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

text:
    Guaranty Bank & Trust Company v. Davis.
    Opinion delivered January 18, 1926.
    1. Banks and banking—ownership of draft.—Where a draft was drawn by a seller ■on the buyer in favor of a bank for the price of a shipment, the draft became the property of the bank when it credited the amount of the draft to the seller’s checking account, and the proceeds of the draft were not subject to garnishment by the buyer in an action against the seller while such proceeds were in the hands of another bank to which the payee bank had sent it for collection.

      2. Banks and banking—ownership of draft—evidence—Where the seller of goods drew a draft for the purchase money in favor of a hank, which credited him with the amount, and the buyer, after paying the draft, sought to garnish the proceeds of the draft in the hands of the bank’s agent, the fact that the seller subsequently endeavored to effect a settlement and stop the litigation did not tend to prove that the draft was accepted by the bank for collection merely.
    3. Banks and banking—ownership of draft—evidence.—'Where a draft drawn by a seller of goods on its face became the property of the ibank in whose favor it was drawn, affirmative proof that the bank accepted it as such, and not for collection merely, would not be overcome by proof of a custom of banks in the locality to accept such drafts for collection merely.
    Appeal from White Circuit Court; E. D. Robertson, Judge;
    reversed.

      W. D. Davenport, for appellant.

      Brundidge & Neelly, for appellee.
   McCulloch, C. J.

Appellee, who was plaintiff 'below, and who is a resident of White County, Arkansas, purchased a carload of corn from L. D. Jones, of Memphis, Tennessee. The-negotiations between the parties were by written correspondence, and the com was to be of a certain quality, or grade, at the stipulated price of $1.10 per bushel. Jones shipped the oar of corn to his own order at Pangbum, Arkansas, on a bill of lading directing notice to appellee, and drew a draft on appellee with the bill of lading attached, the draft being payable to appellant, a banking institution in Memphis. Appellant forwarded the draft, with bill of lading attached, to a bank at Pangburn for collection. Appellee paid the draft, took up the bill of lading and unloaded the corn, which was, according to the evidence, found to be of very low grade and practically worthless. While the funds were still in the hands of the local bank, appellee sued Jones for the amount paid and caused a garnishment to be issued and served on the local bank. Jones was summoned by publication of warning order, but made no defense. Appellant appeared and intervened, claiming the fund as owner, and, on the trial of the issue between appellee as plaintiff and appellant as intervener, there was a verdict in favor of appellee. Appellant asked for a peremptory instruction on the ground that, according to the undisputed testimony, it was the owner of the draft and the funds collected thereon, but the court refused to give the instruction, and, on the contrary, submitted to the jury the issue whether or not appellant was the owner of the draft or merely received it for collection.

We have carefully considered the evidence and reached the conclusion that the court erred in holding that there was any issue of fact to submit to the jury concerning the ownership of the funds in controversy. The facts of the case bring it squarely within the decision of this court in Cox Wholesale Grocery Co. v. National Bank of Pittsburg, 107 Ark. 601, and Merchants’ Bank of Kansas City v. Searcy Wholesale Grocer Co., 166 Ark. 153.

It will be noted that the draft was drawn by Jones in favor of appellant, and this constituted a transfer of the title to the proceeds of the draft when collected. In other words, the transaction on its face was a sale of the proceeds and not a delivery of the draft for collection, and in this respect the case is identical with Merchants’ Bank of Kansas City v. Searcy Wholesale Grocer Co., supra. The question therefore is whether or not there is 'any evidence in the case to show that the effect of the transaction was other than that expressed on the face of the draft itself. The burden of proof was on appellee to make such proof.

Appellant’s cashier, L. H. Hume, testified by deposition concerning the draft and its delivery to appellant by J ones in the course of business between appellant and J ones. He testified that the draft was delivered to appellant in regular course of business for discount and credit, and that this had been the regular course of business between appellant and Jones for many years, but that, in addition to this, Jones had a line of credit on his own account. The witness testified that this draft and others under like circumstances were credited to the checking account of Jones, and that the discount was twenty-five cents per $100, and that in case of a delay of more than ten days there was a charge of six per cent, interest for the period of delay. The witness testified that this method of doing business was classed in banking circles as a “commodity loan,” and.that appellant has quite a number of firms doing business on that basis. This testimony is not contradicted, and there is certainly nothing in it to overcome the regularity of the transaction, so far as the face of the draft is concerned, as a transfer of the funds. The witness testified that this draft and those like it were discounted by the bank, and this entirely negatives the idea that the draft was received merely for collection.

Counsel for appellant rely, as evidence that the draft was merely taken for collection, on the statements of the witness that such transactions constituted what is termed in banking circles a “commodity loan,” but those statements or concessions of the witness—if they may be so termed—have no tendency to show that this draft and others similar to it were taken as collection items and not on transfer and sale. They also rely upon the statement of the witness that Jones had a credit arrangement with the bank “covering the discount of his bill of lading items, and also an additional line of credit upon his own paper up to the amount of $5,000. ” This statement does not show that the draft was accepted merely for collection; on the contrary, it is in accord with the other statements of the same witness, who said that this draft was not taken for collection, but was discounted the same as if it was a note, and that Jones had “an additional line of credit upon his own paper” up to a certain amount.

There is testimony to the effect that, after this suit had been instituted, Jones called appellee over the telephone from Memphis, and that they had a conversation •in an effort on the part of Jones to effect a settlement and stop the litigation, and Mr. Hume in his testimony admitted that he had had some conversation with Jones about taking up the matter of settlement with appellee. Learned counsel for appellee insist that this testimony has some probative force as tending to show that the draft was not accepted by appellant as an outright purchase but merely for collection. These matters, as well as the statement of Hume that upon non-payment of the draft it would have been charged back, were all covered by our decision in Merchants’ Bank of Kansas City v. Searcy Wholesale Grocer Co., supra, and that case is in every respect decisive of the case against the contention of appellee. In that case we said:

“The fact that appellant referred the claim of appellee to the drawer of the draft to determine whether or not a credit should be allowed does not change the effect of the draft being drawn in favor of appellant and credited to the account of the defendant. Notwithstanding the fact that the draft became the absolute property of appellant as the party in whose favor it was drawn, yet the defendant was liable to appellant as drawer if the draft was not paid. Therefore the act of appellant in consulting the drawer or in carrying out the wishes of the drawer did not concede that the draft was not its absolute property.”

The case cited above was referred to and discussed in the later case of Live Stock State Bank v. Forrest City Grocer Co., 166 Ark. 474, and there was a distinction found in the case then under consideration, in the fact that the draft in the last case was not drawn in favor of the appellant, hence the transaction was not, on its face, a transfer of the title to the funds.

Counsel for appellee rely upon our decision in Collins County Natl. Bank v. Laser Grain Co., 130 Ark. 396, but there is a clear distinction between that case and this, in that the draft involved there showed on its face that it was delivered for collection, and there was other proof adduced in the case which tended to show that it was actually received by the appellant for collection and not by purchase.

The judgment of the circuit court is therefore reversed, and the cause remanded for a new trial..

McCulloch, C. J.,

(on rehearing). In the judgment of this court the cause was remanded for a new trial, instead of rendering judgment here on the undisputed evidence in favor of appellant. This course was pursued on the theory that appellee might be able to produce additional evidence tending to show that the draft was received by appellant from its customer merely for collection and not as the absolute owner. Appellant now moves for modification, so as to obtain judgment here for recovery of the amount of the draft. Appellee responds to the motion and states that he can, on a retrial of the issues, adduce testimony to the effect that a general custom existed in the city of Memphis among the banking institutions that drafts of this character were taken for collection. No other proof is offered. We do not think that is sufficient to help appellee’s defense, for the prevalence of such a custom could not affect this particular transaction, where the draft on its face became the property of the drawee, and the proof shows affirmatively that appellant received it as such. Southern Coal Co. v. Searcy Transfer Co., 152 Ark. 471.

No useful purpose will be served by remanding the cause for a new trial, for, if it comes back here on appeal from judgment in appellee’s favor with no other testimony except that now in the record and the additional testimony offered, we would reverse the judgment as being unsupported by legally sufficient evidence, so the motion of appellant is sustained, and final judgment will be rendered here in appellant’s favor for recovery of the funds in dispute.


source: Caselaw Access Project

author: Wood, J.

license: Public Domain

text:
    W. H. Moore Lumber Company v. Starrett.
    Opinion delivered January 18, 1926.
    1. Master and servant—independent contractor defined.—An independent contractor is one who, in the course of an independent occupation, prosecutes and directs the work, using his own methods to accomplish it, and represents the will of the company, only as to the result of his work.
    2. Master and servant—independent contractor—evidence.—In •an action against an employer for alleged negligence of an employee, evidence held to establish that the alleged employee was an independent contractor.
    Appeal from Hot Spring Circuit Court; Thomas E. Toler, Judge;
    reversed.

      Murphy <& Wood, for appellant.

      D. D. Glover and H. B. Means, for appellee.
   Wood, J.

On the 24th of January, 1924, Sam Starrett filed his complaint in. the Hot Spring Circuit Court, in Which the W. H. Moore Lumber Company (hereafter called company) and one W. M. Fleetwood were named as defendants. Starrett alleged in substance that the company was a corporation engaged in the manufacture of lumber, one of its mills being situated in Hot Spring County, and that Fleetwood was in charge of its sawmill department and running the same for the company in cutting timber at. a stipulated price per thousand, feet; that on the 22d day of July, 1922, the plaintiff was in the employ of the defendants, and, under the orders and directions of his foreman,- was operating an edger; that the edger and machinery being run by the defendant was unsafe and dangerous in that it would permit the lumber, while being operated through it, to kick back in the direction of the one operating the same; that the key that held the edger saw upon the shaft was defective and unsafe, and would permit the saw, while it was in operation, to move from side to side and come in contact with the lumber, and because of such defect the lumber would be thrown back from the side from which it was being fed into the edger; that, while the plaintiff was in the discharge of his duty, one of the defendants ’ other employees negligently and carelessly, in handling a plank coming through the edger, caused the plank to come in contact with the saw which caused the piece of lumber to be kicked back through the rollers, striking the plaintiff in the right side and hip, and knocking him into a hole which had been negligently and carelessly left open by the defendants without a railing around, the same; that, by reason of the failure of the defendants to exercise ordinary care to provide him with a safe place to work and safe machinery with which to do his work, iand the negligence of his fellow-servant in handling the plank, he was severely injured, to his damage in the sum of $5,000, for which he prayed judgment.

The company answered and, ¡among other things, denied that it was engaged in the operation of a sawmill at the time of the ¡alleged injury to the plaintiff, or engaged in the manufacture of lumber or other products as alleged in the complaint; the company denied that it had any control or management of said sawmill at that time, but set up that the mill at the time of the alleged injury to the plaintiff was being operated by one W. M. Fleetwood, who. was in full charge thereof, and running it on his own account under lease from the company. The answer denied specifically all allegations of negligence, and also the allegations as to appellant’s injury set forth in the complaint, and set up the affirmative defenses of contributory negligence and assumed risk.

Fleetwood, in his ¡separate answer, admitted that he was in charge of the sawmill department of the mill and running ¡the siame for the company in cutting its timber into lumber for a stipulated price per thousand feet. He denied that the plaintiff was in his employ on July 22, 1922, and denied all the ¡allegations of the complaint as to negligence and injury to the plaintiff, and set up the affirmative defenses of contributory negligence and assumed risk.

The evidence was heard on the issues raised by the pleadings, and the court submitted these issues under the evidence upon written and'oral instructions. In its oral instructions it told the jury that it was for the jury to determine whether the defendants were both liable or whether only one of them was liable, and which one, and, if the jury found that both were not liable, but that one was liable, they should return their verdict accordingly; and that if they found that the defendants were neither' liable individually or jointly, they should return a verdict in favor of the defendants. The jury returned the following verdict: “We, the jury, find for the plaintiff solely against the defendant, W. H. Moore Lumber Company, in the sum of $1,250 and costs.” Judgment was entered against the company in that sum, from which it prosecutes this appeal.

The conclusion we have reached after an examination of the entire record in the ciase makes it unnecessary to set forth the testimony and instructions of the court bearing upon the issues of negligence, contributory negligence and assumed risk.

On the 1st of September, 1921, the W. H. Moore Lumber Company entered into a written contract with W. M. Fleetwood. The contract provided in substance that the company was the owner of Í600 acres of timber lands in Hot Spring County, Arkansas, and ¡also, was the owner of a sawmill in that county; that it was the intention of the parties to enter into a contract whereby Fleetwood would take over the operation of the mill for the logging and manufacture of timber into lumber. It was agreed that the company would furnish Fleetwood the mill and all its appurtenances for the purpose mentioned, and that Fleetwood would take possession and operate -the same for that purpose. The timber was to be manufactured into merchantable lumber by Fleetwood, which was to be handled by him in a certain manner as specified in the contract, and when so handled it was to be received by the company on the mill yard. • For the purpose of securing logs to be manufactured into lumber, Fleetwood was to cut the merchantable timber on the lands belonging to the company and all other merchantable timber which the company might acquire in that locality, and he was to cut the trees and saw the logs and preserve the same according to certain specifications set forth in the contract. In consideration of Fleet-wood’s performing the contract on his part, the company agreed to pay him on a basis of $10 per thousand feet, log scale, for all the lumber he manufactured. The logs were to be scaled by a person to be mutually agreed upon by the parties according to the Doyle scale stick. Fleetwood agreed, in consideration of the payments thus to be made him by the company, that he would “pay all costs of labor, and maintenance and repairs on the mill, and all other expenses entering into the logging and manufacture of said timber into lumber” and to save the company “harmless as against all claims for labor, maintenance or otherwise, entering into the manufacture of said lumber.” Fleetwood agreed that he would endeavor to manufacture the lumber in consistent average amounts not less than 100,000 feet per month, and not more than 200,000 feet, unless larger amounts were requested by the company, and, if so, then he would endeavor to supply the amounts 'desired. Fleetwood also agreed to purchase of the company certain teams, wagons and harness that were then being used at the.mill, for which he agreed to pay the sum of $2,000, by permitting the company to deduct the sum of $1 per each thousand feet of log scale at each settlement period until the purchase price of $2,000 was paid.

The company retained a lien on the teams, wagons and harness until the purchase price was paid. Fleet-wood had the privilege at any time to pay any balance of the purchase money in cash, and thereupon to obtain an absolute ownership of the teams, wagons and harness, and, uutil the purchase money was fully paid, Fleetwood agreed that he would not dispose of this property or remove the same from Hot -Spring County without the consent of the company. It was agreed that the compensation specified in the contract to -be paid Fleetwood by the company was based upon the then prevailing prices of labor in the locality of the mill and timber, and if at any time prior to the fulfillment of the contract there should be a material change in the price of labor an adjustment of the compensation to be paid Fleetwood by the company -should then be agreed upon in accordance with the change, and if the parties could not agree, the matter should be submitted to arbitration, and the decision of the arbitrators should be binding upon both parties.

It was further agreed that if the mill should be destroyed or badly damaged by fire or tornado during th-e life of the contract, so that it could not be used, then the company should have the option to rebuild or repair or declare the contract ended. If the company exercised the option to rebuild -or repair, then such option would have to be exercised in a reasonably prompt manner. By its terms the contract went into operation on the 1st day of September, 1921.

Both Fleetwood and Moore testified that at the time of the injury to the -appellee the mill was being operated in the manufacture of timber into lumber by Fleetwood under a contract; that the appellant had nothing whatever to do with the operation -of the mill at that time. According to Fleetwood’s testimony, after the appellee was injured witness took him to St. Joseph’s Hospital, in Hot Springs, and paid the doctor’s bill for his treatment, as was his custom for his employees. There was one planing mill in connection with the plant, but the witness didn’t have any control over that. It was in charge of Moore. The two mills were connected by a tramway. Under the contract witness was t.o receive $10 per thousand feet for the timber cut into lumber, log scale, and witness paid the expenses of operating the sawmill out of that. Moore gave instructions to witness about how the lumber should be cut, land witness obeyed Moore’s orders in this respect. Witness was running a commissary at -the plant, and the goods were shipped in the name of W. H. Moore Lumber Company, and Moore paid the bills for awhile and then quit, and after that witness paid the bills. The men were all supplied out of the commissary, and the amount of their • accounts was taken out of their wages, and witness had for his services what wias left of the $10 per thousand after the expenses were paid. Moore selected the men who were to scale the logs. It was reserved in the contract -that he was to be consulted about that, and they' agreed on the men selected by Moore. 'Some of the new parts of the machinery that were added to the sawmill after the contract was entered into Moore paid for, and part of them witness paid for. Moore obtained a couple of new .saws, put in a heater, and did some repair work on the dry kiln. He also, after lan arrangement between (him and witness, paid for fitting up a lath mill. Witness further testified that, after Moore wias sued and had filed his answer alleging that the witness was an independent contractor, he had a conversation in which he told witness that if he (witness) would stay out of Hot Spring County they could not obtain any service on him. Service had been obtained on witness in Hot Springs, Garland County, which' service witness understood was all settled, and in speaking of this Moore told witness that that service was not legal, and then told witness that, inasmuch as he was an individual, they could not get legal service on him if he would stay out of Hot Spring County.' Witness employed the appellee to work for him at the sawmill and paid him for his labor. Moore did not tell witness whom to hire or whom to discharge, and none of the employees, were under Moore’s control or direction. Witness paid for the labor, and Moore paid witness. Witness paid for the labor whether he made money enough to do it or not. Witness always got money enough from Moore to pay them. Moore furnished witness the money and charged the same to witness and credited witness with the timber when same was produced.

According to the testimony of Moore, he had no control whatever of the sawmill at the time the appellee was injured. The lumber was to be manufactured in the manner witness desired, and the only say-so witness had was as to how the lumber was to be cut and what size. "Witness did not employ any of the laborers for the appellee nor give them iany directions. Witness bad control of the planing mill, which was three or four hundred yards from the sawmill. The planing mill was run by different machinery entirely, and Fleetwood’s contract was terminated When he ran the lumber through the kiln and out on the dry shed side. The common lumber was to be stacked in the yards, and when that was done Fleet-wood’s contract with witness was completed. The planing mill then took charge of it and handled it. Witness never had the appellee in his employ and didn’t even know him. Witness stated in regard to the commissary that Fleetwood came to Hot Springs when he thought of putting in the commissary, and he was a stranger in that part of the country and had no established credit. Witness arranged with the Plunkett-Jarrell people for Fleetwood to get goods there, and the amount to be paid out of what was coming to him on his contract once a month. Witness didn’t know whether the groceries Fleetwood bought were charged to witness or to Fleet-wood. Witness simply loaned Fleetwood his credit to use in his commissary, iand Fleetwood paid the bills and made whatever profit there was out of it. Witness had nothing whatever to do with runningthe sawmill except to give instructions as to the character of lumber and the amount of the lumber witness wanted cut while Fleet-wood was running the mill. Witness was now operating the planing mill and had a foreman who employed the labor for witness, and this foreman fired the laborers when he got ready to do so. This foreman, every two weeks, makes out a payroll and sends it to the office, and checks are made out directly to the individual laborer for his time. But in the case of Fleetwood a check was made direct to Fleetwood for whatever credit he had for the lumber manufactured. When witness .was operating the plant himself, he told his foreman at what rates to hire the men, and when he was around, his foreman consulted him about these matters, and if witness was not there his foreman hired and fired the men whenever he chose to do so. In regard to the commissary, witness had an open account with Fleetwood. Witness credited him with the log scale and charged him with whatever amounts he drew. One time, while Fleetwood was operating the mill, he complained to witness that he wias needing some saws. Witness realized that Fleetwood couldn’t make good lumber without good saws, and he agreed to buy a couple of saws and make Fleetwood a present of them. Witness was under no obligation to buy them. Witness did not procure a driveTbelt for the machinery. It was to the interest of witness to increase ■ the capacity of the mill, and witness, to that end, bought a heater to increase the steam power so that they could get enough steam to dry the lumber. Fleetwood had the brick walls torn down around the boiler, and hauled brick from Malvern and relined them. He spent a thousand dollars in fixing up the mill to start with. The mill was operated by Fleetwood under the contract, and the timber'cut by him belonged to witness. As to wagons and teams sold Fleetwood under the contract when Fleet-wood left, under lan agreement between them witness took the same back and sold them. As to the log scaler, Fleet-wood first had a man there whom he employed, and witness also afterwards had a man there. It was agreed between them that ia man should be selected that was mutually agreeable to them. That was the understanding. Witness didn’t remember making any suggestion to Fleetwood about staying out of Hot Spring County to avoid service of summons on him. Witness might have told him that if he would stay out of Hot Spring County they could not get service on him. Witness didn’t consider that witness was responsible in any way for the injury to appellee. When witness himself was operating the mill by day work, he paid the men by the thousand to cut the timber. Under the contract with Fleet-wood witness had nothing to do with the cutting of the timber into lumber, but paid Fleetwood by the thousand for manufacturing the same.

The appellee Starrett testified that at the time he received his injury he was employed at the W. H. Moore Lumber Company putting the lumber through the edger. They told witness it was the W. H. Moore Lumber Company’s mill. Witness got the job from Fleetwood. Witness thought that Mloore was one of Fleetwood’s bosses. Witness was asked the following: “Q.. What did Mr. Moore seem tobe doing about there? A. Well,hewould.just come through the mill generally when he would come down, walk through and see how everything was going on, and whether everything looked to suit him or not, 1 reckon. I don’t know what his ideas were, but if he saw anything he didn’t like he would tell them about it, and he would call Mr. Fleetwood off or make remarks about how things should go on or how it would be best for it to go on, or something like that; I don’t know for sure just what he would tell them. * * * It showed that he had things to do with it or showed that Fleetwood was working under him, the same as I was under Fleetwood, by all appearances, and any one, when Mr. Moore would come around, it would be just like you were working for a head man, when the head man came .around you would go to talk to him, you might be a straw boss under the head man. That was the way Mr. Fleetwood acted, like the straw boss. Mr. Mloore would come around and they would have to have a conversation, and they would walk through the mill sometimes.” The witness stated that he didn’t think that Mr. Fleetwood, during the time he was there, had any direction over the planing mill department. Witness further stated that Moore would come through there sometimes and give orders if he saw anything that he didn’t like. He would talk to Ted Snow. If the trimmer saw didn’t cut the material right, he would say something about it ought not to do that, or that wasn’t the way it ought to be done. He would tell Ted Snow how to do it, and jack him up if the trimmer saw didn’t run right.

The above is the material testimony bearing upon the issue as to whether or not Fleetwood was an independent contractor in the operation of the sawmill at the time the appellee received his injury. It will be observed that the contract expressly states that it was the intention of the parties in making the contract that the company should turn over the mill and timber to Fleetwood for the purpose of manufacturing the timber into merchantable lumber. The timber was to be cut and manufactured into lumber and be handled in a certain manner set forth in -the contract. The company was to furnish the mill and timber and pay Fleetwood, as a certain compensation named therein, an amount for the manufacture of the timber into lumber. Fleetwood on his part was to take possession of the timber and mill and manufacture the timber into lumber according to the specifications of the contract. The contract specified las follows: “In consideration of the payments as herein stated, the party of the second part agrees to pay all costs of labor, maintenance and repairs on the mill and all other expenses entering into the logging and manufacture of said timber into lumber and to save the party of the firstpart harmless as against all claims for labor, maintenance or otherwise entering into the manufacture of said lumber as herein provided. ”

In J. W. Wheeler & Co. v. Fitzpatrick, 135 Ark. 124, we defined an independent contractor in the language of Judge Elliot as follows: “An independent contractor may be defined'as one who, in the course of an independent occupation, prosecutes and directs the work himself, using his own methods to accomplish it, and represents the will of the company only as to the result of his work.” 2 Elliot on Railroads, p. 863, § 1063. And further, the definition as contained in 2 Words & Phrases, p. 1034: “An independent contractor is one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to the control of his employer, except as to the result of the work. ’ ’

Now, under the above definition, according to the plain provisions of the written contract, the relation as between the company and Fleetwood at the time of the injury to the appellee was that of independent contractor rather than that of master and servant. It occurs to us that the testimony aliunde is not sufficient in legal effect to overcome the express provisions of the contract. Nor does this testimony justify the inference to be drawn by the jury that the relation between the company and Fleetwood at the time of the appellee’s injury was that of master and servant or employer and employee, rather than that of owner and lessor on the. part of the company and lessee and independent contractor on the part of Fleetwood. Therefore it is the duty of the trial court under all the evidence adduced as a matter of law to so construe the contract.

It could serve no useful purpose to discuss the testimony aliunde. We have set it forth, and it speaks for itself. . Learned counsel for the appellee contends that, because there is testimony tending to show that the company, after the contract was executed, and. while Fleet-wood was operating thereunder, bought new saws and built other parts to the sawmill and added a. lath mill, this would warrant an inference that the company was operating the sawmill, but this is not so, for the reason that, under the terms of the contract itself and the uncontradicted testimony of Moore, the company was interested in the output of the mill and in the result of the operation by Fleetwood, and if it desired to make the result of the operation more effective by increasing the output of Fleetwood’s contract by adding new parts and machinery in addition to the machinery already furnished and the compensation it was paying Fleetwood, this was not inconsistent with the relation that it sustained to Fleetwood as owner land lessor, and only tended to prove that the company was interested in the result of the contract and was endeavoring to make the same more profitable to them both.

The same may also be said in regard to the testimony as to the commissary and the sale of the wagons and teams to Fleetwood. Likewise the same may be said with reference to the testimony of the appellee to the effect that when Moore would come around the sawmill he would have conversations with Fleetwood, and that his conduct was such as to impress the appellee that Fleetwood was a straw boss under the head man, Moore. Of course, the opinion of the appellee as to the relation of Mjoore to Fleetwood was not competent testimony, and the appellee’s testimony to the effect that Moore, when.he passed through the mill, would give orders if he saw anything that he didn’t like, and would say to the trimmer that he ought not to do that, -or that was not the way it ought to be done, and would tell him how to do it, and jack him up if he didn’t run the trimmer saw right, did not tend to prove that Fleetwood was not in control of the sawmill. ,A11 this was perfectly consistent with the company’s relation to Fleetwood as owner or lessor, and would only tend to prove that the company was generally interested in the result and output of its contract with Fleetwood, and endeavoring to make such contract more effective and profitable to both of them. In the absence of any proof tending to show that the written contract was a mere camouflage to cover up the real relation between the- company and Fleetwood, and that such relation was in fact merely that of émployer and employee, or master and servant, the court should not have ignored the plain and unambiguous terms of the written contract, and should have declared as a matter of law that the relation of master and servant did not exist between the company and Fleetwood, as requested by the appellant in its prayer for instruction No. 1. The court erred in not granting this prayer.

In St. L. I. M. & S. Ry. Co. v. Gillahan, 77 Ark. 551, we quoted from Judge Elliott as follows: “An independent contractor may be defined as one who, in the course of an independent occupation, prosecutes and directs the work himself, using his own methods to accomplish it, and representing the will of the company only as to the result of his work. Generally, where an independent contractor is employed to perform a work lawful in itself and not intrinsically dangerous, the company, if it is not negligent in selecting the contractor, is not liable for the wrongful acts or negligence of such contractor; and, in order that the company shall be liable in such a case, it must appear that it either exercised or reserved the right to exercise control over the work, or had the power to choose, direct and discharge the employees of the contractor. In general, it may be said that the liability of the company depends upon whether or not it has retained control and direction of the work. But neither the reservation of the power to terminate the contract, when in the discretion of the engineer the work is not progressing satisfactorily, the right to exercise general supervision and inspect the work as it progresses, nor the right to enforce forfeitures, will change the relation so as to render the company liable.” 3 Elliott on Railroads, § 1063, p. 1586.

The doctrine announced in the above ease land in the case of Arkansas Natural Gas Co. v. Miller, 105 Ark. 477, and Arkansas Land & Lumber Co. v. Secrist, 118 Ark. 561, when applied to the facts of this record, show conclusively that Fleetwood was an independent contractor and that he aloné, if any one, was liable for the injury to the appellee. See also Hardy v. Hardy, 144 Ark. 375, and Harkins v. National Handle Co., 159 Ark, 15. The case, to be sure, must depend upon its own pequliar facts, but the above cases are more nearly applicable to the facts of this record than the case of Wheeler & Co. v. Fitzpatrick, supra, upon which counsel for appellee rely. In the latter case there are many features in the testimony which clearly distinguish it from the case at 'bar.

It follows -that, for the error indicated, the judgment must 'be reversed, and, inasmuch as the testimony seems to have been fully developed, the cause will be dismissed.


author: Hart, J.

text:
    McCorkle v. State.
    Opinion delivered January 18, 1926.
    False pretenses—sufficiency of evidence.—The mere fact that defendant sold cotton which was subject to a mortgage, without disclosing that fact, will not constitute the offense of obtaining money under false pretenses, where he made no representation concerning the fact whether there was a lien on the property or not.
    Appeal from Hempstead Circuit Court; James H. McCollum, Judge;
    reversed.

      J. O. A. Bush, for appellant.

      H. W. Applegate, Attorney General, and Darden Moose, Assistant, for appellee.
   Hart, J.

Harvey McCorkle prosecutes this appeal to reverse a judgment of conviction against him for the crime of obtaining money by false pretenses.

The indictment charges in substance that the defendant, Harvey McCorkle, falsely represented to T. J. Garner that he was the owner of a certain bale of cotton, and that said bale of cotton had no lien against it, and thereby induced Garner to pay him $100 for said cotton.

Dr. T. J. Garner was the principal witness for the State. According to his testimony, in the fall of 1920 he bought six bales of cotton from Harvey McCorkle and paid him $700 for them. The defendant sold the six bales of cotton to the witness in Hempstead County, Ark., as Ms cotton, and the witness knew nothing about a mortgage being on the cotton. The six bales of cotton were not sold at one time, but pretty close together along in the fall. The witness paid the defendant $100 for one of the bales of cotton. The defendant made no representations whatever about the cotton. There wasn’t anything said, oMy the defendant just sold the cotton as his cotton, and the witness paid Mm for it.

Ralph Routen testified that his firm had a mortgage on the cotton which was sold by the defendant to Dr. T. J. Gamer, and did not give the defendant authority to sell the cotton. The defendant did not pay the mortgage indebtedness. The cotton in question was raised by the defendant and his share-croppers on rented land.

According to the testimony of the defendant, some of his share-croppers quit him, and he sold the cotton for the purpose of hiring cotton pickers to gather the balatíce of his cotton crop.

The principles of law which we think are applicable to the facts of this case are laid down in Maxey v. State, 85 Ark. 499. In that case 'the indictment charged the defendant with the crime of obtaining money by false pretenses by falsely pretending that he had a designated sum of money on deposit in a certain bank. The proof was that the defendant presented a check to another bank and received credit for the amount thereof when he had no funds in the bank on which the check was drawn and no reasonable grounds to believe that the check would be paid by the drawee. The court said that the mere presentation of the check was not a pretense that there was money in the bank upon which it was drawn, and that the evidence was insufficient to support a verdict of guilty.

In the case at bar, it is not claimed that the defendant made any affirmative representation that there was no mortgage or lien on the cotton, but the prosecution is upon the theory that the defendant, by selling the cotton as his own, was guilty of obtaining money under false pretenses. It may ¡be inferred that the defendant suppressed the fact that he had given a mortgage on the cotton, but, even if he did so, this would not'constitute the offense of obtaining money by false pretenses.

As said in People v. Baker, 96 N. Y. 340, it must be borne in mind that mere silence and mere suppression of the truth, the mere withholding of knowledge upon which another may act, is not sufficient to constitute the crime o,f false pretenses. To the same effect see People v. Fitzgerald (Colo.) 117 Pac. 134, and Moulden v. State, 5 Lea (Tenn.) 577.

The defendant made no representation concerning the fact of whether there was a mortgage or other lien on the property, and, under the authorities cited above, the mere withholding of knowledge in that respect, is not sufficient to constitute a false pretense. There must be an affirmative false representation in the premises.

It follows that the judgment must be reversed, and, inasmuch as the case has been fully developed, the prosecution will be dismissed for the reason that the evidence is not legally sufficient to support a verdict of guilty.


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

text:
    Horton v. Gillespie.
    Opinion delivered January 11, 1926.
    1. Pardons—construction.—Pardons are to be liberally construed in favor of the pardónee, there .being a presumption in favor of their validity.
    2. Pardons—validity—mode op raising question.—The question as to the validity of a pardon may be raised in a proceeding by habeas corpus where the pardonee asserts his immunity from the consequences of the judgment from which the pardon attempts to absolve him.
    3. Pardons—act regulating applications.—'Acts 1903, p. 270, (Crawford & Moses’ Dig., §§ 3370-3374) regulating applications for pardons, is a reasonable exercise of legislative powers under art. 6, § 18, of the Constitution, and does not substantially deprive the Governor of his power to grant- pardons. .

      4. Pardon—grant by acting governor—amendment.—Where a pardon granted by the President of the Senate, as acting Governor in the absence of the Governor from the State, failed to state that it was issued without application being made by any attorney or paid representative, as required by Crawford & Moses’ Dig., § 3374, the acting Governor had no authority to amend the pardon by inserting such recital after his authority to act as Governor had ceased.
    5. Pardons—publication oe applications.—The requirement in Crawford & Moses’ Dig., § 3370, that a certificate of publication of an application for pardon be filed in the Governor’s office before it can be considered is mandatory, and a pardon issued without complying therewith is invalid.
    6. Pardons—publication of pardon—authority of courts.—The courts may inquire whether the requirement in Crawford & Moses’ Digest § 3370, that a certificate of publication of an application for pardon be filed in the Governor’s office before the application can be considered, was complied with.
    7. Statutes—passage—failure of executive to return bill.— Where a bill was passed by both houses of the Legislature, and an enrolled copy was presented to the Governor, and the original bill contains the indorsement of the Governor’s failure to return the bill within five days, required by Crawford & Moses’ Dig., § 4971, except that it lacks the signature of the Secretary of state, but the enrolled copy contains both the indorsement of such failure and the Secretary’s signature, held that the bill became a law.
    Appeal from Pulaski 'Chancery Court; John E. Martineau, Chancellor;
    reversed.

      H. W. Applegate, Attorney General, and Brooks Hays, Assistant, for appellant; Tom W. Campbell, Will G. Akers and Frank Btrangways, of counsel.

      Rogers & Robinson, for appellee.

      R. W. Robins and J. T. Biford, J. E. Gaughan, Elbert Godwin and T. J. Gaughan, amici curiae.

   Smith, J.

On October 29, 1925, appellee was confined in the 'State Penitentiary, serving a sentence which had hot then expired. On that date, the Governor of the State being absent therefrom, the functions of Governor were being discharged by the President of the Senate as acting Governor, and, while so acting, he granted appellee a “full and free pardon.” After reciting appellee’s conviction, and the time of his sentence, it was recited in the pardon that, “by virtue of the authority vested in me by the Constitution of the State of Arkansas I do hereby grant to the said 'W. W. Gillespie a full and free pardon, of, for and from the said offense of grand. larceny of which he was convicted as above set forth, fully pardoning and absolving him of and from the said judgment and all the effects and consequences thereof.” This pardon was duly filed in the office of the Secretary of State, and was recorded there in the record which that officer is required to keep.

Upon the return of the Governor of the 'State to the State he ordered the recapture of appellee, who, pursuant to the pardon, had been released from the 'Custody of the penitentiary authorities, and, upon appellee being retaken by the penitentiary authorities, he brought habeas corpus to obtain his release. The chancery court held the pardon was valid, and directed that appellee be discharged from custody, and from' this decree the warden of the penitentiary, the officer having appellee iii 'Custody, 'has appealed.

It was shown by appellee at the hearing from which this appeal comes that, on the day before the hearing, and while the Governor of the State wfas within the State and discharging the functions of his office, a notation was made on the pardon by the President of the Senate reading as follows : “I, S. B. (Pete) McCall, héróby state that this pardon to W. W. Gillespie was granted by me without application being made to me by an attorney or paid representative of W. W. Gillespie.” This notation did not appear on the pardon when it was granted by the acting Governor, and does not appear in the pardon as recorded in the office of the Secretary of State.

The question presented for decisión is, of course, the validity of the pardon.

It may be first said that pardons are to be liberally construed in flavor of the pardonee, and that there is a presumption in favor of their validity. • There is some conflict in the authorities as to the extent to which this presumption is to be indulged and as to the character of the proceedings in which the question of its validity can be raised, but we think this question can be raised, in a proceeding by habeas corpus where the pardonee asserts his immunity from the consequences of the judgment from which the pardon attempts to absolve (him. It may be said, in this connection, that much of the apparent conflict in the authorities arises out of the language of the provisions of the Constitutions of the different States on the subject of pardons.

It appears that in the Constitution of the United States and in the Constitutions of all of the States provision is made whereby this right mlay be exercised. These provisions vary widely, and the value of any particular decision depends on the similarity of the Constitutions construed to our own.

The most elaborate opinion on the subject to which our attention has been called is that of Jamison v. Flanner, 116 Kan. 624, 228 Pac. 82, 35 A. L. R. 973. The opinion in this case by the Supreme Court of Kansas. evi-* dences the most exhaustive examination of the subject of the pardoning power, and in the opinion it was stated that this was done because of “the loose notion which sometimes prevails that the pardoning power is an executive power, to be, exercised by the Governor in his discretion, and that no other official or department • of the. government can interfere with it,.’ ’ but the review of the cases there made, both State and Federal, shows incontrovertibly that, as was there said, this “is so only when made so by the C'onstitution. ”

The provision of our own Constitution on the subject, which is similar to that of the State of Kansas, is found in § 18 of article 6, and reads as follows: “In all criminal and penal cases,' except, in those of trelason and impeachment, the Governor shall have power to grant reprieves, commutations of sentences and pardons after convictions, and to remit fines and forfeitures, under such rulés and regulations as shall be prescribed by law. ’ ’

The remainder of this section of the Constitution need not be quoted here, but it may be said that the last sentence of this section of the 'Constitution requires the Governor to communicate to the General Assembly at every regular session each case of reprieve, commutation, or pardon, with his reasons therefor, .stating the name and crime of the convict, the sentence, its date, and the date of the commutation, pardon or reprieve. This provision contemplates that a record of some kind shall be kept whereby this information may be supplied for the use of the General Assembly.

At the 1903 session of the General Assembly of this State an act was passed entitled, “An act to regulate applications for pardons.” Act 154, Acts 1903, page 270. It re'ads as follows:

“Section 1. The Governor is hereby prohibited from considering or granting any application for pardon, or remission of forfeiture of bail bond, until there is filed in his office a certificate of the county clerk, or the affidavit of two persons known to be credible, that the application for such pardon or remission of forfeiture has been published as hereinafter provided.
“Section 2. In applications for plardon in all cases of convictions for felony, and the offenses of wife-beating, unlawful carrying of weapons and the unlawful sale of liquors, the application setting forth the grounds upon which the pardon is asked, together with a list of the signers or petitioners uniting in the request for pardon, shall be published for two insertions in a weekly newspaper, if one be published therein, in the county where the conviction was had, or if the conviction was had in a county other than that in which the offense took place, then in the county where the offense was committed, in addition to the county where the conviction was had.
“'Section 3. In all cases of conviction for offenses other than those above mentioned, the publication of the intended application shall be made by posting the application, containing a statement of the grounds upon which the pardon is asked, as well as a list of the signers to any petition asking that the same be granted, in front of the usual entrance door of the courthouse of the county or counties, as above provided, for the period of ten days prior to the presentation of such application to the Governor.
“Section 4. In all oases where it is made to appe'ar to the satisfaction of the Governor that the person or persons interested, or concerned in any way, in the preparation or presentation of such application as attorney, agent or otherwise, have become so interested therein, and are actually rendering services in the prosecution thereof without fee, or the contract therefor to be afterwards paid or secured, and that the person whose pardon is asked, or relatives upon whom he can call for assistance in promoting his application, are not financially able to pay the expense of such publication, then he shall have the discretion to consider and grant such application without requiring the proof of publication herein provided for. And the Governor, acting upon his own motion, or being prompted thereto by the result of investigations made at his instance, shall have the right to grant a pardon in any case without the. publication provided for herein; but. all such pardons so granted by-the Governor shall state on the face of the certificate thereof that the same was granted by the Governor without application therefor being made to him by any attorney or paid representative of the person pardoned.”

■Section 5 imposes penalties upon persons presenting applications for pardons, etc., without complying with the provisions of the preceding sections. See Crawford & Moses’ Digest, §§ 3370-3374.

We set out the act in full because it has never been construed by this court, and it is necessary to consider it in its entirety to determine: (a) its constitutionality; (b) the extent to which the power to pardon has been restricted; and (c) the applicability of the provisions of the act to the facts in this case.

The portion of § 18 of article 6 of the Constitution of 1874 set out above comprising the first sentence of that section is substantially identical with the provisions on that subject found in the previous Constitutions of the State, except that of 1868.

It is apparent, of course, that the power to pardon is conferred on the Governor by the Constitution except in oases of treason and impeachment, and that it was not essential that any legislation be passed to make this power effective. In the absence of legislation the Governor might have exercised the power conferred in any manner he pleased, and might have prescribed any rules or regulations concerning its exercise which he thought would be helpful to him. But the Governor was not given the absolute power to grant reprieves, commutations, or pardons, but was given this power “under ¡such rules and regulations as shall be prescribed by law.”

Legislation which denied the right to pardon except in cases of treason land impeachment, or which so hampered the right as to make the power substantially unavailing, would be void as an abridgment of the power conferred. But the very sentence of the Constitution which conferred the power also gave the Legislature the right to regulate its use.

This limitation has been frequently recognized and declared. At page 161 ¡of Cooley on Constitutional Limitations (7th ed.) there is a note which reads: “The power to pardon offenders is vested by the several ’State Constitutions in the Governor. It is not, however, a power which necessarily inheres in the executive. State v. Dunning, 9 Ind. 20. And several of the State Constitutions have provided that it shall be exercised under suph regulations as shall be prescribed by law. There are provisions more or less broad to this purport in those of Kansas, Florida, Alabama, Arkansas, Texas, Mississippi, Oregon, Indiana, Iowa and Virginia.”

In the early case of Baldwin v. Scoggin, 15 Ark. 427, this court said: “The framers of ¡our State Constitution have entrusted the pardoning power to the Governor,' but thought proper to preserve to the Legislature the right to regulate its exercise. ” In that case it was ¡also said that the failure of the Legislature to regulate the exercise of the power would be rather an indication of confidence in the sound discretion of the executive than of a disposition to deny him the right to exercise the prerogative. It was there further said: “We are of the opinion therefore that the Governor has the power to remit fines under the provision of the Constitution above copied; and, until this power is regulated by law, may exercise it according to his own sound discretion.”

In the still earlier case of Ex parte Hunt, 10 Ark. 284, a pardon was granted which contained the condition that the pardonee should depart without delay from the State. At that time there was a statute giving the Governor the right to grant a plardon on condition that the pardonee should depart from the State and not return (§ 3375, C. & M. Dig.). The pardon to Hunt stipulated only that he should “depart without delay,” but did not state that he should not return, as the statute authorized the Governor to provide. It was insisted that the pardon was void beclause it did not recite the condition that the pardonee should not return. The court disposed of this contention by saying: “By comparing the conditions annexed to the pardon in this case with these provisions of the law, it will at once be seen that the executive clemency was exercised under his general discretionary power, not this latter special statutory clause. This is evident, because the terms annexed to the pardon are clearly within the power conferred to grant pardons prescribing his own terms, and cannot be made to apply to the latter clause for the obvious reason that the statute having specifically defined the conditions, terms, and penalties for la violation of that clause, the executive has no discretion in regard to such punishment, and, when he designs to act under it, must adopt its provisions. The fact therefore that he did not conform to this latter statute must be taken as strong evidence that he did not intend doing so. If he did, however, and has inadvertently omitted part of the provisions of the law in the condition annexed to his plardon, we. are not at liberty, by presuming what his intention might have been, to impose other and different terms upon the convict than the language used imports. Penal laws are ever construed strictly and in favor of liberty. (United States v. Wilson & Porter, 1 Bald. C. C. R. 78); and. pardons are to be construed most favorably to the convict. 4 Black. 401; 1 Chit. Cr. Law 772. ”

In other words, the right of the Legislature to prescribe regulations, and the duty of the Governor to follow them, were declared, but, inasmuch as the Legislature had not then attempted to exercise its right to regulate in all cases, the presumption was indulged that the Governor' had acted pursuant to his general power, which gave him the right to impose .conditions, and not pursuant to the statute which exercised a part only of the power of regulation conferred on the Legislature by the Constitution. We shall later see that the act of 1903, which is now the law, is much more comprehensive in the matter of regulating the exercise of this, power by the Governor.

The case of State v. Nichols, 26 Ark. 74, was one in which the nature of the power to pardon and the right of the Legislature to regulate was thoroughly considered. After discussing the nature of the Constitution of a State and of the restrictions imposed by the Constitution of the United States, it was .said: “So long as the people do-not infringe upon the power already delegated to the general government, they ■ áre fully authorized to deposit the power in such branches as to them may seem best. To illustrate: They had-the right to withhold all pardoning power from any one of. the three branches (of government); or, on the other hand, they had the right to vest the pardoning powder in either the legislative or judicial branches of the government.

The executive no more' represents the sovereignty of the State than either one of the other branches of the State Government. The pardoning power no more'vests in the' Governor, by virtue of his position, than it does in the judicial branches of the government, when the Constitution is silent.” It was there further said that “the chief duty of the exeéutive'is to see that the laws are executed, and, where the power to dispensé with the execution of the'law is given him, it should not be extended by implication. The power of dispensing with the law and its penalties partake more of a legislative than of an executive 'character. ” :

It is argued, however, that, inasmuch as'the case of Baldwin v. Scoggin, supra, was decided while the Constitution pf 1836 was in effect, the force of that decision is destroyed by the differences between our present Constitution of 1874 and iour first Constitution of 1836. The difference is that a comma appeared after the word “conviction” in the Constitution of 1836, whereas in the Constitution of 1874 a semicolon appears after the word ‘ ‘ conviction, ’ ’ and it is argued that the effect of this punctuation was to change the meaning of the Constitution so as not to give 'the Legislature any right to prescribe regulations ias to applications for pardons “in all criminal and penal .cases.” ...

• We concur, however, in the view expressed by counsel for the. State .in their brief that the framers, of the Constitution would not have relied upon a mere change in punctuation to effect an .entirely different policy in, a matter of this importance, and we.are of the' opinion that this slight change in punctuation does not warrant-,us in departing from, the construction given the earlier Constitution. , ,

We discussed the effect of this change- of punctuation in the case of Hutton v. McCleskey, 132 Ark. 391, where we said: “The fact that a semicolon follows the word ‘conviction,’ instead of a comma, as in the similar clause in the Constitution of 1836, cannot betreated as altering the meaning of the sentence. If we failed to so interpret the whole sentence, it would' confine the concluding phrase, ‘under such' rules arid regulations as shall be prescribed by law, ’ entirely to tbe preceding words concerning the remission of fines and forfeitures, and exclude the power of the lawmakers to prescribe rules and regulations concerning reprieves, commutations and pardons, a power which was clearly recognized by this court in the case of Baldwin v. Scoggin, supra.

We conclude therefore that the act in question is constitutional, and that the power of the Governor to pardon is not absolute, but is subject in its exercise to such regulations as the Legislature may see proper to impose and which do not substantially deprive the chief executive of this power.

It is apparent that the regulations of the act of 1903 are simple and ban be easily complied with. An analysis of the act readily demonstrates this.

By § 1 of the act the Governor is prohibited from granting pardons until there is tiled in his office a certificate showing that the application for the pardon has been published as in the act provided.

By § 2 it is provided that applications for pardons in cases of conviction for felony, wife-beating, carrying weapons, and the unlawful sale of liquor, shall be published for two insertions in a weekly newspaper, if one be published, in the county where the conviction was had, and that, if the conviction was not had in the county where the offense was committed, publication should be made in both counties.

By § 3 it is provided that in all cases of conviction for offenses other than those mentioned in § '2 of the act the publication may be made by posting the notice therein required on the door of the courthouse.

Appellee was convicted of a felony, and the provisions of § 2 would therefore apply in his case; but the undisputed testimony shows, indeed it is an admitted fact, that no attempt was made to comply with the requirements of that section, and that no proof of publication of any kind was ever filed in the Governor’s office. While we do not take judicial notice of individual pardons, we do know judicially that proof of publication of applications for piardons which are not made under § 4 of the act are filed, or are required to be filed, in the Governor’s office, and the affirmative and undisputed showing has been made that there was no such filing in the matter of appellee’s application.

It is provided in the act, however, that pardons may be granted in certain cases without complying with either the second or the third section of the act. These exceptions are contained in the fourth section of the act.

The first exception is where it is made to appear that the persons concerned in the presentation of the application are rendering service without fee or a contract for compensation to be thereafter paid or secured, and that neither the person for whom the pardon is asked nor any relative upon whom he might call for assistance is financially able to pay the expense of such publication, in which cases the Governor may consider and grant the application without requiring proof of publication.

Section 4 further provides that the Governor, acting upon his own motion, or being prompted by the result of an investigation made at his instance, shall have the right to grant a pardon in any case without the publication being made under either § 2 or 3 of the act. After enumerating the exceptions stated above, when publications shall not be required, it is further provided in § 4 that “all such pardons so granted by the Governor shall state on the face of the certificate thereof that the same was granted by the Governor without application therefor being made to him by any attorney or paid representative of the person pardoned.”

There is nothing in this act which substantially deprives the Governor of the pardoning power, for, to summarize its provisions, applications may be considered and granted to offenders of one class on the publication of a notice in a newspaper, and pardons may be granted to others not embraced in this first class by posting a notice, but, if notice is not published in either way, the Governor may grant pardons, whether moved thereto by the representations of others or by an investigation made by himself, provided, in all cases where publication is not made in one of the two ways, he shall state on the face of the certificate that it was granted by him without application therefor being made to him by any attorney or paid representative of , the person pardoned.

This statute was enacted under the authority of and pursuant to the provisions of the same isection of the Constitution which gives the Governor such right to pardon as he has at all, and it must therefore be construed as being mandatory, and any pardon which does not substantially comply with the requirements of the act must be held to be void.

It is pointed out that the pardon granted appellant states on its face that it was granted without application being made by any attorney or paid representative, and it is insisted that this recital should conclude the whole matter. It appears, however, as an undisputed fact, that this recital was placed on the pardon by the President of the Senate at a time when he was not acting as Governor. His authority to act had therefore ceased, and, if the purported pardon which he had issued and delivered was not valid during the time he was acting as Governor, nothing that he might do after he had ceased to be clothed with the powers of that office could give validity to it.

It is finally insisted that we have no right to inquire whether the statute was complied with or not, that is, that it was the exclusive function of the Governor to determine that fact, and that the grant of the pardon imputes a finding which is conclusive of the fact that the statute was complied with, even though the finding is now shown to 'have been erroneously made. We are cited to the old case of Davis v. Gaines, 48 Ark. 370, in which it Was held that the court would not inquire whether proof of publication of intention to introduce a local bill had been given after the same had been passed by the Legislature, and it is insisted that, unless we indulge the same presumption here, we are in the attitude of applying one rule to the legislative department of the Government and a different rule to the executive head.

We do not think, however, that we are doing this. It was not held that the provision of the 'Constitution in regard to notice of inténtion to introduce a local bill is directory merely and may be disregarded by the Legislature. In the case of Booe v. Road Imp. Dist., 141 Ark. 140, we had occasion to review the case of Davis v. Gaines, supra. There was a majority and a dissenting opinion in that ease, but it was agreed in both opinions that the provision of the Constitution in regard to notice was mandatory, and the majority disapproved language appearing in the Davis v. Gaines case which they construed as holding that the Legislature might, if it saw proper so to do, disregard, the provision concerning notice entirely. It was the view of the dissenting judges that such was not the meaning of the decision, and that what was meant and bad been decided was that the legislative determination that notice had been given was conclusive, so that it was the opinion of all the judges that the constitutional direction in regard to notice was mandatory. The Booe case and the cases cited in it make it plain how this conclusion was reached. It was pointed out that the Constitution did not require the proof of notice to be spread upon the journal of either House or that any other record be kept to evidence the fact that publication was made, and that, this being true, and it being the duty of the Legislature to determine in some manner satisfactory to itself that notice had, in fact, been given, and that, as this duty was imposed upon the Legislature, it would be conclusively presumed that the Legislature had discharged the duty, imposed upon it by the Constitution and had ascertained that notice had been given, and that this finding would not be reviewed unless, ns was pointed out in the Booe case, it was made to appear from some fact of which we could take judicial notice that the requirement in regard to giving of notice could not, as a physical fact, have been complied with.

Unlike the failure of the Constitution to provide that the Legislature should preserve in some way evidence that notice of intention to introduce a local bill had been given, the act of 1903 regulating pardons does contain that provision. The 'condition precedent is, imposed by the first section of the act that there shall be filed in the Governor’s office a certificate of the county clerk, or the affidavit of two credible persons, that notice of the application has been made in accordance with the provisions of the act hereinbefore set out and discussed.

Now, the word “filed”, as used in this section, in legal terminology, has a fixed and well understood meaning. “A paper or document is said to be ‘filed’ when it is delivered to the proper officer and lodged by him in his office.” “In the sense of the statute requiring the ‘filing’ of a paper, it is ‘filed’ when delivered to, and received by, the proper officer to be kept on file. The word carried with it the idea of permanent preservation of the thing so delivered and received that it may become a part of the public record.” These are among the definitions collated in 2 Words & Phrases under the word “File”, where numerous authorities are cited. That this is the correct meaning of the word “filed” is recognized by all courts and lexicographers. In addition to the authorities collated in Words & Phrases, supra, see 25 C. J. 1124, § 4, “D”, and numerous cases cited in note; Bouvier’s, Anderson’s, and Black’s Law Dictionaries, and cases there cited; ¡Webster’s and Funk & Wagnalls’, verbo “File.”

Unless and until this requirement is met, the Governor is prohibited from considering or granting an application for a pardon except as stated in § 4 of the act, and, if the pardon is granted pursuant to this exception, he must state on the face of the pardon itself that the same was granted without application being made to him by any attorney or paid representative of the person pardoned, so that if there had been publication that fact was required to be evidenced by the filing of the application in the office of the Governor, and if there were no notice, that fact should be evidenced by the recital which the Governor was required to make on the face of the pardon itself.

We have said that it was an undisputed fact that no proof of publication was filed in the Governor’s office, and, as it appears that the notation that no paid representative had made application for the pardon was not placed on the pardon while the President of the Senate was acting as Governor, it follows that the pardon was not issued in the manner provided by law, and is therefore void as such.

The decree of the chancery court will therefore be reversed, and appellee will be remanded to the custody of the warden.

McCulloch, C.J., and Hart, J., dissent.

McCulloch, C.J.

I maintain that the conclusion of the majority is erroneous for two sufficient reasons: (A), that the statute regulating the manner of presenting petitions for pardons is, so far as it affects the power of the Governor, merely directory, and that his failure to require observance of the statute does not invalidate a pardon; (B), that, even if the statute be held to be mandatory, the courts, in testing the validity of a pardon, must indulge the conclusive presumption that the Governor has correctly found and decided that the statute has been complied with.

In the first place, the statute bears all the earmarks of a merely directory provision, and none of the indicia of a peremptory command. Nor does the Constitution itself authorize the Legislature to place conditions or restrictions upon the power of the Governor. The authority conferred is to regulate, not to hinder or restrain. Any mandatory provision on the subject which would operate as a restraint upon the Governor is void. The authority conferred on the lawmakers is to regulate by giving directions to the Governor as to the method of granting pardons and to provide punishment for others who violate the requirements. This the statute under consideration has done, and no more. In that view, the statute is valid, otherwise it is void. If the Governor abuses the power vested in him iby the Constitution, he may be called to the bar of the Senate for impeachment, but his acts are not void.

The statute does not declare that a pardon granted without complying with the terms of the statute is void. It merely prescribes punishment for offenders who present petitions for pardons without complying with the statute.

A statute formerly in force in this State prohibited foreign insurance companies from doing business here without conforming to certain specified legal requirements and prescribing a punishment by fine for so doing, but this court decided that contracts made by such companies without complying with the statute were not void. State Mut. Fire Ins. Assoc. v. Brinkley, 61 Ark. 1. In disposing of the question, the court in that case said:

“It will be observed that, though penalties'are imposed in this act upon the persons or corporations doing the things therein prohibited without first complying with its requirements, it does not make void the contracts made by the insurance companies without such compliance either as the corporations named therein, or the policy holders in such companies. * * * The insurance contracts in this case were not void on account of the failure of the insurance company to comply with the statutory prerequisites to the right of a foreign insurance company to do business in this State. The penalty imposed by the statute was exclusive of any other forfeiture.”

In an early case this court, in defining the distinction between directory and mandatory provisions of a statute, said that requirements which are of the essence of the thing to be done are mandatory, but those which are not of the essence are merely directory. Miss. & C. R. Co. v. Gaster, 20 Ark. 455. Requirements in regulation of the method of granting pardons are not of the essence of the thing to be done—the act of granting the pardon.

In Sonfield v. Thompson, 42 Ark. 46, Mr. Justice Eakin, speaking for the court, said: “The definition of a directory, as distinct from a mandatory, provision in, a statute is that it enjoins something which it is the duty of the officer or person to perform, and for willful neglect of which he may be held liable in damages to any one injured, but the failure to do which does not have the effect of invalidating the act.’.’ There are very numerous decisions of this court defining this distinction. It has generally been, held that statutes prescribing the method of discharging duties by public officers are directory unless expressly or by necessary implication made mandatory. Ex parte Buckner, 9 Ark. 73; Byers & McDonald v. Fowler, 12 Ark. 218; Randolph v. Thomas, 23 Ark. 69; Thompson v. State, 26 Ark. 323; Little Rock v. Willis, 27 Ark. 572; Pierce v. Lyman, 28 Ark. 550; State v. Jones, 29 Ark. 127; Field v. Dortch, 34 Ark. 399; Holland v. Davies, 36 Ark. 446; Swepston v. Barton; 39 Ark. 549; State v. Certain Lands, 40 Ark. 34; Milleford v. State, 43 Ark. 62; Moore v. Turner, 43 Ark. 257; National Lbr. Co. v. Snell, 47 Ark. 407; State v. Agnew, 52 Ark. 275; Katz v. Goldman, 64 Ark. 395; Nixon v. Grace, 98 Ark. 505.

The holding in Baldwin v. Scoggin, 15 Ark. 427, to the effect that the failure of the Legislature to regulate the exercise of the constitutional power of granting pardons- and of remitting fines vested in the Governor does not deprive him of that power, shows that the provision of the Constitution in question is self-operating, and the power given to the Legislature is merely directory, for the power and duty of the Governor to act in the premises is given by the Constitution and cannot be suspended or postponed until the Legislature shall speak, for the Governor alone can grant pardons, and the Legislature, as it is conceded, cannot abridge that right, such rules and regulations would, in the very nature of things, be directory, so far as the Governor is concerned. As stated by the Supreme Court of Arizona in Gherna v. State, 146 Pac. 494, Annotated 'Cases, 1916D, p. 94, a self-executing provision of the Constitution does not necessarily exhaust legislative power on the subject, but any legislation must be in harmony with the Constitution and further the exercise of constitutional right and make it more available. The reason is that the Legislature is intrusted with the general power to make laws at its discretion, and is not a special agency for the exercise of specifically defined legislative powers. In that case the court had under consideration an amendment to the Constitution making it unlawful to manufacture or introduce into the State intoxicating liquors or to sell the same.

Therefore, the better reasoning in the case at bar is to hold that the framers of the Constitution merely meant to recognize the general power of the Legislature, and that the provision with regard to rules and regulations is directory. Of course, it would Ibe just as much the duty of the Governor to obey a directory as a mandatory statute. If a constitutional provision imposes a duty on an officer and no legislation is necessary to require the performance of such duty, it would seem that the important and particular thing sought was the performance of the duty imposed, and that the manner and method of its performance was directory merely. In other words, the essence of the thing to be done is the performance of the duty, and not the prescribed method of doing it, which is merely directory.

• Even if the statute is mandatory, the courts ought,when the Governor has granted a pardon, to indulge the presumption that all of the statutory requirements with respect to the presentation of the application have been complied with. There is always a presumption that public officers have discharged their duties until it is shown in proper form to the contrary. And there is a special reason for indulging this presumption with regard to the acts of the highest officer of a coordinate branch of the government. Such presumption has always been indulged by this court in regard to the proceedings of the General Assembly, except as to the single matter of recording the ayes and nays on the final passage of a bill, which is expressly required by the Constitution. Most courts, including the Supreme Court of the United States, hold that there is a conclusive presumption arising from the enrollment and signing of a bill by a legislative body that all requirements were complied with, and, as before stated, this court has announced in many cases that such a presumption will be indulged with reference to legislative proceedings except as to the matter of recording the ayes and nays on the final passage of a bill. This court has for a long time persistently held in regard to the requirement of notice of the introduction of a local bill in the General Assembly that there is a conclusive presumption that the Legislature found that the notice had been given, unless the records, of which we take judicial notice, show affirmatively that the notice was not given. In one of the late cases on that subject we said: “The result of our present view is that the provision of the Constitution is mandatory and should be obeyed by the General Assembly, but there is always a presumption in favor of the legality of the legislative proceedings and that such proceedings are conclusively presumed to have been in accordance with the constitutional requirements, unless the record of which the courts can take judicial notice show to the contrary.” Booe v. Road Imp. District, 141 Ark. 140. The test is whether or not there are records of which courts will take judicial knoAvledge showing affirmatively that the prerequisites have not been complied with. Now, there is no sound principle of law which would justify us in holding that the courts can take judicial notice of the records in the office of the Governor with respect to the application for pardon. There is no law requiring the Governor to keep in his office a r.ecord of his proceedings. On the contrary, the statutes of the State provide that the Secretary of State shall be the custodian of records which are to be kept, and that he shall “keep a full and accurate record of all the official acts and proceedings of the Governor.” Crawford & Moses’ Digest, § 4396. If it had been intended by the lawmakers to require the preservation of the record, the proper way to give such a direction would have been to require the filing of the application for pardons and proof of publication with the Secretary of State, either by the applicant or by the Governor. There is no provision at all for the preservation of the proof of publication, and there is nothing in the language of the statute which would justify an interpretation that the validity of a pardon depended upon the preservation of the record. Stress is laid in the opinion of the majority on the use of the word “filed” with reference to the proof of publication, but there is no significance in the use of that word, which has many dictionary meanings and was evidently used toy the lawmakers as specifying a requirement to present or deliver to the Governor such proofs. At any rate, the statute is complied with if the applicant for a pardon, his agent or attorney, hands the application and proof of publication to the Governor. If the Governor receives and considers it and grants the pardon, it is an extreme view of the law to say that the pardon is not valid unless the Governor preserves the evidences upon which he acted in granting it. Even if there was such a record kept, the courts would not take judicial knowledge of individual pardons. This is conceded in the opinion of the majority. Then how can a court in testing the validity of a pardon possess itself of facts with respect to compliance with the statute other than by hearing testimony pro and con? When the certificate of the county clerk or of “two persons known to be credible” is presented to the Governor, it is necessary for some one to determine whether the certificate of the clerk is sufficient in form and substance, or whether the two affiants are credible persons within the meaning of the statute, and this duty necessarily devolves upon the Governor. Who else is there to determine that question ? Will the courts do so in passing upon the validity of the pardon? When a pardoned convict is called to the witness stand in the court of a justice of the peace and the validity of his pardon is challenged, must he produce proof from the Governor’s office that there was an affidavit of two persons filed, and that they were credible persons? It is inconceivable to me that the lawmakers ever intended such a spectacle, and ye't such is the effect of the opinion of the. majority. The fact that there was no dispute about the facts in the present case is not important, for, if the opinion of the majority is correct, in any ease where there is a dispute, the trial court must go behind the face of the pardon and determine whether or not the law was complied with. The very fact that the Governor must necessarily determine, before issuing a pardon, whether or not the statute has been complied with, carries with it a conclusive presumption that he has properly discharged his duty. There are authorities supporting the view that such a presumption should be indulged, and none to the contrary, so far as I have been able to discover. In re Moore, 4 Wyo. 98; Hester v. Commonwealth, 85 Pa. 139; In re Edymoin, 8 Howard Pr. (N. Y.) 478.

There is another principle not to be overlooked— that the court should not lightly disregard long and continuous interpretations placed upon statutes by other departments of government, and it is undeniable that the universal interpretation of this statute by governmental departments and the public generally has been in accordance with the views hereinbefore expressed. In Lake County v. Rollins, 130 U. S. 662, Mr. Justice Lamar said that the simplest and most obvious interpretation of a Constitution, if in itself sensible, is the most likely to be that meant by the people in its adoption. The construction hereinbefore stated has been the general understanding of the bench and bar and those who have heretofore been Governors of the State. This court has recognized that in cases of ambiguous expressions or where the language admits of doubt, much persuasive force should be given to the construction given by the executive department whose duty it is to enforce the provision and language accepted by the agencies of government and the people. Vahlberg v. Keaton, 51 Ark. 534; Reynolds ex parte, 52 Ark. 330. The rule was clearly and forcibly expressed by Judge Mitchell in delivering the opinion of the Supreme Court of Minnesota in Willis v. Mabon, 16 L. R. A. 281, as follows:

“Of course it is true, as counsel suggests, that this court has never before been called on to decide the question, and that mere assumption on the part of either bench or bar does not make a thing law; but, on the other hand, it is also true that a construction which has for a third of a century been accepted by every one as an obviously correct as never to have been questioned or doubted is much more likely to be right than a newly discovered one, suggested at this late day by the emergencies of present litigation. The fact that no such view ever before suggested itself to the minds of court or counsel in the numerous cases where the point might have been made and where it was to the interest of counsel on one side or the other to make it, certainly raises a strong presumption against it. ’ ’

The fact that great inconvenience and harmful results will follow from this decision should make the courts slow to depart from the general interpretation heretofore placed upon this statute. Many an individual who has, in fancied security, carried away from the Governor’s office a full and free pardon from the effects of his crime will have his hopes dashed by being informed in the opinion of this court that his pardon is void. A pardon regular on its face ought to be impervious to collateral attack, and I believe that it is so. Otherwise, it must Ibe reckoned among the elusive things “that keep the word of promise to our ear, and break it to our hope.”

I am authorized to say that Mr. Justice Hart agrees with me in all that is said in this opinion.

Hart, J.,

(dissenting). I agree to the dissenting opinion of the Chief Justice, and in addition wish to add the following:

As stated in the dissenting opinion of Judge Wood and -myself in Easley v. Patterson, 142 Ark., at p. 71, one of the meanings in law given to the verb ‘‘exhibit” by Webster is to file of record. Hence, as there stated, it seems to me that when the framers of the Constitution provided that the-evidence of the publication of the notice required in case of local bills should be exhibited in the General Assembly before such act shall be passed meant that it should be filed of record there. Then, if any proof of publication of the notice appeared on file as a part of the records of the Legislature, the courts would not inquire into the sufficiency of the notice, 'but would indulge the conclusive presumption that the Legislature had found that it had been amended so as to conform to the Constitution.

On the other hand, if no.notice of publication of the notice was filed of record in the Legislature, this would be proof in the courts that the evidence of the notice having been published had not been exhibited to the Legisture and that the mandate of the Constitution had not been complied with. Now, it is evident that the majority opinion in this, as well as our cases bearing on the subject, proceeded upon the theory that the clause requiring that the evidence of such notice having been published shall be exhibited in the General Assembly addressed itself to the Legislature and not to the courts. So, when the special act was passed, the proof of publication of the notice had served its purpose by giving the required' information to the Legislature; and, although it might be a part of the records of the Legislature, it had served its purpose, and it would be no longer necessary to preserve it as a part óf the legislative records. Hence, if it was destroyed, there would be nothing left upon which a court might act either by way of judicial knowledge or by evidence aliunde.

It will be noted that the Booe case in. 141 Ark. 140 is not opposed to this view. There it was held that the court could take judicial notice of the date of the proclamation of the Governor under the Constitution for an extra session, and also of the date of the approval of the act passed at the special session. When this was done, it was conclusively established that the 30 days’ notice by publication required under the Constitution could not have been given. Thus it will be seen that the question' of, whether the proof of publication became a part of the records of the Legislature was not decided at all. As we have already seen, however, it appears, by necessary implication at least, under the majority opinion of Easley v. Patterson, 142 Ark. 52, that the clause requiring the notice of publication to be exhibited in the General Assembly was for the benefit of the Legislature, and, when it had served its purpose, need not be preserved.. If it was to become a permanent part of the records, it would be open to inspection by the courts at any time, just as the legislative journals, and the court could at any time take judicial .knowledge of th'eir state, condition or contents. If the court will not take judicial knowledge of the contents of the proof of publication of notice exhibited or filed of record under a mandatory provision of the 'Constitution, it seems inconsistent to make such a holding in case of statutes like this. It will be noticed that § 3370 prohibits the Governor from granting any application for a pardon until the certificate of publication has been filed in his office. So if the mandatory provision requiring evidence of notice in the case of special' acts tó be exhibited before the Legislature could páss the bill addressed itself, to the Legislature and not to the courts, with equal reason it should be held that the statute in question- prohibiting the Governor from acting upon an application for a pardon before the certificate of notice of publication, was filed in his office was for his benefit and could not be inquired into by the courts. The most extreme view that can be taken of the Booe case is that where the court ascertained

by evidence of which, it may take judicial knowledge that the notice required in case of special acts could not have been given, it will declare the act void. Now, it is evident that, even under the view of the majority opiüion, it cannot be said that it is conclusively established that the act in question was not complied with in the matter of publication of the application for pardon. Now, it is quite evident that the Lieutenant Governor stands in the shoes of the Governor when the latter is absent from the State. It may be that the publication required by the statute was had before the Governor left the State, and that the certificate thereof was filed in his office after he left the State, and while the Lieutenant Governor was in office. The latter might have deemed that the files with reference to the pardon were of no further use after the pardon was granted and have destroyed them. In such a case our judicial notice would not avail us anything. There would be nothing there. Again I repeat, if the mere requirement of filing means to be preserved-for judicial review by the courts, the rulé in case of local bills should be changed so that the notice required in case of local bills to be exhibited or filed of record should be preserved as permanent files to be reviewed by the courts in determining whether the mandatory provision of the Constitution had been complied with. It will be observed that there is nothing in the pardon statute requiring the Governor to write in the pardon that the statute with regard to the publication of the application had been complied with. . There is no statutory form of pardon where the publication is given. . It is only in cases where the notice is dispensed with that there is any special requirement about the form, and the requirement then is merely that the Governor state on the face of the certificate thereof that the pardon was granted without application thereof by any paid representative or attorney of the person pardoned.

The Constitution having conferred the absolute power upon the Governor to grant pardons, neither the Legislature nor the courts can enforce restraints in its exercise. Because the Governor has the- absolute power under the Constitution, its evasion or abuse is not a matter for the courts, but-for the people. It follows, that the whole statute under consideration is addressed to the judgment and conscience of the Governor, and he is to say conclusively, as he passes upon each application for pardon, whether legal notice has been given. Even if the evidence of the notice was intended to be preserved when filed of record, it is for the purpose of inf.orming the people whether the Governor has regarded the duty imposed upon him under the statute, and not. for the purpose of enabling the courts to review his action. In short, neither the courts nor the Legislature is capable of controlling the exercise of the pardoning power, which has been exclusively and unconditionally conferred upon the Governor, and they cannot assume to do so- without putting themselves in opposition to the fundamental principles of the Constitution and the construction heretofore placed upon it by the Governors and others interested in enforcing its provisions.

Smith, J.,

(on rehearing). It is insisted in one of the briefs filed in support of the petition for rehearing that the act under revietr was not properly passed, for the reason that the bill, not having been approved by the Governor, was not properly attested by the Secretary of State.

The following notation is indorsed on the original bill as the same appears in the office of the -Secretary of State: “This bill having remained with the Governor five days (Sundays excepted), and the General Assembly being in session, it has become a law this April 20, 1903. ’ ’ This notation was not signed by the Secretary of State.

By § 4971, C. & M. Digest, it is provided that “every bill which shall have- passed both houses of the General Assembly, and shall not be returned by the Governor within five days, having thereby become a law, shall be authenticated by the Governor causing the fact to be certified thereon by the Secretary of .State, in the following form: ‘.This bill having remained with the Governor five days, Sunday excepted, and, the General Assembly being in session, it has become a law this............ day of..................................D. B. G. .Secretary of State. ’ ”

It appears, however* that the bill was duly enrolled, and the enrolled bill was presented to the Governor. The rules of the General Assembly provided for the enrollment of bills and the presentation of the enrolled, and not the original, bill to the Governor for his consideration and approval, and the enrolled bill was presented to the Governor, and upon the bill as enrolled appears the notation required by the section of the statute set out above, and the certificate signed by the Secretary of State appears on the bill as enrolled. This was sufficient.

Moreover, it is provided by art. 6, § 15, of the Constitution, that “if any bill shall not be returned by. the Governor within five days, Sundays excepted, after it shall have been- presented to him, the same shall be a law in like manner as if he had signed it, unless the General Assembly, by their adjournment, prevent its return, in which case it shall become a law, unless he shall file the same, with his objections, in the office of the Secretary of State and give notice thereof by public proclamation within twenty days after such adjournment.”

It is thus stated when, according to the mandate of the Constitution, a bill shall become a law. It is not within the power of the. Legislature to add to or to take from this mandate. The omission of the -Secretary of State to make the indorsement set out above could not therefore prevent a bill from becoming a law, where the Constitution, in stating when a bill shall be a law, does not contain the requirements that the notation be made.

The proper passage of the act by the General -Assembly is also questioned in one of the briefs filed in support of the motion for rehearing, but we have examined the journals of both houses and find that the act was properly passed in both the Senate, where the bill originated, and in the House.

The petition for rehearing is overruled.