text:
    Crawford, Auditor, vs. Carson, Ex., et al.
    1. Collector oe Revenue: Liability of Ms sureties.

    The sureties on a collector's bond are not bound by the ascertainment by the auditor upon his own éx parte investigation, of the collector’s indebtedness for moneys received by him for liquor licenses.
    2. Suits Against the State : Injunction against.

    Sec.- Gantt's Digest does not prohibit chancery courts from enjoining individuals assuming to act in behalf of the state and as state officers, from acts not authorized by law, and which are productive of irreparable mischief.
    3. "Vexits : Local jurisdiction.

    The circuit court of the county in which lands are wrongfully levied on under a distress warrant illegally issued by the auditor of the state, has jurisdiction of a suit to enjoin the sale.
    4. Mandamus : Use of writ.

    The writ of mandamus is a writ to compel the performance of an act or duty, and not to prevent it; and our Code does not. intend that it shall take the place of an injunction.
    5. Collector oe Revenue: For what liquor licenses liable.

    A collector of revenue is liable, and his sureties with him, for all moneys collected by him on liquor licenses issued up to the end of his term of office, although they do not expire until the end of the calendar year; and each set of sureties, iu several successive terms, is liable for liis collections during the particular term for which they are sureties.
    6. Distress Warrant: When auditor may issue.

    The auditor can issue a distress warrant against a collector and Ms sureties for the amouut due the state for liquor licenses collected by Mm, only upon the certificate of the county clerk showing the amount found by his settlement with the county clerk to he due. In the absence of such, settlement and certificate, or if they be fraudulently obtained, the auditor can not himself ascertain the amount due and issue a warrant of distress to collect it. If the county court fail to enforce a settlement, it may be coerced to do so by a superior court. If the settlement be fraudulent, the auditor may, and should, have it corrected by proceedings in equity.
    7. Demurrer : Mistake of remedy: Mandamus: Injunction.

    It is no ground of demurrer that the plaintiff mistakes -his remedy in adopting proceedings by mandamus to effect the purpose of an injunction. But in such case the court should, of its own motion, dismiss the petition, unless it be reformed and transferred to the equity docket.
    APPEAL from Jefferson Circuit Court.
    Hon. J. A. Williams, Circuit Judge.

      Attorney General, for appellant.

      ■MeGain, contra.

   Eakin, J.

James E. Vaughan had been duly elected sheriff and ex-officio collector of Jefferson county.

On the twenty-eighth day of November, 1874, he, together with Samuel Carson, now deceased, and the other appellees, as his sureties, executed a bond to the state of Arkansas in the sum of $370,000, conditioned to be void “if the said James E. Vaughan shall faithfully perform the duties of collector of the revenue for the county aforesaid, for the year 1874, and shall well and truly pay over alt moneys collected by him by virtue of his office, according to .law.” Preceding this condition is a recital of the due election of said Vaughan, and his commission as sheriff, and that he .was, by virtue thereof, ex-offcio collector of the revenue within and for said county, for the time prescribed by law. It was further provided “that in case the said James E. Vaughan, as collector as aforesaid, shall fail or refuse to pay into the state treasury the amount which shall or may be found due from him as such collector, to the state, it shall and may be lawful for the auditor of state, within fifteen days after the time the said collector is required by law to make his annual settlement with the state, to issue a warrant of distress against said collector and his securities, as is now provided by the act regulating the assessment and collection of the revenue of the state of Arkansas, approved April 23, 1873.”

The act referred to (sec'.79) made the sheriff of each county “ex-officio collector of all taxes assessed on the tax-book of his county,” and required him, before entering upon his duties as collector of taxes, to give a bond, conditioned, “ for the faithful performance of the duties of his office, and for well and truly paying over all moneys collected by him by virtue of his office.” (Sec. 80.) Provision was made for the appointment of some other person as collector, in case the sheriff should fail to give the bond (sec. 81), and he was prohibited, under a severe penalty, from collecting any taxes not stated on the tax-book, or in excess of those stated, except as authorized by the act. (Sec. 88 ) His term of office was to expire “on the last day of the month in which they are required to make their final settlement for the last tax-book, which is to be collected by them and receipted for during their term of office as sheriff” Sec. 84.

County taxes were imposed, and licenses required by the act, upon certain occupations and exhibitions; and taxes, both for the county and the state, of $100 each, were imposed on retail liquor licenses — that for the state to be paid in United States money, for the benefit of the sinking fund. (Sec. 159.) The clerk was directed to issue, from time to time, blank licenses to the collector, charging him with the amount, which the collector was, on payment of the tax, to fill "up and deliver. (Sec. 159) It was made the duty of the county court (then board of supervisors) to cause the collector, at each regular term of the court, to settle his account of all blank licenses, crediting him with those returned; to ascertain- the amounts due the state and county, respectively, and to enter the settlements of record. If he failed to settle, he might be attached until he did; and immediately after each settlement with the county court, it was made the duty of the clerk to certify to the auditor the amount due the state, which amount the collector was required to pay into the state treasury within fifteen days thereafter. Secs. 160, 161.

Provisions were made by which collections by the sheriff "of fines, penalties and forfeitures, and, by clerks, of taxes -on writs, etc., and other sums coming into their hands, were to be paid over to the collector. Secs. 162 to 169.

By a previous section of the act (see. 110) it had been made the duty of the collector, immediately after his settlement with the clerk of the court, of the charges against Trim in the tax-books, and before tbe fifteenth day of June in each year, to pay over all moneys found due at such settlements to the persons entitled thereto. After the foregoing provisions with regard to licenses and other collections not included in the tax-books, it was provided (by sec. 171) that if the collector should “fail to pay the amount due into the treasury, and produce the treasurer’s receipt, to the auditor, therefor, within fifteen days after the settlement required in sec. 110,” he should forfeit his commissions and 25 per cent, on the amount, and also interest on the amount wrongfully withheld, at 5 per cent, per month from the time it should have been paid, to actual payment. The auditor was directed to charge the delinquent accordingly, and authorized to collect the amount of principal and forfeitures, as follows:

■ Immediately after the time specified in -section 168, in -each year, the auditor was required to issue a distress warrant against the delinquent and his sureties, to the coroner, or a constable of the county in which they inight reside, and which was to be executed by the officer by levy upon and sale of the lands and goods.

The section (168) to which reference is made, specifies no time for anything, but provides that when money shall be received by the collector from any other officer, such as sheriff or clerk, he shall receipt for the same, stating how much is for the state and.how much is for the county, and the particular fund to which it belongs.

Such are the prominent features of the act under which this bond was given, and by which the liability of the obligors, and the powers and duties of the auditor are to be controlled.

. On the thirty-first day of July, 1877, appellant, as auditor, issued a distress warrant to the coroner, or any constable of Jefferson county, against Vaughan and his sureties in the bond, reciting that upon an adjustment of said Vaughan’s account a3 collector for Jefferson county in the state of Arkansas, there was found to be due from him to the state “ for revenues collected, or which ought to have been collected by him for the year 1875, the sum oí fifty-three hundred and sixty-six dollars and eighty-five cents,” including amount of commissions forfeited, “and 25 per cent, on the amount due and unpaid at the time fixed by law for-the full amount and payment” thereof; “and a part of the above-named sum, to-wit, the sum of forty-two hundred and ninety-three dollars and forty-eight cents, bears-interest according to law at the rate of 5 per cent, per month, from the first clay of July, 1875, until paid.” The writ then proceeds to command a levy and sale of the effects of the defendants therein, to pay said sums, etc. It came to the hands of Anthony Johnson, a constable, on the sixth of August, 1877, who levied it upon a large amount of real property, advertised the sale to take place at the court-house door in Pine Bluff, on the eighth of September following.

Whereupon the sureties of Vaughan presented a petition to the judge of the circuit court of Jefferson county, reciting their execution of the bond, and alleging that said Vaughan did, in fact, make his annual settlement in June, 1875, with the auditor, as required by law, for all state taxes and revenue collected in the year 1874, and obtained from the auditor vouchers, which they exhibit, of full payment and settlement of all general revenue, sinking fund, common school fund, and interest on the' ten-year bond fund for the year 1874. They claim that they are not bound in any manner whatever for the revenue of 1875,. and as to liquor license, only bound for so much thereof as the collector may have received during the period between the twenty-eighth of' November and the last of December of that year; that the liquor license tax was tp be collected for the calendar year, and in that time Vaughan had not collected any. They insist further that if there had been any delinquency for which they were amenable to a distress warrant, it should have issued immediately upon the failure of the collector to make his annual settlement and pay the amount díte into the treasury; and that the auditor had no right to issue the. same after two years. They say that the county clerk never complied with the revenue law (sec. 108 of act of 1878) in certifying io the auditor any balances due to the state from the collector other than those for which he had received his quietus as aforesaid. It is-further objected that the bond is not in accordance with the statute. They complain that they have relied upon the quietus given to the collector, and that the distress warrant was issued against them without notice and an opportunity of being heard, and without anything be'ore the auditor of an authoritative character, based upon documents, returns and feeords, but, that, on the contrary, all the records in the auditor’s office -showed conclusively that the collector had accounted for and paid off all the taxes and revenue for the year 1874, and that the quietus of the collector should be conclusive, unless changed by a direct-judicial proceeding to correct an error or mistake.

They deny that the collector failed or refused to pay over any moneys collected by him for the year’1874, but that he did offer to pay the then auditor all the liquor license tax collected by him up to the date of his settlement, and that the auditor declined to receive the same,, because said liquor license tax was not charged against the collector upon the records of the auditor’s office.

They say that on the fifteenth of’December, 1874, there were placed in the said collector’s hands blank liquor licenses to the amount of $9,500, and previous thereto to-wit, in November, $10,400 worth, all of which latter licenses had been returned to the clerk’s office, and he had been credited with the same ; and that not one of the former lot of $9,500 had been disposed of by him between the execution of the bond and the last of December, 1874, but that thirty-eight of them were disposed of between the first of .lanuary, 1875, and the fifteenth of June, and the balance afterwards, except those returned, and they deny their responsibility for those disposed of in 1875.

They say the collector was amply solvent in June, 1875,. but has since become a bankrupt, and'is now insolvent. They moved for a writ of mandamus and for a temporary order in vacation, preventing the constable from proceeding with the sales; and that the auditor be ordered to cease prosecution of the distress warrant until the motion for a writ of mandamus can be heard and decided in court.

Upon hearing of the motion in vacation, upon notice, the judge granted the temporary orders as asked, and gave notice to defendants to appear and show cause in court why the mandamus should not be made peremptory.

Defendants pleaded to the jurisdiction of the Jefferson •circuit court:

1. Because the auditor’s office was at Little Rock, the ■seat of government.

2. Because the court had no authority to review his action in issuing the distress warrant.

The plea was overruled, and defendants then demurred to the petition :

1. Because plaintiffs had mistaken their remedy.

2. Because the proceeding is really against the state, seeking to affect its revenue as adjusted by the auditor.

3-4. Because the petition shows that the auditor exercised an official discretion which can not be controlled by mandamus.

5. ■ The petition does not negative the idea that at the time of executing the bond the collector had no money in Lis hands for the revenue of tire year.

6. Petitioners do not show any authority vested in them' to-inquire into the acts of the auditor in adjusting the settlement of the collector’s account.

7. Because they deny the facts contained in the warrant, which are conclusive.

8. Because their remedy is to have the facts certified to the general assembly by the auditor, as provided in see. 2778, Gantt’s Digest.

9. Because they do not show that they have a clear legal right and no other remedy.

10. Because the petition is insufficient in law.

The demurrer was overruled, and the defendant, Crawford, responded to the petition, denying in detail most of the matei’ial allegations of the petition, insisting that the liability of Vaughan and his sureties is not to be confined to liquor licenses disposed of before the last of December, 1874, but extends to all received by him up to the time of his settlement in June, 1875. ' He says that the distress warrant was based upon information “ official and otherwise” now on file in his department. He says the books in the Jefferson, county clerk’s office had been tampered with, and a false and fraudulent return made to the auditor, and that it was only a short time before the issuance of the distress warrant that he was enabled, by returns from the clerk’s office, to ascertain the extent of Vaughan’s deficiency. He denies, further, that the distress warrant was-without notice to petitioners, but says that Bell, acting for. himself and the others, had notice, and that the delay in issuing it was at his instance. He insists that Vaughan was delinquent in his settlement in 1875. He says that for balance of liquor licenses which came to Vaughan’s hands during the time covered by the bond, and which includes $4,700 issued in 1875, he is due the state $4,293.48, for which the distress warrant issued.

It appears from the papers filed in the ease, and brought up in the transcript, that the distress warrant complained of is one of three issued by the auditor against Vaughan and three separate sets of sureties upon his bonds as collector for the years 1873,1874 and 1875. So far as they apply to this particular case they show that on the fifteenth of June, 1875, Vaughan did come, by his deputy, before the auditor, and made settlement, and paid into the state treasury all sums with which he stood charged upon the auditor’s books, and obtained his quietus. This heexhibi'ted to his sureties of that year, who afterwards rested upon it until Vaughan became insolvent. At the time Vaughan made his settlement in 1875 no charges against him for liquor licenses had been reported by the clerk of the county, and none appearing, none were, of course, paid. Subsequently considerable sums on liquor license account were paid into the treasury by Vaughan through his sureties, and it was ascertained that he had returned licenses to the clerk for. which he had been credited. The books of the county clerk had been kept in confusion with regard to the liquor license account, and no regular, formal report had been furnished the auditor at the times required by law.

Defendant Crawford, who has been auditor since January 8, 1877, and who issued the writ, testifies: That Vaughan, on the seventeenth of that month, brought to his office his papers and statements, showing, as he said, the amounts collected by him on account of the liquor licenses for the years 1878, 1874 and 1875. The auditor allowed all his credits except the sum of $6,500, which he rejected upon the affidavit of Paul Jacko (who had been clerk of the county court of Jefferson county since the seventeenth of October, 1876), declaring the same fraudulent. After rejecting this credit, the three distress warrants were issued for the three several years against Vaughan and'the three sets of sureties, bio full settlement had ever been made for either of the years, showing the amounts due for that year, on liquor licenses. Credits of payments made by Vaughan, and of liquor licenses returned to the county clerk, were about that time allowed by the auditor, and apportioned on the accounts of the three years. He says he made this distribution because he deemed it just and equitable, and .because there was no good reason why the whole amount should-have been placed to the credit of any particular year. He says that as auditor he has made every effort to ascertain the correct condition of Mr. Vaughan’s accounts as to liquor licenses. Much confusion and uncertainty existed regarding them, and he had great difficulty in arriving at a correct understanding. He employed two attorneys to assist him, and finally, on the twentieth of February, 1877, sent a special agent to Jefferson county to make an investigation. This agent made a report of the facts on the twenty-fourth of that month. “On this report,” says the auditor, “on the information of the attorneys, and from information and data from various other sources, I reached the conclusion as stated, and upon which the distress warrant was issued.”

com-bo-

j?fegis sure"

There is other evidence (accepted as such, at least, in case) going to raise a suspicion of fraud; or, at least, showing great carelessness and looseness in the management of the liquor license accounts in Jefferson county; and little doubt is left on the mind that the collector, Vaughan, is behind, on that account, to the extent claimed by the auditor, and that the sureties on his bonds are accountable for his misfeasance, neglect or fraud. But as to these matters the sureties have never as yet had day in court, and can not be precluded from showing differently, or from insisting, each lot for themselves, that the liability should be upon the others. They are not -bound by the apportionment of credits made by the auditor upon his own ex" parte investigations.

The court upon hearing, made the writ prohibiting further proceedings on the distress warrant peremptory, and the auditor and constable appealed.

2, Suits Against Tni! State:

Injunction against.

3. Venue:

Local jurisdiction.

Several questions are presented by the record, ail of which are not important to the decision of this court; but inasmuch as many of them concern the public interests to a grave extent, and are such as Our public officers should fully understand, they will be noticed more in detail than would otherwise be considered necessary.

' By section 2 of an act of January 19,1855, entitled an act “ to protect the interests of this state,” it was forbidden for any person or corporation to sue, or implead, or move against the state, in chancery, or against any officer or person acting for or representing the same, except at law.”

The state had then become complicated in embarrassments and difficulties of a purely business nature, arising out of her connection with and liabilities for the State and • Real Estate banks ; and was endeavoring to save herself, as far as possible, out of the assets of those institutions. The act was passed to facilitate her movements in this regard, and to avoid vexatious interference on the part of bondholders, or others, through the chancery courts. She assumed herself the power and prerogative to do justice in the premises, and was unwilling that she should be declared' a trustee. This was only the assertion of the common law prerogative of the sovereign, and comported with her dignity. The section is to be construed in that connection, which is shown by the whole body of the act, which has reference alone to those bank matters. There is nothing in this section to prohibit courts of chancery from enjoining individuals assuming to act in behalf of the state and as state officers, from acts which are not authorized by law and which may produce irreparable mischief. The property levied upon was mostly real estate of Jefferson county. The sale under a distress warrant would have clouded the title of the defendants therein, and the circuit court of said county had jurisdiction to inquire whether the distress warrant was legal, and, if not, to enjoin its execution.

*\ung¥AX~

writUse of

Petitioners, however, doubting of this, did not seek their remedy by bill in chancery and injunction, but adopted the statutory remedy of mandamus. This, under our Civil Code, is now defined to be “ an oi’der of a court of competent and original jurisdiction, commanding an executive or ministerial officer to perform an act, or omit to do an act, the performance or omission of which is enjoined, by law. Gantt’s Digest, sec. jl50.

A writ of mandamus, in name and nature, and at common law, is something of a mandatory nature, compelling an áct, Blaokstone says (Book III, p. 110.) that it is a writ requiring the person, court or officer, to do some particular thing, therein specified, which pertains to their office or duty. The writs to prevent the doing of an act by courts, or individuals, were those of prohibition and injunction. Mandamus was a writ of a moving nature, the proper writ to enforce obedience to an act of parliament, and hence only proper to compel quiescence wfiere an act is itself, mandatory of something negative, where it specially directs the not doing of a thing which might be natural or otherwise proper. It would be to suppose that the legislature, in abolishing forms of action, meant also to abolish all meaning of terms and distinctions of things, to suppose that it meant in the case of ministerial and executive officers, to make the writ of mandamus perform a function hitherto unknown, and take- the place of an injunction.

The act must be confined to eases where the omission of something is positively and specially enjoined by express language. That was not the case in this instance, and the petitioners have mistaken their remedy. But the petition, although misnamed, contains all the essential elements of a bill of injunction, and, if so presented on the equity side, discloses matter of which the circuit court of Jefferson county had jurisdiction. The prohibition against suing the state, or any officer representing her, in chancery, must be confined to such suits as seek to charge the state with some liability or duty, or to hold her or her officers as trustees of effects in their hands. Such and such only was the object of the statute. It would open the way to intolerable tyranny to exempt officers of the state from injunctions to restrain them from illegal though colorable acts of authority.

ENüE-1'KEV"

ii&wkey;yhfifc cense Ha-

With regard to the bond itself, it seems substantially in accordance with the law of 1873, and such as a distress warrant might be based upon if the statutory conditions alqsen- And-with regard to its extent, it covered the Avhole term of office of the collector. There is no reason why he should not be chargeable,-and his sureties with him, for moneys collected on licenses issued after the first of January, 1875. It was his duty to collect the money upon them and account for it, during his term of office, although they did not expire until the end of the calendar year. The bond recited that Vaughan had been commissioned as sheriff', and was ex-officio collector for the time prescribed by law; and \vas conditioned not only for the faithful performance of his duties as collector of the revenue for the year 1874, hut also, that he should well and truly pay over all moneys collected by him by virtue of his office. Each set of sureties was bound and subject, under proper conditions, to distress, for all sums which he collected, or stood charged with, during the particular term of office for which they had become his sureties.

wakSt^

dHorenmay lssue'

It remains to consider the distress warrant itself, and the circumstances and grounds of its issuance. The power of the state to provide that summary method of coercing the paying in of its revenue is no longer questioned. It is not considered to be in violation of the constitutional provision against taking property without due process of law. Such summary proceedings are'justified by the necessity of the government. When exercised in aid of the revenues of the commonwealth, they are for the benefit of all. They have no character of partiality or favoritism. ■ They become, when confined to the sovereign, themselves due process of law.

But they derive all their validity from the statute. They are dangerous to the citizen; sustained on one side by a high public policy, they aie guarded on another by countervailing policies of equal potency.' They can only be used under the circumstances and conditions prescribed. The law itself must confer the power to issue them, and the obligors, in a bond to the state, can not make a binding agreement, to he subject to them under any other conditions than those prescribed by law.

Waiving, for the present, the inextricable confusion resulting from the mistaken cross-references to sections as they exist in the original and pamphlet acts of 1878, and taking them as partially cured by their arrangement in Gantt’s Digest, we find the following system:

Eor licenses sold, the collector was directed to settle with the county court at each term. The duty was imposed on that'tribunal, in the first instance, to ascertain the amount due from him on that account, as well as moneys received from clerks, recorders and other officers, on account of taxes, fines, penalties and judgments. These settlements were required to be entered of record, so as to show what is clue the state and county respectively. This settlement might be compelled by attachment. It was made the duty of the clerk immediately afterwards, to certify to the auditor the amount due the state, and of the collector, within fifteen days thereafter, to pay the same into the state treasury. Nothing could be more explicit than this. It made the certificate of the clerk the only basis upon which the collector could be required to settle with the auditor. That certificate was based upon the determination of a court of record, of competent jurisdiction, and, of course, conclusive until reversed or annulled. No special provision was made to authorize a distress warrant by the auditor in case of failure to pay in amounts found due on these quarterly settlements. If they were fraudulent (and it was the duty of the auditor to inquire into it, if he supposed they were), he might institute proceedings through the prosecuting attorney of the district to have the record corrected by bill in chancery or other appropriate proceeding; but he had no authority vested in him to disregard the determination and record of the county court, restate the account, and issue a distress warrant for the balance, as restated. The judgment and record of the county court must inure as well to protect the collector and his sureties as to charge them.

If the county court should fail in its duty of compelling a settlement, it might be coerced thereto by superior courts, and the matter put in proper train. It does not follow that the auditor must assume the duty of the county court and perform its functions in this regard ; and, upon ascertainment of a balance, execute his judgment by distress warrant. However just this .may appear, it is simply unauthorized by law, and its justice and safety are not questions for the court. Doubtless the auditor may, and should search out all sums due the state, and deserves support and commendation in his efforts to recover them; but regular means are provided by suit. The extraordinary remedy must be confined to its appointed channel. See sec. 160 et seq.

There being then no special provision for a distress warrant to collect the quarterly balances which were required to be- paid after each settlement, we proceed to inquire whether there be, in the act, any1 more general provision for a distress warrant, which will include these balances on settlement, or which would have been shown to be due if settlements had been honestly made.

A provision authorizing any distress warrant at all is only found in see. 178* To trace its scope is not easy, on account of the confusion of its references. It is made the duty of the auditor to issue it against “such delinquent and his sureties,” “immediately after the time specified in see. 168” “to satisfy the amount with which such delinquent is chargeable, together with 5 per cent, per month thereon until paid,” etc. The first thing apparent is the care taken by the state to enjoin prompt action on the part of the auditor. He is not granted any option to extend the time. This, however, is for the benefit of the state, and his laches could not be complained of by the collector or his sureties, unless upon some special equitable ground; certainly not if the delay was unavoidable, or made by consent of the sureties.

Ve must look elsewhere for the “time” and the amounts,” and delinquents referred to. Sec. 168 affords no light on either. It was probably meant for 171, which, in this act, corresponds with 168 of the former revenue act of 1871. Assuming this to be so, without deciding it judicially, we find the time specified for paying money into the state treasury and taking his receipt, by collectors, to be “ within fifteen days after the settlement required in sec. 110;” and we find, also, the mode of computing the “ amount” with which the delinquent is to be charged.

' This section embraces, too, as delinquents, all collectors and others bound by law to pay money directly into the state treasury, and who fail to do so. It would cover sums collected upon liquor business and ascertained to be due the state by the county court. To fix the time, however, we must go back to sec. 110, which provides for no settlement itself, but refers to 11 such” settlements; and tracing the sections to the last settlement provided for, we find them to- be: First, that directed to1 be made by the collector with the county clerk (in sec. 108) immediately after the sale of lands for delinquent taxes. This settlement was to ascertain the balances with which the collector stood charged on the tax-books, which were to be certified by the clerk, and the settlement itself reported to the county court and made matter of record ; and, second, that which (by sec. 109) the collector was required to make, immediately afterwards, with the auditor, for state taxes charged on the tax-book.

This last settlement is doubtless the one referred1 to in sec. 171, and required to be made with the auditor immediately after the sale of delinquent lands of each year, and as soon as practicable after the settlement of the county revenue with the clerk. It fixes a point of time in each year, after which, in fifteen days, all persons bound by law to pay money directly into the treasury of the state must do so, or suffer the penalties and be amenable to distress. But it can not be said of a collector that he is bound to pay money directly into the state treasury until the balance be shown by the tax-books and settlements made by them, or by certificates of the county clerks of settlements made of record in the several counties, or by the judgment of some competent court in a suit. The auditor is not vested with any judicial power to inquire into frauds and to determine definitely thereon what sums may be justly due the state, and issue executions therefor.

7Dbkukw;b

of remedy? injunction

The state, however, is not left remediless in any case. It is the duty of the. auditor to be vigilant in securing the dues to the state, and the steps taken by the defendant, Crawford, in this ease, have all been such as were commendable, up to the time of the issuance of the warrant.

It was his duty to be watchful of official delinquencies, and to direct prosecutions in the name of the state for all such as affected the assessment, collection and payment of the revenue. He mistook the remedy in this case, in supposing that a distress warrant would lie.

It was not ground of demurrer that the complainants, on their part, had mistaken their remedy in adopting the proceeding by mandamus. (See sec; 4461 Gantt’s Digest; also, sec. 4564). But it is the duty of the courts in clear cases, where the entertainment of a writ in the form presented would lead to a confusion of all boundaries, between proceedings at law and in equity — and between ordinary actions and special proceedings — to refuse, of their own motion, to do so. This is due to a fair experiment of the Code, that it may be administered in its true and rational extent, and perfected as a harmonious system.

In cases of doubt, or where there are mingled elements of law and equity, parties may be held to abide by proceedings to which they have not objected, but it would lead to an utter wreck of all system, and bring the administration of justice into contempt, to allow parties, by tacit consent, to ignore all order and determine their controversies by any form of proceedings, upon which ever side of the court they may elect. No such looseness in this case ■was intended by court or attorneys. The peculiar terms of the Code on the subject of n^andamus have led to the error, but the principle applies.

The court should have refused to proceed upon the writ of mandamus, unless the petition had been reformed and transferred to the equity side. The proceeding by mandamus is extraordinary, and should not be used except in cases where there is no other appropriate remedy. Here was a case where real property was about to be seriously clouded by improper proceedings. Perhaps, also, the remedy by certiorari, as the same lias been enlarged by statute, would have sufficed.

Doing here what the court below should have done, we will dismiss the petition. After the views herein expressed, it may be well presumed that the auditor will proceed no further upon the distress warrant, but recall the warrant and proceed by suit, or take sueh other steps as may seem expedient and meet.


source: Caselaw Access Project

author: English, 0. J.

license: Public Domain

text:
    Sweeney vs. The State.
    1. Becords: Amendable after appeal or writ of error.

    The record of the circuit court may be amended so as to make it speak the truth, in a criminal-as well as in a civil case, after appeal or writ of error (the prisoner in a criminal case being brought into court), and the amended record brought up to this court by certiorari.

    2. Murder: Malicious hilling not necessarily murder in the first degree.

    No killing is murder unless done with malice, and the statute-having made-two degrees of murder, it follows that a malicious killing is not necessarily murder- in the first degree.
    3. Instructions : Should not be repeated.

    It is needless for the court to multiply instructions by repeating in substance the same declaration of law.

      4. Malice : When implied.

    ■When it is shown that the killing was done with a deadly weapon, and no circumstances of mitigation, justification or excuse appear, the law im- • plies malice.
    •■5. Jury: Sow judges of the law in criminal cases.

    It is the province of the court in all criminal cases to declare the law, .and of the jury to consider and weigh the facts in evidence, and to apply the law as given them by the court, to the facts, in making up their verdict, and in that sense they are judges of the law and the evidence.
    ERROR to Monroe Circuit Court.
    Hon. J. N. Cypert, Circuit Judge.

      M. T. Sanders, for plaintiff in error.

      Attorney General Henderson, contra.

   English, 0. J.

John Sweeny was indicted for murder in the circuit court Of Phillips county, at the May term, 1879, and after he had been arraigned and pleaded not guilty, the venue, on his application, was changed to the ■circuit court of Monroe county.

He was tried in the latter court on the eighth of April, 1880, and the jury returned a verdict, which was recorded by the clerk, as follows : “We, the jury, find the defendant guilty as charged in the indictment.”

He filed a motion for a new trial, which the court overruled, and after he had taken a bill of exceptions, he was sentenced to be hung on the fourteenth of May, 1880.

On the twenty-second of April, 1880, he sued out a writ of error, and, after its return, this court, upon inspection ■of the transcript, awarded a temporary supersedeas to suspend his execution, until the errors complained of couidbe heard and determined.

On a day of the September term, 1880, of the Monroe ■circuit court, the prisoner was brought into court, and the attorney for the state filed a motion to amend the record in the matter of the verdict, so as to make it speak the truth, showing that at the trial on the eighth of April, 1880, the. jury in fact returned into court, in writing, the following verdict:

“We, the jury, find the defendant guilty of murder in the first degree. %

“(Signed,)' J. L. Robertson, Foreman.”

And that by an error of the clerk the verdict was recorded as above stated.

Both the prisoner and his counsel expressly waiving all further notice of the filing and prosecution of the motion, it was taken up and heard by the court, and upon the evidence produced, the court ordered the verdict as shown to have been actually returned by the jury, to be recorded by a nunc fro tunc entry, and it was so done.

It appears from a bill of exceptions taken by the prisoner, that on the hearing of “the motion to amend the record, W. S. Dunlap, then, and when the case was tried,clerk of the court, testified that he was present when the jury returned into court - their verdict in the case, which was indorsed on the transcript sent’ from the circuit court of Phillips county, on change of venue — and here the original verdict in writing was produced and shown to the court, in words following:

“We, the jury, find the defendant guilty of murder in the first degree.

“ J. L. Robertson, Foreman.”

The witness further testified that the papers in the case had been in his custody from the time the verdict was returned to that day, and that the verdict had been’in no respect altered or tampered with; that it was by his own clerical misprision in writing up the record of the proceedings in the' case at the last term that the record failed to show the degree of murder of which the jury found defendant guilty.

1.Records:

Amendable after appeal or writ of error.

It was objected on the part of the prisoner that the amendment of the record moved for could not be made after the expiration of the term at which the verdict was rendered, and after writ oi* error sued out and returned; but the court overruled the objection, and upon the above evidence, as stated in substance, ordered the amendment to be made.

Afterwards, on suggestion of the attorney general, a certiorari was sent down, and a transcript of the record as amended, embracing the proceedings on the motion to amend, returned to this court.

I. It is well settled in this court that the record of the circuit court may be amended, so as to make it speak the truth, in a criminal as well as in a civil case, after appeal or writ of error, the prisoner in a criminal case being brought into court, and the amended record brought up to this court by certiorari. Freel v. The State, 21 Ark., 213; Binns v. The State, ante.

II. Sweeney was charged in the indictment with murdering one "W. A. Fisher, on the eighth of June, 1878, in Phillips county, by cutting him with a knife, etc.

It was made ground of the motion for a new trial that the verdict was not warranted by the evidence, which is set out in detail in the bill of exceptions.

Mark Wiseman, a witness for the state, testified; in substance, that on the eighth of June, 1878, about half a mile from Marvel, in Phillips county, when he was coming out of a big gate on John Kendall’s farm, on the public road, he saw deceased,W. A. Fisher, and defendant, John Sweeney, riding side by side along the road. Heard defendant say to deceased, “You stole my wagon.” Deceased made no reply that witness heard. In an instant defendant reached over towards deceased, and struck him a back-handed lick about the throat with a knife, reaching rather around and in front of deceased. Just as the blow was given, deceased fell or leaned forward, and dropped his hands on the shoulders of his mule. The mule' began to caper, and defendant jumped off of his horse and started after deceased, cutting at him, and kept on after him until Mr. Macon stopped him. Defendant struck deceased just below the gate, and he fefi just above and near the gate. Just after Mr. Macon stopped defendant from advancing on deceased^ Jeff Dean started towards defendant’s horse to catch him, when defendant said to Dean, “ Don’t you touch my horse, or I will cut your damned throat.” Dean got back, and defendant got on his horse and rode on up the road. At the time defendant struck deceased with the knife on the throat, he was doing nothing to defendant, nor making any demonstration that witness saw, hut seemed to be trying to get out of defendant’s way. Witness was in the gate, about twenty or thirty feet from them.

Willis Macon, witness for the state, testified that both defendant and W. A. Fisher lived on his farm at the time the latter was killed'by the former. Witness overtook them going to Marvel together in the morning of the eighth of June, 1878, and they appeared friendly. On getting to town, defendant and witness “took a drink,” and the three “ took a drink ” in the afternoon before they left town, deceased treating. Defendant had taken two drinks of whisky that afternoon that witness knew of, and may have taken more, but was not drunk at the time of killing Fisher. The three left for home together, and on the way, about half a mile from Marvel,when deceased and witness were riding together, defendant approached them, and said, “Are you talking secrets ?” Deceased answered, “No. Which of us do you want to see?” Defendant replied, “You.” Deceased then dropped back with defendant, and witness rode on ahead of them about forty or fifty yards, when he heard deceased make an exclamation, which sounded like he was hurt or surprised. Witness turned instantly around and looked back. He thought perhaps they were quarreling, and had heard that they had had a disagreement about a wagon. On looking back, he saw deceased fall forward on his mule, and rest both hands on its withers, and defendant striking at him. Deceased’s mule then commenced backing and increasing its speed, until it got in about twenty or thirty feet of witness, when deceased raised his • head slightly and said, “ This fellow has cut me,” rather halting on the last word. As he raised his head, witness saw the blood spurting from his neck. It spurted eight or ten feet, and in a circle as his mule turned. In a moment after witness saw the blood spurting, Fisher fell from his mule — a half slide and fall — and when he struck the ground, was apparently dead. Witness thought he was dead when he fell from his mule, but he lived not exceeding five minutes after he was cut. After witness saw defendant striking at deceased, defendant jumped from his horse and ran towards deceased, with a knife drawn in his hand (this was the first time witness saw the knife), and witness, putting his hand behind him as if he had a pistol, said to defendant to stop; and he stopped, and started off on the side of the road, slipping the knife through his fingers, as if wiping blood from it. Jeff. Dean then started to catch defendant’s horse, and he told him not to touch his horse, or he would cut him. At the time witness heard the above exclamation, and looked back, Fisher was doing nothing that he saw or heard but trying to get out of the way of defendant. Deceased was cut in the right side of the neck, the wound being an inch and three-quarters or two inches in length, and three-quarters of an inch in depth. There were two or three cuts in the clothing of deceased, appearing to have been made with a knife. The knife witness saw in defendant’s hand was a common-sized twenty-five cents barlow, square-pointed, like a shoe-knife, and sharp to the point. He bought it in Marvel that afternoon. Showed it to witness before they left town, strapping it on his left leg, and remarking that it was good metal. "Witness examined the person of deceased after he was dead. He had no weapon upon him. Nothing but a small pocketknife, which was in his pocket shut up. Witness did not touch the body until Dr. Byrd came from Marvel, who examined the wound, opened it, and showed it to witness, who described it fully to the jury.

Dr. West, who was in court as a medical witness, and heard the testimony of Willis Macon, was of the opinion that the wound described by him was the immediate cause of the death of Fisher. “ Such a wound,” he said, “ would necessarily sever the carotid artery and the jugular vein, from which death would necessarily result in all cases in from two to five minutes. The blood would not have spurted as witness described unless an artery had been severed. The knife described by witness would make such a wound.

Jeff. Dean, a witness for the state, testified that he left Marvel, in the afternoon of the eighth of June, 1878, and when about a half mile from the town, overtook defendant and deceased riding along together. Defendant was talking to deceased in a very insulting manner, about a wagon. Seemed to be threatening him. Witness rode on by them. Heard deceased make no response to defendant when he passed them. He rode on a short distance and caught up with "Willis Macon, who was riding ahead of them, when he heard an exclamation from deceased, sounding as if he was surprised or hurt. He looked around, and saw deceased fall or lean forward on his mule, etc. He then proceeds to give about the same account of what occurred as that given by Macon. He also stated that at the time be passed defendant and deceased, defendant appeared to have been drinking but was not drunk.

Other witnesses were examined by the state, whose testimony conduced to’prove that defendant had some ill-feeling against deceased about a wagon, and had threatened him.

Some of the witnesses of the state, and two .examined by defendant, testified that he and deceased appeared to be friendly before and on the day of the killing.

After a careful examination of all the testimony, we are of the opinion that there was evidence to warrant the verdict.

The killing, under the circumstances,, appears to have been a wanton and unprovoked murder.

III. It was made a further ground of a motion for a new trial that the court instructed the jury on the law of the case, but in what particular is not indicated in this assignment.

The bill of exceptions states that the court instructed '"the jury on the law by charging them upon the different grades of unlawful homicide under the statute, to which no exception was taken. And charged them further by reading the following portion of'the opinion of the supreme court, on page 4-08, vol. 25, Ark. Rep.:

“ That in the sudden killing of a human being with a deadly weapon, without provocation, the law implies malice; and, to make the killing murder, it is not necessary that any particular animosity towards the deceased should exist; but a corrupt and wicked motive and intention to do evil, which results in the death of the deceased, is sufficient. Nor is it necessary that the intention to kill should have been formed or existed for any long length of time. If the intention to kill was formed or existed in the instant of the killing, it is murder.”

Also, from the same opinion, on page 409, the following; substituting the words, “struck with a knife,” in place of the words, “fired the gun

“ If the jury believe, from the evidence, that the defendant, at the time he fired the gun, intended to kill the deceased, and did kill him, without any provocation, they will"find him guilty of murder in the first degree.”

To which defendant objected.

These instructions were given in the case of McAdams v. The State, and approved in the opinion of this court, from which they were read.

They were also in. harmony with the opinion of this court, delivered by Justice Scott, in Bivens v. The State, 11 Ark., 455, in which the two degrees of murder, under the statute, were discussed.

IV. After the court had given its general charge to the jury (which was not objected to and not set out in the bill of exceptions), and had read to the jury, from an opinion of this court, the two instructions copied above, the counsel for the prisoner moved sixteen instructions, all of which the court gave except the third, fourth, seventh, ninth and fourteenth, and part of the twelfth.

"When the court has given a general charge, and the prisoner seeks to reverse the judgment for refusal of instructions offered by him, the better practice is to set out the general charge in the bill of exceptions, that this court may see whether the instructions refused were not embraced by the general charge, and, therefore, no substantial error committed, for the court is not bound to repeat the same charge in substance, though varied in terms, where the,refusal would work no injustice. Stanton v. The State, 13 Ark., 317.

By statute, “all murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of willful, deliberate, malicious and premeditated killing, or which shall be committed in the perpetration of, or in the attempt to perpetrate arson, rape, robbery, burglary or larceny, shall be deemed murder in the first degree.” Gantt’s Digest, secs. 1253-4.

These statute provisions the .court below doubtless gave in charge to the jury.

In Bivens v. The State, 11 Ark., 460, Justice Scott, delivering the opinion, of this court, said:

“It is clear to our minds that when a given case of malicious homicide is not one of the eases specified in our statute, in the enumeration of the particular cases designated as of themselves murder in the first degree, then, in order to bring it under the genéral description, and thus to show it to be murder in the first degree, it is indispensable that the proof adcluced shall be sufficient to satisfy the minds of the jury that the actual death of the party slain, was„the ultimate result sought by the concurring will, deliberation, malice and premeditation of the party accused. The distinctive feature of this particular class of cases of murder in the first degree being a willful,' deliberate, malicious' and premeditated specific intention to take life. The inquiry, then, in cases of this class of murder in the first degree must always be, was the killing willful, delib•erate, malicious and determined, on or before the act of killing? If it was, then that degree of malice has super-induced the act that is necessary to make it rank in the highest degree of murder.”

“ It is indispensable, then, in such cases, that the evidence should show that the killing with malice was preceded by a clearly formed design to kill — a clear intent to take life. It is not, however, indispensable that this premeditated -design to kill should have existed in the mind •of the slayer for any particular length of time before the killing. Premeditation has no definite legal limits, and, therefore, if the design to kill was but the conception of a moment, but was the result of deliberation and premeditation, reason being upon its throne, that is altogether sufficient; and it is only necessary that the premeditated intention to kill should have actually existed as a course determinately fixed on before the act of killing was done, and was not brought about by provocation received at the time of the act, or so recently before as not to afford time for reflection. Accordingly, it was held in Virginia (6 Randolph, 721) that when the accused, as he approached the deceased, and first came in view of him at a short distance, then formed the design to kill, and walked up with a quick step and killed him without provocation then or recently, so as to prevent 'time for reflection, it was murder in the first degree. Nor is it necessary to prove this formed design by positive evidence. Like any other fact, it may be established by circumstantial evidence, which, beyond a rational doubt, convinces the mind of the jury that this previous determination' to kill did, in fact, exist. A. homicide often fails to declare his intention, but remains mute as to this.; and not unfrequently veils his fatal purpose under the guise of friendship. The most willful, deliberate, malicious and premeditated homicide would often go unpunished if his formed design to kill could not be proved by circumstances independent of any admissions of his, or even against his express declarations. . Thp general rule of law, as to the point, is, that a man shall be taken to intend that which he does, or which is the immediate or necessary consequence of his act. (2 Stark. Ev., 738.) Accordingly, if a man were to raise a gun, take aim and fire,.and kill another, and these were all the facts proven, there could be no doubt but that he intended to kill; and this would be sufficient evidence to authorize the finding of that fact, and the law would intend that it was done with malice aforethought, and would be prima facie a .case of .willful, deliberate, malicious and premeditated killing, to be disproved or confirmed by the proof of the other attendant circumstances.”

In giving most of the instructions moved for the prisoner, and in refusing the others, the purpose of the court below appears to have been to make its declarations of the law, upon the facts in evidence, conform to the principles announced in the opinion quoted from.

Por the prisoner, the court instructed the jury:

“1. That, in order to convict of murder in the first degree, it must appear clear and conclusive, from the testimony, that the actual death of the party slain was sought by the concurring will, deliberation, malice and premeditation of the accused, and that the premeditation to kill existed as a’course deliberately fixed upon before the act of killing, and was not formed by provocation received at the time of the act.

“2. If the evidence fails to satisfy the jury beyond a reasonable doubt that there was clearly formed a design to kill, or that the killing was done with deliberation and malice aforethought, then the act of the defendant would be reduced to some other grade or character of homicide, which is committed without malice, and without deliberation or premeditation.

2- Mdkdek.

imfn^not murder m sree-

“5. If the design to kill be formed upon the sudden influence of passion, disconnected with any previous design to kill, though it may be executed willfully and maliciously, it will not constitute murder in the first degree.

“ 6. If the jury believe from the evidence that the assault which resulted in the death of thefieceased, Fisher, was made by defendant with a pocket-knife, without deliberation and without a previously formed decision or settled purpose that his assault should produce death, they must acquit him of murder in the first degree.”

The tenth and eleventh instructions given for the prisoner relate to the legal presumption of his innocence, and the duty of the state to prove all of the material allegations of the indictment.

(a). The third instruction asked for the prisoner, and refused by the court, follows :

“The malicious killing of a human being 'is not per se murder in the first degree; it must also'be willful, deliberate and premeditated, and although the jury may believe that the defendant struck the mortal blow under the impulse of a kicked or evil disposition, they could not find him guilty of murder in the first degree unless they further believe from the evidence that the act was deliberate and premeditated.”

No killing is murder unless done with malice, and the statute having made two degrees of murder it follows that malicious killing is not necessarily murder in the first degree. (Palmore v. State, 29 Ark., 250). But the court distinctly charged the jury in such of the instructions moved-by the prisoner as were given, that to constitute murder in the first degree the killing must, be willful, deliberate, malicious and premeditated, which are the words used in the statute. It was needless for the court to multiply the instructions by repeating, in substance, the same declaration of law. Stanton v. The State, sup.

3. Instructions:

Not to be repeated.

(6). The fourth instruction refused was in the words following:

“ To constitute murder in the first degree, the design to kill must be formed willfully, that is, of purpose and with the intent that the act or stroke by which life is taken should have that effect; deliberately, that is, with cool purpose; maliciously, that is, with malice aforethought; and with premeditation, that is, the intent to kill, must be formed before the act by which the death is produced.”

This instruction is in language used by Justice Green, in Dale v. State, 9 Yerger, 551, when defining the words of a Tennessee statute, similar to ours, and, after using the language copied in the instruction, he adds: “ In other words, proof must be adduced to satisfy the mind that the death of the' party slain was the ultimate result which the concurring will, deliberation and premeditation of the party accused sought” — citing 1 Leigh's Rep., 611.

The court below did not think proper to adopt Justice Green’s definitions of the words used in the statute, but in the instructions given the words of the statute,' which are plain, were used in expressions which must have made their meaning, and the elements of the crime of murder in the first degree easily understood by a jury of ordinary intelligence.

The language employed in the instructions given, was as strong and clear as that used by Justice Scott, in Bivens v. The State, sup., in defining murder in the first degree.

(c). The seventh instruction, which was refused by'the. court, is a» follows :

“ If the jury believe from the evidence that the defendant was on his part friendly with the deceased, Eisher, before and on the day up to the moment of the difficulty,, this fact tends to rebut the existence of premeditated malice in the defendant.”

There Was no evidence upon which the jury could havé founded a belief that the prisoner was friendly with the deceased up to the moment of the killing. On the con. trary, it was proved by two uncontradicted witnesses that before he made the mortal cut with the knife, he was abusing and threatening deceased. There is an utter want of proof that deceased did or said anything at the time to provoke the prisoner to anger or violence.

, Any declaration of law made by the court should be applicable to the facts of the case.

The seventh instruction, as framed, was properly refused.

(d). Passing over for the present the eighth, ninth and twelfth instructions, the fourteenth instruction,, which the court refused, was in words following :

“If the jury believe from the evidence that the defendant was drinking on the day of the difficulty, and was, at the time of making the alleged assault, in such a state of mind, from the effects of the liquor drank, as to be incapable of cool reflection, or of forming a deliberate intent .to kill and murder the deceased, they’ should acquit of murder, provided it appears that the liquor was drank out .•of social pleasure, and not with a wrongful intent.”

This instruction would make intoxication an excuse for both degrees of murder. “Drunkenness (says Bishop) does not incapacitate one to commit either murder or manslaughter at the common law ; because, to constitute either, the specific intent to take life need not exist, but. general malevolence is sufficient. But where-murder is divided by statute into two degrees, and to constitute it in the first degree-there must be the specific intent to take life, this specific intent does not in fact exist, and the murder is not in this degree, where one, not meaning, to commit a homicide, becomes so drunk as to be incapable of intending to do it; and then, in this condition, kills a man. In such a case, the courts hold that the offense of murder is only in the second degree.” 1 Bish. Cr. Law (6 ed.), sec. 409.

Both Macon and Dean, the only witnesses who testified that the prisoner had been drinking, swore that he was not drunk when he killed Eisher.

The fourteenth instruction was, therefore, not applicable to the facts in evidence, nor was it correctly framed as abstract law, and was properly refused by the court.

(c). The eighth instruction was as follows:

“ Express malice is never inferred, alone, from the act done, or means used in doing it; it must be proved like any other fact in the case, by evidence sufficient to satisfy the jury of its existence.”

This instruction was abstract. In this ca3e the act done was the killing of Fisher, and the means' or instrument used was a knife, but these two facts were not the only facts in evidence; the circumstances attending the killing, and the manner in which the knife was used, and the conduct of Fisher at the time and before the assault was made .upon him, were proved by witnesses present, and there was some evidence of an old grudge on the partAff the slayer.

“ Express malice,” as defined by the statute, “ is that deliberate intention of mind unlawfully to take away the life óf a human being, which is manifested by external circumstances capable of proof.” Gantt's Digest, sec. 1251.

4. mamoe:

impii^en

5- JuKY.

law‘

’(f). The ninth instruction was that, “Malice is not implied by law from the fact that the killing was done with a deadly weapon.”'

It is not true, as a general proposition, that malice is not implied when the killing is done with a deadly weapon. 2 Bishop Cr. Law (6 ed.), sec. 680.

“ Malice shall be implied,” says the statute, “ when no; considerable provocation appears, or when all the circumstances of the killing manifest an abandoned and wicked disposition.” Gantt’s Digest, sec. 1251.

"When it is shown that the killing was done with a deadly weapon, and no circumstance of mitigation, justification or excuse appear, the law implies malice, lb., sec. 1252.

(g). The twelfth instruction, as askéd, was as follows:

“ It is the duty of the jury to apply the law to the testimony in order to determine the criminal intent with which the alleged assault or deed of the defendant was committed, and they must receive the law, when given, from, the court, but in criminal cases where the issue involves a mixed question of law and fact, the jury are the judges of the law and the facts.”

The court gave all of this instruction except the last clause (from the words, “but in criminal,” etc.), seems to imply that when the issue involves a mixed tion of law apd fact, the jury are not to take the law as declared by the court, but may judge of both law and facts themselves ; and the clause being subject to such construction, it was'properly refused. Pleasant v. The State, 13 Ark., 360.

It is the province of the court in all criminal cases to declare the law, and, of the jury; to consider and weigh the-facts in evidence, and to apply the law, as given them in-charge, by the court, to the facts, in making up their verdict, and, in that sense, they are judges of the law and the-evidence.

Upon the whole case, we are of opinion that the judgment of the court below should be affirmed.


author: Harrison, J.

text:
    Little Rock and Fort Smith Railroad Company vs. Duffey.
    1. Master and Servant : Master's liability for injury to.

    When one enters into the employ of another, he assumes and is presumed' to have contracted with reference to all the risks and hazards ordinarily incident to the employment,; and the master is not liable to him for injuries resulting from an accident which he might not, by ordinary care and diligence, have prevented. The same rule applies, also, to-perils and risks not incident to the service, of which the servant has-notice, unless he has been induced to accept the service by the promise-of the master to remove the cause, and he has failed to do so.
    2. Same: Injury from negligence of fellow-servant.

    The master is not liable for an injury to his servant, caused by the negligence of a fellow-servant engaged in the same business, if there be no. negligence in the appointment of the latter, or in his retention after notice of his incompetency.
    3. Sam:e : Negligence.

    The question of negligence is a mixed one of law and fact, in the determination of which is to be considered whether an act has been done or omitted, and, also, whether the doing or omission of it was a breach of legal duty.
    4. Same : Master’s liability as to tools furnished.

    There is no implied warranty on the part of a master that the tools furnished his servant are sound and fit for the purposes intended. He is-only bound to use proper care in providing them.

      5. Same: Injury from use of defective tool.

    That a master might have known by the use of ordinary care and diligence, that a tool furnished his servant for use was defective, is not sufficient to-make him liable foT the injury resulting from its use, irrespective of any probability of harm or danger in using it.
    APPEAL from Faulkner Circuit Court.
    Hon. J. W. Martin, Circuit Judge.

      Clark 8f Williams, for appellant.

      S. A. Cockrill, for appellee.
   Harrison, J.

This-was an action by the appellee, against the appellant, to recover, damages for an injury received by the former while in the latter’s employ. The complaint alleged that the plaintiff, while in the defendant’s employ, and working on its track, had, through the defendant’s negligence, an eye put out by the breaking of a defective and unsafe spike-maúl, which was at the time, known to the defendant to be defective and unsafe.

The defendant denied the alleged negligence, or that the maul was defective or unsafe, or if it was, that it had any knowledge of the fact, and averred that the accident happened by the plaintiff’s and his fellow servants’ improper and negligent use of the maul, the condition of which, if defective and unsafe, was at the time known to him.

The plaintiff', for himself, testified that he was, when the accident happened, in the employ of the defendant and working with other hands, under the direction of Mr.Darrou, the foreman or section-boss, on its track, raising ties and taking out old and putting in new ones: That while so engaged, a spike, in being driven, bent in under the rail, when, to force it out, one of the spikers put the. small end of his spike-maul between the spike and the rail, upon the face of which another struck with his maul, and, while so striking, a small piece of steel flew off and struck him, the witness and plaintiff, in the eye, and which entered the ball and put out and destroyed the eye. He was, when struck by the piece of steel, holding up the tie with a claw-bar, outside of the track, using a block of wood as a fulcrum, and sitting on the end of the claw-bar,- outside of the track. He supposed, when hurt, that it was by a piece of the spike, and did not know, until the next day, that it was by a piece of steel from the face of the maul. Upon ■examining the maul (which of the two does not appear), he found the face of it rounded and badly battered, and the rim of the face shivered, and two .or three pieces out of it. He believed that the accident was caused by the striking ■of the faces of the mauls together in the attempt to force the spike out from under the rail, and that it would not have happened if the rim had not been shivered. He had •not, himself, used the maul, and had not before noticed its ■condition, except that it had a split handle. It appertained to his part of the work to draw crooked spikes, when so directed; but the foreman,who was standing about twenty feet behind him, looking on, and had plenty of time after the commencement of the striking and before the accident, to have stepped to the strikers, gave no such, directions. Darrou, the foreman, hired and discharged hands, .and it was his duty to give direction to those under him. He had never ordered the men not to strike the faces of the mauls together. He had worked on railroads twelve or fourteen years, and was three years of the time a foreman, and he could then get employment as a foreman but for the loss of his eye. . He was receiving, when hurt, he -said, $1.10 a day. He further testified as to the expenses attending his cure, which part of his testimony need not be stated.

Thomas Conley, a witness also for the plaintiff, testified that he was, when the plaintiff was hurt, working on the track tamping, about fifty yards from him, and after the accident he was sent by Barrou to take his place. He saw the maul about three days after the accident. It had a shivered handle,'wound with wire, and the face of it was worn round and its edge battered, and pieces of steel broken off. He had, he said, been a laborer on railroads for about sixteen years, working principally on grading. Tools are furnished the hands by the foreman, whose duty it is to have the damaged ones repaired, or to get new ones in their place. It was the business of the foreman to know the condition of the maul. It was still in use when he left the road at the end of the month.

And Charles Watson, another witness for the plaintiff, testified that he was a common laborer, and he had been working on the road under Barrou about two weeks when the accident occurred, and he heard of it about a week after. He saw a maul, with a split handle, wound with wire, the face of which was globular and likely to throw a spike out, and was Hindered around the edges. He had had some experience in spiking. Such a maul was more likely to splinter off than one with a smooth face. It was Barrou’s duty to see to the tools of the trackmen. The maul was used after the accident, and as long as he remained on the road.

B. W. Barrou testified for the defendant, that he was section-boss, or foreman, in charge of the hands with whom the plaintiff was working when the accident occurred, and had six men, three of whom were tamping. He was about ninety feet from the plaintiff, and did not see the men. He heard an exclamation by the plaintiff, and when he saw “that he had left his place, he sent a man to take it, and went to where he was, and after seeing him, sent for a physician. The physician saying a piece of steel had entered the eye, he examined the maul, and discovered that a small piece of steel, so small as hardly to be perceived, had •chipped off' of it. He had been careful in the selection, and looking after the tools, and they were as good as are usually used, and as could be bought in the market. He saw them every day, and he had often examined the mauls, and knew of no real defect in any of them. His attention had ■once been called to the handle of a maul that had split, and he had it fixed by mending it with wire, and it was then •as good as ever. He then noticed that the face of the maul was chipped a little, but the use of the maul was not materially impaired by it, and such chipping, in his opinion, did not render a maul dangerous. He had seen mauls used as those, were when the accident happened, occasionally for fifteen or twenty years, and had never heard of such an accident before. The face of the maul is of tempered steel, and will become abraded "by use, and if struck on surfaces of equal hardness, will splinter or chip, and is liable to do so, also, from driving the spikes, but no more liable in either case after it has been some time in use than when new. The chipping is vertical, leaving the face not so large, but as smooth as ever. If one of these corners were struck upon a maul or spike, it would be more likely to splinter than if two faces were struck together. A spike in driving sometimes bends under the rail, when, to prize it out, the men will sometimes put the small end of a maul between the rail and it, and drive the maul with another maul, striking the two faces together. He had often ordered them to draw the spike, which it was the nipper’s place to do. The plaintiff was nipper when the accident occurred. He considered a maul good as long as it answered its purpose and drove a spike straight. He had, when necessary; made requisition for tools, and they were always furnished. The wages of a foreman, he said, was $50 a month.

And Thomas Hurley, another witness for the defendant, testified that he had been four or five years roadmaster on the defendant’s road, and that the tools furnished the hands were generally as good as he had ever seen on any road. That whenever a foreman asked for tools they were furnished, and when needing repair he sent them to the shop, and when sent out from it they were in good order.

The court gave the jury four instructions for the plaintiff, each of which was objected to by the defendant, and eleven were asked by the defendant, all of which, except the tenth, were refused.

Those given for the plaintiff were' as follows:

1. The jury are instructed that it was the duty of the defendant railroad to use all reasonable precautions for the safety of the men working for them, by giving them suitable materials and tools ?to work with, and by keeping them in a condition not to endanger their safety beyond what was ordinarily incident to the use of such tools when in proper repair.

2. The jury are instructed that if they find that the plaintiff was injured by reason of a defective or insecure spike-maul, used at the time of the injury by an employee of the defendant railroad company in discharge of his duty, while he, the plaintiff, was in discharge of his duty, and that the defendant railroad company, through its agents, knew that said maul was defective, or insecure, or might have known it by the use of ordinary care or diligence, they must find for plaintiff*, unless they also find that plaintiff was also in fault at the time of the accident, and by-reason of his fault contributed to the injury; or that he knew the. maul was defective ; or ought, by ordinary care, to have known it; and that the defects were of such a nature as would induce him reasonably to foresee what might endanger his safety.

3. The jury are instructed that if they find for plaintiff, they can take into consideration in estimating the damages to be awarded him, the amount expended in effecting a cure of the. injury received by the defendant’s negligence; the value of the time lost by plaintiff; a reasonable amount for his physical pain and suffering; and also further damages to be estimated by the difference between the amount he could have earned before the injury, and the amount he can earn in his maimed condition.

4. The jury are instructed that if they find the duties of Darrou were to provide tools for the men under him, and to see that they were kept in repair, and that he had control over the men under him, with power to discharge them and employ others, he was a manager of defendant, and notice of defects in the tools to him was notice to the company.

Those requested by the defendant were as follows:

1. The defendant moves' the court to instruct the jury that the burden of proving every material fact in the case devolves on the plaintiff, and he must prove, to the .satisfaction of the jury, before he can recover: That defendant negligently furnished defective tools to work with, or required him to work with fellow-servants who were furnished with defective tools, whereby plaintiff was injured, and that these defects and risks were at the time known to defendant, or by the use of ordinary care could have been known, and were unknown to the plaintiff at the time of and before the injury, and the plaintiff has failed to prove these material facts, and is not entitled to recover; they are, therefore, instructed to find for the defendant for want of testimony on the part of plaintiff'.

2. If the jury believe the plaintiff acted negligently in the use of the tools he had, he can not recover, for he who sues for damages on account of negligence, must himself be without fault, and must not himself contribute to the injury caused in part by defendant’s negligence.

3. ‘ If the jury believe from the evidence that the plaintiff was injured by the misconduct or negligence of a fellow-servant of plaintiff' while they were engaged in a common employment of defendant, plaintiff' can not recover in this action.

4. The defendant is not responsible for injury received by plaintiff while in its employ by any negligence of a fellow-servant, unless such fellow-servant was known to defendantto be negligent and untrustworthy, and in plaintiff’s ignorance of this characteristic, he was compelled to work with him.

5. If the plaintiff' was injured by defects in tools or machinery, which defects were known to plaintiff before he was injured, plaintiff can not recover.

6. If the jury believe from the evidence, that defendant, the railroad company, furnished defective tools, yet if they believe plaintiff worked with them after notice of danger to which he was exposed, continued in the employment and was thereby injured, in such case the law considers the plaintiff'as having contributed to his own injury, that the plaintiff was as much bound to take care of himself as the defendant was to take care of' him, and if plaintiff possessed the knowledge' of the matter of the defect in tools, he was bound to refuse to use them, or refuse the employment, and if he failed to do so he assumed the risks incident to the use of such tools, and can not recover for injuries resulting therefrom.

7. When a person enters into the employment of another, he assumes all the risks incident to the business. He is presumed to have contracted with reference to all the hazards and risks ordinarily incident to the employment, and he can not recover for injuries resulting to him therefrom ; and if the jury believe that the defendant has used ordinary care and diligence in selecting the implements and machinery, and fellow-servants, with which plaintiff was to work in his employment, and had no knowledge of any defect in them, or reason to believe there was any defect which was calculated to inflict the injury, plaintiff can not recover for any injury resulting to him in the use of defective tools, if he had knowledge of such defect, and with such knowledge continued their use.

8. If the jury believe from the evidence that defendant furnished the tools to work with to plaintiff, and had no means of knowing of any latent or hidden defect in them, and there was no defects in them that was not as open to the inspection of plaintiff as defendant, plaintiff 'can not recover for any injury resulting from the use of such defective tools caused by such defect.

9. If any defect in the tools existed which plaintiff knew before the injury, he can not recover for any injury caused by such defect.

10. If the jury believe from the” evidence that the injury complained of was the result of an accident, which could not have been foreseen and prevented by the exercise of ordinary care and diligence on the part of defendant, they must find for the defendant.

11. If the jury believe from the evidence that the injury complained of was proximately caused by tbe manner in which the tools were being used by fellow-servants of plaintiff at the 'time of the injury, then they should find for the defendant whether they believe the tools were defective or not.

The court, on its own motion, against the objection of the defendant, gave also tbe following charge:

“There are several propositions of law arising in this ease upon the view presented by the defense, to wThich the court calls your attention: First, as to the liability of the defendant road for an injury resulting from the misconduct of a fellow-servant. The road would not be responsible for an injury arising from the negligence of a fellow servant while they were engaged in a common employment of defendant, unless you should find' that the proximate cause of the injury was a defective implement furnished by defendant to such fellow-servant. An employee assumes the ordinary risks of negligence on the part of his fellow-servants, but this could not be said to include the risks incident to their negligence while using defective tools furnished by the master. IJpon the view presented by the counsel for defendant that the company are not responsible, even though there was negligence in supplying tools, if the plaintiff, knowing such defect, continued in the employment, the court instructs you that if you believe that the defendant railroad company furnished defective tools, yet if you believe the plaintiff continued in its service after notice of such defect and the danger to which he was thereby exposed, and was thereby injured, in such ease the law considers the plaintiff as having contributed to his own injury; that the plaintiff' was hound to exercise ordinary care and prudence under all the circumstances of his position to protect himself from injury, and if the plaintiff possessed, the knowledge of the matters of defect in the tools, and the danger arising therefrom, he was bound to refuse to use them or quit the employment, and if, with such knowledge, he continued in it, he assumed the risk incident to the use of the tools, and can not recover for an injury that resulted therefrom.

“When the servant is injured by defective machinery, of the defect in which he has knowledge, he is treated as waiving all risks incident to such defect, but the fact that he might have known of the defect, or had the means or opportunity of knowing of it, will not preclude him from a recovery; unless he in fact did 'know of it, or in the exercise of ordinary care ought to have known of it, he can recover.

“He is not bound to examine the machinery to find defects. He has the right to presume that it is suitable, unless the defects are palpable, and open to ready observation. He is only bound to exercise reasonable attention, and take notice of such defects as such reasonable attention brings to his observation. The duty of the master in the first instance is to furnish safe tools and keep them in repair;- but if the servant knows that the tools are defective and unsafe, he assumes all risks incident to their use in such condition if he continues to use them.

“ Ordinary care is defined to be the use of such watchfulness and precautions as are fairly proportioned to the danger to be avoided, judged by the standard of common prudence and experience. Also, such care ás a reasonably prudent mau, under the peculiar circumstances of the case, would exercise to preserve himself .from injury.

“ The question of care and diligence, or negligence, is one peculiarly within the province of the jury, and it is for them to settle this in view of all the circumstances surrounding each particular case ; the specific degree of care that the master must exercise in each case is to be measured by the nature and character of the business, the appliances used, and the risks therefrom to those employed in and about such business.”'

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The jury returned a verdict for plaintiff for $1,750.

The defendant filed a motion for a new trial, the grounds assigned for which were the giving of the instructions asked for the plaintiff, and the refusal to give those, except the tenth, asked by the defendant, which motion was overruled.

The doctrine is well settled that where one enters into the employ of another, he assumes, and he is presumed to have contracted with reference to, all the hazards and risks ordinarily incident to the employment, and the master is not liable to him for injuries resulting from an accident which he might not, by ordinary diligence and care, have prevented.

The same rule applies also to perils and risks not incident to the service of which the servant has notice, unless he has been induced to accept the service by the promise or understanding of the master to remove the cause, and he has failed to do so.

Nor is the master liable to him for injuries produced bv the negligence'ox a fellow-servant engaged in the same business, if there be no negligence in the appointment the latter, or in his retention after notice of his incompetency.

The question of negligence is a mixed one of law and fact, in the determination of which is to be considered whether an act has been done or omitted, and whether, also, the doing or omission of it was a bi’each of legal duty.

4.--: Liability as to tools furnished to servant.

“ The extent of the defendant’s duty is to be determined by a consideration of his circumstances. The law imposes duties upon men according to the circumstances in which they are called to act; and though the law defines the duty, the question whether the circumstances exist which impose that duty upon a particular person, is one of fact.” Shear. & Red. on Neg., 11.

Wharton says: • “Asa rule, the degree of diligence required is proportioned to the duty imposed, and the degree of negligence imputed corresponds to the degree of diligence exacted, ^rith the qualification that the utmost degree of diligence exacted is that which a good business man is, under the particular circumstances, accustomed to show.” Whar. on Neg., sec. 48.

The evidence in this case conduced to prove that the accident by which the plaintiff was injured, happened in consequence of a maul furnished by the defendant, and used in and about the work the plaintiff was engaged in, having by former use become, abraded and broken around the face; and it presented to the jury the question not only whether the accident was so produced, but also, if so, whether, under the circumstances, negligence could be imputed to the defendant.

It was the province of the jury to determine the weight to be given to the evidence, but the first instruction asked by the defendant denies to them that right, and, assuming its insufficiency to prove the negligence alleged, attempted to exclude it from their consideration.

The refusal of the instruction was manifestly right.

There was no implied 'warranty on the part of the defendant that the tools furnished should be sound and fit for the purpose intended; the law imposed only the obligation to use proper care in providing them. Shear. & Red. on Neg., 103; Wonder v. Baltimore and Ohio Railroad Company, 32 Md., 411.

The defendant’s liability, therefore, did not depend upon the fact that the maul was defective, but upon the fact that it ought not, in its condition, to have been used about the work in which the plaintiff was engaged.

As said by the court of appeals of New York, in the case of Leonard v. Collins, 70. N. Y., 90, “In determining the question of the master’s negligence in an action by the servant for an injury alleged to have been sustained by him while in the master’s employment, from the negligence of the latter, the jury are to inquire whether, under the circumstances proved, the master did anything which, in the exercise of reasonable and ordinary care and prudence, he ought not to have done, or omitted any precaution which a prudent and careful man would or ought to have taken, and as they shall find upon this question (if there was no negligence on the part of the servant), determine their verdict.”

“ We are not to look solely at the act or the omission, but must take in view also the circumstances. The degree of care and vigilance impbsed by the circumstances is not the same in all cases — it varies accordingto the danger involved in the want of negligence.” Cooley on Torts, 630.

“ The law makes no unreasonable demands. It does not require from any man superhuman wisdom or foresight. Therefore no one is guilty of culpable negligence by reason of failing to take precautions which do other man would be likely to take under the same circumstances.” Shear. & Red. on Reg., 5.

“ The foreseeing of a harm as remotely and slightly probable, does not involve the imputation of such harm.” Whart. on Reg., sec. 76.

5. injury defective

It can not reasonably be contended that a tool or implement, which has become worn and defective by use, but which still answers its purpose, should be cast aside as dangerous, unless there is some apparent cause of danger in its continued use.

“It can only be required of the master, in providing tools or implements for his servant, to use due and reasonable diligence, so as to make it reasonably probable that injury will not occur in the use of them.” Wonder v. Baltimore and Ohio Railroad Company, supra.

& It w-as an error, therefore, to instruct the jury, as was (Jone in the plaintiff’s second instruction and the charge given by the'court on its own motion, irresjiective of any probability of danger or harm, that if the maul was defective, and such defect might have, by the use of ordinary care and diligence, been known by the defendant, the defendant was liable to the plaintiff’ for the injury he received.

Counsel for appellant insist that as there was no evidence as to the age of the plaintiff, his‘health and physical condition, or as to his probabilities of life, the plaintiff’s third instruction, by which the jury were told that they might, in the estimation of the damages, consider the difference between what he was able to earn before the injury, and that which he could earn in his maimed condition, should not have been given.

If such part of the instruction was in fact abstract, there is nothing in the case from which we might presume that the jury were misled, and the defendant prejudiced by it,but we think there was some evidence of such difference.

"We can see no valid objection to that, nor any to the remaining instructions given for the plaintiff’.

There was no evidence to which the second instruction asked by the defendant was applicable. The plaintiff himself used neither of the mauls. He was working with a claw-bar, in the use of which no negligence was charged. There was no error, therefore, in refusing it.'

The other instructions refused, the third' and those following it, and, except as just mentioned, the charge of the court, which substantially contains, however, the instructions, appear to be in accordance with the principles wTe have above stated.

The judgment is reversed and the cause remanded.