Kaesser v. Becker

Appeal from a decree of the Cole County Circuit Court at the suit of a tax-paying citizen, enjoining the Secretary of State from submitting to a referendum vote of the people Senate Bill No. 433 passed by the Fifty-first General Assembly.

On July 7, 1921, Albert H. Hamel was given leave by the trial court to that end and filed therein his answer as an intervening defendant. As appears from its title Senate Bill No. 433 is "An Act to amend Article 1, Chapter 65, of the Revised Statutes of Missouri, 1919, pertaining to ``medicine, surgery and midwifery,' by repealing Section 7332 and enacting in lieu thereof two new sections pertaining to the same subject to be known as Section 7332 and Section 7332a," and popularly known as the Medical College Bill.

It is unnecessary to review even the substance of the pleadings. The sole question for our determination is the legal sufficiency of the referendum petitions filed from the Fourth Congressional District. Without the petitions from that district, it is admitted that the effort of the opponents of said legislative act to refer it to the people must fail. We quote from the statement in appellant's brief as follows:

"The controversy in this case is confined to the sufficiency of the referendum petition with reference to the number of legal petitioners from the Fourth Congressional District. The sheets filed from said district contained the names of 3544 petitioners, the minimum number required is 3513. On its face, the petition contains thirty-one petitioners over and above the number required.

"Of the number of petitioners from said Fourth Congressional District respondent claims nineteen, through inadvertence, signed the same twice. To this contention appellants accede. Respondent further contends that one person who signed said petition was under the age of twenty-one years. To this contention appellants accede. The remaining petitioners, 3524, or 11 over and above the required number, from said Fourth Congressional District, it is the contention of appellants, are legally qualified petitioners."

The Attorney-General was originally made a party defendant, but it developed that he had certified the ballot title to the Secretary of State prior to the institution of the suit and the case was dismissed as to him. Hon. N.G. Sevier was appointed as special master in chancery by the trial court and filed his report therein. In addition to the conceded facts that nineteen signatures to the petition in said Fourth Congressional District were duplicates and one signature was by a person under legal age, the master in chancery found that sixteen of the signatures on said petition were placed thereon by other persons "without the knowledge or authority, prior or subsequent, of the persons whose names they purport to be;" that thirteen other names appearing as signers "are names which were written on said petition without prior authority of the persons whose names they purport to be, the writing of which was subsequently ratified by said persons." He further found that the names of 235 other persons appearing on the petitions were not signed in the immediate presence of the person who made affidavit to the sheet or sheets of said petition on which said names appear; said master in chancery found that no fraud whatsoever was practiced by the Secretary of State in counting the names upon petitions presented to him and filed in his office, and that said Secretary of State had no means of knowing or ascertaining the legality of the signatures thereon. We have omitted certain findings of the master in chancery as to other names appearing on the petition, being few in number, which we think need not be discussed in this opinion. In due time appellants filed their exceptions to the report of the master in chancery, and thereafter the trial court found said exceptions to be without merit, and overruled the same and approved the report and finding of facts of the master in chancery, and entered judgment in favor of the plaintiff and against the defendant Secretary of State and the intervening defendant, and made permanent the temporary injunction theretofore granted restraining the Secretary of State, his attorneys, agents and employees from doing any act in furtherance of submitting said Senate Bill No. 433 to the people at the next general election. After unsuccessful motion for new trial, defendants have appealed.

I. The sole question before us is the correctness of the finding of facts made by the master in chancery and approved by the trial court. The contention is that such findings are not supported by the preponderance of theLegal evidence. The initiative-and-referendum amendment toPetitions. the Constitution of Missouri (Section 57, Article IV) provides that the referendum may be ordered upon legislative acts by the petitions of five per cent of the legal voters in each of at least two-thirds of the congressional districts in the State or by the legislative assembly itself. Appellants admit that sufficient petitions were not filed from five of the sixteen congressional districts, and respondent makes no contention that the petitions submitted from ten of the congressional districts of the State were not in every way sufficient. Legal and sufficient petitions from eleven congressional districts must be presented to and filed in the office of the Secretary of State within the prescribed time to authorize the submission of a legislative act to the referendum vote of the people. If, therefore, the petitions submitted from the Fourth Congressional District do not contain the requisite number of signatures of legal voters of said district, said referendum must fail.

The issues of fact are thus brought within a very narrow compass. It stands admitted that 3513 signatures of legal voters in said Fourth Congressional District is the minimum number of signatures required, and appellants do not claim that said petitions on their face contain more than 3544 signatures of legal voters, and they admit that twenty of these must be held to be illegal signatures, leaving the exceedingly small margin of eleven signatures, upon the legality of which depends the right to refer the act in question. If, therefore, the finding of the trial court should be fully sustained as to any one of the groups of signatures above referred to, the judgment below must be affirmed.

II. At page 622 of the abstract of the record there is printed as part of the record of the master in chancery a list of sixteen names which he reports were written on said petitions without the authority, prior or subsequent,Signatures of the persons whose signatures they purport to be,Written by to-wit: Mrs. J.T. Adkisson, H.L. Matthews, Mrs. Geo.Others. Sauer, Mrs. Marie Scott, W.D. Blackston, Florence Meek, Mrs. Frankie E. Barbee, Louise Weare, Patrick Buckley, Mike Birnbaum, Hannah Birnbaum, Bud Howard, Ressa Spiers, B.J. O'Malley, C.L. Gallagher, and C. Gallagher. To this list the testimony shows the name of George Meek, of Wallace precinct, Buchanan County, apparently should be added, as his testimony is as strong in denial of the genuineness of his signature as that of any of the others listed by the master in chancery. Respondent claims another signature was affixed by a person under legal voting age and should not be counted. The name is not given and we have not deemed it necessary to search the entire record to find it.

Of these seventeen names Mrs. Effie Hickerson secured the signatures of eight upon two different petitions. She testified generally that the signatures on the petitions were genuine, except in certain specified instances. She testified that H.L. Matthews signed the petition, but omitted to give his address, which she later supplied herself from the city directory without even being certain it was the same Matthews or that the name in the directory was Matthew or Matthews. Matthews denied signing the petition. He testified that he always signed his name "Matthews" and the petition has it "Matthew," omitting the final "s." He also testified that no other person of the same name lived at the address given.

Mrs. Hickerson testified that she signed the names of certain of her friends and relatives, including W.D. Blackston, Florence Meek, George Meek and Mrs. Frankie Barbee, in their presence and at their individual request. All of the persons named testified, not only that they did not sign their names to the petition, but firmly denied authorizing Mrs. Hickerson, to do it for them. All of the above four persons were acquaintances of long standing of Mrs. Hickerson, and Mrs. Barbee was a sister-in-law. No motive for their swearing falsely is shown, and it is hard to see how they could well be mistaken under the circumstances. As to the controversy over the last four names and H.L. Matthews, there is abundant testimony to support the finding of the master in chancery. There is no contention of mistaken identity.

Three other names secured by Mrs. Hickerson were C.L. Gallagher, C. Gallagher and B.J. O'Malley, C.L. Gallagher denied his purported signature and testified that he did not authorize any one else to sign his name. C. Gallagher, who is the father of C.L. Gallagher, testified likewise. B.J. O'Malley denied his purported signature or authority in any one to sign his name. All three of the above testified that there were no other persons of the same name at the addresses given. We have carefully examined Mrs. Hickerson's testimony, and have failed to find any specific reference whatever therein to the signatures of the three persons named.

The names of Louise Weare and Ressa Spiers appear on petition 19 at lines 31 and 27 respectively (as is shown from the testimony). One John G. Bauenlein circulated this petition after twenty-eight or thirty names were already written on it, and he made the statutory affidavit thereto covering all the names thereon. Both of the above women denied their purported signatures and testified that no one had authority to sign their names. Ressa Spiers said she signed her name "Ressie" and not "Ressa" as it appears on the petition, while Louise Weare testified that there were no other persons in St. Joseph who spelled the name with the final "e" as she did. Both testified that no other persons of the same names were living at the addresses given. Bauenlein did not testify specifically as to the genuineness of these signatures or that the names were signed by authority of said persons. Appellants have not pointed out any testimony in the record to this effect. It is not even shown that these signatures were secured by Bauenlein.

Mrs. Marie Scott, 408 South Fifth Street, St. Joseph, denied that any petition was signed by her and denied the genuiness of her purported signature. E.F. McNamara testified that he circulated the petition and that Mrs. Scott's name was signed by her husband. Appellants have not directed our attention to proof in the record of the authority in the husband to sign Mrs. Scott's name and we have found none.

The master in chancery held that the purported signatures of Mike Birnbaum and his wife Hannah Birnbaum could not be counted. The addresses of both were given at the location of their shop, instead of their residence. Both stoutly denied signing the petition. They were Russians and neither could read English. They had given no one authority to sign their names and no petition had even been presented to either of them. The name of George J. Wallace, Jr., is mentioned in the testimony as being the circulator of this petition. Wallace was not introduced as a witness and appellants have pointed out no testimony in the record tending to contradict Birnbaum and his wife, and we have found none, except the prima-facie proof furnished by the circulator's affidavit.

The master in chancery held that the purported signature of Mrs. J.T. Adkisson could not be counted. She testified as a witness and denied the genuineness of the signature. No other person of the same name lived at the given address and no other family spelling the name "Adkisson" lived in St. Joseph. Her name appeared on sheet 18, which J.R. McGarry circulated. He testified that Mrs. Adkisson's name was signed by her husband while she was not present. It is not shown that her husband was authorized to sign her name.

Mrs. Geo. Sauer denied signing her name or the authority of any one to sign it for her. The same J.R. McGarry testified that he circulated the petition upon which her name appears, and that her son Peter Sauer signed her name when she was present and about twenty feet away. He did not testify that she was aware that her son was signing her name or that she authorized him to do it for her. Peter Sauer did not testify.

The name of Pat Buckley appeared on petition 23 at line 18. His sister Mary Buckley testified that she signed his name when he was not present and without his authority, and that she had never even told him that she had signed his name. She testified that she had signed other petitions with his name and had told him about having signed the same and that he had never made any objection. Nellie Nolan circulated this petition and she testified that Pat Buckley was away at work at the time Mary Buckley signed his name for him. Neither Miss Nolan nor any other witness testified to any authority on the part of Mary Buckley to sign her brother's name. Pat Buckley did not testify.

The name of Bud Howard, a negro porter, appeared on one of the petitions as a signer. As a witness he finally denied his signature, after apparently being confused on account of his signature to an affidavit he had made. J.R. McGarry testified that he had procured this signature and that Howard's name had been signed by J.H. Wilson, the proprietor of the saloon where Howard worked and that Howard was present and authorized the signature by Wilson. Wilson did not testify. There is some doubt in our minds concerning the correctness of the finding of the master in chancery as to this signature, because of the positive testimony of McGarry and the evident uncertainty and confusion in the testimony of Howard.

It appears from the foregoing review of the testimony, which we have very carefully studied, that the names of at least sixteen persons were signed to the various petitions by persons other than those whose names appear thereon without the authority of such persons.

An analysis of the testimony of the circulators of petitions concerning the foregoing names shows the following:

In only one case, H.L. Matthews, did the circulator claim that the signature was actually affixed by the person named. In four instances the signatures were claimed to have been affixed by the circulator in the presence and at the request of the alleged signers, to-wit: W.D. Blackston, Florence Meek, George Meek and Mrs. Frankie Barbee. In one instance, Mrs. George Sauer, the alleged signer, was twenty feet away when her son signed her name, and there is no showing that she authorized her name to be signed, or even knew it was being signed. In the case of seven signatures (C.L. Gallagher, C. Gallagher, B.J. O'Malley, Louise Weare, Ressa Spiers, Mike Birnbaum and Hannah Birnbaum) the circulator did not testify concerning the genuineness of the particular signatures or that they were signed by any authority whatever. There is no testimony in the record which could apply to the signatures, except such as is of a most general nature relating to the correctness of the lists and the genuineness of the signatures as a whole. This sort of testimony is of little more probative value than the affidavit itself, since such testimony is to be expected in support of an affidavit already made. As to three signatures (Mrs. Marie Scott, Mrs. J.D. Adkisson and Pat Buckley) the circulator admitted that the names were signed by others in the absence of the persons whose names were signed.

Recapitulating, the circulators do not, by specific and definite testimony, claim actual signatures or direct authority for signatures in more than five instances. In eleven cases there is no specific showing of express authority. In the case of the four names which Mrs. Hickerson claims she signed in the presence and at the request of the persons whose names she signed, the master in chancery had abundance of evidence to support his finding in the positive denial of the alleged signers and the surrounding facts. The fact that Mrs. Hickerson wrote letter to some of these persons telling them she had signed their names tends to destroy her claim of prior authority. She did not deny writing these letters.

The testimony of Mrs. Hickerson relative to the signature of H.L. Matthew is very unsatisfactory. If the person whose name appears was H.L. Matthews, then we have his positive denial, without any certainty in her testimony as to his identity. If, perchance, the name "H.L. Matthew" signed was that of another person, then we do not know where such other person lived. Mrs. Hickerson was not sure the name in the directory was Matthew or Matthews. She evidently took the address of Matthews, the witness who testified. Manifestly, the preponderance of the testimony is against the validity of the signature.

III. Each petition, purporting to be signed by legal voters with addresses of the signers and supported by the statutory affidavit of the circulator thereof and filed in the office of the Secretary of State, is prima-facie proof of thePrima-Facie genuineness of such signatures, that the personsCase. whose signatures appear thereon live at the addresses given and that such persons are legal voters. [Sec. 5907, R.S. 1919; State ex rel. v. Carter, 257 Mo. l.c. 78.] Such prima-facie character of such petitions continues in the suit to enjoin the Secretary of State from submitting the act to a referendum, until it is overcome by the proof. Prima-facie literally means at first view. In Smith v. Burrus, 106 Mo. l.c. 100, it is defined as "such evidence as in the judgment of law is sufficient to establish the fact, and if not rebutted remains sufficient for the purpose." It is such proof as puts one contending against the truth of such prima-facie showing to his own contrary proof and, in the absence of such contrary proof, is sufficient to establish the fact finally. We quote from Gilpin v. Railway Co., 197 Mo. l.c. 325, as follows:

"What is a prima-facie case? The following answers have been given to that question: ``A prima-facie case is one which is established by sufficient evidence, and can be overthrown only by rebutting evidence adduced on the other side.' [2 Abbott's Law Dic. 312.] ``A prima-facie case is that which is received or continues until the contrary is shown.' [22 Am. Eng. Ency. Law (2 Ed.) p. 1294.] Prima-facie evidence. ``It is such as, in judgment of law, is sufficient to establish the fact; and, if not rebutted, remains sufficient for the purpose.' [Kelly v. Jackson, 6 Peters, 632.)"

The law presumes right conduct rather than otherwise. It presumes that men will not deliberately commit criminal acts. Applying such presumption concretely, when the circulator of a referendum petition makes the statutory affidavit thereto, the law accepts as true the statements made therein until the contrary is shown. This means that the genuineness of the signatures and the correctness of the addresses given and that the signers are legal voters are sufficiently shown by such affidavit to require the Secretary of State to accept and file the petition and that when any of the facts stated in such affidavit are questioned in court proceedings, those questioning the truth of such statements must produce testimony to overcome such prima-facie case. When such proof is offered, it is the duty of the trier of the facts to determine the fact from all the proof and such fact must be determined like any other issue of fact in a civil case, from a fair preponderance of the evidence.

While this case is one in equity, wherein it is our duty to review the evidence and make our own findings of fact, we naturally and properly defer largely to the judgment of the master in chancery, especially where, as here, theDeference trial court has approved such finding. The master into Master. chancery saw and heard the witnesses. He could observe their manner while testifying, their confidence and readiness or otherwise and their apparent interest or want of interest. This point of view is denied us on appeal, We must content ourselves solely with the printed record, stripped of all acts, conduct and facial expressions of the witnesses not susceptible of being reduced to writing. Such acts and conduct persuasively and naturally create belief or disbelief of the testimony in the mind of the trier of the facts who sees and hears the witnesses. They add to or detract from the spoken words. He thus possesses a tremendous advantage in reaching a just conclusion of which we are utterly deprived in studying the cold record.

IV. Appellants contend that because the Secretary of State has authority to make some determination concerning the sufficiency of referendum petitions for the purpose of ascertaining whether they are entitled to be accepted and filed in hisAcceptance of office, his decision is final in the absence ofSecretary of fraud. We do not so understand the provisions ofState: Absence Section 5909. That section plainly provides thatof Fraud. if the Secretary of State wrongfully refuses to file petitions, he may be compelled to do so by mandamus. He may have concluded the petitions were invalid or insufficient. The statute provides the remedy for error on his part. Surely in the light of said Section 5909, if the Secretary of State had held, as did the master in chancery and the trial court, that the petitions were insufficient and those seeking to refer the act had moved against him by mandamus, we would hold that his ruling was not final. The Secretary of State cannot be enjoined from certifying petitions which are legally insufficient until after such petitions have been accepted and filed by him. [State ex rel. Westhues v. Sullivan, 283 Mo. 546, l.c. 573.] The section referred to clearly implies the right to challenge the insufficiency for any legal reason after the Secretary of Statehas approved and filed the petitions. There may be fraud in the procurement of signatures apparently legally sufficient and petitions may be found to be legally insufficient which have been signed in the exercise of the utmost good faith and without even suspicion of fraud.

Section 5909, among other things, provides that "on showing that any petition filed" (which necessarily implies that the Secretary of State has then passed on the sufficiency of such petition, so far as he is authorized to approve it) "is not legally sufficient, the court may enjoin the Secretary of State and all other officers from certifying or printing on the official ballot for the ensuing election the ballot title and numbers of such measure." That the preliminary approval of the Secretary of State is in no sense final and the courts are not bound by his decision could hardly be expressed in clearer language. We have examined the cases from other states cited by appellants. They are either not in point or are based on statutes different from Section 5909. As said in the case of State ex rel. v. Carter, 257 Mo. l.c. 78, it is the duty of the Secretary of State to accept and file petitions which are on their face legal and sufficient.

"If he refuse to file such petition he may be compelled by mandamus to do so. [Section 6750.] In such mandamus suit the legality of the signers in all respects, the number of the signers, their residences, the genuineness of their signatures and other conditions precedent to legality may be fully threshed out as cold questions of law, upon the proof made on the trial as in any other mandamus suit. If on the other hand the Secretary of State filed a referendum petition which is insufficient by reason of a lack of legal signers, or for lack of enough congressional districts represented, or by reason of forgery or other fraud, he may be enjoined from further action, and thereupon the whole matter of insufficiency from the lack of any requirement of statute or of Constitution, may be judicially examined, determined and adjudged."

The Carter Case was a decision by Court in Banc in which all the judges concurred. We overrule this contention of the appellants.

V. Our conclusion is that the preponderance of the evidence supports the finding of the master in chancery. His finding must be approved as to all of the fifteen names covered by his report and the name of George Meek must also be added to the list, making sixteen names in all which clearly cannot be counted in determining the sufficiency of the petitions from the Fourth Congressional District. Such conclusion necessarily compels us to affirm the judgment below. These sixteenDuplications: signatures, with nineteen admitted duplicates andMinor. one by a person below the legal voting age, make thirty-six alleged signatures which cannot be counted. This leaves said district with only 3508 legal signatures on the petitions filed, or five less than the number 3513 admitted to be the minimum number required, without any consideration whatever of other signatures attacked. These we will proceed to consider briefly.

VI. What we have already said effectually disposes of the case, but there are other points raised by respondent against the sufficiency of the petitions which we feel constrained to discuss somewhat. They are in the case and squarely before us and are such questions as should be settled. We will not lengthen this opinion in the discussion of questions which we regard as of little importance or such as are not likely to be presented in other cases.

The master in chancery found that thirteen of the signatures to petitions in said Fourth Congressional District were placed on said petitions by other persons without previous authority of the persons whose names were signed thereto. HeRatification. reported: "All of these thirteen persons ``ratified' the signatures by not objecting to the same when their attention was called to it," etc. A single instance will suffice. We will take the first name on the list appearing in respondent's brief, Thomas Cox. Mrs. Hickerson, circulator, testified that no objection had been made to her because his wife signed his name. Etta Cox, his wife, testified that she signed the name of her husband in his absence and without his prior knowledge or authority; that she told him three or four days later that she had signed his name and he made no objection and said it was all right.

Names signed to referendum petitions under such circumstances comply neither with the letter nor the spirit of the initiative-and-referendum amendment of the Constitution or the statutes enacted in aid thereof. We do not mean to be understood as deciding that under no circumstances may signatures be attached to such petitions by others than the purported signer. In the determination of that question the effect of Section 5914 making it a criminal offense for any person to sign any name other than his own will necessarily need to be considered carefully. We do hold that names placed on petitions under the circumstances appearing in the case of Thomas Cox are not entitled to be counted on a petition. To count names signed without authority of the purported signer is to open wide the doors of fraud to opponents of legislative enactments. This would provide a means of extending the time limit for filing petitions as names could be signed at the last moment and ratification secured afterwards. To sanction such a thing is to encourage the unscrupulous petition circulator (at ten cents a name, perhaps) to write or have written on his petition the names of people whom he either has not had time to see or is too lazy to see. He might depend upon their friendship toward himself to secure their consent later, or at least to insure that they will not protest or make complaint which will result in his criminal prosecution. No cases need be cited nor elaborate reasons given in support of this conclusion. Any man with normal imagination can speculate as well as we upon the length to which a contrary conclusion would permit unscrupulous opponents of legislative acts to go. The extent of the names on the poll books and the deterring fear of the penitentiary would be the only limits upon their possible activities. We have no hesitation in holding that the signature of Thomas Cox and those in like case cannot be counted.

VII. The master in chancery reported a number of instances where the affidavits to petitions were made by persons other than those who secured the signatures and in whose presence the petitions were signed. It is not necessary toAffidavit. illustrate from the record, for we understand there is no dispute about the fact, although there may be some disagreement concerning the number of signatures affected by such affidavits.

Section 5908, Revised Statutes 1919, is as follows:

"Each and every sheet of every such petition containing signatures shall be verified in substantially the following form by the person who circulated said sheet of said petition, by his or her affidavit thereon and as part thereof:

"State of Missouri, | ss. County of ____. |

"I, ____, being first duly sworn, say (here shall be legibly written or typewritten the name of the signers of the sheet), signed this sheet of the foregoing petition, and each of them signed his name thereto in my presence; I believe that each has stated his name, postoffice address and residence correctly, and that each signer is a legal voter of the State of Missouri and County of ____,

"(Signatures and postoffice address of affiant).

"Subscribed and sworn to before me this ____ day of ____, A.D., 19__.

"(Signature and title of officer before whom oath is made and his postoffice address).

"The forms herein given are not mandatory, and if substantially followed in any petition it shall be sufficient, disregarding clerical and merely technical errors."

Said section requires each sheet of every petition to be verified by the person who circulated it by his or her affidavit. The form suggested in said section includes the statements that each of the persons signed the petition in the presence of the affiant, etc. When such affidavit is made in substance, prima-facie proof is made of the facts stated therein. Proof that the affidavit is false in its statement in any particular destroys the prima-facie character of the affidavit in that respect. The affidavit should contain in substance the facts set out in the form suggested in said Section 5908, and the fact that the signature was made in the presence of affiant is one of the substantial facts to be included in the affidavit to make such verified petition prima-facie proof of the sufficiency thereof. Such defects are not merely clerical or technical errors. They are matters of substantial importance. It reasonably follows that, if such petition is challenged when offered in court and it develops under the proof that the affidavit is false in material allegation or any material fact is not therein stated, those asserting the sufficiency of such petition should furnish proofaliunde of the necessary facts, such as the testimony of the circulator, for example. It then becomes a question of fact, independent of the affidavit, as to the genuineness of the signatures in question. If the proof shows the signers are legal voters within the district covered by the petition and their purported signatures are genuine, they may be counted; otherwise not. Discussion of the facts shown by the proof in this case is entirely unnecessary, since whatever the facts may be, they will not affect the result we have reached.

VIII. We are not here concerned with the merits of the legislative act sought to be referred. But, when a solemn legislative act is sought to be set aside, it is our duty to see that the constitutional and statutory requirements haveWisdom been substantially met by those seeking to refer theof Act. act. The referendum is a safeguard against legislation which is deemed unwise and the law must not be so construed as to destroy its effectiveness. On the other hand, full observance of substantial requirements must be exacted lest the referendum be made the instrument of injustice or oppression by a militant and well organized opposition, much less in numbers than the required five per cent of the legal voters in two-thirds of the congressional districts.

IX. We have carefully examined the record covering the evidence affecting the validity of signatures sufficient to determine the issue of fact adversely to the contention of appellants. In our opinion, the preponderance of the testimony establishes the fact that at least sixteen signatures cannot be counted for the referendum, in addition to the twenty which concededly cannot be so counted. The determination of this issue makes unnecessary any detailed examination of the record touching other issues of fact. Such determination necessarily results in the affirmance of the judgment of the trial court and such is our order. James T.Blair, C.J., and Graves, Higbee, and Elder, JJ., concur.