*1 witnesses were terested witnesses because some appellee members of the chnrch. was witness, member a chnrch Wood,
Mr. Bill Lauck transacted deceased where the officer bank Spencer, mem- a church Mr. G. her business. William — lawyer were all such witnesses was her witness, ber gain in- them, inure to no would mature and competent They dividually, wit- under the will. were p. 243,- Am. Sec. 320. nesses. Jur. See proof making statutory method of holographic 1947, in Ark. will is found Stats. proof in case was suffi- B. 62-2117, Sub-Sec. validity v. the will. Sanders establish the cient to Abernathy, 2d 351. 253 W. 221 Ark. S. supported probating the will is action
The court’s preponderance the evidence. Judgment affirmed. Company Phillips. Motor v.
Rebsamen
appellants, similarly all themselves and others sit- question constitutionality validity Act uated, the and of — Legislature, 182 of the Acts of the 1955 75-1501 Sup. 1506 Ark. Stats. 1947 complaint allegations:
Their “. . . contains these corpora- Company, 2. Plaintiff, Rebsamen Motor is a organized existing by tion under of the laws and virtue engaged of State Arkansas. It is the business City of a Rock, motor vehicle Little dealer the it Arkansas; holds bona contract or franchise fide Company, with the Ford manufacturer of Ford Motor adequate space automobiles; maintains one the buildings in which its is conducted for the dis- business play repair of new and vehicles, and unused motor servicing storage parts of new of motor and engaged and for motor vehicles. It is also accessories servicing repairing in the cles and the motor motor vehi- businesses of and selling parts of new and accessories principal place of business is lo- Its vehicles. City Arkansas. 3. The Rock, cated of Little plaintiff, employed R. as salesman Morris, Jr., W. plaintiff, Company . . . De- Rebsamen Motor [appellees] pro- attempting are to enforce the fendants require plaintiffs which and visions of this act would persons similarly other ers and motor vehicle salesmen sas as motor vehicle deal- situated
in the Arkan- pay in that it vio- license fees. This is void Article 10; IV, Article I, lates Sections Amendment and the Fourteenth Amend- the Fifth 2; States; of the Constitution United Article ment 8, 13, 18, 21, 23; 2, 3, 7, II, Sections of Arkansas. 5. The of the State of the Constitution threatening are continue the enforcement defendants they enforcing Act. Unless are restrained from provisions plaintiffs of Act 182, the others sim- ilarly situated as motor vehicle dealers and motor vehicle irrepar- salesmen the State of Arkansas will suffer injury they adequate remedy able for no (1) law. 6. Act 182 is void because it is indefinite, vague ambiguous; (2) the license fees which are charges provisions fulfilling under its are excessive for (3) discriminatory of the act; and it is requires employees in that it franchised dealers and their pay obtain a license and a fee, but it does not re- quire non-franchised dealers to either obtain a license They a fee.” ask that the un- act be declared *3 constitutional.
Appellees’ general answer was a all ma- denial of allegations. upholding terial Trial resulted in a decree constitutionality validity re- act, all spects; police power that its enactment was within the appellants’ of Arkansas; State and dismissed complaint. appeal This followed. attempts up
Act set a commission of seven appointed by members to be one from Governor, Congressional each of the Districts, and one from the large provisions Among chairman. following: Necessity regu- are the 1. “SECTION for (cid:127) —(cid:127) Legislative finding. lation finds and declares the distribution and sale of motor vehi- vitally in the cles State of Arkansas affects the economy public of the State and the interest and the public promote public that in welfare, order to public interest and the and in the welfare, exercise of its police power, necessary regulate it is and to license motor vehicle distributors manufacturers, and dealers prevent doing Arkansas, business in order to frauds, impositions and other abuses its citizens . . . (b) Dealer’ ‘Motor Vehicle means SECTION corporation person, or firm, association, trust not ex- (c) by of this Section who sells, cluded subsection solicits the sale of new and unused motor or advertises vehi- a bona contract or franchise in and holds effect cles fide manufacturer or distributor of the or new unused with proposed motor vehicle or vehicles to be dealt in and adequate space building who maintains in the or struc- ture wherein his, its or their established business is display conducted for the of new and unused motor vehi- provides repair servicing cles and also storage parts motor vehicles and the of new and acces- (d) sories the same ‘Motor Vehicle Sales- any person employed man’ means who is aas salesman by a motor vehicle dealer whose duties include the sell- ing offering for sale of new and unused motor vehi- (e) cles. ‘Commission’ means the Arkansas Motor by (f) Vehicle Commission created this Act. ‘Manu- any person, corpora- facturer’ means firm, association, tion or trust, resident or nonresident, who manufac- vehicles, (g) tures or assembles new and unused motor any person, ‘Distributor’ or ‘Wholesaler’ means firm, corporation association, dent who in or trust, resident or nonresi- part
whole or sells or distributes new and unused motor vehicles to motor vehicle dealers, representatives, (h) who maintains distributor ‘Fac- tory Branch’ means branch office maintained person, corporation firm, association, or trust who man- ufactures or assembles motor vehicles for the sale of motor vehicles to or for distributors, the sale of motor directing vehicles motor vehicle or for dealers, *4 supervising, part, representatives, (i) in whole or similarly ‘Distributor Branch’ means a branch office by maintained a distributor or wholesaler for the same maintained, factory (j) ‘Factory a branch is Representative’ representative employed by a means a person, corporation or firm, association, trust who man- by factory or motor or vehicles, ufactures assembles a purpose making promoting for the branch, or supervising sale of its or motor or for his, vehicles, their contracting prospective or its or their or his, dealers dealers, Representative’ rep- (k) ‘Distributor means similarly employed by a distributor, resentative dis- . . .” tributor branch or wholesaler required Each member was to execute a bond of per day $5,000 and was to receive diem each re- $10.00 quired attending meetings; provided, pay that such per person. any shall not exceed annum for one $200 (d) “SECTION . . . The Commission shall appoint qualified person to serve as Executive Secre- tary pleasure at thereof, serve of the commis- pre- salary fix sion, and shall his and shall define and (f) scribe his duties ... ... At the close year each fiscal hereafter' said commission shall file with the Auditor a true and Governor and State report charges of all re- correct ceived fees and collected and during preceding year fiscal and shall the same time into the revenue fund equal per (10%) a sum ten centum State gross charges . . fees and so collected and received Licenses, July (a) 1, 1955, or after SECTION On it shall be unlawful and constitute a misdemeanor for any person, corporation or trust firm, association, engage capacity in the or as, of, business serve a motor or motor vehicle dealer, as vehicle sales- man, or or wholesaler of mo- manufacturer, distributor factory branch, branch, tor distributor or as factory representative representative, or distributor obtaining there- such, this without first license provided (c) (1) Section; ... ... as Fac- Manufacturer, Wholesaler, For each Distributor tory Dol- Branch, Branch or Distributor One Hundred ($100.00). (2) Dealer, For each Motor Vehicle lars Representative, Factory Representative or Distributor (3) ($25.00). Twenty-Five For each Motor Dollars Ve- ($5.00) .” Five Dollars Salesman, hicle grounds numerous on which the 5 sets out application may deny for a license or Commission among already granted, suspend a license revoke or “ (c) any grounds failure to com- For willful these are: any provi- provision ply Act or with of this with adopted regulation any rule or Act or with sion of this authority promulgated by under the Commission *5 (g) Being by a Manufactur- this Act vested Wholesaler, Distribu- Distributor, vehicles, er of motor agent Factory or Branch, officer, or tor Branch or representative has or who either induced thereof, other attempted any coerced or to induce or coerce Motor accept any (1) delivery To of motor Vehicle Dealer: parts any vehicle or or accessories or therefor, commodity other or commodities which shall (2) by been Motor To use Dealer; ordered said Vehicle any registration figures, or automobile or truck analysis lists competitive any likewise the use of therefrom; figures parts sales of or as a trucks, accessories, cars, accept conducting (3) of To order or business; basis ap- delivery any special features, of motor vehicle with pliances, equipment not included the list accessories or price by publicly of advertised said motor vehicles as any (4) persQn the manufacturer To order for thereof; ap- any parts, equipment, machinery, tools, accessories, whatsoever, pliances (h) Being any commodity or Distributor, Wholesaler, Manufacturer of Motor Vehicles, agent Factory Distributor Branch or Branch or officer, representative (1) or thereof, other who: Has refused having any to deliver to Dealer fran- Motor Vehicle arrangement or retail sale of chise contractual new and unused vehicles sold or distributed motor Wholesaler, such Distributor Manufacturer, Distributor, publicly any Factory vehicle, Branch or motor Branch, sixty (60) delivery, within advertised days immediate received; been after such dealer’s order shall have (2) attempted or has induced coerce, to induce or Has any any into Dealer to enter or agreement Motor Vehicle coerced, Whole- Manufacturer, Distributor, with such repre- Factory Branch saler, Distributor Branch any act unfair to or to do other sentative thereof said any by threatening franchise or con- dealer to cancel existing agreement manufacturer, such between tractual factory branch or wholesaler, distributor distributor, unfairly, (3) without due Has dealer; branch and said just regard equities said dealer without to the provocation, Motor the franchise Vehi- canceled selling a franchise or cle Dealer. The non-renewal provocation just agreement cause shall be without paragraph and shall consti- an evasion of this deemed (4) to extend Has refused cancellation; tute unfair determining privilege Dealer a Motor Vehicle *6 transportation facility the mode or maimer of available employed which said dealer desired to be used or in making him deliveries of new motor vehicles to it.”
Legislative presumed acts are to be constitutional contrary and valid until the shown, is and the burden may question constitutionality. on is those who their appellants have concluded that We that bur- met upholding den here and that the court trial erred constitutionality of Act 182. reading considering entirety
In and apparent readily that its and effect, i^ appellant, along under its terms, with his salesmen and regu- other franchised dealers and their were salesmen, required pay privilege lated license fee for the engaging selling the business of new and unused sub-, pay motor vehicles and on failure to the tax to be ject competitors prosecution charge, on a misdemeanor their while community,
in the same who are not fran- may but who deal in both new chised, along and used cars, regulated required their were not salesmen, with operate pay penal- the license fee and could without ty, though they engaged in even were the same business. police power To hold that under its could legislation, exempting enact from the tax such automo- engaged paying bile neiv and used cars from dealers requiring the same time fee, the license chised dealers in the same and at fran- community, only who deal clearly, we tax, new and unused cars to arbitrary with and in conflict think, classification 18 Article of the Constitution Assembly provides “The that: General Arkansas which privi- grant class of citizens citizen or shall not leges the same terms shall which or immunities belong equally It also contravenes all citizens.” the Constitution Amendment to the Fourteenth denying prohibits a from state United States protec- jurisdiction equal person “any within its tion of the laws.” principle equality uniformity requires
“The privilege imposed equally license taxes impartially persons pursuing on all the same avocation *7 exercising privileges, legisla- or the same . . . the may pretense not, ture under the of a license fee or tax, impose persons unequal similarly on taxes situated.” 22(a), pp. 53 C. J. Sec. S., Licenses, 533-4.
“It has . been held . . that an act or ordinance arbitrarily unreasonably is it unconstitutional if and conducting discriminates between different modes of the something same business unless there one the mode dangerous public.” which makes it more to the 53 (2), p. 22(b) C. S., J. Licenses, Sec. regulation of the of sale motor vehicles under police power prevent pro-
the state’s to fraud to and general public proper the mote a welfare, we think, subject legislative Legislature, action, the indulge however, guise regulation, may under the in of not in what arbitrary price fixing effect would be or the inter- competition. ference with lawful
This court Ex Deeds, Parte 75 Ark. 87 S. W. striking Legislature down 136 Act of 1901, the of which were similar in effect to “ Reading literally, Act 182 . said: . . here, the pronounces penalty against 'any person, it either as agent,’ having- owner, manufacturer or who, without procured through first any a license, 'shall travel over or peddle
county any lightning and or rod, sell steel range, pump, buggy, carriage clock, stove provides or either of said articles,’ but the same ' ’ apply any county. shall not resident merchant in said permits 'any In other words, resident merchant county,’ person, but said no other to ‘travel over through any peddle county or sell’ the articles named without license so to It do. therefore falls clear- ly within that of clause the Fourteenth Amendment to prohibits the Federal Constitution, from ‘any person denying jurisdiction equal within its protection of with laws,’ and is also in conflict Sec- tion of Article of State, Constitution which, provides Assembly not ‘the General shall grant privileges im- citizen or class of citizens equally terms munities which belong same shall to all citizens.’ Court Pipe Connelly Co., the United v. Union Sewer States regulations supra, prescribing [184 540], said: ‘In U. S. engaged divide those trade, for the it cannot conduct if criminals one class in trade into classes make things, allowing they another certain forbidden while do engaged trade in the same class domestic and favored thing impunity. things It with is one to do the same expenses power of taxation so as meet exert indirectly, government, build time, and at same protect up particular It is interests industries. thing quite State, for the under its different *8 power, police commerce, to enter the domain of trade or particu- against by declaring some that and discriminate jurisdiction exempt from shall be lar classes within operation making to it criminal of statute things com- with domestic trade or do certain connected legitimate not a exertion of a statute is merce. Such power no reasonable classification, rests equal arbitrary, plainly purely denies basis, is against protection dis- laws to those whom it of the ’ ” criminates. Appellees say are that to Act 182 here acts similar many in in none to be in force other states and found Prom somewhat limited search we have been valid. our any 182 in to Act similar, effect, unable to find statute any been constitu which has declared other state Appellees pointed upheld. "We to none. tional and that Nebraska has a statute simi however, found have, provisions construing Act 182 and to lar, effect, state, Court of of that statute Tilley, N. A. L. v. Neb. 289 W. R. 327, 388, 126 Nelsen provision regulatory (1939), statute “A held: 729, limiting vehicle dealer’s license for of motor issuance persons by man enfranchised new automobiles sale unlawful re motor an of new ufacturers right person adopt and follow of a on the striction pursuit, Four- and contravenes the lawful industrial teenth Amendment to the Federal Constitution and the providing per- sections of the State Constitution that all equal rights, guaranteeing process sons should have due prohibiting grant special privileges of law, or im- forbidding munities, discrimination between citizens of the United States.” point (d) We further out sub-division Section ‘‘ provides; appoint
3 above which The commission shall person qualified Secretary to serve as Executive there- pleasure of, serve commission, shall salary, attempt clearly fix his by etc.” ... Legislature delegate power to the commis- power delegate Legislature sion. This is denied the under Article 16, of our Constitution which provides: Assembly “The General shall fix the salaries greater and fees all in the State, officers and no salary by paid or fee than that fixed law shall be any employee person, officer, or other or at rate par other than value; and the number and salaries of employees departments the clerks and of the different State shall fixed law.” our See recent Gipson Crawfis, case v. Ark. 286 S. 2dW.
Considering entirety, finding this Act 182 in its provisions, of its all material which were intended to purposes, provisions effectuate its to contravene of both *9 our and Constitutions, Federal we hold it uncon- Accordingly, stitutional and invalid. the decree is re- versed the cause and remanded with directions to enter opinion. a decree consistent with this The and Chief Justice Mr. Justice dissent. Ward participating. George Justice Smith not Rose (dissenting). Associate Justice find Paul I Ward, opinion myself agree majority unable to with the herein relating Act 182 of to the distribution holds major- sale of motor vehicles, and unconstitutional. The ity opinion, assigns Ias understand three it, reasons or grounds They (a) conclusion the reached. are: Act arbitrary 182 makes an and therefore an unconstitutional (b) A classification; similar act was held unconstitutional (c) Act 182 at- Nebraska, and; the Court tempts illegal delegation legislative power to tbe au grounds I Commission. shall the above reasons or discuss in the order named.
(a) majority find that has no right require a a fran- constitutional fee from license chised dealer who deals in new and and allow cars, used a used car dealer new and without hav- to sell used cars pay any ing to fee. It that this view license to me seems purpose entirely the main and main overlooks features lengthy Act 182. and much of said The act itself is rather up setting of it is devoted and the Commis- definitions regulations governing and the rules it. It would sion and purpose provision of the act serve no useful out set any length I act its because, as understand purpose, gist around the real of the enactment revolves portion 5(g)(1). act is de- In Section effect this prevent manufacturing company signed to an automobile accept forcing a from local dealer in this state to or can dis- orders, for more than the dealer automobiles pose price required them. at the he to sell at which very plain only from common It knowledge from the act but not just could exist
that described this situation only dealers. between manufacturer and authorized its Consequently makes no occasion, act there is no and the “bootleg” attempt, regulate new car used dealers or me fact it clear car dealers. As a matter of seems provisions are en- if act is allowed to stand “bootleg” in new dealers there more forced will be no cars. majority opinion has discussed designed eliminate, which it is evils attempting point to show
and therefore there is no regulations necessity here in- of the kind there is a economy protection volved for public act. 1 of the welfare as forth set *10 many laws have enacted The fact other states that unchallenged gone very 182 and some have Act similar'to why years this court itself a or. more is reason for 15
157 clearly appears should not strike down this act unless it unconstitutional. The law is well settled acts that presumed are to be constitutional and every reasonable intendment to that end in- should be dulged. following containing states have enactments meaning wording
same and almost the same as Section 5(g)(1) referred to above, see: Wisconsin Stats., 1953, Chapter seq. particularly subparagraph 218.01et page at 2771; West’s Louisiana Annotated, Stats. 18, Yol. 32:1255(8) (b) page Sec. at 100; Colorado Rev. Stats. 13-11-14-(9)(a), page 1953, Section at 202; Code Vir- ginia, Chapter 46-534(1) 7, Yol. Article at 7, 3, Section page Chapter 64(5); 171; Stats., Florida 320, Section 59-1714(g)(1); Tennessee Code Annotated, 10, Yol. Sec. (1) page 565(g) 47 Oklahoma Stats. at Annotated, Chapter 386, and; Public 1949-50, Laws of Rhode Island 2(5), page My 2595,Article VIII, Section at 1255. limited investigation reveals that several other have laws states purpose somewhat similar in Act A of which 182. few Mississippi. Michigan, are South Iowa, Dakota, Ohio regulatory While some acts other states years been in force for more than 15 no decision has my been called to attention I and have been unable to find directly passed upon constitutionality
one which has of the main features of Act 182. In the case of Kuhl Motor Co. v. Co., Ford Motor 2d Wis. 71 N. W. upheld appellee’s right 420, the Court to cancel appellant. a contract with dealer, It did so ground giving right that the contract of cancellation passed, was entered into before the Motor Vehicle Act was provision which act had the same is Act length The Motor Vehicle Act and there was discussed every indication that the Court considered Wisconsin impair the but not think it constitutional, did should existing judges contract. dissented on One point judge suggested above mentioned but no act was unconstitutional to future contracts. as quote
(b) majority from the a headnote case Tilley, (1939), N. Nelson, et al. v. 137 Neb. 289 W. *11 leaving impression, perhaps, the that the' Court an like has held unconstitutional act the one Nebraska reading A deci- here consideration. careful under impression. justifies no such It is true sion that case language same that the Nebraska statute there particularly as 182 and referred to that found Act as significant may 5(g)(1) be that noted above. If part fault with found no this the Nebraska Court objections, did as shown act. The court however find page language found in the which is not to certain only selling language in Act 182. That limited dealer to specified. automobile the kind of an that his license (c) majority opinion lan- The concludes that delegation guage 3(d) unlawful in Section constitutes an pay employ legislative power to Commission expense help. secretary necessary clerical paid provided help for in the out fees this be money attempt expend without an state act, and is not appropriation. procedure all unusual. an is not at Such Licensing Board created the When provided “The in Ark. 71-706 § Contractors it Stats. employ empowered an Assistant Board be further shall salary exceed Secretary shall . and whose per year.” regulating brok- real estate In the act $1,800 (f) provided, 71-603 Ark. § ers and it is Stats. salesmen inci- all fees the Board shall from collected day expenses including dent not to exceed $5.00 legislation could examiner. Other instances of similar holding I cited know of court no decision pro- expenses payment of them unconstitutional. merely and neces- vided for in Act 182 are incidental operation sary for the effective of the Commission holding provisions way our violate it creates. These no Gipson 336, relied 286 W. 2d v. 225Ark. S. Crawfis, by majority. on joins Seamsteb,
Chief in this dissent. Justice