text:
    Kansas City Fibre Box Company v. F. Burkart Manufacturing Company.
    Opinion delivered November 16, 1931.

      William G. Holt and Carmichael & Hendricks, for appellant.

      8am T. Poe, Tom Poe and McDonald Poe, for appellee.
   Mehaffy, J.

The appellee brought suit in replevin against W. E. Smith, alleging that it was a Missouri corporation authorized to do business in Arkansas, and that it was the owner and entitled to the immediate possession of 375,727 feet of cottonwood lumber located and stacked on section 12, township 2 south, range 11 west, in Pulaski County; that said lumber was of the value of $22.50 per thousand feet, or a total value of $8,453.85; that W. E. Smith was in possession of all the lumber described, and that appellee had been damaged in the sum of $2,500, and that its cause of action accrued within one year, and prayed for recovery of the lumber and $.2,500 damages. An affidavit in proper form to obtain order of delivery was filed.

W. E. Smith answered, denying.that appellee was the owner and entitled to the immediate possession of the lumber mentioned in the complaint, and denied that he was in unlawful possession of same. He stated that he was not the owner of said property; that said lumber had been sold to the Kansas City Fibre Box Company long-before any controversy arose; that said lumber had been checked up by it and taken into its possession, and that bill of sale had been made and delivered; that the Kansas City Fibre Box Company had agreed to buy his entire output; and that the Kansas City Fibre Box Company was the real party in interest and is a necessary party to the suit.

The Kansas City Fibre Box Company filed a petition to be made a party defendant. It stated that it was a corporation organized under the laws of Ohio, doing-business in the State of Kansas, and that it was the owner of all the lumber seized and replevied in this case and now claimed to be held by the appellee; that the petitioner is the real party in interest and that it was necessary that it be made a party in order that justice might be done; that it was willing to make a bond and comply with the order of the court.

Appellee had filed bond, and the property described in appellee’s complaint had been taken by the sheriff and delivered to the appellee. The court ordered that appellant be made a party and permitted to give bond in the sum of $18,000 within 48 hours.

The appellant executed bond, and the lumber was delivered to it, and by it shipped out of the State and sold.

The jury returned a verdict in favor of appellee for the possession of the property or its value, $8,446.89, and judgment was entered accordingly. The case is here on appeal.

The following agreement was entered into: “It is agreed by and between Sam T. Poe and Tom Poe, attorneys for plaintiff, and Carmichael & Hendricks, attorneys for the defendant and for the intervener, that plaintiff’s deraignment of title to the fractional east half, northwest quarter, section 12, fractional northeast quarter of section 12, fraction north half, southeast quarter, section 12, all in township 2 south, range 11 west, heretofore filed in this case may be introduced in evidence as deraigned with the same effect as if plaintiff had introduced certified copies of all instruments of conveyance as set out in the deraignment of title; and that the defendant and the intervener may introduce in evidence deed, or copy thereof, from Charles W. W. Hogue to John Kaufman, dated June 9,1900; and special warranty deed, or copy thereof, from John A. Kaufman and wife, Marguerite, George K. Kaufman and wife, Nettie May, to W. A. Case, George R. Case and H. R. Case, dated January 23, 1929.

It is expressly agreed that all other rights or evidence of the parties may be introduced subject to objection, and that this agreement is made for the purpose of saving expense.

There was then introduced in evidence a decree of the Pulaski Chancery Court, entered February 20,1890, in an action between Sue E. Banjamin v. D. F. Rose et al., also a decree of the Pulaski Chancery Court entered on January 22,1927, in the case of F. Burkart Mfg. Co. v. Oscar Winn et al.

The controversy is with reference to the ownership of land and possession of the land from which the lumber was cut. It is claimed by the appellee that it is the owner of sections 12 and 13, and the Cases, who sold the timber to Smith, claim to be the owners of section 13.

Appellees claimed, and introduced evidence to show, that there were three tracts of original land in section 12, and that the timber was cut on accretions to these original tracts.

The evidence on behalf of appellees .showed that it was the owner and in possesson of the land from which the timber was cut. This was contradicted by evidence offered by the appellant. It would serve no useful purpose to set out the evidence in full. It was in conflict, and therefore a question for the jury. The timber in question was cut from land which at one time formed the bed of the Arkansas River.

It is first contended by the appellant that the appellee claims without any evidence that this land was not formed by accretion to Hogue Island or any other land in section 13, but was formed by accretion to section 12.

Martin testified that he had known the land since 1912; that he made a survey for Dan Rose, who owned the property at that time; he had been over and around there a number of times. In 1826, when the Government made a survey, there was large timber growing there. Martin, from the map and decree, pointed out the lands and showed which was accretion to a portion of section 12. He also pointed out where Hogue Island was located, and pointed the particular land in 12, 13 and 14, and stated that it was allotted to Mr. Rose long before Hogue Island had accreted to his land; that this was included in the survey ordered by the chancery court in 1890,- also that everything in the red line was accretion; pointed out the three pieces of original land in section 12, and testified particularly as to the description of the original land and the accretion.

There is no dispute about the law with reference to accretion. The appellant calls attention to the case of Nix v. Pfeifer, 73 Ark. 199, 83 S. W. 951, and says that the burden was upon appellee, and that appellant’s witnesses should be believed and accredited more than the others, because they knew what they were talking about. The case of Nix v. Pfeifer, supra, was an appeal from the chancery court, and was therefore tried here de novo.

The case at bar was tried in the circuit court, and the questions of fact submitted to the jury, and the rule here is that, if there is any substantial evidence to support the verdict of the jury, it is binding here, although the preponderance of the evidence may appear to the court to be against the verdict of the jury. It is the province of the jury to decide questions of fact; they are the judges, not only of the credibility of the witnesses, but the weight to be given to their testimony. The principles of law are well settled.

As was said in the case of Nix v. Pfeifer, supra: “The law governing the case is clearly established and entirely free from difficulty, and we need search no further than the decisions of this court to determine the rights of riparian landowners so far as the questions involved in this suit are concerned.

“Land formed by gradual and imperceptible accretion or by gradual recession of the water, belongs to the owner of the contiguous land to Which the addition is made. The river line is the natural boundary, and its gradual advance or retreat carries the owner’s line with it, except in case of an avulsion, or sudden or perceptible change of the water course, in which latter case the line remains at the old water line, and becomes fixed 'by it, not subject to further change by the caprice of the river.’’’ Nix v. Pfeifer, 73 Ark. 199, 83 S. W. 951.

We deem it unnecessary to call attention to further authorities as to what constitutes accretion, not only because it is so well settled, but because there is no dispute about the law.

It is next contended by the appellant that the 'Cases held the land from which the timber was cut in adverse possession at the time the timber was cut. We think the overwhelming weight of the evidence shows that the land from which the timber was cut was not held in adverse possession. Smith and Case both testified as to the timber cut on section 12. Smith said it was g’ood timber, and that he was going to take a chance. The letter written by Poe to Case, and Case’s reply, clearly show that, when Case built his fence, he was not claiming the land or the timber, but built the fence for the purpose of pasturing his stock. At any rate, it was a question of fact as to whether they held it in adverse possession, and the jury’s finding on this question is conclusive.

The court gave, at the request of appellant, the following instruction: “You are instructed, if you find from the evidence that the Cases sold the timber to the defendant, Smith, or if you find they are not complaining about the timber Smith cut, although it was not included in Smith’s deed, and find that the Cases are in adverse possession of the land from which the timber was cut and were so in adverse possession at the time of the cutting, to find for the defendant and the intervener.”

Since that question was settled against appellant’s contention, it becomes unnecessary to discuss or decide the question whether replevin can be maintained for timber or lumber, cut from land in adverse possession of another.

The next contention of appellant is that the measure of damages was the stumpag'e value, instead of the value at the mill. Assuming that the land from'which the timber was cut belonged to the appellee, as the jury found, and taking into consideration the letters heretofore referred to, and the fact that the land was fenced some years ago by the appellee, and that appellant, without right and as to a portion of the timber without any claim of right, but merely taking a chance because it was good timber, we think the proper measure of damages was its value in its improved state.

If this were not true, a trespasser or wrongdoer who wished to purchase timber from an owner who did not want to sell, could wrongfully cut the timber, convert the lumber to his own use, and pay for the stumpage value, thereby wrongfully depriving the owner of his property.

The law is well settled in this State, that where timber is cut by an innocent trespasser, that is, where the trespasser acts in good faith, believing he has a right to cut the timber, then the stumpage value would be the proper measure of damages; but it is equally well settled that, where a trespasser who does not act in good faith, and is not an innocent trespasser takes timber from another’s land, the wrongdoer is liable for the value of the timber so taken, in its improved state.

The case of Eaton v. Langley, 65 Ark. 448, 47 S. W. 123, 42 L. R. A. 474. deals with the question of an innocent trespasser, and, after deciding what the measure of damages is in that case, the court said: “Hence the law protects the unintentional trespasser in such cases 'by limiting the right of the owner to recover. * '* * As to the extent of this limitation, the authorities are not agreed. But we think that, inasmuch as this is an exception to the general rule made for the purpose of protecting the unintentional trespasser, it should be allowed to prevail onlv to the extent it is necessary to give protection, and that the owner in actions for possession of personal property in the new form into which it has been converted, inadvertently, under a bona fide but mistaken belief of right, in case a delivery cannot be made, is entitled to recover the value of the property in its new form, less the labor and material expended in transforming it, provided the expenditures do not exceed the increase in valne which was added to the trangformation, in which event he should recover the value of the property in its new form, less the increase.”

It is clear from the opinion in the case above mentioned that it has, and was intended to have, application to an innocent trespasser. The evidence in this case we think clearly shows that the timber was not cut in good faith, and shows that Smith was not an innocent trespasser.

We think the correct rule is stated in 1 O. J. 389: “A wilful trespasser is not entitled to any compensation, allowance, or mitigation of damages on account of the labor expended or materials added by him in improving or increasing the value of the property. * * * So, if the owner has regained the possession of his property in its improved condition, such trespasser cannot maintain an action against him to recover for such labor or materials; and if the owner brings an action to recover the property, he is, if entitled to recover at all, entitled to recover it in the condition in which he finds it, and defendant cannot claim any compensation or allowance for his labor or materials. ’ ’

The authorities do not seem to be in entire harmony where the action is replevin and the wrongdoer has disposed of the property so that it cannot be delivered, but we think the rule here announced is the only just and fair rule where the property was not taken in good faith.

Appellant states that Smith testified that he did not ■know, until the trial of the case, of Mr. White’s statement that he was going to cut on 12. lie might not have known that, that is, he might not have known where 12 or any other particular section was, but he admits himself that he did not try to find out where the lines were; he had, through White, purchased the timber, and he knew that he did not have any right to cut on 12. He also testified that he did not have the line run until after the cutting was done. We think the evidence clearly shows that Smith was not an innocent trespasser. We agree with appellant that it has the same right that W. E. Smith would have had, but we have already shown that W. E. Smith had no right.

It is next contended by appellant that the court erred in giving instructions 1, 2, 3, 5, 6 and 11.

Instruction No. 1 is as follows: “If you find from the preponderance of the evidence, under the instructions of the court that in 1890 and ever since that time, and prior thereto, there were three tracts of original land in section 12, township 2 south, range 11 west, in Pulaski County, Arkansas, described as follows, to-wit: North half southeast quarter, east half northwest quarter and fractional northeast quarter, and that all of the land lying between the above described tracts and the eastern, western and southern boundaries of the land from which the timber, out of which the lumber in controversy was made, was cut and removed, had been washed away and accreted or built back to the three above described tracts of land, and that such accretions include all the land from which the timber, out of which the lumber in controversy was made, was cut and removed, and that plaintiff owned the three above described tracts, and the accretions belonging thereto, and was entitled to the possession of same at the time the timber was out and removed therefrom and now owns said land, then you are instructed to find for plaintiff; unless you find the land from which the timber, out of which the lumber in controversy was made, was cut and removed, was accretion to a tract of original land in section 13 or 18, or unless you find that W. A. Case and others were in good faith asserting an adverse claim of ownership to the lands from which the timber was cut and were in actual possession thereof, lawfully obtained, when the timber was cut.”

We do not think that this instruction is either confusing or contradictory, but it was as favorable to appellant as it had any right to ask. The appellant objected especially for the reason that appellee cannot accrete except toward the now river as presently located; that the original land in 1890 was accretion and not the basis for accretion; that prior' to that time the Cases, successors in title, had title and possession to the land.

These were questions of fact settled by the verdict of the jury.

Appellant argues that said instruction was erroneous because it attempts to state too many of the facts and ignores other facts. In the first place, we do not think the instruction is open to this objection, and, in the next place, if it had been, appellant should have made this specific objection, which it did not do.

Instruction No. 2 reads as follows: “You are instructed that, if you find from a preponderance of the evidence, under the instructions of the court, that W. A. Case and others in building the fence built the fence with no intention of asserting any claim of title to the land across or upon which it was built adverse to plaintiff, F. Burkart Manufacturing Company, and that W. A. Case and others only intended to use the property for pasturage purposes, and that at the time the fence was built, or thereafter, W. S. Case expressly recognized the title of plaintiff, F. Burkart Manufacturing Company, and such possession, use and occupancy of the land as W. A. Case may have obtained thereby did not constitute adverse possession, unless W. A. Case brought the knowledge home to plaintiff, F. Burkart Manufacturing Company, by word or act that he claimed it adversely to plaintiff, F. Burkart Manufacturing Company, and for himself.

“You are also instructed that the burden is on defendant and the intervener to show by a preponderance of the evidence W. A. Case gave notice to plaintiff, F. Burkart Manufacturing Company, of his adverse claim.”

The specific objection to this instruction was that the Cases did not have to occupy the property for the full period of seven years if they were in actual, open, notorious possession for any length of time, etc. The finding by the court that the Cases were not in adverse possession answers this objection. We think the evidence conclusively shows that the Cases were not holding this land in adverse possession.

Instruction No. 3 reads as follows: “If you find from a preponderance of the evidence, under the instruc tions of the court, that plaintiff, F. Burkart Manufacturing Company, was in actual possession of the land from which the timber was cut by defendant, W. E. Smith, and out of which the lumber involved herein was made, and that plaintiff had owned the land since July 8, 1918, and had it inclosed with a fence, and that defendant, W. E. Smith, and the intervener, Kansas City Fibre Bos Company, or their grantors, W. A. Case, and others, broke through the inclosure against the consent of plaintiff, the entry was unlawful and such entry and subsequent possession as may have been obtained thereby did not dispossess nor oust the possession of plaintiff, unless you find that W. A. Case was already in possession of the land.”

The specific objection to this instruction was that there could be no unlawful fence breaking where there was not an inclosure. The undisputed evidence shows that the Cases did cut the fence. It is true the Cases had built a fence there, but, as we have already shown, Case testified that he did it for the purpose of using it as a pasture, and he was not claiming the timber.

Instruction 5 reads as follows: “The court instructs the jury that the defense of adverse possession is an affirmative defense, and the burden of proof is on the defendant and intervener to establish such adverse possession by a preponderance of the evidence.”

Number 6 reads as follows: “If you find from a preponderance of the evidence, under the instructions of the court, that plaintiff, F. Burkart Manufacturing Company, was the owner and entitled to the possession of the land from which the timber, out of which the lumber in controversy was made was cut and removed at the time the timber was cut and removed from the land, you are instructed to find for plaintiff for the possession of the lumber you find was cut and removed or its market value in its improved state, at the time of the filing of this suit, at whatever price or value you find the evidence in this case shows that lumber was worth at the mill when this suit was filed.”

Number 11 reads as follows: 1 ‘ The word ‘ accretion ’ means the slowly and imperceptible building to original lands by the water receding therefrom and filling in by deposits of sand, mud, or vegetation which gradually and slowly raises the surface of the lands and thereby brings it above water level. The accretion must be toward the river at the time the accretion is added. ’ ’

We have carefully considered all the instructions, and, when considered as a whole, they constitute a correct guide for the jury.

It is next contended by the appellant that the verdict is excessive, and that no attention was paid to the fact that it cost $5 per thousand to haul the lumber from the yard to the railroad. The court, in instruction No. 6, told the jury that, if they should find for the appellee, their verdict should be for the possession of the lumber, or its market value at the mill. This was a clear statement to the jury that they should find the value of the lumber at the mill.

Witness Denison testified that the lumber was worth $25 per thousand feet at the mill and $30 per thousand at the railroad.

Appellant’s witnesses testified that the stumpage value was $3.50, and that appellant had paid Smith $17.50 on the yard, and that it was worth $22.50 on 'board the cars.

It thus appears that there was a conflict in the evidence as to the value, ranging from $17.50 on the yard to $25 per thousand on the yard, and the verdict of the jury was necessarily based on the evidence of the value on the yard. They were expressly told in the instructions that they must do this.

Instruction No. 8, requested by appellant, told the jury that, if appellee recovered, it could only recover the lumber stacked on section 12 at the time the suit was brought, and that it was not entitled to recover this unless it showed that the particular lumber belonged to it and was in its possession.

Appellant finally contends that its peremptory instructions should have been given. What we have already said answers this contention.

The weight of the evidence and the credibility of the witnesses was for the jury, and they found that the appellee was the owner of the land from which the timber was cut, and that Smith went upon said land and cut the timber without right.

Appellee prosecutes a cross-appeal and asks a modification of the judgment, claiming that he is entitled to interest, and calls attention to the case of Bradley Lumber Co. v. Hamilton, 117 Ark. 127, 173 S. W. 850.

In the Bradley Lumber Company case the court said, referring to another case: “In that case the court held that, where damages were capable of ascertainment by reference to reasonably certain market values and various items of damage have been duly and adequately presented, and payment demanded before suit is commenced, the claimant is entitled to interest from the time of such demand.” The facts in this case do not bring it within this rule.

In the case of Griffith v. Ayer-Lord Tie Co., 109 Ark. 223, 159 S. W. 218, the court held that the instrument under consideration conveyed the absolute title to the appellee, and that he was therefore entitled to recover the value with 6 per cent, interest.

In the instant case, no demand was made for the payment of the timber, but it was simply a suit in replevin, the purpose of which was' to recover the timber, and the statute provides that in suits of this character the jury must assess the value of the property as also the damages for the taking or detention wherever by their verdict there will be a judgment for the return or the recovery of the property.

■Section 8654 provides that a judgment for the defendant may be for the return of the property or its value in case the property cannot be had, and damages for the taking and withholding of the property.

The appellee in this case brought suit for the recovery of the property and damages for its detention. It had the right to introduce proof to show it had been damaged by the wrongful taking and detention of the property, but it was not entitled in this case to recover interest. Brown v. Vaughan, ante p. 364.

The judgment is affirmed, both on appeal, and cross-appeal.


source: Caselaw Access Project

author: Hart, C. J.,

license: Public Domain

text:
    Quaile & Company v. William Kelly Milling Company.
    Opinion delivered November 23, 1931.

      Evans é Evans, for appellant.

      Cochran •& Arnett and C. E. Ghalfant, for appellee.
   Hart, C. J.,

(after stating the facts). At the outset it may be stated that the contract was reduced to writing and signed by the parties. It was contemplated that the written contract should be confirmed at the home office of appellee, and this was done both by telegram and by letter when the contract was received by appellee at its home office. It is true that a member of the firm of appellants testified that it was also intended that appellant should sign the confirmation of the contract, and that this was never done. This evidence was not admissible because it tended to contradict and vary the terms of a valid and unambiguous written contract which had been signed by the parties and was complete in itself. Colonial & United States Mortgage Co. v. Jeter, 71 Ark. 185, 71 S. W. 945; Ogletree v. Smith, 176 Ark. 597, 3 S. W. (2d) 683; and Wright v. Marshall, 382 Ark. 890, 33 S. W. (2d) 43.

It is earnestly insisted by counsel for appellants, however, that the damage clause of the contract, which forms the basis of this lawsuit, should be construed as a penalty and not as liquidated damages. The general rule is that contracts for liquidated damages, when reasonable in their character are not to be regarded as penalties and •may be enforced between the parties. But agreements to pay fixed sums, plainly without relation to any probable damage which may follow a breach, will not be enforced. Kothe v. Taylor, 280 U. S. 224, 50 S. Ct. 142; and Robbins v. Plant, 174 Ark. 639, 297 S. W. 1027, 59 A. L. R. 1128.

There is no sound reason why persons capable of contracting may not agree upon the subject of liquidated damages when fairly entered into with the view to compensation for anticipated loss. 'So it is generally held that, where the intention, of the parties on this point is clearly ascertained from the written contract, effect will be given to the provision for liquidated damages where such damages are uncertain in nature or amount, or difficult to ascertain, or where the amount stipulated for is not so greatly disproportionate to the damage which might result from the failure of the seller to deliver the property as to show that the parties must have intended a penalty, and could not have meant liquidated damages. There must be an element of uncertainty and the apparent'absence of any reasonable connection between the method of computation of the loss and the actual performance of the contract. In other words the parties under the law may contract as to the measure of damages where the liquidation bears a reasonable relation to the probable damages for the breach.

The evidence in the present case is uncontradicted that the parties contemplated that the seller should manufacture a particular brand of flour and deliver it to the buyer. The price of wheat fluctuates greatly, and it was necessary for the seller to buy an amount of wheat necessary to cover the contract and carry it until the time came for manufacturing the flour in order that it might not suffer great loss. Orders were taken to the end that the mill would be kept busy during the year, filling the contracts as they came due. The contract was not for the sale and delivery of flour by the seller, which was-purchased in the open market and delivered to the buyer, but it was a contract for the manufacture of a certain brand of flour from wheat. Therefore, wheat was the basic raw material; and, inasmuch as the price of it fluctuated greatly, what damages might be suffered from the failure on the part of the buyer to carry out his part of the contract varied greatly and were uncertain.

It was said in Sheffield-King Milling Co. v. Domestic Science Braking Co., 95 Ohio St. 180, 115 N. E. 1014, by the Supreme Court of Ohio:

“The parties agreed that wheat, the thing from which the flour was to be made, should be the basis upon which to calculate the damages. They could, of course, have agreed that the flour should be such basis, but they did not do so. That was a matter for them to agree about. They did not fix an arbitrary lump sum which might turn out to be wholly inequitable, but fixed a method, the chief element of which was the price of wheat from which the flour was to be made, a matter not- within the control of either. In this situation, when the plaintiff proved it had performed the terms of the contract on its part, had purchased the necessary wheat, and showed the damages that had accrued on the basis agreed on, it was entitled to recover.”

In view of the situation of the parties and the surrounding circumstances, it cannot be said that the stipulated damages appear to be greatly in excess of the damages sustained or to have no relation thereto. The surrounding circumstances indicate that it would be necessary to purchase wheat and store it until the time to manufacture it into flour, and also to consider the cost of manufacturing the wheat into flour. It is a matter of common knowledge that the price of wheat fluctuates greatly, and that the cost of running a mill or manufacturing plant would be- greatly increased where it was necessary -for it to be idle at uncertain intervals. Similar provisions for liquidated damages in contracts for the manufacture and sale of flour have usually been sustained. International Milling Co. v. Reierson, (S. D.) 225 N. W. 218, and cases cited; Yera, Andrews & Thurston, Inc., v. Randozzo Macaroni Mfg. Co., 315 Mo. 927, 288 S. W. 20, and cases cited; Sheffield-King Milling Co. v. Jacobs, 170 Wis. 389, 175 N. W. 796; Larabee Flour Mills Co. v. Carignano, 49 Fed. (2d) 796; and Rock v. Gaede, 111 Kan. 214, 207 Pac. 323, 27 A. L. R. 1152.

In this connection we call attention to the case of Kirchman v. Tuffli Brothers Pig Iron & Coke Co., 92 Ark. 111, 122 S. W. 239, where it was held that, upon a breach by the vendee in a contract for the sale of goods, the general rule is that the measure of the vendor’s damages is the difference between the price fixed by the contract and the market value of the goods at the time and place of delivery, provided the contract price exceeds such market value.

That principle of law would apply here, if there had been ho valid contract for stipulated damages, and it might be said to apply in any event, where no steps had been taken in the performance of the contract, and no expense had been incurred. If there had been a breach of the contract in the present case before the seller had gone to the expense of purchasing wheat to be used in the fulfillment of its contract, then the principle of law just referred to would govern. But, as already pointed out, the seller, as soon as the contract was executed, purchased sufficient wheat to cover the terms of its contract with the buyer, and kept it on hand until the contract was terminated because the buyer refused to send shipping instructions to the seller. The undisputed evidence shows that the wheat was not sold by the seller until the contract was terminated.

On the cross-appeal, but little need be said. It appears from the testimony that the salesman of appellee never received any commission for the sale made to appellants, and contemplated none until the flour was delivered. Therefore, the court properly held that the seller was not entitled to recover under clause (b), twenty cents per barrel as the cost of selling.

Therefore the decree will be affirmed, both on the appeal and the cross-appeal.


text:
    Missouri Pacific Railroad Company v. Rogers.
    Opinion delivered November 23, 1931.

      Titos. B. Pryor and II. L. Ponder, for appellant.

      Miller & Tingling and Tom W. Campbell, for. appellee.
   Hart, C. J.,

(after stating the facts). This case was not brought under the lookout statute or under the failure of the railroad to give the statutory signals by ringing the bell or sounding the whistle for a public crossing. It was based upon the alleged negligence of the railroad company at common law in the operation of its train as it approached the public crossing in the town of Garner and struck and killed Mrs. Rogers while she was on the public crossing there going across the railroad tracks, and also upon the doctrine of discovered peril.

In a case note to 7 Ann. Cas., at page 990, in discussing the question of the speed of the train as negligence in the absence of a prohibitory statute in connection with precautions, the annotator announces the general rule to be as follows: “Where it appears that no warning was given of the approach of a train to a crossing, the speed at which such train was moving is an essential element for the consideration of the jury in determining whether the company used due care under the circumstances.” 22 R. C. L., § 243, p. 1012, and 52 C. J., $ 1527, pp. 242, 244.

In discussing the same question in Ann. Cas. 1914B, at page G04, it was said that recent cases are in accord to the effect that, where no warning is given of the approach of a train to a crossing, the speed at which the train is moving is of material consideration on the question of negligence. The annotator further stated that the relation which the speed of a train bears to the various precautions which may be taken to avert an accident at a crossing was well stated in Louisville, H. & St. L. Ry. Go. v. Lyons, 146 Ky. 603, 143 S. W. 31, where the court said:

“The lookout answers one purpose, the warning another, and the control of the speed yet another; and it often happens that the observance of either without the observance of all will not afford the required or indeed any protection. The lookout is primarily to enable the trainmen to control the movement of the train when they discover danger, while the warning is to give the traveler notice to keep out of the way, and the control of the speed is designed to make both the lookout and the warning more effective. In this case, for example, the fact that the engineer was keeping a lookout did not do any good, as at the speed the train was going he did not discover the peril of appellee in time to warn her of danger or avoid the accident.”

Among the numerous cases cited in favor of the rule laid down by the annotator is St. L. I. M. & S. Ry. Co. v. Kimbrell, 111 Ark. 134, 163 S. W. 513. In that case, the court said that the unusual speed of the train was a proper element of consideration under the circumstances of the case, although the speed of the train alone would not be sufficient to establish liability if all other precautions were observed by those in charge of the train. It is true that this case was decided after the passage of our lookout statute and after the passage of our statute requiring the blowing of the whistle and the ringing of the bell for a certain stated period before reaching a crossing; but the principle would be the same. In the absence of a statute requiring such provisions to be given, the railroad would not be allowed to operate its train at a rapid rate of speed over a public crossing in a town or a village where it might be supposed that people would be constantly going across the tracks at a public crossing without giving any warning or signal of any kind of its approach. In that ease, the court recognized that, when the accident happens in a populous town, the jury might find that it constituted negligence to run the train at a rapid rate of speed without giving any kind of warning of its approach.

This same rule was again recognized upon the second appeal in that case, reported in 117 Ark. 457, 174 S. W. 1183. Where public necessity and convenience may require the operation of trains at a high rate of speed through cities, and towns, yet such speed may be found by the jury to be an element of negligence where no warning is given of the approach of the train.

In the present case, the engineer and fireman both testified that they were observing the statutory signals for the approaching crossing by blowing the whistle and ringing the bell; but other witnesses testified that these statutory signals or warnings, of the approach of the train to the crossing were not being given. They testified that they were at places where they heard such signals given by the train approaching from the south and did not hear any signals from the train coming from the north, either by ringing the bell or blowing the whistle. They were in possession of their faculties of hearing and would have heard the signals had they been given. Hence their testimony was not negative testimony, but was of affirmative character, to be given such weight as the jury might attach to it. St. L. I. M. & S. Ry. Co. v. Kimbrell, 117 Ark. 457, 174 S. W. 1183; St. L. S. F. Ry. Co. v. Horn, 168 Ark. 195, 269 S. W. 576; St. L. S. F. Ry. Co. v. Haynes, 177 Ark. 104, 5 S. W. (2d) 737; C. R. I. & P. Ry. Co. v. Thomas, ante p. 457.

Again, the engineer and fireman testified that they were keeping a lookout; but, as we have already seen, that alone would not satisfy the requirement in cases of this sort. The jury might have found from the testimony a state of facts as follows: Mrs. Bogers’ attention was attracted to the train from the south by the giving of the statutory warnings of its approach, by the bell ringing and the whistle blowing, and, not hearing any whistle blowing or bell ringing on the train from the north, her attention was concentrated on the train from thé south, and the fireman or engineer keeping the lookout observed this and should have given a short blast of the whistle, which might have attracted her attention so that she would have quickened her pace and stepped from the place of danger to a place of safety. It will be remembered that the witnesses testified that she did not quicken her steps, and that one or two steps would have carried her to a place of safety. It is true that the witnesses testified that the train from the north did sound the blast of the whistle at a public crossing a half a mile north of the crossing at Garner, but they said that the whistle was not sounded or the bell rung any more after the first blast of the whistle was given. Hence the jury might have inferred that, although Mrs. Rogers might have heard this, when she heard the train approach from the south, she thought she was mistaken about having heard the whistle from the north, and that her safety lay in watching the train from the south. The jury were the judges of the credibility of the witnesses, and the weight to be given to their testimony; and, under the circumstances, it cannot be said as a matter of law that the railroad company was free from negligence, and that the negligence of Mrs. Rogers was greater than that of the railroad company.

While public convenience and necessity may require the running of trains through cities, towns and populous communities at a high rate of speed, yet the rapid rate of speed in connection with other facts and circumstances, such as the failure to give any warning whatever of the approach of the train to a public crossing and the like, is for the consideration of the jury in determining whether the railroad company was guilty of common-law negligence; and the conduct of its employees as a whole constituted negligence at the common law, which was the proximate cause of the injury in cases like this.

In this connection, it may be stated also that error is claimed on account of the admission by the court, of evidence as to the position of gravel cars on the switching or storage track east of the main tracks. It will be remembered that one of the gravel cars was north of the public crossing at Garner, and the other three were south of it. We do not think there was any error in this respect. It tended to show that Mrs. Rogers’ vision was to some extent obstructed by the position of these gravel cars; and, as their position with reference to the crossing at Garner was definitely stated, the jury conld intelligently tell what, if any, obstruction to the vision of Mrs. Rogers was occasioned by their position.

It is also insisted that the court erred in submitting to the jury the question of comparative negligence under § 8575 of Crawford & Moses’ Digest. The section reads as follows:

“In all suits against railroads, for personal injury or death, caused by the running of trains in this State, contributory negligence shall not prevent a recovery where the negligence of the person so injured or killed is of less degree than the negligence of the officers, agents or employees of the railroad causing the damage complained of; provided, that where such contributory negligence is shown on the part of the person injured or killed, the amount of recovery shall be diminished in proportion to such contributory negligence.”

This was an independent act passed by the Legislature of 1919' and constituted a modification of the common-law doctrine of contributory negligence. It will be noted that the section expressly provides that in all cases against railroads for personal injury or death, caused by the running of trains in this State, contributory negligence shall not prevent a recovery where the negligence of the person so injured or killed is of less degree than the negligence of the railroad company. There is nothing whatever in the language of the statute which would confine it to cases brought against the railroad under the lookout statute or under the statute for the failure to give signals for the approach to a public crossing. No reason is assigned why the language of the statute should not be construed according to its ordinary meaning and be applied to all suits of this sort against railroads, and we can perceive none. Therefore we are of the opinion that the statute applies, and that the court correctly instructed the jury on the question of contributory negligence according to its provisions.

As. we have already seen, the case was also submitted to the jury under the doctrine of discovered peril. On this branch of the case but little need be said. Before the passage of our statute on comparative negligence, the court held that the doctrine of contributory negligence could not be used as a defense after the consequences of plaintiff’s negligence had been discovered and when the injury might still have been avoided, had the defendant used ordinary care appropriate to the subject-matter, being greatest, of course, where human life is in danger. St. L. I. M. & S. Ry. Co. v. Freeman, 36 Ark. 41.

Again, in Little Rock & Fort Smith Ry. Co. v. Cavanesse, 48 Ark. 106, 2 S. W. 505, the court said that the negligence of a plaintiff makes no difference where the direct cause of the injury complained of is the omission of the defendant, after becoming aware of the injured party’s negligence, to use a proper deg*ree of care in avoiding the consequence thereof.

In the case of C. R. I. & P. Ry. Co. v. Elzon, 132 Ark. 431, 200 S. W. 100, the court said that the doctrine of discovered peril is well settled in this State, and is to the effect that, when a traveler is discovered in a perilous position on or near the railroad -track by the engineer on a moving train, it is his duty to use every reasonable precaution, consistent -with the proper operation and management of their train, to avoid injuring the traveler. See also Huff v. Mo. Pac. Rd. Co., 170 Ark. 665, 280 S. W. 648, and St. L. S. W. Ry. Co. v. Simpson, ante p. 633. Many other cases, applying the doctrine according to the facts of the particular case by this court, might be cited, but we deem such course unnecessary.

As a general rule, the engineer in a case of this kind might assume that a person, before starting across the track and while crossing it, would exercise due care and caution for his own safety. The case at.bar, however, presents the question to be determined by a jury as to whether or not, under all the facts and circumstances here, the engineer and fireman knew of the impending peril of Mrs. Bogers, and that she was unaware of it, and should have given warning by a blast of the whistle or by ringing the bell, or by checking the speed of the train when he saw that Mrs. Bogers would likely reach a dangerous position on the crossing which she was unaware of, and which would result in her injury or death. Hence the jury might have found that the train operatives were negligent in the performance of their common-law duty in the premises, by not at least sounding the whistle, one blast of which might have prevented the injury.

It is also claimed that the court erred in not transferring the case to the Federal court, and on this point but little need be said. The case was removed to the Federal court and was remanded by it to the State court. It is well settled by the decisions of this court, and by the decisions of the Supreme Court of the United States, that where a case was removed to the Federal court and was remanded to the State court, the propriety of the remanding order will not be reviewed in the State court. K. C. So. Ry. Co. v. Wade, 132 Ark. 551, 201 S. W. 787; Powers v. Chesapeake & O. Ry. Co., 169 U. S. 92, 18 S. Ct. 264; McLaughlin Brothers v. Hallowell, 228 U. S. 278, 33 S. Ct. 465; Mo. Pac. Ry. Co. v. Fitzgerald, 160 U. S. 556, 16 S. Ct. 389; Pacific Live Stock Co. v. Lewis, 241 U. S. 440, 36 S. Ct. 637; and Yankaus v. Feltenstein, 244 U. S. 127, 37 S. Ct. 567.

The case was fairly tried before a jury under the principles of law applicable to the allegations of negligence relied upon for recovery, and was heard upon competent testimony. Therefore the judgment will be affirmed.


author: Smith, J.

text:
    Rawls v. Free.
    Opinion delivered November 23, 1931.

      B. W. Wilson and Coleman <& Gantt, for appellant.

      E. W. Broclcman, for appellee.
   Smith, J.

This is a suit for damages for the breach of an alleged contract to convey four separate farms which, collectively, comprised the J. S. Ross estate. Ross died in 1920, and was survived by four children, who, as-his heirs at law, mortgaged the lands thus inherited to T. H. Free to secure an indebtedness of $12,000. Default being made in the payment of this indebtedness, a suit was brought to foreclose the mortgage which secured it, and a decree of foreclosure was rendered in October, 1928. Pursuant to this decree, the lands were sold to Free by the commissioner appointed to make the sale, which was soon thereafter reported to and confirmed by the court.

Pending the foreclosure, L. O. Rawls, who had married one of1 the Ross heirs, entered into negotiations with Free for the purchase of all four of the farms which are referred to as the Ross estate. These negotiations were evidenced largely by letters which passed between the parties.

On January 15, 1929, the day appointed to consum - mate the sale from Free to Rawls, the parties met for that purpose, when a disagreement arose about certain rental contracts, and the sale was not made, whereupon Rawls brought this suit to recover damages for the alleged breach of the contract by Free.

At the conclusion of the plaintiff’s testimony, the defendant requested the court to direct a verdict in his favor, -and a similar request was made by the plaintiff, and no other instructions were requested by either party. Under this state of the record, the case was in effect withdrawn from the jury and submitted to the court as a jury, and the ruling of the court would have the same force and “effect as the verdict of a jury, and the judgment must be affirmed if the evidence is legally sufficient to support it.

The suit was defended upon two grounds. First, that the lands forming the subject-matter of the contract were not sufficiently described to comply with the statute of frauds. But we think the undisputed testimony shows that it was.

The letters referred to the lands as the property of the Ross estate upon which Free held a mortgage which he was then foreclosing. An accurate description of the lands might have been obtained from the mortgage or from the decree ordering its foreclosure, and the contract furnished the key by which the property might be certainly identified. The court could not therefore have found for the defendant upon the ground that an insufficient description had been employed. Miller v. Dargan, 136 Ark. 237, 206 S. W. 319; Skinner v. Stone, 144 Ark. 353, 222 S. W. 360, 11 A. L. R. 808; Dollar v. Knight, 145 Ark. 522, 224 S. W. 983; Kirby v. Malone, 145 Ark. 608, 215 S. W. 592; Moore v. Exelby, 170 Ark. 908, 281 S. W. 671; Davis v. Davis, 171 Ark. 168, 283 S. W. 360; Schweitzer v. Crandell, 172 Ark. 667, 291 S. W. 68.

Upon the question of the ability and readiness of the plaintiff to perform, the testimony is conflicting, and the judgment of the court might be affirmed upon that ground but for the fact that the undisputed testimony shows that on January 16, 1929, the day following the date upon which the parties had met to consummate the contract, there was placed of record a deed from Free for one of the farms to a third party. This deed was dated and acknowledged December 21, 1928, and was filed, for record at 9 a. m. on January 16, 1929, and the record is silent as to when the deed was delivered.

The text writers say there is a rebuttable presumption that an instrument was delivered on the date on which it was dated, provided, at least, it is not acknowledged on a different date. When the date of an instrument differs from the date of acknowledgment, the delivery is by some courts presumed to have taken place on the former date, and by some on the latter. Here, however, the date of the instrument and that of the acknowledgment is the same date, to-wit: December 21, 1928. Tiffany on Real Property, vol. 2 (2d ed.), p. 1764; Thompson on Real Property, vol. 4, p. 956; Devlin on Deeds, vol. 1 (3d ed.), p. 260; Meech v. Fowler, 14 Ark. 29; Smith v. Scarborough, 61 Ark. 104, 32 S. W. 382; 18 C. J., p. 414, § 493, of chapter “Deeds.”

There is therefore a presumption, in the absence of testimony to rebut it, that Free was unable to perform the contract on January 15, 1929, as he had previously conveyed to a third party one of the farms forming a part of the subject-matter of the contract. This being true, prima facie so at least, in the absence of testimony to the contrary, it was not necessary that Rawls tender performance, as the law does not require a tender to be made which would be vain and useless. It was waived by Free’s conduct. Fourche River Lbr. Co. v. Bryant Lbr. Co., 97 Ark. 633, 135 S. W. 796; Roberts Cotton Oil Co. v. F. E. Morse Co., 97 Ark. 513, 135 S. W. 334; Hollowoa v. Buck, 174 Ark. 497, 296 S. W. 74.

The court should not therefore have rendered judgment for the defendant, and for this error the judgment will be reversed, and the cause remanded for a new trial.


author: Smith, J. Mehaeey, J.,

text:
    Westbrook v. McDonald.
    Opinion delivered November 23, 1931.

      J. W. Westbrooh and J. S. Utley, for petitioners. Hal L. Norwood, Attorney General, and Walter L. Pope, for respondent.

      Geo. P. Whittington, E..H. Wootton, 8. W. GarraU and A. T. Davies, for protestants.

      G. Floyd Huff, amicus curiae.

   Smith, J.

J. W. Westbrook, for himself, and on behalf of all other petitioners herein referred to, has prayed this court to award the issuance of a writ of mandamus, directed to Ed F. McDonald, as Secretary of State of the State of Arkansas, requiring that officer to receive and file certain petitions praying that an act to amend § 3505, Crawford & Moses’ Digest, passed at the 1931 session of the General Assembly, be referred to a vote' of the people at the next ensuing general election, under the authority of the seventh amendment to the State Constitution adopted in 1920. Applegate’s Constitution of Arkansas, Annotated, page 203.

The complaint praying this relief, which was' filed June 27, 1931 alleges compliance with the amendment and with act No. '2 of the extraordinary session of the General Assembly in 1911, approved June 30, 1911. General Acts 1911, p. 582.

The petitions were lodged in the office of the Secretary of State on June 9 and 10, 1931, but the Secretary of State refused to indorse them as having been filed, because, in his opinion, under the advice of the Attorney General of the State, there had not been a substantial compliance with the Constitution and laws of the State in the particulars hereinafter discussed.

The act in question here sought to be referred to a vote of the people appears as act 71, and was approved by the Governor February 26, 1931, (Acts 1931, page 201). It reads as follows:

“Act 71.
“An act to amend § 3505 of Crawford & Moses’ Digest of the statutes of the State of Arkansas.
“Be it enacted by the General Assembly of the State of Arkansas:
“That § 3505 of Crawford & Moses’ Digest of the statutes of the State of Arkansas be and the same is hereby amended so as to read as follows, to-wit:
“The plaintiff, to obtain a divorce, must prove, but need not allege, in addition to a legal cause of divorce:
“First: A residence in the State for three months next before the final judgment granting a divorce in the action, and a residence for two months next before the commencement of the action,
“Second. That the cause of divorce occurred or existed in this State, or, if out of the State, that it was a legal cause of divorce in this State, the laws of this State to govern exclusively and independently' of the laws of any other State as to the cause of divorce.
“Third. That the cause of divorce occurred or existed within five years next before the commencement of the suit.
“Fourth. If any provision of this act be declared unconstitutional, the validity of the remainder of the act shall not be affected thereby.
“Approved: February 26, 1931.”

The petitions are all identical in form, and contain the following caption:

“PETITION FOE REFERENDUM
“To the Honorable Ed F. McDonald, Secretary of State of the State of Arkansas.
“We, the undersigned, legal voters of the State of Arkansas, respectfully order, by this, our petition, that act No. 80 of the General Assembly of the State of Arkansas, approved on the second day of March, 1931, entitled, ‘An act to amend section 3505 of Crawford & Moses’ Digest of the statutes of the State of Arkansas,’ also known as the ‘Divorce Bill of 1931,’ and being an act to permit the granting of divorces after a residence in the State for three months next before final judgment granting divorce in the action and a residence of two months next before the' commencement of the action, be referred to the people of the State of Arkansas, to the end that the same may be approved or rejected by the vote of the legal voters of the State at the biennial regular general election to be held Tuesday, the 8th day of November, 1932; and each of us for himself says:
“I have personally signed this petition; that I am a qualified elector of the State of Arkansas, and my residence, postoffice address, county and voting precinct are correctly written after my name.
Name Residence P. O. Address
Voting Precinct County "

It will be observed that the petition refers to tbe act as act No. 18O, and as having been approved on the second day of March, 1931, whereas, act No. 80, approved March 2, 1931, was an act making appropriations for the agricultural college of the fourth district. Acts 1931, page 224.

Each petition was a single page, and on the reverse side of each petition there was prepared an affidavit to be made by the circulator of the petition as to its genuineness, etc., with spaces in which to write the names of the signers appearing on the obverse side.

The petition containing the name of J. W. West-brook, who appears here as the petitioner for the writ of mandamus, was filled out by copying -the names of the petitioners and was signed by the circulator, but there was no jurat thereto as required by law. Immediately below the jurat there appears: “Copy of Act, Act No. 80, ’ ’ following which an exact copy of act 71 is set out. There then appears the following certificate of the Secretary of State:

‘£ Certificate
“State Capitol, “County of Pulaski, ‘ ‘ State of Arkansas. ss.
“I, Ed F. McDonald, Secretary of State of the State of Arkansas, do hereby certify that the foregoing and hereto attached instrument of writing is a true and perfect copy of act No. 80 of the General Assembly of the State of Arkansas, and entitled, ‘An act to amend section 3505 of Crawford & Moses’ Digest of the Statutes of Arkansas, ’ approved March 2,1931, the original of which was filed in my office on the 2d day of March, 1931.
“In testimony whereof, I hereunto set my hand and affix my official seal. Done at my office at the city of Little Rock, Arkansas, this the 1st day of April, 1931.
“Ed F. McDonald, Secretary of State.
“(Seal)”

We digress to say that the error in the number and date of the act was, in fact, made by the petitioners, and not by tbe Secretary of State. Of this fact there is no question.

It is not questioned that, prima facie, the petitions contained the requisite number of signers, but it is insisted that the petitions were insufficient for various reasons. The Secretary of State declined to indorse the petitions as having been filed in his office, hence this suit.

It may be first said that it was expressly held in the recent case of Townsend v. McDonald, ante p. 273, that act No. 2 of the extraordinary session of 1911, herein-before referred to, which was passed as an enabling act to the amendment voted on as amendment No. 10, was not repealed by the adoption of the I. and E. amendment adopted in 1920,- except in so far as it was in conflict with the amendment, and the act will therefore be read in connection with the amendment of 1920, which superseded the previous I. and E. amendment to the Constitution. The I. and E. amendment of 1920 recites that it “shall be in substitution of the initiative and referendum amendment, approved February 19, 1909, as the same appears in the Acts of Arkansas for 1909.”

It was also expressly decided in the Townsend case, supra, that, unless there has been a substantial compliance with the provisions of the act of 1911 in the matter of attaching to the petition seeking to invoke the referendum a full and correct copy of the measure sought to be referred, the Secretary of - State is without power to act, and mandamus will not lie to compel him to file petitions failing to set out a full and correct copy of the measure sought to be referred.

The first question for decision is therefore whether the petitions here under review substantially complied, in the matter, of form, with the I. and E. amendment of 1920.

The opinion in the Townsend case discussed the purpose of the requirement that a copy of the act to be referred appear on the petitions, and the reason why its mandatory provisions should be followed, the reason being that the petitioner might, if he wished, be informed as to the exact provisions of the act sought to be referred. But it was also said: “It is only necessary that a full and correct copy of the measure on which the referendum is asked be filed with the petition and attached thereto in order that the petitioners may have the op-. portunity to read it and inform themselves as to the act to be referred before signing the petition, if they wish to do so.”

The Townsend case held also that a substantial compliance with the enabling statute and the amendment was sufficient, and, we think, there has been a substantial compliance in this respect.

It has been mentioned that the respective petitions comprised a single sheet, and that, except as to the error in number of the act and the date of its approval, an exact copy of the act was printed on the reverse side of the petition, and was available for the inspection of any person whose signature was solicited to the petition upon its presentation. There appears to be no requirement in the statute, or in the amendment itself, that the act be set out at any particular or certain place on the petition.

It is true, as has been said, that the act was numbered 71, and not 80, and that it was approved on February '26, 1931, and not on March 2, 1931; but this was obviously a clerical misprision, an error which should not have occurred, but one not fatal to the validity of the petition. The purpose of stating the number of the act and the date of its approval was to aid in its identification, but these errors could not have been misleading when an exact copy of the act otherwise appeared on the petition. It is settled law that even the title of an act is not controlling in its construction, although it is considered in determining its meaning when such meaning is otherwise in doubt. Conway v. Summers, 176 Ark. 796, 4 S. W. (2d) 19.

Upon the proposition that the petitioners failed, at the time of filing the petitions, to submit a title to be used on the ballot, it may be said that the amendment does provide that “At the time of filing petitions the exact title to be used on the ballot shall by the petitioners be submitted with the petition, and on State-wide measures, shall he submitted to the State Board of Election Commissioners, who shall certify such title to the Secretary of State to be placed upon the ballot.”

We think there was a substantial compliance with this provision. The following communication was addressed and delivered to the Secretary of State:

. “Little Rock, Arkansas,
“June 9,1931
“Hon. Ed P. McDonald,
“Secretary of State and Ex-Officio Secretary of the State Board of Election Commission.
“Dear Sir:
“In your official capacity, you will hereby take notice:
“That on behalf of the petitioners for reference to the electorate of the State, that certain act of the Legislature, approved March 2, 1931, known as the three months’ divorce law, and being an act to amend § 3505 of Crawford and Moses’ Digest of the statutes of the State of Arkansas, so as to permit the granting of decrees of divorce to applicants who have resided in the State for a period of only three months, is hereby submitted for placing upon the official ballot for the general election to be held Tuesday, the eighth day of November, 1932, the following title:
“Referendum of the act of the Legislature of 1931, amending § 3505 of Crawford and Moses’ Digest of the laws of the State of Arkansas so as to permit the granting of decrees of divorce to applicants who have resided in the State for a period of only three months.
“For act, known as the Three Months’ Divorce Law amending § 3505 of Crawford and Moses’ Digest.
“Against act, known as the Three Months’ Divorce Law, amending § 3505 of Crawford and Moses’ Digest.
“Most respectfully submitted,
[Signed] “J. W. Westbrook,
“For himself and all other pétitioners.”

The Constitution does not require that the ballot title be furnished to each member of the State Board of Election Commissioners. The requirement is that it be submitted to tbe board, and tbe communication set out above was addressed to tbe Secretary of State as ex-officio secretary of tbe State Board of Election Commissioners, and we know, as a matter of law, that tbe Secretary of State is a member of tbe State Board of Election Commissioners, and is the custodian of tbe records of tbe board, and tbe communication recited that it was addressed to tbe Secretary of State in bis official capacity, and we therefore conclude that tbe ballot title was submitted to tbe State ¡Board.

It is insisted, however, that tbe ballot title as furnished was insufficient and misleading in that it appears to describe tbe act as one permitting tbe granting of decrees of divorce to applicants who have resided in tbe State for ninety days only, whereas tbe true purpose of tbe act is to amend § 3505, Crawford & Moses’ Digest of tbe laws of tbe State- of Arkansas, so as to permit suits for divorce to be instituted by persons who have only resided in tbe State for a period of ninety days.

It is true that, if one were to read tbe act itself, even casually, be would know that it bad not been enacted that one might obtain a divorce in this State by proving a residence therein for ninety days only; but it is equally true that the great body of tbe electors, when called upon to vote for or against an act at tbe general election, will derive their information about it from tbe ballot title. This is tbe purpose of tbe title.

It was said by the Supreme Court of California in tbe case of Wallace v. Zinman, 200 Cal. 585, 254 Pac. 946, 62 A. L. R. 1341:

“Every reason going to protect tbe public from imposition by undesignated matter in tbe title of an act of the Legislature obtains with like, if not greater, force to a measure that, is to be voted upon by the people.' It is common knowledge that an initiative measure is originated by some organization or a small group of people, and they circulate a petition requiring the signatures of only 8 per cent. of. the voters; that tbe measure is then placed upon tbe ballot and a large number of tbe population, not knowing what tbe context of tbe act is, rely solely upon its title as a guide to intelligent voting thereon. Speaking of the identical question before us, the Supreme Court of Oregon, in State ex rel. Gibson v. Richardson, 48 Ore. 309-319, 8 L. R. A. (N. S.) 362, 85 Pac. 229, said: ‘The validity of laws adopted at the. polls must be determined, like enactments by the legislative assembly, by the test of the Constitution as modified by the amendment thereto. Though the argument that a proposed measure must depend upon its own merits may not apply to acts initiated by petitions, a valid reason for requiring that the subject-matter of laws to be adopted or rejected at the polls should be stated in the title nevertheless exists. The majority of qualified electors are so much interested in managing their own affairs that they have no time carefully to consider measures affecting the general public. A great number of voters undoubtedly have a superficial knowledge of proposed laws to be voted upon, which is derived from newspaper comments or from conversation with their associates. We think the assertion may safely be ventured that it is only the few persons who earnestly favor or zealously oppose the passage of a proposed law, initiated by petition, who have attentively studied its contents and know how it will probably affect their private interests. The greater number of voters do not possess this information and usually derive their knowledge of the contents of a proposed law from an inspection of the title thereof, which is sometimes secured only from the very meager details afforded by a ballot which is examined in an election booth preparatory to exercising the right of suffrage.”

Upon the same subject, it was said by the Supreme Judicial Court of Massachusetts in Re Opinion of Justices, 171 N. E. 294, 69 A. L. R. 388, that the ballot title should be complete enough to convey an intelligible idea, and scope and import, of the proposed law, and that it ought to be free from any misleading tendency, whether of amplification, of omission, or of fallacy, and that it must contain no partisan coloring.'

As the ballot title here submitted might mislead, we have concluded that it was defective and insufficient, and that the amendment was not sufficiently complied with in this respect.

Having reached the conclusion that this mandatory provision of the amendment has not been complied with, we might rest this opinion upon that holding, and refuse to order the writ of mandamus for that reason. But, in view of the public interest involved as to the procedure under the amendment and the enabling act, we proceed to pass upon certain other questions raised in the case which would themselves be conclusive of the plaintiff’s right to have a writ of mandamus issued.

It is insisted that plaintiff Westbrook is not a petitioner, and that he therefore had no authority to supply the ballot title, and that, not being a petitioner, he has no right to maintain this suit for mandamus.

We have said that the petition containing the name of Westbrook did not have the jurat which the amendment requires. The amendment provides: “Only legal votes shall be counted upon petitions. Petitions may be circulated and presented in parts, but each part of any petition shall have attached thereto the affidavit of the person circulating the same that all signatures thereon were made in the.presence of the affiant, and that to the best of the affiant’s knowledge and belief each signature is genuine, and that the person signing is a legal voter and no other affidavit or verification shall be required to establish the genuineness of such signatures.”

This language is too plain to leave any doubt as to its meaning. The petition is not complete and is not entitled to be filed until the jurat above set out has been attached thereto, and as the petition upon which the name of Westbrook appears did not contain this jurat, it follows that he is not to be counted or considered as a petitioner.

The complaint or the petition for a review of the ruling of the Secretary of State in which the mandamus is prayed does allege, however, that Westbrook is a resident, citizen and qualified elector of the State, and that he is proceeding for himself and on behalf of all other petitioners for the referendum. In other words, he is acting for and on behalf of persons who are petitioners, and his attitude is that of a citizen who is proceeding as such on behalf of himself and of all others who are petitioners. It is alleged that there are over twelve thousand petitioners, and the amendment certainly does not contemplate that each and all of them shall submit the ballot title, nor is it required that each and all of them shall be made parties to the petition to review the action of the Secretary of State which the amendment expressly authorizes. It is insisted that § 9 of the enabling act of 1911 confers authority upon Westbrook thus to act.

Now the paragraph of the amendment entitled “Title” requires that at the time of filing the petitions the exact title to be used on the ballot shall by the petitioners be submitted with the petition. We think this is a matter in which one or more petitioners might act for themselves and for all other petitioners, but Westbrook, in his communication to the Secretary of State, named no person for whom he was authorized to act except himself, and he was not a petitioner. He did state that he was acting for himself and all other petitioners, but he named no one except himself. Proceedings of this kind should be had in the name of some one or more of the petitioners, so that it might be made to appear to the Secretary of State, prima facie at least, that the persons attempting to act were authorized to do so by the persons named as petitioners.

We have a statute which provides: “Where the question is one of a common or general interest of many persons, or where the parties are numerous, and it is impracticable to bring them all before the court within a reasonable time, one or more may sue or defend for the benefit of all.” 'Section 1098, Crawford & Moses’ Digest. But the person who so acts for a class must be a member of the class for whom he acts. District No. 21, United Mine Workers of America v. Bourland, 169 Ark. 796, 277 S. W. 546; Howard-Sevier Road Imp. Dist. No. 1 v. Hunt, 166 Ark. 62, 262 S. W. 517.

It is insisted that, although Westbrook is not a petitioner, he has authority to maintain this suit as a citizen under § 9 of the enabling act of 1911. This section provides that, if the Secretary of State shall refuse to accept and file any petition for the initiative or for the referendum, any citizen may apply within ten days after such refusal to the circuit court, or to the judge thereof in vacation, for a writ of mandamus to compel him to do so.

This section appears to have been repealed by the paragraph of the amendment entitled “Sufficiency of Petition.” In this paragraph of the amendment it is provided that: “The sufficiency of all State-wide petitions shall be decided in the first instance by the Secretary of State, subject to review by the Supreme Court of the State, which shall have original and exclusive jurisdiction over all such causes.” This conflict between the act and the amendment is such that the repeal of this section of the act would appear to result by implication. But, if this be not true, the act conferring the right upon a citizen who might not be a petitioner limits the right of such citizen who is applying for such writ of mandamus to a period of ten days after the refusal of the Secretary of State to accept and file the petition. This suit, brought by Westbrook, was not filed until the eleventh day after the Secretary of State had refused to accept and file the petitions in a written statement addressed to Westbrook and had announced his refusal to accept and file the petitions on the ground of their insufficiency. Therefore, if § 9 be not repealed, it granted Westbrook, as a citizen, no right to institute this suit, because he did not institute it within the time limited by that section.

It is suggested in a brief by amicus curiae that the petitions had not been filed at all, inasmuch as the Secretary of State had refused to mark them as filed. We do not concur in this view. It is settled law that, while it is proper for an officer whose duty it is to receive and file an instrument in writing to indorse thereon the date of filing when he receives the instrument, such indorsement is not the filing, but is merely an evidence of filing, and that the instrument is filed when it is delivered to the officer at Ms office to be received by Mm and kept on file. C. A. Blanton Co. v. First National Bank of Marked Tree, 175 Ark. 1107, 1 S. W. (2d) 558; Hogue v. Hogue, 137 Ark. 485, 208 S. W. 579; Forehand v. Higbee, 133 Ark. 191, 202 S. W. 29; Montague v. Craddock, 128 Ark. 59, 193 S. W. 268; Neas v. Whitener-London Realty Co., 119 Ark. 301, 178 S. W. 390, L. R. A. 1916A, 525; Case & Co. v. Hargadine, 43 Ark. 144.

Therefore, we hold that the petitions were, in fact, filed with the Secretary of State when they were delivered to that officer at his office for the purpose of being filed, although he refused to indorse thereon the fact that they had been so received and filed.

We conclude, for the reasons stated, that the writ of mandamus should not be granted, and it is so ordered.

Humphreys and Mehaeey, JJ., dissent.

Mehaeey, J.,

(dissenting). I do not agree with the majority in holding that the ballot title submitted might mislead, and that it was therefore defective and insufficient, and that the constitutional amendment was not sufficiently complied with in this respect.

The ballot title submitted is as follows, “Referendum of the act of the Legislature of 1931, amending § 3505 of Crawford & Moses’ Digest of the laws of the State of Arkansas so as to permit the granting of decrees of divorce to applicants who have resided in the State for a period of only three months.

“For act, known as the Three Months’ Divorce Law, amending § 3505 of Crawford & Moses’ Digest.”
“Against act, known as the Three Months’ Divorce Law, amending § 3505 of Crawford & Moses’ Digest.”

It will be observed that the title submitted does not undertake to state on what grounds or for what causes divorces may be granted, but it plainly shows that it is an amendment to § 3505 of Crawford & Moses’ Digest, “so as to permit the granting of decrees of divorce to applicants who have resided in the State of Arkansas for a period of only three months.”

I think anybody would understand from the title submitted that nothing had been changed in the divorce laws except the time applicants had to live in the State of Arkansas before a divorce could be granted.

There are numerous causes of divorce and the section of the statute amended provides: “The plaintiff, to obtain a divorce, must allege and prove in addition to a legal cause of divorce, a residence in the State for one year next before the commencement of the action.”

The act of 1931 amended that section of the Digest so as to permit applicants who have resided in the State for three months instead of one year to obtain a divorce.

The act only requires a residence in the State of two months before suit is brought, and three months before the final judgment granting the divorce.

I do not see how any one old enough and qualified to vote could be misled by the title suggested by the ballot. The majority say that if one were to read the act itself, even casually, he would know that it had not been enacted that one might obtain divorce by proving a residence in the State for ninety days only, but they say the great body of the electorate, when called upon to vote for or against an act at the general election, will derive their information about it from the ballot title. If they do, they will know that the act provides that one need live in the State only ninety days in order to procure a divorce; they will know that it is an amendment to § 3505, of Crawford & Moses’ Digest.

The majority calls attention to the case of Wallace v. Zinman, 200 Cal. 585, 254 S. W. 946, 62 A. L. R. 1341, as sustaining its holding that the ballot title is insufficient. The court in that case held that the act involved was violative of a section of the Constitution of California which provides: “Every act shall embrace but one subject, which subject shall be expressed in its title. But if any subject shall be embraced in an act which shall not be expressed in its title, such act shall be void only as to so much thereof as shall not be ‘expressed in its title.”

The court also held that it violated another section of the Constitution which reads as follows: “All laws of a general nature shall have a uniform operation.”

It then held that the act.was invalid for some other reasons. The title of the act passed on by the California court was as follows:

“An act to be known as the Usury Law relating to the Rate of Interest which may be charged for the loan or forbearance of Money, Goods, or things in action, or on acts after demand, or on judgments, providing penalties for the violation of the provisions hereof and repealing §§ 1917, 1918, 1919, and 1920 of the Civil Code and all acts and parts of acts in conflict with this Act.”

The court then called attention to the provisions of the act and held that the subject-matter of the act was not referred to directly or indirectly in the title to said statute. If the decision in this California case has any application at all to the instant case, I am unable to see it.

Another case referred to by the majority is In Be Opinion of the Justices, 171 N. E. 294, 69 A. L. R. 388. That was a case where 13 questions were submitted to the Justices by the Senate, and the only question answered by the Justices that has any bearing on the present case was the first question, and it is as follows: “Does the 'description of the proposed law’ (as it appears on the petition blanks, copy of which is submitted herewith and as reprinted on pages 130 and 131 of said Senate, No. 280) required by said article forty-eight to be printed at the top of each signature blank and also upon the ballot, meet the requirements of said article forty-eight and adequately inform the voters as to the provisions of said proposed law, especially as to the differences between said provisions and the present system of compulsory motor vehicle liability insurance?”

The court, among other things, said: ' ‘ The description is inaccurate in that it includes these statutes as among those repealed. The description is insufficient in that by section 1 of the proposed law the limitation of one year after the rendition of the judgment for bringing suit in equity to enforce against an insurer payment of a judgment for personal injuries or death caused by the insured is repealed. That repeal is not required because inconsistent with the proposed law. It relates to an independent and important matter to which no reference is made in the description.”

There are a number of other things pointed out by the Justices that make the description insufficient. No such differences can be found in the ballot title in the instant case. Certainly it can not be supposed that any voter would think that the law intended that any person could obtain a divorce simply by living in Arkansas 90 days without showing* some cause of divorce, and I think they could not have been misled by this ballot title.

The majority referred to one other opinion of the Oregon court, State ex rel. Gibson v. Richardson, 48 Ore. 309, 8 L. R. A. (N. S.) 362, 85 Pac. 229. In that case however, the court held that the title was sufficient, and in my judgment there is nothing* in that opinion that supports the opinion of the majority in this case. The Oregon court was considering the title of the act and not the ballot title.

Neither of the cases cited by the majority support its decision for two reasons: first, the cases cited as authority by the majority were decisions on the sufficiency of the title of a bill or act and not the ballot title; second, the court held in each of the cases that the title violated a provision of the Constitution which designated things necessary to be stated in the title.

We have no provision either in the Constitution or the laws of Arkansas prescribing* what the ballot title shall contain. The constitutional amendment simply provides that the exact title to be used on the ballot shall be by the petitioners submitted with the petition. There is no intimation in the Constitution or the law as to what the title shall contain.

After the adoption of the first initiative and referendum amendment, the Legislature passed an act to the effect that the Secretary of State should cause the ballot title to be printed, and that the ballot title should be the legislative title of the measure.

Evidently the people, in adopting the present amendment to the Constitution, intended that the petitioners should submit the title, and did not intend that it should be the legislative title.

The constitutional provision also' requires that the State Board of Election Commissioners shall certify such title, that is, the title submitted by the petitioners to the Secretary of State to be placed upon the ballot. The people could have adopted an amendment requiring the court or some other officer or officers to prepare the ballot title, but they did not see fit to do so.

The Oregon case cited to support the majority opinion, as we have already said, was considering the title of an act, and not a ballot title. The Constitution of that State provides: “Every act shall embrace but one subject and matters connected therewith, which subject shall be expressed in the title.”

We have no such provision in our Constitution, and the Oregon case is therefore not authority for the opinion of the majority.

The majority might have cited an Oregon case discussing the identical question that we have here, that is, the ballot title. In a case decided by the Oregon Supreme Court more than, three years after the opinion referred to by the majority, that court passed upon the sufficiency of a ballot title. In Oregon at that time, the law required the printing of the act in pamphlets. Our law requires the publication in newspapers in each county.

The Oregon. court said, in holding that the ballot title was sufficient: “There is nothing in the Constitution as amended, implying that the full title, as appears in the proposed measure, shall appear upon the ballot; nor does the act under consideration so require. The method provided is adequate to identify the bill as indicated on the ballot with the proposed measure on file in the office of the Secretary of State, the full title and text of which appears in pamphlets, a copy of which under the law in force, at the time the local option law was voted on, was presumably in the hands of each voter. The method then in use, and since improved upon, was and is analogous to the proceeding’ before the Legislative Assembly. * * * The only question then to determine is, does the title as designated and used on the ballot come within the purview of the Constitution as amended and supplemented by the act of 1903? We think it does. * * * As above stated, the title of a bill before the Legislative Assembly is required to be voted upon, and the full title is presumed to appear thereon. This method, under the Initiative, would be impracticable; for as manifest from the length of the title of the act under consideration, if any measures should be submitted to the voters at one time to print upon the ballot a full title to each would require the ballot to contain many pages of printed matter, which cumbersome method was plainly intended to be avoided. To recognize the rule invoked by appellant would defeat the very purpose contemplated by the adoption in our fundamental laws of our direct and additional system¡ of law-making. The system provided as above considered was obviously designated to take the place of that employed by the Legislature and accomplishes the same purpose.” State v. Lonaworthy, 104 Pac. Rep. 424.

To hold that the ballot title submitted by the petitioners in this case is insufficient would defeat the very purpose of the Initiative and Referendum Amendment.

The law requires that to every petition for the referendum shall be attached a full and correct copy of the measure on which the referendum is ordered, and the law also provides that, not later than the first Monday of the third month before any regular general election at which any proposed law referred is to be submitted to the people, the Secretary of State shall cause to be published in one newspaper in each county for thirty, days a true copy of the title and text, and all that is required of the petitioners is to submit a ballot title which may be compared with the act on file with the Secretary of State or the act as published in the county papers.

The purpose of the amendment is to permit the people to refer laws to themselves and to permit them to vote on these laws, and there is no provision anywhere in our Constitution or laws that the ballot title shall be such a full title as contended for in this case. It would be impracticable and probably no two persons would prepare the same ballot title for any measure. The only thing necessary is, as said by the Oregon court, that the ballot title be such that the voter can identify it as being the act on file with the Secretary of State. To hold otherwise would defeat the very purpose of the amendment.

With due respect to my associates, I think they have put form above substance and have underestimated the intelligence of the voters of Arkansas.

They quote some argument from the California and Massachusetts courts about protecting the people. The argument is plausible, but I do not think it is true. I think the people generally devote as much time to a discussion of measures of this sort as we do, and that they can vote on it just as intelligently. Not only people differ about what a ballot title should be, but courts differ about the construction of the Constitution and the laws.

An illustration of this may be found in the decisions of the Arkansas and Colorado courts on the question of the number of amendments that could be submitted at one time after the adoption of the Initiative and Referendum Amendment. This court held that only three amendments could be submitted at one election notwithstanding the adoption of the amendment which did not limit the number. State ex rel. v. Donaghey, 106 Ark. 56, 152 S. W. 746.

The Colorado court held exactly the reverse, and in so holding said: “We have no right to assume such a result, for such argument, if heeded, would sweep away our present form of government. * * * We cannot be unmindful that this court must not usurp power or abuse its right of construction or lose sight of the dangers which might arise, not only to the State, bnt to the court itself, from such usurpation and abuse. It is just as important for the preservation and just administration of government of this State that the power of courts should be exerted only within the limits of the Constitution and be not abused as it is that the power of the people, the General Assembly or Executive Department, should be so exerted and not abused. ’ ’ State ex rel. Tate v. Prevost, 134 Pac. 129.

I think the words of the Colorado court above quoted are applicable here. Of course there may be a few voters who would not understand from the ballot title what act they were voting for or against, but.that may be said with reference to any measure submitted to the people.

I think to hold, as the majority has, that this ballot title is insufficient destroys the constitutional amendment permitting the people to have measures referred to them. There must, of course, be a compliance with the provisions of the Constitution and the laws in order to permit the people to vote on any measure, but we have recently held that a substantial compliance is sufficient.

It is next held by the majority that Westbrook was not a petitioner, and that he therefore had no right to submit a ballot title or to 'bring suit. The opinion of the majority, to the effect that Westbrook was not a petitioner is based on a provision of the amendment to the Constitution. The first sentence of the paragraph on which the majority opinion is based, reads as follows: “Only legal votes shall be counted upon petitions.”

It is true that this paragraph requires an affidavit, but the purpose of the affidavit is to show that the signer of the petition is a legal voter, and that his signature is genuine, and the 'Constitution provides that, if this affidavit is made, no other affidavit or verification shall be required to establish the genuineness of such signature. When this entire paragraph is considered, it clearly appears that any legal voter may sign the petition, and the only requirement is that the signer be a legal voter, otherwise his vote will not be counted.

The Constitution requires, in order to refer a measure, a certain per cent, of the voters of the State to sign the petition. That, of course, means legal voters, and it was the intention of this provision of the Constitution that the proper number of legal voters should sign the petition.

Westbrook was unquestionably, in my judgment, a petitioner, and it is not disputed that he was a legal voter, and to say that he is not a petitioner because the person who circulated the petition neglected to attach the jurat, is in my judgment a narrow technical construction of the Constitution.

The Constitution does not provide that proof that a petitioner is a legal voter may not be made in other ways besides the affidavit referred to, but, if it did, if Westbrook was a legal voter he was a petitioner, and, even though his vote could not be counted in determining whether a sufficient number had signed the petition, he would still have the right to submit the ballot title.

But, if he were not a petitioner, he would have the right as a lawyer, not only to file the petition with thé Secretary of State, but to submit the ballot title for the petitioners. This court knows that Westbrook has been practicing law in this State for more than thirty years, and the other attorney with him in bringing the suit to review the action of the Secretary of State, is a former' Attorney General of the State of Arkansas, and these lawyers had the right to bring the suit for the petitioners, even if it be conceded that Westbrook was not a petitioner.

It was publicly published and generally known that Westbrook was representing the petitioners, and the majority in its opinion holds that the petitions were properly filed, and I think this is correct. They were filed, however, by Westbrook, representing the petitioners. The fact that Westbrook represented the petitioners was not only published all over Arkansas, but the petitioners themselves referred to him as their representative publicly, and none of them ever questioned his authority to submit for them the ballot title or to bring this suit.

The majority state, however, that whoever acts for a class must be a member of that class, and cite several authorities and quote § 1098 of Crawford & Moses’ Digest. I do not think that this section has any application here for several reasons. This is not the kind of action mentioned in said section; is not a civil action, but is in the nature of special proceedings. “ A civil action is an ordinary proceeding in a court of justice by one party against another for the enforcement of a private right, or the redress or prevention of a private wrong. It may also be brought for the recovery of a penalty or forfeiture.” Section 1028, Crawford & Moses’ Digest.

The statute also provides that every other remedy in a civil case is a special proceeding. Section 1029, Crawford & Moses’ Digest.

It clearly appears that this proceeding is not for the enforcement óf a private wrong. It is therefore a special proceeding, and the section with reference to many persons interested in a thing of common or general interest has no application.

The provisions of the Constitution permitting people to refer measures to themselves should be liberally construed, so as to effect the purpose for which they were adopted. If narrow technical construction is resorted to, it defeats the very purpose of the Constitution and deprives the people of the benefits conferred by the constitutional provision.

I think the objection to the ballot title and as to Westbrook not having authority to submit the title and bring the suit for the petitioners is purely technical and ought not, in my judgment, to be used to prevent the public from voting on this law. It is not a question of whether the law is wise or unwise, good or bad, but the question is, shall the people have a right to vote on it? 1 think they should.

Mr. Justice Humphreys agrees with me in the views herein expressed. We think the writ prayed for should be granted.


author: Humphreys, J.

text:
    Arkansas State Highway Commission v. Anderson.
    Opinion delivered November 23, 1931.

      Hal L. Norwood, Attorney General, Claude Duty, Assistant, and Chas. A. Walls, for appellant.

      Jno. R. Thompson, for appellee.
   Humphreys, J.

Appellant brought suit in the chancery court of Lonoke County to enjoin appellee from constructing a filling station on the northwest corner of block 32 in the town of Cabot, which property is owned by appellee. It was alleged as a basis for the action that, in order to widen State Highway 67 passing over the street in front of said property, the town enacted ordinance No. 50, making it unlawful for any person, firm, or corporation to place any building or obstruction within the extended boundaries of said highway, and imposing a daily fine of not less than $10 nor more than $50 upon any one violating said ordinance.

Appellee filed a demurrer to the complaint, alleging that it did not state a cause of action. The trial court sustained the demurrer, and dismissed the complaint, over appellant’s objection and exception, from which is this appeal.

This is an attempt on the part of appellant to widen its highway under the protection of an ordinance to prevent adjoining property owners within the extended boundaries of highway 67 from constructing buildings on their property adjoining the original street in front of same. In other words, it is an attempted indirect method of taking private property for public use without just ■compensation, which is. prohibited by article 2, § 22, of the Constitution of 1874, as follows:

“The right of property is before and higher than any constitutional sanction, and private property shall not be taken, appropriated or damaged for public use without just compensation therefor.”

Zoning ordinances are allowable in towns and cities when authorized by valid statutory authority and when in harmony with the Constitution of the State, but are not allowable when unauthorized and contrary to the Constitution.

Towns and cities may legally widen streets and alleys under authority delegated by §§ 4006, 4009 and 4010 of Crawford & Moses’ Digest if the procedure provided therein is followed, but cannot do so by any other method.

The decree of the chancery court is affirmed.