author: Wood, J.

text:
    Prairie County v. Radican.
    Opinion delivered July 4, 1927.
    1. Officers — construction of statute fixing compensation.— Where a provision of law fixing the compensation of an officer is not clear, it should he given the construction which is most favorable to the government.
    2. Counties — compensation of county surveyor. — Where the county judge ordered the county surveyor as such to do certain work in connection with the county roads, the surveyor was not entitled to recover more than $5 a day under Crawford & Moses’ Dig., § 4596, as amended by Acts 1921, p.' 298, § 1, and an agreement between the county judge and the surveyor that the compensation therefor should be $10 a day was unauthorized.
    Appeal from Prairie Circuit Court, Northern District ; George W. Clark, Judge;
    reversed.

      W. J. Waggoner, Gregory & Holtsendorff, Trimble & Trimble and Cfhas. A. Walls, for appellant.

      Cooper and John D. Thweatt, for appellee.
   Wood, J.

W. Radican, the county surveyor of Prairie County, was directed by the county judge-of that county to do some surveying where certain contractors were building and repairing public roads of the county. The county judge agreed with Radican that he. should receive $10 a day for himself and $2.50 a day for his helper. The county judge endeavored to have the county surveyor do the work for $5 per day, but Radican refused, stating that he could not do it as county surveyor. The county judge directed him to do the work as civil engineer, and the judge stated that he did not expect Radican to do the work because he was the county surveyor. He had confidence in his ability, and employed him to do the work as civil engineer and not as county surveyor.

Eadican testified that his duties’wer e to survey lines and locate corners as county surveyor. He had done similar work for' other engineers, and charged $10 per day and his expenses. He had been doing- other work, such as laying out corners, surveying rice farms, levee work and ditch work for years, and had been getting $10 per day. The customary price for such work was between ten and twenty dollars per day. When the work was completed he presented his claim to the county court, charging for such work the sum of $10 per day. The total amount of the claim presented was $195, hut only $140 of this was for work done under the direction of the county judge. Witness was issued scrip for the sum of $140. The county court of Prairie County called in all outstanding warrants for reclassification, and Eadican’s warrants were reclassified and ordered reissued on the basis of $5 per day instead of $10 per day, as claimed by him.

The issue as to whether Eadican was entitled to $10 per day for his services instead of $5 per day reached the circuit court on appeal. That court held that he was entitled to $10 per day for his services, and rendered a judgment in his favor for the entire sum claimed by him against the county, holding that he was entitled to the sum of $10 per day for his services under the contract with the county judge. From that judgment the county duly prosecutes this appeal.

Section 4596 of Crawford & Moses’ Digest provides that the county surveyor shall be allowed fees.as follows: for each day he may be engaged, either under order of the court or otherwise, $5. This section of the Digest was amended by act 224 of the Acts of 1921 so as to read as follows: “For each and every day he may be engaged, either under an order of court or otherwise, .$5. The term ‘each day .he may be engaged’ shall include the day or days necessarily required in going from the home of the surveyor to the premises to be surveyed and then returning to his home.”

The only question for decision is whether or not, under the above statute, the county judge of Prairie County was authorized to employ the appellee, who was surveyor of the county, to perform the services which he rendered the county and to pay him for such services the sum of $10 per dáy. The statute is unambiguous, and leaves no room for construction. The work was done by the appellee, for Prairie County under the order of the county judge.

Sections 6985 to 7091, Crawford & Moses’ Digest, inclusive, is a chapter designated “Logs and Logging.” Under that chapter the county surveyors are, by virtue of their office, made timber inspectors, and when they are called upon, as they may be under the provisions of that chapter, by the owners of logs, timber or lumber, to perform duties prescribed by that chapter in the scaling and measurement of logs, etc., they are allowed for that service certain fees therein designated. See § 7003, C. & M. Digest. Sections 1861 to 1866 define certain duties of county surveyors with reference to making surveys of county lines when called upon by the county courts, and prescribe compensation for such services. Section 1866 provides: “The accounts of such surveyors shall be paid by their respective counties and each surveyor shall be allowed the sum of four dollars for each mile surveyed and marked and five cents per mile for traveling from his place of residence to such line and back.” Sections 1884 to 1905, inclusive, define and prescribe certain other duties and obligations of the county surveyor. Sections 5232, 5242 and 5243 prescribe the duties of county surveyors with reference to assisting viewers, when called upon, in laying out and surveying or altering any roads that may be ordered laid out, surveyed, or altered by the county court. The compensation allowed surveyors under § 5243,. supra, is $5 per day for each day necessarily employed therein be charged as costs and expenses paid out of the county treasury.

Section 9930 of C. & M. Digest provides that the county court may call upon the surveyor to make surveys of sections or parts of sections under certain circumstances therein designated for purposes of taxation, and makes it the duty of the county surveyor to promptly comply with and obey such order of the county court. These are the statutes concerning county surveyors.

Article 6, § 46, of the Constitution of 1874 provides, among other things, for the election of “one county surveyor for the term of two years, with such duties as are now or may be prescribed by law.”

Now, it was not contemplated by the framers of the Constitution and the makers of the above statutes that the county judge and the county surveyor could enter into contracts affecting the public service for which they could fix any other compensation for such services than that prescribed by law. In other words, our lawmakers did no't intend that public officers should enter into contracts affecting the public service as private individuals and arrange compensation for such services as though private individuals were contracting with each other with reference to the services to be performed. When these officers enter into contracts affecting’ the public service they cannot divorce themselves from the duties and responsibilities of their office and the compensation fixed by law for such duties; and, unless some special compensation is prescribed for the duties they perform by virtue of their office, they are not allowed to charge extra compensation for same.

In Allen v. Davis, 138 Ark. 154, 211 S. W. 151, we said: “This court is committed to the doctrine that fees can only be-taxed as costs when authorized by statute and that statutes allowing' fees are to be strictly construed and pursued.” See cases there cited, and, in addition to these, Independence County v. Young, 66 Ark. 30, 48 S. W. 676; Darden v. Sebastian County, 73 Ark. 305, 83 S. W. 1048; Keeling v. Searcy County, 88 Ark. 386, 114 S. W. 925; Swaim v. Lonoke County, 167 Ark. 225, 268 S. W. 366.

.In the last case it is said: “It is the settled rule of construction of statutes similar to the one under review that, where the provision of law fixing the compensation (of an officer) is not clear, it should be given the construction most favorable to the Government. ”

The work which appellee was employed to do was in connection with the public roads. The county judge ordered him to do the work, and, while he testified'that he did not expect him to do the work as county surveyor, he further testified that, as county judge, he did order the appellee to do the work, and tried to get him to do it for $5 per day. The testimony shows conclusively that the county judge ordered the appellee to do the work, and that it was work on the public roads which the county judge was having done. We believe it conclusively appears from the testimony of the county judge that he ordered the appellee to do the work because he was the county surveyor, for the county judge, in his cross-examination, testified: “ I tried to get him to do the work at $5 per day, and he said he couldn’t do that. He said he could do it as county surveyor but couldn’t do this work for $5 per day.” He further testified that-he did not expect the appellee to do the work because of the fact that he was county surveyor; that he did not think that he had to do it as county surveyor, but did not know about it.

The only conclusion which reasonable minds can draw from the testimony as a whole is 'that the county judge, as county judge, ordered the county surveyor, as county surveyor, to do the work in connection with the county roads, and they agreed that the surveyor should have as compensation for his services the sum of $10 per day, when the statute fixes the compensation of the surveyor, when engaged under order of the court or otherwise, at $5 per day.

It follows that the county judge and the surveyor had no authority to enter into such contract under the law. The judgment is therefore reversed, and the cause will be remanded with directions to the circuit court to render judgment in favor of the appellee for his services in the sum of $5 per day, and to certify its judgment to the county court, with directions to that court to allow the same.


source: Caselaw Access Project

license: Public Domain

text:
    Penn-National Hardware Mutual v. Griffin.
    Opinion delivered July 4, 1927.
    1. INSURANCE — itemized PROOF OF damage. — An insurance policy providing’ that in case of fire insured should separate the damaged rand undamaged personal property, and make an inventory thereof held not to require segregation and valuation of each item of merchandise in the stock, where there was a general damage to the stock; the damage being properly proved by testimony of experts as to the percentage of'loss.
    2. Evidence — testimony of merchants as to damage. — Testimony of merchants who examined insured’s merchandise after damage by smoke and water, estimating the loss in percentages of value of stock as a whole, held competent as that of experts in an action on a fire insurance policy.
    3. Insurance — construction of policy. — Insurance contracts must receive a reasonable construction, so as to effectuate the intention of the parties.
    4. Insurance — proof of loss. — Whether insured complied with notice and proof of loss requirements of fire policy held to present question for the jury.
    Appeal from Pope Circuit Court; J. T. Bullock, Judge;
    affirmed.

      McMitten & Scott, for appellant.

      Hays, Priddy & Borex, for appellee.
   Wood, J.

This is an action by J. L. Griffin, doing-business as Griffin Mercantile Company, hereafter called appellee, against the Penn-National Hardware Mutual of Huntington, Pennsylvania, issuing the National Fire Underwriters’ policy, and the surety on its bond, the American Surety Company, hereafter called the appellants.

The appellee set np his policy of insurance, and alleged that, on the 13th of January, 1925, he sustained a loss by fire to his stock of goods in the sum of $1,446.51 and to his furniture and fixtures in the sum of $200, making a total sum of $1,646.51, for which he prayed judgment, with 12 per cent, interest, penalty, and attorneys’ fees.

The appellants entered a general denial to the allegations of the complaint, and alleged that .the appellee had been requested to set out in detail the amount of his loss, showing each item of merchandise and furniture and fixtures and the amount of loss or damage on each item. The appellants also moved the court to require the appel-lee to make his complaint more specific. In response to the motion to make more specific the appellee alleged that his damage was occasioned almost entirely by smoke and water, and was of such a general character that it was impossible for him to itemize specifically the articles damaged. The appellee further alleged that the fire was reported immediately, and an adjuster of the company looked over the loss and noted the amount of the damage to the appellee; that he had taken an inventory of his stock on January 1, 1925, twelve days before 'the fire occurred, which inventory he tendered to the appellants, and showed the purchases and cash sales up to the date of the fire; that appellee estimated his damage to his stock as being fifteen per cent, of the amount thereof at the time of the fire. The court overruled the appellants’ motion to make more specific, to which ruling the appellants duly excepted.

The appellee identified and introduced his policy, which was a regular standard form, insuring appellee’s stock of merchandise in the sum of $5,000 and his furniture and fixtures in the sum of $1,500, on- which the premium was $131.30. The policy contained a three-fourths clause, also a record warranty clause providing that the assured “will keep and preserve all inventories of stock taken and all books made and prepared showing the record of business transactions during the current year and the preceding calendar year, and that such books shall be kept in a fire-proof safe, and, in the event of loss or damage, the books and inventories are to be delivered to the company for examination or the policy would be null and void and no suit or action could be maintained thereon. The policy also contained the following provision:

“If fire occur, the insured shall give immediate notice of any loss in writing to this company, protect the property from further damage, forthwith separate the damaged and undamaged personal property, put it in the best possible order, make a complete inventory of the same, stating the quantity and cost of each article and the amount claimed thereon; and, within sixty days after the fire, shall render a statement to this company, signed and sworn to by said insured, stating the knowledge and belief of the insured as to the time and origin of the fire, the cash value of each item thereof, and the amount of loss thereon; all incumbrances thereon; all other insurance. * * * The insured, as often as required, shall exhibit to any person designated by the company all that remains of any property herein described * * * and shall produce for examination all books of account, bills, invoices and other vouchers, or certified copies thereof if originals be lost, at such reasonable place as may be designated by this company or its representative. ’ ’

The appellee testified that the fire which damaged his property originated in the City ‘Bakery, which was located next door to appellee, about 9:30 in the morning. It was caused by the explosion of a gasoline stove. The bakery was on fire when the fire department arrived. Lots of water was poured on the fire, and appellee’s damage was caused by water, steam and smoke. Everything was damp in appellee’s store, like on a foggy morning— steam, smoke and ashes all over the counters and showcases. The damage extended the entire area of’the store. Every one in there had to get out and stay out. The smoke stayed in the store about a couple of hoiirs. Appellee’s merchandise was out on display where people could see it, with price tags on everything, on the variety store order. The largest part of appellee’s stock of merchandise was exposed. Nearly everything that was hanging up was practically ruined. Lots of these goods appellee could not sell, and what he did sell he had to sell awfully cheap. Appellee had a balcony in the rear of his store, about ten feet square, which was a kind of store room where he kept everything, so as to give room downstairs for display. The appellee generally kept about half the stock up in the balcony. The rear of the store was in a terrible condition. The front was not quite so bad, but it was brown and black to the front. The greatest damage was in the rear of the store, where the smoke came from. There were cracks in the glass front windows, and the black smoke came out of those cracks. A third or half of the goods in- the balcony was wet and spattered. The water dripped through the balcony on the floor, and was as deep as the soles of your shoes on the floor. Appellee had to throw away two or three hundred dollars ’ worth of goods. He had on hand at the time goods of the value of $9,643.43. That was the estimate made from the inventory taken the first of the year, deducting therefrom the amount - of the purchases up to the time of the fire and the cash sales to that date. The appellee looked over his stock of goods carefully, and cleaned it up. He thought he was damaged 2-5 per cent, on his stock of goods, but concluded to settle, if the appellants were willing to pay, at 15 per cent. He placed .the.figures at 15 per cent, because he wished to induce appellants to pay without a lawsuit. Appellee stated that his furniture and fixtures in. the store were also damaged, and his testimony in detail explains how they were damaged, which damage he estimated to be at least $20. He estimated his entire damage at' $1,646.51. Appellee notified the insurance company the next day, and made proof of loss within sixty days. On January 24, 1925, the insurance company wrote to the appellee stating that it had been notified that appellee had sustained damage on account of smoke and water from the fire, and that the company had requested its agent, Col. J. W. Powell, of Little Rock, Arkansas, to represent the company in the adjustment of the loss, and that appel-lee would hear from him shortly in connection therewith. Col. Powell did not come, and in about a month and a half or two months an adjuster did come. In the meantime appellee received a letter from Col. Powell, the adjuster, dated March 2, 1925, in which he stated that he had received appellee’s letter of January 27, complaining-that appellee’s loss had not been adjusted, and stating that he knew nothing of appellee’s loss at the time he was in Russellville adjusting other losses; that, since he had received appellee’s letter, he had not had time to return to Russellville, but that he would get there as soon as possible. Appellee also received a letter signed by J. W. Powell, adjuster, dated January 28, 1925, in which he stated that the loss had been reported and that he would take the matter up as soon as possible, and advised the appellee to take an inventory of his loss and to write fully about it. In reply to this letter the appel-lee, on January 29,1925, wrote to Col. Powell, describing the nature of the fire, the result of same, and the injury and damage to his goods, and stating that he did not know what particular items to list; that it was a general smoke damage all over the store and a slight water damage, some of the goods being knocked down in the dirt and water by the firemen and others passing through the building at the time of the fire.

On cross-examination the appellee details further the character of damage that he sustained, and stated that he had only made a general estimate of his damage; that he did not furnish an estimate to Powell, the adjuster. He did not ask for any. Scott came to Russellville, and said something about the list, and that he wanted to see the goods, and was told by the appellee that most of the damaged goods had been sold or thrown away, and therefore he did not furnish any inventory. -Some of appel-lee’s goods were damaged about 80 per cent., some 50 per cent., and some not at all.

Another witness, who was a clerk in appellee’s store, testified that he took the inventory of the stock, and that it was between nine and ten thousand dollars. He testified to the general damage, and his testimony tends to corroborate the testimony of the appellee as' to such damage.

Another witness, a merchant who had been engaged in the mercantile business in Russellville for many years and had had an opportunity to inspect appellee’s store during and after the fire, stated that appellee had sustained a damage to his stock of goods by reason of the fire which, in his opinion, was between 15 and 25 per cent. Another witness, a banker, who had never been in the mercantile business, stated that, if he were buying the stock, he would discount it on the general reputation of a fire, and, in his opinion, the appellee had been damaged between fifteen and twenty per cent.

The owner of the building, who saw the condition of the stock of goods about two or three hours after the fire, stated that he considered the damage to the stock was perhaps twenty-five. per cent. He looked at the stock, and it seemed to be considerably damaged.

• The appellee introduced the insurance company’s bond in the sum of $20,000, binding the company to pay promptly all claims arising by virtue of any policy issued by the fire insurance company. ' The appellee introduced the chief of the fire department and two other members of the fire department, who testified to the effect that they were on duty and at the scene of the fire on January 13, 1925. Two of them testified that the appellee was not greatly damaged. The chief estimated that the damage was between two hundred and two hundred and fifty dollars — he thought that $250 would cover the whole loss.

F. W. Scott testified that he was the adjuster of the defendant insurance company; that he ■ called on the appellee in March, 1925, and asked him regarding his damage, and requested him to show the witness his inventory and his books, but appellee did not comply with his request. Witness asked appellee to show him some of the damage, but appellee replied, “Well, there is my stock — look it over.” When he asked appellee to show him the books or something to give him assistance so that lie could arrive at the loss, appellee replied, ‘ ‘ There is the stock— go to it. ’ ’ Witness walked around through the stock and found slight damage — couldn’t tell whether it was shop-worn or damaged by smoke. Witness was not given any assistance to arrive at any part of the loss. Witness was the first man on the ground to look after the loss, and the reason he did not get there sooner was that he was overcrowded. Witness was not the company’s representative except on this particular loss, which he had been asked to adjust by Mr. Powell, the adjuster of the company, four or five days before the witness came. Witness exhibited a proof of loss signed by the appellee showing that' it was signed 'and sworn to by appellee on March 11, 1925, with a notation thereon that same was received by the company on March 16, 1925. Witness further stated that appellee had put on a fire sale about the tenth of February, and witness believed, that all the damaged stock had been disposed :of, and it would therefore be impossible to arrive at any loss or damage to the stock.

The appellee was recalled, and testified that he had sent in two proofs of loss, both sworn to, and that one of them had been sent within the required sixty days. Witness had received no receipt for either, but he had a letter from J. W. Powell stating that he could not accept the paper purporting to be the proof of loss, which was the first one sent.

The appellants prayed the court to instruct the .jury to return a verdict in their favor. It was the theory of appellants that they viere not liable under the policy and bond unless the appellee could specify the articles of merchandise, furniture and fixtures damaged or lost by the fire, and place an estimate of value and damage on each item claimed to have been damaged or lost by reason of the fire. The appellants presented appropriate prayers for instructions setting forth their theory, which the court refused. The court instructed the jury, at the request of the appellee, to the effect that the burden was on the appellee to prove by a preponderance of the evidence the allegations of his complaint to the effect that his goods were damaged as alleged, and, if the appellee had done that and had complied with the terms of the policy in regard to furnishing the proof of loss, he was entitled to recover whatever damages he had sustained by reason of the fire, and that, in arriving at a verdict, the jury should take into consideration the value of the stock of goods at the time of the fire and immediately after the fire. The appellee had claimed that his stock of goods was worth fifteen per cent, less after the-fire than before; that this was an issue for the jury, and, if they found in favor of the appellee, the jury should return a verdict for whatever amount of damages they found he had sustained. If the jury found in favor of the appellants, they should return a verdict accordingly. The court also instructed the jury that, if the appellee had failed to furnish the proof of loss required by the conditions of the policy, their verdict should be in favor of the appellants.

The jury returned a verdict in favor of the appellee against the appellants in the sum of $1,631.50, with interest at six per cent, from March 14, 1925. Judgment was entered in favor of the appellee against the appellants for that sum, from which is this appeal.

The appellants contend that the appellee’s proof is too remote and speculative to entitle him to recover under the policy, because he does not point out the particular items of merchandise lost or damaged, or the particular articles of furniture or fixtures lost or damaged, nor specify the value of any particular item and the loss or damage thereto. This contention is wholly unsound. The policy under which the appellee seeks to recover insures his entire stock of merchandise to the extent of $5,000 and his furniture and fixtures to the extent of $1,500 “against all direct loss or damage by fire,” etc. There is a provision in the policy to the effect that the company shall not be liable beyond the actual cash value of the property at the time of the loss or damage, and such loss or damage shall be ascertained or estimated according to such actual cash value, with proper reduction for depreciation, however caused, and shall in no event exceed what it would then cost the assured to repair or replace the same with material of like kind and quality; said ascertainment or estimate shall be made by the insured and the company, or, if they differ, then by appraisers as hereinafter provided,” etc. In the notice of loss and proof of loss clause it is provided: “If fire occur, the insured shall give immediate notice of any loss thereby in writing to this company, protect the property from further damage, forthwith separate the damaged and undamaged personal property, put it in the best possible .order, make a complete inventory of the same, stating the quality and cost of each article and the amount claimed thereon.”

These provisions of the policy show that, where a loss occurs within the terms of the policy, the insured is entitled to recover to the extent of the loss, whether it be entire or partial, and he is entitled to make proof of the damage he has sustained fiy. any competent evidence of such damage. This court, in effect, has already ruled against the above contention of the appellants in the case of General Fire Ext. Co. v. Beal-Doyle Dry Goods Company, 110 Ark. 49, 56, 160 S. W. 889, 891 (Ann. Cas. 1915D, 791), where a similar question was presented, 'and where,.at page 56, we said: , “The witness showed that, by their long experience in handling goods of the land that were damaged, they had knowledge of the value of such goods before they were damaged; and the opportunity afforded them for the examination of the goods. after they had been damaged was sufficient to' enable them to estimate the extent of that damag'e. It was not necessary for them to count each piece,' or to measure the number of yards to the piece. Their familiarity with such matters enabled them to tell approximately what the per cent, of damage to the whole lot was by an examination of the piles of goods, without a minute examination of each particular piece. The testimony shows that the witnesses made an examination of the goods sufficiently specific and particular to enable them to testify that the goods were damaged 50 per cent, of their value. The testimony of these witnesses was manifestly to the effect that these goods, by reason of the damage they had sustained, were worth to appellee only half as much in the market where appellee would have to sell them as they would have been had they not been damaged. It was the opinion of experts about a subject-matter' of which they showed that they were thoroughly conversant. It was a subject-matter, too, that called for and made the testimony of experts proper. The opinions of witnesses having a special knowledge of a particular subject, a knowledge peculiar to them by reason of their observation and experience in connection with such subject, are generally admissible in evidence. The weight to be given to the testimony of such witnesses is for the jury, but it is competent for their consideration. St. L. I. M. & S. Ry. Co. v. Brookshire, 86 Ark. 91, 109 S. W. 1169; Combs v. Lake, 91 Ark. 128, 120 S. W. 977; see also Hutchinson v. Poyer, 44 N. W. 327, 78 Mich. 337.”

At least one of the witnesses who testified for the appellee, to^wit, the banker Neil, was not an expert, and if the appellants had objected to this testimony on that ground and that he was therefore an incompetent witness, the trial court doubtless would have excluded his testimony from the .jury. The other witnesses who testified as to appellee’s damage were merchants of experience in the business in which appellee was engaged, and had had an opportunity to examine appellee’s merchandise, furniture and fixtures, after the same had been damaged, and their testimony was therefore competent, under the doctrine of the above case, and tended to prove the appellee’s damage as set forth in his complaint. The court therefore did not err in refusing appellants’ prayer for a peremptory instruction directing the jury to return a verdict in their favor.

The appellants moved to require the appellee to make his complaint more specific by showing each item of property damaged, giving the amount he claimed it was damaged by smoke and water, and the appellants’ prayer for instructions, Áwhich, if granted, would have told the jury that the appellee was not entitled to recover because he had failed to make this itemized statement of the amount of his loss and damage on each particular article, and because he failed to separate the damaged property from the undamaged, making an inventory of the same, with the cost, quantity and amount claimed on said property.

Insurance contracts, like any. other contracts, must receive a reasonable construction so as to effectuate the intention of the parties to the contract. It would be wholly foreign to the purpose of the contracting parties to construe the language of the contract, such as that under review, to mean that, as a condition precedent to recovery, the assured must go through his entire stock, separating and segregating the loss on each item. Such is not in the contemplation of the parties where there is a general damage to the property insured, although, forsooth, some specific articles may escape damage entirely or may be only partially damaged, or all the articles not be damaged to the same extent. Such a requirement by the insurer of the assured would be wholly impracticable, especially where the policy covered a large stock of general merchandise and where the damage in its nature was general, covering in some degree the whole of the property insured. Such was the case here.

We have not set forth the testimony in detail, but it tended to prove that the entire store was blanketed in smoke and moisture as the effect of the fire, which continued for some tirne — two hours or more — and which proximately resulted in damage to the entire stock. Where such is the case the measure of damages may be ascertained as it was here.

In 33 C. J. 146, § 885, it-is said:

“The amount which plaintiff is entitled to recover generally depends upon the terms of the policy and the extent of the loss or injury, in connection with the pleading, and other controlling circumstances of the particular case, less amounts to which the company is entitled as credits or offsets on ;the amount, due under the policy. Plaintiff may be entitled to recover the full amount stated in the insurance contract, as in case of death under a life insurance policy, or in case of a total loss under a valued fire insurance policy. But, where the loss or injury is only partial, plaintiff ordinarily can recover only the actual amount of the loss or injury he has sustained, unless a specified amount is recoverable under the terms of the particular policy.”

The doctrine applicable here is expressed in R. C. L. as follows: ,

“Where all property was injured by fire, water, or smoke, the insured need take no steps to' segregate his property, under a policy which provides that damaged and undamaged property shall be separated and cared for in such manner as to protect the undamaged portion from further deterioration.” 14 R. C. L., page 1313, § 485.

It is not contended by appellants that appellee had not complied with the iron-safe clause; and the testimony tends to sustain appellee’s contention that he had complied with the notice and proof of loss clause.

The issues were submitted under correct declarations of law and there was evidence to sustain the verdict. No error appearing, the judgment is affirmed.


author: Hart, C. J.,

text:
    Robbins v. Plant.
    Opinion delivered July 4, 1927.
    Contracts — restraint op trade. — Whether a contract is void, as in restraint of trade, dependsi on the facts of each case, there being no hard and fast rule as to what contracts are void.
    Contracts — restraint op trade.- — -A person may legally purchase a business of another for the purpose of removing competition, with an- agreement on the part of the seller not to carry on the same business in the same place for a limited period of time.
    Contracts — preventing competition. — -A contract whereby the seller of a business is prevented from're-engaging in such business, so as to protect the buyer in the enjoyment of what he has purchased, and to enable the seller to get the full value of his property, including the good will of the business, does not prevent other persons from entering the business and does not injure the public.
    Damages — -liquidated damages. — Where the damages for breach of a contract are in their nature uncertain and difficult of ascertainment, the amount to be paid may be stipulated for by the terms of the contract.
    Damages — when liquidated. — The contract between the buyer and seller of the business, binding the seller in the sum of $10,000 not to re-enter -or assist any one in entering into the same business for 20 years, held intended to provide for stipulated damages, -and not for a penalty.
    Damages — reasonableness op liquidated damages. — The reasonableness of stipulated damages must be determined by the facts and circumstances at the time the contract was entered into, and not when the contract was breached.
    Damages — right to recover liquidated damages. — Where a contract provides for a definite sum -as the liquidated or stipulated amount to be paid upon a breach thereof, the amount so fixed may be sued for in case of a breach and it is not necessary for the plaintiff to prove any actual loss by reason of -such breach, as the contract substitutes the amount agreed upon for actual damages resulting* from the breaebi.
    Damages — stipulated damages not penalty when. — In a purchase of a gin plant for $10,000, half of which was for the value of the plant, and half for good will, stipulated damages of $10,-000 in case of breach by the seller of Ms covenant not to- re-enter or to assist any one in entering into competitive business for a period of 20 years in the same place, held not so disproportionate to the damage which might result from the competitive business as to show that the parties intended a penalty and not liquidated damages.
    9. Contracts — breach — 'Sufficiency of evidence. — In an action to recover stipulated damages for breach of the contract by the seller of a business not to enter into competition of the buyer, or to aid any one else in so doing, evidence held sufficient to warrant a finding that the seller aided and assisted another in setting up a rival gin in the territory embraced in the contract, entitling the buyer to recover stipulated damages.
    10. Trial — instruction singling out facts. — In an action to recover damages for breach of a contract for sale of a business, in which the seller agreed not to assist any one in entering into competition with the buyer, a requested instruction that the use, by the person aided in constructing a competitive business, of a public well on the seller’s land, consented to by the buyer, would not constitute a breach of contract by the seller, held properly refused, as singling out facts and making recovery dependent thereon.
    Appeal from "White Circuit Court; E. D. Robertson, Judge;
    affirmed.
    STATEMENT OF FACTS.' .
    W. E. Plant sued E. A. Robbins, W. L. Robbins and E. Blackburn to recover $10,000 damages for the alleged breach of contract by the defendants not to enter into competition with the plaintiff in the gin business or to aid or assist any one else in doing so for a period of twenty years in Kentucky Township, White .County, Arkansas. The defendants denied aiding and assisting any one to operate a gin in competition with the plaintiff at the place mentioned in the complaint, and denied that there was any consideration for said contract. The defendants also claimed that the amount named in the contract was intended as a penalty and not as liquidated damages.
    W. E. Plant was the principal witness for himself. According to his testimony, on the 17th day of February, 1923, he purchased a gin from E. A. Robbins, W. L. Robbins and E. E. Blackburn, under their firm name of E. A. Robbins & Company, and received a deed from them for the gin and lands on which it was situated, in the town of Rose Bud, in Kentucky Township, White County, Arkansas. He paid $1,000 in cash and executed notes for the deferred payments, all of which have been paid. Five thousand dollars of the purchase price was; intended to he for-the value of the gin plant and the remaining- $5,000 for the g-ood will of the business. On the same day, and as a part of the contract for the purchase of the gin, the defendants executed to the plaintiff a contract which is the basis of this suit, and which reads as follows:
    “Contract made and entered into on the 17th day of February, 1923, between E. A. Bobbins & Company, parties of the first part, and W. E. Plant, party of the second phrt, as follows:
    “The párties of the first part have this day sold to the party of the second part their entire gin outfit and gin right in Kentucky Township, White County, Arkansas, for the sum of $10,000,' payments of same being-described in deed of even date of this contract. If the party of the second part makes all payments when due as prescribed in said deed, then and in that event the parties of the first part bind themselves in the above mentioned sum to the party of the second part not to enter in the ginning business or aid or assist any one in entering into same for a term of twenty years from the date of this contract.
    “E. A. Robbins & Company,
    “By W. L. Bobbins.”
    Some time in the spring of 1925 C. L. Thompson built á gin in Rose Bud within an eighth of a mile of the gin of the plaintiff, and, in the fall of that year, entered into competition with the plaintiff. The land on which Thompson built his gin was bounded on two sideá by the land of the defendants. Thompson built life gin threé or four feet from his boundary line next to the defendant’s land. Frequently, in unloading- cotton, the horses would have to stand on the land of the defendants. Thompson also used water in operating his gin from a well on the land of the defendants. The only access had to Thompson’s land was through a park belonging to the defendants. Prior to the erection of the gin by Thompson, this park liad been closed, but the defendants opened it just prior to the time that Thompson built his gin. Sand and rock used in erecting the gin wore hauled from the land of the defendants. Thompson stacked wood which was used in the operation of his gin upon the land of the defendants. Plaintiff valued his gin property at $5,000 when he bought it from the defendants and valued the good will of the business at not less than $5,000. Other witnesses corroborated the testimony of the plaintiff to the effect that there'was no access to Thompson’s land except through the park belonging to the def éndants, and that this park had been closed until just prior to the erection of the gin by Thompson. Various witnesses also testified that, after the gin had been erected by Thompson, one of the defendants advised them to haul their cotton there, and told them that Thompson ginned the cotton cleaner than Plant.
    W. J. Walters was a witness for the plaintiff, and testified that he worked for Thompson sixteen or seventeen days while he was erecting his gin. He saw E. A. Robbins there twice a day while he worked there. Robbins came in the morning and once in the afternoon during the sixteen or seventeen days Walters worked there. Material for building the gin was assembled in the park belonging to the defendants. The park was closed until about the time the gin was built. The gin could not be reached except by going through the park belonging to the defendants. Sometimes Robinson and Thompson would talk thirty minutes while the work of erecting the gin was going on.
    According to the testimony of the defendants, they were not interested directly or indirectly in the erection of the gin by Thompson. They only allowed him to usé the water from their well because they understood that the plaintiff did not object to it. They did not grant Thompson permission to haul material from their land to be used in erecting his gin nor did they know or allow him to assemble material there for the purpose of erecting his gin. They were not interested in another gin being located in Rose Bud, except that they wished the farmers to have a gin which would gin their cotton clean. . ■ ■
    Other facts will be stated under appropriate headings in the opinion. '
    The jury returned a verdict in favor of the plaintiff in the sum of $10,000, and from the judgment rendered the defendants have duly prosecuted an appeal to this court. -
    • Tingling & Taylor and Brundiclge & Neelly, for appellant.

      John E. Miller and Culbert L. Pernee, for appellee.
   Hart, C. J.,

(after stating the facts). There is no hard-and-fast rule in this State as to what contracts are void as being in restraint of trade, and each case must be judged according to its own facts and circumstances. It is also well settled that a person may legally purchase the business of another for the purpose of removing competition, with an agreement on the part of the seller not to- carry on the same business in the same place for a limited period of time. Covenants of this kind operate to prevent the seller from engaging in a business which he sells, so as to protect the buyer in the enjoyment of what he has purchased and to enable the seller to get the full value of his property, including the good will of his business. In general this does not injure the public, because the business is open to all other persons, and there is little danger that it will suffer harm, if the busi- ■ ness is profitable. The agreement could in no sense prevent other persons from entering'the business, if they should see it was a profitable- one. Shapard v. Lesser, 127 Ark. 590,193 S . W. 262, and cases cited; Wakenight v. Spear & Rogers, 147 Ark. 342, 227 S. W. 419; and McSpadden v. Leonard, 159 Ark. 193, 251 S. W. 694.

The closest question in the case at bar is whether or not the $10,000 mentioned in the contract should be treated as a penalty or as liquidated damages. It is the settled law of this State that, where the damages for breach- of contract are-in- their nature uncertain and difficult of ascertainment, the amount to be paid may be stipulated for by the terms of the contract. In the early case of Williams v. Green, 14 Ark. 315, the court said that parties may stipulate the amount of damages for breach of an agreement “not to carry on a rival trade or business, within certain limits, where the .breach may consist in acts of frequent recurrence, and the damages are in some degree conjectural.” The case of Nilson v. Jonesboro, 57 Ark. 169, 20 S. W. 1093, is a leading case on the difference between liquidated damages land a penalty. In discussing the question the court said:

“The authorities, however, show that, where the intention to liquidate the damages is not obvious, the stipulated sum will be given the effect of a penalty if it exceeds the measure óf a just compensation and the actual damage sustained is capable of proof. (Citing authorities). But, where the contract is of,such a nature that the damage caused by its breach would be uncertain and difficult of proof, the sum named by the parties is generally held to be liquidated damages, if the form and language of the instrument are not unfavorable to that construction and the magnitude . of the sum does not forbid it.”

As said in Blackwood v. Liebke, 87 Ark. 545, 113 S. W. 210, “But the question is not as to the status of the parties at the time when the contract terminated, but as to the -status of the parties at the time they made the contract. It may be, as the contract works out, that it would be easy to ascertain the damages for the breach of it, or to prove that there were none. But, if the status of the parties at the time of the contest was such that it would be difficult or impossible to have anticipated the damage for a breach of it, and there was a positive element of damage, then,' under the authorities, there is no reason why that may not be anticipated and contracted for in advance.”

To the same effect see Wait v. Stanton, 104 Ark. 9, 147 S. W. 446; Welbourn v. Kee, 134 Ark. 361, 204 S. W. 220; Suter v. Mason, 147 Ark. 505, 227 S. W. 782; Foran v. Wisconsin & Arkansas Lumber Co., 156 Ark. 346, 246 S. W. 848; and McSpadden v. Leonard, 159 Ark. 193, 251 S. W. 694.

The same rule has been adopted by the Supreme Court of the United States, and the rule itself and the reasons for it are clearly stated in Wise v. United States, 249 U. S. 361, 39 S. Ct. 303, 63 L. Ed. 805. Mr. Justice Clarke, who delivered the opinion of the court, said:

‘ ‘ The result of the modern decisions was determined to be that, in such cases, courts will endeavor, by a construction of the agreement which the parties have made, to ascertain what their intention was when they inserted such a stipulation for payment of a designated sum or upon a designated basis, for a breach of a covenant of their contract, precisely as they seek for the intention of the parties in other respects. When that intention is clearly ascertainable from the writing, effect will be given to the provision, as freely as to any other, where the damages are uncertain in nature or amount, or are difficult of ascertainment, or where the amount stipulated for is not so extravagant, or disproportionate to the amount of the property loss, as to show that compensation was not the object aimed at or as to imply fraud, mistake, circumvention or oppression. There is no sound reason why persons competent and free to contract may not agree upon this subject as fully as upon any other, or why their agreement, when fairly and understandingly entered into with a view to just compensation for the anticipated loss, should not be enforced.”

We are of the opinion that, tested by this rule, the agreement of the amount of $10,000 named in the contract in the case at bar should be treated as stipulated damages and not as a penalty. It is true that, according to the evidence for the defendants, the contract in question was not executed until after the deed for the land and the gin plant had been executed and delivered, and was entirely an afterthought on the part of the purchaser, and there was no consideration for it. On the other hand, according to the testimony of the plaintiff, the contract not to enter into the gin business in competition with him was a part of the consideration for the purchase of the gin plant from the defendants. The gin was an old one, and the plant itself was not worth more than $5,000. The plaintiff valued the good will of the business at $5,000, and, for this reason, agreed to pay $10,000 for the gin plant. The contract was to last for twenty years, and breach of it, in the very nature of thing’s, might be of frequent recurrence, and damages would be to some degree conjectural. The defendants might encourage or assist some one to enter into the gin business in competition with the plaintiff for a certain year, and the actual damage suffered might be small. However, if the plaintiff should bring suit for a breach of the contract, that would end the matter, and he could not bring a second suit if the defendants should, the next year or any subsequent year, induce others to set up a rival gin in the same place. As pointed out by this court, the status of the parties must be considered as of the date when they made the contract and not when it was breached. For this reason the reasonableness of the damages stipulated must be determined by the facts and circumstances at the time the contract was entered into, and the fact that no loss has in fact resulted from the breach of the contract does not affect the plaintiff’s right to recover. As .pointed out above, in making contracts in partial restraint of trade and stipulating for damages for a breach thereof, the seller has in view the obtaining the full value of the good will of his business in making the sale, and the purchaser has in view the right to protect himself in buying the' good will by preventing the seller from entering into competition with him. It is apparent that the good will would be at least materially lessened in value if the seller was at liberty to at once establish a rival business in the same place. Other cases holding that the amount stipulated in the contract as liquidated damages for a breach thereof which may be recovered in the event of a breach of the contract, even though no actual damages are suffered as a consequence of such breach, may be found cited in a case-note to 34 A. L. B. 134. Among the cases cited is that of the United States v. Bethlehem Steel Co., 205 U. S. 105, 27 S. Ct. 450, 51 L. Ed. 731, where the court approved the rule comprehensively stated and discussed in Sun Printing & Publishing Association v. Moore, 183 U. S. 642, 22 S. Ct. 240, 46 L. Ed. 366.

These cases hold that, if the contract provides for a definite sum as the liquidated or stipulated amount to be paid upon a breach thereof, then the amount so fixed, upon by the parties may be sued for; and it is not necessary for the plaintiff to prove any actual loss by reason of the defendants’ breach of the contract. All that is necessary to entitle the plaintiff, in such a case, to recover the stipulated sum, is to show the breach of the contract' upon which the payment thereof depends. In other words, the effect of a clause for stipulated damages is to substitute the amount agreed upon as liquidated damages for the actual damages resulting from the breach of- the contract, and thereby prevent a controversy between the parties as to the amount of damages.

The damages for a breach of a contract of this kind extend over a period of twenty years, and are uncertain, and, when the surrounding circumstances are considered,together with the purpose sought to be accomplished, -the' sum of $10,000 is not so extravagantly disproportionate to the damage which might result from the defendants entering into or aiding any one. else to enter'into the girt business in the territory named in the contract in competition with the plaintiff, as to show that the parties must have intended a penalty and could not have meant liquidated damages.

It is next contended that the evidence is not' legally sufficient to show that the defendants aided and assisted Thompson in setting up a rival gin in the town of Bose Bud, Kentucky Township. The testimony'oh this point" was conflicting, but the question was submitted to the jury on proper instructions. The evidence for the plaintiff, if believed by the jury, was legally sufficient to warrant a finding that the defendants' aided and assisted Thompson in setting up a rival gin in the territory embraced in the contract. According to the evidence adduced for the plaintiff, the defendants allowed Thompson to assemble his building material on their land and to pile upon, their land the wood which he used in operating the gin. The gin plant was erected within three or four feet of Thompson’s boundary line, and that it was apparent that the land of the defendants, which was next to it, must necessarily be used in unloading cotton at the gin. One of the defendants was there at the gin twice each day for fifteen or sixteen days during the erection of the gin. The jury might have inferred that he must have known these facts. In addition, he was seen to have frequent extended conversations with Thompson at the place where the gin was being constructed during the time of its erection. After the gin was put in operation, the defendants advised various persons to have their cotton ginned with Thompson, and said that it would be ginned cleaner by Thompson than by Plant.

The jury was instructed that the burden of proof was upon the plaintiff to show that the defendants in some substantial way aided or assisted Thompson in entering the gin business in the town of Rose Bud, and that, unless it should find these facts by a preponderance of the evidence, the verdict should be for the defendants. The evidence for the plaintiff is legally sufficient to sustain a finding by the jury that the defendants aided and assisted Thompson in setting up his gin and operating it, in violation of the contract.

The court also instructed the jury that, if the contract sued on was executed after the sale of the gin plant was consummated and was no part of it, then such contract was void, and the verdict should be for the defendants, in accordance with the principles of Kimbro v. Wells, 112 Ark. 126, 165 S. W. 645.

The respective theories of the parties to this lawsuit were fully and fairly submitted to the jury under proper instructions. It is urged, however, by counsel for the defendants, as a reason for a reversal of the judgment, that certain instructions asked for by the defendants were refused by the court. We do not deem it necessary to review these instructions or to discuss them separately, for the reason that, as above stated, in the instructions given at the request of the plaintiff and of the defendants, their respective theories were fully covered, and all disputed questions of fact were fairly submitted to the jury.

It is earnestly insisted, however, that the court erred in refusing' to give instruction No. 7 at the request of the defendants. The instruction reads as follows:

“You are instructed that, if you find from the testimony that C. L. Thompson had used water from a public well that was open to the public, though situated upon the lands of the defendants, or either of them, in the construction and building of his gin, and if you further find that the same was used by and with the consent of the plaintiff and without objection from him, then this fact would not constitute a breach of the contract sued on herein, and your verdict' should be for the defendants.”

There was no error in refusing to give this instruction. This court has frequently said that the trial court is not required to single out facts and make the verdict of the jury dependent upon whether they are true or not. The jury might have found that the plaintiff did not object to Thompson using water from the well’situated in the park of the defendant and still thought that the contract had been breached in other ways, as testified to by the witnesses for the plaintiff, and that, on this account, the plaintiff was entitled to recover the damages stipulated, if there was a breach thereof.

We find no prejudicial error in the record, and the judgment will therefore be affirmed.

Kirby-, J., dissents.


author: Smith, J.

text:
    Gray v. Jones.
    Opinion delivered July 4, 1927.
    1. BRIDGES — LIEN OF .HOLDERS OF BONDS OF DISTRICT. — Holders of 'bonds issued by a bridge district, issued pursuant to legislative authority, have a valid lien against the real estate situated within ,’ - the improvement district to secure the payment of such bonds at maturity.
    2. Bridges — allotment of highway funds. — The" State Highway Commission cannot be required to allot out of State highway funds .a sum sufficient to pay the maturing bonds and accrued interest of a bridge improvement district created by Acts of 1925, p. 977; Acts 1927, p. 17, § 6-, ‘ providing for allotment of funds to road improvement districts, imposing no obligation with reference to bridge improvement districts.
    3. . Bridges — validity of statute allotting highway funds. — Acts 1927, p. 17, relative to allotment by the State Highway Commission of highway funds to aid road improvement districts, held not to violate Amendment 14 of the Constitution of the United States, by denying equal protection of law, in failing to extend relief to bridge improvement districts under the same provision as for road districts, since the contribution to road improvement districts is a gratuity, which the State may give or withhold at will.
    Appeal 'from.- Independence Circuit. Court; 8. M. Bone, Judge;

    affirmed.

      T. A. Gray and McCaleb & McPaleb, for appellant.
   Smith, J.

At the 1925 session of the General Assembly, áct No. 338 (Acts 1925, page 977) was passed, creating Independence County Bridge District No. ' 1, and providing for the construction of a bridge across "White River on the State highway system at -or near the city of Batesville, in Independence- County, Arkansas, and for other purposes.

The preamble of the act reads as follows:

“Whereas, three main lines of the State system, one passing through the middle of the State from the northeast to the southwest, one passing east and west through the State, and one running in a northwesterly and southeasterly direction across the State through the city of Batesville, in Independence County, Arkansas; and whereas, all of said main lines of road cross White River at a point near the said city of Batesville, making it a public necessity for a bridge to be built across said river at said point for tbe benefit of public travel in tbe State of Arkansas. ” •

Section 1 of this act defined .tbe boundaries of tbe district, and provided for tbe making of by-laws and for. tbe election of tbe necessary officers and employees. Section 2 provides that “said district shall have power to construct and maintain a bridge, with necessary approaches and embankments leading thereto, be used as a public highway across White River, in Independence County, Arkansas, at tbe present location of Ramsey’s Ferry, practically adjacent to the city of Batesville, Arkansas, or as near to said ferry as tbe Federal authorities shall authorize and designate.”

To hasten tbe completion of tbe improvement the commissioners were authorized to borrow' a sum of money, not exceeding one-half of the cost of the improvement, and to issue bonds therefor, and, pursuant to this authority, bonds were issued in the sum of $187,000 by-the improvement district. A portion of these bonds matured in the year 1927, and interest on all' the bonds was payable in that year, and the holders- of these bonds have a valid lien against the real estate situated within the improvement district to secure the payment thereof.

• The purpose of this suit is to determine whether the State Highway Commission can be required to allot out of the State highway funds a sum sufficient to pay the maturing bonds and accrued interest of the said bridge improvement district in the year 1927. The relief prayed was denied, and the property owners have appealed.

The property owners who pray this relief say they are entitled thereto under the provisions of act Ño. 11, passed at the 1927 session of the General Assembly (Acts 1927, page 17). It is recited in § 1 of this act that it- is declared “to be the policy of the State to take over, construct, repair, maintain and control all the public roads in the State comprising the State highways as defined herein.” ■

■Section '2 of the act repeals certain sections of the highway act commonly referred to as the Harrelson Law.

By § 3 of the act it is provided that “the commission shall, as soon as possible, ascertain the amount of the outstanding valid bonds issued by road improvement districts in this State, the dates of the maturities thereof, and the annual interest due thereon, and it shall be the duty of the circuit clerk of each county to furnish the commission with such information. The commission shall each year, beginning with the year 1927, allot to each road district in the State now having outstanding bond issues an amount equal to its bonds maturing during the year plus a paying charge of one-eighth of one per cent, of bonds to be paid, and one-fourth of one per cent, of interest to be paid, and shall certify to the State Auditor the amount alloted to each road district.”

This section also provides that, in case the annual appropriation of $6,500,000 allotted to the road improvement districts by the act is insufficient to pay in full the maturing bonds and interest for the given year, the commission shall allot to each district its pro rata of such appropriation, and that, on or before the first day of September in each year, the commission shall certify to each road district the amount apportioned to it for the fiscal year, and that the commissioners for each district shall reduce the road taxes against each tract of land in the district pro rata in an aggregate amount equal to the contribution made from the State highway fund.

By § 4 of the act it is made the duty of the highway commission to construct the roads in the State highway system which are not now constructed, and that the work of construction shall be pushed as rapidly as funds are available for that purpose.

After thus specifically providing for the relief of the road improvement districts of the State, § 6 of the act provides that “The commission may let contracts for the construction of necessary bridges on the State highways, to be paid for out of the State highway fund. It may make contributions to other [bridges which it deems necessary on the State highway that may he constructed by bridge districts.”

Notwithstanding the provisions of the act quoted and referred to, the property owners in the bridge district insist that the act should be so construed as to require the Highway Commission to allot highway funds to the payment of the bonded indebtedness of bridge improvement districts, as well as those of road improvement districts. The argument is made that the bridge is an essential part of the State’s highways and is itself a highway, and that the act declared the policy of the State to take, over, construct, maintain and control all the public roads comprising the States highways, and that no reason exists for relieving the property, owners in road improvement districts that is not equally applicable to bridge improvement districts, and that to relieve one and deny relief to the other is to deny the equal protection of the law to the property owners in bridge improvement districts.

In reply to this argument it may be said that, by special acts passed at various sessions of the General Assembly, a large number of road improvement districts have been created, and a number of bridge improvement districts, the purpose of the first being to improve roads and that of the latter to build bridges.

Many of the acts creating road improvement districts contained authority for the districts to construct bridges, subways, culverts, and all other necessary appurtenances to said roads, but this authority was construed by this court tó mean such bridgns, etc., as were merely incidental to the road or necessary appurtenances thereto, and not bridges of such size and magnitude as would constitute separate improvements.

In the ease of Van Dyke v. Mack, 139 Ark. 524, 214 S. W. 23, a road improvement district undertook to construct a bridge across White River in Jlackson County, and we held that, however essential the bridge might be to the utility of the road, it could not be constructed as a part thereof, because its magnitude constituted it a separate improvement.. See also McAdams v. Henley, 169 Ark. 97, 114, 273 S. W. 355, 41 A. L. R. 629; Mack v. Paragould and Hopkins Bridge & Road Imp. Dist., 168 Ark. 867, 271 S. W. 958; Wimberly v. Road Imp. Dist. No. 7, 161 Ark. 79, 84, 255 S. W. 556; Bulloch v. Dermott-Collins Road Imp. Dist., 155 Ark. 176, 244 S. W. 327.

It has therefore been customary, when a bridge was desired and was essential to supply what would otherwise be a missing link in a highway, which was of such magnitude that its cost would be very considerable, to make it the subject of a separate improvement. It was not held that a district could not be organized to construct both a road and a bridge, but it has been held that an improvement district organized to improve roads could not build .bridges of such size and magnitude as to constitute separate improvements. See cases supra. .

In passing act No. 11 at the 1927 session of the General Assembly it must, of course, be assumed that the General Assembly was aware of the fact that both road improvement districts and bridge improvement districts had been created, and of the differences between them, and therefore to have intended only to relieve road improvement districts, when they were specifically referred to as such in § 3 of the act and no mention was there made of bridge improvement districts.

As we have pointed, out, § 3 of the act provides that “the commission shall, as soon as possible, ascertain the amount of the outstanding valid bonds issued by road improvement districts in this State,’’.and these are the obligations which, the Highway Commission is directed to pay in a sum not exceeding $6,500,000 per annum. No reference is there made to the obligations of bridge improvement districts. That these districts were not intended to be included in § 3 is shown by the concluding paragraph of § 6 quoted above.

In the one case a positive mandate is given to relieve road improvement districts to the extent of $6,500,000 per annum, if necessary, and in the other a mere discretion was imposed, but a clear- distinction between districts of the two kinds was made.

It is argued that no valid reason exists why relief should be extended to road improvement districts and denied to bridge districts, and that-to so construe the act renders it obnoxious -to the Fourteenth Amendment to the Constitution of the United States, in that it denies certain citizens the equal protection of the law.

We need not consider why the- Legislature should grant -relief in one case and withhold it in the other. We need only determine that it has been done, and this fact clearly appears. The right to make such a distinction was clearly recognized in the ciase of Cone v. Hope-Fulton-Emmett Road Imp. Dist., 169 Ark. 1032, 277 S. W. 544. That case involved the construction of act 147 of the Acts of 1925 (.Acts 1925, page 433), amending the Harrelson Road Law as to the allotment of -State highway funds to the various counties of the State, and it was insisted that, if the act were given a certain construction, it would render it unconstitutional as impairing the obligations of a contract, in that the State would not make the contributions which would otherwise be made under former legislation. We disposed of this contention’by saying:

“The Attorney General contends that, if the act be construed, as- above indicated, it would violate article 2, .§ 17, . of the Constitution, which prohibits the Legislature from enacting laws impairing the obligations of contracts. There is no merit in this contention. There is no contract between the bondholders of road improvement .districts and the State and Federal Governments under the Harrelson law by which, the revenue, of these governments must be applied to the payment of bonds. The bonds are secured by levies or improvement taxes levied on the assessment of benefits on the lands, according to the statute's under which the districts are created. If the State and Federal Governments, in aid of the taxpayers of improvement district taxes and the bondholders of the district,. set apart a portion of their revenues to be applied on the’ payment of bonds, such act on the part of the sovereign is a gratuity rather than a contract. ■ The sovereign has complete control over its revenue derived from taxation. ’ ’

So here the contribution which is made to the road improvement districts of the State is a gratuity which the State has the right to mate, and it may, for any reason satisfactory to its General Assembly, through which it acts, give or withhold this gratuity.

We conclude therefore that the court below was correct in holding that act No. 11 did not require the highway commission to make an allotment of the highway funds in payment of the bonded indebtedness of the bridge districts of the State, and the judgment so holding is therefore affirmed.


text:
    Purcell v. State.
    Opinion delivered July 4, 1927.
    1. Intoxicating liquors — possession of still. — Evidence that defendant was assisting others in unloading a still from the truck which they were taking into an old field held sufficient to support a finding that defendant was in. possession of the still.
    2. Criminal law-charge upon weight of evidence. — In an instruction that the jury could not convict defendant unless they believed beyond a reasonable doubt that he had the still in his possession, it was not error to strike out the following clause: “and fact that still was found at place testified to by witnesses, if you believe such to be the fact, and defendant was found there, are not alone sufficient to warrant conviction in this case,” held not error; the portion stricken out being objectionable as being on the weight of evidence.
    3. Intoxicating liquors — possession of still. — To be convicted of possessing a still, it was not essential that accused' have the sole and exclusive possession of the still.
    4. Criminal law — charge, on weight of evidence. — In a prosecution for possessing a still, it was not error to refuse an instruction that accused had a right to testify in his own behalf, and that the jury should give his testimony the same consideration they would give the testimony of other witnesses.
    5. CRIMINAL LAW — -INSTRUCTION AS TO CIRCUMSTANTIAL EVIDENCE.— In a prosecution for possessing a still, instructions dealing with the manner of weighing circumstantial evidence held properly refused, where the State did not ask conviction on circumstantial evidence.
    Appeal from Howard Circuit Court; B. E., Isbell, Judge;
    affirmed.

      U. P. Epperson, for appellant,

      H. W. Applegate, Attorney General, and Darden Moose, Assistant, for appellee.
   Smith, J.

Appellant was indicted for possessing a still, was convicted, and has appealed. For the reversal of the judgment he first insists that the verdict is contrary to the law and the evidence, 'and that the evidence was not legally sufficient to support the verdict.

The testimony on the part of the State was to the effect that appellant and three other men were found in possession of a still, which had been moved just after dark in a truck. Portions of the still had been unloaded from the truck and were being taken into an old field, and appellant was assisting. Appellant admits being in the truck, but testified that he had been picked up in a drunken condition by the men who were driving the truck, and who intended to take him home, and that he knew nothing about being in the truck until the morning after his arrest. This testimony is sufficient to support the finding that defendant was in possession of the still, his. explanation of his own connection being a question of fact, which has been passed upon by the jury.

The court gave what may be called the usual instructions, to none of which objection is made, except that the court modified the third instruction requested by appellant. Certain other instructions requested by appellant were refused.

The third instruction as requested by appellant reads as follows:

‘ ‘ The court tells the jury that you cannot convict the defendant unless you believe from the evidence in the case,- beyond a reasonable doubt, that he had in his possession a still (and the fact that a still ivas found at the place testified to by the witnesses, if you believe such to be the fact, and defendant was found there, are not alone 'sufficient to warrant a.conviction in this ease).”

The court modified the instruction by striking out the part inclosed- in parentheses, and this action is assigned as error.

No error was committed in modifying the instruction as indicated. The instruction as given told the jury that the defendant could not be convicted unless they believed beyond a reasonable doubt that he. had a still in •his possession. . It-was, of course, not essential that he have the sole and exclusive possession of the still. The portion of the instruction stricken out was objectionable as .a charge upon the weight of the evidence. Bullard v. State, 159 Ark, 435, 252 S. W. 584.

Instructions were asked by appellant upon the presumption of innocence and upon the subject of a reasonable doubt, but "the instructions given by the court fully and correctly declared the law of those subjects.

.The court refused to give instruction'numbered 8, requested by appellant, which reads as follows:

“You are instructed that the defendant has a right to testify in his own behalf, and you should give to his testimony the same fair and impartial consideration that you-give to the testimony of any other witness. You should. not arbitrarily disregard the testimony ' of the defendant merely because of the fact that he is the defendant.”. . .

In the case of Davis v. State, 150 Ark. 500, 234 S. W. 482, the court gave-an instruction on the right of the defendant to testify, which was objected to by him upon the ground that it was error to single out.the testimony of the defendant-in a separate change on"the. subject of the credibility of the witnesses. We did not reverse the judgment in that- case- because this- instruction was given, but wfe did say that, ' .‘while the practice of declaring the rule of law relative to the credibility of an accused .separate from other' witnesses is not commended, the court has ruled that it is not reversible error to do so.” ■

In the recent case of Smith v. State, 172 Ark. 156, 287 S. W. 1026, tlie court refused to give, at the request of the accused, an instruction substantially the same as instruction numbered 8 set out above, and approving’ that-ruling we there said: “Number 3 related to the rig’ht of appellant to testify in his own behalf. It is within the-discretion of the trial court to give lan instruction relative to the right of a defendant to testify in his own behalf, but it is the better practice not to refer to his right or rules governing his credibility and the weight to be attached to his evidence, but to allow him to take his place along with all other witnesses, under the general icharge relative to the credibility and weight to be attached to their testimony” (citing cases).

Instructions were asked dealing with the manner of weighing circumstantial evidence, but these instructions were properly refused, as the State did not ask a conviction on circumstantial evidence. See also Cooper v. State, 145 Ark. 403, 224 S. W. 726; Cummins v. State, 163 Ark. 24, 256 S. W. 622; Barker v. State, 135 Ark. 404, 205 S. W. 805; Garrett v. State, 171 Ark. 297, 284 S. W. 734.

No error appears in the record, and the judgment must therefore be affirmed, and it is so ordered.


text:
      Hopson v. Oliver.
    Opinion delivered July 4, 1927.
    1. DRAINS — PLEDGE OF REVENUES FOR PAYMENT OF BONDS. — Under Acts 1907, p. 890, § 9, the pledge therein contained of tlík’Wsessed benefits of the drainage district constituted in' effect a pledge and , assignment of a mortgage as collateral security for the payment ,of the bonds, and the revenues of the district must be first applied to the -payment of the bonds.
    2. Drains — use of revenue of subdistricts. — The revenue raised in subdistríets 1 and 2 of the drainage district created by Acts 1907, p. 890, could not be used to repair drains in, other subdistricts of the same district. ' ‘

      DRAINS — LIMITATION OF SPECIAL ASSESSMENTS. — Under Acts 1907, p. 890, § 8, providing that the aggregate amount of special assessments in the drainage district to be paid in any one year shall not exceed 10 per cent, of the amount of'benefits assessed upon' the-property, held that the limitation applied, not only to assessments to pay construction costs, but also to assessments to .pay maintenance costs.
    Drains — limit of assessments. — Under Acts 1907, p, 890, § 8, no repairs can be made in the drainage district thereby created after installments have been collected in an amount equal to the assessed benefits, as the amount of betterments assessed limits the amount which can be expended for any purpose.
    Mandamus — compelling commissioners to levy assessments.— One owning lands in several subdistricts of Western Clay Drainage District, created by Acts 1907, p. 890, who did not show that the assessed benefits would not be consumed in paying the drainage cost paid for by the bond issue, which was made a first lien against the betterments, nor that the relief prayed for could be obtained without exceeding the limit of benefits to be collected in any one year, was not-entitled to a mandamus to compel the commissioners to make the assessments necessary to keep the constructed ditches and levees in repair.
    Drains — authority to levy assessments. — Although authority may be conferred upon a drainage district to maintain’ improvements and to levy and collect assessments for that purpose, this right can he exercised only where it has been expressly conferred by statute.
    Drains — assessment and maintenance. — Acts 1909, p. 826, § 10, amending Acts 1907, p. 890, § 8, held not to confer authority to levy a separate assessment for maintenance.
    Appeal from Clay Circuit Court, Western Division; W. W. Bandy, Judge;
    reversed.

      F. G. Taylor, for appellant.

      Oliver é Oliver, for appellee. .
   Smith, J.

The Western Clay Drainage District was created;]^ special act No. 368 of the 1907 General- Assembly (Acts 1907, page 890). By paragraph (a) of § 8 of the act a general assessment was levied on the real property in the district “for the purpose of payijig the general expenses,” the same to be paid annually. The act further provided that the territory of the district -might be subdivided into subdistricts to construct such ditches and laterals as would afford special benefits to the territory in each subdistrict, to be paid for by tlie levy of special assessments against tlie lands therein. Five of such subdistricts were organized and special assessments were levied in each, and bonds were issued against these special assessments, and the plans of the improvement were executed by constructing the various ditches and drains.

Appellee Oliver is the owner of lands in subdistricts numbered 1, 2, 3 and 5, and he filed a petition in behalf of himself and all other landowners, in which he alleged that the commissioners of the district were not keeping the ditches cleared of all obstructions, as the act required, them to do, and he prayed a writ of mandamus requiring them to perform this duty. It was prayed that the commissioners of the district be ordered and directed to levy a special 'assessment upon each item of property in each subdistrict in proportion to the benefits estimated to have accrued'by reason of the construction of the improvement for which each subdistrict was formed.

The commissioners filed an answer, in which they admitted that the act directed them to keep the ditches clear of obstructions, and that willows had grown' up in the ditches and sandbars had formed which obstructed the flow of water; but they alleged their inability to clear the ditches, for the reason that all assessments of benefits against the lands had been pledged to the payment of the bonds of the respective subdistricts, and that all the money arising from the sale of the bonds had been expended in the construction work, and that there was no provision in the law for the assessment of additional benefits throughout the district or the subdistrict^ for. the purpose of clearing out the canals.

It was alleged, and the secretary of the district testified, that in subdistrict No. 1 benefits had been assessed amounting to $124,721 and bonds had been issued in the sum of $10Q,000, of which $55,000 were outstanding and unpaid; that in subdistrict No. 2 benefits amounting to $163,929 had been assessed and bonds amounting to $130,000 had been issued, of which $87,000 were outstanding and unpaid; that in subdistrict No. 3 benefits amounting to $52,885 had been assessed and bonds amounting to $50,000 had been issued, of which $40,000 were unpaid; that in subdistrict No. 4 benefits amounting to $37,280 were assessed and bonds amounting to $30,000 were issued, the amount of bonds-unpaid not being shown; and in subdistrict No. 5 benefits assessed amounted to $141,-427 and bonds in the sum of $110,000 were issued, of which $100,000 were unpaid. It was further shown that assessments against the benefits were being levied as follows : In subdistricts 1 and 2, nine per cent., and in sub-districts 3, 4. and 5, ten per cent.

There was neither allegation nor proof on the part of the landowners to show what the cost of clearing out the ditches would be, nor was it alleged that the commissioners have funds available for that purpose; on the contrary, the petitioner admits that the commissioners are not in possession of such funds, and he explains the purpose of this proceeding to be to require that these funds, be raised by special assessments levied for that purpose.

The court granted the relief prayed, and directed that the commissioners ascertain the amount necessary to clear the ditches, and to levy special assessments upon each item of property in each subdistrict in proportion to the benefits' that have heretofore been estimated to accrue thereto by reason, of the improvement for which the subdistrict was formed, in a sufficient amount and for the purpose of keeping the drains and levees in each subdistrict clean and in repair, and that the commissioners make such special assessments as frequently and at such times as-shall be necessary to keep such ditches and levees in repair. The- district has: appealed from that judgment.

The first question discussed is the authority of the commissioners to keep the canals clean. Of this there appears to 'be no doubt: The- original act charges the commissioners with this duty, and by § 17'of the'ámenda-tory act No. 278, passed át tbe 1909 session of the General Assembly (Acts 1909, page 820) the duty is reimposed.

The difficulty appears to be that the money is not available'for that purpose. It is pointed, out that subdivision (1) of § 9 of the act of 1907 provides that “this lav? shall be liberally construed to give to said assessment •list and the general assessment 'levied herein the effect of .a bona fide mortgage for a valuable consideration, and a first lien upon the. said property, as against all persons having' any interest therein,” and that the pledge of the assessed benefits under the provisions of the act for the payment of the bonds issued in the several subdistricts is, in effect, in law a pledge and assignment of a mortgage as collateral security for the payment of said bonds, and that the revenues of the district are required for this purpose and must be first so applied.

We think counsel is correct in his construction of the act. ... . .

Paragraph (p) of § 8 of the act of 1907 reads as follows:. “If, after the assessment and levy upon the property in any subdistrict shall have been made and the improvement therefor completed, or partially completed, the board of directors of said corporation shall be of opinion that the improvement-made or designed is insufficient in •size, width, depth, extent, or otherwise, or if the sums levied be insufficient to pay the cost of making the improvement,, a further levy or levies may be made, in all respects as in the case of an original levy, upon the . property situate in the said subdistricts, in order, and of sufficient amount, to make the improvement sufficient, ¡.or to complete the payment therefor; but the'aggregate amount of such special assessments to be paid in any one .year shall not exceed ten per centum of the amount of the .benefits assessed upon sijch property.” ■ ;

It thus appears that there is a positive inhibition against the levy, of an aggregate amount of such special assessments to be paid in any one year in excess of ten per centum of the amount of benefits assessed upon said property, and that subdistricts 1 and 2 are levying nine per centum and subdistricts 3, 4 and 5 ten per centum of this assessment. Districts 3, 4 and 5 cannot therefore increase their levy for any purpose in any one year, and subdistricts 1 and 2 could only increase their levy one per centum, and it is not alleged or shown that this increase would suffice to perform the order of the court.

In this connection it may be said that revenue which is raised in subdistricts 1 and 2 could not be used for the purpose directed by the court in the other subdistricts.

' Appellee insists that this limitation applies only to assessments intended to pay construction costs and does not apply to maintenance costs, and that the act contemplates that the canals be kept in repair, and that the costs of these repairs ma3, and in time probably will, amount to many times the assessed benefits, and of even many times the value of the land, and that there is no limitation on the cost of repairs.

"We think, however, that the act does not confer any such authority, and we concur in appellants’ construction thereof, that no repairs can be made after installments have been collected in an amount equal to the assessed benefits.

In the resolution authorizing the bond issue it was “resolved, ordered and determined” that a total special assessment “equal to the total benefits assessed be and the same is hereby levied and ordered collected from all the lands within the said subdistricts in amounts equal to the benefits assessed to each of the lands therein contained. ’ ’

By paragraph (o) of § 8 of the act of 1907 it was provided that, after the formation of any subdistricts, the district should have power to levy special assessments upon each item of property therein in proportion to the benefits estimated to accrue thereto by reason of the construction of the proposed improvement, and that the assessments may be made payable in annual installments for a period not exceeding twenty-five years, and that these assessments “shall be of sufficient amount in the aggregate to pay the whole cost of the improvement for t]ie making of wliieli the subdistrict was formed, and for maintaining the same, and may he levied annually until all of the expenses incurred in making of said improvement shall have been paid. Such levy may be made once for all or for any stated period of time. ’ ’

We conclude, therefore that the amount of better-ments assessed limits the amount which can be expended for any purpose, even that of maintenance. This is necessarily true as to construction costs, which, under the express inhibition of the Constitution, can never exceed the estimated 'betterments resulting therefrom, and, as appellee does not show that all assessed better-ments will not be consumed in paying the construction costs paid for by the bond issue, which was made a first lien against the betterments, it follows that mandamus should not have been issued.

In the case of Patterson v. Collison, 135 Ark. 105, 204 S. W. 753, it was held that mandamus is not a writ of right and should not be granted against an officer to compel him to pay out money in the absence of proof that he has money in his hands available for the particular purpose.

In the case of Coleman v. Eight Mile Drainage Dist. No. 2, 106 Ark. 22, 152 S. W. 1004, it was said:

‘ ‘ It is nowhere alleged in the complaint that the sum of the benefits originally assessed upon the lands in the district has not been exhausted nor that there remains of said amount of benefits so assessed a sum sufficient to pay and discharge the whole or any part of the warrant issued to the plaintiffs by the county clerk upon the treasurer for the balance due them under their contract, for the construction of the public drain. Such being the case, the allegations of the complaint are not sufficient to show a right upon the part of plaintiff to the relief prayed for. A writ of 'mandamus will not -issue unless there is a clear legal right to same shown and no other remedy provided, nor does it issue to compel any officer or tribunal to do that which the law will not compel him to do without the.mandate.”

It is not shown here what the cost of the repairs would he, nor that the sum of the' benefits originally assessed upon the' lands will not be exhausted in paying the construction costs without ■ making the repairs, nor was it shown that the relief prayed could be granted without violating the provisions of paragraph (p) of § 8 of the act of 1907 quoted above, limiting to ten per centum per annum the amount of benefits which may be collected in any one year.

The relief prayed should have been denied, and the-judgment of the court below is therefore reversed,- and the petition dismissed.

OPINION OP REHEARING.

In support of the petition for -rehearing filed by appellee it is insisted that the manifest purpose of the act was not only to authorize the construction of the proposed improvement, but to maintain it, and that this can be done only by the imposition and collection of' assessments in addition to those levied to pay the original construction cost, and that the act creating the district and the act amendatory thereof conferred this power.

There can be no question that authority might be conferred upon an improvement district to. maintain the improvement and to levy and collect assessments for that purpose, these being in- addition to those levied to pay the original construction cost. The case of Rosselot v. Greene & Lawrence Drainage District, 137 Ark. 53, 207 S. W. 219, expressly so decides, but this right can be exercised only where.it has been conferred-as it was in the special act creating the Greene & Lawrence Drainage District.

The property owner in that case had paid'the full amount of‘the betterment assessed against his property to pay the. construction costs and thereafter the commissioners of the drainage district extended an additional levy' against his land to pay the cost of cleaning out the ditches. The imposition of this tax was ;upheld, it'being said that section 20' of the act creating that district provided for the continuity of the district,, and that the directors might apply under that section to the county' courts of the two counties in which the district was situated, for an order levying additional taxes to clean out the ditches. Section 20 of that act reads as follows:

“Section 20. The district shall not cease to exist upon the completion of its drainage system, hut shall continue to exist for the purpose of preserving the same, of keeping the ditches clear from obstruction and of extending, widening or deepening the ditches from time to time as it may he found advantageous to the district.
“To this end, the directors may, from time to time, apply to the county courts of Greene and Lawrence Counties for the levying of additional taxes. Upon the filing of such petitions, notices shall he published by the clerics of Greene and Lawrence counties for two weeks in a newspaper published in said counties, and' any property owner seeking to resist such additional levy may appear at the next regular term of the county court óf the county in-which his lands are situate and urge his objections thereto, and either such property owners or the directors may appeal from the finding of the said county court.”

We find no such authority here. The act here under review provides for a general assessment- common to all property in the district and for special assessments in each of the subdistriots, and for those assessments only.

It. is the insistence of the property owner in the instant case that authority for additional assessments for maintenance is found in the amendatory act of 190-9 in which subdivision (o) of section 8 of the original act was amended. This amended section reads as follows:

“Section 10. That subdivision (o) of section eight •■(8) of said act be. amended so as to read as follows: After the formation, of any subdistrict under the provi- . sions of this act,.tlie .said corporation, shall have power to levy special assessments upon -each item of said property included therein, in proportion to the benefits estimated to accrue thereto by reason of the construction of the improvement, for the making of which such subdis-trict was formed. Said special assessments may, by said corporation, be made payable in successive annual installments, for a period not to exceed twenty-five years, and they shall be of sufficient amount in the aggregate to pay the whole cost of the improvement, for the making of which that subdistrict was formed, and for the maintaining the same, and may be levied annually until all of the expense incurred in malting of said improvements with interest shall have been paid. Such levy may be made once for all, or for any stated period of time. If such improvement shall be paid for by issuing bonds as hereinafter provided for, the amount of such levy shall be sufficient not only to pay the principal of such bonds at maturity, but also to pay the interest thereon, and to pay all necessary expenses of keeping the drains and levees clean and in repair. And such levy may be increased or decreased by the board so as to meet the obligations and demands of the district or to prevent the unnecessary accumulation of funds.” (Page 826, Acts of 1909).

This amended section does not confer authority to levy an assessment for both the construction and maintenance, but it provides that “such levy may be made once for all or for any stated period of time,” and that this assessment may be made payable in annual installments for a period not exceeding twenty-five years, and that they shall be of sufficient amount in the aggregate to pay the whole .cost of making the improvement and for maintaining the same, but this assessment is a single assessment, and, as is stated in the original opinion, it is not shown that the revenues derived under it are sufficient to meet the obligations of the district and pay for the maintenance cost as .well; and, as the original opinion also points out, the revenues of the district must be first applied to the discharge of the bonds of the subdistricts as they mature.

As we find no authority to levy a special and separate assessment for maintenance cost as existed in the case of Rosselot v. Drainage District, supra, the original opinion is adhered to, and the petition for rehearing will be overruled.