author: Hart, C. J.

text:
    Collier v. State.
    Opinion delivered June 22, 1931.

      Cotton & Murray, for appellant.

      Hal L. Nonfood, Attorney General, and Robert F. Smith, Assistant, for appellee.
   Hart, C. J.

M. W. Collier prosecutes this appeal to reverse a judgment of conviction under § 743 of Crawford & Moses’ Digest prohibiting overdrafts. The statute reads as follows:

“It shall hereafter be unlawful for any individual, corporation or association of individuals, resident or doing business in this State, to make or give check or draft on any account in any bank or. trust company or on any person, firm or corporation, on which the said individual, corporation or association of individuals, shall not have full authority to check or draw such draft or check, or, having such authority, to make any check or draft upon an account in any bank, savings bank or trust company, when there shall not be sufficient funds therein to cover the same, unless they shall have made prior arrangements with said bank, savings bank, or trust company for said cheek or overdraft; provided, however, that if any individual, corporation or association of individuals, shall, when notified of such draft or cheek, immediately make a deposit to cover the same, they shall not be subject to the provisions of this act; provided further, that checks or drafts given where said individual, corporation' or association of individuals, have had no cheeking account in said bank shall not come under the provisions of this act.”

The first assignment of error is that the judgment must be reversed because the court erred in not sustaining a demurrer to the indictment on the ground that the indictment was fatally defective because it did not contain an averment that the defendant was notified that the check had not been paid. The rule in this State is that, when an exception contained in a statute defines an offense and constitutes a part thereof, an indictment for such crime must negative the exception; but when the statute contains a proviso exempting a class therein referred to from the operation of the statute, the indictment need not negative the proviso. The reason is that it is a general rule of evidence that where the negative of an issue does not permit direct proof, or where the facts come more immediately within the knowledge of the defendant, the burden of proof rests upon him. Cleary v. State, 56 Ark. 124, 19 S. W. 668; Richardson v. State, 77 Ark. 321, 91 S. W. 758; Starr v. State, 165 Ark. 511, 265 S. W. 54; Thomas v. State, 181 Ark. 316, 25 S. W., (2d) 424. See also Acts of 1929, vol. 2, page 1309, for the present law. The exception in the present ease being contained in a proviso, and not in the enacting clause of the statute, it was unnecessary to negative the exception in the indictment. Facts bringing the defendant within the exception of the statute are matters of defense which he must prove. Therefore we are of the opinion that the court properly held the indictment to be a valid one.

The next assignment of error is that the evidence was not legally sufficient to sustain the verdict. According to the testimony of Sid Martin, about the 9th day of January, 1925, he sold some cattle to M. W. Collier, and the latter gave him a cheek on the Bank of Hollister at Hollister, Missouri, for $310. The check was given and the transaction occurred in 'Baxter County, Arkansas. Martin indorsed the check and deposited it with his local bank in Arkansas for collection. In due course, the check was received by the Bank of Hollister and was duly protested by if because M. W. Collier had no funds with which to pay it. As soon as Martin received notice of protest, he went in person to the bank and presented the check to it for payment. He was informed by the bank officers .that Collier did not have any money there. Martin then went to the home of Collier and was told by his wife that he was not there. Upon making further inquiry, he was informed that Collier had left the country. Martin did not see Collier any more for more than two years. Collier told him that he knew the check had not been paid, and promised to pay it. Collier claimed that the bank had violated its agreement with him. Collier gave other checks for cattle which he purchased in Baxter County, Arkansas, and they were also turned down.

It is earnestly insisted that this evidence did not warrant a conviction because it does not affirmatively show that Collier was notified that the draft was not paid by the bank upon presentation so that he might make a deposit to cover same. As we have already seen, it was unnecessary for the State to negative the exception in the indictment and proof. AYhen the State made a prima facie case by proving that the check was given by the defendant and was not paid by the bank upon which it was drawn, the burden was then on the defendant to show that no notice was given him, so that he might have immediately made a deposit to cover it.

Besides this, the testimony of Martin, inferentially at least, shows that Collier knew that the check had not been paid and would not be paid. After Martin received notice of the protest of the check, in due course of mail, he went to the home of the defendant to inquire about the matter and found that the defendant had left the country immediately after giving the check. He did not return until two or three years thereafter. Considering all the facts and circumstances proved in the case, we cannot say that the jury was not warranted in returning a verdict of guilty against the defendant. Therefore the judgment will be affirmed.


source: Caselaw Access Project

author: Hart, C. J.,

license: Public Domain

text:
    Riverside Land Company v. Big Rock Stone & Material Company.
    Opinion delivered June 22, 1931.

      Frauenthal, Sherrill & Johnson and Bonham ■& F-ulh, for appellant.

      Rose, IT emingivag, Cantrell Loughborough, for appellee.
   Hart, C. J.,

(after stating the facts). Counsel for appellant seek a reversal of the decree under the common-law rule adhered to hv this court that a tenant under a lease for a term of years by holding* over at the end of the term without any new agreement, and paying rent according to the terms of the lease, which has been accepted by the lessor, becomes a,tenant from year to year. Belding v. Texas Produce Co., 61 Ark. 377, 33 S. W. 421; Lamew v. Townsend, 147 Ark. 282, 227 S. W. 593; and Jonesboro Trust Co. v. Harbough, 155 Ark. 416, 244 S. W. 455.

We do not think the principle of law announced in these cases has any application under the terms of the lease under consideration. In these cases the leases were for a fixed term, and contained no provision looking to their renewal or the extension of their term. Here the parties provided for the continuance of the lease upon the compliance with certain conditions prescribed therein. This distinction is expressly recognized in Lamew v. Townsend, supra.

This court has also recognized that there is a difference between a stipulation for the renewal of a lease and one for its extension. The reason is that where a renewal is provided for, a new lease should be executed or at least the lessee should do everything required of him to procure the execution of a new one so that the failure of the lessor to execute a new lease would work an estoppel against him. In the case of an extension clause, the execution of a new lease is not necessary, and the parties continue under the provisions of the original lease by complying with the extension agreement. Neal v. Harris, 140 Ark. 619, 216 S. W. 6; and Keith v. McGregor, 163 Ark. 203, 259 S. W. 725. Other cases recognizing and upholding this principle by this court might be cited, but the question is so well-settled in this State that we deem it unnecessary to do so.

Counsel for both parties in this case have called our attention to numerous decisions of courts of last resort of other States upon the question, but for the same reason we do not deem it necessary to cite or review them. Most of them may be found under the ease notes to 29 L. R. A. (N. S.) 174, and 64 A. L. R. 316.

Where no notice of extension to be given by the lessee is provided for in the lease itself, the lessee, by retaining possession of the premises after the expiration of the terms of the lease, will be deemed to have elected to renew or extend it according to the terms of the lease. Hays v. Goldman, 71 Ark. 251, 72 S. W. 563.

Where a lease provides that the lessee shall have the privilege of renewing the lease or extending its provisions upon giving notice for a certain length of time before the termination of the lease, the giving of such notice constitutes a condition precedent, upon the nonperformance of which the right of renewal or extension of the lease may be forfeited. Bluthenthal v. Atkinson, 93 Ark. 252, 124 S. W. 510. That case also holds that, where the form of the notice is not prescribed in the lease, it may he given verbally. The court also expressly recognized in that case, although the giving of the notice was a condition precedent, it might be waived by the parties. The court held that under the facts of that particular case, however, there was no waiver.

In an extensive case note to 64 A. L. R. 316, it is said that the general rule is that where a lessee, having a privilege of extending' the lease, holds over, even without any notice to the lessor of his election to extend the lease for a further term, his holding over constitutes an election so to extend, and he is entitled as against the lessor to hold for a further term. Among the cases cited in support of the rule is Lamew v. Townsend, 147 Ark. 282, 227 S. W. 593. To the same effect see 16 R. C. L. 894.

In the case at bar, the lease prescribed as a condition precedent to the exercise of the right by the lessee to extend the lease the giving of notice in writing within a specified time before the expiration of the first term of the lease, and such condition must be complied with or it must be waived by the lessor. There is no contention in the present case that this condition was complied with; but it is strongly insisted that the compliance with such condition was waived by the lessor. Other cases holding that provisions of this sort with regard to the giving notice for the extension of the lease may be waived by the parties are the following: Kramer v. Cook, 7 Gray (Mass.) 550; Long v. Stafford, 103 N. Y. 274, 8 N. E. 522; and Probst v. Rochester Steam Laundry Co., (New York) 64 N. E. 504.

It is plain from reading the case of Bluthenthal v. Atkinson, 93 Ark. 252, 124 S. W. 510, that where the lease provides that the tenant must give notice of his intention to renew or extend the lease, a failure to give such notice within the required time will justify the landlord, in treating the lease as not extended or renewed. It is equally plain from the opinion in that case that the lessor may waive such notice, and that he will be treated as having done- so where the facts warrant it.

Bearing in mind these settled principles of law, we now come to the question whether the chancery court was justified in finding under the facts that the written notice for an extension of the lease was waived by the parties. Under the provisions of the lease, the parties contemplated that the term of ten years provided in the lease might be extended by repeated exercise of the power given by the lease until the whole term amounted to ninety years. It is true that no notice in writing was given by the lessee under the terms of the lease before the expiration of the first term. It is equally certain that the parties contemplated an extension of the lease.

The business to be carried on upon the leased premises was that of excavating sand from the bed of the Arkansas River, storing it in bins, and shipping it over the tracks of an adjacent railroad. The leased premises only contained áy2 acres of land. This was sufficient for the purpose. The sand is taken from the bed of the Arkansas River by extensive machinery erected for that purpose, stored in the bins on the leased premises, and then carried by switch tracks on the leased ground to the right-of-way of an adjacent railroad.

The original lessee was Mord Roberts, who, pursuant to a provision of the lease, assigned it to a corporation of which A. C. Butterworth was president. The latter gave as an excuse for not complying with the provisions of the lease as to notice that he thought from what Roberts had told him that the lease was for ninety years, and that the provision only related to the appraisal which fixed the rental value of the property. In any event his company continued the operation of the plant after the expiration of the first ten-year period' and continued to pay the rent under the terms of the original lease. This showed that the lessee expected to extend the lease under its terms; for he will be presumed to have known what the provisions of the lease were. On the other hand, the fact that the lessor accepted the rent knowing that the lease had a clause looking to an extension of its provisions under certain terms tended to show that it did not intend to assert its right of forfeiture but waived its right to declare the lease at an end.

This view is made manifest by the conduct of the parties. It seems that Butterworth had charge of the matter for appellee and Wright for appellant. Butter-worth approached Wright about the matter at a club house of which they both were members. They continued to negotiate about the extension of the lease generally with regard to the new rental for more than a year after they first took up the matter. Wright told Butterworth that his company had been offered a rental of $75 a month. During the latter part of 1921, Butterworth accepted this proposal for the new rent for the balance of the second ten-year period. Thereafter, he continued to pay rent in that amount, and appellant continued to accept it for the balance of the second ten-year period. The question of the lease being terminated at the end of the first ten-year period did not come up again until appellee gave the notice for a second extension near the end of the second ten-year period. This of itself showed that the parties considered that the lease had been extended ¡by fixing a new monthly rental contract to begin in January, 1922. It will be remembered that the lease expressly provided for an extension of the term for successive ten-year periods until the full term of ninety years was reached by giving the written notice and appointing appraisers to fix the rental_ value for the new extension period.

Butterworth testified that Wright agreed to an extension of the lease at a monthly rental of $75 per month in advance beginning from the first day of January, 1922. Wright also testified that he thought this new rental was for an extended time of the lease. He was asked the specific question if it was for the remaining period or the next ten-year term, and replied, “Yes.” It is true that the two remaining directors of appellant company testified that they considered that the lease had expired at the end of the first ten-year period when the lessee failed to give the written notice, but it does not appear that they ever acted upon this conclusion or notified the lessee that such construction would be put into effect. They admitted that Wright had authority to act for the lessor and that he did do so. It was plain from the testimony of Wright that appellant did not intend to declare the lease forfeited because of the failure of the lessee to give the required notice, but that it intended to waive the giving of such notice and actually did so by agreeing to the. advancement and accepting it for the balance of the second ten-year period.

Butterworth testified that, relying upon this, appellee after the beginning of ilie year 1922 made improvements upon the leased premises of the estimated value of $40,000, which it would not have done had it understood that it was continuing under a month to month or year to year rental. It is true that the main value of the improvements was machinery which appellee had a right to remove when its lease expired, but a considerable amount of it was expended in erecting bins and other buildings which would nec essarily have to be left on the leased premise. Then too, according to the testimony of Butterworth, which is not attempted to be disputed, the machinery would not be of much value as second-hand machinery. It could only be used in the operation of plants of this sort, and the situation of the ground at that point with relation to the Arkansas River and to an adjacent railroad made it valuable for the purpose for which it was used. Another site equally favorable for the purpose would have to be secured before the machinery could be used by appellee. In any event, according to the testimony of Butterworth, which was not attempted to be disputed, improvements of the estimated value of $40,000, would be practically lost to appellee if the lease should be construed to be terminated at the end of the first ten-year period. Appellant under the circumstances must have known that these improvements • were contemplated, and that they were actually made by appellee after the advanced rental was fixed upon, and appellee commenced to pay it in advance upon the first day of each month.

When we consider that the lease itself contemplated successive extensions of the ten-year period upon the fixing* of a new rental at the end of each period, and, that the amount of that new rental was fixed in pursuance of the terms of the lease, we are of the opinion that these facts, considered in connection with the surrounding circumstances, warranted the chancellor in finding that the notice in writing required to he given was waived by the lessor. Therefore, the decree will he affirmed.


author: Smith, J.

text:
    Chicago, Rock Island & Pacific Railway Company v. Jenkins.
    Opinion delivered June 22, 1931.

      Thos. S. Buzbee and Geo. B. Pugh, for appellant.

      Hags é Smallwood, for appellee.
   Smith, J.

Omer Jenkins drove an automobile, in which his wife was also riding, up the incline of a crossing’ over defendant railway company’s track, and just as he drove across the track and started down the opposite side of the crossing’ he met a truck owned by L. A. Lemons but' driven by an employee, and, to avoid the impending’ collision, he turned his automobile to the right and drove over to the extreme edge of the crossing. As he did this some of the earth of the crossing gave way, and the automobile turned over and fell some eight or ten feet into a borrow pit. Both Jenkins and his Avife were pinned under the car for a few minutes before it was lifted off of them, and Jenkins breathed or gasped a few times after being taken out from under the car, and then died.

Mrs. Jenkins qualified as administratrix, and brought this suit “in behalf of the estate of said deceased and also for herself as the widoAv and the next of kin of said deceased,” and for her cause of action she alleged the facts stated above.

The suit was brought against both the owner of the truck and the railway company, it being alleged that the concurring negligence of the truck driver and that of the railway company had caused her intestate’s death. The alleg’ed negligence on the part of the railway company was the defective condition of the crossing, and there was testimony legally sufficient to support the finding that the railway company was negligent in this respect, and that this negligence Avas a contributing, if not the sole, cause of the injury.

The cause was submitted under instructions which authorized a verdict against either the owner of the truck or the railway company, of both, accordingly as the jury found whether one or the other, or both, Avere negligent. There was a verdict in favor of the owner of the truck, but against the railway company, which assessed the damages at $8,000, and from the judgment pronounced thereon is this appeal.

The case made was largely dependent on the testimony of Mrs. Jenkins, the widow of the intestate and his administratrix, and objection was made to her testimony upon the ground that she was disqualified under § 4144, Crawford & Moses’ Digest (schedule, § 2, Constitution 1874), which provides that: “In actions by or against executors, administrators or guardians, in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other as to any transactions with or statements of the testator, intestate or ward, unless called to testify thereto by the opposite party.”

It may be first said that objection was made by the defendant railway company to the submission of the question whether the deceased had endured conscious pain and suffering before his death, upon the ground that the undisputed testimony showed that the deceased had been rendered unconscious, and that he did not regain consciousness during the few minutes intervening between his injury and his death.

Upon this question the jury was told to make a separate finding, if any compensation was allowed on that account, but to make no finding on that account unless compensation was allowed for pain and suffering. The following verdict was returned: “We, the jury, find for the defendant, Lemons,” (the owner of the truck), “and we find for the plaintiff, Mrs. Jenkins and heirs against C. R. I. & P. Railroad in the sum of ($8,000) eight thousand dollars.” Under this verdict returned under the instructions referred to above, it conclusively appears that no compensation was allowed for pain and suffering, and that the verdict returned was for the exclusive benefit of the widow and heirs.

Upon this state of the record, it becomes unnecessary to determine whether the evidence of Mrs. Jenkins as to the cause of her husband’s death related to transactions with or statements of her husband within the meaning of § 4144, Crawford & Moses’ Digest, above quoted; or, whether, if they were such statements or transactions, she was an administratrix within the meaning of the statute, or a mere trustee for the widow and next of kin, suing in the nominal capacity of administratrix. St. Louis & San Francisco R. Co. v. Fithian, 106 Ark. 491, 504, 153 S. W. 600; St. Louis & San Francisco R. Co. v. Conarty, 106 Ark. 421-430, 155 S. W. 93; Adams v. Shell, 182 Ark. 959, 33 S. W. (2d) 1107.

The administratrix was the widow, and, as such, she had a cause of action, in support of which she had the right to testify, and she had the right also to testify in support of the cause of action of the next of kin, who, in this case, were the children of herself and her husband, her intestate. Had the suit been brought only for the benefit of herself as widow and for her children as next of kin under'§ 1075, Crawford & Moses’ Digest, as it might have been, no question would have arisen as to her right to testify. She sued, however, for the benefit of the estate also, and sought to recover in that behalf to compensate the pain and suffering, and an indefinite number of cases have held that the separate causes of action may be joined in a single suit. Indeed, the practice is to so join them, but, as we have said, there was no recovery for pain and suffering, and it therefore becomes unimportant to determine whether her testimony was competent or not, for, if incompetent, it was not prejudicial, for the reason that a recovery was had only upon the cause of action in support of which her testimony was competent.

Objection was made to instruction numbered 7 given at the réquest of plaintiff, which reads as follows:

“7. The court further instructs you that when two concurring causes produce an injury which would not have resulted in the absence of either, the party responsible for either cause is liable for the consequent injury. So, in this case, if you find from the evidence that the defendants, L. A. Lemons and the Chicago, Rock Island & Pacific Railway Company, were guilty of some act of negligence which concurred in producing the injury and death of plaintiff’s intestate, which injury and death would not have occurred in the absence of either concurring act of negligence, then the party responsible for either act of negligence is liable for the consequent injury and death of plaintiff’s intestate, and plaintiff would be entitled to recover against either or both of them. ’ ’

The objection to this instruction is that the jury was left to roam at will without reference to the allegations of negligence contained in the complaint, and the instruction authorized the jury to find for the plaintiff without finding the defendants guilty of the negligence alleged in the complaint.

The instruction does appear to be subject to this objection, but it may be first said that only a general objec tion was made to the instruction in the court below. It may be further said that the instruction was not in conflict with any other instruction given, and it must therefore be read and interpreted in connection with the other instructions in the case. The first of these specifically recites the negligence alleged against the railway company, and in the sixth instruction, which immediately preceded the instruction set out above, the jury were told that they must find that the railway company was guilty of some act of negligence alleged in plaintiff’s complaint, which was the proximate cause of the injury, before returning a verdict against the railway company. So that, when the instructions are read together, as they must be, if affirmatively appears that the jury were confined, in its deliberations and findings, to the matters alleged in the complaint.

An objection was made to instruction numbered 9, given at the request of the plaintiff, which reads as follows:

“If you find from the evidence that plaintiff is entitled to recover as the widow and next of kin for the loss of her intestate, you will take into consideration the earning power of the deceased, his expectancy of life, and the amount which he might have contributed to his family, and, taking* all these facts into consideration, you will award to said widow and next of kin such sums as you may believe from the evidence will fairly compensate them for the pecuniary loss of their husband and father. ’ ’

This instruction is alleged io be erroneous, in assuming that the widow was suing “as the widow and next of kin.” But this objection is not well taken, as we have quoted the allegation of the complaint that she had brought the suit in that behalf.

It is also insisted that the instruction is erroneous in not limiting the recovery to the loss of contributions from deceased’s earnings, as the estate still has the returns from his property. We doubt if the instruction is fairly open to that objection, as the jury was told “to take into consideration the earning power of the deceased,” and no request was made to make it more specific in the respect to which objection is now made, and the jury was told to return a verdict for such sum “as you may believe from the evidence will fairly compensate them for the pecuniary loss of their husband and father.” In the absence of a specific objection we hold this instruction to be a correct declaration of the law.

It is finally insisted that the verdict is excessive. Upon this question it may be said, that the testimony shows that the deceased was survived by his widow and eight children, the eldest being a son, who was twenty-one years old but a helpless cripple, unable to earn a livelihood and dependent upon his father, who supported him, and the youngest child was only six years old. All these children lived with and were supported by the deceased, who had a life expectancy of 18.07 years. Deceased owned a small farm, which he cultivated with the aid of various members of his family. He supplied his family “plenty to eat, and plenty to wear,” as the widow expressed it, and she also testified that the deceased’s earning capacity was from a thousand to twelve hundred dollars per year. This testimony is sufficient to support the verdict returned.

Upon a consideration of the whole case, we find no reversible error, and the .judgment must therefore be affirmed, and it is so ordered.


author: Mehaffy, J.

text:
    Cox v. State.
    Opinion delivered June 22, 1931.

      Hal L. Norwood, Attorney G-eneral, and Pat Mehaffly, Assistant, for appellee.
   Mehaffy, J.

The appellant was indicted, tried, and convicted of the crimes of burglary and grand larceny in Searcy County, Arkansas. The indictment charged that the offense was committed January 1, 1931. He was in-dieted on the 10th day of February, 1931, and the case was called for trial on the 12th day of February, 1931. When the case was called for trial, the appellant filed a motion for a continuance until the next regular term of court, or that the case be postponed until 30 days after March l'2th. He alleged as a cause for continuance “that W. U. McCabe, a member of the Arkansas Legislature now in session, which will be adjourned March 12, 1931, as representative from 'Baxter County, Arkansas, is his attorney and now in attendance in said Legislature, and is employed by defendant to represent him, and he has no other attorney, and under the law cannot be required to attend this court.”

The court overruled appellant’s motion for a continuance, to which ruling of the court the appellant objected and excepted. The court then asked the appellant if he desired any attorney be appointed by the court to defend him, and he answered that he did not and refused to make any further plea, and the court entered a plea of not guilty for him, and a jury was impaneled and the trial was had, resulting in the conviction of the appellant.

A motion for a new trial was filed in which it was alleged, first, that the verdict of the jury and the judgment of the court was contrary to law; second, that the court erred in overruling the motion for continuance; third, that, after the court overruled his motion for continuance, he refused to enter any plea to the said charge, and refused to ask for counsel as he was standing upon his rights under the motion for continuance. It was also alleged that the prosecuting attorney committed prejudicial error in his argument. The case is here on appeal.

The Legislature in 1931 passed an act amending § 430 of Crawford & Moses’ Digest to read as follows: “ ‘Section 430. That any and all proceedings in suits pending in any of the courts of this State in which any attorney for either party to any suit is a member of the Senate or of the House of Representatives, or is a clerk or sergeant-at-arms or a doorkeeper of either branch of the General Assembly, and any and all proceedings in suits pending in any of the courts of this State in which any member of the Legislature or clerk or sergeant-at-arms or doorkeeper of either branch of the General Assembly is a party, shall be stayed for fifteen days preceding the convening of the General Assembly and for thirty days after adjournment thereof.’

“Section 2. Whereas, many courts of the State will convene during the present session of the General Assembly, and whereas it is more important that members of the Legislature shall attend to their public duties rather than to their private affairs, and this act being necessary for the immediate preservation of the public peace, health and safety, an emergency is declared, and this act shall take effect and be in force from and after its passage.”

This act became a law on the second day of February, 1931. The Legislature convened on the 12th day of January, ] 931.

The indictment charges that the offense was committed on the 1st day of January, 1931, but the proof shows that the burglary and larceny were committed on the night of the 19th of January, or possibly the morning of the 20th of January. It therefore clearly appears that the crime charged was committed some days after the meeting of the Legislature.

The indictment against appellant was returned on the 10th day of February, practically a month after the Legislature had convened, and the trial was set for the 12th of February, at which time the appellant filed his motion for continuance, alleging that he had employed W. U. McCabe, who, as representative of Baxter County, was attending the session of the Legislature in Little Bock. The indictment and trial was in Searcy County, Arkansas, at Marshall, quite a distance from Mountain Home, in Baxter County, the home of Mr. McCabe.

There is no indication in the record as to when he employed Mr. McCabe, but it was probably not earlier than the 10th of February, when the indictment was returned. and certainly could not have been earlier than the '20th day of January, at least eight days after the meeting of the Legislature, because the crime was not committed until the 20th. No communication was had from Mr. McCabe, and no claim was made that Mr. Mc-Cabe was his regular attorney, or had ever been his attorney until this time.

At common law applications for continuance were addressed to the sound discretion of the court, but, under the statute above quoted it is mandatory upon the court to grant a continuance when it is made to appear to the court by proper showing that the defendant had employed his attorney prior to the convening of the Legislature and at the time set for trial his attorney was in attendance upon a session of the Legislature; but in this case the crime was not committed until several days after the meeting of the Legislature, and, while the law provides that all proceedings pending in the courts of this State in which an attorney for either party to any suit is a member of the Senate or the House of Representatives shall be stayed for 15 days preceding the convening of the General Assembly and for 30 days after the adjournment thereof, this means attorneys employed before the meeting of the Legislature.

The very language of the act that the proceeding shall be stayed for 15 days preceding the convening of the General Assembly shows that the Legislature meant attorneys for parties who had been employed prior to the meeting’ of the Legislature. The Legislature evidently did not intend that a person charged with crime in anv of the courts of the State could secure a continuance of his case by employing somebody who was a member and already in attendance upon a session of the Legislature. Johnson v. State, 283 Pac. 590; People v. Goldenson, 19 Pac. 161; Holloway v. State, 255 Pac. 1022; Otey v. State, 263 Pac. 155; Burkhart v. State, Tex. Cr. App., 26 S. W. (2d) 238.

There is some conflict in the authorities on the question here involved, and the statutes are not in all respects alike: some courts say that these statutes are passed to induce attorneys to become members of the Legislature, but the reason for the enactment of the law here involved is stated in the law itself, and it applies not only to attorneys who are members of the Legislature, but to clerks, sergeants-at-arms, or doorkeepers of either branch of the General Assembly, and the reason given by the Legislature in § 2 of the act is that it is more important that the members of the Legislature shall attend to their public duties rather than to their private affairs. It is a privilege granted to the attorneys who are members of the Legislature.

In this case-. Mr. McCabe, who was a member of the Legislature, made no request for a continuance, and did not communicate with the court in any way. While it is a privilege of an attorney who is a member of the Legislature, a party to a suit had the right to a continuance, either where he has employed an attorney prior to the meeting of the Legislature, and who is at the time attending a session of the Legislature; or, if one’s regular attorney is a member of the Legislature, and a suit should arise, the party would have a right to a continuance on account of his attorney being in attendance upon the Legislature; but where a person is indicted after the meeting of the Legislature, charged with the commission of a crime at a time after the meeting of the Legislature, he cannot, by merely employing an attorney who is a member of the Legislature, have his case continued, ■without any showing as to when the employment was made or that the member of the Legislature is his regular retained attorney. If this was the meaning of the statute, all any person charged with crime in any of the courts would have to do to get a continuance would be to file a motion alleging that he had employed a member of the Legislature to try his suit. One cannot secure a continuance in a case that arises after the meeting of the Legislature by. employing a member of the Legislature as his attorney. It has been the practice of the courts throughout the State to accommodate attorneys who are members of the Legislature by postponing the trial of their cases or setting their cases at a time when it will be convenient to try them.

We have not set out the evidence, but have given it careful consideration and find that it is ample to sustain the verdict.

One of the grounds for motion for new trial was that the prosecuting attorney had made an argument that was prejudicial, but no objection was made to this argument at the time it was made, and the appellant cannot raise the question for the first time in his motion for new trial.

The .judgment of the circuit court is affirmed.


text:
    Board of Commissioners of Red River Bridge District v. Wood.

      Shaver, Shaver & Williams and Jones $ Jones, for appellant.

      Henry Moore, Jr., for appellee.
   Mehaffy, J.

The Legislature, at its session in 1917, passed an act to create the Bed Biver Bridge District. The act fixed the boundary of said district, and it was organized for the purpose of constructing and maintaining a free public bridge across the Bed Biver at some point within the limits of the district. The act provided that the commissioners might grant a right-of-way over said bridge to any public utility provided that the concession granted to public utilities should not interfere essentially with the use of such bridge as a public highway.

The act provided for the appointment of assessors, and that said assessors should proceed to assess the value of the benefits accruing to each piece of real property within the district, etc., and provided that they must adjust the burden of assessment to the benefits that would accrue to the property. The act also provided that the commissioners might issue bonds for an amount not to exceed the estimated cost of the work, which bonds should bear a rate of interest not exceeding 6 per cent, and should not be sold for less than par, unless by unanimous vote of the board. To secure the payment of said bonds, the board was authorized to pledge and mortgage its assessment of benefits. It was also provided in the act that the assessment should be a charge and a lien against all real estate in the said district from the date of the resolution adopted by the board of commissioners, and should be entitled to jireference over all judgments, executions, incumbrances, or other liens whatsoever, and shall continue until such assessments with any penalties and costs shall be paid.

It was further provided that all bonds issued by the commissioners under the terms of the act shall be secured by lien on all property subject to taxation, and that the making of said assessments, levy and collection, might be enforced by mandamus.

In 1920 the Legislature amended act 16 of the Acts of 1917, stating that the district was organized for the purpose of constructing and maintaining a toll bridge across Red River at some point within the limits of the district. Said act authorized the commissioners to charge tolls and to grant a right-of-way over said bridge to public utilities. The commissioners were authorized to establish and fix rates of toll not exceeding the rates named in the act, and it was expressly provided that all tolls collected shall be for the benefit of the district. The commissioners were required to keep or cause to be kept accurate records of all tolls collected and account therefor in the same manner they are now required bjr law to account for other funds received by said district from any other source.

The bridge was built across Red River at, or near, Index, in the counties of Miller and Little River, and taxes or assessments, as provided for in the original act, were collected during the years 1917-1924, inclusive, and the assessments so collected were used in paying on bonds issued to build said bridge, and interest.

Since the year 1925, no assessments have been collected under the assessment of benefits levied, but funds have been received from tolls collected, and said funds have been used in paying the expenses of the bridge in retiring the bonds and paying interest. There has been accumulated from said tolls, and is now on hand with the treasurer of the bridge district, approximately $170,000.

During the years 1917-1924.-, inclusive, approximately $112,000 of assessments were collected on lands in Miller County, and $37,000 on lands in Little Biver County.

The Legislature in 1931 passed an act authorizing and directing the board of commissioners of the Bed Biver Bridge District to repay all persons the taxes or assessments paid by them on lands situated within the improvement district. The payments were to be made to persons who paid the assessments. The preamble of the act passed in 1931, among other things, stated that assessments were levied and collected for several years, and that since the year 1921 tolls have been collected for traffic across the bridge, and that for the last few years it had not been necessary to collect taxes against lands within the district for the reason that the tolls collected paid all maturing bonds, interest and expenses, and in addition thereto has accumulated a large sum of money in the hands of the commissioners of the district, and that it was found advisable to use such toll funds as may be necessary to repay those who paid taxes or assessments.

Section 4 of the act of 1931 provided: “By reason of the depression that exists in said counties and the great need of funds on the part of property owners to pay taxes, and for other purposes, and in order to preserve the public peace, health and safety, an emergency is hereby declared to exist, and this act shall take effect and be in full force from and after its passage.”

This action was begun by appellees in the Miller Chancery Court for an injunction restraining appellants from issuing vouchers or paying any funds belonging to the bridge district to any taxpayers as a refund for taxes paid on assessments of benefits levied against the lands and real estate in said district.

The complaint alleged the formation of the district under the act of 1917, and that said act was amended as above set forth, in 19'20, and that there had been accumulated from tolls approximately $170,000. It was alleged that the plaintiffs were citizens and taxpayers of Little River County and Miller County, and as such citizens and taxpayers, paid taxes during the years from 1917-1924, inclusive, on the assessment of benefits against their lands within-said district to build the bridge, and they further alleged that they bring this suit on behalf of themselves and in a representative capacity on behalf of all other citizens and taxpayers in the Red River district, and that the number of such citizens and taxpayers represented by the plaintiffs were several thousand persons.

It was alleged that the act of 1931 is a local or special act, and is contrary to the amendment to the Constitution, that the act is unconstitutional, illegal and void; that the defendants were preparing to receive and pay claims under the act of 1931; that the plaintiffs are interested in having said bridge become a free bridge at the earliest possible time, and they are entitled to have the funds of said bridge district used for the purpose for which they have been collected.

It was also alleged that they had no adequate remedy at law.

The appellants filed a demurrer and answer, the demurrer alleging: (1), that the court had no jurisdiction of the subject of the action; (2), that the plaintiffs have not legal capacity to sue, and have not legal capacity to bring and maintain this action; (3), that the complaint does not state facts sufficient to constitute a cause of action; (4), that the complaint does not state facts sufficient to entitle plaintiffs to the relief asked, and, (5), that the act of the Legislature mentioned is not a local or special act and is not in violation of the Constitution.

The answer filed expressly reserved all the rights under the demurrer and alleged that the building of the bridge at an approximate cost of $375,000, the assessment of benefits, the issuing of bonds, the amendment to the act of 1917 authorizing the collection of tolls and fixing the rates, that taxes were collected during 1917 to 1924, inclusive, amounting to approximately $170,000; that the commissioners had paid all obligations of'the district, including maturing bonds and accrued interest, as the same became due; had purchased $35,000 worth of unmatured bonds; that the bonds now outstanding and unpaid amount to $169,500, which mature in different amounts annually up to and including 1931; that the district now has on hand cash, deposited in banks, amounting to $175,-631.84; that the annual tolls collected have been $60,-739.60 in 1928, to $80,108.95 in 1930; and that it is the belief that they will average in the future as much as they have in the past years.

They alleged that all the bonds could be paid within the next three years, and, in addition to these things, alleged as a further reason for the passage of the act of 1931, successive crop failures; that the people were impoverished, unable to maintain themselves and plant their crops; and there was great depression in the counties of Miller and Little River, and great need of funds. The answer denied the allegations in the complaint as to there being citizens and as to there being several thousand people in the district.

It was further alleged that 85 per cent, of the taxpayers in Miller County, within -said district, are in favor of the refund of taxes as provided for in the act; that 90 per cent, of the tolls charged and collected come from automobiles and light trucks crossing the bridge, and that 75 per cent, of the tolls are paid by people who do not live in the district and contribute nothing to the building or payment of said bridge. It was admitted that they were preparing to receive and pay claims.

A demurrer was interposed to the answer setting up several grounds, but, as attention will be called to these grounds in the opinion, it is not necessary to set them out in full here. The court granted a restraining order as prayed, and the case is here on appeal.

This case, as stated by the appellants, involved the constitutionality of an act of the General Assembly passed at its 1931 session. That act provided for the repayment to persons who had paid assessments in the Bed River Bridge District in Miller and Little River counties and for nothing else. If this is a special or local law, it violates Amendment No. 12 of the Constitution, which reads as follows: “The General Assembly shall not pass any local or special act. This amendment shall not prohibit the repeal of local or special acts. ’ ’

This court has uniformly held that the Constitution of the State is not a grant but a limitation of power; and, unless the power of the Legislature is limited, either expressly or by necessary implication, its power is supreme.

A statute passed by the Legislature will always be upheld unless it is clearly prohibited by the Constitution. If it is doubtful whether the act comes within the limitation of the Constitution, the doubt will be resolved in favor of the constitutionality of the act. Cobb v. Parnell, ante p. 429; State v. Crowe, 130 Ark. 272, 197 S. W. 4; Bush v. Martineau, 174 Ark. 214, 295 S. W. 9.

Whether a statute is constitutional or not is a question of power, a question whether the Legislature, in this particular case, was within the constitutional limits and observed the constitutional conditions; in other words, the question in this case is whether the act of 1931 is prohibited by amendment No. 12 to the Constitution. We have nothing to do with the policy of the law, nor whether the power, if it existed, was exercised properly.

Courts must assume that legislative discretion has been properly exercised. State v. Crowe, 130 Ark. 272, 197 S. W. 4; McAdams v. Henley, 169 Ark. 97, 273 S. W. 355.

The act of the Legislature here involved is in no sense a general law. It involves only the tolls collected by the Bed Biver Bridge District and provided for the repayment of assessments to persons who had paid the assessments on lands within the improvement district.

The act of 1917 creating the Red River Bridge District is a special act, and no one contends otherwise. It provides merely for the creation of the bridge district, the assessment of benefits to pay for the bridge, and for the building of the bridge. The act of 1920, amending the act of 1917, is purely a local act, and it is not contended that either of these acts were general acts. Both of them were passed by the Legislature, however, before the adoption of the amendment No. 12, and at a time when the Constitution did not prohibit the passage of local or special acts.

A general law must relate to persons and things as a class, and must operate throughout the State upon the whole subject or class, and must not be restricted to any particular locality within the State, and, of course, if this is not a general law, it necessarily follows that it is a local or special law. Ark-Ash Lbr. Co. v. Pride & Fairley, 162 Ark. 241, 258 S. W. 235; McLaughlin v. Ford, 168 Ark. 1112, 273 S. W. 707; Farrelly Lake Levee Dist. v. Hudson, 169 Ark. 37, 273 S. W. 711; Webb v. Adams, 180 Ark. 716, 23 S. W. (2d) 617; Simpson v. Teftler, 176 Ark. 1106, 24 S. W. (2d) 330; Skelly Oil Co. v. Murphy, 180 Ark. 1023, 24 S. W. (2d) 314; Smalley v. Bushmaier, 181 Ark. 847, 28 S. W. (2d) 61.

The rule requiring courts to uphold the statute, if there is any doubt as to whether the power of the Legislature exists under the Constitution, does not authorize the court to read words into the statute even to save its constitutionality. If the statute does not violate the Constitution, or if there is any doubt about whether it does or not, it is the duty of the court to uphold the statute, but if there is no doubt about the statute being in conflict with the Constitution, then it is the duty of the court to uphold the Constitution and declare the act void, and it is only in cases where the language of the act will bear two constructions that the court is justified in adopting a construction that will sustain rather than one which will defeat it. 25 R. C. L. 1002.

The act involved here is plain and unambiguous. There is no way in which it can be construed by the court so as not to be in violation of the Constitution.

“If the words embody a definite meaning which involve no ambiguity, and there is no contradiction between different parts of the same writing, then the meaning apparent on the face of the instrument is the one which alone we are at liberty to say was intended to be conveyed. In such a case there is no room for construction. That which the words declare is the meaning of the instrument; and neither courts nor Legislatures have a right to add to or take away from that meaning.” Lybrand v. Wofford, 174 Ark. 303, 296 S. W. 729.

It is contended by appellants that the amendment to the Constitution does not prohibit the passage of all and every kind of special or local laws, and they call attention to the case of Webb v. Adams, 180 Ark. 713, 23 S. W. (2d) 617. This court in the above case held that the act there involved was a local or special act.

The Constitution does prohibit the passage of all and every kind of special or local laws that are special or local in a constitutional sense. The act involved here is clearly in violation of the amendment to the Constitution. The act under consideration does not apply to all toll bridges nor to all of a class, but is specifically limited in its application to the Red River Bridge District. To hold that an act of this kind might be passed by the Legislature would not be a construction of the constitutional provision, but it would be abrogating it or ignoring it. There is no escape from the conclusion that the act is in violation of Amendment No. 12 of the Constitution.

It is next contended that the repayment of these assessments is the discharge of a moral obligation, and does not come within the inhibition of the amendment. A complete answer to this contention is that the law creating the improvement district and authorizing the building of the bridge and assessment of benefits does not authorize the collection of any assessment of benefits from any person, except where the benefit to the land is equal to or greater than the amount of the assessment. In other words, it must appear that the property is benefited, and the assessment pays for that benefit, so that whoever pays an assessment must receive a benefit at least equal to the amount he pays. If he has received benefits for all that he paid, how can it be said that there is any moral obligation to repay?

But if there were a moral obligation on the bridge district to pay, this would not authorize or justify the passage of a local or special lawr in violation of the Consí ituti on? The Constitution does not prohibit local legislation, but amendment No. 5 expressly authorizes local legislation. What the Constitution does do, however, by express provision, is to prohibit the Legislature from passing any local or special act.

Therefore, if there was a moral obligation on the district to repay the assessments to the taxpayers, it could be done by a general law.

The act of 1931 does not deal with the sovereign administrative power of the State, but it is a local law dealing with the local affairs of the district.

It is contended that the power to tax is an attribute of sovereignty. This is true, but it does not follow, because the power to tax is an attribute of sovereignty, that the Legislature can pass a special act distributing taxes or assessments, or repay them to the taxpayers.

It is next contended by the appellants that the commissioners of the bridge district have authority to repay the taxes independently of the authority conferred upon them by the act of 1931. Whether this is true or not, it is not necessary to decide because it could not do so until it had paid all of its legal obligations. The act creating the district provides for the assessment and collection of taxes and provides that the district may issue bonds and pledge and mortgage the assessments of benefits. These

assessments, when collected, were for the purpose of paying the obligations of the district contracted under the authority of the act of 1917. The act of 1920, providing for the collection of tolls for the use of said bridge, expressly provides that all tolls collected should be for the benefit of the district, and it also required the commissioners to account for the tolls collected in the same manner that they were required to account for the assessments or other funds received by the district. If the tolls collected were insufficient for any reason, to discharge the obligations of the district created under authority of the act of 1917, assessment and collection of benefits would be required for the purpose of discharging- such obligations.

It is also contended bv the appellants that, if the act of 1931 is a special act, the Legislature had a right to pass it because it amends act 178 of the Acts of 1920. It is not and does not purport to be an amendment of that act. It is an independent act for the purpose of repaying assessments, and for no other purpose. The court has never held that the Legislature had authority to amend a special act. It has held that, since authority is given in the constitutional amendment to repeal a special act, it may repeal a part of a special act, but it did not hold that it had authority to amend a special act.

The appellants contend that the appellees are not toll payers, have suffered no special injury, and have no vested interest, and therefore have no right to maintain this suit. They are citizens and taxpayers in the district, and, if the money received from tolls was used for any purpose other than the payment of the indebtedness of the district, such indebtedness would have to be paid by assessments on their lands. They are therefore interested in having the money used for the purpose of paying the debts of the district and a right to maintain suit for that purpose.

The decree of the chancery court is affirmed.


author: Kirby, J.,

text:
    Stanley v. State.
    Opinion delivered June 22, 1931.

      Paul G. Matlock, for appellant.

      Eal L. Norwood, Attorney General, and Pat Mehaffy, Assistant, for appellee.
   Kirby, J.,

(after stating the facts). It is first urged that- the evidence is not legally sufficient to warrant the verdict of murder in the first degree,'and in any event that the court erred in not instructing the jury of the lesser punishment they could have inflicted if they found defendant guilty of murder in the first degree.

The testimony is set out at some length, and we are constrained to agree with the contention that it is not sufficient to warrant the verdict of murder in the first degree. There is no testimony indicating* any deliberate or premeditated intention to kill or to take the life of the deceased, or that, prior to the difficulty, appellant harbored any malice or ill will towards him. No threats of any kind are shown to have been made. No killing can be murder in the first degree in the absence of premeditation and deliberation. Section 2338, Crawford & Moses’ Digest; Harris v. State, 119 Ark. 85, 177 S. W. 421. In the case cited, the court, quoting from an earlier case, Bivens v. State, 11 Ark. 455, said: “* * * The distinctive feature of this particular class of cases of murder in the first degree being a wilful, deliberate, malicious and premeditated specific intention to take life. The inquiry then in cases of this class of murder in the first degree must always be, was the killing wilful, deliberate, malicious and determined on before the act of killing? If it was, then that degree of malice has superinduced the act that is necessary to make it rank in the highest grade of murder. * * * And it is onlv necessary that the premeditated intention to kill should have actually existed as a cause determinately fixed on before the act of killing was done, and was not brought about by provocation received at the time of the act, or so recently before as not to afford time for reflection.”

The killing arm ears to have been the result of a sudden quarrel, difficulty or row provoked and brought on by the deceased in the serving of appellant with the bowl of chili that he had ordered, as he had the right to do, in the place where he was employed. There was no conversation testified to by any witness that should have provoked deceased into attempting to eject appellant from the premises, and, from the statements testified to, it appeared defendant was willing to go, if permitted to do so. Regardless of the merits of the controversy, the testimony shows that the deceased provoked the difficulty and followed it up, throwing stove wood at appellant in trying to eject him from the premises, continued to be the aggressor until appellant had gotten out of the kitchen; that appellant claimed that he only threw the stick of wood, that he had snatched up from the box in the street, at his assailant, when he was pursuing him out of the back door, in order to protect himself. It is true the marshal testified that appellant told him he stood by the door on the outside, called the deceased to come out and then threw the stick of wood, striking him as he came out. The appellant denied this story and was corroborated by another witness, who said he saw him throw the stick of wood from where he had gotten it out of the wood box in the street, and saw it strike the deceased. Even if he stood by the side of the door and threw the missile at deceased, who provoked the difficulty and pursued him beyond the door, where the marshal said he had confessed he was standing, when he threw the wood at deceased, it was but in continuation of the difficulty and altercation, provoked by the deceased, so recent as to have afforded appellant no time for reflection, or cooling time, that would have constituted the result of killing his pursuer, under circumstances, murder in the first degree. The majority have concluded that, under the circumstances and according to the undisputed testimony, the killing could not have been murder in the first degree, and that the evidence is insufficient to support a conviction for a greater offense than murder in the second degree, for which the punishment shall be imprisonment in tlie penitentiary for a period of five years.

The court erred, of course, in not informing the jury that it was authorized to assess the lesser penalty of life imprisonment, if they found the appellant guilty of murder in the first degree, in accordance with the statute and our decisions, and the confession of error of the attorney general on this point is sustained. Crowe v. State, 178 Ark. 1121, 13 S. W. (2d) 606; Cook v. State, 179 Ark. 244, 15 S. W. (2d) 323; Williams v. State, ante p. 873.

In accordance with the practice, for the said error of the court in the failure to instruct the jury as to the punishment they could have assessed, life imprisonment, on a conviction of murder in the first degree, and because the evidence is insufficient to support the verdict for a greater offense than that of murder in the second degree, the judgment will be modified here, reducing the offense to murder in the second degree, with a sentence of 5 years in the penitentiary. Simpson v. State, 56 Ark. 19, 19 S. W. 99; Routt v. State, 61 Ark. 594, 34 S. W. 262; Crowe v. State, 178 Ark. 1121, 13 S. W. (2d) 606.

It is so ordered.


text:
    (1) National Union Fire Insurance Company v. Bynum. (2) Walker v. Boykin.
    Opinion delivered June 22, 1931.

      (1) Verne McMillen, for appellant.

      John Baxter, for appellee.
    (2) Robinson, House <& Moses, for appellant.

      Roberts <& Stubblefield, for appellee.
   Smith, J.

W. B. Bynum owned a large sawmill plant, upon which he carried insurance amounting to $169,500. This insurance was written by a large number of insurance companies, and three of the policies, aggregating $10,000, were written by the Home Fire Insurance Company, of this State. A fire occurred, and the loss as adjusted amounted to $137,770.10.

Each of the insurance policies covering this property contained what is commonly called the pro rata clause, which provides that each insurance company shall only be liable to the insured for its pro rata amount of the insurance carried on the property, ‘ ‘ whether valid or not or whether by solvent or insolvent insurers.”

Certain of the insurance companies insisted that the insurance written by the Home Fire Insurance Company should be taken into account, in determining the extent of their liability, and offered to pay on that basis, but, when they refused to pay except on that basis, suit was brought to enforce pro rata liability without taking into account the policies written by the Home Fire Insurance Company.

The fire occurred December 1,1930, but prior thereto a suit had been filed by the Attorney General to dissolve the Home Fire Insurance Company and to wind up its affairs.

It was alleged in the complaint filed by the Attorney General that the Home Fire Insurance Company was a domestic insurance corporation, being incorporated under the laws of this State, and that the State Insurance Department had “certified the defendant company to the Attorney General as an insolvent insurance company, to have its affairs wound up and administered as provided by law.” It was alleged that the company was insolvent, and that to preserve its assets for the benefit of its creditors it was necessary that some person be appointed “to take charge of all the assets, of every kind and character, of said company, to make an inventory of its property, and to handle and manage it under the proper orders of this court.” It was alleged that an opportunity had been given the company for a hearing as to the status and condition of its affairs as provided by law, but that the company had waived this right and admits its insolvency. Wherefore it was prayed that the court, “by proper judgment and order, appoint some suitable person to take charge of said insolvent company and to administer its affairs under the order of this court.”

On November 24,1930, which was, of course, prior to the date of'the fire, an order and judgment was entered by the court granting the relief prayed by the attorney general. This judgment recites the appearance of the insurance company, and its confession of the allegations of the complaint, and its consent that the “court may appoint a receiver as provided by law,” and that the court, “being well and sufficiently advised in the premises, doth find from the evidence that the said insurance company is insolvent, that its reserves are clearly impaired, and that a receiver should be appointed by this court as provided by law.” It was thereupon ordered that Elmo E. Walker be appointed receiver, to take charge of all the assets, books, papers, etc., of the company, and that “he proceed to the administration of the affairs of said company until the further orders of the court,” to which end he was authorized to employ such attorneys and assistants as was necessary in the administration of the affairs of the company, and “that he be and he is hereby empowered to collect premiums and bills receivable, to pay such operating expenses of said company as is necessary, and to do any and all other things necessary to consummate and carry out said receivership; that all officers, directors, officials, agents, or employees of said defendant insurance company be and they are hereby directed to turn over to said receiver all books, records, fixtures, equipment, moneys, bills receivable, real estate, and all other assets of every kind, nature or character at once.”

All persons were enjoined from interfering with the administration of the receiver and the order was to be effective upon the execution of the bond there provided for and the taking of the oath required by law. The receiver had qualified and had entered upon the discharge of his duties as such at the time of the fire. Certain other facts were stipulated which we need not recite.

A number of suits which were brought in Chicot County against the insurance companies which resisted payment were consolidated for trial, and the court was asked on their behalf to make the following declaration of law:

“That the appointment of a receiver for the Home Fire Insurance Company did not dissolve the corporation and did not cancel the policies issued by the Home Fire Insurance Company to the plaintiff, and that said policies were a part of the whole insurance covering the property described in the policies sued on herein, within the meaning of that provision in each of the policies issued by the defendant which provides: ‘This company shall not be liable under this policy for a greater proportion of any loss on the described property than the amount hereby insured shall bear to the whole insuranee, whether valid or not, or by solvent or insolvent insurers. ’
“That the plaintiff is entitled to recover only that proportion of the loss from each defendant which the amount of its policy bears to the whole insurance, and, each defendant having tendered that amount to the plaintiff in its answer, plaintiff should have judgment against the defendants only for the amounts tendered, with the costs which accrued up to the time the answers were filed.”

The court declined to so declare the law, but, upon the contrary, declared the law to be that the appointment of a receiver canceled the policies of insurance issued by the Home Fire Insurance Company, and that those policies could not be considered as. a part of the whole insurance covering the loss or damage to the property described in the policies sued on, and a judgment was rendered accordingly, including a penalty of twelve per cent, and an attorney’s fee. No complaint is made of the fee allowed the attorney, but it is insisted that' in any event the penalty was improperly imposed, for the reason that it is in excess of the amount in controversy, as the insurance companies had offered to pay the sum demanded, less the pro rata part of the Home Fire Insurance Company policies.

It is urg*ed for the reversal of the judgment of the circuit court that there was no adjudication of insolvency of the Home Fire Insurance Company, and that there was no order dissolving the corporation, and no order canceling its outstanding contracts of insurance; that, on the contrary, the receiver was ordered to proceed with the administration of the affairs of the company, to collect premiums and other bills receivable, and was not authorized or directed to wind up the affairs of the company. The cases of Federal Union Surety Co. v. Flemister, 95 Ark. 389, 130 S. W. 574, and Johnson & Cotnam v. Baxter, 108 Ark. 350, 157 S. W. 387, are cited in support, of this contention.

We do not review those cases, as they are not applicable to this case. The instant case is governed by the statute under which the Attorney General proceeded, and the order and judgment of the court must be interpreted with reference to the statute upon which it was based.

The Attorney General did not recite the statute pursuant to which he had x)i'oceeded, but he was not required to do so. The authority was conferred and the duty imposed upon the Attorney General to institute the proceeding herein recited by paragraph eight of § 5951, Crawford & Moses’ Digest, which reads as follows:

“Whenever the Insurance Commissioner shall have reason to believe that any insurance company of this State is insolvent or fraudulently conducted, or that its assets are not sufficient for carrying on the business of the same, or during any noncompliance with the provisions of this chapter, he shall communicate the fact to the Attorney General, whose duty it shall then become to apply to the Supreme Court or the circuit court, or, in vacation, to any of the judges thereof, for an order requiring said company to show cause why their business should not be closed; and the court or judge, as the case may be, shall thereupon hear the allegations and proofs of the respective parties, or appoint some suitable person as examiner to perform such duty and report upon the facts to said court or judge. If it appears to the satisfaction of said court or judge that such company is insolvent, or that the interests of the company so require, the said court or judge shall decree a dissolution of such corporation, and a distribution of its effects; but in case it shall appear to said court or judge that said corporation is able to comply with the provisions of this act, and that it is not insolvent, a decree shall be entered annulling the act of the Insurance Commissioner in the premises and authorizing such company to resume business.”

Pursuant to this proceeding the insurance company was adjudged to be insolvent. It is recited that the court “doth find from the evidence that the said defendant insurance company is insolvent.” And that adjudication stands unchallenged and unmodified. Indeed, it appears to have been confessed by the insurance company, and upon this adjudication the receiver was ordered to proceed to the administration of the affairs of said company until the further orders of the court. If there is any ambiguity about this order — and there does not appear to bO' — it is removed when read in connection with the statute above quoted, pursuant to which said order was made. The statute directs the action to be taken when the order is made which it authorizes, and that direction is that “The said court or judge shall decree a dissolution of said corporation and a distribution of its assets.”

The recital in the judgment of the court that the receiver “is hereby empowered to collect premiums and bills receivable” is not to be construed as conferring authority upon the receiver to continue in business as an insurer. The provisions of the statute are to the contrary, and this direction must be construed as an authorization only to the receiver to collect all the assets of the company, including- the premiums then due it.

A number of annotated cases which collect and review the authorities on this subject are cited in the notes to § 102 of the chapter on Insurance in 32 C. J., p. 1039, and in the notes to § '20 of the chapter on Insurance in 14 R. C. L., p. 853. In the section last mentioned the law is stated as follows: “While there are some contrary decisions, the weight of authority supports the proposition that, on the judicial adjudication of the insolvency of a stock insurance company and the appointment of a receiver, the outstanding policies of the company are ipso facto canceled, and that a claim for a loss thereafter occurring* is not a provable claim against the company. The policyholders are creditors for the value of their policies at the time of the breach thus occurring, which, in most cases, is the pro rata return premium, though net value in life insurance cannot, of course, be computed in this manner, and a provision of a statute for a return of the pro rata premium on a dissolution of an insurance company does not apply to life policies.”

The reason for this rule is well stated by the Supreme Court of Iowa in the case of Shloss v. Metropolitan Surety Co., 128 N. W. 384, to be that “This conclusion is based on the proposition that, by the decree of dissolution, the company is rendered incapable of carrying out its contracts, its business is brought to an end, and the policyholders become creditors to the amount equal to the equitable value of their respective policies and entitled to participate pro rata in its assets; and a settlement of the company’s affairs cannot be postponed to await a determination of the contingencies on which its policy engagements are dependent.” (Citing authorities.)

The judgment in the case of National Union Fire Insurance Co. et al. v. Bynum, No. 2217, appealed from the Chicot Circuit Court, conformed to this view.

As to the penalties in those consolidated cases, it suffices to say that the plaintiff was entitled to recover, and did recover, the full amount sued for, and the case is therefore within the letter and spirit of § 6155, Crawford & Moses’ Digest, which allows the penalty. It is true the difference between the sum demanded and the sum tendered is less than the penalty, but it is true also that it was the refusal to pay this difference which made the institution of the suits necessary. The plaintiffs were not required to accept any sum less than the full amount due under their policies, and they have been put to the expense and have incurred the delay and trouble of a lawsuit to recover that amount. It is this which the penalty compensates, and it was therefore properly assessed. New York Life Ins. Co. v. Adams, 151 Ark. 123, 235 S. W. 412; Illinois Bankers’ Life Assn. v. Mann, 158 Ark. 425, 250 S. W. 887; Fidelity Phenix Fire Ins. Co. v. Roth, 164 Ark. 608, 262 S. W. 643; Bankers’ Reserve Life Co. v. Crowley, 171 Ark. 135, 284 S. W. 4; Fulmer v. East Ark. Abstract & Loan Co., 173 Ark. 668, 293 S. W. 1018.

Without reciting the facts under which case No. 2208, submitted here under the style of Elmo Walker v. Boykin, arose, it may be said that the same question of law is presented, and the views here expressed are controlling in that case, and, as it was held by the trial court in that case that the Home Fire Insurance 'Company was liable, although the loss by fire occurred after the rendition of the judgment appointing the receiver for the Home Fire Insurance Company, that judgment must be reversed.

It follows therefore that the judgment in case No. 2217 (Insurance Co. v. Bynum) will be affirmed; while the judgment in case No. 2208 (Walker v. Boykin) must be reversed, and that cause remanded, and it is so ordered.


author: Butler, J.,

text:
    State use Hempstead County v. Arkansas Bank & Trust Company.
    Opinion delivered June 22, 1931.

      Carrigan $ Monroe, for appellant.

      W. S. Athins and Lemley & Lemley, for appellee.
   Butler, J.,

(after stating the facts). The theory on which this suit was brought was that the Arkansas Bank & Trust Company became the depository by" reason of an unlawful agreement entered into between it and the two banks above named to stifle competitive bidding for the county funds and to thus obtain its funds at a less rate of interest than the county could otherwise have obtained, and less than was reasonable and fair; and that, by this combination and agreement, the said banks became trustees to the extent of the funds received by them, the legal effect of which would be to make the claim of the county a preferred one and superior to that of the general depositors.

The facts are not in dispute. The banks involved in this suit, and others, perhaps, for several years had had an understanding by" which only one of the banks should procure a certain account, and that the account when so procured should be divided in certain proportion among the other banks. It appears that several years ago competition for the deposit of public funds was keen, the rate of interest offered being sometimes as high as 5% and 6% per cent, but approximately ten years before the date of this suit it was realized that such competition and the rate of interest bid for public funds were unprofitable and unwise. Hence the agreement, and in the early part of 1929, and before April 12th of that year, carrying out the general understanding which had obtained for a number of years, the three banks agreed that the Arkansas Bank & Trust Company should become the bidder for the county depository at the letting of the contract for such to be made on April 12th, and that the Arkansas Bank & Trust Company would carry with the other two banks in an equal amount approximately sixty per cent, of the funds it received and kept on deposit as county depository, it to be paid by the two other banks the same rate of interest which it paid the county, which in this case was three per cent. Pursiiant to that agreement, the Arkansas Bank & Trust Company bid three per cent, interest on daily balances for the county and school funds, and on said date it wras designated as county depository and executed the bond required by law in the sum of $145,000 with the Home Accident Insurance Company as surety thereon, guaranteeing to the county the faithful accounting and paying over on legal demand the moneys deposited in that bank by said county. To carry out its agreement with the other two banks, the Arkansas Bank & Trust Company, on April 20th, made deposits with the two other banks, each at the time executing to the Arkansas Bank & Trust Company a written guaranty, guaranteeing to the Arkansas Bank & Trust Company the prompt payment of all checks and orders that it might draw upon any deposit then made or any deposits thereafter made with interest at three per cent, per annum, figured on daily balances. The guaranty was a continuing one so long as the Arkansas Bank & Trust Company might deposit or have on deposit any amount to its credit in the other two banks. Provision was made for the cancellation of the guaranty upon notice and upon the payment in full of the amount of any deposits then on hand in said banks.

On January G, 1930, the three banks entered into a written agreement for the handling in the future of certain named accounts; one, the collector’s account; another, the water and light account; and an account designated as the county treasurer’s account, this being an account under which the county and school funds were held and handled. At that time, as shown by a notation at the head of the agreement, the Arkansas Bank & Trust Company had the county treasurer’s account, which, under the terms of its contract with the county, would continue until April, 1931. That agreement, signed by each of the banks, is as follows:

“Hope, Arkansas, January 6, 1931.
“It is hereby mutually agreed among the three banks in Hope that the following bank accounts will change every two years:
“1. County collector’s account each two years, about January. (The collector’s account starting in January, 1931, at First National Bank and first savings will change about January, 1932.)
“2. County treasurer’s account each two years, about April. (The county treasurer’s account is let by bid by county court. The account is now in Arkansas Bank & Trust Company since April, 1929; will change about April, 1931.)
“3. Hope water and light account each two years, about July. (This account is now in the Arkansas Bank & Trust Company since July, 1928; will change about July, ,1930.)
“It is understood and agreed that each bank make and pay for its own depository bond.”

In all essential particulars the facts in the case at bar as outlined above are the same as in the case of Taylor v. Whaley, ante p. 598. This case is ruled by that. In the Whaley case the contention of the appellee, treasurer of Independence County, was that the money in the Citizens’ Bank & Trust Company belonged to Independence County because there had been an unlawful agreement between that bank and the North Arkansas Bank of Batesville, which had been designated as the county depository, by which agreement said North Arkansas Bank became such depository, the- alleged unlawful agreement being* in all respects the same as that in the instant case, i.e., that they conspired together to submit only one bid and obtain the use of the public funds at a reduced rate of interest on daily balances in the name of the North Arkansas Bank and then divided the funds. The evidence in that case tended to establish the agreement, and the trial court so found and held that because of it the county funds which had been deposited by the North Arkansas Bank with the Citizens’ Bank pursuant to that agreement never became the assets of the North Arkansas Bank, and that the Citizens’ Bank was directly responsible to the appellee, as treasurer of Independence County, for said funds. In that decision the rule was recognized that a deposit of public funds in an incorporated bank constitutes a general deposit, and the relation of debtor and creditor obtains between the bank and the depositor; but that in cases where funds are acquired by the bank unlawfully and wrongfully, the depositor would be entitled to recover same in preference to the g-eneral creditors of the bank. We held, however, that this rule of preference was abrogated by act No. 107 of the acts of the General Assembly of 1927 providing for the distribution of the entire assets of an insolvent State bank.

The appellant, in the case at bar, contends that, while the facts here are similar to those of the Whaley case, yet there are vital points of difference which distinguish the two. The alleged points of difference are: (1) that, in the instant ease, the testimony established an express agreement, while in the Whaley case there was only a tacit understanding between the banks to stifle bidding followed by a later division of the funds between them; (2) that there was a solemn written and signed agreement executed between the three banks in the case at bar, under the terms of which the funds were divided among themselves and the defendants, Citizens’ National Bank and First National Bank, received and held their portions of said funds; (3) that there were separate written bonds executed by the Citizens’ National Bank and First National Bank to the Arkansas Bank & Trust Company for the faithful handling of these funds.

The first point of difference urged is wholly immaterial, for it matters not in what way the fact of the agreement complained of was established, so long as the evidence adduced established its existence and that it was acted upon. In both cases the evidence established the agreement beyond question and the similar action of the banks in the instant case and those involved in the Whaley case.

The second point of difference urged does not exist. The written agreement signed by the banks in the instant case was entered into after the alleged unlawful agreement complained of and after the banks had proceeded thereunder, and the agreement referred only to the relation of the banks to each other and their dealings with the public funds in the future. It recognized that the Arkansas Bank & Trust Company had the county funds and would retain them until April, 1931, and the agreement related to the disposition of those funds after said date.

On the third alleged point of difference there is none. It was not deemed necessary to recite in the statement of facts in the Whaley case the giving by the Citizens’ Bank & Trust Company of a bond to the North Arkansas Bank guaranteeing payment to the latter bank of the funds deposited by it in the former, but there was such a bond, the effect of which we considered in deciding the Whaley case.

The position is taken by the appellant that the bonds made by the Citizens’ National Bank and the First National Bank to the Arkansas Bank & Trust Company, the written agreement of January 6, 1930, together with the manner in which the Arkansas Bank & Trust Company’s account was carried on the books of the other two banks established an express written trust within the meaning of act No. 107, supra. We do not agree with this conten tion: first, because the only written agreement signed by the Arkansas Bank & Trust Company, as we have seen, is referable only to the future handling of the county funds and does not relate to the agreement under which the Arkansas Bank & Trust Company was designated as the county depository; and, second, because the agreement was not with the county, and to be an express trust within the meaning of the act the agreement must be between the trustee and the cestui que trust, signed by the trustee at the time the contract for the deposit of the funds was made. “Express trusts are thus created by the direct and positive act of the parties manifested by some instrument in writing, whether by deed, will or otherwise.” U. S. Fidelity & Guar. Co. v. Smith, 103 Ark. 145, 147 S. W. 54.

Act No. 107 of the Acts of 1927, which controlled our decision in the ease of Taylor v. Whaley, supra, and which must control in the instant case, by § 1 provides: “All creditors of a bank of which the commissioner has taken charge are classifiable either as secured creditors, prior creditors, or general creditors.” Continuing, that section defines “prior creditors,” one definition of which, and the one relied on by the appellant, is as follows: “(5) The beneficiary of an express trust, as distinguished from a constructive trust, a resulting trust, or a trust ex maleficio, of which said bank was the trustee, and which was evidenced by writing signed by said bank at the time thereof.” After defining certain other prior creditors, the section further provides that “all creditors not in this section hereinabove classed as secured or prior creditors of said bank, including the State of Arkansas, and any of its subdivisions, shall be general creditors thereof.”

It is suggested that, in our construction of subdivision (5) of § 1 of act 107, supra, in the case of Taylor v. Whaley, we overlooked or ignored the words in said section “of which the said bank was trustee.” We neither overlooked nor ignored these words, but considered them in connection with the entire subdivision, giving to the same what we conceived to be its ordinary and common sense meaning. In fact, we were unable to see any obscurity or ambiguity in that subdivision, and are of the opinion that the intention is so clearly expressed as to require no construction. The subdivision might have omitted the words, “as distinguished from a constructive trust, a. resulting trust, or a trust ex maleficio of which said bank was the trustee,” in which event the statute would have read: “The beneficiary of an express trust which was evidenced by a writing signed by said bank at the time thereof.” But the inclusion of the words which we say might have been omitted was merely to, and did, emphasize that no trust should be the basis of a preferred claim except an express trust. We think the legislative intent clear, and the reasons for the limitation named in the act sound. Experience has shown that the rights of general depositors are often impaired in failing or insolvent banking institutions by reason of preferences given to favored depositors which the act in question sought to cure and which could not reasonably have been anticipated to work harm to the State, or its agencies, in respect to their funds on deposit in such institutions, as the policy of the law was to protect said funds by bonds executed by depository banks securing the payment of public funds on demand. The unfortunate situation in this case, as in many others that have recently arisen, is that the bonds taken to secure the public funds on deposit have proved insufficient.

As in the Whaley case, we have failed to state a number of facts surrounding the agreement entered into between the three banks because it is unnecessary for us to decide whether the agreement and the action of the banks thereunder was lawful or unlawful; if unlawful, no trust in the moneys received by the banks could arise except a tmst ex maleficio, which is not such a trust as under the statute would create a preference. We reaffirm the doctrine announced in Taylor v. Whaley, supra; and, as that doctrine is controlling' in the instant case, the decree of the learned special chancellor is correct, and it is therefore affirmed.

Mr. Justice Mehafey dissents.


author: Per Curiam.

text:
    Montgomery v. Nowell.
    Opinion delivered June 22, 1931.

      It. W. Robins and George F. llartje, for petitioner.
   Per Curiam.

H. W. Montgomery seeks to have quashed by this court an order of the circuit court of Faulkner County by which he was suspended from office as circuit clerk and recorder of Faulkner County, and R. A. Nowell temporarily appointed to fill the vacancy.

The record shows that H. W. Montgomery was duly elected circuit clerk of Faulkner County at the general election in November, 1930, and duly qualified and entered upon the discharge of his duties. On June 1, 1931, the grand jury of Faulkner County returned, three indictments against him, charging him with the offense of embezzlement, alleged to have been committed while he was treasurer of Faulkner County prior to the beginning of his term as circuit clerk. On the return of the indictments, the circuit court suspended him from office under the provisions of § 10,335 of Crawford & Moses’ Digest. Immediately after making the order, the court adjourned until the next term, which will commence on the first Monday in November, 1931. R. A. Nowell was temporarily appointed in his place under the provision of § 10,338 of the Digest. The parties have agreed that the above statement is a correct copy of the record in the matter.

The order of the circuit court was wrong. In Jacobs v. Parham, 175 Ark. 86, 298 S. W. 483, it was held that each term of office is a separate entity and that § 10,335 of the Digest does not provide for the suspension of an indicted officer except for offenses committed during the term, and that suspension may not be had for official misconduct during the prior term of office for which he may he indicted. That case rules the present proceedings, and it may be said that in 46 C. J., at page 986, the author says that offenses committed during a previous term of office are generally held not to furnish cause for removal. It follows that the order of the circuit court suspending H. W. Montgomery from the office of circuit clerk must be quashed, and it is so ordered.