Sager v. Hibbard

G-rifein Smith, C. J.

A permanent record book in the office of the clerk of Arkansas county, at DeWitt, shows that Initiative Act No. 3 was proposed by petition filed September 4,1940. Its title is: “An Act to prohibit' stock from.running at large in Arkansas county and to fix the penalty therefor and for the protection of crops and the lives of the people of Arkansas county.” The election commissioners certified to having duly canvassed returns from the election held November 5,1940, and that “Arkansas County Act No. 3 received the majority of the votes cast at said election and was duly adopted.”

H. P. Hibbard and J. E. Brinton, on behalf of themselves and all other interested persons, named John Sager, M. 0. Black, and Park Eldridge defendants in an action in chancery court wherein validity of the Act was challenged. Prayer of the complaint was that enforcement be restrained and that the Act be declared invalid. The proceeding was docketed March 26, 1941, as Cause No. 3880. Concurrently J. F. Byers made Park Eldridge a defendant in Cause No. 3881. Invalidity of the Act was alleged as ground for enjoining Eldridge from disposing of livestock unlawfully impounded.

A temporary restraining order was issued, conditioned upon execution of bond for $250 in each case. Byers executed the bond required of him, but Hibbard and Brinton did not. In Cause No. 3880 the restraining order was issued in vacation, without notice. Proof offered was the verified complaint.

May 26 Black and Sager filed separate demurrers and motions to vacate. '

When court convened June 30 the separate demurrer of Sager and other defendants, and the separate demurrer of Black, were overruled. Separate motions to dissolve the restraining* orders were then denied. The causes were consolidated.

The order recites that the defendants offered to present evidence in support of contentions that the injunctions should be dissolved. . The court held the view that decisions on the motions would require a full hearing* on merits of the consolidated causes, and “such decision would be a final determination *of the whole cause.” The following* paragraph appears in the order: “The court finds that the plaintiffs in the consolidated cause, and the defendant in Cause No. 3881, refuse to agree to an immediate trial of this cause, ore tenus; and it is, therefore, ordered that the trial shall proceed in the usual course.”

Eldridge moved to have his case (No. 3881) consolidated with No. 3880. The defendants in No. 3880 objected.

In the complaint filed March 25, 1941, in Cause No. 3880, forty-six reasons were urged against validity of Act No. 3.

It will be noted that the appeal is from an interlocutory decree refusing to vacate a temporary restraining order.

Act 355, approved March 25, 1937 (Pope’s Digest, § 7507) gives a right of appeal, provided application is made within thirty days from entry of the order or decree complained of. The record in this case was filed July 28, which was within the prescribed time. In the emergency clause of Act 355, the General Assembly found that the right of appeal from an interlocutory order was necessary “for the protection of litigants and for the speedy administration of justice.”

The Arkansas County Act was initiated under authority of Amendment No. 7 to the Constitution. To facilitate purposes of the amendment, an enabling act was passed in 1935. It was approved January 31, and appears as §§ 13296 and 13307 of Pope’s Digest. Exhibits attached to the motion to dissolve show that'jurisdictional • requirements were met, and from this record, prima facie, the Act was legally adopted.

The restraining order is dissolved. The causes, however, are remanded. Permission is granted appellees to present any admissible evidence tending to overcome the presumptive verity which attaches to the records referred to in appellants’ brief which shows that jurisdictional requirements were met in respect of initiation of the act. No further injunctions are to issue unless want of jurisdictional requirements is shown.