Opinion
No. 35331.
October 25, 1943.
1. COUNTIES. Paupers.
County levy for Food Stamp Plan and pauper maintenance which did not state separately what portion thereof was for Food Stamp Plan and what portion was for pauper maintenance failed to comply with statute requiring county-wide levies made for any "general" or "special purpose" to be separately stated (Code 1930, sec. 5694 et seq., sec. 3227, as amended by Laws 1940, ch. 251, sec. 1, subd. 8; Laws 1932, ch. 104; Laws 1940, ch. 252).
2. PAUPERS.
Any tax levied for support of paupers is for a "special purpose" and is not governed by statute limiting levy for "general purposes" of county (Laws 1932, ch. 104).
3. PAUPERS.
The absence of express limitation on authority of county board to assess taxes for support of poor justified implied limitation that taxing authorities should levy only such amount as might be reasonably necessary for support of poor of county who were within class contemplated by statute (Code 1930, secs. 5694 et seq., 5701).
4. EVIDENCE.
It is a matter of common knowledge that only a small percentage of those participating in benefits of Food Stamp Plan were paupers for whom special tax was authorized by statute (Laws 1940, ch. 252; Code 1930, sec. 5701).
5. TAXATION.
The power to levy and collect taxes is conferred by statute and can be exercised only in manner authorized by statute.
6. STATUTES.
Tax statutes are construed against taxing power and all doubts are to be resolved in favor of taxpayer.
7. COUNTIES.
In statute authorizing counties cooperating with federal agency in maintaining Food Stamp Plan to issue notes payable from taxes levied and collected for the general fund or pauper fund, the term general fund refers to levy for general county purposes and term pauper fund refers to amount reasonably necessary for support of poor (Code 1930, sec. 5694 et seq.; Laws 1940, ch. 252).
ROBERDS, J., and SMITH, C.J., dissenting in part.
APPEAL from circuit court of Chickasaw county, HON. T.H. McELROY, Judge.
George Bean, of Okolona, for appellant and cross-appellee.
The circuit court of the First Judicial District of Chickasaw County, Mississippi, erred in overruling the order of the board of supervisors of Chickasaw County, dismissing appellee's claim for refund of taxes paid in the sum of $2336.11, collected by the sheriff pursuant to and by virtue of levy made under the caption, "Food Stamp Loan Warrant."
The only question to be presented to the Supreme Court for decision on this appeal is whether the words "Loan Warrant," which were used in the levy when the word "Note" should have been used, so vitiate the levy insofar as it concerned this particular item as to make this levy void and illegal and entitle appellee to recover taxes. It might be well to consider the laws and parts of laws under which, first, the Food Stamp Plan was adopted by the county board, and, second, those under which the tax to pay for same was levied and collected.
Code 1930, Sec. 5694 et seq., Sec. 3227, as amended by Laws 1940, Ch. 251, Sec. 1, subd. 8; Laws 1932, Ch. 104; Laws 1940, Ch. 252.
There is no doubt but that the legislature of 1940 realized that there would be many counties in the state which were desirous of taking advantage of this plan but could not participate because they could not provide necessary monies for revolving fund and maintenance expenses required by the Department of Agriculture, in that all of the general fund had been budgeted and allocated to some other specific purpose. In order for those counties who were hardput to raise sufficient revenue by taxation to pay the general expenses, naturally and normally coming out of the general fund, without adding this burden, the legislature provided as set out in Section 4 above that they could borrow sufficient money to be repaid on March 1st of the next succeeding year from that which it was borrowed, out of the first monies collected from taxes levied and collected for the general fund or the pauper fund. Why was it provided that it could be taken from the pauper fund as well as the general fund? The answer is obvious. Section 5701 of the Code of 1930 provides: "Tax for support of poor. — The Board of Supervisors shall annually assess and cause to be collected by the tax collector, and paid into the county treasury, such tax as may be necessary for the support of the poor in the county."
There is no limit put on the amount of taxes which can be levied and collected for the pauper's fund, and the reason for this is plain. There could be no way for the legislature to know or anticipate just how much money would be needed for the care and support of the poor of the county. The amounts are from necessity bound to fluctuate from year to year, due to epidemics, diseases, financial disasters, etc., over which no human power could have control. The legislature in its wisdom realized this and so left the levy and amounts to the discretion of the local taxing authorities, without imposing any limit according to classification of the different counties. The Food Stamp Plan was by its very nature designed and inaugurated to aid and assist the indigent of the counties, those classed as the poor. The rules and regulations provided that only those who were unable by their own efforts to properly feed themselves to insure good health in the community, could participate. In nowise can pauper and poor expense of a county be considered a part of the general expense, within contemplation of law. It is a special expense, and within contemplation of law to be taken care of by the levy of a special tax.
It is true that Chapter 104, Laws of 1932, as amended, fixes a maximum levy for Chickasaw County for general county purposes of 8 mills. Appellant admits that if this total levy of 8 mills for Food Stamp Plan could be considered a part of the levy for general county purposes, instead of for a special purpose, it could not be sustained by law, because it would exceed the 8 mills. The levy for 1941-1942 for general county purposes was 8 mills, the maximum allowed by law. The purposes for which these mills were levied were set out in the levy, as required by law, and this levy was made with special attention and reference to Chapter 251, Laws of 1940, which amends Chapter 104, Laws of 1932 and Chapter 28, Laws of Extraordinary Session of 1938, as will be noted by referring to the order of the board adopting the levy. Subhead 7, Section 1, Chapter 251, Laws of 1940, provides as follows: "For loans, notes or any other obligation, and the interest thereon, if permitted by law." And subhead 8, Section 1, Chapter 251, Laws of 1940, provides as follows: "For any other purpose for which a levy is lawfully made." Appellant submits that the levy of 8 mills for Food Stamp Plan for 1941-1942 could have been lawfully made under either of these provisions. The 5-mill levy was made to repay a loan evidenced by a note for the benefit of the poor of the county. It was authorized by Section 4, Chapter 252, Laws of 1940. The money derived therefrom was used by the county in carrying out the Food Stamp Plan and for no other purpose.
The trial judge in the circuit court ruled adversely to appellant on the 5-mill levy item because the words "Loan Warrant" were used instead of the words "Loan Note." Under the provisions of Chapter 251, Laws of 1940, the principal law under which this levy was made, it is provided that, "If a county-wide levy is made for any general or special purpose under the provisions of any law other than Section 2, Chapter 104, Laws of 1932, each such levy shall be separately stated." This levy of 5 mills was separately stated and this provision of the law was complied with. Now, in just what way was the appellee and other taxpayers of Chickasaw County damaged by the use of the words "Loan Warrant" instead of "Loan Note?" Just how did the use of the word "Warrant" instead of the word "Note" violate their rights to interfere and protect themselves from unjust and illegal taxation? What damage did they suffer because the word "Warrant" was used instead of the word "Note" which could have been prevented if the word "Note" had been used instead of the word "Warrant?" We submit that the reasonable answers to these questions are under the law favorable to appellant.
Chapter 252, Laws of 1940, provides that counties may sponsor Food Stamp Plan and borrow money to be repaid from the first monies to be collected for pauper's fund, without notice to taxpayer of the intention to borrow the money necessary. There is no limitation placed by law on the milleage that can be levied for the pauper's fund. It is a special tax for a special purpose, and is not within contemplation of the law a part of the general tax, provided for in Chapter 251, Laws of 1940. It is a county-wide levy for a special purpose.
The circuit court was very correct in upholding the dismissal of the claim of cross-appellant, originally filed with the board of supervisors, for $1,341.66. The levy of the 3 mills complained of complies in detail with the requirements of Chapter 251, Laws of 1940. It certainly can't be argued with any assurance that "For Food Stamp Plan Pauper Maintenance" is not comprehensible and understandable. The item was included and levied for a purpose authorized by law, and was separately stated. This could mean but one thing; it was levied to take care of the expenses of putting the plan into effect, and administrative expenses, such as salaries, office rents, etc. There had already been a levy made to take care of the indebtedness incurred for the revolving fund, as set out in the levy. We can't agree with counsel for cross-appellant in his contention that there is nowhere in Chapter 252, Laws of 1940, authorization for administrative expenses to be paid out of the pauper's fund.
See Laws of 1940, Ch. 252, Secs. 2, 4.
A 1-mill tax levied for support of paupers under statute authorizing county board of supervisors to assess such tax as might be necessary for the support of the poor was valid, notwithstanding that such tax, when added to the tax for general county purposes, was in excess of limit for general county purposes, since tax for support of paupers was for a special purpose and was not governed by statute dealing with tax for general purposes.
Board of Supervisors of Attala County v. Illinois Cent. R. Co., 186 Miss. 294, 190 So. 241.
We believe that there is no need to argue in detail the question of whether there is authority to levy a tax to pay for the plan to be placed in pauper's fund, when collected. It just simply can't be intelligently argued that there was no authority to levy such a tax, when the very life of the enacted statute depended on the authority for and the legality of the levy, since without this right the purpose of the statute would be defeated from the beginning. The legislature recognized that a great many of the counties were so circumscribed and limited by laws in the amounts they could borrow, and that it would be impossible for most of them to participate in this plan, unless some means other than those existing were devised. So it enacted Chapter 252, Laws of 1940, which enabled the counties who had no available funds to get them by a levy for the pauper's fund, the amount for which is unlimited by general law and the rulings of this court. A special levy of a special tax for a special purpose, by authority embodied in the Constitution of Mississippi, Chapter 251, Laws of 1940, and Chapter 252, Laws of 1940, and Section 5701 of the Code of 1930, is not to be considered in relation to the levy for general county purposes.
Fred B. Smith, of Ripley, for appellee and cross-appellant.
The order of the board of supervisors undertaking to issue the so-called "Tax anticipation note" of Chickasaw County, Mississippi, was utterly void because of its failure to recite the necessary jurisdictional facts.
Brown v. Board of Supervisors of Simpson County, 185 Miss. 216, 187 So. 738; Lee v. Hancock County, 181 Miss. 847, 178 So. 790; Laws of 1932, Ch. 235, Sec. 3; Laws of 1940, Ch. 252.
The attempted tax levy of 5 mills for "Food Stamp Loan Warrant" was void, because of the vague and indefinite manner in which it was undertaken to be levied and its failure to comply with the requirements of law.
Gulf S.I.R. Co. v. Harrison County, 192 Miss. 114, 4 So.2d 717.
There was no authority of law whatever for the levy of such a tax.
The tax was excessive and illegal under the limitations fixed by Chapter 104 of the Mississippi Laws of 1932.
The levy was illegal because it was sought to be made under the provisions of Chapter 252 of the Laws of 1940, yet it was in nowise authorized by that chapter of law.
The 3-mill tax levy is vague, indefinite and uncertain; it is confusing in that it undertakes to make a levy of taxes under the same heading for two separate and distinct purposes without any segregation or designation as to what portion thereof was to be for one purpose and what portion was to be used for the other purpose. It too violates the provisions of Chapter 251 of the Laws of 1940, the last clause of which says that where a levy is made for any general purpose under the provisions of any law of this Section 2, Chapter 104, Laws of 1932, "each such levy shall be separately stated." This levy is not separately stated, but is stated in the conjunctive for two separate and distinct purposes.
The Food Stamp Act, Chapter 252 of the Laws of 1932, nowhere provides that anything in the way of operating expense can be paid out of the pauper fund.
It is true that this court in the case of Board of Supervisors of Attala County v. Illinois Cent. R. Co., 186 Miss. 294, 190 So. 241, held that the board of supervisors could levy taxes for the support of paupers under the provisions of Section 5701 of the Code of 1930. Section 5701 is under Chapter 144 of the Code of 1930, dealing with paupers generally, but there is a vast difference between paupers and the tens of thousands of people throughout Mississippi who secured Food Stamps. To authorize the levy of a specific new tax, a separate tax, and an additional tax, for the maintenance of the Food Stamp Plan, some law would have to be enacted other than Section 5701.
We further submit that although this court has held that Section 5701 of the Code of 1930 authorizes the levying of a special and additional tax for paupers, there would be some limitation to the tax that could be levied thereunder. The limitation is that no tax can be levied under Section 5701, except a tax sufficient to carry out the provisions of Chapter 144, dealing with paupers, which provides for a county home, and the maintenance of paupers in that county home. That section does not remotely authorize the levying of a large additional tax for Food Stamp Plan.
Chapter 252 of the Laws of 1940 does not authorize the levying of a tax therefor, nor does it provide that the tax levied for paupers can be increased so as to take care of it. It simply provides that if there was available funds in the pauper fund that could be used for the original revolving fund, or if moneys were borrowed for the Food Stamp Plan they could be repaid out of the pauper fund. Any other expense should come out of the county treasury, and not out of the proceeds of a separate and distinct and additional tax.
In a long list of cases this court has announced the rule that taxing statutes of doubtful meaning are construed against the taxing power, and all doubts are resolved in favor of the taxpayer.
Gulf S.I.R. Co. v. Harrison County, 192 Miss. 114, 4 So.2d 717.
Laws are to be strictly construed against the taxing power. The power cannot be implied. All doubts must be resolved in favor of the taxpayer.
Gully, State Tax Collector, v. Jackson International Co., 165 Miss. 103, 145 So. 905.
See also Mississippi Railroad Commission v. Western Union Tel. Co., 107 Miss. 442, 65 So. 505.
This appeal involves the question of the alleged validity of a 5-mill tax levied by the board of supervisors of Chickasaw County, in October, 1941, for a "Food Stamp Loan Warrant," and also a 3-mill tax levied for "Food Stamp Plan and Pauper Maintenance," both of said tax levies being in addition to the maximum ad valorem tax of 8-mills authorized by law and imposed by the board at said October meeting for general county purposes under the limitations prescribed by Chapter 104, Laws of 1932 in counties having an assessed valuation of not less than $3,000,000 and not more than $8,000,000.
Appellee railroad company paid its taxes, under protest, in the sum of $2,236.11 collected on the 5-mill tax levy, and the sum of $1,341.66 collected under the 3-mill tax levy, and thereafter filed its claim before the board of supervisors for a refund thereof, setting forth the grounds upon which the validity of such tax levies was being challenged. The claim for each of these amounts having been rejected and disallowed, there was an appeal to the circuit court on an appropriate bill of exceptions, and with the result that said court reversed the decision of the board of supervisors as to the $2,236.11 collected under the 5-mill levy and allowed such refund, but affirmed the decision of the said board in disallowing the refund of $1,341.66 collected under the 3-mill tax levy. From this judgment allowing the refund of the tax collected under the 5-mill levy the county has prosecuted this appeal and the appellee railroad company has taken a cross-appeal as to the disallowance of the refund of the sum collected under the 3-mill tax levy, as aforesaid.
One year prior to making the said tax levies the board of supervisors had considered the matter of cooperating with the Federal Surplus Commodities Corporation, of the United States Department of Agriculture, in putting into effect in Chickasaw County the project known as the "Food Stamp Plan," as provided in Chapter 252, Laws of 1940; and by an order then entered upon its minutes the board declared its intention of thus co-operating to the extent of furnishing the money necessary to create a revolving fund, as required by the said governmental agency and as provided for in the act aforesaid, but specifically declared in such order that its purpose was not to furnish any funds except those necessary to buy the stamps sufficient to put the plan or project into effect, and not to furnish funds for the operation or administration of the said plan in any manner. However, on February 4, 1941, the board entered a further order issuing a negotiable tax anticipation loan note in the sum of $12,000, payable to O.B. Walton and Company, of Jackson, Mississippi, and reciting in said order that at its October meeting, 1940, it had declared its intention to co-operate with the Federal Surplus Commodities Corporation to the extent of not only putting up the funds required for the establishment of a revolving fund but also for the payment of necessary expenses of the said "Food Stamp Plan" after the same had been put into effect, which, under the provisions of the act, would include the lease, equipment, and furnishing of a building or other suitable quarters in which to establish, maintain, and operate a Food Stamp Issuing Office, and to pay for such personnel and help as might be required by the said corporation for the maintenance and operation of the said office, the act providing that the rentals, salaries, and incidental expenses thereof be paid monthly by the counties and cities participating in the said plan, and from their respective treasuries.
The said tax anticipation loan note was made payable March 1, 1942, as provided in said Chapter 252, Laws of 1940, but it was stipulated in the order of the board so providing for the issuance thereof that the same was to be paid "out of the tax levied for the Pauper Fund, or to be levied for the year 1941," since the act under which the said loan note is purported to have been issued provides that such a note "shall be paid out of the first moneys collected from taxes levied and collected for the general fund or pauper fund." This order prescribed the form of note to be executed in favor of the said O.B. Walton and Company, and recited that the note "is issued for money borrowed in anticipation of taxes collected for the year 1941, for the purpose of defraying the expenses of said county during the said year in co-operating in the establishment of the Food Stamp Plan, . . ., and is payable from a special tax to be levied and collected as provided by law." The order then further provides that for the prompt payment of the note, the board of supervisors "does hereby pledge itself and its successors in office to levy and collect a tax for the Pauper's Fund, out of which this note is to be paid, upon all the taxable property in said county for the year 1941, and sufficient for the payment thereof."
However, when, at its October, 1941 meeting, the board of supervisors made its ad valorem tax levy for the ensuing fiscal year, it undertook to levy, in addition to the eight mills of ad valorem taxes for general county purposes, an item designated as "For Food Stamp Loan Warrant . . . . . . . 5:00 Mills," and a further item designated as being "For Food Stamp Plan Pauper Maintenance . . . . . . . . . 3:00 Mills."
Section 1, subd. 8, Chapter 251, Laws of 1940, amending Section 1, Chapter 28, Laws of 1938, Ex. Sess., amending Section 3227 of the Code of 1930, provides, among other things, that the order of the board of supervisors in making its ad valorem tax levy "shall state all of the purposes for which the general county levy is made, . . . but the rate or levy for any item or purpose need not be shown; and if a county-wide levy is made for any general or special purpose under the provisions of any law other than section 2, chapter 104, Laws of 1932, each such levy shall be separately stated." Manifestly, in the case before us, both the 5-mill levy and the 3-mill levy were made under the supposed authority of Chapter 144, Code of 1930, to levy such taxes as a Pauper Fund, since there is no authority whatsoever granted in Chapters 251 and 252, Laws of 1940, or elsewhere, for the levy of a special and new tax of five mills or any other mill levy to take care of the "Food Stamp Plan" in co-operation with the Federal Surplus Commodities Corporation of the United States Department of Agriculture; and this is likewise true of the 3-mill levy, which is designated as being for a dual purpose, that is to say, "for Food Stamp Plan and Pauper Maintenance" the latter failing to state separately what portion thereof is for the Food Stamp Plan and what portion is for Pauper Maintenance, — a fact required to be shown by the said Section 1, subd. 8, Chapter 251, Laws of 1940, since it was held in the case, Board of Supervisors of Attala County v. Illinois Cent. R. Co., 186 Miss. 294, 190 So. 241, that any tax levied for the support of paupers is for a special purpose, and not governed by Chapter 104, Laws of 1932, limiting the levy for general county purposes. Moreover, the board had expressly provided in its order directing the issuance of the tax anticipation loan note that it was being made payable out of a special tax to be levied for the Pauper Fund.
In Chapter 144, Code of 1930, it will be found that Section 5695 authorizes the board of supervisors to purchase not more than 160 acres of land for a county home; that Section 5698 provides that such paupers in the county home as may be able to work may be employed by the superintendent thereof in labor; that Section 5699 provides that in case of an emergency temporary relief may be given to a pauper until he can be removed to the county home; and that Section 5701 authorizes the board of supervisors to assess annually and cause to be collected by the tax collector and paid into the county treasury, such tax as may be necessary for the support of the poor of the county. Thus, we are afforded a declaration of the legislative purpose in authorizing a special tax to be levied for the support of the paupers, as well as a designation of the class of persons entitled to be supported out of a special tax provided therefor; and it will be observed that the tax is for the support of those in the county home and in granting temporary relief, in cases of emergency, until such poor persons can be removed to the home. Moreover, an obligation is imposed by Section 5706, Code of 1930, upon certain relatives to relieve and maintain a pauper.
It is conceded in the case at bar that prior to 1941 it had not been deemed necessary for Chickasaw County to levy a special tax for the support of the poor therein, the expense thereof having been theretofore paid out of the levy for general county purposes. And yet it will be seen that in making its ad valorem tax levy for the fiscal year beginning in October, 1941, there is sought to be imposed on the taxable property in said county a total tax of eight mills as special levies for the Pauper Fund, and which said special levies of five mills and three mills, respectively, on a total ad valorem assessment of $3,441,623 have resulted in the collection of an aggregate tax of $27,532.97, levied for the purpose of paying a $12,000 tax anticipation loan note.
But it is argued that Section 5701, Code of 1930, authorizing the board of supervisors to assess annually and cause to be collected such tax as may be necessary for the support of the poor of the county, has imposed no limitations upon the amount that may be levied thereunder. A sufficient answer to this contention is that in the absence of an express limitation it is to be implied that the taxing authorities should levy only such an amount as might be reasonably necessary for the support of the poor of the county who are within the class contemplated by said Chapter 144, Code of 1930. The fact that no fixed limitation is placed upon the amount of the tax to be collected for the Pauper Fund should serve to admonish the taxing authorities not to invoke this power as a means of levying taxes for other purposes under the guise of a fund to support the poor, it being a matter of common knowledge that only a small percentage of those participating in the benefits of the Food Stamp Plan came within the classification of the paupers for whom a special tax levy is authorized under said Section 5701, Code of 1930. The amount of money collected in this instance for the Pauper Fund, as hereinbefore shown, should afford ample support of the view that the lawmaking power intended that the board of supervisors should levy only such a tax as in its sound discretion was found to be reasonably necessary for the support and maintenance of the class of persons dealt with by this Code chapter in that behalf.
In the case of Gully, State Tax Collector, v. Jackson International Co., 165 Miss. 103, 145 So. 905, 907, the court said: "[Tax] laws are to be strictly construed against the taxing power. The power cannot be implied. All doubts must be resolved in favor of the taxpayer." The power to levy and collect taxes is conferred by statute, and when so conferred, can be exercised only in the manner pointed out by the statute. Mississippi R. Comm. v. Western Union Tel. Co., 107 Miss. 442, 65 So. 505. And this court has uniformly held that tax statutes are construed against the taxing power, and that all doubts are to be resolved in favor of the taxpayer. Gulf S.I.R. Co. v. Harrison County, 192 Miss. 114, 4 So.2d 717.
Chapter 252, Laws of 1940, empowering counties to co-operate with the Federal Surplus Commodities Corporation of the United States Department of Agriculture, in maintaining the food stamp plan of said corporation, contains no provision for the levying of any special or new tax, as heretofore stated. It provides that in any case a county undertaking to so cooperate which "does not have sufficient funds available to create said revolving fund and to pay said expenses, . . . is authorized and empowered to borrow from time to time such sums as will be required to create said revolving fund and to pay said expenses, and to execute its negotiable note or notes therefor, to become due and payable not later than March 1 of the year next succeeding the year in which said notes are issued. . . . and said notes shall be paid out of the first moneys collected from taxes levied and collected for the general fund or pauper fund."
The term "general fund" manifestly has reference to the 8-mill levy for general county purposes, and the term "pauper fund," evidently, has reference to such fund as is ordinarily levied in an amount reasonably necessary to support the poor of the county within the meaning of Chapter 144, Code of 1930.
If, in order to avoid the requirement of Section 1, subd. 8 of Chapter 251, Laws of 1940, requiring that county-wide levies made for any general or special purpose shall be separately stated, it is to be contended that the 3-mill tax levy "for Food Stamp plan and Pauper Maintenance" was for one and the same purpose and need not therefore be separately stated, then it should be observed that the leasing, equipment, and furnishing of a building or other suitable quarters in which to establish, maintain, and operate a Food Stamp Issuing Office, and to pay for the personnel or help for the maintenance and operation of the office and the stamp plan, has no substantial, if any, connection with maintaining a home on 160 acres of land for the poor of the county, and granting temporary relief to such others as are destitute, awaiting their removal to such home. Indeed, standing room would be at a premium on the premises of the home for the poor if the county should undertake to take care of all those who, as a matter of common knowledge, were permitted to participate in the Food Stamp Plan, if it is to do so in the manner contemplated by Chapter 144, Code of 1930, the only statutory authority which has been called to our attention under which a special tax levy can be made at all for pauper maintenance.
While other grounds are assigned and argued against upholding the tax levies here involved, we are of the opinion that, for the reasons already stated, the decision of the court below was correct in allowing the refund to the appellee in the sum of $2,236.11 collected on the 5-mill tax levy, but that the court was in error in disallowing the refund claimed by appellee in the sum of $1,341.66, collected under the 3-mill tax levy, for which appellee is prosecuting its cross-appeal, and that a judgment should be rendered here in behalf of the cross-appellant also for the refund of the amount last above mentioned.
Affirmed on direct appeal; reversed and judgment here for the cross-appellant on the cross-appeal.
Anderson, J., took no part in this decision.
Roberds, J., and Smith, C.J., are of opinion that the judgment of the lower court should be affirmed both on direct and cross-appeals.