# Downey v. Toler, Judge

> Supreme Court of Arkansas · December 20, 1948 · 214 Ark. 334

URL: https://www.frixlaw.com/law-library/cases/3276530

## Case

- **Full name:** Downey v. Toler, Judge.
- **Court:** Supreme Court of Arkansas
- **Decided:** December 20, 1948
- **Citations:** 214 Ark. 334; 216 S.W.2d 60; 1948 Ark. LEXIS 510
- **Precedential status:** Published
- **Opinion:** Dissent by Millwee
- **Judges:** Mofaddin, Millwee
- **Cited by:** 10 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

Millwee, J.
(dissenting). I agree with the majority’s conclusion that Act 314 of 1939 did not repeal either the second subdivision of Ark. Stats., § 27-602 or Ark. Stats., § 34-201. Nor did it repeal the third subdivision of Ark. Stats. § 27-603. The first statute fixes the venue of “an action against a public officer for an act done by him in virtue or under color of his office, or for a neglect of official duty” in, the county where the cause of action, or some part thereof, arose. The last mentioned statute provides that “all actions against the State, and all actions against State boards, State commissioners or State officers on account of their official acts” must be brought in Pulaski county. All three statutes were adopted by the Legislature of 1868 as a part of the Civil Code.
I cannot agree that it was the intention of the lawmakers to plhce members and employees of the State Police Department in the same category with such state officials and departmental chiefs as the Governor, State Treasurer, State Revenue Commissioner or members of the State Police Commission, as the majority now holds. The effect of our decision in Moncus v. Raines, 210 Ark. 30 , 194 S. W. 2d 1 , was to modify, if not overrule, the case of Chicago, R. I. & Pac. Ry. Co. v. Bone, 203 Ark. 1067 , 160 S. W. 2d 51 , where a majority held that § 1 of Act 314, supra, was all inclusive in its terms and applied to all actions for personal injury or death. In Moncus v. Baines, supra, we held that an action for personal injuries against a city marshall must be brought under § 27-602, supra. So the action here against the city marshal of Sheridan is localized in Grant county where the cause of action arose. The result of the majority holding is that plaintiffs must split their cause of action and pursue their remedy against the city marshal in Grant county and maintain a separate suit against the state police defendants in Pulaski county. The majority attempts to justify this strained construction of these venue statutes on the authority of Leonard v. Henry, 187 Ark. 75 , 58 S. W. 2d 430 . However, it was clearly pointed ont in that case that the Legislature, intended to confine suits against the State Treasurer to. Pulaski county because he maintained his office and official residence in that county and the lawmakers were unwilling to have the records of the officers and boards mentioned in § 34-201 carried out over the state and away from the place where they should be permanently kept. The same reasoning does not apply to a member of the state police force.
Under § 11 of Act 231 of 1945 and the earlier Act 166 of 1937, the state police department is authorized to establish district headquarters in parts of the state other than the city of Little Rock. It is a matter of common knowledge that such headquarters have been established and that state policemen reside and perform their duties in various counties over the state. They maintain neither their actual nor their official residence in Pulaski county and should be amenable to the same venue law as other public officers with whom they live and serve under § 27-602, supra.
Certainly the Legislature of 1868 did not have in mind state policemen when it enacted either § 27-603 or § 34-201, supra. These statutes are clearly designed to apply to state officers who head the various departments, boards and commissions of the state government located in Pulaski county. ■
Under the majority’s interpretation of the statutes in question, a member of the state police force may hereafter commit a brutal, unwarranted and malicious assault and injury upon a citizen of Washington county in that county and the latter will be forced to come to Pulaski county to pursue his remedy against the offending officer. And this will be true even though the officer' is also a citizen and resident of the county where the cause of action arose and may also prefer that it be tried there. Both parties will be subjected to the inconvenience and expense of bringing witnesses from the county where the cause of action occurred, and could he more fairly tried, to a distant county. If it is the thinking of the majority that members of the state police force should be immune from responsibility for tortious acts committed by them under color of tbeir office, the result desired bas been substantially accomplished by the interpretation given the statutes.
Since it is my conviction that § 27-602, supra, is the governing statute, I respectfully dissent from the opinion of the majority. I am authorized to say that Justices Frank G-. Smith and R. W. Robins join in this dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3276530. Public record. Not legal advice.