text:
    Taylor v. Holmes.
    Opinion delivered March 28, 1932.

      M. A. Eathooat, for appellant.

      Cotton Murray, for appellee.
   Butler, J.

This case was submitted to the trial court upon the following agreed statement of facts: •

“That on tbe '29'tb day of August, 1931, the intervener, C. C. Holmes, ’received a draft for $600, indorsed by Fred Mahler, to him, the said' draft drawn by the Farmers’ National Bank of Sparta, Wisconsin, on the Federal Reserve Bank of Chicago, in favor of the said Fred Mahler. That on the same day, August 29, 1931, the said C. C. Holmes deposited said draft in the People’s Savings Bank at Harrison,'Arkansas, and that said bank issued to Mm a deposit slip, which is here exhibited and made a part of this agreement as exhibit A thereto.

“At the close of business on August 28, 1931, the said C. C. Holmes had on checking account in said bank the sum of only $9.47. That the said C. C. Holmes was a regular customer of said People’s Savings Bank. That on the said 29th day of August, 1931, he drew his certain check on said bank for $175, due to a third party, out of the proceeds of said $600 draft, which said check was presented to the bank on the same day and prior to the time when said draft was deposited and was cashed by said People’s Savings Bank. That the said C. C. Holmes had previously been permitted to 'overdraw his account in said bank.

“That the said draft for $600 was immediately forwarded by the said People’s 'Savings Bank to the Bankers’ Trust Company of Little Bock, Arkansas, for deposit, and same was credited to the account of People’s Savings Bank of Harrison, and said item was sent in the regular course of business by the Bankers’ Trust Company to the Federal Beserve Bank of Chicago,'where it was paid September 2, 1931, and the proceeds remitted to the Bankers’ Trust Company, aforesaid.

“That the intervention herein is made for the purpose of having said sum of $600 established as a preferred claim against the said Walter E. Taylor.

“It is further agreed that, on the 31st day of August, 1930, another check of C. C. Holmes for $7.50 was presented to the bank for payment and was paid by said bank, leaving a balance of .only $426.97, to the credit of this intervener in said bank at close of business on August 31,1931. That no deposit was made by the said C. C. Holmes in said bank subsequent to August 29, 1931, and no other checks were paid and charged to his account except as herein set forth; and the amount of his account in said bank when said bank closed was only $426.97.”

The court declared the law to be that the deposit slip issued by the People’s Savings Bank to C. C. Holmes constituted a contract between Holmes and said bank, and that by its terms the draft for $600 was accepted for collection by said bank, the proceeds of which the bank held as a preferred claim under subdivision 6 of § 1 of act No. 107 of the Acts of 1927, and that the balance, after deducting the checks mentioned in the agreed statement of facts, to-wit, the sum of $426.97, should be allowed as a preferred claim. From that finding and decree is this appeal.

It is well settled that the owner of the proceeds of a collection made by an insolvent bank is entitled to have his claim for such preferred to that of general creditors on the theory that the collecting bank is the ag’ent of such owner and the title to the proceeds of the collection remains in the depositor. Act No. 107, § 1, subdivision 6, Acts of 1927; Taylor v. Corning Bank & Trust Co., 183 Ark. 757, 38 S. W. (2d) 557; Taylor v. Dermott Grocery & Commission Co., ante p. 7; Taylor v. First Nat. Bank of DeQueen, 184 Ark. 947, 43 S. W. (2d) 1078. ;Where checks or drafts are indorsed and deposited in the usual course of business, and the bank credits the depositor with the proceeds thereof, the relationship of debtor and creditor arises, in the absence of an agreement to the contrary, even where the right on the part of the bank exists to charge back the check if it proves uncollectable. Taft v. Quinsigamond Nat. Bk., 172 Mass. 363, 52 N. E. 287; Downey v. Nat. Exchange Bank, 52 Ind. Ap. 672, 96 N. E. 403; Sears v. Emerson, 182 Ill. App. 522; Brusegaard v. Ueland, 72 Minn. 283, 75 N. W. 228; Mudd v. Farmers’ etc., Bank, 175 Mo. App. 398, 162 S. W. 314; Covey v. Cannon, 104 Ark. 550, 149 S. W. 514; Calhoun v. Sharkey, 120 Ark. 616, 180 S. W. 216; Taylor v. Dierks Lbr. & Coal Co., 183 Ark. 937, 39 S. W. (2d) 724; and in case of insolvency of the bank the depositor becomes a general creditor. Taylor v. Dermott Grocery & Comm. Co., supra; Kansas City Life Ins. Co. v. Taylor, 184 Ark. 772, 43 S. W. (2d) 372; Tyler v. Citizens’ Bank, 184 Ark. 332, 42 S. W. (2d) 385.

The deposit slip mentioned in the agreed statement of facts had printed on its face: “All checks' and drafts are credited subject to payment as per conditions stated on reverse side hereof.” The conditions on the reverse side, quoted by appellee as material to the question presented, are as follows: “All checks, drafts and papers deposited subject to payment and on express condition that this bank is not responsible for omission, neglect or default of any bank or subagent employed to collect same, but only for good faith and due care in selection of such bank or agencies.” Also the following: “This bank accepts deposits and collections on the following conditions only: (2) items received for collection or credit and not drawn on this bank are taken at depositor’s risk, and, should any such items be lost, and should no returns be received within reasonable time, such items may be charged back to the depositor.”

Another condition on the deposit slip is: “ Should any item be not paid, or any agent fail to remit proceeds therefor, this bank may charge the item back to depositor. ’ ’

It is the contention of the appellee that these provisions of the deposit slip created the relationship of principal and agent between the depositor and the bank as effectually as if the words, “for collection,” had been written on the face of the deposit slip, and this conclusion was reached by the court below. The only question therefore, is, Was the check a general deposit and accepted as cash by the bank, or was it a deposit for collection?

The depositor was a regular customer of the bank with a checking account which at times would be overdrawn. The check was deposited in the usual course of business, and credit was given therefor, and checks drawn against the general account in which it was placed, so that, at the time the bank became insolvent, the depositor was due only the sum of $434.47. By his indorsement of the draft the depositor guaranteed its payment, and the bank had the right to charge the same back to the depositor in the event it was not paid. K. C. Sou. Ry. Co. v. First Nat. Bank of Ft. Smith, 174 Ark. 447, 295 S. W. 357; Taylor v. Dierks Lbr. & Coal Co., supra. Therefore the conditions on the deposit slip gave the hank no right that it did not already have. Whether the deposit was for collection merely or a general deposit depended on the intention of the parties to the transaction, as shown from all of the circumstances in the case. Ark. Trust & Banking Co. v. Bishop, 119 Ark. 373, 178 S. W. 422. We think the circumstances of this transaction contain nothing to rehut the presumption that the draft was a general de.posit, and we find nothing in the language of the conditions printed on the deposit slip that would show that this was not the intention of the parties. Tyler v. Citizens’ Bank, supra.

It follows from what we have said that the trial court erred in its decree, which is therefore reversed, and the cause remanded with directions to allow the claim of the appellee as that of a general creditor:


source: Caselaw Access Project

author: Hart, C. J., Hart, C. J.

license: Public Domain

text:
    Gates v. Bank of Commerce & Trust Company.
    Opinion delivered June 29, 1931.

      Hal L. Norwood, Attorney General, Walter L. Pope, Assistant, David A. Gates, and George Vaughan, for appellant.

      John F. Park and Bridges, McGaughy & Bridges, for appellee.
   Hart, C. J.,

(after stating the facts). It is the settled law that inheritance taxes are not levied upon property, but upon the privilege or right of succession to it. State v. Handlin, 100 Ark. 175, 139 S. W. 1112; McDaniel v. Byrkett, 120 Ark. 295, 179 S. W. 491; Rhode Island Hospital Trust Co. v. Doughton, 270 U. S. 69, 46 S. Ct. 256; and Blodgett v. Silberman, 277 U. S. 1, 48 S. Ct. 410.

These cases sustain the principle that, while an inheritance tax is not upon property but upon the right of succession to property, yet the principle is that the subject to be taxed “must be within the jurisdiction of the State, as well in the case of a transfer tax as in that of a property tax. The reason is that the State has no power to tax the devolution of the property of a nonresident unless it has jurisdiction of the property devolved or transferred.

It is conceded by the parties that a right to a refund of the tax depends upon the validity of subdivision C of § 10,218 of Crawford & Moses’ Digest. The subsection provides for an inheritance tax upon the transfer of shares of stock of all corporations organized and existing under the laws of the State, certificates of which shares of stock shall be within or without the State.

Counsel for appellee seek to uphold the judgment of the circuit court upon the rule or maxim, Mobilia sequunter personam, as applied by the Supreme Court of the United States in several recent cases. In the Farmers’ Loan & Trust Co. v. Minnesota, 280 U. S. 204, 50 S. Ct. 98, it was held that negotiable bonds and certificates issued by the State and certain municipal corporations of Minnesota were not subject to an inheritance tax in the State of Minnesota, the owner having died testate and residing in the State of New York. The court applied the rule, Moioilia sequunter personam, and treated the bonds and certificates of indebtedness as localized at the creditor’s domicile for taxation purposes. Consequently, it was held that their situs for taxation being in another. State, they were taxable there, and not in the State of Minnesota where they were issued. The court proceeded upon the theory that the" bonds and certificates of indebtedness were only evidence of the debts; and, when carried by the owner to another State, their situs as debts took the domicile of the owner, and that their testamentary transfer might be taxed only in the State where they were found. The reason was that their legal situs as debts was at the creditor’s domicile, and they were taxable as property there. The logical result was that the taxation upon the right of succession to the property must be laid in the State where the owner of the property resided at the time of his death and where the property had its legal situs.

In the case of Baldwin v. Missouri, 281 U. S. 586, 50 S. Ct. 436, a resident of the State of Illinois died there owning certain bank -deposits in 'banks located in the State of Missouri and certain coupon bonds of the United States and promissory notes on deposit for safe keeping in the State of Missouri. It was held that the State of Missouri could not levy a tax upon the succession to this property because its legal situs followed that of its owner and was in the State of Illinois. The court said that bank deposits were mere credits,''and for purposes of ad valorem taxation have their situs at the domicile of the creditor only. The certificate of deposit was merely the evidence -of title of the owner of the deposit, and he might carry that with him wherever he went. So, too, the notes and United States coupon bonds, under the rule that the situs of personal property follows the owner, acquired a legal situs in the place where he resided. Under that rule, they were taxable as property at the owner’s domicile, which became their legal situs, and the succession tax should have been laid in the State where the owner of these evidences of debt resided. If the evidences of debt had been destroyed, the right of the owner to demand payment of the debts would have remained. The court, in effect, held that the decedent was a creditor to whom the obligors in the various bonds were indebted and to whom the banks in which he had deposited money were indebted. The extent and terms of the obligations were evidenced by the bonds and by the certificates of deposit. The local situs was at the creditor’s domicile; and, being choses in action with situs at the domicile of the creditor, they were taxable -as property there. Then, too, as said by the court in the case last cited, at that place they pass from the dead to the living, there this transfer was actually taxed. Because they were not within the State of Missouri for taxation purposes, that State had no power to levy a transfer tax.

Again, in Beidler v. South Carolina Tax Commission, 282 U. S. 1, 51 S. Ct. 154, 75 Law Ed. 69, dividends due from a South Carolina corporation were held not subject to a transfer tax in the State of South 'Carolina where the creditor of the corporation died in Chieag’o, Illinois, testate, and was a resident of that State at the time of his death. The court said that, although the corporate property was situated in the State of South Carolina, that State had no jurisdiction to impose a transfer tax upon the debt owed by the corporation to a nonresident. In this connection, it may be stated that the payment of a. succession tax to the State of South Carolina with respect to the shares of stock owned by the nonresident testator in the domestic corporation in the State of South Carolina was not contested by the executors. This shows that they recognized that the.corporation was a creature of the State of South Carolina, and that the shares of stock were property there under the laws of that State. While there was no adjudication to that effect, still it is worthy of note that the executors recognized this to' be the law.

This brings us to a consideration of the question whether the shares of stock in the present case, under the principles of law above announced, had a legal situs in the State of Tennessee where their owner resided and died. In short, the question presents itself, is the situs of the property owned by a shareholder in a State where the corporation exists or at the domicile of the shareholder. Corporate shares of stock are property within the broad meaning of that term. Certificates of stock in the hands of their holder represent the number of shares which the corporation certifies that he is entitled to and are mere evidence of his title. In the case of bonds and certificates of deposit in a bank, the certificates represent but a property in the debt and that follows the creditor’s person. Not so in the case of certificates of shares of stock in a corporation. The corporation is the creature of State laws, and those who become its members and shareholders are subject to the operation of these laws.

Under our Constitution, private corporations may be formed under general laws, which may be from time to time altered or repealed. Article 12, § 6, of the Constitution of 1874. So, too, our Constitution makes all property subject to taxation except certain property specifically exempted, about which we have no concern in the present case. Article 16, § 5, of the Constitution of 1874. Corporate property is not exempt from taxation under our Constitution, and § 6 of the same article provides that all laws exempting property from taxation other than as provided in the Constitution are void.

In Hawley v. Malden, 232 U. S. 1, 34 S. Ct. 201, it was said that undoubtedly the State in which a corporation is organized may provide in creating- it for the taxation in that State of all its shares, whether owned by residents or nonresidents, and Corry v. Baltimore, 196 U. S. 467, 25 S. Ct. 297, was cited as sustaining the holding. The reason that the State has such power is by virtue of the authority of the statute creating the corporation to determine- the basis of organization and the liability of shareholders. If it be said that the situs of the shares of stock of a corporation should follow the owner, then grave inequalities might arise in the matter. Business corporations might be organized in this State almost wholly upon foreign capital with a few shares held in the name of resident directors, and yet none of these shares of stock held by nonresidents, however valuable, would be subject to a property tax. As we have already seen, if they followed the situs of their owner, they may be taxed as property where the owner resided and not in the State where the corporation was created and upon whose laws they relied for the conduct of their business. This would necessarily result in unfair discrimination against resident stockholders. This court is committed to the rule that shares of stock of a domestic corporation organized under the laws of this State and doing business here may be taxed as property in this State. Harris Lumber Co. v. Grandstaff, 78 Ark. 187, 95 S. W. 772; Dallas County v. Banks, 87 Ark. 484, 113 S. W. 37; Dallas County v. Home Fire Ins. Co., 97 Ark. 254, 133 S. W. 1113; Fort Smith Lumber Co. v. State, 138 Ark. 581, 211 S. W. 662, affirmed in 251 U. S. 532, 40 S. Ct. 304.

If the shares of stock may be taxed as property, whether held by residents or nonresidents, such shares will remain as property here until the death of the owner and then pass to the successor subject to the transfer laws of this State.

We are of the opinion that the situs of shares of stock of a domestic corporation is permanently fixed by the Constitution and laws under which they are created and transact their business, and that there is no reason to apply the rule that they follow the owner’s domicile.

It is urged that a transfer tax might, also, he levied by the State of Tennessee where the testator resided, and thus the shares would be subjected to double taxation. This court is not concerned with that question. The principal issue before us is whether or not shares of stock acquire a situs where the owner resides and should be taxed as property there. If so, then it would seem that a transfer tax should also be levied in the State where the owner resided. On the other hand, if the situs of the property owned by the shareholder in a corporation remains in the State where the corporation was organized and under whose laws it exists and transacts its business, then the situs of the property is where the corporation exists and not that of the domicile of the shareholder. This being so, the transfer tax levied by this State would be valid and enforceable, for the reason that the shares of stock would pass from the dead to the living here.

We think that the shares of stock in a corporation organized under the laws of this State and belonging to a nonresident decedent are property within the jurisdiction of this State and are subject to our laws relating to an ad valorem tax on property and to an inheritance tax upon the death of the owner. A recent case holding that shares of stock in a corporation organized under the laws of the taxing State are subject to a transfer or inheritance tax in the case of a nonresident decedent owner is State ex rel. Attorney General v. First National Bank of Boston, 130 Me. 123, 154 Atl. 103. In that case, the court quoted with approval from Rhode Island Hospital Trust Co. v Doughton, 270 U. S. 69, 46 S. Ct. 256, the following:

“In the matter of intangibles, like choses in action, shares of stock, and bonds, the situs of which is with the owner, a transfer tax, of course, may properly be levied by the State in which he resides. So, too, it is well established that the State in which a corporation is organized may provide, in creating it, for the taxation in that State of all its shares, whether owned by residents or nonresidents.”

Therefore, we hold in the present case that the inheritance or transfer tax was collected under a valid statute, and that appellee was not entitled to a refund of it under the provisions of § 12, of act 106 passed by the Legislature of 1929. See Acts of 1929, vol. 1, page 526. We do not think that such an act violates the provisions of the Fourteenth Amendment to the Constitution of the United States. Therefore, the judgment will be reversed, and the cause will be remanded with directions to order to be dismissed the complaint of appellee and for other proceedings according to law.

Opinion on rehearing delivered March 28, 193'2.

Hart, C. J.

On the 29th day of June, 1931, an opinion was delivered in this case in which it was held that shares of stock in a domestic corporation, organized under the laws of this State and doing business here, whether held by residents or nonresidents, are taxable as property in this State; and such shares remain as property here until the death of the owner when they pass to his successor, subject to the inheritance laws of this State. Consequently, the judgment of the circuit court was reversed, and the cause was remanded with directions to dismiss the complaint of appellee. There was a motion for rehearing filed by appellee within the time required by statute; but, by leave of the court, obtained upon the consent of the parties, the cause was passed for further consideration until a case containing a similar question was decided by the Supreme Court of the United States.

On January 4,1932, the case of First National Bank of Boston v. State of Maine, upon appeal from the Supreme Court of the State of Maine was decided by the Supreme Court of the United States [284 U.'S. 312, 52 S. Ct. 174]. In an opinion delivered by Mr. Justice Sutherlanb, it was held that shares of corporate stock, like certain other specific intangible property, money, bonds. notes, and credits can be subject to inheritance tax by one State only. It was further held that shares of stock in a Maine corporation belonging to the estate of decedent, domiciled in Massachusetts, were not subject to an inheritance tax in Maine, because this would be in violation of the Fourteenth Amendment of the Constitution of the United States. A dissenting opinion was delivered by Mr. Justice Stone, which was concurred in by Mr. Justice Holmes, and Mr. Justice Brandéis.

It becomes our duty to follow the opinion of the Supreme Court of the United States because that court held that the exaction of a similar .tax was not within the power of the States under the Fourteenth Amendment. Consequently, it is earnestly insisted that a rehearing should be granted, and the judgment of the circuit court should be affirmed.

This, by no means follows for the reason that the record in the case before us shows that the payment of the tax by appellee was voluntary within the meaning of the law, and under our rules of practice our former opinion ordinarily would have been placed upon that ground. We decided the question'of the constitutionality of the act merely because of the public interest involved in the matter. Trammell v. Bradley, 37 Ark. 374; and McClure v. Topf & Wright, 112 Ark. 342, 166 S. W. 171.

This court has followed the general rule that one who voluntarily pays a tax, imposed by a law unconstitutional in whole or in part, can not recover the amount SO1 paid. Board of Directors of Crawford County Levee District v. Dunbar, 107 Ark. 285, 155 S. W. 96. For illustrative cases, see notes to 48 A. L. B. commencing at page 1381 and 74 A. L. B., commencing at page 1301. The later cases of Dickinson v. Housley, 130 Ark. 259, 197 S. W. 25; and White River Lumber Company v. Elliott, 146 Ark. 551, 226 S. W. 164, follow the same rule; but, under the facts of these cases, the payment of the taxes was held to be involuntary. In the Dickinson case, the increase of valuation by the Board of Equalization was held to be illegal, and the taxpayer, having paid the amount under protest, was held entitled to recover it from the collector who still had the funds in his hands at the time the suit was brought. In the White River Lumber Company case, payment was held to be involuntary because the collector would have sold the lands of the taxpayer for the nonpayment of the taxes, and this would have constituted a cloud upon his title.

In the present case, the record shows that on March 9, 1928, appellant, by her proper officer, and appellee, by proper representatives, appeared in the probate court of Jefferson County in the matter of the State inheritance tax upon the estate of Nellie Hicks Hunter, deceased. Nellie Hicks Hunter died testate on the 19th day of January, 1927, a resident of Memphis, Shelby County, Tennessee. The court found that there was an inheritance tax due the State of Arkansas in the sum of $7,796.88, and judgment was rendered in favor of appellant against appellees for that amount. The judgment further recites that it being made to appear to the court that said tax has been paid in full, as evidenced by the State Treasurer ’s receipt with certificate attached, the judgment has been satisfied in full, and that the above-described property is free from all claims of the State of Arkansas on account of said inheritance tax.

The proceedings for the collection of the tax were had pursuant to the provisions of §' 10,288- of Crawford & Moses’ Digest, which was the law in force at that time for the collection of inheritance taxes. The section provides for the filing of the complaint by the officers of the State whose duty it was to collect the taxes, and that a summons be issued and served on the defendants. The section also provides that the case shall be tried before the probate judge without a jury upon oral testimony or depositions. The section further provides that appeal may be taken from the judgment of the probate court to the circuit court by either party.

No appeal was taken from the judgment of the probate court. On July 9, 1930, appellee filed the present suit in the probate court against appellant. This suit was decided in favor of appellee by the probate court, and was appealed to the, circuit court. There the case was tried upon the agreed statement of facts, as will appear from our former opinion and from the statement made above. There was again a judgment in favor of appellee, and appellant filed a motion for a new.trial on the ground that the judgment of the circuit court was contrary to law. The ease in apt time was brought to this court, and the motion for a new trial filed by appellant in the circuit court raised the question of whether the payment was a voluntary or involuntary one. For the reasons given above, we are of the opinion that the payment was voluntary, made under a mistake of law, but with a full knowledge of all the facts, and can not be recovered.

This was undoubtedly the law at the time the first judgment was rendered in the probate court on March 9, 1928. The Legislature of 1929' passed act 106 for the purpose of amending the inheritance laws of the State of Arkansas. Acts of 1929, vol. 1, page 526. Section 6 of the act made some amendments to § 10,228 of Crawford & Moses ’ Digest, which is not pertinent to the issue raised by the appeal.

Counsel for appellee bases its right to recover the tax under § 12 of the act 106 of the Acts of 1929 above referred to. That section provides that claims for return of inheritance taxes heretofore or hereafter wrongfully and illegally collected may be made within five years from and after the date of payment of said tax and shall be filed in the probate court having original jurisdiction. It further provides for making the Commissioner of Revenues a party defendant and allows appeal by either party to the circuit court.

We do not think that section was meant by the Legislature to apply to cases like the present one. As we have just seen, the State and the taxpayer were both parties in the probate court and judgment was rendered for the payment of the tax without objection. The judgment recites that it was satisfied in full by the payifient of the tax awarded and by the taking of the State Treasurer’s receipt therefor. Hence, as we have already seen, the tax was not wrongfully and illegally collected.

The tax might have been paid by appellee without suit and under protest, or it mig’ht have been recovered by suit. The record shows that it was recovered in the latter way. Resort to judicial proceedings on the part of the State against appellee was necessary to collect and enforce the tax. The statute provides for this mode of collection. If appellee had declined to pay it, it necessarily followed that, under the statutory mode of proceeding, it would have had its day in court where it could raise the question of its liability for the tax. If it had paid the tax under protest and for the purpose of preventing a cloud upon the title to its property, it would be entitled to> recover under the section just referred to, providing* for the recovery of inheritance taxes wrongfully and illegally collected. The mere fact that the act under which the money was paid was unconstitutional in part and the tax for that reason illegally laid is not sufficient to authorize an action to recover back the amount paid under § 12 of act 106, passed by the Legislature of 1929: That act was passed to enable the taxpayer to recover taxes illegally or wrongfully paid without suit, and where they were paid under protest or some act which would be deemed in law an involuntary payment. It was never intended to apply to cases where the taxpayer had paid the tax when he had had his day in court and failed to avail himself of it and thereby give him the right to litigate over again the matter which had become res judicata by his failing to appeal and by his voluntary payment of the tax to satisfy the judgment. The motion for rehearing will therefore be overruled.


author: Hart, C. J.

text:
    Gray v. State.
    Opinion delivered April 4, 1932.

      Reinberger iffi Reinberger, for appellant.

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

Yeo Gray was convicted before a jury charged with the murder of Raymond Cromer in Drew County, Arkansas, and his punishment was fixed at life imprisonment. From a judgment rendered on the verdict he has appealed.

The evidence was legally sufficient to support the verdict. The court tried the case under the usual instructions governing cases of homicide of this kind. It is earnestly insisted, however, that the court erred in allowing certain testimony to go before the jury. Raymond Cromer made a dying declaration as to the circumstances attending the killing, which was reduced to writing by the sheriff. It is not claimed that the dying declaration which was reduced to writing is incompetent, but it is claimed that the dying declaration made by the deceased to his father which was not reduced to writing is incompetent. We do not agree with counsel in this position. Dying declarations, either oral or written, or partly oral and partly written, are competent evidence to go before the jury as to the facts and circumstances immediately attendant upon the homicide. Underhill’s Criminal Evidence, 3rd ed., § 180. If any part of the declaration is inadmissible, it may be stricken out on motion of the defendant. This court has uniformly held that such declaration may he admitted to prove the circumstances attending or leading up to the homicide. Newberry v. State, 68 Ark. 359, 58 S. W. 351; Rhea v. State, 104 Ark. 176, 147 S. W. 463; Moore v. State, 125 Ark. 177, 188 S. W. 3.

The admissibility of dying declarations is for the court to determine, and the weight and credit to he given them is for the jury. Burns v. State, 155 Ark. 1, 243 S. W. 963. The record shows that the dying declaration written by the sheriff and the oral dying declaration made to the father of the deceased were substantially the same. But, if they were not the same, the differences between them would have been merely matters affecting the credibility to be given to them as evidence.

It is next insisted that the court erred in allowing the sheriff to testify that the deceased gave him a red dice, and the deputy sheriff to testify that a match to it was found in the coupe in which the deceased was riding at the time he was shot and killed. We think the testimony was competent. The sheriff was allowed to testify as to the deceased giving him the red dice because it was a matter immediately leading up to his statement about the circumstances of the killing. The deceased also told the sheriff that he would find a similar dice in the coupe in which the deceased was riding at the time he was shot. The deputy sheriff found such a dice, and the testimony was competent as tending to corroborate the dying declaration of the deceased.

' We find no reversible error in the record, and the judgment will therefore he affirmed.


author: 'Smith, J.

text:
    DuLaney v. Continental Life Insurance Company.
    Opinion delivered April 4, 1932.

      Hal L. Norwood, Attorney General, and Walter L. Pope, Assistant, for appellant.

      Byron K. Elliott, Ralph H. Kastner and Carmichael ■d Hendricks, for appellee.
   'Smith, J.

The General Assembly, at its regular 1931 session, passed an act, No. 235, entitled, “An act to amend § 9968 of Crawford & Moses’ Digest for the purpose of raising additional revenue in order to meet requirements and accept benefits from the Federal Government and Other Agencies, for Public Health Purposes.” Acts 1931, page 721.

Section 9968, Crawford & Moses’ Digest, imposed a tax of two per cent, on the gross premium receipts of certain named insurance companies, in lieu of all other taxes based on such receipts. The amendment of this section effected by act No. 235 was to increase this tax from two per cent, to two and one-half per cent. The remaining portions of act No. 235 appropriate this increase to the uses therein specified.

The Continental Life Insurance Company, an insurance company affected by the provisions of this act, brought this suit in the Pulaski Chancery Court to enjoin the Insurance Commissioner, whose duty it was to collect the tax, from attempting to enforce its collection against its gross premium receipts for any part of the year 1931 at the increased rate. A tender of two per cent, under the original statute was made. A demurrer to this complaint was filed, which was overruled, and the Insurance Commissioner was ordered to permit the insurance company to pay at the rate provided by § 9968, Crawford & Moses’ Digest.

Act No. 235 was approved by the Governor on March 27, 1931, and, as its emergency clause was insufficient to put it in effect upon its approval by the Governor, it is conceded that it did not take effect as a law until ninety days after the adjournment of the legislative session, which was in June, 1931.

The act requires the insurance companies named to file a sworn statement with the Insurance Commissioner of their gross premium receipts in this State for the year ending the 31st of December next preceding the report, and to pay into the State Treasury, on or before the 1st day of March of each year, the tax imposed, the same being in lieu of all other taxes based on such gross premium receipts.

The insistence is that this act is not retroactive in its operation, and that, as practically one-half the fiscal year of 1931 had expired before the act became a law, it has no application to the premium receipts of that year. The chancellor was of opinion that this position was well taken, and granted the relief prayed, and directed that the tax be paid on the two per cent, basis in accordance with the provisions of § 9968, Crawford & Moses’ Digest, and this appeal is from that degree.

The power of the General Assembly to pass a tax act retroactive in character is not questioned. The existence of this power was expressly upheld in the case of Stanley v. Gates, 179 Ark. 886, 19 S. W. (2d) 1000, where the authorities upon the subject were reviewed. The court there quoted from Stockdale v. Atlantic Insurance Co., 20 Wall. (U. S.) 331, as follows: “The right of Congress to have imposed this tax by a new statute, although the measure of it was governed by the income of the past year, cannot be doubted; much less can it be doubted.that it could impose such a tax on the income of the current year, though part of that year had elapsed when the statute was passed. * * * ”

It is pointed out, however, that the act construed in Stanley v. Gates, supra, expressly provided that it should be retroactive, whereas act No. 235 contains no such express declaration, and we are cited to numerous cases in which this court, in conformity with the general rule prevailing everywhere, has held that a statute should have a prospective operation only, unless its terms show clearly a legislative intention that it should operate retrospectively.

The question for decision is therefore whether the General Assembly has clearly shown a legislative intention that act No. 235 shall operate retrospectively, and has sufficiently declared that intention to overcome the presumption that there was no snch intention.

Upon this question we are cited to the case of Jefferson Standard Life Insurance Co. v. King, 163 S. E. 653, decided by the 'Supreme Court of South Carolina March 22, 1932. The Supreme Court of South Carolina there construed an act of the General Assembly of that State to require an additional license fee to be paid by the insurance companies doing business in that State. The relevant portion of that act is contained in § 1 thereof, and, as quoted in the opinion, is as follows: “Section 1. * * * The Insurance Commissioner of South Carolina is hereby authorized and directed to require all insurance companies doing business in this State * * * and not incorporated under the laws of South Carolina, to pay, in addition to the annual license fee now provided by law, a graduated license fee in an amount equal to one (1%) per cent, on the total premiums collected in this State. & * * 3 J

Other portions of the South Carolina act direct the Insurance Commissioner to collect the fee and require that the act shall be construed as intended to provide for the payment of a fee in addition to other fees required to be paid under existing laws.

In construing* this act it was said by the. court that: “We have not’been able to find, from a careful reading and study of the act in question, any express words requiring that, in the collection of the license fees provided for by it, the statute be given effect and operation prior to the date it was approved by the Governor and became a law — June 16, 1931.” In other words, the act was construed as being prospective only because the contrary intention had not been declared by the Legislature. The principle announced in the South Carolina case is not applicable to the act here under review, because of the manifest difference between the South Carolina act and act No. 235.

It is elementary that in the construction of a legislative act we must read it in its entirety, and, when act No. 235 is so read, we are led to the conclusion that, under the ■ test herein stated, it was the legislative intent that the act should apply to the gross premium receipts for the entire year 1931.

We know its legislative history. The first act on the subject was passed in 1913 (Acts 1913, act No. 159, page 675), and levied a tax of one and one-half per cent, on gross premium receipts. It was approved on March 12, 1913, and contained provisions similar to act No. 235 relative to the payment of the tax. Pursuant to the act of 1913 the tax was collected on premiums paid for the entire year in which the act was passed up to December 31st. The reports required by that act were filed on January 1st, or within sixty days thereafter.

The act of 1913 was amended by act 264 of the Acts of 1917 (vol. 2, Acts 1917, page 1362), which increased the tax to two per cent., and the same provisions appeared as to reports of receipts and the payment of the tax thereon, pursuant to which taxes were paid at the increased rate for the entire year in which the act was passed.

This history is entitled to some weight in determining the legislative intent in amending § 9968, Crawford & Moses’ Digest, by the act of 1931, which section was amended only by increasing the tax from two to two and one-half per cent. But, disregarding this legislative history, the legislative intent otherwise sufficiently appears to lead to the conclusion which we have reached that act No. 235 applies to the receipts for the entire year 1931.

The State Board of Health was constituted as the agency to put the provisions of the act into effect, and it was contemplated that this should be done as soon as the act became a law. An appropriation was made for this purpose for the fiscal year ending June 30, 1932, and a like appropriation was made for the fiscal year ending June 30, 1933. The money thus appropriated was to be derived from the additional one-half per cent, provided by act No. 235. The fiscal year ending June 30, 1932, began, of course, June 30,1931, on which last-named date the act was in full force and effect. While the fiscal year of the board of health for which appropriations were made begins and ends on June 30th, the fiscal year for which insurance companies must make reports begins and ends on December 31st. Section 5979, Crawford & Moses ’ Digest. Both § 9968, Crawford & Moses’ Digest, and the amendatory act, No. 235, require reports of gross premiums “for the year ending the 31st day of December next preceding, ’ ’ and the tax thereon is payable on or before the 1st day of March following.

We think the provisions of act No. 235 in regard to the appropriation there made for the fiscal year ending June 30, 1932, during afi of which year the act was in full force and effect, clearly manifest the intention that the act was retroactive to the extent of requiring the insurance companies named in the act to report gross premium receipts for the entire year 1931 and to pay the tax thereon at the increased rate.

The decree of the court below will therefore be reversed, and the cause will be remanded with directions to sustain the demurrer.


author: Humphreys, J.

text:
    Shook v. Morrison.
    Opinion delivered April 4, 1932.

      J. V. Walker and Karl Greenhaw, for appellant.

      Earl Blansett and John Mayes, for appellee.
   Humphreys, J.

This is an appeal from the circuit court of Washington County dismissing the petition of appellants to the county board of education to change the. boundary lines of Winslow Special School District No. 9 so as to bring within its boundary all of the territory in Common School Districts Nos. 37, 129 and 145 under the provisions of act No. 156 of 1927 (page 549).

The record reflects that notices of the intention to file the petition for consolidation of said school districts with the county board of education were not posted thirty days before but thirty days after filing the petition. The statute governing the notices to be posted is found in § 8821 of Crawford & Moses’ Digest, and is as follows:

“When a change is proposed in any school district, notice shall be given by parties proposing the change by putting up hand-bills in four or more conspicuous places in each district to be affected, one of said notices to be placed on the public school building in each affected district. All of said notices to be posted thirty days before the convening of the court to which they propose to present their petition. Said notices shall give a geographical description of the proposed change.”

This court has construed the statute with reference to the time of posting the notices in the recent case of Texarkana Special School District v. Consolidated Special School District No. 2, ante p. 213, to mean that same must be posted before, and not after, the filing of the petition in order to give the county board of education jurisdiction to hear and determine the application. It is argued in appellants ’ reply brief very earnestly that the court should recede from the interpretation placed upon the statute in the case'referred to, but the court is of opinion that it correctly construed the statute and adheres to the construction placed upon it in that case.

This case is therefore ruled by the case cited.

No error appearing, the judgment is affirmed.


author: Kirby, J.,

text:
    Smackover Journal v. News Times Publishing Company.
    Opinion delivered April 4, 1932.

      J. S. Utley and Wm. T. Hammock, for appellant.

      Owens & Ehrman, for appellee.
   Kirby, J.,

(after stating the facts). The statute upon which the action is based, Initiative Act No. 2 of 1914,' at pages 1511-15 of Acts of 1915, relating to the publication of a synopsis of the acts of the Legislature, provides for the fees to be paid therefor,.the number of newspapers in which the synopsis can be published, and § 12 thereof provides:

“In all counties in which there are cities of the first class, the publications herein provided for shall be made in one established daily newspaper of general circulation, provided such a newspaper exists, and, in the absence of such a newspaper, publication shall be made in a weekly newspaper published in said county.”

The language of the statute is plain, requiring that in counties where there are cities of the first class the publication provided for “shall be made in one established daily newspaper of general circulation, provided such a newspaper exists, etc.”. This language is plain and mandatory, leaving no discretion to the Secretary of State in counties where there are cities of the first class having a daily newspaper of general circulation to cause such publication to be made in other than a daily newspaper. Washington County v. Davis, 162 Ark. 335, 258 S. W. 324.

The people had the right to prescribe in said act for the publication of the synopsis and to determine what medium should be used for bringing it to the people’s attention; and, having done so, the officer authorized to cause the publication to be made could exercise no discretion about the selection of a newspaper other thán as prescribed by the statute for the publication.

Neither is the act violative of the Constitutions of the State nor of the United States; and the publication, having been made contrary to the statute authorizing it, created no valid obligation against the State for its payment, and no error was committed in granting the injunction prayed for. The decree is accordingly affirmed.


author: Mehaeey, J.

text:
    American Railway Express Company v. H. Rouw Company.
    Opinion delivered April 4, 1932.

      A. M. Hartung and Warner <& Warner, for appellant.

      D. H. Howell, for appellee.
   Mehaeey, J.

The appellee brought this action in the Crawford Circuit Court against the appellant to recover $1,109.35, damages to a shipment of strawberries from Horatio, Arkansas, to Hartford, Connecticut.

Appellee alleged the delivery of the strawberries to the appellant, and alleged that appellant was negligent in not shipping the berries within a reasonable time, and in not furnishing a properly constructed and equipped refrigerator car, and was negligent in not keeping said car refrigerated, and in allowing the ice to melt in the bunkers. It alleged that the berries were in good condition when shipped, and they arrived in Hartford in a damaged condition, said damages being caused by, the negligence of appellant.

It alleged the filing of its claim in writing and the failure and refusal to pay.

Thereafter plaintiff filed the following amendment as a substitute for paragraph three of the original complaint:

“Plaintiff alleges that the defendant allowed and permitted said strawberries, while in its possession and during the course of transportation, to become soft, wet, rotten and otherwise deteriorated, thereby greatly depreciating the value of same, all to plaintiff’s damage in the sum of eleven hundred nine and 35/100 dollars ($1,109.35). Wherefore plaintiff prays judgment and relief against the defendant as alleged and set forth in the original complaint. ’ ’

The appellant filed a demurrer and answer, and the court overruled the demurrer. The answer denied all the material allegations of plaintiff’s complaint.

The appellee introduced the express receipt, paragraph four of which is as follows:

“Unless caused in whole or in part by its own negligence or that of its agents, the company shall not be liable for loss, damage, or delay caused by:

“A. The act or default of the shipper or owner.

“B. The nature of the property, or defect or inherent vice therein.

“C. Improper or insufficient packing, securing or addressing.

“D. The act of God.”

Appellee then introduced evidence tending to show that the berries were delivered to the carrier at Horatio in good condition, and arrived at Hartford, Connecticut, in a damaged condition; and also evidence that, if they were delivered in good condition in a properly cooled refrigerator car, and arrived at their destination in a damaged condition, the damage was due to the fact that the car did not have proper refrigeration all along the route, and the ice must have melted away at some point.

This was all the evidence introduced on the part of the appellee, and the appellant moved the court to exclude from the jury’s consideration any issue of negligent delay in transporting the car, there being no evidence tending to prove such negligence, and this motion was sustained by the court.

The appellant then moved the court to exclude from the jury’s consideration any issue respecting negligent failure to ice or reice the car in transit, and the court sustained this motion. The appellant then moved the court to exclude from the jury’s consideration any issue respecting defendant’s negligence in furnishing said car, or in furnishing an improper or insufficient equipment, and this motion was-sustained by the court.

All allegations of specific acts of negligence alleged in the complaint were withdrawn from the consideration of the jury, and the only issue remaining to be tried was the common-law liability stated in appellee’s amendment to his complaint.

The appellee, having shown by evidence that the shipment was delivered at Horatio in good condition, and received at Hartford in a damaged condition, and also having shown that this could have been caused only by failure to keep the cars properly iced, the burden was then upon appellant.

It thereupon introduced testimony which tended to show, that there was no delay in the transportation of the berries, and it also introduced evidence tending to show that there was no failure to ice or reice the car. There was no evidence in the case tending to show that the berries were diseased.

L. P. Franks, however, a witness for the appellant, testified that he inspected the car at Horatio and that it was in good condition and properly iced. He testified that the day before the car was loaded it rained. He also testified that part of the berries were water-soaked, some overripe, and some small and knotty.

Another one of the appellant’s witnesses, however, C. F. Lamb, agent for the company at Hartford, testified that he inspected the car on its arrival, notified the consignee, and that it was apparent that the berries met consignee’s requirements. There was no sign of decay in the berries, which were dry and small, and had cover bruises. This witness inspected the top tiers.

Huntoon, another witness, testified for appellant that he inspected the ear at Kansas City on its arrival, and that the bunkers were down about 17 inches. It was necessary to put in, and he did put in, 2,700 pounds of ice.

Another witness for appellant, John Eeddick, also testified that the ice was down 17 inches.

Some of the witnesses for appellant testified that they reiced the car to capacity, but did not know how low the ice was when the car arrived.

It is appellant’s first contention that appellee wholly failed to establish negligence, and was therefore not entitled to recover. When a shipper alleges specific acts of negligence, the burden is on the shipper to prove the negligence alleged, and thaj; this negligence caused the damage. This suit, however, is based on the carrier’s common-law liability, and, when the shipper made á •prima facie case, the burden shifted to appellant.

The law, however, is well settled that a common carrier, in the absence of an express stipulation in the contract to the contrary, is responsible where goods are received for shipment against all loss or damage except such as is caused by the act of God, or the public enemy, or from inherent defects or weakness in the commodity shipped; and, when the carrier holds itself out as proposing to provide means of preserving perishable goods, it must exercise ordinary care in the adoption of such means of transportation, and furnishing such equipment. And if the goods were in good condition when delivered and accepted, and found on arrival at destination to be in damaged condition, then the law presumes the damaged condition was caused by the negligence of the carrier. Mo. Pac. Ry. Co. v. Amer. Fruit-Growers Inc., 163 Ark. 318, 260 S. W. 39; American Ry. Express Co. v. H. Rouw Co., 173 Ark. 810, 294 S. W. 357; St. L. San Fran. Ry. Co. v. Cole, 174 Ark. 10, 294 S. W. 401; Amer. Ry. Ex. Co. v. H. Rouw Co., 174 Ark. 6, 294 S. W. 416; M. P. Ry. Co. v. Fine, 183 Ark. 13, 34 S. W. (2d) 755; Cinn.-New Orleans & Texas Pac. Ry. Co. v. Rankin, 241 U. S. 319, 36 S. Ct. 555, 60 Law. Ed. 1022; Amer. Ry. Ex. Co. v. Rhody, 84 Ind. App. 283, 143 N. E. 640; Buck v. Amer. Ry. Ex. Co., 195 Iowa 1024, 192 N. W. 277.

The appellant, however, in the contract of shipment expressly provided that, unless the injury was caused in whole or in part by its negligence, it should not be liable for loss, damage, or delay, caused by: (1). Act or default of the shipper or owner. (2). The nature of the property, or defect or inherent idee therein. (3). Improper or insufficient packing, securing, or addressing. (4). The act of God. There is no evidence in this case that the damage resulted from either of the above causes. There is no evidence of any act or default of the shipper that caused the damage. There is no evidence that it was caused by the nature of the property, or defect or inherent vice. There is no evidence that the damag'e was caused by the act of God.

There is substantial evidence to sustain the verdict in this case. The credibility of the witnesses and the weight to be given to their testimony were questions for the jury, and not for this court.

Appellant cites a number of authorities to support its claim that when a plaintiff bases his right to recover upon unreasonable delay and failure to furnish proper refrigeration, having relied upon these specific acts of negligence, the burden is upon the shipper. All the questions of negligence, as we have already said, were eliminated by the court at the request of the appellant.

The court excluded from the consideration of the jury any issue of negligent delay, and negligent failure to ice or reice, and negligence in furnishing car or improper equipment, and, after the elimination of these issues, plaintiff’s right to recover was based wholly on the common-law liability of the carrier, and, when the appellee proved a delivery of the shipment in good condition to appellant, and proved a delivery at destination in a damaged condition, the presumption arose that the carrier was guilty of negligence, causing the damage.

We are of the opinion that the evidence was sufficient to justify the jury in finding that the carrier was guilty of negligence which caused the injury.

Appellant urges a reversal because the court gave appellee’s instruction No. 1, which is as follows: “You are instructed that a common carrier, in the absence of an expressed stipulation in the contract to the contrary, is responsible for goods received for shipment against all loss or damage, except such as is caused by the act of God or the public enemy or from inherent defects or weakness in the commodity shipped; that, when a shipment of perishable goods is received for transportation, it must exercise ordinary care in the adoption of such means of transportation and in furnishing such equipment as will reasonably accomplish the purpose. The above instruction was a correct statement of the law.

Appellant relies on M. P. Rd. Co. v. Fine, supra. That case, however, was based on specific allegations of negligence, and the instruction complained of in this case told the jury that the carrier must exercise ordinary care in the adoption of such means of transportation and furpisli such equipment as would reasonably accomplish the purpose.

Appellee’s instruction No. 2, was a correct statement of the law. It told the jury in effect that if the evidence showed that the strawberries were delivered to the carrier in Horatio in good, sound, merchantable condition, and, if the same arrived in Hartford in a damaged condition, and such damage occurred during the time they were in possession of the carrier, then the plaintiff had made out a prima facie case, and the burden was upon the defendant to show that it used ordinary care in the transportation of said berries.

As we have already said, it is a well established rule in this court, and in practically all other courts, that the delivery to the carrier of merchandise in good condition, and the delivery at its destination in bad condition, makes out a prima facie case.

Appellant also urges a reversal because the court refused to give its instruction No. 5. This instruction was erroneous because it placed the burden upon the plaintiff to prove the negligence of the carrier.

We find no error, and the judgment of the circuit court is affirmed.


author: McHaney, J.

text:
    American Railway Express Company v. Cole.
    Opinion delivered April 4, 1932.
    . A. M. Hartung and Warner ■£ Warner, for appellant.

      D. H. Ilowell, for appellee.
   McHaney, J.

This is the second appeal of this case. See 183 Ark. 557. Appellee seeks to recover of appellant damages to a car of strawberries shipped from Alma, Arkansas, to Youngstown, Ohio, on May 12, 1929. Three specific grounds of negligence were alleged and relied on for a recovery; first, that there was delay in transportation; second, that an improperly constructed and equipped refrigerator car was furnished; and, third, that the car was not properly iced and re-iced before loading and during transit. There was a verdict and judgment against appellant for $474.91.

On the former appeal we held that there was substantial evidence, sufficient to take the ease to the .jury, on the question of the icing and reicing of the car. The evidence on this appeal on that question is substantially the same as on the former, and the decision on the former appeal on this question becomes the law of the case on this appeal. Coca-Cola Bottling Co. v. Shipp, 177 Ark. 757, 9 S. W. (2d) 8.

The court submitted to the jury the question of the negligence of appellant as to delay in transportation and the furnishing of an improperly constructed and equipped refrigerator car, over appellant’s objections and exceptions, and refused requested instructions eliminating these questions from the jury’s consideration. In these respects the court erred, as there was no evidence to support these declarations. As to the delay in transportation, the undisputed evidence is that the car was loaded and delivered to the carrier at 8:45 a. m., May 12, 1929; that it departed from Alma in Missouri Pacific .train 1£)5 at 11:40 a. m. same date, which was the first available train after loading was completed; that it was promptly transported to St. Louis via Little Rock, where it was reiced, arriving there at 7:17 a. m. May 13, where it was again reiced at 9:05 a. m. The movement thus far was by passenger train. While en route to St. Louis, appellee diverted the car to a firm in Cleveland, Ohio, which diversion order was received' by appellant at 6 :30 a. m. May 13. After reicing, t-lie car moved in the first available train at 2:37 p. m. same date, in Big Four Special for Cleveland, where it arrived at 4:45 a. m. May 14, was placed at 38th Street depot at 5:35 a. m., consignees notified by telephone at 6 a. m. and they accepted delivery at that time, signing the waybill. It was also reiced at that time. On account of the congested condition of the market, consignees did not unload the car, but on May 15 at 2:15 p. m., after advising with appellee by wire, they reshipped the car to themselves at Youngstown. It moved at 9 :30 p. m. same date in the first available train and arrived at Youngstown at 11:20 p. m. Consignees were notified in advance of arrival and accepted delivery of the car next morning at 6 a. m. So it will be seen the car moved promptly and on schedule time from the point of origin to destination, and whatever delay there was in Cleveland was caused by appellee and his agents and not by appellant. There was no proof, therefore, of any negligence of appellant in this regard.

As to the car itself, the undisputed evidence is that it was built by the General American Tank Car Company in 1928, was practically a new car, was the latest, most improved and approved passenger refrigerator car known, and was constructed of the best materials and with the best and most experienced labor. It was inspected in the Missouri Pacific shops at Little Rock at the beginning of the berry season in 1929 and found to be in good condition in every respect. It was again inspected by the builder in the fall of 1929 and found to be in good condition with no defects of any kind in.its refrigerating apparatus. Its bunker capacity was 12,500 lbs. of ice. There was no proof to show that this car was' other than as stated above, so there was no proof that it was defective in any way.

The court therefore erred in submitting the question of appellant’s negligence to the jury in these respects because no' negligence was shown. The burden was on appellee to do this.

The judgment must be reversed, and the cause remanded for a new trial.


author: MoHaney, J.

text:
    Alwes v. Richheimer.
    Opinion delivered April 4, 1932.

      Chas. D. James, for appellant.

      G. A. Fuller and A. J. Bussell, Jr., for appellee.
   MoHaney, J.

On March 27, 1923, Herman Alwes and wife and Tillie N. 'Seidel, being the owners of a certain piece of property in Eureka Springs, executed and delivered to Frederick U. and Pauline C. Smith their mortgage thereon to secure their three promissory notes of $1,000 each. The first of said notes was paid, and the second and third notes were assigned by the Smiths to appellee Richheimer. The property mortgaged was known as the Commodore Theatre. Thereafter on the 24th day of May, 1923, Tillie N. Seidel, who has since married one Reinach, conveyed her interest in said property to her cotenant Alwes, and on the same day Alwes and wife executed and delivered their note to Mrs. Seidel-Reinach in the sum of $4,000, covering the unpaid purchase money, which was secured by a second mortgage on the same property. Thereafter Alwes and wife conveyed an undivided one-half interest in the same property to William C. Perry, subject to the mortgages of Richheimer and Seidel-Reinach. Thereafter on May 22, 1924, Alwes and Perry executed and delivered to H. O. Pendergrass a third mortgage on the same real property, subject to the prior mortgages, which purported to cover all the personal property located in the theatre building. Default was made in the payment of Richheimer’s indebtedness, and suit was brought to foreclose his mortgage, in which all the other parties in interest were made defendants. Mrs. Seidel-Reinach answered admitting the priority of the Richheimer mortgage and filed a cross-complaint against the other deféndants praying a foreclosure of her second mortgage. In the mortgage by Alwes and wife to Seidel-Reinach, after describing the real estate, is found this clause: “It being my intention to convey the grounds upon which the Commodore Theatre now stands together with the building and appurtenances, all in the city of Eureka Springs, county and State aforesaid.” And the habendum clause: “To have and to hold the same unto the said Tillie N. Seidel, her heirs and assigns, together with all and singular the appurtenances and improvements thereunto belonging.” No personal property was mentioned in either the first or second mortgages.

At the time of the execution of the second mortgage there was located in the Commodore Theatre and attached to it the theatre seats, a number of electric fans, two picture machines and an electrical pipe organ weighing about a ton, drop curtains and other property used and useful in the operation of the theatre, all of which passed to Alwes under the Seidel-Reinach deed, and she prayed a foreclosure of the same property under her riiortgage as fixtures, and that same be declared prior and paramount to the Pendergrass mortgage. Appellants Alwes and Perry answered denying the right of Mrs. 'Seidel-Reinach to a foreclosure on the fixtures. Pendergrass failed to answer either the complaint or the cross-complaint. On a hearing there was no dispute as to the amount due under the first and second mortgages or their priority as to the real estate. The court found for- appellees, decreed a foreclosure of the first and second mortgages for the sums agreed to he due, ordered a sale of the property, including the fixtures, and that the proceeds of the sale be applied to the payment of the first and second mortgages and the overplus, if any, be applied on the third mortgage of Pendergrass.

The only question presented by this appeal is whether the articles of furniture and fixtures in the Commodore Theatre are fixtures, and therefore a part of the realty, covered by the first and second mortgages, or whether they remain personal property and not covered by said mortgages. The word “appurtenances” is defined in Words and Phrases as follows: “An appurtenance is a thing belonging to another thing as principal and which passes as incident to the principal thing.” The thing conveyed in the Reinach mortgage was the real estate described therein together with “the appurtenances and improvements thereunto belonging.” As stated above, the property in the Commodore Theatre was attached to it, was appurtenant thereto and was a part of the improvements in the building for the purpose for which it was constructed. The building was built as a theatre or moving picture show, and was suitable for such purpose and for no other without extensive alterations. This court has many times had occasion to determine when personal property becomes a fixture in a building. In Stone v. Suckle, 145 Ark. 387, 224 S. W. 735, the court held that, where deed to a hotel, did not reserve the ceiling- fans therein which were necessary and reasonably adapted to the use of the property for hotel purposes, the jury’s verdict finding- them to be fixtures should be sustained. It was there held that, as between heir and executor, “the rule obtains the most rigor in favor of the inheritance, and against the right to consider as a personal chattel anything which has been affixed to the freehold. ’ ’ And it further said: ‘ The strict rule as to fixtures that applies between heir and executor applies equally between vendor and vendee, and mortgagor and mortgagee.” Citing 2 Kent’s Commentaries (14 ed. p. 346). In that case the court quoted with approval from Canning v. Owen, 22 R. I. 642, 48 Atl. 1033, 84 Am. St. Rep. 858, which held that electric light fixtures which take the place of gas fixtures in a building, though removable without physical injury to the building, as between mortgagor and mortgagee, were fixtures and a part of the realty, and stated the following: “It is not necessary to impose upon a chattel the character of a fixture that it be so affixed to the realty that it cannot be removed without physical injury thereto, if it has been attached with a view of enhancing the value of the realty and for the purpose of being permanently used in connection therewith. The intention of the owner need not be expressed in words, but must ordinarily be inferred from the nature of the articles affixed, the relation and situation of the parties interested, the policy of the law with respect thereto, the mode of annexation and the purpose for which it was made. The question whether chattels are to be regarded as fixtures depends less upon the measure of their annexation than upon their own nature, and their adaptation to the purpose for which they are used.”

A number of cases since that time have followed Stone v. Suckle, supra. In Hall v. Burns, 146 Ark. 157, 225 S. W. 227, a kitchen cabinet was held to be a fixture. In Arkansas Cold Storage & Ice Co. v. Fulbright, 171 Ark. 552, 285 S. W. 12; Anderson v. Southern Realty Co., 176 Ark. 752, 4 S. W. (2d) 27, and McGregor v. Cain, 180 Ark. 746, 22 S. W. (2d) 393, the strict rule which obtains between heir and executor, vendor and vendee and mortgagpr and mortgagee was relaxed because those relationships did not obtain and other circumstances and conditions relaxed the rule. Stone v. Suckle, supra, is cited in 62 A. L. R. 251, where it is stated that the tendency of modern decisions, both English and American, “is against the common-law doctrine that the mode of annexation is the criterion, whether slight and temporary, or immovable and permanent, and in favor of declaring all things to he fixtures which are attached to the realty with a view to the purposes for which it is held or employed. ’ ’

Applying these principles we think the articles enumerated above are fixtures because not only are they attached to the building, but are used and are useful in connection with the operation of the building as a theatre or moving picture show, the only purpose to which it is adapted.

We therefore agree with the trial court that said articles, after being placed in the theatre building and attached thereto, become fixtures, lost their identity as chattels and passed under the first and second mortgages without special enumeration and were subject to foreclosure and sale as a part of the realty.

Affirmed.

Kjrby, J., dissents.


text:
    Banks v. State.
    Opinion delivered April 4, 1932.

      Joe T. Robmson, Bonham & Fulk, T. B. Wytme, and darry Meek, for appellant.

      H. L. Norwood, Attorney General, and Pat Mehaffy, Assistant, for appellee.

      Ja/mes G. Coston and J. T. Coston, amici curiae.

   Hart, C. J.

A. B. Banks was convicted before a .jury for receiving or allowing to be received in the American Exchange Trust Company a banking corporation of Little Bock, Arkansas, of which he was president, deposits after he knew that the bank was insolvent. The jury fixed his punishment at imprisonment for one year in the State Penitentiary, and from the judgment upon the verdict the defendant has appealed.

The first assignment of error is that the court erred in refusing to grant the defendant a continuance. The granting or refusing of continuances is within the sound legal discretion of the court, and this court will not interfere where there has been no abuse of that discretion. Golden v. State, 19 Ark. 590; Edmonston v. State, 34 Ark. 720; Jackson v. State, 54 Ark. 243, 15 S. W. 607; Goddard v. State, 78 Ark. 226, 95 S. W. 476; Morris v. State, 102 Ark. 573, 145 S. W. 213; Bruder v. State, 110 Ark. 402, 161 S. W. 1067; Sease v. State, 155 Ark. 130, 244 S. W. 450; Adams v. State, 176 Ark. 916, 5 S. W. (2d) 946.

While numerous other cases approving the rule have been decided by the court, no useful purpose could be served by citing or reviewing them, because each case depends upon its own particular facts. The indictment in the case at bar was returned on April 27, 1931. On May 27,1931, the case was set for trial on June 26,1931. The trial lasted about one week. Numerous witnesses were introduced by the State and by the defendant. Eminent counsel represented the defendant. They were allowed to introduce testimony relative to every phase of the case. There was ample time to have taken the deposition of any witness which might have been desired. There was no reversible error in the action of the court in overruling the defendant’s motion for a continuance.

The next assignment of error is that the court erred in overruling the defendant’s motion to quash the indictment. The record shows that the grand jury duly returned into court the indictment upon which the defendant was tried. Thereafter, on another day of the same term, after obtaining permission of the court, the same grand jury met and heard the testimony of the defendant, A. B. Banks. Thereupon, the grand jury made a written report to the court, stating that it had erred in returning the indictment, and recommended to the prosecuting attorney that a nolle prosequi be entered of record. The prosecuting attorney objected, and the court refused to quash the indictment.

There was no error in this ruling of the court. Under our Constitution and laws, a grand jury is an accusing body, and, while an appendage or part of the court, it has no powers as a judicial tribunal. When it returns into court a true bill in a case, its power in the premises is ended until and unless, under orders of the court, the charge is again submitted to it for consideration. The indictment and return thereon of a true bill is a public record of which, the court has exclusive jurisdiction. It cannot he withdraw from the files of the court and changed by the grand jury. Then, too, when the grand jury returns a bill into court and files it, the court acquires jurisdiction of the case, and the function and power of the grand jury is ended. Fields v. State, 121 Ala. 16, 25 So. 726; Gibson v. State, 162 Ga. 504, 134 S. E. 326; Joyce on Indictments (2d ed.), § 128, p. 153; 31 C. J. 587.

The next contention relied upon for reversal of the judgment is that under § 717 of Crawford & Moses’ Digest, which is a part of our statute regulating banks and banking, the bank in question was not insolvent because there had been no examination made by the bank examiner. Reliance is placed upon that part of the section which provides that a bank shall be deemed insolvent within the meaning of the act upon the existence of the following facts: * * * “3. If, upon examination, it is ascertained that the liabilities of a bank exceed its assets.”

It is claimed that under this section it is only the Bank Commissioner who can declare a bank insolvent after examination made, and that, so long as the Bank Commissioner permitted the bank to remain open, it was not insolvent. We do not think so. 'Our banking act (§ 712, Crawford & Moses ’ Digest) allows the officers of a bank to close it for insolvency, and § 697 of Crawford & Moses’ Digest makes it a felony for any officer to receive or allow to be received deposits in the bank when he knows it to be insolvent. We cannot conclude, in the light of these sections, that it was the intent of the hanking act to vest in the Bank Commissioner alone the power to determine when and when not a bank is insolvent. Raynor v. Scandanavian-American Bank, 122 Wash. 150, 210 Pac. 499, 25 A. L. R. 716.

The next assignment of error is that the court erred in allowing the testimony of W. A. Hicks and Sam Wilson to go before the jury. According to the testimony of W. A. Hicks, he was president of the People’s Trust Company of Little Rock, and had been since December 1, 1928. Prior to that time lie was active vice-president of the American Southern Trust Company, which was taken over by the American Exchange Trust Company. He was familiar with the ability of the customers of the latter bank to pay their obligations. After the American Exchange Trust Company closed its doors, on account of insolvency on November 17, 1930, witness was one of a committee of three bankers selected to investigate the assets of the insolvent bank. Witness was allowed to make a detailed statement of the large debtors of the bank and to state the value of the securities deposited by them in the bank for the purpose of securing the loans made to them. Among the largest debtors were Caldwell & Company, insurance investment brokers of the State of Tennessee; A. B. Banks & Company, investment brokers, owned and controlled principally by the defendant; Yan M. Howell & Co., another investment concern owned and controlled principally by the defendant. Other large debtors of the bank were listed by the witness, Hicks, and his opinion given and taken as to the value of their securities. Without going into detail in the premises, it is sufficient to say that his testimony tended to show that the bank was insolvent on November 15, 1930, and when it failed to open on November 17, 1930.

Sam Wilson was a planter and merchant and a director of a bank in the southern part of the State. He was appointed as liquidating agent for the American Exchange Trust Company when it was taken charge of by the State Bank Commissioner. He made a list of the large debtors of the bank, and his testimony tended to corroborate that of W. A. Hicks as to the value of their securities and in other matters.

We are of the opinion that the testimony was admissible under the principles of law heretofore decided by this court in similar cases. Cunningham v. State, 115 Ark. 392, 171 S. W. 885; Skarda v. State, 118 Ark. 176, 175 S. W. 1190, Ann. Cas. 1916 E, 586; Wilkin v. State, 121 Ark. 219, 265 S. W. 76; Dover v. State, 165 Ark. 496, 265 S. W. 76; Crawford v. State, 184 Ark. 1027, 44 S. W. (2d) 360. The reason is that the business of banking, while a lawful one, is subject to regulation under the police power of the State. Money is the life blood of the nation, and a country’s financial system has been generally regarded as the Scylla and Charybdis upon which it is wrecked or voyages to safety. The banking business, from the beginning of our country’s existence, has grown to be a part and parcel of a great financial system, and the bulk of the business is transacted through the medium of bank checks and drafts. It is the great business of the country which needs protection, but which needs to be regulated to promote the general public welfare and happiness of the people. A bank does business upon the confidence of the people in its solvency. When the public ceases to have confidence, suspension of business is near. So it can be said that, when a bank is open and doing business with the public, that of itself is in effect a public declaration of solvency. Therefore, if its officers allow deposits to be received when they know the bank to be insolvent, such act is punishable as a criminal offense. The mere fact that, after investigation had been begun, the officers of the bank in question continued to do business, tended to show knowledge of its insolvency on the part of the officers. For an insolvent bank to continue in business is to hold itself out as having responsibility and surplus capital when none exists. To suppress this real or supposed mischief, our Legislature has passed the act under which the defendant was convicted in the present case. It is a matter of common knowledge that the deposits of the banks of the country exceed many times the amount of the actual money in the country. This is so because a large part of the business is transacted by checks and drafts. Hence the solvency or insolvency of banks must of necessity rest upon the value of their securities rather than upon the amount of money on hand. These principles of law have been recognized by well-known textwriters and many adjudicated cases. No particular citation of authority is needed therefore to support it.

If the solvency or insolvency of the bank in question could not be proved by those who have made an examination of the affairs of the bank immediately before or after its officers have closed its doors on account of insolvency, then the statute in the present case might well never have been passed, as it would be practically impossible to convict under it. The deposit in the present case was received on Saturday, November 15, 1931, in the usual course of business, and the bank closed its doors on the following Monday, and has been in the hands of the Bank Commissioner for liquidation as an insolvent bank ever since. A bank is insolvent, within the meaning of the statute, when its assets and property are of such a character and value that it is unable to meet its demands in the usual and ordinary course of business. It is not essential that the bank shall have on hand sufficient cash to pay all of its depositors, or any considerable number of them, on the same day. It is necessary, however, for it to have-on hand cash or other available assets to meet the demands that are usually made on it from day to day in the ordinary course of business. Skarda v. State, 118 Ark. 176, 175 S. W. 1190, Ann. Cas. 1916 E, 586; Wilkin v. State, 121 Ark. 219, 180 S. W. 512; Crawford v. State, 184 Ark. 1027, 44 S. W. (2d) 360.

While the defendant introduced testimony tending to show that the bank was not insolvent when the deposit in question was received, we do not deem it necessary to set it out or to comment upon it; for the verdict of the jury must be tested by the evidence on behalf of the State. The testimony of Hicks and Wilson was sufficient to warrant the jury in finding that the bank was insolvent on November 15, 1930, when the deposit in question was received in the usual course of business.

The only other matter which need be considered in testing the legal sufficiency of the evidence upon a verdict of guilty is whether or not the defendant knew of the insolvency of the bank at the time the deposit was received. Here again we find the testimony in conflict, but a careful consideration of the evidence for the 'State, viewed in the light of the attendant circumstances, warranted the jury in finding that the defendant had such knowledge. In order to find the defendant guilty, it was not necessary to impute to him any fraudulent intent in the conduct of the affairs of the hank; it was only necessary to find that he had knowledge of its insolvency at the time the deposit in question was received.

The record shows that the American Exchange Trust Company was organized in February, 1930, by a merger of the American Southern Trust Company and the Exchange National Bank, both banking corporations in the city of Little Rock. A new bank was formed with a capital of $1,000,000 and a surplus of $500,000. The defendant was president of the American Southern Trust Company and became the president of the newly organized bank, and a member of its board of directors. "While he was not chairman of the board, the defendant was usually present at its monthly meetings and presided at such meetings. Prior to this time, commencing in the year 1900, the defendant organized various insurance companies for the purpose of conducting a fire, accident and life insurance business. These companies acquired considerable capital, which was invested by them in banks over the State. At the time the American Exchange Trust Company became insolvent, it was affiliated with about 48 other banks in the State. The defendant controlled all these banks as well as the insurance companies referred to above. He also conducted the negotiations for the purchase of the assets of some of his insurance companies by Caldwell & Company, of Nashville, Tennessee. The record shows that he kept in close touch with all of these companies; he knew their interlocking relations with each other; he knew that the insurance companies had invested largely in stocks in the various banks under his control; he was the guiding star and the principal owner of two investment companies which turned out to be wholly insolvent, and which were organized for the purpose of investing in stocks and bonds. Both these companies were indebted to the American Exchange Trust Company in large sums at the time it closed its doors.

This is not a case where the defendant was ignorant of the banking business and could not have known of the bank’s insolvency, had he made an examination of its affairs,' nor is it a case where he paid no attention to the business, and did not on -that account know its.true condition. He did not have to depend upon statements made by the officers of the bank in active charge of its affairs with regard to its financial status. It is not a case where the bank became insolvent because of an earthquake or some sudden and unexpected casualty. It may be true that the defendant relied upon other officers of the bank more or less for detailed information with regard to its financial condition, but he knew the connection of the bank with the various other forty-eight banking institutions in the State; he knew in a general way of their condition; he knew of the condition of the various insurance companies with which he was connected, and all the way through had active management and control of these institutions. He knew of the failing confidence of the public in the bank on account of his sale of assets to Caldwell & Company, and must have known in a general way that the bank was 'gradually becoming insolvent; he knew beforehand that his bank was being investigated by the Clearing House Association of Little Rock.

It is claimed for the defendant that, from time to time, he put large resources of his own in the bank for the purpose of protecting its depositors and preventing the bank from becoming insolvent. This was proper testimony to be considered by the jury, and doubtless was so considered in fixing his punishment. Under our statute, the guilt or innocence of the defendant in cases of this sort does not depend upon a fraudulent intent. The gist of the offense is that he allowed deposits to be made, knowing that the bank was insolvent. The very fact that from time to time he' put large amounts of money and securities of his own into the bank to protect the bank indicated a knowledge on his part that he knew that the bank was in failing condition. At least‘the .jury might have so found.

We have carefully considered all of the testimony in the record and are of the opinion that, if believed by the jury, the testimony on behalf of the 'State warranted the verdict of guilty. The judgment of the trial court is therefore correct, and it is affirmed. '

McHaney, J., disqualified and not participating.


author: Smith, J.

text:
    Giese v. Jones.
    Opinion delivered April 4, 1932.

      E. L. Carter and S. J. Reid, for appellant.

      Isaac McClella/n, and Wm:J. McClellan, for appellee.
   Smith, J.

Appellant alleged in his complaint that he was the owner of certain lands, therein described, which were in Road Improvement Districts Nos. 1, 2 and 7 in Grant County, Arkansas, respectively, and that he acquired his title through a foreclosure sale of a mortgage duly assigned to him, which had been executed by Benton B. Moore. He alleged that these lands had been sold to the respective districts for the nonpayment of the road improvement district taxes due and delinquent thereon for the year 1925, and that, after the sale thereof to the respective districts, they were sold by the districts to W. K. Jones, who was the business partner of Moore, and that such purchases were in legal effect mere redemptions. Testimony was offered as to the business relations of Jones and Moore, but we find it unnecessary to determine whether Jones purchased the lands from the districts for the benefit of Moore.

Plaintiff alleged that these tax sales were void for various reasons, and, among others, that the decrees of sale were rendered upon insufficient notice; were defective in character; that no jurisdiction was conferred upon the court to render the decrees of sale, and the sales were therefore alleged to be void. Plaintiff made a tender of the amount paid for the lands by Jones, the same being the amount for which the lands had been sold by the commissioner of the court to the respective improvement districts.

The decrees of sale under which the lands were sold to the districts were rendered November 14, 1925, but by reason of certain statutes extending the period of redemption, no deeds were made by the commissioner to the improvement districts until 1930, and soon thereafter the districts executed the deeds to Jones here attached.

Plaintiff alleged that the decrees pursuant to which these deeds had been made were void for the reasons hereinafter discussed, and he prayed their cancellation, and that he be permitted to redeem said lands. The court denied the relief prayed and dismissed the complaint as being without equity, from which decree is this appeal.

Road Improvement District No. 1 was created by special act 48 of the Acts of 1915 (Acts 1915, page 136). Districts Nos. 2 and 7 were organized under the provisions of act 338 of the Acts of 1915 (Acts 1915, page 1400), which appear as § 5399 et seq., Crawford & Moses’ Digest.

Section 16 of special act 48, creating District No. 1, provides the procedure for enforcing the payment of delinquent assessments of benefits. It directs the board of commissioners to enforce such payment by chancery proceedings, and requires that they give notice of the suit filed for that purpose by the publication of a notice of the pendency of such suit “by publication weekly for four weeks before judgment is entered for tbe sale of” delinquent lands, etc., in some newspaper published in Grant County. This section also contains the form of the notice so to be published, and there provides that: “All persons and corporations interested in said lands are hereby notified that they are required by law to appear within four weeks and make defense to this suit, or the same will be taken for confessed, and final judgment will be entered directing’ the sale of said lands * * *.”

Act 338, under which Districts Nos. 2 and 7 were created, provides a procedure similar, in the essential respects hereinafter discussed, for the collection of delinquent assessments of betterments in these districts, except that the notice of the suit is to “be given by publication weekly for two consecutive weeks before judgment is entered for the sale of said lands in some newspaper in said county having a general circulation therein. ’ ’ Act 338 contains a form of notice in practically the identical language employed in act 48, and recites, as does the last-named act, that: “All persons, firms or corporations interested in said property are hereby notified that they are required by law to appear within four weeks and make defense to said suits or the same will be taken for confessed, and final judgment will be entered directing the sale of said lands for the purpose of collecting said taxes, * # *.”

It thus appears that both acts require that notice for four weeks be given landowners of the pendency of the suit by the publication of the notice of delinquency. .

The decree of sale under which the delinquent lands in District No. 1 were sold recites that notice of the pendency of the suit was given by publication as follows: “The first publication thereof was made on the 22d day of October, 1925, the second on the 29th day of October, 1925, the third on the 5th day of November, 1925, and the last on the 12th day of November, 1925.”

In the decree rendered in the suit brought by the commissioners of District No. 2 it is recited that the notice was published on October 22, 1925, on November 5, 1925, and on November 12, 1925.

In the decree rendered in the suit brought by the commissioners of District No. 7 it is recited that the notice was published October 22,-1925, October 29, 1925, November 5, 1925, and November 12, 1925.

It thus appears, from the face of each of these decrees, that the four weeks’ notice required by law had not been given in any case when the decree of sale was rendered. Pope v. City of Nashville, 131 Ark. 429, 199 S. W. 101.

It is true, of course, that the instant case is a collateral attack on these decrees of sale, and it is insisted that these decrees of a superior court of record cannot be thus collaterally attacked.

We are cited to numerous cases in which it has been held that, after the confirmation of a sale has been made by the court ordering the sale, all defects and irregularities in the conduct of the sale are cured, and every pre- • sumption will be indulged in favor of their regularity.

Among the numerous cases to this effect is that of Fiddyment v. Bateman, 97 Ark. 76, 133 S. W. 192, where it was held (to quote a headnote): “Where an overdue tax decree recited that due notice was given by publication of warning order as required by law, it will be presumed on collateral attack that due notice was given, though the proof of the warning order was defective in failing to show that the newspaper in which the publication was made had a bona fide circulation in the county and had been regularly published therein for one month before the date of the first publication of the warning order, and was also defective in failing to show the date of the second insertion of the warning order.”

There was offered in evidence in that case an affidavit of the proof of publication of the warning order, pursuant to which the decree had been rendered, according to the recitals of which the notice given did not conform to the requirements of the law under which the proceeding was had. It was there said: “No statute forbids the introduction of parol testimony to prove the publication of notice in cases of this kind, and the decree recites: ‘And it further appearing to the satisfaction of this court that the clerk of this court caused the said order to be published as required by law, and did give the notice required by law, and that the proof of which notice, verified and proved as required by law, was filed, ’ etc. Such recital that notice has been given is evidence of that fact. Section 4425, Kirby’s Digest. And, as the court said in Clay v. Bilby, 72 Ark. 408, 78 S. W. 749, 1 Ann. Cas. 917: ‘If the decree or judgment does not exclude the conclusion, the presumption is that sufficient and competent evidence was before the court to sustain its findings as to the publication of notice. McLain v. Duncan, 57 Ark. 49, 53, 20 S. W. 597; Scott v. Pleasants, 21 Ark. 364; Porter v. Dooley, 66 Ark. 1, 49 S. W. 1083; 1 Bailey, Jurisdiction, § 1728, and cases cited.’ The law only required a copy of said order to be published for two insertions, and a like omission in an affidavit in a case of this kind except as to date of second insertion has been held to be a mere irregularity which did not affect the jurisdiction of the court or the validity of the decree. The omission in this affidavit could not amount to more than an irregularity, within the meaning of the decision in Clay v. Billy, supra, and cases cited.”

But it is to be remembered that, while the sales were confirmed by the court in the instant case, they were made pursuant to a special statutory power prescribing the conditions upon which the decrees of sale might be rendered, and the decrees do not recite merely that proper notice of the proceedings had been given. On the contrary, the decrees affirmatively recite the notice which was given in each case, and it appears, from the face of each decree, that the notice required by law was not given. There is therefore no presumption that legal notice was given, because the decrees themselves exclude that presumption.

In the case of Crittenden Lbr. Co. v. McDougal, 101 Ark. 395, 142 S. W. 836, it was said: “This is a collateral attack upon a domestic judgment of a court of general jurisdiction. It is well settled that every presumption will be indulged in favor of the jurisdiction of such court, and the validity of the judgment which it enters. Unless it affirmatively appears from the record itself that the facts essential to the jurisdiction of such court did not exist, such collateral attack against the judgment rendered by it will not prevail. A judgment or decree entered upon constructive service by publication will be given the same» conclusive effect and will be entitled to the same favorable presumptions as judgments on personal service. It is true that a judgment may be attacked collaterally where, by the record, it is shown that there was want of jurisdiction in the court rendering it, either of the subject-matter or of the person of the defendant.”

In the instant case, as we have said, it is shown by the record of the decrees themselves that there was a want of jurisdiction of the court rendering them, and they may therefore, as was held in the case last cited, be collaterally attacked. Boyd v. Roane, 49 Ark. 397, 5 S. W. 704; Price v. Gunn, 114 Ark. 551, 170 S. W. 247, L. R. A. 1915C, 158; Oliver v. Routh, 123 Ark. 189, 184 S. W. 843; Jones v. Ainell, 123 Ark. 532, 186 S. W. 65; Simpson v. Reinman, 146 Ark. 417, 227 S. W. 15; Road Imp. Dist. No. 4 v. Ball, 170 Ark. 522, 281 S. W. 5

Inasmuch as the decrees here attacked show, upon their face, that they were rendered without giving the notice required by law, they are subject to collateral attack, and were void as having been rendered upon an improper notice. The decree of the court below will therefore be reversed, and a decree will be entered permitting appellant to redeem the lands as prayed.