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

text:
    Williams v. Arkansas County Courthouse Improvement District.
    Opinion delivered May 8, 1922.
    1. Improvement districts — question for jury. — The question of •what constitutes a local improvement for assessment purposes is determined by the nature and character of the improvement itself.
    2. Improvement districts — public purpose. — A local improvement for assessment purposes must be for a public purpose, and not for a mere private purpose.
    3. Improvement district — benefit to property assessed. — Local assessments are a species of taxation, and there must be some special or peculiar benefit to the property on which the assessment of benefit is made.
    4. Improvement districts — benefit to property assessed. — The fact that the improvement will benefit adjoining property more than property at a distance is not conclusive as to whether the improvement is a local improvement for purposes of assessment.
    5. Improvement districts — purpose of improvement. — The primary purpose and effect of a local improvement must be to benefit the adjoining property, although it may incidentally benefit the public.
    6. Counties — statute creating courthouse improvement district. —Sp. Acts 1921, p. 914, creating an improvement district for constructing a courthouse at Stuttgart, and providing for assessment of benefits for purposes thereof, is unconstitutional, as the construction of a county courthouse does not constitute a public improvement.

      Appeal from Arkansas Chancery Court, Northern District; John M. Elliott, Chancellor;
    reversed.

      J. E. Bay, for appellants.
    Act 442 is unconstitutional in that it gives immunity from taxation to the people of the 'Southern District by creating no lien on their property, for an undertaking which is strictly a county purpose. Art. 2, see. 18, Const. The act' also is in violation of art. 1, sec. 10, because it impairs the obligation of contracts, in that it provides for a first lien on the property of the Northern District, whereas such a lien was created by Acts 1919, vol. 1, p. 1071, creating a road district. See also 102 U. S. 203. The act is also in violation of art. 26, sec. 6, Constitution, in that there is no uniformity of taxation in the two districts. 57 Ark. 555; 48 Ark. 370. It violates art. 7, sec. 30, because it usurps the jurisdiction of the county court; and tart. 12, sec. 5, because it makes the county loan its credit to an improvement district; and further it invades the jurisdiction of the county court. 92 Ark. 53.

      John L. Ingram, Frauenthal S Johnson, for appellees.
    The lands of the district are especially benefited and enhanced in value and are the subject of an improvement district for the'purpose mentioned. The creation of the district by the Legislature was within its province. 71 Ark. 478; 80 Ark. 333; 141 Ark. 612; 81 Ark. 562; 103 Ark. 127; 107 Ark. 285; 146 Ark. 288; 147 Ark. 112.
    The act does not invade the jurisdiction of the county court. 104 Ark. 425; 145 Ark. 279; 138 Ark. 549; 139 Ark. 153; Id. 595; 142 Ark. 73; Id. 439; 143 Ark. 228; 144 Ark. 632.
    The legislative determination of an improvement as a local one is conclusive, unless arbitrary and unfounded in reason, and is not subject to judicial interference if there is only a difference of opinion as to the wisdom or expediency of making the improvement. 130 Ark. 507; 131 Ark. 59. See also 23 A. S. E. 742; 50 Mich. 7; 147 Ind. 476 and cases cited; 153 Ind. 204; 19 Pa. 258.
   Hart, J.

B. L. Williams and other owners of real property in the Northern District of Arkansas County, Ark., filed their complaint against the board of commissioners of Arkansas County Courthouse Improvement District to restrain the issue of bonds and other action providing for the erection of a courthouse at Stuggart, m said district and county, and the payment thereof by local assessments on the real property in said district.

The complainants urge that the district is illegal on several grounds, 'but the main reliance is that the erection of a county courthouse cannot be made the subject of a local improvement.

The chancery court sustained a demurrer to the bill. The plaintiffs declining to plead further, their bill was dismissed for want of equity, and they have appealed to this court.

Arkansas County was divided into two judicial districts known as the Northern and Southern Districts of Arkansas County. DeWitt was the county seat of the county and was named as the seat of justice for the Southern District. Stuttgart was named as the seat of justice for the Northern District. Acts of 1913, p. 192.

Act 442 of the Legislature of 1921 creates the Arkansas County Courthouse Improvement District. Special Acts of Arkansas, 1921, p. 914.

Sec. 3 provides that the district is formed for the purpose of purchasing a building site and constructing and equipping a building in the city of Stuttgart to be occupied by the officials of Arkansas County as a county courthouse.

Sec. 12 provides that the commissioners shall make an assessment of benefits of all the lands within the Northern District of Arkansas County for the purpose of making said improvement.

Sec. 14 provides that said assessment shall be a charge against the real property of said district for such an amount as may be necessary to complete the improvement and pay all the expenses of the district.

Sec. 21 provides that in order to hasten the work the commissioners may borrow money, issue bonds, and pledge the assessment of benefits for the payment of the principal and interest.

■Sec. 29 authorizes the commissioners and the county judge to enter into an agreement for the use and occupancy of the building by county officials. It provides that such rental shall not exceed two 'mills per annum of the assessed value of all the real and personal property in the county. The section further provides for setting aside two mills out of the county general tax for the payment of said rent, and that such tax shall be payable only in lawful money of the United States.

Under the act, the question arises whether the Northern District of Arkansas County can be organized into an improvement district for the purpose of erecting a courthouse for the use of said district.

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 wharfs. Sallee v. Dalton, 138 Ark. 549, and cases cited; Shibley v. Ft. Smith & Van Buren District, 96 Ark. 410; Com’rs. of Broadway-Main Street Bridge Dist. v. Quapaw Club, 145 Ark, 279, and Solomon v. Wharf Imp. Dist. No. 1, 145 Ark. 126.

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 wharfs 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.

The definition in Crane v. Siloam Springs, 67 Ark. 30, is, “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.”

The nature and character of the improvement in question shows that it is not a local improvement within the definition above given. This court has held that a county may be divided into judicial districts, but that the expense of maintaining two judicial districts in a county is necessarily a county expense, and that the revenue to pay it can be raised only by a county tax. The court further said that such a tax to be valid must be levied at a uniform rate upon all the taxable property of the county. Hutchinson v. Ozark Land Co., 57 Ark. 554.

Again, the 'court said that all the affairs of the two districts are concerns of the county, and that the expenses incurred in both, whether in the holding of courts or otherwise, constitute demands against the county. So it was held that the expense of maintaining two judicial districts in a county is a county expense.

Carrying out this idea in the case of Law v. Falls, 109 Ark. 395, the court held that, a seat of justice having been established at Dardanelle and the courthouse having been destroyed by fire, the county court had the authority to direct the erection of a new building for the use of the courts of the district.

The Legislature of 1913 made the city of Stuttgart the seat of justice for the Northern District of Arkansas County. If the expense of holding the courts and otherwise maintaining two judicial districts in a county is a county expense, it would seem that it necessarily follows that the erection of a courthouse for the use of such district would also be a county expense. Of course the establishment of a seat of justice in a certain town adds to the material prosperity of the town and the surrounding country. This fact arises, however, because the seat of justice is established there and the kind and character of building to be used as a courthouse only incidentally adds to the value of the real property in the surrounding country. The establishment of a seat of justice is a governmental purpose, and the erection of a courthouse within which to carry it on also partakes of the same character. :

' In the case of building roads, bridges and wharfs, the primary object to be accomplished is the benefit of the adjoining property, and the benefit to the public is merely incidental. The establishment of a seat of justice and the erection of a courthouse within which to carry on governmental functions is essentially different. The primary object to be accomplished is to carry on the county government for the protection of the life, liberty, and property of the inhabitants, and the benefit to the property owners is merely incidental. Therefore the- expense must be borne by the whole public and cannot be charged against the real property of a portion thereof.

In discussing what may be a local improvement in Crame v. Siloam Springs, 67 Ark. 30, Judge Riddick, speaking for the court, said: “In coming to this conclusion, we do not overlook or disregard the word ‘local’ in the phrase ‘local improvements.’ On the contrary, we attach much importance to it. The use of this phrase limits the power to authorize assessments in cities and towns to those public improvements-which are local in their nature, and intended for the convenience and accommodation of the local public, or some portion thereof, and which confer a special benefit upon the real property assessed. It distinguishes such improvements from those that are not local, but intended for the benefit of the general public. Not every improvement in a town or city is a local improvement. A county courthouse or capitol. for the State might be an improvement in a town or city, and in some eases a very desirable improvement, but, being designed and intended for the use and convenience of the general public of the county or State, it would not be a ‘local improvement,’ within the meaning of our Constitution; or, if such a structure could in any sense be considered a local improvement, it would not be to the full extent of the cost. A town or city hall would probably come within the same category, for, while intended for the convenience of the local community, it would not usually be an improvement of such a nature as to confer a special benefit upon local real'estate or the owners thereof, and therefore not a local improvement within the meaning of the law. A consideration of these and other illustrations which could be made, we think, clearly shows the meaning and purpose of the phrase ‘local improvements’ as used in our Constitution.”

It is true.that the precise question in that case was whether the whole area of a city could be laid off into' an improvement district for the purpose of constructing and maintaining a general system of waterworks. The court held that this could be done, and the language just quoted was pertinent to a discussion of that question. It shows that the idea of the court was that where the primary purpose and effect is to benefit the public it is not a local improvement, although it may incidentally benefit property in a particular locality.

On the other hand, if the primary object of the local improvement is for the use and benefit of the property owners in the proposed district, it is a local improvement, although the public may be incidentally benefited. In the 'ease of roads, bridges and wharfs the idea of first importance is to benefit the property included in the proposed district, and the district is not formed for the purpose of benefiting the public.

On the other hand, in the case of the erection of a courthouse the idea of paramount importance is to provide offices for the county officers, a place for the public records to be kept, and where the courts may be held. Therefore, we think that the act creating the improvement district in question for the purpose of erecting a county courthouse is unconstitutional, and that the property owners might enjoin the assessment and collection of the tax against their real estate under its provisions.

It follows that the decree will be reversed and the cause will be remanded, with directions to the chancery court to overrule the demurrer and grant the injunction prayed for in the complaint.

McCulloch, C. J.,

(dissenting.) But for the language quoted by the majority from the opinion delivered by Judge Riddick in Crane v. Siloam Springs, 67 Ark. 30, the question involved in the .present case would give me little pause in reaching a conclusion contrary to the views expressed by the majority. As much, however, as I hold in respect the great ability of the learned judge from whom the majority have quoted, I feel compelled to characterize the language as mere dicta and unnecessary to the decision of the case then in hand; and, as I think it was clearly erroneous, I do not feel bound to follow it.

The question in that case was narrowed to the power to create an improvement district coextensive with the boundaries of a municipality. It was held (correctly, I think) that there was nothing in the Constitution which, either expressly or impliedly, restricted the creation of improvement districts inside of municipalities to territory less in extent than the municipality itself.

The language quoted from Judge Riddick's opinion was used as a mere illustration in determining whether or not the construction and establishment of a system of waterworks could be made the subject of a local improvement district. It was contended in that case that, because the district comprised the whole of the territorial limits of the municipality, the improvement was necessarily general in its nature and not local, but the court held to the contrary. The fallacy of 'the argument appears clear when we see the intimation in the opinion that because the statute authorizes the municipality itself to construct waterworks, the improvement would necessarily be general in its nature so as to exclude the power to create an an improvement district, except for the fact that the statute itself, in express terms, authorized the creation of that kind of improvement through the agency of a local improvement district.

That argument is obviously unsound, for it has never been considered in our decisions as a test of power in the creation of local improvement districts whether or not legal authority to make the improvement exists in the county or municipality in which the district is created. On the contrary, exclusive authority over roads and bridges is conferred upon the county court, and yet we have repeatedly held that, notwithstanding that fact, such improvement may be the subject of a local improvement.

In testing the question whether or not a given improvement is local or general, we have never been controlled by the fact that the authority to make such improvement is, or is not, vested in the county or municipality, and we have steadily adhered to the rule that, even though the improvement is general in its nature, if adjacent property receives special and peculiar benefits therefrom, it may be treated as a local improvement to that extent. The correct rule is, I think, stated in the case of Shibley v. Fort Smith & Van Buren Bridge District, 96 Ark. 410, as follows:

“Whilst it may be true that the benefits which flow from almost all local improvements, which are usually authorized to be constructed at the expense of local property-owners — street pavements, sewers, public parks, waterworks, in cities and towns, levees bnilt for the protection of overflowed lands — all inure bo the benefit of the general public to a greater or less extent, yet it is not true that a bridge, any less than improvements of the other kinds mentioned above, does not produce special benefits to adjoining lands so as to justify special assessments to defray the expenses of such improvements. A bridge for the use of the public, like a street in a city or a highway in the country, is undoubtedly of great benefit and convenience to the traveling public; nevertheless, it may be also of special benefit to adjoining lands and a fit subject for construction from the proceeds of local assessments. It is settled that improvement districts ‘are based and sustainable only upon the theory that the local assessments levied to sustain them are imposed upon the property of persons who are specially and peculiarly benefited in the enhancement of the value of their property by the expenditure of the money collected on the assessment.’ ******* Note the words, ‘specially and peculiarly benefited. ’ The benefits need not be exclusive. The general public may also derive benefits in more remote degree, yet, if there is a special and peculiar benefit inuring to the adjoining property, local assessments aré justified. ’ ’

The above was quoted with approval .by this court in the recent case of Solomon v. Wharf Improvement Dist. No. 1, 145 Ark. 126, where we held that a floating wharf at the landing, on the Mississippi River,- in the city of Helena, with the necessary approaches, warehouses, a loading barge and freight handling and loading machinery, was a local improvement within the meaning of the Constitution.

I can see no reason why a courthouse or any other public building may not be the subject of a local improvement, if, under the circumstances, a “special and peculiar benefit” inures to the adjoining property, even though it is a public building, and the general public also derives a benefit from its construction and maintenance. The fact that the improvement is public and open to thé use of the public does not prevent its being a local improvement, for all local improvements are of a public nature, like roads, bridges, parks, etc. The county-site is located by public authority, and of course the location of the site itself could not be controlled by an improvement district any more than the opening of a public road could be so controlled. But when the county-site is located under proper legal authority, the building of the courthouse may be a local improvement, just like a public road is improved after it has been laid out and established by the county court. The character of the building gives permanency and value to the location of the county-site, and thus the benefit to adjacent property is, to a great extent, enhanced. For this reason there accrues to the adjacent property a special and peculiar benefit.

Where the improvement district has been created by legislative authority, we should indulge the presumption that the facts have been ascertained and that it was found that special benefits would accrue. Courts should respect the legislative determination of the character of the improvement, unless the determination was arbitrarily and demonstrably erroneous. Bennett v. Johnson, 130 Ark. 507.

The following appropriate language is found in the opinion of the Supreme Court of Michigan in the case of Callam v. Saginaw, 50 Mich. 7:

“No one doubts the fact that the existence and occupation of good public buildings in a municipality is profitable and directly advantageous to it by making it a more important business and social center, and by stimulating private improvements which add directly to its revenues. ’ ’

■So it is that the construction of a handsome and pretentious public building at Stuttgart will confer peculiar benefits upon the real property inside of the district, at least the Legislature so determined, and we should respeot that determination.

My conclusion, therefore, is that the creation of the district was valid and should be upheld.


source: Caselaw Access Project

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

license: Public Domain

text:
    Harper v. Brooksher.
    Opinion delivered May 8, 1922.
    1. Constitutional law — road tax — dub process. — Acts Special Session 1920, No. 328, imposing a road tax in a certain district on persons between the ages of 21 and 45 years, without privilege of doing road work in lieu thereof, under Crawford & Moses’ Dig., §§ 5314-5, held not to deprive persons of property without due process of law, in violation of the Fourteenth Amendment.
    2. Constitutional law — special act. — Special act of 1920, No. 328, imposing a road tax on persons between 21 and 45 years within a certain district, without the privilege of doing road work in lieu thereof, under Crawford & Moses’ Dig., §§ 5314-5, held not to violate Const., art. 5, § 25, providing that no special' act shall be passed where a general law can be made applicable; the question of whether a general law can be made applicable being a legislative and not a judicial question.
    3. Constitutional law — equal privileges. — Special act of 1920, No. 328, imposing a road tax in a certain district on persons between the ages of 21 and 45 years, without privilege of doing work in lieu thereof under Crawford & Moses’ Dig., §§ 5314-5, held not to confer any privileges or immunities upon any citizens or class of citizens which do not upon the same terms equally apply to all citizens, in violation of State Const., art. 2, § 18, and Const. U. S., Amendment 14.
    4. Highways — validity op tax. — Special act 1920, No. 328, imposing a road tax of $4 in a certain district on persons between 21 and 45 years old, without privilege of doing road work in lieu thereof, does not violate Const. Ark., Amendment 3, limiting the taxes which may be levied for road purposes to three mills, nor does it violate the equal and uniform requirement of such Constitution requiring the basis of taxation to be equal and uniform throughout the State.
    Appeal from Sebastian Chancery Court, Fort Smith District; J. V. Bourland, Chancellor;
    reversed.

      J. Sam Wood and Fadjo Cravens, for appellant.
    Section 25, art. 5 of the Constitution is merely cautionary, and the Legislature is the judge as to whether,a general law can he made applicable.
    The act in question does not confer privileges or immunities on any -citizen or class of citizens which do not equally belong to all citizens -residing in the- district, and is therefore not violative of sec. 18, art. 2 of the Constitution. The Fort Smith District of Sebastian County is not a person within -the meaning of -the Constitution. 103 Ark. 127. Neither does it violate the uniformity clause of sec. 5, art. 16 of the Constitution. 37 Cyc. 731.

      A. A. McDonald, for appellee.
    The act is unconstitutional 'because a general law could be made applicable.
    The act is void because the tax is- not uniform throughout the State.
    It violates sec. 18, art. 2 of the Constitution, by granting to a class of citizens privileges or immunities which -are not upon the same terms granted to all other citizens. 117 Ark. 54; 110 Ark. 204.
   Smith, J.

Appellee brought this suit against the collector of Sebastian County to restrain that officer from collecting the road tax of $4 assessed against appellee and all other male persons between the ages of 21 and 45 living in the Fort Smith District of Sebastian county pursuant to a special act of the General Assembly approved February 25, 1920, entitled “An act to fix the road tax in Fort Smith District of Sebastian County, Arkansas, and for other purposes.” (Special Act No. 328, Special Session 1920). Appellee alleged in his complaint that the act was unconstitutional and void; and it was so declared by the court below on hearing a demurrer thereto, and the collection of the tax was enjoined, and this appeal is prosecuted to review that action.

The act is as follows: ‘ ‘ Section 1. Free labor on the public highways as now provided by law, whereby all male persons between the ages of twenty-one and forty-five years are required to work four days per annum, with alternative of paying four dollars ($4), shall be and the same is hereby abolished. And all male persons between the ages of twenty-one and forty-five, in the Fort Smith District of Sebastian County, of Arkansas, shall hereafter annually pay an individual road tax of $4. Provided, that seventy-five per cent, of the fund's collected under this act in the city of Fort Smith, Sebastian County, Arkansas, shall go to said city of Fort Smith.” Section 2 provides for the extension of the tax by the county clerk and its collection by the collector, and contains the proviso that the act shall apply to the Fort Smith District of Sebastian County only.

It does not appear from the record before us upon what ground the act was declared unconstitutional; but it is alleged to be unconstitutional for the following reasons : That it violates the Fourteenth Amendment to the Constitution of the United States, which provides that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” That it violates section 5 of article 16 of the Constitution of this State, which provides that the 'basis of taxation in this State shall be equal and uniform throughout the State.- That it is violative of section 21 of article 2 of the Constitution, which provides that “no person shall be taken or imprisoned, or disseized of his estate, freehold, liberties or privileges; or outlawed, or in any manner destroyed or deprived of his life, liberty or property, except by the judgment óf his peers or ■the law of the land. ’ ’ That it violates section 25 of article 5, which provides that “in all cases where a general law can be made applicable no special law shall be enacted.” That it is void because it contravenes a general statute of the State which permits citizens between the ages of 21 and 45 years to either work upon the public highways or to pay, in lieu thereof, the sum of $1 for each day’s labor; whereas the act in question deprives the citizens of the Fort Smith District of Sebastian County of the option to work, and requires them to pay money instead. It is also alleged that the act violates section 18 of article 2 of the Constitution of the State, which provides that ‘ ‘ the Geperal Assembly shall not grant to any citizen or class of citizens privileges or immunities which upon the same terms shall not equally belong to all citizens.” And it is finally alleged that the act is violative of Amendment No. 3 to the Constitution of the State, in that said amendment limits to three mills the taxes which may be levied for1 road purposes, and the $4 is an imposition in excess of that allowed by this amendment to the Constitution.

We think the act under review does not offend against any of the provisions of the Constitution of this State or of the United States.

This court has consistently and repeatedly held that the provision of section 25 of article 5 of the Constitution, providing that no special act shall be passed where a general law can be made applicable, is addressed to the General Assembly, and that the determination of that fact is legislative, and not judicial. ,

We think the act does not confer any privileges or immunities upon any citizen or class of citizens which do not, upon the same terms, equally apply to all citizens. All persons affected 'by the act at all are affected by it in like manner. Caraway v. State, 143 Ark. 48.

The act does not violate the third amendment to the Constitution; nor does it violate the provisions of the Constitution requiring uniformity in levying taxes. In a strict sense it is not a tax, although it is popularly spoken of as such. It is rather an exercise of the State’s police power.

It has always been the policy of this State to exercise its police power in the matter of working public roads. Indeed, such legislation goes back to the earliest territorial days. Territorial legislation required all free male inhabitants between the ages of 16 and 45, and all'male slaves of the same age, to work on public roads; and there appears to have been no provision for the payment of money, except by way of penalty for failure to work, and this penalty was recovered, by action of debt brought in the name of the overseer. Section 4 of the act approved November 16, 1833, Acts 1833, page 62. But this was not the earliest legislation on the subject. The General Assembly of 1836, which was the first to convene after the admission of the State into the Union, enacted what was then probably regarded as a comprehensive act on the subject of roads and highways. Acts 1836, page 186. This act made all free white male inhabitants between the ages of 16 and 45, except such persons as were exempt from militia duty, and all male slaves of the same age, subject to work on public roads; and the act appears to have contemplated that all persons subject to its provisions would discharge the burden imposed by it by working; and the provisions in regard to payment of money relate only to those who failed to work, against all of whom a forfeit of $2 for each day they failed to work was imposed, to be recovered in an faction of debt in the name of the overseer, who was made a sufficient witness to establish such delinquency.

The only provision of this act which appears to provide for the commutation of labor is section 8, which provides that the overseer of every road district is authorized to commute personal labor for wagons, teams or any necessary implements which may be required on the roads.

There has been much legislation in regard to working and improving public roads, but it is unnecessary here to trace the history of our legislation on the subject. It suffices to say that at the present time the general statute on the subject makes all male persons between the ages of 18 and 45 subject to work on any public highways within the respective townships in which they reside. Section 5314 C. & M. Digest.

Section 5315, C. & M. Digest, provides that, when a road tax shall have been voted by the electors of any county, in addition thereto male persons between the ages of 21 and 45 shall be required to work not exceeding four days, with the option of paying $1 for each day he is lawfully warned to work.

As has been said, this and similar legislation is older than the State itself, and our attention has not oeen called to any decision in which the validity of the legislation has heretofore been questioned.

Such legislation finds its origin, so far as we are concerned, in the earliest history of the common law. Blaekstone says: “Every parish is bound of common right to keep the highroads that go through it in good and sufficient repair; unless by reason of the tenure of lands, or otherwise, this care is consigned to some particular private person. From this burthen no man was exempt by our ancient laws, whatever other immunities he might enjoy; this being part of the trinoda necessitous, to which every man’s estate was subject; viz: eocpeditio contro hostem, orciwm constructio, ei pontiwm, reparatio.” Book 1, Blaekstone’s Commentaries, page 357.

It thus appears that the threefold obligation — from which no man was exempt by the ancient laws of England — were expedition against the enemy; the construction of arsenals; and the repairing of bridges; the necessities therefor being such that all men were required to discharge these three imperative duties.

The same great expounder of the common law also says: “In case the personal labor of the parish be not sufficient, the surveyors, with the consent of the quarter sessions, may levy a rate on the parish, in aid of the personal duty, not exceeding, in any one year, together with the other highway rates, the sum of 9d. in the pound; for the due application of which they are to account upon ',i’th.” Book 1, Blackstone’s Commentaries, page 359.

It thus appears that, while it was permissible at the common law both to require labor and to impose a tax, the tax was imposed in the event only that the personal labor of the parish was found not sufficient to maintain the roads.

In 1 Elliott on Roads and Streets (3rd Ed.) sec. 480, it is said: “Requiring persons to work on highways, even where they are partly kept up by taxation, is not double taxation, and statutes requiring such work are not unconstitutional. The theory is that requiring such labor is not taxation at all, but is the exaction of a public duty. The authorities are almost unanimous in upholding such statutes.”

In 13 R. C. L., section 141 of the article on Highways, it is said: “Statutes requiring male citizens or inhabitants of a specified age to labor without compensation on the public roads for a certain number of days each year, or pay a certain sum in money for each day’s labor thus required, and making it an indictable offense or a misdemeanor to refuse or fail after notice to comply with the requirements of the statute, are generally held to be constitutional and valid. Municipalities or quasi-municipalities have no power to require such labor in thp absence of legislative authority, but may do so when authorized by their charters or by general laws. According to the weight of authority, such a requirement is not a tax, but rather a police regulation or a duty similar to jury service and the like, and hence is not affected by constitutional requirements of prescribed equation between poll and property taxes, or other constitutional provisions respecting taxation. There is some authority to the contrary, however.”

Numerous cases are cited in the. notes to the text in support thereof from Elliott on Roads and Streets and from 13 R. C. L. See also, 4 Dillon on Municipal Corporations (5th Ed.), page 2459; 37 Cyc. page 332; 74 Am. St. Reps. 633.

If the power inheres in the State, in the exercise of its police power, to compel her citizens to work the public roads or, in lieu thereof, to pay money, we perceive no reason why, in the exercise of the same power, the State may not elect which of the two burdens shall be imposed.

The Legislature has evidently determined that between the ages prescribed the average citizen enjoys his greatest capacity to earn money or to perform labor: and it is not a discrimination against any citizen to fix these ages as the time during which this burden shall be imposed.

In the development of the State the Legislature long found it sufficient and expedient to give the citizen the option to work or to pay; and, if the right existed to impose those duties with the option to the citizen to choose between them, we perceive no reason why, with the advancing development of the State, it might not become expedient and proper to give the option to the State of saying which service should be required of the citizen. The act treats a dollar as the equivalent of a day’s work, and we see nothing arbitrary in the Legislature finding that a day’s labor, by a man able to work the roads, is worth that sum, and in requiring the payment of the dollar rather than the performance of a day’s work.

The decree of the court below is therefore reversed, and the bill seeking to enjoin the collection of the tax -is dismissed.

McCulloch, C. J.,

(dissenting). There is no doubt about the Legislature having power to require citizens to contribute their personal labor in maintaining roads •and to provide for a commutation on payment of money in lieu of performing labor. This power is of ancient origin and has always been exercised in this country.

The fullest latitude is also allowed to the lawmakers in prescribing the class of persons subject to this exaction. They may determine what classes of persons shall be required to labor upon the public highways, and that classification should not be disturbed unless found to be obviously and demonstrably arbitrary and unreasonable.

The instance now before us is not one of allowing commutation, for no alternative is given to the taxpayer. It is nothing more nor less than a capitation tax, imposed without regard to labor upon the public highway. It stands, therefore, on the same ground as any other capitation tax and should be uniform in its application — that is to say, without arbitrary or unreasonable effect.

The fact that the tax is imposed for road purposes does not take it out of the general class of capitation taxation. Speaking of this class of taxation, Judge Cooley, in his work on Taxation (vol. 1, p. 28), says: “As they regard only the person, they must be shared equally by all, except under governments where privileged orders are recognized and where they might be graded according to the orders to which the several persons taxed belong.”

The statute now under consideration imposes the tax on male citizens between the ages of twenty-one and forty-five. This is not a reasonable classification of persons, for a mere tax payable only in money, not being a commutation, physical ability to labor has nothing to do with the reasonableness of the classification. Of course, women and persons under majority may reasonably be excluded, but there is no reason for excluding persons merely because they are over the age of forty-five years. Such a classification is arbitrary.

My conclusion is therefore that the chancellor was correct in declaring the statute to be void.


text:
    Fort Smith & Van Buren District v. Kidd.
    Opinion delivered May 8, 1922.
    1. Master and servant — when relation exists. — Where a contract between a bridge district and a traction company provided that the district employ collectors of the bridge fares for the benefit of both, the, expenses to be divided, the collectors were the servants of the bridge district and the traction company.
    2. Bridges — liability of bridge district for false arrest. — In an action against a bridge district for false arrest and imprisonment of a passenger ejected from a trolley car, where the act creating the district made it an agent of the State, to which powers and duties of a public nature were delegated and which could exercise only the corporate functions which the State conferred, the district was not liable for the act of its servant in causing the arrest.
    3. Carriers — rule as to use of coupons. — A carrier has the right to use coupon books, and, in consideration of a reduced price, to provide that the coupons will not be accepted if detached.
    4. Carriers — right to eject passengers. — A carrier is authorized to eject a passenger who unlawfully presents a detached coupon and refuses to pay his fare.
    5. False imprisonment — failure to pay fare. — Where a failure to pay his fare on part of a passenger was not made a violation of law, though the carrier was authorized to eject a passenger who refused to pay, such failure did not authorize the passenger’s arrest.
    6. False imprisonment — liability of carrier. — Where a passenger who refuses to pay fare is ejected by being arrested, the carrier is liable for the act of its servant in procuring the arrest if the arrest itself is unauthorized.
    Appeal from Crawford Circuit Court; James- Cochran, Judge;
    reversed and affirmed.

      James B. McDonough and Hill é Fitshugh, for appellants.
    No authority is conferred upon the commissioners of the district to authorize an arrest, and it had no power to do so. Improvement district cannot be made liable for a tort. 94 Ark. 380; 119 Ark. 166; 115 Ark. 88; 114 Ark. 366; 110 Ark. 416; 118 Ark. 1; 131 Ark. 286; 170 S. W. 1012; L. R. A. 1918-B, p. 1010; 104 S. E. 309.

      The coupon., ticket presented by plaintiff was void. Michie on Carriers, p. 1627, sec. 2224.
    Neither the district nor Taylor, its servant, who furnished the information upon which the arrest was made, was liable. No false imprisonment was proved. 95 Ark. 227; 12 A. & E. Enc. of L. p. 739; 9 Cye. p. 330. Before false imprisonment can be made out it must be proved that the arrest was without legal authority. 92 Ark. 128; 143 Ark. 394. The act being committed in the presence of the officer, he was authorized to make the arrest without a warrant. C. & M. Dig. 'sec. 2904. There is no liability on the officer. 34 Ark. 105. He was uot acting for either appellant, hence no liability. 106 Ark. 109. There can be no presumption of authority from the district or the company. 65 Ark. 144; 79 Ark. 85. A carrier is not liable for false imprisonment, even if a special agent exceeded his authority. 84 Ark. 193; 87 Ark. 524; 119 Ark. 28; 135 Ark. 76; 218 S. W. (Ark.) 678; 126 Ark. 260.
    The relation of master and servant did not exist between the company and the bridge collector, who caused the arrest, and the doctrine of respondeat superior could not apply. 1 Labatt, Master & Servant, sec. 2-20; L. R. 6 Q. B. Div. 532; 22 Sou. 403; 52 Am. Bep. 129. A distinguishing feature of the relation of master and servant is that the employer retains the control over the mode and manner of doing the work under the contract of living. 38 Pac. 320. The contract between the district and the company provides that the company shall have no control over the collectors; their services were performed for the district. Therefore the company was not liable for the act of the commissioners. 28 L. B. A. 552; 38 L. B. A. (N. S.) 379; 57 Ark. 615; 98 Ark. 399; 87 Ark. 524. Conceding, for the sake of argument, that the collector was in the employ of the company, it would still not be liable, as the arrest was not shown to.haye be.i.-n within the scope of his employment. 87 Ark. 524: 65 Ark. 144; 135 Ark. 76.

      Webb Covington, for appellee.
    The arrest of appellee having been made by an employee of the district and company, it was incumbent on them to show justification. 105 Ark. 619. The agent was acting within the apparent scope of his authority and the principals were liable for his wrongdoing. 97 Ark. 24; 135 Ark. 80; 78 Ark. 553. The business of collecting fares was a joint undertaking, and both appellants were liable.
   Smith, J.

Appellee sued the Fort Smith '& Van Burén District, hereinafter referred to as the district, and the Fort Smith Light and Traction Company, hereinafter referred to as the company, to recover damages for false arrest and imprisonment. He recovered judgment in the sum of $1 against both defendants, and both have appealed.

Appellee took passage in Fort Smith for Van Burén on one of the company’s cars, and paid the fare, which is collected before crossing the bridge over the Arkansas River connecting the two cities. A different collector collects the fare over the bridge, and it is the custom for this officer to ride over the bridge on each car crossing it and to collect the fare from the passenger while doing so. This fare, if paid in cash, is five cents; but books are sold containing coupons, each' of which is good for one passage across the bridge, at a cost of one and one-fourth cents for each coupon. These coupons are void if detached, and the collectors are forbidden to accept them for fares if detached. Plaintiff, in crossing the bridge, tendered a detached coupon, which Taylor, the collector, refused to accept, and as plaintiff declined to pay the cash fare he was ejected and arrested when the car reached the Van Burén side of the river.

The plaintiff testified that, upon reaching the opposite side of the river, the car was stopped and Taylor called to one Arnold, a deputy sheriff, who appears to have been stationed on the bridge for the purpose of assisting in the collection of fares. Taylor called Arnold into the car. where plaintiff was arrested by Arnold and carried to the end of the line, and from there Arnold carried plaintiff 'before a justice of the peace, after1 having held him in custody for about two hours, and a charge of disturbing the peace by refusing to pay fare was preferred. No contention is made that plaintiff disturbed the peace or did anything else to be ejected for except to refuse .to pay the bridge fare; and the charge preferred before the justice of the peace was later dismissed. When Arnold took plaintiff into custody, he asked him pleasantly if he was about to make a test case, and plaintiff disclaimed any such purpose.

The bridge over which the company operates its cars was built by an improvement district under an act of the General Assembly, which has been construed by this court in the cases of Shibley v. Ft. Smith & Van Buren District, 96 Ark. 410; Nakdimen v. Ft. Smith & Van Buren Bridge District, 115 Ark. 194; Ft. Smith Light & Traction Co. v. Williams, 149 Ark. 159.

Theie was offered in evidence the contract under which the company acquired the right to use the bridge in crossing the river. The principal provisions of this contract are set out in the case of Ft. Smith Light & Traction Co. v. Williams, supra, and need not be repeated here. In construing the contract in that case we said:

“We shall not undertake to analyze and comment upon the various provisions of the contract. It evidenced an agreement by which the bridge district is to receive a certain sum of money from the traction company for the right granted the latter to run its cars for the transportation of passengers over the bridge. The original act expressly authorized the bridge district to charge the traction company for its right-of-way over the bridge. Nakdimen v. Ft. Smith & Van Buren Bridge District, 115 Ark. 194. By the same token the traction company, having thus acquired the right-of-way over the bridge, could exercise it with' all of its privileges, one of which was to charge passengers who used its facilities. The amount charged the traction company by the district is a definite and fixed sum ascertained and measured by the number of passengers which the traction company transports in its cars over the bridge and the amount which the traction company charges each passenger for such transportation. The traction company is a common carrier, and had a right to charge those whom it transported on its cars across the bridge according to the tariff of rates filed with the Corporation Commission. Act 571 of the Acts of 1919, p. 411, secs. 5, 6 and 7. See Helena Water Co. v. Helena, 140 Ark. 597. The money derived from this source, through the sale and use of tickets, and by the payment and collection of the cash fares in the absence of tickets, was primarily the property of the traction company and not of the bridge district. It became the property of the bridge district only because under the terms of the contract the traction company agreed to let the bridge district collect and use it in payment for the right-of-way privilege granted the traction company by the bridge district, and because the 'bridge district agreed to accept it as such.”

It is true the contract provides that the district shall employ and control and discharge the officers who collect the bridge fares; but this is done for the benefit of both defendants. In fact, the contract requires the traction company to assist in the collection of the bridge fares, and to furnish free transportation to the officers collecting them, and to pay $50 per month when only one collector is employed and to pay $100 per month when two are employed. In other words, the traction company is the carrier which renders the service for which the charge is made, and it makes the charge; but the fare is collected by the district for its use and benefit and as rental for the use of the bridge.

Under these facts we are of opinion that the officers engaged in collecting the fares are the servants of both defendants, and ordinarily each defendant would be liable for the conduct of these agents while acting within the line of their duty and within the scope of their authority. But it appears from the decisions of this court above cited, construing the act creating the bridge district, that the district is one of those agents of the State to which certain powers and duties of a public nature have been delegated and which can exercise only the corporate functions which the State 1ms expressly conferred upon them. Of such district it was said in the case of Board of Improvement Sewer District No. 2 v. Moreland, 94 Ark. 380: “Public quasi corporations are created with’limited statutory powers, and the general rule, as respects the question of liability to individuals for the negligence of their officers or agents, is that no such liability attaches unless expressly provided by statute. 1 Beach on Public Corporations, §§ 4, 262, 263; Mahoney v. Boston, 171 Mass. 427.” Other cases to the same effect are: Jones v. Sewer Imp. Dist., 119 Ark. 166; Harnwell v. White, 115 Ark. 88; Wood v. Drainage Dist., 110 Ark. 416; Eickhoff v. Street Imp. Dist., 120 Ark. 212; Browne v. Bentonville, 94 Ark. 80.

On behalf of the company it is not only insisted that the officers making the arrest were not its employees, but that, even if they were, such action was beyond the scope of their authority.

It may be first said that the defendants had the right to use the coupon books and, in consideration of the reduced rate at which they were sold, to provide that the coupons would not be accepted if detached. 2 Michie on Carriers, § 2224. The opinion in the Williams case, súpra, recognizes that right.

It may also be said that, as an incident to the right to collect fares, the right existed to eject a passenger who refused to pay. The plaintiff had no right to use the detached coupon which he presented in payment of his fare, and as he refused to pay the ¡cash fare the de-" fendants had the right to eject him from the car. But the failure to pay the fare is not made a violation of the law, and there was no authority to arrest plaintiff. In other words, plaintiff’s cause of action must be predicated upon the arrest, and not upon the ejection.

The liability of a carrier for the act of its employee in causing the arrest of the passenger has been several times considered by this court. See Dickinson v. Muse, 135 Ark. 76, and the cases there cited. In both the Muse case, swpra, and the case of St. L. I. M. & S. R. Co. v. Waters, 105 Ark. 619, this court quoted as a correct declaration of the law a syllabus from the case of Little Rock Ry. & Elec. Co. v. Dobbins, 78 Ark. 553, which reads as follows: “A street railway company is liable for the wrongful acts of its conductor in ordering a policeman to arrest one of its passengers and remove him from the car in which he was riding; but not for such conductor’s subseqent acts in prosecuting the passenger for a breach of the peace, such prosecution not 'being within the scope of the conductor’s authority.”

In the Dobbins case, as well as in the later cases which cite and follow it, it is made clear that a carrier is not liable for the action of its employees in authorizing arrests and prosecutions of persons who have been ejected or refused passage. But, if the passenger is ejected by being arrested, then the carrier is liable for that action if the arrest itself is unauthorized. It was so expressly held in the Dobbins case, supra, where it was said: “The evidence, so far as it related to the arrest of the appellee on the car by the policeman at the request and direction of the conductor, was proper, for this was the method adopted by the conductor for the ejectment of appellee from the car, and was therefore an act in the scope of the conductor’s employment.”

Plaintiff in the instant case was ejected by being arrested. It was within the scope of the collector’s authority to eject him, and the company is theref ore liable for the improper method employed in discharging the duty of ejecting the passenger.

The judgment against the district is reversed and dismissed. The judgment against the company is affirmed.

The chief justice dissents as to the order affirming the judgment against the defendant Fort Smith Light and Traction Company.

McCulloch, C. J.,

(dissenting). It has been definitely decided by repeated decisions of this court that it is not within the scope of authority of a conductor on a railroad train or street-car to cause the arrest of ,a passenger or to place one under arrest, unless it be done in the course of ejection from the car, and that even then the authority ends with the ejection, and the carrier is no further responsible for the act of its servant. Little Rock Traction & Electric Co. v. Walker, 65 Ark. 144; Little Rock Ry. & Elec. Co. v. Dobbins, 78 Ark. 553; Dickinson v. Muse, 135 Ark. 76.

In each of the cases cited the ejection from the car was wrongful, and therefore the carrier was held liable for the arrest to the extent that it was embraced within the ejection from the train. In the present case, however, it is conceded that the ejection from the car was rightful, for the reason that the passenger had refused to pay the fare, and since the arrest in connection with the ejection and during its progress inflicted no injury, the carrier is not liable, even for nominal damages.

Of course, if excessive force was used in rightfully ejecting the passenger from the car, or if he was unnecessarily humiliated by the arrest in the presence of other passengers, he might recover for injuries in. flicted by the excessive force, or unnecessary arrest; but in the present instance it is not shown that there was any humiliation resulting from the arrest. Appellee does not make any such claim, and there were no damages allowed him for humiliation or any other character of actual injury. The court only allowed nominal damages, and appellee does not complain.

So it seems clear to me that, if there were no actual damages resulting from the arrest in connection with the ejection from the train and as a part of the act of ejection, then the carrier is not liable.

My conclusion is that, on the undisputed testimony, the judgment against both of the appellants should be reversed and the action as to each of them dismissed.


author: Wood, J.

text:
    Warren v. State.
    Opinion delivered May 15, 1922.
    1. Perjury — indictment—failure to allege that defendant testified voluntarily. — In a prosecution tor perjury before a grand jury, an indictment alleging that defendant was sworn to tell the truth on examination of a charge for violating the liquor law against certain parties whose names were unknown to the grand jury and that defendant, falsely swore that when arrested he had no intoxicating liquor, was not defective in failing to allege that defendant voluntarily appeared as a witness, since the indictment did not show that defendant was testifiying as a witness on a charge against himself.
    2. Perjury — indictment—defense.—An indictment for perjury-alleging that, during investigation by the grand jury of violations of the liquoi law by unknown persons, defendant falsely swore that, when arrested, he did not have liquor in his possession, was not defective on the ground that defendant was indicted for testifying about himself, since his testimony could not be used against him on a prosecution for violating the liquor law, under Acts 1917, No. 13, § 14.
    3. Perjury — sufficiency of evidence. — Evidence held to sustain a conviction of perjury in swearing before the grand jury that defendant did not have liquor when arrested; such testimony being material and false.
    4. Perjury — sufficiency of evidence. — A conviction on a charge of perjury cannot be had on the evidence of one witness unless the material testimony of such witness, tending to prove the crime charged, is corroborated by direct testimony of other witnesses or by circumstances.
    5. Perjury — corroboration of witness — instruction.—In a prosecution of defendant for falsely swearing, as witness before the grand jury, that he had no liquor in his possession when arrested, a requested instruction that defendant could not be convicted on the evidence of a certain witness unless the witness’ evidence was corroborated by other evidence, “showing that the defendant had whiskey at the time he was arrested” was properly modified by striking out the quoted words, since, as requested, the instruction was argumentative and misleading.

      Appeal from Polk Circuit Court; James 8. Steel, Judge;
    affirmed.

      Norwood & Alley, for appellant.

      J. 8. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.
   Wood, J.

The appellant was convicted on an indictment which charged him as follows:

“The said Crock Warren, in the county and State aforesaid, on the 19th day of October, 1921, on his examination as a witness before the grand jury duly selected, impaneled, sworn and charged to inquire in and for the body of the county of Polk at the October term of the circuit court of said county, of which said grand jury J. E. Williams was duly appointed foreman, and thereby duly authorized and empowered to administer oaths to witnesses before said grand jury; the said Crock Warren was duly sworn to testify the truth, the whole truth and nothing but the truth by the said J. E. Williams as foreman of said grand jury aforesaid, on the examination of a certain matter and charge by the 'State of Arkansas against certain parties whose names were to the grand jury unknown, for violating the liquor law during the year 1921, then pending before the grand jury aforesaid, the said Crock Warren feloniously, wilfully, falsely and corruptly testified that he did not have any intoxicating liquors on his person or in his possession at the time he was arrested in said county on or about the 13th of October, 1921, and that he had not had any whiskey in Polk County in the last twelve months; that the matter so testified was material, and said testimony was wilfully and corruptly false; the truth being that the said Crock Warren did have on his person and in his possession intoxicating liquors at the time he was arrested by Doug Walker as aforesaid, and had on various occasions drunk intoxicating liquors in this county within the last twelve months,” etc.

The appellant demurred to the indictment, and the demurrer was overrruled. Appellant also moved to arrest tlie judgment, which motion was overruled. He duly saved his exceptions to these rulings of the court.

Doug Walker testified that he was deputy sheriff. He arrested Crock Warren and some others for some disturbance. At the time Warren had in his possession a soda-pop bottle of whiskey. Witness could smell whiskey on his breath. This was about the 12th of October, 1921. Witness asked Warren where he got the whiskey and he replied: “I got it from a fellow down here a while ago about like you.” Warren was coming up the road at the time he was arrested.

J. E. Williams testified that he was foreman of the grand jury, and as such administered the oath to Crook Warren, who was called as a witness before the grand jury. The grand jury was investigating certain violations of the liquor law in the settlement where Warren lived. The grand jury had information that Warren had whiskey in his possession when arrested and that he had drunk some whiskey the last year. He was asked where he got the whiskey he had on him, and he stated that he had not had any whiskey in twelve months, and did not ■have any when he was arrested. Warren was informed that he could not be indicted on his own statement. The grand jury was trying to find out from whom Warren bought the whiskey. It had no information that any particular person had pold Warren whiskey. Warren was asked whether he had bought whiskey from anybody within the last three years. They had information at the time that considerable whiskey was being drunk in the settlement where Warren lived, and Warren was the man they were investigating when they had him under oath. They were attempting to learn from whom he had bought the whiskey and where he got it. They were asking him concerning himself and others. Witness was asked this question: “You were not then in fact investigating any certain parties when you had him in the grand jury room with reference to selling whiskey, were you?” and answered, “None but him.”

Warren testified that when Doug Walker arrested him he did not have any whiskey and Walker did not take any whiskey from him.

Amos Musgrove testified that he got in the car about three-quarters of an hour after Warren was arrested and at that time he smelled whiskey on Warren’s breath.

Among other prayers for instructions, the appellant asked the following: “You are instructed that you cannot convict the defendant upon the evidence of the witness Doug Walker, unless you believe his evidence is corroborated by other evidence showing that the defendant had whiskey in his possession at the time he was arrested.” The court refused to grant the prayer as offered, but modified it by striking out the following words, “showing that the defendant had whiskey in his possession at the time he was arrested.” The instruction as thus modified was given. The appellant duly objected and excepted to the ruling of the court. Other prayers of appellant for instructions were refused. These instructions it is unnecessary to set forth. The court also gave certain instructions at the instance of the State which it is unnecessary to set out. The trial resulted in a judgment sentencing the appellant to imprisonment in the State Penitentiary for the period of one year, from which judgment is this appeal.

1. The first ground of appellant’s demurrer to the indictment is “that the indictment on the face of it shows that the defendant was indicted for alleged false swearing before the grand jury upon a matter that the grand jury was investigating with'reference to the defendant, and the indictment fails to allege that the defendant voluntarily appeared and offered his evidence on this question that is alleged to be false. ’ ’ To sustain his contention the appellant relies upon the case of Claborn v. State, 115 Ark. 387-391, where we said: “An indictment, for perjury based upon alleged false swearing in a criminal proceeding pending before the grand jury against the person himself giving the alleged false testimony is fatally defective unless it alleges that the accused voluntarily appeared before the grand jury to give the testimony upon which the indictment for perjury is predicated.” But the above case has no application here, for the reason that the indictment in the present case does not show that appellant was called to testify as a witness before the grand jury on a charge against appellant himself then pending before and under investigation by the grand jury. On the contrary, the allegation is that the appellant was sworn “to testify the truth, the whole truth and nothing but the truth * # * on the examination of a certain matter and charge by the State of Arkansas against certain parties whose names were to the grand jury unknown, for violating the liquor law during the year 1921, then pending before the grand jury,” etc.

The allegations of this indictment show that the grand jury had under consideration the investigation of charges against certain parties whose names were to it unknown, for violating the liquor law during the year 1921. This allegation could not have had reference to the appellant, for he was called as a w;tuass and 'his name was known to the grand jury. State v. Roberts, 148 Ark. 328.

The second ground of the demurrer is “that the indictment contained matter which is a legal defense or bar to the prosecution, in that defendant is indicted for testifying falsely about himself.” The allegations of the indictment show that the grand jury had under investigation, as we have stated, charges against certain persons whose names were to the grand jury unknown for violations of the liquor law during the year 1921. Section 14 of act 13 of the Acts of 1917, commonly known as the “bone dry” statute, provides as follows: “That no person shall be excused from testifying before the grand jury, or on the trial in any prosecution for any violation of this act; but no disclosure or discovery made by such person is to be used against him in any criminal or penal prosecution for or on behalf of the matters disclosed.”

Under the above statute the appellant could not refuse to answer questions concerning the violation of the liquor law during the year 1921, giving as his reason for such refusal that the answers to the questions propounded to him would show that he himself had violated the liquor law during that year. The statute above quoted gives him complete immunity from prosecution for any offenses in violation of the liquor law which his own testimony might disclose.

In State v. Roberts, supra, we said: “Under our statutes the grand jury has general inquisitorial powers without being confined to any particular matters submitted for investigation, and, according to the allegations of the complaint (indictment) in this case, the grand jury was pursuing such investigations in propounding the inquiry to the defendant. The question propounded might or might not have elicited information incriminating the defendant himself. But he could not refuse to answer on that ground, for the reason that the statute protects him from the use of his own testimony in the prosecution'of a charge against himself.” Citing Crawford & Moses’ Digest, § 3122; State v. Bach Liquor Co., 67 Ark. 163; Ex parte Butt, 78 Ark. 262. § 3122, C. & M. Digest, is analogous to § 14 of act 1, Acts 1917, supra.

It follows that the indictment is not defective because it alleged that the appellant “feloniously, wilfully, falsely and corruptly testified that he did not have intoxicating liquor on his person or in his possession at the time he was arrested in said county on or about the 13th of October, 1921, and that he had not had any whiskey in Polk County in the last 12 months,” without alleging further that appellant voluntarily so testified.

The above allegations were sufficiently definite, and if appellant’s testimony was false, as alleged, and truthful answers would have disclosed that he did have liquor in his possession and on his person at the time alleged, then the grand jury by further questions, if truthfully answered by appellant, might have elicited facts showing violation of the liquor law by certain other parties during the year 1921 whose names were unknown to the grand jury. A truthful answer to the question propounded might have led to a disclosure of these names and to facts showing violations by them of the liquor law during the period mentioned.

2. The appellant contends that the verdict is contrary to the evidence and to the law. The testimony, giving it its strongest probative force in favor of the State, only tends to prove that appellant himself was in possession of intoxicating liquor on the highway. Appellant contends that such testimony does not prove that tlie alleged false testimony given by the appellant before the grand jury to the contrary was material, because under the law the alleged false testimony involved only an offense committed by himself, and it is not alleged and proved that such testimony was given voluntarily. In State v. Roberts, supra, the court said: “Of course, on a trial of the case it would devolve on the State to show the materiality; and if it appears from such proof that the accused himself was the sole offender in the transaction under inquiry, then his false testimony would not constitute perjury under the statute, unless it further appears that he waived his privilege by voluntarily giving the testimony. ’ ’ That was an appeal by the State from the judgment of the trial court sustaining a demurrer to the indictment. One of the grounds of the demurrer was that the indictment failed to charge that the accused appeared before the grand jury and voluntarily gave the testimony set forth in the indictment. We held that the indictment was not defective because it failed to contain such allegation. Therefore, what the court said, supra, as to the necessity of proving the materiality, although germane to the discussion, was unnecessary to the decision. Moreover, our attention was not directed in the case of State v. Roberts to § 14 of act 13 of the Acts of 1917, supra.

It follows from what we have already said concerning this statute that it was unnecessary to allege .and prove that the appellant voluntarily appeared before the grand jury and gave his testimony, because it was alleged in the indictment that the grand jury had under investigation charges concerning the violation of the liquor law during the year 1921 by parties whose names were unknown to the grand jury, and under the above statute the appellant could not refuse to testify before the grand jury because the statute gives him complete immunity from prosecution for offenses discovered through his own testimony. Furthermore, as we have seen, the testimony was material because, if the appellant did have in his possession intoxicating liquor at the time of his arrest and had testified to that effect before the grand jury, such testimony would have provoked further questions which doubtless would have discovered the names of those from whom appellant obtained the whiskey, and in what manner, and for what purpose he obtained the same, etc. The testimony was very material to the investigation which the inquisitorial body was making as to the alleged violations of the liquor law during the year 1921 by certain parties whose names to it were unknown and whose names they were endeavoring to ascertain.

The evidence was sufficient to sustain the verdict, and the court did not err in refusing any of appellant’s prayers for instructions. In view of the above discussion, it becomes unnecessary to set out in detail and comment upon the various prayers of appellant for instructions which the court refused to grant. Such of these prayers as were correct were covered by the instructions which the court gave.

3. The court did not err in refusing to grant appellant’s prayer for instruction No. 6, nor in modifying and giving the same as modified. It is a well established doctrine in this State that a conviction on a charge of perjury cannot be had on the evidence of one witness unless the material testimony of such witness tending to prove the crime charged is corroborated by direct testimony of other witnesses, or by circumstances. Lamb v. State, 135 Ark. 275, and other cases there cited.

The witness Doug Walker testified that the appellant, when arrested, had in his possession a soda-pop bottle of whiskey; that he asked the appellant where he got the whiskey and appellant replied, “I got it from a fellow down here a while ago about like you. ’ ’ Bud Nichols and Joe Reynolds were present at the time. The bottle of whiskey which Walker took from the appellant was identified and exhibited to the jury.

Joe Reynolds testified that he was present when the appellant was arrested about ten feet from the officer. He never saw the officer take any whiskey off of appellant —was not where he could see. He heard the officer say. “What is this?” and heard appellant say, “I got it off of a fellow that looked just like you,” or something like that.

Witness Musgrove testified that in about three-quarters of an hour after appellant was arrested he got in the car and smelled whiskey oh appellant’s breath, and that he did not smell whiskey on any one else’s breath.

The above testimony tended to corroborate the testimony of the witness Walker to the effect that the appellant was in possession of whiskey at the time of his arrest. The appellant’s prayer for instruction No. 6 was therefore abstract because it made an issue as to whether there was any evidence corroborating the testimony of witness Walker. To be sure, the appellant had the right to challenge the weight and sufficiency of the evidence; but if his prayer for instruction No. 6 had been granted, appellant could have argued to the jury that there was no testimony at all tending to corroborate the testimony of Walker, towit: that the appellant at the time of his arrest was in possession of whiskey. Furthermore, the prayer for instruction No. 6 as asked by the appellant was argumentative and calculated' to mislead the jury, because, if the prayer had been granted as asked, the appellant would have been justified in arguing to the jury that some witness besides Walker would have had to testify affirmatively that .appellant had whiskey in his possession at the time of his arrest. Whereas, the corroboration was sufficient if there was any other evidence, direct or circumstantial, tending to prove that appellant had whiskey in his possession when he was arrested. The prayer for instruction as modified and given was more favorable to the appellant than he had the right to ask or expect. If counsel for appellant conceived that the instruction as modified .and given was calculated to mislead the jury by causing them to believe that it was sufficient if the testimony of Walker was corroborated in immaterial matters, such as they here argue in their brief, then it was their duty to direct the attention of the trial court to these immaterial matters by a specific objection, which they did not do. The instruction, while abstract, was not inherently erroneous.

The record presents no reversible errors, and the-judgment is therefore affirmed.


text:
    Ward v. McMath.
    Opinion delivered May 15, 1922.
    1. Perpetuities — deed to unincorporated association. — A deed conveying land to certain individuals as trustees of a camp of United .Confederate Veterans, and their successors and assigns, such camp being an unincorporated voluntary association of ex-Confederate Veterans, having a constitution and by-laws for their government, held not obnoxious to the rule against perpetuities.
    2. Trusts — reformation of deed — jurisdiction of chancery.— Where a trust deed conveying land was executed to certain trustees to hold for a certain camp of Confederate Veterans, chancery may properly assume jurisdiction of a suit between members of the camp to reform such deed so -as to enlarge the trust so as to include other beneficiaries than members of the camp.
    3. Reformation of instruments — parties.—The widow and heirs of a deceased grantor in a deed were necessary parties to a suit to reform the deed, though the dispute arose between members of the grantee, an unincorporated association.

      Appeal from Franklin Chancery Court; J. V. Bourland, Chancellor;
    reversed.

      Chew & Ford and A. A. McDonald, for appellants.
    An incorporated association held its property subject to a majority vote of its'members. 46 Ark. 291; 122 Ark. 7; 9i8 Pac. 897.
    Property owned by an unincorporated voluntary association belongs to the association. 98 Pac. 897:
    A body indefinite as to members may act by a majority of the members present at any legal meeting, no matter how small a proportion they may constitute of the whole number entitled to be present. 23 Am. & Eng. Ency. of Law, p. 589.
    A quorum is, to all intents and purposes, as much the body to which it pertains las if every member were present. 25 Am. & Eng. Ency. of Law, p. 1132, p. 2.
    The action -of a majority of the church members at a regular meeting is the action of the church. 122 Ark. 7. Especially where they adhere' to the doctrine of the church. 46 Ark. 291. They are entitled to the control of its property. 43 Am. St. Eep. 798; 25 Am. & Eng. Ency. of Law, p. 1135, sec. 3; 98 Pac. 903.

      T. A. Pettigrew, for appellees.
    The court properly enjoined the parties from interfering with the trustees in the discharge of their duties, and had jurisdiction to instruct the trustees as to the performance of their duties. 4 Ark. 302; 60 Ark. 503; C. & M. Dig., sec. 1098.
    A resulting trust should have been declared in favoi of those who subscribed the money. 40 Ark. 62; 200 S. W. 1029.
   Wood, J.

The appellees, plaintiffs below (hereafter called plaintiffs), instituted this action against the appellants, defendants below (hereafter called defendants). The complaint alleged in substance that the plaintiffs and defendants were members of Pat Cleburne -Camp of Confederate Veterans No. 191 of Charleston, Arkansas, (hereafter called camp) and the only members of the camp; that in conferences between representative of the people in the vicinity of Charleston who were interested in Fourth of July celebrations, and representatives of the camp (who, respectively, had been holding their celebrations and annual reunions at different points in the vicinity of Charleston prior to the year 1907], it was decided that the camp and the people generally, not members of the camp, should jointly purchase, for the benefit of the camp and the people, in order to enable them, respectively, to hold their reunions and Fourth of July celebrations, the west half (Wl/2) of the southwest quarter (SW 1/4) of section 8. in township 7 north, range 28 west, in Franklin County, Arkansas, to be used as a public park by the camp and the people generally for the purposes above set forth; that it was agreed and understood that the deed should be executed to certain parties, members of the camp, and their successors in trust for the use and benefit of the camp, in holding their annual reunions, and for the benefit of the public in the vicinity generally in holding their celebrations, it being understood that the dates of the reunions and celebrations should in no manner conflict. It is further alleged that funds were solicited, subscribed, and paid by various persons for the purchase money of the land, upon the representation that the land would be purchased, held and used for the above purposes. It was alleged that the funds raised by such subscriptions, and from the holding of celebrations and reunions, were used in the purchase of the above described land; that it was agreed and understood by all parties in interest that when the members of the camp, because of the infirmities of old agve, or otherwise, were unable to further execute the trust, the Sons of Veterans should be made trustees, and when there were ho longer any Sons of Veterans, or when such Sons were unable from any cause to execute the trust, then the town of Charleston should be named as trustee to hold the land in trust for a public park, in order to effectuate the purposes above designated.

It is further alleged that it was agreed and understood by all parties in interest that when J. P. Falconer, the owner of the land, and his wife executed their deed to the same, the purposes of the trust as above mentioned should be expressly stated in the deed; that through mistake and oversight of the draftsman of the deed the lands above described were conveyed to J. K. P. Holt, Tom McFerran, Webster Flannagan, Geo. W. Hill and W. P. McMath, trustees of the camp,’ and to their successors and assigns, to have and to hold the same to said trustees for said camp and their successors and assigns forever. It is alleged that certain of the trustees originally named in the deed had died, and others had been appointed by the chancery court to succeed them; and since their appointment another one of the original trustees had died and his successor has not been named; that the plaintiffs were now the only trustees of the property.

The complaint further set forth that “there had been a dissension 'among the members of the camp, and that some of the defendants had ignored the rights and privileges of all the beneficiaries in the deed of trust except the members of the camp, and claim that the members of the camp have the exclusive right to the possession of the land;” that they were denying the plaintiffs and the other beneficiaries in the deed of trust the rights thereby secured to them, all to their great and irreparable injury. The complaint concludes with a prayer that the deed be reformed so as to read and state the purposes of the trust and the beneficiaries thereof, as above stated, and that the trust as thus expressed be perpetuated, and for an order restraining the defendants from interfering with the execution of the' trust as thus expressed; and that a trustee be appointed to fill the now existing vacancy, and for all relief.

The defendants, in their answer, after denying all the material allegations of the complaint, set up that the ^amp was duly organized as such and had adopted a constitution and by-laws for the government of its organization; that the property described in the complaint belonged to the camp; that it is the sole and exclusive owner thereof under a deed executed September 12, 1907, from J. P. Falconer and Fannie T. Falconer, his wife, which was duly recorded on the 21st day of November, 1908. The deed is set out in haee verba in the answer. The defendants then further allege that upon the execution of the deed the camp took charge of the property and made improvements thereon, which they set forth; that the camp had been in the open, notorious, adverse, and continuous possession of the land since the 12th of September, 1907. The defendants therefore pleaded the seven years statute of limitations.

The defendants averred that J. P. Falconer, the grantor in the deed, was dead; that T. P. Winchester, the draftsman of the deed, was dead; that J. K. P. Holt, Confederate Veteran and one of the trustees, who procured the services of T. P. Winchester to write the deed, was dead. The defendants alleged that the plaintiffs had delayed bringing their suit to reform the deed for thirteen years, and that under the circumstances they were barred by laches from maintaining the suit. They alleged that the deed was drawn as directed and was executed as intended by the parties who donated the fund to purchase the lands, and by the vendor who executed the same, to establish a Confederate park for the use and benefit of Confederate Veterans, and not for the public. The answer concluded with a prayer that the complaint be dismissed for want of equity.

The deed in controversy, a copy of which was made an exhibit to the answer, was in evidence before the court, and much testimony taken by the respective parties to sustain the allegations of their pleadings and their respective contentions as set up therein. The court found the facts to be as substantially set forth in the allegations of the complaint, that the words “their successors” were intended by all parties thereto to mean, “said organizations of Sons and Daughters of ex-Confederate veterans, and, in default of such organizations, the incorporated town of 'Charleston; * * # and that the term ‘assigns’ was intended to impart a right of sale in the trustees by resolution of the -camp so directing, only, however, in the event and for the purpose of securing a more desirable park by exchange or sale and repurchase. ’ ’

After making its findings, the court refused to enter a decree reforming the deed, for the above reasons, and for the further reason that the widow and heirs of Col. J. P. Falconer were not made parties. The court further found as follows: “Because all members of the said Pat Cleburne Camp being parties, as are also all of the trustees in the said deed, or their successors, duly constituted and appointed; accordingly, under 'the evidence, the equity of all parties hereto is to have decreed a construction of said deed, along with decretal instruction to said trustees by way of declaring the full and true nature of said trust.” The court also found a vacancy existing in the board of trustees, and appointed Captain M. D. Brown, a member of the camp, to fill the vacancy. After finding and declaring the purposes of the trust to be substantially as set forth in the complaint of the plaintiffs, and charging the trustees that certain duties were incumbent upon them as such, and directing them to perform these duties, the court concluded its decree as-' follows: “It is therefore considered, ordered and decreed as hereinbefore recited and found, specifically and generally in nil respects. It is further decreed that the complaint of the plaintiffs, so far as it prays reformation of the -said deed, is dismissed, for the reasons stated in the findings. The defendants and each of -them are enjoined from in any way interfering with the trustees in the discharge of their duties as such and in the collecting of ‘any funds derived from concessions at any time Whatever,” etc.

The defendants objected to all the findings and decree of the court except that which denied to the plaintiffs a reformation of the deed and dismissing their complaint as to this for want of equity. From the decree of the court adverse to their contention the defendants prayed and were granted an appeal.

1. While much phraseology and unusual verbiage is indulged in by the parties in their pleadings as well as by the court in its findings and decree, yet when the pleadings are analyzed, this lawsuit resolves itself into these simple issues, namely: whether or not the appellees are entitled to have a reformation of the deed in controversy, and whether or not the court should appoint a trustee as the successor to D. Rogers, deceased, who had been previously appointed by the .chancery court of Franklin County as a trustee, and who had accepted .such appointment and had been serving in that capacity.

The pleadings and testimony, which are exceedingly voluminous, show that the cause progressed to a hearing upon the above issues. The complaint does not allege the form of the organization of the camp, but the allegations of the answer and the undisputed testimony show that the camp is an unincorporated voluntary association of persons composed exclusively of ex-Confederate veterans, which adopted a constitution and by-laws for its government. The constitution sets forth the name of the camp, designates the officers thereof, prescribes their duties, and the objects of the organization. The testimony shows that the camp was in existence before the purchase of the park. By the terms of the deed the grantor expressly conveys to the parties named therein, designated “trustees of Pat Cleburne Camp United Confederate Veterans No. 191, and unto their successors and assigns forever,” for the consideration named therein, the land in controversy, describing it. The habendum, clause of the deed is as follows: “To have and to hold the same unto the said trustees for said Pat Cleburne Camp United Confederate Veterans No. 191, their successors and assigns, forever.”

The above language of the deed shows clearly that the land conveyed was trust property to be held in trust by the trustees, their successors and assigns, for the use and benefit of the camp. The legal title was thus vested, by the unmistakable language of the deed, in the trustees as individuals, while the equitable title was vested in, and held by, those who then constituted the members of the camp, and who could be readily ascertained according to the constitution and by-laws of the association governing its membership. The deed was thus not obnoxious to the rule against perpetuities which prevents alienation. Old Society v. Crocker, 119 Mass. 1-23; Wrightington on Unincorporated Associations, § 60, p. 240; Devlin on Real Estate, § 190, p. 258, and cases cited.

In the case of Monk v. Little, 122 Ark. 7, we held, quoting syllabus, that ‘ ‘ courts of chancery may properly assume jurisdiction' of a dispute between different factions of a church organization where property rights are involved.” In the case at bar the plaintiffs and the defendants, as the allegations of the complaint and the undisputed testimony show, are members of the camp. The complaint alleged that “there had been an unfortunate’ dissension among the members of the camp. Some of the defendants have ignored the rights and privileges of all the beneficiaries of said deed of trust and claim that the members of said camp have the exclusive right to said land and the exclusive right to possession thereof. ” Inasmuch as some of the members of the camp are suing other members of the camp to have the deed reformed so as to enlarge the trust to include other beneficiaries than members of the camp, it is manifest that property rights are involved. By analogy to the1 doctrine announced in Monk v. Little, supra, it occurs to us that the facts alleged in the complaint clearly state a cause of action giving the chancery court jurisdiction of the subject-matter in controversy between the parties; that is, as to whether or not the deed should be reformed. The trial court ruled correctly that- the widow and heirs of the grantor in the deed were necessary parties to the action for reformation. Having so ruled, the court should have proceeded no further until the necessary parties were brought in. All the further findings and the decree of the court 'based thereon, were beyond the legitimate scope of the pleadings and beyond the jurisdiction of the court. For, if the court had no jurisdiction to reform the deed and declare a resulting trust because the necessary parties were not before it, then obviously it could not retain jurisdiction and enter a decree construing the deed, declaring the trust, and giving directions to the trustees, just as if the necessary parties had been before the court, and as if the deed had been in fact reformed by the plaintiffs. The decree of the court expressly declares “that the complaint of the plaintiffs, so far as it prays reformation of said deed, is dismissed,” yet the decree also recites: “It is therefore considered, ordered, and decreed as hereinbefore recited and found specially and generally in all respects.” The “herein-before” findings and recitals show that the court had as effectually granted the plaintiffs all the relief they prayed as if it had formally and technically declared the reformation of the deed as prayed by them. While ostensibly denying the plaintiffs the relief of reformation sought 'by them, nevertheless the decree, as a whole, in reality does grant them such relief. This the court could not do with the parties then before the court.

Inasmuch as the cause must be reversed and remanded, we will not, in advance of the determination of the issue as to whether the deed shall be reformed, decide whether the chancery court should have appointed a trustee to fill the vacancy caused by the death of trustee Rogers. For the error in proceeding to construe the deed in the manner shown before the issue as to the reformation thereof is determined, the decree is reversed, and the cause will be remanded with directions, if the parties so desire, to make the widow and heirs of Colonel Falconer, and others if necessary, parties, to take proof, and for such other and further proceedings herein as the parties may elect to adopt, according to' law and. not inconsistent with this opinion.