text:
    Knowlton v. Walton.
    4-3712
    Opinion delivered November 5, 1934.

      Ed I. McKinley, Jr., and J. H. Carmichael, for appellant.

      W. G. Riddick, Floyd Terral, Louis Tarlowski and E. G. Bhoffner, for appellee.
   Humphreys, J.

This is a proceeding by mandamus brought in the Second Division of the circuit court of Pulaski County to compel the mayor of Little Bock to call a special election on a petition, and an amendment thereto filed on August 29, 30,1934, seeking to change the form of government of said city under the provisions of act 311 of the Acts of the Legislature for the year 1931.

A response was filed to the petition, and an intervention was filed by a taxpayer attacking the constitutionality of said act. A demurrer to the intervention was filed.

The trial court heard the case upon the pleadings and agreed statement of facts, resulting in a dismissal of the intervention and a granting, of the petition for mandamus.

Both the respondent and intervener have duly prosecuted an appeal to this court. The agreed statement of facts appears in appellant’s abstract as follows:

“It is agreed that petitioner herein is a taxpayer of the city of Little Bock.
“That respondent is mayor of the city of Little Bock.
‘ ‘ That on August 29, 1934, a petition signed by 107 qualified electors of the city of Little Bock, Arkansas, was presented to respondent under the provisions of act 311 of the Acts of Arkansas for the year 1931, requesting and asking’ him to call an election at which the electors of the city of Little Bock should be permitted to vote upon the question of changing their form of government to the so-called city manager-commission form, and upon the question of naming seven qualified electors proposed in said petition as a charter committee whose duty it would be, among other things, to draft a new charter and system of laws for said city in case the said city manager-commission form of government should be adopted, and said charter committeemen should be elected at said election, upon a ballot containing two lines, Aor home rule’ and Against home rule/ and naming* the said seven proposed charter committeemen to he voted npon.
“That on the next day, Angnst 30, 1934, an additional and supplemental petition was presented to said respondent in the same language and proposing the same seven charter committeemen, before any action had been taken by said respondent upon the petition first presented, and before any similar petition had been presented to him, signed by 144 qualified electors of the city of Little Eock, or a total of 242 such signatures upon the whole petition.
“That at the time said petition was filed the law required the signatures of only 70 qualified electors.
“That said respondent has failed and refused to call an election responsive to said petition, and to issue a proclamation setting the date thereof as required by law; that the persons proposed in said petition for an election mentioned as a proposed charter committee are qualified electors and landowners within the city of Little Eock, and that an exact copy of said first and supplemental petition mentioned in said petition for mandamus is attached hereto Exhibit A.
“ It is also agreed that subsequent to the filing of the petition on August 29, 30 the respondent publicly called, at-the request of interested citizens, a mass meeting for the purpose of causing the circulation of another petition under act 311 of 1931, containing different names of proposed charter committeemen; that between the call for said mass meeting and September 4, 1934, respondent was active in securing the assent of persons to be placed upon said new petition as proposed charter members; that said meeting was held in the city of Little Eock on the evening of September 4, 1934, at which it was voted by parties attending to circulate such other petition, and seven qualified persons, some of whom had assented at the request of respondent to the placing of their names on such petition and ballot as proposed charter committeemen, were elected as such. The respondent attended said meeting and was active in the same, and aided in accomplishing its object.
“Tliat, as a result of this meeting, a petition was circulated between the 4th and 7th of September, 1934; that it contained the signatures of 108 qualified electors of the city of Little Rock, but that it contained the names of a proposed charter committee different from those proposed in the first petition already on file with the respondent in all but two instances.
“That said petition was filed with respondent on September 7,1934, and that on the same date the Pulaski Chancery Court, at the complaint of the petitioner herein, issued a temporary injunction, which was served upon respondent the same day, enjoining him from calling an election responsive to said petition or issuing his proclamation fixing the date thereof, and that said action is still pending.
“That the petitioners who signed said last mentioned petition are not the same persons who signed the first petition.
“That a bond for costs of holding an election, if granted, was filed with the last-mentioned petition and certificate of genuineness of signatures accompanied said last-mentioned petition.
“That an extra copy of said last-mentioned petition with signatures omitted is attached hereto marked Exhibit B.”

The constitutionality of the act is assailed by the intervener on the ground that it is a special or local act because it provides for a change of the form of government in cities only that have 50,000 or more inhabitants. Reasonable classifications based upon population in the enactment of laws do not offend against the amendment to the Constitution prohibiting the Legislature from passing special or local laws. If the classification is reasonable and prospective, the law is general, but, if unreasonable and arbitrary, the law is special or local. In the cases of Childers v. DuVall, 69 Ark. 336, 63 S. W. 802, and Montgomery v. Little, 69 Ark. 392, 63 S. W. 993, classification based on population in the enactment of valid laws was recognized, and both cases were cited with approval in the recent case of Blytheville v. Ray, 175 Ark. 1089, 1 S. W. (2d) 548, the latter case having been decided more than a year subsequent to the passage of ■Amendment No. 14. We find nothing’ in this record indicating that the classification contained in act 311 is unreasonable or arbitrary. The Legislature may have ascertained that the commission form of government was not workable or practicable in cities of less than 50,000 inhabitants. In classifications as a basis for the enactment of laws, the Legislature must be allowed a wide latitude of discretion and judgment. Bollinger v. Watson, 187 Ark. 1044, 63 S. W. (2d) 642.

We find nothing in the Initiative and Referendum Amendment to the Constitution limiting the power of the Legislature to pass an act authorizing a city to change its form of government at a special election to be called by its mayor on petition of a certain number of voters therein.

Said act 31J. of 1931, being a general and valid law, is wholly independent of the provisions of the Initiative and Referendum Amendment to the Constitution, and is not and cannot be aided by it, for said act is complete within itself. Act 311 of 1931 sets out its own procedure for putting it into operation, which is entirely different from the procedure provided in the Initiative and Referendum Amendment.

Respondent also contends for a reversal of the judgment because it was within the alleged discretion of the mayor to call the election upon either of the petitions before him. We cannot agree with respondent. It was his duty to call the election upon the first legal petition filed before him. The petition filed with him on August 29, 30, 1934, complied with said act 311 in all respects, and it was his bounden duty to call the election on said petition, and not on the petition filed before him at a later date. Lenon v. Tunnah, 174 Ark. 765, 297 S. W. 819.

Respondent contends that the petition filed on August 29, 30, 1934, was fatally defective because not verified and because no bond was filed obligating the petitioners to pay the costs of the special election. Said act 311 makes no such requirements. It does however obligate the petitioners for the expenses incident to the special election, and they must deposit a sufficient sum to defray the expenses of the special election with the election commissioners prior to the date thereof; also no election can be held for the want of funds.

No error appearing, the judgment is in all things affirmed.

Mehafby; J., not participating.


source: Caselaw Access Project

author: Mehaffy, J.

license: Public Domain

text:
    Winton v. Irby.
    4-3722
    Opinion delivered November 5, 1934.

      F. O. Taylor and G. B. Oliver, for appellant.

      O. T. Ward, T. A. French, Wm. F. Kirsch and Maurice Cathey, for appellee.
   Mehaffy, J.

Appellant and appellee were candidates for the office of county and probate judge of Clay County in the. rnn-off Democratic Primary held August 28, 1934. The Democratic Central Committee canvassed the votes, and certified that the appellee received 1,284 votes and the appellant 1,262.

The. appellant filed a complaint in the Clay Circuit Court contesting the certification and nomination of the appellee, and alleged in substance that, according to the certificate of the central committee, the appellee had received 22 votes more than appellant. He alleged that in Oak Bluff Township, the vote, as tabulated by the central committee, gave appellant 57 votes and the appellee 349 votes. He further alleged that 200 of the-votes for the appellee in said township, were cast by persons who did not have legal poll tax receipts made out in the manner and form required by law; that 25 persons voted for appellee in said township who claimed to have arrived at 21 years of age since the last assessing time, and that they did not subscribe to affidavits stating such facts to be true. He also alleged that 50 votes in said township were cast for appellee by persons who had no poll tax receipts. Substantially, the same allegations were made as to Blue Cane Township, Lidell Township, Wilson Township and Payne Township. He then alleges that he received a majority of 200 of the legal votes cast in the election for the office of county and probate judge.

There were eight paragraphs in the complaint, and paragraph No. 8 stated that the appellee was ineligible for the office of county and probate judge, that he had been convicted of embezzlement in the Federal court.

On motion of appellee, the court struck out paragraph 8. This, the appellant alleges, was error. Paragraph 8 did not state a ground for contest. A candidate contesting a primary election must show, in order to succeed, that he has received a majority of all the votes cast at such primary election. The real issue is, which candidate received a majority of the legal votes cast? If his competitor was ineligible, this would not entitle the contestant to receive the certificate of nomination, unless the contestant received a majority of the- legal votes. Bohlinger v. Christian, ante p. 839; Swepston v. Barton, 39 Ark. 519; Collins v. McClendon, 177 Ark. 44, 5 S. W. (2d) 734. The trial court therefore did not err in striking paragraph 8 from appellant’s complaint.

The appellee, also filed a demurrer to plaintiff’s complaint alleging that the complaint did not state facts sufficient to constitute a cause of action. The court sustained the demurrer, and dismissed plaintiff’s complaint.

The second amendment to plaintiff’s complaint, which was stricken out hy the court, was simply an amendment making the complaint more specific, and plaintiff should have been permitted to file the amendment.

The appellant prosecutes this appeal to reverse the judgment of the court in striking’ out paragraph 8, in refusing appellant leave to amend his complaint, and in sustaining a general demurrer to the complaint. The complaint stated facts sufficient to constitute a cause of action. The. real question in the case, is whether the contestant received a majority of the legal votes. If he did, he is entitled to the nomination, and, if he did not, he is not entitled to the nomination although the other votes were cast for an ineligible candidate.

The appellant alleged that he was a qualified elector, and that he and the appellee were candidates for the office, of county and probate judge, and that the certificate of nomination was given to appellee, and that appellant received more legal votes than appellee. These allegations were sufficient to make a prima facie case.

Section 3773 of Crawford & Moses’ Digest, provides: ‘ ‘ If the complaint is sufficiently definite to make a prima facie case, the judge shall, unless the circuit court in which it is filed is in - session or is to convene within thirty days, call a special term,” etc.

This court has said: ‘‘ The pleadings, in an election case, should be sxifficiently specific to give reasonable information as to the grounds of contest. The statute provides that the contest shall be begun in a certain number of days, and this court has held that, after the time for filing a contest has expired, the contestant cannot so amend his complaint or petition as to set forth any new cause of action. He can, however, even after the. time' has expired, amend his complaint by making it more definite and certain as to any charge in his original complaint, and, if a motion to make more specific is filed, it would be his duty to make, the amendment.” Robinson v. Knowlton, 183 Ark. 1127, 40 S. W. (2d) 450.

It is also said in the Robinson case: “Since such contest, is generally held not to be a civil action subject to the rules of pleading in actions at law, but to be a special statutory proceeding, varying in its nature as well as in the sufficiency of the pleadings, according to the statutes of the different States, the same strict technical accuracy in pleading is not usually required as in civil action inter partes.” LaFargue v. Waggoner, ante p. 757.

The court therefore erred in sustaining the demurrer, and erred in refusing to permit appellant to amend his complaint, but did not err in striking out paragraph 8 of plaintiff’s complaint.

Appellee prosecutes a cross-appeal and urges that the court erred in finding that B. B. Spence made, the supporting affidavit. B. B. Spence testified that he lived in Piggott, Arkansas, and that he signed the affidavit in Mr. Winton’s office. He was asked: “Did you swear to it,” and he answered, “Yes, sir.” When asked: “Before whom?” he answered: “Mr. Ray Winton.” He also testified that he never made any formal oath, but explained this by stating that he did not hold up his hand. He met the notary public on the- street and told him that he had signed the affidavit.

When Spence was recalled, he was questioned at length, and said he did not remember very distinctly about what happened. The certificate of the notary public showed that Spence had signed and sworn to the affidavit. The court thereupon held that the evidence showed that Spence had made the affidavit.

The weight of the evidence and the credibility of the • witnesses were for the sole determination of the trial court, and we have many times held that in cases in the circuit court the finding of fact by a trial court is as binding here as the verdict of a jury. Holman v. Armstrong, 187 Ark. 958, 63 S. W. (2d) 339.

We recently said: ‘‘When a case is submitted to the trial judge, his finding of fact is as conclusive as the finding of a jury.” Bridges v. Shapleigh Hdw. Co., 186 Ark. 993, 57 S. W. (2d) 405. American Ins. Co. v. Brown, 184 Ark. 978, 44 S. W. (2d) 346.

The judgment on cross-appeal must be affirmed, and the judgment on appeal reversed and remanded with directions to overrule the demurrer, permit plaintiff to file his amendment, and for further proceedings according to law and not inconsistent with this opinion.

It is so ordered.


author: McHaney, J.

text:
    Graves v. Simms Oil Company.
    4-3544
    Opinion delivered November 5, 1934.

      Lawrence E. Wilson and Jones & Jones, for appellant.

      Gaughan, Sifford, Godwin & Gaughcm, for appellee.
   McHaney, J.

The subject-matter of this litigation has heretofore been considered by this court in three separate cases. The first was Mason v. Graves, 265 S. W. 667, not officially reported, 167 Ark. 678, 265 S. W. 667; the second was Hildebrand v. Graves, 169 Ark. 210, 275 S. W. 524; and the third was Murphy v. Graves, 170 Ark. 180, 279 S. W. 359.

Appellant was formerly Mary Murphy, the widow of Larkin Murphy who died intestate in the year 1878, the owner of 160 acres of land in Ouachita County, and leaving surviving him appellant and two children, Joe and Drucilla. This land constituted the. homestead of Larkin Murphy, and Mary, his widow, continued to occupy it as a homestead after his death. She thereafter married Graves, and three children, Luther, Mary and Martha, were born of this union. In 1884, on the application of Mary Murphy Graves, widow of Larkin Murphy, the probate court entered an order vesting the title to said land in Mary Murphy Graves on the ground that the value of the whole estate of Larkin Murphy was less than $300. In the case of Hildebrand v. Graves, supra, it was held that this order was void because the land constituted the. homestead of Larkin Murphy, who left minor children.

In 1897 appellant conveyed the middle one-third of said tract, fifty-three and one-third acres, to Will Newton, who had married Drucilla Murphy, by deed purporting to convey the fee simple title. By deeds of 1905 and 1911 purporting to convey a like title, she conveyed the west one-third of said tract to Luther Graves, a son by her second husband. She occupied the house on the east end of the tract, called the home tract. In 1913 she made a gift to her daughters, Mary and Martha of the east one-third of said tract, to Mary the west half of the east fifty-three and one-third acres, and to Martha the east half thereof. Mary had intermarried with Henry Murphy at that time. These daughters made improvements on the tracts given them by their mother, entered into possession thereof, and have lived thereon since that time; their mother, appellant, living with them. On May 22, 1922, appellant executed deeds to Mary and Martha to the respective, parts she had theretofore given them, which deeds were shortly thereafter placed of record, — that to Mary being recorded May 30, and that to Martha June 3, 1922. On June 12, 1922, one P. T. Hildebrand secured a deed from Drucilla Newton, the sole heir at law of Larkin Murphy, then living, to the whole 160-acre tract, and on June 17, 1922, he secured a deed from appellant’s daughters, said Mary and Martha, to the same tract. On June 20, 1922, Hildebrand executed an oil and gas lease to George B>. Gordon, and through mesne conveyances and assignments, title to the lease vested in appellee on July 29, 1922. Hildebrand reconveyed the land their mother had deeded them to Mary and Martha, excepting the mineral rights. On June 22, he executed to Mary and Martha mineral deeds, subject to said lease, covering an undivided half interest in two 20-acre tracts. Thereafter, oil was discovered in large quantities on said land, that is, the east one-third of said tract, by appellee, which gave rise to this and the former litigation heretofore mentioned.

This action was brought by appellant in September, 1933, in which she asserted a claim of dower. She alleged that the oral gifts to her daughters, Mary and Martha, were, upon condition that they were to take effect only upon her death, and that she retained and reserved to herself during her life all her rights, interests and property in said tracts so given, and all the rents and profits therefrom, with the right of occupancy and possession, and all taxes to be paid in her name, with all rights of homestead, dower, etc., and that she executed and delivered 'the deeds of conveyance to Mary and Martha upon like, conditions. She sought a recovery of and from appellee of the value of the oil which it is alleged it had wrongfully taken from the east one-third of said original tract. Appellee answered admitting some of the allegations of the. complaint and denying others. It set out its title as above mentioned, for which it paid a valuable consideration and pleaded that it was an innocent purchaser. It also pleaded estoppel on a number of grounds, including the former litigation herein mentioned, and other litigation, as also the statute of limitation, adverse possession and laches.

Trial to a jury resulted in a verdict and judgment for appellee.

There, is some contention made on this appeal that there was no delivery of the deeds executed by appellant on May 22, 1922, to her daughters Mary and Martha, and for this reason no title passed to them. While the complaint alleged the execution and delivery' of said deeds, appellant testified that she took the deeds, after their execution, home and put them in a trunk. Her testimony as to the nondelivery thereof to the grantees is very vague and uncertain. Appellant is quite old, lacking in memory and deaf, and testified through an interpreter. She was supported somewhat by her daughters. But the fact remains, however, that she had in 1913 made a parol gift of the same land conveyed by said deeds to her said daughters, put them in possession and permitted the making of improvements thereupon, which had the effect of giving them the fee title. We so held in Murphy v. Graves, 170 Ark. 180, 379 S. W. 359. In that case Bennie Murphy, son of Joe Murphy and grandson of Larkin, sought to recover his deceased father’s interest in all the land, and it was held that he was barred by the statute. It was there held that appellant had abandoned her homestead rig’ht by her attempted conveyances of 1905 and 1911 as to the portions of the land described in said deeds, and the court continued: ‘ ‘ The question presents itself whether or not the oral gift of the remainder of the land to the two daughters of Mary Graves (Mary and Martha) constituted an abandonment. We are of the opinion that it did. An oral gift of land is not enforceable unless there is actual possession delivered followed by the making of valuable improvements by the donee. Young v. Crawford, 82 Ark. 33, 100 S. W. 87; Brown v. Norvell, 96 Ark. 609, 132 S. W. 922; Williams v. Neighbors, 107 Ark. 473, 155 S. W. 917; Causey v. Wolfe, 135 Ark. 9, 204 S. W. 977. The executed oral gifts of land were as effectual to divest title as a written conveyance.” It was then said that Bennie Murphy’s right of entry, “was complete upon the abandonment of the homestead right by the widow, and the statute of limitations began to run against him at that time. The widow (Mary Graves) also had an unassigned dower right, but this did not bar the right of entry of the heirs so as to prevent the statute of limitations from running. Griffin v. Dunn, 79 Ark. 408, 96 S. W. 190; Fletcher v. Josephs, 105 Ark. 646, 152 S. W. 293.”

Therefore,-appellant’s daughters, Mary and Martha had acquired the legal title to their respective tracts of the east one-third of the 160 acres prior to the execution by appellant of the deeds to them in 1922. We think it must be held that these, deeds conveyed her unassigned dower right in said tracts. If so, then these conveyances were not to strangers to the title, but to the owners of the legal title, and, both the legal and the equitable title being in them, the unassigned dower right was extinguished, and their deeds to Hildebrand conveyed the whole title, both legal and equitable.

For this reason alone, the court should have directed a verdict for appellee as requested by it. It becomes unnecessaiy to discuss the other interesting points so ably argued by counsel on both sides.

Let the judgment be affirmed.


author: Butler, J.

text:
    City National Bank v. Wofford.
    4-3707
    Opinion delivered November 5, 1934.

      W. L. Curtis and James B. McDonough, for petitioners.

      Hill, Fitshugh & Brissolara, for respondent.
   Butler, J.

Mrs. J. A. McCann and D. H. Moores filed suit against the City National Bank of Fort Smith and I. H. Nakdimen. There were separate suits, but the cases are similar, the allegations of the two complaints being practically identical except in two particulars, which will be later noticed. The allegations in brief were to the effect that plaintiffs were customers of the bank which had, from time to time, been investing the surplus of the complainants in securities selected by it and its president, Nakdimen. They were, not advised of the value of these securities, but relied solely on the advice of the president of the bank in making investments. In all instances the president represented that the securities purchased for them were “gilt edged” and “as good as gold”; that is to say, that the character of the investments was safe and conservative.

Pursuant to such course of dealings, the complainants purchased from the bank through its president certain bonds of the. East Oklahoma Publishing Company, paying par and accrued interest, Mrs. McCann purchasing bonds of the first issue of $75,000, and Moores buying bonds of a second $50,000 issue. For a time the interest was collected by the bank and deposited to their account, and long after the purchase of the securities they were informed of certain fa.cts which made them doubt the value of the securities, and, on learning that bankruptcy proceedings had been instituted against the publishing company, they made investigation as to the solvenc}?- of said company and market value of the bonds. They charged that the president of the bank had promoted the incorporation of the publishing company; that he had purchased several newspaper plants in Oklahoma for $69,000, formed the said publishing company, capitalized it at $90,000 of which $45,000 was issued to him, and nothing was paid by him and the corporators therefor; that said newspaper plants constituted the sole assets of the corporation, and that immediately after its formation it issued $75,000 of bonds secured bjr mortgage upon said plants made to the Sallisaw State Bank of Oklahoma of which Nakdimen was president. The bonds involved in Mrs. McCann’s suit were a part of said bond issue.

The Oklahoma Constitution prohibits the issue of stock except for money, labor done, or property actually received, and the statutes of that State render stockholders liable for the debts of a corporation to the extent of the amount unpaid on said stock.

The bonds provided that no recourse should be had for the payment of the principal or interest thereon against past, present or future stockholders, directors or officers of the company by virtue of the statutes and Constitution of Oklahoma, or by the enforcement of any penalty or assessment or otherwise. The mortgage securing said bonds has many exculpatory provisions which materially impair the rights of the holders of the bonds, and gives undue privilege and unreasonable immunities to the trustee. Plaintiffs were not familiar with the force and effect of the provisions in the bonds and mortgage, and, if they had read the same, they would have conveyed no definite meaning to their minds as to the effect upon their securities.

It was alleged by plaintiff McCann that the transaction by which she was induced to, and did, purchase the bonds was fraudulent in that the defendants failed 10 inform her that the $75,000 issue was made by a company owning property not exceeding $69,000 in value secured by mortgage on property not exceeding $65,000 in value, ostensibly by a corporation whose capital stock amounted to $90,000 when it had no capital paid in; further, in failing to advise plaintiffs of the clause relieving the stockholders of liability', which had the effect, together with the other circumstances relating to the securities, of rendering the investment a poor one, and not of the character represented by defendants to the plaintiffs that they were making with their money. This entitled the plaintiffs to a rescission and a return of the money invested.

In the Moores complaint the additional allegation was made that a year after the company had issued the $75,000 bond issue it bought three certain newspaper plants at a price far below $50,000, and that the price paid was not in excess of the market value of same; that on October 1,1929, the- publishing company issued $50,000 in bonds purporting to be “first mortgage serial bonds,” and these were secured by a deed of trust similar to the one securing the first bond issue, the same bank being 'named as trustee; that the defendant bank purchased for him $9,000 of these bonds. The property securing this issue was three plants acquired after the first bond issue, and all property included in the deed of trust securing that issue. The mortgage contained covenants that the mortgagor owned the absolute title, free and clear of all incumbrances, liens or charges, and that it was, and would be, kept a first lien upon the trust estate.

That the bonds purporting to be thus secured were not in fact as covenanted, but were only a first mortgage on three plants, and a second mortgage on the remainder of the plants — that is, there were nine plants described in the deed of trust which the mortgage warranted was a first lien on all, but which in fact was only a first lien on three.

That the recitals of the bonds and mortgage were false in so far as they stated that they were first liens on the property; that these were known to be false by defendants when they sold the second bond issue.

Included in Mrs. McCann’s complaint was the allegation that the bank and its president, Nakdimen, purchased two notes for her, executed by W. L. Sharp, which were represented to be a good investment, and secured by a first mortgage on valuable property, whereas, in fact, the security was never adequate; that said notes were due November 1, 1928, a year after the purchase by her, but the principal has not yet been paid and interest only until October 1, 1932; that the total bond issue on the Sharp transaction was $10,000; that $1,000 has been paid on the principal, no part of which has been paid to her, and that she is entitled to her pro rata share thereof. She alleged that the notes wire not such an investment as represented, and that she is entitled, under the agreement between her and the bank, to a repurchase by it of said notes, which she tendered with her complaint.

Based on the allegations of these complaints, the plaintiffs joined in a petition for the production of books, papers and documents of the bank and Nakdimen relating to the transactions involved in the complaints. In the petition it was alleged that all of the transactions and matters relating thereto are contained in the books, papers and documents of the bank and Nakdimen, and that the plaintiffs are entitled to an examination and inspection of them in advance of trial so that they may properly present the facts found therein to the court; that an accountant should be appointed to examine and inspect the books and documents, and to ascertain the facts “hereinafter called for, whichever may seem to the court the best method of ascertaining the facts.” It was alleged that the matters sought to be inquired into were material to the plaintiffs’ causes of action and the defenses interposed herein by the answers. (The answers filed by the bank and Nakdimen contained specific denials of each and all the allegations of the complaints.)

First. It Avas alleged in the petition that an examination of the books of Nakdimen for a short period prior to October 1, 1928, Avill disclose the truth or falsity of the allegations respecting the purchase price paid by Nakdimen for the publishing plants, and it Avas prayed that the court order him to submit his books and papers relating to the purchase of said plants for examination by an accountant with directions to the accountant to ascertain what amount was paid for said plants, to whom paid, and when.

Second. That defendant bank’s books be examined to ascertain whether the sum paid by Nakdimen for the publishing plant passed through said bank, and, if so, that a full account of the transactions shown on its books be ascertained and reported by the accountant.

Third. That it is material to the issues to ascertain the truth or falsity of the allegations in the pleadings relating to the purchase and amount of the bonds involved, and that plaintiffs, through their accountant, examine the books and papers of the defendants with respect to these allegations and ascertain the facts relating to the sale of said bonds, and, if sold to the plaintiffs, whether or not handled individually by Nakdimen. Whether the bank or Nakdimen owned the bonds sold to the plaintiffs, or any part of' said bond issue at the time of their sale, and that it should be ascertained from said books to whom the proceeds of the bonds sold to plaintiffs and other bondholders were paid, and what commission, if any, was charged the East Oklahoma Publishing Company for the sale of the bonds to these plaintiffs and other bondholders.

Fourth. That it is material to the issues to ascertain if the bank acquired the bonds sold to plaintiffs or other bonds of which plaintiffs’ bonds, respectively, were a part, and, if it did not acquire said bonds, in whose behalf it was acting in making the sale.'

Fifth. That the account between the defendant bank and East Oklahoma Publishing Company is material so far as the same may show that the bank was lending money to said Publishing Company and receiving payment from the sale of said bonds for money owing by the company to it, and, if the books of the bank failed to disclose these facts, then the books of Nakdimen should be examined.

Sixth. That the request made was an examination of the books of defendants relative to the account between Nakdimen and the Publishing Compan)', in so far as it relates to the amount paid for the purchase price of the plants which he- sold to the Publishing Company, and how, and from what source, the Publishing Company de- ■ rived the money it paid him for said purchase price when the same was received by him; and, if it was from the proceeds of the bond issues described in the complaint, with a full statement of the transactions between him and said company in regard to said bond issues to be made by the accountant which should include any assessment paid upon his stock, if any, and dividends received therefrom, if any.

Seventh. The request was made for a full statement by the accountant of the account between the bank and the Publishing Company from the date of its organization to the present, showing the amount of indebtedness owed the bank by said company, what payments were made to it and what indebtedness, if any, the company now owes the bank and what securities the bank holds for said indebtedness.

Eighth. In relation to an allegation in the complaint of plaintiff McCann regarding the sale of notes of W. L. Sharp “which were in the main denied in the answer,” request was made that it be ascertained by the accountant from the books of the bank or Nakdimen, which was the seller of the notes to plaintiff, the total amount of the mortgage indebtedness against the lands mortgaged to secure said notes, who owns the other notes secured by the said mortgage, the amount paid by plaintiff for the notes purchased by her, what disposition was made of the money paid for the purchase price, and what amount, if any, Sharp owed the bank prior to the. sale of the notes to plaintiff and others; and a full statement of an account between Sharp and the bank and the disposition made by the bank of the proceeds of the notes which were sold to plaintiff McCann and others.

Ninth. In the case of I). H. Moores, it was alleged that as a part of its business the bank was engaged in selling securities to its customers and the public, receiving a commission and in many instances being benefited by such sales. It was stated that the truth of the'allegations which were denied by the answer be ascertained and request was made that the accountant be directed to ascertain these facts from an examination of the books of the bank.

Tenth. That it be ascertained from an inspection of the account between the Sallisaw State Bank (the trustee in the deed of trust to secure the bond issues of the East Oklahoma Publishing Company) and City National Bank -what bonds, either of the first or second issue of the East Oklahoma Publishing Company, were handled or sold on commission or otherwise b}7 the City National Bank for account of Sallisaw State Bank.

Over the objections and exceptions of the defendants, the court granted the petition for the production of the books, papers and documents as prayed except as to the ninth paragraph and endeavored to limit the scope and effect of its order by certain preliminary directions providing- “that the accountant shall only examine so much of the books, papers and documents as necessary to obtain the information required, and may transcribe so much thereof as necessary or make memoranda or a summary thereof, and shall not transcribe, copy, or make memoranda or summary of any other matters than those specifically called for in the nine paragraphs hereinafter set out.” The accountant was further ordered, if, in his examination of the books, papers and documents, he should discover matters not related to, or mentioned in, the matters herein inquired of, he shall not disclose such matters to the plaintiffs, their counsel or any other person, and that a violation of this direction should be a contempt of court.

The order further provided that the examination called for should be made by the accountant in the bank at reasonable hours to suit the convenience of its officers and should be made in the presence of a representative of the bank and that a like procedure should be pursued in the examination of the books of the defendant Nakdimen, this examination to be either at his office in the bank or at any place most convenient to him with the right for him to be present in person or by a representative during the examination. It provided further that if the bank or Nakdimen should refuse access to any of the books, etc., which the accountant should consider material in his investigation, he should at once report said fact fully to the court.

The defendants brought this action against the chancellor praying for a writ of prohibition seeking to prevent the enforcement of the aforesaid order.

The majority of the court is of the opinion that this is a proper case for the writ prayed, because the trial court has exceeded its authority and there is no other remedy which will afford defendants protection against the wrong. As interpreted, the petition and the order of the court based thereon would subject the defendants and their affairs to an unwarrantable intrusion and investigation and affect not only the rights of the defendants themselves, but of many persons doing business with the defendant bank which the bank is entitled to have protected. It is thought that, from the very nature of the investigation sought, many matters would come under the observation of the accountant wholly unconnected with the matters in dispute in this case, and that, while the trial court has endeavored to limit the scope of the inquiry by the accountant and prescribes penalties for his failure to observe the directions of the court, these precautions are wholly inadequate if the accountant is minded to observe irrelevant matters and convey the information thus obtained to others. It is obvious that this could be done by the accountant in such subtle fashion that no proof could be made of his disobedience of the orders of the court, and at most but a well-grounded suspicion attach.

The view is taken that the petition fails to make a substantial showing that the books sought to be examined contain material evidence supporting the allegations of the complaint. No particular books are pointed out, but the petition asks and the court permits the accountant selected to range at will among the books and papers of the defendants to discover, if he can, evidence which plaintiffs suspect is contained in some book or books to support the allegations of their complaint. The opinion is that the effect of the court’s order would, and does, authorize a “fishing examination” and offends against the rule that the materiality of the books and papers is not a question to be decided by the applicant but rather by the court.

The rule against which the order is deemed to offend is cited by the defendants and is found at page 1092, 10 B. C. L., as follows : “But a party to a pending action has no right to call for books, papers and documents as to his adversary merely for the purpose of entering into a ‘fishing- examination’ of them. To authorize their production there must be a substantial showing that the book, paper or document sought for contains material evidence in support of the cause of action or defense of the party asking for it. A mere suspicion that it contains such evidence does not warrant an order for its production. The enactments upon the subject generally make, it a condition that the books, etc., required shall contain evidence relating to the merits of the case. ’ ’

Section 1393 of Elliott on Evidence provides: ‘ ‘ The fundamental requirement as to the sufficiency of the motion or petition is that it must be shown upon good and sufficient cause that the 'books, papers or documents sought to be produced or inspected contain evidence material and pertinent to the issues and on behalf of the applicant. * * * It is not sufficient to allege generally the materiality of the books or documents, as this would uot only be the averment of a conclusion, but would permit the question of materiality .to be decided by the applicant instead of by the court. Hence it is not sufficient to allege that such books or papers contain evidence relative to the merits of the action, but it must be made to appear wherein such relation consists. In other words, the rule, as stated by the court is: ‘It is well settled that an order for discovery and inspection will never be granted unless the necessity therefor is clearly shown.’ ”

And § 1396 of the same authority provides: “Another essential requirement of the motion or petition is that it shall definitely and sufficiently designate or describe the books, papers or documents required. A general reference is not sufficient; both the petition and the order should specify, with reasonable certainty, the book or paper which is to be produced.”

The view is taken .bv the majority that, if the petition was otherwise unobjectionable, it is premature. Plaintiffs should first endeavor to establish the allegations of their complaints by the testimony of witnesses and by an examination, by deposition or otherwise, of the defendant Nakdimen and the officers of the defendant bank, thereby laying a foundation for the request for the production and examination of the books. The rule stated in § 1410, Elliott on Evidence, is: “If the discovery is plainly attainable by competent and available testimony other than that of the party, a production of books should not be allowed without special circumstances. If it is attainable by an examination of the part}' as a witness, it should also be refused excexit upou special ground.”

It follows from the views expressed — which are those of the majority and not of the writer, and with which he does not agree, that the writ should be granted, and it is so ordered.


author: Baker, J.

text:
    Blocker v. Sewell.
    4-3724
    Opinion delivered November 5, 1934.

      James D. Shaver, James H. Williams and Will Steel, for appellants.

      Ben Garter, for appellees.
   Baker, J.

Citizens and taxpayers of Miller County filed their petition with the county clerk in that county to initiate a salary act for county officers. This salary act was filed in thirty-eight parts on September 4, 1934, and there was noted on the petitions a filing mark of the county'- judge of the same date it was filed with the county clerk.

On September 9 the clerk decided the sufficiency of the petitions and approved them, and on September 10 an order was made by the county court, directing the county clerk to give notice, over the signature of „the county judge and county clerk, by publication and directing the clerk to certify the submission of the proposed act to the county board of election commissioners of Miller County, Arkansas, with directions to submit to the electors of Miller County the said “initiative act No. 1 of Miller County, Arkansas. An act to fix the salaries and expenses of county officers and to fix the manner in which such compensations and salaries shall be paid and to reduce the costs of county government, and for other purposes.

“For initiative act No. 1 of Miller County, Arkansas,

“Against initiative act No. 1 of Miller County, Arkansas. ’ ’

The notice of publication was signed by Sewell as county judge and Ben Wilson as county clerk.

This suit filed in the Miller Chancery Court was instituted by certain citizens and taxpayers against Sew-ell, as county judge, and Wilson, as county clerk, and against the election commissioners of the county and tbeir successors, challenging- the sufficiency, legality and constitutionality of the salary act proposed to be submitted at the general election on November 6. The several objections urged in the complaint will appear, sufficiently in detail, in the opinion covering propositions urged in the brief.

A restraining order was prayed to prevent the certification and placing of the proposed act upon the ballot to be voted upon at the general election.

Certain other citizens and taxpayers intervened, made themselves parties, demurred specifically to each paragraph in the complaint and at the same time filed an answer. The answer denied all of the allegations of the complaint.

Ben Wilson, county clerk, was sworn and testified substantially to the facts as set forth in this statement, introducing a copy of the petition containing the affidavits of the parties circulating them and showing the respective filing marks of himself and the county judge and also the order of the county judge, the effect of which has been stated, and also the certificate of the clerk, upon his examination of the petitions, which certificate was dated the 10th day of September, and filed •with the petitions.. This certificate was to the effect that the petition bears the signature of 1,031 persons, shown by affidavit attached, to be legal and qualified voters and electors of Miller County, and further that in the last preceding general election in Miller County, Arkansas, the total vote cast for the circuit clerk of Miller County, Arkansas, was 663. His finding was that more than 1,031 legal voters had signed the initiative petitions, and that the petitions were sufficient to order said proposed act to be submitted to the people for adoption at the general election to be held in Miller County.

The first proposition argued in appellant’s brief is that there was no ballot title. The matter of a ballot title and the sufficiency thereof was decided by us in the case of Coleman v. Sherrill, ante p. 843. In that opinion we held that the title of the proposed act, as set forth in the petition, was a ballot title and that it was sufficient. The title of the proposed act in this case is essentially of the same form and effect, and it can not be helpful to render another opinion. The title of the proposed act is the ballot title, and is sufficient.

The next matter suggested is to the effect that there is no sufficient affidavit of the parties who circulated the petition. There were thirty-eight- separate parts of the petition filed, and, as we understand the record in this case, there was an affidavit attached to each of the thirty-eight parts thereof. Amendment No. 7 provides that each part of the petition shall have attached thereto the affidavit of the- persons circulating the same and to the effect that all signatures thereon were made in the presence of the affiant and that to the best of affiant’s knowledge and belief each signature is genuine and that the person signing is a legal voter. One affidavit to each of the parts is all Amendment No. 7 calls for, and there is no. requirement that each page of the- said petition shall have attached to it a separate affidavit, though, of course, if a part consisted of only one page, as circulated by one solicitor, then the person circulating the petition would make the affidavit as required. A part, however, may consist of many pages circulated by one person.

It is also objected in regard to the affidavit that it contains no expression of “belief that each signature is genuine.” The affiant did swear that each of the parties making the affidavits signed the petition, and each of the other petitioners signed his or her name- thereunto in his presence, and also the belief that each stated his or her name, residence, post office-, and voting precinct correctly, and that each of them is a legal voter in Miller County, Arkansas. This is not the exact language of that part of Amendment No. 7 under the head of “verification,” but this affidavit contains words of equal import or meaning. The affiant savs that they signed in his presence. His 'belief is that each has stated his or her name, residence, post office and voting precinct correctly and that each was a legal voter. If this affidavit means anything, it meets the objection made and the effect is that the signatures are genuine.

There is no such sanctity iu words that we feel impelled to enforce their use when substantially the same thing is otherwise stated. This court has watched with jealous care the enforcement of the. law of acknowledgments, but, in requiring always a substantial compliance with the statutes, has permitted the use of “signed said deed” for “executed the deed”; “freely and of her own consent and not by persuasion or compulsion by her husband” for “without compulsion or midue influence of her husband.” Little v. Dodge, 32 Ark. 454.

Chief Justice Hart, in Fidelity & Deposit Co. of Maryland v. Rieff, 181 Ark. 798, 803, 27 S. W. (2d) 1008, said: “As we have already seen, all that has ever been required with reference to the ordinary acknowledgment of a deed or mortgage is a substantial compliance with the statute.”

We said, in the case of Coleman v. Sherrill, ante p. 843, that Amendment No. 7, in order to effectuate the purposes intended, would be liberally construed. It must be seen that in the strict enforcement of statutes, mandatory in effect, substantial compliance only is meant, so that we hold a substantial compliance here must be sufficient. We have no desire to make a fetish of the word ‘ ‘ genuine. ’ ’

The next contention is that the petitions were not filed in time, and it is argued that under act 356 of 1927, page 1159, the petition shall be filed with the county judge, at least sixty days before the election at which it was to be submitted. Whether necessary or not, that was done. The petition was filed first with the county clerk, as provided in Amendment No. 7 and on the same day it bears the file marks of the county judge. The filing with the county clerk was on ¡September 4. This was certainty more than 60 days prior to the date of the election. The amendment provides that' the sufficiency of all such local petitions shall be decided, in the first instance, by the county clerk, and that matters of county initiative acts are subject to review by the chancery court. The county clerk acted upon the petition, approved it, held it sufficient, and, since Amendment No. 7 is self-executing, it could have been then placed upon the ballot without the aid of act 356 of 1927.

We are perfectly well aware of the fact that, act 356, above mentioned, provides that the petition shall be filed with the county .judge, and § 2 of that act provides that 'the county judge shall submit all such petitions to election commissions. Whatever force and effect the act may have as distinguished from the provisions of Amendment No. 7, the county judge, in addition to what the clerk did, acted upon the petitions, directing them to be submitted to the election commissioners, but it.is not necessary at this time that we decide anything with reference to act 356.

The proposed initiative act is criticized, and it is alleged that in its operation it will result in a diversion of taxes, contrary to constitutional provisions. That may or may not be true, but that question is not before us at this time for several reasons. The first is that the proposed act may not be adopted by Miller County. If it should be adopted and objections then be raised, and a case be presented upon the proposition as to a wrongful diversion of funds, that question will then be determined.

The only other proposition remaining is the fact that the petition for the proposed act asked that the act be submitted at the next general election to be held on November 5, 1934. Amendment No. 7 provides, of course, that measures to be initiated shall be submitted only at the general election. There is no election to be held on November 5, 1934. When the petitioners prayed for the submission of the act at the general election, they fixed the date, just as definitely as the date for the holding of the election is fixed by law. A mere, clerical error will not be allowed to defeat the measure when no prejudice could have possibly resulted.

We find no error in the- order and decree of the chancery pourt. The case is affirmed.


author: Johnson, C. J.

text:
    Conway County Bridge District v. Williams.
    4-3557
    Opinion delivered November 12, 1934.

      Owens \& Ehrmcm, E. L. McHcmey, Jr., and E. A. Williams, for Conway County District, appellants, and Hays $ Smallwood, Schott & Goodier, Reece Caudle and J. B. Ward, for Yell and Pope District, appellants.

      F. D. Majors, J. G. Rye, Audrey Strait and W. P. Strait, for appellees.
   Johnson, C. J.

Appellees, the county judge and certain citizens and taxpayers of Conway County, instituted this proceeding in the Pulaski Chancery Court against Roy Y. Leonard, State Treasurer, and the county treasurer of Conway County, to prohibit the respective treasurers paying over to Conway County Bridge District certain funds accumulated in the State Treasurer’s hands under authority of act 11 passed at the special extraordinary session of the General Assembly of 1934. The complaint alleged the source of the accumulated fund and that the disposition thereof as provided for in § 23 of said act, in .so far as it undertook to donate same to the Conway Comity Bridge District, was in violation of the 14th Amendment to the Constitution of 1874, which prohibits local legislation. Subsequently an intervention of certain interested parties was filed by Pope and Yell county citizens against Yell & Pope County Bridge District which sought similar relief. Thereafter, the Conway County Bridge District and Yell & Pope Bridge Districts intervened in said cause and asserted their respective interests in said fund, and in addition thereto denied the invalidity and unconstitutionality of § 23 of said act.

The case was submitted for trial and decree upon an agreed statement of facts and certain oral testimony then and there produced and heard, but we deem it unnecessary to here set out in detail the facts adduced. The chancellor determined that that portion of act 11 of 1934 contained in § 23 thereof, which undertook to allot a certain part of the county highway improvement funds to bridge districts was in violation of Amendment No. 14, and therefore unconstitutional and void, and thereupon permanently restrained and enjoined the disbursements of said fund or any part thereof to the two bridge districts, and this appeal comes therefrom.

Section 23 of act 11 of 1934, a part of which was declared unconstitutional and void by the trial court, reads as follows:

“Section 23. Paragraph (e) of § 1 of act No. 63 of the General Assembly, approved February 25, 1931, is amended to read as follows:
“(e) All net tax derived from motor vehicle fuel under the provisions of paragraph (c) of this! act shall be divided: Ninety-two point three per cent. •('92.3%■) shall be deemed State highway revenue, and seven point seven per cent. (7.7%) shall be deemed county highway improvement revenue, and shall be credited by the Treasurer of State to the ‘county highway fund.’ Said county highway fund shall be segregated, set apart and placed in trust for the sole, separate and exclusive use of the several counties of this State to be apportioned under the existing laws, and the State expressly covenants that it will not permit the percentage herein allotted to the county highway fund to be reduced. Providing that the refund going to any county in the State having a bridge district where the bridge is across a navigable stream, as defined by the Department of Commerce of the United States Government and is located not less than seven miles from the county seat of said county, and constitutes a continuation of a State highway, the funds going to the county under the terms of this act shall be allotted to the bridge commission to be applied to the retirement of the bridge district bonds, and the county treasurer shall pay such funds to the proper trustee for such application. Provided further that this amendment does not apply to toll bridges. Provided that one-half of the refund going to any other county in this State other than the counties herein classified or in which the refund is controlled by any existing legislation shall be allotted to the bridge commission of any bridge district where the bridge constructed by the district is across a navigable stream as defined by the Department of Commerce of the United States Government and constitutes a link in a State highway, and where said bridge is situated not less than one mile from the county seat. ’ ’

It appears from the section of the act just quoted that the Legislature divided the net tax derived from motor vehicle fuel into two funds, namely'’: State highway revenue and county highway improvement revenue. It also appears that the county highway improvement revenue as therein created is dedicated to the several counties of the State to be apportioned under existing laws, provided, however, the fund going to any county having a bridge district, where the bridge is across a navigable stream * * * and is located not less than seven miles from the county seat of said county and constitutes a continuation of a State highway, the funds going to the county under the terms of this act shall be allotted to the bridge commissioners to be applied to the retirement of the bridge bonds, and the county treasurer shall pay such funds to the proper trustee for such application. Provided further that this amendment does not apply to toll bridges, and provided further that one-half of the refund going to any other county in this State other than the counties herein classified or in which the refund is controlled by any existing legislation shall be allotted to the bridge commission of any bridge district where the bridge constructed by the district is across a navigable stream as defined by the Department of Commerce of the United States Government and constitutes a link in a State highway, and where said bridge is situated not less than one mile from the county seat.

From the language quoted, it definitely and certainly appears that the benefits granted by the State to bridge districts is restricted as follows: First, only to districts where the bridge spans a navigable stream; secondly, the bridge must not be within one mile of a county seat; third, such bridge must not be a toll bridge.

The restriction that the bridge of a benefited district must span a navigable stream localizes the benefits to such districts as border navigable streams, and we judicially know that many bridge districts in this State do not border such streams and will not do so within any reasonable future time. The restriction that the bridge in the district to be benefited must not be a toll bridge further restricts the applicability of said section by excluding from its benevolent purposes all bridge districts in the State which collect tolls. The further elimination of all districts where the bridge is situated within one mile of the county seat further restricts the applicability of the benefits of said section.

Appellants’ first contention is that the two bridge districts here under consideration, and which are benefited by § 23, are a part and parcel of the State highway system and therefore legislation in reference to such districts affects the people of the State as a whole and therefore such legislation is general in effect, though local in its immediate application. To support this contention, Waterman v. Hawkins, 75 Ark. 120, 86 S. W. 844, is urged upon us as authority therefor. This case determined only that statutes establishing or abolishing separate courts relate to the administration of justice and are therefore neither local nor special in their operation.

Moreover, the contention here urged was tacitly decided adversely to appellants’ contention in Board of Commissioners of Red River Bridge District v. Wood, 183 Ark. 1082, 40 S. W. (2d) 435, wherein we decided that an act of the General Assembly which was confined in its operation and effect to this bridge district was local and therefore void under the 14th Amendment. The similarity of the conditions dealt with in the Red River Bridge District case and those under consideration here may be summarized as follows: § 23 of act 11 of 1934 seeks to relieve taxpayers of the respective bridge districts from the legal obligation of paying a certain percentage of their assessments of benefits, whereas in the Red River Bridge District case it was sought to refund to taxpayers of the district certain benefits theretofore paid. Thus it definitely appears that the two acts have the identical purpose and effect, that of relieving taxpayers in a restricted area and excluding all other taxpayers not so fortunately situated, though within the general class.

Next, it is urged that the Legislature has the inherent power to make reasonable classifications and to pass laws applicable only to such designated class, conditioned only that such law must apply to all within the designated classification. We have so decided in many cases and among which are the following: McLaughlin v. Ford, 168 Ark. 1108, 273 S. W. 707; LeMaire v. Henderson, 174 Ark. 936, 298 S. W. 327; Knowlton v. Walton, ante p. 901, and cases therein cited. The rule thus announced is grounded upon the proposition that such classification does not permanently exclude other persons and things within the general class, but on the contrary is prospective in view that such persons or things temporarily excluded may in the future come within its operation.

Here the questions arise, first, does the provision here under consideration make a reasonable classification? and, secondly, does it apply to all within the general classification, or will it do so at any reasonable future time? Admittedly, no bridge district in this State may be benefited by § 23 unless the bridge spans a navigable stream, thereby, arbitrarily excluding all bridge districts in the State save those adjacent to or bordering upon such streams; and this is true, even though such bridge may be more than one miles from the county seat, and may not be a toll bridge. Also a bridge may not be a toll bridge and may be situated across a navigable stream, yet it is excluded if situated within one anile of the county seat. Moreover, the bridge may be more than one mile from the county seat and situated across a navigable stream, yet it is excluded from benefits under § 23 if it happens to be a toll bridge.

This suffices to show the unreasonable and arbitrary classification made by the Legislature and the subtle methods adopted to make local legislation appear in the guise of general enactment.

We .have uniformly held that-the subject of legislation, in order to be general law, must operate uniformly upon every person or thing of a designated class throughout the territorial limits of this State. Little Rock & Fort Smith Ry. Co. v. Hanniford, 49 Ark. 291, 5 S. W. 294, and Little Rock v. North Little Rock, 72 Ark. 195, 79 S. W. 785; Webb v. Adams, 180 Ark. 713, 23 S. W. 617; Board of Commissioners of Red River Bridge District v. Wood, supra.

Our holding* in Leonard v. Luxora, etc., 187 Ark. 599, 61 S. W. (2d) 70, is- decisive of the question of classification here under consideration as follows:

"There is nothing* in the terms of the act to distinguish Mississippi County from other counties in the State that have either a greater or less population, and have one or more judicial districts. There is no reason in the nature of things why an act of this kind should apply to Mississippi County and not to other counties in the State. It is therefore an arbitrary and unnatural classification, and there is no natural connection between counties having more than one judicial district and 65,000 population, and the division of the county highway funds. The act therefore cannot be upheld on the ground of classification.

In Webb v. Adams, supra, we had under consideration an act which from its title and terms appeared to be general in its operations and effect throughout the State, but a certain provision thereof exempted certain school districts situated in the.State, and we there held that the exemption rendered the act local in its application and effect, and therefore, under Amendment No. 14, unconstitutional and void.

For the reasons stated, we conclude that the legislative classification here under consideration was unreasonable and arbitrary and its effect was to exclude bridge districts located in this State which fall within the general classification of such districts and is therefore unwarranted.

Finally, it is insisted that the conclusion here reached nullifies and destroys the whole of § 23 of act 11 of 1934. Not so. Section 54 of act 11 of 1934 provides, if for any reason any section or provision of this act shall be held to be unconstitutional, it shall not affect the remainder of this act, etc. It therefore appears that the Legislature had in mind that some of the provisions or sections of said act might be declared unconstitutional and void by the courts and in advance evinced'its purpose to pass said act regardless of the conclusions reached by the courts. We think therefore that the Legislature would have passed act 11 of 1934 as readily without the provision herein held to be unconstitutional and void as it did with it'included. Alsup v. State, 178 Ark. 170, 10 S. W. (2d) 9.

Moreover, we have many times decided that where the unconstitutional portion of an act is severable, and there is a complete act without it, the fact that one section of one portion of it violates the Constitution does not necessarily invalidate the entire act. Cone v. Garner, 175 Ark. 860, 3 S. W. (2d) 1; Stanley v. Gates, 179 Ark. 886, 19 S. W. (2d) 1000.

For the reasons stated, the decree of the Pulaski Chancery Court is in all things affirmed.

Smith and MoHaney, JJ., dissent.


text:
    Kirby v. Kirby.
    4-3586
    Opinion delivered November 12, 1934.

      George R. Steel, for appellant.

      Tom Kiclcl, for appellee.
   Johnson, C. J.

The unfortunate marital troubles of appellant and appellee were thoroughly and sufficiently aired in the case of Kirby v. Kirby, 184 Ark. 532, 42 S. W. (2d) 995, and the curious are referred thereto for a complete history of the case. It will be noted in the opinion referred to that appellee was awarded the custody of the infant, Nelda Jean Kirby, with the right of visitation at all reasonable times by appellant, and appellant was directed to pay to appellee for the maintenance and support of said infant $15 monthly. To the credit of appellant, it may be said these payments have been promptly met up to this time. Subsequently to the rendition of the opinion, as aforesaid, appellant filed an independent suit for divorce, and a decree in this behalf was duly entered. This proceeding* was instituted by appellant against appellee in the Pike County Chancery Court, seeking a modification of the order previously referred to awarding the custody of the child to appellee and directed appellant to contribute $15 per month for the child’s maintenance. Testimony was heard upon the motion by the chancellor, and the previous order was modified to the extent of awarding to appellant the custody of the infant one week out of four, and by reducing the allowance of maintenance from $15 per month to $12.50 per month. Appellant, conceiving that he received insufficient relief, has appealed here.

It is the well-settled doctrine in this State that the chancellor, in awarding the custody of an infant child or in modifying such award thereafter, must keep in view primarily the welfare of the child, and should confide its custody to the parent most suitable therefor, the right of each parent to its custody being of equal dignity. Act 257 of 1921. Caldwell v. Caldwell, 156 Ark. 383, 246 S. W. 492; Jackson v. Jackson, 151 Ark. 9, 235 S. W. 47.

In Weatherton v. Taylor, 124 Ark. 579, 187 S. W. 450, we approved the rule as stated in 9 R. O. L., p. 476, as follows: “A decree fixing the custody of a child is, however, final on the conditions then existing, and should not be changed afterwards unless on altered conditions since the decree, or on material facts existing- at the time of the decree but unknown to the court, and then only for the welfare of the child.”

Without setting out in detail the testimony adduced upon the hearing for the modification of the previous order, it suffices to say that the only material changes established in the circumstances of the parties and the child are that the child is now almost four years of age and was only an infant at the time of the previous order, and the father or appellant has remarried.

We are unwilling to overturn the chancellor’s finding of fact in regard to the custody of the child upon the showing made. It is the uniform practice in this court that a chancellor’s finding- of fact will not be overturned on appeal unless found to be clearly against the preponderance of the testimony. Eureka Stone Co. v. First Christian Church, 86 Ark. 212, 110 S. W. 1042; Scott v. McCraw, Perkins & Webber Co., 119 Ark. 135, 177 S. W. 901; Vaughan v. C. R. I. &. P. Co., 120 Ark. 37, 179 S. W. 165.

No error appearing, the decree is affirmed.


author: Smith, J.

text:
    Farmers’ Bank & Trust Company v. Taylor.
    4-3587
    Opinion delivered November 12, 1934.

      McKay & McKay, for appellants.

      Hawkins & Keith, for appellees.
   Smith, J.

On November 27, 1922, Mrs. Clara Taylor borrowed $531 from the ¡Bank of Taylor, of Taylor, Arkansas, and to secure the payment thereof executed a deed of trust, by the terms of which she conveyed to a trustee for the bank three lots in the town of Taylor, upon which a small building was located. Before the maturity of the note, the Bank of Taylor borrowed $10,000 from the Farmers’ Bank & Trust Company, of Magnolia, Arkansas, and indorsed and delivered Mrs. Taylor’s note, along with other notes, as collateral security for that loan. About the time Mrs. Taylor’s note fell due, Romie Taylor, her husband, paid the amount thereof to the Bank of Taylor, and at the time of payment was advised that the bank did not have the note in its possession, but that the note would be obtained and delivered to him. He did not inquire where the note was, and was not advised. Soon thereafter the Bank of Taylor became insolvent, and was taken over by the State Banking Department for the purpose of liquidation, and the Farmers’ Bank & Trust Company notified Mrs. Taylor that it held this note as collateral'. The exact date when the Bank of Taylor was taken over for liquidation does not appear, but the payment by Mr. Taylor was made before that time.

The Farmers’ Bank & Trust Company filed suit against Mrs. Taylor on the note and prayed the foreclosure of the deed of trust securing it. M. E. Britt filed an intervention, and was made a party to this suit.

It appears that when Mrs. Taylor’s note was pledged by the Bank of Taylor, no marginal notation was made of that fact upon the record where the deed of trust was recorded. But it does appear that, when Mrs. Taylor’s husband made the payment above stated, the cashier of the Bank of Taylor indorsed payment and settlement of the note upon the deed of trust and delivered that instrument to Mr. Taylor as having been cancelled and satisfied, and on January 24, 1923, which appears to have been about the date of payment, the vice president and cashier of the Bank of Taylor made an indorsement upon the margin of the record where the deed of trust was recorded, which was duly attested by the clerk and recorder, reading as follows: “I hereby acknowledge receipt in full of the notes set up in this instrument and declare the lien created thereby fully satisfied and released, this the 24th day of January, 1923. (Signed) Bank of Taylor, by L. K. Welborn, Y. P. & Cash. Attest: Emmett Atkinson, Clerk.”

Mrs. Taylor testified that she thought the debt had been paid, and that she so advised Britt when she sold him the lots covered by the deed of trust. Britt admitted knowing that the deed of trust was of record, but was assured that the debt which it secured had been paid, and he thought Mr. Taylor was in possession of both the note and deed of trust. As a matter of fact, Taylor was in possession only of the deed of trust, but Britt testified: “I thought it was clear. I figured him having the note and mortgage and the record being satisfied, it was clear,” but before completing the purchase of the lots Britt went to the office of the clerk and recorder and read the marginal indorsement upon the record, set out above.

The court rendered judgment against Mrs. Taylor for the amount of the note, but refused to decree a foreclosure of the deed of trust, and the Farmers’ Bank & Trust Company has appealed from that decree. The judgment for the amount of the note is correct, and is not questioned.

We are also of the opinion that the court was correct in refusing to decree a foreclosure of the deed of trust. The case of Kinney v. North Memphis Savings Bank, 178 Ark. 716, 11 S. W. (2d) 486, which has several times been adhered to and followed, is decisive of the question. It was there said: “Section 2 of act 374 of 1917 (which appears as § 7399, Crawford & Moses’ Digest) gives to any person who, according to the face of the record, is the owner of any of the liens there mentioned, the right to satisfy the liens of record by indorsements on the margin of the record where the instrument is recorded, and, when this is done, the subsequent purchaser, mortgagee, or the judgment-creditor, is protected against such lien, ‘unless there shall appear on the margin of the record where such instrument is recorded a memorandum showing that the said mortgage, deed of trust, vendor’s lien, lien retained in deed or note, or other evidence of indebtedness secured thereby, has been transferred or assigned, which said memorandum shall be signed by the transferrer or assignor, giving the name of the transferee or assignee, together with the date of such transfer or assignment, said signature to be attested and dated by the clerk.’ * * * In other words, the assignee of the note or debt secured by the lien takes, by the assignment, the lien securing the debt, but, if he neglects to have indorsed on the margin of the record the memorandum showing that the lien has been transferred to him, he is subject to have his lien defeated if satisfaction of the lien is indorsed on the margin of the record by the apparent owner of the lien.” See also Rockford Trust Co. v. Purtrell, 183 Ark. 918, 39 S. W. (2d) 733; Vance v. White, 180 Ark. 470, 21 S. W. (2d) 853; Lehmann v. First National Bank of St. Louis, ante p. 604, Hughes on Arkansas Mortgages, § 205.

There having been no compliance with the require- • ments of § 7399, Crawford & Moses’ Digest, Britt acquired title to the lots free from the lien of the deed of trust, and the decree so adjudging is affirmed.


author: Humphreys, J.

text:
    Carter v. Wasson.
    4-3574
    Opinion delivered November 12, 1934.

      E. L. Garter, for appellants.

      George R. Steel, for appellee.
   Humphreys, J.

Appellants became the owners of a note and mortgage executed by W. H. Ferguson and wife to the Conservative Loan Company on January 25, 1931, and maturing on October 1, 1931. The land described in the mortgage as security for the debt is as follows:

Southwest quarter of the southwest quarter of section 35, township 8 south, range 28 west; the northwest quarter of the northeast quarter of section 2, township 9 south, range 28 west, situated in Howard County, Arkansas.

Appellant E. L. Carter, in his capacity as trustee, became the holder of a note and second mortgage executed by W. H. Ferguson and wife upon the same real estate.

Subsequently, W. H. Ferguson and wife executed a third mortgage upon the same lands to the Planters’ Bank & Trust Company to secure an indebtedness of $800 to it.

On July 19, 1933, the Planters’ Bank & Trust Company purchased a deed to the southwest quarter, southwest quarter, section 35, township 8 south, range 28 west, 40 acres, and the fractional northwest quarter, section 2, township 9 south, range 28 west, 145.01 acres, in Howard County, Arkansas, which had been forfeited for the nonpayment of taxes for the year 1930, said lands being a part of those described in the mortgage.

Appellants brought suit on July 19, 1933, in the chancery court of Howard County to foreclose the first and second mortgages and to obtain judgment for the amounts due on the indebtedness which each mortgage secured and made the State Bank Commissioner in charge of the Planters’ Bank & Trust Company a party to the suit, alleging that his interest was inferior to the mortgages held by the appellants. They alleged that the tax sale under which the State acquired title to a part of the lands described in the first and second mortgages was void.

The notes and mortgages were introduced, together with proof of the amount due upon each note. The records of the delinquent list of lands in the clerk’s office as advertised for sale were introduced in evidence without objection and are as follows:

Much evidence was introduced responsive to other allegations contained in the complaint of the invalidity of the tax sale which need not be set out and discussed, as we have concluded that the tax sales of the lands in question were void and that on that account the State acquired no title to them which it could convey to the Planters’ Bank & Trust Company. The original complaint and the amendment thereto did not specifically allege the invalidity of the tax sale on the ground of the insufficient description of the lands, but, at the conclusion of the testimony, they asked to amend their complaint in this particular. The court refused to allow the amendment or treat the complaint as amended to conform to the proof, which was error.

On a hearing of the cause, the court rendered a judgment for the amount due on the notes and entered a decree of foreclosure in favor of appellants against the northwest quarter, northeast quarter of section 2 aforesaid and found that, the tax sale was valid and quieted the title to the other lands described in said mortgages in appellee.

Appellants have 'prosecuted an appeal to this court from that part of the decree upholding the validity of the tax sale.

By reference to the list of delinquent lands set out above, it will be seen that no dittos appear opposite any of the lands listed and involved in this suit, and that there was a duplication in the assessment and sale of a part of the fractional northwest in what was supposed to be land in section 2, township 9, range 28 west. It appears that the northwest, northwest, 31 acres, was sold for a total tax of $7.32, and then that the entire fractional northwest 145.01 acres, was sold for $26.90, which was $7.32 more than the entire quarter should have been sold for. This rendered the sale of the entire quarter void.

On account of the error indicated, the decree is reversed, and the cause is Remanded with directions to also enter a decree of foreclosure in favor of appellants on the southwest quarter, southwest quarter, section 35, and the northwest quarter of section 2, all in township 9 south, range 28 west, in Howard County, Arkansas.


text:
    Dodd v. State.
    Crim. 3908
    Opinion delivered November 12, 1934.

      O. T. Ward, for appellant.

      Hal L. Norwood, Attorney General, and Pat Mehaffy, Assistant, for appellee.
   McHaney, J.

Appellant was indicted, tried, convicted and sentenced to the penitentiary for one year on a charge of assault to rob one Susie Lloyd. This appea] challenges the sufficiency of the evidence to support the verdict and judgment against him. The Attorney General has confessed error, and this confession must be sustained.

Mrs. Susie Lloyd, the prosecuting witness, testified as follows: “Yes, sir, and when he (appellant) came up tolable close to the front gate, I was on the porch and he said, ‘What are you doing with this big snake out here?’ and I said ‘I didn’t know there was one there,’ and he got a small stick and started to kill the snake and I gave him a big stick, I carried a big stick out to him and he killed the snake and came in and sat on the porch and sat there and talked awhile, — he talked a little while and after awhile he got up and went down the steps and he just slid his hand down on the banister and turned around, and when he got up and started out I got up and stepped over on the porch and he just turned around and put his hand there and says, ‘I want some money’ and 1 says, ‘I haven’t got no money.’ ‘Got no money,’ he says, ‘Oh yes, you have, I have been told,’ and I says, ‘I have not got no money,’ and he says, ‘Oh, yes, you have and you will have to get it, I want five dollars,’ and don’t know how many times he repeated it and I looked down toward the road and I saw some one at the gate, and I said, ‘I see some one at the gate.’ ” 'She further testified that he had the club with which he killed the snake in his hand, but did not make any motion with the club and was digging with the stick in the ground while he was demanding the money; that he was there perhaps a half hour talking to her before he said anything about wanting money, never did use any rough language or do anything at all to force her to give him the money. He used no force or violence, nor did he commit any overt act in attempting to get the money. He made no use of the stick that would constitute an assault, nor did he threaten to do so in any way.

Our statute, § 2330, Crawford & Moses’ Digest, defines assault as follows: “An assault is an unlawful attempt, coupled .with present ability, to commit a violent injury on the person of another. ’ ’

This court held in Wells v. State, 108 Ark. 312, 157 S. W. 389, that drawing a knife and advancing toward the prosecuting' witness constitutes an assault, although the prosecuting witness fled and the defendant did not follow. In this case, while appellant held the stick with which he killed the snake, it is' shown by the prosecuting witness that he made no attempt to use it, nor did he draw the stick back as if to inflict an injury, or advance upon her with the drawn stick. In fact, it is not shown that he was, at any time after demanding the money from her, within striking distance of her. In other words, there must be some overt act in execution of his purpose to rob. As said by this court in Johnson v. State, 132 Ark. 130, 200 S. W. 982. “Mere preparation for an assault does not complete the offense, but any overt act in partial execution of the design to make an assault completes the offense.”

In 2 E. 'C. L., § 9, p. 533, the rule is stated as follows: “In order to constitute an assault, there must be an overt act or an attempt, or the unequivocal appearance of an attempt, with force and violence, to do physical injury to the person of another. The act'must be such as will convey to the mind of the other person a well grounded apprehension of personal injury. It is difficult in practice to draw the precise line which separates violence menaced from violence begun to be executed. It may safely be stated, however, that where an unequivocal purpose of violence is accompanied by an act which, if not stopped or diverted, will be followed by personal injury, the execution of the purpose is then begun and the battery is attempted. This principle has been adopted as the correct exposition of the law of assault. There must therefore be not only threatening words or violence menaced, but the defendant must have committed some act in execution of his purpose. It is not necessary at all that his words should be accompanied or followed by an actual battery, for a mere-assault excludes the idea of a battery, but he must either offer to do violence, as by drawing back his fist or raising a stick, or attempt to do it, as by aiming a blow at another which does not take effect because it is warded off by a third person, or by shooting at another and missing the mark.”

Under this rule, it is clear that appellant has been convicted of the crime of assault to rob without substantial evidence to support the charge. The confession of error of the Attorney General must be sustained, and the judgment of conviction be reversed, and the cause remanded for a new trial.

It is so ordered.