text:
    Green v. State.
    Crim. 3800
    Opinion delivered June 20, 1932.

      Gordon B. Carlton, for appellant.

      Hal L. Nonuood, Attorney General, and Robert F. Smith, Assistant, for appellee.
   McHaney, J.

Appellant was convicted on. an indictment for robbery of the Bank of Horatio, and sentenced to ten years in the penitentiary. • The only error complained of here is that the indictment does not allege facts sufficient to constitute the offense of robbery, and that his demurrer thereto should have been sustained. The indictment reads as follows: “The grand jury of Sevier County, in the name and by the authority of the State of Arkansas, accuse Fulton Green of the crime of robbery committed as follows, to-wit: The said Fulton Green in the county and State aforesaid, on the 10th day of April, A. D. 1931, unlawfully, wilfully, feloniously, violently and forcibly from the Bank of Horatio, Arkansas, a corporation, against its will and by intimidation did rob, steal, take and carry away $6,737.19 in gold, silver and paper money, lawful and current money of the United States of America and of the value of $6,737.19, the personal property of the said Bank of Horatio, Arkansas, a corporation, against the peace and dignity of- the State of Arkansas.”

By § 2410, Crawford & Moses’ Digest, robbery is defined as follows: “Bobbery is the felonious and violent taking of any goods, money or other valuable thing from the person of another by force or intimidation; the manner of the force or the mode of the intimidation is not material, further than it may show the intent of the offender.”

The argument made against the above indictment is that it fails to name a- natural person as the one from whom the property was taken by force or intimidation, and it is further urged that a corporation is incapable of feeling or expression and cannot be intimidated or put in fear. It is true the indictment alleges that the money was taken forcibly from the 'Bank of Horatio, a corporation, against its will and by intimidation, etc, but a corporation acts through its agents, and if the agents of the corporation were put in fear and the property was taken from them “unlawfully, wilfully, feloniously, violently and forcibly * * * and by intimidation,” we think it would be unnecessary to name the particular agent or person in charge of the property of the corporation in the indictment. The statute as above quoted provides that such a taking from the “person” of another is robbery. Section 9732 of the Digest provides that “the word person includes a corporation as well as a natural person.” Other sections of the digest, 3012, 3013, provide for the requisites and sufficiency of indictments. Section 3014 provides: “No indictment is insufficient, nor can the trial, judgment or other proceeding thereon be affected by any defect which does not tend to the prejudice of the substantial rights of the defendant on the merits.” The fact that the indictment failed to name any particular natural person in charge of the funds of the bank that was held up and robbed by appellant could not tend to the prejudice of his substantial rights. It was sufficient to charge that the bank, a corporation, was robbed since the corporation is a “person” within the meaning of the statute and may be the subject of robbery the same as a natural person.

The demurrer was therefore properly overruled, and the judgment of conviction must be affirmed. It is so ordered.


source: Caselaw Access Project

author: McHaney, J.

license: Public Domain

text:
    Stephenson v. Taylor.
    4-2638
    Opinion delivered June 20, 1932.

      J. Sam Rowland, for appellant.

      M. A. Hathcoat, for appellee.
   McHaney, J.

Appellant is the receiver of the Missouri & North Arkansas Bailway Company under appointment by the District Court of the United States, Eastern District of Arkansas. Appellee, as State Bank Commissioner, is in charge of the affairs of the Citizens’ Bank & Trust Company of Harrison, and of the iBank of Alpena, Alpena Pass, Arkansas, insolvents, by W. P. Watkins, special deputy. At the time said banks closed their doors and were taken over by appellee, appellant had on general deposit in receivership funds in the Citizens’ Bank & Trust Company the sum of $30,844.-53, and in the Bank of Alpena, the sum of $154.41. He presented his claim to the liquidating agent against each bank as preferred or prior claims on the ground that said fund in each bank is money due the United States. The claims were disallowed by the Bank Commissioner as preferred or prior claims, but were allowed as general claims without preference. Appellant then presented the claims to the chancery court for preference and same were again disallowed and classified as general claims against the banks. From the judgment so classifying these claims appellant has appealed.

It is contended by appellant that the claims are entitled to preference by reason of § 3466, Bevised Statutes of the United States, reading in part as follows: “Whenever any person indebted to the United States is insolvent, * * * the debts due the United States shall be first satisfied. ” And by reason of the decision of the Supreme Court of the United States in Bramwell v. U. S. Fidelity & Guaranty Co., 269 U. S. 483, and Union Indemnity Co. v. Florida Bank & Trust Co., 48 Fed. (2d) 595. In the Bramwell case the superintendent of an Indian Reservation deposited funds of the government in a bank to be distributed to the individual Indians and to the tribe, the superintendent acting as the agent of the Federal Uovernment. The bank gave bond to the agent for the protection of said funds, and on becoming insolvent the surety paid the agent the amount of- the deposit and sought and was allowed to be subrogated to the right of the government to be classified as a preferred creditor of the bank. Bramwell, the Bank Commissioner, disputed the right and the Supreme Court of the United States sustained the allowance as a preferred claim. In the Union Indemnity Company ease, supra, it was held that funds in the hands of a trustee in bankruptcy are entitled to preference under the same section of the statute.

We do not think either case is in point here. Neither of the insolvent banks was “indebted to the United States.” The Federal receiver, appellant, is an operating receiver by appointment of the Federal Court and the funds on deposit were funds accumulated in the operation of the railroad. Under the order appointing him as receiver, he was directed to take charge of the property, operate the railroad and conduct the business thereof according to.his best judgment in a way to produce the best results, just as the railroad, company would do if in possession thereof. He was directed to deposit the money coming into his hands in some bank or trust company and to report to the court the bank or trust company so selected. He was authorized and .directed to pay all taxes and assessments, due or to become due and all expenses incident to the operation of the property. We think the receiver is in no better position to claim a preference from other depositors than the railroad company itself would have been, had it been in charge of the property and made the deposits in question. Andrew v. Crawford County State Bank (Iowa) 224 N. W. 499; See also Price v. United States, 269 U. S. 492; Stripe v. United States, 269 U. S. 503. The gist of the whole matter is that appellant does not come within the provisions of § 3466, Revised Statutes of the United States, for the reason that the insolvent banks, by being indebted to the receiver of the railroad company, were not indebted to.the United States.

The decree of the chancery court is correct, and is therefore affirmed.


author: Butler, J.

text:
    Cotner v. State.
    Crim. 3801
    Opinion delivered June 20, 1932.

      Lee G. King, Williams & Williams and John P. Roberts, for appellant.

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

From a conviction in the Charleston District of the Franklin Circuit Court upon a charge of assenting to reception of deposits in an insolvent bank with knowledge that the bank was insolvent, this appeal is prosecuted.

The sole ground urged for reversal is that the court erred in overruling the motion for change of venue filed in apt time by the defendant. The petition for the change was regular upon its face, properly signed and verified, and was supported by the affidavits of Lee Gr. King and ten other qualified electors of Franklin County. The affidavit of Lee Gr. King was subscribed and sworn to before the circuit clerk and the affidavits of the other affiants were sworn to before a notary public.

At the hearing, the notary before whom the affidavits were made was examined, and it appeared that he was an attorney assisting John P. Roberts in the defense of the appellant, and that he went to see a majority of the persons -who signed the affidavits, either at their place of business or where they were employed. Without examination of the affiants or other proceedings being had, the court thereupon overruled the petition for a change of venue and denied the same.

It is suggested by learned counsel for the appellee that the action of the .court was probably guided by the decision of this court in the cases of Hammond v. Freeman, 9 Ark. 62, and Coleman v. Frauenthal & Co., 46 Ark. 302. In the law and equity courts of England it appears to have been the rule of practice to refuse to receive affidavits made by a client before his attorney (95 Am. Dec. 378, note; 6 Ann. Cas. 37, note), but, as pointed out in Coleman v. Frauenthal & Co., supra, the action of these courts seems to have been grounded upon rules of practice adopted by them for the guidance of litigants rather than the strict pursuance of the rule of law. Such a rule of practice has never been adopted by the courts of this State, although it appears to have been enforced, indeed extended, in the case of Hammond v. Freeman, supra, but which was made without comment or explanation and upon authority of a single case— i. e., Taylor v. Hatch, 12 Johnson 340, decided by a New York court.

The decision in Hammond v. Freeman, supra, was referred to in Coleman v. Frauenthal, supra, where the court,' speaking through Chief Justice Cockrill, took occasion to say that the English cases announcing the rule were of recent origin, and that, “as these were no part of the practice of the courts prior to the fourth •year of James I, they can have'no binding force with us.” The decision in that case whs to the effect that .an affidavit for an appeal from a justice of the peace, made before the appellant’s attorney in his Capacity of notary public, is not void. The reason for the rule promulgated by the English courts is not clear, although, as suggested in People v. Spalding, 2 Paige, Ch. 326, cited in Coleman v. Frauenthal, supra, it might have been intended to discourage attorneys from engaging in a practice which, in the opinion of the court, might lead to abuse, and some of the courts which have followed the English rule have placed it upon grounds of public policy. Since this rule has never been promulgated by our courts and never enforced except in the single exception of Hammond v. Freeman, supra, we decline now to announce any such rule, as we can see no good reason for it.

In the instant case it will be observed that the client did not swear to the petition for change of venue before his attorney, and affidavits taken by the attorney in the capacity of notary public were of other persons, and this would not appear to offend even the rule referred to by Chief Justice Cockrill in Coleman v. Frauenthal, supra. It was stipulated between the attorneys representing the State and the attorney for the appellant that the affidavits of the supporting witnesses to the application for change of venue were “in regular form and were properly sworn to by reputable and qualified citizens and electors of Franklin County, Arkansas, but were not examined as to their credibility, although some of them were present in' the court room when the court sustained the State’s demurrer or motion to quash the change of venue.” In this the court erred in failing to test the credibility of the supporting affiants and peremptorily dismissing the motion. When a petition for change of venue with supporting affidavits in form prescribed by statute is filed, the only inquiry on which a trial court may enter is as to the 'qualifications of the supporting witnesses; and, if they are within the qualifications prescribed, the court is without further discretion, and the order for a change must be made. Dewein v. State, 120 Ark. 302, 179 S. W. 346; Whitehead v. State, 121 Ark. 390, 181 S. W. 154; Spurgeon v. State, 160 Ark. 112, 254 S. W. 376; Mills v. State, 168 Ark. 1005, 272 S. W. 671; Clarkson v. State, 165 Ark. 459, 264 S. W. 975.

For the error indicated the judgment of the court below is reversed, and cause remanded for further proceedings in accordance with law and with this opinion.


author: Hart, C. J.,

text:
    Williams v. Parnell.
    4-2707
    Opinion delivered June 27, 1932.

      R. E. Wiley, for appellant.

      Hal L. Norwood, Attorney General, Walter L. Pope, Assistant, and Coleman S Riddick, for appellees.
   Hart, C. J.,

(after stating the facts). It is argued that the act is in violation of at least the spirit of <§.1, article 16, of the Constitution, which reads:

“Neither the State nor any city, county, town or other municipality in this State shall ever loan its credit for any purpose whatever; nor shall any county, city, town or municipality ever issue any interest-bearing evidences of indebtedness, except such bonds as may be authorized by law to provide for and secure the payment of the present existing indebtedness, and the State shall never issue any interest-bearing treasury warrants or scrip.”

This provision was construed in the case of Hays v. McDaniel, 130 Ark. 52, 196 S. W. 934. It was there held that the act of 1917, authorizing the -borrowing of a certain sum of money to cover deficiencies in the State’s general revenue fund, to issue interest-bearing evidences of indebtedness therefor, and to levy a tax to create a sinking fund to pay the interest and principal of said note, was valid. After considering and defining the meaning of the provisions of the Constitution now under consideration, the court said:

“The Constitution is not a grant of power to the State, and we are not required to look to the Constitution for authority for legislative action. The State, acting through its Legislature, may borrow money for its own uses unless that right is denied to it by the Constitution, and the only inhibition against the State there contained, in this respect is that it shall not issue any interest-bearing treasury warrants or scrip.”

It is now claimed that that decision contemplated that the State might borrow money for its own use for a “State purpose,” but that this did not include money advanced for the building of roads, which is a county purpose as distinguished from a State purpose, and that therefore, the debt being made for the construction or aid of public roads, the issuance of bonds therefor is a loan of the State’s credit within the prohibition of the provision of the Constitution above referred to. We do not think so.

In the case of Sanderson v. Texarkana, 103 Ark. 529, 146 S. W. 105, the court expressly held that the State, in its sovereignty over all public highways, has full power over the streets, as well as over public roads, and, unless prohibited by the Constitution, the Legislature may confer on such agency, as it may deem best, the power of supervision and control over streets. The general rule is that, unless specifically restricted by the Constitution, the construction of highways by a State is the exercise of a public function, and it has been held that they may be constructed and maintained, either by the State, or under its authority, by municipal subdivisions or taxing districts created by the Legislature for that purpose. Elliott on Roads and Streets, vol. I, § 465, and cases cited; Id. %% 509-514; 13 R. C. L., page 79, and cases cited.

The Legislature concluded to adopt a State system of public highways, and in 1923 and 1925 an act and an amendment thereto, commonly known as the Harrelson law, were passed. Under this act and amendment, the State Highway Commission was authorized to ascertain the amount and dates of the maturity of the principal of the valid unmatured bonds on January 1, 1924, which had been issued by each road improvement district in the State, and to allot and distribute to certain counties which had been classified the proportion in which the State highway fund allotted to them should be used in the payment réspectively of bonds and interest coupons. This act was upheld in Cone v. Hope-Fulton-Emmett Road Improvement District, 169 Ark. 1032, 277 S. W. 544.

Again, in Bonds v. Wilson, 171 Ark. 328, 284 S. W. 24, a statute authorizing the State Highway Commission to adopt routes which are termed State highways along roads which were already public highways, or which might thereafter be made so under proper authority, was held valid.

The Legislature of 1927 passed an act which was amendatory of the Harrelson act. In it the Legislature declared it to be the policy of the State to take over, construct, repair, maintain and control all the public roads in the State, comprising the State highway system as defined in the act. This act was challenged on the ground that it was in violation of the provision of the Constitution copied above. The court expressly held, that the State might borrow money for the construction of the roads provided for in the act and issue State highway notes therefor, and that this did not violate the provision of the Constitution above referred to, to the effect that the State shall not loan its credit for any purpose. The court said that the State did not loan its credit, but only used it. The reason is that highways may be constructed and maintained for.public use by the State itself or by governmental agencies created by law for that purpose. Public highways are for public use, and there is no reason why the power of taxation by the State may not be exercised in their behalf. While it is elemental that taxes may only be levied for a public purpose, one of the most important duties of the State is to provide and construct public highways. Bush v. Martineau, 174 Ark. 214, 295 S. W. 9.

In the later case of Cobb v. Parnell, 183 Ark. 429, 36 S. W. (2d) 388, the court sustained an act passed by the Legislature of 1931, levying a general tax for the payment of bonds to be issued by the State Agricultural 'Board, as not being in violation of the provision of the Constitution prohibiting the State from loaning its credit for any purpose. In the majority opinion, the purpose of the act under consideration was held to be a public use, and the construction placed upon the provision of the ■Constitution now under consideration, in Bush v. Martineau, 174 Ark. 214, 295 S. W. 9, was expressly approved. In concluding the discussion, it was said that it has become recognized that the State, although prohibited from loaning its credit in the furtherance of public enterprises, may still use that credit for the promotion of the common good. Some of us dissented on the ground that the ■tax levied under the act was for a private purpose, and therefore unconstitutional, although it passed through the hands of public officers. In our dissenting opinion, however, we approved in express terms the construction •placed upon the provision of the Constitution in Hays v. McDaniel, 130 Ark. 52,196 S. W. 194, and in Bush v. Martineau, 174 Ark. 214, 295 S. W. 9. We based our dissent on the ground that the power of taxation could not be resorted to in aid of any class in private business or public utilities, although such aid might promote general prosperity.

No additional reasons have been given by counsel in this case why the construction placed upon the provision of the Constitution under consideration in the cases above cited shall not be sustained. Therefore we hold that the subject is settled in this State, and we can see no useful purpose in entering again into a discussion and determination of the soundness of our former opinions. Under our system of government the Legislature alone may determine the public policy of the State with reference to taxation, and the courts have nothing to do with the wisdom and expediency of its acts, when done within constitutional limitations.

It is also contended that the demurrer admits certain allegations of the complaint that the constitutional requirements as to the passage of the act were not observed, and that this invalidates the enactment. The rule in this State is that an enrolled statute, signed by the Governor and deposited with the Secretary of State, raises the presumption that every requirement of the Constitution was complied, with unless the contrary affirmatively appears from the records of the General Assembly, and this presumption is conclusive unless the record of which the court can take judicial knowledge shows to the contrary. Butler v. Kavanaugh, 103 Ark. 109, 146 S. W. 120; Mechanics’ Building & Loan Association v. Coffman, 110 Ark. 267, 161 S. W. 198, and Road Improvement District No. 6 v. Sale, 154 Ark. 551, 243 S. W. 825.

This court is committed to the rule that, if the defect or violation appears on the face of the act or by the records of which the court can take judicial notice, the power .of the courts to determine the question is undoubted; but if the proper record shows that the act has received the sanction required by the Constitution and has been passed agreeably to the Constitution, the regularity and stability of government and the peace of society requires that the act should have the force of a valid law. Otherwise every act of the Legislature would be open to be impeached, upon an inquiry into the facts which took place at its passage, and all confidence in legislative acts would be destroyed. The above reasoning was taken from Green v. Weller, 32 Miss. 690, and was expressly approved by this court in Booe v. Road Improvement District, 141 Ark. 140, 216 S. W. 500. The record of the Legislature, which includes the journals, shows .that the act was passed conformably to the provisions of the Constitution.

The decision of the chancery court was correct, and will therefore be affirmed.


author: Smith, J.

text:
    Parker v. Sims.
    4-2587
    Opinion delivered June 20, 1932.

      Cochran <& Arnett, for appellant.

      Partain & Agee and Rhyne <& Shaw, for appellee.
   Smith, J.

On December 29, 1931, appellants filed exceptions to the final report of Lee Gr. -Sims as liquidating agent of the insolvent Bank of Ratcliff, and caused notice of those exceptions to be served on Sims on January 1, 1932. A denfurrer to these exceptions was filed on January 14, 1932. This demurrer was not disposed of, as on the same day an amended pleading was filed which enlarged1 and made more specific the original exceptions to the liquidating agent’s report. A demurrer was also filed to this amended pleading, which alleged that it did not state facts sufficient to constitute a cause of action, and that the court was without jurisdiction of the action. The demurrer was sustained, and this appeal is from that decree.

Upon a suggestion of the diminution of the record in this case, there was issued a writ of certiorari, and the response of the clerk of the chancery court has brought before us the entire proceedings in the chancery court relating to the liquidation of the insolvent bank.

The. appellants seek by their pleadings in this cause to- question the fees allowed the liquidating agent and certain fees paid attorneys, and the allowance of certain credits claimed in the final report of the liquidating agent.

. The proceedings in the chancery court, stated chronologically, are to the following effect: After taking over the bank as an insolvent institution, the Bank Commissioner filed in the chancery court a petition for an order to sell certain assets of the bank at private sale, and to compound certain debts regarded as ba'd or doubtful. An order granting the prayer of this petition was made June 2; 1930. A complete inventory of. the assets of- the bank had been previously filed May '26, 1930. The bank had been taken over by the Bank Commissioner on May 20, 1930. ' ’,’''-

On April 23, 1931, a detailed report was filed showing all claims, both general and preferred, which had been filed and allowed and paid, together with a statement of all bills payable outstanding at tbe closing of the bank and of those paid since that date.

On May 15,1931, an order was asked to make a final payment of 15 per cent, to the depositors, which, it was recited, would pay the depositors in full. Attached to this petition was'the final report of the liquidating agent.

Upon obtaining the order to pay depositors, there was filed on May 25, 1931, a petition for an order directing the liquidating agent to call a meeting of the stockholders pursuant to the provisions of § 725, Crawford & Moses ’ Digest, to wind up the affairs of the bank in the manner provided by that section of the Digest. This section provides that, whenever the'Bank Commissioner has paid the depositors and creditors of a bank (excluding stockholders) whose claims have been approved and allowed, and all expenses of liquidation, he shall call a meeting, of the stockholders by giving notice for two weeks in some newspaper published in the county where the bank was located, at which meeting the stockholders shall determine whether the Bank Commissioner shall be continued as liquidator or whether the stockholders shall select an agent or agents for that purpose. At this meeting each stockholder is allowed one vote for each share of stock owned. If it is then so determined, the Bank Commissioner shall complete the liquidation of the bank’s assets. If, however, it is determined to appoint an' agent or agents for that purpose, such agent or agents are then elected by the stockholders, and such agent or agents are required to execute a bond, to be approved by the Commissioner, for the faithful performance of the trust, and thereupon the Commissioner “shall transfer and deliver to such agent or agents all the undivided or uncollected or other assets of such corporation then remaining in his hands; and upon such transfer and delivery the said Commissioner shall be discharged from any and all further liability to such bank and its creditors.”

On June 15, 1931, there was filed in the chancery court a petition by Taylor, as Bank Commissioner, and Sims, as liquidating agent, praying that they be discharged and that the liquidating agent’s final report be approved. This petition recited that notice had been given as required by § 725, Crawford & Moses’ Digest, and that the stockholders had held a meeting pursuant thereto. The petition sets out the minutes of this meeting, which contained the following recitals:

C. O. Parker was elected chairman of the meeting, and W. R. Chastain was elected secretary. The owners of a majority of the capital stock of the bank were present. The Deputy Bank Commissioner, as liquidating agent, made a report of the present status of the assets of the bank. A motion was unanimously adopted naming Parker, Chastain and John Baker, appellants herein, as agents of the stockholders “to determine the manner in which further liquidation shall be handled, ’ ’ and to employ such assistants as may be necessary for that purpose, and, pursuant to this purpose, they had employed Chas. X. Williams and Paul X. Williams.

This petition recited that the remaining assets so to be liquidated “are listed in a statement attached to this petition, and marked Exhibit A.” This statement, made Exhibit A, contains a list of all the creditors, to which objection is now made. On the same day Parker, Chastain and Baker, as agents of the stockholders, filed in the chancery court a certificate of their appointment of Chas. X. and Paul X. Williams as liquidating agents, pursuant to authority conferred at the stockholders’ meeting, to complete the liquidation of the affairs of the bank. Thereafter, and on the same day, the application of Taylor, as Bank Commissioner, and that of Sims, as his deputy, and the certificate of appointment of the stockholders’ agents came on for hearing, and were approved by the court. This order recites that there is attached to the petition of the Bank Commissioner and that of his deputy ‘ an inventory and list of the remaining assets of the bank” which remained after the credits were allowed, which are here questioned. The Commissioner and his deputy were discharged after being directed to “turn over and deliver to Chas. X. Williams and Paul X. Williams, as such special liquidating agents, all of the assets listed as Exhibit A to the petition filed in this cause.”

It is not questioned that this order was fully complied with by the Bank Commissioner and his deputy. This order was made and entered on June 15,1931, and thereafter no further action was taken until Parker, Chastain and Baker filed their exceptions to Exhibit A of the report above mentioned.

The act creating the Fourteenth Chancery District, of which Logan County is a part (act 18, Acts of' 1927, page 55), provides that three sessions of court shall be held each year in each district of that county, and that terms for the northern district, from which this appeal comes, shall be held the third Monday in February, June and October. The June term of the court, at which time the Commissioner’s report was approved, had expired, and the October term had intervened before the exceptions of appellants to that report were filed, and no appeal has been prosecuted from the order of court made at the prior term.

The decree of the June term of the court had therefore become final, and could be vacated or modified only in the manner provided by § 6290, Crawford & Moses’ Digest. It is insisted, however, that this proceeding is authorized by the fourth paragraph of that section, which provides that the court in which a judgment or final order has been made shall have power, after the expiration of the term, to vacate or modify such judgment or order, “* * * Fourth. For fraud practiced by the successful party in the obtaining of the judgment or order.”

The original exceptions made no charge of fraud, and the fraud alleged in the amended pleading was that the liquidating agent, acting as a deputy of the Bank Commissioner, had secured the approval of his report without notice to appellants as agents of the stockholders, and by reporting to the court that there was no objection thereto, whereas appellants had not consented to its approval, and, had they been advised of the hearing of such" report, they would have objected to numerous credits therein taken as being excessive or unauthorized by law.

. Section 6292, Crawford & Moses’ Digest, provides the procedure for vacating judgments under the fourth, fifth, sixth, seventh and eighth subdivisions of § 6290, and requires the filing of a complaint verified by affidavit. If the amended exceptions be treated as a complaint— which may well be done — yet it was not verified, and the court may have sustained the demurrer upon that ground, treating it as a motion to strike.

But we think there was no such fraud as required the court to vacate the decree on that ground. The law is settled that the fraud which entitles a party to impeach a judgment must be fraud extrinsic of the matter tried in the cause, and does not consist of any false or fraudulent act or testimony the truth of which was or might have been in issue in the proceeding before the court which resulted in the judgment assailed. It must be a fraud practiced upon the court in the procurement of the judgment itself. Scott v. Penn, 68 Ark. 494, 60 S. W. 235; Womack v. Womack, 73 Ark. 281, 83 S. W. 937; James v. Gibson, 73 Ark. 440, 84 S. W. 485; Boynton v. Ashbranner, 75 Ark. 415, 91 S. W. 20; Parker v. Bowman, 83 Ark. 508, 104 S. W. 158; Bank of Pine Bluff v. Levi, 90 Ark. 166, 118 S. W. 250; Williams v. Alexander, 90 Ark. 591, 119 S. W. 1130; Pattison v. Smith, 94 Ark. 588, 127 S. W. 983; Cassady v. Norris, 118 Ark. 449, 177 S. W. 10; Parker v. Nixon, 184 Ark. 1085, 44 S. W. (2d) 1088.

It is' also settled that the mere fact that a larger judgment was rendered than the facts justified does not show that a judgment was procured by fraud. The remedy for such an erroneous judgment is by way of appeal. Estes v. Lucky, 133 Ark. 97, 201 S. W. 815.

The case of H. G. Pugh & Co. v. Martin, 164 Ark. 423, 262. S. W. 308, was one in which a petition had been filed to vacate a judgment as having been fraudulently rendered. It was there said that: “The court was correct in' disposing of the appellants’ petition or motion to vacate the decree as if a demurrer had been filed thereto, and in refusing to allow appellants to introduce testimony in support of the allegations of the petition. While the petition alleges fraud, collusion, and many other irregularities, there is no allegation setting forth facts sufficient to show that any fraud was perpetrated upon the court in the rendition of its decree of foreclosure.”

Here there was no effort to introduce testimony, and the appellants stood upon their pleadings.

In sustaining the demurrer in the instant case, the chancellor had before him all the orders which he had himself previously made, and all the pleadings' upon which those orders had been made. He knew, from his own orders and the record in the case, that the liquidating agent had made a full report of all his proceedings, which report asked credit for all the items here questioned. The chancellor had before him the minutes of the stockholders’ meeting'above referred to, which recited that this report was before the stockholders at that meeting, and there is nothing in the minutes of the meeting to indicate that any objection had been or would be made to this report. All parties knew that it was the purpose of the liquidating agent in calling this meeting to secure the discharge of himself and his principal, the Bank. Commissioner, and that this order would not be made until the report of his administration had been submitted to and approved by the court, and they knew that the liquidating agent had been discharged and his successors appointed. The discharge of the Deputy Bank Commissioner as liquidating agent and the appointment of his successors occurred on the same date, and both orders were made in response to pleadings filed on that day. All parties in interest were before the court, either in person or through their chosen representatives.

Treating as true, as we must do, on demurrer, the allegations of appellants’ complaint that the representation was made to the court that there was no objection to the liquidating agent’s report, there was no fraud in this. The facts stated herein Avarranted that assumption. HoAvever, it is not to be assumed that the report Avas approved by the court, notAvithstanding this representation, without examination thereof by the court, and the judge, of course, kneAv whether he had performed his duty in this behalf.

It is insisted that the records to which we have referred Avere not offered in evidence when the court disposed of the demurrer, and that we should therefore consider only the allegations of appellants’ complaint. These records were, hoAvever, before the court. Noav, Avhile it is true that courts cannot take judicial notice of their own records in other cases pending therein, even between the same parties, it is nevertheless true that a court does take judicial notice of pleadings upon Avhich» it has passed judgment and of those judgments in the particular case then under consideration. In Williams v. Wheeler, 131 Ark. 585, 199 S. W. 927, it was said: “Again, all the matters set forth in the motion Avere a part of the proceedings and pleadings, and it Avas the court’s duty to take judicial notice of them. It was not necessary to prove them.”

Moreover, we are of the opinion that appellants have not moved with that diligence Avhich the law requires. The case of Trumbull v. Harris, 114 Ark. 493, 170 S. W. 222, was a proceeding to Amcate a judgment under § 4431, Kirby’s Digest (now § 6290, Crawford & Moses’ Digest), and it Avas there said: “It is the duty of a litigant to keep himself informed of the progress of his case, and a party seeking relief against a judgment on the ground of unavoidable casualty or misfortune preventing him from defending must sIioav that he himself is not guilty of negligence, and he cannot have relief if the taking of the judgment appears to have been due to his OAvn carelessness.” We there also quoted from the case of Izard County v. Huddleston, 39 Ark. 107, as follows: “In the ease last cited the court said: ‘The statute to vacate judgments by this proceeding is in derogation, not only of the common laAv, but of the very important policy of holding judgments final after the close of the term. Citizens must have confidence in' the judgments of our official tribunals as settlements of their controversies, and there should be some end of them. Unless a case be clearly within the spirit and policy of the act, the judgment should not be disturbed.’ ” See also Farmers’ Mut. Fire Insurance Co. v. Defries, 175 Ark. 558, 1 S. W. (2d) 19, and cases there cited.

Upon the whole case, we think no error was committed in sustaining the demurrer, and the decree must therefore be affirmed, and it is so ordered.


text:
    State ex rel Atty. General v. Republic Mining & Manufacturing Company.
    4-2685
    Opinion delivered July 4, 1932.

      Carmichael S Hendricks, for appellant.

      Bose, Hemingway, Ccmtrell <& Loughborough, for appellee.
   Hart, C. J.,

(after stating the facts). The exercise of the taxing power is a sovereign attribute, and the mode of ascertainment of the tax is a matter of legislative discretion within the limits of the Constitution. Our Legislature passed an act providing for the collection of back taxes owed the State by corporations; and the statute, as amended, gave the State the right to recover back taxes where there had been a gross undervaluation of the property belonging to a corporation. State v. Kansas City & Memphis Railway & Bridge Company, 117 Ark. 606, 174 S. W. 248; State v. Bodcaw Lumber Company, 128 Ark. 505, 194 S. W. 692; White River Lumber Company v. State, 175 Ark. 956, 2 S. W. (2d) 25; and State ex rel Attorney General v. Chicago Mill & Lumber Corporation, 184 Ark. 1011, 44 S. W. (2d) 1087.

The Legislature of 1923 passed an act to levy a privilege or license tax upon corporations engaged in severing our natural resources from the soil, which is commonly known as our Severance Tax Act. This is the act under which the taxes sought to be collected in this case were assessed against the defendant. The act has been sustained as not in violation of any of the provisions of our Constitution, and it has been held that the owner of the soil must pay the severance tax provided for in the statute. Floyd v. Miller Lumber Company, 160 Ark. 17, 254 S. W. 450; and Miller Lumber Company v. Floyd, 169 Ark. 473, 275 S. W. 741.

It is insisted, however, that our Back Tax Statute (§ 10,204 of Crawford & Moses’ Digest) does not include overdue taxes levied under the Severance Tax Act. We do not agree with counsel in this contention. The act is very broad and comprehensive. It is well settled that the Legislature may authorize different modes of assessment for different purposes; and, under the authorities above' cited, it is the settled law of this State that the State may recover against a corporation for a gross undervaluation of property in the assessment of it, provided, such a remedy is given by the statute. The statute for the collection of overdue taxes from corporations just referred to provides that where the Attorney General is satisfied that in consequence of the failure from any cause to assess and levy taxes and after enumerating certain other particulars, concludes with the clause, “or from any other'cause, that there are overdue and unpaid taxes owing to the State, etc.,” it shall become his duty to at once institute a suit in chancery in the name of the State for the collection of the same. The Legislature in the exercise of its sovereign power evidently meant to give the Attorney General the right to bring a suit for the collection of overdue taxes from corporations from all sources, and did not intend to limit the provisions of the act to back taxes due on property. It was evidently the intention of the Legislature to make the collection of overdue taxes from corporations uniform in its operation and to apply it to taxes levied from any source whatever. The act has been construed under our former decisions to be prospective in its operation; and, as soon as the Severance Tax Act was passed by the Legislature of 1923, the tax levied thereunder took its place in the section of the statute above referred to, prescribing proceedings for the collection of overdue taxes from corporations.

The Legislature of 1927 however passed an act which, as construed by this court, contains a mandatory provision that the Attorney General must obtain the permission of the Tax Commission before bringing a suit against a corporation for the collection of back taxes, and that the act, by implication, repeals so much of § 10,204 of Crawford & Moses’ Digest, as authorized the Attorney General to bring action therefor. State ex rel. Attorney General v. Standard Oil Company of Louisiana, 179 Ark. 280, 15 S. W. (2d) 403. In that case it was expressly held that in an action to recover back taxes from a corporation, a complaint which fails to allege that the suit was instituted under the direction or approval of the Tax Commission, as required by the act of 1927, is subject to demurrer. The reason is that, inasmuch as the power of the State to recover back taxes from corporations, alleged to be due on account of under-assessment, is dependent on the statute, the procedure prescribed by the statute must be followed as a condition precedent to its right to maintain such suit. Statutory provisions of this kind, intended to give a specific remedy to the exclusion of other remedies, must be followed; and if the officer or person authorized to sue for back taxes fails to pursue the remedy available under the statute, he will not be entitled to recover.

The result of our views is that the court properly sustained a demurrer to the complaint because it did not contain an allegation that the Attorney General had been directed by the Tax Commission to bring the suit. It follows that the decree will be affirmed.


text:
    Barney v. Texarkana.
    4-2682
    Opinion delivered June 20, 1932.

      IT. M. Barney, pro se.

      Willis B. Smith,.and Ben E. Garter, for appellee.
   Hart, C. J.,

(after stating the facts). The.decree of the chancery court was based upon a holding by the court that the plea of res judicata of the defendants should be sustained. It is elementary that all questions which might be litigated in an action of which the court has jurisdiction are res judicatae as to all parties thereto and their privies. The doctrine of res judicata is based on public policy, reason and experience. If all questions that have been decided by the court are to be regarded as still open for discussion and revision between the same parties and their privies, there would be no end of litigation until the ingenuity of counsel and the financial ability of the parties had been exhausted.

Then, too, the decision of the court in .the mandamus suit on the former appeal became stare decisis and we are bound by it on the present appeal. It was there held that, after the sufficiency of a referendum petition was duly certified by the proper officer, a signer was not entitled to withdraw his signature in the absence of fraud. The court also said that the correctness of the city clerk’s determination of the sufficiency of the petition for referendum could only be made in the chancery court. Southern Cities Distributing Company v. Carter, 184 Ark. 4, 41 S. W. (2d) 1085. This holding was based upon the court’s construction of amendment No. 7 relating to the initiative and referendum. The amendment itself specifically provides that the sufficiency of all local petitions shall be decided in the first instance by the county clerk or city clerk, as the case may be, subject to review by the chancery court.

Under our statute, a defendant, when sued at law, must make all the defenses he has, both legal and equitable. If any of his defenses are expressly cognizable in equity, he is entitled to have them tried as in equity proceedings, and, for this purpose, to a transfer of the case to the chancery court. The principle of res judicata extends not only to the questions of fact and of law which were decided in the former suit but also to the rights of recovery or defense which might have been but were not presented. In short, the uniform rule adopted by this court is that the judgment or decree of a court of competent jurisdiction operates as a bar to all defenses, either legal or equitable, which were interposed or which might have been interposed in the former suit. Taylor v. King, 135 Ark. 43, 204 S. W. 614, and cases cited; Howard-Sevier Road Improvement District v. Hunt, 166 Ark. 62, 265 S. W. 517; Tri-County Highway Improvement District v. Vincennes Bridge Company, 170 Ark. 22, 278 S. W. 627; Newton v. Altheimer, 170 Ark. 366, 280 S. W. 641; Stevens v. Shull, 179 Ark. 766, 19 S. W. (2d) 1018; and Blackwell Oil & Gas Company v. Maddox, 182 Ark. 1152, 34 S. W. (2d) 450.

Mandamus only lies to compel a person to do that which it is his duty to do without it, and cannot be used to compel the performance of that which is not lawful. A party, to be entitled to the writ, must show that he has a clear, legal right to the subject-matter, and that he has no other adequate remedy. Arkansas State Highway Commission v. Otis & Company, 182 Ark. 242, 31 S. W. (2d) 427; and Shackleford v. Thomas, 182 Ark. 797, 32 S. W. (2d) 810.

The doctrine of res judicata applies to the issues that might have been litigated in proceedings to obtain a writ of mandamus. 18 R. C. L., § 318, p. 358; Kaufer v. Ford, 100 Minn. 49, 110 N. W. 364.

In Sauls v. Freeman, 24 Fla. 209, 4 So. 525, 12 Am. St. Rep. 190, a writ of mandamus was granted ordering the county commissioners to call an election for a change of county seat. An injunction was later asked for against the removal of the county records to the new county seat because there had been no legal examination by the county commissioners of the petition for the election and because certain parties whose names were on the petition were not qualified signers. The court held that these questions could have been litigated in the mandamus suit, and that the award of the mandamus adjudicated the legality of the petition in all respects and settled the question of the duty of the commissioners to call the election.

In State v. Sparrow, 89 Mich. 263, 50 N. W. 1088, a land commissioner, by ‘writ of mandamus, was required to set off for the petitioner certain lands to which he claimed to be entitled under a contract. Subsequently, the State sought to cancel the patents issued, and it was, held that the State could not cancel on the ground that the land had not been patented to the State or offered at public auction, because this ground could have been set up by the State as a defense to the petition for mandamus..

The same principle was recognized and applied by the Supreme Court of North Dakota in a county seat election in Dimond v. Ely, 28 N. D. 426, 149 N. W. 349. The reasoning of all these cases is that the writ of mandamus does not issue as a matter of absolute right, and it would be an improper use of the writ to issue it when it is clearly apparent to the court to which application is made that it would serve no purpose and would be useless when issued. See also Murphy v. Scott County, 125 Minn. 461, 147 N. W. 447; and Southern Pacific Rd. Co. v. United States, 168 U. S. 1, 18 S. Ct. 18.

The Southern Cities Distributing Company was allowed to be made a party defendant in the mandamus -suit, and all other interested parties, including the plaintiff in this action, might have been made parties to that suit. If they thought that the principles of law decided in the case of Townsend v. McDonald, 184 Ark. 273, 42 S. W. (2d) 410, applied to petitions for referendum on-local measures, such as the one under consideration, they should have set up that as a defense to the mandamus suit and have asked that the case be transferred to the chancery court in order to have that issue determined. Not having done so, all interested parties are concluded, not only by the issues decided in that case, but by all issues which came within the purview of the pleadings and might have been decided in the case. If the contention-now made by the plaintiff is correct, this would have constituted an equitable defense in tbe mandamus proceeding, and the court, upon such defense being interposed, would have transferred the case to the chancery court, or the defendants might have appealed to this court from an adverse holding of the chancery court and have obtained the relief now sought. The plaintiff in the present action, and all other parties interested, knew then as well as now the grounds upon which the referendum was sought to be held invalid. At least, by the exercise of ordinary diligence, they could have been put in possession of all the facts on the subject of which they now have knowledge.

Having failed to set up this defense to the mandamus proceeding, the parties to that suit and their privies are barred by the judgment in that case from seeking to further adjudicate the matter in this case. Therefore the decree will be affirmed.


author: Mehaeey, J. Smith, J.,

text:
    Williamson v. Montgomery.
    4-2717
    Opinion delivered July 4, 1932.

      Tom W. Campbell and Chas. W. Mehaffy, for appellant.

      Sam E. Montgomery and June P. Wooten, for appellee.
   Mehaeey, J.

Lamar Williamson is the chairman, J. H. Andrews is the secretary, and Harvey Gf. Combs is the assistant secretary of the Democratic State Central Committee of Arkansas.

The appellee, Robert L. Montgomery, Jr., is a citizen and qualified elector of the State of Arkansas.

On May 21, 1932, the appellee filed in the Pulaski Circuit Court a petition for mandamus, praying- for an order requiring appellants to accept appellee’s fee as'a candidate for the Democratic nomination for the office of Treasurer of Arkansas, and to certify appellee’s name to the various county committees as, a candidate for said nomination.

The appellants filed a demurrer denying that the court had jurisdiction of the persons of defendants in the capacity in which they are sued, and denied that the court had jurisdiction of the subject of the action.

The court overruled the demurrer. Appellants saved their exceptions, and filed answer to appellee’s petition, denying- the material allegations in the complaint, and asking that the petition be dismissed.

The case was tried on the following agreed statement of facts:

“Stipulation: The parties in open court agree that witnesses, if present in court, would testify to the following facts; the plaintiff was at the office of Harvey Gf. Combs, assistant secretary of the Democratic State Central Committee, in Little Rock, at or about eleven o ’clock p. m. on May 10, 1932. -He mailed the pledge required by § 42 of the-rules of the Democratic party in Arkansas, and the fee required by <§> 45 of said rules, to J. H. Andrews, secretary of said committee, at Wynne, Arkansas, at eleven-thirty o’clock i>. m. on May 10, 1932, and said pledge and fee were received by said secretary at an hour in the morning of May 11, 1932. .Said secretary returned the fee to plaintiff. The defendants refused to accept said fee from plaintiff — the reason given that it was not received within the time required by the rules as construed by the defendant. At or about eleven o ’clock p. m. on May 10,1932, one Martin, of Wynne, Arkansas, a friend of plaintiff, advised J. H. Andrews, said secretary at Wynne, at plaintiff’s request, that he would sign and file the pledge for plaintiff and pay the fee to said secretary at that hour, but said secretary advised said Martin that he would not accept the pledge with plaintiff’s name signed by another party. A copy of the rules of the Democratic party in Arkansas in effect at the times mentioned herein are attached hereto as a part of this stipulation.”

The entire rules of the Democratic party covering forty-six pamphlet pages were put in evidence, but we do not deem it necessary to burden this opinion with more than the following:

“Section 14. State Central Committee — Assistant Secretary. — To facilitate work of the Democratic organizations and that Democratic records may be preserved for future reference, the office of assistant secretary is hereby created. The said assistant secretary shall be appointed by the secretary of the State Central Committee subject to the approval of the said committee. It shall be his duty to keep the records in permanent form of all the proceedings and deliberations of State Central Committees and of State Conventions, and to perform such other duties as shall be required of him by the State Central Committee or by the officers thereof. His compensation shall be prescribed by the secretary.”

Section 42 of said rules provides:

“Candidates for nomination shall file a written pledge to abide by the results of the primary and to support the nominees of the party. ’ ’

Section 43 provides:

“All candidates for United States Senator, representatives in Congress and all State and district offices shall file the prescribed pledge with the .secretary of the 'State Central Committee not later than ninety (90) days before the election; and all candidates for county and township offices shall file the prescribed pledge with the secretary of the county central committee not later than thirty (30) days preceding the election; and all candidates for municipal offices shall file their pledges with the secretary of the city central committee not later than thirty (30) days preceding the election.
“No candidate’s name, who shall fail to sign and file said pledge, shall appear on the official ballot in said primary election. The chairman and secretary of the State Central Committee shall certify to the various county committees not later than July 20 the names of all candidates who have complied with the rules herein prescribed and no other names for such offices shall be put on the ballots by the county committees.”

The court, on its own motion, made the following finding of fact; to which the appellants excepted:

“That plaintiff was in the office of H. G. Combs, assistant secretary, before midnight, May 10, 1932; that, before midnight May 10, 1932, a person in Wynne, at the request of plaintiff offered to sign plaintiff’s name to a pledge in the office of the secretary and to pay his fee; that it was announced by Mr. Combs, in his office in the presence of plaintiff, that the ticket would close at midnight and any other candidates desiring to file pledges and pay fees could do so at that time.”

The appellants requested the court to make the following declarations of law, which the court refused to make, and appellants saved their exceptions:

“That this court has no jurisdiction; that the construction of the party rules which were made 'bv the committee is a matter entirely within the jurisdiction of the committee and not of this court; that where there are more than one reasonable construction to be placed upon the rules of the Democratic party and one of these constructions is adopted by the officers of the committee, this construction will govern.
“That filing the pledge and filing the fee on May 11, 1932, is not a compliance with the rules of the Democratic party.
“That the plaintiff did not file his pledge or pay his fee within the time prescribed by the rules of the Democratic party and that plaintiff is not entitled to have his name placed on the ballot.
“That § 9756 of Crawford & Moses’ Digest does not apply to computation of time in rule of the Democratic party.
“That § 3772 of Crawford & Moses’ Digest-is the only statute conferring a cause of action on a candidate; that said statute confers a right of action on a candidate only, and to contest only the certification of nomination or the certification of vote.
“That the officers of the Democratic State Central Committee are not officers within the meaning of §§ 70'20 and 7021 of Crawford & Moses’ Digest, or any other statute; that the court had no jurisdiction to issue a writ of mandamus directed to officers or members of the Democratic State Central Committee; that the plaintiff has a remedy by appeal to the Democratic State Central Committee.
“That defendants are not ministerial officers to whom this court has jurisdiction to direct a writ of mandamus; that the placing of plaintiff’s name on the ballot is not. a ministerial act, but is one which involves exercise of discretion on the part of the committee and its officers.”

The court then made and entered the following order and judgment:

‘ ‘ On this day comes the plaintiff in person and by his attorneys, Sam E. Montgomery and June P. Woolen, and come the defendants by their attorney, Chas W. Mehaffy, and this canse is submitted to the court upon the complaint, demurrer, answer and stipulation of facts. After argument of counsel, the court being well and sufficiently advised as to all facts and matter of law arising thereunto, doth sustain the prayer of the complaint.
“The court finds that the declarations of law and findings of fact requested by plaintiff are correct and are hereby adopted by the court.
“It is therefore by the court ordered and adjudged that a writ of mandamus issue herein, directed to the defendants as officers of the Democratic 'State Central Committee of Arkansas commanding them to accept and file the pledge and fee of plaintiff heretofore tendered to them as a candidate for the Democratic nomination for the office of State Treasurer of Arkansas, 'and that they as such officers of said committee certify the name of plaintiff as a candidate for the nomination of State Treasurer to the various Democratic county committees in Arkansas not later than July 20, 1932, for the purpose of having plaintiff’s name as such candidate printed upon the ballots to be voted at the Democratic Primary to be held in Arkansas on August 9, 1932.
“The defendants in open court, having knowledge of this judgment, waive actual service of said writ.”

To the findings and judgment of the court, the appellants, at the time excepted, and asked that their exceptions be noted of record, which was done.

Thereupon the appellant filed motion for a new trial, which was by the court overruled, exceptions saved, and the case is here on appeal.

The Democratic party in Arkansas provided for a legalized primary to be held on August 9, 1932, for the purpose of nominating candidates for the general election in November.

J. H. Andrews, at Wynne, Arkansas, is secretary of the State Central Committee, and Harvey Gr. Combs, of Little Rock, is assistant secretary.

Under the rules and regulations of the party, candidates for State offices were permitted to file the pledge required with the assistant secretary at Little Rock.

Rule 43 of the rules adopted by the Democratic party in Arkansas provides that candidates shall file the prescribed pledge with the secretary of the State Central Committee not later than ninety (90) days before the election..

The requirement to file the pledges and the time in which they must be filed, is fixed by a rule of the Democratic party, and not by statute.

As we have said, the primary election to be held on August 9th is a legal election, but the requirements, in order to have one’s name placed on the Democratic ticket as a candidate for nomination, are fixed by the rules of the party, and not by law.

It is contended however by the appellee that, although the party has a right to make rules, it has no right to construe the rules when made.

The agreed statement of facts in this case shows that the appellee, Mr. Montgomery, was at the office of Harvey Gr. Combs, assistant secretary of the Democratic Central Committee, about 11 p. m., on May 10, 1932.

Instead of filing his pledge at the office of the as-' sistant secretary, where other candidates were filing their pledges and paying the fee, and where the appellee knew he could pay his fee, file his pledge, and have his name put on the ticket, he mailed the pledge and the fee to J. H. Andrews, secretary, at Wynne, Arkansas, at 11:30 p. m., on May 10, 1932.

The pledge and fee were received by the secretary on the morning of May 11, 1932.

The officers of the State Central Committee, construing the rule, fixed the time for closing the ticket at midnight on May 10, 1932.

Notwithstanding this time was fixed and known to appellee, and he was advised of this decision on the part of the committee, and notwithstanding it was announced in Ms presence tliat the time for filing pledges and paying fees expired at midnight, appellee declined to file his pledge and pay his fee to the. assistant secretary, but mailed them to the secretary at Wynne, Arkansas, at a time when he knew it could not reach the secretary before midnight of May 3.0th, the time fixed for closing the ticket.

Appellee says there are two major questions' presented in this appeal. The first one is, did the court have jurisdiction to entertain the petition made?

It is further stated in' the argument of this question by appellee: “Where by statute a Democratic, primary election has been made a legal election, and a member of that party desires to become a candidate, complying with all the party rules, can the officer of the central (or executive) committee arbitrarily refuse to obey the law of the party by denying to such a member the right to become a candidate?”

We have no such case made by the pleading and evidence in this case. If the committee or officers acted either fraudulently or in such an arbitrary manner as to prevent a person who in good faith sought to comply with the party rules, the court would require the officers themselves to comply with the rules.

That, however, is a very different matter from saying to the central committee or its officers that they have a right to make rules but no right to interpret them.

It would be strange indeed, if the party had power to make rules, but could not, in good faith, construe them.

In this case there is no question of fraud or intention to deprive appellee of any right. The' appellants acted in good faith, and, if the position taken by appellee is correct, then the committee, or its officers, could not construe any rule of the party, but every time there was. any necessity for interpretation or construction; they would be controlled by the court.

• If the Legislature, in providing for the primary election law, had intended any such thing as this, it ■would have said so. The Legislature has provided for certain questions to he determined by the courts, but Avhen the party makes a rule governing its procedure, and in good faith interprets that rule, the court has no authority to substitute its interpretation for that of- the committee.

Of course, if there was any question of fraud, deception, wrongdoing, or anything else that prevented an elector from getting his name on the ticket, the courts would have jurisdiction to prevent the wrong. But we have no such question here.

It is stated that in the case of Tuck v. Cotton, 175 Ark. 409, 299 S. W. 613, the question involved there was purely a party matter, not governed by statute, and over which the court had no control. What we said in that case was that the Legislature had authority to give the court jurisdiction, but, unless it was clear that it intended to do this, the court will not assume jurisdiction, but will leave these matters to be determined by the political parties, just as they were before the enactment of primary election law.

We further held that the law7 does not seek to interfere with the management of party affairs by the central committee or conventions.

The courts have no power to interfere with the judgments of the constituted authorities of established political parties in matters involving party government and discipline, or to determine disputes within a political party as to the regularity of the election of its executive officers.

Attention is also called by the appellee to the-case of Spence v. Whitaker, 178 Ark. 51, 9 S. W. (2d) 769. We said in that case: “If one should deliberately fail or refuse to file the pledge required by the law, it would be the duty of the committee to refuse to put his name on the ticket.”

The rule involved in this case, as construed by the proper authorities of the party, required the pledge to be filed by midnight on May 10th. Is there any donbt that the appellee not only knew about the rule, but knew how the committee interpreted it, and knew, according to the committee’s interpretation, that the time ended at midnight on the 10th? He was present in Mr. Combs’ office and given the opportunity to file his pledge and get his name on the ticket, but he refused to do this, and at about 11:30 mailed his pledge to Wynne, Arkansas.

The court might put a different construction upon the rule, but it was the party’s business to make the rule and the party’s business to interpret it.

It appears from the record in this case that the officers of the party interpreted the rule, published it, and advised everybody who wished to become a candidate that the time for filing the pledge would end at midnight on the 10th.

The rule adopted by the Democratic party is not in conflict with any statute, and there is no statute prohibiting the party from, in good faith, interpreting its own rules.

We said in a recent case:

“Being a voluntary political organization and not an agency of the State, the Democratic party had the right to prescribe the rules and regulations defining the qualifications of membership, and to provide that only white people could become members, without coming within the prohibition of either the Fourteenth or Fifteenth Amendment..# * * There is no more reason to say that the Democratic party in Arkansas cannot make the rule in question than there is to say that the Masonic 'bodies in Arkansas may not exclude them on account of color.” Robinson v. Holman, 181 Ark. 428, 26 S. W. (2d) 66.

Appellee refers to 20 C. J. 112. In the same volume at page 104 it is said: “In the absence of constitutional or statutory provisions to the contrary, the authorities of a political party, such as State and county executive committees, may, in accordance with party usage, make and enforce reasonable regulations'relating to nominations within the party.”

In the instant case, as we have already said, there are no constitutional or statutory provisions contrary to the rule adopted by the party. It is a matter of common knowledge that, ever since the enactment of the primary election law and the adoption of the rule under consideration, the officers of the Democratic State Central Committee have placed its interpretation upon the rule by fixing the time within which the pledge must be filed. This action on the part of the officers of the committee is a matter of common knowledge.

It is done not only by the State central committee,' but by the county central committees and committees in cities and towns, and whenever such committee, in good faith, interprets and declares the meaning of the rule, the courts have no right or authority to put a different interpretation on the rule.

We said in the case of Robinson v.. Holman, supra:

“Political parties are political instrumentalities. They are in no sense governmental instrumentalities.
“The State has nothing to do with the holding of primary elections. The statute fixes the date for holding primary elections, but the State appoints no officers to hold a Democratic primary. It does not pay the cost thereof. The machinery for holding' a Democratic primary election in Arkansas is entirely an instrumentality created by the party with which the State, as a State, has nothing to do.”

The case of Combs v. Gray, 170 Ark. 956, 281 S. W. 918, discussed by appellee, involved the question of the adoption of a constitutional amendment.

Appellee also calls attention to the case of Walker v. Grice, 159 .S. E. 914. That case involved the right of the Democratic committee to remove from office persons appointed by it. That case was decided by the Supreme Court of South Carolina, and the court said:

“It is evident from the .above extract that the Legislature intended -to give primary elections a legal status, and to placo them, together with the entire party machinery, under the protection of the courts, not only for the purpose of punishing frauds, but also for the enforcement of rights acquired therein.”

But there is nothing in that decision holding that a court has authority to compel a committee, of a political party either to make a certain rule or to interpret a rule in a certain way.

The court also said in that case: “We call attention to the fact that the rules of the State Democratic party cannot conflict with the enactments of the Legislature as to primary elections whether state, county or municipal.

“We find no conflict between the rules of the State Democratic party and the statutory enactments.”

Attention is called to the case of People v. Democratic General Committee, 164 N. Y. 335, 51 L. R. A. 674. In that case it will be seen that the expenses of the primary election under the statute had to be paid by the same officers or boards, and in the same manner as the expenses of the general election. Besides that the court said, in discussing the power of the committee, that it provided many things for the conduct of the committee, but the right to expel a member was not one of them. It was said, in speaking of the Legislature:

“It decided that the wrongs that had been and were being done to the primary voters exceeded that which could result from occasional association with a hostile member. In other words, it was determined that the majority of the primary voters were entitled to select any representative they might desire, who should be responsible to those electing him, and only to them, for his conduct in office.”

The appellee quotes at length from the case of State v. Hunter, 134 Ark. 443, 204 S. W. 308. In that case the court construed a statute which provided that notice shall be filed “not less than fifteen days before the election.” The court held that, adopting the statutory rule of construction “where a certain number of days are required to intervene between two acts, tbe day of one only of the acts toiay be counted.” Many courts have construed statutes like the one involved in State v. Hunter just as the committee in this case construed the party rule. There is authority supporting each of the interpretations. The weight of authority probably supports the interpretation adopted by the officers of the committee. However this may be, there is authority to support the interpretation of the committee, and it had the right not only to make the rule but to interpret it.

' This court said in Jones v. State, 42 Ark. 93; ‘ ‘ Where a certain number of days are required to intervene between two acts, the day of one only of the acts is to be counted, but when a statute requires notice of at least a certain number of days before an act, this means so many full days, and the day of the notice and the act are both excluded from the computation. ’ ’ The court can compel the committee to act if it refuses to do so, but it cannot control its discretion.

Nearly all of the authorities referred to are based on statutes, and, of course, the committee could not make or enforce a rule that was prohibited by statute, or that was in conflict with the statute.

We have already said that, if there was any charge of fraud or arbitrary action, the court would have jurisdiction, and mandamus would lie to compel a compliance with the rules of the party.

It is contended by the appellee that the pledge was filed in time. What we have already said answers this question. That is, that the interpretation of the rule, .where it was done in good faith, and resulted in no harm io anybody, is for the committee and not the courts.

Appellants have referred to a great many cases which we do not deem it necessary to review here, because holding that the interpretation of the rule, in good faith, by the committee, ivas not subject to review by the courts, makes it unnecessary to discuss any other questions.

The judgment of the Pulaski Circuit Court is reversed, and appellee’s petition dismissed.

Smith, J.,

(dissenting). The statute provides: “The primary elections of all political parties shall he held on the second Tuesday in August preceding the general election.” Section 3758, Crawford & Moses’ Digest. That date, in the present year (1932), falls on August 9, 1932.

The majority say: “Rule 43 of the rules adopted by the Democratic Party in Arkansas provides that candidates shall file the prescribed pledge with the Secretary of the State Central Committee not later than ninety (90) days before the election. ’ ’ The fee for placing the name of the candidate on the ticket must be paid within the same time. The majority also say that the pledge and fee from Montgomery were received by the secretary (of the committee) on the morning of May 11, 1932. It is not questioned that the secretary of the committee was a proper person with whom to file the pledge and to whom the fee should be paid, although filing may be made with, and payment may be made to, the assistant secretary of the committee.

It occurs to me therefore that the only question in the case is, whether Montgomery filed his pledge and paid his fee “not later than ninety (90) days before the election.”

It is true the chairman and secretary of the Democratic State Central Committee announced that this rule could be complied with only by paying the fee and filing the pledge on or before midnight of May 10, 1932, but, this construction to the contrary notwithstanding, the rule remained unchanged. I do not understand that it is contended, or that it is the intention of the majority to decide, that the chairman and secretary have power to make rules. It is held only that they may construe the rules, but that, when this construction is publicly announced and fairly made, it becomes as binding as a rule itself. From this holding I respectfully dissent. If a rule is erroneously construed, but must be modified to conform to that construction, if publicly announced and fairly made, this can be nothing more nor less than the power to amend the rules 'by construction. I submit that the chairman and secretary have no such power.

It must not be forgotten that this primary election is a legal election, and that we have not only party rules, but we have statutory regulations applicable thereto. These party rules must be construed with reference to all applicable statutes and judicial constructions thereof. The present proceeding partakes of the nature of a contest by an eligible candidate before the chairman and secretary of the committee, who are assuming to act for the committee, to enforce his right to become a candidate.

Section 3778, Crawford & Moses’ Digest, appears to have relevancy upon this issue. It reads as follows: “All laws or rules of political organizations holding primary elections providing for contest before political conventions or committees other than the proceedings herein provided shall be of no further force or effect.”

We get back therefore to the question with which we started, the correct answer to which should control the decision of this case, and that is, did Montgomery in fact file his pledge and pay his fee within the time fixed by the party rules when properly construed?

We have a statute which I think very definitely decides this question. That is § 9756 of Crawford & Moses1 Digest, which reads as follows: “Where a certain number of days are required to intervene between two acts, the day of one only of the acts may be counted. ’ ’

It is a matter of calculation, about which there is no question nor room for construction, that if, as the statute quoted requires, either May 11th or August 9th is counted (and only one of these dates may be counted), Montgomery paid the fee and filed his pledge ninety days before the election. Any correct calendar will verify this calculation.

■ ■The exact question here presented was expressly decided in the case of State v. Hunter, 134 Ark. 443, 204 S. W. 308, which was also an election case. The facts in that case were that the election commissioners of Perry County were indicted for suppressing the certificate of nomination of a candidate for sheriff, contrary to the statute which provides that such certificates of nomination shall be filed with the county election commissioners “not more than sixty days nor less than fifteen days before the election.” The argument was there made that under this statute fifteen full days must intervene between the date of filing the nominating certificate and the date of the election. In overruling that contention, it Avas there said: “Counsel rely on the decision of this court in Jones v. State, 42 Ark. 93, where, under a statute providing that road hands ‘ shall have at least three days ’ actual notice’ before being required to work on public roads, the court held that the statute required three full days to intervene betAveen the giving of the notice and the day the Avork was to begin. We do not think that case controls the present one. We have another statute Avhich provides that Where a certain number of days are required to intervene between íavo acts, the day of one only of the acts may be counted.’ Kirby’s Digest, § 7822. Applying that rule to the language of the statute uoav under consideration, it does not mean that there must be fifteen full days intervening between the filing of the notice with the commissioners and the day of election. The language of the statute is that the notice shall be filed ‘not less than fifteen days before the election,’ and under the statutory rule of interpretation one of the days should be excluded in the count. Adopting that rule of construction, the certificate of nomination Avas, according to the allegation of the indictment, filed Avithin the time prescribed by statute. ’ ’

If that decision is adhered to, it must follow that Montgomery paid his fee and filed his pledge “not later than ninety (90) days before the election,” and the chairman and secretary of the committee Avere Avithout power to hold othenvise, regardless' of their good faith in so holding.

It is therefore my opinion that the judgment of the circuit court should he affirmed.


text:
    Texarkana v. Taylor.
    Cr. 3806
    Opinion delivered June 27, 1932.

      Willis B. Smith and Ben E. Garter, for appellant.

      Paul Jones, B. B. Bacon and Will Steel, for appellee.
   Smith, J.

In the trial of this ease in the court below the court, after hearing the testimony, made a finding of facts, the correctness of which is not questioned. It reads as follows:

“The court finds that H. H. Taylor is a resident of Texarkana, Texas, is a practicing attorney of that city, that he has an office in that city and has no office in Texarkana, Arkansas. He is here prosecuted for failing to pay an occupation tax to the city of Texarkana, Arkansas, for 1931. During that year he appeared in the municipal court of Texarkana, Arkansas, as attorney for various parties at least 25 times. He had one client whose office was in Texarkana, Arkansas, and he consulted with this client as its attorney in its office in Texarkana, Arkansas. He has been admitted to practice before the Supreme court and the other courts of the .State of Texas.
“The court finds as a matter of law that the city of Texarkana does not have authority to impose an occupation tax on attorneys who appear in the courts in that city unless they reside in that city, or have an office or place of business there. Taylor does not have an office or place of business in Texarkana, Arkansas, nor does he reside in that city. He is not therefore liable for the occupation tax, and the court therefore finds him not guilty.
“It is the opinion of the court that the statutes of Arkansas grant to Taylor, as a Texas attorney, the right to appear in the courts of this State. See 60S to 606, inclusive, of Crawford & Moses’ Digest. If the city has the power to tax the exercise of this right, it has the power to destroy it. The court does not think the Legislature meant to vest in the city the right to say who should appear as attorneys in the courts held in the city. The court therefore finds that the power to impose an occupation tax on attorneys which was vested in the city by § 7618 of Crawford & Moses’ Digest did not include the power to tax an attorney who neither resides in nor has an office or place of business in the city, and who only appears in court and/or advises his clients in said city.
“The court therefore finds the defendant not guilty.”

Section 7618, Crawford & Moses’ Digest, to which the court referred, provides that hereafter any city of the first or second class shall have the power to enact ordinances requiring any person, firm, individual or corporation who shall engage in, carry on or follow any trade, business, profession, vocation, or calling, within the corporate limits of such city (with certain exceptions not here involved) to take out and procure a license therefor, and to pay into the city treasury the amount of money specified in such ordinance for such license and privilege.

Pursuant to the power thus conferred, the city of Texarkana, a city of the first class, passed an ordinance imposing an occupation tax, which provides: “That it shall be unlawful for any person, firm or corporation or' individual in the city of Texarkana, Arkansas, to engage in the following businesses, trades, occupations, vocations, callings or professions without having first obtained and paid the license therefor from the city collector, the amount of which license is hereby fixed in this ordinance.” Attorneys-at-law are included in the occupations there named and taxed.

Similar ordinances, .enacted in other cities have been upheld, and the question of power need not be reviewed. That has been definitely settled. Davies v. Hot Springs, 141 Ark. 521, 217 S. W. 769; McIntosh v. Little Rock, 159 Ark. 607, 252 S. W. 605; Shepherd v. Little Rock, 183 Ark. 244, 35 S. W. (2d) 361.

It is argued very earnestly and with much plausibility that the Texarkana ordinance, by its terms, applies only to residents of that city pursuing the named occupations, etc., within its limits. But whether this be true or not, we think the court below was correct in holding that § 605, Crawford & Moses’ Digest, applied to and governed in this case, and that appellee’s status was that of an enrolled nonresident attorney, within the meaning of that section.

Chapter 3 of Thornton on Attorneys-at-Law is devoted to the subject of taxation of attorneys. Yol. I, page 103. After citing cases from numerous courts to the effect that nonresident attorneys who pursue their profession in cities other than that of their residence may be taxed in such cities, the author says: “It is doubtful if mere incidental practice would subject a nonresident to taxation.”

The court below evidently regarded the practice of appellee in the courts of this State as merely incidental to the practice of his profession in the adjoining State, and that he was not therefore subject to the tax. We concur in this view.

Section 605, Crawford & Moses’ Digest, is applicable to such cases' and governs in this. .This section provides that justices of the peace and the clerks of courts of record .shall keep a record of nonresident attorneys enrolled in such court, and shall charge each nonresident attorney a fee of a dollar for such enrollment. This section applies not only to cities of the first and second-class, but to the entire State, and, as there does not appear to be any authority for the exaction of any other fee from appellee, the judgment of the court below must be affirmed, and it is so ordered.


text:
    Vineyard v. Storm.
    4-2611
    Opinion delivered June 27, 1932.

      Verne McMillen and W. G. Dinning, for appellant.

      Bretuer $ Cracraft, for appellee.
   Smith, J.

Three separate suits were brought in the Phillips Circuit Court - against Gr. H. Vineyard, doing business as Vineyard Transfer Company, to recover damages occasioned by the collision between an automobile driven by one Laurens Whipple Milner, Jr., and a truck driven by an employee of Vineyard. One suit was by the executrix of the estate of Milner, Jr., the latter having been killed in the collision. Manual Lupkin, who was in the car, sued also to recover compensation for his personal injury. The third suit was brought on behálf of the owner of the car, who was not in it at the time of the collision. Judgment was rendered in favor of the plaintiff in each case, in the first for $5,000, in the second for $250, and in the third for $250 also, and. this appeal is from those judgments.

The negligence alleged as constituting the causes of action was that the truck driver ‘ ‘ did negligently, carelessly and recklessly, Awhile operating said truck at a high rate of speed, Avithout regard for the safety of others, and while on the wrong side of said road, did run said truck against and caused it to collide with a Pontiac roadster driATen hy the deceased, wTho was at the time as far over as he could possibly be on the right side of the road, going to the toAvn of Marianna, and Avhile he Avas driving said ear carefully and AAÚth due regard for his OAvn safety and the safety of others.”

The ansAver put the truth of these allegations in issue in each case, and the cases Avere heard on conflicting testimony, that on the part of the plaintiffs being sufficient to support the finding that the collision resulted from the negligence of the driA7er of the truck in the particulars stated. The issue of fact was submitted under instructions which are not questioned as correct declara^ tions of laAV.

We think, no useful purpose Avould be served by a detailed statement of the conflicting testimony, and for that reason we do not set it out. It must suffice to say that the testimony on the part of the plaintiff is legally sufficient to support the finding that the collision was the result of the negligence of the driver of the truck.

In the argument of the case before the jury counsel for plaintiff, replying to the argument of counsel for defendant, said: “They say Mr. Vineyard will have to pay it (the judgment). I say the insurance company will have to pay it. ’ ’ Upon objection being made to that statement, the court said: “That is an improper argument. The attorney for the plaintiff stated that he Avas undertaking to say that the money comes out of Mr. Vineyard, and he says it will come out of the insurance company, to AAdiich remark the defendant excepts, and the attorney for the plaintiff offers to withdraw the argument, and the court admonishes the jury not to consider that statement in any respect, which the attorney for the plaintiff made. It is highly improper, and the attorney for the plaintiff is instructed to refrain from any such argument.”

This was an improper argument, hut it appears to have been made in response to an argument equally improper. In a sense, it was invited error, and that fact cannot be' overlooked in determining the sufficiency of the ruling of the court in removing its prejudice. Caddo River Lbr. Co. v. Grover, 126 Ark. 449, 190 S. W. 560.

However, we think the admonition of the court to the jury was sufficient to remove any prejudice that might otherwise have resulted. Numerous cases have settled the practice that a large discretion must be exercised by the trial court in determining the action to be taken when counsel have gone beyond the bounds of legitimate argument, the action in each case being such as is deemed appropriate to eliminate the prejudicial effect of the improper argument, and judgments are not reversed because of the argument where that action was taken. We think in the instant case that the ruling of the court was sufficient to remove the prejudice.

Upon the whole case we find no prejudicial error, and the judgment must be affirmed. It is so ordered.


author: MoHaney, J.

text:
    Cade v. State.
    Crim. 3813
    Opinion delivered June 27, 1932.

      Price Dickson, Karl Greenhaw and Duty $ Duty, for appellants.

      Hal L. Norwood, Attorney General, and John H. Caldwell, Assistant, for appellee.

      John Mayes, Earl Blansett and John W. Nance, amici curiae.

   MoHaney, J.

Appellant, O. W. ¡Bass, is the county superintendent, and the other appellants are members of the county board of education of Washington County, Arkansas. At the April, 1932, term of the Washington Circuit Court, they were indicted by the grand jury of said county for falsely and fraudulently certifying the returns of the election held in that county on the first day of March, 1932, for the election of members of the county board of education. The indictment charged that appellants falsely and fraudulently certified one Paul Brogdon as having been elected to the county board of education, when in truth and in fact one A. W. Mintun was elected. After the indictment was returned, the prosecuting attorney filed a petition with the court praying for an order suspending them from office under § 10,335, Crawford & Moses’ Digest, to which appellants filed response. The court- granted the prayer of the petition and suspended appellants from office pending their trial upon said indictment. From this order of suspension appellants have appealed.

For a reversal of the case appellants make two contentions: First, that § 3888 of Crawford & Moses’ Digest, under which they say they were indicted, has no application to school elections; and, second, that the members of the county board of education and the county superintendent are not county officers, within the meaning of said § 10,335.

Section 3888, Crawford & Moses’ Digest, reads as follows: “Any election officer or other person whosoever who shall wilfully make a false count of any election ballots, or falsely or fraudulently certify the returns of any election, or steal, destroy, secrete or otherwise make way with any election ballot, tally sheet, certificate or ballot box, either before or after the closing of the polls, shall be deemed guilty of a felony, and, on conviction thereof, punished by imprisonment at hard labor in the penitentiary not less than two years nor more than seven years.”

The court suspended appellants from office under § 10,335, which provides, in substance, that, when an indictment is filed in any circuit court against “any county or township officer” for the offenses therein named, the court shall immediately order such officer suspended from office until tried. “Provided, such suspension shall not extend beyond the next term after the same shall be filed in such circuit court, unless the cause is continued on the application of the defendant.”

Section 3888, above quoted, is a part of the election laws of this State, and is § 43 of the act of March 4,1891, Acts 1891, p. 32, entitled, “An act to regulate elections in the State of Arkansas.”

.Section 30 of act 169, Acts 1931, p. 476, same being designated in § 1 as the “School Law,” provides that the election returns of all school elections shall be made to the county superintendent of schools immediately after the election; that he shall call a meeting of the county board within fifteen days after the election; that said board shall canvass the returns and certify the result to the county clerk for record in his office. Provision is made for notification and issuing commission to those elected to the board, and for contests. It is further provided that: “The election laws regulating the nomination and certification of the names of candidates for county offices shall govern in the matter of candidates for members of the county board of education.” This has reference to the manner of getting the names of candidates for membership on the county board on the ticket to be voted on in the annual school election. The annual school election, held on the first Tuesday in March each year, is not a primary but a general election — a general school election. Any elector of the county may become a candidate for membership on the board by paying- a fee of $1 to the county treasurer, not later than 20 days before the election. We see no reason why § 3888 should not apply to the general annual school election as well as to other general elections. Its terms are sufficiently broad to include the county board. It applies to “any election officer or other person whomsoever who shall * * * falsely or fraudulently certify the returns of any election.” If it does not apply, there is no applicable statute defining and punishing this particular offense or breach of duty. It is suggested that § 197 of said act 169 applies. It provides that “any * * * county board of education * * * who shall wilfully fail or refuse to comply with any provision of the ‘school law’ for which no punishment is otherwise provided by law shall be deemed guilty of a misdemeanor and shall be fined in any sum not less than ten ($10) dollars, nor more than five hundred ($500) dollars.” We think this section has no application, as we are of the opinion that punishment is otherwise provided by law in said § 3888, and that appellants did not fail or refuse to comply with the law. It is further argued that this court, in Stout v. State, 43 Ark. 413, and in Brown v. Haselman, 79 Ark. 213, 95 S. W. 136, held that the provisions of the general election law had no application to school elections. In the former case we held that the provision of the general election law of January 23, 1875, (§ 3881, Crawford & Moses’ Digest) prohibiting the giving away or selling intoxicating liquor on election day, did not apply to an election for a school director at an annual school meeting provided for by the Common Schools Act of 1875. In the latter case we held that § 1667, Kirby’s Digest (now§ 3883, Crawford & Moses’ Digest) had no application to a school election. Section 3883, as well as § 3881, are parts of the act of January 23, 1875, p. 92, Acts 1875, which was entitled “An act providing a general election law.” In the latter case we said: “The act, in term applies only to general elections of State, county and township officers, and to special elections held to fill vacancies in said offices.” The reason for the holding in the two cases above mentioned therefore becomes apparent. The act in question in this case is entitled ‘ ‘ An Act to Regulate Elections in the State of Arkansas.” It is therefore not limited in its title to general elections, such as the act of 1875 above mentioned, and, being broad enough in its terms to apply to school elections, we hold that § 3888 of the Digest is applicable to the case at bar.

The next question for determination is whether the county board of education and the county superintendent are county officers. As to the county board of education, we think there can be no question that they are county officers. Its members are elected for a definite term. Their jurisdiction extends to the whole county. As a board, it is given broad and comprehensive powers over the conduct and management of the schools of the county, including the organization, reorganization and change in boundary lines of school districts. They are given all the powers formerly conferred upon the county court. As to the county superintendent, while he is not elected at the annual school election by direct vote of the people, he is elected by the county board, for a definite term, not to exceed two years, and his jurisdiction is co-extensive with the county. See 32, 33, 42, 92 of Act 169 of 1931. While he is not a member of the county board, he is in express terms by said act made an executive officer of the board. The act requires returns of the school election to be made to him, and, within 15 days, he is required to call a meeting of the county board to canvass and certify to the county clerk the returns of said election. The law permits him to act as secretary of the board, or they may elect some member of the board as secretary. Whether appellant Bass is secretary of the county board, the record does not disclose, but he is an executive officer thereof, and as such it is alleged that he participated in the acts charged in the indictment. We therefore hold that both he and the members of the county board are county officers within the meaning of § 10,335, Crawford & Moses’ Digest. See also Lucas v. Futrall, 84 Ark. 540, 106 S. W. 667; Middleton v. Miller County and Miller County v. Kosminsky, 134 Ark. 514, 204 S. W. 421; Warren v. McRae, 165 Ark. 436, 264 S. W. 940; Ft. Smith v. Quinn, 174 Ark. 863, 296 S. W. 722. In the second case above mentioned, we held that the position of county health officer is not an office and does not come within the constitutional provision concerning officers holding over after the expiration of their respective terms, until the election and qualification of their successors. In the case last cited we held that a member of the city fire department was an officer of the city of Fort Smith under the act then under consideration and entitled to his salary during the time he was wrongfully excluded from office.

We are therefore of the opinion that both contentions of counsel for appellants can not be sustained, and that the judgment of the circuit court suspending them from office is correct and must be affirmed.