author: Wood, J. McCulloch, C. J.

text:
    Trotter v. State.
    Opinion delivered May 9, 1921.
    1. Homicide — manslaughter—instruction.—In a case where the jury might have found the defendant guilty of involuntary manslaughter, an instruction that if the killing was in the prosecution of a lawful act done without due care and circumspection it was voluntary manslaughter, was erroneous and prejudicial where the jury found him guilty of voluntary manslaughter, since, if the jury had been properly instructed, they might have found him guilty of involuntary manslaughter.

      2. Criminal law — instruction — general objection. — A general objection to an instruction that is fundamentally defective is sufficient to direct the court’s attention to it.
    3. Criminal law — circumstantial evidence — instruction.—An instruction to the effect that when the State relies upon circumstantial evidence the chain of circumstances must be so convincing of defendant’s guilt as to exclude every other reasonable hypothesis was properly refused in a case where the State did not depend wholly upon circumstantial evidence for conviction.
    4. Homicide — evidence—reputation.—In a prosecution for murder where a witness testified that the reputation of decedent for turbulence and violence was bad, it was not error to refuse to permit the witness to state his opinion as to whether she was a dangerous woman, as the individual opinion of the witness concerning her character does not tend to prove that defendant had knowledge of such character.
    5. Homicide — degree op manslaughter — modification op sentence. —Where the court erroneously instructed the jury with reference to the degrees of manslaughter, and the jury found defendant guilty of voluntary manslaughter, and assessed the maximum punishment therefor, and the evidence would have justified a finding of guilt of involuntary manslaughter, the judgment will be modified, unless the Attorney General elects to have the cause remanded for a new trial, and a judgment entered reducing the sentence to imprisonment in the State penitentiary for one year, the maximum punishment for involuntary manslaughter.
    Appeal from Drew Circuit Court; Turner Butler, Judge;
    affirmed with modification.

      Henry & Harris, for appellant.
    1. The evidence is not sufficient to sustain the verdict. It will not support a verdict of any higher degree of homicide than involuntary manslaughter. 34 Ark. 639.
    2. There was error in refusing to admit testimony as to reputation of deceased. 2 Wharton, Cr. Law, § 1099; 2 Duval 328; 1 Mete. 370; 31 Miss. 504; 50 Mo. 357; 25 Mich. 405.
    3: The court erred in its instructions to voluntary manslaughter. C. & M. Digest, § 2356; 99 Ark. 188; 117 Id. 302.

      J. 8. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.

      1. The evidence is sufficient to sustain the verdict. 75 Ark. 246; 110' Id. 402.
    2. Testimony as to threats and dangerous character of deceased, was admissible. 29 Ark. 248; 139 Id. 446.
    3. There is no error in the instructions. C. & M. Digest, § 2345.
   Wood, J.

Appellant was indicted for murder in the first degree in the killing of Fannie Read. He was tried and convicted of voluntary manslaughter. From the judgment sentencing him to imprisonment in the State penitentiary for a period of five years, he appeals to this court.

The appellant, a negro eighteen years of age, and Fannie Read, a negress about thirty years old, on the 8th of August, 1920, were living in illicit cohabitation at Tennessee Spur in Drew County, Arkansas. On the night of that day, and near the house in which they were living, a gun was discharged and appellant and Fannie Read were observed running close together for a short distance. They stopped and were scuffling when a gun was fired again and Fannie fell. She was shot in the right groin with bird shot or buck shot and died from the effects of the wound.

It could serve no useful purpose to discuss in detail the testimony. There was evidence to warrant the jury in finding the appellant guilty of voluntary manslaughter. The testimony of appellant was in part as follows: “I had some puppies there, and there was something the matter with the chickens, and I got up (out of bed) to see what the trouble was. Fannie was out there with the gun and said, “You son-of-a-bitch, I told you I was going to get you,” and then she shot and ran. I ran after her to take away the gun. While we were tusseling over it, it went off and shot her. We were up close together ; both of us had hold of the guh; she grabbed my broken arm; I snatched it and it went off. I didn’t know the gun was loaded, but I saw her unbreech it while going down the road. She got the gun out of her room. It was my gun — -a single barrel shotgun. I didn’t shoot her. I could not have shot her. My arm was in a sling and in splints from my wrist to my shoulder and I could not get the gun up to my shoulder.” The above testimony, if believed, would have warranted the jury in finding appellant guilty of involuntary manslaughter. The court gave the following instructions on manslaughter:

‘ ‘ 8. Manslaughter is the unlawful killing of a human being without malice, express or implied, and without deliberation.

“9. Manslaughter must be voluntary upon a sudden' heat of passion, caused by a provocation apparently sufficient to make the passion irresistible. This is voluntary manslaughter.'

‘ ‘ 10. If the killing be in the commission of an unlawful act, without malice and without the means calculated to produce death, or in the prosecution of a lawful act done without due care and circumspection, it shall be manslaughter. This is voluntary manslaughter.

“11. Under the indictment in this case it is competent, if the proof justifies it, to find the defendant guilty of murder in the first degree, murder in the second degree, voluntary manslaughter or involuntary manslaughter.

“16. If you have a reasonable doubt as to whether it is murder in the. second degree or voluntary manslaughter, you should convict only of manslaughter. If you have a reasonable doubt whether it is voluntary or involuntary manslaughter, you should convict only of involuntary manslaughter.”

The appellant objected and excepted to the ruling of the court in giving each of the above instructions. While the court told the jury that they might find appellant guilty of involuntary manslaughter, there is no instruction informing the jury as to the punishment prescribed for such offense.

The testimony showed that the gun, from which the fatal shot was fired, was a single barrel shotgun. According to the testimony of the appellant, after Fannie Read fired the gun he ran after her for the purpose of disarming- her and was trying to snatch the gun away from her when the same was discharged, causing her death. If the jury believed that such was the intention of appellant, this conduct on his part was not unlawful; but the jury was warranted in 'concluding that the death of Fannie Read was thus caused without due care and circumspection on the part of the appellant.

The court, in its instruction No. 10, told the jury that, if the killing was in the prosecution of a lawful act done without due care and-circumspection, it was voluntary manslaughter. Applying the above instruction to the testimony, if the jury believed and accepted the testimony of the appellant, they had no alternative but to find him guilty of voluntary manslaughter. Instead of telling the jury that such conduct in the prosecution of a lawful act done without due care and circumspection was involuntary manslaughter, the court told the jury just the opposite. This was fatal error and highly prejudicial to the appellant; because, if the jury had been told that if they believed that the killing was done in the prosecution of a lawful act, but without due care and circumspection, they might find the appellant guilty of involuntary manslaughter, the jury under the evidence then would have been authorized to find, and might have found, the appellant guilty of involuntary'manslaughter.

The jurors were not lawyers and did not understand the difference between voluntary and involuntary manslaughter. Under their oaths they had to try the case according to the law as declared by the court. The court, in its instructions,- made no distinction between voluntary and involuntary manslaughter. The instructions concerning manslaughter were in irreconcilable conflict, and the jury, in attempting to follow them, would be led into inextricable confusion. The mistake of the court in giving conflicting and confusing definitions was not merely one of verbiage or a collateral misprision, which the jurors could themselves observe and correct. The jurors, being laymen, could not correct the mistake of the court. The fact should be noted here that the framers of the Revised Statutes and the Legislature of 1837 which adopted these “Revised Statutes” defining “manslaughter” as set forth in section one, and “voluntary manslaughter” as set forth in section two, do not designate the offense prescribed in section three as “involuntary manslaughter.” Chap. 44, § 3, Revised Statutes. The offense set forth in this section was first designated by our court as “involuntary manslaughter” in Harris v. State, 34 Ark. 469-79. The first digesters who designated it as such were Crawford & Moses, § 2356, C. &. M. Digest. When the Legislature itself has not undertaken to define “involuntary manslaughter,” and only the Supreme Court and digesters have undertaken to do so, how could a jury of laymen know the difference between voluntary and involuntary manslaughter? They could not know, and even if they did know, they are nevertheless bound to take the law from the trial court. The mistake was one which the court alone could correct. The court was not asked by the State to correct it, and did not correct it. The appellant, by his general objection to that particular instruction, called the court’s attention to such defects as rendered the instruction fundamentally wrong. The error was one of substance and not of form. It was an inherent defect. Therefore, a general objection to that particular instruction was sufficient to direct the attention of the court to it. Fones v. Phillips, 39 Ark. 17-40.

2. Appellant complains of the ruling of the court in refusing to give its prayer for instruction concerning the effect of circumstantial evidence, as follows:

“A. You are further instructed that when the State relies upon circumstantial evidence, to justify the conviction of a person charged with crime, then such chain of circumstances, as a matter of law, must not only be inconsistent with defendant’s innocence, but must be so convincing of his guilt as to exclude every other reasonable hypothesis, and must establish in the minds of the jury an abiding conviction, to a moral certainty, .of the truth of the charge, and unless this is done in this case then it is your duty to acquit the defendant. ”

There was no error in the ruling- of the court. This was not a case in which the State depended wholly upon circumstantial evidence for the conviction of appellant.

3. J. D. Ratterree testified that he knew the general reputation of Fannie Read while she lived in the town of Monticello for turbulence and violence, or peace and quietude — that such reputation was bad. The witness was asked: “From that reputation did you consider her a dangerous woman?” The -court would not permit the witness to answer the question, and the appellant duly excepted to- the ruling of the court. This ruling of the court was correct. The individual opinion of a witness concerning the character of the deceased is not competent testimony because that does not tend to prove that the accused had knowledge of the fact that the deceased was a person of turbulent, violent and dangerous disposition. But when such is the general reputation of the deceased, it tends to show that the accused had knowledge of such character; and where it is doubtful as to who was the probable aggressor, such testimony is competent because it tends to throw light upon that issue.

‘ ‘ The reputed character of the deceased, on a charge of homicide,” says Mr. Grreenleaf, “may be evidential as indicating his reasonable apprehension of attack upon an issue of self-defense; for, in a quarrel or other encounter, the opponent’s violent or turbulent character, as known to the accused, may give to his conduct a significance of hostility which would be wanting in the case of a man of ordinary disposition. It is the essence of this principle, howevei’, as all courts concede, that the reputed character of the deceased should have been known to the accused.” 1 Greenleaf on Evidence, p. 42; § 14; 1 Wharton’s Criminal Evidence, p. 246.; Underhill on Evidence, §§ 324, 325; Palmore v. State, 29 Ark. 248, 261, 262, and cases there cited; Coulter v. State, 100 Ark. 561-564.

4. The jury returned a verdict of guilty against the. appellant for voluntary manslaughter and fixed his punishment at a longer term in the State penitentiary than the shortest period prescribed for that offense. Therefore, it is manifest that if the jury had had an opportunity to return a verdict of guilty against the appellant for involuntary manslaughter and had found him guilty of such offense, they would not have fixed his punishment at a shorter period than one year, which is the longest period prescribed as punishment for that offense. The prejudice to appellant in the granting of instruction No. 10 will he cured if the punishment of appellant is fixed at one year in the State penitentiary instead of five.

For the error in granting the State’s prayer for instruction No. 10, the judgment convicting the appellant of voluntary manslaughter must be reversed, but, as a conviction for this offense includes the conviction also for involuntary manslaughter, and as it is obvious that t he jury would have assessed the maxinmum punishment for that offense, unless the Attorney General elects within ten days to have the cause remanded for a new trial for voluntary manslaughter, the judgment of the circuit court will be modified and a judgment will be entered here affirming the conviction of involuntary manslaughter, and certified by the clerk of this court to the keeper of the State penitentiary reducing the sentence of the appellant to imprisonment in the State penitentiary for one year for “involuntary manslaughter.” Brown v. State, 34 Ark. 232-239; Noble v. State, 75 Ark. 246-250; Routt v. State, 61 Ark. 594; Harris v. State, 119 Ark. 85-94.

McCulloch, C. J.

(dissenting). Instructions Nos. 8, 9 and 10 are in the language of the statute defining manslaughter, and the error in No. 10 in declaring that the facts related constitute voluntary manslaughter was obviously clerical. It whs a mere “slip of the tongue,” and the meaning of the court was obvious to any one who took notice of the language used. If appellant’s counsel took notice of the error, they ought to have called the attention of the court to it by-a specific objection. If they did not notice it, then it is not conceiveable that the jury took sufficient notice of it to be misled by the incorrect statement. In other words, this is an instance, I think, where it is peculiarly essential that a specific objection should have been interposed to the incorrect language in an instruction. The trial judge repeated the precise language of the statute and manifestly intended to write the word involuntary, instead of voluntary. Perhaps the error was made by the stenographer who transcribed the instruction. At any rate it is presumable that the trial judge would have corrected the error if his attention had been called to it, for it may be assumed that he did not intend to give two definitions of voluntary manslaughter. The objection to this instruction was formal and general, the same as made to the other twenty-six instructions of the court covering all of the grades of homicide.

The error is therefore harmless and should be disregarded.

Mr. Justice Smith joins in this dissent.


source: Caselaw Access Project

author: Hart, J.

license: Public Domain

text:
    Caldwell v. Missouri State Life Insurance Company.
    Opinion delivered May 9, 1921.
    1. Contracts — quasi and implied contracts distinguished. — An implied contract is one that is inferable from the conduct of the parties, as carrying out their intention; while a quasi or constructive contract is one where the law imposes an obligation enforceable in a contractual action because of the conduct of the parties, though contrary to their intention.
    2. Attorney and client — implied contract. — Where the attorney of an insurance company resigned his employment upon discovering misappropriation of the company’s funds by its president, and reported the facts to the directors, who refused to take action thereon, whereupon he reported the matter to the State Superintendent of Insurance and thereby Gaused the president’s resignation, there was no implied contract by the company to pay for the attorney’s ■ services.

      3. Attorney and client — constructive contract. — Where an insurance company refused to avail itself of the services of an attorney in exposing misappropriations by its president, whereupon the attorney reported the same to the Superintendent of Insurance, and procured the president’s resignation, the law does not impose on the company any contractual obligation to pay the attorney for his services in the matter.
    Appeal from Mississippi Chancery Court, Osceola District; Archer Wheatley, Chancellor;
    affirmed.
    STATEMENT OE EAOTS.
    The Missouri State Life Insurance Company brought this suit in equity against Clinton L. Caldwell to foreclose a mortgage on 320 acres of land in the Osceola District of Mississippi County, Arkansas, given to secure an indebtedness of $11,000 borrowed by the defendant from the plaintiff.
    Clinton L. Caldwell filed an answer in which he admitted the allegations of the plaintiff’s complaint, and by way of cross-complaint asked for Judgment against the plaintiff in the sum of $60,000. He based his right to recover against the plaintiff on a state of facts substantially as follows:
    The Missouri State Life Insurance Company is a corporation organized under the laws .of the State of Missouri and does a life insurance business in that and several other States, including the State of Arkansas. The plaintiff is a stock company with about 11,000 stockholders. In 1918 it had 87,000 policy holders and outstanding insurance to the amount of $157,000,000. Its assests were about $17,000,000 and its capital, surplus and profits, about $3,000,000. John Gr. Hoyt was president of the company and in active charge of its business. He owned about one-fourth of the stock, and the remainder of the stock was .owned by about 11,000 stockholders.
    The defendant, Clinton L. Caldwell, was an attorney at law, duly licensed to practice in the States of Missouri an'd Arkansas. Caldwell specialized in the examination of land titles, and for about fifteen years prior to January 7, 1918, there was numbered among bis clients the plaintiff which employed him to examine and approve titles to real estate offered as security for loans made by it. His compensation for such services was paid exclusively by the borrower. Caldwell usually made $10,000 a year out of this business. A short time prior to January 7, 1918, Caldwell discovered that John G. Hoyt, president of the plaintiff company, was using the funds of his company for his own private gain, in violation of section 7065 of the Revised Statutes of Missouri for 1919. Caldwell resigned 'from the employment of the company .on the 7th day of January 1918, and on January 14, 1918, he presented to the Missouri directors of the plaintiff company a specific statement in writing showing that John G. Hoyt had purchased two sections of cut-over land in Missouri for about $26,000 in the name of E. L. Harris and had loaned Harris $65,000 of the plaintiff’s money ostensibly to pay the purchase price of said land, whereas $38,500 of said amount was not needed to pay the purchase price of said land, but was to be used in clearing and improving said land.
    The directors caused the charge made by Caldwell to be presented at the annual meeting of the stockholders held in St. Louis on January 15, 1918. The stockholders declined to consider the charge and re-elected Hoyt as a director, and the board of directors re-elected him as president of the company. On January 16, 1918, Caldwell presented his charge to the superintendent of insurance for the State of Missouri, who found this and additional charges made by Caldwell to be true: Whereupon he demanded and received the resignation of Hoyt from the presidency of the board of directors of said company on February 28, 1919. The resignation was duly accepted by the board of directors on that day.
    Among the charges brought by Caldwell against Hoyt, similar to the charge detailed above, was one where he frustrated the attempt of Hoyt to purchase 20,000 acres of cut-over land for the sum of $520,000 in the name of other parties and to borrow from the plaintiff $800,000 with which to pay for and improve said land.
    The plaintiff interposed a demurrer to the cross-complaint, which was sustained by the court, and the cross-complaint was dismissed'for want of equity. The defendant,' Caldwell, has appealed.

      Little, Buck, & Lasley, for appellant.
    This case calls for the application of the law of quasi-contracts upon two theories, (1) receipt, acceptance and retention of benefits, and (2) the performance of an obligation by appellant which it was the legal and moral duty of appellee company to perform. Keener on the Law of Quasi-Contracts, pp. 19-20; Woodward on Quasi-Contracts, pp. 9-10; IK, pp. 190-4; Keener on Quasi-Contracts, pp. 341-2; lb. 34617; Kennedy on Civil Salvage, p. 4 et seq. See, also, 83 Ark. 605; 23 Fed. Cases 13, 630; 30 Id. 18, 194. The cross-complaint states a cause of action, and this cause should be reversed.

      J our dan, Bassieur & Pierce and Block & Kirsch, for appellee.
    1. The transactions out of which it is sought to have a contract implied or “constructed” all occurred in Missouri, and the laws of that State govern. All matters must be governed by lex loci contractus. 44 Ark. 213; 46 Id. 66; 73 Id. 518; 137 Id. 80.
    The parties to a contract are conclusively presumed to have contracted with reference to the law existing at the time when and the place where the contract is made and to be performed. 40 Ark. 423; 25 Id. 625. If the person for whom services of a kind usually made the subject of charg’e are rendered knows of their rendition, he is liable therefor, though he made no express request, in the absence of special circumstances negativing* his liability. 2 Page on Contracts, § 774.
    If the services are accepted voluntarily, a previous request is not necessary to the creation of a liability. 2 Page on Contracts, § 775. This rule, however, applies only wliere the party for whom the services are rendered is free to take their benefit or reject it. If the services are of such a nature that-he has no choice but to accept them, he can not be said to accept them voluntarily. Such acceptance creates no liability. 2 Page on Cont., § 776; 61 Mo. App. 64; 75 S. W. 966; 81 Am. Dee. 105; 33 Ohio St. 374; 95 Ark. 156; 42 N. E. 15. See, also, 6 R. C. L. 558; 61 Mo. App. 64; 95 Ark.' 156.
    The complaint must be looked to to determine what the allegations really are. The allegations of acceptance are directly in the teeth of the allegation that the board of directors and stockholders would have nothing to do with appellant. And they are mere conclusions of law and are not admitted by the demurrer. 163 Mo. 342; 63 S. W. 705; 142 IT. S. 510; 110 Ark. 422. In the light of these authorities the cross-complaint does not state facts to constitute a cause of action “on the theory of benefits received or services rendered.”
    2. No cause of action on gmsi-contract is made. Woodward on Q^asi-Contracts, % 207; 34 Ch. Div. 234, 248.
    Under the laws of Missouri appellee was under the supervising control of the State Insurance Supernitend-ent, who was empowered to inquire into all violations of insurance laws. Rev. Stat. of Mo. 1919, § 6095; lb., § 6129; Woodward, Quasi-Contracts, §§ 196, 321, pp. 314-15. The cross-complaint states no cause of action.
   Hart, J.

(after stating the facts). The only issue raised by the appeal is whether on the admitted facts the defendant, Caldwell, was entitled to recover of the defendant on an implied contract the value of the services for which he claims compensation. The defendant does not claim there was any express contract between him and the plaintiff, but he claims that he is entitled to recover from the plaintiff the reasonable value of his services on an implied contract.

In discussing the difference between contracts implied from the facts and contracts implied in law, quasi or constructive contracts, in the case of Hertzog v. Hertzog, 29 Penn. St. Repts. 465, the-court said: “But it appears in another place that Blackstone introduces this thought about reason and justice dictating contracts, in .order to embrace, under his definition of an implied contract, another large class of relations, which involve no intention to contract at all, though they may be treated as if they did. Thus, whenever, not our variant notions of reason and justice, but the common sense and common justice of the country, and therefore the common law or statute, law, impose upon any one a duty, irrespective of contract, and allow it to be enforced by a Qontract remedy, he calls this a case of implied contract. Thus out of torts grows the duty of compensation, and in many cases the tort may be waived, and the action brought in assumpsit. It is quite apparent, therefore, that radically different relations are classified under the same term, and this must often give rise to indistinctness of thought. And this was not at all necessary; for we have another, well-authorized technical term exactly adapted to the office of making the true distinction. The latter class, are merely constructive contracts, while the former are truly implied ones. In one case the contract is mere fiction, a form imposed in order to adapt the case to a given remedy; in the other it is a fact legitimately inferred. In one, the intention is diregarded; in the other, it is ascertained and enforced. In one, the duty defines the contract; in the other, the contract defines the duty. ’ ’

It is manifest that no contract can be implied from the facts in this case. Caldwell had resigned his position under the plaintiff and did not during the time he performed the services in question -act for the plaintiff. He presented his charges against the president of the company to the directors who resided in Missouri, and they in turn presented the same to the stockholders at their annual meeting. The stockholders declined to take notice of the charges, and re-elected Hoyt as a director, and on the same day the hoard of directors re-elected him as president. This negatives the idea that the plaintiff accepted the services of Caldwell, or realized that they were deriving any benefit therefrom. Caldwell was not called upon by the corporation to perform the services in question. It not only did not accept his services, but did not even acquiesce in his performance of them. After being turned down by the stockholders, Caldwell presented his charges to the superintendent of insurance and thereby caused the superintendent to demand and receive Hoyt’s resignation. The corporation had no voice in the matter and the action of Caldwell was purely voluntary. We can not perceive how the corporation could be said to have made an implied contract with him by accepting the benefits resulting from his services, which it had no power to reject. Hence no contract is raised by implication from the facts to pay Caldwell what his services are reasonably worth.

But counsel for the defendant claim that he is entitled to recover on a contract implied in law. There is nothing in the record from which this relation can be implied. There is no general equitable principle that one who receives the benefit of another’s work against his will is liable to pay for it. There is a large class of cases where suits are brought to recover money paid by mistake, or where it has been obtained by fraud. In such cases the law implies a promise to repay the money. In the application of a like principle a recovery has also been allowed where necessaries had been furnished an insane person, or neglected wife, or child. So in the application of the principle this court allowed a recovery to a physician who performed an operation on an unconscious person in an effort to save his life. Cotnam v. Wisdom, 83 Ark. 601. The court said that the law implied a contract to pay a reasonable fee to the physician because the unconscious person was in the same situation as persons incapable of contracting by reason of being infants, or insane persons. The recovery is allowed in such cases on the ground that the services are necessary to save or preserve the life of the principal. However, it can have no application in the case at bar.

There is another class of cases where the law prescribes the rights and liabilities of persons who have not entered into any contract with each other, but between whom circumstnces have arisen which make it just and equitable that one should have a right, and that the other should be subject to a liability similar to the rights and liabilities in certain cases of express contracts. Thus if one has obtained money from another through the medium of oppression, imposition, extortion, or deceit, or by the commission of a trespass, such money may be recovered back; for the law implies a promise from the wrongdoer to restore it to the rightful owner, although it is obvious that this is the very opposite of his intention. Dusenbury v. Speir, 77 N. Y. 144. In that case the court likened constructive contracts of this nature to constructive trusts in a court of equity.

In 13 C. J. 224, the learned author said: “.Among the instances óf quasi or constructive contracts may be mentioned cases in which one person has received money which another person ought to have received, and which the latter is allowed to recover from the former in an action of assumpsit for money had and received, or money received to the use of plaintiff, cases in which one person has been compelled to pay money which another ought to have paid, and which he is allowed to recover from the latter in an action of assumpsit for money paid to his use; cases of account stated, from which the law implies a promise which will support an action of as-sumpsit; judgments on which an action of assumpsit or debt may be maintained, according to the circumstances, because of a promise to pay implied by law; cases in which an obligation to pay money is imposed by statute; cases where a person wrongfully appropriating property to his own use becomes, liable to pay the owners the reasonable value thereof; cases in which a person fails to deliver specific property and becomes liable for the money value thereof; cases where one party wrongfully compels another to render him valuable services, and a promise to pay their value is implied; cases where one man has obtained from another by oppression, extortion, or deceit, or by the commission of a trespass; cases where necessaries have been furnished to a wife wrongfully abandoned by her husband, although he has given notice that he will not be responsible;-and cases in which the husband is permitted to recover the wife’s funeral expenses from her estate.”

None of the cases referred to are similar to the case at bar. Neither the law alone, nor natural equity would require the plaintiff to pay the defendant for his services in the present case. Caldwell was under no duty to act in the premises. He was a mere volunteer, and did not act from any sense of duty imposed by law or by his relationship to the plaintiff. He may have been acting as he thought for the public good, but this fact did not make the plaintiff liable for his services. He was under no duty to perform them, and the plaintiff, neither by words, act, nor conduct, recognized, acquiesced in, or accepted his services as beneficial to it. There was no duty performed by Caldwell which would define the contract, nor was there any contract implied by the conduct of the plaintiff. The mere fact that Caldwell voluntarily preferred charges against the president of the plaintiff company, and thereby caused his removal, was not sufficient upon which to predicate a recovery in this case, and it could make no difference that his action resulted in a benefit to the plaintiff company.

It follows that the decree must be affirmed.


text:
    Finch v. Hunter.
    Opinion delivered May 9, 1921.
    1. Wills — CONSTRUCTION.—The cardinal rule in construing a will is to ascertain and declare the intention of the testator, to be gathered from reading the entire will and construing it so as to give effect to every clause and provision therein if this can be done.

      2. Wills — construction.—Where a testator, having two children, F. and H., devised certain land “to each of my children and H.,” and devised the rest of his lands to his wife for life with remainder to H., the first devise is to the two children, the words “and H.” being used in the sense of “including EL,” to indicate that H. was included in the words, “to each of my children.”
    3. Wills — grandchildren.—Grandchildren are not included in a gift to the testator’s children, in the absence of words in the contract to indicate such intention.
    Appeal from Sebastian Chancery Court, Greenwood District; J. V. Bourlcmcl, Chancellor;
    reversed.
    STATEMENT OE FACTS.
    Mrs. H. C. Finch brought this suit in equity against her sister, Einmer Lee Hunter, for the partition of certain real estate to which she claims an undivided one-half interest under the will of their deceased father.
    A. J. Hunter owned the lands in controversy in his lifetime and himself wrote the will which is the basis of this lawsuit. A. J. Hunter died in July, 1919, leaving surviving- him his widow, Mrs. A. J. Hunter, two children, the plaintiff, Mrs. H. C. Finch, and the defendant, Emmer Lee Hunter, and two grandchildren, Loyd Gilliam, and Earl Gilliam, the sons of a deceased daughter. A. J. Hunter was married four times, and the plaintiff, the defendant, and the deceased daughter were all children of different mothers. His widow had no children.
    The will was duly signed and attested and the body of it is as follows:

      “Knoiv all men by these presents, that I, A. J. Hunter, of Lavaca, in the county of Sebastian and State of Arkansas, of sound and disposing mind and memory, do make and publish this, my last will and testament, hereby revoking all former wills by me at any time heretofore made.
    “1. I hereby constitute and appoint J. B. Branch to be the sole executor of my last will, directing my executor to pay all my just debts and funeral expenses and the legacies hereinafter given, out of my estate.

      “2. After the payment of my said debts and funeral expenses, I give to each of my children, and Em-mer Lee Hunter, what is known as the Horse Shoe Bend west of Big Creek, towit: (SE) southeast of the (SE) southeast quarter of section (18) eighteen, township (8)' éight, north of range (29) twenty-nine west, containing nine acres, more or less.
    “And northeast part of southeast (SE) of southeast (SE) section (13) thirteen, township (8) eight, range (30) thirty, eleven acres and eighty-five one-hundredths and the north part of southwest, section (13), township (8), range (29), containing six acres, lying west of Doctor Fork, making Doctor Fork and Big Creek line, containing in all twenty-seven acres, more or less.
    “And after payment of all my just debts I give devise to my said wife, during her natural life or long as she remains my widow, all the balance of my real estate, and after her decease or marriage to go to my daughter, Emmer Lee Hunter.
    “I give and bequest to my grandson, Loyd Gilliam, five dollars to be paid within twelve months after my decease; I give and bequest to my grandson, Earl Gilliam, five dollars to be paid within twelve months after my decease.
    “I give and bequest to my daughter, Willie Finch, five dollars to be paid within twelve months after my decease.
    “In testimony whereof, I hereunto set my hand, and publish and declare this to be my last will and testament, in the presence the witnesses named below, this 24th day of April, A. D. 1918.”
    The contest in this case is over the twenty-seven-acre tract in the second clause of the will.
    The chancellor found in favor of the defendant, and the plaintiff has appealed.

      Pryor & Miles, for appellant.
    The intention of the testator in the construction of a will must be gathered from its language used when ■unambiguous and not from oral testimony. There is no ambiguity here; it clearly gave to the two children the 27 acres of land and the balance of the real estate to the daughter, Emmer Lee Hunter.- 68 Ark. 369; 116 Id. 328.
    The appellee, Emmer Lee Hunter, pro se.

    A clerical mistake in a will may be corrected to effect the manifest intention of the testator as collected from the context of the will. 22 Ark. 567. Where two parts of a will are irreconcilable the latter clause prevails. IIi.
    A testator is presumed to have used the word ‘ ‘ children” in a will in its ordinary and strict meaning, unless the contrary is plainly shown. 105 Ark. 618. The testator’s intent should be carried out as ascertained in view of all the provisions of the will.' 98 S. W. 1167. Considering the will altogether, there is no prejudicial error, as the evidence sustains the finding.
   Hart, J.

(after stating the facts). It is the contention of the plaintiff that the language of the will gives the Horse Shoe Bend land, consisting of twenty-seven acres, equally to the plaintiff and to the defendant, and such was the contention made by the plaintiff before the chancellor;

The chancellor was of the opinion that, if he had intended to divide this place between the plaintiff and defendant in equal parts, the testator would have used language as follows; “To my children, Willie Finch and Emmer Lee Hunter.” The chancellor was of the opinion that it was the intention of the testator to give all of his land to Emmer Lee Hunter, but to charge a certain portion of it with a life estate in favor of his widow.

It is insisted that this contention is borne out by the facts that the testator gave a specific legacy of $5 to Willie Finch, thus evincing an intention to give her this sum and no more.

On the -other hand, it is insisted that the use of the words, “I give to each of my children and Emmer Lee Hunter, what is known as the Horse Shoe Bend” place, shows that the testator intended his two daughters to share in this place equally.

The cardinal rule in construing a will is to ascertain and declare the intention of the testator. That intention is to be gathered from reading the entire will and construing it so as to give effect to every clause and provision therein if this can be done. Union & Mercantile Trust Co. v. Hudson, 143 Ark. 519, and Heiseman v. Lowenstein, 113 Ark. 404. The language used is, “I give to each of my children and Emmer Lee Hunter, what is known as the Horse Shoe Bend” place. The word ‘ ‘ and, ” it is true, is generally used in a conjunctive sense, but such is not always the case. The word “and,” as used in the clause quoted above, rather expresses the relation of addition and means “including” or “together with.” The word “and” has no synonym; but the Century Dectionary says that it is approximately expressed by “with, along with, together with, besides, also, moreover.”

We think the word is used in this sense in the clause referred to. The testator used it to indicate a connection .of what follows with what has gone before in the way of description. In other words, the testator meant to say that he gave to each of his children, together with Emmer Lee Hunter, or including Emmer Lee Hunter, the Horse Shoe Bend place. In this way only can effect be given to every clause in the will. In the construction placed upon the clause by the chancellor the words, “each of my children and,” are merely surplusage. It was not necessary to use the words, “and Emmer Lee Hunter,” but these words were probably used by the' testator to emphasize the fact that he wanted Emmer Lee Hunter to share with his other daughter in the Horse Shoe Bend place. He knew that he was going to leave the rest of this land to her after charging it with a life estate in favor of his widow, and might have feared that on this account she would be left out of a share in the Horse Shoe Bend place. For this reason he probably added the words, “and Emmer Lee Hunter,” to indicate that she was included in the words, “to each of my children.” So that the testator meant to say, I give to each of my children along with Emmer Lee Hunter what is known as the Horse Shoe Bend place.

It is not claimed by the grandsons that the word “children” in the clause just referred to includes them, and it may be said in this connection that a gift to the children of a person means one’s immediate offspring and does not extend to grandchildren. Alexander on Wills, vol. 2, § 841; Schouler on Wills, Executors and Administrators (5 ed.), vol. 1, § 533, and 40 Cyc. 1451.

Of course, this rule is merely presumptive and would yield to a contrary intention as gathered from the context. There are no words in the context, however, to indicate that the word “children” is used in other than its ordinary and natural meaning. The testator left a bequest to each of his grandchildren and specifically designated them as his grandsons.

Therefore, we are of the opinion that the chancellor erred in not decreeing a partition of the Horse Shoe Bend place between the plaintiff and the defendant, and for that error the decree will be reversed and the cause remanded for further proceedings not inconsistent with this opinion.


text:
    Ribelin v. Loyd.
    Opinion delivered May 9, 1921.
    1. Mortgages — form of release. — A mortgage is a mere security for a debt, and the property may be released therefrom by either written or parol agreement.
    2. Mortgages — effect of release. — A receipt given to the mortgagor by the mortgagee reading, “Received from L. ** $95, which I hereby release 3 Poland China male pigs on which I have a lien, for his use for meat hogs only,” held an absolute, and not a conditional, release.
    3. Mortgage — release—consideration.—A release of a portion of mortgaged chattels, given in consideration of a payment of money was based upon a sufficient consideration.

      Appeal from Logan 'Circuit Court, Southern District; James Cochran, Judge;
    affirmed.
    STATEMENT OF FACTS.
    This is a suit in replevin brought by the appellees against appellants before a justice of the peace to recover three hogs.
    Appellees recovered judgment in the justice court, and appellants duly prosecuted an appeal to the circuit court. There the case was tried cZe novo on evidence substantially as follows:
    On the 10th day of February, 1919, D. R. Loyd executed a chattel mortgage on certain personal property to secure an indebtedness of something over $800. Among the property mortgaged was a Poland China gilt and the increase thereof. S. A. Ribelin was a dealer in general merchandise, and D. R. Loyd traded with him. In the fall of the year it was ascertained that the mortgaged property was insufficient to pay Loyd’s debt. Loyd had bought a farm on a credit and had mortgaged it to Ribe-lin to secure the initial payment on it. He sold the farm for $95 more than he had agreed to pay for it. Loyd owed Ribelin a balance of $400 on the mortgage indebtedness and agreed to let him have the $95 if he would release the three hogs which were the increase of the Poland China gilt described in the mortgage. This Ribelin agreed to do and gave to Loyd the following: “95.00.
    “Received from D. R. Loyd, in the land deal with Johnnie Loyd, ninety-five dollars, which I hereby release three (3) Poland China male pigs on which I have a lien, for his use for meat hogs only.
    “S. A. Ribelin.”
    In December, 1919, D. R. Loyd also gave Ribelin a mortgage on the crop he intended to grow the next year, and also on his live stock. In the spring of 1920 D. R. Loyd got into some trouble and had to leave the community. His wife and children were not able to make the crop and so notified Ribelin. They moved away from the farm and according to the testimony of Mrs. Loyd she turned over the mortgaged property to Mr. Ribelin and the three hogs in question were hauled to town with it upon the agreement that they should then be turned .over to her. Subsequently Ribelin refused to let her have the three hogs in question, and, upon her husband’s return, this suit was brought to recover them. The three hogs in question were not included in the mortgage given by Loyd to Ribelin in December, 1919.
    According to the evidence adduced by appellants, D. R. Loyd left the country in the spring of 1920, and did not make any crop at all that year. After he left, Mrs. Loyd told Ribelin that she could not make the crop and told him to go and get the mortgaged property. The hogs in controversy were also turned over to Ribelin by Mrs. Loyd. Ribelin admitted the execution of the release copied above, but stated that it was executed with the understanding that Loyd was to use the hogs for meat hogs, and was to cultivate the crop which he had mortgaged to Ribelin for the year 1920.
    The court instructed the jury to find for the plaintiffs unless they should find by a preponderance of the evidence that the plaintiffs had turned over the hogs to the defendants on their debt.
    The jury returned a verdict for appellees, who were the plaintiffs in the court below, and the defendants in the court below are the appellants here.

      Evans & Evans, for appellants.
    The release was a conditional one, and appellees, not having used the hogs for meat, and not having made the the crop in 1920, as they agreed to, release is of no avail, and that was no consideration ofr the release. The court erred in its instructions given and in refusing those asked by appellants. If the instrument is a release at all, it is only a contingent or conditional one, and the contingency or condition never existed nor occurred. 1 Beach on Modem Law of Contracts, § 481; 8 C. B. 483 and note; 9 Cyc., pp. 670, 761; Anson on Contracts, ch. 1, § 11. The intention of tlie parties was plainly expressed, and under it plaintiffs were not entitled to recover. It was error for the court to decide questions of fact that were for the jury, and it was error to direct a verdict. 57 Ark. 461; 79 Id, 445; 51 Id. 155; 73 Id. 431. The burden of proof was on plaintiffs. 29 Ark. 270; 22 Id. 396; 25 Id. 11, 482; 4 Crawford’s New Digest, 4417.

      John P. Roberts and Kincanmon & Kinca/t%non, for appellees.
    Plaintiffs were entitled to recover the hogs under the testimony, and defendants were not prejudiced by the court’s failure to give the instruction asked nor the instructions given, as they covered the law fully under the testimony. 38 Cyc. 1809; 122 S. "W. 309.
   Hart, J.

(after stating the facts). The judgment was correct. The only disputed question of fact was whether or not appellees turned over the three hogs in controversy to appellants in part satisfaction of their mortgage indebtedness. This was a disputed question of fact, which the jury settled in favor of appellees.

It is contended, however, by appellants that the release was a conditional one, and that appellees, not having used the hogs for meat, and not having made the crop in 1920, as they had agreed to do, the release is of no avail to them.

We can not agree with counsel in this contention. A mortgage is a mere security for a debt, and the property may be released from the mortgage by parol agreement, as well as by a written one. Fincher v. Bennett, 94 Ark. 165, and Horton v. Thompson, 124 Ark. 545.

The release in question by its terms is an absolute one. It is true that it recites that the three hogs are released from Loyd’s mortgage for his use for meat hogs. The lattter part of the release, however, is a mere declaration of the use to which the hogs are to be put, and does not in any sense change the release from an absolute one to a conditional one. To have that effect, language must have been used from which the conclusion that the release was a conditional one could have been drawn.

Again, it is contended that there is no consideration for the execution of the release. This contention is based upon the fact that Loyd gave to Ribelin a mortgage on the land from which he derived the profit of $95 for the initial payment. This did not make any difference. The mortgage was a mere security for the payment of the indebtedness, and this was satisfied when the land was sold. The substance of the transaction was that Loyd made $95 profit in the purchase and sale of the land, and ftibelin agreed to release the three hogs from the mortgage indebtedness if Loyd would let him have the $95. This was a sufficient consideration for the execution of the release, and the court did not err in treating it as an absolute release of the hogs.

It follows that the judgment must be affirmed.


author: Smith, J.

text:
    Alexander v. State (1). Decker v. State (2). Blount v. State (3).
    Opinion delivered May 9, 1921.
    Intoxicating liquors — enforcement of eighteenth amendment.— The Eighteenth Amendment prohibiting the manufacture, sale or transportation of intoxicating liquors within the United States, and legislation thereunder by the Congress, did not impair the integrity of any existing State statute to enforce prohibition nor interfere with the enactment of any future legislation by the State for that purpose.
    (1) Appeal from G-arland Circuit Court; Scott Wood, Judge;
    affirmed.
    (2 & 3) Appeals from Randolph Circuit Court; John B. Baker, Judge;
    affirmed.

      Arthur Cobb and Jerry Mulloy, for appellants.
    The demurrer to the indicment should have been sustained, as the Volstead act supersedes the State law, as the laws are irreconcilable, and the State law must give way as the United States law is supreme. 5 R. C. L., p. 912, § 6; 5 L. R. A. 78. The United States courts have exclusive jurisdiction, and the demurrer should have been sustained. 12 Cyc. 137, 4; 32 Ark. 117; 99 Am, Dec. 360; 34 Conn. 280; 4 ¡Blackf. 146; 116 Mass. 1; 161 Id. 204; 12 Mete. 387; 8 Id. 313; 41 Am. Dec. 509; 15 N. H. 83; 3 Park., Crim. 358; 2 Am. Dec. 645; 5 How. 410; 2 Wood 428.
    A court created by a State Legislature has no jurisdiction, and Congress can not confer upon a State court jurisdiction of offenses against the Federal law. 12 Cyc. 200, 4; 34 Conn. '280; 7 Id. 244; 7 Id. 239; 17 Johns 4; 3 Park., Crim. 358; 11 Johns 459; 53 Pa. St. 112; Rice 400; 2 Va. Cases 34; 1 Id. 321; 1 Wheat. 304.
    The United States law is supreme, and the State laws are abrogated. 220 U. S. 151; 233 Id. 492; 238 Id. 456; 134 Id. 55; 80 U. S. (20 Law. Ed.) 597; 209 U. S. (52 Law. Ed.) 670; 140 S. W- 746; 214 U. S. 218; Const. U. S., art. 1, § 6; Zb. art. 6; 12 Cyc. 137, 4 and 200, 4; 264 P'ed. 376,

      J. 8. Utley, Attorney General, Elbert Godwm and W. T. Hammock, Assistants, for appellee.
    There is no conflict between the United States and our State laws, and both the United States and State courts' have jurisdiction, and an. offense may be against both laws. 5 Howard 432; 9 Id. 560; 134 U. S. 372; 14 How. 13; 205 U. S. 34; 132 Id. 131; 22 Pac. 190 ; 22 Fed. Rep. 285; 9 Am. Dec. 196; 75 Am. Dec. 554. The State law is not excluded unless the act of Congress malíes the United States juridiction exclusive and thus supersedes the State law. Bishop on Cr. Law, § 173; 52 Pac. 986 ; 90 N. E. 337; 28 Fed. Cases 522; 18 Tex. App. 224; 110 Atl. 224; 175 N. W. 683-5. See, also, as sustaining the doctrine, 4 Fed. Cas. 1203; 36 N. E. 328; 6 Ind. 436; 2 Ore. 221; 59 Ya. 933; 1 Wash. T. 263; 121 N. W. 1052; 206 TJ. S. 333; 148 Id. 197; 32 Pao. 134; 168 Fed. 991; 22 Fed. 285,190.
    A person living under two governments or jurisdio-tions may commit two crimes — one against the State and one against the United States. 22 Fed. 285; 9 Am. Dec. 196; 14 How. 13; 75 Am. Dec. 554; Bishop, Or. Law, § 173. See, also, 28 Fed. Cases 522; 18 Tes. App. 224; 110 Atl. 224; 175 N. W. 683; 175 N. W. 685; 148 U. S. 197; 168 Fed. 991. '
   Smith, J.

Appellants were each convicted, in separate trials, of selling intoxicating liquors, and a reversal is asked in each case upon the ground that the law of this State on the subject of the sale of intoxicating liquors has been supersedéd and annulled by the Federal statute commonly known as the Yolstead act (c. 85, Acts 66th Congress, 41st U. S. Stat. at Large, 305), enacted to enforce the 18th Amendment to the Federal Constitution.

This amendment reads as follows:

‘ ‘ Section 1. After one year from the ratification of this article, the manufacture, sale or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from, the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

“ Section 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.

The question here presented has already been considered by the courts of last resort in several of the States.

The first of these opinions was that of the Supreme Judicial Court .of Massachusetts in the case of Commonwealth v. Nickerson, 128 N. E. 273. The subject was considered by that court in the most exhaustive manner, and the opinion of the court by Rugg, C. J., is one of great erudition. He leaves but little to be added to the discussion, and other courts which have since been called upon to decide the same question have followed the lead of that court. Other cases on the subject are: Allen v. Commonwealth (Supreme Court of Appeals of Virginia), 105 S. E. 585; State v. Fore (Supreme Court of North Carolina), 105 S. E. 334; Jones v. Hicks (Supreme Court of Georgia), 104 S. E. 771; Scroggs v. State (Supreme Court of Georgia), 105 S. E. 363; Edwards v. State (Supreme Court of Georgia), 105 S. E. 363; Smith v. State (Supreme Court of Georgia), 105 S. E. 364; Meriwether v. State (Supreme Court of Mississippi, en banc), 87 So. 411; Kyzar v. State (Supreme Court of Mississippi, Division B), 87 So. 415; Jones v. Cutting (Supreme Judicial Court of Massachusetts), 130 N. E. 271; Franklin v. State (Court of Criminal Appeals of Texas), 227 S. W. 486; Ex parte Gilmore (Court of Criminal Appeals of Texas), 228 S. W. 199; State ex rel. v. District Court (Supreme Court of Montana), 194 Pac. 308; Russell v. State (Court of Criminal Appeals of Texas), 228 S. W. 948.

The Supreme Court of Massachusetts considered all the objections offered to the existing laws of that State on the subject of the illegal sale of liquor which have been made here against our own laws on that subject, and held that none of the objections made were well taken.

It is pointed out in the opinion of Chief Justice Rugg that the Eighteenth Amendment is the only instance to be found in the Constitution of the United States, or any of its amendments, where there is a definite declaration that both Congress and the several States have ‘ ‘ concurrent power” to enforce any constitutional mandate by appropriate legislation.

The Supreme Court of Georgia, in the case of Jones v. Hicks, supra, says the use of the word “several” before the word States is significant in determining the meaning and intent of the amendment. Joint enforcement was not intended. The suppression of the liquor traffic and the establishment of prohibition was the thing aimed at, and the purpose of the amendment was to invoke the aid of the Congress and that of the several States in accomplishing that purpose. To that end each of these governmental agencies was enjoined to contribute by the enactment of appropriate legislation. As was said in the case of Commonwealth v. Nickerson, supra: “The force and effect of the words of the Eighteenth Amendment, while possibly enlarging the permissible scope of State legislation respecting importation and exportation of intoxicating liquors, leaves open to State legislation the same field theretofore existing for the exercise of the police power concerning intoxicating liquors subject only to the limitations arising from the conferring of like power upon Congress with its accompanying implications, whatever they may be.

“Having regard only to the words of the Eighteenth Amendment, the Congress and the several States are placed upon an equality as to legislative power. It is only when the amendment is placed in its context with other parts of the Constitution that the supremacy of the act of Congress if in direct conflict' with State legislation becomes manifest.”

Counsel for the appellants cite the case of Hickman v. Parlin, 88 Ark. 519, in which this court held that the State Insolvency Act' of June 26, 1897, was superseded by the Bankruptcy Act of Congress of July 1, 1898, in so far as they relate to the same subject-matter and affect the same persons, and argue that the effect of that decision is to put our liquor laws in abeyance.

This point was also considered in the Nickerson case, where it was said: “There is a group of cases which hold that, while the general power to deal with some subjects is vested in Congress'by the Constitution, yet in the absence of action by Congress, if the power is not denied to the States, legislation by them touching the subject is valid and enforceable. By article 1, section 8, clause 4, of the Constitution, Congress is given power ‘to establish # * # uniform laws on the subject of bankruptcy throughout the United States.’ There are no words in the Constitution as to the power of States over bankruptcies. Until Congress has acted by passing a general bankrupt law, the several States may enact laws of that nature, which are suspended when Congress acts upon the subject. See, for example, Sturges v. Crowninshield, 4 Wheat. 122, 193, 4 L. Ed. 529; Ogden v. Saunders, 12 Wheat. 213, 6 L. Ed. 606; Griswold v. Pratt, 9 Metc. 16. Those decisions rest on the principle that a uniform law on bankruptcies throughout the United States can not readily coexist as operative legislation with various State laws covering the same field. That principle in our opinion is not applicable to the subject-matter of the Eighteenth Amendment. There is no inherent or necessary incompatibility between the contemporaneous existence and enforcement of both Federal and State laws designed to enforce prohibition. Therefore it is manifest to us that the explicit words of section 2 vesting ‘concurrent power’ to enforce prohibition both in Congress and in the States mean something more than the ‘concurrent power’ to which reference is made in Sturges v. Crowninshield, 4 Wheat. 122, 193, 4 L. Ed. 529, as existing without express words. ’ ’

It is here argued, for the reversal of the judgments in each of the appeals before us, that, if the respective States may enact and enforce its own legislation on the subject, authority is found only for legislation enacted subsequent to the adoption by the States of the Eighteenth Amendment, and that, as the appellants here were each convicted under legislation enacted prior to the adoption of that amendment, a reversal must be ordered on that account.

This feature of the question was considered by the Supreme Court of Georgia in the case of Jones v. Kicks, supra, where that court pointed out that the Eighteenth Amendment was a grant' of additional power to the Federal Government, but in this grant of power the States had parted with none of their own power to enforce prohibition within their own sphere of action. That court said: ‘ ‘ The amendment and legislation thereunder by the Congress does not impair the integrity of any existing State statute to enforce prohibition, nor can it interfere with the enactment of any future legislation by the States for that purpose.”

On this same subject the Supreme Court of Appeals of Virginia, in the case of Allen v. Commonwealth, supra, said: “We think there can be no conflict between the Federal and State legislation on the subject under consideration so long as neither State nor Federal government attempts to interdict the other from dealing with the conduct in question as Federal or State offenses, respectively, as the case may he, and where the legislation of the State is confined to punishing the conduct as State offenses and the legislation of the Federal Government is confined to punishing the same conduct as Federal offenses, neither undertaking to nullify the laws of the other enacted and operating as the expression of the edicts, respectively, promulgating the provisions as to what shall be offenses against the respective sovereign-ties and the punishments therefor.”

And further: “Under the view which we take of the subject, any statute which the State may have enacted or may enact creating or. not creating the State offenses aforesaid would not be in conflict with the Volstead act, or with the Eighteenth Amendment, unless and only to the extent that such State statute should attempt to nullify the Federal law creating the Federal offenses aforesaid. The State law could not authorize the commission of the offenses condemned by the Federal law so as to permit the offender to go free of punishment under the Federal law. It can, however, impose or withhold punishment for such conduct as State offenses, or impose different punishments for State offenses consisting of the same conduct.”

On this phase of the case we quote again from the Nickerson ease, supra, where the Supreme Court of Massachusetts said: ‘ ‘ The amendment does not require that the exercise of the power by Congress and by the States shall he coterminous, coextensive and coincident. The power is concurrent, that is, it may be given different manifestations directed to the accomplishment of the same general purpose, provided they are not in immediate and hostile collision one with the other. In instances of such collision the State legislation must yield. ’ ’

In the case of Rhode Island v. Palmer, 253 U. S. 350, 64 L. Ed. 356, the Supreme Court of the United States held that the Eighteenth Amendment had been properly submitted to and ratified by the States. The opinion in that case is unusual in that it consists in an announcement of the conclusions of the court without any exposition of the reasoning by which those conclusions had been reached. In the seventh conclusion announced in that opinion it is said that the second section of the amendment, which declares that “the Congress and the several States shall have concurrent power to enforce this article by appropriate legislation,” does not enable Congress .or the several States to defeat or thwart prohibition, but only to enforce it by appropriate means. That is, the States may enact laws to aid in the enforcement of the amendment, but may not enact laws to defeat its enforcement. This aid which the States are thus invited to render may be given by enforcing laws antedating the amendment, or by enacting and enforcing laws subsequent thereto and in conformity therewith.

It is pointed out in a number of the opinions which we have cited above that the Volstead act manifests no purpose on the part of the Federal G-overnment to take exclusive possession of the field of operations in the enforcement of this amendment, and, quoting again from the Nickerson case, supra, ‘ ‘ Even if under the Eighteenth Amendment Congress has the clear power to do so, its enactment would not be given that effect except in instances where its design to accomplish that result is plain and the repugnance between the Federal and the State statute is absolute, positive and irreconcilable, so that both can not stand together. Missouri, Kansas & Texas Ry. v. Harris, 234 U. S. 412, 419, 34 Sup. Ct. 790, 58 L. Ed. 1377, L. R. A. 1915 E, 942; Illinois Cent. Rd. v. State Public Utilities Com., 245 U. S. 493, 510, 38 Sup. Ct. 170, 62 L. Ed. 425.”

See, also, Abbate v. United States (Circuit Court of Appeals, 9th Circuit), 270 Fed. 735; United States v. Holt (District Court North Dakota), 270 Fed. 639; Woods v. City of Seattle (District Court, W. D. N. D. Washington), 270 Fed. 315; Ex parte Crookshank (Dis-Court S. D. S. D. California), 269 Fed. 980; Feigenspan, Inc., v. Bodine, 264 Fed. 186; United States v. Peterson, 268 Fed. 864.

In the case of State v. Green. 86 So. 919, the Supreme Court of Louisiana held that the act of that State which denounced as a misdemeanor the retailing of intoxicating liquors without having obtained a license was superseded and in effect repealed by the Eighteenth Amendment and the Volstead act; but the reason given was that such a law, even if enacted subsequent to the adoption of the Eighteenth Amendment, would not be “appropriate legislation,” but would be absolutely vio-lative of the amendment. But that court, in the case of Shreveport v. Marx, 86 So. 602, held that the State statute prohibiting the sale of liquor, although in force when the Eighteenth Amendment and the Volstead act became effective, was not repealed or superseded by such amendment or act of Congress.

The distinction between the two Louisiana cases is of course that one act tended to defeat the purpose of the amendment and the Volstead act in aid thereof by licensing the sale of intoxicating liquors, while the other statute tended to enforce the amendment. The first act was therefore held to be void, and the second held to be valid.

We conclude therefore that act No. 30 (Acts 1915, p. 98; § 6160, C. & M. Digest), under which appellants were convicted, is a valid and subsisting law, and the judgments of conviction are affirmed in each case.


text:
    American Bauxite Company v. Tudor.
    Opinion delivered May 9, 1921.
    1. Master and servant- — safe place to work — instruction.—In an action for injuries received in a fall in dodging a rolling boulder., released by a fellow-servant, where the only danger incident to the employment arose out of the manner in which the employees themselves discharged their duty, it was error to submit to the jury the safety of their place of work.
    2. Master and servant — questions for the jury. — In an action for injuries from a fall in dodging a rolling boulder released by a fellow-servant, held under the evidence that plaintiff’s negligence and his fellow-servant’s negligence were questions for the jury.
    3. Negligence — contributory negligence — instruction. — An instruction that plaintiff’s negligence would not defeat a recovery if the company’s negligence was of a greater degree than his own, in which event the jury would diminish the amount of damages, if any, in proportion to the amount of negligence attributable to the plaintiff, if any, held proper.
    Appeal from Saline Circuit Court; W. II. Evans, Judge;
    reversed.

      Mehaffy, Bonham & Mehaffy, for appellant.
    No case was made for a jury, and it was error to refuse a peremptory instruction. A servant, even as to dangers created by the acts of the master, assumes the risk of such danger when he is aware of such act of negligence and appreciates the danger. 141 Ark. 438, and many other needless to recite.
    The court gave conflicting instructions, which is always error. 138 Ark. 563; 76- Id. 224; 83 Id. 61; 99 Id. 377.
    An instruction which ignores a material issue about which the evidence is conflicting is misleading and prejudicial. 93 Ark. 564. See, also, 95 Ark. 108; 94 Id. 282; 96 Id. 184; 102 Id. 627; 134 Id. 575.
    No case was made for a jury, and a verdict should have been directed for defendant.

      N. A. McDaniel, for appellee.
    1. The instructions objected to are not set out in appellant’s abstract, and this court will not presume error but will presume that correct instructions were given curing any errors complained of. 129 Ark. 95; 132 Id. 449; 121 Id. 274; 126 Id. 562. Any objections thereto are considered waived. 126 Ark. 562; 104 Id. 375. See, also, 103 Ark. 430; 101 Id. 207.
    Appellant has failed to set out in his abstract two instructions given by the court. None of those given were inherently defective as defined in the law Century Dictionary verb.0. 95 Ark. 108.
    Rule 9 requires the instructions to be set out — those given as well as those refused — if not, the case will be affirmed. 90 Ark. 230. See, also, Brickwood’s Sackett on Instructions, § 175.
    2. The court properly refused the peremptory instructions asked by appellant, as there was evidence to establish the issue. 105 Ark. 136; 98 Id. 370; 120 Id. 206; 119 Id. 589.
    The question of negligence is a mixed question of law and fact and should be submitted to a jury. 35 Ark. 602, 614; 71 Id. 445.
    3. The instructions given for appellee are not in conflict with those given for appellant, but, if so, they are not set out in the abstract. The instructions must be taken as a whole, and if on the whole they are correct it is sufficient. 132 Ark. 78. See, also, 89 Ark. 24; 95 Id. 209; 118 Id. 337.
    The instructions state the law, and the objections thereto are not well taken. 88 Ark. 204; 70 Id. 441. They were not abstract nor conflicting, nor were they misleading or prejudicial. 96 Ark. 614; 90 Id. 278; 88 Id. 231; 76 Id. 348, 599.
    The question of assumed risk was submitted to the jury by instruction No. 7 for appellant. It is not practical or possible to state all the law in one instruction, and it is sufficient if the various phases of the law are submitted to the jury in separate instructions. 93 Ark. 589.
    The evidence was conflicting, and the verdict of the jury settles all questions of fact and is final on appeal, as there is no error in the instructions as to the law.
    Under our statute appellant is liable, as no warning of danger was given and appellee did not assume the risk. Appellant is liable for the employee’s negligent act. C. & M. Digest, § 7137. A servant does not assume the risk of negligence of a fellow-servant (93 Ark. 88), unless he realizes the danger and then exposes himself to it. 105 Ark. 533; 98 Id. 227; 108 Id. 578 f 97 Id. 344.
   Smith, J.

Appellee recovered judgment to compensate an injury sustained while engaged in digging and mining ore as an employee of the appellant company.

The instructions given at his request permitted a recovery if the jury found that the company had directed him to work in an unsafe place, or if a finding was made that one of his fellow-servants had negligently rolled a boulder in front of him, thereby causing the injury.

On behalf of the company, it is insisted that no case was made for the jury; but the court refused to grant-its prayer for a peremptory instruction. The court did, however, give at the company’s request-an instruction, numbered 2, which told the jury to find in its favor unless they found that appellee was injured “by reason of having dodged a boulder that was thrown or pushed in his way,” and it is insisted that error was committed in submitting any other question of negligence.

We think the testimony made a case for the jury; but the case was made upon a showing of negligence on the part of a fellow-servant, and no other question should have been submitted, and it was error to have submitted the question of the master’s breach of duty to furnish the servant a reasonably safe place in which to work.

According to appellee, he was injured in the following manner: he was carrying, boulders and was piling them on the railroad track, where cars came and hauled them away, and, while thus employed, an Italian, who was similarly engaged, released a boulder which he was carrying, and, impelled by the force of gravity, the boulder rolled down the side of the mine toward appellee, who, attempting to escape the rolling boulder, became overbalanced and was thrown on his head. Appellee was perfectly familiar with his surroundings. This was a bauxite mine, and it was appellee’s duty, as well as that of the Italian, to excavate the boulders and carry them away so that the earth might thereafter be removed. The only danger incident to the employment arose out of the manner in which the employees themselves discharged their duty, and it was error to submit the question .of the safety of their place of work to the jury. The mine where the injury occurred was only ten feet deep, and the incline, down which the rock rolled, furnished the means of ingress into and egress from the mine.

Other objections were made to the instructions given, but we think they will pass out of the case upon a trial anew when the case is submitted on the question alone of the fellow-servant’s negligence.

The proof on the part of the company tended to show that appellee was not injured in the mine, and that, if he did fall, the fall was not occasioned by any negligence of a fellow-servant, but by his own negligence. However, we have said that question is for the jury.

It is insisted that an erroneous instruction was given on the measure of damages, in that the jury was not required to take into account the contributory negligence of appellee. Such, however, is not the case when instructions numbered 4 and 5 are read together, as we think they should be. In instruction numbered 4 the jury was told that appellee’s negligence would not defeat a recovery if the company’s negligence was of a greater degree than his own, in which event they would “diminish the amount of damages, if any, in proportion to the amount of negligence attributable to the plaintiff, if any.” Instruction numbered 5 dealt with the elements of damage and told the jury the matters they would take into account in computing the damag’d, and this sum was, of course, to he reduced as stated in instruction numbered 4.

For the error indicated in submitting the question of negligence in regard to the safety of the place in which appellee was employed the judgment will be reversed and the cause remanded for a new trial.


author: Humphreys, J.

text:
    Bank of Blytheville v. State.
    Opinion delivered May 9, 1921.
    1. Banks and banking — liability of stockholdees for public funds. — Crawford & Moses’ Digest, §§ 2832, 2835, making stockholders of hanks liable for public funds deposited therein, does not violate Const., art. 12, § 6, providing that the General Assembly may alter or revoke charters in such manner that no injustice may be done the corporators, or Const. U. S., art. 1, § 10, prohibiting acts impairing the obligation of contracts.
    2. Constitutional law — power to alter or revoke charters.— Under Const., art. 12, § 6, reserving to the General Assembly the power to alter or revoke the charter of a corporation, in such manner that no injustice may be done to the corporators, before an act changing the charter of a corporation can be declared unconstitutional, it must appear that the effect of the act is confiscatory of the stock or property of the corporation.
    3. Banks and banking — change in charter — acceptance.—Where stockholders of a bank accepted their original charter, subject to the State’s reserved power to alter or revoke it, it was not necessary that they should formally accept the act imposing liability on stockholders for public funds on deposit (Crawford & Moses’ Dig., §§ 2832, 2835) since they impliedly accepted the act by continuing in business after its passage.
    4. Banks and banking — repeal of statute. — Crawford & Moses’ Digest, §§ 2832, 2835, making bank stockholders liable for public funds deposited therein, was not repealed by the banking act of 1913, which does not deal with that particular subject nor expressly repeal such sections.
    5. Statutes — repeal by implication. — Repeals by implication do not arise unless there is an irreconcilable repugnancy between the later and older statutes.

      6. Statutes — repeal by implication. — A general affirmative statute could only repeal by implication prior statutes of a general affirmative nature dealing with the same subject, and would not have the effect of replacing a prior act dealing with a particular subject.
    7. Banks and banking — liability for public funds. — The liability of stockholders of a bank for public funds, imposed by Crawford & Moses’ Digest, § 2832, was not defeated by failure of the county collector to deposit each specific fund in a separate account, as the statute imposes no such duty.
    8. Banks and banking — what are “public funds.” — Crawford & Moses’ Digest, § 2832, making bank stockholders liable for public funds deposited in their bank, does not apply to funds belonging to a drainage district; § 2835 defining “public funds” as “money, warrants or bonds or other paper having a money value, belonging to the State or to any county, city, incorporated town or school district therein.”
    9. Banks and banking — public funds. — Voluntary payments of money for school purposes to the county collector, and by him deposited in a bank, were public funds, for which the stockholders of the bank were liable, under Crawford & Moses’ Digest, §§ 2832, 2835.
    Appeal from Mississippi Circuit Court, Chiekasawba District; if.. H. Dudley, Judge;
    reversed in part.

      Hughes & Hughes, E. P. Rosenberger and Little, Buck & Lasley, for appellants.
    1. The act of April 9, 1891, as amended by act March 17,1903, had the effect of increasing the burdens of the stockholders in the Blytheville Bank, which did them an injustice contrary to art. 12, § 6, of our Constitution, and impairs existing obligations in violation of art. 1, § 10, Constitution of the United States. Sections 1990 and 1993 of Kirby’s Digest, being C. & M. Digest, §§ 2832 and 2835, were repealed as to banks by act 113, Acts 1913. Where the Legislature takes up the whole subject and covers the entire matter of a former statute, the prior act is repealed. 73 Ark. 536; 70 Id. 27.
    2. All of the funds going to make up the deposit sued for were not public funds within C. & M. Dig., § 2835. The amount belonging to road districts is not shown. The burden of doing this was on appellee to prove all material facts alleged by him. 105 Ark. 697. Appellee alleged that the deposit was made up of public funds. This was denied. The allegation was material, and the burden was on appellee to show that the deposit was made up of public funds and within the purview of our statute which must be strictly construed. 59 Ark. 344; 70 Id. 481. A recovery could only be had for public funds deposited. C. & M. Digest, § 2835. Drainage district funds are not county funds. 102 Ark. 106; 116 Id. 356. nor State funds, nor a city, town or school district fund, and hence not a public fund at all, and the court erred in olding a drainage district fund was a public fund, and appellant was not liable.
    3. Appellees were not entitled to recover because the statute is unconstitutional and void, the statute was repealed by the banking act of 1913, and appellees did not separate the funds going to make up the deposit sued for so as to fall within the definition of public funds as set out in C. & M. Digest, § 2835. It was also error to allow a recovery for the drainage district funds, $4,139.23, and the $2,000, the voluntary contribution of the property holders in Blytheville Special School District.

      Nelson & Keck, for appellees.
    1. The act is constitutional. Acts like this have often been upheld. Elliott on Private Corporations (3 ed.), § 559; Clarke on Corp. (Hornbook Series), § 227; 10 Cyc. §§ 676-7.
    The Legislature has the right of alteration and revocation of charters of corportions, limited only by the inhibition that no injustice be done the corporators. 58 Ark. 407; 64 Id. 83; 87 Id. 587; 94 Id. 27; 136 Id. 128. The adjudicated cases in Arkansas have no application to the present case. 130 Ark. 135; 219 U. S. 121; 236 Id. 579; 165 Id. 1.
    2. C. & M. Dig., § 2832, was not repealed by the banking act of 1913. If it was, it was by implication, as there is no direct repeal. 50 Ark. 132; 53 Id. 337; 53 Id.
      418; 92 Id. 270; 116 Ark. 414-15; 120 Id. 589. There is no repugnancy between the acts. 123 Ark. 76; 127 Id. 266. Repeals by implication are not favored, and the two statutes must irreconcilable and repugnant. 123 Ark. 187; 142 Id. 146.
    Drainage and improvement districts are agencies of the government for public purposes, and their funds are public funds. 99 Ark. 336; 107 Id. 189; 134 Id. 115.
   Humphreys, J.

Appellees instituted suit against appellants in the circuit court of Mississippi County, Chickasawba District, to recover $41,293.15, alleged to be public moneys collected as taxes by D. H. Blackwood, the duly elected, qualified and acting collector of Mississippi County, and deposited by him in the Bank of Blytheville. A recovery was sought under the act of April 9, 1891, page 230, as amended by the act of March 17,1903, page 142. The parts of the acts involved in this litigation are digested in Crawford & Moses’ Digest as sections 2832 and 2835.

Appellants interposed the following defenses to the alleged cause of action: First, that the acts made the basis of the suit are unconstitutional and void; second, that the acts made the basis of the suit were repealed by act No. 113 of the Acts of the General Assembly of the State of Arkansas for the year 1913, known as the General Banking Law of the State; third, that the collector did not make separate deposits of the alleged public funds in said bank; fourth, that the drainage funds to the amount of $4,139.23 and thé voluntary payment of $2,000 for school purposes were not public funds as defined by section 2835 of Crawford & Moses ’ Digest.

The cause was submitted to the court, sitting as a jury, upon the pleadings and evidence, which resulted in a verdict and judgment against appellants in the sum of $41,293.15.

The facts necessary to a determination of the issues involved on this appeal are, in substance, as follows: The Bank of Blytheville, of which appellants were stockholders, was organized and the stock issued in the year 1900. It began business immediately and continued to do business as a banking corporation until the 11th day of March, 1920, at which time, on account of insolvency, it was taken over by the State Banking Department under act No. 113, Acts of the General Assembly, 1913. Prior to the time said bank was declared insolvent and taken over by the deputy State Bank Commissioner, D. H. Blackwood, the sheriff: and ex-officio collector of Mississippi County, had deposited in said bank, to his credit as collector, $41,293.15. The funds deposited were collections for the Chickasawba. District of Mississippi County. $4,139.23 of said amount was taxes collected for drainage districts 7, 9,16 and 17; $2,000 of said amount was a voluntary tax paid to the collector, for the Blytheville Special School District; the remainder of it was taxes collected for the State, county, schools, towns and cities. Immediately after the bank commissioner assumed control of the bank, D. H. Blackwood, the collector, made a demand for the entire amount deposited, which demand for payment was by the bank refused.

Appellant’s first insistence for reversal is that the act of April 9,1891, as amended by act of March 17,1903, had the effect of increasing the burdens of the stockholders in the Blytheville bank, who are appellants herein, in relation to public funds, which did an injustice to them, contrary to the inhibition of article 12, section 6 of the Constitution of the State of Arkansas, and which had the effect of impairing existing obligations in violation of article 1, section 101, Constitution of the United States. It is true that, prior to the amendatory act of March 17, 1903, stockholders of a bank were not liable for public funds, and that the amendatory act made them liable for all public funds deposited therein, not paid to the person entitled to receive same on demand. The constitutionality of the act in question has been before the court frequently, and the court is committed to the doctrine that the State has reserved its power in the Constitution to alter the charter of a corporation, limited only by the inhibition that “no injustice be done the cor-porators.” Leep v. Railway Co., 58 Ark. 407; St. L., I. M. & S. Ry. Co. v. Paul, 64 Ark. 83; Ozan Lumber Co. v. Biddie, 87 Ark. 587; Arkansas Stave Co. v. State, 94 Ark. 27; Davis v. Moore, 130 Ark. 128. The reservation of this power and the only limitation, imposed may be found in article 12, section 6, of the Constitution of 1874, which reads as follows: “Corporations may be formed under general laws, which laws may be from time to time altered or repealed. The General Assembly shall have the power to alter, revoke or annul any charter of any incorporation now existing and revocable at the adoption of this Constitution, or any that may hereafter be created, whenever in their opinion it may be injurious to the citizens of this State, in such a manner, however, that no injustice may be done to the corporators.” Every objection urged by appellants against the constitutionality of the acts finds an answer in the fact that a corporation accepts its charter powers subject to the reserved right in the State to alter or revoke the charter whenever, in the opinion of the General Assembly, such revocation or alteration is for the protection of the citizens of the State, if done in such a manner that no injustice may be done to the corporators. Before an act revoking or changing the charter of a corporation can be declared unconstitutional, it must appear that the effect of the act is confiscatory of the stock or property of the corporation. In discussing a statute which imposed additional liabilities upon stockholders and directly upon the question as to whether injustice had been done to the corporators by the passage of the statute, this court said, in Davis v. Moore, 130 Ark. 128: .“The statute, as we have already seen, does not impose an absolute liability on the shareholder of stock, nor does it compel the corporation or its stockholders to accept the provisions of the statute. It does not operate in any sense as a confiscation of the shares of stock, for the corporation may be wound up, and in that way the property interest of the stockholders preserved, or an individual stockholder may sell his stock if he objects to the corporation continuing’ business under the new terms prescribed. It can not be assumed that the new terms prescribed by the statute operate as an impairment or depreciation of the value of the stock, and that an objecting stockholder would be unable to dispose of his shares of stock at full value.” The appellants assail the statute before us on the further ground that no provision is contained in it for an acceptance of the change or alteration in the charter by the corporation or its stockholders. This can make no difference, because, as said before, it accepted its original charter on condition that the State reserved the power to revoke or alter it, if the revocation or alteration did not have the effect of confiscating its property. An acceptance of the altered charter was clearly made by continuation in business after the change was made.. The statute in question is not void as infringing upon either the Constitution of the State or of the United States. Noble State Bank v. Haskel, 219 U. S. 104; Assaria State Bank v. Dolly, 219 U. S. 121; Rampo Water Go. v. New York, 236 U. S. 579. In the last case cited, the Supreme Court of the United States said: “Where the charter of a corporation granted by the State Legislature, or the Constitution or the law of a State in force when such charter is granted, reserves to the Legislature the power to alter, amend or withdraw any franchise or privilege granted by such charter, this reservation qualifies the grant, and the subsequent exercise of the reserved power is not within the prohibition of the Federal Constitution as an act impairing the obligation of a contract. ’ ’

Appellants’ second insistence for reversal, that sections 2832 and 2835 of Crawford & Moses’ Digest were repealed by the banking 'act of 1913, is not sound. There is no express repeal of sections 2832 and 2835 of Crawford & Moses’ Digest in the general banking act, and repeals by implication will not arise unless there is an irreconcilable repugnancy between the later and older statutes. Sections 2832 and 2835 of Crawford & Moses’ Digest make the stockholders of a hank liable for public funds deposited in the bank, if the hank fails to pay the funds to the person entitled to receive same upon demand. The hanking act of 1913 does not deal with that particular subject. While the hanking act is a general affirmative statute, it could only repeal prior statutes of a general affirmative nature dealing with the same subject, and would not have the effect of repealing a prior act dealing with the particular subject. Martels v. Wyss, 123 Ark. 184; Ward v. Wilson, 127 Ark. 266; State v. Adams, 142 Ark. 411; Bartlett v. Willis, 147 Ark. 374.

The third insistence of appellant for reversal, to the effect that appellants are not liable because the collector did not deposit each specific fund in separate accounts in the hank, is not well taken, because the statute in question does not impose any such duty upon the collector.

That part of the fourth or last insistence of appellant for reversal, to the effect that the court erred in permitting a recovery for the amount of the drainage funds of $4,139.23, is sound. The act upon which a recovery is sought specifically defines the public funds for which stockholders become liable when deposited in the bank, when not paid to the party entitled thereto upon demand. It is only money of the United States, State, county, city, town or school warrants or bonds or other paper having a money value which are the property of the State or of the county, city, incorporated town or school district, deposited in banks, which can be recovered from the stockholders of the bank in case not paid by the bank to the party entitled thereto upon demand. The language of section 2835 of Crawford & Moses’ Digest is specific in defining public funds, and does not include public funds belonging to drainage districts. If the statute permitted the recovery of all public funds deposited in a bank from the stockholders when not paid by the bank upon demand of the party entitled thereto, then public funds belonging to a drainage district would necessarily be included, but the public funds defined in the act are confined to those belonging to the State, comity, city, incorporated town or school district. The act is as follows:

“For the purpose of this act ‘public funds’ shall be construed to mean all lawful money of the United States; and all State, county, city, town or school warrants or bonds, or other paper having a money value, belonging to the State, or to any county, city, incorporated town or school district therein.’’’

We can not agree, however, with the insistence of appellant that the voluntary payment of money to the collector in the sum of $2,000 for the Blytheville Special School District is not a public fund, as defined by section 2835 of Crawford & Moses’ Digest. It became a part of the school fund as completely by voluntary payment as if the payment had been involuntary. It was property passing through the hands of the collector of a public nature, belonging to said school fund. We think it comes clearly within public funds, defined by said statute.

The judgment is affirmed except as to the item of $4,139.23, and, as to that item, it is reversed and dismissed as against the stockholders.