author: McHaney, J.

text:
    Stanfield v. Kincannon.
    Opinion delivered February 8, 1932.

      Evans <fc Evanis, for appellants.

      Rhyne <& Shaw and Hays $ Smallwovd, for appellees.

      Gochraii ■<& Arnett, for interveners.

      Trieber & Lasley, amici cttriae.

   McHaney, J.

This is an appeal from a judgment of the circuit court of Logan County awarding a writ of mandamus on the petition of the county judge and Fred Stacy against Joe Z. Stanfield, county treasurer of said county, by which the treasurer was ordered and directed to pay, from the funds in his hands arising under the provisions of act 63 of the Acts of 1931, the warrant of the petitioner, Fred Stacy, drawn on a fund in the county treasury resulting from the turnback from the State Highway Fund in the State Treasury to the credit of the county highway fund. This judgment also approved and confirmed the order of the county court of Logan County made and entered on August 6, 1931, hereinafter mentioned, and dismissed the interventions of the First National Bank and other interveners.

In 1930 a large number of warrants were issued against the county highway fund of Logan County for right-of-way, materials, supplies, and labor payable in 1931, and in 1931 a large number of the same kind of warrants were issued against said fund payable in 1932, all of which are still outstanding and aggregate more than $35,000. On August 6, 1931, there was on deposit in the county treasury, to the credit of the county highway fund, $3,000, and the county .judge made an order creating what was designated as “County Road Fund Special under act 63,” and it was ordered that the funds already on hand and all funds thereafter to be received by the treasurer under the provisions of said act 63 of 1931 be credited to said fund, and directed the clerk to charge the county treasurer with all funds on hand and which were thereafter to be received from the State Treasurer to said special fund. The order further designated certain county roads as “farm-to-market roads.” The clerk was further ordered and directed to receive and file all claims properly presented against said “County Road Fund Special under act 63,” and, when ordered paid by the court from said fund, to issue his warrant upon the treasurer against said fund, and that the treasurer should pay same from said fund only. The effect of the order was to create a new fund out of which warrants thereafter to be issued should be paid, and was virtually a repudiation of the warrants then outstanding in the hands of the interveners and others in the amount of more than $35,000, as aforesaid. It appears that only the funds received from the State Treasurer and commonly referred to as turnback from the State Highway Fund go into the county treasury to the credit of the county highway fund, and that there is no money in said fund arising from taxes or otherwise in Logan County in said county highway fund. The three-mill road tax of Logan County does not get into that fund, as it is prorated to the several road districts in the county and spent under the direction of the county judge through road overseers. Thereafter appellee Stacy filed a claim with the county clerk in the sum of $88 for road work done by him which was presented to the county court and allowed against the newly created fund. The court directed the clerk to issue his warrant in Stacy’s favor for said sum, and directed the treasurer to pay same out of the new fund so created, which the treasurer declined to do. The treasurer also refused to obey the order of the court to transfer the money then on hand to the credit of the new fund, and refused to pay the Stacy warrant because of the warrants already issued and outstanding in the hands of interveners and others, which had been issued against the county highway fund prior to the date of Stacy's warrant. The treasurer and interveners appealed from the order of August 6th to the circuit court, and that case, as also that for the petition for mandamus, were heard together in the circuit court with the result heretofore stated. This appeal challenges the correctness of that judgment.

We think the judgment of the circuit court awarding the writ of mandamus against the treasurer, in dismissing the interventions, and in approving the order of the county court of Augmst 6, 1931, was erroneous and must be reversed on the authority of Anderson v. American State Bank, 178 Ark. 652, 11 S. W. (2d) 444; Burke v. Gullege, 184 Ark. 366, 42 S. W. (2d) 397; and Hastings v. Pfeiffer, 184 Ark. 952, 43 S. W. (2d) 1073. In the last-mentioned case we said: “We are of the opinion that it is immaterial by what name the fund was called, where it is shown that the ‘county highway fund’ and the ‘Clay County road fund’ were received from the same source, derived from the same character of taxation and devoted to the same purpose.” Both the cases of Burke v. Gullege and Hastings v. Pfeiffer were dealing with the turnback fund under act 63 of 1931. This act is the authority relied upon by the county judge in the instant case to support his order of August 6th. As already stated, the county highway fund of Logan County, depends entirely for its revenue on act 63 of 1931, and the effect of the order was thereafter to make it impossible for the outstanding warrants against the county highway fund ever to be paid, and we think the county court had no authority to make such order. It is regrettable, of course, that a county judge would issue warrants on the county highway fund in excess of the revenue accruing to said fund during the current year, and especially to make them payable during the term of a new administration, but this is a matter for legislative action and not for the courts. We*held in the case of Anderson v. American Bank, supra, that the fund in the county treasury received from the State as turnback is not county revenue, but State revenue, and that the provisions of the amendment to the 'Constitution prohibiting counties from going in debt had no application to this fund. By act 63 of 1931 a tax of 6 cents a gallon is levied on gasoline, and it is also provided that, after deducting the refund on gasoline used for other than road purposes, the fund shall be divided and deposited in the State Treasury, five-sixths to the credit of the State Highway Fund and one-sixth to the credit of a fund to be known as “county highway fund,” and a further fund of 12% per cent, of the net proceeds derived from the sale and delivery of State highway notes or bonds for the years 1931 and 1932, except such as are sold to pay off short-term notes, shall be deposited in the State Treasury to the credit of the county highway fund. And the act further provides for a distribution of the funds in 'the treasury to the credit of the county highway fund to the counties on a basis therein fixed. The possibility of treating this county highway fund so raised as county revenue 'and thereafter subject to the provisions of amendment No. 10 has suggested itself to us, but we have reached the conclusion that this result does not follow in view of our decisions in the Burke and Hastings cases, and this view is strengthened by the provisions of § 6 of said act 63 of 1931, which provides “that, should the revenue produced under act 65 of the Acts of 1929 be less than $7,500,000 for any year, then, and in that event, such deficit shall be taken from the county highway fund for such year, before an allotment to the counties is made as provided for in this act. It being expressly understood that all funds derived from the operation of this act or from the operation of said act 65 of the Acts of 1929, shall be applied first to the payment of State highway notes or bonds and coupons issued hy the State of Arkansas under the provisions of act 11 of the Acts of 1927, and under the provisions of act 65 of the Acts of 1929.” Therefore the conclusion is irresistible that the fund thus created for the benefit of the counties is in fact a State fund which may be taken and used hy the State in the payment of its outstanding obligations. In this view, said fund continues to be a gratuity provided by the State for the benefit of its subdivisions.

The next question for decision is the order in which the outstanding warrants may he redeemed. The court ordered the payment of Stacy’s warrant out of the fund on hand without regard to the prior outstanding warrants in the hands of interveners and others. Section 2 of the act of December 17,1846, digested as § 2007, Crawford & Moses’ Digest, provides: “That all county scrip, and every warrant now issued, or which shall be hereafter issued, in cancellation of any county scrip, in any county of this State, according to the provisions of the forty-first chapter of the Rev. Statutes, headed, ‘county treasurers,’ shall be redeemed and paid by the county treasurer in the order of their number and date, and that no scrip or warrants shall he thus discharged in preference to any of older dates, or until all of a prior date are paid, provided the county treasurer upon whom said scrip and warrants are drawn shall not be able to meet all demands against him.” This section applies in this case as the treasurer is not able to meet all demands against him drawn on the county highway fund. We think it applies in all such cases and not merely to warrants issued in cancellation of scrip or warrants previously issued. Otherwise injustice might, probably would, result on account of favoritism. This view is strengthened by a reading of § 3 of said act. It provides “that all county scrip or warrants * * * shall be received, irrespective of their number and date, in payment of all taxes, duties, fines, penalties and forfeitures, accruing to said county.” The necessary inference is that, except for the purposes named in § 3, all scrip or warrants shall be redeemed in the order of their number and date, if the treasurer is not able to meet all demands. No distinction is to be made between scrip and warrants, as the terms are used interchangeably in the act. This meaning of the act was recognized by this court in Crudup v. Ramsey, 54 Ark. 168, 15 S. W. 458, in an opinion by Judge Hemingway, where he said, in reference to the act of 1846, now under consideration: “This is a part of an act which provided that warrants should be paid in the order of their number, and that no warrants should be paid until all of a prior date had been paid or provided for. * * * Its manifest purpose was to provide that warrants should be received in payment of taxes and dues to the county, even though there were prior warrants, not paid or provided for.” And the same meaning of the act was recognized in Graham v. Parham, 32 Ark. 677, 694, where Mr. Chief Justice English used this language: “County warrants shall be redeemed and paid by the county treasurer in the order of their number and date, and no warrant shall be thus paid until all of a prior date are paid, provided the county treasurer upon whom the warrants are drawn shall not be able to meet all demands upon the treasury.' Acts December 17, 1846, § 2; Gantt’s Dig., § 1042.” This cannot be avoided by making warrants payable in the future.

It appears therefore that the learned trial court erred in awarding the writ of mandamus against the treasurer, in dismissing the interventions, in ordering the Stacy warrant paid ahead of others, and in sustaining the order of the county court of August 6, 1931.

The judgment will be reversed, and the cause remanded with directions to dismiss the petition for mandamus, vacate and hold invalid the order of the county court of August 6, 1931, and to order the treasurer to pay all valid outstanding warrants on the county highAvav fund in the order of their number and date.


source: Caselaw Access Project

author: Butler, J.

license: Public Domain

text:
    Treece v. State.
    Opinion delivered February 8, 1932.

      Keometh G. Koffelt, for appellant.

      Hal L. Norwood, Attorney General, and Robert F. Smith, Assistant, for appellee.
   Butler, J.

Ed Treece was tried and convicted on a charge of selling alcoholic liquor, and from the verdict and judgment is this appeal.

The testimony on the part of the State was to the effect that one Godbey, on the evening of Thanksgiving Day, 1930, was arrested for drunkenness, and a pint bottle of whisky was discovered in his possession. This bottle was taken by the officer who made the arrest and labeled for the purpose of identification, and by him given to another person in the mayor’s office for safekeeping. It was again delivered to the officer, who exhibited it at the trial, over the objection of the defendant. Godbey testified that on the evening of Thanksgiving Day, 1930, he bought -a half-gallon fruit .jar of whisky from the defendant and paid him $4 for.it; that it was on this liquor that he had become drunk when he was arrested; that a part of the liquor in the fruit jar had been drunk, and that he had poured what was left into a pint bottle, but did not remember where he got the bottle.

This testimony was corroborated by the testimony of other witnesses, all of which was denied by the defendant, who testified that Godbey and his companions had' inquired of him where they could buy some liquor, and that he informed them that he did not know; that he never sold any liquor to Godbey, and that Godbey had not entered his house. The defendant’s daughter testified corroborating the testimony of defendant, stating that she was with her father on the occasion when God-bey came to their house, and that Godbey did not come into the house, and did not purchase any liquor.

The only ground urged for reversal of the judgment is for the alleged error of the trial court in permitting to be introduced in evidence the bottle of liquor taken from the person of Godbey by the officer, on the ground that the bottle of liquor was not identified as the same as that taken from Godbey. This objection is not tenable, for the reason that the evidence plainly shows that the bottle introduced in evidence was the same as that taken from the person of Godbey, who testified that it contained part of the liquor sold to him by the defendant. We are of the opinion that no prejudice could have resulted, for the reason that it was immaterial whether the liquor offered in evidence was the same as that taken from Godbey. There was no question as to whether it was alcoholic liquor or a different kind of beverage that was sold, and the introduction of the liquor could have served no useful purpose or have prejudiced defendant.

The only question in the case was whether or not Godbey had purchased alcoholic liquor from the defendant. Godbey and the other witnesses for the State testified that he did, while the defendant testified that he had sold Godbey no liquor or beverage of any kind. The evidence was amply sufficient to sustain the verdict of the jury, and the judgment will therefore be affirmed.


text:
    Taylor v. Union Trust Company.
    Opinion delivered February 8, 1932.

      Sam Pi or ex and Nat Hughes, for appellant.

      Rose, Hemingway, Cantrell Loughborough, for appellee.
   Butler, J.

Appeal from a decree allowing claim of intervener, appellee, as a prior claim.

The facts in this case, about which there is no dispute, are as follows: On November 15, 1930, appellee company was the owner of certain drafts with bills of lading attached aggregating the sum of $1,836.42, the drawees of which were all customers and depositors of the American Exchange Trust Company. On that date the appellee transmitted these drafts to the American Exchange Trust Company for collection and remittance, taking from the trust company a trust receipt therefor. During banking hours on that day the trust company collected all of the items and surrendered them to the respective drawee, together with the documents thereto attached. After banking hours on said day the trust company issued to the appellee a check drawn upon itself for the amount of the proceeds of said collections. The trust company would have paid the cash to the appellee had the same been demanded, but it was the custom of banks doing business in Little Bock to remit the proceeds of collections in the form of a check, as was done in this case. The check was delivered to the messenger of the appellee between 1 and 1:30 o’clock in the afternoon, and, bji the messenger, delivered to the appellee about 1:30 the same afternoon. At that time the banks in Little Bock Closed on Saturdays at 1 o’clock. Be-for opening time on the following Monday, November 17th, the American Exchange Trust Company suspended business, and, at the expiration of five days, the bank commissioner took charge of it on the ground of insolvency.

At the time of the foregoing transaction the appellee company did not maintain a deposit account with the trust company. It is admitted that the entire transaction was in the usual course of business, and that nothing was done or intended by either the trust company or the appellee company to do anything for the purpose of giving appellee preference in the assets of the trust company, but that each step in the transaction was made and accepted in entire good faith, and with no thought of giving or obtaining a preference.

It is the contention of the appellant that the action of appellee’s messenger in accepting the check of the trust company, when the cash could have been demanded and received, created merely the relation of debtor and creditor between the two, that therefore the claim of appellee is only that of a general creditor, and, as authority for this, cites a number of decisions from the courts of other States and the recent decision of this court in the case of Taylor v. First National Bank of DeQueen, 184 Ark. 947, 43 S. W. (2d) 1078. The facts in that case bear no similarity to those presented in the case at bar. We there held that the transactions out of which the claim for preference arose created no preferential claim for the reason that the draft, the basis of the claim, did not represent the proceeds of a collection, ¿but was in payment of che. ks received in the ordinary course of business and not for collection, and we stated that, if the checks received were for collection merely, then the hank handling them would have acquired no title to their proceeds, but would have held them in trust for the appellee. Darragh v. Goodman, 124 Ark. 532, 187 S. W. 673.

We agree with the contention of the appellee that the court properly adjudged its claim a prior one under subdivision 7 of § 1 of act 107 of the Acts of 1027, and that we may look no further than to the statute itself for a justification of the decree of the trial court. That act defines the classes of creditors of an insolvent bank, among which is “the owner of a remittance of the said bank, the proceeds of a collection made by said bank by honoring a check or other order upon itself, or 'by a charge against the account of its depositor, although the said collection has not had a distinctive identity in the hands of said bank, has not actually increased its cash assets, and has resulted in merely shifting its liability upon its books from one of its creditors to another or new creditor, in instances where the said remittance has been presented with due diligence for payment to said bank or its drawee and is not paid, and where the instrument collected cannot be returned by the commissioner to the person who had transmitted the same to said 'bank for collection, the said instrument having been surrendered by said bank upon its collection in such manner prior to the commissioner taking charge, * *

These are the conditions under subdivision 7 of § 1, supra, when a preference will arise, and these are the facts in the instant case except that the remittance was not presented for payment to the American Exchange Trust Company. This, however, would have been a futile act on the part of the appellee. It received the remittance after banking hours on 'Saturday, and, as the American Exchange Trust Company did not open for business thereafter, presentment for payment was impossible. Under the statute presentment was not necessary until within a reasonable time after the remitting bank opened again for business, so that, under any just and reasonable interpretation of the statute, under the facts in this case, the presentment for payment was not a necessary prerequisite to the claim for preference. That the cash would have been paid to the messenger had he demanded it does not change the right of appellee under the act above quoted. Nor did the acceptance by him of the cheek create merely the relation of debtor and creditor, as claimed by the appellant. The proceeds of the collection were never the property of the collecting bank. It only held the same in trust for the appellee, and the check delivered to the messenger of the appellee was nothing more than the symbol of the cash so held, , issued according to the custom of banks and accepted, not in lieu of the money, but only as a token of it, and by a presentation of which the cash might be obtained. In other words, it was the vehicle of the transfer of the cash spoken of in subdivision 7, supra, as “a remittance of the said bank,” and as it represented the proceeds of - a collection made by the collecting bank by charging the different items collected against the accounts of the depositors — drawees of the drafts — it created a preferred claim although the transaction did not increase its cash assets, because the drafts with the documents attached had been surrendered to the drawees upon their collection, and therefore could not be restored to the appellee and it be placed in the same condition with respect thereto as it had been before. As stated by the appellee, it is just this state of case where the security could not be restored that the Legislature gives as a substituted security a preference in the assets of the insolvent institution.

The conclusion reached finds support in the recent cases of Taylor v. Corning Bank & Trust Co., 183 Ark. 757, 38 S. W. (2d) 557, and Taylor v. Dermott Grocery & Commission Co., 184 Ark. 947, 45 S. W. (2d) 23, and the case of Taylor v. First National Bank of DeQueen, supra.

Let the decree be affirmed.


author: •Smith, J.

text:
    Howard v. State.
    Opinion delivered February 15, 1932.

      Hal L. Norwood, Attorney G-eneral, and Pat. Mehaffy, Assistant, for appellee.
   •Smith, J.

This appeal is from a judgment sentencing appellant to a term in the penitentiary of two years on a charge of burglary and of one year on a charge of grand larceny. For the reversal of this judgment he assigns as error in his motion for a new trial that the verdict was contrary to the law and the evidence, and that the court erred in permitting the prosecuting attorney, over his objection, “to improperly argue the previous convictions of the defendant, to which action of the court the defendant at the time excepted.”

But little need be said to dispose of this appeal. The testimony on the part of the State was to the following effect. On the night of June 17, 1931, a grocery store in the city of North Little Rock was broken into and 3,500' cigarettes, of the value of from $27 to $30, were taken therefrom. Entrance was gained by breaking the glass in the front door and the padlock on the door. The day following appellant offered to sell to a grocer in Little Rock some cigarettes at $1 a carton. This offer aroused the suspicion of the Little Rock grocer, who notified the Little Rock police headquarters. Two police officers went at once to the grocer’s place of ibusiness, which, was near the end of the South Highland street car line. Appellant was there when the officers arrived, and he boarded a street car when he saw them. The officers took the same car, and saw appellant go to the rear end of the car and throw a package under the rear seat. The officers got the package and placed appellant under arrest. The cigarettes were shown to the North Little Rock grocer and were identified by him, the identification being made by his cancellation mark on the revenue stamps.

The chief of detectives of North Little Rock testified that appellant was delivered into his custody about eight hours after the burglary had been committed, and that he noticed at the time that appellant’s right thumb was injured. He asked appellant about the cigarettes, and appellant told him that he found the cigarettes in a concrete basement at the north end of the Missouri Pacific bridge in North Little Rock. The officer found upon inspection that there was no basement at this point. One of the gloves found on appellant at the time of his arrest had fresh blood on it.

Appellant testified in his own behalf and admitted having the cigarettes in his possession. He stated that he had found them in Little Rock, and that the officer was mistaken in saying that he had said they had been found in North Little Rock. He further testified that he started to take the cigarettes to some “boys” in the penitentiary, and he admitted offering to sell them to the Little Rock grocer. When he saw the grocer go- to the ’phone, he thought an officer was being called, and not wanting to get into trouble again he threw the package containing the cigarettes under the car seat. On his cross-examination he admitted that he had been twice sentenced to the Arkansas penitentiary and to the penitentiary in Atlanta once.

This testimony fully sustains the conviction. Appellant was found in possession of property very recently stolen, and the jury evidently disregarded the explanation of his possession. Yelvington v. State, 169 Ark. 359, 275 S. W. 701.

As to the argument of the prosecuting attorney, it may be said that it does not appear from the bill of exceptions what the argument was, and we do not therefore know whether it was improper or not. Neal v. State, 156 Ark. 419, 246 S. W. 470. Appellant admitted on his cross-examination that he had been three times sentenced to the penitentiary, and it would not have been improper for the prosecuting attorney to discuss this fact in commenting upon appellant’s credibility as a witness.

No error appears, and the judgment must be affirmed. It is so ordered.


author: Smith, J.

text:
    Williamson v. Killough.
    Opinion delivered February 15, 1932.

      A. B. Shafer, Greed Caldwell, Williamson •<& Williamson, Sam Rorex and W. S. Atkins, for petitioners.

      R. V. Wheeler, S. V. Neely arid.Coleman $ Riddick, for respondents.
   Smith, J.

A petition for certiorari has been filed in this court, from which, with the responses thereto, the following facts are made to appear. On December 21, 1931, the county court of Crittenden County made five separate orders changing the lines between certain townships in that county, and one of the effects of each of said orders was to move a Democratic county central committeeman from his township into another. The changes made by these orders were as follows. By one of them the residence of Joe Summerville was changed from Mississippi Township to Proctor Township. The residence of E. D. Grooden was changed from Mound City to Jasper Township; the residence of P. J. Hixon was changed from Fogleman to Wappanocca Township; the residence of Les A. Barton was changed from Black Oak to Fogleman Township; and the residence of J. R. Hood was transferred from Tyronza to Black Oak Township.

On the same day on which these orders were made by the county court, the Democratic county central committee convened in special session, at which meeting the chairman of the committee refused to recognize the five committeemen hereinabove named, for the -reason that they, having been transferred out of the townships for which they had been elected, by the orders of the county court, were no longer members of the committee.

An appeal from this ruling of the chair was made, and nine committeemen, including the five sought to be disqualified, voted to sustain the appeal, and four committeemen voted to sustain the ruling of the chair. The chairman refused to- recognize the right of the five committeemen above-named to vote, and declared their offices vacant, whereupon these five, with fqur others; declared the office of chairman vacant, and by the same vote elected a new chairman, and the nine committeemen who voted to overrule the chair, including the old secretary of the committee, adjourned subject to the call of the new chairman. The old chairman and the four committeemen who voted to sustain his ruling remained in session and proceeded to elect successors to the five committeemen, whom they claimed had been ousted from office, together with a new secretary of the committee after which they sent a certified copy of their minutes showing such elections to the Democratic State Central Committee.

Thereafter these five committeemen whose residences had 'been changed from one to another township by the orders of the county court filed a petition in the circuit court for a writ of certiorari, praying that the orders of the county court he quashed. It was alleged by these petitioners that the purported orders of the county court were void for numerous reasons, among ■ others that they were made by the county judge, and not by the county court.

On February 1, 1932, an application was made to one of the judges of the circuit of which Crittenden County is a part for a temporary order preserving the status quo, and an order was made by the circuit judge which recited that a prima facie showing had been-made that the orders of the county court were void, and upon this finding it was ordered “that any and all persons are hereby restrained from recognizing any purported order of the Crittenden County Court purported to have been made on December 21, 1931, in the matter of changing township lines until the final hearing of this cause.”

Another proceeding of similar nature was filed, which included additional parties, in which the circuit judge made an order restraining the county clerk from entering’ the orders changing" the -boundary lines of the townships until the further order of the circuit court.

Thereupon this proceeding was begun in this court in the name of the chairman and secretary of the State Democratic Central Committee and the chairman and secretary of the Crittenden County Central Committee as reorganized, in which they prayed that a writ of certiorari issue directed to the clérk of the circuit court of Crittenden County commanding him to certify up to this court a certified transcript of all records in the Crittenden Circuit Court in the matter of changing township lines, and the two causes hereinabove referred to there pending, and “that, upon the coming in and inspection of said records, the orders therein made, to the extent they are beyond the jurisdiction of the circuit court as herein set out, be quashed, and that, pending the hearing upon such writ, a temporary restraining order issue prohibiting both the circuit judges of Crittenden County from proceeding further in either of said causes until the final order of this court, and for all other appropriate relief. ’

The records referred to have been brought up on certiorari and are now before us, and it is insisted that the orders of the circuit court staying all proceedings in the matter of the changed lines of the townships were void as being in excess of his jurisdiction.

In support of this contention, it is argued that the effect of the orders of the circuit court is to assume jurisdiction of a contest for places on the Democratic County Central Committee, a subject over which the committees of the party, State and county have exclusive jurisdiction, and over which the courts have no jurisdiction.

It is our opinion, however, that the circuit court has not acted without jurisdiction or in excess of its jurisdiction, as petitioners contend.

It must be remembered that the circuit court has appellate jurisdiction to review all orders of the county court, and, in the exercise of this jurisdiction, the power inheres to make such orders as appear to be appropriate. The circuit court has the jurisdiction, for instance, to decide whether the orders in regard to the township lines were void as not having in fact been made by the county court, just as it has the jurisdiction to determine that these orders, even if made by the county court, were erroneous as being an abuse of the discretion vested in the county court in this behalf. The circuit court unquestionably has the jurisdiction, upon hearing the appeals which have been prosecuted from the orders of the county court, to vacate those orders and set them aside as being an abuse of the discretion of the county court, and pending the hearing* of the appeal the circuit court has the jurisdiction to 'preserve the status quo.

These are, of course, elementary principles, which petitioners concede to be true, but which they say do not apply here for the reason that they are concerned only in the membership of the county central committee, which question they say is purely political, and one over which the courts have no jurisdiction whatever, and the case of Tuck v. Cotton, 175 Ark. 409, 299 S. W. 613, is cited to sustain this contention.

The cáse just cited was brought to contest the election of a township committeeman, and the suit was dismissed by this court on the ground that “the courts will not assume jurisdiction of contests for the offices of committeemen or delegates of a political party” to a convention of the party, for the reason that the law governing the primary election out of which the contest arose had not conferred jurisdiction on the courts to hear contests over an election for 'places on county committees.

The history of our primary election law is a matter of common knowledge. The case of Walls v. Brundidge, 109 Ark. 250, 160 S. W. 230, Ann. Cas. 1915C, 180, was one in which there was an attempt to contest in the courts of the State the nomination of the Democratic •party for the office of 'Governor, and in that case we reversed the action of ‘the Pulaski Chancery Court, which had assumed jurisdiction of the contest. The decree of the chancery court’ was reversed, for the reasons stated, that the question involved was political, and not juristic. However, an act was initiated and adopted by the people, which is referred to as Initiative Act No. 1, which appears at page 2287 of vol. 2 of' the Acts of 1917, which conferred jurisdiction upon the courts of the State to enforce the provisions of this initiated act.

The validity of this act is not'questioned, and the jurisdiction there conferred has been frequently exercised iby the courts of the State, as appears from the numerous reported cases by this court which arose under that act.

Section 12 of this act conferred the right to contest nominations in certain cases, and this § 12 of the initiated act appears as §§ 3772 and 3773, Crawford & Moses’ Digest. Section 3772, Crawford & Moses’ Digest, was construed in the case of Tuck v. Cotton, supra, and it was there held that § 3772, supra, which authorized contests of elections in certain cases, did not embrace committee places, for the reason that such places were not offices within the meaning of the law. It was said, however, that “the Legislature has the authority to give the courts jurisdiction in those matters,” and that the courts would exercise such jurisdiction as had been conferred.

The case of Tuck v. Cotton, supra, does not apply here, for the reason that there is no contest over the election of these committeemen. That the committeemen were duly elected, and for a term of two years, and that their terms have not expired, are undisputed facts; and it is also undisputed that they are committeemen unless the orders of the county court removing them from one township into another have the effect of vacating their places.

The election law is not silent, however, upon the subject of vacancies in committee places. Section 8 of the act, which appears as § 3764, Crawford & Moses’ Digest, deals with the subject of vacancies in delegations to conventions and in county committee memberships. It is made optional with the political party to avail itself of the provisions of the primary election law. The party may employ this law or not in the selection of its candidates, but, when the option has been exercised to employ the law for the purposes intended, the act must be followed, and it governs in all situations to which its provisions are applicable. The case of Tuck v. Cotton, supra, expressly recognizes that the power inheres in the Legislature to enact legislation for such supervision and control.

It was contemplated by this act that vacancies might arise in delegations to conventions called pursuant to the act and in the membership of the county committees elected under the authority of the act.

The primary election law requires the election of the committeemen by the voters at an election, and provides that only names of those certified as required by the act shall be printed on the ballot, unless no name has been certified, and provides who shall be eligible to be voted for, and that the election of ineligible persons to those offices shall be void.

The opinion in the case of Tuck v. Cotton, supra, quoted with approval the statement of the law appearing' in the chapter on Elections in 9 R. C. L., page 1088, § 98. In the preceding section of the same chapter it was said: “The dormant idea pervading the primary law is the absolute assurance to the citizen that his wish as to the conduct of the affairs of his party may be expressed through his ballot and thus be given effect, whether it is in accord with the wishes of the leader of his party or not, and so shall be put in effective operation in the primaries. In ether words, the scheme is to permit the voters to construct the organization from the bottom upwards, instead of permitting leaders to construct it from the top downwards. And, in order to accomplish this end, not only is it necessary to protect the right of party members to vote at the primary as ag’ainst unreasonable regulation, but also to protect the committeeman or other party officially elected thereat from being summarily ejected from his place in the party organization. So, where the primary law provides for party committees and the election of party committeemen, membership maybe gained in no way other than that provided by the statute, namely, by the suffrage of the party members at the'primary election. The committee cannot remove the committeemen so elected, and it is the duty of the court to give full force and effect to the legislative intent so manifested.”

As has been said, provision is found in the Initiated Act for filling vacancies, both in delegations to conventions and in committee memberships, and this provision is found in § 8 of the act, which appears as § 3764, Crawford & Moses’ Digest, and reads as follows: “The county conventions shall at said time declare the result of .said primary election and select delegates and alternates to all conventions. Provided, nothing in this act shall be construed to prohibit the State Central Committee from making any rules that it may think wise for the election of delegates to the National Convention, and said delegates may be elected before the primary election. No candidate for office, or office-holder, or deputy of an office-holder, shall be eligible to membership on county central committees, or as a delegate to county or district conventions, or as a. judge or clerk of any primary election. The selection of ineligible persons shall be void, and the vacancy filled as other vacancies are herein provided to be filled. Vacancies in the delegation to a convention, arising from death, absence, resignation or ineligibility, shall be filled by the alternates in the order of their selection, and, in absence of alternates, by the remaining members of the delegation. Vacancies in the central committee shall be filled by the committee.”

It thus appears that the statute has provided when vacancies can be said to exist and how they may be filled in either convention delegations or in committee memberships. There is no contention here that any vacancy has been created in the committee membership by death, absence, resignation or ineligibility. There has been only a change in the lines of the townships in which certain committee members resided at the time of their election, and no other question as to their eligibility is raised.

Under the statute the electors elect their committeemen, and they are elected for a definite time, and they have the right therefore to serve as such until, under the statute, conditions arise which constitute a vacancy. It is then and then only, that the central committee, as a body, is authorized to elect their successors.

While the members of the committee are elected in the township or city ward in which they reside, they become, upon their election, members of the county committee, and the authorities appear to be unanimous that after such election the right to discharge the functions of a committeeman is not affected by a subsequent change of boundary lines which would place the residence of the committeemen in another township or ward, and this change of lines does not automatically or otherwise affect the incumbent, but the committeeman, if he remains otherwise eligible, continues as such until his successor is elected pursuant to the provisions of the law regulating the election.

It is said that the changes of the township lines have removed certain justices of the peace, who are township officers, from the townships for which they were elected, into other townships, but this action did not operate to deprive them of their offices. Section 6395, Crawford & Moses’ Digest, reads as follows: “When a township shall be divided, and any justice of the peace of the original township shall fall into the new township, he shall continue to discharge the duties of a justice of the peace until his commission expires, in the same manner as if such township had not been divided, only his process shall be in conformity with the name of the township in which he resides. ’ ’

This statute, while applicable only to justices of the peace, is declarative of the principles of law which govern in the question here involved.

The case of State ex rel. Norwood v. Holden, 45 Minn. 313, 47 N. W. 971, arose under a statute of the State of Minnesota -which provided that the board of county commissioners should, after the Federal census of the population of the county, proceed to redistrict the county, and this action of the board, when taken, resulted in excluding certain commissioners from the districts of the county in which they had been elected as members of the county board before the census was taken. The question was raised whether the members who had been removed from the districts of the county in which they had been elected had ceased to be members of the board. In holding that these commissioners had not ceased to be members of the county board, the Supreme Court of Minnesota, speaking through Mr. Justice Mitchell, said: “In our opinion, an order redistricting a county is merely prospective in its operation as to the election and qualification of members of the board of commissioners, and iu no way affects the right to the office of those previously elected. There is’ nothing in the language of the statute to indicate that a redistricting is intended to have any retrospective operation. On the contrary, the language of § 94 favors the opposite view. The commissioner, it says, ‘must at the time of his election be a resident of said district and shall reside therein during his continuance in office.’ What this last clause has reference to is an actual change of residence, and not a change of district boundaries. The division of a county into districts is merely for election purposes. The duties of commissioners are not local, or to be performed in only a particular part of the county. On the contrary, they are merely members of an entire board which acts as such for the entire county. Any other construction would lead to the gravest abuses, and often entirely defeat the popular will as expressed at the polls. * * * It_seems that it was assumed that if relators had, by reason of the redistricting, become disqualified from taking their seats on the board in January, this created vacancies which the chairman and the boards of town supervisors were authorized to fill. But this was a mistake, for it would hot be one of the events the happening of which would create a vacancy under the provisions of Gen. St. 1878, C. 9, § 2. # * * The practical result, then, of respondents’ construction of the law is that it is in the power of a majority of the hoard of commissioners, by gerrymandering the county, to legislate out of office any two of their own number, or to keep out of office those who have been elected their successors, and hold onto the offices themselves for two years longer than the terms for which they were elected. There is nothing in the language of the statute which compels a construction leading to consequences so dangerous and unjust. ’ ’

A late case on the subject is that of Olsen v. Merrill, 5 Pac. (2d) 226, where, after an extensive review of the authorities, it was held by the Supreme Court of Utah that members of the board of education of cities of the second class are entitled to serve as members of the board for the remainder of their terms, notwithstanding an ordinance redistricting the city placed them outside the boundaries of the municipal wards for which they were elected.

See also, State v. Craig, 132 Ind. 54, 32 Am. St. Reps. 237; State ex rel. Atty. Gen. v. Board of Supervisors, 21 Wis. 449; State ex rel. O’Connell v. Nelson, 7 Wash. 114, 34 Pac. 562; People v. Markham, 96 Cal. 262, 31 Pac. 102; State v. Lake, 16 R. I. 511, 17 Atl. 552; State v. Swearingen, 12 Ga. 23; State v. George, 23 Fla. 585, 3 So. 81; State ex rel. Childs v. Marr, 65 Minn. 243, 68 N. W. 8; Standford v. Lynch, 147 Ga. 518, 94 S. E. 1001; State v. Craig, 132 Ind. 54, 16 L. R. A. 688, 31 N. E. 352, 32 Am. St. Reps. 237; Brungardt v. Leiker, 42 Kan. 206, 21 Pac. 1065; State ex rel. Connolly v. Haverly, 62 Neb. 767, 87 N. W. 959.

It is true these are cases where officers were removed by changes in lines from the ward or district or township in which they were elected, whereas in the instant case the committeemen are not officers, but that fact does not affect the legal principles which control. The controlling legal principle is that the committeemen were elected at an election made legal by the primary election law, and for a definite time not yet expired, and it is true also that upon their election they become county committeemen, although elected by townships or wards. Their functions are not confined to the township or ward in which they reside, but they, in conjunction with other committeemen similarly elected, are committeemen for the county, and changes in the lines of their townships or wards do not affect their eligibility, for the reason that such changes are prospective in their nature so far as the incumbents affected are concerned. We find no division in the authorities on this subject.

If, however, the rule were otherwise, the conclusion which we have reached would not be changed. It appears from the record before us that the circuit court found the fact to be, upon the applications for the orders preserving the status quo, that a prima facie showing had been made that the orders of the coiinty court were void, and for that reason all proceedings thereunder- should be stayed until the final determination of the validity of the orders on the appeals which have been prosecuted to the circuit court and which are there now pending and undisposed of. Certainly, if the county court had the authority to make the orders in question, the circuit court had the jurisdiction to review them. The circuit court has the same jurisdiction on appeal which the county court had originally, and the circuit court may make such orders as in its opinion the county court should originally have made. Horn v. Baker, 140 Ark. 168, 215 S. W. 600.

The appeals from the county court.to the circuit court are now pending and are undisposed of, and the orders of the circuit court which the petitioners here seek to quash are interlocutory and not final, and the practice has long been settled that an appeal does not lie from such orders.

In the case of Sanders v. Plunkett, 40 Ark. 507, it was held, to quote a headnote, that “The order of a chancellor at chambers, dissolving an injunction issued by him in vacation, is interlocutory and cannot be quashed by the 'Supreme Court on certiorari, nor appealed from until final judgment in the circuit court.”

In the opinion in this case Mr. Justice Eakin, for the court, said: “We cannot regard any mere interlocutory order of a judge at chambers, made in the cause, as final, in the sense of being subject to appeal. There must be a final order of the court itself upon the rights of the parties. Interlocutory orders are always subject to the control of the court, and remain so from term to term until a final adjudication upon the rights of the parties. Then the final order, perpetuating or dissolving them, becomes subject to appeal. The present application (for certiorari) is not an appeal.” For these reasons the writ of certiorari there prayed was denied. See, also, Mallett v. Hampton, 94 Ark. 119, 126 S. W. 92.

The case of Martin v. Hargrove, 149 Ark. 383, 232 S. W. 596, is. cited and relied upon by petitioners for the writ here applied for. That was a case in which the chancery court, on complaint of owners of land in an improvement district, had removed the commissioners, and had directed the receivers to take charge of the affairs of the district and discharge the duties imposed by law upon the commissioners. We quashed this order of the chancery court for the reason, there stated, that the court was without authority to remove the commissioners and appoint receivers in their stead. In other words, the order was void on its face.

We have here an entirely different situation. The circuit court has the undoubted jurisdiction to review the action of the county court, and this jurisdiction has not yet been exercised. It may transpire that, when this jurisdiction has been exercised, the circuit court will vacate and set aside the orders of the county court, in which event they will be as if they had never been made, and the entire subject-matter of this litigation would in that event be a mere moot question.

For the reasons stated the writ of certiorari prayed for will be denied, and the petition dismissed. It is so ordered.


author: Humphreys, J.

text:
    Weaver v. State.
    Opinion delivered February 15, 1932.

      U. G. May, for appellant.

      Hal L. Norwood, Attorney G-eneral, and Robert F. Smith, Assistant, for appellee.
   Humphreys, J.

Appellant was indicted- in the circuit court of Logan County, Southern District, jointly with Bill Shepherd and Minus Rankin for the crimes of burglary and grand larceny, and convicted on both counts in the indictment and adjudged to serve a term of two years for the burglary and one year for the larceny in the 'State Penitentiary, from which is this appeal..

The first assignment of error by appellant for a reversal of the judgment is that the court erred in overruling his motion for a continuance to obtain the- testimony uf Miron Wright to the effect that he (appellant) was not present and did not assist Bill Shepherd and Minus Rankin burglarize the store of J. W. Iiipp in September, 1931, and did not steal or receive any part of the.stolen merchandise. The record does not dis lose that appellant requested the court to rule upon the motion nor that the court overruled same. Had the court overruled the motion, it would not have constituted reversible error because the appellant did not state therein that he believed the testimony of the absent witness to be true, which statement is required by §§ 1270 ■ and 3130 of Crawford & Moses ’ Digest.

The next assignment of error is that the court erred in not continuing the cause because of the absence of ' other witnesses whose testimony would have shown that appellant was not in company with his co-defendants at the time they burglarized the store. A continuance was not requested by appellant on account of the absence of the witnesses referred to, and, having failed to ask a continuance on account of their absence, he is precluded from raising that question in this court for the first time. He' should have raised the question before the trial court.

Appellant’s next assignment of error for a reversal of the judgment is that the court overruled the demurrer to the indictment on the ground that one of the grand jurors who returned the indictment was ineligible because he had served on the petit jury within two years, which is prohibited by act 135 of the Acts of 1931. The failure of any of the grand jury to possess any of the qualifications required by law does not invalidate an indictment. Section 3030 of Crawford & Moses’ Digest; St. Clair v. State, 160 Ark. 170, 254 S. W. 473.

The last assignment of error for a reversal of the judgment is that appellant was convicted on the uncorroborated" evidence of his two accomplices. Bill Shepherd and Minus Rankin pleaded guilty, and, upon appellant’s trial, testified that the three of them burglarized the store, and that appellant received a part of the merchandise. Witnesses who" found the stolen goods testified that the tracks around the store and where the goods were -found showed that three persons were engaged in the burglary and grand larceny. The tracks were measured with a stick, and appellant’s foot was measured with the same stick in the presence of the jury. Minus Rankin lived in appellant’s home, and the three of them attended a musical and were drinking together the night the crimes were committed. The record also reflects that appellant had threatened to break into the store and had made plans to do so. The accomplices were sufficiently corroborated to support the verdict and judgment.

No error appearing, the judgment is affirmed.


author: Mehaeey, J.

text:
    Casey v. Smith.
    Opinion delivered February 15, 1932.

      Gentry \S Gentry, Garrigan & Monroe, Lemley •<& Lemley, John P. Vesey and W. S. Atkins, for appellant.

      O. A. Graves, for appellees.
   Mehaeey, J.

Appellant, as a citizen and taxpayer, began this suit in the Hempstead Chancery Court against the appellees, as directors of the Hope Special School District, praying that they be enjoined and restrained from incurring any further indebtedness or borrowing any money or issuing any warrants as directors of said district during the present fiscal year, except as may be necessary to pay the principal and semiannual interest payments, maturing on bonded indebtedness during the present fiscal year.

He alleged that on March 25, 1931, the bonded indebtedness of the district exceeded 7 per cent, of the total assessed valuation of all the real and personal property in said district, as shown by the last county assessment, and that said bonded indebtedness had been at all times since then, and is now, in excess of 7 per cent, of the assessed valuation of all property in said district. He alleged that the total non-bonded indebtedness, July 1, 1931, was $80,200, and that this was the maximum amount of said nonbonded indebtedness during said year, and all of this amount had been paid out of the year’s revenue except $25,000.

He further alleged that the nonbonded indebtedness and the amount set aside to pay principal and interest on the bonded indebtedness, falling due the remainder of the fiscal year, is $63,000, and that the total revenues which will be received by said district during the remainder of the fiscal year will not exceed $63,000.

He alleged that the directors were still operating the schools and incurring further indebtednéss, and that, in order to complete the school term, it would be necessary to incur further indebtedness, so that at the end of the present fiscal year, the nonbonded indebtedness of the district will aggregate $80,200 and that the directors proposed to continue the schools and incur other indebtedness until it aggregated $80,200, and, unless restrained, they would borrow from individuals and banks, or from next year’s revenues, and issue warrants therefor, to the amount of $80,200; that this sum would be in excess of the revenues for the remainder of the present fiscal year, and the next succeeding fiscal year, thereby causing plaintiff and other taxpayers to suffer great, and irreparable loss, and that he has no adequate remedy at law.

He alleged that the district did not.have power to do these things, and that the borrowing of money, as the directors proposed to do, was in direct violation of act 169 of the Acts of the G-eneral Assembly of 1931.

The appellees demurred to the complaint, stating: “First. The complaint does not state facts sufficient to constitute a cause of action. ■

“Second. The complaint does not state facts sufficient to entitle plaintiff to any of the relief prayed for therein.”

The court sustained the demurrer, and appellant re-, fused to plead further, and his complaint was dismissed. The case is here on appeal.

At the time act 169 was approved, the Hope Special School District had issued bonds, exclusive of interest, to the extent of 7 per cent, of the assessed valuation of the real and personal property in the district as shown by the last county assessment. The outstanding non-bonded indebtedness of the district was $80,200 on July 1, 1931. This sum was the maximum nonbonded indebtedness during the fiscal year preceding July 1, 1931.

The revenues of the district for 1931,1932 were used by the district in the payment'of the nonbonded indebtedness existing prior to July 1, 1931, reducing the non-bonded indebtedness to $25,000, and the schools had been operating by anticipating the revenues of 1932-1933.

The directors propose to continue the school for,the term by borrowing from 'banks, individuals, or from next year’s revenue, 'but not to exceed $80,200', maximum non-bonded indebtedness in the fiscal year ending July 1, 1931.

Act 169 provides that districts may borrow money and issue bonds for the repayment thereof from school funds, for the building and equipment of school buildings, mailing additions and repairs thereto,, purchasing sites therefor, and for funding any indebtedness created for any purpose and outstanding at the time of the passage of the act. Act 169, § 59, of the Acts of 1931.

Section 60 provides that: “No bonds shall be issued at any time that would make the total of outstanding bonded indebtedness of the district at that time, exclusive of interest, exceed 7 per cent, of the assessed valuation of the real and personal property in the district as shown by the last county assessment. This shall not prohibit bond issues refunding present bonded indebtedness that exceeds 7 per cent.”

It is first contended by appellant that the board of directors has no authority to borrow money for the operation of the schools. He cites and relies on Arkansas National Bank v. School District No. 99, 152 Ark. 507, 238 S. W. 630, where the court said: “It is the settled rule in this State that school districts have and can exercise only such powers as are expressly granted, and such incidental ones as are necessary to make those powers available and effective.”

Attention is called to some other cases, but it may be stated as the settled rule announced in all the cases, that school districts can exercise only such powers as are granted by the Legislature and such incidental powers as are necessary to the proper exercise of the powers granted. 'School districts derive all of their powers from the Legislature.

It is contended by the appellant that § 59 of act 169 of 1931 provides that the only power granted to borrow is for the things mentioned in said secltion,, namely the building' and equipment of school buildings, making additions thereto', purchasing sites therefor, and for funding any indebtedness created for any purpose and outstanding at the passage of the act. If this contention of appellant were correct, the board of directors would, of course, have no power to borrow money to operate the schools.

Section 97 of act 169, however, provides among other things: “Budgets for districts, having a city of 2,500 or more population, which employ a superintendent, shall be approved by the city superintendent and need not be submitted to the county board of education for approval, but shall be filed with the county superintendent for record, provided nothing* in this provision shall prevent any school board from borrowing money from banks, individuals, or from next year’s revenue, in order to provide funds in such amount that the maximum non-bonded indebtedness of their school district so incurred shall not be greater than the maximum nonbonded indebtedness of such districts was at any time during the preceding fiscal year.”

To ascertain the intention of the Legislature, we must consider the whole act, and each part or section must be construed in connection with every other part or section, so as to produce a harmonious whole. The part of § 97 quoted must mean something, and another portion of § 97 provides that in ease of an emergency the State Board of Education may grant special permission to a district to create a temporary current - indebtedness.

It was evidently the intention of the Legislature, among other things, to prohibit school districts from increasing their indebtedness, and, as stated in the act, the districts should conduct their financial affairs, so that, as soon as possible, they may be on a cash basis.

It is therefore provided in the act that, if it should become apparent that the schools cannot be operated for the remainder of the school year, without incurring more indebtedness than that represented by outstanding bonds and those that may be issued for buildings and the equipment, purchasing sites and repairing buildings, or the improvement of sites, it shall be the duty of the school directors to close the school, and cease paying teachers for the remainder of the year.

However, following this provision of the statute is another we have already referred to, which authorizes the State Board of Education to permit a district to create temporary indebtedness. Evidently it was not the intention of the Legislature to close the schools if this could be avoided. It therefore provided that permission might be given the districts to create temporary indebtedness to keep the schools going.

As we have already said, in construing statutes it is the duty of courts to ascertain the intention of the Legislature and to give effect to every part and section of the law. Miller v. Yell & Polk Bridge Dist., 175 Ark. 314, 299 S. W. 15; Hall v. Cartwright, 179 Ark. 1082, 20 S. W. (2d) 124; McDaniel v. Ashworth, 137 Ark. 280, 209 S. W. 646; Manley v. Moon, 177 Ark. 260, 6 S. W. (2d) 281; Ark. Taco Commission v. Crittenden County, 183 Ark. 738, 38 S. W. (2d) 318; Gill v. Saunders, 182 Ark. 453, 31 S. W. (2d) 748; McIlroy v. Fugitt, 182 Ark. 1017, 33 S. W. (2d) 719, 73 A. L. R. 723; McGinnis v. Gailey, 174 Ark. 1062, 298 S. W. 335; Summers v. Road Imp. Dist. No. 16, 160 Ark. 371, 254 S. W. 696; Miller v. Witcher, 160 Ark. 479, 254 S. W. 1063.

It is next contended by the appellant that the borrowing power of a district is limited to next year’s revenue. We do not agree with appellant in this contention. The act expressly limits the borrowing' power to the maximum nonbonded indebtedness at any time during the fiscal year. In the instant case the maximum amount was $80,200, and the power to borrow money under this provision of the statute is limited by this amount. The law provides that the district may borrow from next year’s revenue or from individuals or from banks, but the amount the district is permitted to borrow is not limited by the amount it might be able to borrow from any individual, or a bank, or next year’s revenue, but it is expressly limited to the maximum amount of the nonbonded indebtedness the preceding year.

The decree of the chancery court is affirmed.


text:
    Missouri State Life Insurance Company v. Fodrea.
    Opinion delivered February 15, 1932.

      Allen May and Rose, Hemingway, Cantrell d Loughborough, for appellant.

      Sam T. Poe, Tom Poe and McDonald Poe, for appellees.
   McHaney, J.

These separate appeals have been consolidated in this court, as they involve substantially the same questions for determination. . In each case there was a verdict and a judgment for $2,000 with interest, 12 per cent, penalty and an attorney’s fee of $500 on certificates of life insurance containing a clause providing that sum would be paid in case of total permanent disability of the insured before arriving at a certain age. In case 2366 the questions presented are (1) that the hypothetical question asked certain expert witnesses was improper; (2) that no penalty and attorney’s fee should have been assessed; and (3) that the attorney’s fee allowed was excessive. In case 2365, the questions argued are the same with the exception that no hypothetical question is involved. No question is raised as to the sufficiency of the evidence to support the verdict nor as to any instruction. We will discuss the issues in the order above stated.

Relative to the hypothetical question propounded to the expert witnesses, several objections were made to it, some of which the court sustained, and others overruled. We think it unnecessary to copy the question in this opinion as it is lengthy. It recites a history of his physical condition and seeks the opinion of the expert witnesses as to the character of ailment from which appellee is suffering. In the history of the case recited in the question, the following was objected to: “That examining physician suspected plaintiff was suffering from toxic poison from some source, caused by an infected tooth, and suspected he suffered from myocarditis, and treated him for same, prescribing digitalis, a heart stimulant.” This was based on the testimony of a non-expert physician, and was his diagnosis of the trouble. We think this not objectionable on the ground that it called for the opinion of the witness based on suspicions and conclusions of other witnesses or of other expert witnesses. Of course, it is not proper to incorporate in hypothetical questions the opinions of other expert witnesses, as facts and not opinions must be assumed in them. It is necessary to include the undisputed facts, and the facts assumed to have been established by the party propounding the question may be included, if relevant. Taylor v. McClintock, 87 Ark. 243, 112 S. W. 405; Newport Mfg. Co. v. Alton, 130 Ark. 542, 198 S. W. 120. Dr. Atkinson testified to the above facts, but not as an expert. The experts were not asked to base their opinion on the opinion of Dr. Atkinson, but on the facts as related by him. We think the other objection relating to an examination of appellee in the Missouri Pacific Hospital in 1925 is without merit. This fact was established by evidence not objected to, and could not have been prejudicial because too remote. It does not appear from appellant’s abstract that objection was made to the question on this ground, and, therefore, it is unavailing here. We conclude that the objections made to the question were properly overruled.

It is contended in both cases that the 12 per cent, damages and attorney’s fee were erroneously assessed, and that under § 6155, Crawford & Moses’ Digest, no damages and attorney’s fee should be assessed where defense is made in good faith and refusal to pay is based upon an honest and fairly debatable difference of opinion as to the law involved. It is conceded by appellant that this court has already taken a contrary view of the matter in Security Ins. Co. v. Smith, 183 Ark. 254, 35 S. W. (2d) 581, and, it is insisted, as thus construed, the above statute runs counter to,, the equal protection and due process clauses of the Fourteenth Amendment to the Constitution of the United States. "We do not ag-ree with appellant in this reg-ard, and we think the Supreme Court of the United States has decided the question adversely to appellant’s contention. Fidelity Mutual Life Assn. v. Mettler, 185 U. S. 308. 22 Sup. Ct. 662; Iowa Life Ins. Co. v. Lewis, 187 U. S. 335, 23 Sup. Ct. 126. Both of these cases construed the Texas statute, which is substantially the same as ours — requiring- life and health insurance companies who shall default in payment of their policies to pay 12 per cent, damages, together with reasonable attorneys’ fees, not to be in violation of the Fourteenth Amendment. In the latter case, Mr. Justice McKenna, sneaking- for the court, said: “Notwithstanding our decision in Fidelity Mutual Life Assn. v. Mettler, 185 U. S. 308, 46 L. Ed. 922, 22 Sup. Ct. 662, the plaintiff in error urges the unconstitutionality of the Texas statute, authorizing the recovery of damages and attorneys’ fees for failure of life and health insurance companies to pay losses. We are, however, entirely satisfied with the case and its reasoning. ’ ’ See Hartford Fire Ins. Co. v. Wilson & Toomer Fertilizer Co., 4 Fed. (2d) 835, certiorari denied 268 U. S. 704, 45 S. Ct. 639.

Moreover, this statute is a part of the insurance laws of this State and has been since 1905. It is one of the conditions under which insurance companies are authorized to do business in this State, and, by transacting business here, such companies impliedly at least agree to be bound by the act. Fidelity Mutual Life Ins. Assn. v. Mettler, supra; American Fire Ins. Co. v. King Lbr. Co., 250 U. S. 2, 39 S. Ct. 431.

In case 2365 appellee prayed judgment for $2,000 and interest from April 18, 1930. There was a judgment for $2,000, and the court allowed interest from December 3, 1930. Appellant contends that, since the demand was for more than the recovery, no damages and attorney’s fee should be assessed under the rule announced in Pac. Mut. Life Ins. Co. v. Carter, 92 Ark. 378, 123 S. W. 384, and numerous other cases since that time. We think the court correctly allowed the damages and fees in this case, as appellee recovered the full amount of the policy, the amount demanded, and-the court determined the amount due as interest. Interest followed as a matter of law on the amount recovered from the date appellant should have paid.

We think the allowance of attorney’s fees in both cases excessive when considered in comparison with allowances made in former similar cases. See Mut. Life Ins. Co. v. Owen, 111 Ark. 554,164 S. W. 720; Ætna Life Ins. Co. v. Spencer, 182 Ark. 496, 32 S. W. (2d) 310. Numerous other cases might be cited. The rule has been to allow about 10 per cent, of the amount of the recovery, but here there appears to have been considerable work done in the preparation and trial of the cases and we have reached the conclusion that 15 per cent, of the recovery, or $300 in each case, will be reasonable compensation.

We therefore modify the judgment in each case in this respect, and, as modified both will be affirmed.


author: MoHaney, J.

text:
    Lavenue v. Lewis.
    Opinion delivered February 15, 1932.

      O. E. Williams, for appellants.

      C. D. Atkinson and Earl TJ. Hardin, for appellees.
   MoHaney, J.

This lawsuit involves an attack on the will of the late B. F. Johnson, of Washington County (who died April 20, 1929,) on account of the alleged undue influence of his second wife, Mrs. Lydia Johnson, who predeceased her husband nearly four years, she having died December 25, 1925. By his first marriage B. F. Johnson had two children, J. O. Johnson and Vicie (Johnson) Arnett, both now deceased, and both leaving several children, appellant, Mrs. J. L. Lavenue being one of five children of J. O. Johnson the others being parties to this litigation. A paragraph in the testator’s will reads as follows: “Item 6. I have heretofore made advancements out of my property to my sons Bert B. Johnson and to J. O. Johnson, now deceased, which advancements have been fully equal to their respective interests in all of my estate, and because of such advancements so made by me, neither the said son, Bert B. Johnson, nor the heirs of the said J. O. Johnson, are to receive any interest in or share of my estate. ’ ’ Item 7 makes the same reference to the heirs of Hugh L. Johnson, another deceased son. Bert B. Johnson and Hugh L. Johnson were children of the testator by his second wife. At the conclusion of the testimony for appellants the court directed a verdict for appellees, upon which judgment was entered and this appeal followed.

The only question presented is whether the evidence was sufficient to take the case to the jury on the ground of undue influence of Mrs. Lydia Johnson. Mrs. Lavenue testified over objections that her father, J. O. Johnson, had received as advancements from her grandfather, the testator, only $1,000, and that he had not received his share of the estate. This evidence was incompetent under the rule stated in LeFlore v. Handlin, 153 Ark. 421, 240 S. W. 712. In that case similar testimony was held to be incompetent, the court stating: “The above testimony therefore was wholly incompetent, because it cannot be proved that the testatrix was mistaken in ‘a fact which she clearly stated in the will for the purpose of showing that her intention was really different from that which her language plainly expresses. Nor is such proof competent for the purpose of showing that, but for the mistake of fact, her intention would have been different and expressed in a different manner. ”

“The first great rule in exposition of wills (to which all other rules must bend) ” said' Chief Justice Marshall, in Smith v. Bell, 31 U. S. 68, “is that the intention of the testator expressed in his will shall prevail, provided it be consistent with the rules of law.” Over and over again we have said, the same thing in substance in cases too numerous to mention. “Every man,” said Judge Wood in Taylor v. McClintock, 87 Ark. 243, 112 S. W. 405, “has the untrammeled right to dispose of his property by will as he pleases, with only such limitations as the statute may impose. ’ ’ So here, the testator had the right to disinherit the J. O. Johnson heirs for the reason assigned in the will, or for any other reason, or without assigning any reason.

Although the testator was about 90 years of age at the time the will was executed, it is conceded that he had the mental capacity to make it, and his testamentary capacity is not questioned. Only the undue influence of the wife is charged. In McCulloch v. Campbell, 49 Ark. 367, 5 S. W. 590, the rule in this regard is thus stated: “As we-understand the rule, the fraud and undue influence which is required to avoid a will must be directly connected with its execution. The influence which the law condemns is not the legitimate influence which springs from natural affection, but the malign influence which results from fear, coercion, or any other cause deprives the testator of his free agency in the disposition of his property. And the influence must be specifically directed toward the object of procuring a will in favor of particular parties. It is not sufficient that the testator was influenced by the beneficiaries in the ordinary affairs of life, or that he was surrounded by them and in confidential relation with them at the time of its execution.” The above was quoted by Judge Battue in Smith v. Boswell, 93 Ark. 66, 124 S. W. 264, as was also the following from 3 Elliott on Evidence, § 2696: ‘ ‘ The influence of the husband over the wife, that of the wife over the husband, of the parents over the children, and of the children over the parents, are legitimate, so long as they do not extend to positive dictation and control over the mind of the testator.”

When considered in the light of these rules, the evidence wholly fails to show any undue influence of the kind the law recognizes. No doubt Mrs. Lydia Johnson had a great influence over her husband, the testator, and justly so. She had lived with him more than a half century at the time of her death, helped him to accumulate a fortune of nearly $100,000, bore him fourteen children, and, so far as this record discloses, made him a loving and lovable wife. Certainly she had an influence over him, but not an “undue influence,” within the meaning of that term in the law. • There was nothing wicked or malign about it, but, on the contrary, was just and proper, springing from that holy relation of husband and wife. Even though it may be said the evidence tends to establish the fact that she preferred her own children to those by a former wife and sought to influence * the testator’s benevolence in their favor, still it fails to show that she accomplished this end, as two of her own children were placed in the same category with the appellants, and one of them appearéd to be her favorite son. She was not present when the will was prepared by an eminent lawyer in Fayetteville, and there is nothing to show that she dictated its terms or had any control over the mind of the testator. Moreover, the testator made no change in the will after her death, although he lived and was mentally competent nearly four years thereafter.

We do not review the evidence as no useful purpose could be served thereby. The court properly directed a verdict for appellees, as there was no substantial evidence of undue influence in the making of this will.

Affirmed.


text:
    Graves v. Hollan.
    Opinion delivered February 22, 1932.

      Gaughcm, Sifford, Godwin & Ganghan, for appellant.

      Snodgress & Snodgress, for appellee.
   Smith, J.

This suit was brought in equity by appellee, Hollan, against appellant, Graves, to require an accounting of the profits earned in the purchase and sale of certain oil leases.

Appellee was an automobile salesman at Camden when drilling for oil began in that vicinity, and he became interested in the purchase and sale of oil leases, but was without capital on which to operate. He gave the following account of the beginning of his relations with Graves. He had contracted to buy some oil leases, for which he was unable to pay, and the persons from whom he had contracted to purchase were demanding their money. He made Graves a proposition that he would buy and resell the leases, and Graves should advance the money to pay for them, and if a profit were made it should be divided equally. His profit was dependent upon the resale of such leases as he bought. He told Graves that he had a contract for the purchase of a lease from a man named Poindexter for the sum of a thousand dollars, and that he had a contract to resell a half interest in the lease for the same amount.

Graves borrowed a thousand dollars from a bank at Camden, and the loan was made on his credit, although he required Hollan to join with him in the execution of the note to the bank covering this loan. The thousand dollars thus borrowed was deposited in the bank, and four hundred dollars of it was used to purchase another lease, referred to by the parties as the Wilson lease. The thousand-dollar note to the bank was payable in sixty days, and when it matured it was renewed by Graves alone, and later paid by him. Graves made Hollan a personal loan of sixty dollars and, in addition, paid all the expenses incident to the purchase of the leases, including the cost of the abstracts and the fees of the attorney for their examination.

At the time these leases were purchased a well, known as the Cox well, was being drilled on land nearby, and it was the drilling of this well which gave the leases their value. The title to 'both the Poindexter and Wilson leases was 'taken in the name of Graves alone, and Hollan said this was done because Graves and his wife were on the scene, whereas Hollan’s wife lived in Little Rock, and in buying and selling leases time was a material element, and they wished to avoid any delay in making a resale.

The Cox well came in dry, and this fact destroyed the value of both the Poindexter and Wilson leases, and they remained valueless until 1929, when another well, known as the McDonald well, in that vicinity was brought in as a producing well. This gave value to the Poindexter lease, and it was sold for $3,200, and this suit was brought to recover a half interest in the profit earned in its sale.

Appellee left Camden, and Graves testified that he neither saw nor heard anything further from him until after the McDonald well had been brought in. Hollan testified that he applied to Graves in 1923 for a statement of their account and offered to pay one-half of Graves’ loss. Graves denied this. He testified that in March, 1929, he again applied to Graves for a statement, and was corroborated in this respect • by a witness named Banks. Graves denied this statement also.

The Poindexter lease was dated October 22, 1922. The Wilson lease was dated November 2,1922. The sale of the Poindexter lease, out of which the profit was made, was executed on March 13, 1929. The testimony establishes the fact that Hollan was to buy and resell the leases, and he and Graves were to share in the net profits, and a decree was rendered in which it was held that Hollan was entitled to share in the net profits which arose from the sale of the Poindexter lease, and this appeal is from that decree.

We have concluded that this decree is erroneous and should be reversed for the following reasons. Hollan himself testified that time was an important element in the purchase and sale of oil leases, especially in unproved territory such as this was at the time the Cox well was being drilled. Both the Poindexter and Wilson leases had value while the Cox well was being drilled. Neither had value after that well came in dry, and they continued to be valueless until the McDonald well came, in as a producer nearly seven years later. In the meantime, the .joint note of Hollan and Graves for a thousand dollars matured, and was renewed, and was later paid by Graves alone. Hollan appears not to have been called upon to pay any portion of the note. Indeed, his original contract did not contemplate that he should furnish the money. The money was borrowed on Graves ’ credit. It was Hollan’s duty to resell the leases, and he did not do so except the undivided half interest in the Poindexter lease, the proceeds of which sale were used in the purchase of the Wilson lease. The balance was used in the part payment of the Poindexter lease. Nothing was coming to Hollan unless he sold the leases at a profit, and, except as stated, he did not resell either of them.

Graves paid the balance due the bank on the note and the expenses incurred in the purchase of the leases, including the cost of the abstracts and the attorney’s fees, amounting to $714.66. Up to the time of the resale of the Poindexter lease, Graves had therefore a net loss in the transaction of $714.66. The parties differ as to whether Hollan agreed to share this loss, but we accept Graves’ statement that he did not. We are led to this conclusion largely from a consideration of the fact that Hollan was under no legal obligation to do so under the terms of their original contract. Hollan’s contract did not obligate him to furnish the purchase money, but did require him to resell the leases. It was necessarily contemplated’ that this should be done expeditiously, for the reason stated that the value of these leases changed very rapidly.

The facts, as we find them to be, are that, after the Cox well came in dry, appellee ceased to be connected with the transaction and left the scene, and returned only a few times, and then not on account of these leases. His purchases appeared to be without value or prospect of profit. He admits that he did not sell the leases, and he did not testify that he attempted to do so, but he testified that he and one Reynolds discussed the question of drilling on the Poindexter lease themselves. This appears, however, to have been a mere discussion, to which Graves was not a party, and nothing came of it. At any rate, Graves was under no obligation to make this additional investment.

The-thousand-dollar joint note, the proceeds of which furnished the capital with which the first lease was purchased, matured, and was renewed by Graves alone, and was later paid by him, and had become barred by the statute of limitations when the McDonald well came in and the lease was sold. We con¡. lude therefore that the demand of Hollan for a share in the profits is stale, and that it is now inequitable to enforce it. He did not perform his agreement to resell the leases, and left his associate to bear alone a loss of $714.66 which Graves said he considered he had sustained during all the six years which elapsed after he had paid the note before he sold the lease.

We conclude therefore that the decree of the court below should be reversed, and it is so ordered, and, as the cause appears to have been fully developed, it will be remanded with directions to dismiss it.

Kirby, J., dissents.