text:
    Austin Western Road Machinery Company v. Grant County.
    Opinion delivered May 5, 1924.
    1. Principal and agent — holding out as agent. — Where a general authority to do an act is alleged, and the plaintiff or defendant relies on the other’s having held out a third person as his agent, other instances of his having treated the person as his agent for such an act are admissible to show a general holding out of that person as agent.
    2. Principal and agent — authority to collect. — Where plaintiff specifically authorized an agent to collect and remit funds due from a county on a certain date, and from time to time thereafter allowed him to collect and remit amounts due from the county, held that such acts constituted such a course of dealing as warranted a finding that the agent had implied or apparent authority to collect the warrants involved in the suit.
    Appeal from Grant Circuit Court; Thomas E. Toler, Judge;
    affirmed.
    STATEMENT OP PACTS.
    Austin Western Road Machinery Company filed its account, duly verified, in the county court of Grant County, for certain road machinery sold by it to said county. The claim was disallowed, and the claimant appealed to the circuit court. There the Austin Western Eoad Machinery Company of Chicago, Illinois, introduced in evidence its itemized account of the various articles of road machinery sold by it to Grant County. The account commenced on the 5th day of May, 1911, and the last item is of the date of September 29, 1915.
    Grant County introduced in evidence the register of road warrants on file in the county clerk’s office, showing the warrants which had been issued on claims allowed in favor of the plaintiff by the county court. These allowances cover all the items in the plaintiff’s account, and the warrants issued on them were delivered to É. E. McCool, who was then county treasurer, and who gave his receipt to the county clerk for said warrants.
    The defendant also introduced in evidence a letter dated March 24,1912, from the plaintiff to E. E. McCool, county treasurer. The body of the letter is as follows:
    “Dear sir: We have just written to Judge West about our unpaid account against Grant County, asking that he give it his attention during the April term of court, so that payment of it may be authorized.
    “If any funds have been placed at your disposal to cover any of our claims against the county, please send them to us, at your early convenience, using the stamped envelope which you will find inclosed.
    “Thanking you in advance for giving the matter your attention, we are,
    “Yours very truly.”
    The case was tried before the circuit court sitting as a jury. The court found in'favor of the defendant, and, from the judgment rendered, the plaintiff has duly prosecuted an appeal to this court.

      Emerson & Donha/>n, for appellant.
    McCool was not the agent of appellant. The nature of the letter to him was merely an inquiry, and by no means of reasoning could constitute him an agent. Payment to an unauthorized agent is not binding upon the principal. 76 Ark. 472; 98 Ark. 370.

      D. E. Waddell and W. A. TJtley, for appellee.
    Through a long’ period of time appellant had ratified the acts of McCool in receiving warrants for it, and it is now. too late for them to deny that he was their agent. The creation of an agent may be either express or implied. Appellant’s remedy would be against McCool. 21 R. C. L. § 34, p. 854. See also 152 Ark. 120.
   Hart, J.,

(after stating the facts). The decision of the circuit court was based upon a holding that, in the light of all the circumstances surrounding the parties and their business relationship to each other, McCool had the apparent authority to receive the warrants issued in favor of the plaintiff on claims against the county, and to collect the same for the plaintiff.

Where a general authority to clo an act is alleged, and the plaintiff or defendant relies on the other’s having held out a third person as his agent, other instances of his having treated the person as his agent for such an act are receivable to show a general holding out of that person as agent. Wigmore on Evidence, vol. 1, 2d ed., § 377.

The principle of the rule as stated by Mr. Wigmore is that the instances must be numerous enough, and have occurred under conditions so similar, as to indicate a system or plan of doing that particular thing under similar circumstances; and that the only question in administering the rule is whether the instances produced have any real probative value to show such system, plan( or habit.

In the application of the rule to the case at bar we are of the opinion that the attending circumstances warranted the circuit court in finding an implied authority derived from a course of dealing, from the number of warrants which the plaintiff assented to McCool’s collecting for it.

The evidence shows a course of dealing between the plaintiff and Grant County for a period of time from May 5, 1911, to September 29, 1915. From time to time warrants were issued by the county for machinery purchased' by it from the plaintiff. By its letter of March 24, 1912, the plaintiff specifically authorized McCool to collect and remit to it the funds due it upon claims against the county. From time to time, after this date, it allowed McCool to collect similar warrants issued, in its favor and to remit the amounts thereof to it. These acts constituted such a plan or course of dealing on its part as warranted the circuit court in finding that McCool had implied authority to collect the warrants involved in this suit. C. A. Reese & Co. v. Kirk, 152 Ark. 120. There is another ground on which the judgment might be sustained, but the views we have expressed render it unnecessary to consider it.

It follows that the judgment must be affirmed.


source: Caselaw Access Project

author: Humphreys, J.

license: Public Domain

text:
    Thomas D. Murphy Company v. Russell.
    Opinion delivered May 5, 1924.
    Sales — breach op contract — damages.—Where a buyer contracted for advertising calendars, 'and agreed not to countermand the order, his notification after the calendars were manufactured to hold the shipment until the seller heard from him, and that he would not accept shipment otherwise, constituted a breach of contract, entitling the seller to damages.
    Appeal from Phillips Circuit Court; E. D. Robert? son, Judge;
    reversed.

      A. D. Whitehead, for appellant.
    The undisputed testimony showed, and appellee admitted, that he breached the contract. Appellant therefore, not having consented to the breach, was entitled to treat the contract as rescinded, and to bring suit for the breach. 92 Ark. Ill; 107 Ark. 106; 93 Ark. 453. The failure of one party to a contract to comply with its terms releases the other from compliance with it. 65 Ark. 447; 93 Ark. 453; 38.Ark. 174; 26 Ark. 309; 67 Ark. 156; A substantial breach by one party to a contract authorizes the other to treat it as terminated and to bring suit for the balance -due under the contract. 98 Ark. 160; 78 Ark. 336. Appellee admitted the breach. The facts undisputed, it was a question -of law for the court, and it should have directed a verdict for the plaintiff. 63 Ark. 335; 104 Ark. 267; 89 Ark. 29.

      John I. Moore, Jr., for appellee.
    Requests for instructions not based on evidence are properly refused. 141 Ark. 464; 147 Ark. 598. The jury are the sole judges of questions of fact. An instruction which assumes as proved a fact required to be found by the jury is erroneous. 18 Ark. 521; 20 Ark. 170; 23 Ark. 411; 36 Ark. 117; 93 Ark. 29. The court is without power to direct a verdict for either party when the evidence is conflicting. 39 Ark. 413; Id. 419; 36 Ark. 451; 71 Ark. 305; 105 Ark. 213; 101 Ark. 376.
   Humphreys, J.

This suit was brought by appellant against appellee in the municipal court of the city of Helena to recover $105 damages for an alleged breach of contract by refusing to accept 1,200 calendars which it manufactured for .said appellee. It was alleged, in substance, in the complaint that appellee entered into a written contract with appellant wherein he agreed to purchase 1,200 calendars, with the following advertisement written thereon: “Helena Market, 409 Elm Street, Phone No. -675, Arkansas. Cleanliness — Quality;” that it agreed to mail out the calendars at the rate of 100 per month, as per mail order list to be furnished by appellee, on or before August 1, 1920, and, if mail order list was not furnished, to be shipped directly to appellee; .that it manufactured the calendars, and was ready to ship them, in accordance with the terms of the contract, when appellee directed it not to mail’ or ship them, thereby breaching the contract, to the damage of appellant in the sum of $105.

No answer was filed, as written pleadings were not required in the municipal court. The allegations of the complaint were treated as denied, and the cause proceeded to a hearing and judgment, from which an appeal was duly prosecuted to the circuit court, where the cause was tried de novo, resulting in a judgment dismissing appellant’s complaint, from which is this appeal.

The facts are undisputed. The alleged contract was executed by the parties, and contained a provision that appellee could not countermand the order. The calendars were manufactured before any attempt was made by appellee to cancel the contract. Three letters appear in the record relating to the cancellation of the contract and the shipment of the calendars. They are as follows:

“Helena, Ark., Aug. 3, 1920.
“The Thomas D. Murphy Co.,
“Red Oak, Iowa.
‘ ‘ Gentlemen: I am inclosing your mailing list which you sent me some time ago for the reason that I will be unable to use your calendars. Having a deal pending for the sale of 'my place, the calendars will be unnecessary. I will speak to the buyer of the place and maybe he will be able to give you a similar order. Thanking you for your attention, I am, yours truly, S. H. Russell.”
“* * * August 10,1920.
“Helena Market; 409 Elm St.
“Helena, Ark.
“Gentlemen: We have your esteemed favor of the 3rd inst., in which you request that we cancel your calendar order, inasmuch as you are about to close out your business. However, we regret that this action will be impossible, since the calendars are completed and awaiting your disposal in our factory.
“Upon referring to the order, we note that the advertising material will undoubtedly be just as suitable for the new man as for you. We will, of course, expect to make delivery of the calendars in accordance with the contract, in view of the fact that the goods are printed. We will hold up the order in our factory until the 20th of the month, and, if we have no instructions from you regarding the mailing out of the order by that time, we will ship the goods direct, as we wish to make certain that they arrive in proper season for distribution. We .are sure that you will be able to place the order with your successor, and thus relieve yourself of the calendars.
“Regretting that we could not meet with your wishes, we are, yours very truly, The Thomas D. Murphy Co.”
“Helena, Ark, Aug. 14,1920.
“The Thomas D. Murphy Co.
“Red Oak, Iowa.
“Gentlemen: I have your letter of the 10th inst., in which you state that the goods which I ordered from you is already printed'.
“I think that I gave ample notice for cancellation of the order, but, in view of the fact that the goods have been made ready for shipment, I ask you to hold the shipment until you hear further from me. Do not ship on the 20th, as per your letter, as I will not accept under that condition. Yours very truly, S. H. Russell.”

The calendars were not mailed out, shipped to, or received by appellee, because he requested appellant not to mail them until further notice, and that, if shipped to him on the 20th, as indicated in its letter, he would not receive them.

At the conclusion of the testimony appellant requested the court to instruct a verdict for it, and the court erred in not doing so. The undisputed evidence showed that a binding contract had been entered into by and between the parties, and that appellee breached it by instructing appellant not to mail or ship the calendars. This relieved appellant from mailing or shipping them, and entitled him. to damages for the breach.

The judgment dismissing his complaint will therefore be reversed, and judgment entered here in favor of appellant for $105 against appellee and his bondsmen.


text:
    Brooks v. Burrow.
    Opinion delivered May 5, 1924.
    Mortgages — foreclosure—itemized statement. — Where a mortgagor offered to redeem according to an agreement made prior to foreclosure but demanded an itemized statement which was promised but not furnished until after the mortgagor brought suit to enforce the agreement, held that the mortgagor’s failure, to challenge the statement and tender the amount admitted to be due called for a judgment for the mortgagee.
    Appeal from Lincoln Chancery• Court; John M. Elliott, -Chancellor;
    affirmed.

      Rogers, Barter <& Henry and Coulter, McHaney <& Coulter, for appellant.
    1. The consideration for the agreement forming the basis of this suit was that appellant would refrain from interposing any defense in the foreclosure suit in order that the -cause might be readily disposed of, to the end that appellee might use the property -as -security for a loan. This afforded sufficient consideration. 27 Ark. 407 ; 31 Ark. 634; 106 Ark. 4, and cases cited.
    2. . Appellant has not forfeited his right to enforce the agreement. It is conceded that no absolute or technical tender was made, but that was excused by appellee’s failure to furnish a statement of the account, whereby he made it impossible for appellant to make an absolute tender-. Appellant was under no necessity to make payment when the statement was actually furnished after the suit was brought, which showed a total amount of approximately $25,000 more than was due. 19 Ark. 39; 50 Ark. 322.

      Owens S Ehrman, for appellee.
    .Appellant not only did not tender the money during the time granted him, but stated positively that he was unable to raise it, and would have to lose the place. He made no demand for a statement until after the time had expired. Assuming that there were items in the account when it was furnished which were objectionable, it was possible for appellant to have tendered some amount under the claim that that was all that was due. There is no'such part performance or proof of a contract to convey here as will justify a court of equity to decree a specific perf ormance. 109 Ark. 310 ; 63 Ark. 100. Time is of the essence of every option to purchase real estate, and appellant, having failed to exercise his right to repurchase prior to January 1, 1922, has lost that right. 82 Ark. 573; 135 Ark. 384.
   Humphreys, J.

Appellant instituted suit on March 21, 1922, against appellee, in the chancery court of Lincoln County, to enforce the specific performance of an agreement between them for appellant to redeem certain lands and personal property in said county from a decree of foreclosure and sale, obtained by appellee in said court, and for an accounting between the parties.

Appellee filed an answer, denying that appellant had complied with the requirements of the contract for redemption and thereby placed himself in a position to demand an accounting and a specific performance of the contract.

On January 18,1923, the cause was submitted by the court on the pleadings and testimony, which resulted in the dismissal of appellant’s bill for want of equity, from which is this appeal.

The following undisputed facts are reflected by the record: three mortgages were executed by appellant upon a plantation owned by him in Lincoln County to secure large sums of money which he had borrowed. The first mortgage was to W. C. Hudson, trustee for C. H. Triplett, to secure $24,000. The second and third mortgages were executed to appellee to secure $35,000. Triplett instituted suit to foreclose his mortgage, and made .appellee a.party defendant thereto. Appellee set up his .mortgages, and asked that all three mortgages be foreclosed. The decree of foreclosure and order of sale was rendered on April 4, 1921, and on May 6, 1921, all the property, both real and personal, was sold pursuant to the decree, and was purchased at the sale by appellee. Prior to the rendition of the decree and sale, appellant and appellee entered into an agreement whereby appellant should have a right to redeem the property from the sale.

The record reflects a conflict in the testimony as to the amount to be paid, the time within which it should be paid, and whether an offer, in good faith, was ever made by appellant to appellee to redeem the property from the sale.

Appellant testified that he was given until January 5, 1922, to redeem the property from the sale by paying the amount of the judgment and costs, with accumulated interest, after deducting the value of the cotton on hand and the net value of the 1921 crop; that, in the fall of 1921, he made several efforts to get a statement of the amount he owed, but failed; that, about the middle of December, 1921, he got a verbal statement from Grover Owens, attorney for appellee, that $70,000 would redeem the property; that he raised that amount, and notified appellee, but demanded an itemized1 statement before paying same over; that appellee failed to make him such a statement; that he went to him on December 31, 1921, and demanded an itemized statement of the exact amount due, so that he could pay same and redeem the property ; that appellee advised him to return Monday morning, January 2, 1922; that he returned on Monday morning, and was informed the time for redemption had expired, and that he told appellee he had until the fifth of the month to redeem under the contract, and that the time would never expire until he was furnished with an itemized statement of the amount due; that, on January 3, he was furnished a three-line statement that $79,000 was due, and was directed to go to the bookkeeper if he wanted a complete, itemized statement; that he went to the bookkeeper, and was told he could not get it up for a week; that an itemized statement was not furnished until April 10,1922, nearly a month after this suit was brought.

Lewis Rhoton, attorney for appellant, testified that, on January 2, he notified Grover T. Owens that appellant had informed him that he had made financial arrangements to redeem the property, and asked1 that a statement of the amount due be furnished him; that, on January 3, Mr. Owens brought Mm a three-line statement -showing that $79,000 was due, which he gave appellant; that Mr. Owens stated there would be no effort made to deprive appellant of his right to redeem the property until an itemized statement was furnished.

G-rover T. Owens testified that, at the time of the rendition of the decree of foreclosure, it was agreed, in the presence of the court, that appellee would buy the property at the sale, and permit appellant to repurchase it on or before January 1, 1922, by paying the mortgage judgment, expenses of the foreclosure and sale, the interest which would accrue, and all expenses incurred in making the 1921'crop, less the net price received for the .crop; that appellant told him on December 31, 1921, and several times prior thereto, that he had been unable to raise the money to purchase the property; that he never informed appellant at any time that $70,000 would' redeem the property, and never had Ms client make the statement during that year to appellant, because none was demanded; that Lewis Bhoton, attorney for appellant, telephoned him on January 2 that appellant had informed Mm he was ready to redeem the property, and asked for a statement; that, on January 3, he saw Mr. Bhoton, and explained to Mm that appellant’s time within which to purchase the property had expired, and appellee had leased the plantation to J. O. Fant, but that, if appellant would assume the lease,-he could purchase the plantation and personal property upon the same basis as before; that appellant was present, and stated that he had not raised the money, but could get it in ten days; that he asked him to deposit $10,000 to show good faith, or to pay the amount he admitted was due and they would arbitrate the amount that was in dispute; that appellant refused to deposit or to pay any amount; th-at he gave Mr. Bhoton a three-line statement showing that appellant owed appellee $79,000, and told him he would have appellee furnish an itemized statement later.

S. L. Ehrman testified, corroborating Mr. Owens in the main.

H. L. Gregg, who was appellee’s bookkeeper, testified to the amount due, and attached an itemized statement to his deposition, showing that appellee was out altogether on the property $79,125.24, exclusive of the interest.

Appellee testified that appellant was given until January 1, 1922, to purchase the property; that he was. and had been willing at all times to resell him the lands within the time specified; that, on the last day of December, appellee told him he could not get the money to purchase the land; that, when he took the plantation over, after purchasing same at the judicial sale, the land was in very bad condition; that he spent no money on it except what was absolutely necessary in order to place it in cultivation.

Appellant’s contention for a reversal of the decree dismissing his bill is that he offered to comply with the redemption contract when presented an itemized statement showing the correct amount due appellee, and that nppellee never presented him with such a statement. Treating the time for redemption as waived by the conduct of appellee, and a money tender as waived by not demanding an actual tender, it was certainly incumbent upon appellant to tender the amount he knew he owed appellee, into court, when appellee furnished him an itemized statement on April 10, 1922. To say the least of it, when appellee furnished him with an itemized statement of the account he should have challenged' the objectionable items and tendered into court the amount of the unobjectionable items. Instead of doing this, he contented himself with asserting, in a general way, that the statement was in excess of the amount he owed, without assailing any particular item of the statement and without tendering any amount into court. Under appellant’s own statement it became his duty, when presented with the itemized statement, to state to the court what lie owed, and tender same, and1 request permission to litigate such items as he controverted.

Under this view it became unnecessary to determine the issues of fact presented by the conflicting testimony.

No error appearing, the decree is affirmed.


text:
    Bates v. State.
    Opinion delivered May 5, 1924.
    Criminal law — self-crimination.—Under Const., art. 2, § 8, providing that no person shall “be compelled in any criminal case to be a witness against himself,” an election clerk under indictment for making a false certificate of election returns cannot be compelled to testify against election judges under indictment for making a false count, the two offenses being different, so that the clerk is not within the protection of Crawford & Moses’ Dig., § 3122, precluding the use of testimony given by a witness against himself in another prosecution for the same offense.
    Certiorari to Scott Circuit Court; John E. Tatum, Judge;
    reversed.

      Bates $ Duncan and Evans & Evans, for petitioners.
    Any testimony given by the witnesses in the case on trial which might tend to show that they and the judges made a false count or summary of the votes cast in the primary election would also tend to incriminate them in the other case then pending against them, wherein they were charged with knowingly and fraudulently making a false certificate of the votes cast at this primary election. They were therefore within their constitutional rights in refusing to make the full disclosures required by the court. They were not in contempt of court for refusing to make such disclosures, and their counsel were not in contempt for informing them in open court -of their constitutional right and privilege. Const. 1874, art. 2, § 8; 67 Ark. 163; 142 U. S. 547, 35 L. ed. 1110; 115 Ark. 387; 6 B. C. L. 497, § 10, tit. “Contempt”; M 498; 37 Fla. 1, 19 So. 652, 32 L. R. A. 133; 77 N. E. 276; 144 N. W. 266, 49 L. R. A. (N. S.) 826; 8 Wyo. 392, 58 Pac. 411, 49 L. R. A. 831; 7 H. (N. J.) 79, 21 Am. Dec. 52; 174 Mass. 287, 75 A. S. R. 316, note; 13 Ark. 307; 14 Ark. 539; 15 Ark 624; 145 Ark. 415.

      J. 8. Utley, Attorney General, John L. Garter, Wm. T. Hammock, Harden Moose and J. 8. Abercrombie, Assistants, for respondent.
    After these witnesses had been advised by the court that what they should testify to could not and would not be used against them, they were clearly in contempt of court in persisting in their refusal to testify. C. & M. Dig., § 3122; 3 Enc. of Evidence, 493B; 2 Rob. (N. Y.) 697;'78 Ark. 262, 266; 148 Ark. 335; 153 Ark. 497; 149 Ark. 1. As to the right of counsel to advise a witness not to testify, see 3 Enc. of Evidence, 493C, and footnote 30.
   Humphreys, J.

Petitioners, S. M. Roope and William J. Pittman, were adjudged' in contempt of the circuit court of Scott County for refusing to testify, under advice of their counsel, Jeptha H. Evans and William A. Bates, in the trial of the case of the State of Arkansas against Alf Whisenkunt, J. B. Smith and Claud Young, who were charged with the crime of making a false and fraudulent count of the ballots cast at precinct number one of Blansett Township, while acting in capacity of judges in the Democratic primary election on August 8, 1922, and, as punishment therefor, were fined $50 and imprisoned ten days each. Petitioners, Jeptha H. Evans and William A. Bates, were also adjudged in contempt of said court for advising their clients not to testify in said court, and, as punishment therefor, were fined the sum of- $100 each. The proceedings in contempt against the several petitioners were consolidated for the purposes of review, and the judgments and records upon which same were based have been brought to this court upon certiorari for that purpose."

The'record reflects the following facts: Alf Whisenhunt, J. B. Smith and Claud Young 'were jointly indicted in said court, in two separate indictments, for the separate offenses of falsely and fraudulently making a false count of the ballots cast at precinct number one of Blansett Township, in said county, while acting in the capacity of judges in the Democratic primary election of August 8, 1922, and for falsely and fraudulently certifying the returns of said election to the Democratic central committee of said county. Petitioners, S. M. Roope and William Pittman, were also jointly indicted in said court in two separate indictments for the same separate offenses as the judges, while acting in the capacity of clerks in said election.- The firms of Bates & Duncan and Evans & Evans were employed to defend the judges and clerks on the charges against them. The judges were placed upon trial under the indictment for making a false count of the ballots, and the clerks, S. M. Roope and William J. Pittman, were sworn and introduced as witnesses in the case. When they were called upon to testify against the judges, they refused to do so, on advice of their attorneys, Jeptha H. Evans and William A. Bates, ■claiming exemption from testifying, under § 8, art. 2, of the Constitution of the" State of Arkansas. Thereupon the court promised that, if they testified to any matters which would tend to incriminate them upon any charges growing out of the transaction, he would not permit such testimony to be used against them in any prosecution therefor.

The petitioners insist upon a reversal of the judgments rendered against them for contempt on the ground that it was unlawful to require them to testify, as their testimony would tend to incriminate them on the charge of falsely and fraudulently certifying the returns of the election, for which an indictment -wns pending against them. In support of their contention they rely upon the following provision of § 8, art. 2, of the Constitution of the State: “Nor shall any person be compelled in any criminal case to be a witness against himself.”

Learned attorneys for the State, insist that the testimony of the witnesses could not have been used against them for any offenses growing out of the transaction, .and, for that reason, it was lawful to require them to testify, and to impose penalties upon them for failure to do so, and upon their attorneys for advising them not to testify. In support of their contention they rely upon § 3122 of Crawford & Moses’ Digest, which is as follows:

“In all cases where two or more persons are jointly or otherwise concerned in the commission of any crime or misdemeanor, either of such persons may be sworn as a witness in relation to such crime or misdemeanor; but the testimony given by such witnesses shall in no instance be used against him in any criminal prosecution for the same offense.”

Section 8 of art. 2 of the Constitution and § 3122 of Crawford & Moses’Digest were before this court for construction and application in the case of State v. Bach Liquor Co., 67 Ark. 163. Relative to the constitutional prohibition, the court ruled that, independent of the statute, its effect is to prevent any one from being compelled to give testimony in a criminal ease which could be used to convict him of a crime. Relative to the protection extended by the statute, the court ruled that the protection was limited to the. same offense with which the defendant was accused and being tried, and in which the witnesses participated and were sworn to testify, but that the statute extended no protection against the use of the witness’ testimony in other prosecutions.

Under the rule thus announced it would be a violation of the constitutional prohibition to require a witness to make disclosures which might be used to convict him of an offense different from the one on which .the accused was being tried. This is exactly what was attempted in the instant ease. The court ordered the witnesses, S. M. Roope and William J. Pittman, to testify relative to the false counting of the ballots participated in by the judges of the election and themselves, upon which charges the judges were then being tried. The witnesses refused to make the disclosures, upon the ground1 that their testimony might be used to convict them of the crime of making a false certificate of the returns of the election, for which they had been indicted. While the statute would have protected them from the use-of their testimony upon the trial of the charge pending against them for making a false count of the votes, that being the same offense for which the defendants were being tried, it would not have protected them from the use of their testimony in a prosecution for the separate and distinct crime of falsely certifying the votes for which they had been indicted. Proof that the judges and clerks of the election had made a false and fraudulent count of the votes would have been a strong circumstance tending to show that they made a false return of the votes cast at the election. The order compelling them to testify was an invasion of their constitutional rights.

On account of the error indicated the several judgments for contempt are quashed, and the proceedings therein are dismissed.


author: Smith, J.

text:
    Morning Star Mining Company v. Bennett.
    Opinion delivered May 5, 1924.
    1. Perpetuities — contract to sell real estate. — A contract authorizing an agent to sell mining properties is not void as creating a perpetuity because no time limit was fixed for performance, since the agent must proceed within a reasonable time to effect a sale.
    2. Contracts — mutuality.—A contract authorizing an agent to sell mining properties is not void as being unilateral or without consideration where it contemplated that the agent should effect a sale at her own expense, and she incurred considerable expense in attempting a sale, and earnest money, deposited by prospective buyers secured by her efforts, was appropriated by the owners.
    3. Brokers — fraud.—Evidence held to sustain a finding that a contract authorizing an agent to sell mining properties was not procured by fraud.
    4. Corporations — authority op manager to sell properties. — The general manager of a mining corporation has no implied authority to bind it by a sale of its physical properties.
    5. Brokers — validity of contract to sell property. — A contract by which the general manager of a mining corporation, without authority, impowered a broker to sell the property of the corporation and of others, is void, and will be canceled as a cloud upon the title.
    6. Brokers — reasonable time to effect sale. — An agent to procure a purchaser of land was not afforded a reasonable time in which to dispose of mining properties placed in her hands for sale where, shortly after her contract was entered into, part of the properties were sold, and suit was brought to cancel her contract.
    7. Brokers — -breach of contract — damages.—Before an agent authorized to sell mining properties can recover damages for refusing to permit her to make 'the sale, she must show that she could have made a sale by which she would have earned a commission.
    8. Pleading — amendment to conform to proof. — Where pleadings are insufficient to raise issues made by testimony admitted without abjection, they will be treated on appeal as amended to conform to the proof.
    Appeal from Marion Chancery Court; Ben F. Mc-Mahan, Chancellor;
    reversed in part.

      Jewell H. Black and Coleman, Robinson & House, for appellant.
    Chase had no authority to execute the contracts on. hehalf of appellant. Such contracts are not within the real or implied powers of even the directors of a corporation, nor within those of a majority of the stockholders in all circumstances (14 C. J., Corporations, § 1323), and not within the power of an officer, in the absence of proper authority from stockholders. • 84 Ark. 444; 79 Ark. 113; 70 Ark. 232. The burden of establishing the authority of an agent is upon the party asserting it. 93 Ark. 600; 101 Ark. 68; 103 Ark. 72. The declarations of the agent are not admissible to establish his agency. 31 Ark. 212. One does not acquire the authority to make such contract because he may own stock or a majority thereof. 14 A. C. J., Oorp., § 1842.

      Floyd £ Floyd, for appellee.
    The contract was not void for want of consideration, as a -consideration was recited. 6 R. C. L., p. 657, par. 64; Id. p. 678, par. 85-86; 10 S. D. 611. As to what constitutes a consideration, see 9 Cyc. 311 (D); 21 Ark. 249. Inadequacy of consideration does not affect the contract. A. L. R. vol. 3, p. 353; 6 R. C. L. p. 652, par. 66; 9 Cyc. 365; 33 Ark. 97; 31 Ark. 631. There was no fraud in procuring the contract. Fraud as- a defense must be proved. 12 R. C. L. p. 424, par. 172; 63 Ark. 16; 77 Ark. 351. The contract is not unilateral and void under the following authorities: 6 R. C. L. p. 687, par. 74; Id', p. 676, § 84; 9 Cyc. p. 308 (IY); 24 A. L. R. p. 1530; 94 Ark. 9; 40 Minn. 497. The contract is not null and void as attempting to create a perpetuity. 21 R. C. L. p. 287, par. 9; 3 Ark. 147; 74 Ark. 104; 74 Ark. 545; 6 R. C. L. p. 646, par. 283; 24 A. L. R. 1537 (case p. 1530); 193 Mass. 11; 6 L. R. A. (N. S.) 865, and note. The contentions of appellant that Chase had no authority to make the contract, iand that there was no breach by the appellant mining company, were not raised in the court below, and cannot be raised now. 71 Ark. 242; 72 Ark. 539; 74 Ark. 551; 77 Ark. 27; 94 Ark. 390; 80 Ark. 245. Authority may be implied from the conduct of an officer of a corporation and the acquiescence of the directors, and third persons are protected against irregularities of which they have no notice. 7 R. C. L. p. 620, par. 616; 7 R. C. L. p. 571, par. 559; 7 R. C. L. p. 593, par. 586; Id. p. 620, par. 616; 79 Ark. 338; Fletcher, Cyclopedia, Corporations, ch. 42. par. 1943, p. 3188. Knowledge of the execution of the contract by the general manager is imputable to the corporation. 4 Fletcher, Cyc., c. 42, p. 3462, § 2234; 118 Ark. 19a. Filing of the contract and recording same was notice to the corporation. 4 Fletcher, Corp. c. 42, § 2198, p. 3411. A corporation cannot avail itself of want of power or lack of authority of its officers to bind it, unless the defense is made on such grounds. 7 R. C. L. p. 629, par. 628; 89 Ark. 435; 80 Ark. 65. By failing to disaffirm, the contract was ratified. 4 Fletcher, Cyc. Corp. § 2198. A breach of contract renders the employer liable to the agent. 4 R. O. L. p. 254, § 9; 84 Ark. 462; 91 Ark. 212; 24 L. R. A. (N. S.) 1530. Corporations are liable in damages for the wrongful acts of their officers. 7 R. €. L.ap. 647; §§ 650-552; 58 Ark. 387.
   Smith, J.

This suit was brought by Gr. W. Chase and the Morning Star Mining Company against Roze E. Bennett for the purpose of canceling an agency contract for the sale of real property which Miss Bennett had caused to be acknowledged and placed of record. She filed an answer and a cross-complaint for damages for breach of her contract of agency. Numerous depositions were taken, upon which the cause was heard, and the complaint was dismissed for want of equity, and a decree was entered in favor of Miss Bennett upon her cross-complaint for $5,000 damages for breach of the contract, and this appeal is from that decree.

On June 5, 1919, Chase and Miss Bennett entered into two contracts, or, rather, one contract evidenced by two writings. It is not questioned that these writings were intended to be construed together as constituting a single contract.

The first writing recited that 'Gr. W. Chase, on behalf of himself and associate owners of the Morning Star group of mining properties, located in Marion County, Arkansas, had agreed as follows: That Chase had, for himself and on behalf of the associate owners, granted to Miss Bennett the sole and exclusive right to sell and dispose of the mining properties, the sale to be made through a trustee residing in Little Rock, to be approved by Chase, upon such terms and at such prices as might be named by Miss Bennett, and it was provided that, out of the money paid upon such sale, sixty per cent, thereof should be paid Chase until'he had received the full price of the property, and he agreed to execute all necessary contracts or conveyances to carry the agreement into effect: The other writing, executed and delivered contemporaneously, recited an exclusive agency to Miss Bennett to sell the property for the net price of $130,000, and that her compensation should be the excess of that amount for which she .might sell the property. This writing also provided that Miss Bennett should have the exclusive right to fix the selling price, the terms of sale to be agreed upon by her and Chase, and that Chase should not in any way fix a price to a prospective purchaser, or attempt to sell the property, and that “this contract shall be in force and effect until said properties are sold or until terminated by the consent of both parties hereto.” It was alleged by the plaintiffs that the execution of this contract was procured by the fraudulent representation that Miss Bennett had a prospective purchaser at the price named, with whom she was ready to close a deal in sixty days, and that the money would be paid in ninety days, whereas she had no purchaser at any price. It was also alleged that the contract was executed subject to the approval of John Reid, of Memphis, the president of the Morning Star Mining Company, a corporation, and J. A. Hartman, the secretary thereof, and should not become binding as a contract until the approval of Reid and Hartman had been secured, and further, that the contract was without consideration, and constituted a perpetuity, and was void for those reasons as well.

' The contract did not specify what property was included in the designation of “Morning Star group of mining properties, located in Marion County, Arkansas,” but it is not questioned that the property referred to was a mine owned by the Morning Star Mining Company and other mines having names as follows: Orphan Boy, Guy, Ben Carney, Smuggler, Fair Play, Capps, Cold Spring.

It does not appear whether any of these other mining properties were owned by corporations or not, but some of them were not, and they were owned by a large number of persons. The names of a number of these owners appear in the record, but it is not contended that all of the names of these owners are disclosed in the record. On the contrary, this suit was brought by G. W. Chase individually and the Morning- Star Mining Company, a corporation, and there were no other plaintiffs, and, while Miss Bennett filed a cross-complaint, she brought in no additional parties, and the only parties to the record are Chase and the Morning Star Mining Company and Miss Bennett.

The contracts set out' above were not acknowledged by Chase, but on September 22, 1919,- Miss Bennett acknowledged the execution of the instruments, and, in her acknowledgment, caused a description of all the lands referred to in the contract to be inserted, and she had the instrument thus acknowledged recorded.

The execution of the contracts was witnessed by J. W. McDaniels, and Chase testified that McDaniels, at the time of their execution, made a verbal contract with Miss Bennett to include in the contract his Morning Star stock and his interest in the Ben Carney mine, the same being a three-fourths interest. It is unnecessary to consider what individual liability McDaniels thus incurred, as he was not made a party to this suit.

We think the contract here sought to be canceled and upon which Miss Bennett bases her cross-complaint is not void as creating a perpetuity. It is not a grant of lands, and does not vest any interest therein in Miss Bennett, but, even if it did, that interest could not have extended beyond her lifetime. Cribbs v. Walker, 74 Ark. 104. However, we think the contract is a simple contract of agency, in which no time limit is fixed for performance of the contract, and it will therefore be construed as one granting her a reasonable time only in which to effect a sale of the property.

At § 28 of the chapter on Perpetuities in 21 R. C. L., p. 303, it is said: “Nor is a contract placing one’s property in another’s hands to manage and sell void as in violation of the rule ag-ainst perpetuities because it contains no limitation upon the duration of the contract, since the donee must proceed under the contract within a reasonable time, and his authority will terminate with his death.” See also Mills v. Smith, 6 L. R. A. (N. S.) 865; Harris v. McPherson, 24 A. L. R. 1530, and numerous cases there cited by the annotator.

We think the contention that the contract is unilateral and void, as being without consideration, is not well taken. The contract'recites a consideration of a dollar paid and the agreement by Miss Bennett to effect a sale at her own expense. This contract contemplated that she would incur considerable expense, and Miss Bennett testified that she did incur expense amounting to $2,000 in her efforts to sell the property, and that, in addition, she advanced $600 in money to Chase to meet certain pressing personal obligations. It appears that a portion of these $2,000 represented an expense incurred in having a survey and inspection and maps of the Morning Star properties made, under a prior contract with Chase to sell those properties, and, while no sale was effected then, it appears that $7,500 in earnest money was deposited and forfeited by the prospective purchaser produced by Miss Bennett, and this money was paid to and appropriated by the owners of that property. We think the reciprocal obligations of the parties to this contract furnished a sufficient consideration to meet the requirements of the law in that respect. Nothwang v. Harrison, 126 Ark. 548.

We are also of the opinion that the execution of the contract was not procured by fraud. It is true that Chase testified that Miss Bennett reported that she had a purchaser at hand with whom she could and would close a deal upon the terms authorized 'by the contract within sixty days, and that he also testified that the contract was provisional or tentative, and was to remain so until both Reid and Hartman had approved it, and several witnesses corroborated him in these statements. But the contract was actually delivered to Miss Bennett, and she testified that Chase represented to her that he had full authority to act for all the owners of the property which she proposed to sell, and she was not requested or required to submit it to either Reid or Hartman or any one else for approval, and that she did not represent that she had a purchaser at hand. Subsequent correspondence between Chase and Miss Bennett corroborates her version of this transaction. In a letter from Chase to Miss Bennett, dated June 23, 1919, he wrote her as follows: “In regard to you seeing Reid, that is not necessary, but it was your suggestion when you were here on the 5th, and I would like for him to know from you direct something of your hopes and plans.”

We think, however, that the testimony does not show that Chase had authority to bind the owners of the property which his contract with Miss Bennett authorized her to sell. As we have said, there were half a dozen or more separate mining properties which the contract authorized Miss Bennett to sell, and at least one of these was owned by a corporation, and no attempt was made to show that the corporation itself had authorized the sale of its property, and the contract was not for the sale of the stock of the corporation but for the sale of its physical properties, and such a contract by Chase, who was only the general manager thereof, could not bind the corporation; nor could it have been made binding on the corporation even though, it had been ratified by both Reid, the president, and Hartman, the secretary, as they themselves possessed no such power. Fort Smith Wagon Co. v. Baker, 84 Ark. 444; Dixie Cotton Oil Co. v. Morris, 79 Ark. 113; Bloch Queensware Co. v. Metzger, 70 Ark. 232.

Moreover, as we have said, the Morning Star Mining Company did not own all the lands which the contract authorized Miss Bennett to sell. There were 450 acres of the property, and. the Morning Star Mining Company owned only 160 acres, and the remaining 290 acres were the property of the other mines, which were owned by a large number of people, having various interests in the land, and no attempt was made to show that Chase had any authority to represent these owners. On the contrary, we think it affirmatively appears that Chase had no such authority, and some, at least, of these owners did not know — and probably do not yet know — -that Chase ever assumed to exercise any such authority.

The contract is an indivisible one. It fixed a price for all the property, and did not authorize the sale of any part thereof less than the whole, and, as it appears that Chase assumed an authority he did not possess, the contract must be held to be void, and it should therefore be canceled as constituting a cloud on the title.

It does not follow, however, that, because the contract is void as against all persons except Chase, no liability against any one can be predicated upon it. Chase assumed an authority he did not possess. Without authority so to do, he contracted with Miss Bennett to perform a service for the owners of this property, and we think it appears that she entered into this contract in good faith, under the assumption that Chase had the authority which he attempted to exercise. His liability must therefore be determined by a consideration of the obligation to Miss Bennett imposed by the contract. Arkmo Lbr. Co. v. Cantrell, 159 Ark. 445; Rittenhouse v. Bell, 106 Ark. 315.

As we have said, the contract gave Miss Bennett a reasonable time within which to effect a sale, and this was not afforded her, in view of the character of the property, for, very shortly after its execution, McDaniels, who had witnessed the contract, made a sale of his own interest and that of certain other owners of the stock of the Morning Star Mining Company to one Straube, of Pittsburg, Pennsylvania, and certain stock belonging to Chase himself, which had'been placed in a bank in escrow, was withdrawn, and these acts prevented Miss Bennett from making the sale which the contract contemplated. This suit itself was a repudiation of the contract and a breach thereof.

It is insisted that, whatever view may be taken of the issues we have discussed, Miss Bennett is not entitled to recover anything as damages because she did not produce a purchaser ready and willing and able to buy on the terms upon which she was authorized to sell. Miss Bennett does not sue, however, for a commission. Her cause of action is for the breach of a contract of agency, and, as it appears, from what we have said, she has made a case entitling her to this relief, the question arises as to what her measure of damages is.

Before she could recover anything by way of damages, she would, of course, have to show that, within a reasonable time, she could and would have made a sale at a price in excess of $130,000 net to the owners, and we think she has made this proof. The testimony shows that she made a very earnest effort to sell this property and incurred large expense in her efforts to do so. She made the showing that she had interested a broker in New York City in the proposition, who undertook to put the deal over for an equal division of the profits, and that this broker had raised $20,000 for that purpose. This deal was not consummated because, as appears from Miss Bennett’s testimony, the broker refused to proceed, upon being advised of the breach of the contract on the part of Chase, and she did not thereafter attempt to sell the property, as Chase’s breach had made it impossible for her to do so.

Without setting out in detail the testimony on this phase of the case, we announce our concurrence in the finding of the chancellor that Miss Bennett made a showing that she would have sold the property at .a profit if she had been allowed to do so, and the chancellor fixed this profit at $5,000, which finding is not, in our opinion, clearly against the preponderance of the evidence.

Various questions are raised about the sufficiency of the allegations of both the complaint and the cross-complaint to raise the issues here reviewed; but, without setting out these pleadings, it suffices to say that the testimony developed the issues we have discussed, and this testimony was taken without objection on either side, and, if the pleadings are not otherwise sufficient to raise these issues, they must be treated as amended to conform to the testimony taken without objection.

After the institution of this suit, and after the deposition of Chase had been taken, in which he testified that he had no authority to contract for the sale of the holdings of the Morning Star Mining Company, he died, and the cause was properly revived against his administrator, and the decree was rendered against his estate as well as against the Morning Star Mining Company.

The decree against the Morning Star Mining Company must he reversed, and it is so ordered, and the contract which Miss Bennett has placed of record will be ordered canceled, but the decree awarding damages against the estate of Chase will be affirmed.


author: McCulloch, C. J.

text:
    Ashton v. Ferguson.
    Opinion delivered May 12, 1924.
    1. States — additional allowance to legislators. — Under Amendment No. 8, fixing the per diem of members of the Legislature and providing that they shall receive no other compensation, perquisite or allowance, a resolution of both houses of the Legislature providing for issuance as to each member of a warrant for $100 to pay for stamps, telephone, telegraph and other necessary expenses is unconstitutional and void.
    2. Constitutional law — judicial questions. — In the exercise of any power, legislative or otherwise, due regard must be had for constitutional restrictions, and whether the exercise of a power transcends the limits set by the Constitution is a judicial question.
    Appeal from Pulaski Chancery Court; E. B. Downie, special chancellor;
    reversed.

      J. C. Marshall, for appellants.
    The resolutions must be declared void because the payment to the members of anything beyond the stated salary of $3 per day and mileage is prohibited by the Constitution, Amentment No. 8 thereof, which concludes with these words: “The terms of all members of the General Assembly shall-begin on the day of their election, and they shall receive no compensation, perquisites or allowance whatever, except as herein provided.” The word “allowance” has been given a construction by various courts which would exclude any allowance even of official expenses in ..addition to salary and mileage of members, and the word “perquisites” as applied to members of the Legislature, who receive no fees, could, under the law, mean only that they are to receive nothing even in the way of legislative expense, beyond their per diem and mileage. 110 N. E. (111.) 130; Id. 884, 890; 50 A. R. 705; 98 N. Y. 585.
    Even if our Constitution did not prohibit expenses of legislators, still none could be allowed unless there was a statute authorizing it. Here there is none, only the resolutions of the House and Senate. 1 Dillon on Municipal Corporations, 233; 68 L. R. A. 264. Certainly the House and Senate may provide out of its contingent fund for the expenses of each as a body, such as paper, ink, stamps, etc., art. 19, § 15, Const., but that is a very different proposition from an allowance to each member of a large sum in cash out of the contingent fund, to be spent as he pleases. C. & M. Digest, § 4959, providing that each house shall control its own expense®, etc., refers to the expense of each house as a body, and is no authority for the allowance of cash to its individual members. There is no appropriation for such an expenditure as that here attempted. The only appropriation made is that for per diem, mileage and contingent expenses, which refers only to the expenses of the body as such. Moreover, if this appropriation were made to be used as is sought to be done here, it would be for a private purpose, and void. Const., art. 16, § 12, and art. 5, § 29; 1 Cooley, Constitutional Lim., 181, 184, 185; 54 L. R. A. 242, 107 Fed. (C. C. A.) 827. This allowance would be void because it is an increase by them of their salaries before their term expires. 110 N. E. 141; Const., art. 5, § 16, and art. 19, § 11. The amount voted and allowed, more than three times the salary, is a disguise and a subterfuge on its face. The court must take notice of the fact that, if the people limit the members to $3 per day, an allowance of over three times that amount, .under the guise of legislative expenses, must be a pretense, and nothing else. The claim that the court, if it looks behind this proposed allowance, would be .interfering with a coordinate department of the government, needs no answer. This court will strike down an unconstitutional act of any body or officer, whenever its unconstitutionality is made to appear. 141 Ark. 140; 76 Ark. 197, 210; 117 Ark. 352; 187 S. W. (Tex.) 367, 372.

      J. 8. Utley, Attorney General; John L. Garter, Wm. T. Hammock, Darden Moose and J. 8. Abercrombie, Assistants, for appellees; X. O. Pindall and Neill Bohlinger, of counsel.
    The power to determine the propriety of the payment in question is not a judicial, but a political, question. Whether the action complained of is wise or not cannot be inquired into by the courts. 72 Ark. 195; 94 Ark. 27; 112 Ark. 437; 114 Ark. 486. As distinguishing between legislative and judicial matters, and to show how jealously the prerogatives of the legislative branch of the government are protected against judicial invasion, see 88 Ark. 211; 89 Ark. 428; '25 Ark. 574; 54 Ark. 101; 97 Ark. 473; 103 Ark. 127; Id. 48; 109 Ark. 479; 141 Ark. 247; 147 Ark. 160. See also, Cooley on Constitutional Limitations, 7th edition, 187-196.
    The power to function cknnot be properly exercised unless each house is left free to determine what are its necessary expenses. It implies the power to use such means as are reasonably necessary to enable the body to-function. (U. S.) 4 Wheat. 418-21. On the proposition that this is a political and legislative question, rather than judicial, see also 142 Tenn. 527; 201 Pa. 544, 1 L. R. A. (N. S.) 409. It appears that appellants would make it a subject of judicial inquiry as to whether the amount appropriated was proper. If the judiciary should undertake such an inquiry, where would -it lead to, and where would it end? We think the correct principle is stated in the case of Shdrpless v. Philadelphia. 59 Am. Dec. 675. See also 187 S. W. 367.
   McCulloch, C. J.

An extraordinary session of the General Assembly was convened on March 24, 1924, by proclamation of the Chief Executive, and the session lasted twelve days. On the fourth day of the session the House of Representatives adopted a resolution directing- the clerk to “issue to each member of this House of Representatives a voucher with which to pay expenses of stamps, telephone, telegraph and other necessary expenses, the sum of $100, and the Auditor of State is hereby directed and empowered to issue appropriate warrants covering said vouchers so issued, and the Treasurer of this State is hereby authorized to honor said warrants.” On the last day of the session the Senate adopted a resolution directing the secretary to “issue warrants to each Senator for one hundred dollars, covering stamps, telegrams and other incidental expenses incurred while attending- said Legislature.”

Appellants are citizens and taxpayers of the State, and they instituted this action in the chancery court of Pulaski County against the Auditor and Treasurer to. restrain them from issuing and paying warrants under the foregoing resolution. It is contended that each of the resolutions referred to is unconstitutional and void.

An amendment to the Constitution, adopted in the year 1913 and now in force, reads as follows:

“Article 5, § 17, amended. Each member of the General Assembly shall receive six dollars per day for his services during the first sixty days of any regular session of the General Assembly, and, if any regular session shall be extended, such members shall serve without further per diem. Each member of the General Assembly shall also receive ten cents per mile for each mile traveled in going to and returning- from the seat of of government, over the most direct and practicable route. When convened in extraordinary session by the Governor, they shall each receive three dollars per day for their services during the' first fifteen days, and, if such extraordinary session shall extend beyond fifteen days, they shall receive no further per diem. They -shall be entitled to the same mileage for any extraordinary session as herein provided for regular sessions. The terms of all members of the General Assembly shall begin on the day of their election, and they shall receive no compensation, perquisite or allowance whatever, except as herein provided.”

The per diem and mileage of the Senators and Representatives were paid out of the funds regularly appropriated to cover the expenses of the session, and it is plain that the allowances attempted to be made in these resolutions were to be in addition to the mileage and per <Mem. The contention of counsel for appellants is that this is no more nor less than an attempt, in violation of the Constitution, to make an additional allowance to the Senators and Representatives; and, on the other hand, it is contended by counsel for appellees that this is not an allowance or perquisite or additional compensation within the meaning of the Constitution, and is merely a provision by each of the houses of the General Assembly for the payment of the expenses of conducting the session.

There is a statute (Crawford & Moses’ Digest, § 4959) which provides, in substance, that each of the two houses of the General Assembly shall control its own contingent expenses, and that the same shall be certified by the presiding officer. This statute merely declares that which is an essential power of each of the houses of the General Assembly in order to perform its functions, and it should be said, in advance of this discussion, that, if no more were involved than the exercise of this power, the determination of the case would be easy. Undoubtedly each of the houses possesses the power to determine its necessary expenses, but, in doing so, it must proceed within constitutional restrictions, and is not permitted to disregard express constitutional provisions. The Constitution provides, in explicit and comprehensive terms, what payments shall be made to members. The provision in this respect does not express merely a grant of power, but it places a limitation upon the power of the General Assembly. It provides, in other words, what may be paid to the members, and expressly forbids the payment of anything more. The restriction relates not merely to mileage and per diem, but it provides that the members “shall receive no compensation, perquisite or allowance whatever, except as herein provided.” These words mean more than mileage and per diem, and the use of them excludes the payment of anything else to members. Each of the resolutions referred to directly offends against this express limitation in the Constitution. The provision for the payment of one hundred dollars to each member is nothing more nor less than an allowance. It is an allowance for the use of each member for the purposes mentioned, but it is to be used at the will of the members to whom it is paid, and is, after all, a mere allowance, and not the payment of expenses incurred by the house itself.

Each house may provide conveniences, such as stationery, pencils, ink, telephone and telegraph and other things for the use of the members, and pay for the same out of contingent expenses, but it is quite another thing to attempt to make an allowance of funds to a member to be used at will. One is the payment of a legitimate expense, and the other is an allowance placed at the disposal of the members to be used at his own discretion and will. One is a payment of necessary expenses of the house itself, and the other is an allowance to the member in spite of the provision of the Constitution to the contrary. The question must be disposed of in an interpretation of the peculiar language of the Constitution, hence authorities directly bearing upon the question are not available. It may be said, however, that the decision of the Supreme Court of Illinois in the case of Fergus v. Russell, 270 Ill. 626, is very nearly in point. In that State there was a provision in the Constitution prohibiting the payment to members of any compensation in addition to the amount specified, and a provision that there should be “no other allowance or emolument, directly or indirectly, for any purpose whatever, except the sum of fifty dollars per session to each member, which shall be in full for postage, stationery, newspapers, and all other incidental expenses and perquisites.” There was a joint resolution allowing to each member of the House and Senate “Ms actual railroad mileage for twenty-one round-trips from the capital of the State to and from their respective homes, at the rate of two cents per mile.” The Supreme Court of Illinois decided that the resolution providing for extra mileage offended against the provision of the Constitution, and was void. The court held that the payment of extra mileage was an attempt to make an “allowance” within the meaning of the Constitution.

Counsel for appellees rely on the decision of the Tennessee court in the case of State v. Thomason, 142 Tenn. 527. In Tennessee there is a provision of the Constitution fixing the per diem and mileage of members of the Legislature “as a compensation for their services,” and the Legislature passed a- bill authorizing the payment to each member of the sum of $150 “for stenographic work and other necessary expenses.” It was contended that the allowance was in conflict with the Constitution and void, but, in disposing of the question, the Supreme' Court held that the constitutional provision in question was a limitation relating solely to the matter of compensation, and not to expenses of the members, and that the Legislature was free to make allowances for expenses of the members themselves, as well as for the expenses of the House as a whole. The Constitution of that State contained no inhibition, as in this State, with reference to additional allowances to members other than those expressly provided for. We do not think that the Tennessee case has any bearing on the question now presented.

It is further argued by counsel for appelleés that the question presented is a political one, and not judicial, but the answer to this contention is that, in the exercise of any power, legislative or otherwise, due regard must be had for constitutional restrictions, and it becomes a judicial question whether or not the limits set by the Constitution have been transcended.

Our conclusion is that these allowances are in plain violation of the Constitution, and the officers of the State should be restrained from making disbursements thereunder.

The decree of the chancery court is. therefore reversed, and a decree will be entered here in accordance with the prayer of the complaint.