text:
    PHELPS & JONES v. JACKSON, Admr.

      Administrators — To set aside fraudulent contracts by, etc. — A creditor seeking the aid of a Court of Chancery to reach an equitable interest in an estate, or to set aside a fraudulent contract made by an administrator, should aver and show, in his bill, that his demand or claim has been legally ascertained or reduced to judgment.
    Equity Practice — Changed by Code. — The rule that, if complainant has a plain and ample remedy at law, his bill must be dismissed, has been changed by the Code of Practice, in so far that, if his bill shows that he has a legal right, without motion before, and on motion after answer filed, if made within proper time, he may have the action transferred to the proper docket.
    Same. — On dismissal of bill for want of equity, where it appears that complain- ■ ant has legal rights, the better practice is, to dismiss without prejudice and not peremptorily.
    APPEAL EROM DREW CIRCUIT COURT.
    Hon. Henry 33. Morse, Circuit Judge.

      Wells cf* McKain and Bell if* Carlton, for Appellants.
    As to the question of jurisdiction, we submit that the Circuit Court has concurrent jurisdiction with the Probate Court in claims of this kind. See chap. 4, Gould’s Digest-, 5 Ark., 472; Ryan vs. Leman, 7 Ark., 84, and Saunders vs. Rudd, admr., 21 Ark., 519. Under our Code, there is no such thing as dismissing a bill for want of equity. See secs. 3, 18, 338, 606. If the proceedings should have been at law instead of equity, the error would not cause the abatement or dismissal of the suit. See Code, sec. 5 et seq.; Lonsdale vs. Mitchell, 14 B. Monroe, 349 ; Trustees of Lebanon vs Forest, 15 B. Monroe, 171; Robertson vs. West, 14 B. Moiiroe,b; Frazer vs. Naylor, 1 Met., 596; Foster vs. Watson, 16 B. Monroe, 71.

      J. W. Van Gilder and J. A. Jackson, for Appellees.
    The plaintiffs cannot come into .a court of equity to set aside a sale for fraud, unless they first show that they have a judgment at law, and have an execution issued and returned “ nulla bona” See 11 Ark., 411, 718 ; 12 Ark., 387; 18 Ark., 589. There is certainly no equity in the bill.
   Bennett, J.

The appellants, Phelps & Jones, filed in the Drew Circuit Court their complaint in equity against the administrator and heirs of W. E. Conly, Sr., deceased. Afterward, on the 4th day of October, 1870, the appellants filed an amended complaint. On the 4th day of April, 1870, Jackson, as administrator, filed his answer to the original complaint, with a demurrer clause added, and, on the 11th of April, 1871, filed answer and demurrer to amended complaint.

The heirs, though served 'with notice, did not appear. April 11th, 1871, an interlocutory decree was taken against some of the defendants. On the 15th of April, 1872, the cause was heard on the original and amended complaints, exhibits, answers of the administrator and guardian ad litem for minor defendants, demurrer and proofs, and a decree was rendered dismissing the complaint. From which decree an appeal was granted.

Was the complaint properly dismissed? The complaint .stated that plaintiff's were partners, on the 20th day of January, 1862, and doing business as commission merchants, in New Orleans, and that W. E. Conly, Sr., on that day was indebted to them in the sum of $4270 28, of which sum $1082 98 was evidenced by a note; the balance was on account.

W. E. Conly, Sr., died on the 1st day of September, 1865. At the time of his death, he held a vendor’s lien on certain lands, as described in the complaint. On the 11th day of October, 1866, one of the defendants, W. E. Conly, Jr., as foreign administrator, obtained a decree in chancery to foreclose this equitable lien. The land was sold, in pursuance of this decree, to W. E. Conly, Jr., for the benefit of the heirs of W. E. Conly, Sr. No part of .the purchase money was paid, except the amount sufficient to pay costs of foreclosure. The complaint alleges that W. E. Conly, Jr., and the heirs'of ~W. E. Conly,-Sr., were in collusion to defraud the plaintiffs, by the purchase of said lands, and not accounting for the same. The heirs of ~W. E. Conly, Sr., are in possession of the land.

On the 11th of July, 1869, the defendant, James A, Jackson, was duly appointed administrator. On the 18th day of August, 1869, the note and account, duly authenticated, were presented to the administrator, but he refused to allow them as claims against the estate of W. E. Conly,' Sr. It is further alleged, that the accounts of the plaintiffs with the estate of Conly, deceased, are so complicated that they cannot have proper relief -in a court of law, and that the personal assets of the estate are not worth $25. The complaint then prays that the defendant, Jackson, as administrator, be required to state what amount of personal assets belong to said estate, and that their claim be allowed and classed as a demand against the estate, and that the administrator pay the amount out of the assets, and, in default of which, that the lands mentioned he subjected to the payment. The note and accounts are made exhibits.

In the amended complaint, certain judgments obtained in Texas are set out, and the complaint states that these judgments were obtained against W. E. Conly, Jr., as administrator of IN. E. Conly, Sr., and that they are unsatisfied, and that there is no other property out. of which they can satisfy them except the lands as described in the original complaint. It as also alleged that JN. E. Conly, Sr.’s estate is insolvent.

The answers of the defendants, Jackson, administrator, and of the guardian ad litem, deny none of the allegations of the bill; nor does the proof introduced-. The records do not disclose the fact whether the court below dismissed the bill upon its merits, or whether it ivas dismissed for want of equity. The answers and proof not helping the defendants, we must presume the judgment of the court was based upon th e demurrer. Therefore, we shall consider the case as though no answer or proofs were introduced, and decide the issues of law as on demurrer.

The answer of Jackson sets out three causes of demurrer: .First, as to the sufficiency of the complaint; Second, as to the jurisdiction; and, Third, a special cause, which is more properly included in the first.

Taking these parts, of the demurrer in their more appropriate order, we will discuss the question of jurisdiction first.

In the collection of claims against the estates of deceased persons, litigants may proceed, by actions as laid down in the-statutes. By chap. 4, secs. 101, 102, Gould’s Digest, the manner of exhibiting claims against the estates of deceased persons is prescribed. One of the modes thus prescribed is laid down in sec. 101 , 'chap. 11, which says: “All actions commenced against any executor or administrator, after the death of the testator or intestate, shall be considered demands legally exhibited against such estate, from the time of serving the original process on the executor or °administrator, and' shall be classed accordingly.”

In claims of the kind, as presented in the complaint, the Circuit Court has concurrent jurisdiction with the Probate Court. Pullam et al. vs. Yell, Governor, 5 Ark., 472; Ryan vs. Demon, 7 Ark., 84; Saunders vs. Rudd, adm’r., 21 Ark., 519; Hornor, as Trustee, vs. Hanks, 22 Ark., 587.

■ This leads us to consider that part of the demurrer which states that the complaint does not allege facts sufficient to constitute a cause of action.

The complaint sets out that ~W. E. Conly, Sr., was indebted to the plaintiffs in, an amount named; that it was never paid, and the defendant, Jackson, is his administrator, and that the claim was properly authenticated and duly presented. The suit is founded, in part, on bills of exchange, and the dates show that they are not haJ'i’d- by the statute of limitations. These facts, if true, would entitle the plaintiffs to judgment in a suit at law; but do these facts constitute a cause of action in chancery ?

The plaintiffs’ claim to the equitable interposition of the equity side of the court rests, 1st: Upon-the ground that they are creditors of tlie estate of "W. E. Oonly, Sr., deceased, and that W. E. Conly, Jr., the foreign administrator, confederated with the heirs of W. E. Conly, Sr., and fraudulently secured the title and possession of certain lands, in violation of the i-ights of plaintiffs, and that, aside from these lands, there are no known assets out of which their claim can be paid. They also seek to make the administrator discover what personal assets may be in his hands, and .desire judgment for the amount of their claim, and, in default of payment by the administrator, that the lands mentioned he subjected to the payment of it.

"Whatever may be the effect of fraud upon a contract, as between parties themselves, in consideration of their infamy, or public policy, there can he no question but that creditors and others, whose rights are affected thereby, may cause such fraudulent contract to be set aside, and their rights, so affected, may be protected and preserved: justice Walker, in the case of Meux vs. Anthony, et al., 11 Ark., 418, says: “ The right to this equitable interposition is based -upon three grounds: First, that the party complaining has such rights. Second, that they are affected by such fraudulent contract. Third, that the contract is,, in fact, fraudulent. And first, in regard to the rights to be affected. They must be definite, ascertained rights, by the ordinary tribunals appointed for that purpose. Thus, it has been held that it is not sufficient for a creditor, when he comes into a court of equity, to have a fraudulent sale set aside and the property subjected to the payment of his debt, that he should simply show ah outstanding debt liquidated or unliquidated, but he must also show that he has prosecuted such claim to judgment, so that it may be judicially ascertained that he has a certain specific amount due him; nor is that sufficient; he must show that process has been regularly issued thereon, .and returned nulla bona, for, until this is done, it is not ascertained that his rights are necessarily affected by such transfer. Or, if the complainant would avokl the force of this rule, he should show such equitable circumstances as will relieve him from its application, making his case an exception to the rule.” It has been expressly decided by this court, that a judgment, in the Circuit Court, obtained against an administrator or executor, does not confer authority upon the plaintiff to collect the judgment in the ordinary mode, by the process of the court. The judgment, though it has settled the existence of a demand, has completed its allowance, and has imposed upon the administrator the duty to classify it. Adamson et al. vs. Cummins, ad., 5 Eng., 548.

Therefore, it may not require a person, seeking in equity to set aside a fraudulent contract, made by the administrator with the heirs of an estate, to aver in his bill that process has been regularly issued and returned nulla bona; but we can see no reason why he should not have obtained a judgment on his claims. The reason and propriety of thisis obvious. It is altogether pren®ature, on his part, to ask the Chancellor to set a contract aside until this is done. Until his claim is so adjudicated, even admitting the transfer of property, or the use of the assets to have been fraudulent, he has no right to complain of wrong done him. Ele may never obtain a judgment upon his claim. He may not be a creditor of the estate. The note and account may have been‘paid — the judgment satisfied. The refusal of the administrator to allow them must have.been based upon some legal reason for their rejection. Therefore, it is necessary that at least the legal rights of the parties should have been ascertained before a bill of complaint in equity can be maintained to reach an equitable interest or set aside a fraudulent transaction of the debtor.

The second ground of equitable jurisdiction in this case is alleged to be, that the suit embraces a mutual and complicated account.

Erovided the rule is that equity has jurisdiction to settle mutual and complicated accounts, the facts in this ease would not warrant equitable interference for that reason. This cause of action is founded upon a note, judgments and accounts. The note is a plain promissory note. The judgments, as set forth in the amended bill, were obtained in the State of Texas, in a court of competent jurisdiction, and duly authenticated, and the account is a plain, straightforward statement of debits and credits; such as is usually made and rendered in daily mercantile transactions. Nothing appears in either to make theit solution, in any sense, a matter that a legal tribunal could not justly solve. No equity, then, appears in the bill. The plaintiffs, however, insist that, providing there is no equity disclosed in the bill, it should not have been dismissed, if it showed a cause of action at law, hut have been transferred to the law side of the court.

It is an old 'and familiar rule of chancery practice that, if the complainant has a plain and ample remedy in a court of law, his bill cannot be entertáined, but must be dismissed for the want of equity. The Code, however, has changed this practice, and allows a plaintiff, who has committed aiqerror as to the kind of proceedings adopted, to change them and transfer the action to the proper docket; but this change and transfer must be done by the plaintiff. If the error is discovered before answer is filed, it may be done without motion ; if afterward, on motion, in court. The transcript in this case does not show that the plaintiffs, in the court below, made any effort to have the proceedings changed. It is within the province of the court to make the transfer, but it is not bound to exercise this discretion, unless asked to do so by the party desiring it. "When the bill has been examined, and judgment pronounced of “no equity in it,” unless the party complaining makes some effort to have the proceedings changed to the proper forum, it is the duty of the Chancellor to dismiss the bill.

The complainants, in the case at bar, may be entitled to a judgment at law upon their notes, etc.; in such instances it is not best to make a peremptory order of dismissal, but to dismiss the bill without prejudice.-

To this extent,.the decree of the Chancellor is-erroneous-, and should be modified to read, “and complainants’ bill be dismissed without prejudice.” In all other respects, the proceedings aiid findings of the court below are affirmed.


source: Caselaw Access Project

author: Searle J.

license: Public Domain

text:
    SMITH & BRO. v. VAN GILDER, Adm’r.

      Verdict — When not disturbed. — The verdict of a jury, or the finding of facts hy the court trying the case, sitting as a jury, will not be disturbed unless the same be without evidence to support it.
    APPEAR PROM ASHLEY CIRCUIT COURT.
    IIon. Henry B. Morse, Circuit Judge.

      Johnston &; Hawkins and Watkins & Rose, for Appellants.

      J. W. Van Gilder, for Appellee,
   Searle J.

The issues in this action were tried in the court below by the court sitting as a jury. Finding and judgment were for the defendant, from which plaintiffs appealed to this court. The motion for a new trial was upon the following grounds:

First. That the court refused to declare certain propositions of law, asked by the plaintiffs to be declared as the law of the case.

Second. That the verdict and judgment of the court were contrary to the law and evidence.

As to the first ground for a motion for a new trial, we have but a word to say. The court declared a number of jn-opositions of law, which, taken together, fully comprehended the substance of what was contained in the propositions of law refused. No prejudice, therefore, could result from the refusal of the latter. The propositions of law declared seem to comprehend fully the law of the case. So the appellants can have no cause for complaint upon this first ground - for their motion for a new trial, by the same being overruled.'

We will now consider the second ground for the motion for a new trial, namely, that the verdict and judgment of the court were contrary to the law and the evidence. This we will take to mean, as was .doubtless intended, that the finding of the facts by the court, sitting in the trial -of the case, as a jury, was contrary to the law and the evidence. It appears that the writing sued upon, as evidence of indebtedness, was executed by Kittrell & Co., and it is contended, by appellants, that D. L. Evans, of whose estate the appellee is administrator, was a partner of the firm when the same was executed, of at least held himself out as such, which fact induced the appellants to give credit to the writing sued upon, and accept the same. The main question of fact for the court, as a jury, to find, was, as to whether Evans was a partner in said firm, or held himself out as a member of the firm, thereby giving the firm credit, by which the obligation accrued, as upon this depended his liability or the liability of his estate to satisfy the note sued upon. The court found, as the facts in the premises:

First. That Evans was not a partner in said firm.

Second. That he did not hold himself out by words or acts, as a partner,' either open or secret, of the firm, or as in any manner connected or interested in the business of the firm.

Was this finding contrary to the evidence? We have carefully examined the evidence, and though we find it very conflicting, the finding of the court was not without-foundation. We are not, therefore, disposed to disturb it. For the well known rule that the verdict of a 'jury will not be disturbed, unless the same be without evidence to support it, will apply to the finding of facts by a court trying the case, sitting as a jury, to the same extent and for the same reasons. The finding of facts, by a court, not being against the evidence, is neither against the law, as the law was correctly declared.

The opinion of this court is, therefore, that there was no error in the proceedings and judgment of the court below, and the judgment must be affirmed.


author: Stephenson, J.

text:
    HAAG et al. v. SPARKS.
    Administration— When court of equity will interpose. — Although a Court of Chancery will not interfere in the administration of an estate, airead}- commenced in the Probate Court, and assume the settlement of a question concerning the estate, which rightfully belongs to the jurisdiction of the Probate Court, - yet, if the bill presents such a state of facts and circumstances as show that an irreparable injury is pending, against which the Probate Court is powerless to grant relief, the interposition of a Court of Chancery is allowable.
    APPEAL EROM SEBASTIAN CIRCUIT COURT.
    Hon. E. E. IIam, Circuit Judge.

      Walker $ Rogers, for Appellants.
    "While a court of equity will not interfere with an estate in process of settlement in the Probate Court, .yet, if the-administrator refuse or neglect to account, the creditors or distributees can hold him to account in a court of equity. Mallett et al. v. Dexter, 1 Curtis, U. S. Ct. Ct. Rep. 178; and certainly under our Code of Practice. See Section 465, page 141.

      A. II. Garland, for Appellee.
    The Probate Court has full and complete jurisdiction of administrations — to compel administrators to settle, etc. Gould’s Digest, Title, Administration, Sections 122, 148; and until a party has exhausted all his remedy in that court, or for fraud, etc., lie cannot be heard in equity to force an administrator to settle the estate. 23 Ark., j>. 93 and cases cited; 26 Ark., 373.
   Stephenson, J.

This was a bill filed by the heirs of John P. Haag, deceased, in the Circuit Court for the Fort Smith district of Sebastian county, against James H. Sparks and William Levy, administrators, and Yolney Y- Ivlilor, administrator, de bonis non, of the estate of said Haag.

The bill charges that John P. Haag, father of the plaintiffs, died about February 11, 1861, possessed of a large .amount of personal property, greatly more than sufficient to satisfy and pay his just debts and funeral expenses; that in March following, James H. Sparks and William Levy, two of the defendants herein, obtained letters of administration upon the estate, from the Probate Court of Sebastian county, and possessed themselves of the personal estate of the intestate; that debts to the amount of $485 75 have been proved and allowed against the estate; that soon after getting possession of the property, Sparks and Levy sold the same and invested -the proceeds in their private business, and have never paid over or accounted to any person for the same, but, on the contrary, fraudulently converted the same to their own use ; that they have never filed any account current or sales bill in the Probate Court, so that the plaintiffs are unable to •state the true amount of the estate, but they believe and so charge, that they received in money (gold) $665, and of the proceeds of the sale $1000; that soon after the sale of the property, Levy left the State, and plaintiffs have been unable to learn his whereabouts. That recently, James IT.. Sparks has been adjudged a bankrupt, and is now in greatly embarrassed circumstances, wholly unable to pay his debts contracted since his bankruptcy, and those debts of a fiduciary character, from which he could not be discharged under the bankrupt law; that C. G. Ilicken, who has since died insolvent, and John Deckel, who is also insolvent, were the only securities on the administration hond, executed by the said Sparks and Levy; that, on account of the insolvency of Sparks, he is unable to give a new bond if required to do so; that Sparks is joint owner or tenant in common, with John E. Wheeler, of a printing and newspaper office, and the brick building containing it, on Garrison Avenue, in the city of Eort Smith; that he is now attempting to dispose of his interest in said premises^ with the fraudulent intent of preventing this property from being subjected to liability to these plaintiffs, and in case he should effect such sale, any judgment which they might obtain against him, would be worthless; that this is-all the property Sparks has out of which they can make-their claim against him.

Plaintiffs further allege, that one Volney Y. Milor claims-to be administrator cle bonis non of Ilaag, but allege that they are unable to find any record evidence of the revocation of the letters granted to Sparks and Levy, but pray that he may be made a party and required to disclose his alleged rights in the premises. Prayer of plaintiffs that Sparks-be enjoined from selling or disposing of the property until an accounting can be had; that an account be taken of the property of the estate in the hands of Sparks. Also, that an account be taken of the debts and funeral expenses of the intestate; that the,personal estate be applied in a due course of administration, and that the clear residue thereof be ordered and adjudged to be paid to the plaintiffs.

The record shows service upon Sparks, but none upon the other defendants. Sparks appeared and filed a general demurrer and answer to the Jnll, reserving several causes of special demurrer to be determined at the hearing.

The demurrer to the bill was sustained by the court, and the plaintiffs resting upon it; the bill was dismissed, and the plaintiffs appealed.

We have simply to inquire if the plaintiffs have set up such a state of facts as will entitle them to equitable relief.

This court, in Clark vs. Shelton, 16 Ark., 481; Dooly vs. Dooly, 14 Ark., 122; Moss vs. Sandefur, 15 Ark., 381, has defined the jurisdiction of the Probate Court, under existing* statutes, so far, at least as is necessary to the determination of this case; and, in Moran et al. vs. McCown et al., 23 Ark., 94, and Freeman et al. vs. Reagon, 26 Ark., 373, it is decided that, where the administration of an estate has been commenced in the Probate Court, and is in process of adjudication, a Court of Chancery will not assume the settlement of any question concerning* the estate which rightfully belongs to the jurisdiction of the Probate Court, nor will it withdraw a case from that court.

If, therefore, the relief prayed for in this bill falls within the scope of the jurisdiction conferred on the Probate Court, as defined in the cases above cited, the demurrer was properly sustained.

Before proceeding to the consideration of the only question which we think involved here, we are constrained to remark that the long* space of time through which the case has been allowed to sleep, undisturbed by that vigilance which the law requires at the hands of the court chai’ged with the administration of dead men’s estates, suggests the query, how far such neglect might be allowed to continue without the interposition of the superintending control of this court?

Appellants charge in their bill that one of the securities in the bond of Sparks and Levy is dead and his estate is insolvent, and that the other, though living, is also insolvent. That one of the administrators, soon after the sale of their •father’s personal estate, left the country, and has not since been heard of; that his co-administrator, Sparks, who interposes this demurrer, has been adjudged and discharged as a bankrupt; that he has become embarrassed and unable to pay his debts contracted since his bankruptcy, and those of a ■fiduciary •character, from which the bankrupt law did not absolve him; that he is the part owner of a brick building in Fort Smith, and a printing and newspaper office, which he is ■attempting to sell for the fraudulent purpose of defeating the claim of these appellants; and. that this property is the sole ■reliance of the appellees for their money.

These allegations, which appellee, Sparks, by his demurrer admits to be true, certainly present a case where the appellants are in great danger of suffering irreparable mischief, if not relieved by some judicial power, and, from the authorities above referred to, it is clear that they are not relievable-. in the Probate Court. It is the peculiar province of the-. Chancellor, under the state of facts presented by these pleadings, to lay his hand upon this property and prevent the-fraudulent disposal of it until the rights of Haag’s heirs can be adjudicated and determined in the forum charged with that duty; and we are of opinion that such a spur applied to the dormant energies of the appellee, would hasten a conclusion of the long slumber which the administration of this estate seems to have had in the Probate Court. Vc do not find it necessary to consider further the question of the withdrawal of the case from the Probate Court, as the Chancellor,, .upon the hearing, can, if he finds the allegations of the bill to be true, enjoin the sale of the property until the administrator files a sufficient bond for the faithful administration of the estate, or renders an account of his administration, or in case of his failure to do so, then the Chancellor could, with propriety, upon presentation to him of the indebtedness of Sparks to the estate, after his removal, decree its payment out of the property enjoined.

As we have determined that appellants are entitled to relief upon purely equitable grounds, and can obtain it as against the appellee, Sparks, as fully, under his bill, as if the administration of .the estate was transferred to a Court of Chancery, we decline to go into the question- presented by appellant’s, counsel, as to the power of removal into the Circuit Court of the administration of estates begun in the Probate Court under the provisions of chapter 3, Code of Civil Practice.

The decree of the Sebastian Circuit Court, sustaining the demurrer and dismissing the bill, is reversed, and the cause remandecl, to be proceeded with to the bearing, in a manner not inconsistent with this opinion, and a temporary restraining order, as prayed in the bill, is granted until the further hearing before the Circuit Court, and upon the filing of a bond in the sum of $500 by the appellants, approved by the Circuit Clerk of Sebastian county.


author: Bennett, J.

text:
    JOHNSON, Adm’x. Etc. v. DuVAL, Adm’r. Etc.

      Appeals — When not taken in time. — An appeal, not taken in the manner and within the time prescribed by law, will be dismissed for want of jurisdiction.
    Same— When time may he extended. — The court, in the exercise of its sound discretion, may extend the time for filing the papers on appeal, by a proper showing, on the part of the appellant, that the delay was not owing to laches • on his part; that due diligence has been used, and that he has been prevented by means and circumstances over which he had no control.

      Same — When taken by Executors, etc. — Executors and administrators, appealing from judgments rendered against the goods of their testator or intestate, are not required to file the bond and security as in other cases provided, but they will bo hold to file the affidavit, for appeal, required by the statute..
    APPEAL EROM SEBASTIAN CIRCUIT COURT.
    Hon. T. II. Barnes, Special Circuit Judge.

      Walker & Rogers, for Appellant.

      Rose & Green and Ben. T. DuVal, for Appellee.
   Bennett, J.

This suit was originally brought in the Probate Court' by the appellee against the appellant. On the 9th day of May, 1871, an appeal was granted to the Circuit Court, but the papers in the case were not filed until the 4th day of November, 1871.

At the next succeeding term of the Circuit Court, held in April, 1872, the appellee filed a motion to dismiss the appeal. Upon the hearing of the motion it was sustained by the court, and the cause dismissed. The appellant asked for a re-hearing, which was also overruled. From this order of dismissal an appeal to this court has been granted. The appellee now files a motion to dismiss the appeal from this court; because, as the Circuit Court acquired no jurisdiction, this court can have none on appeal.

The jurisdiction of the Circuit Court, in this case, depended solely upon the fact, as to whether the appellant had taken her appeal in the manner and within the time prescribed by law.

Section 2 of an act of the General Assembly, approved Mareh.16,1871, says: “Appeals may be taken from said Probate Courts to the Circuit Courts, but shall be taken without bills of exceptions, and in the manner and within the time that appeals are now taken from Justices’ Courts; that is to say, the party appealing shall produce, within sixty days, after the rendition of the judgment, to the clerk of the Circuit Court, a certified copy of the judgment and amount of costs, and cause to be executed, before said clerk, by one or more sufficient sureties, to be approved by the clerk, a bond to the effect that the appellant will satisfy and perform the judgment that shall be rendered upon the appeal; whereupon, the clerk shall issue a mandate to the judge rendering the judgment or decree, as tlie case may be, notifying him that an appeal has been taken in the cause, and to stay all further proceedings on the same, and to transmit, to the office of said clerk, all the original papers therein, and the appellee shall be actually or constructively summoned to appear and defend the appeal.” * * * * * Section 8, says: “ The party appealing, besides executing the bond, as required by section 2 of this act, shall file with said clerk of the Circuit Court, an affidavit that the appeal is not taken for delay or vexation, but that justice may be done.”

Under this law, which was'in force at the time of this appeal, there are three main requisites necessary to perfect an appeal from the Probate to the Circuit Court. 1st. The party appealing shall produce, within sixty days after the rendition of the judgment, a certified copy of the j udgment and amount -of costs. 2d. He shall cause tó be executed a bond, with securities, to the effect that he will satisfy and perform any judgment that may be rendered against him. 3d. He shall file with the circuit clerk an affidavit that the appeal was not taken for delay or vexation, but that justice may be done.

Erom the transcript of this case, we find, that neither of these requirements hasbeen done. On the 9th of May, 1871, the judgment, on the subject matter, was rendered in the Probate Court, and on that day an appeal was granted by the court. The papers, etc., of the cause, were not filed in the office of the circuit clerk until the 4th day of November, 1871, nearly six months after the appeal was granted. Even if this was the proper mode of procedure to perfect the appeal, it is barred by the lapse of time between'the'day of the rendition -of the judgment and the day of filing the papers in the Circuit Court, and the court could properly dismiss the appeal upon that ground alone, unless the court, in the exercise of its discretion, should extend the time, by the appellant showing she had used reasonable diligence on her part, or that the delay was not caused by her own laches, and by means or circumstances over which she had no control.

Neither was a bond filed in this case; but was it necessary? Notwithstanding the broad language of the act which requires from parties applying for appeals, that they should give bond and security to pay the amount of the recovery and cost awarded, in case the judgment should be affirmed, these terms, we think, cannot be regarded as applying to executors or administrators, when they are appealing from judgments rendered against the goods of the testator or intestate.

There have been various reasons assigned for construing such cases to be exceptions of the statute. It has been said that they are not bound to give security on an appeal, because they gave it when they undertook the administration of the estate; and that such bond and security would make the debt their own, and that such bond and security from executors and administrators, on appeals from judgments or decrees found upon a demand against the testator, would frequently prevent them from seeking relief against an erroneous”judgment or decree, which, however ruinous to the estate, might not affect his individual interests. These are the reasons given: 1 Lomax on Executions, 541, and McCauley vs. Griffin, 4 Grat. 9; Shannon vs. Christian, 1 Rand., 393; Sadler vs. Gun, 1 Hen. Munf., 26, all of which were construing a statute in Vii’ginia somewhat similar to the one now under consideration. And we believe them to be sufficient to warrant us in saying, that executors or administrators, under official bonds, as such, are not required to give the bond required in section 2 of the act approved March 16; 1871.

No affidavit was filed, as required by the statute. This is a prerequisite which has not been waived or dispensed with. No reason, can be urged why an executor or administrator should not say, under oath, that .he desires to appeal that justice may be done and not for delay or vexation.

The case, we think, was properly dismissed, in the court below, for want of jurisdiction. The Circuit Court having no jurisdiction, we can acquire noiie on appeal. The motion to dismiss is sustained, and the cause ordered to be stricken from the docket.


author: McClure, C. J. Gregg, J.,

text:
    WELLS v. COLE.
    State Scrip — Not receivable in payment of county or school district tax.— The Legislature cannot make the certificates of State indebtedness and Auditor’s warrants receivable in payment of county taxes, or school district taxes.
    Same — Where the Legislature authorizes money to bo raised for one purpose, the funds so raised cannot be applied to another and different purpose, but each levy is a separate and distinct tax and must be discharged in money, or by a warrant drawn on that particular fund.
    APPEAL EROM DREW CIRCUIT COURT.
    Hon. Henry B. Morse, Circuit Judge.

      A. H. Garland, for Appellant.

      T. D. W. Yonlcy, for Appellee.
   McClure, C. J.

The appellant, desiring to pay taxes due on his lands, in Brew county, tendered to the collector of said, county the amount due thereon in what is commonly called “ Treasurer’s certificates.” For the amount due the State, the collector signified a willingness to receive the “ Treasurer’s certificates,” but declined to receive said certificates in payment of the taxes riiie the county, on the ground that the County Court of said county had instructed and ordered him “ not to receive State scrip or Auditor’s warrants for the payment of county taxes, or the school district tax.” To compel said collector to receive said “ Treasurer’s certificates ” in payment of said taxes, the appellant applied to the Brew Circuit Court for mandamus, which said court refused, and the case is brought here by appeal.

The sole question presented by the record is: Can the Legislature* make the certificates of State indebtedness and Auditor’s warrants receivable in payment of county taxes or school district taxes ?

The first act, which authorized the issue of Treasurer’s certificates, was approved July 23, 1868, and provides that said certificates shall bear eight per cent, interest per annum, and be receivable for all State clues and State taxes, except taxes for school purposes, and be printed on bank note paper, in sums of one, two, five and ten dollars respectively. On the 16th of March, 1869, the legislature passed another act (that of July 23, 1868, having expired by limitation), authorizing the issue of Treasurer’s certificates similar to those issued under the provisions of the last named act, which were to bear five per cent, interest per annum, and were receivable for State taxes and debts due the State, except taxes for school purposes and debts due to the school fund.

On the 24th of March, 1869, the General Assembly passed another act authorizing the issue of eight per cent, certificates, by the Treasurer, on bank note paper, in sums of one, two, five and ten dollars respectively. The first section 'of said act makes said certificates receivable for all State taxes, special or otherwise, and for all debts due the State. The .second section of said act makes said certificates receivable in payment for all State, county and municipal taxes, and all collectors are required to receive the same, when tendered, in payment for taxes for State, county, school and municipal dues, at the face thereof, and accumulated interest.

On the 15th of March, 1871, the General Assembly passed another act - repealing the last mentioned act, and authorizing the issue of five per cent, certificates, making the same receivable for all State and county taxes, and all other taxes due the State, except interest on the public debt.

In the revenue act, which was passed ten days after the above recited act, is found the following: “ lie (the collector) shall receive county warrants in payment of county taxes, •the orders or warrants that may be payable upon presentation, of any township., town or city, for their respective taxes, .and the warrant of Auditor of State or Treasurer’s certificate of indebtedness, for State taxes.”

This last act does not say that Treasurer’s certificates and Auditor’s warrants shall not be received in payment of county and municipal taxes ; it only enjoins upon the collector to receive county and municipal taxes in warrants, issued by proper authority, when tendered, leaving the exception of the Treasurer’s certificates and Auditor’s warrants an open question as to whether county and municipal taxes could be paid with Treasurer’s certificates, if the tax-payer did not have county or municipal warrants. It may be urged that the language used in the revenue act of March 25, 1871, evi-. deuces an intention to prohibit the reception of Treasurer’s certificates for county or municipal taxes. All this may be true, but we prefer, or will assume, for the purpose of argument, that the tax-payer had the option to pay all his taxes— State, county and municipal — in the Treasurer’s certificates, and this we do for the purpose of meeting the question presented in its strongest light. The question stated, and the one presented, is : Can the Legislature make Treasurer’s certificates of indebtedness receivable i\\ payment of county and school district taxes ?

Counties are quasi corporations, organized as a part and parcel of the State government, to subserve the public interest, and to this end, and in order to accomplish this object, certain corporate powers are conferred upon them. The building of bridges; the improvement of roads; the support of the poor ; the erection and care of county buildings; the payment of interest and principal of bonds issued by counties to aid in public improvements; the payment of expenses incurred in the support and maintenance of courts of justice, and the payment of all officers and persons entitled by law to compensation for the duty performed or enjoined, and many others that could be named, are among the things which the county authorities are required to levy a tax for the payment thereof.

Under chapter one hundred and forty-seven, of Gould’s Digest, regulating the assessment and collection of county revenue, the County Court is authorized to levy a county tax to defray the expenses contracted and incurred by the several counties. The amount so levied was denominated a “ county tax,” and when so levied and collected, the amount, thus obtained, was subject to distribution and appropriation for the internal improvement and local concerns of the county; for the payment of viewers, reviewers and overseers of the road; the erection of bridges, and the keeping of the same in repair ; the maintenance of paupers; the erection and repair of county buildings, and the payment of the ordinary expenses' of the county. The law, in this respect,- has been changed, and the objects for which a county may levy and collect a tax are specifically enumerated by law, and must be distinctly stated when levied, and when collected, constitute separate and distinct funds. Section 74, Revenue Law o/1871 says: “ The County Court of each county shall, on the first Friday after the first Monday of October of each year, determine the amount to be raised for ordinary pounty purposes— for public buildings; for the support of the poor; for bridges; for roads, and for interest and principal on the county debt. The County Court shall set forth upon the record of proceedings, specially,'the amount to be raised for each of the above defined purposes. The county clerk shall carefully ascertain the net amount collected for each purpose under said levy, and it shall not he lawful to use any specific fund for any other purpose than the one which the same was specifically levied, until the purpose for which such tax was levied shall have been accomplished.”

The one hundred and forty-sixth section of the revenue act, of March 25, 1871, makes it unlawful for the County Court to levy a greater amount than five mills on the dollar for “ ordinary county purposes;” that is, for the payment of the ordinary expenses of the county; for bridge proposes, not exceeding one mill on the dollar; for road purposes, not exceeding one mill on the dollar; for the support of the poor, not exceeding one mill on the.dollar; for the erection or repairing of public buildings, not exceeding two and one-half mills on the dollar; for the payment of the interest op the funded debt of any county, or the payment of such funded debt- or parts thereof, such an amount as may be actually necessary; for the payment of the interest on any railroad bonds issued by any county as may fall duo within the current year, or next succeeding year, such an amount as may be necessary, not exceeding five mills on the dollar.

The object of thus classifying and designating the objects -and amounts which might be levied-and collected by county authorities, must be obvious to all, and it must bo equally apparent that the county authorities have no power to levy taxes for purposes other than those mentioned by some act of the Legislature. To illustrate, we will suppose the County Court desired to erect a county jail or co.urt house, or to pay the interest upon her bonds issued to railroads, and that the outstanding warrants of the county were greater than the levy of five mills on the dollar would take up, within that year, the result would be, if the warrants drawn'on the county treasurer, to pay the “ordinary expenses of the county,” were receivable in payment of the levy made to pay the interest on railroad bonds, or in payment of the tax levied to build a jail or a court house, that the specific object of the levy would be defeated; but if on the other hand, as the law contemplates, these levies are kept as separate and distinct funds, and only payable in the warrants drawn thereon, the object for which the levy was made may be accomplished, and the persons entitled thereto paid the amount due them from the particular fund. In the case of the People v. Stout, 23 Barb, 338; this principle was discussed, and it was held that where the Legislature authorized money to be raised for one purpose, that the fund could not be misapplied. Each levy is a separate and distinct tax and must be discharged in money, or by a warrant drawn on that particular fund.

ANe have- seen where a diversion of a fund would lead to, and what would ensue if one fund of a county could be absorbed or paid by warrants drawn on another. State scrip, as it is sometimes called, is not money; that is, it will not pay a debt existing between individuals; that'it is not at par, or worth to the holder what it calls for on its face, this court has had more than one reason to believe within the past year. It is insisted, by the appellant, that when a county takes-State scrip, that it is but the State taking her own paper. We presume such an assumption arises out of the fact that the State created the counties, and that a payment to an off-spring is a payment toa parent. Such is not the law.' The counties incur debts and obligations which they are-bound to discharge in money. State scrip is not money, and the Legislature cannot make it so. If counties or school districts are compelled to receive • Treasurer’s certificates and Auditor’s warrants for county taxes proper, or in payment of the taxes authorized to be levied by the County Court or school districts, or county authorities, they would be unable-to pay the creditors of the county or districts, or to carry into effect the objects for which the taxes were levied. The-funds raised for various purposes, by taxation, would be virtually vested in “State scrip,” and the creditors of the counties and other bodies deprived of money specifically raised to pay them. The State has no power or authority to require-the different organizations or counties of the State to invest the taxes collected in certificates of indebtedness, and this would be the result and effect of such a law, if the position of the appellant is correct. Counties and similar organizations have a right to demand the collection of their taxes in lawful money of the United States, if there be no warrants outstanding, which are entitled to payment out of the money when collected, tendered in payment thereof.

The view we have taken, of this case, renders it unneccessary to refer to that clause of the Constitution of the United States which inhibits the States from emitting “bills of credit,” or whether a treasurer’s certificate comes'within the ' definition or description of the thing calfed “bill of credit.”

Judgment affirmed and mandamus denied.

Gregg, J.,

dissenting says: This action was brought to-test the validity of the Act of the General Assembly providing for the payment of county and school .taxes in State Treasurer’s warrants, and in the range of argument has embraced municipal taxes.

While, we have arrived at a different conclusion from that reached by a majority of the court, we distinctly announce that a State has no right to emit bills of credit, or to issue notes of bills and make the same a legel tender ; because, to that extent, she-has parted with her sbvereignty. And it is equally well known that a State cannot impair the obligation of contracts, or destroy private vested rights, because the Constitution of the United States is paramount, and by it such rights áre protected. While we concede that a State is bound to observe all the rights protected by the Constitution of the General Government, beyond this, we hold that, within her own jurisdiction, she is sovereign and without the control of any lawful power.

Next, w'e assume that a Legislature, as the representative of the people, is a representative of sovereign power, and has dominion and control over all the property and effects within the State, except wherein it is limited by Constitution; either State or National; other departments of a State may exercise all such authority and power as may be granted them respectively by the Constitution, but it is left alone to the Legislature to do everything not expressly prohibited by constitutional limitation. This has been so often repeated, that certainly no one can now be found who doubts the absolute power of the Legislature, except wherein it is restricted by a Constitution.

With this announcement of fundamental principles, we will proceed to examine the statute under consideration.

This Act provides that these State Treasurer’s certificates shall be issued, on bank note paper, in sums of one, two, five and ten' dollars, and that they shall be receivable for all State and county taxes, and all other debts due the State — Act of March 16, 1871. By the first Act, that of July 23, 1868, for the issue of Treasurer’s interest bearing certificates, they were made receivable for all State taxes, except for school purposes, and all debts due the State, except debts due the school fund. The second Act, March 16, 1869, provided for a similar issue. And the third Act, March 21, 1869, provided for issuing like certificates, to bear eight per cent, interest; and in the second section fit is enacted: “That the certificates or warrants issued by the Treasurer of the State of Arkansas, under and by virtue of the Act aforesaid, and all certificates or warrants which may hereafter be issued by said Treasurer in pursuance of law, shall be, and are hereby made receivable in payment for all State, county and municipal taxes, and all debts due the State, whatever; and all collectors of taxes are-hereby required to receive said warrants or certificates, when tendered, in payment of all taxes, State, county, school or municipal, for the amount and interest borne on the face of such cci’tificates or warrants.”

Tire last Act, March 15, 1871, continues the issue of Treasurer’s certificates or warrants, on bank note paper, but reduces the rate of interest to five per cent, and declares them receivable for all State and county taxes and all other debts due the State, except interest on the public debt.

Under the provisions of these acts, the legislative will is quite clear. There can be ■ no reasonable doubt as to what they intended should be paid in these treasurer’s certificates. Then, under the enactments of the legislature, allowing assessments of taxes upon citizens, for municipal and local purposes, .the main and only question is the power of the legislature, by law, to prescribe the kind and amount of effects that counties and towns must receive for such purposes. When considering the political or public rights of such corporations, or quasi corporations, held and exercised for the good of the people, and not confounded with the private property rights they may have, we are of the opinion that the legislature has such "power, and, before referring to some special' provisions in our laws, we. cannot better urge this proposition than to quote what has been written by judges abler than ourselves'.

In the Dartmouth Collage case, 4 Wheat, 659, Mr. Justice Washington said: “That as a private corporation, it held rights that; could not be taken away by legislative act, as it would impair the obligations of a contract,” but he said “there are two kinds of corporations aggregate, viz : Such as are for public government, and .such as are for private charity; the first are those for the government of a town, city or the like, and being for public advantage, are to be governed according to, the law- of the land * * * of these there are no particular founders * * * there are no patrons of these institutions,” etc. Further speaking of public corporations, he says: “Such legislative interferences cannot be said to impair the contract by which the corporation was formed, because there is in reality but one party to it. The trustees or governors of the corporation being merely the trustees for the public * * * these trustees or governors have no interest, no privileges or immunities which are violated by such interference, and can have no more right to complain of them than an ordinary trustee who is called upon in a court of equity to execute the trust.” And in the same case, page 629, Chief Justice Marshall said: “If the act of incorporation be a grant of political 'power, if ii create a civil institution, to be employed in the administration of the government, or if the funds of the college be public property, or if-the State of New Hampshire, as a government, be alone interested in its transactions, the subject is one in which the Legislature of the State may act according to its own judgment, unrestrained by any limitation of its power imposed by the Constitution of the United States.” See 10 Sow. U. S., 535.

Mr. Kent, in his commentaries, Vol. 2, side p. 305, says: “In respect to public or municipal corporations, which exist only for public purposes, as counties, cities and towns, the legislature, under proper limitations, have a right to change, modify, enlarge, restrain or destroy them,” etc. In the case of Richmond Co. vs. Lawrence Co., 12 Ill. 8, Judge Trumbull said: “Public or municipal corporations, however, which exist only for public purposes, and possess no powers except such as are bestowed upon them for public political purposes, are subject at all times to the control of the legislature, which may alter, modify or abolish them at pleasure.” Sec 12 Iredell (N. C.) 304 and 328 to the same effect.

In the case of Bass vs. Fontleroy, 11 Texas, 705, the Supreme Court of Texas says : “The establishment of counties, their boundaries, court-houses, jails, bridges and ferries are all matters of public policy — áre dependent on the legislative will for their creation; and according to the rules laid down by the Supreme Court of the United States in the cases of Fast Hartford vs. The Hartford Bridge Co., 10 How. 511, and Mills vs. St. Clair Co., 8 How. 569, are equally dependent upon the same will for their continued existence,” etc.; and to the same effect? see 7 Cal., 97. In Montpelier vs. East Montpelier, 29 Ver., 18, the court say: “The town of Montpelier, as originally created, was invested with the powers of a municipal corporation, and like all'other towns in this State, was instituted as an auxiliary of the State in the regulation and establishment of its form of government; the lights and franchises of such municipal corporations can never become vested rights as against the State * * so far as their public and municipal franchises and existence are-concerned; it*has become a well-settled principle in the courts of this country that the legislature may exercise over them exclusive control, and, constitutionally, may enlarge, restrain and even destroy their municipal existence as the public interest may require. Such an act defeats no vested rights, nor does it impair the obligation of any contract.” Also see 27 Ver. 704, and Cooley’s Const. Lim., 239, 240 and 241.

An individual tax payor, in a corporation, has no vested right in corporate grants that cannot be legislated upon as against the corporation. 25 Cal., 641.

It is not only well settled that a State may regulate the political acts and franchises of a corporation which are purely governmental, but; likewise, she may control its business affairs and material effects so far as the same appertain to the public. In the ease of the People vs. Howes, 37 Barb., 440, the Supreme Court of New York hold that where a party claimed to have done .work for a city, but the corporation denied that any legal contract existed, the Legislature, by law, appointed a board of arbitrators to assess the damage and provided for the payment, by mandamus, on th c comptroller. The. city denied the power to make it submit to arbitration and payment, but the court held, as it was a public corporation, the Legislature had full control over it, and that its charter- and franchises wore under legislative control. Dillon, Municipal Corp., p. 82, Sec. 39.

In Layton vs. The City of New Orleans, 12 La. An., 515, the Legislature joined Lafayette town to New Orleans under one government, with a provision that the town should pay no tax more than her own liability, to settle the public debt, and that the city of New Orleans should pay all her debt. After-wards a uniform tax law was passed, and the town of Lafavette made liable for a full proportion of the city debts. It, was held that this, was not a violation of any vested right; that all towns, cities, etc., were subject to legislative will, and the. Legislature could constitutionally impose this tax upon the town.

In the case of Dennis vs. Maynard et al. 15 Ill. 479, wherein a bridge was commenced by private enterprise, the court say: “It was for a public purpose, and it was competent for the Legislature to require the building of this bridge by a general county tax, or by a precinct or township tax, if the policy was thought best,” etc. Further they say: “So it (the Legislature) may direct the county authorities to ascertain and allow past claims upon the public treasury, or it may ascertain and tax that amount, and direct the raising of means by -taxation for its payment. The public county and township funds are under legislative control, and so decided in the County of Pike, vs. The State, 11 Ill., 202. These local munieipal corporations are created for convenience in the police arrangements, hut their powers and duties remain subject to the public will through the Legislature.” State Bank vs. Kroop, 16 How., U. S., 369, et, seq; State, etc. vs. St. Louis Co. Court, 34 Mo., 546; Louisville vs. Commonwealth, 1 Duval (Ky.) 295; Dill, Municipal Corp., Sec. 30, et seq. “The Legislature, as the trustee for the general public, has full control over the public property and subordinate rights of municipal corporations, accordingly.it may authorize a railroad company to occupy the streets in a city without its consent and without payment.” Dill. Municipal Corp., 88-89, Secs. 42-43. See 31 N. Y., 164; 58 Penn., 320; 24 Wend., 65; 4 Blackf. 208; 4 Scam.., (Ill.) 273.

While the authorities show these municipal corporations and these quasi corporations must submit to the will of the Legislature in the management and disposition of their public property; they also show them equally helpless in the acquisition of property and means for their public comfort and convenience. They can levy no taxes, make no local assessment or collection hut in exact accordance with the expressed will of the Legislature.

In the city of Zanesville vs. The Auditor of Muskingum County, 5 O. S. 592, it is said: “Without express authority of law no tax, either for State, county, township or corporation purposes, can be levied. * * The convention was very well aware that much the largest part would he required to answer the purposes of these local subdivisions; aod equally well that it could only bo levied as the G.elreral Assembly should provide.” In the case of Nappa Valley R. R. Co. vs. Nappa Co., 30 Cal. 438, the Supreme Court, in discussing the right of the State to tax and direct the use of the revenue, etc., say: “And except as specially restricted its powers of appropriation of. the moneys raised is co-extensive with the power of taxation. It may appropriate them to claims which have no legal obligation, and are founded only in justice! The power of appropriation which the Legislature can exercise over the revenues of the State, for any purpose -which it may regard as calculated to promote the public good, it can exercise over the revenues of a county, city or toygn for any purpose connected with its present or past condition. In creating the law imposing the tax, it can prescribe the objects to -which the money raised shall bo applied.” See 13 Cal., 343; 20 Cal., 642. If this be correct, might not our Legislature have prescribed that this county tax should be applied in taking up State Treasurer’s certificates?

In the case of Gilman vs. The City of Sheboyyan, 2 Black U. S., 515, the court said: “The levying of taxes by authority of a county, city or town, for their support, is as much an exercise of the taxing power as when levied directly by the' State for its support. The State acts by the municipal governments, and their acts in levying taxes are as much the acts-of the State as if. the State acted by its own officers.”

And according to Mr. Cooley, these county and town organizations are so far different from private corporations, and so fully but a sub-division of the State government, that the people residing within these sub-divisions have no choice as to whether they will assume the duties or exercise the powers of such political organizations.- The Legislature assumes that these divisions are essential to good government, and the ditties are imposed as a part of the necessary burden that the citizen must assume in the process of self-government; and their functions are wholly of a public nature, and all their rights and privileges depend upon the will of the power that created them.

Outside of these general principles, from the very foundation of our State laws, it seems to have been contemplated that the Legislature should create such sub-divisions of State government,’ and prescribe their powers and duties. Sec. 28, art. 5, of our Constitution, declares that “The General Assembly may enact laws providing for county, township or precinct governments.” Sec. 48 declares that “TheGeneral Assembly shall pass no special act conferring corporate powers. Corporations may bo formed under general laws, but all such laws may, from time to time, be altered or repealed,” etc. And see. 49, that “The General Assembly shall provide for’the organization of cities and incorporated villages, by general laws and restrict their powers of taxation, assessment, borrowing money, contracting debts, and loaning their credit, so as to prevent the abuse of such powers.”

Now, if these counties or small districts were not governed upon general principles, as above shown, and as held by the courts of other States, we have these constitutional provisions authorizing the Legislature to create such local governments, and to form, corporations under general laws, which laws may at any time be altered or repealed; and when cities or villages are organized, she shall restrict their powers of taxation, assessment, etc. Do not these show beyond a doubt that the framers of our Constitution intended that these sub-divisions of the government should bo fully under legislative control ? It positively prescribes that they shall restrict them in taxing; then, if the taxing power is left to the General Assembly, can any one ejsc control their action, because the policy seems to be bad?

Rut, further, sec. 9, art. 15, of the Constitution, expressly provides that these sub-divisions shall share in the want of par funds when such burden is felt by the government of the State; it is therein declared that “all salaries, fees and per diem, or other compensation of all State, county, town, or other officers within the State, shall be payable in such funds as may by lato be receivable for State taxes.”

Thus, it. is a part of our Constitution, that all officers, including county and town officers, whether paid a salary out of the treasury or paid by the day, or compensated in fees or otherwise, shall accept such funds as may be receivable for State taxes. If we had no act of the Legislature declaring that these warrants should pay all taxes, how could the county and town officers, whose high salaries and exorbitant fees have proved so burdensome to the people, refuse, in the face of this Constitution, to accept for their public services (which consume most of the county revenues) the war: rants receivabl e for State taxes? They can not refusc'such funds, it seems to us, without violating the very Constitution they have sworn to support. Net, the appellee refuses to take any part of the county taxes in such warrants ; tb us, he will compel the tax-payers, contrary to these solemn enactments, to pay all fees and per diem for his public services indifferent and better funds.

But, upon general principles, if authority can be relied upon, these quasi corporations are forced into existence, by the will of the State, through her representatives, and the length of such existence and the powers and privileges of such bodies are alike subject to her volition.

From the eases examined, wo find that a State may embrace in one of these sub-divisions such territory and so many people as she deems best." She may locate their county scat, direct what public buildings must be erected, and prescribe how the people of the comity shall pay for them. She may compel them to settle debts-in the mode she points out. She may compel them to pay tor "work for which'they had made no binding contract; She may cause works, supposed to be of public utility, to be completed, and make them pay for it. She may take their streets and other public property, without pay, and convert them to other nses. They can collect no tax, only as she by law particularly points out, and she compels them to pay such taxes and assessments as the will of the State may dictate, and, as they come into existence as a conclusion of her policy, she takes from or adds to their privileges or burdens, or destroys their existence upon her own ■choice. While we may well question any State policy which throws heavier burdens upon any locality or class of her citizens, yet, if we regard authority, we cannot seriously question her powers. These arc political organizations, formed within certain boundaries by the wisdom of the Legislature, to aid in self-government, and the powers, privileges and burdens granted or imposed for the good of the people and the State, must be left to the wisdom of those who represent the Sovereignty of our government.

To urge that it defeats the objects for which taxes are levied, if the counties or towns receive their taxes in these certificates of the State, when they are not worth their face value, is of no more force than to say it defeats a like object to compel the State collectors to take them. The counties need money to cany on their business transactions, but it is equally necessary for the State to have money to meet,her obligations.

If the State and counties were separate and distinct organizations, emanating from different sources, and having different objects and purposes in view, that argument would have more force, but while both are of the same political body, the one but a member of the other, the whole created by the people, for no individual purpose or advantage, but for the common good, and to carry out the purposes of self-government, we see less reason and justice in one member claiming exemption from a malady affecting the body politic. But these are simply questions of policy, and must be determined by the sovereignty of the State — not by her coui’ts. They are questions of policy — not of power.

Upon these conclusions we rest our opinion that a inandamn k ought to issue in this case.


author: English, Special Judge.

text:
    APPERSON & CO. v. STEWART.
    Discharged Bankrupt — Debt of, 'revived by parol promise. — A discharged bankrupt is under a moral obligation to" pay Ms debts in' full when he can, and this obligation is, at common law, a sufficient consideration to sustain an actualparol promise to do so.

      Same — Sature of the promise, etc. — An unwritten promise to revive a discharged debt must be distinct, specific and satisfactorily proven, and, if conditional, the party seeking to enforce it must show that the condition has boon satisfied.

      Courts — Finding of facts by, etc. — The findings upon the facts by the court, sit- , ting as a jury, required by law to be reduced to writing, need not necessarily be put in writing before judgment, but the court may, after judgment rendered, reduce the same to writing.
    APPEAL FROM PHILLIPS CIRCUIT COURT.
    Non. M. L. Stephenson, Circuit Judge.

      U. M. Rose, for Appellants.
    We submit that it was not necessary that.the pi’omise to revive the debt should have been in writing. Samuels vs. Cravens, 10 Ark., 380. That if the defendant promised to pay the debt absolutely, no express acceptance was necessary. Williams vs. Robbins, 32 Maine, 181; Pratt vs. Russell; 7-Cush., 462; Fitzgerald vs. Alexander, 19 Wend., 402; Ilerndon vs. Givens, 16 Ala., 261.
    No expressed assent to a promise beneficial .to the creditor is necessary., Conway ex parte, 4 Ark., 360; Hempstead vs. Johnson, 18 Id., 123; Garnall vs. Du Val, 22 Id., 140.
   English, Special Judge.

The appellants, E. M. Apperson & Co., sued the appellee, Thomas Stewart, in the Phillips Circuit Court, on a promissory note. The appellee pleaded that, after the making of the note, he was discharged in bankruptcy. The appellants replied that, after his discharge, he promised anew to pay them the money specified in the note. The issue was submitted to the court, sitting as a jury, finding and judgment for appellee; motion for a new trial overruled; bill, of exceptions setting out the evidence, etc., and appeal.

On the trial, D. JE. Myers, a witness for the appellants, testified, in substance, that in June or July, 1810, acting as the attorney of appellants, ho went to the residence of appellee, to see him about the payment of the note sued on, and asked him to pay it. Appellee said the note had been settled by his bankruptcy. Witness then threatened to oppose his discharge, and told him of some of the grounds upon whicli.his discharge could be resisted. Whereupon, appellee said he did not seek to take advantage of his discharge, in bankruptcy, as to all his debts, but that there were some honest debts he intended to pay, and this was one of them. Witness then proposed that he should give a now note, but he refused. Witness then proposed that he should secure the debt by mortgage, but he refused, and said this was an honest debt, and ho intended to pay it, and would pay it, but did not say when he would pay it; more than that lie would ship cotton enough to plaintiffs that fall, to pay, at least, a part of it. Witness then returned to Memphis. That fall witness saw appellee in Memphis, and asked him about the cotton he promised to ship to pay a part of the debt, and took appellee to the office of appellants, and there G. Y. Rambant, one of the appellants, and appellee had a conversation about the matter, and appellee again refused to give a new note or a mortgage to secure the debt, but promised to pay the note unconditionally, and without specifying any time of payment ; and he made the same promise to witness at his (appellee’s) residence. Appellee did not say that he would pay when he was able, or on the happening of any other contingency, but promised .absolutely to pay the note. After he promised to pay the note, witness gave up the idea of opposing his discharge in bankruptcy, and did not oppose it. (Here it may be remarked, by the way, that appellee’s discharge' bears date 23d July 1869.)

G. V. Rambant, one of the appellants, testified, in substance, as follows: Some time, in the fall of 1870, appellee came with D. E. Myers to the office of - appellants, in Memphis, and had a conversation with witness about the note in suit. In the conversation, witness proposed to appellee to give a mortgage to secure the debt, but he refused to do so, but said the debt was one ho intended to pay and would pay; and said something about selling his plantation to appellants at $1200, and let the note go as part payment, but witness told him they did not wish to purchase. lie then asked them to try and sell it for him at that price. In the conversation, appellee promised to pay the note unconditionally, and did not make its payment depend on selling his place, or any other contingency, and did pot specify any time of payment, or say that he would pay when he got able.

Stewart, the appellee, testified, in substance, that sometime in February, 1870, D.E. Myers came to His residence, showed him the note in suit, and asked him about payment of it. Witness told him, he could .not pay the note then, and that he could not say when he could pay it. That he would pay it -when he was able. Myers asked him to give a now note for the debt, and offered to make it .payable at any time he wanted. Witness refused to do this; telling him that some of the parties might die, and the note might come right on him for payment.' Myers, also, asked him to give a mortgage to secure the debt, \yhich he refused to do. In the fall of 1870, witness saw Myers in Memphis. lie again asked him to give a now note for this debt, which he refused to do. Also refused to give a mortgage. Witness told him, in both conversations, that this was a debt he intended to pay, when he was able; that he did not take the benefit of the bankrupt law to avoid it entirely, but only that he might have his own time to pay it in. When he saw Myers, in Memphis, he asked witness to go with him to the office of the appellants and repeatto them what he had said to him. He went with him to the office, where they met Major Rambant. Myers said: “repeat to Major Rambant what you have told me.” Witness replied that Major Rambant knew his statements about the debt, which was all he said to them. It was before the crops were planted that Myers was at his house. They conversed under a tree in the yard, and the tree was leafless. There was at that time a mortgage on his plantation for $10,000; and a mortgage on his stock for $2500. lie lost three thousand dollars in his planting operations, the year before he was testifying. There was still a mortgage on his place for $7500. The mortgage on his stock was still unpaid, and he had fallen behind with his merchants $750. He had not been able to pay the debt in question; had not been'able to buy his wife: a second dress. Had never promised to pay this debt ■except, as before stated, when he got able. Never promised to pay it out of his last year’s crop.

The court, of its own motion, delivered an opinion in writing, giving its views of the law applicable to the case, which does not appear to have been excepted to by the appellants, or made ground of the motion for a new trial, a!nd hence, need not be reviewed.

Upon the evidence, the court, sitting as a jury, found in favor o± the appellee, and in this, it is insisted that the court erred, and should have granted a new trial.

It seems to be settled law, that a. discharged bankrupt is under a moral obligation to pay his debts in full, when he can, and that this obligation is, at common law, a sufficient consideration to sustain an actual promise to do so. The promise, however, must be distinct and specific. If the promise is conditional, then the party, seeking to enforce it, must show that the condition has been satisfied; as if the debtor promised to pay when he was able, then the creditor must prove his ability. 1 Parsons on Contracts, 381, 382.

In Samuel vs. Cravens, 5 Eng., 381, the promise of the discharged bankrupt was, that he would pay the debt when he should be able to do so, accompanied by the statement that he was not then able, and he refused to give his note, etc. The creditor sued him immediately, and this court held that the action could riot be maintained under the circumstances; that the .promise was conditional, and that it did not appear that the creditor had accepted the promise upon the condition on which it was made. Iiy the common law a parol promise was sufficient to revive a discharged debt. In England, however, by statute, VI. Geo., Ch. 16, the promise must be in writing; 1 Par, on Cont., page, 381, note A. But this provision of the English statute was not copied into the recent American Bankrupt Act. Hence here, by the common-law, an unwritten promise is valid to revive a discharged debt, but the promise should be distinct and specific, and satisfactorily proven.

If the court below, sitting as a jury, believed the testimony of the appellee, that he promised to pay the discharged debt when he was able, and that he made no other promise, the finding was correct, because the appellants failed to introduce any evidence to prove that, he was able to pay the debt at the time the suit,was commenced, but on the contrary, the testimony of the appellee conduced to prove that he was unable to pay the debt.

If the court below believed the testimony of one of the appellants, and their attorney, Myers, that the promise of the appellee to pay the debt was absolute and unconditional, then the finding, should have been for the appellants. But it seems 'from the finding of the court, and from its refusal to grant a new trial, that the court did not believe their testimony.

’’We may have the impression that the weight of evidence was against the verdict rendered by the court, but under numerous and uniform decisions of this court, we are not at liberty to overrule the decision of the court below, refusing a new trial, on the ground that the verdict or finding was against the weight of evidence.

It seems, from the bill of exceptions, that the court below did not reduce to writing its findings upon the facts until after the judgment was rendered, and this was made ground of the motion for a new trial. After the motion was overruled, however, the court reduced to writing, and filed its findings, etc.

The Constitution provides that judges shall noUcharge juries with regard to matters of fact, but shall declare the law. In all trials by jury, the judges shall give their instructions and charges in writing; and if. the trial is by the court, he shall reduce to writing his findings upon the facts in the case, and shall declare the law in the same manner he is required to do, when instructing juries. Const. Arks. Art, 7, Sec. 11. And the Code, Sec. 364, provides: upon trials of questions of fact by the court, he shall state* in writing, the conclusions of fact-found, separate from the- conclusions of law. The object of this provision of the Constitution, and of the Code, in requiring the court, when sitting ás a jury, to reduce to writing its findings or conclusions upon the facts, was, doubtless, that a memorial of them might be furnished and preserved; but we can see no particular reason why this may not be done as well after, as before the rendering of the judgment.

"We do not deem it necessary to review the objections made, by the counsel for the appellants, to the written decision made by the court below, in relation to the law of the ease, because it ivas not excepted to, or made ground of the motion for a new trial.

-Judgment ijffirmed.

Stephenson, J., being disqualified, did not sit in this case

IIon. E. II. English, Special Supreme Judge.


author: English, Special J.

text:
    STRAUB & LOHMAN v. GORDON, Sheriff.
    Gosstitutiomal Law — Article X. eonstrued. — The words, “the treasury,” occurring in the several sections of Article X. of the Constitution, moan the State treasury, a»d arc not to be construed to moan the various county treasuries.
    Same — Power of Legislature to tax pxermits, etc. — The Legislature has power, under Article 10, Section 17 of the Constitution, to impose a State tax- upon such privileges, pursuits and occupations as are of no real use to society, and the occupation of wholesale dealer in spirituous liquors, is such a' pursuit as the Legislature may require the party, exercising the same, to pay into the State treasury a compensation for the 'privilege of engaging in such pursuits, and the imposition of such tax is not. a tax upon property within the meaning of the Constitution.
    Statutory Law — Act 2~>th March, 1871, construed. — The Act of March 25, 1871, Section 154, providing that there shall be levied and collected as a ' county tax, upon dealers in liquors, etc., is not to be construed as an attempt to raise a State revenue by a tax upon dealers in liquors, and the Act is not in contravention of the provisions of the Constitution in regard to the raising of State revenue. ■
    Liquor Licenses — Power of Sheriff to collect, etc. — The acceptance of a license issued by the clerk,.and tendered by the sheriff) is optional with the, dealer and, in the absence of a 'provision of law to punisli, criminally, the sheriff cannot distrain and sell property for the non-payment of the tax.
    APPEAL FROM PHILLIPS CIRCUIT COURT.
    IIon. M. L. ¡Stephen,son, Circuit Judge.

      A. II. Garland, for Appellants.
    Upon the several propositions involved, I beg leave to refer to tlio cases following : Moore vs. 'Trustees, 4 Bush 406; 9 Dana, 516; 18 B. Monroe 15; 20 La. 585; 46 III. 392; 11 Wi*. 35; 18 111, 554; 3 Ohio (State 11) 1; 37 Maine (2'Death) 156; 4 Texas 137; 9 Id. 369; 3 Sneed (Tenn) 120; Glad. 38; 9 Minn. 273; 12 La., 343; Id. 344; 13 Ark., 752 et scq.

    This tax is condemned by all law, and the injunction should have been granted.
   English, Special J.

The bill alleged, in substance, that Straub & Lohman, the appellants, were merchants of Helena, doing- a general grocery and produce business, and as part of their merchandise, they kept and sold spirituous liquors, but in quantities not less than one quart. That they were what were known as wholesale liquor merchants, licensed, as such, under the laws of the United States, and kept ardent spirits for sale generally to their customers ; that by section 154 oan Act of the General Assembly, regulating the assessment and collection of revenue of the State, approved March 25, 1871, it was provided that, “there shall be levied and collected, as a county tax, the sum of one hundred dollars, for each and every person soiling, either at wholesale or retail, any ardent or vinous liquors (except the same is sold exclusively for medicinal purposes) in any county for the term of ope year or loss;” that under said Act the County Court of Phillipfe county, at the July term 1871, assessed a tax of one hundred dollars upon all liquor dealers within said county, and the county clerk had issued licenses and placed them in the hands of I). C. Gordon, (the appellee) as sheriff of said county, to be collected from all persons selling liquor within said county; that among those thus assessed, and to -whom license had been issued, were the appellants, and that the sheriff’had a license for them, and was proceeding to collect the same by making a-levy on their property; that said Act is unconstitutional, because Article X, Section 2, of the Constitution of the State, provides that, “laws shall he passed, taxing by a uniform rule, all money, credit, investments in bonds, joint stock companies or otherwise; and also, all real and personal property according to its true value in money,” etc., etc. That under said clause of the Constitution, and Acts of the General Assembly, all the merchandise held and sold by them, including liquors kept by them for sale, was assessed and taxed as personal property; that by said section 154, of the Act of March 25, 1871, it was attempted to impose upon them an additional tax of one hundred'dollars, without regard to the value of the property; that by Article X, Section 17, of the Constitution, it is provided that -. “The General Assembly shall tax all privileges, pursuits, and occupations that are of no real use to society; all others shall be exempt;” that the sale of liquor is like the sale of any other article of merchandise, and is a right common to every, citizen, and in no sense a privilege within the meaning of said section of the Constitution; that before any occupation can be taxed, it should be first declared of no usé to society, etc. That liquor is an article of merchandise in all States, and has been in all times; that the sale of liquor has not been declared a nuisance; but that the General Assembly, by an Act approved April 1869, entitled, “an Act regulating the incorporation and organization of municipal corporations,” has conferred the power upon municipal corporations “to regulate saloons, dram shops or drinking places, or suppress the same,”, and that the County Court possesses no power to license dram shops or tippling houses doing business within incorporated cities or towns, and that the city of Helena is incorporated within the purview and moaning of-said Act. That the tax of one hundred dollars so assessed by said county, is illegal and unjust; that unless the sheriff was restrained, by injunction, he would proceed to enforce the collection of said tax by a levy upon the property of the appellants, to the great and irreparable injury and damage of their business, etc. Prayer for injunction, etc.

The cause was heard, in the Phillips Circuit Court, on the face of the bill, as if upon a demurrer; the injunction was refused, the bill dismissed for the want of equity, and the complainants appealed to this court.

. The Constitution provides that, “laws shall be passed taxing, by a uniform rule, all money, credit, investments in bonds, joint stock companies or otherwise ; and also, all real and personal property, according to its value in money, etc.,” and provides for the appraisement of real and personal property, for the purposes of taxation, at its true value in money, etc. Art. X, Sections 2 and 3, etc.

No doubt but that all taxes assessed upon property of any description, under these provisions of the Constitution, whether for State, county or municipal purpose, must be imposed according to the properly appraised money value of' the property. The tax complained of in the bill is not a tax upon property.

Section seventeen of the same article (10) of the Constitution, provides: “ The General Assembly shall tax all privileges, pursuits and occupations that are of no real use to> society; all others shall be exempt; and the amount thus-raised shall be paid into the treasury.”

, Money raised under this provision of the Constitution is to be paid into “ the treasury.” What- treasury, within the-meaning of the language here employed, is “ the treasury ? Surely the framers of the Constitution did not intend to embrace in the words “ the treasury ” the numerous county treasuries of the State. They manifestly meant the treasury of tíre State. Most of the. provisions of the 10th article relate to raising revenue to support the State and to maintain its credit. The words “ the treasury ” occur in two other sections.of this article. Thus, in section 8: “No money shall be paid out of the treasury until the same shall have been appropriated by law.” And in section 15 : “ The ,principal arising from the sale of all lands, donated to the State for school purposes, -shall be paid into the treasury, and the State shall pay interest thereon for the support of schools, at the rate of six per cent, per annum.” No one can fail to see that the treasury of the State is meant by the words “ the treasury,” as used in these sections, and it is equally clear that their meaning is the same as used in the seventeenth section.

That the legislature has the power, under this section, to-impose a State tax upon such privileges, pursuits and occupations as are of no real use to society, we have no doubt. The usual mode of imposing such a tax (if it may be called a tax) is t-o require persons desiring to exercise such privileges, or to engage in such pursuits or occupations, to obtain a license, at some fixed price, and to subject them to penalties for exercising the privilege or engaging in the pursuit or 'occupation without obtaining the license. If the Legislature had thought proper to require wholesale dealers in spirituous liquors to pay into the treasury’of the State a compensation to the public for the privilege of engaging in such pursuit, we should be, slow to hpld that such an activas unconstitutional, on the ground that such pursuit is of real use to society.

But the act complained of in the bill is not an attempt to raise a State revenue by a tax upon dealers in liquors. It provides that, “ There shall be levied and collected as a county taz, the sum of one hundred dollars from each and every pier-son selling, either at wholesale or retail, any ardent or vinous liquors (excepit tlie same is sold exclusively for medicinal purposes) in any county of this State, for the term of one year or less.” Act of 26th of March, 1871, sec. 154. If this act is in conflict with any clause of the Constitution, we have not been able to find it. The Constitution of the State is a restraining and not an enabling instrument, and it maybe said, in general terms, that the G-eneral Assembly may pass any law which it is not - prohibited from passing by the Constitution of the State, or the Constitution of the United States. State vs. Ashley, 1 Ark., 513.

The authority of the Legislature to regulate the exercise of privileges, or the following of pursuits and occupations, does not fall properly within its taxing p>owers, but within its p>olice powers.

Pursuits that are pernicious, of detrimental to pmblio morals, may be prohibited altogether, or licensed for a compensation to the public.

So persons desiring to exercise privileges, or engage in callings really useful to society, may be required to obtain license, and pay a reasonable compensation therefor. Such ¡as the keepers of ferries, draymen, hackmen, and even persons who furnish meat or bread to communities. Cool. Con. Lim., 200. The power to license such privileges and pursuits has usually been conferred on county and municipal authorities.

The distinction between the raising of a State revenue by a tax'upon property, and the licensing of privileges and pursuits by the local authorities, was clearly stated in Washington vs. The State, 13 Ark., 761.

Here, as in most, if not all the States, retail dealers ire liquors have been required to obtain license, and to pay a compensation therefor, and under the present, as well as former Constitutions, laws requiring such payment for license-have been deemed valid and constitutional. Henry vs State, 26 Ark., 523.

By the 154th section of the act of the 25th March, 1871, tlie Legislature attempted to put wholesale dealers in liquors upon a footing with retail dealers, but there has been a failure, so far as we can find, to provide any mode of enforcing-the act against the wholesale dealer. No man is obliged to-apply for license to retail liquors, nor is he obliged to áccept and -pay for license, if issued by the proper authority, and offered to him by the sheriff or other officer. But if he engages in retailing without obtaining the license, he is liable-to be punished by a criminal procedure. Gould’s Digest, Ch. 169.

So, under the chapter relating to ferries, in Gould’s Digest, no man was bound to apply for or accept and pay for a license to keep a ferry, but if he kept a ferry -without obtaining a license, he could collect no toll, and was liable to a fine for keeping an unlicensed ferry. Sections 4, 14, Chap. 70. Other illustrations might be given, but these are deemed sufficient.

But no provision has been made by law to punish, criminally, a person who engages in selling liquors, in quantities larger than a quart, that’we are aware of.

It seems, hq-wover, from the allegations of the bill, that'tile-clerk issued, and the sheriff offered to appellants a license,, and on their refusal to accept and pay for the license the sheriff was about to proceed to levy upon and sell their property,, to make the one hundred dollars which he demanded for the license. It would he a novelty for a sheriff to levy upon and sell property with a liquor license. Such process is unknown to the law, even under the Code, which has made sad havoc of most of the common law forms. .

A collector, armed with the tax-book, aiid the process which accompanies it, in the nature of an execution, (Gossitt vs. Kent, 19 Ark., 602) may sell the property of all delinquent tax payers, regularly assessed and put upon his tax-book. But licenses are not returned upon the assessment list, nor placed upon the tax-book. They are simply made out by the clerk in blank, and handed to the sheriff to be supplied to such persons as desire them. At least, such was the course pursued in this case, as alleged by the bill. See sections 155-6, Acts 1871, p. 180.

The decree of the court below is reversed, and the cause remanded with instructions to reinstate the bill and award the injunction prayed for.

Stephenson, J., being disqualified, did not sit in this case.

Hon. E. II. English, Special Jiul/je.