text:
    Gribble v. State.
    Crim. 3901
    Opinion delivered October 15, 1934.

      Ml E. Vinson and Reece Caudle, for appellant.

      Mal L. Norwood, Attorney General, and Jobt H. Caldwell, Assistant, for appellee.
   Baker, J.

On tbe 2-7'th day of February, 1934, the grand jury of Cleburne County returned into open court an indictment charging Leonard G-ribble, the appellant, with murder in the first degree. It was alleged that on the first day of December, 1932, the appellant shot and killed Aubrey Never. The indictment was in the usual form and not questioned, as to its sufficiency, in any particular. The cause came on for trial, and on March 1, 1934, the jury returned into court the following verdict: “We, the jury, find the defendant guilty and fix his punishment at 5 years in the Arkansas Penitentiary.” The verdict was signed by the foreman and the court rendered judgment upon it on the 3d day of March, 193'4. The motion for a new trial was filed in due time, overruled and appeal has been duly granted.

The facts necessary for the discussion of the case and errors alleged and set up in motion for new trial are about as follows: On December 1, 1932, Oren Kever and Aubrey Kever, together with their uncle, Willie Southerland, went to Leonard Gribble’s place of business in Heber Springs, and immediately upon their arrival a controversy arose, and Gribble ordered them to take their truck, which they had driven to his garage, or filling station, and move it away.

Prior to that time Aubrey Kever and Leonard Gribble had had some disturbances, and at one time, fixed by different witnesses at a period from two to four years prior thereto, had gotten into a fight, and Gribble had struck Kever with a wrench. Gribble testified that almost constantly since that time he had been pursued and taunted by Kever, who was always seeking a renewal of the former difficulty; that on the occasion of the fight, when he had struck him with the ■wrench, Kever was drinking, and that he had led him away from his garage two or three times, but that Kever followed him back, and assaulted him by kicking him, and that he, Gribble, was trying to close the door of his office, or shop, to prevent Kever from entering, and was finally compelled to strike Kever with a wrench, in order to protect himself, and he had finally called officers to take Kever away. About the first of the next month he had met the two Kever brothers on the sidewalk, and that Aubrey, particularly, had tried to fight, but he (Gribble) finally got away from him; that later, Kever had come to his place of business and a Mr. Eaekley took him away on that occasion, and that Kever left threatening him with the words “I’ll get you in time”; that a short time before the killing Aubrey Kever had tried to block the highway with a truck to keep Gribble from getting by. That there were not two months in the two years from the time of the first disturbance but that Aubrey Kever came in contact with him. He had heard of the trouble Never had had with Gbrie Logan, with the. Birds, and several others; that on this occasion, the day of the killing’, when Aubrey Kever, Butch Kever and Willie Southerland drove up to his place of business, he waited until they had gotten out of the truck and walked around by the truck, and that he then went out, spoke to them, and asked what he could do for them. Aubrey asked for Fitzgerald, and, upon his answer, Aubrey said: “I don’t cafe nothing about talking to you”; that his response was, “If that’s the way you feel about it, go ahead and much obliged”; that he started then to pass between Aubrey Kever and a concrete pillar; that Kever blocked his way; that he turned and went around another way and Kever started after him; that Kever then said that he had hit him once with a wrench and wanted to know if he thought he could do that again; that he asked him to leave; that Kever did not stop but started running in; that he ordered Kever to stop; that he did not; that Kever had his hands in his pockets; that the other two, Oren Kever and Southerland, had gotten in the truck and went driving away. In the meantime G-ribble had picked up his shotgun, which was inside his office and that, when Kever refused to stop, he shot him.

'Considering the evidence as offered, it tended to show that Kever, the man who was killed, was frequently in disturbances with other people in the community; that he was somewhat persistent in trying to follow up and settle his original quarrel with Gribble, and some of the evidence is to the effect that at the time he was killed he had, perhaps, gone to Gribble’s garage to see Fitzgerald, at Fitzgerald’s suggestion, to collect from Fitzgerald some amount of money owing him by Fitzgerald, but we think that the evidence, with a fair degree of clearness, shows that Cribble did not know that that was the purpose of the visit there, and that he had a right to presume that Kever had returned for the sole purpose of renewing the old difficulties. Attention is called to this fact for the reason that it arises in one of the assignments of error set up in the motion for a new trial, which will be discussed later.

The foregoing is a sufficient, statement of the facts to permit a discussion of the questions presented to us in the motion for a new trial.

The first matter discussed in appellant’s brief is the form of the verdict: “We, the jury, find the defendant guilty and fix his punishment at five years in the Arkansas Penitentiary.” The question raised under this allegation of error arises out of the construction of § 3205, Crawford & Moses’ Digest, which reads as follows: “The jury shall, in all cases of murder, on conviction of the accused, find by their verdict whether he be guilty of murder in the first or second degree; but if the accused confess his guilt, the court shall impanel a jury and examine testimony, and the degree of crime shall be found by such jury.”

The form of verdict, above quoted, does not say in express language whether the defendant is guilty of murder in the second degree or voluntary manslaughter. If the effect of it should be determined by reference to the penalty of five years in the penitentiary, then it is insisted, as we understand from appellant’s argument, that the jury might have meant a conviction for murder in the second degree, the lowest penalty for which is five years in the penitentiary. But the penalty for voluntary manslaughter is from two to seven years. The court holds that, by the omission from the verdict of a statement showing the degree of the offense, it was the intention of the jury to acquit the appellant of murder in the first and second degrees; that the mandate of the statute, above quoted, is such that, had it been the intention of the jury to convict the appellant of murder, it would have said by the verdict: “We, the jury, find the defendant guilty of murder in the second degree, and fix his punishment at five years in the Arkansas Penitentiary,” and that by the omission of the words “of murder in the second degree,” it is clear that the effect of the verdict was, first, an acquittal of murder, and, second, a conviction for the next highest offense, voluntary manslaughter.

The writer of this opinion is not in full accord with the reasoning of a majority of the court.

It must be agreed, however, by all, that upon a conviction for murder, the statute requires that the verdict of the jury shall state in express terms the degree of the offense, — that is, whether it be murder in the first degree or murder in the second degree. If acquitted of murder, then the next offense, which is included in the indictment, is voluntary manslaughter, and there is no mandate, by statute or otherwise, requiring that the jury shall state the degree of the offense upon which he is convicted, except in murder, and the general verdict, as returned by the jury in this case, is sufficient. Appellant’s case has been briefed on this point, upon the theory that the only interpretation to be placed upon the verdict must arise out of the verdict itself, and that, inasmuch as the five year sentence is affixed to it, and that is the lowest penalty for murder in the second degree, it must have been the intention of the jury to convict the defendant of murder in the second degree. Of course, if that were true, the verdict as returned could not be a basis for a valid judgment. This contention is not without authority to support it. 2 Bishop’s New Criminal Procedure (2d ed.), p. 870; Curtis v. State, 26 Ark. 439; Fagg v. State, 50 Ark. 506, 8 S. W. 829; Wallace v. State, 180 Ark. 627, 22 S. W. (2d) 395.

It therefore follows that the only conclusion that can be reached as to this general verdict, without impeaching it, and that is not our duty or obligation, must be to interpret it that the jury found the defendant guilty of voluntary manslaughter and the penalty fixed by the jury is not inconsistent with this holding.

It is upon this point only that the writer has not been in complete agueement with the other members of the court.

This construction and interpretation of the verdict, by the court relieves it of the provisions of the statute, and the alleged error'is not prejudicial.

Other questions argued for the reversal of the case is the alleged error of the court in excusing juror John Ghent, juror George Carr, and juror P. W. Davis. These are three jurors, who were excused by the court, as stated in the motion for a new trial, for what is alleged to be insufficient cause therefor. The examination of these jurors, upon voir dire, is not brought forward in the bill of exceptions. We do not know, and cannot ascertain from the transcript filed in this case, the nature or extent of the examination of these jurors, nor can we determine whether or not there was any abuse of the court’s discretion, and it must be presumed by us that the discretion of the court was properly exercised.

It is also alleged, in assignment -No. 8, that the juror, Chastain, upon his examination, stated that he was not related to any party in interest, either by blood or marriage, and that the. defendant, appellant herein, has since been informed and believes that said juror’s statement was not correct, but that he is related to the Never family, and that this fact was unknown to the defendant at the time, of the trial.

The same holding as to the examination of this juror, is proper as was stated in the matter of the three above mentioned, whom the court excused. No fact is shown in the bill of exceptions as to the examination of this juror. The bill of exceptions is entirely silent.

It is alleged also, in assignment No. 9, in the motion for a new trial, that one of the jurors, John Bettis, after he had been examined and accepted to try the cause, and had been admonished by the court not to separate himself from the others, did separate himself from the other jurors, as they filed into the jury box and were seated, and went downstairs, below the court room, in conversation with Ray E. Shelby, who had taken more than a passing interest in the trial of the case against the defendant. There is no record made of this incident; at least, it is not brought up in the bill of exceptions. It is not shown that the court’s attention to such matter was called, or whether any examination was made of it, if noticed by the court, nor is it shown that the defendant at the time, objected. We have only the statement contained in the motion for a new trial.

• An opinion as to the qualifications of jurors, and objections made after the trial, as to their fitness or eligibility, or otherwise, was handed down by us on this date, in the case of Newton v. State, ante p. 789, and it disposes of the objections to such alleged errors in this appeal.

Error is also alleged in permitting the witness, Floyd Beed, to testify over the objections of the defendant, to the effect that Fitzgerald, in the absence of defendant, had invited Aubrey Kever to Grribble’s place to collect some money said to be due him. We see no prejudice in this matter. We presume it was intended to show by this testimony that Kever went to Grribble’s place on an errand of peace and not otherwise. It is apparent that Grribble did not know this fact, and that he had a right to presume, and probably did presume, that Kever came there in a fighting mood, and with the intention only of creating a disturbance, or for a fight with the appellant. Grribble was given the advantage of such presumption, under proper instructions. At least, no question is made of any instruction given or refused, and he had the right to have that matter submitted to the jury.

It is also alleged in assignments Nos. 12 and 13 that there was error in permitting the prosecuting attorney to ask the defendant why he did not have a subpoena issued for a certain witness. We are at a loss to see how this question could be prejudicial, and there seems to be nothing from the defendant’s answer, which would indicate that it was, and also the prosecuting attorney was permitted to ask the defendant how many times he had been married. There is no showing how any prejudice could arise from the question or from the answer made. There is no implication in the question to affect injuriously his character or standing in the community, or any answer that might have been elicited that would have done so. Marriage is not a prohibited status, nor would the questions tend in any way to excite in the minds of reasonable jurors any feeling of distrust or otherwise impeach in any particular the good standing of the appellant.

It frequently happens, and trial judges soon learn, that it is sometimes more expedient to permit attorneys, in the heat of trials, to wander somewhat far afield. It may save time, expense and delay more than would the most exacting niceties and requirements if they were attempted, oil all occasions, to be enforced. At any rate, unless some prejudicial error appears, we must yield to the sound discretion of the trial courts in such matters, where there is no affirmative showing of an abuse of that discretion, which abuse operates to the prejudice of the appellant, we cannot criticize their conduct. It follows therefore that this cause must be affirmed.

It is so ordered.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    Dixon v. State.
    Crim. 3896
    Opinion delivered October 22, 1934.

      P. L. Smith, for appellant.

      Hal L. Norwood, Attorney General, and John H. Caldwell, Assistant, for appellee.
   Smith, J.

This appeal is from a judgment sentencing appellant to a term of seven years in the State penitentiary upon conviction under án indictment charging him with having shot and killed Le Roy Scott. The testimony on the part of the State was to the effect that appellant overtook Scott, who was escorting one Alberta. Furlow to an entertainment, and shot Scott without provocation after the latter had run some distance along the road in which all three of the parties — all of whom were colored — were walking. Appellant admitted having fired the fatal shot, but testified that he fired after Scott had assaulted him with rocks, which were thrown at him by Scott, one. of which struck his hand and bruised it badly. According to the testimony of Alberta Furlow, appellant spoke angrily to deceased when they were overtaken in the road by appellant, and deceased said, “Gro on, Jesse, I am not bothering you,” and appellant said, “You is the one I wants to see.” Following this remark appellant presented a gun, which Alberta had not previously seen, as it was after darkness had fallen. Deceased ran and was pursued up a hill by appellant, and after they had run far enough to be out of sight, but not out of hearing she heard deceased say, “I will run no further; shoot, damn you!’’ And the fatal shot was immediately fired. When Alberta reached the scene of the shooting, deceased was dying, and he died without speaking to her.

There was testimony corroborating and other testimony contradicting the. testimony given by Alberta, but it is unimportant to set it out, as the question of her veracity was one for the jury, and her testimony above recited was sufficient to sustain, not only the verdict returned, but would have supported a conviction for the highest degree of homicide.

Alberta was a married woman, but had not lived with her husband for several years. She was asked if she had not, aftef leaving her husband, lived with deceased as his wife, both in this State and in the State of Oklahoma. She denied that she had. Rass Richerson, her brother-in-law, was called as a witness and was asked whether Alberta and deceased had cohabited as man and wife, but an objection was sustained to the question, whereupon appellant’s attorney stated that, if permitted to answer, the witness would state that Alberta and deceased had lived together, posing as husband and wife.

The record reflects that the objection to the question was sustained upon the theory that the relationship in.quired about was a collateral matter, which was concluded by the denial of Alberta. We do not concur in that view. The testimony should have been admitted as bearing upon the bias of Alberta in weighing her testimony. In the case of McCain v. State, 129 Ark. 75, 195 S. W. 363, a witness for the State in a homicide case was asked if he had not stated, after the killing, that, if the defendant had not shot the deceased, he (the witness) would have done so. The witness denied making the statement, and another witness was called to prove that he did make the statement, but the trial court declined to admit that testimony. In holding this ruling to be error calling’ for the reversal of the judgment, it was there said: “In defense of the action of the court, the rule is invoked that, where a witness is cross-examined on a matter collateral to the issue, his answer can not subsequently be contradicted by the party asking the question. But this rule is not applicable here, for the bias of a witness is not a collateral matter, and, if the witness gives a false answer to a question which would reveal the bias, the falsity of the answer may be shown by other testimony.” (Citing eases.)

Appellant was asked upon his cross-examination if he had not shot at another colored man named Boss Sheridan. It was not contended that he had been convicted for so doing. Carr v. State, 43 Ark. 99. Inasmuch as this incident occurred more than twenty years before the trial, we think it was too remote to have any probative value, and should have been excluded for that reason. Section 1123 of Chapter on ‘ ‘ Criminal Law, ’ ’ 16 C. J., page 581; Taylor v. State, (Tex.) 179 S. W. 113; Beck v. State, 141 Ark. 111, 216 S. W. 306.

He was also asked if he had not shot at Oliver Han-kins, a white man. He denied that he had shot at Han-kins, but admitted that he and Hankins had a difficulty a few years before the trial, but he was not permitted to offer the explanation that he was only fined for a simple assault, as Hankins admitted at the trial that he (Han-kins) was at fault in that difficulty. Trial courts have a wide discretion in the admission of testimony of this character in determining whether proof of moral delinquencies is or is not too remote to have probative value. We think the admission of the testimony in relation to the difficulty with Hankins was not an abuse of this discretion; but we are also of the opinion that, after permitting the State to prove there had been such a difficulty in the cross-examination of appellant, he should have been permitted to make the explanation which he offered to make.

For the errors indicated the judgment will be reversed, and the cause remanded for a new trial.


author: Humphreys, J.

text:
    Freeman v. Jones.
    4-3690
    Opinion delivered October 22, 1934.

      W. II. Gregory, tor appellant.

      Bnmdidge & Neelly and Rose, Hemingway, Cantrell & Loughborough, for appellees.
   Humphreys, J.

The question involved on this appeal is whether the city of Searcy may issue revenue bonds to procure $45,000 with which to construct additional sewer mains, and a disposal plant to dispose of the sewage from all the sewer mains in said city, including the present mains, which were built by Sewer Improvement District No. 1 in the year 1900, and which were taken over by the city for the purpose of maintenance and operation, provided the bonds are made payable solely from the revenues of the new improvements.

When the sewer system was constructed, a small septic or disposal plant was built to dispose of the sewage. The septic plant is worn out and allows raw sewage to pass through it into a branch running around the east side of the city and north into Gin Creek. These, streams are dry most of the time during the summer months, and the raw sewage collects in pools, endangering the health of the inhabitants as well as emitting offensive odors. The State health authorities have condemned the septic tank as being a menace to the health of the community. Neither the city nor the improvement district has the money to build a disposal plant of sufficient .size to carry the increased load due to the growth of the city. There is a large territory within the city that cannot be served by the sewer system as originally constructed, and the proposal is to build new mains through this territory and, instead of tying the old mains into the old septic tank, to connect them with the new mains, which are to be built out to and tied into the new disposal plant in the country. The proposal is to charge, each house serviced exclusively by the new mains and disposal plant $1 a month, and those situated in the original district 50 cents a month for the use of the new mains and disposal plant. In keeping with this proposal, said city passed an ordinance authorizing appellees to issue revenue bonds for $45,000 payable to the Public Works Administration of the United States, which are to be paid out of the proceeds to be derived from the monthly charges aforesaid for the use of the. mains and disposal plant, the Public Works Administration of the United States having agreed to pay par for the bonds and in addition to make a free grant of $10,000 to the city to aid in the construction of said mains and disposal plant, the estimated cost thereof being $55,000. Appellant, an owner of property in the city, instituted this suit to enjoin appellees from issuing the bonds and proceeding with the construction of the new mains and disposal plant on the ground that the city was without authority to construct the improvement, and issue revenue bonds to pay for same.

The ordinance was passed pursuant to act 132 of the Acts of the Legislature of 1933. Section 1 of said act provides: “That every city (of either the first or second class) and town in the State of Arkansas is hereby authorized and empowered to own, acquire, construct, equip, operate and maintain within and/or without the corporate limits of such city or town, a sewage collection system, and/or a sewage treatment plant or plants, intercepting sewers, outfall sewers, force mains, pumping stations, ejector stations and all other appurtenances necessary or useful and convenient for the collection and/or treatment, purification and disposal, in a sanitary manner, of the liquid and solid waste, sewage, night soil and industrial waste of such city or town, * * * and to issue revenue bonds to pay the cost of such works and property, * * * payable solely from the funds provided under the authority of this act. ’ ’

This section of said act is unambiguous, and in unmistakable language authorizes a city of the first or second class or any town in the State of Arkansas to construct a sewage collection system within or without the city limits and to issue revenue bonds to pay the cost of same out of the proceeds to be derived from the new construction. Appellant contends that no authority exists under the statute for a city to build additional sewer mains and disposal plants to connect with and dispose of sewage from mains built and owned by an improvement district, and not owned by the city itself. In other words, the interpretation of the statute by appellant is that, before a city can construct additional mains and disposal plants which are necessary, it must acquire the ownership of the original sewer system, which was held for operation and maintenance. We find nothing in the act to that effect. The construction of the new mains and disposal plant and the ownership of them by the city does not in any wise disqualify the city from continuing to hold the. original sewer system for operation and maintenance. It does not destroy any interest the improvement district may have, if any, in the original sewer system. Making use of the new construction as an outlet for the original sewer system does not impair the usefulness of the original system. The most that can be said of it is that the new construction is an aid and help to the old system without becoming an integral part of it. It appears that the old system can serve only a part of the city, and certainly the statute should not receive an interpretation which would prevent the city from constructing a sewage system to serve other territory in the city without first becoming the owner of the original system. We interpret the statute as conferring authority upon cities and towns in Arkansas to construct sewer systems wherever and whenever needed, and to issue revenue bonds to pay for the construction thereof out of proceeds to be derived from the new construction itself.

Act 132 of the Acts of 1933 authorizing the passage of the ordinance in question does not offend against amendment No. 13 of the Constitution of 1874 for reasons appearing in the case of Snodgrass v. Pocahontas, post p. 819, this day handed down.

It does not appear that the charges made against the owners of the several houses in the city are unreasonable, and it goes without saying that cities and towns may impose a reasonable charge upon owners of property connected with a sewer system owned or operated by the city or town.

No error appearing, the decree is affirmed.


author: Mehaffy, J.

text:
    Snodgrass v. Pocahontas.
    4-3691
    Opinion delivered October 22, 1934.

      A. J. Cole, for appellant.

      W. J. Schoonover and Walter L. Pope, for appellees.
   Mehaffy, J.

In the year 1917 there was organized in the city of Pocahontas, a city of the second class, an improvement district for the- purpose of installing a waterworks system. Benefit assessments against the real estate within the district were levied, bonds sold, and the waterworks installed. A sufficient amount of benefit assessments were, collected, to retire the bonds, and the last bond matured and was paid in 1927. Upon the completion of the waterworks 'system, it was taken over and managed by the city council of the city of Pocahontas. The users of water paid rentals, the same being paid into the treasury of the city of Pocahontas.

The State. Board of Health issued an order requiring the city to remove the intake pipe, through which the water was taken from Black River, to a point some distance upstream from where it was located. The order of the Board of Health was issued for the purpose of obtaining pure water, water that had not become polluted by waste matter reaching the river from the city.

It is claimed that the machinery used in the pumping-plant installed in 1917 is antiquated, worn, and needs replacement, and that when the intake pipe is moved upstream, it will be necessary to build a new pumping house and install new machinery therein; that these new constructions and changes will cost approximately $31,500.

The city of Pocahontas has arranged to issue bonds to be retired solely from the rentals collected from the waterworks plant. An ordinance, was passed pursuant to the provisions of act 131 of 1933. The ordinance provides that the value of the present system is $8,000, and the value of the new construction is $31,500, making a total value of $39,500. This ordinance binds the city to set aside, for use solely for the purpose of paying said bonds, 79.75 per cent, of the revenues derived from the waterworks system, it being estimated that this percentage is the proportion of value, that the improvements have to the value of the existing plant.

The city of Pocahontas is about to borrow money from the Federal Emergency Administration of Public Works of the United -States of America, and issue bonds, pledging the rentals to be received from the users of water, for the payment of said bonds.

Suit was brought in the Randolph Chancery Court praying that a permanent injunction be issued enjoining and restraining the appellees from proceeding under said ordinance, and from taking any further steps looking to the issuance of revenue bonds under act 131 of 1933.

The appellees filed a general demurrer which was sustained by the court, and the complaint dismissed, and the case is here on appeal.

As stated by the appellant, the question before the court is whether or not the city of Pocahontas has authority under act 131 of 1933, to construct the betterments and improvements contemplated by the city.

Section 1 of said act 131 provides: “That any city or incorporated town in the State of Arkansas may purchase or construct a waterworks system of construct betterments and improvements to its waterworks system as in this act provided. ’ The said act then provides for the manner in which the city may purchase or construct the improvements.

It is contended by the appellant that the authority of the city of Pocahontas to purchase or construct the improvements does not exist, and several cases are cited and relied on. We do not discuss these cases for the reason that said act 131 expressly authorizes cities to construct waterworks systems and betterments and improvements, and prescribes the manner in which these things may be done, and this act was held constitutional, except as to the provision of the act exempting the bonds from taxation, and that provision was held void.

Attention was called to the provision in the statute making the provisions and sections of said act severable, and the court said, speaking- of acts 131 and 132 of 1933: “These acts are both complete and capable of -being executed in accordance with the legislative intent expressly declared in the section quoted, and the acts must therefore be upheld, notwithstanding this exemption and its consequent unconstitutionality as applied to persons or agencies whose property would otherwise be subject to taxation., Jernigan v. Harris, 187 Ark. 705, 62 S. W. (2d) 5.

It is next contended by the appellant that the city of Pocahontas has no authority because it does not own and operate the system. It is admitted that, if the city had acquired the waterworks system and had title thereto, and were operating the same, there could be no question of its authority to proceed to construct improvements and betterments. The waterworks system of Pocahontas was installed and operated by an improvement district in 1917. Bonds were issued and the property assessed for the purpose of paying the bonds, and the bonds were all paid, the last one being paid in 1927. The city of Pocahontas in 1927 took over the waterworks system, and has operated it since that time, and the betterments and improvements, which are entirely new, are estimated to be 79.75 per cent of the value of the entire plant.

Among other things, act 131 provides: “Whereas, there are now in use works (owned by others than municipalities) of the character authorized by this act which require immediate repairs, improvements and/or extensions that can not be effected or accomplished because of the inability to finance same under existing laws, though the necessity for such repairs, improvements and extensions menaces the public health and safety; and this act provides a method whereby such works could be acquired by municipalities, and the necessary repairs, improvements and/or extensions promptly made.”

It has been held by this court that when improvements of this kind have been completed, they become subject to the control of the city, and that the board of commissioners thereafter have no authority to bind itself as a board. In other words, the improvement was controlled by the city, and it had a right to make improvements, betterments and additions, just as it had authority to construct a new plant.

In the case of Mississippi Valley Power Co. v. Board of Improvement Waterworks Dist. No. 1, 185 Ark. 76, 46 S. W. (2d) 32, the court held against the contention of the appellant here.

Besides, the debts of the improvement district all having been paid, and the system turned over to the city in 1927 and operated by the city since that time, the improvement district had no interest whatever in it. But, if it had an interest, the city was maintaining the plant as well as operating it, and the improvements and betterments involved here constitute a separate, distinct improvement, which the city had a right to make.

Section 10 of act 131, among other things provides for acquisition or construction of a waterworks system in a municipality which has not theretofore owned and operated a waterworks system, that in the ordinance declaring the intention to issue bonds, and providing details in connection therewith, the council shall provide, find and declare in addition to the other requirements set out in the statute, the value of the then existing system and the value of the property proposed to be constructed, and the revenues derived from the entire system when the contemplated betterments and improvements are completed shall be divided according to such values and so much of the revenue as is in proportion to the value of such betterments and improvements, as against the value of the previous existing plant as so determined, shall be set aside and used solely and only for the purpose Of paying the revenue bonds issued for such betterments, together with costs, etc.

The. council of Pocahontas made the estimate of the value of the properties, and the ordinance provides for setting aside and using solely for the payment of the new improvements, that per cent, of the revenue which the new construction bears to the whole property.

The ordinance provides for the! issuance of the proper revenue bonds or other evidence of indebtedness exclusively against the. plant and income therefrom, and further provides that it will set aside and use only and solely for the purpose of paying revenue bonds, 79.75 per cent, of the revenue derived from the waterworks system. In other words, they provide for issuing evidence of indebtedness to be paid solely from the. revenue of the new improvement. That is, they take that per cent, of the revenue which the value of the new improvement bears to the value of the whole plant, and pledge that to secure ths payment of the indebtedness.

Amendment No. 13 to the Constitution provides, among other things, that a city or town shall never issue any interest-bearing’ evidences of indebtedness except bonds to pay for indebtedness existing at the time of the adoption of the Constitution of 1874, but provides that cities of the first and second class may issue, by and with the consent of a majority of the qualified electors of said municipality voting on the question at an election held for the purpose, bonds in sums and for the purpose approved by such majority at such election as follows. It then provides among other things, for purchasing, extending, improving, enlarging, building or construction of waterworks, etc.

But these bonds can be issued only by and with the consent of a majority of the qualified electors voting at the election.

Constitutional provisions should receive a reasonable. construction, the purpose being to ascertain the meaning of the framers of the provision of the Constitution, and the intention of the electors in adopting the provision. It was manifestly the intention of the framers of Amendment 13 to prohibit cities and towns from issuing interest-bearing evidence of indebtedness, to pay which the people would be taxed, or their property appropriated to pay the indebtedness, or any indebtedness that placed any burden on the taxpayers. It was not the-intention to prohibit cities and towns from making improvements and pledging the revenue from the improvements- so made alone to the payment of the indebtedness.

“The fundamental purpose in construing a constitutional provision is to ascertain and give effect to the intent of the framers and of the people who adopted it. The court therefore should constantly keep in mind the object sought to be accomplished by its adoption, and the evils, if any sought to be prevented or remedied.” 12 C. J., 700.

The construction of a constitutional provision should be uniform, so that it will operate at all times alike and in the same, manner with reference to the same subjects. 12 C. J., 718.

Amendment No. 13 has heretofore been construed by this court, and it has been held that where the debt is to be paid out of the receipts derived from the operation of the system, and not out of funds belonging to the city, the indebtedness is valid and not prohibited by Amendment 13. McCutchen v. Siloam Springs, 185 Ark. 846, 49 S. W. (2d) 1037; Jernigan v. Harris, supra. Therefore the pledge by the city of Pocahontas of the revenue derived from the improvement to pay the price of the improvement is valid.

It appearing that the improvement is to be paid solely from revenue derived from the improvement, the ease must be affirmed.


text:
    Jones v. State.
    Crim. 3897
    Opinion delivered July 2, 1934.

      John Owens, for appellant.

      Hal L. Norwood, Attorney General, and Pat Mehaffy, Assistant, for appellee.
   Smith, J.

Appellant was tried and convicted in the court of a justice of the peace upon a charge of transporting intoxicating liquors, and duly appealed to the circuit court, where he was again tried and convicted, and he has prosecuted this appeal to reverse the judgment of the circuit court. A reversal of the judgment is asked upon the ground that the evidence was insufficient to sustain the conviction, and no other question is presented.

The sheriff of the county and his deputy suspected that appellant had whiskey in his automobile, and they followed him in their car as he drove out of the town of Murfreesboro in his. They followed him for about a mile out of town on the road to the diamond mine. Appellant stopped on the side of the road, and got out of his car, but when he saw the officers approaching he got back in the car and started driving off. He drove only a short distance, when he was commanded to stop his car, and upon the failure of appellant to obey the command the sheriff fired his pistol. Appellant then stopped his car, and when the officers went to it they found the floor of the car wet with whiskey and a lot of broken glass and the rim of a fruit jar on the floor of the car.

It is not certain when the whiskey was placed in the car, but it is not only fairly inferable but the conclusion appears to be inescapable that when appellant realized he was being followed he sought to dispose of the whiskey, and breaking the jar which contained it was the method employed for that purpose. If the liquor was in the car — and it was — although the vessel which contained it had been demolished, it had necessarily been transported for some, appreciable distance, and the verdict may not, therefore, be said to be unsupported by sufficient testimony.

The case on the facts is not unlike that of Walbert v. State, 176 Ark. 173, 2 S. W. (2d) 17. There officers had followed a car in which it was suspected that intoxicating liquor had been transported for a quarter of a mile. When the car was overtaken no liquor was found in it, but liquor was found near the place where the car had previously stopped. It was held that this testimony was sufficient to support the finding that the liquor had been transported in the car.

In the case of Locke v. Fort Smith, 155 Ark. 158, 244 S. W. 11, it was said: “* * * the Legislature only intended to make criminal the removal of intoxicating liquors from one locality in the State, or in a city or county, to another locality in the State, or city or county. These places must be separate and distinct from each other, or the offense under the statute is not complete. To constitute the offense the liquor must be in the act of being conveyed from one objective point to another. The name of one or even both of the places mig*ht be unknown, but it must be shown, inferentially at least, that the defendant was in the act of carrying the intoxicating liquor from one. place or locality to another in order to render him guilty under the statute, or under an ordinance based upon the statute. We think this holding is in accord with Hager v. State, 141 Ark. 419, 217 S. W. 461.”

It is unimportant therefore that the testimony in the instant case does not sufficiently show at what point or place the whiskey was put in the car or its destination. It was being transported, and had been transported, and the'fact that the container was broken and the whiskey had wasted and spread ont on the floor of the car did not affect the criminality of the act.

The judgment must therefore be affirmed, and it is so ordered.


author: McHaney, J.

text:
    Downen v. McLaughlin.
    4-3694
    Opinion delivered October 22, 1934.

      C. T. Cotham, for appellant.

      A. T. Davies and Rose, Hemingtvay, Cantrell $ Loughborough, for appellees.
   McHaney, J.

This case is similar in some respects to those of Freeman v. Jones, ante p. 815, and Snodgrass v. Pocahontas, ante p. 819, this day decided. The city of Hot Springs proposes to issue 4 per cent, bonds to the amount of $175,000 to enlarge certain parts of the main sewers built by improvement districts in 18-84 on Central and Park avenues, and which have been rebuilt twice since by the city with its own funds; to construct two sewage disposal plants outside the city; and to extend the main sewers to the disposal plants. Authority so to do is claimed under Amendment No. 13 to the Constitution. An election was called and held pursuant to ordinance on December 5, 1933, in which a large majority of the qualified electors voting approved the bond issue and the levy of a special tax on the real and personal property to pay said bonds.

The total cost of doing the. proposed work is in excess of $300,000. The city has made a contract with the Public Works Administration of the United States, whereby the Government will buy said bonds at par for cash, and, in addition, will make a free grant to the city of $43,000. The Department of the Interior will donate $82,000, making a total of $300,000. The plans prepared by the city engineers and approved by the city council, call for an estimated expenditure, in constructing the two disposal plants and in extending the. main sewers to said plants, of $261,471, and for enlarging those parts of the main sewers on Central Avenue from Superior Bath House to Arbor Street and on Park Avenue from Arbor Street to Mt. Yalley Street, the estimated cost is only $39,295, or a total estimated cost of $300,766.

Appellant brought this action to enjoin the issuance of said bonds and the levy of a tax on his property, claiming “that there is no authority under Amendment No. 13 for a city to issue bonds and levy a tax to pay for constructing the sewers and disposal plant to connect with and dispose of the sewage from or for enlarging parts of sewer mains built by improvement districts and not by the city itself, and that therefore said bonds and tax levy are void.”

Appellees answered asserting power and authority and the reasons for the necessity of the improvement, to which a demurrer was interposed and overruled. Appellant elected to stand on his demurrer, and his complaint was dismissed for want of equity.

The questions presented by this appeal, as stated by counsel for appellant, are “whether the city of Hot Springs has the authority to issue bonds and levy a tax for constructing sewers and disposal plants to connect with and dispose of the 'sewage from the sewer mains built by improvement districts and for enlarging parts of main sewers built by the improvement districts.” It is conceded that the city could make these improvements to a sewer system owned by the city. The question is: Can the city make these improvements to a system built by improvement districts?

As to that part of the proposed improvements consisting of the construction of two disposal plants and the laying of new sewer mains connecting all the old mains in the city (built by improvement districts) with such disposal plants, the case is ruled by the. decision of this date in the Searcy case, Freeman v. Jones, No. 3690, ante p. 815; The cases are identical in this regard. Only the method or manner of raising funds to retire the bonds is different. There a monthly service charge is made. Here the electors by vote have levied a tax. As to that part of the proposed improvement consisting of laying additional or new mains alongside of the old mains on Central and Park avenues, there can be no question about the power of the city to do so. As shown above, these particular sewers were constructed in 1884 and were taken over by the city to maintain and operate. The city has twice rebuilt them with its own funds. To all intents and for all purposes, the city is the owner thereof and may operate, improve and reconstruct them so as to serve the best interests of the people of the city. See act 349 of Acts of 1927, p. 1107. There is nothing in the case of McCutcheon v. Siloam Springs, 185 Ark. 850, 49 S. W. (2d) 1037, that militates against this holding. While the sewers were built by improvement districts, the city is the actual owner now, and it is required to operate and maintain them.

The city has literally complied with Amendment No. 13 to the Constitution, and this amendment specifically confers power on cities of the first and second class “for the construction of sewers and comfort stations,” and for the issuance of bonds to pay therefor and the levy of a tax to retire the bonds. Here the. city is constructing sewers, and it can make no difference that the sewers so constructed tie into sewers theretofore built by improvement districts.

Let the decree be affirmed. It is so ordered.


author: Butler, J. Johnson, C. J.,

text:
    Johnson v. Dermott (1) Parker v. Little Rock (2)
    No. 4-3582 No. 4-3581
    Opinion delivered October 22, 1934.

      Golden & Golden, for appellants.

      John Baxter, John Sherrill and Frank Wills, for appellees.

      Fred A. Isgrig and Harry Robinson, for appellant.

      Ed. I. McKinley, Jr., and Carl F. J aggers, for appellees.
   Butler, J.

In the case first styled, the appellants, who allege that they are owners of real estate in the city of Dermott, brought suit against the mayor and recorder and members of the city council of Dermott, and against A. Prothro, as the only surviving member of the Board of Waterworks Improvement District No. 1 and of Light District No. 1 of the city of Dermott, to enjoin the performance of a contract between the city of Dermott and the Federal Emergency Administration of Public Works in Washington, D. C.

On the same day the complaint was filed, the appellants filed an amendment thereto, and to the complaint as amended appellees demurred. The demurrer was sustained, and the appellants, electing to stand on the allegations of their complaint, have appealed.

The substantial allegations admitted by the demurrer to be true are these: In 1903 the city of Dermott granted to W. H. Lephiew an exclusive franchise to construct a water and light system within its borders, and on the 15th day of January, 1908, for value, the city procured the cancellation of the franchise and took over the equipment and distribution system constructed by Lephiew to furnish water and light to the city. In the same year two improvement districts were organized each including the entire area within the corporate limits of the city, styled respectively, Water Improvement District No. 1 and Light Improvement District No. 1. Assessments of benefits were levied to construct each improvement, and in 1909 bonds were issued and sold by the districts in the aggregate sum of $23',000. A small part of the assessments was collected, the exact amount of which it is impossible to ascertain. However, there could have been not more than one annual assessment of benefits collected, as the city took over the improvements in 1909, since which time no other assessments have been collected.

On the 13th day of March, 1929, the city purchased six acres of land, the conveyance being made to the “Incorporated Town of Dermott, its successors or assigns.” On this property the city dug the wells and erected the tank for the storing of water to be distributed to its citizens and built a brick building for housing the light plant. The purchase money for the Lephiew franchise, the equipment installed by him, and the six acres of land was derived from, and paid out of, the general revenue. of the city. Since 1909 the city has operated both the water and light systems as municipal enterprises without objection from any source and without collecting further assessments of benefit and has paid the bonded indebtedness and all other obligations of the districts out of the general revenues of the city. Beginning with the year 1909, and since that year, the city applied the income derived from the water and light systems to the general revenues of the city, and as it grew it extended the facilities of both plants commensurately, so that now these systems are worth in excess of $100,000, and, since 1909, the improvement districts have not attempted to function in any particular.

The city of Dermott, on November 29, 1926, entered into a lease agreement with the Arkansas Power & Light Company to maintain and operate the light plant and to furnish the service for which it was designed. This contract is now in force, and the light plant is being operated under the provisions of this lease.

From these allegations, it appears that the city of Dermott is not operating the water and light systems as trustee for the improvement districts, but as owner, and such it appears to be in fact.

The city applied to the Federal Emergency Administration of Public Works at Washington, D. C., for a loan from the proceeds of which it is proposed to construct a city hospital. The application for the loan has been approved, and it was required of the city that it enact an ordinance embodying therein the terms of the contract upon which the loan was to be made. Pursuant to this requirement city ordinance No. 442 was duly enacted, which recites at length the terms of the loan and the manner of its disbursement and repayment. Upon the question of the security therefor, the contract, as it appears in the city ordinance above referred to, contains the following recital: ‘ ‘ (h) Security. Special obligations of the borrower, secured by a first lien upon, and payable from, a first pledge of the gross revenues of the municipal waterworks system, after deduction of reasonable operation, maintenance, and repair expenses, and additionally secured by a first pledge of the lease rentals from the municipal electric light system.”

Plaintiffs seek to enjoin the erection of the hospital under the provisions of the ordinance, and question the power of the city to make the contract which it evidences, or to give the pledge for the repayment of the loan recited above. The complaint praying that relief recites the fact that, since taking over the two plants and discharging their obligations, the city has used for its own purposes the revenues derived from the plants in excess of the cost of maintenance and operation, and that it is proposed to devote and pledge this excess to the repayment of the Federal loan.

It may be said that it is the city’s duty to 'see that these plants are maintained and operated, and that it may not apply to any other municipal purpose any of the revenues derived from these, plants, or either of them, required for the purpose of maintenance and operation. But it may also be said that the loan agreement and the. city ordinance recognize this obligation and pledge only-the excess revenues “ after deduction of reasonable, operation, maintenance, and repair expenses” of the waterworks system. The. lease of the light plant imposes these charges on the lessee, Arkansas Power & Light Company, as a part of the consideration for that lease, so that no sum is pledged until these charges have been first paid.

It is also alleged in the complaint that the city has been using, and proposes to use, as a part of its general revenue, the profits derived from the operation of these plants after maintenance has been provided for. We know of no constitutional or statutory objection to this being done.

In the case of Bourland v. Southard, 185 Ark. 627, 48 S. W. (2d) 555, it was alleged that a city improvement district of the city of Fort Smith had improved a ¡street in that city with the proceeds of a bond sale. The city commissioners were ex-officio commissioners of the city improvement district in that city, and had taken over the maintenance of the street as a part of their statutory duty. All the obligations of the district had been paid, including the bonds which it had issued, and there remained on hand about $1,200 which had been derived from, the collection of betterment assessments against the real estate located in the city improvement district. The. city was using this money along with the general revenue for general city purposes, and the owners of property within the improvement district brought suits for an accounting of the revenues of the district and to restrain their diversion. In granting the relief prayed it was there said that the propérty owners in a local improvement district have an interest in the funds of the district, and that it is an impairment of their vested rights to divert the betterment assessments which had been collected to uses other than for the benefit of the owners, and that “the commissioners cannot therefore lawfully expend any of the money of the improvement district for general expenses of the city or for paying employees or officers of the city. If they could require the improvement district to pay any part of the- expenses of the city, they could require it to pay all. The taxpayers of the district can be required to pay the assessments only because their property is benefited equal to the amount they have to pay.”

We have before us an entirely different question in . the instant case. There is involved here no issue of the improper diversion of betterment assessments, as no assessments of betterments are being collected against the-property in the district and none have been for a number of years past. In the discharge of the. duty to maintain and operate, the city has a discretion as to the manner in which that duty shall be discharged. If the plants are operated ah a loss after the city has taken over their operation, it must bear that loss. If a profit is derived after maintenance and operation ^expenses have been paid, it may use that profit for its general purposes. This profit may, therefore, be treated ais a part of the city’s income. It was expressly held in the case of Cumnock v. Little Rock, 154 Ark. 471, 243 S. W. 57, that a city has the power to erect a city hospital, and it may use this general revenue to pay the expenses incurred in that behalf.

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

We have considered this amendment as applied to a great variety of questions, and it will serve no useful purpose to review these cases. In one of them — that of Polk County v. Mena Star Co., 175 Ark. 76, 298 S. W. 1002 — we considered the question of the priority of a county’s obligations where it was unable to pay them all, and we there held, in effect, that those expenses must be first paid which were incurred in the discharge of the essential functions of the county government. We there said that such expenses as assessing and collecting taxes, holding courts, and feeding and keeping prisoners, and certain other obligations which are authorized and imposed by statutory mandate, must be paid before other expenses, even though permissible — if the county could pay for them — but which are not indispensable, may be paid for.

And so also with the cities of the State. They cannot contract away their right to exist and to perform the essential functions for which they do exist. These essential expenses must first be paid. When they have been paid, other revenues not exceeding the total annual revenues may be devoted to other public purposes — such as erecting a hospital.

In this connection it may be said that the complaint alleges that the city has a contract for the maintenance of the hospital after its erection without cost to the city, but the city does propose to borrow money for the purpose of erecting the hospital and to repay it in the manner indicated. It has this authority provided in so doing it does not impair its power to perform the essential functions of its government and existence.

Upon the assumption that the city will have the revenue under the allegations of the complaint which the demurrer filed thereto admits, the decree, overruling the demurrer is sustained.

What Ave have just said disposes of the appeal in the case of Parker v. Little Rock. That case involves the application of the city of -Little Rock, a city of the first class, for a Federal loan with Avhich to construct and equip an airport and the suit, in that case, sought to enjoin the city from entering into a contract with Federal Emergency Administration of Public Works to obtain a loan for that purpose.

Act No. 135 of the Acts of 1929 (Acts of 1929, page 705) authorizes cities of the fifist class to own, maintain, and operate airports in the maimer therein provided. The city of Little Rock appear® to have availed itself of the provisions of this act, and now proposes to borrow money, as above stated, for use in the proper equipment of its airport. To repay this loan, the city proposes to pledge the earnings of the airport and to transfer money from its g’eneral revenue fund to an airport fund in the event the revenue of the municipal airport will not be sufficient to pay the expenses of operation and maintenance, and also- to pay $3,800 per annum from its general revenue fund, or so much thereof as may be necessary, to repay the proposed loan. The city may do this, but in the eAmnt only, as herein previously stated, that it has this money after 2Daying the expenses of its municipal government incurred in the performance of its essential statutory functions.

Subject to this limitation, the decree in each case is affirmed.

Johnson, C. J.,

(dissenting). Because of its insidious characteristics, cancer is said to be the Avorst enemy to mankind extant. -So it is with judicial interpretations and manipulations of constitutional mandate. These cases are notable examples of this insidious and malignant groAvth.

Davis v. Gaines, 48 Ark. 370, 3 S. W. 184, is a fair example of the beginning of this malignant disease, and onr reports from volume 130 until now are full of outrages perpetrated by reason thereof. Although innocent in the beginning, this court found itself in a position from which it could not extricate itself, and the final result was that the farm lands of this State were bonded for millions of dollars which wrought bankruptcy and ruin to a great majority of our overwhelming farm population. • Another notable example of judicial construction to promote expediency is Kirk v. High, 169 Ark. 152, 273 S. W. 389, wherein this court determined that future county revenues might be pledged to secure funds to construct courthouses in the teeth of the fact that this was expressly prohibited by Amendment No. 11 to the Constitution of 1874. It is now a demonstrated fact that a serious mistake was effected by reason of this opinion, and that the simple upholding of the amendment would have resulted in benefit to all. Other examples might be cited but these will suffice to demonstrate the wisdom of following constitutional mandate. To halt these conditions the Legislature of this State, as ag-ent for the people, has been busy for the past several years in an honest endeavor to bring prosperity out of desolation and ruin. The people took upon themselves the task and promulgated constitutional amendments to check this condition of affairs of which Amendment No. 13 of the Constitution of 1874 is a worthy example. Section 1 of this amendment, in part, provides:

“Neither the State nor any city, county, town or other municipality in this State shall ever lend its credit for any purpose whatever; nor shall any county, city, town or municipality ever issue any interest bearing evidences of indebtedness, except such bonds as may be authorized by law to provide for and secure the payment of the indebtedness existing at the time of the adoption of the Constitution of 1874, and the State shall never issue any interest-bearing treasury warrants or scrip. Provided that cities of the first and second class may issue, by and with the consent of a majority of the qualified electors of said municipality voting on the question at an election held for the purpose, bonds in sums and for the purposes approved by such majority at such election as follows:”

Although this amendment was approved by a majority of the people in this State on October 5, 1926, its wholesome provisions have been ignored in the majority opinion.

It appears from the language of the amendment that no bonds may be issued by a municipality in this State save by a vote of the people who are called upon to pay the bills. The majority seem to be of the opinion that, merely because the bond issue here complained of is not violative of Amendment No. 10 of the Constitution, this is all-sufficient. It occurs to me that Amendment No. 13, which is later in point of approval, is of equal importance to that of Amendment No. 10 and should not be ignored under the circumstances here presented.

My conception of constitutional government is that the will of the people is supreme, and when the people have spoken out upon any subject their will should not be ignored. Governments are instituted for the protection of the will of its people, and this is true, even though such expressed will of the people may abolish our sacred form of government. Section 1 of art. 2 of the Constitution of 1874 provides:

“All political power is inherent in the people and government is instituted for their protection, security and benefit; and they have the right to alter, reform or abolish the same in such manner as they may think proper.”

I assert without fear of contradiction that the people had the inherent right to promulgate and pass Amendment No. 13 and thereby prohibit municipalities in this State issuing bonds except by a vote of the people, and, since they have done so in no uncertain terms, their will should be respected by the courts.

In the Little Rock case thousands of dollars of the general revenue of the city is pledged to pay this bond issue. The will of the people of Little Rock has never been consulted about this pledge. I can not conceive of a more deliberate violation of constitutional mandate. Likewise, in the Dermott ease, general revenue is pledged over a term of years to pay a bond issue about which the citizenship of Dermott was never consulted. 1

The majority opinion is bottomed upon the case of Cumnock v. Little Rock, 154 Ark. 471, 243 S. W. 57. A sufficient answer to the applicability of this case is that it was decided on July 3, 1922, and Amendment No. 13 did not become effective until October 5, 1926, more than four years after the rendition of the opinion in this case.

My conception of the law is that Amendment No. 13 provides a plain, adequate and exclusive remedy to municipalities for the purpose therein indicated. No subterfuge should be tolerated by the courts to avoid its plain mandate.

The views here expressed in no wise conflict with previous holdings of this court, to the effect, that municipalities may pledge future revenues accruing from a new improvement when such indebtedness created the improvement, but, when general revenues of the municipalities are pledged, a very different question is presented.

For the reasons stated, I respectfully dissent.

I am authorized to say that Mr. Justice Mehaeey concurs in my views.


author: Butler, J.

text:
    Bohlinger v. Christian.
    4-3698
    Opinion delivered October 22, 1934.

      Pettit db Meek, for appellant.

      Majors $ Robinson and Strait & Strait, for appellee.
   Butler, J.

Tell County is entitled to two representatives. Following the general Democratic primary, held August 14, 1934, the Democratic Central Committee of that county met on Auguist 17 after the election to cast the returns thereof and issued certificates of nomination for the offices of representative to E. H. Cheyne and to the appellee, J. A. Christian.

The appellant brought this suit against the appellee, contesting his right to the nomination. He alleged that E. IT. Cheyne, J. A. Christian and himself were candidates for the nomination for said two offices, and that the candidates received — Cheyne, 2,652 votes; appellee, 2,489; and the appellant 1,754; that the appellee was ineligible to hold the office of representative and was not entitled to the certificate of nomination. Certain specific grounds of ineligibility were alleged.

The appellee demurred to the complaint and, without waiving his demurrer, filed an answer thereto. The case was submitted to the court on an agreed statement of facts, and the court rendered a judgment in favor of the appellee on the merits without passing upon the demurrer. It was agreed as a fact that, according to the official election returns, the candidates received, respectively, the number of votes alleged in the complaint.

On appeal many authorities are cited by the appellant to sustain his contention that the appellee is ineligible to receive and hold the nomination for representative, and much of his brief is devoted to arguments supporting that contention.

At the threshold of the case, however, appellant is met with the proposition that, before he can contest appellee’s nomination, he must allege and show that he, himself, was entitled to that nomination. By act 38 of the Acts of 1933 it is provided that: “No person shall be declared the nominee of any political party at any primary election for United States Senate, United States House of Representatives, State, district or county office unless such person has complied with every requirement of all laws applicable to primary and other elections, and lias received a majority of all the votes cast at snch primary election for all candidates for such office. ’ ’

It seems to be the theory of the appellant that he has received a majority of the votes cast because the votes cast for an ineligible candidate should not be counted. We are unable to agree with this contention.

In support of the contention that he received a majority of the votes cast within the meaning of the law, appellant argues that the decisions cited by appellee have no application. We see nothing in the act relied on to support the argument made, but are of the opinion that the principles announced in those cases are unimpaired and applicable here. The only difference in our primary election laws with respect to the number of votes necessary to entitle a candidate to nomination, is that, before the act of 1933, a plurality of the votes cast for any given office entitled the candidate receiving the same to the nomination, while now the candidate to be nominated must receive “a majority of all the votes cast at such primary election for all the candidates for such office.” This change in the law in no wise affects the rule first announced in the case of Swepston v. Barton, 39 Ark. 549, that “when a vote for an ineligible candidate is not declared void by 'statute, the votes he receives, if they are a majority or plurality, will be effectual to prevent the opposing candidate being chosen, and the election must be considered as having failed.”

In Storey v. Looney, 165 Ark. 455-8, 265 S. W. 51, this court said: “The question necessarily presents itself in the beginning, whether or not appellant is in an, attitude to contest the certificate of nomination awarded to appellee. * * * In order to make a contest for nomination, appellant must ishow that he is entitled to the nomination himself, which he fails to do. * * *”

The doctrine announced in the case of Stvepston v. Barton, supra, was reaffirmed in Collins v. McClendon, 177 Ark. 44, 5 S. W. (2d) 734, in the following language:

“The real issue in this cause was, which candidate received a majority of the legal votes cast? If Barton did not obtain such a majority, but his competitor was ineligible, it by no means follows that he, as the next in the poll, should receive the office. ‘The votes are not less legal votes because given to a person in whose behalf they cannot be counted.’ ”

Of the total number of votes cast for representative the appellant received only 1,754, which, as appears from facts already stated, was not a majority. Therefore, under the principles announced in the easels cited, neither by the pleadings nor proof is the appellant entitled to wage this contest. As said in Saunders v. Haynes, 13 Cal. 145, quoted with approval in Collins v. McClendon, supra: “An election is the deliberate choice of a majority or plurality of the electoral body. This is evidenced by the votes of the electors. But if a majority of those voting, by mistake of law or fact, happen to cast their votes upon an ineligible candidate, it by no mean's follows that the next to him oh the poll should receive the office. If this be so, a candidate might be elected who received only a small portion of the votes, and who never could have been elected at all but for this mistake. The votes are not less legal because given to a person in whose behalf they cannot be counted; and the person who is the next to him on the list of candidates does not receive a plurality of votes because his competitor was ineligible. The votes cast for the latter, it is true, cannot be counted for him; but that is no reason why they should, in effect, be counted for the former, who, possibly, could never have received them. It is fairer, more just, and more consistent with the theory of our institutions, to hold the votes so cast as merely ineffectual for the purpose of an election, than to give them the effect of disappointing the popular will, and electing’ to office a man whose pretensions the people have designed to reject.”

The result of our views is that the judgment of the trial court is correct, and it is therefore affirmed.


author: Baker, J.

text:
    Coleman v. Sherrill.
    4-3706
    Opinion delivered October 22, 1934.

      Dene II. Coleman and W. K. Buddell, for appellants.

      W. M. Thompson and L. B. Poindexter, for appellees.

      Neil C. Marsh, Henry Moore, Jr., Fred 8. Armstrong, Tom W. Hardy, Wilbur D. Mills, Brundidge S Neelly, Miller & Yingling and Culbert L. Pearce, amici cu,riae.

   Baker, J.

By petition filed on the 5th day of September, 1934, E. C. Pansons et al. being more than 15 per cent, of the legal voters of Independence County, Arkansas, invoked the aid of Amendment No. 7 to the Constitution of the State of Arkansas to initiate the Independence County Salary Act, which was designated as “Initiative Act No. 1 of Independence County, Arkansas,” with the title: “An act to fix the salaries and expenses of county officeris and to fix the manner in which such compensations and salaries shall 'be paid and to reduce the cost of county government, and for other purposes.”

On the 18th day of September, 1934, the county clerk decided the petitions were insufficient and defective, and on that day notified W. M. Thompson, one of the attorneys, representing the petitioners, that he had so found, and gave as his reasons therefor: “(1) That the petitions were filed with the county clerk and not with the county judge; (2) That the exact title to be placed upon the ballot was not submitted with the petition; (3) That the exact title to be placed upon the ballot was not submitted to the election commissioners; (4) That the title of said act as contained in said petition was insufficient and defective and not complete enough to convey an intelligible idea, and scope and import of the proposed law and not free from misleading tendencies.” These findings were not signed by the clerk. On the 22d day of September the county judge of Independence County considered the matter and found that there were thirteen petitions containing 573 names, praying that there be submitted to the people at the next general election, to be held November 6, 1934, the question of the adoption of the proposed Initiative Act No. 1 for Independence County, and upon this hearing ordered that the clerk certify to the county board of election commissioners of Independence County said Initiative Act No. 1, using as a ballot title the title of the act.

Attacking this order, the appellants herein filed a complaint in the chancery court against J. Ed. Sherrill, county judge, and Edgar Baker, the county clerk, and against the three members of the board of county election commissioners, and pleaded the facts as have been herein set out, alleging that said order was made after the county clerk had declared the petitions to be insufficient and defective, and had notified the sponsors of that fact, and alleging, that the act of the county court was contrary to, or, at least, not authorized by Amendment No. 7, and prayed that the order made by the county court be declared void; and that the court enjoin and restrain the county clerk from giving notice bjr publication, and from certifying to the election commissioners any copy of said petition, and to enjoin the election commissioners from placing said Initiative Act No. 1 upon the ballot.

Several of the petitioners made themselves parties, filed answer to this complaint, and also filed a cross-complaint against the county clerk and the election commissioners for Independence County. In this they stated that the plaintiffs were taxpayers and legal voters; that the petitions were filed with the defendant, Edgar Baker, as county clerk; admitted that the. county judge, J. Ed. Sherrill, had made the order which was made part of the complaint; denied that this order was contrary to Amendment No. 7; denied that it was made after the county clerk had found the. petitions insufficient and defective. They alleged that the petitions were sufficient, and that they contained in themselves a valid ballot title, and that petitioners were entitled to have the matter placed upon the ballot to be voted upon at the next general election. They alleged also that they were en-titled to have the actions of the county clerk reviewed by the chancery court, and that the county clerk should be required to certify the proposed act to the election commissioners; prayed that the election commissioners and the county clerk be required to do all and singular the duties required of them under the Constitution of the State and the laws thereof, and to certify the results of the election upon said Initiative Act No. 1, and for all other proper relief.

Upon the trial of the matter in chancery court, the court found: (1) That the filing of the petitions with the county clerk was a substantial and sufficient compliance with the provisions of Amendment No. 7; (2) That the title of the act contained in the. petition filed with the county clerk is a substantial compliance with' the provisions of Amendment No. 7 of the Constitution, with reference to the filing of a ballot title; (3) That it was not necessary that the ballot title be filed with the board of election commissioners at the time of filing the petition; (4) That the ballot title contained in the petition is sufficient and complete; (5) That said petitions contain the. signature of more than 15 per cent, of the legal voters of Independence County; (6) That the order of the county court approving said petitions and ordering the election thereon was not null and void.

The court dismissed the complaint for want of equity, and ordered and decreed that the county clerk certify the proposed act a's being sufficient, and that defendants in the cross-complaint do and perform all duties as required of them by law to the end that said initiative act be placed upon the 'ballot for the purpose of allowing the same to be voted upon by the legal voters, as to its adoption or rejection at the next general election. It is from this order that the appeal is prayed.

The appeal brings up for our decision the following questions: First, was the title of the act, if it be treated as a ballot title, sufficient? Second, if sufficient, shall the title of the act be treated as the ballot title?

Both questions should be answered in the affirmative.

On the question of the sufficiency of the ballot title, it is argued that § 3' of the act provides for the creation of a new office, a custodian of the county buildings, offices and grounds, at a salary of $50' per month. Section 6 of the act provides that the offices of sheriff and tax collector be severed, and provides for the appointment of a tax collector by the Governor to serve until his successor is elected and qualifies. Section 7 provides that, instead of the sheriff receiving a salary, he shall remain on a fee basis, and the same section provides that the county should furnish bedding, clothing, medicine and medical treatment for prisoners. Section 8 of the act, in addition to fixing the salary of the tax collector, provides that all penalties and fees attaching upon nonpayment of delinquent personal property taxes shall go to the collecting officer who enforces payment. Section 15 provides that all contracts and purchases for supplies and equipment for the several county offices and institutions, amounting to $30 or more, shall be made by the county court, upon invited bids and to the lowest bidder; that most or all of these provisions of the measure are not mentioned or suggested by the ballot title, which should, on account thereof, be declared invalid.

Amendment No. 7 contemplates a liberal construction and, if substantially complied with, tbe proposition should be submitted to the vote of the electors. It provides “that the sufficiency of local petitions shall be decided in the first instance by the county clerk * * * subject to a review by the chancery court,” and also “that, if the sufficiency of the petition is challenged, such cause shall be a preference cause and shall be tried at once, ■but the failure of the courts to decide prior to the election as to the sufficiency of any such petition shall not prevent the question from being placed upon the ballot at the election named in such petition, nor militate against the validity of such measure, if it shall have been approved by a vote of the people. ’ ’

As said in Shepard v. McDonald, 188 Ark. 124, 64 S. W. (2d) 559: “When approved by the electors, it becomes a law, subject to the same rules of construction and interpretation as an act of the Legislature, and its constitutionality may be determined in the same way.” In order that the right to legislate for themselves may be exercised, the people have reserved to themselves the right to pay or give compensation for the circulation of petitions and have provided against otherwise unwarranted restrictions interfering with the freedom of the people to enact their own local measures.

The amendment provides for advertisement or publication, “that all measures submitted to the vote of the people by petition under the provisions of this section shall be published as is now or hereafter may be provided by law.” But it was not intended that the officer to whom the petition was submitted should have entire or exclusive control of the petition, but remedies were provided whereby >such petitions could be brought before the electors of the next general election.

Having in mind these and other provisions of Amendment No. 7, it becomes apparent that a liberal construction, or interpretation, in order to make effectual the. purposes intended, is required. We therefore hold that the title of the act set forth in the beginning of this opinion is sufficient as a ballot title to apprise the people of the general purposes of the proposed law. It is true that from, the title all of the matters dealt with in the petition cannot be ascertained. It does not set forth the fact that the offices of the sheriff and tax collector are to be held by different officers, nor the fact that the county is employing a custodian, or janitor, for its public buildings, and it might perhaps, with equal reason, be suggested that it does not state what any officer would be paid. It does, however, show that, instead of the fee system now prevailing, a salary system is proposed for adoption, and that the expenses of the county offices would be controlled, and that its purpose is to reduce the cost of county government, and “for other purposes.” Of course, the expression “and for other purposes,” separated from the text, would mean very little, but read with the ballot title the voter would understand that related matters or items of the cost of county government were subjects of legislation. Notice is given to those who do not desire to read more than a ballot title that the proposed change from the present system has for its general purpose a reduction of the expenses of county government, and that, if the proposed act receives a majority vote, there will be a readjustment of the compensation paid public officers, and of other expenses.

The real objection urged to the title of the act, which we are now treating as the ballot title, is the fact that it is not sufficiently elaborate. Any other ballot title would be susceptible of the same criticism unless it were in itself a complete abstract of .the act, which would be impracticable under ordinary conditions. It can be said, however, with certainty, that there is nothing in the ballot title that is deceptive or misleading. It is sufficiently complete to apprise any elector of the general purposes of the act.

In the case of Westbrook v. McDonald, 184 Ark. 740, 43 S. W. (2d) 356, the ballot title proposed for the referendum of the act of the Legislature of 1931, amending § 3505 of Crawford & Moses’ Digest, was so framed that a voter might understand that the act was such as to permit the granting of decrees of divorce to applicants who have resided in the State for a period of three months, or more, without proof of any of the causes for divorce. Such was the vice of that ballot title.

It did not submit the proposition of the three months period of residence in the State, instead of a year, as under the law was required to be alleged and established by proof, in addition to the cause of divorce.

The amendment provides also that: “All measures submitted to the vote of the people, under provisions of this section, shall be published as is now or hereafter may be provided by law.” It may be observed that if the ballot title were intended to be so elaborate as to set forth all the details of the act, the publication, or advertisement, might, for that very obvious reason, be omitted. Perhaps, no set rule or formula can be announced as to what a ballot title shall contain, but it may be safely stated that, if it shall identify the proposed act and shall fairly allege the general purposes thereof, it is sufficient.

Any voter, not already having knowledge of the intention of the proposed law sufficiently satisfactory to him, upon the mere reading of the title, would no doubt gain such further information as he might desire from due advertisement of it in his county.

It is .seriously argued that the county judge had no right or jurisdiction to act upon the petition, under act 356 of the Acts of 1927. It is unnecessary in this case to decide the powers of the county court or county judge, as this petition was filed with the county clerk and the question was reviewed by the chancery court after the county clerk had held the proposed act insufficient and defective and set out his reasons therefor.

Section 3' of the proposed act provides for the appointment, by the county judge, of a custodian for the county buildings, at a salary of .$50 per month; such custodian to be recommended by two-thirds of the elective officers, and it is made the duty of the custodian to maintain the .county buildings, offices and grounds in proper, sanitary and suitable conditions, and § 6 of the proposed act provides for a severance of the offices of sheriff and tax collector, and for the appointment by the Governor, of a tax collector, until an election can be had, or until such tax collector shall have been elected and qualified. These must be held more as relating to matters of form, rather than substance, and on that account may be both treated together. By reading § 3 of the act, it is readily determined that the custodian is a janitor, who will look after and keep the public buildings in proper, sanitary and suitable condition. It is not urged or suggested that this is any added expense over and above that now prevailing. In fact, the only difference from the ordinary present management in a matter of this kind is that at least two-thirds of the elective officers must nominate the janitor prior to the county judge’s appointment.

The severance of the sheriff’s office from that of the tax collector is not a creation of a new office, nor is it shown or suggested that this will not redound to the best interests of the county. The two offices are distinct, but, in most instances, both have been filled by the sheriff and his deputies. In this case the people may exercise the right reserved to them and pass the proposed act, and afterwards elect a tax collector, or they may prefer that the sheriff continue to collect taxes.

There is no dearth of authority relating to titles of acts of the Legislature or of city ordinances. Perhaps they do not relate to initiative or referendum measures, but, nevertheless, are in point for .those who may be interested in further academic research.

The general rule has been announced by the Maryland courts. It is one of the States in which there is a constitutional requirement to the effect that acts of the Legislature or city councils shall be confined to one subject set out in the title of the act or ordinance. Chief Justice McShekry says: “It has never been understood that the title of a statute should disclose the details embodied in the act. It is intended.simply to indicate the subject to which the satute relates * * *. When the general subject is indicated, no detail matters need be mentioned in the title. ‘The primary object of the provision, undoubtedly, is to exclude all foreign, irrelevant, or discordant matter from the statute and to confine the statute to the single subject disclosed in the title.’ Phinney v. Trustees, 88 Md. 636, 42 Atl. 58.” Mayor of City of Baltimore v. Stewart 92 Md. 535, 48 Atl. 165, 168. Mayor and City Council of City of Baltimore v. Fuget, 164 Md. 335, 105 Atl. 618-622.

In answer to the second question above, as follows: ‘ ‘ Second, if sufficient, shall the. title of the act be treated as the ballot title?” we suggest that Amendment No. 7 makes no provision or requirement that the measure proposed shall be given a. title. In fact, the. mandate for a ballot title is such as to permit the petitionens to file a separate instrument indicating the ballot title, as was done in the cases of Westbrook v. McDonald, 184 Ark. 740, 44 S. W. (2d) 331, and Shepard v. McDonald, 188 Ark. 124, 64 S. W. (2d) 559, and, by the same authority, when done in that manner, the instrument fixing the ballot title becomes a part of the petition, so, if the ballot title is a part of the petition, the requirement has been met.

We hold therefore that when, in a local measure presented by petition, the title of the measure., when given one, is incorporated in, and made a part of the petition, the said title becomes and is the ballot title.

It is urged further that there was no submission of the ballot title to the county board of election commissioners. Amendment No. 7 does not require, in the matter of county or municipal measures, that the ballot title should be submitted to the board of election commissioners simultaneously with the filing of a petition. It-may be done at any time prior to the time of the preparation and printing of the ballots, and, if so done, it becomes the duty of that board to place the. same upon the ballot. The members of the board of election commissioners of Independence County are defendants on the croisscomplaint and were so ordered by the chancellor trying the cause.

We hold therefore that the title of Initiative Act No. 1 under consideration is sufficient as a ballot title, that there was no error in the. decree in so holding, and in ordering the board of election commissioners to place the same on the ballot.

The case is therefore affirmed.