ARK.] WHITE V. WILLIAMS. 41 WHITE V. WILLIAMS. 4-3972
Opinion delivered January 20, 1936. APPEAL AND ERROR—TRIAL OF EQUITY CASES.—Equity cases are determined de novo upon the record made in the court*below. 2. APPEAL AND ERROR—TRIAL OF EQUITY CASES.—Equity cas'es are reversed upon appeal only where the chancellor haS decreed contrary to a preponderance of the testimony. 3.. EVIDENCE—BURDEN OF PROOF.—The burden of proof rests upon the party litigant who makes an affirmative allegation. 4. COUNTIES—FEES OF SHERIFF.—Evidence held not 'to establish liability of the sheriff for fees alleged to have been received in ex-: cess of the constitutional salary where the amount alleged to have been received was largely speculative because the sheriff kept no record of jail expenditures under direction of the State Comptroller, since a statute (Acts 1931, No. 1) provided that the expense of keeping prisoners should be . 85 cents per day. 5. APPEAL' AND ERROR—DISCRETION OF TRIAL COURT.—The contention. that insufficient time was afforded by the trial court to exafnine certain exhibits held to show no reversible error, where no abuse of the court's discretion was shown. Appeal from Pulaski Chancery Court; Henry Don-ham, Special Chancellor ; affirmed. . . Suit by John White against Blake A. others. • From a decree for defendants, plaintiff iias appealed. Griffin Smith, for appellant. J. F. Loughborough, for appellee. JOHNSON, G. J. This is a continuation of the litigaz-- tion reported in 187 Ark. 113, 59 S. W. (2d) 23. We there re-Versed and remanded the cause with directions -to overrule the demurrer to the coMplaint which had been previously sustained by the lower court, and for •further proceedings. The suit was originally . instituted by a taxpayer against the:sheriff and collector Of Pulaski County
42 WHITE V: WILLIAMS. [192 to require him as such official to pay into the proper depository all fees and emoluments of his office during the years 1931 and 1932 in excess of the constitutional salary of $5,000 per year. Upon trial the chancery court determined from all the testimony adduced that the complaint was without substantial merit and dismissed it for want of equity, from which order this appeal comes. Under repeated opinions of this court we determine equity cases de novo upon the record made in the court below (Gravette Construction Co. v. Gregory, 184 Ark. 1193, 42 S. W. (2d) 987 ; Hangen v. Brewer, 185 Ark. 1188, 47 S. W. (2d) 789), but reverse only those cases where the chancellor has found or decreed contrary to a preponderance of the testimony (Harlan V. Edwards, 182 Ark. 1185, 31 S. W. (2d) 127; Jackson v. Banks,.182 Ark. 1185, 33 S. W. (2d) 40), and it is also fundamental that the burden of proof rests upOn the party litigant who makes an affirmative allegation (Johnson v. Mitchell, 164 Ark. 1, 260 S. W. 710; Jcuines v. Orre//, 68 Ark. 284, 57 S. W. 931). With these cardinal . principles in mind we proceed to an analysis of the testimony. A witness; Mr: Durden, in behalf of appellant, taxpayer, testified in effect that he was an accountant in the State Comptroller's employ, and as such made an investigation of and stated the account between appellee, sheriff and ccillector and Pulaski County on the jail receipts and expenditures for the years 1931 and 1932; that from such investigation he found that appellee was due Pulaski County, $27,008.22. This witness further testified that the items allowed by him in his reporf a§ expenses for keeping the jail were largely speculative because appellee had kept no books or record from which the actual expenses incurred might be ascertained; but that his allowances for expenses were in line with those incurred by appellee's predecessor in office and also in line with appellee's reported •expenses during his first months in office. Appellee testified that he kept no record of the expenditures for jail expenses subsequent to February, 1931, because directed not to do so by Mr. Reed the then State Comptroller whose•opinion was based and grounded upon act 81 of 1931, but that
ARK.] WHITE v. WILLIAMS. be did know that he made no net profit out of his jail account for either the yeaT 1931 or 1932. Appellee's testimony was corroborated by that of a major in the United States Army .who was detailed as quartermaster of the C. M. T. C. at Camp Pike in 1931. This testimony, although treated by us in' the most general way, shows' that the. chancellor 's decision rests upon sharply conflicting testimony, and . we are not willing to hold that his finding of fact is against the preponderance of the testimony. Appellant's primary insistence seems to be, that 'since § 4636 et seq. of Crawford &-Moses' Digest peremptorily direct certain officials to keep reCerd bOoks of fees and emoluments of their office received, a neglect of this duty by such official renders him ,liable, irrespective of his good faith in the premises We cannot subscribe to , this doctrine. Act 81 of 1931 was a legislative ascer-taiimient that the actual cost of keeping and feeding prisoners in the Pulaski county jail was 85 cents per day per prisoner, and this is true, even though this court subsequently determined that said act 'was unconstibitional . and Voi'd; . and this is true, even ' though no 'affirmative rightS 'could be ;predicated thereon. A conipliance with said act by app . ellee and his reliance thereon are circumstances tending to show .his good faith in the transactions ; and, when . we Consider that the State Comp-ti . oller directed coratIliance With said act,. treating it as valid, it certainlY negatives any deliberate intent On ap-pellee's part to ignore Other statutory direCtions (Bailey v.. Taylor, 189 Ark. 313; 71 S: 'W. (2d) 470), and moreover did not relieVe appellant o s f the burden of ' establishing the allegations contained in • hi's complaint. Appellant also complains that time was not afforded him by the trial 'court to inVestigate and examine certain . exhibits filed by appellee in the course of the trial. The Conduet of litigation is lodged in the sound 'discretion of the trial court, and we do not reverse except for an : abuse . of this 'discretion.. Collins v: Korotobshy, 36 Ark: 316 ; M.'.V. Railroad Co. v. Hamilton; 84 Ark.' 81, 104 : S: W. 540.' We 'are not willing tO say that . this assignment 'presents . reversible . error. The decree is in all things:affirmed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.