text:
    Aluminum Company of America v. Arkansas Public Service Commission, et al.
    5-925
    289 S. W. 2d 889
    Opinion delivered May 7, 1956.

      Reuben Goldberg and Gordon E. Young, for appellant.

      John R. Thompson, W. S. Mitchell and Edward L. Wright, for appellee.
   Ed. F. MoFaddin, Associate Justice.

The issue here posed is, the effect of escalator clauses being included in a petition for rate increase. A somewhat similar question was presented in the recent case of Monsanto Chemical Co. v. Robinson, 225 Ark. 1006, 290 S. W. 2d 6 (opinion delivered February 20, 1956). In the present case the appellant is the Aluminum Company of America; and A. B. Green Fire Brick Company and Malvern Brick & Tile Company, designated as intern enors, also are on the same brief with the appellant. In addition to referring to these mentioned parties as “appellant” and “inter-venors,” we will refer to them collectively as “Industrial Consumers. ’ ’

In the present case: on March 14, 1955, Arkansas-Louisiana Gas Company (hereinafter called-“'Gas Company”) filed with the Arkansas Public Service Commission (hereinafter called "Commission”), Schedule 3-B, to be effective April 15, 1955, which schedule was a rate increase and made the price of gas to large industrial consumers as follows:

MONTHLY CONSUMPTION RATE:

First 1,000 M.C.F. at $0.3000 per M.C.F.

Next 4,000 M.C.F. at 0.2600 per M.C.F.

Next 5,000 M.C.F. at 0.2200 per M.C.F.

Next 90,000 M.C.F. at 0.1900 per M.C.F.

Next 150,000 M.C.F. at 0.1800 per M.C.F.

Next 250,000 M.C.F. at 0.1750 per M.C.F.

All over 500,000 M.C.F. at 0.1725 per M.C.F.

This Schedule 3-B also had in it two clauses reading as follows :

"TAX ADJUSTMENT CLAUSE:
"The above rates will be increased by any new or additional taxes (as herein defined) which may be imposed on the company* after April 15, 1955. The term ‘taxes’ shall mean any tax (other than ad valorem, franchise, income or excess profit taxes), license, fee or charge levied or assessed by any governmental authority on the purchase, production, severance, gathering, transportation, handling, sale or delivery of gas sold under this rate schedule.
"COST OF PURCHASED GAS ADJUSTMENT CLAUSE:
"The rates shown above are based on the various costs of gas purchased for delivery to customers served from the company’s integrated transmission system as said costs will prevail by contractual agreements through December 31, 1955. Beginning with the bills rendered for the month of February, 1956, the above rates shall be increased or decreased each month by the increase or decrease in the weighted average unit cost of such gas purchased during the monthly period ending on the last day of the preceding billing month above or below the average weighted, cost of all such gas purchased during the year ended December 31, 1955. Any change in rates so determined will be computed to the nearest one-hundredth of a cent ($.0001).”

The foregoing “Tax Adjustment Clause” and “Cost of Purchased G-as Adjustment Clause” are together referred to hereinafter as the “escalator clauses”; since that is the recognized nomenclature in utility cases.

When the Gas Company filed its said application for rate increase, these three Industrial Consumers resisted the petition for a variety of reasons, among others being the matters hereinafter set forth. Over the strenuous objection of these Industrial Consumers, the Commission, by order of April 14, 1955, approved the Gas Company’s tendered bond of $1,250,000.00 and allowed the aforesaid copied “Monthly Consumption Rate” to become effective on April 15, 1955, under the provisions of § 73-217 Ark. Stats.; but in the said order the Commission recited that “. . . the tax and cost of gas escalator provisions in said schedule shall not be made effective until after further order of the Commission.” So, ever since April 15, 1955, the Gas Company has been collecting from these Industrial Consumers at the monthly consumption rate hereinbefore mentioned and thus put into effect under bond, as aforesaid; and these Industrial Consumers have at all times insisted that the monthly consumption rate so put into effect under bond is void because of the inclusion in the said Schedule 3-B of the two escalator clauses hereinbefore copied.

The Commission denied such insistence of these Industrial Consumers; the Circuit Court affirmed the Commission; and.the matter is here on appeal. In a printed-brief containing 61 pages of argument, and again in- oral argument before this Court, these Industrial Consumers-have strenuously urged: (a) that the inclusion of the escalator clauses rendered void the entire application for rate increase filed by the Gas Company on March 14, 1955; (b) that the Commission had no power to allow the monthly consumption rate in Schedule 3-B to go into effect because of the presence of the escalator clauses; and (c) that because the Gas Company in the Schedule 3-B asked more than it was entitled to, then the Gas Company lost the right to receive anything. And all such insistence is in the face of an admission by the Industrial Consumers that on final hearing on the rate increase, the Commission denied the Gas Company all prayed relief in regard to the two escalator clauses.

There is no necessity for us to discuss whether escalator clauses are good or bad, or to discuss whether these two escalator clauses come .within the intendment and fulfillment of § 73-219 Ark. Stats., which section seems to recognize some sort of escalator clause to be possible in some situations. The entire matter of escalator clauses was denied by tbe Commission; and anything we might say as to the validity or invalidity of escalator clauses would be obiter dicta. But, notwithstanding all the above, the appellant and the intervenors insist that the inclusion of the escalator clauses in the Gas Company’s petition for rate increase automatically prevented the Commission from allowing the monthly consumption rate to go into effect under bond; and this insistence is because— as the Industrial Consumers argue — the Commission could not “cull out” the good from the bad in allowing the rate to go into effect under bond.

We cannot believe — and we, therefore, refuse to hold —that the Public Service Commission was without power to eliminate the escalator clauses before approving the bond to allow the monthly consumption rate to go into effect in accordance with § 73-217 Ark. Stats. The law authorizing the Public Service Commission to act in such matters is found in § 73-201 et seq., Ark. Stats.; and the law gives the Commission many powers. Section 73-202 says the Commission is vested with the power “. . . to supervise and regulate every public utility . . . and to do all things, whether herein specifically designated, that may be necessary or expedient in the exercise of such power. . . .” Certainly if the Commission can “supervise and regulate” a public utility, it can strike the escalator clauses out of a proposed application before allowing the new rate to go into effect under bond. Again, § 73-204 says that “. . . all rates ... demanded ... by any public utility . . . shall be just and reasonable, and to the extent that the same may be unjust or unreasonable, are hereby prohibited and declared unlawful.” Certainly the Commission had the right to determine that the escalator clauses here involved were not “just and reasonable” so as to be put into effect under bond.

Again, under § 73-217, tbe utility could put into effect under bond an increased rate; but § 73-219 provides that a hearing must be held before any “. . . sliding scale or automatic adjustment of charges . . .” could be made effective. The Gas Company had a right, when it filed its Schedule 3-B, to ask that its monthly consumption rate go into effect under bond, and that, on final hearing, the escalator clauses be considered under § 73-219. The inclusion of these two requests in the one schedule was not fatal to the power of the Commission to approve the bond and allow the monthly consumption rates to go into effect. To hold otherwise would be to take our present system of liberal pleadings back to the days of the old common law pleadings: when, if the action were brought in trover and should have been in detinue, the result was fatal to the plaintiff’s case; or, if the action were brought in assumpsit and should have been brought in covenant or debt, then the plaintiff lost because he had brought the wrong kind of action. We abolished these old forms of action by our Civil Code of 1869; and the spirit of the Civil Code militates against the argument made by these Industrial Consumers. There is nothing fatal to a petition for a rate increase merely because the petition asks for more than is- to be allowed on preliminary hearing.

The appellant and intervenors cite us to two cases of the U. S. Supreme Court decided on February 27,1956, in which they claim the Court held that it is fatal to file a petition under one section of the law when it should have been filed under another section of the law. These two cases are: United Gas Pipe Line Co. v. Mobile Gas Service Corp., 350 U. S. 332 (Adv. op.), 100 L. Ed. (Advance Sheets) 291, 76 S. Ct. 373 (Adv. op.); and Federal Power Comm. v. Sierra Pacific Power Co., 350 U. S. 348 (Adv. op.), 100 L. Ed. (Advance Sheets) 300, 76 S. Ct. 368 (Adv. op.). But, as we read these two cases, they hold that a bilateral contract rate cannot be changed by a unilateral filing by the utility with the commission for a new rate. In the Mobile case, Mr. Justice Harlan summed up the holding of the Court in these words:

“For the reasons discussed below, we hold that tbe Natural Gas Act does not give natural gas companies the right to change their rate contracts by their own unilateral action. ’ ’

This quotation goes like a refrain through the entire opinion. And in the Sierra ease the same point is made. There is nothing in the record before us to even indicate that the Gas Company had made a preferred bilateral contract with any of these three Industrial Consumers so that a unilateral filing could not be made. As a matter of fact, such evidence of a preferred bilateral contract would be in the teeth of § 73-206 et seq., Ark. Stats. So we fail to see how the two cases from the United States Supreme Court have any bearing in the case at bar.

In the recent ease of Monsanto v. Robinson, 225 Ark. 1006, 290 S. W. 2d 6 (opinion of February 20, 1956), the appellant there made the same contentions as are here made by these Industrial Consumers; and in holding such contentions to be without merit, we said:

“The complaint concedes that the Commission did not allow the escalator clauses to be put into effect under bond; so the appellants have suffered no pecuniary injury from the provisions of which they complain. It is not denied that if the schedule of basic rates had been filed without the escalator clauses the Commission would have had the authority to put those rates in force under bond. It is not denied that if the appellants’ motion to dismiss had been granted by the Commission the gas company could have immediately refiled the same schedule of basic rates and put it into effect under bond. Thus the appellants’ only grievance lies in the fact that the escalator clauses are physically on file in the office of the Commission.”

The foregoing quotation disposes of the contentions of the three Industrial Consumers in the case at bar.

Affirmed.

       In the volume, “Conduct of the Utility Rate Case,” edited by Francis X. Welch, and published by Public Utilities Reports, Inc., in 1955, there is a discussion on pages 38 and 34 of escalator clauses in utility rates. The expression, “escalator clause” is not confined to utility cases. For use in other cases see Wasservogel v. Meyerowitz, 79 N. Y. S. 2d 256; Simpson Bros. v. Dist. of Columbia, 179 F. 2d 430; Pfotzer v. U. S., 176 F. 2d 675; Simpson Bros. v. Dist. of Columbia, 73 F. Supp. 858; Record & Tribune Co. v. Brandtjen & Kluge, Inc. (Iowa), 39 N. W. 2d 288; E. F. Pritchard Co. v. Heidelburg Brewing Co. (Ky.), 212 S. W. 2d 293; and Lincoln Rug Co. v. East Newark Realty Corp. (N. J.), 61 A. 2d 448.

       The three Industrial Consumers refer to the Schedule 3-B filed by the Gas Company with the Commission as “the proposed rate schedule” ; and here are the topic headings in the brief of the three Industrial Consumers in this Court:
      “I. The Arkansas Statutes Do Not Authorize the Filing of a Bate Schedule Containing Escalator Clauses Such As Those Appearing in the Purported Bate Schedule Tendered for Filing by_ the Company. Therefore the Commission Should Have Sustained Petitioner’s. Motion to Dismiss the Proceedings and Strike the Schedule from the Files.

      “A. The purported rate schedule tendered for filing by the Company did not comply with the requirements of § 73-217 and was therefore not acceptable for filing.
      “B. The purported rate schedule tendered by the Company did not comply with the requirements of § 73-219 and was therefore not acceptable for filing under that section.
      “C. The purported rate schedule did not comply with other provisions of the Arkansas Statutes.
      “D. Decision of other commissions support the analysis here presented of the unacceptability of the Company’s escalator schedule.
      “II. The Commission Was Without Jurisdiction to Take Any Action With Bespect to the Purported Bate Schedule and All Actions Taken by the Commission With Bespect Thereto Were Unlawful.

      “A. The Commission has no jurisdiction to act on a utility’s rates unless the conditions to attachment of such jurisdiction are met; none of which were complied with in this case.
      “B. The Commission unlawfully approved a bond filed by the Company to make effective its suspended rate schedule and unlawfully: upon approval of said bond prescribed a different .schedule for the interim period of investigation.”

       It must be remembered that § 73-217, Ark. Stats., was amended by Act 3l of 1955 so as (inter alia) “. . . to require a showing of immediate and impelling necessity before a rate increase is allowed a public utility under bond.” But the Act 31 of 1955 is not here involved, because this case on the bond matter was decided by the Commission before the effective date of Act 31 of 1955.


source: Caselaw Access Project

author: MiNor W. Mill wee, Associate Justice.

license: Public Domain

text:
    McCord v. Robinson.
    5-956
    289 S. W. 2d 893
    Opinion delivered May 7, 1956.

      French & Gamp, for appellant.

      Westbrooke & Westbrooke, for appellee.
   MiNor W. Mill wee, Associate Justice.

Appellee, Mildred Robinson, is the youngest child of A. A. and Ella Armstrong, who are now deceased. Appellants, who are the other children and heirs of said decedents, brought this suit to set aside a deed from the parents to appellee on the ground that it was never delivered. On a former appeal, we held the trial court erred in sustaining appel-lee’s motion to dismiss at the conclusion of appellants’ testimony and the cause was remanded for further proceedings and final determination of the question whether there had been a sufficient delivery of the deed to appel-lee. McCord v. Robinson, 225 Ark. 177, 280 S. W. 2d 222. On remand, the cause was submitted on the testimony adduced at the first hearing plus additional proof offered by the parties. The instant appeal is from a decree finding the proof insufficient to sustain appellants ’ allegation of nondelivery of the deed and dismissing the complaint for want of equity.

. . Appellee resided with her parents on the forty acres in controversy in 1934 when Mr. Armstrong became involved in a foreclosure proceeding against another tract he then owned. He became apprehensive that a possible deficiency judgment in that suit might eventually jeopardize his interests in the home place. After consulting-counsel, he and Mrs. Armstrong, on July 21, 1934, executed a general warranty deed of the' forty-acre homestead to appellee, reserving a life estate to the grantors. Appellee continued to reside with her parents, while three older daughters married and moved to homes of their own.

Appellee testified that on the date of the execution of the deed her father handed it to her and said, “Sis, this is for you and don’t record it until my death, but upon my death, you get the deed on record . . . Furthermore, you are going to have to take care of it.” Ap-pellee placed the deed in her mother’s trunk, where she and her parents kept other valuable papers. The deed remained in the trunk, which was accessible to appellee and her parents, until May 5, 1943, when appellee had it recorded because she was afraid it might be destroyed after a threat to that effect by a brother-in-law. Appel-lee’s mother acquiesced in the recording of the deed. While the deed was recorded without the prior consent of her father, the latter told appellee to “just let it be, just like it is,” after she explained why the deed was recorded, shortly after it was done. Appellee returned the deed to the trunk after it was recorded.

After A. A. Armstrong’s death, on July 8,1944, each of his other three daughters was given $500 from proceeds of the sale of another tract which he owned, but appellee was given none of said proceeds because she was getting the home place. Appellee continued to reside with and care for her mother until the latter’s death in April 1954. A small amount of personal property, left by Mrs. Armstrong, was divided equally between the two other sisters who survived their mother and appellee received none of it.

Several neighbors of the Armstrongs, who were not related and were apparently disinterested witnesses, testified to statements repeatedly made by A. A. and Ella Armstrong before and after the recording of the deed to the effect that they had deeded the forty acres to appel-lee and intended for her to have the place and that it was not for sale for that reason.

Opposed to the foregoing evidence was that of appellants and some close relatives to the effect that they had heard A. A. Armstrong on different occasions direct that the deed be procured from “his box” or “his drawer” and read to him; that he repeatedly stated the deed was to remain there and admonished appellee and others that it was not to be recorded; and that he became angry and threatened to have the deed ‘ ‘ taken off the record ’ ’ upon learning that it had been recorded. There was no proof of any effort to carry out such threat or to destroy the deed which remained in the trunk for nearly a year prior to his death and after he learned it had been recorded.

For reversal appellants argue there was no delivery of the deed which remained at all times in the possession and under the dominion of the grantors; and that the evidence adduced by appellants was sufficiently clear and decisive to rebut any presumption of delivery arising from the recording of the deed. We cannot agree with these contentions. On the former appeal, we cited numerous decisions which set forth the applicable rules for determining whether there has been a delivery of a deed. The rule is stated in Graham v. Suddeth, 97 Ark. 283, 133 S. W. 1033, as follows: “A deed is defined to be ‘a written instrument signed, sealed and delivered’; and it is essential to the validity of a deed that there should be a delivery of the instrument. But in order to constitute a sufficient delivery thereof it is not necessary that there should be an actual manual transfer thereof to the grantee or a formal acceptance thereof by him. The question of a delivery of a deed is largely one of intent; and if it clearly appears from the words or acts of the grantor that it was his intention to treat the instrument as his deed and to make a disposal thereof, indicating that it should he effective, then the delivery is sufficient. As is said in the case of Russell v. May, 77 Ark. 89: ‘Any disposal of a deed, accompanied by acts, words or circumstances which clearly indicate that the grantor intends that it shall take effect as a conveyance, is a sufficient delivery.’

“The registration of a deed raises a presumption of the delivery to and acceptance by the grantee thereof. It is evidence of a most cogent character tending to show delivery. It is a solemn proclamation to the world that there has been a transfer of the title to the property from the grantor to the grantee, of which our law makes everyone take notice. 1 Devlin on Deeds, § 392; 13 Cyc. 567; Hedge v. Drew, 12 Pick. 141; Robbins v. Rasooe, 120 N. C. 79; Snider v. Lackenour, 38 Am. Dec. 685.

“A deed signed, acknowledged and recorded, is complete and valid, although there is no evidence of a formal delivery thereof; and the presumption of delivery arising therefrom can only be overcome by clear and decisive proof that the grantor did not part and did not intend to part with the possession of the deed. The weight of authority is that a deed, thus executed and recorded, is valid and effective to pass title, although retained by the grantor in his possession. There mere fact of his retaining it in his possession is not sufficient to show that it was not intended to be absolute. Adams v. Adams, 88 U. S. 185.”

In Battle v. Anders, 100 Ark. 427, 140 S. W. 593, this court said: “The important question in determining whether there has been a delivery is the intent of the grantor that the instrument should pass out of his control and operate as a conveyance. The intent of the grantor is to be inferred from all the facts and circumstances adduced in the evidence. His acts and conduct are to be regarded in ascertaining his intent.” See also Faulkner v. Feasel, 113 Ark. 289, 168 S. W. 568.

We think a preponderance of the evidence supports the chancellor’s finding that appellants failed to meet the burden of showing nondelivery of the deed in question. In our opinion, a preponderance of the evidence clearly indicates that there was a manual transfer of the deed to appellee with the intention of the grantors that it pass out of their control and operate as a conveyance. Nor do we agree with the further contention that the instrument in question is merely an “insurance deed” which was prematurely recorded without the consent of the grantors. In Cavett v. Pettigrew, 182 Ark. 806, 32 S. W. 2d 808, cited in support of this contention, there was an effort to establish a lost deed which was never to be recorded at all and was only to become effective upon an eventuality which never happened.

In the recent case of Lindsey v. Christian, 222 Ark. 169, 257 S. W. 2d 935, we said: “We have held in a long line of cases, some of which are reviewed in Smith v. Smith, 218 Ark. 228, 235 S. W. 2d 886, that a deed like this one, if delivered, is a valid grant of a future interest, the quoted language merely reserving a life estate to the grantor. Here it is shown that the appellee agreed not to record the instrument until Lindsey’s death, but this fact does not distinguish the case from our earlier decisions. Since the remainder interest passed upon delivery of the deed it makes no difference, as between the parties to the conveyance, whether the deed was ever placed on record.” So here, the fact that possession of the land was reserved to the grantors for life does not defeat the passing of the title to appellee upon delivery of the deed which was shown by a preponderance of the evidence.

Affirmed.


author: (xeokge Rose Smith, J.

text:
    Carr v. Carr.
    5-946
    289 S. W. 2d 899
    Opinion delivered May 7, 1956.

      Mahony & Yocum and Stein & Stein, for appellant.

      Spencer i& Spencer, for appellee.
   (xeokge Rose Smith, J.

In the court below the appel-. lee was granted a divorce upon the ground of personal indignities. In her testimony she recounted several occasions on which her husband, the appellant, had cursed' and beaten her. It is now contended that this testimony was not corroborated, that the defenses of condonation and recrimination were established, and that the chancellor erred in his division of. the couple’s property.

When there is plainly no collusion in the case the corroborative proof need not be especially strong. Kirk v. Kirk, 218 Ark. 880, 239 S. W. 2d 6. A sister of the appellee stated that she had observed bruises assertediy resulting from the appellant’s mistreatment of his wife. Another sister, who had lived next door to these litigants, testified that she had heard the appellant cursing the appellee and had seen him strike her, kick her, etc. This proof amply meets the requirement that the testimony of a party be confirmed.

Neither condonation nor recrimination was established as a defense. The plaintiff testified that she was forced to leave her husband several times before their final separation and that she returned to him as a result of his promises to improve his behavior in the future— promises that were not kept. Upon these facts the con-donation was conditional and does not prevent the court from awarding the injured spouse a divorce. Franks v. Franks, 211 Ark. 919, 204 S. W. 2d 90. As to recrimination, the appellee was not blameless, but we do not think her actions serious enough to afford the appellant a ground for divorce. Hence the proof does not sustain the defense of recrimination. Davis, Mutual Misconduct in Arkansas Divorce, 3 Ark. L. Eev. 132, 137.

The chancellor took the view that the plaintiff was entitled to a half interest in all property standing in the defendant’s name. In all but one particular this conclusion is supported by the weight of the evidence. The couple’s home was owned as a tenancy by the entirety and was correctly ordered sold, the proceeds to be divided equally. Ark. Stats. 1947, § 34-1215. The appellee was employed during most of the marriage and contributed her earnings to the acquisition of furniture and other personal property. In these circumstances the chancellor was justified in holding that the appellee had an equal claim to the items so acquired. McIlroy v. McIlroy, 191 Ark. 45, 83 S. W. 2d 550.

The undisputed proof shows, however, that the appellant received $3,600 from his mother’s estate a few months before his wife left him for the last time. Although the appellant testified that most of this money had been dissipated before the suit was filed, the chancellor had good reason to disbelieve this testimony. The appellant stated, wholly without corroboration, that he put $1,000 in currency in a church collection plate and that two or three weeks later he lost $1,900 in a dice game. According to his own testimony he could not afford either outlay. The trial court was warranted in concluding that this money was being wrongfully concealed in an attempt to defraud the plaintiff of her marital interest in the fund. Nevertheless, since it is not suggested that the plaintiff contributed in any way to the acquisition of this money, her claim thereto does not extend beyond the one-third interest allowed by the statute. Ark. Stats., § 34-1214. The decree is too liberal in awarding her one-half of this $3,600.

The money judgment against the appellant must be reduced by $600, the difference between a third and a half of the money inherited by the appellant. As so modified the decree is affirmed, with an allowance of $150 to the appellee’s counsel for their services in this court.


author: Paul Ward, Associate Justice. Ed. F. McFaddin, Associate Justice,

text:
    Park Corporation of Arkansas v. Tri-County Drainage District.
    5-959
    290 S. W. 2d 18
    Opinion delivered May 7, 1956.

      Norton & Norton, for appellant.

      Henry S. Wilson and Nieves & Smith, for appellee.
   Paul Ward, Associate Justice.

Appellants, Park Corporation of Arkansas (a corporation), M. D. Parker, L. E. Burch, Jr., and Mrs. Lurlin F. Burch, are owners of real estate in St. Francis County. One appellee is the Tri-County Drainage District (hereafter referred to as Tri-County District) which was organized under the laws of this state about the year 1914 and embraces lands in Cross, Crittenden and St. Francis Counties, and another appellee is East St. Francis Drainage District No. 1 (hereafter referred to as District No. 1) which came into existence under the provisions of Act 371 of 1947 and embraces all the lands in St. Francis County which were originally in said Tri-County District.

, Appellants brought this suit in the Chancery Court of St. Francis County seeking to have removed, as clouds upon their titles, certain assessments made by appellees against their lands, and to enjoin other similar assessments. The trial court sustained a demurrer to appellants’ complaint, and this appeal follows.

The allegations in appellants’ complaint can be better understood in the light of an understanding of the statutory background of the two appellee drainage dis-triéts. Appellants do not question [except as hereafter noted] the legality of the formation of the Tri-County District. As stated above this district included lands in the three counties mentioned above, and it was empowered to make assessments and construct a drainage system for the benefit of the three counties. The Tri-County District continued intact until about the year 1948, during which time a drainage system was established and paid for by assessments against the lands in the three counties. During all this time assessments were made and the affairs, of the district were.administered by the Circuit Court of Crittenden County. • •. •

In 1947 tlie Legislature passed Act 371 [now appearing in Ark. Stats, as Sections 21-577 to 21-582, inclusive]. It was under the provisions of this Act that District No. 1 came into existence, and the Act gave District No. 1 “the power to preserve the portion of the drainage system located in such [St. Francis] county as provided in Section 4481 et seq. of Pope’s Digest. . . .” Said Section 4481 grants to the district the power ‘ ‘ of preserving the same, of keeping the ditches clear from obstructions and of extending, widening or deepening the ditches from time to time. . . .” In Section 5 of said Act 371 [Ark. Stats. § 21-581] there is, however, a provision that the Circuit Court of Crittenden County shall have authority “to cause to be levied and collected a tax on all the lands of the original district for the purpose of paying the expenses incident to the cleaning out (but not for the purpose of extending, widening or deepening) existing ditches so as to provide an adequate outlet for the entire drainage system of the original district.”

Appellants’ complaint. The complaint filed herein is somewhat lengthy and involved, but it contains, in substance, the following allegations: (a) The plaintiffs own lands in St. Francis County as stated above; (b) The appellee districts were organized as stated above, and the commissioners of said districts are made party defendants together with the county clerk and the collector of St. Francis County; (c) Tri-County District, under orders of the Crittenden County Circuit Court, and District No. 1, under orders of the County Court of St. Francis County, “both assert the right to make contracts for cleaning out and otherwise preserving” the identical ditches dug by Tri-County District, and have asserted the right “to levy and collect special maintenance taxes for such purposes”; (d) Tri-County District is now applying to the Crittenden County Circuit Court “for a levy of taxes annually upon its purported assessment to be expended for the cleaning out and maintenance of the same ditches in St. Francis County together with other of the original ditches in Cross and Crittenden Counties”; (e) One or the other of said assessments - (if not both)-is void and of no legal effect, bnt constitutes a cloud upon the title to appellants’ lands; (f) Tri-County District has no right to receive, handle or dispose of any taxes collected from lands in St. Francis County for the purposes mentioned; (g) The taxes collected by either of the drainage districts are expendable only for providing an adequate outlet for the drainage system as originally constructed, and the outlet for the entire system is in St. Francis County; (h) Tri-County District is about to enter into contracts for cleaning out and improving the outlet of the drainage system in St. Francis County; (i) The levies made by the Circuit Court of Crittenden County against the lands in St. Francis County are void because Crittenden County is in the Second Judicial Circuit of Arkansas and St. Francis County is in the First Judicial Circuit, and; (j) Appellants are entitled to an adjudication under the Declaratory Judgments Act. The prayer was: (a) That the clouds cast upon the titles to appellants’ lands by said assessments, liens and levies be removed, and; (b) That the clerk and collector of St. Francis County be restrained from placing upon the tax books, or endeavoring to collect any tax or assessment upon their lands.

To the above complaint Tri-County District and its commissioners entered a demurrer on two grounds: (a) That there is another action now pending between the same parties in the Circuit Court of Crittenden County involving the same issues as raised by appellants, and; (b) That the complaint fails to state facts sufficient to constitute a cause of action. In sustaining appellees’ demurrer the trial court did not specify upon which ground it based its decision. We have concluded, however, that the court’s action was justified on the second ground mentioned above, and we will therefore not discuss the merits of the first ground.

As we interpret appellants’ complaint, their main concern is that both districts are collecting [or attempting to collect] taxes on their lands in St. Francis County to clean out that portion of the drainage ditch in St. Francis County, and that Tri-Connty District is collecting [or attempting to collect] taxes on their lands in St. Francis County to clean out portions of the original ditch which lies in Cross or Crittenden County. We have-concluded that all of the above mentioned activities are permissible under the law.

.Ref erring to the statutes mentioned above in their entirety, and in particular to those portions above set forth, we find that the County Court of St. Francis County had the power to make assessments against appellants ’ lands [in St. Francis County] to preserve that portion of the drainage system located in St. Francis County, to preserve the same, to keep the ditches clear from obstructions and to extend, widen and deepen the ditches. The substance of appellants ’ complaint is, in this connection, that District No. 1 was preparing to make contracts and use the tax money to clean out that portion of the ditch or canal which ran through St. Francis County. It is clear to us therefore that appellants have not, thus far, alleged any grievance from which they are entitled to equitable relief. Likewise it appears from Section 5 of said Act 371 [Ark. Stats. § 21-581] that the Circuit Court of Crittenden County is empowered to levy and collect taxes on appellants’ lands in St. Francis County “to clean out existing ditches so as to provide an adequate outlet for the entire drainage system of the original district. ” As we view appellants ’ complaint, this is exactly what they have alleged Tri-County District has done or is doing, because, in the absence of allegation to the contrary, we must assume that the words ‘ ‘ existing ditches ’ ’ embraces that portion of the main canal or ditch which runs through St. Francis County — in fact the complaint alleges this to he true. From the above we conclude therefore that both districts have a right to make assessments to clean out the main ditch or outlet in St. Francis County.

Not only do the two districts have the powers mentioned above but we conclude that the spirit if not the exact letter of the statute gives Tri-County District the power to levy assessments against appellants’ lands in St. Francis County [along with all of the other lands in the other two counties which are embraced in the district] to pay the expenses of “cleaning out” an obstruction or obstructions in the main ditch or canal even though said obstructions are in Cross or Crittenden County. Obviously Act 371 of 1947 grants the original district the power to keep the main ditch or canal in all three counties cleaned and opened so that the system will be serviceable for all three counties, while at the same time the Act [by reference to Section 4481 of Pope’s Digest] gives District No. 1 the power [or option] to preserve and clean out that portion of the ditch in St. Francis County.

As we have heretofore noted, the two districts had the authority to make the levies complained of. Appellants’ complaint makes mention of these levies by the Circuit Court of Crittenden County and the County Court of St. Francis County but does not state in what particular said levies are unlawful. In the absence of such allegations we must presume that the levies were made according to law. If, however, appellants had made allegations [which they have not clearly done] that the tax money [though lawfully assessed] was being used for an unlawful purpose, it would not follow that such assessments, lawfully made, are a cloud upon the titles to their lands. If either district makes an attempt to use the tax money for an unlawful purpose, appellants will then have an adequate remedy to prevent such attempted action. In this connection we point out that Tri-County District’s power is limited, and that it has no right under the statutes to levy a tax on appellants’ lands in St. Francis County for the purpose of digging additional ditches or for the purpose of preserving and cleaning out any existing ditches except the main ditch or canal which provides drainage for the entire district.

Appellants contend that assessments made by the Circuit Court of Crittenden County against their lands in St. Francis County are null and void, notwithstanding the provisions in Section 5 of said' Act '371, because the Circuit Court of Crittenden County could have no jurisdiction [to make assessments] outside its own judicial district.. This contention on the part of appellants 'cannot be sustained. This court has heretofore recognized that where several counties are included in an improvement district it is necessary for the Circuit Court of one county only to have jurisdiction for the purpose of administering the affairs of the entire district. There is no direct constitutional prohibition against such jurisdiction and justification lies in the fact that Circuit Courts are the repository of all unassigned jurisdiction. In the case of Grassy Slough Drainage District No. 1 v. National Box Co., 111 Ark. 144, 163 S. W. 512, Chief Justice McCulloch, among other things, said: “The Circuit Courts of the state being the repository of all unassigned jurisdiction, it is within the power of the legislature to confer on them jurisdiction to determine questions relating to the organization of districts not local to a county.” Later, in the case of Russell, et al. v. Cockrill, Judge, 211 Ark. 123, 199 S. W. 2d 584, the court quoted with approval: “ ‘The Constitution prescribes, limits, and defines, with more or less accuracy, the jurisdiction to be exercised by all of the courts except the Circuit Courts, and instead of attempting to define their jurisdiction (other than appellate) leaves to them the great residuum of civil and criminal jurisdiction not distributed exclusively to other courts.’ ” The case of Lesser-Goldman Cotton Co., et al. v. Cache River Drainage District, et al., 174 Ark. 160, 294 S. W. 711, involved a drainage district composed of portions of Craighead, Jackson and Lawrence Counties [the former county being in one judicial circuit and the latter two in another]. The drainage district was organized under an act of the legislature by an order of the Circuit Court of Craighead County. In that case litigation came to this court over an attempt to extend the district to Poinsett County and this court said: ‘ ‘ The land of the district being in more than one county, the proceedings must necessarily be before the circuit court, as the statute provides, which procedure was followed in this case.” Appellee, Tri-County District, was also the appellee in the case of Dickerson v. Tri-County Drainage District, et al., 138 Ark. 471, 212 S. W. 334, and the court, among other things, there said: “The statute now under consideration confers jurisdiction on the circuit court where the lands are situated in several counties, and we have upheld the statute in that respect.” [Citing Grassy Slough District, supra]. A careful reading of the Dickerson case, supra, shows that it was necessary for the court, in reaching the conclusion it did, to pass upon the power of the Circuit Court of Crittenden County to organize the district embracing lands in two separate judicial circuits, and its authority to make assessments in all of the counties.

In appellants’ complaint, but not in their prayer, they seek an adjudication under the Declaratory Judgments Act. By this, apparently, appellants’ objective was to have the court declare which assessment lien, if valid, was prior to the other, but this question has heretofore been considered by this court. See Board of Commissioners of McKinney Bayou Drainage District v. Board of Directors of Garland Levee District, 181 Ark. 898, 28 S. W. 2d 721; Howe v. Long Prairie Levee District, 187 Ark. 725, 62 S. W. 2d 10; Sanders v. Mhoon, 214 Ark. 589, 217 S. W. 2d 349; and Street Improvement District No. 419 v. Pinkert, 221 Ark. 265, 253 S. W. 2d 780.

It follows, in view of what we have heretofore said, that the judgment of the trial court must be, and it is hereby, affirmed.

Affirmed.

Chief Justice Seamster and Justice McFaddin dissent.

Ed. F. McFaddin, Associate Justice,

dissenting. The appellants filed this suit and the appellees demurred; the trial court sustained the demurrer and dismissed the suit when the appellants elected to stand on the complaint: so the case comes to us on the issue of the sufficiency of the complaint to state a cause of action.

1 am of the opinion that, when we give the allegations in the complaint the broad and liberal interpretation to which they are entitled, there was enough.alleged in the complaint to state a cause of action and that the demurrer should have been over-ruled. That we do give the allegations in the complaint a broad and liberal interpretation when testing their sufficiency against a demurrer, is well recognized. In Rice v. King, 214 Ark. 813, 218 S. W. 2d 91, Mr. Justice Frank G-. Smith stated the rule:

“The sufficiency of this pleading is being tested on demurrer and it was said in the case of Sharp v. Drainage Dist. No. 7, 164 Ark. 306, 261 S. W. 923, that under our code every reasonable intendment and presumption is to be indulged in favor of the pleading and a complaint will not be set aside upon demurrer unless it be so fatally defective that taking all the facts admitted the court can say that they furnish no cause of action whatever. ’ ’

This suit presents important questions in the field of improvement district law, and is the first time that Act 371 of 1947 has been before this Court. That Act was an effort to localize to the County level the upkeep of access ditches in multi-county districts; but the Act recognized the necessity of the continuation of the original multi-county district for the upkeep of the main ditches or outlet of the district. To clarify as to terminology: the small ditches leading into the main ditch can be referred to as' access ditches, and the main ditch leading to the outlet of the district is called either the main ditch or the outlet ditch. In the case at bar, the question, whether the ditches involved were outlet ditches or access ditches, seems to me to have been a matter that should have been developed by the evidence.

The Tri-County District was organized by the Circuit Court of Crittenden County in or about 1915 and is composed of territory in Cross, Crittenden and St. Francis Counties. In 1948 the East St. Francis Drainage District No. 1 was created (and will be referred to herein as the “St. Francis District”). This St. Francis District was created pursuant to Act 371 of 1947. The complaint in this case alleges that the Tri-County District is proceeding to collect benefits on the lands in St. Francis County bas'ed on the old 1915 assessment of benefits; and that the St. Francis District is attempting to collect benefits on the same lands in St. Francis County based on the 1948 assessment of benefits.

As I understand the law, the St. Francis District can collect assessment of benefits for the purpose of keeping up the access ditches in St. Francis County, and the Tri-County District can collect benefits on the lands in St. Francis County only for the purpose of keeping up the main ditches or outlet ditches of the Tri-County District. In other words, the benefits collected on the St. Francis County lands under the 1915 assessment cannot be used — since 1948 — for the purpose of cleaning out or keeping up any of the access ditches in Cross County or Crittenden County.

With the above understanding, I come to the allegations in the complaint; and I think these allegations were broad enough to allege that the Tri-County District was seeking to collect benefits from the lands in St. Francis County on the 1915 assessment for the use of cleaning out the keeping up the access ditches in Cross County and Crittenden County. Here are the allegations in the complaint:

“13. Plaintiffs allege that the Defendant Bast St. Francis Drainage District No. One is now collecting taxes each year upon its purported Assessment as aboye described, and the Defendant, Tri-County Drainage District, is now applying to the Crittenden County Circuit Court for a levy of taxes annually upon its purported Assessment to be expended for the cleaning out and maintenance of the same ditches in St. Francis County together with other of the original ditches in Cross and Crittenden Counties ...
“14. (f) That any such taxes collected or to be collected by the Defendant Districts, or either of them, are expendable only for the improvement and maintenance of the drainage ditches in St. Francis County, and may not be lawfully diverted to the improvement or maintenance of the ditches of Tri-County Drainage District in Crittenden County or Cross County; and
“(g) That under Act 371 of 1947, being Sections 21-577 to 21-582 inclusive ASA 1947, taxes collected upon levies made or to be made in the name of Tri-County Drainage District are expendable only for providing an adequate outlet for the drainage system originally constructed by the said Tri-County Drainage District, and the outlet for the entire said drainage system has always been and is now in St. Francis County and in the .area now constituting the separate District of East St. Francis Drainage District No. One; ...”

As I read the majority opinion, it holds that the foregoing allegations do not state that the moneys collected on the lands in St. Francis County were to be used in cleaning out the access ditches in Cross County and Crittenden County. So we all seem to agree that the Tri-County District cannot collect benefits on the lands in St. Francis County for use in cleaning out or maintaining the access ditches in Cross County or Crittenden County.

The question is whether the allegations in the complaint stated a cause of action. I think they did when given a-broad and liberal interpretation; and, therefore, I dissent from the affirmance. This is an important case and the facts should have been developed once and for all to prevent a multiplicity of litigation.

       thoroughly agree with the majority that the other point of the demurrer — pendency of another action — is without merit. In the case of Kastor v. Elliott, 77 Ark. 148, 91 S. W. 8, we held that it is only when the complaint shows on its face the fact of another pending action, that the matter may be raised by demurrer. The complaint in this case does not show such fact on its face and, if the appellees wanted to make a defense that there was another pending case, they would have had to introduce proof and that would have precluded the demurrer.

       For other cases to the same effect see Story v. Cheatham, 217 Ark. 193, 229 S. W. 2d 121; Ferrell v. Elkins, 159 Ark. 31, 251 S. W. 380; Cox v. Smith, 93 Ark. 371, 125 S. W. 437; and Cazort v. Dunbar, 91 Ark. 400, 121 S. W. 270.


author: Sam RobiNsoN, Associate Justice.

text:
    White, Baker and White v. State.
    4833
    289 S. W. 2d 900
    Opinion delivered May 7, 1956.

      R. W. Raster and C. Van Hayes, for appellant.
    ■ Tom Gentry, Attorney General, and Thorp Thomas, Assistant Attorney General, for appellee.
   Sam RobiNsoN, Associate Justice.

Appellants were convicted on a charge of robbery. On appeal, they say, first, that the evidence is not sufficient to sustain the charge. From the evidence, the jury could have concluded: The three appellants, along with one John Zina-mon, got together in Little Rock and agreed to go out west of Little Rock for the purpose of intercepting and robbing the driver of a Goff Wholesale Grocery Company truck. The appellant, Joe Baker, furnished the automobile used to go to the scene of the crime. The appellant, Winston White, furnished the pistol and blackjack to be used in the robbery. The robbers failed to locate the Goff truck and decided to rob Mr. E. M. Brown, who operates a small store and filling station in Saline County. The conspirators discussed in detail the method of perpetrating the crime, and it was decided that they would pretend to purchase some gasoline, and, while Mr. Brown was servicing the car, Zinamon would knock him in the head with the pistol or blackjack. In a discussion as to how hard Mr. Brown was to be struck, some were in favor of killing him, but others favored hitting him only hard enough to cause unconsciousness; those who preferred unconsciousness over killing prevailed. They executed the plan, as agreed, but although Zinamon struck Mr. Brown with his pistol twice with such force as to require ten or eleven stitches to close the wounds, Brown was not rendered unconscious; he was able to run through his store to the apartment at the rear, where he obtained a .22 rifle, and after returning to the front of the store, he shot at the robbers some fifteen times. Biit his wounds were bleeding profusely, the blood running down into his eyes, and he was, therefore, unable to take aim, hence none of the shots were effective. While. Zina-mon was beating Mr., Brown, as planned, Winston White ran into the store to get the money from the cash drawer; but when Brown, not being completely disabled, ran into the store, th§ robber who had entered the store became frightened and ran,out without having gained entrance to the cash drawer. Therefore, the only thing obtained, in the robbery was the gasoline worth $2.80. Such facts are sufficient to sustain the charge. “Bobbery is the felonious and violent taking of any goods, money or other valuable thing from the person of another by force or intimidation; the manner of the force or the mode of intimidation is not material, further than it may show the intent of the offender.” Ark. Stats., § 41-3601.

Appellants further contend that a pistol introduced in evidence by the State was not identified as the one used in the robbery. The pistol was found near the place where two of the defendants said it was thrown out of the car, which was at a point between the scene of the robbery and the place where two of the defendants were arrested while standing near the car used in the robbery. The pistol was sufficiently identified by circumstantial evidence.

Appellants ’ confessions were introduced in evidence and, on appeal, they say the State did not prove the confessions to be voluntary. The question of whether the confessions were voluntary was gone into at the trial, and evidence that they were voluntary is overwhelming.

It is true that two of the defendants claim they were mistreated by the State Police at the time of the arrest. Their testimony in that respect is denied by the officers, and by Mr. Brown, who was present. The defendants showed no signs of mistreatment, and, furthermore, they were in jail in charge of the officers of Saline County at the time the confessions were made to the officers and prosecuting attorney. Appellants do not claim to have been mistreated by any one after being placed in jail. In addition to the testimony of the officers, circumstances do not indicate any kind of mistreatment.

The judgment is affirmed.


author: Lee Seamster, Chief Justice.

text:
    Haynes v. Riales.
    5-955
    290 S. W. 2d 7
    Opinion delivered May 14, 1956

      Kenneth G. Goffelt, for appellant.

      Louis Tarlowski and Catlett & Henderson, for ap-pellee.
   Lee Seamster, Chief Justice.

Appellant, Roy M. Haynes, brought suit in the Pulaski Chancery Court, First Division, to enjoin the appellee, Roy L. Riales, from receiving money as an auditor for the Arkansas Burial Association Board. The complaint reads as follows :

‘ ‘ The plaintiff, for his cause of action herein against the defendants, and each of them states:
“He is a resident citizen of Polk County, Arkansas, and is a member of the Arkansas House of Representatives from said county. He brings this suit as a taxpayer of the state, for himself as a taxpayer and for the taxpayers of Arkansas.
“The defendant Riales is a member of the Arkansas State Senate, representing the Sixth Arkansas Senatorial District, and has been such since January, 1955, having been elected and qualified to serve for a period of four years ending January, 1959.
“The Arkansas Legislature of 1953 enacted Act 91, which is known as the Arkansas Burial Association Act, and such Act is now, and has been since its passage and approval, in full force and effect. Said Act created what is known as the Burial Association Board, conferring upon said board certain powers, directives and authority, and provided how said board should be selected. The defendants, Nelson, Lattimer, Holmes, Shinn, Mays, Howard and McNabb are now, and have been since the passage of said act, the duly appointed, qualified and acting members of said Burial Association Board. The defendant Simms is the Executive Secretary of said Board.
“Plaintiff alleges, that the said Burial Association Board as provided for nnder the terms of said act, is a State Agency; that said board is an administrative State Board, whose duties are to carry out the terms of said act as enacted by the State Legislature; that the funds created by, and expenditure of such funds as authorized under the terms of said act, are public funds, and subject to control by the State Legislature; that the positions of employment, including the board members, created under the terms of the Act, are civil positions of employment of, and by the state, and constitute civil offices of the state.
“Defendant, Riales, has continuously since being sworn in as State Senator, as herein alleged, been employed as field Auditor by the defendant members of said Burial Association Board, and is being paid for his services as such by them, and by the herein named defendant Executive Secretary of said board. The salary and expenses being paid defendant Riales by defendant board members and Executive Secretary, as alleged, amount to approximately $8,000 annually. Defendant Riales is receiving said moneys as said auditor while at the same time receiving his salary from the State of Arkansas as State Senator from the Sixth District. Plaintiff alleges, that unless restrained, the defendant Riales, will continue to receive said moneys from said board as one of its field auditors while serving as State Senator at the same time, and for such practice to continue, will cause this plaintiff and the other taxpayers of the state to suffer irreparable damages.
“Plaintiff alleges, that for the defendant Riales to receive said moneys from the defendant, Burial Association Board members and said Executive Secretary, and for them to pay out to him said moneys, as herein alleged, is in strict violation of Sec. 10, Art. 5 of the Constitution of the State of Arkansas which provides, ‘no senator or representative shall, during the term for which he shall have been elected, be appointed or elected to any civil office under this state.’
“Plaintiff alleges, that the moneys already paid out by the said defendant board members and Executive Secretary, to defendant Eiales, should be recovered for the taxpayers, and that judgment should be had against the defendants, for the taxpayers of the State for said moneys already paid out to defendant Eiales since he has been State Senator, as alleged; that the defendants should give an accounting to this court as to the exact amount of moneys paid to and received by Eiales, as alleged, since he has been serving as State Senator.”

Appellees demurred on grounds (1) that the Court had no jurisdiction of the subject of the action; (2) that the appellant did not have legal capacity to sue; and (3) that the complaint did not state a cause of action. The trial court sustained the demurrers and dismissed the complaint. This appeal follows.

The sole question presented here is whether the ap-pellee, Eoy L. Eiales, has been appointed to any civil office under this State. The demurrer admitted that he was elected, and is now serving as a State Senator from the Sixth Arkansas Senatorial District; that he was when elected, and is now serving in the capacity of an auditor for the Arkansas Burial Association Board.

The Arkansas Burial Association Board was created by Act 91 of the General Assembly of 1953. By reference to this act, Section Four authorizes said Board to employ and fix the duties and salaries of an executive secretary, two auditors, and such other clerical assistance as may be necessary to carry out the provisions of the Act.

The question presented is whether the position of auditor for Arkansas Burial Association Board is a civil office or a mere employment. In the case of Rhoden v. Johnston, 121 Ark. 317, 181 S. W. 128, the court discussed at length the necessary provisions of the law to create a civil office. The court in the above case cited with approval the following cases and the definition there given of a public office.

“An apt definition is given by the Supreme Court of the United States in the case of United States v. Hartwell, 6 Wall. 385, as follows: ‘An office is a public station or employment, conferred by the appointment of government, and embraces the ideas of tenure, duration, emolument, and duties.’ ”
‘ ‘ The same court, in Hall v. Wisconsin, 103 U. S. 5 said: ‘Where an office is created, the law usually fixes the compensation, prescribes its duties, and requires that the appointee shall give a bond with sureties for the faithful performance of the service required. ’
“The Supreme Court of Mississippi, in Shelby v. Alcorn, 36 Miss. 273, gave a definition which has met our approval, as follows: ‘And we apprehend that it may be stated as universally true, that where an employment or duty is a continuing one, which is defined by rules prescribed by law and not by contract, such a charge or. employment is an office, and the person who performs it is an officer.’
“In United States v. Maurice, 2 Brock. 96, Chief Justice Marshall said: ‘Although an office is “an employment,” it does not follow that every employment is an office. A man may certainly be employed under a contract, express or implied, to do an act, or perform a service, without becoming an officer.’ ”

In the recent case of Bean v. Humphrey, State Auditor, 223 Ark. 118, 264 S. W. 2d 607, this court said:

“In distinguishing between an officer a'nd an employee, and pointing out the elements or criteria necessary to each, the text writer in 42 Am. Jur., page 888, (in Sections 10 to 12 inclusive), says: ‘A public officer is one whose functions and duties concern the public, and who exercises some portion of the sovereign power of the state. In this and in other respects he is to be distinguished from a private officer. The latter holds his position not by election or official appointment, but by contract, and his duties are performed at the instance and for the benefit of the individual or corporation employing him . . .
“ ‘ Generally speaking, the nature of the relation of a public officer to the public is inconsistent with either a property or a contract right. One contracting with the government is in no just and proper sense an officer of the government.
“ ‘There are points of difference between a public office and a public contract. As observed above, a public office embraces the idea of tenure, duration, and continuity. The duties connected therewith are continuing and permanent. A public contract, on the other hand, is limited in its duration and specific in its objects. Its terms define and limit the rights and obligations of the parties, and neither may depart therefrom without the consent of the other. Unlike a public office, a public contract does not involve a delegation of a function of sovereignty. The fact that the duties of a particular position or governmental function do not depend on.contract is itself one of the criteria of a public office.
“ ‘Public office, as hereinbefore defined and characterized, is in a sense an employment, and is very often referred to as such. But there is a distinction between a public • office and a public employment which is not always clearly marked by judicial expression and is frequently shadowy and difficult to trace. The distinction, however, is one which in many instances becomes important and which the courts are called upon to observe. Although every public office may be an employment, every public employment is not an office, and the word “employee” as used in statutes has in many cases been construed as not including officers.
“ ‘When a question arises whether a particular position in the public service is an office or an employment merely, recourse must be had to the distinguishing criteria or elements of public office . . . Briefly stated, a position is a public office when it is created by law, with duties cast on the incumbent which involve some portion of the sovereign power and in the performance of which the public is concerned, and which also are continuing.in their nature and not occasional or intermittent; while a public employment, on the other hand, is a position in the public service which lacks sufficient of the foregoing elements or characteristics to make it an office.’ ”

Act 91 of 1953 does not set out the following: the term or tenure of the auditors; the length of time the auditors are to serve in their respective positions; the emoluments and duties of the position. The Burial Association Board is merely authorized to employ and fix the duties and salaries of the auditors — this to be done by contract or agreement and may be discontinued at the pleasure of the board.

This act does not make the position of auditor a civil office, but rather an employment subject to the authority of the Burial Association Board. The act further provides, “the operation of the Burial Association Board and the carrying out of the functions set out in this Act shall be at no expense to the State of Arkansas.”

Finding no error, the decree sustaining the demurrer is affirmed.


author: J. SeaborN Holt, Associate Justice.

text:
    Early v. State.
    4841
    290 S. W. 2d 13
    Opinion delivered May 14, 1956.

      Eugene C of felt, for appellant.

      Tom Gentry, Attorney General, Paul C. Rawlings, Assistant Attorney General, for appellee.
   J. SeaborN Holt, Associate Justice.

Appellant, under the provisions of § 41-1928 Ark. Stats. Í947, was charged by information (November 10, 1954) with the crime of removing mortgaged property from the State of Arkansas with the felonious intent to cheat and defraud the mortgage holder in the collection of the secured debt. A jury trial resulted in a verdict of guilty, and the minimum punishment fixed at a term of six months in the Arkansas Penitentiary. From the judgment is this appeal.

First, appellant contends that the evidence was not sufficient to support the verdict and judgment. We do not agree. The testimony shows that on June 8, 1954, appellant executed a note for $4,250 to the Bank of Ben-tonville, secured by a chattel mortgage covering some 19 head of registered short horn cattle and other personal property. After this mortgage became due (July 1954) appellant sought permission from the bank (mortgagee) to remove the cattle to Miami, Oklahoma, but his request was denied over appellant’s threat that if the bank refused his request he would do all in his power to defeat collection of the debt by inducing friends not to attend foreclosure sale. In September 1954 appellant, without the consent or knowledge of the bank, removed 9 head of the mortgaged cattle to Oklahoma. Foreclosure sale was held November 5, 1954, at which all of the cattle were to be sold, however, the 9 head in Oklahoma were not returned from Oklahoma until November 24, 1954' and they were sold at a second sale on December 10, 1954. The proceeds from the sales left a deficiency judgment of more than $2,000.

In addition to the above evidence, the President of the Bank testified that when he learned that the cattle had been taken to Oklahoma he called appellant, who admitted he had removed them to Oklahoma, bnt he did not heed the bank’s request that the cattle be returned to Arkansas immediately. “Q. Were these cattle represented to you as being registered animals? A. Yes, sir. Q. I will ask you to tell the jury whether or not the registration certificate or papers indicating that they were purebred and registered, were furnished by the defendant?- A. No, sir.” It further appears that appellant was arrested on the above charge in Oklahoma and had to be extradited for trial in Arkansas. We think the above testimony is substantial and, therefore, sufficient to support the jury finding that appellant removed the property to Oklahoma with the intent to defeat the bank in the collection of its debt. The jury was the sole judge of the credibility of the witnesses and the weight to be given their testimony. See Herron v. State, 202 Ark. 927, 154 S. W. 2d 351. The verdict must stand when supported by substantial evidence. The rule is well established also that in passing on the legal sufficiency of testimony to support the jury’s verdict, we must give to the evidence its highest probative value in support of the verdict. Also we must consider the evidence in the light most favorable to the State. See Bird v. State, 175 Ark. 1169, 299 S. W. 40; Storms v. State, 179 Ark. 1158, 16 S. W. 2d 468; Moore v. State, 167 Ark. 164, 267 S. W. 769.

Appellant next argues that the court erred in permitting the State’s counsel to cross-examine him as to any “hot checks” written by appellant and further as fo his conviction on a “bootlegging” charge. These contentions are without merit. .When Early took the witness stand, he placed himself in the same position as any other witness and it was proper to question him as to any “hot cheeks” that he may have issued, or as to any “bootlegging” charges, as affecting his credibility as a witness. In Willis v. State, 220 Ark. 965, 251 S. W. 2d 816, we said: “It was competent for the State to cross-examine the accused concerning prior unlawful or immoral conduct, regardless of time, for the purpose of testing their credibility . . . [Also citing Whittaker v. State, 171 Ark. 762, 286 S. W. 937, and Hollingsworth v. State, 53 Ark. 387, 14 S. W. 41.] ” It appears that appellant did not ask the court for an instruction limiting the testimony as to the hot checks for impeachment purposes only. His complaint now comes too late. In Roy v. State, 102 Ark. 588, 145 S. W. 190, this court said: “It is also insisted that, as the proof of the contradictory statements was only for the purpose of impeaching the witness, it was error for the court to admit the testimony without cautioning the jury to consider it for no other purpose. It is true that when such testimony as that which was introduced is competent for one purpose, it is the duty of the court, when requested, to explain to the jury the purpose for which it is admitted and to admonish the jury not to consider it for any other purpose. The party objecting cannot, however, complain or object unless he has requested the court to give such admonition. Where the testimony is competent for one purpose, if the other party conceives that it is likely to be considered by the jury for another purpose, and thus become prejudicial to his rights, it is his duty to call the matter to the attention of the court and ask an instruction limiting its consideration . . .” As to questions on the “bootleg” charge, the record reflects that these questions went to the credibility of the witness and appellant’s testimony relating to the charge was not objected to.

Appellant’s contention that he was prejudiced by the admission in evidence of the extradition proceedings, we find to be untenable, for the reason that this evidence was admissible as bearing upon appellant’s good faith and intention in the whole transaction.

We find no error in the court’s refusal to give certain instructions requested by appellant, since these instructions, we find, were in effect fully and fairly covered by other instructions given. The court was not required to repeat or multiply instructions. After a review of all the instructions we hold that they clearly presented the law applicable to the facts in the case and that no prejudice to appellant’s rights appears.

Finally, appellant says that the court placed a heavier burden on him than the law requires, and in this connection says: “The burden was on the State to prove that the property was removed from the State of Arkansas with the fraudulent intent to defraud the Bank of Bentonville beyond a reasonable doubt and the court should have instructed the jury on this point, in no uncertain terms.” We think this contention untenable for the reason that the court in its instructions property placed the burden of proving appellant’s guilt, beyond a reasonable doubt, on the State. In Instruction No. 2 we find this language: “You are told that the burden of proof is upon the State of Arkansas to show this defendant to be guilty beyond a reasonable doubt,” and Instruction No. 7 provides: “You are instructed that the allegation in the Information with the term fraudulent intent is a fact to be established by the State of Arkansas beyond a reasonable doubt the same as any other material allegation in the Information. Such intent, that is, fraudulent intent, however, need not be proved by direct testimony but may be established by circumstantial evidence as in the case of any other disputed fact,” and Instruction No. 13 provides: “In summary, it is substantially as I told you. You will determine whether or not the taking of the mortgaged property from beyond the bounds of the county and State of Arkansas with the fraudulent intent or whether it was with good intent, considering all the evidence in the case.” See Hampton v. State, 67 Ark. 266, 54 S. W. 746.

Finding no error, the judgment is affirmed.

Justice BobiNSON dissents.


author: Ed. F. McFaddiN, Associate Justice.

text:
    Chavis v. Golden, Judge.
    5-910
    290 S. W. 2d 637
    Opinion delivered May 14, 1956.
    [Rehearing denied June 18, 1956.]

      A. D. Chavis, for petitioner.

      Max M. Smith, for respondent.
   Ed. F. McFaddiN, Associate Justice.

This is an original proceeding for a writ of mandamus, brought by Mr. and Mrs. A. D. Chavis (hereinafter called “petitioners”) against the Honorable John M. Golden, Circuit Judge of the 10th Judicial District of which Cleveland County is a part.

The petitioners allege that since July 15, 1955 they have had pending in the Cleveland Circuit Court tbeir motion to vacate a summary judgment .rendered against them, and that the Cleveland Circuit Court refuses to rule on said motion. The prayer is for a writ of mandamus to compel the Circuit Court to rule, one way or another, on the said motion. Honorable John M. Golden, Judge as aforesaid (hereinafter called “respondent”), replies, inter alia, (I) that a valid judgment was rendered against petitioners in the Cleveland Circuit Court on September 27, 1954, and they failed to perfect their appeal to the Supreme Court; and (2) that on July 11, 1955 he denied the motion to vacate the said judgment and that petitioners then sought to present the same motion by some form of amendment, which he refuses to permit.

The record reflects that in 1953 J. D. Mitchell filed a replevin action against Sterling Watts in the Justice of the Peace Court of Van McKinney, Justice of the Peace in and for Bison Township, Cleveland County, Arkansas. The action was to repossess a 1949 model Ford truck from the defendant, Sterling Watts. Judgment was rendered in the Justice of the Peace Court in favor of the plaintiff, Mitchell; defendant, Watts, made a supersedeas bond, as provided for by § 26-1302 Ark. Stats.; and the bond was approved by the Justice of the Peace. The original bond has been brought before us by our order of subpoena duces tecum, and bears the undenied signatures of the petitioners as sureties.

The case of Mitchell v. Watts was appealed to the Cleveland Circuit Court, wherein some questions were raised about the original replevin bond filed by Mitchell and the original cross bond or retaining bond filed by Watts; but the’ record does not disclose that anyone;— prior to judgment in the. Circuit Court — questioned the validity or sufficiency of the supersedeas bond signed by these petitioners as sureties for Watts. It is because these petitioners were sureties on this supersedeas bond that judgment was rendered against them in the Circuit Court. At all events, Watts, the client of A. D. Chavis, retained possession of the truck after the judgment of the Justice of the Peace, because of this supersedeas bond.

The replevin action of Mitchell v. Watts was tried to a jury in the Cleveland Circuit Court (respondent presiding) on September 27, 1954, and the verdict was against Watts. Thereupon — on the same day — the Court rendered judgment against Watts and against these petitioners, who were the sureties on his supersedeas bond. A. D. Chavis was present in court representing Watts when the judgment was rendered against the sureties. The correctness of such judgment against the sureties is to be discussed in Topic I, infra. Notice of appeal to the Supreme Court was given in regard to the judgment of September 27, 1954, but no appeal was ever perfected and the judgment became final.

Then, on June 30, 1955, the petitioners filed in the Cleveland Circuit Court their “Petition to Vacate a Void Summary Judgment,” which stated, in effect, that a summary judgment was entered against the petitioners on September 27, 1954 and that the Court was in error in entering said summary judgment because the said A. D. Chavis and wife were not sureties on the “cross bond” of the defendant, Sterling Watts (the motion failed to mention in any respect the fact that Chavis and wife were sureties on the supersedeas bond). On July 11, 1955, the foregoing petition of Chavis and wife was heard in the Cleveland Circuit Court (respondent presiding), and the following order was made:

“Now on this day comes on for hearing the petition filed by A. D. Chavis and Alma Chavis, as sureties on bond for Sterling Watts, and comes the defendant, Max Smith, by his attorney, Jay W. Dickey,- and the court doth find that judgment was entered on the 27th day of September, 1954, on said bond in open court, in the presence of A. D. Chavis and other parties to the suit, and that no objection was made at that time, and that no appeal was taken therefrom, and thereafter, A. D. Chavis filed a petition requesting that execution be quashed, and same was denied; and further that the term of court has expired in which the denial was made, and this court does not have further jurisdiction of the matter. The court further finds that after said petition was denied, A. D. Chavis prayed an appeal to the Supreme Court of Arkansas from the order denying the motion to quash execution; and the Court finds that the said A. D. Chavis has failed to perfect his appeal, and that the petition filed herein should be dismissed.
“IT IS, THEREFORE, by the court considered, ordered and adjudged that the petition of plaintiffs filed herein be and the same is hereby dismissed.”

Thereafter, on July 15, 1955 (four days after the above order) the petitioners filed á pleading entitled: “Amendment to Original Petition of Alma Chavis and A. D. Chavis to Vacate and Set Aside a Void Summary Judgment That Was Entered Against Them in the Above Case.” This said pleading reiterated many of the matters contained in the pleading previously ruled on and contained this statement:

“That the Court agreed to hear the original petition herein, on the 11th day of July, 1955, at Rison, Arkansas, and both contending sides were present in court, ready for a hearing which was partially heard, then abruptly ended by the Court’s verbal opinion that said summary judgment was founded upon and rested upon an old appeal bond made in a J. P. Court for appeal to the Cleveland Circuit Court, which appeal bond was made and fulfilled its mission in the perfection of that appeal from the J. P. Court to the Cleveland Circuit Court ...”

The Cleveland Circuit Court (respondent presiding) refused to consider as filed the pleading of July 15, 1955; and then on August 5, 1955, the petitioners filed a motion in the Cleveland Circuit Court praying that the Court rule on the pleading of July 15th. The Cleveland Circuit Court refused to consider as filed this motion of August 5, 1955; and then the petitioners filed the mandamus proceeding in this Court. There are several “side issues,” but the foregoing recitals present the material facts and indicate the issues involved.

I. The Liability of Sureties On A Supersedeas Bond Filed Under § 26-1302 Ark. Stats. The determination of this point is the fundamental issue in the case. Petitioners say that the Cleveland Circuit Court had no right to render summary judgment against them on September 27, 1954, because, as sureties, they were entitled to ten days ’ notice before summary judgment could be entered, and they cite § 29-201 Ark. Stats., which requires ten days ’ notice to a surety before summary judgment can be rendered. But petitioners are in error in this contention because § 29-201 is net the applicable Statute in a situation such as is here before us.

The petitioners filed a supersedeas bond in the Justice of the Peace Court in substantially the form stated in § 26-1302 Ark. Stats. We held in the case of Judd v. Wilson, 182 Ark. 729, 32 S. W. 2d 614, that one who signed such a supersedeas bond made himself a party to the proceedings and was, therefore, constructively present at every step of the litigation, and that a judgment against the principal warranted a judgment against the surety. So when Mr. and Mrs. Chavis signed the super-sedeas bond in this case they, in effect, became parties to the litigation; and when judgment was rendered against Watts, judgment could properly be rendered against the sureties without any further notice.

The bond did not serve its purpose merely to get the ease from the Justice of the Peace Court to the Circuit Court, as the petitioners claim: rather the bond was a continuing obligation, and the judgment against the sureties is not governed by the summary judgment Statute, but is governed by the provisions of § 26-1302 Ark. Stats., as construed by this Court in the case of Judd v. Wilson, supra. That case settles the power and right of the Circuit Court to render judgment against Mr. and Mrs. Chavis on September 27, 1954. The judgment was not a summary judgment under § 29-201 Ark. Stats., as petitioners suggest, but was a judgment on the super-sedeas bond under §. 26-1302 Ark. Stats, and is governed by the holding in Judd v. Wilson, supra.

II. The Limitations on Mandamus Proceedings. We have many, many cases of this Court showing the limitations on the use of the writ of mandamus. In Jackson v. Collins, 193 Ark. 737, 102 S. W. 2d 548, we held that mandamus could not be used to correct an erroneous decision already made. So if the petitioners herein thought that the judgment against them of September 27, 1954, was erroneous, they should have perfected their appeal to this Court. In Calloway v. Harley, 112 Ark. 558, 166 S. W. 546, we quoted from an earlier case:

“ ‘As a general rule the party applying for a writ of mandamus must show a specific legal right to its issuance, and also the absence of any other legal remedy. For it is a well settled principle that mandamus will not be allowed to take the place of, or usurp the functions of, an appeal. Automatic Weighing Co. v. Carter, 95 Ark. 118.’ ”

Again, in Carter v. Marks, 140 Ark. 331, 215 S. W. 732, in affirming the action of the Circuit Court which denied a writ of mandamus involving a Probate Court matter, we said:

“Petitioner had a full year in which to perfect his appeal, yet, without complying with the requirements of the Statute hy filing an affidavit for appeal, he waited until after the expiration of the year and then applied for a discretionary writ upon the ground that his year had expired and that he had no other adequate remedy. ’ ’

So, here, the petitioners had the right of appeal from the judgment of September 27, 1954. They gave notice of appeal and specified the points, one of which was that the Court was in error in rendering the judgment against them; yet the petitioners suffered that appeal to lapse. Then when the Court made its ruling on July 11, 1955 denying the “Petition to Vacate a Void Summary Judgment,” the petitioners had a right of appeal which they could have pursued; so they cannot claim now that they are entitled to a writ of mandamus.

In McBride v. Hon, 82 Ark. 483, 102 S. W. 389, the Circuit Court dismissed some defendants from the case on a demurrer; and thereafter the plaintiff sought to redocket the case against those defendants. The Circuit Court refused to re-docket the case, and the plaintiff brought mandamus proceedings in this Court, seeking to require the Circuit Court to rule on the motion to reinstate. "We said:

“Now Mrs. McBride petitions this court to compel the circuit judge, through a writ of mandamus, to docket said cause and set the same for trial. The petition can not he sustained. The determination of the motion to docket the case was a judicial question. Hempstead County v. Grave, 44 Ark. 317; ex parte Johnson, 25 Ark. 614.”

In the case at bar the Circuit Court ruled on the petitioners’ motion on July 11, 1955. The attempt to file an amendment and seek another ruling was really an attempt to have the case re-docketed, and this the Circuit Court refused to do because he had already ruled on the motion.

The petition for writ of mandamus is denied.

       See Rules of this Court, effective January 10, 1954, concerning original proceedings, i.e. Rules 16 and 17.

       Aside from the pleadings and exhibits, the remainder of the record in this Court consists of copies of correspondence and of affidavits that have been filed without objection from either side.

       The bond reads in part: “Whereas, the defendant, Sterling Watts, has appealed from the ruling and judgment of Van McKinney, a Justice of the Peace in and for the Township of Bison, in the County of Cleveland, in an action between J. D. Mitchell, Plaintiff, and Sterling Watts, defendant: Now, if said Sterling Watts will prosecute his .appeal with due diligence to a decision, and if, on such appeal, the judgment of the justice be affirmed, or if, on the trial anew in the Circuit Court, judgment be given against the appellant, he shall satisfy the judgment, or if his appeal be dismissed, he shall pay the judgment of the Justice, together with the costs of the appeal, this bond shall b.e void.”

       The motion of August 5th read: “Come Petitioners, Alma Chavis and A. D. Chavis, and file their motion for the court to pass on and enter an order, allowing or disallowing their original petition with their amendment thereto, for the vacating of a Summary Judgment entered against them, in the above Replevin suit, in which suit they were not parties, nor were they on any cross-bond in that suit, — which petition and amendment thereto were filed for separate relief, under § 27-907 of Arkansas Statutes of 1947, with all other relief asked for in their (petition) and the amendment to their petition, now pending.”

       Even if petitioners were correct as to § 29-201 being the applicable Statute, still the record shows that Mr. Chavis was present in court on September 27, 1954 and did not claim the benefit of the ■ 10-day Statute, so he might have waived it by such failure to object; but we rest our decision on the ground stated in the opinion.

       See West’s Arkansas Digest “Mandamus”, Key- No. 1 et seq.


author: MmoK W. Millwee, Associate Justice. George Rose Smith, J.,

text:
    Reynolds Metal Company v. Brumley.
    5-927
    290 S. W. 2d 211
    Opinion delivered May 14, 1956.

      Wright, Harrison, Lindsey & Upton, for appellant.

      Tom Gentry and Joe W. McCoy, for appellee.
   MmoK W. Millwee, Associate Justice.

This case involves the applicable statute governing the time limit within which a claim for additional compensation must be filed under the Workmen’s Compensation Law.

There is no dispute in the material facts. Appellee, William J. Brumley, suffered a cerebral thrombosis while working for appellant, Reynolds Metals Company, on September 20, 1950, resulting in an immediate loss of vision in the left eye and a slight paralysis of the left side of his body. His claim for compensation was controverted by the company and its insurance carrier. After hearings before one commissioner and the full Commission, the latter, on March 6, 1952, found that ap-pellee had sustained a compensable accidental injury arising out of the course of his employment. There was an award of compensation for temporary total, disability at the rate of $25 per week from December 2, 1950 to January 16, 1951 and, beginning with the latter date, compensation at the same weekly rate for a period of 100 weeks for the loss of vision in the left eye. It was further directed that appellants pay the reasonable medical and hospital bills incurred by appellee as a result of the injury. There was no appeal from this award.

The last payment of the 100 weeks compensation awarded for loss of vision was made to appellee on December 8, 1952 and he signed a “Pinal Receipt” for the benefits awarded. Appellee continued working on the assumption and medical finding that the disability from the injury to his left side was temporary in nature. On October 26, 1953, he became unable to work and reported to Dr. Cole, a company doctor, who sent him to Dr. Robert "Watson in Little Rock, Arkansas on October 30, 1953. Appellee was placed in the Baptist Hospital where he remained nine days under the observation, examination and care of Dr. Watson who" was then under the mistaken belief that appellee had a brain tumor.

The letter from appellants to Dr. Watson for the Little Rock appointment stated that he was to see ap-pellee for examination only, but appellee was never so advised. Upon appellee’s release from the hospital on November 7, 1953, Dr. Watson gave him a prescription for 100 tablets of nicotinic acid, to be taken over a period of thirty days, and advised appellee to rest and take reasonable exercise without over-exertion. According to Dr. Watson, this constituted the only known treatment for one in appellee’s condition which had gradually progressed since tlie original injury from total temporary disability to total permanent disability. Appellee made additional trips to see Dr. Watson on November 23, 1953 and February 10, 1954. The insurance carrier paid appellee for the medicine prescribed by Dr. Watson and his expenses incurred on the first trip to Little Rock on December 2, 1953. It also paid appellee’s hospital bill of $152.55 on February 4, 1954 and made a final payment to Dr. Watson for his services on February 18, 1954.

Appellee filed his claim for additional compensation for total and permanent disability on May 4, 1954. At a hearing before a single commissioner on September 14, 1954, appellants pleaded Section 18 (b) of the Workmen’s Compensation Law as a complete bar to the claim. This section now appears as Ark. Stats. Sec. 81-1318 (b), 1955 Supplement, and reads: “Additional compensation. In eases where compensation for disability has been paid on account of injury, a claim for additional compensation shall be barred unless filed with the Commission within one [1] year from the date of the last payment of compensation, or two [2] years from the date of accident, which ever is greater.” Appellants’ plea was sustained by order of the commissioner on November 4, 1954.

On appeal to the full Commission, a hearing was held January 31, 1955 in which appellants pleaded Section 26 of the Compensation Act as a bar to the claim. This section now appears as Ark. Stats. Sec. 81-1326, 1955 Supplement, and provides: “Modification of awards— Except where a joint petition settlement has been approved the Commission may at any time within six [6] months of termination of the compensation period fixed in the original compensation order or award, upon its own motion or upon the application of any party in interest, on the ground of a change in physical condition or upon proof of erroneous wage rate, review any compensation order, award or decision, and upon such review may make an order or award terminating, continuing, decreasing or increasing for the future the compensation previously awarded, subject to tbe maximum limits provided for in this Act [§ 81-1301 — 81-1349]. Such review and subsequent order or award shall be made in accordance with the procedure prescribed in Section 23 [§ 81-1323] hereof. No such review shall affect any compensation paid pursuant to a prior .order or award. The Commission may at any time correct any clerical error in any compensation order or award.” The full Commission sustained appellants’ new plea and again dismissed appellee’s claim. On appeal to Circuit Court this finding was reversed and the claim was held to be filed within the time prescribed by law.

For reversal of the circuit court judgment, appellants contend, as the full Commission found, that Sec. 81-1318 (b), supra, has to do only with the time of filing a claim when voluntary payments of compensation have been made as distinguished from payments made as the result of an award or order of the Commission after a hearing. "We find no such distinction in the statute which is clearly made applicable to a claim for additional compensation in cases where compensation for disability has been paid on account of injury. The instant case is of that character. In Sanderson & Porter v. Crow, 214 Ark. 416, 216 S. W. 2d 796, this section, which then appeared as Sec. 18 (a), was held to impose an absolute limitation on the time for filing a claim for additional compensation under the Compensation Act. In Ragon v. Great American Indemnity Co., 224 Ark. 387, 272 S. W. 2d 524, we held that the cost of medicine and medical, surgical or hospital services was a part of “compensation” under Sections 2 (i) and ll.of the Compensation Act. This decision was handed down December 20, 1954 and doubtless prompted appellants’ change of defense at the hearing before the full Commission on January 31, 1955.

There appears to he some merit in appellee’s contention that he has not sought a review or modification of the original award within the meaning of Sec. 81-1326, supra, which merely constitutes a grant of additional power to the Commission and not a statute of limitations. However, if it be conceded that said section is a statute of limitations, there is sufficient ambiguity between it and Sec. 81-1318 (b) as to cast considerable doubt as to which one is applicable to the instant proceeding. In this situation we are committed to the rule that if a substantial doubt exists as to which is the applicable statute of limitations, the longer rather than the shorter period of limitation is to be preferred and adopted. Jefferson v. Nero, 225 Ark. 302, 280 S. W. 2d 884. This rule is in harmony with our settled policy of giving a broad and liberal construction to the provisions of the Compensation Act to effectuate its purposes and the further policy of resolving doubtful cases in favor of the claimant. E. H. Noel Coal Company v. Grilc, 215 Ark. 430, 221 S. W. 2d 49; Triebsch v. Athletic Mining and Smelting Co., 218 Ark. 379, 237 S. W. 2d 26.

By our holding in the Bagon case, supra, the furnishing of medicines and medical services to appellee in November and December, 1953 and February, 1954 constituted payment of “compensation” to appellee within the meaning of Sec. 81-1318 (b), supra. This holding follows the general rule that where an employer or his insurance carrier has furnished an injured employee medical and hospital services, this constitutes a payment of compensation or a waiver which suspends the running of the time for filing a claim for compensation. See cases from other jurisdictions cited in 144 A. L. R. 617. In this connection, we cannot agree with appellants’ further contentions that the medical services performed by Dr. Watson were in the nature of “an examination only” and that, even if such services constituted “treatment,” same would not toll the statute because they were not furnished pursuant to a requirement of the Commission. The original award required appellants to pay reasonable medical and hospital hills incurred as a result of appellee’s injury and it is undisputed that Dr. "Watson prescribed medicine to be taken over a 30-day period along with rest and reasonable exercise as the only treatment known to him for "appellee’s condition. In our opinion such services amounted to treatment and not merely an examination, as was true in Wilson v. Border Queen Kitchen Cabinet Co., 221 Ark. 580, 254 S. W. 2d 682, relied on by appellants. We are of the further opinion that appellants must be held to have waived the requirement of a Commission order by voluntarily furnishing the medical services after the six months period provided in Sec. 81-1311. See Blahut v. Liberty Creamery Company (Mo. App.) 145 S. W. 2d 506; Buecker v. Roberts, (Mo. App.) 260 S. W. 2d 325; Ketchell v. Wilson & Co., 138 Kan. 79, 23 Pac. 2d 488, and other cases to the same effect which are cited in Fifth Decennial Digest, Workmen’s Compensation, Key No. 1295.

It follows that appellee filed his claim for additional compensation well within one year from the date of the last payment of compensation as provided in Section 81-1318 (b) which we find to be the applicable statute of limitations. The judgment is accordingly affirmed.

George Rose Smith, J., dissents.

George Rose Smith, J.,

dissenting. I would remand the case to the Commission for its determination of a question of fact that was not reached at the original hearing. The appellee was sent to Dr. Watson for examination only. The required examination proved to involve elaborate procedures that kept the patient in the hospital for more than a week and that were extremely painful. Partly, if not wholly, to alleviate this pain Dr. Watson prescribed sedatives and the use of nicotinic acid. He also told the patient that he should take routine exercise and avoid overexertion in the future. It seems to me that the record presents an issue of fact as to whether these matters amounted to treatment furnished by the employer, If the Commission should hold that the medication and advice were merely incidental to the diagnostic examination and did not amount to the giving of treatment, that holding would in my opinion he supported by substantial evidence. Consequently I think the majority have decided an issue of fact that should be determined by the Commission alone.

       This section appears as Ark. Stats. § 81-1302 (i), 1955 Supplement and reads: “ ‘Compensation’ means the money allowance payable to the employee or to his dependents, and includes the allowances provided for in § 11 [§ 81-1311], and funeral expense.”

       This is Ark. Stats. § 81-1311, 1955 Supplement and reads in part: “The employer shall promptly provide for an injured employee such' medical, surgical, hospital and nursing service, and medicine, crutches, artificial limbs and other apparatus as may be necessary during the period of six months after the injury, or for such time in excess thereof as the Commission, in its discretion, may require.”