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[Cases in which rehearings have been denied, without the rendition of a written opinion, since the publication of the original op nions in 22, 24 and 25 S. W. This list does not include cases where an opinion has been filed on the denial of the rehearing.]

Berry v. Missouri Pac. R. Co. (Mo.) 25 S. W. 229.

Brown v. Keye (Tex. Civ. App.) 25 S. W. 988.

Dawson v. McLeary (Tex. Civ. App.) 25 S. W.
705.

Fugler v. Bothe (Mo.) 22 S. W. 1113.
Goetz v. Flanders (Mo.) 22 S. W. 945.

Houston & T. C. R. Co. v. Shirley (Tex. Civ.
App.) 24 S. W. 809.

Lyle v. Horstman (Tex. Civ. App.) 25 S. W.
802.

Michelson v. White (Tex. Civ. App.) 25 S. W.
S01.

Reynolds v. Weinman (Tex. Civ. App.) 25 S. W. 33.

See End of Index for Tables of Southwestern Cases in State Reports.

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THE

SOUTHWESTERN REPORTER.

VOLUME 27.

DOOLIN et al. v. COMMONWEALTH. (Court of Appeals of Kentucky. June 16, 1894.) HOMICIDE-DYING DECLARATIONS.

Deceased had been told by the physician that there was no hope for him, and his dying declaration, which was reduced to writing, read, "Believing myself to be now on my deathbed," etc. Held, that it was admissible in evidence, as it sufficiently expressed his belief of "impending dissolution."

Appeal from circuit court, Pulaski county. "Not to be officially reported."

W. R. Doolin and George Cope were convicted of manslaughter, and appeal. Affirmed.

W. O. Bradley, for appellants. W. J. Hendrick, for the Commonwealth.

BENNETT, C. J. The appellants were convicted of the crime of manslaughter, for killing W. S. Watson. It seems that Doolin was a constable, and tried to arrest Watson for a misdemeanor, and summoned Cope to help him; that Watson ran, and, in the pursuit, Doolin shot him, from the effect of which the jury found that Watson died. The jury also found Cope guilty, as aider and abettor. The material facts of this case will be found in 23 S. W. 663, the case having been tried once before. Doolin claims that he shot Watson in self-defense. He does not

claim that he had the right to shoot him to prevent his escape. Upon the trial of the case the court permitted the dying declaration of Watson to go to the jury. The declaration, as written, reads, "Believing myself to be now on my deathbed," etc. It is contended that this is but the expression of an opinion, etc., and is not certain enough to make it a dying declaration. But it seems to us that it does express the belief of "impending dissolution," for it means that the deceased was then in bed, wounded, and that he believed he would die upon that bed, of that wound. Besides, he had, not long before, been told by his doctors that there was no hope for him. The declaration was properly allowed to go to the jury. The court gave the jury eight instructions, which covered the whole law of the case. The appellants objected to the fourth instruction only. We think that instruction is correct. The v.27s.w.no.1-1

refused instructions were properly refused. The evidence authorized the verdict. We see no error in the record. The judgment is affirmed.

CITY COUNCIL OF RICHMOND ▾.
POWELL.

(Court of Appeals of Kentucky. June 14, 1894.) CONSTITUTIONAL LAW-LIMITATION OF INDEBTEDNESS OF MUNICIPALITIES.

Const. § 157, restricts the rate of taxation for cities and towns of less than 10,000 population to 75 cents on the $100, and provides that no city, town, or municipality shall be come indebted "in any manner, or for any purpose," to an amount exceeding, in any year, the income and revenue of such year, without the assent of two-thirds the voters thereof, voting at an election to be held for that purpose. Held, that such provisions apply to an indebtedness for school purposes as well as strictly municipal purposes.

Appeal from circuit court, Madison county. "Not to be officially reported."

Action by C. S. Powell against the city council of Richmond. From a judgment for plaintiff, defendant appeals. Affirmed.

P. H. Sullivan and C. H. Breck, for appellant. C. S. Powell, in pro. per.

PRYOR, J. The board of education of the city of Richmond and the city council leased a lot of ground for the purpose of erecting a public school building upon it at a cost of about $22,000. The mode of payment contemplated is in city bonds, payable in 20 years, but redeemable in 5 years; the interest to be paid annually, and a tax of 13 cents levied for that purpose, and to create a sinking fund with which to pay the principal. The proceeding on the part of the board of education and the council is authorized by an act of the general assembly for the government of cities and towns of the fourth class, found in Acts 1891-92 and 1893. The levy for any one year for maintaining schools, constructing buildings, etc., is limited, or cannot exceed 50 cents on each $100 of value of taxable property, etc. After the ground had been leased, and a contract entered into for the erection of the building, the appellee, a taxpayer, is insisting that no such debt can

be created by the council without a submission of the question to the popular vote, as required by section 157 of the constitution, and the court below so held, in which conclusion we concur. That section provides that "the tax rate of cities, towns, counties, taxing districts and other municipalities, shall not at any time exceed the following rates;" restricting the burden to be imposed for towns and cities having less than 10,000 population to 75 cents on the $100, with this further provision: "No county, city, town, taxing district, or other municipality, shall be authorized or permitted to become indebted, in any manner, or for any purpose to an amount exceeding, in any year, the income and revenue provided for such year, without the assent of two thirds of the voters thereof, voting at an election to be held for that purpose, and any indebtedness contracted in violation of this section shall be void-nor shall such contract be enforceable by the person with whom made, nor shall such municipality ever be authorized to assume the same."

The contention by the appellant is that this section of the constitution applies alone to an indebtedness for strictly municipal purposes, and the qualification "for other than school purposes" left the matter of taxation alone to the legislature when the means to be raised are to be applied solely to the purposes of education under our common-school system. If this construction is given the constitution, then we find unlimited power in the legislature on this subject, and the city council, when for school purposes, may be vested with the power to impose any burden by way of taxation or indebtedness that in its discretion may be deemed necessary for maintaining schools and erecting buildings for that purpose. While it is made the duty

of the board of education and the council to provide suitable school buildings, they must regard the constitutional limit placed upon their action in creating a municipal indebtedness for that purpose, and the section of the constitution quoted in express terms prohibits the creation of a municipal indebtedness, "in any manner or for any purpose, to an amount exceeding in any year the income and revenue provided for such year, without first obtaining the consent of two-thirds of the voters of the municipality." The qualification, "other than for school purposes," was inserted to leave that question to legislative control, but when the city council proposes, in any manner or for any purpose, to create an indebtedness exceeding the income or revenue for the year, the wish of the voters must be consulted, and their assent obtained, before the obligation is created. Schools must be maintained and school buildings erected, and it is the duty of those authorized by law to see that the provisions of the school law in this respect are carried out; and to first require the assent of the voter is one of the means required to enable those to whom this duty

is confided to maintain schools when the indebtedness about to be created exceeds the sum the council would have the right to appropriate without regard to the voice of the people.

Nor does the fact that the interest on this indebtedness, and the amount going to the sinking fund for the liquidation of the principal, are within the income or revenue for each year affect the question. It is an indebtedness assumed, although payable in installments, that exceeds the income, and is prohibited in express terms by the constitution. If an indebtedness can be created for $22,000, payable in 20 years, an indebtedness for $500,000 would be justified if the provision of the constitution is construed as contended for by appellant. The very purposes of the constitution would be disregarded with such a construction, and heavy burdens placed upon the property within the municipalities, that caused much complaint prior to the adoption of the present constitution, and to remove which mischief the section in question was adopted. The judgment below is affirmed. Beard v. City of Hopkinsville, 24 S. W. 872.

ST. LOUIS, I., M. & S. RY. CO. v.
B'SHEARS.

(Supreme Court of Arkansas. June 9, 1894.) RAILROAD COMPANIES STOPPAGE OF TRAINS AT

TOWN-MANDAMUS.

Under Mansf. Dig. §§ 5501, 5502, which provide that before a town can compel the stoppage of trains within its corporate limits, as provided by section 5500, the authorities shall tender the company the reasonable expenses of grading a switch or sidetrack at such place, and that mandamus may issue at the suit of any citizen of the town to compel the company to stop its trains as provided by section 5500, such tender must be made before mandamus will lie, though the company has already constructed all the switches and sidetracks necessary for the stopping of trains. Battle and Wood, JJ., dissenting.

Appeal from circuit court, Hempstead county; Rufus D. Hearn, Judge.

Petition by H. L. B'Shears for mandamus to compel the St. Louis, Iron Mountain & Southern Railway Company to stop a fast train, known as the "Cannon Ball," at the incorporated town of Fulton, of which petitioner was a citizen. Mandamus was granted, and defendant appeals. Reversed, and petition dismissed.

Dodge & Johnson, for appellant. Scott & Jones, for appellee.

Statement.

HUGHES, J. This is an appeal from a judgment of the circuit court of Hempstead county, granting a mandamus to compel the appellant to stop its fast train known as the "Cannon Ball" at the incorporated town of Fulton, upon the line of the road in said county. The petition states that petitioner was the mayor of Fulton, an incorporated

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