author: TIarhisOX, J.

text:
    Simmons v. City of Camden.
    Cobporatiohs. — Under the general incorporation act, cities and towns have authority to lay out, open, grade and keej) in good repair the stveets of a city or town, and a suit will not lie at the instance of an individual for damages, resulting from injuries to private property, from the lawful exercise of this authority, by the incorporation, where there has been no negligence, want of care or skill in its exercise.

      Appeal from Ouachita Circuit Court.

    Hon. Gr. W. McGowen, Circuit Judge.

      Warren # Warren, for appellants.

      Garland $ Nash, for appellee.
   TIarhisOX, J.

William R. Simmons sued the mayor and aldermen of the city of Camden, to recover damages for an injury to his property, occasioned by the grading of Washington street, in said city. .

The complaint alleged that the plaintiff was the owner of a lot on said street, with two frame buildings thereon, and that the defendants had graded said street, and in doing so, had thrown up and raised the same so as to make an embankment in front of said lot, six or seven feet high, whereby all access to the buildings from the street was cut off and prevented, and the said premises greatly depreciated in value.

A demurrer to the complaint being sustained, the plaintiff’ appealed.

There can be no question as to the authority of the defendants to grade the street, or do the act from -which the injury to the plaintiff’s property resulted, for to lay out, open, grade and keep in good order and repair the streets, within the city, was one of the main objects for which corporate privileges and powers were conferred upon its inhabitants, as is clearly infer-able from the acts of incorporation, or its charter, and the several acts amendatory thereof, and such power is expressly given the mayor and aldermen by the general act for the incorporation and government of cities and towns, and there is no complaint that they exceeded their authority in any respect; for no negligence or want of care or skill is alleged and none can be presumed.

The question for our consideration then is : Is the plaintiff entitled to recover for an injury to his property resulting from an act done by the defendants, under lawful authority and in a proper manner?

The maxim that a man shall so use his own property as not to injure his neighbor, imposed upon him the duty, in such use, of exercising care and diligence to prevent or avoid harm or injury to another, but does not impair the enjoyment of his rights in it, for it is also, a maxim, that he who uses his own right, harms no one.

The application of this principle is seen in the following cases: In Radcliff’s Ex’rs v. Mayor and Aldermen of Brooklyn, 4 Comst. 195, it was held that where a municipal corporation, under rightful authority, without negligence or want of skill in the execution of the work, grades and levels a street, an action will not lie by an adjoining owner, whose lands are not actually taken, for consequential damages to his premises. Chief Justice Bronson, in delivering the opinion of the court in that case, said: “As no question has been made on that subject, we must assume that the defendants had acquired the title to the lands in the site of the street, in the form prescribed by law. In leveling and grading the street, they were at work in their own land, doing a lawful act for a lawful purpose. They did not touch the testator’s property; and the question is, whether the damage, which resulted to him in consequence of grading the street, must be regarded as damnum absque injuria. The maxim sic utere tuo ut alienum non Icedas, is not of universal application; for, as a general rule, a man who exercises proper care and skill, may do what he will with his own property.” * * * * * * * * “A man may do many things, under a lawful authority, or in his own land, which may result in an injury to the property of others, without being answerable for the consequences. Indeed, an act done under lawful authority, if done in a proper manner, can never subject the party to an action, whatever consequences may follow. Hor will a man be answerable for the consequences of enjoying his own property, in the way such property is usually enjoyed, unless an injury has resulted to another from the want of proper care or skill on his part.”

In Panton v. Holland, 17 John. 92, where the defendant, in the exercise of ordinary care and skill, in making an excavation for the purpose of laying the foundation of a house in his own land, dug so near the foundation of plaintiff’s house as to cause it to crack and settle, it was held he was not liable for the injury. In Lasala v. Holbrook, 4 Paige, 169, it was held that a person cannot he restrained from making a reasonable improvement on his own premises, upon the ground that it ■cannot he made without endangering an edifice erected on the adjacent premises, if the owner of the adjacent premises does not possess any special privileges protecting him from the consequences of such improvements, either by prescription or by grant from the person making the improvement, or from under whom he claims title.

In Thurston v. Hancock, 12, Mass. 220, the plaintiff had built his house in his own land, within two feet of the boundary line of his own land, and ten years after, the owner of the land adjoining, dug so deep into his own land as to so endanger the house, that the owner was compelled to take it down; it was held that the defendant was not liable for damage to the house, but that the plaintiff was entitled to recover for the damage arising from the falling of his natural soil into the pit so dug. In Creal v. City of Keokuk, 4 G. Greene, 47, it was held that the plaintiff was not entitled to recover for an injury to his store-house, in consequence of a change made by the city in a prudent and skillful manner, of the grade of the street on which it was situated, after he had built his storehouse.

And in Humes v. Mayer & Co., 1 Hump. 403, the mayor and aldermen of Knoxville were held not liable for an injury to the plaintiff’s property, caused by an excavation of the street made by them, with a view to its improvement, and with such care and skill as to do as little damage as possible.

These authorities conclusively show that the plaintiff’had no cause of action, and that the demurrer to his complaint was rightfully sustained.

Judgment affirmed.


source: Caselaw Access Project

author: G-eegu, J.

license: Public Domain

text:
    Bosley v. Shanner.

      Contracts — When void from threats or duress. — To render a contract void hecanse of threats or menaces, it is necessary that the threats and circumstances should he of a character to excite the reasonable apprehensions of a man or person of ordinary courage, and the promise, contract or statement, should he made under the influence of such threats or menace.

      Appeal from Woodruff Circuit Court.

    IIon. ¥m. Stoey, Circuit Judge.

      T. D. W. Yonley, for appellant.

      Watkins $ Hose, tor appellee.
   G-eegu, J.

The appellee brought assumpsit, in the Woodruff circuit court, against the appellant, for certain cotton, a hack and harness.

Appellant appeared and filed three pleas; upon which issues were formed, a trial held, and a verdict and judgment for the appellee. A motion for a new trial was made and overruled, and the case appealed to this court.

The evidence was amply sufficient to sustain a verdict lor the value of the cotton.

The appellant complains that the court below instructed the jury, that, “In order that a contract or statement shall be void, because of threats or menaces, it is necessary that the threats and circumstances should be of a character to excite the reasonable apprehensions of a man or person of ordinary courage, Mid the promise, contract or statement should be made under the influence of such threats or menace.”

This instruction was applicable, and by the authority appellant refers to: Burr v. Burnett, 18 Ark. 214, and cases there cited — it is substantially correct. The evidence in the court below authorized the various instructions, finding and judgment there had, and there appears but slight ground for an appeal to this court.

The judgment of the circuit court is affirmed.


author: McClure, 0. J. McCmjrb, C. J. McCluRe, C. J. McClure, O. J. McCluRE, O. J. G-RE&g, J.,

text:
    State v. Johnson.
    Supreme OouitT — Poicer to issue Writs of Mandamus and Quo Warranto.— Under the present Constitution, the Supremo Court, in the exercise of its original jurisdiction, has power to issue writs of mandamus and quo warranto.

    Schedule to Constitution — Construction of. — That clause of the schedule to the Constitution (sec. 10), requiring all officers to qualify “within fifteen days after they shall have been duly notified of their election or appointment,” is mandatory, and, for the purpose designed, has all the force and effect of a provision of the Constitution, and is to be construed by the same rules.
    The command,-and the use of the word “shall,” in the schedule, denotes command, that the officer shall qualify within fifteen days after having-been duly notified of his election, is nothing- more nor less than a grant to qualify within that time.
    Where the Constitution designates, in express and explicit terms, the precise time when a fundamental act shall be done, and is utterly silent as to the performance at any other time, it cannot be done at any other time.
    Trial by Jury — To wluit cases does not extend, etc. — The right of trial by jury, at common law, did not extend to .summary proceedings, nor to civil proceedings against a public officer, and the proceding by quo war-ranto, is nothing more nor less than a civil proceeding against a public officer.
    The Constitution having given this court jurisdiction to issue the writs, with power to hear and determine the same, the court has the power to determine the facts arising on the writs in which it exorcises jurisdiction.

      Petition for Quo Warranto.

      Montgomery, Attorney General, Yonley and E. W. Gantt, for the State.

      Watkins $ Rose, Rice Benjamin, Gallagher, Newton <f-Hempstead, and English, Gantt §• English, for respondent.
   McClure, 0. J.

On the 14th of December, 1870, at the suggestion of the attorney general, a rule to show cause was awarded against the ¡respondent, why a writ of quo warranto should not be issued against him.

On the 23d of January, a response was filed to the rule, and a demurrer to the suggestion or information of the attorney general. The first cause of demurrer is, that this court has no jurisdiction; the second is, that the information or suggestion ¡shows no sufficient cause of action.

The question of jurisdiction is substantially settled in ■the case of Price & Barton v. Page, treasurer, 25 Ark., 557. While it is conceded that, in the case referred to, the application was for a mandamus, the determination of the power to issue that writ, by virtue of the original jurisdiction of this court, necessarily disposed of the jurisdiction of the court in •cases of quo warranto. And, in exercising the jurisdiction, we do not stand alone: Judges Ringo, Dickinson, Lacey, Johnson, Oldham, Cross, Paschal, Sebastian, Conway and Walker, men whose names are familiar to the legal fraternity of the State, and whose erudition and legal lore are second to none who have succeded them, held, for a period of more than fifteen years, after the adoption of the Constitution of 1836, that this •court had orginal jurisdiction in mandamus and quo warranto.

From 1851 to 1864, this court held that it had no original jurisdiction in mandamus and quo warranto. In 1864, Judges Pike, English and Compton reversed the opinion of 1851, and followed in the wake of Judges Ringo, Dickinson, Johnson, Oldham, CROSS, Paschal, Sebastian, Conway and WalkeR. It may be urged that the opinion urged by Judges Pike, English and Compton in 1864, is not entitled to much, weight, they being the Judges of the Supreme Court at a time when Arkansas was supposed to belong to the Confederate States.

To this it may be replied, that Judges Pike, English and Compton were construing the provisions of the Constitution of 1861, which is identical with that of 1836, construed by Judge Scott; that they were acting under the solemnity of an oath that bound their consciences and controled their legal judgments, to the same extent, as was the conscience and judgment of Judge Scott bound. As lawyers, and men of legal ability, they have few equals and no superiors; and whether the opinion and decision in The State v. Samuel W. Williams, has the force of a judgment now, it is, at least, entitled to much respect and weight, emanating, as it does, from such a high source.

In the case of The State v. Williams, we find the following language, on the subject of jurisdiction of this court in quo warranto: “We, therefore, declare it to be now the opinion of this court, that, in cases involving the civil rights of the State as sovereign, affecting vitally its character and the proper administration of the government, in which the public has a direct and immediate interest, and when the right to a public office, franchise, liberty or privilege is the subject matter of the controversy, this court is, by the Constitution, invested with the original jurisdiction, to be exercised by means of a writ of mandamus or quo wan arito, according as the State may, by her attorney general, ask for one or the other, in order to cause the admission of the proper person to, or to oust the party illegally holding such public office, franchise, liberty or privilege, with power, not only to issue the writ, but to hear and determine the same, being pro hoc vice, both a court of first instance and in the last resort. But we will not extend the remedy beyond the limits prescribed bj the old writ, nor permit private persons to interfere and file relations in this court.”

Feeling that we are fully sustained in exercising jurisdiction in mandamus and quo warranto, by Judges familiar with the law, its practice and its precedents, we will now take up the-second ground of demurrer. The question raised by the second ground is: “Is that clause of the schedule to the Constitution of 1868, directory or mandatory, as to qualifying within fifteen days after receiving notice of election?”

It is urged by counsel for respondent, that the clause in the schedule is directory and not mandatory. It is also urged that the schedule is hut an ordinance of the convention, and that the rule of construction, applicable to statutes, should apply., rather than that applicable to Constitutions, In the case of Ridley v. Sherbrook, (3 Cold. 569,) the Supreme Court of Tennessee held, that, “the provisions of the schedule, for the purpose for which they were designed, had all the force of Constitutional provisions.'’ This is the only decision upon the subject we have been able to find, in the limited search we have made, and having no disposition to question the correctness of the decision of that court, we will proceed to discuss whether the provision was mandatory or directory.

It is urged by counsel for the respondent, that, “statutes directing the mode of proceeding by public officers are directory, and are not regarded as essential tó the validity of the proceedings themselves, unless it be so declared in the statute.” While, to some extent, this is a general rule, yet it by no means follows that it is an universal rule. In the case of the People v. Cook, (14 Barb. 290, 8 N. Y. 67,) the rule contended for by respondent was laid down, and it is insisted, is applicable to this case. We are unable to comprehend the analogy, and it does not exist; for there is a vast difference between a statute that directs how an officer shall proceed after he is an officer, and a statute that directs how he shall proceed in order to become an officer.

Treating the schedule to the Constitution in the light of a mere ordinance of the convention, and entitled to no more' consideration than an act of the Legislature, let us see if it is. directory or mandatory. It declares that “All officers shall quality and enter upon the discharge of the duties of their ■offices, within fifteen days after they have been duly notified of their election or appointment.” (Sec. 10, Sched.) One of the first rules of construction is, to ascertain the intention of the law-making power, and carry that intention into effect, if it do not contravene the fundamental law of the land. It is not insisted, that the determination, that the clause of the schedule above quoted, as either a mandatory or directory provision, would contravene any provision of the Constitution, and all that now remains for us to determine is, whether it is mandatory or directory. Another well established rule of construction is, “where there is nothing doubtful — nothing ambiguous— no words made use of which operate to defeat the manifest intention of the Legislature, there is nothing left for construction.” (2 Ohio, 65; 9 Ohio, 558.) Now let us apply these plain simple rules to the language before us. “All officers shall qualify and enter upon the discharge of their offices, within fifteen days after they have been duly notified of their election or appointment.” Is there any thing doubtful about the meaning of this language? Is there any thing ambiguous about it? Is it not plain and easy of comprehension? Is there any reason why any new term should be interpolated into the clause quoted, in order to save any natural or acquired right to the ■citizen? There is none that we know of, and in the absence of a necessity, we are unable to see why it should be done. If the Lieutenant Governor failed to qualify within the fifteen days, or wholly failed to qualify, the existence or permanency of the State goveniment wmuld not have been jeopardized, nor would any public or private interest have suffered. It is true that the Constitution makes it his duty to preside in the deliberations of the Senate, but his failure to preside would not work a suspension of legislation, for the Constitution provides for the election of a President p/o tempore. If the schedule declared that all persons elected under the provisions thereof, should qualify before entering upon the discharge of the duties of their respective offices, and fixed no specific time within which the qualification should take place, such a provision' would have been directory, but such is not the character of the schedule. The command, and the use of the word “shall,” denotes command, that the officer shall qualify within fifteen days after having been duly notified of his election, is nothing more nor less than a grant to qualify within that time.

Another well settled rule of construction is, that “no word ever should be rejected, if the statute will admit of a rational and consistent construction, without rejecting it.” 3 Ohio, 193; 8 Ohio State, 564. How, why should the words, “within fifteen days after they have been duly notified of their election or appointment,” be stricken out of the schedule? It is reasonable to presume that these words were placed in the schedule for some purpose, if so, what right have we to reject them, or treat them as surplusage?

What reason or object could the Constitutional Convention have had by the use of the words, “within fifteen days after they have been duly notified of their election or appointment,” if it ivas not to place a limitation on the time in which an officer was to qualify? The mere insertion of any number of days, within which an officer was to qualify, evidences an intention to limit the time in which the person elected or appointed,, should qualify.

But counsel for respondent urge that there is no declaration that the person elected shall not qualify after the fifteen days,. and that because there is not, that qualification at any subsequent time may be pleaded in bar against the State, in an action or proceeding commenced to recover the office from one who has not complied with the terms of the grant. If this should be-the rule of construction applied to statutes, it would become necessary for the Legislature, in every instance, in a statute to' declare, if the thing to be done was not done at the time fixed by law, that it should be void. This rule of construction would create interminiable confusion with a large majority of ■our present statutes, and work irreparable mischief if it once attained a foothold.

In Maine, (6 Shepley, 548,) the question was presented to the-Supremo Court, whether the Legislature could make an apportionment, at a time other than that named iii the Constitution, and the court laid down the law to he, that “where the Constitution designates in express and explicit terms, the precise time when a fundamental act shall he done, and is utterly silent as to the performance at any other time, it cannot he done at any other time.” In the case now before us the schedule declares that the qualification shall take place within fifteen days after notice. The Tennessee courts say, that the schedule, for the purposes, is as binding as any other portion of the Constitution. The schedule is silent as to qualification, at any other time after the fifteen days, and in such case, the Supreme Court of Maine say, that where the Constitution is silent as to-the performance at any other time, it cannot be done at any other time. Believing this to he the better rule of construction, as applicable to a case of this kind, we are clearly of opinion that the demurrer should be overruled.

On the 17th of February, 1871, the respondent filed certain affidavits in support of the response to the rule to show cause. The attorney general then informed the court, that he desired to, and could successfully, controvert the facts set forth in the affidavits, and in order that ho might have that opportunity, it was ordered that the writ of quo warranto issue, as the only question about which there is any controversy is, whether the Lieutenant-Governor qualified within fifteen days after having been duly notified of his election.

To the writ of quo warranto, a response was filed, setting up really two pleas:

First, That the Congress of the United States, by an act, passed March 2, 1867, entitled “An act to provide for the more efficient govei’nment of the rebel States,” had declared that, “no legal State government existed in the State of Arkansas and that under the provisions of said act, and acts supplemental thereto, it was the object and intent of said acts to enable the people of Arkansas to form a State government,. republican in form, by the framing and adoption of a Constitution, in conformity with the Constitution of the United States, and which should provide that the elective franchise shall be enjoyed by the persons mentioned in said act, and the adoption of article fourteen, by the Legislature of said State, and when said article shall have become a part of the Constitution of the United States, said State shall be declared entitled to representation in Congress, and that then and thereafter, the preceding sections of said act shall be inoperative in said State. The plea insists, if such an expression may be allowed in this connection, that the present Constitution did not go into effect until the 22d of June, 1868, and that he qualified more than fifteen days before that ■ date, as Lieutenant-Governor of the State of Arkansas.

[The second plea sets up that ho qualified as Lieutenant-Governor within fifteen days after he was duly notified of his election. To the first plea, the attorney general filed a demurrer, and a replication as to the second.]

[The demurrer to the first plea was sustained. On the 20th of February, the respondent filed a motion for a jury to try the issue of fact presented by the second plea, the replication and similiter.]

McCmjrb, C. J.

Here we have a question presented for our consideration, that is not free from difficulty. On the one hand, to refuse a jury to try the issue of fact presented, is at variance with the ideas usually announced from the political rostrum, or spoken of in unguarded terms by the sycophant and demagogue, who caters and bonds to public opinion, “that thrift may follow fawning.” On the other, we are constrained in our action by the solemnity of an oath, and the limits of the Constitution. Our Constitution declares, “The right of trial by jury shall remain inviolate, and shall extend to all cases at law, without regard to the amount in controversy.” Counsel for the respondent urge, that this provision of the Bill of Eights entitles him to a jury to pass upon the question of fact.

It has been truly said that “a Constitution is not the beginning of government,” and that it is adopted with a knowledge that it is, and was made in harmony and consonance with the •condition of things existing at the time of its adoption.

In the Constitution of 1836,- the 6th section of the Bill of Eights, declares that, “the right of trial by jury should remain inviolate.” It will be observed that the Constitution of 1868, in addition to declaring “the right of trial by jury shall remain inviolate,” adds the words, “and shall extend to all cases at law, without regard to the amount in controversy.” Have the words added, any meaning, or are they mere senseless things ? "Why aré they added ? Shall these words be treated as a redundant expression, in order to bring this proceeding within the rule contended for by the respondent ?

In the case of the State v. Ashley, (1 Ark. 284), the point was made, in argument, by Judge Watkins, who was attorney in that case, that the court could not exercise original jurisdiction in quo warranto, because, in the determination of the proceeding, matters of fact usually, and almost necessarily arise; and that in the exercise of the power to hear and determine the same, inasmuch as this court had not been provided with a j ury, it being a well settled principle of the law, that whether the jurisdiction was original or appellate, the jurisdiction could not be exercised without the intervention of an act of the Legislature, would controvene that provision of the Bill of Eights, which asserts “the right of trial by jury shall remain inviolate.”

In response to this position Mr. Pike said, it “hardly merits notice.” He further states that the right of trial by jury was the right of trial, “existing at the adoption of the Constitution,” which was, that “every man shall be tried by his peers of the vicinage,” and that no free man shall be arrested or imprisoned, or deprived of Iris free hold, except by the regular-judgment of his peers, or the law of the land.”

Chief Justice Ringo, after hearing these arguments, in a very able and elaborate opinion, held that the court hadywm-diction, hut he no where states or gives any expression upon the argument presented, and it is fairly inferable that the exercise of jurisdiction, in his opinion, did not controvene the right of trial by jury.

It will be admitted, by those of the profession, who are familiar with the practice of the law, that the proceedings in which a jury was not required at common law, that the clause of the Constitution, declaring the right of trial by jury, shall remain inviolate, does not give it.

When the Constitution was framed, adopted and ratified by the framers and the people, it was well known that this court was not provided with a jury, or the means to procure it, and yet, with this knowledge before them, they gave this court jurisdiction in mandamus and quo warranto, with power to hear and determine the same. That the people, themselves, had not only the right, but power to provide that this court should determine questions of fact, arising on the writs, in which it exercises jurisdiction, we presume will not be denied.

"Whether the right of trial by jury ever existed as a matter of right in quo warranto, is not a matter easily determined, by direct precedent. The respondent claims that such is the uniform practice, not only in this country, but in England, and in support of that position, quite a number of authorities have been submitted to our consideration. On a careful examination of the authorities cited, we have found them to apply to informations in the nature of a quo xoarranto, the former being a criminal prosecution, and the latter a proceeding upon a writ, in the nature of a writ of right, which partakes more of what is now known as a summary proceeding, than a “case at law.”

The right of trial by jury, at common law, never existed in equitable proceedings, in admiralty or summary proceedings? or proceedings against officers of a civil nature, nor did it exist in cases where private property was taken for public use, and yet in all these proceedings, questions of fact,' involving the tenure to property in untold amounts, are adjudicated upon by the courts, without the intervention of a jury.

So far as we can now trace the right of trial by jury, at common law, it did not extend to equitable actions, admiralty or summary proceedings, nor in cases where private property was taken for public use, nor in procedings in rem, nor in civil proceedings against public officers, and this proceeding is nothing more or less than a civil proceeding against a public officer. By Magna Charta, it is deelared that “no freeman shall be arrested or imprisoned, or deprived of his freehold, except by the regular judgment of his peers, or the law of the-land.”

In the seventeenth year of the reign of King John, at Runnymede, these concessions were made by the crown, and from that time forward, to some extent, the rights of Englishmen have been determined by the concession then .made. King John’s construction of the concession was, that it did not protect the “goods and chattels;” and, as an evidence of this, we have but to refer the unread to history of the time, and it will be found that armed forces were sent against the secret enemies of the king, and they were despoiled of their goods, without observing any form of law. Langton and his associates, and many others, were thrown into prison and despoiled of their goods, without the intervention of a jury, notwithstanding Magna Charta. Ling. His. Ehng., vol. 2, 225 n. So far as our research has extended, the right of trial by jury, at common law, only extended to criminal prosecutions, and in actions where a freehold or goods and chattels were in dispute.

The term, “goods and chattels,” includes personal property, ehoses in action, and chattels real. The right to an office is neither personal property, or a chose in action, or chattels real, in the sense used at law. In information in the nature of a quo warranto, it is expressly provided by an act of parliament, (3 Geo., 2 ch., 25), that a jury shall be struck before a proper officer, on the demand of the king or the respondent. This statute was passed for the special purpose and to the end that his majesty’s courts, at Westminster, might be provided with juries to try questions of fact. If this right existed before this time, it was certainly a work of supererogation on the part of parliament to enact the law, and the inference to be drawn from this fact is, that, prior to the date of the statute, the issues of fact were tried by the court, even in cases of informations in the nature of quo warranto, which, at best, is hut little more than a summary proceeding to ascertain the right to an office.

As yet, this court is the only tribunal in the State having .jurisdiction in quo warranto. Under the Constitution of 1836, the circuit courts were courts of original jurisdiction; they are not so now; the circuit courts are mere creatures of the Legislature, and without any constitutional jurisdiction. It is clear that the eighteenth section of the Civil Code, regulating the jurisdiction of the circuit courts, does not confer upon them the power to hear and determine the high prerogative writs used for the protection of the sovereignty of the State. It is not intended to intimate that the Legislature has no power to confer the jurisdiction, but that it has not conferred it.

We have already stated that, when the members of the convention framed and adopted the present Constitution, they were well aware that this court was not to have a jury, and that the jurisdiction in these writs was conferred with a full knowledge of this fact. The proceeding at law is not a criminal action, and yet, from the tearful and pathetic argument of the counsel, one would be led to suppose that the respondent was being tried for murder or treason, and the argument is based upon the false assumption that his client is to be hanged, without the intervention of a jury. The object of this proceeding is to require the respondent to come into court, and show the title to the office, the functions of which he has been exercising. If he has title, no harm can befall him; if he has no title, he is simply ousted from the office, whose functions he has usurped. No penalty, imprisonment or fine is imposed, no matter what way the judgment goes.

It has been frequently held, that right of trial by jury, at common law, never extended to cases of defaulting or delinquent officers of the government. 2 Stew., 131; 6 Man., 641; Hardin’s Rep., 5; 17 Ala., 516, and the States in. which these holdings have been made, have denied a jury when demanded, on the sole ground that, in actions against public officers, the right of trial by jury did not exist at common law, if the actions were not of a criminal nature. Believing this to be the correct distinction, we are unable to see wherein the denial of a jury would contravene the right of trial by jury, as it existed at common law, or as it existed at the adoption of the Constitution. If we were to consult our own conscience, or desired to shirk the duty imposed onus by the Constitution, we should at once order a jury, to dispose of this question; but, inasmuch as neither the Constitution nor the Legislature has provided this court with a jury, or the means of obtaining one; and, inasmuch as there would be no court in the State, with jurisdiction, to protect the officers of the State from usurpation, if this court were to refuse to exercise the jurisdiction conferred, we feel it to be our duty, under all the circumstances, to overrule the motion for a jury.

[On the 20th of Eebruary, 1871, a motion for a jury was filed, under XIY. amendment to the Constitution of the United States.]

McCluRe, C. J.

"We see nothing in this motion that was not really disposed of in the first demand for a jury. We have carefully examined the opinion of Judge Bb^dley, submitted by counsel for respondent, and can come to no other conclusion than that he made a hasty and ill-advised obiter dictum, in the ease referred to; and, as an evidence of this fact, we direct attention of eoun-sel to the fact that he says the civil rights bill axwTthe XIV. amendment have no relation to each other.

On the very next day he comes into court and says that he is convinced that he was in error in that respect, and recants his position of the day previous. This, taken in connection with the fact that the case turned on a question of jurisdiction, and that the remarks made were not pertinent to the disposition of the case, entitles the argument to no more weight than that of any other lawyer of equal ability. The fourteenth amendment originated in Congress, and many of the same men who aided in prpposing the amendment to the States, were in Congress when the enforcement act was passed. Under such circumstances it will not be unreasonable to presume that congressional construction is of as much weight on that subject as the opinion of Judge Bradley. Congress, under the authority given that body, to enforce the amendments, undertakes to define the rights sought to be preserved and protected by the fourteenth amendment, and by the sixteenth section of said act it is declared, “That all persons within the jurisdiction of the United States, shall have the same right in every State and tei’ritory of the United States, to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens, .and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and none other; any law, statute, ordinance, regulation or custom, to the contrary notwithstanding. Xo tax or charge shall be imposed or enforced by any State upon any person immigrating thereto from a foreign country, which is not equally imposed and enforced upon any person immigrating to such State from any other foreign country; and any law of any State, in conflict with this provision, is hereby declared null and void.” There seems to be no intention to extend the right of trial by jury to cases where it did not exist before, and we do not think the fourteenth amendment was adopted for any such purpose. The motion is overruled.

[On the 22d of February, 1871, a motion was made to ..dismiss for want of jurisdiction, on the ground that this court had no power or authority to impanel a jury.]

McClure, O. J.

It has already been very clearly intimated that this court would hear the facts in this proceeding and dispose of the case on its merits. If the case should be dismissed at this stage, the jurisdiction in quo warranto would cease when an issue of fact was presented for trial, and the result of such a holding would he that it would have jurisdiction in eases where no question of fact was presented, and that if a question of fact should be presented, this court would be ousted of jurisdiction-The jurisdiction of this court is not to be measured, nor does it hang upon so feeble a tenure.

[On the 25th of February, 1871, the court, after hearing the •evidence, delivered the following opinion.]

McCluRE, O. J.

The court are unanimously of opinion that the evidence presented in this case shows that the respondent qualified and ■entered upon the discharge of his duties within the time prescribed in the schedule. The fact of election of respondent being conceded, the only thing at issue in the case is established. It is therefore considered that the respondent have and use and exercise the rights, privileges and franchises of the office of Lieutenant Governor of the State of Arkansas, and that he be allowed his costs in this behalf expended.

G-RE&g, J.,

dissenting, says:

The relation of the attorney general, after announcing that the respondent had usurped and exercised the office of Lieutenant Governor without warrant or sufficient authority, admits his election to that office, but alleges that he failed to take his oath of office and enter upon the duties thereof, within fifteen days after he was notified of his said election.

Second. That he refused to qualify according to law, and file a copy of his oath in the office of the secretary of State, whereby he had forfeited any right he may have had to that office.

It has been intimated, in argument, that a quo warranto is a favored prosecution; but upon the demurrer to this writ, it has not been contended that the attorney general, in his relation, is not bound to state facts which, if true, by law, the respondent is not entitled to hold the office; in other words, he must state facts which show that the State is entitled to a judgment of ouster.

In this, as in other suits at law, the pleader should state facts, matters issuable, and not conclusions or inferences of law; and if the facts charged constitute no cause of action against the accused, he may suggest that to the court, and be relieved from making any response. This is the ground assumed by the respondent here, and denied by the relator.

The latter clause of the tenth article of the schedule to the Constitution of 1868, declares that, “all officers shall qualify and enter upon the discharge of the duties of their offices within fifteen (15) days after they have been duly notified of their election or appointment.”

The principal questions urged upon the attention of the court are:

First. The relator urges that this clause in the schedule is mandatory, and must be complied with; and if respondent failed to comply .therewith he forfeited all rights he had acquired to the office, and could not afterwards assume the franchises, powers and privileges of that office. And the respondent urges that this clause of the schedule is directory, and if the party does not take the oath of office within the time stated he may thereafter take such oath and enter upon the duties of the office; and that if a failure to take such ©ath within the time is a violation of said clause, there is no penalty affixed for such neglect or violation, and it is not within the scope of judicial authority to create a penalty or declare what that penalty shall he.

Although this precise ease is new in this court, there have been many questions strikingly analogous in principle to the ones here presented.

Mr. Sedgewick, in his work on statutory and constitutional law, 368, says : “When statutes direct certain proceedings to' he done in a certain way, or at a certain time, and a strict compliance with these provisions of time and form does not appear essential to the judicial mind, the proceedings are held valid though the command of the statute is disregarded or disobeyed.” See, to the same points, Cooley’s Const. Lim., 74, et seq.

Whether or not the general principle here enunciated, is. applicable to the case before the court, depends upon the question as to whether or not the time for taking the official oath,, as stated in this schedule, is of the essence of the thing to be done. To arrive at that we should look to the purport, meaning and intent of this act, or schedule. A Constitution had been framed, the fundamental principles of an original law had been agreed upon, and now it was desired to have the assent of the people to this fundamental law; and the delegates; then undertook to direct in what manner the people should; express their assent or dissent to this law, and in what manner they should choose officers to fill the various positions provided for in such organic law, and at what time and in what manner these officers should enter upon the discharge of the duties-of their respective offices. It directs how the elections shall be held; provides for commissioners and judges of elections;, directs how elections may he contested, and the result declared;, and, in short, prescribes the manner of forming a government, in accord with the organic law thus agreed upon. This ordinance was to declare the manner of getting up the machinery of the new government. This schedule was no part .of the fundamental law of that government, as was insisted in argument. Instead of being a part of those “fundamental maxims and unvarying fixed rules by which all departments of the ■State government should at all times shape their course,” it was a most fleeting §,nd temporary enactment; instead of being declared a principle to regulate law-makers as well as individuals, it fixed its own hasty dissolution. That fundamental law, like a will of the schedule, could not go into full-force and effect until all the functions of the schedule had been ■performed. The termination of its existence was the recognized beginning of the Constitution’s authority and power ■over the people, and the departments of the State; therefore, instead of this being of the ground work, or fundamental principles of government, it'did not even claim the stability of an ordinary statute; it pretended only a temporary existence, for a temporary purpose, and in all of its offices it was most peculiarly advisory- — directing the manner of forming an organization which was to carry out the laws enacted. And the taking the oath of office was a preliminary step to the object intended.

If the person elected, failed or refused to qualify as directed, the proper authorities might have taken measures to declare •the office vacant; but if no such steps were taken, and no va•cancy declared until he came forward and qualified, and entered upon the duties of the office, no forfeiture could be de-clared ; and all penalties for non-compliance with statute law, ■should be fixed by law, and a court cannot say forfeiture of the office shall be the penalty, when the law-making' department have not so declared.

In the case of Glidden v. Towle, 11 Foster, 166-7, the Supreme Court of Hew Hampshire, held, upon a statute requiring town officers to appear and take an oath within six days after their election, that, “These are general provisions in regard to town officers, but they apply to fence viewers in the same manner as though specifically enacted in regard to them. Were it made to appear that the fence viewer, in question, had been duly notified of his election, as required by statute, and had neglected to take the oath of office, as therein stated, the selectmen might, perhaps, have treated his conduct as a refusal to accept the office, and appointed another in his stead. But nothing of the kind appears, and, in the absence of any time being fixed in which a vacancy is declared to exist, or of any •one being appointed in his stead, we see no objection to his taking the oath at the time lie did, and of his entering upon the duties of his office.” (He was elected in March, and did not take the oath until the 26th of July following.)

In case where a sheriff, by statute, was required to file bond within twenty days after notice of his election, the Supreme Court of New York, held, “that the statute may be considered in that respect, directory to the sheriff merely, and not as im*-posing an absolute limitation upon him.” 12 Wend. 483.

In the case of the Mohawk and II udson Railroad Company, the Supreme Court of New York, said: “The statute requiring inspectors of corporate elections to take an oath, is simply directory in its terms, and without any nullifying clause, on account of omission,” etc. 19 Wend. 143. Nor is there any nullifying clause in the schedule under consideration.

The court of appeals, in New Jersey, in the case of Kearney v. Andrews, 2 Stockton’s Ch. 24, under a staute that required the -officers of a town to take an oath of office within ten days after an election, say “it was directory, only, and that the alderman and member duly elected did not forfeit their offices by their neglect of being sworn in within ten days after their election. The counsel, in my judgment, are right in this construction; the neglect to take the oath of office did not, ipso facto, vacate the office.

“ The officers elected would have been legally qualified to -discharge their duties of office had they been sworn in after the expiration of ten days, but an officer * * * may resign his office, or he may refuse to act; and, in either case, his «office may be declared vacant, and his place supplied. If, therefore, he is required to take an oath of office, and he declines to do it within the time prescribed by law, while such neglect does not, ipso facto, vacate his office, the body, of which he is a member, may declare the office¡vacant, upon the ground of his refusal or neglect to assume the responsibilities in the mode, directed by law.” This lucjjd statement of the law, by that, learned court, needs no comment.

In the case of Heath and others, the Supreme Court of Hew York say: “Nothing is better settled, as a general rule, than that, where a statute requires an act to be done by an officer within a certain time, for a public purpose, the statute shall be taken to be merely directory; and though he neglect his duty, by allowing the time to go by, if be afterwards perform, the public shall not suffer by the delay.” 3 Hill, 47; see, also, 6, Wend., 486.

In the case before the court, it certainly will not bo insisted that the taking of this oath, by the Lieutenant Governor, was an act to be done for a public purpose; and this very learned court say, a neglect of duty in letting the time go by, if he afterwards perform, the public shall not suffer by the delay. And no vacancy is alleged to have occurred, nor injury done, in this instance.

We are clearly of the opinion that qualification and entering upon duty by the Lieutenant Governor, after the expiration of the fifteen days, would entitle him to the office. The schedule, in its whole scope and spirit, is a directory act, and no negative words are used prohibiting the taking of the oath at any time after the fifteen days, and no penalty is affixed for failing to take it within that time.

The taking of the oath was collateral and preliminary to the main object of filling and exercising the functions of the office,, and not the essence .of holding or doing the duties thereof.

For the same reasons that this demurrer should have been held good, we are of opinion the demurrer to the respondent’s second plea should have been overruled.

We also disagree with a majority of the court upon the motion filed praying for a trial, of the issue of fact herein joined, by a jury.

We regard the right of trial by jury, in actions at law, as one of those fundamental principles of liberty that may be claimed by any suitor, when his right of property, liberty or character is put in issue before a court of law.

Our Bill of Rights, section 61, declares that “the right of trial by jury shall remain inviolate, and shall extend to all cases at law, without regard to the amount in controversy.”

It has been assumed, in argument, that this is a peculiar action, and that, while this court is, by the Constitution, clothed with power to issue this writ, and to hear and determine the same, there is no authority given or mode prescribed by which a jury can he brought into court to try the issue of fact, and that it necessarily follows that the court must determine all questions of both law and fact. This by no means follows. If it be true that this court has jurisdiction to hear and determine this cause, then the ordinary legal means, necessary to ascertain the facts, follow as an incident to such power. See State v. Morrill, 16 Ark., 384; Fletcher v. Oliver, 25 Ark., 298.

If, to say no statute has directed how we shall procure a jury, is sufficient to deprive the respondent of a trial by jury, is it not equally forcible to say there is no statute directing in what form process of summons shall be issued, to whom directed, by whom, how and at what time it shall be served, when and in what manner returned? and, therefore, the court cannot take jurisdiction_of the respondent and decide his case. Yet, by an appeal to the inherent powers of the court, and its just discretion, we readily formed a writ, quickly decided the sheriff should execute it, and as readily determined how it should be returned, and that, thereby, we had jurisdiction of the respondent and his case.

If this discretion was proper, why cannot the same inherent powers and judicious discretion direct a jury returned to the bar to decide the facts in the cause upon which the court would determine the rights of the parties? If the latter discretion and power cannot be exercised, the right to determine the case should be held in abeyance and await legislative action. See 38 Mo. (7 Wright) 539.

But we are of opinion that where the fundamental law authorizes and empowers a superior court to hear and determine a cause, the grant carries with it the incidents necessary to • carryout that power, and that the usual modes of trial, as-understood and regulated by the common law, may be adopted to ascertain the necessary facts in the case; 1 Tenn. 363; and that while the court responds to issues of law, a jury should respond to issues of fact; and if no mode of trial has been prescribed, the common law is in force and should be pursued.

This is said to be unlike an information in the nature of a quo warranto, wherein a party may demand a jury trial.

We are aware that anciently, under the common law, there were proceedings in the nature of a quo warranto, so-called,. prosecuted by the crown officer, upon which the accused, if convicted, was subjected to puishment as well as ouster from office. These were criminal informations or prosecutions, and differed from the, suit by quo warranto, which had for its leading object to determine the respondent’s right to the emoluments and franchises of an • office. But the forms and proceedings by quo warranto were so cumbersome and fraught with such disadvantages that it was abandoned by the English courts as far back as the date of Queen Anne; and an information in the nature of quo warranto, adopted for the very purpose of the ancient writ — the trial of the right to an office — and most of the American States pursue, by statute, a similar remedy to try the right of a claimant to an office.

Hence, in looking over the precedents of trials, they are generally upon such informations in the nature of quo warranto, but are, in substance, the same as quo warranto, each being for the distinct purpose of trying the right to an office; and we must look to the substance of the proceedings, and not to the name merely. In informations in the nature of quo warranto, as far back as Charles II, and William III., we find the accused had a trial by jury. King v. Mayor of London, 1 Shower, 254; King v. Carpenter, 2 Shower, 47; King v. Bridge, 1 William Blackstone, 45.

In the case of the King v. Francis, as far back as 1788, an objection was made to granting a new trial on an information in the nature of a quo warranto. “The court granted a new trial, saying that of late years a quo warranto information had been considered merely in the nature of a civil proceeding, and that there were several instances since the case in Streye, in which a new trial had been granted.” 2 Term, 484.

These cases show that, in the King’s Bench of England, these proceedings were considered civil actions, over one hundred years ago, and they were there tried by jury. And Mr. Selwin, in his Nisi Prius, vol. 2, 1180, says: “In a quo warranto to try defendant’s right to be bailiff of Scarborough, in setting out his right, he showed his election,” etc., etc., “and it being objected on the trial that this record ought not to be read against the defendant, and the judge having allowed it to be read, and left the whole evidence on both sides to the-jury, to consider whether these persons were bailiffs,” etc.

This shows, then, a jury trial, not on an information in the nature of quo warranto, but upon a writ of quo warranto. So, if there was a real difference, it is not shown in the mode o£ trial.

In Pennsylvania an information in the nature of a quo war-ranto, to test the right of an accused to hold an office, is triable by a jury. Com. v. Woelper, et al. 3 Serg. & R. 28.

In the case of the Commonwealth v. Del. and H. Canal Company, upon quo warranto, the court, in speaking of their statute authorizing special proceedings in that case by quo warranto, etc., say: “It is matter of no importance to the parties whether this authority is exercised in the common law or in the equity form, provided the right of trial by jury is not interfered with, as it cannot be in this ease.” 43 Pa. sec. 300.

Here this able court recognized the right of trial by jury in quo warranto, as a common law right, saying that the State might proceed in the equitable form under their statute, provided the right of trial by jury should not be interfered with, clearly indicating that they recognized no power in the Legislature to deprive the respondent of a jury trial; and how much more should we regard this right when guaranteed by our Constitution and laws.

In the case of the Commonwealth, ex rel. Jackson v. Smith, 45 Pa. sec. 59, the Supreme Court say: “This was a proceeding founded on petition of Isaac Jackson, et aZ.,-against Smith etal., praying that the process of law be awarded, etc.; that “defendants show by what authority they claim to have, use and exercise the liberties, duties and privileges of said office. On this petition a writ of quo warranto issued as prayed for.” The defendants, by plea, denied the election of the relators, and claimed that they were duly elected; to which the relators replied that the defendants were not duly elected, and thereupon issue was joined; the case was tried before LowRIE, J., and resulted in a verdict for relators, etc.

In the case of the Attorney General, rel., v. Lindsey, 4 George (Miss.) 508, the court say, that, a quo warranto and an information in the nature of a quo warranto are the same. Under the modern practice both are but suits at law, to determine a right to office. See, also, 38 Mo. 539.

In Indiana, in the case of the Bank of Vincennes v. The State, in a suit of an information in the nature of quo warranto, various issues were made up, and they were submitted to a jury for a trial. This was no proceeding to have the bank convicted, fined or imprisoned, but a civil suit to determine whether or not she, as a corporation, could exercise certain privileges claimed by her, and that learned court treated the verdict as it would in other cases at law; 1 Blackf., 269; and in the case in 38 Mo., referred to, the court refused to allow the case heard before them, because no provision had been made by law fora jury trial. These'cases show how other courts proceeded to determine a right to the franchises of an ■office; and in cases of this character, where an issue of fact was to be determined by the testimony of witnesses, we have not Been able to find any case in which a court, since the beginning of the days of English liberty, upon direct application, refused a litigant the right of trial by jury.

Yet we rest our conclusions not so much upon these rulings, as upon the fundamental maxims of free institutions and popular governments; upon principles recognized as the foundation of civil liberty, and, beyond memory, ingrafted upon the common law of England, and made a part of the frame-work of the original law of the American States, and that of the Union of those States. That venerable author, Sir William Blackstone, in speaking of the value of the trial by jury, says: “In Magna Oharta it is more than once insisted on as the principal bulwark of our liberties.” Vol. 2, 350. Further on he says : “Upon these accounts the trial by jury ever has been, and I trust ever will be, looked upon as the glory of the English law, and it has so great an advantage over others in regulating civil property, how much must that advantage be heightened when it is applied to criminal cases? But this we must refer to the ensuing book of these Commentaries, only observing, for the present, that it is the most transcendent- privilege which any subject can enjoy or wish for; that he cannot be affected, either in his property, his liberty or his person, but by the unanimous consent of twelve of his neighbors and equals,” * * * “and therefore, a celebrated French writer, who concludes, that because Rome, Sparta and Carthage have lost their liberties, therefore, those of England, in time, must perish, should have recollected that Rome, Sparta and Carthage, at the time when their liberties were lost, were strangers to the trial by jury. * * * It is, therefore, upon the whole, a duty which every man owes to his country, his friends $ his posterity and himself, to maintain to the utmost of his power, this valuable constitution in all its rights ; * * * and above all, to guard with the most jealous circumspection, the introduction of new and arbitrary methods of trial, which under a variety of plausible pretences may, in time, imperceptibly, undermine this best preservative of English liberty.”

In conclusion of this question: If this right was not a pillar in the foundation of free government, -the declarations in our Constitution, that “it shall remain inviolate,” and our statute,, that, “All issues of fact joined in any suit at law, in any court of record, shall be tried either by the court, by jury, or by arbitrators ; First, the trial shall be by the court, where neither party shall demand a trial by jury; Second, a trial shall be by jury when either party shall demand such trial; Third, It shall be tried by arbitrators on the agreement of the parties to refer the matter in dispute to arbitrators;” Gould’s Digest, section 99, chapter 133, would determine our ruling.

Ho one denies this being a suit at law, in a court of record; and there can be no question but the issue is purely one offacL This law says in all such cases, the trial shall be by jury, where either parly demands it. As no exceptions are made in this law, we arc of opinion, a jury trial ought to have been awarded.

The power of this court to exercise original jurisdiction in eases of quo warranto and mandamus, is a question- not free from difficulty. The various Constitutions of the State, from that of 1836, to the present time, we regard as substantially the same upon this subject.

In the earlier history of the State, the question seemed not to have attracted any marked attention and discussion, and this court assumed jurisdiction, and occasionally the same was exercised, up to the twelfth volume of the Reports, when, in the case of Allis, ex parte, a most elaborate consideration of the subject was had, and it was determined that such writs should be issued by this court, only in the exercise of its appellate powers, or superintending control over inferior tribunals, when such interposition was necessary to prevent a failure of justice; and that ruling was the settled law of this court up to the twenty-fifth volume of Reports. See, Marr, ex parte, 12 Ark. 84; Allis, ex parte, 12 Ark. 102; Crise, ex parte, 16 ib., 195; Goad, ex parte, ib. 411; Jones v. City of Little Rock, 25 Ark. 287.

"We concur in the doctrine announced in those cases.

The opinion, by our Chief Justice this morning referred to,, in the so-called Confederate court, of • the State against Williams, is, by us, regarded of less weight than most learned opinions — not from a want of ability on the part of the distinguished gentlemen who are said to have presided over that tribunal, hut from the occasion and circumstances that produced what is said to have been their opinion. There was certainly a want of that calm reflection necessary to a judicious opinion upon important questions of constitutional law. We need not resort to our knowledge of that intense prejudice and excitement, seen only in the last convulsions , of a desperate war, and which challenge the reason of great as well as smaller minds. But the opinion, upon its face, shows that it was brought forth under a terrible military rule; and that the court’s own existence, if not destroyed, was seriously questioned by the war power under which it existed; and the authority it assumed to represent, had dominion over but a small part of the State.

"What purports to bo their opinion, sets out by declaring that' they will only assume jurisdiction in a case “involving the* civil rights of the State as sovereign, affecting vitally its character, and the proper administration of the government.”" These writs, not he issued at the suit of individuals, but only as the State, by her attorney general, may ask; yet, the very case then before them was at the instance of one claiming to be a temporary attorney general, and against the acknowledged attorney general of the State, and the court assumed jurisdiction over the person of the accused, when, according to their own records, he was residing in and protected by a hostile government. With this stretch of jurisdiction, and the language of the Judge who wrote the opinion, pouring out such a mass. of bitter invectives against the lawful government, and heap--ing like abuse upon a late Confederate for laying down arms, (an example that he himself soon followed), shows conclusively to us a want of such frame of mind as renders opinions profound and authoritative; and had that gentleman then been holding a valid court, he should have shown more of deliberate judgment, and less of passion, than appears in the pamphlet presented us, before we could have recognized his ipse dixit .as weighty authority.

The importance of having a court of appeals, a court for the '■correction of errors, situate remote from the excitement and passions that so often attend original trials, certainly was anticipated by the framers of our system of laws, and we think the whole theory of our jurisprudence is a cogent argument against the exercise of original jurisdiction by this court. And we regret that our state of health, since this trial began, has prevented us from elaborating this subject.

We concur in the finding of the court, on the facts of the ■case.


author: GREGG, J.

text:
    Hastings v White, et al.

    íOonstitutiouaIj Law. — The act, approved March 5th, 1867, known as the Confederate money act, is unconstitutional.

      Appeal from Randolph Circuit Court.

    Hon. L. L. Mack, Circuit Judge.
    Ratcliffe, English, Gantt §- English, for appellant.
   GREGG, J.

This was an action of debt, brought in the Randolph circuit court. The case was appealed from a judgment there to this court, and decided at the December term, 1866. 24 Ark. 269. The judgment in the circuit court was there reversed, and the* case remanded with instructions to sustain the demurrer to appellee’s second plea, wherein he set up that the note was to be discharged in Confederate money. In the meantime, the General Assembly passed “An act for the relief of persons bound by contract for the payment of Confederate money, or other paper currency,” approved March 5, 1867.

The court below attempted to conform its action to this act,, and not to the mandate of this court, and again pronounced judgment in favor of the appellee, 'upon, the same pleadings, from which this appeal is prosecuted.

In the case of Leach v. Smith and wife, 25 Ark. 246, the act of the Legislature, above referred to, was by this court declared unconstitutional.

The judgment of the Randolph circuit court is again reversed, and the case remanded, to be proceeded in according to law.


author: Bexstett, J.

text:
    Gatlin & Gibson v. Wilcox.
    Contract — Contracts, ordinarily, can only be rescinded.by mutual consent of the parties and cannot, in general, be rescinded in toto by one.

    Recisioh — Tbe infringement or partial failure of performance by one party to a contract, for which there may be a compensation in damages, does not authorize a recision or put an end to a contract.
    New Trials. — While this court will not revise the decision of the circuit court, refusing a new trial, where the only ground presented is mere weight of evidence — yet a verdict should be set aside where it is clearly against the weight of evidence, so that at first blush it would shock our sense of justice.

      Appeal from Crawford Circuit Court.

    ’Hon. E. D. Ham, Circuit Judge.

      Jesse Turner, for appellants.
    Contracts can only be rescinded by the mutual consent of the parties; and a contract cannot, in general, be rescinded in ‘toto, by one of the parties, when both of them cannot be placed in the identical situation which they occupied, and cannot stand upon the same terms as those which existed when the contract was made. It is also a clearly recognized principle, that if there is only a partial failure of performance by one party to a contract, for which there may be a compensation in damages, the contract is not put an end to. See Chitty on Cont. J Am. Ed. 573-4; 8 Parsons on Cont. S Ed. 191-8 ■and note nn.; 5 East. Ad. Ell. 599; 4 Mass. 508; 15 Mass. 819; 8 Watts, 1/33; 5 Ohio, 386; 17 Ark. 60S; 80 Ark. 484.

      'Garland ¿- Nash, for appellee.
    1. In this case, as G-atlin and Gibson did not comply with their ■contract, it was optionary with England, for whom appellee was security, to treat the contract as at an end, and having done so, they cannot complain. Bellows v. Cheek, 80 Ark. 1$4, and cases cited.
    2. This is especially true for the benefit of Wilcox, who was only surety. England could not make a new contract to bind Wilcox without his consent; so that if Mrs. Turner’s testimony be ail true, and still more definite, it could not affect Wilcox’s right here. 8 Vesey, 51fi; 6 Ark. 317; 15 Gray, (Mass.) 173; 7 HUI (N. Y.) 116.

    3. But as this case is presented here purely upon the weight of testimony, and as the verdict is not without testimony to support it, this court will not award a new trial. 85 Ark. 49; Rose’ Digest, p. 559, section 1J>.

   Bexstett, J.

.TRe appellants leased tlieir ferry privilege, from the south, bank of the Arkansas river, opposite'Yan Burén, to William E. England and appellee, for the period of four years, commencing on the first day of May, 1868, at the rate of five hundred dollars per year, payments-to be made quarterly. Default having been made in the payment of the first year’s rent, a suit was instituted before a justice of the peace, to recover a balance of three hundred dollars due the appellants. Judgment was obtained in favor of appellee. Appellants appealed to the circuit court. In the circuit court the case was tried by a jury, and appellee again had judgment. Appellants moved for a new trial:

First. Because the verdict is contrary to evidence.

SeeotvL Because the verdict is contrary to law.

Motion overruled; bill of exceptions setting out the evidence filed, and appeal taken to this court.

This case is presented here purely upon the weight of evidence, and it being a ease originating in a justice of the peace’s court, where no formal pleadings were requisite, we can only arrive at the issues by a cai’eful review of the evidence adduced upon the trial. The appellants, to sustain the issue on their part, introduced and read in evidence to the jury their account, as follows:

“William F. England and Granville Wilcox,
To Richard Ü. Gatlin and Robert L. Gibson, Dr. 1868 and 1869. To rent of ferry, from the first day of May, 1868 to the first day of May, 1869, at the rate of $500 00, to be paid in quarterly installments, as per contract herewith filed, marked “A.” $500 00
Cr.
By cash paid of March, 1869 - $200 00
Balance due, $300 00

And also, the accompanying contract between the plaintiffs and William P. England and the appellee:

“This agreement, made the fourth day of April, one thousand eight hundred and sixty-eight, between R; C. Gatlin and R. S. Gibson, of the county of Sebastian and State of Arkansas, of the,first part, and William E. England, as principal, and Granville Wilcox, as security, of the county of Crawford, State of Arkansas, of the second part, witnesseth that the said party of the first part hath letten, and by these presents, doth grant, devise and let unto the said party of the second part, all the privileges in the ferry, known as the Gibson ferry, for the term of four years from the first day of May, 1868, at the yearly rent of five hundred dollars, to be paid in equal quarter-yearly payments, and the said party of the second part doth covenant to pay to the said party of the first part, the said yearly rent, as hereiu specified, namely: in quarterly payments, on the first day of August, November, February and May, in each and every year; and at the end of said term, the said party of the second part will quit and surrender the premises.”

Said contract was signed, sealed and delivered.

Jesse Turner also stated, in behalf of the appellants, that sometime during the winter of 1869, the said contract was placed in his hands by the appellants for collection; that he instituted suit upon it before justice Lytle, and during the pendency of that suit, William E. England came into his office and told him, although he thought the appellants had done wrong in renting or leasing to Mr. C. G. Scott, the right of way for passengers, crossing at Scott’s ferry, up the river bank on the south side of the river to the Fort Smith road, yet, he had concluded to carry out the contract in good faith; that he was going up the Ohio to have a steam ferry-boat built, and would, when said boat was completed, return to Van Burén, and establish a ferry at that place, and said he would pay $200 00, on said contract, and the remaining $300 00, the balance of one year’s rent, within ninety days from that date. In a few days Mr. Tott England, son of Mr. W. E. England,. accompanied by Robert S. Gibson, one of the appellants, in the presence of the witness, paid over to said Gibson said sum of $200 00; that William F. England left for the Ohio in a few days, and has never returned.

The appellee, to sustain the issue on his side, introduced, as a witness, Richard 0. Gatling, one of the plaintiffs, who-stated that sometime in the month of June, after the contract, he rented or leased the right of way to one Charles G. Scott, so that passengers and travellers could more conveniently get to Scott’s ferry-boats, which were running near, or within the vicinity of the ferry privilege leased to appellee. It was also shown that Gatlin, one of the appellants, set their-fence back from the river, so as to make a convenient road to and from Scott’s ferry, and that he allowed Scott to make a landing on his (Gatlin’s) land. This was all the evidence introduced.

It appears from the evidence that a recovery, in the court below, was resisted on the ground that the appellee, for himself and ¡England, had a right to rescind and repudiate the contract, and thereby avoid its binding force, after appellants had leased the right of way to Scott. It is shown by the evidence that, although England complained because of the appellants having leased this right of way to Scott, he nevertheless, subsequently affirmed and recognized the binding force of the contract and determined to carry it out to the letter, and as an earnest of this, jaaid two hundred dollars on the rent and promised to pay the balance.

We think the lease of the right o'f way to Scott, was no infringement of the ferry privilege previously granted to England and appellee. In the words of the contract, it was simply the right to keep and maintain a ferry from appellants’land, across the river, to the opposite shore. Even, upon the assumption that the lease of the right of way to Scott, oyer appellants’ land, was an infringement of the ferry privilege previously granted to England and appellee, it does not follow that England, or the appellee, or both would have a right to rescind the contract and thereby defeat the action. Ordinarily, contracts can only be rescinded by the mutual consent of parties, and a contract cannot, in general, be rescinded in toto by one. It is also a clearly recognized principle, that if there is only a partial failure of performance by one party to the contract, for ■which there may be compensation in damages, the contract is not put an end to. See, Chitty on Contracts, 4 Am. Ed. 573-4; 2 Par. on Cont. 3 Ed. 191-2, and note nn , 5 East 449; 4 Mass. 502; 15 Mass. 319; 5 Ohio, 387; 17 Ark. 603; 20 Ark. 434.

The application of these principles dispels even the shadow of a pretext for a rescission of the- contract. Pior can it be said that the appellee did plead recoupment. As was said in the case of Desha v. Robinson, 17 Ark. 245, “The general principle under which recoupment is allowed, is where one brings an action for a breach of contract between him and the defendant, and the latter can show that some stipulation in the same contract was made by the plaintiff, which he has violated, then the defendant may, if 'he choose, instead of bringing a cross-action, recoup his damages arising from the breach committed by the plaintiff, whether the damages be liquidated or not.” In the case at bar the evidence does not show that appellee suffered any damage at all, from the leasing'the right of way to Scott by Gatlin, nor is it shown, in any manner, that appellee or England ever made any complaint in regard to said lease to appellants; nor is it shown that appellee or England ever offered to give up their lease, or in any manner tried to have their contract annulled until after it was sought to be enforced.

We are aware, that this court has repeatedly held, that it will not revise the decision of the circuit court, refusing a new trial, where the only ground presented is mere weight of evidence, unless there is a total want of evidence upon some point absolutely necessary to a recovery, or unless the verdict is clearly and palpably contrary to the weight of evidence. When there is a conflict of evidence, the jury being the exclusive judges of the facts, their verdict will not be disturbed; Sparks v. Beaver, 11 Ark. 630; State Bank v. McGuire, 14 Ark. 530; Brooks v. Perry, 23 Ark. 32. Yet, at the same time, while we would not deviate from the rule thus established, we believe it to be our duty to say, a verdict should be set aside, when it is clearly against the weight of evidence, so that at first blush it would shock our sense of justice and right. It was so held in Howell v. Webb, 2 Ark. 360; Vandever v. Wilson, 5 Ark. 407; Hagan v. Henry, 6 Ark. 86; Lewis v Reed, ib 428, Drennan v. Brown, 10 Ark. 138; Calvert v. Stone, 10 Ark. 491; State Bank v. Wooddy, ib. 638.

From a review of the evidence, as presented, we are unable to find any evidence upon the part of the appellee that could, in any manner, warrant the jury in finding a verdict in his favor. If we were able to do so, in a slight degree, we should hesitate in disturbing the verdict of the jury. But we think this a case which comes clearly within the rule “that the verdict at first blush, shocks our sense of justice and right.” The judgment of the circuit court is reversed and cause remanded to be proceeded in according to law.


author: Harrison, J.

text:
    Touhy & Green v. Rector.

      Appeals — Practice on, from Justices' court. — Upon appeal from a justice of the peace, the circuit court does not review the case as upon error, hut tries it anew, as if no judgment had been rendered, and no appeal can he taken except from the judgment.
    It is error, on dismissal of an appeal, for want of jurisdiction, to render judgment for costs.

      Appeal from Pulaski Circuit Court.

    Hof. Johf 'W'hytock, Circuit Judge.

      T. D. W. Yonley and Farr Fletcher, for appellants.

      Duffie $ Jones, for appellee.
   Harrison, J.

Rector, on the 12th clay of August, 1870, recovered, before .a justice of the peace of Pulaski county, a judgment against Touhy & G-reen for two hundred dollars, from which, as appears from the justice’s docket, the defendants, on the same day, “prayed an appeal to the circuit court, which was granted, by their giving bond;” but it does not appear, from the entries on the docket, or otherwise, that an affidavit for appeal was made or filed, or that an appeal bond was taken and approved by him; and no transcript was ever filed in the circuit court,, except the one in the proceedings hereafter mentioned.

On the 21st day of May, 1869, an execution was issued on the judgment, which the defendant applied to the justice to quash, upon the ground, as appears by their motion, among the papers of the case, that an appeal had been taken from the judgment; and, upon his refusal to do so, they appealed from his decision to the circuit court.

The transcript filed with the clerk, upon which their appeal was obtained, contained not only the decision fi;om which they sought an appeal, which, if the same were a judgment, was all that was required by the Code, but, also, all the entries, in the justice’s docket relating to the case, according to the former practice.

The circuit court, on motion of the plaintiff, dismissed the ease, hut rendered judgment in his favor, against the defendants, for costs,

When the judgment in this case was rendered, and until the adoption of the Code, an affidavit was a prerequisite to the granting of an appeal by a justice of the peace; and as none appears to have been made, it is, therefore, very clear, notwithstanding the statement upon the docket, that it “was granted! by their giving bond,”- that no appeal from the judgment was in fact taken.

Upon appeal from a justice of the peace, the circuit court does not review the case, as upon error, but tries it anew, as if no judgment had been rendered; and no appeal can be taken except from the judgment. Code, secs. 828 and 830. If errors are committed in proceedings, subsequent to the judgment, the court possesses other means appropriate for their correction.

The cause was, therefore, properly dismissed, but the circuit court, having no jurisdiction, its judgment in favor of Rector for costs was erroneous and void, and must be set aside.


author: Bennett, J.

text:
    Noble et al. v. Noble.

      Equity — fraudulent contracts binding on parties thereto. — All executed contracts tainted with fraud, are binding upon the immediate parties.

      Conteacts — When void as to general creditors. — A secret, voluntary conveyance made by an embarrassed creditor to another creditor in preference, is fraudulent and void as to general creditors, to that extent, but is binding on the parties thereto, and a court of equity will not relieve either party to such conveyance.

      Appeal from Ashley Circuit Court.

    Hon. H. 23. Moese, Circuit Judge.

      Watkins Bose, for appellants.
    The court erred in refusing to allow parol evidence to show that the absolute deed, was, in fact a trust and mortgage.
      Hoffman’s Chy. H. 31, and cases cited on note, p. 84; 5 Page Chy. 10, and cases there cited in note 1.

      W. D. Moore and English, Gantt <f English, for appellee.
    The appellee being the widow of the intestate, Littleberry B., was legally entitled to dower of one-third, for life, of the lands in question. Gould’s Dig. eh. 60, sec. 1, p. J¡A1; Nexo Digest, eh. 11, see. 1. (if it is the law of the State upon this subject.)’

    Although the court below may have erred in excluding the-parol testimony, to show that the deed from Bobert W. to-Littleberry B. was a mortgage, and not an absolute conveyance, still the decree ought to be affirmed, notwithstanding this error of the court below, upon this question of law. Davis v. Gibson, 8 Ark. 115; Payne v. Bruton, 10 lb. 54; Sweepzer v. Gaines, 19 1b. 96; Walker v. Walker, 7 lb. 5IjS; Moore v. Maxwell, 18 lb. 469.

    The dower right of the appellee was not affected by the sale of the lands under judgment and execution in favor of Dade’s representatives. It was sold as the property' of Bobert W. Roble, under a judgment against him, not against her husband, Littleberry I?.;but if it had beena judgment againsther husband, her dower right was not defeated by the sale, because the execution issued, and the sale occurred after the death of her husband. James v. Marcus, 18 Ark. 4%1-

   Bennett, J.

Martha B. Roble filed her petition in the Ashley circuit court in chancery, to the March term thereof, 1870, praying dower in certain lands, of which, as she alleged, her husband, Littleberry B. Roble, died seized. The appellants being in possession of the land, answered, admitting that Littleberry B. Roble, at the time of his death, held the legal title to the lands by a deed absolute on its face, but the fact was that these lands were formerly owned by one of the appellants, Bobert W. Noble, and were conveyed to said Littleberry, to secure tbe payment of certain debts owing by said Robert W. Noble to various parties, besides a debt wbicb be believed, at tbe time, be owed to said Littleberry R. Noble, wbo was his son, amounting to about fifteen hundred dollars.

Robert W. Noble was also surety for one S. B. "Wiggins, on a large debt due to one II. 0. Bade, wbicb debt was in course of litigation in tbe Ashley circuit court, and amounted to several thousand dollars. And the said R. W. Noble being apprehensive that recovery would be obtained against him as surety, and his property sold-to pay it, and not having property sufficient to pay the debt and his own debts, and desiring to pay his own debts in preference to security debts, made an arrangement with the said Littleberry R. Noble, by which he, the said Littleberry R. Noble, agreed to pay his debts, upon condition that he would convey to him his lands, by such a deed as would give him power to dispose of the same in any way he might desire to do, for the purpose of raising money to meet his debts; and in consideration of said agreement, the appellant, R. W. Noble, conveyed to said L. R. Noble said lands, by his deed absolute on its face. It is further alleged in the answer, that said Littleberry R. Noble, in his lifetime, did not pretend to have any other or different right to or interest in said lands, than as a trust to pay the debts of his father, said Robert W. Noble, with the proceeds of the same. That a portion of these lands had been conveyed by said Littleberry, in payment of a part of his father’s debts, and had come to the ownership and possession of appellees, under such conveyance, and that appellee, in the lifetime of her husband, and since his death, had notice of all these matters.

On the hearing, appellants offered to prove by parol testimony, that the deed of Littleberry was intended to operate only as a mortgage,- and was received by him as a trust, etc.

This was objected to by appellee, and the court sustained the objection and excluded the testimony, and held the deed good, and awarded dower. From which, decree appellants prayed an appeal.

The appellee does not deny that parol testimony is admissible to prove that a deed absolute on its face, was intended only as a mortgage, or as a security for a loan or debt, but they claim that the facts, as stated by the appellants in their answer, being true, the deed was a fraud upon the creditors of Robert W. Roble, therefore it was valid, as between the parties, their heirs, executors, administrators, etc.

The only question raised by the record, then, is: "Was the deed in question a voluntary conveyance, made in fraud of the rights of creditors? If so, it can make hut little difference, between the parties, whether it was intended as a mortgage, trust, or an absolute deed, because the parties to the original fraud cannot now be heard, asking to take advantage of their own wrong, and no court will take jurisdiction for the purpose of relieving them. It is their own folly to have made such a •conveyance. A conveyance of this sort, it has been said with great truth and force, is void only as against creditors, and then only to the extent in which it may be necessary to deal with conveyed estate for their satisfaction. To this extent, and this alone, it is treated as if it had not been made. To every other purpose it is good. Satisfy the creditors, and the conveyance stands. 1 Story Eq. Jurisprudence, sec. 371.

Here the deed was executed, and it was voluntary. "What were the motives inducing the execution of the same? Appellant, Robert W. Roble, being the owner of the land in question, was indebted, as he believed, to the intestate, in the sum of fifteen hundred dollars, and to other parties, whose claims were then in the hands of an attorney for collection, to the .amount of two thousand dollars. He was, also, security for one "W iggins for a large amount.

Turning to the answer of the appellants, we find these words: -“The defendant, Robert W. Roble, was also surety for one S. E. "Wiggins, in a large debt due to one II. 0. Hade, which debt was in course of litigation in the Ashley circuit court, and amounted to several thousand dollars; and said R. W. Noble, being apprehensive that a recovery would be obtained against him, as security, and his property sold to pay it, and not having property sufficient to pay the debt, and his own debts, and desiring to pay his oion debts in preference to security debts, made an arrangement with Littleberry JR. Noble, whereby he {Littleberry JR. Noble) agreed to pay his debts, upon condition that he would convey to him his lands, by such a deed as would give him power to dispose of the same.”

It is clear, then, that the motive inducing this conveyance was for the purpose of attempting to avoid the payment of the security debt to Dade, or, at least, to avoid doing so until all his own personal debts had been paid. Was this fraud silent? Whether a transaction is fair or fraudulent, is often a question of law; it is the judgment of law upon facts and intents. Oases have been repeatedly decided, in which even persons have given a full and fair price for goods and property, and when the possession has been actually changed, yet, being done for the purpose of defeating creditors, the transaction has been held fraudulent. Bridge v. Eggleston, 14 Mass., 245; Harrison v. Trustees of Phillips Academy, 12 Mass., 456. Thus, where a person, with knowledge of a decree against the defendant, bought a house and goods belonging to him, and gave a full price for them; the court said that the purchase, being with a manifest view to defeat the creditor, was fraudulent. So, if aman should know of a judgment and execution, and with a view to defeat it, should purchase the debtor’s goods, the transaction would be iniquitous. Worsely v. DeMattos, 1 Burr., 474, 475.

We are aware that cases of this sort are carefully to be distinguished from others, where sale or assignment, or other conveyance, amounts to giving preference in payment to another creditor, for such a preference or assignment is not treated as malu fide, but merely doing what the law admits to be rightful. But secret preference, made to cover up property and Bcreen it from the eyes of creditors, has always been treated as frauds upon their rights.

In this case it is not pretended that there was a loan by Lit-tleberry R. Roble to Robert W. Roble, or that the deed was intended to secure any debt between them, but it is admitted by the appellants that a part of the consideration of said deed was a debt of about fifteen hundred dollars, due from Robert W. Roble to the intestate, and was in payment of that debt, and not mere security. This certainly was some consideration for the deed, and, as between the parties and their legal representatives, to this extent, must be valid.

We have thus fully gone into the intention of the grantor and grantee, at the time of the execution of the deed, for the purpose of seeing what effect the admission or the rejection of the testimony sought to be introduced would have had upon the final decree of the court.

The fourth section of our Statute of Erauds declares that “every conveyance or assignment, in writing or otherwise, of any estate or interest in lands, or in goods and chattels, * made or contrived with the' intent to hinder, delay or defraud creditors or other persons of their lawful actions, damages, forfeitures', debts or demands, as against creditors and purchasers, prior and subsequent, shall be void.”

The general rule, however, has been declared to be that all executed contracts tainted with fraud are binding upon the immediate parties. When the contract is executed it is binding, as the law will not relieve either party, no matter how great may be the hardship to which he shall have subjected himself. Payne v. Benton, 5 Eng., 53; Butt v. Aylett, 6 Eng., 475; Anderson v. Dunn, 19 Ark., 650.

As shown by the answer of the appellants, this was a voluntary conveyance, made for the purpose of making a preference in the payment of some creditors, and with the intent, at least, to hinder, delay, and may be, defraud others of their lawful rights, there can no doubt.

Admitting the facts as sought to be proven, upon the whole consideration of the case, although the court below may have-erred in excluding parol testimony to show that the deed from Robert W. Noble to Littleberry R. Noble was intended as a mortgage, yet, we think, appellants are estopped from coming into a court of equity, for the purpose of setting aside the voluntary conveyance made, under such circumstances, by them or either one of them.

The decree upon the whole record is correct, and should he-affirmed.