{
  "id": 8718278,
  "name": "Jimmy SMITH, Administrator of The Estate of James Albert SMITH, d/b/a CRESCENT LIQUOR STORE, and ALCOHOLIC BEVERAGE CONTROL BOARD v. RIDGEVIEW BAPTIST CHURCH, Inc.",
  "name_abbreviation": "Smith v. Ridgeview Baptist Church, Inc.",
  "decision_date": "1974-10-21",
  "docket_number": "74-120",
  "first_page": "139",
  "last_page": "143",
  "citations": [
    {
      "type": "official",
      "cite": "257 Ark. 139"
    },
    {
      "type": "parallel",
      "cite": "514 S.W.2d 717"
    }
  ],
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    "id": 8808,
    "name": "Arkansas Supreme Court"
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      "cite": "213 Ark. 298",
      "category": "reporters:state",
      "reporter": "Ark.",
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    {
      "cite": "213 Ark. 321",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1467029
      ],
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      "year": 1948,
      "opinion_index": 0,
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    {
      "cite": "202 Ark. 956",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1449855
      ],
      "weight": 2,
      "year": 1941,
      "opinion_index": 0,
      "case_paths": [
        "/ark/202/0956-01"
      ]
    },
    {
      "cite": "243 Ark. 895",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        8724839
      ],
      "weight": 2,
      "year": 1968,
      "opinion_index": 0,
      "case_paths": [
        "/ark/243/0895-01"
      ]
    },
    {
      "cite": "198 Ark. 830",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1459760
      ],
      "weight": 4,
      "year": 1939,
      "opinion_index": 0,
      "case_paths": [
        "/ark/198/0830-01"
      ]
    }
  ],
  "analysis": {
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  "last_updated": "2023-07-14T15:16:07.797047+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Harris, C.J., dissents."
    ],
    "parties": [
      "Jimmy SMITH, Administrator of The Estate of James Albert SMITH, d/b/a CRESCENT LIQUOR STORE, and ALCOHOLIC BEVERAGE CONTROL BOARD v. RIDGEVIEW BAPTIST CHURCH, Inc."
    ],
    "opinions": [
      {
        "text": "Frank Holt, Justice.\nThe appellant Alcoholic Beverage Control Board granted appellant Smith\u2019s petition to transfer a retail liquor license to within 200 yards of appellee church. The trial court reversed the Board\u2019s action pursuant to Ark. Stat. Ann. \u00a7 48-310 (Repl. 1964) which, in pertinent part, reads:\nNo new permit shall be issued for the location of a business within two hundred (200) yards of any church\nAppellants assert for reversal that this statute \u00a7 48-310 (\u00a7 2 of Act 352 of 1939) was illegally enacted by the legislature. Therefore, the appellant Board\u2019s \u201cRegulation #124\u201d (as authorized by Ark. Stat. Ann. \u00a7 48-203 [c] [Repl. 1964]), which requires the retail outlet to be only in excess of 100 yards (and not 200 yards) from church property, is controlling as to the required distance. Appellants rely upon Matthews v. Bailey, Governor, 198 Ark. 830, 131 S.W. 2d 425 (1939), to the effect that Act 352 is invalid. The appellee, however, argues that Matthews is not the latest expression on the validity of the Acts enacted in 1939 and that decision is no longer authoritative or binding. We agree with the appellants that \u00a7 48-310 is invalid.\nOn January 4, 1939, the governor appointed the Honorable Paul Gutensohn to fill a vacancy in the Arkansas State Senate. This procedure, however,'was in direct conflict with a mandate by the electorate as reflected by Amendment 29, \u00a7 1, Ark. Const. (1874). Two months previous to the appointment this constitutional Amendment was enacted and in pertinent part reads: \u201cVacancies in the office of **** the general assembly **** shall [not] be filled by the governor.\u201d Subsequent to this obviously invalid appointment, the senate enacted Act 352 of 1939 (\u00a7 48-310) by a vote of 18 to 11. It is stipulated that Gutensohn\u2019s vote was one of the 18. Therefore, without his vote the Act would not have received the necessary majority vote of the senate as is required by Art. 5, \u00a7 2, Ark. Const. (1874). Now, after approximately 36 years, the validity of this particular Act is squarely presented for the first time by this appeal. Bell v. Adams, 243 Ark. 895, 422 S.W. 2d 691 (1968). However, we are not without precedent as to the validity of a legislative act voted upon by Gutensohn during the 1939 session. In Matthews, supra, the issue was whether the emergency clause of Act 4 of 1939 was validly adopted. Gutensohn\u2019s vote constituted the required majority. We held that he was neither a de jure nor de facto senator. We said:\nIt will be conceded that the governor has not the power to appoint members of the Legislature, and has never had. As an express condemnation of the policy of appointing, Amendment No. 29 to the Constitution was adopted November 8, 1938, and became effective thirty days thereafter.\nIn determining Gutensohn was not a de facto official, we further said:\nWe find no case of our own holding that legislation enacted by the vote of a stranger to the Senate or the House is sacrosanct.\nThere are no instances where it has been said that designation by appointment contrary to the Constitution shall have the force of election, or that the admitted right of the Senate and the House to judge of the qualifications, returns and election of members goes to the extent of nullifying the Consitution. Those elected to the General Assembly take an oath to support the Constitution, and there is no presumption that senators and representatives do not intend to adhere to the basic, law, and they do attempt to obey it.\n\u2021 \u2021 \u2021 $ The general rule is that when an official, person or body, has apparent authority to public office, and apparently exercises such authority, and the person so appointed enters on such office, and performs its duties, he will be an officer de facto, notwithstanding there was want of power to appoint in the body or person who professed to do so, or although the power was exercised in an irregular manner.\nThen we emphatically said:\nIn the instant case there was no apparent authority to appoint Gutensohn; and, although the latter served energetically and with a high degree of intelligence, the service was not that of of a senator; nor could he have been a de facto officer in view of the want of apparent authority by the appointive agency.\nIn Trussell v. Fish, 202 Ark. 956, 154 S.W. 2d 587 (1941), the county assessor appointed an ineligible deputy. We held that since the assessor had the appointive authority, although exercised improperly or ineffectively, the appointee deputy was a de facto official, citing Matthews, supra, but distinguishing it on the basis that the appointing officer there had neither actual nor apparent authority.\nAppellee vigorously asserts that Matthews was overruled either specifically or by implication in Pope v. Pope, 213 Ark. 321, 210 S.W. 2d 319 (1948). (See also Howell v. Howell; Stevens v. Stevens, 213 Ark. 298, 208 S.W. 2d 22 [1948] which followed the reasoning in Matthews with reference to dejure and de facto officials.) In Pope the issue was the validity of Act 42 of 1947 where the legislature created a division of chancery court and at the same time appointed a chancellor to serve in this division.\nThe court held in Pope and Howell-Stevens that the naming of a chancellor was unconstitutional and beyond the legislature\u2019s power. However in Pope, contrary to Howell-Stevens, we held the chancellor named by the legislature to a de jure position constituted a de facto official and, therefore, the chancellor\u2019s acts as a judge were lawful.\nWe cannot agree with appellee that Matthews, when applied to the case at bar where the pertinent facts are virtually identical, is not binding and controlling. In Matthews we said it is an invalid appointment and contrary to our constitution. In doing so we declined to give a de facto status to this appointment because there was not even \u201capparent authority\u201d for the governor to make the appointment. In fact, the appointment was specifically prohibited by a very recent amendment.\nIt is stipulated, as was said in Matthews, that although the senate is the \u201csole judge\" of the qualifications and election of its members, Ark. Const., Art 5, \u00a7 1, there was no finding by the senate that Gutensohn was a member of that body. Neither was he compensated as other members. Only by a special act of the legislature was payment provided. Furthermore, we have construed Amendment 29 as being an \u201cexpress condemnation\u201d by the people as to the practice of the governor to appoint members to the general assembly. Matthews. We are unwilling to recede from our decision in Matthews and specifically hold that it has not been overruled, either specifically or by implication, since the issue there, as here, concerned the validity of the appointment by the governor to the legislature. We unequivocally held the appointment was without apparent authority and contrary to the constitution. Therefore, the appointee\u2019s vote was that of a \u201cstranger\u201d\u201eand without a de facto basis. It is well established that the legislature is deemed cognizant of our decisions respecting statutory interpretation whenever it enacts legislation. The legislature, during the intervening 36 years since our decision in 1939, has met biennially and sometimes in extraordinary sessions. Apparently it has not considered it necessary to correct the obviously invalid 1939 enactment. To the contrary, the appellant Board has continued to exercise its legislative authority in formulating regulations such as the pertinent one in the case at bar. Regulaion 124 as authorized b.y \u00a7 48-203 (c).\nIt follows that it becomes unnecessary to discuss appellant\u2019s other contention that the trial court had no jurisdiction in that appellee did not comply with the terms of the Administrative Procedure Act.\nReversed and remanded.\nHarris, C.J., dissents.",
        "type": "majority",
        "author": "Frank Holt, Justice."
      }
    ],
    "attorneys": [
      "Murphy, Carlisle & Taylor, for appellants.",
      "Bob I. Mayes and Truman H. Smith, for appellee."
    ],
    "corrections": "",
    "head_matter": "Jimmy SMITH, Administrator of The Estate of James Albert SMITH, d/b/a CRESCENT LIQUOR STORE, and ALCOHOLIC BEVERAGE CONTROL BOARD v. RIDGEVIEW BAPTIST CHURCH, Inc.\n74-120\n514 S.W. 2d 717\nOpinion delivered October 21, 1974\nMurphy, Carlisle & Taylor, for appellants.\nBob I. Mayes and Truman H. Smith, for appellee."
  },
  "file_name": "0139-01",
  "first_page_order": 163,
  "last_page_order": 167
}