author: Eakin, J. English, C. J'.,

text:
    Worthen, Clerk, etc., vs. Roots et al.
    1. Counts Court: Power to make allowances and issue warrants beyond appropriations.

    Since the passage of tlie act of Jiarch 18, 1879, the county court is not prohibited from allowing claims against the county, in excess of the appropriations. The law makes it the duty of the clerk to issue warrants on allowances when made. (English, C. J., dissenting as to so much of the opinion as holds that the clerk may issue warrants upon allowances not covered by appropriations, or against exhausted appropriations. )

      APPEAL from Pulaski Chancery Court.
    Hon. D. W. Carroll, Chancellor.
    Hughes, for appellant.

      Pose, contra.

   Eakin, J.

At the October term, 1879, of the Pulaski county court, in full session with the justices, a tax of five mills on the dollar, for general purposes, was levied upon the assessed value of real and personal property in the county; estimated at $6,573,650, and the proceeds from said tax were appropriated as follows:

Eor expenses of the circuit court.................... $7,000 00

For expenses of the county court.................. 6,800 00

For expenses of prisoners in jail.................... 7,000 00

For making tax and assessment books............ 1,750 00

For paying for public records........................ 300 00

For support of paupers................................. 1,000 00

For building bridges and repairing roads......... 1,250 00

For expenses of justices’ courts................. 3,000 00

For county expenses allowed by law............... 1,481 41

Total..........................................$29,581 41

Afterwards', on the fourteenth of October, the judge alone presiding, it was ordered by the court, “ that the clerk issue proper warrants on the treasurer of the county for all claims that have been allowed, or that may hereafter be allowed, in the order in which they have been allowed.”

On the seventeenth of October, Roots, and others, citizens of the county, and taxpayers, filed this bill in the Pulaski chancery court against defendant 'Worthen, the clerk; exhibiting the foregoing proceedings of the court, ’ and alleging: that, at different times, the court had made large allowances, in favor of many individuals, too numerous to be made parties, amounting in all to about $65,000; upon which, no warrants had, as yet, been drawn, and which remained unpaid. Of these, about $21,354 had been allowed prior to the eighteenth day of March, 1879.

The usual form in which those allowances had been made, prior to said date, is shown by an order exhibited for example, which merely states that the same is allowed and audited as an established claim against Pulaski county.”

The form, after said date, is shown in like manner, which is the same, followed by these words: “ and the clerk is ordei’ed to draw his warrant on the county treasurer, payable out of the appropriation to defray the legal expenses of the county.”

The amount of allowances already made, at the time of filing the bill, even those made after said date, greatly exceeded the amount of said appropriations.

They complain that the indiscriminate issue of county warrants, authorized by the order of October 14, in disregard of the objects and amounts of said appropriations, would be illegal, and injurious to the public service, and detrimental to the taxpayers. They fear the clerk will proceed to issue them, and, as the circuit court was not then in session (nor would be for some time), they pray that the defendant be restrained from issuing any warrants, on any allowances made since the eighteenth of March, 1879, exceeding in the aggregate the amounts of the said several appropriations ; and, also, from issuing any warrant on any of said funds, after said fund shall have been exhausted by prior warrants ; prays, also, for general relief.

The defendant appeared, and, without answer, or formal demurrer, the cause was submitted on the seventeenth of October. On the thirty-first, the chancellor, by a final order restrained the defendant from drawing any warrant on any fund, unless there should he a balance of said fund, duly appropriated by a proper court, consisting of a majority of the justices. Defendant appealed.

It would have been better to have required an issue of law or fact to be made before final hearing. The submission, however, may be taken as an admission by defendant, of all the matters contained in the bill and exhibits. The order of the fourteenth of October is not, upon its face, illegal. It was in conformity with the usual and long established mode of administering the county revenues. The clerk was directed to issue proper warrants on the treasurer for all claims, etc. This was, so far, right, that it requires extrinsic evidence to support the claim of illegality, on the ground of excess of warrants over the appropriations. It is not clear that a writ of certiorari could have brought to the notice of the circuit court the point made by the bill, which is not the power of the county court to direct the clerk to issue warrants in the mode prescribed; but the power of the clerk, under such order, to issue them after the appropriations may be exhausted. The remedy, if the complainants have one, is not at law, plain, adequate and complete, and the chancellor properly exercised jurisdiction in the case.

The question is rather as to the scope and meaning of the order, than as to its validity. In a normal condition of county affairs, where there was no county debt, and where the appropriations met the county expenditures, the order would be a very proper one. But it is alleged that in Pu-' laski county such a healthful normal condition does not exist; that, in truth, the allowances greatly exceed the appropriations, and that the order, properly construed, does not authorize the clerk, as a ministerial officer, to continue the issue of such warrants as the order directs, after the books of the office show that warrants, properly issued, have exhausted the appropriation. The proper construction of the order, and the powers conferred by it, are to be determined by the policy of our constitution and laws with regard to the county revenues and expenditures. If they contemplate the issue of warrants, and the use of them by citizens, in anticipation of appropriations to be made for the particular funds drawn upon, the threatened action of the clerk would be right. If they do not, the complainants have the right to require that he be restrained to the narrower construction of the order, and follow it only to the-extent of the appropriations. In short, did the constitution and laws, on the fourteenth of October, 1879, require or empower the county court to issue warrants upon allowances, judicially made, irrespective of any consideration as to whether the proper appropriations for such warrants had been exhausted by previous warrants?

Let us look to the system as it existed up to the time of the constitution of 1874. The county revenue then consisted of divers funds, raised by taxation for special purposes. These were for county purposes generally; for public buildings; for support of the poor; for bridges; for roads; and for interest and principal on the public debt. The board of supervisors, answering to the old, and present county courts, determined the amount to be raised for each purpose, which was set forth specially on the record. The clerk was required carefully to ascertain the amounts collected for each purpose, and it was forbidden to use any specific fund for any other purpose than that for which it was levied, until the purposes of the special tax had been accomplished. Gantt’s Digest, sec. 5059. It is to be observed that the amounts which might he levied for such purpose-was limited to a definite maximum per centage, as was also-the school tax for each district. (lb., 5068.) These funds were obviously appropriated as raised, as effectually as if they had been raised by a tax in solido, and then divided up and appropriated to the several objects.

With regard to allowances and warrants, it was provided that the board should “have and exercise” the power “to audit, settle and direct the payment of all just demands against the county ” (Gantt’s Digest, sec. 595, sixth clause); and it was made the duty of the clerk, whenever an order for an allowance might be entered upon the record, to issue in favor of the creditor, and upon his request, a warrant for the allowance, to be drawn upon the treasurer, and to be paid either out of the fund for county expenditures, or, as the case might be, out of any particular fund. (Ib., sec. 605.) The clerk was required further to keep a register of all warrants issued, setting forth the numbers, date, name of the payee, the account upon which it was drawn and the amount. (Ib., sec. 607.) We observe here provision for keeping the clerk thoroughly advised of the relation between the sums collected for the several funds, and the drafts made upon them; so that he might know when the funds were exhausted. Yet, nevertheless, it was made his imperative duty to continue their issue upon all allowances, whether the funds upon which the warrants were drawn might be exhausted or-not.

When warrants, thus issued, were presented to the treasurer, it was his duty to pay them at once, having funds, or forfeit four-fold the amount to the holder. (Ib., sec. 1037.) If he had no funds, he indorsed the fact upon the warrant, and it bore interest from that date at 6 per cent. (Ib., sec. 1039.) When funds came in it was made the duty of the treasurer to give notice of his readiness to redeem, which stopped the interest, and they were redeemed and paid in the order of their number and date. (Ib., secs. 1041-1042) In doing this, the treasurer was required to keep a strict register of warrants, similar in all respects to that required by the clerk. (Ib., sec. 1044.) It is manifest that the object had in view in requiring these minute and strict accounts of the amounts drawn was not that the clerk should be advised when the specific fund was exhausted, in order that he might cease to draw further.

These warrants remaining unpaid, were not however dead, meanwhile, and useless in the hands of the citizen. Irrespective of number or date they were made receivable for “ all taxes and debts accruing to the county.” (Ib., sec. 610.) There could have been but one policy in this— a wise and wholesome one. It gave the warrants a value, independent of any specific fund on hand to pay them, and encouraged the citizen to render services to the county, which were indispensable to the maintenance of the government, and which, in many cases, could not be compelled, or if compelled, would produce hardship. I have never heard that, under that system, any complaints were made of evils arising from the practice of issuing warrants upon all allowances. Great evils arose from the corruption of county officers in some cases, and from the extravagance and improvidence of boards of supervisors, in others. Allowances were made without stint, and for shocking amounts, to cover depreciated scrip. Extravagant contracts •were made, and taxes levied, for public buildings, under sec. 5060. By these malpractices, a great many of the counties became, and some still remain, hopelessly embarrassed with debt. The warrants w ere the result, and not the cause, of the evils. The load of debt and the embarrassment would have been quite the same upon the allowanees alone, without the warrants. Such was the condition of things when the constitution of 1874 was adopted.

By that constitution the board of supervisors was abolished, and the county affairs entrusted to the county court, consisting, ordinarily, of a single judge, and having “ exclusive original jurisdiction in all matters relating to county taxes, roads, bridges, ferries, paupers, etc.; * * * the disbursement of money for county purposes, and in every other case that may be necessary to the internal improvement and local concerns of the respective counties.” But, it was provided that the justices of the peace of each county should sit with and assist the county judge “in making appropriations for the expenses of the county, in the manner to be prescribed by law,” or, in the absence of the county judge, should themselves, or a majority of them, constitute a court for the purpose. (See Art. VII, sections 28, 30.) Counties were prohibited from levying taxes exceeding one-half of one per cent, for all purposes, save for the payment of debts existing at the time of the adoption of the constitution, for which an additional half per cent, might be levied (Art. XVI, section 9); and it was provided (sec. 10) that “ the taxes of counties, towns and cities shall only be payable in lawful currency of the United States, or the orders or warrants of said counties, towns and cities respectively.” Counties were further prohibited (Art. XVI, sec. 1) from issuing any interest-bearing evidence of indebtedness.

By sec. 1, of the Schedule to the Constitution, all existing laws not in conflict, or inconsistent with this constitution, were continued in force.

The important change effected by these provisions, was to take the administration of county affairs out of the hands of boards of supervisors, too many of which — it is now public history — had recklessly ruined their county finances; .and commit so much of it as touched the revenue to a more conservative and reliable body, to be composed of the justices of the peace with the county judge. These were simply to levy the taxes, and make appropriations for county expenses. It was, in effect, the same duty which had been imposed upon the old supervisors, who had levied and raised specific funds by taxation- — instead of raising a sum in solido, and apportioning it to the different funds by appropriation. The effect was the same. It was only a change of tribunal. There was no longer any use in presenting warrants to the treasurer for the purpose of interest, but in other respects the laws, as to the issuance of warrants, remained unimpaired, and it was expressly provided that they should always be receivable for county taxes. No payment of the warrant could be made until there might be an appropriation to the fund, but it remained, nevertheless, the duty of the clerk to draw the warrant upon the proper fund, and that warrant was, for wise purposes of policy, protected in its value by the aegis of the constitution — making it receivable for taxes. Certainly there is nothing in this constitution to forbid the clerk to issue the warrants threatened.

The first general assembly under the new constitution, by act of February 5, 1875 (Pamphlet Acts, first session, p. 143, prescribes the time in each county for the meeting of the full court of justices, and the mode of procuring their attendance; and directed that, at the time of levying the taxes, they should make an appropriation to defray the county expenditures for one year; the amount to be specified in dollars and cents, and not to exceed three-fourths of the county taxes levied. The same act defined the jurisdiction of the county court, expressing, amongst other things, that it extended “to audit, settle and direct the payment of all demands against the county.” IJpon this point, the act was but a declaration of the existing law, under which the court was not confined, in directing the payment, to cases where there was sufficient money left in the particular fund to meet the warrant. If it had been the intention or wish of the legislature to restrict the issuance of warrants to the case of unexhausted funds, this would have been the place to declare it. Its failure to do so, is very significant that the legislature did not consider such warrants an evil, and contemplated the continuance of the practice under the former laws, as adopted and brought under the new constitution by the schedule.

The same general assembly, at its second session [Pamphlet Acts, second session, p. 51), regulated and restricted the county court in the manner and extent of making alloioances; amongst other things, providing by section 3, “That no county court, or agent of any county, shall hereafter make any contract or allowance in excess of the appropriation made for the current year, with a proviso that the clerks and sheriffs might proceed to discharge all legal duties necessary in the administration of public justice, etc, and that such expenses should be paid out of the next appropriation. By the same act, the county courts were enabled to appropriate the full amount of the taxes levied for any year. There is no express repeal of any former act, nor is this act inconsistent with the former act directing the clerk to issue warrants on the allowances when made. Evidently the evil sought to be corrected was the old extravagance and improvidence in making contracts, and carelessness in making allowances, which lay at the root of all the troubles. Obviously, too,- the act does not affect the jurisdiction of the court over the subject matter, but only makes that erroneous which before was not so.

In this connection it is important to notice an act of the fourteenth of December, 1875, declaring and enforcing the constitutional policy of making warrants receivable for taxes. It declares, amongst other things, that all county warrants and county scrip shall be receivable for any taxes for county purposes, except for interest on the public debt and for the sinking fund; and this without regard to the time or date of issuance of said warrants, except that new warrants or scrip shall not be receivable for old debts existing at the time of the adoption of the constitution. Stringent provisions are made to compel collectors and others to comply with the act. (See Pamphlet Acts of 1875, second session, p. 151.) Further, in passing, it is germain to the subject to notice the act of March 8, 1877 (Pamphlet Acts, p. 42), making jurors’ certificates receivable for taxes, in all respects as county warrants, and directing that they shall all be within the limit of the appropriations, as specified in the above-mentioned act of December 7, 1875.

A review of all this legislation antexúor and subsequent to the constitution of 1874, together with that constitution itself, reveals a settled policy, almost in terms enjoined by the constitution itself — and persisted in until December 7, 1875 — of supporting the credit of the counties, and encoui’aging the citizens to render their services with alacrity by making claims agaixxst the county a set-off for taxes. This could best be effected by authorizing the coux’t to audit the claims and issue warraxxts — could indeed be effected conveniently in no other way, inasmuch as the collector could not know what claims against the county were valid until allowed; nor could he know anything of allowances without examination of the records. It is a very remarkable thing that the right to use county warrants in payment of taxes should be crystalized into a constitutional provision, and indicates a strong sense in the convention of the evil and danger to the very framework of our government (which is built upon counties) of allowing the county debts to become utterly valueless in the hands of the citizens — as well as the hardship to the citizen of compelling services, which would be, to all practical intents, gratuitous.

The third section of the act of December 17, 1875, made the first attempt at a deviation from this policy, in prohibiting any county court or county agent from making thereafter any contract or allowance in excess of the appropriation for the current year. So far as contracts are concerned, the law is in harmony with the intent of the constitution in providing that the appropriations should be made by a court of justices. One of the crying evils of the land had been extravagant jobbing contracts made by county courts, or authorized agents, by which insupportable loads of debt bad been imposed, and in many eases still remain, pressing upon the people. To prohibit such was wise and proper. But the ordinary expenses of the county government — those essential to its maintenance and absolutely required by law — stand upon a different footing altogether. These things should be done, as imperatively as the others should be strictly left undone; and to place the latter class of expenses on the footing of contracts was, to say the least of it, a matter, under the constitution, of questionable power.

The law, it is true, recognizes the rights of clerks and sheriffs alone to receive compensation for some kinds of services, required by their duties, and directs that they shall be paid out of the next appropriation. But even as to these favored officers, they were required to wait in patience for an uncertain event, and were meanwhile unable to make that practical use of their just claims which the constitution contemplated. The succeeding legislature made a partial attempt to supply the defects of the act by providing for jurors’ certificates, and making them receivable for taxes as warrants would be.

Such being the condition of the law, the act of March 18, 1879, was passed, which we have now to construe. The first section repeals many of the foregoing acts, for the purpose, apparently, of clearing the way for a complete and well defined policy. Amongst the repealed acts is that part of the act of December 7,1875, which limited the power of the court to make contracts or allowances beyond appropriations. The second section prescribes the time for the meeting of the full county court to levy the taxes and make the appropriations. The succeeding sections, to section 5, concern only the organization of the court. ■

The sixth section, which consists of many clauses, provides for reports on the affairs of the county, to be furnished, respectively, by the clerk, sheriff, treasurer and county judge, and for the reference of these reports, if desirable, to committees, after which the court is directed to make appropriations for the current year, in the following order:

1. To defray expenses of courts of record and magistrates’ courts, designating the sum for each.

2. For expenses of prisoners in jail accused or convicted of crime.

3. For expenses of making assessment and tax books, and collecting taxes.

4. Eor expenses of public records of the county or district.

5. Eor expenses of paupers.

6. Expenses of building and repairing public roads and bridges, and taking care of public property; and—

7. Eor such other expenses of county government as are allowed by the laws of the state.

Then the tax shall be levied; and, by section 7, the court is required to specify in dollars and cents the amount of appropriation for each purpose, restricting the whole aggregate amount of the taxes levied for the year.

Section 8 requires the clerk to open an account with each appropriation, debiting it with the full amount, and. crediting it from time to time with allowances made upon it by the court, when made. Then follows this provision of—

Sec. 9. “No county court or agent of any county shall hereafter make any contract cn behalf of the county unless an appropriation has been previously made therefor, and is wholly or in part unexpended.”

"What is noteworthy in this section is, that it restores the policy of the act of December 7, 1875, as to contracts, but designedly omits any restrictions upon allowances. The nature and reason of' this distinction, and, indeed, the full scope of the operation of the constitution itself, will become apparent from a consideration of the various purposes for which the tax is to be levied. Reverting to them, it will be seen that the first four are of an indispensable nature, essential to the support of the government. They are for services that must be performed, or the business of the counties must stop. The last three are not supposed to be imposed by necessity, but are matters of contract. It is well that appropriations be made for all purposes, but of great consequence that in the matter of contracts the expenses of the counties should be limited to the amounts appropriated. This is impossible in cases of positive service required by law, and expenses incident to them; and in accordance with this view the legislature did not reimpose upon the county court any disability as to allowances. Indeed, it is plain that any other view of the case would place the county in the attitude of dealing oppressively and unjustly with those citizens who render her involuntary or indispensable services.

Section 10 provides that the warrants drawn by the clerk shall specify the fund, or appropriation, upon which the same are respectively drawn; and that “when so lawfully drawn and issued,” said warrants shall be receivable for all taxes lawfully levied by the county court, or for licenses, or debts due the county. There is an express proviso in the next section, with regard to receiving those warrants for taxes; that the provisions and intent of the act of fourteenth December, 1875, shall be observed, which, it will be remembered, made them receivable without regard to date for all county taxes, except for interest or sinking fund.

The twelfth section requires that every allowance made shall set forth the appropriation out of which the same is to be paid. It had always been the practice in the state to issue warrants upon funds exhausted, as if they were in the treasury, although the particular fund was required to be specified. In the administration of the state revenue it is not done; but that results from an express statutory provision. There is nothing in the twelfth section to restrain the court from making allowances upon exhausted funds, in the face of the marked removal of that restraint in another sectioxx.

The irresistible conclusion, upoxx a review of all the legislation, is, that the act of March 18,1879, is the result of an effort (perhaps imperfectly accomplished) to return to the true policy indicated by the constitution of 1874 : To require all appropriations to be made and taxes to be levied by a full court of justices, and that no money should be paid out of the treasury except on appropriation; and to restrain the county court, or its agents, from making any contracts until money may be appropriated to meet them. This gives effect to the policy of requiring the justices, as a conservative body, to act with the judge.

Hand in hand with this, is another policy, quite as plainly indicated in the constitution. It is, that every citizen, having an ascertained debt against the county (or a warrant as it is termed), shall have the privilege of paying it in for taxes. No discriminations are made in favor of any persons who, standing on the same rights, may have been more industrious-or fortunate than others, in obtaining these evidences of their claims. It would be, as to theáte creditors, the same, in effect, to refuse to allow their claims, and deny them warrants, as it would be to refuse to receive their warrants, when issued, and either would be repugnant, not only to the spirit of the constitution, but to that of all our legislation for a series of years.

We search in vain for any prohibition, in the act of 1879, against allowing claims by the county court beyond the appropriations. A large class of the claims ought to be allowed, and with regard to those depending on contracts made in excess of appropriations, if it be error to allow them, any citizen may appeal and correct the error. There is room for the operation of the whole constitution in all its aspects.

The law makes it the duty of the clerk to issue warrants on allowances wlien made, and we think the chancellor in error in making the injunction perpetual.

Let the decree be reversed, the injunction dissolved, and the bill dismissed.

English, C. J'.,

disscidiug. "With all due respect for the judgment of my brother judges, I dissent from so much of their opinionin this case as holds that the clerk may issue warrants upon allowances not covered by appropriations, or against exhausted appropriations. I think this is prohibited by the spirit and intention of the act of March 38, 3879, as indicated in several of its provisions, though not directly expressed.


source: Caselaw Access Project

author: English, C. J.

license: Public Domain

text:
    State vs. Lindsay.
    1. Gaming Table: Cities can not license.

      A city ordinance licensing tlie exhibiting of a gaming tabic or gambling device, within the limits of the city, and a license granted under it, are null and void, and afford no protection against an indictment for the offense.
    APPEAL from Jefferson Circuit Court.
    Hon. J. A. Williams, Circuit Judge.

      Henderson, Attorney Gfcneral, for the State.
   English, C. J.

The indictment in this case was found at the May term, 387(5, of the circuit court of Jefferson, county. It charged, in substance, that James Lindsey did, on the sixth day of May, 1876, in said county, set up and exhibit a certain gaming bank, or gambling device, adapted, devised or designed for the purpose of playing a game of chance, at which money or property might be lost or won, commonly called keno.

At the May term, 1879, the defendant filed a special plea, in which he admitted that ho did, at the time alleged in the indictment, set np and exhibit, within the corporate limits of the city of Piue Bluff, in said county, a gambling device called keno, as alleged in the indictment, but justifying, under a license issued to him by the council of the city.

It appears from the plea that, on the fifth of May, 1876, the council of'the city of Pine Bluff passed an ordinance providing that, if any person should exhibit any gaming table, or gambling device, in said city, without having obtained a license therefor from said city, he should he guilty of a misdemeanor, and for such offense fined not less than $100, nor more than $300.

The second section of the ordinance authorizes the city council to grant a license to any person petitioning therefor, for six months, on payment of $500, to exhibit a gambling device, or gaming table, within the corporate limits of the city; the license, on payment of the money to the city treasurer, to be signed by the mayor and attested by the recorder.

The plea alleges that defendant procured a license, under the provisions of the ordinance, to exhibit his gambling device, called keno, etc., of which he makes profert, etc.

The state entered a general demurrer to the plea. The court overruled the demurrer,■ and the state resting, final judgment was rendered, discharging defendant, and the state appealed.

The defendant should have pleaded'not guilty, and offered iii evidence the ordinance of the city, and the license relied on for defense, and the special plea might have been stricken out on motion, and defendant required to plead not guilty. (See Dig., secs. 1845-1850.) But, as the state thought proper to meet the plea by demurrer, which was an admission of the facts pleaded, we will inquire whether the facts constituted a valid defense to the indictment.

By a general statute, nearly as old as the state, it is made a criminal offense, punishable by fine, etc., for any person to set up, keep or exhibit, any gaming table or gambling device, etc., etc. Gantt’s Dig., sec. 1557, etc.

This statute covered every foot of territory within the limits of the state, over which jurisdiction is not conceded to the United States.

And it has been decided that the gambling device commonly called keno is within the purview of this statute. Trimble v. State, 27 Ark., 355; Portis v. State, ib., 360.

By section 12 of the act of March 9, 1875, for the organization and government of municipal corporations (Acts of 1874-5, p. 8), it is enacted that such corporations shall have power “to license, regulate, tax or suppress” (among numerous other things), “tables or instruments used for gaming,” etc.

Under the authority so seemingly conferred, the council of Pine Bluff thought proper to pass an ordinance to license the exhibition of gaming tables, or gambling devices, within the corporate limits of the city, and under such ordinance appellee, for the sum of $500, obtained a license to exhibit his gambling device called keno, for the period of six months, for which he was indicted by the state, regardless of the license.

By section 4, Article XII, of the constitution, it is provided that: “No municipal corporation shall be authorized to pass any laws contrary to the general laws of the state,” etc.

It follows that the ordinance and the license are null and void, and furnish appellee no protection against the indictment.

If appellee was otherwise disposed to be a law-abiding man, it is a misfortune that he was induced to part with his money for a worthless license, and deluded into the commission of a crime against a general law of the state. Whether he can recover back from the city the money paid for the license, is not a question before us now.

Reversed, and remanded for further proceedings.


text:
    Portis vs. Fall et al.
    1. Injunction : Aone against criminal proceedings.

      A court of equity will not exercise jurisdiction by way of injunction to stay proceedings in any criminal matters, or in any case not strictly of a civil nature.
    APPEAL from Jefferson Circuit Court in Chancery.
    Hon. J. A. Williams, Circuit Judge.

      N. T. White, for appellant.
   English, C. J.

William N. Portis was arrested on warrants issued by Benjamin E. Eall, a justice of the peace of Jefferson county, and other magistrates, on charges of violating the law of the state by setting up and exhibiting a gambling device called keno, within the limits of Pine Bluff.

In October, 1877, he filed a bill on the chancery side of the circuit court of Jefferson county, praying an injunction against the prosecutions, and a temporary injunction was granted.

Afterwards a demurrer was sustained to the bill; the injunction dissolved; the bill, dismissed for want of equity, and Portis appealed.

A court of equity will not exercise jurisdiction by way of injunction to stay proceedings in any criminal matters, or in any case not strictly of a civil nature. 2 Story Equity Jurisprudence (12 Ed.), sec. 893; Bispham’s Prin. Equity, sec. 424.

Affirmed.


author: English, 0. J.

text:
    State of Arkansas vs. Ross.
    1. Practice in Supreme Court' : Verdict in criminal ease erroneously set aside, etc.

    "When there is a valid trial and verdict against a defendant in a criminal case, and the verdict is set aside for an erroneous reason, and there is no final judgment, the supreme court will not send a mandate to the court' below to sentence the prisoner upon the verdict, where there were other causes assigned in the motion for new trial for which the court may have set aside the verdict.
    2. Criminal Law : Conviction of less offense, acquittal of higher. Where a defendant is indicted for murder, and a verdict against him for a
    lower offense, the verdict is an acquittal of any higher offense, and he can not, in a new trial, be tried for the higher offense.
    ERROR to Bilee Circuit Court.
    ITon. A. B. Williams, Special Judge.

      Attorney General Henderson, for plaintiff.
   English, 0. J.

At a term of the circuit court of Clark county, commenced on the seventh of April, 1879, being the tenth Monday after the last Monday of January of that year, Robert C. Ross was indicted for murdering Andrew Groodwin. On his application, the venue was changed to the circuit court of Pike county.

He was tried at a term of the latter court, commencing on the thirteenth of October, 1879, and the .jury found him guilty of murder in the second degree, and fixed his punishment at imprisonment in the penitentiary for eleven years.

It seems that the defendant filed a motion for a new trial, assigning thirteen grounds therefor, which was heard by the court, and a record entry shows that it was disposed of as follows:

Said motion for a new trial containing, among other grounds, one that there is no authority under the constitution and laws of the state to hold the present term of the circuit court of Pike county at the present time, and that no judgment could be rendered upon said verdict, whereupon the court, after hearing the argument of counsel, and being advised as to the law, it is the opinion of the court that said motion for a new trial be granted upon said cause as above stated, which is the third ground for a new trial; it is, therefore, considered, ordered and adjudged by the court, that a new trial be granted, and that the verdict of the jury be set aside; to which ruling of the court the state, by her attorney, excepts, and defendant is remanded in custody of the sheriff of Pike county.”

Looking at the motion for a new trial (though there is no bill of exceptions making it part of the record), we find the third cause assigned to be as follows:

“ That there is no authority under the constitution and laws of said state, etc., to hold the present term of the circuit court of Pike county at the present time, and that no judgment could be rendered upon said verdict, because the same would be coram nonjudice, and, consequently, null and void.”

There were other grounds of the motion for a new trial, relating to the instructions of the court, etc., the sufficiency of the evidence to sustain the verdict, etc.

The attorney general has caused a transcript of the record in the cause to be brought into this court on writ of error, and submits that we should reverse the decision of the court below granting a new trial, and direct the court to sentence the prisoner upon the verdict.

The term of the circuit court of Pike county at which the prisoner was tried, was held under the act of March 11, 1879,' and in Haney v. State, ante, we held the act valid, though on its face there was a clerical misprision as to the times of holding the terms of the circuit court of Sevier county, manifest upon the face of the act.

There was a valid trial and verdict against defendant in error, for murder in the second degree, which verdict the court, in fact, set aside, but for an erroneous reason; and there was no final judgment.

W’e decline to send a mandate to the court below directing it to sentence the prisoner upon the verdict so set aside, because we can not undertake to say. that if the court had not fallen into the error of setting aside the verdict on the ground stated in the record entry, it might not have granted a new trial on some of the other grounds assigned in the motion.

There being no final judgment to which a writ of error would lie, the case here must be dismissed, and the prisoner will stand for trial again, as if charged with murder in the second degree, having, in effect, been acquitted of murder in the first degree, by the verdict set aside by the court; and the judgment of dismissal, accompanied by this opinion, will be certified to the court below, that it may proceed with the cause.


author: Harrison, J.

text:
    McCauley & Co. vs. Six et al.
    1. Practice in Equity : Parties, where title to land involved.

    Upon the death of a defendant in a suit in equity for land, his heirs must be made parties, before the question of title can be determined. If this is not done, the complaint should be dismissed without prejudice.
    APPEAL from Independence Circuit Court in Chancery.
    Hon'. 'William Byers, Circuit Judge.

      Coody, for appellant.
   Harrison, J.

This was a complaint in equity filed by the appellants against Marcus D. L. Six and Robert Rushing, the substance of which was, that the defendant, Six, on the fifth day of March, 1874, executed to the plaintiffs a mortgage on the southwest quarter of section 25, in township 12, north, of range 6, west, to secure the payment of his note to them of that elate, for $600, payable nine months thereafter, and bearing after maturity ten per cent, interest, which, then past due, was unpaid; that Six acquired title to the land by a donation deed from the auditor, the fifth day of November, 1872, and he had complied with the condition upon which the grant was made, by clearing and fencing five acres, and putting the same in readiness for cultivation within eighteen months from the date of the deed; and he filed a certificate of a justice of the peace of a township adjoining that in which the land was situated, of his having made the improvement, with the auditor, on the twelfth day of March, 1874; that after the execution of the deed to Six, the defendant, Rushing, falsely claiming to have been at the time of the donation the owner of an improvement thereon, made application to the auditor to purchase the land, as again forfeited to the state, by Six failing to pay him double the value of his improvement, which the auditor allowed him to do, and executed to him also, a deed for the land; and that Rushing had since entered upon the land and dispossessed Six, and was then the occupant thereof. Prayer that the deed to Rushing be set aside and cancelled, and for a foreclosure of the mortgage and a sale of the land.

Six made no defense. Rushing answered the complaint, lie was, he said, at the time of the donation to Six, the owner of an improvement on the land, and that Six did not, within three months from the date of his deed, pay him double the value thereof; and that by failing to do so, he forfeited to the state all his right to the land; that after such forfeiture, he, said Rushing, filed with the auditor his affidavit, stating the fact that he owned an improvement on the land at the time it was donated to Six, and that Six had not paid or tendered him double the value of the same, and applied to purchase the land; and having paid to the state all the arrearages of taxes charged thereon, the auditor, on the twenty-fourth day of September, 1874, sold the land to him, and executed to him a deed therefor. He admitted, that he had entered into possession and was then the occupant of the land, and denied that Six had any title or valid claim to it.

After having answered, Rushing died.; and on application of the plaintiffs the cause was revived against Enoch D. Rushing, his administrator; but his heirs were not made parties.

The cause was heard upon the pleadings, as stated, and depositions in the case. The court dismissed the complaint.

No statement of the evidence is necessary. As the heirs of Rushing were not made parties, there could be no determination of the question of title; but the complaint should not have been dismissed absolutely, but without prejudice. -

The decree is reversed, and the cause remanded, with instruction to permit the plaintiffs to make the heirs of Rushing defendants, if they should elect to do so; if they do not, to dismiss the complaint without prejudice.


author: 'Harrison, J.

text:
    DeBois vs. The State.
    1. Liquor: Sale of, near Judson University, can not be licensed..

    The.sale of liquors within two miles of Judson University, in White county, is regulated entirely by tlie act of twenty-seventh February, 1875, entitled ‘-An act to prevent the sale of alcoholic spirits or vinous liquors within two miles of Judson University, White county;” and the county court can not license one to sell within that distance of the university.
    APPEAL from White Circuit Court.
    Hon. J. N. Cypert, Circuit Judge.

      Ooody for appellant..

      Henderson, Attorney General, contra.

   'Harrison, J.

J. D. DeBois was indicted, with C. L. McCauley, in the "White circuit court, for selling liquor without license.

The indictment charged that they, on the fifteenth day of April, 1879, sold one quart of whisky to H. W. Shepard, without having procured a license to sell liquors.

DeBois was separately tried, by consent, by the court, upon an agreed statement of facts; and he was convicted and fined two hundred dollars.

He moved for a new trial, on the ground that the verdict was against the evidence; his motion was overruled, and he appealed.

By the agreement, the sale of the whisky by the defendant, and that he had no license, was admitted by him; ar? d it was admitted by the state, that the sale was upon the prescription of a physician, and for a medical purpose only, and that it was within two miles of the site of Judson University, in White county.

The act of February 27, 1875, entitled “An act to prevent the sale of alcoholic spirits, or vinous liquor, within a distance of two miles of the site of Judson University, White county,” prohibits the sale of alcoholic spirits and vinous liquors within two miles of the said university, except by a person exclusively engaged in the business of a druggist, and for sacramental or chemical purposes, or for medicinal purposes upon the prescription of a regular practitioner or graduate of medicine; for a violation of which act the offender is subject to a fine'of not less than twenty-five, nor more than one hundred dollars.

The act of March 8, 1879, expressly declares, that it shall not repeal any special act regulating the sale of ardent, vinous or fermented liquors in any particular locality.

It is therefore clear, that it was not the intention of the legislature, that the county court might grant a license to sell within two miles of the university, and that the sale of liquors within that distance, is regulated entirely by the act of February 27, 1875 ; and although upon the evidence, it not beiiig shown he was a druggist, the defendant, if indicted for it, might have been convicted for a violation of that act, he could not be upon the present indictment, which is under the act of March 8, 1879, and for a different offense.

A new trial should have been granted.

The judgment is reversed and the cause remanded.


author: IIasrison, J.

text:
    Evans & Shinn vs. Rudy.
    1. Practice in Supreme Court: Instructions.

    The supreme court will not reverse for the refusal of the circuit court to give a proper instruction, if others, substantially the same, and equally favorable to the party, are given.
    2. Eerrymen: Liability of.

    When a ferryman receives property for transportation, and has the exclusive custody of it, he is held to the strict liability of a common carrier. But if the owner retains control of the property himself, and does not surrender the charge of it to the ferryman, such strict liability does not attach, and he is only responsible for actual negligence; and if the owner, by his own negligence, has contributed to the loss, which otherwise would not have happened, the ferryman is only liable when the direct cause of the loss is his omission, after becoming aware of the owner’s negligence, to use a proper degree of care to avoid the consequences of such negligence.
    3. Same : Measure of damages against.

    The measure of damages for property lost by the fault of a ferryman in its transportation, is the value of the property, together with compensation for the actual expenses, and loss of time, caused by the detention on account of the accident.

      4. Practice in Circuit Court ; Admitting testimony irregularly.

    It. is within tho discretion of the circuit court to allow a plaintiff to introduce further evidence in chief, in support of his action, after the defendant has closed his testimony. And, unless the discretion is abused, it is not error.
    5. 'Motion eor Continuance : Must be in bill of exceptions.

      A motion for continuance, not contained in the bill of exceptions, is no part of the record in tho supreme court.
    APPEAL from Sebastian Circuit Court.
    lion. James Brizzolari, Special Judge.

      Duval Cravens, for appellants.

      San dells, contra.

   IIasrison, J.

This was an action by the appellee against the appellants, who were proprietors of a ferry on the Arkansas river, at Fort Smith, for damage suffered from the negligence of the defendants in the transportation of the plaintiff’s property.

The defendants denied that there was any negligence on their part, and averred, that the damage was occasioned by the negligence of the plaintiff’s agent in charge of the property.

The plaintiff had a verdict for fifty dollars, and the defendants moved for a new trial, which was refused.

The plaintiff’s wagon, drawn by two mules, and driven by, and, as the evidence tended to show, in charge of the plaintiff’s wife, avas, about night,.taken on board the defendants’ steam ferryboat, at Fort Smith, for transportation to the other side of the river.

There Avere in the wagon, besides the plaintiff’s wife, his seven children — and divers goods belonging to him.

• A young man on horseback, and two other Avagons belonging to other persons, were in company, and went on hoard at the same time, and the young man rendered some assistance in getting the plaintiff’s team and wagon on the boat.

The plaintiff’s wagon was driven on last, and was stopped in the gangway between the two gates of the boat, somewhat in the rear of the others, in front of the furnace, and the end of it, four to six feet from the gate at which they entered, and one of the hind wheels was chocked, by an employé on the boat, with a stick of whortleberry wood, used for that purpose. The gate was then closed and fastened by raising the apron, which was done by a chain and an iron weight, — one of the defendants’ witnesses said of 100, and another of 140 pounds,— at one end, and by tying with a grass rope, three-fourths of an inch in diameter, to the main stanchion, 'at the other.

According to witnesses for the defendants, the mules were wild and unruly, and did not go on the boat readily, and the captain of the boat, after they were got on, told one of the men along with the wagon, and who seemed to have charge of the plaintiff’s property, to unhitch the mules and take the plaintiff’s wife and children out of the wagon— that the fire, when the doors of the furnace were opened t would frighten the mules — apprising him of the danger of leaving so wild a team hitched to the wagon while crossing the river; hut the man would not unhitch them, saying that he could hold them, and there was no danger — and that the plaintiff’s wife said she would stay in the wagon, and she and the children did so.

Witnesses for the plaintiff testified directly contrary. The mules, they said, were gentle and easily managed; that they were driven on the boat without difficulty or trouble; and that no such direction was given by the captain or any one.

After the boat started, and had got some distance from the shore, the mules became frightened — witnesses for the plaintiff said, by sparks from the chimney or smoke-stack, falling upon and burning them; witnesses for the defendants said by the glare of the fire upon the opening of the furnace doors; and, in their fright, backed the wagon with such force against the gate as to break the chain and rope, and the wagon and mules, and the persons in the wagon, were precipitated into the river, and some of the goods were lost.

The chimney or smoke-stack had no spark-catcher.

Evidence was produced as to the value of the goods lost and the plaintiff’s expenses in recovering and taking care of the other property.

Witnesses for the defendants testified that the ferryboat was in good order; was well suited and adapted to the business; had an efficient captain and crew, and was carefully and prudently managed; that no spark-catcher was necessary, and one could not be used, with wood'for fuel; and that the fastenings of the gates were as strong and secure as were usually found on ferryboats.

The defendants asked the court to instruct the jury; that, “If you believe from the evidence that the ferryboat was in good order, suitable for the purpose for which she was used; was manned by a prudent and careful captain and crew ; that the gates were securely fastened ; that the captain warned the person in charge of the wagon of the danger of the mules becoming frightened while crossing the river, and directed him to unhitch them, and requested the plaintiff’s wife to get out of the wagon and take her children out; but the person in charge of the wagon refused to unhitch the mules, and asserting his ability to manage them, retained control of them; and the plaintiff’s wife remained in the wagon with her children; that there was no negligence on the part of the captain or crew; and that the accident would not have occurred if the captain’s order to unhitch the mules had been obeyed ; the defendants were not liable, and you should find for the defendants.”

The court refused to give the instruction, and the defendants excepted.

We do not perceive any objection to this instruction, but the error in refusing to give it was corrected by the following — substantially the same, if not more favorable to the defendants, which the court gave with others on its own motion:

“ 7. If it appeared from the evidence that the plaintiff, by any willful act done, or omitted to be done, directly contributed to the injury complained of, you should find for,the defendants.”

Of the others given by the court on its own motion, the defendants excepted to the following:

“ 2. Ferrymen are common carriers, and as such are insurers of all things committed to and received by them for transportation, against all harm or damage, except such as may be occasioned by the act of God, the public enemy, or the willful negligence or default of the party injured.

“ 6. Whether proper appliances and means were used, or the ferryboat skillfully manned and managed, is a question of fact for the jury; and if you find from the evidence, that such necessary and proper appliances and means were used, and the boat skillfully and properly manned and managed; and that the defendants exercised extraordinary care in the use of such appliances and means, and in the skillful management of the boat, you will find for the defendant; but if you find that such appliances and means were not used — that the boat was not properly manned, or skillfully managed, or the defendants did not exercise extraordinary care in using such appliances and means, or in the skillful management of the boat — you will find for the plaintiff.

“ 8. If, for want of a spark-catcher, sparks from the chimney or smoke-stack fell upon and burnt the mules, by which they became frightened, and, by backing, precipitated the wagon into the river, such fact is to be considered by you, as evidence tending to show negligence on the part of the defendants.

“ 9. If the ferryboat was in good condition and repair, and suitable for the business in which she was employed, and was manned with a sufficient number of hands, and all proper appliances and means were in use at the time, and due care and caution were used in the transportation of the plaintiff’s property, and the falling of the mules and wagon into the river was occasioned by the neglect of the person in charge, to obey the order of the captain to unhitch the mules, and without fault on the part of the defendants, their agents or servants — these facts may be taken in consideration iu passing upon the question of negligence on the part of the plaintiff.

“ 10. If the plaintiff’s wife, or other person in charge of the wagon and team, retained on the boat exclusive control thereof, and the defendant assumed no control of the same, and the precipitation of the "wagon and team into the river occurred without negligence on the part of the person in charge of the boat, the defendants are not chargeable for the loss or damage, as a common carrier or as an insurer; and are only answerable for actual negligence. And if the loss was occasioned by the willful wrong or negligence of the plaintiff, and would not have occurred but for it, the plaintiff is not entitled to recover, unless the direct cause of the loss was the omission of the defendants, after becoming aware of the plaintiff’s negligence, to use proper care to avoid the consequences of such negligence.

“12. If you find for the plaintiff, you will assess his damages at such sum as is equal to the value of the property lost, together with compensation for the actual expenses and loss of time caused by the detention on account of the accident.”

That ferrymen, when they receive property for transportation and have the exclusive custody of it, are held to the strict liability of common carriers, is too well settled to be questioned. But it is also well settled, that if the owner retains control of the property himself and does not surrender the charge of it to the ferryman, such strict liability does not attach, and he is only responsible for actual negligence; and if the owner, by his own negligence, has contributed to the loss, which otherwise would not have happened, he is only liable, when the direct cause of the loss is his omission, after becoming aware of the owner’s negligence, to use a proper degree of care to avoid the consequences of such negligence. Harvey v. Rose, 26 Ark., 3, and, the authorities there cited; Wyckoff v. Queen’s County Ferry Co., 52 N. Y., 32; Whar on Neg., 326, 335, 706-8; Davies v. Mann, 10 M. & W., 445.

Whether the property in this case was intrusted to the exclusive custody of the defendants; whether the plaintiff, by the negligence of bis agent, so contributed to the loss, that but for it the loss would Dot have occurred; and whether the direct cause was the omission of the defendants, after having become aware of such negligence, to take proper means to prevent the consequences of it— were questions raised by the evidence; and the instructions in respect to the matter of negligence properly presented them for the consideration of the jury, and were unobjectionable. The last, related to the measure of damages, and was also without objection. The plaintiff was entitled to recover, if at all, for whatever damage was the natural and proximate consequence of the accident. 2 Green, on Ev., 268, a; Sedg. on Dam., 66.

An exception was raised by the defendants to the plaintiffs beiug permitted, after the defendants had closed their evidence, to introduce further evidence in support of the action, though not rebutting that for the defense.

To suffer the plaintiffs to do so, was within the discretion of the court, and can not, when there is no abuse of discretion — and none is shown here — be assigned as an error. Gantt’s Digest, section 4668.

Another ground of the motion for a new trial was the refusal of the court to postpone the trial, upon the application of the defendants, for the want of the testimony of absent witnesses. The bill of exceptions shows that an exception was taken to the ruling of the court upon the defendant’s motion for the continuance, but the motion is not contained in the bill of exceptions, and is not part of the record before us.

Finding no error, the judgment is affirmed.


text:
    Sisk vs. Almon et al.
    1. Notice os'Title : Possession.

    Actual possession of land at the time of another’s purchase is sufficient to put him on inquiry of the possessor’s title.
    2. Decree: Must be only for parties to suit.

      A court of equity can not render a decree in favor of persons not parties in the cause.
    3. Parties: Heirs, Administrator.

    The administrator or executor is entitled to the real estate of the deceased for the payment of his debts; but in suits in which he claims the possession, when the title is in question, the heirs are necessary parties.
    APPEAL from Mississippi Circuit Court in Chancery.
    Hon. L. L. Mack, Circuit Judge.

      Jjyles for appellant.
   Harrison, J.

The appellant brought an action of ejectment against James Almon, for the north part of the northwest quarter of section eight, in township fifteen, north, of range eleven, east, to which he claimed title under a deed of conveyance, executed on the fifteenth day of December, 1875, from T. J. Richardson and George W. Richardson, who purchased the same as swamp laud from the state, and on the twelfth day of April, 1861, received a deed thereto from the governor.

W. L. Eields and IV. H. Pittman, administrators of Henry H. Moody, were, on their application, made parties, and filed an answer.

They admitted the conveyance from T. J. Richardson and George "W. Richardson to the plaintiff, and that T. J. Richardson and George W. Richardson had received a deed to the land from the governor; but they averred that Turner J. Richardson, the father of T. J. Richardson and Geox’ge "W\ Richardson, held, oxx the fifth day of July, 1859, a patent cex’tificate for the land in coxxtroversy, and the northeast fractional quarter of section five, in the same township; axxd that he, on that day, sold, and by warranty deed coixveyed, that in controversy, to John Bx’yaxxs, who, immediately upon his purchase, entered into possession and actual occupancy of it, and continued ixx possession and actual occupancy from his purchase until the thirteenth day of June, 1871, when he sold, and by warranty deed conveyed it, to Henry H. Moody, their hxtestate, who entered into possession, axxd was ixx the actual occupancy thereof until his death; and that Almon, at the commencement of the action, occupied the land as the tenant of Moody.

That Turner J. Richardson, on the ninth day of November’, 1860, after his sale and conveyance to Bryans, with the intent and purpose to defraud Bx’yans, and without axxy valuable consideration, assigxxed the patent certificate to said T. J. Richardson and George W. Richardson, his sons, and who were then minors.

That Moody, and Bryans, under whom he claimed, had, from the time of the latter’s purchase from Turner J. Richardson, until the commencement of the action, and for more than seven years, held peaceable, uninterrupted and advex’se possession of the land; and they pleaded the statxxte of limitations.

They made their answer a counter-claim, and prayed that the deed from T. J. Richax’dson and George W.' Rich-ax’dson to the plaintiff should be set aside and canceled, and that the title should be vested in the heix’s of Moody, their intestate.

The cause, upon their motion, was transfei’red to the equity side of the court.

Almon made no defense; and no reply was filed by the plaintiff to the counter-claim.

The decree of the court was, that the deed from T. J. Richardson and George W. Richardson to the plaintiff should be set aside and canceled, and that the title be vested in the heirs of Moody.

Charles Bowen, the only witness in the case, deposed for the defendants : That Turner J. Richardson, having separated from his wife, told him that he was going to leave the country, and that he wished to make some provision for his children, whom he was going to leave with her, but said he did not know what he could do. The witness informed him, that if he would transfer his patent certificate for his land to them, they could get the deed to it. That he concluded to do so, and the witness, at his request, wrote the assignment on the certificate to his sons, T. J. and George W. Richardson, which he signed, and the witness afterwards took the certificate to Little Rock and obtained the patent for them.

It appeal’s, by the pleadings, that the deed from tbe governor to the Richardsons was filed for record on the fifteenth of January, 1866; that from Turner J. Richardson to Bryans on the thirtieth day of August, 1870 ; and that from Bryans to Moody on the first day of January, 1873 ; and it is insisted by the appellant, that, because the deed from the governor to the Richardsons was put upon the record before that from their father to Bryans, he is an innocent purchaser with the legal title. But when the plaintiff purchased, Moody was, by his tenant Almon, in actual, pedal possession of the land, and he, and Bryans, under whom he entered and claimed, had been in successive and continued possession and actual occupancy from the latter’s purchase; so admitted by the plaintiff — the fact being averred in the counter-claim, to which there was no reply.

The actual possession and occupancy of Moody at the time of the plaintiff’s purchase, was sufficient to put him upon inquiry as to the title, and there can not, therefore, be any doubt as to the validity of the title of Moody’s heirs. But they were not parties, and the court could not render a decree against the plaintiff, in favor of persons not parties in the cause.

Real estate is, by statute, made assets in the hands of the executor or administrator for the payment of the testator’s debts, and he is entitled to possession for that purpose; but in suits in which he claims the possession when the title is in question, the heirs are necessary parties.

The decree is reversed, and the cause remanded for further proceedings, with instructions to allow the heirs of Moody to make themselves parties, if they desire to do so, or to be made such by the defendants.


author: Eaiun, J.

text:
    Whittington, Ex Parte.
    1. Statutes ; Permissive words in, when imperative.

    Permissive words in statutes, in many cases, impose a duty on tribunals, which will be enforced by mandamus. But it is always in cases where the public interest, or vested private rights, are to be thereby protected or enforced. The power to give the citizen full, adequate and complete relief, or the power to promote the public interest in some prescribed mode, implies the dutj- to exercise it when the occasion arises. In all other cases, the words may, or it shall he lawful, imply discretion, and are used in contradistinction, to must or shall.

      2. Liquor License: Discretion of county court in granting.

    Under the act of May 30, 18T4, regulating the licensing of dram-shops, the county court had the discretion to grant or refuse the license petitioned for, and its action was final.
    3. Mandamus ; Discretion not controlled by.

    Where a court has discretion, it can not be controlled by mandamus.
    APPEAL from Scott Circuit Court.
    Hon. J. H. Rogers, Circuit Judge.

      Clenclening and Landells, for appellant.
   Eaiun, J.

At the election held on the first Monday in November, 1878, a majority of the voters in Hickman township, Scott county, voted “ for license.” On the eighth of January following the election, Whittington applied to the county court for license to keep a dram-shop in said township, tendering a bond and the receipt of the collector for all the county taxes, fees and costs of officers, which had been levied on retail liquor dealers — in short, complying fully, on his part, with the law.

The county court, exercising its discretion, and without passing upon the sufficiency of the papers filed in the cause, refused the license. Thereupon the petitioner applied to the circuit court for a writ of mandamus, setting forth the facts by proper allegations and exhibits, and asking that the county court be commanded to pass upon the sufficiency of the papers ; and if they be found conformable to law, to grant the license.

The circuit court held that it was within the sound discretion of the county court to grant, or refuse the license; and denied the prayer for a mandamus. From this ruling, the applicant appeals here; and relies upon the act of May 30, 1874 (Pamph. Acts of 1874, p. 48).

Before this act, the law upon the matter of retailing spirits stood upon secs. 5717-18-19 of Gantt’s Digest. These prohibited keeping retail shops without a license from the county supervisors, which board was authorized, but expressly not required, to grant such license when the applicant should present a petition therefor, signed by a majority of the resident voters of the township. It was left to the judgment and discretion of the board, considering the interest and general welfare of the whole county.” During the recess of the court, however, the clerk might be authorized by the board, to issue such license, on a proper petition, until the next meeting.

This was a very well guarded act on a dangerous subject, exhibiting a due regard to the views of those citizens who might consider the retail of liquors by the drink as safe, under wholesome regulations, and at the same time endeav oring so to contrpl it as to avoid the manifold evils to society and good government which would result from an indiscriminate use of the privilege.

The board had no authority at all to grant the license until a majority of the voters had signified their confidence in some particular man as fit to exercise it, and even then were not compelled to regard the recommendation. "Whether the clerk could permit it in vacation upon such recommendation, depended altogether on the confidence which the board might have in him.. The board might empower him to do so, or not, in its discretion.

Evidently the legislature of 1874 did not consider the safeguards sufficient. Perhaps it resulted from the goodnatured facility with which voters who might be opposed to the general policy signed the petitions of friends, from personal favor, or from a private desire to show no discrimination amongst acquaintances. Whatever the motive may have been, the legislature did change the system.

The act now relied .upon, provided that the question should be submitted to the qualified voters of the township, ward of a city, or incorporated town ; and if a majority of the votes should “ be cast for license, then it shall be lawful for such board of supervisors (now the county court) to grant licenses in such townships,” etc.; and it was further made expressly unlawful to grant them for one year after such action, if the majority were against it.

It was further required that the applicant for the privilege should enter into a bond of $2,000 to pay all damages occasioned by reason of liquors drank at his house; and to pay all money lost at gaming in his saloon or dram-shop; and it was provided that any person aggrieved might sue on the bond, both principal and sureties.

The penalty for keeping such a house, without license, was increased from a maximum fine of $50, to a maximum of $100, and the additional punishment of imprisonment in jail not less than thirty days.

This act bears upon its face the marks of an anxious solicitude to build up further safeguards against a dangerous traffic.

It was a matter wholly within the constitutional control of the legislature as a police regulation.

There was a general repeal of all laws in conflict with it. The appellant contends that upon compliance with the requirements of the law on his part, the policy of the act will be satisfied, and that in this case the terms “it shall be lawful” are equivalent to “ shall.” In other -words, that the jurisdiction and discretion of the court extends to satisfy itself that the bond is good; and that the law has been complied with, and, thereupon, to issue the license, without discretion.

Permissive words in many cases impose a duty on tribunals which will be enforced by mandamus. But it is always in cases where the public interests, or vested private rights, arqto be thereby protected or enforced. The power to give the citizen full, adequate and complete relief, or the power to promote the public interest in some prescribed mode, implies the duty to exercise it when the occasion arises. In all other cases the terms may, or it shall be lawful, imply discretion, and are used in contradistinction with must, or shall. None of the cases cited by appellant contravene this rule.

The effect of the act of 1874 is to substitute for the special petition, in favor of an individual, a general vote of the township or ward on the policy of granting licenses at all. The majority of ,the electors may prohibit it altogether; or, if they permit it, they must be understood to do so with all the safeguards against abuse which the law affords. Otherwise, there would be no use for any petition to the couDty court at all. The clerk might have been ordered to take the bond and the receipts, as ministerial acts.

The retail traffic is one which confessedly requires to be kept in prudent hands. Under the general laws of the state it is forbidden. It can not be said that it concerns, or any way promotes, the public interests for any one to exercise it. No one has a vested right to do so, which he can ask to be enforced. The former law expressly left it to the court to determine both the fitness of the traffic, and of the persons to exercise it, notwithstanding the petition of a majority. There is nothing in the last act to contravene this. There is everything to indicate that the legislature meant to double the guards against abuse. The county court must be presumed to act with a view to the public interests, and if it does not, the legislature may take away its discretion, or the people may elect more satisfactory judges.

The county court had the discretion in this case to grant or refuse the license, and acted upon it finally.

Where a court has discretion, it can not be controlled by mandamus.

Affirm the judgment.


author: Eakin, J.

text:
    Feild, Brown et al. vs. Dortch.
    1. Attachment : When jurisdiction over attached property begins.

    The intrinsic power of the court over attached property originates with, and relates back to, the levy.
    2. Jurisdiction: Consent can not give, but, etc.

    Consent can not give jurisdiction where none exists; yet, where the court has jurisdiction of the subject matter (as of property attached), and certain conditions are made essential to its exercise, they may be waived. Orders made concerning the property within the general scope of the power of the court, and in furtherance of the design for which it was attached, may be made by consent; and consent may well be presumed where parties ought to object, and fail to do so.
    3. Sale of Land Under Execution : Sheriff not bound to sell in forty-acre tracts.

      Sec. 2681, Gantt’s Dig., which provides that lands be sold under execution in forty-acre tracts, is directory, and at the option of the owner. In the absence of instructions, the sheriff will exercise his sound judgment in making the sale.
    APPEAL from Phillips Circuit Court.
    Hon. J. N. Oypert, Circuit Judge.

      Dams and Hanly, for appellants.

      Tappan Hornor, contra.

   Eakin, J.

Appellees, Dortch and wife, with others, on the nineteenth of March, 1877, brought an action of ejectment for certain lands, against divers parties in possession. Thej'- filed, as their claim of title, two sheriff’s deeds, which showed that they had purchased the lands at a sale, made by order of the circuit court in a suit by attachment, in which. William B. Dortch et al. were plaintiffs, and Cynthia PL Brown was defendant.

Cynthia PI. Brown was, on her application, made defendant in this action, and claiming to be sole owner defended for the whole, the nominal defendants being her tenants.

The issues made by the answer, involved the validity of the order of sale in the attachment suit, and the sale under it. The court tried the case upon the law and the facts, sitting as a jury, held the deeds valid, and rendered judgment for plaintiffs. All the facts are properly brought upon the record by motion for a new trial, and by bill of exceptions. The defendants appealed.

It appears from the transcript of the old case of Dortch et al. vs. Brown, that the same was an action of assumpsit, commenced by attachment against Cynthia PL Brown (appellant in this case), as a non-resident, in the circuit court of Phillips county, on the second of September, 1867. P’he writ was executed by the sheriff, on the seventeenth of the same month, by attaching, with other lands, those involved in the present suit. The return, which was not filed until the fifteenth of April, 1868, shows further, that the defendant, Cynthia Brown, was not found.

Previous to this return, at the November term, 1867, on the twenty-first of December, the plaintiffs filed, as proof of publication, a notice signed Uy the sheriff, reciting the title of the case, the issuance of the attachment and the amount demanded in assumpsit, and warning the defenclant to appear on or before tbe third day of the next court, to be held on the twenty-fourth day of November, 1867, there to demur or plead,” etc. With this was filed the certificate of one of the publishers and proprietors of the “ Southern Shield,” a weekly newspaper, to the effect that the same had been published in said paper for two weeks successively — on the twenty-eighth of September, and fifth of October, 1867. Whereupon judgment by default was, on that day, rendered against the defendant, with directions for a writ of inquiry. This writ, at the same term, on the eighteenth of January, 1868, was duly executed, and, by verdict, damages were assessed at 88,000, for which a judgment was rendered.

In this judgment, no notice was taken of the lands. The sheriff’s return upon the writ was made, as before stated, on the fifteenth of April following, and nothing more was done in the ease until the nineteenth of December, 1870, when a petition was filed by the plaintiffs setting forth the judgment and the lands attached, and praying an order of sale.

The record recites that “on this day came said plaintiffs by their attorney, and the said defendant by her attorney,” and that said petition was argued by counsel. The prayer was granted on condition of a bond, to be filed by plaintiffs, and on the twenty-third of December, 1870, the order of sale issued. No sale was made, and on motion of plaintiffs the order wTas l’enewed on the fifth of June, 1871.

On the twenty-second of November, 1871, tbe record says the parties came by their attorneys, and, it being suggested that by consent of both parties the sale had not been made, the order was renewed oil motion of plaintiffs.

Ou the twenty-seventh of November, 1872, there is a record entry to the effect that the parties came, by attorney, and reported that, by consent, no sale had been made, and it was agreed that the canse should be continued without prejudice, with renewal of the order of sale on the first day of May, 1873. In June, 1873, there was another suggestion of failure to sell, and renewal of the order. In December, 1873, there was a. continuance by consent; and again, on the twenty-fourth of February, 1874. On the nineteenth of January, 1875, the parties came by attorneys, and “ by consent of parties, it is agreed that the order of sale may be renewed.”

On the thirty-first of May following, the parties came by attorneys, and the plaintiffs presented to the court the sheriff’s report of the sale of the lands to the plaintiffs in this case; which was approved, and the acknowledgment of the execution of the deed was made in open court, and ordered to be indorsed thereon. Another deed was executed by the sheriff after the time for redemption had passed, which was acknowledged before a notary, and recorded. These were the deeds filed with the complaint in the present action.

Upon the trial the plaintiff was allowed to introduce amendments to the original return of the attachment by the sheriff, and to his report of the sale, which amendments had been made by leave of court in the original case, after the present action was brought. The first amendment, added to the return as filed in April, 1868, a certificate of the sheriff that he had caused to be printed in the Southern Shield, “the number of times, and within the time prescribed by law,” a statement of the nature and amount of the plaintiff’s demand, and notifying the defendant, Cynthia II. Brown, that an attachment had been issued against her estate, “ and that unless she shall appear, by herself or attorney, on or before the third day of the next term of the court, to-wit: on the twenty-fourth day of November, 1867,” that judgment will be rendered against her, etc. The sheriff further certified, that he had filed a copy of said publication, in open court, on the twenty-first day of December, 1867, amongst the papers in the suit, to accompany his returns, ■ and as a part and parcel of it. The amendments made to the report of sale were for the purpose of showing that the land had been sold in tracts of 160 and 80 acres, and not in solido.

The statute regulating attachments, previous to the act of 1867, after prescribing the manner of attaching lands, tenements, goods, etc., provides that, “ from and after the service of any writ of attachment, the property, money or effects, so attached, shall remain in the officer’s hands or possession, and he by him secured, to abide the event of the judgment of the court.” It was further provided that “the service of the summons in the writ of attachment, against the defendant (if he he found in the county) shall he made by reading the same to him in his hearing, or presence, or delivering him a copy thereof.” No provision was made for constructive service of the summons by the sheriff, but it was provided that, if the defendant shall not, on or-before the third day of the term (or sooner, if the court shall adjourn before that time,) appear and plead, or otherwise answer, to the plaintiff’s action, the court shall order that a publication 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 attorney, on or before the third day of the next term, stating the time the court will meet, that judgment will be entered against him, and his estate sold to satisfy the same.”

It was made the duty of the plaintiff in the action to have this notice inserted two weeks, successively, in some newspaper printed in the state, within such time as the court should prescribe. See Gould’s Digest, ch. 17, secs. 8, 9, 10, 24, 25.

Upon failure of defendant to appear, the plaintiff was entitled to judgment by default, as in other cases of default, with a jury to assess unliquidated damages. It was provided that judgment should he entered therefor, as in other cases. Ib., secs. 31, 32.

It is obvious, from a contemplation of these provisions, that there is a broad distinction between the service of the attachment, and that of the summons to the defendant. The first is the effective mode of bringing the corpus of the property — the rem. sought to be affected — within the grasp and jurisdiction of the court. That jurisdiction attached immediately on the service of the attachment, from which time the property passed under the control of the court, and out of that of the defendant. The service of the summon was still necessary to give jurisdiction of the person of the defendant, and to enable the court to bind him with regard to his property generally. It was a matter of justice, even with regard to. the property attached, that the defendant should have notice of the peril in which it stood. The law provided amply for such notice, and any disregard of its provisions to that end would be matter of error, to be corrected by any direct or appellate proceeding. But due and proper notice to the defendant, however important, was not jurisdictional, so far as the property already attached might be affected. That was already in the power of the court. Of necessity, the court must order concerning it some way. Tlie return of the sheriff was necessary, to show that the jurisdiction had attached; but, when shown, it related to the time of the levy. This view of the case is ably presented by the supreme court of Ohio, in Paines Lessee v. Mooreland, 15 Ohio, 435, cited in Drake on Attachment, sec. 409. See, also, Cooper v. Reynolds, 10 Wall. (U. S.), 308.

Amendments to the attachment law were made by act of March 17, 1867. (Pamphlet Acts, p. 294) Some slight alteration was made in the manner of attaching lands, and it was provided that if the defendant could not be found in the county, it should, at once, be the duty of the officer ■ to make publication in some newspaper, if there should be sufficient time between the levy of the attachment and the term of the court. If there should not be time, the court was to order the publication as formerly. In ease the publication were made by the officer it was made his duly to attach a copy of it to his return, together with his certificate that the same was printed and published in the paper (naming it) the number of times and within the time prescribed by law, which shall be deemed a sufficient service upon the defendant, and upon which the court may proceed to hear the cause, and give judgment according to the right of the matter.”

This statute was evidently in extension and aid of the remedy by attachment, and to avoid unnecessary delays in levying the same, and giving notice to the defendant. There is nothing in it to change the terms or conditions of jurisdiction. As before, jurisdiction of the property was acquired by the levy, and of the person, by actual service ; whilst, with regard to the disposition of the property, certain regulations with regard to notice, were prescribed, which it would be such error to disregard as would render the proceedings subject to reversal and. appeal, or writ of error.

The attachment upon which the proceedings in the case of Dortch et al. v. Mrs. Brown were founded, was properly issued, and duly levied upon the lands. That brought them within the jurisdiction of the court. At the time the court rendered judgment by default, it does not appear affirmatively that the court was advised of the levy. But the court did have proof before it, in the certificate and affidavit of the publisher of the Shield, to show that the sheriff had done his duty in causing the notice to be given, although it then appeared that he had failed in his duty, by neglecting to file a copy of the notice, attached to his return, with his own certificate that publication had been made. The proof by the publisher’s affidavit was legal, in accordance with the general law regarding legal advertisements, as it provided before and at the time of the passage of the act of 1867. (See Gould’s Digest, ch. 8, sec. 1.) It is to be observed that, by force of the act of 1867, the copy attached to the return, with the sheriff’s certificate, “ shall be deemed, sufficient service upon the defendant, and upon which the court may proceed to hear the cause.” But there is nothing in the act to repeal the general law which had been in force, regulating the practice in the state since 1839, and, by which, “where any notice or advertisement shall be required by law, or the order of any court, to be published in any newspaper, the affidavit of the printer, or publisher, with a copy of such advertisement annexed, stating, etc., * '* * shall be evidence of the publication therein set forth.”

It was a gross error in the circuit court to have rendered a judgment by default at the November term, without the sheriff’s return showing the levy, and without his certificate of the publication, and a copy. The court should have required the sheriff' to do his duty,' and taken no action until he had done so. But the court did then actually have jurisdiction of the property attached, as shown by relation on the coming in of the return, and did have before it evidence of which it could take cognizance that the sheriff, notwithstanding his failure to return the same, had given the notice required by law. It was apparent, certainly, that he had made a mistake in naming the twenty-fourth of November, instead of the twenty-fifth, as the first day of the term — a manifest clerical error, for which judgment should have been suspended; but none of these matters affect the jurisdiction of the court .over the property brought under its control by the levy.

The personal judgment, which it has been the practice to render in attachment cases, where there has been no actual service, and which seems to have been contemplated by the statute, is only such in form, and is used merely as an ascertainment of the amount for which the property attached is to answer. No execution issues upon it against the general effects of the defendant. Before the Civil Code, a special execution issued against the property seized, and, since the Code, the practice has been for the court to order the sale and apply the proceeds to the debt as ascertained. The intrinsic power of the court over the property originates with and relates back to the levy. It is not derived from the judgment ascertaining the debt, but antedates it. The regularity of the exercise of the power depends upon an entire conformity with the statutory •directions. Without that strict observance, there is error, to be corrected upon the appeal, or writ of error. But we can not, nor is the court in this case called upon to pronounce the proceedings utterly void, and of no effect, ah initio.

Eor whilst the- court had jurisdiction of the property, however erroneous the ascertainment of the debt may have been, the defendant, at a subsequent term, appears in the case in open court, and makes no objection to the former proceedings, which are, after her appearance, recited upon the record. She is present when, adopting the ascertainment of damages, the order of sale is made. She saves no exceptions, makes no motion to set any proceedings aside, and takes no appeal. She appears again, term after term, by her attorney; consenting to continuances and postponements of the same, until the same' is finally made and confirmed. There was sufficient jurisdiction over the property, and the defendant, during these subsequent proceedings, to give them vitality, unless corrected upon appeal. What was not rightfully done, was merely error, ^tnd can not be collaterally questioned.

The doctrine of estoppel plainly applies. Had the defendant, upon her appearance, objected to the judgment by default, the court might have disregarded it, and opened the case for her answer and defense. The lien of the plaintiffs upon the property attached, would have remained, and might have been properly enforced. She did not object, but appeared during sevei’al years, consenting to continuances, and making no opposition to renewals of orders of sale, and actually assenting to the last order. No objection was made to the report of the sale, nor to the deed acknowledged in open court by the plaintiff. It is too late, now, to make the objection that the orders of the sale were without jurisdiction, and void.

Whilst consent can not give jurisdiction where none exists, yet, where the court has jurisdiction of the subject-matter (as of property attached), and certain conditions are made essential to its exercise, they may be waived. Orders made concerning the property, within the general scope of the powers of the court, and in furtherance of the designs for which it was attached, may be made good by consent, and consent may well be presumed where parties ought to object, and fail to do so. The practice is not to be encouraged, of allowing parties to stand mute, seeming to assent, and reserving objections to be used collaterally. It was well said, in the case of Evans & Black v. Percifull, 5 Ark., 424, that: “If a person complains of the proceedings of a court, he should take the proper steps, within the prescribed time, to reverse them; and his failure to do so, is the highest evidence of his intention to acquiesce in them.' It amounts, absolutely, to acquiescence.” It is only where the court has no jurisdiction at all over the property or the person that the proceedings can be collaterally treated as null.

The sale by the sheriff was made in tracts of 160 and 80 acres. This, it is contended, was in violation of sec. 2681 of Gantt’s Digest, which provides that, “in all sales of real estate under execution, when the tract or tracts to be sold contain more than forty acres, the same shall be divided, as the owner or owners may direct, into lots containing not more than forty nor less than twenty acres,” and be sold accoi’dingly. This is plainly directory, and at the option of the owner. It would be highly mischievous to compel the officer, at all times, in the absence of instructions, to sell in this manner. Property might be often sacrificed, and always would be, in the case of plantations having a few acres essential to the enjoyment of the whole, whether for timber, or locations for buildings. It is sufficient to give the defendant the privilege of the division, if he should regard it as desirable, and, for the rest, the sheriff, in the absence of instructions, most exercise his sound judgment in making the sale. If he should commit any abuse of his discretion, the ready remedy is in the hands of the circuit court, upon the return of the sale. There is nothing in this case to indicate that the property was sold in any injudicious manner, or failed to bring its value. The order of sale was by consent, and the owner was well advised of the time, and might have attended to insist upon a division into forty acre tracts,if desirable. If she had meant to object, she could have done so on the return of the sale.

The sale was not void, and can not be collaterally attacked. The deeds were prima fade evidence of their contents, and showed title in the plaintiffs.

We find no material error in the finding, and judgment of the court. Let the same be affirmed.