text:
    St. Louis-San Francisco Railway Co. v. Boudreaux.
    Opinion delivered July 9, 1923.
    1. Removal op causes — separate causes of action. — Where a petition charged- a cause of action under the State Employers’ Liability Act in one count, and in another count a cause of ac■’■tion under the Federal Employers’ Liability Act, the fact that the cause of action under the State law was removable rendered the whole case removable, although the cause of action under the Federal act would not alone be removable, under U. S. Comp. Stát. § 8662.
    2. Action — separate causes. — Causes of action under the State Employers’ Liability Act and the Federal Employers’ liability Act are separate -and distinct, neither being paramount or superior to the other.
    Appeal from Crawford Circuit Court; James Cochran, Judge;
    reversed.

      W. F. Evans and Warner, Hardin & Warner, for appellant.
    ' It was reversible error to deny appellant’s petition for removal to tbe United States District Court. Tbe allegations of tbe petition for removal can alone be looked' to in determining the right to removal. If tbe allegations -of the complaint are in conflict therewith, they must be ignored. 75 Ark. 116; 87 Ark. 136; 98 Ark. 509; 122 U. S. 514. Tbe second count of tbe complaint alleged generalities and conclusions of fact and law, and was insufficient to state a cause of action under tbe Federal Employers’ Liability Act. Conclusions cannot be pleaded. 121 Ark. 194; 147 Ark. 362. An employee repairing an engine is not within tbe purview of tbe Federal statute, unless tbe engine being repaired is exclusively devoted or -assigned to tbe movement of interstate traffic. (U. S.) 61 Law ed. 358; 62 Id. 925; 1 Roberts, Fed. Liaibil. Carriers, §§ 488-489. Decisions of tbe Federal courts govern and control in all actions based on tbe Federal statute. 129 Ark. 520, 534. Even if tbe engine bad been devoted and assigned exclusively to interstate transportation, under tbe allegations of tbe complaint it bad been withdrawn therefrom, and the Federal statute had no application. TJ. S. Snp. Ct. Adv. Ops., July 1, 1922, p. 591. Both the carrier and the- injured employee must have been engaged in interstate transportation at the time of the injury, to authorize a recovery under the Federal Employers’ Liability Act. (U. S.) 58 Law ed. 1051, Ann. Cases 1914-C, 163; 124 Ark. 127; 202 Fed. 766; 108 Pac. 774; 118 N. E. 986; 179 Fed. 175; 105 N. E. 1025; 106 N. E. 369. Where there are two causes of action alleged in one complaint, and one is removable on the ground of diversity of citizenship and the other not, the cause is removable to the Federal court. 127 Ark. 170, 178; 220 Fed. 731; 229 Fed. 319; 245 Fed. 788; 247 Fed. 233; 203 Fed. 1021; 2 Roberts Fed. Liabilities, § 657, p. 1150 et al.

      Riser & Gardner and G. L. Grant, for appellee.
    There was an allegation in the complaint bringing the case squarely within the Federal Employers’ Liability Act, and it was therefore not removable. When an employee is engaged alternately in interstate and intra-state commerce, and is injured, the presumption is that he was employed in intra-state commerce at the time he was injured; and the burden of proving that he was not so engaged at the time of the injury rests upon the party alleging it — in this instance upon the appellant. 256 IT. S. 332. The question of whether the case was removable is to be tried and considered as of the time the petition for removal was filed. 200 TJ. S. 206; 108 TJ. S. 561. A complaint may be so drawn as to allow a recovery under both the State and Federal law, and making the case non-removable. 246 TJ. S. 276; N. Y. G. Ry. Go. v. Kennedy, TJ. S. Ct. Adv. Ops., January 1, 1923. The Federal Employers’ Liability Act superseded all State laws on the subject, and person injured while employed in interstate commerce has but one cause of action, supra; 246 TJ. S. 653; 238 TJ. S. 599; 192 Fed. 353; 193 Fed. 768 ; 203 Fed. 580 ; 247 Fed. 819; 276 Fed. 337; 226 TJ. S. 570. Where a cause of action is stated in the alternative, as in this case, it is not removable. 236 Fed. 584; 223 Fed. 448. As to the sufficiency of the complaint to state a oanse of action under the Federal Employers’ Liability Act, see Wabash By. Co. v. Hays, 234 U. S.; 201 Fed. 591, 594; 238 IT. S. 602. Before the trial court is compelled to remove such a case as this to the Federal court, the petition must show that the allegations in the complaint bringing the case within the Federal act are fraudulently inserted for the purpose of defeating the defendant of his right to a removal; and the showiiig of fraud must consist of a statement of facts from which that conclusion may rightfully be drawn. 227 U. S. 184; 234 U. S. 146; 246 U. S. 276. The act of Congress is a limitation upon the jurisdiction of the Federal district courts as a class with respect to trying oases that arise under the Federal act. 227 Fed. 819 ; 208 Fed. 29; Lewis, Removal of Causes, 164. The plaintiff was entitled to have the State court decide whether a cause of action was stated under the Federal act. 216 Fed. 801.
   Humphreys, J.

Appellee instituted this suit against appellant in the circuit court of Crawford County, to recover damages for an injury received through the alleged negligence of appellant on January 30, 1921, in its shops at AJton, Oklahoma, while employed by and engaged in placing a spring in engine No. 1262, in pit No. 4. Omitting formal parts, the complaint is as follows :

“1. That the plaintiff is a citizen of the State of Missouri, and resides in Monett, in said State.
“2. That the defendant is a railway corporation, created and existing under and by virtue of the laws of •the State of Missouri, and therefore resides in said State, but is licensed to do business in the Státe of Arkansas, and that upon all days named herein it was operating a line of railway in this State; that it also operates a line of railway in the State of Oklahoma, said line passing through the town of Afton, Oklahoma, and was doing so on all days named herein.
“3. That on or about the 30th day of January, 1921 (the exact date being unknown to the plaintiff but well known to the defendant), the plaintiff was employed by the defendant at the town of Afton, in the State of Oklahoma, as a machinist and mechanic in repairing engines and train equipment; that while in the performance of his duties, engaged in repairing defendant’s engine No. 1262, at pit No. 4, it became and was necessary to put in a main left back driving spring on said engine; that in order to put said spring- in it became and was necessary for the plaintiff to go under the engine; that he did so, and in placing said spring in proper place he rested said spring upon the brake-rigging under said engine, and requested the foreman over him, H. L. Foley, to furnish assistance to aid him in properly placing said spring in position in said engine; that the said Foley in person undertook to assist the plaintiff in placing said spring; that thereupon this plaintiff raised said spring upon the frame, at the time advising said foreman not to undertake to move it until the plaintiff advised him to do so; that, as the plaintiff attempted to raise said spring, the said foreman, without being ordered to do so by the plaintiff, and without right, prematurely, carelessly and negligently shoved a jack lever bar up against said spring, and by the force of such shove pushed and shoved the said spring upon this plaintiff; that the said spring was heavy, and fell with great weight upon this plaintiff while he was stooped over, thereby injuring the plaintiff and wounding him in his back, body, limbs and spine, and otherwise internally and externally injuring and damaging him, and also caused him to have curvature of the spine, from all of which he has been caused to suffer great mental and physical pain, to lose •time, and have medicines and medical attention, and he will be compelled to lose time, to suffer great physical and mental pain and to spend money for medicines and medical attention for all time to come, and lie is permanently injured.
“4. That the said foreman, Foley, negligently shoved the said spring' upon this plaintiff, and without warning the plaintiff that he was going to do so; that the said foreman also negligently used a jack lever bar to handle said spring, the said bar being blunt and too large to fit into the eyes of the spring to hold it, said bar not being the tool usually used or proper to be used in doing what the said Foley was attempting to do; that by using a buggy bar or some other similar tool, small enough to pas® through the eye of the spring, which was a proper tool with which to do such work, it would have hooked into the eye of the spring and held it in position, and would not have shoved it and caused it to fall upon the plaintiff. That in holding the spring as he did the said foreman, Foley, and the said defendant failed to furnish the plaintiff with a reasonably safe place in which to work, and negligently failed to exercise ordinary care to do so, and negligently failed to exercise ordinary care to furnish safe and proper tools and appliances with which to do the work.
“5. The plaintiff further states that, by reason of the aforesaid carelessness 'and negligence of the defendant and its said foreman, Foley, he has been seriously and permanently injured and damaged, as herein set out, in the sum of fifty thousand dollars, for which sum he prays judgment, and for costs'and all proper relief.”
SECOND COUNT.
“The plaintiff, for a further cause of action against the said defendant, states:
“1. That he makes paragraphs 1, 2, 3, 4, and 5 a part of this paragraph the same as if they were specifically set out herein, word for word.
“2. That the said engine No. 1262, upon which'he was working at the time he was injured, as above set out, was a regular road engine of the defendant, and-wa® used by it in hauling and moving and conducting its interstate commerce business; that the said engine was being prepared by the plaintiff for ¡the defendant so that it could move freight and pull its trains in interstate commerce; that at the time the plaintiff was injured he was employed by the defendant in interstate commerce, and the defendant was engaged in interstate commerce, and intended to use said engine for that purpose.
“That by reason of the injuries aforesaid, caused by the carelessness and negligence of the defendant and its said foreman, Foley, the plaintiff had been seriously and permanently injured and damaged, to his great damage in the sum of fifty thousand dollars, for which sum he prays judgment, and for all proper relief herein. ”

Within apt time appellant filed its petition and bond in proper form, praying for a removal of the cause to the United States Court for- the Western- -District of Arkansas, upon the ground of a diversity of .citizenship. The petition was -overruled by the court,- over the objection and exception of appellant. Thereupon-appellant filed an answer, denying the material -allegations of the complaint, and interposing the further defenses of contributory negligence --and assumption of risk. The cause was then submitted upon the- pleadings, evidence, and instructions of the court, which resulted in- the judgment in favor of appellee, from which is this appeal.

Appellant’s first contention for a reversal' -of the judgment is that the -court erred in overruling its motion to -transfer the cause to the District Court of -the United States. The complaint alleges two causes -of -action, in separate counts. In the first count a cause of action, is charged under the State law, -and "in the; second count a cause is charged under the Federal Employers ’ Liability Act. At the time the petition for removal was filed, appellant was -a citizen -of Missouri and appellee a citizen of Oklahoma. It is provided in the amendment to the Federal Employers’"Liability Act that: “The jurisdiction of the courts of the United States under this act shall be concurrent with that of the courts of the several States, and no case arising under this act and brought in any State court of competent jurisdiction shall be removed to any court of the United States.” Appellee admits that, if it were not for this statute, the cause would have been removable on account of the diversity of citizenship. Sec. 28 of the Judicial Code of the United States is as follows:

“Any other suit of a civil nature, at law or in equity, of which the district courts of the United States are given jurisdiction by this title, and which are now pending or which may hereafter be brought in any State court, may be removed into the district court of the United States for the proper district by the defendant or defendants therein, being nonresidents of that State.”

It was said by this court in the case of Mo. Pac. Ry. Co. v. Tompkins, 157 Ark. 16, that “if the plaintiff brings suit in the State court of his district, the defendant, being a nonresident of such State, can remove such suit to the Federal court, whether the plaintiff objects or does not object, if the other conditions of the removability are complied with.” In support of the interpretation given the removal statute last quoted, the court cited the eases of General Investment Co. v. Lake Shore & Michigan So. Ry. Co., 260 U. S. 261, and Lee v. Chesapeake & Ohio Ry. Co., 260 U. S. 653. Appellee’s contention is that, notwithstanding the removability of the cause from the State to the Federal court on account of the diversity of. citizenship, if the cause is within the Federal Employers’ Liability Act, it cannot be removed. This contention would be sound if the cause stated was solely within the Federal Employers’ Liability Act. This court is committed to the doctrine that causes of action under the State law and Federal Employers’ Liability Act are separate and distinct causes of action; that one is not paramount or superior to the other, and, though joined', in the same complaint, which is permissible, they are two. separate causes of action. Midland Valley Rd. Co. v. Ennis, 109 Ark. 206. To adopt the suggestion of appel-lee that the cause alleged in the instant complaint under the State law merges in the cause alleged under the Federal Employers’ Liability Act would, in effect, overrule the Ennis case, supra. In this view, the next question which presents itself for determination is whether an entire case is subject to removal, when two separate causes of action are embraced in the complaint, one being removable and the other not. In the case of Flas v. Ill. Cent. Ry. Co., 229 Fed. 319, the court said: “The prohibition of removal mentioned in section 6 of the Employers’ Liability Act is limited to cases which purport, by the plaintiff’s petition, to arise under that act; and when, to a cause of action arising under that act, there is joined one which does not purport to arise under that act, the prohibition does not apply.” The rule thus announced finds support in the following cases: Lusk v. Osborn, 127 Ark. 170, 1. c. 178; Strother v. Union Pac. Ry. Co., 220 Fed. 731; Bedell v. B. & O. Ry. Co., 245 Id. 788; Givens v. Wright, 247 Id. 233; Patterson v. Buchnall S. S. Line, 203 Id. 1021; 2 Roberts, Fed. Liab., § 657, p. 1150 et seq; Shappirio v. Goldberg, 192 U. S. 232, 48 Law. ed. 419, 1. c. 424; Hayward v. Nordberg Mfg. Co. (C. C. A.), 85 Fed. 4, 1. c. 8; Greenfield v. U. S. Mortgage Co., 133 Fed. 784. Appellee has cited the cases of G. N. Ry. Co. v. Alexander, 246 U. S. 276, and N. T. C. & H. R. Ry. Co. v. Kinney, 260 U. S. 340, in support of his contention that a complaint may be so drawn as to allow a recovery under both the State and Federal law and yet be nonremovable. We do not understand that these cases are applicable to the point involved in ■the instant case. As we read them, only one cause of action is stated in each case. The question in the Alexander case was whether a nonremovable case stated in the complaint became removable under the testimony adduced without a voluntary act on the part of' the plaintiff converting it into a removable case. The court ruled that it required a voluntary act on the part of the plaintiff to convert a nonremovable cause into a removable one. The sole question involved in the Kenney case was one of limitations ,and not one of removal to the Federal court.

We think the weight of authority is to the effect that, when separate and distinct causes of action,are joined in the same complaint, one being removable ’and the other not, the entire case becomes subject to removal.

Other contentions are made by appellant for a reversal of the judgment, but, in our view of the law on the removability of the case, it is unnecessary to determine them.

The court erred in overruling the petition to remove the case to the Federal court, and for that reason the judgment is reversed, and the cause remanded with directions to allow the petition.


source: Caselaw Access Project

author: Wood, J. McCulloch, C. J.,

license: Public Domain

text:
    Alexander v. Stuckey.
    Opinion delivered July 2, 1923.
    1. . Statutes — partial invalidity. — Where a statute is unconstitutional in part, the valid portion will be sustained if complete in itself and capable of being executed in accordance with the apparent legislative intent.
    2. Animals — validity of stock law. — If Special Acts of 1921, No. 4, providing for a local option stock law in Miller County, be unconstitutional in so far as it provides for the ascertainment of damages by three disinterested householders, the remainder of the act is valid and enforceable, in view of § 12 providing that if any part of the act be held to be unconstitutional, it shall nevertheless be held valid as to such parts as are constitutional.
    3. Animals — contest of stock law election — limitation.—Under Spec. Acts 1921, No. 4, § 2, providing that a stock law election under that act shall be held under the general election laws so far as applicable, an action to contest a stock law election is barred by the six months’ limitation of the general election laws ' contained in Crawford & Moses’ Dig., § 3847.

      4. Statutes — adoption of prior statute by reference. — Acts 1921, No. 4, § 2, providing that a stock law election under that act “shall be held under the general election laws, so far as they are applicable,” is not contrary to Const., art. 5, § 23, providing that “no law shall be revived, amended or the provisions thereof extended or conferred by reference to its title only.”
    Appeal from Miller Chancery Court; G. E. J ohnson, Chancellor;
    affirmed.

      Louis Josephs, James D. Head and Pratt P. Bacon, for appellants.
    Act No. 4, Acts of 1921, under which the election was held, is unconstitutional, violating sec. 8, art. 2, Constitution of Arkansas, and sec. 1, art. 14, Constitution of the United States, the “due process” clause. Fort Smith v. Dodson, 46 Ark. 296; 80 Ark. 333; 30 S. W. (Tex.) 440 ; 99 N. W. (Neb.) 505; 61 L. R. A. (Ariz.) 410. The facts of Howell v. Dauget, 148 Ark. 450,'are altogether different from facts of this case. 32 Ark. 131; 33 Ark. 816. The provisions of the statute relating to damages being unconstitutional cannot be eliminated without destroying the intent and purpose of the act, leaving it incomplete and incapable of enforcement. 49 Ark. 110; 89 Ark. 466; 111 Ark. 108; 138 Ark. 381. The election was illegal, being held without giving the notice as required. Lewis v. Young, 116 Ark. 291; 153 Ark. 50; 153 Ark. 188; 67 Ark. 30; 104 Ark. 298; 110 Ark. 544; 42 Ark. 93; 52 Ark. 265; 36 Ark. 446; 89 Ark. 284; 117 Ark. 465, relied on by appellee, distinguished.

      J. M. Garter and B. E. Garter, for appellees.
    The election was valid, there having been substantial compliance with the statutory requirements as to notice. 36 Ark. 446; 50 Ark. 266; 89 Ark. 284; 92 Ark. 67; 117 Ark. 465; 122 Ark. 418. Statute not in conflict with “due process” clauses of either State or Federal Constitutions. 80 Ark. 333; 148 Ark. 450; 46 Ark. 296; 92 Ark. 155; 133 Ark. 138; 138 Ark. 471. Contest of election- barred by statute, not instituted in time. Sec. 2, special act 4, Acts 1921; C. & M. Digest, § 3847. Chan-eery court was without jurisdiction. Appellants had adequate remedy at law. 133 Ark. 138; 34 Ark. 375; 34 Ark. 559; 34 Ark. 603; 39 Ark. 412; 44 Ark. 139; 85 Ark. 230; 115 Ark. 317; 80 Ark. 369; 95 Ark. 618; 88 Ark. 395; 27 Mont. 79; 124 Minn. 239; 144 N. W. 764.
   Wood, J.

Act No. 4 of the .Special Aets of 1921 provides for a local option stock law for Miller County. Special Acts, 1921, page 1. The first section of the act provides that, upon the petition of twenty-five per cent, of the qualified electors of any political township in Miller County, the county court or judge thereof shall order an election for such township at the general election, if there be one, within six months from the filing of the petition, and, if not, at a special election, to determine whether the stock law shall take effect in the township, as provided in subsequent sections of the act.

The second section provides that notice shall be published in four successive weekly editions of a newspaper having a bona fide circulation in the township, the first publication to be at least thirty days prior to the election, and not less than twenty written or printed notices of such election to be posted in as many public places in such township at least twenty days prior to the date of the election, and this section concludes as follows: ‘ ‘ Said election shall be held under the general election laws of the State as far as they are applicable.”

This action was instituted by the appellants in the Miller Chancery Court against the appellees. In their complaint the appellants alleged that they were property owners and electors in Sulphur Township, Miller County, Arkansas, and owned stock on the range in that township; that on November 10,1921, an election to determine whether a majoritj^ of the electors was in favor of restraining stock from running at large was held in such township, under the orders of the county court previously made; that the election commissioners certified to the county court that a majority of four had voted in favor of restraining the owners of live stock from allowing same to run at large; that on December 31, 1921, the judge of said county court issued such restraining order; that said election, the election certificate and said restraining order were all void because the notice of said election was not published in four successive weekly editions of a newspaper, and the first publication thereof was less than thirty days prior to said election; that •the appellees and others were wrongfully and unlawfully impounding appellants’ stock and selling the same. The appellants then set. out the substance of the various provisions of the act of which they complain, from section seven to section ten, inclusive, and say: “The provisions of the act are unconstitutional because the owner of said animals, when impounded, is not given a day in court, nor is a hearing provided for him, and said act provides for taking property without due process of law,” contrary to the State and Federal constitutions. The appellants prayed that the act and the election under it be declared null and void, and that the appel-lees be perpetually enjoined from attempting to enforce it.

The appellee demurred on the ground that the court was without jurisdiction, and also that the complaint did not state facts 'sufficient to constitute a cause of action, and answered denying all the material allegations of the. complaint. They pleaded the statute of limitations governing election contests in bar of the action, and set up laches as follows: That appellants “have waited from the tenth of November, 1921, the day of said election, when they and all others in the township knew that a majority had voted in favor of restraining stock from running at large in said township, under the terms of said act, for a period of more than a year and a half, and thereby and on account thereof a great majority of fbe people in Sulphur Townr ship have permitted their fences with which they had their tillable lands inclosed to go down, decay and ruin, and that they have built pastures in which to. inclose and keep, their live stock, all of which has been done on .account of the laches of these plaintiffs and of others residing in that township who are cooperating and aiding or assisting these plaintiffs in their efforts to declare null and void the stock law election held in said township at the time aforesaid, and that to permit the plaintiffs and all others who are opposed to the stock law in Sulphur Township at this date to come in and upset tne conditions that have been brought about 'and that now exist therein, by reason of their laches in bringing this suit, would be ruinous, unjust and inequitable to a great majority of the people living therein.”

The cause was submitted on the pleadings and upon oral testimony taken in open court by agreement of the parties, which has been properly brought into the record. The trial court entered a decree in favor of the appellees, dismissing the complaint for want of equity, from which is this appeal. •

The appellants contend that the decree of the trial court is erroneous for two reasons: first, because the act is unconstitutional; and second, that the provisions of. the act requiring notice of the election were not complied with.

1. Section 7 of the act provides that any person over the age of twenty-one years may impound stock or animals running at large, in a township where the law has become' operative, until his fees and damages, caused by such animals, are paid.

• ‘ .Section 8 provides for notice in writing to the owner, if known, .and that the owner shall be entitled to possession of the impounded stock “upon payment or tender of the fees,' costs, and damagés.”

Section 9 provides in part that “the damages caused by such stock dr animals may be ascertained by any three disinterested householders of such territory chosen by the parties interested, or by some justice of the peace therein, who shall take an oath to assess such damages fairly and honestly, and their assessment shall be final.”

Section 10 provides 'that if 'the owner, after receiving notice, shall neglect to pay the fees and damages, the person impounding the stock may sell the same at public auction to the highest bidder for cash, after having given, five days’ notice of the time, place and teams of :sale, etc., and apply the proceeds of the sale, after deducting the cost thereof, to the satisfaction of his fees and damages.

Section 11 provides that nothing in the act shall deprive the impounder from enforcing his claim for fees and damages in a court of competent jurisdiction, and gives him a lien on the impounded stock for the payment of his claim for fees and damages.

Section 12 provides as follows: “Should any part of this act he held to be unconstitutional, it shall nevertheless be held valid as to such parts as are constitutional. ’ ’

Now, it will be observed that the act does not lay any penalty upon the owner of stock for permitting same to run at large in violation of the act, and make' such nenaltv nay able to the imoounder. It is made a misdemeanor for any owner or keener of stock to knowingly nermit same to run at large in any township where the act is ooerative. but the "penalty therefor is not made pavable to the impounder of the stock. While the'im-pounder of stock under the act is allowed any damages sustained by him caused by such animals, nevertheless we are convinced, after a careful consideration of the act as a whole, that 'all of the provisions of the' act relating to damages may be eliminated, and a perfect workable act will remain. If seems clear to us that the Legislature would have enacted this statute, ■ after all the provisions as to damages had been eliminated; if if had known that these provisions rendered the act unconstitutional. If the act be unconstitutional, it is only so because of these provisions as to damages, and section 12, as we construe it, is a declaration of the purpose of the Legislature not to permit the act to become invalid because of sudh provisions.

This court has held, in numerous decisions, “.that, where a statute is unconstitutional in part, the valid portion will be sustained, if complete in itself, and capable of being- executed in accordance with the apparent legislative intent.” One of the latest of our cases is that of Oliver v. Southern Trust Co., 138 Ark. 381-7. Other decisions of this court are cited there. It becomes therefore unnecessary to decide, and we do not decide, whether or not the act would be unconstitutional if the provisions as to damages were retained therein, because the appellants here do not raise an issue as to the (amount, if any, or the manner of ascertainment, of damages. No testimony is abstracted by the appellants showing that any damages were incurred, or laid and proved, specifically, as such.

2. The appellants contend that the election was void because the notice was not given as required by law. In Patterson v. Adcock, 157 Ark. 186, the validity of the election held under this act was challenged. In that case we said: “It follows from these decisions that, where nothing is involved except the contest of the result of an election, the circuit court has jurisdiction. This, however, does not exclude the jurisdiction of the chancery court under all circumstances. On the contrary, we are of the opinion that, where property or contractual rights are involved in the result of an election putting into force a statute like the one involved in this inciuirv, the .ebaneerv court has jurisdiction to hear and determine the contest and to afford relief where the statute has not been properly put into force. * * * We do not think that the validity of the statute authorizing the formation of the district is affected by the fact that the statute makes no provision for a contest of the election. If a remedy exists in any óf the courts under the Constitution and general laws of the State, the special statute is not invalid by reason of its failure .to provide .a remedy.” That opinion was rendered in February, 1923, and this action was instituted thereafter on April 4,1923.

It is provided in § 2 of the act that-“said election shall he held under the general election laws of the State, so far as they are applicable.” In the general provisions of our election laws relating to contests, chapter 54, Crawford & Moses’ Digest, is § 3847, as follows: “All actions to contest the election of Supreme Judges shall be commenced within one year after the election or commissioning of >said judges, and actions for contesting the elections of ¡all other officers herein mentioned within six months after they are elected or commissioned. ’ ’

The provisions of the act under review bringing the election under the control of the general election laws of the State, so far as they are applicable, subjects •the election, which the appellants challenge in their complaint, to the above limitation under the general election laws. In Patterson v. Adcock, supra, we held that, although no specific provision was made for the election contest before the county court, nevertheless the chancery court has jurisdiction, where property or contractual rights are involved in the result of an election putting into force a ¡statute like this, to hear and determine the contest. As the act does not make any specific provision for instituting a contest, nor when same may be instituted, nor how it may be conducted and determined, it was undoubtedly the intention of the Legislature in these respects to. make the provisions of the general election laws •apply where applicable. As wé have seen by the section above quoted, the general election laws provide for á limitation upon the time when election contests shall be commenced, and that limitation is six months for all other officers except the Judges of the Supreme Court. Surely the Legislature did not intend that as. important a matter as the time for contesting an election held under this act should be left unlimited — “in the air,” so to speak. The serious results that would follow such construction are outlined in the appellees’ plea of laches. It occurs to us that actions such as this instituted in the chancery court to contest the result of 'an election under the act are analogous to any contest that might be brought under the general election laws to contest an election of officers, and that the same limitation should apply.. Under this interpretation there are definite and fixed rules governing such contests. Otherwise, there are no rules applicable thereto.

In State v. McKinley, 120 Ark. 166, the court had under consideration an act ’providing for the holding of elections in municipal corporation©, the concluding sentence of which reads as follows: “All elections shall be held and conducted in' the manner prescribed by law for holding State and county elections, as far as the same may be applicable.” Answering the objection that the provisions of the general election laws did not apply to that act and that the same was in violation of article 5, § 23 of our Constitution, which provides “that no law shall be revived, amended, or the provisions thereof extended or conferred by reference to its title only,” etc., we said: “Where the new act is not complete, but refers tó a prior statute which is changed so that the legislative intent on the subject can only be ascertained by reading both statutes, uncertainty and confusion will exist, .and this constituted the vice sought to be prohibited by this clause of the Constitution. In the case before us the act is very broad and comprehensive. It is' complete in itself, and in no manner attempts to amend or change the existing election laws. On the contrary,’ the general election laws are undisturbed and are in no wise affected by § 5433’ pertaining to municipal elections. It is no objection to the statute that, in order to ascertain how elections in cities and towns shall be held, it becomes necessary to refer to existing laws relative to holding general elections for State and county officers” (Citing oases). So here. Therefore .that part of § 2 of the act under consideration which provides that “said election shall be held under the general election laws of the State, so fiar as they are applicable,” is not contrary to article 5, § 23 of the Constitution, and is applicable to elections under this law.

We conclude that the appellants’ action to contest the result of the election is barred by the six months’ limitation contained in the general election laws. The decree is in all things correct, and it is therefore 'affirmed.

McCulloch, C. J.,

(concurring): I think that the reasons stated by the majority for affirming the judgment are in conflict with our decision in Patterson v. Adcock, 157 Ark. 186 (which should be treated as the law of this case), where we held that the statute under consideration does not contain any provision for the contest of the election. If that be correct, then the limitation in the general statute for contests.of elections has no application.

I am further of the opinion that, if the election was invalid on account of failure to give notice as required by statute, a court of equity should grant relief regardless of a statute of limitation as to the contest of the election, for the attack on the validity of the election on account of a fatal defect appearing on the face of the proceedings would not be a contest within the meaning of the statute. However, I concur in the judgment of affirmance on the ground that there was substantial compliance with the statute with respect to notice of the election. There was publication in a daily newspaper more than thirty days before the election, and three subsequent publications in a weekly newspaper. The printed notices were posted in the township, as required by statute. The daily and the weekly newspapers were the same publications by the same concern except that one was issued daily and the other weekly, and the publication for the first time in the daily instead of the weekly was, I think, a mere technical omission, which did not affect the validity of the election.


author: Mr. Justice Walker.

text:
    Gaines et al. vs. Hale.
    Under the statute, (Digest, chap. 60,) a certificate of entry of public land, and payment of the purchase money, is sufficient evidence of a legal title, unless such entry was void, to enable the purchaser to maintain an action of ejectment.
    The Register and Receiver of the Land Office having rejected a claim to pre-emption, on appeal to the Commissioner of the General Land Office, the entryywas ordered to be allowed, under directions of the Secretary of the Interior, to enable the pre-emption claimant to contest the title with other claimants, for the same land: Held, That the entry was not void.
    A right to pre-emption had accrued under the act of Congress oí 29th May, 1830: the pre-emptor was unable to make proof of settlomont, &e., as required by law, because the surveys had not been made, and the plats filed in the Land Office; the land was reserved'from sale by act of Congress of 20th April, 1832, before the passage of the act of 14th July, 1832, extending the benefits of the act of 29th May to those who were unable to make proof, because the surveys had not been made: Held, That the rights of the pre-emption claimant were not affected by the subsequent reservation of the land.

      Apjjeal from the Circuit Court of Hot Spring County.

    Hon. Shelton WatsoN, Circuit Judge.
    Watkins & CuRRAN, and G^llagheR, for appellants.
    1. The question presented for the consideration of this court, is, whether the papers, offered in evidence, show such prima fade title in the plaintiffs as authorized them to maintain ejectment. That they do show sufficient title, and were competent evidence, vide Digest 454, see. 2/ McClairen vs. Wicker, 3 Eng. 195 / Morton vs. lleeder¿ 5 Miss. R. 356 / Jackson vs. Wilcox, 1 Scam. R. 344/ S. C. 13 Peter's R. 516/ Bullock vs. Wilson, 5 Porter 328 / 6 Missouri R. 106 / 2 Porter 436/ 5 Porter 245/ 1 Wash. C. G. R. 207; 2 ii. 354, 160, 33/ Coxs vs. Stewart, 1 Stew, curt 379. The recent case of Floydvs. Ricks, léArk. 286, settles the principal question involved in this case; that case goes further, and holds that our statute makes 'an entry a legal title in any action.
    If the title we offer is a legal title, no equitable title could, in this action, be set up in opposition to it.
    In ejectment, the legal title always prevails and an equitable title is not regarded.
    The legal title always prevails in the action of ejectment.
    Our statute makes this a legal title. It is not necessary that ■we should contend that it is a paramownt or eonelusive title; it is sufficient that it is prima facie, and good against the world except the United States. Jackson vs. Wilcox, 13 Pet&rs 516 / Bagnell vs. Broderick, ib. 436.
    2. The decision of the Circuit Court in this case, seemed to be based upon the ground that, as the act of 20th April, 1832, reserved this land from sale, the acts of the Executive Department, in permitting this entry, were void.
    It is a sufficient response to this, to say: that the entry was permitted under tbe pre-emption act of tbe 29th May, 1830, and our title has relation to that day — which, was long before the reservation act of 20th April, 1832. That the title has relation to its inception, vide MoAfee vs. Keirn, 7 Smedes. <$> Marsh. Rep. 780 /. Taylor- vs. Brown, 5 Grcunch Rep. 234 / Pollds lessee vs. Win-dell, 9 Oraneh Rep. 87/ Henley vs. Williams, 9 Crcmch 164/ MoArtlvwr vs. Bowden, 4 Wheat. Rep. 488/ Isaacs vs. Steele, 8 Scam. Rep. 97/ Benner vs.-Monlove, 8 Scam. Rep.

    The case of Lytle et-al. vs. The State and others, Howard Rep.; S. O., 7 Bug. Rep. 9, is directly in point upon this question.
    Euglish, and Teapnall, for appellee.
    1. Tbe appellee submits that the pretended certificate of entry, relied on by the plaintiffs, was issued contrary to law, and is a mere nullity, and conferred upon them no right to recover the land from the possession of defendant. The other documents are merely copies of the correspondence between the public officers, serve to show how this certificate came to be issued; but added nothing to its validity.
    The 3d section of the act of Congress, of April 20th, 1832, is in these words: “ That the Ilot Springs in said Territory (of Ar kansas,) together with four sections of land, including said Springs, as near the centre thereof as may be, shall l>e reserved for the future disposal of the United States, and shall not be entered, located, or appropriated for cmiy other purpose whatever.” Public lands — Laws, Inst., and Op., vol. 1 ,p. 495.
    The public lands Belong to the United States. Congress has the exclusive power of providing for the disposal of them, and the net-rese?'ving the land in question from entry,.&c., was binding upon every officer of the Government, from the President down. It tied the hands of the Secretary of the Interior, as well as of the Commissioner of the General Land Office, and the liegister and Receiver, and'the pretended entry of the plaintiffs is as illegal and void as if it had been permitted without the instructions of the Secretary. Wilcox vs. Jaclcson, 13 Peters R. 498/ Hunter vs. Hemphill, 6 Mo. Rep. 106/ Smpy vs. Repin, 7 Mo. Rep. 503/ Stoddard et al. vs. Chambers, 2 Howa/rd U. S. Repofts 284.
    2. The plaintiffs claim a pre-emption to the premises, under the act of May 29th, 1830. Public Lcmds — Laws, Inst, cmcl Op., pa/rt 1 ,p. 473. But this act remained in force for but one year. See sec. 5, of the act. The certificate of entry offered in evidence by them, bears date 15th Dec., 1851, some ten years after the act ceased to be operative, and they offered no evidence in connection with the certificate to show that they availed themselves, or attempted to avail themselves, of its provisions whilst it was in force. Nór did they show, or offer to show, that they came within the provisions of the act of 14iA Roly, 1832, sarnie booh, page - 511/ or of the act of March 2, 1833, same booh, page 529, each of which acts extended the benefits of the Act of May 29, 1830, for one year, not generally, but in special cases therein designated. The certificate was, therefore, for this additional reason, no evidence of title in the plaintiffs, and was properly excluded from the jury.
   Mr. Justice Walker.

delivered the opinion of the Court.

This was an action of ejectment, brought in the'Hot Spring Circuit Court, by the heirs of Ludovicus Belding, deceased, to recover possession of the South - west quarter of section thirty-three, in township two South, of range nineteen'west. The case came on for trial, upon the general issue, and the plaintiffs, to sustain the issue on their part, (the hand writing and signatures of the officers, respectively, being admitted,) offered, in evidence, to the jury, a receipt of the Receiver of the United States Land Office, at Washington, Arkansas, and a transcript, certified by the Register of said Land Office, which are as follows:

“No. 6545. Receiver's Receipt.
BjGCEIVEr’s OFFICE, AT ’WASHINGTON, ARK., )
December 19ÍÁ, 1851. j
Deceived, of Maria Gaines, (wife of William II. Gaines, formerly Maria Belding), AlbertBelding, Henry Belding, and George Belding, the heirs and legal representatives of Ludovicus Belding, deceased, of Hot Spring county, in the State of Arkansas, the sum of two hundred dollars, in full, for the South-west quarter of section thirty-three (33), in township two (2) south, of range nineteen (19) west, containing one hundred and sixty acres (160), according to the return of the Surveyor General, at $1 25 per acre.”
According to instructions, I note that this entry interferes with the New Madrid location of Francis Langloise, on the same lands; and, also, that it embraces lands, directed to be reserved, by the act of Congress of 20th April, 1832, and is only permitted to be made, under the decision of the Secretary of the Interior, under date of November 21st, 1851, and the instructions of the Commissioner of the General Land Office, under date of the 25th of November, 1851, in accordance with said decision.
B. F. HEMPSTEAD, Receiver.
Register’s Tra/nscript.
Geneeal Land Office, ) November %5ih, 1851. [
Gentlehen : The papers accompanying your letters of the 18th and 24th March last, in reference to the claim of the Hot Springs, in Arkansas, having been submitted to the Secretary of the Interior, for his action on the legal point in the case, to wit: the reservation of the land by the act of Congress; they were returned to this office, for its decision, on the respective merits of the pre-emption claims, irrespective of this question.
On the 26th of August last, this office returned the papers, with its decision, adverse to the claim of the heirs of John Percifull, and in favor of that of tbe Leirs of Ludovicus Belding, deceased, it agreeing with you both as to the establishment of the facts of cultivation, in 1829, and possession on the 29th May, 1830, and regarding the objections of the Receiver, founded upon the opinion, that those acts were performed as the tenant of another, as not affecting the validity of the claim. .
On the 14th ult., this office received the opinion and decision of the Secretary of the Interior, dated the 10th of the month, in which ho sustains the existing validity of the act of the 20th of .April, 1832, it not having been repealed, or affected by any subsequent law; and that, therefore, none of the claims, preferred for the land, are of any legality.
On the 16th ult., an application was made, by the attorney of the heirs of Bolding, for permission to make an entry of said claim, in order that they may be placed in a proper position, for the assertion of their rights, hereafter, in the courts, stating that, of course, under the decision of the Secretary, they should not ask for a patent. This was refused by this office, and an appeal, from that action, taken to the Secretary of the Interior, who, on the 21st inst., addressed to this office, a letter, a copy of which is herewith enclosed.
In accordance with the direction of the Secretary, therein contained, you are instructed to permit the heirs of Ludovicus Beld-ing to make payment of the South-west quarter of section thirty-three, T. 2 S., R. 19 W., as containing one hundred and sixty acres; and, in addition to the ordinary, entry thereof, upon your books, and the return to this office, you will note the fact of its interference with the New Madrid location of Langloise ; of its embracing land directed to be reserved by act of 20th April, 1832; and that said entry is permitted, under the Secretary’s decision of the 21st of November, 1851. Similar annotations will be made on the Receiver’s receipt, and Register’s certificate.
Respectfully, your ob’t. serv’t.,
J. BUTTERFIELD, Commissioner.
Register and Receiver, Washington, Ark.
DEPARTMENT OF THE INTERIOR, )
Washington, Nov. 21si, 1851. j
Sir : Upon consultation witli tlie Attorney General, and after full consideration of the application of A. H. Lawrence, Esq., attorney for the heirs of Ludovicus Belding, one of the claimants to the Hot Springs, of Arkansas, on appeal from your decision, of the 15th ultimo, against permitting said heirs to make an entry, under the act of the 29th of May, 1830, and 14th of July, 1832, I have concluded, that it will be proper, and in accordance with precedents, to permit them to do so: and you will, therefore, instruct the Register and Receiver accordingly. Said entry Will remain subject to the same power of revision and control by the General Land Office, and this department, as may be lawfully exercised over any ordinary entry. The Government .will still hold the ultimate power of protecting its own right, while the claimants will be merely placed in a position, to contest the adverse claims of others, to the same land.
I am, sir, very respectfully,
Tour obedient servant,
ALEN. H. JBL STEWART, Secretary.
\
To the Commissioner of the General Land Office.
Land Oeeioe, WashiNG-ton, Arkansas, ) Deoerriber 19th, 1851. j
No. 6845.
"We, Maria Gaines, wife of William H. Gaines, late Maria Belding, Albert Belding, Henry Belding, and George Belding, heirs and legal representatives of Ludovicus Belding, deceased, of Hot Spring county, Arkansas, do hereby apply to purchase the South-west quarter of section thirty-three (33), in township two (2) South, of range nineteen (19) West, containing one hundred and sixty (160) acres, for which we have agreed, with the Register, acting underTnstructions from the Commissioner of the General Land Office, bearing date tbe 25tb of November, 1851, to give at tbe rates of one dollar and twenty-five cents per acre.
A. BENDING,
MANIA GAINES.
HENRY BENDING.
GEORGE BENDING.
I, William II. Etter, Register of tbe Land Office, at Washington, Arkansas, do hereby certify, that tbe tract above mentioned, is sold, as containing one hundred and sixty acres, as mentioned above, and tbe price agreed upon, is one dollar and twenty-five cents per acre. ,
WM. H. ETTER, Register.
Note- — In accordance with instructions, I note tbe interference of this entry, with the New Madrid location of Langloise of its embracing land, directed to be reserved by act of 20th of April, 1832, and that the entry is permitted to be made, under the decision of the Secretary of the Interior, of the 21st of November, 1851, transmitted to this office, by the Commissioner of the General Land Office, under date of the 25th of November, 1851.
WM. TI. -ETTER, Register.
REGISTER’S OeEIOE,' WASHINGTON, ArK., ) Janua/ry 19 th, 1853. f
I, William II. Etter, Register of the Land Office, at Washington, Arkansas, do hereby certify, that the foregoing pages contain a true copy of the letters received from the Commissioner of the General Land Office, the application filed, and the annotation on the tract book in this office, under said instructions.
WILLIAM II. ETTER, Register.

To the introduction of which, the defendant objected, and the court sustained the objection, and refused to permit the same, or any part thereof, to be read in evidence.

This was the only evidence of title, offered by the plaintiffs. They offered, however, to make proof of the locality of the land; that defendant was in possession at the commencement of the suit; and that plaintiffs were the children, and only heirs at law, of Ludovicus Belding, deceased, which the court refused to permit them to do. Exceptions were taken; and, after verdict and judgment for the defendant, the plaintiffs appealed.

The whole question at issue, turns upon the admissibility of the certificate of entry, made with the Register and Receiver of the Land Office, at Washington, Arkansas.

Our statute, {Digest, eh. 60, see. 2,) provides, that the action of ejectment may be maintained, in all cases, where the plaintiff claims the possession of the premises, by virtue of; first, an entry made with the Register and Receiver of the proper Land Office, of the United States; Second, a pre-emption under the laws of the United States; Third, when an improvement has been made by him, on any of the public lands of the United States, whether the lands have been surveyed or not, and where any person, other than those to whom the right of action is given by the preceding clauses of this section, is in possession of such improvement.

See. 11. “To entitle the plaintiff to recover, it shall be sufficient for him to show, that at the time of the commencement of the action, the defendant was in possession of the premises, and that the plaintiff had title thereto, or, had the right to the possession thereof, as is declared by this act to be sufficient to maintain the action of ejectment.”

The plaintiffs in this case, claim title to the premises, under the first clause of the second section, which gives a right of action to any one, who has made an entry of the land with the Register and Receiver of the proper Land Office.

To sustain the issue on their part, the plaintiffs offered a duly certified transcript of the certificates of entry, and payment of the purchase money, under the official certificate of the Register.

This evidence was, upon motion of the defendant, excluded from the jury, soielyuponthe ground, that under the circumstances of the case, the entry was void. If it was void, then it was evidence of nothing, and was, of course, properly rejected; if not, then under the statute it was admissible, even though erroneously made.

The objection taken by the defendant, rests upon two prominent grounds: First, That the entry was made before the Register and Receiver, who had decided against the validity of the claim, upon the arbitrary and unauthorized direction of the Commissioner of the General Land Office, in obedience to instructions from the Secretary of the Interior. And Second, That after the expiration of the pre-emption act of the 29th May, 1830, and before its provisions were extended by the act of the 14th of July, 1832, to that class of settlers on the public lands, who were entitled to pre-emptions uuder the act of 29th of May, 1830, but were prevented from availing themselves of the benefit of the act, because the land had not been surveyed, and the plats returned into the proper office, before the act expired by limitation. That this particular tract of land was, by the act of Congress of the 20th of April, 1832, expressly reserved from entry or sale; and that, therefore, any sale or disposition of it, attempted to be made by the land officers, was void.

The application to enter the land was made within one year next after the plats were returned into the office, and the Register and Receiver, upon due consideration of the evidence adduced before them, decided, that it was sufficient to establish the fact of cultivation in 1829, and actual residence on the land on the 29th of May, 1830; but refused to allow Belding’s heirs a preemption, because it appeared to them, that Belding occupied and cultivated the land, as a tenant; and we may presume, from the letter of the Commissioner to the Register and Receiver, of 25th November, 1851, that they, at the same time that they rejected the claim of Belding’s heirs, decided in favor of that of John Percifull, another pre-emption claimant to the land, and submitted their decision to the Commissioner of the General Land Office, who referred the matter to the Secretary of the Interior, for his action touching, the reservation of the land, by the act of Congress of the 20th April, 1832. Without deciding that question, the papers were sent back to the Commissioner lor his decision upon the respective merits of the pre-emption claims, irrespective of the question of the reservation of the land from sale. The Commissioner decided adversely to the claim of Percifull, and in favor of that of Belding’s heirs, concurring in opinion, with the Land Officers, at Washington, Arkansas, as to the sufficiency of the proof of cultivation and residence, and holding that the question of tenancy did not affect their right to a pre-emption. This decision was certified to the Secretary of the Interior, who decided that, notwithstanding the sufficiency of the proof, to entitle Belding’s heirs to a pre-emption, none of the claims to this land were valid, because it was exempt from sale, by virtue of the act of Congress of the 20th of April, 1832.

Subsequently, upon the application of the attorney for Bel-ding’s heirs, the Secretary of the Interior directed the Commissioner to permit Belding’s heirs to enter the land, under their pre-emption, they desiring to do so, in order to place themselves in a position to assert their right to the land, in the courts. This, the Commissioner directed to be done, and that it should be noted upon the books of the office; and, also, upon the certificates of entry, that such entry interfered with the New Madrid location of Francis Langloise, and embraced lands, directed to be reserved from sale, under the act of the 20th April. And the land was accordingly entered, on the 19th of December, 1852, at which time, certificates in the usual form issued, with notes of such interference.

Under this state of case, we have no doubt but that there was a sufficient adjudication of the claim of Belding’s heirs, to authorize the instructions given by the Commissioner of the General Land Office, to the officers at Washington, Arkansas. The claim had been favorably adjudicated by the Land Officers in the first instance, so far as cultivation and subsequent actual residence were necessary to entitle them to a pre-emption; and, the only point of difficult)-, with them, was, that Belding -was, at¿ the time, a tenant. This was held to be no valid objection to the claim, by the Commissioner, who, at the same time, decided adversely to the claim of Percifnll. Suppose, then, that the act of the 20th of April, bail not raised other grounds of objection, it is very evident that the Commissioner would, at once, have instructed the Register and Receiver to allow the claim, and that, without further proof, they would have done so, unless the claim of Langloise had prevented, (which, however, seems not to have been considered in connexion with those of the pre-emption claimants). Such orders and directions are not to be considered as being unauthorized. On the contrary, when the act directed to be done, is such as the officer,, so directed, may be required, by virtue of his office, under the law, to perform, it is but an ordinary and proper exercise of power, for the officers at the head of the Department to advise and direct its subordinate officers, in respect to the performance of their official duties. The direction may be unwise, but when obeyed, the act done, is not, for that reason, the less obligatory. In this case, it is true, that there is but little apparent necessity for placing one of the claimants in a position to contest at law, with the others, the merits of their respective claims, if all that could result from it would be to determine the merits of the claims; because, that had already been settled, and the only point of difficulty was, as to the effect of the act of 20th April, upon the claims; not upon one, but upon all the claims.

It is, therefore, but fair to jn-esume, that when the Secretary granted the request of Belding’s heirs, to permit them to enter the land, so that they might be placed in a situation to contest with other claimants, their right to it, he supposed that in doing so, the proper construction to be given to the act of the 20th of April, would be involved in the controversy, and settled by the courts. And that when this was done, with the aid of the decision of the court upon the law, and a fuller investigation of the merits of the respective claims to the land, the department would proceed to affirm the entry of Belding’s heirs, grant the right of entry to some more meritorious claimant, or adhere to its previously expressed opinion, and reject them all.

For this purpose, it was necessary that the entry should be complete and perfect, to communicate title to i?he heirs of Bel-ding. And this is evident, from the letter of the Secretary, in the concluding part of which he said: “ Said entry will remain subject to the same power of revision and control by the General Land Office, and this Department, as may be lawfully exercised over any ordinary entry.” Thus expressly putting this upon the same footing of an ordinary entry, announcing, in advance, the right to withhold a patent, which could as well have been done without, as with such announcement. And the note directed to be made of the interfering claims, and also .of the law, shows that it was intended only to identify this, as the contested claim, and the ground xvpon which the contest rested. But in no respect could it change the legal effect of the entry when made. We must, therefore hold that the first ground of objection to the validity of the entry, is not well-taken.

The second and main ground of objection to the validity of the entry, is, that the particular tract of land entered, was, by a special act of Congress, reserved from sale or entry; and was, therefore, withdrawn from the jurisdiction or power of disposal, of the Land Officers, as completely as if the land had been beyond the limits of the district, for which they are commissioned to act, or as if, by a sale of the land, it had become private property.

Conceding to Congress the most unqualified power to dispose of the public unappropriated lands, or to reserve them from sale, and admitting it to be true, as contended for by the defendant, that when such is the case, a sale of the land would be void, which would seem to be questionable, unless in a case where the United States was a party, which is, perhaps, the greatest extent to which the decision in Wilcox vs. Jackson, 13 Peters 498, would go, still, when the claim, which is asserted to the lands, goes behind the act reserving it from sale, it becomes a question of fact to determine, whether the land, at the time of the reservation, was or not incumbered with these existing rights, which the Land Officers must necessarily consider and determine, in allowing or refusing to recognize the validity of those lights, and being a matter within their legitimate power and jurisdiction, whether determined correctly or not, their decision is not void.

The decision in Wilcox vs. Jackson, was made upon a very different state of case from that before us. There, the land in dispute was reserved as a military post, as early as 1824, and was, at the time of the suit, in the actual possession of the United States, by one of its officers. The claim of the plaintiff was under the pre-emption act of 1834, ten years after the land had been reserved, and where there were no facts to he considered, tending to show a previous appropriation of the land.

The case of Lytle et al. vs. The State et al., 9th Howard U. S. Rep. 314, is decidedly in point, and the opinion is entitled to high consideration, from the fact, that the claim set up, by the complainant, originated under the same law that the plaintiff’s in this case did; and, also, under circumstances, in many respects, strikingly similar. In that case, Cloyes’ heirs claimed title to a fractional quarter section of land, adjoining the city of Little Hock, by virtue of a pre-emption, under the act of Congress of the 29th May, 1830. They made proof of their pre-emption, before the land officers, at the Lawrence Land District, which was by the Register and Receiver, deemed sufficient; and, thereupon, the claimant offered to pay for that, and some adjoining fractions, amounting in all, to less than 1G0 acres, but the land officers refused to receive the money. The plats, at that time, had not been returned to the office. By letter of instructions, dated 7th of February, 1831, proof was allowed to be taken of the cultivation and residence of the claimant, in case the plats had not been returned into the office : but no payments were allowed to be made until the' plats were so returned, or until further instructed. The plats were not returned into the office until the first of December, 1833.

On the 15th of June, 1832, Congress passed an act, granting to the Territory of Arkansas, one thousand acres of land, contiguous to, and adjoining the town of Little Kock, to be selected by the Governor. On the 30th of January, 1833, the Governor located this land, as part of the donation, granted the 15th of June, 1832. On the 5th March, 1834, Oloyes,” the pre-emptor, having died, his heirs were permitted to enter the land, by virtue of their preemption, under the act of 29th May, 1830, and the Deceiver was instructed to note the fact that the entry interfered with the location made by the Governor, under the grant of the 15th of June, 1832.

It will be perceived, that, in this case, as in that of Belding’s heirs, the act, which donated the land to the Territory, was passed after the act of 29th May had expired, and before the passage of the act of the 14th July, extending the time for making proof and entry of lands, to such claimants as were entitled to the benefits of the act of 29th of May, but had been prevented from making the proof and entry of the same, because the survey had not been made, and the plats returned in time for them to do so, before the act expired by limitation.

This, then, was not merely a reservation of lands from sale, but an actual donation of them to the Territory of Arkansas, and at a time when the act of 29th of May, had expired. Judge Mc-LeaN, who delivered the opinion of the court, in reference to this particular question, said: “Did the location of Gov. Pope, under the act of Congress, affect the clgim of Cloyes ? Before the grant was made by Congress, of this tract, the right of Cloyes to a preemption had not only accrued under the provision of the act 1830, but he had proven his right to the satisfaction of the Begister and Deceiver of the Land Office. He had, in fact, done everything he could to protect his rights: no fault or negligence can be charged to him.”

It is true, that in the case of Cloyes’ heirs, proof of the pre-emption ivas made before the act of 29th May expired, and the money was tendered. They were enabled to make the proof, and identify their claim, because the survey had been made, although the plats bad not been returned into tbe office, but by express instructions, tbe officers were forbid to receive tbe purchase money. So that, in fact, to make tbe proof, was all that they did, of ' merit, more than was done by Belding’s heirs, and they, or Belding, under whom they claim, could not properly identify the claim, because the surveys were then not made. Each of these claimants may, therefore, be said to have done nothing to forfeit their right to a pre-emption, at the time the act of 29th May expired, and both of them would have been cut-off from all the benefit of the act, but for the passage of the act of the 14th of July, 1832: which the Supreme Court, in the case of Lytle vs. This State, says: “Is a supplement to the act of 29th of May, and extended the benefit of that act to Cloves’ heirs.” The court, in that case, evidently rests the equitable rights of Cloyes’ heirs, upon the ground, that the act of the 29th of May conferred upon them rights, which they had not forfeited by neglect^on their part. "When commenting upon the nature of this right, the court says : “The claim of pre-emptor is not that shadowy right, which by some it is considered to be. Until sanctioned by law, it has no existence as a substantive right, but when covered by law, it becomes a legal right, subject to be defeated only by the failure to perform the condition annexed to it.”

Under this view of the nature of the claim, it became the duty of the Government of the United States, who conferred the right of pre-emption upon a meritorious class of citizens, pioneers in the unsettled Territory of the United States, to afford them an opportunity for making the necessary proof and paying for their lands; and, in compliance with this obligation, the act of the 14th July was passed, to give them an opportunity to avail themselves of the benefits of the act. The court says upon this subject, “that it is a vested right, which Congress is not to be presumed to have intended to impair.”

It is, however, unnecessary to discuss, at greater length, the effect of the act of the 14th July, upon that of May 29th, or of the act of 20th of April, upon the rights of Belding’s heirs, under these acts : Because, the question, which we are here to decide, is not whether Belding’s heirs were in fact entitled to a pre-emption, but whether under the state of case presented before the Register and Receiver, their action ivas, or not, extra-judicial and void. And in order to determine this, we have been led to enquire, whether the facts presented a question of doubt, as to existing rights, in the heirs of Belding, at the time the land vjas reserved from sale. That the facts of the case show it to be such, we are satisfied ; and, consequently, however erroneous their decision may be, under the instructions of the Commissioner of the General Land Office, their acts in obedience to it, are not void, nor can they be questioned, when brought up collaterally for consideration; unless, possibly, it may be done, in a proceeding between the United States and the claimant. Wilcox vs. Jackson; Hunter vs. Hemphill, 6 Mo. R. 118; Sarpy vs. Papin, 7 Mo. 506.

The certificates of entry, offered in evidence, were admitted to be genuine, and properly authenticated by the Register. ¥e have held, that they were not void. Whether granted upon sufficient evidence, or .what the effect of the act of 20th April is upon the merits of the claim, we are not now to determine. Under our statute the certificates of entry were legal, competent evidence of title in the plaintiffs, for the purpose of maintaining the action of ejectment. Nor was the certificate'of entry subject to be impeached by the introduction of evidence, tending to show that no pre-emption should have been allowed to them, or that there were other and better equitable titles to the land. These facts may well be shown in a suit in equity, upon a proper averment of facts, but nothing less than a superior legal title will avail, in a defence at law. This point is discussed in Bagnell vs. Broderick, 13 Peters R. 450, where an attempt was made to show a superior equity to the legal title held under a patent. The court said: “We are bound to presume, for the purposes of this action, that all previous steps had been taken by John Robinson, jr., to entitle him to the patent; and that he had the superior right to obtain it, notwithstanding the claim set up by Byrne, and having obtained tlie patent, Robinson bad tbe best title, known to a court of law. If Byrne’s devisees can show him to have been the true owner of the 750 arpens of land, relinquished because injured by earthquakes, and that the patent issued to John Robinson, jr., by mistake, then the equity side of the Circuit Court is the proper forum, and a bill the proper remedy to investigate the equities of the parties.”

This opinion sustains the conclusions, at which we have arrived in this case, which are, that although a certificate of entry is conclusive as against all persons who cannot show a better legal title, still it is competent for any one, having a superior equity, to set it up in a suit in equity, in which the validity of the claim, as well as the law, under which it is asserted, will be brought into review, and decided upon. Whether when, made, it will be conclusive upon the parties, we are not now called upon to decide, and prefer to confine our decision to the questions of law, legitimately presented upon the record.

The Circuit Court erred in excluding the plaintiffs’ evidence from the jury ; and, for this error, the judgment must be reversed, and the cause remanded for further proceedings therein, to be had "according to law, and not inconsistent with the opinion herein delivered.

Before Mr. Justices Scon' and Walker, and Hon. Thomas Johstsoit, Special Judge.

'Mr. Chief Justice English not sitting in this casé.


author: Mr. Justice Walkeb,

text:
    Burke vs. Gaines et al.
    For the questions involved and principles decided, see the preceding caso of Gaines al. vs. Hale.

      Appeal from the Circuit Cov/rt of Sot Bpring County.
    lion. J’oiiN C..Mubray, Circuit Judge.
    Puns & CuMMiNS, for tlie appellant.
    IVatbiNS & CubbaN, and TbapNAll, for appellees.
   Mr. Justice Walkeb,

delivered tlie opinion of tlie Court.

The plaintiffs brought ejectment to recover possession of lands, which they claimed to hold by virtue of an entry made under a right of pre-emption, granted by an act of Congress, approved 29th May, 1830. Upon the trial, the certificate of entry was offered in evidence, and permitted, by the court, to go to the jury over the objection of defendant. The other facts necessary to entitle the planitiffs to recover, were admitted by the defendant. The defendant then proposed to prove that there were adverse equitable claims, upon the same land; that the plaintiffs were not, in fact, entitled to a pre-emption, and that no adjudication was had by the Register and. Receiver, who permitted the entry to be made.

Por the purposes of the trial, the plaintiffs admitted the fact 1o.be true, but objected to the evidence as irrelevant and incompetent, under the issue in this case, and the objection was sustained and the evidence excluded. Several instructions were asked by the defendant to be given to the jury; the effect of which was to impeach the validity of the entry, upon the ground that it was void. Judgment was for the plaintiffs. The Circuit Court decided correctly, upon all of the questions of law arising upon the exceptions taken in the the case; according to the decision of this court, at the present term in the case of Gaines el al. vs. John C. Hale, in which tire same entry was considered, and held to be valid. And that evidence, such as was offered by the defendant in this case, was inadmissible in an action of ejectment, in which the plaintiff claims title under the certificate of entry, which, under our statute, is made sufficient evidence of title, to entitle the plaintiff to recover against any one who cannot show a superior legal title.

Such defence, if available to the defendants, must be made in equity, not at law. Let the judgment be affirmed.

Before Mr. Justices Scott and "WALKER, and Hon. ThoMAS Joi-iN-soN, Special Judge.

Mr. Chief Justice ENGLISH not sitting in this case.


author: Hon. TkoMAs JohNsoh, Special Judge,

text:
    Carmichael ad. vs. Saint.

    A duly certified transcript, fiom the record of a Prohate Court in a sister State, of the orders granting to the plaintiff as sheriff, letters of administration, and the certificate of the judge of such court, that such letters of administration had been granted to him> and that he was duly qualified and authorized to administer said estate, are sufficient prima, facie evidence of his representative character, without proof that he had taken an oath of office, or given an administration bond.

      Writ of Error to the Oirewt Ooxvrt of Phillips Oounty.

    Hon. Ciiaeles W. Adams, Circuit Judge.
    ENGlish, for the pi aintiff.
    Tbe statute requiring no formal pleading in tbe Probatef Court, tbe objection to tbe prayer of the petition, will be treated as having tbe legal effect of a plea of ne xm-ques administrator. Under such issue, tbe plaintiff’s title, as administrator, may be proved by the letters of administration, or by tbe original book of acts, which directs tbe grant of tbe letters, with tbe surrogate's fiat. 1 Sanders Plead, cmd Ev. 504 ; Elden ad. vs. Keddell, 8 East 187 ; 2 Stark. Ev. 145 ; 2 Phill. Ev. 361; Drnis vs. Williams, 13 East 232.
    The grant of letters of administration, or testamentary, is prima faeie evidence of a compliance with every pre-requisite, and matters in avoidance must be pleaded and proven by tbe party impeaching them. Diamond vs. Shell et al., 15 Ark.; Newton Ex. vs. Ooeke Ex., 5 Eng. 169; 1 Qreenl. Ev., see. 550, p. 662; 10 Pick. 515; 1 Binney's Pep. 63.

      This cause was argued and submitted at the July Term, A. D. 1854.

   Hon. TkoMAs JohNsoh, Special Judge,

delivered tbe opinion of tbe Court.

It appears, from tbe transcript sent into this court, that tbe defendant in the court below, waived all other objections to tbe proceeding, except tbe single one questioning tbe sufficiency of tbe authority of tbe plaintiff to maintain tbe suit. Tbe.evidence offered by tbe plaintiff, to establish bis right to sue .in this case, consists of a certified transcript from tbe record of tbe Probate Court of Madison county, in tbe State of Alabama, which exhibits orders of that court, granting letters of administration to him, as sheriff' of said county, upon tbe estate mentioned in bis petition; and, also, certificates of a judge of that court, that letters of administration bad been granted to tbe plaintiff, sheriff of said county, and that be was duly qualified as such, and authorized to administer said estate. These orders and certificates are then certified by another judge of the same court, who, it seems, was ew-officio clerk of the court, to be a true and perfect transcript of the record of the letters of administration granted to the plaintiff. The question now to be decided, and the only one raised by the record, is, whether the showing, made by the plaintiff, was sufficient to enable him to prosecute this suit. The 4th article of the constitution of the United States, sec. 1st, declares, that “Full faith and credit shall be given, in each State, to the public acts, records, and judicial proceedings of every other State, and that the Congress may, by general laws, prescribe the manner in which such acts, records, and proceedings, shall be proved, and the effect thereof.”

Congress, under the authority of this provision of the constitution, by an act of the 26th of May, 1790, enacted as follows, to wit: “The records and judicial proceedings of the courts of any State'shall be proved, or admitted in any other court within the United States, by the attestation of the clerk, and the seal of the court annexed, if there be a seal, together with a certificate of the judge, chief justice, or presiding magistrate, as the case may be, that the said attestation is in due form. And the said records and judicial proceedings, authenticated as aforesaid, shall have such faith and credit given to them, in every court within the United States, as they have by law or usage in the courts of the State from whence the said records are, or shall be taken.”

The transcript offered, in this case, to show the representative character of the plaintiff, and his right to prosecute this suit, is authenticated in strict accordance with the act of Congress, upon the subject; and is, consequently, entitled to the same faith and credit in this court, as it would have in the courts of Alabama. This being the case, it is clearly prima faaie evidence of the plaintiff’s right to sue; and, as such, fully sufficient, unless successfully attacked and avoided by legitimate matter of defence introduced by the defendant.

The court below refused to grant the prayer of the petition bled by tbe plaintiff, upon two grounds: Fvrst, that no oath of office had been shown; and, secondly, that no administration bond was made to appear. This court at the January Term, 1854, in the case of Diamond vs. Shell et al., held the followinglanguage, to wit: “If the testator’s appointment be confirmed, the person who is about to become executor, is required to make an affidavit, and enter into bond with security, which are to remain of record in the clerk’s office, and being thus qualified, liis appointment and authority to act are tobe completed by the issuance to him of letters testamentary, according to the form prescribed by the statute, and to which a copy of the will is annexed. Before the original letters are given out, it is made the duty of the clerk, under a penalty, to record them, and authenticated copies of them may be read in evidence in the same manner as the originals.” ITence, it is, that, after these successive steps, the executor always makes out a prima facie case of authority to sue, by producing the letters issued to him, or a certified copy of them. A copy of the will accompanies the letters, but as the granting of them pre-supposes the establishment of the will by the adjudication of the proper court, the proofs and examinations, which may have been taken in support of it, do not necessarily form any part of the letters. In like manner, we understand the intimation in Newton exr. vs. Cocke exr. (5 Eng. 176,) to be, that though the oath and bond áre essential to the executor’s right to act, they need not be produced or proven, when his authority is collaterally called in question, because the statute makes them pre-requisites to the final issuance of the letters, and it is not to be presumed that the Probate Court, to whom belongs the appointment and removal of executors, has been derelict in exercising its jurisdiction. Upon the same general principle it may be presumed, until the contrary be shown, that the laws of Alabama, under which these proceedings were had, have been complied with. True it is, that the paper offered as evidence of the plaintiff’s representative character, does not correspond inform with that prescribed by our statute, but it having been certified by the proper officer to be a true and perfect transcript of the record of the letters of administration, we are to presume that it is in accordance with the law of that State. "We entertain no doubt of the sufficiency of the proof to establish the plaintiff’s right to sue, and that consequently the court below erred in ruling’ otherwise.

The judgment of the Circuit Court of Phillips county, herein rendered, is consequently reversed, and the cause remanded, to be proceeded in, according to law, and not inconsistent with this opinion.

Before Mr. Justices Scott and Waleek, and lion. Thomas Joiik-soN, Special Judge.

Mr. Chief Justice Ehglish not sitting in this case.


author: Mr: Justice Scott

text:
    State, use of the State Bank vs. Collins, ad.
    An affidavit, by an officer of a corporation, in the form prescribed by the statute, omitting the words: “that the sum demanded is justly due,” is sufficient to authenticated claim against the estate of a deceased person.

      Writ of Error to the Cvrouit Gourt of PulasM County.

    Hon. WilltaM Ii. Eeild, Circuit Judge.
    S. Ii. Hempstead, for the plaintiff.
    The affidavit is a substantial compliance with the statute. When the debt is stated, and the further fact that all credits are given, to say that “the amount demanded is justly due,” is only stating a conclusion of law from facts already stated. Digest, 127.
   Mr: Justice Scott

delivered the opinion of the Court.

This was an action of debt, upon the official bond of Euclid L. Johnson, deceased, in which John Brown, and others were co-obligors, conditioned for the faithful performance of the duties of Bank Attorney. The declaration is in the usual form, setting out the bond, and conditions, and assigning ten specific breaches of the latter, in the receipt of divers sums of money on account of the Bank, and the failure to account for them to which is appended an affidavit, in the terms following, to wit:

“I, John M. Boss, Financial Receiver of the Bank of the State of Arkansas, do solemnly swear, that Ihave made diligent inquiry, and examination, and do verily believe that nothing has’been paid to the Bank, towards the satisfaction of the sums mentioned in the foregoing declaration, and that the sum with which Euclid L. Johnson, late Bank Attorney, stands charged on the books of the bank, amounts to two thousand seven hundred and sixteen dollars and nine cents. ($2,716 9.)
JOHN M. BOSS,
Financial Receiver.
Sworn to, and subscribed before me, this 28th April, 1852.
J. A. HUTCHINGS, J. P.

At the return term of the writ, the defendant filed a motion for a judgment of non-suit, against the plaintiff, on the ground, that the affidavit was insufficient, specifying that the insufficiency consisted in the failure of the affiant to state, “That the sum demanded is justly due,” and the court having allowed the motion, rendered a judgment of non-suit, from which the plaintiff below sued out a writ of error.

It is true, that the affidavit fails, to the extent of the words pointed out in the motion, to conform to the letter of the statute, in which a form is prescribed for affidavits, when made by an officer of a corporation, that is declared, “shall be sufficient;” (Digest, ch. 4, sec. 91,) but this court said, in the case of Beirne and Burnside vs. Imboden et al., admrs., 14 Ark. R. 244, where the whole subject is fully examined, that the form prescribed by the statute, was evidently but a general form applicable, in its precise terms, to debts at maturity, upon which there may be credits endorsed; and is, of course, to be often varied in its terms, so that the substance is preserved, to correspond with cases where the debt may not have matured; may have no credits; where the claim may sound in. damages; (Dig., p. 125, sec. 80,) be uncertain in amount, for want of the settlement of complicated accounts, sought by proceedings in court to be settled; in which latter cases, the party could only swear to the best of his knowledge and belief, to some specified amount of damages, oí balance due him.” And we cannot doubt but that that view was correctly taken, and in the spirit of this construction of the statute, which as to the form of the affidavits required, was but directory — we think the affidavit in question was sufficient.

Let the judgment be reversed, and the cause remanded to be proceeded with.


author: Mr. Justice Scott

text:
    Jones et al. vs. Gatlin.
    A party excepting to the finding of the court or jury, without a motion for new trial, must specify the error of law as to any ruling or decision of the court below. Slate Bank vs. Conway, 13 Ark. 344.

      Appeal from, the Gireidt Court of Oxiaehita County.

    Hon. Shelton "Watson, Circuit Judge.
    Stith, for appellants.
    Cunean & G-allaghee, contra.
   Mr. Justice Scott

delivered the opinion of tbe Court.

This cause having originated in a proceeding before a justice of the peace, for a recovery upon a promissory note, was taken, by appeal, to the Circuit Court of Ouachita county, where both parties having appeared, and by consent, submitted the case to the court sitting as a jury, there was a general finding for the plaintiff, and judgment rendered accordingly. Whereupon, the defendants tendered a bill of exceptions, setting out, that the plaintiff read the note in evidence and closed his case, and that then the defendant, upon the plea of no-consideration, introduced certain testimony, which is detailed ; and that after hearing the same, and the argument of counsel, the court, to whom the cause had been submitted, (neither party requiring a jury) found for the plaintiff: “to which finding and judgment therein, the defendant excepted.” And then, in the language of the bill of exceptions, “because'none of the said matters of exception to the opinion and decision of the said court, do appear upon the record of the said trial, therefore, &c.”

So explicit is this record, that there can be no doubt but that this case is entirely within the rule settled by this court after a review of the previous decisions upon the point, in the case of The State Bank vs. Conway, 13 Ark. R. 344; that where a party merely excepts to the finding of the court or jury, setting out the testimony, without any motion for a new trial, and without any exceptions, whereby he shall put his finger upon the alleged error of law as to any ruling or decision of the court below, there is no case presented for the consideration of this court on error or appeal.

This jndgmeut will, consequently, have to be affirmed, with costs.


text:
    McDonald et al. vs. Williams as ad.
    The cases of Hemphill vs. Hamilton, ad., 6 Eng. 425, and Anderson et al vs. Wilson, 13 Arh. 409, as to the right to sue in the representative or individual capacity, approved.

      Appeal from the Ci/rouit Court of Sebastian County.

    Hon. Felix J. BatsoN,,Circuit Judge.
    WalKee and GreeN, for appellants!
    PiKE & CuMMiNS, contra.
   Mr. Justice Scott

delivered the opinion of the Court.

This was an action of debt, by the appellee in his representative character, on two money bonds, made by the appellants, payable to Alfred Wallace, and by him assigned by a full endorsement to the appellee, as administrator of Benjamin L. Moore, deceased. To the declaration, in due form, ending with the ordinary profert of letters of administration, the defendant below interposed a demurrer; setting up for cause, that the cause of action in question, was in the individual, and not in the representative right of the appellee. The court overruled the demurrer, and the appellants saying nothing further, but electing to rest, judgment was rendered against them, for the debt and damages, and they appealed, entering into a recognizance to stay the execution.

The question raised by the demurrer, was settled by the court in the cases of Hemphill vs. Hamilton adr., &c., 6 Eng. R. 425, and Anderson et al., vs. Wilson, 13 Ark. 409.

The judgment must be affirmed, and five per cent, damages will be awarded on the amount of debts, and damages adjudged in the court below.