author: Humphreys, J.

text:
    Dupree v. Williams.
    Opinion delivered February 21, 1927.
    1. Municipal corporations — improvement district — validity op assessment. — Where an assessment for sewer benefits in a municipal improvement district and the proceeding to foreclose •a lien therefor were against an undivided half interest in a certain tract of land, a sale thereunder was void, under Crawford & Moses’ Dig., §§ 5657, 5667, since the benefits must be assessed against each tract of land, and not against an interest therein.
    2. Municipal corporations — improvement tax sales — redemption. —Crawford & Moses’ Dig., § 5644, limiting the time for redemptions from sales for improvement taxes to five years, and § 6946,' Id., limiting the time for redemption from judicial sales to five years, do not apply to void sales.
    Appeal from Miller Chancery Court; C. E. Johnson, Chancellor;
    reversed.

      Frank S. Quinn, for appellant;

      Shaver, Shaver $ Williams, for appellee.
   Humphreys, J.

Appellant instituted suit against appellees in the chancery court of Miller County to redeem the north half of the northwest quarter uf the southeast quarter of the northeast quarter of section 19, township 15 south, range 28 west, in said county, from a sale for sewer district taxes, predicating her cause of action upon the allegations that she was a tenant in common with appellees in a 10-acre tract of land, of which the land described above was a part at the time they bought it in for sewer faxes, and that their purchase was for her benefit, and that they hold the tax title in trust for her; that, if not the owner as tenant in common, the sewer tax foreclosure and sale were void and of no effect.

Appellees filed an answer to appellant’s complaint, denying the material allegations therein and interposing the defenses of limitations under redemption statutes, and laches.

The cause was submitted to the court upon the pleadings and testimony introduced by the respective parties, which resulted in a decree dismissing appellant’s complaint for want of equity, from which is this appeal.

On the 24th day of January, 1913, appellant loaned the Southern States Realty Company, of Texarkana, Arkansas, the sum of $10,000, the said realty company being a subsidiary of the Texarkana Trust Company, a banking corporation, and, to secure the note given for the loan, such company executed its mortgage deed of trust to Prank S. Quinn, as trustee for appellant, on a large acreage, including’ the land described above. Subsequent to the execution of the mortgage, the Southern States Realty Company conveyed to the Texarkana Trust Company all the lands it was holding for said trust company, including the land mortgaged to appellant. On January 1,1914, A. B. Little of Texarkana was appointed receiver for the Texarkana Trust Company, to succeed James D. Head, and continued as such receiver until the year 1921, when the receivership was closed. On November 15,' 1915, Sewer Improvement District No. 17 of the city of Texarkana foreclosed its lien against said real estate for delinquent improvement taxes, and sold same to satisfy said lien, at which sale appellees became the purchaser, and later procured a tax deed for same. The land was assessed in the sewer district as an undivided one-half interest in lot 10, section 19, township 15 south, range 28 west, and the same description was maintained throughout the proceedings to enforce the lien for delinquent sewer taxes. Appellant was not made a party to the proceeding. In the month of July, 1917, after the sale and purchase of an undivided one-half interest in said 10-acre tract by appellees at the sewer tax sale, the several owners thereof entered into a partition agreement whereby the Texarkana Trust Company was to have the north five acres and appellees and W. H. Arnold the south five acres. Subsequently the partition agreement was reported to the Miller Chancery Court, and approved. Deeds were never delivered to the respective parties in accordance with their several interests, but the partition agreement was acquiesced in and acted upon by said parties. On the 11th day of August, 1917, the Texarkana Trust Company agreed to convey the lands mortgaged to appellant to secure the $10,000 loan to the Southern States Bealty Company to her in settlement of the note and mortgage. The agreement was approved by the chancery court on November 19, 1917, and the receiver was ordered to make a deed to her for the lands. He complied with the order, and, instead of conveying her the undivided one-half interest of the Texarkana Trust Company in said 10-acre tract, he conveyed her the north half of said 10-acre tract, in keeping with, the partition agreement made between the parties, and approved by the chancery court on September 19, 1917. The 10-acre tract is unimproved. Neither appellant nor appellee have ever had actual possession thereof.

We deem it unnecessary to more fully state the facts revealed by the record in order to determine the ownership of the north five acres of said ten-acre tract. According to the statement above, it will be observed that appellees, W. H. Arnold and the Texarkana Trust Company, owned the 10-acre tract as tenants in common prior to the purchase at the sewer tax sale by appellees of the undivided one-half interest therein of the Texarkana Trust Company.

Appellees claim to have acquired the undivided one-half interest of the Texarkana Trust Company in said 10-acre tract under the tax sale, and not otherwise. They contend that the sale was valid. Appellant contends that the sale was void upon several grounds, the chief one being that the assessment of benefits was assessed against an undivided one-half interest in the 10-acre tract instead of being assessed against the entire tract, or some particular part of same. Our interpretation of § § 5657 and 5667 of 'Crawford & Moses’ Digest is that benefits must be assessed against each lot, block or parcel of land in an improvement district, and cannot be assessed against an undivided interest therein. An undivided interest is neither a lot, block, or parcel of land. The sewer tax sale was .absolutely void, and no rights were or could be acquired therein by appellees as against their tenants in common or its grantee, the appellant herein. Section 5644 of Crawford & Moses’ Digest, relative to redemptions from improvement district tax sales within five years, and § 6946 of said Digest, relative to redemptions from judicial sales within five years, have no application to sales which are absolutely void. Appellant is therefore not barred by either statute.

There is nothing in the record which calls for the application of the doctrine of laches.

Appellant has offered to refund all taxes, with interest, which appellees have paid on said land, so the decree will be reversed, and the cause remanded with directions to cancel the alleged sewer tax title and the record thereof, and to quiet the title to the north five acres of said ten-acre tract in appellant as against appellees, upon the payment of taxes and interest paid on said land by appellees.


source: Caselaw Access Project

author: Kirby, J.,

license: Public Domain

text:
    Wacaster v. State.
    Opinion delivered February 21, 1927.
    1. Criminal law — argumentative instruction. — In a prosecution for murder, refusal to give requested instructions which were argumentative and on the weight of the testimony was not error.
    2. Criminal law — repetition of instructions. — Refusal to give an instruction which was covered by another instruction given was not error.
    3. Criminal law — instruction as to presumption of innocence. — ■ In a prosecution for murder, where the court correctly charged on the law relating to weighing the testimony, the presumption of innocence, and reasonable doubt, a requested instruction that, if any testimony in the case is susceptible of two constructions, one of guilt and one of innocence, the jury must give the construction of innocence, was properly refused where there was no attempt to prove defendant’s guilt by inferences to be drawn from facts and circumstances established by testimony.
    4. Criminal law — instructing jury after retirement. — Crawford & Moses’ Dig., § 3192, providing the manner in which the jury shall acquire information on any point of law or of evidence after it has retired, held mandatory.
    5. Criminal law — instructing jury after retirement. — In a prosecution for murder it was error, in view of Crawford & Moses’ Dig., § 3192, for the court to give an additional instruction to the foreman of the jury in absence of defendant and his attorney, and such error was not cured by testimony of jurors that they had already reached a verdict of guilty before the instruction was given, such testimony being incompetent.
    Appeal from Garland Circuit Court; Earl Witt, Judge;
    reversed.
    STATEMENT BY THE COURT.
    Lee 'Wacaster, appellant, was indicted, tried and convicted in the Garland Circuit Court for the crime of murder in the first degree for killing Tillman Brown, and his punishment fixed at life imprisonment in the penitentiary, and from this judgment prosecutes an appeal.
    It appears from the testimony that there had been some previous trouble and fighting between the deceased, Tillman Brown., and threats made by him against appellant, whose wife was Brown’s stepsister; that, on the day of the killing’, Brown and his wife had driven np to the front of Wacaster’s house, and had been talking' to Mrs. Wacaster for about twenty minutes when Wacaster came up from the rear in his car, stopped, and then started and drove off around the block, came back, and stopped his car behind Brown’s and asked, as one witness said, “Tillman, who told you to come around here ? ” to which Brown replied, “I am in the street, ain’t I, Lee?” Lee replied, “It don’t make a damn bit of difference if you are, get out from here.” Brow said, “It’s a free street, and I don’t intend to leave until I get ready.” Wacaster then went into the house and called Mr. Floyd, a deputy sheriff, on the ’phone, and was heard to say, “There is a fellow out here in front of my place, and I have ordered him to leave, and he won’t do it. What about it?” Witness then heard him say, “Well, if he don’t leave, I will fix it so he will have to be carried out.” Wacaster came out of the house, and said “Tillman, I said for you to leave,” to which Brown replied, “I don’t intend to leave. I didn’t come up here for any trouble, but to talk to Florence” (Wacaster’s wife). Mrs. Brown then said, “Let’s go on,” and Mrs. Wacaster said, “No. Don’t go; he is just trying to pull one of his old bluffs.” Wacaster told him to leave again, and Brown said, “I am in the street, and there is no son-of-a-bitch can make me move.”
    Wacaster then asked Mrs. Brown to get out, and told Tillman to leave again. Told Mrs. Brown to get out, for he would move him, if he didn’t get out, with the car. He moved around inside the fence to where he could shoot without hitting her, and fired, and that’s about all, as Mrs. Brown stated. She said her husband had one hand on the wheel and the other in his lap'; that Brown was in his shirt-sleeves.
    The deputy sheriff stated that Wacaster called him just before the trouble, Sunday afternoon, saying, “There was a man in front of his gate who refused to move,” and wanted to know what to do about it. The deputy replied, “Well, bring him on down.” He didn’t think there was any trouble. Wacaster said, “No, I don’t want to have any trouble with him. The man is right in front of my gate.” I said, “Well, you have a right to move him if he is on your property, but don’t have any trouble.” He replied, “Well, if he don’t move, you will have to come and get him or me, or both of us.” After a little the phone rang again, and Wacaster asked if we wanted him to come on down.
    Other witnesses testified that they arrived on the scene while Brown’s car was still standing, and that there was a bottle lying on the front seat under the steering wheel, and that the front wheels of the car were about four and a-half feet from the fence, with the back wheels a little further out in the street.
    There was other testimony that Brown had said to a witness to whom he was talking when Wacaster passed, ‘ ‘ There went a son-of-a-bitch I am going to get sooner or later.” He said that Wacaster had been mistreating his wife. This witness repeated the threat to Wacaster.
    Another, Miles Conway, stated that he had heard Brown say, on coming out of Wacaster’s place of business some months before the killing, to Wacaster, “You son-of-a-bitch, I will kill you sooner or later.” He was getting into his car at the time.
    Another witness testified that, two or three years before, when he was at work for Wacaster, who had cut his hand, that Brown came and went into the house while . witness was cleaning hogs in the yard, and came out with a gun in his hand, and said, “Lee is not here, but that’s all right, I will kill the son-of-a-biteh sooner or later. ’ ’
    Two or three other witnesses testified about threats made by Brown against Wacaster. Brown said that if Lee Wacaster mistreated his wife he was going to kill him. Wacaster and his wife had had trouble.
    Another witness heard Brown talking to Mrs. Wacaster on the ’phone, and heard Mrs. Wacaster say to him, “It is the same old thing over all the time, just fussing and raising hell all the time.”

      Defendant stated that he was not related to Brown. After he married, Tillman Brown’s mother married Mrs. Wacaster’s father; that he had trouble with Brown recently before the fatal encounter; that Brown had knocked him in the head when he came back from Colorado, with a piece of pipe he had thrown at him at the slaughter-house, because of the dispute over a right to use a slaughter-pen; that he had had trouble with him over at his, defendant’s, blacksmith shop, when he had tried to make Brown stop fighting another man, and he jumped on him, swore that he would kill him, and went home after a gun. “About ten months before the killing he came to my slaughter-pen, and said, I understand you have been mistreating Florence again.’ I said, ‘No, I guess not.’ He said, ‘You God damn son-of-a-bitch, I am going to kill you; you are going to stop it.’ And I said, ‘It looks like you would attend to your own business.’ And he said, ‘I will get you, you son-of-a-bitch,’ and he drove off when Mr. Conway came.” He was then standing in the door of the slaughter-pen, with his right hand in his coat pocket. He later saw Brown on his front porch, talking with his wife, and when he drove'up. and saw that it was Brown, he drove on away. This was about a month before the killing. He didn’t stop at that time because he had heard the threats Brown had made against him, and he didn’t want any trouble. He had been told of Brown’s threats by two or three different people; on the day of the killing, about three o’clock, he went by his house to get his saw and some orders. ‘ ‘ Stopped when I saw Brown was there, and drove away around a block and a half, and returned in about ten minutes, driving slowly, thinking Brown would be gone before I got back.” Said further: “I stopped my car, taking my gun off the seat and went into the yard and said, ‘Tillman, who sent for you?’ And he said, ‘I am here.’ I said, ‘Well, I don’t want you out here now; you get up and go on away from my place. ’ He said, ‘I don’t go nowhere; no son-of-a-bitch can’t move me.’ I said, ‘I will call a man and have him come and move you.’ He said: ‘You or no other son-of-a-bitch can’t move me.’ I went in and called the sheriff’s office. I said: ‘Is this you, Floyd?’and he said it was. I said: ‘Floyd, there■ is a man out here at my place and he won’t go away, I have had trouble with him.’ He said: ‘Who is it?’ I said, ‘Tillman Brown.’ He said: ‘You go out there and tell him to move; you have a perfect right to move him. ’ I said, ‘I don’t want to; I don’t want any trouble.’ He said, ‘You go out' and tell him to move.’ I went out and said, ‘Now, Tillman, go on away; I don’t want you here.’ Brown said: ‘I don’t go nowhere; no son-of-a-bitch can move me.’ Now I said: ‘Go on, you and your wife move on away from my place; you are not wanted here. ’ He said: ‘You God damn son-of-a-bitch,’ and grabbed with his right hand down in.the seat, and I fired. I do not know from what position I fired. I do not know where I hit him. I did not get out of my car and tell him to move, and then go back and get my gun. I took my gun to protect myself from any ‘attempt he might make against me, on account of the threats he had made. I saw something between him and his wife, and I thought it was a gun. It was on the seat between him and his wife. I did not change my position, nor did I say, ‘Move, woman.’ I said for them to move. Mrs. Brown was never in the range of fire. It was never necessary for her to move. I shot him because I thought it was to shoot or be killed myself. I did not at that time intend to kill him. My wife and myself had been having trouble. My wife has had Tillman Brown to protect her. * * * I never at any time raised a difficulty with Tillman Brown. I have tried to stay out of trouble with him. I have avoided him, and have left my own home and have passed my own home when he would be there, and leave him there. ’ ’
    Denied on cross-examination that he had become vio-, lent in his own home within the last year, “but my wife and two of her sisters got a gun there, and she said if Brown didn’t kill me she would.” Stated that he had carried the shotgun for several years, ever since he had been knocked in tbe bead at tbe park. Denied tbat be bad ever told any one tbat be was going to kill Brown, and said tbat be never went anywhere with tbe shotgun looking for it; tbat be bad never attended a family reunion where Tillman Brown was, and bad.never bad anything to do with him. After be talked with the deputy sheriff, be went out to tell him, Brown, to go, and “my intention was, if be didn’t go, to go back and tell tbe sheriff, and when be made tbe break I thought tbat was my only chance. As tbe car was up'next to my fence, I saw something in tbe seat, thought it was a gun, and when Brown said, ‘You son-of-a-bitcb,’ and grabbed down, I fired.”
    Marion Cook stated be beard tbe gun fire, and ran over, and Wacaster got in bis car and said to him be was being imposed on, or couldn’t be imposed on any longer. “I asked him what be did it for, and be said he was tired of being imposed on by him, and be couldn’t stand it any longer.”
    Tbe court instructed*the jury, refusing to give appellant’s requested instructions numbered B and F, which refusal was made grounds of tbe motion for a new trial as well as complaint of error, because tbe court, after the jury bad retired, permitted the jury to take tbe written instructions in tbe jury room, and especially because tbe instructions on reasonable doubt and presumption of innocence had not been written and were not included therein.
    Complaint was made, further, of tbe court having instructed tbe foreman of tbe jury out in tbe hallway, in front of tbe room where they were considering tbe case, in tbe absence of appellant and bis counsel. Tbe bill of exceptions also recites:
    “On tbe 6th day of November, 1926, the court made tbe following further statement: ‘I will just make this statement then, tbat it was either at the time when tbe jury bad requested tbe written instructions or I had gone to see as to whether or not they were making any progress toward a verdict; at any rate, I remember Mr. Kyle (tbe foreman of tbe jury) asked me something about the likelihood of a parole in the case, and I told him that was a matter the jurors shouldn’t consider at all in arriving at their verdict; that the likelihood of a parole was outside of their consideration of the ease, and they shouldn’t let that weigh with them at all, and I told him at that time to mention that fact to the jurors, that they shouldn’t take into consideration the likelihood-of pardon in the case at all, because it wasn’t a matter for them to determine; .just fix the punishment, whatever it was, or what they thought should be fixed.” The court further said, “I don’t think the defendant was there at the time, or his attorneys.”

      Cobb & Cobb and Witt & Witt, for appellant.

      II. W. Applegate, Attorney General, • and Darden Moose, Assistant, for appellee.
   Kirby, J.,

(after stating the facts). No error was committed by the trial court in refusing appellant’s prayer for instructions numbered B and F, 4 and 23. Instructions B and F were argumentative, and, in effect, amounted to instructions upon the weight of the testimony, telling the jury what importance should be attached to the evidence or lack of evidence, which this court has said should not be done. Bullard v. State, 159 Ark, 435. Moreover, these instructions were fully covered by instructions numbered 16, 17, 18, 22 and 23, given by the court.

Instruction No. 4, refused, was likewise fully covered by instruction No. 20, correctly given by the court upon its own motion, and it was unnecessary to give more than one instruction of the law applicable to the particular facts. Housely v. State, 143 Ark. 425, 252 S. W. 584.

Neither was error committed in refusing to give requested instruction numbered 23, telling the jury “if any of the testimony in the case is susceptible of two constructions, one of guilt and one of innocence, then it is your duty to give it the construction of innocence.” The court correctly instructed the jury on the.law relating to weighing the testimony, the presumption of innocence and the question of reasonable doubt, and there -was no attempt to prove the guilt of defendant by inferences to be drawn from facts and circumstances established by the testimony. DeShazo v. State, 120 Ark. 494, 179 S. W. 1012; Cooper v. State, 145 Ark. 403, 406, 224 S. W. 226; Wawak and Vaught v. State, 170 Ark. 329, 279 S. W. 997.

Relative to the assignment that error was committed by the trial court in permitting the instructions, two oral instructions not transcribed, hot included, sent to the jury room without the consent of appellant or his counsel, it will suffice to say that, since the case is to be reversed on another point or assignment of error, and remanded for a new trial, at which no such ground for objection is likely to occur, we do not find it necessary to pass upon it now.

This court has concluded, however, that error that calls for reversal of the judgment was committed by the trial court in his conversation with, or instruction to, the foreman of the jury in the hall outside of the jury room, and away from the presence of defendant and his attorneys. The court, in explanation of this incident as set out in the statement, said:

“I told him, in answer to -his inquiry, that the likelihood, of a parole was outside of their consideration of the case, and they should not let that weigh with them at all, and I told him at that time to mention that fact to the jurors, that they shouldn’t take into consideration the likelihood of pardon in the case at all, because it wasn’t a matter for them to determine. Just fix the punishment, whatever it was, or what they thought should be fixed.”

Section 3192, Crawford & Moses’ Digest, provides how a jury, after it has retired for deliberation, shall acquire information on any point of law or about any part of the evidence, if there is disagreement, that they must require the officer to conduct them into court, where the information required must be given in the presence of, or after notice to, the counsel of the parties. Its provisions are mandatory. The jury might well have con-eluded that this instruction was an expression of the court’s opinion upon the weight of the testimony and the guilt or innocence of the defendant by his saying, “Just fix the punishment, whatever it was, or what they thought should be fixed.”

In Wawak and Vaught v. State, 170 Ark. 329, the court said: “It is, of course, not only improper, but is error calling for the reversal of the judgment, for the court to communicate with the jury, in the absence of the defendant, any directions in regard to their verdict. Hinson v. State, 133 Ark. 149; Pearson v. State, 119 Ark. 152.” Neither could its harmful effect be relieved against by the testimony of the jurors, after the verdict was rendered, that they had already reached a verdict of guilty before the communication- or instruction was received, since the jury had the right to consider or reconsider the question of guilt until the delivery of the verdict, and the jurors are not permitted to testify about such matters, anyway.” Kindrix v. State, 138 Ark. 594, 212 S. W. 84.

For the error designated the judgment must be reversed, and the cause remanded for a new trial. It is so ordered.


author: Mehanny, J.

text:
    Mutual Relief Association, v. Weatherly.
    Opinion delivered February 21, 1927.
    1. Insurance — liability under benefit certificate. — Provisions in mutual benefit certificates that the association will pay a certain amount upon the condition that one assessment on the members of the circle or group in which said member is placed shall produce such amount, less the cost of collection, are valid and binding.
    2. Insurance — liability under benefit certificate — burden of proof. — Where a mutual benefit association obligated itself to pay a certain amount on assured’s death if an assessment on its members produced same, the burden is on the association to show the amount produced by such assessment.
    3. Evidence — withholding evidence — presumption.—Where evidence which would properly be part of a case is within the control of the party whose interest it would naturally be to produce it, and, without satisfactory explanation, he fails to do so, the jury may draw an inference that it would be unfavorable to him.
    4. Insurance — liability under benefit certificate. — Under a 'benefit certificate limiting an association’s liability to the amount produced by one assessment on the members of the assured’s circle, less the cost of collecting it, it is immaterial whether the amount came in before or after the 30 days allowed for collecting it.
    5. Appeal and error — questions not raised below. — Attorney’s fees and damages in an insurance case, for which no claim was made in the court below, will not be allowed on appeal.
    Appeal from Logan Circuit Court, Southern District; James Cochran, Judg’e;
    affirmed.

      John P. Roberts and Carmichael & Hendricks, for appellant.

      Evans <3 Evans, for appellee.
   Mehanny, J.

The appellant is a mutual benefit association, organized in 1913, and issues policies or benefit certificates to its members, and they are divided into groups or circles. The appellees were members and certificate-holders, and the certificates entitled them to $500 each, but the promise to pay $500 was upon the condition that prompt and due payments be made by the cer7 tificate-holders of all assessments made under the rulings of the company.

There is no controversy as to the certificate-holders, parties to this suit, having paid their dues, and there is no controversy about liability. The appellant contends, however, that it is only liable in one case for approximately $208 and in the other something like $285, and contends that the policy or certificate entitles the member to collect $500 only in the event that one assessment on the members of the circle or group in which said member may be placed, less the cost of collecting said assessment, equals the $500. The contention is that the company is liable for the assessments collected, in that particular group or circle, and, if that amounts to $500, after deducting the cost of collecting the assessments, then the beneficiary will be paid $500. If it amounts to less than $500, then the beneficiary under the certificate is entitled to the amount collected less the cost of collecting.

This court has several times held that provisions like this in the policy or certificate are valid and binding, and, in a case not long since, the court said:

“The by-laws provide that the maximum amount of the benefit is to be the sum of one thousand dollars, and that the value of a benefit certificate shall be ‘ contingent on the full and prompt payment of all assessments by the members of the class to which the applicant belongs, and in no event shall said certificate have a greater intrinsic value than the amount paid in by the whole membership of said class on the last assessment, after deducting the actual cost of collecting said assessments.’ * * * The undisputed testimony is that the amount of the last assessment preceding the death of Tate was $475, and this is the limit of the amount recoverable on this certificate.” Fayetteville Mutual Benefit Assn. v. Tate, 164 Ark. 317, 261 S. W. 634.

Again this court has said, in deciding a case similar to this: “We are of the opinion, however, that the judgment is excessive, and that, according to the undisputed evidence, appellee is only entitled to recover $124.40, ‘the amount paid in by the whole membership of said group on the last assessment preceding the death of the insured.’ ” Home Mutual Benefit Assn. v. Rowland, 155 Ark. 450, 244 S. W. 719, 28 A. L. R. 86.

Under the decisions of this court, the company in this case would have been liable to the beneficiaries under these certificates for the amounts collected from the assessments, less the cost of collection. The only person, however, who could show what had been collected on this assessment was the company itself, or its officers. It is contended that, in one group, there were only 499 members, if that many, and that the assessment therefore could not have produced as much as $500. Appellant’s counsel, however, apparently overlooked the fact that the minimum assessment was $1, and the maximum assessment $1.40. It is conceivable that the assessment might have exceeded $500, after deducting- the cost of the collection, and the bookkeeper testified that, in this particular group, they had at least 499, unless some of them had lapsed, and that the record the witness testified from did not show any lapses. She also testified that the smallest assessment was $1, and from that graduated up 2 cents a month, and that this was true also of the other group. She testified also that the records show the total amount received from the assessment made on the death of Mr. Weatherly was $218.41, that the cost of collecting was $10, leaving- a balance of $208.41, and this is the amount the company admits it owes under this particular certificate, and under the other certificate the assessment amounted to $303.91. The assessment was evidently properly - made, at any rate there is no contention that this was not done," and the assessments were collected, and it appeared that'the $208 and $285, approximately, were the amounts received within 30 days after the assessment was made, and that sometimes there would be quite a little money come in from the assessment after the 30 days expired. There is no attempt to show how much came in from the assessment after the 30 days had expired. Neither the secretary nor the officers of the company testified, and, when the court directed them to bring in their daily records, the witness stated they could not go through all that, they would have to go through each book, and the daily records were never brought in. The officers of the company had in their possession the records that would have shown the exact amount of the collections from each assessment. No one else was in possession of these facts; and, if the company did not want to be held liable for the $500, it was its duty to produce the evidence and thereby show the exact amount each beneficiary was entitled to.

This court has said: “As to the burden of proving the amount realized, or which could have been realized, by an assessment levied according to the terms of the contract sued on, the authorities are not agreed. We are of the opinion that, where the party suing on such contracts is entitled to recover, the society or association which agrees to make the assessment upon its members, and to pay the amount realized, not exceeding a certain amount, to the beneficiaries named in the contract, is prima facie bound to pay the maximum amount of its liability, as specified in the contract, and the burden is on the society to prove that a less amount would have been realized by an assessment. ’ ’ It would be difficult, if not impossible, for the beneficiaries in such contracts, or their representatives, to show the number of the assessable members of the society and the amount that could be realized by an assessment upon them. These are facts within the peculiar knowledge of the society.” Masons’ Fraternal Accident Assn. v. Riley, 65 Ark. 261.

In the case at bar the bookkeeper alone was called to testify. The daily records, and in fact all the records that would have thrown light upon the question, were in the possession of the association, and not only was the burden of proof on them to show the amount realized on the assessment, but the duty is always upon a party having in his possession evidence or documents that will prove or disprove his claim, to produce the documents, or, if he can and does not produce them, the presumption is that they would not be favorable to his contention.

“And so it has become a well-established rule that, where evidence which would properly be part of a case is within the control of the party whose interest it would naturally be to produce it, and, without satisfactory explanation, he fails to do so, the jury may draw an inference that it would be unfavorable to him.” 10 B. C. L. 884.

The association had in its possession not only the records that Avould show the assessment made and collected after the death of the assured, but also had the records in its possession that Avould show the amount of the last assessment prior to the death of the assured. In this case it is unimportant to determine whether the beneficiary should receive the amount of the last assessment prior to the death of the assured, or the amount received from the assessment made subsequent to his death, because the association does not show the amount of either, and, as the burden of proof was upon the association to show the amount realized from the assessment and did not do so, the beneficiary is entitled to recover the sum named in the certificate. While the testimony showed that $500 was not realized from the assessment within 30 days, it does, not show how much money came in after the 30 days. Witness says that the money that comes in after the end of the month is put in a reserve fund to be paid out in cases where no assessment is made, but the benefit certificate provided for the payment of $500, provided that the liability of the association shall in no event exceed the amount produced by one assessment on the members of the circle in which said member may be placed, less the cost of collecting said assessment. That means the whole amount produced by one assessment, less the cost of collection, and it would be immaterial whether it came in before or after 30 days, and, since there no proof by the association showing the amount produced by the assessment, it is liable for the $500, the amount named in the certificate.

We think in this case the same principle, with reference to producing evidence, applies to the sureties on the bond. They could have produced evidence showing the amount of the assessment and the amount of the liability, but did not do so. No. claim for attorney’s fees or damages was made in the court below, and for that reason none will be allowed here. The evidence is ample to support the finding of the court, and the judgment is affirmed.


author: McHaney, J.

text:
    Browne-Hinton Wholesale Grocery Company v. Grubbs.
    Opinion delivered February 21, 1927.
    Dismissal and nonsuit — reinstatement—procedure.—Crawford & Moses’ Dig., § 6448, providing that a cause dismissed by a justice of the peace for want of prosecution may he reinstated by the justice under certain conditions, creates an exclusive remedy, and is applicable to the municipal court of Fort Smith, under Acts 1921, p. 259, § 7, and failure to observe such conditions will preclude plaintiff from prosecuting another suit based on the same cause of action.

      Appeal from Sebastian. Circuit Court, Fort Smith District; John E. Tatum, Judge;
    affirmed.

      W. L. Curtis, for appellant.

      Cravens & Cravens, for appellee.
   McHaney, J.

The appellant sued appellee in the municipal court of Fort Smith, on June A, 1925, for $173.95 on open account. Summons was issued and served on that date, and made returnable June 15, 1925. On the return day appellee appeared in person and by attorney, but appellant failed to appear either in person or by attorney, and the cause of action was dismissed by the court, on the motion of appellee, for failure to prosecute.

On the same day, June 15, appellant refiled its suit, based on the same cause of action on which summons was issued and served on said date, and made returnable June 25, 1925. On June 25 the case was continued to June 30, and tried on the latter date, resulting’ in a judgment for appellant in the siim of $168.43 with interest and costs.

Appellee appealed to the circuit court, and, on-October 9, 1925, moved the court to dismiss appellant’s cause of action, which motion was granted “for the reason that plaintiff (appellant) did not comply with § 6448 of Crawford & Moses’ Digest of the statutes of the State of Arkansas before instituting in the municipal court of the city of Fort Smith, Arkansas, a second suit on the same cause of action, the first srut having been dismissed on motion of the defendant for failure to prosecute.” From which comes this appeal.

The only question for decision by this court is whether a plaintiff who files a suit before a justice of the peace, or a municipal court with the jurisdiction of a justice of the peace, such as the municipal court of Fort Smith, and suffers a dismissal of such suit for failure to prosecute, may refile or institute and prosecute another suit on the same cause of action and ignore § 6448 of Crawford & Moses’ Digest. We hold that he cannot.

Section 6448 reads as follows: ‘ Judgment of dismissal for want of prosecution or judgment by defatilt may be set aside by the justice at any time within ten days after being rendered, if the party applying therefor can show a satisfactory excuse for his default, and a meritorious cause of action or a meritorious defense, whereupon a new day shall be fixed for trial, and notice given to the opposite party.; and any execution which may in the meantime have been issued shall be recalled in the same manner as in cases of appeal, and the cause shall proceed to trial as though no such judgment had been taken.”

The record in this case shows that appellant’s cause of action was dismissed in the municipal court for failure to prosecute; that it had notice of such dismissal is conclusively shown from the fact that, on the same day, it reinstituted its cause of action in the same court, without making any attempt to have the judgment of dismissal set aside, nor did it attempt to comply in any way with the provisions of said § 6448. In order to have complied with said section, and to have been entitled to reinstatement of his cause of action, the appellant would have been required, (1) to make an application to the municipal court, within ten days after the dismissal, to have the same set aside; (2) to show a satisfactory excuse for his default; and (3) a meritorious cause of action.

The municipal court of Fort Smith was created by act 203 of the General Acts of 1921 (Acts 1921, page 259), and § 7 thereof makes all provisions of the general law applying to justices of the peace and not inconsistent with the act applicable to that court. ■ Therefore § 6448 is applicable to the municipal court of Fort Smith.

In the case of Carroll v. Texport Oil Company, 148 Ark. 18, 228 S. W. 290, this- court, in construing this section of the Digest, used the following language:

“This § 6448, under which appellee proceeded, is a special statutory proceeding. It was not intended to deprive one of his right to have a judgment set aside as having been obtained by fraud, nor was it intended to affect one’s right of appeal. It was designed to afford relief to the litigant whose suit was dismissed for want of prosecution or against whom a judgment by default liad been taken where the litigant could show a satisfactory excuse for his delay and that he had a meritorious cause of action or defense. But this relief can be granted only where the litigant proceeds within the time limited by law, to-wit, ten days after the rendition of the judgment. This means that the party must file his motion and invoke the order of the court thereon within ten days.”

The remedy provided by this section of the statute is therefore exclusive, and the appellant, by failure to follow the remedy provided by the statute, is precluded from prosecuting another suit based upon the same cause of action.

It follows that the judgment of the circuit court must be affirmed, and it is so ordered.


author: Hart, C. J.,

text:
    Bank of Commerce v. Huddleston.
    Opinion delivered February 28, 1927.
    1. Municipal corporations — creation op improvement districts.— Improvement districts may be created in a city or town for the purpose of constructing waterworks and electric lights, and such districts may embrace the entire area of the city or town.
    2. Municipal corporations — public improvements — municipal Aid. —Where an improvement district embracing the entire area of a city is created for the purpose of constructing waterworks and an electric light system, such districts are not “private enterprises,” within Const., art 12, § 5, prohibiting cities and towns from loaning their money or credit in aid of private enterprises.
    3. Municipal corporations — aiding public improvement. — Where an improvement district was created, under Sp. Laws 1911, p. 375, for construction of waterworks and electric lights, and the amount realized from bonds authorized by such act was insufficient, the issuance of warrants by the city to complete the construction held not to violate art. 12, §. 5, of the Constitution, prohibiting the use of public money for private enterprises.
    4. Municipal corporations. — Power to construct water and light systems for municipal and domestic purposes may be conferred by the Legislature on municipalities, as was done by Crawford & Moses’ Dig., §§ 7564-5.

      5. Municipal corporations — conduct op water and light business. —As incident to the power to construct and maintain waterworks and a light system, a city or town may carry on the various businesses in which such public utilities are usually engaged, and may create a debt for that purpose.
    6. Municipal corporations — improvement district. — The erection and maintenance of a system of waterworks and electric lights constitute a public improvement which may be constructed by local assessments on real property specially benefited.
    7. Municipal corporations — contribution to public improvement. • — Where the general public shares to a greater or less extent in the benefits of a system of waterworks and electric lights, a city or town may contribute money to aid in the construction of such improvement, without violating the prohibition of Const., art. 16, § 1, against loaning its credit for any purpose whatever.
    8. Municipal corporation — illegal warrants — estoppel.—-Where a municipal corporation issued its warrants in. aid of a public improvement and thereby received the benefit of the completion of such improvement, it will be estopped to assert that the warrants were illegally issued, because the yeas and nays were not called and recorded.
    9. Municipal corporations — interest on warrants. — Where a city issued warrants to complete the construction of waterworks and an electric light system after the proceeds from the sale of bonds, authorized under Special Laws 1911, p. 395, § 39, were found to be insufficient, the holder of such warrants could not collect interest on same, in view -of Const., art. 16, § 1, forbidding the issuance by cities and towns of interest-bearing evidences of indebtedness.
    Appeal from Desha Chancery Court; E. O. Hammock, Chancellor;
    reversed.
    statement of facts.
    Ed Huddleston and others, owners of real property in the city of McGehee, brought this suit in equity against the city of McGehee and the officers thereof, the Bank of Commerce of the city of McGehee, and the McGehee Water and Light District, to enjoin the defendants from collecting any taxes from inhabitants of the city of McGehee to apply towards the payment of certain city warrants which were issued for the purpose of paying, in part, the cost of water and light plants which were constructed by the commissioners of an improvement district created for that purpose.

      The suit was defended on the ground that the warrants were legally issued and ■ that the Bank of Commerce is a bona ficle owner thereof for value.
    The facts, so far as they are necessary for a determination of the issues raised by the appeal, may be briefly stated as follows:
    The Legislature of 1911 passed a special act to create an improvement district within the corporate limits of the town of McGehee for the purpose of providing, constructing and maintaining a system of waterworks and electric lights for the town of McGehee. Acts 1911, p. 375. Section 1 provides that all real property within the corporate limits of the town of McGehee, Desha County, Arkansas, be created into an improvement district to be known as the McGehee Water and Light District. Section 12 provides that the board of commissioners be authorized to maintain and operate the plant after completion. The section further provides, first, for the payment of the indebtedness of the district, and then that the surplus shall be paid to the treasurer of the town of McGehee to be used and expended by it as any other of its revenues. Section 18 provides for the payment of the assessment of benefits in annual installments, and contains a proviso that no improvement shall be undertaken under the act which shall exceed in cost twenty per cent, of the value of the real property in such district, as shown by the last county assessment. Section 33 provides for additional assessments, if necessary, and also contains a proviso that the sum of all assessments levied by the board from year to year shall not exceed twenty per cent, of the value of the real property of the district. Section 39 provides that, for the purpose of constructing and maintaining a system of waterworks and electric lights, the board of commissioners may issue bonds not exceeding the sum of $30,000.
    The board of commissioners issued bonds to. the amount of $30,000 for the purpose of constructing a system of waterworks and electric lights, as provided by the act. It was ascertained that this sum of money was not sufficient- to carry out the purpose of the act. The city council of the town of McGehee then issued city warrants in the sum of $16,520 for the purpose of paying the McGehee Valley Bank the money which it advanced for the purpose of completing the water and light system. This was on March 31, 1913. The yeas and nays were not called when the vote on the resolution adopted by the city council 'authorizing the issuance of these warrants was passed. Warrants were reissued from time to time for the face value of the original warrants and the accumulated interest. It is stipulated that the amount of warrants now held, principal and interest, is $28,700, and all the warrants are dated January 2, 1922. The McGehee Valley Bank became insolvent, and its assets were taken over by the Bank of Commerce of McGehee, which was organized for that purpose. At various times the city paid toward liquidation of these warrants the sum of $5,500, and there remains due and unpaid the sum of $11,020 as the principal of said warrants. The balance of the $28,700 is for the accumulated interest.
    The chancellor was of the opinion that the act of the city of McGehee in issuing said warrants, under the cir: cumstances above stated, was ultra vires, and therefore void. A permanent injunction was issued in favor of the plaintiffs against the defendants, under the terms of which the Bank of Commerce was directed to file the warrants with the clerk of the chancery court to be canceled, and said bank was permanently enjoined from collecting any part of the indebtedness evidenced by said warrants. It was also decreed that the city of McGehee and the board of commissioners of the McGehee Water and Light District be permanently enjoined from paying any portion of the indebtedness evidenced by said warrants. To reverse that decree the Bank of Commerce of McGehee has duly prosecuted an appeal to this court.

      E. E. Hopson and Robinson, House & Moses, for appellant.

      Williamson & Williamson, for appellee.
   Hart, C. J.,

(after stating the-facts). As we have already seen, by special act of the Legislature, an improvement district comprising the whole of the territory of the town of McGrehee was created by the Legislature of 1911, for the purpose of constructing and maintaining a system of waterworks and electric lights for said town. For the purpose of constructing the improvement the commissioners of the district were authorized to issue bonds not to exceed $30,000. It was found that the commissioners could not complete the improvement for that amount, and McGrehee, which had become a city of the second class in 1913, issued city warrants in the sum of $16,520 for the purpose of completing the improvement. The McGrehee Valley Bank advanced the money and the warrants were turned over to it. The Bank of Commerce succeeded to the assets of the McGrehee Valley Bank and became the owner of the warrants.

It is sought to uphold the decree holding the warrants to be invalid, on the ground that their issuance was in violation of the provisions of art. 12, § 5, of our Constitution, which reads as follows: “No county, city, town or other municipal corporation shall become a stockholder in any company, association or corporation, or obtain or appropriate money for, or loan its credit to, any corporation, association, institution or individual.”

Under this section of our Constitution, public money or the public revenue cannot be used or pledged in aid of private enterprises. In no case originated by individuals, whether associated or not, or by private corporations with a view to gain, can municipal corporations participate in such manner as to incur pecuniary expense or liability. Municipal corporations may not become stockholders or furnish money or credit for the benefit of private enterprises. The object of the provision in the Constitution was to prevent municipal corporations from engaging in enterprises foreign to the purpose for which they were organized and assuming liabilities not within the compass of the usual and necessary powers of cities and towns. The question of the power of municipal cor-' porations to subscribe for or to loan its credit in the form of bonds in aid of railroad companies had been the subject of much litigation in other States, and the framers of -the Constitution enacted the section in question for the purpose of settling the question. Russell v. Tate, 52 Ark. 541, 13 S. W. 130; Newport v. Railway Co., 58 Ark. 270, 24 S. W. 427; and Luxora v. J. L. C. & E. Rd. Co., 83 Ark. 275, 103 S. W. 605.

In this State, improvement districts may be created in a city or town for the purpose of constructing waterworks and electric lights, and such districts may embrace the entire area of the city or town. Crane v. Siloam Springs, 67 Ark 30, 55 S. W. 955; and Wilson v. Blanks, 95 Ark. 496, 130 S. W. 517. The cost of the improvement is obtained by means of special assessments levied upon the real property within the limit of the district, and the commissioners thereof are charged with a public duty; and such districts are in no sense private enterprises. In McDonnell v. Imp. Dist. No. 145 Little Rock, 97 Ark. 334, 133 S. W. 1126, under a statute providing that no single improvement shall be undertaken which alone will exceed in cost twenty per cent, of the value of the real property in such district, it was held that the regulation was intended only to apply to the amount which could be assessed against the real property in the district and was not intended to limit the total cost of the improvement, where contributions from the city and county reduce the cost of the improvement within the specified percentage of the valuation of the realty within the district. It is evident that this holding would not have been made by the court if it had considered that the contribution made by the city or county contravened the clause of our Constitution above referred to. If the contribution, under the circumstances, -had been a violation of the Constitution, it would have been .illegal, and it could riot have had the effect of reducing the cost of the improvement within the limits provided by the statute. If such a contribution could be made directly by an appropriation of money, it could be made by the issuance of warrants, which would be nothing more than a direction to the city treasurer to pay the amount of money specified in the warrants to the holder thereof. Therefore we are of the opinion that the issuance of the warrants in question was not in violation of art. 12, § 5, of ofir Constitution.

It is next contended that their issuance was in violation of art. 16, § 1, of our Constitution, which reads as follows: “Neither the State nor city, county, town or other municipality in this State shall ever loan its credit for any purpose whatever; nor shall any county, city, town or municipality ever issue any interest-bearing evidences of indebtedness, except such bonds as may be authorized by law to provide for and secure the payment of the present existing indebtedness, and the State shall never issue any interest-bearing treasury warrants or scrip.”

We do not agree with counsel in this contention. As we have already seen, cities and towns may be organized under our statute for the purpose of constructing a system of waterworks and electric lights, and the whole area of the city or town may be embraced within the boundaries of such district.

Again, it is well settled that a system of waterworks and electric lights may be constructed by cities and towns themselves and paid for by general taxes. The power of constructing waterworks and lighting the streets and other public places of cities and towns by electricity is conferred by statute. Crawford & Moses’ Digest, §§ 7564-7565. Water and light are essential to the welfare of a city or compactly settled municipality. Therefore the power to construct and maintain a system of waterworks and electric lights for municipal and domestic purposes may be conferred by the Legislature upon such municipalities. 2 Dillon on Municipal Corporations, 5th ed., § 1296; and 4 McQuillin on Municipal Corporations. $§ 1781-85.

The general purpose of conferring upon municipal corporations power of the legislative and administrative functions of the State was to enable them to provide for water, light and other conveniences necessary to the health and comfort of the inhabitants; and, as an incident to the power conferred, the municipalities themselves may carry on the various businesses in which such public utilities are usually engaged. When the city is authorized to construct waterworks and electric lights, it may necessarily create a debt for that purpose. Such a use of the corporate credit is for a public purpose, and is not the loan of the credit of the municipality.

There is nothing in the transaction in question Avhich contravenes art. 16, § 1, of the Constitution. The city of McGehee, in effect, expended the amount of money evidenced by the warrants issued by it to help build a system of waterworks and electric lights, which were being constructed under an improvement district legally organized under the statute. The city did not thereby loan its credit or become security, directly or indirectly, for any person or corporation, or for any purpose. It simply stipulated that it would pa3^ a certain part of the cost of construction of a S3^stem of waterworks and electric lights, which were being constructed by a public agency and not by a private corporation or association of individuals. The issuance of the warrants was for a public purpose, and not in aid of any private enterprise. The city did not loan its credit for any purpose, within the meaning of the Constitution. It merely contributed a part of its public revenue for a public purpose. It will be noted that the statute in question provides that the system of waterworks and electric lights may ultimately become.the absolute property of the city. The statute directs that the revenues derived from supplying water and light to the inhabitants of the city shall first be appropriated to the payment of the cost of constructing and maintaining the system. A sinking fund is provided, and the unexpended revenue derived from the operation of the waterworks and electric lights is then placed in the city treasury, to be expended in the same manner as the general revenue of the city.

In Town of Klamath Falls v. Sachs, 35 Ore. 325, 57 Pac. 329, the Supreme Court of Oregon held that, under a statute authorizing a municipal corporation to furnish itself with a water system, it may enter into an executory contract looking to the acquirement of a water system, even though it does not become the present absolute owner. ,

The principle was also recognized in Forrest City v. Bank of Forrest City, 116 Ark. 377, 172 S. W. 1148, in which it was held that a municipal corporation has the right to borrow money to purchase necessary machinery for constructing and taking care of its water supply, and to pay the cost of moving its pumping station, and will be liable to the lender on notes given for the money so borrowed.

The erection and maintenance of a system of waterworks and electric lights constitute a public improvement which may be constructed by local assessments on the real property specially benefited. It may also happen that the general public shares to a greater or less extent in the benefits, and, when that happens, the city may contribute towards the construction of the improvement. McDonnell v. Imp. Dist. No. 145, Little Rock, 97 Ark. 334, 133 S. W. 1126; Dean v. Moore, 112 Ark. 254, 165 S. W. 639; and Mullins v. City of Little Rock, 131 Ark. 59, 198 S. W. 262. These cases hold that public funds of a city may be contributed by the city in order to complete a public improvement which has been constructed in part by the commissioners of an improvement district. This is practically what was done in the case at bar, and we are of the opinion that the transaction, when considered according to its substance, does not contravene art. 16, § 1, of our Constitution.

It is next insisted that the resolution authorizing the issuance of the warrants was not passed in the manner prescribed by the statute, because the yeas and nays were not called and recorded. As we have already seen, it was within the power of the municipality to issue the warrants and to receive the benefits of the transaction in. the completion of the public improvement. Under these circumstances it is estopped from asserting that the warrants were not legally issued. Forrest City v. Orgill, 87 Ark. 389; and Natural Gas & Fuel Co. v. Norphlet Gas & Fuel Co., 173 Ark.-, and cases cited.

It is next contended that, in any event, the collection of interest on the warrants cannot be had. In this contention we think counsel are correct. Article 16, § 1, of the Constitution in plain language provides that no county, city or municipality shall ever issue any interest-bearing evidences of indebtedness except in certain cases, which do not affect the case at bar. In the consideration of this provision of the Constitution, in Forrest City v. Bank of Forrest City, 116 Ark. 377, 172 S. W. 1148, it was held that, where a municipal corporation borrowed money for a purpose authorized by statute, and gave an interest-bearing note therefor, the provision in the note calling for the payment of interest is in excess of the authority of the city council, and may be regarded as surplusage. See also Gould v. Davis, 133 Ark. 90, 202 S. W. 37, and cases cited.

The result of our views is that the holder of the city warrants in question is not entitled to collect interest on the warrants, but is entitled to the face value of the warrants themselves, which the evidence shows to be $11,020. It follows that the decree will be reversed, and the cause will be remanded with directions to the chancery court to enter a decree in accordance with this opinion, and for further proceedings in accordance with the principles of equity.


author: Smith, J.

text:
    Vanhoose v. Yingling.
    Opinion delivered February 28, 1927.
    1. Officers — eligibility—payment of poll tax. — 'Payment of a poll tax is essential to constitute one an “elector” so as to be eligible to hold office, under Const., art. 19, § 3, and Arndt. 6, unless he became of age after the time for assessing the poll tax.
    2. Mandamus — control of officer’s discretion. — The prosecuting attorney may be compelled by mandamus to institute ouster proceedings against one who usurps a county office, under Crawford & Moses’ Dig., § 10327, only where honest judgment, intelligently exercised, can lead to one conclusion only — that the officer 'is ineligible — in which case there is no discretion.
    3. Mandamus — ouster proceeding — discretion of prosecuting attorney. — The prosecuting attorney cannot be compelled by mandamus to institute ouster proceedings against one holding the sheriff’s office, under Crawford & Moses’ Dig., § 10327, for failure to pay his poll tax, though such sheriff was not assessed by the assessor, and his name was placed on the tax-books after they were delivered to the collector, since, in absence of proof to the contrary, he may have paid his poll tax under an assessment pursuant to § 3738, Id.

    Appeal from Woodruff Circuit Court, Central District; E. D. Robertson, Judge;
    affirmed.

      Avery M. Blount, for appellant.

      J. F. Summers and Ross Mathis, for appellee.
   Smith, J.

This is a proceeding by certain citizens and taxpayers of Woodruff County to mandamus the prosecuting attorney of the district of which Woodruff County is a part to institute proceedings to oust A. C. McGregor, the sheriff of that county, from office, upon the ground that the incumbent was ineligible to hold it.

The complaint recites the evidences submitted to the prosecuting attorney tending to show that McGregor was ineligible to hold the sheriff’s office. These included a certificate of the tax assessor to the effect that McGregor had not -been assessed by him. Another instrument filed with the prosecuting attorney was a certificate showing a list of names of persons added to the taxbooks who had paid poll taxes. McGregor’s name was included in the list, and attached to this list was the following certificate of the clerk of the county court: “I, Bill Rives, clerk of the county and probate court and ex-officio recorder in and for the county and State aforesaid, do hereby certify that the above named parties shown to have been added to the personal taxbooks for the year 1923, after said tax-books had been delivered to the sheriff of "Woodruff County for the collection of taxes for the year 1923.”

A demurrer to the complaint was sustained, and it was dismissed, and this appeal is prosecuted to review that .judgment.

Payment of a poll tax is essential to constitute one an elector, unless he came of age after the time for assessing a poll tax. And one must be an elector to be eligible to hold a county office. Amendment No. 6 to the Constitution.

It is the duty of the prosecuting attorney to institute suit against one who usurps a county office. Section 10327, C. & M. Digest; State v. Tyson, 161 Ark. 42. 255 S. W. 289.

For the affirmance of the judgment of the court below it is insisted that the duty to institute an appropriate action against the usurper of a county office rests upon the prosecuting attorney, and that he has a discretion to determine when such an action shall be brought, and that this discretion will not be controlled by mandamus.

It is the law that, when a public officer has a discretion as to the circumstances under which he will exercise an official function, this discretion cannot be controlled by mandamus; but, if his duty is plain and certain, no discretion abides,' and, if he refuses to discharge that duty, he may be compelled by mandamus to act. Fraser v. Keck, 146 Ark. 255, 225 S. W. 325, and cases there cited.

A general statement of the law as applied to the facts of this case is as follows: The prosecuting attorney has the discretion to determine for himself whether a county officer is usurping the office, and, if he concludes that there is no usurpation under the facts as he finds them to be, he is under no duty to act because some citizen, on the same state of the facts, has reached a different conclusion as to the eligibility of the officer. But, where an honest judgment, intelligently exercised, can lead to only one conclusion, and that conclusion is that the officer is not eligible to hold the office, then there is no discretion, because the officer whose duty it is to act can then only determine whether he will obey the law and perform his duty, or will ignore the law and leave his duty unperformed. No such discretion as this is vested in any officer, and, under such circumstances, the prosecuting attorney may be compelled to act.

From the facts which we have stated it does not necessarily and certainly appear that McGregor was ineligible to hold the office. He may have paid his poll tax and thus qualified himself to hold office.'

In the case of Cain v. CarlLee, 168 Ark. 64, 269 S. W. 57, it was held that a person who had not been assessed by the assessor might, by complying yith § 3738, C. & M. Digest, have his name placed upon the taxhooks, and, by paying his poll tax, become a legal voter, but that this section must be complied with, this compliance being necessary, not only to protect the revenue, but to prevent fraud in elections.

McGregor may have complied with the requirements of this section, so far as the evidences submitted to the prosecuting attorney show to the contrary. These evidences show only that McGregor was not assessed by the assessor, and that his name was placed on the tax-books after the books had been delivered to the collector. This may all be true, but, if McGregor appeared before the county clerk, as he was authorized to do by § 3738, C. & M. Digest, and was assessed, the poll tax paid by him on this assessment was valid and qualified him as an elector. It affirmatively appears that McGregor paid his taxes, and it does not affirmatively appear that he was not assessed pursuant to § 3738 of the Digest, as that statute was construed in the case of Cain v. CarlLee, supra. It only appears that his name was placed on the taxhooks after the books had been delivered to the collector, and, as we have seen, this does not show that the poll tax was not properly paid.

It was therefore within the discretion of the prosecuting attorney to decline to institute a proceeding against McGregor for usurpation of the office of sheriff, and the demurrer was therefore properly sustained, and the judgment is affirmed.


text:
    Vanhoose v. McGregor.
    Opinion delivered February 28, 1927.
    . Oppicers — usurpation op opfice — parties.—Crawford & Moses’ Dig., chap. 175, relating to usurpation of office, does not authorize private citizens to bring suit to oust a usurping county officer; the only persons authorized to bring such suits being the defeated candidate and the prosecuting attorney.
    Appeal from Woodruff Circuit Court, Southern District; E. D. Robertson, Judge;
    affirmed.

      Avery M. Blount, for appellant.

      J. F. Summers and Ross Mathis, for appellee.
   Humphreys, J.

Appellants, private citizens of Woodruff County, instituted this suit against appellee in the circuit court of the Southern District of said county to oust him from the office of sheriff and collector, upon the alleged ground that he was not qualified to hold the office by reason of the fact that he was not a qualified elector at the time he was a candidate for the office, or at the time he received his commission; that he had failed to assess his taxes, both poll and personal, for the year 1923, and that he had failed to be assessed as delinquent, but that his name was added to the poll-tax payers’ list of Woodruff County by the tax collector. As an excuse for instituting the suit in their own names, they alleged that the prosecuting attorney of the district and the Attorney General of the State of Arkansas had refused to bring suit to test his right to hold the office, or to allow their names to be used for that purpose.

Appellee filed a demurrer to the complaint, alleging defect of parties plaintiff, and challenging the 'sufficiency of the complaint to state a cause of action, and also filed an answer denying the material allegations of the complaint. Appellants filed a motion, which was overruled by the court, to require appellee to elect whether he would stand upon his demurrer or upon his answer.

The cause was then submitted to the court upon the pleadings and the testimony adduced by the respective parties, with the result that the court found that appellee, at the time of his election and prior thereto, had legally assessed as required by law and was a qualified elector, and that the demurrer of appellee to the complaint was well taken, and should be sustained. A judgment was rendered in accordance with the findings, from. which is this appeal.

This action was brought under chapter 178 of Crawford & Moses ’ Digest, which provides against the usurpation of office. The statute does not confer authority upon private citizens to bring the suit. The only proper parties to the suit to oust one who has usurped a county office are the defeated candidate and the prosecuting attorney. The demurrer was properly sustained to the complaint on account of a defect of parties.

The judgment is affirmed.


text:
    Lammers v. American Southern Trust Company.
    Opinion delivered February 28, 1927.
    1. Covenants — breach op warranty op title — complaint.—In an action for breach of warranty of title, a complaint-which alleges neither an eviction nor a total failure of title is demurrable.
    2. Fraud — misrepresentation—jury question. — In an action for false representations, evidence held sufficient to make it a jury question whether false representations as to the rents to be received were made to plaintiffs for the purpose of inducing them to buy the property, and whether the representations had that effect.

      3. Fraud — when actionable. — For representations to be fraudulent in law, they must be material to the contract or transaction, and must be made by one who either knows them to be false, or, not knowing, asserts them to be true, and made with the intent to have the other party act upon them to his injury, and such must be their effect.
    4. Fraud — liability for misrepresentation — instruction.—In an action for false representations, an instruction that plaintiffs, to recover, must show that defendants made false representations, or else, not knowing.whether true, asserted them to be true, with the intention of deceiving plaintiffs, and on which they acted, held erroneous, since, under the instruction, one would be responsible for misrepresentations whether he intended to deceive the party to whom they were made or not, provided such party acted thereon and had a right to rely thereon.
    Appeal from Pulaski Circuit Court, Second Divi.sion; Richard M. Maim, Judge;
    reversed.

      J. E. Ray, for appellant.

      Henry E. Spitzberg, for appellee.
   Humphreys, J.

Appellants brought this suit against appellees in the circuit court of Pulaski County to recover $300 and interest upon the following grounds:

First. Upon the alleged breach of warranty of title to lots 10 and .11, block 1, Pulaski Heights Addition to Little Rock, Arkansas.

Second. Upon fraudulent misrepresentations concerning the terms of an existing lease upon a part of said property held by the Cox Stores, which they had procured from a former owner thereof.

A specific demurrer was filed by appellees to the first cause of action, and was properly sustained by the court, over appellants’ objection and exception, upon the ground that neither an eviction nor a total failure of title was alleged.

Appellees filed an answer to the complaint denying the material allegations of' fraud.

The cause was submitted upon the pleadings, testimony adduced 'by the respective parties, and instructions of the court, which resulted in a verdict for appellees, and a consequent judgment dismissing appellants’ complaint, from which is this appeal.

Appellants’ first contention for a reversal of the judgment is that the undisputed testimony showed that it was represented to them by appellees that Cox Stores held a lease upon part of the property by the terms of which they were to pay $60 per month for the use thereof for a period of five years from the date of the lease, which induced them to purchase the property; whereas, it -contained a provision authorizing the Cox Stores to make two deductions of $150 each, with interest, from the rents, one October 21, 1924, and the other June 1, 1925, which they were required to pay. A. B. Lammers, one of the appellants, testified on direct examination that George F. Walz, who acted for appellees in selling him said property, represented to him as a fact that he would get $60 a month out of the Cox Stores lease if he bought the property; that witness relied on this statement in making the purchase, and would not have bought the. property had he known of the rent deduction clause in the lease. Witness said, on cross-examination, that Walz’ statement as to the rent was not the thing that induced him to buy the property; that, before the abstract had been completed, he went to see Mr. Cox about the lease, and was informed by him that he was to pay $60 a month for the property; that he did not ask Mr. Cox to see the lease, or for a copy of the same at that time.

G. F. Walz testified that he had received information from a former -owner of the property and from Mr. Cox that Cox had leased the property and was to pay $60 a month for it; that he understood the amount of $60 would be paid for the remainder of the lease term; that he told appellants where he had received the information, and that he had no personal knowledge of the terms of the lease; that Cox was occupying the property at the time he sold it to Lammers; that he had no intention whatever of misrepresenting the terms of the lease, and was as much surprised as appellants when a copy of the lease was procured by them, showing the rent reduction clause therein; that he did not represent as a fact that appellants would get $60 a month if they bought the property, but did say he had received such information from Cox and the former owners.

J. C. Brittain testified that he tried to get a copy of the lease for appellants, but was unable to do so before the sale 'was consummated. .

The rule governing fraudulent representations was accurately laid down in the case of Cotner v. Bangs, 137 Ark. 397, 209 S. W. 81, in the following language:

“The law upon the subject has been frequently announced in numerous decisions of this court, and is as follows: ‘In order for representations to be fraudulent in law, they must be material to the contract or transaction, and must be made by one who either knows them' to be false, or else, not knowing’, asserts them to be true, and made with the intent to have the other party act upon them to his injury, and such must be their effect. ’ ’ ’

We think the record presents a disputed question of fact, under this rule, as to whether Walz knowingly misrepresented the terms of the lease, or, not knowing, asserted as a fact that appellants would receive $60 a month under the terms thereof during the lease period, for the purpose of inducing appellants to buy the property, and that the misrepresentations had that effect. Appellants were not therefore entitled to a directed verdict for the amount for which they sued appellees.

Appellants also contend for a reversal of the judgment because the court instructed the jury that, before they could recover, it would be necessary for them to show that appellees made false representations, or else, not knowing whether true, asserted them to be true with the intention of deceiving them.

Appellants are correct in this contention, for, under the rule, one would be responsible for misrepresentations so made, whether he intended to deceive the party to whom made or not, provided the party acted upon and had a right to rely upon the representations. The cause should have been submitted to the jury under instructions drawn in accordance with, the rule announced in the case of Cotner v. Bangs, supra, and approved in the cases of Wood v. Jones, 151 Ark. 619, 237 S. W. 99, and Bell v. Fritts, 161 Ark. 371, 256 S. W. 53.

On account of the error indicated the judgment is reversed, and the cause is remanded for a new trial.


text:
    Chicago, Rock Island & Pacific Railway Company v. George E. Shelton Produce Company.
    Opinion delivered February 28, 1927.
    1. Carriers — connecting roads — presumption of negligence. — In the absence of evidence locating the damage to goods in transit, a prima facie presumption arises that the last carrier is the negligent one.
    2. Carriers — failure to re-ice car. — A. delivering carrier’s failure to re-ice a car of perishable freight received by it with knowledge that there was no messenger in charge, and that it had been iced two days previously, constituted negligence, making it liable for resulting damages, unless relieved of duty to re-ice by the terms of the bill of lading.
    3. Carriers — duty to re-ice car. — A delivering carrier is authorized by the perishable protective tariff of the Interstate Commerce Commission to re-ice a car of bananas in the usual way, where the messenger, without notice to the consignor or consignee, left the train without leaving directions for re-icing, and hence the carrier was not relieved from liability for damage from its failure to do so, without making any effort to procure instructions from the owner in accordance with ordinary procedure.
    Appeal from Pulaski Circuit Court, Second Division; Richard M. Mcmn, Judge;
    affirmed.
    STATEMENT BY THE COURT.
    Appellee brought this suit against appellant for damages alleged to have been caused by its negligence in failing to re-ice a carload of bananas shipped to it at Little Rock, Arkansas, from the Honduran Fruit & Transportation Company of Mobile, Alabama.
    The appellant denied any negligence, carelessness or delay in handling the banana shipment, and that it negligent^ failed to keep the car properly iced, and pleaded especially that shipment was made under a uniform bill of lading approved by the Interstate Commerce Commission, and under the provisions of perishable protective tariff No. 2, which it alleged was in effect, and set out rule No. 105 of said tariff, relating to the refrigeration and ventilation of cars containing perishable commodities, as follows:
    “Bananas, cocoanuts, and pineapples in carloads must not be iced, re-iced, ventilated or given other protective service against heat or cold without specific instructions from shipper, owner or caretaker in charge of cars.
    “All such protective service to be furnished to bananas, cocoanuts and pineapples in transit will be governed by the shipper’s instructions on the billing, subject to contrary instructions from caretaker in charge, and the caretaker’s instructions when he abandons the car shall be given by him in writing and attached securely to the waybill to accompany the car to ultimate destination. In the absence „of a caretaker in charge of car, or if caretaker abandons car without giving necessary instructions, the shipment shall be subject to' such changed instructions as may be given by the owner.”
    “That, under the provisions of said rule, the carrier was not permitted to supply ice to the shipment in the absence of specific instructions from the shipper or caretaker to do so. And that the damage resulted to the shipment of bananas from the shipper’s failure to perform his duties relative thereto, for which defendant was not liable.”
    The bananas were shown to have been loaded in good condition and in the customary way. The car was shipped via the L. & N. Railway Company from Mobile, with memorandum notation on the bill of lading and the waybill, “Iced 3 tons, Mobile. Messenger to re-ice when necessary. Messenger in charge.” It arrived in Little Rock over the line of appellant at 5:45 a. m. on the morning of the 17th of June, 1923, and was delivered by it on the morning of the 18th to appellee’s unloading’ track.

      It is undisputed that the car of bananas was damaged in the amount claimed by lack of ice in the bunkers, or a failure to re-ice the car when necessary. The car was re-iced at Birmingham, Alabama, on the 14th of June, the waybill showing notation, “For re-icing above car at Birmingham, Alabama, messenger instructions,” and. it was not re-iced thereafter, and the messenger left the car at Birmingham, Alabama, was not on the train carrying this car any more thereafter. There was no communication between the messenger and the railway company, and none between the owner or the shipper and the railway company, until after the arrival of the car in Little Rock, and the car was transported from Memphis to Little Rock without delay on the first available train after it was received by appellant company. Notice of the arrival of the car was mailed to appellee at 10:20 a. m. on the 18th.
    George Shelton, president of appellee company, stated he was at his place of business as late as 6 o’clock on the evening of June 17, the day the shipment reached Little Rock, and that he got notice of its arrival Monday morning, June 18, about 10 o ’clock, after he had noticed the car on his unloading track about 6:30 that morning. He also stated the cause of the damage was lack of ice, and that there is a regular icing station at Hulbert, which is just across the river from Memphis about four, or five miles.
    The conductor of the train testified about the way-, bills and the notations, and stated that he knew the messenger was not on the car after the train left Hulbert, which is one of the company’s regular icing stations, where he got the car from the Frisco, and that he never saw the messenger at all. He was not on his train, and the car was not re-iced at Hulbert, so far as he knew.
    Rule No. 105, as pleaded and set out in the complaint, was introduced in evidence, and also paragraphs (B), ('C), (E), and (F), rule 225, % No. 2 of the tariff, which read as follows:

      “Paragraph (B) under rule 225, § No. 2 of Tariff-Service at Destination — (Will not apply at destinations in Canada). After arrival of a car in the terminal train yard serving' the destination, and up to the time the car is in process of unloading on team tracks, or until car has been placed on private or assigned siding, carriers will examine bunkers or tanks daily, and when such cars require additional ice during such period they will be re-iced to capacity. However,, after the unloading on team tracks has been commenced, any additional re-icing will be furnished only on written instructions from shipper, owner or consignee.
    “(C) of same Rule. — Non-acceptance of instructions to re-ice: No instructions whatever will be accepted from shippers, owners or consignees for the re-icing of cars at any intermediate stop, hold or reconsigning point, nor at final destination before shipment is in process of unloading on team track nor before it has been placed on private or assigned tracks. Written instructions will be accepted by the carrier reading’ 'Do not re-ice car’ at destination after delivery has been accepted.
    “(E) of same Rule. — Charg’e for icing at destinations : A charge as provided in § No. 4 of tariff as amended, for all ice supplied after arrival of cars in train yards serving the final destination, without allowance for free time, will be made and collected from consignee in addition to all other charges. (See Paragraph F).
    “(F) of same Rule. — Bunkers three-fourths full upon arrival in train yards: Carriers will deliver cars in train yards serving intermediate stop points and destination with bunkers three-fourths (%) or more full of ice. If and when to accomplish this result at intermediate stop points and destination such cars are re-iced, they will be re-iced to capacity. Bills for ice so supplied will be rendered against carrier to which the refrigeration revenue is credited.”
    Section No. 4 provides: “If shipper fails or neglects to give in shipping order and/or bill of lading one of the notations provided in paragraph ‘B ’ above, the carriers will re-ice car at all re-icing stations (if ice has previously been used), using salt if same has been previously used, and charges for such service will be on basis of the table of charges in this section. Exception: See Rule No. 105).”
    A jury was waived, and the cause was tried by the court, which found that, under the rules of the tariff, the particular shipment would require icing at sufficient times, or in the necessary and established manner, a failure to do which would render the railway company liable for the damages; that, under the testimony, it was liable, and rendered judgment for the sum claimed, with interest, from which this appeal is prosecuted.

      Thos. S. Busbee, H. T. Harrison and Geo. B. Pugh, for appellant.

      Mehaffy & Mehaffy, for appellee.
   Kirby, J.,

(after stating the facts). The undisputed testimony shows that the shipment of bananas was properly loaded and in good condition when it left Mobile on the 13th of June; that it was re-iced afterwards only at Birmingham, Alabama, on the 14th of June. It was received by appellant from the connecting carrier at Hulbert, and left there on its train at 10 o’clock on the evening of the 16th; arrived in Little Rock on the morning of the 17th, and delivered to appellant’s unloading track on the morning of the 18th, notice of delivery having been received by it at 10 o’clock of that day. The bananas were then in a heated and damaged condition because of lack of refrigeration, due to the carrier’s failure to re-ice the car either at Hulbert or upon its arrival in Little Rock, the day before its delivery.

A prima facie presumption arises that the last carrier is the negligent one, in the absence of evidence locating the damage to goods in transit over several connecting lines. St. L. I. M. & S. R. Co. v. Coolidge, 73 Ark. 112; H. Rouw Co. v. St. Louis-San Francisco Ry. Co., ante, p. 881.

The evidence discloses here however that the court found that the damage resulted from failure to re-ice the car after it came into appellant’s possession, with the knowledge that there was no messenger in charge, and-the shipment was last iced at Birmingham, Alabama. Such failure constituted negligence maldng the carrier liable to the payment of any resulting damages, unless it was relieved of the duty to re-ice the car by the terms of the contract of shipment, the bill of lading.

It was known by the connecting carrier transporting the car from Birmingham that it had been re-iced there, according to the directions of messenger, who was not on the train thereafter, and it was not shown whether he left further directions' as to re-icing the car. Neither was it shown that the consignor or the consignee had any notice or information that the messenger was no longer on the train in charge of the shipment; that instructions could be had from them as to re-icing if the necessity therefor arose, in the absence of instructions from the messenger relating thereto.

We think that the tariff provides for this contingency, and authorizes the carrier to re-ice the shipment in the. usual and customary way under such condition, and make the proper charge therefor. Certainly the delivering carrier cannot relieve itself from liability to the payment of the damage arising from its failure to re-ice the car under the circumstances of this case.

It is equally as liable for damages resulting from its negligence for failure to do so as though no messenger had accompanied the car in the first instance, and especially since none of the carriers, after knowing that the messenger had abandoned the shipment, made any effort to procure instructions from the owner about re-icing it, notwithstanding that, in accordance with their ordinary procedure and the care required of them in transportation of freight, they would have been required to do so.

We find- no error in the record, and the judgment is affirmed.

Mehaeey, J., disqualified.


text:
    Citizens' Bank of Booneville v. Clements.
    Opinion delivered February 28, 1927.
    1. Banks and banking — contract of guaranty. — The guaranty by a bank, -without benefit to itself, of the debt of another, in which it has no interest, is beyond its powers.
    2. Banks and banking — contract of guaranty. — If-a contract of guaranty is for a bank’s own protection or is incident to the transaction of its own business, or for its own benefit, it may give a guaranty. '
    3. Banks and banking — contract of guaranty — jury question.— Whether a bank had such an interest in the business of a customer as would authorize it to guarantee the customer’s contract held, under the evidence, for the jury.
    4. Banks and banking — authority of cashier — jury question.— Whether a bank cashier had authority to make a contract guaranteeing the debt of a customer of the bank held a question for the jury.
    Appeal from Logan Circuit Court, Southern District; James Cochran, Judge;
    reversed.

      Kincannon $ Kincannon and Evans S Evans, for appellant.
    I. J. Friedman and John D. Arbuckle, for appellee.
   McHaney, J.

Appellee,'Charles Clements, instituted this action against appellant to recover on a written contract between the parties whereby appellant undertook to guarantee the payment of a sum of money not to exceed $1,000, due by Booneville Marble & Granite Works of Booneville, Arkansas, to appellee. The contract is as follows:

“Booneville, Arkansas, May 31, 1922.
“To Chas. Clements,
258 Boyleston St.,
Boston, Mass.
“We, the Citizens’ Bank, guarantee the payment of a sum not to exceed $1,000, one thousand dollars, payment for monument No. Clements 60772, purchased by the Booneville Marble & Granite Works of Booneville, Ark., on the following conditions: That the monument is to be cut strictly in accordance with the blue-prints approved by the said Booneville Marble and Granite Works and submitted to the above named Charles Clements for the execution of same.
“Further, that this amount shall cover all expenses connected with the purchase of material of which the monument is to be cut, also the material for a marker ordered this date. All monument and marker to be loaded on board cars at Boston, Mass.
“The Citizens’ Bank understands that the purchase price for this work is not due until a period of sixty days from date of invoice with bill of lading.
“Citizens’ Bank,
“By Chas. X. Williams, Cashier.”
Written at bottom with pencil: “4/27/23. New draft for $464.17.
“Made and passed to Inter. T. Co. to be collected and sent along with the $500 check.
“4/27/23.
“Check for $500 passed Inter. Trust Co. for collection. ’ ’

Appellant is a banking corporation of Booneville, and is engaged in the business of operating an ordinary bank. Charles X. Williams was its cashier, and had authority from the board to perform the usual and customary duties of cashier, and to make loans and discount paper for the bank up to $1,000 at that time. Later his authority in this regard was reduced to $500. There was no meeting of the board to authorize the cashier to execute this contract, and no officer or director, except the cashier, had any knowledge that it had been executed, until about the time this suit was brought, and no specific authority .was ever given by the board or any officer to the cashier to execute same.

Appellant defended on the ground that its cashier had no authority to make such a contract, and that his doing so failed to bind the bank.

At the conclusion of the testimony the court directed a verdict for appellee for the balance due in the sum of $464.17, with interest, and the bank has appealed.

The articles of incorporation of the Citizens’ Bank of Booneville were not offered in evidence, and we cannot know just what the general nature of the business of the corporation is, as set forth therein. But we do know that the powers of a banking corporation and its officers have been very much limited and circumscribed ■by the Legislature during the past few years. As an example, § 695 of Crawford & Moses’ Digest prohibits a bank from engaging in trade or commerce and from buying its own stock. Many other provisions of law are made for the protection of stockholders and depositors. Section 700 reads as follows: “The president, cashier or other officer or employee shall have no power to indorse, sell, pleclg-e or hypothecate any notes, bonds or other obligations received by said corporation for any money loaned until such power and authority shall have been given such president, cashier or other officer or employee by the board of directors, a written record of which proceeding shall first have been made; and all acts of indorsing, selling, pledging and hypothecating done by said president, cashier or other officer or employee, without the authority from the board of directors, shall be null and void. ’ ’

While.this section was amended in 1923, it was the law when the contract in controversy was executed. It is difficult to perceive why the officers of a bank should be prohibited by law from transacting the business enumerated in this section without first getting authority from the board, a record of which must be made, and yet permit the cashier to bind the hank by guaranteeing the debt of another, which, apparently, is in no way connected with the bank’s business, without authority of the board. When we consider the interest the depositors have in the success of the bank, and the interest of the stockholders, due to their hope of profit and the imposition of double liability, in the event of insolvency, we can readily see that the law should circumscribe, limit, and restrict the powers of the officers to involve the stockholders and depositors in hazardous undertakings.

It is the rule in this State, and is the general rule laid down by the authorities, that “the guaranty by a bank, without benefit to itself, of the debt of another, in which it has no interest, is beyond its powers.”

Mr. Miehie, in his work on Banks and Banking, vol. 1, p. 681, says: “The guaranty by a bank, without benefit to itself, of the debt of another in which it has no interest, is beyond its powers. For a bank has no power to make a guaranty except for the protection of its own rights, or as an incident to the transaction of its' own ■business, unless specially authorized by law. But for its own protection or incidentally to transacting its own business, it may give a guaranty.’ ’

A long list of cases is cited by the author to support this declaration of law.

Again, the same author, on page 745, § 105, uses this languag-e: “A bank has no authority to lend its credit; hence it is not within the power of the cashier to bind- it upon a contract of guaranty or suretyship for the accommodation of third persons and with respect to matters in which it has no interest. ’ ’

In vol. 3 jR. C. L., ^ -53, page 425, it is said: “A banking corporation cannot lend its credit to another by becoming surety, indorser or guarantor for him. It cannot, for the accommodation of another, indorse his note or guarantee the performance of obligations in which it has no interest. Such an act is an adventure beyond the coniines of the banking business, and, when its true character is known, no rights grow out of it, though it has taken on in part the garb of a lawful transaction; and this applies to national banks.”

But, if the contract of guaranty is for the bank’s own protection, or is incidental to the transaction of its own business or for its own benefit, it may give a guaranty.

This court recently had this same question under consideration in the case of Bank of Morrilton v. Skipper, Tucker Company, 165 Ark. 49, 263 S. W. 54, and, in substance, held that the bank had authority to execute a contract of guaranty if it was for its own benefit in the prosecution of its authorized business. The court, on page 57, used this language: “The court properly submitted to the jury the question of the authority of appellant, as a banking institution, to execute the contract of guaranty, on the ground that it was a contract for its own benefit in the prosecution of its authorized business. There was no error in that regard.” '

We think it is fairly deducible from the evidence that the members of the partnership known as the Booneville Maride & Granite Works were customers of the bank, and that perhaps the bank might have had some interest in making this contract of guaranty, although it is not definitely shown by the evidence in this case, and that this was a question for the jury to determine on proper instructions from the court, both as to the authority of the cashier to make the contract in the first instance, and as to whether the contract of guaranty was for its benefit in the prosecution of its authorized business.

The circuit court therefore erred in directing a verdict for the plaintiff, and the judgment will therefore be reversed, and the cause remanded for a new trial.

It is so ordered.