABLE TO ACTS PERMITTED BY THIS AMENDMENT; PROVIDING THAT SAID AMENDMENT SHALL BE- SELF-EXECUTING.”

Plaintiffs summarize their attack on this ballot title:

“The ballot title of the petition is defective and insufficient in that it does not convey a complete and intelligible idea of the scope and import of the proposed act, is misleading in that it conveys a false idea as to .the meaning and effect of the proposed act, contains partisan coloring, and is designed to solicit votes.”

The proposed Constitutional Amendment has seventeen sections and contains more than 3400 words. The ballot title has approximately 300 words. We have carefully compared the ballot title against the text of the amendment; and we cannot agree with the petitioners in their attack on the ballot title. We have a number of cases involving the ballot title of initiated measures, some of which are: Westbrook v. McDonald, 184 Ark. 740, 43 S. W. 2d 356, 44 S. W. 2d 331; Shepard v. McDonald, 189 Ark. 29, 70 S. W. 2d 566; Walton v. McDonald, 192 Ark. 1155, 97 S. W. 2d 81; Newton v. Hall, 196 Ark. 929, 120 S. W. 2d 364; Hogan v. Hall, 198 Ark. 681, 130 S. W. 2d 716; Sturdy v. Hall, 204 Ark. 785, 164 S. W. 2d 884; and Bradley v. Hall, 220 Ark. 925, 251 S. W. 2d 470.

In Bradley v. Hall, 220 Ark. 925, 251 S. W. 2d 470, we said:

“Our decisions upon the sufficiency of ballot titles have been so numerous that the governing principles are precisely familiar. On the other hand, it is not required that the ballot title contain a synopsis of the amendment or statute. Sturdy v. Hall, 204 Ark. 785, 164 S. W. 2d 884. It is sufficient for the title to be complete enough to convey an intelligible idea of the scope and import of the proposed law. Westbrook v. McDonald, 184 Ark. 740, 43 S. W. 2d 356, 44 S. W. 2d 332. We have recognized the impossibility of preparing a ballot title that would suit everyone. Hogan v. Hall, 198 Ark. 681, 130 S. W. 2d 716. Yet, on the other hand, the ballot title must be free from ‘ any misleading tendency, whether of amplification, of omission, or of fallacy,’ and it must not be tinged with'partisan coloring. Walton v. McDonald, 192 Ark. 1155, 97 S. W. 2d 81.”

In Leigh v. Hall, 232 Ark. 558, 339 S. W. 2d 104, Mr. Justice J. Seaborn Holt, after quoting from Bradley v. Hall, supra, used this language:

“. . . a ballot title must be (1) intelligible, (2) honest, and (3) impartial. ... In the case of Coleman v. Sherrill, 189 Ark. 843, 75 S. W. 2d 248, we said: ‘. . . The real objection urged to the title of the act ... is the fact that it is not sufficiently elaborate. Any other ballot title would be susceptible of the same criticism unless it were in itself a complete abstract of the act which would be impracticable under ordinary conditions.’ And further, ‘... it has never been understood that the title of a statute should disclose the details embodied in the act. It is intended simply to indicate the subject to which the statute relates. . . . When the general subject is indicated, no detail matters need be mentioned in tbe title.’ (emphasis supplied) The title of a measure does not have to constitute a synopsis of the measure, Bradley v. Hall, supra.”

It would unduly prolong this opinion to list and dis-' cuss the several specific attacks made on the ballot title of proposed Amendment No. 55. It is not a question of how we individually feel about the merits of the meas-ure: we are concerned only with the legal requirements to allow the measure to be submitted to the voters. It is sufficient to say that Ave have carefully studied all the arguments advanced by the plaintiffs and conclude that the ballot title of proposed Amendment No. 55 is good against all such attacks.

The petition for injunction is denied.

Johnson, J., disqualified.

       Section 16 of Constitutional Amendment No. 7 says in part: “The sufficiency of all state-wide petitions shall be decided in the first instance by the Secretary of State, subject to review by the Supreme Court of the State, which shall have original and exclusive jurisdiction over all such causes.”. Section 17 of the Amendment No. 7 says in part: “If the sufficiency of any petition is challenged such cause shall be a preference cause and shall be tried at once ...”

       Ark. Stat. Ann. § 2-208 (Repl. 1956) provides for a popular name. See Pafford v. Hall, 217 Ark. 734, 233 S. W. 2d 72.

       The Attorney General submitted the following tabulation in support of his position that the ballot title fully, fairly, and impartially conveyed an intelligible idea of the scope and import of the proposed amendment:

        Reference to Section WORDING OF BALLOT TITLE of Proposed Amendment
      AN AMENDMENT making games of chance “Section 1 and wagering thereon lawful in establishments in Garland County, Arkansas licensed pursuant to this Amendment if approved by a majority of "the legal voters of Garland County, Arkansas, voting on the question by vote on this Amendment or at a special local option election;
      “creating the Arkansas Gaming Control Board “Section 2 to administer and enforce the provisions of this Amendment and to l'egulate wagering activities permitted hereunder, said board to consist of 5 members appointed by the governor, and prescribing the terms, qualifications, powers, duties, functions and authority of the board appointing the attorney general . of the state as the attorney for the board; authorizing the appropriation of funds for expenses and operation of the board; providing for hearings by the board and appeals therefrom;
      “providing for the licensing of wagering estab- “Section 3 lishments;
      “and fixing the maximum permitted number; “Section 4
      “providing for the eligibility'and qualifications of licensees; “Sections 5, 6 & 7
      “restricting the location of licensed establishments and providing for change of location in certain cases; “Seetion-8
      “fixing the duration of licenses and providing for automatic renewals with certain exceptions; “Section 9
      “prohibiting transfers of licenses or interests therein with certain exceptions; “Section 10
      “levying a state tax of not less than 4% nor “Sections 11 & 13 more than 5 % % of the quarterly gross profit from wagering of each licensee; providing for the collection of said taxes;
      “providing for state license fees and fixing the “Section 12 amount thereof;
      “authorizing the city of Hot Springs and the “Section 14 county of Garland to license and tax licensees and providing for limits on such license fees and taxes;
      “prohibiting persons under 21 from playing or “Section 15 loitering about or being permitted to play or loiter about licensed games of chance;
      “making certain laws relating to gambling in- “Section 16 applicable to acts permitted by this amendment;
      “providing that said amendment shall be self- “Section 17 executing.”


source: Caselaw Access Project

author: George Bose Smith, J.

license: Public Domain

text:
    Nunez v. O. K. Processors.
    5-3328
    381 S. W. 2d 754
    Opinion delivered September 14, 1964.

      A. A. McCormick, for appellant.

      Bethel S Pearce by Donald P. Galloway, for appellee.
   George Bose Smith, J.

The Uniform Enforcement of Foreign Judgments Act, adopted in Arkansas in 1949, created a simplified method of enforcing foreign judgments. Ark. Stat. Ann., Title 28, Ch. 8 (Bepl. 1962). In the case at bar these appellants filed a petition in the circuit court of Sebastian county, seeking to enforce a Nevada judgment against the appellee in the sum of $415.85. This is an appeal from an order sustaining a demurrer to the appellants’ petition.

Counsel for the appellee open their printed brief by stating that they feel it to be their duty to call attention to a jurisdictional defect in the record: the want of a final appealable order. Despite this suggested defect counsel proceed to argue the case upon its merits. In the reply brief the attorney for the appellants insists that the order is in fact an appealable one.

The order in question recites that the demurrer is sustained, that the petition is quashed, and that the petitioners are allowed ten days in which to file a proper petition. Within the ten days the appellants filed a notice of appeal in which they stated that they- elected to stand upon their pleadings.

The order in itself was not final, for it did not dismiss the parties from the court nor conclude their rights in the subject-matter of the controversy. Piercy v. Baldwin, 205 Ark. 413, 168 S. W. 2d 1110. To the contrary, the order recognized the continued pendency of the case by allowing the petitioners ten days in which to amend their pleadings.

It is argued by the appellants that the element of finality was supplied by the declaration in the notice of appeal that they elected to stand upon their pleadings. Substantially this same contention was made in Fairview Coal Co. v. Central Ry., 153 Ark. 295, 239 S. W. 1058. In rejecting this argument we said: “It was clearly an interlocutory order, unless the use of the language to the effect that appellant refused to plead further amounted to a final disposition of the case. We think this language a mere recital of the attitude of appellant, and in no sense an act or order of the court.”

In the past, in the situation now confronting us, it has been our practice to dismiss the appeal “for want of jurisdiction.” Green v. Thomas, 8 Ark. 56. In some instances we took that action with obvious reluctance, realizing that it entailed serious inconvenience and added expense to both litigants. In the case at bar, for example, we have before us a record that is almost complete and printed briefs- in which counsel have argued the issues upon their merits. If we summarily dismiss this appeal the parties may conceivably be compelled to duplicate their record and briefs, after having first obtained a final order that in all likelihood will be entered without objection.

We think it our duty to alleviate this hardship upon our own motion, as far as we can. Even though we cannot brush aside jurisdictional defects in the record, we certainly can afford the parties an opportunity to supply what is lacking. All that is really needed in this case is a final judgment dismissing the appellants’ petition and a notice of appeal from that judgment. If the parties will, within fifteen days, take the necessary action to supplement the record in those respects and, further, will file a stipulation that the appeal may be heard upon the briefs already on file, we shall decide the case upon its merits. Otherwise the appeal will be dismissed without prejudice. Needless to say, this opinion is intended to provide a precedent under which lawyers may supply similar deficiencies in future cases without the court’s intervention.


text:
    Cockrell v. Dobbs, Judge.
    5-3418
    381 S. W. 2d 756
    Opinion delivered September 14, 1964.

      Jack Holt, Sr., for appellant.

      Davicl Whittington, Prosecuting Attorney, for appellee.
   George Bose Smith, J.

This is a petition by Bruce Cockrell for a writ of mandamus to compel the respondent, as the presiding judge of the Garland circuit court, to grant a hearing upon Cockrell’s motion for a change of venue. The petitioner, charged with murder, asked for a change of venue, asserting that he could not obtain a fair trial in Garland county. In refusing to conduct a hearing upon the motion Judge Dobbs explained that he had concluded that he could not grant any relief even if the motion had merit.

This was Judge Dobbs’s reasoning: The Bill of Bights provides that the venue may be changed to another county within the same judicial district. Ark. .Const., Art. 2, § 10. This provision has been construed to prohibit a change of venue to a county in a different judicial district. State v. Flynn, 31 Ark. 35. Act 49 of 1963, by transferring Montgomery county to another judicial district, left Garland county as the only county in the Eighteenth'Judicial District. Hence Judge Dobbs concluded that he was powerless to grant a change of venue, for there is now no other county within the district to which the case might be removed.

In seeking a writ of mandamus the petitioner contends that the Bill of Bights by implication prohibits the legislature from reducing any judicial district to a single county, so that Act 49 is unconstitutional. During our summer recess four members of the court' heard the petition and unanimously granted the writ. This opinion for the full court explains why the writ was issued.

We are unwilling to say that Act 49 is invalid. The constitution (Art. 7, § 13, and Art. 18) empowers the General Assembly to change the judicial districts from time to time. There is no express requirement that a district contain more than one county. Shifts in population might readily qualify a single county to become a complete judicial district. There is no sound basis for.reading into the constitution the implied limitation upon the legislative power now urged by the petitioner — a restriction that in practice might prove to be demonstrably unwise. We uphold Act 49.

We are nevertheless of the opinion that the court below construed the Bill of Bights much too narrowly, permitting its strict letter to defeat its manifest purpose. Changes of venue were recognized at common' law. Without a doubt Section 10 of Article 2, authorizing a transfer to another county within the district, was meant to preserve the accused’s right to a change of venue, not to deny that right. The important declaration in this section of the constitution is its guaranty of a trial by an impartial jury. A change of venue is a means to that end. The subordinate directive that it be to another county in • the district is also for the protection of the accused, for it prevents the trial from taking place at an unreasonable distance from the county where the offense was committed.

The Bill of Bights must be read in context. When the constitution was written Article 18 enumerated the original judicial districts, ¿11 containing four or more counties. In that setting the provision for. a transfer to another county within the district was of benefit to the accused. But when a county becomes a district in itself it would defeat the plain purpose of Section 10 to hold that the circuit court is powerless to grant a change of venue, even though it is shown that the defendant cannot hope to obtain a fair trial .in the county. The heart of Section 10 is its guaranty of an impartial jury. Any interpretation that destroys that guaranty is wrong. For these reasons we directed, during the summer recess, that the respondent conduct a hearing upon the petitioner’s motion, to the end that the case might, if necessary, be transferred to an adjoining county. This is the view that has been taken elsewhere when the identical question has arisen. Turner v. State, 87 Fla. 155, 99 So. 334; State v. Harvey, 128 S. C. 494, 122 S. E. 860.

Holt, J., not participating.


author: Paul Ward, Associate Justice.

text:
    Hayden v. Gardner.
    5-3291
    381 S. W. 2d 752
    Opinion delivered September 14, 1964.

      Terrall, Rawlings $ Mattheivs, for appellant.
    No brief filed for appellee.
   Paul Ward, Associate Justice.

The question for decision on this appeal relates to the garnishment of a joint bank account. The pertinent facts, undisputed, are summarized below.

Facts. Appellant, Dallas W. Hayden, recovered a judgment in the amount of $327.14 against appellee, John A. Gardner. After the time for appeal expired Hayden caused to be issued a Writ of Garnishment against the Bank of Crossett in which Mr. and Mrs. Gardner had a joint savings account in the amount of $1,455.81 (subject to a pledge to pay a note to said bank in the amount of $463.50). In addition to the admitted facts above set out the vice-president of the bank testified that he was familiar with the account of Mr. and Mrs. John A. Gardner, that both had the right of withdrawal and that he did not know who made the deposits. (A ledger sheet introduced in evidence showed numerous deposits and withdrawals dating back to 1957.)

Findings and Order of the. Trial Court. Based on the factual situation above set out, the trial court-held:

“Where there is a joint account and such fact is shown, the Court must assume that the funds belong equally to each of the depositors until the contrary appears. No proof appearing to the contrary, the Court must indidge that assumption here.
“The Court finds that from .the proof before this Court, the funds garnished were from a joint bank account owned equally by the defendant and his wife; that his wife’s property is not subject to garnishment for payment of a judgment against the husband in tort.
• “IT IS THEREFORE CONSIDERED AND ORDERED, the Motion of the defendant is sustained, the garnishment quashed, garnishee discharged and the Clerk ordered to pay the funds held in the registry of the Court to the defendant and his wife jointly, and costs are adjudged against plaintiff. ’ ’

From the above action of the trial court appellant now prosecutes this appeal, seeking a reversal.

After careful consideration we have concluded that, for the reasons hereafter set forth, the order of the trial court must be reversed and the cause remanded for further action.

General Statement. Even a casual research of the authorities reveals that the law relative to the garnishment of joint bank accounts is far from settled or uniform. We know of no better way to emphasize this fact than to refer to an article published in 26 U. Chi. L. Rev., Spring of 1959, pp. 376-404, and particularly to the caption given the article as carried in C.C.H. 1959-60 Legal Periodical Digest paragraph 1029. The caption is: “Five More Years of the Joint Bank Account Muddle”. Equally revealing is a case note, Garnishment, Yol. 71 Harvard Law Review 557 (1957-58). [Leaf v. McGowan, 13 Ill. App. 2d 58, 141 N.E. 2d 67 (1957)] where we find this statement:

“Joint accounts are peculiarly difficult to categorize in common-law terminology. Although they contain a survivorship feature, making them analogous to a joint tenancy, this analogy is weakened by the ‘joint and several’ ownership feature — the right of each depositor, as against the bank, to withdraw all the funds. It is not surprising, therefore, that the problem of the extent to which joint accounts are garnishable for the debts of one depositor has given rise to a wide variety of solutions.”

This note then points out that at one extreme some authorities hold a joint account is immune from garnishment, while, at the other extreme it has been “held that the entire account is subject to garnishment on the theory that the creditor is ‘subrogated’ to the power exercisable by the debtor-depositor to withdraw all the money”. The note then sets out a third view — “that the joint account should be garnishable only in proportion to the debtor’s ownership of the funds, as to which parol evidence is admissible to show the respective contributions of each depositor, as well as any intent of one to make a gift to the other”.

Without attempting to evaluate the merits of the above mentioned theories or views, we conclude that the last mentioned one is the most reasonable, and it is the one which we now adopt. In fact we find confirmation for this adopted view in the case of Park v. McClemens, EX’r, 231 Ark. 983, 334 S. W. 2d 709 where we held testimony conld be introduced to show the true nature of a joint account. This was reaffirmed in the case of Ratliff v. Ratliff, Adm’x, 237 Ark. 191, 372 S. W. 2d 216.

In an attempt to clarify and simplify to some extent the law and procedure with, reference to the garnishment of joint bank accounts, we proceed to apply the adopted theory to the facts in the case under consideration, and also to the order of the trial court above set forth.

One. It goes without argument that Mrs. Gardner has (or might have) some'interest in the money in the joint account. Therefore she should have been made a party to the garnishment proceedings against the bank. This can be done upon remand.-

Two. The trial court held, in the absence of proof to the contrary, that presumably Mr. and Mrs. Gardner owned the.funds in equal amounts, and ordered the funds to be paid over to them. The effect of the trial court’s order was that Hayden could not garnishee Mr. Gardner’s one-half of the funds. It is our view that under the facts in this case the court should have held all of the joint bank account was prima facie subject to garnishment, and that the burden was on each joint depositor to show what portion of the funds he or she actually OAvned. We believe this is the' fair and reasonable rule because the' depositors are in a much better position than the judgment creditor to know the pertinent facts.

Three. Even though the trial court found Mr. Gardner OAvned one-half of the funds it also held appellant could not maintain a Writ of Garnishment against the bank for that amount. Under the vieAv Ave have adopted that Avas error.

On remand, any funds ■ adjudged to belong ■ to Mr. Gardner Avill be subject to garnishment.- . . ■

The judgment of the trial court-is reversed and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.


author: Sam Robinson, Associate Justice.

text:
    Grumbles v. Grumbles.
    5-3201
    381 S. W. 2d 750
    Opinion delivered September 14, 1964.
    [Rehearing denied October 5, 1964.]
    ’ Arnold é Hamilton, for appellant.

      Carneal Warfield, for appellee.
   Sam Robinson, Associate Justice.

This appeal grows out of a divorce suit. Plaintiff, Lois Thomas Grumbles, who is the appellant here, was granted a divorce from appellee. There has been no appeal from that part of the decree granting the divorce and granting custody of the two children to plaintiff-appellant, but appellant appeals from that part of the decree awarding alimony and child support contending that not enough was allowed, and also from that part of the decree pertaining to the division of real and personal property.

Appellant and appellee were married in July, 1944 and separated in December, 1961. Two children were born of the marriage; Thomas Harold was born in 1951, and Judith Lynne was born in 1953. The petition for divorce was not contested and the decree of divorce was entered on July 30, 1962. The court reserved for further consideration questions regarding division of the property and alimony and child support. Later, considerable evidence was introduced touching on these questions. After considering all the evidence, the court made findings of law and facts and announced that a decree would be entered in accordance therewith. At this point the parties stated that they would like to confer in an effort to reach an agreement on a division of the property. The court agreed and the parties retired. Later they came back into open court and the appellant personally informed the court that an agreement had been reached and, from a written memorandum, stated the terms thereof. The court approved the agreement, made notes of the details, and instructed counsel for appellee to draw a precedent for a decree embodying the terms of the agreement. This was done, but when the precedent was presented to the court appellant objected to it being entered as a decree, not because it did not embrace the agreement as made, but because appellant had-apparently changed her mind.

The agreement appears to be fair to both sides, but appellant argues that she is not bound by it and states the proposition in this manner: “When is an agreement not an agreement, may be the most apt way to pose the pivotal question.” Appellant cites no authority to the effect that she is not bound by the agreement, as to the provisions óf the decree. But we may assume that in some circumstances a party would not be so bound. Here, however, when the court questioned counsel as to the objections to the precedent, counsel stated that it should be made clear that Mrs. Thomas, mother of appellant, and from whom the parties had borrowed money, is not a party to this litigation; this Avas not a valid objection. The record itself sIioavs Mrs. Thomas is not a party. There was, however, one mistake in the precedent. It showed 10 shares of KSVA stock which was going to Mrs. Thomas, when it should have been 12 shares. The mistake Aras corrected.

Some insurance policies in which the children Avere named as beneficiaries were also mentioned, but under the decree, as entered, the appellee is to continue to pay the premium on the policies; hence, there can be no valid objection on that point. In the circumstances the court had the discretion to overrule appellant’s objection to entering the decree to Avhich appellant had previously consented, Garretson v. Altomari, 181 N.W. 400, and from the record Ave cannot say that the court- abused its discretion.

Appellee is a dentist and earns approximately $1,-000.00 per month after taxes. Appellant Avas allowed $354.00 per month alimony and child support, and under all the facts and circumstances Ave cannot say that the court abused its discretion in that respect.

The decree is affirmed.

At the outset, the chancellor allowed a preliminary fee of $150.00 for appellant’s attorney. Apparently the matter of an additional fee at the close of the case was not taken up with the trial court. Appellant now asks that this court alloAv an additional fee of $2,500.00, pins the total cost of the appeal, amounting to about $900.00.

We Avould much prefer that the trial courts fix the attorney’s fee in cases of this kind for the work done by attorneys in the trial court. We ^ would then have no difficulty in fixing the fee for the amount of Avork done on appeal. In this case, hoAArever, since the fee for the trial work has not been fixed, and it being desirable to bring the litigation to an end as soon as practical, Ave are.allowing a total fee of $1,500.00 to he added to the $150.00 heretofore alloAved. Each party is to stand one-half of the cost of appeal, including the cost of the record, briefs, and filing fee.


author: Frank Holt, Associate Justice.

text:
    Crabtree v. State.
    5099
    381 S. W. 2d 729
    Opinion delivered September 14, 1964.
    No brief filed for appellant.

      Bruce Bennett, Attorney General, By: Jack L. Lessenberry, Chief Asst. Atty. Gen., for appellee.
   Frank Holt, Associate Justice.

The appellant was charged by a felony information with the crime of unlawfully resisting the execution of a criminal process in violation of Ark. Stat. Ann. § 41-2803 (1947). A jury trial resulted in Ms conviction and a penitentiary sentence of two and one-half years.

On appeal appellant questions the sufficiency of the evidence. The State presented evidence that Sheriff Birtcher and his Deputies, Pope and Gladden, went to appellant’s home for the purpose of searching appellant’s house for the illegal possession of intoxicating liquor. The Sheriff and his Deputies were in uniform and identified themselves as officers with a search warrant when appellant answered their knock at the front door. The appellant slammed "the door and ran to the rear of his house. Sheriff Birtcher and Deputy Pope immediately forced the door open and found the appellant in the kitchen where the Sheriff observed him disposing of untaxed liquor with one hand while pointing a pistol at the Sheriff ’s head with the other. In the struggle disarming appellant the pistol was also pointed at Officer Pope. According to appellant’s evidence it was his wife who went to the front door. He admitted he had a fully loaded gun in his hand because he did not know who was at the door but denied that he threatened the officers or pointed the gun at them. He contended that the first knowledge he had of the officers having a search warrant was when he was placed in jail. These were issues of fact to be determined by the jury. Certainly there was sufficient evidence to warrant the jury’s verdict. Williams v. State, 70 Ark. 393, 68 S. W. 241; Patterson v. State, 141 Ark. 422, 217 S. W. 480; Slim & Shorty v. State, 123 Ark. 583, 186 S. W. 308.

Appellant contests the validity of the felony information, urging that the trial judge erred in overruling his demurrer to the original information. In overruling appellant’s demurrer the trial court instructed the prosecuting attorney to amend the information. The prosecuting attorney filed a second or an amended information, whereupon appellant moved that such information be dismissed. It was then agreed by the appellant that the original information could be amended by interlineation which was done. Appellant insists the court should have then dismissed the second information. It is undisputed that appellant was tried upon the first information as amended by the interlineation with appellant’s approval. We fail to see any merit in appellant’s argument. Furthermore, the amendment of a formal accusation is permitted by statute where it does not substantially affect the nature or degree of the alleged crime. Ark. Stat. Ann. § 43-1024 (1947). The offense alleged in the instant case was not so affected by the amendment.

Appellant argues for reversal that the search warrant was not a valid and subsisting process and should not have been admitted into evidence because the search warrant and affidavit upon which it was based were not properly prepared or legally issued. When these two instruments wore admitted into evidence the court inquired if there were any objections and the appellant’s attorney replied there were none. No motion was ever made to suppress this evidence. It is necessary that proper objections and exceptions be made in a criminal case in -order to preserve a point for review upon appeal. Hicks v. State, 225 Ark. 916, 287 S. W. 2d 12; Hardaway v. State, 237 Ark. 966, 377 S. W. 2d 813.

There is yet another answer to appellant’s attack on the validity of the search warant. The validity of a criminal process, regular on its face, is immaterial in the prosecution for a violation of this statute. One cannot defy and obstruct the service of such a process without being subject to prosecution. Appling v. State, 95 Ark. 185, 128 S. W. 866. It is undisputed that the search warrant in the instant case was regular on its face.

The appellant contends that the £ court erred in giving court’s instructions over defendant’s objections which were dictated into the record and which objections and exceptions were made a part of this motion”.. This general assignment of error is too indefinite and is not sufficient to bring the matters forth on appeal. Page v. State, 181 Ark. 314, 25 S. W. 2d 422; McGee v. State, 215 Ark. 649, 375 S. W. 2d 234.

Finding no merit in any of appellant’s assignments of error, the judgment is affirmed.

       “Every person who shall resist the execution of any civil or criminal process by threatening or by actually drawing a pistol, gun or other deadly weapon upon the sheriff or other officer authorized to execute such process shall, upon conviction thereof, be imprisoned in the penitentiary for a term not less than one [1] nor more than five [5] years.”


author: Jim Johnson, Associate justice.

text:
    Peters v. Peters.
    5-3244
    381 S. W. 2d 748
    Opinion delivered September 14, 1964.

      Kenneth Goffelt, for appellant. '

      Judith Rogers, for appellee.
   Jim Johnson, Associate justice.

This is an appeal from a denial of a petition for reduction of alimony payments.

-A divorce decree was entered May 1, 1962, by the Pulaski Chancery Court in which appellant Clyde Peters was ordered to pay appellee Mildred Peters the sum of $50.00 per week as permanent alimony (out of which she was to support their daughter), together with all past and future medical and hospital bills of appellee and their minor child as well as all obligations outstanding" as of February 12, 1961. Thereafter on August 20, 1963, appellant filed a motion requesting a modification of the decree, alleging changed conditions. Appellee countered with a motion alleging appellant had refused to make support payments and pay doctor bills in accordance with the' order of the court, praying that appellant’s motion be dismissed, for attorney’s fee and that the payments be increased $10.00 per week until all arrearages are paid.

At the conclusion of a lengthy hearing on these motions, the trial court held that appellant’s request for modification, should be denied and his motion dismissed, and that the motion of appellee should be sustained. Judgment in the sum of $1,100.00 for arrearages was entered October 2, 1963. From such order and judgment comes this appeal.

At the time of the divorce decree in 1962, appellant was working about 70 hours a week and earning some $250.00 per week. Even so, the family indebtedness which appellant was required by the divorce decree to pay was considerable. Soon after the divorce appellant entered into a financial arrangement with a credit union, depositing his full check, receiving enough personally for a simple existence, the credit union paying out the balance to appellee and various of their creditors. For some time appellant appeared to make a diligent effort under the circumstances to comply with the orders of the court. Then appellant became ill, and during April, May, June and July, 1963, had no earning capacity at all. The illness resulted in his earning capacity being cut approximately in half, at least temporarily. At the time of the hearing on the motions, appellant was unemployed and had been for several weeks, following garnishment proceedings brought by a creditor on a medical debt incurred by his teen-age daughter unbeknownst to appellant.

The record does not reflect that appellee’s needs have diminished since the divorce, however it was shown that applleo is gainfully employed, albeit at a meager salary.

The state of the record being thus, wo cannot escape the conclusion that the trial court erred in failing to find that such changed conditions exist as to warrant a modification of the divorce decree.

‘ ‘ The chancery court has the unquestioned power . . •. to alter the allowance of alimony at any allowed being governed by the circumstances of the particular case.” Boniface v. Boniface, 179 Ark. 738, 17 S. W. 2d 897. Ark. Stat. Ann. § 34-1213 (Repl. 1962).

After a carefu.1 review of the record on trial de novo we conclude that the circumstances of this particular case warrant a reduction in the amount of alimony to $25.00 per weelc during such time as appellant’s illness continues to necessitate limited employment. Upon a showing that appellant is able to resume full employment, the Chancellor is directed to order resumption of full compliance with the orders contained in the divorce decree together with $10.00 per month to be applied to the accumulated arrearages.

The motion of appellee’s attorney for the release of $100.00 previously deposited with this- court for the payment of brief cost and attorney’s fee is granted. An additional attorney’s fee in the amount of $100.00 for services .on this appeal is awarded appellee’s attorney.

Modified and affirmed.

Justice McFaddin would affirm the decree in its entirety.

Justice Robinson not participating.


author: Bruce Ivy, Special Associate Justice.

text:
    Coffelt v. Bryant, Secretary of State.
    5-3433
    381 S. W. 2d 731
    Opinion delivered September 14, 1964.

      Kenneth Coffelt, for appellant.

      Bruce Bennett, Atty. General, By: William L. Patón, Jr., Asst. Atty. Gen. and Jerry L. Patterson, Asst. Atty. Gen., for appellee.
   Bruce Ivy, Special Associate Justice.

This is an action brought by appellant for a writ of mandamus to have his name placed on the ballot as an Independent Candidate for the office of Attorney General of the State of Arkansas at the General Election to be held November 3, 1964.

Appellant presented to appellee a ’petition signed by seventy-five qualified electors of the State of Arkansas and demanded that his name be placed on the ballot as an Independent Candidate. Appellee refused said petition, basing his action upon an Opinion from the Attorney General of the State of Arkansas, because appellant had failed to secure the signatures of 46,214 qualified electors, being 15 percent of the total votes cast for all candidates for the office of Governor at the preceding election. Appellant also tendered to Nancy J. Hall, State Treasurer, a check in the sum of $37.50 as a filing fee, which was refused.

Subsequent to the refusal of his petition and the ballot fee appellant brought this action.

Appellant alleged, among other things, that the refusal of his petition and the filing fee violates his rights under the Constitution and the Laws of the State of Arkansas, the Constitution of the United States of America and particularly Act 205 of the Arkansas General Assembly of 1957 and violates the Fourteenth Amendment to the Constitution of the United States of America. He claims that Act 205 of 1957 gives him the right to be an Independent Candidate by securing the signatures of not less than 50 nor more than 1,000 qualified electors. He also alleges that to require signatures of 46,214 qualified electors would prohibit any person from becoming an Independent Candidate for a state office. That such a requirement would discriminate against an Independent Candidate for public office. He alleges that the action of appellee makes it impossible for an Independent Candidate, without party affiliation, to run for public office in the State of Arkansas. He prays for a writ of mandamus directing appellee to accept his petition and place his name on the ballot to be voted on at the General Election on November 3, 1964.

The matter was heard before Special Judge Guy Ainsler, Jr., on August 6, 1964, and the court found in favor of appellee, from which judgment appellant brought this appeal.

In appellant’s brief he sets out the points to be relied upon, which are as follows:

‘11. The judgment of the lower court is contrary to the provisions of Section 5, Amendment 29, and Sections 3, 4, and 18, Article 2, and Section 2, Article 3, Bill of Rights, Arkansas Constitution, and Act 205 of the Acts of the General Assembly of the State of Arkansas for 1957, and Section 1, Amendment 14, and par. 1, Section 2, Article 4, United States Constitution, and violates appellant’s rights and the rights of the electors of this State, under the provisions of these laws.
“2. Act 352 of the Acts of the General Assembly of the State of Arkansas for 1955, upon which appellee relies, on the advice of the Attorney General, is unconstitutional in that it conflicts with Section 5, Amendment 29, and Sections 3, 4, and 18, Article 2, and Section 2, Article 3, Bill of Rights, Arkansas Constitution, and Section 1, Amendment 14, and par. 1, Section 2, Article 4, United States Constitution, because
“ (a) The act places an unreasonable, arbitrary and prohibitive burden on appellant, and others similarly situated, and the electors of this state.
‘ ‘ (b) The Act discriminates against appellant and the electors in that it places an arbitrary, unreasonable, greater and prohibitive burden on an Independent Candidate for office and his supporters as compared to candidates for office with party affiliation, and as compared to candidates for municipal and Township offices and for vacancies in office, and the supporters of those candidates.
■ “(c) The act destroys the right of equality of all persons before the law, and the right of the people to petition to enforce their inalienable rights. The Act abridges these rights. The Act grants to certain citizens and classes of citizens privileges and immunities which upon the same terms do not apply, and are not required of other citizens.
“(cl) The Act makes elections in Arkansas everything hut free and equal, and prevents the free exercise of the right of suffrage.
“(e) The Act abridges the privileges and immunities of petitioner and the citizens and electors of Arkansas, and deprives them of their liberty to seek office as an Independent, and to vote for an independent candidate for state office, without due process of law, and denies to them the equal protention of the laws.
“3. Act 352 of the Acts of the General Assembly of the State of Arkansas for 1955 was repealed and superseded by Act 205 of the Acts of Arkansas for 1957.”' ' ' '

There seem to he only Two (2) main issues involved:

NUMBER ONE: Was Act 352 of 1955 repealed by Act 205' of 1957? Whether or not the law still requires Independent Candidates running for state offices, where there is no vacancy, to secure the signatures of fifteen percent (15%) of the total vote cast for Governor at the prior General Election.

NUMBER TWO: Whether or not Act 352 of 1955 discriminates against Independent Candidates and is in violation of the Constitution of the State of Arkansas and the Constitution of the United States and whether or not said act is unconstitutional.

Iii taking np and considering Number One, we have carefully studied and considered the provisions of Act 205 of 1957. The title of this Act reads as follows:

“AN ACT to Amend the Election Laws of This State to Require Primary Elections in Certain Instances ; to Repeal Conflicting Laws; and for Other Purposes.”

Section 1 of said Act amends Section 1 of Act 238 of 1943. Section 2 amends Section 1 of the initiated Act 1 of 1916, as amended by Section 1, Act 277.of 1951, Section 3-204, Arkansas Statutes of 1947. Section 3 of said Act amends Section 22 of Act 30 of 1891, Section 3-261, Arkansas Statutes of 1947. Section 4 provides that Section 1, Act 479 of 1949, Section 3-266, Arkansas Statutes of 1947, was repealed in its entirety. In the closing of the Act it states ‘ ‘ Any provision of our election laws to the contrary is hereby repealed in its entirety to this extent. ’ ’

It will be seen that Act 205 of 1957 refers to specific Acts to be amended or repealed and no reference is made to Act 352 of 1955. The provisions of Act 352 of 1955 are not in conflict with Act 205 of 1957.

In addition to the Amendments and repeal of certain Acts, Act 205 of 1957 fixes the law for the nominations of any and all major political parties as candidates for public offices in the State of Arkansas and regulates the holding of these elections.

The Act also provides the methods by which an Independent Candidate may qualify to run for office in case of a vacancy. One of the methods is by a petition of not less than 50 nor more than 1,000 qualified electors, for state offices.

Appellant contends that Act 352 was repealed directly by Act 205, or by implication. This court has held that repeals by implication are not favored. Arnold v. City of Jonesboro, 227 Ark. 832, 302 S. W. 2d 91; Daniel v. City of Clarksville, 232 Ark. 31, 334 S. W. 2d 645; Bond v. Missouri Pacific R. Co., 233 Ark. 32, 342 S. W. 473.

After a careful study of Act 205 of 1957 and the laws relating thereto, we hold that Act 352 of 1955 was not repealed by Act 205 of 1957 and was not repealed by implication. The provisions requiring an Independent Candidate who desires to run for a state office where there is no vacancy to secure a petition of 15 percent of the qualified electors are still in full force and effect.

In considering issue Number Two, whether or not Act 352 of 1955 discriminates against an Independent Candidate and is in violation of the provisions of the Arkansas Constitution and the Constitution of the United States and whether or not this Act is unconstitutional, we have given thoughtful consideration to appellant’s argument and the citations contained in his brief. After making a study of the cases cited it is our opinion that these cases are not in conflict with the provisions of Act 352 of 1955.

Appellant contends that Act 352 of 1955 is unreasonable and arbitrary, places an undue burden upon Independent Candidates, discriminates against them in favor of other candidates, and is unconstitutional. He cites the following cases: Spreckles v. Graham, 194 Cal. 516, 228 P. 1040; Hooper v. Britt, 203 N. Y. 144, 151, 96 N. E. 371; State ex rel Ragan v. Junkins, 85 Neb. 1, 122 N. W. 473; State ex rel Holliday v. O’Leary, 43 Mont. 157, 115 P. 204.

After making a study of the cases cited it is our opinion that the holdings in these cases add very little to appellant’s contentions.

Appellant also cites the cases of Moorman v. Taylor, 227 Ark. 180; Fisher v. Taylor, 210 Ark. 387; and Newton County Republican Central Committee v. Clark, 228 Ark. 965.

In the case of Moorman v. Taylor the court held that Act 352 of 1955 did not apply to city officers. That was the only question involved.

Fisher v. Taylor. Fisher was a resident of Mississippi County, Arkansas, but at the time he was serving in the United States Navy and desired to become a candidate for the office of State Representative in the General Assembly for Ms County. "While on a ship at sea he prepared and executed a power of attorney authorizing and empowering his mother to take the necessary steps to have his name placed on the ballot in the 1946 Democratic Primary Election. His mother in due time went to the Secretary of the Democratic Central Committee of Mississippi County and procured from him a blank Party Loyalty Pledge, signed the pledge, left it with the Secretary, and paid the required fee of $50.00, after which the Chairman of the County Central Committee returned the check and refused to place Fisher’s name on the ballot. Thereafter appellant brought suit in the lower court praying that a writ of mandamus issue requiring his name to be placed on the official ballot. The lower court sustained the contentions of the Democratic Central Committee, and Fisher appealed.

In that case the court held: “Where there has been a substantial compliance with the party rules by one seeking to become a candidate for office, he should not be deprived of this privilege because of a failure to observe literally all requirements of such rules.” The Court further stated: ‘ ‘ The right to become a candidate for public office is a fundamental right, not to be curtailed without good cause; and any Statute or party rule, by which this right is diminished or impaired should receive a liberal construction in favor of a citizen desiring to exercise the right.”

It can be seen that the Fisher-Taylor case has no bearing on the issues involved in this case. It did not mean that an Independent Candidate could by-pass a Primary Election and run for public office by paying $37.50 and having a petition signed by not less than 50 qualified electors.

Newton County Republican Central Committee v. Clark, 228 Ark. 965. This case involved the interpretation and validity of Act 205 of 1957, commonly called the Compulsory Primary Act, which involves all political parties. The holding in that case did nothing to impair the provisions of Act 352 of 1955, which only added other provisions to our election Mays.

Again referring to appellant’s contentions that Act 352 of 1955 is unreasonable, arbitrary and prohibitive, places an undue burden upon an Independent Candidate, and is unconstitutional, it is our opinion that the Legislature, in passing this Act, did not intend to place a lighter burden upon Independent Candidates than that placed upon candidates who run in party primaries.

This may well have been the reasoning of the General Assembly: The regular candidates who run for office are required to pay extensive filing fees which are used by the party to defray the expense of holding Primary Elections. In many cases these candidates are faced with strong opponents, and they are required to carry on a time-consuming and expensive campaign. After they have won the election and have become the successful nominees they should not be faced with Independent Candidates who have paid only a $37.50 filing fee and secured a petition with not less than 50 names signed by qualified electors, unless these Independent Candidates can show a public demonstration and demand for their election. If this condition should exist, it would not be to difficult for the Independent Candidate, where there is no vacancy, to secure a petition signed by not less than 15 percent of the qualified electors at the last election. To permit an Independent Candidate to run for office where there is no vacancy without securing a petition signed by 15 percent of the qualified electors would be unfair and unjust to the regular candidate who had been nominated for office. In addition to being unfair and unjust it could easily be argued that this would amount to a discrimination against the regular nominee.

Appellee denies that appellant’s rights under the Fourteenth Amendment are in any way restricted by Act 205 of 1957. He cites the case of Snowdon v. Hughes, 64 S. Ct. 397, 321 U. S. 1, for which the United States Supreme Court held: “The protection extended to citizens of the United States by the privileges and immunities clause . . . does not include rights pertaining to state citizenship and derived solely from the relationship of the citizen and his state established by state law. Slaughter-House Cases, 16 Wall. 36, 74, 79; Maxwell v. Bugbee, 250 U. S. 525, 538; Prudential Insurance Co. v. Cheek, 259 U. S. 530, 539; Madden v. Kentucky, 309 U. S. 83, 90-93. The right to become a candidate for state office, like the right to vote for the election of state officers, Minor v. Happersett, 21 Wall. 162, 170-78; Pope v. Williams, 193 U. S. 621, 632; Breedlove v. Buttles, 302 U. S. 277, 283, is a right or privilege of state citizenship, not of national citizenship which alone is protected by the privileges and immunities clause.”

Furthermore, even an unlawful denial by state action of a right to state political office is not a denial of a right of property or of liberty secured by the due process clause. Taylor and Marshall v. Beckham, 178 U. S. 548; Case v. Newell, 246 U. S. 650.

There is no denial of equal protection unless there is shown to be present an element of intentional or purposeful discrimination. However, a discriminatory purpose is not to be presumed. Tarrance v. Florida, 188 U. S. 510. There must be shown “clear and intentional discrimination.” Gundling v. Chicago, 177 U. S. 183; Bailey v. Alabama, 219 U. S. 219. Certainly the appellant in the case at hand can show no “clear and intentional discrimination” directed toward him as an Independent Candidate for public office. The statute which he attacks sets out the same requirement for him as it does for any other Independent Candidate seeking any other political office in the State whereof a vacancy does not exist.

Act 352 of 1955 complies with and is not in violation of the Fourteenth Amendment to the Constitution of the United States. The United States Supreme Court in the case of McDougal et al. v. Greene et al., 335 U. S. 281, 93 L. Ed. 3, 69 S. Ct. 1, upheld an Illinois statute which required that a petition to nominate a candidate for a General Election for new political parties be signed by at least 25,000 qualified voters, including 200 qualified voters from at least 50 counties in the State of Illinois.

Our law provides three methods by which a candidate may qualify for public office:

NUMBER. ONE: He can become the nominee of one of the parties in the Primary.

NUMBER TWO: He may become an Independent Candidate through nomination by petition in compliance with Act 352 of 1955 where' there is no vacancy, or in compliance with Act 205 of 1957 where there is a vacancy.

NUMBER THREE: By qualifying as a write-in candidate as required by law, Arkansas Statutes Annotated, § 3-826 and § 3-1022.

The court will take judicial knowledge of the fact that write-in candidates have met with success in previous elections in this state. This avenue is still open to appellant if he desires to follow it.

After full consideration of all the facts and the law we are of the opinion that Act 352 of 1955 is not unconstitutional and that the constitutional rights of appellant have not been violated.

Finding no error the Judgment of the lower court is hereby affirmed.

Robinson and Holt, JJ., not participating. Special Associate Justice E. DeMatt Henderson also sat in the case.


author: Carleton Harris, Chief Justice.

text:
    Kinder v. Miller.
    5-3272
    382 S. W. 2d 372
    [Rehearing Denied October 26, 1964.]
    Opinion delivered September 21, 1964.

      Williams & Gardner, for appellant.

      Robert E. Inoin and W. H. Schulze, for appellee.
   Carleton Harris, Chief Justice.

On February 19, 1963, Anna Belle Martin Miller, appellee herein, entered into an agreement to sell 302 acres of land, located in Pope County, Arkansas, to Chester U. Kinder and J. C. Kinder, his son. On the above date, the parties met at the Bank of Russellville, and J. C. Kinder, by check, made a $200.00 down payment. Upon the face of the cheek was written, ‘ ‘ Earnest Money on Purchase Price of 302 acres of land on Pea Ridge, Pope County, Arkansas, 5-1-1963.” Mrs. Miller endorsed the back of the check as follows: “2-19-63, I agree to furnish Abstract up to date with good and merchantable title to said 302 acres land on Pea Ridge for the sum of an additional $14,800.00 to be paid on 5-1-1963.” On the same day, the two Kinders and Mrs. Miller went to the Farmers Home Administration, an agency of the United States Department of Agriculture, for the purpose of the Kinders applying for a loan to enable them to purchase the property. As a prerequisite to obtaining consideration for Kinder’s loan application, the parties executed an instrument entitled, “Option to Purchase Real Property.” Kinder was not approved for the loan, and this information was conveyed to Mrs. Miller; however, appellant told Mrs. Miller that he and his son were endeavoring to make arrangements; that “we have another deal on for it.” Subsequently (on April 23), Kinder took a man by the name of Monroe Davis to see Mrs. Miller. Davis testified that he and appellee reached an agreement on the purchase of the place; that he was to pay $2,000.00 down at the time the deeds were executed-, $500.00 per month for the next six months, and thereafter he would pay $2,000.00 a year until the full amount of $15,000.00 had been paid. He stated that out of the first $2,000.00 payment' niade to Mrs. Miller, $200.00 would be given Mr. Kinder (the refund of the earnest money payment the Kinders had made). Mrs. Miller confirmed that a conversation took place with Davis and Kinder, but she ■ stated that no definite arrangement was made. Admittedly, no written contract was entered into between these parties. Appellee testified that Kinder said that he could not get the money, and that he was surrendering his rights in the option to Davis.

“He said he was turning it over to Mr. Davis and him and Mr. Davis would work out the two hundred dollars between them if me and Mr. Davis could work out a deal between us on the payment.”

. According to Monroe Davis, Mrs. Miller was to have the abstract brought up to date and notify him when this was done; thereafter, he intended to take the abstract to his' attorney.

On May 1, Mrs. Miller entered into a written contract with Charles Reed and Poster C. Davis, whereby she agreed to sell them the land. On May 6, Chester Kinder directed a letter to Mrs. Miller, advising that he accepted the offer contained in the option, and was ready to pay the purchase price upon delivery of the abstract, certified to date, together with proper deed. This notice was received by Mrs. Miller on May 8. Suit was instituted by Chester Kinder and wife against Mrs. Miller seeking specific performance. Reed.and Foster Davis intervened, setting up that they had entered into a contract with appellee to purchase the property for the sum of $15,000.00. On trial, the court found for appellee, holding that the petition of the Kinders for specific performance should be dismissed for want of equity, but giving judgment in favor of the appellants against Mrs. Miller for the sum of $200.00. The court further held that the intervenors (Reed and Foster Davis) were entitled to enforce their contract of May 1, 1963, against the appellee. "From the decree so rendered, appellants bring this appeal.

Mr. and Mrs.- Kinder predicate their cause upon the “Option to Purchase Real Property,” which was executed at the .office of the Farmers Home Administration on February 19. The clauses relied upon by appellants read as follows :

“1. The Seller agrees to pay all expenses of title, clearance including, if required, abstract or certificate of title or policy of title insurance, continued down to the date of acceptance of this option and thereafter continued down to and including date of recordation of the deed from the Seller to the Buyer, * * *
“8. This option may be exercised by the Buyer, at any time while the offer herein shall remain in force, by mailing, telegraphing or delivering in person a written notice of acceptance of the offer to ANNA BELLE MARTIN MILLER at Box 725 in the city of Russell-ville, County of POPE, State of ARKANSAS. The offer herein shall remain irrevocable for a period of 2 months from the date hereof and shall remain in force thereafter until (1) year from the date hereof unless earlier terminated by tbe Seller. The Seller may terminate this offer at any time after the 2 months’ irrevocable period provided herein by giving to the Buyer ten (10) days written notice of intention to terminate at the address of the Buyer. Acceptance of this option by the Buyer within ten (10) days after such notice is received by him shall constitute a valid acceptance of the option.”

Appellants point out that no abstract was ever delivered, and contend that, since the offer was never terminated in writing by Mrs. Miller, the Kinders had until February 19, 1961, to exercise the option; that they actually exercised it in writing on May 6, 1963 (when the notice of acceptance was mailed to Mrs. Miller).

It is quite apparent that the Kinders must rely almost entirely upon the option to purchase, and we accordingly first discuss the validity of that instrument. After careful consideration, we are of the view that this option was, at the time of the acceptance by appellants, totally inoperative. The option seems clearly to have been given solely for the purpose of permitting the Kinders to apply for a loan from the Farmers Home' Administration. The instrument is a printed Government form, and certain of its provisions emphasize the requirements of the F.H.A. Section 2 of the option provides:

“2. This option is given to enable the Buyer to obtain a loan insured or made by the United States of America, acting through the Farmers Home Administration, United States Department of Agriculture, and its duly authorized representatives, (hereinafter called the “Government”), for the purchase of said property. It is agreed that the Buyer’s efforts to obtain such a loan constitute a part of the consideration for this option.”

In fact, Section 4 concludes by providing, ‘ ‘ Title evidences will be obtained from persons and be in such form as the government shall approve.” Section 6 provides :

“6. The Seller further agrees to convey said property to the Buyer by general warranty deed (except where the law provided otherwise for conveyances by trustees, officers of courts, etc.) in the form, manner and at the time required by the Government, conveying to the Buyer a valid, unencumbered, indefeasible fee-simple title to said property meeting all requirements of the Government; * * *”

We think, from a study of the language quoted, that when the government loan to Mr. Kinder was disapproved, the option relied upon by appellants became valueless, and ineffectual.

The transaction between the parties is therefore controlled by the notations on the check given on February 19. According to the writing on the face of the check, the Kinders were given until May 1, 1963, to complete the transaction, and under the wording of the endorsement, the $14,800.00 was to be paid to Mrs. Miller on that date. It is true that the abstract was never furnished to either Kinder or Monroe Davis (though appellee had sent it to Vance Abstract Company to be “•brought up to date”), but the record does not reveal that either man again contacted appellee in an effort to obtain the abstract prior to May 1, nor did either offer Mrs. Miller the purchase price before that date. As stated, Kinder was evidently relying upon the provision of the option, heretofore discussed, and which we have determined to be nugatory.

This appeal is somewhat puzzling, inasmuch as it appears from the testimony that Kinder’s original interest in promoting a sale was only for the purpose of recovering the. $200.00 which had been paid at the outset as earnest money; he so testified; in fact, this finding was made by the trial court, and Kinder was given judgment for $200.00.

The trial court’s dismissal of the complaint was based on somewhat different reasoning from that herein set out, the Chancellor finding that appellants had abandoned any rights that they might have had under the option. Certainly, there was evidence to indicate a lack of desire on the part of the Kinders to pursue any possible rights under the purported option to purchase the property, and, in fact, even under Chester Kinder’s own testimony, it is difficult to understand whether Mrs. Miller was to sell the property to Kinder,’ or to Monroe Davis. From Chester Kinder’s testimony:

“Q. Now did Mr. Davis understand at that time— you were talking with him and Mrs. Miller — that he was going to get the land from Mrs. Miller?
A. He was buying through me, but he was making the payments to Mrs. Miller, yes.
Q. And the terms were two thousand dollars down, didn’t you say?
A. That’s what him and Mrs. Miller agreed on that date.
Q. Did you go along with that?
A. Yes.
Q. All right, he was going to pay five hundred dollars a month for a certain period of time, didn’t you say?
A. Yes.
Q. Did you go along with that?
A. Well it was alright with me. I told him any deal him and Mrs. Miller made on the terms would be all right with me.” * * *

Subsequently, however, he testified:

“I told Mr. Davis — this is what I told Mr. Davis— I told him if anything interfered if he wasn’t going to get the place, under the trade him and Mrs. Miller made, even at the last hour, to let me know it and I was going to take the place.”

Also, it would appear that if Kinder had wanted to purchase the property himself, financial arrangements could have been made with Mrs. Miller for he testified:

“After we came out of the bank and was going to her car — she says, ‘I can’t think of everything, but I could have sold you boys this place and financed it myself.’ ” '

There was also testimony by Charles Reed that J. C-Kinder had told him that the Kinders were not buying the place; that ‘ ‘ if you want to, go ahead and buy it. ’ ’ J. C. Kinder denied that such a statement had been made, and the testimony is conflicting in several respects throughout the record, but the Chancellor, of course, had the opportunity to view the witnesses, and hear their testimony.

At any rate, as previously stated, we hold that when the Kinder application for the loan was disapproved, the option was without effect, and we further find that appellants did not comply with the provisions of their agreement, vis, to pay the balance of the $15,000.00 to appellee on May 1, 1963.

Affirmed.

      The instrument was executed by Mrs. Miller as “seller” and by Chester Kinder and wife as “buyers.” J. C. Kinder did not sign since the agency apparently would not permit more than one of the parties to make application for the loan.

       Emphasis supplied.

       It is not clear whether the loan was rejected in March or in April.

       The transcript makes it clear that Monroe Davis was familiar with the notations on the check, and that he was aware of the fact that the May 1 date was particularly important. From the transcript:
      “Q. All right, sir. Did you check at the abstractor’s office before you left Russellville that afternoon? To see whether or not the abstract had been—
      A. No, sir. It was a few days after that.
      Q. All right, when did you check?
      A. A few days before the 1st of May.
      Q. All right, sir. And where?
      A. I checked over at Vance’s office.
      Q. And did you learn that the abstract was there?'
      A. Mrs. Vance uh—
      Q. You can’t tell what she told you.
      A. Yes.
      Q. The abstract had been delivered there to be brought up to date ?
      A. Right.
      Q. Has that abstract ever been delivered to you for examination?
      A. No, sir,

        Q. Now, Mr. Davis did you make several inquiries about the abstract ?
      A. I did.
      Q. When ?
      A. Shortly before the first of May.
      Q. All right, sir. Why the first of May?
      A. Uh — I knew about the check that Mr. Kinder had given her.
      Q. That’s this two hundred dollar check?.
      A. Right. And that’s all I knew about it.
      Q. Did you know that it had on it the date, first of May ?
      A. Right.
      Q. And that’s what you were worried about ?
      A. Right.
      Q. All right, sir. And did you inquire about the abstract?
      A. I did.
      Q. And from whom?
      A. Mrs. Vance.
      Q. And did you also inquire from Mrs. Miller ?
      A. Yes, on the 5th day of May.”

      Chester Kinder testified that he was no more interested in Monroe Davis getting the place than in somebody else getting it, but that he expected to get his S200.00 back through a sale to Davis.


author: Ed. F. Mceaddin, Associate Justice.

text:
    Russell v. City of Rogers.
    5-3285
    382 S. W. 2d 378
    Opinion delivered September 21, 1964.
    [Rehearing Denied October 26, 1964.]

      Jeff Duty, for appellant.

      Bob Scott, for appellee.
   Ed. F. Mceaddin, Associate Justice.

This is the second appearance of this case. See Russell v. Rogers, 236 Ark. 713, 368 S. W. 2d 89. The opening paragraph of the opinion on the first appeal states the situation:

‘ ‘ This is an action by the City of Rogers to recover judgment for $8,674.00 under an oral contract by which the appellant Bussell agreed to pay the city at the rate of $2.00 a foot for 4,337 feet of sewer line to he laid by the city in an undeveloped subdivision owned by Bussell. Bussell admits that the line was laid by the city. His defense is that he was induced by misrepresentation to enter into the contract. The circuit judge, considering the matter upon the pleadings and upon Bussell’s testimony in a deposition offered by the city, sustained the city’s motion for a summary judgment in the full amount sued for.”

We held that the summary judgment should not have been granted and remanded the case for a trial on the merits. Such trial was had to a jury and the City of Bogers recovered verdict and judgment against appellant, Mr. Bussell, for $8,674.00. Mr. Bussell prosecutes this appeal, claiming one point; "The verdict and judgment is contrary to the law and the evidence.”

Mr. Bussell insists that he was misinformed by the City of Bogers. He claims that he was told — and the City of Bogers admits that he was told — that the cost of the line would be $2.00 per foot, if paid on completion of the work, but it would be $4.00 per foot if paid later when connection was desired. Mr. Bussell claims that he was promised that all property owners would be treated the same; and that such was not true. When Mr. Bussell admitted the original contract with the City, he thereby admitted that he owed the City $8,674.00, unless (a) the statement that all would be treated alike was a material part of his contract, and (b) the City acted fraudulently in failing to advise him of contracts subsequently made with other property owners. When Mr. Bussell admitted the original contract, the City had made its case, and the burden was on Mr. Bussell to prove that he was excused from the contract because of fraudulent and material misrepresentations by the City. Nelson v. Cowling, 77 Ark. 351, 91 S. W. 773, 113 A.S.R. 155; Mazander v. Reed, 233 Ark. 511, 345 S. W. 2d 469; Clay v. Brand, 236 Ark. 236, 365 S. W. 2d 256.

Did Mr. Russell establish his claim of fraudulent and material misrepresentations? It was definitely shown that the representations regarding $2.00 and $4.00 were true when made in February 1961; that in April 1961 a different contract was made with persons situated differently from Mr. Russell; but that not one situated as was Mr. Russell was treated differently than was Mr. Russell. The City showed that Mr. Russell’s property (Hillerest Addition) was at the end of the line away from the disposal outlet, and that $16,000.00 was expended to connect Mr. Russell’s property to the system. There was evidence from which the jury could have concluded in favor of Mr. Russell; or could have decided — as it did — for the City. In other words, there was ample evidence to sustain the verdict and judgment rendered.

Affirmed.

      The case was submitted to the jury under instructions covering material and fraudulent misrepresentations. Mr. Russell made no objections to any of the instructions and did not ask the Court, for an instructed verdict in his favor.


author: George Rose Smith, J.

text:
    Woods v. Kirby.
    5-3284
    382 S. W. 2d 4
    Opinion delivered September 21, 1964.

      E. L. Holloway and Kirsch, Cathey cé Brown, for appellant.

      W. B. Howard, Jack Segars and John C. Watkins, for appellee.
   George Rose Smith, J.

This is an action in unlawful detainer brought by the appellant Woods to recover possession of a farm which he as landlord rented to the defendant Kirby for the 1963 crop year. Upon filing his complaint the plaintiff, having made the necessary statutory bond, had the sheriff serve a writ of possession upon Kirby. Ark. Stat. Ann. §§ 34-1506 to -1510 (Repl. 1962). Kirby was unable to make a retaining bond and therefore surrendered possession on the last day before it would have been the sheriff’s. duty to evict him.

The case was tried before a jury, whose verdict found Kirby’s eviction to have been wrongful and fixed his damages at $1,700. In appealing from the ensuing judgment Woods contends primarily that he was entitled to a directed verdict and secondarily that the amount of the verdict is unsupported by the evidence.

Upon the main issue there was a question of fact for the jury. In the latter half of 1962 Woods sold Kirby certain farming equipment, with Kirby giving a note for the purchase price. At the same time the parties orally agreed to the lease of the farm, with the understanding that in the following March Kirby would execute a renewal note and a security agreement to provide Woods with a lien upon the crop and the equipment for whatever Kirby’s indebtedness upon the equipment and as a tenant proved to be.

In 1962 Kirby bad lived on the farm as a day laborer, and he continued in possession. Woods and his witnesses gave testimony indicating that Kirby breached his contract by wrongfully refusing to execute the new note and security agreement. Kirby testified that it was Woods who was at fault, in that he demanded a lien upon a mechanical cotton picker which Kirby had acquired in a separate transaction and which was not to have been included (according to Kirby) in the consolidated loan. This conflicting evidence raised an issue of fact.

Counsel for Woods also argue that he was entitled to a peremptory instruction because Kirby waived his claim for damages by voluntarily surrendering possession of the land instead of waiting to be forcibly put off by the sheriff. This argument is without merit. One who is compelled to yield up the premises under the threat of legal process already issued may be said not to act voluntarily. Mack v. Patchin, 42 N. Y. 167; Corman v. Sanderson, 72 Wash. 627, 131 P. 198. Here Woods, the landlord, was not prejudiced by his tenant’s obedience to the command contained in the writ of possession that Woods had wrongfully obtained. To the contrary, Kirby’s submission saved whatever taxable costs a forcible ouster might have involved.

Woods is right, however, in insisting that the verdict for $1,700 is excessive. This award could be upheld only by permitting Kirby to recover attorney’s fees incurred by him in defending the present action. He was allowed to testify that he had agreed to pay one attorney half of any damages that he might be awarded and to pay a second attorney $300. The court instructed the jury that a tenant’s measure of damages for wrongful eviction includes reasonable attorney’s fees. The court was in error, for ordinarily counsel fees are not recoverable except when allowed by statute. Romer v. Leyner, 224 Ark. 884, 277 S. W. 2d 66. There is neither statutory nor common law authority for such an allowance in an unlawful detainer action.

We cannot correct the matter by an affirmance on condition of remittitur, for we are at a complete loss to say what damages the jury would have allowed if the attorney’s fees had not been considered. Kirby and his witness Ermert were decidedly indefinite in fixing the value of Kirby’s work in preparing part of the farm for cultivation. Ermert said that the cost of breaking the land was approximately “two or three dollars, I guess,” and that Kirby’s labor in cutting stalks was worth “About the same as breaking, I guess . . . Possibly a little cheaper. I don’t know.” The maximum award that the competent testimony would have supported is something less than a thousand dollars, but we cannot with confidence arrive at any maximum figure that the jury would surely have allowed. In the circumstances a new trial must be granted.

Other possible errors are argued, but they are not at all apt to arise upon a second trial. With respect to the appellant’s requested Instruction No. 5 it is enough to say that we cannot approve the language that was offered, for it might have precluded the tenant from recovering his expenditure for labor and materials that were actually beneficial to the landlord.

Reversed.


text:
    Johnson v. Hickey.
    5-3295
    382 S. W. 2d 377
    Opinion delivered September 21, 1964.
    [Rehearing Denied October 26, 1964.]

      Williams & Gardner, for appellant.

      Rotert E. Envm, for appellee.
   Sam Robinson, Associate Justice.

The issue here is whether appellee, Anna S. Hickey, has the legal right and capacity to sell 26 acres of land to James Wallace, or- is she legally obligated to sell it to appellants, her daughter and son-in-law, Beatrice and John Johnson. Mrs. Hickey has agreed to sell the land to Wallace, and appellants are attempting to prevent the consummation of the transaction.

The litigation was started by Mrs. Hickey as an action in ejectment to remove the Johnsons from the land where they were living at the time. The Johnsons set up equitable defenses and the ease was transferred to chancery. The Johnsons claim that they have an option to purchase the land and, in addition, that due to Mrs. Hickey’s alleged mental condition she does not have the mental capacity to make a valid conveyance to Wallace. After considering all the evidence, the Chancellor reached the conclusion that the Johnsons have no valid option to purchase, and that Mrs. Hickey is competent and has the mental capacity to make a valid conveyance. We agree with the Chancellor.

The property belonged to Mrs. Hickey’s husband. After his death all the children joined in a conveyance to their mother, appellee herein. Later, Mrs. Hickey sold part of the land to her son, Robert Hickey, and at a still later date, sold the 26 acres here involved to appellants. Appellants purportedly paid her $500.00 and gave their promissory note in the sum of $1,300.00 for the balance of the purchase price.

At the time of the sale to the Johnsons, Mrs. Hickey was drawing a $30.00 per month welfare check. Upon receiving the $500.00 and the $1,300.00 note, the welfare payments to her were stopped. She prevailed upon the Johnsons to trade back so that the Welfare Department would resume the monthly welfare payments. The John-sons réconveyed to Mrs. Hickey by warranty deed. The $500.00 which’ was supposed to have been paid as jaart of the purchase price in the first instance had been' deposited in a joint account, and only $100.00 had been used for the benefit of Mrs. Hickey. Notwithstanding the fact that she had received only $100.00, she cancelled the $1,300.00 note, and in addition, gave the Johnsons a mortgage on the property to secure the payment of $750.00.

In February, 1953, Mrs. Hickey conveyed part of the original home place (not the part involved here) to her son and daughter-in-law, Robert E. and Lorraine Hickey, who in turn conveyed it to the Johnsons. Although the deed from Mrs. Hickey to Robert and Lorraine was executed in 1953, it was not filed for record until March, 1963, a long time after this litigation began. When filed for record it had printed on it the following clause: .“With Option on Northwest Quarter of the Southwest Quarter of Section 26, Township 9 North, Range 22 West, containing 40 acres, more or less, to remain with heirs. ’ ’

. It is perfectly obvious from the deed, which was introduced in evidence as an exhibit, that the typewriter used in writing the clause purporting to grant an option was not the typewriter used in writing the other parts of the deed.

■ In a written opinion, the Chancellor found as a fact that Mrs. Hickey had not agreed to sell the land herein involved and that the testimony of appellants did not establish an enforceable contract. In Schumcm v. Hughes, 203 Ark. 395, 156 S. W. 2d 804, the court said: A memorandum of sale of land that does not show the purchase price, the terms and conditions of the sale, the time for payment is not sufficient to satisfy the requirements of the Statute of Frauds. See also Tate v. Clark, 203 Ark. 231, 156 S. W. 2d 218; Wyatt v. Yingling, 213 Ark. 160, 210 S. W. 2d 122.

Appellants also contend that Mrs. Hickey is not mentally competent to make a valid deed to Wallace, and that she has been subjected to undue influence. Even if it could be said that appellants have the legal capacity to raise this point, little need be said in connection therewith. The preponderance of the evidence supports the Chancellor’s finding that Mrs. Hickey is of sound mind and can execute a valid deed and that no undue influence was used.

Affirmed.


author: Jim Johnson, Associate Justice. Paul Ward, Associate Justice

text:
    Townsend v. Lowrey.
    5-3300
    382 S. W. 2d 1
    Opinion delivered September 21, 1964.

      Van Chapman and Jack Holt, for appellant.

      Lightle S Tedder, for appellant.
   Jim Johnson, Associate Justice.

This appeal arises from child custody proceedings. On Agust 12, 1957, appellant Vestal Townsend obtained a divorce from appellee Barbara Helen Townsend (now Lowrey) in White Chancery Court. In the divorce decree the Chancellor awarded appellant “the temporary care and custody of Alicia Lynn Townsend, infant child of the parties” and specifically retained jurisdiction for the purpose of making further orders relative to custody. On December 8, 1961, appellee (now a Califoimia resident) filed a petition for change of custody, following which the Chancellor obtained reports from the Welfare Departments of Arkansas and California about the living conditions and environments of both parents. After a hearing on May 14, 1962, the Chancellor granted custody of the little girl to her mother (appellee) for the summer months, permitting appellee to take her to California and requiring a $500.00 bond to guarantee the child’s return to White County by August 15, 1962. On April 26, 1963, appellee again petitioned for change of custody, praying that she be granted her daughter’s custody during the school year, giving appellant custody during the summer months. After another hearing the Chancellor on July 8, 1963, stating that “it now appears that it would be for the best interest of said child that said custody provisions be revised,” granted appellee custody of the child during the school year in California and appellant custody in Arkansas during the-summer. From this second order comes this appeal.

For reversal appellant urges that (1) there was no evidence upon which to substantiate the court’s finding that the appellee should have custody of the child during the school years, and (2) that the trial court abused its discretion in changing custody of the child.

We have no doubt of appellant’s love for his daughter. Testimony reveals that appellant cared for her as a baby while appellee worked, before the parties separated. The Arkansas Welfare Department report indicates that at a brother’s behest, he quit a pipe-line job in Michigan so that he could help his aged parents raise his daughter. Obviously his parents love their granddaughter Alicia and want her to remain with them. Appellant lives with his parents in a six-room farm home about three miles from Searcy which they rent for $15.00 a month. In addition to appellant, Alicia and the elderly parents, the family circle is completed by a divorced brother and an unmarried sister and her small daughter. Appellant shares a bedroom with his brother and Alicia shares a bedroom (which was once the front hall) with her grandparents. The home is on a recently-paved road and has electricity, telephone and butane heat although there is no running water or indoor toilet facilities. A school bus stops at the house. While appellant’s parents have little or no formal education, appellant completed fourth grade and his unmarried sister finished the ninth grade. They testified that appellant would help Alicia with her school work as long as she could and his sister would help her thereafter. At the time of the first hearing the brother and sister were working steadily and the parents were receiving Social Security, Old Age Assistance and commodities. After not working appreciably (other than playing fiddle in a band) for several years, appellant started working at Harding College as a yard man and janitor just” before the first hearing and was still so employed a year later at the second hearing. - Although appellant’s parents are members of a church, they rarely attend. The- testimony indicates that Alicia was taken to church infrequently.

The picture of appellee’s environment is not as complete; however, perusal of appellee’s testimony laid to rest our wonder that she had not sought custody sooner, when she testified that during the first two years in California there .was no money to come to Aihansas, hardly enough to [Day for food and rent, and that after her son was born he became ill with pneumonia and required long and.expensive hospitalization. Appellee and her husband are both steadily employed, have a modern home in a pleasant residential neighborhood close to schools. They own a motor boat and go camping about once a month during the summer. They belong to the Dojhinicus Methodist Church which they attend fairly regularly, as the children attend Sunday School. The testimony shows that appellee’s husband is as anxious as appellee to have Alicia’s custody and raise her with her half-brother.

On this point, it has been well stated that:

“In these matters the desire of the parent for the child, which is a natural emotion, is secondary. Children of tender years are but helpless hostages given to fortune in an environment or condition which is not of their making and in which they would be helpless indeed were it not for the conscience of Chancery.” Bounds v. Dunn, 234 Ark. 514, 353 S. W. 2d 20.

It is axiomatic that our concern, as is the Chancellor’s, must be for the welfare of the child. Child custody cases frequently wring forth an earnest coveting of Solomon’s insight in order to determine what course is in the child’s best interest. In the case at bar, the vast change in appellee’s circumstances between the divorce decree and the first temporary custody order is apparent. Appellee, who was 15 when she married appellant, and 17 when she ran off to California, has apparently matured responsibly. Not the. fact that appellee and her husband are buying a home but the fact that their furniture, car, truck, boat, motor and their son’s large hospital bills are all paid connotes a certain economic responsibility. Their son’s enrollment in nursery school and church school (and Alicia’s first attendance at school while visiting her mother) indicates that appellee is trying to create an environment of learning for her children, so necessary for well-adjusted growth in our shrinking world.

EevieAv of the entire record lends us to the conclusion that the Chancellor’s action in first granting appellee a measure of custody apparently on a trial basis and then, upon proof that such custody A\ras satisfactory and desirable, granting appellee Alicia’s custody on a more permanent basis, Avás a sensible approach to the sensitive problem of Avhat Is in this child’s best interest. This court has frequently held that “during the period of tender years, it is to- the best Interest of the child for the mother to ha\Te it.” Wimberly v. Wimberly, 202 Ark. 461, 151 S. W. 2d 87. On the record before ns, we find no abuse of the Chancellor’s discretion.

Affirmed.

Ward, J., concurs; Holt, J., not participating.

Paul Ward, Associate Justice

(concurring). In an attempt to preserve some semblance of consistency and continuity in our decisions dealing with the important and tender subject of child custody, 1 am constrained to give briefly my reasons for concurring in the majority opinion.

The prime, if not the only, point relied on by appellant in this case was the well known rule that there was no "change in conditions” to justify changing the previous order of the court giving custody (for nine months each year) to him. We have announced this rule uniformly and consistently. See Weatherton v. Taylor, 124 Ark. 579, 187 S. W. 450; Jackson v. Jackson, 151 Ark. 9, 235 S. W. 47; Hamilton v. Anderson, 176 Ark. 76, 2 S. W. 2d 673; Kirby v. Kirby, 189 Ark. 937, 75 S. W. 2d 817; Myers v. Myers, 207 Ark. 169, 179 S. W. 2d 865; Bounds v. Dunn, 234 Ark. 514; 353 S. W. 2d 20. In the Myers case the Court said, in reference to former orders' of child custody:

"... such orders cannot be changed without proof showing a change in circumstances from those existing at the time of the original order ...” (Emphasis added.)

Notwithstanding the above, the majority ignored the real point involved and chose to base their decision on a quotation lifted from the Bounds case cited above which is a beautiful eulogy on the love óf a parent for his offsjjring and the "conscience of Chancery”. The trouble with the quoted language is (a) that it lacks reason and logic when lifted out of context, and (b) when read in context it fails to support the majority opinion, (a) If love of the mother for her child is a ground for awarding her custody, then the love of its father is a ground for awarding him custody, (b) In the Bounds case the court first gave the custody of two small children to the father; in a later actioix tlxe mother sought to change custody to her. The tidal court refused to make the change axxd we affirmed, quoting this language:

“ ‘A party seeking xnodificatioxx of a divorce decree provisioxx for custody of a child on the ground of changed coxiditions bears the burden of proof of changed conditioxxs warranting a xnodificatioxx in the interest of the child.’ ”

I agree with the result reached by the majority. I do so, however, with some reluctance because, while there is some evidence of “change of coxxdition”, it is not really convincixig.