author:
Stephenson, J.
      Gregu, J.,

text:
    FLOYD v. GILBREATH et al.
    Illegal Taxes — By what courts and remedies, relieved against it, etc. — On bill by plaintiffs, who sue for themselves and all other tax-payors of Scott county, alleging that certain taxes were illegally levied, praying that the collector be enjoined from the collection of the same, the court granted a restraining order. After appearance of parties, on demurrer, the injunction was made perpetual: Held,

    1st. That the Circuit Courts of this State, under the present Constitution, though creatures of the Legislature, have the same jurisdiction that they possessed prior to its adoption, and they arc clothed with all the powers conferred upon them by the Constitution of 1836.
    2d. "While the present revenue law provides the manner in which a party aggrieved may apply to have the appraisement or fhe-vahiation of his property corrected, there is no provision to correct an illegal or erroneous levy by the County Court and, in such case, ho must look to the superintending control and appellate jurisdiction of the Circuit Courts over the County Courts, and where no remedy by appeal is provided by the act, he would be entitled to relief by certiorari or prohibition; and under' these writs, the Circuit Court may revise the proceedings of the County Court, and if, from the record, it appears that the County Court has proceeded in a matter outside of, or in excess of its jurisdiction, the proceedings may be stayed or quashed, by prohibition, to the extent of the illegality, or quashed as to the whole, on certiorari. ' '

    3d. Where it is desired to correct an error which exists de hors the record, as whore the levy, on the face of the proceedings to impose it, is a valid lion on land, and extrinsic evidence is required to show its invalidity, neither the writ of certiorari or prohibition are of any value, and, in such a case, a court of equity will interfere to prevent a multiplicity of suits, irreparable injury or a cloud upon title to real estate.
    4th. Where the error or illegality appears of record, and the tax-payor does not 'choose to avail himself of his remedy by certiorari or prohibition to prevent the evil, he may have his action of trespass against the officer of his property; and replevin will also lie to recover personal property seized or sold, in whosesoever hands it may be. Or where the proceedings imposing the tax are regular on their face and the tax is paid under protest to avoid sale, the party may have his action to recover the money so paid.
    8th. Where the proceedings are void upon their face, they form no cloud upon title and no ground of interference by a court of equity, and if they are not void upon their face, but merely voidable or irregular, a court of equity will not take cognizance of them, unless facts are alleged sufficient to bring the matter within some acknowledged head of equitable jurisdiction.

      APPEAL FROM SCOTT CIRCUIT COURT.
    Hon. J. II. Rogers, Special Circuit Judge.

      A. II. Garland, for Appellant.
    The whole tlicoTy of our Constitution, and the revenue laws under it, as to taxes, etc., is to place the subject entirely at the control of the County Court. Every body having cause of complaint, as to assessment and collection of taxes, has his day in this court, subject to appeal, etc., but there is no jurisdiction in equity to enjoin the collection of taxes there-assessed. See argument and decision in case of Nickels vs. Witherspoon, decided at the last term, and Clayton vs. Laf argue, 28 Ark., 187, and cases there cited. And no such special facts-as would take this case out of the rule, are averred here — such as fraud,- collusion, mistake, etc. — especially as complainants do not aver they made any effort to correct the matter complained of in the court having jurisdiction of the whole matter. Navis vs. City of Chicago, 11 Wall., 108, and cases cited: 5 Id., 74, 413; 18 Ark., 381. And there is no such averment here as to immediate action and irreparable damage as would give equity jurisdiction. 11 Wall, sup.; 5 Id. sup.; Jovcsrs. City, 25 Ark., 301.

      B. T. Nu Vid, for Appellees.
   Stephenson, J.

— This was a bill to enjoin the collection of certain taxes in Scott county. The bill was -presented to the judge of the Circuit Court, in vacation, who granted a temporary restraining order. At the regular April term, 1872, of the Scott county Circuit Court, both parties appeared, when the bill was amended and the defendant interposed a general demurrer to it, which was overruled by the special judge sitting, and further time to answer being refused, because the court was about to adjourn, the injunction was made perpetual and the defendant appealed.

The plaintiffs, who sue for themselves and all other taxpayers of Scott county, allege that they are severally owners of property subject to taxation. That by an act of the-Legislature, approved March 27, 1871, in section 146, it is enacted “ that it shall be unlawful for the County Court of any county in this State, unless especially and expressly authorized by some act of the General Assembly, to levy on the taxable property of such county, in any one year, a greater rate per ■centum than is hereinafter authorized, to-wit: For all ordiuary county expenses, not exceeding five mills on the dollar; for road purposes, not exceeding one mill on the dollar ; for bridge purposes, not exceeding one mill, on the dollar; for support of the poor, not exceeding one millón the dollar; for the erection or repairing of public buildings, not exceeding two and one-half mills on the dollar; for the payment of the interest on the public debt of such county, or the payment of such funded debt or parts thereof as may fall due, with the then current or next succeeding year,.such amount as may be actually necessary,” etc., etc.; and in and by section 88 of said •act, in the proviso of said section, it is enacted “That the •collector of each county shall receive county warrants in payment of county taxes; the orders or warrants that may bo payable upon presentation of any township, town or city, for their respective taxes.” That, at a special term of the County Court, on the 6th day of October, 1871, it being the time fixed by law.for holding said special term, the court levied, the county’tax for the year 1871, as follows: one half of one per cent, for county purposes; one-half of one per cent, for special tax for officers’ fees in par funds; one fourth of one per cent, for direct tax for repairing jail; also, one fourth of one per cent, for a court house tax, etc., etc.” That so much of said order as provides for the levy of one half of one per cent, for special tax for officers’ fees in par funds, is in conflict with the provisions of the act aforesaid; and all that portion of said order levying a tax of two and one half mills for repairing the jail, and one fourth of one per cent for a courthouse tax is illegal and contrary to law. That there is no special or general act, of the Legislature, which authorized the County Court to levy the taxes aforesaid; and that the order of the court is illegal, oppressive and void.- That defendant, Floyd, threatens, and unless restrained, will proceed to collect and distress the property of plaintiffs, for the collection of said illegal taxes,

Prayer of the bill, that the defendant be restrained from the collection of said illegal tax.

It appears, from the amendments to the bill, that the plaintiffs do not resist the collection of that portion of the levy, which comes within the provisions of the law; and, from the fact, that only that portion which is alleged to be illegal is embraced in the restraining order, it is presumed that the remainder of the levy was paid. They also aver that, under our present system of practice, they have no remedy save in equity. The defendant, Floyd, interposed three causes of demurrer as follows:

First. That the court had no jurisdiction of the person of the defendant or the subject.matter of the action.

Second. That there is a defect of parties, plaintiffs and defendant.

Third. That the complaint does not state facts sufficient to constitute a cause of,action, in chancery.

The first and third causes will be considered together:

Firsj. Of the ability of a Court of Chancery to interpose for -relief against the collection of an illegal tax.

The demurrer confesses the illegality of the tax, but we do not have to take this technical method to settle that fact. The records of the County Court are made exhibits to the bill, and they clearly show that the court levied a tax wholly unauthorized by law. The right to tax is an attribute of sovereignty, and the mode of its imposition and collection must emanate from the Legislature, and must be strictly pursued. No property can be taxed without this special grant of power, and if the particular amount and purposes are designated in the act, these provisions must be strictly complied with. An examination of the law, under which the tax complained of was levied, shows conclusively that the County Court had no authority whatever to levy such tax, and consequently their acts, to that extent, at least, are void.

"Wh at then is the relief afforded, by our system of judi cature, to the citizen, for this threatened invasion of his rights ? That it is an injury of a-charaeter that relief should be granted, at the hands of some legal trilnmal, wo will assume at the outset. These appellants, by their demurrer, admit the illegality of the tax, but insist that relief cannot be had in a Court of Chancery. As before intimated, relief should be granted; and, upon the theory that if the appellees cannot have it at law, they arc entitled to be heard in Chancery, we will at once proceed to the consideration of the case.

In order to arrive at a satisfactory solution of the questions presented in this case, we deem it necessary to go somewhat at length into the examination of our judicial system, to ascertain clearly the boundaries between the law and Chancery Courts; to observe what, if any, changes have been made in either, by the Legislature, which affect this question.

Sec. (>., Art. 6 of the Constitution of 1836, is as follows : “Until the General. Assembly shall deem it expedient to establish Courts of Chancojy, the Circuit Courts shall have jurisdiction in matters of equity, subject to appeal to the Supreme Court, in such manner as may be prescribed by law.”

The Legislature, pursuant to this clause of the Constitution, enacted the following law. “The Circuit Court shall exercise Chancery jurisdiction, in this State, in all cases where adequate relief cannot be had at law, and shall, in all things, have power to proceed therein according to the rules, usages and practice of Courts of Chancery, except when it may be otherwise provided by law,” etc.

The article of the Constitution, and the act quoted above, have received judicial interpretation at the hands of this court. In Hempstead vs. Watkins, 6 Ark., 317, it was held that “this section introduces no new rule, but it is only declaratory of tlie jurisdiction, of Courts of Chancery as it stood before its enactment, and our Circuit Courts have jurisdiction over the same subjects as are common to a Court of Chancery, to be exercised according to the known rules of chancery as understood at the time of its passage. Sec. 6, Art. 6, Const, of Ark., provides that the Circuit Courts shall have jurisdiction in matters of equity until the General Assembly shall establish Courts of Chancery; by which is meant such jurisdiction as a Court of Chancery could properly exercise sit the time of the adoption of the Constitution.

Having thus determined the jurisdiction of Ohauoery Courts, as defined by «institutional grants and legislative enactment, they proceed to make the following deductions:

“Where a defense is purely legal and exclusively cognizable in a court of law, the party is bound to defpnd at law, and cannot have relief in chancery, unless he was dopiived of his defense at law, by sui’prise, accident or mistake, or fraud of the opposite party, unmixed with negligence on 1ns part, or he was'ignorant of important facts material to his defense upon the trial at law. When the jurisdiction of Courts of Chancery and courts of common law is concurrent in consequence of coui’ts of common law having enlarged their jurisdiction by their own acts, or its having been enlarged by the Legislature, ■without prohibitory words, the party may make his election as to his forum/''

In Andrews vs. Fenter, 1 Ark., 186, this court held that “where the remedy is plain, adequate a]id complete at law, and the party seeking relief fails to make his defense there, through ignorance or neglect, he will not be relieved in equity; but equity will émbrace all eases of legal rights under peculiar equitable circumstances, whore there does not exist a plain, adequate and complete remedy at law.” See, also, Block vs. Bowman, 9 Ark., 501.

It will be found, upon investigation, that the jurisdiction of the Chancery Courts have come down to us through all the changes of Constitutions and statutes, singularly free from change, and remains to-day the same, in all its essential features, as at the adoption of the Constitution of 1836. Hence, the rule of decision adopted in the cases cited are of binding effect upon us. We but affirm the former decisions of this court, and reiterate a principle of chancery-jurisdiction, old as that court, that where the applicant for relief, by bill in chancery, has a plain, adequate and complete remedy at law, he will be remanded to that court, and if he fail to negative this proposition by such statement of facts as will enable the court to see clearly its jurisdiction, or present some one of the reasons which will excuse him for not pursuing his remedy at law, his bill is deinnrrable. This he may do "by .showing that he is remediless at law, or, if a remedy exists, that' it is not plain, adequate and complete, or is so doubtful in its character as that a reliance upon it might seriously prejudice his rights, or that he has been deprived of his remedy by surprise, accident or mistake, or the fraud of the opposite party, unmixed by negligence on 1ns paid, or that he was ignorant of important facts at the trial.

The appellees complain, in their bill, that the County Court of Scott county levied an excessive and illegal tax on their property, prohibited, in terms, by the very act under which they assume to make the levy, and, on the ground of this illegal proceeding, they seek to have the collection thereof enjoined.

We might, perhaps, content ourselves with the simple inquiry if a legal remedy exists, and if so, whether the appellees have brought themselves within the rule as laid down above, but' the gravity of the consequences of such procedure, on the part of the County Court, to the rights of the citizens and tax payers of the State, has induced us to look further and ascertain what remedies exist, at law, for the evil complained of, and their sufficiency to afford complete relief.

The Constitution of 1836, Sec. 5, Art. 6, provides that the Circuit Courts shall exercise a superintending control over the County Coilrts, and over justices of the peace in each county in their respective circuits, and shall have power to issue all necessary writs to carry into effect their general and specific powers. Although, h'y our present Constitution, Circuit Courts are mere creatures of the Legislature, their jurisdiction remains the same as prior to its adoption until otherwise provided by the Legislature: Art. 7, See. 5 Const,. 1868.

Until the Legislature restricts it, therefore, we hold that the Circuit Courts are clothed with all the powers which were conferred upon them by the Constitution of'1836. Having settled the power of the coui’t to grant relief, lotus examine the remedy afforded.

A provision exists, not only in the law under which this levy was made, but in all the revenue laws of the State heretofore passed by the Legislature, providing the manner in which parties who may feel themselves aggrieved may apply to have the appraisement or valuation of their property corrected, but we are not aware that any special provision has ever been made to correct an illegal or erroneous levy by the County Coxirt. Doubtless the Legislature acted upon the presumption that the court would adhere to the plain and distinct provisions of the law, provided for its government in making the levy; and such a presumption, indulged in its favor, would not seem to be unreasonable, for we hardly expect a functionary, charged with the faithful administration of the law, to be the first to violate it.

This view may seem to militate against the decision in Randle vs. Williams, 18 Ark., 380 This court there held that a proceeding by certiorari to quash a levy based upon an excessive valuation of property was erroneous. It was not'the act of levying of which the party complained, but the act of the officer making the valuation, and the court properly decided that, inasmuch as the law, under which the valuation was made, gave him a specific remedy by appeal to the County Court, he was bound to pursue it; but it does not appear in the act referred to in that case that any remedy is given for - an erroneous levy, and if it was the intention of the court to hold that such a remedy did im’fact exist, by virtue of the act they cite (Gould’s Digest, Chap. 148, Sees. 35-36,) we must decline to follow it. If -we are correct in our conclusions that a party aggrieved by an erroneous levy has no remedy by statute, is he remediless at law, in the absence of such special remedy ? ’We think not.

It was held by this court in Lindsey vs. Lindley, 20 Ark., 581, that the Circuit Court has a superintending control over County Courts, and appellate jurisdiction from their orders; but where no mode was provided by statute for the exercise of that jurisdiction, the proper remedy is by certiorari, and not by appeal. In Marr, ex parte, 12 Ark., 84, is was decided that where an inferior court exceeds its jurisdiction, and its acts thereby are void, the Circuit Court has the power, on a proper showing, to remove the proceedings by certiorari, and quash them. Upon the same principle in Derton vs. Boyd, 21 Ark., 264, it was decided that the Circuit Court has jurisdiction, by writ of certiorari, over the judgment of the Probate Court, when the judgment is irregular, and the party interested has no opportunity to áppeal. In Clayton vs. Lafargue, 23 Ark., 137, it was held, upon a bill involving the legality of a tax, assessed under the Act of 1859, to regulate the construction of levees, upon the ground that the land would not be benofitted by the levee, that the question as to the land being benefitted or not by the levee work, was a fact to be determined by the County Court, and if it erred, the remedy of the owner, if he had any, was by certiorari, and not in equity do enjoin the collection of the tax. This case was decided, doubtless, upon the ground that as the Act imposing upon the County Court the duty of levying the tax, provided no method of appeal, in the absence of such special provision, the party would be entitled to relief by certiorari.

Having, we think, clearly established the fact that a remedy exists at law, for the grievances complained of, in the appellee’s bill, we do not wish to be understood as holding that it is exclusive of the jurisdiction of a Chancery Court; for this. like any other law remedy, must he plain, adequate and complete. It is not the business' of the court to point out the particular facts and circumstances which would-authorize the party aggrieved to bring his bill for relief; each case must necessarily stand upon its own peculiar merits.

It may safely be assumed that there is no court, however plenary its powers, but will be slow to interfere with the col - lection of the revenue of a State or municipal corporations, except upon the clearest showing that its jurisdiction is unquestionable. The reasons, for thi$ rule, are based, upon sound public policy, and are too obvious to need further mention. Yet, where there is a clear infringement of the rights of a citizen, and no adequate remedy is provided at law for his redress, the interposition of the Chancery Court is not only proper but imperative. It must be borne in mind that our investigation, thus far, has been with a view of ascertaining the remedy, while the collection of the tax is in fieri, and we have seen that for an illegal or excessive appraisement, the law provides a specific remedy by appeal to the county board of equalization. Not so, however, where the levy is illegal or erroneous. In such case, as we have seen, his remedy was by certiorari under the old practice to quash the levy. The Code of Civil Practice, section 519, provides a remedy by mandamus, to compel an executive or ministerial officer to do or omit to do an act, the performance or omission of which is enjoined by law, and section 521, also provides a remedy against a judicial officer for proceeding in a matter outside of his jurisdiction.. These Code remedies, however, will be. found to be in no wise more efficacious than that by certiorari. In none of them can the court look beyond the record to cure any irregularities. They prescribe no new remedy, for these, as well as the writ of certiorari, exist at common law, and the remedial powers of the writs, as provided by the Code, are in strict conformity to the common law writs of mandamus and prohibition. The Code neither enlarges or restricts them.

Under the writs of prohibition or certiorari, the court may revise the proceedings of the County Court, and if, by the record, it appears that the court has proceeded in a matter outside of its jurisdiction or in excess of it, the proceedings may be stayed or quashed.

This review of the action of the court may be asked by any one or more of the citizens or tax payers of a county, and if the proceedings are conducted in a manner beyond the powers of a court, they will, where the writ of prohibition is used, be inhibited to the extent of the illegality, or if by certiorari, the whole proceedings maybe quashed, not as it effects the rights of the petitioners nierely, but the whole levy. But when it is desired to correct an error which exists de hors the record, as where the levy, on the face of the proceedings to impose it, is a valid lion 'on land, and extrinsic evidence is required to show its invalidity, neither the writ of certiorari or prohibition are of any value, for as stated before, they can only reach errors which appear of record, and there exists no remedy at law for the prevention of such an evil. It necessarily follows, therefore, in such case, that a court of equity will interpose to prevent a multiplicity of suits, irreparable injury, or .a cloud on the title to real estate; and where the tax is levied on real estate, the chancellor would not require the petitioner for an injunction to do more thaii. allege such facts in his bill as will show that his remedy at law is inadequate to afford relief; for, under the peculiar statutes of our State as to the effect of a tax deed as evidence of title, such an instrument would certainly constitute “a cloud on title to real estate.” More strictness, however, will be required where the levy is upon personal property.

To invoke the aid of chancery to restrain the collection of a tax, regular on its face, it must be shown that irreparable injury or multiplicity of suits will result to the tax payer, a much more difficult matter than to demonstrate the nature and extent of a cloud on title to land.

We have seen that the writs of certiorari and prohibition are the only means by which a threatened distress and sale of property, for an illegal tax, may be prevented, and these remedies are effectual whore the illegality of the tax appears on the face of the proceedings to impose it. Yet there exists other remedies for injuries resulting from the sale of property for taxes.

Where the error or illegality appears of record, and the tax payer docs not choose to avail himself of his remedy by certiorari or prohibition to 'prevent the evil, he may have his action of trespass against the officer for the seizure of his property; and replevin will, also, lie to recover personal property seized or sold, in whosesoever hands it may be. Or, where the proceedings imposing the tax are regular on their face, and the tax be paid under protest,'to avoid sale, he may have his action to recover the money sq paid. Ordinarily the sale of personalty for taxes creates no hardship which cannot be fully compensated in damages by an action of trespass, or to recover back the money if paid under protest, and, as we before said, a Court of Chancery will be slow to grant relief, unless under peculiar and equitable circumstances, which must bo clearly shown.

Wo have examined at some length the authorities of other States as to the circumstances under which the chancellor has interposed to grant relief against excessive and illegal taxation, and although the rule is mot uniform, we have no difficulty in aseei’taining the weight of opinion, where the question is based upon the general powers of a Court of Chancery, unaffected by local statutes.

In the case of Cook County vs. The Chicago, Burlington and Quincy R. R., 35 Ill., 460, which was a case involving the legality of a tax levied on the company’s property, the court say: “Wo have carefully examined the former decisions of this court in regard to the asserted right of bringing a bill in equity to restrain the collection of a tax illegally assessed, and we have been unable to find any decisions asserting equitable jurisdiction in such case without regard to special circumstances;” and in commenting upon those cases where the court had taken jurisdiction, it says that the question of jurisdiction was either not raised or the case presented special equitable circumstances, and concludes as follows: “While we consider it'settlod law that a court of equity will never entertain a bill to restrain the collection of a tax, excepting- incases where the taxis unauthorized by law,'or where it is assessed upon property not subject to taxation, this court has never held that it -would take jurisdiction in such excepted cases, without special circumstances showing that the collection of the tax would be likely to produce irreparable injury or cause a multiplicity of sidts. Ordinarily, a party of whom a tax is illegally collected-lias an ample remedy at law by an action of trespass against the officer collecting it, or by an action of assumpsit to recover back the money paid.” The same rule obtains in Now York. In Haywood vs. The City of Buffalo, 14 N. 17, 534, the court held that while an erroneous or illegal assessment may bo reviewed by the courts by certiorari, the general rule is that a court of equity will not entertain jurisdiction except to prevent a multiplicity of suits, or irreparable injury; or where the assessment, on the face of the proceedings to impose it, is a valid lien on the land, and extrinsic evidence is required to show its invalidity. The doctrine established by the decisr ions is substantially this: 'That if the proceeedings are void upon their face, they form no cloud upon title and no ground of interference by a court of equity; and if they are not void upon their face, but merely voidable or irregular, a court of equity will not take cognizance of them, unless facts are alleged sufficient to bring the matter clearly within some acknowledged head of equity jurisdiction. This is a sound and salutary rule which should be steadily adhered to upon considerations of public interest and convenience, if no other. It is not the business of courts to furnish new remedies to parties aggrieved, even though existing ones are found inadequate to afford perfect protection or redress. That falls more propei-ly within the province of the legislature. But if they had the power they would hesitate before extending their equitable jurisdiction over all the acts of these inferior bodies, and allowing every one assessed to come in and litigate as to the validity of his tax before be should be required to pay it, who could allege some error in making the assessment.

In Dows vs. The City of Chicago, 11 Wallace, 108, which was a bill to restrain the collection of an illegal tax, Mr. 1 usti ce Eiel d said: “ The ill egality of the tax and tl Le threatened sale of the property for its payment, constitute of themselves alone no ground for such interposition. There must .bo some special circumstances attending a threatened injury of this kind, distinguishing it from a common trespass, and bring the case under some recognized head of equity jurisdiction before the remedy of injunction can be invoked. It is upon taxation that the several States chiefly rely to obtain the means to carry on their respective governments, and it is of the utmost importance to all of them that the modes-adopted to enforce the taxes should be interfered with as little as possible; any delay in the proceedings of the officers, upon whom devolves the duty of collecting the taxes, may derange the operations of government and thereby cause serious detriment to the public. No court of equity, therefore, will allow its injunction to issue to restrain their action except where it may be necessary to protect the rights of the citizen whose property is taxed, and he has no adequate-remedy by the ordinary processes of the law. It must appear that the enforcement of the tax would lead to a multiplicity of suits or produce irreparable injury, or where the property is real estate, throw a cloud upon the title of the complainant, before the aid of a court of equity can be invoked.”

The Supreme Court of Connecticut, in Dodd vs. The City of Hartford, 25 Conn., 232, say, that a bill of injunction will not lie to restrain the collection of an illegal tax. If the proceedings are illegal and void, an action at law will lie to-recover all the damages which niay arise from the levy; and the question of the legality of the levy will then be tried in the appropriate forum, a court of law. There are also reasons of public policy, founded on the necessity of the speedy collection of the taxes, which ought to prevent a Court of Chancery from suspending these proceedings, except upon the clearest grounds. Mr. Blackwell, in his Treatise on Tax Titles, 555-568, assumes the contrary of the view taken in the foregoing authorities, basing his theory upon the case of Burnet vs. City of Cincinnati, 3 Ohio R., and asserts that the weight of authority inclines to the position assumed by the court in that case. Wo have thought it proper to investigate the cases in which the opposite view has been taken from that which is assumed in the cases above referred to, and especialy when it is contended by Mr. Blackwell that it is against the weight of authority.

We think a careful examination of Burnet vs. Cincinnati, will show that the court rested its jurisdiction upon one of the well established heads of equity, for the sale of the property w^as enjoined upon the express ground that it would cloud the title to real property, and the doubt as to whether title passed by the sale would so confuse titles to real estate as to-authorize a court of equity to stay the sale where upon examination it was found that the assessment was void. In "Wisconsin the same rule obtains. The court, in Dean vs. City of Madison, 9 Win., 406, referring to Burnet vs, Cincinnati with approbation, adopt' the same reasoning. But it will be seen that relief urns granted in Bean vs. City of Madison, more on account of the inadequate remedy at law than because the title was subject to a' cloud, although the. latter reason was-assigned. Sec. 34, Chap. 84, R. S., of the State of Wisconsin, provides for the bringing of an action by the holder of the legal title to real estate, in possession, against any other-person “ setting up a claim thereto,” and a statute precisely similar existed in Ohio when Burnet rs. Cincinnati was decided.

The existence of these statutory remedies in the States ■whence we derive the decisions upon which Mr. Blackwell rests his theory, very materially weakens their force with us.

It will readily be seen that the legislatures of those States, when they adopted the laws referred to, were attempting to rid themselves of Unit rule in chancery which prevents a party in possession from bringing his bill in the Chancellor's Court, quia timet, before his possession was threatened or disturbed. But, as was said in Dean. vs. City of Madison, the statute was inadequate to give complete relief against the holder of a tax certificate or deed; for to compel a party to lie by until the purchaser at a tax sale had obtained such rights under the sale as to amount to the setting up of an adverse claim, would but amount to a prohibition to the holder of the legal title against taking any steps until the mischief liad been done.

Indeed, it would seem that a Court of Chancery might well interpose for relief against the statute; for in all those cases involving the constitutionality of the law, under which an assessment was made, where its illegality does not appear on the face of the proceedings, the tax payer who desires to test the validity of the tax must imperil his title to do so. Nor would such interposition be a stretch of equitable jurisdiction, for the applicant for relief would not be remitted to a court of law unless, his remedy there was plain, adequate and complete. In Iowa the courts exercise equitable jurisdiction to relieve against an illegal tax. The lo’ading case, Macklot vs. City of Davenport, 17 Iowa, in that State, upon which subsequent decisions in support of equitable jurisdiction rest, is so. clear an exposition of the law that we quote from it at length. The court say: “ The precise question presented in this case has not been determined by the court. The case of Morford vs. Unger, 8 Iowa, 82, decided that an action of replevin might be maintained by a person whose property had been seized to satisfy a tax levied under an unconstitutional law; or, in other words, where there was no authority to levy the tax, a warrant for its collection would not justify an officer in seizing property to satisfy it, and, of course, tlie owner of property seized under such a tax warrant could maintain replevin for it. The case of Morford vs. Unger wan followed in the case of Langworthy vs. The City of Dubuque, 13 Iowa, 86.

In the present case there is no question hut the city of Davenport had jurisdiction and authority to levy a tax upon the property of the plaintiff in the time and manner the tax was levied. It is claimed, however, and so found that the plaintiff was over-assessed. This case is, therefore, one of unjust over-assessment, and is, to the extent of such over-assessment, clearly erroneous. There is, however, a clear distinction between such a case and one of assessment without any authority — -such as an assessment made under an unconstitutional law, or the assessment of property for which the law has made no -provisions for assessing, or has .expressly exempted from taxation. The distinction is the same in ■effect, and just as clear as that between an erroneous judgment of a court having jurisdiction of the person and subject matter, and a court having neither. And to illustrate further, a tax warrant, regular on its face, issued for the collection of a tax, levied under such erroneous assessment, would afford protection to the officer serving it, -while under an unconstitutional law, or without authority of law, would afford no protection whatever-. The remedy afforded by law to a pai’ty whose property is seized to satisfy a tax levied under an unconstitutional law, or levied without authority, under the law to levy, is clear. He may bring replevin for his property-seized to satisfy such tax; or when matters of equitable cognizance are also involved, he may restrain their collection, or he may doubtless make the collector personally liable for ■damages.” And in conclusion the court say: “ There is another view of this case, which, perhaps, under close examination, might be found equally decisive, and that is, that a party would have his remedy at law against the assessor, or the city, for the recovery of any money paid out for taxes 'wrongfully assessed; and having such adequate remedy at law, could not, of course, resort to equity. Yet the court, following this as the leading case on the subject, have held that a bill would he to enjoin a tax, solely on the ground of" its illegality, apparently assuming that position to lie held in this case.”

In Litchfield vs. The County of Polk, 18 Iowa, 72, the court say : “When the plaintiff is the undisputed owner of land, he is frequently allowed to file a bill to restrain an illegal sale thereof for taxes, grounding his right to relief upon the unauthorized proceedings of the public officer. And even in such case, there are not wanting respectable authorities that relief cannot be had by bill in chancery to enjoin the sale.” In this case the court seemed either to have overlooked the very careful distinction made in the case of Macklot vs. City of Davenport, as to the special equitable circumstances, which alone would, according to that case, give the Chancery Court jurisdiction, and those cases when the relief prayed was based upon the more illegality of the proceedings, or to have disregarded the rule of the case entirely. At all events, if the court intended to follow the rule as laid down in Macklot vs. City of Davenport, we are forced to believe that the special equitable circumstances necessary to confer the jurisdiction existed; but if they intended to enlarge the .jurisdiction of the Court of Chancery, certainly no satisfactory reason is given therefor.

In Indiana the courts seem to have uniformly taken jurisdiction to grant relief against the collection of an illegal tax, but in none of the cases does the question of jurisdiction seem to be raised; but in Jones vs. Sumner, 27 Ind., 510, the court say, in passing upon the question of illegal tax : “ Where a party appeals to a court of equity for relief, and invokes its extraordinary writ of injunction, he must rely upon some substantial equity. The decisions of this court, heretofore, have gone to the utmost extent of authority in restraining the collection of taxes.”

In Massachusetts, Courts of Chancery take jurisdiction in nil cases to restrain the collection of erroneous or illegal taxes, hut such jurisdiction is derived from a special statute (Gen’l Stat., ch. 18, sec. 79), which provides that “immediate resort can be had by a suit or petition to the court, sitting in chancery, to hear and determine concerning the validity of a proposed tax, or any violation or abuse of the legal right and power of raising taxes, and assessing them on the inhabitants, etc.” Prior to the passage of this act, those complaining of such excessive or illegal taxation, were uniformly remitted to their relief at law.

Although the rule of decision, as to when a Court of Equity will interpose to restrain the collection of taxes, does not seem to be uniform in the several States, we think, in the .absence of special statutes conferring jurisdiction on the Courts of Chancery, and where the question has been considered upon grounds of equity jurisdiction purely, the weight ■of authority, and especially the later and better considered ■opinion is in harmony with the rule as we have deduced it from an examination of our statutes, and former decisions of this court. "When the statutes provide the mode of appeal from the judgment^ and orders of an inferior court, that method must be adopted in all cases where the court was acting within the scope of its jurisdiction; and in all cases where no appeal has been provided for, or the court is proceeding in a matter in excess of, or beyond the limits of its jurisdiction, so that its proceedings are so erroneous as to preclude .an appeal, the remedy is by certiorari or prohibition. There may arise cases where even this resort would be inadequate to afford complete relief. In such cases, before the applicant would be entitled to relief by injunction, he must show the inadequacy of his law remedy, in order to enable the chancellor to ascertain clearly his jurisdiction to interpose for relief.

In the ease at bar it is denied that a legal remedy exists. This, .we have shown, is not the case. Appellees have shown ‘dearly that the action of the County Court was illegal, and the illegality of its act appears fully from the record. Their remedy at law was full, adequate and complete, and they show no excuse for not pursuing it. A review of the proceedings by certiorari would have disclosed the errors, and quashed the levy; or a writ of prohibition would have restrained the coiirt from making the illegal levy complained of. Instead of an application for an injunction, if these appellees had presented a petition for either of the law writs mentioned, not only their own relief could have been secured, but also-that of all the other tax-payers.

The appelles allege that if the injunction is not granted,, it will involve the tax-payers of Scott county in a multitude of suits against the sheriff, to prevent the collection of this tax. Exactly contrary is the case. A suit at law, on the part of any one citizen against the sheriff, to prevent the collection under the levy, would have'resulted in relief to all.

Having disposed of the causes of demurrer, which present the material issues in this case, we do not deem it necessary to consider the second cause.

It is argued that in these times of telegraphs, railroads and steam, that to insure immunity from wrongs and hardships under the law, the use of the extraordinary writ of injunction should be freely used. The bare statement of this proposition shows its weakness. If, indeed, we are fallen upon such times as that the citizen is either unwilling to brook the law’s delay,, or is unwilling to trust it to afford him redress, when the mode is pointed out to him, he may manifest that spirit in the popular branch of the government in the shape of law or decree authorizing the courts to disregard these enactments for the government of the judiciary, wliich are bottomed upon the wisdom and experience of ages, and arbitrarily settle the disputes of the country upon the progressive theory-suggested by counsel. But so long as the courts are boundby sworn allegiance to the Constitution and laws of the State as they have been interpreted by the wisdom and experience of the eminent jurists who have gone before us, such a suggestion can but meet with disfavor.

We would suggest to counsel that the apparent necessity for the intervention of the restraining powers of a Court of Chancery, might be based upon quite a different reason, and one which, in time, will, it is hoped, curo itself.

We are but lately emerged from an internal convulsion, which left our government and laws in a state of disorder and confusion; and, in the process used to restore their efficacy for the purposes for which governments are intended, attended, as those efforts must of necessity be, with embarrassing questions, growing out of our late troubles, many eases of individual hardships have arisen which seem to require the interfering hand of extraordinary power, and from the frequency of their use, it would seem the citizen was not unwilling to avail himself, and the courts not slow to give the relief. Doubtless, the writ, in many cases, was wisely interposed; but from the number which seem to be found crowding the records of our courts, it would appear that it has almost become the ordinary mode of instituting a suit for the redress of a civil injury.

It has been said by counsel, that to the courts of the country, more than any thing else, does the public look for the stability and perpetuity of good government, and the protection of the rights of the citizens thereof. If this be true, can the courts better aid in the restoration and protection of those than by steadily adhering to the ancient and well established usages which time and experience have demonstrated to be most conducive to the desired end. We do not feel warranted in making shipwreck of time-honored rules for the government of courts, to meet hardships growing out of a disordered state of society, but rather by applying them vigorously to the malady, insure its speedy cure.

The decree of the Scott County Circuit Court, overruling-the demurrer to the bill on the'first and third causes assigned, is reversed, and the cause remanded with instructions to dismiss the bill for want of equity.

Gregu, J.,

dissenting says:

James C. Gilbreath and twelve others, in behalf ot themselves and all other tax payers of Scott county, presented their bill of complaint against the appellant, to enjoin him from the collection of an excess of one-fourth of one percent, tax for public buildings, and one-half of one per cent, in par funds, for officers’ fees.

The complainants allege that they arc' severally the owners of considerable real and personal estate, liable to taxation in said county. They recite the various provisions of law, authorizing the County Court to assess taxes, and aver, that at the time and place fixed by law, said County Court met and made an assessment for the year 1871; that said court assessed the full amount allowed by law, for county purposes and for public buildings, and over said amounts they assessed and ordered collected one-half of one per'cent., in par funds, to pay officers’ fees, and one-fourth of one per cent, for a jail tax, which sums, among the legal taxes, were extended on the tax-books, and charged to them, and as an exhibit of the sum charged to each, they refer to the tax book and the sums carried out under the heads of such taxes; that the said tax books, with these illegal taxes thereon, lias.been made up in the usual form of law, with an execution thereto attached, and delivered to said appellant, as such sheriff and collector of Scott county, and he is proceeding to collect the whole of the tax on said book, that which is illegal, as well as that which is legal; that they are ready and willing, and offer to pay all the taxes legally assessed; that if said illegal taxes are not paid, said appellant threatens to, and lie will, sell their property, unless lie is restrained from so doing by an order of coui’t; that said illegal levy is oppressive upon appellees, and that they ought not to be subject to the expense and annoyance of bringing á multitude of suits to prevent their property from being levied upon and sold for such illegal assessments. That under the present system of practice, in this fcitate, they have no remedy, save by the exercise of the equity powers of tlie court, to restrain tlie appellant from carrying into effect the oppressive and illegal orders of the County Court, and closed with the usual prayer of injunction.

There is no question but the law limited the County Court in their assessment for public buildings to one-fourtli of one per cent., and in this instance they attempted to levy double that, and their attempt to assess one-half of one per cent, for officers’ fees, all likewise agree, was without the shadow of authority.

Cur only disagreement is upon the power of a court of equity to grant relief in such cases, and I may further state that upon many of the abstract propositions of law announced by the majority, we do not disagree", and so far as such legal, propositions tend to sustain the conclusions at which they have arrived, I am willing to concede their full force and extent.

I am willing to argue this case upon their strongest grounds, and grant all that is claimed by Mr. Justice Field, in the well known case of Hows against the city of Chicago, 11 WaL, 109, and few opinions in able coui’ts have dealt in more general terms, or declined relief in stronger cases. lie says: “No court of equity will, therefore, allow its injunction to issue to restrain their action, except where it may be necessary to protect the rights of the citizen, whose property is taxed, and he lias no adequate remedy by the ordinary process of the law. It must appear that the enforcement of the tax would lead to a multiplicity of suits, or produce irreparable injury, or where the property is real estate, throw a cloud upon the title of the complainant before the aid of a court of equity can be invoked.”

Now the majority say that each case must fall under some one of those heads of equity jurisprudence; and at present we assume to face them upon this ground.

Some decisions favor tlicir conclusions, if we do not consider our peculiar statutes, and different judges take different views upon this, as they necessarily will upon all important questions litigated in so many forms, arising upon statutes having the same object, but widely differing in detail, and involving most important /interests. And by far the greater number of apparent conflicts are attributable to the different judicial systems in which they are found. Tt is well known that in the various States of the Union our revenue systems are like the laws of descent, dower or homestead, fashioned after the changing will of a Legislature, and subject to all the uncertainty, dubiety and imperfections of hasty action, and we cannot arrive at a correct conclusion without a careful consideration of our own tax laws, and a clear view of our system of rights and remedies as they depend upon these rovenue statutes. Thus considering, if this case comes under any of the above heads of equity jurisdiction, the judgment should be affirmed, wo will consider them.

The ownership of real as well as personal property is averred; the assessment and the proceedings to collect in the forms of law are alleged.

It seems these citizens should not, under all circumstances, be compelled to pay this illegal assessment, which might involve the sacrifice of the very lands they arc justly seeking to protect. The sheriff was proceeding to sell the lands, under the color of law, at the time and in the manner prescribed for the non-payment of taxes.

And under the execution annexed to the tax-book, he would collect taxes,..penalty and costs, and the purchaser would receive a certificate for title. See Secs. 75, 98, 100, 105, Rev. Act, 1871.

Then a redemption can only be had (Sec. 116.) by the owner depositing with the county treasurer an amount of money equal, to that for which the land was sold for tax, penalty and costs and the taxes subsequently paid thereon, together with interest, and one hundred per centum penalty on the whole amount so paid.

If such deposit is not made within two years, under section 125, the county clerk shall execute a deed to the purchaser or his assigns for the whole tract of land or lot sold, which deed, in the usual form, shall he acknowledged and recorded, and shall vest in the grantee, his heirs and assigns, the title in the real estate described, and shall be received in all courts and places where such title is involved as conclusive evidence that each and every act and thing required to be done, under the imovisions of the revenue law, had been done; and the party offering such deed shall not be required to produce the assessment, appraisement, notice or sale, or any other thing, as evidence to sustain such title, and the party controverting such deed can only show that the land conveyed was Aot subject to taxation.

Second. That the taxes due, had been paid before the sale.

Third. That such land had been duly redeemed according to law, before the execution of the deed; or

Fourth. That the laud was the property of a feme coverte, minor, insane person, or one in imprisonment at the date of the sale and deed.

Now it will be readily seen by examining the provisions of these sections, that the statute gives no legal remedy to stop proceedings, or to stop or set aside a sale because of any opj>ressive or illegal levy or collection, but prescribes a direct channel through which acts shall proceed until an absolute deed is made for the lands, by one acting in the forms of, and under color of law, and by these statutes, this deed is not only relieved from reciting the appraisement, levy, notice, sale, etc., but it is expressly provided that the holder shall not be required to prove anything of the kind, and that his deed shall be conclusive evidence, unless the other party affirmatively show that the lands could not be taxed; that the tax or redemption money was paid, or the owner, under legal disaability; thus cutting off, not merely defenses for informality, but for illegality, extortions and other gross wrongs. In this case depriving the parties of all redress, unless they first paid out their money. And can it be said such a deed, outstanding under these statutes, is no cloud upon the occupant’s title? And it is no answer, in this case, to say, the complainants had personal property out of which the tax could have been made, because, our statutes, so unlike most others, that preserve real estate, (section 92), expressly prohibit the sheriff from making a distress and sale of personal property for any taxes due on land, and requires such taxes to be made only out of the lands; how then shall the owner avoid the shadow overhanging his title ? He, being in possession, cannot sue in ejectment, and of course it cannot be insisted that he could file a bill to remove the cloud from the title, because equity will never entertain such a bill, unless there is a real cloud existing, and to admit that, at any time, such cloud does arise upon his title, would be to admit all the most persistent, against tax injunctions, have ever said was necessary to authorize a chancellor to interpose by the prohibitory process of injunction.

And further, section 123, provides that “all actions to test the validity of any proceeding in the appraisement, assessment or levying of taxes upon any land or lot or part thereof, •etc., shall be commenced .within two years from date of sale and not afterwards.” Thus making the limitation to all suits ■absolute upon the expiration of the period of redemption, a very remarkable limitation of only two years for real estate-actions.

Beyond all this, section 178, provides that, “upon the sale of any land or town or city lot, or part thereof for taxes then due, if such sale should prove invalid on account of any informality in the proceeding of any officer having any duty to perform in relation thereto, the purchaser a,t such sale, shall be entitled to receive from the proprietor of such land ■or land or lot, the amount of taxes, interest, penalties and costs of advertising with interest thereon from the payment thereof, and the amount of taxes paid thereon by the purchaser, subsequent to such sale, and such land or lot shall be bound for the payment thereof,” etc. Here it is declared that certain sales, are so far in violation of law that the courts must set them aside, vet tlie proprietor must pay upon a levy and collection not valid in law, or lie must forfeit and pay all these costs and penalties, which are made a lien upon his land. This is creating a very striking cloud upon his title, as well as showing a very inadequate remedy at law. Such provisions as cited — two years of limitation, no redemption, without paying double the amount, no recitals required in a deed, the deed made absolute and by law declared conclusive evidence in all courts, seem to becloud the title so a chancellor might restrain, where the attempted collection is clearly illegal, as it is conceded to be in this ease; hence we are of opinion the court had jurisdiction.

We will refer to some good authority, but not attempt to notice numerous decisions that have been rendered sustaining this view.

Mr. Hilliard, in his work on injunctions says : “An execution sale may be enjoined where it would cause a cloud on the title of the complainant,” {page 234;) and in laying down what lie says has been held to bo the law, on page 455, lie says r “and though tax deeds of the land would be void, yet they would bo a cloud on the title, and the issuing them may be restrained.”

Mr. Blackwell, in his work on tax titles, second edition, page 481, speaking of an officer proceeding to sell without sufficient authority says: “The execution of the power under such circumstances is calculated to cast a cloud upon the title of the owner, and to render it unmarketable in the equitable sense of that term. * * * * When the owner is in posr session of the land at the. time illegal proceeding is about to take place, ho has' no remedy in a court of law which would indemnify him for the threatened wrong to his title. * * * * Surely under such circumstances a court of equity would grant relief upon the familiar principles of action in that court.” Upon this and .succeeding pages this able author reviews many decisions, and announces the doctrine that courts of equity have jurisdiction to enjoin the collection of illegal taxes.

Mr. Dillon, in Ms valuable work on municipal corporations, page 682 section. 731 says: “In tins country the right of property holders or taxable inhabitants to resort to equity to restrain municipal corporations and tlicir officers from transcending their lawful powers, or violating their legal duties, in any mode Avhicli Avill injuriously affect the taxpayers, such as * * * * leAying and collecting void and illegal taxes and assessments, under the circumstances, presently to he explained, has been affirmed or recognized in numerous eases, in many of the States. It is the prevailing doctrine on this subject,” etc.

Mr. High, in bis Aery late Avork'oii injunctions, section 367, says: “ The most generally recognized exception to the rule that equity will not interfere Avith the collection of the revenue, because of defects or illegalities in the proceedings, is in casos where the proceedings, if not enjoined, would result in clouding the title to real estate. * * * So, too, Avliere a city charter declares a tax a lien upon the premises on Avhich it is assessed, the tax, if illegal, creates such a cloud upon the title as to 'warrant an injunction, * * * and the jurisdiction to thus interfere for the prevention of a cloud upon title, is regarded as pertaining to tlie Avell settled powers of equity, which Avill interfere to prevent such a cloud as tends to diminish the value of the property or cast a doubt upon the title.” And in the next section, when speaking of proceedings, by law, void on their face, he says : “But where by statute a tax deed is made prima facie evidence of the regularity of all the proceedings incident to the assessment and sale, if the tax has been imposed contrary to law, such a cloud upon the title will result as to warrant the interference of equity.” In the case at bar, no one here- questions the fact that the tax Avas imposed contrary to laAV, and the deed would not only be prima facie but conclusive.

Irreparable injury justifies equitable jurisdiction. It is not the great extent of the injury that is known as irreparable, hut au injury that cannot be redressed or properly estimated and relieved against, and if tlie costs, "■penalties and illegal taxes assessed against the appellees, could not have all been relieved against by process of law; and, under these peculiar statutes, I incline to that opinion, this would afford grounds for equitable relief'.

To prevent a multiplicity of suits, taking the propositions inversely as above stated, is the third head of equitable jurisdiction, and this has been presented in so many leading cases that we do not feel called upon to rc-argue it. In Burr vs. Denison, 17 N. H., 170, seventeen persons sued for all the taxpayers of the district, and had a judgment enjoined, and also the tax to pay it. In Smith vs. Swamstedt, 16 IIow., a few Methodist preachers sued for themselves and many others, etc. In Page vs. The Inhabitants of Halifax, 12 Gash. (Mass.), 410, a few tax-payers sued for all, and obtained an injunction, etc. See Howard et al. vs. Mayor of Linn, 1 Allen, 103. In Nevett vs. Galispe, 1 How. (Miss.), the court said: “Courts of equity will interfere to prevent a multiplicity of suits where the subject matter of contest is held by one individual in opposition to a number of persons who controvert his right, and who hold separate and distinct interests, depending upon a common source.” But a reference to the elementary works does away with the necessity of referring to numerous decisions.

The last general head is the inadequacy of the remedy at law. A careful review of the authorities will show that where a proceeding is being had for the sale of lands occupied by a tax-payer, any remedy at law is almost universally held to be inadequate, because, even an illegal levy so far creates a cloud upon the title as to injure the value, and especially is this so where a deed by statute is made prima facie evidence of the regularity of the proceedings, and the party in possession has no legal remedy to remove the cloud from his title. And our peculiar laws declare the deed conclusive evidence in all courts; that everything has been done necessary to a perfect title, and forbids the proper owner making proof to the contrary, except proof t-liat the lands were not taxable; that the taxes were unpaid, or the owner uuder legal disabilities. And. those statutes give no remedy against illegal assessments, prescribe no mode of procedure to get rid of illegal or fraudulent action on the part of tax-officers. Then, with no mode of redress pointed out by statute, the owner is forced to pay and risk a suit for a return of liis money, or his lands will be sold, a cloud thrown upon his title, or he would be compelled to pay out his money and take the risk and pay the expense of a suit to recover it back. The case of Bull et, al. vs. Heed, et al., 13 Gratten, 86, is so full and direct upon all the main points in this case, that a reference thereto ought to have been sufficient argument.

As a general rule, courts should not enjoin the collection of State taxes, unless the complainants show a case of great wrong, without adequate remedy at law. Municipal taxes, and other local assessments are not so highly favored, and. some distinctions are made between personal and real estate— the nature of the former renders it easily marketable, and its loss can be justly estimated in damages.

Real estate is fixed; the title depends more upon decrees, deeds and other writings ; its value may be affected by liens and by local surroundings, and a deed in form (if not teehnichally valid), outstanding, may lessen its worth, and especially so when such deed has been executed in the usual, course of law, and hence the necessity for the rule allowing a court of equity to restrain where the law has prescribed nc adequate remedy. Burnett vs. Cincinnati, 3 Hammond, 73; Vanoree et al. vs. Justices of the Inferior Court, 27 Georgia, 356; Osborn vs. U. S. Bank, 9 Pet., 739; Story’s Eq. Pl., secs. 97, 112, 126; Civil Code, sec. 33.


source: Caselaw Access Project

author: George Rose Smith, Justice.

license: Public Domain

text:
    Ellis “Bucky” BELL v. STATE of Arkansas
    CR 80-84
    603 S.W. 2d 397
    Supreme Court of Arkansas
    Opinion delivered August 25, 1980

      Robert F. Moretead, for appellant.

      Steve Clark, Atty. Gen., by: Jack W. Dickerson, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

The jury found Bell guilty and sentenced him to 15 years’ imprisonment for aggravated robbery and 5 years for interference with a law enforcement officer by a threat of deadly force. He argues two points for reversal.

First, there is no merit in the contention that Bell was denied his right to speedy trial. It is true that he was not tried within 9 months after his arrest and incarceration, but that delay did not entitle him to an absolute discharge. At most, he was entitled to be released and then to be tried within the time allowed by Criminal Procedure Rule 28.1 (b), which is ordinarily within the third full term of court, not counting the term in which he was arrested. A. R. Crim. P. Rule 28.1 and 30.1 (1976); Matthews v. State, 268 Ark. 484, 598 S.W. 2d 58 (1980). He was tried within that third term of court. Moreover, we find that under the balancing principle laid down in Barker v. Wingo, 407 U.S. 514 (1972), the delay was not unreasonable. A substantial part of the delay was due to motions filed by the defendant, for psychiatric examinations and for the production of the testimony of nonresident witnesses. That the defendant’s grandfather (who assertedly might have been a defense witness) died ten months after the defendant’s arrest does not establish prejudicial delay. Of course, there is no suggestion that the delay had anything to do with the grandfather’s death, nor is it shown that his testimony would have been significantly favorable to the defense.

Second, it is argued that the defense of mental disease or defect was established by a preponderance of the evidence. That defense was submitted to the jury, which rejected it. Although the jury was required to determine the issue by the preponderance of the evidence, the test in this court is whether the verdict is supported by substantial evidence. Oliver v. Miller, 239 Ark. 1043, 396 S.W. 2d 288 (1965). There is an abundance of such supporting evidence in the record; in fact, there is no argument to the contrary.

Two lesser points should also be mentioned. The State suggests in its brief that Bell should have been charged with resisting arrest, under our holding in Breakfield v. State, 263 Ark. 398, 566 S.W. 2d 729 (1978). That point was not raised in the trial court and is therefore not before us. Second, more than three months after the appellant’s brief was due, and more than two months after the defense counsel’s brief was actually filed, Bell filed a pro se motion asking for leave to file a pro se supplemental brief. We deny that motion, not only because of its untimeliness but also because of its want of even apparent merit.

Affirmed.


author: John I. Purtle, Justice.

text:
    Cleveland PARKER and Felicia Lynn REYNOLDS v. STATE of Arkansas
    CR 80-106
    603 S.W. 2d 393
    Supreme Court of Arkansas
    Opinion delivered August 25, 1980

      Paul Johnson and William H. Craig, for appellants.

      Steve Clark, Atty. Gen., by: Victra L. Pewell, Asst. Atty. Gen., for appellee.
   John I. Purtle, Justice.

On June 18, 1979, appellants were tried jointly; appellant Parker was convicted of theft of property in violation of Ark. Stat. Ann. § 41-2203 (Repl. 1977), appellant Reynolds was convicted of theft by receiving in violation of Ark. Stat. Ann. § 41-2206 (Repl. 1977), and both appellants were also convicted of promoting prostitution in the first degree in violation of Ark. Stat. Ann. § 41-3004 (Repl. 1977). Parker received five years for theft and five years for promoting prostitution, and Reynolds received two years for theft by receiving and three years for promoting prostitution.

On appeal, appellants argue that the evidence was insufficient to sustain the verdicts and that the trial court erred in overruling appellant Reynolds’ objections to cross-examination by the prosecuting attorney. We find there was sufficient evidence to sustain each conviction and that the court did not err in failing to overrule appellant Reynolds’ objections to the cross-examination.

The facts in this case reveal that appellants Parker and Reynolds were living together in an apartment rented by Reynolds. On or about October 11, 1978, Parker met Denise Wylie downtown and informed her that Reynolds wanted to see her at their apartment. She accompanied Parker to the apartment; but, when they arrived, Reynolds was taking a bath.

At that time, Parker asked Wylie if she wanted to learn how to make some money, and she said that the would. Parker produced a set of cards and proceeded to teach her a card game. The object of the game was for Wylie to pick out the black card out of the two red cards. The three cards were shown to her, turned face down, and shuffled about.

During the process of the game, Parker obtained possession of three rings from Wylie. His testimony, and that of Reynolds, was that Wylie lost the rings in a game of chance. Wylie’s testimony was that she never intended to gamble or relinquish the rings and that Parker and Reynolds wrongfully refused to return the rings to her. One of the rings was a turquoise, one was a mother of pearl, and one was a wedding ring with a number of diamonds in it. The diamond ring was subsequently appraised by Lloyd Stanley, a gemologist, as having a value of $225. Later, Parker gave the rings to Reynolds who maintained possession of them.

Wylie testified that she repeatedly requested Parker and Reynolds to return her rings and even bargained to buy them back. Appellants contend that the rings were lost in a game of chance and they had the right to keep them and that they came into possession of the rings with the consent of the owner.

After a few days of begging, pleading, and negotiating, Wylie was unable to regain possession of her rings and called the Pulaski County Sheriffs office and complained that her rings had been stolen. A search warrant was issued and served on October 27, 1978, by deputy sheriffs from Pulaski County. The search was made at the premises located at 5910 Valley Drive, Apartment No. 2, and the three rings were recovered. Reynolds was wearing two the rings, and the third ring (diamond) was found in a ring box in a dresser drawer in a bedroom of the apartment.

When the officers entered the apartment with the search warrant, they found a young woman named Lynda Neese in one of the bedrooms which led to the second conviction in this case.

Although Lynda Neese made no complaints to the officers at that time, she subsequently informed the prosecuting attorney’s office that she had been held against her will at the apartment and forced to perform acts of prostitution. Her testimony was that she was first taken to the appellants’ apartment by a man named Donald Warren. Warren had apparently taken Neese to Parker because she would not “pull any tricks” for him. She stated that Warren sold her to Parker for $40.

She also testified that Parker ordered her into the bedroom shortly after she arrived at the apartment and told her to undress. At first she refused but he made a second demand and told her he would be back in a few minutes and she had better be undressed. Upon his return, she was undressed, and Parker took pictures of her in the nude. Subsequently, she was brought back into the living room where she was forced to undress again.

Shortly after Warren collected his $40 and left, Parker drove Reynolds and Neese to the area of 11th and Battery Streets for the purpose of picking up customers. Neese testified that Reynolds was to show her how to “pull tricks.” However, before they “pulled” the first oáe, the police arrived, arrested them for loitering, and took them to the jail. In a short time, someone unknown to Neese posted bail for the women, and they were "put out on the street” again by Parker. According to Neese, Reynolds immediately performed acts of prostitution sufficient to pay the S57 it cost to get out of jail. Neese then engaged in her first “trick,” and the customer paid $25 to Reynolds. Neese testified that she informed Reynolds she wanted to leave, but she was told if she left “she would get in trouble.” On the second day, Reynolds called a man and talked with him. Parker then took Neese and Reynolds to meet the man. The man took Neese to a park, had intercourse with her, and paid Reynolds.

Neese admitted having intercourse four times and stated that each time Parker had driven them to the area and that each time Reynolds had collected the money.

On another occasion when Neese asked if she could leave, Reynolds replied, “If you leave you’re going to get into trouble.” On the first night, when Warren delivered Neese to Parker, and received the $40, Reynolds told Neese, “Look at this. You lost $20. You lost $40 and now you’ve got to stay here. I’ve gained the $40 plus you’re my man’s lady.” On the same night, Parker took them in his car, put them on the street, and told them to “pull tricks.” Neese further related that Parker told her if she didn’t do what he told her to she was going to get into trouble.

There is no evidence that Parker directly received any of the money from the acts of prostitution performed by Neese. Reynolds always collected for the acts performed by her and Neese during the two days they worked together.

During the cross-examination of appellant Reynolds, the prosecuting attorney was allowed, over the objections of the appellant, to ask her about the amount of her income from her job at a local department store. The questions included the amount of rent paid on the apartment and the make of car she drove. Questions relating to acts of prostitution, either recent or remote, were permitted by the court.

We first consider the argument that the evidence was insufficient to sustain the verdict. The testimony presented was essentially that related in the facts above.

The statute on theft of property is Ark. Stat. Ann. § 41-2203 and provides:

(1) A person commits theft of property if he:
(a) knowingly takes or exercises unauthorized control over, or makes an unauthorized transfer of an interest in, the property of another person, with the purpose of depriving the owner thereof; or
(b) knowingly obtains the property of another person, by deception or by threat, with the purpose of depriving the owner thereof.
(2) * *
(b) Theft of property is a class C felony if:
(i) the value of the property is less than $2,500 but more than $100; * * *

The statute declares that any person who knowingly takes or exercises unauthorized control over property of another with the purpose of depriving the owner of the property or knowingly obtains the property of another by deception or threat with the purpose of depriving the owner thereof is guilty of theft of property, which is a class C felony if the value of property is over $100 and less than $2,500. Although no value was placed on two of the rings, the testimony of Lloyd Stanley, a certified gemologist, was that one of the rings had a value of $225. We do not ignore the fact that the appellants testified that the witness voluntarily parted with the rings and that they were either theirs as a result of the game of chance or as security for the gambling debt. On the other hand, the witness testified that she never intended to gamble and she never willingly parted with her rings. Her testimony was that Parker asked to see the rings and refused to return them. Because both appellants were present at the time of this transaction, it is obvious that Reynolds knew the circumstances under which the possession of the rings was obtained. Certainly, the testimony of witness Wylie was substantial enough to support the finding that appellant Parker had obtained the rings by deception and had knowingly exercised unauthorized control over them. The jury has the sole right to determine which witness to believe.

The statute relating to the theft by receiving is Ark. Stat. Ann. § 41-2206 and provides:

(1) A person commits the offense of theft by receiving if he receives, retains, or disposes of stolen property of another person, knowing that it was stolen, or having good reason to believe it was stolen.
# # *
(5) * *
(b) Theft by receiving is a class C felony if:
(i) the value of the property is less than $2,500 but more than $100; or

We have already concluded that Parker obtained the rings by theft as defined by the statute; therefore, the property was stolen within the meaning of Ark. Stat. Ann. §41-2206. Reynolds had full knowledge of the entire transaction and of the witness’s demands for the return of the property. The apartment was rented by Reynolds, and she lived in the apartment with Parker. No doubt, the jury was justified in finding that she had possession of the rings which were either removed from her hand or from the apartment which she rented.

Reynolds argues she was not in possession of the only ring which had a proven value in excess of $100; however, we have held that construtive possession occurs when the accused maintains control or the right to control property. When stolen property is found at a location which is under the joint control of the accused and other persons, it is sufficient to prove possession if there are additional factors which would link the accused to the possession. Cary v. State, 259 Ark. 510, 534 S.W. 2d 230 (1976); United States v. Johnson, 563 F. 2d 936 (8 Cir. 1977) cert. denied, 434 U.S. 1021 (1978).

The rule that this Court reviews the evidence in the light most favorable to the state and affirms if there is substantial evidence to support the conviction needs no citation. Nor do we need to cite authority that this Court does not substitute its judgment for that of the trier of the facts if there is any substantial evidence to support the finding.

We now turn to the charge of promoting prostitution in the first degree. Ark. Stat. Ann. § 41-3004 provides:

(1) A person commits the offense of promoting prostitution in the first degree if he knowingly:
(a) advances prostitution by compelling a person by physical force or intimidation to engage in prostitution, or profits from such coercive conduct by another, or
# # #

It is not necessary that both appellants used physical force or intimidation in order to be guilty of this charge. If either of the appellants used force or intimidation and both profited from such conduct, then both are guilty of the offense charged. Lynda Neese testified that she was threatened by Reynolds and Parker. She testified she was afraid to report what had happened to her when the police made the search of the premises. She also stated that when she threatened to leave Reynolds told her, “If you leave you’re going to get into trouble.” It is true that Neese testified no physical force was ever inflicted upon her, but she said that she was scared and afraid to leave. There is no contradiction of her statements that money received from her “tricks” was paid directly to appellant Reynolds.

Certainly, Parker benefited from the use of this money received by Renolds, even if she did not physically transfer the money to him. It is obvious that she could not make all of the payments required to maintain an apartment on the salary she received as a department store employee. The jury could have justifiably found that part of the money procured by prostitution was used for mutual benefit. In this case, Parker certainly would have benefited by the conduct of Reynolds in collecting the money. On the other hand, Reynolds was able to collect the money and receive benefits because of Parker’s coercive conduct influencing this witness to engage in acts of prostitution.

Finally, we examine the allegation that the court erroneously allowed the prosecution to cross-examine appellant Reynolds regarding her means of livelihood. Appellant objected to the questions relating to appellant Reynolds’ prior conduct as a prostitute on the grounds that it lacked materiality or relevancy and that it exceeded the scope of direct examination. We think the court properly allowed this type of cross-examination on the theory that the questions and answers went to the proposition of appellant Reynolds’ present income. In such case the probative value did outweigh the prejudicial effect upon the witness’s testimony. This examination was also proper in an attempt to establish the charges for which the appellants were being tried at the time. Certainly, the fact that Reynolds may have been engaged in prostitution herself had probative value on the question of guilt or innocence in this case.

Affirmed.

Mays, J., not participating.


author: John F. Stroud, Justice. John I. Purtle,

text:
    Dwight Edward PLUMMER a/k/a Robert Keith REDMON v. STATE of Arkansas
    CR 80-37
    603 S.W. 2d 402
    Supreme Court of Arkansas
    Opinion delivered August 25, 1980

      Warren H. Webster, for appellant.

      Steve Clark, Atty. Gen., by: Victra L. Fewell, for appellee.
   John F. Stroud, Justice.

Appellant was convicted of burglary, aggravated robbery, and of being a felon in possession of a firearm. From an aggregate sentence of 20 years and a $1,000 fine, appellant brings this appeal alleging four points of error. Finding no merit to appellant’s contentions, we affirm the jury verdict.

The home of Rosalie Cheatham was broken into on July 9, 1979, just before 11:00 p.m. The intruder cut through the lower section of a locked screened-door and walked in a crouched position approximately six feet into the house to seize some cash and a purse, all the while pointing a pistol at Ms. Cheatham and her mother, Marie. Marie Cheatham was in the family room watching television when the intruder entered and, upon seeing him, screamed at him to get out of the house. This alerted Rosalie Cheatham, who was in the kitchen adjacent to the family room, and she came immediately. Although her mother was unable to see much of the intruder’s face due to a straw hat pulled down low on his brow, Rosalie Cheatham testified she was able to observe his facial characteristics for at least 45 seconds. She testified that she got a good look at his right profile and as he was leaving, he was fully in view. After grabbing the purse and money, the intruder backed out of the hole he had cut in the screen, but lost his hat in the process.

The purse was discovered the next morning in a Little Rock housing project, lying near a trash bin with the contents scattered around it. The police were called and the purse and its contents returned to the Cheatham home. While checking to see what was missing, Rosalie Cheatham found a payroll check stub that had not previously been in her purse. Investigation by the police revealed that the check stub was from a payroll check paid to appellant by his employer. Appellant denied any involvement in the robbery, claiming that he had spent the night of July 9 at his sister’s apartment in the project and, upon leaving for work the next morning, stopped by the trash bin to clean out his car. He admitted seeing the purse and briefly looking through it, but claimed it was the only time he had ever seen the purse. At a line-up three days after the robbery, Rosalie Cheatham identified appellant as the man who had robbed her. On October 9, 1979, appellant was tried before a jury and, despite several alibi witnesses on his behalf, was convicted of all three charges. He was sentenced to five years for burglary, 10 years for aggravated robbery and five years for felon in possession of a firearm, to be served consecutively, and was also fined $1,000 for aggravated robbery.

Appellant first contends on appeal that the line-up from which he was indentified was unfair in that it was conducted in a manner calculated to result in his being identified as the robber. The main thrust of his argument is that he was made to participate in the line-up dressed in clothing almost identical to that which Rosalie Cheatham had described the robber as wearing, and that none of the other five men in the line-up were similarly dressed. It is well-settled that any lineup to which an accused is submitted must meet due process standards of fundamental fairness and not be arranged in such a way as to be impermissibly suggestive as to the person pointed out by the witness. U.S. v. Wilkerson, 453 F. 2d 657 (8th Cir. 1971), cert. denied 405 U.S. 1071 (1972); Foster v. California, 394 U.S. 440, 89 S. Ct. 1127, 22 L. Ed. 2d 402 (1969); Simmons v. U.S., 309 U.S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968). Any claim of unfairness must be evaluated in light of the totality of surrounding circumstances. Simmons v. U.S., supra. In the present case, appellant’s claim of impermissible suggestiveness stems solely from the similarity of his clothing to that of the intruder as described by Ms. Cheatham. However, she testified that the clothes were of very little significance (no more than 2%) in her identification of appellant at the line-up; that “the face was the primary thing that I saw . . . and I riveted my attention toward the eyes.” She stated that she was great at faces, having acquired that ability through the years as a college professor to recognize the students in her classes. Furthermore, Ms. Cheatham never faltered in her certainty that appellant was indeed the person who robbed her, even when advised of the possibility of his receiving a sentence of life imprisonment if convicted. It is most significant that the police did not make appellant dress in clothing similar to that of the intruder. They merely brought him from a cell where he was being held on a traffic charge and he was already wearing the clothing. We are unaware of any authority requiring the police to have a suspect change out of his street clothes before appearing in a line-up. We cannot say that the line-up in question was conducted in an impermissibly suggestive manner.

In his second point appellant asserts that the trial court erred in allowing the prosecutor to refer to previous convictions of appellant prior to the introduction of any evidence tending to show that he actually had been previously convicted of a felony. Appellant cites no authority to support this contention, and we find none. As the prior felony conviction was an element on one of the offenses with which appellant was charged, it was certainly not improper for the prosecutor to refer to the previous conviction prior to the introduction of direct proof so long as competent evidence was later presented to support the statement.

Thirdly, appellant urges for reversal that the trial court erred in allowing a copy of appellant’s judgment of conviction and a copy of the pertinent criminal docket sheet to be introduced into evidence. Appellant bases this argument on the grounds that he was not advised that these matters would be introduced by the State, contrary to Rule 17.1 of the Arkansas Rules of Criminal Procedure, and that no proper witness was called by the State to introduce these documents. Rule 17.1 provides, in pertinent part, as follows:

(a) . . . the prosecuting attorney shall disclose to defense counsel, upon timely request, the following material and information . . .”
(v) any books, papers, documents, photographs or tangible objects, which the prosecuting attorney intends to use in any hearing or at trial . . . (Emphasis added.)

As there was no request by defense counsel as contemplated in Rule 17.1, it can hardly to said that the rule was violated. Additionally, as the prior conviction was an element of one of the offenses charged, appellant was obviously put on notice that evidence of the conviction would be presented at trial. Appellant’s other contention on this point, that the State erred in failing to call a proper witness to introduce the documents, must also fail. Both documents were properly certified, and the trial court sua sponte took judicial notice of the authenticity of the judgment of conviction and docket sheet. We find no error in that action.

Appellant’s final contention is that it was error for the trial court to allow into evidence appellant’s pay check stub which was found by Rosalie Cheatham in her purse after it was returned to her. Again, appellant offers no authority in support of this assignment of error. The presence of the check stub in the purse was circumstantial evidence tending to link appellant with the crime, although the jury heard appellant’s testimony offering an explanation as to how the check stub could have become intermingled with the contents of Ms. Cheatham’s purse. It was for the jury to resolve this evidence and attach the degree of credibility they felt it deserved. In Parker v. State, 266 Ark. 13, 582 S.W. 2d 34 (1979), a rape case, the trial court properly allowed into evidence metal flakes found on the bed on which the rapes occurred as they were similar to metal flakes found on the defendant’s clothing at the time of his arrest. Here, as in Parker, the evidence under attack was merely circumstantial, but in neither case was it without relevancy. Accordingly, it was not error for the trial court to admit the check stub into evidence.

As we find no merit in appellant’s points for reversal, we affirm the judgment of the trial court.

Affirmed.

Purtle, J., dissents.

John I. Purtle,

dissenting. I believe the lineup as conducted was unduly suggestive. The only manner in which it could have been more indicative would have been to have placed a sign around the appellant’s neck that stated, “This is the one.” The appellant was the only person dressed in clothing similar to the attire the robber was wearing at the time of the alleged crime. The least they could have done was to have the others dressed in similar attire.


author: Richard L. Mays, Justice.

text:
    Charles Lewis WALLACE v. STATE of Arkansas
    CR 79-199
    603 S.W. 2d 399
    Supreme Court of Arkansas
    Opinion delivered August 25, 1980

      John W. Achor, Public Defender, by: Dewey Fitzhugh, Deputy Public Defender, for appellant.

      Steve Clark, Atty. Gen., by:Jack W. Dickerson, Deputy Atty. Gen., for appellee.
   Richard L. Mays, Justice.

Appellant, Charles Lewis Wallace, was found guilty by a jury of kidnapping and capital murder and sentenced to fifteen years and life imprisonment without parole. Several points for reversal are argued, none of which we find to have merit.

On September 4, 1977, appellant and three co-defendants, two of whom testified against him at trial, accosted Calvin Smith on the parking lot of a Little Rock restaurant and forcefully removed him to the bank of the Arkansas River where he was drowned. Appellant was arrested seven days later on September 11, 1977, and remained in jail until he was tried on April 30, 1979.

Since more than 19 Vi months elapsed between appellant’s arrest and his trial, appellant first contends for reversal that he was denied a right to a speedy trial. Our Rules of Criminal Procedure provide a bar against prosecution only if a defendant is not brought to trial before the expiration of three full terms of court, excluding the term in which the arrest occurs and all periods of necessary delay. Arkansas Criminal Procedure Rule 28.1 and 30.1 (1976); Matthews v. State, 268 Ark. 484, 598 S.W. 2d 58 (1980); State v. Knight, 259 Ark. 107, 533 S.W. 2d 488 (1976). In the Pulaski County Circuit Court where the appellant was tried, no such speedy trial violation can occur before the expiration of 18 months since the court has only two six months terms a year. Since appellant concedes that at least 3 V2 and possibly 8 Vi months of the 19 Vi month trial delay may be properly excluded, he obviously was brought to trial within the time limitation established by our Rules of Criminal Procedure. Although appellant may have been entitled to pre-trial release under our rules at the end of nine months, as opposed to absolute discharge, such entitlement does not affect his convictions.

Second, appellant argues that the trial court improperly excluded evidence of bad character of the victim’s brother. We discern no relevance in such evidence and hold that it was properly excluded.

Appellant next argues that the trial court erred in refusing to give certain instructions requested by appellant concerning such matters as reasonable doubt, presumption of innocence, premeditation and deliberation, kidnapping, false imprisonment, capital murder, and circumstantial evidence. We find no merit in this contention. We have consistently held that it is not error to refuse to give a requested instruction where the subject matter is fully covered by instructions already given. Beasley v. State 258 Ark. 84, 522 S.W. 2d 365 (1975); Maxwell v. State, 236 Ark. 694, 370 S.W. 2d 113 (1963); Cobb v. State, 265 Ark. 527, 579 S.W. 2d 612 (1979). All of the matters included in appellant’s requested instructions were adequately covered by other instructions given by the court, and appellant does not contend otherwise.

Appellant, pro se, raises several other issues challenging his convictions from ineffective assistance of counsel to the bias of the trial judge, none of which are meritorious. We have also examined other objections made in the course of appellant’s trial and find no asserted error that warrants discussion.

Affirmed.


author: PER CURIAM

text:
    James HIGGINS v. STATE of Arkansas
    CR 80-184
    603 S.W. 2d 401
    Supreme Court of Arkansas
    August 25, 1980
   PER CURIAM

Petitioner was convicted by a jury of aggravated robbery and theft of property. He was found to have been convicted of two to three prior felonies and was sentenced to consecutive terms of twenty years imprisonment and ten years imprisonment in the Arkansas Department of Correction. The Court of Appeals affirmed, Higgins v. State, CA CR 79-97 (January 16, 1980). Petitioner now seeks permission to proceed in circuit court for postconviction relief on the grounds hereinafter discussed.

Petitioner generally alleges that he was denied effective assistance of counsel both at trial and on appeal. In support of his allegation concerning trial counsel he specifically alleges that his attorney did not adequately consult with him; failed to investigate before trial; failed to ask for a reduction in bond as requested; failed to subpoena witnesses as requested; failed to interview the state’s witnesses; and failed to object to a witness changing her description of the robber. These conclusory allegations fall short of demonstrating that petitioner was denied effective assistance of counsel at trial or on appeal. Petitioner has not furnished the names of the witnesses requested and the substance of their testimony. He has not presented facts to support his allegations nor has he demonstrated any prejudice to him - by these alleged omissions. We have consistently held that mere errors, omissions, mistakes, improvident strategy or bad tactics will not justify postconviction relief. Leasure v. State, 254 Ark. 961, 497 S.W. 2d 1 (1973).

Petitioner alleges that it was a violation of the double jeopardy clause for him to be convicted of both aggravated robbery and theft of property. He claims that both charges arose from the same transaction and, thus, the theft charge was a lesser included offense. We reject this argument.

Aggravated robbery is committed when a person employs or threatens to immediately employ physical force upon another with the purpose of committing a theft or resisting apprehension immediately thereafter and he is armed with a deadly weapon. The commentary found after Ark. Stat. Ann. §§ 41-2101 - 41-2103 (Repl. 1977) states that the focus of robbery has been shifted from the taking of property to the threat of physical harm to the victim; no transfer of property needs to take place since the offense is completed when the physical force is threatened. A persons commits theft of property when he knowingly obtains the property of another person by threat with the purpose of depriving the owner thereof. Thus, the offenses are separate and distinct and not dependent upon the same evidence to support the convictions. See, Britt v. State, 261 Ark. 488, 549 S.W. 2d 84 (1977).

His next allegation attacks the constitutionality of Act 93 and its effect on his sentence. He contends that the use of convictions committed prior to the passage of the Act makes the Act an “ex post facto bill.” Act 93 defines parole eligibility for persons who committed felonies on or after April 1, 1977. Therefore, petitioner is not attacking the validity of the sentence imposed, but rather is attacking the execution of the sentence. A challenge to the manner in which a sentence is being executed is not a proper matter to be considered in a petition for postconviction relief. Houser v. United States, 508 F. 2d 509 (8th Cir. 1974); Lee v. United States, 501 F. 2d 494 (8th Cir. 1974).

Finally, petitioner alleges that it is unconstitutional to charge by information without the safeguard of a grand jury indictment. We have consistently upheld the constitutionality of our procedure. McCree v. State, 266 Ark. 465, 585 S.W. 2d 938 (1979).

Accordingly, petitioner’s pro se petition for permission to proceed under Criminal Procedure Rule 37 is hereby denied.

Petition denied.

      This opinion was not designated for publication.