text:
    Thornbrough, Commissioner v. Stewart.
    5-2096
    334 S. W. 2d 699
    Opinion delivered April 18, 1960.

      Luke Arnett, and Lowell D. Gibbons, for appellant.
    No brief filed for appellee.
   Paul Ward, Associate Justice.

Appellee, Earl H. Stewart, was employed by Ben Pearson, Inc. for approximately eleven months in 1956 where he received $1.05 an hour as a nonunion laborer. He was then employed for several months by the International Paper Company at Pine Bluff, where, as a member of a labor union, he performed common labor for $1.50 per hour. Appellee was laid off from work by the Paper Company on June 13, 1958. Appellee then registered for work at the Employment Security Local Office, by which office he was referred to his former employer, Ben Pearson, Inc., where employment was offered to him as a truck driver at $1.05 per hour for the duration of the job.

Appellee refused to accept employment with Ben Pearson, Inc. on the terms above stated. The reason .appellee refused to accept employment was, as he contends, because the rules of tbe labor union to which he belonged subjected him to a fine and possible discharge from the union for accepting a job paying less than the union scale.

The Local Office disqualified appellee pursuant to Section 5 (c) of the Employment Security Act (§ 81-1106 of Ark. Stats.) for failing without good cause to accept “available suitable work when so directed by the Employment Office ’ ’. The Appeal Section and the Board of Review affirmed the disqualification by the Local Office, also holding claimant ineligible pursuant to Section 4 (c) of the Employment Security Act (§ 81-1105 of Ark. Stats.) on the grounds that appellee had not done “those things a reasonable, prudent individual would be expected to do to secure work” and was, therefore, “not available for such work”. The Circuit Court, upon appeal to it, reversed the decision of the Board of Review on the ground that Section 5 (c) (2) (c) of the Employment Security Act (§ 81-1106 (c)(2)(c) of Ark. Stats.) made the work at Ben Pearson, Inc. unsuitable. Apparently the Circuit Court’s decision was based on the belief that to require appellee to accept employment with Ben Pearson, Inc. at wages less than union scales amounted to requiring appellee to resign from his labor union. Prom the above decision of the Circuit Court, C. P. Thornbrough, Commissioner of Labor, has prosecuted this appeal.

The pertinent facts in this case are not in dispute. Appellee lost his job with the International Paper Company without blame on his part. He was, for all purposes of this opinion, entitled to receive benefit payments under the Employment Security Act UNLESS he forfeited his right to receive such payments by refusing to accept employment with Ben Pearson, Inc.

Whether or not appellee did forfeit his right to benefit payments presents a question of law involving the interpretation of a portion of the Act heretofore mentioned. The portions of said Act with which we are here concerned are found in Ark. Stats. § 81-1106. Under Subsection (c) [in the Supplement] of the above Section appellee became disqualified to receive payments if he “failed without good cause to . . . accept available suitable work” when it was offered to him. It is not denied here by appellee that suitable work was offered to him except for one thing, that is, he would be subjected to the possibility of being fined or discharged by his union if he accepted work for less than union wages. It was, therefore, contended by appellee that he had good cause to refuse the job and that he was protected (from disqualification) by Subsection (c) (2) (c) of said Ark. Stats. § 81-1106 which reads: “. . . if as a condition of being employed, the individual would be required to join a company union or to resign from or refrain from joining any bona fide labor organization”.

The trial court held, in effect, that the threat to appellee of being fined or discharged by his union amounted to requiring him to resign from his union. In so holding we think the trial court fell into error. It is true that the trial court had no precedent laid down by this Court by which to be governed in reaching its decision, but we find the question has been uniformly resolved adversely to appellee’s contention by numerous decisions of other jurisdictions.

A similar factual situation under essentially the same statute with which we are here concerned was resolved as above indicated by the Supreme Court of Ohio in Chambers v. Owens-Ames-Kimball Co., et al, 146 Ohio 559, 67 N. E. 2d 439, 165 A. L. R. 1373. In that case the Court, in answer to the same contention here made by appellee, among other things, said:

“. . . the interpretation of appellee would make the operative effect of a refusal to work depend entirely upon the whim or caprice of an organization to which the applicant for unemployment compensation might belong. It is within the range of possibility that a labor organization might adopt a rule that no member could work where negroes are employed, or where the employment calls for more than four hours as a day’s work, or where the place of business of an employer is more than a mile from the residence of the unemployed member, or where an employer fails to maintain certain facilities relating to the conditions of employment, even though not required by law so to do, or where an employer does not pay a wage equal to the union wage for the same kind of work.

Under such an interpretation, the right of the applicant for unemployment compensation would not be fixed or determined by the provisions of the statute but by rules adopted by organizations in which the applicant has membership. Such interpretation of the statute, and as a consequence its administration in conformity to such interpretation, is clearly untenable.

Under appellee’s interpretation of the statute, an unemployed nonunion workman would be obliged to accept the same job which the appellee refused to accept and would be required to work without right to participate in the unemployment compensation benefits. ’ ’

We have set out the above quotations for the reason that they set forth the basis upon which the Court made its determination, and because we think the reasoning set forth therein is sound and convincing.

Our research reveals that the conclusion and the reasoning in the Chambers case, supra, appears to be universally adopted in other jurisdictions. Among such decisions we call attention to the following: Paulee Mills v. Mississippi Employment Security Commission, 228 Miss. 789, 89 So. 2d 727, 56 A. L. R. 2d 1010; Bigger v. Unemployment Compensation Commission, 4 Terry 553, 43 Del. 553, 53 A. 2d 761; Barclay White Company v. Unemployment Compensation Board of Review, Department of Labor and Industry, 159 Pa. Super. 94, 46 A. 2d 598; Dwyer v. Appeal Board of Michigan Unemployment Compensation Commission, et al, 321 Mich. 178, 32 N. W. 2d 434; and Unemployment Compensation Commission v. Tomko, et al, 192 Va. 463, 65 S. E. 2d 524, 25 A. L. R. 2d 1071.

It is our conclusion, therefore, based on the foregoing, that the judgment of the trial court must be, and it is hereby, reversed and tbe cause of action is dismissed.

Reversed and dismissed.


source: Caselaw Access Project

author: Paul Ward, Associate Justice. George Rose Smith, J.,

license: Public Domain

text:
    Wayland v. Snapp.
    5-2158
    334 S. W. 2d 633
    Opinion delivered April 18, 1960.

      Knox Kinney, for appellant.

      Fuller Highsmith, Mehaffy, Smith & Williams, for appellee.
   Paul Ward, Associate Justice.

Becently the City of Batesville voted overwhelmingly to issue $1,000,000.00 in Bevenue Bonds under the provisions of Act No. 9 of the General Assembly, approved January 21, 1960, and Independence County (the county in which Batesville is located) voted to issue $500,000.00 in General Obligation Bonds under the provisions of Amendment No. 49 to the Constitution of Arkansas (adopted at the General Election on November 4, 1958). The overall purpose of the City and Connty in authorizing said bond issues was to secure and develop new industries and thereby relieve unemployment. The manner in which this objective was to be achieved will he set out more fully later.

This litigation tests the legality of the above proposed bond issues and the proposed development program based thereon. A Complaint was filed by Paul T. Wayland (appellant herein), a citizen and taxpayer of Batesville and Independence County, against the County Judge of Independence County and also against the May- or, Clerk and Aldermen of the City of Batesville, all of whom constitute the appellees herein. To said Complaint appellees filed a Demurrer on the ground that it did not state facts sufficient to constitute a cause of action. The trial court sustained appellees’ Demurrer, whereupon appellant declined to plead further, and on March 3, 1960, appellant’s Complaint was dismissed. From such action of the trial court this appeal is being prosecuted.

Complaint. After identifying all of the parties heretofore mentioned, and after setting out portions of said Amendment No. 49 and said Act No. 9, the Complaint, in substance alleges:

1. Some time ago negotiations were undertaken with Seiberling Rubber Company, Inc., a corporation with headquarters in Barberton, Ohio, and sometimes called “Seiberling” for the location of a substantial manufacturing plant within Independence County, the purpose being to alleviate unemployment, to increase employment opportunities and to make available increased payrolls in the City of Batesville and Independence County — all for the best interest of said City and and County; it was agreed that Seiberling would locate and operate an industrial plant near the City of Batesville provided the City and the County acquired the necessary land and constructed the necessary manufacturing facilities thereon; it was determined by said City and County that to obtain such objective it would be necessary for the City to issue Revenue Bonds in the amount of $1,000,000.00 and for the County to issue General Obligation Bonds in the amount of $500,000.00; the City of Batesville proposes to lease said building and premises after the completion to Seiberling and the rentals therefrom are to be applied first to the payment of principal and interest on the Revenue Bonds issued by the City and thereafter redeem, prior to maturity, the bonds issued by the County under Amendment No. 49; with the proceeds derived from the bonds the City proposes to acquire the necessary land and to construct the necessary manufacturing facilities thereon and then to lease the same to Seiberling with the base period of the lease to cover the life of the proposed issue and the County will levy and collect a tax of five mills on each dollar of assessed valuation to retire the General Obligation Bonds issued pursuant to-Amendment No. 49. To carry out the above project the City of Batesville has adopted an Ordinance calling for a special election in regard to the Revenue Bonds, and Independence County (through the County Court) has entered an order calling for an election with reference to said General Obligation Bonds, attaching copies of said Ordinance and said Order.

2. The issue and maturity dates of said bonds are-set out and it was then alleged that the annual rental to be paid by Seiberling under said lease would not be sufficient to meet the annual principal, interest and agent’s-fee requirements of both the Revenue and the General Obligation Bonds referred to above.

3. As security for the Revenue Bonds the City will mortgage the land and manufacturing facilities constructed thereon, the mortgage giving the bondholders the right of foreclosure in event of a default; in addition, the City will grant to a trustee for the bondholders the right to have a receiver appointed for said land and facilities with the right of lease, rent and operation of the same during the duration of any default; and also, as provided in said Act No. 9 the City will pledge all of its surplus utility revenue for the payment of the principal of and the interest on the said Revenue Bonds.

4. There is widespread unemployment in Independence County which would be alleviated by the subject project, however, the actions of the defendants in calling an election for the purposes above stated, the issuance of said bonds and the levying and collection of taxes for the payment of the same and entering into a long time lease with Seiberling, are all in violation of the Constitution and laws of the State of Arkansas in the following respects :

(The Complaint here sets ont several specific Constitutional and legal objections. These are not copied for the reason that included therein are the points relied on by appellant for a reversal of this case. These points will be discussed later in the opinion.)

5. In the prayer of the Complaint the trial court is asked to declare that the actions heretofore taken by appellees and actions proposed to be taken by them are unauthorized by and are contrary to the laws and Constitution of the State of Arkansas.

For a reversal appellant relies upon the following points: (1) The proposed issuance of bonds by appellees constitutes a violation of Article 12, Section 5, and Article 16, Section 1, as amended by Amendment No. 13, of the Arkansas Constitution; (2) Act No. 9 authorizes municipalities and counties to engage in activity and issue bonds for purposes which are not public, and, thus, is contrary to the Arkansas Constitution; (3) The proposed action of Independence County in making available proceeds of bonds issued under Amendment No. 49 for the construction of facilities to be owned by the City of Batesville is unauthorized by and contrary to said Amendment No. 49; (4) Since Act No. 2 requires that counties and municipalities engaging in cooperative efforts to secure industry form compacts, the failure to do so in this case causes the proposed method of financing to be invalid. (5) The contemplated pledge of surplus municipal utility revenues is contrary to Amendment No. 10 to the Arkansas Constitution; (6) The proposed granting of a forecloseable mortgage lien and the right to appointment of a receiver contrary to the laws of the State of Arkansas; (7) The representation that the manufacturing facilities in question will be exempt from ad valorem taxation and the proposed action of the City and County to implement the representation are contrary to Article 16, Sections 5 and 6, of the Arkansas Constitution; and (8) The proposed method of financing, constructing, leasing, taxing and applying funds and lease rentals is unauthorized and contrary to the Constitution and laws of the State of Arkansas.

We have given careful consideration to the exhaustive and well-presented arguments and authorities contained in the brief of appellant and the brief of appellees, but find ourselves in disagreement with appellant’s conclusions on each and every point. There being no issue of fact involved, we proceed now to examine separately each of the points relied upon by appellant for a reversal :

(1)

The proposed issuance of bonds by appellees constitutes a violation of Article 12, Section 5, and Article 16, Section 1, as amended by Amendment No. 13 of the Arkansas Constitution. Although appellant, in the above statement, uses the plural in referring to appellees we will assume that his main contention relates to the City and not to the County. We say this because it is hard to understand how it could be logically contended that Amendment No. 49 conflicts with or in any way violates the sections of the Constitution referred to. It is understood by all, of course, that the General Obligation Bonds which the County proposes to issue are being issued under the authority granted in Amendment No. 49.

As it relates to the Revenue Bonds to be issued by the City of Batesville, Article 12, Section 5 of the Constitution, in all parts material here, reads: “No county, city, . . . shall become a stockholder in any company, association, or corporation; or obtain or appropriate money for, or loan its credit to, any corporation, association, institution or individual.” Article 16, Section 1 of the Constitution, in all parts material here, reads: “Neither the State nor any city . . . in this State, shall ever lend its credit for any purpose . . .” For the purpose of this opinion Amendment No. 13 to the Constitution reads the same as Article 16, Section 1.

The Revenue Bonds to be issued by the City of Bates-ville in this instance are not, of course, a general obligation of the City. That is, the bonds will not be retired by levying any kind of tax upon the people of Batesville, but they will be retired from revenues derived from lands, buildings, and facilities as well as from surplus revenues derived from certain utilities owned by the City (as described in Section 6 of said Act No. 9). Revenue Bonds, as distinguished from General Obligation Bonds, have been approved many times by this Court for public financing. Among other cases see Jernigam v. Harris, 187 Ark. 705, 62 S. W. 2d 5; McGehee v. Williams, 191 Ark. 643, 87 S. W. 2d 46; Robinson v. The Incorporated Town of DeValls Bluff, 197 Ark. 391, 122 S. W. 2d 552; Austin v. Manning, Mayor, 217 Ark. 538, 231 S. W. 2d 101; and McCutchen v. Siloam Springs, 185 Ark. 846, 49 S. W. 2d 1037. Likewise, this Court has repeatedly held that the issuance of revenue bonds, being special bonds as distinguished from general obligation bonds, does not violate any of the Constitutional provisions contained in the sections relied on here by appellant. See: Snodgrass v. Pocahontas, 189 Ark. 819, 75 S. W. 2d 223, wherein the Court stated at Page 824 of the Arkansas Reports: “It was manifestly the intention of the framers of Amendment No. 13 to prohibit cities and towns from issuing interest-bearing evidences of indebtedness, to pay which the people would be taxed, or their property appropriated to pay the indebtedness, or any indebtedness that placed any burden on the taxpayers. It was not the intention to prohibit cities and towns from making improvements and pledging the revenue from the improvements so made alone to the payment of the indebtedness.” (Emphasis supplied.) It is clear in the case under consideration that the Revenue Bonds to be issued by the City of Batesville can never be a burden on the taxpayers, but that they must be paid alone from the revenue derived from the building and from the surplus revenue above mentioned. The legality of the pledging of the latter mentioned revenue will be discussed later.

The issuance of revenue bonds under statutes similar to Act No. 9 of 1960 have been upheld in other jurisdictions. See In Re Opinion of the Justices, 254 Ala. 506, 49 So. 2d 175; In Re Opinion of the Justices, 256 Ala. 162, 53 So. 2d 840; and Newberry v. City of Andalusia, 257 Ala. 49, 57 So. 2d 629.

Nor do we agree with appellant’s assertion that the Revenue Bonds issued by the City of Batesville are for the benefit of a private corporation. Even though Seiberling may reap some benefit, yet such benefit is merely incidental and the main benefits are those to be derived by the people of Batesville and Independence County under the provisions of Act No. 9 and Amendment No. 49.

(2)

Act No. 9 authorises municipalities and counties to engage in activity and issue bonds for purposes which are not public, and, thus, is contrary to the Arkansas Constitution. Again we assume that appellant has reference to the Revenue Bonds since the bonds issued by the County could not be in violation of the Constitution since they are being issued in accordance with part of the Constitution, that is, Amendment No. 49. Section 2 of said Act No. 9 reads as follows: “Any municipality and any county is hereby authorized to own, acquire, construct, reconstruct, extend, equip, improve, operate, maintain, sell, lease, contract concerning, or otherwise, deal in or dispose of any land, buildings, or facilities of any and every nature whatever that can be used in securing or developing industry within or near the municipality or county.” We take appellant’s argument to mean that the act of “securing or developing industry” is not a public purpose. There are several reasons why we cannot agree with this contention. In the first place, Section 1 of Amendment No. 49 makes such an activity a public purpose. Not only so but the courts seem to be in agreement that such activity constitutes a public purpose. In the case of Albritton v. Winona, 181 Miss. 75, 178 So. 799, 115 A. L. R. 1436, the Court said:

“The care of the poor, the relief of unemployment, and the promotion of agriculture and industry are undoubtedly proper governmental purposes and are so recognized everywhere and by all.” (Emphasis supplied.)

For similar holdings see Newberry v. City of Andalusia, supra; Dyche v. City of London, (Ky.), 288 S. W. 2d 648; Miller v. Police Jury of Washington Parish, 226 La. 8, 74 So. 2d 397; and Steward Machine Company v. Davis, 301 U. S. 548, 57 S. Ct. 883, 81 L. Ed. 1279.

(3)

It is appellant’s contention that the proposed bond issue under Amendment No. 49 by the County is illegal because the County will not hold title to the building to be erected and also because the County will not reap the benefits. We are cited no authority to support this contention and we see no merit in it. This Court had occasion to consider the purpose of Amendment No. 49 in the case of Myhand v. Erwin, 231 Ark. 444, 330 S. W. 2d 68, decided December 21, 1959. In that case there was an undertaking to sell bonds under Amendment No. 49 to build a road to a site where Potlatch Forests, Inc. proposed to build a factory. The first objection raised on appeal was ‘ ‘ that benefits from the proposed road will not be confined to Potlatch Forests, Inc., but will likewise benefit members of the traveling public.” In reply the Court said: “We do not agree with appellant’s contention. It is true that some members of the public may use the road, but the fact that benefits cannot be isolated, is no reason to preclude such benefits for those who properly come within the scope of the amendment, as envisioned by the people in adopting same. This Court has been liberal in its construction of constitutional amendments, so as to carry out the obvious purpose of the people in adopting the amendments. ’ ’ Following the above the Court announced the principle that there was an implied authority to employ reasonable means to carry out the purpose of the amendment.

It must be admitted too that the prime objective to be achieved by the people of Independence County, in this entire undertaking, was not just to erect a building but it was to alleviate unemployment. If this objective is achieved it is obvious that the County, including the City of Batesville, will reap the benefits. It is well establislied, of course, that the City has a right to own property and to hold the title to same in any situation unless it is prohibited from doing so by statute or the Constitution. We know of no such prohibition in this case.

(4)

We are not convinced by appellant’s argument that the methods here proposed to issue bonds are illegal because the provisions of Act No. 2 of the First Extraordinary Session of 1960 were not followed. Said Act No. 2, among other things, provides in effect that two counties, two cities (whether or not in the same county) and a city and a county are “authorized and empowered” to join together in a compact to secure industries, etc. It is apparent, of course, that Act No. 2 did not compel the City of Batesville and Independence County to form a compact but merely authorized them to do so if they so desired. The ultimate implication of appellant’s argument is that Amendment No. 49 cannot stand alone but must be implemented, in this instance, by Act No. 2. Such argument is not sound because this Court has already decided in the Myhand case, supra, that Amendment No. 49 is self-executing. In that case it was also decided that it was proper to proceed under the provisions of Amendment No. 49 independently of Act No. 121 of 1959. The same process of reasoning leads us to conclude that, likewise, appellees can here proceed under Amendment No. 49 independently of said Act No. 2. Act No. 9 of the First Extraordinary Session of 1960, under which the City proposes here to issue revenue bonds is likewise independent of Act No. 2. Consequently, we see no valid objection to the City operating under Act No. 9 and the County operating under Amendment No. 49, both independently of Act No. 2.

(5)

One of the most troublesome questions presented to us on this appeal is the one that grows out of the attempt by the City of Batesville to pledge the surplus revenues of municipally owned utilities to secure the payment of the proposed Revenue Bonds. It is the earnest contention of appellant that this attempt by the City of Batesville violates Amendment No. 10 to the Arkansas Constitution, and particularly as that amendment has been construed by this Court in the case of Williams v. Harris, Mayor, 215 Ark. 928, 224 S. W. 2d 9. The parts of Amendment No. 10 which are pertinent here are the following:

“The fiscal affairs of counties, cities and incorporated towns shall be conducted on a sound financial basis . . . nor shall any city . . . enter into any contract or make any allowance for any purpose whatsoever or authorize the issuance of any contract ... or other evidences of indebtedness in excess of the revenue for such city or town for the current fiscal year . . .”

It is readily conceded by appellees that for the year 1960 the proposed bond issue in the amount of $1,000,000.00 (together with other necessary city expenses) will exceed the total revenues of the City for said year. In the Williams case, supra, this Court gave a rather strict interpretation of Amendment No. 10 which, according to appellant’s contention, invalidates the proposed bond issue in this case. In the cited case the City of Clarksville attempted to pledge the net revenues of its electric light and power plant to the payment of bonds issued for the purpose of securing a new manufacturing enterprise for the city. The attempted pledge was held unconstitutional by this Court in an opinion, which, in part, used this language:

“Self-supporting municipal activities may in a sense borrow on their own credit, independently of the city’s credit. They may even lend their credit for the benefit of other municipal activities when the constitutional debt limit will not thereby be exceeded and the benefited activity is one for which the city has constitutional authority to issue bonds. The present case would go further, however, and free municipal borrowing altogether from the fetters fixed by these amendments in any case where the debt was to be paid from particular income-producing municipal property rather than from taxation. If this were permitted, a city would by indirection be enabled to saddle upon legitimate municipal enterprises the burden of interest-bearing certificates of indebtedness in amounts forbidden by the Constitution, for purposes not authorized by the Constitution.” (Emphasis supplied.)

It was pointed out in the Williams case, supra, that the prohibition against pledging surpluses in excess of the constitutional prohibition (contained in Amendment No. 10) did not apply where the pledged revenue was for the purpose of repairing, improving or extending the subject utility or where there was a close similarity between that utility and the one receiving the benefits of the revenue. It must, of course, be admitted that in the case under consideration there was no such close resemblance and it must be conceded that, if this case had followed immediately after the decision in the Williams case, supra, that decision would be fatal to appellees’ contentions in this case.

In our opinion, however, the case under consideration is distinguishable from the Williams case, supra, in at least two respects:

(1) We think the words italicized in that portion of the opinion copied above were used advisedly and are important to consider in connection with this case. The City of Clarksville was proceeding under statutory authority (Act No. 463 of 1949) while in the case under consideration the City of Batesville is proceeding under Constitutional authority (Amendment No. 49). Amendment No. 49, of course, was not in existence when the Williams decision was rendered.

(2) The people of Arkansas have for the third time decided that the provisions of Amendment No. 10 were too stringent and that the affairs of cities and counties cannot be successfully conducted within the limitations contained therein. In 1926 the Constitution was amended (Amendment No. 13) to provide for the development, improvement of public parks, flying fields, etc. None of these things could have been accomplished under Amendment No. 10. Again in 1928, by Amendment No. 17, provision was made by which the county could construct and reconstruct a courthouse, a jail or a county hospital. The opinion in the Williams case noted: Amendment No. 13, among other things, limits the purposes for which cities of the first and second class may incur bonded indebtedness. The permissible purposes are set out in the third paragraph of the Amendment and do not include the erection of factory buildings . . (Emphasis supplied.) The implication, of course, is that if Amendment No. 13 had included those things then the bond issue in that case would have been legal and Constitutional. In this case it is our conviction that Amendment No. 49 also broadens the scope of Amendment No. 10 and authorizes the issuance of revenue bonds for the express purpose of alleviating unemployment. The first section of Amendment No. 49 reads in part: “Any city . . . may issue bonds . . . for the purpose of securing and developing industry . . .” Thus we find direct, positive authorization for the City of Batesville to issue revenue bonds. It is argued by appellant, however, that Section 1 of Amendment No. 49 must be read in connection with Section 3 and that when so read the Amendment only authorizes the issuance of bonds where they are to be retired from the levy of a special tax. In this we think appellant is in error as a casual reading of Section 3 discloses. While Section 1 of the Amendment authorizes the issuance of such bonds, Section 3 merely provides a permissible way for the retirement of the bonds. The pertinent portion of Section 3 reads as follows: “To provide for the payment of such bonds . . . the municipality or county may levy a special tax . . .” (Emphasis Supplied). Section 3 does not say that a tax must be levied in every instance where bonds are issued. We feel that this conclusion can be justified without resorting to a liberal interpretation of Amendment No. 49 which, as we have pointed out previously, is permissible. If the people of Arkansas were willing (as they were) to burden themselves with a tax (as they did in Amendment No. 49) then it is reasonable to think they intended, and were ■willing, to pledge surplus revenues all in order to try to alleviate unemployment.

(6)

In appellant’s brief this statement is made: “It is appellant’s position that Act No. 9 does not (a) authorize the granting of a foreclosable mortgage and that if it does (b) it is contrary to Amendments No. 10 and No. 13 to the Arkansas Constitution.”

(a) It seems that Section 8 of Act No. 9 refutes the first argument. In that section we find this language:

“There shall be created a statutory mortgage lien upon the land, buildings and/or facilities acquired or constructed with the proceeds of said revenue bonds which shall exist in favor of the holders of said bonds, and in favor of the holders of the coupons attached to said bonds. The land, buildings and/or facilities shall remain subject to such statutory mortgage lien until payment in full of the principal and interest of said revenue bonds.” Insofar as enforceable rights are given to the bondholders we can see no substantial difference between the legal effect of the language copied above from Act No. 9 and the language used in appellant’s complaint with reference to the mortgage that is to be given, where it is stated: “As security for the revenue bonds to be issued by it, the City of Batesville will mortgage the land and manufacturing facilities constructed thereon, which mortgage will grant to the Trustee for the City’s said bondholders and to said bondholders the right of foreclosure in the event of a default . . . ” Thus, there is, we think, ample authority in Act No. 9 for the City to execute the mortgage when the time comes to do so.

(b) The objection by appellant that the right to foreclose could result in the violation of Amendments No. 10 and No. 13 of the Constitution has been answered under Point 5 above and no further comment is necessary.

Appellant further contends that if the right of foreclosure is granted, any attempt by the bondholders to foreclose would amount to a suit against the State contrary to Article 5, Section 20 of the Constitution of Arkansas.

We cannot concur in appellant’s contentions. The general rule seems to he that the Legislature has the power to authorize a suit against a municipality. In Rhyne’s book on “Municipal Law”, published in 1957, this rule is repeatedly announced and sustained by a host of authorities. At Page 382, Section 16-12, Mr. Rhyne, after stating the general rule that property held by a municipality in its governmental capacity is immune from execution and sale for non-payment of debts, makes this statement: ‘ ‘ On the other hand, it has been held that if a municipality has the power to mortgage its property it is subject to foreclosure on the breach of the condition.” Mr. Rhyne further stated (Page 806) that a city, when acting in its governmental capacity is immune to being sued EXCEPT when and if authorized by statute. Although our research has not disclosed any decision of this Court directly in point we are led to conclude from a statement made in Watson v. Dodge, 187 Ark. 1055, 63 S. W. 2d 993, that we will follow the principle above announced. In that case the Court, after affirming the well established rule that the State cannot be sued, made this statement: “Any departure from this rule, except for reasons most cogent (of which the Legislature, and not the courts, is the judge) . . .” (Emphasis supplied.) Confirming the above, see St. Paul-Mercury Indemnity Company v. City of Hughes, 231 Ark. 530, 331 S. W. 2d 106.

(7)

In his Complaint appellant alleges that: ‘ ‘ The City of Batesville has respresented to Seiberling that the land and manufacturing facilities to be leased to Seiberling by the City will be exempt from ad valorem taxes” in violation of Article 16, Sections 5 and 6 of the Arkansas Constitution. Said Section 5, in all pertinent parts, reads as follows: “All property subject to taxation shall be taxed according to its value . . . provided further that the following property shall be exempt from taxation: Public property used exclusively for public purposes.” Section 6 states that: “All laws exempting property from taxation other than as provided in the Constitution shall be void. ” It is then stated that neither Act No. 9 or Amendment No. 49 makes any references to tax exemption. In this statement appellant is correct, however, those facts appear to us to be beside the point. As we understand the above provisions of the Constitution, for property to be exempted from taxation two elements must be present: (a) the subject property must be “public property”, that is, it must be owned (in this instance) by the City of Batesville; (b) it must be used exclusively for public purposes. In our opinion both of these elements are present in the case under consideration as we shall attempt to show.

(a) It must be admitted here that the grounds, the building and facilities will be owned by the City of Bates-ville and will, therefore, be public property.

(b) Likewise, we think it is clear that the property will be used exclusively for a public purpose. If it is, it will be exempt from taxation under the Constitution and if it is not it must be taxed. After careful thought and consideration we cannot escape the conclusion that the whole purpose, and the only purpose, for the adoption by the people of Amendment No. 49, the passage by the Legislature of Act No. 9, and the efforts of the people of Batesville and Independence County (in attempting to implement said Amendment and said Act) was for the public welfare — obviously and undoubtedly a “public purpose”. This result would follow only where the title to property is acquired and the property itself is used by a city or county (or by both) pursuant to Act No. 9 and/or Amendment No. 49.

It cannot be said that any part of the entire program was meant for any other purpose, and certainly not for the purpose of benefiting Seiberling. Any benefit Seiberling may receive from this entire undertaking will be entirely incidental it seems to us.

As to the second objection, obviously, Section 6 of Article 16 has not and will not be violated if, as we have held above, Section 5 has not been violated.

(8)

Finally, appellant makes a general objection to the method he conceives will be used in regard to the financing, constructing, leasing, taxing and applying funds and lease rentals. It is stated that there is no authorization in the Constitution or the statutes for the employment of these methods. Appellant does not indicate in just what way these activities will be unlawful or unconstitutional and we know of none. We believe that all of the objections raised under this point have been disposed of in our discussion of the previous points and that no further commentary is necessary or will be useful.

It is our conclusion, therefore, that the decree of the trial court in dismissing appellant’s Complaint should be, and it is hereby, affirmed.

Affirmed.

McFaddin and George Rose Smith, JJ., dissent.

George Rose Smith, J.,

dissenting. I am unable to agree with the majority’s conclusions upon the fifth and seventh points.

In holding that the proposed pledge of surplus utility revenues does not violate Amendment 10 the majority not only have disregarded the distressing financial experiences that brought about the adoption of that Amendment but also have in effect overruled our earlier decisions upon the subject. I regard those decisions as sound and would stand by them.

Before the adoption of Amendment 10 cities and counties were permitted to make purchases on credit and to pledge the expected revenues of future years as security for current obligations. It was then common knowledge, and is now familiar history, that many local governments traveled this avenue of deficit financing to the point of insolvency. Warrants and other scrip issued- by those local governments could not be paid immediately and at par, for cash was not available. The holder of public paper either had to sell it at a discount or keep it for months or years until its turn for payment was reached. In this situation public employees were compelled to work for a discounted salary. As might be expected, the cities and counties were overcharged for everything they bought, for the seller increased his price to offset the depreciated value of the public currency.

By their approval of Amendment 10 the people expressed their determination to bring about a sound system of local governmental financing. The amendment put the cities and counties upon a pay-as-you-go basis, limiting their permissible obligations to the revenues of the current year. The only exception in the amendment permitted the funding of existing indebtedness by means of a bond issue secured by a special three-mill tax levy. Later on Amendment 13 permitted cities to issue bonds, secured by a five-mill tax, for several specified public improvements, and still later Amendments 17 and 25 allowed the counties to issue bonds, secured by a five-mill tax, for the construction of courthouses, jails, and hospitals. And now Amendment 49 authorizes the issuance of bonds, secured by a five-mill tax levy, for the development of new industries.

Until today’s decision this court had adhered to the spirit of Amendment 10. One of the earlier cases, Johnson v. Dermott, 189 Ark. 830, 75 S. W. 2d 243, is almost identical with the case at bar. There the city of Dermott sought to pledge the surplus revenues from its electric light plant to secure a loan for the construction of a hospital — an improvement specifically permitted by Amendment 13. (In like manner the city of Batesville now seeks to pledge similar surplus revenues to secure a loan for a purpose permitted by Amendment 49.) We held that a profit from the operation of a municipally owned utility constituted income that might be used for general purposes, but it was subject to the restrictions of Amendment 10. This language in the opinion should control the case at bar:

“We conclude, therefore, that it is not beyond the power of the city to enter into a contract to erect a hospital and to segregate the revenues arising from the water and light systems and to pledge these excess revenues for that purpose. But this power may not be exercised in violation of Amendment 10 to the Constitution. Any contract which the city makes in regard to uncollected revenues from any source must be construed with reference to this amendment. Parties cannot, by pleadings or stipulations of any kind, abrogate this amendment which will be read into any contract which the city may make. This amendment provides that the fiscal affairs of counties, cities, and incorporated towns shall be conducted on a sound financial basis, and that no allowance shall be made ‘for any purpose whatsoever in excess of the revenues from all sources for the fiscal year in which said contract or allowance is made.’ Beyond this inhibition there is a lack of power to contract.”

The cases were reviewed in Williams v. Harris, 215 Ark. 928, 224 S. W. 2d 9, where the city of Clarksville wished to pledge surplus utility revenues for the payment of bonds to be issued for the attraction of a new industry. We held that the proposal violated the constitution in three respects: (a) It was for a purpose not authorized by the constitution; (b) it was “in an amount above the limit set by Amendment 10”; and (c) it involved a pledge of future utility revenues for an undertaking not connected with the utility. It is true, as the majority point out, that Amendment 49 has satisfied the first defect, the absence of constitutional authorization, but the other two objections still remain. Thus the majority’s holding is directly contrary to both of the cases just cited.

Amendment 49 was needed to accomplish its purpose, because there were several provisions in the constitution (not merely Amendment 10) that prevented the issuance of bonds to attract industry and the levy of a property tax to pay those bonds. By its language the amendment is directed only to the authorization of bond issues. Literally every sentence in this rather long amendment not only refers to, but also deals solely with, either the bonds themselves or the election at which they are to be voted upon. I find not one syllable in Amendment 49 to warn the voters that in approving the amendment they were partially repealing a basic safeguard previously placed upon local governmental financing. By the majority’s reasoning one might as well say that the guaranty of free speech was also repealed to the extent that such speech might interfere with the acquisition of new industry. Industrial development is a worthwhile purpose; Amendment 49 should be liberally construed. I cannot, however, share the majority’s belief that the people, in approving Amendment 49, meant to run roughshod over any other constitutional provision that might in practice hamper the most zealous of efforts to attract new industry.

The seventh point, involving the tax exemption of the new plant and its grounds, is not made absolutely clear by our prior decisions, but if the point is to be determined I think we should say that this property will be taxable. Were the matter left up to me I would not pass upon the question at all, for no justiciable issue is presented. The complaint merely asserts that the city has represented to Seiberling that the lands and facilities will be tax-exempt, and this representation is said to be contrary to the constitution. There is no actual controversy between these parties; we are simply being asked to give advice upon an abstract question of law that may arise if the taxing authorities seek to tax this property and if the city decides to resist the tax. It is not our duty, even under the declaratory judgment act, to pass upon academic questions. The majority, however, apparently think it best to give advice in this instance; so I must set forth my reasons for thinking it to be bad advice.

The constitution exempts “public property used exclusively for public purposes.” Const., Art. 16 § 5. Obviously the framers did not mean to exempt all public property, for in that event there would have been no need to insert the phrase, “used exclusively for public purposes.” The inclusion of that phrase demonstrates conclusively that the exemption does not embrace all publicly owned property; it must also be used exclusively for a public purpose.

The question was thoroughly considered in School District of Ft. Smith v. Howe, 62 Ark. 481, 37 S. W. 717, where the school district owned property which was rented to private tenants, with the rents being used for school purposes. In holding that the property was subject to taxation we said: “It seems clear that the intention was to exempt only that public property which in itself directly subserved some public purpose by actual use, as distinguished from property belonging to the public but not used by it, and from which a benefit accrues to the public, not by the immediate use thereof by the public, but indirectly through selling or renting the same to private parties. To illustrate: Some of these lots have buildings upon them, and are rented to different tenants. One may be rented to a grocer, another to a butcher, and another to a saloonkeeper. Although the object and effect of renting the property in such cases may be a benefit to the public, yet we cannot say that such property is used exclusively for public purposes. . . . The purpose for which these tenants use this property is their own private gain, and the fact that they pay rents to the public does not change the purpose of this use from a private to a public one.”

We have many other cases to the same effect, holding that the tax exemption must be strictly construed and that property falls within one of the exemptions only if it is actually used for the exempt purpose. Brodie v. Fitzgerald, 57 Ark. 445, 22 S. W. 29; Pulaski County v. First Baptist Church, 86 Ark. 205, 110 S. W. 1034; Burbridge v. Smyrna Baptist Church, 212 Ark. 924, 209 S. W. 2d 685; Hilger v. Harding College, 231 Ark. 686, 331 S. W. 2d 851. The only contrary decision, Hogue v. Housing Authority of North Little Rock, 201 Ark. 263, 144 S. W. 2d 49, was, like the case at bar, based upon expediency, as the dissenting opinion of Judge Frank Smith pointed out. The Hogue case cited none of our decisions to support its holding on this point. It has not been followed in later cases and does not, in my opinion, represent the law in Arkansas.

The majority disregard the constitutional requirement that the property be used exclusively for public purposes. Are we to say that Seiberling is not using the property at all, even though it is occupying it for the sole purpose of private gain? Of course not. Seiberling’s business will incidentally redound to the public’s benefit by reducing unemployment, but the same thing is true of any established business concern which owns or leases its site of operations. If the mere reduction of unemployment constitutes an exclusively public purpose then all the commercial property in the state should be declared to be exempt from ad valorem taxation.

Counsel for the appellees present a plausible argument to the effect that if the original purchase by the city and county can be justified as being for a public purpose it should follow that the use by Seiberling is also for a public purpose. This argument overlooks the fact that the constitutional reference to a tax-exempt public purpose is much narrower than many other senses in which the phrase may be used. For example, the power of eminent domain can be exercised only for a public purpose. Hence a railroad company is acting for a public purpose when it condemns a right of way for its tracks, but no one would suppose that the property is therefore tax-exempt after the railroad company acquires the title.

I regret that I cannot express more effectively my strong disagreement with the majority opinion in this case.

McFaddin, J., joins in this dissent.


author: Sam Robinson, Associate Justice.

text:
    Covey v. State.
    4976
    334 S. W. 2d 648
    Opinion delivered April 18, 1960.

      Shaver, Tackett & Jones, for appellant.

      Bruce Bennett, Atty. General by John T. Haskins, Asst. Atty. General, for appellee.
   Sam Robinson, Associate Justice.

The appellant, Larry Covey, was charged with murder in the first degree in the killing of Wilbur Short. He was convicted of voluntary manslaughter and his punishment fixed at four years in the penitentiary. Appellant admits the killing but contends that he acted in self-defense. Ark. Stats. § 41-2231 provides: “Justifiable homicide is the killing of a human being in necessary self-defense, or in defense of habitation, person or property, against one who manifestly intends or endeavors by violence or surprise, to commit a known felony.” Section 41-2236 provides : “In ordinary cases of one person killing another in self-defense, it must appear that the danger was so urgent and pressing, that in order to save his own life, or to prevent his receiving great bodily injury, the killing of the other was necessary, and it must appear also that the person killed was the assailant, or, that the slayer had really and in good faith, endeavored to decline any further contest, before the mortal blow or injury was given. ’ ’

On appeal Covey stoutly maintains that there is no substantial evidence to support the verdict. He is 21 years of age and had been having trouble over a period of months with one Denzil Jones. Covey testified that he had been accused by Jones of causing Jones’ wife to leave him; that he and Jones had engaged in six or eight fights, and in the last fight with Jones he (Covey) was knocked in the head and had to go to a hospital for treatment; that Jones had offered a reward of $100 to anyone who would kill or “scar” Covey. Appellant testified that the last time Jones beat him up, the matter was in municipal court and Jones was fined for the act, and that later he, appellant, obtained a .22 caliber pistol and carried it for his protection.

It appears that on the night of the homicide, at a drive-in known as Lacey’s No. 2, appellant got out of his car to speak to his cousin. At that time he was called by one Sonny Jackson and the two of them went into the restroom. Jackson told Covey that Wilbur Short was present at the drive-in; that he was drunk and crazy and had made threats against appellant. The testimony of Jackson, who was called as a witness by the State, and that of Covey is in. accord in some respects; in others, it is in sharp conflict as to just what occurred and what was said in the restroom. Jackson warned Covey against Short and endeavored to get Covey to leave the drive-in and thereby avoid Short. Covey stated that he knew Short only by sight and conld not believe that Short would want to cause him any harm, but according to Jackson’s version he explained that Short was then the boy friend of Jackson’s ex-wife, and that Short had stated that Covey had taken the girl on an automobile ride and had caused her to wall?: home. Covey contends that Jackson finally stated that Short’s ill feeling toward Covey was due to the influence of Denzil Jones, who was a friend of Short’s. While in the washroom Jackson exhibited to Covey what Jackson says was Short’s pistol, which Short had turned over to him a little earlier that night. Jackson did not state, however, that he told Covey it was Short’s pistol. Covey says that the pistol Jackson exhibited to him was only an imitation pistol and not a real firearm at all; that Jackson made the remark to Covey “you know how that gang fights,” implying that it was with weapons rather than just mere fair fist fighting. In any event, the two agreed that they would leave the washroom by Jackson going in front and if Short was near the door Covey would push Jackson into Short, thereby giving Covey an opportunity to run. But Covey says that upon leaving the washroom and seeing that Short was there, Jackson stepped aside, giving Short an opportunity to attack Covey. The most important facts in the case are the actions of the parties that followed immediately. Short ran at Covey and struck him with his fist and stepped back a couple of steps. Covey was not knocked down, but he also stepped back a couple of steps. Covey says that Short struck him with his left fist and had a pistol in his right hand. Jackson says that Short had nothing in his hand; that when he stepped back after striking Covey he assumed an “open boxing stance. ’ ’ Covey had his pistol in his right-hand pocket; he immediately pulled it and shot Short twice, killing him.

It is impractical to set out here an abstract of all the evidence in the case. The record is rather large and numerous witnesses testified. If Covey’s testimony was true, it would be hard for anyone to say that he was not acting in self-defense in slaying Ms assailant. But on the other hand, if Short had merely struck Covey with his fist and stepped back, assuming the pose of a boxer, ready to engage in a fair fist fight, and in those circumstances Covey shot him down, it cannot be said that the facts do not sustain the conviction of voluntary manslaughter.

“Manslaughter must be voluntary, upon a sudden heat of passion, caused by a provocation, apparently sufficient to make the passion irresistible.” Ark. Stats. § 41-2208. There was considerable other evidence in the ease from which inferences could be drawn as to who was telling the truth, and undoubtedly the jury would have been completely justified in acquitting the defendant if they had believed his version of the killing. The jury had the opportunity to observe all the witnesses and their demeanors on the stand, and was therefore in a much better position than is this Court to judge the credibility of the witnesses.

Jerry Spencer was present at the time of the killing. He was called as a witness by the State and the prosecuting attorney asked him the following question concerning what the deceased said, if anything, immediately after the shooting: “Did you hear this person say anything? A. Seems like he said something like ‘Please don’t shoot me again’, or —” The attorney for the defendant objected. The Court said: “The objection is well taken, because the witness said ‘It seems like he said’. (To the witness) We can go into what it seemed like or what you guess he might have said. If you know what he said, you may so testify.”

“Witness: I don’t know his exact words, but it was something to that effect.
Q. To what effect?
A. To the effect of ‘Please don’t shoot me any more.’ ”

The defendant objected.

“The Court: This man is not a professional witness. I don’t imagine you have testified too much before, have you, Jerry?
“Witness: No, this is the first time I’ve ever been here.
The Court: (To witness) Of course, you cannot testify as to any impression you might have gotten of what anyone has said. If you can remember his exact words, that is the best. If you cannot remember his exact words, but you definitely remember the approximate words spoken, then you may so state, but you cannot give an impression of what he said.
Witness: Well, that was approximately what he said. ’ ’

The defendant made his objections and saved his exceptions, but no objections were made to the remarks of the court as such.

Of course, a witness cannot state his impressions, conclusions, inferences, suppositions or understanding of a matter unless such answer is equivalent to a statement of the fact asked for, but witnesses are not required to give their testimony with absolute positiveness. A witness who is not positive may make a statement of a fact to the best of his recollection or belief and his testimoney should not be excluded because he uses “it is my impression”, “I think”, or a similar expression where he means that he is testifying to the best of his recollection or an indistinct remembrance of facts within her personal knowledge. 98 C. J. S. 79. It appears that although Spencer may not have remembered the exact words spoken by the deceased, he stated what was said approximately, as he remembered it.

Appellant contends that the court erred in allowing him to be impeached on a collateral matter brought out on cross-examination, and if this were the case, it would be error. Everett v. State, 231 Ark. 880, 333 S. W. 2d 233. But appellant asserts here and contended at his trial in circuit court that his trouble with Short grew out of appellant’s difficulty with Denzil Jones. There was testimony from which the jury could have drawn the inference that Jones had paid Short $100 to harm Covey. Although Covey was not questioned on direct examination about a fight he had with Denzil Jones at Spero’s Drive-in a few months before the killing, on cross-examination the prosecuting attorney asked him questions apparently calculated to establish that insofar as Covey’s trouble with Jones was concerned Covey was the aggressor. On the occasion at Spero’s Covey was in a car with Buford Hester. It was shown by cross-examination of Covey that before the fight with Jones started, Covey had made a phone call. He testified that it was to a young lady at Hooks, Texas. He was asked if, after making the call and returning to the car, he did not say to Buford Hester “he will be here in a minute. ’ ’ Appellant denied making the statement. He was also asked if he did not make the further statement “I am going to make him put up or shut up,” and appellant denied making that statement. It was shown that Covey’s father arrived at the scene and appellant was asked if he did not make the statement to Hester that appellant’s father had hit him by mistake. Appellant denied making this statement.

Buford Hester was called by the State and testified that Covey did make the statement “he will be here in a minute”, and also the other statement to the effect that he was going to make him “put up or shut up”, and that Covey’s father must have hit him by mistake. The implication of this impeaching testimony is that Covey called his father in anticipation of starting a fight with Jones. Appellant blames the killing on Jones and contends that he was wrongfully assaulted by Jones on more than one occasion and that Jones instigated this trouble and caused Short to make the attack upon Covey. In these circumstances we do not believe that it can be said that the State impeached appellant on a collateral matter. Harris v. State, 175 Ark. 1166, 2 S. W. 2d 66.

The court gave instruction No. 8 as follows:

“You are instructed that evidence is of two kinds, namely: direct or positive and circumstantial, and that any fact in the case or any element of the crime charged, may be proven by either kind or by both kinds of evidence ; and if any fact in this case, or any element necessary to constitute the crime has been established by direct or circumstantial evidence, or by both kinds, then such fact or element has been sufficiently proved, and if upon a consideration of all the facts proven in the case you believe beyond a reasonable doubt, that the defendant is guilty of a crime it is your duty to so find.”

Appellant says that no instruction on circumstantial evidence should have been given to the jury. We do not agree. There was a good deal of circumstantial evidence in the case. Much of this kind of evidence was in regard to whether Short was armed with a pistol at the time of the killing.

Appellant also complains of that part of instruction No. 10 wherein the court told the jury: “The killing being proved, the burden of proving circumstances of mitigation that justify or excuse the homicide shall devolve on the accused, unless the proof on the part of the State is sufficiently manifest that the offense amounted only to manslaughter, or that the accused was justified or excused in committing the homicide.” This was not error. The instruction is in the language of the statute (Ark. Stat. § 41-2246) and a similar instruction was approved in Brown v. State, 231 Ark. 363, 329 S. W. 2d 521.

Other assignments of error are argued, all of which we have examined carefully, but we find no error.

Affirmed.


author: Jim Johnson, Associate Justice.

text:
    Walton v. State.
    4969
    334 S. W. 2d 657
    Opinion delivered April 18, 1960.

      W. Harold Flowers, for appellant.

      Bruce Bennett, Atty. General by Ancil M. Beed, Asst. Attorney General, for appellee.
   Jim Johnson, Associate Justice.

Tbe appellant was charged with tbe crime of murder in tbe first degree, and, when arraigned, entered bis plea of guilty. A jury was impaneled and after tbe conclusion of tbe evidence tbe court told tbe jury that:

“Tbe law provides that in cases of this kind where tbe accused confesses bis guilt, tbe Court shall impanel a jury and examine testimony, and the punishment for tbe crime shall be found by such jury. ’ ’

Having defined tbe term “murder in tbe first degree” tbe Court instructed tbe jury as follows relative to tbe issue here considered:

“In this case the defendant, Edward Walton, Jr., has entered a plea of guilty. In other words, be has confessed bis guilt. Tbe only question for tbe Jury to decide is tbe punishment to be imposed. Under tbe Information filed against tbe defendant, if you believe tbe evidence justifies it, it is competent for you to fix Ms punishment at death in the electric chair, or at life imprisonment in the Arkansas State Penitentiary.
“Yon are instructed that ordinarily a defendant starts out in the beginning of the trial with the presumption of innocence in Ms favor, which presumption follows Mm throughout the trial, or until the evidence convinces the Jury of his guilt beyond a reasonable doubt. However, in this case no presumption of innocence attaches to this defendant, Edward Walton, Jr., since he has entered a plea of guilty, and has admitted his guilt in open court. The only question for you to decide is what his punishment should be. * * *
“You will consider, then, only the extent of punishment — death or life imprisonment . . .”

After the jury had been so instructed, and upon conclusion of the closing arguments, the Court thereupon addressed the Jury as follows:

“Members of the Jury, when you retire to deliberate, you will take with you for your consideration two forms of verdicts, one of which it will be your duty to approve under the law and the evidence. One of those forms reads as follows: ‘We, the Jury, find the defendant, Edward Walton, Jr., guilty of Murder in the First Degree, and fix Ms punishment at death in the electric chair. ’ In the event you return that verdict, the punishment is death in the electric chair, as it explains itself.
“Another form of verdict will be: ‘We, the Jury, find the defendant, Edward Walton, Jr., guilty of Murder in the First Degree and fix his punishment at life imprisonment. ’ That form also is self explanatory . . . ”

The jury received the verdict forms and retired for their deliberation. Later, on the same day, the jury returned into court a verdict finding the defendant guilty of Murder in the First Degree, fixed his punishment at death in the electric chair, and the court entered judgment in accordance therewith. From such verdict and judgment comes this appeal.

The brief and argument filed on behalf of appellant is as follows:

“Appellant, Edward Walton, Jr., a Negro, was convicted of the murder of Roy T. Hallman, 61 year old white man, and sentenced to death.
“Appellant entered a plea of guilty.
“Point of Reliance for Reversal:
“Appellant contends that the judgment of the Court wherein the sentence of death in the electric chair was imposed is too harsh and severe.
“Appellant voluntarily entered a plea of guilty to the charge of murder in the first degree. The death sentence was imposed. Appellant’s counsel made a futile effort to win for him a sentence of life imprisonment.
“Appellant, enjoying the benefit of Arkansas law, now rests his fate in the hands of this Honorable Court, whose duty it is under law to examine all matters pertaining to the trial.
“Appellant, while believing that a fair trial was accorded him for an unnecessary killing, prays the Court to invoke the Divine law, and commute the sentence of death to life imprisonment.
“Respectfully submitted,
(s) W. Harold Flowers,
Attorney for Appellant.”

After a careful review of the record we cannot escape the conclusion that a brutal murder has been committed by appellant, therefore we find no merit in the lone point relied on for reversal. Appellant raised only two objections in the entire trial. The first was sustained and the second contained no merit. There was no motion for a new trial. The verdict and judgment not only should, but would be affirmed except for our obligation to examine the record for error on its face.

On December 17, 1838, shortly after the admission of this state into the Union, an act was passed, which has since been unchanged, and now appears as § 43-2152, Ark. Stats. It reads as follows:

“The jury shall, in all cases of murder, on conviction of the accused, find by their verdict whether he be guilty of murder in the first or second degree; but if the accused confess his guilt, the court shall impanel a jury and examine testimony, and the degree or crime shall be found by such jury. ’ ’

It was under the authority of this statute that the court attempted to proceed in this case. At the conclusion of the evidence offered by the State, there being no evidence for the defendant, the court charged and instructed the jury as heretofore quoted. From such charge and instruction the jury was precluded from determining, finding or ascertaining the degree of the murder. The charge and instructions left the jury no choice but to find the appellant guilty of first degree murder. The jury was told: “You will consider then, only the extent of punishment — death or life imprisonment.” In Porter v. State, 57 Ark. 267, 21 S. W. 467, Chief Justice Cockrill, speaking for the Court, said: “The object of the statute was to make sure that the accused should not be subjected to capital punishment unless the jury specially find that he is guilty of the first degree of murder.” The Court restated this rule in Lancaster v. State, 71 Ark. 100, 71 S. W. 251 as follows: “The statute, it will be seen, requires that there should be a special finding of the degree of murder by a jury, even though the defendant confesses his guilt. ’ ’

And Justice Hart, speaking for the Court in Banks v. State, 143 Ark. 154, 219 S. W. 1015, said: “The statute expressly requires the jury to ascertain the degree in all eases of murder.” Also see: Thompson v. State, 26 Ark. 323; Allen v. State, 26 Ark. 333; Trammell v. State, 26 Ark. 534; Neville v. State, 26 Ark. 614; Simpson v. State, 56 Ark. 8, 19 S. W. 99; Porter v. State, 57 Ark. 267, 21 S. W. 467; Carpenter v. State, 58 Ark. 233, 24 S. W. 247; Carpenter v. State, 62 Ark. 286, 36 S. W. 900; Hembree v. State, 68 Ark. 621, 58 S. W. 350; Clark v. State, 169 Ark. 717, 276 S. W. 849; Wells v. State, 193 Ark. 1092, 104 S. W. 2d 451; Jones v. State, 204 Ark. 61, 161 S. W. 2d 173; and for a case almost on all fours with, the case at bar see: Ray v. State, 194 Ark. 1155, 109 S. W. 2d 954.

In the Ray case, supra, which opinion was not officially reported in the Arkansas reports, which within itself is an indication of how thoroughly the question is considered settled by this Court, the Court said:

“The appellant relies on section 3205, Crawford & Moses’ Digest, section 4041, Pope’s Digest (§ 43-2152 Ark. Stats.) as construed and applied by this court and especially in the recent case of Wells v. State, [193 Ark. 1092,] 104 S. W. (2d) 451. Appellee calls attention to the difference between the verdict returned in the Wells Case and that in the instant case. In the Wells case, the verdict was, ‘We, the jury, find the defendant guilty and fix his punishment at death, ’ whereas, in the case at bar, the verdict is, ‘We, the Jury, find the defendant, Hollis Bay, guilty of murder in the first degree as charged in the information and fix his punishment at death by electrocution. ’

“In the Wells case, this court held the verdict was so defective as to call for a reversal. In the case at bar, however, it is pointed out that the verdict does not contain the defect of that considered in the Wells case. We went further than that. In that case, as in this, the trial court charged the jury, in effect — although not in positive terms — to find the defendant guilty of murder in the first degree and left for its consideration only the extent of the punishment to be inflicted. We held that the direction of the trial court in that case was error, and, while the case was reversed because of error in the instruction and defectiveness of the verdict, it is clearly indicated that either was sufficient to demand a reversal.

In all of the cases citing the section of the law above quoted, its provisions have been uniformly held to be mandatory. We may not ignore the statute by saying that it is technical or highly technical. Its terms are imperative and have become a fixed part of our criminal jurisprudence. It is the duty of courts to enforce legislative provisions when the legislature acts within constitutional limits; and a departure by the courts from imperative rules established by the legislature for the protection of all in order to meet the exigencies of particular cases is an evil not to be thought of, let alone to be acted upon. It matters not that the errors in the instructions and charge have not been raised by appellant on appeal; Hembree v. State, supra, Wells v. State, supra; or that appellant in his brief concedes that he was accorded a fair trial; the judgment, for the errors indicated, must be reversed and the cause remanded for a new trial.


author: Carleton Harris, Chief Justice.

text:
    Talley v. Morphis.
    5-2040
    334 S. W. 2d 652
    Opinion delivered April 25, 1960.

      Ras Priest, for appellant.

      Parker <& Mobley, Wright, Harrison, Lindsey & Upton, and Pickens, Pickens & Boyce, for appellee.
   Carleton Harris, Chief Justice.

On March 17, 1959, appellant, E. E. Talley, a resident of Jackson County, Arkansas, instituted suit against J. H. Morphis and Frank Anderson, in the Circuit Court of that county, for alleged injuries suffered, and damages sustained in Jackson County when Talley’s automobile was struck by a freight truck owned by Morphis, and driven by Anderson, both residents of Pope County. Morphis and Anderson filed an answer denying any negligence, and further stated that “the damages, if any, sustained by the plaintiff, were caused by the unlawful and negligent acts of the plaintiff, E. E. Talley, and George Davis.” Davis, a neighbor of Talley, had used his truck to push Talley’s car, which would not start, from the latter’s yard out onto the pavement of the highway, and for a short distance thereafter. A counterclaim was filed wherein Morphis sought recovery for damages to his tractor, trailer, and cargo of potatoes, and Anderson sought judgment for personal injuries. Thereafter, on April 22nd, Morphis and Anderson instituted suit in the Circuit Court of Pope County against Davis, and obtained service on Davis the following day; on May 22nd, appellant filed a motion to make Davis a third party defendant in the Jackson County suit. Appellees, Morphis and Anderson, replied to the motion, asserting that because of the action instituted against Davis in Pope County, the Circuit Court of Jackson County was without jurisdiction to make Davis a third party defendant. The court granted the motion, and Talley filed his third party complaint against Davis, setting out the allegations of negligence, contended by Morphis and Anderson in their suit against Davis in the Pope Circuit Court. The prayer was “that plaintiff have judgment against the defendants, J. H. Morphis and Frank Anderson, as prayed in his original complaint. In the alternative, plaintiff prays that he have judgment against the defendants, J. H. Morphis and Frank Anderson, and against the third party defendant, George L. Davis, in the sum of $25,000 damages, if it should he found that the third party defendant, George L. Davis, so negligently operated his truck as to prevent the defendant, Frank Anderson, the driver of the tractor trailer of the defendant, J. H. Morphis, from avoiding collision with plaintiff’s automobile by steering said tractor trailer to the right and the rear of plaintiff’s automobile. As a second alternative, plaintiff prays that the proportion and extent of contribution as between the plaintiff and the third party defendant, George L. Davis, be determined by the court, if it should be found that the collision here in controversy, was the result of the concurrent negligence of the plaintiff and of the third party defendant, George L. Davis, and not the result of the negligence of Frank Anderson, the driver of the tractor trailer, belonging to defendant, J. H. Morphis.” After the court had refused a motion by Morphis and Anderson to vacate its order of May 22nd, they, reserving their rights relative to the jurisdiction of the court to make Davis a third party defendant, filed their third party complaint against Davis, alleging the same concurrent negligence on the party of Talley and Davis, as previously alleged in their counterclaim against Talley. Davis denied any negligence, and on June 9th, the cause went to trial. The court directed a verdict in favor of the third party defendant, Davis, and the jury returned a verdict finding that Talley should be charged with 66 2/3% of the total negligence resulting in the collision, and appellees, Morphis and Anderson, should be charged with 33 1/3%. The jury found no damages were sustained by Talley or Anderson, but found that Morphis was damaged in the amount of $8,666. On June 19th, judgment was entered in favor of appellee Morphis, against appellant Talley, in the sum of $5,777.32. From such judgment, Talley brings this appeal, and Morphis and Anderson have cross-appealed.

In contending for reversal, appellant lists several points, but all relate to, and are included in, the contention that there was insufficient evidence to support the jury verdict.

Talley’s version of the collision was as follows: On the morning of December 12, 1958, he started to town. His car would not start, and he asked his neighbor, G-eorge Davis, to give him a push, the latter complying with the request. Talley stated that he drove up the highway about three hundred yards, looked in his rear-view mirror, and saw a truck coming, but it was some distance back. He testified that he put out his hand and signaled a left turn, holding the hand out for a hundred feet or better before proceeding to start the turn; he heard no horn from any approaching vehicle. “Just as my wheels got off the slab, something hit me, and I went out, and I never knowed no more. ’ ’ Talley then detailed his injuries.

Davis testified that he pushed Talley for seventy or seventy-five feet on the highway before the latter’s car started. According to the witness, Talley traveled about two-tenths of a mile before making a signal for a left turn. Davis, about fifty yards behind Talley, stated that he put on his brakes, slowing his car to permit Talley to get out of the way. “About that time, the truck pulled beside me and blew his horn. Well, when he blew his horn, Mr. Talley, I seen Mr. Talley was already in the turn. I seen there was going to be an accident.” He first testified that Talley gave a turning signal about one hundred sixty feet before reaching the point of the collision, although on cross-examination he stated, “Well, he could have held it out 100 feet or he could have held it out five feet, but he held it out long enough that I could see he was going to make a left hand turn. ’ ’

Anderson testified that he saw Talley and Davis enter the highway, being from three-tenths to four-tenths of a mile from them at the time . . . that he (Anderson) was driving at approximately fifty miles per hour . . . that he sounded his horn as he came up to Davis, who was about fifteen feet back of Talley . . . that he did not see Talley give any signal for a turn . . . that after the collision he asked Davis if he saw Talley give any signal, and Davis replied, “I don’t know, I knew he was going to turn.”

Appellees contended at the trial that Talley was hard of hearing, and appellant admitted this to be true; they also contended that his eye-sight was not good. Talley, who was not wearing glasses at the time of the collision, stated that ten or fifteen years back he wore glasses, but was not presently using them. “Do you still have some glasses ? A. No, sir, I have not, I broke my glasses. Q. But you used to wear them before you broke them? A. Oh, several years ago, but I lost them and never did get no more so I just went right on. Q. You do not have any glasses with you now in your back pocket? A. They are no good. They are broke. Q. But you do have some in your back pocket? A. Yes, sir, but they’re no good. Q. But you didn’t have those on, or any other glasses on, at the time of the accident? A. No, sir.” Appellant testified that after first observing the truck through the mirror, he ‘ ‘ didn’t look back anymore.” On cross-examination, he was less positive about giving the signal for the turn a hundred feet back, and admitted that he could have been closer to the point of the collision.

As was stated in Hot Springs Street Railway Company v. Hill, 198 Ark. 319, 128 S. W. 2d 369:

“In determining the sufficiency of the evidence to support a verdict, the Supreme Court views it with every reasonable inference arising therefrom in the light most favorable to the appellee, and if there be any substantial evidence to support the verdict, it will not be disturbed on appeal.”

In Alexander v. Botkins, 231 Ark. 373, 329 S. W. 2d 530, we said:

“Accordingly, though appellants presented evidence which, if believed by the jury, would have justified a verdict for them, we are here only concerned with whether the evidence offered by appellee was of a substantial nature, sufficient to support a finding that the collision was the result of negligence on the part of Mrs. Alexander, rather than the result of negligent acts on the part of Johnny Botkins.”

That same language is most pertinent here, for certainly there was sufficient evidence, if believed by the jury, to justify a verdict for appellant. On the other hand, the jury could have found that Mr. Talley did not signal a turn, or, could have believed, from the evidence, that even though his signal was given, it was not given in conformity with the statute, which provides that “A signal of intention to turn right or left shall be given continuously during not less than the last one hundred feet traveled by the vehicle before turning.” Here, Talley admitted that the signal might not have been given for that distance. Appellant likewise admitted that he did not again look through the mirror to ascertain the whereabouts of the truck after first seeing it, at which time “it was a good piece down the road”; the jury could have found that Anderson blew his horn (which was also testified to by Davis), but that Talley, because of deafness, did not hear it. Any, or all, of these conclusions could have been reached by the jury, from which they found the negligence upon which their verdict was based. We conclude that the testimony was sufficient to support the findings of the jury.

The cross appeal relates to the action of the court in permitting Talley to bring in Davis as a third party defendant, it being contended that this was error. Our statutory provisions relative to venue are found in §§ 27-610 and 27-611, Ark. Stats. (1947) Anno. Appellees assert that, under our holdings involving the interpretation of these sections, where several parties are involved in an automobile collision, and actions are brought in more than one county having venue, the one first acquiring service of summons on his adversary has the right to litigate his claim or portion of the lawsuit in the jurisdiction or venue of his choice. We have so held. See Kornegay v. Auten, Judge on Exchange, and Melton, Administrator v. Auten, Judge on Exchange, 203 Ark. 687, 158 S. W. 2d 473. The circumstances, however, in this litigation, present an unusual question, not previously passed upon, for § 34-1007 provides, inter alia:

“Before answering, a defendant seeking contribution in a tort action may move ex parte or, after answering, on notice to the plaintiff, for leave as a third-party plaintiff to serve a summons and complaint upon a person not a party to the action who is or may be liable as a joint tortfeasor to him or to the plaintiff for all or part of the plaintiff’s claim against him. If the motion is granted and the summons and complaint are served, the person so served, hereinafter called the third-party defendant, shall make his defense to the complaint of the plaintiff and to the third-party complaint in the same manner as defenses are made by an original defendant to an original complaint. The third-party defendant may assert any defenses which the third-party plaintiff has to the plaintiff’s claim. The plaintiff shall amend his pleadings to assert against the third-party defendant any claim which the plaintiff might have asserted against the third-party defendant had he been joined originally as a defendant. The third-party defendant is bound by the adjudication of the third-party plaintiff’s liability to the plaintiff as well as of his own liability to the plaintiff and to the third-party plaintiff. A third-party defendant may proceed under this section against any person not a party to the action who is or may be liable as a joint tortfeasor to him or to the third-party plaintiff for all or part of the claim made in the action against the third-party defendant.
(2) When a counterclaim is asserted against a plaintiff he may cause a third-party to be brought in under circumstances which under this section would entitle a defendant to do so.”

Talley, of course, sought to file his third-party complaint under paragraph (2). Considering the statutes, here under discussion, separately, it would appear that both appellant and appellees proceeded in accordance with statutory provisions; obviously, however, this cannot be done in the instant case, for a conflict arises.

Upon, consideration, we have reached the conclusion that there are additional facts present in this litigation, which preclude a clear determination of which statute (venue, or third-party practice under uniform contribution among tort-feasors act) pre-empts the other when conflicts arise. Here, appellant had filed his complaint against appellees only. If, in filing their counterclaim, appellee had sought recovery against Talley solely because of his negligence, and Talley had then endeavored to bring in Davis as a third-party defendant — the question, heretofore posed, would be squarely before the Court. However, appellees alleged the sole proximate cause of the collision to be “the joint and concurrent negligence of E. E. Talley and George Davis. ’ ’ Accordingly, alleged negligence on the part of Davis was first averred by appellees, even though they sought no judgment against him in the Jackson Circuit Court. Also, suit was not instituted in Pope County by appellees until after the counterclaim had been filed against Talley in Jackson County. This suggestion of liability on the part of Davis by appellees undoubtedly precipitated Talley’s motion to make Davis a party. We think, under those circumstances, it was within the sound discretion of the court to grant the motion. See Rudolph v. Mundy, 226 Ark. 95, 288 S. W. 2d 602. The error, if any (and we do not say it was error), though it cannot be strictly and technically classed as invited error, was certainly closely akin in principle, for appellant’s motion, not only was likely initiated because of appellees’ pleadings, but the logic of making Davis a defendant was supported by appellees’ allegations.

Finding no error, the judgment of the court, both on direct and cross appeal, is affirmed.

       Interventions were filed by three insurance companies who had issued policies covering damages to the tractor, trailer, and load of potatoes, caused through collision, seeking subrogation in event of recovery by Morphis.

       Paragraph B, § 75-618, Ark. Stats. Anno.


author: J. Seaborn Holt, Associate Justice.

text:
    McCullough v. Leftwich.
    5-2130
    334 S. W. 2d 707
    Opinion delivered April 25, 1960.

      J. H. Evans, for appellant.

      R. S. Dunn, for appellee.
   J. Seaborn Holt, Associate Justice.

This is a suit by appellees seeking reformation of a deed. The lower court granted the relief which appellees sought and this appeal followed.

On February 14, 1944, C. E. Mills (now deceased) and the appellant, David É. McCullough, entered into a written contract for the purchase of 480 acres of land in Logan County. This contract provided that McCullough was to pay Mills for the land over a period of years in installments, and that a clear title to the land would be delivered to McCullough by Mills upon receipt of the last installment subject, however, to the following reservation in the contract of the mineral rights in all of the 480 acres of land: “It is agreed and understood by all parties concerned that all oil, gas or/and mineral rights are reserved in, on and under the land described in this contract, and no oil, gas or mineral rights go to the party of 2nd part herein. ’ ’ McCullough was the second party referred to. Before all payments under the contract were completed, Mills died and his wife, acting as the personal representative of his estate, petitioned the probate court for permission to carry out the terms of her husband’s contract with McCullough and deliver title to McCullough upon receipt of all payments. The court granted this petition and on August 11, 1951, a deed was given by the personal representative, joined in by the heirs at law of the deceased, Mills, giving the appellant, McCullough, surface title to all the land and also mineral rights to the 80 acres now in dispute. In June of 1956, McCullough conveyed the surface rights to the 480 acre tract and reserved the mineral rights in this 80 acres to himself. On January 28,1958, the appellees, heirs at law of C. E. Mills, Sr. and Maude Mills, both deceased, filed suit against McCullough to reform their deed of August 11,1951, alleging that the 80 acres of mineral rights were conveyed to McCullough through mistake. The trial court granted appellees this relief and this appeal followed.

For reversal, appellant relies on the following points: “ (1) The findings, conclusions and decree of the trial court were not supported by substantial evidence and on the case as a whole the appellees failed to prove they were entitled to the relief sought by clear and convincing evidence (2) The trial court erred in permitting appellees to introduce additional evidence after the filing of appellant’s motion to dismiss because of insufficiency of the evidence (3) The trial court erred in failing to sustain appellant’s motion to dismiss at the time it was filed (4) The trial court erred in overruling appellant’s motion to dismiss after allowing appellees to introduce additional testimony.”

Appellant’s principal contention is that the appellees failed to meet by clear and convincing evidence the burden of proof that a mutual mistake had occurred. A review of the record presented discloses the following facts: Mrs. Callahan, a long-time secretary of Mr. C. E. Mills, testified that she drew the original contract between C. E. Mills and David R. McCullough to execute the deed and that the copy attached to the petition of appellees was a true and correct copy of the original contract, which, as above indicated, reserved the mineral rights in the 480 acres of land. Mrs. Phillips, the deputy circuit clerk, testified that a copy of the probate proceedings, above referred to, was true and correct. This order of the probate court, approving execution of the deed to Mr. McCullough, contained a specific reservation of the mineral rights, and gave authority to the administratrix to convey only the surface rights of the 480 acres. The reservation was as follows: “That on the 14th day of February, 1944, the decedent, C. E. Mills, did enter into a sales contract with the said David E. McCullough to sell and convey unto the said David E. McCullough the lands herein above described, except all oil, gas or/and mineral rights were reserved in on and under said lands, no oil, gas and or any mineral right to be conveyed to party of the second part, David E. McCullough. ’ ’

There was in evidence a letter, dated December 11, 1957, written by McCullough to C. E. Mills, Jr., stating that he was under the impression that the Missouri Pacific Eailroad had reserved all the mineral rights on the 480 acres because he, McCullough, had in his possession a letter written by Mr. Mills (C. E. Sr.,) on January 26, 1944, to that effect. This letter recites, in part — “On Jan. 26th, 1944,1 have a letter from your father written to Tonopah, Nev. where I was running sheep at the time to the effect that the land involved of 480 acres was acquired from the Missouri Pacific Eailroad Co. and they reserved the Oil, Gas and mineral rights on this 480 acres. ’ ’ There was other testimony that the Mills heirs, appellees, have been claiming and paying taxes on the mineral rights in this 80 acres at all times since the purported conveyance by them. Francis H. Leftwich testified that the Mills heirs have been leasing this 80 acres and drawing royalty checks from the Gulf Oil Company since 1956 and that the Mills heirs have assessed and paid taxes on it. Mrs. Norma L. Leftwich testified that she is the daughter of C. E. Mills, deceased, and prior to his death and after she was familiar with the land transactions ; that she worked in his office after his death and was acquainted with the above contract between her father and McCullough: “Q. Do you recall, I will ask you to examine that instrument and state to the court if you signed it? A. Yes, sir, I did. Q. Was it or was it not the intention of your mother and of the C. E. Mills children to convey any of the mineral rights in that deed or to reserve them? A. We meant to reserve them. Q. Under how many acres? A. 80 acres. Q. There is an error in the deed if it conveys 80 acres of mineral rights to Mr. McCullough? A. Yes, sir.”

We have concluded, after reading the entire record, that the testimony set out above was sufficient to sustain the heavy burden on appellees to prove by clear and convincing evidence that a mutual mistake occurred and that the court correctly granted appellees the relief prayed. See Black v. Been, 230 Ark. 526, 323 S. W. 2d 545.

(2-3-4)

Appellant’s contentions two, three and four, which we consider together, are without merit. We hold that the court did not err in allowing appellees to introduce additional evidence following appellant’s motion to dismiss because of insufficiency of the evidence. This action of the court was clearly a matter within its sound discretion and unless abused, does not constitute error. We find no abuse of this discretion on the record before us. In Oak Leaf Mill Company v. Cooper, 103 Ark. 79, 146 S. W. 130, we held: “Where the plaintiff closed his case, whereupon defendant moved for a peremptory instruction to find in its favor, it was not an abuse of discretion for the court to permit the plaintiff thereafter to introduce other testimony in order to develop his case further.” The text writer in 88 C. J. S. Trial § 105, p. 220 announces the rule in this language: “It is within the discretion of the court whether or not to admit further evidence after the party offering the evidence has rested, and this discretion will not be reviewed except where it has clearly been abused.”

On the whole ease, finding no error, the decree is affirmed.