author: McClure, J. MoClüRE, J. GRE&g, J., ITariusoN, J.,

text:
    Howard et al. v. McDiarmid.

      Mandamus — When will lie. — It is a general rule tliat wliere a person lias a legal right to insist that a certain act shall he done, the performance of which is, by law, made the duty of a public officer, mandamus will lie.
    Ejection Returns — Duty of County Clerk. — It is the duty of the county clerk to make out and return to the office of secretary of State, an abstract, of the whole number of votes cast at an election, according to the returns on file, in the clerk’s office, for each candidate.
    The clerk cannot decide the legality, nor can he question the validity of the appointment of judges.
    Regularity is to be presumed in favor of the returns of elections by judges appointed in the manner proscribed by law, and if there bo a question respecting the regularity, the clerk has no authority to decide it.
    Senatorial and Representative Districts. — The provisions of the Constitution, regulating the apportionment of Representative and Senatorial districts, does not inhibit the Legislature from passing an act, changing county boundaries.

      Petition for Mandamus.

      Ga? land ft Nash, English, Gantt ft English, Watkins ft Hose and Warwick, for petitioners.

      Rice ft Benjamin, Yonley, Gantt and Montgomery, for respondent.
   McClure, J.

The plaintiffs filed their petition, praying for a mandamus, against McDiarmid, the county clerk of Pulaski county, to ■compel him to certify certain election returns, to the secretary of State.

The petition, in substance, recites that the petitioners .were candidates for election to the House of Representatives, and that an election was held in said county, for that purpose, on the eighth of November, 1870 ; that the hoard of registration, immediately before said election, appointed judges of election, In the manner prescribed by law ; that a copy of the appointments, thus made, was filed in the office of the county clerk of said county, and became a record -in that office; that in the townships of Ashley, Eastman, Campbell, Gray and Tladgett, armed mobs seized and usurped the places, designated as voting places, and prevented the judges, regularly appointed, from holding the election, and appointed others in their stead, and held a pretended election, the returns of which were forwarded to said McDiarmid ; that in the township of Eagle, and the first and third wards of the city of Little Rock, the judges appointed as aforesaid, by the board of registration, held an election and duly certified the returns of the same to said IMeDiar-mid, county clerk, who has utterly disregarded his duty and refuses to certify the same to the secretary of State, as by law he is required to do.

The relief asked for, is that this writ, by mandamus, compel the said McDiarmid, county clerk, etc., to certify to the secretary of State, abstracts and statements of the votes, cast at said election, for representatives to the House of Representatives of the General Assembly, from the township of Eagle and the first and third wards of the city of Little Rock, by the judges of election constituted and appointed by the board of registration as aforesaid, as well as other returns, or pretended returns, of such election presented to him, or on file in his office.

McDiarmid filed a response to the petition, in which he declares that he, before the filing of the petition, did make out abstracts and statements of the votes cast at said election to the House of Representatives, etc., held on the 8th day of November, from the township of Eagle, and the first and third wards of the city of Little Rock, held by the persons appointed judges of election by the board of registration, to the secretary of the State of Arkansas, and that before the filing of the petition against him, he had made abstracts and statements of all returns, or pretended returns, of such election, presented to or filed in his office, and returned and certified the same to the secretary of State, and asks that he may be dismissed.

Thereupon the plaintiffs filed a supplemental petition, wherein it is set up that said McDiarmid, in the pretended returns made by him, as charged iri his answer, did not in any manner comply with the law, but on the contrary violated the same in many respects.

First. That said returns, so made by said McDiarmid to the secretary of State, show that in the first and third wards of the city of Little Rock, and in the township of Eagle, in said county, there Avere double elections, or elections by two sets of judges, or persons claiming to be judges, and that said returns fail to show which AAmre the regular and legal ^elections in said AAmrds and township, etc.

Second. That said returns make no showing at all as to the persons claiming to have held elections being the regular and legal judges, when said clerk kneAv who, in fact, were such legal and regular judges, and this was and is an important matter t o be placed before the secretary of State, etc.

Thh d. That said returns inform the secretary of State that the townships of Caroline, Clear Lake, Rich woods and Prairie are, and were at the time of the election aforesaid, a portion of the tAvelfth Senatorial and Representative district, and not a portion of the tenth district, and thei’efore failed to show that the elections held in said townships were estimated and counted in the elections of said tenth district; wheD, in fact, the elections held in said townships should be counted and estimated in the returns of the said tenth district.

Fourth. That if said McDiarmid will make out and certify the returns of such election as he should do, and in conformity Avith the specifications contained in said original petition, and this amendment, and in accordance Avitli the law, that it will furnish the petitioners with the means of securing the places to which they have been legally elected, without which they Avill be deprived of their places as aforesaid, and the secretary of State Avill not be able to issue certificates of election to the proper persons.

The amended petition concludes Avith a prayer, asking that ‘‘the said McDiarmid be ordered and directed to make out and certify said election returns as hereinbefore indicated, and that, to that end, a writ of mandamus issue from¿this court, etc.

To the amended petition, McDiarmid filed a response to the original and amended petition, and says that the same is not sufficient in law, and he demurs to the same:' First Because the court has no jurisdiction to hear and determine the matters therein complained of and set forth. Second. Because the petition does not set forth facts sufficient to entitle petitioners to the relief asked, or to any other relief.

The demurrer raises no question as to the jurisdiction of this court in cases of mandamus generall}1", but that, in this particular case, it has no jurisdiction. If this be true, the application for mandamus will be dismissed. It is laid down as a general rule, by all text writers, that mandamus will lie “where a person has a legal right to insist that a certain act shall be done, the performance of which is, by law, made the duty of a public officer.” Moses on Mandamus, 16.

The first question to determine is, whether the petitioners “have a legal right to insist” that the election returns shall be certified to the secretary of State.

The second question is, whether that act, insisted on, is one, the performance of which is required by law.”

And the third is, whether McDiarmid is a “public officer.”

We will take up the propositions in just the reverse order of their statement. We will assume that the county clerk is a “public officer,” and this assumption disposes of any argument on the third point, and turn our attention to the second proposition, which is, “Is it the duty of the clerk to make out and certify to the secretary of State, an abstract of the votes cast, for candidates voted for, at the general election, in November last, for members of the House of Representatives of the General Assembly of. the State of Arkansas?” The answer to this question must be determined by the provisions of the law alone.

Section 39 of the election law says: “On the fifth day after the election, if all the returns have been received, the clerk of the county court shall proceed to open and compare the several election returns which have been made to his office, and make abstracts of the votes given for the several candidates for each office, on separate sheets of paper; and such abstracts, being-signed by the clerk, shall be deposited in the office of the clerk of the county court, there to remain.” This section requires an abstract to be made out.

' The 42d section of the same act says: “Each clerk of the county court shall; within two days after the comparison and examination of the returns of any election, deposit in the nearest post office, on the most direct route to the seat of government, certified copies of the abstracts, filed in his office, of the returns of the election of all executive, judicial and legislative officers,” etc.

These sections clearly make it the duty of the county clerk to make out and return to the office of the secretary of State certified copies of the returns of the election of all executive., judicial and legislative officers, and from this it may be inferred that it is a duty “enjoined by law.”

This, now, bi’ings us back to the first proposition, and that is, have the petitioners a “legal right,” to insist that these returns shall be certified to the secretary of State?

As an evidence of their right to have this done, the petitioners aver that they were candidates for election as members-of the House of Representatives of the General Assembly of • the -State of Arkansas, and that, if a proper return is made by the clerk of the county of Pulaski, it will appear to the secretary of State that they are entitled to seats in the House of Representatives.

The 34th section of the election law says: “It shall be the. duty of the secretary of State, on the first day of each regular session of the General Assembly, to lay before each house a list of the members elected, agreeable to the returns in his office.”

It seems to us that these facts, undonied as they are, give the petitioners a “legal right,” to insist that the clerk shall forward proper returns to the office of the secretary of State.

These things having been determined, it follows that this court has jurisdiction “to hear and determine the matters complained of.”

.The counsel for the respondent urge that the determination of these facts is an interference with the legislative branch of the government, who are alone authorized to determine the election returns and qualification of its own members.

We are determining no such thing. ¥e are simply determining that the petitioners have made such a showing of a “legal right,” as would authorize them to come into this court and ask it to compel the clerk of the Pulaski county court to send up proper returns to the secretary of State. If the Legislature had no power to go behind the list of members furnished by the secretary of State to each house, it might with some propriety bo asserted that this court would be determining the election of members of the General. Assembly; but in this proceeding this court does not, nor is it asked to, say who are members of the House of Representatives, or who are not.

If the proper returns in the office of the clerk of the county show that the petitioners are elected, they have a right to-have the returns forwarded to the secretary of State, that shows such fact to exist, no matter whether it may be true in point of fact or not.

There is a vast difference between saying that returns showing an election of certain persons shall be forwarded to the secretary of State, and saying that such persons are elected.

We will now turn to the second cause of demurrer, which is, that “the petition does not set forth facts sufficient to entitle the petitioners to the relief asked, or any other relief.”

The relief asked, to bring it down to a single proposition, is to compel McDiarmid to send an abstract to the secretary of State, showing the vote cast for the different candidates as members to the House of Representatives of the General As■sembly, in the different townships and wards within, the county of Pulaski.

The response of McDiarmid says he has done this.

The petitioners file a supplemental answer, in which they say that it is true he has forwarded a return of all the votes» oast in said county for members of the General Assembly, but that the return of the votes cast in the townships of Caroline, Clear Lake, Prairie and Richwoods, are certified as “votes cast for representatives in the lower house of the Arkansas State Legislature, in the territory belonging to the county of Prairie, in the twelfth district,” instead of votes cast in the territory of Pulaski county, in the tenth district.

They further state that in the township of Eagle, and in the first and second wai’ds of the city of Little Rock, in said •county, the returns filed in the secretary of State’s office, by the said county clerk, show that two elections were held on the same day within said township of Eagle, and said first and third wards of the city of Little Rock; and that instead of certifying the election returns of the election held by the judges of election appointed by the board of registration, that said McDiarmid has also forwarded the returns of other pretended elections, held in said township, and that by reason of doing so, the secretary of State is unable to tell who was elected according to the returns.

The demurrer of the respondent admits these things to be true, and this brings us to consider what was the duty of the clerk, under the law, in making out the returns.

It appears that double elections were not held in any of the townships of the county, save Eagle, and that double elections were only held in the first and third wards in the city of Little Rock. Under such circumstances, what was the duty of the clerk?

The 39th section of the election law is, “that on the fifth day after the election, if all the returns have been received, the county clerk shall proceed to open and compare the several election returns which, have been made to his office, and make abstracts of the votes given for the several candidates,” etc.

As to all the other townships, save Caroline, Richwoods, Clear Lake, Prairie and Eagle, and the first and third wards of the city of Little Rock, his duty was clear and plain; for it was no part of his business to determine whether the election held in Ashley, Eastman, Campbell, Gray and Badgett precincts was regular or not. There was but one set of returns before him, and he was bound to forward an abstract, to the secretary of State, of those townships.

Now, let us see what his duty was, as to the township of Eagle, and the first and third wards of the city of Little Rock.

There were two sets of returns filed in his office, and counsel ask how was the clerk to determine which was the legitimate return ?

The third section of the election act requires the county court to revise the formation of election precincts in each county, and fix a place in each precinct or ward, where the election shall be held. The county clerk is the custodian of the records of the county court, and it will be presumed that he knew the action of the county court in this respect.

The fourth section of said act requires the board of registration, for each county, immediately before the election, to appoint three discreet persons, having the qualification of electors, in each election district, to act as judges of election. The petition alleges, and the demurrer admits, that a list of the judges, appointed by the board of registration, was filed in the office of the county clerk, and that he knew who the regular judges were.

Knowing that the law authorized the appointment of judges of election by the board of registration, and being furnished with the evidence of such appointment, now what was the duty of the county clerk ?

The counsel for the respondent, at this point, direct our attention to the seventh section of the election law, which provides that, “If the county court shall fail to fix a place at which elections are to be held in any election district, or the board of registration fails to appoint judges of election, or those appointed fail to act, it shall be the duty of the sheriff to fix a place for holding the election, and the voters, when assembled, may appoint the judges.” After directing our attention to this section, it is asked how the clerk is to know whether the return made by persons as judges elected by the voters, is the regular return of the election held, or whether that held by the regularly appointed judges should prevail ?

The answer is, that it appears that ‘ the board, of registration did not fail, to appoint,” and the evidence that the regular judges did not “fail to act,” is furnished by the returns filed in the office of the county clerk, and that the law does not recognize the right of the voters to select judges, except in the two-cases provided.

But it is urged that the returns from the township of Eagle, and the first and third wards of the city of Little Rock ara sworn to, and that it appears therefrom, that the regular judges-, did ‘fail to act,” and it is asked what the clerk is to do under such circumstances?

¥e have already stated that return of the regularly appointed judges was made to the clerk; it was to be presumed that they had acted, if they so returned ; and as to whether what is termed the “irregular polls,” were so sworn to, all that we have to say is,, that no such fact appears by the response or demurrer, and such statements must be treated de hors the record.

Then, we say, that the returns made by the judges appointed by the board of registration, and of which the clerk admits he was fully advised, ought to have been certified as the true returns, and the other should have been excluded from the abstract to the secretary of State.

The counsel for respondent direct our attention to the 41st section of the election law, to show that, if the clerk should reject or refuse to count the vote on any poll-book, of any election held by the people, the clerk is liable to indictment for a high, misdemeanor, etc., and that it was his duty to certify, to the secretary of State, all the returns that might be returned to his office, whether legal or illegal.

It will be a sufficient response to this to say, that the law -does not contemplate any such thing as an “illegal polland when the law speaks of “any 'poll-book,” it has reference to the poll-book of a legal election, and not to the poll-book of an -election that the record, in the office of the clerk of the county, advised him were prima facie void.

The records in the clerk’s office, as the respondent admits, contained the names of the judges of election, appointed by the board of registration, and the return of the judges, that they held an election under and by virtue of that appointment, became another record, showing that they had acted, and under such circumstances the clerk had no right to assume that they had “failed to act,-’ no matter who or how many had sworn they had not.

Having disposed of the township of Eagle and the first and third wards of the city of Little Rock, we will now proceed to inquire, the clerk’s duty, as to the townships of Caroline, Clear Lake, Richwoods and Prairie.

The counsel for McDiarmid urge, that the electors residing in the territory acquired from Prairie county, although electors of Pulaski county for the purpose of electing members of Congress, State and county officers, are not electors of the tenth senatorial district, and have no right to vote therein, the}7 having been electors of the twelfth senatorial district at the adoption-of the present Constitution.

In assuming this position, they urge that they are sustained therein by the plain provisions of the Constitution of this State.

The provision of the Constitution alluded to reads as follows: “ Until after the apportionment, as herein provided for, the senatorial and representative districts shall be composed of the following counties, to-wit: * * * Tenth district, of Pulaski and. White; twelfth district, of Prairie and Arkansas.”

Here we have an apportionment of the counties into senatorial and representative districts.

The concluding portion of the section declares that, “the senators and representatives shall be apportioned among the several senatorial and representative districts as follows, to wit: Tenth district, two senators and six representatives; twelfth district, one senator and four representatives.”

Here we have an apportionment of the number of senators, and representatives to the different districts.

The 8th section, of article 5 of the Constitution, then declares that “there shall be no apportionment, other than that made in this Constitution, until after the enumeration to be made in the year one thousand eight hundred and seventy-five.”

Here we have a declaration that the apportionment made by section 2, of article 15, shall remain as it now is until after the year 1875.

The inquiry now arises, does the act, entitled “An act to be entitled an act to change the boundary lines of Prairie and Monroe counties, and for other purposes,” change any one of the senatorial or representative districts, or the basis of representation or apportionment therein?

The Constitution declares that the tenth district shall be composed of the counties of White and Pulaski, and that the district shall have two senators and six representatives.

The counsel for the respondent urge that these provisions of the Constitution evidence an intention on the part of the framers of the Constitution, and the people who adopted it, to prevent the transfer of.electors, by change of county lines, from one senatorial and representative district to another. We do not assent to any such interpretation of the Constitution.

Section 12, of article 50, declares that “no county now established by law shall ever be reduced, by the establishment of any new county or counties, to less than six hundred square miles.”

The rule of construction is, that the Legislature may pass all such laws as to them may seem just, so long as they do not trench on the other departments of government, or the Constitution of the State. The inhibition in the section just quoted is, that counties shall not be reduced below six hundred square-miles. This does not prevent the Legislature from adding territory to another county, so long as it does not reduce a county below the number of square miles mentioned in the Constitution.

This general proposition is conceded by counsel for respondents, but they insist that, while it is true the Legislature may change the boundaries of counties, it cannot change the boundary of a senatorial or representative district.

We concede that the Legislature had no power to attach a portion of Prairie county to the tenth district for the sole purpose of allowing the electors of the twelfth district to vote in the tenth, without a change of county boundary. This would be a mere change of voters. But, in this instance, the county line is changed and the citizens are, by operation of law, moved from one county to the other for all purposes, as fully as though they had abandoned their former homes and moved voluntarily within the county of Pulaski. They then as much become electors of the tenth district as they were of the twelfth.

The boundary line of the tenth district is fixed by the boundary lines of "White and Pulaski counties, and not by what was the boundary of those counties at the adoption of the Constitution. To say that the electors of Prairie county may be transferred, by a change of county boundary, into Pulaski county, for the purpose of suing and being sued, for the purpose of voting for all State and county officers and members of Congress, and that they cannot vote for senators and representatives to be elected to represent the county in which they live and are interested, but that they must vote for men to represent them in the Legislature that do not live in their ■counties, is a proposition that, when once stated, shows the fallacy of the reasoning.

The tenth senatorial district is yet composed of the counties of White and Pulaski, and no other. The-officers of Prairie county have no jurisdiction over a single foot of the territory added to Pulaski, county. In making the apportionment the framers of the Constitution evidently intended that the boundary lines of the different counties, and not the boundary lines of the different townships of a county, should constitute the boundary lines of the senatorial and representative districts. The inhibition in the Constitution, in relation to apportionment, was to prevent the Legislature from changing the counties in the district — that is, from taking one county out of a district and placing another therein. If the Legislature should put White county into some other district, and Prairie into the tenth district, this would be such a change of apportionment of the district as the Constitution inhibits; or if the Legislature attempted to say that the tenth district should have one senator and four representatives, instead of two senators and six representatives, as now fixed by the Constitution, this would be such a change in the apportionment as the provision was intended to inhibit.

These things being true, the clerk of the county court ought to have returned the abstract of votes cast in these townships, as votes cast in Pulaski county, instead of votes cast in the county of Prairie, in the twelfth senatorial district. Whether the electors of those townships had a right-to vote in Pulaski county for senators and representatives to represent the tenth district, was a question that the law does not authorize a county clerk to decide. Ilis duty is simply ministerial, and it was for him to certify the returns, and let the proper tribunal pass on-the question of legality or illegality.

It is urged that mandamus is not the proper remedy, if the party can obtain justice by any other proceeding, and the case of “ The People v. The Supervisors of Greene, 12 Barb. 222, is cited as an authority in point, in which case the writ was refused on tlie ground tliat it would be “inappropriate and ineffectual.” There is no analogy between that ease and the one now before the court. In the case cited the mandamus was prayed for the purpose of convening a board of supervisors to meet and re-count certain votes, and the court refused the mandamus on the ground that the board was functus officio, and if convened, would have no legal authority to do the act prayed by the petitioner.

The county clerk is not fanchis officio, and, being a “public officer,” can be compelled to perform any duty which, by law, he is required to do, if the person asking it shows any legal right to have it done.

Other authorities have been cited to show that the sending of the abstracts forward, as prayed by the petitioners, would not establish them in their rights; and from this it is urged that the remedy is not efficacious, but on the contrary fruitless, and for this reason ought to be dismissed.

It appears to us counsel for respondent have mistaken the object of this proceeding. Its object is not to determine that the petitioners are entitled to seats in the House of Representatives, but to compel the county clerk to send such abstracts ■of the election to the secretary of State, as will enable him to put the persons names on the list to be made out by him, and furnished to the different houses, as appear to be elected by the returns properly certified to his office.

The amended petition sets up that the returns certified to the secretary of State are not returns responsive to the prayer of the petitioners. The prayer is that MeDiarmid be compelled to send an abstract of the votes cast in the township of Eagle and in the first and third wards of the city of Little Rock, of the election held by the judges appointed by the board of registration, and an abstract of all other returns or pretended returns of said election presented to him, or on file in his office.

In order to have complied with this prayer of the original petition, and that of the amended or supplemental petition, he must have sent to the secretary of State an ahstsact, “on a separate sheet of paper,” showing the number of votes each candidate received in the townships of Gray, Maumelle, Owen, Eourehe, Big Rock, Campbell, Union, Badgettj Eastman, Clear Lake, Richwoods, Ashley, Prairie, Caroline, Peyatte, Plant, Cypress, Bayou Meto, Mineral, Eagle and of the first, second, third and fourth wards of the city of Little Rock. An abstract had been sent to the secretary of State, it is true, showing a portion of the returns required by the abstract asked by the petitioners, but as to the township of Eagle, and the first and third wards of the city of Little Rock, it showed the votes cast at an illegal, instead of the legal poll. As to the townships of Prairie, Richwoods, Clear Lake and Caroline, the abstract sent to the secretary of State showed that the votes of those townships belonged to the twelfth, instead of the tenth district.

The response does not show the sending forward of the abstract asked by the petitioners, and which we think they are entitled to upon the showing made to the court.

The demurrer is overruled, and the writ prayed for will be awarded, unless the clerk can make a response that is responsive to the prayer of the petition.

[The demurrer to the petition being overruled, and the respondent having filed an amended response, the court delivered the following opinion thereon.]

MoClüRE, J.

The response admits the appointment of the judges of election, as alleged by the petitioners, save as to the township of Eastman, and denies that the judges, so appointed by the board of registration, were legal judges, on the ground that a list of the judges, so appointed as aforesaid, was not filed in his office until three o’clock, 3?. m., on Saturday preceding the election.

It is a sufficient answer to this to say. that the law does not fix the precise length of time the list shall be filed in the-clerk’s office before the election. The response shows it to-•have been filed on the Saturday before the election, which evidences the fact that, so far as the clerk is concerned, he knew who the judges of election, appointed by the board of registration, were. Whether the judges thus appointed were-legal judges, is a question the clerk had no power to decide,, nor can he question the validity of their appointment in this-, proceeding.

The response states, that the clerk had no information as to-armed mobs seizing and usurping the polls, and preventing-the judges appointed by the board of registration from acting-This denial, it is presumed, is intended to refer to the poll-books of the townships of Ashley, Campbell, Cray, Badgett and Eastman.

In the opinion delivered on yesterday, we said, that inasmuch as but one set ©f poll-books came up from those townships, the clerk was bound to presume in favor of their correctness, and certify them to the secretary of State.

As to the township of Eagle, and the first-and third ward’s of Little Rock, the response says but one set of poll-books were* returned into his office, and that said returns show that the-judges appointed by the board of registration had failedUo ■ open the polls in the time prescribed by law; all of which-tile clerk says will appear by reference to exhibits.

By reference to these exhibits we find what purports to be-a copy of a letter written, which is not even certified to as-being a correct copy of a letter on file in the clerk’s office, by." persons who sign themselves as deputy sheriffs, wherein, tbifp clerk is informed that at the hour of eight o’clock, the tíme fixed by law for opening the polls, there being no judges of election present, certain persons therein named were selected! as judges of election.

The response admits the return of the election returns-held by the judges of election, appointed by the board, of registration, in the township of Eagle, and the first., and third wards of toe city of Little Rock, but says on account of “official information and satisfactory indubitable testimony,” be certified the election returns of the election held by the judges elected by the people, to the secretary of State.

The only information the clerk seems to have had, as to the failure of the regular judges to act, was the letter purporting to have been received from some person signing himself deputy sheriff, and this constituted the “official information and indubitable testimony” on which be based his action.

In our opinion, this is not sufficient to overturn the returns of the regular judges, who made a return, showing they had ■acted. And, even if it did raise a question in the mind of the •clerk, be has no authority or power to decide it. , Ilis duty was to presume in favor of the regularity of the action of the persons who were appointed, in the manner prescribed by law, to perform the act of holding the election. The law makes it no part of the duty of deputy sheriffs to write such letters, ■-and, in the absence of such a provision of the law, the deputy •sheriff’s letters are entitled to no more credence than those of any other citizen of the State.

Judges of election, by the provisions of the sixth section of the election law, continue to be judges of election until the next general election ; and in every case where an election is held by persons other than the regular judges, the poll-hook itself ought to show the absence of the regular judges, or some reason why the regular judges did not act. In cases where a special judge is elected, the record always shows that the election was made because' the regular judge did not appear, or that he was in some manner disqualified by some provision of the law, and there is no good reason why persons not known to the law, as judges of election, should be excused from showing by what authority they have assumed to discharge duties enjoined’upon another. A letter from a deputy sheriff, directed to this court, informing it that the regular judge failed to appear, as the law provides, and that the bar elected a judge, would hardly supply the deficit in a record, nor would it show any authority in the judge to hear and determine cases.

The object of this mandamus, and its prayer is, that the cderk of Pulaski county make out an abstract showing the number of votes east at the election, held on the 8th day of November, 1870, for persons voted for for representatives in the General Assembly of the State of Arkansas, whereon will be shown the whole number of votes cast, according to the returns on file in the county clerk's office, for each candidate in the townships of Eastman, Clear Lake, Rich woods, Ashley, Gray, Prairie, Caroline, Peyatte, Plant, Cypress, Bayou Meto, Mineral, Maumelle, Owen, Fourche, Big Rock, Union, Campbell, Badgott, and the second and fourth wards of ihc city of Little Rock, and whereon will be shown the vote cast at the election held by the judges of election, appointed by the board of registration, in the township of Eagle, and the first and third wards of the city of Little Rock.

It is no response to say, that- the clerk has certified certain townships already. "What the petitioners want, is an abstract showing the information prayed for, and, to use the exact expression of the law, “on a separate sheet of paper.”

The peremptory writ is awarded, and the clerk of this court will issue it forthwith.

GRE&g, J.,

dissenting, says:

The plaintiffs bring their original petition, in this court, praying for a mandamus against the defendant, as clerk of Pulaski county, to compel him to certify what they allege to be the proper abstracts of election returns of said county, of the election held the 8th of November, 1870, and to file the returns, so certified, with the secretary of State.

The defendant responds that, before the filing of this petition against him, he did make and file abstracts and statements of all the votes cast at said election, etc., and of all returns, or pretended returns of said election, presented or filed in his ■office, and returned and certified the same, and filed them with the secretary of State; and by a demurrer clause in his response, he submitted that this court had no jurisdiction in this suit, :and that we should not take jurisdiction of the matter.

Upon the latter proposition, we have been unable to find any sufficient reason to change our views from the opinion expressed by the minority of the court, in the case of Price & Barton against Page, as treasurer. Our understanding of the 'Constitution of our State, and'the whole theory of our judicial system, convinces us that the Supreme Court of the State was, ;and is, intended as a tribunal of last resort; that its leading .-object and intent was, and is, the hearing of appeals and the •correction of errors; the holding of general supervision and •control over inferior tribunals, and that it is not the intent and -spirit of the Constitution, and was not the design of its framers, that this should be a court of first impression; that writs of this and a similar character should not be originally issued, and heard, and determined in this court; that, if so, no revisory power anywhere exists to correct the errors likely to ■be often intermixed in the haste of original trials. But, in this case, we will content ourself with these few general remarks on this subject, without quoting the various provisions in our Constitution that have led us to this conclusion, and .giving, at length, the cogent reasons why the people, in convention, should have intended, and did intend, that the Constitution be interpreted as we understand it.

The other question raised by the demurrer is, whether the ■case presented here, is a proper subject for judicial investigation in this court. We also assume the negative of this position. Our State Constitution, in reference to the Legislature, Sec. 4, Art. 5, declares that: “each house shall choose its own officers, determine the rules of its proceedings, judge of the •qualifications, election and return of its members,” etc.

To our mind, it is clear that the object intended to be accomplished by this clause was, to commit the whole subject of 4he election and qualification of members to that house, in -which, membership is claimed, for consideration and determination; and that no co-ordinate department of government was expected to influence or control them in their action.

The majority of the court admit that the legislative branch of the government alone is authorized to judge of the election, return and qualification of its members; but, they say, we are only asked, herein, to compel the clerk of Pulaski county court to send up to the secretary of State proper returns. Now if we can, under this Constitution, judge as to what are proper returns, and compel the clerk to make out such returns, can we not judge, also, as to the election or qualification of the members? The Constitution declares each house shall judge of the ■qualification, election and return of its members. Now, if we can disregard that clause in this Constitution, that declares that the house shall judge of the return, can we not, also, disregard that, which says it shall judge of the election and qualification of its members? Wherein is the difference? If we assume one function belonging to another department, can we not assume others? And, if we do this, are we not assuming a power that is given to a co-ordinate department, and not granted to us?

In section 556, “Law and Practice of Legislative Assemblies,” by Cushing, p. 225, the law is stated as follows: “It being a principle of parliamentary law that a legislative assembly is the sole and exclusive judge of the returns and elections of its own members, it follows that the validity of an election, or return, cannot be drawn into question, on a claim of privilege, for, otherwise, the independence of the Assembly would be placed completely at the discretion and in the power of other co-ordinate branches of the government,” etc. The law here declares that the return and election of members is within the sole and exclusive control of the Assembly. No distinction is here made by which a court can judge of the returns, and leave the house to judge of the elections aloné. This writer declares that the election, or return, cannot be drawn in question, etc. Not election and return, but or return, etc.; otherwise the independence of the Assembly would be placed completely at the discretion of other co-ordinate branches of the government, etc. It is to maintain this distinctiveness, and keep the one department of government free from the .interference and control of the others, that our Constitution has so-expressly and carefully conferred these powers upon the respective houses of the General Assembly; and, as Mr. Cushing says, “given them the sole and exclusive control over the election and return of its members.”

In England the returns were made and returned into chancery (while here they are made to the secretary of State,) and there recorded, and this return and record was the evidence of a member’s right to his seat, and in the work referred to, sec. 1050, this author says: “But as this record is made up from the returns in the first instance, and as they are received,, which cannot be altered but by the authority of the house, and as the house, which is the sole judge of the returns and election of its members, may, afterwards, upon investigation, find that a particular return is wrong, and that some other person should have been returned: it then becomes necessary, by analogy, to-legal proceedings in certain cases, that the record should be made to conform to the facts. Inasmuch, however, as the-record is in the chancery, and the power to rectify it exists-only in the house, the method of proceeding is for the house to direct the returning officers, if necessary, and the clerk of the crown, in chancery, to attend in the house and there, in its presence, to make the requisite alterations.” ¡See. 1051.

“These officers may, also, be directed to perform other official acts connected with the election and return of members, and are subject to the censure and punishment of the house for any neglect of duty,” etc. Nothing is here said of the returning officers being amenable to the courts, but it is said the house may punish, and it is here said, as to this return and record made in the crown office in chancery (with us in the office of the secretary of State,) “ The power to rectify it exists ofly in the house,” etc., while, in the matter before the court we are urged to have tbo returns corrected, that the secretary may correct his records or lists and certify accordingly. But again, in sec. 140, this author says: ‘As to the general duty of returning officers, it has been a point much agitated in England? whether it is wholly ministerial, or whether it is in any degree judicial.” In reference to this question, the writer already referred to, remarks: “There can be no doubt that in those branches of their duty, wherein the law has marked out a definite line, it is ministerial, etc., * In the judicial decisions of this country, where this point is adverted to, it seems to be considered that the returning officers are chiefly judicial in their character,” etc. Sec. 141.
“It remains to be observed, in conclusion, that the proceedings of these officers, from the necessity of the case, are, in the first instance, uncontrollable by any other authority whatever; so that if, on the one hand, notwithstanding an election has been effected, the returning officers refuse or neglect to make the proper return, the party thereby injured is without remedy or redress until the assembly, to which he is chosen, has examined his case"and adjudged him to be duly elected; and, on the other hand, if the returning officers make a return when no election has, in fact, taken place, or if not eligible, the person returned, will not only be entitled, but it is his- duty tO' assume and discharge the functions of a member until return and election are adjudged void.”

I have thus quoted at some length from this standard author, to show that the return, as well as the election of members, is solely under the control of the legislative department, and, as stated, the Constitution contemplates that it shall be entirely free from the influence or control of the judiciary and executive departments of the government, and that this may be placed beyond all question, the returning officers of elections are, by this law, declared to be beyond their control; and if, through the misconduct of such officer, a person is injured, as stated in the last paragraph quoted, he is, from the very necessity of the case, without remedy until the assembly meets. That is the court provided by the Constitution to try such case, and be must wait until it convenes, and therein have his rights determined. Yet it is assumed here that wo will control the returning officer and cause him to make a return different from what, in his judgment, he should make, and thereby change the rights of contestants, while the authority referred to is, that these officers are uncontrollable by the courts. This is a special matter, by the Constitution made triable by the legislative department, and intended and provided for the maintenance of the rights, dignity and independence of that department. And, in our opinion, the writ prayed for should be denied and the petition dismissed.

ITariusoN, J.,

dissenting, says:

Adhering to, the opinion I expressed in the case of Price & Barton v. Page, Treasurer, that this court has no original jurisdiction except in the exercise of its superintending control over inferior tribunals, I think wo should not take cognizance of this case. I concur, however, with the majority of the court, in the conclusions at which they have arrived, in respect to the other questions involved in the case.


source: Caselaw Access Project

author: GrEGP, J.,

license: Public Domain

text:
    Page, Adm’r etc. v. Cook, Adm’x etc.

      AkmikistbatioN — Letters, when not evidence. — Letters of administration issued by a clerk of the probate court, acting under authority of the Confederate State Constitution of 1861, after the inauguration of the State provisional government of 1864, are void, being issued without legal authority, and are not admissible in evidence.

      Appeal from Columbia Circuit Court.

      Hon. JohN T. Bearden, Circuit Judge.

      ■James li. Page, and E. W. Gantt, for appellant.

      Watkins Pose, for appellee.
   GrEGP, J.,

This is an appeal prosecuted from a judgment of the probate •court of Columbia county.

On the 20th of April,’1867, the appellant presented to the appellee for allowance, a claim founded upon two judgments, rendered in 1859, against her intestate. She rejected the claims, and the cause was submitted to the probate court on pleas of limitation, non-claim and payment. The court found for the appellee, and rendered judgment against the appellant for costs, from which he appealed to the circuit court. The judgment was there affirmed, and he appealed to this court.

Upon the trial in the probate court, the transcripts of the judgments rendered against the deceased, in his lifetime, were admitted to be properly certified, etc.

After introducing the transcripts, the claimant read in evidence, the letters of administration granted appellee, on said estate, in September, 1865.

The appellee, over the appellant’s objection, was then allowed to read in evidence, letters of administration issued to her, on tjxe 31st day of March, 1861, by one Daniel Dixon, as clerk of said county, who testified that he was not then acting as clerk under the Constitution and laws of 1864, but under the Confederate Constitution of 1861, and a commission issued by Harris Flanagan, as Governor of Arkansas.

There was no proof of payment, and it is not insisted that the claim was barred by the statute of limitations, but it is here insisted, as was held by the courts below, that the statute of non-claim cut off the demand, because it was not presented to such administratrix within two years from the 31st day of March, 1864.

At that time, a new Constitution had been adopted and ratified, and a valid provisional government inaugurated and put in force, and Dixon, who issued these pretended letters of administration, of March 31, 1864, was not then an officer of the government of the State of Arkansas, and consequently had no lawful authority to issue letters of administration.

These pretended letters were void, and should not have been admitted in evidence. The probate court, therefore, erred in admitting them, and in finding that issue in favor of the ap-j)ellee.

This ei’ror appeared upon the face of the record, and the circuit court should, therefore, have granted a trial de novo, and for the error in refusing so to do, the judgment of that court is reversed, and this cause is remanded, to be proceeded in according to law.

IIaRrisoN, J., dissenting.


author: 'WlLSHIRE, C. J.

text:
    Parsons v. Paine.

      Attachment — Publication.—Publications in suits by attachment, made, in conformity to the law in force at the time of the institution of the suit, will not be affected by a subsequent statute changing the manner of giving notice.
    Liens. — A judgment in attachment, though, in form, i;i personam, under-the statute, is a lien on no other property than that- attached.

      Appeal from Johnson Circuit Court.

    Hon. Thomas Boles, Circuit Judge.

      Clark J* Williams, for appellant.

      T D. T7. Yonley, for appellee.
   'WlLSHIRE, C. J.

At the April term, 1867, of the Johnson circuit court, Thomas 13. Paine, as common school commissioner of Johnson county, brought an action of debt, by attachment, against Hiram Parsons, on a writing obligatory, bearing date Febni-ary 5, 1861, and due six months after date, for $200, with interest at eight per centum.

A writ of attachment ivas issued; certain lands were attached as the property of Parsons', and the writ of attachment returned on the 16th day of February, 1867. The court, at the term to which the suit was brought, made an order of publication, as to Parsons.

At the succeeding term, in October, 1867, pi’oof of publication of notice was made, and the defendant failing to appear, as required by the notice, or order of publication, the circuit court rendered judgment against him for the sum of $200 debt, and $105 48/100 damages, etc.

The cause was brought here upon an appeal, granted by the clerk of tliis court, on the 17th of May, 1870.

The principal errors complained of, and for which this court is asked to review and reverse the judgment below, are: 1st. That the order of publication was made by the court below, when it should have been done by the sheriff, as proscribed by section 8, of the act of the General Assembly, approved March 7, 1867.

This suit was commenced, by the plaintiff suing out a writ of attachment, on the 14th day of February, 1867. It appears, by the return of the sheriff, contained in the transcript of the record, that the writ of attachment was executed by attaching certain lands, as the property of Parsons, and was returned on the 16th day of February, 1870.

The law regulating proceedings by attachment, in the circuit court, in force when this suit was commenced, provides that “if the defendant shall- not, on or before the third day of the term, * * * appear and plead, or otherwise answer the plaintiff’s action, the court shall order that a publications be made, containing a statement of the nature and amount of the plaintiff’s demand, and notifying the defendant that an attachment has been issued against his estate, and that, unless he shall appear by himself, or his attorney, on or before the third day of the next term, (stating the time the court will meet), judgment will be entered against him, and his estate sold to satisfy the same.” It is insisted by counsel for the appellant that this mode of giving notice to the defendant, in attachment proceedings, was changed by section 8, of the act approved March 7, 1867, and that the provisions of the latter act should have been observed in this case.

In this position of the learned counsel, we cannot agree.. The right of the appellee to proceed under the law regulating ■ the proceedings in attachment suits, in force prior to the passage of the act of March 7, 1867, had attached before the passage of that act. The appellee had, before that time, commenced his suit, the writ of attachment had been issued and executed, by a levy upon the lands of the appellant) and returned by the sheriff so executed. The only thing remaining to be done, was for the court to make the order of publication, which could not be done until the time arrived for the court to be held, which was subsequent to the passage of the act of March 7,1867.

It is clear, from the language of the act of March 7,1867, that the Legislature intended that it should be prospective in its operation; that it was intended to apply to actions of attachment thereafter to be commenced, and not to those commenced under the law prior to the passage of the act. The language of the 8th section of the act is: “When any writ of attachment shall come into the hands of any sheriff, or other officer, and the defendant named in such writ cannot be found in Ms county, it shall be the duty of such officer to make 'publication” etc. There are no words in that act that can bo construed into giving it a retroactive effect.

This court has repeatedly held, that a statute will not have a retrospective operation, unless there are words contained in the act.clearly showing that to be the intention of the Legislature. Couch v. McKee, 1 Eng. (Ark.), 493, and the authorities there cited.

The second, and only remaining question raised by counsel for the appellant, that appears in the record, is: That the judgment against the appellant is in personam.

The learned counsel seem to insist that the judgment, in the form it was rendered against the appellant, is a lien upon his property, other than that seized, by virtue of the writ of attachment.

This objection is not good. By the transcript of the record before us, we find that the judgment rendered by the court below is in the usual form in such proceedings, and in conformity to the statute; sections 24 and 31, chapter 17, Gould’s Digest.

It is true that the judgment is, in form, in personam, under the statute; but the only writ the appellee was entitled to, for the execution of his judgment, in this case, was a venditioni exponas, or special execution, commanding the sheriff to sell the property formerly seized under and by virtue of the writ of attachment. The judgment against the appellant was a lion on no other property of his than that attached.

The counsel for the appellant state that an execution was issued upon the judgment, and the property sold, etc., without a bond being executed by the appellee, as required by law in attachment proceedings. There is no such question presented by the transcript before us. It does not appear by the record that any proceedings have ever been had to execute the judgment.

Finding no error in the proceedings of the court below, in this cause, the judgment is, in all things, affirmed.


author: HaReisoN, J.

text:
    Tubbs et al. v. Gatewood et al.

      ’D'E'SDS,— Gomtruation of. — Where two clauses in a deed are so totally repugnant to each other that they cannot stand, together, the first shall be received and the latter rejected.
    In the common understanding and acceptation of their meaning, the words “signed and sealed,” in the certificate of acknowledgment, is an equivalent expression for “signed, sealed and delivered,” or “executed.”
    The words “without undue influence or [compulsion of her husband,” in the certificate of acknowledgment of a married woman, in their common acceptation, are equivalent to the expression of her “own free will, without undue influence or compulsion of her husband.”
    Acknowledgment. — A substantial compliance with its requirements, in the acknowledgment of a deed, will dispense with a literal conformity with the statute.

      Appeal from Prairie Circuit Couit.

    How. JoiiN 'Wiiytocic, Circuit Judge.

      Watkins Pose, for appellant.
    The statute prescribes one form of acknowledgment, whore the wife owns the land, and a different form where she merely has a dower interest. Gould’s Big. eh. 37, see. 81, and forms 89 and SO, in the appendix.

    In the case of Lane v. Bollicie, 6 McLean, 800, on a like statute, and the cases there cited, are, to our minds, conclusive •of this case.

      Clark f Williams, and English, Gantt § English, for appel-lees.
    The deed to A. J. Ellis is a valid deed between Sheppard and wife — signed and acknowledged by both of them, and by Sarah Sheppard, separate and apart. The validity of the deed under the provisions of sections 10, 11 and 81, chap. 37, Gould’s Big. (the title being shown to have been in the wife), depends upon tbe acknowledgment coming witbin tbe provisions of section 21.
    Slight verbal variation or surplusage in tbe form of acknowledgment, if a substantial compliance, does not vitiate a deed. Bex v. Hamilton, 7 Halstead Bep. 109; Jackson v. Inman, 8 Gowen 558.

    In tbe acknowledgment of a wife’s conveyance, tbe form of tbe certificate is immaterial, provided tbe directions of law are substantially complied with. Talbot v. Simpson, Peters G. G. Bep. 188; Watson v. Mercer, 6 S. B. -J¡9; 6 Binney, 1¡S7; Bee v. Hall, 8 Har. McHer. 19 Bex v. Guger, 1¡. Halstead, .885.

    After great lapse of time, courts will presume that the deed was properly acknowledged, even if defective. Jackson v. Gilchrist, 15 Johnson Bep. 91.

   HaReisoN, J.

This was an action of ejectment, by William Tubbs and bis wife, Priscilla M. Tubbs, and George W. Sheppard, against James E. Gatewood, James S. Thomas, Nathaniel H. Burk, Nicholas Burnett, Mack Banks, Jonas McKindree and Stephen Forehand, for a block of ground, in tbe town of Bes Arc. Tbe defendants, except McKindree, who was not served with process, pleaded tbe general issue, and the verdict and judgment were in their favor.

Tbe block in controversy, was conveyed by George 0. Watkins to Sarah Sheppard, wife of Christopher Sheppard, on the 21st day of May, 1850, and she and her husband were in possession in that, and several years thereafter. On the 23d day of October, 1854, Christopher Sheppard, and his wife, conveyed lots three, four, five, eight, nine and ten, in said block, to Albert G. Ellis, under and from whom the defendants claim title.

The deed to Ellis, which was read to the jury against the plaintiff’s objection, purported to grant, bargain, sell, alien and convey the lots to him in fee simple; and, except that it contained, after the grant or conveyance of the property, a clause of relinquishment of dower by Mrs. Sheppard, was in every respect in the usual form of a deed of conveyance, of a-married woman’s real estate-, but the certificate of her acknowledgment attached to the deed was as follows: “I further certify that on this day, voluntarily appeared before me, Sarah Sheppard, wife of the said C. Sheppard, to me wpll known as the person whose name appears upon the within and foregoing deed of conveyance, and, in the absence of her husband, declared that she had signed and sealed the relinquishment of dower, and the foregoing deed of conveyance., therein expressed, for the purposes therein contained and set forth, without compulsion or influence of her husband. In testimony whereof,” etc.

Sarah Sheppard died in 1859, and her husband in 1861, and her heirs-at-law were her children, the plaintiffs, Priscilla M. Tubbs and George "W. Sheppai’d, Salina Sheppard and Frederick Sheppard. Salina Sheppard died, without issue, in 1863. Frederick Sheppard, on the 24th day of December, 1867, conveyed all his right and interest in lots one, two, three, four, five, eight, nine, ten, eleven and twelve, in the block in controversy, to Priscilla M. Tubbs.

Evidence was adduced to prove that the defendants were in possession of the property at the time of the commencement of the suit.

The two following instructions, asked by the plaintiffs, were refused by the court :

1. “If the jury believe the evidence before them, the plaintiffs are, upon the construction and legal effect of the deed from Christopher Sheppard and. wife to Albert G-. Ellis, entitled to recover the property therein described.”

2. “If they believe the evidence, the plaintiffs are, upon the construction and legal effect of the deed read in evidence, entitled to recover an undivided half of the property described in the deed from Christopher Sheppard and wife to said Ellis.”

The main question for our decision, and upon which all others depend, is as to the sufficiency of Sarah Sheppard’s acknowledgment of the deed to Ellis. If properly acknowledged, no serious doubt can exist that it conveyed the fee in the lots described in it, which was in her, to Ellis; for it is a familiar and well settled rule in the construction of deeds, that where there are two clauses so totally repugnant to each other, that they cannot stand together, the first shall be received and the latter rejected. Besides, being herself the owner of the property, she had no right of dower to relinquish, and we cannot presume that she intended a nullity.

Section 21, chapter 57, Digest, prescribes the manner of authenticating conveyances of real estate by married women, as follows:

“The conveyance of any real estate by any married woman, or the relinquishment of dower in any of her husband’s real estate, shall be authenticated and the title passed by such married woman voluntarily appearing before the proper court or officer, and, in the absence of her husband, declaring that she had, of her own free will, executed the deed or instrument in question, or that she had signed and sealed the relinquishment of dower for the purposes therein contained and set forth, without compulsion or undue influence of her husband.”

In taking the acknowledgment of a deed, as well as that of a married woman as any one else, a literal conformity with the statute will be dispensed with, when there is a substantial compliance with its requirements. Trammell v. Thurmond 17 Ark., 216; Jacoway v. Gantt, adm’r., 20 Ib., 190; Alexander & Belt v. Merry, 9 Mo., 510; Webster’s Lessee v. Hall, 2 Har. & McH., 19; Dex v. Geiger, 4 Halst., 225, Nantz v. Bailey, 3 Dana, 111.

Though signing and sealing, without delivery, is not a complete execution of an instrument, the phrase “signed and sealed,” in the certificate, was obviously used agreeably to the common understanding and acceptation of its meaning, as an equivalent expression for “signed, sealed and delivered,” or '“executed.”

Mrs. Sheppard’s object and purpose was, as stated in her acknowledgment, to make a conveyance of the lots described in the deed, and the officer, by whom it was taken, must have understood her as declaring that she had executed it, for we cannot conceive that he intended to certify to so nugatory an act, as that she acknowledged the signing and sealing only of the instrument.

It is further contended that if an execution of the deed is shown by the certificate of acknowledgment, she did not declare it to be of her “own free will.” The certificate does not so state, in those words, but she declared that it rvas without compulsion or undue influence of her husband.” The wife is under subjection to no one except her husband, and her freedom from the constraint and control of all other persons is presumed, and need not be shown, and the free will with which :she is required to act in the disposal of her real estate is, free■dom from the constraint and undue influence of her husband. That appearing by the certificate, we are clearly of the opinion that her voluntary execution of the deed is sufficiently stated therein.

Holding, then, that the provisions of the statute were substantially complied with, and that the deed conveyed Mrs. Sheppard's interest in the lots described in it, there could be -no valid objection to its being read to the jury, and it must, for the same reason, likewise follow, that the court did not err In refusing to give the jury the instructions asked by the plaintiffs.

The judgment of the court below is affirmed.


author: WlLSHIRE, O. J.

text:
    Sevier adm’r. et al. v. Haskell, adm’r.

    OeHSTiTTraoiTAii Law — Contracts for sale of slaws. — Section 14, article 15, of the present Constitution, relating to contracts for the sale or purchase of slaves, is repugnant to section 10, article 1, of the National Constitution, relating to the obligation of contracts and is therefore unconstitutional and void.

      Appeal from Arkansas Circuit Court.

    HoN. II. B. Morse, Circuit Judge.

      Watkins $ Hose, Garland §• Nash, for appellants.

      Clark if- Williams, Bell Carlton and J. W. Martin, for ap-pellee.
   WlLSHIRE, O. J.

This suit was originally instituted in the Arkansas county circuit court, sitting in chancery, by L. C. Haskell, as administrator of the estate of Augustus M. Smith, deceased, against Ambrose H. Sevier, as administrator of John A. Jordan, deceased, and the heirs at law of said Jordan, the purpose of which was to foreclose a mortgage executed by Jordan to Smith, in the lifetime of both.

The cause was brought to a hearing in the circuit court; upon consideration of which a decree was rendered dismissing the bill and for costs, from which the complainant appealed.

Upon that appeal, this court reversed the decree of the court below, and remanded the cause with instructions to render a decree in favor of the complainant, in accordance with the prayer of his bill, etc.

At the November term, 1868, of, the court below, Haskell filed, the mandate of this court. Thereupon the present appellants presented their separate petitions, showing to the circuit court that since the decision in this cause, by this court, upon the former appeal, tbe present Constitution of the State had been adopted and ratified, which ordained that “all contracts for the sale or purchase of slaves, are null and void, and no court of this State should take cognizance of an j suit founded on such contracts; nor shall any amount ever be collected or recovered on any judgment or decree which shall have been, or which hereafter may be, rendered on account of any such contract or obligation, on any pretext, legal or otherwise.” The petitioners prayed that further proceedings in the case be stayed, and perpetually superseded, and that the circuit court take no further cognizance of the suit, etc.

The court below refused to grant the prayer of the petition, and rendered a decree in favor of the complainant against Sevier, as administrator, etc., for the sum of $84,000, and the further decree, that the mortgage be foreclosed against each and all of the defendants, etc.

To the ruling of the circuit court, in the overruling and refusing to grant the prayer of the appellants’ petition, they excepted and appealed to this court.

The only ei’ror complained of by the appellants, on this appeal, is the ruling of the circuit court, refusing to. grant the prayer of their petition. No other question is raised by the proceedings, subsequent to the filing of the mandate of this court. All questions raised prior to that time, were decided when this case was here before, and are, so far as this case is concerned, settled. See C. G. Scott, executors, v. Eaton & Betterton, decided at the present term, and cases there cited.

The only question demanding our attention, is that raised by the appellants’ petition. This court, in the case of Jacoway v. Denton, 25 Ark., 625, held that section 14, article 15, of the present Constitution, relating to contracts for the sale or purchase of slaves, is repugnant to section 10, article 1, of the national Constitution, relating to the obligation of contracts, and is, therefore, unconstitutional and void.

That provision of our present State Constitution, being the only ground relied on by the appellants for the granting of the stay of further proceedings, and a perpetual supersedeas in the court below, we think, under the ruling in Jacoway v. Denton, the circuit court did not err in refusing to grant the prayer of the appellants’ petition.

The judgment and decree of the court below is, in all things, affirmed with costs.


author: Harrison, J.

text:
    Adams, Ex’r., v. Ward & Co.

      Partners — Survivors.—Surviving partners have tlie exclusive possession and management of tlie business of a firm, dissolved by tlie death of one of the partners, but only for the purpose of settling and closing the same, and are tenants in common with the representatives of the deceased partner.

      .Evidence — Partnership transactions. — Without some evidence to connect it with a transaction with the original firm, a receipt in the hand writing of an agent of the surviving partner, not mentioned therein as such, is irrelevant and inadmissible in evidence, as against a demand in favor of the original firm. *•

      Appeal from Franklin Oirev.it Court.

    1ÍON. Thomas Boles, Circuit Judge.

      Garland, £ Nash, for appellants.
    The receipts offered in evidence, should have been received as presumptive proof, at least, of payment, to be rebutted by W. & Co. 1 Greenl. Fv., 1J¡.., 88 and 1¡£; lb. 117, note.

    From the proof, every presumption must be indulged that the parties were satisfied that the note was settled. Greenleaf sup; 8 Ark,., 818; 9 lb., 889; Smith (Tucker, 8, F. D.), {N. Y.) 198; Busbee v. Allen, 81 Vt., (8 Shaw) 681; 1 Wallace, (U. S.),

      627, et seq. The facts, taken together, show the verdict is entirely without evidence to support it, and all the court can do is to set it aside. 14 Ark., 202; Ark., 701; 20 lb., 444-

    The court erred in refusing to give the second instruction; it was in the very language of the law. Gould’s Dig., p. 121, sec. 102, chap. 1; and the objection can be had at any time during the trial. 14 Ark., 237. The third instruction was, in substance, our statute of non-claim, Gould’s Dig., sup., p. 120, sec. 99, and should have been given. All the courts guard and enforce this statute. 11¡. Ark., 24.6-7; 18 lb., 834.

      Clark i Williams, for appellees.
    Did the court err in excluding the receipts, as evidence, from the jury? and, if so, is that error before this court for correction? See Stillvjell v. Young, 17 Ark., 478; Gamp v. Gullett, 7 Ark., 514; Carr v. Grain, ib., 241; Daferty v. Day, ib., 264: Campbell v. Thurston, 6 Ark., 441.

    But the court did not err in excluding those receipts. The evidence of facts, as preliminary to the introduction of evidence, is passed upon by the court, and not the jury, and a new trial will not be grantSl, where there is a fair conflict of such preliminary evidence, although the court may find against such preponderance of evidence. Seymour v. Beach, 11 Gown, 275, 281; McMunygel v. Boss, 20 Pick., 99, 108; (Donelson v. Taylor, 8 Pick , 290; Coleman v. Woolcoit, 4 Day 888, contra). See, also, Harris v. Wilson, 7 Wend., 57; Penful v. Carpenter, 18 Johns., 850.

    The statute of non-claim is not available.unless specially pleaded. State Bank v. Wallace, ad., 14 Ark., 286; Walker v. Byers, ib., 259; Biscoe, et al., v.. Maden, 17 Ark., 538. But, any how, the credence went to the jury, and there being no motion for a new trial, their finding is conel usive. State v. Jennings, 10 Ark., 429; State Bank v. Gonway, 18 Ark., 844; Defils v. Sügg, 15 Ark., 137.

   Harrison, J.

Augustus L. Ward and Leonard C. Southmayd, surviving partners of-"Wallace, of the firm of Wallace, Ward & Co., presented to the court of probate, of Franklin county, for allowance, a demand against the estate of Abner Adams, deceased, for $481 85, a balance due on the following promissory note, made by Berry & Adams, of which firm the said Abner Adams was a member.

“$500. Yan Burén, Arkansas,
November 21,1857.
Six months after date we promise to pay to the order of Wallace, Ward & Co., five hundred dollars, with interest, at the rate of — per cent, from date until paid. Yalue received.
Witness my hand and seal.
BERRY & ADAMS.”

The decision in the court of probate being against the validity of the demand, the claimants appealed to the circuit court.

The circuit court reversed the judgment of the court of probate, and upon a trial de novo, the claimants recovered judgment for the amount of their claim.

The executor, James H. Adams, appealed to this court.

Upon the trial in the court of probate, after the claimants had read the note in evidence, the executor, having first proven it to be in the hand-writing of John Ingram, and that he was, at the date thereof, the agent of the plaintiffs, who composed the firm of Ward & Southmayd, and authorized to make collections for them, read in evidence to the jury the following receipt:

“Received, Huntsville, Ark., July 13, 1859, of H. C. Berry, five hundred dollars, on note of Berry & Adams.
WARD & SOUTHMAYD, per John Ingram.’'’

And in the circuit court, upon a like showing, he offered again to read the same, and also the following receipt to the jury:

“Received, Huntsville, Ark., March 1st, 1860, of H. C. Berry, five hundred dollars, to be credited on note given by Berry & Adams.
WARD & SOUTHMAYD, per Ingram.”

Although the firm of Ward & Southmayd was composed of the surviving members of the firm of Wallace, Ward & Co., there was no identity in respect to the property and business ,of the two firms. By the death of their partner, they became ehtitled to the exclusive possession of the property and management of the business of the firm of Wallace, Ward & Co., but only for the purpose of settling and closing the same, and were tenants in common with the representatives of their deceased partner. Par. on Part. 440.

Without some evidence to connect the receipts with the note to Wallace, Ward & Co., and none is disclosed by the record, they were wholly irrelevant to the case; and as they were calculated to mislead the jury, the admission in the court of probate of the former, against the objections of the claimants, was an error, and for which we presume the circuit court re-verBed its judgment; and for the same reason the latter court •did not err in excluding both from the jury.

The record presenting no other question, the judgment of the court below is affirmed.


author: McClure, J.

text:
    Robinson v. White.
    Constitutional Law — Statutory offices. — The office of assessor is a statutory office, and the Legislature has absolute control over all statutory offices and may abolish them at pleasure, and in doing so, no vested right is invaded.
    The act of July 23, 1888, providing for the appointment of the officers contemplated by section 2, of article 10, and tho change thereby made, is not in conflict with that clause of the Constitution that declared that the “term of all officers, elected or appointed under the provisions of this Constitution, shall expire on the first day of January, 1873, unless herein otherwise provided.”

      Appeal from. Phi 'lips Circuit Court.

    Hon. John E. Bennett, Circuit Judge.

      Palmer J Sanders, for appellant.

      Garland £ JS'ash, for appellee.
   McClure, J.

There is but one question presented by the record in this case, and that is: Who is the legal and lawful assessor of Phillips county V

Under the provisions of an act, approved January 21, 1861, it is provided that an assessor shall be elected in Phillips county, at the general election, who shall hold his office for two years and until his successor is elected and qualified.

Robinson, in his complaint at law, recites that on the 13th day of March, 1860, he was elected assessor of Phillips county, and commissioned as such by the Governor of Arkansas, and was duly qualified as such assessor, on -the 23d of July, 1868. He further states that he made the assessment 'of Phillips county for the years 1868-9, and was proceeding to make the assessment for the year 1870, when James T. White, on or about the 10th day of January, 1870, forcibly entered upon and usurped his said office, without warrant or authority of law.

White filed an answer to the complaint, admitting the election of Robinson, and that he was commissioned by the Governor; that Robinson made the assessment for the years 1868-9, and that he filed his bond, etc., but denies that he forcibly entered upon oí’ usurped the office of assessor of said county of Phillips. White asserts that at the time of said election of Robinson there was no such office as assessor under the Constitution of the State of Arkansas; that, by the provisions of an act, approved July 23, 1868, it is made the duty of the Governor to appoint some suitable person in each county as assessor, whose term ©f office shall continue until the year 1872, unless sooner removed, etc.; that under the provisions of said act he was appointed assessor of Phillips county, and said Robinson removed, etc.

To this answer a demurrer was filed setting up that the-answer does not set up facts sufficient to constitute a defense. The court overruled the demurrer, and rendered judgment for the appellee, and Robinson appealed.

It is urged by the appellant that the second declaration of section 16, article xv., which declares that “all laws not in conflict with the Constitution shall continue in force until otherwise provided by the General Assembly,” continued the-office of assessor of Phillips county provided by the act of Januanr 21, 1861; and from this he proceeds to question the power of the Legislature to oust him of his office by legislative-enactment.

The office of assessor to which Robinson was elected, it is admitted, is a statutory office.

The counsel for the appellant seem to be influenced or impressed with the idea, that Robinson had some kind of vested right to the office of assessor, because he was elected by the people. The Legislature has absolute control over all statutory offices, and may abolish them at pleasure; and in doing so no vested right is being invaded. 9 Ark., 270; 24 Mo., 22; 1 Selden, 285; 7 Hill, 81; 2 Denio, 272.

The second section of article x, declares that “real estate shall be appraised at least once in every five yearB, by an appraiser, to be 'provided, by law, at its true value in money.” The entire basis or system of taxation is changed by the Constitution of 1868 ; the property is to be appraised, not in the manner then provided by law, but by an appraiser uto be provided by law.” The language of the present Constitution clearly indicates that the assessment, to be made as a basis of taxation, was to be done, not by the assessors then provided by law, but by assessors “to be provided by law.”

It is admitted by the demurrer that the Legislature, by the •act approved July 23, 1868, did provide for the appointment ■of the officer contemplated by section 2, of article x, and that White was appointed, as therein provided, and exercised the duties of the office of assessor by virtue of said appointment.

The only question raised by the demurrer is, whether the change made by the act of July 28,1868, is in conflict with that clause of the Constitution that declares that “the term of all officers elected or appointed under the provisions of this Constitution shall expire on the first day of January, 1873, unless herein otherwise provided.” We have already determined that the assessor appointed or elected under the provisions of the act of January 21, 1861, was the appraiser or assessor contemplated by the second section of article x., and it follows from this that neither the election nor commission of Robinson gave him any right to the office, therefore the tenure of his office was not protected by that clause of the Constitution, which declares that the officers elected under the provisions thereof, should hold until January 1, 1873. The office, to which Robinson was elected, was repugnant to the terms of the Constitution itself, and no act of the electors or the commission based on it could cure his title.

Finding no error in the judgment of the Phillips county circuit court, the same is affirmed with costs.


author: Bowen, J. Behnett, J.

text:
    Kent v. Gray, Adm’r.

    Practice. — A party cannot complain of an error, when error, if any, is in his favor.
    Where the record recites, as part of the transcript of the justice, before ■whom the suit was brought, that a note was filed, this court is forced to take the record as true, the party not having taken the proper steps in the court below to contest it.
    Where the record does not show that the court below was asked to rule upon the admissibility of evidence, this court is bound to presume in favor of the decision of the court below, whenever the record fails to clearly and affirmatively show that there was error.

      Appeal from Prairie Circuit Court.

    Hon. John Whytock, Circuit Judge.

      J. W. Martin, for appellant.
    The note sued on does not show the amount, or when interest commences, whether from maturity or date, and is not such as is contemplated by sec. £5, chap. 99, Gould’s Pig. p. 657.

    It was wanting in one of the essential elements of a promissory note, which must he for a fixed and certain amount. Story on Prom. Notes, sec. 19, and citations.
    The plaintiff is not without remedy on a mutilated note. See Grcenleaf Ev., sec. 566, ct seq; Gould’s Pig., chap, 99, sec. 9,6.

    Ueither the justice’s court or the circuit court, have jurisdiction, and the whole proceeding was coram non judice. Peeves v. Clark, 5 Ark., 97; Anthony, Ex parte, 5 Ark., 858; Pendleton v. Fowler, 6 Ark., 4.1; Levy v. Shurman,ib., 182; Sutton v. Jones, ib., 271; Everett v. Clements, 9 id., 480; Butler v. Wilson, 1.0 ib., 816; Collins v. Woodruff, 9 ib., 4-38.

    The evidence was not sufficient to establish the claim. Taylor v. Biggs, 1 Pet., 600; 1 Greenl. Ev„ 566, et seq.

    There was no privity between the parties independently of the special contract, and the common counts will not avail. 1 Ghitty Pl’d, 373; Story on Prom. Notes, s■ s. 10Jh 405; Black v. Zadesie, 3 How., 483; Gostar v. Navies, 8 Ark., 217.

      English, Gantt $• English, for appellee.
    The issue was tried by the court, sitting as a jury, and finding for plaintiff, and motion for new trial overruled. No question of law was reserved at the trial, but this court is asked to review the finding of the court below. This court will not, as it has repeatedly held on such appeals, inquire into the weight of evidence, but will affirm the judgment, unless there was a total want of evidence to sustain the verdict. Mayers v. State, 2 Eng., 17 1; Brennan v. Brown, 5 ib., 138; Syr ait v. Vaughn, ib., 4-71/,; Hendrix v. Sharp, 13 Ark., 306; Allen v. Nordhamer, ib„ 339; Moss v. State, 17 Ark., 327.

    Admissions against interest are competent evidence. 1 Greenl. Ev, secs. 180, 191.

   Bowen, J.

The appellant, the administrator of the estate of M. T, Cooper, deceased, brought suit, before a justice of the peace, upon a mutilated promissory note, executed by T. B. Kent. This note bears date, January 1, 1862, but the amount of the note cannot be be determined, on account of certain portions thereof being destroyed. At the trial before the justice of the peace, the appellant, Kent, moved to dismiss the cause, on the ground that the note, or demand sued on, was not the individual property of the plaintiff, which motion the court, after having heard the evidence, sustained and dismissed the suit. "Whereupon the plaintiff appealed to the circuit court.

In the circuit court, the defendant, Kent, plead the general issue; also, plead specially that the note sued on was not the property of the plaintiff, as administrator of M. T. Cooper, de-«eased, but the property of John Jackson, the surviving partner of the firm of John Jackson & Co., upon which pleas issue was joined.

The cause was submitted to the court, sitting as a jury, which gave judgment for the plaintiff in the sum of $96 debt, and $69 damages, with costs of suit. Defendant moved for a new trial, which was overruled, and the cause is here on. appeal of the defendant.

The new trial was moved on the ground that the finding was not supported by the evidence; that the verdict and judgment are not supported by the law of the land, and that the statements of John Jackson were received as testimony, whereas, by the law of the land, it should have been excluded.

The record discloses that the note sued on, was executed to TIalsey & Erwin, on the 1st of January, 1861, and was payable to them, or their order; that it was indorsed by them, in blank, and delivered, in payment for goods, to the firm of John Jackson & Co., of which firm Cooper was, in his life time, a partner, and was in Cooper’s possession, who had charge of the books and papers; that the note was, with others, buried during the war, and was so defaced that the amount of it could not be determined, only the words, “dred and four and $>9-dollars,” being discernable. The defendant, Kent, swears that the account with Halsey & Erwin, for which he gave the note, was $97, but presumes that, as the note seems to be for more than $100, there must have been some other transactions included in it, but what the additional amount was, he could not say. Halsey and Erwin both swear that the note was due. one day after date; that it was indorsed in blank, and it appears from the note that it bore interest at the rate of ten per cent, per annum.

But was the note the property of the estate of Cooper, or that of John Jackson, surviving partner of the firm of John Jackson & Co., of which Cooper had been a member? The note, as before stated, was indorsed in blank, by Halsey & Erwin, to the firm of John Jackson & Co. Cooper died during the war and this note, with other papers, were in the possession of his widow, and by her delivered to the administrator, Gray, as part of the estate. The record, however, further discloses that Cooper was the book-keeper, and had charge of the books, notes and accounts — also, that before the death of Cooper, the firm of John Jackson had quit business, as merchants, and were winding up their affairs — also, that at onetime John Jackson, as surviving partner, received other claims from Gray, as administrator, but declined to take this note — that at other times he claimed it as firm property.

We will not, of course, express any opinion as to the weight of evidence; it being well settled that this court will not reverse the judgment of the court below on that ground. Mayers v. State, 2 Eng. 174; Drennan v. Brown, 5 Eng. 138; Spratt v. Vaughan, Ib. 474; Hendry v. Sharp, 13 Ark. 306; Wass v. State, 17 Ark. 327; Ib. 478; McLure v. Hart, 19 Ark. 119; Mason v. Edgington, 23 Ark. 208.

The note was indorsed in blank, and was transferable by delivery. The evidence conduces to show that it was among Cooper’s papers, and it appears that Jackson declined to receive it from Gray, when offered. The court below must have found, on this evidence, that there was a transfer, and having so found, we are inclined not to interfere with the finding, but take it as true. We confess we do not understand exactly why or how the learned judge, sitting as a jury, found the sum of ninety-six dollars, principal, to be due — there being no plea of payment or set off, for, unless his payment was founded upon the note for one hundred and four dollars and ninety-three cents, filed with the justice, the whole matter was “ coram nonjudice,” and the suit should have been dismissed; but the judgment for ninety-six dollars, principal, being an error in favor of the defendant, he cannot complain. Reeves v. Clarke, 5 Ark. 27; Pendleton v. Fowler, 6 Ark. 41; Latham v. Jones, Ib. 371; Everett v. Clements, 9 Ark. 480; Collins v. Woodruff, Ib. 463; Butler v. Wilson, 10 Ark. 316.

It is insisted here that the suit should he dismissed for want of jurisdiction in the court below, because no cause of action was filed with the justice of the peace before the issuance of the summons; but the record recites as part of the transcript of the justice, before whom the suit was brought, that the plaintiff “filed before me, one note against T. Blake Kent, for one hundred and four dollars and ninety-three cents,” etc., and the court is forced to take the record as true, the defendant not having taken proper steps in the court below to contest it.

It is also insisted that on the trial of the cause, evidence of the statements of John Jackson were received as testimony, when it should have been excluded. Ilis statements being those of a third person, and not a party to the suit, were simply hearsay, and evidently not admissible. And it was the duty of the judge to disregard them, and, if requested, to declare that they were not admissible. The record does not show that the court paid any attention to these statements, nor that the judge was asked to declare that these statements were not admissible as evidence, and failed to do so, and this court is bound to presume that the decision of the court below was correct, wherever the record fails to clearly and affirmatively show that there was error. Dyer v. Hatch, 1 Ark. 339.

It appearing from the whole record that there is no error of •which the defendant can complain, the judgment of the court below is affirmed.

[The appellant filed a motion for a re-liearing herein, upon which motion the following opinion was delivered.]

Behnett, J.

This is a motion for a re-hearing of the case, made by the appellant, Kent. The facts will be found stated in the above; opinion, when it was decided by this court, Bowen, J. writing the opinion.

The motion for a re-hearing is based upon the words of the opinion, as follows: “We confess we do not exactly understand" why or how the learned judge, sitting as a jury, found the sunn of ninety-six dollars principal, to bo due, there being no plea. of payment or set off; for, unless his judgment was founded upon the note tor one hundred and four dollars and ninety-three cents, filed with the justice, the whole matter was coram non j utilice, and the suit should have been dismissed;” together-with that part of the opinion of the court which relatestto the-fact as to whether the cause of action was filed with the justice • of the peace before summons issued.

The attorney for appellant, Kent, insisting that, oven if the note was filed before the justice of the peace, when the case came before the circuit court, it was a trial ele :novo, and the paper writing as attached to the transcript was not a note.

The general rule is, that a re-hearing will not be had, in any case, when substantial justice has been done between the parties, or when the party seeking a re-hearing has not been injured. When the real merits of the controversy has been reached, it would be unjust to reverse it for any merely technical cause. Courts should endeavor to do substantial,' rather than technical justice. They aim to take a broad, comprehensive and equitable view of the rights of the litigants,, and to guide them to what is, on the whole, best for them, evert.-1 hough, strictly speaking, they may surrender a right.

In 3 Waterman and Graham on New Trials, 1356, we find the following words: “Notwithstanding, then, a party may solicit the court to exercise, its discretionary power in his behalf, under circumstances entitling him to judicial aid, it wilt not, as a matter of course, grant his petition; but will first inquire whether he would be benefited by such interference. A theoretical or abstract right, merely, will not avail. The time-of judges, witnesses and juries, the delay of other important business, and the public as well as private expense, all forbid', that courts should he occupied to no tangible purpose. It must see that good will result to the party seeking its aid, or;, at least, inay result if the prayer he granted.”

In the ease before us there can be no doubt but that the appellant., Kent, is owing the appellee, in amount, about one hundred dollars. The court below, which rendered the judgment, said it had jurisdiction in the ease. This court has also held it had, and now a re-hearing is asked for, simply on the ground that the judgment was not for $104 ; it, consequently, could not have been under on the note. The judgment gendered was for $90, a clifForenee of only $8 98. By what parity of reasoning the amount was arrived at, by the ■court, we may be unable to discern, yet the amount is so trifling, and it being in favor of the appellant, were we to grant a re-hearing on these grounds, we should be encouraging, rather than discouraging, petty strifes, which can in no •sense be profitable. We think the record sufficiently clear, and explicit enough, to protect the appellant against any other suit that may be brought on the same cause of action. Whether •the judgment should have been for a few dollars, more or less, •substantial justice has been done.

But the counsel for appellants insists that he was so confident that the court below had erred in its judgment of the ease, and was so certain that this judgment would be reversed, that he did not interpose an equitable defense to the claim, which he might have availed himself of. .This, of course, cannot govern us here. If an attorney neglects to make a defense upon merits, and relies upon technicalities to gain his suit and protect his client’s interest, it is a matter between those parties. The case appears before us on the record. What might have been done and what was done are two different propositions. The presumptions are always in favor of the record. It is upon this we are trying and determining the case at bar. We ;are unable to find such error, either in the proceedings of the •court below, or the judgment of this court, as would warrant ns granting a re-hearing in the case.

Motion for a re-hearing is denied with costs.


author: "WlLSIIIRE, O. J.

text:
    The State v. Smith.

      Jurisdiction — Assaults and assaults and battery. — Under the present Constitution justices of the peace have jurisdiction in all criminal cases below the grade of felony, but that jurisdiction is not exclusively vested in justices of the peace.
    When Con current — Under the provisions of the Code of Criminal Practice, the jurisdiction may be exercised concurrently by the circuit courts, in cases of assaults and assaults and battery.

      Appeal from Benton County.

    Host. E. D. IIam, Circuit Judge.
    Montgomery, Attorney General, for appellant.
   "WlLSIIIRE, O. J.

At the September term of the Renton circuit court, 1869, Joshua Smith was tried upon an indictment for an assault, with the intent of a great bodily injury, upon the person of one "William Ramsey.

Upon the trial the jury found the defendant not guilty of the assault charged, but found him guilty of a simple assault, and asssessed his fine at the sum of ten dollars; whereupon, the court gave judgment against the defendant for that sum and costs, etc.

The defendant moved in arrest of judgement, upon the ground that the circuit court had no original jurisdiction in cases of simple assault; that exclusive original jurisdiction, in cases of simple assault, was vested,-by law, in courts of justices of the peace. The court below sustained the motion, and the State appealed to this court.

The only question presented by the transcript of the record before us is, that of the jurisdiction of courts in offenses of simple assaults. Paragraph five, of section ten, of the Criminal Code of this State, provides that “justices’ courts have 'concurrent jurisdiction with city and police courts; but exclusive of circuit courts, of prosecutions for offenses where the .punishment of a person is limited to a fine not exceeding ten 'dollars; and concurrent jurisdiction with the circuit courts in prosecutions of offenses where the punishment is limited to a fine not exceeding one hundred dollars, or imprisonment not «exceeding thirty days, or both.”

A simple assault, by our statutes, is punishable by a fine of ■•over ten dollars. Chapter 51, Gould’s Digest, page 336, provides that a simple assault, unattended with any apparent design to commit homicide or felony, shall, upon the conviction • of any person thereof, be punished b3r fine not exceeding one .hundred dollars. The punishment of simple assaults, by fine -or imprisonment, imposed bjr the chapter of Gould’s Digest •referred to, has not been reduced by any subsequent legislative «enactment.

In the case of Tucker, ex parte, 25 Ark., 567, the court held that the ehange in the jurisdiction of justices of the peace ■effected by the present Constitution, considerably enlarges the jurisdiction of justices of the peáce, “both in civil and crimi¡nal cases, extending it in the latter to all offenses less than felony. Ho change whatever in the jurisdiction of the circuit •court is directly or expressly made, but the exclusive jurisdiction given justices of the peace, in actions of replevin and of •contract, where the amount in controversy does not exceed •two hundred dollars, does, by necessary implication, so far as the change in the jurisdiction of justices of the peace extends, restrict it. But, as the criminal jurisdiction of justices of the ■peace is not declared to be exclusive, no implication that that •of the circuit court is confined to felonies is necessary to avoid .an inconsistency or repugnancy in the two provisions or to pre•vent a conflict between the jurisdiction of the circuit court .■and that of justices of the peace.”

Prior to the adoption of the present Constitution, justices of the peace had exclusive original jurisdiction in assaults and assaults and batteries; but the present constitution confers up-on justices of tlie peace jurisdiction in all criminal cases below felony, but, as was held in Tucker, ex parte, that jurisdiction is not exclusively vested in justices of the peace.

Under the provisions of tlie Code of Criminal Practice, referred to, it may be exercised concurrently by circuit courts, in cases of assaults, or assaults and battery.

The court below erred in arresting the judgment of the circuit court; the judgment is reversed, and the cause remanded, to be proceeded in according to law, and not inconsistent with this opinion.