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

text:
    Road Improvement Districts 1, 2 and 3 v. Crary.
    Opinion delivered January 30, 1922.
    1. Highways — assessment op benefits — collateral attack. — A collateral attack on the assessment of benefits in a road improvement district cannot be made unless it is void on the face of the proceedings.
    2. HIGHWAYS' — ATTACK ON ASSESSMENT — LIMITATION.—An attack upon the assessment of benefits in a road improvement district on the ground that it was made on the wrong basis, or that the assessors failed to consider the actual amount of benefits to accrue to each tract of land, or that they failed to inspect the lands, or that one of the assessors failed to attend all the time that the assessments were being made, can be made only in the manner and within the time specified in the statute.
    3. Highways — zonal system Op assessment op benefits. — An assessment list of benefits which shows on its face that it was made according to the zone system is not invalid, even in a direct proceeding to test its validity, when it is shown that the plan was not adopted arbitrarily in disregard of the actual benefits to accrue.
    4. Highways — improvement district- — appointment of receiver.— While the chancery court could restrain the commissioners of a road improvement district from committing waste or other misconduct in excess of their powers, it could not appoint a receiver to take charge of the affairs of the district without statutory power conferred for the purpose of winding up the district.
    5. Highways — road districts covering entire county. — Road Acts 1919, p. 65, creating three road districts in Dallas County, covering the whole of the county, held not invalid as encroaching on the jurisdiction of the county court, as the whole of a county, or any part thereof, can be embraced in an improvement district for the purpose of constructing a single improvement, but separate and distinct improvements cannot be so grouped together as to tax lands affected by one improvement for the purpose of paying the cost of another improvement.
    6. Highways — validity of statute creating improvement districts. — Road Acts 1919, p. 65, creating three road improvement ■ districts in Dallas County, is not invalid because some of the roads being improved in three districts run from one district into another.
    7. Highways — conclusiveness of legislative finding. — Legislative determination in creating three road improvement districts that the group of roads in each district constitute a single improvement will not be disturbed on appeal unless obviously and demonstrably erroneous.
    8. Highways — road district — issuance of interest-bearing evidences of indebtedness. — Road Acts 1919, p. 65, creating 3 road districts covering an entire county, is not a violation of the constitutional provision against counties issuing interest-bearing evidences of indebtedness.
    9. Highways — road district — uniformity of taxation. — 1 Road Acts 1919, p. 65, creating three road districts in a county, is not invalid as violating the constitutional provision requiring uniformity in taxation, in that it authorizes assessments on real property, but not on personal property; nor is the act invalid in authorizing the assessments of homesteads.
    Appeal from Dallas Chancery Court; J. T. Stevens, Chancellor; reversed and
    affirmed.

      .S. F. Morton and. T. T>. Wynne, for appellants.
    The court erred in holding the assessments void. Concurrence of a majority of the assessors was sufficient in absence of showing that an absent member had no notice. Page & Jones, Taxation by Assessment, § 901. Such an irregularity, if it existed, would have been cured by confirmation of the assessment by the court; no appeal having been taken! within 30 days, as provided by § 9 of act 6 of Acts of 1919. 132 Ark. 143; 139 Ark. 277; 139 Ark. 173; 144 Ark. 632; 147 Ark. 475; Page & Jones, supra, § § 935, 927; 6 How. (N. T.) 386; 170 111. 93; 166 111. 48; 95 Ark. 575; 98 Ark. 543; 47 Colo. 79.'
    The court erred in appointing a receiver. 142 Ark. 21; 144 Ark. 550; 149 Ark. 383.

      Mehajfy, Donham £ Mehajfy, for appellee.

      Coleman £ Gantt, and Bose, Hemingway, Cantrell £ Loughborough, amici curiae.'

   McCulloch, C. J.

The General Assembly of 1919 enacted a statute (Boad Acts, 1919, vol. 1, p. 65) creating three road districts in Dallas County, designated as Nos. 1, 2 and 3, the territory of the three districts in the aggregate covering the whole of the county. The statute prescribes the boundary of each district and designates the particular road or group of connecting roads in each district to be improved. The commissioners of each district are designated, and, according to the terms of the statute, they are to proceed with the improvement of the designated roads in each of the respective districts. The statute is in the customary form now in vogue in recent legislation in this State, and authorizes the appraisement and taxation of benefits to the lands in the districts for the purpose of constructing the improvement, and authorizes the borrowing of money and the issuance of 'bonds. Each of the districts proceeded with the work authorized by the statute. The benefits were appraised in accordance with the provisions of the statute, and contracts were let, money borrowed, bonds issued and sold. A considerable portion of the work of improveing the designated roads in each district was done prior to the commencement of this suit, the proportionate extent of the work being in dispute.

Appellees are citizens and taxpayers of those districts, and instituted this action in the chancery court of Dallas County, attacking the validity of the statute creating the districts, and all the proceedings thereunder. There is an attack made on the correctness and validity of the assessment of benefits.

The case was tried upon the pleadings and proof, and the chancellor sustained the attack upon.the validity of the assessments and rendered a decree setting them aside and restraining the collection of taxes. The court also found that the commissioners had been improvident in the method of constructing the improvements and restrained them from “exercising any further control or management of the said district,” and appointed a receiver with instructions to “take charge of and collect all funds and property belonging to each of the defendant districts, and receive and receipt for all such funds and property and hold them safely in his hands until the further orders of this court.” The court decided against appellees in their several attacks upon the validity of the statute, and entered a decree dismissing the complaint with respect to those features of the case. The road districts have appealed to this court, and appellees have cross-appealed, bringing up for review that part of the, decree which was adverse to their contention.

The first questions to be disposed of are those arising on the direct appeal.

The statute provides, in substance, that the county court shall appoint three assessors to act-for each of the districts and appraise the benefits; that the assessors, after taking the oath of office, shall proceed to assess the benefits to the lands in each of the districts and inscribe the assessments in a book, and, after completing the same, file the assessment lists jwith the county clerk. The statute then provides that notice of the filing of the assessments and the date of hearing protests in the county court shall be given by publication. It provides that on the day named in the notice the county court shall meet and hear all complaints, “to equalize and adjust the same, and its determination shall be final, unless an appeal is taken and perfected-within thirty days thereafter to set aside its findings.” The statute further provides that the county court shall enter an order levying the assessments on real property in the district, “which shall have the force and effect of a judgment,” and that the remedy against such levy of taxes “shall be by appeal, and such appeal must be taken within twenty days from the time that such levy has been made, and on such appeal the presumption shall be in favor of the legality of the tax.” Secs. 8, 9, 11.

The statute was complied with in the appointment of assessors, the filing of the assessment lists, the publication of notice, and the order of the county court levying the assessments. No appeal was prosecuted from the order of the county court in regard to individual assessments or in regard to the levying of the taxes on the benefits. This action in the chancery court attacking* the validity of the assessment was filed long after the expiration of the time for appeal. The assessors adopted the plan for assessing benefits according to zones, classifying the lands according to distance from the roads to be improved. It is charged in the complaint that this adoption of the zcne system was arbitrary and unreasonable; that the assessors failed and refused to consider actual benefits to accrue from the roads; that each of the assessors was not present at all times when the assessments were made, and that they did not visit and inspect the lands in the districts.

We have often decided that the method, provided in the statute for attacking the validity of the assessment of benefits is exclusive, and that it must be pursued within the time prescribed by the statute. In other words, it has been settled by repeated decisions of this court that a collateral attack cannot be made upon the assessment of benefits unless void on the face of the proceedings. Reitzammer v. Desha Road Imp. District, 139 Ark. 168; Summers v. Conway & Damascus Road Imp. District, 139 Ark. 277; Nettles v. Hazelwood Road Imp. District, 144 Ark. 632; Sikes v. Douglas, 147 Ark. 469.

If it be true, as charged, that the assessments were made on the wrong basis, and that the assessors failed to consider actual amount of benefits to accrue to each tract of land, or failed to inspect the lands, or if one of the assessors failed to attend all the time that the assessments were being made, these were irregularities which could only be corrected in the manner and within the time specified in the statute. These facts cannot be shown in a collateral attack on the assessment where the assessment i's regular on its face, as in this case. The assessment list shows on its face that it is according to the zone system, but we have decided that that method of assessing benefits is not invalid, even in a direct proceeding to test its correctness, when it is shown that the plan was not adopted abitrarily in disregard of the actual benefits to accrue. Missouri Pacific R. Co. v. Conway County Bridge District, 134 Ark. 292; Rogers v. Highway Imp. District, 139 Ark. 322; Hines v. Road Imp. District. 145 Ark. 382; Board of Improvement v. S. W. Gas & Elec. Co., 121 Ark. 105.

The chancery court therefore erred in deciding that the assessments were invalid, and in restraining the en-. forcement of same.

The court also erred in restraining the board of commissioners from exercising further control over the affairs of the district and in appointing a receiver to take charge of the affairs of the districts and collect the funds and property. Paving District No. 5 v. Fernandez, 142 Ark. 21; Martin v. Hargrove, 149 Ark. 383. The court could restrain the commissioners from committing waste or from other misconduct in excess of power, but it could not appoint a receiver to take charge of the affairs of the district without statutory power conferred for the purpose of winding up the district.

The first attack on the validity of the statute is on the ground that the constitutional jurisdiction of the county court is invaded by creating a district covering the whole of the county. There is only one statute, but it creates three separate districts. Cumnock v. Alexander, 139 Ark. 153; Hamby v. Pittman, 139 Ark. 341. This does not constitute an invasion of the jurisdiction of the county court, even though the whole of the county was embraced. Bennett v. Johnson, 130 Ark. 507; Johns v. Road Imp. Districts of Bradley County, 142 Ark. 73; Van Hook v. Wallace, 143 Ark. 203. There is nothing to be added to the discussion set forth in the opinions in the cases just cited. The whole of a county, or any part thereof, can be embraced in an improvement district for the purpose of constructing a single improvement, (Bennett v. Johnson, supra), but separate and distinct improvements cannot be grouped together so as to tax the lands affected by one improvement for the purpose of paying the cost of another improvement. Swepston v. Avery, 118 Ark. 294. It is, however, insisted by learned counsel for cross-appellants that this case is distinguishable from former decisions of this court, particularly the case of Van Hook v. Wallace, supra, on the ground that some of the roads to be improved run through two of the districts, and, in fact, constitute a single improvement. It appears to be true that some of the roads being improved run from one district into another, but this fact does not distinguish the case from our former decisions, so far as it relates to an invasion of the jurisdiction of the county court. If certain roads running through all three of the districts constitute single improvements, as contended by counsel, this raises the question whether the Legislature ought to have separated them into separate improvements, but it does not affect the question of the jurisdiction of the county court in authorizing the improvement to be made, through the agency of improvement districts, rather than by general taxation under orders of the county court. Conceding that the particular roads mentioned might have been the subject of a single improvement, the enactment of the statute constitutes a legislative determination that the group of roads in each district constitute a single improvement, and we must respect the determination unless it is obviously and demonstrably erroneous. See cases cited, supra.

The other attacks on the constitutionality of the statute on the ground that it, in effect, authorizes the issuance by a county of interest-bearing evidence of indebtedness; that it violates the Constitution with respect to uniformity in taxation by authorizing assessments on real property and not on. personal property, and that it violates the Constitution in that it authorizes the taxation of homesteads, have all been decided against this contention by repeated decisions of this court, and these questions have become so firmly settled that further discussion is unnecessary.

The decree is therefore affirmed on the cross-appeal, but on the direct appeal of appellant the decree is-reversed and the cause is remanded, with directions to dismiss the complaint for want-of equity.

Hart J.,

(dissenting). I cannot agree with that part of the opinion which holds that an assessment of benefits according to the zone method, without taking into consideration anything else except the distance of the land from the road, is an irregularity merely which must' be taken advantage of in the manner provided for and within the time limited by the statute. I recognize that statutes requiring that au attack must be made on assessments for irregularities and inequalities within a limited time and in a prescribed manner are necessary. Bonds are usually issued to pay the cost of the improvement; and, unless there is some reasonable limit within which actions may be commenced in the respect named, the sale of the bonds would be seriously hampered.

This court lias generally upheld statutes fixing a time within which suits may be commenced unless some constitutional rig’ht of the taxpayer has been denied or invaded. But defects which are jurisdictional and indispensable, the Legislature cannot cure by limitation statute. Stiewel v. Fencing Dist. No. 6 of Johnson Co., 11 Ark. 17. To illustrate, the failure of the assessors to take the oath required by the statute, or even to organize in the manner provided by statute, does hot deprive the landowner of any constitutional rights, but to make the assessment of benefits by the zone system, without taking into consideration anything except the distance of the land from the road, is arbitrary and confiscatory; and is therefore a failure to observe a requirement imposed by the Constitution itself and not merely by the Legislature. While we have decided that the zone method of assessing benefits is legal when properly applied, it should not be used as an arbitrary mode of taxing the property of the individual. To make a unit of the entire distance in the zone regardless of other ■conditions is, in its practical effect, confiscatory in nearly every section of the State. Regard must be had to the topography of the land, the configuration of the earth’s surface, the fertility of the soil, the density of population, the use of the land, and its adaptability to any particular use, and everything else that might enter into an assessment of benefits.

Under our Constitution there can be no special taxation without corresponding- special benefits. To charge the cost of the improvement of the road in equal proportion upon farms lying within a mile or any other given distance on each side of the road at a fixed sum per acre is so obviously unreasonable and leads to such a destruction of private property rights that it cannot be upheld upon any principle of law with regard to an assessment according to benefits. The principle of such a system of assessing benefits is so unjust and so ruinous in its consequences that it should not be held to be a proper and lawful mode of assessing benefits. It is a wrong so grievous, and leads to such palpable injustice to the landowner, as to be destructive of the rights of property guaranteed as protected by our Bill of Rights. The result of such a system must inevitably be that the small landowner, or man of moderate means, who becomes in debt by sickness or industrial misfortune, will be compelled to abandon his farm or sacrifice it by sale for much less than its actual value in order to avoid total loss.

The record in the present case shows that in laying off the district into zones, no other matters 'were taken into consideration except the distance of the land from the roads. Such a system of assessment of special benefits, if made by the Legislature itself, would be void. It could not confirm such an assessment, and a statute prescribing such a method would be unconstitutional and void. Hence the objection .was jurisdictional and the Legislature could not cure the defect. In short, our decisions heretofore have been to the effect that the inclusion of unauthorized items does not invalidate the entire assessment, but only makes a case calling for the correction of errors, inequalities, and irregularities, in the manner and within the time prescribed by the statute.

Here the case is essentially different. An attack is made upon the entire assessment as being void because an arbitrary method of making it was adopted. If the method of making the assessment was arbitrary, it necessarily follows that the entire assessment was void; for there can be no special taxation of lands in this State without corresponding benefits.

I also dissent from that part of the opinion which holds that this case is governed by the rule, announced in Van Hook v. Wallace, 143 Ark. 203. In that case there was a section of the statute providing that the act should not be put into operation unless a majority of the qualified electors of Union County should vote to establish the district at an election to be called and held under the directions of the county judge of the county. In the present act provision is made for the improvement of 200 miles of improved roads. It is true the county is divided into three road districts, but the description of the roads shows that it was the intention of the Legislature that they should all be considered as one improvement.

In the Union County act it was provided that if the act was not put into operation, Road Improvement No. 1 as heretofore laid out by the county court, should continue in existence. No such provision is in the present act. When the descriptions of roads in the various districts are read and considered together, it is obvious that the Legislature intended but one improvement, and, in my opinion, the laying of the county off into three districts was merely an evasion of the Constitution. No semblance of jurisdiction over roads by the county court, as guaranteed by the Constitution, is preserved.


source: Caselaw Access Project

author: Wood, J.

license: Public Domain

text:
    Road District No. 27 v. Spradley.
    Opinion delivered January 30, 1922.
    1. Highways — permission to make expenditures — evidence.—In a proceeding by a road overseer for allowance against the county for work done on a public road, evidence held to sustain finding that before doing the work he obtained permission from the county court to do so.
    2. Highways — permission to make expenditures — necessity of written permission. — Under Acts 1917, p. 1478, requiring road overseers to obtain the county court’s permission to make expenditures, while the county court could require application for such permission to be made in writing, no such requirement is made by the statute itself.

      3. Highways — permission to make expenditures. — Where a road overseer discussed contemplated expenditures with the county judge, and was verbally authorized by- him to go ahead and do the work, and the county judge approved the work done, Acts 1917, p. 1478, requiring road overseers to obtain the county court’s permission to make such expenditures was substantially complied with.
    4. Appeal and error — question not raised below. — Objection that an account against a county was not verified and filed with the county clerk as required by Crawford & Moses’ Dig’. § 2029, cannot be raised on appeal for the first time.
    Appeal from Crawford Circuit Court; James Cochran, Judge;
    affirmed.
    J. E. London and Starbird■ & Starbird, for appellant.
    Tlie court erred in allowing the account. The statute was not complied with. Acts 1917, p. 478.
    It was error to employ or work more than twelve hands on the road at one time. C. & M. Digest, § 9001.
    The plaintiff had no authority to incur indebtedness for work on the roads in excess of the district’s revenues. 120 Ark. 509. He failed to make a full report of all work done by him on the roads. C. & M. Digest, §§ 5264 and 5343.

      E. L. Matlock, for appellee.
    No objections having been made to the sufficiency of plaintiff’s accounts in the court below, it is too late to raise the question here for the first time. 144 Ark. 267.
    There was no motion for new trial. The court can only correct such errors as appear in the record proper or in the judgment. 93 Ark. 85; 93 Ark. 382; 127 Ark. 22; 140 Ark. 218.
   Wood, J.

This is an appeal from the judgment of the circuit court of Crawford County in favor of the appellee against Crawford County in the sum of $241.50. W. P. Spradley was the overseer of Road District No. 27 of Crawford County. He presented to the county judge a claim as overseer for the sum of $241.50, which he alleged was due him for work done on public roads in the district of which, he was the road overseer. The county court refused to allow his claim, and he appealed to the circuit court. In that court he testified that the amount due him was $241.50. The accounts he presented made out in due form originally amounted to $457.50, which included various sums due other persons who worked under the appellee. The county court allowed these various sums, and then disallowed appellee’s part of the account. The work for which the appellee claimed pay was done on various roads in the district of which he was road overseer. Before doing the work he went over the matter with the county judge, explaining the nature of the work needed and giving him an estimate of the probable cost to the district in addition to the free labor. Judge Smith authorized the appellee to go ahead and do the work. The work was all done on regularly established public roads and was badly needed. After it was done the county judge looked it over and approved it. Appellee used all the free labor he could, and some labor was donated by persons not liable for road duty. The labor charged for was labor of men and teams that appellee necessarily had to pay for. Part of the work had to be done with a grader, and it required from two to three teams and an experienced man to run the grader. After the accounts were filed, Judge Smith held them up, but finally paid the amounts due the persons whom the appellee had hired to do the work and whose accounts appellee set out in his statement, but on the 7th of June, 1920, the county court disallowed the appellee’s part of the accounts. While appellee was working on the roads, the county judge knew that the appellee was hiring the grader crew and urged him to continue the work. He knew that Clegg, Johnson and McClure ran the grader, and he allowed and paid them for their work and for tin-men and teams they hired. Appellee spoke to the judg - on one occasion about allowing his accounts, and the judge replied that he was going to use appellee as an example to force other road overseers to comply with his rule. Finally, after the appellee became a candidate for county judge, the county’court took up appellee’s accounts and disallowed them. Appellee had in his hands a complete list of the men in Road District No. 27 subject to road duty, which he offered in evidence and asked that it be made a part of his testimony. The list contained the names of two hundred and fifty-six men. Appellee never did refuse to work free labor, but on the contrary, worked it up as close as possible and kept it practically exhausted. Appellee never refused to report to the county court the amount of free labor used or the number of men subject to road duty in his 'district. In his monthly accounts filed with the county court he showed how much free labor he had used as best he could from the information at hand. Appellee was overseer of about one hundred and sixty miles of public roads and had to let out a great deal of the work to other persons, and his information as to what was g’oing on under other crews was more or less incomplete. The men who ran the different crews used the grader, and the county court allowed their charges for the same just as the judge agreed that he would do for the appellee. Appellee never told the judge that he would not work the roads with just one team, nor that he would not work unless he could use all the teams. Appellee kept the county judge informed from time to time approximately of the number of men in the district subject to road duty, of the number of days worked by them, and when appellee would use up a book of wrarning’ notices he would file that book with the stubs filled >out showing who had been warned out and for how many days. These stub books and the report and accounts were all in the possession of the county judge.

The record contains reports of the appellee as road overseer of District No. 27 to the county judge, showing hired labor, hired teams, number of days worked and the amounts paid therefor. These reports were made for the terms ending, respectively, December 31. 1919, January 31, 1920, March 31,1920, and April 30, 1920.- In some of these reports, under the head of remarks, the condition of the roads is given and an estimate of what was necessary to put same in good condition.

Witnesses 'Clegg, Johnson and McClure testified that they were employed by the appellee to work on the public roads in the district. They were each given a hook of warning notices and instructed to warn all the free labor that they could use, and did so. The work done by them was on public roads, and was necessary. After they had finished the work they left the books with the free labor in them- at Van Burén with the appellee, and were told by appellee that they were lost. They turned in their accounts to the county court, which Avere allowed and paid direct to these several witnesses.

Judge bhnibh testified substantially as follows: At the election of 1918 the road tax for CraAvford County was not voted, but there was a residue of funds for District No. 27 which was used in accordance Avith previous practice until the funds were reduced to about $750 or $800. He then informed appellee that this amount would have to be set -aside for the building -of a new road that had been recently laid out by the county court, known as the “Mud Bridge road,” that to put this road in shape would exhaust the funds of the district. Witness directed the appellee to repair the roads -of the district with free labor, and that witness would take care of appellee’s pay as road overseer and of one team and one hand. This Avitness could do out of the county road and bridge fund appropriated by the quorum court for emergencies. Appellee said that he Avould not work that way; that if he could not work all three of his teams there was nothing in it for him. Witness then told the appellee that his accounts would be audited in Anew of the directions given him — that is, pay for one hand -and one team and his own wages as overseer, and no more; that -if he put in a claim for other hands and teams his claim Avould be disallowed, and if he failed to work the free labor his claim would be disallowed; that there was nothing left Avith wMcli to repair the roads but free labor. Witness told the appellee to make a list of all the free labor in his district and file same with the county clerk as the law directs. This the appellee refused to do. Appellee refused to file the reports required -of him as overseer at each quarterly term of the county court. Witness required the appellee, in his capacity as county court, to work the free labor which appellee refused to do, saying no former court had required him to do it and that he would not do it for witness. Appellee made no report of the free labor, work performed, money spent, roads repaired, bridges built, or anything else required by law for him to do. Witness held up appellee’s accounts for three months waiting for him to make the reports required of him, which appellee specifically refused to make. Appellee one day picked up a paper and wrote on it 160 and underneath it 500. He said the 160 represented the number of. hands subject to free labor and the 500 the number of days ’ work due from them. Witness refused to accept such a statement as a report, but required appellee to make a list by name and file the list with the county clerk, which appellee refused to do. Witness suggested to appellee that there was a large amount, of free labor due from smelter hands. Appellee replied that there was not ten. days’ labor there that could be had. Witness afterward appointed S. W. Burgett to work free labor, and he got 142 days’ free labor from smelter hands. Witness allowed and paid all other road accounts of other persons. He disallowed appellee’s account for the teams and men he hired. Witness had adopted a rule requiring.road overseers to make out and file a report. Two or three road overseers in the county had complied with the order. The road tax was not voted in 1919, but the quorum court levied the regular three-mill road tax. It was put on the tax books and collected and was used for roiad purposes.

An act approved March 21, 1917, act No. 290 of the Acts of 1917, p. 1478, constitutes the county judge of Crawford County a road commissioner and gives the county court of Crawford County charge of and supervision over all moneys collected for roads and bridges in Crawford County, and directs that no money arising from taxes collected for roads and 'bridges shall :be expended without the authority and direction of the county court, and provides that the overseers, before expending any money for any purpose on roads and bridges, shall apply for and obtain permission of the county court to make the expenditure, and in their application they shall state the amount needed, the purpose for which the money is to be expended and the place where; and further provides that no allowance shall be made by the county court until it has determined that it is a proper and necessary expenditure of the money.

The appellant contends that no application was made to the county court by the appellee as overseer for permission to make the expenditures in compliance with the above statute, and that no permission was granted him by the county court to make the expenditures. On this issue the testimony was in conflict. There was testimony sufficient to sustain the finding of the trial court. The appellee testified that before doing the work he went over the matter with the county court, explaining the nature of the work needed and giving an estimate of the probable cost to the district, and after the work was done the county judge looked over and approved the same. The obvious design of the above statute was to fully advise the county court of the work necessary to be done on roads and bridges in Crawford County and to get the authority of the court before such work was done. Under the above statute the county courts, of course, could require road overseers to make their applications for permission to make the expenditures contemplated in writing, showing the amount needed, the purpose for, and the place where the money was to be expended; but there- is nothing in the language of the statute to indicate that such requirement was mandatory, and therefore, a condition precedent to obtaining the permission of the county court.

It occurs to us that it is a sufficient compliance with the requirements of this statute where the overseer goes over the subject-matter thereof with the county court and advises it fully of the necessary improvements and the amounts required to make same, and in this manner obtains permission and authority of the county court to make them. Certainly, where permission of- the county court to make the expenditures has been thus obtained and after the work has been done, but before allowing any claim for expenditures on account thereof, the county judge has looked over and approved the work, the statute has been complied with in essential particulars, and the county court cannot fail to allow the claims for expenditures made under such circumstances. In construing this statute it must be remembered that the county judge is expressly made road commissioner. The testimony for the appellee tended to prove that in the particulars mentioned he had substantially complied with the statute.

The appellant urges that the trial court erred in allowing appellee’s claim because the same was not verified and filed with the county clerk, as required by § 2029, C. & M. Digest. The county judge who refused to allow the claim testified before the trial court and gave the reasons why. he refused to allow appellee’s claim, but he did not assign the failure to comply with the above statute as one of the reasons. No such objection to the claim was raised in the county court or in the circuit court. The appellee at the trial offered in evidence copies of the accounts and reports presented by him to the -county court, and no objection was made to their introduction.

In Hempstead County v. Wilson, 44 Ark. 267, it was urged in this court for the first time that the claim against the county was not properly itemized as required by the statute. Disposing of. that question, we said: “No objection to the sufficiency of the specification of the items was made in the court below, and it is too late to raise that question here for the first time. If objection had been made on that point, the court should have permitted amendment.” The appellant treated the account as sufficient in form in the court below, and he therefore cannot urge here that it was insufficient.

The appellant next contends that the appellee violated the provision’ of the statute making it unlawful for a road overseer to work more than twelve hands at the same time. Sec. 5308, C. & M. But there is no testimony in the record to warrant the conclusion that the appellee violated the provisions of this statute, nor was this made one of the grounds either in the county or circuit court for the rejection of the claim of appellee.

It is next insisted that the appellee was notified by the county judge that the funds of the district had been exhausted except what had been set aside for the building of a new road known as “Mud Bridge road,” and that he was directed by the county judg’e to use only free labor in the work, and that the appellee violated this order in doing the work for which he presented his claim. The testimony was sufficient to justify the lower court in finding against the appellant on this issue. While the county judge testified on direct examination that there was no road tax voted in 1918, and for that reason the road funds became exhausted, yet his testimony on cross examination shows that the quorum court in 1919 levied the regular three-mill road tax, and that it was put on the tax books and collected, and was used for road purposes; that he paid all other road accounts except the appellee’s; that he disallowed appellee’s account because he disobeyed or ignored the directions of the county judge in hiring teams and men, and also because he failed to comply with the directions of the county court in the matter of filing his reports. So the trial court was justified in finding that the appellee’s claim was rejected not because of lack of funds in the treasury to the credit of Road District No. 27. The court was also warranted in finding that the appellee did not disobey the orders of the county court in the matter of hiring teams and men and in the making of his reports. The issue as to whether the appellee had complied with the orders of the county court and the requirements of the statute in the discharge of his duties as road overseer was an issue depending upon the facts adduced at the hearing. There was substantial testimony to sustain the finding of ilie trial court in favor of the appellee. Its judgment is therefore correct and is affirmed. .


author: Hart, J.

text:
    Ferguson v. Crawford.
    Opinion delivered January 30, 1922.
    1. Associations — liability op officers. — The officers of a voluntary unincorporated association are hound to act for the common interest of the members and are individually liable for a breach of trust in the conduct of its affairs, and, where an association selected members as trustees to sell an oil lease, such trustees could not reap a profit for themselves, but will be compelled to account therefor at the suit of the other members,
    2. Associations — liability of officers. — Members of an unincorporated association owning- an oil lease, being- elected trustees for the purpose of selling the lease, could not, while acting as trustees, sell their interest merely in the lease when they could, with the consent of the other members, have sold the entire lease for a proportionately larger price, and must account to the other members for the profits which they would have made if they had sold the entire lease.
    3. Associations — liability of officers — evidence.—In an action by members of a voluntary association against other members sued as trustees for breach of trust, evidence held to justify a finding of the chancellor that defendants were trustees as alleged.
    4. Associations — right of member to sell interest. — A member of a voluntary association not an officer or trustee thereof, had a right to sell his own interest in the property as he saw fit, without accounting to other members.
    Appeal from "Washington Chancery Court; Ben F. McMahan, Chancellor;
    reversed in part.

      ’ STATEMENT OF FACTS.
    This was a bill in'chancery brought by appellees against appellants to compel them to account as trustees for certain profits made by them in selling an oil lease belonging to all the parties jointly.
    Appellants defended on the ground that they were not trustees at the time they sold the oil lease, and that they only sold their own interest in the property.
    All the parties to this suit were members of an'unincorporated voluntary association formed in the early part of the year 1914, for the purpose of drilling for and producing oil and gas for profit. The association purchased and owned an oil and gas lease of 80 acres in the State of Oklahoma, known as the Josephine Hill lease. It also bought and owned a string, or set of oil well drilling tools. The capital of the association was divided into sixty-four parts, and the shares or holdings of the individual members ranged from one sixty-fourth to one-sixteenth each. The capital with which the association operated was obtained by sehing shares to the members at a stipulated price for cash and by levying assessments against their shares pro rata to meet subsequent expenses.
    On the second day of July, 1915, the members of the association held a meeting which was participated in by a majority of the members, and J. A. Ferguson, George H. Pettigrew, and T. L. Hart, members of the association, were elected trustees with full power to take charge of and dispose of the property of the association. The record of the meeting shows the following:
    “On motion of G-eorge H. Pettigrew, I)r. W. T. Gabbert was nominated for chairman, seconded by C. D. Crawford, upon vote, Hr. W. T. Gabbert was elected chairman of the meeting unanimously. On motion of C. É. Crawford, seconded by J. A. Fallin, George H. Pettigrew was elected secretary. On motion of C. E. Crawford, seconded by C. T. Harding, J. A. Ferguson, George H. Pettigrew and T. L. Hart were elected trustees of the Caudle-English company, with full power and authority to take charge of the property of said company, consisting of an oil and. gas lease covering the N% of the SE% of section 6 in township 12 N., range 14 E., McIntosh County, State of Oklahoma, and the gas well and equipment on said lease. Also a string of drilling tools, engine and boiler, and to sell and dispose of same for a price or sum in their judgment most advantageous to the shareholders in said company. On motion, duly seconded, said trustees .were authorized to accept the proposition of John Neeley, i. e., 3/^ interest in a certain 80-acre oil and gas lease known as the Neeley-Ferguson lease, for the use of a string of tools in drilling two wells, and to ascertain the amount and definitely fix same, the Caudle-English Company is to pay .the said John Neeley for use of manila cable and belt in drilling said two wells. There being no further business before the meeting, same was on motion adjourned. W. T. G-abbert, chairman, George H. Pettigrew, secretary.”
    Ferguson, Hart and Pettigrew were present at the meeting, and accepted their appointment as trustees. They took charge of and assumed the control and management of the property of the association. T. L. Hart in a short time sold his interest to J. A. Ferguson, and thereafter ceased to act as trustee. J. A. Ferguson and George H. Pettigrew continued to act as trustees in the management and control and disposition of the property of the association. They levied and collected assessments from the members to pay the debts which had been incurred.
    In 1916 the trustees received an offer of $6,000 for the oil lease of the association and reported the offer to the members of the association and advised its acceptance. According to the testimony of the trustees, they regarded this as an advantageous offer and told the members of the association, upon their refusal to accept the offer, that they would no .longer act as ■ trustees. Thereafter they did not act as trustees, and Jas. A. Ferguson, A. L. Ferguson, his son, and George H. Pettigrew, who had acquired a ten-sixteenths interest in the (il lease, endeavored to sell their individual interests. In the meantime, Jas. A. Ferguson, who was past seventy-eight years of age, became very feeble in body, and his business affairs were attended to principally by his son, A. L. Ferguson, who was also his business partner. On the 19th day of April, 1917, A. L. Ferguson and George H. Pettigrew entered into a written contract with L. S. Skelton whereby they sold and transferred to him an undivided ten-sixteenths interest'in the oil and gas lease on the 80 acres above mentioned. Ferguson and Pettigrew were named in the contract as parties of the first part and Skelton as party of the second part. The agreement contained the following:
    “In consideration of the foregoing the party of the second part agrees and binds himself to pay to the parties of the first part at the rate of $12,500 for the whole lease, and if the parties of the first part should deliver only a 10/16 interest in said lease, then they shall be entitled to only a 10/16 of the sum of $12,500, and if parties of the first part shall deliver a 15/16 interest in said lease, then they shall be entitled to 15/16 of the .sum of $12,500.”
    “Party of the second part further agrees that at the time of the execution and delivery of the above mentioned assignments to assign, transfer and convey to the parties of the first part an undivided one-third (1/3) interest in the oil rights in said lease, but this shall not be held to include any of the gas or gasoline rights thereon, and said assignment shall provide that the parties of the first part shall pay one-third (1/3) of all expenses incurred in drilling and operating said premises for oil, and said assignment shall contain the usual covenants and proyisions in regard to the development 'of said premises and the payment of expenses incurred.”

      Prior to tliis sale the trustees obtained a one-eightli interest in another oil lease of 80 acres in the same locality as the land in the original lease in exchange for the use of the drilling tools of the association.
    Before the case was heard in the chancery court, J. A. Ferguson died, and A. L. Ferguson, as executor of his estate, was substituted for him. During the progress of the suit, E. Z. Davies of the firm of E. Z. Davies & Son, plaintiffs, died and Elza Davies, the surviving partner, was substituted as plaintiff instead.
    The evidence on the part of the appellees, who were the plaintiffs below, tended to show that J. A. Ferguson and George H. Pettigrew were still trustees at the time of the sale of their interest in the lease to Skelton on the 19th day of April, 1917, and that they would have sold their interest to Skelton at the price named in his contract with Ferguson and Pettigrew. On the other hand, the evidence for appellants, who were the defendants below, tended to show that they had ceased to act as trustees after the members of the association had refused to make the sale advised by them during the first part of the year 1916. The evidence on this branch of the case will be more particularly stated in the opinion.
    The chancellor found the issues in favor of appellees and entered a decree in their favor against A. L. Ferguson, as executor of the estate of J. A. Ferguson, deceased, A. L. Ferguson and George H. Pettigrew in the sum of $2,238.72. From that decree the appellants have duly prosecuted an appeal, and appellees have taken a cross-appeal.

      J..Wythe Wother, for appellants.
    J. A. Ferguson, Pettigrew and Hart were gratuitous, not salaried, trustees, and as such were liable only for gross negligence or carelessness. As to the essential ele- . ments in the creation of an express trust and the duration thereof, see 26 R. G. L. p. 1179, § 17.

      Where the bailment is beneficial to both parties, the .bailee is answerable only for want of ordinary care, or for ordinary neglect. 67 Ark. 284; 61 Id. 203.
    A g’ratuitous bailee is responsible for loss of property entrusted to his care only in- case of gross negligence. 103 Ark. 12; 101 Id. 75.
    Appellees reserved to themselves the right to reject the offers of purchase made to J. A. Ferguson and Pettigrew, and did reject the offer, thereby renouncing the trust and terminating it. 26 Ark. R. C..L. 1211, § 53; Id. 1713, § 56; 8 Leigh (Ya.) 271; 31 Am. Dec. 642; 16 Ala. 414; 50 Am. Dec. 183; 26 R. C. L. 1771, § 121.
    'A. L. Ferguson was never a trustee. The fact that he was financially interested with his father, and that he is executor of his father’s will, does not make of him a trustee. 26 R. C. L. 1278, § 128; 71 111. 91; 22 Am. Rep. 85. The office of trustee cannot be delegated unless authority to do so is expressly granted in the instrument from which the trustee derives his powers. 90 N. E. 278; 99 Tex. 349; 6 S. W. 181; 5 A. S. R. 59; 19 A. S. R. 290, note.

      J. W. Grabid, for appellees.
    This court, in the case of Red Bud Realty Go. v. South, 96 Ark. 281, 299, announced the principles that are applicable here. See also 134 Ark. 231; 2 C. J. § 353; Id. % 369; 2 Pomerov, Eq. Jur., 4th ed., § 963; 20 R. C. L. 878, § 91.
   Hart, J.

(after stating the facts) The undisputed facts are that all the parties to this suit were members of a voluntary unincorporated association known as the Caudle-English Oil Company, which owned an oil lease of 80 acres in the State of Oklahoma and also a set of drilling tools. On the 2nd day of July, 1915, by a written resolution duly spread upon the records of the association, J. A. Ferguson, George H. Pettigrew and T. L. Hart were elected trustees of the association with full power to take charge of and dispose of all the property of the association. They accepted and at once took charge of' the property of the association as trustees. In a short time Hart sold his interest to' Ferguson and did not take any further part in the affairs of the association. Ferguson and Pettigrew continued to act as trustees.

This brings us to a consideration of their duties and responsibilities as such trustees to the members of the association. The officers of a voluntary unincorporated association are bound to act for the promotion of the common interest of all the members, and they are individually liable to their associates for a breach of trust in the conduct of the affairs of the society. 5 C. J., 1351, and Wrightington on Unincorporated Associations', § 44. Accordingly the dealings of a trustee with the trust property are narrowly scrutinized by courts of equity, and in particular it is an inflexible rule in equity that a trustee to sell for others cannot either, directly or indirectly, reap a profit for himself, but will be compelled to account therefor at the suit of the other members. McNeil v. Gates, 41 Ark. 264.

The obligation of good faith on the part of the trustee towards the beneficiary and the rule that he cannot make a secret profit at the expense of his beneficiary is recognized by counsel for appellants, but he contends that it has no application under the facts presented by the record. The contention of counsel for appellants is that the trustees resigned nearly a year before they made the sale of their interest to Dr. Skelton, and for lb at reason owed no duties whatever to appellees and might act towards them as strangers. Until the relation was terminated by some unequivocal act on their part, the trustees were bound to act for the promotion of the common interest and could not secretly deal with the property of the association for their own benefit. Of course it is equally true that if they had resigned as trustees and had announced that fact to the other members, they would have been at liberty to deal with them as strangers and to have sold their interest without consultation with the other members and without their knowledge. Here is where the record shows a direct and irreconcilable conflict in the testimony.

Jas. A. Ferguson, A. L. Ferguson, and Greorge A. Pettigrew were all witnesses for appellants. According to their testimony, Jas. A. Ferguson was over seventy-eight years of age and became very feeble in body. He worried a good deal over the affairs of the association and desired to sell its property in the early part of 1916. A. L. Ferguson went to Oklahoma with his father to help him sell the property. A compan}*- which had a nearby lease agreed to pay them $6,000 for the interest of all the members of the association. They advised the other members to accept the offer. The other members refused to accept the offer, and the trustees-thereupon notified them that they would no longer act as trustees for the association and would thereafter deal with their individual shares as they saw fit. The Fergusons and Pettigrew had acquired a ten-sixteenths interest in the property of the association at the time they sold to Skelton oh the 19th day of April, 1917. Their letters show and they admit that they tried after the sale to Skelton to purchase the interest of their associates at a less amount than offered by Skelton, but this they claimed they had a right to do because they were no longer acting in the capacity of trustees for the association and had a right to deal with the members as strangers.

On the other hand, appellees, J. L. McConnell, -S. W. Caudle and Elza Davies each testified that he had never been asked to sell his interest on a basis of $12,500 for the whole lease, and that he would have done so if he had had such an opportunity. Each testified that he received a letter or other communication from the trustees after the sale by them to Skelton offering him a less amount for his interest; that he did not know, at the time, of the sale to Skelton. Each of them also testified that the trustees had never notified him that they had ceased to act as such.

Dr. W. T. Gabbert, one of the appellees, testified that he was a member of the association, and that he had never had an opportunity to sell his interest in the association after the sale to Skelton, and that he would have sold his interest on a basis of $12,500 for the entire holding. He stated further that he was never informed by either of the Fergusons or George H. Pettigrew that they, or either of them, had ceased to act ¡as trustees.

All the parties to this lawsuit seemed to have been friends as well as business associates in the beginning. There is nothing in the record tending to show that appellants formed the design of defrauding appellees out of their interest in the property of the association, but, by the well-established rule applicable to the duties and liabilities of trustees, all the profits made by them in dealing with the property of the association must inure to the benefit of the members, and the trustees must account therefor. Hence the decision must turn upon the point of whether appellants had ceased to act as trustees when the sale was made. As before stated, there is a direct conflict in the testimony between appellants and appellees as to whether the trustees had ceased to act as such at the time they sold their interest to Dr. Skelton in April, 1917.

The chancellor found in favor of appellees on this point, and there is nothing in the record which would justify us in reversing that finding as being against the weight of the evidence. Under the settled rules of this court, findings of fact made by a chancellor are binding upon us on appeal unless they are against the clear preponderance of the evidence. Ferguson and Pettigrew, according to the findings of the chancellor, continued to be trustees of the association at the time they sold their interest to Skelton. Their contract with Skelton provided for the sale of the entire holding at $12,500. Hence, under the principles of equity above announced, they must account to their associates for the profits they would have made on tliis basis. Tliis, together with the sale of the personal property of the association, would have made appellants liable to appellees in the sum found due by the chancellor, and the decree against the trustees should be affirmed.

It does'not follow, however, that there should be an affirmance of the decree against A. L. Ferguson. He was never a trustee of the association and never acted as such. He was the business’associate of his father, and on account of this and his filial affection, he tried to help his father sell the property of the association in 1916. The members of the association refused the offer which the trustees had received, and this ended the matter, in so far as A. L. Ferguson was concerned. It is true he participated in the sale to Dr. Skelton in April, 1917, but he was not a trustee and had a right to sell his own interest in the property. He had a right to deal with his own interest in the property as he saw fit and cannot be held accountable as trustee because he saw fit to do so.

Upon the cross-appeal of appellees but little need be said. The trustees made a full and fair accounting of their dealings with the personal property of the association, and the finding of the chancellor on the accounting between the trustees and the other members of the association is correct.

As above stated, there was no actual fraud on the part of the trustees. The whole transaction involved in this lawsuit resulted from a misunderstanding as to whether the trustees had ceased to act as such at the time they sold their interest to Dr. Skelton.

We are of the opinion that the finding of the chancellor upon the accounting is correct, and do not deem it necessary to prolong this opinion! by setting out and discussing the various items of the account and our reasons for holding the account to be correct. No useful purpose could be served by such a course.

The result of our views is that the decree against A. L. Ferguson must be reversed and the cause of action against him will be dismissed. The decree in favor of appellants against A. L. Ferguson, as executor of the estate of J. A. Ferguson, deceased, and George H. Pettigrew will be affirmed. It is so ordered.


text:
    Sherrill Hardwood Lumber Company v. H. D. Glass Lumber Company.
    Opinion delivered January 30, 1922.
    1. Sales — necessity op delivery. — A sale of machinery was not completed where there was neither manual nor symbolical delivery.
    2. Replevin — right to maintain. — Where neither title nor the possession of machinery passed under a contract of sale, the purchaser was not entitled to maintain replevin against the seller.
    Appeal from "White Circuit Court; J. M. Jackson, Judge;
    reversed.
    STATEMENT OP PACTS.
    Appellee brought this action in replevin to recover from appellant two boilers of which it claims to be the owner.
    Appellant answered, denying the ownership in appellee and averring title to the boilers in itself.
    On the 26th day of November, 1919, appellant wrote to appellee enclosing a circular of second-hand machinery for sale, together with a price list and stating that the machinery was all in good serviceable condition. Among the second-hand machinery listed for sale were two boilers priced at $500. Appellee telegraphed appellant that it would accept the two boilers for $500, and was sending a cheek for half of that amount. On January 5, 1920, appellee sent appellant a check for $250 to be applied on the purchase price of the two boilers. Appellant answered the letter, and stated that the boilers were listed at $500 each, and that it would hold the cheek for appellee.

      According to the testimony of appellee, it not only sent to appellant a check for $250 in part payment of the boilers, but it also paid $425 storage charges to obtain the release of a claim of some one in actual possession of the boilers.
    According to the testimony of appellant, the $250 was finally accepted by it as a payment on an entirely separate piece of machinery, and appellee so understood it. There never was any change of possession in the boilers or delivery of them to appellee.
    Under the instructions of the court the jury returned a verdict for appellee, and from the judgment rendered appellant has duly prosecuted this appeal.

      G. E. Garner, for appellant.
    A contract of sale consists of an agreement between the parties, and in addition thereto a delivery of the chattel. 91 Ark. 422. Here there was no agreement and no delivery, and replevin would not lie. His remedy would have been for breach of contract, had there been a sale and symbolic delivery.
    The offer to pay one-half only of the price for the boilers, even as construed by appellee, was a departure from the terms of sale, and invalidates the offer. 97 Ark. 613, 134 S. W. 942.
    There was no binding contract of sale, as the parties never agreed on the proposition. 95 Ark. 421.
    No brief for appellee.
   Hart, J.

(after stating the facts). According to appellee’s own testimony there should have been a verdict in favor of appellant. Appellant retained possession of the boilers, and there was no transfer of possession, actual or constructive. It is not claimed that there was any manual delivery of the boilers, and there is nothing from which it may be inferred that there was a symbolical delivery of them. Hence the sale was not completed. Harper v. State, 91 Ark. 422.

The boilers not having been delivered to appellee, the title did not pass to it and it cannot maintain replevin to recover possession of them. Carpenter v. Glass, 67 Ark. 135, and Jones v. Burks, 110 Ark. 108.

It follows that the court erred in directing a verdict for appellee as requested by it, and for that error the judgment must be reversed, and the cause will be remanded for a new trial.


author: Smith, J.

text:
    Moore v. State.
    Opinion delivered January 30, 1922.
    1. Criminal law — argument op prosecuting attorney. — In a prosecution for manufacturing intoxicating liquors, it was prejudicial error to permit the prosecuting attorney to state to the jury that defendant’s attorney, in defending another person accused of operating the same still, had argued that this defendant, and not the defendant in that case, was the guilty person, both because the statement was not based upon the evidence, and because defendant’s attorney had no authority to bind him by admissions made in a case to which he was not a party.
    2. Criminal law — evidence—statements in dependant’s absence. — The statements of a third person, made in accused’s absence, are not admissible against him.
    3. Criminal law — evidence.—Since proof of damaging statements made in defendant’s presence are admissible only when not denied by him, such statements are incompetent even though made in his presence where he denied their truth.
    Appeal from Hempstead Circuit Court, George B. Haynie, Judge;
    reversed.

      Steve Carrigan, for appellant.
    Instruction No. 3 should have been given in full. It was error for the court to modify it. 34 Ark. 756; 93 Ark. 316; 120 Ark. 494.
    The argument of the prosecuting attorney was improper and prejudicial. 141 Ark. 442; 58 Ark. 481; 58 Ark 368; 138 Ark. 517.

      J. S. Utley, Attorney General; Elbert Godwin and W. T. Hammock, Assistants, for appellee.
    Even if the argument of the prosecuting attorney was improper, it was not prejudicial. 73 Ark. 453; 74 Ark. 256; 100 Ark. 437; 86 Ark. 600; 93 Ark. 564; 34 Ark. 649; 95 Ark. 321.
   Smith, J.

Appellant was convicted of manufacturing intoxicating liquors, and lias appealed.

In Ms concluding argument the prosecuting attorney made the following statement:

“Gentlemen of the jury, I am somewhat tickled and amused at my friend Carrigan, when he argues this case and says that Badge Moore is not guilty of putting up or running or having the still in this case. Carrigan tries to get the jury to think that Jim Thomas was the one who put up the still and had it and run it. This sounds funny to me when I think that the other day when we tried Jim Thomas for having this still, and Carrigan was defending him, that he argued to that jury then that Thomas did not have anything to do with the still, and said that Badge Moore, this defendant, was the closest man to the still, and that if any one knew about the still it was this defendant, Badge Moore.' Now, when we are trying Badge Moore, and the shoe is on the other foot, Carrig-an now says that Thomas was the man Who had the still, and knew about it, and Badge Moore had nothing to do with it. This is a funny argument to me, gentlemen of the jury.”

• The record shows that “the defendant at the time objected to this argument of the prosecuting attorney, and asked the court to instruct the jury not to consider the same, for the reason that there is no evidence before the jury that Jim Thomas was tried for running this still, that, there is no evidence before this jury that Carrigan defended him, that there is no evidence before this jury that Carrigan made an argument in that case that Badge Moore set up, owned and run the still in this case or had anything to do with it.

“And further the defendant asked the court to instruct the jury not to consider the argument of. the prosecuting attorney, and to reprimand the prosecuting at-, torney for making this argument to the jury. The court overruled the defendant’s objection to this argument, and refused to instruct the jury not to consider the argument of the prosecuting attorney, and refused to reprimand the prosecuting attorney for making this argument.”

The testimony on the part of the prosecution was to the effect that the sheriff, with some deputies, found a still in actual operation on the farm of a white man named Jim Thomas. Appellant was ia tenant on this farm, and the still was located about 150 to 300 yards ■from his house, the testimony of the witnesses varying as to the distance. The sheriff testified that the still could have 'been seen from appellant’s house but for the fact that there was a pine thicket between the still and the house. As the officers approached the still, they saw a white man and two colored men running away from the still. A wagon track was found leading from the still to Thomas’ house; and a black ring was found in the wagon bed which had apparently been made while the still was in tbe wagon. Other circumstances strongly connected Thomas with the operation of the still. A pair of overalls was found at the still, and in one of the pockets a ticket was found showing the sale of a load of cotton seed to the oil mill at Hope, which was made out in the name of Thomas, and, over appellant’s objection, the sheriff was permitted to testify that he showed Thomas the overalls, and asked him whose they were, and that Thomas said the overalls belonged to appellant, and explained that the ticket had been made out in his own name, rather than in the name of appellant, because he had told appellant a better price could be ■obtained for the seed if they were sold as belonging to him, rather than to appellant. This conversation between the sheriff and Thomas occurred in the absence of appellant, and when appellant was asked about the overalls he denied that they were his.

We think the argument of the prosecuting attorney was improper and prejudicial, and that the court erred in not telling the jury to disregard it.

The record before us makes a stronger case against Thomas than it does against appellant, although it is legally sufficient to sustain the conviction against appellant. But there was no testimony to support the ■argument made toy the prosecuting attorney. It is true the same attorney represented both Thomas and appellant; but they were separately tried, and the attorney, in defending Thomas, had no' right to make admissions against appellant’s interest; yet the necessary effect of the statement set out above was to admit the guilt of appellant. The prosecuting attorney would not have been allowed to prove, in appellant’s trial, the admissions ■of his attorney made in the defense of Thomas as Thomas’ attorney; and yet the statements were made toy him without any testimony having been offered on which to base them.

The statement of the prosecuting attorney does not constitute a mere expression of an opinion as to appellant’s guilt. It goes further and practically represents appellant’s attorney as having admitted appellant’s guilt in the trial of another person charged with the commission of the same crime. This the attorney had no right to do, and the court should have told the jury to disregard the statement 'of the prosecuting attorney.

We think error was committed in admitting the testimony of the sheriff in regard to Thomas’ statement about the overalls, made in appellant’s absence. Proof of damaging statements against an accused person, made in the presence of the accused, are admitted upon the theory that the jury might find that the silence of the accused, in the face of aocusatioi^vas a tacit admission. Of course, such testimony might, or might not, have this probative value, the circumstances of the case being such that the jury might find that the accused was not called upon to make denial; tout this would be a question for the jury under the circumstances of each particular case. Here, however, Thomas’ statement was not only made in appellant’s absence, but was denied by appellant as soon as he was advised the statement had been made. Tf Thomas had been called as a witness, it would not have been improper to allow him to testify that the overalls belonged to appellant and that he had directed appellant to sell the seed in his (Thomas’) name; but Thomas did not testify at the trial, and the testimony objected to was a repetition of a statement made by Thomas at the time of his arrest in the absence of appellant. But, even if the statement of Thomas had been made in appellant’s presence, it would have been incompetent because appellant denied making it. This was erroneous, and we think it prejudicial. Davis v. State, 141 Ark. 170; Bloomer v. State, 75 Ark. 297; Housley v. State, 143 Ark. 315; Hines v. Patterson, 146 Ark. 367.

Other errors were assigned; but we do not think them of sufficient importance to require discussion.

For the errors indicated the judgment is reversed, and the cause remanded.