text:
    Robinson v. State.
    Opinion delivered May 23, 1921.

      1. Criminal law — evidence—admission by silence. — In a prosecution for rape, resulting in a conviction of assault with intent to commit rape, where the prosecutrix, immediately after the offense was committed, informed her mother she was going to leave home, and her mother replied, “You are no better than your other sister,” such statement, though made in defendant’s hearing, was not competent as an admission by defendant that he had been guilty of improper conduct with the other sister, as it did not call for denial by him, and was hearsay and incompetent, and its admission constituted error prejudicial to defendant.
    2. Criminal law — instruction as to reasonable doubt. — In a prosecution for rape, an instruction defining reasonable doubt as one on which a person would be willing to act in a matter confronting him in the every-day walks of life, was erroneous, as the definition was broad enough to include the trivial affairs of life, when it should have been limited to the important or grave affairs of life.
    3. Criminal law — instruction—general objection. — A general objection to an instruction will reach an inherent defect.
    Appeal from Clay Circuit Court, Western District; R. E. L. Johnson, Judge;
    reversed.

      Oliver & Oliver, for appellant.
    1. The great weight of the evidence is contrary to the verdict.
    2. The court erred in-permitting but two members of the grand jury to testify as to the testimony the prose-cutrix gave before that body. 120 Ark. 160-5; 64 Id. 121. It was error to limit the number of witnesses, and the error was prejudicial. Ib.

      3. It was error to permit Laura Harbison to testify as to ber statement to her mother and her mother’s reply, because (1) it is not shown that the statement was made in appellant’s hearing, and (2) the girl had told her mother she ought to make her man leave her alone, and that she was going to leave home. The statement of the mother in reply that she was no better than her other sister impliedly charged that appellant had been guilty of conduct toward the other sister similar to that which the prosecutrix alleges. It was improper to admit this evidence for a witness may not be impeached by evidence of particular wrongful conduct, except that it may be shown by examination of a witness, or a record judgment that he had been convicted of a felony. C. & M. Dig., § 4187; 100 Ark. 324, 91 Ark. 555 is directly in point. A defendant on trial for crime is entitled to offer in defense evidence of his good character. Ib.; 76 N. C. 216. If the facts are disputed or proof controverted, that view most favorable to defendant must be taken; and if in such view the incompetent testimony would have a tendency to disparage this controverting evidence, then its admission is prejudicial. 91 Ark. 5,55-61; 74 Id. 489. It was prejudicial error to admit this testimony.
    4. It follows that the court erred in giving instruc-. tion No. 14.
    5. The court erred in refusing to permit defendant to excuse from the jury James Button, one of the jurymen, after he had been accepted by both parties. It was prejudicial. 104 Ark. 606.
    6. It was error to give instruction No. 12 on reasonable doubt. 69 Ark. 537.
    7. The court erred in. refusing to give instruction No. 1, as asked by defendant. It states the law correctly, and no other instruction was given covering the proposition. The defendant is presumed to be innocent, and that presumption follows throughout the entire trial.

      J. 8. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.
    1. There was no error in refusing to permit appellant to call but two members of the grand jury to testify as to what Laura Harkison testified to before that body. 64 Ark. 121-4. It was a matter within the sound discretion of the court, and no abuse is shown. 64 Ark. 121; 116 I-d. 30; 42 S. W. 827; note 8, Ann. Cas. 828.
    2. Where no objection is made or exception saved to the admission of evidence in the trial court, the question can not be raised on appeal. 130 Ark. 111. No objections were made nor exceptions saved to the testimony of Laura Harbison. 129 Ark. 316.
    3. Instruction 14 was a correct statement of the law. Where the accused takes the witness stand in his own behalf, he may be impeached as any other witness. 108 Ark. 316; 114 Id. 239.
    4. There was no error in refusing to permit appellant to excuse the juryman, James Button. It was a matter of cound discretion for the trial court, and no abuse of discretion is shown. 13 Ark. 205. See, also, 19 Ark. 156; 20 Id. 36; 40 Id. 515; 134 Id. 197.
    Objections to a juror must be made before he is sworn and impaneled. 29 Ark. 99.
    5. There is no error in instruction 13 on reasonable doubt.. But, if error, defendant did not request a proper one, and there was no error. 74 Ark. 444; 80 Id. 349; 86 Id. 456.
    6. There was no error in refusing instruction No. 1. 109 Ark. 516. Presumption of innocence becomes effective only where theie is absence of proof. 8 B. C. L. 170-1.
    7. The verdict is not contrary to the evidence. The substantial evidence supports it. 135 Ark. 117; 136 Id. 385.
   Humphreys, J.

Appellant was indicted and tried for rape at the January, 1921, term of the Clay Circuit Cnurt. Western District, Second Division, and convicted for an .assault with intent to commit rape, his punishment being fixed at imprisonment in the State penitentiary for five years. From that judgment is this appeal.

The prosecuting witness is a stepdaughter of appellant, and resided in his home, near Corning, at the time it is alleged the offense was committed. She testified that, on the morning of July 11, 1920, while her mother was milking at the water gap, about 100 yards from the house, appellant forcibly obtained carnal knowledge of her; that, when her mother returned to the house, she was in the kitchen, and appellant in the adjoining room fumbling with a trunk; that there was no door between the two rooms; that her mother asked why the house had not been cleaned, and she answered by saying, “You ought to make your man leave me alone; ’ ’ that she then informed her mother she was going to leave home, and her mother replied, “You are no better than your other sister.’’ The statement made by Mrs. Robinson to her daughter, near enough for the jury to have found that appellant heard it, was admitted in evidence, over the proper objection and exception of appellant, and appellant now insists that the court committed reversible error in allowing the statement to go to the jury. The statement, standing alone and disconnected from evidence subsequently adduced, did not imply a charge against appellant that, he had been guilty of similar conduct toward the other sister. Appellant was not called upon, therefore, to make a denial, even if he heard the statement. The statement was not therefore competent evidence as an admission of appellant that he had been guilty of conduct with the other sister, similar to that now charged against him. The statement, however, was purely hearsay evidence and clearly incompetent on that ground. The admission of it constituted reversible error, if prejudicial to the cause of appellant. We think it clearly prejudicial, when considered in connection with the evidence introduced later, tending to show a sexual intimacy between appellant and the other sister.

Appellant also contends that the court erred in giving instruction No. 12 upon reasonable doubt,, which is as follows: “The burden is upon the State to establish its case to your satisfaction beyond a reasonable doubt. This is a wise and sane provision of our law, which is designed in no case to enable any guilty person to escape just punishment, but, on the contrary, to shield and protect the innocent from unjust conviction. It means simply that if, after a consideration of all the facts and- circumstances adduced in proof in the case, there naturally arises in your minds a substantial doubt as to the guilt of the defendant, then it will be your duty to acquit him. It is not a far-fetched or chimerical doubt to be conjured up for the purpose of enabling .a guilty man to escape just punishment, but a reasonable doubt means a doubt that is reasonable, and one upon which you yourselves would be willing to act in any matter with which you might be confronted in the every-day walks of life.” A reasonable doubt is defined in this instruction -as one upon which a person would be willing to act in a matter confronting him in the every-day walks of life. This definition is broad enough to include the trivial affairs of life, and, for that reason, is inherently wrong. It should have been limited to the important or grave affairs of life. In trivial affairs of life, one would act upon a high degree of probability, whereas in important or grave affairs he would want to know to a moral certainty before acting. In the case of Byrd v. State, 69 Ark. 537, this court condemned an instruction which told the jury that “a moral certainty signifies only a high degree of probability;” and further said that “a high degree of probability is not sufficient; for the jury might think there was a high degree of probability that the defendant is guilty, and yet think there is a reasonable doubt as to his guilt from the evidence in the case. ’ ’

The objection to the instruction was general, but a general objection will reach an inherent defect, such as we find here. The court committed reversible error in thu,s defining reasonable doubt.

Other assignments of error are insisted npon for reversal, bnt we deem it unnecessary to discuss them, as some are not well taken, and others will not likely recur upon a new trial.

For the errors indicated the judgment is reversed and the cause remanded for a new trial.


source: Caselaw Access Project

author: McCulloch, C. J.

license: Public Domain

text:
    State v. Eagle Lumber Company.
    Opinion delivered May 30, 1921.
    Taxation — stock of corporation. — Under the rule that the taxable value of the stock of a corporation is ascertained by deducting the value of its tangible property otherwise assessed from -the market value of such stock, the capital stock of a corporation is not taxable where its value did not exceed the aggregate value of its other property assessed in the State.
    Appeal from Ouachita Chancery Court; James M. Barker, Chancellor;
    reversed.

      J. 8. TJtley, Attorney General, Elbert Godwin, Assist- and, and George Vaughcm, special counsel, for appellant.
    1. Foreign and domestic corporations are treated alike in all constitutional and statutory provisions. Const. Ark., art. 12; act No. 19, Acts 1899', p. 18; act 168, Acts 1899, p. 305; act 216, Acts 1901, p. 386; act No. 313, Acts 1907, p. 744; Kirby’s Digest, §§ 824-833; C. & M. Dig., $§ 1825-8.
    Affirmative legislation was necessary to render operative the above constitutional provision, swpra, which has been held “not self-executing. ” 65 Ark. 312, 315; 45 S. W. 988; 60 Ark. 325, 332-3; 30 S. W. 350. The legal status of foreign corporations has been clearly defined in the above several acts. Such corporations are entitled to all the rights and privileges and subject to the same penalties as domestic corporations. C. & M. Digest, ^ 1828. The status of foreign corporations is also well settled by our decisions. 69 Ark. 521; 65 S. W. 465; 69 Ark. 528-9; 71 Ark. 451; 75 S. W: 725; 81 Ark: 304; 98 S. W. 729; 82 Ark. 309. The validity of the acts has been sustained. 82 Ark. 309, 315; 95 Ark. 588; 130 S. W. 583; 114 Ark. 155; 169 S. W. 942.
    Under these decisions foreign corporations are subject to the same control as domestic corporations when they have complied with our laws as to doing business. 140 Ark. 135; 204 U. S. 103; 115 Ark. 524; 81 Id'. 519; 100 S. W. 407; 212 U. S. 322; 69 Ark. 521; 54 Id. 101; 156 U. S. 649; 119 Ark. 314; 173 S. W. 1099; 76 Ark. 303; 89 S. W. 42.
    The taxation of foreign corporations in Arkansas is well settled under our Constitution and laws. Const., art. 16, § 5; 7b., §§ 6, 7.
    The mode of taxation of intangible property is pointed out in our revenue laws. Kirby’s Digest, §■§ 9961-2-3; act March 31, 1883, §§ 42-3; act March 28, 1887, 17,18; Mansf. Dig., §§ 5045-6; Sand. & H. Dig., §§ 6462-3; Kirby’s Dig., §§ 6936-7; C. & M. Dig., §■§ 9961-2-3. See, also, V8 Ark. 187; 85 S. W. 772; 94 Ark. 235; 126 S. W. 727. See especially 128 Ark. 505; 131 Ark. 40; 97 Ark. 254; 138 Id.; 128 Ark. 505; 131 Id. 40; 97 Id. 254; 138 Id. 541. See, also, 251 U. S. 532; 139 Ark. 397; 227 S. W. 770.
    Intangible property of foreign corporations had already been held taxable. 82 Ark. 309; 101 S. W. 748; 63 Ark. 576: 40 S. ~W. 710; 37 L. R. A. 371. Both the tangible and intangible property of foreign corporations is taxable wherever found and where the work is done. 165 U. S. 194; 166 Id. 185; 141 U. S. 18; 130 Pac. 565.
    Our special act of 1893 has been duly approved of. 63 Ark. 576.
    The unit rule is well established in Arkansas for 40 years. 65 S. W. 775; 190 U. S. 413; 94 Ark. 235-7. The unit rule is also well settled and followed in other States. 116 N. C. 441; 21 S. E. 423; 39 S. E. 18; 165 U. S. 194; 13 Peters 586: 143 U. S. 305; 77 N. E. 1195; 31 Id. 238; 61 So. 417; 109 N. T. S. 868; 180 N. W. 108; 110 Atl. 867.
    2. The Arkansas Tax Commission has power to fix and promulgate a uniform basis for a valuation of property for taxation. Under the agreed statement of facts, the property of foreign corporations is clearly taxable. 92 Ark. 492. Tbe Legislature bas provided tbe agency for tbe assessment and taxation of sucb property, and the action of tbe tax officers is conclusive in the absence of a statute to the contrary, and tbe courts have no power to supervise and correct assessments. 92 Ark. 492; 123 S. W. 753; 103 Ark. 127; 145 S. W. 892; 132 Ark. 395; 130 Id. 259.
    3. All inferior political subdivisions must be subordinate to the State in taxation matters. 33 Ark. 497, 690; 42 Id. 54; 34 Id. 224-30; 35 Id. 56-61; 37 Id. 339-345-6; 94 Id. 27; 125 S. W. 1001; 140 Am. St. 103; 27 L. R. A. (N. S.) 255; 30 Ark. 435; 59 Id. 513, 530-1; 27 S. W. 59.
    The Tax Commission’s dominant function is to promote uniformity, and it is its first duty. 127 Ark. 349; 129 Id. 41; 138 Id. 483. See, also, 92 N. E. 7, 10; 64 Id. 661; 58 L. R. A. 949; 95 Am. St. Rep. 280; 31 Ind. App. 224; 150 Ind. 216; 49 N. E. 14; 52 Pac. 954; 54 Id. 974;' 6 Okla. 757; 141 N. W. 839, 822; 115 N. W. 647; 155 Pac. 416-19; 134 Id. 688; 135 Id. 609-10.
    Tbe General Assembly bas tbe power, in the absence of constitutional inhibition, to require that all property be assessed at its full cash value and to provide tbe plan necessary to effectuate that result. 138 Pac. 1010; 56 Col. 512; 186 Pac. 812.
    It is tbe duty of this court to sustain tbe act creating tbe Tax Commission and tbe powers necessary to properly carry it into effect.

      Gaugham, & Sifford, for appellee.
    Under tbe agreed statement of facts, tbe Eagle Lumber Company paid taxes on its property upon an assessment equal to that of other similar property throughout tbe State, and tbe court below properly held that it was not liable for tbe $1,000. The decree for $1,000 should be reversed, and in other respects affirmed.
   McCulloch, C. J.

The Attorney General instituted this action on behalf of the State of Arkansas against the defendant, Eagle Lumber Company, a foreign corporation, to recover unpaid taxes alleged to be due on its capital stock since the time it began doing business in this State in the year 1899' up to the time of the commencement of the suit in 1919. The facts are undisputed, and are set forth in a -written stipulation signed by counsel on both sides.

The defendant is a private corporation, organized under the laws of the State of Iowa, and it began doing business in the State of Arkansas on March 3, 1899, and complied with the laws of the State with respect to foreign corporations doing business in the State. Its authorized and paid-up capital stock was originally $250,-000, and subsequently raised to $500,000, “all of which,” according to the recitals of the agreed statement of facts, “has always been employed in Arkansas.” The written stipulation as to facts reads as follows:

“(2) The tangible assets of the company consist wholly of a sawmill, lumber, logs and merchandise at Eagle Mills, and of the timber lands situated in Ouachita, Dallas and Calhoun counties, all in the State of Arkansas. It owns no property located elsewhere, and for all the years covered by this suit its sole business was the manufacture and sale of timber products at Eagle Mills, Arkansas. ’ ’
íí * * * J >
“ (4) The company has paid the State and local taxes on all of its tangible property, real and personal, including certain ‘moneys and credits’ to the proper authorities in Arkansas in accordance with the revenue laws of this Státe.”
“ (5) It is agreed as a stipulation of fact that, during the period of years covered by the complaint herein, the shares of stock representing the capital stock of the company had the same value and no greater than the aggregate property owned by the corporation, all of whose physical assets had an actual situs within the State of Arkansas. It is further stipulated that during said period the property of the company assessed in Arkansas ■was valued for taxation in the several counties in which it was located at an amount equal to the actual average assessment of other similar property in the State of Arkansas.”
“Provided, it is further agreed that if the court holds that the company as a foreign corporation is in any event taxable in Arkansas upon its intangible property or its capital stock, the extent of its liability for such taxes is stipulated to be one thousand ($1,000) dollars and no more, unless the proper basis for assessment be held to be fifty (50%) per cent of true value as per the Tax Commission order recited in paragraph 6 herein.”
(< # # # ))
“(7) It is further agreed that if all issues of law are finally determined adversely to the defendant, judgment will be entered against the company for two thousand dollars (or in lieu thereof one thousand dollars in the event the court upholds as the true taxable criterion the actual average assessed basis rather than the Tax Commission’s 50% basis. * * *”

The court rendered judgment in favor of the State for the recovery of the sum of $1,000, and both parties have appealed.

The Attorney General and his associate counsel argue with much earnestness the question whether the intangible property or capital stock of a foreign corporation doing business in this State is subject to assessment against the corporation for the purposes of taxation. That question is very thoroughly covered by the learned counsel on each side. But it seems to us that under the stipulation of facts in this case it is not proper for us to decide that question for the reason that the capital stock has no value in excess of the value of the property otherwise taxed in this State and that the corporation owns' no property elsewhere, either tangible or intangible. The substance of the agreement is that all of the capital of the corporation is and has always been employed in the State of Arkansas, that all of its tangible assets are situated in the State of Arkansas, and that it owns no property located elsewhere, that the shares of stock have the same value as the aggregate property owned by the corporation, and that it has paid taxes on all of its tangible property, including moneys and credits.

The rule announced in the decisions of this court is that the taxable value of shares of stock of a corporation is ascertained by deducting the value of its tangible property otherwise assessed from the market value of the shares of stock. State v. Bodcaw Lumber Co., 128 Ark. 505; State v. Fort Smith Lumber Company, 131 Ark. 40; Crossett Lumber Co. v. State, 139 Ark. 397; State v. Gloster Lumber Company, 147 Ark. 461. Under the agreement of facts there is no taxable value of the capital stock, as it does not exceed the aggregate value of the other property assessed in this State. Nor is it shown in the agreed statement of facts that the corporation owns any other property elsewhere. We do not, therefore, feel at liberty to follow counsel far enough in the argument to decide the question not applicable to the facts set forth in the record.

The court erred in rendering a decree against the defendant for any sum, and the decree is therefore, on the appeal of the defendant, reversed, and the cause is dismissed.


text:
    Cosby v. Hurst.
    Opinion delivered May 30, 1921.
    1. Attorney and client — lien on evidence of debt. — At common law an attorney has a lien upon his client’s evidence of indebtedness in his hands, but not upon the debt itself, and hence a complaint in equity seeking to fix a lien on the proceeds of the client’s insurance policy did not state facts which would confer -a lien where it did not -allege that the policy or other evidence, if any, was in the possession of the attorney.
    2. Equity — inadequacy of legal remedy. — As the basis of a suit in equity for the sole purpose of recovery of money is the inadequacy of legal remedies, equity has no jurisdiction of a suit by an attorney against his client and an insurance company to recover compensation for his efforts in effecting a settlement of a claim under an insurance policy on the ground of the client’s insolvency; it not appearing that garnishment at law would not afford an adequate remedy.
    8. Equity — pleading.—Nothing is added to a complaint in equity seeking to enforce an equitable garnishment by the formal statement that plaintiff has no adequate remedy at law; such statement being a mere conclusion.
    Appeal from Washington Chancery Court; B. F. Me-Mahan, Chancellor;
    reversed.

      John Mayes, for appellant.
    1. It was error to refuse to transfer the cause to the law court.
    2. It was error in overruling appellant’s demurrer. Appellee had no lien as an attorney under our statute. C. & M. Digest, § 6304; 47 Ark. 86; 140 Ark. 558; 109 Id. 171; 8 U. S. (Law. Ed.), Forde v. Lawson.

      W. N. Ivie and II. L. Pearson, for appellee.
    Appellee was entitled to a common-law lien and the allegations of insolvency were sufficient to give the chancery court jurisdiction. 6 C. J., p. 784, § 395; 2 A. L. R. 474.
    2. Equitable garnishment has always been recognized in courts of equity and the statutes of this State. C. & M. Dig., §§ 4366-7, 4906; 56 Ark. 476. The chancery court had jurisdiction of the subject-matter, and was clearly right in overruling the demurrer and motion to transfer.
   McCulloch, C. J.

Appellee is an attorney at law and a member of the Washington County bar, and he instituted this action against appellant in the chancery court of that county to recover the amount of fees alleged to be due for professional services rendered in connection with a claim of appellant against an insurance company,. It is alleged in the complaint that appellant made claim in the sum of $1,000 against the Fayetteville Mutual ’ Benefit Association under a policy issued to appellant’s wife, now deceased, that appellant employed appellee to collect the claim from said insur-anee company, and that appellee ‘ 'prepared the necessary papers and presented the matter to the Fayetteville Mutual Benefit Association in the usual manner;” that, after such presentation and after investigation made by the said company, the latter notified appellee that the claim would be allowed and would be paid as soon as reached in the regular order of business; that subsequently appellee was notified by the insurance company that payment would be made on June 15, 1919, and that a cheek was made out by the company payable to appel-lee as attorney for appellant, but that, after the performance of said services by appellee and before the delivery of the check, appellant employed another attorney to handle the claim for him and notified the said insurance company not to turn over the check or make any payment to appellee. The complaint contains the further allegation that appellant is insolvent, and the prayer of the complaint is that a lien be declared in appellee’s favor for the amount of his fee in the sum of $150 on said claim against the insurance company, which said company was made a defendant in the action. Appellant appeared by attorney and demurred to the complaint on the ground that it did not state a cause of action within the .jurisdiction of the chancery court and also filed a motion to transfer the cause to the circuit court. The court overruled the demurrer and the motion to transfer, and, the defendant declining to plead further, decree was rendered against him and against the Fayetteville Mutual Benefit Association for the recovery of the sum of $150, which was declared to be a lien on appellant’s claim against said insurance company.

It is conceded by counsel for appellee that there is no statutory lien in appellee’s favor for the reason that there was no judgment rendered and no action instituted on appellant’s claim against the insurance company. • Crawford & Moses’ Digest, sections 628 and 6304 But it is contended that appellant had a common-law lien, independent of the statute, on the papers in his hands evidencing appellant’s claim against the insurance company. The validity of this sort of claim was recognized hy this court in the case of Gist v. Hanley, 33 Ark. 233. But the difficulty with appellee’s contention is that he has not set forth in his complaint a state of facts which would confer a lien, in that he does not allege that the policy or other evidence, if any, of appellant’s claim against the insurance company was turned over to him and still remains in his possession. Such a lien at common law was, as we understand, on the evidence of indebtedness in the hands of the attorney, and not on the debt itself. This being true, appellee has not shown in the complaint that he had in his possession any papers on which he was entitled to a lien.

It is next contended by counsel for appellee in support of the decree that the allegations of insolvency were sufficient to confer jurisdiction on the chancery court, and that the insurance company, as appellant’s debtor, having been made a party to the suit, appellee is entitled to an equitable garnishment. The mere allegation of insolvency was not, however, sufficient to show that the remedy at law was inadequate, and it does not show a cause of action cognizable in equity. The basis of a suit in equity for the sole purpose of recovery of money is the inadequacy of legal remedies. Davis v. Arkansas Fire Ins. Co., 63 Ark. 412; Euclid Avenue National Bank v. Judkins, 66 Ark. 486; Horstmann v. LaFargue, 140 Ark. 558; Henslee v. Mobley, 148 Ark. 181. There are no allegations which set forth grounds for equitable relief. Newmcm v. Neal, 147 Ark. 439. Nothing is added to the force of the complaint by the formal statement that ap-pellee had no adequate remedy at law. That was a mere conclusion, and according to the facts alleged there was no reason why a garnishment in an action at law would not have afforded an adequate remedy.

The court erred in refusing to transfer the cause to the circuit court, and for that reason the decree is reversed and the cause is remanded with directions to transfer the cause, unless further grounds are stated for equitable relief.


text:
    Gregg v. Sanders.
    Opinion delivered May 30, 1921.
    Eminent domain — just compensation — enhancement in value.— The general rule that where the public use for which a man’s land is taken so enhances the value of the remainder as to make it of greater value than the whole was before the taking, the owner in such case has received just compensation in benefits, has no application to a taking by an improvement district, as the benefits by the improvement can not be deducted from the compensation to be allowed to a property owner for that portion of his property which is taken and used in the construction of the improvement.
    Appeal from Jackson Circuit Court; Dene H. Coleman, Judge;
    affirmed.
    - John W. & J os. M. Stay ton., for appellants.
    1. The court erred in sustaining the demurrer to thé answer.
    The Constitution contains no limitations upon the consideration of benefits as just compensation for land taken under the power of eminent domain except when exercised through the instrumentality of a corporation. 64 Ark.' 559. The Newport Levee District is not a private corporation, but a body politic and corporate, a public corporation, and the act creating it is constitutional. 59 Ark. 533. Art. 12, section 9, of our Constitution does not -apply to anything except condemnation proceedings by private corporations. 64 Ark. 555; 78 Id. 580; 120 Id. 239. There is nothing in article 12, section 9, Constitution, to support the lower court in sustaining the demurrer. The rights of the parties here are controlled by section 22, article 2 of our Constitution, which declares that private property shall not be taken for public use without just compensation. C. & M. Digest, title Eminent Domain. Where the public use for which a portion of a man’s land is taken so enhances the value of the re mainder as to make it of greater value than the whole was before the taking,the owner has received" just compensation” in benefits. 64 Ark. 559; 114 Id. 334. The court should have overruled the demurrer.

      Geo. A. Hillhouse and Brundidge & Neelly, for appel-lees.
    No question was raised as to the right of the corporation to take private property without paying therefor, and the only question is the constitutionality of the act. The act is constitutional. The questions raised in the Cribbs and Benedict case are not now before this court, and the rule does not apply. 114 Ark. 334. Under, the proof the judgment is right, and should be affirmed.
   McCulloch, C. J.

The Newport Levee District was created ’as an improvement district by the Legislature (Acts 1917, page 1285), for the purpose of constructing a levee along the hank of White River, through the city of Newport and contiguous territory. The right of eminent domain was conferred for the purpose of acquiring lands to he used in the construction of the levee. The cost of the improvement included, of course, all costs of acquiring rights-of-way and other expenses to be paid for by assessments on benefits accruing to the real property affected by the improvement. Appellees ■ are the .owners of a tract of land containing approximately seventeen acres-situated just outside of the city of Newport and fronting on White River, and in the construction of the levee the district took and used about five acres of said land of appellees, all of which land so taken fronted on White River. The remainder of the land of appellees is within the bounds of the district, and the benefits thereto from the construction of the levee have, of course, been assessed and will be taxed proportionately for the construction of the improvement. It is not shown in the present record how the district acquired the right-of-way over the land of appellees, and, as no point is made in this case on that proposition, we assume that the lands were taken without the exercise of the right of eminent domain in the manner prescribed by the statute.

Appllees instituted this action against the district to recover. damages laid in the aggregate sum of $3,500 and specified as being the snm of $3,000, the value of five acres taken and used by the district, and the further sum of $500 for damages to the remainder of the land. Appellants (said district and its commissioners), in addition to denials of the allegations of the complaint with r espect to the extent of the injury and amount of damages recoverable, pleaded that “the benefits received by said land, local nnd peculiar to the same over and above the benefit' which said tract receives in common with the other lands in Newport Levee District greatly exceeds the value of the land taken by said district for the right-of-way of its levee over the lands of the plaintiffs.” •

The cause was tried before a jury on conflicting testimony in regard to the value of the land taken and the injury or benefit to the remaining land not taken, and. the jury returned a verdict in favor of appellees, fixing the damages at the aggregate sum of $1,500, without apportioning the same between the items of damages charged in the complaint.

The .court in one of its instructions told the jury, over the objections of appellants, that, in ascertaining the amount of damages for taking the land, the jury “should not take into consideration any benefits which may accrue by the building 'of the levee to the remainder of the original tract.” An exception was saved to this ruling of the court, and the only question presented on this appeal is whether or not the court erred in holding that appellees’ right of recovery for the value of the lands taken and used by the district in the construction of the levee could not be reduced by the benefits accruing to the remainder of the tract.

The only provision in the Constitution of this State in which it is attempted to .regulate or restrict the right of eminent domain for public purposes is in section 22, article 2 of the Constitution of 1874, which declares that “private property shall not be taken, appropriated or damaged for public use without just compensation therefor. ” The inquiry which, therefore, must always arise in the interpretation of a statute authorizing the taking of property or in any proceeding to recover compensation therefor is: What is “just compensation” under the given state of facts'? Counsel for appellants contend that decisions of this court in Cribbs v. Benedict, 64 Ark. 555, and Paragould v. Milner, 114 Ark. 334, have established the rule of “just compensation” in oases similar to this to be that ‘ ‘where the public use for which a portion of a man’s land is taken so enhances the value of the remainder as to make it of greater value than the whole was before the taking, the owner in suoh case has received just compensation in benefits.” Such is undoubtedly the rule established by the great weight of authority in cases where property taken for general public use and compensation is to be awarded at the expense of the public. Many cases on that subject are referred to in Cribbs v. Benedict, supra, and there are many other cases to the same effect decided ■ before that time and since.

The rule has been generally applied in instances of the taking of land for use as a public highway or park or such other public use where the compensation is to be awarded out of public funds. The case of Paragould v. Milner, supra, is an instance of that character, and we have no doubt as to the correctness of that rule as applied to the facts of such a case. Cribbs v. Benedict, supra, was, however, a case where there was involved an improvement district formed under general statutes for the purpose of constructing a drainage ditch, and we announced the same rule in that case. The question of damages was not, however, involved in that case further than to determine whether or not the statute which failed to provide for the payment of damages was valid, and this rule was merely stated as one of the reasons for holding the statute to be valid without providing for the payment of compensation other than impliedly by the benefits which would accrue from the construction of the improvement. This was stated only as one of the reasons why the statute was valid, and the decision was undoubtedly correct, even though we conclude that this particular reason for so holding was unsound.

We have reached the conclusion that that rule should not be applied in measuring the compensation to be paid to a property owner whose land is taken for the construction of a local improvement so as to reduce the amount to be recovered to the extent of the benefits accruing to the other lands in the district which are specially taxed for the purpose of paying for the improvement.

It is found, on examination, that all of the oases cited in Cribbs v. Benedict, supra, are those which relate to payment of compensation for property taken for public use where the question of special benefits arising from a purely local improvement to be paid for by special assessments did not arise. In a few cases like the present one, the authorities are to the contrary. It is readily seen that the application of this rule to the payment of compensation for property taken by an improvement district constitutes a double charge for the benefits accruing to the remainder of an owner’s land where a part has been taken for the construction of the improvement. The benefit to the remaining portion of the land is paid for by the owner in special assessments levied to defray the cost of the improvement, and, if the owner is compelled to credit the amount of these benefits on the compensation to which he is entitled for that portion of his land which is taken, the effect is to charge him twice for the same benefits. In other words, he will be paying for the benefits by the assessments which are levied against his property and also the second time when he- credits them on the compensation which is due him for his property which is taken.

Page & Jones, in their work on Taxation by Assessment (vol. 1, section 67), states the rule as follows:

“Whatever method of exacting compensation from the property owner for benefits inuring to him is adopted, the property owner can not be charged twice for the same benefit. * * * So if, under the local statute, certain benefits may be made tbe basis of a local assessment against the property, snch benefits can not be set off against damages, as the property owner ean subsequently be compelled to pay therefor in such assessment proceedings. ’ ’

This rule was announced by the Supreme Judicial Court of Massachusetts in the case of Garvey v. Inhabitants of Revere, 187 Mass. 545, though that court has steadily adhered to the general rule hereinbefore stated that compensation 'may be made for property taken for public use in the benefits to accrue to the remainder of the property of the same owner. This doctrine was also announced by Judge Mitchell with much force in the case of State v. District Court, 66 Minn. 161. In that case the court dealt with a statute, one section of which authorized the appraisal of damages for property taken for use in providing a local improvement and another section which provided for the assessment of such special benefits which was to form the basis of taxes levied to defray the cost of the improvement. The Minnesota court had, in other decisions, announced the general rule as hereinbefore recited with reference to the reduction of damages by compensation in benefits, and reiterated that rule in the case just cited, but held that the rule had no application to an instance where the cost of the improvement for which the land was taken was to be defrayed by the imposition of taxes based upon special benefits. The court said: “But counsel’s contention is that where, as under this statute, the cost of the acquisition of the land is to be defrayed by special assessments upon the property specially benefited thereby, a deduction of special benefits to the remainder of the tract from the value of the part taken is unconstitutional, for the reason that this remainder is subject to assessment, to the extent of these same special benefits, to defray this same cost, which would result either in the owner being taxed twice for the same improvement, or else in de- ' priving him of his property without just compensation. It is very clear that, if the statute will accomplish this result, it, or some part of it, is unconstitutional and void. We need not stop to inquire what are benefits ‘resulting from sucb taking,’ which are to be deducted in the condemnation proceedings, whether they are only those resulting from the mere taking of the land by the city, disassociated from the appropriation and improvement for the purpose for which it is taken, or whether they also include those that will result from such appropriation and improvement, although it is very difficult to conceive what benefits can result to the residue of a tract from the mere act of taking a part of it. But it is very evident from the language of section 8 that the benefits for which assessments are there required include the same benefits which are required to be deducted by section 7. Moreover, the language of section 8 is mandatory, and not merely permissive. It not only requires such assessments to be made, but also that they shall be made on all property benefited. Hence, if all the provisions of both sections axe carried into effect, the result will be either that the landowner will be deprived of his property without just compensation, or else he will be taxed unequally, by b.eing compelled to pay twice for the same thing.”

It is true that in that case the court held that the two sections were in conflict, and that the last one, which provided for taxation upon the whole of the benefits without taking into consideration the damages, was void. We have no such question as that in the present case, but the decision of the Minnesota court is persuasive to the extent that it lays down the principle that it would constitute a double charge against the property owner to make him contribute out of benefits received, to the cost of improvement by paying assessments, and also by compelling him to credit the benefits which accrue from the improvement on the compensation to which he is entitled for damages on account of other portions of his land being taken.

The theory upon which rests the proceedings for the construction of local improvements by the imposition of special assessments on contiguous property is that the improvement is public in its nature to- the extent that the right of eminent domain may be authorized, but it is local to the extent that special benefits accrue to the adjoining property. The improvement is paid for out of special assessments based on such benefits, and when property is taken for use in the construction of the improvement full compensation must be awarded in order to satisfy the requirements of the Constitution without deduction of the benefits which are to accrue to the owner on the remainder of his property. Damages to the property not taken may, however, be balanced off against the benefits which accrue, for damages must necessarily be taken into account in the estimate of benefits. There are authorities to the effect that, if the benefits to the remaining property exceed the damages to the property taken, such benefits may be used in the reduction of the damages, and the excessive benefits over damages may be. the basis of a local assessment. And it has been held that it is proper “to deduct the amount of the special tax levied for a given improvement from the amount of the benefits received from such improvement, and to treat the amount thus obtained as the net amount of benefits to be deducted from the amount of damages. ’ ’ 1 Hamilton on Taxation by Assessment, section 67; Carroll v. City of Marshall, 99 Mo. App. 464; Village of Grant Park v. Trah, 218 Ill. 516. There is no question, however, in the facts of the present case as to whether the benefits will exceed the amount of taxes assessed against them. It does not appear even that the jury awarded any damages for injury to the remainder of the property hot taken, though they may have done so under the testimony and instructions of the court. No point is raised that the benefits exceeded the taxes levied and should be, to that extent, credited on the compensation to be allowed for the damages to the property taken. At any rate we are convinced that the true rule is that, whether the taxes levied amount to the appraised benefits or not, there can be no deduction of any part of the benefits from the compensation to be allowed to a property-owner for that portion of his property which is taken and used in the construction of the improvement, for the reason that he pays for his benefits in taxes, the same as other property owners, and it would destroy the rule of equality to require him to contribute to the common nse any part of his property without compensation.

There was no error committed, and the judgment should be affirmed. It is so ordered.


text:
    Wilson v. Mattix.
    Opinion delivered May 30, 1921.
    1. Drains — authority of county court to dissolve district. — As the statutes do not authorize the county court to dissolve a drainage district aiter it has been organized, it can not exercise that authority.
    2. Courts — jurisdiction of county court to restrain unlawful ACTS. — The county court has no jurisdiction to relieve property owners by injunction against unlawful acts of the commissioners of a drainage district in attempting to proceed under a void organization.
    Appeal from Craighead Circuit Court, Western District; B. II. Dudley, Judge;
    affirmed.

      E. M. Mayes, for appellants.
    The motion to dismiss filed in the county court and circuit court was nothing but a demurrer, and admits that the reported cost of improvement as shown by the preliminary survey is less than $60,000; that the cost as returned by the commissioners approximated $85,000 ; that the petition alleges and the demurrer admits that the commissioners now undertake to sell bonds in the district in the sum of $130,000, which is excessive and prohibitory.
    To obtain an outlet for a drainage system, commissioners may construct ditches, do other work on land beyond the jurisdiction of the county court, or which for other reasons can not be included in the district. In that event they shall have the right to condemn a right-of-way for such drain or other construction, and the proceedings shall be the same that are now provided by law for the condemnation of the right-of-way for railroads, telegraphs and telephones. Such a ditch or drain beyond the limits of the district shall be the property of the district, and no person, corporation or other drainage district, not assessed, shall have the right to dig any lateral drain connecting therewith without paying compensation, to be fixed by the circuit court. 0. & M. Digest, § 3629.
    The complaint alleges and the demurrer admits that all of the proceedings of the commissioners should be presented and filed in the county court. A demurrer admits the truth of all the allegations of the complaint. 218 S. W. 381; 141 Ark. 8. The circuit court should have sustained the findings of the county court upon the demurrer filed by appellees, and erred in not so doing.

      Basil Baker and Horace SIoom, for appellees.
    1. The order of the county court is void, as it had no jurisdiction. It can not act except as empowered by statute. 115 Ark. 130-9. The grant of jurisdiction to the county court by our Constitution is not self-executing. There must be legislative action. 4 Ark. 473; 28 Id. 359. The county court has no jurisdiction to act unless authorized by statute. C. & M. Digest, §§ 3607, 3655, 3637, 3630.
    2. Corporations can not be dissolved by courts, except insofar as the Legislature by statute permits. 81 Ark. 391, 402; Fletcher’s Cyc. of Corporations, chap. 64. For a parallel case, see 71 Ark. 4.
    3. The county court has no jurisdiction to issue injunctions. 84 Ark. 341. Nor can it cancel contracts. 96 Ark. 251, 263. County courts can not exercise jurisdiction in personam in plenary proceedings of this nature involving third parties except as to the allowance of claims against the county. The jurisdiction of the county court is wholly in rem. 2 Crawford’s Digest, “Courts,” p. 1275, •§ 40. The present suit is clearly one in personam.

    The county court can not appoint committees of tax payers to take over the affairs of drainage districts.

      Nonjoinder of necessary or proper parties defendant may be waived by failure to object at the proper time, but the nonjoinder of an indispensable party defendant leaves the court powerless until he is brought in. C. & M. Dig., § 1101.
    4. Ño cause of action was stated. 83 Ark. 344-6. The validity of the assessment of benefits was settled by order of the county court. As to any errors in assessment, the remedy was by appeal. A collateral attack will not now be permitted. C. & M. Dig., § 3165; 138 Ark. 131.
    The validity of the assessment of benefits can not be challenged without setting forth the facts rendering the assessment invalid or improper.. 139 Ark. 280.
    In this case the complaint does not state what the value of the land will be after the construction and completion of the improvement. The validity of the assessment of benefits can only be challenged in the statutory manner as prescribed by O. & M. Dig., § 3165; 125 Ark. 163-7; 139 Id. 282.
    An error in the estimate cost does not vitiate an assessment of benefits. 213 Pa. St. 123; 62 Atl. 516; 176 -N. W. 373. See, also, 137 Ark. 354, 365; 86 Id. 46.
   McCulloch, C. J.

This is a proceeding instituted in the county court of Craighead County to dissolve a drainage district which had been previously organized pursuant to the general statute providing' for the organization of such districts by an order of the county court. Crawford & Moses’ Digest, sections 3607 et seq.

Appellants are the owners of real property in the district, and, after the district had been organized and put into operation by the assessment of benefits, issuance of bonds, the letting of a contract for the construction of the improvement and after the work of constructing the improvement had been be,gun, they filed their petition in the county court praying for an order of the court dissolving the district. They alleged, in substance, that the lands in the district were generally uncultivated and of little value, that the cost of the construction of the improvement when considered in comparison with the value of the lands was prohibitive, and that the imposition of the tax on the land would he so burdensome as to constitute confiscation of the property, and that the commissioners had increased the cost from the sum of $60,000, as first estimated, to the sum of $130,000, as finally estimated as the actual cost of the construction. It was further alleged in the petition that the commissioners were proceeding with the construction of the drainage ditch without first obtaining an outlet for the discharge of the water. There was also a general allegation that the improvement, as contracted for, is improvident, and will not result in the benefit of the property in the district. There are other allegations not of sufficient importance to mention.

The commissioners of the district appeared by their attorneys as parties for the purpose of resisting the order of dissolution, and on the hearing the county -court made an order declaring the district dissolved, and appointed a committee of property owners “to ascertain all claims and charges of any and all persons or firms 'against said district and to- ascertain the financial condition of said district.” The order of the court further enjoined the commissioners from proceeding with the construction of the ditch and ordered that the funds on hand to- the credit of the district be applied to the payment of current accounts against the district and the- remainder tendered to the purchaser of the bonds, and further that, if the committee should find that bonds had been issued and sold and the money received by the commissioners, the sum found to be due “shall be by the clerk of this court extended against said lands on the ditch tax book * * * in proportion as assessments have been made and filed by the commissioners of said district, and the same shall be collected by the collector of Craighead County for the year 1921 and paid out in full liquidation of the proper claims against said district. ’ ’ In other words, the court dissolved the district and made a general order winding up its affairs and provided for payment of its indebtedness. The commissioners filed an affidavit and bond for appeal, and prosecuted their appeal to the circuit court, and in that court they filed a written motion to dismiss the cause on the ground that the county court had no jurisdiction to adjudicate the dissolution of the district. The circuit court sustained the motion and dismissed the proceedings. The record of that court recites that the cause was heard on the motion of appellees, and the record brought up from the county court. An appeal has been duly prosecuted to this court.

The statute confers no authority upon the county court to dissolve drainage districts. Crawford & Moses’ Digest, sections 3607 et seq. On the contrary, the statute (section 3609) provides that the order of the county court establishing such a district “shall have all of the force of a judgment,” and that if no appeal from said order be taken within twenty days ‘ ‘ such judgment shall be deemed conclusive and binding upon all the real property -within the bounds of the district, and upon the owners thereof.” Another section of the statute (3630) provides that the district shall not cease to exist upon the completion of the system, but shall continue for the purpose of maintaining the ditches and keeping them clear from obstructions, etc. A search of the statute from end to end fails to disclose any provision which, either in express terms or by implication, can be construed to confer authority on the county court to dissolve the district after it has been organized. The county court, in the absence of a statute, can not exercise that authority. Morrilton Waterworks Imp. Dist. v. Earl, 71 Ark. 4; Hall v. Callaway, 94 Ark. 49; Taylor v. Wallace, 143 Ark. 67.

The case last cited is conclusive of the question now under discussion. In that case we held that, inasmuch as the general statue in regard to the organization of road improvement districts (act 338 of the General Assembly of 1915) did not confer authority upon the county court to remove commissioners, the power could not be exercised by that court, In disposing of the question, we said: “The power conferred upon-the county court to appoint three road commissioners at the time of mating the order establishing the road district, pursuant to the terms of the act, is a special, and not a general power. No such power exists in the county court except by enactment of the General Assembly.. The general power of supervision by the county court over roads, conferred by the 'Constitution, invests said court with no such power or authority. The delegation of power being special, the extent thereof is limited to the express grant.” Nor does the county court possess jurisdiction to exercise the relief to the property owners-by injunction against unlawful acts of the commissioners in attempting to proceed under a void organization. If it be conceded that the petition contains allegations which would justify relief in the proper court, it is certain that the county court has no jurisdiction to grant the relief sought in the prayer of the petition.

Judgment affirmed.


author: McCulloch, O. J.

text:
    Arkansas Anthracite Coal Company v. State.
    Opinion delivered May 30, 1921.
    Taxation — domestic corporations — franchise tax. — Under Crawford & Moses’ Dig., §§ 9799-9801, providing that every corporation organized and doing business under the laws of the State shall make a report to the Tax Commission, which shall report the same to the Auditor, who shall charge and certify to the 'Treasurer for collection from such corporation a tax of one-tenth of one per cent, on that part of its subscribed and issued capital stock employed in this State, held that domestic corporations owning coal lands which they have leased to others are liable to the tax, though they transact no other active business in the State.
    Appeal from Pulasld Chancery Court; J. E. Mar-tineau, Chancellor;
    affirmed.

      Rose, Hemingivay, (Jantrell & Loughborough, for appellants,

      The purpose of the act is only to levy a franchise tax upon those corporations which are doing business within the State, and as the appellant corporations are not doing any business, but are merely holding mineral rights for sale or lease, they are not within the purview of act No. 112, Acts of 1911, p. 67, or the amendatory act No. 122, Acts 1917. A foreign corporation who leases mines for a term of years is not doing business within the meaning of the statute. 237 IT. S. 28; 228 Id. 295, 303-5; 220 Id. 145; 163 Pac. 148; 99 Kan. 671.

      J. 8. Utley, Attorney General; A. L. Rotenberry and J. C. Marshall, special counsel, for appellee.
    The case cited by appellant, 227 S. W. 411, does not settle the question, nor are 237 U. S. 28 and others cited in point. See 91 N. E. 266; 194 S. ’W. 820; 163 Pac. 148; 96 N. Y. S. 745, affirmed in 97 N. E. 1194; 87 N. E. Rep. 434. The corporations were clearly liable for the tax, as they were doing business in the State.
   McCulloch, O. J.

Two consolidated actions are involved in this appeal, each instituted by the State of Arkansas against domestic corporations to recover unpaid franchise taxes under the statute which provides that every corporation “organized and doing business under the laws of this State for nrofit shall make a report in writing to the Arkansas Tax Commission,” the form and substance of such report being specified, and that upon the filing of such report the Tax Commission shall report the same to the Auditor of State, “who shall charge and certify to the Treasurer of State for collection from such corporation * * * a tax of one-tenth of one per cent, upon that part of its subscribed or issued capital employed in'Arkansas.” Crawford & Moses’ Digest §§ 9799-9801.

The articles of incorporation of the Arkansas Anthracite Coal Company define its purposes to be “to buy, own and sell lands, mineral rights, oil, gas and timber rights; conduct 'mining operations; to run a' general mercantile business; to manufacture lumber; to build, own and operate switches and tramroads; to buy, own and sell stocks of railroads and other corporations; to operate stone quarries; to manufacture stone and brick; to lav out cities.” This corporation has a paid-up capital of $597,000, which is invested in mining rights and coal lands siutated in this State.

The articles of incorporation of the Arkansas Anthracite Mining Company define its purposes to be, “the mining of coal and other minerals; the operation of railroads, steamboats, barges and tramroads; the buying, owning and selling of lands, merchandise, stocks in other companies; the selling of coal and other minerals, and the establishment of agencies for that purpose.” This corporation has a paid up capital of $100,000, and invested the same as the other corporations.

The property owned by the two corporations constitutes a single coal field of about 15,000 acres. The coal company has made a lease of a tract of 328 acres of its mineral rights to a certain person, which said lease lapsed without any development work being done. The mining company leased 160 acres to an individual who assigned the lease to another corporation which has mined the coal and paid royalties to the mining company annually from the year 1918 up to the commencement of these actions. The coal company owns all of the capital stock of the mining company, which it received in consideration of a conveyance of 5,000 acres of its mineral right holdings to the mining company. This conveyance bo the mining company was executed to enable the latter to mortgage the property for a loan of $50,000 to use in paying a bonus to a certain railroad company for building a railroad to the coal field. The reason for this was that it did not suit the purposes of the coal company to incur this obligation .and the mining company was organized for the purpose of assuming the obligation under the arrangement just described. Neither of the corporations has transacted any other active business, if it be beld that the above-recited transactions constitute “active business.” The trial court rendered a decree for the recovery from each of the corporations of the several amounts claimed by the State as franchise taxes.

It is the contention of learned counsel for the corporations that neither have been ‘ ‘ doing business ’ ’ within the meaning of the statute, and that neither is -liable for the payment of the franchise tax under the statute. The contention is that the corporations have been and are holding the property in which the capital stock is invested merely for the purpose of doing business in the future, and that this does not fall within the terms of the statute. Counsel argue that the-words “doing business,” as used in the statute, should be interpreted to mean activity in the prosecution of the business specified in the charter. We do not so interpret the statute.- The purpose is to exact the payment of a tax on the exercise of the franchise (St. Louis S. W. Ry. Co. v. Static, 106 Ark. 321), and a corporation neceessarily exercises its franchise in the investment of its capital in other property, for it derives its authority to make the investment from the franchise granted by the State. It can not function at all except under the powers granted to it in the franchise. The statute applies to all active corporations— those which are functioning and not those which are dormant. A corporation must be both organized and active in order to be liable for the franchise tax. A corporation may have been duly organized and may remain or become inactive and dormant, but, if it functions at all, it i>s. as before stated, alive and active. This view of the meaning of the statute is strengthened by the fact that the tax is laid according to the amount of capital stock “employed” in this State, which shows that the employment of capital stock was construed as constituting the doing of business in the exercise of the franchise.

This view is also very much strengthened by the provision in section 9820, Crawford & Moses’ Digest, to the effect that all corporations, both domestic and foreign, “qualifying * * * to do business in the State or organized under tbe laws of this State,” shall pay an annual franchise tax of $10, where such corporation has no capital stock employed in this State or has less than $13,333 of its capital stock employed. This shows that the lawmakers intended to impose a franchise tax on all live corporations in this State, whether actively engaged in business or not”

In the recent case of State v. Gloster Lumber Company, 147 Ark. 461, we decided that a domestic corporation was, under a statute applicable “ to all corporations doing business in this State,” liable to general taxes on its stock, all of which was invested in property and business wholly situated and operated in another State, and in disposing of the question we said: “The theory of counsel for appellee is that a corporation organized under the laws of this State and domiciled here does not come under the requirement of the statute if it has no tangible property'here and is not visibly operating some kind of business here in this State. That is not, we think, the correct interpretation of the statute. The words used in the statute are very broad. ‘All corporations doing business in this State’ is the language used. A corporation organized and domiciled here is necessarily doing business here if it is doing business at all. Its life and existence are here, and all of its business activities necessarily emanate here primarily if it functions at all. Its domicile is the fountain head of all its activities.”

The same principle controls in the present case for the reasons already stated. Our decision in the recent case of Linton v. Erie Ozark Mining Co., 147 Ark. 331, has no application, for it only reached to the question that a foreign corporation which had not filed its articles of incorporation and obtained permission to do business in the State was not, by merely owning property in the State and leasing it, doing business here within the meaning of the statute, which prohibits corporations from doing business in the State without complying with the laws thereof. The decisions of the Supreme Court of the United States cited by counsel are not applicable, for they relate to a Federal statute imposing an excise tax on the net income of corporations doing business in any of the States or Territories of the United States. Flint v. Stone Tracy Co., 220 U. S. 107; McCoach v. Minehill, etc., Rd. Co., 228 U. S. 295; United States v. Emery, 237 U. S. 28. In Flint v. Stone Tracy Co., supra, which was followed in the later oases, the court said: “It is’ therefore apparent, giving all the words- of the statute effect, that the tax is imposed not upon the franchises of the corporations irrespective of their use in business, nor upon the property of the corporation, but upon the doing of corporate or insurance business and with respect to the carrying on thereof * *

We conclude, therefore, that the decree of the chancery court is correct, and the same is affirmed.


author: Wood, J.

text:
    Woodall v. State.
    Opinion delivered May 30, 1921.
    1. Criminal law — opinion as to accused’s sanity. — It was not error, in a murder case, to refuse to permit a non-expert witness to give her opinion as to accused’s sanity until the witness should state the facts upon which her opinion was based.
    2. Homicide — insanity as defense. — Where one is on trial for murder in the first degree, and the State proves the killing under circumstances that would constitute murder in the first degree if the homicide was committed by a sane person, then if the killing is admitted and insanity is interposed as a defense, such defense can not avail unless it appears from a preponderance of the evidence, first, that at the time of the killing the defendant was under such a defect of reason from disease of the mind as not to know the nature and quality of the act he was doing; or second, if he did know it, that he did not know that he was doing what was wrong; or, thvrd, if he knew the nature and quality of the act and knew it was wrong, that he was under such duress of mental disease as to be incapable of choosing between right and wrong as to the act done, and unable, because of the disease, to resist the doing of the wrong act, which was the result solely of his mental disease.

      3. Homicide — emotional oh moral insanity. — One accused of mur- , der who is otherwise sane will not be excused because the killing was committed while his reason is temporarily dethroned, not by disease but by anger, jealousy or other passion; nor will he be excused because he has become so morally depraved that his conscience ceases to control or influence his actions.
    4. Criminal law — delusional insanity. — The rule that where one labors under partial insanity only, and is in other respects sane, he must be considered in the same situation as to responsibility as if the facts with respect to which the delusion exists were real, is limited in its application solely to those cases in which the testimony proves, or tends to prove, that the disease is in its first or earliest stage of development; but where the disease has progressed or evoluted to its second or persecutory stage, or to subsequent stages, and its form and hallucinations are such as to indicate that its victim, because of the disease, is no longer able to control his will and actions, then the defense of insanity is available, though he knows the nature and quality of his act and that it is wrong.
    5. Criminal law — questions of law and fact. — Where the defense of insanity is interposed, it is an issue of fact for the jury to determine whether the accused at the time of the alleged act was afflicted with a mental disease, and an issue of law whether the mental disease is such as to render him irresponsible.
    Appeal from White Circuit Court; J. M. Jackson, Judge;
    reversed.

      J. N. Rachels and G. G. McKay, for appellant.
    The court erred in permitting the witness, Mrs. Woodall, to answer the question propounded to her, and in its instructions to the jury both in giving and refusing. No. 3 given for the State was abstract, misleading, prejudicial and erroneous. It was also error to refuse instructions Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14,15, 16, 17 and 19, which are the law of this case.

      J. S. U.tley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.
    1. There was no error in refusing a continuance, as refusing a motion for continuance is a matter addressed to the sound discretion of the court. 97 Ark. 643; 102 Id. 513; 105 Id. 698; 109 Id. 407. The motion was not made a ground for motion for new trial. 40 Ark. 114.

      2. There was no error in refusing to permit Mrs. 'Woodall to answer the questions asked her. She did not qualify by showing her relation, acquaintance, knowledge, information, etc. Besides appellant got the full benefit of her testimony and can not complain. The error of excluding statements of a witness will not be considered on appeal if appellant did not offer to show what the statement was. 88 Ark. 562; 87 Id. 123; 133 Id. 599.
    3. No exceptions were saved to the instructions nor carried into the motion for new trial, and on appeal all such objections will be treated as waived or abandoned. 73 Ark. 455; 105 Id. 253; 132 Ark. 596. .
    4. Written instruction No.’4 is-a correct statement of the law of necessity as a defense as was also Nos. 5 and 6, 8, 10, etc. 54 Ark. 588; 55 Id. 259; 54 Id. 588.
    „ Appellant had a fair and impartial trial, the evidence fully sustains the verdict and there were no errors of law.
   Wood, J.

The appellant was indicted for the crime of murder in the first degree in the killing of L. S. Budi-sill. He entered a plea of not guilty, and the only defense offered was insanity. He was convicted of murder in the second degree, and, from a judgment sentencing him to a period of twenty years in the State penitentiary, he appeals.

First. Mrs. B-. S. Woodall testified that she was the mother of the appellant. The record ishows that during the progress of her examination the following took place:

“Q. Was he (Lee Woodall) at the time of the killing, and had he been for some time prior thereto, on the subject of his trouble with L. S. Budisill s'ane or insane?

Mr. Miller (prosecuting attorney]: I object on the ground that the witness has not detailed any of the facts and circumstances sufficient to express an opinion.

Court: The objection will be sustained to it; I don’t think she has detailed sufficient facts :and circumstances to testify as to that.

Mr. Rachels (attorney for defendant): We might as well settle this.

Court: I am familiar with the decision, and it is not necessary to argue the matter; I have ruled on it and you can save your exceptions.

Mr. Rachels: Note my exceptions. He objects to my qualifying the witness.

. Mr. Miller: No, I do not.

Court: She has not detailed facts sufficient to justify her in expressing an opinion as to his sanity, yet ¡she may be able to do so after while. ’ ’

The record shows that, after the above ruling, Mrs. Woodall was examined at length and testified in detail as to the appellant’s conversation with her concerning his trouble with Rudisill and his manner during such, conversation, ¡showing what appellant said and did and how his mind was affected. At the conclusion, she was asked:

“O. I belies™ you said awhile ago that upon the question of his trouble with Rudisill he was insane?

. A. He was.”

Counsel for appellant contends here, that the court erred in not permitting the witness during the early part of her examination to answer the question propounded to her as above set forth. The ruling of the court at that iuncture was. correct. For at this time the witness had not detailed sufficiently the facts upon which she based her opinion. The record shows that the witness later during her examination fully stated facts upon which her opinion was based and was permitted to express the opinion that on the subject of his trouble with Rudisill, appellant was insane. The ruling of the court was in conformity with the rule announced by this court in Rolling v. State, 54 Ark. 588-598-599; Smith v. State, 55 Ark. 259-62; Schumann v. State, 106 Ark. 362; Dewein v. State, 120 Ark. 302-311; Rankins v. State, 133 Ark, 38-63,

Second. The appellant next contends that the court erred in its ruling in giving certain instructions on its own motion and in refusing prayers of appellant for instructions on the issue of insanity. The court, on its own motion, gave fourteen instructions on this issue, and it appears that counsel for appellant presented nineteen prayers for instructions on the same issue, which the court refused.

In Bell v. State, 120 Ark., at page 553, this court,,, having under consideration rulings of the trial court in giving and refusing prayers for instructions on the issue of insanity where the crime charged was murder in the first degree, announced the law as follows: “Where one is on trial for murder in the first degree, and the State proves the killing under circumstances that would constitute murder in the first degree if the homicide was committed by a sane person, then, if the killing is admitted and insanity is interposed as a defense, such defense can not avail unless it appears from a preponderance of the evidence, first, that at the time of the killing the defendant was under such a defect of reason from disease of the mind as not to know the nature and quality of the act he was doing; or, second, if he did know it, that he did not know that he was doing what was wrong; or, third, if he knew the nature and quality of the act, and knew that it was wrong, that he was under such duress of mental disease as to he incapable of choosing between right and wrong as to the act done, and unable, because of the disease, to resist the doing of the wrong act which was the result solely of his mental disease.” * * *

“But it must be remembered that one who is otherwise sanp will not be excused from a crime he has committed while his reason is temporarily dethroned not by disease, but by anger, jealousy or other passion; nor will he be excused because he has become so morally depraved ‘that his conscience ceases to control or influence his actions.’ In other words, neither so-called ‘emotional’ nor ‘moral’ insanity will justify or excuse a crime.”

In commenting npon the numerous prayers for instructions, at page 556, we said: “It is not surprising that, in the multiplicity of prayers for instructions on this issue, many of them conflicting, long, and involved, that the trial court, being under the necessity of ruling promptly and not having the time to investigate, should have failed to give a consistent and harmonious charge in conformity with the law as above announced, which we find to be the case. We can not comment upon - each assignment of error and upon the separate prayers in which error appears without unnecessarily extending this opinion, * * *. Instead of the numerous instructions that were given, it would have been far better if the court, after announcing the law as to the burden of proof and declaring the above test's, had instructed the jury that if they believed from the preponderance of the evidence that the appellant was insane they should acquit him, otherwise they should convict him of the crime charged. If counsel had succinctly presented their respective contentions in a few7- plain prayers embodying the above tests, doubtless the errors that crept into the court’s charge would have been avoided.”

What we have said in Bell v. State is opposite to this case. In the case at bar the court did not heed the admonition and follow the suggestion of this court in Bell v. State, supra, and as a result we find that the court’s charge on the issue of insanity is inconsistent and well calculated to mislead the jury. While some of the instructions given by the court on its own motion correctly declare the law in conformity with the law a's announced by this court in Bell v. State, supra, other instructions were entirely out of harmony with the law as there declared and were contradictory and inconsistent in themselves. The same may be said with reference to the prayers of appellant for instructions. While some of them declared the law in conformity with previous decisions of this court, others did not.

The court'told the jury in several of the written instructions given on its own motion that, if the appellant at the time of the hilling was laboring under a mental delusion, and the killing was the result of such delusion, and the appellant was unable to control his act, the jury should acquit him, provided they found the imaginary facts, if real, would justify or excuse the crime. For instance, the court gave instruction No. 10, as follows: “You are further instructed that, upon a consideration of all the testimony in the whole case, including the testimony tending to show defendant’s in-sanitv or mental incapacity for the commission of crime, if you find he was, at the time of the act of killing, laboring under a mental delusion ‘and was unable to control his act, then you should acquit the defendant, provided you find that the imaginary facts, if real, would justify or excuse the crime.”

In Bolling v. State, supra, we approved the rules announced in McNaughten’s case, and one of them is to the effect that “if the defendant labors under a partial delusion only and is in other respects sane, he must be considered in the same situation as to responsibility as if the facts with respect to which the delusion exists were real.” We also recognized this as announcing a correct legal principle in Smith v. State, 55 Ark. 259-263. It will be observed that the court in its instructions applied this principle broadly, and without qualification or limitation, which makes all the instructions containing this provision in direct conflict with the rule or doctrine as announced in the third test in Bell v. State, supra, and which had been firmly established in previous decisions of this court. Williams v. State, 50 Ark. 511-518; Green v. State, 64 Ark. 523-34; Metropolitan Life Ins. Co. v. Shane, 98 Ark. 132.

Commenting upon the legal tests laid down in Bell v. State, supra, we there said: ‘ ‘ The second and third of these tests are applicable in every case where the evidence tends to prove, as it does here, that the accused, at the time of the alleged criminal act, was afflicted with that disease of the mind termed by medical experts, alienists and authors on medical jurisprudence as ‘paranoia,’ which, has progressed to the ‘stage of persecution.’ This disease manifests itself and is characterized by systematized delusions; that is, a delusion based on false premises, pursued by a logical process of reasoning to an insane conclusion. Taylor v. McClintock, supra. The victim of this disease, in its first stage, has apparently a sound mind upon all subjects except those coming within the particular sphere of his delusion, and he may then he able to control his. actions with reference to his delusion. Hence the reason for the rule announced in McNaughten’sCase,10 Clark & Finley’s Rep.199-211, and recognized by us in Bolling v. State, supra, that where one labors under .a partial delusion only, and is not in other respects insane, he must be considered in the same situation as to responsibility as if the facts with respect to which the delusion exists were real. But where the disease has progressed to its second stage, according to Wharton & Stille, in their excellent work on Medical Jurisprudence, pp. 828-1031b, ‘the patient passes on to the formation or delusion of suspicion and persecution. He believes he is the object of evil designs of others; he is talked about and maligned; he is shunned; his plans are thwarted; he is unjustly dealt with; he is defrauded of his rights. # * # He may fasten his suspicion upon some particular person or persons. He meditates plans of protection, and then of resentment. He has now become the persecuted paranoiac, the most dangerous of all the insane. ’

“In this the second stage of the disease the mind of the victim of paranoia may have become so completely dominated by the disease as to render him incapable of controlling his actions with reference to the subject-matter of his delusions. The disease may have progressed to the extent that, in the language of Dean on Med. Jur. 497, ‘the reason has lost its empire over the passions and the actions by which they are manifested to such a degree that the individual can neither repress the former nor abstain from the latter.’ But he adds, ‘it does not follow that he may not be in possession of his senses. The maniac may judge correctly of his actions without being in a condition to repress his passions and to abstain from the acts of violence to which they impel him.’ Hence, the reason for the third test mentioned above, approved by the best of modern authorities.”

In the more recent ease of Hankins v. State, 133 Ark. 38, at pages 47-48, we said: "In approving these rules of McNaugh ten’s case, the court did not hold that the doctrine of irresistible impulse caused by disease of the mind would not be a good defense in cases where the evidence adduced warranted it. In Bolling v. State, supra, the court was of the opinion that the evidence did not warrant an instruction on irresistible impulse, * * *. Now, it seems to us, .en passant, that this court, in Bolling v. State, supra, did not have the correct view of the evidence on the issue of irresistible impulse, for the testimony tended to prove that Bolling was afflicted with paranoia or delusional insanity which had progressed to the stage of suspicion and persecution, in which stage the homicidal tendency or mania is most pronounced.”

. In the record now before us, there is testimony tending to prove that the appellant was afflicted with a disease of the brain, known as "partial insanity,” "monomania” or, in modem psychiatry, as "paranoia,” and that this disease had progressed to its second, or perse-cutory stage. There is also testimony from which the jury might have found that it had not progressed to that stage, and also testimony from which the jury might have found that the appellant was not insane at all. Such being the testimony, it was peculiarly a question of fact for the jury to determine whether or not the appellant was sane or insane according to the tests laid down in Bell v. State, supra. The rule that "where one labors under a partial delusion only, and is in other respects sane, he must be considered as if the facts with respect to which the delusion exists were real,” according to the doctrine of Bell v. State, supra, and Hankins v. State, supra, is limited in its application solely to those cases where the testimony proves or tends to prove that the disease — paranoia—is in its first or earliest stage of development.

Paranoia is a progressive disease of the brain.. Webster defines it as follows: “a chronic form of insanity characterized by very gradual impairment of the intellect, systematized delusion, and usually by delusions of persecution or mandatory delusions producing homicidial tendency. In its mild form paranoia may consist in the well-marked crotchetiness exhibited by persons commonly called cranks.” See, also, New Int. Ene. “Paranoia;” 1 Wharton & .Stille, Med. Jur., p. 827, 1031 (■a), (b), (c); 2 Clevenger’s Med. Jur. of Insanity, p. S60 et seq. 805; Americana; Ency. 'Brit. In its first and earliest stage the manifestations of delusion indicating a disease of the mind are yet so mild and unpronounced that its victim, notwithstanding his mental delusion, may still be able to exercise his will and control his actions with reference to these delusions. Where such is the case, there is no room for the doctrine of irresistible impulse caused by a disease of the brain. But, where the disease has progressed or evoluted to its second or per-secutory stage, or subsequent stages, and its form and hallucinations are such as to indicate that its victim, because of the disease, is no longer able to control his will and actions, then the doctrine of irresistible impulse as laid down in the third test, supra, is applicable. See Legal Medicine (Stewart), p. 405, section 158.

Where the defense is insanity, as was said in Ean-kms v. State, supra, “it is an issue of fact for the jury to determine whether the accused at the time of the alleged act was afflicted with a mental disease, and an issue of law as to whether the mental disease is .such as to render him irresponsible. Therefore, the issue of responsibility or irresponsibility in such cases should be submitted to the jury under proper instructions.” And in that case, after approving the legal tests or rules as announced in Bell v. State, supra, we further said: “These legal rules for determining the issue of guilt or innocence where the defense is insanity give the jury a simple and definite guide announced by those learned in the law, and they cover every possible phase of testimony that may arise in any case.”

In oases where the defense is insanity, if counsel in the preparation of their prayers for instructions and trial courts in framing- their charges to the jury will but follow the legal tests or rules as approved and announced by this court in the recent case of Bell v. State, supra, and Hankins v. State, supra, they can not go astray. As was said in Kelley v. State, 146 Ark. 509, “In those cases the whole subject was gone into as thoroughly as could be done by the writer who voiced the opinion of the court. We deem it unnecessary here to do more than call the attention of the court and counsel to those cases which must have been overlooked in the framing of the charge to the jury.”

For the error in the rulings of the court in its instructions to the jury, the judgment is reversed, and the cause will be remanded for a new trial.


text:
    Lewis v. Harper.
    Opinion delivered May 30, 1921.
    1. LANDLORD AND TENANT — ESTOPPEL TO DENY LANDLORD’S TITLE.— The possession of a tenant is that of his landlord, and, so long as the relation of landlord and tenant exists, the tenant can not acquire an adverse title as against his landlord, nor can he prove that the title is in the State, and not in the landlord.
    2. Landlord and tenant — estoppel to deny assignee’s title. — A tenant can not dispute the title of an assignee or purchaser of the land of the landlord, any more than he can dispute the title of the landlord himself.
    3. Landlord and tenant — denial op title — termination op lease. —Upon the disavowal of the landlord’s title, the relation of landlord and tenant ceases, and, as between them, the tenant becomes a trespasser, and the landlord may sue at once to recover possession, though the leasehold term has not expired.
    Appeal from Sebastian Circuit Court, Fort Smith District; John Brizzolara, Judge;
    affirmed.

      J. E. London, for appellant; J. B. McDonough, of counsel.
    The action of unlawful detainer does not lie to -determine the rights in the property sued for but only who is entitled to the present possession. 84 Ark. 220; 98 Id. 235; 100 Id. 629; 102 Id. 380. The lands were wild when defendants took possession under a contract with Robert Dunning to clear the land, and they did clear it under the agreement and put it in cultivation. Under the testimony plaintiff can not take possession until the expiration of the time they were let to defendants. Plaintiff has invoked the law in unlawful detainer and is bound by it. It was error to instruct a verdict. To create the relation of landlord and tenant, there must be a valid contract between the parties. 93 Ark. 222; 57 Id. 215.
    At the time plaintiff bought out Dunning defendants claimed the land; it was an island and belonged to the State. A question for a jury was made, as there was a question of fact to be decided and it was error to direci a verdict. 19 Cyc. 1171; 69 S. W. 839, 908; 151 Mass. 543; 24 N. E. 907; 53 Mo. 313; 30 Mo.' App. 44, 450; 44 N. W. 29.

      Pryor & Miles, .for appellee.
    1. The undisputed facts show that appellants were placed in possession as tenants of appellee’s grantors; that they disclaimed their landlord’s title and denied that they were their lessor’s tenants, and put themeselves in hostility to the rights of the lessor. 16 R. C. L., § 631. The relation of landlord and tenant ceased upon the disclaimer by the tenant of the landlord’s title. 9 Wall.. 592; 14 Peters 156. A tenant can not dispute his landlord’s title, or interpose an after-acquired title in defense of a suit by the landlord for possession or rent. ■125 Ark. 141; 112 Id. 105; 9 Id. 328; 39 Id. 135; 20 Id. 547; 13 Id. 385; 31 Id. 222; 7 Id. 310; 27 Id. 50; 114 Id. 376. A tenant in possession can not disclaim the landlord’s title without surrendering- possession nor attorn to another. 43 Ark. 28; 27 Id. 50; 28 Id. 153. Nor can he extinguish, his landlord’s title to the demised premises by purchasing an adverse title. 45 Ark. 177; 77 Id. 570; 28 Id. 153; 42 Id. 289.
    2. There was no error in the rulings of the court as to the admission or exclusion of testimony and a verdict was properly directed.
   Wood, J.

The appellee brought this action against the appellants. He alleged that he was the owner of certain lands in Sebastian County, Arkansas, and that he was entitled to the possession of same; that the appellants entered into possession of the lands under an agreement with the appellee and Robert Dunning, who at that time owned an undivided one-half interest. By the terms of the contract the appellants were to clear the lands of standing timber, and as compensation for their services in so doing they were to have the possession of the lands free of rent for two years; that in the year 1919 the appellants disclaimed the title of .appellee and Dunning; that they made false and misleading statements to William B. Owen, State Land Commissioner, to the effect that the land 'was an island, and that the title was in the State. They applied to the commissioner for a deed; 'that the appellee and Dunning were compelled to go to considerable expense to resist the claims of the appellants; that the commissioner decided that the lands did not belong to the State. Notwithstanding this decision, the appellants still contend that the lands belong.to the State. Appellee further alleged that appellants had committed waste and had refused to allow other tenants of the appellee to cross the lands. Appellee prayed for judgment for possession and damages in the sum of $250 and for rents.

Appellants answered, denying all material allegations of the complaint, and they averred that the lands in controversy held by them is an island; that it is subject to sale under the act of the General Assembly of 1917; that they applied to purchase the same on May 20, 1919, and that the State Land Commissioner arbitrarily refused their application and that a mandamus is now pending against him to compel him to make appellants a deed. They alleged that appellee had no title or color of title to the lands.

The testimony on behalf of the appellee tended to sustain the allegations of Ms complaint. Lewis (one of the appellants) was called as a witness for the appellee, and he testified substantially as follows: That he and his brother went into possession of the lands in February, 1919; that Bob Dunning showed them the land and said he had some land to lease and that he would give them two crops to clear the land or one crop and give him the timber; that they did not agree as to which they would take, but they told him they would cut the timber off for $2 and give him the timber or either they would sell the timber and not cultivate it the next year. They took charge of the lands under that agreement and cleared up some of it. After they went into possession they learned that the land was State land. They then made application to the Commissioner of State Lands to purchase the same, and as soon as they made this application they did not consider themselves any longer tenants of Dunning, under whom the appellee claimed by warranty deed; that, after the commissioner denied their application to purchase the land, they brought a mandamus to compel him to do so. The appellants cultivated about twenty acres of the land in controversy in the year 1919 — lands which they had cleared, and this year 1920 they had in cultivation between twenty and twenty-five acres. There were 131 acres on the island which was in their possession. They were to pay no rent for the years 1919 and 1920; that they only sold about ten cords of wood from the land, and the balance was still there cut up in such lengths as were required for making excelsior. There was no fence around the land when Dunning showed same to appellants. The river was on one side, and a fence on the other between the island and the rest of the farm.

There was further testimony to the effect that at the first of the year 1920 the appellee notified appellants to get out. and they refused to obey the notice, giving as a reason that they considered themselves no longer his tenants hut were holding possession. The appellants offered to prove that the land in controversy was an island, which the court would not permit them to do, and also offered to introduce deeds to show that the title was not in the appellee, which testimony the court refused to allow. At the conclusion of the testimony the court instructed the jury to return a verdict in favor ,of the ap-pellee, which was done. A judgment was then rendered in favor of the appellee, from which is this appeal.

It appears from the undisputed facts in the record that the appellants went into possession of the lands in controversy under the appellee’s grantors. The appellants do not deny, hut on the contrary admit, that they took possession of the lands in controversy under appel-lee’s grantors, hut they set up in defense of the action that annellce’s grantors had no title, and hence they say that the appellee acquired none. The appellants have thus placed themselves in the attitude of denying the title of their landlord while holding on and claiming the right to the possession, which they only could have obtained through him. This they can not do, according to the authorities generally and as held hy numerous decisions of this'court.

“A tenant can not dispute the title of his landlord while he remains in possession under him nor acquire uosspssion from the landlord hy lease and then dispute his title without surrendering possession.” Burton v. Gorman, 125 Ark. 141.

“The possession of a tenant is that of his landlord, and, so long as the relation of landlord and tenant exists, the tenant can not acquire an adverse title as against his landlord.” Gee v. Hatley, 114 Ark. 376. See, also, Bryan v. Winburn, 43 Ark. 28; Simmons v. Robertson, 27 Ark. 50; Hughes v. Watt, 28 Ark. 153; Pickett v. Fer guson, 45 Ark. 177; Dickinson v. Arkansas City Imp. Co., 77 Ark. 570, and other cases cited in appellee’s-brief.

No question of the right to homestead government lands is involved in this controversy.

The appellants contend that the relation of landlord and tenant did not exist between the appellants and the appellee because the appellee was the purchaser from appellants’ landlord, and they did not take and hold possession under the appellee. “A tenant can not dispute the title of an assignee or purchaser of the landlord any more than he could dispute the title of the landlord or lessor himself.” Adams v. Primmer, 102 Ark. 380.

The appellants also contend that they had cleared' up the land under the contract which entitled them to the land free of rent for two years, but the law is that upon the disavowal of the landlord’s title the relation of landlord and tenant ceases, and as between them the tenant becomes a trespasser, and the landlord may sue at once to recover possession though the leasehold term has not expired. 16 R. C. L., § 631; Meryman v. Bourne, 9 Wallace 592; 19 L. Ed. 683; Walden v. Bodley, 14 Peters 156; 10 L. Ed. 398. There was no error in the ruling of the court in refusing to allow .appellants to offer testimony to show that the lands in controversy belonged to the State. The judgment of the court was in all things correct, and 'it is affirmed.