author: Paul Ward, Associate Justice. J. Seaborn Holt, J.,

text:
    J. A. Gipson v. Crawfis.
    5-822
    286 S. W. 2d 336
    Opinion delivered January 30, 1956.

      Kenneth G. G of felt, for appellant.

      Bailey, Warren & Bullion, for appellee.
   Paul Ward, Associate Justice.

On May 2, 1955, appellant, for the benefit of himself as a taxpayer and for all taxpayers of Arkansas, instituted in the Chancery Court of Pulaski- County Suit No. 102404 against Dr. E. H. Crawfis, Superintendent of the Arkansas State Hospital, K. W. Newman and W. E. Lester, as disbursing officers of the Hospital, and the Standard Accident Insurance Company, as surety for Newman and Lester. The charges against the appellees, as gathered from the pleadings and the admitted facts, may be stated as set out below. Crawfis, as Superintendent of the Hospital, unlawfully drew, and Newman and Lester unlawfully paid to him, money out of the cash funds of the Hospital and the State -Treasury, in excess of his salary as prescribed by the Legislature. The prayer was that the defendants (appellees) be required to return the excess payments to the source from which it came and that they be restrained from similar activities in the future.

The excessive payments complained of are of three different kinds, viz:

.1. The sum of $1,552.48 paid out of cash funds for moving Dr. Crawfis’ household belongings from California to Little Rock; 2. The sum of $1,947.30 paid out of cash funds for furniture and carpet for the house assigned to Dr. Crawfis by the Hospital [The complaint alleges that Dr. Crawfis has converted said furniture to his own use, but it conclusively appears that he has not and that it belongs to the State], and; 3. The sum of $1,447.67 being the amount paid out of money appropriated by the Legislature for the service of a maid assigned to Dr. Crawfis’ home.

For answer to the above charges, the defendants (appellees) admit the above expenditures, but claim they were lawfully made under the provisions of Act 501 of 1953.

The Chairman and Members of the Hospital Board filed an intervention, adopting the defendants’ answer, and stating that all said expenditures had been by them first duly considered and then approved.

We will for convenience hereafter refer to the above suit as the “First Case.”

On April 18, 1955, a similar suit, No. 102296, had been filed in like manner by appellant against the same Mr. Newman and Mr. Lester. This suit, which we will hereafter refer to as the “Second Case,” was by the trial court consolidated and heard with the First Case. The charges in the Second Case, as taken from the pleadings and admitted facts, are hereinafter set out.

1. In 1953 Newman held the position of Assistant Hospital Administrator which the 1953 Legislature created and fixed the salary of $6,500. Later the Hospital Board abolished this office and created a new position, designated as Director of Administration, and fixed the salary at $8,500. Newman entered upon the duties of the new position in February 1954 and held it until some time in October 1954 at the salary of $8,500 — an excess of $1,250 over the salary fixed by the Legislature as stated above. This excess of $1,250 was paid out of the cash funds of the Hospital. The prayer was for judgment against Newman for $1,250, and that he be restrained from drawing further excess salary.

2. Lester began working for the Hospital in January of 1954 as Chief Accountant at a salary of $4,500 as provided by the 1953 Legislature. On June 29, 1953 the Hospital Board created the office of Procurement and Disbursing Officer, and fixed the salary at $5,700. Lester drew this salary as Procurement and Disbursing Officer for one year prior to the filing of this suit, and has therefore drawn an excess in salary of $1,200. This excess was also paid out of the Hospital cash fund. The prayer was the same as in the Newman case.

By way of answer to the charges against him Newman admits drawing the salary of $8,500 for the time alleged but states: the office of Director of Administration was created by specific resolution of the Hospital Board, fixing the salary; that said office contained new and separate duties from any office or position theretofore existing, and; that it was all authorized by Act 127 of 1939. Lester admits drawing the salary of $5,700 as Procurement and Disbursing Officer for the alleged time, but states that the new position and salary were authorized by the Board, all of which was regular and proper.

The Hospital Board intervened in behalf of Newman and Lester, adopting their answers and exhibiting resolutions creating the two new positions or offices and fixing the salaries.

After hearing the testimony the chancellor dismissed appellant’s complaint in both cases, and this appeal follows.

There is no material conflict in the testimony introduced in either of the cases, so instead of summarizing it separately we shall refer to it hereafter in the discussion that follows.

FIRST CASE. Appellant’s argument for a reversal may be stated as follows: When the Legislature creates an office or position in any state institution, just as Act 501 of 1953 designated the office of Superintendent of the State Hospital and fixed the salary at $12,000, the governing body of that institution has no power to pay or authorize the payment of a larger salary, and; The payments mentioned heretofore for the benefit of Dr. Crawfis amounted to an increase in his salary. In support of this argument appellant relies on Article 16 Section 4 of the Constitution and on the pronouncements in Gipson v. Ingram, 215 Ark. 812, 223 S. W. 2d 595. It is unnecessary to discuss the authorities above mentioned because we agree with appellant that when the Legislature designated the office or position of Superintendent of the State Hospital and fixed the salary, the Hospital Board had no right to increase his salary. We do not however agree that the three items complained of above amounted to an increase in Dr. Crawfis’ salary. This being true it makes no difference therefore whether some of the items were paid for out of cash funds belonging to the Hospital. The status of an institution’s cash fund was clearly stated in the Ingram case, supra, which held that such funds need not be paid into the State Treasury and thereafter appropriated by the legislature before they can be expended.

After careful consideration we have concluded that the Hospital Board had the right under the Appropriation Act 501 of 1953 to make the expenditure in each of the three items complained of. Section 2(3) of said Act appropriated $1,143,000 per year for maintenance. Section 3 of the Act states that “maintenance” is limited to include food and housing for the superintendent [along with numerous other employees]. We think the word “housing” must be interpreted to include household furniture and that the word “food” must be interpreted to include prepared food and not merely groceries. Therefore it clearly appears to us that the Board had authority to buy the furniture and carpet for Dr. Crawfis’ house which was furnished to him. It is not quite so clear that this could include paying for moving Dr. Crawfis’ household effects from California to Little Rock. It seems to follow however that if this had not been done then the Board would have been faced with the necessity of buying additional furnishings for the house. The mere fact that the Legislature entrusted to the Board the responsibility of spending over a million dollars for maintenance compels the conclusion that it was the intention of the Legislature that the Board would have the right and duty of exercising wide discretion. The record leaves no doubt that the Board wisely exercised said discretion in employing Dr. Crawfis and we think they had considerable discretion in doing what they thought necessary to secure his services. Said Act 501 of 1953 provided for 74 waitresses and fixed the salary of each. The Act did not provide for any “maids.” This seems to be the title which appellant has assigned to Ova Young who, it is admitted, was assigned to Dr. Crawfis’ home. Undoubtedly she was one of the waitresses provided by the Legislature. Again, we think the Board did not abuse its discretion in assigning Ova Young to Dr. Crawfis’ home, since he and his family were entitled to have their food prepared and served. It would be unreasonable to hold that the Legislature, in such instances, has the sole right to specify the exact duties to be performed by each of the numerous employees. That this assignment of Ova Young was not merely a subterfuge to increase Dr. Crawfis’ salary is conclusively shown by the fact that she had previously served other superintendents in the same capacity.

Having concluded as we do that the Board was justified, in the exercise of its discretion, in classifying the first two items mentioned above as items of maintenance there can be no question but that the Board could have paid for these items out of the maintenance appropriation. Instead of doing this however they paid said items out of cash funds belonging to the Hospital, and it is contended that they had no right tq do so. Support for this contention is sought to be found in the Ingram case, supra. We are unable however to find in the Ingram case any inhibition against such use of cash funds. The one definite holding in that case, as above stated, was that cash funds could not be used to pay an increase in salaries fixed by the Legislature, and, as heretofore stated, we are in thorough agreement with that holding. Except for this one limitation on the use of cash funds, the Ingram case placed no other limitation on the use of such funds. On the other hand the language in that opinion indicates that the cash fund of any institution may he used for almost unlimited purposes aside from increasing salaries. On page 814 of the Arkansas Reports it shows that Gipson alleged “that the state agencies and institutions are expending cash funds as the governing boards see fit, and without legislative appropriation; . . .” With knowledge of the above allegation the court stated: “There is only one allegation that anything is being done in violation of what the legislature has permitted, and that allegation is that some portions of the cash funds are being used to supplement the salaries . . .” Again this court, in the Ingram case, in noting the absence of any provision in our present constitution requiring cash funds to be placed in the State Treasury, said: “Certainly, such omission leaves the legislature of this state free to provide that public money derived as in this case may be deposited as cash funds, for the use of the state agencies and institutions.”

In the face of the above clear declarations by this court in regard to the use of cash funds of institutions we think it would lead to a confused situation for us to now hold that such funds could not be used for the two items mentioned above. If we should so hold it would be hard to understand how the governing board of any institution would ever know for what items it could expend cash funds. What rule could the board use to distinguish between what is for maintenance and what is not or when it is safe to use cash funds? As stated in the Ingram case, supra, the Legislature has the power to say what disposition shall be made of cash funds belonging to the state institutions, but up until now it has not done so. Until it does it seems to us that much must be left to the discretion of the governing board.

We therefore conclude that the trial court was right in dismissing appellant’s complaint in this case and his action in so doing is hereby affirmed.

SECOND CASE. In the case of Newman we may fairly conclude from the record that the Hospital Board acted in all good faith and apparently with good sound business judgment when it abolished two of the positions created by the Legislature in 1953 carrying a total of $11,000 in salaries and in lieu thereof created the position of Director of Administration with a salary of $8,500. In the case of Lester we are also convinced from the record that the Hospital Board thought it had the legal authority and thought they were acting for the best interest of the institution when it created the new position designated as Procurement and Disbursing Officer and fixed the salary at $5,700. In 1953 the Legislature passed Act 41 sometimes called the Fiscal Code Act. Among other things this Act set up a central purchasing agency for the state. Article 7 Section 3 of that Act no doubt led the Hospital Board to believe that it had the right to designate the purchasing agent for the Hospital.

Notwithstanding the above however we are forced to the conclusion that the Hospital Board did not have the power and authority to establish these positions or offices and designate the salaries. An examination of our Constitution as well as the former decisions of this court compels this conclusion.

Article 16, Section 4, of the Constitution reads as follows :

“The General Assembly shall fix the salaries and fees of all officers in the State, and no greater salary or fee than that fixed by law shall be paid to any officer, employee or other person, or at any rate other than par value; and the number and salaries of the clerks and employees of the different departments of the State shall be fixed by law. ’ ’

It seems that it would be sufficient in this connection merely to rely on the last sentence of the section above quoted. It says “the number and salaries of the clerks and employees of the different departments of the State shall be fixed by law.” It is admitted of course that the salaries of Newman and Lester were not in this instance fixed by law. The first part of the quoted section explains the meaning of “fixed by law.” It says that the General Assembly shall fix the salaries and fees. Also, as we shall later see, this power of the Legislature to create offices or positions and fix salaries cannot be delegated to any person or board.

The portion of the Constitution quoted above has heretofore been construed by this court in harmony with and support of the conclusion we have reached.

In the case of Nixon v. Allen, 150 Ark. 244, 234 S. W. 45, this court declared unconstitutional portions of Act 264 of 1921 which, among other things, purported to give the Circuit, Chancery and County Judges the power to appoint deputies to certain county offices and fix their compensation. In reaching its conclusion the court quoted Article 16 Section 4 of the Constitution and then made this statement: ‘ ‘ The power to fix the salaries and fees of all officers in the State and the number of their clerks and employees and their salaries, is a function, which, within the limits of the constitution, is lodged in the supreme law-making power of the State — the Legislature.” After citing authorities the court also said: ‘ ‘ The General Assembly cannot delegate this legislative power to any individual, officer, or board.” In this same case the court very clearly stated the reason for such a constitutional provision. The court said that it was “. . . intended by the framers of our organic law to forestall, if possible, any extortion, extravagance, or corruption on the part of those entrusted with the administration of public office, and to promote the general welfare by protecting the people from exorbitant taxation in order to meet the necessary burdens of government. ’ ’

The Nixon case, supra, was followed and quoted extensively in the case of Director of Bureau of Legislative Research v. Mackrell, 212 Ark. 40, 204 S. W. 2d 893. The court there was dealing with an Act of the 1947 Legislature which created the Legislative Council but failed to appropriate money to pay the employees provided for in the Act. It was alleged that the State Board of Fiscal Control was attempting to allocate funds to the Legislative Council to pay the salaries of the employees of that board. Belying largely upon the decision in the Nixon case, supra, the court held that the payment of salaries in this manner would he in violation of Article 16 Section 4 of the Constitution. In speaking of this constitutional provision the court stated that its purpose was “. . . to prevent the expenditure of the people’s tax money without having first procured their consent, expressed in legislative enactments . . .”

Under the views above expressed, there is no merit in appellees’ contention that the Hospital Board had the right under Act 127 of 1939 and Act 240 of 1933 to create new positions for Newman and Lester and fix their salaries. The pertinent parts of said Act 127 relied on by appellees are now Ark. Stats. Sections 59-226 and 59-227, and the pertinent part of Act 240 is now Ark. Stats. Section 59-208. The first cited section provides that cash funds shall be deposited in a bank designated by the Hospital Board, and the second cited section authorizes the Board to use the cash funds for “maintenance, support and expenses of the State Hospital . . .” The last cited section authorizes the Board to employ “. . . such persons, guards, nurses, physicians, officers, assistants and attendants as may be necessary . . . and fix their compensation . . .”

We do not interpret the above sections as giving the Hospital Board authority to create new positions as was done here. If, however, they should be so interpreted then they would be, as heretofore shown, in conflict with Article 16 Section 4 of the Constitution.

The only remaining question is: Should Newman and Lester be compelled to repay the money received for excess salaries, being $1,250 in the case of Newman and $1,200 in the case of Lester? Our opinion is that this question must be answered in the affirmative.

As heretofore shown the excess payment in each instance was a violation of Article 16 Section 4 of the Constitution. In such cases this court has uniformly held that repayment can be enforced. One of the landmark cases is Tallman v. Lewis, 124 Ark. 6, 186 S. W. 296. This case was cited with approval and commented on extensively in the ease of Vick Consolidated School Dist. No. 21 v. New, 208 Ark. 874, 187 S. W. 2d 948. In the latter case the school district had paid New who had tanght without a license contrary to the provisions of the law, and it was held that he had to repay the amount so received. At page 880 and 881 of the Arkansas Reports the court set forth three classifications where repayments in such instances could or could not be enforced. Under the third classification the court said:

“There are those cases in which an individual has dealt with the district, council, board, or other governmental subdivision in plain violation of the letter of the statute, and has received public money under a course of dealings forbidden by statute. In those cases the courts have not only refused the individual the quantum meruit for his services rendered, but have also allowed recovery by the governmental subdivision of any moneys paid the individual on a contract forbidden by statute.” Citing the Tollman case, supra, and other cases.

The case of Barber v. Edwards, 200 Ark. 940, 141 S. W. 2d 831, dealt with a fencing district which had been enlarged and the Board of Assessors sought to increase the salary of the pound keeper due to the additional duties which he was forced to perform. In speaking of the legislative act which fixed the original salary the court said: ‘ ‘ Section 1 of said Act 290 of 1905 fixed his salary at ‘not exceeding $30.00 per month in addition to his fee as now provided by law.’ Perhaps his duties were largely increased by reason of the annexation of the new territory in 1936, but his salary is still fixed by said act and may not now be increased by the board without authority of law.”

In the Second Case since it appears that Newman’s and Lester’s excess salaries were paid out of the Hospital cash fund, Newman should be directed by the trial court upon remand to repay into the said fund $1,250, and Lester should be likewise directed to repay the sum of $1,200.

Accordingly the decree of the trial court in the First Case is affirmed, and the decree in the Second Case is reversed and remanded for further action as directed by this opinion.

Chief Justice Seamster and Justices Holt and Robinson dissent in Second case.

J. Seaborn Holt, J.,

dissenting in part. I think the decree should be affirmed as to all of the appellees.

At the outset we must keep in mind that we are not dealing with State Funds that have been deposited in the State Treasury and, therefore, would be subject to Legislative control when and if so deposited. In other words, we are dealing with cash funds that have never been deposited in the State Treasury, but are kept in a separate State Hospital Fund. The Legislature, under our recent holding in Gibson v. Ingram, 215 Ark. 812, 223 S. W. 2d 595, has the power to require all cash funds to be deposited in the State Treasury, but it has not done so as to the cash funds here involved.

Under Ark. Stats. §§ 59-208, 59-226 and 59-227, I think the Hospital Board has the authority to do exactly what it did here. The majority, referring to the provisions of the above sections, point out that § 59-226 provides that cash funds shall be deposited in a bank designated by the Hospital Board, and Section 59-227 authorizes the Board to use the cash funds for maintenance, support, and expenses of the State Hospital. Section 59-208 provides: “The Board may employ, or may authorize the employment of, such persons, guards, nurses, physicians, officers, assistants and attendants as may be necessary for the efficient and economical administration of the hospital, and shall fix their compensation, which shall be payable monthly.”

The record reflects that in February 1954 the Hospital Board was faced with the necessity of cutting back its cost of operation in order to meet a declining budget and in its judgment it became necessary to abolish certain positions then in existence and to consolidate and create new positions, consolidating the duties of certain of the old positions, and were all paid for out of Cash Funds. The State Hospital Board, acting under what it considered to be the best interest of the State Hospital, created the position of Director of Administration and abolished the positions of Assistant Hospital Administrator and Director of Personnel. The salary of the Assistant Hospital Administrator was $6,500 a year and that of the Director of Personnel $4,500 a year, or a total of $11,000 a year. The new position created by the Board contained the duties of both of the above positions, plus additional duties, and the salary was set by the Board of Control at $8,500 a year, paid from Cash Funds, thereby effecting a savings of $2,500 a year, in addition to providing more efficient management. It is significant to note that the new position created by the Board was submitted to the 1955 Legislature and is now contained, on a permanent basis, in the Appropriation Act under the identical title as created by the Board of Control. It is hardly necessary to say that the wisdom and advisability of allowing State Agencies to effect policies of reorganization and retrenchment where possible cannot be seriously questioned. Necessarily these agencies, and particularly the Hospital Board, must and do have a broad discretion.

In the Gibson v. Ingram case above, we said: “It will be observed that in the quoted provisions from these Constitutions there is the requirement of deposit into the treasury. But when these Constitutions are compared with the present Arkansas Constitution (of 1874), it is clear that our present Constitution requires only that money in the treasury shall not be removed except by legislative appropriation. There is no requirement in the present Arkansas Constitution that all public money shall be paid into the state treasury. The absence of such a provision from our present Constitution appears to have been a studied and deliberate omission. Certainly, such omission leaves the Legislature of this State free to provide that public money derived as in this case may be deposited as cash funds, for use by the state agencies and institutions.”

In my view there has been no violation here of any statute or constitutional provision of Arkansas.

The Chief Justice and Justice Robinson join in this dissent.


source: Caselaw Access Project

author: Sam Robinson, Associate Justice.

license: Public Domain

text:
    Hicks v. State.
    4813
    287 S. W. 2d 12
    Opinion delivered January 30, 1956.
    [Rehearing denied March 12, 1956.]

      Bex W. Perkins, W. B. Putman, for appellant.

      Tom Gentry, Atty. General, Thorp Thoma,s, Asst. Atty. General, for appellee.
   Sam Robinson, Associate Justice.

The appellant was charged with the crime of murder in the first degree. He was convicted of murder in the second degree. There is only one issue and that is whether the court erred in the giving of Instruction No. 11. Although specific objection was made to the giving of this instruction, the court did not rule on the objection and no exception was saved.

Ark. Stats. § 43-2723 provides: “In all cases appealed from the circuit courts of this State to the Supreme Court, or prosecuted in the Supreme Court upon writs of error, where the appellant has been convicted in the lower court of a capital offense, all errors of the lower court prejudicial to the rights of the appellant shall he heard and considered by the Supreme Court whether exceptions were saved in the lower court or not; and if the Supreme Court finds that any prejudicial error was committed by the trial court in the trial of any case in which a conviction of a capital offense resulted, such cause shall be reversed and remanded for a new trial, or the judgment modified at the discretion of the court.” The above statute applies only in cases where there has been a conviction of a capital offense. Here, although the appellant was charged with a capital offense, he was convicted of a lesser offense. In Edwards v. State, 110 Ark. 590, 163 S. W. 155, Chief Justice McCulloch said: “The Act of 1909 [Ark. Stats., 43-2723] to which counsel for defendant refers in his brief, relates only to a case in which there had been a conviction of a capital offense, and in all other cases we are not permitted to review alleged errors to which no exception has been saved. ’ ’

In Yarbrough v. State, 206 Ark. 549, 176 S. W. 2d 702, it is said: “Appellant, in the instant case, has not been convicted of a capital offense. We are not permitted, therefore, to review alleged errors to which no exceptions have been saved.” In the Yarbrough case, the court quotes as follows from McKinley v. Broom, 94 Ark. 147, 126 S. W. 391: ‘ ‘ On appeal from the circuit court, this court only reviews errors appearing in the record. The complaining party must first make an objection in the trial court, and this calls for a ruling on his objection. An exception must then be taken to an adverse ruling on the objection, which, ‘directs attention to and fastens the objection for a review on appeal.’ ”

In jury trials, either party has the right to have reduced to writing all of the instructions that are to be given by the court. Section 23 of Article 7 of the Constitution of Arkansas provides: ‘ ‘Judges shall not charge juries with regard to matters • of fact, but shall declare the law, and in jury trials shall reduce their charge or instructions to writing on the request of either party.” The purpose of this constitutional provision is to give counsel for either party an opportunity to study the instructions and to make objections and exceptions in the judge’s chambers, and, when done in that manner, there is no danger of the jury being influenced by rulings that the court makes on request for or objections to instructions.

In the case at bar, the record does not show at what point appellant made his objection to the instruction; in any event, no ruling of the court was obtained on the objection and no exception was saved. Therefore, we cannot consider the objection on appeal.

Affirmed.


author: Lee Seamster, Chief Justice.

text:
    Walker v. Blaney.
    5-829
    286 S. W. 2d 479
    Opinion delivered February 6, 1956.

      Gus Causbie, W. J. Schoonover and James A. Robb, for appellant.
    No brief for appellee.
   Lee Seamster, Chief Justice.

This is an appeal by the appellants from a decree of the Sharp Chancery Court, Northern District, whereby the trial court refused to grant judicial approval of a contract for the private sale of the remainder interest in a ninety (90) acre tract of real estate to the life tenant, and to have the proceeds reinvested, as directed by the court in some income producing property, the fund and accruements thereto to be held in trust for those persons constituting the ultimate vested remaindermen upon the death of the life tenant.

The appellants herein, Merle E. Walker and Helen Walker Blaney, are the only children of Samuel J. Walker, Jr. The appellee, Dennis Gerald Blaney, a minor, is the only child of Helen Walker Blaney. Merle E. Walker has no children. At the time of this suit there were no other bodily heirs of Samuel J. Walker, Jr.

The record reveals that on January 5, 1905, the appellants’ father Samuel J. Walker, Jr., received a deed from his parents to the property here involved. The granting clause of the deed contained the provision that the property was to be conveyed “Unto the said Samuel J. Walker, Jr., and unto his bodily heirs and assigns forever.” Later Samuel J. Walker, Jr., conveyed the land by mesne conveyance to one David Y. Johnson, the present owner of the life estate. Thereafter, in a suit between David Y. Johnson and the appellants, Merle E. Walker and Helen Walker Blaney, the Sharp Chancery Court decreed on January 13, 1951, that Johnson only held a life estate for and during the life of Samuel J. Walker, Jr. In the suit now upon appeal, the life tenant, David V. Johnson, is the proposed purchaser of the remainder interest in the tract of land.

The appellants and the appellee are the only contingent remaindermen in esse. Samuel J. Walker, Jr., is now seventy-two (72) years of age; Merle E. Walker is forty-nine (49) years of age and Helen Walker Blaney is thirty-one (31) years of age. The appellee will be eight (8) years old on May 9, 1956.

On September 29, 1954, David Y. Johnson, the life tenant, entered into a contract with the appellants by which, he agreed to pay $1,600 for the total remainder interests in the land. The contract obligated the life tenant to pay all the costs, including attorney’s fee involved in securing the necessary judicial approval for the sale of the land to the life tenant.

The trial court rendered a decree on June 13, 1955, whereby it made a finding as follows:

“That the said Samuel J. Walker, Jr., the life tenant under the terms of said deed is still living, and the persons who will constitute his bodily heirs and therefore take the ultimate fee simple title upon the termination of the life estate, are unknown and cannot be known with certainty until the death of the said tenant, and although all of the living descendants of the said Samuel J. Walker, Jr., are parties to this action, and constitute all of the known prospective bodily heirs of him, the class of persons who will take the remainder as such bodily heirs, may be increased or diminished by births or deaths during the pendency of the said life estate.”

The trial court also found that the sum offered for the remainder interest in the land was a full and fair price; that the contract terms were fair, equitable and generous; that the actual fair market value of the land is not in excess of $15.00 per acre and the land produces an annual income of $10.00 for the entire tract. The trial court further found that said land was unsuitable for farming, unimproved and inaccessible, and what value it has consists entirely in the fact that it lies along Spring River and might be used for recreational purposes ; that the market value of the land has reached its peak and the remaindermen all live in Oklahoma, far removed from the situs of the land, and have no desire to oversee their interest in the land.

The trial court further found that a public sale of the remainder interest in the land would attract no better price than that offered by the life tenant; that the rights and interests of the ultimate remaindermen were identical with the interests of the parties to this suit, who are now possible remaindermen in esse; and, that the minor appellee in this case is sued individually and also as a representative of the ultimate vested remainder-men; in esse, and in posse.

In addition to the foregoing findings, the court found that the appellants had not shown as a matter of law that said sale was necessarily for the best interests of the minor appellee, but rather for the benefit and convenience of the appellants, and, therefore, denied the relief prayed and dismissed the complaint.

The instant case is before this court for trial de novo. Since the trial court found that all the factual contentions alleged by the appellants were true, the issue is whether the factual situation entitles the appellants to relief. The appellants earnestly submit that the fact that a minor contingent remainderman is involved is not sufficient to prohibit or justify the denial of relief to adult contingent remaindermen seeking the sale of the tract of land for the purpose of reinvestment. It is the opinion of this court that the circumstances found by the trial court to exist were sufficient, as a matter of law, to entitle appellants to have their estate sold. The record reveals that it would be to the best interest of the. parties to have the land sold and the proceeds derived therefrom, invested and preserved for the benefit of the contingent remaindermen, who would be eligible to receive the proceeds upon the death of Samuel J. Walker, Jr.

We think the trial court erred in holding that, as a matter of law, it should deny the relief prayed for in the complaint. This court has held that equity has jurisdiction and power to order or permit the sale of a contingent remainder estate even if one of the remaindermen is a minor. Bedford v. Bedford, 105 Ark. 587, 152 S. W. 129. It will be noted that the minor in the instant case is only a contingent remainderman, his interest is prospective and depends upon his survival of his mother, who in turn must pre-decease her father, Samuel J. Walker, Jr. The Bedford case, supra, has been cited with approval in the following cases: Hardy v. Hilton, 211 Ark. 991, 204 S. W. 2d 163; Wing v. Wing, 212 Ark. 960, 208 S. W. 2d 776; and Wigal v. Hensley, 214 Ark. 409, 216 S. W. 2d 792.

The case is reversed and remanded with directions to approve the sale of the land. The Commissioner of the Court will be directed to execute and deliver a deed conveying the land involved to David V. Johnson, conditioned upon his payment of the sum of $1,600. The trial court is directed to appoint a trustee to invest the $1,600 in securities, such investment conditioned upon the approval of the court, and to hold all of said funds and increase thereof, until the death of Samuel J. Walker, Jr. Upon Samuel J. Walker, Jr.’s death the funds will then be distributed, under an order of the court, to the parties entitled thereto. The trustee will be required to give a bond, to also be approved by the court, in an amount sufficient to cover the amount of funds involved. The trustee will be directed to file an annual report with the court, and such other reports as the court may direct.

Reversed and remanded.


author: J. Seaborn Holt, Associate Justice. George Rose Smith, J.,

text:
    Grayson v. Arrington.
    5-817
    286 S. W. 2d 501
    Opinion delivered February 6, 1956.

      Wade Kitchens and W. H. Kitchens, Jr., for appellant.

      Warner, Warner & Rag on, for appellee.
   J. Seaborn Holt, Associate Justice.

This is a suit by appellee, Arrington, to quiet his title to the oil, gas and other minerals in and under the of NW14 of NE% of Sec. 19, Tp. 19 S, R 18 W, Columbia County and to remove cloud on his title created by Sheriff’s deed made pursuant to an execution sale to T. S. Gray-son, now deceased, and who was survived by appellants. Appellee deraigned title from the State by virtue of a tax correction deed of August 19, 1946, duly recorded, and by a mineral deed dated September 7, 1946, recorded, and made by "W. C. Taylor and wife to appellee. (Taylor had previously owned both surface and minerals but had conveyed the surface, which eventually went to T. S. Grayson, and retained all minerals.)

October 30, 1945, the State conveyed by tax deed to appellee the minerals in the 20 acres here involved, but erroneously described it to be in Range 19 when it should have been Range 18. The. State did not own any interest in Range 19, but did own the royalty in the 20 acres in Range 18, which had forfeited for the 1941 taxes. In 1946 [exact date not shown] the State filed a confirmation suit to confirm its title to delinquent lands and mineral rights described therein [under Act 119, 1935, §§ 84-1315 — 84-1332, Ark. Stats. 1947], Case 6439, and included the oil, gas and minerals in the W% N¥]4 NE14, Sec. 19, Tp. 19 S, R 19 W.

August 22, 1946, Grayson and Foster, who claimed to be the owners of the surface and mineral rights in said 20 acre tract in Range 19, intervened naming Arrington and his wife as cross-defendants.

September 23, 1946, on the first day of the next term of Court, Arrington and wife appeared by their attorney Ezra Garner and filed a disclaimer as to any right, title or interest in the property claimed by Gray-son and Foster in Range 19. On the same day a decree was entered finding that Grayson and Foster owned the oil, gas and minerals in the 20 acres described as W% NW% NE%, Sec. 19, Tp. 19 S, R 19 W, and that on October 30, 1945, Arrington had obtained a deed from the State Land Commissioner based on a purported sale of part of said lands in Bange 19, for taxes of 1941, that said deed was void for the reason that all taxes had been paid in Bange 19 and had not forfeited; that the complaint filed by the State in so far as it affected said land in Bange 19 should be dismissed and it was decreed that said tax deed be cancelled and the title to the oil, gas and minerals be quieted in Grayson and Foster. The court then ordered that Grayson and Foster recover from Arrington all costs expended by them. It appears that Arrington, appellee, was without knowledge of this decree.

Execution was issued by appellants on the decree for costs, levy was made on the mineral rights of Arrington in the 20 acre tract located in Bange 18 for the purpose of satisfying the judgment and the property was sold by the Sheriff to the said Grayson for $36 and deed executed to him. From the time appellee first obtained title to the 20 acres in Bange 18, up to and including 1953, he paid all taxes charged thereon. On a trial of the present suit the trial court found that the judgment against Arrington in favor of Grayson and Foster in the confirmation suit for costs was void and without effect; that the Sheriff’s deed to Grayson for minerals in the 20 acre tract in Bange 18 constituted a cloud on Arrington’s title; decreed that the deed be can-celled and title quieted in Arrington. For reversal appellants list these three points: “First, that the judgment for costs in the confirmation suit was not void; second, that the present suit constitutes a collateral attack on the confirmation decree of September 23, 1946; and third, that the judgment for costs in the confirmation suit was within the discretion of the chancellor.”

Material facts appear not to be in dispute. After a careful review of the entire record we have concluded that the findings of the Chancellor were not against the preponderance of the evidence and, therefore, that the decree must be affirmed.

The confirmation suit was instituted pursuant to the provisions of Act 119 of 1935 as amended, [§§ 84-1315— 84-1332 inch, Ark. Stats. 1947] and was based thereon. Grayson and Foster intervened in that suit as provided in § 84-1322. Section 84-1327 above provides: “Court costs and the publication fees for the notice of such confirmation suit shall hereafter be paid from the amounts received by the State for the confirmation of title of all lands certified to the State for non-payment of taxes.”

Section 84-1329 provides: “All costs and fees due and payable hereunder may be paid when proof is made that the services for which the payment is made have been fully performed.”

Section 84-1330 provides: “The State Land Commissioner shall hereafter, upon proper application therefor, refund the confirmation fees paid by any person, firm, corporation, association or trustee where the title to state lands have failed.”

Since the above confirmation statute provides the specific method for the payment of costs in all confirmation suits in which the State seeks to establish its title, the trial court was without authority or power to disregard the statute and adjudge the costs on the intervention against appellee and that part of the judgment, assessing the costs against appellee, was therefore void because it was beyond the power of the court to make. Section 84-1327 above, as indicated, expressly provides that all court costs incurred in such confirmation proceedings shall be paid from the amounts received by the State for the confirmation of title of all lands certified to the State for non-payment of taxes, and directed the Land Commissioner to refund costs paid by any person where the State’s title has failed.

The general statute, in effect, allowing costs to be assessed by the trial court in the exercising of its sound discretion, § 27-2308, Ark. Stats. 1947, relied upon strongly by appellant, has no application here where the court is clearly exercising special statutory power and the measure of the court’s authority is the statute itself. Since the statute clearly provides the method for paying costs in confirmation suits, the court was without authority to disregard the statute and adjudge costs on the intervention against appellee. The rule of the law appears to be well settled that costs are a creature of the statute and can only be taxed by statutory authority: “We have often held that the allowance of costs is purely statutory, since at common law neither party is entitled to recover his costs.” Arkansas State Game & Fish Commission v. Kizer, et al., 222 Ark. 673, 262 S. W. 2d 265, 38 A. L. R. 2d 1372.

“A judgment is void when the court proceeds without authority and in a manner forbidden by law with respect to the matter being adjudicated, although it may have jurisdiction of the parties and of the subject matter,” Soper v. Foster, 244 Ky. 658, 51 S. W. 2d 929.

“Where the court, as here, is exercising special statutory powers, the measure of its authority is the statute itself; and a judgment or order in excess of the power thereby conferred is null and void. In such a case even though the court may have jurisdiction of the general subject matter and of the parties, an adjudication with reference thereto which is not within the powers granted to it is coram non judice,” Aetna Cas. & S. Co. v. Bd. of Suprvs., 160 Va. 11, 168 S. E. 617, 626.

It is true, as appellant asserts, that Grayson and Foster intervened in the confirmation suit but this intervention and cross-complaint was not an independent action but was ancillary to the State’s confirmation suit. “Intervention is not an independent proceeding, but an ancillary and. supplemental one which, in the nature of things; unless otherwise provided for by legislation, must be in subordination to the main proceeding, and it may be laid down as a general rule that an intervener is limited to the field of litigation open to the original parties. . . . ” 39 Am. Jur., § 79, p. 950.

Here Grayson and Foster intervened and cross-complained [§ 84-1322 above] and claimed to own the minerals in the tract of land in Range 19, in which they made Arrington and wife cross-defendants. This intervention and cross-complaint was ancillary to the confirmation suit and was in no sense a new action. It is true that the present suit constitutes a collateral attack, however, since we hold that the decree for costs in the confirmation suit, and the Sheriff’s deed made pursuant to the execution sale, were void, the court lacked authority and the power to make the decree and was subject to collateral attack. Lambert v. Reeves, 194 Ark. 1109, 110 S. W. 2d 503: “It is furthermore contended that this is a collateral attack upon the decree of confirmation. Even so, if the confirmation decree is void, in so far as it attempts to confirm a tax sale that is void for the defect above mentioned, then it is open to collateral attack, as a void judgment may be attacked collaterally.”

The decree is affirmed.

Justice McFaddin not participating.

Justices Millwee and Smith dissent.

George Rose Smith, J.,

dissenting. This is an instance of a hard case making bad law. Grayson acquired title to Arrington’s property under a writ of execution issued upon a relatively small judgment for costs. It is natural enough to sympathize with Arrington, even though he was at fault in not keeping himself informed about the progress of litigation to which he was a party. But that sympathy ought not to be carried to the extent of holding that the solemn judgment of a court of superior jurisdiction is a mere nullity, to be disregarded on collateral attack.

It is true, of course, that the legislature could have provided that the chancery court should be wholly without power to render a judgment for costs in a tax conformation suit. But in my opinion that result should depend upon far more emphatic language than that used in the statute upon which today’s decision rests.

The reason for the enactment of this statute is easily understood. When a state agency is directed to institute a suit some provision is ordinarily made for the payment of the court costs that must necessarily be incurred. In some instances the statute directs that the State shall not be required to pay costs as a condition to bringing suit; in other instances the legislature designates a fund from which the costs may be paid. The latter procedure has been followed in statutes directing the institution of proceedings to confirm the State’s title to tax-forfeited land. It was provided by Act 119 of 1935, § 10, that the court costs should be paid from amounts received for the redemption or sale of such forfeited property. The present statute, enacted in 1943, authorizes the payment of court costs from amounts received by the State for the confirmation of title to lands certified for nonpayment of taxes. Ark. Stats. 1947, § 84-1327. As far as I can see, the purpose of the statute is to point out the fund from which the costs may be paid. There is nothing to indicate that the legislature meant to divest the chancery court of its routine authority to tax the costs according to the merits of the case. It may be true that, in view of the statute, the court committed an error that might have been corrected upon appeal. But I am altogether unwilling to say that the statute was intended to have the drastic effect of rendering the court’s decree a mere nullity.


author: Ed. F. McFaddin, Associate Justice.

text:
    Eddington v. State.
    4819
    286 S. W. 2d 473
    Opinion delivered February 6, 1956.

      C. M. Martin, for appellant.

      Tom Gentry, Attorney General, and Thorp Thomas, Asst. Atty. General, for appellee.
   Ed. F. McFaddin, Associate Justice.

On an information charging him with first degree murder for the homicide of Edgar Thrower, the Jury convicted the appellant, Nathaniel Eddington, of second degree murder. His appeal brings before us the fifteen assignments contained in his motion for new trial.

I. Sufficiency of the Evidence. According to the appellant’s witnesses, he was entirely without fault or guilt of any kind and was acting in his own necessary self defense and also in defense of his kinsman, Buddy Smith. But the long established rule governing appeals in criminal cases is, that this Court views the evidence in the light most favorable to sustain the Jury verdict. Dowell v. State, 191 Ark. 311, 86 S. W. 2d 23; Slinkard v. State, 193 Ark. 765, 103 S. W. 2d 50; Higgins v. State, 204 Ark. 233, 161 S. W. 2d 400; and Lamb v. State, 218 Ark. 602, 238 S. W. 2d 99. Whether to believe the State’s witnesses or the defendant’s witnesses was a decision for the Jury. King v. State, 194 Ark. 157, 106 S. W. 2d 582. The Jury elected to believe the State’s witnesses; and our duty on appeal is to see whether the evidence, so viewed in the light most favorable to the 'State, is sufficient to sustain the conviction.

According to the State’s witnesses, a party of four people — being (1) Napoleon Davis, (2) his wife, Yersie Mae Davis, (3) Buddy Smith, and (4) the appellant— drove to the Busy Bee Cafe near Bearden about midnight of February 19, 1954, and found several other people in the cafe, where food and beer were being legally served. P. L. Wright and wife operated the cafe. Shortly after the appellant’s party arrived at the cafe, a dispute arose to which appellant was not a party: Edgar Thrower, Timothy Thrower and O. D. Juniel “ganged up” on Napoleon Davis, causing him to hold his three adversaries at pistol point while he and his wife retreated to the cafe entrance and then to their car nearby. Appellant also left the cafe and entered the Davis car. Versie Mae Davis was driving, and Napoleon Davis and appellant were in the seat beside her. When the car stopped less than a block away from the cafe, appellant seized Napoleon Davis’ pistol, jumped from the car, and raced back toward the Busy Bee Cafe. He saw Edgar Thrower and Buddy Smith standing about four feet apart. Appellant, from a distance of about fifty feet, yelled: “Look out, Buddy,” and then shot Edgar Thrower in the chest, causing instant death. The testimony of P. L. Wright and Troy Lee Thompson (each claiming to have been an eye witness) was to the effect just stated.

Appellant admitted that he took the pistol from Napoleon Davis and used it in shooting Edgar Thrower. The Jury had the right to conclude that the grabbing of the pistol, the running back toward Edgar Thrower, the warning to Buddy Smith, and the shooting of Thrower, all showed sufficient malice and intention to constitute even a greater offense than second degree murder. Certainly the evidence is legally sufficient to support a conviction for second degree murder. See § 41-2206, Ark. Stats.

II. Instruction. The Court fully instructed the Jury on all applicable phases of homicide, self defense, burden of proof, presumption and all other appropriate matters; and the only assignment in the motion for new trial, relating to instructions, is the appellant’s claim that the Court should have given his requested Instruction No. 2, which is a long instruction of two printed pages. There are several reasons why this requested instruction should not have been given, but it is sufficient to mention only one such reason: and that is, because the instruction was incorrect in stating the law as to self defense. The instruction concluded with this language :

“ . . . and if, under all the circumstances, he, at the moment, believed, and had reasonable grounds to believe, that it was necessary to save his own life, or to protect himself from great bodily harm, he had the right to kill Edgar Thrower. He not only had the right to kill him but under the law it was his legal duty to slay him, and you will by your verdict acquit him; and if you have a reasonable doubt upon this proposition you will give him the benefit of the doubt and acquit him.” (Italics our own.)

The italicized language does not correctly state the law regarding the claim of self defense. See § 41-2236, Ark. Stats. There is no “duty to slay” involved in the plea of self defense. It is only an excuse for homicide and not a duty to commit it: it is a defense and not a retribution. See generally: Stoddard v. State, 169 Ark. 594, 276 S. W. 358; and Graves v. State, 155 Ark. 30, 243 S. W. 855. So, without mentioning other vices in the instruction, we conclude that it was fatally defective in the use of the italicized language. The burden is on the party asking an instruction to ask one that is a correct statement of the law; and a Trial Court commits no error in refusing a requested instruction which is erroneous. See Cellars v. State, 214 Ark. 326, 216 S. W. 2d 47; Chambers v. State, 168 Ark. 248, 270 S. W. 528; and other cases collected in West’s Arkansas Digest, “Criminal Law,” 830.

III. Absence of Weapons on the Body of Deceased. The Trial Court permitted the coroner to testify that he searched the body of the deceased and found no weapons. The appellant objected to this evidence because the coroner did not search the body of the deceased until about an hour after the killing; but it was shown that the body had not been moved and the time lapse between the killing and the arrival of the coroner was fully explained to the Jury. Under these circumstances it was for the Jury to decide the weight and credibility to give to the testimony of the coroner. Furthermore, two other witnesses — Granville Warrick and George Redding — -testified, without objection, that they made a search and found no weapons on the body of the deceased or near his body and that they were there and subsequently assisted the coroner wher he made his search. The testimony of these two witnesses was admitted without objection ; and would tend to render harmless any possible error that might have been committed in the admission of the testimony of the coroner. See Maxey v. State, 76 Ark. 276, 88 S. W. 1009; and LeGrand v. State, 88 Ark. 135, 113 S. W. 1028.

IY. Sale of Bootleg Whiskey. In several assignments in the motion for new trial, appellant claims that the Court committed error in refusing appellant the right to interrogate witnesses as to whether P. L. Wright was selling bootleg whiskey at the Busy Bee Cafe. It was shown that the sale of beer was legal at the cafe hut, of course, the sale of bootleg whiskey would have been illegal. The defense attorney asked P. L. Wright on cross-examination :

“Q. So you say you had not just sold those three Negroes bootleg whiskey back in your kitchen?

“A. No, sir.”

Again, the defense attorney asked P. L. Wright:

“Q. . . . and didn’t Napoleon Davis and some other Negroes come to your house and buy some whiskey?

“A. No, sir.”

After interrogating P. L. Wright and receiving these answers, the defense counsel sought to impeach Wright on this collateral matter by asking other witnesses if they had bought bootleg whiskey at Wright’s restaurant or home. Of course, the question of whether Wright had sold bootleg whiskey was entirely collateral to the issue of the homicide of Edgar Thrower; and when defense counsel had asked P. L. Wright the questions about the sale of bootleg whiskey and received the answers as quoted, then the defense counsel could not impeach Wright on this collateral matter which defense counsel had injected into the case. In Hawkins v. State, 223 Ark. 519, 267 S. W. 2d 1, in discussing impeaching witnesses on collateral matters, we said :

“While a Avitness may be questioned as to certain specific acts for impeachment purposes, however, if such matters are collateral to the issue, as here, such witness may not subsequently be contradicted by a witness of the party (appellant here) putting the question. The examiner is bound by the answer given. McAlister v. State, 99 Ark. 604, 139 S. W. 684, and Bevis v. State, 209 Ark. 624, 192 S. W. 2d 113.”

V. Appellant’s Attempt to Impeach the Testimony of Corene Green. Troy Lee Thompson testified that he was an eye witness to the killing of Edgar Thrower. In an effort to impeach Thompson’s testimony — -that he was an eye witness — his mother, Corene Green, was called by appellant; and it was thought that she would testify that her son, Troy Lee Thompson, was asleep at her home at the time of the killing. But when Corene Green’s testimony was not as expected on the point, appellant sought to impeach her testimony by offering certain unsworn statements it was claimed she had made to appellant’s attorney. The Trial Court refused to allow such statements, after first finding and declaring that Corene Green was not a hostile witness. The Court’s ruling is assigned as error; but we find no harmful error to have been committed. An impeaching witness may be impeached in most cases (58 Am. Jur. 370); but appellant offered no other witness to show that Troy Lee Thompson was asleep at his mother’s home at the time of the killing of Edgar Thrower. If appellant’s attorney had been allowed to testify as to the unsworn statements of Coreen Green, such testimony of the attorney would only have impeached Corene Green but would not have been any substantive evidence as to the whereabouts of Troy Lee Thompson. Our holding in Comer v. State, 222 Ark. 156, 257 S. W. 2d 564, is decisive on this point. We there said:

“We have often held that the prior inconsistent statements of a witness are admissible for impeachment but not as substantive evidence, of their truth. Minor v. State, 162 Ark. 136, 258 S. W. 121; Sisson v. State, 168 Ark. 783, 272 S. W. 674.”

In an Annotation in 82 American State Reports, 62, the holdings are summarized in this language:

“If a party cannot possibly help his case by impeaching his own witness, such impeachment will not be permitted: Largin v. State, 37 Tex. Cr. Rep. 574, 40 S. W. 280. The rule is, therefore, firmly established that a party can discredit his own witness by proof of his contradictory statements, only where such witness has testified to facts which are damaging to the party, and he has been injured by the testimony: Bailey v. State, 37 Tex. Cr. Rep. 579, 40 S. W. 280; People v. Jacobs, 49 Cal. 384; Smith v. Briscoe, 65 Md. 561, 5 Atl. 334; Erwin v. State, 32 Tex. Cr. Rep. 519, 24 S. W. 904; Chism v. State, 70 Miss. 742, 12 So. 852; People v. Mitchell, 94 Cal. 550, 29 Pac. 1106; McDaniel v. State, 53 Ga. 253. . . .

“Evidence offered solely to impeach a party’s own witness and which has no other tendency is not admissible: Nathan v. Sands, 52 Neb. 660, 72 N. W. 1030; Harlan v. Green, 31 Misc. Rep. 261; 64 N. Y. Supp. 79.”

Thus, no amount of evidence of contrary unsworn statements by Corene Green could have helped appellant’s case or provided substantive testimony on the question of whether Troy Lee Thompson was asleep at his mother’s home at the time Edgar Thrower was killed by appellant; and the trial court’s ruling on the point was not prejudicial to appellant.

YI. Other Assignments. We have carefully studied all the other assignments in the motion for new trial and find none of them to possess merit.

Affirmed.

       On what is “collateral,” there is a clear statement in an Annotation in 82 American State Reports, 51: “Since collateral matters cannot be made the basis of impeaching a witness by contradicting him, the question naturally arises, What are collateral matters? What test can be applied to determine whether a question is collateral to the issues or not? The very generally approved test may be found stated in the syllabus to Saunders v. City etc. R. R. Co., 99 Tenn. 130, 41 S. W. 1031, as follows: ‘Would the cross-examining party be entitled to prove the fact as a part of, and as tending to establish, his case? If he would be allowed to do so, the matter is not collateral; but, if he would not be allowed to do so, it is collateral. Collateral matters, in this sense, are such as afford no reasonable inference as to the principal matter in dispute.’ A frequently quoted test is cited in Combs v. Winchester, 39 N. H. 13, 75 Am. Dec. 203: ‘The test whether the matter is collateral or not is this: If the answer of the witness is a matter which you would be allowed on your part to prove in evidence — if it had such a connection with the issue that you would be allowed to give it in evidence — then it is a matter on which you may contradict him.’ ”


author: Minor W. Millwee, Associate Justice.

text:
    Staples v. Bishop, Sheriff Union County.
    5-838
    286 S. W. 2d 505
    Opinion delivered February 6, 1956.

      L. B. Smead, Walter L. Brown and Robert C. Compton, for appellant.

      Tom Gentry, Attorney General, and Bruce Bennett, for appellee.
   Minor W. Millwee, Associate Justice.

This suit involves the constitutionality of Act 145 of 1955.

Appellant is engaged in the cattle business in Union County, Arkansas, where he originally brought suit in chancery court to restrain the sheriff and treasurer of Union County from enforcing Act 145 of 1955. The Union Chancery Court found that the State Police were necessary parties to the suit which was refiled in Pulaski Chancery Court and Herman E. Lindsey, State Police Director, was made a party defendant.

The complaint asserted unconstitutionality of Act 145 on two grounds, the first being that it is an amendment of Initiated Act No. 1 of 1950 and did not receive a two-thirds vote of all members elected to each house of the General Assembly as required by Amendment No. 7 of the Arkansas Constitution, and the second that it compels citizens to incriminate themselves in violation of Art. 2, § 8 of the Constitution. Appellees demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. This appeal is from a decree sustaining the demurrer and dismissing the complaint when appellant refused to plead further.

The primary question is whether Act 145 of 1955 amended Initiated Act No. 1 of 1950 within the meaning of Amendment No. 7 of the Constitution (Ark. Stats., Yol. 1, p. 206) which provides that no measure approved by a vote of the people shall be “amended or repealed” by the General Assembly except by vote of two-thirds of all members elected to each house. Initiated Act No. 1 of 1950 (Ark. Stats., § 41-430, et seq.) made it a misdemeanor for the owners of cattle, horses, mules, hogs, sheep or goats to allow them to run at large on any public highway in the state, and provides that any qualified officer shall have authority to make arrests for violations of the act.

Act 145 was passed by the Legislature in 1955 by less than a two-thirds majority vote of both houses. The act makes it the duty of the sheriffs and members of the State Police to restrain and impound any animals found running at large on any public highway in the state. It also makes it the duty of county courts to provide enclosures for impounding said animals, which may be sold by the sheriff at public sale with the right of the owner to reclaim within 30 days of the first publication of notice of sale upon payment of the costs of taking up, feeding and care of such animals. Any net sale proceeds remaining at the end of each year in the fund to be kept by the sheriff in connection with the impounding and sale of animals must be deposited with the County Treasurer for the benefit of the County Road Fund.

In view of § 1 of Act 145 which states that the purpose of the act is to provide for more effective enforcement of the prohibition against animals being allowed to run at large in violation of Initiated Act No. 1 of 1950, appellant insists that Act 145 amends Initiated Act No. 1 by providing for the taking up and impounding of animals found running at large on the highways in addition to the criminal penalty imposed upon violators by the initiated act. We do not agree that Act 145 “amended” Initiated Act No. 1 within the meaning of Amendment No. 7 of the Constitution.

As applied to statutes, an amendment has generally been defined by the courts as a legislative act designed to change some prior and existing law by adding to, or taking from it some particular provision. State ex rel. Nagle v. Leader Co., 97 Mont. 586, 37 P. 2d 561; Assets Reconst. Corp. v. Munson, 81 Cal. App. 2d 363, 184 P. 2d 11; 50 Am. Jur., Statutes, § 3; 82 C. J. S., Statutes, § 243. In Gregory v. Cockrell, 179 Ark. 719, 18 S. W. 2d 362, this court held that an amendment of a statute involves some change or alteration in an existing statute which is direct and not consequential. In that case we also joined many other courts in approving the following definition of “Amendment in legislation” found in Bouvier’s Law Dictionary, 3rd ed., p. 187: “An alteration or change of something proposed in a bill or established as law.” Some courts have distinguished an “amendment” from a “supplemental act” by defining the latter as that which supplies a deficiency, adds to, extends or completes that which is already in existence without changing or modifying the original. Lost Creek School Township, Vigo County v. York, 215 Ind. 636, 21 N. E. 2d 58, 127 A. L. R. 1287.

Act 145 of 1955 does not in any manner “alter or change” Initiated Act No. 1 of 1950. There is nothing-in Amendment No. 7 which prohibits legislation upon the same subject matter by a majority vote of less than two-thirds of the General Assembly so long as it does not amend or repeal the act or law approved by the electors. The Legislature has the power to provide for the impounding and sale of livestock found running at large in violation of law independently of Initiated Act No. 1 of 1950. Howell v. Daughet, 148 Ark. 450, 230 S. W. 559, 18 A. L. R. 63. The fact that Act 145 had for its purpose the more effective enforcement of the initiated act is immaterial unless it changed or altered it in some way. A comparison of the two acts shows that each is complete within itself, and that Initiated Act No. 1 still stands intact without alteration or change by Act 145. While the latter act may be supplemental to the former, it is not amendatory within the meaning of the Constitution.

Nor do we agree with appellant’s contention that Act 145 compels the owner to be a witness against himself in violation of Art. 2, § 8 of the Constitution. While the act permits an owner to reclaim his impounded stock, it does not compel him to do so, nor does it necessarily follow that he thereby admits that he has violated Initiated Act No. 1 of 1950. One is not guilty of allowing his stock to run at large unless he knowingly permits them to do so. De Queen v. Fenton, 100 Ark. 504, 140 S. W. 716. Even though an owner reclaims his stock, he is still free to make any defense or contention he may have, or desire, with regard to whether he allowed the stock to run at large.

The able trial judge correctly held Act 145 valid and constitutional, and the decree is affirmed.


author: George Rose Smith, J.

text:
    Spikes v. Hibbard.
    5-839
    286 S. W. 2d 477
    Opinion delivered February 6, 1956.

      R. C. Waldron, Jack Holt and John F. Park, for appellant.

      James A. Robb, for appellee.
   George Rose Smith, J.

This suit for the partition of eighty acres of land was originally filed by four of the appellants. The complaint alleged that the plaintiffs owned an undivided five-eighths interest in the land and that the defendants owned the other three-eighths. By answer the defendants denied the plaintiffs’ assertion of co-ownership, interposed a plea of adverse possession, and asked that the defendants ’ own title be quieted.

A substantial amount of testimony was taken, which seems to have indicated that other members of the plaintiffs ’ family have an interest in the land. About thirteen months after the suit was filed some 177 persons intervened and asked to be made parties plaintiff. Later on the original plaintiffs, by an amendment to their complaint, alleged that the five-eighths interest originally claimed by them is owned by specified branches of the Spikes family and the Stubblefield family. At this point the chancellor sustained a demurrer to the amended complaint, primarily upon the ground that equity is without jurisdiction to partition land that is in the possession of the defendants. The court also remarked that all necessary parties have not yet been brought into the case. Upon sustaining the demurrer the court dismissed the case.

It is our view that the court should have retained jurisdiction of the suit. Even if the complaint failed to state a ground for equitable relief the appellees supplied the defect by asking that their title be quieted. It is a familiar rule that one who has invoked the assistance of equity-cannot later object to that jurisdiction unless the subject matter of tbe litigation is wholly beyond equitable cognizance. State use Arkansas County v. Pollard, 171 Ark. 607, 286 S. W. 811. Nor, as the appellees now contend, could the point be raised upon the chancellor’s own motion. An adequate basis for chancery jurisdiction having been pleaded, the case should have proceeded to trial in that court. As we said in Marks v. F. G. Barton Cotton Co., 170 Ark. 637, 280 S. W. 674: “Their cross-bill was founded on matters clearly cognizable in equity, and this supplied any defect of jurisdiction. The original complaint and cross-bill were but one cause of action, and imposed upon the court the duty of granting relief to the party entitled to it.”

It is argued by the appellees that the plaintiffs’ amendment to their complaint stated a new cause of action, so that by demurring thereto the defendants raised the issue of jurisdiction at the first opportunity. The amendment did not assert a new cause of action; to the contrary, it adhered to the original prayer for a partition of the land. A pleading which merely brings in a new party having an interest in the same cause of action does not amount to the filing of a different suit. H. B. Deal & Co. v. Bolding, 225 Ark. 579, 283 S. W. 2d 855.

With respect to the suggested defect of parties it cannot be said with certainty at this stage, of the litigation that the plaintiffs have failed to join all persons having an interest in the land. The plaintiffs’ pleadings, which must be construed liberally on demurrer, sufficiently allege the existence of a tenancy in common and adequately state a cause of action for partition. The amended complaint is not as clear as it might be in describing the exact interests claimed by the various plaintiffs and intervenors, but such a want of clarity should be reached by a motion to make more definite rather than by a demurrer.

Reversed.

Holt, J., not participating.


author: Paul Ward, Associate Justice.

text:
    Garner v. Scott.
    5-841
    286 S. W. 2d 481
    Opinion delivered February 6, 1956.

      Marshall N. Carlisle and Tom Gentry, for appellant.

      R. Julian Glover, for appellee.
   Paul Ward, Associate Justice.

Appellants, Thomas Garner and Gilbert Thomas, brought this action in the circuit court, asking for damages against appellees, based on the alleged negligence of Cecil Scott in driving a concrete mixer, belonging to C. J. Horner & Co., into the automobile in which they were riding. From a jury verdict in favor of appellees, comes this appeal.

For a reversal appellants make three assignments of error, viz.: (a) Inadmissible evidence; (b) Eefusal to allow examination of certain witnesses, and; (c) Giving Instruction No. 7. We find it necessary to reverse the cause on the last assignment, and will therefore mention the first two only briefly.

In order to evaluate Instruction No. 7, it is necessary to set out a summary of the issues and the testimony.

The complaint alleges: Garner and Thomas, in a Chevrolet sedan, owned and driven by Garner, were driving north on Third Street in the City of Hot Springs when Scott “negligently, willfully, wantonly, and with malicious intent drove” the concrete mixer, suddenly and without warning, into the left side of the automobile, forcing it into the curb, and damaging it to the extent of $350 and injuring Gilbert Thomas in the amount of $2,500. The prayer was for the above amounts and for punitive damages for each of them in the amount of $5,000.

In addition to a general denial, appellees answered: (a) Appellants were guilty of contributory negligence; (b) Appellants were in pursuit of the driver [Scott] of the cement mixer with intent to do him bodily harm and to do physical damage to the cement mixer, and; (c) Scott was compelled by reason of the negligence of appellants either to collide with an approaching vehicle or to collide with the Chevrolet car.

By far the major portion of the testimony in this case concerned a state of ill feeling that was supposed to exist between appellants and the appellees as the result of a strike at the place of business of appellee C. J. Horner & Co. The first contention of appellants is that much of this testimony was inadmissible. Without at this time passing on the merit of that contention it suffices to say that much of it was first introduced by appellants. Appellants’ second contention is that they should have been afforded an opportunity to examine one of appellees’ witnesses to ascertain the source of his contemplated testimony. Regardless of whether appellants were denied any rights in all probability this question will not arise again.

This case seems to have been tried largely upon a theory somewhat novel to any reported decisions of this court. Appellees undertook to show that appellants were pursuing them with intent to do harm to Scott and damage to the cement mixer, and that in order to protect himself and the cement mixer Scott' drove the mixer into the automobile in which appellants were riding. There is not a great deal of material conflict in the testimony introduced by both sides relative to what happened shortly before the collision. Earlier in the day Scott had driven the cement mixer, which loaded weighed approximately 37,000 pounds, to different jobs in Hot Springs to deliver concrete. On these occasions he had noticed appellants following him in the automobile, and had noticed that they would park their automobile nearby while he was'unloading. Scott’s testimony was that they were apparently trying to force him to stop the truck in which he was riding and he thought they were bent on doing him or the truck harm. It was developed that appellants belonged to a union and that perhaps they were in sympathy with the strikers, but that Scott had refused to walk out with the other strikers. Just before the incident complained of Scott stated that after he entered Third Street going north appellants drove in front of him and he thought they were trying to block his progress, and that he drove at a somewhat excessive rate of speed in order to avoid an altercation. Scott testified that as long as he was in the cement mixer he was not afraid. Scott testified that immediately before the collision he drove up behind appellants’ automobile and that as he was about to pass there was another car coming from the opposite direction and that he was forced either to drop back in the line of traffic behind appellants’ automobile or drive his truck into the automobile. Scott does not deny that he did strike the back end of appellants’ automobile and caused damage to it and injury to Gilbert Thomas.

There is no complaint made about the instructions relative to contributory negligence or any other feature of the case except the one instruction referred to above.

Under the above state of facts the trial court gave, over the general and specific objections of appellants, Instruction No. 7 which reads as follows:

“If you find from a preponderance of the evidence in this case, that plaintiffs were on a joint mission to do bodily harm to Cecil Scott or to damage the truck that he was driving, by forcing him to the curb or by forcing him to stop so that bodily injury might he inflicted upon him, and that the defendant, Cecil Scott, honestly and without fault on his part, believed that plaintiffs were about to inflict upon him a bodily injury or damage the truck, or that it became necessary, and it appeared to the defendant Scott at the time, acting as a reasonable person, that it was necessary to defend himself, and he did so by driving his truck into the car occupied by plaintiffs in order to prevent bodily harm to himself or damage to the truck, then you are instructed that he was justified in doing so, and you will find the issues in favor of the defendants.” (Emphasis supplied.)

We have given careful consideration to the wording of the above instruction and have concluded that the court should not have included that portion which is italicized above but should have inserted other suitable language similar to that hereafter suggested.

We find nothing wrong with the first portion of the instruction down to the part italicized, hut as it now stands it amounts to the court telling the jury that Scott had a right to do exactly what he did. In other words Instruction No. 7 practically made Scott the sole judge of what to do to protect himself and did not, as it should have, require him to use only such means as were necessary under the circumstances to prevent harm, or, acting as a reasonably prudent person, to have tried to avoid harm to himself in some other way. For instance the jury might have thought that he could have pulled in behind appellants’ automobile as the approaching vehicle passed and then continue on his way to a place of safety, particularly since he had stated that he was not afraid as long as he was in the cement mixer.

As stated before this case presents a somewhat novel situation hut we find expressions in other decisions that confirm our conclusion that Instruction No. 7 was prejudicial.

The question of how much force is permissible in resisting an unlawful arrest was considered in People v. Cherry, 307 N. Y. 308, 125 N. Y. S. 2d 654, 126 N. Y. S. 2d 603, 121 N. E. 2d 238, and the court at page 240 had this to say:

‘ ‘ If force is necessary to prevent an unlawful arrest, then force may be employed, the one limitation on its exercise being that the victim may not pursue his counterattack merely for the sake of revenge or the infliction of needless injury.”

In Fraguglia v. Sola, 17 Cal. App. 2d 738, 62 Pac. 2d 783, it was said: “Force that one may use in self defense is that which reasonably appears necessary in view of all circumstances of the case, to prevent impending damages.” At page 786 the court said the jury could find for the plaintiff even though the plaintiff was at fault “if you further find that the resulting assault and battery on the plaintiff by defendant was accompanied by greater force than was reasonably necessary for the purpose of self defense. ’ ’ It cites with approval 4 Am. Jur. 152 which says: “Generally stated the force that one may use in self defense is that which reasonably appears necessary in view of all of the circumstances of the case to prevent the impending injury.”

Randall v. Ridgely, (La. App.) 185 So. 632. This was a civil action for damages in an assault and battery case. At page 633 the court said: “Under no theory can it be said that defendant was warranted in using any greater force than was necessary in ejecting plaintiff from the premises.” On the same page it quotes with approval “A person defending himself from an attack becomes liable as an aggressor where the force employed is in excess of that which the law will tolerate in a given case for defensive purposes, and for the use of such excessive force he is liable both civilly and criminally.”

Downey v. Duff, 106 Ark. 4, 152 S. W. 1010, this is a civil case in assault and battery. At top of page 7 the court approved the following instructions:

“ ‘If you find from the evidence that the plaintiff, Duff, made an assault upon the defendant Downey, with a dangerous weapon and that Downey in good faith believed that it was necessary for him to strike Duff in order to prevent Duff from striking him with the weapon (to avoid the infliction of bodily harm upon himself) and that Downey used no more force than was necessary (as the situation appeared to the defendant under the circumstances) then you should find for the defendant.’ ”

“ ‘You are instructed that an assault is an unlawful attempt, coupled with present ability, to commit a violent injury on the person of another, and, if you find from a preponderance of the evidence that at the time defendant struck plaintiff, plaintiff was committing an assault upon him, the defendant was justified in using such force as appeared to him reasonably necessary, acting as a prudent person would under similar circumstances, to resist the assault of plaintiff, and to prevent any renewal of such assault, if such renewal could be reasonably apprehended.’ ”

Bestatement of the Law, under Torts, § 70, at page 147, in this same connection it is said:

“The actor is not privileged to use any means of self defense which is intended or likely to cause a bodily harm or confinement in excess of that which the actor correctly or reasonably believes to be necessary for his protection. ’ ’

At the bottom of page 148 it is stated that: ‘ ‘ The actor must believe that the means which he applies are necessary to prevent the apprehended harm. . . . Not only must the actor so believe, but . . . his belief must be reasonable, that is, the circumstances which are known or should be known to the actor must be such that a reasonable man would so believe. ’ ’ And again at page 149: ‘ ‘ The actor is not privileged to apply a particular force if he knows or should know that the apprehended harm can be prevented by the application of a force less in kind or degree . . . ”

The judgment of the trial court is reversed, and the cause is remanded for further proceedings consistent with this opinion.


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    Murdock Acceptance Corporation v. Speer, Chancellor.
    5-843
    286 S. W. 2d 485
    Opinion delivered February 6, 1956.

      H. D. Dickens, James M. McHaney and Owens, Ehrman é McHaney, for petitioner.

      T. 0. Abbott, for respondent.
   Sam Robinson, Associate Justice.

Murdock Acceptance Corporation has filed in this court a petition for writ of prohibition questioning the jurisdiction of the Union Chancery Court in a case filed in that court by one D. E. Griffin to void for alleged usury a contract for the sale of an automobile. The issue here is whether Murdock waived the jurisdiction of the Union Chancery Court by filing an answer to the complaint without raising the question of jurisdiction and without reserving the jurisdictional question.

On the 5th day of May, 1955, Griffin filed his complaint in the Union Chancery Court. The summons was directed to the Sheriff of Pulaski County and was served on the defendant in Pulaski County by the Pulaski County Sheriff on the 20th day of May, 1955. On the 9th day of June, 1955, the defendant filed in the Union Chancery Court an answer to the complaint. The answer in no way raises as an issue the jurisdiction of the court. About two months later, on August 19, 1955, Murdock filed a motion to quash the service and dismiss the action, alleging that service was had on defendant in Pulaski County, where defendant had its sole place of business and residence; that there had been no service on any agent of the defendant in Union County and that the Union Chancery Court had no jurisdiction to render judgment in the cause. The motion to dismiss was overruled. Murdock then filed in this court its petition for a writ of prohibition.

Ark. Stats., § 27-614, provides: “Where any action embraced in the preceding section is against a single defendant, the plaintiff shall not be entitled to judgment against him on the service of a summons in any other county than that in which the action is brought, unless he resided in that county at the commencement of the action or unless, having appeared therein, he fails to object, before the trial, to its proceeding against him.” Petitioner stoutly contends that under the above statute the cpiestion of jurisdiction of the parties may be raised at any time before the trial and that such issue was raised in this case before the trial. Section 27-614 is certainly susceptible to the construction contended for by petitioner. However, this section of the statutes was originally adopted as Section 97 of the Civil Code which took effect January 1, 1869, and in a long line of cases this court has held that a general appearance will subject the defendant to the court’s jurisdiction even though the suit is filed in the wrong venue. See Leflar on Conflict of Laws, page 141.

In Mercer v. Motor Wheel Corporation, 178 Ark. 383, 10 S. W. 2d 852, this court said: “This court is committed to the doctrine, by a long line of decisions, that taking any substantive step by defendant in an action brought against him in the courts operates as a general appearance, and waives the manner of process or any defects therein. Hawkins v. Taylor, 56 Ark. 45, 19 S. W. 105, 35 A. S. R. 82; Carden v. Bailey, 87 Ark. 230, 112 S. W. 743; Dodson v. Butler, 95 Ark. 617, 130 S. W. 581; German Investment Co. v. Westbrook, 101 Ark. 124, 141 S. W. 510; Linn-McCabe Co. v. Williams, 116 Ark. 307, 172 S. W. 895; Bixley v. Taylor, 122 Ark. 278, 183 S. W. 200.” And the court further said: “According to the Arkansas cases, a defendant against whom a suit has been filed, whether served at all, enters his appearance generally and for all purposes by taking substantive steps therein, such as answering, . . . Certainly no sound distinction can be drawn between a void process and no process at all. If a defendant may waive service entirely by participating in the trial, it logically follows that void service may be waived in the same manner.”

Petitioners cite Sloan v. Peoples Loan and Investment Company, 195 Ark. 1085, 115 S. W. 2d 833, as authority for the proposition that the question of the jurisdiction of the court may be raised at any time before judgment even though there has been a general appearance by the one raising the question. Ark. Stats., § 27-614, on which petitioner relies, was not involved in the Sloan case. That was an action where a non-resident of the county was sued along with a resident of the county. There was a verdict in favor of the local resident and a verdict against the non-resident. Before the judgment was entered, the Peoples Loan and Investment Company — the non-resident — on the strength of Ark. Stats., § 27-615, filed an objection to a judgment being entered against it. Ark. Stats., § 27-615, provides that nonresident defendants may object to a judgment being-entered against them where there had been a verdict for the resident defendant. Hence the Sloan case is not in point with the situation presented here.

By filing a general denial, without reserving the question of jurisdiction, the defendant waived the jurisdiction of the court as to the parties and the petition for prohibition is therefore denied.


author: Per Curiam.

text:
    Rudolph v. Cassidy.
    5-883
    286 S. W. 2d 489
    Opinion delivered February 6, 1956.

      Wade & McAllister, for appellant.

      Dickson & Putman and Bex W. Perkins, for appellee.
   Per Curiam.

Appellee Florence D. Cassidy obtained a $30,000 judgment against appellant Marjory Holt Rudolph in a personal injury case and the cause is here on appeal. Appellant has filed in this court a motion to be permitted to file a supersedeas bond in the sum of $25,000, alleging that she is insolvent and cannot make a $30,000 bond but that she has liability insurance and is able to make a $25,000 bond. The insurance carrier is not a party to the litigation. Since appellant alleges in the motion that she is insolvent it is obvious that a bond for only part of the judgment is for the benefit of one who is not a party to the action. Appellant is not merely asking that she be permitted to file a bond for a part of the judgment — she wants a particular $25,000 superseded —the $25,000 for which the insurance carrier may be liable. Otherwise the motion would be meaningless, as an order of this court merely allowing a supersedeas bond for part of the judgment and leaving appellee at liberty to attempt to collect the other part pending appeal would leave the judgment creditor in position to proceed against the carrier for that part of the judgment not superseded.

Actually, there are only two parties before this court: the appellant Rudolph and the appellee Cassidy. Appellant Rudolph says she should be allowed to make a bond for part of the judgment because she cannot make bond for the judgment in full. The fact that she is insolvent and cannot make a supersedeas bond for the full amount of the judgment is no justification for this court authorizing a bond for a lesser amount, even assuming, but not deciding, that we are permitted to do so by Act 555 of 1953. If the insurance carrier were a party to this suit and seeking to make a bond only for the amount for which it could be held liable under the terms of its policy there might be good grounds for permitting it to do so, but the insurance company is not a party.

Appellant further contends that Ark. Stats., § 27-2125, authorizes the making of a bond for part of the judgment. The statute provides: “The supersedeas may be issued to stay proceedings on a part of a judgment or order, in which case the bond shall be varied so as to secure the party superseded.” This statute has no application in a case where there is a money judgment against one person in favor of another person. If the judgment is for something in addition to money, such as a lien, as in Royal Theatre v. Collins, 102 Ark. 539, 144 S. W. 919, it could be “varied so as to secure the party superseded,” and § 27-2125 would apply. But here, if appellant were permitted to make a supersedeas bond for only part of the money judgment appellee would have no security at all for the balance. Ark. Stats., § 27-2121, provides: “A supersedeas shall not be issued until the appellant shall cause to be executed before the clerk of the court which rendered the judgment or order, or the clerk of the Supreme Court, by one or more sufficient sureties, to be approved by such clerk, a bond to the effect that the appellant shall pay to the appellee all costs and damages that shall be adjudged against the appellant on the appeal, or in the event of the failure of appellant to prosecute said appeal to a final judgment in the Supreme Court, or if said appeal shall for any cause be dismissed, that said sureties shall pay to the appellee all costs and damages and shall perform the judgment of the court appealed from; also that said appeal shall be prosecuted without delay; also, that he will satisfy and perform the judgment or order appealed from in case it should be affirmed, and any judgment or order which the Supreme Court may render, or order to be rendered by the inferior court, not exceeding in amount or value the original judgment or order, . . . ”

The motion by appellant to be permitted to make a supersedeas bond for less than the full amount of judgment is denied.

Seamster, C. J., not participating.