author: Johnson, C. J.

text:
    Thompson v. Wiseman.
    4-3565
    Opinion delivered October 29, 1934.

      B. Leon Day and Sam Robinson, for appellants.

      Hal L.' Norwood, Attorney Gf-eneral, Earl B. Wise-man and Charles W. Mehaffy, for appellee.
   Johnson, C. J.

Appellants own and operate in public places in this State certain miniature pool tables, marble tables and various types of vending* machines controlled by coin slot devices. By acts 158 and 167 of 1931, amended by act 137 of 1933, the privilege of operating these devices in this State is subjected to a tax.

This suit was brought by appellants against appellee Revenue Commissioner to restrain and enjoin him from enforcing said acts because, as it is alleged, act 158 of 1931 is unconstitutional and void because in conflict with the fourteenth amendment to the Constitution of the United States, and is contrary to and in conflict with § 5 of article 16 of the Constitution of this State; that act 158 of 1931 is void because it did not receive the. necessary vote required by § 31 of article 5 of the Constitution upon passage through the respective houses of the General Assembly; that act 158 is discriminatory against coin operated pool tables, and in favor of standard pool tables, and is therefore void; that act 167 of 1931 repealed act 158 of 1931, in so far as said act 158 applies to miniature pool tables.

Appellee’s demurrer was sustained to this complaint, and this appeal seeks review thereof.

The reasons why these acts are. conceived to be contrary to the Fourteenth Amendment of the Constitution of the United States are not pointed out in briefs, therefore we shall pretermit any discussion thereof.

Appellants’ contention that said acts are contrary to and in violation of § 5 of article 16 of the Constitution of 1874 can not be sustained. This section of the Constitution provides: “All property subject to taxation shall be taxed according to its value, that value to be ascertained in such manner as the General Assembly shall direct, making the same equal and uniform throughout the State. No one species of property from which a tax may be collected shall be taxed higher than another species of property of equal value, provided the General Assembly shall have power from time to time to tax hawkers, peddlers, ferries, exhibitions and privileges, in such manner as may be deemed proper. ’ ’

Appellants’ contention is grounded upon the legal proposition that the Constitution of 1874 limits the taxing power of the. State in two particulars, namely: First, a tax must be ad valorem, equal and uniform; secondly, that the State can not lay a tax for State revenue purposes upon occupations of common right. The contention that the tax here levied is not ad valorem, equal and uniform has no application to the question here under consideration. The tax here levied is upon the privilege of operating pool tables, miniature pool tables or other devices controlled by coin slot machine devices, and such a tax is expressly authorized by § 5, article 16, of the Constitution as heretofore quoted. We stated the applicable. rule in Fort Smith v. Scruggs, 70 Ark. 549, 69 S. W. 679, as follows:

“The subject-matter of this statute comes, we think, within the general law making power of the Legislature, and, if there be limitations forbidding the exercise of this power in that respect, it must be found in the Constitution. But there is none. Our Constitution expressly provides that the Legislature shall have power to tax privileges in such manner as may be deemed proper.”

Again, in Floyd v. Miller Lumber Co., 160 Ark. 17, 254 S. W. 450, we stated the applicable rule in reference to the severance of growing timber from the soil as follows: “Following the lead of the Supreme Court and the trend of our own decisions, and for purposes of uniformity, a thing to 'be desired, a majority of the court, including the writer, have concluded that the tax imposed by the acts is a privilege, and not a property tax. As a privilege tax it is clearly and definitely authorized by the Constitution. ’ ’

Appellants especially rely upon Stevens & Wood v. State, 2 Ark. 291, and subsequent cases of similar effect, as authority for their position that the tax here levied is a property tax.

It is true we held in Stevens & Wood v. State, supra, that all property in this State must be taxed according to its value, and that the tax thereon must be equal and uniform throughout the State, but we also said in this connection that when property was acquired it must be so kept and disposed of as not to injure any paramount, legal right of another or affect injuriously the public morals or public good.

It is perfectly clear that the holding’ of this court in the last case, cited was that the ownership of a pool table was not per se a privilege, but that its use might be determined a privilege and regulated as such. The distinction here pointed out is fully recognized in all our subsequent eases on this subject.

Neither can we agree that the privilege here taxed is an occupation of common right. We have heretofore distinguished the meaning between the words “privilege” and “occupation” as follows: “The words ‘pursuits and occupations’ are synonymous, and are used in their common acceptation to denote the principal business, vocation, employment, calling or trade of individuals that but for some constitutional or statutory inhibition could be exercised and enjoyed as of common right, but the word ‘privilege’ as used in the Constitution of 1868 is not synonymous with the words ‘pursuits and occupations ’. ”

The slot machine devices here in use are automatic and self-operating, therefore need no one to attend upon them, if needed this be important, while being operated; therefore no occupation of common right is here involved. Moreover, the law is well settled in this State that the police power may be. exercised by the Legislature for the protection of the health and morals of the people unrestrained, unless such regulations are so utterly unreasonable in their nature and purpose, as to unnecessarily and arbitrarily interfere with or destroy personal property and rights without due process of law. See Little Rock v. Reinman, 107 Ark. 174, 155 S. W. 105, which was affirmed by the Supreme Court of the. United States in 237 U. S. 171, 35 S. Ct. 511.

The acts here under consideration were a reasonable exercise of the police power, and in no wise- interfere with the rule in reference to occupations of common right.

Next, it is urged that act 158 is void because not passed by a majority vote of two-thirds of both Houses of the Greneral Assembly. This exact question was before us in Stanley v. Gates, 179 Ark. 886, 19 S. W. (2d) 1000, and we there decided the question as follows: “It is conceded that the first two items, viz., charity fund and common school equalization fund, come respectively under the phrases ‘defraying the necessary expenses of government’ and ‘to sustain the common schools,’ but it is insisted that the concluding part of the section providing- that the remainder of the fund be used solely for the purpose of reducing the State tax on property amounts to a violation of the constitutional provision, because such use is not for any enumerated purpose in the section, and is therefore in violation of the constitutional provision, because the act was not passed by two-thirds majority vote in each House of the Legislature. A majority of the court does.not agree with this contention. ’ ’

The doctrine here announced in no wise conflicts with the opinions in Beloate v. Kaufman, 117 Ark. 352, 175 S. W. 87, or Oliver v. Southern Trust Co., 138 Ark. 381, 212 S. W. 77. In the last mentioned cases, we were dealing with a question altogether different from the one here under consideration. A mere reading of the respective cases will differentiate the conclusions reached.

The contention that this legislation is discriminatory in favor of standard pool tables and against miniature slot operated devices is likewise without merit. If the privilege of operating pool tables is one which may bo granted or withheld by the Legislature, then certainly when the privilege is granted it may be upon such terms as the Legislature may prescribe.

It is also urged, that act 167 of 1931 repeals act 158 of 1931. If repeal exists, it must be by implication and not direct, as act 167 carries no repealing- clause. We have always held that repeals by implication are not favored. Baker v. Hill, 180 Ark. 387, 21 S. W. (2d) 867; Massey v. State, 168 Ark. 174, 269 S. W. 567, and cases there cited.

Without setting- out in detail the provisions, of said acts, it may be said that act 158 lays a tax upon the privilege of operating standard pool tables. Act 167 lays a tax upon the privilege of operating miniature pool tables, vending machines, marble machines or any other machine operated by an automatic coin slot device. We can not perceive any invincible repugnancy between the two acts, and are unwilling to hold that act 167 is a substitute for act 158; therefore the one does not repeal the other.

The chancellor’s determinations conforming’ to the views here expressed, the decree based thereon must in all thing’s be affirmed.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    McCuiston v. White.
    4-3566
    Opinion delivered October 29, 1934.

      Frank G. Douglas, for appellant.

      J. S. Abercrombie, for appellee.
   Smith, J.

It was adjudged in the decree from which this appeal comes that the tax sales of a certain lot in the city of Blytheville were void. One of these sales was had on June 2, 1930, for the nonpayment of a sewer district tax, and the second sale of the lot was had on June 17, 1930, for the nonpayment of a paving district tax.

At the time the suit was brought which questioned the validity of these sales a tender was made of a sum of money sufficient to redeem the lot from both said sales if redemptions were permissible. The decree recites that this money had been deposited in the registry of the court in an effort to redeem said lot, and the clerk was ordered to pay the money in his hands over to the plaintiff, who had purchased the lot from each of the improvement districts. The lot had, at each sale, been sold to the improvement district in whose behalf the sale was made, for the lack of other bidders.

It is unnecessary to determine whether the sales were valid or were void, as the right to redeem from the sales had not expired at the time the redemption tenders were made; indeed, the right of redemption has not yet expired. There was passed at the 1915 session of the General Assembly act No. 43 (Acts 1915, page 123), entitled, “An act to regulate sales by commissioners in chancery for special assessments and redemptions therefrom.” It is provided in the portion of this act which appears as § 5644, Crawford & Moses’ Digest, that the owner of property sold for the nonpayment of betterment assessments ‘ ‘ shall have the right to redeem from said sale at any time within five (5) years” by payment to the clerk as commissioner of the sum of money then required to effect a redemption. The decree here appealed from recites, as has been stated, that there was a tender and a deposit of the required amount, of money.

It was held in the recent case of W. B. Worthen Company v. Delinquent Lands, ante p. 723, that this statute, in so far as it applied to municipal improvement districts, had not been repealed by subsequent legislation, but was still in full force and effect as applied to municipal improvement districts.

As the effect of the decree is to accord this right of redemption, it must be affirmed, and it is so ordered.

McHaney and Baicer, JJ., dissent.


author: Humphreys, J.

text:
    El Dorado Building & Loan Association v. Union Savings Building & Loan Association.
    4-3556
    Opinion delivered October 29, 1934.

      Archie D. Murphy and Coulter £ Coulter, for appellants. .

      Marsh £ Marsh, for appellees.
   Humphreys, J.

The issues of this appeal are whether, first, a contract providing for the Union Savings Building & Loan Association of Little Rock, Arkansas, to absorb- the assets of the El Dorado Building & Loan Association of El Dorado, Arkansas, was void; and, second, whether a secret contemporaneous agreement for the Union Savings Building & Loan Association to pay W. F. Matthews $11,000 out of the assets it should receive from the El Dorado Building & Loan Association for.consummating the main contract was void. The contracts were entered into on the 15th day of March, 1932. The main contract, in effect, provided for all the assets of the El Dorado Building & Loan Association, except $125,000 worth of real estate, to be turned over to the Union Savings Building & Loan Association, said real estate being reserved for division pro rata between .the stockholders of the guaranty stock upon surrender of their stock for cancellation. The total amount of its guaranty stock was $100,000. The consideration of the-main contract was that the Union Savings Building & Loan Association should carry out and perform all the contracts of the several investment stockholders of the El Dorado Building & Loan Association, such as receiving the dues, paying the dividends thereon, etc. The total amount of investment stock was $316,839.70. No indemnity or security was given by the Union Savings Building & Loan Association for the faithful performance of the contract on its part. Pursuant to the agreement, all the. assets of the El Dorado Building & Loan Association were transferred and conveyed to the Union Savings Building & Loan Association, except the real estate reserved and divided pro rata among the guaranty stockholders of the. El Dorado Building & Loan Association, and $11,000 in money and real estate was turned over to W. F. Matthews out of the assets of the El Dorado Building & Loan Association for negotiating and consummating the deal; whereupon, on December 31, 1932, the El Dorado Building & Loan Association filed its certificate for dissolution. The Union Savings Building & Loan Association collected the monthly dues on the installment investment stock and paid dividends for a short time on the fully paid investment stock that it had obligated itself to pay under the contract, and that it ceased to pay after March 1,1933, at which time it went into liquidation. The investment stockholders were not convened to approve the contract, and same was not ratified by the. consent of the shareholders holding a majority of the shares in each of the respective contracting associations. The contract was approved by the directors and guaranty stockholders but no others. The negotiations on the part of the Union Savings Building & Loan Association in making and executing* the. contract were conducted by G-. Bussell Brown with W. F. Matthews representing the El Dorado Building & Loan Association, and the agreement relative to the commission is as follows:

“As a side agreement and inducement to W. F. Matthews, secretary of the El Dorado Building & Loan Association, I have agreed that we shall pay to him, for his services in connection with the transfer of these assets, the difference between a hundred and twenty-seven and a hundred and thirty-eight thousand dollars, which is to be paid as follows: Forty-six hundred dollars cash and sixty-four hundred dollars in real estate which is owned by the company. ’ ’

The above memorandum was marked “confidential” and was handed by Brown to the president of the Union Savings Building & Loan Association. When the Union Savings Building & Loan Association went into liquidation, certain investment stockholders for themselves and others similarly situated brought this suit in the second division of the chancery court of Union County to set aside the main and contemporaneous contracts on the ground that they were contrary to law and void. The allegations of the complaint were controverted, and, upon a hearing of the cause, the trial court rendered the following decree:

“The. contract in suit was void ab initio; that it was never ratified, and that the' plea of estoppel is not well founded; that plaintiffs (and the other stockholders similarly situated) recover the property conveyed to W. E. Matthews, and recover judgment against him for the amount of cash paid to him in connection with the transaction between the two associations; that all the property reserved to the guaranty stockholders be recovered of and from them, and that all conveyances affecting any of the property conveyed by the El Dorado Association be canceled; that the Union Savings Building & Loan Association, and all other parties fully account for all properties received by them from the assets of the El Dorado Building & Loan Association.”

. ■ An appeal has been ’duly prosecuted to this court from said decree.

The absorption of the assets of the El Dorado Building & Loan Association by the Union Savings Building & Loan Association was attempted under act 128 of the Acts of 1929. Section 6 of that act prohibits the withdrawing of guaranty capital stock until final liquidation of an association, and requires that the funds derived from the sale of such shares shall be set aside, and be a permanent and fixed guaranty to all other shareholders and certificate holders that the association will fulfill its agreement with them as per terms of the contract issued to them. The contract in question provided for the withdrawal of certain real estate to liquidate the guaranty stock, and was withdrawn and divided between the holders thereof contrary to the provisions of the act. The contract also violated § 22 of act 128 of the Acts of 1929, which required the consent of the shareholders holding a majority of the shares in each of the contracting associations in case of a merger. Appellants insist that § 22 had reference to shareholders who had a right to vote under the by-laws of the associations, and have called our attention to the by-law of the El Dorado Building & Loan Association allowing guaranty shareholders only to vote. The act does not so state, but, on the contrary, provides that, before there can be a merger of two associations, the consent of the shareholders holding a majority of the shares in each of the contracting associations must be obtained. The character of- contract entered into was prohibited by act 128 of the Acts of 1929 and was void ab initio and was incapable of ratification.

W. F. Matthews was acting in a fiduciary capacity, and had no right 'to appropriate assets belonging to his employer as a commission for negotiating and executing a contract prohibited by law, and especially when this commission was paid him secretly and without the knowledge of the guaranty stockholders, as shown by the record in this case.

No error appearing, the decree is in all things affirmed.


author: Mehaffy, J.

text:
    Alphin v. Tatum.
    4-3701
    Opinion delivered October 29, 1934.

      McKay & McKay, for appellant.

      Alvin Steven», Mahony & Yocum, C. B. Crumpler and Compere é Compere, for appellees.
   Mehaffy, J.

In May, 1927, William Peterson entered into a written contract with the county judge of Union County and the commissioners of public buildings of said county to erect a courthouse according to certain plans and specifications. Peterson was to receive as compensation, the sum of $692,500, which was paid by warrants drawn on the county treasury and payable out of the county general revenue funcl. $95,000 was payable on demand, $45,000 payable August 1st each year from 1928 to 1940, inclusive, and the remaining warrant of $12,500 payable on August 1, 1941.

A suit was filed by taxpayers of Union County to restrain the county judge and commissioners of public buildings and the contractor from proceeding further in the erection of the court house. This suit was decided October 24, 1927, and this court held that the contracts and warrants were valid.

There is still due, according to the complaint in this case, $327,500, maturing at the rate of $45,000 on August first of each year for the years 1934-1940, inclusive, and $12,500 maturing August 1, 1941.

On July 24, 1934, a contract was made and entered into by and between Union County, acting through the county judge, who was authorized by resolution of the. levying board of said county, and Eoy E. Smith as trustee for E. N. Garrett and others, being the owners and holders of all the outstanding court house warrants.

The contract recites, among other things, that all of the courthouse warrants mentioned above have been paid and canceled except the warrants maturing in the years 1934-1941, inclusive, in the sum of $327,500; that these warrants are now owned by persons on whose behalf Eoy E. Smith is acting. The contract also recites that the revenues of the county have, since the date of the first contract, decreased to such an extent that they are insufficient to pay the maturities of said court house warrants, and to pay the necessary operating expenses of the county government.

It is proposed to refund the warrants so as to make them payable as follows: the warrants due August 1, 1934, to August 1, 1938, inclusive, $20,000.25; the warrants due August 1, 1939, to August 1, 1946, $25,249.59; and the warrant due August 1, 1947, $25,502.03. That is, one warrant is payable annually as above stated until the entire debt is paid. The outstanding warrants now are as follows: August 1, 1934, to August 1, 1940, $45,000. That is, $45,000 is due annually until 1940, and on August 1, 1941, there will be due $12,500. It is proposed to exchange these warrants for the above warrants of smaller amounts.

When the case involving the validity of the contract to build the courthouse, and the validity of the warrants issued in pa3nnent of same was decided by this court, the court held that the contract and warrants were valid. Lake v. Tatum, 175 Ark. 90, 1 S. W. (2d) 554.

The appellant contends that Amendment No. 10 to the Constitution of the State of Arkansas impliedly repeals §§ 1994, 1996, 1997 and 1998 of Crawford & Moses’ Digest. These sections provide for the calling in of outstanding warrants, and the first part of Amendment No. 10 provides for conducting the counties on a sound financial basis, and prohibits the making of certain allowances and certain contracts. It is unnecessary to discuss this first part of the amendment because the warrants issued in payment of the courthouse have already been held valid by this court. The amendment, however, contains the following section:

“Provided, however, to secure funds to pay indebtedness outstanding at the time of the adoption of this amendment, counties, cities and incorporated towns may issue interest-bearing certificates of indebtedness or bonds with interest coupons for the pa3unent of which a county or cit3r tax in addition to that now authorized, not exceeding three mills, may be levied for the time as provided by law until such indebtedness is paid.”

It is contended by the appellant that the sections of Crawford & Moses’ Digest above referred to are repealed b3;' Amendments Nos. 10 and 17 to the Constitution. These amendments to the 'Constitution do not repeal the sections of the digest mentioned. While Amendment No. 10 requires the affairs of counties and municipalities to be conducted on a sound basis, and prohibits making debts -beyond tlie revenue of the county, it also provides that, to secure funds to pay the indebtedness outstanding at the time of the adoption of the amendment, counties and municipalities may issue interest-bearing certificates of indebtedness for the payment of which they may levy a tax, not to exceed three mills, in addition to the tax now authorized by law.

Union County is not proposing to issue interest-bearing evidences of indebtedness or to levy a tax in addition to that now provided by law, but the only thing it is undertaking to do is to make the annual payments smaller so that they may be met and paid from the revenue of the county. There is no constitutional provision prohibiting a contract of this kind.

If it were sought or intended to levy an additional tax this could only be done by complying with the provisions of Amendment No. 10. Union -County is not undertaking to construct, reconstruct or extend any county courthouse or county jail, and not undertaking to levy a tax as provided in Amendment No. 17. In order to issue interest-bearing evidences of indebtedness or levy a tax, these amendments to the Constitution must be complied with, but, as the county is not undertaking to do any of the things mentioned in these amendments, they have no application. These amendments were discussed at length in the case of Carter v. Cain, 179 Ark. 79, 14 S. W. (2d) 250, and it would serve no useful purpose to discuss them further here.

The decree of the chancery court is correct, and therefore affirmed.


author: Butler, J.

text:
    Fleming v. Rolfe.
    4-3715
    Opinion delivered October 29, 1934.

      Campbell & Smith and C. W. Norton, for appellant.

      Marvm B. Norfleet and Hargraves & Johnson, for appellee.
   Butler, J.

At the primary election held in St. Francis County on August 14, 1934, the appellant, Charles Fleming, and the appellee, E. A. Bolfe, were candidates for the Democratic nomination for the office of county judge of said county. On the returns of the election the central committee found that E. A. Bolfe had received a majority of the votes cast and issued to him its certificate of nomination. The appellant, Fleming, filed his complaint contesting the right of the appellee to the nomination, to which was appended in the form and manner required by law the affidavit prescribed, subscribed to by nineteen affiants. To that complaint the appellee filed a motion to strike and dismiss the complaint on the sole ground that the affiants were incompetent to make the affidavit in that they were not familiar with the allegations made in the complaint; that within two years past they had violated §§ 3 and 4 of the rules of the Democratic Party by failing to support the regular Democratic nominee at a general election; that they were not qualified electors with the meaning of § 3772 of Crawford & Moses’ Digest.

A response was filed to that motion, and, .after hearing testimony, the court overruled the contentions contained in the motion to dismiss, that (B) “the affiants do not know and are not familiar with the facts made and set out in the complaint”; and that (C) “each of the affiants had violated the rules of the Democratic Party within the last two years bAT supporting other than a Democratic candidate.”

The court, however, sustained the motion of the appellee on the theory that 13 of the affiants were not qualified electors under § 3772 of the Digest, for the reason that some of them had failed to assess a substantial portion of their personal property, that one had failed to assess her personal property when her poll was assessed, and' that others had failed to state in their assessment lists that they had no personal property.

The appeal presents for our determination the single question of whether or not the judgment of the trial court, holding that the affidavit was subscribed by less than ten qualified electors within the meaning of the law, is correct. The appellee seeks to justify the action of the court on the authority of Collins v. Jones, 186 Ark. 442, 54 S. W. (2d) 400, and State v. Chicago Mill & Lbr. Corp., 187 Ark. 65, 52 S. W. (2d) 951. He points out certain language used in the case of Collins v. Jones, which he contends sustains his contention, particularly the following sentence: “One may assess who has no property subject to taxation, and one does assess that makes that statement and signs the blank assessment list showing no property subject to taxation.” The question presented here was not before the court in Collins v. Jones. That case involved the validity of a number of votes east by married women, and of those of certain persons who procured their names to be placed by the clerk on the assessment record without making any assessment of personal property. The attack made was that, although the poll taxes of these voters had been paid, they had not been properly assessed; and that they had been assessed with, and paid, no taxes other than their poll taxes. The facts were that the husbands of these women, after having assessed their property and poll tax, returned to the assessor and informed him that they had failed to assess their wives with a poll, and that he (the assessor) then went to the county clerk’s office and added their names to the book. Others brought their copies of assessment lists, and when these copies showed two polls the assessor would list the wife as having* been left off through error. These lists were all brought to the assessor after April 10 with no names subscribed except those of the husbands.

In passing on that question, we there said: “We agree with the circuit judge that these assessments did not comply with the law. None of these assessments were made until after April 10, at which time the provisions of § 3778, Crawford & Moses’ Digest, applied. Even those assessments which were not brought in ‘in bunches, ’ and which had not been mutilated, did not show the name of the second person assessed. The law appears to contemplate a separate assessment of each taxpayer, of all males and of all females, who wish to become qualified electors by paying a poll tax.”

The only other question decided by the court in Collins v. Jones, supra, was whether or not the trial court properly excluded from the count of legal electors the names of persons which had been placed on the tax books by the county clerk without requiring any assessment to be made of personal property. We held that this action of the court was proper, and, in so doing, said: “The fact — if in any case it was a fact — that these persons had no property subject to taxation would have been no reason for not placing their names on the tax books; but, nevertheless, they were required to sign a tax list showing the property, if any, owned by them. ’ ’ The court did not say or mean, by the language quoted, that the person had to inscribe on the list, “no personal property,” or other words of similar import.

In State v. Chicago Mill & Lbr. Corp., supra, the questions involved related only to the assessment and collection of revenues and not to the qualification of electors and therefore have no application to the case at bar.

We are of the opinion that when a person signs and delivers an assessment list in which he fails to assess any personal property whatever, it is sufficient to show that he has none, within the meaning of Collins v. Jones, supra, and when property is owned by an elector and omitted from Ms assessment lists, while it may subject him to the penalty provided by law, it does not prejudice Ms right to vote. In other words, one who signs an as- , sessment list, assessing his poll, and gives it to the assessor and thereafter pays his poll tax within the time required (not being otherwise disqualified) is a qualified elector. The laws relating to assessment of property for taxation are primarily intended for the collection of revenue and ample provision is made for the discovery of all omitted property and adequate penalties provided for those who -wilfully fail to assess, or give fraudulent statements of value.

It is contended by the appellee that the court’s action was proper, not only for the reason given by it, but for the further reason that the assessor failed to administer the oaths -to the persons assessing in the manner provided by law and failed to sign the jurat. The failure of an officer to perform his duty does not deprive a citizen of his right to the elective franchise, and we hold the argument of the appellee unsound.

Appellee has filed a motion to dismiss the appeal because of the failure of the appellant to abstract the testimony relating to the question decided by the. court against him, but he has made, in his abstract and brief, no reference to any exception saved by him to the action of the court, and has failed to pray a cross-appeal from the. finding of the court in those particulars. The presumption is that the court’s decision was supported by the proof, and it was the duty of the appellee, not the appellant, to bring up these questions for review, if he felt aggrieved.

The judgment of the trial court is reversed, and the cause remanded with directions to reinstate the complaint, and for further proceedings.


author: Baker, J.

text:
    Cherry v. Leonard.
    4-3734
    Opinion delivered October 29, 1934.

      Verne McMillen, for appellant.

      Trieber & Easley, Walter L. Pope, Attorney General, and Robert F. Smith, Assistant, for appellees.

      Owens & Ehrman and Griffin Smith, amici curiae.

   Baker, J.

The appellant filed his suit in Pulaski Chancery Court praying for a restraining order to prevent the -State Treasurer from paying out certain moneys, upon order of the Refunding Board, in the purchase of tenders of bonds, made to the Refunding Board, and which that board desires to accept. Plaintiff alleged that he is a resident of Pulaski County, and that he is a taxpayer and interested in the- contemplated acts of the State Treasurer and Refunding Board, which conduct complained of, he says, is in violation of the provisions of act No. 11, approved February 12, 1934; said act having been passed at the special session of the Legislature held in 1934.

Plaintiff alleges that said act No. 11, by the provisions of § 47, makes an appropriation of $100,000 for redeeming State highway refunding bonds and State toll bridge bonds during the period beginning the 1st day of January, 1934, and ending the last day of June, 1934, and an additional appropriation of $350,000 for redeeming road district refunding bonds during the period beginning with the first day of January, 1934, and ending with the last day of June, 1934; and an appropriation of $20,000 for redeeming certificates of indebtedness during the period beginning with the first day of January, 1934, and the last day of June, 1934; an appropriation of $15,000 for redeeming funding notes issued to contractors during the period beginning with the first day of January, 1934, and ending with the last day of June, 1934; that said § 47 also makes an appropriation for all of said purposes in the total amount of $970,000 during the fiscal year beginning with the first day of July, 1934, and ending with the last day of June, 1935. The total appropriation made by said § 47 is $1,455,000.

Plaintiff states further that by the terms of said § 47 of said act No. 11 the appropriation made for use during the period beginning the first day of January, 1934, and ending the last day of June, 1934, has expired.

That the Refunding Board on the 27th day of July, 1934, passed a resolution authorizing the State Treasurer to draw a voucher for the full amount of the appropriation made for the period from January 1, 1934, to the last day of June, 1934, for the purpose of redeeming bonds that might be purchased by the State Treasurer on the 19th day of September, 1934.- Plaintiff states that at the time said resolution was passed by the Refunding Board there had been no bonds offered for tender, and, under the terms of the call made, there could be no bonds offered for tender and no purchases made until the 19th day of September, 1934.

Plaintiff further states that neither, the Treasurer nor Refunding Board has a right to use. any portion of the moneys appropriated by the provisions of said § 47 of said act No. 11 for the period beginning with the first day of January, 1934, and ending the last day of June, 1934.

Plaintiff further states that, under the provisions of § 37 of said act No. 11, no refunding obligations can be purchased by the State Treasurer until there shall be on hand in the State Highway and Toll Bridge Refunding Bond Redemption account and in the other redemption accounts, provided for in said act, funds in excess of the amount necessary to pay the interest and principal falling due in any fiscal year. That the State Treasurer is preparing to purchase bonds offered for redemption on September 19, 1934, when there are on hand funds in excess of the amount necessary for the semi-annual payments on refunding obligations next to accrue after the date of the acceptance of said tenders.

Plaintiff further alleges that the State Treasurer should not' purchase any refunding obligations until there shall be on hand in the State Highway and Toll Bridge Refunding Bond Redemption accounts funds in excess of the amount necessary to pay the interest and principal falling due in the fiscal year, which ends June 30, 1935, and that at the present time there is on hand no funds in excess of said amount when there is taken into consideration all payments falling due on highway obligations during said fiscal year, there being on hand a sufficient amount of funds with which to purchase refunding obligations in the amount of $1,350,000 when there is provided, only for the semi-annual payments next to accrue; that the Treasurer and the Refunding Board should provide for all payments falling due in the fiscal year before using funds with which to purchase refunding obligations under the provisions of said act No. 11.

To this complaint a demurrer was interposed, sus- ■ tained by the court, and the plaintiff refusing to plead further, the complaint was dismissed. The plaintiff, by his appeal, brings to this court, the matters alleged in his complaint.

It is necessary that we construe those particular sections of act No. 11 relied upon by the plaintiff, the appellant herein.

Act No. 11 is the result of settlement and compromise between the State of Arkansas and bondholders, holding State highway bonds, toll bridge bonds, and road improvement district bonds, which were assumed by the Martineau Act, passed in 1927, and other creditors.

We think it unnecessary to go into the complete and detailed history of the so-called Martineau Act and the amendments thereto, and the subsequent acts, in an effort to set out all of these obligations. It will be sufficient, however, to say that at the time of the passage of act No. 11, under consideration, the State had already defaulted in payments of its several obligations. Decreased revenue available for payment of these obligations, and extremely heavy bonded indebtedness, were such that, under the conditions that prevailed, suits had been filed and the funds of the State, whatever they were, were held under orders impounding the same, and it was seeming impossible, under the then existing statutory authority, for the State to meet its obligations.

After a long period of negotiations between the officers and agents of the State and committees of bondholders, certain facts were recognized that made it necessary to refund all of this indebtedness. The road improvement district bonds had, as their security, lands of taxpayers along, and adjacent to, the highways built by the improvement districts. An effort to enforce liens of the bondholders against these lands necessarily meant that the property owners, who were in most instances not able to pay the assessments, would not pay State and county and school taxes, and on that account the resources of the State, from which a large part of its revenue is derived, would be further destroyed, and the ability of the State to meet its obligations be so hopelessly impaired as to leave, all creditors without remedy. These conferences between officers and agents of the State and bondholders’ committees, were in full recognition of these general facts and other conditions equally potent and affecting both debtor and creditor alike. The ultimate result of these negotiations was act No. 11, which a special session of the Legislature was called to pass, and, when passed, to become a contract and settlement as between the State and its creditors.

It is on account of these facts that the writer of this opinion approaches his task with some degree of trepidation.

It is a well-recognized theory that in all conferences and negotiations of this kind, having the viewpoints of all of the varied interests represented, the result would ordinarily be entirely satisfactory, but it is also a matter of common knowledge possessed by those who are skilled and who are trained by experience and study that most instruments prepared under such conditions frequently are mere vehicles to bring forward, in certain parts thereof, individual ideas of some of those taking a part therein, as distinguished from the composite or combined judgment and decision of the entire body, and, by reason thereof, there may ultimately be some matters not in harmony with others, if not in direct conflict.

We think that, by mistake and oversight, certain matters appear in act No. 11 not intended to be there, but which were probably in some of the original drafts of the proposed act as it was in the course of study and preparation.

A careful reading of act No. 11 indicates that it was intended to be practical, so that it would work out and dispose of these troubles, aiding both the State and bondholders. It was not intended by either of the parties that there should be changes or amendments. Section 44 of the. act expressly provides that it should be a contract between the State and its creditors, including the affected improvement districts, and that the terms of the contract, or contracts, should never be impaired by any subsequent legislation. The only purpose, under the circumstances, which judicial construction could serve ought to be for mutual benefit of the contracting parties.

Having all of these matters in mind, we consider the act, by beginning with § 2, which section creates an account in the State Treasury known as the State Highway Fund.

• “The first charge upon the State Highway Fund shall be the cost of maintaining the State Highway system and the operation and maintenance of the toll bridges, and the Treasurer of State shall transfer from said State Highway Fund to the Highway Maintenance Fund 25 per cent, of the total amount credited to said State Highway Fund during any fiscal year, such credit to be not less than $166,666 monthly and not more than $100,000 for each fiscal year may be appropriated for the operation and maintenance of said toll bridges.”

The second paragraph of § 2, containing, these provisions, indicates clearly that the contracting parties recognized the fact that all revenues must be obtained primarily by the maintenance of the State Highway System and in a condition so that the roads can be reasonably well used. It was known that local citizens would not buy cars or pay license fees, or buy gasoline upon which tax could be collected, unless there were roads upon which they might be operated, and travelers would avoid the State if highways were not such as to invite the traffic.

The next paragraph of § 2 provides for the transfer of certain funds to take care of certain conditions then prevailing, and the third paragraph of § 2 provides that all highway revenue credited to the State Highway Fund, in excess of the transfers and appropriations above provided for, shall next be applied in payment of interest upon the bonds and other oblig-ations authorized to be issued or paid under the provisions of the act. The term “interest” as used shall be deemed to also include an amount equal to 3 per cent, per annum of the total par value of the road district refunding bonds, series B, issued hereunder. Any balance remaining after providing for the semi-annual payments next to accrue, shall be credited to and paid by the Treasurer of State into certain special accounts, created in the State Highway Fund, and for purposes as stated.

The first of these special accounts is to be known as the State highway refunding bond redemption account, and percentages for allocation of funds for the years of 1934, 1935, and 1936 are provided in that paragraph and also the amounts annually thereafter, and these amounts were pledged for the payment or redemption of the principal of State highway refunding bonds, series A and B, State toll bridge refunding bonds, series A and B, and LeValls Bluff Bridge Refunding-bonds were in the same manner provided for by the act.

The second special account was created to be known as the Road District Refunding Bond Redemption Account, and percentages for allocation of funds were provided for in like manner as in the Highway Refunding Bond Redemption Account, but not in the same amounts, which were pledged for the payment or redemption of the principal of Road District Refunding Bonds, series A and B, and the State thereby covenanted with the holders of Road District Refunding Bonds that the amount in said Road District Refunding Bond Redemption Account should never be less than $600,000 during any fiscal year, and in like manner there was provided an account to 'be known as the Funding Notes Redemption Account, and, in addition, a Refunding Certificates of Indebtedness Redemption Account.

It will be observed from the reading of the act, and the foregoing statement of the effect of paragraph 2, that the several accounts created out of the State Highway Fund could come into being only after highway maintenance had been provided for, and after making allocation and provision for the payment of interest upon bonds and other obligations to be paid under the provisions of the act, and whatever was then left, was intended to be used to create the special accounts just above mentioned.

Trouble, however, seems to arise when we read § 37 of the act, which provides that “whenever in any fiscal year there, shall be on hand in the State Highway and Toll Bridge Refunding Bond Redemption Account funds in excess of the amount necessary to pay the interest and principal falling due in such year, such excess, or remaining, funds shall be applied by the Refunding Board in the purchase of State highway refunding bonds, series A and B, and State toll bridge refunding bonds, series A and B, and DeValls Bluff Bridge Refunding Bonds, at the lowest prices submitted, not exceeding par and accrued interest, in the manner provided by the act.”

It must already be apparent that the above mentioned special Refunding Bond Redemption Account is created out of the balance or surplus remaining after interest and other debt service obligations, for the next fixed semi-annual payment shall have been provided for out of the general State Highway Fund. These special refunding redemption accounts were intended to be used in the purchase of bonds to be issued under this refunding act when tendered to the Treasurer under the conditions set forth in the act. It certainly was the purpose of the contracting parties that the State should have the right to pay for, and that the bondholders should have the right to tender, their bonds to be purchased by the State out of these special refunding accounts. The refunding accounts represent the amounts not needed after provisions shall have been duly made for maintenance of highways and for payment of interest and other obligations, as fixed in § 2, and it was wholly unnecessary to provide again in § 37 for a further reservation in these redemption accounts of interest for one fiscal year. It is expressly stated in § 2 of the act that the interest shall be allocated prior to the passing of any funds to the redemption accounts. The interest, annually, on all obligations would be in excess of three million dollars. The statement is sufficiently accurate for the purpose of this opinion. If it were the intention of the contracting parties that there should be an accumulation of funds for debt service of three million dollars annually, after these payments had already been provided for in § 2 of the act, then such a provision is unreasonable. The theory is without explanation that three million dollars should be held in the State. Treasury for the payment of the debts, by reason of which both parties must lose, and by reason of which neither could gain in point of profit or security. The parties certainly did intend, as shown by the entire spirit of the act and its otherwise harmonious provisions, that the State should use these funds in these redemption accounts for the purpose of purchasing such bonds as might be tendered at prices deemed advantageous to the State, and in that way save to the State enormous amounts which would otherwise be paid in interest, and also operate to the benefit of those holding the bonds, by enabling the State to 'become more able, from time to time, as bonds are purchased, to meet its obligations.

There is most certainly a well considered, well defined and definite plan contained in the act, and the purpose of the act, approved by all of the parties, should not be permitted to be defeated and be made of no effect by this one provision for an unnecessary accumulation to pay obligations otherwise provided for in the act. The words “in excess of the amount necessary to pay interest and principal falling due in such year,” and after the following word “such” the word “excess,” in § 37, are unnecessary, and if permitted to remain in the act, will prove extremely injurious to the State, damaging the bondholders generally, and will operate to the defeat, for practical purposes at this time, of the legislative intent. To leave these words in the act, as written, would perhaps only affect the State Highway Bond Redemption Account, and Toll Bridge Redemption Account.

The second paragraph of § 37 relates to the Road District Refunding Bond Redemption Account and permits the use of funds available in this account to purchase Road District' Refunding Bonds, series A and B.

If the offending words are. necessary to the State Highway Bonds, it would be of vastly more importance that the same provision be incorporated as to the Road Improvement District Bonds, but these words were omitted in the provision relating to Road Improvement District Bonds and also omitted in the matter of Refunding Certificates of Indebtedness Redemption Account, and also omitted in the matter of Funding Notes Redemption Account, nor can these words, by interpretation, be, by any reason, read into the act as relating to these last several refunding bond accounts just mentioned.

It must appear to any one reading § 37, which is a provision for the use of the surplus funds, that the creation of these several redemption accounts and an allocation of these funds for the. respective purposes set forth, that it was not the legislative intent to interject a phrase to defeat the purpose of the statute. Since that provision is contradictory, it must be treated as surplusage and the effect of the ruling of the chancery court upon that proposition, in so finding, is correct.

Our position is well stated in the following quotation from one of the briefs furnished us: “In the decision of the issues involved in this appeal, the determination of the intentions of the Legislature is the primary factor. This court has frequently announced the doctrine that omitted words in legislative acts will be supplied and that unnecessary or contradictory clauses in acts will be deleted and disregarded in order to give effect to the clear legislative intent.

“In the case of Snowden v. Thompson, 106 Ark. 517, 153 S. W. 823, the court quoted from the earlier case of Garland Power Development Co. v. State Board of Railroad Incorporation, 94 Ark. 422, 127 S. W. 454, as follows: ‘In order to conform to the legislative intent, errors in an act may be corrected or words rejected and others substituted.’

“In the case of McDaniel v. Ashworth, 137 Ark. 280, 209 S. W. 646, the court again quoted this language with approval, and stated: ‘The whole subject was reviewed in the case last cited and the doctrine was made plain that the duty of the courts in interpretation of statutes was to endeavor to ascertain from the language used the true intention of the lawmakers, and, when that intention was ascertained, to disregard everything which was in conflict with that intention, and, if necessary, to omit words or substitute others so as to make the statute harmonize with the manifest will of the lawmakers.’

“The ease last cited is that of State ex rel. v. Trulock, 109 Ark. 556, 165 S. W. 16.

“The more recent ease of Hazelrigg v. Board of Penitentiary Commissioners, 184 Ark. 154, 140 S. W. (2d) 998, adheres to the rule above announced, citing the former cases above mentioned and many others.”

One other question is submitted to us for determination, and that arises under § 46 of act No. 11. The provision of paragraph (a) is to the effect that there is appropriated, payable from the State Highway Fund, for the maintenance and repair of the toll bridges owned 'by the. State for the period beginning January 1, 1934, and ending June 30, 1934, the sum of $25,000; and for the fiscal year ending June 30, 1935, the sum of $50,000. This is an example of several different items of appropriations.

The writer must confess that the wording of these appropriations is such as to give trouble, but the language used as to these appropriations must be construed “by the law of reason,” and this may be done under the same, authority as we have just above cited. It certainly cannot be found harmonious with the spirit of the act to say that it was the purpose of the Legislature to create and establish dead funds. It must have been the purpose, and we so hold, that the dates fixed in the language of these appropriations, in this particular act, was intended to fix merely the amount of money appropriated out of such funds as might arise during the particular period set out in the act and that it did not intend to say, and it does not say, expressly or impliedly, that such sums of money must be used, as being appropriated for use only during that particular period. The Legislature knew something of the financial condition of the State. It did not want the appropriations fixed for use through and to the end of the biennial period to be taken out of the first moneys that might be collected, but intended to fix amounts to be taken out of funds arising during the several periods, and such funds are certainly available to the end of the period. This is the only conclusion that can be arrived at in harmony with the evident and expressed purpose of act No. 11. We believe this to be the legislative, intent; that it is in accordance with the terms of the agreement and contract between the State and its creditors; that it in no manner impairs the act in any respect.

It follows therefore that the chancellor was correct, and the case is affirmed.


text:
    Shank v. Todhunter.
    4-3907
    Opinion delivered October 29, 1934.

      W. T. Pate, Jr., Robert J. Brown, Jr., and Blake C. Cook, for appellant.

      Walter L. Pope, Attorney General, and Robert P. Smith, Assistant, for appellee.
   Baker, J.

Mark Shank was convicted of murder in the first degree in the Saline Circuit Court, and condemned to be executed. After he was- sent to the penitentiary in Jefferson County, application was made to S. L. Todhunter, superintendent of the Arkansas State Penitentiary, requesting that he select a jury of twelve men from'the regular panel of Jefferson County petit jury to hold an inquisition as to the present sanity, or insanity, of the said Mark Shank. The petitioner sought the aid of § 3251 of Crawford & Moses ’ Digest. The- section is as follows: “When the sheriff (superintendent of the State Penitentiary) is satisfied that there are reasonable grounds for believing1 that the. defendant is insane, or pregnant, he may summon a jury of twelve persons on the jury list drawn by the court, who shall be sworn by the sheriff (superintendent of the State Penitentiary) well and truly to inquire, into the insanity or pregnancy of the defendant and a true inquisition return,” etc.

S. L. Todhunter, the superintendent, denied the application of petitioner ashing the inquisition. Then this suit was filed in the. circuit court of Jefferson County, and on Wednesday, July 25, March term of the circuit court, the court upon a hearing, found that the petitioner was not entitled to the relief prayed for, the issuance of a mandate ordering the said S. L. Todhunter to proceed under § 3251 of the Digest'd» hold the said inquisition. It is this order, made by the circuit court of Jefferson County, that we are asked to review.

The case of Shank v. State was before this court on May 14, 1934, and the conviction of Shank was affirmed. See ante p. 243.

The defense offered upon the trial of Shank for the murder charge was his insanity. This question was very thoroughly presented and considered on the trial of the case, and the jury found against the contention of the appellant.

The allegations in the instant case are to the effect that Shank is now insane, and that on that account he should not be electrocuted. There were submitted to the superintendent affidavits of four physicians. Each of the affidavits was substantially the same in form as the other and to the effect that the affiant had observed and examined Mark Shank, confined in the death cell at Tucker to await execution; that from personal observation and careful study of his family, and personal history, it was the opinion of the physician that Shank is now insane and affected with an incurable mental disease.

■Since the judgment of the circuit court of Saline County imports a verity to the effect that Shank was not insane at the time of the trial, it is argued, but not stated, that if he is now insane, such insanity has come about since the trial and conviction. The only proof of present insanity arises ont of the affidavits. Because of its ex parte nature, proof of controverted facts, by affidavit, is sometimes not very satisfactory or conclusive. It usually states, as these affidavits do, conclusions of the affiant, without a development of the facts upon which affiant predicates his statement. The physicians say that they have observed and examined Shank, and, from personal observation and careful study of his family and personal history, they form the opinions expressed as to his insanity. All of the family history and also personal history of Shank that was available was presented at his trial at the time of his conviction. We do not say now that, if a hearing* were had at this time, this evidence would not be available to determine his present condition, but we are sa3dng* that it was not the intention of the statute to permit, or allow, the sheriff, or, in this case, the superintendent of the State penitentiary, to try again the questions already determined by the trial court, and reviewed and affirmed by the Supreme Court. If Shank’s insanity had not been presented to the court at any time, and had not been tried, a somewhat different situation would have been presented.

No affidavit contains a statement of any fact observed, upon which the opinion of the physicians is based, or that tends to show any real difference in the condition of Shank at this time and at the time of his trial and conviction. From the record before us, we do not know and cannot find any such alleged fact. If his actual condition now be the same as it was then, and there is nothing to show that it is different, the facts have already been determined. This, no doubt, was the viewpoint of the learned trial judge, when he denied the pra3^er of the petitioner to issue, a mandate to require the superintendent to hold the inquisition.

The situation in this case is somewhat incongruous. There is no specific allegation that Shank has become insane since the date of his trial. There is the allegation that he is now insane. If his present condition is not now the same that it was at the time of his trial and conviction, the facts showing* this changed condition could have been alleged and, no doubt, proof could have been offered upon it. That was not done.

The court held in the case of Howell v. Kincannon, 181 Ark. 58, 24 S. W. (2d) 953, that, since the passage of act No. 55 of the Acts of the General Assembty of 1913, the Superintendent of the State penitentiary should hold inquisitions which were formerly held by sheriffs, under §§ 3250 and 3251 of Orawford & Moses’’ Digest, and that this gave to an insane condemned person who has no further recourse in law a remedy where none other existed, and the reason for so holding is set out in the following language: “At the time this statute was passed the sheriff was the executioner, and had the custody of the person of the defendant from the date of judgment to that of execution, and he was therefore the only one who could have, full and free access to the presence of the defendant, and observe him during the time of his confinement before execution; and, since by the enactment of act No. 55, supra, all these duties and opportunities for observation have, passed from the sheriff to the keeper of the penitentiary, the only way by which those sections of our Code, supra, can be given any practical effect is by substituting the keeper of the penitentiary for the sheriff. ’ ’

A casual reading of the statutes relied upon would indicate that, under ordinary conditions at least, the inquisition to determine insanity arising after the sentence of death seems to be upon the initiative of the Superintendent of the Penitentiary. Since the Superintendent is presumptively, at least, a man of somewhat keen observation, discriminatory powers, good judgment, his observation and judgment would be such that, upon the institution of inquisition by him, most careful consideration would be accorded to his views, but, on the other hand, his refusal to proceed under this statute necessarily demands a showing, by affirmative proof, of an abuse, of discretion, or-an unquestioned neglect of duty, before his conduct may be made the subject of judicial criticism.

The superintendent of the penitentiary was requested to hold such inquisition. He refused. He would not initiate one. His refusal is in writing, and this matter comes to us upon an allegation that he has abused, or, at least, neglected to exercise, whatever discretion may be lodged in him by the statute, and that is the only question we have to determine. The affidavits, though made by men of the highest type and character, do not state facts sufficient to warrant an interference. After a careful consideration of the law argued in the briefs, we are impelled to agree with the trial court.

The judgment is affirmed.


text:
    Brown v. Missouri Pacific Transportation Company.
    4-3543
    Opinion delivered October 15, 1934.

      Gerland Patten and Sam E. Montgomery, for appellant.

      S. Hubert Mayes, for appellee.
   Johnson, C. J.

Appellant and appellee, respectively, own and operate- motor trucks and busses for hire in this State. About 7:30 p. m., January 25, 1930, while appellant’s truck was returning to Little Rock traversing the Hot Springs Highway at a point some miles out of Little Rock a collision of appellant’s truck and appellee’s bus occurred which resulted in damages to both vehicles. This suit was instituted by appellant against appellee on January 23, 1933, to compensate the alleged damage to his truck, and on June 13', 1933, appellee answered the complaint by general denial, and in addition thereto affirmatively alleged damages to its bus in the collision through the negligence of appellant. Appellant demurred to appellee’s cross-complaint and assigned as cause that the cross-complaint reflected upon its face that the damage complained of by appellee occurred more than three years prior to the filing of the cross-complaint. The demurrer was overruled, and appellant excepted, and this is the first contention urged for reversal. The trial court committed no error in overruling the demurrer. It has long been the law in this State that a counterclaim arising out of tort, even if barred by the statute of limitations, is • available and may be employed by way of recoupment against a suit for the recovery of damages. Huggins v. Smith, 141 Ark. 87, 216 S. W. 1; Missouri & N. A. Ry. Co. v. Bridewell, 178 Ark. 37, 9 S. W. (2d) 781.

Moreover, it is immaterial that the counterclaim, appeared as an affirmative plea by appellee, as pleadings are liberally construed to effectuate justice between the parties. After the demurrer was overruled, the cause proceeded to trial, which resulted in favor of appellee. No complaint is urged as to instructions given and refused, but it is finally insisted that the court erred in permitting witnesses to testify in reference to the allegations of the cross-complaint. This contention presents the identical question presented on demurrer. Certainly, if the demurrer was properly overruled, appellee had the right to prove the allegation of his cross-complaint for recoupment purposes.

No error appearing, the judgment is affirmed.


text:
    Mustain v. State.
    Crim. 3899
    Opinion delivered October 15, 1934.

      Ezra Garner, for appellant.

      Hal L. Norwood, Attorney G-eneral, and Pat Mehaffy, Assistant, for appellee.
   Butler, J.

The appellant, H. A. Mustain, shot and killed one Ray Wilson, who, together with others, was stealing sugar cane from Mustain’s patch. He was indicted for the crime of murder in the first degree and convicted of involuntary manslaughter. On the trial he interposed as a defense that the homicide was the result of a misadventure, and therefore excusable, and complains here of instruction No. 8, given by the court on motion of the State, insisting that the giving of this instruction was error. That instruction is as follows: “You are instructed that, if you find from the evidence beyond a reasonable doubt that the defendant armed himself with a shotgun and went to his cane patch and lay in wait for the deceased and his companions, with the specific intent to take their lives, and fired the shots with the intent to carry out that attempt, then he is precluded from interposing the defense of justifiable or excusable homicide.”

Counsel for appellant argues that this instruction placed the burden of proof upon the appellant to prove that he did not arm himself and lie in wait at the cane patch with the intent to take the life of the deceased, and that he did not fire the fatal shot with the intent to carry out that purpose. The instruction is not open to this criticism, for it definitely places upon the State the burden of proving all of these facts beyond a reasonable doubt.

It is further argued that this instruction precluded the appellant from offering any testimony relating to his defense and casts upon him the burden of proving his innocence. Neither is this objection well taken. The instruction goes no further than to preclude the appellant from interposing the defense of excusable homicide if the jury should find from the evidence beyond a reasonable doubt that the fatal shot was fired under circumstances which would make the slayer guilty of murder in the first degree. Appellant did, in fact, introduce testimony without objection, which, if accepted in its entirety by the jury, would have established his innocence. The instruction was not prejudicial for the reason that the jury found in the killing none of the elements necessary to constitute murder in the first degree, but that the homicide was involuntary manslaughter. Por this reason we deem it unnecessary to set out the testimony tending to establish the crime of murder in the first degree.

As noticed, the defense was that the killing’ was accidental and incident to a lawful act done with due care. This defense was submitted to the jury by full and fair instructions given at the request of the appellant. To establish his defense, he testified that he had discovered that his cane was being stolen; that he went to the cane patch on the afternoon of the homicide and waited a short distance away in order to discover and apprehend the thieves; that after a time, from the movements of the cane and voices heard, he discovered the thieves were depredating again; that he saw one by the name of Mc-Mahen coming toward him with a quantity of cane in his arms; that witness called upon him to halt, but, instead . of doing so, lie turned and fled in the opposite direction; that when lie did this witness fired his shotg’un to the left of McMahen to frighten and stop him, but with no purpose of actually shooting him. Witness did not see Wilson and did not intend to shoot him or any one else.

There was testimony on behalf of the State tending to contradict that of the appellant and, in effect, that appellant was armed with a shotgun loaded with buckshot; that he had stated to a neighbor during the afternoon of the day of the shooting’ that he intended to kill any one he caught in his cane patch; that, after the shooting, when appellant had notified the sheriff and carried.him to the cane patch, appellant stated to a deputy who was present that when he saw a person coming out of the patch with cane in his arms he called to him to stop and when this person did not obey he shot him and then shot again; that then he saw another boy, and if he had had another shell he would have shot him, too. This testimony refutes the contention of the appellant that the verdict of the jury was contrary to the law as given by the court and to all the evidence.

Another ground urged for reversal set up in the motion for a new trial and supported by the affidavit of the foreman of the jury was that the verdict was the result of a compromise by which some of the jurors were forced to, and did, surrender their conscientious convictions. On this ground it is sufficient to say that the only evidence offered was the affidavit referred to, which was incompetent under § 3220 of Crawford & Moses’ Digest. This section, providing in substance that grounds for a new trial cannot be established by the testimony of a juror except where the verdict was made by lot, has been frequently construed and upheld by this court. Among the decisions is that cited by the appellee, Moon v. State, 161 Ark. 234, 255 S. W. 871.

No prejudicial error appearing and the testimony being sufficient to sustain the verdict, the judgment of the trial court is affirmed.


text:
    Missouri Pacific Railroad Company v. Pipkin.
    4-3558
    Opinion delivered October 22, 1934.

      Thos. B. Pryor, H. L. Ponder and Harry Ponder, Jr., for appellant.

      Miller & Yingling and W. R. Donham, for appellee.
   Johnson, C. J.

On July 17, 1931, appellee was engaged in (service as a brakeman on one of appellant’s freight trains operating between Poplar Bluff, Missouri, and North Little Rock, Arkansas. This train carried interstate shipments, and was therefore engaged in interstate commerce. In making a stop of the train at Hoxie in this State for the purpose-of setting out certain freight cars which contained freight consigned to Hoxie, and was being transported in interstate commerce, appellee received the injuries here complained of. This suit was instituted by appellee against appellant under the Federal Employers ’ Liability Act to compensate, his alleged injuries. In effect, the complaint alleged that the engineer on said train carelessly and negligently made only one application of the air with full force in effecting the stop at Hoxie, when the usual and ordinary manner of effecting such stops should have been to apply the air gradually, causing the front of the train to suddenly stop, and the rear cars in said train to jam and violently run into and upon the cars ahead. That appellee was riding upon the rear platform of the caboose, in a place where his duties required him to ride, and the sudden and violent stop of the train caused the caboose upon which he was riding to come to a violent and sudden stop which threw appellee against the end thereof and upon certain metal attachments upon the rear platform thereof, in such manner to cause his injuries.

The testimony in behalf of appellee tended to show that, upon arrival of the train at Hoxie, and while it was running at a rate of speed of eight or ten miles per hour, the engineer caused to be made one application of the air instead of making a gradual application thereof, which caused the front cars of the train to suddenly stop, and the rear cars and caboose to suddenly and violently jam into the cars in the front of the train, which train consisted of approximately one hundred cars. That the impact was of sufficient force to tear the bunkers loose from the sides of the caboose; that the water barrel was dislodged from its fastenings to the side of the caboose, and was thrown to the floor with such violence as to burst it into pieces; that the coal bin was torn from, its fastenings and scattered the coal therein contained over the floor of the caboose. Appellee testified that, by the force of the shock and jar of the sudden and violent stop, he was thrown from his standing position on the rear platform of the caboose against the end wall thereof, and against and upon certain metal attachments thereto, and was injured thereby. He further testified that he had been engaged in railroading for the past twenty-five years, and knew the proper and customary manner in effecting such stops with similar trains, and that this train should have been stopped by leaving the throttle open and applying the air gradually or about five to seven pounds at intervals, but that this was not done by the engineer.

We shall not detail the testimony in reference to appellee’s injuries or the compensation awarded therefor, as no question is presented in reference to the amount awarded if liability exists. Appellant contends that the evidence adduced in appellee’s behalf is insufficient to support a verdict of liability. The evidence, in effect, is not dissimilar in any material respect from that reviewed by us in Missouri Pacific Railroad Company v. Montgomery, 186 Ark. 537, 55 S. W. (2d) 68, wherein we determined that it presented a question of fact for the consideration of the jury as to whether or not there was liability predicated upon such facts. The Montgomery case, supra, was presented to the Supreme Court of the United States by an application for certiorari, and a review thereof was denied. 289 U. S. 747, 53 S. Ct. 690.

A number of cases are urged upon us for consideration which are contended impair our holding in the Montgomery case, among which are Gulf, M. & N. R. Co. v. Wells, 275 U. S. 455, 48 S. Ct. 151, and Chicago, M. St. P. Ry. Co. v. Coogan, 271 U. S. 472, 46 S. Ct. 564. It may be said that the Montgomery case and the instant case may easily be distinguished from the cases cited, and it would serve no useful purpose to undertake a detailed discussion of the facts and merits of the respective cases. We believe the doctrine announced in the Montgomery case, supra, is sound and are not inclined to impair its effect.

To the same point appellant contends that appellee’s injury, to-wit: hernia, was not caused by the sudden and violent impact of the cars; therefore it is not liable for this injury. Appellee testified that, prior to the sudden impact of this train, he was a stout, and able-bodied man, capable of doing, and did do manual labor without inconvenience, and that immediately after this impact he became nauseated and suffered severe and excruciating pain until the protrusion appeared in his abdomen a day or two later; that he was bruised across the lower part of his abdomen and in the groin by reason of the impact, and was forced to undergo an operation just a few days thereafter to correct the hernia produced thereby. Dr. Parmley testified that hernia is sometime caused by direct trauma. True, eminent physicians for appellant controverted this testimony, but this made only a question for the jury’s consideration, and its findings thereon are binding upon this appeal.

Next, it is urged that appellee assumed the risks of his alleged injuries. This contention is based primarily upon the testimony of appellee to the effect that he knew that the engineer made rough stops. On this phase of the case, the court gave to the jury, upon appellant’s request, instructions number 10 and 12, as follows:

Instruction No. 10 reads as follows: “The court instructs you that, while the brakeman does not ordinarily assume the risk of injury on account of negligence on the part of his employer or fellow-servant, yet, in this case, if you find from the evidence that the engineer was in the habit of making violent and sudden stops while operating the train on which plaintiff was employed, and if you further find from the evidence that the plaintiff had knowledge of this fact, and that with this knowledge continued in the employment of the defendant with said engineer, then you are instructed that he assumed the risk of being injured on account of such violent and sudden stops as may have been made by the engineer, unless you further find that the said jar or jerk was extraordinary and unusual for said engineer to make.”

Instruction No. 12 reads as follows: “The jury are instructed that, when the plaintiff entered the employment of the railroad company as a brakeman to do and perform such work as was required by him as such employee, then, in accepting such employment, he assumed all of the risks and danger incident to and connected with 'such employment, and, if you find from the testimony that the plaintiff’s injury was occasioned from the operation of a freight train, and that the same was operated with ordinary care, and as such trains are usually handled and operated, then your verdict will be for the defendant.”

In reference to the contention here made, we have stated the rule to be that assumed risk is predicated upon the knowledge of the employee of the risks to be encountered and his consent to be subject thereto. Negligence on the part of a fellow-servant is not an incident of the employment; and the servant does not assume the risks thereof, unless they are obvious and patent. Chicago, Rock Island & Pacific Ry. Co. v. Allison, 171 Ark. 983, 287 S. W. 197. The testimony here shows that appellee had no warning to judge of the danger to which he was exposed by reason of the negligent act of the engineer in making only one application of the air with full force. At any rate, this was a question of fact for the jury’s consideration, and their adverse finding thereon is conclusive upon this appeal. ■

Lastly, it is urged that reversible error was committed in the giving and refusing to give certain instructions. We have carefully considered all the instructions requested, granted, and refused, and it is our conclusion that the case was properly submitted under instructions which conform to previous opinions of this court.

The verdict of the jury, being supported by substantial testimony, must be affirmed.


text:
    Turner v. Hot Springs Street Railway Company.
    4-3567
    Opinion delivered November 5, 1934.

      W. D. Swaim, for appellant.

      Sydney S. Taylor and Martin, Wootton & Martin, for appellee.
   Johnson, C. J.

To compensate an alleged injury, appellant brought this suit against appellee in the Garland Circuit Court and alleged: That on December 29,1932, while a passenger upon one of appellee’s street cars, which was being operated in the city of Hot Springs for such purposes, she stepped upon a piece of ice or frozen snow negligently left in the vestibule of said car by appellee which caused her to slip and fall, and thereby she was seriously and permanently injured. In reference to the circumstances under which she was injured, appellant testified:

That on the date named in the complaint she was a passenger upon one of appellee’s street cars which was being operated in the city of Hot Springs for such purposes, and while debarking therefrom she stepped down into the vestibule of said car, and her left foot slipped and “went out from under me like lightning,” and thereby received a very hard fall. She then detailed the extent of her'injuries, but we deem it unnecessary to here set out this testimony. Dr. Evans testified that he assisted in the removal of Mrs. Turner from the street car on the day she was injured, and that he saw a “number of small pieces of snow and ice, thin in form, like it had been kicked off the shoe heel or shoe sole,” lying in the vestibule of the street car.

This, in effect, is all the testimony offered by appellant in reference to the receipt of her injuries and circumstances under which they were received. In passing, it may be said that the testimony tended to show that appellant was seriously and permanently injured by reason of the fall received. The trial court, upon the evidence thus adduced, directed a verdict in favor of appellee, and this appeal is prosecuted seeking reversal.

The trial court was correct in directing a verdict for appellee, because the testimony adduced by appellant was not sufficient to show tliat the injuries received were proximately due to any negligence of appellee. No witness testified that appellant’s fall was proximately due (o the small pieces of snow and ice afterwards seen in the vestibule of the street car. It is true, the jury might have guessed or speculated that her fall was caused by stepping upon the small pieces of ice and packed snow in the vestibule of the street car, but, on the other hand, it was equally as probable that her fall was caused by packed snow or ice which had accumulated on her own shoes. The point is, juries are not permitted to guess or speculate as to the proximate cause of an alleged injury, the burden resting upon appellant to show by a preponderance of the evidence that her injuries were caused by some negligent act or omission of appellee. Covington v. Little Fay Oil Co., 178 Ark. 1046, 13 S. W. (2d) 306; Kirkpatrick v. American Railway Express Co., 177 Ark. 334, 6 S. W. (2d) 524; Missouri Pacific Rd. Co. v. Horner, 179 Ark. 321, 15 S. W. (2d) 994; International Harvester Co. v. Hawkins, 180 Ark. 1056, 24 S. W. (2d) 340; Ft. Smith L. & T. Co. v. Cooper, 170 Ark. 286, 280 S. W. 990; Denton v. Mammoth Springs Electric Light & Power Co., 105 Ark. 161, 150 S. W. 572.

In the recent case of National Life & Accident Ins. Co. v. Hampton, ante p. 377, 72 S. W. (2d) 543, we stated the applicable rule as follows: “It is the well-settled doctrine in this State that a jury’s verdict can not be predicated upon conjecture and speculation,” and continuing we adopted the rule as announced by the Supreme Court. of the United States in Patton v. Texas & Pacific Ry. Co., 179 U. S. 658, 21 S. Ct. 275, as follows: “It is not sufficient for the employee to show that the employer may have been guilty of negligence — the evidence must point to the fact that he was. And where the testimony leaves the matter uncertain, and shows that any one of half a dozen things may have brought about the injury, for some of which the employer is responsible and for some of which he is not, it is not for the jury to guess between these half a dozen causes and find that the negligence of the employer was the real cause, when there is no satisfactory foundation in the testimony for that conclusion. ’ ’

Moreover, where it conceded that appellant’s fall and consequent injuries were due proximately to her slipping- upon the small pieces of ice and snow seen by Doctor Evans in the vestibule of the street car, this would yet be insufficient to show negligence upon the part of appellee. Before negligence could be inferred, it must have been made to appear from the evidence that appellee permitted this accumulation of ice and snow or that it had been in the vestibule of the car such length of time as to afford an opportunity for removal and a neglect so to do. Riley v. Rhode Island Co., [29 R. I. 143, 69 Atl. 338] 15 L. R. A. (N. S.) 523, and case note.

No error appearing, the judgment is affirmed


text:
    N. O. Nelson Manufacturing Company v. Benjamine.
    4-3570
    Opinion delivered November 5, 1934.

      George A. McConnell, for appellant.

      James R. Yerger, for appellee.
   Smith, J.

This is a suit by appellant to enforce a materialman’s lien, and there appears to be no substantial conflict in the testimony, which is to the following effect: F. P. Pierce, operating as Pierce Lumber Company, was engaged in the retail lumber business, and in connection with that business sold building supplies, much of which he had bought from appellant over a period of several years. These supplies were sold on an open account, which appears to have been mutually satisfactory. The lumber company was regarded as a good customer. J. W. McLeod was the appellant’s traveling salesman and representative in that territory.

Pierce testified that he had an arrangement with a building contractor under which he “guaranteed the maximum amount of cost (of building material) for the benefit of selling my stuff, ’ ’ but that he occasionally took building contracts to be performed by himself. He took such a contract to build a residence for H. C. Benjamine. Before the. completion of the building Benjamine decided that he wanted an “Areola heating plant” installed. This was in addition to the original building contract. It so happened that McLeod was in that territory at that time, and he and Pierce went with Benjamine to figure on the cost of installation. The. necessary measurements and calculations were made and the price-was agreed upon. Benjamine inquired at the time as to whom payment should be made, and stated that he was prepared and willing to make, payment then and there. McLeod answered: “Make it to Mr. Pierce; he is our representative. We have sold goods to him for a long time, and we are not afraid of him.” The heating plant was installed, and Benjamine paid Pierce for it. Pierce was adjudged a bankrupt, and failed to .pay appellant, whereupon this suit was brought to enforce a lien.

It was shown by appellant that McLeod was a traveling salesman, having authority only to receive and transmit orders for acceptance, to be filled after acceptance, and that he had no authority to make collections. It was shown, however, that McLeod had made collections which had been received and credited by appellant, but this was done by the receipt and transmission of checks payable to appellant’s order.

The decree recites a finding of fact substantially as stated above, and this finding is not contrary to a preponderance of the evidence. Indeed, it appears to be supported by the undisputed evidence. Upon this finding the court held that appellant was estopped to deny that payment had been made, and denied the claim for a lien or for a judgment against Benjamine for the debt, and this appeal is from that decree.

For the reversal of this decree, cases are cited defining the authority ordinarily possessed by traveling salesmen. Of these the case of United States Bedding Co. v. Andre, 105 Ark. 111, 150 S. W. 413, is chiefly relied upon. In that case a traveling salesman made a contract to post advertisements of the articles which he was selling. In holding that the salesman had no authority to make the contract, it was there said: “The purpose for which a traveling salesman is employed is to solicit orders and make sales of goods; unless he is specially authorized to do so, he has no implied authority to do any act other than is usually done by other salesmen of like character; that is, to do those things and make those agreements which are necessary and usual to accomplish the purpose of this agency. Being employed for one purpose, he has no authority to do another, either actual or implied.” For the reason stated it was held that the salesman had no authority to make the contract to post the advertisements.

But this opinion states the law to be that the agent has the authority to do those things which are essential to effect the purpose of the agency, and while an agent may not have the authority to make collections of the purchase price upon taking an order for future delivery, he does have the authority to make agreements as to the price, the time and place of delivery, and the terms of payments to be made.

In the volume on Agency in Restatement of the Law (American Law Institute), it is said, at § 55 thereof, that: “Unless otherwise agreed, authority to contract for a purchase or sale includes authority to enter into negotiations for and to complete the purchase or sale, including therein usual or other appropriate terms, and, if a writing is required or is usual, to execute such writing. ’ ’

In Clark & Skyles on the Law of Agency (% 245) it is said: “Where an agent is employed generally to sell goods, as incident to his general authority, he. has power to fix the terms of sale, including the time, place and mode of delivery, the price, quality, and quantity of the goods, and the time and mode of payment, to the extent at least of what is customary and not extraordinary.”

It was not shown to be contrary to any custom, nor does it appear to have been extraordinary, for McLeod to have directed Benjamine to make, payment to Pierce, appellant’s customer and representative to whom the material was sold, and to whom it was delivered, and whose account was represented as being satisfactory, and to whom other material had been sold and delivered by appellant.

In the very recent case of McMillan v. Marathon Oil Co., 188 Ark. 937, 68 S. W. (2d) 473, it was said that: “We have many times held that one dealing with an admitted agent had the right to presume, in the absence of notice to the contrary, that he is a general agent, clothed with authority co-extensive with its apparent scope.”

McLeod was an admitted agent clothed with the actual authority to sell the heating plant, and we think the court was warranted in finding, as was found, that it was within the apparent scope — if not within the actual scope — of the agent’s authority to agree upon the manner of payment. Harrison Nat. Bank v. Williams, 3 Neb. (Unoff.) 89 N. W. 245; Putnam v. French, 52 Vt. 402, 38 Am. Reps. 682; Mechem on Agency, vol. 1 (2d ed.), §§ 854 and 871; International Harvester Co. v. Smith, 51 Fla. 220, 40 Sou. 840; Fayetteville Wagon Co. v. Kenefick Construction Co., 76 Ark. 615, 88 S. W. 1031; Lovett v. Eastern Oil Co., 68 W. Va. 667, 70 S. E. 707; Superior Mfg. Co. v. Russell, 127 Ga. 151, 56 S. E. 296.

It was said, in the case of A. J. Chestnut Co. v. Hargrave, 177 Ark. 687, 7 S. W. (2d) 800, that: “In short, the general rule in this State is that the principal is bound by the acts of Ms agent which are within the real or apparent scope of his authority,” and the cases there cited fully sustain the rule announced.

It requires no citation of authorities to support the conclusion that, if the debt was paid, there could be no judgment therefor, nor lien to enforce its payment. We conclude therefore that the decree is correct, and it is affirmed.

McHaney, J., dissents.