author: Smith, J.

text:
    People's Bank of Waldo v. Mendenhall.
    Opinion delivered June 19, 1922.
    1. Pledges — agreement op pledgee to insure — evidence.—In an action on a note secured by pledged cotton, which was destroyed by fire without insurance, evidence held sufficient to authorize submission of an issue as to whether plaintiff agreed to keep the cotton insured.
    2. Pledges — failure op pledgee to insure — damages.—Where cotton, pledged as security for a note, is destroyed by fire without insurance, the measure of damages for pledgee’s failure to keep it insured, as agreed, is the insurable value of the cotton at the time of its destruction.
    3. Pledges — failure op pledgee to sell. — A bank with which cotton was pledged as security for a note would be liable, if it agreed to sell the cotton on pledgor’s direction, for any loss sustained by a decline in price, after failure to sell when directed, such agreement imposing on the pledgee the duties of an agent or factor as well, but, in the absence of such agreement, such duty could not be imposed by the pledgor’s subsequent direction.
    4. Pleading — inconsistency op defenses. — In an action on a note secured by pledged cotton, which was destroyed by fire, there was no inconsistency between defenses that plaintiff failed to insure the cotton as agreed, and that it failed to sell it and apply the proceeds on the debt when directed by defendant, as liability might arise from failure to perform either duty, though the measure of damages would not be the same.
    5. Pledges — failure to sell — measure op damages. — The measure of a pledgee’s liability for failure to sell, or to permit the pledgor to sell the pledged property and apply the proceeds on the debt secured, as agreed, for an unreasonable length of time after being directed to sell by the pledgor, where the property was destroyed by fire before sale,is not the value thereof when instructed to sell, but the loss in value caused by the failure to sell or to permit the pledgor to sell.

      6. Pledges — instruction.—Where, in an action by a bank on a note for which it had held in pledge cotton that was subsequently destroyed by fire, the pledgor claimed damages both for failure of the pledgee to insure the cotton as agreed and for its failure for an unreasonable length of time to sell the cotton after direction to do so, an instruction that, upon failure to sell as directed, the pledgor was liable for the full value of the cotton at the time the pledgee was instructed to sell was prejudicial, in view of a verdict for the full value of the cotton.
    Appeal from Nevada Circuit Court; George R. Haynie, Judge;
    reversed.

      Tompkins, McRae & Tompkins, for appellant.
    After a contract of pledging is made, neither can by anything he alone may do vary the duties or powers attaching to the relation. 21 R. C. L. 663; 4 L. R. A. 194. The duty of the pledgee is to exercise ordinary care, and he is liable only for neglect of such care. 44 N. W. 5.
    The law imposed no duty upon the bank to sell the cotton. It would not be liable for its loss except for negligence. 50 Ark. 229; 17 L. R. A. 193.

      Rush & Rush, for appellee.
   Smith, J.

This is an appeal from a judgment in favor of the defendant in a suit by the People’s Bank of Waldo against T. J. Mendenhall on a promissory note for $1,030.42.

On August 29, 1918, when defendant first borrowed the money represented by the note sued on, he deposited nine bales of cotton in pledge with the bank as collateral to his note, and, by way of defense to the suit on the note, he alleged that the bank had agreed to keep the cotton insured, and had failed to do so, and that the cotton had been destroyed by fire. The value of the cotton at the time of the fire was alleged to be $605.64, and a credit for that amount was prayed.

It is insisted that there was no testimony upon which to submit this issue to the jury. But we think there was. The defendant testified that when he applied for a loan the cashier of the bank told him the loan would be made upon the condition that the bank be authorized to insure the cotton and to keep it insured until the cotton was sold, and defendant be charged with the cost, of the insurance. The defendant agreed to this arrangement, and the loan was made on these terms. Three separate policies of insurance were taken out by the bank, the last of which expired September 20, 1920. The premiums on all these policies were charged to defendant, and were paid by him when he paid the interest on the notes. The last renewal of the note was on June 23, 1920, and this is the note sued on. This was a note payable on demand, and defendant says it was so made payable because he then gave orders that the cotton be sold without further delay.

On this phase of the case the court, at defendant’s request and over plaintiff’s objection, gave instruction numbered 1, reading as follows: “You are instructed that, if you find from the evidence that the defendant deposited with the plaintiff the warehouse or compress receipts for cotton as a pawn or pledge for the security of the defendant’s debt to the plaintiff, and that it was the contract between the plaintiff’s agent and the defendant that the plaintiff should keep said cotton insured, and it failed to do so, and the cotton was destroyed by fire without insurance, then the plaintiff would be liable to the defendant for the insurable value of the cotton at the time of its destruction by fire.” This instruction is a correct declaration of the law, and we think it is not abstract.

The court gave, at defendant’s request and over plaintiff’s objection, an instruction numbered 2, reading as follows: “You are further instructed that, if you find from the evidence that the defendant turned over to the plaintiff the receipts for his cotton which had been pledged to the plaintiff as security for his debt, with instructions to the plaintiff to sell said cotton and apply the proceeds on defendant’s debt to plaintiff, and if you further find that the plaintiff negligently failed to sell said cotton, as requested by the defendant, for an unreasonable length of time, or to permit defendant to do so, and the same was destroyed by fire before sale, then you are instructed that the plaintiff would be liable to the defendant for the value of the cotton at the time the plaintiff was instructed to sell the same, and you will so find.” Numerous objections were offered to this instruction. The first was that the answer alleged no breach of contract on the part of the bank to sell the cotton, and this objection is well taken. It is insisted, however, that testimony on this phase of the case was offered without objections until after the case had been closed and the court was engaged in settling the instructions, and that the answer should therefore be treated as amended to conform to the unobjected-to testimony. It is insisted that the defenses of a failure to insure and of a failure to sell are inconsistent, and that the instruction dealing with the failure to sell is abstract, in that the testimony does not show an agreement on the part of the bank to sell the cotton on the order of the defendant, and that, in the absence of such an undertaking on the part of the bank, that obligation could not be imposed by a mere direction from the defendant.

We do not feel called upon to decide whether objection to the admission of testimony in regard to a breach of a contract to sell was offered in apt .time or not, as the judgment must be reversed for the reason hereinafter stated, and the testimony on the part of the defendant is sufficient to raise that issue.

The defendant testified that the cashier of the bank agreed to sell the cotton upon defendant’s order, and on one occasion excused his failure so to do by stating that the market was unfavorable, and that sale would be made when the market was up. Defendant stated that he then renewed the direction to sell, but this direction was not obeyed; that the cotton could have been sold when the direction to sell was first given at from thirty to thirty-two cents per pound, but it depreciated in value until it was worth only about fourteen cents at the time of the fire.

If the representative of the bank agreed to sell the cotton upon the direction of the defendant, the sale should have been made when the direction was given, and the bank would be liable for any loss sustained by a subsequent decline in price, for this agreement to sell would impose on the bank not only the duties of a pledgee, but the additional duties of an agent or factor. Sec. 65 Lawson on Bailments. If, however, the bank assumed no obligation to sell the cotton as a part of the contract whereby it was pledged, then the duty to sell could not be imposed on the bank by the subsequent direction of the defendant. Jones on Collateral Securities (Pledges) 3rd Ed., § 606, p. 727; 21 R. C. L., title “Pledge,” §§ 26 and 49; Minneapolis and N. Elevator Co. v. Betcher, 44 N. W. 5; Cooper v. Simpson, 42 N. W. 601, 4 L. R. A. 194; see also Lake v. Little Rock Trust Co., 77 Ark. 53; Robinson v. Hurley, 11 Iowa 410; Granite Bank v. Richardson, 7 Metcalf’s Reports (Mass.) 407; Story on Bailments (8th Ed.) § 320, p. 270.

There is no testimony that the bank refused to permit defendant to sell, and we need not therefore consider the law of that situation.

We do not think there is any inconsistency between the defenses interposed by defendant, that the bank failed in its duty to insure and also to sell. As we have said, liability might arise out of a failure to perform either duty; but the measure of damages would not be the same in both cases.

Instruction numbered 1 correctly told the jury that,if the plaintiff was liable for failure to insure the cotton, under the facts there hypothetically stated, the plaintiff would be liable for the insurable value of the cotton.

Instruction 2, set out above, deals with liability for failure to sell, and, as we have said, the testimony of defendant makes a case for the jury on this issue which should be submitted in instructions declaring the law as herein announced. It may be said, in this connection, that the declaration in regard to the measure of damages in instruction numbered 2 is incorrect. This instruction tells the jury to find for the defendant for the value of the cotton at the time plaintiff was instructed to sell, if the finding was made that plaintiff had negligently failed to sell the cotton as requested by defendant for an unreasonable length of time, or to permit the defendant to sell; whereas the measure of this liability would be only the loss in value consequent upon the failure to sell or to permit defendant to sell. The effect of the instruction given on this subject is to treat a mere failure to sell as tantamount to a 'conversion of the cotton.

The bank was not responsible for the fire; but if it was liable for failure to insure, then the measure of that liability would be as stated in instruction numbered 1— the insurable value of the cotton at the time of the fire.

Included in the answer was a prayer for judgment for one-half the face of a note which belonged to defendant and one R. R. Fairchild jointly, and which had been deposited with the bank as additional collateral to the note sued on. The bank had collected this note, and did not question defendant’s right to one-half the proceeds of the collection, amounting to $303.32. The verdict and judgment was in defendant’s favor for this amount, thus indicating that the jury found the bank’s liability, on account of the cotton, equaled the principal and interest of the note sued on. The note with interest to the time of the trial amounted to $1,142, and as there were only 3,764 pounds of the cotton, the jury must have assessed its value at something more than thirty cents per pound, whereas the answer had alleged its value to be only $605.54. This verdict may indicate a finding of liability against the bank both for a failure to sell and a failure to insure, as the verdict equals the value of the cotton at the time defendant claims he directed the cotton to be sold; but we cannot know that this was true, as instruction numbered 2 authorized this verdict upon the finding only that there had been a failure to sell pursuant to directions to that effect.

For the error, therefore, in giving the instruction numbered 2, the judgment must be reversed and the cause remanded for a new trial.


source: Caselaw Access Project

author: Smith, J. Hart, J.,

license: Public Domain

text:
    Jones v. State.
    Opinion delivered June 19, 1922.
    1. - Highways — road improvement districts — annual reports.— Acts 1915, No. 338, § 33, requiring all boards of commissioners of road improvement districts to file an annual report during the month of September, applies only to road improvement districts created under that act, and not to road improvement districts created under special acts.
    2. Statutes — special session op legislature — proclamation.— Act 151 of Special Session of 1919 (Crawford & Moses’ Dig., §§ 5645, 5646), requiring all road, drainage and improvement districts where bonds are sold to file an annual report, is void under Const., art. 6, § 19; such act not being within the purview of the Governor’s proclamation, and not having been passed at an extension of the special session.
    3. Criminal law — judicial notice op legislative records. — Judicial notice is taken of legislative records.
    Appeal from Howard Circuit Court; James 8. Steel, Judge;
    reversed.

      Lake & Lake, J. W. House, Jr., and J. G. Sain, for appellants.
    Nothing can be taken by intendment to supply the necessary allegations in an indictment. 94 Ark. 242; 29 Ark. 68; 38 Ark. 519; 67 Ark. 308. Criminal statutes are to be strictly construed, and no case can be brought within the statute unless it is within its words. 38 Ark. 521. The requirements of the statute that the report shall be filed on the first Monday in January is mandatory. The indictment to be sufficient must allege that they failed to file it on that day. 236 S. W. 619. The enactment of this statute was not within the proclamation convening the Legislature. 15 L. R. A. 847. The Governor’s subsequent approval of the act cannot be substituted for those earlier steps which the fundamental law prescribes. 2 Heisk. 575; 90 Mo. 646; S. W. 769; 19 S. W. 531. Legislation not embraced in the Governor’s call is unauthorized and void. 19 S. "W. 531. The case should be reversed and dismissed. 115 Pac. 696. The Legislature is limited to the business named in the proclamation. 161 S. W. 1006.
    J. 8. Utley, Attorney General; Elbert Godwin and W. T. Hammock, Assistants, for appellee.
    The exact date laid in the indictment is not material further than as a statement that it was committed before the time of the indictment. 110 Ark. 171; 52 Ark. 270; 26 Ark. 260; 31 Ark. 676; 32 Ark. 215. The indictment is substantially in the words of the statute and is sufficient. 85 Ark. 195; 97 Ark. 5; 98 Ark. 575.
   Smith, J.

Appellants are commissioners of a road improvement district in Howard County created by act No. 628 of the Acts of the regular session of the 1919 General Assembly (1919 Road Acts, vol. 2, page 2399), and they have been convicted under an indictment charging them with failure “to file a detailed, full and correct report and statement of the moneys collected and expended, the character of the improvement made and other details necessary to a full and thorough understanding of things done by said commissioners, said HowardSevier Road Improvement District Number 1 having previously issued and sold bonds and 'expenditures being made.” (] fiStl

It was stipulated, in the agreed statement of facts on which the case was submitted to the court sitting as a jury, that the commissioners did not file a report on the first Monday in January, 1922, but that their report was not filed until the 21st day of February, 1922.

The prosecution in this case was had under act No. 151 of the acts of a special session 1919 of the Genera] Assembly, which was an act entitled, “An Act requiring the commissioners of all road districts, drainage districts, and improvement districts of all kinds, to file an annual report on the first Monday in January of each year hereafter. ”

Section 1 of this act provides “that hereafter all commissioners of road districts, drainage districts and improvement districts of every kind where bonds are sold, shall be required to file a report on the first Monday in January of each year, during the time expenditures are being made, and said report shall contain a detailed, full and correct statement of everything done by said commissioners up to the date of the filing of their report, including the amount of money collected, the amount of money expended, showing the date and number and amount of each voucher, to whom issued, and for what purpose, the character of the improvement made, the amount of the improvement, and every other detail necessary to a full and thorough understanding from.the report of everything done or accomplished by said commissioners and district. Said report shall be filed with the clerk of the county court of the county in which said improvement district is organized, or, if the district or any part of it is in more than one county, then in each county of said district; and said report when so filed shall be kept by said clerk, subject to the inspection of any taxpayer in said district.”

Section 2 of the act provides that a fine of $500 shall be imposed upon a conviction of a violation of section 1.

This act appears as sections 5645 and 5646, C. & M. Digest.

It is insisted, on behalf of the State, that section 5645, C. & M. Digest, applies to all road improvement districts, and therefore supersedes section 5452, C. & M. Digest. This last-numbered section was section 33 of act No. 338, approved March 30, 1915 (Acts 1915, p. 1400) commonly known as the Alexander Eoad Law. This section 5452 requires the filing of an annual report during the month of September by all boards of commissioners of road improvement districts, but it quite obviously applies only to the road improvement districts created under that act.

It becomes necessary, therefore, to determine whether act No. 151, set out above, is a valid enactment, as the conviction appealed from was had -under its provisions.

Act No. 628 of the Acts of 1919 creating the road improvement district in question does not require the filing of an annual report by the commissioners; and the conviction cannot therefore be sustained unless act No. 151 is a valid statute.

We have reached the conclusion that this wholesome act is not a valid law; but its .validity must be tested, not by any consideration of its beneficial safeguards, but solely upon a consideration of the provisions of the Constitution pursuant to which it was enacted.

This act No. 151 was passed at an extra session of the General Assembly which was convened pursuant to a proclamation of the Governor, which reads as follows:

“Know ye that, whereas, an extraordinary occasion has arisen which makes it necessary so to do, I, Charles H. Brough, Governor of the State of Arkansas, by virtue of the power and authority vested in me by section 19, article 6, of the Constitution of the State of Arkansas, do by these presents call a special session of the General Assembly of the State of Arkansas, to meet and convene at the State House, at the hour of twelve o’clock noon,, on the 22nd day of September, 1919, and I specify the purposes for which the General Assembly is convened to be as follows, to-wit:
“1. To enact such laws as may be necessary to decrease the high cost of living.
“2. To enact such laws as will enable cities and towns to collect an additional tax for motor vehicles, to be used for street purposes.
“3. For the purpose of enacting laws for establishing local road, bridge, drainage, school and levee improvement districts, and amending and curing defects in existing special local laws for the' same, and ratifying, confirming and validating local improvement districts organized under general or special laws, and to enact such laws as will permit the reconstruction or extension through improvement districts of waterworks systems, to the end that cities and towns or new territory taken therein may be supplied with adequate service.
“4. To appropriate a sufficient sum to pay for services rendered and expenses incurred during the biennial period ending March 31, 1919.
“In testimony whereof, I have hereunto set my hand and caused, as Governor of the State, the Great Seal of the State of Arkansas to be affixed, this 15th day of September, 1919.”

It is shown, from the certificate of the Secretary of State, based upon an examination of the legislative records — of which we would, of course, take judicial knowledge — that House Bill No. 134, which became act No. 151, was introduced at this special session while other business within the Governor’s proclamation was being transacted, and that other bills within the Governor’s proclamation were introduced both prior and subsequent to the introduction of House Bill No. 134, and that the purpose of the call of the Governor had not been completed when House Bill No. 134 was introduced, and that there was no vote of the two houses entered on the journals thereof extending the session for the purpose of considering matters not included in the Governor’s call.

Section 19, article 6, of the Constitution, under which the extra session was convened, is as follows: “The Governor may, by proclamation, on extraordinary .occasion convene the General Assembly at the seat of government, or at a different place, if that shall have become, since their last adjournment,dangerous from any enemy or contagious disease; and he shall specify in his proclamation .the purpose for which they are convened, and no other business than that set forth therein shall be transacted until the same shall have been disposed of, after which they may, by a vote of two-thirds of all the members elected to both houses, entered upon their journals, remain in session not exceeding fifteen days.”

At section 56 of the article on Statutes in 25 R. C. L. p. 806, it is said: “Constitutional provisions limiting the scope of legislation at special sessions are mandatory, and any law enacted at a special session is void if it is not the subject or subjects designated by the executive’s call or message, even though it has been approved by the Governor.”

At section 65 of Lewis’ Sutherland, Statutory Construction (2nd ed.), p. Ill, it is said: “Extra or special sessions of the Legislature are usually provided for in the Constitution, and in such cases the Legislature is also usually limited to the transaction of such business as is mentioned in the call. Where this limitation exists, legislation relating to other subjects will be void. In order to determine this question the courts will take judicial notice of the Governor’s proclamation. The Legislature may act freely within the call; may legislate upon all or any of the subjects specified, or upon any part of a subject; and every presumption will be made in favor of the regularity of its action.” See also, Cooley on Constitutional Limitations (7th ed.), p. 222; and cases collected in the note to Long v. State, 21 A. &. E. Cases, page 405.

Inasmuch as the session of the General Assembly was not extended by the vote of the two houses after the completion of the business embraced in the Governor’s call, the act under review must fall as having been passed without Constitutional authority, unless authorization for its enactment is found in the Governor’s proclamation,

If authorization for act 151 exists, it must he found in the third paragraph of the proclamation. The first phrase of this paragraph reads as follows: “For the purpose of enacting laws for establishing local road, bridge, drainage, school and levee improvement ' districts. ’ ’ The second phrase of the third paragraph reads: “and amending and curing defects in existing special local laws for the same.” The remaining-portions of this third paragraph are so obviously inapplicable that they need not be discussed.

The first phrase of this third paragraph of the proclamation authorizes the enactment of laws for establishing local road, bridge, drainage, school and levee improvement districts. The title of act 151, quoted above, shows that act has no relation to this phrase of this third paragraph.

Concerning the second phrase of the third paragraph, we think it quite obvious that it only authorizes legislation amending and curing defects in existing local laws which established road, bridge, drainage, school and levee improvement districts. The first phrase of paragraph three of the proclamation authorizes legislation for the purpose of establishing local road districts, local bridge districts, local drainage districts, local school districts and local levee districts; and then follows, in thef second phrase, authorization for legislation amending and curing defects in existing special local laws which had created such districts. Only local legislation is included in either the first or second phrase.

This second phrase of paragraph three of the proclamation authorizes the enactment of legislation amending and curing the defects in existing local legislation and was used advisedly and discriminatingly. This is shown by the phrase immediately following, “and ratifying, confirming and validating local improvement districts organized under general or special laws.” This last phrase authorized legislation ratifying, confirming or validating local improvement districts, whether organized under general or special laws.

Act 151 is not a local law. It does not purport to amend any local bill. It covers not only tbe improvement districts mentioned in tbe first phrase of the third paragraph of the proclamation, but applies to “improvement districts of every kind where bonds are sold.” It applies not only to districts created under the special laws to which the proclamation referred, but it applies to districts created under general laws. It is a general law, and not a special one, and applies to all districts theretofore or hereafter created, and for these reasons act 151 is not within the purview of the Governor’s proclamation.

It is true the Governor approved act 151, but that action on his part does not supply the lack of authorization for its enactment in his proclamation. See the authorities cited above.

Having reached the conclusion that act 151 is not a valid statute, it necessarily follows that the conviction based upon it cannot stand, and the judgment of the court below must therefore be reversed, and the cause will be dismissed.

Hart, J.,

(dissenting). My views of the law are well expressed by Judge Reese in construing a similar provision of the Constitution of the State of Tennessee in the case of Mitchell v. Franklin and Columbia Turnpike Co., 3 Humph. 456, as follows: “This undoubtedly is a very salutary provision, tending somewhat to check over-legislation, and to render laws a little more stable, by furnishing a period of two years, during which they may be in some degree subjected to the test of a brief experiment, And cases may sometimes arise, it is to be sincerely hoped but seldom, in which it may become the duty of the court to declare a law, passed under such circumstances, beyond the scope of the legislative commission out of this provision of the Constitution.”

The intention of this constitutional provision is to prevent the enactment of laws having no connection or relation to the subjects embraced in the call. The constitutional provision should be given a practical and liberal construction to carry out its evident purpose, and this is in the application of the maxim of construction that all doubts shall be reserved in favor of an act of the Legislature.

I think the act in question relates to one of the subjects embraced in the call of the Governor, and that its provisions are germane to that subject. One of the subjects of the call is “for the purpose of enacting laws for establishing local road, bridge, drainage, school and levee districts,” etc. In other words, one of the subjects of the call was to enact local improvement district laws of the character enumerated.

In the general road law there was already a provision providing for the filing of reports by the commissioners. This is a salutary provision, and is plainly intended for the protection of the property owners. Such a provision seems to have been left out of all the special improvement district laws passed at the regular session of 1919.

It could not be said that the passage of an act relating to all such local improvement districts for the construction of roads should be considered a plain and manifest departure from the subjects named in the call. On the other hand, such a provision is germane to the subject of enacting local road improvement district laws, and may be said to be an appropriate part of such legislation.

The Constitution only intended to require the Governor by his call to confine legislation to particular subjects and not to restrict the details springing out of the subjects enumerated in the call.

Therefore I respectfully dissent from the majority opinion.


text:
    Bird v. State.
    Opinion delivered June 19, 1922.
    1. Homicide — abstract instructions harmless when. — In a prosecution for murder in the second degree, instructions usually given in trials for murder in the first degree were abstract and improper, but were not prejudicial where the instructions as a whole made plain the charge on which the cause was submitted, and defendant was found guilty only of voluntary manslaughter, which was included in the allegations of the indictment.
    2. Criminal law — improper argument. — In view of Crawford & Moses’ Dig., § 804, providing that persons under 18 convicted of a felony may be sent to the penitentiary if the trial judge deems such course expedient, argument of counsel assisting the State in a prosecution of a 13-year-old boy for murder in the second degree that defendant, if convicted, would not be sent to the penitentiary but would serve his term in the reform school, at least until he was 21, when sanctioned by the court, was erroneous and prejudicial.
    Appeal from Conway Circuit Court; J. T. Bullock, special judge;
    reversed.

      W. P. Strait, for appellant.

      J. S. Utley, Attorney General; Elbert Godwin and W. T. Hammock, Assistants, for appellee.
   Smith, J.

Appellant, a thirteen-year-old boy, was tried under an indictment charging him with the crime of murder in the second degree, and was convicted of voluntary manslaughter and his punishment fixed at two years in the penitentiary, and he has appealed.

His defense was that the killing was an accidental oné, and the case was tried on that theory. Certain assignments of error relate to the admission and exclusion of testimony; but we find no érror in these respects. Other assignments of error relate to the giving of and refusal to give certain instructions; but we think the case was submitted under instructions fully and correctly declaring the law. It does appear that several-of the instructions given were those usually given in the trial of persons charged with murder in the first degree. They were therefore abstract, and should not have been given, but they were not prejudicial, as the instructions, considered as a whole, made plain the charge upon which the cause was submitted to the jury, and the defendant was found guilty only of the offense of voluntary manslaughter, a charge included in the allegations of the indictment.

In the argument before the jury special counsel representing the State referred to appellant’s age, and stated the fact to be that a convicion would not mean a sentence to the penitentiary or service of a term therein, but that it meant only a term in the reform school. An objection to this argument was overruled. Before concluding his argument special counsel said: “Gentlemen of the jury: If you convict the defendant he will not be sent to the penitentiary, for under the law he would serve his term in the reform school; he would never see the penitentiary. If he was convicted for a long term he would go to the reform school until he was 21 years old and then be transferred to the penitentiary.” Counsel for appellant, renewed his objection to this argument, whereupon the following colloquy occurred: “Court: Mr. Gordon, I think you have gone far enough in that argument.” Mr. Gordon turned to the court and said: “That is the law; will the court not permit me to state the law to the jury?” And the court replied: “I have permitted you to state it once, but think that is sufficient.” To this statement and the ruling thereon appellant at the time objected and saved his exceptions.

In view of the record which we have set out, it appears that the court sanctioned, as a declaration of the law,, the statement of the special counsel for the State that, if appellant were convicted it did not mean a term in the penitentiary but only a term in the reform school, and the ruling was tantamount to an instruction by the court. Briggs v. Jones, 132 Ark. 455; Davie v. Padgett, 117 Ark. 551.

Was error committed in this ruling?

Counsel did not correctly state the law. By section 804,.C. & M. Digest, it is provided that ‘-‘all convicts in the penitentiary now, and all persons hereafter sentenced to the penitentiary, under the age of eighteen years, * * * # shall be committed to and placed in said reform school by said board; provided, said persons under eighteen years of age convicted of a felony may be sent to the penitentiary, if, in the judgment of the trial judge, such course may be expedient * * * * * »».

The ruling of the court on the argument of counsel presents the same question considered by the court in the case of Pittman v. State, 84 Ark. 292, where Judge Battle, speaking for the court, said: “The instruction does, not conform to this statute. Under the statute disposition that will be made of the defendant, if convicted, is not determined nor intended to be known until after his conviction. He may be committed to the reform school by the ‘board of commissioners to manage the penitentiary’ or may be sent by the trial judge to the penitentiary. Under the law his punishment, if convicted of murder in the second degree or manslaughter, should be fixed in the manner it would be if it was known he would suffer it in the penitentiary. ” An error in this quotation appears in the official report of this case in 84 Ark., but we give .the quotation as it appears in the original opinion and in 105 S. W. 874.

So here it was erroneous to tell the jury that appellant would be sent to the reform school, and not to the penitentiary, for the statement to that effect, sanctioned by the court, may have influenced the jury in returning a verdict of guilty; whereas appellant was entitled, under the law, if convicted, to have his punishment assessed as it would have been if it had been known he' would suffer it in the penitentiary. .

Other assignments of error are discussed; but inasmuch as they relate to matters not likely to recur at the trial on the remand of the cause, we pretermit a discussion of them.

For the error indicated the judgment is reversed and the cause remanded for a new trial.


text:
    Hurst v. Cosby.
    Opinion delivered June 19, 1922.
    1. Attorney and client — attorney’s lien on client’s papers.— In a suit in equity by an attorney against his client to have his lien fixed on proceeds of an insurance policy, a complaint which alleged that plaintiff had in his possession papers and proofs necessary in a settlement of the claim, without alleging that the policy was in his possession, was insufficient to entitle plaintiff to enforce a common-law lien in equity.
    2. Appeal and error — former opinion. — On a second appeal, the former opinion is the law of the case.
    Appeal from Washington Chancery Court; Ben F. McMahan, Chancellor;
    affirmed.

      Sullins S Ivie, for appellant.

      John Mayes, for appellee.
   Smith, J.

This is the second appeal in this case, the opinion on the former appeal being reported in 149 Ark. 11. As appears from that opinion, this is a proceeding to enforce an attorney’s lien. In the former appeal, as in the; ¡present one, the decree was rendered on the pleadings. The first decree, which declared a lien in favor of the attorney, was reversed by us because he had not “set forth in his complaint a state of facts which would confer a lien, in that he does not allege that the policy or other evidence, if any, of appellant’s claim against the insurance company was turned over to him and still remains in his possession.” As a reason for that ruling we said: “Such a lien at common law was, as we understand, on the evidence of indebtedness in the hands of the attorney, and not on the debt itself. This being true, appellee has not shown in the complaint that he had in his possession any papers on which he was entitled to a lien.”

On the remand of the cause the plaintiff amended his complaint, 'to allege “that the said defendant, Gr. A. Cosby, turned over and delivered to this plaintiff, as his attorney, all of his papers, proofs, etc., which were necessary in making said adjustment, settlement and collection as aforesaid, and this plaintiff remained in possession of same at all times until the filing of his original suit herein, and is still in possession of same.”

After this amendment to the complaint had been filed, defendant filed a motion to make the complaint more definite and certain by alleging what papers he claims to have in his possession; but this motion does not appear to have been .acted upon by the court or responded to by the plaintiff.

The defendant also filed the following demurrer:

“1. That said complaint does not contain matter or state facts sufficient to constitute a cause of action within the jurisdiction of this court.
“2. That said complaint and each and every paragraph thereof, taken separately or collectively, fail to contain matter or state facts sufficient to constitute a cause of action against the defendant within the jurisdiction of this court.
“He therefore says this court is without jurisdiction to hear and determine this cause, and that same should be dismissed.”

Upon the hearing thereof ■ this demurrer was sustained. The court then offered to transfer the cause to the law docket, but that offer was declined, and, as plaintiff elected to stand upon his amended complaint, the same was dismissed, and plaintiff has appealed.

It is quite obvious that the paper which evidenced the claim of the client against the insurance company was the policy of insurance. There could be no lien on the proofs of death, or papers of that character, for these do not evidence the debt sought to be enforced. The policy of insurance was the paper which evidenced the claim, and there is no allegation that plaintiff ever had possession of that paper. In construing the amendment to the complaint it must be remembered that the decree in plaintiff’s favor was reversed because he had not alleged possession of the papers evidencing the claim against the insurance company. The motion made to make the complaint more definite and certain, which was filed before the demurrer was sustained, called attention to the failure of the complaint to allege possession of the policy by asking that plaintiff be required to allege the papers which he claims to have in his possession. "We think therefore that the complaint should not he treated as alleging the plaintiff’s possession of any papers except those made necessary after the death of the insured to make the adjustment, settlement and collection of the policy of insurance, and not as having alleged the possession of the policy itself — the evidence of the indebtedness.

The attorney had no lien on the affidavits, or depositions, or other proofs of death of the insured, although these papers may have been necessary in making the adjustments, settlement and collection of the policy; and there was no lien on the policy because it is not alleged that the policy came into plaintiff’s possession in the course of his employment.

The former opinion is the law of the case, and we there said that “the court erred in refusing to transfer the cause to the circuit court, and for that reason the decree is reversed and the cause is remanded with directions to transfer the cause, unless further grounds are stated for equitable relief. ’ ’

As we have just said, the further, grounds for equitable relief recited in the amendment to the complaint, which we set out above, are not sufficient to entitle the plaintiff to the common-law lien of an attorney on his client’s papers which he seeks to assert, and the cause should therefore have been transferred to the circuit court. This the court below offered to do, and as plaintiff declined to accept that offer, nothing remained to be done but to dismiss the complaint, and the decree so ordering is affirmed.

Wood and Humphreys, JJ., not participating.


author: McCulloch, C. J.

text:
    Fuquay v. Desha Bank & Trust Company.
    Opinion delivered June 26, 1922.
    1. Estoppel — inconsistent claims. — Where the owner of property-mortgaged it to a bank to secure funds to pay debts of his business, and had the proceeds placed to his wife’s credit in the bank, after becoming bankrupt, on his claim of exemption out of the funds in the bank, he was estopped to assert a claim to have the funds applied in satisfaction of the mortgage debt.
    2. Bankruptcy — rights of third parties. — Where a husband and wife mortgaged their homestead to secure credit at a bank, and the money was placed to the wife’s credit, to be used in paying certain debts of the husband, an order in a voluntary proceeding by the husband in bankruptcy did not bind the interest of the wife in the bank account or affect her right to have it apply on the mortgage debt.
    3. Homestead — consideration for conveyance. — Where a husband and wife mortgaged their homestead to secure credit at a bank to use in paying certain debts of the husband’s firm, the wife’s signature to the mortgage was sufficient consideration for an agreement that the proceeds should be deposited to her account, constituting a valid contract,'as against the claims of the creditors of her husband after he became bankrupt.
    4. Mortgages — priority.—Where a husband and wife mortgaged their homestead to secure credit at a bank which lent the money on condition that it should be used in the payment of the debts of the husband’s firm, and which money was deposited to the wife’s account, on the husband’s becoming bankrupt, the bank had a right to the payment of the debt due by the copartnership out of the fund before same should be applied to the mortgage debt.
    Appeal from Deslía Chancery Court; E. G. Hammock, 'Chancellor;
    reversed.

      Taylor & Jones, for appellants.
    The record is clear that the money was borrowed for the express purpose of paying the creditors and for no other purpose; that Mrs. Fuquay executed the mortgage on the homestead only on condition that the money so borrowed should be so applied and that it be deposited in her name, subject to her check, for that purpose. This having been done, and the purpose for which the loan was' obtained having failed, she had the right to have the money used for the purpose of canceling the mo'rtgage. 181 N. W. 628; 31 111. App. 353, 358; 87 S. W. 178; 99 Tex. 546, 91 S. W. 106. She was not a party to any of the attachment and garnishment proceedings nor to the proceeding in bankruptcy, and her rights are not affected thereby.

      E. E. Hopson and Be Witt Poe, for appellee.
    The facts in this case do not bring it within the rule laid down in Kittle v. Straus, 181 N. W. 628, relied on by appellant. The evidence clearly shows that Mrs. Fuquay had no agreement with the bank or any of its agents, but only with her husband.
    The lower court was justified in finding the agreement between Mr. Fuquay and the bank to be as stated by Mr. Thane, and the former and his wife never attempted to enforce the agreement. After the garnishment had been served, innocent parties’ rights attached. Moreover there was an adjudication of the Federal court that this money belonged to the creditors, and the bank had no alternative but to obey the mandates of that court. If Mrs. Fuquay can be classed as an innocent party, the rule laid down in Desha Bank & Trust Go. v. Doran, 147 Ark. 177, should apply. See also 62 Ark. 325; 107 Id. 16.
   McCulloch, C. J.

J. W. Fuquay is' the owner of certain real estate, which constitutes his homestead, in the town of Arkansas City, and on May 22,1917, he executed a mortgage thereon to appellee to secure a loan of money in the sum of two thousand dollars, evidenced by a promissory note of that date, bearing interest at ten per cent, per annum from date until paid. His wife, Lizzie Fuquay, joined in the execution of said mortgage and note, and she is also one of the appellants. This is an action instituted by appellee against appellants in the chancery court of Arkansas County to foreclose said mortgage.

Appellee is a 'banking corporation doing business in Arkansas 'City, and the sum loaned to appellants was deposited in appellee bank to the credit of Mrs. Fuquay, where its still remains thus deposited.

Appellants answered the complaint, setting up the defense that the loan had been repaid by a check drawn by Mrs. Fuquay on said fund and delivered to appellee.

On the hearing of the cause the court rendered a decree foreclosing the mortgage for the full amount of the original debt and accrued interest.

J. W. Fuquay and T. L. Pertius were in copartnership, engaged in the mercantile business in Arkansas City under the firm name of Model Grocery & Meat Market, and became considerably involved in debt. Fuquay applied to Mr. Thane, the president of appellee bank, for a loan of three thousand dollars to use in paying* the co-partnership debts. The firm owed the bank a debt of two hundred dollars, and Thane agreed to make a loan of two thousand dollars to be used for the purposes mentioned. He testified that Fuquay represented to him that the stock of merchandise and fixtures were of the market value of about $3,800, that the debts of the firm amounted only to about eighteen hundred dollars, and that he made the loan for the bank on the faith of those representations.

When the note and mortgage were executed, J. W. Fuquay delivered the same to Mr. Thompson, the cashier of the bank, and the amount of the loan was, at the request of-Fuquay, placed to the credit of Mrs. Fuquay, and she was given a depositer’s book showing the deposit in her name. Thane testified that he did not know that the money was «thus deposited until after it was done. A short time afterwards Mrs. Fuquay gave a check oh the fund for seventy dollars to pay a personal debt, and the bank refused to honor the check. This check was presented for payment on June 11,1917, and two days earlier the Dermott Grocery Company sued the members of the copartnership for debt and caused a garnishment to be served on the bank. On June 19, 1917, Mrs. Fuquay drew a check on the bank, payable to its own order, for the full amount of the deposit, and J. W. Fuquay delivered the check to Thane with instructions to credit the amount on the mortgage debt to the bank. Thane refused to do that on the ground stated that ‘ ‘ the matter was in the hands of the court,” and he stated that he would hold the check until the matter was decided by the court. Thane still holds the check, and the money is still on deposit to the credit of Mrs. Fuquay.

On June 25,1917, J. W. Fuquay filed a voluntary petition in bankruptcy and was adjudged to be a bankrupt. Thane was appointed trustee for creditors and receiver to take charge of the property. On the day of the adjudication of bankruptcy, the referee made an order adjudging that the said funds in bank had been wrongfully transferred by the bankrupt to his wife as a gift without consideration, and the order restrained the bank from disposing of the funds, and also restrained the bankrupt and his wife from disposing of the funds. It' does not appear that this order was served on Mrs. Fuquay, or that she otherwise became a party to the bankruptcy proceedings. Subsequently an order was made by the bankruptcy court allowing Fuquay’s claim for exemptions in the sum of five hundred dollars out of said funds in bank and out of the proceeds of the sale of merchandise by the receiver, and the remainder was ordered distributed to creditors. This order has not been complied with as to funds in the bank, and, as before stated, the funds still remain there. The bankruptcy court also allowed the bankrupt’s claim of homestead in the mortgaged property, subject to the mortgage. There are other details which will be referred to later in this discussion so far as. found to be material.

Fuquay, the bankrupt, is, by his act in claiming exemptions out of the funds in bank, estopped from asserting the right to have the funds applied in satisfaction of the mortgage debt. The rights of Mrs. Fuquay stand, however, on,a different basis. She was not a party to the bankruptcy proceedings and is not bound by the order of the bankruptcy court as to her individual rights in the'. property. The funds were not in the hands or under control of the receiver or trustee, but were deposited in the bank to her credit, nor was she holding the funds as the agent of her husband. She held the funds in her own right to perform the conditions upon which the execution of the. mortgage were based. The bankrputcy court had no jurisdiction to adjudicate her rights in the property. If the funds in her hands really belong to the estate of the bankrupt, a suit against her by the trustee in a court .of competent jurisdiction is the appropriate proceeding to adjudicate her rights. I Collier on Bankruptcy, pp. 523-527. She testified that she refused to sign the mortgage except on condition that the borrowed money should be placed in her hands for use only in discharging the whole of the copartnership debts, so that the business of her husband could continue unmolested by creditors, and this was agreed to by her husband to procure her signature. The mortgage on the homestead could not have been legally executed without her signature, and this f ormed a valid consideration for the aforesaid agreement with reference to the disposition and use of the funds. Hershy v. Latham, 46 Ark. 542; Baucum v. Cole, 56 Ark. 259; Davis v. Yonge, 74 Ark. 161.

The mortgaged real estate being the homestead, the creditors could not complain of any disposition made of it, and the husband had the legal right to mortgage it for her benefit. The money borrowed was paid directly to her — did not pass to her husband and then come to her from him. So the general creditors could not complain unless they became parties to the transaction. None of the creditors except the bank was privy to this transaction, hence when the plan failed because it was found that the fund was insufficient to pay all of the debts, so as to comply with the conditions upon which Mrs. Fuquay joined in the mortgage, she had the right to apply the funds in discharge of the mortgage debt so as to restore the property in its former unincumbered condition.

The bank bears a different relation to the transaction and was in privity therewith. It lent the money on condition that it should be used in payment of the co-partnership debts. This is in accordance with Thane’s testimony, which we should accept as true, since it was accredited by the chancellor and is not overcome by a preponderance of the testimony. The bank has the right to insist that its own debt due by the copartnership be paid out of this fund before it is applied in satisfaction of the mortgage debt.

The decree of the chancery court was therefore erroneous in foreclosing the mortgage as to the whole of the debt, and it is reversed with directions to credit the mortgage debt with the remainder of this fund as of the date of the check, after deducting the amount of the debt due to the bank from the copartnership, and to decree a foreclosure of the mortgage for the amount of the balance due, with interest together with any amount of taxes on the land shown to have been paid by the bank.


text:
    Jones v. Cooper.
    Opinion delivered June 26, 1922.
    Purlic service commission — jurisdiction.—A proceeding to restrain a mayor and city council from revoking a franchise to a railroad to maintain a switch track connecting two lines of railroad over a street involves a judicial question which is not within the jurisdiction of the Railroad Commission, and an appeal from its decision gives the circuit court no jurisdiction.
    Appeal from Pulaski Circuit Court, Second Division; Guy Fulk, Judge;
    reversed.

      James E. Hogue, for appellant.
    The Railroad Commission and the circuit court of Pulaski County had no jurisdiction to restrain the officers and agents of the city of Hot Springs from doing any act in the premises. Act No. 124, Acts 1921, covers the entire subject-matter in controversy, and that act confers no such, jurisdiction. See §§ 17, 19 and 23 thereof ; 101 Ark. 223, 142 S. W. 165; 64 Ark. 152, 41 S. W. 555.

      L. E. Sawyer, for appellees.
   McCulloch, C. J.

This is a proceeding which originated before the Railroad Commission to restrain the mayor and city council of Hot Springs from revoking a franchise or right-of-way heretofore granted by the city council to the Memphis, Dallas & Gulf Railroad Company to construct a track over and along one of the streets of the city for use as a switch-track between the line of railroad of said company and the tracks of the Chicago, Rock Island & Pacific Railroad. The petition was filed before the Commission by certain citizens, property owners and business men of the city of Hot Springs, who asserted that the interchange switch-track was constructed with funds donated by the business men of Hot Springs, who were patrons of said railroad company, and that they were, for that reason, interested in the maintenance of the track. It was also alleged that this track furnished the only connection between the different railroads running into Hot Springs, and that a disconnection would operate as a serious injury to the business interests of the city, and to the interest of the petitioners in particular.

It is further alleged in the petition that the city council had enacted an ordinance repealing the former ordinance granting the right-of-way or franchise for the construction of the interchange track, and that, unless restrained, the city would proceed to tear up the track..

Upon hearing the petition, the Railroad Commission entered 'an order restraining the city of Hot Springs and the mayor and city council, their agents and officers, from “removing, tearing up, molesting, breaking connection, or in any way interfering with the track of the M. D. & G. Railroad Company as it is now connected and laid on the streets and alleys of the said city of Hot Springs.”

The mayor and city council prosecuted an appeal to the Pulaski Circuit Court, 'and they tendered an an swer in that court setting forth the consideration upon which the franchise or right-of-way was granted to said railway company, and the failure of said company to perform the conditions and pay the consideration. The answer was tendered after the court had overruled a demurrer to the original petition, and the court also refused to permit the answer to be filed. The matter was then heard by the circuit court upon the reeord made before the Railroad Commission, and the decision of the Railroad Commission was affirmed, and an appeal has been prosecuted to this court.

We pretermit discussion of the question argued pro and con by counsel, whether the interchange switch-track in controversy constituted a local utility within the regulatory power of the city council, or whether it was one falling within the • jurisdiction of the Railroad Commission.

This is not a proceeding which falls within the power of regulation conferred by the Constitution and statutes of the State upon the Railroad Commission, as the Commission is a board created for the regulation and control of public utilities, and its functions are administrative in character, though its decisions and orders are q^asi-judicial in the exercise of the powers conferred for the purpose of regulating and controlling public utilities. None of its functions are strictly judicial in the sense that it is empowered to adjudicate property or contractual rights. Thomas-Bowman Cooperage Co. v. M. & N. A. R. Co., 151 Ark. 589; Public Service Electric Co. v. Utility Commissioners, 88 N. J. Law, 603.

The question of interference with the use of the track along the streets of the city is not one involving the regulation of a public utility, .but involves the question of controverted rights between the city and the railroad company. This is purely a judicial matter, which falls within the judicial power conferred and parceled out by the Constitution among the various courts. Public Service Electric Co. v. Utility Commissioners, supra.

. If the railroad is rightfully using the switch-track in controversy, or if the petitioners in this proceeding have rights therein which would be violated by interference by the city, the remedy must be sought in a court exercising proper jurisdiction. The Railroad Commission has no authority to adjudicate those rights, nor did the circuit court of Pulaski County acquire such jurisdiction on appeal.

The city council has no power to grant a charter to a railroad corporation or to exercise regulation and control over its operations, but the city has control over its own streets,, and the question involved in this controversy is a judicial one — whether the rights have been properly granted by the city council, or whether the threatened interference with the operation of the track on the part of the city is in violation of contractual rights.

The judgment of the circuit court is therefore reversed and the cause is dismissed.


text:
    Crawford v. Pulaski Road Improvement District No. 10.
    Opinion delivered June 26, 1922.
    1. Highways — changes in route of roads to be improved. — Under Road Acts 1919, p. 1814, creating Road Improvement District No. 10 of Pulaski County, the county court could make changes in the routes of the roads to be improved where they were comparatively inconsequential and did not lessen the beneficial effects on the contiguous property, especially since the statute only designates the established roads by name, and the changed routes fall within the statutory description.
    2. Highways — discretion of commissioners. — Road Acts 1919, p. 1814, creating Road Improvement District No. 10 of Pulaski County, vested in the board of commissioners discretion as to the extent and character of the improvement to be made, and permitted them to eliminate parts of the roads mentioned, and did not require them to repair roads already .sufficiently, improved or . repaired. ' .
    Appeal from Pulaski Chancery. Court? J-oTm-E.Martmeau, Chancellor;
    affirmed;

      Emerson, Donham S Shepherd and Will G. Akers, for appellant.
    Commissioners of improvement districts have such powers only' as are conferred by the express terms of the statutes under which they act, or such as are necessarily implied therefrom. 130 Ark. 410.
    Neither expressly, nor by necessary implication, are appellees given by the statutes involved here, the authority to abandon any part of the roads which they are required to improve, nor is there any discretion invested in them with respect to changes of routes. On the contrary, these statutes evidence the legislative intent to provide for a construction upon certain well established highways and in no other places. See §§ 1 and 2 of the original Act, 436, Acts 1919; §§ 1 and 2 of Act 189, Acts 1920, Special Session, amendatory of §§ 2 and 4 of Act 436; $ 6 of Act 436. The legislative intent is further evidenced by the fact that it did not, in the amendatory act, give the commissioners the power to make the improvement upon the described route, or upon a route substantiating the same as the described route, as was the case in the act involved in Sikes v. Douglas, 147 Ark. 469-473.
    If the act is susceptible of a construction permitting the levy of special improvement district taxes upon lands which derive no direct, local or special benefit from the mailing of the improvement, then it is void as being arbitrary, unjust and discriminatory. 130 Ark. 70; 139 Id. 574; 142 Id. 73. The commissioners have no power to abandon the construction of a part of section No. 1, known as the Crystal Hill Loop road. 145 Ark. 487. Also they are without authority to build any portion of the Perryville road outside the limits of section No. 6. 50 Ark. 116; 133 Id. 64; 142 Id. 439; Id. 509.

      Rose, Hemingway, Cantrell & Lougborough, for appellee.
    The statute conferring power on the commissioners says: It shall be the duty of the commissioners to can

      struct, repair or improve the roads, or parts of roads hereinbefore described, by grading, draining and surfacing them-in such manner and with such materials as the commissioners deem best for the interest of the district, etc. Under the broad powers thus conferred, the commissioners are not required to improve every part of the entire length of the road in each section, without regard to the lack of need to make the improvement in some parts and the .lack of economy of improving such parts.
    The assessment of benefits follows the plans and can only be such as will flow from the carrying out of the plans. Every part of each section would be benefited to some extent by the improvements shown on the plans, and what this extent will be is for the assessors to ascertain, subject to notice to the property owners and hearing, with rights of appeal. 125 Ark. 325.
    The act does not attempt to specifically lay out the exact route of the roads to be improved, but they are described by name, with the provision, that the public roads .are to improved. The situation is essentially different from that of a district organized under the general road improvement law, wherein the investigation period is passed when the district is organized, and the property owners petition for definite improvements on a fixed route. 125 Ark. 325; 139 Id. 192; Id. 524; 147 Id. 469; 120 Id. 284.
    As to the loop road mentioned as part of the Fort Smith road, the record shows that the commissioners should refrain from making improvements on this part of the road, and the Legislature gave them this power. The act is essentially different from that involved in the Phillips case, 145 Ark. 487. As to the small part of the Perryville road outside of the district, the decisions of this court are adverse to appellant’s contentions. 103 Ark. 67; 125 Id. 330; 133 Id. 390; 139 Id. 524; Id. 160.
   McCulloch, C. J.

Road Improvement District No: '10 of Pulaski County was created by special statute enacted by the General Assembly at the regular session in the year 1919, and there were subsequent amendments which do not affect the questions involved in the present litigation. Eoad Acts 1919, p. 1814.

The effect of the statute was to create six (6) subdistricts or sections, numbered, respectively one to six, which were tantamount to six separate districts, all operating under the same board of commissioners and other agencies. The statute was held to be valid by a decision of this court, Cumnock v. Alexander, 139 Ark. 153. Subdistrict No. 4 was eliminated from the statute by later enactment.

The statute provides, in substance, for the improvement in subdistrict No. 1 of the public road known as the Fort Smith road from a certain point in North Little Eoek to the Faulkner County line at Palarm Creek bridge; and also provides for the improvement of a road in the same subdistrict designated as the Eiver Loop road, branching off from the Fort Smith road and running along the established public road through Crystal Hill to a point of junction with the Fort Smith road south of Palarm Creek bridge.

There is a provision for improvement in subdistriet No. 2 of the public road known as the Baucum road, beginning where it intersects the road known as the Galloway pike and running through Baucum and over the bridge at Ashley Bayou to Scott’s pike, and thence south and west to the Lonoke County line.

There is provision for improvement in subdistrict No. 3 of the road known as the Pine Bluff road, running out East Ninth Street in Little Eoek from Main to Barber, thence south on Barber to the city limits, and thence south though Sweet Home and Wrightsville to the county line.

There is provision for improvement in subdistrict No. 5 of a road designated as the Twelfth Street pike, running out Twelfth Street from Main to the city limits, thence west to Ferndale.

There is provision for improvement in subdistrict No. 6 of a road designated as the Perryville road, running out Markham Street from Main to Victory-, thence south on Victory to Third, thence west past Forest Park, and thence northwesterly to Cross Eoads; and there-is also provision for improvement in the same subdistrict of a lateral road, running northward from the main road at a certain designated point to Eoland.

All of the roads designated were established public highways.

The statute declares that it shall be the duty of the commissioners to “construct, repair or improve the roads or parts of roads hereinbefore described, by grading, draining, and surfacing them, in such manner and with such material as the commissioners deem best for the interests of the district, with full power to construct bridges, culverts and all necessary appurtenances of said roads.” The commissioners formed plans for the several improvements to the extent of such improvement or repairs as they decided to make, and reported the plans and estimates to the county court, and the same were approved by the court. Certain changes in the routes of established roads were planned, and the county court made such changes in the manner provided by statute.

The present action was instituted in the chancery court by appellant, who is a citizen and owner of real property, to restrain the commissioners from carrying out the plans of improvement, on the alleged ground that the proposed plans constitute departures from the authority contained in the statute. The case was heard below on the pleadings, plans for the improvements, and other record evidence, and on oral testimony, and a decree was rendered dismissing the complaint for want of equity.

The basis of the several attacks on the proceedings of the commissioners are the following features of the proposed plans:

The route of the Fort Smith road is. slightly changed in two places, and there is a slight change in the route of the road designated as the Eoland lateral of the Perry-ville road; that is to say, the routes of these roads have been changed by orders of the county court since the enactment of the statute now under consideration, and the plans of the commissioners conform to the changes of routes made by the court; the improvement of the Biver Loop road in su'bdistrict No. 1 is eliminated from the plans, and likewise the improvement of that part of the road in subdistriet No. 2 from the intersection with the Baucum road south and west of the Lonoke County line, the improvement of that part of East Ninth Street in subdistrict No. 3, the improvement of that part of Twelfth Street from Gaines to Lewis, in subdistrict No. 5, and the improvement of that part of Markham and Victory Streets in su'bdistrict No. 6.

The evidence in the case shows that the proposed changes are highly expedient from a standpoint of economy and practicability. The changes in the route of the Fort Smith road were made to eliminate dangerous railroad crossings, on account of which Federal Aid funds for the district would be denied; and the changes in the Boland lateral were made to obviate steep grades. The improving of East Ninth, Markham, Victory and Twelfth Streets was eliminated because they are now paved and in a fair state of repair. The Biver Loop road is now a good graded country road, running through a sparsely settled, rough territory, and the cost of two high-priced roads in the same territory is not justified, the main Fort Smith road, to be made a hard-surface road, having been selected as a primary road by the .State Highway Commission. The road in subdistriet No. 2, running south and west to the Lonoke County line, is a macadam road in good state of repair. The Baucum road is also a macadam road somewhat out of repair, and this part of the road is to be repaired under the proposed plans, and this improvement, when completed, will make the whole of the designated road in that subdistrict a macadam road of the same quality and state of repair,

The proposal to change the routes of certain of the roads is attacked on authority of the previous decisions of this court. Pritchett v. Road Improvement District, 142 Ark. 511; Nunes v. Coyle, 148 Ark. 365. Those cases are not in point for two reasons: first, that the changes in route referred to in those cases were substantial, whilst in the present case the changes are comparatively inconsequential and do not lessen the beneficial effects on the contiguous property; and second, in those cases the districts were organized under general statutes on petitions of property owners, wherein the routes of the roads were specified, whereas, in the present instance the statute only designates the established road by name, and the changed routes still fall within the statutory description. We are of the opinion that the changes were not sufficiently material to destroy the identity of the project with the authority given in the statute.

It is next contended that the elimination of certain parts of the roads is unauthorized, and counsel for appellant relies on the decision of this court in Phillips v. Tyronza and St. Francis Road Imp. District, 145 Ark. 487. We must look to the language of the statute now under consideration, which contains the sole authority of the commissioners, and we find that different from the authority conferred by the statute dealt with in the case cited. There the statute described the road to be improved, including laterals, as a unit, and conferred no discretion concerning the portions to be improved. In the present instance the statute confers discretion on the commissioners either to construct anew or to repair the roads which were duly established highways, and such materials are to be used “as the commissioners deem best.” Now this does not require the commissioners to improve roads already sufficiently improved, or to repair roads already in a good state of repair, sufficient for the practical uses of travel. Of course the assessment of benefits will be more or less affécted by the extent and cost of the improvements or repairs and the proximity of the lands to those portions of the roads which are to he improved or repaired, bnt the statute gives the commissioners authority to exercise discretion as to the character and extent of the improvement. We do not think that the authority conferred by the statute has been exceeded.

There is one other feature of this case which needs only to be briefly mentioned. It is shown that the proposed plans contemplate the improvement of the Perry-ville road a short distance beyond the limits of the district. The cost of this extension is very little — about one hundred dollars, the evidence shows — and now, since objection is made by a property owner, it is conceded that the extension is unauthorized, and it is to be fairly inferred that the commissioners have abandoned this extension.

Decree affirmed.


text:
    Wood v. Miller.
    Opinion delivered June 26, 1922.
    1. Pleading — demurrer.—On demurrer to a complaint the facts ■ stated therein must be taken as true.
    2. Officers — right to hold over. — Where the incumbent of an office is authorized by law to hold over at the expiration of his term until his successor is elected and qualified, the period of his holding over is as much a part of the term as the term of the regular period fixed by law, and he has the legal right to protect his incumbency from one who unlawfully invades it or to sue a usurper to recover it.
    3. Officers — disqualification of state representative to hold office. — Under Const., art. 5, § 10, providing that no senator or representative shall, during the time for which he shall have been elected, be appointed or elected to any “civil office under this State,” a representative could not be elected during his term of office to the office of municipal judge in a city of the first class,' as municipal offices created by statute are civil offices under the State.
    Appeal from Jefferson 'Circuit Court, W. B. Sorrels, Judge;
    reversed.

      Beinberger £ Beinberger, for appellant.
    Appellant had the right to maintain the suit, his successor not having been elected and qualified. Acts 1917. Act 209, sec. 3 p. 1127. The period between the expiration of his term and the election and qualification of his successor is as much a part of his term as the fixed statutory period. 14 L. E. A. 858.
    Appellee was not eligible to hold the office, as his doing so would contravene art. 5, par. 10 of the Constitution.
    The office is a civil office 'under this State. Words and Phrases, Yol. 2, p. 1198, citing 102 Iowa 639; 41 Mo. 29 and 18 Sou. 157.
    Caldwell, Triplett £ Boss, Taylor £ Jones, Powell £ Alexander, and Danaher £ Danaher, for appellee.
    The office of municipal judge is not “an office under this State.” 72 Ark. 180; 72 Ark. 230.
    Appellant had no right to maintain the suit, being in the nature of quo warranto proceedings, which can only be brought by the Attorney General. 1 Ark. 279; 27 Ark. 12; 22 L. E. A. (N. S.) 810.
    Appellee, assuming to act under an election authorized by law, had color of title to the office and could not be an usurper within the meaning of the statute. 133 Ark. 519, therefore the action could not be maintained under sec. 10326, C. & M. Digest.
   McCulloch, C. J.

This is an action instituted by appellant against appellee in the circuit court of Jefferson County to recover the office of judge of the municipal court of the city of Pine Bluff. The action is founded on the statute commonly known as the usurpation statute, which reads as follows:

“Whenever a person usurps an office or franchise to which he is not entitled by law, an action by proceedings at law may be instituted against him, either by the State or the party entitled to the office or franchise, to prevent the usurper from exercising the office or franchise.” Crawford & Moses’ Digest, sec. 10326.

Appellant was elected to the office in question for a term of two years at the regular municipal election on April 6,1920, and holds over until his successor is elected and qualified.

Appellee was elected to the office at the regular municipal election on April 4,1922, and claims the office and the right of exercising the functions thereof under said election.

Appellee was duly elected at the regular election on the............day of November, 1920, as representative from Jefferson County in the General Assembly, and the contention of appellant is that appellee is ineligible to the office of municipal judge by reason of the fact that he was so elected to the office of representative and that the time for which he was elected has not expired.

There is no dispute as to the facts, for the court sustained a demurrer to the complaint, and the facts stated therein must be taken as true.

The Constitution (art. 5, § 10) reads as follows: “No senator or. representative shall, during the time for which he shall have been elected, be appointed or elected to any civil office under this State. ’ ’

The first question presented is, whether or not appellant has the right, under the facts stated, to maintain a suit challenging appellee’s right to take the office.

The usurpation statute was a part of the Civil Code of Procedure enacted in 1868, and in the case of Lambert v. Gallagher, 28 Ark. 451, this court held that the statute was sufficiently broad in it’s terms and effect to include ordinary election contests for office. Subsequently, exclusive and original jurisdiction in contested election cases for county and township offices was conferred upon county courts (Crawford & Moses’ Digest, § 3850), and this court held that the later statute amended the usurpation statute to the extent only that it relates to contested county and township offices, but that it is still in force, as construed in Lambert v. Gallagher, supra, as to contests for municipal offices where no other jurisdiction is conferred by statute. Whittaker v. Watson, 68 Ark. 555.

In the case of Wheat v. Smith, 50 Ark. 266, construing the usurpation statute, this court said: “The design of these provisions is to enlarge the remedy formerly afforded by information in the nature of quo warranto. * * * * It opens the way for the person who would have •been the relator in an action by the State under the common-law practice to institute the proceedings to test his title to an office in his own name, without leave of court, or the intervention of the State or one of her officials, as a party. * * * * it is operative in so far as it is not inconsistent with the jurisdiction conferred on the county courts.”

This is not, in fact, a contest of an election, for, as said in Wheat v. Smith, supra, there is nothing to contest concerning the result of the election. Appellee was elected, as conceded, but appellant is contesting his eligibility to hold the office, and he has the right to do so.

Where the legal incumbent of an office is authorized by law to hold over after expiration of the term until his successor is elected and qualified, the period of his holding over is as much a part of the term as the regular period fixed by law. Kimberlain v. State (Ind.), 14 L. R. A. 858. He has the legal right during that period to protect his incumbency from one who unlawfully invades it or to sue an usurper to recover it.

Counsel for appellee rely on the decision in Ferguson v. Wolchansky, 133 Ark. 516, but that case does not support'the contention. That was a contest for the office of school director, and we held that it was a county office within the meaning of the statute conferring jurisdiction on the county court. We held also, in Condren v. Gibbs, 95 Ark. 478, that a road overseer was a county officer, and that a contest for that office fell within the jurisdiction of the county court. The. case of Lucas v. Futrall, 84 Ark. 540, is also decisive of appellant’s right under the statute to bring this action.

Counsel also contend that appellant has surrendered the office to appellee, that he has abandoned the office and thereby relinquished his right to claim it. This is not so under the allegations of the complaint, which must be taken as true for the purpose of testing the sufficiency of the complaint on demurrer.

This brings us to consideration of the question whether or not appellee is eligible to the office of judge of the municipal court.

Counsel for appellee rely on the decisions of this court in Murphy v. Townsend, 72 Ark. 180, and Peterson v. Culpepper, 72 Ark. 230. In each of those cases there was involved the right of a person to hold a county office and a municipal office at the same time. The court decided in each case that there was no incompatibility in the discharge of the duties of the two offices, and that the Constitution did not prohibit it. These cases involved the application of a clause of the Constitution (art. XIX, § 6) which provides that no person “shall hold or perform the duties of more than one office in the same department at the same time.” The effect of the language used in those opinions must, of course, be confined to the question involved in the cases for decision.' We are now dealing with a provision-of the Constitution altogether different from the one quoted above. It applies only to senators and representatives in the General Assembly and provides that they shall not, during the time for which they shall have been elected, “be appointed or elected to any civil office under this State. ’ ’

. The purpose of this provision of the Constitution is plain. In many of the States the Constitution merely prohibits legislative representatives, during their terms, from holding an office created during that term, or where the salary of the office is increased during the term. But the language of our Constitution is broader. There is no uncertainty about what constitutes a civil office within the meaning of the Constitution. Our own decisions define it. Lucas v. Futrall, supra. “A civil office is a grant and possession of the sovereign power. ’ ’ State v. Spaulding, 102 Iowa, 639.

The Supreme Court of Mississippi, in the case of Shelby v. Alcorn, 36 Miss. 273, held that under a provision of the Constitution identical with our constitutional provision on that subject, a member of the Legislature could not, during 'his term, hold the office of levee inspector, and in the opinion said: “It follows, hence, that whether an office has been created by the Constitution itself, or by statute enacted pursuant to its provisions, the incumbent, as a component member of one of the bodies of the magistracy, is vested with a portion of the power of the government, whether the portion of the power of the government which he is thus entitled to exercise is legislative, judicial, or executive in its character.”

Mr. Mechem in his work on Public Officers (§ 24) says: “Any officer who holds his appointment under the government * * * is a civil officer.”

The words “under this State,” as used in the Constitution, mean under the laws of this State or by virtue of or in conformity with the authority conferred by the State as sovereign. It embraces all offices created by the laws of the State as contradistinguished from other authority. Municipal offices are created by the statutes of the State and are therefore civil offices “under this State. ’ ’

Our conclusion is that appellee is ineligible to hold the office in controversy.

The judgment of the circuit court is therefore reversed and the cause is remanded, with directions to overrule the demurrer, and for further proceedings.


author: Wood, J.

text:
    Neal v. State.
    Opinion delivered June 26, 1922.
    1. Intoxicating liquors — indictment—duplicity.—An indictment under Acts 1921, No. -324, § 1, charging that defendant did unlawfully make mash, wort or wash, held to charge but one offense.
    2. Intoxicating liquors — language of statute. — Acts 1921, No. 324, forbidding the making of mash, wort or wash “fit for” distillation of intoxicating liquors, meant that the wash was intended for use in making alcoholic liquors, and not merely a mash which is adapted to or capable of being used for that purpose.
    3. Intoxicating liquors — sufficiency of evidence. — In a prosecution for unlawfully manufacturing intoxicating liquors, evidence held to sustain a verdict of guilty.
    Appeal from Lafayette Circuit Court, George R. Haynie, Judge;
    affirmed.
    No brief for appellant.

      J. S. Utley, Attorney General, Elbert Godwin and Wm. T. Hammock, Assistants, for appellee.
   Wood, J.

The indictment on which the appellant was tried and convicted,.omitting* formal parts, is as follows:

“The grand jury of Lafayette County, in the name and by the authority of the State of Arkansas, accuse Walter Neal of the crime of manufacturing, making and fermenting mash, committed as follows, to-wit: The said Walter Neal, in the county and State aforesaid, on the 20th day of February, A. D. 1922, did unlawfully, wilfully and feloniously make and ferment 25 gallons of mash, wort or wash fit for arid to be used in the distillation, making and manufacturing of alcoholic, vinous, malt, spirituous and fermented liquors; said Walter Neal not being a person authorized under the laws of the United States to manufacture sweet eider, vinegar, nonalcoholic beverages or spirits for other than beverage purposes,” etc.

The appellant demurred to the indictment on the ground that it charged more than one offense. The court overruled the demurrer, and the appellant duly excepted to the ruling.

The testimony on behalf of the State tended to prove that the mayor and other officers of the town of Stamps, Arkansas, suspected that the appellant was engaged in violating the liquor law and made a raid upon his home on the night of August 20, 1921, with a view of discovering evidences thereof, if. possible. In passing through the main room of appellant’s dwelling they smelled whiskey and mash. Just on the outside of the door on a rack they found a 16-gallon keg running .over with mash. They followed evidences of where the mash had been dripped along until they found where it had been poured out over the yard fence. The mash smelled like it was about ready to run. It contained chops or shorts, and had been sweetened. They found in the house a keg and a jar which had contained shorts and chops. The keg and jar were still damp, and there was a great pile of chops where appellant had emptied the keg of mash. The mash found in the jar and keg in the house was the same kind as that found poured out on the weeds. The officers had been informed that a still was buried in the yard. They found a hole in the yard under a board or plank walk. From the looks of the mash that had been poured out, and the container, there must have been 20 or 25 gallons of the mash. The officers asked the appellant how he came to have the chops there and he said that he was saving it for Brother Somebody’s hogs. The appellant denied that he had poured out the chops over the back fence, which was about fifty feet from his back door. The officers found fruit jars and bottles about the size of Wine of Cardui bottles, which contained a small quantity of whiskey. This all happened in Lafayette County.

The appellant was not present when the search of his premises was made. Witnesses were positive that whiskey had been in the jars found in appellant’s residence. The only whiskey found on his place was that found in the container mentioned. The hole found in his yard under the plank walk was about two feet deep and a foot or fourteen inches wide, There was testimony to the effect that the stuff found in the jar and keg at appellant’s residence was the same as that poured out over the back fence and the same kind as that found by the officers at other places where whiskey was being made. The officers didn’t find any still, but the hole at the back of appellant’s house looked like a still or oil can had been buried in it.

One witness testified that he had been a farmer and had fed hogs, but never fed his hogs on high-class stuff ■made of shorts, sugar and meal. He tasted the mash and knew that it had been sweetened with sugar. The State also introduced a certificate of the internal revenue collector to the effect that the records of his office did not show that the appellant was authorized under the laws of the United States to make and ferment mash, wort, or wash for the distillation otf spirits, alcoholic, vinous, malt, spirituous .and fermented liquors.

The appellant testified in his own behalf, and his testimony and the testimony of other witnesses tended to ■prove that he was not guilty of the crime charged. The court read to the jury sec. 1 of act 324 of the Acts of 1921, as follows: “No mash, wort, or wash fit for distillation or for the manufacture of beer, wine, distilled spirits or other alcoholic liquors shall be made or fermented by any person other than a person duly authorized under the laws of the United States to manufacture sweet cider, vinegar, non-alcoholic beverages, or spirits for other than beverage purposes.”

The court also read to the jury the statute prescribing the punishment for violation of the above act, and then instructed the jury as follows: “So in this case, gentlemen, if you find from the testimony, beyond a reasonable doubt, that this defendant did make or ferment mash — any quantity thereof, as alleged in the indictment — of mash, wort or wash fit for and to be used in the distillation, making and manufacturing of alcoholic, vinous, malt, spirituous or fermented liquors, and that the defendant was not a person authorized under the laws of the United States to manufacture sweet cider, vinegar, non-alcoholic ¡beverages, or spirits for other than beverages, you will find him guilty and assess his punishment at imprisonment in the penitentiary for some period of time not less than one or more than five years. If you entertain a reasonable doubt growing out of the evidence, you will give him the benefit of that doubt and acquit him.”

The appellant asked the court to instruct the jury as follows: “The jury is instructed that, before they can convict the defendant of the crime of making and fermenting mash, they must find beyond a reasonable doubt that defendant made and fermented mash fit for distillation of intoxicating liquors and that he intended same for distillation of intoxicating liquors.”.

The court refused this prayer, and appellant excepted to the ruling.

1. The indictment follows the language of the statute and is sufficient. Wolfe v. State, 107 Ark. 33, and cases there cited. Webster gives the definition of “mash” when used in brewing and distilling as follows: “Crushed malt, or meal of rye, wheat, corn, etc., steeped and stirred in hot water to form wort.” “Wort,” says he, is “essentially a dilute solution of sugar, which by fermenting produces alcohol and carbon dioxide;” “the sweet infusion of malt which ferments and forms beer; hence any similar liquid in incipient fermentation.” “Wash,” he defines as “a fermented wort from which spirit is distilled.” It is clear therefore that the Legislature used these terms synonymously, and when they are used in an indictment in precisely the language of the statute they do not charge separate and distinct offenses, but only one offense.

2. The court did not err in its instructions. . These instructions conform to the law as announced by this court in two recent cases. See Logan v. State, 150 Ark. 486, 490, 491; Burns v. State, ante p. 215. In these cases we held: “The phrase ‘fit for distillation,’ contained in the statute, as meaning that the wash was intended for use in making alcoholic liquors, and not as merely meaning a mash which is adapted to, or capable of, being used for that purpose.”

The testimony on behalf of the State was sufficient to sustain the verdict. Under the evidence the issue of guilt or innocence of the crime charged was one of fact for the jury. The record presents no error in the rulings of the trial- court. The judgment is therefore affirmed.