text:
    Christian et al. vs. Ashley County.
    The county court has jurisdiction to render judgment against a delinquent collector or his sureties, for the county revenue which he has collected and failed to pay over as required by law. (Goultfs Big., ch. 14/1, secs. 3Í-45; Lawson vs. Pulaski " county, 3 Ark.; Goree vs. State, 22 ib., 235; Jones vs. State, 14 ib., 1Í2.)
    A statement made by the clerk, in the transcript sent to this court, that a notice ■ ordered by the court had been issued, but had been mislaid, is no evidence of that fact.

      No notice to the delinquent collector of the preliminary adjustment of his accounts is necessary, hut he must have notice before final judgment. (Trice vs. Crittenden county, 2 Eng., 162; Carnall vs. Crawford county, 6 ib., 623.)
    A scire facias issued against the collector and his sureties, after a preliminary adjustment of his accounts, commanding thSm to appear and show cause why judgment should not he rendered against them for the moneys due the county, etc., and duly served before final judgment, is a sufficient notice.
    The securities in a collector’s bond are liable for the nmonnt of the penalties imposed upon him for his delinquencies.
    The county court properly imposed the penalty of twenty-five per centum upon the amount of revenue found to be due, and fifty per centum per annum thereon.

      (Carnall vs. Crawford county, 6' Eng., 625.)
    The funds arising from county licenses, fines and forfeitures, constitute a part of the revenue of the county; the collector is required to settle with the county court ’ therefor; and on his failure to do so, his securities are liable for the same. (Law sori vs. Pulaski county, uhi sup.)

    The sureties in a collector’s bond given for the year 1869,are not liable for monej-s collected for 1860.
    It appearing in this case that a part of the moneys had been collected for 1859 and and apart for 1860, and that the collector had paid over an amount exceeding the sum collected for the latter year, which amount was duly credited to him in rendering the judgment: it does not affirmatively appear that the collector and his sureties were charged in the final judgment, with any revenues collected after the year 1859, which was the period of responsibility of the sureties.
    There being no evidence as to whether the sums paid by the collector were appropriated in the adjustment of the accounts, to the payment of the amount due for the year 1860, the court must presume in favor of the correctness of the judgment of the county court. (Lawson, ex parte, ubi, sup.)

    In entering the final judgment, the county court did not credit the collector with the two last payments, but directed them to be credited on the execution. Held, That it would have been proper to have given credit for them in entering the judgment; but the direction that they should be credited on the execution was in effect the same, the penalty only being upon the remainder of the judgment _ after the deduction of these payments.
    The sureties were not released by the failure of the county court to compel the collector to settle at the time required by statute. (Christian, ex parte,23 Ark., 641.)
    The transcript showing that the proceedings were had “ in the county court of the county of Ashley, the Hon. R. T. Harris, judge, etc., presiding, assisted by Esq’s. John Hill and Samuel H. Moore,” it will be presumed that the two last named persons were the associate justices.

      Appeal from Ashley Circuit Court.

    Hon. John C. Mukkay Circuit Judge.
    Garland & Randolph, and Hutchinson, for appellants.
   Mr. Chief Justice English

delivered the opinion of the court.

By a summary proceeding in the county court of Ashley county, a judgment was rendered against James Norris, as a delinquent collector, and Joseph D. Christian and Milton C. Comer, sureties in his official bond, for balance of revenue ascertained to be due from him to the county, with the penalties prescribed by the statute for his defalcations. Christian and Comer removed the proceedings into the circuit court, by certio-rari, where the judgment of the county court was affirmed, and they appealed to this court.

The counsel for the appellants have made and discussed nine objections to the regularity of the proceedings and judgment of the county court.

1. The first objection goes to the root of the whole matter. It is that the county court had no jurisdiction to render judgment against the delinquent collector, or his securities, for the county revenue which he had collected, and failed to pay over to the county treasurer, as required by law.

The argument is, that though the constitution confers jurisdiction upon the county court “ in all matters relating to county taxes,” yet when the collector has collected the taxes, and put the money in his pocket, instead of paying it over to the treasurer, it loses its character as taxes, and the county court ceases to have any jurisdiction over it as such, and from thenceforward it is to be regarded simply as a money demand due from the collector to the county, to be recovered by the appropriate action in the circuit court.

If this argument be sound, the statute which authorizes the county court to proceed summarily to ascertain the amount of revenue due from a delinquent collector, and to render judgment agamst bim and his securities therefor, and which has stood upon the statute book, and been administered for nearly a quarter of a century, (Gould's Dig., 147, secs. 37 to 45) was a grave infraction of the constitution: and this court has fallen into, and persisted in an unfortunate error, in maintaining the validity oí the statute, and asserting the jurisdiction of the county court, in a series of decisions, commencing with Lawson vs. Pulaski county, 3 Ark., 1, and coming down to Goree et al. vs. State, use, etc., 22 Ark., 236.

In Jones et al. vs. the State, use, etc., 14 Ark., 172, this court held that an action, could not be maintained upon the bond of a delinquent collector, in the circuit court, until the County court had adjusted his accounts, and proceeded to render judgment against 'him for the amount due, etc.

The court, in that case, said: “The county court is the forum where the liability of the collector, upon which that of his securities depends, is to be ascertained and evidenced by its records. An adjudication in that forum is conclusive evidence against the securities, as well as the collector, in an action upon his bond the circuit court. There can be no liability upon the collector’s bond without such adjudication, unless the circuit court can, in an action upon the bond, draw to itself, in a collateral way, a jurisdiction to investigate and settle the accouts of delinquent officers for the collection of revenne, which appropriately belongs to the county court.”

2. The second objection is that Norris had no notice of the adjustment of his accounts by the county court, and that the adjustment rendered against him thereon was void, etc.

At the July term, 1860, the county court made an order that Norris be notified to appear at the next term and settle his accounts, and pay over all revenue in his hands, or that the court would proceed to make settlement thereof, etc.

The clerk states, in a note, that notice was issued in accordance with this order, but that it had been mislaid, and hence coirld, not be copied in the transcript, etc. But this note oí the clerk amounts to nothing, and it may be conceded that no notice was served.

At the October term, 1860, the court proceeded to adjust his accounts, (the record entry reciting that he had been required at the preceding term to make settlement and failed to do so,) and ascertain and state the amount of revenue due from him to the county: and directed that he be allowed no commissions: and that, if he failed to pay over the amount found to be due within ten days, etc., the clerk should charge him with twenty-five per cent, thereon, and upon the motion of the county treasurer, issue a scire facias against him and his securities to appear at the next term, and show cause why judgment should not be rendered against them for the moneys due the county, etc. The scire facias was accordingly issued, and served upon the parties in due time.

Up to this time no judgment had been rendered against the collector. The adjustment of his accounts was a preliminary proceeding, as was the direction to the clerk to charge him with the twenty-five per cent, upon the amount found due, upon his failure to pay the money over, etc. The account and the penalty, as well as the matter of commissions, remained under the control of the court, and it had the power, at the next term, on the return of the savre facias, upon a showing of the delinquent collector, or his securities, to re-adjust the account, remit the penalties, etc.

In Trice vs. Crittenden county, 2 Eng. R., 162, it was decided that no notice to the delinquent collector of the preliminary adjustment of his accounts, etc., was necessary; but that before final judgement could be rendered, he must have notice, etc., and this decision was approved in Carnall vs. Crawford county, 6 Eng., 623.

In this case, before any judgment was rendered against the delinquent collector or his securities, they were duly served with the scire facias, and allowed full opportunity at the return term, in January, 1861, to appear and make defence.

3. The third objection is that the judgment against the sureties for the penalties to which the statute- subjects the delinquent collector, is erroneous. In other words, that they are only liable, under the condition oí the collector’s bond, for the amount of revenue which is ascertained to be due from him to the county, and not for the penalties imposed upon him for his defalcations— that he alone is liable for them.

The condition of the collector’s bond is “ for the faithful performance of the duties of his office, and for the well and truly paying over all moneys collected by him by virtue of his office.” Dig., ch. 148, sec. 52.

It is true that the condition of the bond does not recite that either the collector or his sureties shall be liable for any penalties for his failure to pay over moneys collected by him, but the parties must be understood to contract in reference to the law in force at the time the bond is executed.

The law clearly imposes penalties upon the delinquent collector, and we think it was the intention of the legislature to make the sureties liable for the amount of penalties imposed upon him for his delinquencies. See Gould's Dig., ch. 147, secs. 37 to 45.

The policy of the statute in prescribing these penalties was not to enhance the revenue by collecting them of the officer, but to hold them over him as an inducement to be prompt and vigilant in paying over revenue collected by him. If he be insolvent, lie may have no personal dread of the penalties, yet the. ordinary feelings of a just minded man, would prompt him to pay over the revenue at the time required by law, to save his sureties from incurring responsibility for severe penalties, if by law they are subject to such responsibility. If the sureties were not liable for these penalties, the motive for them to see that the collector was prompt in paying over the revenue would be lessened: and when the amount due from him was ascertained, in case of his insolvency, they might avail themselves of every means of delaying payment, if by such delay they incurred no penalties. It is of the utmost importance to the public that the reyepue should. b§ promptly paid over by the collector, and the policy of the legislature in prescribing the penalties was to promote such promptness; and we think this policy would bé in a measure defeated, if the statute were so construed as to hold that the sureties were not liable to pay the penalties for their defaulting principal.

4. Th & fourth objection is that the county court rendered judgment for the amount of revenue found to be due from Norris, with the penalty of twenty-five per cent, added thereto, and fifty per cent, per annum thereon — thus imposing penalty upon penalty.

This was in accordance with the statute (sec. 41) as held in Carnall vs. Crawford county, 6 Eng., 625.

5. The fifth objection is that Norris was charged, as collector, with the amount of county licenses, fines and forfeitures collected by him.

The argument is, that he was liable as sheriff, and not as collector, for moneys collected from such sources.

The funds collected from county licenses, fines and forfeitures, constitute part of the revenue of the county, the collector is required to settle with the county court therefor, as such, and on failure to do so, he and his sureties are liable to be proceeded against, under the statute which we have been considering, whatever may be the liability, for fines and forfeitures collected by him, upon his bond as sheriff. See Gould’s Dig., ch. 148, secs. 69 to 70, etc.; Lawson vs. Pulaski county, ubi sup.

6. The sixth objection is that the county court included in the judgment rendered against the appellants, the amount of county licenses, fines and forfeitures collected by Norris in the year 1860, when it only appears from the record that they were securities on his official bond, as collector, for the year 1859.

The record entry of the adjustment of the accounts of Norris, made at the October term, 1860, is in substance as follows: “The court has ascertained the balance ' due the county to amount to the sum of $7,754.07, composed of the following items, to wit: $9,116.34, amount due on tax book for the year 1859, and $1,698.08 for county licenses, fines and forfeitures, due up to dune 1,1860, and $288 for county licenses, ñnes and forfeitures due from June 1, 1860, to October term of this court, 1860, upon which he has paid to the county treasurer the sum of $3,348.30, leaving balance due as above of $7,'154.07.”

From this entry it appears that the two sums with which Norris was charged for licenses, fines and forfeitures, amounted to $1,986.03, and it may be taken for granted that both sums were collected by him after the expiration of the time for which the appellants were responsible for his official conduct, as sureties on his official bond for the year 1859.

It appears that he had paid over before the settlement the sum of $3,348.30. How this payment was appropriated does not appear. It is certainly not shown that it was appropriated exclusively to the amount due upon the tax book for 1859, leaving the amount due for licenses, fines and forfeitures wholly unpaid. But for another record entry, to be noticed presently, it might be presumed for the purpose of sustaining the final judgment of the county court in the matter, that the amount due for licenses, fines and forfeitures in 1860, was entirely extinguished by the payment.

But by a record entry made at the January term, 1861, to which term the scire facias was made returnable, and at which the final judgment was rendered, it is shown that Norris appeared, and filed two receipts for additional payments made to the county treasurer, dated 30th January, 1861: one for $2,000.00, on account of revenues of the county for the year 1859, and the other for $500.00 on account of revenues collected by him for the year 1860, with which the court directed him to be credited

The judgment of the county court can only be quashed in this proceeding for errors to the prejudice of the appellants affirmatively appearing upon the face of the record. It certainly does not affirmatively appear that they were charged in the final judgment with any revenues collected by Norris for the year 1860, after the expiration of the period for which they became responsible for his official conduct. They may or may not have been, and the matter being left to presumption, we must presume in favor of the correctness of the judgment of the county court. Lawson vs. Pulaski county, ubi. sup.

Moreover, the record entry of the final judgment states that it appeared to the court that Christian and Comer were the sureties ot Norris on his bond as collector for the period in which his delinquency occurred, etc.

The appellants had due notice to appear before the county court and make defence before final judgment. Had they appeared and caused it to be shown of record that they were only the sureties of Norris for the year 1859, and not for 1860, and that in the adjustment of his accounts, he had been charged with revenues for 1860, which were not discharged by the payments made by him, if the county court had refused to correct the error, the judgment might have been subject to quashal, in this proceeding ; but they failed to avail themselves of the opportunity thus afforded them to make defence, and if the county court committed an error to their prejudice which does not affirmatively appear of record, they must abide the consequences of their own neglect.

7. The seventh objection is that in entering the final judgment the county court did not credit Norris with the amount of the last two payments made by him, but directed the amount to be credited on the execution.

The payments having been made before final judgment, it would have been proper to have given credit for them in entering the judgment, but the direction of the court that the amount of the payments be endorsed, as a credit on the execution is in effect the same ; for in collecting the debt, the sheriff will credit the payments upon the amount of the judgment, as of the day on which they were made, and calculate the fifty per cent, per annum penalty upon the remainder, and not upon the entire amount of the judgment, as supposed by the counsel for the appellants.

8. The eighth objection, that the sureties of Norris were'released by the failure of the county court to compel him to settle at the time required by the statute, was decided against the appellants by this court in Christian et al. ex parte, 23 Ark., 641.

9. The ninth and last objection is that the record fails to show that the proceedings were bad before a competent county court.

The transcript of the record before us shows that the “ proceedings were had before and in the county court of the county of Ashley, the Hon. P. T. Harris judge, etc., presiding, assisted by Esq’s., John Hill and Samuel H. Moore.”

The argument is that the title esquwe is not unfrequently applied to officers of all grades, to attorneys at law, and is bestowed upon persons at pleasure as an expression of respect; and that it may have been used in some such sense in the instance in question, and not to indicate that the persons who sat in the county court with, and assisted the presiding judge to hold the court, were justices of the peace.

But looking at the expression in the connection in which it is used in the record entry, we think it will hardly be a violent presumption to conclude that it was meant to indicate that the persons to whom it was applied were the- associate justices.

The judgment of the circuit court must be affirmed.


source: Caselaw Access Project

author: Mr. Chief Justice ENGlish

license: Public Domain

text:
    Loring et al. vs. Flora.
    "Where there is no registered contract, the mechanic’s lien commences at the time that he files his sworn account in the clei'k’s office, and causes an abstract thereof tobe entered in the judgment docket. (Q-oulSs Big., ch. 112, secs. 4-26 Sicks vs. Branton, 21 Ark., 188.)
    If before the lien is thus fixed a' third person obtains a valid title to the property by some legal mode of conveyance, and the mechanic has constructive notice thereof by registration of the conveyance, or actijal notice, his lien is defeated.
    But the pleas failing to state that the defendant had acquired title by any deed or conveyance whatever, they were bad on demurrer,

      A mechanic’s lien is only allowed where the demand exceeds one hundred dollars.
    A plea alleging that the plaintiff’s demand did not exceed one hundred dollars, need not be sworn to.
    And in any case the defect that a plea is not sworn to, should be taken advan- ■ tnge of by motion to strike out, and not by demurrer.
    One of the defendants in a proceeding to foreclose a mechanic’s lien, having been made a party merely because he was alleged to be in possession, claiming by purchase, it was error to enter judgment against him personally for the debt.

      Error to Jefferson Circuit Court.

    Hon. JohN C. MüRRAy, Circuit Judge.
    (xARLAND & KaNdolph, for the plaintiffs.
    In this case, there is neither allegation nor proof that Loring had any estate or interest of any character in, or even any pos session of the lots on which the building was erected. Brown vs. Morrison, 5 Aria. Hep., 217. Gould’s Dig., ch. 112, seo. 1.
    The lien given to the mechanic is dependent upon his compliance with the requirements of sections two and three of the statute. (Gould’s Dig., ch. 112.) And until the account verified by affidavit is filed, no lien attaches. Hicks vs. Brcunton, 21 Ark. 186.
    The'title to the property having passed to Owen, before any lien in favor of Flora had attached, the property cannot be made subject to it. McCullough vs. Caldwell, 5 Ark. A?., 237; 2 Smith’s (H. Y.) Rep., 583.
    The facts stated in the 4th plea were sufficient to defeat the action — no lien being given by the statute where the value of the work, etc.,, does not exceed one hundred dollars.
    The judgment is wholly incorrect — it was a proceeding in rem, and no personal judgment could be rendered. Sec’s 9 etc., ch. 12, Gould’s Dig., 5 Ark. R., 237.
   Mr. Chief Justice ENGlish

delivered the opinion of the court.

This was a proceeding by scire facias to establish a mechanic’s lien.

On the 9tli of April, 1860, James Flora, the mechanic, filed in the office of the clerk of the circuit court of Jefferson county, an account, suborn to, against Horace G. Loring, amounting to $116.00, for work done, and materials furnished, upon a house situated on lots 7 and 8, block 46, Woodruff’s addition to the town of Pine Bluff.

On the same day an abstract of the account was entered in the judgment docket, and a sawe facias issued against Loring, the debtor, and Wm. F. Owen, alleged to be in possession of the premises, claiming by purchase, etc.

Owen filed five pleas, th q first, second, third and fifth alleging, in general terms, that on the 14th March, 1860, and before Flora filed his account in the clerk’s office and caused an abstract thereof to, be entered in the judgment docket, he purchased the building and lots of Loring for a valuable consideration.

ThefouHh plea alleged that the work and labor and materials furnished were not worth one hundred dollars and over.

The court sustained a demurrer to the pleas, and rendered a personal judgment against both of the defendants for the amount of the account, and ordered that the judgment constitute a lien upon the house and lots’until paid, etc.

The defendants brought error.

The object of the first, second, third and fifth pleas was to show that Owen acquired title to the property from Loring before the statutory lien of Flora attached, and thereby defeated it.

Under the statute, where there is no registered contract, the lien of the mechanic commences at the time he files his account, properly made out and verified by affidavit, in the clerk’s office, and causes an abstract thereof to be entered in the judgment docket, and not before. Gould's Dig., 112, sec. 4, 26; Hicks et al. vs. Branton et al., 21 Ark., 188.

If, before the lien of Flora was thus fixed, Owen obtained a valid title to the property, by some legal mode of conveyance, and Flora had constructive notice thereof by registration of the conveyance, or actual notice, his lien was defeated.

In McCulloch vs. Caldwell, 5 Ark., 237, the party contesting the mechanic’s lien, alleged in his plea, in general*terms, that he purchased the property before the lien attached, on execution on sundry judgments,” etc., and the court held the plea bad because the pleader failed to set out the judgments and executions under which he purchased and acquired title.

In this case the pleas are more general than in that, for they fail to allege that Owen obtained title to the property by any deed or conveyance whatever — and the court properly sustained the demurrer to the pleas.

The statute only allows the mechanic a lien where his demand exceeds one hundred dollars. See. 1. It was doubtless the object of the fov/rth plea to put in issue the amount of the demand, and to defeat the lien, if upon trial, it turned out not to exceed a hundred dollars as stated in the account filed, etc.

The only ground of objection taken to the plea in the demurrer, was(ithat the plea was not sworn to.

We know of no law requiring such a plea to be supported by an affidavit, and if it were required, the want of it can only be taken advantage of by motion to strike out, and not by demurrer, as has been repeatedly decided by this court.

The rendering of the judgment against Owen personally, for the debt was a gross error. He was in no way personally liable for the demand, and was made a party merely for the purpose of contesting his claim to the property on which Flora sought to fix his lien, and subject it to the satisfaction of his debt.

For the errors above indicated, the judgment must be reversed, and the cause remanded for further proceedings.


author: Mr. Justice Paieohild

text:
    McKenzie vs. Murphy.
    An alien domiciled in this state, being a householder or head of a family, is entitled to the exemption of his homestead from sale on execution.
    Unless the terms of a statute are entirely free from ambiguity, regard must be had to its known object, to the mischief intended to be provided against, to its general spirit and intent. (Patterson vs. Thompson, 23 Ark.)

    The word citizen is often used as meaning only an inhabitant, a resident of a town, state or county, without any implication of political or civil privileges: and such is the meaning of the word in the homestead law.

      Error to Phillips Circuit Court.

    Hon. M. "W. AlexaNdeb, Circuit Judge.
    Garland & Randolph for the plaintiff
    No person but a free white citizen of this state can claim the benefit of the homestead exemption. Sec. 29, ch. 68, Could’s Digest.

    "We maintain that no one is a citizen unless he is a citizen of the United States. This conclusion is warranted by the provisions of chapter 9, Gould’s Digest, which extended to aliens, or persons not citizens of the United States, rights and privileges, which they were already entitled to if citizens of the state. See secs. 1,5, MU of rights; State vs. Penney, 5 Eng. 621; secs. 2,4, 6, art. 3, State Cons. The definition of the term citizen, would appear to clear up all doubt on the question. It is “ one who is in the enjoyment of all the rights to which the people are entitled, and bound to fulfill the duties to which they are subject.” Amy vs. Smith, 1 Litt. R., 334; Bou/uier’s Inst., vol. 1, p. 64. To obtain the benefit of the act the party must show that he is within all its provisions: that he is, free, white, a citizen of the state, a householder or the head of a family, and a resident on the homestead claimed.
    The court should have excluded the certificate oí the clerk that Murphy was naturalized. It was not competent evidence of the fact. Miller vs. Pei/nha/rt, 18 Geo. P., 239; 1 Williams (Verm.) 621; 2 Jones {H. C.) Law P., 368.
    Pope & NewtoN, contra.

    The certificate of the clerk of Phillips circuit court, though somewhat informal, was sufficient evidence that Murphy had been fully and properly admitted to citizenship by a court of competent jurisdiction; and was conclusive as to all the facts recited therein or necessarily implied. /Spratt vs. Spratt, 4 Pet. Hep., 407; Oampbell vs. Gordon, a/nd wife, 2 Oond. Pep., 343; Towle’s case, 5 Leigh, 743; State vs. Penny, 10 Ark., 621.
    By “ citizen” we generally understand a-person not only domiciled within a state; but entitled to all the privileges and franchises thereof. But this is not the only sense, even in strict law, in which it is used. In ordinary use, it is frequently taken to mean the residents of a place, and so in law the word means nothing more than domicil: 2 Oranch., 64; 7 Oranch., 308 ; 8 Oranch., 335 ; 2 Gal. O. O. R., 268; 6 Hall’s Amer. Law Jowr.

    Citizenship of the United States is not necessary to constitute one a citizen of a state. [Residence determines state citizenship as distinguished from that of the United States. See Clark vs. Clcvrk, 5 Mason, O. O. P., 70 ; Oooper’s Lessee vs. Galbrath, 3 Wash. O. O. P., 546. The same distinction is taken in the constitution and laws of this state- .Art. 4, sec. 2, Oons.; ib. secs. 20, 21,22; art. 2, sec. 4. Gould’s-Dig., ch. 9: It is submitted, that it is not necessary, to entitle the defendant to avail himself of the homestead exemption, to show that he was, or is a citizen of the United States. Nothing was necessary but to show that he was a free white citizen of the state. [Residence, with the intention to make this his permanent home, constituted him a citizen within the meaning of the act.
   Mr. Justice Paieohild

delivered the opinion of the court.

This case was tried in the circut court of Phillips county at its May term, 1860, and was an action of ejectment by tbe plaintiff in error, against tbe defendant in error, for a town lot in Helena, long occupied by the defendant, a householder and head of a family, and a free white person; but the question between the parties was, in the court below, and is, in this court, whether the defendant is entitled to the benefit of the homestead exemption act, that would reserve the town lot, the property in suit, from execution, if the defendant,, in addition to the characteristics noted, was a citizen of this state. To show this, the defendant was permitted to read in evidence a certificate of naturalization which was not a copy of’ the judgment of a court, but a statement by the clerk, that, by act of the court, the defendant was admitted to be a citizen of the United States. This alleged error of the circuit court does not affect the validity of its judgment, if anothér positiop taken by the defendant and declared by the court to be law and applicable to the case, be correct: which is, that the law in question used the phrase, citizen of the state, not in the political sense of citizenship by the laws of the United States, but simply to signify a resident, an inhabitant of the state. For, if this be the right construction of the statute, the defendant was entitled to judgment without any such testimony as his certificate of naturalization would have afforded, if a legal instrument of evidence, and the admission in evidence of the certificate, though not legal to prove the order of naturalization, would not affect a judgment good without any such record.

We are of the opinion that the circuit court well applied the law on the proposition it announced as the law applicable to the case on trial.

The statute, so far as material to the case under consideration, is as follows:

“Every free white citizen of this state, male or female, being a householder, or the head of a family, shall be entitled to a homestead, exempt from sale or execution .... not exceeding one hundred and sixty acres of land, or one town or city lot being the residence of such householder or head of a family, with the appurtenances and improvements thereunto belonging.

“The preceding section stall be deemed and contraed to exempt such homestead, in the manner aforesaid, during the time it shall be occupied by the widow, or child, or children of any deceased person, who was when living, entitled to the benefits of this act.” Secs. 29, 30, ch. 68, Gould's Digest.

The object of the statute, as is plainly to be seen from reading the foregoing-sections, was to afford a home to the family of which the citizen, the householder, was the head, irrespective of his liabilities. The statute intended no individual benefit for the head of the family ; disconnected from the family, the head of it was entitled to no consideration; but the family, when deprived of its head by death, was to have the protection of the act hy holding the land, or town or city lot, upon which the family residence was situated, exempt from execution, so long as either was occupied and used as the residence of the family of which the deceased head was the representative.

Such being the object of the statute, we cannot suppose that the general assembly intended to confer a benefit upon the family of a citizen, native born, or naturalized, which it would deny to that of a domiciliated foreigner, as the one was as likely as the other to need the exemption, and both were in reason and in nature equally entitled to its protection.

An allusion to the facts of this case may afford an illustration of the reasonableness of this conclusion. Murphy, the defendant, was shown, at the trial, to have lived in this state since 1842, except an interval of a few months in New Orleans, in 1850 and 1851, he served as a soldier of the United States for twelve months in its war with Mexico, married in this country, had been the head of a family for ten years, and had a wife and three children at the time of the trial. And by the efforts of both plaintiff and defendant to introduce testimony upon the subject, he endeavored to become naturalized. We cannot preceive any reason why, upon this state of facts, the family of the defendant, or Murphy for it, as its head, is not as fully entitled to the exemption of the statute, as if he had by legal evidence proven a sue-cessful application for participation in the political rights of citizenship of the United States. Yet, if the words of the statute will not support such a construction, it must not be given. Branton vs. Branton, 23 Ark., 578; but as was said, in construing another statute in an important matter, “unless its terms are entirely free from ambiguity, regard must be had to its hnown object, to the mischief intended to be provided against, to its general spirit and intent.” Patterson vs. Thompson, ante 55.

The word “ citizen” is often used in common conversation and writing, as meaning only an inhabitant, a resident of a town, state, or county, without any implication of political or civil privileges ; and we think it is so used in our constitution. In art. IV. sec. 2, of the constitution of 1836, it is written, “ every free white male citizen of the United States, who shall have attained the age of twenty-one years, and who shall have been a citizen of this state sis months, shall be deemed a qualified elector.” Besides being a citizen of the United States, a voter or elector in this state must have been a citizen of the state for six months, which can mean nothing else than to have been a resident of the state for that time, an inhabitant, as is the term used in sec. 4, of the same article, in prescribing that, as a qualification of a representative, in addition to being a free white male citizen of the United States. Section 4, of the declaration of rights, article II, constitution of 1836, is thus : “That the civil rights, privileges, or capacities of any citizen shall, in no wise, be diminished or enlarged on account of his religion.” An alien has civil rights, though he- may not have the civil capacities of conferring or holding offices, and can those rights “ be diminished or enlarged on account of his religion?” Or, if an attempt is made to do this by statute, or without law, would it not be void by this section ? If so, it must be because citizen is used in the sense of resident, or inhabitant, else a wider rule of construction must be adopted so as to hold that an alien is, by implication, free from gain or loss of civil rights on account of cause other persons are expressly saved therefrom, whtbh^l^goolÍ4^ law, would bad logic. So, in sec. 7, of the same article, “ every citizen may freely speak, write and print on any subject — being responsible for the abuse of that liberty.” A law prohibiting this to an unnaturalized foreigner, would be in danger of falling, when met by this inviolate privilege to every citizen.

In the United States courts, their jurisdiction dependent upon controversies between citizens of different states, is believed to have been often upheld by the mere fact of residence, without the existence of political citizenship, as being in accordance with the constitutional provision on that subject, though the authorities are not now accessible.

Upon reason, and upon authority, we think the judgment of the circuit court is right, and it is affirmed.


author: Mr. Chief Justice YoNley

text:
    Rison et al. vs. Farr.
    Legislation is the exercise of sovereign power; but that power is defined to a certainty by the written constitutions of the several states, which determine the extent and limit of the powers delegated to the government and retained by the people.
    The constitution of this'state is the supreme law of the land, under the constitution of the United States; and is of binding force and obligation upon all departments.of the government, and assigns the sphere within which each must act, and establishes bounds beyond which neither can go.
    The courts of justice have the right, and are in duty bound, to test every law by the constitution as the fundamental and paramount law of the land, and to declare every act of the legislature contrary to the true intent and meaning of the constitution null and void, and of no effect whatever.

      Potion 2, Article 4, of the constitution of this state, fixes the qualifications and ...etermines who shall be deemed qualified voters in this state, in .direct, positive and affirmative terms, and these qualifications cannot be added to by legislative enactment.

      A law requiring that the voter shall swear to support the constitution of the United States, does not restrict the right to vote, adds nothing to the qualifications required by the constitution, requires nothing more than the voter is required by law to do, and is free from the objections of unconstitutionality, and is a valid law.
    But to add to the qualifications prescribed by the constitution — to require that the citizen shall swear that he has not done a specified act — that he shall purge himself by oath, of all crimes or any particular crime; otherwise, to deprive him of the elective franchise, is not within the powers delegated to the legislature; and therefore, so much of the 6th section of the act approved May 31st, 1864, entitled “An Act to provide for the manner of holding elections,” as prescribes such oath as a pre-requisite to voting, is directly iu conflict with section 2, article 4, of the constitution, and void.
    The rights and privileges of the citizen cannot be taken away by legislative enactment, directly or indirectly, or otherwise than by duo process of law, that is, by the judgment of a court of competent jurisdiction.
    The pardon of the President of the United States relieves the person pardoned from all penalties attached to the specified act, and restores him to his former rights and privileges.
    A plea bad in part is bad for the whole.

      Error to Pulaski Circuit Court.

    lion. LibeRtt Bartlett, Circuit Judge.
    R. C. NewtoN, for plaintiffs.
    ^ In construing the constitution in reference to the qualifications of electors, the intention of the convention may well be inquired into; and the intention of the convention not to confine, absolutely, the qualifications to those enumerated in the constitution may well be inferred from the fact that, in an election directed by the convention, other qualifications were prescribed. Sec. 2, article IV, State Constitution. Also, Schedule to Constitution, sec. 1.
    It is submitted that all persons proscribed by the act — (Pamph. Acts, 1864, p. 48,) had voluntarily renounced their allegiance to the United States; and had ceased to be citizens thereof; and were not therefore, qualified electors under the state.constitution. But if the law be unconstitutional, still the ministerial officers were bound to conform to the provisions of the act of the legislature, and are not responsible in damages to the plaintiff — the act of the legislature being presumed to be valid until pronounced unconstitutional by the proper tribunal.
    ClabK, WilliaMS & MARTIN and ENglish & Wilshike, for defendant.
    The constitution, by article III, section 2, having fixed the qualifications of electors, it is not within the power of the legislature to add to or diminish those qualifications. When the requirements of the constitution are passed over, there is no limit to the power of the legislature to prescribe additional qualifications.
    That the framers of the present constitution, which was adopted in the midst of the rebellion, did not intend to invest the legislature with the power of adding to the qualifications of electors the provisions of the test oath pleaded in defence, is clearly apparent from seo. 12, art. 1V, requiring the exclusion from the right of suffrage, eto., of persons guilty of certain crimes. But before the vote of anyone can belegally rejected because of the commission of crime, he must have been duly convicted according to the forms of law. Amend. Gon. TJ. S., art. V, 10ih and lith secs., hill of rights; sec. 8, art. Vil, Gons. A man can be deprived, criminally, of his property, liberty or franchises only by indictment, etc., and trial by jury. It cannot be done by mere act of the legislature, or by test oaths. 1 Rent’s Gom., 12; 2 ih., 13; Smith on Gons. & Siat. law, 122 , Taylor vs. Porter, 4 Hill R., 145; Goleé8 Inst., 45-50 ; 10 7erg., 59 ; 3 Story on Gons., 264-661.
    The test oath for the refusal to take which the defendant was deprived, by the judges of election of his right to vote, contains not only a provision that he will support the constitution of the United States, to which there is no objection; but also, that he has not committed acts which would constitute a crime against the United States ; for which he can only be held responsible by criminal prosecution in the courts of the United States; and also that lie has not committed an act, which would be' a crime against the state, and for which he can only be punished by the laws of the state by a criminal prosecution in her court.
    That the act under which the justification is relied on, is palpably in conflict with the constitution of the state and null and void, and should have been so treated by the judges of election, we most respectfully submit, does not admit of a doubt.
    An act of the legislature in contravention of the constitution is no law at all, and furnishes no justification to any officer or individual for his conduct. 1 Cranch., 175; 2 Dallas, 309.
   Mr. Chief Justice YoNley

delivered the opinion of the court.

This was an action on the case, brought by the defendant in error against the plaintiffs in error in the Pulaski circuit court, at the September term, A. D. 1865. ’

The declaration alleges that John W. Bison, Bichard Bragg and Gilbert Knapp were, on the 9th day of October, A. D. 1865, at the county of Pulaski, duly appointed, qualified and acting judges of an election held according tq law, at the market-house precinct, in the city of Little Bock, in the county of Pulaski, on said 9th day of October, A. D. 1865, for a member of the 39th congress of the United States, in and for the second congressional district of Arkansas: and that, after the polls had been duly opened for the reception of votes, Farr, the plaintiff below, being a free white male citizen of the United States, and a citizen of the state of Arkansas, more than six months next before said election, over the age of twenty-one years, and a resident of the county of Pulaski aforesaid, and having taken and subscribed the amnesty oath prescribed in and by the proclamation of Andrew Johnson, president of the United States, bearing date the 29th day of May, A. D. 1865, presented himself before the defendants below, while acting as such judges of election as aforesaid, and offered to vote for Lorenzo Gibson, one of the candidates for representative, from the second congressional district.; but that the defendants below wilfully and contrary to law, refused to permit him to vote at said election, whereby he was illegally deprived of the exercise of the elective franchise guarantied to him by the constitution of the state of Arkansas as a citizen thereof and a resident of said county of Pulaski.

The declaration was filed on the 11th day of October, A. D., 1865, by leave of the court below, and on the 12th day of October the defendants be'ow entered their appearance, and interposed the following plea:

“ Come the said defendants by attorney, and defend the wrong and injury when etc., and say aotio non because they say, that when said plaintiff offered to vote, as in said declaration supposed, they as such judges of said election, as in said declaration mentioned, demanded of him that he should, before depositing his vote, take an oath in accordance with the statute in that behalf, that he would support the constitution of the United States and of this state, and that he had not voluntarily borne arms against the United States,, or this state, nor aided, directly or indirectly the so-called confederate authorities, since the 18th day of April A.' D., 1864, which said oath, the said plaintiff then and there refused to take, wherefore said defendants, as such judges as aforesaid, did then and there refuse to receive said vote of the plaintiff, as they might and as it was their duty to do for the causes aforesaid.”

To this plea the plaintiff below demurred and assigned for cause of demurrer, that the statute relied upon by the defendants below, in their plea, is in direct conflict with the constitution of 'the state of Arkansas, and is null and void and furnishes no legal excuse for refusing the vote of said plaintiff below at said election.

The demurrer, upon argument, was sustained by the court, and the plaintiffs in error electing to rest upon their plea, final judgment was rendered in favor of the defendant in error, by his consent, by the court, a jury having been waived, for one cent cFamages and cost of suit.

To reverse the judgment of the court below, the plaintiffs in error have brought the cause before this court by writ of error, and assign for error, first, that the court erred in sustaining the demurrer to the defendant’s plea, and second, a general assignment of error- — -thus presenting here for adjudication the constitutionality of the 6th section of the act of the legislature of the state of Arkansas, entitled “ an act to provide for the manner of holding elections,” approved May the 31st, A. D., 1864.

Before attempting to ascertain whether the 6th section of the act above referred to is in conflict with, and repugnant to the constitution of this state, we will attempt to define the limitations which that instrument imposes upon the powers of the legislative and other branches of the government of the state of Arkansas ; how far and by what principles, legislative power is controlled under our form of government.

Legislation is the exercise of sovereign power, and under some forms of government, the power of the legislature is supreme, and un controlable, knows no limits, and is subject to no restrictions. The power and jurisdiction of parliament, says Sir Ed-' ward Coke, are so transcendant and absolute that they cannot be confined, either for causes or persons,. Within 'any bounds. In England, the powers of parliament are without limit, and are subject to no check; because, under that form of government, there is no written constitution or fundamental law, by which the validity of a statute can be tested; and all that can be said of it is, that it is an act of parliament and must be obeyed.

But such is not the case in America; for here, every state in the union has a written constitution, which defines to a certainty what the powers of each branch of the government are, and determines what rights the people have delegated to their representatives, and what they have retained or created for themselves by their organic law.

Patterson, J., in Vanhone's Lessee vs. Dorance, 2 Dallas, 308, in defining what a constitution is, says: “ It is the form of government delineated by the mighty hand of the people, in which certain first principles of fundamental laws are established. The constitution is certain and fixed; it contains the permanent will of the people, and is the supreme law of the land; it is paramount to the legislature, and can be revoked or altered only by-the authority that made it. The life giving principle and the death dealing stroke must proceed from the same hand.”

And, in defining what legislatures are, the'same learned judge says: “ They are creatures of the constitution; they owe their existence to the -constitution: they derive their powers from the constitution. It is their commission, and therefore all their acts mugt be conformable to it, or else they will be void. The constitution is the work or will of the people themselves in their original, sovereign and unlimited capacity: law is the work or will of the legislature in their derivative or subordinate capacity. The one is the work of the creator, the other of the creature.”

The constitution fixes limits to the exercise of legislative authority, and prescribes the orbit within which it must move. In short, the constitution is the sun around which all legislative, executive and judicial bodies must revolve; and that, whatever may be the case in other countries, yet in this there can be no doubt, that every act of the legislature repugnant to’the constitution, is null and void.

The constitution of the state of Arkansas is then, the supreme law of the land, the commission or power of attorney which the people of a state have given to their representatives, defining and limiting the bounds within which they must act, and fixing the power which each department of the government may exercise ; and is the supreme law of the (land, and is fixed, permanent, uncontrolable and transcendant in its nature and operation, and cannot be revoked or altered except by the power that made it.

The constitution of this state is of binding force and obligation upon all departments of the government, and assigns the sphere within which each must act and. establishes bounds beyond which neither can go. It is the work of the people, speaking in their original capacity, and establishes the permanent conditions of social alliance, and furnishes the test by which every act of the legislative, as well as of the executive and judicial departments must be tried, and to which every act done by either must conform.

The constitution is the fortification within which the people have entrenched themselves for the preservation - of their rights and privileges, and every act of the legislature, or other department of government, which infringes upon any right declared in the constitution, whether it be inherent in the people or created by that instrument, is absolutely void.

Rector vs. State of Arkansas, 6 Ark. Rep., 187; Eason vs. State of Arkansas, 11 Ark. Rep., 481; Marbury vs. Madison, 1 Cranch, Kinnie's Law Comp., vol. 3, p. 314, and the numerous authorities there cited.

In the case of Houston vs. More, 5 Wheaton, the court said; “ The law with us must conform in the first place to the constitution of the United States, and then to the subordinate constitution of this particular state, and if it infringes upon the provisions of either it is so far void.”

By a course of judicial decisions reaching from the earliest history of American government to the present day, without a dissenting voice it has been adjudged that courts of justice have the right, and are in duty bound, to test every law by the constitution, as the fundamental and paramount law of the land, governing all derivative power and the exercise thereof. The judicial department with us is the proper power, under the constitution, to declare the constitutionality of a law, and every act of the legislature contrary to the true intent and meaning of the constitution, will be declared by the courts null and void, and of no effect whatever.

To contend that this is not so would be to assert, that the legislative branch of the government is supreme in its authority; that the creature is mightier than the- creator; that the agent has greater power than his principal, who has commissioned him and sent him out to transact business under a written authority: that one co-ordinate and concurrent branch or department of the government, subordinate to the constitution is absolute over the departments, and can control,- according to its will and pleasure, all others. It would be to assign limits to legislative power by constitutional provisions, restraining the legislative body within certain bounds, and then to declare, that, although it had passed beyond the limits assigned to its power, and violated the authority designed to govern it, yet that its action is valid and of binding force and obligation upon the other departments of government, and has the effect to take away the very rights from the people, which they have secured to themselves by constitutional provisions. A doctrine too monstrous to be for a moment entertained, and in every way disconsonant to the fundamental principles and theories upon which our government is based, and one which in practice would soon sweep away every vestige of the rights of the people, and reduce them to subjection to absolute power, or what would be worse to a state of anarchy and confusion, where life, property and every right would be left to the mercy of the legislative power.

With these principles before us, we will proceed to determine whether the act of the legislature of the state of Arkansas, under which the plaintiffs in error justify'their conduct in refusing to permit the plaintiff below to vote, is a constitutional law; for if so, it is valid and binding, and the plaintiff below had no right to vote, and .was deprived of nothing which belonged to him: but upon the contrary, if the law relied upon by the defendants below is repugnant to the constitution of this state, then it is void, and can afford them no justification or excuse for what they did.

Section 2 of article i of the constitution of the state of Arkansas, provides that “ every free white male citizen of the United States who shall have attained the age of twenty-one years, and who shall have been a. citizen of the state six months next preceding the election, shall be deemed a qualified elector, and be entitled to vote in the county -or district where he actually resides.” ■

The plaintiff below, by his declaration avers that he was possessed of all the qualifications required by this section of the constitution, with the additional fact that he had taken and subscribed the oath prescribed by the proclamation of the president of the United States bearing date the 29th day of May last; and the defendants below do not traverse or in any manner put in issue the truth of these allegations, but confess the truth of them by way of confession and avoidance the 6th section of the act of the legislature of the state of Arkansas above referred to, and which is in words as follows:

That each voter shall, before depositing his vote at any election in this state, take an oath that he will support the constitution of the United States and of this state, and that he has not voluntarily borne arms against the United States or this state, nor aided, directly or indirectly, the so-called confederate authorities since the 18th day of April, 1864; said oath to be administered by one of the election officers ; and this act t.o take effect from and after its passage.”

Section 2 of article 4 of the constitution, fixes the qualifications, and determines who shall be deemed qualified voters in this state in direct, positive, and affirmative terms, and these qualifications cannot be added to by legislative enactment

The convention, when it formed the constitution, after having enunciated the time honored principles, found, we believe, in all American constitutions : “ That all power is inherent in the people, and all free governments instituted lor their peace and happiness,” declare by the section of the constitution above quoted, who shall be deemed qualified electors in this state, and have fixed all the pre-requisites necessary to qualify a citizen to exercise the elective franchise.

The framers of the present constitution of this state had in view, and represented all the people thereof, men, women and children, white, colored and Indians, and recognizing, as they declare in the preamble of the constitution, the'“ legitimate consequences of the existiug rebellion,” saw fit to provide that every white male citizen of the United States, over the age of twenty-one years, and 'who shall have been a citizen of this state six months next preceding the election, shall be deemed a qualified voter in the county or district in which he actually resides, and no person having these qualifications can be deprived of the exercise of the elective franchise by mere legislative enactment, while the constitution remains unaltered. Indeed the right of those having the constitutional qualifications to vote, is founded in the fundamental law of the land, and cannot be legislated away. The right of suffrage in this state, if not an inherent, is at least a constitutional right, and whoever possesses the required qualification, cannot be restrained from the exercise of that right except by the alteration of the constitution, and any law infringing upon that right as vested by the constitution is null and void.

Then the inquiry is, has the 6th section of the act above copied the effect to abridge the right of suffrage conferred by the constitution — does that'law require other and different qualifications than those required by the constitution — in short, is the law repugnant to the constitution ? The answer to these inquiries will be arrived at by an examination of the law in question.

The sixth section of the act under consideration has a two-fold operation: one prospective; and the other retrospective.

That part of the law which requires the voter, before depositing his vote, to swear that he will support the constitution of the D nited States, and of this state, is prospective in its operation, and looks to the future conduct of the voter, and requires nothing more oí him than by law he is bound to do. This part of the law does not look into his past history, or scrutinize his antecedents. It does not demand that he shall purge himself of treason against the United States or this state. It does not have the effect to restrict the right to vote as conferred by the constitution, nor does it add to the qualifications required by the constitution; and is therefore free from the objection of unconstitutionality, and is as we conceive, thus far a valid law. Bank of Hamilton vs. Dudley, 2 Pet., 526; 2 Blackf., 8.

But, how is it with the residue of the oath required ? That part of the law which requires the voter, before depositing his vote, to swear that lie has not voluntarily borne arms against the United States or this state, nor aided the so-called confederate authorities since the 18th day of April, A. .D., 1864, is retrospective and calls upon the voter to purge himself of treason against both the United States and this state, before he is allowed to vote : and although this part of the law is professedly enacted, “ To PROVIDE THE MANNER OE HOLDING ELECTIONS,” it ÍS, in effect, nothing but a prohibition upon the right to vote as secured by the constitution ; and is of the same import as an affirmative provision that no person who has voluntarily borne arms against the United States, or this state, or aided the so-called confederate authorities, since the 18th day of April, 1864, shall be allowed to vote at any election in the state of Arkansas. And to admit that the. legislature may do this, would be to declare that part of the constitution which defines the qualifications of a voter, absolutely nugatory, and would turn section 2 of article IT, of our constitution into the merest nonsense. And clearly, if the legislature cannot, by direct legislation, prohibit those who possess the constitutional qualification to vote, from exercising the elective franchise, that end cannot be'accomplished by indirect legislation. The legislature cannot, under color of regulating the manner of holding elections, which to some extent that body has a right to do, impose such restrictions as will have the effect to take away the right to vote as secured by the constitution.

The legislature may compel a voter to take an oath to the effect that he possesses the qualifications prescribed by the constitution; and may fix the time of holding elections, and the manner of making returns, etc.; for those things are within the constitutional powers of the legislature.

And again, it is to be observed that that part of the law which requires the voter to swear that he has borne arms against the United States, or this state, or aided the so-called confederate authorities, is punitive in its operation» It is attempted by this provision to ascertain whether the voter has offended within- the meaning of the act; and if by the searching operation of the oath prescribed he is found guilty, the penalty annexed is the loss of the right to vote, and that too by a process entirely unknown to our constitution and laws. So much of the oath as relates to bearing arms against the United States and aiding the so-called confederate authorities, refers directly to offences against the gov-,, ernment of' the United States, and as such are not within the powers and jurisdiction of this state to punish even by due process of law; and much less can the legislature, by mere legislation, punish such offences, and as a penalty take away the right of suffrage from a qualified voter of this state. These are crimes against the United States, and can only be punished or forgiven by that government; and are not cognizable before any authority or tribunal of a state. And the chief magistrate of the United States, acting upon this principle, by his proclamation of the 29th of May last, in conformity with the authority conferred upon him by the constitution of the United States, and the act of congress made in pursuance thereof, has most graciously extended pardon and amnesty to a large majority of the citizens of this state, who had engaged in the late rebellion, declaring that all persons not excepted by said proclamation from the benefits thereof, who would take and subscribe a certain oath thereby prescribed, should receive full amnesty and pardon.

Within the provisions of which proclamation the plaintiff below has brought himself by the averments contained in his declaration. Hence, whatever might otherwise have been the effect of his having borne arms against the United States, or of his having aided the so-called confederate authorities, he has now been fully pardoned and forgiven, and is no longer amenable to any authority for his acts in that behalf; and to deprive him of his right to vote on account of his partieipaney in the war against the United States, would be to punish him for a crime of which he has been .pardoned; or, in other language, to’ inflict a penalty where there is no legal guilt.

But if he had not taken the amnesty oath, still his having borne arms against the United States would not, as we will hereafter show, have worked a forfeiture of his right to vote until he had been convicted- thereof by due process of law.

Then as to that part of the law that requires the voter to take an oath that he has not borne arms against this state since.the 18th day of April, A. D. 1864.

To bear arms against the state of Arkansas, in the sense of the law under consideration, is to levy war against the state, and is treason, and as such is indictable, and upon due conviction thereof, the offender, by the law of this state, is punishable with death, and in.that case there would be an end of his voting.- But the offender cannot be convicted by an act of the legislature. That body, by the mere exercise of legislative authority, cannot declare a forfeiture. The legislature cannot enact, apply and execute a law. The same department under our form of government, cannot act as legislator, judge and executioner. Such a course would be in open and palpable violation of section 2, article III, of the constitution of the state of Arkansas, which ordains that, no person or collection of persons being of the one ’"department of the government shall exercise any power belonging to either of the other departments, except in the instances hereinafter expressly directed or permitted: and the exception herein contained refers to trials by impeachment.

How, then, can a right or privilege be forfeited under our form of government ?

The constitution of the state of Arkansas answers this interrogatory. Sections 10, and 14, of the bill of rights put the question forever at rest. The 10th section of the bill of rights declares that “ no man shall be taken or imprisoned, or disseized of his freehold liabilities or privileges, or outlawed or exiled, or in any manner destroyed, or deprived of his life, liberty, or property, but by the judgment of his peers or the law of the land.” And the 14th section of the bill of rights provides that “ no man shall be put to answer any criminal charge, but by presentment, indictment or impeachment, except as hereinafter provided,” wbicli exception refers to petty offences made cognizable before justices of the peace.

The 10th section of our bill of rights is taken, with slight variation, from magna charta, and is found, in substance, in all American constitutions, and its meaning is well settled, both in this country and in England, by numerous adjudications. CháN-CelloR KbNT says: “It may be received as. a proposition, universally understood and acknowledged throughout 'this country, that no person can be taken or imprisoned, or disseized of his freehold or estate; or exiled or condemned, or deprived of his life, liberty or property, unless by the law of the land, or the j udgment of his peers. The words, by the, law of the land, as used originally in magna charta, in reference to this subject, are understood to mean due process of law, that is, by indictment or presentment of good and lawful men : and this, says Lord Coke, is the true sense and exposition of those words. ' The better and larger definition of due process of law is, that it means law in its regular course of administration through courts of justice.” 1 Kent's Com., 612 ; 2 ib., 13 ; Story on the Cons., vol. 3, p. 264, and 661; Coke's Inst., 45-50.

And Mr. Justice BeoNSON, commenting upon the provision in the constitution of the state of New York, which provides that “ No member of this state shall be disfranchised, or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land or the judgment of his peers,” says: “The words, by the law of the land, as here used, do not mean a statute passed for the purpose of working the wrong. That construction would render the restriction in the constitution, absolutely nugatory, and turn this part of the constitution into merest nonsense. The people would be made to say to the two houses, you shall be vested with the legislative power of the state, but no one shall be disfranchised, or deprived of any of the rights or privileges of a citizen, unless you form a statute for that purpose, or in other Words, you shall not do wrong unless you choose to do it.” Taylor vs. Porter, 4 Hill, 145.

From these and many other authorities that might be cited, it is plain that no one can be deprived of his rights or privileges, unless the matter be adjudged against him by due course of common law.

Then it is clear that although treason is the highest crime known to the laws of this state, the mere commission of that offence will not in itself work a forfeiture of the rights or privileges of the offender, but before he can be deprived of all or either of them, he must be convicted by due process of law. From this view of the case it is evident that, that part of the 6th section of the act of the legislature of the state of Arkansas, entitled “ an act to provide for the manner of holding elections,” approved May 31st, 1864,'which requires the voter before depositing his vote to swear that he has not voluntarily borne arms against the United States or this state, nor aided the so-called confederate authorities since the 18th day of April, 1864, is repugnant to, and in open conflict with the constitution,' and in every point of view is an entrenchment upon the rights secured by the fundamental law of this state, and is therefore absolutely null and void. The constitution having .fixed the qualification of an elector in this state, those possessing the qualifications requir-' ed, can no more be deprived of the right to vote by legislative enactment, than they can be deprived of the right to trial by jury, or the right to worship God according to the dictates of their own consciences.

Part of the law under which the plaintiffs in error justify, being void for unconstitutionality, and their plea being entire, and bad for part is bad for the whole, (Chit. Plead, vol. 1. p. 146,) and can afford them no justification or excuse for refusing to accept. the vote of the defendant in error, at said election.

Finding no error in the proceedings or judgment of the court below, the judgment of that court must be and is hereby affirmed.


text:
    Gregory vs. Williams.
    Several notes or obligations, each within the jurisdiction of a justice of the peace, are several demands, and cannot be united so as to confer jurisdiction upon the circuit court, as held in Berry vs. Linton, 1 Arfo, 252; but if the indebtedness is an open account, though composed of several items, of different dates, and arising out of different dealings and transactions between the parties, the aggregate amount constitutes the demand, and if that is within the jurisdiction of the circuit court, the items cannot be separated so as to bring several suits before a justice of the peace.
    It may be more regular, where a demand above the jurisdiction of a justice, has been divided and several suits brought, to consolidate the suits, on appeal, in the circuit court, and dismiss for want of jurisdiction ; but if the cases be severally dismissed, such practice is not cause of error.
    Where a justice of the peace has no jurisdiction, none is conferred on the circuit court by appeal; and it is error in dismissing the case, to. render judgment against the appellant for costs.

      Error to Dallas Circuit Court.

    Hon. Libbkty Bartlett, Circuit Judge.
    Watkots & Bose, for the Plaintiff.
    1. These several cases were not consolidated in the circuit court, nor before the justice; and were as separate and distinct as if between different parties or in different courts.
    2. Each one of these claims seems to be upon a wholly separate and distinct cause of action. Berry vs. Dmton, 1 Arle., 251.
    3. If the justice had no jurisdiction, the circuit court acquired none by appeal, and it was error to render judgment for cost on dismissing the case. 1 Ark., 55; 1 Eng., 182; 4 id., 463.
   Mr. Chief Justice YoNley

delivered the opinion of the court.

The plaintiff in error brought his three several suits by attachment, before Thomas Peterson, a justice of the peace in and for Holly Springs township, in Dallas county, on the fourth day of October, 1865, against the defendant in error, and filed with said justice three separate bills of items, the first for eighty dollars, and the second and third for seventy-five dollars each, for the hire of a negro girl of the plaintiff in error, for the years 1862, 1863 and 1864 respectively.

On the return day thereof, the writ of attachment having been personally served upon the defendant, both he and the plaintiff appeared in person and the said causes were severally submitted to the justice upon the testimony; and judgments were rendered therein in favor of the plaintiff; from each of which judgments the defendant appealed to the circuit court of Dallas county.

At the March term, 1866, of the Dallas circuit court, both parties appeared by their attorneys, and the defendant in error filed his motion in the cause standing first upon the docket of the said circuit court, moving the court to dismiss said cause, and the two others, which are referred to in said motion by their docket numbers, from the docket of said court, because said several suits were instituted before the same justice of the peace, by the said Gregory, against the said Williams, upon three accounts which constituted but one demand, and that the amount in controversy was the aggregate of said several accounts sued upon, which when taken together amounted to the sum of two hundred and thirty dollars, which sum was over the jurisdiction of the justice of the peace; and also filed a like motion in each of the other causes.

The several motions were submitted to the court, and by the court sustained, and a judgment of dismissal and for costs was rendered in each case against the plaintiff in error. To which rulings and decisions of the court Gregory excepted, and has brought the said causes before this court by writ of error.

The errors assigned are: 1st. The dismissal of said suits. 2d. The rendering of judgments for costs against the plaintiff in error.

The jurisdiction of every justice of the peace, as enlarged by the recent constitution of this state, extends to’actions of debt and assumpsit and all other actions founded upon contract, where the debt or balance due, or damage claimed, excluding interest, does not exceed two hundred dollars: and a justice of the peace has no jurisdiction of a demand for a larger sum of money, and the sum in controversy is the criterion of the jurisdiction of a justice of the peace, and not the form of action. Walker as com. vs. Byrd, et al., 15 Ark., 33.

The doctrine contended for by the plaintiff in error is, that the amount due him for the service of the negro girl for each year constitutes a separate demand, distinct in itself, and for the recovery of which he had a right to institute a separate and independent action. That the respective sums due him arose.upon distinct contracts, and fell due at different times, and do not therefore constitute one debt or demand; but that each is a separate demand, and in support of his position relies upon the case of Berry vs. Linton, reported in the 1st vol. Ark. Rep., p. 252.

The case of Berry vs. Linton, it is believed, does not sustain the position assumed by the plaintiff in error; for, in that case, a suit was brought in the circuit court upon three distinct writings obligatory, amounting to the sum of one hundred and twenty dollars and forty cents; and this court held that the sum of money specified in each of said writings obligatory constituted a separate demand, and that the sum due by each and not the aggregate of all must be looted to to ascertain to what' jurisdiction that suit belonged, and that the plaintiff could not confer jurisdiction upon the circuit court by joining in his declaration several distinct demands, each for less than one hundred dollars, although they amounted in the aggregate to over that sum.

The several writings obligatory, upon which that action was brought, were, each in itself, a distinct demand, a separate debt, evidenced by a written obligation, and severed from each other by the act of the obligor, in signing his obligation therefor. Barns vs. Holland, 2 Mo., 34. Had that suit been upon an account for the sum of one hundred and twenty dollars and forty cents, composed of three different items, of different dates, and arising out of different contracts, can it be supposed that the court would have held that each item in the account constituted a separate demand, and should have been declared on as such? Would the court have looked to the items of the account to have ascertained the sum in controversy, or to the aggregate amount of the items contained in the account? We certainly think to the latter only.

A writing obligatory, or a promissory note, as between the parties thereto, is a separate and distinct demand, so made by the parties, and the' fact that a plaintiff holds several such instruments against the defendant does not alter the distinctive character of either, and each remains, notwithstanding, a separate demand, and the sum of money specified in each, where several of such writings obligatory or promissory notes are sued upon, and not the aggregate amount of all, is the criterion by which it is to be determined whether the justices’ court has jurisdiction.

The case of Berry vs. Linton decides that the jurisdiction of circuit or justices’ courts of this state is, by law, made to depend upon the amount of each separate demand in controversy between the parties; and that, while it is expressly enunciated that several separate and' distinct demands cannot be added together for the purpose of giving the circuit court jurisdiction, the decision is equally as apposite to show that a demand which is over the justice’s court cannot be severed and split up for the purpose of conferring jurisdiction upon that court. That decision is to the effect, that it is not the aggregate of separate demands, but each separate demand which determines the question of jurisdiction, and this is the full length to which that decision has gone.

While it is true that every written acknowledgment of indebtness, which may be made the foundation of an action at law, is a separate demand, it is not true, as a proposition of law, that the several items of an open account, although of different dates and arising out of different dealings and transactions between parties, are each separate demands, and can be sued upon as such. All the items of indebtedness, in the nature of accounts, subsisting between the parties at the time of the commencement of a suit for the recovery, constitute the debt, demand, or sum in controversy, and is an entire demand: and if tbe aggregate of all tbe items amounts to a sum beyond tbe jurisdiction of tbe justice, tbe difficulty cannot be obviated, and jurisdiction conferred upon that court by bringing suits upon tbe several items of the account. Willard vs. Sperry, 16 John., 111.

This view, we think, is sustained by tbe principles to be deduced from the decision of this state bearing upon this question, and is in harmony with tbe provisions of tbe constitution and laws of this state, which, while they were designed to furnish the . plaintiff a cheap and convenient remedy for the collection of small demands, were not intended to afford him the means to vex and harrass the defendant with a multiplicity of suits for the recovery of a single debt.

If the principle contended for by the plaintiff in error can be applied to this case, it is difficult to see why it would not apply to all other cases where there are different items in the account, which arose out of transactions between parties which took place on different days. The merchant, who should sell to his customer, on account, on twenty different days in the year, a bill of goods to the amount of two hundred dollars, could, at any time after the sale of the last bill, institute twenty distinct suits before a justice of the peace, and if his right'to do so should be questioned, he could reply with equal force: each is a separate demand. The bill of goods were bought on different days; there was a distinct contract or bargain in respect of each sale and purchase. And this would be equally true in all other instances. If this was declared to be the law of this state, it would soon come to be that all accounts embracing items of different dates would be split up, and separate suits brought in justice’s courts upon the fragments, to the great embarassment, inconvenience and costs of the defendant; and many weighty questions of law, involving large sums of money, would thereby be submitted to these inferior tribunals for decision, which by the policy of our law were designed to be determined elsewhere.

The plaintiff in error, at the time of instituting his suits in the justice’s, court, did not have three distinct'demands, or causes of action, against the defendant. The three bills of items filed by the plaintiff in error constituted but one account between the párties, and the aggregate of these bills constitutes the amount of the.demand claimed by him, and is by Ms own showing over the jurisdiction of a justice of the peace.

It would, perhaps, have been more regular, in point of practice, had the several suits been consolidated, and a single judgment .of dismissal rendered; but it is believed that the omission to do this did not vitiate the judgments of dismissal, because it abundantly appears from the transcript of the record that the several judgments of dismissal .were rendered in view of the fact that the several sums of money sued for constituted but one demand against the defendant, and that demand was over the justice’s jurisdiction.

Upon the whole, this court is of the opinion that the judge of the circuit court did not err in dismissing said suits, for want of jurisdiction in the justice’s court.

But since the justice’s court had no jurisdiction, the appeal could confer none upon the circuit court. McKee vs. Murphy, 1 Ark., 55. The court below manifestly erred in rendering judgments against the plaintiff in error for costs; aud for this error the judgments of the circnit court must be'reversed, with instructions to that court to set aside said .judgments and enter up judgments of dismissal only.

Judgment of .the circuit court reversed.


author: Mr Justice Haepee

text:
    The State vs. Crytes.
    The verdict of a jury, when not totally unsupported by the evidence, will not be disturbed by this court, (JLindsay vs. Wayland, 11 Ark., 3S5,) though the weight of evidence be against it.

      Appeal from Green Circuit Cov/rt.

    Hon. W. B. CaiN, Circuit Judge.
    Mr. Attorney General JoedaN, for the state.
    "WatKINS & Bose, for the appellee.
    There being no question of law reserved, this court will not reverse the judgment upon the mere weight or preponderance of evidence, unless the verdict shocks one’s sense of justice. 15 Arle., 403; 18 id., 598; 19 ib., 559.
   Mr Justice Haepee

delivered the opinion of the court.

At the September term of the circuit court of Green county, 1865, two indictments were found ágainst the appellee for vending ardent spirits in less quantities than one quart without license. The one, on which this appeal is taken, was against David Crytes alone: the other against David Crytes and one John Crytes, both charging the same character of an offence, but fixing the times, the one in July 1865, the other in September, 1865. It appears from the record that a trial was first had upon the indictment against David Crytes, the appellee, and John Crytes, and that the appellee was acquitted. On the trial of this cause, the aforesaid acquittal was plead in bar, as also the plea oí “ not guiltyand the only question appearing from the record was, whether the acquittal in the cáse of the State vs. David Crytes, the appellee, and John Crytes, was for the same offence charged in the indictment in this case.

' On this question, the evidence strongly indicates that two separate offences were contemplated in the two indictments, on which two convictions might have been properly had against the appel-lee, on sufficient proof. It was for the jury to ascertain and determine the question of fact involved, from the testimony ; and' it cannot be said that the evidence in the record precludes the possibility that the offence for which appellee had been acquitted was the same charged against him in this case. The jury evidently took that view of the testimony, and found their verdict of “not guilty,” on that conclusion. The usual judgment was rendered and the states’ attorney asked for a new trial, on the ground that the verdict was contrary both to law and evidence, which the court refused.

The error assigned is, that the court erred in refusing to grant a new trial.

New trials are usually granted where manifest injustice has been done, and reasonable probability exists that, in another trial, the result would be changed.

Though in the opinion of this court the weight of evidence be against the conclusion of the jury, it does not follow that there was error in refusing to grant the new trial by the court below. - In the case of Lindsay vs. Wayland, 17 Ark., 385, it is held that the verdict of a jury when not totally unsupported by evidence, even though the weight of evidence is against the verdict, will not be disturbed by the court.

Holding this decision to be the correct rule, this court think there is no error in the proceedings and j udgment of the court be'low; and the same is affirmed.


author: Mr. Justice Harper

text:
    Osborn, Ex parte.
    "Where there does not appear to'be manifest error in the circuit eourt in refusing bail in a criminal case, this court will not grant it.

      Petition for Habeas Corpus to admit to bail.

    Gallagher & NewtoN, for petitioner.
    An. indictment for a capital offence does not raise a presumption of guilt against the prisoner so strong as not to be rebutted by him; and upon an application to be admitted to bail, the court may go behind the indictment. White, ex parte, 4 Eng., 222.
    The only capital homicide is murder in the first degree; which is a willful, deliberate, malicious and pre-meditated hilling; and the. proof of such a killing must be evident or the presumption great; otherwise the prisoner has the right to be let to bail. Seo. 16 bill of rights; seo. 1, eh. 51 Gould’s Pig. And it is submitted that the facts in this case do not show such a killing as should constrain this court to refuse the application.
    The principles decided in Pitmcm vs. State, 22d Ark., a case more outrageous than this, though resembling it in some particulars, are referred to.
    The rule laid down in Good et al. ex parte, 19 Ark., and Jones ex parte,. 20 Ark., for reviewing the decision of the circuit court in refusing bail, has been strictly followed in this case.
    JordaN, Attorney General, contra.
   Mr. Justice Harper

delivered the opinion of the court.

This is an application to review the decision of the circuit court of Saline county at the March term 1866, refusing to grant the petitioner bail. The case is exhibited here by a duly certified transcript of the record which contains the whole case including tbe indictment for murder in tbe first degree, with tbe evidence adduced on tbe motion for bail, and tbe opinion of tbe court overruling said motion. Tbe petitioner also alleges that tbe judge of said circuit court of Saline county is now absent from tbe state, as petitioner is advised and believes, to remain absent several months.

Tbe case of Good et al., ex parte, 19 Ark., page 410, is referred to by petitioner in support of bis application to review the decision below and grant him bail. In that case it is held that, if upon tbe bearing of an application for bail, tbe circuit court or judge refuse to admit tbe prisoner to bail, upon a proper application to this court, and showing of tbe facts on which tbe judge acted, if tbe showing be deemed sufficient, a certiorari would be awarded to bring up a transcript of tbe papers and proceedings upon tbe application for bail, for revision, and if it was determined that tbe prisoner was entitled to bail, this court might bring him before it by habeas corpus, and admit him to bail, or if deemed more convenient, direct the circuit judge by tbe proper mandate to do so. Regarding this decision as fully sustaining tbe authority of this court to x’eview tbe decision of tbe court below in this case, and to grant bail if there is manifest error, tbe question for this court to determine is, is there manifest error in the decision of tbe court below overruling the application for bail.

Tbe offence charged is murder in tbe first degree, which is not bailable. It is claimed in tbe petition that tbe facts do not show that tbe prisoner bad pre-meditated tbe killing when he went to tbe bouse of deceased with bis gun; but that the killing was more probably from a sudden determination formed after bis arrival there, and brought on by the unfortunate and untimely interference of the wife of tbe deceased, and that tbe offence charged can only amount to murder in tbe second degree at most and therefore bailable.

Tbe case is substantially this. Tbe petitioner, George Osborn is charged with tbe murder of Joseph Price, on tbe Ith day of March, 1866, in tbe county of Saline. They bad bad a difficulty of not many days standing. The deceased had accused prisoner of stealing his meat, and with extremely rough language, had declared that he, the deceased, would hill the prisoner before sun-down of the very day on which it turned out that he himself was hilled by the prisoner, or before the next morning, saying that prisoner had stolen enough of the deceased’s lard to grease his way to hell. One of the witnesses was so impressed with the earnestness of these threats-that she even deceived the deceased as to where prisoner then was, giving as a.reason for-that- deception, -that she feared the deceased would slip around and hill the prisoner (the petitioner here) before she could put him on his guard. She testifies, however, that she found the prisoner and informed him of these threats by deceased. It is in-proof that deceased was fully armed and mahing visible demonstrations to carry his threats into execution. The prisoner, with full knowledge of these threats and demonstrations, prepares himself with a gun and goes to the house of the deceased, instead of remaining away lihe one determined to act only on the defensive. He went there too, about sun-down of the day on which, according to the threats, his own life was to terminate. He goes directly to the door of the house in which deceased was sitting down, with his gun in hand raised as if to fire, and says:. “ Joe, this is the time.” Deceased says: “ what did you say, George,” at the same time rising and advancing towards the prisoner, his pistol being on a table in the room, and gun in rack over the door— the wife of the deceased immediately interposing and getting hold of the gun in the hands of the prisoner: prisoner says: “ get out of the way Esther, or I will put this load in you;” and only delaying the shot long enough to pugh aside the woman, fired the fatal shot. Deceased fell on the fire and expired in a few minutes.

The question is, what did prisoner go to the house of the deceased for? Was it, or was it not to kill the deceased ? The question is not whether prisoner thought that, under the law and facts, he would be justified in killing deceased; but whether, according to tbe evidence, he went to the house of the deceased on that day determined to kill him.

It is contended that the facts warrant the conclusion that the determination on part of petitioner was only, under a demonstration of arms, to bring about an adjustment, and that the determination to kill was only formed after his arrival there, and precipitated by the foolish and inopportune conduct of the wife of deceased; and that, therefore, the case could only be murder in the second degree and bailable.

The court below thought otherwise and this court is called upon, from the facts stated, to say there is manifest error in the ruling of the court below in refusing bail.

The counsel for petitioner refers, also, to the case of Pitman vs. The State, 22d Ark., 364, as a case furnishing authority for the hypothesis that this case is one in which the court below should have granted bail. A close examination shows a very marked difference in the two cases. These threats were mutual, and each party had been seeking the other with deadly weapons, and when Thompson, the deceased in that case, was fired upon by Pitman, he was himself advancing with a double-barrel gun towards Pit-man, and as he halted some 40 yards from Pitman, received the fatal shot from Pitman’s gun. The cases, then, are entirely dissimilar.

This court, on a careful examination of all the testimony in this case, cannot say that there was manifest error in the court below in refusing bail to petitioner. The motion for habeas corpus is therefore overruled.


text:
    Hawkins vs. Dean.
    The ease of Matlock vs. Purefoy, 18 Ark., 492, that the omission of the words “ for value received,” in describing the note, in the declaration, though contained in the note sued on, is not a variance for which the judgment will be reversed, approved.

      Appeal from Pulaski Circuit Cowi't.

    Hon. LibeRty Bartlett, Circuit Judge.
    Gallagher & Newton, for appellant.
    The words “ for value received,” were a material part oí the note and should have been averred in the declaration, as descriptive of the contract. 10 J. B., 418; Lawes Assumpsit, '78-9,106; 6 Bast., 567; and especially Bossiter vs. Marsh, 4 Conn., 198.
    The case of Matlock vs. Purefoy, 18 Ark., 493, we respectfully submit, is erroneous. The question is not whether a promissory note imports a consideration, but whether, when the note states that it is given for “ value received,” those words are not a material part of it, and must be averred.
    Clark, "Williams & Martin for appellee.
    That the words “ promise to pay” in a promissory note, import á consideration received, and that the declaration need not contain the words “ value received,” even where the note does, has been settled by this court, and is the universally received doctrine in' all the courts. See Matloek vs. Purrefoy, 18th Ark., 492; Story on Prom. Motes, sec. 51.
   Mr. Justice Harper

delivered the opinion of the court.

This was an action of assumpsit on a promissory note. Defendant below first plead, in abatement, a variance between the writ and declaration; to which the court sustained a demurrer.

Defendant then, on oyer, filed a demurrer to the declaration, setting out, as causes: 1st. A variance between the note described in the declaration and that exhibited on oyer, in that the latter purports to be “ for valuereceived,” whereas the former does not. 2d. That the second count in the declaration fails to show when the defendant was to pay the said supposed several sums of money, and the said supposed interest therein specified. 3d. That said declaration is in other respects informal and insufficient.

In this case, the only question seems to be, is the omission of the words, “ for value received,” in the declaration, which words are contained in the note, such an error as will justify a reversal.

It has been held by this court that an appellate court will not disturb or reverse a judgment authorized by law upon the whole record, for any irregularities or errors which do not affect the merits of the case.

In the case of Matlock vs. Purefoy, 18 Ark., 492, referred to both by appellant and appellee, it is held that in declaring upon a promissory note it is sufficient to describe the note according to its legal effect; and expressly declared that the words for value received,” though contained in the note, may be omitted in the declaration.

The correctness of this decision is questioned by appellant, and with various other authorities the case of Rossiter vs. Marsh, 4 Conn. Rep., page 199, is referred to and relied upon. In that case, which was decided many years ago in a distant state, it is as distinctly held, that the omission of said words in the declaration, when contained in the note, is fatal.

It appears to this court that the tendency of modern decisions is in harmony with the doctrine as held in the case of Matlock vs. Purefoy, and that there is no error in the proceedings and judgment below.

The judgment is affirmed.