text:
    Oil Fields Corporation v. Meek.
    Opinion delivered February 25, 1929.

      Albert L. Wilson, for appellant.

      Harry E. Meek, for appellee.
   Smith, J.

On the 10th day of March, 1924, J. H. Meek was appointed receiver in a cause pending in the chancery court of Ouachita County, involving the extensive holdings of the Oil Fields Corporation, a defendant in the suit.

Several common law trusts had -been promoted by Cordon Ingalls, John iS. Dashko, and their associates, which, on May 17, 1923, were consolidated as and absorbed by the Oil Fields Corporation, a corporation which was organized under the laws of Delaware for that purpose, and hereinafter referred to as. the corporation.

These trust estates had been financed by solicitations through the mails and newspaper advertisements, inviting the public to invest in the beneficial certificates of the trust estates, and these invitations had been accepted by more than ten thousand persons, scattered over the United States and foreign countries, who invested over ¡a million seven hundred thousand dollars in the beneficial certificates. Certain of the promoters of these trusts and organizers of the corporation were convicted in the Federal court on the charge of the fraudulent use of the mails, and thereafter this suit was brought, and J. H. Meek was appointed receiver for the corporation. On May 19, 1924, the receiver filed a report, in which he made an inventory of the assets and liabilities of the corporation, and thereafter made monthly reports of his receivership, as the order appointing him required that he should do.

A decree was entered November 27,1925, discharging the receivership and directing the receiver to restore the property to the corporation as of December 1, 1925, and to make a final report, which was. filed January 16, 1926. Exceptions were filed to this report by the corporation on January 25, 1926, and the receiver filed a demurrer to the exceptions, which the court sustained. An appeal was duly prosecuted from this decree, and it was held on the appeal that the chancellor erred in sustaining the demurrer and in confirming the final report of the receiver, and that testimony should have been heard upon these exceptions, and the cause was remanded with directions to overrule the demurrer, and for further proceedings. Oil Fields Corporation v. Meek, 175 Ark. 318, 299 S. W. 29.

Upon the remand of the cause, much testimony was offered upon the exceptions, and the court made a finding in favor of the receiver upon each of them. The court found, however, that the receiver had failed to obey an order made October 5, 1926, in which the receiver was directed to pay over to the corporation the sum of $23,431.06 in his hands, but had appealed from this order, holding the money until January 16, 1928, at which time he.filed a supplemental report, and that interest at six per cent, should be charged upon this sum 'between these dates. An appeal was prayed, and has been duly prosecuted by the corporation, and the 'receiver has prayed a cross-appeal.

After several days had been devoted to hearing the testimony on the exceptions, the trial was suspended, and two accountants were appointed to audit the receiver’s report. Each side selected an accountant, and it was stipulated by the parties that the joint report of the auditors should be offered in evidence in lieu of the original books, of the receiver.

It is first insisted that the corporation sold some oil to various parties just before the appointment of the receiver, amounting to $2,502.16, and that the receiver took over this collection and had not accounted therefor. It appears, however, that the receiver did charge himself with the full amount of these accounts, and there is nothing in the report of the auditors — which appears to have been very exhaustive — to indicate that a proper accounting for these items had not been made. It may be said that one of these auditors was the president of the corporation, who was very hostile to the receiver and the receivership, and who was thoroughly familiar with the affairs' of the corporation.

It was alleged in the exceptions that the receiver had reported and sought credit for excessive expenditures for operating leases owned by the corporation. Much testimony was heard upon this item, which we have considered but do not review, as no useful purpose would be served in doing so. The receiver was directed, in the order appointing him, to operate the leases, and in doing this he would be liable only for failure to operate them honestly and in the exercise of his best judgment, and would not be liable for poor results or small profits, unless it were shown that his operations were reckless or were characterized by bad faith. Section 75, page 71, and § 89, pp. 81 and 82, chapter “Receivers,” 23 R. O. L.; note to case of Shedd v. Seefeld, 120 Am. St. Rep. 269, at page 278 thereof; State v. Germania Bank 130 Am. St. Rep. 599; State ex rel. Collins v. Gooch, 2 Am. St. Rep. 284; 1 Tardy’s Smith on Receivers (2 ed.), § 43, page 199, § 48, pages 208 and 209. That showing was not made; indeed, it is strongly insisted that the receiver’s management and the results secured by him compare favorably and to the receiver’s advantage with the operations of the corporation before the receivership.

It is sought to charge the receiver with the loss of ten cents per barrel on oil sold to the Standard Oil Company, upon the. theory that the oil could have been sold to other companies at a price ten cents per barrel greater than that paid ;by the Standard Oil Company. It appears that there are fonr or five major pipe-line companies -which buy oil in the field where the lands of the corporation are located, and that these companies announce their “posted price,” which is usually the same for all of them, for oil, and that the price of oil is so governed until another price is “posted,” either an advance or a decline over the former price which it supersedes. There are smaller pipe-line companies operating in the field, but operators generally prefer to sell to the larger companies, for the reason that the operator, after selling his oil, is unable to retain a lien on it, and must accept an unsecured debt for his oil. The smaller pipe line companies therefore usually offer and pay a price for oil in excess of the posted price, and it is this excess over the price paid by the Standard Oil Company which the exception would charge to the receiver. The court overruled this exception, and charged the receiver only with the price paid by the Standard Oil Company, the price received, and the wisdom and justice of this ruling fully appear from the discussion of the next item.

The corporation, before the appointment of the receiver, sold oil to one of the smaller pipe-line companies, the Arkansas Pipe Line & Navigation Company. The last-named corporation appears to have been organized by Ingalls and his associates for the purpose largely of buying oil of the corporation, and, at the time of the appointment of the receiver, it was indebted to the corporation in the sum of $79,017.33. The pipe-line company was placed in a receivership by the State court because of the failure to pay its office expenses, and, ten days after Meek’s appointment as receiver for the corporation, a proceeding was inaugurated to adjudge the pipe-line company a bankrupt, and that adjudication was made on April 8, 1924. Meek had been appointed receiver for the pipe-line company in the State court, and it is insisted that this company was not a bankrupt, and that tlie receiver could and should have made that showing in opposition to the petition that it should be declared a bankrupt, and that, if this had been done, the pipe-line company would not have been adjudged a bankrupt, and a proper administration of its assets would have paid much, if not all, of its debts, and that the receiver should therefore be charged with this item.

The court properly overruled this exception. It .is undisputed that the pipe-line company committed an act of bankruptcy when it was placed in the State court receivership through insolvency, and competent counsel unsuccessfully resisted the adjudication. It is not claimed that the receiver failed to account for any money received through the winding up of the affairs of the pipe-line company.

The principal exception relates to the loss of oil, which, it is insisted, was shown to have come into the receiver’s hands and not accounted for.

It appears that, when the corporation began to produce oil, it found difficulty in selling its product because of a defect in the title, and this appears to have been the reason for the organization of the Arkansas Pipe Line & Navigation Company as a subsidiary corporation, and the only oil sold prior to the receivership had been sold to the Arkansas Pipe Line & Navigation Company. When the receiver took charge of the assets of the corporation, he found a large amount of production in storage. This storage was in earthen pits, some of which had been there for nearly two years. Testimony was offered as to the size and cubic content of these pits, and calculations 'based on these measurements were made, showing the quantity of oil on hand when Meek took charge. To this quantity there is added the amount of oil shown by the daily production reports of the receiver, and from this total there is subtracted the amount of oil which the receiver sold and accounted for. It is insisted that the receiver is liable for this difference.

Much testimony was taken on this item, and we think it clearly appears that a large per cent, of the storage in tbe earthen pits was not pipe-line oil. Through exposure for months much of the volatile element had escaped through evaporation, and it was necessary to treat or coot the oil before it could be received by the pipe-line company, and in some of the pits the oil had solidified until it was “like axle-grease,” and had to be boiled, and the loss from evaporation was from ten to fourteen per cent. There was in other pits a large proportion of water and basic sediment, referred to by all the witnesses as B.S., and there was testimony placing the per cent, of water and B.S. in some of the pits as high as sixty to seventy per cent. It was also shown very clearly that the daily production reports of oil were not to be identified with the pipe-line run reports, for the reason that the daily production reports included much water and B.S., which had to be eliminated before the residue was placed in the pipe line.

Upon a consideration of all the testimony we think it very clearly appears that the receiver’s daily production report did not refer to pipe-line oil, but referred to the fluid as it came from the well, including the water and the B.S.

It was shown that the only accurate method of. determining the net production from a well or a lease is to accept'the pipe-line company’s gauge, and the receiver appears, to have accounted for all the oil thus measured, and there was no other oil. It is true that there were several of these pipe-line companies, but each of them kept records showing the quantity of oil measured and the owners thereof, and we think it fairly inferable that the corporation’s president checked the pipe-line records of the different companies with the receiver’s report; indeed, he stated that he “found their records coincided with the receiver’s.” Upon redirect examination, the witness, materially qualified this statement; but, whether he made this check or not, it could easily have been done, and any discrepancy between the pipe-line run of oil and the report of the receiver could have been readily detected.

Another exception .sought to charg’e the receiver with interest on the daily balances to his credit as receiver with the hank of which the receiver was president.

It may be first said that none of the banks in Camden, where the receivership was pending, paid interest on daily balances, -and there was. no order of the court for the receiver to so deposit funds that interest would be paid on them. It was shown that in August, 1924, after the appointment of the receiver in March of that year, a suit was broug’ht to place the holdings of Ingalls, one of the principal promoters of the corporation, in bankruptcy, and the referee appointed in that proceeding made demand on the receiver for the surrender of all the property of the corporation, and it appears that this bankruptcy proceeding was not definitely disposed of until about April 1, 1925. In November, 1924, a motion was filed to discharge the receiver, and this motion ap-. pears to have been pending until that order was finally made. The account earned no interest, and we think there was no such breach of duty as would make it equitable to charge the receiver with interest on the funds in his hands until he was directed to pay them over. Haddock v. Plymouth Coal Co., 237 Pa. 37, 85 Atl. 23; Radford v. Folsom, 55 Ia. 276, 7 N. W. 604; Crawford v. Fickey, 41 W. Va. 544, 23 S. E. 662; § 47, Tardy’s Smith on Receivers (2d ed.).

Exceptions were filed to the fees allowed the receiver and to those paid his attorneys.

It appears that Mr. Albert L. Wilson is now the attorney for the corporation, and that he has been since its organization, that his salary has at all times been a thousand dollars per month, except during- the receivership, and the attorneys for the receiver were allowed compensation at the same salary. Moreover, this compensation was not fixed upon the motion of the receiver or through any contract between him and the attorneys, but was fixed by the court upon the motion of the attorneys. As to the salary of the receiver, it may be said that he was allowed compensation by the court at the rate of $500 per month, whereas the president of the corporation, to whose duties the receiver succeeded, was paid a monthly salary of one thousand dollars.

The receiver made a bond in a surety company, for which an annual premium of $500 was charged, and an exception was filed to the claim of the receiver for credit for this item. We concur in the view of the court below that this was a proper credit to the receiver, the amount of the compensation fixed by the court being- taken into account.

An exception was filed to the allowance of an item of $30,000 paid to Powell, Smead & Knox, as assignees of Ingalls. The receiver submitted this demand to the court, and he was directed by the court to pay it. An affidavit stating that this was a just claim was filed in connection with it, made by the treasurer of the corporation, which was prepared by Mr. Wilson, who, as has been said, was the attorney for the corporation before the receivership. This demand having been paid under the order of the court, the receiver was properly given credit therefor. Chipman v. Cook, 169 Ark. 1012, 277 S. W. 37.

As has been said, the court charged the receiver with interest on the balance in his hands from the time he was ordered to pay it over until the order was obeyed, and the receiver has prayed a cross-appeal. No sufficient reason is shown for non-compliance with this order, and the receiver was therefore properly charged with interest on this item.

Upon a consideration of the entire cause we are unable to say that any finding of the court below is contrary to the preponderance of the evidence, and the decree in its entirety will therefore be affirmed.


source: Caselaw Access Project

author: Humphreys, J.

license: Public Domain

text:
    Home Life Insurance Company v. Allison.
    Opinion delivered February 25, 1929.

      T. D. Wyrme and Chas. A. Miller, for appellant.

      John T. Miller, Cole & Poindexter and S. M. Casey, for appellee.
   Humphreys, J.

This suit was instituted by appellee against appellant in the circuit court of Independence County for permanent disability benefits under clause No. 2 of an insurance policy issued by appellant to appel-lee. The clause is as follows:

“It is especially agreed that if the insured, while less than sixty years of age, and after the first year’s premiums have been paid to the company on account of this policy, shall furnish proof satisfactory to the company, while the policy is in full force and effect, that he, from any cause originating after the delivery of this policy, shall have been permanently disabled or physically or mentally incapacitated to such an extent that he, by reason of such disability or incapacity, is rendered wholly and permanently unable to engage in any occupation or perform any work for any kind of compensation of financial value, the company, upon receipt and acceptance of such proof, will, by indorsement hereon, waive the payment of any premium or premiums that may become payable thereafter under this policy, except the premiums for double indemnity benefits. (2) If such disability was sustained as above described and before the insured attained the age of sixty years, the company -will pay to the life beneficiary the sum of ten dollars for each thousand dollars of the sum herein described as the sum insured, and will pay the same sum on the same day of every month thereafter as long as the policy remains in force.”

In addition to setting out the substance of the contract in the complaint, it was alleged that on the 15 th day of January, 1926, appellee was taken sick with a serious disease which totally disabled him from engaging in any occupation and rendered him unable to perform his duties as a school-teacher or automobile merchant, which were occupations he had been engaged in; that such disability was permanent, and that he furnished proof to the company of such disability; that he demanded payment under said disability clause, and the payment was refused. The prayer of the complaint was for one hundred dollars per month from the 15th day of January, 1926, to date of judgment, together with 12 per cent, penalty and a reasonable attorney’s fee.

A number of defenses were interposed to the alleged cause of action, but all were withdrawn except the defense that the cause of the disability complained of antedated the insurance policy by a period of seven or eight months.

The cause was tried to a jury on the 5th of June, 1928, upon the pleadings and testimony, at the conclusion of which each party requested a peremptory instruction. The court refused to instruct a verdict for appellant, over its objection and exception, and instructed a verdict for appellee in the sum of one hundred dollars per month from January 16,1926, to the date of the trial. Upon the return of the verdict by the jury the court rendered a judgment in accordance therewith, and for an additional sum of three hundred and sixty dollars, being 12 per cent, statutory penalty, and an attorney’s fee of five hundred dollars, from which is this appeal.

The facts responsive to the issue involved on this appeal are in substance as follows: In February, 1925, appellee concluded from certain symptoms, such as a cold, aching pains and a slight temperature, that he had “flu.” He was ill about a week, continued to teach school, had no attending physician, but treated himself. On June 20 following he applied for insurance with appellant, and during his medical examination informed appellant’s examining physician that he had “flu” in February preceding. The physician questioned him closely relative to the symptoms, the length of time he was ill, whether he went to bed, whether he continued to teach, etc. After having answered truthfully as to all questions propounded to him, the physician told appel-lee he was mistaken about having “flu,” and recommended him as an insurable risk to appellant, who issued a ten-thoúsand-dollar policy to him in September following, containing the permanent disability clause set out above. At the time of the application and on the day the policy was issued appellee was apparently sound in mind and body, and thought himself a well man. He continued to teach and work in the automobile business until January 16,1926, at which time he was stricken with a severe illness, diagnosed as “sleeping sickness,” which permanently disabled him. He was placed under the care of Hr. J. L. Green and his assistant, Hr. George B. Fletcher, of Hot Springs, both of whom testified that they were sure that appellee’s disease was due to the attack of “flu” he had in February, 1925; but both agreed that the medical profession did not recognize the beginning of sleeping sickness, and were floundering for the real cause thereof.

Appellant contends for a reversal of the judgment because, in the opinions of the eminent physicians, Hoc-tors Green and Fletcher, appellee’s disease was attributable to the attack of “flu” he had had in 1925, and which antedated the issuance of the policy, and was therefore not covered by the disability clause therein. In support of this contention, appellant interprets the disability clause as meaning that, if appellee’s disease originated from a cause antedating the delivery of the policy, it is exempt from liability thereunder. This would be indeed a very narrow construction to give the language used, and the construction would he more favorable to the insurer than to the insured. Appellant limited its liability in the disability paragraph to any permanent disability “from any cause originating after the delivery of the policy.” We think the word “cause” was used in the clause in the sense of “illness” or “disease,” and meant, in the 'connection used, that appellant should be responsible for permanent disability resulting from an illness or disease originating after the delivery of the policy. Certainly the parties did not contract with reference to latent germs or seeds of disease or illness existing in the body prior to the delivery of the policy. We think that the parties contracted with reference to' diseases or illnesses which should originate after delivery of the policy.

Ño error appearing, the judgment is affirmed.


text:
    Schaer v. Little Rock.
    Opinion delivered February 25, 1929.

      R. P. Taylor, for appellant.

      W. W. Shepherd and W. R. Donham, for appellee.
   Humphreys, J.

This is a suit in mandamus 'by appellants to compel appellees to pass an ordinance creating a street improvement district out of certain territory within the city of Little Boclc.

Appellants are property owners within the proposed district, and petitioned the city council of Little Book, under § 5649 of Crawford & Moses’ Digest, to lay off the territory described in their petition into a street improve^ ment district, which the city council declined to do, after hearing testimony introduced for and against the creation of the district. The section of the Digest referred to is as follows:

“When any ten owners of real property in any such city, or incorporated town, or any portion thereof, shall petition the city or town council to take steps toward making of any such local improvement, it shall be the duty of the council to at once lay off the whole city or town, if the whole of the desired improvement be general and local in its nature to said city or town, or the portion thereof mentioned in the petition, if it be limited to a part of said’ city or town only, into one or more improvement districts, designating the boundaries of such district so that it may be easily distinguished; and each district, if more than one, shall be designated by number and by the object of the proposed improvement. ”

The proceeding in mandamus was submitted to the trial court sitting as a jury, which resulted in a dismissal of appellants’ complaint upon the sole ground that the city council was vested by said section of the Digest with discretionary power to determine whether the first or initial petition sought to create and establish a local improvement, and that the testimony failed to reflect a demonstrable abuse of its discretion.

An appeal has been duly prosecuted to this court from the .judgment dismissing appellants’ complaint, in order to determine whether the section quoted is mandatory relative to the passage of an ordinance creating an improvement district, upon the presentation of a petition signed by ten resident property owners within the territory described therein, or whether discretionary power is vested in the council by said section to grant or refuse the petition, if dependent upon the singleness and unity of the proposed improvement and whether the property described would be benefited. According to our decisions, the passage of an ordinance creating an improvement district is a determination of the singleness and unity of the proposed improvement and that the territory embraced therein will be specially benefited, which becomes conclusive except for fraud or demonstrable mistake. Paving District No. 36 v. Little, 170 Ark. 1160, 282 S. W. 971. The fact that these issues are determinable at all by the city council, according to our decisions, is an adjudication that the section of the statute involved confers discretionary power upon the city council. The meaning of the section, however, is not left in doubt by our decisions. The section in question was directly before the court for construction in the case of Little Rock v. Katzenstein, 52 Ark. 107, 12 S. W. 198. In that case Mr. Justice SaNdels, speaking for the court, said:

“The General Assembly, in the exercise of well-recognized constitutional power, imposed the duty of forming improvement districts, and defining their boundaries, upon the various city councils. The city council is invested with discretion, in this behalf, necessary to a just performance of the duty, and, when it has acted, the property included by it in any district is, prima facie, adjoining the locality to be affected.”

That discretion was invested in the city council to grant or refuse the petition to create an original improvement district was recognized by this court in the case of Little Rock v. Boullioun, 171 Ark. 245, 284 S. W. 745, wherein the section involved in this case was distinguished from the statute authorizing annexation of territory to an improvement district already established. After calling attention to the difference in the language of the two statutes, the court said:

“The validity of the organization of the original district (Street Improvement District No. 349) and the proceedings thereunder is not involved in the present litigation, and the only controversy arises as to the present attempt to make an annexation thereto. It is unnecessary therefore to determine in this case the extent and full effect of the discretion of a city council in creating or refusing to create an original district, and to what extent,, if any, the courts will disturb that discretion. What we have to deal with now is the effect of the action of the city council in refusing to proceed with the annexation.”

We are of the opinion that it was never intended by the statute in question to preclude property owners in the proposed improvement district from contesting the unity and singleness thereof and whether especially benefited, upon the filing of the initial petition by ten resident property owners therein requesting the formation of a district. Otherwise the protesting property owners, although largely in the majority, would be bound by the request of the ten property owners, unless they could show fraud or demonstrable mistake, or could show some jurisdictional defect in the petition.

No error appearing, the judgment is affirmed.

Mr. Justice Smith dissents.


author: Kirby, J.,

text:
    Boddy v. Thompson.
    Opinion delivered February 25, 1929.

      J. O. Livesay and Lake, Lake & Carlton, for appellant.

      Otis Gilleylan and Shaver, Shaver & Williams, for appellee Thompson.

      Wm. S. Atkins, for appellee Farnsworth-Evans Company.
   Kirby, J.,

(after stating the facts). There are numerous assignments of error, a few of which only are insisted upon here, and fewer still necessary to he considered under our determination of the matters in question.

The undisputed testimony shows that the replevin suits were brought for the property in an attempt to foreclose the mortgage thereon, under the terms of which was still due the appellant from Thompson, the mortgagor, $15,858.74. The jury found the issue in favor of Thompson, the mortgagor, fixing the value of the property replevined at the amount for which it was sold by the mortgagee, $5,298.30, and allowed $1,000 damages for the detention thereof. This was evidently done under its finding" that appellant had breached his agreement to lease his plantation to Thompson for the year 1928 and extend the time for the payment of the balance due under the mortgage accordingly, and, as already said, there is some substantial testimony in support of this finding, which cannot therefore be disturbed, without regard to the weight of the testimony thereon.

There is no merit in appellant’s contention that the court erred in refusing to give his requested instruction No. 1, relative to the alleged oral contract for the rent of the place for the year 1928 being within the statute of frauds. It is true such oral contract was made in December, 1927, before, but it was for the lease of the place for the year 1928. An oral contract for the lease of lands for one year, to commence at a date subsequent to the making thereof, is not within the statute of frauds. Alexander-Amberg Co. v. Hollis, 115 Ark. 589, 171 S. W. 915.

Neither could the entry into an entirely new contract by the parties for the lease of the lands for another year be regarded as without consideration, under the circumstances, even though appellee made payment of $2,800 of an indebtedness which he was. already bound for in consideration thereof. If appellant derived no profit from the agreement, it would suffice if appellee, to whom the promise was made, suffered some detriment or disadvantage on account of it, which appears to have been the case. Morgan v. Shackleford, 174 Ark. 341, 295 S. W. 46; Nothwang v. Harrison, 126 Ark. 548, 191 S. W. 2; Green v. Hollingshead, 172 Ark. 578, 290 S. W. 51; Engleman v. Brisco, 172 Ark. 1088, 291 S. W. 795.

The court erred, however, in disregarding the undisputed testimony in the case and appellant’s, prayer for a judgment for the balance conceded to be due under his mortgage, which he was entitled to recover under the pleadings and prayer therefor, less any amount to which appellee could have shown himself entitled, under his claim to the right of possession of the property and damages for the detention thereof. The jury has found such amount to be as already set out, and the court should have entered judgment for appellant for the amount of the balance of the appellee’s indebtedness to him under the mortgage, less the amount found to be due appellee for the value- of the property replevined and the damages for its unlawful detention. Brunswick-Balke-Collender v. Culberson, 178 Ark. 957, 12 S. W. (2d) 903.

The judgment must accordingly be reversed, and, the case having been fully developed, judgment will be rendered here in appellant’s favor for said balance due, in accordance with this opinion. It is so ordered.

In the case against appellee Farnsworth-Evans Company, as already stated, there was substantial testimony supporting the jury’s finding that Thompson was authorized to make the sale of the cotton. Neither is there any merit in appellant’s contention that the court erred in giving appellee’s requested instruction No. 8, as follows:

“You are instructed that, in arriving at whether or not plaintiff authorized or consented for Thompson to sell the cotton from plaintiff’s farm, you may take into consideration all the facts and circumstances in evidence, including the conduct, acts and statements of the parties had and made in reference thereto. ’ ’

In Beekman Lumber Company v. Kittrell, 80 Ark. 228, 96 S. W. 988, the court said:

“It is true that, in an action against principal, the declarations or admissions, of the agent are not competent to prove the agency; hut this rule does not refer to the testimony of the agent, hut to his unsworn declarations. An agency may he established by the testimony of an agent, as well as that of any other witness who has knowledge of the facts.”

See also Ayer-Lord Tie Company v. Young, 90 Ark. 106, 117 S. W. 1080; Concordia Ins. Co. v. Mitchell, 122 Ark. 357, 183 S. W. 770; Pine Bluf Heading Co. v. Bock, 163 Ark. 237, 259 S. W. 408; Oil City Iron Works v. Bradley, 171 Ark. 45, 283 S. W. 362; Southern Bauxite Co. v. Brown-Pearson Co., 172 Ark. 117, 288 S. W. 377; General Motors v. Salter, 172 Ark. 691, 290 S. W. 584.

Neither was error committed in striking out of appellant’s requested instruction No. 1 the words “and received the proceeds from such sale,” the instruction having told the jury that the value of the cotton may be recovered by. the plaintiff, unless he authorized Thompson to sell the same and received the proceeds from such sale. The court told the jury, in appellee’s requested instruction No. 1, that if they found from a preponderance of the evidence that the plaintiff “authorized and consented for the defendant Thompson to market and collect for the cotton, they would find for the defendant. ’ ’ This instruction is not in conflict with the instructions complained of, given as amended, and, if so, could not have been prejudicial to appellant.

If Thompson had the authority to sell the cotton of which he was in possession, as the jury found he had, it necessarily included the right to receive the sale price, regardless of his appropriation thereof. There is no question here of the indorsement ¡by Thompson of a check drawn in favor of appellant, given in payment for the cotton, and the authorities relied upon in such case are not in point.

We find no reversible error in the record in this case, and the judgment will he affirmed. It is. so ordered.


author: Mehaffy, J.

text:
    Carter v. Cain.
    Opinion delivered February 25, 1929.

      Boss Mathis, W. J. Dimgan and J. F. Summers, for appellant.

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

The appellants, who are taxpayers and residents of Woodruff 'County, began this suit in the chancery court against W. R. Cain, county judge, ft. B. Keating, W. W. Rainey, Neudy Arnof, A. C. McGregor and Bill Rives, alleging that 'Cain was county judge and McGregor was. the county judge-elect, and would assume the duties on January 1, 1929; that Bill Rives was the county clerk, and Keating, Rainey and Arnof were appointed commissioners and directed to prepare plans and let contract for the erection of a courthouse and jail at MoCrory, Arkansas; that on November 30,1928, said commissioners reported to the court that they had procured a lot and had prepared plans and specifications for a suitable courthouse and jail at MoCrory, which plans were approved by the court, and said commissioners were directed to advertise for bids and let contract for the erection of a courthouse and jail; that the commissioners had employed an architect to draw plans, and were proceeding to receive bids and let the contract; that, if not enjoined, they would let the contract and incur further expenses.

Appellants alleged that the authorization of the contract amounted to an illegal exaction from the taxpayers of the county, and that the appropriation for the erection of said courthouse and jail and all the proceedings were void, for the reason that the appropriation of $5,000 per annum exceeded the revenue available from all sources after the payment of the necessary governmental expenses of the county, and that it was in violation of Amendment No. 11 of the Constitution of the State of Arkansas.

The complaint then shows the revenue and expenditures and probable revenue for the future and necessary expenses for the future, and alleges that they have no adequate remedy at law, and prays for an injunction preventing the issuing of any warrants or the payment of any claims, and to prevent the letting of the contract or the incurring any other expenses.

Constitutional Amendment No. 11 has been before this court several times, but Amendment No. 17, also involved here, was adopted by the people at the general election November 6, 1928, and has never been before this court for interpretation or construction. Amendment No. 17 reads as follows:

“Section 1. The power and right is hereby vested in the qualified electors of each respective county in this State, by a majority of said electors voting on-the question, to authorize the construction, reconstruction or extension of any county courthouse or county jail, and to authorize the levy of a tax not to exceed one-half of one per cent, on the dollar of the valuation of all properties in such county subject to taxation, to defray the cost and expenses thereof or to take up any indebtedness existing at the time of the adoption hereof, incurred in building, constructing or extending any county courthouse or jail.
“ Section 2. The county court of any county may, ¡by proper order, duly entered of record, determine whether or not the necessity for any such construction, reconstruction, or extension exists, and, when such necessity is found to exist, said county court shall cause to be made and prepared such plans, specifications or estimates of cost of such contemplated improvements as may be proper for a reasonable understanding of the nature, extent and approximate cost thereof, and may employ an architect for said purpose, which said plans, specifications and estimates shall be filed in the office of the county clerk of such county, and remain and be held subject to the inspection of any and all persons interested.
“Section 3. Any and all such plans, specifications and estimates may, when considered, be rejected by the county court, and new ones, or alterations of the original ones, ordered to be made, and when such preliminary set of such plans, specifications and estimates is filed and shall meet the approval of said county court, an order approving the same shall be entered of record, and the court shall order and direct the question of the construction of such building or extension be submitted to the qualified electors of such county in the next general election held thereafter; provided, however, that if no general election for county and State officers will, under the law, be held within one year of the making of the said order, then the county court may, by order of record, call a special election in such county, to be held not less than 30 days nor more than 60 days thereafter; and shall name the date therefor. Such special election shall in all other respects be held as is now or hereafter may be provided by law for the holding and conducting of general elections, and it shall be and it is hereby made the duty of the sheriff of such county, by a proclamation duly made and published for the time and as provided by law, to give notice of the proper time and place of holding such election. ’ ’

Section 4 provides the manner of holding the election and the duty of the election officers, and further provides that, if a majority votes for the improvement, the county court shall make an order showing the total vote for and total vote against such. It also provides that more than one- building or improvement may he embodied in the proceedings, but each must be described so as to indicate to the electors what he is voting on, and there must appear on the .ballot “For construction’ and “Against construction;” and also appear on the ballot “For building tax,” and “Against building tax.”

Section 5 provides that, if a majority vote for the building and the tax, then the levying court may levy, in addition to all other taxes now authorized by law, a special building tax, not to exceed one-half of one per cent, on the dollar of the assessed valuation of the property, to pay for such improvements, or to provide a sinking fund for such purpose. This section also provides that, when the levy is once made, it shall continue in force from year to year and he extended on the taxhooks and collected until sufficient funds are collected to pay the cost of the improvement, or any bonds, notes, or interest thereon.

Section 6 provides that, when the tax has been voted and the amount levied, the county court may issue and sell interest-bearing negotiable bonds or notes, bearing interest not to exceed five per cent., to mature at such times as may be determined by the court or judge, and sell the same in such manner and upon such condition as the court may by order deem proper for the purpose of raising-funds, etc. It also provides that the bonds shall not be sold for less than par or face value, and they are to be secured by the special tax levied for the purpose. After, this, is done, the amendment, in § 7, provides that the county court or the judge thereof shall proceed with the construction of such improvement.

It will be observed that the amendment was adopted on November 6, 1928, and the proceedings had by the county court and commissioners, for the purpose of building a courthouse and jail were all had at a later date. That is, after the amendment was in effect.

There is no dispute about the amendment being in effect at the time the proceedings begun, but the appellee contends that, when the building of a courthouse or jail is under consideration, the county court may adopt either one of two methods. It is insisted that, if the revenues of the county will permit, the court can order the improvement made by making appropriations and spreading same over a period of years; but that, if the revenues of the county will not justify this procedure, then an election may be called for the purpose of voting on the improvement and tax. In other words, it is insisted that, since the adoption of Amendment No. 17, a county has two distinct and unrelated methods of building a courthouse; one plan with additional taxes, the other without additional taxes. And it is insisted that there is nothing in Amendment No. 17 that repeals any powers conferred upon a county court or the quorum court by the Constitution before the adoption of this amendment.

The rule by which amendments to the Constitution are to be construed was stated by this court in Hodges v. Dawdy, 104 Ark. 583, 140 S. W. 656. The court said in that case, in construing the constitutional amendment known as the initiative and referendum:

“The amendment being the last expression of the popular will in shaping the organic laws of the State, all provisions of the Constitution which are necessarily repugnant thereto must, of course, yield, and all others remain in force. It is simply fitted into the existing Constitution, the same as any other amendment, displacing only such provisions as are found to be inconsistent with it. Like any other new enactment, it is a ‘fresh drop added to the yielding mass of the prior law, to be mingled by interpretation with it.’ In the construction of its terms, and in the determination of its scope and effect, the court should follow the settled rules of interpretation.”.

The conrt in the above case also said: “The rules of construction applicable to statutes ordinarily apply with equal force to constitutions or amendments thereof, though some courts hold to even more restricted rules in the construction of provisions of the organic law.”

A cardinal rule in dealing' with written instruments is that they are to receive an unvarying interpretation, and that their practical construction is to be uniform. A Constitution is not to be made to mean one thing at one time and another at some subsequent time when the civ eumstanees may have so changed as perhaps to make a different rule in the case seean desirable. Cooley’s Constitutional Limitations, vol. 1, 124.

It may be that the circumstances in the instant ease are such as to make it very much more desirable to erect the courthouse and jail under the old provisions of the Constitution without doing the things required by Amendment No. 17, but constitutions are framed with special reference to the varying moods of public opinion and with a view to putting the fundamentals of government beyond their control. The object of construing a provision of the Constitution is to ascertain the intent and to give effect to the intent of the people in adopting it. The intent is generally to be found in the instrument itself. It is to be presumed that language has been employed with sufficient precision to convey the intent of the people, and, unless an examination demonstrates that such language has not been employed, nothing remains to be done except to enforce the provision. In construing an amendment to a Constitution, such amendment must, if possible, be harmonized with all the other provisions of the Constitution. Wherever this cannot be done, however, the amendment must prevail.

The fundamental purpose in construing a constitutional provision is to ascertain and give effect to the intent of the framers and of the people who adopt it. The court therefore should constantly keep in mind the ob-¡jeet soxiglit to be accomplished by its adoption, and the evils, if any, sought to be prevented or remedied. 12 C. J. 700.

In ascertaining* the intention of the people who adopted the amendment, we may and should look to the history of the times as well as the provisions of the Constitution prior to the adoption of the amendment, ascertain what the mischief was to be remedied, and, in consideration of all these thing's, arrive at the intention of the people in adopting the amendment.

Some years ago the people adopted what is known as the initiative and referendum amendment. That, among other things, provided that the people of each municipality, each county and the State, reserve to themselves the power to propose laws and amendments to the Constitution, etc. In construing the initiative and referendum amendment, this court said:

“It is evident that the words ‘each municipality’ and ‘each county’ were inaptly thrust into the amendment as originally framed in a way that they express nothing and mean nothing, unless they may be treated merely as words of emphasis. * * * The amendment, construing its language as we do, was adopted solely for the purpose of reserving to the people of the State the sovereign power of direct legislation by the process of the initiative and referendum upon the conditions named, and no additional power was conferred separately upon the people of municipalities and counties.” Hodges v. Dawdy, 104 Ark. 583, 149 S. W. 656.

The court in the same case also held that, while the people reserve the right to themselves to initiate constitutional amendments, the old provision of the Constitution limiting the number of amendments that might be submitted by the Legislature to three was still in effect. And, although the people might initiate constitutional amendments, they could not do so if the Legislature had already submitted three. This construction of the Constitution gave it a meaning evidently different from what the people thought it meant, and they 'therefore initiated another amendment and adopted it for the purpose of enabling them to submit as many amendments as they wished, and also to provide for local legislation by municipalities and counties. The people then adopted Amendment No. 11, which provides:

“The fiscal affairs of counties, cities and incorporated towns shall be conducted on a sound financial basis, and no county court or levying board or agent of any county shall make or authorize any contract or make any allowance for any purpose whatsoever in excess of the revenue from all sources for the fiscal year in which said contract or allowance is made; nor shall any county judge, county clerk or any other county officer sign or issue any scrip, warrant, or make any allowance in excess of the revenue from all sources for the current fiscal year; nor shall any city council, board of aldermen, board of public affairs, or commissioners of any city of the first or second class, or any incorporated town, enter into any contract or make any allowance for any purpose whatsoever, or authorize the issuance of any contract or warrant, scrip or other evidence of indebtedness, in excess of the revenue for such city or town for the current fiscal year; nor shall any mayor, city clerk or recorder, or any other officer or officers, however designated, of any city of the first or second class or incorporated town, sign or issue any scrip, warrant or other certificate of indebtedness in excess of the revenue from all sources for the current fiscal year. ’ ’

It is unnecessary to quote other portions of Amendment No. 11. This amendment was adopted, as was. said in the case construing it, to enable municipalities and counties to pay their indebtedness and to get on a cash basis, and also- to prevent counties, cities -and towns from accumulating a floating debt which could not be paid by the total revenues of the fiscal year. Kirk v. High, 169 Ark. 152, 273 S. W. 389, 41 A. L. R. 782.

The court also held, however, in the above ease, that that did not mean that courthouses or jails could not be erected unless the total cost of the construction can be paid, out of the revenues of a single year. In other words, the court held that, while the purpose in adopting the amendment was to prevent counties and towns from going in debt, yet it did not prohibit them from going in debt for building- courthouses and .jails. They could provide for annual payments, and this was not prohibited by Amendment No. 11.

Since the case above referred to, a number of other cases have been decided by this court involving Amendment No. 11. See Polk County v. Mena Star Co., 175 Art. 76, 298 S. W. 1002, and authorities there cited.

After the court had construed this Amendment No. 11 to mean that a county could go in debt for courthouses and jails, the people then adopted Amendment No. 17, vesting the authority and right to construct courthouses and jails and to levy taxes to pay for them, in the qualified electors of the county. Amendment No. 17 was evidently adopted for the very purpose of meeting* the decision of this Gourt and accomplishing* what they thought was accomplished by Amendment No. 11, when adopted. That is, to prevent counties from going in debt, and provide a method for building and paying for courthouses and jails. But it is insisted that there are two methods now. We do not agree to this contention. Amendment No. 17 authorizes the county court to determine the necessity of building a courthouse or jail and to have plans and specifications made, and to submit the question to the people. It is insisted that, if the county has money on hand to build the courthouse, or, rather, if they have some money and can pay it out in annual installments, then No. 17 does not apply. If they have no money, then the people may determine whether they, shall have a courthouse or jail.

In the first place, the amendment provides for submitting both questions to the electors. They shall vote for the construction or against the construction, and also vote for tax or against tax. In other words, the qualified electors are to determine whether there is to be any improvement made, and also to vote for or against a tax for the purpose of paying for the improvement. If the county had money with which to build a courthouse or jail, there would of course be no occasion to submit the question to the qualified electors as to whether they •would or would not vote a tax. No tax would be necessary. Numbers of courthouses, have been built under Amendment No. 11, as construed by this court, and indebtedness has been created for the purpose of paying for these courthouses, and Amendment No. 17 provides for paying that debt by special taxation. It provides for the levy of the tax not only to build the improvement voted for, when improvement is voted for, but it also provides that they may vote for a tax to take up any indebtedness existing at the time of the adoption of the amendment, incurred in building, constructing or extending any courthouse or jail. Again, the people used the word “vested.” The first sentence of the amendment is: “The power and right is hereby vested in the qualified electors,” etc.

In construing a Constitution or a constitutional amendment, it is the duty of the court to ascertain the meaning, and they must therefore ascertain the natural signification of the words used. And words in a constitutional amendment are to be interpreted and understood in their most natural and obvious meaning. In other words, they are to construe them to mean the same that they mean in the other provisions of the Constitution and their meaning generally when used in constitutions or amendments.

The Constitution of the United States provides that all legislative powers, shall be vested in a Congress of the United States; that the executive power shall be “vested’ ’ in a President of the United States; that the judicial power shall be “vested” in one Supreme Court, etc.

Our own Constitution provides that the legislative powers shall be “vested” in a General Assembly, and this was amended by reserving the right to the people to initiate or refer measures. Our Constitution also provides that the supreme executive power of this State shall fee “vested” in a chief magistrate, and that the judicial power of the State shall he “vested” in the Supreme Court, in inferior courts, etc.

We think there is no doubt about the meaning o,f the word “vested.” In each of the cases referred to in the. Constitution it means the entire power, except in the case of the legislative department, where the initiative and referendum amendment reserved certain powers to the people.

Webster defines “vested” as follows: “That has become a complete and consummated right; that has taken effect, as an immediate fixed right to present or future enjoyment.” That is the sense in which it has been used both in the 'Constitution of the United States and the Constitution of the State of Arkansas, and the sense that it is used in Amendment No. IT. Moreover, the history of the times and initiation and adoption of amendments, we think, clearly show not only that the people reserve to themselves the right to do these things, but that they intended, in the adoption of Amendment No. 17, to cure the evil that they thought existed because of the construction put on No. 11 by the courts.

If a county court decides that a courthouse or jail is necessary (and this right to decide is in the county court), it may then prepare the plans and specifications and do the things mentioned in Amendment No. 17, and call an election and submit to the qualified electors of the county the questions decided upon. That is, if a county wishes to vote a tax to pay for a courthouse or jail already built, the county court can submit that question to them, and they can then vote for or against tax. If the county court decides that a courthouse or jail should be constructed or reconstructed, that question is submitted to the qualified electors, and they vote for or against the improvement.

If the county had money on hand to build the courthouse, there would probably be no necessity for submitting any question to them except the question as to whether the improvement should be made. If a courthouse is needed, then the qualified electors vote on'the question, and also vote for or against tax. This is now the only method for building’ courthouses or jails.

The decree of the chancery court is therefore reversed, and remanded with directions to issue the injunction prayed for in the complaint. .


author: McHaney, J.

text:
    Board of Commissioners of Buffo Drainage District No. 7 v. Arkansas County.
    Opinion delivered February 25, 1929.

      B. I). Basco ahd J. M. Brice, for appellant.

      John L. Ingram and T. J. Moher, for appellee.
   McHaney, J.

Buffo Drainage District No. 7 of Arkansas County was organized on the 29th day of May, 1914, under act 279 of the Acts of 1909 and the amendments thereto, §§ 3-607 et seq., C. & M. Digest, commonly referred to as the alternative system of organizing drainage districts, hy proper orders of the county court. Said district has been functioning since its organization, having constructed the improvement contemplated, by issuing bonds, and has been collecting assessments against the property in said district and paying off the bonds and interest coupons as they matured. When the assessment of benefits was made the county roads in the district were included, and were assessed in total benefits of $1,440. The county paid these assessed benefits in annual installments until 1927, when the county judge of said county refused to recognize the installment due in that year as a valid claim against the comity. A claim was presented to the county court in the sum of $100.80, which the court disallowed, on the ground that there was no authority in the law for taxing or levying the assessment against the county roads. The case was tried before the county court on an agreed statement of facts, the substance of which is as above stated. And it was. further-agreed that the decision of the court in the Buffo Drainage District case should control in a number of other drainage districts in said county similarly situated.

An appeal was prosecuted to the circuit court, where the matter was heard upon the agreed statement of facts which was incorporated in the order of the county court denying the claim, and additional testimony to the effect that the county roads were greatly benefited by the construction of the improvement in the district. The case was heard by the circuit court without the intervention of a jury, and a judgment was entered dismissing the appeal. Appellant has brought the cause here for review.

Appellant seeks to sustain the assessment of benefits and the annual tax levied thereon under §§ 3579 and 3582, O. & M. Digest, and also under the decision of this court in Rolfe v. Spybuck Drainage District No. 1, 101 Ark. 29, 140 S. W. 988. With reference to the sections of the statute above mentioned, we are of the opinion that they can have no application to this controversy, as they are sections of the old drainage district law. Appellant was not organized under this law, but, as heretofore stated, under the alternative system, § 3607 et seq. By § 3613, C. & M. Digest, which provides, among other things, with reference to the assessment of benefits and damages by the commissioners, that: ‘ ‘ Their assessment shall embrace, not merely the land, but all public and corporate roads, railroads, tramroads and other improvements on lands that will be benefited by the drainage system. ’ ’ We hardly think that language can he construed so as to authorize the commissioners to assess benefits against county roads. Section 3611 defines real property, wherever used in the act, to have the same meaning “as when used in the act providing for the collection of State and county revenues, and shall embrace all railroads and tramroads within the district.” The definition of real property did not include county roads.

Furthermore, the act failed to provide any method of enforcing the collection of taxes on the assessment of benefits against the county roads. It does provide for the enforcement of collection of the tax on the better-ments assessed against other real property, and provides that the proceedings to enforce such collection shall be in the nature of a proceeding in rem, “and such judgment shall be enforced wholly against such lands, and not against any other property or estate of said defendant.” 'Section 3631, 0. & M. Digest. It could .hardly be contended that the drainage district could sell the county roads by such a proceeding, and the act specifically prohibits faking any personal judgment against the landowner, and none could he had against the county.

We do not consider that the case of Rolfe v. Spybuck Drainage District, supra, is authority for appellants’ contention. That was a proceeding by mandamus by the drainage district for a judgment to compel the county judg’e of St. Francis County to order the clerk to issue a warrant for the payment of the tax on the assessment of benefits accruing to the public roads 'of that county by the construction of a ditch, and the principal question decided in that case was that an assessment of benefits against the public roads in a drainage district, made by viewers and approved by the county court, did not amount to a judgment against the county, but might be the basis o,f a ¡claim against the county which should be presented to the county court for allowance, and that mandamus would not lie to compel the issuance of a warrant. The question as to whether the county was liable for the tax on the betterments assessed, or whether there was any authority in law for the assessment of benefits against the public roads, does not seem to bave been presented to the court, and was not decided in that case. Moreover, that was a case arising under the old system of organizing drainage districts, and not under the alternative system. The decision in that case relates to a wholly different proposition, and has no bearing on the issues presented in this case.

We do not find it necessary to decide whether the authority exists in the old drainage district law to assess benefits against the county’s roads. We do decide, however, that no authority exists under the alternative system for the assessing of benefits, against the county’s beads, or the collection of a tax thereon.

The judgment is accordingly affirmed.


author: Hart, C. J.

text:
    Crews v. State.
    Opinion delivered March 4, 1929.

      0. A. Graves and L. F. Monroe, for appellant.

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

Jim Crews was indicted for murder in the first degree, and convicted of murder in the second degree by a petit jury, which fixed his punishment at fifteen years in the State Penitentiary.

It is first insisted that the judgment should be reversed because the court erred in not sustaining a demurrer to the indictment on the ground that it was defective in charging the offense in the same count to have been committed by different means or manner. The indictment charges the defendant with murder in the first degree by killing Dug Rowls by shooting him with a pistol, and by stomping him in the face and on the head and in the side, and by crushing his skull by means of said stomping. Some offenses are of a nature to be committed by one or another of several different ways or by different means. In such a case both means or ways may be charged in one count of an indictment. Proof that any of the means were, used proves the offense, and proof that all the means were used proves no more. Franklin v. State, 153 Ark. 536, 240 S. W. 708.

The next assignment of error is that the evidence is not legally sufficient to support the verdict. According to the evidence for the State, J. R. Crews killed Dug Rowls about seven o’clock in the evening on May 19, 1928, in the Rocky Mound Community in Hempstead County, Arkansas. Rowls and wife and thirteen-year-old son were making a crop on the farm of J. R. Crews, and lived in the house with him. The house had three rooms on one side of the hall, in which Rowls and his family lived, and two rooms on the other side of the hall, in which Crews lived. W. M. Stuckey, aged sixty-nine, lived in a tent about one hundred yards north of the Crews house. On the afternoon of the killing Rowls worked on a cultivator awhile, and then went hunting. Crews and Stuckey went to Hope. They got back about six o’clock in the evening, and Stuckey stopped at his tent. 'Crews went on to the house, and began talking with Rowls in an ordinary tone of voice. Mrs. Rowls was in the kitchen getting supper, and heard them talking. They began to talk louder, and she went out into the hall to see what was the trouble. Rowls started to turn to go back towards the kitchen, and Crews drew a pistol from his pocket, and shot him in the breast. Rowls fell on a trunk in the hall, and could not get up. Crews then grabbed him, and said that he was going to kill him. Mrs. Rowls tried to separate them, but could not do it. She then called Stuckey, who came into the house. When Stuckey came in, he pulled something out of his pocket and hit Rowls over the head. Stuckey and Crews kept beating Rowls until he was about dead, and then dragged him into his bedroom and threw him on the bed. They kicked and stomped Rowls until he was dead, and then Crews shot him in the head. Crews and Stuckey then threatened to kill Mrs. Rowls and her little son if they did not testify that Crews acted in self-defense in killing Rowls. They told her what to say when the officers came. The above was substantially the evidence of Mrs. Dug Rowls, which was corroborated by her thirteen-year-old son.

On cross-examination, the witness testified that her husband and the defendant were good friends before the killing. She said that she did not tell the officers the truth about the killing, because she was afraid to. She admitted telling them that her husband shot the defendant first with a shotgun. Her little son also claimed that he had been threatened into making the same statement to the officers about the killing. He testified that he heard nothing before the first shot was fired, and said that when he and his mother went to the kitchen door, the defendant had deceased in his arms, trying to shoot him in the head with a pistol. The deceased had nothing in his hands. When his mother called Stuckey to help them, the latter came, and helped the defendant in stomping and beating the'deceased. The deceased was lying on the floor, with his feet under the bed, when the defendant shot him through the head. After they had killed the deceased, they commenced planning how they would show that the deceased had a shotgun and that the defendant killed him because the deceased was endeavoring to shoot him with the shotgun.

There was no proof that the walls or ceiling of the house showed that a shotgun had been fired.

According to the testimony of the defendant and of Stuckey, the deceased first fired at the defendant with a shotgun, and the defendant killed the deceased in his own self-defense. It is not necessary to abstract the evidence adduced 'by the defendant, because, under our rules of practice, the jury was the judge of the credibility of the witnesses, and, if it believed the evidence for the State, was fully warranted in finding the defendant guilty. Fields v. State, 154 Ark. 188, 241 S. W. 901; Williams v. State, 162 Ark. 285, 258 S. W. 386; and Stepp v. State, 170 Ark. 1061, 282 S. W. 684.

The next assignment of error is that the court erred in refusing to allow the defendant to testify as to some trouble which had occurred between him and the deceased about twenty years before the killing. The defendant offered to testify that he had a difficulty with the deceased at that time, in which the deceased hit him over the head with some brass knucks, and also shot at him twice. We do not think the court erred in excluding this testimony from the jury. It occurred twenty years before the killing, and the undisputed evidence in the record shows that the deceased and the defendant were on good terms at the time of the killing. They lived in the same house, and were friendly. Uncommunicated threats are admissible in a homicide case as tending to show who was the aggressor when that point is in doubt, but when they are too remote in point of time to have any bearing on that question, they are not admissible. Turner v. State, 128 Ark. 525, 195 S. W. 5; Cochrell v. State, 148 Ark. 256, 229 S. W. 733; and Crafford v. State, 169 Ark. 225, 273 S. W. 13.

The next assignment of error is that the court erred in giving instruction No. 9, which reads as follows:

‘ ‘ The killing being* proved, the burden of proving circumstances of mitigation that justify or excuse the homicide shall devolve upon the accused, unless, by proof on the part of the prosecution, it is sufficiently manifest that the offense only amounted to manslaughter, or that the accused was justified or excused in committing the homicide, provided you find from the evidence on the whole case, beyond a reasonable doubt, that the defendant is guilty.”

Counsel for the defendant claims that the instruction as given places the burden in the whole case on the defendant. We do not think so. The undisputed evidence in the record shows that the defendant killed the deceased. The defendant, in his own testimony, admitted killing him, and the only 'conflict is as to who was the aggressor. Other instructions were given by the court, in which the jury was told that it devolves upon the State to prove the guilt of the defendant beyond a reasonable doubt. All of the instructions are to be read together, and we cannot see how any jury of intelligent men could have been misled by the giving of the instruction complained of. The instruction is substantially in the language of our statute on the subject, and is similar to one approved in other cases by this court. Smith v. State, 139 Ark. 356, 213 S. W. 403; Maddox v. State, 155 Ark. 20, 243 S. W. 853; and Beeson v. State, 166 Ark. 142, 265 S. W. 956.

The next assignment of error is that the court erred in giving instruction No. 10, which reads as follows:

“In ordinary oases of one person killing another in self-defense it must appear to the defendant, acting without fault or carelessness on'his part, that the danger was so urgent and pressing that, in order to save his own life, or prevent his receiving great bodily harm or injury, the killing was necessary; and it must appear also that the person killed was the assailant, or that the slayer had really and in good faith endeavored to decline any further contest before the mortal blow was given. ’ ’

It is claimed that the instruction is erroneous in not continuing with the words, “provided the slayer brought on the killing by voluntarily entering into it.” We do not think this clause was necessary. The instruction deals with the appearance of danger to the defendant, and then tells the jury that it must also appear that the person killed was the assailant, or that the slayer had really in good faith endeavored to decline any further contest before the mortal blow was given. The concluding part of the instruction makes it the duty of the defendant, if he was the aggressor in the difficulty, to endeavor in good faith to retire from the contest before he could invoke the law of self-defense. On the other hand, it plainly gives him the right to act upon the appearance of danger in killing the deceased if the latter was the assailant and continued to be the aggressor throughout the difficulty. George v. State, 148 Ark. 638, 231 S. W. 9, and Johnson v. State, 171 Ark. 203, 284 S. W. 28.

In this connection we call attention to the fact that instruction No. 11 on the part of the State reads as follows:

“If you believe from the evidence in this case, beyond a reasonable doubt, that the defendant, armed with a deadly weapon, voluntarily entered into the difficulty with the deceased, with the .felonious intent to take his life, then the defendant cannot invoke the law of self-defense, no matter how imminent the peril in which he found himself placed, unless the defendant abandoned or attempted to abandon the difficulty before the fatal shot was fired. ’ ’

This instruction immediately follows instruction No. 10, and the two instructions are so intimately connected with each other that no jury of common sense could have been misled by what the court meant. It cannot be reasonably supposed that the jury would find one way or the other without any evidence to support their finding, or that they could have misunderstood the question the court was endeavoring to submit to them.

Finally, it is insisted that the court erred in giving instruction No. 19, which reads as follows:

“You are instructed that, although you may believe that the defendant, Jim Crews, fired the first shot in necessary self-defense, still, if you believe that the second shot was fired at a time when the defendant, as a reasonably prudent person, acting on the facts and circumstances, without fault or carelessness on his part, did not honestly believe that it was necessary to further defend himself, then the defendant would be guilty of murder in the first deg’ree, or murder in the second degree, or manslaughter, provided you believe that the second shot contributed in any manner to the death of the deceased. ’ ’

The evidence on the. part of the State tended to show that the defendant fired the first shot, and that, after the first shot was fired, the defendant grabbed hold of the deceased and tried to shoot him with a pistol. Then Stuckey and the defendant stomped and beat the deceased over the head, and the defendant again shot him with a pistol. The jury was warranted in finding that this was done by the defendant at a time when the deceased was not trying to hurt him and when in no condition to do so. Hence we do not think that the court erred in giving this instruction to the jury. Lassiter v. State, 137 Ark. 273, 208 S. W. 21, and Crawford v. State, 171 Ark. 1108, 9 S. W. (2d) 800.

We have 'Carefully considered the instructions given by the court as a whole, and find that they fully and fairly submitted the -disputed issues of fact to the jury, according to the principles of law which have been repeatedly decided by this court. The matters and issues in the instructions submitted by the defendant and refused by the court were fully and correctly covered by the instructions given at the request of the State.

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


author: Smith, J.

text:
    Beck v. State ex rel. Attorney General.
    Opinion delivered March 4, 1929.

      A. B. Shafer and Lowell Taylor, for appellant.

      Ral L. Norwood, Attorney General, R. W. Apple-gate, Lovich P. Miles, Henry J. Livingston, Guy Amsler, and Chas. D. Frierson, for appellee.
   Smith, J.

Suit was filed by the Attorney General, on the relation of the State, against J. O. E. Beck and other riparian owners of lands adjacent to Horseshoe Lake, in Crittenden County, Arkansas, in which it was alleged that the defendant landowners had constructed a ditch from a bayou, referred to interchangeably 'as Jennings or Berlin Bayou, to Fish- Bayou, which was carrying and would reduce the water of Horseshoe Lake to such a level that the navigation of the lake and its fishing and hunting value would be interfered with and greatly diminished. Certain fishing and hunting clubs intervened, and enlarged upon these allegations, it being recited in their intervention that they had expended large sums of money in building club and other houses, boat docks, etc., to enable them and their guests to enjoy the sports of-hunting and fishing upon the lake, and that this right would be greatly interfered with if the defendants were not required to dam their ditch, thereby stopping the flow of water out of the lake.

Answers were filed by'the defendants, in which it was admitted that the 1-ake was a navigable stream, and had great value to the public for hunting and fishing, but it was denied that it was proposed to destroy or diminish these values. It was alleged that the defendant Beck had constructed a system of underground tile drains for his plantation, to drain the surface water from his land into the lake, which he had done and could do at the normal flood level of the lake, but it was alleged that, through the closing- up of the outlet from the lake into the Mississippi River and other outlets from the lake into the St. Francis River, the normal flood level of the lake had been raised to the point where Beck’s drainage system not only did not drain into the lake, but the water ran back the other way and made impossible the cultivation of a large quantity of Beck’s land. It was alleged also that, by reason of the increased flood level, the outer banks of the lake — which are bluff — are caving, and it was alleged by the defendant Snowden that he had lost between twenty and thirty acres of valuable land, and that he had spent four thousand dollars driving piles in an unsuccessful attempt to save the front yard of his home, which opened out upon the lake.

Defendants denied that they had dug a ditch into Horseshoe Lake, but alleged the facts to be that Jennings and Fish Bayous were natural outlets of the lake, whereby excess water was carried into the 'St. Francis River through Fifteen-Mile Bayou, and that these 'bayous had been filled up by 'Cutting’ the timber to clear the land, and by its cultivation, until they no longer served as natural drains, which they in fact were. Fish Bayou connects with the lake on the northeast side thereof, and then winds a tortuous course north of the lake to the northwest side thereof, where it connects with Jennings Bayou.

The length of Fish Bayou is twelve or fifteen miles, and it was alleged and shown that the cost of clearing it out from its mouth to its intersection with another bayou, called Caruthers Bayou, would be very great,' whereas the same results could be achieved by digging a ditch connecting Fish Bayou with Jennings Bayou, which last named drain emptied into the lake on its eastern side. This is the ditch which the landowners dug, and this proceeding was brought to require them to dam it up. This ditch begins at a point in Jennings Bayou 1,800 feet from the lake, and runs 4,400 feet to the point where it empties into Fish Bayou. The answer alleged that, by digging this ditch, defendants have accomplished the same purpose that would have been accomplished had they opened up and cleared out Fish Bayou, Defendants alleged their intention to be only to restore the flood level of the lake to its normal stage.

A description of Horseshoe Lake will be found in the cases of Barboro v. Boyle, 119 Ark. 377, 178 S. W. 378, and State ex rel. Thompson v. Parker, 132 Ark. 316, 200 S. W. 1014.

It was said in tibe Parker case, supra, that the lake was so named 'because of its shape, and that the inner bank of the lake is low and sloping, while the onter hank is high and clearly defined. An area of about a thousand acres in the bend of the horseshoe, known as Happy Jack, was flooded when the St. Francis levee was built in 1905 across the outlet which connected the lake with the Mississippi River. This levee impounded the waters, as is stated in the opinions above mentioned and in that of Parker v. Frierson, 124 Ark. 238, 187 S. W. 162 also, and resulted in raising the level of the lake about five feet.

It was the opinion of the chancellor, as is indicated by the decree from which this appeal comes, that the State had acquired, under the decisions of this court in the cases above referred to, the prescriptive right to maintain the increased level of the water of the lake, aid that the defendants were about to reduce the superficial area of the lake, and in doing this materially diminished the value of the lake to the public for hunting and fishing purposes. The court decreed that the defendants should permanently maintain >a dam or obstruction across the mouth of the ditch, and that the dam or obstruction be maintained so as to prevent at all times escape or drainage of any of the waters of Horseshoe Lake through said ditch. This appeal is from that decree.

"We have before us a large record, which we will not review, but will state only our conclusions concerning the testimony, after having carefully considered it.

The testimony on the part of the State and the intervening sportsmen is to the effect that the waters impounded by the St. Francis levee, upon its construction in 1905, overflowed Happy Jack, and that this and the adjoining similar area remained submerged until the summer of 1926, when, on account of decreased rainfall and the absence of any seepage from the Mississippi River into the lake, the water level was so lowered that Happy Jack and the adjacent areas reappeared as land, and shallow water over the Happy Jack area affords an ideal place for fish to spawn and for ducks to feed, but if the water is taken off this area it becomes valueless for that'purpose, and the value of the remainder or deep portion of the lake for hunting purposes is greatly diminished.

The testimony on the part of the landowners is to the effect that the ditch will not take off all the water from the Happy Jack area, hut that, if it does, the hunting and fishing value of the lake will not be thereby diminished.

We think the testimony, in its entirety, establishes the fact that the ditch will not reduce the water level more than two or three feet lower than it would be without the ditch, unless the ditch was deepened by the flow of the water through it, but we think the testimony clearly shows this scouring out will not occur, because the ditch does not have enough fall to accomplish that result. For the first 2,100 feet the ditch is on a one-tenth of one per cent, grade; the next 1,500’ feet is on a level grade, and for 300 feet is on a two-tenths per cent, grade, and from there to its entrance to Jennings Bayou is one-half of one-tenth per cent, grade, and the testimony of the engineers is to the effect that a ditch of this grade will not deepen.

H. N. Pharr, the chief engineer of the St. Francis Levee District, whose professional life has been spent in connection with that district, testified that, in the absence of seepage from the river into the lake, and local rainfall, the ditch would lower the water in the lake at the rate of one inch a day until the water ceased to flow through it. This being true, we think the plaintiffs are sustained in their contention that the ditch would reduce the water level to a point from which the evaporation always occurring and to be expected would further reduce the water level so that the Happy Jack area might, at some time during the year, reappear as land, and, if this were done, the value of the lake for hunting and fishing purposes would be diminished.

But it does not follow, because this is true, that the defendants have no right to dig the ditch. It must be remembered that we are considering the right to dispose of flood water®, which the testimony clearly shows has greatly damaged riparian owners. The testimony on the part of the defendant Beck.is to the effect that his plantation of 8,000 acres, under which he has 600,000 feet of tile drainage, would normally and naturally drain into the lake, and his drainage system is planned to do this, but the high flood level prevents it. Snowden, another landowner, testified that he had lost between twenty and thirty acres of his farm, and had lost the front yard of his residence twice, and the caving banks caused by wave wash were still encroaching on him, that he had already spent four thousand dollars and would have to spend that much more to protect his home, and that, if the caving of the banks was not stopped, he would lose thirty acres more of his cleared land and about ten farm houses, if they were not removed. Other landowners suffered in like manner, but in less degree. It appears to be the opinion of all the landowners that some disposition of this flood water is necessary for the protection of their property.

This flood water is' impounded, as appears from the opinions in the cases above cited, by the St. Francis levee, and the defendants seek to restore the condition which would exist without the levee, but we think the undisputed testimony shows that the ditch will not quite do this. In other Words, after the water has ceased to-flow through the ditch, the level then existing will be higher than it would be but for the presence of the St. Francis levee.

It was said in the case of McCoy v. Board of Directors of Plum Bayou Levee District, 95 Ark. 345, 129 S. W. 1097, 29 L. R. A. (N. S.) 396, (to quote a syllabus in that case), that: “The flood waters of a river are a common enemy which any landowner may defend against without incurring liability for damages, unless injury is unnecessarily inflicted upon another which, by reasonable effort and expense, could be avoided. ’’’

It is this common enemy from whose encroachments the riparian owners seek to protect their property.

It is insisted that the case of State ex rel. v. Parker, supra, is decisive of this case, and forbids the landowners from now reducing the superficial' area of the lake. In that case the court said, in speaking' of Happy Jack as a part of Horseshoe Lake:

‘ ‘ When the waters of natural navigable lakes in this >State are extended by artificial means so as to cause the land of riparian owners to be flooded, without their consent, and this 'Condition is not merely temporary, but is continued for a sufficient length of time for the standing waters to produce a distinctive new highwater mark for the waters of the lake bed, this gives the State, as the owner of such lake bed, the possession of the lands so covered to the high-water mark. Such possession is open, for a complete submergence of one’s land in this manner could not escape observation, and, if the owner is powerless to remove the cause and to restore the lands to their former condition, such possession is also adverse, and if it continues for seven years or more without interruption, the State acquires the title to the lands so submerged; for, in such case, they have become a part of the natural lake bed. Such is the case here, and, as already observed, the State has acquired title by prescription or limitation. ('Citing authorities).’’

We do not impair the doctrine of that case, but we do interpret it in the light of the facts to which it applied. There the trustees of a sporting club which owned the Happy Jack area sought, while the same was a part of the lake, to so inclose'it as to exclude the public therefrom. We held this could not be done, because the submergence of the land for a period of more than seven years made the Happy Jack area by prescription a part of the lake, but we so held because it appeared, under the facts of that record, that the increased flood level, which was said to be five feet, “cannot be removed therefrom in any legitimate way. ’ ’ Here the testimony shows the landowners can obtain relief in a legitimate way, that way being to open by natural drains, which, when restored to the original state, will partly reduce the flood level.

Section 3663, C. & M. Digest, reads as follows:

“Any person, persons, levee or drainage district interested in the maintenance of the free flow of water through any stream, drain, ditch, or canal, may, where there is any timber, trees or material in any such stream, ditch, drain or canal, which tends to obstruct the free flow of water, remove the same, and shall have a cause of action against any person, persons or corporation who may h'ave felled or thrown, or caused to he felled or thrown, such timber, trees or materials into such stream, drain, ditch or canal, for the reasonable cost of removing the same, whether the said obstruction was placed in said stream, ditch, drain or canal either before or after the passage of this act. ’ ’

This statute gives the right to remove obstructions from any stream, ditch, drain or canal which obstruct the flow of water, and it is a continuing right which may be exercised at any time, “whether the said obstruction was placed in said stream, ditch, drain or canal either before or after the passage of this act.”

We think the defendants are in effect exercising the statutory right. It is true they did not clear Fish Bayou of obstructions as they might have done, but this is the effect of what they did. We think the undisputed testimony shows that the ditch will not carry away as much water as Fish Bayou would have carried away had it been restored to its natural state, for, be it remembered, the ditch emptied into Fish Bayou, which, without any work on its channel from there to its mouth, carries the water which flows into it from the ditch, and would carry more if the ditch were deeper.

It is argued that the St. Francis levee closed the only outlet the lake had, and the opinion in the case of State v. Parker, supra, recites the fact so to be. But we think an undisputed fact shows the contrary to be true. This undisputed fact is that the ditch does not enter the lake, but begins 1,800 feet from it. The water can get into tlie ditoli only by flowing- out of the lake into Jen-ning's Bayon. It must therefore be true that the bayou is an outlet, and it is also true that water flows through the bayou into the lake without removing any obstructions in that bayou, as § 3663, C. & M. Digest, provides may be done.

We are not therefore concluded by the opinion in the State v. Parker case supra, because the facts in the instant case are different. Simpson v. Martin, 174 Ark. 956, 298 S. W. 861.

The defendants are not barred by the seven-year statute of limitations as were the landowners under the facts stated in the State v. Parker case, supra, as these defendants cari obtain relief by exercising the continuing right given them by § 3663, C. & M. Digest.

We conclude therefore that the court was in error in requiring defendants to dam up their ditch, and the decree will be reversed, and the cause remanded with directions to so moddy the decree as to permit defendants to reopen their ditch, provided that in no event shall they be permitted to lower the water level below the point it would reach if the St. Francis levee were removed.

Wood, Kibby and Mehaeey, JJ., dissenting.