author: MoCulloci-i, C. J.

text:
    Arkansas-Louisiana Highway Improvement District v. Pickens.
    Opinion delivered October 26, 1925.
    1. Highways — nature of improvement district. — The various tracts of land in a road improvement district do not constitute independent units of the district, which is an entity created as a governmental agency for the purpose of carrying out the supposed will of the property owners.
    2. Highways — unity of improvement district. — While each tract in a road improvement district is separately taxed on the basis of the assessed (benefits to pay for the improvement, the whole of the area constitutes a single corporate entity for the purpose of constructing the improvement and raising revenue to pay for same.
    3. Highways — improvement district — lien of indebtedness. — Any indebtedness of a road improvement district incurred in constructing such improvement constitutes a charge upon the revenues of the whole district, and not upon the separate tracts of land.
    4. Highways — improvement district — foreclosure sales. — The commissioners of a road improvement district are representatives, not of the bondholders, but of the district in foreclosure proceedings to enforce the lien of assessments levied upon lands within the district; and when lands are purchased by the district at delinquent foreclosure sales and such sales are confirmed, they become the property of the district and not of the bondholders, and their total value is thereafter subject to sale to raise revenue.
    5. Highways — improvement districts — increase of annual installments. — Where the annual installments of taxes originally levied by a road improvement district are insufficient to meet the interest and bonds falling due, the commissioners of the district are authorized to increase such installments up to the limit of the total assessed benefits.
    6. Highways — improvement districts — notice of increase of installments. — There is no constitutional requirement, either express or implied, that notice shall be given to the property owners in an improvement district of the fixing at any time of the amount of the annual installments to be charged against the lands of the district; the requirement of notice having been complied with by the giving of notice and an opportunity to be heard upon the question of the amount of the total assessed benefits.
    Appeal from Deslía Chancery Court; E. G. Hammock, Chancellor;
    reversed.

      Ed Erice and Rose, Hemingivay, Cantrell & Lough-borough, for appellant.

      J. G. Williamson, Adrian Williamson and Lamar Williamson, for appellee.
   MoCulloci-i, C. J.

Arkansas-Louisiana Highway Improvement District was organized by special statute (Act No. 265, Session of 1917) for the purpose of improving a group or unit of roads situated in the counties of Ashley, Chicot, Desha, Drew and Lincoln. Pursuant to statutory authority thus conferred, public roads were improved and hard-surfaced to the extent of 154 miles, which were completed in the year 1922. Serial bonds running from the year 1921 to 1939, inclusive, were issued by the district, aggregating $2,800',000. The benefits to real property in the district were assessed aggregating $6,315,697.45, and taxes thereon were levied in twenty-one installments for the years 1919 to 1939, inclusive. The first two annual installments (1919 and 1920) were fixed at three per centum of the assessed benefits, and for the other nineteen years the annual installments were fixed at four and four-tenths per centum. These annual installments /thus aggregated 89.6 per centum of the total assessed benefits.

On .July 10, 1925, the commissioners of the district adopted a resolution increasing the annual levy of taxes, beginning with the year 1926 and continuing up to the end of the whole period, to five per centum of the assessed benefits, instead of four and four-tenths per cent-um, as originally levied. This increased the total amount of the annual installments to ninety-eight per centum of the assessed benefits. It appears from the agreed statement of facts on which the case was heard -below that the adoption of this resolution changing the annual assessments was prompted by the fact that there was a shortage in the revenues of the district for the year 1925, which caused a deficit of $29,000 on the matured bonds, and that this deficit was caused by the fact that for past years there were delinquencies in payments by property owners to the extent of about $125,000. It was shown that there were foreclosures on the tracts of land involved in these delinquencies, and that the lands were bought in by the district. As to some of the tracts, the statutory period of redemption from sale ha's expired, and in -others the right of redemption is still pending.

The four appellees are owners of real property in the district, and they instituted this action to restrain the commissioners from enforcing* the attempted increase of annual installments of taxes. The chancellor granted the relief prayed for, and the district has appealed.

The theory of learned counsel for appellees, which was adopted by the chancellor, is that the district consists of independent units of land upon each of which the bondholders, as creditors, have separate and independent liens; that the commissioners of the district in prosecuting the foreclosure proceedings to1 enforce the collection of taxes were representatives, not of the district, but of the bondholders, and that the delinquent lands when purchased by the commissioners become the property of the bondholders; that the district is entitled to a credit on the outstanding bonds to the extent of the assessed benefits on the foreclosed lands purchased by the commissioners for the bondholders, and that the uniformity of the taxation is destroyed if an increase be allowed on annual installments. We are of the opinion that the whole of this theory is unsound. In the first place, the tracts of land in the district did not constitute independent units of the district. The district is an entire entity, created as a governmental agency for the purpose of carrying out the supposed will of the owners of property. Fitzgerald v. Walker, 55 Ark. 148; Altheimer v. Board of Directors of Plum Bayou Levee District, 79 Ark. 229. It is true that each tract of land is separately taxed to pay for the improvement, the faxes being levied upon assessed benefits, but the whole of the area constitutes a single corporate entity for the purpose of constructing the improvements and raising revenues with which to pay for the same. The indebtedness incurred for that purpose is not a separate charge upon each tract of land, but is an indebtedness of the whole district, to be paid out of revenues raised by uniform levies of taxation on assessed benefits. The fact that the indebtedness in this instance consists of negotiable bonds, for the payment of which priority is given by a lien on the revenues of the district, is not material. The result would be the same if it were open indebtedness that was invplved, for any indebtedness -of the district, legally incurred, is a charge upon the revenues of the whole district and not upon the separate tracts of land.

The commissioners of the district are not in any sense or for any purpose the representatives of the bondholders; they represent the district in any foreclosure proceedings as well .as in all other transactions. The foreclosures are not made by or for the bondholders or other creditors, though done for their benefit and for the purpose of discharging the obligations of the district to them. Their lien or priority is upon the revenues of the district and not against the lands themselves. When the lands are bought in by the commissioners at the foreclosure sales, they become the property of the district, to be used for the purpose of raising revenues to pay the bonds. The lands do not belong to the bondholders, and the district is not entitled to take credit, as contended by counsel for appellees, to any extent until revenues are raised by the sale thereof. The lands thus purchased become the .absolute property of the district, and express authority is conferred by the statute to sell the lands at prices fixed by the commissioners. The theory is, and the-practice should be, in order to comply with the spirit of the scheme, for the commissioners in selling the land to secure a sufficient price at least to cover the expenses and all of the delinquent assessments up to the time of the resale, so that the lands will bear their full share of the burden of the expense of the improvement. Nor is there any dislocation or destruction -of the scheme of uniformity by reason of the purchase by the district of delinquent lands. By the purchase -of the lands at foreclosure sale, when the sales are confirmed, the district becomes the absolute owner of the lands, which renders, not only the estimated benefits, but the total value of the lands subject to sale to raise revenues. It would be a contradiction of terms to say that the foreclosed lands escape their just proportion of the burden by becoming the property of the district, when, as a matter of fact, by this change in the title the lands become wholly subject to these burdens.

The requirement of uniformity is fully met in the assessment of benefits and the methods of enforcing* the same, and the fact that some of the lands, by delinquency of the owners, may become the property of the district under foreclosure proceedings does not, as we have already seen, disturb the uniformity of the scheme. If it were otherwise, it would be impossible to comply with the requirement of uniformity, for foreclosure of the tax lien and purchase by the district in the absence of other purchasers is the only method whereby the burden of taxation can be successfully enforced.

The theory of counsel for appellees is unsound, though it finds support in other States where systems different from ours in constructing local improvements at the expense of property owners are in vogue. The theory has no place under our scheme, which provides, as we have already said, for the creation of a corporate entity for the purpose of constructing the improvement, and levying taxes to pay for the same.

Having reached this conclusion, it follows that the commissioners of the district were acting within their statutory authority when they adopted the resolution increasing the annual installments. Section 17 of the statute expressly authorizes it. The legality of that authority is upheld by the decision of this court in Griffin v. Little Red River Levee District, 157 Ark. 590. That decision related to assessments in levee and drainage districts formed under general statutes, but the authority conferred was the same. Of course, the annual installments of taxes cannot be raised so as in the aggregate to exceed the total benefits, but, as we have already seen, this increase does not reach the full limit of the benefits.

It is also contended by counsel for appellees that the decree enjoining the enforcement of the resolution increasing the installments should be sustained for the reason that no notice was given of the resolution and that none is required by the statute. The answer to this contention is that there is no constitutional requirement, either express or implied, that notice shall be given of the fixing, at any time, -of the amount of annual installments. All of the constitutional requirements are complied with in notice and an opportunity to be heard on the question -of the amount of the assessments of benefits, which is the basis of the annual installments. The law -itself imposes upon the real property in the district the total cost of the improvement, not exceeding the assessed benefits, and it was within the power of the Legislature to authorize the commissioners to change the annual •installments according to the necessities in raising revenue.

Appellees cross-appeal on the ground that the court denied them other relief prayed for in their complaint, namely, that there be an accounting and a master be appointed for that purpose. We think the allegations of the complaint were not sufficient to justify relief on that score. The statute requires the commissioners to make annual reports of receipts and expenditures, and that the same be filed in the office of the clerk. This affords oppor- ■ tunity for public examination, and there is no -allegation of fraud or suppression of accounts.

Our conclusion therefore is that the decree of the chancellor enjoining the commissioners from raising the annual installments was erroneous, so the decree is reversed, and the cause remanded with directions- to .dismiss the complaint of appellees for want of equity.


source: Caselaw Access Project

author: Wood J. Smith, J.,

license: Public Domain

text:
    Lipscomb v. Lenon.
    Opinion delivered October 26, 1925.
    1. Improvement districts — consent ok property owners. — It is within the power of the Legislature to create local improvement districts embracing therein both rural and urban territory without the consent of a majority in value of the owners of real property included in the district.
    2. Improvement districts — benefit to land. — Unless the land embraced in a local improvement district is peculiarly and especially benefited by the improvement contemplated, there is no justification for the creation of such a district.
    3. Municipal corporations — improvement district — construction .of auditoriums. — Act No. 13 of the Extraordinary Session of Legislature of 1923, approved October 10, 1923, authorizing the formation of improvement districts for the building of auditoriums, is unconstitutional .as authorizing the imposition of the burden of assessments upon lands which would not be benefited thereby.
    Appeal from Pulaski Chancery Court; John E. Martineaw, Chancellor;
    reversed.

      J. G. Marshall, for appellant.

      Chis Fulk and Thos. 8. Busbee, for appellee.
   Wood J.

The only question presented by this appeal is whether or not act No. 13 of the Acts of the 'Special Assembly of 1923, approved October 10, 1923, is unconstitutional. The act is entitled “An act to .authorize the formation of improvement districts for the building of auditoriums for public meetings.” Section 1 provides in effect that a place of public assembly is a 'matter of public necessity where there are as many as fifty thousand inhabitants in any congressional township, in this State or in any two or three such contiguous townships or contiguous parts thereof, and that the construction of a suitable auditorium is a local improvement beneficial to the real property therein.

Section 2 provides that where the population of such congressional townships is not less than fifty thousand inhabitants, they may form an improvement district 'for the purpose of building auditoriums for public meetings when a majority of the inhabitants of such districts approve such formation at an election, to'be called by the county court in which such districts are situated.

Sections 3 and 4 provide for the necessary steps to be taken for the election, and for the establishment of the district by judgment of the county'¡court entered upon its records if it finds that a majority of those voting at the election are in favor of the establishment of the district.

Sections 5 and 6 provide for the appointment of a board of commissioners after the establishment of the district and prescribe their powers and duties. The district is constituted a body politic and corporate. with power to sue and be sued. The commissioners are to prepare plans for the auditorium and to enter into contracts for the erection thereof, and to acquire suitable location therefor, all of which is to be submitted to the county court, and, when approved by it, the commissioners are to proceed to assess the benefits to accrue to the real property in the district.

Subsequent sections provide for the assessment of benefits, the issuing ¡of bonds, and contain all necessary provisions for the building and maintenance of the audi - torium contemplated by the creation of the district. Section 29 is as follows: “Provided this act shall include all cities ¡and towns of the first class.”

The act is lengthy, and. it is unnecessary to set forth its various provisions. It will be observed from the above that it provides for the establishment of local improvement districts by judgment of the county court in either rural or urban territory, or both, when there are as many as fifty thousand inhabitants in any congressional township, or in two or three such contiguous townships, or contiguous parts thereof , for the purpose of building auditoriums for public meetings; provided a majority of the inhabitants of such territory vote in favor of the creation of such districts. The county court of Pulaski County, on the 17th of February, 1925, entered a judgment creating an improvement district known as “The Little Bock Community Auditorium District,” after finding that all the provisions of the act authorizing its establishment had been complied with. The court then appointed the commissioners of the district to make the-improvement contemplated by the act, and these commissioners were proceeding, and will proceed, unless restrained, to build the auditorium contemplated by the act.

E. J. Lipscomb, a resident citizen and owner of real estate in the district, instituted this action for the benefit of himself and all other tax payers similarly situated against the persons named as commissioners of the district, and the district, to restrain them from proceeding under the terms of the act to build the auditorium. He challenges the constitutionality of the act and the validity of the district on numerous grounds, only one of which we find necessary to consider, namely: “the proposed auditorium is not such a local improvement as may be built and maintained by local assessments on real estate. ’ ’

The petition of land owners for the creation of the district contains a description of the lands to be included therein, and the order of the county court establishing the district includes therein the territory described in the petition. (See note)

Note. All that part of township two (2) north, range twelve (12) west, lying on the south side of the Arkansas River.

All that part -of sections one (1), two (2), and three (3), lying on the south side -of the Arkansas River, and all of sections four (4), five (5), six (6), seven (7), eight (8), nine (9), ten (10), eleven (11), twelve (12), thirteen (13), fourteen (14), fifteen (15), sixteen (16), seventeen (17), eighteen (18), nineteen (19), twenty (20), twenty-one (21), twenty-two (22), twenty-three (23), -and twenty-four (24), township one (1) north, range twelve (12) west.

Sections one (l),two (3), three (3), four (4), nine (9), ten (-10), eleven (11), twelve (12), thirteen (13) fourteen (14), fifteen (15), sixteen (16), twenty-one (21), twenty-two (22), twenty-three (23), and twenty-four (24) of township one (1) north, range thirteen (13) west.

It will be seen that tbe district embraces lands situated in townships one and two of Pulaski County. By reference to the description it will be noted that there is a large area of rural land, 'and the greater portion of the city of Little Rock included in the district, but the district does not embrace a considerable portion of Little Rock, and a large part of the rural territory embraced in the district is unoccupied, being covered by Fourche Bottoms and mountains adjacent to the city, and other uninhabited territory.

We have often ruled that it is in the power of the Legislature to create local improvement districts embracing therein both rural and urban territory without the consent of a majority in value of the owners of the real property included in the district. Shibley v. Fort Smith & Van Buren Dist., 96 Ark. 410-417; Butler v. Com. Fourche Dr. Dist., 99 Ark. 100, 103; see also Cox v. Imp. District No. 8 of Lonoke County, 119 Ark. 126. But, unless the land embraced in a local improvement district is peculiarly and especially benefited by the improvement ■contemplated, there is no justification under our Constitution and laws for the creation of such districts, whether the lands constituting the district be entirely rural or urban territory, or both. No better definition has ever been given of a local improvement than that by Judge Riddick, speaking for the court in Crane v. Siloam Springs, 67 Ark. 30, at page 37, where he said: “If we look for the technical or legal meaning of the phrase ‘local improvement,’ we find it to be a public improvement, which, although it may incidentally benefit the public at large, is made primarily for the accommodation and convenience of the inhabitants of a particular locality, and which is of such .a nature as to confer a special benefit upon the real property adjoining or near the locality of the improvement.”

In the recent case of Williams v. Arkansas County Court House Improvement District, 153 Ark. 469, we had under review an act of the Legislature creating an improvement district embracing .all the lands in Arkansas County for the purpose of building a court house in the city of Stuttgart. At page 472, we said: “'Counsel for the commissioners of the district rely upon our cases holding that local improvement districts may be organized for the purpose of improving roads and building bridges and wharves. ( Citing cases). We do not think these cases are any authority for the organization of such a local improvement district as the one in question. The question of what shall be considered a local improvement is determined by the nature and character of the improvement itself. Of course, every local improvement must be for a public and not for a mere private purpose. Moreover, local assessments are a species of taxation, and there must be some special or peculiar benefit to the property upon which the assessment of benefits is made. We have held that roads, bridges and wharves may be the subjects of local improvements, because the adjoining property will be especially and peculiarly benefited, and that the benefit to the public is merely incidental. That the improvement will benefit adjoining property more than that at a distance is not conclusive as to the nature of the improvement. The primary purpose and effect of a local improvement must be to benefit the adjoining property, although -it may incidentally benefit the public. * * * In the case of building roads, bridges and wharves, .the primary object to be accomplished is the benefit of the adjoining property, and the benefit to the public is merely incidental.”

While the act under review does not specify that the auditorium contemplated must be erected in the city of Little Rock, yet it is obvious that such is the manifest purpose in the creation of the district, as indicated by the name of the district in the order of the county court establishing the same. An auditorium located elsewhere in the district would be wholly useless and unavailing to the great majority of the owners of real property in the district and to the public whom the district proposes to serve, Now the purpose of building an auditorium in the city of Little Lock could be none other than to provide an assembly room or community meeting-house where, as occasions may require, large masses of the inhabitants of the city and possibly inhabitants of territory not embraced in the district, but contiguous thereto, may congregate. iSueh a building is manifestly not needed for the assembly of the people of the district or their representatives in the transaction of any of the ordinary business and social affairs pertaining to the community life. There are numerous auditoriums in the city adapted and devoted to these uses, such as churches, theatres, school houses, court houses, the city hall, etc. These afford ample space for any of the ordinary civic assemblies in pursuit of business or pleasure.

So, the building of an auditorium could only be for the puppose of accommodating greater congregations than could assemble in any of the above structures; and such assemblies, at most, would only be rare and occasional, such as the coming of a great national political convention, or other conventions of various kinds, when the housing of larger crowds demands a more capacious assembly room than any of the public buildings now in the city affords. On such occasions a suitable auditorium would indeed be a most desirable improvement, and one that every progressive city should have for the convenience, comfort and pleasure of the inhabitants of the city and its environs. But, plainly, such an auditorium is for the benefit of the whole community who may be served by it individually and collectively, and it cannot and does not confer any peculiar or special benefit upon the real estate assessed and taxed for its construction and maintenance. If it could be said that such an improvement is essential to the progress and prosperity of the city and suburban communities, the contribution which an auditorium makes to such prosperity is general to the entire community and not peculiar and special to the real property in the city and outlying contiguous territory. Whether the building of an auditorium would be beneficial rather than harmful to the real property immediately contiguous thereto would be wholly problematical and dependent upon many contingencies, notably the character of the architecture and construction and the nature of the assemblies gathered there, etc. Certain it is there is no such similarity between an improvement district for the construction of an auditorium and improvement districts for the construction of roads, bridges, wharves, levees, drains, etc., as would bring the former in the category of the latter. In the former the benefit, at’most, to the real property can only be incidental and of the most remote and general character, while in the latter, it must be, and is, a peculiar and special benefit to the real property taxed for its construction.

Counsel for the appellees contend that there is no real distinction in principle between the case at bar and the cases of Matthews v. Kimball, 70 Ark. 451, and Solomon v. Wharf Imp. Dist. No. 1, 145 Ark. 126. But it occurs to us that the difference in the cases is very pronounced. In the case of Matthews v. Kimball, supra, an improvement district was formed designated “The City Park District” embracing the whole of the territory" comprised in the city of Little Rock for the purpose of “acquiring, improving and maintaining a city park.” The real estate assessed for the improvement was wholly within the city limits. That of itself is a marked distinction between that case and this. Then, too, a city piark is a wholly different character of improvement from a city auditorium. A city park, properly kept and maintained, adds decidedly to the attractiveness, and hence, enhances the value, of the real property immediately contiguous thereto, and to the beauty of the whole city, considered as a corporate entity. It is easy to see that all of the property within the corporate limits may be considered property adjoining the locality to be affected when so found by the Legislature or the city council; whereas real property beyond the city limits and more sparsely settled, much of which is wide open, spaces entirely wild and inaccessible, is demonstrably property not adjoining* the locality to be affected, and cannot be commercially affected by the building* of an auditorium upon some small plot of g’round in a city.

It occurs to us also, thoug’h the distinction is not so clear, that a city park enhances commercially all the territory within the corporate limits of the city because it affords a place of recreation for the health, comfort and pleasure of every inhabitant of the city at all times with • out money and without price; that, not only from an aesthetic, but also from a practical and financial, viewpoint, it makes the city as a whole a more beautiful, attractive and desirable place to live. Any improvement of that character necessarily enhances the value and thereby benefits all the real property within the city. The same cannot be said of an auditorium. Many of the assemblies that may be gathered there are necessarily exclusive in their nature in that the public would have to pay to attend them, and those who are unable to pay would be shut out from the entertainment there afforded the more fortunate and prosperous. In this connection it should be stated that the opinion in the case of Matthews v. Kimball, supra, was by a divided court, Justice Battle and Bid-dick dissenting. ¡"While the doctrine of that case has never been impaired, and we still adhere to it as the sound doctrine, yet we recognize the fact that it approaches the very verge of constitutional sanction in holding that the entire real estate within the city limits may be included within an improvement district for the purchase and maintenance of a city park. Certainly, the doctrine there announced should not be so extended by interpretation as to confer authority upon the Legislature to itself create, or delegate to other agencies the power to create improvement districts, such as we now have under review, to be paid for solely by the owners of real property in such districts.

The other ease of Solomon v. Imp. Dist. supra, upon which appellees rely, involved the validity of an ordinance creating an improvement district in the city of Helena for the purpose of constructing a wharf on the Mississippi River and the necessary approaches thereto. In that case, to justify the action of the council, it was shown that the barges operated by the Government were so constructed that no landing could be made along the Mississippi River for the purpose of loading and unloading freight unless such landing was equipped with the necessary facilities for loading and unloading from said barges to wharves; and the barges did not stop at the city of Helena for the reason that the city did not possess adequate terminal facilities. It was shown that the improvement would greatly increase local trade, and would make the city of Helena a distributing point for large volumes of freight going by river and rail, and that the improvement contemplated Would result in a 20 per cent, reduction in freight rates, and would bring a large increase in population to the city, and a direct increase in value to the residence lots of the city as well as to the business districts.

The facts of that ease argue themselves and show that the real property included in the district was peculiarly and especially benefited by the improvement. The city was “bottled up,” and, in la sense, stagnation in a business way confronted it, which affected materially the value of real property in the city.

But in the case at bar, even if it could be said with any plausibility that the building of an auditorium directly and specially benefited the real estate situated within the city of Little Rock, it would strain the wildest imagination to the breaking point to conceive how such an improvement would be of any direct and special benefit to the real estate situated on Fourche Mountain, or in Fourche Bottoms, or to any other real property lying in those country portions of the townships included in the district — those beyond the limits of the city of Little Rock. The act, on its face, carries its own death wound, and shows a demonstrable mistake on the part of the law-making body in its enactment.

The court erred in sustaining the demurrer to the appellant’s complaint and in dismissing the same. The decree is therefore reversed, and the cause remanded with directions to overrule the demurrer and for further proceedingis according to law and not inconsistent with this opinion.

Smith, J.,

(dissenting). The act which has fallen under the opinion of the majority does not require the building of an auditorium. It merely declares that an auditorium may ibe the subject of a local improvement, to 'be paid for by special assessments. The authority to build is made contingent upon the vote of the people of the city and the subsequent approval of the plans for the auditorium by the county court. The act does include both urban and rural territory; but this is unimportant under the majority opinion, for the reason that an auditorium cannot be the subject of an improvement district in either urban or rural territory, or both. The majority have judicially determined that an auditorium cannot confer such special benefit on real estate, either urban or rural, or both, as to justify the imposition of special taxes for its construction.

In my opinion, the court should not have so declared as a matter of law, but should have respected the legislative finding to the contrary. The Legislature may know some things of which we are ignorant, at least in our capacity as judges. At any rate, the General Assembly must first act, must provide the necessary legislation, before improvement districts of any kind may be organized for any purpose. The Legislature has a solemn and original duty in the premises; and when it has exercised the function with which the Constitution clothes it, its finding should’ be respected by the courts, unless it so clearly appears as to leave no room for doubt that it has exceeded its constitutional authority.

Legislative action may be reviewed by the courts, not to decide the wisdom or expediency thereof, but solely to ascertain whether the power to act has been denied the Legislature by the Constitution. These elementary statements of the law require no citation of authority to sustain them.

Here the Legislature has said that an auditorium might, in certain cases, where the electors have assented thereto, be the subject of a local improvement. The court has refused to respect this finding, and by a process of reasoning has reached and announced the conclusion that this finding is false. This has 'been done, notwithstanding the universal rule for the government of the courts in the construction of such legislation is to respect the legislative finding unless that finding was arbitrarily and demonstrably erroneous. This court has many times applied that rule in upholding legislation.

At section 14 of the chapter on Special or Local Assessments in 25 R. C. L., page 99, it is said: “The question of the necessity and reasonableness of a local improvement is for the determination of the Legislature, not the courts, and the legislative determination of the character of an improvement as a local one is conclusive unless arbitrary and unfounded in reason.”

The majority say that the churches, theaters, schoolhouses, courthouse, and city hall of the city afford ample space for any of the ordinary civic assemblies in pursuit of business or pleasure. I submit that the legislative finding to the contrary is not arbitrary or unfounded in reason.

The majority also say that an auditorium might be so managed that only the fortunate and prosperous portions of the community might avail themselves of its facilities. Shall we assume — and upon this assumption find — that the very purpose of the Legislature will be defeated by the adoption of such a policy on the part of the legal custodians of the building? Would it not be more consonant with the prerogatives of the court to assume that such a diversion from the contemplated purpose would not be attempted, but, if it were so, that the courts would enforce the rig-hts of the public.

No such apprehension deterred the court in the ease of Matthews v. Kimball, 70 Ark. 451, from upholding the ordinance of the city of Little Bock providing for the acquisition of a public park.

But it is said the opinion in that case was rendered by a divided court. So it was, but is the authority of the case lessened on that account? All the arguments here advanced against the right of the city to acquire an auditorium were there advanced against the right of the city to acquire a public park. In that case the opinion of the special chancellor, upholding the district, was adopted as the opinion of this court on the appeal. In that case the chancellor, among other things, said: “I think it would require strong evidence to show that a park like this one was not beneficial to the whole property in the city, and surely no court can say, as a matter of law, that the public park is not or will not be beneficial to the city. ’ ’ The opinion then quoted from the opinion of the Supreme Court of the United States in the case of Wilson v. Lambert, 166 U. S. 611, as follows: “ ‘Whatever tends to increase the attractiveness of the city of Washington as a place of permanent or temporary residence will operate to enhance the value of the private property situated therein and adjacent thereto.’ ”

In view of this statement by the highest court of the land, and the finding of the Legislature of this State that an auditorium may, in a certain case, become a local improvement, to be paid for by special assessments, shall we say that finding is arbitrary and demonstrably erroneous? The world moves. AVe are progressing. The luxury of yesterday is regarded as a necessity today. The schools and 'churches and building’s of that character may not afford such facilities for public assemblages as may now be required. Auditoriums have, as a matter of common knowledge, been erected in many of the more progressive communities, and have been paid for out of the public revenues, upon the theory that the cities possessing them are made more attractive as places of residence. If this be true, shall we say, as a matter of law, that there can in fact be no such enhancement of property values from the erection of an auditorium as to .justify the imposition of -special assessments to meet the construction cost?

In my opinion, there is at least enough doubt about the facts to allow the legislative finding to stand as not being arbitrary and demonstrably erroneous, and I therefore respectfully dissent from the conclusion of the majority.


author: Hart, J.,

text:
    Harnwell v. Arkansas Rice Growers’ Co-Operative Association.
    Opinion delivered October 26, 1925.
    1. Landlord and share-cropper — title to- crop. — If the contract between a landlord and one ibaking a crop on his place shows that the parties intend to become tenants in common, the title to the crop raised vests as any other chattels held in common, and either one of the common owners may maintain his action against one Who converted the property to his use for the value of his interest.
    2. Pleading — -presumption.—Under the Code, every reasonable intendment is presumed in favor of a pleading, and if the facts stated in a complaint, together with every reasonable inference therefrom, constitute a cause of action, a demurrer should be overruled.
    3. Tenancy in common — conversion op chattel. — Where one tenant in common of a chattel sells it without the consent of the other, he and the purchasers who -have converted the property to their own use are wrongdoers, and may be sued, jointly or severally, for the conversion of the property by the -act of sale and retention -of the proceeds to the exclusion of the rights of the cotenant who did not authorize the sale.
    Appeal from Arkansas Circuit Court, Northern District ; George W. Clarity Judge;
    reversed.
    STATEMENT BY THE COURT.
    Louisa B. Harnwell instituted this action in the circuit court against the Arkansas Rice Growers ’ Co-operative Association and the Lonoke County Bank upon a complaint as follows:
    “Comes now the plaintiff and for her cause of action against the defendant says: That during the years 1921 and 1922 she was the owner of the north half of section 36 in township 1 north, range 8 west, Lonoke County, Arkansas. That on the said land, during the year 1922, a rice crop was grown under and by virtue of an arrangement, between this plaintiff and one L. J. Palls, by the terms of which arrangement the title to the said crop was to be one-half in this plaintiff and one-half ini the said L. J. Palls. That the said rice crop so grown as aforesaid was, by the said Palls, at the instance and in accordance with the directions of the defendant Lonoke County Bank, delivered to the defendant, the Arkansas Bice Growers’ Co-operative Association. That the said Arkansas Bice Growers’ Co-operative Association is a. corporation organized under the laws of Arkansas, and engaged in the marketing and selling of rice and rice products. That the defendant Lonoke County Bank is a banking corporation, also organized under the laws of Arkansas, and having its -office and principal place of business in the city of Lonoke, Arkansas. That both of the said defendants, ‘at all times herein mentioned, were aware of the arrangement existing between this plaintiff and the said L. J. Falls, arid that this plaintiff was the owner of a -one-half interest in the said rice crop. That the rice crop, so delivered as aforesaid, was sold by the said -defendants for the net sum of $10,600.50, one-half of which amount, or $5,300.25, Was the value of plaintiff’s interest therein, and which said sum should have been paid to her. That -the-said defendants converted the said sum to their own use, and have failed and refused to pay to this plaintiff any part thereof, though the same is now, and since the first day of March, 1923, has been justly due and owing to her.
    “That during the year 1921 (one MoGarrity grew a rice crop on a small portion of the above-described land under an arrangement the same as that heretofore outlined with the said L. J. Falls, one-half of which said crop amounted to the sum: of $’244.73. That this crop was by the said defendants converted to' their own use in like manner as the foregoing crop, and that ¡the said defendants are now, and since March 1, 1922, have been, indebted to this plaintiff in the said sum of $244.73, which amount they wrongfully refused to pay to her.
    “Wherefore plaintiff prays that she have judgment against the said defendants, and each of them, for the aforesaid sums of $5,300.25, with lawful interest thereon, from March 1, 1923, and for the said sum of $244.73 with lawful interest thereon from March 1,1922, together with all her costs herein expended, and all proper relief.”
    The defendants filed a demurrer to the complaint, which was by the court sustained. Thereupon the plaintiff declined to amend her complaint, but elected to stand upon it. It was adjudged by the court that the demurrer be sustained, and that the complaint of the plaintiff be dismissed. From this judgment the plaintiff has duly prosecuted an appeal to this court.

      George G. Lewis, for appellant.

      Charles A. Walls, for appellee.
   Hart, J.,

(after stating the facts.) The judgment of the circuit court was wrong. This court has held that if the contract between the landlord and a person making the crop on his place shows the intention of the parties to become tenants in common, then the title to the crop raised vests as any other chattels held in common, and either one of the common owners may maintain his action against one who has converted the property to his use for the value of his interest. Hammock v. Creekmore, 48 Ark. 264, and cases cited; and Barnhardt v. State, ante p. 567, and cases cited.

The 'contract relied upon by the plaintiff for a recovery is not set out or exhibited with the complaint; but the complaint contains a specific allegation that the plaintiff was the owner of a certain described tract of land in Lonoke County, Arkansas, and that during the year 1922, a rice crop was grown on said land under an agreement between the plaintiff and one L. J. Falls, by the terms of which arrangement the title to the crop was to ¡be one-half in the plaintiff and one-half in said L. J. Falls. The complaint contains the further allegation that the defendants were aware of the agreement between the plaintiff and Falls, and that the plaintiff was the owner of a one-half interest in said rice crop.

It is further .alleged that the rice crop was delivered by Falls to the defendants; that the defendants sold it and refused to pay the plaintiff her share of the proceeds and converted the same to their'own use. A demurrer was sustained to these allegations.

Under our Code, every reasonable intendment and presumption is to be made in favor of a pleading, and, if the facts stated in a complaint, together with every reasonable inference therefrom, constitute a cause of action, then a demurrer to it should be overruled. Cox v. Smith, 93 Ark. 371; Moore v. North College Avenue Improvement Dist. No. 1, 161 Ark. 323, and Sharp v. Drainage Dist. No. 7, 164 Ark. 306.

Therefore, the allegations in, the complaint that the contract was that the title to the rice crop was to be one-half in the plaintiff and one-half in Falls constituted them tenants in common of the rice crop. Hence, under the law above announced, if one tenant in common of a chattel sells it, it is an ouster and conversion, and his co-tenant may hold the wrongdoer responsible in damages to the full extent of the value of his interest in the chattel of which he has been deprived.

As we have already seen, the complaint contains an allegation that Falls delivered the rice crop to the defendants, and that it was sold by them and the proceeds converted to their own use, with the knowledge of the rights of the plaintiff.

Of course, courts of equity have jurisdiction of matters of account between owners in common of personal ■nroperty; and when such a case is presented wherein is involved a variety of adjustments, complicated accounts, or other complications, equity upon proper application will take charge of the case and effect distributive justice among the interested parties.

Under the allegations of the complaint, however, the necessity for entertaining equity jurisdiction of the case at bar does not exist, and the court could not treat the demurrer as a motion to transfer to equity.

It is true, as contended Iby counsel for the defendants, that the time for asserting a landlord’s lien had expired, and the plaintiff was barred by limitation from asserting any lien as landlord to the rice crop. As we have already seen, however, under the allegations of the complaint, the plaintiff and Falls were tenants in common of the rice crop and had the same rights as other tenants in common. While tenants in common of a chattel have each an equal right to the possession, and the law will not afford an action to the one dispossessed because his right is not superior to that of the possessor, still the one holding possession of the chattel cannot dispose of it without violating’ the rights of his co-tenant.

Therefore, where one tenant in common of a chattel sells it without the consent of the other, he and the purchasers have converted the property to their own use and are wrongdoers, and may be sued jointly or severally for conversion of the property by the act of sale and retention of the proceeds to the exclusion of the rights of the tenant in common who did not authorize the sale.

The result of our views is that the circuit court erred in sustaining the demurrer to the complaint, and for that error the judgment must be reversed, and the cause will be remanded with directions to overrule the demurrer, and for further proceedings according to law and not incopsistent with this opinion.


author: Hart, J.

text:
    Harris v. State.
    Opinion delivered October 26, 1925.
    1. Statutes — construction.—Statutes should be construed with reference to the public policy they are designed to accomplish.
    2. Criminal law — special term op court. — .Crawford & Moses’ Digest, §§ 2211-2214, .providing for the calling of a special term of the circuit court in order to protect persons accused of certain crimes, and directing that their trial be had within ten days, is directory as to the time of trial, which may be had on a later date.
    3. Criminal law — special term of court. — Where a special term for the trial of persons in jail is ordered under Crawford & Moses’ Digest, .§■, 2218, the provision in § 2212, Id., with reference to beginning the trial within ten days, has no application.
    4. Continuance — absent witness. — It was not error to refuse to continue a case on account of the absence of a material witness for the town where no request was made to postpone the trial to a later date in the term and no showing was made that the attendance of the witness could be secured at another term of the court.
    5. Homicide^-sufficienCy of evidence. — Evidence held to sustain a conviction of murder in the first degree.
    Appeal from Asbley 'Circuit Court; Turner Butler, Judge-;
    affirmed.

      Vernon Bankston, for appellant.

      H. W. Applegate, Attorney G-eneral, and John L. Garter, Assistant, for appellee.
   Hart, J.

Aaron Harris was indicted for murder in the first degree, charged to have been committed by killing Scott Streeter. He was tried before a jury, which returned a verdict of guilty of murder in the first degree, and, from a judgment upon the verdict sentencing him to death, the defendant has duly prosecuted an appeal to this court.

The first assignment of error is that the call for the special term of court at which the defendant was indicted and tried was not-made according to law. The order convening the special term -of the court is as follows:

“Whereas, the sheriff of Ashley'County has notified the judge of the circuit court that there is reasonable ground for believing that mob violence will be committed within the State of Arkansas, and has requested the said judge to call a special term of court in order that the above-named persons be brought to immediate trial, and such other persons who may be in the county jail and unable to make bond.
“And therefore it is ordered that a special term of the circuit court in and for Ashley County, Arkansas, shall be convened and held on the 14th day of April, 1925, and it is .further ordered that the clerk of said court issue a special venire for a grand jury to appear at nine o ’clock on the forenoon of said day to investigate the case of the State of Arkansas against the said Aaron Harris and Dick Davenport and others confined in jail, and it is ordered that such other and further proceedings be had at said special court ¡a® may be necessary for the immediate trial of the aforesaid persons. It is further ordered that the clerk issue a notice to the prosecuting attorney of the Tenth Judicial 'Circuit of the time and purpose of said special court.
“Witness my hand as judge of the Tenth Judicial Circuit this 31st day of March, 1925.
“Turner Butler, Circuit Judge.”

The transcript also shows that this order was spread upon the record of the circuit court, and that the prosecuting attorney was given due notice of the holding of the special term for the purpose of trying Aaron Harris, Dick Davenport, and such other persons as might be confined in the jail of Ashley County charged with crime.

The first objection to the call is that it is dated March 31, 1925, and that -the special term was called for the 14th day of April, 1925.

Under our statute providing for special terms to prevent mob violence in certain cases, it is the duty of the circuit judg*e, upon receipt of notice and request from the sheriff for a special term as provided by the statute, to call a special term of tlie court and begin the trial of the person charged with crime as designated in the statute within ten days from the receipt by such judge of such notice from the sheriff. Crawford & Moses’ Digest, §§ 2211-2214. Hence it is insisted that the judgment of conviction in the present case must be reversed because the special term of court was not held within the ten days prescribed by the statute.

In the first place, the statute must be construed with reference to the public policy which it was designed to accomplish. The framers of the statute evidently passed it for the protection of persons accused of certain crimes and intended that the trial of such persons should be begun within ten days to protect them from mob violence. Bettis v. State, 164 Ark. 17.

While the- precise question was not decided in that case, it is evident from the reading of the opinion that it proceeded upon the theory that the act was directory or precautionary. If the act is directory, holding* the special term of the court more than ten days after the call was made by the circuit judge would be at most irregular, and would not constitute prejudicial error calling for a reversal of the judgment. The presumption would be in its favor, and this presumption must be indulged in until the contrary appears.

There is nothing whatever in the present record to show that the defendant was prejudiced by the special term being held more than ten days after the call. It is argued that an absent witness might have been secured if the trial had been held within the ten days; but there is nothing whatever in the record to show that the attendance of this witness could have been procured as will more certainly appear in the discussion of the alleged error for refusing to grant the defendant a continuance.

Moreover, the record shows that the call was made by the court under § 2218 of the statute, which provides that a circuit judge may at any time hold a special term for the trial of persons confined in jail by making a written order to that effect and transmitting it to the clerk, ■who shall enter the 'same on the records of the court. The transcript shows that the call was made, entered of record, and .notice given to the prosecuting attorney, and that all the other steps required by statute were made in conformity therewith and in accordance with the rule laid- down by this court. Beard v. State, 79 Ark. 293; Hill v. State, 100 Ark. 373; Reece v. State, 118 Ark. 310; and Bell v. State, 120 Ark. 530. Hence we hold that this assignment of error is not well taken.

In the next place, it is insisted that the judgment should be reversed because the court erred in refusing to grant the defendant’s motion for a continuance. It appears from the record that the defendant killed Scott Streeter on Saturday night, March 28, 1925, and that he was captured on the following Monday morning and confined in jail until a special term of the court was called to try him on the 14th day of April, 1925. In his motion for a continuance, the defendant states that Dan Dupree was standing within ten or fifteen steps of Scott Streeter at the time he was shot by Aaron Harris, and, if present, he would testify that he saw the deceased draw his gun and tell Aaron Harris to stick up' his hands; that he ■snapped his gun at Harris two or three times, and that Harris then drew his gun and shot two or three times, and that the deceased fell beside a fence post.

The sheriff and two of his deputies were examined by the court as to the whereabouts of Dan Dupree, the absent witness. According to the testimony of the sheriff, he had a subpoena for Dan Dupree before the grand jury about ten dajn before, and had made all efforts to locate him, and am'ong other things had telephoned down to the' farm where Dupree lived and tried to locate him. There was a liquor charge and pistol charge against the witness, and the sheriff had arrested him on these charges. The owner of the farm on which Dupree lived agreed to be personally responsible for his appearance before a justice of the peace, and the sheriff released him. He went down, to where Dupree lived on the 12th of April, 1925, and found that he had left there. According to the testimony of a deputy sheriff, Dupree left on Sunday night, one week after the shooting for which Aaron Harris was charged. The deputy was informed that Dupree went to Louisiana.

Another deputy sheriff testified that Dupree had left the State, and other people in the community said that he had left ¡because there was a whiskey charge against him. The house in which Dupree lived was vacated, and his wife had gone to her relatives.

The defendant made no attempt to show that he could secure the attendance of Dupree at another term of the court, and did not ask that the trial he postponed to a later day of the special term in order to take his deposition. Under these circumstances, it can not he said that the circuit court abused its discretion in refusing to grant the defendant’s motion for a continuance. Bruder v. State, 110 Ark. 402; Miller v. State, 94 Ark. 538; Wood v. State, 159 Ark. 671; Burt v. State, 160 Ark. 201; and Scott v. State, ante p. 326.

In this connection it may he stated that the evidence shows that Dupree left about a week after Harris shot Streeter, and that he left because there was a whiskey charge -against him. Under these circumistances the circuit court was right in finding that he would not likely return, and that the defendant could not have procured his attendance at the trial, even if it had been held within the ten days from the time that defendant shot the deceased.

It is also' earnestly insisted that the testimony is not legally sufficient to sustain a verdict for murder in the first degree.

Burl Odell, a sixteen-year-old hoy, was one of the first persons to arrive where Scott Streeter fell. According to his testimony, he found Scott Streeter lying on his left side with his face to a fence. He had his left hand on his stomach, and his right hand over his left hand. A physician was summoned and' found that Streeter was shot in the stomach. He gave him at different times two hypodermics of morphine-and carried him to a hospital at Lake Village to be operated on. In performing the operation, it was found that his intestines were cut in three places. Streeter was shot Saturday afternoon, March 28, 1925, and died at 12:30 o’clock on the next morning.

According to the testimony of R. C. Avery, he saw three shots fired by a man standing under a light, and he took the man doing the shooting to be a negro. When the last shot was fired, the man who did the shooting broke and ran, and the witness did not see Mm any more. There was no flash light turned on the man doing the shooting. He was standing* something like eight or ten feet from an electric light, and there was no other light, except the flash of his pistol. When the firing ceased, the witness went to where the man who had been shot was lying, and found that he was Scott Streeter. The man who did the shooting was about fifteen feet from the man who was shot.

Other witnesses for the State testified that when they picked up Scott Streeter, they saw a gun, a flash light, and a cap and handcuffs on the ground. They looked as if they had just fallen out of Streeter’s coat pocket. They were lying close to his body under the arm of his coat like they had dropped out of his coat pocket. The flash light was not burning when it was picked up. They examined the pistol, looked in it and found that it was unloaded.

The defendant is a negro, and other witnesses, both white and black, say that the defendant told them that he had shot Mr. Streeter because he was “around seeking for whiskey.” It was shown that Streeter was a deputy sheriff, and had been especially deputized by a justice of the peace to look after persons violating the liquor laws. It was also proved that the defendant knew Streeter, and knew that he had acted as a deputy sheriff sometime before this. The sheriff testified that, after he was arrested, the defendant told him that he knew Mr. 'Streeter, and knew that he was an officer at the time he shot him.

According to the testimony of the defendant and two other persons, Streeter had a flash light and pistol in his hands at the time he was shot. He threw the flash light upon the defendant and told him to put up his hands. The defendant whirled, and Streeter snapped his pistol at him two times. The defendant then got his gun out of his pocket 'and shot at Streeter three times and ran. He testified that he did not know who Streeter was at the time he shot him.

According to the testimony of the witnesses for the State, the defendant had a bottle of whiskey at the time he shot Streeter. He knew that Streeter was an officer, and he shot at him three times. Streeter did not shoot at the defendant at all, and his pistol w'as examined by persons who went to where he fell immediately after the shooting. They say that the pistol was unloaded, and that the flash light was not on. Other witnesses for the •State testified that Streeter did not turn the flash light on the defendant; but that the defendant fired three shots at him, land that Streeter did not attempt to shoot at the defendant at all.

This testimony is corroborated by the fact that the pistol was unloaded, and that the flash light was not .turned on when ‘Streeter fell mortally wounded by the shot in his stomach. His hands were both on the wound, and the jury might have inferred from this that as soon as he was shot the deceased sank to the ground and placed his hands upon his wound.

The evidence for the State, if believed by the jury, warranted it in finding that there was a specific intent in the mind of Harris to kill Streeter at the time he shot him, and that the intent preceded the shooting, and must have been formed after deliberation and premeditation.

Under these circumstances the jury was warranted in finding that there was a wilful, malicious, deliberate, and premeditated killing, and that the defendant was guilty of murder in the first degree. Coats v. State, 101 Ark. 51; Cegars v. State, 150 Ark. 648; Webb v. State, 154 Ark. 67; Outler v. State, 154 Ark. 598; Burns v. State, 155 Ark. 1; Beason v. State, 166 Ark. 142.

Another assignment of error is that the judgment should be reversed because the record does not show that the trial jury was- sworn as required by /statute. On this point there appears in the record a nunc pro tunc order which shows that the jury was duly impaneled and sworn to try the case of the State of Arkansas against Aaron Harris. But it is contended that the judge was not warranted in entering of record this nunc pro tunc order. We cannot agree with counsel for the defendant in this contention. On this point, the circuit clerk of Ashley County testified that he was the clerk of the oourt at the time Aaron Harris was tried, and that the oourt docket shows the following: ‘ Jury impaneled 'and sworn; cas e heard; verdict of guilty of murder in the first degree, 4-16-25. ” That the above is in the handwriting of Judge Turner Butler, who was the presiding judge of the case of the State of Arkansas against Aaron Harris. The clerk testified further that he administered the oath to the jury, which tried the defendant.

The /court reporter also testified that his notes show that the jury was sworn before the trial began, and that he made the notation at the time. The witness further testified that he always looked at his watch when the jury was sworn, and made a particular notation of the time when the jury is sworn, and that there could be no mistake at all about his testimony.

The same judge who tried the case made the mme pro tunc order, and it can not be said that he was not fully justified in making it.

Another ground relied upon for a reversal of the judgment is that the court first made an order calling for a special term for the trial of Aaron Harris alone and subsequently entered of record a new call which we have copied in this opinion. The language of the two orders are precisely the same, except that the one copied in the transcript contains the names of Hick Davenport as well as Aaron Harris. The record shows that both calls were made upon the same day, and that the first call was canceled and the second one made and spread upon the record because the circuit judge by mistake had not included Dick Davenport in the first call for the special term. They were both made on the, same day, and, so far as the defendant is concerned, it would not make any difference which one was held to be valid. If it should be held that the first call was the valid one, it was spread upon the record and contained all the essential requirements that were contained in the second call. If it should be said that the second call is valid, then, as above stated, it contains all of the essential requisites of the statute.

Moreover, it may be said that the law does not consider parts of a day, and that the circuit .judge had a perfect right to amend his call on the sarnie day and to include Dick Davenport in the call.

"We have carefully examined the record, and find that the defendant was given a fair trial. His rights were carefully guarded by the court, and the instructions fully and fairly covered the respective theories of the State and of the defendant.

We find no reversible error in the record, and the judgment must be affirmed.


author: Smith, J.

text:
    Herren v. State (two cases).
    Opinion delivered October 26, 1925.
    1. Criminal law — identification of accused — sufficiency of evidences. — In a prosecution for selling intoxicating liquor, evi- • dence held sufficient to identify the accused as the person who sold liquor.
    2. Witnesses — impeachment.—-Where a witness for the State in a prosecution for selling intoxicating liquor equivocated in her cross-examination, rendering doubtful her identification of the accused as the man who made the sale, it was not error to permit the State to question her as to a previous contradictory statement made by her.
    3. . Intoxicating liquors — admissibility of evidence. — Testimony as to finding a quantity of liquor in -accused’s house was competent, in a prosecution for selling liquor, as tending to show that he was engaged in the business of selling liquor.
    4. Witnesses — impeachment of accused. — Where the accused takes the stand in his own behalf, he is subject to impeachment in the same manner as any other witness.
    Appeal ‘from 'Sebastian Circuit Court, Fort Smith District; John E. Tatum, Judge;
    reversed in one case; affirmed in the other.

      E. D. Chastain and L. E. Lister, for appellant.

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

Appellant was twice indicted in 1922, for selling intoxicating liquors, the indictment in the first case being numbered 8698, and in the second case 8699, and on June 30, 1925, was, with his consent, tried upon both indictments at the same time, and was convicted in each case and given a sentence of one year in each, the second sentence to begin -at the expiration of the first.

. Appellant filed a petition for a change of venue, which was overruled by the court, and this action is assigned as error. This assignment of error may be disposed of by saying that the affiants supporting the petition were examined in open court, and their examination touching the state of the public mind in regard to appellant was such as to warrant the finding made by the court 'that the supporting affiants were not credible persons within the meaning of the law.

The prosecution rested on the testimony of Della Brannon, who testified that she had bought whiskey “once or twice” in 1921 from a man w'ho had been introduced to her as Owen Herren, this being appellant’s name. This witness testified that this man visited a woman living with her named Bose Wilbur, and that he was’ one of several brothers. She failed to indentify appellant as the man from whom she purchased the liquor, and declined to say whether he was the man or not. The identification of appellant as the man introduced to witness as Owen Herren was made by other witnesses, who testified that it was Owen Herren who visited Bose Wilbur at the home of the witness in 1921. It is insisted that the State failed to show the identity of appellant as the man who made the sale; but this was a question of fact which has been passed upon by the jury, and all the circumstances in the case, considered together, make the testimony legally sufficient to support the jury’s finding in this respect.

It is quite evident that the witness was very friendly to appellant, and sought to shield 'him in her testimony. She explained her defective memory by saying that she had been in bad health, and that appellant had been away from Fort Smith, where both witness and appellant had resided, since 1922, when he was indicted.

One of the assignments of error relates to the circumstances concerning appellant’s departure from Fort Smith. Officers of the law testified that they had a number of warrants for the arrest of appellant about the time the indictments on which he was .being tried were returned, and that they went to appellant’s home to arrest him. When apprised by the officers that they had come to arrest him, appellant asked to be allowed to go back into his house to get his hat. This permission was given, and appellant went into the house and out of it through a back door, and was not seen again until 1925, when he was arrested. This testimony was admissible, as the flight of a person charged with the commission of a crime has some evidentiary value on the question of his probable guilt. Stevens v. State, 143 Ark. 618.

The witness Della Brannon equivocated more or less in her cross-examination by counsel for appellant, the effect of which testimony was to make more doubtful the identification of appellant as the man who had made' the sale. The prosecuting attorney then examined the witness relative to a statement she had made to J. T. Tisdale, a prohibition officer, and the failure of the court to sustain an objection to this testimony is assigned as error. It is insisted that the ruling of the court offended against the rule announced by this court in the case of Doran v. State, 141 Ark. 442. In that case we construed § 4186, C. & M. Digest, which provides that the party producing a witness shall not be allowed to impeach his credit by evidence of bad character, unless it is a case in which it is indispensable that the party shall produce him, but may contradict the witness with other evidence and may show that the witness has made statements different from his testimony at the trial. In the case cited we said the statute did not apply to a case where the witness does not state any fact prejudicial to the party calling him, but only fails to prove facts supposed to be beneficial to the party calling him.

The rule announced in the Doran case supra, does not apply here because the witness, on her cross-examination, gave testimony adverse to the 'State by making doubtful the identity of appellant as the person who had made the sale of the whiskey. The party to whom the alleged contradictory statement was made was not called in the instant case to testify in regard to the statement, as was done in the Doran case, supra. In that case the witness denied making the statement damaging to the defense, and the State called another witness to prove that the first witness had made the statement in question to him. Here the inquiry was confined to the cross-examination, and to the re-direct examination of the witness Della Brannon, and no error was committed in permitting this examination. Moreover, at the conclusion of the re-direct examination of the witness Della Bran-non, she admitted having made the statement to Tisdale, and that the statement made to him was true.

"Witnesses for the State testified to finding a quantity of liquor in appellant’s house, and the admission of this testimony is assigned as error. This testimony was competent as tending to show appellant was engaged in the business of selling liquor. Mobley v. State, 135 Ark. 475.

Appellant became a witness in his own behalf, and thereafter the State offered testimony to the effect that his reputation for truth and morality was such, that the impeaching witnesses would not believe him on oath, and the admission of this testimony is assigned as error. In admitting this testimony the court admonished the jury that it could b.e considered only as affecting the credibility of the defendant as a witness. No error was committed in admitting this testimony for the purpose for which it was offered, as a defendant who takes the stand in his own behalf as a witness is subject to impeachment in the same manner as any other witness is. Younger v. State, 100 Ark. 321.

It is finally insisted that the verdicts were not supported by any competent evidence. This assignment of error may be disposed of by stating, in addition to the testimony hereinbefore recited, that the witness Della Brannon testified that she had bought whiskey “once or twice ’ ’ from a man named Owen Herren in 1921 in Fort 'Smith, and we think the testimony, considered in its entirety, sufficient to warrant the jury in finding that appellant had been sufficiently identified as the man who had made the sale.

We think, however, there was not sufficient testimony to sustain both convictions. The State made no attempt to prove a sale to any one except Della Brannon, and her testimony is too indefinite to sustain more than a single conviction.

As we have said, she admitted saying to Tisdale that she had bought ¡whiskey from appellant, her exact answer being, “I said I had bought whiskey from the Herren boys, from Owen Herren.” “Q. Was that •true?” and she answered, “A. That was true.” On her examination in chief the witness Della Brannon had been asked, “Q. About how many times did you buy it (whiskey) from him (appellant)?” and she answered, “A. Once or twice; I don’t remember.”

This testimony supports a conviction, but it supports only a single conviction. The judgment sentencing appellant to the penitentiary in case 8698 was first pronounced, and a judgment was also pronounced in case 8699 sentencing him to a year in the penitentiary,, the sentence to begin at the end of the year’s imprisonment imposed by the judgment in case 8698.

The sentence in the first case will be affirmed.

The sentence in the second case will be reversed, and the cause dismissed.


author: McCulloch, C. J.

text:
    J. F. Beasley Lumber Company v. Sparks.
    Opinion delivered November 2, 1925.
    1. Evidence — hearsay.—In an action where one of the issues was as to what it would cost the defendant to complete a certain building, it was not competent for her to state what another person had told her as to the probable cost.
    2. Partnership — authority of partner to make contract.— Where a partnership was formed solely for the purpose of selling lumber and other building material, it was not within the apparent scope of the authority of one of the partners, without the consent of the other, to enter into a contract for the construction of a 'building.
    Appeal from Union Circuit Court; L. 8. Britt, Judge;
    reversed.

      Poivell, Smead S Knox, for appellant.
   McCulloch, C. J.

J. F. Beasley and the appellant, R. A. Simpson, were copartners, formerly doing business under the name of J. F. Beasley Lumber Company, and they instituted this action in the circuit court of Union County against appellee, Mrs. M. M. Sparks, to recover the sum of $2,129.77 for lumber and other building material, alleged to have been sold and delivered, and to enforce a lien on a building and the lease hold upon which the building was situated. Appellee answered denying that she was indebted to the copartnership in any sum, and she‘filed a cress-complaint against the copartners for damages for breach of an alleged contract on the part of the copartners to construct a certain building for her. Appellee alleged in her complaint that J. F. Beasley, acting for the copartnership, entered into a verbal contract with her whereby the copartnership undertook to furnish the material and erect a building in the city of El Dorado for the sum and price of $6,500, the building to be erected on a lot previously leased by appellee, and to be used in the operation of a hotel. It was alleged that appellee paid to the copartnership the sum of $3,500 on the price, but that the latter had failed and refused to complete the building, and that she suffered damages thereby in the total sum of $16,700.

On the trial of the cause, the court excluded from the consideration of the jury all elements of damage except for the cost of the completion of the building*. The jury returned a verdict in favor of appellee and assessed her damages at the sum of $4,000.

Appellant R. A. Simpson filed a separate answer to appellee’s cross-complaint denying that the copartnership had entered into any contract with appellee, and also denied that J. F. Beasley had any authority to enter into such a contract on Behalf of the copartnership. ’ He alone has appealed from the judgment in appellee’s favor.

It appears from the testimony that Beasley and appellant Simpson were engaged in operating a lumber yard in Hot Springs, Arkansas, for the sale of lumber and other building material, and that early in the spring of the year 1921 they opened up a lumber yard at El Dorado; Beasley 'being placed in charge of the business. Simpson resided at Hot Springs, and did not participate actively in the management of the copartnership1 business.

Appellee testified that she went to El Dorado from some point in Texas in April or May, 1921, for the purpose of engaging in the hotel business; that she met Beasley there, with whom she had been acquainted for a considerable length of time, and that Beasley then entered into a contract with her on behalf of the J. F. Beasley Lumber Company to construct a frame, three-story building for her at the price of actual cost of labor and material, plus ten per cent, for supervision, all not to exceed the sum of $6,500. There is a little uncertainty in her testimony a,s to the specific terms of the contract, but we are of the opinion that the jury had a right to construe her testimony to mean that the building was to be constructed at actual cost, plus ten per cent., not to exceed $6,500. Appellee was corroborated by her son, who testified that he was present and heard the conversation between his mother and Beasley. Beasley did not testify in the case.

Appellee testified that she gave to Beasley from timé to time three checks, payable to the J. F. Beasley Lumber Company, and aggregating $3,500, and that the last check was cashed by Simpson in Hot Springs on June 18. She testified that work on the building came to a stop, and on July 6, 1921, she heard that the firm of J. F. Beasley Lumber Company was in financial difficulties, that there had been a falling out between the copartners, and that a receivership had been applied for. She testified that she went to see Simpson and discussed the matter with him of completing the building, and that he discussed the matter with her at some length, proposing to complete the building if she would pay for the lumber, material ;and labor, but that he finally declined to complete the building.

Simpson testified that the copartnership was engaged solely in the business of selling building material, and not in constructing houses, and that Beasley had no authority to contract in the name of the copartnership for the construction of the building.

It is first contended that the court erred in permitting appellee to testify concerning statements made to her by a certain building contractor as to the estimated cost of completing the building. She was permitted to testify, over objections of appellant, that a Mr. Finn had figured up for her the cost of completing the building- and informed her that it would amount to the sum of $4,600. This testimony was purely hearsay, and we are of the opinion that the court erred in admitting it. If appellee had completed the building, she could have testified as to its cost, but, since she did not have it completed and it became necessary to estimate the cost, it was not admissible for her to state what another person had told her as to the probable cost. Finn himself could have testified as to the cost of the building, but his statement could not be brought before the jury in the form of hearsay -testimony. This error was material because it appears to have been the only testimony as to what it would cost to complete the building, and it afforded the only basis for fixing the amount of damages.

We are also of the opinion that the court erred in submitting to the jury the question of appellant’s liability on the ground that there was no authority nor apparent authority on the part of Beasley to execute such a contract on behalf of the copartnership. The court erred in refusing, for that reason, to give appellant’s peremptory instruction and in giving to the jury appellee’s instruction No. 2 submitting the question whether Simpson “held himself out, or knowingly permitted himself to be held out, as a partner of J. F. Beasley in the contract with the defendant for the erection of the building*. ’ ’ There is no claim on the part of appellee that Simpson actually authorized Beasley to enter into the contract, or that he was aware of the fact that Beasley was doing so in the name of the copartnership. Nor is there any evidence that that kind of a contract had ever before been executed by the copartnership or any member thereof. The undisputed evidence is that the copartnership was engaged solely in the business of selling lumber and other building material. It was therefore not within the apparent scope of the authority of either of the copartners, without the consent of the other, to enter into a contract for the construction of the building. The only circumstances introduced as tending to show that Simpson was apprised of the fact that such a contract existed was the proof that he cashed the last check given by appellee for $1,000 payable to the J. F. Beasley Lumber Company. There is nothing to show that Simpson at that time was apprised of the fact that this check had been given as part payment under a contract for the construction of the building. Material was being furnished for the building, and, as that was within the scope of the , regular business of the copartnership, 'Simpson had the right to assume that the payment was made on the account for material sold. Certainly there was no .testimony in the case tending to show that Simpson permitted himself to be held out as a partner with Beasley in the contract.

Reversed and remanded for a new trial.


text:
    Mabelvale Special School District v. Halstead Special School District.
    Opinion delivered November 2, 1925.
    1. Records — evidence to supply lost record. — Evidence held insufficient to prove the contents of a record of the county court alleged to be lost.
    2. Schools and school districts — order transferring children and taxes. — An order for the transfer of children and taxes from one school district to an adjacent district is merely temporary and remains in effect only while the districts of and from which the transfer is made remain in existence, and any change in the status of the territory operates as an abrogation of the order of transfer.
    3. Schools and school districts — recovery of taxes improperly distributed. — Where school taxes have been regularly but erroneously distributed to a school district and been consumed in educational purposes, the district which should have received them is not entitled to recover therefor from the other district.
    Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor;
    reversed.

      Floyd Terral and A. L. Rotenberry, for appellant.

      Isgrig é Dillon, for appellee.
   McCulloch, C. J.

This is a controversy between two adjoining special school districts in Pulaski County concerning the distribution of taxes on certain tracts of land, each district claiming that the lands in controversy lie within its boundaries. The action was instituted by appellant in the Pulaski Chancery Court against appellee and the county clerk and treasurer of the county to restrain the clerk and treasurer from distributing the taxes on the lands in controversy, and to compel the officers, iby mandamus, to distribute those taxes to appellant district, and also to restrain the distribution of taxes for future years to appellee district. In the original complaint there was also a prayer for recovery from appellee district of the amount of taxes on these lands for prior years used by appellee district, but the amended complaint omits that prayer; at least, it is not insisted hero that appellant is entitled to recover of the Halstead Special School District the taxes received and used by the district in prior years. The only effort is to secure for appellant district the taxes for the years 1923 and 1924, which were in the 'hands of the treasurer, and also to prevent diversion of those funds to the Halstead District in future years.

The history of the formation of both the districts and the description of the boundaries, so far as disclosed by the records of the county court, are brought into the record of this case. It appears from those records that ■Common School District No. 1 was created by an order of the county court in the year 1869, and embraced the lands involved in the present controversy. Common School District No. 39 was created by order of the county court on March 10, 1885, out of a part of the territory of District No. 1, including the lands in controversy. On June 27,1885, Common School District No. 40 was created by order of the county court out of part of the territory of District No. 39, and embraced the lands in controversy, and on April 27, 1906, District Nos. 39 and 40 were consolidated and designated as Common School District No. 40. In the year 1914, Common School District No. 40 was converted into a rural special or single school district designated as Mabelvale Special School District. It is thus seen that, according to the record, the lands in controversy were originally in Common School District No. 1 and then in District No. 39 and then in District No. 40 and then in Mabelvale Special School District, and according to those records the lands are in that district now.

It is the claim in behalf of Halstead Special School District that about the year 1901 there was an order of the county court changing the boundaries of Districts Nos. 1 and 39 so that the lands in controversy were retransferred from the latter to the former, and that when the Halstead Special School District was created by order of the county court in the year 1918 out of the territory of Common School District No. 1, the lands in controversy thereby fell within the boundaries of that' district. In the trial of the case in the chancery court, the Halstead Special School District sought to sustain its contention by introducing parol testimony ¡to prove an order of the county court retransferring the lands in controversy from Common School District ,No. 39' to Common School District No. 1. Conceding that such proof was competent to establish such a record (Davies v. Pettit, 11 Ark., 349), we are of the opinion that the proof fails to come up to requirements, in that it is not definitely shown that such an order was ever made by the county court or that it had been lost. Two or three witnesses residing in Halstead Special School District testified that somewhere about the year 1901 there was a movement among the people of that locality to bring this disputed territory into District No. 1 op account of the convenience to the people residing there and the schools in District No. 1. No witness testified to being present in court when a petition for the changes was made or acted on by the court. The only witness whose testimony tends to establish an order of the county court is Mr. LeMaster, who said that he was elected a director of Common School District No. 1 in the ye'ar 1902, and that shortly thereafter his predecessor handed to him what purported to be a certified copy of an order of the county court transferring the lands in controversy from District No. 39 to District No. 1, and that afterwards he went to the office of the county clerk and saw the order on the record — his statement being that the record book in which he saw the order was a book of about two hundred pages, “a dark looking book,” that had a plat of the school district in it. The testimony of the witness was that the certified copy which was turned over to him by his predecessor was from the original order signed by the county judge, and that he had lost it. This testimony is far'too vague and indefinite to justify the re-establishment of a lost record or prove its loss and contents. The records of the county court are kept in well bound books, unlike loose documents filed in the office, and they can be readily turned to, or, if lost, the loss can be proved by the absence of the record book. There is no attempt to show here that there was any r.ecord book of the county court either missing or mutilated. Neither the clerk nor any of his deputies were introduced to account for any missing record book of the court. If the witness ever saw a recorded judgment of. the county court on this subject, it could have been produced by the clerk or his deputies, or the loss of the record proved by some of them. It is not sufficient to say merely that the witness and other persons made a search in the clerk’s office to find the record and flailed to find it. Nor is the testimony sufficient to prove the contents of the lost record, even if sufficient to prove the loss. It is true that the witness says it embraced the controverted lands and transferred them from District No. 39 to District No. 1, but it. is not made definite whether this Was a change of the boundaries of the district under the authority of Crawford & Moses’ Digest, § 8823, or whether it was a mere transfer of children and taxes for school purposes, pursuant to § 9056, Crawford & Moses’ Digest. If the effect of the order was merely a transfer of the children and taxes, the subsequent formation of appellant district embracing that territory abrogated the former order of transfer. Gacking v. School District of Fort Smith, 65 Ark. 427. Such an order is temporary, and only remains in effect while the districts of and from which the transfer is made remain in existence, and any change in the status of the territory operates as an abrogation of the order of transfer.

Our conclusion therefore is that the court erred in denying the relief sought for by appellant.

There is no effort at the present time, as we have already said, to recover taxes for prior years, and it is obvious that appellant is not entitled to recover taxes which have been regularly, though erroneously, distributed to appellee district and consumed in educational purposes. It is too late now for appellant to recover those funds, but appellant is entitled to the funds arising from the taxation on the disputed lands and to have those funds distributed to it; that is to say, the taxes in the hands of the treasurer at the time this suit was commenced and all subsequent taxes.

The decree is reversed, and the cause remanded with directions to enter a decree in accordance with the prayer of the amended complaint.