author: McCulloch, C. J. Smith, J.,

text:
    Farris v. Wright.
    Opinion delivered May 7, 1923.
    1. Statutes — extension of prior statute. — Under art. 5, § 23, Const., prohibiting the extension of the provisions of a law by reference to its title only, held when a new right is conferred or cause of action given, the provision of the Constitution quoted requires the whole law governing the remedy to be reenacted in order to enable the court to effect its enforcement; but if the statute is original in form, and by its own language grants some power, confers some right or creates some burden or obligation, it is not in conflict with the Constitution, although it may refer to some other existing statute for the purpose of pointing out the procedure in executing the power, enforcing the right or discharging the burden.
    2. Statutes — reference statute — extension of prior statute.— Acts 1923, No. 317, entitled “An act to abolish tenancy by the curtesy,” held void as an attempt .to confer a substantive right or interest by reference merely.
    Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor;
    affirmed.

      Robert D. Lee, for appellant.
    It is necessary, under this act abolishing the right of curtesy, for 'the husband to join in her conveyance of her property acquired after the passage of this statute. This law gives the husband the same rights in the wife’s property as she liad in his property before its passage. Sadler v. Campbell, 150 Ark. 594. Not in conflict with § 7, art. 9, Constitution, since she acquires all property, after its passage, burdened with the husband’s contingent interest, and it never becomes her sole and separate property.

      J. C. Marshall, for appellee.
    Whole act is unconstitutional. The purpose was not only to abolish estate by the curtesy but to give the husband in lieu thereof the same rights in the wife’s lands that she had in his lands before, its passage, and this could not be done because of § 7, art. 9, Constitution. It is also clear that the provision referred to would render nugatory any relinquishment by the husband in the wife’s lands. Neelly v. Lancaster, 47 Ark. 175. The act has no relation to personal property.
   McCulloch, C. J.

This case involves an attack on the 'Constitutionality of a statute, enacted by the General Assembly at the recent session (1923), entitled, “An act to abolish tenancy by the curtesy. ’ ’ Section 1, which constitutes the body of the statute, reads as follows:

“The estate of curtesy is hereby abolished, and hereafter, upon the death of a married woman, her surviving- husband shall have in her estate the same interest that the wife lias in the estate of the husband upon his death under the laws of this State.”

We deem it necessary to consider as decisive of the case the only point of attack on the validity of the statute, that it offends ag-ainst section 23, article 5, of the Constitution, which reads as follows:

“No law shall be revived, amended, or the provisions thereof extended or conferred by reference to its title only; but so much thereof as is revived, amended, extended or conferred shall be reenacted and published at length. ’ ’

This court has often considered the application and effect of this provision of the Constitution, and in each instance has adhered to the rule that “when a new right is conferred or cause of action given, the provisions of the Constitution quoted require the whole law governing the remedy to be reenacted in order to enable the court to effect its enforcement,” but that if the statute “is original in form, and by its own language grants some power, confers some right or creates some burden or obligation, it is not in conflict with the Constitution, although it may refer to some other existing- statute for the purpose of pointing out the procedure in executing the power, enforcing the right, or discharging- the burden.” Watkins v. Eureka Springs, 49 Ark. 131; Beard v. Wilson, 52 Ark. 290; Common School District v. Oak Grove Special School Dist., 102 Ark. 411; State v. McKinley, 120 Ark. 165; Harrington v. White, 131 Ark. 291; Rider v. State, 132 Ark. 27; Palmer v. Palmer, 132 Ark. 609; Hermitage Special School Dist. v. Ingalls Special School District, 133 Ark. 157; Fenolio v. Sebastian Bridge District, 133 Ark. 380.

. The United States Circuit Court of Appeals for the Eighth Circuit has followed our decisions and adopted the same rule of construction and application. In the case of St. Louis & San Francisco Ry. Co. v. Southwestern Telegraph & Telephone Co., 121 Fed. 276, Judge Sanborn, speaking for the court, said:

“The second answer to this contention is that, while section 23, art. 5, of the Constitution of Arkansas limits legislation which grants, modifies, or destroys the rights of parties, it has no application to legislation which simply affects remedies and methods of procedure.”

The line is thus sharply and definitely drawn between the character of statutes which fall within the inhibition of the Constitution and those which fall without its operation. The only remaining task is to determine .within which class of statutes the one now under consideration falls. The statute plainly confers not a mere remedy or method of procedure -for enforcing a right, but it undertakes to confer a substantive right or interest. The statute undertakes, in other words, to provide an interest which the surviving husband’shall have in the estate of his wife upon the latter’s death. This is a right or interest sought to be vested, and not a remedy or procedure to 'be. adopted in securing a declared right. Our conclusion therefore is that the statute is in direct conflict with the language of the Constitution, and for that reason it must be declared invalid.

Decree affirmed.

Smith, J.,

(dissenting). As is said in the majority opinion, section 23 of article 5 of the Constitution has been often considered by this court, but apparently its meaning had not heretofore been fully .ascertained. Much aid in its construction might be derived by a consideration of its purpose and the evils in legislation which it was intended to prohibit. A similar provision is found in the constitutions of many of the States, and its purpose has been many times explained by the courts of this and other States.

One of. the earliest cases by this court construing this section is that of Watkins v. Eureka Springs, cited in the majority opinion. It was there said: “We are not, however, prepared to assert that Avhen a new right is conferred or cause of action given, the proAdsion of the Constitution quoted requires the whole law governing the remedy to be reenacted in order to enable the courts to effect its enforcement. * * * They (the makers of the Constitution) meant only to lay a restraint upon legislation where the bill was presented in such form that the legislator could not determine what its provisions were from an inspection of it. What is not within the mischief is not within the inhibition. Every intendment is to be indulged in favor of the prerogative of the legislative branch of the government. A doubt of its powers to legislate inures to its benefit. The language of the provision is so broad that a literal construction Avould hamper legislation almost to the extent of prohibiting it. This A\ms adverted to in Scholes v. State, 47 Ark. 476, and it Avas there ruled that a repeal of the exception in a statute, although it practically extended the operation of its provisions- to the class previously excepted, did not render it necessary to reenact the general provisions in order to continue them in force.”

The meaning of this section of the Constitution was thoroughly considered in the case of State v. McKinley, 120 Ark. 165, and we there quoted from an opinion of the Supreme Court of Michigan, delivered by Judge Cooley in People v. Mahaney, 13 Mich. 481, in which that learned judge said: “ ‘This constitutional provision must receive a reasonable construction, with a vieiv to give it effect. The mischief designed to be remedied was the enactment of amendatory statutes in terms so blind that legislators themselves were sometimes deceived in reg-ard to their effect, and the public, from the difficulty in mailing the necessary examination and comparison, failed to become apprised of the changes made in the laws. An amendatory act which purported only to insert certain words or to substitute one phrase for another, in an act or section which was only referred to, but not published, was well calculated to mislead the careless as to its effect, and was perhaps sometimes drawn in that form for that express purpose. Endless confusion was thus introduced into the law, and the Constitution wisely prohibited such legislation. But an act complete in itself is not within the mischief designed to be remedied by this provision, and cannot be held to be prohibited by it without violating its plain intent. ’ ’

In the McKinley case, supra, a violation of § 5433 of Kirby’s Digest (§ 7615, C. & M. Digest) was alleged. This section reads in part as follows: “* * * All elections shall be held and conducted in the manner prescribed by law for holding State and county elections, so far as the same may be applicable.”

It thus appears that, by mere reference to the general election laws, those laws were made applicable to municipal elections, and it was contended — and the trial court held — that the section quoted violated section 23 of article 5 of the Constitution, because the general election law was made applicable to municipal elections by mere reference to the general election laws. After a review of the authorities, and after quoting from Judge Cooley, as stated, we reached the conclusion that the legislation was valid, and announced our conclusion as follows: “From the principles above announced, it will be seen that the constitutional provision quoted abov'e was intended to enable the meaning of statutes directly amending prior statutes to be ascertained by an examination of the new statute, without the necessity of examining the prior statutes on the subject to ascertain the effect of the amendment. As we have already seen, § 5433 of Kirby’s Digest is complete in itself and does not purport in any manner to amend or change the existing election laws. It follows that the constitutional requirement was not violated in the enactment of § 5433 of Kirby’s Digest, and the court erred in sustaining the demurrer to the indictment.”

In other words, we were of opinion that the act was not within the evils intended to be guarded against, and therefore the legislation was not invalid. That act did not purport to recite any of the provisions of the general election laws. It assumed they were known, and on that assumption it was enacted that municipal elections should be held in accordance therewith “s.o far as the same may be applicable.’’

In contrast with this case and as illustrating the kind of legislation intended to be prohibited, the case of Ricler v. State, 132 Ark. 27, may be cited. The act under review provided that, wherever a certain prior act reads, “Charleston District of Franklin County,” the same should be amended to read, “Charleston District of Franklin County and Barham and Wittich Townships of Franklin County.”

That was not a mere reference statute. One could not have read it and have known what change ivas made in the law, and we therefore held it ivas within the inhibition of the Constitution, for, as was said by Judge Cooley, it was legislation calculated to mislead the careless legislator.

The act here under review is of a class commonly designated as a reference statute. It is complete in itself, although reference to other statutes is necessary to comprehend the scope of its application. But that fact does not make it offend against the Constitution. If one will turn through a copy of the acts of the General Assembly for any session, he will find much legislation enacted in this manner; and if we'should hold such legislation unconstitutional, chaos would result. To reauire legislation to be so complete that no reference would he necessary to any other legislation to determine the menuing of the particular legislation would, as was said by Chief Justice Cockrill in Watkins v. Eureka Springs, supra, hamper legislation almost to the extent of prohibiting it.

“The prohibition of the Constitution referred to is directed against the practice of amending or revising statutes by additions or other alterations which, without the presence of the original act, are usually unintelligible and misleading. ’ ’

“There is, however, a class of statutes known as reference statutes which do not encroach upon this or any other constitutional provision. They are statutes in original form and in themselves complete, but refer to and, by reference, adopt preexisting statutes. The two statutes are separate and distinct legislative enactments, each having its appropriate sphere.”

The language just quoted is from the recent case of House v. Road Imp. Dist. No. 4, 154 Ark. 218, 242 S. W. 68, and is applicable here.

The act here under review is complete in itself. One can read it and know from this reading alone what the state of the law is after its enactment. The estate of curtesy is abolished, and in lieu thereof the married man is given, upon the death of his ivife, the same interest in her estate (which she had not disposed of in her lifetime and owned at the time of her death) which the wife would have had in the husband’s estate had she survived him. 0.f course, we would have to look to other statutes to determine what that interest would be, but, as we have seen, there is no constitutional objection to doing this.

This legislation makes no change in the wife’s interest in her husband’s estate.. It contains no limitation upon her control of her own estate during her lifetime, for it becomes applicable in any case only upon the death of the married woman, in which event the act gives the surviving husband the same interest in the wife’s estate which she would have taken in his estate had she survived him.

The statute is original in form, and by its own language confers a new right, which is made definite and certain by a consideration of other statutes which are in nowise changed or amended by the act under review.

Mr. Justice Hart and the writer therefore respectfully dissent from the conclusions announced by the majority.


source: Caselaw Access Project

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

license: Public Domain

text:
    Bonner v. Jackson.
    Opinion delivered May 7, 1923.
    1. Evidence — judicial notice. — The courts take judicial notice of the map of the State.
    2. Counties — judicial district — boundaries.—Special Act No. Ill of Acts 1923. creating the Central Judicial District of Wood-ruff Countv, describes the area to be included, in part, as follows: “Beginning at the northwest corner of section 2, township 8 north, range 3 west, and running thence east on the boundary line of Woodruff County to the northeast corner of said county.” etc. Though the northwest corner of section 2, township 8 north, range 3 west, is not on the boundary line of the county, it is in line with the north boundary. Held that the act contemplated the drawing of a line as the north boundary of the Central District due east from the northwest corner of the county to the northeast corner of the county, which is at the northeast corner of township 8 north, range 1 west.
    3. Statutes — reasonableness.—A statute creating a third judicial district in a county will not be declared invalid because it reduces an existing district to an area so small that it will in- ' terfere with the enforcement of the law, as the courts do not substitute their judgment for that of the lawmakers with respect to the creation of separate judicial districts in counties.
    4. Counties — judicial districts — validity.—The validity of special act No. Ill of 1923, creating the Central Judicial District of Woodruff County is not affected by the .passage at the same session of special act No. 166, authorizing the removal of the county seat of Woodruff County from Augusta to McCrory upon a vote of the electors of the county.
    5. Counties — judicial districts — validity.—Where an act dividing a county into judicial districts cuts up the townships in such a way that the right of appeal is denied as a temporary result, since the county court may change township lines, it will be presumed that by a rearrangement of township lines the inconvenience will be removed.
    6. Counties — judicial districts — invalid portion op act. — If an act providing for creation of three judicial districts in a county be invalid in providing for the holding of separate county and probate courts in each district be invalid, such provision may be stricken out and the remainder of the act upheld, where the act provides that the void provision shall be declared to be void and the remainder of the act stand.
    7. Counties — unity—impairment.—The unity of a county is not impaired by a statute providing for the holding of the county court at a place other than the county seat.
    Appeal from Woodruff Chancery Court, Northern, District; A. L. Hutchins, Chancellor;
    affirmed.

      Carl E. Bailey, W. J. Bung an, R. M. Hutchins, Jonas F. Byson, Harry M. Woods, and J. F. Summers, for appellant.
    The legislative intent may be shown by the act itself, by other official record of like character, and by other facts of which courts are bound to take judicial notice. Act No. 166 should be construed together with act challenged. 28 Ark. 328; 135 Ark. 301; 45 Ark. 387; 47 Ark. 388; 3 Ark. 56; 5 Ark. 349; 40 Ark. 448; 48 Ark. 308; 25 It. C.» L. 1060-62; 36 Cyc. 1147-1151; 66 S. W. 979; 35 Ark. 56. Acts so construed in conflict with sec. 2, art. 3, Constitution. Courts are bound to take judicial notice of the public laws of the State. 7 Ene. of Evidence, 947, 881; 6 R. C. L. 76-79; 181 U. S. 283. Act is void on its face; violates the Constitution by dividing townships and destroying the appellate jurisdiction and superintending control of circuit courts. Art. 7, sec. 1.4v Constitution; 68 Ark. 561; 102 Ark. 266; 66 Ark. 180; 6 R. C. L. 82, par. 80. Construction of law not affected by county court’s power to remedy defect, which would require time and deprive litigants of guaranty of sec. .13, art. 6, Constitution. Boundary of Central District insufficiently described. 36 Ark. 331; 106 Ark. 517. Courts cannot supply legislative defects and omissions. 104 Ark. 583; 36 Cyc. 1113; Lewis’ Sutherland, Stat. Constr. par. 411; 61 N. J. L. 107, 38 Atl. 685; 3 A. L. R. 398; 122 Ark. 491. The act is a patent absurdity.

      Roy D. Campbell and Ross Mathis, for appellees.
    Rule for construction of statute, when 'Challenged as unconstitutional. 27 Ark. 352; 6 R. C. L. 75; 76 Ark. 199. Act 111, creating the Central District of the county, followed well-established lines. Sec. 12, art. 7, Const. Acts dividing county into districts invariably upheld. 35 Ark. 380; 80 Ark. 150; 55 Ark. 323; 56 Ark. 4; 42 Ark. 34; 46 Ark. 229; 60 Ark. 343; 35 Ark. 389, conclusive of ■this question. Intention of the act must be derived from law itself.. 35 Ark. 59; 140 Ark. 479. Appellate and supervisory jurisdiction of the circuit court not impaired by act. Makes no difference that certain political townships are divided by lines of district. 35 Ark. 60; 135 Ark. 304; 28 Ark. 378. County court has plenary power to remedy any defect caused by division of townships. See. .10288, Crawford & Moses’ Digest. See also §§ 6403 and 10293,'C. & M. Digest; 26 R. C. L. 790; 142 Ark. 454. No insufficient description of boundaries of the district. Appellant has an adequate remedy at law by appeal. 73 Ark. 527; 102 Ark. 287; 135 Ark. Ill; 122 Ark. 557; 118 Ark. 334. No absurdity 0about the act. None of the court’s business that the Legislature saw fit to divide the county into three districts. Little Rode v. North Little Rode, 72 Ark. 195.

      Carl E. Bailey, TL. J. Dungan, R. M. Hietchins, Jonas F. Dyson, Harry M. Woods, and J. F. Summers, in reply.
    Court of equity had jurisdiction. 34 Ark. 310; 130 Ark. 116. It is proper to consider the two acts together. 35 Ark. 59. Endl. Inter. Statutes, 43-52; 93 S. W. 436 ; Sutherland, Statutory Constr., § 238.
   McCulloch, C. J.

Appellant is a citizen and taxpayer of Woodruff County, and he instituted this action in the chancery court challenging the validity of a ’ statute enacted by the G-eneral Assembly of 1923 (act No. Ill, approved February 12, 1923),,, creating another court district for that county, designated as the Central Judicial District of Woodruff County, and seeking to restrain the county clerk and clerk of the circuit court from purchasing supplies and establishing their offices in accordance with the directions of said statute.

Prior to the enactment of the challenged statute there were two court districts in Woodruff County, one designated as the Northern District, with Augusta, the county seat, designated as the place for holding the courts, and the other designated as the Southern District, with Cotton Plant as the place designated for holding the courts and maintaining the offices. The two districts were divided by a line running east and west through the county, near the center. The following named townships comprise the Northern District: Dent, Pumpkin Bend, Barnes, Devue, White ■ River, Augusta, and Point townships; and the following townships comprise the Southern District, namely: Franks, Caney, Cache, Cotton Plant, Freeman and Garden townships.

In the new statute, now under consideration, Central District of Woodruff County is described by metes and bounds, and covers the northeastern portion of the county, the eastern line running through the middle of some of the townships comprising, in part, the Northern District, and also running through the middle of some of the townships comprising, in part, the Southern District.

The chancery court sustained a demurrer to appellant’s complaint, and dismissed the complaint for want of equity.

It is contended that the description of the territory embraced in Central District is so vague and uncertain that it cannot be definitely determined what was meant by the language used, and that for this reason the statute must fail for the want of sufficient description of the boundaries of the district.

It will be observed,' from examination of the map of the State, of which we are, under settled rules, permitted to take cognizance, that White River forms the west boundary line of Woodruff County, and that the north boundary line is irregular in that the whole of a congressional township (9 north, range 3 west) is included in the county, and the north boundary of that township forms, in part, the north boundary line of the county, but that the north boundary line then drops down to township 8 north and runs along the north ’boundary line of township 8 north, range 1 west and range 2 west. The description of the area to be included is, in part, as follows:

“Beginning at the northwest corner of section 2, township 8 north, range 3 west, and running thence east on the boundary line of Woodruff'County to the northeast corner of said county,” etc.

Now the contention is that the northwest corner of section 2, township 8 north, range 3 west, is not on the boundary line' of the county, and that this makes the words of description so indefinite that it is impossible to give any effect to them. It will be observed, however, that the northwest corner of said section 2 is in line with the north boundary, and it seems reasonably clear, from a consideration of the language used, that what the framers of the statute meant was that the description was to begin at that point and run east in line with the north boundary. It requires no strained construction of the language used to see clearly that the framers of the act meant to draw a line as the north boundary of the Central District due east from the northwest corner of section 2' in township 8 north, range 3 west, to the northeast corner of the county, which is at the northeast corner of township 8 north, range 1 west. It is not necessary to read anything into the statute to reach this conclusion, for a mere inspection of the map reveals very clearly, we think, what was meant by the use of the language in the descriptive part of the statute.

It is further argued that the act is void on its face for the reason tíiat it inevitably leads to absurd results, in that it reduces one of the districts (the Northern District) in which the county seat is situated, to an area so small that it will seriously interfere with the enforcement of the law, and that if this act be upheld the Legislature may continue to create other districts in that county to suit the pleasure and convenience of every locality in the county. The substance of this attack is that the court should be the judge of the feasibility of the statute and the convenience or inconvenience to result therefrom, and that we should declare the act void because it is an improvident piece of legislation. Statutes creating court districts have been repeatedly upheld as valid by this court, and we do not feel at liberty to substitute our judgment for that of the lawmakers upon the question of convenience of the people of a county with respect to the creation of separate districts. Walker v. State, 35 Ark. 385; Pryor v. Murphy, 80 Ark. 150.

Our attention is called to the fact that the General Assembly, at the session of 1923, a few days after the approval of the statute now under consideration, also enacted a statute (Act No. 166), authorizing the removal of the county seat of Woodruff County from Augusta to McCrory, upon a vote of the electors of the county, and that this statute should be considered along with the other for the purpose of determining its validity, and that, when so considered, it shows that the two statutes were passed merely for the purpose of coercing the people of the Northern District into voting for the removal -of the county seat. It may be conceded that it is proper for us to consider both of the statutes, for the reason that they deal with somewhat kindred subjects, but we see no reason why^ a consideration of both the statutes would lead to any absurd or illegal results. As before stated, we are not at liberty to substitute our judgment for that of the lawmakers as to the best way to serve the people of a county with respect to their court facilities, and neither of the statutes, upon its face, affords any reason why we should hold the statute now under- consideration to be void. Of course, we are not considering now any question relating to the validity of the removal statute, for that is not before us, except so far as- it -may affect -the validity of act No. 111.

The contention is also made that the statute creating the new district is void because it splits up existing townships and denies the inhabitants of those townships the right of appeal to the circuit court. It is alleged that for this reason the act constitutes a deprivation of the right of appeal, and that on that account it offends ag*ainst the Constitution.

The statute provides that the circuit and chancery courts are to be held in the respective districts of the county and -shall have exclusive and -original jurisdiction over the territory allotted to the district, the same as if each district constituted a separate county. This would necessarily carry with it the right of appeal, as guaranteed by the Constitution, from a justice of the peace t-o the circuit court of the-particular district in which the township is situated. There is no -express provision in the statute concerning the change of boundaries of townships which are -split by the new statute, and this is a point which is urged as a reason why the statute is void, 'because it would be impossible to determine to which of the courts an appeal would lie from a judgment rendered by the justice of the peace in a township thus divided.

A sufficient answer to this contention is that there is a statute which imposes upon the county courts of the respective counties the duty to “from time to time,” as occasion may require, divide the county into convenient townships, subdivide those already established, and alter township lines.” Crawford & Moses’ Digest, § 10288. Conceding, for the sake of argument, that the division of a township would result in a denial of the right of appeal, this, at most, would only be a temporary result, which, it must be presumed, would be corrected by the county court, pursuant to the mandate of the statute. Temporary inconvenience may result from the enactment of any statute, hut this affords no reason why the statute itself should be stricken down. This court has held that a statute itself revising the time for holding courts in a judicial district which has the effect of depriving a county of one of the semi-annual terms of court is not void en that account. Parker v. Sanders, 46 Ark. 229.

Where the effect of a statute might result in a temporary denial of a right guaranteed by the Constitution, if that result can be obviated 'by further remedial proceedings authorized by law, we must assume that these proceedings will be inaugurated and carried to a successful conclusion so as to restore all guaranteed rights. So in this instance we must assume that the county, court will expeditiously rearrange the townships so that there may be no uncertainty as to the right of appeal.

Finally, the question arises as to whether or not the statute is invalid on account of containing a provision with respect not onlv to the holding of circuit and chancmv courts in eac-1' district, but also for the holdins1 of county courts in each of the districts. After fully providing for the holding of separate circuit and chancery courts in each district and the exercise of exclusive jurisdiction in the respective districts, and also regulating the issuance of process et cetera, § 19 provides that terms of the county and probate courts of Woodruff County should be held in each of the three districts, and that the jurisdiction of said courts shall extend over the respective districts “as if said district was a constitutional county of this State;” that the said county court and probate court of the Central District shall have original and exclusive jurisdiction of all such cases as are now by law vested in the county and probate courts of this State: that the 'county clerk shall maintain an office in the town of MoCrory in the Central District, where the clerk.or a deputy shall reside; that the county cleric shall make out a separate taxbook for the different districts, and that it shall be the duty of the collector of taxes to collect taxes in the respective districts “as now provided by law, the same as if said districts were separate and distinct counties,” and that all tax sales and notices relating thereto, or other court proceedings “now required to be advertised by law shall be advertised and held as provided by law in the respective districts as provided by law, in like manner as if said districts were separate and distinct counties.”

The question of the validity of the provision concerning the holding of county and probate courts in each of the districts is not directly presented here, further than its effects upon the validity of the statute as a whole, and we might content ourselves with answering the attack on this ground by pointing to § 20, which reads as follows:

“If any provision in this act is held unoonstitional, only that provision shall be declared to be void, and the remainder of this act shall stand. ’

If it is to be conceded that the portion of the statute having reference to the holding of separate county and probate courts in the districts be invalid, it would not affect the validity of the remainder of the statute. Snetzer v. Gregg, 129 Ark. 542; Sallee v. Dalton, 138 Ark. 549. We must accept this as a legislative declaration of an intention to exercise its power to its full extent under the Constitution, and there is no reason why the provision affecting the holding of separate county courts cordd not be stricken out without impairing the validity of the other parts of the 'Statute, which are in nowise dependent upon the provision with reference to the holding of separate terms of the county court. We hold that the effect of § 20 is to preserve .the validity of all parts of the statute not othenvise found to be invalid. But, inasmuch as the question of validity of the feature of this statute relating to terms of the county and probate courts may sooner or later arise', and as there are other statutes which have long been in force in other counties, creating separate districts and containing Lke provisions with respect to holding separate county courts without containing a provision similar to § 20 of the present statute, we deem it not inappropriate to decide the question whether or not .this provision is valid. That question has never been expressly decided by this court, but in two of the decisions the validity of such a provision seems to have been assumed. Hutchinson v. Ozark Land Co., 57 Ark. 554; Clay County v. Bank of Knobel, 105 Ark. 450.

In the first case cited above the court had under consideration the question of the validity of separate rates of taxation for different portions of Clay County, and it was held that taxation must be uniform throughout the county, notwithstanding the provision of the statute creating separate districts and authorizing separate collection of taxes and the holding of county courts in each district. Disposing of the matter, Judge Mansfield, speaking for the court, said:

“The objection to the tax is that it violates the rule of uniformity prescribed by the Constitution and to which all taxation in this State must conform. # * * * This is met by the argument that the Legislature has made the two districts of Clay County taxing districts, and that, as the tax levied on the property of the Eastern District is at a uniform rate throughout that district, a less rate may, consistently with the Constitution, be imposed upon the property of the “Western District. But it was not within the power of the Legislature to create a district for the levy' of the tax in question that did not embrace the whole county. The tax was for a county purpose, and its burden could not be imposed upon a part only of the county’s territory.”

Further along the court, in the opinion, said: “The expense of maintaining the two judicial districts in a county is necessarily a county expense, and the revenue to pay it can be raised only by a county tax. Such tax, to be valid, must be levied, at a uniform rate upon all the taxable property of tbe county.”

Tbe court also took occasion to say, -with reference to certain sections of the statute providing for the separate collection of taxes, that it was difficult to see what effect could be given to-those provisions, -but that, whatever -effect they might have, they could not alter the fact that the unity of power which the Constitution secured to a county as a political subdivision could not be impaired.

The other case cited (Clay County v. Bank of Knobel) merely involved the question o.f an appeal from the board -of equalization to the county court of one of the districts, and it seems to have 'been assumed, without deciding, that separate terms of the county court might be held in each district. There is not in either of those decisions, as before -stated, anything which directly decides -the question of the validity or invalidity of a statute authorizing the holding -of separate terms of a county court. We find nothing, however, in the Constitution which prohibits the Legislature- from authorizing the holding of terms of the county court in different places in the county. The Constitution is silent on the subject, and the mere fact that there is a provision for creating county -seats does not necessarily imply that any or all the -courts of the -county must be held at that place, or rather, that they cannot be held at other places. The Constitution is -silent as to where the' circuit and chancery courts shall be held, and it has been decided by this court that this does not exclude the power of the Legislature to provide for terms to be held at places other than the county seat. Walker v. State, supra.

Nothing must be done, as held in Hutchinson v. Ozark Land Co., supra, that will constitute an impairment of the unity of the county which is secured by the Constitution. The county is a unit of government -and a unit -of taxation, and all taxes levied for county purposes must be uniform throughout the county, and must be used uniformly for county purposes. Taxes in one part of a county cannot be levied and used for other than county purposes as a whole, but the holding* of a term of the county court at a place other than the county seat is for the convenience of the people, and it in nowi-se disturbs or impairs the unity of the county; the court must be held 'by the same judge and for the same purposes, regardless of the place at which the term is held, and, as before stated, the mere fact that a county seat is provided does not necessarily imply that everything done for and in the name of the county must be done at that place. It is necessarily the seat of county government, but it does not follow that all tilings done for the county must be done at that place. Our conclusion therefore is that this particular provision pf the statute is valid, as well as all other provisions to which our attention has been called. It follows therefore that the attack upon the validity of the statute is unfounded, and the chancellor was correct in so holding.

Decree affirmed.

Hart, J.,

(dissenting). I dissent on the ground that the act in question violates art. 13, § 1, of our Constitution, which provides that no county now established shall be reduced to an area of less than 600 square miles. The act purports to create the Central Judicial District of Woodruff County. But it also provids for a county court, the authority and territorial jurisdiction of which shall extend over the Central District the same and in. like manner as if said district was a constitutional county of this State.

Blackstone defines a county to be a civil division of a State for political and judicial purposes, and the act in question provides in practial effect all the attributes of a county, thereby reducing Woodruff County below the constitutional area. Our Constitution of 1868 contained •a provision that no county already established should ever be reduced by the establishment of any new county or counties to less than 600 square miles. The Legislature of 1871 passed an act purporting to divide Sebastian County into two judicial districts, and separate county, as well as probate, circuit, and chancery, courts were created.

The act provided that each of said courts “shall be as independent of and distinct from each other, and shall hold the same relation to each other, as if they were courts of different constitutional counties of this State, and shall be deemed, for all purposes of this act, separate and distinct counties, with original and exclusive jurisdiction within their territorial limits.”

In Patterson v. Temple, 27 Ark. 202, the act came up to this court for construction, and the court held: “While the Legislature may create judicial districts, and define the power and jurisdiction of the courts therein created, yet it has no power to create, for a single specified county, two separate and distinct county courts, clothed with all the powers and duties appertaining to such tribunals, when the justices of the. peace are selected from townships whose area consists of less than six hundred square miles.”

In discussing the question the court said: “Then, if a county is a public corporation, which the people, in their organic act, have said shall not consist of less than six hundred square miles, and within whose boundaries the people are invested with the powers of certain local matters pertaining alike to all the persons within those defined limits, aaid to whose judgment and discretion the vital powers and interests of all the people, as their agent, the county court, are intrusted, can the General Assembly create, for a single specified county, two separate and distinct county courts, clothed with all the powers and duties appertaining to such tribunals, when the justices of the peace are selected from townships whose area is admitted to consist of less than six hundred square miles, as in the case now at bar? We think not. ”

Continuing the discussion, the court again said: “Thus it will be seen that the Legislature is providing for all the attributes of a county and creating1 all the essential features of these public corporations as effectually as though each subdivision was called Fort Smith and Greenwood counties. The individuality, so to speak, of Sebastian County is entirely destroyed and obliterated, and is only recognized in the fact that the official existence of the sheriff, clerk, treasurer and county judge is allowed to remain as monuments to mark the spot where now lies the defunct bod}*1 of Sebastian County.”

It is true that the act construed in that case in direct terms says that the district shall be deemed for all purposes separate and distinct counties. But I think the language of the present act is strong enough to embody the same view. After creating separate chancery and circuit courts, § 19 provides for the creation of county and probate courts for the Central District. Sec. 19 expressly provides that the authority and territorial jurisdiction of the county and probate courts shall extend over the Central District the same and in like manner as if said district was a constitutional county of this State; and that the said county and probate court for the Central District shall have original and exclusive jurisdiction of all such cases as are now by law- vested in the county and probate courts of this State, which have or may hereafter arise in the Central District.

The section also provides that all tax sales for the payment and collection of delinquent taxes shall be advertised -and held in the respective districts as provided by law in like manner -as if said districts were separate and distinct counties. Thus it -will be seen that the act creates separate and independent judicial districts for county and probate courts as well as circuit and chancery courts, thereby in practical effect destrovinp,1 the unity of Woodruff County and reducing the boundaries of each judicial district to an area below that which is prescribed by the Constitution.

In recognition of "-this decision, the Constitution -of 1874 provided that Sebastian County may have two districts and two county seats to which, county, probate, and circuit courts shall be held as may be provided by law, each district paying for its own establishment. Art. 13, § 5 of the Constitution of 1874.

In recognition of it the Legislature of 1875, on Dec. 15, 1875, passed an act creating two judicial districts in Yell County, and the act made no provision whatever for the establishment of a county court for the Dardanelle District, or separate county courts. The county court of that county is held at the county seat at Dan-ville. Separate probate, circuit, and chancery courts were established for the Dardanelle District. Thus it will be seen that the unity of the county for governmental purposes was in all respects preserved.

Reliance is placed in the majority opinion on the case of Hutchinson v. Osark Land Co., 57 Ark. 554, but I think that case sustains my view. There it was held that it was not within the power of the Legislature to create a levy of the county taxes that did not embrace the whole county; that, as a tax was for a county purpose, its burden could not be imposed upon a part only of the county’s territory. As we have already seen, in § 19 of the present act it is provided that the authority and territorial jurisdiction of the county court shall extend over the Central District the same and in like manner as if said district was a constitutional county of this State. The section also provides that all taxes as well as the payment and collection of delinquent taxes shall be advertised and held within the respective districts as provided by law in like manner as if said districts were separate and distinct counties.

In Patterson v. Temple, supra, it was claimed that part of the enactment might be held void, and that the balance might be a good law. ' The court held that the act was indivisible under the well-known rule of constitutional construction laid down by Judg’e Cooley in his work on Constitutional Limitations, and quoted therefrom the following: “"Whether the other parts of the statute must be adjudged void because of the association must depend upon a consideration of the object of the law, and in what manner and to what extent the unconstitutional portion affects the remainder.” Continuing, the court said: “Now, the objects of this law were to create two separate and distinct districts in Sebastian County, with all the powers and immunities of any constitutional county of the State, the area of each being less than six hundred square miles; which object, if carried out, would destroy the identity of Sebastian County. This, we say, cannot be done. Upon an examination of the whole act, each section is interwoven with the other in such >a manner that no court could separate them without destroying the whole fabric, and, with the fall of one, the whole enactment must be declared void. ’ ’

Sec. 20 of the present act provides that, if any provision -of the act is held to be unconstitutional, only that provision shall be declared void, and the remainder -of the act shall stand. I think the most serious question in the case is whether or not this saving clause, when construed according to the principles of Snetzer v. Gregg, 129 Ark. 542, adopts' a different' rule of constitutional construction for acts held void in part than that laid down in Patterson v. Temple, supra. I think, however, that the sound rule is that, while this section is some indication of the legislative intention, it is merely declaratory of the rule heretofore laid down by this court on the same subject, and which is a rule of constitutional law. State v. Bancroft (Wis.) 134 N. W. 330, 38 L. R. A. (N. S.) 526, and Springfield Gas & Electric Co. v. Springfield, 292 Ill. 236, 18 A. L. R. 929.

If the saving clause in section 20 is merely declaratory of the rule of constitutional construction already adopted by this court, then this clause is governed also in this respect by the ease of Patterson v. Temple, supra.


text:
    Mason v. Intercity Terminal Railway Company.
    Opinion delivered May 7, 1923.
    1. Statutes — rule of ejusdem generis applied. — The rule .that where a statute enumerates ¡specific classes and also uses a general term, the latter term is restricted to the specific classes applies whether the general term follows or precedes the specific terms.
    2. Statutes — rule of ejusdem generis. — The rule of ejusdem generis must be given a reasonable rather than an inflexible construction, so as to aid and not to thwart the discovery of the legislative intent.
    3. Statutes — rule of ejusdem generis. — Where the detailed enumeration embraces all the things capable of being classed as of their kind, and general words ¡are ¡added, they must be applied to things of a different kind from those enumerated.
    4. Railroad commission — authority to regulate jitney busses.— Under’ Acts 1921, p. 177, § 5, conferring on the Railroad Commission jurisdiction of “all matters pertaining to the regulation and operation of all common carriers, railroads, express companies,” etc., the Railroad Commission is authorized to regulate “jitneys” or “jitney” busses operating as public carriers outside of or between municipalities.
    Appeal from Pulaski Chancery Court; J. E. Martineau, Chancellor;
    affirmed.

      Harry H. Myers, for appellants.
    The act creating the Arkansas Railroad Commission abolished the Arkansas Corporation Commission,' which had jurisdiction of “vehicles of all kinds engaged in the transportation of freight and passengers,” and expressly conferred jurisdiction on the Railroad Commission by § 5, act 124, Acts General Assembly 1921, purposely omitting therefrom the clause above quoted. The Railroad Commission is therefore -without authority to regulate and control motor busses doing intercity business. 112 Ark. 440. “'Common Carriers” defined. § 1, art. 17, Constitution. Sec. 7121, C. & M. Digest; act 124 Acts 1921. The doctrine ejusdem generis applies in the construction of said act 124, and it only includes the kinds of common carriers mentioned and none others, except of the same kind of character. 95 Ark. 114. 73 Ark. 600; 74 Ark. 528; 73 Id. 600; 90 Ark. 4; 91 Ark. 245. The Legislature had no intention of including “vehicles of .all kinds and character” as were included in the repealed act, and left out said clause therefore, but did include pipe line, electric lighting, hydro-electric, and water companies, which were not in the repealed act. Jitney busses are common carriers of course (121 Ark. 611) but certainly not of the same kind or class as those enumerated in act 124. 104 N. E. 165. Powers of Railroad Commission construed in 47 So. 9.69. Cities have power to regulate motor vehicles within their limits. 120 Ark. 226; 121 Ark. 610; 130 Ark. 334. The general motor •vehicle act, chapter 126, C. & M. Digest, controls motor vehicles, taxicabs, jitneys, etc., operating outside cities and towns. Sec. 7429, C. & M. Digest; 121 Ark. 610.

      Rose, Hemingway, Cantrell <& Loughborough, for appellee.
    Jitneys are subject to regulation by the State. 121 Ark. 606. Regulated elsewhere as common carriers and public utilities coming within the police power of the State. 150 Pac. (Calif.) 348; 85 S. E. (W. Ya.) 781; 178 S. W. (Tex.) 537; 178 S. W. (Tex.) 6; 179 S. W. (Tenn.) 631; 70 So. (La.) 212. Court has held under act 134 of Acts of 1911, motor vehicle law, that a municipal corporation is without authority to exact a license fee of a jitney bus hauling passengers from a point outside the city through city and to a point beyond. 130 Ark. 334. This left them without regulation after purchasing a State license, and power was given by the Corporation Commission Act for their regulation, and upon its repeal by the act creating the Arkansas Railroad Commission. Act 124, Acts 1921, §§ 2, 3 and 5. Jitney busses are common carriers and included within the provisions of the said act, which relates to “all common carriers” and the rule of ejusclem generis does not so limit the meaning of the act as to prevent their regulation. 19 C. J. 1255; 95 Ark., 116; 32 Ark. 464; 100 Ark. 75; 109 Ark. 556. Said act 124 expressly provides that the commission and municipal councils shall have jurisdiction over all common carriers.
   McCulloch, C. J.

The decision of this case calls for a determination of the question of the authority of the Railroad Commission of the State, under existing statutes, to regulate vehicles commonly known as “jitneys,” or “jitney busses,” operating as public carriers outside of or between municipalities. A brief outline of the powers conferred by the lawmakers in this respect is necessary.

The Arkansas Corporation Commission was created by the General Assembly of 1919, and in one of the sections of the statute creating the Commission its jurisdiction was defined to extend to and include “common carriers, railroads, street railroads, express companies, all car 'Companies, freight lines, toll bridges, ferries and steamboats, and vehicles of all kinds engaged in the transportation of freight and passengers.” Crawford & Moses’ Digest, § 1618. The same- section also included, as being within the jurisdiction of the Commission, telegraph and telephone companies, pipe-line companies for the transportation of oil, gas and water, all gas companies, hydro-electric companies for the generation and transmission of light, heat, power and water.

The General Assembly of 1921 (Acts of 1921, p. 177) abolished the Arkansas Corporation Commission and substituted therefor the Arkansas Railroad Commission, the declared purpose being to transfer from the former “all its proper functions” to the latter. • This is declared in the first section of the act, which reads as follows:

“Section 1. That the intent of this act is that the present Arkansas Corporation Commission be abolished and that all its proper functions, not elsewhere herein delegated, be transferred to the Arkansas Railroad Commission as herein constituted.”

• Section 2 of the statute provides that the Railroad Commission “shall have and possess all of the powers and duties provided in this act, and all such other powers as were possessed by and exercised by the Railroad Commission of Arkansas * * * * which are not in conflict with the terms of this act.”

Section 3 defines the jurisdiction of the Railroad Commission as follows:

“Section 3. That section 5 of the said act No. 571, General Acts of the General Assembly of the State of Arkansas of 1919, above more particularly referred to, be and the same is hereby amended to read as follows:

“Section 5. Jurisdiction. The jurisdiction of the Commission shall extend to and include all matters pertaining to the regulation and operation of—

“(a) All

“Common carriers,

‘ ‘ Railroads,

“Express companies,

“Car companies,

“Freight lines,

“Toll bridges,

“Ferries,

“Steamboats,

“Street railroads,

‘ ‘ Telegraph companies,

‘ ‘ Telephone companies,

“Pipe-line companies for transportation of oil, gas and water,

“Gas companies,

“Electric lighting companies, and other companies furnishing gas or electricity for light, heat or power purposes,

“Hydro-electric companies for the generation-and for transmission of light, -heat or power, -

“Water companies-, furnishing' water within municipalities for municipal, domestic or industrial use.

“Provided, hoivever, that nothing herein shall vest said Commission with jurisdiction as to any rate, charge, rule, regulation, order, hearing, investigation, or other matter pertaining to 'the operation within the limits of any municipality of any street railroad, telephone company, gas company, pipe-line company for transportation of oil, gas or water, electrical company, water company, hydro-electric company or other company operating a public utility or furnishing public -service as to which jurisdiction may be elsewhere conferred in this act upon any municipal council or city commission; notwithstanding, however, the jurisdiction of the municipality as to the above matters within the limits of such municipality, the said Arkansas Railroad Commission shall have and is hereby delegated the authority and duty to require all utility companies now furnishing public service within the limits of any municipality to -furnish and continue furnishing such service to such municipality, though the right of regulation of such utility as to rates and all other matters within such municipality is herein elsewhere conferred upon the municipal councils or city commissions, subject to right of appeal-to the -courts.

“Provided, further, that nothing herein shall vest said Commission with jurisdiction as to any improvement district or municipality furnishing gas qr electricity for any purpose.

“And for the purpose of this act, and in the construction of this act, every person, firm, association, company, partnership or corporation or other -organizations engaged in the operation of any public utility above indicated shall be deemed to be a company within the meaning of this act.

“(b) All other jurisdictions, if any, possessed by the Arkansas Railroad Commission under the laws of Arkansas, in force on March 31, 1919.”

It will be observed that the- phrase, “and vehicles of all kinds engaged in the transportation of f-réight and passengers,” in the former- statute -defining the jurisdiction of- tlxe Corporation Commission, is omitted from tlxe last statute defining the jurisdiction of tlxe Railroad Commission, and tlxe contention of eouixsel for appellant is that this indicates the legislative will to withdraw the power ixx t-hi-s respect, aixd that under the familiar rule iix regard to the use of general words in connection with specific words of description being confined to things of the same kind or species (ejusdem generis) the words "common carrier” ixx the last statute do xxot have the effect of extending the jurisdiction beyond the specific things mexxtioned so as to include other vehicles, such as those ixxvolved ixx the present controversy.

The rule of interpretation ixx regard to ejus-clem generis has always found its application, so far as we can ‘ascertain, to general terms subjoined to other specific words of description of the same generic class, axxd we have xxot found an instance where the question of its application was ixxvolved in regard to preceding words, as in the present instance. It is coxxtexxded by eouixsel for appellee that the rule of interpretation is applicable solely to subjoined words of description, but we are unable to discover any reason for distinction in tli o application of the rule. We see no reason why the raid should not be applied to preceding as well as to subjoined words of general description, and we think that the effect would be the same if, instead of prefacing with the words "common carrier,” those words had been subjoined to the -other descriptive words used. The effect is the same, we think, as if there had been subjoined the words "other common carriers.” And the question then arises whether or not, taking the statute as a whole, the generic term should be confined in its application to things of the specific kinds mentioned. Many definitions of the rule in regard to words of general description used in this way are found in the decisions of the court, but nowhere is the rule more clearly expressed thaix in the opinion of this court, delivered by Judge Hemingway, in the case of Wallis v. State, 54 Ark. 611, as follows:

“The rule invoked is by no means of universal application, and its use is to carry out, not to defeat, the legislative intent. Where an act attempts to enumerate the several species of a generic class, and follows the enumeration by a general term more comprehensive than the class, the act will be restrained in its operation because it is discerned that the Legislature so intended; but where the detailed enumeration embraces all the things capable of being classed as of their kind, and general words are added, they must be applied to things of a different kind from those enumerated. For the rule does not require the entire rejection of general words, and is to be used in harmony with the elemental canon of construction, that no word is to be treated as unmeaning if a construction can be found that will preserve it and make it effectual.”

There are decisions of other courts affirming the doctrine that the rule of ejusclem generis is one of construction, to be applied in aid of the ascertainment of the legislative intent, and it cannot be invoked to thwart the obvious legislative will. In other words, it has been often held that the rule must be given a' reasonable, rather than an inflexible, application, so as to aid and not to thwart the discovery of the legislative intent. Cases on this subject are collated in Words and Phrases, vol. 2, second series.

Now, it will be observed that the specific words of description found in this statute are definite and comprehend all of the things of that particular class described by the specific words, used, and if we give no other effect to the use of the words “common carrier,” it would be meaningless and have no force at all in the statute. The case falls, we think, within that part of the definition given by Judge Hemingway, that “ where the detailed enumeration embraces all the things capable of being classed as of their kind and general words are added, they must be applied to things of a different kind from those enumerated.” This view of the effect of the use of the words “common carrier” finds support-.in--the other, section which expressly declares the intention, of the Legislature to confer upon the Railroad Commission all of the powers theretofore possessed by the Corporation Commission, and the omission from the new statute of certain words of description found in the old statute constitutes a mere change of phraseology without evincing any attempt to change the extent of the powers to be conferred. The lawmakers evidently intended to use the broadest terms to express the delegation of power to the Railroad Commission for the purpose of regulating all public carriers and public utilities, except those operating wholly within municipalities.

Our conclusion therefore is that the power exercised by the Railroad Commission was within the jurisdiction conferred by the Legislature, and that the chancery court was correct in so deciding.

Decree affirmed.

Hart, J.,

(concurring). Subdivision (a) of § 1618 of Crawford & Moses ’ Digest provides that the jurisdiction of the Corporation Commission shall extend to and include “common carriers, railroads, * * * and vehicles of all kinds engaged in the transportation of freight and passengers.” This act was passed by the Legislature of 1919. The present act was passed by the Legislature of 1921. See General Acts of 1921, p. 177.

Subdivision (a) of § 5 of-this act provides that the jurisdiction of the Railroad Commission shall extend to and include .all matters pertaining to the regulation and operation of “all common carriers, railroads,” etc.

It will be noted that the phrase, “and vehicles of all kinds engaged in the transportation of freight and passengers,” is omitted from the act of 1921. Now it seems that this phrase, in its broadest signification, would include private as well as public or common carriers engaged in the transportation of freight and passengers. Recognizing this, the Legislature -of- 1921 properly left out this phrase and confined the Railroad Commission to tlie regulation of -common carriers. This is shown by tlie fact that it placed the -word “-all” before common carriers in the beginning of subdivision (a), and indicates that it intended that the Railroad Commission should regulate all common carriers, and that its regulation should not extend to private carriers at all.

Therefore I concur in the judgment.


author: McCulloch, C. J.

text:
    El Dorado v. Citizens’ Light & Power Company.
    Opinion delivered May 7, 1923.
    1. Municipal corporations — passage of ordinance. — Crawford & Moses’ Dig., § 7502, requiring that “ordinances of a general or permanent nature” be read on three different days unless two-thirds of the members composing the council shall dispense with the rule, has no application to an ordinance entering into a contract, such as an electric light and water franchise, as the fact that a franchise created toy ordinance runs for a long period -of time does not make the -ordinance creating it general or permanent.
    2. Municipal corporations — permanent ordinances defined.— Municipal ordinances which endure until repealed are deemed to be permanent.
    3. Municipal • corporations — general ordinances. — Ordinances of a general nature are those which are general and uniform in their application.
    4. PLEADING — -EXHIBITS.—In suits in equity exhibits to the pleadings -are considered as parts thereof, and such -exhibits as constitute the foundation of the action, defense or counterclaim will control the allegations of the pleadings.
    5. Injunction — fraud- in procuring franchise. — A complaint seeking to restrain the assertion of rights under a municipal franchise which alleges that the franchise was procured by fraudulent representation as to the effect of the ordinance granting the franchise held insufficient where the effect of the ordinance accorded with the alleged representations.
    6. Municipal corporations — omission of word from published ordinance. — The fact that a word appearing in a municipal ordinance as passed was omitted from the ordinance as published is immaterial where the effect of the ordinance is not materially ■ changed.

      7. Municipal corporations — franchises—acceptance.—A municipal franchise is not binding until accepted and acted upon in accordance with the terms of the franchise.
    8. Municipal corporations — franchises—revocation.—When a municipal ordinance is accepted and acted upon by performance of the terms specified therein, it becomes a binding contract which is not revocable at the will of the grantor.
    9. Municipal corporations — franchise—forfeiture.—A municipal franchise to furnish electric light and water to a city, granted on condition that the grantees shall within three months “begin active operations and work in the laying of water mains and the erection of electric light lines and poles and the construction of sufficient power plant and the procurement of a sufficient water supply,” etc., is to be -treated -as a unit, and it is sufficient to prevent a forfeiture if a substantial amount of work is done under the franchise within three months.
    Appeal from Union Chancery Court, J. Y. Stevens, Chancellor;
    affirmed.
    Z7. L. Meade and Mahoney, Yocum S Saye, for appellant.
    No completed franchise was ever consummated. The ordinance was never legally passed. Not read on three different days. Set*. 7502, Crawford & Moses’ Digest; 40 Ark. 107; 100 Ark. 503; 145 Ark. 547. 153 Ark. 1, not applicable; 19 E. C. L. 888, § 188; Dillon’s Municipal Corporations § § 530-573; McQuillin’s Municipal Corporations, § 607. Franchise was not accepted. 12 E. C. L. 192, sec. 19; 26 C. J. 1030, § 66; Pond on Public Utilities, § 375; 70 Ark..303; 80 Ark. 108; 114 Ark. 503; 138 Ark. 390. Construction not begun within 3 months as required in sec. 5. Page on Contracts, see. 51; 15 N. E. (Ind.) 527; 94 (Ind.) 714; 92 N. E. (Ind.) 901; Abbott, Municipal Corporations, § 901; 26 Sup. Ct-. 1439'; 5 Ark. 595; 26 C. J. “Franchises” §§ 58, 66; 178 Iowa 200; 163 Cal. 668; 23 Wendell (N. Y.) 537; 262 Fed. 291; 271 Fed. 671; 53 S. E. (N. C.) 292; 64 S. E. (N. E.) 171; 3 Am. & Eng. Ann. Cas. 89. Eesolution not accented was only a proposition without binding force. 38.N. E. (111.) 534; 168 111. 286; 42 Fla. 462; 18 Sup. Ct. 875; 30 Pac. 827; 75 N. W. (Mich.) 130; 101 N. Y. Supp. 61; 94 N. E. (N. Y.) 1060; 168 Pa. 182. Franchise when accepted and acted upon construed as other contracts. 92 S. W. 948; 64 S. E. 171; 113 Fed. 256; 86 Ya. 608; 84 S. W. 378; 72 S. W. (Tex.) 55; 75 N. W. (Mich.) 130; 125 So. 366; 153 U. S. 564; 55 Pa. Sup. 564; 55 Ark. 360, 105 Ark. 626; 95 Ark. 532; 134 U. S. 67; 137 Ark. 195; 5 Ark. 595. Franchise forfeited for failure to perform conditions subsequent. Such contracts construed most strictly against donee. 96 IT. S. 63; 200 IT. S. 22; 111 IT. S. 412; 141 U. S. 67; 166 IT. S. 685; 56 N. J. Equity 463; 168 Pa. 181; 35 Pa. Sup. Ct. 533; 84 S. W. 378; 209 Pa. 300; 101 N. Y. Supp. 61. City council acts in legislative capacity in exercising the powers conferred upon it to grant franchises for the public benefit. 101 Ark. 227; 98 Ark. 543; 64 Ark. 152. Franchises are lost by misuser or nonuser or failure to comply with conditions subsequent contained therein. 235 U. S. 179; 113 IT. S. 574; 185 IT. S. 336; 218 IT. S. 645; 30 Pac. 826. If franchise is valid, it only covers part of city east of Rock Island main line. 26 Sup. Ct. 445; 33 Sup. Ct. 697; 26 Sup. Ct, 24; 97 U. S. 412; 147 Fed. 1; 56 N. E. (N. Y.) 528. Contract construed most strongly against party who prepared it. 151 Ark. 81; 112 Ark. 1; 115-Ark. 166*; 90 Ark. 276; 35 Ark. 156; 113 Ark. 174; 150 Ark. 492; 26 C. J. 1031, sec. 70. Title or ordinance part thereof. Am. & Eng. Ann. Cas. 1917-E, 534.

      Patterson & Rectorfor appellee.
    Amended and substituted complaint does not state a cause of action, and demurrer was properlv sustained. In suits in chancery the exhibits to the pleadings constitute parts thereof, and such as constitute the foundation of the action will control the allegations of the pleadings. The two ordinances in question and the notice served' by the city on appellee are made part of complaint. 68- Ark. 263; 104 Ark. 459; 99 Ark. 218; 135 Ark".' 38. When a franchise is granted and accepted, it constitutes a binding contract. 70 Ark. 300; 80 Ark. 125; 138 Ark. 393. Ordinance granting franchise not required read a sprovided in § 7502, C. & M. Digest. 153 Ark. 1; 100 Ark. 496. Ordinance granting franchise legislative act. 101 Ark. 227. Not impeached by parol evidence. 76 Ark. 205; 66 Ark. 472; 88 Ark. 265. The evidence accepted became a contract and cannot be varied or contradicted by parol testimony. 113 Ark. 517. Demurrer admits no alleged fact not legally susceptible of proof. 72 Ark. 119. Ordinance, with or without word “now” claimed to have been omitted in publication, has the same meaning. Allegations of the complaint show that the ordinance granting the franchise was accepted. 153 Ark. 1. There is no ambiguity .about the ordinance. Its meaning is clearly apparent from its terms.

      TJ. L. Meade and Mahoney, Yocum S Saye, in reply.
    When the facts stated, together with every reasonable inference therefrom, constitute a cause of action, the demurrer should be overruled. 91 Ark. 404; 70 Ark. 161; 77 Ark. 351. The beginning of the doing of any one of the four things required by the ordinance was not a compliance with its terms.- 55 Ark. 362.
   McCulloch, C. J.

The council of the city of El Dorado passed an ordinance on August 17, 1922, granting a franchise to J. A. Rowland and eight other citizens of the municipality to construct and operate a system for furnishing light and water in the city, and the franchise was subsequently assigned by the original holders to the Citizens’ Light & Power Company, a domestic corporation. Prior to that time a franchise, for" similar purposes, not exclusive, had been granted to the Arkansas Light & Power Company, and that company is' operating in the city. • ' '•

On August 25, 1922, the city council passed another .ordinance,, revoking the ordinance, of August 17, 1922, granting, the franchise held by appellee, Citizens’ Light & Power Company, and on December 2, 1922, the, present action was instituted in the chancery court by the city against appellee to restrain appellee from asserting rights and proceeding to operate under the franchise which the council had undertaken to revoke.

The court sustained a demurrer to the original complaint, and appellant filed an amended complaint, to which the court also sustained a demurrer. Appellant stood upon its amended complaint, and declined to further amend, so the complaint was dismissed, and an appeal has been prosecuted to this court.

The validity of the franchise is attacked on three grounds: first, that the ordinance was not properly passed, in that it was read three times at the same meeting, and placed on its final passage without a suspension of the rules; second, that the passage of the ordinance was procured by false and fraudulent misrepresentations on the part of the promoters concerning its contents; and third, that there was a material change in •the phraseology of the ordinance after its enactment and before publication.

Answering the first ground of attack on the validity of the ordinance, it is sufficient to call attention to the fact that this question has already been expressly decided-by this court against the contention of appellant. We held in Barnett v. Mays, 153 Ark. 1, that the statute (Crawford & Moses’ Digest, § 7502) requiring that “all by-laws and ordinances of a general or permanent nature shall be fully and distinctly read on three different days unless two-thirds of the members composing the council shall dispense with the rule, does,not apply .to an ordinance or resolution entering into a special contract. ’ ’ In that case we were dealing with an ordinance identical in character with the one now under consideration, and which granted a franchise authorizing the operation of an electric light plant. Counsel for appellant seek to make a distinction between the two cases because the court in the Barnett case used the words “special contract,” and that the contract under consideration. in that, case was more restricted than the one in the present case. The nse of the word “-special” may have been, inapt, bnt the effect of the decision was that the statute quoted above has no application to an ordinance or resolution entering into a contract, and it is unimportant whether the contract is one more or less restricted in its character. The test as to the requirement of the statute is whether -or not the ordinance is one of a “general or permanent nature,” and unless it falls within that class the statute requiring a reading on different days or a suspension of the rule has no application. The fact that the franchise created ¡by the ordinance runs for a long period of time does not make it general or permanent. Of course, all ordinances enacted by city councils are not permanent in the sense that they cannot be repealed, but those which endure until repealed are deemed -to be permanent, and all others are not permanent. Ordinances of a general nature are those which are general and uniform in their application. It is clear, we think, that this point of attack on the validity of -the ordinance is unfounded.

The other two grounds of attack on the validity of the ordinance may be discussed and disposed of together.

Section 1 of the ordinance in controversy re-ads as follows:

“There is hereby granted to J. A. Rowland, T. H. Norris, E. L. Pye, J. H. Alphin, George S. Miles, Hopkins "Wad-e, H. M. Johnson, Neill 0. Marsh and B. W. Griffin, their heirs and assigns, the right and authority to build, equip, maintain and operate a light and water plant in the city of El Dorado, Arkansas, and to furnish electric light, power and current, and water for domestic and other purposes, to the inhabitants of all that part of the city of El Dorado, Arkansas, lying east of the Chicago, Rock Island and Pacific Railway Company’s main line tracks, a-s now located, with the right.to erect poles, string electric lines and lay water mains in any of the streets, avenues and alleys thereof, and to furnish -and supply.-the. inhabitants of any other part of the city - of El- Dorado, Arkansas, with electric lights, power or ■current, and with water, who are not being supplied and furnished with such light and water by the Arkansas ■' Light & Power Company; and the right to use the- streets, avenues and alleys of said city for said purposes is hereby granted. ’ ’

It is alleged in one of the paragraphs of the complaint that the passing of the ordinance was induced by false and fraudulent misrepresentations made by one of [the promoters to the city council, to the -effect that the .“franchise was being sought for the sole purpose of giving service to that part of the city of El Dorado east of the Chicago, Rock Island and Pacific Railway Company’s main line tracks, and only such other portions of the -city of El Dorado not then being served by the Arkansas Light & Power Company,” and that the ordinance was read to the council by the attorney for the promoters as containing language which showed only that intention.

There is another allegation in the complaint that the ordinance as read and passed contained the word “now,” so as to make that portion of it read that the franchise •was to cover the right of operating in “any other portions of the city of El Dorado not now being served by the Arkansas Light & Power Company,” whereas the word “now” was omitted from the publication of the ordinance.

The ordinance as published, as well as the minutes of the city council, are exhibited with the complaint, and we are permitted to look to them in testing the sufficiency of the allegations of the'complaint. In other words, the exhibits control the allegations of the loom-plaint. There are many decisions of this court bearing on this subject in regard to the effect -of exhibits filed with pleadings, and the rule recognized by them all is that, under the -statute requiring the filing of instruments upon which the cause of action, defense or counterclaim is founded (Crawford & Moses’ Digest, .§ 1222),;in. actions' of law, an exhibit is not considered a. part of the pleadings unless it is the foundation of the action (Eupers v. State, 85 Ark. 223), but that in suits in equity all exhibits to the pleadings are considered as parts thereof, and such exhibits as constitute the foundation of the action, defense or counterclaim will control the allegations of the pleadings. Beavers v. Baucum, 33 Ark. 722; American Freehold Land Mortgage Co. v. McManus, 68 Ark. 263; Koons v. Markle, 94 Ark. 572; Cox v. Smith, 99 Ark. 218. The effect therefore of the allegations of the complaint, when considered with the ordinance exhibited therewith, is that the alleged fraud consisted in a representation that the proposed ordinance only authorized the operation of a light and water plant in that part of the city of El Dorado lying east of the railroad track, and also on the west side of the track for the purpose of supplying inhabitants not being supplied with water and light by the Arkansas Light & Power Company.

"We think that the allegations show that there were no material misrepresentations, for the effect of the ordinance is in accordance with the alleged representations of the promoters, and we are also of the opinion that the omission of the word “now” did not make any material change in the effect of the ordinance. According to the language of the ordinance, as it now appears-exhibited, and when read with the word “now” included, it indicates the purpose to authorize the Construction of water pipe lines and electric wire lines into the territory west of the railroad for the purpose of supplying inhabitants not supplied by the other company. The controlling purpose was to furnish additional facilities for those not then being supplied in the territory west of the railroad, but the languge is not sufficient to limit the enjoyment of the additional facilities to those who were not being supplied at the time of the -passage of the ordinance. The facilities, once in operation -and available to all‘inhabitants, became of a public nature, and were open to -all who are so situated as to be able to take advantage of them. The franchise is of a public nature and is for the benefit of the public at large, and the service furnished thereunder cannot be denied to any inhabitant occupying a situation to receive the service and willing to pay for the same.

The language of sections 4 and 5 clearly indicates that authority was conferred to cover the territory west of the railroad which was occupied by the Arkansas Light & Power Company. Section 4 specifies how the poles for electric lines shall be set, and provides' that they shall be so placed “as not to interfere with any existing telephone or other wires.” Section 5 provides genei'ally for the construction, installation and operation of the light and water plants, and provides that lines may be run “for the purpose of reaching and supplying customers of water or electric current in other parts of said city who are not supplied by the Arkansas Light & Power Company,” and that the grantee of this franchise “shall have the right to use, in proper manner, and as herein provided, any street, avenue or alley for the purpose of making such extensions of electric lines or water mains, but the same shall be so constructed or laid as not to interfere with any present lines or mains, and that the same maj^ parallel or cross on said streets or avenues.” This language, as before stated, clearly shows an intention to permit the grantees of this franchise to cover the same territory and parallel the lines theretofore established by the Arkansas Light & Power Company.

Now, it is not conceivable that the framers of this ordinance and the members of the council in adopting it meant to permit the franchise to be operated merely for the benefit of those who, at the time of the passage of the ordinance, were not being served by the other company. Of course, the question of improper interference with the business of rival companies is not involved in the present litigation, for the other company is not a party to this suit. All that we can. decide now is whether or not appellee is exceeding the authority of its franchise in constructing its lines preparatory to operating them in the territory west of the railroad, and whether or not the passage of the ordinance was unlawfully procured or its language changed.

Our conclusion is that the allegations of the complaint are not sufficient to show any fraudulent misrepresentations or any material change in the language of the ordinance, for the effect of the ordinance is the same, with or without the alleged change, and the effect of the language used is in accordance with the alleged representations of the promoters.

It is next contended that the franchise was not in force at the time the revoking ordinance was passed, for the reason that the terms had not been accepted, either formally or 'by commencing operations thereunder, within the time specified.

Section 5 of the ordinance granting the franchise provides that the grantees, their successors and assigns, “shall, within three months after the passage and approval of this ordinance, begin active operations and work in the laying of water mains and the erection of electric light lines and poles and the construction of sufficient power plant and the procurement of a sufficient water supply therefor, and shall prosecute the same with diligence to a completion so as to furnish adequate electric current and water supply to the more populous section of that part of the city of El Dorado lying east of the main line of the Chicago, Rock Island and Pacific Railway Company, and shall at all times be required to extend their water mains and electric lines along any street, avenue or alley thereof where such extension will accommodate one customer for either water or lights, or both, as the cáse may be, to each 100 feet of such extension, and for the purpose of reaching and supplying consumers of water and electric current in other parts of said city who aré not supplied by the Arkansas Light & Power Company.”

Section 7 of the ordinance reads as follows:

“If the powers herein granted are not exercised within -six months 'from the date hereof, this franchise shall thereupon become ipso facto null and void, but, if exercised and while the grantees herein, their successors and assigns, are engaged in performing the services contemplated herein, the same shall be in full force and effect for twenty-five (25) years from date hereof.”

It is contended that, according to the allegations of the complaint, which must on demurrer be taken as true, there was no acceptance of the ordinance by commencing operations thereunder within three months. Counsel present- many authorities to the effect that an ordinance granting a franchise is a mere offer, and does not become a contract until it is accepted and operations begun under it. It is unnecessary to go further than to consider our own decisions on this subject, where we have held that such a franchise is not binding until “accepted and acted upon in accordance with the terms o.f the franchise.” Hot Springs Electric Light Co. v. Hot Springs, 70 Ark. 300; Lackey v. Fayetteville Water Co., 80 Ark 108. Those cases held, however, that when-such an ordinance is accented and acted upon by the performance of the terms specified therein, it becomes a- binding 'contract which is not revocable at the will of the grantor. Treating- the law on this subject as settled in accordance with the contention of appellant, it remains 'only to consider whether the allegations of the corn-plaint 'ai-é -sufficient to- show a failure to begin operation's within '"the-'time-specified.- ■

- Now, it is the contention of counsel that the'language of .the ordinance should be interpreted as requiring that operations should have been begun in'the/construction of each feature of./the utility within, the .time 'specified; That is, that, in order to fasten the/franchise as! a contract, the grantee niust have commenced laying water mains, the erection of light poles and lines, the construction of a power plant, and the procurement of- a water supply. We do not so interpret the contract.' The franchise is treated as a unit, and the requirement of the ordinance is, as already seen from the quotation, that the grantee shall begin operations and work under the franchise towards the construction of the facilities for furnishing service under the franchise. We think that the -only requirement was that the work should be substantially commenced — not each feature of the work, but a commencement of the construction of the facilities as a single unit. What the framers of the ordinance meant was that there should be an acceptance by the commencement of operations within the time specified. The other section, which requires that the franchise be operated so as to furnish facilities within six months, means that there must be a completion of all the features of the service — that is, both water and light — so as to constitute an operating plant. Now, a consideration of tlie language of the complaint discloses a general allegation that work had not been commenced within three months from the date of the approval of the ordinance, but there are other statements in the complaint which are contradictory and show that work had in fact been commenced, in the erection of poles and the stringing of wires, before the expiration of the time. In testing the sufficiency of. the allegations of the complaint it is proper for the court to take into consideration the contradictory allegations, and, when the different statements are read together, we think there is not sufficient to show that work had not been, commenced, pursuant to the franchise, within the meaning which' should be .given to the language used. Of course, the complaint constitutes, perhaps, a sufficient allegation that the work was not commenced upon .all the features of the enterprise, that is to sáy, .in. .the construction of the plant,, laying the water mains, and the"erection of tlie poles -and wires, but, under the interpretation we have -given to this provision of the work, we' 'think the allegation is not sufficient to show that there was no substantial amount .of work done within the ninety days specified. The court was therefore correct in sustaining the demurrer to this feature of the complaint.

The final contention of counsel for appellant is that the franchise Avas not intended to cover the territory east of the railroad, 'but Ave haAm already disposed of that contention in discussing the attacks upon the Amlidity of the ordinance.

Upon the Asdiole, Ave are of the opinion that the complaint fails to state a cause of action in any respect, and that the court propeidy sustained the demurrer.

Affirmed.


author: Hart, J.

text:
    Clark v. Smith.
    Opinion delivered May 7, 1923.
    Vendor and purchaser — cancellation op contract — remedy op purchaser. — 'Where a bank sold land to A, who resold to B, and A .transferred B’s notes for the purchase money to the bank, in ■a subsequent suit by B to cancel the sale from A to himself for breach of the contract of sale, he was not .entitled to recover from the bank the amount paid by him on the purchase money, as the bank was .not a party to the sale to him, nor 'bound by its terms.
    Appeal from Marion Chancery Court; Ben F. Mc-Mahan, Chancellor;
    affirmed.
    Appellant pro se.

    The court erred in declaring the lien of Smith superior to the lien of Clark. When the court ordered the contract of sale rescinded, it should have placed the parties in statu quo by requiring the bank to return to Clark the money paid. Smith Avas not an innocent purchaser. Erred also in dismissing appellant’s cross-comp]aini against the bank.

      Crump S Crump, and Oscar 'W.- Hughes, for appellees.

      The court properly dismissed .appellant’s complaint against the bank for want of equity. Smith was the legal holder of the note for value, and the court rightly held the mortgage securing its payment a first lien on the land. The decree should not be disturbed.
   Hart, J.

0. 0. Smith brought this suit in equity agaixxst M. A. Clark and Faithy Clark, his wife, to reform a mortgage on real estate and to foreclose the same.

The defendants filed an answer in which they denied all the material allegations of the complaint, and by way of cross-complaint asked that the Bank of North Arkansas and R. T. Youixg be made parties to the action, and that the contract for the sale of the land in question to the plaintiff by R. T. Young be rescinded.

It appears from the record that on the 20th day of October, 1919, R. T. Young and M. A. Clark entered into a contract in writing whereby the former sold to the latter his farm of 1511/2 acres of land in Marion County, Ark. The agreement recited that both parties had deposited a check for $500 each, payable to the other, dated January 1, 1920, upon the condition that if either party failed to carry out the contract on his part the check s'hoxdd be collected and paid to the other party.

The agreement further provided that, if both parties should fulfill the contract, then the check deposited by the purchaser should be collected and applied to the purchase price. The consideration recited in the contract was $4,500. In addition to the $500 already .mentioned, it provided that $1,000 should be paid on Jan. 1, 1920; $1,500 on Jan. 1, 1921, and $1,500 on Jan. 1, 1922. This' contract was prepared by the cashier of the Bank of North Arkansas, and was deposited in the bank, together with the check of each of the parties for the sum of $500. At that time the Bank of North Arkansas held a mortgage on the land to secure an indebtedness owed it by R. T. Young.

Before the 1st of January, 1920, Clark paid into the bank $1,000 in cash, and the bank cashed the $500 check which had been left there with his contract. Both of these amounts were applied on the purchase price of the land. The bank suggested to Clark that he execute to it a mortgage for the deferred payments. Clark told the cashier that it made no difference to him, if he could got his warranty deed, as provided in the contract, and an abstract showing a merchantable title. Clark executed his note to the bank for $3,000, the balance of the purchase money, which belonged to the bank, and also executed a mortgage in its favor on the land in question to secure said note. There was a misdescription of a part of the land in the mortgage. Subsequently the bank assigned the note and the mortgage to secure the same to O. 0. Smith for value received.

It appears from the record that R. T. Young committed a breach of his executory contract to convey the land to M. A. Clark by warranty deed, owing to the fact that he failed to furnish an abstract of title showing a good and merchantable title in himself. Inasmuch as it was decreed that the executory contract of sale by Young to Clark should be rescinded, and no appeal has been taken from that part of the decree, it will not be necessary to abstract .the testimony on this point. While..the chancery court found that the executory Contract of -sale from Young to Clark should be rescinded, it also found that there was no fraud or liability of any kind on the part of the Bank of North Arkansas, or on the part of 0. 0. Smith, and that the cross-complaint of M-. A. Clark as to them should be dismissed for want of equity.

It is this part of the decree which Clark and his wife seek to reverse by this appeal. The chancellor was right in holding that their cross-complaint against the Bank of North Arkansas and Smith should be'dismissed for want of equity. As we have already seen, thq record shows that, at the time the contract for the- sale of - the land, between Young and Clark was executed, Young owed the bank for the purchase price of the land. When Clark made the payment of $1,500 on the purchase price of the land to Young, the bank suggested that he should execute to it a mortgage for the balance of the purchase money, ■which he did. The 'bank had the right to adopt this course and to obtain security for the amount which Young owed it, and to secure which Young had already given the bank a lien on the land. Hence the bank secured no greater lien by taking the mortgage from Clark than it already had. This is conceded by Clark; but he contends that the bank should be required to refund him the $1,500 which he paid on the purchase price, in order that he may be placed in the same situation as he was before he contracted to purchase the land from Young. The bank had nothing whatever to do with this contract, and was not a party to it. The cashier of the bank merely wrote the agreement as an accommodation to Young and Clark. The hank was in no wise a party to the agreement, and was not bound b}r its terms. It was not bound in any manner whatever to guarantee that Young could carry out the contract on his part, and was not liable to Clark for a breach of the contract by Young. Therefore the court properly dismissed the cross-complaint of Clark for want of equity. The record shows that the mortgage indebtedness .was due and unpaid, and that there was a mistake in describing a part of the land which it was intended by the parties should be embraced in the mortgage. Hence the court was right in decreeing a reformation of the mortgage and in foreclosing the same.

It follows that the decree must be affirmed.