author: Kirby, J.

text:
    National Surety Company v. Byrd.
    Opinion delivered June 3, 1929.

      Silas W. Rogers, for appellant.

      Align Smith, for appellee.
   Kirby, J.

This appeal is prosecuted by appellant company from a decree holding it liable as a surety on a receiver’s bond for the payment of certain money collected by the receiver and deposited in the Bank of Smackover, which failed, resulting’ in the loss of the amount deposited.

The original action was commenced by one partner against the other partners'to wind up the affairs of the partnership, and Homer T. Rogers was appointed receiver to take charge of the assets, and gave bond in due course, with the appellant company as surety. The bond was conditioned in the terms of the statute, “that he will faithfully discharge the duties incumbent on him and faithfully account for and pay into court * * * all moneys or assets which shall come to his hands as such receiver in the case.” The receiver made his final report showing ‘ ‘ cash not collectible in the Bank of Smack-over $583.66,” and asked that the surety be discharged from its liability on the bond for the loss of the money in the failed bank. Exceptions were filed to that part of the report asking his discharge from such liability.

Appellant insists that the receiver did only what any reasonably prudent man could have done under the circumstances, in making the deposit of the funds in his hands, as such receiver, in the bank, which later failed, there being no indication of its insolvency at the time, nor anything shown in the record to excite the suspicion of a reasonably prudent man that it was not solvent and a safe depository of the funds. He insists that the rule relative to the question should he the same as laid down by this court for the liability of administrators to account for and make settlement of their estates, as held in Harper v. Betts, 177 Ark. 978, 8 S. W. (2d) 464, 11 R. C. L. 158, 23 R. C. L. 81; 1 Tardy’s Smith on Receivers, 201.

The receiver is an officer of the court appointing him, and the condition of the receiver’s 'bond, as prescribed by statute, is different from that required of administrators, the receiver being bound to account for and pay into court all money or assets which shall come into his hands as such receiver, and in that respect like the bonds of the public officials, requiring them to account for and pay over money coming into their hands as such. Sections 1906, 2832, 10029, C. & M. Digest.

In State v. Huxtable, 178 Ark. 361, 12 S. W. (2d) 1, it was held that the county treasurer'and his bondsmen were bound to the payment of funds of a special school district deposited without negligence by him in a bank which failed, causing the loss of the fund, and notwithstanding the county court had allowed credit thereon in settlement of the treasurer’s account. It ivas there said:

“The general rule with respect to the liability of public officers and their sureties for the loss of public moneys is that where the statute, in express terms, imposes the duty to pay over public funds received and held as such, and no condition limiting that obligation is in the statute, the obligation thus imposed upon and assumed by the officer is absolute, and the plea that the money has been lost without his fault does not constitute a defense to an action for its recovery.” And also: “In short, the settled rule is that public policy requires that every depository of public money should be held to strict accountability. The obligation to keep safely the public money is absolute, without any condition, express or implied. Nothing but the payment of it when required can discharge the bond, unless by statutory authority. ’ ’

Appellant is a commercial surety, and held to strict accountability, and nothing but the payment, when required, by his principal, of the money coming into his hands as receiver, could discharge him, as the court correctly held. State v. Huxtable, supra; see also Glaflin Co. v. Gibson (Ky.), 54 S>. W. 439; Baldwin v. Owens (Ky.), 51 S. W. 440; State v. Chicago Bonding Co., 279 Mo. 535, '215 S. W. 20; U. S. Fidelity & Guaranty Co. v. Freedmmi (Ohio App.) 164 N. E. 800.

We find no error in the record, and the judgment is affirmed.


source: Caselaw Access Project

author: Kirby, J.,

license: Public Domain

text:
    Chicago, Rock Island & Pacific Railway Company v. Garrett.
    Opinion delivered June 3, 1929.

      TJios. 8. Buzbee, H, T. Harrison and A. 8. Buzbee, ' for appellant.

      W. R. Bonham, for appellee.
   Kirby, J.,

(after stating the facts). It is urged that the court erred in not directing a verdict in appellant’s favor, because the proof did not establish any negligence of appellant company sufficient to support the verdict. “The rule is that a verdict of a jury will not be disturbed by this court on appeal if there is any substantial legal evidence to support it, when viewed in its most favorable light to appellee and when given its highest probative value with all inferences reasonably deducible.” Standard Oil Co. of La. v. Hydrick, 174 Ark. 813, 296 S. W. 708; Hall v. Jones, 129 Ark. 18, 195 S. W. 399; Arkansas Land & Lbr. Co. v. Fitshugh, 143 Ark. 122, 219 S. W. 1022.

The testimony tended to show that the knot in the spliced rope was about up to the floor of the swinging scaffold, and that, when the end of the rope was untied by deceased to lower the scaffold, the knot caught in the space between the ends of the floor boards of the scaffold extending over the frame upon which they were nailed, and that, in lowering it, it slipped out and suddenly fell, jerking the rope from- the hands of the deceased as he attempted to lower it, dropping his end of the scaffold, throwing him among the braces of the bridge and into the river. It was also shown that it was not customary to splice the line by making a knot in it, and it was not safe to do so. There was no testimony indicating deceased had any notice that the rope had been spliced by tying a knot in it about twenty minutes before the accident occurred.

The court is of opinion that the jury was warranted in concluding that the splicing of the rope by tying the knot therein was the cause of the injury to deceased, making the scaffold or swing used -by him in the performance of his work unsafe, and that such inference is fairly and reasonably deducible from the testimony, and sufficient to support the allegation of negligence. Other cases holding negligence established by inference fairly deducible from the testimony, and not based on speculation or conjecture: St. L. S. W. Ry. Co. v. Rogers, 166 Ark. 389, 266 S. W. 281; Central Coal & Coke Co. v. Burns, 140 Ark. 147, 215 S. W. 265; St. L. I. M. & S. Ry. Co. v. Hempfling, 107 Ark. 476, 156 S. W. 171.

It is next contended that the court erred in giving instruction No. 1, allowing the appellee to recover if the defendant negligently failed to furnish the deceased with a reasonably safe scaffold, as alleged in the complaint, and deceased was caused to fall into the river and drown because thereof while he was in the exercise of ordinary care for Ms own safety, and had not assumed the risk, etc., without mentioning the other grounds of alleged negligence in failing to provide means or prevent the deceased from falling into the water, and negligently failing to provide a means of escape or rescue. The court instructed the jury, however, upon appellant’s request Nos. 6 and 7, that it could not take into consideration said allegations of the complaint, the case being submitted on the one issue, the- safety of the scaffold, the complaint alleging that the scaffold was made unsafe by reason of the knot in the rope. Neither is the instruction open to the objection that it assumes that the defects or dangers were not known to decedent, and were not open and apparent.

Neither was error committed in the giving of instruction No. 4 complained of, it not being open to the objection urged against it by appellant. It only told the jury that, while the employee assumes all the risk necessarily incident to his employment,'he does not assume the risk incident to the negligence of his employer or any other servant of the employer, unless the same was known to him, or open and apparent, and did not submit the question of deceased’s assuming the risk of defendant’s failure to provide a scaffold from which he could not fall, nor authorize the jury to find, considered with plaintiff’s instruction No. 1, for plaintiff, if it disregarded the theory of the injury being caused by the knot made in splicing the rope.

The other assignments of error appear to have been abandoned.

We find no error in the record, and the judgment is affirmed.


author: Mehaffy, J.

text:
    Yonts v. Public Service Company of Arkansas.
    Opinion delivered June 3, 1929.

      Hill, Fitzhugh & Brizzolara, for appellant.

      Evans & Evans, for appellee.
   Mehaffy, J.

The Public Service Company of Arkansas filed suit against Mrs. Victoria Yonts and another suit against Mrs. Ethel Bentley, for the purpose of condemning land of the appellants for use as a dam-site and reservoir to he constructed by appellee. The cases were consolidated and tried as one case in the circuit court.

The appellee had an ordinance authorizing it to construct a system of waterworks in the town of Boone-ville. The appellants owned land situated at the neck or mouth of a deep gorge, through which a creek ran. A dam was to be built at tbe neck of the gorge. The defendants’ lands extended some distance np the gorge and in the valley, which land was to be nsed for reservoir purposes. The land owned by the appellants was adapted for a damsite across the creek. The gorge, having almost perpendicular sides, came to a narrow neck; a creek supplying ample water flowed through this gorge and over lands owned by each of the appellants. The ap-pellee also ran. its pipe line across other lands of Mrs. Yonts in constructing its pipe line from its land to the town of Booneville, situated one mile from the reservoir.

According to the evidence, this was the only suitable place for a dam or reservoir anywhere in the vicinity of Booneville.

The jury returned a verdict for $30 per acre for the land owned by Mrs. Bentley, and $25 per acre for the land owned by Mrs. Yonts, and allowed nothing for the land taken for pipe line across the property.

Appellants filed a motion for a new trial, which was overruled, exceptions saved, and an appeal prosecuted to this court to reverse the judgment of the circuit court.

The appellee’s witnesses testified as to the value of the lands, fixing the value at from five to thirty dollars per acre, all of them testifying, in substance, that they fixed the value on the land for agricultural purposes. In addition to this, appellee introduced testimony showing the price paid by it for other lands in' the vicinity.

The appellants introduced expert witnesses, who testified about the situation of the land, and the narrow gorge, and its value for reservoir and damsite, one witness placing the value at $200 per acre, and the other at at least $100 per acre.

Appellant’s first contention is that the court erred in admitting testimony of witnesses who said that they fixed the value for agricultural purposes only, and knew nothing about the value of the land for a damsite. We think this testimony was competent. The measure of compensation, when property is taken for public use under the power of eminent domain, is the market value of the land, and it is therefore 'Competent, in ascertaining what the market value is, to admit any testimony that tends to show its market value. In speaking of the character of the testimony that is admissible for the purpose of showing the market value of the land, this court said:

“As a general guide to the range which the testimony should be allowed to assume, we think it safe to say that the landowner should be allowed to state, and have his witnesses to state, every fact concerning the property which he would naturally be disposed to adduce in order to place it in an advantageous light if he were attempting to negotiate a sale of it to a private individual. * * * In offering testimony on this issue, the owner was not limited to any pre-existing use of the land. If it was of little value as a farm, or for common uses, and was of great value as mineral land or as a townsite, that fact might be shown, though it had never been so used.” St. L. I. M. & S. R. Co. v. Theo. Maxfield Co., 94 Ark. 135, 126 S. W. 83, 26 L. R. A. (N. S.) 1111.

Althoug’h this testimony was competent, and might be considered by the jury for what it was worth in connection with other testimony, still the owner had the right to obtain the market value of the land, based upon its availability for the most valuable purposes for which it can be used, whether so used or not. In other words, while the testimony of these witnesses as to the value was admissible, the owners in this case had the right to a judgment for the market value of the land for a damsite and reservoir, and not for agricultural purposes. They had the right to have a .judgment for its value based upon its availability as a damsite and reservoir. Ft. Smith & Van Buren Dist. v. Scott, 103 Ark. 405, 147 S. W. 440; Gurdon & Ft. Smith Rd. Co. v. Vaught, 97 Ark. 234, 133 S. W. 1019; St. L. I. M. & S. R. Co. v. Theodore Maxfield Co., 94 Ark. 135, 126 S. W. 83, 26 L. R. A. (N. S.) 1111.

It is next contended by appellant that the court erred in admitting testimony as to what other lands in the vicinity cost plaintiff. This testimony was not competent. This court and many others have held that it is proper to admit testimony as to the price at which other lands in the vicinity sold, together with testimony as to the similarity or dissimilarity of the lands, but that means sales in the ordinary course of business, and not sales to the service company who were seeldng to condemn land for their dam and reservoir. Evidence showing what the company seeldng to condemn has paid for other lands would probably be taken by the jury as indicating the market value, when, as a matter of fact, it does not tend to show the market value of the land. A company condemning land might be willing to give more than it was worth and the owner of land might be willing to take less than it is worth, that is, less than its market value, rather than have a lawsuit. Moreover, when a company seeks to get land or condemn it for public uses, having the power to condemn, the landowner would probably come to some agreement with him rather than have a lawsuit, and this agreement would show a compromise rather than the market value of the land.

“What the party condemning has paid for other property is incompetent. Such sales are not a fair criterion of the value, for the reason that they are in the nature of a compromise. They are affected by an element which does not enter into similar transactions 'made in the ordinary course of business. The one party may force a sale at such a price as may be fixed by the tribunal appointed by law. In most cases the same party must have the particular property, even if it costs more than its true value. The fear of one party or the other to taire the risk of legal proceedings ordinarily results in the one party paying more or the other' taking less than is considered to be the fair market value of the property. For these reasons, such sales do not seem to be competent evidence of the value in any case, whether in a proceeding by the same condemning party, or other cases.” Lewis on Eminent Domain, 3 ed. vol. 2, § 667.
“One Lemaster, who was connected with the Union Railway Company, and who had estimated on the witness stand the property of Maudlin to he worth about $100 per acre, was asked about this sale, and, over the objection of the counsel of the Union Railway Company, was permitted to say that the land company received as the purchase price of this land $1,000 per acre. Other witnesses introduced by the plaintiff in error to testify as to the value of the Maudlin property were permitted, notwithstanding the objection of the counsel of the railway company, to testify fully as to that sale. ' A reversal is now asked upon the ground that this testimony was both incompetent and prejudicial. 'Under the facts disclosed, we think it was clearly prejudicial to the rights of the plaintiff in error, and it is equally clear that this testimony should not have come to the jury.” Coate v. Memphis R. Term. Co., 120 Tenn. 525, 111 S. W. 923.
“It is entirely apparent to us, and must have been to the jury, that some agreement had been entered into by which the owners of the north one-third of the ground had agreed to accept as compensation a sum fixed by the evidence for the petitioner as the market value of that property. The law is that it is not competent to prove what the petitioner has paid for other property purchased by it for use in the same enterprise. The property owner, realizing the power of the petitioner to take his property, may prefer to take less than the real value rather than incur the expense of a litigation, where he can in no event obtain more than its actual value. As is said by the authorities, such a sale is in the nature of a compromise, and, for that reason, is not a fair measure of value.” So. Park Commissioners v. Ayer, 237 Ill. 211, 86 N. E. 704.

There are many authorities to the same effect. While a few courts have held that testimony of this character is admissible, the weight of authority seems to be that it is not only incompetent, but prejudicial. The jury might very naturally conclude that the price paid for other lands by the petitioner would indicate a fair market value of the land sought to be condemned, and the testimony as to what the appellee had paid for other lands was therefore incompetent and prejudicial.

Appellee calls attention to the case of St. L. I. M. & S. R. Co. v. Theo. Maxfield Co., 94 Ark. 135, 126 S. W. 83, 26 L. R. A. (N. S.) 1111, and argues that this case sustains him in the contention that this testimony was admissible. In the case relied on hy appellee, however, the record does not show that there was any purchase by the petitioner of other lands to be used in the same enterprise, but all that it does hold is that testimony relative to the value of certain lands in the neighborhood of the land sought to be condemned is admissible hy way of comparison. And in this case, the sale of other lands in the community, made in the ordinary way, would be admissible. However, as we have already said, the appellants are entitled to the market value for any purpose for which the land can be used. This necessarily means the highest market value for any purpose to which it may oe devoted. The landowner is of course entitled to compensation for land used to lay pipe lines.

The court permitted the evidence of witnesses showing the price paid per acre for other lands purchased by appellee, to be used in the same enterprise. As we have already said, this was. error, and for this error the judgment must be reversed, and the case remanded for a. new trial. It is so ordered.


text:
    Houston Rice Company v. Reeves.
    Opinion delivered June 3, 1929.

      Joseph Morrison, for appellant.

      M. F. Elms, for appellee.
   Mehaffy, J.

The appellee brought suit in the Arkansas Circuit Court for $322, alleging that this amount was due him for brokerage commission for the sale by him for the Houston Bice Company of 4,025 pockets of rice to certain parties named. His complaint showed the amount of commission due for each sale, and as to four of the sales there was no controversy in any way. The appellant shipped the rice and the purchaser paid for it according to the contract made by appellee. The Wheeler Wholesale Grocer Company, however, refused to accept the rice shipped to it, and appellee claimed a commission upon this sale of $64.

The appellant answered, admitting the allegations of the complaint, but filed a counterclaim, alleging that appellee undertook, as broker, to sell the Wheeler Wholesale Grocer Company 800 pockets of rice at a price of 6 5/16 cents per pound. The appellee advised this appellant by wire that the sale was consummated, and confirmed the wire with written acceptance, and caused to be forwarded shipping instructions. It alleged that it complied with the contract, and that the Wheeler Wholesale Grocery Company refused to accept, and set up as a basis for their refusal that they had not contracted with the plaintiff for the purchase of the rice. They had filed no agreement. It also alleged that it immediately advised appellee by wire to secure the written confirmation, and that he failed or refused to do this, and that it was impossible to compel the Wheeler Wholesale Grocery Company to accept the rice, and that it' had to pay demurrage amounting to $66, storage amounting to $39.95, and that it had to sell the rice for 5 7/8 instead of 6 5/16 cents, thereby losing the difference, and asked .judgment against appellee for $496.77.

There was a judgment for the appellee for $278. Appellant filed motion for a new trial, which was overruled, and this appeal is prosecuted to reverse the judgment of the circuit court.

Appellant says there are two questions in the case. First, is a broker or agent liable to his principal for damages in failure to carry out principal’s instructions? And second, is there evidence in the record sufficient to support the verdict and judgment of the trial court?

We agree with the appellant that the agent is bound to the exercise of the utmost good faith towards his employer or principal. If one who undertakes the business of another is capable of managing it, and neglects to do so with proper care, and damages result from his failure to exercise proper care, he would, of course, be liable. There is no question in this case about the agent being capable. The only question is, was he guilty of negligence that resulted in a loss to the principal?

“Every one, whether designated agent, trustee, servant, or what not, who is under contract or other legal obligation to represent or act for another in any particular business or line of business, or for any valuable purpose, must be loyal and faithful to the interest of such other in respect to such business or purpose. He cannot lawfully serve or acquire any private interest of his own in opposition to it. This is a rule of commonsense and honesty, as well as of law.” Walthour v. Pratt, 173 Ark. 617, 292 S. W. 1017; Coyne Brothers v. Feazel, 129 Ark. 163, 195 S. W. 391; Wright v. Bennett, 150 Ark. 154, 233 S. W. 1089.

The broker in the instant case sold to the Wheeler Wholesale Grocery Company 800 sacks of rice, and notified the Houston Rice Company, whereupon the Houston Rice Company confirmed the sale, and sent to appellee contracts to be signed by the Wheeler Wholesale Grocery Company. If it were necessary to have these contracts signed before the shipment of the rice, then the appellant itself was guilty of negligence in shipping the rice before it received the signed contracts.

The evidence shows in this case that the appellee did all he could do; he received the contracts from the appellant, and immediately sent them to the purchaser to be signed, but they were not signed. The appellee could do nothing else. He could not compel, and it was not his duty to try to compel, the purchaser to sign the contract. It was his duty to present it or send it to him to be signed, just as he did, and the fact that the grocery company or purchaser failed to sign the contract certainly could not constitute negligence on the part of the broker.

Mr. Mooring testified that he forwarded the contract to the appellee to be signed, and that he had no record of ever receiving it back; that, after having sent the contract and failing to get it signed and returned, he shipped the rice to the Wheeler Grocery Company. Mr. Mooring also testified that they were at the time dealing with from 75 to 100 brokers, and that he had knowledge of the methods and customs of trade, and that the appellee, along with brokers in a good many other markets, usually and customarily secured the buyer’s signature on their sales confirmation blanks at the time the orders were placed by telegraph. He said, however, that there are a great many brokers in a good many markets that do not use those forms at all. He testified that, in so far as the Reeves Company is concerned, it was his knowledge that they almost always sent signed sales memorandum in connection with the bookings they handled for them. If that were the custom,- and the seller relied on that, then it was certainly negligent in shipping the rice before it received the signed memorandum. This witness also said that a very large portion of the rice crop is moved each year on sales consummated by telegraph on which no other contract or evidence exists. If this is true, if the contract rested on the telegraph messages, and no written contract was to be signed, then the Reeves Company certainly did all that it was expected to do. If, on the other hand, in order to consummate the sale and justify the seller in shipping the rice, it was necessary to have a signed contract, then in that event the Reeves Company, according to the evidence, did all that it could be required to do. In other words, we do not think that the evidence shows that the Reeves Company was guilty of any negligence.

In this case the parties waived a jury, and the cause was submitted to the court sitting as a jury, and the finding of the judge when sitting as a jury is as binding as the verdict of a jury, and cannot be set aside by this court if there is any substantial evidence to sustain it. The most that can be said in this case by appellant is that the evidence was conflicting. That being true, the finding of the court is conclusive.

As to the next question, that is, whether there was sufficient evidence to support the judgment, it is only necessary to say that the answer admitted the allegations of the complaint, and it was admitted that the sales claimed to have been made by the Reeves Company were actually made by it, and there is no controversy about the commission. Whether or not the appellee would have been entitled to a commission of $64 for the sale to the grocery company is not involved in this appeal, the appellee having taken no appeal as to it.'

There is in evidence a letter from the grocery company, which, whether written by the grocery company or not, would, we think, be sufficient to justify both parties in believing that the grocery company had purchased the rice and intended to pay for it. And that letter is addressed to Houston Rice Mills, Stuttgart, Arkansas, and is as follows:

‘ ‘ Gentlemen:
“Referring- to two cars of rice booked’ with you, in shipping- out will thank you to route in connection with the Frisco lines, care Seaboard at Birmingham, rates being- equal, etc. We especially want Seaboard routing-, as we are located on their tracks at Marion.
“Yours truly,
“The Wheeler Wholesale Grocery Company.”

This was signed in typewriter. It was, however, written on the letterhead of the grocery company; and, in addition to this letter, a letter was received from the railroad agent also* about routing- the shipment.

We have reached the conclusion that the evidence is amply sufficient to support the verdict" and judgment of the court, and the judgment is therefore affirmed.


author: McHaney, J.

text:
    Fordyce v. Hampton.
    Opinion delivered June 3, 1929.

      J. T. Richardson, for appellant.

      S. F. Morton, for appellee.
   McHaney, J.

This case was submitted to the chancery court on an agreed statement of facts, substantially as follows:

In 1882 the Southwestern Improvement Association, being the owner of a certain tract of land, platted same into lots- and blocks, streets and alleys, as the town of Fordyce. The plat thereof was probably filed with the recorder of Dallas County, but, not being acknowledged, was not placed of record, and no bill of assurance or deed of conveyance of streets and alleys was made to the town. Conveyances of said platted property, however, were made by it with reference to said plat. It conveyed lots 2, 3, 4, 5, 6, 7 and 8, in block 1 of the town of Fordyce, according’ to said plat, to J. E. Hampton, on December 19, 1885, by deed, which was duly acknowledged, filed and recorded. In 1886 Mr. Hampton built a residence on lots 4 and 5 in said block 1, and inclosed all of the lots with a fence, including the alley, as shown on the plat, and thereafter occupied all of said land as a home; “that he continued in open, actual, notorious, distinct and exclusive, peaceable and undisturbed possession of said alley between lots 2, 3, 4 and 5, and lots 6, 7 and 8, under a claim'of title from that time until his death, which occurred on the 21st day of July, 1922.”

On July 15, 1895, J. E. Hampton and the appellee, his wife, conveyed by warranty deed lots 6, 7 and 8, in block 1, according to said plat, to their son, J. E. Hampton, Jr.; that in said deed he did not convey to his son any portion of the alley, but that a fence was erected by Mr. Hampton, Sr., separating the lots he had sold his son from the alley and the other lots which he retained, thereby keeping the alley inclosed under a fence with that surrounding lots 2, 3, 4 and 5. .Lots 2, 3, 4 and 5 front in an easterly direction on Chief Street, and lots 6, 7 and 8 front in a westerly direction on Bust First Street, the alley in question lying between, and being inclosed at the north end, on account of the property to the north not being platted. Since the date of Mr. Hampton’s purchase, the- property to the north has been platted, and the alley, as shown on the plat, if opened, would enter a street. In 1904 the Southwestern Improvement Association executed a deed of conveyance to the town of Fordyce, in trust for the public, to all the lands included in the streets and alleys shown, laid off and marked on a plat, which was filed at the same time, and which is identical with the original pial, dedicating the same to the public use. In that deed of conveyance there was a clause providing that, when any street or alley shall cease to be used as such, then the same should revert to and become the property of the grantor. In 1907 the town of Fordyce was raised to a city of the second class.

Mr. J. B. Hampton, Sr., at his death in 1922, left a last will and testament, by which he devised lots 2, 3, 4 and 5, in block 1, city of Fordyce, and all that part of the alley extending through said block 1 which lies adjacent to said lots, to the appellee, who is his widow. This will was shortly thereafter admitted to probate, and is now of record in Dallas County.

On December 29, 1927, the appellee executed and delivered her deed of conveyance to lots 2, 3, 4 and 5, in block 1, in the city of Fordyce, to appellants, Robertson and Elliott, in which no mention was made of the alley, nor that it was made according to said plat; but appellee says it was not her intention to sell or convey to appellants any portion of said alley, while appellants say that they intended to buy, and supposed that said conveyance included, the west one-half of said alley adjoining said lots, subject to an easement of the city of Fordyce, for the use of said land as a public alley, but nothing was said by either party in the negotiations for the sale and purchase of said lots with reference to the alley. Appellants are still the owners of the land conveyed by said deed.

It was further agreed that the appellee and her husband, from whom she derived title, “have been in the actual, open, notorious, distinct and exclusive, peaceable and undisturbed possession of said tract of land embraced in said alley, under claim of title, ever since the same was inclosed by the said J. E. Hampton, and that said alley has continuously been inclosed with a fence” up to the time she conveyed to appellants; that, immediately after the purchase by appellants of the property, they erected a garage and filling station thereon, tore down the fence on the north, west and south sides of said lots and at the south end of said alley, and left standing the fence at the other end of said alley; that, after the building was erected, appellants began to use said alley on the east of said lots, and defendant immediately protested, but, when they continued to use the alley, she again inclosed it by setting up a row of posts on the west and south sides thereof, and connected the posts by chains. But it is agreed that the acts of user on the part of appellants were not sufficient to interrupt the running of the statute of limitations.

It was further agreed that there were no reservations or exceptions in the deed from the Southwestern Improvement Association to J. E. Hampton, or in the deed from Hampton and wife to their son, or in the deed of appellee to appellants, and no mention is made in any of said deeds of said alley; that it would be to the special interest and benefit of appellants and for the convenience of the public that said alley be opened; that the alley has never been separately assessed for taxation.

Appellants thereafter brought this action, in which the city of Fordyee joined, for a mandatory injunction requiring appellee to remove said obstruction from said alley, and for a restraining order permanently enjoining her from further obstructing said alley or interfering with the plaintiffs and the public in use of same.

The court found the issues in favor of the appellee, and dismissed the complaint for want of equity.

Up until the passage of the act of May 28, 1907, Acts 1907, p. 1147, which provided that thereafter no person could acquire title or right of possession to any alley, street or public park, or any portion thereof, in any city or incorporated town in this State, by adverse possession or adverse occupancy, this court had many times held that title by adverse possession could be acquired as against such municipal corporations to streets and alleys. •

In Fort Smith v. McKibbin, 41 Ark. 45, it was held that municipal corporations are bound in like manner as individuals by the statute of limitations; and that adverse possession of an alley in a city for the statutory period will give title to the occupant, and bar the city. See also Helena v. Hornor, 58 Ark. 151, 23 S. W. 966; Mebane v. Wynne, 127 Ark. 364, 192 S. W. 221; Gathright v. State, 129 Ark. 339, 195 S. W. 1069; Little Rock v. Jeuryens, 133 Ark. 126, 202 S. W. 45; Madison v. Bond, 133 Ark. 527, 202 S. W. 721; and Little Rock v. Galloway, 162 Ark. 329, 258 S. W. 356.

The act of March 21, 1885, Acts 1885, p. 92, exempting cities from the statutes of limitations as to streets and other public places, applied only to cities of the first class. Section 7570, C. & M. Digest, applies to all municipalities. The possession therefore by Mr. Hampton of the alley in question, as set forth in the agreed statement of facts, constituted adverse possession, and the seven-year statute of limitations precluded the city of Fordyee from maintaining this action to compel the opening of .the alley, as his possession had ripened into title many years prior to the act of May 28, 1907, above referred to.

Tlie next question we are called upon to determine is, did the conveyance by the appellee of lots 2, 3, 4 and 5, in block 1, town of Fordyce, convey any interest in the alley to the appellants, Robertson and Elliott? It is the contention of appellants that, conceding that appellee had acquired title to the alley by adverse possession of herself and her grantor, her conveyance of the lots to appellants, Robertson and Elliott, without specifically excepting the alley, carried the title to them to the median line thereof, even though it had long since ceased to be an alley, was never anything more than a paper alley, and never having been used as such. Appellants rely principally upon the decisions of this court in Dickinson v. Arkansas City Improvement Co., 77 Ark. 570, 92 S. W. 21, 113 Am. St. Rep. 170, and Matthews v. Bloodworth, 111 Ark. 545, 165 S. W. 263. These cases and others cited are not in point. It is true that it is well settled in this State that a conveyance of land by lots and blocks carries the fee to the middle of the existing streets and alleys on which they abut, subject to the right of the public to use the same as highways, provided there are no specific words describing the property evidencing a different intent. But this rule applies only to existing streets and alleys at the time of a conveyance. When Mr. Hampton acquired this property, in 1885, there was an alley shown on the plat of the property, as heretofore stated. He immediately inclosed it, acquiring title to it by adverse possession, and never, since the platting o'f the addition, has the alley been used as such by the public. It became his property the same as if he had bought it and paid for it. The alley as shown on the plat, after the lapse of seven years from its inclosure by Mr. Hampton, ceased to be and exist as an alley in fact, but it was a separate piece of property owned 'by Mr. Hampton, in addition to the lots he had purchased from the Southwestern Improvement Association. At the time Mrs. Hampton sold to the appellants there was no alley in fact, and they were pnt on notice of its private ownership, because in his will, which was duly probated, he specifically gave the strip of land, 20x200 feet, shown on the plat as an alley, to Mrs. Hampton, showing that at that time he regarded it as his property, and not as a public way. Therefore when Mrs. Hampton conveyed, describing the property as lots 2, 3, 4 and 5, in block 1, appellants acquired only the area covered by those lots, and acquired no interest in an adjacent piece of property which Mrs. Hampton’s grantor had acquired by adverse possession.

We do not find that this court has heretofore decided the exact question now before us, and the diligence of counsel has not cited any such case of our own. The courts of other States appear to be divided on the question, but we think the weight of authority, as well as the better reasoning, is in accord with the views herein expressed. Thus, in Sanchez v. Grace M. E. Church, 114 Cal. 295, 46 Pac. 2, the court said:

“The conveyance olf land bounded by a highway is presumed to carry title to the median line of the way, but there is no reason in a like presumption to include land which has formed, but forms no longer, part of a highway; * * * there is therefore no more reason to say that any part thereof passed under the designation of those lots in the deed, than for extending the scope of that description to adjacent land — if such there had been — which never was impressed with the highway use; more especially since neither party claims that plaintiff owned the fee in any part of said land before its vacation as a highway.”

In White v. Jefferson, 110 Minn. 276, 124 N. W. 373, the court used this language: person, and lot 24 to another person, and the space between the two to a third person. It- is immaterial in what order of time such transfers were made. If the strip was granted 'before the lots, the intention would he certain; if afterwards, equally clear. What had been a street would be mere land. It would be taxable as land, and so descend. Its transfer would be subject to the appropriate section of the statute of frauds. That it was not numbered nor properly named on the plat would be wholly insignificant. The case would be the same as if no street had ever existed, and, instead of being designated as ‘street/ the tract had been marked ‘sand hole/ or ‘mound/ or any other name, or had had no name. The land which had been a street assumed exactly the same legal status as any other land which had not been impressed with a public easement.”

“Where, however, the street has been vacated while the original proprietor owns the lots in question, the situation is substantially different. On vacation of a street in a case like the one at bar, he owns lots 23 and 24 and the space between in fee simple. He can transfer the whole tract, or any part of it, or transfer lot 23 to any

'There is a note to the case of White v. Jefferson, in 110 Minn. 276, 124 N. W. 373, 32 L. R. A. (N. S.) 778, discussing a long list of cases supporting the doctrine announced in the named case, and the commentator says that the rule announced therein finds ample support among the authorities. We therefore hold, as did the learned chancellor who tried this case, that the complaint was without equity.

Affirmed.


author: Butler, J.

text:
    Pulse v. McGregor.
    Opinion delivered June 3, 1929.

      Jonas F. Dyson, for appellant.

      Ross Mathis, for appellee.
   Butler, J.

The appellant, Pulse, was the owner of two twenty-acre tracts of land in section 15, township 5 north, range 2 west, in Woodruff County, Arkansas, one being the west half of the southwest quarter of the southwest quarter and the other the south half of the southwest quarter of the southeast quarter. A judgment was rendered against Pulse in an action for debt, an execution was issued and levied on the west twenty, which was in due time sold by the sheriff, and his deed issued to the purchaser after the time for redemption from sale had expired. Pulse, the judgment debtor, brought this suit, alleging that the lands levied upon and sold were a part of his homestead, and that the deed executed by the sheriff was a cloud upon his title, and prayed for its cancellation.

The two twenty-acre tracts mentioned are all the lands owned by Pulse. His dwelling is situated on the east twenty, near its western boundary, and there are a few acres cleared on that tract, the remainder being wet and unfit for cultivation. Pulse is a farmer, and the greater part of the land which he cultivated was on the west twenty. The chancellor denied his prayer for cancellation and dismissed his bill for want of equity, and he has appealed.

At an early date in the history of this court Mr. Chief Justice ENglish, speaking for the court, defined a homestead as that “part of a man’s land and property which is about and contiguous to his dwelling- house.” Tumlinson v. Swinney, 22 Ark. 400. That definition has been adhered to and reiterated from time to time by this court, without any exception having been made, and in the case of McCroskey v. Walker, 55 Ark. 303, 18 S. W. 109, Mr. Chief Justice Cockrill, after having reviewed the decisions of this court, held that a homestead could not be claimed in noncontiguous lands.

The appellant cites the case of Stuckey v. Horn, 132 Ark. 357, 200 S. W. 1025, as holding contrary to the rule announced in McCroskey v. Walker, supra; but in that case the homestead right had attached before it was separated by the railroad right-of-way which ran across the tract of land, thus separating it. Moreover, the fee to the land occupied by the railroad as its right-of-way never passed from the homestead owner, the railroad only having acquired an easement therein. Thus the fee remained whole and undivided in the owner. The facts in the case of McCroskey v. Walker, supra, and in the instant case are much alike; in the one, the tracts of land were separated by a distance of a mile, and in the case now under consideration by a distance of three-eighths of a mile.

We think, on the authority of the decisions referred to, the decree of the chancellor is correct, and it is affirmed.


text:
    Westbrooks v. State.
    Opinion delivered June 3, 1929.

      McCowuell & Jackson, for appellant.

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

On tbe 7th day of February, 1929, an indictment was returned against the appellant, charging him with the crime of incest. The case was called for trial on the 13th day of February following. On that day the appellant presented his motion for continuance, with proper averments as to diligence, etc., and for cause alleged that two witnesses, who had been duly served with subpoenas in the case, were absent without his procurement, connivance, or consent; that they were sick, and unable to appear. He set up the expected testimony of these witnesses in his motion. It was shown by the certificates of physicians and by the testimony of witnesses that these witnesses were sick with influenza. As to one, Mrs. J. E. Cannon, the doctor certified that she would not be able to go out of the house for a period of five or six days, and as to the other, Mrs. Willa Ransom, no indication of the time at which she might leave her home was indicated in the certificate of the doctor or the testimony of witnesses.

The court, on presentation of the motion, made an order passing the case until the 15th, and made the further order that the defendant might take the depositions of the witnesses named in his motion for continuance. On the 15th the motion for continuance was overruled, and defendant saved his exceptions, and the cause was tried. The jury found the defendant guilty, and assessed his punishment at three years’ imprisonment in the State Penitentiary.

There are only three assignments of error insisted upon in this court as grounds for reversal, i. e., the refusal of the court to grant continuance, the admission of incompetent testimony, and the refusal of the court to give appellant’s prayer for instruction No. 1, and the giving of instruction No. 2 by the court on its own motion.

The only direct evidence in this ease on the part of the prosecution was that of the prosecuting witness, the daughter of the defendant, who testified specifically and positively to a number of acts of misconduct on the part of the defendant, and, as the evidence shows that she was not sixteen years of age at the time several of the acts were committed, there was no corroboration necessary to warrant a verdict. Indeed, the corroboration, while we think it would have been sufficient had she been more than sixteen years of age, was wholly circumstantial in its nature, and not very convincing. We think that the jury must have reached its verdict upon the testimony of the child.

It is evident from the record that the defendant was given little time for preparation for trial. This might have been due, in part, to the extreme indignation .aroused against the defendant because of the nature of the crime and the story repeated by his alleged victim. All of this made it the more important that the defendant be given every reasonable means to present whatever. defense he might have, and the permission to take the depositions of the absent witnesses could not preclude defendant from his constitutional rights to have the personal attendance of the absent witnesses.

It is not often that the discretion of the trial judge in refusing to grant a motion for continuance will be disturbed, but in this case the evidence of the two women, ■witnesses for the defendant, who were unable to attend on account of illness, is material. As set up in the motion, Mrs. Cannon would have testified, if present, that, within a short time, some thirty or forty days before the convening of the court, the prosecuting witness told her that her father, the defendant in this case, had never had sexual intercourse with her, but that a number of other young men had had; that it was nobody’s business, and she was going to protect them. The witness Mrs. Ransom would have testified, if present, that, at about the same time as that narrated by Mrs. 'Cannon, she and the prosecuting witness had a conversation of like character, in which she made the same statement to her.

As we have before seen, all of the direct testimony on the part of the State was that of the' prosecuting witness. In view of that fact, we think the testimony of these two women was of the utmost importance to the defendant. The case is ruled by the case of Jones v. State, 99 Ark. 394, 138 S. W. 967. In that case the prosecution was for assault with intent to rape, and the direct testimony for the prosecution was confined to that of the prosecutrix, who stated the circumstances in detail as to time and manner of the alleged assault. When the case was called, the defendant moved for a continuance because of the absence of three witnesses; one, Mrs. Berry-man, it was alleged, would testify, if present, that, in a conversation with the prosecutrix, she stated that Mac (defendant) had not treated her wrong, and that he had really done nothing to her; that the drawers, which she said Mac had torn on her were the drawers of Tom Me~ Gough’s little daughter. Another witness, Mase Mc-Gough, would also have testified, if present, to a similar conversation with the prosecutrix. The court overruled the motion for a continuance, but permitted the defendant to read the testimony of one of the witnesses taken at the former trial of the cause, and refused to allow her alleged testimony as set forth in the motion to be read. The court also permitted the attorneys for the defendant to read part .of the testimony of -the other witness as set out in the motion for continuance, and instructed the jury to consider this testimony the same as if the witness had been present and testified. The jury returned a verdict of guilty. Mr. Justice Wood, in his opinion reversing the case, used the following language, which we think is applicable to the facts in the case at bar:

“iBut in this case it cannot be said that justice has been done and that the rights of the defendant were not sacrificed in refusing the motion for a continuance, for the reason that appellant had brought himself fully within' the requirements of the law in his endeavor to procure the attendance of his witnesses. The presence of these witnesses in person was very material to his defense, as shown by the testimony set up in the motion. This testimony, if true, would necessarily show that the testimony of the prosecuting witness was false. The conviction of the appellant could not have been secured except upon the testimony of the prosecuting witness and her uncle, Marvin McGough. The testimony of Mrs. Berryman, and likewise of Mase McGough, if true, would have shown that the prosecutrix told them there was nothing in the charge against the appellant, that he had really done nothing to her, and, in effect, showed that, according to her statement, the charge was one trumped up by herself and her mother to get rid of her stepfather. Had these witnesses been present in person before the jury and given their testimony, their appearance and manner of testifying might have impressed the jury that their testimony was true, and therefore have caused them to wholly disbelieve and disregard the testimony of the prosecutrix. The appellant, having exercised all the diligence that the law required to procure the attendance of these witnesses, could not be forced into trial and have the purported testimony of the witnesses, as set forth in the motion and the alleged testimony of the witness Mrs. Berryman, as given in a former trial, substituted for the testimony of the witnesses in person before the jury. * * * The ruling of the court, we think, under the circumstances of this case, was erroneous, and was tantamount to a denial of the appellant’s right, under the Constitution, to have compulsory process for obtaining witnesses in his favor.”

As the case must be reversed for the error of the court in refusing to grant the motion for continuance, we deem it unnecessary to discuss the other assignments of error, as the matters complained of, if improper, will not likely occur again. The case is reversed, and remanded.


author: Hart, C. J. Smith, J.

text:
    Gregory v. Cockrell.
    Opinion delivered June 10, 1929.

      J. G. Williamson, Lamar Williamson and Adrian Williamson, for appellant.

      Pace & Davis and Patrick Henry, for appellee.
   Hart, C. J.

This appeal is hy landowners adversely affected hy a decree of the chancery court holding valid a special act of the Legislature of 1929, repealing- in part a special stock law by excluding from its provisions all that part of Ashley County east of Bayou Bartholomew. The Legislature of 1921 passed a special act to provide for a stock law and to regulate the operations of same in Chicot County and all that part of Ashley County lying east of Bayou Bartholomew. Special Acts of Arkansas, 1921, p. 209.

At the g’eneral election held on October 5, 19‘26, there was voted on and adopted an amendment to the Constitution which reads as follows: ‘‘The General Assembly shall not pass any local or special act. This amendment shall not prohibit the repeal of local or special acts.” Castle’s Supplement to Crawford & Moses’ Dig’est of the Statutes of Arkansas, p. 22.

Pursuant to the provisions of this amendment to the Constitution, the Legislature of 1929 passed an act repealing the above-mentioned special act, in so far as it is applicable to that part of Ashley County lying east of Bayou Bartholomew. The repealing section of the act contains a proviso that it should not be construed so as to repeal or amend any part of the original act as is applicable to any part of Chicot County. The act was approved February 21, 1929, and is special act 42 of the Acts of 1929.

At the outset it may be stated that the legislative power is the authority to make laws and to alter and repeal them, and there is no limitation upon the right of the Legislature to repeal or modify at its pleasure a law passed by it, except as limited or restricted by the Constitution of the State or the Constitution of the United States. Hence it is sought to uphold the decree, upon the rule that, under our Constitution, there is no such thing as an irrepealable legislative act, and that the constitutional amendment having failed to prohibit the Legislature from repealing and amending local or special laws, it still has that power. We need not pass upon that important question, for the amendment under consideration expressly provides that the amendment shall not prohibit the repeal of local or special acts. In this connection it may be stated that'there is a difference between the repeal of a statute and an amendment to it. This difference is clearly and comprehensively stated by the Supreme Court of Alabama in State v. Hubbard, 148 Ala. 391, 41 So. 903. Mr. Justice Tyson, in discussing the subject, said:

“A repeal is one thing’, and an amendment is quite another and different thing’. A repeal of a statute involves necessarily a change in the law; this is true, whether it be the only statutory enactment on the subject dealt with in the repealed act. Would any one contend that a statute in derogation of the common law was an amendment of it, simply because it altered or changed it? We think not. If not, it cannot be asserted with any show of logic that, because an independent act, full and complete within itself, repeals by implication any portion of a statutory system, it is amendatory of the remaining statutes of that system, to which no reference is made. It is undoubtedly true that such an act alters or changes the system; but this change or alteration is and must be ascribed to the repeal wrought by the independent act, and not to the change or alteration consequent upon the repeal. So also an amendment involves some change or alteration in the existing statute law, and may also operate as a repeal of some of its provisions; but such change or alteration made by the amendment is direct and not consequential, as is the case of a repeal, and therefore the difference between the two is plain. There is also another marked difference. An amendment may not, and often does not, operate as a repeal, but merely as an addition to the statute of which it is amendatory. This can never be the effect or operation of a repealing statute, whether the repeal be by implication or be direct. A repeal is properly defined to be the abrogation or destruction of a law by a legislative act. Amendment in legislation is ‘an alteration or change of something proposed in the bill or established as law.’ Bouv. Dictionary.”

The repealing act under consideration is an independent act cf legislation, and does not in any way affect the provisions of the original act, except by abrogating it as to that part of the territory in the original act which lies in Ashley 'County east of Bayou Bartholomew. The primary meaning of the word “repeal,” as used in speaking of the repeal of a statute, is, as its etymology imports, that the statute has been recalled or revoked. “To repeal” signifies the abrogation of one statute or some of its particular provisions by another. Jessee v. DeShong (Texas Civ. Appeals), 105 S. W. 1011. The case of Butte & B. Consol. Min. Co. v. Montana, Ore Purchasing Co., 24 Mont. 125, 60 Pac. 1039, is cited, which supports the holding. Hence a majority of the court is of the opinion that the power to repeal given by the amendment carries with it the power to repeal the original act in part by taking away from its terms that part of the territory embraced in the original act in Ashley County lying east of Bayou Bartholomew, and leaves unaffected by the repeal the whole of Chicot County as contained in the original act.

Counsel for the appellants cite and rely upon the case of Bankenberg v. Black, 200 Pa. 629, 50 Atl. 198. In that case the Supreme Court of Pennsylvania held that the special .act under consideration, providing “that there shall he elected in each county, coextensive in boundary with a city of the first class, three persons to serve as members of the hoard of revision of taxes,” etc., contravened the prohibition in the Constitution against the passage of any local or special law regulating the affairs of counties, cities, etc. The reason was the description could not apply either at the present timé or in the proximate future to any county hut Philadelphia. The court said for that reason the act was distinctly local and special. The court further said that the act was not a repeal of a prior act hut only of a part of the prior act, and in such a manner as to amount merely to an alteration of the local law. In winding up the discussion the court expressly stated that the act of the .Legislature was not repealing an old local law but was making a new one. It will be noted, however, that the court expressly recognized the principle that the right to repeal an act includes the power to repeal only a part of it.

Here no change was made in the provisions of the original act, and it remains in force in Chicot County precisely in the same form and under the same terms it did when the act was originally passed. The repealing act took away that part of the territory embraced in the original act which lies in Ashley County east of Bayou Bartholomew and left the whole of Chicot County in the act unimpaired and unaffected hy the repealing act. Hence the repealing act was an independent act of legislation, and in no wise whatever altered, changed or modified the terms of the original act, so far as they applied to Chicot County, which was the territory left subject to the terms of the original act.

Again, it is insisted that the decree should he reversed under the principle announced in State ex rel. Childs v. Copeland, 66 Minn. 315, 69 N. W. 27, 34 L. R. A. 777, 61 Am. St. Rep. 410. In that case the Supreme Court of Minnesota held that a special law relating to cities could not he partially repealed by a special law, and that the same result could not he accomplished by a local option law, which has merely the same effect. In that case the constitutional amendment under consideration contained the following: ‘ The Legislature may repeal any existing special or local law, but shall not amend, extend or modify any of the same.” We need not consider whether that opinion is sound or unsound, for it was dealing with a provision in a constitutional amendment which is materially different from our own. As we have already seen, there may be a difference between the repeal in whole or in part of a special or local law and an amendment thereto which alters or changes its terms.

It is also insisted that the judgment must be reversed because the repealing act under consideration violates § 23 of article 5 of our Constitution, which provides that no law shall he revived, amended, or provisions thereof extended or conferred by reference to its title only. We do not think the act in question violates that section of the Constitution. The act is complete, and its meaning plain and unambiguous. It does not attempt to change, alter, or in any wise modify the original act. It was an independent act of the Legislature, and simply repealed in part a former act of the Legislature by taking away from its provisions a part of the territory embraced in it. This being true, the repeal effected by the act in no sense amended the original act; and the repealing act does not fall within the terms of the section of the Constitution just referred to. White River Lumber Co. v. White River Drainage Districts of Phillips and Desha Counties, 141 Ark. 196, 216 S. W. 1043; Boyer v. State, 141 Ark. 84, 216 S. W. 17; Poe v. Street Improvement District No. 340, 159 Ark. 569, 262 S. W. 616; Farris v. Wright, 158 Ark. 519, 250 S. W. 889.

We find no reversible error in the record, and the decree will therefore be affirmed.

Smith and Mehaffy, JJ., dissent.

Butler, J., not participating.

DISSENTING OPINION.

Smith, J.

The act held constitutional in the majority opinion is a local or special act, and the question is whether the General Assembly has been deprived of the power to enact such legislation.

The constitutional amendment here reviewed consists of two complete sentences. The first is that: “The G-eneral Assembly shall not pass any local or special act. ’ ’ If this were all, it would not be contended that the General Assembly could pass the act. But, after saying, in language which is too emphatic and unambiguous to admit of doubt, that the number of local or special acts shall not be augmented by the passage of others, the inhibition against local or special legislation was relaxed to the extent of permitting the repeal of any existing local or special act.

The General Assembly was deprived by the 'Constitutional Amendment of all power on the subject except to repeal existing special or local acts. Obviously a purpose of the amendment was to promote uniformity in legislation, and this purpose was to be subserved (a) by prohibiting the passage of additional local and special legislation, and (b) by repealing laws which had caused diversity.

The original local fence law has not been repealed. It is still the law. It has only been amended to make it more local or special law than it was before, by making it apply to a smaller territory. The character of the amended act as a local or special law is more pronounced now than it was before it was amended, because it applies to a smaller portion of the State.

At § 229, page 427, Lewis’ Sutherland Statutory 'Construction (2 ed.) it is said: “Existing general laws required to have a uniform operation cannot be amended so as to interrupt their uniform operation. Though special acts may be repealed, parts of a special or local law may not be repealed where the effect is to intensify the special character of the act.”

If we are not mistaken in assuming that a purpose of the amendment was to promote uniformity and to lessen diversity in legislation, the act under review should fall as an intensification of the special character of the act which it amended.

The writer and Mr. Justice Mehaeey therefore dissent from the conclusion of the majority that the act of 1929 is constitutional and valid.


author: Hart, C. J.,

text:
    Warren v. State.
    Opinion delivered June 10, 1929.

      Gustave Jones and J. H. Wharton, for appellant.

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

(after stating the facts). The information was filed under § 2585 of Crawford & Moses’ Digest, which is as follows: “If any person shall knowingly and willfully obstruct or resist any sheriff or other ministerial officer in the attempt to serve or execute any writ, warrant or process, original or judicial, in discharge of any official duty, in case of felony, or any other case, civil or criminal, or in the service of any order or rule of court, in any case whatever, he shall he deemed guilty of a misdemeanor, and on conviction shall he fined in any sum not less than fifty dollars, and may also be imprisoned not exceeding six months. ’ ’

The State relies upon United States v. McDonald, 26 Fed. Cas. 1074, to affirm the judgment. In that case, in construing a similar act of Congress, the court said the offense includes obstruction or resistance to an officer in attempting to execute a writ of attachment, and that holding the attached property after levy and seizure is part of the execution of the process. In that case the deputy marshal who served the writ of attachment made an arrangement with the defendant, McDonald, to leave the attached property on his premises, in the charge and custody of one James H. Hubbard. Afterwards it was alleged that McDonald and others did forcibly, willfully and unlawfully take and remove a large portion of the property from possession of Hubbard. The court-said that the marshal had the right to appoint a custo.-dian of the attached property and to hold it by the hands of such custodian. Hence it was held that any obstruction of or resistance to Hubbard as such custodian was obstruction of and resistance to the marshal.

In the case at bar the property was left in charge of the defendant in the attachment suit. The officer who levied the attachment made arrangement with him to gather the cotton and haul it to the gin. It is true that the officer later wrote him that this arrangement was not satisfactory to the plaintiff in the attachment suit, and that he would make other arrangements about picking and ginning the cotton, still the defendant never relinquished his possession of the crop, 'but gathered it while it was in his own possession. The defendant was not guilty of any indirect or circuitous impediment to the execution of the process by taking the attached property from the possession of the officer or of a custodian in whose charge the officer had left it. The language of the statute is to “knowingly and willfully obstruct or resist any sheriff,” etc. This means to obstruct or oppose the officer, and not merely to defeat the execution of the process by being guilty of contempt of court or maybe some other crime. In order to sustain the conviction, the defendant must be guilty of the offense charged, and not of some other offense. As sustaining this view see Davis v. State, 76 Ga. 721. There the sheriff levied an execution on two oxen as the property of the defendant in execution, and left them in the field of a friend as his agent to take care of them. The defendant privately took and carried the oxen away during the absence of the officer and of the person in whose care they were left.. The trial court held that these acts of the accused were obstructing an officer in the execution of legal process within the meaning of the statute, which was substantially in the same language as our own. The Supreme Court reversed the judgment, and, after quoting the statute, said:

“The word ‘obstruct’ must be construed with reference to the other words in the statute — ‘resist or oppose.’ It is found in the same company with ‘resist and oppose,’ which mean force. The word ‘obstruct’ means to oppose, according to Webster; to obstruct an officer means to oppose that officer. It does not mean to oppose or impede the process with which the officer is armed, or to defeat its execution, but that the officer himself shall be obstructed. It is opposition to the officer, and these words, ‘obstruct,’ ‘resist,’ or ‘oppose,’ have nearly the same meaning, as used in the statute, and the word ‘oppose’ would cover the meaning of the words ‘resist’ or ‘obstruct’ as they are therein used, and they all mean the same thing. ’ ’

It follows that the judgment will he reversed, and the cause will be remanded for further proceedings according to law.


author: Smith, J.

text:
    Wallis v. Magnet Cove Rural Special School District.
    Opinion delivered June 10, 1929.

      N. A. McDaniel, for appellant.

      D. E. Waddell, Joe W. Kimzey and R. Farmer Tackett, for appellee.
   Smith, J.

The residents of common school districts in Hot Spring County known as Magnet Cove, Meadow View and Butterfield filed petitions with the board of education of that county to consolidate these districts into a rural special school district to be known as Bural Special School District No. 8. These petitions were presented to the board of eduoation on July 16, 1928, and an election was ordered to be held on July 26.

Citizens of Meadow View School District gave notice that they would apply for a restraining order to prevent the holding- of this election, and on July 21 another petition was filed by residents of Magnet Cove and Butter-field districts, praying that those districts be consolidated. The prayer of this petition was granted on the day it was filed, and an election was ordered to be held on the - question of the consolidation of these two last-named districts into a rural special school district. This election was held, and, ■ excepting one resident of District No. 4-5, known as the Butterfield District, only electors of District No. 8 — or the Magnet Cove District — ■ voted. A unanimous vote was cast for consolidation.

Certain residents of the Butterfield District brought suit in the circuit court to contest this election, and, as grounds therefor, alleged numerous irregularities in connection with the petition ordering the election and in holding it. The circuit court dismissed this suit upon the ground that the contest had not been filed within fifteen days after the date of the- election, before the board of eduoation, as required by § 8878, C. & M. Digest.

The order dismissing that suit was entered October 1, and on October 6 suit was brought in equity against the persons who had been elected as directors at the election on July 31 to prevent them from discharging the duties of directors of the consolidated rural special school district. The charges of irregularities and fraud were renewed in this complaint, and it was alleged that the order of the board of education calling the election which was held on July 31 was void as being unauthorized by law. This suit was dismissed by the chancellor as being without equity, and an appeal has been prosecuted to reverse that decree.

It may be said that the judgment of the circuit court in dismissing the action pending there, in which the validity of the election was raised, is conclusive of all questions concerning the regularity of this election or of fraud in holding it. The circuit court had jurisdiction to determine these questions, and the judgment of the court, until set aside by its own order or reversed by this court, is final and conclusive. But the action of the circuit court in dismissing the contest as not having been taken in time is not conclusive of the question of the power of the hoard of education to order the election. That question has not been determined.

In the case of Cooper v. McCoy, 116 Ark. 595, 173 S. W. 413, it was said:

“It is well settled that a former judgment in order to be a 'bar must have been a decision of the merits of the cause. In Smith v. McNeal, 109 U. S. 426, (3 S. Ct. 319), the court, quoting from Hughes v. U. S., 4 Wall. 232, said: ‘In order that a judgment may constitute a bar to another suit it must be rendered in a proceeding between the same parties or their privies, and the point of controversy must be the same in both oases, and must be determined on its merits. If the first suit was dismissed for defect in pleadings or parties, or a misconception of the form of the proceeding, or the want of jurisdiction, or was disposed of on any ground which did not go to the merits of the action, the judgment rendered will prove no bar to another suit.’ ” See also Sauls v. Sherrick, 121 Ark. 594, 182 S. W. 269; Quisenberry v. Davis, 136 Ark. 115, 206 S. W. 139; Howard-Sevier Roacl Imp. Dist. v. Hunt, 166 Ark. 62, 265 S. W. 517.

We are of the opinion that the board of education had no power to make the order on July 21 calling the election to be held July 31, for the reason that, at the time the order was made, there was an unrevoked order of the board calling an election to be held, affecting a portion of the same territory, on July 26.

Section 8835, C. & M. Digest, reads as follows: ‘ ‘ When an election has been called under the provisions of this act, no election can be ordered on another petition embracing the same territory or any part thereof until an adverse vote has been bad on tbe first petition, or the time for holding the election first called shall have passed without said election being held.”

The obvious purpose of this section of the statute was to prevent just such confusion as has occurred here. The board of education might, of course, revoke an order calling an election, and if this were done there would be no order calling an election; but, if the order is not revoked or set aside, the power does not exist in the board of education to call another election embracing the same territory, or any part of it, until an adverse vote has been had, or the time for holding the election first called shall have passed. Here the second election was called before there had been an adverse vote on the first petition and before the time for holding the election first called had passed. There was therefore no authority under the law to order the second election when the board made that order, and the election held thereunder was a nullity. In the case of Simpson v. Teftler, 176 Ark. 1087, 5 S. W. (2d) 350, it was said that “any election held without authority is a nullity.”

It was stipulated by opposing counsel that the chairman of the board of education “would'testify that the board at no time made an order revoking the election called upon the- first petition, but that, after the notice for the restraining order had been served upon them and the directors of each district, it was agreed by the board that that election be abandoned and not held. ’ ’

The board can only act when convened as such. There must be a meeting at which all are present, or of which all have notice, and a formal order of the board, such as that of July 16, can only be rescinded or revoked by the vote of a majority of a quorum of the board at a board meeting. No such action was taken, and the election of July 31 was therefore held without authority of law, and was a nullity.

The decree of the court below will therefore be reversed, and the cause will be remanded with directions to the chancery court to enter a decree 'conforming to this opinion.


author: Humphreys, J.

text:
    Washington County v. Broyles.
    Opinion delivered June 10, 1929.

      John 8. Combs and W. N. Ivie, for appellant.

      W. A. Dickson and Price Dickson,lor appellee.
   Humphreys, J.

Appellee filed a claim in the county court of Washington County for damages in the sum of $1,500, occasioned by an order of the county court establishing a State highway, pursuant to the petition of the State Highway Commission, over and across a thirty-acre tract of land adjoining the town of Farmington, upon which he resided, and which was planted in a vineyard, then hearing. The order, omitting the land described therein and which embraced the land condemned across the thirty-acre tract involved herein, is as follows:

“In Re State Highway No. 45, section 4 State Highway Commission, ex parte. In the matter of petition of State Highway Commission for changes of State order, Highway No. 45, section 4.
“On this 7th day of December, 1927, is presented to the court the petition of Dwight H. Blackwood, State Highway Commissioner, asking for changes in whole or in part of State Highway No. 45, section 4, which is a part of the State Highway system located in this county, said road being commonly known as the Fayetteville-Prairie Grove Road, as follows:
“Petition for changing and widening State highways.
“Comes the State Highway Commission of the State of Arkansas, and represents to this court that the public road known as the Fayetteville-Prairie Grove Road, and as State Highway No. 45, section 4, is a part of the State Highway system, and is located in this county; that, for the purpose of constructing, improving and maintaining this road most economically, and for the best service to convenience, welfare and safety of the public, it is deemed necessary by the State Plighway Commission of the State of Arkansas that the location and width of said road be changed in whole or in part in accordance with the following description: (Description omitted).
“Wherefore, the premises considered, the said State Highway Commission asks for an order of this court, under the provisions of § 5249 of Crawford & Moses’ Digest, making snob necessary changes in location or width of right-of-way, in whole or in part, that the said road shall he as hereinbefore described.
“Respectfully submitted,
“State Highway Commission for the State of Arkansas.
“By Dwight H. Blackwood, Chairman State Highway Commission.”

The claim was presented to and disallowed by the county court on July 2, 1928. On July 16 thereafter appellee herein filed • an affidavit and bond for appeal with the circuit clerk of said county from the order of the county court disallowing- his claim, upon which the following order appeared:

“Piled July 16, 1928. Appeal allowed. Bond approved this July 16,1928. County clerk ordered to certify record. Pat Johnson, circuit clerk.”

A complete transcript of the proceedings and dis-allowance of appellee’s claim in the county court was filed and the cause docketed in the circuit court, where it proceeded to trial, without further pleadings, upon testimony introduced by the parties and the instructions of the court, resulting in a verdict and consequent judgment in favor of appellee for $960, from which is this appeal.

Appellant’s first contention for a reversal of the judgment is that the circuit court acquired no jurisdiction of the cause, for the alleged reason that no affidavit was made, appeal granted, nor transcript filed. An examination of the record and transcript, as perfected by the clerk’s return of the writ of certiorari, reflects that all these things were done. Appellant argues, however, that the affidavit contained no prayer for appeal. As the circuit clerk allowed or granted the appeal, it was unnecessary that the affidavit contain a prayer for appeal. This court said in the case of Hempstead County v. Howard County, 51 Ark. 344, 11 S. W. 478, that: “If the statutory affidavit for an appeal is presented to him (clerk) without a formal prayer, and lie acts upon and causes the appeal to be perfected, the requirements of the statute have obviously been fulfilled, for the only thing the prayer could effect has been attained. ’ ’

The construction placed upon the statute in the case referred to was reaffirmed in the case of Tuggle v. Tribble, 173 Ark. 392, 292 S. W. 1020.

Appellant’s second contention for a reversal of the judgment is that, according to the undisputed testimony, appellee was not the owner of the thirty-acre tract in question, and for that reason has no right to recover damages for taking the land or injuring same. In this appellant is mistaken. Appellant bases its contention upon the fact that appellee testified that his wife inherited the land in question from her-father, W. H. Engles, who conveyed it to them many years ago, and the further fact that he was unable to state whether the deed referred to was made to his wife, himself, or to both of them. Appellee testified positively, however, that he was the owner of the land, and introduced a deed in corroboration of the ownership of said land from Isabella Engles, as widow of W. H. Engles, and in her own right, conveying -said land to him for the purpose of carrying into effect a contract entered into between W. H. Engles, in his lifetime, and appellee and his wife, Allie M. Engles Broyles. Appellant objected to the introduction of the deed, and now argues that the trial court committed reversible error in admitting it in evidence, on the ground that it was irrelevant and immaterial. We think it both relevant and material as tending to show that appellee owned the land. Appraisers were appointed by the county court to assess appellee’s damages to the land, who went upon and viewed it, and reported that appellee had sustained damages in the sum of $600 by reason of the establishment of the highway through and upon the 30-acre tract in question. There is therefore ample substantial testimony in the record tending to show that appellee was the sole owner of the land in question, and entitled to all the damages arising from the appropriation of a portion of same for a State highway.

Appellant’s third and last contention for a reversal of the judgment is that the county court’s order condemning- the land for State highway purposes is void because it does not appear on the face of the order that the purported changes in the State road or highway so as to' run it over and through the thirty-acre tract of land belonging to appellee were practicable and would be for the best interest of the county, and were of sufficient importance to the public to warrant a payment, if any, for the land taken. It is true, as suggested by appellant, that in the oases of Crawford County v. Simmons, 175 Ark. 1051, 1 S. W. (2d) 581, and England v. State Highway Commissioner, 177 Ark. 157, 6 S. W. (2d) 23, the court expressly found that the proposed changes in the road or highway were practicable and would be for the best interest of the county, and were of sufficient importance to the public to warrant the payment, if any, for the lands taken; but the findings were in the nature of a justification of the court’s action, rather than a finding of prerequisite facts necessary to the court’s jurisdiction in condemning land for road or highway purposes. The condemnation proceeding’s in those cases, as well as in the instant case, were under authority of § 69 of the Harrelson Hoad Act (Act Sp. Sess. 1923, p. 84), which provided that the State Highway 'Commission might call on the county court to change or widen, in the manner designated by § 5249, Crawford & Moses’ Digest, any State highway in the county, where the State Highway Engineer deems it necessary for the proper construction .of an improvement or maintenance of the road. Section 5249 of Crawford & Moses’ Digest does not require that the county court find, as a prerequisite to the exercise of such jurisdiction, that the proposed changes in the road would be practicable and for the best interest of the county, and of sufficient importance to the public to warrant the payment, if any, for the lands taken. Unless this statute had made those findings a necessary prerequisite to the exercise of such jurisdiction, it was unnecessary, in the instant case, for such findings to appear in the face of the judgment in order to give it validity.

It is.also urged that the order is void because the petition of the State Highway Commission was not accompanied by a bond signed by at least one of the petitioners and by other good and sufficient sureties, conditioned for reimbursing the county for any claim which might he sustained against it for land taken by the opening of such road or roads, and for failure to set the case for hearing and to give a thirty days’ published notice thereof in some newspaper published and having’ a bona fide circulation in said county, calling attention to the fact that such petition had been filed. This contention is based upon the assertion that § 5249 of Crawford & Moses’ Digest was amended by act No. 611 of the Acts of 1923 so as to require such a bond and notice. It will be observed by reading the amendment to said act that it applies only to petitions filed by as many as five citizens to open or change highways at their initial expense, and has no application whatsoever to petitions filed by the State Highway Commission under § 69 of the Harrelson Road Law.

No error appearing, the judgment is affirmed.


text:
    Boniface v. Boniface.
    Opinion delivered June 10, 1929.

      McMillen & Scott, for appellant.

      J. A. Tellier, for appellee.
   Kirby, J.

'This appeal is prosecuted from a decree refusing to grant appellant an alteration or reduction of the amount of alimony adjudged against him in his successful suit for divorce against his former wife, appellee.

Appellant, then a colonel in the United States Army, brought suit for divorce against appellee, his wife, alleging desertion as a ground therefor, and obtained a decree for divorce on August 2, 1921, in which he was adjudged to pay the wife, appellee, the sum of $250 per month for alimony, out of which she was required to stpport their 15-year-old daughter, and provided that said allowance should be decreased in proportion to any decrease in the base pay which may be visited upon the plaintiff. The appellant married about a year after the divorce was granted, and now has a wife and five-year-old son in the family, and has had much additional expense on account of taking care of his mother, now deceased. The daughter, whose maintenance was provided for in the allowance to appellee in the original decree, was first married and then divorced, and is married again, and is self-supporting. The colonel, appellant, is now on the retired list, and his salary is $375 per month. The parties had no property for division when the decree was rendered, and each of them appears to have acquired more debts and obligations than property since that time. Two or three applications have been made for a reduction of the amount of alimony required to be paid because of changed conditions since the first deoree was rendered, the last being rendered September 29, 1928, reducing the amount of the alimony from $200 per-month to $162:50 per month, the appellant being allowed to pay only $132.50 per month for one year in order to enable him to pay off certain debts, and required to pay the $162.50 per month from December 1, 1928.

The chancery court has the unquestioned power- to allow alimony to a wife against whom a decree of divorce is granted, and to alter the allowance of alimony at any time upon a proper showing made, the amount allowed being governed by the circumstances of the particular case. Section 3510, C. & M. Digest; Kurtz v. Kurtz, 38 Ark. 119; Prior v. Prior, 88 Ark. 302, 114 S. W. 700, 229 Am. St. Rep. 102; McConnell v. McConnell, 98 Ark. 193, 136 S. W. 931, 33 L. R. A. (N. S.) 1094; Johnson v. Johnson, 165 Ark. 195, 263 S. W. 379; Clyburn v. Clyburn, 175 Ark. 330, 299 S. W. 38.

It is insisted by appellant that the court erred in not reducing the amount of the allowance of alimony required to be paid by him materially further, to $75 per month, while the appellee insists that there have been no changed conditions in the circumstances of the parties that would warrant the reduction of the allowance of alimony below the sum of $187.50 per month, which she insists is in accordance with the agreement of the parties incorporated in the decree of divorce.

It is true that the decree provides that the sum of $250 per month should be paid for alimony, out of which the daughter was to be supported, and that “said allowance shall be decreased in proportion to any decrease in the base pay which shall be visited upon plaintiff.” There was no property, as already said, to be divided between the parties when the divorce was granted, and it appears from the record that appellee regarded her social position better because of the prominence of her father and brothers as officers in the United States Army than as reflected by her husband’s rank therein. She preferred life at Washington rather than the more strenuous life of the military camps and cantonments, where her husband, in the discharge of his active duties, was required to live, and refused finally to accompany him to the places where he was required to serve. Since the decree of divorce there has been almost a continuous effort on the part of appellant, because of changed conditions, to procure an alteration or reduction of the allowance of alimony, and resistance of such effort on the part of the wife, to the extent of making complaints to the Department and superior officers of appellant.

Appellant is no longer in active service, being on the retired list, and now has a wife, who cares for and lives with him, and a five-year-old son dependent upon him for support. If the obligation to support a divorced wife under the decree entered be held to continue so long as she shall live unmarried, even beyond the retirement of the husband from active service and until his death, as appears to be the case, the changed situation and condition of the parties and the circumstances of the particular case must control and govern the amount of alimony allowed.

After a careful examination of all these matters as shown in the record, we have concluded that the court erred in not reducing the amount of the allowance of the alimony to the sum of $100 per month herein. That will require the payment by appellant to his divorced wife, under existing conditions, of a little over one-fourth of the amount of his entire income or estate, and certainly he should not be burdened, under the circumstances of this case, nor himself, his wife and child deprived of substantially more than an equal share of the amount of his income distributed among all entitled to support therefrom. The chancellor erred in holding otherwise, under the existing conditions, and his finding of fact, so far as necessary for a proper determination of the matter, is contrary to the preponderance of the testimony. The decree will be modified in accordance with this opinion, fixing the amount of alimony allowed and required to be paid by appellant at $100 per ¡month. It is so ordered.

Appellee is not entitled, of course, to relief on the cross-appeal.