author: PER CURIAM.

text:
    Glenn H. KOTHMANN, Relator, v. John A. DANIELS, Respondent.
    No. 14473.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 30, 1965.

      Maverick, Tynan & Gochman, San Antonio, for relator.
    John A. Daniels, James L. M. Miller, San Antonio, for respondent.
   PER CURIAM.

Relator, Glenn H. Kothmann, seeks an original writ of mandamus compelling respondent, John A. Daniels, Chairman of the Democratic Party Executive Committee of Bexar County, to accept relator’s application to have his name placed upon the official ballot of the General Primary Election of the Democratic Party, to be held May 7, 1966, as a candidate for the office of District Clerk of Bexar County.

This Court has jurisdiction of this case under Art. 1735a, Vernon’s Ann.Tex. Stats.

On December 8, 1965, Kothmann tendered to Daniels his application to have his name placed c-c; the official ballot at said primary election as a candidate for the Democratic nomination for the office of District Clerk. The application met all requirements prescribed by the Election Code, but respondent refused to accept such application because he believed the provisions of Art. Ill, § 18, of the Texas Constitution, Vernon’s Ann.St., prevented relator from being a candidate for the office of District Clerk.

Art. Ill, § 18, of the State Constitution provides, in part: “No Senator or Representative shall, during the term for which he may be elected, be eligible to any civil office of profit under this State, which shall have been created, or the emoluments of which may have been increased during such term; * *

Kothmann is presently a member of the House of Representatives of the State of Texas, having been elected for a term which, under Art. Ill, § 4, of the Constitution, will expire on election day, November 8, 1966. During Kothmann’s present term, the Legislature enacted into law House Bill 629 (Art. 3917b, Vernon’s Ann. Civ.Stats.), which authorized the Commissioners’ Court of Bexar County to increase the salary of the District Clerk, the office which Kothmann seeks, to $15,000.00 per annum. For the purposes of this opinion, we will assume, without deciding, that the effect of such statute was to increase the emoluments of the office of District Clerk, a civil office of profit.

The term of the office which Kothmann seeks will begin on January 1, 1967, almost two months after the expiration of Koth-mann’s term as a member of the House of Representatives. Art. 17, Vernon’s Ann. Civ.Stats.

The question which we must decide is whether the word “eligible,” as used in the Constitution, refers to the time of a person’s election to office, or to the time when he assumes the duties of the office.

Where, as in the case of the constitutional provision with which we are concerned, no time is specified for the existence of conditions of eligibility, the American courts are in disagreement as to the time when such conditions must exist in order to satisfy the constitutional requirements. One line of authority, construing the word “eligible” to mean “capable of being chosen,” adopts the view that the required eligibility must exist at the time of the election. The opposing view, which appears to be followed by the majority of American courts, construes the word “eligible” as referring to the capacity of holding office, so that the constitutional requirement is satisfied if the required eligibility exists at the time of the commencement of the term of office. Under this view, lack of eligibility at the time of election is immaterial. Anno. 88 A.L.R. 812; 143 A.L.R. 1026.

We are satisfied that, at least where the disqualification involved is of such a nature that its continuation or termination is not within the control of the person seeking office, the better reasoning supports the proposition that where the word “eligible” is used in connection with qualification for office, and there are no explanatory words indicating that such word is used with reference to the time of election, it has reference to the qualification to hold office, rather than the qualification to be elected to office. Here, whether Kothmann desires it or not, the disqualL fication imposed on him by the constitutional provision in question will necessarily end before the commencement of the term of the office which he seeks. We need not fear the creation of a situation where the voters, at the time they cast their ballots, will not know whether they will be successful in filling the office of district clerk or not. The effectiveness of the election will not depend on any future action of Kothmann, should he be the successful candidate.

While the Texas Courts have never passed on this exact question, our conclusion that Kothmann has a right to appear on the ballot as a candidate for nomination to the office of District Clerk finds support in previous decisions of our Supreme Court. Constitutional or statutory provisions which restrict the right to hold public office should be strictly construed against ineligibility. Willis v. Potts, 377 S.W.2d 622 (Tex.1964). In Kirk v. Gordon, 376 S.W.2d 560 (Tex.1964), our Supreme Court, in construing Art. Ill, § 19, of the State Constitution, which declares that certain officers shall not “be eligible to the Legislature” during the term for which they are elected, said, in holding that a district attorney could not be a candidate for the House of Representatives: “It is the fact that the term of office of district attorney to which he was elected conflicts with the term of office of members of the House of Representatives which controls.” Such a statement implies that, had the term of office of district attorney expired before the term of office of members of the House of Representatives commenced, an incumbent district attorney would be “eligible to the Legislature” even though the election for the legislative post were held before the expiration of his term as district attorney. See also Lee v. Daniels, 377 S.W.2d 618 (Tex.1964).

Our conclusion is further supported by the fact that the framers of the Texas Constitution of 1876, when they intended that the conditions of eligibility must exist as of the date of the election, expressed such intention in clear and plain language. Thus, Art. V, § 2, which provides that no person “shall be eligible to the office of Chief Justice or Associate Justice of the Supreme Court” unless he possesses certain qualifications, explicitly recites that the candidate must possess such qualifications “at the time of his election.” See Purcell v. Lindsay, 158 Tex. 541, 314 S.W.2d 383 (1955).

The petition for mandamus is granted, but the writ of mandamus will not be issued by the Clerk of this Court unless respondent, John A. Daniels, refuses to accept relator’s application after this judgment becomes final.

In view of the nearness of the deadline for filing applications for places on the ballot at the Democratic Primary Election, any motion for rehearing in this case must be filed not later than January 3, 1966.


source: Caselaw Access Project

license: Public Domain

text:
    CITY OF ROMA, Texas, et al., Appellants, v. F. C. GONZALEZ et al., Appellees.
    No. 14435.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 24, 1965.
    Rehearing Denied Dec. 29, 1965.

      Hill, King & McKeithan, Mission, for appellants.
    Glenn H. Ramey, Rio Grande City, for appellees.
   PER CURIAM.

This is an election contest consolidated with a validation bond suit. On January 4, 1964, the City of Roma, located in Starr County, Texas, by a vote of 236 for and 141 against, approved revenue bonds in the sum of $150,000.00, for the improvement and expansion of the water system, and by a vote of 242 for and 140 against, approved revenue bonds in the sum of $115,000.00, for the improvement and expansion of the gas system. Appellees F. C. Gonzalez and R. R. Guerra, describing themselves as “resident property owning citizens of the City of Roma, Starr County, Texas, and duly qualified electors in all elections of said city,” brought this election contest.

The trial court, after hearing evidence, held the election void, and for this reason refused to validate the bonds. The City of Roma, acting through its Mayor, J. C. Guerra, and its commissioners have prosecuted this appeal.

Appellants’ first contention is that appellees do not have such justiciable interest in the bond validation suit as to be proper parties to that suit. It is clear that under the provisions of Article 9.30 of the Texas Election Code they were proper parties to maintain the election contest, and under this record we do not find it necessary to decide whether they were proper parties to the validation suit.

The trial court filed findings of fact and conclusions of law. They were not filed within the time required by Rule 297, T.R.C.P., but inasmuch as there is no motion to strike them, they will be considered by us.

The trial court’s finding of fact No. 1 is to the effect that the stub box used at the election had an opening in its top six inches long and five/eighths of an inch wide, when it should have been only one/sixteenth of an inch wide and two and one/fourth inches long as is provided by Article 8.15 of the Election Code V.A.T.S. The trial court concluded that this provision of the election law is mandatory, and that its violation by the election official rendered the election void. We do not agree. The general rule is that the performance of duties placed upon the election officials are directory, unless made mandatory by statute, while those placed upon the voters are mandatory. Davis v. Walcott, Tex.Civ.App., 96 S.W.2d 817; McCrary on Elections (4th Ed.) § 724. Here it was clearly the duty of the city officials to furnish a stub box with an opening in its top of %6th of an inch wide and 2)4 inches long, Art. 7.13, but the violation of this directory duty by city officials, being something beyond the control of the voter, should not invalidate his vote. The voter had no choice but to place his stub in the only stub box furnished him.

In Minthorn v. Hale, Tex.Civ.App., 372 S.W.2d 752, an election contest very similar to the one we have here, the Court said:

“It has been said many times by our courts that the object of every popular election is to ascertain the will of the qualified electors in the area to be affected thereby upon the issue or issues submitted to them.
“Our courts have also said, a number of times, that statutory enactments concerning elections must be strictly enforced to prevent fraud, but liberally construed in order to ascertain and effectuate the will of the voters. Turner v. Teller, Tex.Civ.App., 275 S.W. 115.
“The rule is that statutes regulating the manner of holding an election are merely directory, and a departure from their provisions will not, ordinarily, invalidate an election, unless such departure, or such irregularity have affected or changed the result of the election. Hill v. Smithville Independent School District, Tex.Comm.App., 251 S.W. 209.
“There is no evidence in this case that fraud, or misconduct or the irregularity complained of affected the result of the election.”

The size of the opening in the stub box should not render an election void if it is otherwise valid.

The trial court’s finding No. 2, is as follows :

“2. The Notices of Election given in connection with said election were misleading and incomplete in that though said Notices stated the said revenue bonds were for the purpose of improving and extending said City’s Waterworks System and Gas System said Notices did not state that said Systems were to be extended beyond the city limits of the City of Roma to supply water and gas to non-residents of the City of Roma and the Court finds it was the principal purpose of said proposed bond issue to extend water lines and gas lines of the City of Roma to communities lying from four to six miles outside the City Limits of the City of Roma.”

The purposes stated in the notices were legal purposes and were sufficient. The fact that the Mayor and Commissioners of the City of Roma may have had in mind the spending of the money derived from the bonds for a purpose that might be unlawful, did not render the election void. Nalle v. City of Austin, 85 Tex. 520, 22 S.W. 668; Texsan Service Co. v. City of Nixon, Tex.Civ.App., 158 S.W.2d 88.

In Roberts v. Hall, Tex.Civ.App., 167 S.W.2d 621, the Court said:

“It is the law that questions submitted to the voters for determination must be ascertained from the official orders and notices and not from such promises, either oral or written, as are here alleged and relied on.”

The trial court’s findings Nos. 3 to 5 are as follows:

“3. The election judges, clerks and supervisors and other election officials were all members and supporters of a political party operating in the City of Roma and throughout Starr County known as the 'Old Party’ and there is another political party operating in the City of Roma and throughout Starr County known as the ‘New Party’ which is opposed to and in vigorous contention with the said ‘Old Party’, and two said political parties have vigorously opposed each other for many years, and that the members of the City Commission of the City of Roma are all supporters of and adherents to the said ‘Old Party’ in particular Mayor J. C. Guerra who is the leader of the said ‘Old Party’, and said City Commission and Mayor J. C. Guerra know and are well acquainted with their political opponents in said ‘New Party’ and it was entirely practicable for said City Commission and Mayor J. C. Guerra to appoint members and supporters of the ‘New Party’ as watchers and supervisors at said election but failed and refused to do so although said Mayor J. C. Guerra orally agreed two days before said election to appoint watchers or supervisors representing Contestants in this Election Contest at said election. (No effort was made by appellees to comply with the provisions of Art. 3.06, relating to the appointment of election supervisors.)
“4. A full and complete poll list showing the names of all persons who voted in and cast ballots in said election was not put in the election boxes with other election materials, the first two pages of said poll list containing a total of 199 names was put in the election boxes but there were a total of 383 ballots counted in said election and there were therefore 183 names of alleged voters which were not on the poll list deposited in the election boxes.
“5. The box used in said election as a stub box was sealed by the Deputy District Clerk of Starr County before said election so that said box could not be opened without parting said seal but that when said box was returned to the District Clerk’s office on the night of January 4, 1964 by the election officials under an impoundment by this Court said seal had been parted and pasted back in a different manner than said Deputy District Clerk had originally pasted it when she sealed said box and said seal was so placed that it was no longer necessary to part the seal in order to open the box, I therefore find that between the time the said Deputy District Clerk sealed said box before the election and the time it was returned to the District Clerk’s office following the election some person or persons unknown had parted said Clerk’s seal, opened said box and pasted said seal back together.”

There is no pleading or evidence of any fraud affecting the result of the election. All of the findings relate to violations of duties performed by the election officials, none of them relate to matters within the. control of the voters, and are directory only, and their violation under all of the facts here are insufficient to render the election void. Davis v. Walcott, 96 S.W.2d 817.

The sixth finding of fact by the trial court, is similar to finding No. 2, and is governed by what is said above in reference to that finding.

Findings Nos. 7 and 8 are as follows:

“7. The tax levied by the City of Roma in January, 1963 was the first tax levied by the City of Roma, that the City of Roma had no tax roll at the time of this election on January 4, 1964 but had only a tax receipt book which the Tax Assessor-Collector of the City of Roma did not prepare and did not supervise its preparation and had no connection of any kind with its preparation, and that said tax receipt hook was not completed until November, 1963 and said tax receipt hook was used by election officials to determine eligibility of voters in said election as to their qualification of having their name on the tax rolls of the City.
“8. The Tax Assessor-Collector of the City of Roma did not supply to the election officers a poll list showing the names of qualified voters in and for said election.”

The situation as stated in these two findings is similar to the facts in Hanson v. Jordan, 145 Tex. 320, 198 S.W.2d 262. Justice Brewster, speaking for the Supreme Court, after stating that the purpose of Art. VI, Sec. 3a, Constitution of the State of Texas, limiting voters at a bond election to voters who had duly rendered their property for taxes, was to induce owners of property to place it upon the tax rolls and become liable for its pro rata share of the taxes levied and assessed by the municipality, declared the law to be as follows: “We cannot see how this purpose of the people in adopting the amendment under consideration was in any manner violated in the bond election held by the City of Cleveland. The certificate says there was no fraud; that ‘the voters at such election were otherwise qualified.’ In other words, each voter at the election was a property owner, and the only reason he had not rendered his property for taxes was the very sufficient one that there were no taxes to pay. To hold that a voter in that situation could not legally cast his ballot would be but to punish a citizen who has been guilty of no dereliction or omission whatever. It would amount to a disfranchisement of the entire property-owning citizenship of Cleveland because for a decade that city very commendably levied no taxes when no taxes were necessary. It would mean that Cleveland cannot now pave its streets or make sewer improvements only because it has practiced frugality for ten years. We do not believe the voters of this state had any such intendment when they adopted Art. VI, Sec. 3a, supra. To hold the election in this case invalid, under the facts stated, would accomplish no good; it would remedy no evil.”

Inasmuch as the City of Roma did not have an assessment roll, a copy of same could not be furnished by the tax assessor, and the election judges correctly allowed the voters to vote, who were otherwise quali - fied, even though they had not duly rendered their property for taxation purposes.

Art. 9.15, Texas Election Code, provides as follows:

“If it appears on the trial of any contest provided for in Section 134 (art. 9.06) that it is impossible to ascertain the true result of the election as to the office about which the contest is made, either from the returns of the election or from any evidence within reach or from the returns considered in connection with other evidence, or should it appear from the evidence that such a number of legal voters were, by the officers or managers of the election, denied the privilege of voting as, had they been allowed to vote, would have materially changed the result, the court shall adjudge such election void, and direct the proper officers to order another election to fill said office; which election shall be ordered and held and returns thereof made in all respects as required by the general election laws of the State.”

In Stafford v. Stegle, Tex.Civ.App,. 271 S.W.2d 833, this Court said:

“While those charged with conducting elections should use every precaution possible to see that elections are conducted strictly in accordance with the provisions of the Election Code, nevertheless, after an election has been held and it appears that it has been fairly conducted and the result correctly declared, and there were no charges of fraud, misconduct or illegality, the entire election will not he set aside for irregularities in the manner of conducting the election, unless the statutes governing such matters state that the election must he vitiated. It appears here that the result would have been exactly the same even if the irregularities complained of by appellants had not occurred. There was no evidence which indicates anything to the contrary.”

The above statement applies here.

The judgment of the trial court is reversed and judgment here rendered declaring the election valid and the bonds validated.

Reversed and rendered.


author: GRISSOM, Chief Justice.

text:
    HOUSTON TYPOGRAPHICAL UNION NUMBER 87, Appellant, v. HOUSTON CHRONICLE PUBLISHING COMPANY et al., Appellees.
    No. 3996.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 12, 1965.
    Rehearing Denied Dec. 17, 1965.
    Bliss Daffan, Houston, for appellant.
    Butler, Binion, Rice & Cook, Houston, James Crowther, Houston, Liddell, Austin, Dawson & Sapp, Houston, William Robert Brown, Houston, for appellees.
   GRISSOM, Chief Justice.

Houston Typographical Union Number 87 sued the Houston Chronicle Publishing Company et al. The plaintiff asked the court to construe and enforce an award of a board of arbitration so that reproduction of advertising' placed with said newspapers by a local firm through an advertising agency must be reproduced by the union members in the composing room of said newspapers. The court sustained the publishing companies’ motion, dismissed the jury and rendered judgment for the defendants. It construed said award to exempt such advertising from reproduction. The Union has appealed.

We are first confronted with the contention of the Chronicle that the Union’s points cannot be considered because they were not presented in its motion for a new trial. Placing a liberal interpretation upon such motion and points, in conformity with the spirit of the Supreme Court’s decisions in such cases as Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478, 482, we have concluded that the Union has presented a point to the effect that the court erred in construing the award of the board to exclude from the requirement of reproduction advertising placed by local businesses through an advertising agency. We think the award does not exclude from reproduction advertising placed by local concerns through an advertising agency and we reverse the judgment of the trial court and render judgment for the Union that reproduction thereof is required.

The following portions of a contract between the Union and the Publishing Companies were deemed relevant by the arbitration board and were construed by it as hereinafter shown.

“(1) Sec. 25. National (general) advertisements, plates and plate supplement matter, printed supplements, type, plates and/or matrices, other than local advertisements are exempt from reproduction.
(2) Local advertisements not produced under the jurisdiction of Houston Typographical Union No. 87 in shops employing its members are subject to reproduction and must be reset as nearly like the original as the equipment of the office will permit, assembled and proofread.
* * *
(4) Local advertisements produced under the jurisdiction of Houston Typographical Union No. 87 in shops employing its members shall be reproduced as above.
# * *
(6) The addition or insertion of a name or names and/or address or addresses, and/or store slogans, phone numbers, store house, tax lines, or matter of a similar nature, to any national (general) advertisements or any such by general advertisers having stores in several states, does not make it a local advertisement nor require its reproduction.
(7) The attached list of advertising is not subject to reproduction, provided copy is prepared by the home office and sent in mat form to the local newspapers :
Bond’s Baker’s
Robert Hall Burt’s
Stein’s Chandler’s
Franklin’s Douglas Shoes
Regal Shoe Day’s Credit Clothing
Thom McAn Loftis Jewelry
Florsheim Shoe Allen Shoe Store
(10) Advertising exempt from reproduction is national advertising more particularly defined as follows:
(11) The advertising of products manufactured and sold in various localities through distributors, such as autos, tires, radios, institutional ads, etc.; the goods and services of oil companies, insurance companies, railroads (except Southern Pacific), bus companies, air lines; a brand of beer, and advertisement of a particular motion picture (when placed and paid for by producer, such as Loew’s weekly ad) ; Advertisements of Southwestern Bell Telephone Company advertising their telephone service in general and not addressed particularly or exclusively to the Houston public and similarly for the two gas companies where not identified as the Houston division or addressed to the Houston consumers or otherwise identified as a local ad.”

The issue presented the background, the contentions of the litigants and the findings of the Board were stated by it as follows:

“ISSUE NUMBER TWO
Case Background
Central in the discussion of this issue is the interpretation and application of Section 25 of the agreement between the parties. Particularly involved is the distinction between local and national (general) advertisements and the interpretation and application of the contractual provisions concerning reproduction.
On June 12, 1957, the Publishers wrote a letter to the Union as follows:
‘It has come to our attention recently that certain classes of advertisements are being reproduced in Houston Newspaper composing rooms which we do not believe the contract required to be reproduced. This is a request for a meeting of the Joint Standing Committee to discuss the matter.’
After numerous meetings, the parties were unable to resolve the issue and the matter was referred to this arbitration board for final and binding determination.
ISSUE
In the opinion of the Chairman, the issue before the Board is: What criteria should be used in distinguishing between national (general) and local advertisements for the purpose of determining compliance with the reproduction requirements of Section 25 of the Contract ?
POSITION OF THE UNION

The Union Contends:

1.That national (general) advertisements are those placed nationally by advertisers either directly, or through an agency, with the newspaper in which the ad is to appear;
2.That national (general) advertisements are those placed by national (general) advertisers, who have control of what is to appear in the advertisement and of when and how it will appear.

POSITION OF THE PUBLISHERS

The Publishers contend:

1. That a national (general) advertisement need not necessarily be placed by a national advertiser, but might be a cooperative ad, for example;
2. That advertisements of nationally advertised products received by the newspaper in matrix or plate form are national (general) advertisements even though,
(a)it has added to it the firm name and/or address, and/or phone number, and/or store slogan or the names of several firms with other identifying data,
(b) it includes prices which may either have been included in the original mat or inserted locally,
(c) it includes a coupon, which is usually inserted locally,
(d)it is included in a larger ad, other elements of which are local,
(c) it includes a coupon, which is product with additions such as those described in (a), (b), or (c) above;
3. That advertisements of chain stores sent in mat form from home offices and not prepared by a locally operated advertising department are national (general) advertisements;
4. That chain store advertising of nationally advertised products sent in mat form from their home office is national (general) advertising.

FINDINGS OF FACT AND CONCLUSIONS

1. The term ‘national’ advertising is, of course, not a new one. It has been used in the newspaper industry for a long time, and it has come to mean that type of advertising which has more than local appeal which is placed ordinarily through an ‘advertising agency’ or ‘national advertising representative’ or through both. Normally, the rate for national advertising is higher than the local rate, no doubt partly because of the commissions paid to the above-mentioned agency and representative. Virtually every daily newspaper (and most weeklies) has a ‘national advertising representative’ and usually compensates him for advertising of this type which comes to the newspaper even though it may not have come as a result of his efforts.

2. Webster’s New Collegiate Dictionary (G. & C. Merriam Co., 1956) defines on page 14, ‘advertising’ as ‘any form of public announcement intended to aid directly or indirectly in the sale of a commodity, in securing employment, etc.’ It likewise defines ‘advertisement’ as ‘a public notice, as in some public print, by poster, by samples, etc.’ It would appear that there is very little difference between the meanings of the two words, the former term being somewhat broader and referring also to other media of public announcement, for example the radio broadcast.

3. With the background of usage in the industry, the Chairman believes that the principal criterion for distinguishing between local and national newspaper advertising is the manner in which it is placed. And the Chairman believes this with full awareness of the fact that much local advertising is ‘cooperative’ advertising in which a portion of the cost (and sometimes a very large portion, indeed) is reimbursed to the local firm by a national manufacturer or distributor.

4. If the advertisement qualifies as a national (general) advertisement according to the above-mentioned criterion, the Chairman finds that it would be immaterial whether the item being advertised is a tangible ‘product’ or a ‘service’. The Chairman believes that the term ‘product’ used in paragraph 11 is a generic term rather than intended to refer only to a tangible commodity. In fact, services are specifically mentioned in this paragraph.

5. The Chairman believes that an advertisement qualifying as a national (general) advertisement by the above criterion would not be changed to a local advertisement by the addition of a price or a coupon.

6. The advertising of chain stores sent in mat form from home offices must be interpreted to be local advertising unless the advertisement is placed by the home office, either directly or through an advertising agency, or national advertising representative.

7. Even though a mat of a nationally advertised product is included in a larger ad, other elements of which are local, the ad must be considered a local advertisement. Where the ad is received through local sources from chain stores, the ad must be considered a local advertisement even though mats of nationally advertised products are used in the advertisement.

8. At the hearing, the parties placed different interpretations upon the meaning of Paragraph 7, above quoted. It will be remembered that Paragraph 7 states, ‘The attached list of advertising is not subject to reproduction, provided copy is prepared by the home office and sent in mat form to the local newspapers:’ and this is followed by the enumeration of fourteen concerns. The Publishers took the position that the concerns enumerated in the contract were meant to be examples of a type of retailer whose advertisements should be exempt from reproduction under the contract.

9. During the hearing, the Union introduced Union Exhibit ‘D’. This Exhibit ‘D’ was a list of thirty-three concerns which the publishers proposed during the 1949 negotiations should be exempt from reproduction. That fact that, of this list of thirty-three concerns, the subsequent contracts included the names of only fourteen must be given some consideration. The Chairman cannot know the circumstances which led to the shortening of this list from thirty-three to fourteen firms, but it is evident that the publisher’s proposal was not accepted and that the' ensuing contracts included only the fourteen concerns. For the Chairman to rule now that these fourteen were intended to be representative of many other concerns of that type would ‘fly in the face’ of the evidence found in Union Exhibit ‘D’. The Chairman must hold, therefore, that the parties did not intend the fourteen concerns to be typical of any others, but that in the give and take of negotiations, these fourteen concerns were placed in a separate exempt category. It would, of course, be possible for the parties themselves, through negotiations, to either expand or contract this list but it would be improper for the Chairman of the Board of Arbitration to do this.

* * H=

STATEMENT OF AWARD

Issue Number 2: — The primary criterion for determining whether an advertisement is a national (general) advertisement or a local advertisement is the manner in which it is placed. If it is placed directly by the national firm with a newspaper or is placed indirectly through the medium of an ad-vertismg agency or a national advertising representative, it is construed to be a national (general) advertisement. Under different circumstances it must be considered a local advertisement.”

We conclude that said award is not susceptible to the interpretation made by the trial court, towit: that advertising by local concerns placed with the newspaper through an advertising agency is national advertising exempt from reproduction. We think that under said award it is local advertising which is required to be reproduced. We sustain appellant’s point 1.

' Under the above holding, appellant’s other points become immaterial. However, we think that, if they can be considered, they do not manifest reversible error. The judgment is reversed and judgment is rendered for appellant to the effect that advertisements of local firms placed with ap-pellees through an advertising agency is local advertising required by said award to be reproduced.


author: BATEMAN, Justice.

text:
    CITY OF IRVING, Texas, Appellant, v. Artie Lee CASTER et al., Appellees.
    No. 16599.
    Court of Civil Appeals of Texas. Dallas.
    Nov. 26, 1965.
    Rehearing Denied Dec. 24, 1965.

      C. J. Taylor, Jr., City Atty., and John F. Boyle, Jr., Asst. City Atty., Irving, for appellant.
    McKool & McKool and Bill Jones, Dallas, for appellees.
   BATEMAN, Justice.

Our former opinion is withdrawn and the following substituted therefor.

The City of Irving, Texas acquired by eminent domain proceedings an easement fifteen feet wide across appellees’ 24-acre tract of land for water and sewer mains and other public purposes. The jury found in response to special issues that the reasonable market value of the strip in the “permanent” easement, considered as severed land, was: (1) immediately prior to the taking $1,362 and (2) immediately after the taking $340.50; that the value of the remainder of the land, exclusive of the strip taken, was: (3) immediately prior to the taking $142,638 and (4) immediately after the taking $140,106.50; and (5) that ap-pellees were entitled to $100 for the use and damages for the temporary working easement during the construction of the mains. The court rendered judgment for appellees for the following items:

Damage to easement strip $1,021.50
Damage to remainder 2,531.50
Damage for use of temporary easement 100.00
Total $3,653.00

Appellant complains only of that part of the judgment which awards to appellees $2,531.50 as damage to the remainder. The first and third points of error on appeal say there was no evidence to support that part of the verdict, and the second and fourth that the findings in response to Special Issues 3 and 4 were against the weight and preponderance of the evidence and “completely out of the range of the probative testimony.”

To show support for the findings in question appellees rely on the testimony of the appellee Artie Lee Caster, the landowner, and one Otis Davenport. It is our opinion that their testimony, weighed along with the other evidence in the case, is factually insufficient to support the findings. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

Caster testified that in his opinion the front 17 acres of his property had a value of $8,000 per acre before the taking, and that the existence of the easement would in his opinion decrease the market value of the property at least $500 per acre. However, he also testified that he was still asking $8,000 per acre for the 17 acres, that that is what he thinks it is worth, that he will not take less than that and expects to receive $8,000 per acre. He did not at any time testify that the entire remainder of his property had a market value of any certain sum of dollars, either before or after the acquisition of the easement. However, it having been stipulated that the permanent easement occupied 9,913 square feet, or .227-acre, counsel for appellees argue that by mathematical calculations based upon this testimony it is possible to interpret it as expressing an opinion that the land, exclusive of the easement strip, had a market value of from $190,000 to $207,105 before taking, and of between $178,000 and $195,000 after the taking. We do not agree with appellees, for several reasons.

First, Caster’s evaluation, as he volunteered several times to make clear, does not relate to the entire tract, less the strip taken, but only to 17 acres thereof. This can hardly be said to support a jury finding which relates to the entire remainder.

Moreover, when he said that in his opinion his property had been “damaged” $500 an acre by the easement he did not relate this figure to market value. It is no more than the type of conclusion condemned by the San Antonio Court of Civil Appeals in Tennessee Gas & Transmission Co. v. Zirjacks, Tex.Civ.App., 244 S.W.2d 837, wr. dism., where that court, speaking through Mr. Justice Norvell, said:

“One claiming damages to land must show the nature of the damage, the effect upon various portions of the tract and the relationship of the same to market value. A mere conclusion as to market value is insufficient for this purpose.”

The witness Davenport qualified as an expert real estate appraiser and testified that before the easement was taken the 9 acres fronting on Belt Line Road had a value of $8,500 an acre, or $76,500, and that the rear 14 acres had a value of $4,000 per acre, or $56,000, making a total valuation of $132,500. He further testified that in his opinion the front 9 acres were damaged $500 per acre by the taking of the easement and that no damage was done to the rear 14 acres, so that the value of the entire tract after the taking was $128,000, or $4,-500 less than the total value before the taking. We regard this testimony as being factually insufficient to support the findings in question, for the valuations given by this witness were substantially less than the values found by the jury in answer to Special Issues 3 and 4, and, therefore, cannot be said to support those findings.

The first and third points of error, being “no evidence” points, are overruled since the record is not devoid of evidence of damage to the remainder; but the second and fourth points, that the findings in response to Special Issues 3 and 4 were so against the weight and preponderance of the evidence as to be manifestly unjust, and completely out of the range of the probative testimony, are sustained. This requires that the judgment be reversed and remanded for another trial.

By its fifth point of error the appellant complains of the action of the trial court in excluding from consideration by the jury of a comparable sale which had been offered by appellant’s value witness, Mr. John Wall. While, Mr. Wall was under direct examination the details of a sale from one Pearl White and others to A. J. Rivers, were brought out and the witness testified that that property, which was in the area of the property in question, sold in November 1961 for $1,776 per acre. This was offered in support of Mr. Wall’s valuation of the remainder of the tract, both before and after the taking, at $80,940. The evidence was admitted without objection, but on cross-examination counsel for ap-pellees brought out from the witness that he had not ascertained that the sale had been a free and open sale, whereupon it was moved that the sale be excluded and the jury instructed not to consider it, which motion was sustained. In making its bill of exceptions to the exclusion of this sale appellant’s counsel asked the witness Wall if he had discussed the matter with the vendee, Mr. Rivers, and the witness testified that he had done so (apparently at a recess after the sale had been excluded) and that Mr. Rivers thought that it was a free and open sale. The witness also then testified that it was a free and open sale, that he knew it was because he talked with the purchaser, A. J. Rivers, and that he also examined the deed. Appellant then re-offered the alleged comparable sale and it was again excluded.

Appellant has not carried the burden of showing error in this ruling. No showing was made that the purchaser had any opportunity to know what pressures or urgencies the sellers may have been laboring under in making the sale. Nor was it shown what light the language of the deed may have shed on the question. Therefore, the fifth point of error is overruled.

Appellant’s sixth point complains of the exclusion from evidence of certain ordinances of the City of Irving, which were offered to counteract appellees’ contention that the value of the remainder of his land was lessened by his asserted inability to connect to the sewer line in the easement strip. A number of ordinances were offered. Some were admitted, others excluded. We are of the opinion that those admitted show a right in owners of land both in and out of the city to connect their property to available sewer mains such as that here involved. The excluded ordinances merely give in greater detail the conditions and charges incident to the making of such connections, rates, etc. If it was error to exclude them, such error was obviously harmless. Rule 434, Texas Rules of Civil Procedure. The sixth point is overruled.

Appellant’s seventh and last point of error states that the cumulative effect of all of the errors complained of in the first six points caused the rendition of an improper judgment in that they caused the jury to render an unjust verdict. In view of our disposition of the case, we need not consider this point.

Reversed and remanded.


author: CHADICK, Chief Justice.

text:
    S. NELKIN et al., Appellants, v. Christine YOUNG, Appellee.
    No. 7688.
    Court of Civil Appeals of Texas. Texarkana.
    Dec. 7, 1965.
    Rehearing Denied Dec. 28, 1965.
    M. Marvin Katz, DeLange, Hudspeth, Pitman & Katz, Houston, for appellants.
    Jerry D. Barker, Legal Aid Society, Houston, for appellee.
   CHADICK, Chief Justice.

The trial court temporarily enjoined a sale of real property according to the terms of a deed of trust. The order of the trial court is affirmed.

At the hearing proof was offered that plaintiff Christine Young, the appellee, was married to Frank Young, and she and her children were occupying the house and lot involved on April 17, 1964, when she executed a deed of trust and the note described in it. The deed of trust named L. A. Kucera as trustee and recited that the note was payable to Direct Investment Corporation. It also contains the following recital, viz:

“The herein secured note is in extension and renewal of the following notes and liens:
“1. Note dated January 15, 1955, for $5,000.00 fully described in and secured by a Deed of Trust from Christine Dismuke to F. A. Samper, Trustee, recorded in Volume 2603, Page 399 of the Mortgage Records of Harris County, Texas, assigned to Direct Investment Corporation, and on which there is a balance due of $1,134.00.
“2. Note dated April 17, 1964, for $2,921.36, executed by Christine Dis-muke, payable to the order of Direct Investment Corporation, due and payable on or before 30 days after date, fully described in and secured by a Mechanic’s and Materialman’s Lien Contract covering herein described property, dated April 17, 1964, between Christine Dismuke, as owner, and Direct Investment Corporation, as contractor, on which there is a balance due of $2,921.36.
“3. Ad valorem taxes on herein described property in the amount of $931.64.”

The trust instrument is in the record but not the note. As described, the note was for the principal sum of $5,987.00, payable in monthly installments of $80.00 each; the first installment due and payable June 1, 1964. The statement of facts shows that payment receipts were before the court and discussed by counsel and a witness, but are not a part of the record here.

Before marriage to Frank Young, the appellee was married to King Dismuke, and to such union was born eight children, four still members of her household. The marriage to Dismuke ended in divorce in 1960, the same year she married Young. While a witness, Christine Young explained that she was persuaded by the persons who procured her signature to the deed of trust and note to sign the instruments as Christine Dismuke because the real property dealt with was deeded to her in that name, and by so signing she would eliminate red tape. The initial paragraph of the deed of trust began: “I, Christine Dismuke, a widow, * * * The notary’s jurat recites that “ * * * personally appeared Christine Dismuke, a widow * * * ”. Widowhood is not elsewhere suggested by the instrument in evidence, and she was at the time of its execution actually married to Frank Young.

A husband and wife occupying and using a, homestead may not validly encumber it except for the limited purposes and in the manner prescribed by law. See Art. 16, Sec. 50, Constitution, State of Texas, Vernon’s Ann.St.; Article 5460, Texas Revised Civil Statutes 1925. But the appellants, S. Nelkin and T. Nelkin, claim the evidence shows as a matter of law that this general rule has no application in this case for two reasons. First, because Christine Young and Frank Young were permanently separated on April 17, 1964, when Christine executed the note and deed of trust. Authorities cited in support of this proposition includes Articles 4614, 4618, 4626; Vernon’s Texas Civil Statutes; Speer’s Marital Rights in Texas, Secs. 366, 553; Waggoner Bank & Trust Co. v. Warren, (1921), 111 Tex. 318, 234 S.W. 387; Harris v. Hamilton (Tex.Com.App. judg. apprvd. 1920 ) 221 S.W. 273; Davis v. Saladee (1882) 57 Tex. 326; Mabry v. Citizens’ Lumber Co., 1907, 47 Tex.Civ.App. 443, 105 S.W. 1156, (error ref.). Second, because Christine Young deceived S. Nelkin as to her true status as a married woman by executing the deed of trust in which she was described as a widow, and that S. Nelkin relied upon such recital when he acquired the note and mortgage from Direct Investment Corporation, and as a consequence Christine Young is estopped to assert the invalidity of the deed of trust lien. Authorities cited include Speer’s Marital Rights in Texas, Sec. 225; Podolnick v. Hamilton (Tex.Sp.Ct.1961), 349 S.W.2d 715; Dallas Building & Loan Ass’n. v. Patterson, (Tex.Civ.App., Ft. Worth 1932, er. ref.), 48 S.W.2d 657; Adler v. Fort Worth State Bank (Tex.Civ.App., Ft. Worth 1927, er. dism.) 297 S.W. 277; Barnes v. Archer, (Tex.Civ.App., San Antonio 1935, no writ), 77 S.W.2d 883; Bernard v. Jefferson County Investment & Building Ass’n. (1936), 128 Tex. 97,95 S.W.2d 1307; Wilson v. Beck (Tex.Civ.App., Dallas 1926, er. ref.), 286 S.W. 315; Keller v. Lindow (Tex.Civ.App. 1910, er. ref.), 133 S.W. 304.

On the question of Frank and Christine Young’s marital status April 17, 1964, the evidence is brief. They were married in 1960, separated in June, 1962, lived together off and on until sometime in 1963, and had not lived together since. At the time she testified, February 2, 1965, Christine did not know Frank’s whereabouts, and said she had no intention of living with him in the future. Her intention in this regard on April 17, 1964, is cloaked in silence. The record also makes it clear as between Christine Young and her husband, Frank Young, the house and lot was a part of her separate estate. The evidence does not establish as a matter of law that Christine and Frank Young were permanently separated when the loan instruments were executed April 17, 1964. This is an essential element of the Nelkin defense, Masterson v. Bouldin (Tex.Civ.App.) 151 S.W.2d 301, writ refused, and failure is fatal to reversal on this ground. The appellants’ point presenting this matter is overruled.

S. Nelkin, the holder of the note and lien securing it, did not testify, but his father, T. Nelkin, did. The elder Nelkin stated that he was acquainted with the facts surrounding its purchase, that he knew his son owned the note, that it was purchased and money paid for it, and that he, T. Nelkin, did not know and had no reason to believe that Christine Young was a married woman. The burden of showing S. Nelkin was an innocent purchaser of the note and the lien securing it fell upon him. Homesteads, 28 Tex.Jur.2d, Sec. 107. In Hill v. Engel (Tex.Civ.App.1935) 89 S.W.2d 219, writ refused, it is said:

“In order for one to establish a plea of estoppel it is essential that he allege and prove not only that the misleading statements and representations were made by the parties sought to be es-topped, but that he actually believed and relied on said representations and was misled to his injury thereby. 17 Tex.Jur. 147; 21 C.J. 1126, 1250; Kuykendall v. Spiller (Tex.Civ.App.) 299 S.W. 522, 527; Foster v. Spearman Equity Exchange (Tex.Civ.App.) 266 S.W. 583, 588; South Texas Lumber Co. v. Wolvin Line (Tex.Civ.App.) 199 S.W. 1129; Irvin v. Irvin (Tex.Civ.App.) 7 S.W. (2d) 1103; Robertson v. Vernon (Tex.Civ.App.) 3 S.W. (2d) 573; Hartman v. Chumley (Tex.Civ.App.) 266 S.W. 444, par. 3; Equitable Mortgage Co. v. Norton, 71 Tex. 683, 689, 10 S.W. 301, 304. Since appellant failed to offer any evidence to prove that he actually relied on the representations contained in said mechanic’s lien contract and in the deed of trust above referred to, he wholly failed to establish his plea of estoppel.”

S. Nelkin did not prove estoppel as a matter of law.

In a temporary injunction proceeding such as this, the trial judge resolves disputed fact issues and enters orders in harmony with his findings. If the relevant facts are not contradictory or conflicting, the judge has nothing to resolve and merely applies the law to such undisputed or conceded facts. Southland Life Ins. Co. v. Egan (op. adpt. 1935), 126 Tex. 160, 86 S.W.2d 722; Huston v. Throckmorton County (Tex.Civ.App., Eastland 1948, no writ), 215 S.W.2d 387; Robison v. Roberts (Tex.Civ.App., Texakwana 1955, er. ref.), 279 S.W.2d 484; Clesi v. Northwest Dallas Imp. Ass’n. (Tex.Civ.App., Dallas 1953, er. ref., n. r. e.), 263 S.W.2d 820; Kostoff v. Harris (Tex.Civ.App., Dallas 1954, er. ref., n. r. e.) 266 S.W.2d 204; City of Waco v. Marstaller (Tex.Civ.App., Waco 1954, no writ) 271 S.W.2d 722. The evidence discloses Christine Young’s probable right to nullify the lien in question and probable injury to her if the status quo is not preserved. The trial court did not abuse its discretion. Transport Co. of Texas v. Robertson Transports, Inc. (1953) 152 Tex. 551, 261 S.W.2d 549. Affirmed.


author: WALTER, Justice.

text:
    Vanita HARBORD, Appellant, v. Leonidas HARBORD, Appellee.
    No. 3998.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 26, 1965.
    Rehearing Denied Dec. 17, 1965.
    J. Leonard Gotsdiner and Ranseler O. Wyatt, Houston, for appellant.
    James S. Kelly, Houston, for appellee.
   WALTER, Justice.

Leonidas Harbord filed suit against his wife for a divorce. The court granted him a divorce and his wife has appealed.

She contends the court erred in rendering judgment for a divorce because all alleged acts of cruelty were condoned; that the judgment is contrary to the great weight and preponderance of the evidence; that there is no evidence to support the alleged grounds of cruel treatment, and because the appellee was guilty of recrimination, as a matter of law.

The parties were married on or about September 22nd, 1961 and lived together about sixteen months.

Appellee testified that shortly after their marriage his wife commenced a course of behavior that was characterized by constant arguing and nagging; that such arguments became progressively more violent and bitter; that his wife used profanity and scurrilous language; that such conduct irritated his intestinal disorder.

Appellee further testified substantially as follows:

The last time I separated from my wife was some time in May ’64, after we had made a trip to Galveston; I had sexual relations with my wife while we were in Galveston; I stayed all night with my wife one time since the Galveston trip — that was on June 8, 1964. We had sexual relations on the night of June 8th. From June 8, 1964, until I filed my suit for divorce on June 23, 1964, I had “no relationship with her at all.”

A Doctor Gordon testified that emotional stress should be avoided by appellee.

The record does not show any new acts of cruelty between June 8, 1964 and the filing of this suit. Appellee voluntarily resumed cohabitation after he separated from his wife. We find from the facts and circumstances set out above and other testimony in the record that all of the alleged acts of cruel treatment were condoned by the appellee. Appellant’s points are sustained. The judgment is reversed and judgment is rendered denying appellant a divorce.

Judgment reversed and judgment rendered for appellant.


author: FINCH, Judge.

text:
    STATE of Missouri, Respondent, v. William Cullen BRIDGES, M.D., Appellant.
    No. 50525.
    Supreme Court of Missouri, En Banc.
    Jan. 14, 1966.

      Norman H. Anderson, Atty. Gen., Jefferson City, James P. Jouras, Sp. Ass’t. Atty. Gen., Kansas City, for respondent.
    David M. Grant and Raymond Howard, Jr., St. Louis, for appellant.
   FINCH, Judge.

Defendant was convicted of unlawfully distributing and transferring amphetamine hydrochloride, a stimulant drug, and the jury assessed his punishment at a fine of five hundred dollars. We have jurisdiction of his appeal because the construction of the Constitutions of the United States and of the State of Missouri is involved. Section 3, Article V, Missouri Constitution, V.A.M.S. After the adoption by Division One of this court of an opinion affirming the conviction, the case was transferred, on request, to the court en banc by reason of the fact that there had been a dissenting opinion to the divisional opinion.

The indictment under which defendant was tried was as follows: “ * * * That WILLIAM CULLEN BRIDGES, M.D., physician and surgeon, on the 12th day of May (1962), * ⅜ * did unlawfully, designedly, and wilfully distribute and transfer one ounce of amphetamine hydrochloride, to-wit: by selling a prescription for one ounce of amphetamine hydrochloride to PEARL WALLACE, also known as RAE WALKER, which was not for medicinal purposes, for Seven Dollars, which was not in the usual course of business or practice, contrary to Section 195.240, Missouri Revised Statutes, * *

Pertinent sections and parts of sections of Chapter 195 (all references are to RSMo 1959, V.A.M.S., unless otherwise indicated) relevant to the charge against defendant are as follows:

“195.220. Definitions. — As used in sections 195.220 to 195.270, the following terms mean:

* £ * ⅛ * *

(2) ‘Stimulant’, amphetamine or any of its derivatives which have an exciting effect on the central nervous system of a human or animal.

“195.230. Division of health to file list of drugs. — The division of health of the department of health and welfare shall prepare a list of all drugs falling within the purview of the terms barbiturate or stimulant. Upon preparation, a copy of the list shall be filed in the office of the secretary of state.

“195.240. Possession or distribution of barbiturates or stimulants regulated. — The possession, sale, distribution, or transfer of any drug which is designated by the division of health to be a barbiturate or stimulant is unlawful, except in the usual course of business or practice, or in the performance of their official duties by the following persons:

(1) Persons licensed under the provisions of chapters * * * 334, * * *, RSMo.”

Chapter 334 provides for the licensing of physicians and surgeons.

On August 31, 1959, the Division of Health, in accordance with § 195.230, filed in the office of the Secretary of State a list of stimulants which was as follows:

“LIST OF STIMULANTS AMPHETAMINES

Definition of Amphetamine:

Any stimulant drug consisting of phenyliso-propylamine and all derivatives thereof, except preparations intended for use in the nose and which cannot be rendered fit for internal use shall be considered a part of this list.

Chemical Classification Generic Name
dl-l-phenyl-2-amino-propane sulfate Amphetamine Sulfate USP
d-l-phenyl-2-amino-p ropane sul fate Dextro-amphetamine Sulfate USP
trimethylphenethylamine Mephentermine USP
desoxyephedrine hydrochloride; d-l-phenyl-2-methyl-amino-propane hydrochloride Methamphetamine Hydrochloride USP
l-phenyl-2-nicotinyl-amino-propane Nicotinyl-amphetamine”

The evidence on behalf of the state would justify the following statement of facts: Defendant is a physician and surgeon in the City of St. Louis. On the evening of May 12, 1962, Pearl Wallace went to defendant’s office to obtain a prescription for amphetamine hydrochloride. She had taken drugs for many years and had used amphetamine for five years. She would dissolve it in water and inject it into her veins with a hypodermic needle. At the time in question she was not under medication, treatment or care of a doctor for anything. She did not discuss her weight with the defendant or seek relief from him to enable her to lose weight. She simply went to his office and asked for a prescription. Defendant wrote out a prescription for two ounces of amphetamine hydrochloride and delivered it to Pearl Wallace, for which she paid him the sum of seven dollars. She then took the prescription to a drugstore, where she had it filled. The pharmacist who filled the prescription testified that he did fill the prescription for Pearl Wallace, and he identified amphetamine hydrochloride as a derivative of amphetamine. He testified that the principal difference between it and amphetamine sulphate, another derivative of amphetamine, was that the hydrochloride was more soluble than the sulphate. Other witnesses testified that in the months preceding May 12, 1962, they had gone to defendant’s office and purchased prescriptions for amphetamine hydrochloride.

Defendant first attacks on constitutional grounds the statute under which the indictment against defendant was returned. These constitutional questions can be divided into three subdivisions.

First, defendant contends that the portion of § 195.240 which reads: “ * * * except in the usual course of business or practice, or in the performance of their official duties by * * * [physicians]” is too vague, uncertain, ambiguous and indefinite to provide an ascertainable standard of guilt. This, says defendant, causes difficulty in determining just what is prohibited and prevents one charged from having an adequate opportunity to prepare a defense, thereby depriving him of due process. Cases such as Diemer v. Weiss, 343 Mo. 626, 122 S.W.2d 922, which consider the standard of certainty required in criminal statutes are cited. We agree with the rule therein laid down. The difficulty is that defendant does not demonstrate that the statute here involved violates those principles. The statute in question proscribes the possession, sale, distribution, or transfer of certain drugs. Physicians and others specified in the statute are excepted therefrom in “the usual course of business or practice, or in the performance of their official duties.” In other words, a physician acts lawfully in possessing, selling, distributing, or transferring such drugs so long as he does so in the usual course of his medical practice in treating patients and prescribing for them. Such language is not vague or uncertain. The phrases “usual course of business or practice” of such persons as physicians and surgeons and “performance of their official duties” by such persons as officials of enforcement agencies are in such common use that any reasonable man can determine their meaning. Surely, one licensed as a physician knows when he is acting in the usual course of his practice of medicine. The same can be said for one in public office as to when he is performing his official duties. We rule this contention against defendant.

Second, defendant alleges denial of due process in that the statute made no provision requiring the Division of Health to give any kind of notice, actual or constructive, of the filing of a list of drugs designated by that agency pursuant to the statute. This contention also is without merit. Section 195.220 defines “stimulant” and by § 195.230 the Division of Health is directed to prepare a list of all drugs falling within the said definition, and to file such list in the office of the Secretary of State. Thus, by § 195.220 defendant is put on notice of and given a clear standard of what drugs (barbiturates and stimulants as defined) are involved in the enactment, and by § 195.230 he is directed to where he can find a list of all the proscribed drugs. It is a rule deep within our law that ignorance of the law is no excuse, and under this maxim defendant is presumed to know the law. That law told the defendant what drugs were proscribed and where a list could be found. This was sufficient.

Third, defendant claims that the statutes here involved are unconstitutional under Section 1 of Article II of the Constitution of Missouri, V.A.M.S., in that they unlawfully delegate legislative authority to the Division of Health to designate drugs covered by the act, with no standard, rule or reasonable guide set out in the statutes for the Division of Health to follow. Cases cited include Lux v. Milwaukee Mechanics’ Ins. Co., 322 Mo. 342, 15 S.W.2d 343; State ex rel. Triangle Fuel Co. v. Caulfield, 355 Mo. 330, 196 S.W.2d 296, and State ex rel. Ludlow v. Guffey, Mo., 306 S.W.2d 552. In substance, these cases hold that an enactment which delegates authority is constitutional if a definite standard is provided and no arbitrary discretion is involved. The above cases and cases such as State ex rel. Mackey v. Hyde, 315 Mo. 681, 286 S.W. 363, provide certain exceptions where there is greater latitude, but we need not consider those exceptions because here the Division of Health is limited to a definite standard for its delegated duty, and no arbitrary discretion can be or is involved. Section 195.220 defines “stimulant” as “amphetamine or any of its derivatives which have an exciting effect on the central nervous system of a human or animal.” This provides a definite standard to which the Division of Health is limited in the performance of its delegated duty. There is virtually no discretion in the preparation and filing of the list of drags. The only way this limited discretion could be abused would be by listing a drug which does not fall within the definition (something not amphetamine or a derivative thereof or a derivative not having an exciting effect on the central nervous system of a human or animal), and prosecution involving such a drug would not support a conviction under the act. Obviously, it is possible from time to time that there will be additional derivatives of amphetamine which have an exciting effect on the nervous system, and the statute permits the Division of Health to list such drugs and file the list in the office of the Secretary of State, but the Division still is limited to listing only amphetamine or derivatives of amphetamine which have an exciting effect on the nervous system of a human or animal. This contention is overruled.

Defendant’s attack on the indictment is two-fold, as follows:

First, it charges no offense because it charges merely the distribution and transfer of a prescription for amphetamine hydrochloride, whereas the statute prohibits the sale, distribution or transfer of the proscribed drug itself. Defendant’s contention overlooks the fact that the indictment does charge the distribution and transfer of the drug amphetamine hydrochloride. It charges that this was accomplished by selling a prescription therefor to Pearl Wallace. The indictment in question charges: (1) that appellant was a physician; (2) that on May 12, 1962, he unlawfully distributed and transferred one ounce of amphetamine hydrochloride; (3) by selling a prescription for amphetamine hydrochloride; (4) to Pearl Wallace; (5) which was not for medicinal purposes; (6) for Seven Dollars; (7) which was not in the usual course of business or practice; (8) contrary to Section 195.240, Revised Statutes of Missouri. The indictment substantially follows the language of the statute and is sufficient. State v. Crawford, Mo., 251 S.W.2d 76; State v. Anderson, Mo., 232 S.W.2d 909. See also Jin Fuey Moy v. United States, 254 U.S. 189, 41 S.Ct. 98, 65 L.Ed. 214, wherein the Supreme Court of the United States upheld a conviction for illegal sale of a narcotic based on an indictment which charged sale by issuing and dispensing to a particular person a prescription for the narcotic. See also Nigro v. United States, 117 F.2d 624, 631, 133 A.L.R. 1128, wherein the court said: “This court is unequivocally committed to the view that a registered physician who issues a prescription for morphine sulphate to an addict not in the course of his professional practice, and the addict upon such prescription purchases morphine even from an innocent druggist, the physician participates in the illegal sale and is guilty of ‘selling1 within the meaning of the statute.” We hold that the indictment is not subject to attack on the basis that it failed to charge defendant with distribution or transfer of the drug. The indictment need not recite specifically that the prescription was filled. This does not mean, however, that the verdict-directing instruction would not be required to submit to the jury the question of whether under the evidence they found that the prescription actually was filled so that the proscribed drug was obtained by the alleged purchaser.

Second, defendant contends the indictment is fatally defective because it alleges a transfer of amphetamine hydrochloride, a drug not listed on the list of drugs filed by the Division of Health with the Secretary of State pursuant to § 195.230, and hence charges no offense under the statute.

Defendant, by the indictment, was charged with a violation of § 195.240. The indictment specifically so states. That section of the statute proscribes the possession, sale, distribution, or transfer of certain drugs unless one of the exceptions provided in the statute is applicable. What drugs are proscribed by § 195.240? They are barbiturates or stimulants “designated by the division of health to be a barbiturate or stimulant” within the definition set out in § 195.220. How does the Division of Health so designate a drug? By preparing a list thereof which is then filed in the office of the Secretary of State. This has been done by the Division of Health and a printed .copy of the list as filed was offered in evidence by the State as Exhibit 2. Amphetamine hydrochloride was not included on that list. It thus would appear that the indictment may not in fact charge defendant with the transfer of a drug “designated by the division of health to be a * * * stimulant.” If it does not, it charges no offense under § 195.240.

The State contends that the indictment does charge an offense, saying that amphetamine hydrochloride is not a derivative of amphetamine at all, but instead merely contains amphetamine in compound with hydrochloride to make it soluble. Accordingly, says the State, the indictment does charge the distribution and transfer of amphetamine itself and is sufficient since amphetamine is listed both in § 195.220 and in the list filed by the Division of Health. There was no proof offered by the State in this case to support such contention. As a matter of fact, the druggist who filled the prescription and was a witness for the State testified that amphetamine hydrochloride is a derivative of amphetamine. However, this is a fact question and the conviction should be reversed and the case remanded to give the State the opportunity to prove, if it can, that the compound in question is not a derivative of amphetamine but rather a compound or mixture containing the proscribed drug amphetamine itself. State v. Patton, Mo., 308 S.W.2d 641. It also is noted that on the list of drugs filed by the Division of Health appears methamphetamine hydrochloride US P. The testimony of the druggist who appeared for the State seems to indicate that this is a different drug than amphetamine hydrochloride, but if this assumption is incorrect and they are one and the same, the State will have an, opportunity to so prove on remand.

It is noted that the list of stimulants filed in the office of the Secretary of State by the Division of Health contains a definition of amphetamine. That definition, as heretofore set out, says that amphetamine includes “any stimulant drug consisting of phenylisopropylamine and all derivatives thereof * * Actually, this definition attempts by general formula to include on the list everything (except certain preparations for the nose) consisting of phenylisopropylamine or its derivatives. That is not what the legislature intended. The statute enjoined upon the Division of Health the duty to prepare a list of all proscribed drugs, not a general formula or guideline. A definition already has been provided by the legislature in § 195.220. If the formula contained in the definition on the list in the office of the Secretary of State is a mere restatement or duplication of the definition in § 195.220, it adds nothing and to that extent is not a compliance with the statutory duty to prepare and file a list of drugs. If it differs from the definition in § 195.220, it goes beyond what the Division of Health was authorized to do. For a drug which is in fact a derivative of amphetamine to be the basis of a prosecution under § 195.240, it must be listed by the Division of Health on the list which it files in the office of the Secretary of State. This statute applies not only to persons with technical knowledge such as physicians, pharmacists and chemists, but to everyone. Such persons should be able to refer to the list provided for in the statute to determine whether he possesses or is dealing with a proscribed drug. It should make it clear, definite and certain to the average man so that he, with due eare, after reading same, will understand whether he is dealing with respect to a proscribed drug. Diemer v. Weiss, 343 Mo. 626, 122 S.W.2d 922, 924. Accordingly, it is incumbent on the Division of Health to file a proper and complete list of the proscribed drugs and to keep it up to date.

If this case is retried by the State, Instruction No. 1 should be redrafted to include a finding by the jury that the prescription sold by defendant to Pearl Wallace actually was filled and the drug thereby obtained by her. There was evidence that it was, but this fact was not admitted by defendant and Instruction No. 1 did not require such a finding. This element is the very essence of the crime charged and the main instruction should have required the jury to find that essential fact. State v. Griggs, Mo., 236 S.W.2d 588.

The judgment of conviction is reversed and the case is remanded.

All concur.


author: CLEMENS, Commissioner.

text:
    Richard W. TABOR, an Infant, by Festus O. Tabor, his Next Friend, Plaintiff-Appellant, v. Hubert HAHS, Defendant-Respondent.
    No. 31895.
    St. Louis Court of Appeals. Missouri.
    Dec. 21, 1965.

      Russell N. MacLeod and John D. Con-naghan, of Lyng & MacLeod, St. Louis, for appellant.
    H. L. C. Weier, of Dearing, Richeson, Weier & Roberts, Hillsboro, for respondent.
   CLEMENS, Commissioner.

The plaintiff appeals from an adverse judgment after the jury found for the defendant under plaintiff’s humanitarian submission. Plaintiff complains that the trial court erred by omitting a necessary element of plaintiff’s verdict-directing instruction.

The plaintiff was a pedestrian and the defendant was a motorist. Plaintiff’s evidence was that while he was walking diagonally across Gravois Road in St. Louis County, defendant drove up from behind and ran into him, breaking his leg. Plaintiff’s evidence tended to show that defendant was inattentive, and that he could have avoided the collision by stopping, by swerving, or by giving plaintiff a warning. Defendant’s evidence was that plaintiff ran into defendant’s path so quickly that he was unable to avoid the impact.

We must decide whether there was prejudicial error in the trial court’s modification of plaintiff’s verdict-directing instruction, from which the court deleted a part of plaintiff’s humanitarian submission. We conclude that the modified instruction was not erroneous; further, that plaintiff is complaining of harmless error.

The case was submitted to the jury by a set of instructions typically given in humanitarian cases. Instruction P-1 was plaintiff’s verdict-directing instruction under the humanitarian doctrine. P-3 submitted the so-called tail to P-1, saying that the jury should not consider any contributory negligence of the plaintiff. Instruction P-4 defined “highest degree of care.” Defendant’s only instruction was D-5, a partial converse, directing a verdict for the defendant if he was unable to avoid striking the plaintiff. And, by P-2, plaintiff submitted his measure of damages.

The only issue here concerns plaintiff’s verdict-directing instruction. He offered an instruction which the trial court refused, marked P-1A. The court then deleted a portion of instruction P-1A and gave the remainder of it, marked P-1. Judge Cardozo once wrote that too much detail obscures rather than clarifies. Certainly that is true of plaintiff’s verdict-directing instruction: it laboriously hypothesized facts not in issue and submitted triple acts of negligence in the conjunctive; it had many compound and stilted phrases and was profusely sprinkled with the phrase “if you so find.” The trial court struck out one long phrase, probably thinking it was repetitive. Actually, the stricken phrase was one of the five elements of the humanitarian doctrine. See Banks v. Morris & Co., 302 Mo. 254, 257 S.W. 482(2), where the Supreme Court pronounced the now venerable formula:

“ * * * (1) Plaintiff was in a position of peril; (2) defendant had notice thereof (if it was the duty of defendant to have been on the lookout, constructive notice suffices); (3) defendant after receiving such notice had the present ability, with the means at hand, to have averted the impending injury without injury to himself or others; (4) he failed to exercise ordinary care to avert such impending injury; and (5) by reason thereof plaintiff was injured. * * * ”

We now set out the refused instruction, with the part deleted by the trial court shown in italics. We have ourselves inserted five numbers in parentheses, to indicate each of the essential elements of a humanitarian case.

“The court instructs the jury that if you find and believe from the evidence that on the occasion mentioned in the evidence plaintiff was a pedestrian in and upon Gravois Road at or near its intersection with MacKenzie Road, both open and public streets and highways in the County of St. Louis, State of Missouri, if you so find, and that defendant did then and there drive and operate a motor vehicle at the aforesaid place, if you so find, and that said motor vehicle of defendant did collide with and strike plaintiff and that as a direct result thereof, plaintiff was injured thereby, if you so find, and if you further find and believe from the evidence that prior to said collision, defendant had stopped his motor vehicle then and there behind a truck stalled in the lane next to the center lane as mentioned in the evidence, and if you further find that after defendant had so stopped his motor vehicle in the center lane, plaintiff was at all times in the curb lane adjacent and to the right of that lane occupied by defendant’s vehicle and the said stalled truck, if you so find, and that prior to said collision, defendant did start up his motor vehicle and did turn to the right so as to enter the curb lane of traffic aforesaid, if you so find, and if you further find that at some time after defendant so started up his motor vehicle and before the aforesaid collision took place, (1) plaintiff came into and was in a position of imminent peril of being struck and collided with by the defendant’s said motor vehicle and plaintiff was oblivious of said peril, if you so find, and that (2) the defendant saw or by the exercise of the highest degree of care could have seen plaintiff in the aforesaid position of imminent peril of being struck and collided with by defendant’s said motor vehicle, if you so find, and that plaintiff was oblivious thereof, if you so find, (3) in time thereafter for defendant by the exercise of the highest degree of care, with the means and appliances then at hand and with reasonable safety to defendant’s said motor vehicle, the occupants thereof, or other persons or property thereabout, to have stopped said motor vehicle and to have swerved the same to the left and to have sounded a warning signal of its approach, proximity, movement or turn, if you so find, and by so doing defendant could thus and thereby have avoided striking plaintiff, if you so find, (4) and if you further find that defendant, under the circumstances aforesaid did fail to stop his motor vehicle and did fail to swerve the same to the left, and did fail to sound a warning of its approach, movement, proximity or turn, if you so find, and that in this failing to stop, and to swerve to the left, and to sound a warning signal, as aforesaid, that the defendant did then and there fail to exercise the highest degree of care in the operation of his motor vehicle and was negligent, if you so find, and (S) if you further find that said collision and plaintiff’s injuries were a direct result of defendant’s aforesaid negligence, if you so find, then your verdict should be in favor of plaintiff and against the defendant.”

We revert to the omitted portion of the verdict-directing instruction. We do not agree that striking this portion robbed the instruction of an essential humanitarian element. The stricken portion (4) called for findings that were either admitted or were hypothesized elsewhere in the instruction. Note that it first calls for a finding that the defendant did fail to stop, swerve or warn. The defendant admittedly did fail to take such evasive action. It is not necessary to hypothesize admitted facts in a humanitarian instruction. Byrnes v. Poplar Bluff Printing Co., Mo., 74 S.W.2d 20 [7]; and Wenzel v. Busch, Mo., 259 S.W. 767 [6]. Next, the stricken portion calls for a finding that in failing to stop, swerve or warn, the defendant failed to exercise the highest degree of care. However, that had already been hypothesized in the preceding clause (3), where the jury was required to find that the defendant had the ability to have stopped, swerved or warned by using the highest degree of care. The third and fourth elements of the Banks v. Morris formula require the ability to take evasive action and the failure to use due care in doing so. Stated conversely, the formula requires the ability by the use of due care to take evasive action, and the failure to do so. If the defendant by exercising the highest degree of care (a) had the ability to stop, swerve or warn, and (b) failed to do so, it follows that he was negligent. So considered, the given instruction met every requirement of the Banks v. Morris formula and was complete without the portion stricken by the trial court.

Even if we were to conclude that the trial court erred in modifying plaintiff’s verdict-directing instruction, that alleged error would be harmless. No judgment may be reversed except for error committed by the trial court against the appellant materially affecting the merits of the action. § 512.160, subd. 2, V.A.M.S.; Civil Rule 83.13(b), V.A.M.R. And, as said in the case of Null v. Stewart, Mo., 78 S.W.2d 75 [7], “ * * * No one can complain that a given instruction imposes on him a lesser degree of care than the law imposes [citing case], * * And see Raymond Missouri Instructions, § 215, and scores of cases collected in 3 Mo.Dig., Appeal and Error, 1064(1).

The general principle of harmless error has been applied to the modification of correct instructions. There is prejudicial error only when the modification makes the instruction less favorable to the party offering the correct instruction. Schiermeier v. Kroger Grocery & Baking Co., Mo.App., 167 S.W.2d 967 [6]; Dowd v. Schoening, Mo.App., 276 S.W.2d 478 [2]. If the instruction as modified is more favorable to the offering party, the modification of the instruction “would be its virtue, not its vice.” State ex rel. State Highway Commission v. Duncan, 323 Mo. 339, 19 S.W.2d 465 [4]. In a negligence case remarkably like the one before us, Schnell v. Landis Mach. Co., Mo., 199 S.W. 993, the court stated the issue thus: “ * * * The only error urged as a ground for reversal is that the court erred in modifying plaintiff’s main instruction, which undertook to cover the whole case. Said instruction as originally asked by plaintiff is copied below. Those parts now inclosed in brackets and italicized were stricken out by the court before the instruction was given. * * * ” As here, there was a defendant’s verdict in spite of a more favorable plaintiff’s verdict-directing instruction. Then, in denying plaintiff’s claim of erroneous modification, the court said:

"* * * It will be noted by a mere reading of the instruction that the portions stricken out were connected with the remaining portions of the instruction by the conjunctive 'and.’ Under such circumstances the striking out of those portions resulted in permitting the jury to find for plaintiff on less facts than required by the instruction as originally drawn. Certainly a plaintiff should not be heard to complain where one of his own instructions is so modified as to lessen the burden which he himself has fixed. * * * ”

For these reasons, we find that the modification of the plaintiff’s verdict-directing instruction was neither erroneous nor prejudicial.

Plaintiff makes further complaints as to the effect of the modification upon other given instructions, claiming that the deletion rendered them erroneous. He first says that the defendant’s converse instruction, D-5, was erroneous in submitting defendant’s failure to exercise the highest degree of care by not avoiding the collision, because that issue was omitted from plaintiff’s verdict-directing instruction. Assuming plaintiff’s contention of omission, arguendo, we are again in the field of harmless error. By instruction D-5, the defendant assumed a burden not cast upon him by instruction P-1; and one may not complain of an instruction placing too great a burden on his adversary. Tinsley v. Massman Const. Co., Mo., 270 S.W.2d 835 [3]. Plaintiff further claims that his given instruction P-3 referred to “defendant’s negligence as submitted in Instruction No. 1,” although that verdict-directing instruction did not submit any issue of negligence. The point is without merit because both clauses (3) and (5) of plaintiff’s verdict-directing instruction did mention that issue. The same is true of plaintiff’s claim of error as to his instruction P-4, defining the highest degree of care, because that term was also used in his own verdict-directing instruction.

Plaintiff’s complaint that the instructions were confusing must partly be laid at his own door by the wordiness of his instruction, P-1A. But considering the instructions as a whole, as we must (McClintock v. Price, Mo.App., 294 S.W.2d 643 [1-5]), we believe they adequately presented the issues to the jury. In our opinion, the modification did not obscure the meaning of either instruction P-1 alone, or of the instructions as a whole.

Accordingly, we hold that there was no prejudicial error in modifying plaintiff’s verdict-directing instruction; and this being the only point raised, the judgment should be affirmed.

PER CURIAM.

The foregoing opinion of CLEMENS, C., is adopted as the opinion of this court.

Accordingly, judgment is affirmed.

WOLFE, P. J., and ANDERSON and RUDDY, JJ., concur.