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

text:
    Massey v. Arkansas & Missouri Highway District in Pulaski County.
    Opinion delivered March 3, 1924.
    1. Highways — notice op assessment. — Special Acts 1923, p. 380, amending- Acts 1919, No. 82, creating- the Arkansas & Missouri Highway District, by adding thereto a road described in section five, and providing in section thirteen for assessment of benefits,' without providing for notice of assessments and a hearing thereon, held not void, since the act does not authorize a separate improvement, but merely provides for the improvement of a new road as a part of the unit of improvement provided for by the act of 1919, and the provisions of the latter act as to notice and hearing are applicable to assessments under the act of 1923.
    2. Constitutional law — province op legislature. — It is within the power of the Legislature to determine what shall constitute a unit of improvement, and such determination will not be disregarded by the court unless it is arbitrary and unreasonable on its face.
    3. Highways — mode op levying assessment. — The provision- of the act of 1919 (No. 82) that the county court should levy the assessment of benefits in the Arkansas & Missouri Highway District was repealed by the act of 1923, p. 380, which provided that the levy should be made by the commissioners of the district.
    4. Highways — requirement op vote op landowners. — Acts extraordinary session 1923, p- 11, § 25, prohibiting road improvement districts from making improvements and issuing bonds unless authorized by a vote of a majority in number and value of the landowners within the district, held inapplicable to the construction of the road added by Special Acts 1923, p. 380, to the Arkansas & Missouri Highway District created by Acts 1919, No. 82, since the latter district had already let construction contracts and issued bonds, and commenced construction work.
    5. Highways — limit op annual assessment. — Under Special Acts 1923, p. 385, § 13, limiting the amount of a highway assessment to 4 per centum for any one year, an annual levy of 5 per centum of the cost of the improvement was upheld, since the 5 per centum will not amount to more than the principal at 4 per centum and the interest on the installment of a given year.
    6. Highways — limit op assessment. — Special Acts 1923, p. 385, § 13, limiting the assessment of benefits in Arkansas & Missouri Highway District created by Acts 1919, No. 82, to 4 per centum for any one year, with 10 per centum added for unforeseen contingencies, held not in conflict with act of 1919, authorizing inclusion of interest on delayed installments at the rate of 6 per centum per annum.
    7. Highways — collateral attack on assessment..— Actions by landowners attacking the assessments of benefits in a highway district, not brought within 20 days after assessment was filed with the county cl'erk, as required by the statute, constituted a collateral attack, within the rule that the assessment will not be disturbed unless shown on its face to be arbitrary.
    8. Highways — collateral attack on assessment — evidence.—In an action by landowners attacking the assessment of benefits in an improvement district, evidence held insufficient to prove that the actual value of benefits was not considered in making assessments.
    Appeal from Pulaski Chancery Court; John E. MartÁneau, Chancellor;
    affirmed.

      Will G. Akers, for appellant Massey.
    The assessment and the levy are void on their face. 151 Ark 489; 150 Ark. 525; 153 Ark. 593. The rule applied in White v. Highivay District, 147 Ark. 160, and that applied in Swepston v. Avery, 118 Ark. 294, have been violated by the assessment of August 3, 1923, and it is therefore void. Act 198 of 1923 is in principle identical with the acts heretofore held void in the case of White v. Highway District, supra. The records show no referendum and no expression of the landowners in favor of the continuance of the work, as is contemplated by act No. 5, extraordinary session 1923, § '25.

      J. G. Marshall, Henderson & McConnell, and Cock-rill & Armistead, for appellants.
    1. The assessment and levy of taxes are each void on the face and subject to collateral attack.
    (1) Section 13 of act 198 provides that the levy made shall not exceed four per cent, for any one year. The act refers only to the Prothro Gin road, but the assessment and levy are combined for all purposes, and the order of levy made by the commissioners is for five per cent, per annum on the assessed benefits for 25 years.
    (2) Act 82 provides by § 8 thereof that the levy of tax shall be made by order of the county court. This necessarily applies to any reassessment. Act 198 provides that the levy thereunder, which could only be for the Prothro Gin road, shall be made by order of the commissioners.
    (3) The assessment is so grossly excessive as to be void on its face. The estimated cost of improvement filed August 3, 1923, inclusive of ten per cent, for contingencies, amounts to $556,866 for new work; there is added the “cost of work previously done,” $761,071.10; yet the levy of tax is for 125 per cent, of $1,919,962, or $2,400,000. 150 Ark. 199; 151 Ark. 489; 150 Ark. 525; 139 Ark. 431; 97 Ark. 330. The assessment is admitted to be for expenditures in excess of the previously assessed benefits. Such expenditures are clearly illegal. 119 Ark. 199; 153 Ark. 593.

      (4) The assessment is void because it blankets the project of act 198, which is distinct, with the projects of the earlier acts, and those not covered by any law, such as the Third Street lateral, and those covered by void laws, such as the East Ninth Street project, and also combines in the mass costs iilcurred in excess of the previous assessment of benefits, which represent illegal expenditures. 147 Ark. 165; 118 Ark. 294.
    (5) The assessment is void because it is a reassessment without notice. Act 82, §§ 15, 16.
    2. '.By reason of the fact that no assessment is provided for in act 198, by reference or otherwise, the one now made is void for the reason given in the White case, 147 Ark. 160. 158 Ark. 519; 159 Ark. 569; 142 Ark. 52, 59.

      Rogers, Barber & Henry and Rose, Hemingway, Cantrell & Loughborough, for appellee.
    1. It is fundamental in this State that every improvement must be a unit, with a single assessment for • the entire work. Here there is an actual continuity of roads, so that there is no gap anywhere that has to be bridged over. That such a system of roads constitutes a single improvement no longer admits of question. 125 Ark. 325; 137 Ark. 354; 139 Ark. 595; 138 Ark. 549; 142 Ark. 552; 144 Ark. 46; 150 Ark. 127; 135 Ark. 5'24; 147 Ark. 164.
    2. The assessment of benefits, representing the views of the assessor, a man chosen because of his peculiar qualifications for the work, and of the board of commissioners, a body of business men residing in the district, who sat with him, in its equalization, will not be disturbed by this court, unless abuse is. shown, and it affirmatively appears that no benefit can accrue from the improvement. 134 Ark. 14; 143 Ark. 203, 204; 151 Ark. 484; 155 Ark. 89; 139 Ark. 277; 144 Ark. 632; 147 Ark. 469; I'd. 363; 153 Ark. 587; 159 Ark. 84; 98 Ark. 544; 133 Ark. 125; 139 Ark. 322; 141 Ark. 164; 251 S. W. 12.
    3. The suit was brought too late. The act 19B pro- ■ vides that the assessment and tax levy shall be conclusive unless an appeal is taken within twenty days from the time the assessment of benefits is filed with the county clerk. Such a limitation is valid. 139 Ark. 567; 151. Ark. 484; 152 Ark. 422; 158 Ark. 330. Any complaint which is essentially an attack upon the assessment of benefits must be filed within the time limited. 150 Ark. 443; 151 Ark. 484; 155 Ark. 89; 144 Ark. 642; 147 Ark. 469; Id. 363; 153 Ark. 587; 159 Ark. 84; 98 Ark. 544; 134 Ark. 14. When taxpayers stand by and permit improvements to be made, they will not be allowed to defeat the taxation necessary to pay for the benefits which they have received. 158 Ark. 58; 55 Ark. 148; 47 Ark. 269; 43 Ark. 275; 81 Ark. '244; 79 Ark. 229; 116 Ark. 377; 96 U. S. 341; 177 U. S. 67; 161 U. S. 200; 98 U. S. 308; 151 H. S. 294.
    4. There is no merit in the contention that the notice of the assessment is void. The mere fact that it is a second assessment of benefits does not involve any difference in the notice. It is exactly in the form prescribed by the statute, act 82 of 1919, § 16. And this section, which counsel apparently overlook in contending that there can be no reassessment of benefits unless there is a change of plans, refutes that contention. And the authority to make a complete reassessment is upheld in 145 Ark. 438, and 153. Ark. 635.
    5. The assessment of benefits properly covers work already done. 43 Sup. Ot. Rep. 261; 139 Ark. 347-8; 156 Ark. 267; 154 Ark. 554. •
    6. The tax levy is not in violation of' the statute. Act 82 of 1919, § 7; act 196 of 1923, § 13. The 4 per cent, referred to in the act of 1923 is the same as the 5 per cent, referred to in act 82 of 1919, providing that “all such assessments shall be made payable in installments, so that not more than 5 per cent, shall be collected in any one year, against the wishes of landowners; and in the event that any landowner avails himself of this indulgence, the deferred installments of the assessed benefits shall bear interest at the rate of 6 per cent, per annum.” 122 Ark. 291; 141 Ark. 238; 139 Ark. 4; 144 Ark. 495; 145 Ark. 487.

      7. There is no foundation in fact for the contention that the levy is so grossly excessive as to be void on its face. From the tables showing the maturities of the two bond, issues, it appears that the face of said obligations, with interest added, plus the statutory 10' per cent, for contingencies, will amount to the exact sum which has been levied by the commissioners. This 10 per cent, margin is essential, not only to provide a fund to pay the cost of collection, etc., but also to cover deficiencies caused by the failure of some taxpayers to pay their taxes. 139 Ark. 431; 147 Ark. 450.
   McCulloch, C. J.

There are before us two separate actions involving the same subject-matter, namely, an attack on the validity of a statute authorizing the improvement of a public road in Pulaski County, and also an attack on the assessment of benefits and other proceedings of the board of commissioners. The two cases are consolidated here, and both will be disposed of in this opinion.

The Arkansas & Missouri Highway District in Pulaski County was created by act No. 82 of the General Assembly of 1919, and its validity was upheld by this court in the case of Van Dyke v. Mack, 139 Ark. 524. That statute authorized the selection of the route of the road by the commissioners of the district, 'and the road selected by the commissioners runs from the north end of Main Street, in the city of North Little Rock, in a general northeasterly direction, to the Lonoke County line. Another part of the route was selected along East Third Street, in the city of North Little Rock, running from what is known as the Galloway Pike eastward to Main Street. Later, in the same session of the General Assembly, act No. 128 was passed, authorizing the addition of another route, known as the Jacksonville lateral and running east from Main Street in North Little Rock at Thirteenth Street, out that street, in an easterly direction to the city limits, and thence to Booker, on the line of the railroad, thence to Jacksonville, and thence northeast along ■a specified route to a junction with the other route selected by the board of commissioners, known as the main line.

During the extraordinary session of 1920 the General Assembly passed separate statutes authorizing the construction of certain laterals, designated, respectively, as the Tate’s Mill lateral, the East Ninth Street lateral, and another lateral, but all of these last mentioned were stricken down as invalid under the decision of this court in the case of White v. Arkansas & Missouri Highway District, 147 Ark. 160.

It appears from the proof in this case that, under the original statute creating the district and under act No. 128 of the General Assembly of 1919, supra, there was ■constructed the improvement of Third Street by hard-surface pavement, and about one and a half or two miles of hard-surface pavement of the main line running northward from the north end of Main Street, in North Little Eock, and the grading of the remainder of the road and the construction of bridges, and also the paving of Thirteenth Street inside the city limits a distance of only a few blocks, and the grading of a portion of the remainder of that road to Jacksonville. Assessments of benefits were levied for the construction of those projects, and bonds were issued, which are still outstanding. After the decision holding invalid the statutes of the extraordinary session of 1920, referred to above, the work was stopped altogether, for the want of funds, and the statute which is now under consideration was enacted by the General Assembly of 1923 (Special Acts 1923, p. 380), purporting to amend the original act No. 82 creating the district, and authorizing the inclusion into the district and improvement of another road described in § 5 of the statute, which reads as follows:

. “The board of commissioners shall lay out and construct a road running from a point on the highway built by the North Little Eock & Galloway Highway District, at or near what is known as Prothro’s Gin, where the present Jacksonville road intersects the said Galloway Pike, to a point on the Jacksonville lateral road, as may be selected by the 'commissioners, and via Booker, MeAlmont and Jacksonville, to the Lonoke County line, said road to have an eighteen-foot paved surface of asphalt or concrete, as the commissioners may deem best, and, if asphalt type road is used, it shall have a concrete header on either side to prevent spreading’, and all quarter sections of land north of the Arkansas River, where any part of same is within five miles of said road as planned, shall be added to and included in the district, if not now included in the district.” The caption of the statute is “An act to amend act Number 82 of the Acts of 1919.”

The first section of the statute removes the old members of the commission, increases the number to five, and designates the new members by name, prescribes the salary and the method by which vacancies may be filled from time to time. Another section directs the commissioners to make application for'State and Federal aid, which had already been allotted and uncollected bn the portion of the road to be improved under the prior statutes. Another section authorizes the commissioners to remove the assessors at will and select a successor.

Section 13 of the statute reads as follows:

“The board of commissioners, at the time an assessment of benefits is filed, or at any subsequent time, shall make an order, which shall be filed with the county clerk, which shall have all the force of judgment, provided there shall be assessed upon the real property of the district a tax sufficient to pay the estimated cost of the improvement, with ten per cent, added for unforeseen contingencies, which tax is to be paid by the real property in the district in the proportion to the amount of the assessment of. benefits thereon, which is to be paid in annual installments, payable not to exceed four per cent, for any one-year, as may be provided in such order. The tax so levied shall be a lien upon all the real property in the district from the time the same is filed with the county clerk, -and shall be entitled to preference over all demands, executions, incumbrances or liens whatsoever created, and shall continue until such -assessment, with any penalties and costs that may accrue thereon, shall have been paid. The remedy against such assessment of taxes shall be by appeal, and such appeal must be taken within twenty days from the time that said assessment has been filed with the county clerk, and, on such appeal, the presumption shall be in favor of the legality of the tax. Any owner of real property in the district may, by mandamus, compel compliance by the board of commissioners with the terms of this section. Provided, that the levy or levies on the assessment of benefits as herein provided for shall in no case exceed the total assessed benefits and interest thereon.”

Section 14 places a restriction upon the percentage of expenditures for expenses of engineers, attorneys’ fees, and incidental expenses. Other sections referred to the laterals mentioned in former statutes relating to this district..

The board of commissioners authorized under the statute last referred to proceeded to carry out the terms of the statute by forming plans for improving the road from Prothro’s Gin, on the Galloway Pike, to the Lonoke County line. They appointed an assessor, who .proceeded to make an assessment of benefits, which was reported to the commissioners and filed with the clerk of the county court, and, after hearing protests, the taxes were levied on these assessments of benefits, payable in annual installments of five per centum of the cost of the improvement, including ten per centum added for unforeseen contingencies.

The appellants in these two actions are owners of real property in the district, and they attack the validity of the statute, also the validity of the assessments, and the amount of the annual levy, and they also contend that the proceedings are void because in conflict with the terms of § 25 of the act of the extraordinary session of 1923 (Acts Extra Session 1923, p. 11), requiring an election to be held before proceeding under special statute to construct an improvement.

The first ground of the attack on the validity of the statute itself is tlat it authorizes the improvement of a certain road and the assessment of benefits to pay for the improvement, but fails to provide a method for assessing the benefits and in levying and collecting the taxes. This question, as well as most of the other questions in the case, turns on the construction of the statute to determine whether it authorizes a separate improvement, with separate methods of operation, or whether it constitutes an incorporation of the new provisions into the .old statute.

It will be observed that § 13 of the statute authorizes the assessment of benefits, but does not provide a complete method for assessing the benefits and enforcing the same. It contains no provision for notice of assessments and a hearing to be afforded to owners of property, and, unless the statute is connected up with the original act creating the district, which contains such provisions, then the statute is void, for the reason that, where the lawmakers delegate to subordinate agencies or other tribunals authority to make assessments, owners of property are entitled to a hearing, otherwise it constitutes the taking of property without due process of law.

Learned counsel for appellants insist that this case is controlled! by our decision in White v. Arkansas & Missouri Highway District, supra, where we held the statutes enacted by the extraordinary session of 1920 to be invalid. While there are some points of similarity between the statutes involved in that decision and the one now under consideration, they are by no means identical, and we have reached the conclusion that the present case does not fall within the controlling force of that decision. The statutes under review in that case created three separate laterals, and prescribed by zones the lands to be included in the district, and two of them excluded other lands which were in the old district, and the only reference to the original statute creating the district was the declaration in each act that the road “shall be built under all the terms and conditions of said act 82 or other acts amending the same, and in -such, manner as the commissioners of the district deem best. The case was decided by a divided court, and the majority reached the conclusion that the statute created new projects, and that the language quoted above and used in each statute was not sufficient to constitute an adoption of the method of procedure for assessing benefits, etc., prescribed in the original statute. In reaching this conclusion, much force was given to the fact that the statutes then under consideration constituted legislative findings that lands within the boundaries of the old district, more than five miles from these laterals, would not be benefited by the additional improvements. In that case there were no grounds on which to base a decision that the new statutes constituted a reference to, or adoption of, the provisions of the old statute, unless the language quoted above was sufficient for that purpose. The present case does not depend upon the interpretation of any such language used in the statute considered in the White ease. Whatever reasons there .are for a decision either way in the present case, the decision does not depend on any such language, but upon other language of the statute. In the present statute there is no exclusion of lands as not being benefited in the district. On the contrary, the language of § -5, quoted above, shows plainly that no lands originally in the district are excluded, and the only change with respect to the boundaries of the district relates to lands within five miles of the new road specified not already included in the district. In other words, the new statute added lands to the district, but takes nothing from the district. This is a very strong circumstance showing that the lawmakers intended merely to add the new project as a part of the original unit, and not as an independent improvement to be separately paid for out of benefits accruing from that single improvement. It is within the power of the Legislature to determine ydiat shall constitute a unit of improvement, and such determination will not be disregarded by the court, unless it is arbitrary and unreasonable on its face. Johns v. Road Improvement Districts, 142 Ark. 73. The whole framework of the new statute shows clearly that it was intended merely as an amendment of the old statute by the incorporation of the newly selected road as a part of the unit of improvement. The title óf the act malíes it an amendment to the original statute* and the reference to the change in the personnel of the commission, as well as' the reference to other matters in the old statute, shows that it is an amendment.

There is only one conflict that we can discover between the new statute and the old, and that is with reference to the levying of the assessments. Act No. 82, supra, provides for the filing of the assessments with the county clerk and the levying of assessments by order of the county court, whereas § 13, supra, of the statute now under consideration provides that the commissioners of the district shall levy the assessments. This must be treated as a repeal of the old statute to that extent, rather than :an attempt to provide for a distinct method of levying separate assessments for the construction of this part of the improvement. The old statute provides for reassessments of benefits and for maintenance, but § 13 manifestly relates to an assessment of benefits to all property in the district as a single unit, and for all purposes involved in the district. This is what was done under the assessment of benefits, so as to include the cost of the improvement already made, as well as that to be made under the provisions of this statute, and the maintenance of the improvement, all in one assessment. This statute does not repeal any of the provisions of act No. 82 not in conflict therewith, so the provisions for giving notice of the assessment and affording a hearing to the property owners is conferred by the original statute.

It is next contended that the proceedings under this statute are invalid because there has been no compliance with the requirement of the recent statute of the extraordinary session of 1923 in regard to an election. Section 25 reads, in part, as follows:

“The commissioners or directors of any road improvement districts created by special acts of the Legislature enacted since the session of the General Assembly in the year 1915, except St. Francis River Road Improvement District of Poinsett County, Arkansas, and St. Francis River and Bridge Roacl Improvement District, Poinsett County, Arkansas, that have not, at the time of the passage of this act, let any construction contracts, actually done construction work, or issued, sold or delivered to the purchaser thereof any bonds of the district, shall not proceed with the construction of the improvements under their charge, and shall not issue any bonds to secure funds therefor, unless a majority in number and in value of the landowners in fee simple in such district, voting at the election provided for in this act, shall express by their ballots a desire that the construction of such improvements be proceeded with. (Here follow provisions for giving notice and holding the election). This section of this act shall not apply to improvement districts where the act creating the improvement district or amendments to it provides for petitions of any majority of property owners, or an election to ascertain their will, or to- those districts where actual construction work has been begun or contracts therefor have been made, or bonds sold and delivered and are outstanding, before the passage of this act.”

This provision of the law refers to improvements, under special -statutes, as a whole, and not to a vote on each particular portion of an improvement unit. Viewing the statute in that light, the project added to this district by the statute now under consideration does not violate the terms of the general statute requiring an election as a whole. The present district, as a single unit added to by the act of 1923, sivpra, had, before the enactment of the general statute referred to above, airearlv let construction contracts, had actually done construction work, and had issued, sold and delivered bonds of the district. It is true that the new sale of bonds, to cover the additional improvement under the present statute, appears from the evidence to have been only tentative, and no new work had been done under this statute. It is unnecessary for us to determine whether or not the evidence shows the sale of bonds to have been sufficiently complete to exclude the district from the operation of the general statute. ¡"We hold that the district is not included in the general statute for the reason, as above stated, that there had already been work done and bonds issued upon the whole unit. It was not the purpose of the general statute referred to above to require an election of property owners^ every time the lawmakers authorized an addition to the improvement or additional issue of bonds, but the purpose was to withdraw the authority to start improvements on a given unit unless there was held an election by property owners. We are therefore of the opinion that the proceedings of this district are not hampered by the requirement for holding an election.

It is next contended that the annual levy of five per centum of the cost of the improvement is in violation of ■§ 13, supra, which limits the assessment to four per centum for any one year. The answer made to this contention by counsel for appellee, which we consider sound, is that the original act No. 82 authorized the inclusion of interest on delayed installments at the rate of six per centum per annum, and the interest will amount to more than the additional one per centum added to the assessments. In other words, five per centum will not amount to more .than the principal at four per centum and the interest for the installment of a given year, nor will any of the installments, as a whole, amount to more than the total cost of the improvement, with the ten per centum added for contingencies and the interest on the assessments at six per centum. On the contrary, the levy will be considerably less. This provision in § 13 with reference to the limitation of four per centum on the cost of the improvement, with “ten per cent, added for unforeseen contingencies,” is not in conflict with the original .statute authorizing the imposition of interest on postponed assessments, and therefore does not repeal the same.

This action was not instituted within twenty days after the assessment was filed with the county clerk, as provided in § 13, supra, and it therefore constitutes a 'collateral and not a direct attack upon the validity of the assessments. Appellants filed their protests, hut they failed to bring the suit within the twenty days mentioned in the statute. The assessment is not void on its face, as it appears to be an assessment made upon each individual piece of property, according to its benefits.

There was testimony taken in the case directed to the question of assessment of benefits, and it was shown that all of the cost of the whole improvement, that which had already been made and that which is to be made (not including that part of the improvements which were stricken down by the decision of this court), was taken into consideration for the purposes of assessing the benefits for the payment as well as for the maintenance, and the testimony of the assessor shows that he considered all of the elements entering into the enhancement of values by reason of the construction of the improvement. In other words, it is shown that the assessment was made as a unit for the payment of all the work that was done, and that the real benefits were considered in making the assessment. There was no arbitrary method of assessment adopted, but the actual value of benefits was considered. A summary of the testimony of the assessor, which is not contradicted, is as follows:

“If I remember the figures right, I think there are 60,000 separate assessments, and to say that individual judgment must be passed on each one is impossible. It would have to be machine-made, to a large extent. In addition to this formula set out here, I did give personal attention to every single suggestion made by a taxpayer individualizing his own property, and tried to vary from the rule and make concessions wherever possible, and did make concessions, but, even when that is said and done, the vast bulk of it is on the scale of treating everybody alike. ’ ’

We do not think the testimony is sufficient, even on a direct attack, to overturn the assessment as a whole, though there is strong testimony to show that the particular assessments of the appellants are excessive. But, as before stated, this is not a direct attack on the assessments, and is collateral, which cannot be made successful unless the assessment is shown on its face to be arbitrary. Road Improvement Districts v. Crary, 151 Ark. 484.

The conclusion therefore on the whole case is that the attacks upon the statute itself and on the assessment-are equally without sufficient grounds.

The decree of the chancery court is affirmed.

Hart, J.,

(dissenting). Judge Wood and myself

think that the majority opinion in this -case is contrary to the principles of law decided in the majority opinion in the case of White v. Ark. & Mo. Highway Dist. of Pulaski County, 147 Ark., p. 160. In that case it was held that the amendatory acts to the act creating the Arkansas & Missouri Highway District in Pulaski County were not sufficiently definite to stand alone. The amendatory acts provided for certain laterals, and the court held them void, because no machinery for making assessments was provided by the amendatory acts.

The territory added by a-ct 198, passed by the Legislature of 1923, is in all essential respects the same as the territory added by act 356, enacted by the Legislature at the extraordinary session in 1920. The language used in the -act of 1923 reads as follows: “ * and all quarter sections of land north of the Arkansas River where any part of same is within five miles of said road as planned shall be added to and included in the district, if not now included in the district.” Special Laws of 1923, p. 380.

Section 2 of act 356, approved February '25, 1920, reads -as follows: “Section 2. All quarter sections of land in Pulaski County north of the Arkansas River, any part of which is within five miles of the road hereby authorized to be laid out and constructed, that are not already in the Arkansas & Missouri Highway District in Pulaski 'County, shall he added to and included in said district.”

■Section 7 of act 356 provides that said roads shall be built under all the terms and conditions of act 82, which was the original act, or other acts amending the same.

Tn the White case it was held that this section did not confer authority upon the commissioners to make the assessment. The court said that the whole improvement was to be built as a unit, and the entire betterment should be assessed as a unit. The Chief Justice dissented on the ground that this language expressly conferred the power to build the laterals, and referred to another statute for the method and machinery to be used in making the assessments.

The present act does not even contain a provision authorizing a new assessment to be made under the terms of the original act or any act amendatory thereto. It is well settled that assessments can only be made under power conferred by statute. The board of commissioners act as the agent of the property owners whose interests are affected by the duties it performs. The powers exercised by the board of commissioners to construct the improvement, or as a board of assessors to assess benefits, are derived directly from the Legislature. The Legislature may prescribe the manner in which the commissioners may compel the property owner to contribute to the improvement of the public roads situated in the improvement district, and from which, in the opinion of the Legislature, he derives a benefit; but the powers thus conferred must be strictly followed. The reason is that the power to construct these improvements by the commissioners as the agents of the property owners, and with which the latter must comply, although no party to any of the proceedings, being derived solely from legislative enactment, the courts, instead of enlarging such powers by construction which, even when exercised within proper bounds, must often prove onerous and oppressive to the property owners, should réquire a strict complianee with the act conferring the powers. This is necessary for the benefit and protection of the landowners. The assessment, when completed, becomes a lien upon the lands, and it is of first consequence to the landowners to be informed of the extent to which this lien is fixed on their lands.

There is no provision in the present act providing for any method of assessing benefits against lands, and a landowner could only surmise that an assessment would be made under the terms of the original act. New territory is added to the old district, and provision is made for the construction of additional roads. Therefore some'provision should be made in the amendatory act for a new assessment of benefits, if the Legislature thought a new assessment should be made. We believe that the Legislature did not make or attempt to make provision for a new assessment of benefits upon the lands designated within the boundaries of the district by the amendatory act, and that the court should not supply this defect or omission by any process of judicial construction. The power of assessing benefits should only come from direct legislative action, or the action of such persons or bodies as may be directly delegated with sufficient authority to make the assessment.

Once more, we feel called upon to protest against the zone method of making assessments in cases like this. When the original act and all the amendatory acts are read together, it is evident that the rule by which the commissioners profess to govern themselves was not that which they in fact applied; and that the assessments made by them are not assessments according to benefits, although attempted to be disguised in that form. The theory upon which local assessments are sustained is that the lands assessed are locally and peculiarly benefited over and above the ordinary benefits to the extent of the assessment. Special assessments can be sustained alone upon the principle that those lands which enjoy the benefits shall equally, or according to an equitable rule of apportionment, bear their just share of the burden. Ño equitable apportionment is attainable under the method of assessment adopted, in the present case.

The expert for the commissioners testified: “The benefits as computed are based upon the work already done by the district, and maintaining the same, and on doing the following new work and none other.”

Now the East Ninth Street lateral in North Little Bock had already been constructed at great cost, and the act providing for it was expressly held invalid in the 'White case referred to above. No provision is made for the maintenance of the new part of the road to be constructed by the amendatory act of 1923. No provision is made in any of the other acts for maintaining it. It is admitted that the assessors considered the parts of the road held invalid in the White case in making the assessment of benefits. No separation of the benefits of construction or of maintenance is made or attempted to be made. The legal and illegal parts of the roads to be improved are yoked together. This makes the assessment illegal on its face.

Then too, the district was divided into zones for the purpose of making the assessments. The cities of Little Bock and North Little Bock and the rural lands within five miles of the improved roads are included in the same district.

The fact that the two cities have separate business and residence districts is disregarded. No regard is had to any difference of character in the rural lands; and no attention is paid to the fact that they are served by other public roads leading into North Little Bock or Little Bock. When the density of population of the two cities and the varying and • different character of the outlying territory are considered’ the frontage rule or zone system of assessment will necessarily result in irregularities and discriminations in making the assessment of benefits, and is theref ore arbitrary. The burden cannot be apportioned with any proximate equality by merely considering the distance of the urban and rural property from the roads to be improved. In this connection it may not be inappropriate to say that we consider the building of laterals in the two cities, without the consent of a majority in value of the property owners affected, to be violative of art. 19, § 27, of our Constitution.

We are of the opinion that the proceedings under this act are invalid because there has been no election held in compliance with § 25 of the high way act passed at the special session of the Legislature of 1923. We think the object of § 25 of that act was to prevent further proceedings in districts like the present one until the majority of the landowners in number and in value in the district shall vote, at an election held for that purpose, that the construction of such improvemen ts be proceeded with.

Therefore we respectfully dissent.


source: Caselaw Access Project

author: Wood, J.

license: Public Domain

text:
    Owens v. Atkins.
    Opinion delivered March 3, 1924.
    1. Municipal corporations — permanent obstruction of street.— Where a permanent obstruction of a street becomes a public nuisance so as to inconvenience the public, the municipality or any individual especially injured thereby may abate and restrain same by injunction.
    2. Municipal corporations — temporary obstruction of street.— A city or town council may, by a .temporary inclosure or obstruction of the streets, divert public travel when same becomes necessary to meet some exigency or some laudable purpose that conserves the public or private welfare.
    3. Municipal corporations — trespass.—Where a town council granted to a school board a temporary right to possession of two .streets wlhile a game of baseball was played by school children, and so much of the street as was sufficient to permit the playing of the game was fenced off during the game, one who persisted in intruding within the inclosure and interfering with the game was guilty of a violation of Crawford & Moses’ Dig., § 2546.
    Appeal from Pope Circuit Court; J. T. Bulloch, Judge;
    affirmed.

      Robert Bailey and Edward Gordon, f'or appellants.
    The town council could not, by ordinance or otherwise, permit the closing of the public streets or the use of them for any purpose other than that for which they were dedicated. 50 Ark. 472, 473; 19 Wend. 659; 22 la. 351; 7 Ohio 354; 2 Dillon of Municipal Corporations, 3d ed., §§ 650, 651, and authorities cited; 42 Ark. 102; 40 Ark. 83; 77 Ark. 227; Id. 576; 89 Ark. 177; 111 Ark. 549; 135 Ark. 437; 112 Ark. 207; 147 Ark. '292.

      E. A. Williams, for appellee.
    1. Every necessary fact that goes into making a case of purpresture is lacking in this case. Counsel have fallen into error and failed to distinguish between purpresture and temporary closure, the right of cities and towns to erect temporary barriers. 13 R. C. L. 224; 42 L. R. A. (3SF. S.) 480; 19 R. C. L. 783.
    2. The conduct of the defendants was such as to-constitute a trespass, and punishable at the common law, even though we have no statute on the subject. 1 Clark & Marshall’s Law of Crime, 45.
   Wood, J.

The school building and grounds in the - town of Atkins occupy one block, on the east side of which is located the school building and a small playground, and on the west side there is located what is known as a park or baseball ground, on the ’ northeast portion of which is a grandstand, in order to afford sufficient space-for the playing of baseball on the school grounds, it became necessary to use the street running east and west along the south side and also the street running north and south along the west -side of the school property. It was also necessary that certain' private property be used as a part of the ball ground. The town council of Atldns granted to the school board of the school district the right to close úp the-streets mentioned during the game, which lasted one and a half hours two days in the week. The school board leased the private property, and on the east side, south of the school building, they placed a fence in panels and wagon sheets, closing the street on the east and joining with the property leased of Mrs. Campbell on the south. On the north from the school building another panel fence connected with the grandstand and the fence across the street. The fence 'was so constructed that it could be taken down immediately after each game, and stacked away. On the west and southwest there were ropes stretched across the streets so as to completely inclose this space used as a ball park. No one could enter this park, thus inclosed, without either crawling under the ropes and sheets, or going around the end of same on to the private property, over which the school board had control.

One day, when a game of baseball was in progress, Bleve Scott came into the park, without paying, and, instead of going to the grandstand, he took his stand in the street running east and west on the south. In this position he interfered with the gaime, and, upon his refusal to pay and take his seat in the grandstand, or g*o outside of the park, he was arrested and fined by the mayor, sitting as a justice of the peace, for the offense of trespass. A short time thereafter he returned, in company with E. Owens. They went in on the west side and took their stand on the sidewalk, where those who paid their admission fee were not allowed to remain, and where they would interrupt the game. Upon their refusal to pay or move out of the way, at, the request of the marshal of the town, acting under the auspices of the school board, warrants were issued charging them with trespass, and they were arrested and tried before a jury in the mayor’s court, sitting as a justice of the peace, and fined in the sum of $10.

There was testimony on behalf of the town tending to prove that the. presence of Scott and Owens at the places indicated had a tendency to disturb the crowd and to interfere with the game of ball. The marshal requested them, two or three times, to move, and offered to loan them the fifty cents charged for entering the grounds, and even to give them the fifty cents if they would move and take their places in compliance with the rules of the school board. There was testimony to the effect that the streets temporarily inclosed were not main business streets of the town, but residence streets; that no main thoroughfare leading out of the town was closed up at all. Owens and' Scott were there to take in the ball game. One of them said that he did not have any money to pay the entrance fee that day. The other one had the money, and refused to pay. They both asserted that they had a right to use the street in the manner in which they were using same, and to stand there to watch the game.

They appealed to the circuit court, where the oases were consolidated for trial, and were submitted to a jury. The court instructed the jury, in effect, that the punishment for trespass was a fine of not more than $100, and that the only issue for the jury to determine was as to the amount of the fine; that the defendants, under their own. statement, were guilty of trespass. The defendants aslred the court to instruct the jury that the defendants had a perfect right to be on the streets of Atkins, and that, while on the streets, they were not guilty of trespass, and that the town had no right to close the streets except for public safety or public health. The court refused these prayers, to all of which rulings of the court the defendants objected and duly excepted. The jury returned a verdict of guilty, and assessed the fines against each of the defendants in the sum of $10. From the judgments entered against them in that sum they bring this appeal.

Learned counsel for appellants contend that the inclosing of the streets in the manner shown by the undisputed testimony was no more nor less than a purpresture on the part of the school board, or those controlling the baseball team in Atkins, as the town council could not, by ordinance or otherwise, permit the closing of public streets or the use of them for any other purpose than that for which they were dedicated. To sustain this contention, counsel rely upon the doctrine of our cases to the effect that, where land is dedicated by the owner to public use as a thoroughfare — a highway or street — the authorities of a city or town in which it is situated cannot lawfully appropriate it to any other purpose, and that an inclosure thereof or encroachment thereon which obstructs or interferes with the use of same for the purposes for which it was dedicated, constitutes a purpresture, and may become a public nuisance, which the public, or any individual who has sustained a peculiar and special injury thereby not shared in common with the public, may abate by injunction, citing Packet Co. v. Sorrels, 50 Ark 456; Taylor v. Armstrong, 24 Ark. 102; Matthews v. Bloodworth, 111 Ark. 545, and other cases.

But the doctrine of these cases has no application to the facts of this record, for the reason that, in all of those cases, there was an obstruction to the thoroughfare of a permanent character, and not a mere temporary barrier and interference with the use of the thoroughfare for its dedicated purpose. In Ruffner v. Phelps, 65 Ark. 410, we said:

“A purpresture is an encroachment upon the street which the municipality may or may not tolerate, at its option, if same be not also a public nuisance; but, if said encroachment be such as to inconvenience the public, the municipality, or any individual especially injured thereby, may abate and restrain same by injunction.”

A failure to distinguish between the permanent and temporary character of the inclosure and obstruction of the streets has led appellants and their counsel into the error of assuming that the grant by the town council to the school board of permission for the latter to inclose the streets in the manner indicated conferred no rights upon the school board which the appellants were bound to'respect. It is well established by the authorities that any city or town council may, by a temporary inclosure or obstruction of the streets, divert public travel when same becomes necessary to meet some exigency or some laudable purpose that conserves the public or private welfare. As is said in 19 Ruling Case Law, 183:

“A municipal corporation may permit a temporary use of a public way for private purposes, especially if it is incidental to or connected with the use or way for travel, or is essential to the reasonable use of the adjoining property.”

See also 13 Ruling Case Law, Highways, § 189. In Lawrenceburg v. Alice May, 149 Ky. 490, 42 L. R. A. (F. S.) 480, 483, quoting from Simon v. Atlanta, 67 Ga. 618, 44 Am. Rep. 739, it is said:

“It is, however, a safe and reasonable rule to declare that, so long as the alleged obstruction is temporary and reasonable in character and is intended for public safety and convenience, it is no cause of complaint.”

Fow, the undisputed tbstimony shows that the town council and the school board joined in the commendable effort to furnish the youth of Atkins the wholesome sport so essential to their physical development, and also to afford them and the people of the town an innocent diversion which added greatly to their pleasure and entertainment, by providing a park where the great American game of baseball could be played. This, under the circumstances, was a use, temporary and reasonable in character, which tended to promote the welfare of the town, and which the town council was fully justified in recognizing. Its grant to the school hoard gave such board a temporary right to the possession of the streets named for the purpose mentioned, which appellants had no right to interfere with. The recalcitrant and obstinate manner in which appellants ignored the rights of the school board and the public interested in the maintenance of the ball park, on the school grounds, constituted' a trespass which, as the proof shows, was well calculated to cause a breach of the public peace and order. Hnder the common law this was a public offense, and it is made so under our statutes. 1 Clark and Marshall’s Law of Crimes, p. 45, § 17; Crawford & Moses’ Digest, § 2546.

The trial court correctly so declared the law, and defined the punishment that could be imposed on appellants. The verdict of the jury shows that they were lenient in not assessing a greater fine than ten dollars for the offense committed' by the appellants. The judgments are correct in all things, and therefore are affirmed.


text:
    Lesser-Goldman Cotton Company v. Hembree.
    Opinion delivered March 3, 1924.
    1. Mortgages — signature of chattel mortgage. — Where a chattel mortgage had a printed indorsement: “This instrument to be filed but not recorded,” followed by the mortgagee’s name, likewise printed, -this was a sufficient signature within Crawford & Moses’ Dig., § 7384, so as to render the mortgage effective as constructive notice to third parties.
    2. Mortgages — sufficiency of description op crop. — A mortgage on the “entire crop grown during the year 1920 on Welfcourne Place in Watson township, Conway County, Arkansas, or any and all other crops of corn and cotton I may have an interest in during the year 19...... in said county,” held sufficient to charge a purchaser with notice of a lien on any crop raised by the mortgagor in such county, regardless of any mistake as to the place or township.
    Appeal from Conway Chancery Court; W. E. Atliinson, Chancellor;
    affirmed.

      Strait & Strait, for appellants.
    1. The filing of the mortgage did not constitute constructive notice to appellant, the purchaser of the cotton. The mere printing of the name of the mortgagee under the indorsement, “This instrument is to be filed but not recorded” was not a signature “by the mortgagee, his agent or attorney,” within the meaning of the statute. C. & M. Digest, § 73-84; 130 Ark. 290; 37 Ark. ■507; 43 Ark. 144; 52 Ark. 164; 83 Ark. 109; 121 Ark. 346; 101 Ark. 68.
    2. The mortgage does not describe with sufficient certainty the crop of cotton in question to enable a person to identify the cotton. There is no such farm or township in Conway County as the farm and township mentioned in the mortgage. 41 Ark. 495; 108 Ark. 162; 134 Ark. 241; 54 Ark. 91.

      Calvin Sellers, for appellee.
    1. A substantial compliance with the statute regarding the filing of a mortgage is all that is required, and it makes no difference whether the mortgagee causes his name to be signed to the indorsement in writing or in print. 130 Ark. 289; 40 Ark. 431; 60 Ark. 112; Words & Phrases, 584; 103 N. W. 327; 136 S. W. 217; 101 Ark. 68; Central Law Journal, vol. 74, p. 339; 103 Ind. 96; 47 Atl. 675; 84 Pac. 1002; 27 N'. W. 579.
    2. It is not necessary that the mortgaged property should be so described as to be capable of identification by the written recital, or by the name used to designate it in the mortgage, but any description which will enable third parties to identify the property is sufficient. 191 S. W. (Ark.) 953; 51 Ark. 410; 52 Ark. 371; 109 Ark. 552.
   Wood, J.

This action was instituted by the appellees against the appellants to foreclose a chattel mortgage on certain personal property of the appellant, J. W. Kennedy, and to recover the value of certain cotton bought by the appellant, Lesser-Goldman Cotton Company (hereafter called company), from the appellant, Kennedy, grown in the year 1920, on which the appellees claim a mortgage lien. At the time of the execution of the mortgage in question appellee, A. V. Hembree, was in the mercantile business in Morrilton, Arkansas, under the firm name of A. V. Hembree & Son. Later he was adjudged a bankrupt, and his assets sold. He and the other 'appellees bought in the notes and accounts at the bankrupt sale of A. V. Hembree & Son. Upon the trial of the cause a decree was rendered in favor of the appellees against the appellants, from which is this appeal.

1. The company contends that the mortgage executed by Kennedy to Hembree, if otherwise valid, was never filed as provided by law, and did not become constructive notice to third parties because the name A. V. Hembree & Son was printed on the back of the mortgage, under the indorsement, “This instrument is to be filed but not recorded;” that the printing of the name A. V. Hembree & Son was not a signature within the meaning of § 7384, Crawford & Moses’ Digest. This contention of appellant cannot be sustained, for the reasons set forth in Leach v. Bald Knob State Bank, post p. 91, which cause rules this on the point under consideration.

2. Both appellants Kennedy and the company deny that Kennedy mortgaged his cotton crop, and contend that the mortgage upon its face does not sufficiently describe the cotton crop to charge a purchaser thereof with notice. The issue as to whether or not appellant Kennedy intended, and attempted, to mortgage his cotton crop grown in the year 1920 to A. Y. Hembree & Son is purely one of fact, and it could serve no useful purpose as a precedent to set out in detail and argue the testimony upon which the trial court found that Kennedy did execute a mortgage on his crop for the year 1920 to Hembree & Son. Suffice it to say that we have considered the testimony, and are convinced that the finding of the court on this issue is not clearly against the preponderance of the evidence.

The issue of whether or not the description in the mortgage is sufficient to describe the cotton crop so as to charge a purchaser thereof with notice is one of law. The property described in the mortgage is as follows:

Entire crop of cotton grown during the year 1920 on Welbourne Place, in Watson Township, Conway County, Arkansas, or any and all crops of corn and cotton I may have an interest in during the year 19......in said county, Arkansas.”

In the case of Johnson v. Grissard, 51 Ark. 410, the description in the mortgage was “all my crop of corn and cotton or other produce that I may raise, or in which I may in any manner have an interest, for the year 1884, in Faulkner County, Arkansas.” In that case we held that the description could be made certain by extrinsic evidence, and that the record of the conveyance was constructive notice of the mortgagee’s lien on the crop mentioned.

In the case of Storthz v. Smith, 109 Ark. 552, the description in the mortgage was very similar to the description in the mortgage under review, and we held in that case that the description was sufficient to give notice fo all parties of the lien on any crop raised by the mortgagor in Faulkner County, tlie same being the county named in which the crop was grown.

These cases rule the case in hand, and it becomes wholly immaterial whether there was a mistake in naming the place on which the cotton was grown or the township in which the place was situated upon which the cotton was grown. The decree of the chancery court is in all things correct, and it is therefore affirmed.


text:
    Leach v. Bald Knob State Bank.
    Opinion delivered March 3, 1924.
    1. Mortgages — indorsement op chattel mortgage. — A chattel mortgage on file in the clerk’s office, which had the printed indorsement: “This instrument to be filed but not recorded,” followed by the printed signature of the mortgagee, is constructive notice to. a purchaser of the crop.
    2. Mortgages — authority to pile. — It will be presumed from the fact of a chattel mortgage .being filed in the office of the recorder that such filing w&s authorized.
    Appeal from White Chancery Court; John E. Martineau, Chancellor;
    affirmed.

      John E. Miller and C. E. Yinglmg, for .appellant.
    There was no substantial compliance with the statute with reference to signing the indorsement on the mortgage directing it to be filed but not recorded. C. & M. Digest, § 7384. The mortgagee here was a corporation, which could only file the instrument through an agent or attorney, and the indorsement must necessarily have been • signed by agent or attorney. The deed of trust was written on a printed form of the corporation, and the required indorsement was evidently printed by the printer at the time the form was printed. Certainly he cannot be said to have had authority to make the indorsement. 130 Ark. 287-290; 37 Ark. 507; 43 Ark. 144; 52 Ark. 164; 83 Ark. 109; 121 Ark. 346; 105 N. C. 131.

      Culbert L. Pearce, for appellee.

      The indorsement and signature thereto are sufficient. Substantial compliance with the statute is all that is required. 40 Ark. 431; 52 Ark. 167; 60 Ark. 112; 112 Ark. 118; 121 Ark. 349; 130 Ark. 287. A printed signature is as effective as a written one. 2 N. E. 299; 37 Minn. 250, 5 A. S. R. 841; 73 Conn. 341; 43 Ky. 226; 144 la. 80; 101 Ark. 144; 37 L. E. A. (N. S.) 35'2; 120 la. 518; L. E. A. 1917B, 381; 177 Pac. 707; 7 A. L. R. 670.
   Wood, J.

This is an action by the appellee against the appellant. The appellee, in its complaint, alleged that it was entitled to the possession of certain personal property by virtue of a chattel deed of trust executed by the owners of the property to the “Big Bend Plantation Company,” a corporation, to secure certain notes, and that the appellee had become the owner of one of the notes for value before maturity; that the appellant was claiming an interest in the property also under a deed of trust which had been executed by the owners subsequent to the chattel deed of trust under which the appellee claims. The deed of trust under which the appellee claims was executed June 26, 1920, and had printed on the back of same the following: “This instrument to be filed but not recorded. Big Bend Plantation Company, West Point, Arkansas.”

It was marked filed on the 10th day of November, 1920, at 8 o’clock, a. m., signed Elmer W. Smith, circuit clerk and ex-officio recorder.

The deed of trust under which the appellant claims was filed on May 17, 1921, in the office of the recorder of deeds of White County, Arkansas. The deeds of trust covered the same property. The appellant had no actual notice of the claim of the appellee to the property at the time the deed of trust under which he claims was filed for record. The chancery court held that the deed of trust under which the appellee claims was superior, and gave the appellee the right to the property included therein as against the appellant, and rendered a decree in favor of the appellee against the appellant in the sum of $252.78. from which is this appeal.

The only question presented by this appeal is whether or not the words “Big Bend Plantation Company,” printed on the back of the deed - of trust, following the words “This instrument is to be filed but not recorded,” were sufficient to cause the deed of trust, under which the appellee claims, to be filed in the recorder’s office of White County so as to give the appellee a prior and. superior lien on the property to the lien of the deed of trust under which the appellant claims.

Section 7384 of Crawford & Moses’ Digest provides as follows: “Whenever any mortgage or conveyance intended to operate as a mortgage of personal property, or any deed of trust upon personal property, shall be filed with any recorder of this State, upon which is indorsed the following words, ‘This instrument is to be filed, but -not recorded,’ and which indorsement is signed by the mortgagee, his agent or attorney, the said instrument, when so received, shall be marked ‘Filed’ by the recorder, with the time of filing upon the bdck of said instrument; and he shall file the same in his office, and it shall be a lien upon the property therein described from the time of filing, and the same shall be kept for the inspection of all persons interested; and such instrument shall thenceforth be notice to all the world of the contents thereof, without further recording.”

In Nix v. Watts, 121 Ark. 349, we said: “The effect of our decisions upon this statute is to make any indorsement on the mortgage of the import required by the statute sufficient.”

In Continental Supply Company v. Thomas, 130 Ark. 287, we said: “This eourt has held that a substantial compliance with the statute is all that is required in order to create a lien good as against strangers on the personal property described in a chattel mortgage.”

In the more recent case of McReynolds v. First National Bank, 156 Ark. 291, the mortgage was indorsed ‘ ‘ This instrument is to be filed, but not recorded. ’ ’ After these words was the signature “Citizens’ Bank.” In that case it was sought to reverse the decree on the ground that it was not shown that the hank signed the indorsement. Answering this contention, we said: “If is true there is nothing in the indorsement to show that it was duly authorized by the board of directors. * * * The mortgage was delivered to the recorder of deeds to be filed but not recorded, as provided by the statute. The indorsement was in the language of the statute, and bore the signature of the mortgagee. Under the circumstances it is fairly inferable that the signature of the mortgagee was placed there by some one having authority to do so.”

In Lee v. Vaughan’s Seed Store, 101 Ark. 68, there was an alleged contract signed by appellant, and the name of appellee was printed in capital' letters in the body of the contract, but was not written or printed at the bottom of the contract, where the signature of appellant appeared, nor was the name of appellee written anywhere in the instrument by the agent of appellee. This court held that the alleged contract was not signed by the appellee, within the meaning of the statute of frauds. We said: “There must be a writing, stamping or printing of the name by the party to be charged, in person or through a duly authorized agent, with the intention of authenticating and finally adopting the writing as his own.”

Learned counsel for the appellant, and also for the appellee, rely upon that case as supporting their respective contentions. They cannot both be correct. The case is authority for the contention of the appellee, because the name of the party sought to be charged by the purported contract in that case was not printed or signed in any place in the instrument where it could be said that it was proper to place the signature with the intention of making it the final signature of the party to be charged. The printing of the name of the party to be charged in the body of the instrument in that case, we held, did not constitute a signing thereof within the meaning of the statute of frauds, because the body of the instrument showed that it was intended to be further executed, and the printing of the name was not a final signature. But in the case at bar tbe printing of the name of the mortgagee, “Big Bend Plantation Company,” was in the very place on the instrument where it had' to be in order to authenticate the same for filing. The name, “Big Bend Plantation Company,” following the words “This instrument is to be filed, but not recorded,” is in exact compliance with the requirements of the statute as to the signing of the name of the mortgagee, where the purpose is to have the mortgage filed but not recorded.

The Honorable James B. McDonough, of the Fort Smith bar, has contributed a valuable article, entitled “Statutes of Frauds, Signature, and' Waiver,” to the Central Law Journal, vol. 74, at p. 339. Among other things he says: “It is true that the signature, whatever it may be, must be made with the intention to authenticate the instrument. It is not necessary that the signature should be in writing, nor is it necessary that it should be subscribed to the contract. A printed or stamped name is sufficient, if intended as a signature.” He cites, to support his statement, 20 Cyc.,. p. 274-5, and the cases there collected, which are quite numerous. Other cases tó the same effect are cited in the brief of counsel for the appellee.

Our statutes, supra, require the name of the mortgagee to be signed to the words, “This instrument is to be filed, but not recorded,” indorsed on the back of the instrument, and whenever the name appears at that place, whether it be written or printed, it is sufficient; and where the mortgagee is a corporation,, as it was in the case in hand, it is a sufficient signature, under the statutev where the name of the corporation is printed, following the indorsement, where the signature of the corporation must appear.

It appears from the agreed statement of facts in this ease that the deed of trust under which the appellee claims was executed to the Big Bend Plantation Company. This instrument was filed on the 10th day of November, 1920, at 18 o’clock a. m., in the office' of the recorder of deeds and mortgages in White County. If must be inferred from the fact that it was so filed that the instrument was placed in the recorder’s office by some one who had the authority to do so. McReynolds v. First National Bank, supra. It follows that the deed of trust under which appellee claims was a first lien on the property in controversy, and that appellee’s rights therein are prior and superior to the rights of appellant. The trial court ruled correctly in so holding, and its decree is therefore affirmed.


text:
    McKinney v. Ragland & Company.
    Opinion delivered March 3, 1924.
    Frauds, statute of — delivery to carrier — jury question. — Whether a shipment of cotton by the seller under a shipper’s order bill of lading, with directions to notify buyer, was such a delivery as took a parol contract out of the statute of frauds, was a jury question where there was evidence that it was agreed that title should pass when the cotton was so delivered.
    Appeal from Jefferson Circuit Court; T. G. Parham, Judge;
    reversed.

      George Brown and Brockman é Lucas, for appellants.
    There was evidence from which the jury could have found that there was an acceptance of the property, taking the contract out of the statute of frauds. It was therefore error to take the case from the jury. 137 Ark. 397. The facts distinguished the case from Richardson v. Fowler, 154 Ark. 92.

      Crawford $ Hooker, for appellees.
    Delivery to a common carrier, consigned to shipper’s order, is not a delivery to the purchaser, -so as to take the contract out of the statute of frauds. 137 Ark. 401; 250 S. W. (Ark.) 24; 249 S. W. (Ark.) 982; 154 Ark. 92-95; 116 Ark. 198; 111 Ark. 521.
   Wood, J.

This is an action by the appellants against the appellees to recover damages for an alleged breach of contract. The appellants alleged that appellants and appellees entered into a contract whereby appellants sold to appellees 258 bales of cotton of the value of $20,543; that appellees breached the contract by refusing to pay for the cotton. Whereupon the appellants resold the cotton in order to minimize their damages, and the best available price they could obtain was $19,122; that the difference between the contract price at the time the cotton was sold and delivered to appellees and the price appellants obtained for the cotton amounted to the sum of $1,805, for which the appellants pray judgment.

The appellees, in their answer, denied the allegations of the complaint, and pleaded, in defense to the action, the statute of frauds. N. A. McKinney testified that, about the 20th day of February, 1922, a man by the name of Stone, representing the appellees, came to appellant’s place of business at Rison, Arkansas, and took samples of 258 bales of cotton. Witness called up one of the Raglands, of the firm of appellees, and asked him to make a price on the cotton, and, if he could not do so, to send the samples to Camden to a man there who wished to buy. The result of the negotiations was that Rag-land offered the witness 17% cents per pound for the cotton, which the witness accepted. The cotton was to be delivered f. o. b. cars at Rison, on the platform. Witness proceeded to deliver the cotton on the platform of the railway company at Rison for shipment to the appellees at Pine Bluff, Arkansas. He did not leave out a single bale that Stone had taken samples of. After most of the cotton was on the platform, on the second day ■after the contract was entered into, Ragland called up witness, and asked witness not to ship the cotton that evening. He did not say he was not going to take it. Witness told Ragland that the cotton was in a dangerous place on the platform, and might get burned from passing trains. Ragland told witness that he would call again in an hour. In about an hour he called witness and said, ‘ ‘ The clouds have blown away, and everything looks clear. I think everything will turn out all right, and. I have insured your cotton for $10,000.”

Witness considered that he had sold the cotton to appellees, and he drew on appellees for the price of the cotton, to he paid for at Bison. The cotton was all to be paid for when it arrived at the Pine Bluff compress. Witness did not know that Ragland would not take the cotton until he refused to pay the draft.

Witness was particular about having the cotton insured, because he retained a lien on it for the purchase price, and was anxious to protect his vendor’s lien.

The cotton delivered was the identical cotton, bale for hale, that Stone asked samples of. When appellees refused to pay the draft, witness resold the cotton in Pine Bluff, at the suggestion of Ragland to try to sell the same and save any loss. Witness sold the cotton on March 20, 1922, for the best available price. It brought 16 cents per pound.

Ragland & Company told witness that they would not take it and pay for it, because they did not have the money. On cross-examination witness testified that on February 22, 1922, Fitzhugh, of the firm of appellees, called witness over the telephone, and said he would take the cotton. The next day, the 23d, he told witness not to ship the cotton that evening. Witness had a contract with appellees to attach the draft to the hill of lading on arrival of the cotton. Witness shipped the cotton on the 25th of February, and wrote the appellees a letter, saying:

• “I am shipping you today the cotton sold to you' by telephone Wednesday.”

N. E. McKinney, of the firm of appellants, testified that he went with Stone, and helped him gather the samples. The 258 hales of cotton sold to appellees at YlVé cents would have brought $20,543.15. It was sold for 16 cents, making the net difference $1,805.15. In a conversation witness had over the telephone with appellees, they wanted to know if it would be all right for them to pay the drayage costs and appellants to take the cotton hack, and witness told them “no.” They wanted to pay all damages, and have appellants take the cotton hack. Witness went to Pine Bluff about the third day after the sale. They had not told witness before that they were not going to take the cotton, but would not answer the telephone. When witness went to Pine Bluff, appellees told witness that the firm appellees had sold the cotton to was about to lay down on them. They showed witness a telegram from that firm, saying: “Cancel the McKinney cotton.” Appellee gave no other reason why they would not take the cotton and accept the draft. The bill of lading was made out “R. A. McKinney & Sons, notify Ragland & Company,” what is generally called shipper’s orders. The draft was attached to the bill of lading. The first witness knew that appellees were not going to take the cotton was when they refused to pay the draft. The cotton had then left Rison.

Ragland Fitzhugh, of the firm of appellees, testified that, about the 22d day of February, 1922, he told Stone to go to Rison and get samples of McKinney’s cotton. Stone came back with the samples. Witness got in communication with a Dallas man, who agreed to take the cotton at a certain price. Then witness called up McKinney, and bought the cotton. The price was 17% cents, subject to redrawn compress samples and compress weight. Witness wired the man in Texas that he had made the purchase. The next day the Texas man canceled his order. Witness then wired McKinney right away. Witness bought 177 bales, with the privilege of four or five bales over. He did not agree to buy 258 bales, and never had the samples of that number. Within two or three days after that McKinney asked what appellees were going to do about it, and witness told him that the bank would not allow apnellees to carry anv cotton, so they could not pay for it. Witness showed McKinney the telegram, and he knew definitely when he came into the office that appellees were not going to take the cotton. McKinney shipped 258 bales, when witness had bought but 177. The first witness knew of the 258 bales was when the invoice came in. That number was not discussed over the telephone. Some samples came from appellants after that, but witness did not open them. Stone was working for Ragland & Company when he took the samples, and was authorized to take them. Witness denied that he had a conversation with Walter Wilkins, Jr., about the 23d or 24th of February, in which he told Wilkins that he had bought 258 bales of cotton from McKinney at Rison. McKinney was at Pine Bluff the next day after witness telephoned him that he could not take the cotton. The bill of lading was dated the 25th of February, 1922, and witness thought that it had not reached him when McKinney came.

F. R. Ragland, of the firm of appellees, testified substantially the same as Fitzhugh. He identified and introduced in evidence a letter which, he stated, was received from the appellants two days after appellees had declined to take the cotton. The letter was dated February 25, and said, in substance, that appellants that day were shipping the cotton that they had sold to the appellees by telephone February 22, 1922, as per contract. The letter also stated that the cotton should reach Pine Bluff Monday or Tuesday, and that appellants were drawing a draft, payable on arrival of the cotton, with shipper’s order, bill of lading attached, advising appellees that the draft and bill -of lading were being forwarded through the Bank of Rison to the Simmons National Bank of Pine Bluff, for appellees’ convenience, and requesting the appellees to take up the draft nromptlv on arrival of the cotton, as per agreement. This witness further testified that cotton was worth, on the day witness refused to take it, eighteen and forty-two hundredths cents per pound, and was higher on that dav than it was on the day witness bought it from appellants.

Walter Wilkins testified, in rebuttal for the appellants, to the effect that he saw Ragland Fitzhugh two or three da.vs before voung McKinney was in witness’ office, and Fitzhugh said: “Well, I have just bought 258 bales of cotton, and I would like to bny some from you.” Witness then replied: “Rags, whom did you buy it from?” Fitzhugh replied: “From N. A. McKinney at Rison.”

N. E. McKinney testified, in rebuttal, that he remembered the day he came to appellees’ office in Pine Bluff and asked them what they were going to do about the cotton. The draft and bill of lading had reached appellees before then.

N. A. McKinney testified, in rebuttal, that the contract with Fitzhugh was that the witness should draw a draft payable on arrival of the cotton.

Upon the above testimony the court declared the law as follows: “Under the statute of frauds, in order to constitute a binding contract for the sale of personal property of the value of over $30, there must be one of three things. Either the writing evidencing the contract, or a delivery of part of the goods, or a payment of part of the purchase price. The court holds in this case that a delivery of the cotton, or part of it, to the railroad company, under the bill of lading, consigning the cotton to N. A. McKinney fe.Sons, Pine Bluff, or shipper’s orders, is not such delivery as takes this contract out of the scope of the statute of frauds; and the court instructs you, as a matter of law, to find for the defendant.”

The appellants objected generally to the instruction and specifically to that part of it which directed the jury to return a verdict for defendants. The court overruled appellants’ objections, to which ruling appellants duly excepted. The appellants presented appropriate and correct prayers for instructions submitting to the jury the issues which the evidence in their behalf tended to prove, which prayer the court refused, and appellants duly excepted to the court’s ruling. Judgment was rendered in favor of the appellees, in accordance with the verdict, dismissing the appellants’ complaint and for costs, from which judgment is this appeal.

The jury might have found from the testimony that, on or before February 22, 1922, the appellants sold to the appellees 258 bales of cotton, to be delivered f. o. b. the cars of a common carrier at Rison, Arkansas; that the contract for the sale and purchase of this -cotton was entered into in a conversation between the appellants and appellees over the telephone, after the appellees had examined the cotton by samples taken from each of the 258 bales of cotton; that the appellants delivered the -cotton, pursuant to the contract, to the -common -carrier at Rison, Arkansas, for shipment to Pine Bluff, and had a hill of lading issued therefor and consigned to N. A. McKinney & Sons, notify Ragland & Company. There was testimony to warrant a finding that it was the intention of the parties, when this was done, that the title should pass from the appellants, the sellers, to the appellees, the purchasers. Such being the case, the -court erred in declaring, as a matter of law, that there was not such a delivery of the cotton by the seller and acceptance of the same by the purchaser as to take the case out of the statute of. frauds, and erred in directing the jury to return a verdict in favor of the appellees. See Augusta Cooperage Co. v. Plant, ante p. 49 L. R. vol. 17, No. 1, p. 48. As we view the evidence, it is an issue for the jury to determine whether the contract of sale and purchase was taken out of the statute of frauds, and the court should have submitted this issue to the jury, under proper instructions.

This case under the facts is ruled by the doctrine announced in McGehee v. Yunker & Ronk, 137 Ark. 397, where, among other things, we said: “The rule is that, in the sale of -chattels to be shipped by common carrier, the delivery of the -commodity by the -seller to the purchaser, duly consigned to the purchaser, constitutes a delivery to the purchaser and consummates the sale. The reverse of that rule is that, where the seller -consigns the shipment to his own order, thus manifesting his intention to reserve his dominion and right of disposition over the property, nothing else operating to manifest an intention to pass the title, such consignment does not constitute a delivery to the purchaser.”

We also announced in that case that “these rules of evidence are not violated by allowing oral proof to show what the real intention of the parties to the transaction was with reference to the question of delivery.”

See also John Meeter & Sons v. Paragould Wholesale Grocery Co., 158 Ark. 128, and St. L. S. F. R. Co. v. Allison, 158 Ark. 209.

The appellees contend that the case is ruled under the facts by the doctrine announced in Richardson v. Fowler, 154 Ark. 92-95. In that case we held (quoting syllabus): “Where grain was consigned to shipper’s order, with directions to notify buyer, a delivery to carrier did not pass title to buyer, there being no evidence that the parties intended such delivery to have that effect.”

But the facts in the present case, as we have seen, clearly distinguish it from the ease of Richardson v. Fowler, because here there is testimony from which the jury might found that it was the intention of the parties that the title should pass when the cotton was delivered by the'appellants to the carrier f. o. b. at Rison, Arkansas. It was an issue of fact for the jury, under the evidence, as to whether or not the contract of sale and purchase, as alleged in the appellants’ complaint, was taken out of the statute of frauds. The court therefore erred in not submitting this issue to the jury, and for this error the judgment is reversed, and the case is remanded for a new trial.