author: McHaNey, J.

text:
    American Alliance Insurance Company v. Paul.
    Opinion delivered May 2, 1927.
    1. Reformation of instruments — mutual mistake. — To entitle a party to reform an instrument in writing, it must be shown that the mistake was common to both parties, and that the instrument as delivered did not express the contract as understood by either.
    2. Reformation of instruments — sufficiency of proof. — -While equity will reform a written instrument on account of a mutual mistake, if it does not reflect the intention of either party, yet the proof of such mistake must be clear, unequivocal and decisive, but the rule does not require that the proof be undisputed.
    3. Insurance — reformation of policy.- — Where insurer and insured intended a fire policy to cover cotton while in the possession of a warehouse company, but the policy required storage in a certain warehouse, the insurance agent not knowing that the warehouse company had acquired another warehouse, the policy was properly reformed, after loss of the cotton in such other warehouse, to cover it while stored there, since such limitation of coverage, under the circumstances, amounted to inequitable conduct justifying reformation.
    4. Insurance — reformation of instrument. — A policy of fire • insurance, like any other written instrument, is subject to reformation, where the facts and circumstances will justify, so as to express the real intention of the parties.
    5. Insurance — penalty and attorney’s fees. — In a suit to reform a fire insurance policy by changing the description of location of the property insured, and for value of which the insured property was destroyed, it was error to assess the statutory penalty and attorney’s fee, where plaintiff made demand for the full value of the property destroyed without payment or tender of premiums due.
    6. Insurance — deduction of unpaid premiums. — In a suit for reformation of a fire insurance policy and for the value of insured property which had been' destroyed, the amount of unpaid premiums should be deducted from the judgment, which was for the value of the property destroyed plus interest.
    Appeal from Jefferson Chancery Court; Ilarvéy R. Lucas, Chancellor;
    reversed in part.

      Cochrill (& Armistead, for appellant.

      Roivell & Alexander, for appellee.
   McHaNey, J.

On November 22, 1924, appellee, E. L. Paul, was the owner of thirty-seven bales of cotton in transit via Missouri Pacific Railroad Company from G-rady to Pine Bluff, Arkansas, shipper’s order bill of lading for twenty-seven bales of such cotton having been issued and delivered to appellee, and the other ten bales' moving separately from H. A. Bankston to H. A. Banks-ton, Pine Bluff, Arkansas, notify E. L. Paul, c/o Pine Bluff Compress & Warehouse Company, Pine Bluff, Arkansas. On that date appellee went to the office of the Home Insurance Agency in Pine Bluff to procure insurance on this cotton, which he did through Mr. George W. Wells, president of the agency company, who caused to be issued a. policy of insurance in appellant company in the sum of $5,000 for a premium of $22.40 for a term of six months from November 22,1924, to May 22, 1925, against loss by fire on the following described property, “while located and contained as described herein, and not elsewhere, to wit:

“'$5,000 on cotton in hales, owned or held by the assured, in trust, or on commission, or on joint account with the Pine Bluff Compress & Warehouse Company ’s Compress and Warehouse, and on platforms and tramways adjoining said compress, situated near the eastern city limits of Pine Bluff, Arkansas, and also while in or on cars on sidetracks and switches before actual delivery of cotton is made to the said compress, but not while in transit nor while bill of lading is in force. * * * It is further understood and agreed that, if this policy covers at more than one place or location (and within the meaning of this clause each warehouse, yard or platform is understood to be a separate location), then the whole amount of insurance named herein shall be distributed and apply in each location as the value of the property insured in each location bears to the total value of the property insured in all locations. * * *”

Prior to obtaining this insurance appellee had borrowed a sum of money from the National Bank of Arkansas, for which this cotton was security, and, by agreement of parties, a loss payable clause to the National Bank of Arkansas was attached to the policy and delivered to the National Bank of Arkansas by the agency, on the direction of appellee, Paul, who did not read and never saw the policy until after the loss here--inafter mentioned.

The Pine Bluff Compress & Warehouse Company had for many years owned and operated a very large compress and warehouse near the eastern city limits of Pine Bluff, which it called No. 3, and the St. Louis Compress Company had owned a cotton warehouse on the west side of the city, which, in September, 1924-, it sold to the Pine Bluff Compress & Warehouse Company, and which was known as warehouse No. 1, but same had not been used by the latter company for the storage of cotton until the middle of November, and neither Mr. Paul nor Mr. Wells of the insurance agency knew, at the time this policy was issued, that the Pine Bluff Compress & ’Warehouse Company either owned or was using for storage of cotton warehouse No. 1 in the western part of the city. In press or warehouse No. 3 there were-two rates for insurance on cotton stored therein, depending on the location of the cotton in the compartments. There were twelve storage compartments in this press, and, if the policy was to cover while located in compartments from one to twelve, the premium rate is 64 cents, but if the location of the cotton is limited to compartments five to twelve, the premium rate is 39 cents per hundred dollars. The premium rate in warehouse No. 1 is $2.31 per hundred dollars, and if the policy covers cotton in both warehouses, in the nature of a blanket coverage, the premium rate is $2.81 per hundred dollars. At the time the policy was Avritten, neither party having in mind the possibility of the location of the cotton in the warehouse No. 1, they discussed the difference in rates in warehouse No. 3, and Mr. Paul chose the higher rate in order that there might be no contention regarding the location of the cotton in the event of loss.

The twenty-seven bales covered by the bill of lading before mentioned were-brought into Pine Bluff promptly, but were not unloaded in warehouse No 3 on account of congestion, and, by direction of the warehouse company, they were delivered to and stored in warehouse No. 1. Thereafter, on December 11, warehouse No. 1 was destroyed by fire, in which these twenty-seven bales were burned. The other ten bales were delivered to compress No. 3 in the eastern end of the city. Appellee did not discover, for some time after the fire, that his cotton had been destroyed, but he did later discover .this fact, and, on December 31, 1924, he ivas in the office of the Home Insurance Agency and advised Mr. Wells that twenty-seven bales of his cotton were burned. Mr. Wells promised to notify the company of the loss, and stated that it would not be long before he would hear from them. On that day, December 31, after Mr. Paul had left the office, Mr. Wells wrote him a letter advising him that, in his judgment, the company was not liable, for the reason that he had discovered, on examination, that the policy covered loss in press No. 3, and did not cover loss in press No. 1, and in this letter he made this statement:

“After you were in our office this a. m., and when we started to report loss to the company, we found that this policy was issued, upon your instructions, to cover in press No. 3, situated in the eastern part of Pine Bluff, at rate of 64 cents per annum. We mention rate, as there could be no doubt as to whether the policy should cover, for, at time you took out this policy, you had us give you tentative figures as to the cost of same. The rate in press No. 1, which burned, is $2.31 per $100.”

After denying liability, he stated in the letter that they were reporting the loss to the company, advising it fully, and would let Mr. Paul hear from him again when he heard from the company. The agency thereafter, on the first of each month, rendered a bill to appellee, Paul, for the premium on this and other policies, and, on March 16,1925, while in the office of the agency, he signed a check written out by Mr. Wells for $30.40, covering his bill for this and other premiums, and on that day, after Mr. Paul had left the office, Mr. Wells wrote a letter to him, returning the check for $30.40, and, again denying liability under the policy in question, in which he stated:

“We could have and would have been just as pleased to write you insurance there (meaning in press No. 1) as in press No. 3, in fact, we would have liked it better, as rate in that location is higher, and, as we work upon a commission basis, our commission would have been greater. ”

Appellant having denied liability, appellees, E. L. Paul and the National Bank of Arkansas, brought suit in the Jefferson Chancery Court for a reformation of the policy, by changing the description of the location of the property insured from what it was as issued to read “while contained in any compress or warehouse belonging to the Pine Bluff Compress & Warehouse Company, in or adjacent to the city of Pine Bluff, Arkansas,” and for judgment for $3,000, the agreed value of the twenty-seven bales of cotton, interest, 12 per cent, damages, •attorney’s fees, and costs. The court, after hearing the evidence, decreed a reformation of the policy in accordance with the prayer of the complaint, gave judgment thereon for $3,000, and added the penalty and attorney’s fees in the sum of $300, in which the court made a finding of fact to the effect that, quoting appellant’s abstract, “there was a mutual mistake, that is, that there was a meeting of minds and an agreement actually entered into, but that the policy, in its typewritten form, does not express what was really intended by the parties.” The court further found that the agent Wells and appellee, Paul, both understood the cotton was insured while in the custody of the warehouse company, and so intended it, and that, even if it could he said that that was not the intention of the agent, then his conduct was so inequitable as to justify reformation. “For either reason, this court finds the evidence clear, satisfactory and convincing that the intent of the parties was not correctly expressed in the typewritten portion of the policy, and the policy — that part of it where the mistake of the draftsman occurred in failing to give the correct location of the property — should be reformed. ’ ’ From the decree against it appellant has appealed to this court.

Appellant’s first contention for a reversal is that the decree of reformation is not sustained by the evidence, for the reason, first, that, to entitle a party to reform an instrument in writing, it must be shown that the mistake was common to both parties, and that the instrument as delivered did not express the contract as understood by either, and that the evidence in this case is not sufficient to show this; and, second, that reformation of a written contract will be granted only where the proof is clear, unequivocal, decisive and beyond reasonable controversy, and that the evidence in this case does not measure up to this standard. As abstract propositions of law, both of the above declarations or statements of the law are correct. The substance of the first proposition is taken from Varner v. Turner, 83 Ark. 131, 102 S. W. 1111; and in Cherry v. Brizzolara, 89 Ark. 309, 116 S. W. 668, 21 L. R. A. (N. S.) 508, both propositions-are sustained. In the first case, quoting from the syllabus, it is said: “To entitle a party to reform a deed upon the ground of mistake it must be clearly shown that the mistake was common to both parties, and that the deed.as executed does not express the contract as understood by either of them.’.’

The second syllabus of the next case sustains the second proposition of law above stated as follows: “While equity will reform a written instrument on account of a mutual mistake if it does not reflect the intention of either party, yet the proof of such mistake must be clear, unequivocal and decisive.”

Any number of decisions of this court might be cited, and a great number of them are cited and quoted from in appellant’s brief, running from McGuigan v. Gaines, 71 Ark. 614, 77 S. W. 52, down to the recent case of Norsworthy v. Hicks, 170 Ark. 877, 281 S. W. 660. But we do not agree with counsel that these rules have not been met and satisfied in this case. Let it be remembered that neither the agent of appellant nor Mr.' Paul knew that the compress company had more than one warehouse.for the storage of cotton in the city of Pine Bluff; that appellee, Paul, knew nothing’ about the location of the one warehouse in the eastern part of the city. What Mr. Paul wanted, and what Mr. Wells intended necessarily, was that the cotton should be insured while in the possession of the compress company, wherever it might be located, and Mr. Wells believed that it would be located in warehouse No. 3, as that was the only place that it could be put. and be in a warehouse in the possession of' the compress company, as he knew of no other at that time. The fact that it might be located a part in one place and a part in another place is distinctly recognized by the second clause of the policy above quoted, although neither party actually contemplated such at the time. A portion of the language of that clause is, “that, if this policy covers at more than one place or location (and within the meaning of this clause each warehouse, yard, or platform is understoodto be a separate location),” and this is a recognition that the cotton might be in different locations.

While Mr. Wells testified very positively that he wrote the policy in accordance with the instructions of Mr. Paul, he says that, when Mr. Paul came into his office and asked him what it would cost to insure the thirty-seven bales, he asked him where the cotton would be, and that Mr. Paul said in the Pine Bluff Compress & Warehouse Company, showing conclusively, to our minds, that it "ivas the intention of both parties that the cotton should be insured while in the possession of the Pine Bluff Compress & Warehouse Company, wherever it might be located. This conclusion is further borne out by the fact that, in the letter of December 31, 1924, he stated that the policy was issued on Mr. Paul’s instruc: tions to cover in press No. 3 “at rate of 64 cents per annum. We mention rate as there could be no doubt as to whether the policy should cover, for at time you took out this policy you had us give you tentative figures as to cost of same.”

In other words, Mr. Wells bases his statement that Mr. Paul instructed him to insure this cotton in warehouse No. 3 on account of the rate charged. The fact that he charged him a 64-cent rate is the foundation for Mr. Wells’ belief that Mr. Paul gave him such definite instructions, rather than an independent recollection that Mr. Paul had so instructed him. This letter was written December 31, shortly after the fire, and his recollection of the matter at that time was undoubtedly better than it was at the time of the trial. In his letter of March 16 Mr. Wells states that he would have been pleased to have written his insurance covering press No. 1. On December 31, Mr. Paul went to Mr. Wells’ office and notified him that twenty-seven bales of his cotton had been destroyed in warehouse No. 1, and Mr. Wells at that time did not know, or at least did not remember, that the policy did not cover warehouse No. 1, and told Mr. Paul that be would notify the insurance company and would bear 'from them shortly. lie did not know, or did not remember, that it was not covered until be looked at bis records and found that be bad caused the policy to be written so as to cover only in press No. 3. Again, it is not disputed that Mr. Paul wanted bis cotton insured and that Mr. Wells agreed to insure it while in the possession of the Pine Bluff Compress & Warehouse Company. Mr. Wells, as agent of appellant, agreed and undertook to do this. If therefore, having undertaken to protect Mr. Paul against loss of this cotton by fire, while in the possession of the warehouse company, he either carelessly, negligently or fraudulently so wrote the policy as to limit the coverage to loss to a particular possession instead of possession generally, this would amount to inequitable conduct, such as to justify reformation of the policy.

In the case of Welch v. Welch, 132 Ark. 227, 200 S. W. 139, this court went thoroughly into the question of reformation of written instruments, and there held that a court of equity will reform written instruments either where there is a mutual mistake or where there has been a mistake of one party accompanied by fraud or inequitable conduct of the other party, and quoted Pomeroy, Eq. Jur. (3 Ed.), vol. 4, par. 1376, as follows:

Equity has jurisdiction to reform written instruments in but two well defined cases: ■ (1) Where there is a mutual mistake — that is, where there has been a meeting of minds — an agreement actually entered into, but the contract, deed, .settlement, or other instrument, in its written form, does not express what was really intended by the parties thereto; and (2) where there has been a mistake of one party accompanied by fraud or other inequitable conduct of the remaining parties. In -such cases the instrument may be made to conform to the agreement or transaction entered into according to the intention of the parties. The conditions of fact giving rise to the exercise of the .jurisdiction to grant reformation are numerous. Almost all written instruments may be reformed when a proper occasion is furnished.”

In order to justify reformation it is not necessary tliat the facts he undisputed. - In Troupe v. Ancrum, 146 Ark. 36, 225 S. W. 9, it is said, quoting from syllabus:

“While, to justify reformation of an instrument for mutual mistake, there must he something more than a mere preponderance of the evidence, the rule does not 'require that the proof be undisputed; it is sufficient if the testimony is unequivocal and clear, that is, such as to satisfy the court that the mistake was made and that the instrument does not express the intention of the parties.”

A policy of fire insurance, like any other written instrument, is subject to reformation, where the facts and circumstances will justify, so as to express the real intention of the parties. Conn. Fire Ins. Co. v. Wigginton, 134 Ark. 152, 203 S. W. 844, where this court reformed a fire insurance policy so as to attach a standard mortgage clause to same instead of a loss-payable clause, and this was done on conflicting evidence.

It necessarily follows, from what we have said, that the decree of the court in reforming this policy to cover the loss of these twenty-seven bales of cotton is correct.

The last contention of counsel for appellant is that the court committed error in assessing a penalty and attorney’s fee, and this contention is made on the ground that the penalty and attorney’s fee statute applies only to a suit on a written policy, and that no recovery was had in this case on the written policy involved herein; that the policy was reformed by parol testimony and a recovery had on the policy thus reformed. We agree with counsel that the court erred in assessing penalty and attorney’s fees, but for a .different reason' from that alleged. The case of Ætna Ins. Co. v. Short, 124 Ark. 505, 187 S. W. 657, cited by counsel, is not authority to sustain appellants’ contention on this ground. In that case no policy was issued. Here the policy was issued, but not written in accordance with the intention of the parties. We agree with the contention that there can be no recovery for attorney’s fees and penalty, for the reason that appel-lees cannot recover the full amount sued for — the sum demanded. Pacific Mutual Life Ins. Co. v. Carter, 92 Ark. 378, 123 S. W. 384, 124 S. W. 764. Tlie premium on this policy lias not been paid, and there was'no offer on-Mr. Paul’s part to pay same during the course of this trial. Furthermore, the uncontradicted testimony shows that the rate in warehouse No.. 1 is $2.31 per hundred dollars, whereas the rate in compartments from one to twelve' in warehouse No. 3 was 64 cents. We cannot tell from the evidence in the record what the rate on warehouse- No. 1 would be for six months, whether one-half of the annual rate or not. If we could so determine this matter, judgment would be entered here. 'The decree of the chancery court in this regard was erroneous, and in this respect it is reversed, with directionsTo determine the amount of the premium due for the six months’ period on the twenty-seven bales of cotton in warehouse No. 1, of the value of $3,000, and the amount of the premium, due and unpaid for the ten bales, of cotton located in warehouse No. 3, and deduct the total thereof from the $3,000 and interest, as allowed in the decree, and enter judgment for the balance thus found to be due. It is so ordered.


source: Caselaw Access Project

license: Public Domain

text:
    Taaffe v. Sanderson.
    Opinion delivered May 2, 1927.
    1. Elections — contests.—The purpose of the court in all election contest cases is to determine whether the contestant or the respondent has received the highest number of legal votes.
    ü. Elections1 — candidate’s pledge. — The candidate’s pledge that he was familiar with the Corrupt Practice Act (Crawford & Moses’ Dig., § 3896, et seq.) and all laws governing the same, held substantial compliance with § 8898, requiring a statement that the candidate will in good faith comply with its terms, especially where it was not contended that provisions of the Corrupt Practice Act had been violated.
    3. Elections — affidavit of Reputable citizen. — Appellant in an election contest could not complain of the court’s holding that one of 11 persons supporting contestant’s affidavits was not a “reputable citizen” in the sense of a qualified elector, under Crawford & Moses’ Dig., § 3772, where the person objected to was in all respects qualified except that he had not resided in the ward 30 days at the date of the primary, under § 3757 et seq.

    4. Elections — qualified voters. — Voters who requested others to make payment for them of poll taxes and obtain receipts were not disqualified from voting, where voters promised to pay and did pay third persons the amount of such tax.
    5. Elections — qualification of voters. — Voters held not deprived of the right of suffrage by the fact that the bank which was to pay their poll tax for them as agent made the payment after the time allowed, where the payment was made in pursuance of the tax collector’s agreement extending credit..
    6. Taxation — liability of collector. — The tax collector is responsible on his official bond for any credit extended to taxpayers, and is not subrogated to the State’s right of lien.
    7. Elections — canvass of ballots. — In an election contest, a ruling that the ballots would be opened and canvassed did not require the court to render judgment for the contestees where contestants closed their case with the reservation of the right to offer ballots at the conclusion of all testimony.
    8. Appeal and error — discretion as to course of trial. — Trial courts are vested with a large discretion -in determining the orderly 'course of trial, which will not he reversed except for manifest abuse of discretion.
    9. Elections — assessment of married women. — Where married women voters placed on the tax books had not been properly assessed for poll taxes because their names were placed after their husbands’ names with the words “and Mrs.,” such women had no right to exercise the franchise as qualified electors. ■
    10. Statutes — extension of privilege. — Where a- privilege is extended to one- class of citizens on certain conditions and subsequently thereto the like privilege is conferred on another class, conditions attached to the exercise of the privilege necessarily attach to the subsequent class.
    11. Statutes — extension by inference. — A statute extends by inference to cases not originally contemplated when it deals with a class within which a new class is brought by later statutes.
    12. Elections — addition of names to the poll tax list. — In an election contest under Crawford & Moses’ Dig., § 3773, the action of the court in striking out the names of persons as electors who, after delinquency, had their names added to the clerk’s list by the sheriff and deputies on payment of poll tax and penalty, instead of by clerk, held proper; their assessment being erroneous, under § 3738.

      13. Elections — qualification of voters. — In an election contest under Crawford & Moses’ Dig., § 3773, voters from other counties who did not appear on the official printed list of taxpayers, and who gave no evidence of qualification, and persons who had ■become 21 since the last assessment time, held disqualified as electors, under § 3777.
    ’14. Elections — printed list of voters. — In an election contest, under Crawford & Moses’ Dig., § 3773, the printed list of qualified voters, complying with § 3740, the printed signature of the county clerk certifying thereto, held the official list, rendering voters whose names did not appear thereon disqualified in the absence of other evidence of qualification.
    Appeal from Little River Circuit Court; B. E. Isbell, Judge;
    affirmed.

      Otis Gilleylen, J. B. Morrell, Abe Collins and A. D. DuLaney, for appellant. ^

      John J. DuLcvney, A. P. Steel, Feasel é Steel and James D. Head, for appellee.
   McHaNey, J.

At the Democratic primary, August 10, 1926, in Little River County, appellant, George Taaffe, appellee, J. G. Sanderson, Charles Billingsley and P. M. McCord were rival candidates for sheriff and collector. Appellant, A. T. Collins, appellee, C. S. Cobb, W. D. Waldrop and W. E. Kinsworthy were rival candidates for county judge. On the face of the election returns Taaffe was nominated for sheriff and Collins for county judge. Sanderson and Cobb, each having received the next highest votes to the winners for the respective offices, and being dissatisfied with the result as reflected by the returns, filed a contest before the county central committee at its meeting on August 13. The committee spent two days hearing the contest, and, after due deliberation, found that Taaffe and Collins had won, and dismissed the contests. Thereafter, on the 23rd day of August, and within the time provided by law, the contestants filed separate identical complaints in the circuit court against Taaffe and Collins, to which separate identical answers were made, the cases consolidated, tried, and briefed together. Each complaint was verified by what purported to be ten reputable citizens, and, in addition to all the formal jurisdictional matters necessary, it charged that Collins and Taaffe were the sheriff and collector and deputy sheriff and collector, respectively, and conspired together to nominate Taaffe to succeed Collins, and to nominate Collins, the retiring sheriff, to the office of county judge, and to accomplish the alleged conspiracy by issuing poll-tax receipts to voters favorable to them, without being assessed as required by law, and to put such names on the clerk’s delinquent list; that 150 names were thus placed on the clerk’s list; that they placed the names of 60 women voters on the taxbooks by adding the words “and Mrs.,” with the initials of the husband, after the husband’s name, and that these women had not been assessed properly; that other names were improperly placed on the taxbooks by them, and that a number of poll-tax receipts were issued after «July 3, in violation of law. Many individual voters were challenged in a number of townships, and other allegations of irregularities on the part of election judges in permitting many persons to vote who were not qualified electors, were made, the contention being that such votes cast for the contestees should be thrown out, and, by so doing, would result in the nomination of the contestants.

The case was submitted to the learned trial judge without a .jury, a jury'not being necessary or proper under the law. Section 3773, C. & M. Digest. The hearing was begun on September 14, and, after very patiently and painstakingly hearing a mass of testimony, running through a record of almost 1,000 pages, the court, on September 25, rendered a- judgment finding that San-derson had defeated Taaffe for sheriff and collector by 46 votes, and that Cobb had defeated Collins for county judge by 13 votes. To reverse this judgment the con-testees have appealed to this court.

Before proceeding to a discussion of the issues we. deem it proper to observe that the real object of the courts in all election contest cases is to determine whether the contestant or the respondent has received the highest number of legal votes. This should be the guiding star, like the Star of Bethlehem to the wise men of old. This court, 50 years ago, in the case of Govan v. Jackson, 32 Ark. 553, so held, and, further, that the contest is “not confined to the ground specified in the contestant’s notice of contest.” This case was cited with approval in Ferguson v. Montgomery, 148 Ark. 83, 229 S. W. 30, and in McLain v. Fish, 159 Ark. 199, 251 S. W. 686.

There can be no real representative form of goverm ment, no real representative democracy, without honest elections, and there can be no honest elections where the will of a majority or plurality of the qualified electors is. thwarted and not permitted to prevail. In order to prevent .this the Legislature has passed many laws, including what is commonly known as the Corrupt Practice Act, § 3896 et seq., C. & M. Digest; and the people, by the initiative, have enacted a law known as the Brundidge Primary Election Law, § 3757 et seq., 0. & M. Digest. These acts were born of experience, and the courts have sustained and enforced them.

We come now to a consideration of the points of law raised by counsel on this appeal. -

1. It is first contended that Sanderson failed to comply with the Corrupt Practice Act in that he failed to file the pledge required by § 3898 of C. &. M. Digest with the county clerk thirty days before the election, ‘ ‘ stating that he is familiar with the requirements of this act, and will, in good faith, comply with its terms.” This complaint does not apply to Cobb. Sanderson did file in proper time the following pledge: “I, James Gr. Sander-son, hereby certify that I am familiar with the Corrupt Practice Act applying to the Democratic primary, and all of the laws governing same.” His pledge was defective in that he omitted to say that he would in good faith comply with its terms, and appellant Taaffe contends that this was a fatal defect., for the reason that he could not legally be a candidate until he had literally complied with this requirement. We do not think this point well taken, and we hold that this was a substantial compliance, especially so in view of the fact that it is not contended that any other provision of- this act was. violated or that Sanderson was guilty of any of the corrupt practices denounced hy the act. Moreover, it is difficult to perceive how Taaffe can be heard to complain of this defect in the pledge, if, in fact, he did not receive a sufficient number of votes to give him the nomination, as the court held. Certainly, if he did not receive a plurality of the votes, no court could declare him the nominee.

2. The next contention is that the complaints of both contestants were not supported by the affidavits of ten qualified electors as required hy law* and that San-derson was not himself a qualified elector. No such contention is made as to Cobb. Each complaint is supported by eleven affiants who claim to be qualified electors. By § 3772, C. & M. Digest, the complaint must be supported “hy the affidavits of at least ten reputable citizens,” the words “qualified electors” not being used. But this court held in Simmons v. Terrall, 145 Ark. 588, 224 S. W. 977, that the word “citizens” as used in the act is synonymous with the word “electors.” So the meaning is the same. One of the affiants, C. P. Smith, was a citizen and resident of Jefferson Township, just outside the corporate limits of the city of Ashdown, and, 12 days.before the primary election, he removed from thence to ward 2 in the city of Ashdown. With the exception that he had not resided in ward 2 thirty days at the date of the primary, or at the date of signing the affidavit, he was in all respects a qualified elector. The court held that this affiant was not a qualified elector, and appellant cannot complain. We do not decide whether the court properly so held, as it is not necessary in this case. There does not appear to he any serious contention about the qualifications of the other ten affiants, except as to two, Joe Grill and G. C. Cobh, but it is suggested that they were not sworn according to law. Counsel are in error, as the affidavit appended to the complaint is in due form. It appears that tax receipts for affiants Joe Gill and G. C. Cobb were obtained from the collector in apt time by others, at their request, on their promise to pay, and for which they did pay. The same thing’ is true with reference to Sanderson. His partner, Mr. Orton, obtained a tax receipt for all members of the firm of Sanderson & Orton and for a number of their employees, tenants and customers, including Joe Gill. G. 0. Cobb’s poll tax was paid by check of the Cobb Grain Company. There is no merit to this contention. Whittaker v. Watson, 68 Ark. 555, 60 S. W. 652; last case of Cain v. CarlLee, 171 Ark. 334, 284 S. W. 40. In the latter case this court said: “The evidence in this case shows affirmatively and beyond dispute that there- was no element of gift involved in the payment of the poll taxes of the seventeen persons hereinbefore referred to; therefore the payment made for them does not fall within the condemnation expressed in Whittaker v. Watson, supra.”

3. It is further contended under this heading that payment of the poll taifces in question was not made until after July 3, and that this disqualifies them. The facts are that the firm of Sanderson & Orton is a very large taxpayer, the tax bill of this firm amounting to approximately $7,000. The collector issued the poll-tax receipts for this firm in apt time, but actual pajunent therefor was not made by the firm until required by the collector before settlement. The effect of this transaction was that the collector extended credit to -this firm, in accordance with the usual and almost, if not entirely, universal custom so to do in the case of banks, trust companies and other large taxpayers, who pay taxes not only for themselves but for their customers and clients. The fact that a bank, as my agent, has paid my poll tax after Saturday before the first Monday in July, by an arrangement with the collector not to pay before that time, certainly could not have the effect of depriving me of my constitutional right of suffrage. The collector is responsible on his official bond for any credit extended taxpayers, and is not even subrogated to the State’s right of lien. N. Y. Life Ins. Co. v. Nichols, 170 Ark. 791, 281 S. W. 21. We therefore overrule this contention.

4. It is next contended that the court erred in refusing to render judgment for the contestees at the close of contestant’s evidence. This contention is based on the ruling of the court that it would require both parties to introduce all proof relative to the disqualification of voters challenged, so as to enable the court to determine such qualifications, and then the ballots would be opened and canvassed to determine how such persons voted, to enable the court to determine the net result on each contest ; and the contestants closed their case with the reservation of the right to offer the ballots in evidence at the conclusion of all the testimony. There was no error in this ruling, as trial courts are vested with a very large discretion in determining the orderly course of the trial, and this court will not reverse therefor, except for a manifest abuse of such discretion. Furthermore, this court seems to have recognized the correctness of this procedure in the case of Blann v. Benton, 171 Ask. 805, 284 S. W. 40.

5. It is next contended that the court erred in holding that the women voters who were on the so-called “Mrs.” list hereinbefore mentioned were not qualified electors, 49 of whom voted for Taaffe, and one of whom voted for Sanderson, and 6 for Cobb. A majority of the court, with which Mr. Justice Wood, Mr. Justice Hum-phreys and the writer of this opinion do not agree, hold that this contention is not well taken. This identical question as now raised has never before been directly decided by this court. The authority for the right of women to vote is contained in Amendment No. 19 to the Federal Constitution 'a-s follows:

“The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex,” and Amendment No. 8 to the Constitution of this State, a portion of which reads as follows:

“Every citizen of the United States of the age of twenty-one years, who has resided in the State twelve months, in the county six months, and in the precinct, town or ward one month, nest preceding any election at which they may propose to vote, * * * and who shall exhibit a poll-tax receipt or other evidence that they have paid their poll tax at the time of collecting taxes next preceding such election, shall be allowed to vote at any election in the State of Arkansas, ’ ’ etc.

This amendment was adopted at the general election in 1920, and superseded the poll-tax Amendment No. 6 adopted in 1908, which requires the payment of a poll tax of all male persons as a condition precedent to the right to vote. The Legislature in 1909 passed an act, one of the sections of which is brought forward in C. & M. Digest as § 3738, which provides that, after the taxbooks are delivered to the collector, any person whose name has, for any reason, been omitted, or not assessed, may have his name included in the list and placed upon the hooks in the hands of collector, by application to the county clerk at any time before the last Saturday before the first Monday in July, in Avhich ease the clerk shall certify the supplemental list to the collector and charge him with the amount of tax and penalty so added. In addition to the poll tax the clerk is required to assess a penalty of $1 for failure to assess, and, in addition to the assessment of a poll tax in such cases, the clerk is required to assess any property owned by the applicant, which, for any reason, has been omitted from the taxbooks. The majority is of the .opinion that the language of this section is broad enough to include women, although the masculine gender is used throughout the section, and that this contention falls within the principle that, where a privilege is extended to one class of citizens upon certain conditions, and that, subsequent thereto, a like privilege is conferred upon another class, the'conditions attached to the exercise of such privilege by the former class necessarily attaches in like manner to'the subsequent class. There is a well-established principle of law which applies to the construction of constitutions as well as statutes, and that is that a statute extends by inference to cases not originally contemplated when its deals with a class within which a new class is brought by later statutes. Nations v. State, 64 Ark. 467, 43 S. W. 396, and case-note to 4 Ann. Cas. at 7.

In the first CarlLee case, 168 Ark. 64, a number of persons were challenged for the reason that their names had been illegally added-to the taxbooks without being-assessed according to law. The court, in its opinion, does not say that women voters were on the list of such names, and, without mentioning any distinction, quoted with approval from Craig v. Simms, 160 Ark. 269, 255 S. W. 1, and said: ‘ ‘ The statute does not give the county collector the power to assess a poll tax and deliver it to a person otherwise qualified to vote at an election. Hence he can have no such power; his power is only to collect a poll tax as provided.” . .

It is the contention of the majority that the word “person,” as above used, is broad enough to cover both males and females. "While this is true, it is the view of the minority that, since the question was not directly raised, and therefore not before the court, in either the Craig or the CarlLee cases, so much of the opinion in these cases as would include women voters in this regard is obiter, and not authority for the question now before us.

A study of the constitutional provisions relating to the assessment and collection of a poll tax and the provisions of the statutes enacted pursuant thereto, leads inevitably, in the opinion of the minority, to the conclusion that, neither by constitutional nor statutory provision!, is a woman required to assess a poll tax as is required of a man. Section 3, article 14, of the Constitution of 1874 provides for the support of the common schools by the assessment of a tax not to exceed two mills, and by an annual per capita tax of $1 to be assessed on “every male inhabitant of this State over the age of twenty-one years.” The Legislature in 1905 submitted an amendment to this section, which was voted on as Amendment No. 5 at the general election in 1906, and declared adopted by the Speaker of the House on January 17, 1907, in which, the State tax limit for schools was raised to three mills and the per capita or poll tax of $1 was again required of every male inhabitant over the age’ of twenty-one years, and raised the district school tax which might be voted from five to seven mills. Again, in 1918, another amendment to this section of the Constitution was adopted, fixing the State school tax at three mills and the per capita tax of $1 on every male inhabitant over the age of twenty-one years, and authorizing school districts to vote as much as twelve mills in any one year. This is amendment No. 9, and this amendment, together with the enabling acts passed pursuant thereto, was the law in force at the time the election in controversy was held in 1926. Again, in 1925, the Legislature submitted an amendment to this same section of the Constitution, fixing a State tax for schools of three mills, “an annual per capita tax of $1 to be assessed on every male inhabitant of this State over the age of twenty-one years,” and fixed eighteen mills as the limit to be voted in school districts. This amendment was submitted at the general election in October, 1926, and was declared adopted by the Speaker of the House in 1927, and now appears as Amendment No. 11, so designated by the Secretary of State. So it will be seen that the Constitution nowhere provides for or requires the assessment of an annual per capita tax of $1 on any person except males over the age of twenty-one years. Nowhere do we find a provision that women are required to assess and pay an annual per capita tax. It will be seen from the woman suffrage amendment, heretofore mentioned, that every citizen of the United States is permitted to vote “who shall exhibit a poll-tax receipt or other evidence that they have paid their poll tax at the time of collecting taxes next preceding such election.” The other provisions of the Constitution heretofore mentioned require males to assess a per capita or poll tax, but the only requirement with reference to women is that, in order to vote, they shall exhibit “a poll-tax receipt or other evidence that they-have paid their poll tax at the time of collecting taxes next preceding snob election. ’ ’ The sections of the statutes relative to the assessment and collection of such annual per capita tax nowhere use language indicating any such requirement of women. See §§ 8979, 8993, 9889, C. & M. Dig. It is therefore the opinion of the minority that a woman is not required to assess or pay a poll tax in any event, unless she wishes to pay same in order to vote, and that the clerk could not assess her for a penalty for failure to assess at the time required of a man, because she is not required to do so, and that the provisions of § 3738 of the Digest are not therefore applicable to women voters.

6. It is next contended that the court erred in holding certain voters not to be qualified electors because not legally assessed on what is known in the record as the “clerk’s list.” The court for this reason threw out 15 votes for Taaffe and 25 votes for Collins. The clerk, after turning the personal taxbook over to the collector, opened in the back of the book what is called the “clerk’s list,” and on this list is placed the names of parties who failed to assess their poll tax during the assessment-time, and their names were afterwards added. The clerk himself assessed four of such persons, hut neither the clerk nor his deputies assessed any other names on such delinquent list. After turning the hook over to the sheriff with the four names on it, he told the sheriff and his deputies to put the names of any delinquent persons thereon who desired -to be assessed, without bothering him about it. Thereafter, when delinquents came to the collector’s office who wanted to he assessed and pay the tax and penalty, they were permitted to do so, and the sheriff or his deputies added such names to the list. The court threw out such names added by the collector’s office, on the ground that they had not been properly assessed, as provided by § 3738, C. & M. Digest, and we think this action of the court was proper. Craig v. Sims, 160 Ark. 275, 255 S. W. 1; Cain v. CarlLee, 168 Ark. 69, 269 S. W. 57.

7. It is next contended that the court erred in holding five voters from other counties not qualified because they failed to file with the judges of election their poll tax receipts, or certified copies thereof, or that the judges of election failed to return such evidence of qualification with the ballots. It was agreed that these persons had all the qualifications of electors in the counties from which they moved, and in Little River County, and in the precinct where they resided. But, having paid their poll tax in other counties, they did not appear on the official printed list of taxpayers, and it therefore became necessary for them to follow the provisions of the statute in order to be entitled to vote. Section 3777, C. & M. Digest. Since the same rules of law would apply to such voters as would to persons who had become twenty-one years of age since the last assessing time at which they could have assessed and been on the list, after twenty-one, raised by appellants’ assignment No. 9,' we will discuss the two together. Twenty-one votes for Taaffe and 17 for Collins were thrown out by the court of persons voting who had become twenty-one years of age within such time. We hold that there was no error in so doing, as the exact question is decided adversely to appellants’ contention in McLain v. Fish, 159 Ark. 199, 251 S. W. 686; Craig v. Sims, 160 Ark. 267, 255 S. W. 1; Storey v. Looney, 165 Ark. 455, 265 S. W. 51; Wilson v. Danley, 165 Ark. 565, 265 S. W. 358; and in the three CarlLee cases.

8.' The next contention of counsel is that the court erred in holding that the printed list of qualified electors was an official list and that the voters at the election who did not appear on such list, and whose vote was not accompanied by the other evidence required by law of the qualification of the voter, were not qualified electors, and threw out 14 for Taaffe and 10 for Collins of such votes for such reason. Section 3740 of C. & M. Digest makes certain requirements with reference to this official list of qualified electors of the county, and this section was not literally complied with. We hold that the requirements with-ref erence to the publication of such list were substantially complied with. All parties so recognized it until this contest arose, and it bore the printed signature of the county clerk, certifying thereto, and that, if á voter’s name 'did not appear thereon, he would he required to file with the judges other evidence of his qualifications, and such evidence would have to he returned by the judges, under the authority of the cases heretofore cited.

Several other contentions are made by counsel for appellants, but we do not deem it necessary to take them up separately and discuss them, as to do so would unduly extend this opinion, if not already too long. But suffice it to say that we have examined each of the contentions carefully and do not find any error of the court sufficient to justify a reversal of this case. The judgment of the circuit court is therefore affirmed.


author: Hart, C. J.,

text:
    Crown Central Petroleum Company v. Frick-Reid Supply Company.
    Opinion delivered May 9, 1927.
    1. Mines and minerals — implied contract. — Where the owner of an oil and gas lease, without any. contract, made connection with the main line of the gas company and used its gas in drilling oil wells, there was an implied contract to" pay for the gas used.
    2. Mines and minerals — lien for material. — A lien given by Acts 1923, p. BOO, § 1, for labor performed and material furnished in drilling or operating oil or gas well, .must have its foundation in contract, express or implied.
    3. Mines and minerals — lien for gas used in drilling. — Where the owner of an oil and gas lease, without any contract, made connection with the main line of the gas company and used its gas in drilling oil wells, there was an implied contract to pay for the gas, for which the gas company had a lien on the lease under Acts 1923, p. 500, § 1.
    4. Mines and minerals — fuel material. — Acts 1923, p. 500, § 1, gives a materialman who shall furnish fuel material a lien for gas used in operating .an oil drill, since the gas was intended to constitute fuel material just as much as coal, oil, or wood.
    5. Mines and materials — right to lien. — Where the owner of an oil and gas lease made connection with the line of a gas company and used its gas in drilling three oil wells, and was thus hound under implied contract to pay for the gas used, the transaction constituted an entire one, and the gas company could file a lien against all of the wells drilled on leasehold, undgr Acts 1928, p. 500, § 1.
    6. Mortgages — priority of materialman’s lien. — The lien for material furnished in drilling oil wells under Acts 1923, p. 500, § 1, held superior to that of the holder of a mortgage executed after the wells were drilled.
    Appeal from Union Chancery Court,' Second Division; George M. LeCroy, Chancellor;
    affirmed.
    STATEMENT OE FACTS.
    This appeal involves the priority of the appellant’s claim to a lien to an oil and gas lease to that of several materialmen and laborers on said lease.
    The record shows'that the Center Oil Company was the owner of an oil and gas lease in the Norphlet area of the El Dorado field in Union County, Arkansas. The Center Oil Company drilled three producing wells and carried its oil to the United Central Oil Corporation, and gave it a mortgage on its wells. The United Central Oil Corporation conveyed its lien to the Crown Central Petroleum Corporation, and it tasked that its claim in the sum of $10,527.38 be declared a first lien on the interests of the Center Oil Company. Frick-Reid Supply Company, between the 25th day of June and the 20th'day of August, 1924, sold and delivered to the Center Oil Company materials which were used in drilling the oil wells above referred to, and there remained due and unpaid on said account the sum of $4,446.10. The Natural Gras & Petroleum Corporation furnished natural gas which was used in drilling said oil wells, and claims a materialman’s lien on said oil and gas lease to secure the sum of $1,450. Two laborers also filed liens for small amounts. The' facts will be specifically stated- and discussed under appropriate headings in the opinion. •
    The chancellor found that the claim of Frick-Reid Supply Company in the sum of $4,446.10 and that of the Natural Gas & Petroleum Corporation in the sum of $1,450 should be declared to be liens for material prior to the lien of the appellant. The court also allowed the claims of the laborers, and declared them to he a lien upon said oil lease. The court made a specific finding that the mortgage lien of appellant was subordinate to the liens of the Frick-Reid Supply Company and the Natural Gas & Petroleum Corporation for the materials furnished and used in the drilling of said oil wells. A decree was entered of record in accordance with the findings of the chancellor, and, to reverse that decree, appellant alone has prosecuted an appeal.

      Rose, Hemingway, Cantrell & Loughborough, for appellant.

      Kitchen & Harris, Jeff Davis and J. S. Brooks, for appellee.
   Hart, C. J.,

(after stating the facts). Appellant seeks to defeat the claim of the Natural Gas & Petroleum Corporation on the ground that the gas furnished and used in drilling the oil wells in question was sold to the Center Oil Company on general account, and that the credit was given wholly to the contractor without reference to the use which was to he made of the materials. Hence it is claimed that there is no lien under the statute in favor of the Natural Gas & Petroleum Corporation. The evidence shows that the Natural Gas & Petroleum Corporation had pipe lines near where the Center Oil Company was drilling its oil wells. Without any contract, the Center Oil Company made connection with the main line of the gas corporation and used its gas in drilling its oil wells. Under this state of facts there was an implied contract on the part of the Center Oil Company to pay the Natural Gas & Petroleum Corporation for its gas which was used in drilling and operating said oil wells. It is true that the foundation of the right to secure a lien for labor performed or material furnished must be a contract with the owner of the land upon which the lien is sought to he enforced, and, if there does not exist such a contract, express or implied, the person claiming it must fail. Thornton’s Law of Oil and Gas, 4th ed. vol. 1, § 371. This holding is in accord with our construction of our materialman’s lien statute. In Burel v. East Arkansas Lumber Co., 129 Ark. 58, 195 S. W. 378, 10 A. L. R. 1017, it was held that the lien given by the statute must have its foundation in contract and must correspond with the contract.

In the case at bar the lien is given by § 1 of act 615 of the Acts of 1923. General Acts of 1923, p. 500. The section provides, in effect, that any person who shall, under contract, express or implied, with the owner or lessee of any gas, oil or mineral lease in land, perform labor or furnish materials or supplies used'in digging, drilling and operating any oil or gas well, shall have a. lien on the whole of such leasehold interest in said land.

As we have already seen, when the lessee of the oil lease made the connection with the mains of-the gas corporation and used its gas in drilling its oil wells, there was an implied contract to pay for the gas, and this gave the gas corporation a lien upon the lease under the provisions of the statute above referred to. In no sense of the word could it be said that the gas corporation furnished the gas on general account and extended credit to the owner of the leasehold without reference to the use which was to. he made of the gas. There being an implied contract to pay for the gas, and there being no general credit extended to the owner of the lease, fhe provisions of the statute apply, and its provisions fit the facts exactly.

It is next insisted that the language of the statute does not give the -materialman a lien for gas used in operating the oil drill. In making this contention they refer to the language of the statute which .gives a lien to any person or corporation who shall “furnish fuel material. ’ ’ They contend that it was the legislative intention to give a lien to persons who furnish coal, wood or oil for fuel purposes. We cannot agree with counsel in this contention. It is perfectly plain to us that gas was intended to constitute “fuel material” just as much as coal, wood or oil which might be used for that purpose.

It is next contended that there is no lien under the statute because there was no separate contract for the oil wells. As we have already seen, the lessee connected with the-gas main of the gas corporation and used its gas in drilling the three wells. There was an implied contract to pay for the gas, and the transaction constituted an entire one. This court, in the construction of our mechanics’ lien statute, says that a lien for materials furnished may be filed against two or more buildings located.on lots which are not contiguous. Burel ,v. East Arkansas Lumber Co., 129 Ark. 58, 195 S. W. 878, 10 A. L. R. 1017, and Carr v. Hahn & Carter, 133 Ark. 401, 202 S. W. 685. In the case first cited it was held that a chancellor’s finding, that the construction of several buildings on lots which were not contiguous was done under a single contract so as to support a mechanic’s lien on all the lots for the materials used on th.e job, will not be disturbed on appeal where the evidence shows that the parties treated the building operation as one joint piece of work. In a case-note to 10 A. L. R., at page 1026, it is said that the great weight of authority is to the effect that, where labor is performed or materials furnished under one contract and for one owner, for two or more buildings located on distinct but contiguous lots, a single mechanic’s lien may be filed against all the buildings. Numerous cases from courts of last resort of the various States are cited which support the text. The same rule applies here, and we are of the opinion that the parties treated the transaction in question as an entire contract, and the gas corporation-had a right to file a lien against all the wells drilled on the leasehold.

In this connection it may be stated that the claim of the Frick-Reid Supply Company was for materials furnished and used in drilling the three oil wells under a single contract, and what we have said above applies with equal force to its claim. The liens of both claimants were filed within the statutorj7 length of time, and we need not consider whether or not they were superior to the liens of the laborers, because the appeal has been prosecuted for the benefit of the appellant- alone, who claims a superior lien by virtue of a mortgage which was assigned to it.

The mortgage given by the Center Oil Company and assigned to the appellant falls squarely within the rule announced in Ferguson Lumber Co. v. Schriber, 162 Ark. 349, 258 S. W. 353. In that case it was held that, under our statute tliat a materialman’.s lien relates back to the commencement of the building, a plaintiff, under contract to furnish materials for a building, takes precedence over a mortgage, where it began to furnish the materials before the mortgage was filed for record. The facts of this case bring it within the rule there announced, and the lien of the claimants for material is superior to that of the holder of the mortgage.

The construction we have given this lien statute is in accord with our holding in Pierce Oil Corporation v. Parker, 168 Ark. 400, 271 S. W. 24. In that case, under our statute requiring road contractors to pay for labor and materials used in the prosecution of the work, persons supplying oil or gasoline to he used in operating motor-trucks engaged in hauling stone for the construction of the highway cannot be said to be supplying material to be used in the prosecution of the work. On the other hand, it was held that materials which are used directly in the construction of improved roads are lienable. In the case at bar, the gas was used directly in operating the oil drill, and therefore was used in drilling the wells, .just as dynamite or other explosives used in breaking up earth are materials used within the meaning of the statute providing a mechanic’s lien for the use of such materials in the prosecution of the work.

The result of our views is that the decree of the chancellor was correct, and it will therefore be affirmed.


author: Wood, J.

text:
    Holford v. State.
    Opinion delivered May 9, 1927.
    1. Intoxicating liquors — burden of proof. — On an indictment ior manufacturing a still in violation of Acts 1921, p. 372, § 4, the burden is on the State to prove beyond a reasonable doubt that accused manufactured a complete still.
    2. Intoxicating liquors — weight and sufficiency of evidence.— Evidence that defendants were making a copper vessel in a secluded place, and that one defendant, when arrested, said it was his'“first time,” and afterward said he would like to get out easily, held insufficient, as mere suspicious circumstances, to raise a question for the jury in a prosecution for manufacturing a still in violation of Acts 1921, p. 372, § 4.
    3. Intoxicating liquors — attempt to manufacture still. — A mere attempt or intention to manufacture a still is not a violation of Acts 1921, p. 372, § 4, providing that no person shall manufacture a still without license.
    4. Intoxicating liquors — uncompleted vessel not a still.. — An uncompleted coppe’r vessel which could not be used as a still for separating the alcoholic spirits from fermented substance without additional appliances such as a blanket or cover and worm is not a still, within Acts 1921, p. 372, § 4, prohibiting the unlicensed manufacture of stills.
    5. Intoxicating liquors — manufacture of still defined. — Acts 1921, p. 372, § 4, prohibiting the unlicensed manufacture of a still refers to the finished product which can be used in the production of alcoholic spirits.
    6. Statutes — construction of criminal statutes. — The courts should construe criminal statutes strictly, and not so as to create offenses under statute which are not in express terms created by the Legislature.
    7. Intoxicating liquors — manufacture of still. — Merely engaging in the process of manufacturing a still is not a crime within * Acts 1921, p. 372, prohibiting the manufacture of a stjll without license, as the law is not violated until the still is completed.
    Appeal from Sebastian Circuit Court, Greenwood District; Cecil Warner, Special Judge;
    reversed.

      Holland & Holland, for appellant.

      H. W. Applegate, Attorney General, and Darden Moose, Assistant, for appellee.
   Wood, J.

W. A. Holford and Eris Pitcliford were jointly indicted in the Sebastian Circuit Court for the crime of manufacturing a still. Will White testified that he was marshal of the. city of Hartford. He arrested the defendants in July or August, 1925. He found them about 3y2 miles west of Hartford, in a woodland about three or four hundred yards west of Pitchford’s house. They were behind a thicket from where he-approached them. Witness could not see them until he got to them. They could not have been seen from the public road. Witness and the two parties who were with him arrested Holford and Pitchford. They were standing there around a good sized wood fire. They had soldering irons in the fire and the solder was lying by it. There was a hammer on the ground with the rest of the utensils. Before witness and his assistant officer came up they heard rattling like laying tin on the floor. The defendants had a fruit jar there with a little whiskey, in it, and a bottle of acid and a smoothing iron. Witness identified the articles that were found. There was a large can made of copper and there were also pieces of copper. When Holford and Pitchford were arrested we searched them, and Holford said he didn’t have any gun. Witness looked around to see if they could find anything else that might be connected with a still, but could not find anything. The whiskey in the jar was corn whiskey. There was not over a quarter or half inch in the bottom of the jar. They arrested them for making a still. The still consisted of a copper tank, which was exhibited to the jury. In the making or manufacture of whiskey it is necessary to have some kind of container in which the mash or fermented liquor is put, then the heat is applied so that the vapor will rise and pass into a pipe or worm for condensation. The next step is to put the fire under it, and some arrangement has to be made whereby the vapor could be retained. It has to be inclosed. There must be a worm or some kind of contrivance or pipe whereby the steam that is retained in the vessel can be drawn off and cooled, through water or otherwise. The vapor could not be confined to the can exhibited, because it was open. There was no opening' whereby a stillworm or pipe or substitute for a worm could be connected so the vapors could be drawn off. The witness then describes minutely the can and appliances which were found. There were two sheets of copper at the place — one large sheet and one small — -that appeared to be scraps from which the vessel was made. The other articles were tools and material used- in the making of the vessel. It was agreed that neither of the defendants had made application and paid for license as a maker of stills.

Harlan Read, who assisted the marshal in making the arrest, testified, substantially corroborating the testimony of the marshal, except he testified that the character of the woods on the other side of the thicket was open. Witness thought that the parties corild have been seen from the road on that side, which was about 350 yards distant, and it was also about the same distance from Pitchford’s house. The parties were all standing together. Pitchford said that it was his first time to be caught, and then later on said he would like to get out of it as easy as he co.uld. He was talking to Mr. Meyers. The defendants were told, when arrested, that they were being arrested for making'the articles which the officers called a still. Witness was not sure whether he said he had never sold any whiskey. Witness was asked the following questions:

• “Q. Didn’t he say that that was the first time he ever was arrested; that that was his first time to be arrested? A. He said that was his first time — I don’t know whether it was his first time of being arrested. Q. I will ask you if he did not say that that was the first time that he was ever arrested? A. First time he was caught. Q. Did he say caught? Do you remember that he said it was the first time he was caught? A. He said, ‘This is my first time;’ he never said whether arrested or caught either one. Q. Then you did not intend to say a moment ago that he said it was his first time to be caught? A. I will not be positive. Q. You are not sure whether -he said the first time to be arrested or to be caught? Any way be did say first time A. He said it was bis first time. ’ ’

Witness further stated that be never saw a still in operation, and did not know enough about it to qualify as to what makes a still. He would 'not undertake to state that the vessel exhibited was a completed still. Witness called it a still.

The deputy sheriff, Stewart, testified that he had been in possession- of the articles captured by Reid and White. He gave the dimensions of the can as follows: 21% inches on the inside across the flat side, from the flat side to the other side 17% inches, and 17%‘ inches across the bottom. The dimensions from top to bottom are practically the same. Witness had captured a number of stills. In a completed still there is a boiler or receptacle for boiling the mixture to create vapor and the withdrawing of the vapor in pipes or coils so as to liquefy it. The copper container or kettle is not capable of being used for the purpose of boiling the mixture to create vapors as it stands; the remaining portion of the kettle could be constructed from the copper sheets that were found by the can. It would have to have a top on it to confine the steam or vapor, and in that top there would have to be a device with an opening suitable to make connection with a pipe or worm, before it could be used as a still. If the large piece of copper, about 2% feet, should be placed on top of the vessel and made a part of it, there would still be lacking the proper contrivance on the top to make a still. It would require some additional equipment on the top or at either end, or side — an opening cut for a pipe connection. There was nothing of that kind delivered to the witness with the articles captured. With the material at hand there was nothing to prevent anybody from putting a top on the vessel like the bottom.

Alfred Stewart was recalled as a witness, and was allowed to testify, over the objection of the appellant, that the vessel introduced in evidence could not be used as a still without something being placed over the top of it. They could take a heavy woolen blanket or something of the kind that would absorb the moisture and put it over the vessel and wring it out. It has been done that way. The vessel could have been converted into a still in that way. Any vessel that could be used in that way to boil the mash would make a still. Witness would not designate such' a vessel as a still, but it could be used for that purpose. The vessel in controversy witness would not call a still, but, by putting a blanket over it, it could be made a still.

The sheriff of the county testified, over the objection of the appellant, that it was possible to use the vessel exhibited as a still by covering it with a blanket or something that would hold the vapor which comes from the mash and then wring out the blanket or covering. Alcoholic liquor could be produced in that way, the same as if it went through a pipe. It is possible to make whiskey in a vessel of that nature. Witness did not know about a small vessel like a water bucket, but it would be possible with a container of the size of the one exhibited, if covered with a blanket or other covering in the manner stated.

George McLaughlin testified, on behalf of the defendants, that he knew the defendants; that he saw Pitchford some time in July or August, 1925, with reference to making some syrup for witness from sorghum came. Pitchford told witness that he would be ready to make the syrup in three or four days; that he had to make a cooler to his pan someway. Pitchford was a good syrup maker. He was a farmer, and also engaged in raising cane and making molasses for himself and others. In making sorghum the defendant used a copper vessel somewhat similar to the vessel in evidence. The can was used to cool the syrup. Witness described the manner in which the can was used for cooling syrup. Witness was in no way related to the defendant.

Two other witnesses testified to the effect that Pitchford was a farmer and had a sorghum mill. He used a copper vessel for the purpose of cooling the sorghum. This was customary. The vessel was about 18 inches or 2 feet long and about 16 inches deep and ten inches wide— something like that.

The defendant himself testified that he was a farmer, and also made syrup for himself and people in the community. He had been engaged in that business ever since he reached his majority, and his father had been engaged in the sanie business before him. That was his lousiness in 1925. Witness was under contract to make syrup for McLaughlin, and, when McLaughlin came to see witness about it, witness was not prepared to make the syrup on that day, because he did not have a qooler, and witness, at the time he was arrested, was manufacturing the can which was introduced in evidence to be used as a cooler for making syrup. Witness employed Holford to assist him. They started to make the vessel in front of witness’ gate, but witness’ little boy came out where they were and picked up the bottle of acid. Witness then told Hol-ford they would go down in the pasture to finish making the vessel. This they did, and that is where the officers arrested them. Witness had never seen a still made and witness had never heard of the possibility of making a still in the manner described by some of the witnesses. Witness did not know, at the time he was making' this vessel, that it was possible to convert the same into a still by putting a blanket over same, etc., as described by some of the witnesses. Witness told the officers, at the time he was arrested, that he. had never made any whiskey, had never sold any whiskey, and that was the first time he was ever arrested. These statements were true. Witness wanted to make a can that would hold about a day’s run of syrup — 45 or 50 gallons — and witness was told by the man from whom he bought the copper that it would make a can of about that capacity. Witness had not finished the can when the officers arrested him. He intended to put an end on the can. The large piece of copper that was found with the can had been cut and fitted on the end just like the other end. Witness then described the manner in which the can was to be used as a cooler, exhibiting the same to the jury. Witness further explained what he said to the officers when he was arrested by saying, “The officers called' it a still.” Witness said, “Well, that is the first' time I was ever accused of anything like that. I never sold any whiskey and never, made any, and never was arrested before in my life.” Witness told Mr. Reid, one of the officers, that he would like to know how to get out of it, because they had arrested him and had accused him of having a still. Witness told him he wanted to get out of it, because he had never been accused of anything of the kind before. Witness further explained in detail that his purpose in making the vessel was to use the same as a cooler in the manufacture of syrup.

Holford, the other defendant, testified that he was doing the soldering in making the can for Mr. Pitchford. He did not know that they were making a still. Pitchford stated that he was making a cooler for his sorghum mill. On cross-examination witness stated that he had been convicted of a felony about eighteen months -before in Oklahoma. The crime.was for selling whiskey, and the penalty was sixty days in jail and $100 fine.

At the conclusion of the testimony counsel for the defendants prayed the court to instruct the jury to return a verdict of not guilty. The court refused the prayer, to which ruling the defendants duly excepted. The court instructed the jury, over the objection of the defendants, that, if the defendants, within three years next before the indictment was returned, in Sebastian County, Arkansas, unlawfully and feloniously manufactured a still which may be used for the purpose of producing alcoholic and intoxicating liquors, and which was manufactured for that purpose, -without first having qualified under the laws of the United States as a manufacturer of stills and without paying the tax as required by the laws of the United States on stills, they should find the defendants guilty, otherwise they should acquit them.

The court gave the usual instructions on reasonable doubt, presumption of innocence, and the credibility of witnesses. The defendants presented several prayers for instructions, which, in varying form, in effect requested the court to define a still, and to tell the jury that the vessel in controversy could not be used as a still, and, if the jury found that the defendants manufactured the tank in question, but did not manufacture any other device or apparatus whereby the tank could be converted into a still, the jury should find the defendants not guilty.

The defendants further asked the court to instruct the jury in effect that, if the vessel in controversy could not, without use of some other appliance, be used for the production of distilled spirits, they should find defendants not guilty. The defendants further prayed the court to instruct the jury that the vessel in controversy was not a still; and further, to instruct the .jury that, even if they found that the defendants manufactured the tank in controversy intending the same to be used for the production of alcoholic spirits, yet, if the same was not so completed as to make it a still, they should find the defendants not guilty.

At the request of the defendants the court instructed the jury that they had a 'right to make the metal tank in controversy if the same was not, in fact, a still for the manufacture of alcoholic spirits.

The defendants duly excepted to the rulings of the court in refusing their prayers for instructions, and also to the rulings of the court in giving instructions on its own motion. The- jury returned a verdict finding defendants guilty, and fixing their punishment at one year’s imprisonment in the State Penitentiary. Prom the judgment sentencing the defendants in accordance with the verdict is this appeal.

1. The statute under which the appellants were indicted provides as follows:

“No person shall manufacture a stillworm or still without first having qualified under the laws of the United States as a manufacturer of stills, without paying the tax required by the laws of the United States on the stills and worms manufactured. Any person who converts a kettle, washpot, metal can, tank, barrel, or other vessel into a still or who converts any metal pipe of any kind into a stillworm or a condenser for a still, shall he deemed to be a manufacturer of stills.” Section 4, act 324 of the Acts of 1921, approved March 23, 1921.

Before the appellants could be convicted under the above statute it devolved upon the State to prove beyond a reasonable doubt that they had manufactured a still. There is no testimony tending to prove that the appellants had manufactured a still. On the contrary, the undisputed testimony proves that the appellants had not manufactured a still. The only circumstances upon which the State relies to sustain the verdict are that Pitchford, one of the appellants, said, when he was arrested, that it was his first time to he caught; that, later on, he stated that he would like to get out as easy as he could; and the further circumstance that the vessel was being manufactured in the woods three or four hundred yards from Pitchford’s house, in a secluded spot. But the officer who testified on his examination in chief that Pitchford said it was his “first time to be caught” and then later said that he ifwould like to get out of it as. easy as he could, ’ ’ on cross-examination stated that Pitch-ford said, “This is my first time; he never said Avhether arrested or caught, either one.” The officer Avas asked this question: “You are not sure whether he said the first time to he arrested or to he caught?” and answered, “He said it \ATas his first time.” The officer further stated, in answer to the question, “Didn’t Pitchford say ho never made any whiskey and never sold any?” “He said he never made any, and Avanted to get out of it as easy as he could.”

The defendant, Pitchford, himself testified that he told the officer, at the time of his arrest, that he had never made auv whiskeAq had neA^er sold any Avhiskey, and that was the first time he was ever arrested. He further stated that he told the officers that he wanted to get out of it because he had never been into anything of that ldnd before. As to the place where the vessel was being manufactured, one of the witnesses for the State testified that it was in the open woods, beyond the thicket, and that, in his opinion, it could be'seen from the road. The other witness for the State testified that it was in the open woods behind a dense thicket, and could not be seen from the road. In explanation of this circumstance the defendant, Pitchford, testified that they first began the manufacture of the vessel in front of his gate, and his little three-year-old boy came out and picked up the bottle of acid, and they then concluded to move the place of manufacture of the tank into the pasture and to finish the making of the vessel at the place where they were later arrested.

The appellant, Holford, testified that he was employed by Pitchford, and that Pitchford told him he was making a cooler for a sorghum mill. On cross-examination he stated that he had been convicted of selling whiskey in Oklahoma eighteen months before..

If it could be said that these circumstances were of an incriminating character at all, their utmost effect would be to create a bare suspicion that the appellants may have been engaged in the process of manufacturing a still at the time they were arrested, and" that is not sufficient to justify the jury in returning a verdict of guilty against them. In Reed v. State, 97 Ark. 156, 133 S. W. 604, we held that “mere circumstances of suspicion are not sufficient to support a conviction of crime, which must be established by substantial evidence to the exclusion of a reasonable doubt.” France v. State, 68 Ark. 529-532, 60 S. W. 236; Cook v. State, ante p. 711, and other cases there cited; Underhill’s Criminal Evidence, 3 Ed., § 18, and numerous authorities there cited. The testimony of the appellant, Pitchford, was to the effect that he was manufacturing the vessel in controversy for the purpose of using the same as a cooler in connection with his business as a manufacturer of syrup from sorghum cane. His testimony tended to prove that it was a necessary vessel, and was being- properly constructed for that purpose, and the undisputed testimony for the State by all the witnesses was to the effect that, as far as constructed, the vessel could not be used as a still without further and additional appliances. In the absence of some incriminating, testimony tending to show that the vessel was being manufactured by the appellants to be used as a still, we are convinced that the testimony is not sufficient to sustain the verdict, even if it could be said that appellant would be guilty if the vqssel when completed could be used as a still.

2. But it will be observed that the statute does not make the attempt to manufacture a still, or the intention to manufacture a still, or the engaging in the process of manufacturing a still, a criminal offense. The statute, in plain terms, reads, “No person shall manufacture a still,” and it must be such a vessel as would subject the party manufacturing the same to the payment of the tax required by the laws of the United States on stills. The statute defines a distillery as ‘ ‘ any device or any process which separates alcoholic spirits from any fermented substance.” The undisputed testimony in the record shows that the vessel under consideration here was not susceptible of being used as a still or distillery; it was unfinished, whether intended for a still or a cooler for syrup. It was not fit for either in its unfinished state, and could not be used as a still without additional appliances. Unquestionably the vessel, in the condition as found by the officers, was not such as to subject the manufacturer to the tax imposed by the United States laws on the manufacture of stills.

In Hodgkiss v. State, 156 Ark. 340, 246 S. W. 506, we said:

“The word ‘still’ is sometimes applied to the whole apparatus for evaporation and condensation, but in the description of the parts of the apparatus it is applied merely to the vessel or retort used for boiling.and.evaporation of the liquid.” In that case we further said: “Any kind of metal vessel can be improvised as a retort for use in boiling liquid for evaporation, but it was not intended to constitute an offense in having possession of such a vessel.”

Likewise, by analogy, it should be said here that it was not intended to constitute an offense to be engaged in the manufacture of a vessel which could, with additional appliances, be used as- a still, but which was intended for and, more appropriately, could be used as a receptacle or cooler for syrup. In Moore v. State, 154 Ark. 13, 240 S. W. 1083, we said:

“We think the Legislature used the word ‘still’ in its broad sense, and intended to include any device commonly used for separating alcoholic spirits from fermented substances, whether connected up or not, if the various parts had been assembled for the production of alcoholic spirits. Of course, the act was not intended to reach and punish individuals who had in their possession articles which might be converted into a still, unless the articles had been assembled for the purpose of separating alcoholic spirits from fermented substancés.”

Likewise, by analogy, it should be said here that the law levels its inhibition and punishment against those who manufacture stills, that is, the finished product which can be used in the production of alcoholic spirits. The Legislature has not seen fit to make it a crime to attempt, or to begin, the manufacture of a vessel which, if completed, might be converted into a still or be used as a still.

There is no better settled rule in' criminal jurisprudence than that criminal statutes must be strictly construed and pursued. The courts cannot, and should not, by construction or intendment, create offenses under statutes which are not in express terms created by the Legislature. The courts cannot' do so without trenching upon the exclusive functions of the Legislature. It occurs to us that a consideration of the entire act of which'§ 4 above quoted is a part, and the context of that particular section as well, under which the appellants were indicted for the manufacture of a still, proves conclusively that it was not the intention of the Legislature to make it a crime to be engaged merely in the process of manufacturing a still. The second section of the statute, it will be observed, makes it a crime to keep in -possession a still without registering the same with the proper United States officer, and a crime to set up a still. Likewise, the third section makes it a crime to set up and use a distillery for the manufacture of intoxicating spirits. Then comes the language of the fourth section, under which the appellants were indicted for ■manufacturing a still.

Now, it is certain that, under § § 2 and 3, no person could be convicted of keeping in his possession or setting up a part or parts of a still, but which could not be used as a still in the manufacture of liquors. A part or parts of a still which could not be used in the manufacture of distilled spirits would not be subject to registration or taxation under the United States laws. Nor would the person manufacturing a part or parts of an incompleted still be required to pay a license as a manufacturer of stills. ■ The inhibition of the. statute is against the manufacture, keeping, and setting up of stills — not against the manufacture, keeping or setting up of a part or parts of a still, but which are not, and never could be, a still. The Attorney General relies upon the cases of Williams v. State, 159 Ark. 170, 251 S. W. 370; Peoples v. Nanninga, 181 N. W. 1014, 213 Mich. 354; Shoemake v. State, 86 So. 151, 17 Ala. App. 461; State v. Blackwell, 105 S. E. 178, 180 N. C. 733; State v. Pollard, 113 S. E. 69, 120 N. C. 195; and State v. Raven, 74 S. E. 500, 91 S. C. 265, to support his contention that, if the appellants were engaged in the process of manufacturing a still, althoug’h they had not completed its manufacture, they would 'be guilty under the statute.

In the case of Williams .v. State, Williams was convicted of the crime of making whiskey. In -that ease we said:

“If, upon all the facts and circumstances in the case, the - jury might have indulged a reasonable inference that the appellant had manufactured whiskey in said county, within three years next before the finding of the indictments, then the evidence was sufficient to support the verdicts.”

And we held that the evidence showing that the defendants, when arrested, were preparing to make whiskey, their ownership of a still which had been in use' many years for the purpose of making whiskey, together with their confession that they were making the whiskey to sell to get out of debt, and that they had not been making whiskey very long, was sufficient to sustain the charge of malting whiskey.

It would unduly extend this opinion to review the cases from other jurisdictions cited and relied on by the Attorney General. We have examined them, and, when considered in connection with the statutes and the facts upon which each of the particular cases were bottomed, we believe they are differentiated from the case at bar. In one of the cases, State v. Raven, 74 S. E. 500, 91 S. C. 265, the charge was keeping a distillery where liquors were manufactured, and Judge Wood, speaking for the majority of the court, said:

“To constitute the offense of manufacturing liquor it is not necessary that the product of the manufacturer should be complete. Manufacture is the ‘process of making by art or reducing materials into form fit for use, by the hand or by machinery,’ and one employed in this process is manufacturing.”

That doctrine we deem unsound when applied to our statute and the facts of this record. Two of the judges dissenting in that case, among other things, said:

“In .misdemeanors, where an attempt is not an indictable offense, the law recognizes the existence of the point of repentance; and hence, unless the statute expressly makes the attempt or the engaging in the process of manufacturing liquors a crime, one is not guilty Of violating the law until the manufacture is completed, because he could repent at any moment, short of completing- the process, stop, and save himself from the penalty of the law. ’ ’

The views of the dissenting judges we believe to be more in accord with the well-established rules of criminal jurisprudence and are consonant with our own views of the law as applicable to our statute and the facts of this record.

Under the charge in this indictment the burden was on the State to prove that the appellants had manufactured a still. There is not a scintilla of evidence that the appellants had manufactured a still, nor is the testimony sufficient, as we view it, even to justify the inference that appellants were engaged in the process of manufacturing a still.. Appellants were protected by the presumption of innocence which shielded them from conviction on circumstances of mere suspicion. This presumption of innocence entitled the appellants to an acquittal unless the State, by direct or circumstantial evidence, or by both, proved facts sufficient to justify the jury in concluding that the presumption of innocence had been overcome and that the appellants were guilty beyond a reasonable doubt.

We are convinced that the testimony is not sufficient to sustain the verdict, and that the court erred in not so holding and in not granting- appellants’ prayer directing the jury to return a verdict of not guilty.

The .judgments are therefore reversed, and, inas.much as the causes have been fully developed, the prosecutions should be dismissed. It is so ordered.