text:
    THE AMERICAN PHYSICIANS INSURANCE CO. v. Robert HRUSKA and Theodore MENAS
    5-4583
    428 S. W. 2d 622
    Opinion delivered June 3, 1968

      Thomas B. Tmnon and Donald Joe Adams, for appellant.

      Roy E. Danuser, Bruce G. Heavner and Clifford Jarrett, Kansas City, Mo., for appellees.
   John A. Fogleman, Justice.

Appellant seeks reversal of a judgment in favor of appellees for an alleged excessive amount exacted of appellees by it in connection with a transaction which appellees had contended was a usurious loan. Appellees contend that they borrowed $65,000 from appellant to enable them to purchase certain stock of Management Investment Corporation, a Missouri corporation of which they were the president and secretary respectively, and that this corporation in turn, owned all of the stock of Liberty Reserve Life Insurance Company. Appellees contend, that the loan was made on December 2, 1959, and by the terms of the loan agreement, they were required to repay $82,400 six months later which sum, they say, they borrowed from one Harold R. Smith in order to obtain release of the collateral. On the other hand, appellant contends that it purchased from appellee Hruska a negotiable note of Management Investment Corporation for $80,000 at a discount. Appellant further contends that Harold R. Smith purchased the note from it on June 2, 1960, along with collateral therefor, consisting of all of the stock of Management Investment Corporation and of Liberty Reserve Life Insurance Company, for a consideration of $82,000.

Suit was filed by appellee Hruska against appellant for the recovery of $17,400, alleged to be the interest he was required to pay in excess of the rate permitted by law. Eventually the case was tried, and upon a jury verdict on September 18, 1967, the court rendered its judgment in favor of appellees for the sum of $14,-800 with interest thereon from June 9, 1960.

In the interim between the filing of the complaint and trial, appellant filed a request for admissions, which was answered by appellees. They admitted that the note involved was for $80,000 and was executed by Management Investment Corporation and appellee Hruska; that it was not payable to appellant; and that it was the obligation of the corporation, along with appellees.

Subsequent to the filing of the response to the request for admissions, appellant filed a motion for summary judgment. This motion was based upon the pleadings and the answers to its request for admissions. Appellant contended that it was clear that it had purchased a note of Management Investment Corporation from Hruska at a discount and that the transaction did not constitute a loan and was not usurious. On the same date this motion was filed, appellees were granted leave to amend their complaint and filed a copy of the note. This copy revealed that the note bore a dateline at Baton Rouge, Louisiana, and was payable to “itself.” The name of the corporation was signed by Robert J. Hrus-ka, president. On the reverse side, endorsements of the corporation by Hruska as president and by Hruska individually appeared under a printed guaranty in favor of Fidelity National Bank of Baton Rouge, upon whose form the note was prepared and whose name as payee was stricken out. In the amended complaint, on which the case was ultimately tried, appellees alleged: that Management Investment Corporation owned all the stock of Liberty Reserve Life Insurance Company; that appellees owned a large portion of the capital stock of Management Investment and desired to purchase the balance of the outstanding stock; that on November 24, 1959, appellant obtained a Louisiana bank cashier’s check for $65,000 payable to the order of appellees and one Earl Shelton; that on December 1959, in Kansas City, Missouri, appellant agreed to loan this amount to appellees on condition that they pledge all of the stock of Management Investment Corporation as security and that a note for $80,000 bearing 6 pet. interest and endorsed by this corporation and Hruska individually be executed; that appellees paid appellant $82,400 on this note on June 1, 1960; that this amount was $14,800 in excess of the legal rate of interest. Thereafter, the cause was transferred to the Chancery Court of Baxter County, where the motion for summary judgment was denied and appellant required to plead to the amended complaint. The cause was then retransferred to Baxter Circuit Court where the motion for summary judgment was renewed and denied.

In response to interrogatories by appellees, appellant stated that on December 2, 1959, it purchased this note, which it claimed was alleged to be the property of Hruska, and paid $65,000 for it in Baton Rouge, Louisiana, with a check payable to appellees and Earl Shelton.

When the case was called for trial, appellant again renewed its motion for a summary judgment which was again denied. After the verdict, appellant moved for judgment notwithstanding the verdict, on the grounds that it was not supported by sufficient evidence.

Appellant lists four points for reversal which we will treat in the order asserted.

I.

THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S MOTION FOR SUMMARY JUDGMENT.

Appellant cites no authority in support of its position that it was entitled to judgment as a matter of law. We do not consider this point meritorious, however, because a trial on the merits was had after the repeated denials of the motion. It has been held that the denial of a summary judgment is not reviewable where the denial is followed by a trial on the merits. See Bell v. Harmon, 284 S. W. 2d 812 (Ky. 1955). We deem this to be an appropriate rule. We have pointed out that, in some respects at least, treatment of motions for summary judgment should be similar to that accorded motions for directed verdicts. Russell v. Rogers, 236 Ark. 713, 368 S. W. 2d 89. See, also, 6 Moore’s Federal Practice § 56.04[2] p. 2006. A motion for directed verdict at the conclusion of a plaintiff’s proof will not be considered on appeal where the defendant has thereafter offered evidence. Lytal v. Crank, 240 Ark. 433, 399 S. W. 2d 670. The obvious reason for this rule is that deficiencies in the evidence at that stage of the proceedings may well be supplied by evidence. Grooms v. Neff Harness Co., 79 Ark. 401, 407, 96 S. W. 135, 137; Fort Smith Cotton Oil Co. v. Swift & Company, 197 Ark. 594, 124 S. W. 2d 1. For the same reason, a final judgment should be tested upon the record as it exists at the time it is rendered rather than at the time the motion for summary judgment is denied.

II.

THE TRIAL COURT ERRED IN ADMISSION OF TESTIMONY WHICH WAS IRRELEVANT AND IMMATERIAL AND TENDED TO PREJUDICE THE JURY AGAINST THE APPELLANT.

Appellant contends that testimony of appellees, concerning an automobile driven by an officer of appellant and attendance of appellees at a football game as guests of officers of appellant, was irrelevant and immaterial and prejudicial in that the jury was led thereby to believe that appellant was a large, affluent company that “broke appellees’ company.”

Upon being asked if they were met in New Orleans by one Robert Love, prior to the transaction between the parties, Hruska replied that they were “with Mr. Moore’s Continental Lincoln.” He described the car as being equipped with a television. No objection was made to this testimony. Later appellant’s own attorney examined Menas about the type of automobile and the outcome of the football game. After Hruska had told of being taken to a country club where they met company officials for lunch and later of being taken by them to a football game, an objection that this testimony was immaterial and irrelevant was overruled'. Hruska then testified that discussions about the transaction were carried on intermittently during lunch and at the football game and thereafter at dinner at the country club. Inasmuch as the principal issue in the case was whether appellant made a loan to appellees secured by Mortgage Investment Corporation’s note and the pledge of stock, or whether appellant simply bought a note of Mortgage Investment at a discount, any and all negotiations leading up to the transaction were proper subjects of inquiry. Appellant suggests that since there was a written instrument, i. e., the note, this testimony was neither relevant nor material. We have long held that parol evidence is admissible for the purpose of showing the usurious nature of a transaction even though it might have a tendency to vary a written document. Tillar v. Cleveland, 47 Ark. 287, 1 S. W. 516; Heidelberg Southern Sales Co. v. Tudor, 229 Ark. 500, 316 S. W. 2d 716. This court has long taken the position that any evidence tending to show that the substance of a transaction was a scheme to evade usury laws, regardless of the. form thereof, should he admitted. Home Building & Savings Association v. Shotwell, 183 Ark. 750, 38 S. W. 2d 552. In 1886, in the case of Tillar v. Cleveland, supra, this court said:

“ * * * It would he strange if, upon the trial of such an issue, a court could not hear proof of all matters which throw light upon the situation and conduct of the parties, and the motives which influenced them.”

There has been no deviation from that idea since that time. We find no error here.

III.

THE VERDICT OF THE JURY IS CONTRARY TO A PREPONDERANCE OF THE EVIDENCE.

Appellant argues that there is no substantial evidence to support the theory that the transaction between the parties was actually a loan of $65,000 by appellant to appellees instead of a sale of a note by Hruska to appellant. Hruska testified substantially as follows: Menas brought Earl Shelton to discuss their need for money. Shelton claimed to be an actuary and consultant for American Physician’s Insurance Company and said he was in Missouri looking for a company for reinsurance and for the purpose of getting appellant into Missouri. Shelton expressed the thought that his company would make a loan to appellees. Pursuant to a tentative agreement with Shelton, appellees flew to New Orleans where they were met by a man named Love, who claimed to be assistant secretary of appellant. Love drove them to the home offices of appellant at Baton Rouge where they were met by E. P. Moore, executive vice president, one Avery, secretary, and Shelton. The loan was discussed along with the possibility that Liberty Reserve Insurance Company could reinsure risks if Hruska controlled both it and Mortgage Investment. This would permit appellant to write business in Missouri on a coinsurance or reinsurance agreement. They discussed the fact that the money was to be used by appellees to purchase the stock of two other stockholders in order that they might control both companies. Appellees asked for a loan for a year but appellant would only allow six months. These officers agreed to loan $65,000’ for six months at 6% interest. Appellees were returned to New Orleans in a company car and flew back to Kansas City on November 22, 1965. December 2 was the last day on which appellees could exercise their option to buy the stock. Shelton appeared in Kansas City on December 1st with a cashier’s check for $65,000 payable to appellees and Shelton. Shelton then demanded a “lug” of $15,000 and other concessions about the operation of the company and delivered an ultimatum that the demands would be met or there would be no mbney. Hruska refused on that day but felt compelled to accept the terms the next day. Shelton then drew up the papers which appellees signed and took the note and other papers and the stock of both the investment company and insurance company to Baton Rouge after delivering the check. When the note was due, appellees borrowed $83,-000 from one H. R. Smith, $82,400 of which was used to repay appellant. Management Investment Company had no reason to give him a note, but the corporation authorized the execution of the note.

The testimony of Menas was largely corroborative of that of Hruska. He said that when appellees did not accept the terms communicated by Shelton, they tried unsuccessfully overnight to get the money from other sources. He also said that there was no meeting of the board of directors of Mortgage Investment Corporation on either December 1st or 2nd.

This was sufficient evidence to support a finding that the real transaction was a loan by appellant to ap-pellees at a usurious rate of interest. This court said in Sparks v. Robinson, 66 Ark. 460, 51 S. W. 460:

“* * * The law shells the covering and extracts the kernel. Names amount to nothing, when they fail to designate the facts. We are of the opinion that the court was justified in concluding that the papers called bill of sale and sales tickets were nothing more or less than a shift for a usurious loan of money. ’ ’

A note payable to the order of the maker and. endorsed by him is void for usury when the difference in the consideration for the first negotiation and the face amount is more than the legal interest for the period between the date of negotiation and the date of maturity, if the parties to the loan intended to pay and receive a greater rate of interest than the legal rate. German Bank v. DeShon, 41 Ark. 331. Whether a particular transaction constitutes a loan or a bona fide purchase and discount is a jury question where the evidence is conflicting. Sallee v. Security Bank & Trust Co., 119 Ark. 484, 177 S. W. 1133. The Missouri law on this point seems virtually identical to that of Arkansas. It has been held there that a bona fide sale of notes, however great the discount, is not usurious, but where there is no sale in good faith but a mere loan, the fact that the note is made to one who, acting as a conduit, endorses it over to a third person who advances the money, knowing of the facts surrounding the execution, the procedure will not be sufficient to evade the usury laws. Anderson v. Curls, 309 S. W. 2d 692 (Mo. App. 1958). See, also, Quinn v. Van Raalte, 276 Mo. 71, 205 S. W. 59 (1918).

Appellant contends that since the note bears a Baton Rouge dateline, the Louisiana law should be applied. While there was conflict in the testimony and a finding that the note was executed in Louisiana might well have had adequate evidentiary support, Louisiana law cannot be applied in this case in any event for reasons hereinafter stated.

Appellant also suggests that the testimony of Hrus-ka is not substantial because of contradictory conclusions that may be found from his testimony and exhibits thereto. It is sufficient to say that his credibility and the weight to be given his testimony were proper matters for jury determination and have been resolved.

IV.

THE COURT ERRED IN ITS INSTRUCTIONS TO THE JURY AS TO WHICH LAW APPLIED.

Appellant’s attorney stated at the conclusion of all the evidence that appellant still contended that the law of Louisiana applied. Appellees then asked to be permitted to produce evidence as to the Missouri law and appellant’s counsel responded that the transaction ac-' tually took place in Louisiana. The court gave instructions based on Missouri law. No objection was made by appellant to any instruction. There is no reversible error on the part of the court in this action, for two reasons. In the first place, an instruction cannot he questioned on appeal in the absence of an objection. Ransom v. Weisharr, 236 Ark. 898, 370 S. W. 2d 598. Secondly, we cannot consider this contention because the Uniform Interstate & International Procedure Act requires that a party who intends to raise an issue concerning the law of any jurisdiction or governmental unit thereof outside this state must give notice in his pleading or other reasonable written notice. Ark. Stat. Ann. § 27-2504 (Supp. 1967). No such notice was given by appellant, even though all of its pleadings except an objection to process were filed after the effective date of the act. On the other hand, appellees pleaded Missouri law in their amended complaint. Although appellant denied the allegation with reference to the Missouri statute, there is no written notice of its reliance on Louisiana law. This requirement is a very useful and wise one. It is only fair that both the adversary and the trial court be advised of a party’s contention as to the applicable law where any question may arise. This should, be done in a manner so that the contention is clear before' the trial is undertaken and so that the appellate court can ascertain from the record that it was done.

CROSS-APPEAL

The trial court denied appellees’ motion for a reasonable attorney’s fee, from which appellees have taken a cross-appeal. The applicable Missouri statute provides that any person violating the act shall be subject to be sued for all sums of money paid in excess of the principal and legal rate of interest on any usurious loan “and shall be adjudged to pay the costs of the suit, including a reasonable attorney’s fee to be determined by the court. ’ ’ It seems clear that under the language of this statute, attorney’s fees are to be allowed as costs. See, also, Bruegge v. State Bank of Wellston, 74 S. W. 2d 835 (Mo. 1934). While appellees contend that in Missouri this is a matter of substantive, not procedural law, this is a matter for determination nnder Arkansas law and by Arkansas eonrts. St. Louis-San Francisco Ry. Co. v. Cox, 171 Ark. 103, 283 S. W. 31. See Leflar, Conflict of Laws (Student’s Edition, 1959) § 60, p. 110; 15A C. J. S. Conflict of Laws § 22(1), p. 527. The items of, and rig'hts to, costs are procedural and governed by the law of the forum. Bank v. Davidson, 18 Ore. 57, 22 Pac. 517 (1889); Security Co. of Hartford v. Eyer, 36 Neb. 507, 54 N. W. 838 (1893); Conte v. Flota Mercante Del Estado, 277 F. 2d 664 (2d Cir. 1960).

The right to costs is entirely dependent on statute in a case at law. Arkansas State Game & Fish Comm. v. Kizer, 222 Ark. 673, 262 S. W. 2d 265, 38 ALR 2d 1372; Grayson v. Arrington, 225 Ark. 922, 286 S. W. 2d 501; Arkansas State Highway Comm. v. Union Planters Nat'l Bank, 231 Ark. 907, 333 S. W. 2d 904. Attorney’s fees cannot be allowed as costs in suits except as provided by statutes. American Exchange Trust Co. v. Truman Special School Dist., 183 Ark. 1041, 40 S. W. 2d 770. We have held that entitlement to attorney’s fees on a suit brought in Arkansas on an insurance policy is a procedural matter and governed by Arkansas law. New Empire Life Ins. Co. v. Bowling, 241 Ark. 1051, 411 S. W. 2d 863. We find no Arkansas statute under which attorney’s fees might be allowed in a case such as this.

If the. statute providing for attorney’s fees is not to be considered as an allowance of costs, then it is a penal statute without extraterritorial effect and unenforceable in Arkansas. Arden Lumber Co. v. Henderson Iron Works & Supply Co., 83 Ark. 240, 103 S. W. 185; White-Wilson-Drew Co. v. Egelhoff, 96 Ark. 105, 131 S. W. 208.

The judgment is affirmed on appeal and cross-appeal.

       Menas became a party after the filing of the original complaint.


source: Caselaw Access Project

author: John A. Fogleman, Justice.

license: Public Domain

text:
    Lawanna Sue STEPHENS v. Albert STEPHENS
    5-4592
    428 S. W. 2d 246
    Opinion delivered June 3, 1968

      Bethell, Stochs, Galloway & King, for appellant.

      Robinson & Booth, for appellee.
   John A. Fogleman, Justice.

Appellant instituted a suit in Oklahoma to recover delinquent child support payments. Having obtained judgment, she proceeded to register it pursuant to the Uniform Enforcement of Foreign Judgments Act of Arkansas [Ark. Stat. Ann. §§ 29-801 through 29-818 (Eepl. 1962)]. As all proper steps for registration appeared to have been taken, an order of the Crawford County Chancery Court requiring an immediate writ of execution was made. The writ issued, and the sheriff levied upon a 1960 Diamond T Tractor registered in the name of Hugh Stephens, the former husband of appellant. Subsequently, Albert Stephens, the father of Hugh Stephens, filed an intervention claiming ownership of the truck. At the hearing on the intervention, the chancellor found Albert Stephens to be the equitable owner of the truck, vacated the order requiring immediate execution and quashed the levy of execution. From this determination in favor of the in-tervenor, appellant prosecutes this appeal, asserting several points for reversal. We find it unnecessary to discuss all of her points, as we feel that the decree of the lower court must be reversed due to our conclusion that the finding of equitable ownership in Albert Stephens is clearly against the preponderance of the evidence.

The undisputed evidence shows that the truck was purchased from the Fruehauf Trailer Division of the Fruehauf Corporation at Wichita, Kansas. In support of his contention of equitable ownership, intervenor-appel-lee introduced evidence showing that the loan from City National Bank of Tulsa, Oklahoma, made for the purpose of purchasing the truck, was taken out in the name of Albert Stephens. Carl Wiedemann, president of the lending bank and a witness in the proceedings below, testified that the loan was made to Albert, and not Hugh, Stephens and that, as far as he knew, the bank had never loaned any money to Hugh Stephens. The evidence further showed that the loan was repaid by checks written on the account of Mr. and Mrs. Albert Stephens, by Mrs. Albert Stephens, who was shown to be the business manager for the family.

The contention is made that Hugh Stephens was merely an employee of Albert Stephens in the latter’s trucking business. There was testimony that Hugh drew a salary of $75.00 per week, and that this was paid in cash but there was no documentary evidence indicative of an employer-employee relationship. Hugh Stephens stated that on long hauls (sometimes lasting two months or longer) he had the checks from customers made out to him; that he would cash them and use the proceeds for expenses; and that he turned over the remainder, if any, to- his mother.

Appellant introduced evidence proving that all documents concerning the truck in issue were in the name of defendant Hugh Stephens. The Kansas certificate of title reflected an assignment from the Fruehauf Trailer Company to Hugh Stephens. Also in the name of Hugh, as owner, were: (1) an application for registration of the truck with the Motor Vehicle Division of the Arkansas Department of Revenues; (2) an application for certificate of title (which contained a provision for fine and/or imprisonment for false answer); (3) an application for registration under Nebraska Motor Carriers Fuel Tax Law; and (4) an Illinois reciprocity application form. All these applications were necessitated by Hugh’s operation of the truck. Hugh’s 1966 federal income tax return included no amount under the heading “Wages, salaries, tips, etc.” Rather, it reflected that his occupation was a “trucker” and on Schedule C [Profit (or Loss) From Business or Profession] he stated his principal business activity to be “transportation.” In addition to showing “gross receipts” of $18,-000.00, the Schedule reflected that a deduction for depreciation on the truck was taken.

Appellant testified that the defendant, while they were still married, had told her that he had voluntarily gone into default on a truck he previously owned for the purpose of keeping his first wife from getting it. She further stated that he had financed the purchase of a 1963 GMC truck in his father’s (intervenor’s) name during the period of their marriage. With regard to the truck here involved, she testified that defendant told her that he had bought a new truck and that it was financed in his father’s name. She said that this was not an “unusual arrangement.” Her testimony was that, on one of the long hauls which the defendant had made, the checks were issued to him and that “[h]e and I used them” for expense money, to pay the rent, to buy groceries and his clothes.

In an attempt to justify or explain the fact that all the documents relating to the truck were in the name of his son, appellee-intervenor testified that, when he went to negotiate with Fruehauf, his son went with him. It became necessary for additional equipment to be added to the truck, which required additional time, and he left his son there to drive the truck hack the following day. He said that, through, some error on the part of employees of Fruehauf, the assignment of title was made in favor of Hugh, rather than himself.. He said that the error was. perpetuated by the' Arkansas Revenue Department when the truck was licensed' in Arkansas for the first time. All. the other documents, he claims, had to be in Hugh’s name because the original papers were issued that way.

The record does not contain a certificate of title from the Arkansas Department of Revenues, although there is evidence that a certificate had been issued in Hugh’s name. Appellee, attempting to show that no certificate had been issued, introduced a letter from the Department of Revenues which stated that the records did not reflect a title certificate having been issued. The record reflects, however, that this letter was in reply to a letter from appellee which Contained an incorrect serial number for the truck. Moreover, appellee’s own witness,-Carl Wiedemann, testified that the Department of Revenues informed him that “they had issued a title on this truck to Hugh Stephens.” Further evidence that a certificate had been issued is that the application for certificate of title (“pink slip”) showed the title number to be 5087234.

Reversed and remanded for further proceedings not inconsistent with this opinion.


text:
    W. T. RAINWATER et al, Directors of Blytheville School Dist. No. 5 v. William HAYNES et al Commissioners of Street Imp. Dist. No. 4
    5-4600
    428 S. W. 2d 254
    Opinion delivered June 3, 1968

      Reid, Burge So Prevallet, for appellants.

      H. G. Partlow Jr., for appellees.
   John A. Fogleman, Justice.

The sole question for decision on this appeal from a declaratory judgment is whether the property of a public school is subject to assessment of benefits by a municipal street improvement district in which the property lies. Appellants contended in the lower court that it was not and that the assessment made in this case was invalid because the property was exempt from taxation under Article 16, § 5 of the Arkansas Constitution.

This court was first confronted with this question in 1892, when it held that this section of the constitution did not exempt a public schoolhouse from liability for such an assessment. Board of Improvement v. School District of Little Rock, 56 Ark. 354, 19 S. W. 969. The basis for this holding was that the exemption of school buildings and grounds relates only to taxes for general purposes of revenues and has no reference to special taxes or assessments for local improvements. That property was held to be exempt under the act (Mansfield’s Digest, § 825 et seq.) because the court found no inference that the legislature intended to include school property in the real property to be assessed

Subsequently, the General Assembly adopted Act. 125 of 1913, § 7 of which [Ark. Stat. Ann. § 20-402 (Eepl. 1956)] specifically provides that property of public school districts shall.be subject to assessment for local improvements beneficial thereto and. authorizes school districts to sign petitions for the making of said improvements. This act clearly supplied the legislative intent found missing in Board of Improvement v. School District of Little Rock, supra. A holding that the act was invalid would be contrary to the holding of that case for the reason that the constitutional exemption would certainly have been applied if such a statute could not supply the deficiency there pointed out. Although it seems that the point has not been passed upon directly since the adoption of the act, the liability of school property for such assessments has been recognized in the following cases:

City of Malvern v. Nunn, 127 Ark. 418, 192 S. W. 909, approving the action of the trial conrt in excluding school property not listed or valued by the tax assessor on the assessment roll from the taxable value of the property in a proposed district, where we said the act above cited subjected the property of public school districts to such assessments and that the property had a voice in the organization of the district according to its value fixed by the assessment roll.

Waterworks Imp. Dist. No. 2 of Paris v. Logan County, 155 Ark. 257, 244 S. W. 4, wherein the decision in Board of Improvement v. School District of Little Rock, supra, was approved, but it was said that courthouses and jails could not be assessed because there was no statutory authorization as there was then in the case of the property of public school districts.

Fry v. Poe, 175 Ark. 375, 1 S. W. 2d 29, wherein it is said that the right-of-way and roadbed of railroads are, along with churches and schoolhouses, subject to local assessments in municipal improvement districts.

In Bensberg v. Parker, 192 Ark. 908, 95 S. W. 2d 892, in a case involving church property, we again held that the constitutional exemption applies only to taxes for the general purposes of government and does not relieve those in whose favor the exemption exists from the obligation to pay special assessments which are charged upon property on the theory that such property is specially benefited thereby.

Appellees’ argument overlooks the fact that these special assessments are not really “taxes” in the usual and ordinary meaning of the word. While both are referable to the sovereign power of taxation, the words “taxes” on the one hand and “assessment”, “special assessments” or “local assessments” on the other, ordinarily have distinct legal meanings. The word “taxes” refers to exactions laid by the government for purposes of general revenue. The word “assessments” refers to exactions laid for making local improvements for tlie benefit of property owners. The word “tax” does not include “assessments.” Board of Improvement Searer Dist. No. 2 v. Sisters of Mercy, 86 Ark. 109, 109 S. W. 1165, 15 Ann. Cas. 347; Martin v. Reynolds, 125 Ark. 163, 188 S. W. 4; Missouri Pacific R. Co. v. Izard Co. Highway Imp. Dist. No. 1, 143 Ark. 261, 220 S. W. 452. See, also, Wood v. Henderson, 225 Ark. 180, 280 S. W. 2d 226.

The whole foundation of our improvement district system in Arkansas is expressed by the Honorable Horace Sloan in his definition of local assessments in his scholarly treatise entitled “Improvement Districts in Arkansas.” This definition appears therein as § 1 and reads:

“A local assessment is a compulsory contribution, levied by the Legislature or pursuant to legislative delegation of authority, for the purpose of defraying all or a part of the expense of constructing or maintaining a specific local improvement of a public nature and imposed upon the property specially and peculiarly benefited by such local improvement in proportion to but not substantially in excess of the benefits so received by the property affected.”

See McGehee v. Mathis, 21 Ark. 40; Davies v. Gaines, 48 Ark. 370, 3 S. W. 184; Coleman v. Eight Mile Drainage Dist. No. 2, 106 Ark. 22, 152 S. W. 1004; Bensberg v. Parker, 192 Ark. 908, 95 S. W. 2d 892; Ragsdale v. Cunningham, 201 Ark. 848, 147 S. W. 2d 20.

Such assessments are justified by the peculiar and special benefits which the improvements bestow upon the property assessed. Kirst v. Street Imp. Dist. No. 120, 86 Ark. 1, 109 S. W. 526; St. Louis, I. M. & S. R. Co. v. Board of Directors of Levee Dist. No. 2, 103 Ark. 127, 145 S. W. 892; 1 Sloan, “Improvement Districts In Arkansas,” § 2, p. 2. We find that the statute does not conflict with this constitutional provision.

While the claim of exemption under Article 16, § 5, of the Arkansas Constitution is the only issue raised' in the lower court, appellants argue here that an additional reason for holding this legislation invalid is conflict with Article 14, §§ 2 & 3\ Because of the public interest involved, we elect to consider this contention. The former section prohibits the use. of money or property belonging to the state school fund for any other than the purpose to which it belongs. The latter prohibits the annual tax voted by the electors of the district from being used for any purpose other than the maintenance of schools, the erection and equipment of school buildings and the retirement of existing indebtedness. In considering these prohibitions, we recognize that it is common knowledge that the annual tax on property in a school district is only one of its many sources of revenues.

The payment of attorney’s fees for recovery of school funds from solvent sureties on the bond of an insolvent depository has been held to be a legitimate' expenditure .not in conflict with Article 14, § 2. Board of Education of Lonoke County v. Lonoke County, 181 Ark. 1046, 29 S. W. 2d 268. The payment of professional appraisers employed to appraise all real estate in a county under Act 351 of 1949, as an aid to the tax assessor in assessing property for ad valorem taxes, is not prohibited by Article 14, § 3, as amended by Amendment 40. Strawn v. Campbell, 226 Ark. 449, 291 S. W. 2d 508. The payment of a just proportion of the salaries of the county collector and the county treasurer was held not to be an unconstitutional diversion of school funds. County Board of Education v. Austin, 169 Ark. 436, 276 S. W. 2. From these cases it seems clear that any use of those funds raised from taxation that results in benefits to those funds or property or aids in the stated purposes for which these funds may be expended would not be an unconstitutional diversion. The benefits to be derived by school districts in performing their functions by construction of streets, sewers, water systems, electrical distribution systems, drains, levees, and other improvements which may be undertaken through improvement districts seem obvious. Certainly, direct expenditures by school districts for such improvements for its. own use and benefit would not be considered diversion of school funds. There is no reason why the distribution of the financial burden proportionately among a number of properties so benefited should make it so.

If the school property was not benefited in this instance, appellants could have appealed the finding of the assessors to the city council for a hearing de novo. Ark. Stat. Ann. § 20-406. It then might have had the assessment against its property corrected by applying to the chancery court within thirty days after the publication of the city ordinance confirming the assessments was published. Ark. Stat. Ann. % 20-416; Lenon v. Street Imp. Dist. No. 512, 181 Ark. 318, 26 S. W. 2d 572. In the absence of a showing that these procedures were successfully followed, it must be presumed that this school property was benefited.

The procedure for enforcing payment of the annual installments of assessed benefits is not a matter for determination on this appeal, not having been an issue in the lower court and having no bearing on the constitutional questions raised.

Appellants also contend that the act is permissive, in that it permits, but does not require the participation of the school district. This question was not in issue in the lower court, but we find it to be without merit. The act says that the property of public school districts shall be subject to assessment. The only part of the act which gives the school district any option is that permitting it to sign the petition seeking the creation of the district.

The decree is affirmed.

       As amended by Amendments 11 & 40.


text:
    James William MOORE, James Thomas Frazier and Glenn E. Davidson v. STATE of Arkansas
    5321
    429 S. W. 2d 122
    Opinion delivered June 3, 1968
    [Rehearing denied July 15, 1968.]

      W. M. Herndon and Darrell Hickman, for appellants.

      Joe Purcell, Attorney General; Don Langston, Asst. Atty. Geii., for appellee.
   John A. Fogleman, Justice.

Appellants bring this appeal from the judgment of the White Circuit Court convicting them of possession of burglary tools and possession of gambling equipment. Eight points are urged for reversal. The facts pertinent to a decision in this case will be . taken up as applicable to the points for reversal, which have been renumbered for purposes of this opinion.

(1) Appellants assert error in tlie trial court’s failure to suppress certain evidence. This contention is based upon the alleged invalidity of the search warrants due to the alleged absence of an oath or affirmation and the asserted lack of probable cause for their issuance.

The record reflects that there were three searches involved and that, with regard to the first, the Sheriff of White County obtained a search warrant to search appellants’ motel rooms, the car in which they were traveling and the trailer attached to the car. The sheriff’s testimony at the hearing on the motion to suppress and at the trial showed that he had information that appellants were at the motel and that they had burglary tools in their possession. He further stated that his decision to obtain. a search warrant was reached after a period of surveillance of appellants’ activities in and around the motel room and the car and trailer.

At the hearing on the motion to suppress, the State introduced the search warrants pursuant to which the searches were made. Although appellants subpoenaed the sheriff, several officers who had been involved in the search, and the justice of the peace who issued the warrants, only one person, appellant Glenn Davidson, was called in behalf of appellants. His testimony amounted to little more than a narration of the searches and arrests. No attempt was made to show facts indicative of the alleged lack of probable cause. While appellants contended that the warrants had been issued without oath or affirmation, the only evidence on this point was the testimony of the sheriff, who stated that an affidavit as to the facts and circumstances showing probable cause had been made.

In Albright v. Karston, 206 Ark. 307, 176 S. W. 2d 421, we held that where the search warrant is regular on its face and there is no proof that the ‘ ‘ oath or affirmation” was not made prior to its issuance, there is a presumption that all things essential to its validity have been done. It was therefore the duty of appellants to come forward with evidence sufficient to rebut the presumption of validity. Additionally, we note the prevailing view that the burden of proof on a motion to suppress is on the accused. Anderson v. United States, 344 F. 2d 792 (10th Cir. 1965); People v. Williams, 20 N. Y. 2d 388, 283 N. Y. S. 2d 169 (1967). In Wilson v. State, 268 P. 2d 585 (Okla. Crim. 1954), the Oklahoma court, in noting that the burden was on defendant on his motion to suppress, said:

“The burden of proving the invalidity of a search warrant rests on the defendant, and where he files a motion to suppress evidence or objects to the introduction of evidence on the ground the search warrant is not valid, he should produce the affidavit and warrant in evidence in support of such motion or objection, or account for the failure to produce and offer other competent evidence to show invalidity.”

See, also, 22A C. J. S. Criminal Law §§ 578 and 657(32) (a); Varón, Searches and Seizures, § 6(c). On the state of the facts in the case at bar, we feel that appellants have failed to meet the burden incumbent upon them to show that the first warrant was invalid. The evidence seized as a result of the first search was, therefore, admissible and the motion to suppress properly overruled.

With regard to the second search, appellants contended there was no probable cause therefor. After the first search, Sheriff Davis and his men withdrew from the premises but continued to keep appellants under surveillance, since the sheriff had information that another car was to make contact with appellants for the purpose of transferring burglar tools. During this period between the first and second searches, the wife of a companion of appellants came to the motel. Having been identified by the officers, she subsequently left. Thereafter, appellants got into the car and appeared to be leaving town when they were stopped. On this occasion the appellants were' arrested and taken into custody. The result of the search was that a Craftsman Drill, not discovered during the first search, was found.

On the record before us, we feel that the second search was lawful and that the trial court was correct in its ruling that the evidence seized pursuant thereto was admissible. While there are numerous cases which state that a "return” search, conducted on the basis of the warrant issued for the original search, is not permissible, these cases seem to involve situations where the officers have completely abandoned the premises for a substantial period of time. See, e. g., State v. Moran, 103 W. Va. 753, 138 S. E. 366 (1927); Coburn v. State, 78 Okla. Crim. 362, 148 P. 2d 483 (1944); McDonald v. State, 195 Tenn. 282, 259 S. W. 2d 524 (1953); State v. Pina, 94 Ariz. 243, 383 P. 2d 167 (1963). Such is not the case here. The sheriff and his men, after making the first search and on information that there was to be a subsequent contact with appellants, withdrew from the premises, but maintained constant vigil until such time as the arrests and second search were made. The second search was but a continuation and consummation of the first. There was reasonable cause to believe that other evidence, and possibly other persons, would be involved. The reasonableness of a search in any case must be decided "upon its own facts and circumstances.” Go-Bart Importing Co. v. United States, 282 U. S. 344, 51 S. Ct. 153, 75 L. Ed. 374 (1931). We cannot say that this record reflects an unconstitutional invasion at the time of the second search.

There is another ground on which we find the second search to be lawful, and that is that it constituted a search incident to a lawful arrest. The first search had been made and the objects (consisting of two pairs of vice grips, a hand drill, and a pair of rubber gloves) lawfully seized. The officers thus had probable cause to arrest appellants for the crime of possessing burglary tools. Ark. Stat. Ann. § 41-1006 (Eepl. 1964). "While it might be better procedure to make an arrest immediately upon seizure of evidence, we hesitate, on the peculiar facts and circumstances of this case, to say that it was unreasonable for the officers to delay the arrests until such time as it appeared that no other parties were involved. The arrests being lawful, the officers acted within the bounds of reason in searching the immediate premises under the control of appellants. Harris v. United States, 331 U. S. 145, 67 S. Ct. 1098, 91 L. Ed. 1399 (1947); United States v. Rabinowitz, 339 U. S. 56, 70 S. Ct. 430, 94 L. Ed. 653 (1950). Although there is sufficient justification for holding that the arrests occurred as soon as the officers stopped the car in which the appellants were traveling, this would appear to be insignificant, since, in any event, the search and the arrests were ‘‘substantially contemporaneous.” Stoner v. California, 376 U. S. 483, 84 S. Ct. 889, 11 L. Ed. 2d 856 (1964); State v. Hoover, 219 Ore. 288, 347 P. 2d 69, 89 ALR 2d 695 (1959). Moreover, the fact that we are here concerned with the search of an automobile is significant. The courts, both federal and state, have long distinguished between searches of dwellings and vehicles. In the case of vehicles, the validity of the seizure is not. dependent upon the right to arrest, but rather upon the reasonable cause the seizing officer has for the belief that the contents of the automobile offended against the law. Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1925); Burke v. State, 235 Ark. 882, 362 S. W. 2d 695; Mann v. City of Heber Springs, 239 Ark. 969, 395 S. W. 2d 557. For the reasons herein stated, we find that the second search was valid and reasonable under the circumstances of this case.

Appellants contended also that there was impropriety in the third search which was carried out on the following day pursuant to another search warrant. Apparently, the basis for their contention is that there existed no probable cause for issuance of the warrant. The record indicates that during the course of the previously described searches, the sheriff observed a peculiar looking table which was wired, two large batteries, and another box containing “some kind of device to operate the magnetism on the table.” His suspicion that a gaming device had been uncovered was buttressed by the discovery of several pairs of dice in the suitcase of one of the appellants. The sheriff did not immediately take any action with regard to the table and the supporting apparatus, but waited until after the second search, at which time he radioed in to headquarters, instructing that a separate search warrant be obtained pursuant to Ark. Stat. Ann. § 41-2009. The sheriff testified that he subsequently made an affidavit stating the facts constituting probable cause.

As in the case of the warrant for the first search, appellants have made no attempt to show that probable cause was lacking for the issuance of the warrant. It must therefore be held that they failed to meet the requisite burden of proof. Moreover, it is clear from the facts above stated that the gaming table was observed in open view at a time when the officers were lawfully on the premises conducting the previous searches. It has been held many times that where contraband arth cíes are identified without a trespass on the part of the officer, there is not a “search” that is prohibited by the constitution. Russell v. State, 240 Ark. 97, 398 S. W. 2d 213; United States v. Lee, 274 U. S. 559, 47 S. Ct. 746, 71 L. Ed. 1202 (1927); Ker v. California, 374 U. S. 23, 83 S. Ct. 1623, 10 L. Ed. 2d 726 (1963). From all that appears of record, the table could have lawfully been seized at the time it was observed. The officers should not be condemned for taking the added precaution of obtaining a jsearch warrant. The table and supporting apparatus were properly admitted into evidence.

(2) Appellants next contend that the evidence seized was not burglary tools or gambling equipment. We can quickly dispose of this contention insofar as it relates to the gambling equipment, as we feel that a clear case for the jury was made by the State. Appellants rely on Burnside v. State, 219 Ark. 596, 243 S. W. 2d 736, in which we reversed a conviction where the evidence involved consisted of a tape recorder, a ticker or teletype machine and a radio transmitter. We there said that where the device is not a gaming device per se, there mnst be evidence that the equipment was used as a gambling device before there can be a conviction under Ark. Stat. Ann. § 41-2001.

We feel that appellants reliance is misplaced, as the table here involved was per se a gambling device. The sheriff testified that, when he entered the trailer during the course of the first search, he saw “gambling equipment.” He also called it a “crap table.” Further, he described the device as a “ * * large table * * * with large batteries and this remote control which mechanized the top of the table.” He also referred to a “diagram” and “instructions of how to hook it up.” Pictures introduced in evidence indicated that it was no ordinary table but was improvised so that a metal bar beneath the top could be magnetized at will with a control device. The top of the table was boxed in by a rim which was approximately eight inches higher than the surface of the table. While there was some evidence that the table and the supporting apparatus were not so connected as to be presently operative, we deem this insignificant. The statute prohibits the keeping of any gaming device. The fact that the déviee is inoperative as a “crooked” or “rigged” device has no bearing on its status as a gaming device, although the fact that a device is peculiarly wired and outfitted is evidence that it is a gaming device. Under the facts of this case, we feel that the question was properly submitted to the jury.

Appellants contended that the evidence seized as a result of the first and second searches did not constitute burglary tools. This contention has caused us much concern, as it has brought to our attention an unsettled area of our law. There are three cases, involving the sufficiency of the evidence to sustain a conviction for possessing burglary tools, which we feel are in need of reconciliation. These oases are: Satterfield v. State, 174 Ark. 733, 296 S. W. 63; Prather v. State, 191 Ark. 903, 88 S. W. 2d 851, and Gossett v. State, 242 Ark. 593, 414 S. W. 2d 631.

In the Satterfield case the tools involved were: two bolt cutters, four common hoe files, one ordinary hammer, two Stilson wrenches, a flashlight and a pistol. As noted in the Gossett case, the conviction there was reversed. We note the statement in the opinion to the effect that the tools were not burglary tools, but we do not take this ease to stand for the proposition that the set of tools there involved were incapable, as a matter of law, of being held to be burglary tools. Our interpretation is guided by the court’s action in affirming the overruling of a demurrer to the indictment and in remanding the case for a new trial. In holding that the demurrer to the indictment was properly overruled, the court said, in effect, that the charge of crime was sufficient. Beversal was because of a deficiency in the proof. Therefore, the case was remanded in order to give the State a chance to show that ¡these were tools that were “adapted, designed or commonly used” by burglars for the purposes named in the statute rather than tools that might be so used. The act of remanding the case for a new trial clearly indicates that the court felt that, if properly shown to be commonly used by burglars, the tools could be classified as “burglar tools.”

In the Prather case the officers seized a sledge hammer with a shortened handle, a shortened punch, an ordinary screw driver, caps used to set off explosives, nitroglycerin, gloves or mittens, electric fuses, four pistols with extra cartridge clips, and a flashlight. While this array of tools might more easily be shown susceptible to use by burglars in their trade than one less nefarious, the court laid its emphasis on language to the effect that a fact question was involved:

“Perhaps, no fixed rule or announcement should he made as a criterion for guilt or innocence, except that in every instance the matter under investigation should be determined as a matter of fact, controlled or explained by all of the conditions, circumstances, and such pertinent collateral matters as might he present.” [Emphasis added]

The court noted that the fact that the tools might he capable of legal uses was not controlling. The State is entitled to establish facts tending to prove that the defendant had in his possession “such a group or selection of tools, devices, or materials as might he found to be more nearly suitable for breaking into houses, or opening locked doors and windows, or by explosive forces opening safes or strong boxes, where valuables might be stored or kept, than for any lawful purpose.” In conclusion it was said that “a charge of this kind is like any other charge, one that may be or may not be susceptible of proof; in other words, it is a question of fact, which, when proved beyond a reasonable doubt, and so determined by a jury, there is little left for review on appeal.”

Gosser v. State, supra, involved the seizure of combination of tools consisting of a tire tool, two screw drivers, a lug wrench and a bar used to remove tires from car wheels. The conviction was there reversed, the court noting that all the tools were such as were commonly used in connection with the operation of automobiles, except possibly screw drivers, which are common implements in every home or shop. There was an understandable absence of any testimony tending to show that the tools were “more nearly suitable” for use by burglars than for lawful purposes. On the facts of the case, the import of the statement that Prather was “not controlling or even persuasive” is clear.

A consideration of these three cases gives rise to certain general principles applicable in burglary tool eases where the question is the sufficiency of the evidence :

1. When it is shown, or is obvious, that the particular combination or group of tools in question is such that their use in lawful occupations or for legitimate purposes is common and ordinary and that many people might well be expected to have such a combination of tools in their possession at any time in the circumstances under which they are found, their possession cannot be a violation of the statute, regardless of the fact that they might conceivably be used for breaking, and entering buildings or any of the other structures named in the statute.

2. When it is shown that the particular combination of tools consists of implements commonly used for the purpose of burglarizing any of the structures named in the statute and it is not shown, and is not obvious, that the particular combination of tools is such as is commonly used in any lawful occupation or in general use for legitimate purposes, such that the tools will likely be found in the lawful possession of numerous persons, in the circumstances under which they are found, a jury question as to whether the possession of the tools is in violation of our statute arises.

In the case at bar, the sheriff, who was the only witness to testify at the trial, stated that, any one of the tools found might be used in some ordinary, lawful occupation. However, he also testified that such a combination of tools was adapted to, and commonly used for, breaking and entering. Even though he stated that a safe or vault could not be entered with these tools without a hammer and punch, he stated specifically that they were sufficient to afford entry into a building and were commonly used for that purpose. There is nothing in the record to indicate that this particular combination of tools was common to any particular occupation. While there were no explosives or weapons in the combination here, the court in Prather clearly pointed ont that no particular item or circumstance determined whether the combination constituted the prohibited tools.

It is notable that among the items found there was a pair of rubber gloves. Gloves were also found among the tools in Prather, and it was there pointed out that, while gloves are used in many lawful pursuits, it was common knowledge that gloves are employed by burglars to avoid leaving finger prints. We find that a jury case was presented. The jury having determined that burglary tools were involved, there is “little left for review on appeal.”

(3) Appellants’ next contention is that the trial court erred in failing to discharge the jury and declare. a mistrial after the prosecuting attorney mentioned the gambling device which had been in the lobby of the courthouse since the day before the trial. The record shows that the trial of this case had been scheduled for the day before, but that it had to be rescheduled due to the crowded docket. We feel that the trial court properly denied the motion for a mistrial for the reason that there is nothing to indicate that appellants were prejudiced by the presence of the table in the courthouse. There is no evidence that any of the. jurors saw the table, which had to be left on the first floor of the courthouse because of its weight. Further, as the jury was later permitted to view the table, we fail to see how appellants were prejudiced, even if we assume that it had beén seen prior to trial.

(4) Appellants claim prejudicial error in the trial court’s failure to declare a mistrial after Sheriff Davis, in answer to the question, “You knew Mr. Frazier?”, replied, “I knew him by reputation. I knew about him in Woodruff County.” The basis for their contention is that the reply, in the context used, indicated that the sheriff had reference to criminal activity of appellant Frazier. We cannot agree. The innuendo urged by appellants would require a strained view of a common expression used to signify merely that a person is known only casually. We cannot say that such expression amounted to evidence of bad character or that appellants were prejudiced in any way.

(5) Appellants assert as error the giving of two instructions in terms of Ark. Stat. Ann. §§ 41-1006 (possession of burglary tools) and 41-2001 (keeping a gambling device) on the alleged grounds that the instructions amounted to comments on the evidence and that the court, by so wording the instructions, ruled as a matter of law that the appellants were guilty of the felonies charged. We do not get to the merits of this contention for the reason that the alleged error has not been properly preserved for appeal. The record reveals that appellants objected generally to the trial court’s charge and specifically to the two instructions on the ground that, as a matter of law, thé evidence seized was not burglary tools or gambling equipment. There was no other specification of error. As to the specific objection, we have held under point (2) that the evidence was sufficient to go the jury. The allegations of error now asserted for reversal were not embraced in the objections to the instructions, nor were they carried forward in the motion for a new trial. Under these circumstances, the matters asserted are not now subject to review by this court. Cassell v. State, 242 Ark. 149, 412 S. W. 2d 610; Ford v. State, 222 Ark. 16, 257 S. W. 2d 30.

(6) We next consider appellants’ contention that statements by the prosecuting attorney in his closing argument were prejudicial in that they referred to appellants’ failure to testify. This court has said in numerous cases that a defendant’s election not to testify in his own behalf is a privilege which the law affords him, and that it is reversible error for the prosecutor to use words and phrases calculated to call such fact to the jury’s attention. Miller v. State, 239 Ark. 836, 394 S. W. 2d 601; Miller v. State, 240 Ark. 590, 401 S. W. 2d 15. In the two cases just cited, the reference to the fact that appellants failed to take the stand was clear. In the first case the prosecutor argued the instructions of the trial court and said: “You are instructed this is a privilege to them to either testify or not to testify. ’ ’ In the latter case, the statement was: “The defendant has chosen not to take the stand and that is his privilege * * Reversal in such instances is clearly required, as there could scarcely be a more obvious comment on the defendants’ failure to testify. The statements involved in the case at bar, however, are more nearly akin to those in Davis v. State, 96 Ark. 7, 130 S. W. 547, and Cascio v. State, 213 Ark. 418, 210 S. W. 2d 897. In the former case, the-prosecutor had said: “* * * it is undisputed and undenied and he cannot deny it.” This court held that the statement was an expression of opinion as to the weight of the testimony, not a comment on defendant’s failure to take the stand. In the Cascio case, the statement was: “What explanation have they made of that?” which we held not to be susceptible of the meaning urged by the appellant. In the present case, the prosecuting attorney, in the course of his closing argument, made the following statements: The case was “uncon-tradicted and undenied”; “I will leave that because the record is bare”; “There is nothing else in here except the testimony and proof of the sheriff”; “There has been no proof as to who [certain equipment] belonged to, the testimony was that nobody would claim it, nobody has acquired it, nobody has come here today to acquire it”; and “If I was picked up with [the equipment introduced into evidence], there would be some explanation of what it was doing in my car and what I was doing with it.” We feel that the expressions are all attributable to the weight to be given to the evidence, and that in no instance was the jury’s attention called to the fact that appellants failed to testify.

Under their point number IV, appellants contended that there had been no voluntary consent to the searches described in our point number (1). In view of the fact that we have held the searches legal on other grounds, we find it unnecessary to take up that argument.

The judgment is affirmed.

BrowN, J., concurs; Jones, J., dissents in part; Byrd, J., dissents.


author: J. Fred Jones, Justice.

text:
    James G. CHESSER v. George KING and Memphis Concrete Silo Co.
    5-4585
    428 S. W. 2d 633
    Opinion delivered June 3, 1968

      Pope, Pratt, Shamburger, Buffalo & Ross, for appellant.

      Frierson, Walker & Snellgrove, for appellees.
   J. Fred Jones, Justice.

This is an appeal by James G. Chesser from a summary judgment of the Lawrence County Circuit Court in favor of George King and Memphis Concrete Silo Company. Chesser was the plaintiff in the trial court and King and the Silo Company were co-defendants.

The facts are undisputed and, as established by the pleadings, and by the affidavits and depositions in support of the motion for summary judgment, reveal that the appellee Silo Company is a Tennessee corporation engaged in the manufacture of concrete silos of different heights, widths, and capacities, which are sold through agents to various customers. The silo walls are erected by the Silo Company from four inch thick blocks, or staves, prefabricated in Memphis and the silos are erected on foundations furnished by the purchaser.

Certain of these prefabricated concrete blocks contain steel bars with right angle bends so that in the erection of the silo, or one of a group of silos, the blocks containing the steel bars are placed one over the other to form a ladder ten inches wide with rungs of 9/16 steel extending five inches from the face of the silo wall and being from fourteen to fifteen inches apart.

Although the ladder is primarily placed for the use and benefit of the Silo Company employees in erecting the silo, when the silo is completed the ladder remains on the wall available for whatever use the owner may make of it. Since these ladders appear on the wall of each silo, or. on one silo in each series, they have become accepted in the trade by the purchasers of silos as simply a part of the silo.

The Arkansas Rice Growers Association purchased, through appellee King, four such tanks or silos to be erected at Tuckerman, Arkansas. The silos were erected by the Silo Company and turned over to the purchaser. The appellant, while employed by the association owner, was climbing the ladder for purposes of changing a grain spout near the top of the silo and slipped and fell from the ladder to the floor of the silo housing and was injured.

Appellant’s action was based on negligence in erecting the ladder, negligence in the manufacture and supplying of a negligently designed product and on breach of implied warranty.

The portion of appellant’s complaint pertinent to this appeal, as abstracted, is as follows:

“That the defendant, Memphis Concrete Silo Company, through its agents, particularly George King, was negligent in the following respects:
a. In failing to supply and erect parallel sides to said ladder as required by the Arkansas Labor Safety Code.
b. In failing to extend the rungs of said ladder to a distance of at least 6% inches from the face of said silo as required by the Arkansas Labor Safety Code.
c. In failing to supply and erect a ladder with rungs measuring at least 15 inches across the front as required by the Arkansas Labor Safety Code.
d. In failing to supply and erect a cage or basket guard to said ladder as required by the Arkansas Labor Safety Code.
That the defendant knew, held themselves out as knowing, or by the exercise of reasonable diligence should have known that the ladder was constructed, designed and installed in a manner that violated the requirements of the Arkansas Labor Safety Code. That these acts of negligence created an imminently dangerous, unsafe and hazardous condition to persons using said ladder. That the defendants were further negligent in manufacturing, supplying and erecting a negligently designed product. That said acts were a direct and proximate cause of the injuries sustained by the plaintiff.”

On appeal, the appellant abandons his theory of negligence in the erection of the silo and he does not argue breach of warranty. Appellant’s contention here is that the trial court erred in granting appellees ’ motion for summary judgment when the complaint was predicated upon the theory that the appellee Silo Company was negligent in manufacturing and selling negligently designed product.

The record is clear that appellee King only sold the silo and checked upon its erection for the appellee Silo Company, and had nothing to do with its manufacture or design. As to the appellee Silo Company, we do not agree with appellant that the trial court erred in directing a summary judgment for the appellees.

While the direct liability of the manufacturer to the injured consumer iu products liability cases is well established in Arkansas (see International Harvester Co. v. Land, 234 Ark. 682, 354 S. W. 2d 13), we do not have the authority or inclination to extend the rules of negligence to make a manufacturer liable in a tort action for failure to meet the specifications of rules promulgated under the Arkansas Labor Safety Code. The entire statute (Ark. Stat. Ann. §§ 81-101 — 81-119 [Repl. I960]) is directed to employers and employees in relation to working conditions, safety and enforcement of the labor laws in connection therewith, and it is not shown to us that these statutes apply, or were intended to apply, to manufacturers in the design of products to be sold on the open market.

In review of a summary judgment, we must view the motion in the light most favorable to the party resisting the motion. In the case at bar, even if we should find the allegation of negligence to be as to the specific acts and not the violation of the safety code, with that violation being only evidence that the specific acts were negligent, summary judgment was proper.

The general rule in cases of this nature is stated in Memphis Asphalt & Paving Company v. Fleming, 96 Ark. 442, 132 S. W. 222, where appellant contracted with a city improvement district to construct a sidewalk alongside a street and across a branch, but did not construct a guard rail or barrier where the sidewalk crossed the branch, nor did the contract call for one. Appellee was injured by falling from the sidewalk into the branch and the negligence alleged was the failure to construct a guard rail. Appellant contended that the sidewalk was constructed in accordance with the contract and that the work was completed and accepted before the injury occurred. This court reversed the trial court and dismissed the cause of action, stating that:

“The general rule is that after the contractor has .turned the work over and it has been accepted by the proprietor, the contractor incurs no further liability to third parties by reason of the condition of the work, but the responsibility, if any, for maintaining or using it in its defective condition is shifted to the proprietor. Thompson on Negligence, 686, and cases cited; First Presbyterian Congregation v. Smith, 163 Pa. 561, 26 L. R. A. 504; Daugherty v. Hergog, 145 Ind. 255, 32 L. R. A. 837; Salloitte v. King Bridge Company, 58 C. C. A. 469.
It would not come within the qualifications to the rule that the work was a nuisance per se, or was turned over by the contractor in a manner so negligently defective as to be eminently dangerous to third persons.
‘The rule in this connection does not require a formal acceptance of the contractor’s work. The liability of the contractor will cease with a practical acceptance after completion of the work.’ Read v. East Providence Fire District, 20 R. I. 574, 40 Atl. 760.”

The above rule and exceptions have been upheld by this court in the later cases of Canal Construction Company v. Clem, 163 Ark. 416, 260 S. W. 442, 41 A. L. R. A; and Reynolds v. Manley, 233 Ark. 314, 265 S. W. 2d 714. Under the Canal Construction case, supra, the contractor cannot be held liable even if it be conceded that the record shows substantial evidence of such negligence, and the contractor remains-liable only to the proprietor for a breach of his contract; with the responsibility to others, if any, for maintaining or using the work product in its defective condition being shifted to the proprietor after acceptance.

In the ease at bar, appellees have shown by affidavits and depositions, submitted in support of their motion for summary judgment, that they contracted to do the work with the Arkansas Rice Growers Association; that the work was carried out in accordance with the specifications contained in the contract; that the work was completed and turned over to the owner on July 18, 1964; that appellees inspected the silo in September 1964 and have not been on the job since; that the work was accepted by the owner and final payment made prior to December 22, 1964, when appellant was injured; and that the size and manner of construction of the ladder is open and visible to anyone who looks at it.

Under these facts, we cannot say that the general rule does not apply, even in the light most favorable to appellant. Neither do the recognized exceptions apply, as it cannot be said here that the ladder is a nuisance per se, or that it is erected by the appellee in such a manner as to be immediately and imminently dangerous to third persons, especially where there is no showing of a latent defect in the constrnction.

In Mid-South Insurance Company v. First National Bank of Fort Smith, 241 Ark. 935, 410 S. W. 2d 873, this conrt stated:

“In Epps v. Remmel, 237 Ark. 391, 373 S. W. 2d 141, (1963), this conrt approved the following statement from United States v. Dollar, 100 F. Snpp. 881 (1951); ‘The motion [for summary judgment] requires the opposition to remove the shielding cloak of formal allegations and demonstrate a genuine issue as to a material fact.’
In the face of documentary support for summary judgment, Mid-South would force the case to trial by merely contending that an issue exists, without any showing of evidence. This would defeat the whole purpose of summary judgment procedure.”

Since appellant has not disputed appellees ’ facts by submitting affidavits or depositions to refute the motion for summary judgment, we find no genuine issue as to a material fact and under the general rules stated, a summary judgment as a matter of law was proper. The judgment of the trial court must be affirmed.

Affirmed.


text:
    Herbert B. VAUGHT v. Vernard ROSS
    5-4602
    428 S. W. 2d 631
    Opinion delivered June 3, 1968

      Terral, Rawlings, Matthews & Purtle, for appellant.

      J. Marvin Holmes, for appellee.
   J. Fred Jones, Justice.

Appellant, Herbert Vaught, brought suit against the appellee, Vernard Ross, to recover damages in the amount of $1,449.75 suffered in an automobile collision with appellee’s fourteen year old son, Bobby, who was driving appellee’s automobile. The complaint alleged that the negligence of Bobby was imputed to his father, Vernard Ross. Appellee demurred to this complaint and appellant promptly amended it and specifically pleaded that Bobby was driving the car with his father’s permission and that the negligence of Bobby was imputed to his father, Vernard Ross, under the provisions of Ark. Stat. Ann. § 75-315 (Supp. 1967), as amended.

The trial court, after hearing arguments of counsel, sustained the demurrer, from which comes this appeal.

Arkansas Statute Annotated § 75-315 (Supp. 1967), is as follows:

“ (a) The application of any person under the age of eighteen (18) years for an instruction permit or operator’s license shall he signed and verified before a person authorized to administer oaths hy both the father and mother of the applicant, if both are living and have custody of him, or in the event neither parent is living then hy the person o'r guardian having such custody or hy an employer of such minor, or in the event there is no guardian or employer then by any other responsible person who is willing to assume the obligation imposed under this Act [§§ 75-301 — 75-311, 75-315 — 75-321, 75-324— 75-348] upon a person signing the application of a minor.
(b) Any negligence or wilful misconduct of a minor under the age of eighteen (18) years when driving a motor vehicle upon a highway shall he imputed to the person who has signed the application of such minor for a permit or license, which person shall be jointly and severally liable with such minor for any damages caused hy such negligence or wilful misconduct.
(c) If any person who is required or authorized hy Subsection (a) of this Section to sign and verify the application of a minor in the manner therein provided, shall cause or knowingly cause or permit his child or ward or employee under the age of eighteen (18) years to drive a motor vehicle upon any highway, then any negligence or wilful misconduct of said minor shall he imputed to such person or persons and such person or persons shall he jointly and severally liable with such minor for any damages caused by such negligence or wilful misconduct. The provisions of this Subsection shall apply regardless of the fact that a driver’s license may or may not have been issued to said minor. For purposes of this Act, a minor is hereby defined to be any person who has not attained the age of eighteen (18) years.
(d) The provisions of this Section shall apply in all civil actions, including but not limited to both actions on behalf of any actions against the person or persons required or authorized by Subsection (a) of this Section to sign the application in the manner therein provided.”

Appellant contends that “Subsection (c) clearly states that if the person required to sign the application for a minor under 18 failed to do so, he is liable as though he had signed the application, the only restriction being that the parent have knowledge that the minor is driving a vehicle,” and that since this was all alleged, the complaint is not demurrable and thus the trial court erred.

Appellee contends that “[the statute] provides that the ‘negligence or wilful misconduct’ is imputed to the ‘person who is required or authorized ... to sign and verify the application.’ In this case there is no allegation that an application for a driver’s license has been made, therefore, there is no one to whom the ‘negligence or wilful misconduct’ can be imputed by virtue of a signature” and thus the trial court properly sustained the demurrer.

We are of the opinion that the appellant is correct and that the trial court erred. Both appellant and appellee cite, as the only case relied on, our decision in Richardson v. Donaldson, 220 Ark. 173, 246 S. W. 2d 551 (1952). Only subsections (a) and (b) of § 75-315 were in effect when the decision in the Richardson case was handed down by this court. The Richardson case held, and rightly so, that negligence could not be imputed under § 75-315 to the father of a sixteen year old girl involved in a collision who did not have, and never had, a driver’s license, because subsection ,(b) imputed liability only “to the person who has signed the application of such minor for a permit or license.” Thus, the statute at that time clearly did not cover persons who had not signed an application. The Richardson case also stated:

“... [T]he negligence of a child cannot he imputed to a parent merely because of the parental relationship, in the absence of a statute so declaring.
. . . [W]e have no such statute, applicable to a case like the one at bar. ...” (Emphasis supplied).

After the Richardson case, the legislature passed Act 278 of 1955, Section 2 of which was digested as Ark. Stat. Ann. § 75-342.1 (Repl. 1957). This statute, § 75-342.1, was effectively the same as subsection (c) of the present § 75-315, with the exception that it did not apply where no driver’s license had been issued. Then in 1961, by Act 495 of 1961, the legislature repealed § 75-342.1 and re-enacted its provisions into subsection (c), also making subsection (c) applicable to a case where no driver’s license had been issued, and adding a new subsection (d) giving us our current statute, § 75-315.

Subsection (c) is clear and unambiguous. As it now stands, the negligence or willful misconduct of a minor is clearly imputed to any person required or authorized to sign and verify the application of a minor for a driver’s license or permit, whether he does so or not, if he shall cause, or knowingly cause, or permit such minor to drive a motor vehicle upon any highway.

The intention of the legislature, as well as the emergency it recognized, is clearly stated in the emergency clause to Act 278 of 1955, supra, which is now subsection (;c) of § 75-315, supra, when the legislature said:

“It is hereby determined that the present laws pertaining to the responsibility of parents for minors under the age of 18 who drive automobiles is inadequately defined and would permit a parent who violates the law by failing to sign his child’s driver’s license application to thus escape liability for such child’s acts while driving.”

Arkansas Statute Annotated § 75-342 (Repl. 1957) makes it a misdemeanor for a person to cause or knowingly permit his child or ward to drive a motor vehicle upon any highway in violation of any provision of the Uniform Motor Vehicle Operator’s and Chauffeur’s License Act, Ark. Stat. Ann. § 75-301, et seq. Subsection (c) of § 75-315, supra, also fills the void indicated by the statement “in the absence of a statute so declaring” as stated in the Richardson case, supra.

We conclude that the trial court erred in sustaining the demurrer and that this case should be reversed and remanded for proceedings not inconsistent with this opinion.

Reversed and remanded.


text:
    Patricia POOLE v. STATE of Arkansas
    5345
    428 S. W. 2d 628
    Opinion delivered June 3, 1968

      J'ohn 8. Choate and Burl C. Rotenberry, for appellant.

      Joe Purcell, Attorney General; Don Langston, Asst. Atty. Gen., for appellee.
   J. Fred Jones, Justice.

Appellant, Patricia Poole, was charged in Little Rock Municipal Court with the offense of failure to vacate under Ark. Stat. Ann. § 50-523 (1947). After her plea of not guilty was entered, appellant was tried and found guilty in municipal court and was assessed a fine of $15.00 and costs of $10.50. Upon appeal to the Pulaski County Circuit Court, appellant’s motion to dismiss was denied and the judgment of the Little Rock Municipal Court was affirmed. On appeal to this court, appellant relies on the following point for reversal:

“Appellant’s conviction should he reversed and Ark. Stat. Ann. 50-523 declared to he unconstitutional since it constitutes an invalid and unreasonable exercise of the police power of the state of Arkansas in that the subject matter thereof is outside the scope of the public health, safety and general welfare and interest, and consequently the enforcement of Ark. Stat. Ann. 50-523 deprives appellant of rights secured to her by the due process clause of the Fourteenth Amendment to the United States Constitution.”

The facts are stipulated and not in dispute. On April 14, 1967, appellant entered into an oral agreement with Mr. Frank Seymour to rent an apartment located at 4408 West 28 Street in Little Rock on a weekly basis at the rate of $22.00 per week. On June 23, 1967, at which time appellant was one week and six days behind in her rent, she was served with a ten day notice to vacate the apartment for nonpayment of rent. On July 20, 1967, some 28 days after service of the notice to vacate, appellant had still not moved and was charged under Ark. Stat. Ann. § 50-523 (1947), which is as follows :

“Any person who shall rent any dwelling house, or other building or any land, situated in the State of Arkansas, and who shall refuse or fail to pay the rent therefor, when due, according to contract, shall at once forfeit all right to longer occupy said dwelling house or other building or land. And if, after ten [10] days notice in writing shall have been given by the landlord, his agent or attorney, to said tenant, to vacate said dwelling house or other building or land, said tenant shall wilfully refuse to vacate and surrender the possession of said premises to said landlord, his agent or attorney, said tenant shall be guilty of a misdemeanor and upon conviction thereof before any justice of the peace, or other court of competent jurisdiction, in the County where said premises are situated, shall be fined in any sum not less than one dollar [$1.00], nor more than twenty-five dollars [$25.00] for each offense, and each day said tenant shall wilfully and unnecessarily hold said dwelling house or other building or land after the expiration of notice to vacate, shall constitute a separate offense.”

We cannot agree with appellant that § 50-523, supra, is unconstitutional. Its provisions have been the law in this state since 1901 and its constitutionality has never been judicially questioned. The courts may not review the wisdom, discretion, or expediency of the legislature in the exercise of the powers it possesses, Berry v. Gordon, 237 Ark. 547, 376 S. W. 2d 279; Dabbs v. State, 39 Ark. 353, and a statute will not be struck down by the courts unless it is obviously unconstitutional. All reasonable doubt must be resolved in favor of such constitutionality, there being a presumption in favor of validity. Berry v. Gordon, supra; McEachin v. Martin, 193 Ark. 787, 102 S. W. 2d 864. Furthermore, a statute effective over a long period of time, with its validity being unquestioned by bench or bar, although not conclusive, is highly persuasive of the validity of such statute. McEachin v. Martin, supra; 16 C. J. S., Constitutional Law § 99, p. 443.

It seems clear to us that § 50-523, supra, was enacted as a valid exercise of the police power of this state. The right of an individual to acquire and possess and protect property is inherent and inalienable and declared higher than any constitutional sanction in Arkansas, Young v. Gurdon, 169 Ark. 399, 275 S. W. 890, and the public health, safety and welfare is always threatened when a person wrongfully trespasses upon another person’s property in Arkansas. Especially is this true when the trespasser persists in the trespass and defies the owner’s right to possession. Whether such trespass may become a matter of regulation through the police power depends upon the exercise of that power hearing a real and substantial relationship to an end which promotes or protects the public health, safety or welfare.

In the case at bar appellant’s right to possession of the property terminated upon the expiration of the week for which she had it rented. Appellant claims no title or right in the property and claims no right to retain its possession. She does not base her continued possession upon any claim of right whatever, except a right to force the owner to the expense of bond, attorney’s fee, and irrecoverable court costs in civil litigation. The option in pursuing a civil remedy lies with the property owner and any defense available to appellant in a civil action is still available under the penal .code. Section 50-523, supra, by its provisions, relates only to one who “shall refuse or fail to pay the rent therefor, when due, according to contract” and after ten days notice to vacate, “shall wilfully refuse” to do so. Thus limited in its scope, § 50-523 relates only to one who has become a trespasser on property as a result of giving up all legal rights to its possession and after ten days notice wilfully refusing to remove therefrom with the necessary criminal intent to deprive the rightful owner of his property.

No one can seriously argue that wrongful trespass does not come within the police power of the state, and the use of the police power to prevent such wrongful acts which disrupt the well-being, peace, happiness/, and prosperity of people, surely bears a real and substantia] relationship to an end which promotes the public health, safety and welfare. The use of police power in dealing with unlawful trespass is not so unreasonable as to amount to a violation of substantive due process, and ten days notice to vacate premises one holds wrongfully is more than liberal in keeping with our standards of procedural due process.

We cannot say that § 50-523 is unconstitutional as an invalid exercise of the police power of this state or that it deprives appellant of her right of due process. Therefore, the judgment of the trial court is affirmed.


author: Conley Byrd, Justice.

text:
    WESTERN SURETY COMPANY v. WASHINGTON COUNTY, ARKANSAS et al
    5-4392
    429 S. W. 2d 99
    Opinion delivered June 3, 1968
    [Rehearing denied July 15, 1968.]

      Shaw, Jones & Shaw, for appellant.

      Murphy & Burch, Wade & McAllister, E. J. Ball, and James W. Gallman, for appellees.
   Conley Byrd, Justice.

This appeal by Western Surety Company against appellee Washington County, Arkansas, and numerous intervenors, (unpaid suppliers of materials and labor), arises out of road construction contracts between the county and the state of Arkansas in which the county acted as contractor in oHer to obtain federal matching funds. The complaint alleges that Western Surety made a performance bond with the state of Arkansas, agreeing to pay all claims for which the county became liable under the road projects involved.

The county, in performance of the contracts, incurred liabilities of $148,319.58 to suppliers of materials and labor, including intervenors herein. Before presentation of the claims the county ran out of funds. After a check by the State Auditor’s office it was determined that the county had a balance of $53,455.39 in its road fund and $17,854.35 in its general fund. Appellant paid or compromised the many claims filed on the projects guaranteed by it, taking in each case an assignment for the amount paid, for a total of $118,821.14. Typical of the many assignments is that of R. A. Young & Sons, Inc., as follows:

“That I, C. H. Young, President, and J. D. Griffin Secretary of R. A. Young & Sons, Inc., for and in consideration of the payment to R. A. Young & Sons, Inc. of the sum of $1,279.85 by Western Surety Company, do hereby transfer, set over and assign to the said Western Surety Company all of its right, title and interest in and to the claim which R. A. Young & Sons, Inc. has against Washington County, Arkansas, said claim against Washington County, Arkansas being more particularly described in a certain Complaint filed in the Washington County Circuit Court, same being Circuit No. 5096, Washington County Circuit Court, and as described in Order as filed on the . day of ., 196..., in case No. styled R. A. Young & Sons, Inc. vs. Western Surety Company, filed in the Circuit Court of Washington County, Arkansas, which Order held that such claim or claims were held to be true, correct and just claims against Washington County, Arkansas. Said claim or claims arise for materials furnished by R. A. Young & Sons, Inc. to the said Washington County, Arkansas during 1964 on Job C-7-48, Federal Aid Project S-1194(l); Job C-72-41 and C-72-50, Federal Aid Projects S-1189 and S-1189(l) and S-1189(2); C-72-47, Federal Aid Project S-1193 and S-1193(a); Job C-72-48, Federal Aid Project S-1194 and S-1194(l); Job C-72-49, Federal Aid Project S-1195(l) and S-1195(2). The payment of these claims by Washington County has been refused by Order of the Washington County Judge in . Payment of this sum of $1,279.85 and assignment by us acting by and through the authority granted as President and Secretary respectively of R. A. Young & Sons, Inc. does hereby satisfy said claim as to Western Surety Company, it being understood that such payment to the said R. A. Young & Sons, Inc. in no way impairs Western Surety Company’s right to pursue reimbursement of said sum paid herein as surety on Washington County surety bond against Washington County, it being the intention of this instrument, i. e., Assignment, to place Western Surety Company in the same position as R. A. Young & Sons, Inc. insofar as R. A. Young & Sons, Inc.’s claim against Washington County is concerned up to and including the sum of $1,279.85; R. A. Young & Sons, Inc. agreeing by payment of said sum by Western Surety Company to allow and grant to Western Surety Company full authority to demand and receive to Western Surety Company’s own use upon payment thereof up to $1,279.85, or any part thereof, by Washington County or any other person, firm, or corporation to Western Surety Company, and to give and discharge for the same as if the same had been paid by Washington County to R. A. Young & Sons, Inc.
“R. A. Young & Sons, Inc. does hereby authorize Western Surety Company in its name but at Western Surety Company’s own expense and cost to pursue the claim against Washington County, Arkansas for which it, R. A. Young & Sons, Inc., originally filed claim or claims against the said Washington County but for which, by reason of the Order of the Washington County Court, said claim or claims were disallowed requiring payment of said claim or claims by Western Surety Company as surety for Washington County, Arkansas.
“And R. A. Young & Sons, Inc. does hereby agree to acknowledge; pursue and execute all other necessary legal processes on behalf of itself against Washington County for and on behalf of said Western Surety Company against Washington County, Arkansas, up to and including the total amount of $1,279.85. Said enforcement or proceedings on behalf of Western Surety Company to be at Western Surety Company’s own expense or cost -with out recourse on R. A. Young & Sons, Inc.”

The allegation with respect to the assignments is as follows:

“That Western Surety Company by virtue of its performance of its surety bond and the payment of the above set forth claims and the taking of Assignments by the laborers, materialmen, and suppliers has become sübrogated and substituted for these laborers, material-men, and suppliers.”

After sustaining the demurrer and dismissing appellant’s complaint, the trial court directed that that portion of the intervenors’ claims not assigned to appellant, totaling $29,498.44, be paid in full from the county road fund. Appellant appeals, contending that its complaint stated a valid cause of action upon the assignments and that the trial court erred in ordering payment of $29,498.44 from the county road fund to the individual claimants without making a pro rata distribution among all claimants, including appellant. The interven-ors contend (1) that the demurrer was properly sustained, (2) that Western Surety is estopped to contend that Amendment 10 is inapplicable to its claim, and (3) alternatively that both the general fund and the road fund should be ordered paid out on a pro rata basis.

Our cases specifically recognize the right of assignment of a claim against a county. McKim v. Highway Iron Products Co., 181 Ark. 1121, 29 S. W. 2d 682 (1930). The complaint certainly states a cause of action against the county for the pro rata payment of the balance in the county road fund upon the assignment of the claims against the county.

The record shows that, notwithstanding the county’s alleged lack of funds, all of the materialmen and suppliers filed claims with the county which were disallowed under Amendment 10 in that the claims exceeded revenues for 1964. All claimants promptly filed appeals to the circuit court, where the claims were allowed. The allowance of the claims by the circuit court was in effect a judgment in favor of claimants and against the county road funds to the extent of the 1964 revenues. Logan County v. Anderson, 202 Ark. 244, 150 S. W. 2d 197 (1941). Consequently, the alleged invalidity of the claims under Amendment 10 was there determined and became final and not subject to a collateral attack. Therefore, we hold that the trial court erred in sustaining the demurrer and in ordering the funds to be paid out to the intervenors without pro rating the same with appellant.

It has been suggested by the intervenors, as an alternative argument, that under Ark. Stat. Ann. § 17-603 (Repl. 1956), the county general fund should be combined with the county road fund for the purpose of paying claims. We question whether the statute authorizes the trial court to go this far, but do not reach the point in this instance because the intervenors took no appeal from the action of the trial court.

Reversed and remanded.

       Amendment 10 voids all contracts of counties in excess of current revenues.