author: Smith, J.

text:
    Miller v. State, use Woodruff County.
    Opinion delivered January 23, 1928.
    1. Counties — warrants issued in -excess of revenue. — Under Amend. 11 to the Constitution (Acts 1925, p. 1086), county warrants issued in excess of revenues for the fiscal year are void.
    2. Counties — validity of warrants. — Warrants issued for existing indebtedness of the county, at a time when there was insufficient money in the county treasury to redeem them in the year of their issuance, are not on that account invalid, since the inhibition of the Const. Amend. 11 is that expenditures shall not exceed the revenues, and it is a violation.of the inhibition which renders the allowance of warrants invalid.
    8. Counties — warrants issued for outstanding indebtedness.— While a county cannot increase the amount of its existing indebtedness by incurring debts in excess of its current revenue, it is not an increase of indebtedness within Amend. 11, where a county, which cannot redeem all outstanding indebtedness, at the beginning of a fiscal year issues warrants which cannot be redeemed through lack of funds, but which, when issued, are not in excess of indebtedness outstanding at the end of the prior fiscal year.
    4. Counties — redemption op warrants. — County warrants issued in any year which did not exceed the revenue of the county for that year are redeemable in the ensuing year, though payment thereof makes it impossible to redeem warrants issued that year, and hence where the revenues of a county for 1927 were $29,-738.20 and the expenditures $21,196.48, the county treasurer should be allowed credit for redemption of $19,441 of outstanding warrants, though a sufficient sum did not remain in the treasury to redeem the warrants issued in 1927.
    Appeal from Woodruff: Circuit Court, Northern District; W. D. Davenport, Judge;
    reversed.

      W. J. Dungm and J. F. Summers, for appellant.

      Roy D. Campbell, for appellee.
   Smith, J.

Appellant became the county treasurer of Woodruff County on January 1, 1926, and is now acting- in that capacity. Notice was served on him that, on October 10,1927, his quarterly settlements previously filed and approved in the year 1927 would be examined for errors in allowing’ improper credits in said settlements. The county court found that the treasurer had been improperly allowed credits for certain warrants, most of which had been paid him by the collector on account of the collection of the 1926 taxes. Prom this order an appeal was duly prosecuted to the circuit court, where the court found that certain warrants, which had been issued in the years 1925 and 1926, but which had been reissued in May, 1927, under an order of the county court calling in outstanding warrants for reissuance, had been received by the county treasurer in satisfaction of demands in favor of the county aggregating $19,441; that, having received these warrants, there did not remain in the treasury enough money to redeem other warrants which had been issued in payment of the county’s expenses for the fiscal year 1927.

It was shown in the trial below that the revenues of the county for the year 1927 were $29,738.20, and that the expenditures, for that year were $21,196.48, but, as the treasurer had received $19,441 of warrants outstanding* at the beginning of the year 1927, there did not remain in the county treasury enough money to redeem all the warrants issued in the year 1927, and the court held that this must first be done before the treasurer • would be authorized to receive for any purpose any warrant outstanding at the beginning of that year, and, upon this theory, adjudged that the county treasurer had been improperly allowed credit for such warrants. In other words, the warrants issued in 1925 and 1926, and which were ieissued in 1927, were valid warrants, but, by receiving and redeeming* them, there was not left sufficient funds to redeem all the warrants issued in 1927, and it was held by the circuit court that such warrants could not be redeemed until all the expenses of 1927 had first been paid.

•Counsel review the recent decisions of this court construing the amendment to the Constitution commonly referred to as Amendment No. 11, and it is insisted that the opinion in the case of McGregor v. Miller, 173 Ark. 459, 293 S. W. 30, decided April 4, 1927, and the opinion on rehearing in the same case, delivered' April 25, 1927, are controlling here, and support the finding* of the court below.

We have here, however,, a different state of facts. There a certain warrant which had been issued in 1926 was, together with other warrants which had been previously issued in that year, slightly in excess of the total revenues of the county for that year, and we held that, to the extent of this excess, the warrant was void, but tfiat it might be reissued in an amount which, in connection with other warrants previously issued, did not exceed the total revenues of that year. Certain other warrants were issued in 1926 on demands which arose in the prior fiscal year of 1925 and which, when issued, were in excess of the 1926 revenues. In elucidating the original opinion we said, in the opinion on the rehearing, that:

“'We think we have made it plain that a county cannot incur any obligation in any year which exceeds the revenues of that year, and, if this is done, such obligations are void, and cannot be paid out of the revenues of a succeeding year. If this could be done, obligations could thus be carried from one year to another. The revenues of one year would be applied to the discharge of obligations of a previous year, and one of the purposes of the amendment was to prevent this from being done.”

We there further said:

“Those warrants are valid which, at the time of their issuance, do not exceed the revenues. All others are void. The holder of a valid warrant may, by an appropriate action, compel the receipt and payment of his warrant to the exclusion of an invalid warrant, and he may, if necessary, enjoin the redemption of an invalid warrant. More than that, the invalid warrant cannot be received by any collecting officer of the county, and the officer who does receive it does so at his peril, and is not entitled to take credit for it in any settlement of his accounts, because the warrant is void. It is issued without authority, and the action of a collecting officer in receiving it cannot give it validity. ”

We were, of course, there speaking of void warrants, and the thing which made them void was that they were in excess of the revenues for the year in which they were issued.

For the same reason the claim involved in the case of the Dixie Culvert Co. v. Perry County, 174 Ark. 107, 294 S. W. 381, was held void. The county court had contracted an obligation which, in conjunction with other obligations previously contracted, was in excess of the county’s revenue for the year in which the obligation was incurred, and we held the contract void for that reason.

We have here a wholly different case. The warrants were not invalid at the time of their issuance: at least they are not shown, to have been so. There was not enough money in the county treasury to redeem them in the year of their issuance, but they were not invalid on that account. The inhibition of the amendment is that expenditures shall not exceed revenues, and it is a violation of this inhibition which renders the allowance invalid.

In the case of Nelson v. Walker, 170 Ark. 170, 279 S. W. 11, we quoted from the prior case of Kirk v. High, 169 Ark. 152, 273 S. W. 389, 41 A. L. R. 782, as follows':

“ We think the amendment means' just this: That, if a county, city or town avails itself of the provisions authorizing the taking up of its outstanding indebtedness, it shall not thereafter draw warrants upon the treasurer for an amount in excess of its annual revenues. It must' stay out of debt. It means, further, that, if a city, county .or town has any outstanding unpaid warrants which it does not take up by issuing bonds as authorized by the amendment, it must not add to its existing indebtedness by issuing more warrants than can be paid out of the revenues of the current year. ’ ’

A county, whether it issued bonds or not, cannot increase the amount of its existing indebtedness; but it is not an increase of indebtedness if a county, which cannot redeem all its outstanding warrants, issues others which cannot be redeemed through lack of funds, but which, when issued, are not in excess of the indebtedness outstanding at the end of the prior fiscal year. To illustrate: If a county has an outstanding indebtedness of $19,441, as Woodruff County had at the beginning of the fiscal year, it may, during that year, issue warrants which, while they cannot be redeemed, do not exceed the indebtedness existing at the beginning of that year. The amendment does' not prohibit this. The prohibition of the amendment is against increasing the amount of the indebtedness.

The ease of Polk County v. Mena Star Co., 175 Ark. 76, 298 S. W. 1002, delivered October 17,1927, is directly in point. There allowances were made by the county court in the year 1925 which did not equal the revenues of that year, but the redemption of valid outstanding warrants out of the revenues of that year made. it impossible to redeem all the claims contracted and allowed that year. This was true also in the year 1926, so that there remained outstanding warrants which could not be redeemed. It was held that these facts did not prevent- the county from contracting’ necessary obligations which could 'be paid only by the issuance of warrants which could not be redeemed out of the revenues of 1926*, and that such obligations might be paid out of the revenues of a subsequent year. This was true because these last obligations, which were paid by warrants, which could not be redeemed in the year of their issuance, were not expenditures in excess of revenues. The county did not, in issuing those warrants, which could not be redeemed in the year of their issuance, increase the county’s indebtedness.

We held, in the cases of Kirk v. High, 169 Ark. 152, 273 S. W. 389, 41 A. L. R. 782; Ivy v. Edwards, 174 Ark. 1167, 298 S. W. 1006, and Lake v. Tatum, 175 Ark. 90, 1 S. W. (2d) 554, that a county may ¡build a courthouse, although its cost could not be paid out of the revenues of the year in which its construction was authorized, but that this could be done only when it had been ascertained that, by distributing the payment of the cost over a period of years, these installments of cost would not, in connection with the other essential expenses of government, exceed the revenues of the county for the years in which such payments were to be made. In the last of those cases, that of Lake v. Tatum, we said that: “In other words the limit of the amount for which a county may contract for in any one fiscal year is the difference between the amount of its necessary governmental expenses or fixed charges in running its government and the total county revenue which -can be derived from levying and collecting county taxes in any one year”; and that, if a county makes a contract which requires payments over a period of years, these payments must be taken into account-in determining what other expenses may be incurred, and that the total expenditures, including such payments, shall not exceed the revenues.

But here, as in the case of Polk County v. Mena Star Co., supra, expenditures have not exceeded revenues. The receipt by the collector and the redemption by the treasurer of valid warrants, which those officers could not refuse when tendered in payment of any demand due the county, made it impossible to redeem all the warrants issued in the year 1927, but those unredeemed in the year of their issuance may.be redeemed, as was said in that case, out of the revenues of a subsequent year, and this is true because, in so doing, the indebtedness of the county is not increased.

The original order of the county court allowing the treasurer credit for these valid outstanding warrants was correct, and the later order of the county court and that of the circuit court on appeal were erroneous, and the judgment here appealed from will be reversed, and the cause remanded, and the circuit court will direct the county court to allow the treasurer credit therefor.


source: Caselaw Access Project

author: Mehaffy, J.

license: Public Domain

text:
    Schooley v. State.
    Opinion delivered January 23, 1928.
    1. Seduction — corroboration of prosecutrix. — Where accused, in a prosecution for seduction, admitted having intercourse with the prosecutrix, there was no necessity for corroboration of her testimony as-to such fact.
    2. Witnesses — cross-examination.-—On cross-examination, a witness can be asked any. questions bearing on his character tending to throw light on matters affecting his credibility for purposes of impeachment, and may be asked whether he has committed particular wrongful or immoral acts, if the commission of such acts affects his credibility.
    3. Witnesses — cross-examination of witness. — In a prosecution for seduction, refusal to permit cross-examination of the sister of prosecutrix, as for purposes of impeachment, as to whether she had not had improper relations with a certain man and whether she had not been intoxicated on certain occasions, held error.

      4. Witnesses — impeachment on cross-examination. — On cross-examination, a witness cannot be asked questions as to the conduct and declarations of others for purposes of impeaching his credibility as a witness, but the question must be confined to his own conduct.
    5. Witnesses — cross-examination—conclusiveness op answer.— On cross-examination of a witness as to particular facts for the purpose of impeaching his testimony, his answers conclude the party asking the questions and cannot be contradicted.
    6. Criminal law — statement op attorney regarding excluded question. — Where the question whether a witness had not had illicit relations with a certain man, asked by defendant on cross-examination of the sister of the prosecutrix in a seduction case, was excluded, the statement of defendant’s attorney that he expected to prove the facts suggested in the question sufficiently showed what the answer of the witness would have been in order to show whether prejudice resulted from its exclusion.
    7. Criminal law — exclusion op testimony — prejudice.—In a prosecution for seduction, in which the State relied largely on the testimony of the sister of prosecutrix to corroborate her testimony respecting the promise of marriage, exclusion of a question as £o whether the witness had not been drinking liquor or was intoxicated on a certain occasion, asked on cross-examination to affect her credibility, held prejudicial error.
    8. Criminal law — waiver op objection. — Where, after the court refused to permit defendant’s attorney to cross-examine a witness concerning whether she had been intoxicated on a certain occasion, defendant’s attorney stated that “at present we will not pursue it further,” held that he did .not thereby abandon the question or any rights that he might have by reason of his objection and exception.
    9. Criminal law — hearsay evidence. — In a prosecution for seduction, the court erred in permitting the State to prove a conversation between the father of prosecutrix and the father of defendant, in which the former stated that his daughter had told him that defendant had promised to marry prosecutrix, where defendant had no opportunity to reply to such statement.
    10. Seduction — chastity op prosecutrix. — In a prosecution for seduction, an instruction that, if the prosecutrix was chaste at the time of the promise of marriage but became unchaste thereafter, they should acquit defendant, was properly refused, since, if she were chaste at the time of the promise of marriage and when defendant committed the crime, her subsequent conduct would not affect his guilt or innocence.

      Appeal from Howard Circuit; B. E. Isbell, Judge;
    reversed.

      Luke Monroe and Feasel S Steel, for appellant.

      H. W. Applegate, Attorney Greneral, and John L. Garter, Assistant, for appellee.
   Mehaffy, J.

Appellant was indicted, tried and convicted in the Howard Circuit Court on a charge of seduction, and his punishment fixed at one year in the penitentiary and a fine of one hundred dollars. Appellant filed motion for new trial, which was overruled, exceptions saved, and appeal prosecuted.

The proof shows that appellant, who was about twenty years old, had intercourse with the prosecuting witness, Dura Stone, a girl about eighteen years old. Appellant admitted having intercourse with her.

Dura Stone testified that appellant promised to marry her.

Several men testified that they had had intercourse with Dura Stone, some of them fixing the date at which they had intercourse with her at a time prior to the time she says appellant promised to marry her. She denied having intercourse with any one except appellant, either before or after the time she says appellant promised to marry her.

Since appellant admitted having intercourse with the prosecutrix, there was no necessity for other corroboration of her testimony as to intercourse. There was some evidence corroborating the statements of prosecutrix as to promise of marriage.

Appellant’s first contention is that the court erred in not permitting the defendant to question Yee Stone, on cross-examination, with reference to her past conduct. On cross-examination Yee Stone, sister of Dura Stone, was asked: “I will ask you if it isn’t true on that occasion Max Dyer had intercourse with you?”

This question'was objected to, and the court said: “That is improper,” and defendant’s counsel said, “We offer to show that.” Objection was made to the ruling of the court, and exceptions saved. Witness was then asked: “Do you remember going to a dance at Hunter’s in the'fall of 1925?” She answered: “I do not remember. ' I went to several dances there, but do not remember when. ”

The court then said: ‘ ‘ What is the purpose of that ’ ’

The attorney for the defendant said: “We offer it as affecting her credibility. We offer to show by the witness that she attended a dance at Abb Hunter’s, in the fall of 1925, and in returning she was overtaken by Sam Schooley and Hilton Keath, and that she and Dura rode home with these men. That at that time she and her sister were under the influence of liquor, and that she drove the car into a telephone post.”

Thereupon the court said: “You can ask Dura that, because she is the prosecutrix. You can ask that so far as it applies to the prosecuting’ witness, but not as to her. ’ ’

Defendant’s attorney said: “At present we will not pursue it further,” and saved exceptions to the court’s ruling.

A witness may always be asked, on cross-examination, questions bearing on his or her character which tend to throw light on matters which are proper for the purpose of impeachment. She may be asked about particular acts which affect her credibility for the purpose of impeachment, and may be asked whether he or she has committed particular wrongful or immoral acts if the commission of'such acts would affect the credibility of the 'witness.

The court therefore erred in not permitting the defendant to ask Vee Stone the questions about her conduct.

This court, in a recent ease, said:

“It has always been held that, within reasonable limits, a witness may, on cross-examination, be very thoroughly sifted upon his character and antecedents. The court has a discretion as to how far propriety will allow this to be done in a given case, and will or should prevent any needless or wanton abuse of power. But, within this discretion, we think a witness may he asked concerning all antecedents which are really significant and which will explain his credibility. * * * A witness, upon cross-examination, may be asked whether he has been in jail, the penitentiary or State prison, or any other place that would tend to impair his credibility, and how much of his life he has passed in such places.” Whittaker v. State, 171 Ark. 762, 286 S. W. 937.

In the last cited case many of the authorities are cited and reviewed, and we deem it unnecessary to set them out here. The well-established rule in this State is that the witness, on cross-examination, may be asked any question that affects the credibility of the witness. A witness, however, cannot be asked questions as to the conduct and declarations of others, but the' question must be confined to his own conduct. And where witnesses are asked, on cross-examination, as to particular facts, as in this case, for the purpose of impeaching the witness, the answer of the witness concludes the party asking the question, and cannot be contradicted by other evidence.

The /State, however, contends that there is nothing in the court’s ruling on these questions that would justify this court in reversing the judgment of the lower court, and states that this case comes well within the'rule of this court that, where a question is excluded on cross-examination and exceptions saved thereto, in order to' show that prejudice resulted, the record must show what the answer of that witness would have been, and cites the recent case of Williams v. State, 175 Ark. 752, 2 S. W. (2d.) 36, delivered December 12, 1927. In that case the court said:

“At the outset it may be stated that the questions asked the witness on cross-examination by counsel for defendant were proper, under Hughes v. State, 70 Ark. 420, 68 S. W. 676, and Martin v. State, 161 Ark. 177, 255 S. W. 1094.”

The court also said in that case: “In this connection it may be stated, however, .that it is a settled rule of this court not to reverse judgments except for errors that are prejudicial to the rights of the defendant;” and cited a number of cases.

The court further said in the last case mentioned:

“So it will be seen that, if Miss Williams had answered the question in the negative, this would have ended the matter. If she had answered it in the affirmative, the answer would have been allowed to go to the jury for what they considered it worth as affecting her credibility. She did not answer it at all, and a majority of the court are of opinion that this brings the case within the general rule that, where evidence is ruled out as being’ incompetent, there must be set out in the record what the answer of the witnesses would have been. Otherwise the court would not know whether or not there had been any prejudicial error committed.”

The witness in the case of Williams v. State, supra, as stated 'by the court, did not answer the question and the defendant did not state what the answer would have been. But, in the case at bar, the attorney for the defendant, after asking the question and the court stating that it was improper, stated, “We offer to show that.” Whether he meant by that that we offer to show what we have asked, or we offer to show by this witness that the facts suggested in the question are true, may not be very clear, but it certainly appears, from the question and answer and statements of counsel, that they expected to prove the facts suggested' in the question by this witness. And if this witness would testify to that, it would certainly affect her credibility.

As to the next question, the one with reference to drinking whiskey and 'being- intoxicated, or under, the influence of liquor, the court would not permit the attorneys to ask the question nor the witness to answer it, and the attorney for the defendant said: “We offer it as affecting her credibility. We offer to show by the witness that she attended a dance at Abb Hunter’s in the fall of 1925, and, in returning, she was overtaken by Sam Schooley and Hilton Keath, and that she and Dura rode home with these men. That at that time she and her sister were tinder the influence of liquor, and that she. drove the car into a telephone post.” Here the attorney says that he will show that by this witness. We think this is equivalent to saying that this witness will testify to that. That is the only way he could show it by this , witness.

The court said this would be a proper question to ask Dura, the prosecuting witness, but not this witness. In this the court was in error. The State contends, however, that, because Mr. Steele said, “At present we will not pursue it further, ” he is not entitled now to a reversal because of this error. What the attorney meant by not pursuing it further it is impossible to- tell, but that he did not intend to abandon this question nor any rights that he might have is clearly shown by the fact that he objected to the ruling of the court, and saved his exceptions. He very probably meant, by not pursuing it further, that he did not intend to ask this witness about any other of her conduct or acts. At any rate, it is perfectly - clear that he told the court that he could prove by this witness that she had been under the influence of liquor at the time mentioned, and, when the court did not permit him to ask the question nor the witness to answer it, proper exceptions were saved.

We think that it not only shows what the answer would have been, but the exclusion of this testimony was prejudicial. It was especially important in this case that the defendant be permitted to cross-examine this witness and bring -out or develop facts that would affect her credibility, because the State relies largely, if not solely, on her testimony as corroborating the testimony of the prosecutrix that a promise of marriage was made. The State was required to prove thé promise, the prosecutrix testified to the promise, and this witness corroborated her. It was therefore important that the defendant be permitted to impeach this witness by asking these questions on cross-examination.

The authorities supporting the views herein expressed with reference to impeaching the witness on cross-examination are cited in the briefs of counsel, and need not he reviewed here.

It is next contended that the court erred in.permitting the State to prove a conversation the father of the prosecutrix and the father of the defendant had. It was not proper to admit in evidence this conversation. In the first place, the father of the prosecuting witness stated that his daughters had told him that Herbert had promised to marry her. The defendant had no opportunity to say anything, because at this time his father made the statement referred to, and we do not think there was anything said that would require the defendant to reply. In fact, it seems he did not have any opportunity to reply.

It is next contended that the court erred in excluding the testimony of Eldridge Eoss. We think this testimony was properly excluded. It would have had no tendency to show whether the girl was chaste or not. It would not even have a tendency to show her conduct, and what was said does not indicate what her conduct was. It is what might have been said to any chaste, pure girl, under the circumstances, and her answers are what such a girl might have made. The court should have required the State to use Ed Webb, if it desired to use him at all, before the defendant was required to offer his evidence.

It is next contended by the appellant that the court erred in refusing to give instructions numbers one, four and five. Instruction number one tells the .jury, in effect, that, although Dura Stone was chaste at the time of the promise of marriage, hut thereafter, and before they were to be married, became unchaste, they should acquit the defendant. If she was chaste at the time of the promise of marriage, and the defendant committed the crime, nothing that she may have done thereafter would affect his guilt or innocence. He either committed the crime at that time or he did not, and, if he did, her conduct thereafter, while it might be offered in evidence as affecting her credibility, would not affect his guilt or innocence. The same may be said of the other instructions refused by the court.

We think the court properly instructed the jury, but, for the errors above mentioned, the case is reversed, and remanded for a new trial.


author: Hart, C. J.,

text:
    Nevius v. Reed.
    Opinion delivered April 9, 1928.
    1. Highways — laying out road — consent of landowner. — Where a road laid out by viewers was approved by the county court on petition, but notice was not given to the landowner as required by Crawford & Moses’ Dig., § 5234, the county court had no authority to approve the aetion of the viewers in laying out the road without the landowner’s consent.
    2. Highways — right to notice — waiver by landowner. — The fact that a landowner filed exceptions to the report of viewers who were laying out a road on his land was not a waiver of the right to notice, as required by Crawford & Mo’ses’ Dig., § 5234.
    Appeal from Baxter Circuit Court; John G. Ashley, Judge;
    reversed.
    STATEMENT BY THE COURT.
    On the 23d day of March, 1927, J. H. P. Reed and forty other persons filed in the office of the clerk of the county court of Baxter County a petition praying for the alteration of a part of a public road in said county. Roy Nevius and other persons filed a remonstrance to said petition on the 4th day of April, 1927.
    The record shows that on October 30, 1926, Roy Nevius and others filed in the county court of Baxter County a petition for an order to vacate a certain part of a public road and to open up and establish a new road in the place of that sought to be vacated. Notice of the application was given as required by the statute, and viewers were duly appointed. J. H. P. Reed and the other persons who signed the petition with him in the present case filed a remonstrance to the petition of Roy Nevius and others. The old road was vacated, and the new road established as prayed for in the petition of Boy Nevins. J. H. P. Beed appealed to the circuit court. On the 11th day of March, 1927, being a day of the March term of the circuit court, J. H. P. Beed dismissed his -appeal at his own cost.
    On March 23, 19'27, the present petition was filed in the county court, -and the record shows that the petitioners are seeking to vacate the identical part of the public road which was opened and laid out on the petition of Boy Nevius, and to establish in its stead that ; part of the old road that had been vacated on the petition of said Boy Névius. Notice was given by J. H. P. Beed by publication as required by § 5230 of Crawford & Moses’ Digest. Proof of publication of the notice was filed with it in the county court on April 5, 1927. On April 19, 1927, a day of the April term of the Baxter County Court, three viewers were appointed, and made their report, recommending the vacation of the old road and the establishment of the new one as prayed for in the petition of said J. H. P. Beed and others. No notice was given Boy Nevius, 'as required by § 5234 of Crawford & Moses’ Digest. The court approved the finding of the viewers, and it was ordered that the change in the road be made as petitioned for and -as recommended by the viewers.
    Boy Nevius had filed exceptions to. the report of the viewers, and moved to quash the assessment on the gTound that the court was without jurisdiction to proceed in the matter. One of the grounds Was that no notice had been given as required by § 5234 of Crawford & Moses’ Digest. Another ground is that the matter was res judicata, because the parties were concluded by the former order of the county court, when J. IT. P. Beed dismissed his appeal.
    The circuit court on appeal heard the case de novo on the record, as stated above, and affirmed the judgrment of the county court vacating the road and establishing the new road over the land of Boy Nevius,- as prayed by J. H. P. Beed and others. Boy Nevius filed a motion for a new trial, which was overruled by the circuit court. He has duly prosecuted an appeal to this court from the judgment of the circuit court.

      Dyer & Dyer, for appellant.
   Hart, C. J.,

(after stating’ the facts). The road laid out by the county court on the petition of J. H. P. Beed and other persons was opened and laid out on the land of Boy Nevius and others. Viewers were appointed, but no notice, as required by § 5234 of Crawford & Moses’ Digest, was given by the petitioners to Boy Nevius, through whose land said road was proposed to be laid out and established. This fact wás shown by the undisputed evidence in the record, and no attempt was made to prove that the notice required by the statute of the viewers’ meeting, was given or that Nevius waived the notice. Therefore the county court had no right to approve the action of the viewers in laying the road over the land of Boy Nevius without his consent, and the action of the county court in approving the report of the viewers was erroneous. The circuit court heard the case upon the same record as presented to the county court and affirmed the judgment of the county court. This constitutes reversible error.

The case is here on appeal, and is not like the cases of Lonoke County v. Lee, 98 Ark. 345, 135 S. W. 833, and Polk v. Road Imp. List. No. 2 of Lincoln County, 123 Ark. 334, 185 S. W. 453, where it was held that the fact that a landowner had no notice of the meeting of the viewers for the assessment of damages is an irregularity and does not affect the jurisdiction of the county court, and does not render such judgment void. In each of these oases the relief was denied the landowner because he had not appealed from the order of the county court, but had attempted to quash the order by certiorari on the ground that it was absolutely void. In each of these cases, however, the court recognized and upheld the rule laid down in Beck v. Biggers, 66 Ark. 292, 50 S. W. 514, to the effect that the notice required by § 5234 of Crawford & Moses ’ Digest is, essential, and that the failure to give it constitutes error calling for a reversal of the judgment of the county court establishing the road, where the statutory notice is not given.

Nevius did not have any notice of the meeting of the viewers, and took no part whatever in the proceedings to lay the road over his land. The exceptions filed by him to the report of the viewers did not constitute a waiver of the notice required by the statute. Beck v. Biggers, 66 Ark. 292, 50 S. W. 514.

The result of our views is that the judgment of the circuit court was erroneous because the notice required by § 5234 of Crawford & Moses’ Digest was not given, and the cause mil be remanded, with instructions to remand the case to the county court for further proceedings according to law and not inconsistent with this opinion.

It is so ordered.


author: Hart, C. J.

text:
    Southern Lumber Company v. Arkansas Lumber Company.
    Opinion delivered April 9, 1928.
    1. Adverse possession — payment of taxes on unimproved land.— Crawford & Moses’ Dig., § 6943, providing that unimproved and upinclosed land shall be deemed to be in possession of the person paying taxes thereon, if he have the color of title, and providing that one paying taxes for seven years can invoke the benefit of the act, is not in itself a statute of limitations, but only makes the payment of taxes under the conditions named in the act a constructive possession, and it is only by applying thereto the general statute of limitations that such possession can ripen into a title by limitation.
    2. Logs and logging — conveyance of growing trees. — A conveyance of growing trees is a conveyance of an interest in the land itself, since growing trees constitute a part of the realty.
    3. Taxation — growing trees. — Under Crawford & Moses’ Dig., § 9855, after conveyance of growing trees separating timber from the land so that the landowner and timber owner had separate estates, such growing trees became property subject to taxation apart from the land.
    4. Adverse possession. — payment of taxes. — Where a timber deed was executed to plaintiff in 1905,.and he paid taxes on the timber thereon under Crawford & Moses’ Dig., § 9855, and there- . after defendant purchased the lands at a tax sale and had a tax deed, and paid the taxes on the land for seven successive years, held that such .payments did not give defendant any right or title to the growing trees under § 6943, relating to the payment of taxes under color of title as possession.
    5. Logs and logging — title to growing trees. — Where a grantor acquired no title to timber on the lands by paying taxes on the lands as wild and unimproved lands under Crawford & Moses’ Dig., § 6943, one who acquired the grantor’s title had no better title than his grantor.
    6. Taxation — effect of payment of taxes. — The payment of taxes by one not in the chain of title inured to the benefit of the owner by extinguishing the State’s tax lien on the land.
    7. Adverse possession — continuous payment of taxes. — One who paid taxes on lands as wild and unimproved lands cannot claim to have acquired title under Crawford & Moses’ Dig., § 6943, by payment of taxes under color of title, where such .payment was not continuous for seven successive years.
    8. Adverse possession — payment of taxes. — Where the owner of land paid taxes for certain years, payment of taxes by him extinguished the lien of the Státe, and a subsequent payment of taxes by another could not give to the latter title to the land by continuous -payment of taxes under color of title for seven years, under Crawford & Moses’ Dig., § 6943.
    Appeal from Bradley Chancery Court; E. G. Hcrnin mock, Chancellor;
    reversed.
    STATEMENT OE THE COURT.
    Southern Lumber Company brought this suit in equity against Arkansas Lumber Company for an accounting for the value of certain timber belonging to the plaintiff which was wrongfully cut by the defendant and converted to its own use.
    Arkansas Lumber Company filed an ¡answer, in which it denied that the timber in question belonged to the plaintiff, and asserted title by virtue of a conveyance of the lands on which the timber was grown from the ’Bradley Lumber Company to it. A cross-complaint was also filed by the Arkansas Lumber Company, asking that the Bradley Lumber Company be made a party defendant to the suit, and that the Arkansas Lumber Company have judgment against the Bradley Lumber Company in the event of a recovery against it by the Southern Lumber Company.
    Bradley Lumber Company filed an answer, setting-up, among other things, that it and its grantors had obtained title to the timber in question by payment of taxes under color of title for the statutory period on the lands on which the timber was growing-, and which lands were wild and unimproved.
    The lands involved in the suit comprise 70 acres, and the parties have exhibited a map of the lands on which they are designated by certain colors, which, for convenience, will be used by us in the opinion. The timber deeds to the plaintiff are exhibited with its complaint. Two of these timber deeds were executed by D. V. Stanley and wife to the Southern Lumber Company on June 24, 1905, and were duly acknowledged and filed for record on August 3, 1905.
    We shall only set out the description of the lands on which the timber involved in this suit was located. The lands in the two timber deeds are described as being-in section 17, township 16 south, range 10 west, in Bradley County, Arkansas. Of these lands the west half of the southeast quarter of the northwest quarter of said section is colored on the map red. The south half of the southwest quarter of the northwest quarter of said section is also colored red. The west half of the northeast quarter of the southwest quarter of said section is also described in the timber deed, but the northwest quarter of the northeast quarter of the southwest quarter alone is involved in this suit, and is colored .blue on the map.
    On December 13,1924, C. C. Sharp and wife executed a timber deed to the Southern Lumber Company, which was duly acknowledged and filed for record on the same day. Among the lands described in this timber deed was tbe northwest quarter of the southwest quarter of said section 17. This description includes the northwest quarter of the northwest quarter of the southwest quarter of said section, which is colored yellow on the map. It also includes the northeast quarter of the northwest quarter of the southwest quarter of said section, which is colored black. It also includes the west half of the northeast quarter of the southwest quarter, colored blue on the map.
    The record shows that the Arkansas Lumber Company claimed title to the above described lands by conveyance from the Bradley Lumber Company. The Bradley Lumber Company claimed title to said land by payment of taxes under color of title for the statutory period. The remaining facts necessary to a decision of the issues raised by the pleadings will be stated and referred to under appropriate headings in the opinion.
    The chancellor found that the timber cut from the northwest quarter of the northeast quarter of the southwest quarter of section 17, being the lands colored blue on the map, belonged to the Southern Lumber Company, and that it was entitled to judgment against the Arkansas Lumber Company for the market value of 23,501 feet of pine timber which had been wrongfully cut from' this land by the Arkansas Lumber Company. The chancellor also found that the Arkansas Lumber Company was entitled to judgment against the Bradley Lumber Company on its warranty in a sum equal to the amount recovered against it by the Southern Lumber Company. The chancellor also found that the Arkansas Lumber Company was the legal owner of the timber standing on the south half of the southwest quarter of the northwest quarter lying south of Halfway Creek, and the west half of the southeast quarter- of the northwest quarter, being the lands colored red on the map, and the north half of the northwest quarter of the southwest quarter of said section, being the land colored yellow and black on the map, belonged to the Arkansas Lumber Company, and the Southern Lumber Company was not entitled to an accounting for the timber cut on these lands. A decree was entered of record in the chancery court in accordance with the findings of the chancellor, and all parties to the suit prayed and were granted an appeal to this court.

      Fred L. Purcell, for appellant.

      David A. Bradham, J. G. Williamson, Lamar Williamson and Adrian Williamson, for appellee.
   Hart, C. J.

Counsel for appellees seek to uphold the decision of the chancery court as to the lands colored red on the map under our statute making payment of taxes under color of title for seven years constructive adverse possession of wild and unimproved lands. The Legislature of 1899 passed the following act:

“Unimproved and uninclosed land shall be deemed and held to be in possession of the person who pays the taxes thereon if he have color of title thereto, but no person shall be entitled to invoke the benefit of this act unless he and those under whom he claims shall have paid such taxes for at least seven years in succession, and not less than three of such payments must be made subsequent to the passage of this act.” (Crawford & Moses’ Digest, § 6943).

This statute has been frequently construed by this court, and it has been held that, under the statute, limitations commence to run from the date of the first payment of taxes, and the statutory bar is complete at the end of seven years from that date, provided seven payments have been made in succession, and three of them subsequent to the passage of the act. Updegraff v. Marked Tree Lumber Co., 83 Ark. 154, 103 S. W. 606; Taylor v. Leonard, 94 Ark. 122, 126 S. W. 387; and Greer v. Vaughan, 96 Ark. 524, 132 S. W. 456.

The Bradley Lumber Company purchased these lands at tax sale land received a tax title thereto. It is conceded that the tax deed is void, hut it is claimed that it gave the Bradley Lumber Company color of title, and that it acquired title under the statute above set out by payment of taxes under color of title on the land for seven successive years, the same being wild and unimproved. This would be true if there was nothing else in the case.

The record, however, shows that the Southern Lumber Company purchased the timber on said land from D. Y. Stanley, who had the'paper title to the lands at . that time; and on June 24, 1905, D. V. Stanley and wife executed a timber- deed to the Southern Lumber Company to the pine timber on -said lands. The payment of taxes by the Bradley Lumber Company was made after the execution of the timber deed by D. Y. Stanley and wife to the Southern Lumber Company, and the record shows that the Southern Lumber Company had paid taxes on the timber embraced in its timber deed ever since the execution of said deed. This prevented the Bradley Lumber Company from acquiring title under the act of 1899 above set forth. This court has said that the statute in itself is not a statute of limitations. It only declares that the land shall be deemed to be in possession of the person paying taxes thereon under color of ' title. It only makes the payment of taxes under the conditions named in the act a constructive possession: and it is only by applying thereto the general statute of limitations that such possession, like actual possession, can ripen into title by limitation. Taylor v. Leonard, 94 Ark. 122, 126 S. W. 387.

In Greer v. Vaughan, 96 Atk. 524, 132 S. W. 456, it was said that a compliance with the provisions of this statute constitutes in such person paying said taxes upon such character of land mentioned therein a constructive possession which, like adverse possession, ripens into a perfect title and creates in such person a complete investiture of the title thereto.

The record shows that D. Y. Stanley was the owner of the record or paper title of the land colored red on the map, and, on June 24, 1905, executed a timber deed to the Southern Lumber Company to the pine timber growing on said land. The growing trees constituted a part of the realty, and their conveyance by Stanley to the Southern Lumber Company was a conveyance of an interest in the land itself. Graysonia-Nashville Lumber Company v. Saline Development Company, 118 Ark. 192, 176 S. W. 129, and cases cited; and Chicago Land & Timber Company v. Dorris, 139 Ark. 333, 213 S. W. 759.

It is well settled in this State that growing trees may be severed from the land itself, ¡and that the severance is* accomplished by a conveyance of the timber, or by a conveyance of the land with a reservation or exception as to the timber. The ownership of the growing trees, after severance, is to all intents and purposes the same as the ownership of land, and this ownership is attended with all the attributes peculiar thereto. In recognition of this rule, the Legislature of 1905 passed an act for theassessment of timber which has been sold separately and apart from the land on which it stands. Crawford & Moses’ Digest, § 9855. By the execution of the timber deed from Stanley to the Southern Lumber Company, two separate and distinct estates were created. There was no community of interest between the Southern Lumber Company, which became the owner of the timber, and D. V. Stanley, who remained the owner of the land. Each had a separate estate, and each was separately subject to taxation. After the severance from the land by the timber deed, the growing trees became property subject to taxation under art. 16, § 5, of our Constitution, and the Southern Lumber Company assessed them under § 9855 of Crawford & Moses’ Digest, and thereafter paid taxes on them. Thereafter the Bradley Lumber Company purchased the lands at a void tax sale and began paying taxes on them as wild and unimproved lands. It acquired title to the land itself by the payment of the taxes on it under color of title for seven consecutive years, under the principles of law announced in the cases above cited; but, there being no community of interest between the owner of the land and the owner of the growing trees, the payment of taxes on the land fon seven successive years did not give the person paying such taxes any right to or title in the growing trees. The reason is that the owner of the trees under the timber deed and the person paying taxes on the land itself under color of title were paying taxes on separate estates, because each was the subject of ownership and taxation.

By analogy, this principle has been applied in the case of minerals in place. This court, following the general rule, has held that a conveyance of oil or gas in place is a conveyance of an interest in land. Watts v. England, 168 Ark. 213, 269 S. W. 585. In a note to Í40 Am. St. Rep., at page 952, it is said that, after severance, the surface and minerals are held by separate and distinct titles in severalty, and each is a freehold estate of inheritance. Each may be conveyed by deed or pass by inheritance, and has all of the attributes and incidents peculiar to the ownership of land. Ames v. Ames, 160 Ill. 599, 43 N. E. 592; New Jersey Zinc Co. v. New Jersey Franklinite Co., 13 N. J. Eq. 322; West Point Iron Co. v. Reymert, 45 N. Y. 703; Gill v. Fletcher, 74 Ohio St. 295, 113 Am. St. Rep. 962, 78 N. E. 433; Lillibridge v. Lackawanna, etc. Co., 143 Pa. 293, 24 Am. St. Rep. 544, 22 Atl. 1035, 10 L. R. A. 627; Hutchinson v. Kline, 111 Pa. 564, 49 Atl. 312.

By analogy, the same rule would apply here, and we are of the opinion that the Bradley Lumber Company acquired no title to the timber on the lands colored red on the map by the payment of the taxes on the lands themselves as wild and unimproved lands after the execution of the timber deed by Stanley to the Southern Lumber Company; and of course the Arkansas Lumber Company acquired no better title than its grantor, Bradley Lumber Company.

This brings us to a consideration of the lands colored black and yellow on the map. The Southern Lumber Company acquired title to the growing pine trees on these lands by a timber deed from C. O. Sharp and wife on December 13, 1924. C. C. Sharp at that time had the record or paper title to these lands. These lands were wild and unimproved, and it is claimed that the Bradley Lumber Company had acquired title thereto by the payment of taxes on the lands under color of title for seven successive years before the timber was conveyed by ■Sharp to the Southern Lumber Company. We have examined the record, and do not think it bears out the contention of counsel for appellees. The record shows that the taxes for 1904 were paid by M. L. Gardner, Jr., who was not in the chain of title, and his payment inured to the benefit of the owner by extinguishing the State’s tax lien on the land. France v. Butcher, 165 Ark. 312, 264 S. W. 931. For the years 1905, 1906, 1907, 1908, 1909 and 1910 the record shows that the 'Bradley Lumber Company paid the taxes. In 1911, however, H. L. Sharp paid the taxes, and this prevented the payment by the Bradley Lumber Company for seven years in succession. The tax claimant can only invoke the statute where the payment has been continuous for seven successive years. After that time the taxes appeared to have been paid for the years 1912 to 1925, inclusive, by the owner of the land, and also by the Bradley Lumber Company. The owner of the land appears first as having paid the taxes, and the payment by him extinguished the tax lien of the State; and in no sense could it be said that the payment by the Bradley Lumber Company, after the taxes had been paid by the owner of the land, gave it title to the land 'by continuous payment of taxes under color of title for seven consecutive years, under the act of 1899 above set out, which is § 6943 of Crawford & Moses’ Digest. The Arkansas Lumber Company acquired title to these lands by warranty deed from the Bradley Lumber Company, and, so far as the Arkansas Lumber Company is concerned, it had no greater rights than those possessed by its grantor.

We now come to a consideration of the land colored bine on the map. The chancellor found the title to the timber on this land to be in the Southern Lumber Company. An examination of the record will show that these lands ' are wild and unimproved, and that the Bradley Lumber Company commenced paying taxes on them in 1905, but there was a break in the payment after three years. Thus it will be seen that the Bradley Lumber Company had not acquired title to this land by a continuous payment of taxes 'under color of title for ■seven consecutive years, under the provisions of § 6943 of the Digest. The Southern Lumber Company acquired title to this timber by a deed from C. C. Sharp on the 13th day of December, 1924. He and his grantors had the paper title to the lands, and the record does not show seven years’ continuous payment of taxes in succession by the Bradley Lumber Company, or by any one else, prior to the execution of the timber deed on December 13, 1924. Since the execution of that deed the Southern Lumber Company has paid the taxes on the timber under an ¡assessment- made under % 9855 of the Digest.

The result of our views is that the decree of the chancery court giving the Southern Lumber Company a judgment for the value of the timber cut by the Arkansas Lumber Company on the lands colored blue should be affirmed; and, in so far as the timber on the rest of the lands involved is concerned, the decree of the chancellor should have been in favor of the Southern' Lumber Company for all the pine timber cut by the Arkansas. Lumber Company and judgment should have been rendered in favor of the Arkansas Lumber Company against the Bradley Lumber Company on its warranty for the amount recovered by the Southern Lumber Company against the Arkansas Lumber Company. It follows that the decree must be reversed, and the cause will be remanded with directions to enter a decree in favor of the Southern Lumber Company against the Arkansas Lumber Company for the market value of all the growing pine timber cut by it on the lands described in the complaint, and that the Arkansas Lumber Company should have judgment over against the Bradley Lumber Company for the same amount, and for further proceedings in accordance with the principles of equity and not inconsistent with this opinion. It is so ordered.