text:
    McDonald v. Roberts.
    Opinion delivered June 25, 1928.

      Miles & Taylor, for appellant.

      Carmichael & Hendricks., for appellee.
   McHaNey, J.

Appellant and appellee, Fannie Roberts, are the owners of the east half of Spanish grant or survey No. 4'97, appellant being the owner of the east half of the east half, and appellee, Fannie Roberts, the owner of the west half of the ‘east half thereof. Both parties claim title from a common source, Leon Lefevre, who executed deeds to appellant’s immediate predecessor and to Fannie Roberts on the same day, February 3, 1887. Since that date appellee, C. G. Roberts, has been in the actual possession of the entire east half of this property through his wife, and under a continuous lease from appellant and her predecessor. Both tracts front on the north bank of the Arkansas River.

This suit was brought by appellant to determine the boundary line between the tracts, the prayer being “that a commission issue to fix the boundary line between the respective lands of the parties hereto, to preserve such line from confusion, and to mark off definitely the lines of plaintiff’s land,” and for quieting title to her land in her.

A plat of the tract in the transcript shows that the •St. Louis Southwestern Railway runs across the tracts east and west approximately 2.35 chains from the river and parallel therewith. This plat also shows appellant’s property to be 16% chains wide, and appellee’s 18 chains wide. The river runs in a southeasterly direction, making the appellant’s tract longer than that of appellee.

The undisputed evidence in the record tends to show that, at the time Leon Lefevre conveyed the land to appellant’s grantor, and to appellee, Fannie Roberts, a rail fence divided the two tracts, and that all parties regarded the fence as the line between the two tracts as long as it remained there. The fence rotted down, and was removed in the year 1906, and has never been rebuilt, but the undisputed evidence shows that this old fence line is still susceptible of location by stones in the line, and at least one stump near the line. The testimony tends to show, and is undisputed, that at the time Leon Lefevre conveyed these separate tracts he did so with reference to' this fence, not in so many words, but that he had so placed the fence as to divide the land into two equal parts as to acreage, the east half of the east half being the longer tract, he so placed the fence as to make it the narrower of the two tracts. This accounts for the difference in their width, appellant’s tract being 16% chains wide, and the Roberts tract 18 chains wide, but, at the time of the conveyance, they had the same number of acres in them. The testimony further shows that the river bank has been caving during high water, and that appellant’s tract has sloughed off into the river until perhaps it does not have as many acres in it now as the tract belonging to appellee.

The chancellor found that the old fence row was the true line between the parties at the time the deeds were made, and that appellee, Fannie Roberts, has always claimed all the land on the west side of and up to the fence; and that said line can be traced at this time, and is subject to identification. The court entered a decree quieting the title to the east half of the east half of private survey No. 497, as established by said line, in appellant, and the west half of the east half thereof, as established by said line, in appellee, Fannie Roberts.

We think the court correctly'found the facts, and correctly established the line between them to be the line of the old fence row, and that it is now capable of identification. However, appellant does not seem satisfied, and we are in doubt as to whether persons unskilled in the establishment of lines could definitely locate the line as established by the court’s order. Therefore, while the court’s order definitely fixes the line in accordance with all the evidence, still it has not actually been established and fixed on the land itself so that the parties themselves may go and locate it and know exactly where the line is. If the parties themselves cannot agree upon the definite and actual location of line from the decree of the court, as apparently they cannot do, appellant would be entitled to have the court appoint a surveyor to locate and establish the line on the land, with fixed monuments, in accordance with the decree of the court. In this regard the decree of the court is modified, and in all other respects it is affirmed, each party to pay his own costs in this court.


source: Caselaw Access Project

author: McHáNey, J.

license: Public Domain

text:
    No Fence District No. 1 of Lincoln County v. Grumbles.
    Opinion delivered June 25, 1928.

      A. J. Johnson and Henry W. Smith, for appellant.

      Mike Dcmaher and Palmer Danaher, for appellee.
   McHáNey, J.

This case was tried, upon the following- agreed statement of facts: “No-Fence District No. 1 of Lincoln County, Arkansas, is a corporation organized 'by special act No. 233 of the Acts of the General Assembly of Arkansas for 1923, approved February 27, 1923. That it was incorporated for the purpose of building a fence in Lincoln County, Arkansas, on the boundary of what was .designated as No-Fence District No. 1. That the district did build and construct the fence in 1923, and the board of directors, in order to pay for said improvement, levied an annual tax based on the assessed benefits against the lands within the district. That the tax levied for the year 1923 remained unpaid on the 10th day of April, 1924, and a certified copy of the delinquent list was furnished by the collector to the clerk of the chancery court of Lincoln County, and same was filed and recorded on the 7th day of June, 1924; that the taxes for 1924 remained unpaid on April 10, 1925, was also certified to the Lincoln Chancery Court, and filed and recorded on the 8th day of June, 1925, and the taxes remaining unpaid on April 10, 1926, were likewise certified to the clerk of the Lincoln Chancery Court and filed and recorded on the 12th day of Juné, 1926.

“That F. E. Grumbles was the duly qualified and acting clerk of the chancery court of Lincoln County from January 1, 1923, until December 31, 1926; that he was succeeded in office on January 1, 1927, by-O. F. Myers, who is now and has been since that date the duly qualified and acting- clerk of the Lincoln Chancery Court. That the board of commissioners in No-Fence District No. 1, for the purpose of foreclosing the lien in favor of the district for delinquent taxes, filed their petition in the Lincoln Chancery Court with copy of the delinquent tax list for years 1923, 1924 and 1925, attached on the 26th day of August, 1926; that the complaint and list of delinquent taxes are .attached as part of the statement 'of facts. That a decree in favor of the district for the amount of the taxes, interest, penalty and cost was rendered in favor of the district on October 18, 1926, and on said date the clerk of the Lincoln County.Court was appointed a commissioner and directed, if said taxes were not paid in ten days, to sell said land at public sale, after giving notice for the payment of said judgment. That the notice given by the clerk as commissioner is hereto attached. That the commissioner’s report of sale was filed with the court on December 14, 1926; that the report of sale was approved by the court on the 14th day of December, 1926. No part of the lands included in the decree has ever been redeemed. That a large number of the tracts of land returned delinquent by the collector in 1924 for the delinquent taxes of 1923 also became delinquent for the taxes of 1924 and 1925, and were returned delinquent by the collector for each of these years.

“The clerk, F. E. Grumbles, is asking the court for judgment as cost in suit to foreclose the delinquent tax of $1 per tract for filing and recording the delinquent list for each year said tract was returned delinquent. This request is for $1 per tract for 416 tracts appearing on the delinquent list for one year; $2 per tract for 53 tracts on the delinquent list for two years; $3 per tract on 64 tracts on delinquent list for three years, making a total of $714 for filing and recording. The district" refuses to pay.

“F. E. Grumbles is asking also the court for judgment against the lands for the amount of $1 per tract on a total of 533 tracts as commissioner’s fee for making sale. The deeds conveying the lands as sold by the commissioner to the district have not been executed nor approved. The district has refused to pay this item, for the reason that it contends that it is incumbent upon the present clerk, O. F. Myers, to execute the deeds.

“All pleadings, exhibits, notices, motion and answer thereto considered in evidence.

“The present clerk, 0. F. Myers, who succeeded F. E. Grumbles as clerk in January, 1927, is charging and collecting from all persons who wish to redeem any of said lands one dollar per tract for the redemption certificate, and one dollar for deeds executed.

“We agree that the above statement may be taken and considered 'by the court as facts relevant to the above case without any proof thereof, at the trial of said cause.”

Based on these facts, the court found that appellee was entitled to a fee of $1 for each tract of land returned delinquent for filing and recording the delinquent list for each year that such tracts were returned delinquent; that there were 416 tracts returned delinquent for one year, 53 tracts returned delinquent for two years, and 64 tracts returned delinquent for three years, which entitled appellee to the sum of $714. The court further found that the commissioner, appellee, had advertised and sold 533 tracts of said delinquent lands, all of which were purchased by appellant, for which he was entitled to a fee of $1 for each tract so- sold, or $533, mailing a total of $1,247, for which amount a decree was entered in his favor against the district.

It is first contended that appellee is not entitled to collect the $1 per tract for filing and recording the delinquent lists for the years mentioned, for the reason that he did not issue any certificates of redemption. This contention is based on § 3 of act 534 of the Acts of 1921, p. 573, the pertinent parts of which are as follows: “For his services in filing, recording- and issuing certificate of redemption the said clerk shall be entitled to the sum of $1 per tract, which shall be added to the same at the time of recording said list and shall be charged as costs against said tract. ’ ’

Section 4 of said act provides that - if the board desires to bring suit for the collection of such delinquent taxes, they shall obtain a certified copy of the delinquent list from the chancery clerk and file same with the complaint, which shall be taken as a part thereof, and the clerk for making the certified copy is entitled to ten cents per tract, to be taxed as costs in said suit. This procedure was followed. The delinquent lists were returned to the chancery clerk as provided in said act, which he filed and recorded, and at the time entered up the charge of $1 as costs for filing, recording and issuing certificates of redemption, provided any property 'owner desired to redeem. No redemptions were made, however, and when the certified list of delinquents was made to the board and suit was filed thereon, this $1 per tract was included in the costs, plus the ten cents per tract for the certified copy, and the land was sold for the tax, penalty, interest and costs, including this $1.10. If the land had been sold to an individual instead of to the district, there could he no question whatever that the clerk would be entitled to his costs of $1 per tract for filing and recording, as that amount would necessarily have been paid by the purchaser of the tract. Since the district became the purchaser of all this delinquent land, and since it is provided in § 22 of the act creating the district, act 233, Acts of 1923, p. 447, “that in any case where the lands, lots, railroads and tramroads are offered for sale by the commissioner, as provided for in this act, the sum of tax due, together with the interest, costs and penalty is not bid for the same, the said commissioners shall bid the same off in the name of the said district, bidding theréfor the whole amount due. as aforesaid; and the commissioner shall execute his deed therefor, as in other cases under this act, conveying such land to such board,” etc. It is therefore plain to be seen that the clerk’s costs of $1 per tract for filing’ and recording such lists have been included in the amount for which suit was brought, and for which sale was made, was included in the amount bid by the district for such land, and we know of no reason why the district should not pay the clerk his fees for this work. The mere fact that § 3 of the act 534, Acts 1921, provides that this fee of $1 shall be for filing, recording and issuing certificate of redemption, when no redemptions have been made by the property owners, cannot disentitle him to the fee which he was required to enter up at the time of filing and recording, and which has been certified to the board, and for which, the land has been sold to the district.

We therefore hold that the clerk was entitled to this item of fees as allowed him by the chancellor.

It is finally insisted that the appellee is not entitled to the $1 per tract allowed him by the court as commissioner’s. fee for making the sale. The decree of foreclosure under which the sale was had was made and entered October 18, 1926, from which there has been no appeal, and in this decree the commissioner was ordered, in making the sale, “to add a fee of $1 for acreage property and $1 for town lots as his fee, and the sum of $1 as attorney fee against each and every separate tract of land.” This was the commissioner^ fee for'making the sale.

As heretofore stated, he has made .the sale in pursuance of said decree and reported same to the court, which has been approved, but no deed has been made to the district conveying the lands to it. In fact, no deed could have been made until the expiration of one year from the date of the sale and its confirmation by the court, as the act under which the district is organized, act 238 of the Acts of 1923, provides, in § 21, “that the owner of any such property may redeem the same by paying- to the clerk of the proper chancery court the amount of taxes, penalty, interest and costs within one year .after the sale of said lands or other property, and saving to minors and insane persons the right to redeem within one year after such disability shall have been removed. ’ ’

For this service of issuing redemption certificates after sale, the act fails to provide any fee for the clerk. The above provision of the act creating the district clearly refers to redemptions after the sale, whereas § 3 of the act of 19'21 refers to redemptions before sale. Until the period of redemption, as above set out, expired, the commissioner would not be authorized to make a deed to the district, but, at the expiration of that time, on the demand of the board, it would be his duty to execute such deed. That duty would not devolve upon the present clerk, as the former clerk, appellee, was the commissioner making the sale, and the act creating the district makes it the duty of the commissioner making the sale to execute the deed. The commissioner might or might not be the clerk, as the act creating the district provides that the court “shall appoint a commissioner, who should 'be directed to sell the lands, ’ ’ etc. It will be a very simple matter for the commissioner, appellee, to make a deed to the district. for the lands remaining unredeemed from the sale, and on doing so he would be entitled to his fee as fixed by the court for making the sale.

The decree is therefore affirmed.


author: Hast,' C. J.,

text:
    Smith v. Haltom.
    Opinion delivered July 2, 1928.

      ■Hayme, Parks & Westfall, for appellant.

      McRae •& Tompkins, for appellee.
   Hast,' C. J.,

(after stating tlie ’facts). At the outset it may be stated that we have carefully read and considered the record, and if the defendant, W. Scott Hal-tom, had appealed we could have reached no other conclusion than that the chancery court properly granted the plaintiff, Lois iB. Haltom, a divorce from her husband, W. Scott Haltom, land awarded her the custody of their infant son. The court also was right in setting apart to the plaintiff one-third of all the real estate described in the complaint as belonging to her husband.

The case of Allen v. Allen, 126 Ark. 164, 189 S. W. 841, was a case where constructive service was had upon the husband, and the wife in her complaint described real estate belonging to her husband, and asked that one-third of it be set apart to her for her natural life. There was a decree granting her la divorce and awarding her one-third of the lands of her husband for her life. The court held (quoting from syllabus) : “The statute authorizes the court to set apart to the plaintiff in a divorce case one-third of all the husband’s real estate, and the filing of a complaint describing the property gives the court jurisdiction over it for the purposes of making lan award in accordance with the terms of the statute; no attachment or other method of sequestration is necessary in order for the court to acquire jurisdiction. ’ ’

Again, in Hegwood v. Hegwood, 133 Ark. 160, 202 S. W. 35, the court held (quoting from syllabus): “The division of the property is a mere incident to the divorce, and it is not essential to the jurisdiction of the court that the pleadings should set forth the property. The decree for divorce draws to the court the power to ascertain the description of the property owned by the husband, for the purpose of awarding to the divorced wife her share thereof.”

From the contract of marriage spring’s a relation or •status in which the State and the public are interested and which has always been deemed subject to the control of the Legislature by laws which, amongst other things, prescribe the effect of the relation upon property rights of the contracting parties. Closson v. Closson, 30 Wyoming 1, 215 Pao. 485, 29 A. L. R. 1371; Maynard v. Hill, 125 U. S. 190, 8 S. Ct. 723.

In Forrester v. Forrester, 155 Ga. 722, 118 S. E. 373, 29 A. L. R. 1363, it was held that the property of a nonresident husband which may be found in the State of Georgia may be seized and appropriated to the support of his wife by proper proceedings quasi in rem, in a court of equity which has jurisdiction of the subject-matter of the suit and possession of a res which may be subjected.

In a case-note to 29 A. L. R., 1381, the principle is recognized and the rule is stated as follows:

“While it has been held in many cases that a purely personal decree or judgment for alimony, rendered against a nonresident, who is notified constructively by publication or actual service out of the State, and who does not appear, is void, not only in the State in which it is rendered but in other jurisdictions as well, yet a different rule prevails as to property of the nonresident so served which is within the jurisdiction of the court. Assuming that the nature and situs of the property are such as to support a proceeding in rem or quasi in rem, the rule is that constructive service of process or personal service outside of the State, even in the case of a nonresident, will give jurisdiction to render a decree for alimony or maintenance, which is binding upon property belonging to him which is within the jurisdiction of the court and which has been specifically proceeded against; ’ ’ and among’ the Cases cited are Pennington v. Fourth Nat. Bank, 243 U. S. 269, 37 S. Ct. 282, L. R. A. 1917F, 1159, and Allen v. Allen, 126 Ark. 164, 189 S. W. 841.

In the application of the rule in Walker v. Walker, 147 Ark. 376, 227 S. W. 762, in an action for divorce against a nonresident on constructive service of process, it was held that a personal judgment could only be rendered upon personal service of process, and that in such a case a personal decree for alimony and attorney’s fee against the husband was void on its face.

In the case at bar the court specifically refused to allow attorney’s fees, and also refused to make a personal decree for alimony. The decree provided that the alimony was to be plaid out of the portion of the estate of J. F. Haltom, deceased, which had been ordered distributed to W. Scott Haltom and which had been impounded for that purpose in the hands of the administrator as'a part of the personal estate of the decedent ready to be distributed to his heirs-in-law.

The chancery court, at the commencement of the suit, wias asked to impound only that part of the personal estate of J. F. Haltom, deceased, which had been specifically ordered to be distributed to W. Scott Haltom. This constituted an equitable garnishment of the funds, and brings the case squarely within the rule announced in Pennington v. Fourth Nat. Bank, 243 U. S. 269, 37 S. Ct. 282, where it was held that the alimony obligation of a nonresident husband, served only by publication, though inchoate at the commencement of the divorce suit, may, consistently -with the 'due process of law guaranteed by the 14th Amendment of the United States Constitution, be enforced out of a bank .deposit in a local bank, where, upon the filing of the suit, the court entered a preliminary order enjoining the bank from paying out any part of the deposit, such an order being as effective a seizure as the customary garnishment or taking by trustee process. In discussing the question the court said:

“The power of the State to proceed against the property of an absent defendant is the same whether the obligation sought, to be enforced is an admitted indebtedness or a contested claim. It is the same whether the claim is liquidated or is unliquidated, like a claim for damages in contract or in tort. It is likewise immaterial that the claim is, at the commencement of the suit, inchoate, to be perfected only by time or the action of the court. The only essentials to the exercise of the State’s power arq presence of the res within its borders, its seizure at the commencement of proceedings, and the opportunity of the owner to be heard. Where these essentials exist, a decree for ialimony against an absent defendant will be valid under the same circumstances and to the same extent as if the judgment were on a debt; that is, it will be valid not in personam, but as a charge to be satisfied out of the property seized.”

This rule applies here. The defendant, J. B. Smith, as administrator of the estate of J. F. Haltom, deceased, was made an equitable garnishee when the divorce complaint was filed. His answer admits that'he has in his hands as such administrator a sum of money which the probate court has already ordered to be paid by him to W. Scott Haltom as his distributive share of the estate. The administration was closed, so far as the sum garnisheed was concerned; nothing remained to be done except to pay out the amount to W. Scott Haltom as his distributive share of the personal estate. Hence equitable garnishment of the same could in no way affect the jurisdiction of the probate court over the administration of the estate of J. F. Haltom, deceased. The answer of the defendant, J. B. Smith, as such administrator, made him a party to the proceeding, and, as a result, he was -required to follow the suit to its end or stand the consequences. Hence he had the rig-ht to appeal to this court, and, indeed, it was his duty to do so i'f he thought the decision of the chancery court was wrong. But, as we have already determined, the decree of the chancery court was correct as far las he is concerned.

For the reasons above given, the application of the defendant, W. Scott Haltom, for a writ of certiorari to quash the decree of the chancery court in the divorce case must be denied. .No appeal has been taken from the decree for divorce, and, for that reason, the motion of the attorneys of Lois B. Haltom for attorney’s'fees pending the appeal in this court must be denied. The appeal of J. B. Smith, as administrator of the estate of J, F. Haltom, deceased, does not give us jurisdiction to grant attorney’s fees in the divorce case, which was not appealed. Nor can the cross-appeal of Lois B. Haltom have that effect, because it does not affect her rights as to the equitable garnishment against J. B. Smith, administrator of the estate of J. F. Haltom, deceased.

The result of our views is that the decree of the chancery court will be affirmed, and the application of the defendant, W. Scott Haltom, for a writ of certiorari to quash the decree of the chancery court will be denied. It is so ordered.


author: Wood, J.

text:
    Van Norman v. Reynolds.
    Opinion delivered July 2, 1928.

      E. A. Williams and Dean, Moore :& Brazil, for appellant.

      Strait & Strait, for appellee.
   Wood, J.

Tlxis is an action by certain citizens, residents and taxpayers of Conway County, Arkansas, against the county judge of that county and the commissioner appointed by the county court to superintend the erection of the courthouse, and the contractor, with whom a contract was entered into for the building of the courthouse, to restrain .them from performing their contract.

The plaintiffs alleged seventeen reasons why the courthouse should not be built, all of which have been abandoned here except the following:

(1) Because the county is unable to 'build a courthouse on the plan outlined and leave sufficient revenue to meet the county’s necessary expenses of government, which would be contrary to provisions, of act No. 11. (2) That the attempted appropriation for the building of the courthouse was illegal and void, as all of the 5-mill levy that could be appropriated under the statutes was appropriated before the attempted appropriation of 1 y2 mill for the purpose of building the courthouse. (3) That the matter of building a courthouse was not properly presented to the quorum court, and no sane and reasonable estimate of the county’s necessary running expenses was attempted to be made by the quorum court. (4) That the contract entered into by the county judge and the building commissioner with the contractor is illegal and void, because it is in violation of the statute and Constitution forbidding the payment of interest by counties.

Issue was joined by the defendants on the above alleged grounds.

The cause was heard by the chancery court upon the pleadjngs and the depositions of witnesses, together with certificates of officers and certified copies of record attached to the depositions of witnesses, and the court made a general finding in favor of the defendants. The court entered its decree dismissing the complaint for want of equity, from which is this appeal. We will consider the alleged grounds for injunction in the order in which they are stated by appellant’s counsel.

1. In the recent case of Tatum v. Tatum, 175 Ark. 90-95, 1 S. W. (2d.) 554, we said: “It is incumbent upon the county court to ascertain from the budget of past years of the quorum court and from estimates of the future condition of the county if there mil be annually a margin left to meet the annual payments for construction of a courthouse after the indispensable governmental expenses of running the county are deducted from the total amount of the county general revenue to be annually levied and collected.” In this view of the matter, the burden of proof was upon the defendants to show that this state of facts existed.

It appears from the records of the county and quorum courts of Conway County that the courthouse in that county was destroyed in January, 1927. The judge of the county court, who presided over the quorum court during its deliberations, testified, among other things, as follows:

“I have ascertained from the record the amount of income of Conway County per annum for the last two or three years, and am in possession of the facts showing the income. The amount of the general revenue of the county for general purposes for the year 1927 from all sources was $38,833.33. My estimated total income for the county general purposes for the year 1928 is. $42,-678.78. I am familiar with the current general expenses of operating the business and affairs of the county per annum. There will, from the amount of income, be a surplus over and above the necessary and economical administration of the affairs of the county, amounting to approximately a little more than $8,000. There will be sufficient each year, under present valuation and method of assessment, to operate and conduct the business affairs of the county and meet its expenses and have sufficient to pay the annual installments under the contract for the construction of the courthouse $6,000 each year. The assessed values are increasing in Conway County. The county itself and tlie -wealth, of the county is increasing in value. The letting of this contract and the payment of the contract price in installments of $6,000 a year will not depreciate the value of county scrip. Scrip is on a par basis at this time. The county’s income will be sufficient to pay its current expenses and to pay these installments each year in cash as they become due.”

On being recalled, the judge further testified that the stimate of the net income for 1928 will be $29,372.26. The net income for 1927 was $29,060.98. He had been county judge a little over five years. The net income for the years 1927 and 1928 is about an average of the county’s annual income. The witness then went into detail in explaining the annual revenues and expenses of the county.

It would unduly extend this opinion, and is wholly impractical, to set out and discuss in detail the figures given by the witness in making his estimate of the amount which the county could expend in the building of a courthouse over and above the necessary expenses of county government. The witness was examined at great length, both in his direct and cross-examination, and, after setting forth the sources of income and the necessary expenditures, he stated that the county would have “funds enough to carry on an economical administration of the county’s affairs, after paying $6,000 per annum as per contract for the construction of the courthouse.”

Two of the members of the quorum court were called as witnesses. They testified that no committee was appointed by the quorum court to make a survey of the accounts to determine whether the court could levy 1 y2 mills for the purpose of building a courthouse and have enough left to pay the necessary expenses of county government. They relied on the statement of the county judge as to the condition of the county finances, believing he ought to know, as he had been county judge for four years. One of these witnesses stated that he attended all sessions of the court, heard all reports that were made. “The regular order for county clerk to make a detailed statement of the comity finances was made, and seemed to be in regular form. The.court adopted it, and that was used as a basis for the action of the court in making the appropriation — that is, we relied on the judge’s statement of the county’s finances in making the appropriation. ’ ’

The county treasurer was called, and the record of the county treasurer for several years back was introduced and statements and certificates by the treasurer, showing the amounts of revenues received from various sources and the amounts paid out by him, and the condition of the treasury, which tended to show that there was left to the credit of the general county fund on January 1, 1928, only the sum of 50 cents. It was agreed that all certificates of the county clerk and the report of all the officers of the county pertaining to the general revenue for the year 1927 and many years prior thereto should be introduced and considered as evidence in the cause, and there were many certificates and reports introduced and considered.

M. H. Dean was a witness. He had been circuit clerk of the county from 1902 till 1908 inclusive, and county treasurer from 1909-1912 inclusive, and then again circuit clerk from 1913-1916 inclusive, and county judge from 1918-1922 inclusive. He testified at considerable length. Among other things he said: “The county’s indebtedness had greatly increased through all the years he had been in office up to the present time, and was now $96,900 in debt.” As to the increase, says the witness, “the only way I can account for it, there is not enough revenue derived to meet the eounty’s expenses; in other words, the assessed valuation and revenue does not provide enough to meet the expenses of the county. It just won’t do it. * * * I have examined the records closely for the last ten years, from 1918-1927, and the assessed valuation of the county for the years 1923, ’24, ’25, ’26, and ’27 — that is, the highest valuation for these years — is lower than the five years preceding.”

After a careful examination of this voluminous record we are unable to say that the finding of the chancellor on this issue of fact is clearly against the preponderance of the evidence.

In Ivy v. Edwards, 174 Ark. 1167, 298 S. W. 1006, we said: “It would be impossible to build a courthouse if speculation and conjecture merely should be allowed to enter in the making the estimates as to the amounts necessary to pay the necessary government expenses. In other words, a mere suggestion that it might take all the revenue in any current year to pay the necessary government expenses should not preclude the quorum court from authorizing the construction of the courthouse if a sane and a reasonable estimate disclosed that there would be sufficient to build the courthouse on the installment plan, after paying the necessary expenses for government.” Judge M. H. Dean, because of his connection with the financial affairs of Conway County. as clerk, treasurer and county judge for twenty years, to be sure, was exceedingly conversant with the finances of the county. According to his testimony, there was not enough revenue to meet the county’s expenses. He had seen the county’s debt pile up through all these years until it was now $96,900. But, during the time Judge Dean was connected with the financial affairs of the county in the various offices mentioned, there was no constitutional provision, such as is now contained in Amendment No. 11, prohibiting the making of any contracts or allowances, for any purpose whatever, in excess of the revenue for the fiscal year in which the contract or allowance is made and attaching severe penalties by way of fine and removal from office of any officers who had violated the provision of the Constitution. No doubt Judge Dean was a faithful and efficient county judge, and he did all in his power, as the testimony shows, to meet the expenses of the county government with the revenue as it came in. But it is a matter of common knowledge that, with no restriction upon the power of county courts to incur indebtedness, many of the counties of the State had incurred a large indebtedness, Con-way County among them. But, under the new regime inaugurated by the adoption of Amendment No. 11 to the Constitution, it is now impossible for county judges to involve their counties in debt without incurring heavy penalties. Therefore the viewpoints from which Judge Dean on the one hand and Judge Reynolds on the other viewed the fiscal affairs of their county were entirely different. Judge Dean was out of office, and no longer charged with the responsibility of managing the affairs of the county. Judge Reynolds, who is the present incumbent of the office and has had the responsibility of managing the finances of the county since the adoption of Amendment No. 11, explained before the quorum court the condition of the finances of the county at the time that court made the appropriation for the 'building- of the courthouse. The testimony shows that the indebtedness of the county had been paid, under the provisions of Amendment No. 11, and that the court had before it a detailed statement of the county’s finances made by the county clerk; so it was determined by the quorum court and the county court, before it entered into the contract, that the revenue would be sufficient to meet all other expenses of the county government and to provide the necessary funds for the building of the courthouse.

In Lake v. Tatum, 175 Ark. 90-93, 1 S. W. (2d.) 554, we said: “Where the county court, in good faith, finds, upon an investigation of the fiscal affairs of the county, that there will be a margin left, if it be spread over a series of years sufficient to meet the annual payments for the construction of a courthouse, such contract for the construction of a courthouse will be a valid and enforceable contract, and the annual payments will be considered allocated or appropriated to the construction of the courthouse.”

Without pursuing the matter further, we are convinced that the county court of Conway County acted in good .faith in finding that the general revenue of the county would be sufficient to enable the county to pay the necessary expenses of county government and at the same time make the annual payments required by the contract for the building of the courthouse. At least we are unable to say that the evidence does not preponderate in favor of such finding of fact by the trial court.

2. Learned counsel contend, in their second proposition for reversal, that the attempted appropriation for the building of the courthouse was illegal and void, as all the five-mill levy that could he appropriated under the statutes was appropriated before the attempted appropriation of iy2 mills for the purpose of building the courthouse. The record shows that the quorum court, at its regular November term, 1927, levied a 5-mill tax for general county purposes, and then appropriated 1% mills of this tax for the construction of a courthouse. Later, at a special term, the quorum court was regularly convened December 23,1927, at which term the court passed the following resolution:

“Whereas, it has been calculated that the amount of money necessary to pay said warrants as they mature in twenty installments of $7,000 each will be realized by levying a tax of 1% mills, be it ordered, adjudged and decreed by the quorum court of Conway County, Arkansas, that a tax o'f 1% mills on the dollar of the assessed value of all the taxable property within said county is hereby levied to pay the installments of said warrants of not exceeding the amount of $140,000, maturing serially $7,000 per year for twenty years, beginning in the year 1929. That during each of the years, while any of said warrants are outstanding and unpaid thereon, there shall be calculated the amount of money necessary during each of said years to pay the current installment maturing during said years, and that a tax at a rate sufficient to raise said money shall be levied by the quorum court and collected during each of said years, and is hereby ordered levied. ’ ’

This procedure followed closely that which was adopted by the quorum court of Benton County in making the levy and appropriation for the building of a courthouse, which was held valid by this, court in the case of Ivy v. Edwards, supra. No useful purpose can he served by repeating what was there said. According to the doctrine of that case, appellants’ second ground for reversal cannot'be sustained.

3. The appellants’ third proposition for reversal is that the matter of building a courthouse was not properly presented to the quorum court and no sane and reasonable estimate of the county’s necessary running expenses was attempted to be made by the quorum court. This involves a question of fact which we have already determined in disposing of appellants’ first proposition for reversal. It follows, from what we there said and our conclusion with reference to that, that the third ground urged 'by appellants for reversal cannot be sustained.

4. The last guound urged by appellants as set forth above is: “The contract entered into by the county judge and the building commissioner with the contractor is illegal and void because it is in violation of the statute and Constitution forbidding the payment of interest by counties.” This is purely a question of law, which has already been decided by this court against the contention of appellants in several cases, some of them quite recent, and it would be purely supererogation to reiterate what has been said in former opinions, to all of which we adhere. See Norman v. Blair, ante p. 649; Kleiner v. Parker, ante p. 671, and cases there cited. ’While there is an allegation in the pleadings, of the appellants to the effect that the manner of letting the contract is an illegal and fraudulent attempt upon the part of the appellees to conceal their purpose and intent to violate § 1, art. 16, of the Constitution of the State, there is no proof whatever to sustain such contention, according to the doctrine announced in the cases above cited.

The decree of the trial court is correct, and it is therefore affirmed.


author: 'Smith, J.

text:
    Fields v. Freeman.
    Opinion delivered July 2, 1928.

      G. H. Herndon, for appellant.

      Jerry Witt, for appellee.
   'Smith, J.

Appellant, W. A. Fields, brought suit for himself and on behalf of two of his. minor children to recover damages to his automobile and to compensate injuries sustained by his children as the result of a collision between his automobile in which he and his children were riding and one driven by appellee. The cases were consolidated and tried together, and from a verdict and judgment in favor of appellee is this appeal.

Appellant was driving through the town of Mount Ida, on a street which is a part of State Highway No. 27, and one of the two children was on the front seat of the car and the other on the rear seat. Appellee was driving-out of an alley into this highway when .the collision occurred. As is usual in such cases, each driver excused himself and blamed the other.

The testimony on the part of the appellee was that he drove out of the alley in low gear and at a low speed, and, after he had driven about twenty-five feet down the street from the point of intersection of the street and alley, he saw appellant approaching at a speed of about twenty miles per hour and on the left-hand side of the street, which was forty-two feet in width. Appellant was driving south, and there were cars parked on the right, or west side of the street, and he was driving ten feet east of the center of the street.

Appellee testified that, after turning into the street, driving- north, he saw appellant’s car approaching rapidly, and he observed that appellant was not keeping a lookout, and was on the wrong side of the street, so he applied his brakes and yelled at appellant to attract his attention, as he did not have time to blow his horn after observing that appellant was not looking ahead. Immediately after the impact, appellant stated that he did not know whether he placed his foot on the brake or on the accelerator.

We do not state appellant’s version of the collision, as we must assume, in testing the sufficiency of the evidence, that the jury accepted as true the testimony which tends to support the verdict returned.

The court submitted the case to the jury under correct instructions, which told the jury that, if appellee was negligent and appellant was not, all the plaintiffs were entitled to recover, but, if the negligence of each contributed to the injury, appellant could not recover. The court further instructed the jury that the negligence of appellant, if he was found to be negligent, could not be imputed to his children, and that they were entitled to recover if the negligence of appellee contributed to their injury. As a verdict was returned against all the plaintiffs, we must assume that the jury found that appellee was. not guilty of any negligence contributing to the injury of the infant plaintiffs. We think the testimony is legally sufficient to support that finding.

The court charged the jury, under § 19 of act 223 of 1927 (Acts 1927, page 721), an act entitled,-“A uniform act regulating the operation olf vehicles on highways,” that appellant had the right-of-way over appellee, who was driving into a public highway from a private alley, but refused to charge the jury that appellee was guilty of negligence as a matter of law if he failed to comply with certain other provisions of this act and with § 7426, C. & M. Digest, in regard to the speed of an automobile in rounding a corner, but left the jury to say whether the conduct of appellee was that of a prudent man under the circumstances. There was no error in this, as it was recently held, in the case of Pollock v. Hamm, ante p. 348, that the violation of the State traffic statutes is merely evidentiary of negligence and is not conclusive of that issue.

The case appears to have been properly submitted to the jury, and the testimony on appellee’s behalf is sufficient to support the finding that appellee was guilty of no negligent act causing or contributing to the injury, and the judgment in all three cases must therefore be affirmed, and it is so orderd.


author: Smith, J.

text:
    Pine Bluff v. Mead.
    Opinion delivered July 2, 1928

      L. DeWoody Lyle and Jones & Hooker, for appellant.

      E. W. Brockman, for appellee.'
   Smith, J.

Upon a proper petition and after due notice and a majority vote of the electors, the county court of Jefferson County made an order annexing about three square miles of outlying and contiguous territory to the city of Pine Bluff. Certain owners of property in the territory affected, who made themselves parties to the proceeding, appealed to the circuit court, and, after the appeal had been perfected, several changes were made in the petition so as to exclude various portions of the proposed addition. It was permissible to do this, and the jurisdiction of the circuit court on the appeal was not affected thereby. Vestal v. Little Rock, 54 Ark. 328, 15 S. W. 891, 11 L. R. A. 778.

Conflicting testimony was heard upon the adaptability of the property included in the petition after the last of the amendments had been made, and the court made a finding of fact that a preponderance of the evidence showed that the city does not need the territory sought to be annexed; that there is much vacant property in the present city limits, and that much of that attempted to be taken in is unplatted and vacant, and that many acres of it are in woods, with no improvements.

The leading case in this State, and one frequently cited by the courts of other States on the conditions under which it is proper for the boundaries of a city or town to be extended to take in outlying and contiguous territory, is that of Vestal v. Little Rock, supra. Judge Hem-INsway, for the court, there stated the correct rule to .guide the courts in determining whether an application for annexation should be granted. He said:

‘ ‘ That city limits may reasonably and properly be extended so as to take in contiguous lands: (1) when they are platted and held for sale or use as town lots; (2) whether platted or not, if they are held to be brought on the market and sold as town property when they reach, a value corresponding with the views of the owner; (3) when they furnish the abode for a densely-settled community, or represent the actual growth of the town beyond its legal boundary; (4) when they are needed for any proper town purpose, as for the extension of its streets, or sewer, gas or water system, or to supply places for the abode or business of its residents, or for the extension of needed police regulation; and (5) when they are valuable by reason of their adaptability for prospective town uses; but the mere fact that their value is enhanced by reason of their nearness to the corporation would not1 give ground for their annexation, if it did not appear that such value was enhanced on account of their adaptability to town use.”

After stating affirmatively when the contiguous territory should be annexed, he further said:

“We conclude further that city limits should not be so extended as to take in contiguous lands: (1) when they are used only for purposes of agriculture or horticulture, and are valuable on account of such use; (2) when they are vacant and do not derive special value from their adaptability for city uses” (citing authorities).

We think it unnecessary to set out or to review the testimony offered in support of and in opposition to the prayer of the petition for annexation. We are of the opinion that by far the greater part of the territory involved is shown, under the tests announced by Judge HemiNGway, by the great preponderance o.f the evidence, and much of it by the undisputed evidence, to be territory which should be annexed to the city. But, before we could reverse the finding and judgment of the circuit court, we would have to say that all of the land included in the petition was adapted to urban uses.

We do not interpret the court’s finding as meaning that none of the land embraced in the petition was adapted to urban uses, but only that lands were included in the petition which should not have been, and, if that finding is supported by substantial testimony, we must affirm the judgment of the circuit court, which denied the prayer of the petition. Brown v. Peach Orchard, 162 Ark. 175, 257 S. W. 732.

There was testimony that a forty-acre tract of land owned by W. M. Simpson is unplatted and is used exclusively for agricultural purposes, hnd its present value is due to that use and is. not attributable to its adaptability for urban purposes. Similar testimony was offered as to certain other tracts of land.

This testimony was not undisputed. On the contrary, the testimony on the part of the petitioners was to the effect that all this, land was adapted to urban uses and derived its principal value from that fact. But we are required to affirm the judgment of the court below if it is supported by substantial testimony, and it is so supported.

In the Vestal case, supra, this court on the appeal held that most of the territory embraced in the annexation petition should properly have been annexed, including a forty-acre tract of land which was. said to be vacant, low, flat, wet, and covered with timber, but the judgment of the circuit court which had affirmed the order of the county court annexing the unincorporated town of Argenta to the city of Little Bock, was reversed because another forty-acre tract of land was embraced in the annexation petition, and the court found that the owner of this land had no need of local government and the city had no need of his land.

A similar finding was made by the court below as to certain agricultural land included in the petition, and, as. there is substantial testimony to support that finding, the judgment must be affirmed, and it is so ordered.


text:
    King v. State.
    Opinion delivered July 2, 1928.

      Earl Wiseman and Coleman & Reeder, for appellant.

      H. W. Applegate, Attorney General, and Walter L. Pope, Assistant, for appellee.
   Smith, J.

This is an appeal from a conviction of the crime of murder in the second degree, with an assessed punishment of fifteen years in the penitentiary imposed upon appellant.

For the reversal of the judgment it is first insisted that the court abused its discretion in permitting the prosecuting attorney to unduly cross-examine appellant as to what appellant meant by saying that he had killed the deceased partly by accident and partly in self-defense. We think there was error in this cross-examination, but, as the alleged error is not likely to again occur, we do not further discuss that feature of the case.

Another error assigned for the reversal of the judgment is that the court erred in refusing to grant appellant’s motion for a continuance. This motion was in proper form, and, from the testimony offered upon the hearing of this motion, the following facts were disclosed: Only five persons saw any part of the difficulty, appellant and deceased being two of these. The others were an employee of deceased, named James Neal, and a son and young daughter of appellant. The daughter came upon the scene .just as or just after the fatal shot was fired, and did not hear or see any part of the beginning of the difficulty. Appellant’s son was present, and saw and heard everything that happened.

It was shown that appellant’s son was sick at appellant’s home when the case was called for trial, and in support of that fact the following statement from two reputable practicing physicians of the county was read in evidence:

“This is to certify that we have visited the home of Noah King and have examined his son, Hamp King, and find him affected in left lung, and other trouble that follows fin. We can truthfully say that in our opinion it would be doing the boy a gross injustice to advise his going to court. ’ ’

The absent witness, if present, would have testified that deceased struck appellant with a pitchfork, and started to leave the wagon in which he was standing, when appellant drew his pistol, which he changed into his left hand, using his right hand to protect himself with a club1 held in that hand from the assault being made upon him with the pitchfork, when deceased threw the pitchfork at appellant, striking him on the shoulder and exploding* the pistol, which appellant was holding in his left hand to deter deceased from advancing upon him.

Appellant made an application for bail, which was granted after his arrest, and when the court convened he was indicted on Monday, and his case set for trial on the following Thursday.

A subpoena was issued for appellant’s son, and the officer was on his way to serve it, but, before reaching appellant’s home, the officer met appellant, who told him he would accept service for his son, who was sick, and the subpoena was not otherwise served.

Neither of the physicians who signed the certificate set out above had attended the absent witness for about three weeks before the day of trial, but both physicians examined him the day before the case was called for trial. Neither of the physicians testified upon the hearing of the motion for a continuance.

When the court indicated that the motion for a continuance would be overruled, appellant’s counsel then asked a postponement for one week to obtain the attendance of the absent witness, but this request as well as the motion for a continuance was overruled, and appellant was placed upon trial over his objection.

It has been many times said that motions for continuances are so far under tbe discretion of tbe trial courts that tbe action of a court in overruling a motion for a continuance will not be reviewed or reversed unless there bas been an abuse of this discretion. Tbe majority of tbe court are of tbe opinion, however, that there was an abuse oif discretion, under tbe facts of this case, in refusing tbe continuance or tbe request to postpone for a week. Tbe discretion which tbe court bas is a judicial discretion, and not a discretion which can be exercised arbitrarily. Tbe witness was within tbe jurisdiction of tbe court, was in fact a resident of tbe county, and his illness was not of a kind likely to be long continued or fatal, and tbe certificate of tbe doctors was to the effect that it would be a gross injustice to tbe witness to require bis attendance at court. His testimony was highly material, as it would have corroborated that of bis father, and was in direct and sharp conflict with that of tbe only other witness who saw and heard all that was said and done preceding and at tbe instant of tbe shooting.

It is therefore tbe opinion of tbe majority — in which the Chief Justice and Justice Humphreys and tbe writer do not concur — that tbe motion for a continuance or for a postponement of tbe ease should have been granted, and, for the error in denying this request, tbe judgment will ■be reversed, and tbe cause remanded for a new trial.


text:
    Shreve v. Carter.
    Opinion delivered July 2, 1928.

      Joiner & Stevens, for appellant.

      Mahony, Yocum ■& Saye, for appellee.
   Smith, J.

Appellant filed a complaint which .contained, in substance, the following allegations.

That on April >8, 1926, she purchased from defendants, J. W. 'Carter and Mayme, his wife, a strip of land eight by one hundred and fifty feet off of a lot in the city of El Dorado; “that the defendants on that day executed and acknowledged to her their warranty deed, and deposited the same in the National Bank of Commerce, and on the same day this plaintiff deposited the consideration of $120 in said bank for these defendants; that, under the contract plaintiff had with defendants, title was to pass on that day, and did pass at that time; that it was agreed that plaintiff’s title was to be free from any and all liens, and was to be in fee simple.” That, four days later, defendants executed a deed of trust to the First National Bank covering the strip conveyed to plaintiff and other lands to secure a loan of $4,280,'which deed of trust, dated April 12, 1926, was filed for record April 13, 1926; that defendants inserted in their deed to plaintiff a clause which read that the deed was made subject to the deed of trust to the bank; that said clause was written in said deed after the consideration had been paid and the title passed, and without the knowledge or consent of this plaintiff, and is a cloud upon the title of this plaintiff. As soon as the plaintiff discovered this alteration of the deed, she went to the defendants and asked that they mate another deed in accordance with their contract. That defendant Carter undertook to destroy the deed, but she would not permit him to do so, as it'was the only w^ritten evidence of the contract. That defendant Carter and his wife refused to make another deed or to remove this cloud from her title, although the owner of the deed of trust agreed to release the strip of land here in question from the deed of trust if the defendants would request that action, but that they declined to make the request. That on the 24th day of June, 1926, in a further effort to cloud the title of this plaintiff, the defendant J. W. Carter executed a warranty deed to his wife, conveying this strip' of land, which deed is alleged to be void, but a cloud on plaintiff’s title, which defendants have refused to ' remove after request so to do, and the defendant Mayme Carter claims to own said land under said deed. That the plaintiff is in possession of said property, and has been all the time. ’ ’

Upon these allegations plaintiff prayed “that the defendants be required to perform their contract by delivering to her a good and fee simple title to this land, free from liens,, and that her title he quieted and confirmed as against them, and, if they do not remove the lien on said land, that she have judgment in damages in the sum of $1,500, and for all other legal and equitable relief. ’ ’

A demurrer to this complaint was filed and sustained, and, as plaintiff stood on her complaint, the same was dismissed as being without equity, and from that decree is this appeal.

It obviously appears that the complaint is very loosely drawn, but this affords no ground of demurrer if a cause of action is stated, however defectively, and in determining whether a cause of action has been stated, every allegation made therein, together with every inf er-enlce which is reasonably deducible therefrom, must be considered. Brown v. Ark. Central Power Co., 174 Ark. 177, 294 S. W. 709, and cases there cited.

A motion to make the complaint more definite and certain was not filed, but, had the demurrer been treated as a motion to that effect, the motion should have been sustained in the particulars indicated herein.

It is insisted that the demurrer was properly sustained for several reasons.

(1). That the complaint shows on its face that plaintiff accepted a deed which was made subject to the deed of trust, that exception having been incorporated in the deed before its delivery to plaintiff.

The allegations of the complaint do not necessarily imply that plaintiff accepted a deed made subject to the deed of trust. It is argued that the deed was placed in escrow with the bank, and, while so in escrow, the alteration was made, and that this alteration appeared in the face of the deed, and that plaintiff accepted the deed as altered, and thereafter paid the consideration recited therein. Bnt it was not alleged that the deed was in escrow and was altered while it was. On the contrary, the allegation of the 'complaint is that the deed was delivered to the hank for plaintiff, and that she paid to the hank for defendants the agreed consideration for the deed, and that the title passed when these events occurred. There are no allegations that there were any conditions to he performed by either the plaintiff or the defendants after the deed and its consideration had heen placed in the hands of the hank. A motion to require a specific allegation of the conditions under which the deed was placed in the possession of the hank would have been proper and appropriate.

If the hank was constituted the agent for each of these parties, with no duty to perform except to deliver the deed as originally executed and without the alteration, upon receipt of the purchase money, and while so holding the deed the hank received for defendants the purchase money, there was a delivery of the deed, and the title to the land there described passed upon that delivery, although the hank may not have actually turned the deed over to plaintiff until a later date and at a time when defendants had altered it.

In the case of Russell v. May, 77 Ark. 89, 90 S. W. 617, Mr. Justice Battle, for the court, said:

“A delivery of a deed is essential to its validity. It cannot take effect without delivery, and what is a delivery depends upon the intention of the grantor. Any disposal of a deed, accompanied by acts, words, or circumstances which clearly indicate that the grantor intends that it shall take effect as a conveyance, is a sufficient delivery.”

A full recital of the conditions upon which the deed had heen delivered to the hank should have heen required had a motion to that effect heen made, and such a recital might show that the alteration of the deed had heen made before a delivery to plaintiff had heen effected, in which event the plaintiff would have had the option to refuse to accept the deed and to demand the return of her money by the bank, or t0‘ have demanded the specific performance of the contract to convey an unincumbered title, and, if it had become impossible to grant that relief, to ask damages for the breach of the contract. If, on the other hand, as defendants argue (but not as the complaint alleges), plaintiff accepted a conveyance made subject to the deed of trust, she must be content with her purchase, and cannot ask the court to decree her something she did not buy, to-wit, an unincumbered title. Geren v. Caldarera, 99 Ark. 260, 138 S. W. 335.

(2). It is argued that the demurrer was properly sustained because it was not alleged that the alteration of the deed was the result of a mutual mistake. A mutual mistake affords ground for the equitable relief of reformation, but it is not the only ground upon which that relief will be awarded. As we have said, the complaint is susceptible of the construction, in its existing form, of alleging that the deed was altered after its delivery to plaintiff and after the payment of the consideration, and without plaintiff’s knowledge or permission. If true, this is a fraud which equity would correct by reformation, if there were no intervening rights of innocent third parties which prevented the granting of thiat relief. Craig v. Simpson, 170 Ark. 214, 279 S. W. 996. The complaint alleges, however, that the owner of the deed of trust has offered to release the strip of land from the deed of trust.

(3). It is next insisted that the demurrer was properly sustained because it appears from the complaint that plaintiff has not been evicted from her possession. The suit is not primarily one for damages, and that relief is prayed in the event only that plaintiff’s title is not quieted.

It is finally insisted that the deed from Carter to his wife is not a cloud on plaintiff’s title, for the reason that .the complaint alleges the execution of this deed subsequent to the execution of the deed to plaintiff, and that, if Mrs. Carter had any title, it would pass to plaintiff as an after-acquired title under § 1498, C. & M. Digest, because Mrs. Carter was a party to the warranty deed to plaintiff.

It is true an after-acquired title inures to the bene fit of the grantee of one who has conveyed real estate by a deed purporting* to convey the same in fee simple absolute, but the allegations here are that the Carters owned the land conveyed to plaintiff, and that Mr. Carter later conveyed to his wife, “who is claiming to own said property adverse tó the plaintiff.” We think these allegations are sufficient to entitle plaintiff to maintain a suit to quiet the title against the idaim of Mrs. Carter.

We conclude therefore that a cause of action was stated — very defectively, it is true — and that the demurrer to the complaint should not have been sustained, and the decree dismissing the complaint will therefore be reversed, and it is so ordered


author: 'Smith, J. Mehafey, J.

text:
    Fort Smith v. Roberts.
    Opinion delivered July 2, 1928.

      D. L. Ford and Pryor, Miles & Pryor, for appellant.

      Warner, Ilardm & Warner and Wallace Bourland, for appellee.
   'Smith, J.

Special act No. 629, passed at the regular 19191 session of the General Assembly (Special Acts 1919, page 870), is lan act entitled “An act to consolidate the health and sanitary offices in the Fort Smith District of Sebastian County, to abolish existing offices, to create a district board of health therein, and give it jurisdiction to select certain officers and to superintend their duties, to provide for the expenses incurred in such service, and for other purposes.”

The preamble of the act recites that the Fort Smith and Greenwood districts of Sebastian County have separate fiscal systems as distinct as two counties, and that the city of Fort Smith embraces seventy-five per cent, of the area of the Fort Smith district and over ninety per cent, of the population and of the assessed valuation of said district, and that the city of Fort Smith is governed by a commission form of government, and that for these reasons the general laws of the 'State providing for the county health officers and city health officers result in an overlapping of duties and a confusion of jurisdiction, and that a local bill is therefore necessary to make effective the objects and purposes of act 96 of the 1913 General Assembly and 'other acts upon the subject of the protection of the public health, and act No. 13 of the Acts of 1913, page 48. Act No. 96 is an act creating a State Board of Health and prescribing its duties, while act No. 13 is the act providing Fort .Smith with a commission form of government.

After the preamble set out above, the act of 1919 provides as follows: The county judge of the county, commissioner No. 1 of the city of Fort Smith, and a graduate physician elected by the county judge and the commissioner, are empowered to promulgate such rules and regulations, not in conflict with the rules and regulations of the State Board of Health, as may be deemed necessary to protect the public health in said district. The act abolished the county health officer provided by act No. 96 of the Acts of 1913 in so far as it applied to the Fort Smith district of Sebastian County, and also abolished the office of city health officer of the city of Fort Smith, and the office of city physician. In the place of the offices abolished, the Fort Smith District Board of Health was created, and given the power to appoint a district health officer, who should be subject to the orders of the district ‘board of health and the State Board of Health. Various duties were imposed on the district board olf health, which need not be recited, but the board was expressly given the right of .supervision of all dairies, meat and grocery stores, etc., as to their sanitary condition.

The boiard of health of the Fort Smith district duly organized pursuant to act 629 of the Acts of 1919, and, among other actions taken by the board, was to provide for slaughtering animals for human consumption at an abattoir to be erected in tbe suburbs of Fort Smith, and a graduate veterinarian was appointed to supervise its operation. In aid of the regulations of the board of health, the commissioners of Fort Smith passed an ordinance prescribing the fees which should be charged butchers for the use of the abattoir and the fines which should be imposed upon butchers who slaughtered animals in violation of the rules and regulations of the district board of health. The ordinance of the city provided various regulations in regard to the operation of the abattoir which were supposed to be conducive to sanitation in slaughtering animals. The city ordinance also provided that any citizen might erect an abattoir under plans and specifications to be approved by the district board of health, in accordance with the rules of the board of health and the city ordinance.

An abattoir was erected and paid for in the proportions provided by act 629 of the Acts of 1919, and, after it had been in operation something over two years, appellees, who had been patrons of the abattoir during that time, brought this suit to test the constitutionality of the act under which the abattoir had been erected and operated. They also alleged that the abattoir was being operated in an unreasonable and.arbitrary manner, and that excessive fees were being charged for the services rendered. The plaintiffs prayed that the act of 1919 land the ordinance of the city and the rules and regulations of the district board of health passed in furtherance thereof be declared unconstitutional, and that the continued operation of-the abattoir be enjoined, and that the city be enjoined from prosecuting plaintiffs or other persons for violations of the city ordinance and the rules and regulations of the board of health.

The court, with the consent olf the parties, appointed a master to hear testimony and to report upon the operation of the abattoir, and, in this connection, an expert accountant was appointed by the master, who made an extended investigation of the revenues and expenditures ■ of the abattoir and detailed report thereof. The report of the accountant showed that the abattoir operated from January 1, 1925, to January 1, 1926, at a profit to the city and county of $264.82, while its operation from January 1, 1926, to April 1, 1927, was at a loss of $3,594.33, and there does not appear to he any question about the correctness of these figures, at least they are not shown to be incorrect. There may be some unnecessary or avoidable expense in the operation of the abattoir, but the master to whom the cause was first referred reported that there was not. This master further reported that the facilities furnished at the abattoir were reasonably sufficient for the purposes for- which it was intended, although its facilities were not sufficient for all the butchers of the city to use it at the same time, but that an abattoir of that size would be impractical because of the great expense attached to its operation, but that the abattoir was kept open and in operation from 8 a. m. to 5 p. m. every week day, and that all butchers were thus afforded an opportunity to use its facilities.

The court set aside, on exceptions of the plaintiffs, the report of the accountant and that of the master, and proceeded to hear certain oral testimony, after which the cause was again referred to another master, whose report was later approved by the court. This last report appears, however, to have covered only the amounts paid by each of the plaintiffs since the establishment of the abattoir and the total amount charged against each of them, respectively, for services at the abattoir since the grant of a temporary restraining order by the court, and the number and kinds of animal-s slaughtered by each of the plaintiffs. The second master does not appear to have considered or to have made a report upon the cost of operating the abattoir.

The le.arned chancellor prepared an elaborate opinion in the case, in which he refused to hold unconstitutional the act of 1919 or the rules and regulations of the board of health or the ordinance of the city making these rules -and regulations effective, but he did hold that. the fees charged at the abattoir are arbitrary and excessive, and are in the nature of a revenue, and are discriminatory against local butchers and stock riaisers, and unduly favor packers whose meats are shipped into the city in interstate commerce, as these meats do not pass through the abattoir and are not subject to the fees oharg-ed local butchers who use the abattoir.

The first question presented is, of course, that of the constitutionality of act 629 of the Acts of 1919; and we concur in the opinion of the court below that the act is constitutional. The power of the Legislature to enact laws to protect'the public health and to impower the cities and towns of the State to do likewise has always been recognized.

In the comparatively early ease of Waters v. Townsend, 65 Ark. 613, 47 S. W. 1054, it was held that a city council may confer upon its board of health power to abate nuisances dangerous to public health, that power having been granted by an act of the General Assembly.

The leading case on the authority to regulate markets is the case known as the Slaughter-house Cases, reported in 16 Wallace 36, 21 U. S. (L. ed.) 394. In that case the Supreme Court of the United States upheld an act of the Legislature of Louisiana which granted to a corporation created by it the exclusive right for twenty-five years to have and maintain slaughter-houses, landings for cattle, and yards for inclosing cattle intended for sale or slaughter, within certain parishes of the State, including the city of New Orleans, and prohibiting all other persons from building, keeping or having slaughter-houses, landings for cattle, land yards for cattle intended for sale or slaughter within the defined limits, and requiring that all cattle and other animals intended for sale or slaughter in the district should be brought to the yards and slaughter-houses of the corporation, and authorizing the corporation to exact certain prescribed fees for the use of its wharves and for each animal landed, and certain prescribed fees for each animal slaughtered. It was held by the Supreme Court of the United States tliat this grant of exclusive right or privilege, guarded by proper limitation of the prices to he charged and imposing the duty of providing ample conveniences, with permission to all owners of stock to land and olf all butchers to slaughter at these places, was a police regulation for the health and comfort of the people, within the power of the State Legislature to pass.

The act here under review and the rules and regulations of the board of health and the ordinance of the city enforcing them are far less comprehensive in their scope than was the act of the G-eneral Assembly of the State of Louisiana which the Supreme Court of the United States upheld, and we all concur in the opinion of the chancery court that the act of the Legislature and the ordinance of the city making effective the rules and regulations of the board of health are not unconstitutional. Trigg v. Dixon, 96 Ark. 199, 131 S. W. 695; Carpenter v. Little Rock, 101 Ark. 238, 142 S. W. 162.

It is insisted, however, that the Legislature has not itself exercised this police power by appropriate legislation, but has delegated that function to an administrative board having no power to legislate; and this we conceive to be the real question in the case.

In the case of State v. Martin and Lipe, 134 Ark. 420. 204 S. W. 622, it was said that “it is a well-established rule o(f law that legislative bodies have no right to delegate the lawmaking power to executive officers or administrative 'boards, but it is settled in this State that the Legislature mav delegate ‘the power to determine some fact or state of things upon which the law makes or intends to make its own action depend’.”

The case just emoted from involved the validity of a rule of the 'State Board of Health regarding the vaccination of children and the presentation of a certificate showing- a successful vaccination asa condition precedent to enrollment as a pupil in the public schools of the State, and the rule was upheld as a valid exercise of the police power and as not being a delegation of legislative power to the board of health.

This case cited and, approved the earlier case of Davis v. State, 126 Ark. 260, 190 S. W. 436. In the Davis case, act 86 of the Acts of 1915, page 338, was attacked as being unconstitutional, for the reason that it delegated legislative functions to the hoard of control of the Agricultural Experiment Station, in that it permitted the board of control “to promulgate necessary rules and regulations” to make effective the laws oif the State in relation to cattle-tick eradication without prescribing a penalty for a violation of such rules and regulations. Pursuant to the authority of the act of 1915, the board of control promulgated various rules and regulations in regard to dipping cattle in tick-infested districts. It was conceded by counsel in that case that the Legislature hiad the right to delegate to the 'board the duty of promulgating rules. While the concession of counsel was not binding upon us, the legislation was upheld as a valid exercise of the police power.

In 12 R. 'C. L., page 1265, § 3 of the chapter on Health, it is said:

“The power granted to administrative boards of the nature of boards of health, to adopt rules, by-laws, and regulations reasonably adapted to carry out the purpose or object for which they are created, is generally held not to be a delegation of legislative authority in violation of the usual constitutional prohibition. Such a delegation generally comes within the rule that, while it is necessary that a law, when it comes from the lawmaking power, should be complete, still there are m'any matters relating to methods or details which may be, by the Legislature, referred to some designated ministerial officer or body, and that all such matters fall within the domain of the right of the Legislature to authorize an administrative board or body to adopt ordinances, rules, by-laws, or regulations in aid of the successful execution of some general statutory provision. But a statute authorizing a State board of health to make such regulations as in its judgment may be necessary for the protection of the people from dangerous contagious diseases, and giving it power to designate what diseases are ‘contagions’ or ‘dangerous’ to the public health, has been held to be a delegation of legislative power not authorized 'by the Constitution. ’ ’

At § 11 of the same chapter it is said:

“Health regulations are of the utmost consequence to the general welfare, and, if they be reasonable, impartial, and not against the general policy of the State, they must be submitted to by individuals for the good of the public. The constitutional guaranties that no person shall be deprived of life, liberty, or property without due process of law, and that no State shall deny to any person within its jurisdiction the equal protection of the laws, were not intended to limit the subjects upon which the police power of ia State may lawfully be exerted in this any more than in other connections. Nor does the contracts clause of the Federal Constitution prevent the adoption of health regulations. However, legislative authority in this field of the police power, the same as in any other, is fenced about on all sides by constitutional limitations. It cannot properly extend beyond such reasonable interferences as tend to preserve and promote the enjoyment, generally, of those inalienable rights with which all men are endowed, and to secure which governments are instituted. The Legislature may not, under the guise of police regulation, arbitrarily invade private property or personal rights. The test when such regulations are called in question is whether they have some relation to the public health or public welfare, and whether such is, in fact, the end sought to be attained. A regulation imposing a burden on interstate commerce may of course be an invasion of the province of the Federal Government; but when it has real relation to the suitable protection olf the people of the State, and is reasonable in its requirements, it is not invalid because it may incidentally affect interstate commerce, provided it does not conflict with legislation enacted by 'Congress pursuant to its constitutional authority. ’ ’

The annotator, in the note to the text quoted, collected many cases supporting- the text.

In the case of Milwaukee v. Gross, 21 Wis. 241, 91 Am. Dec. 472, there was involved a city ordinance establishing a slaughter-house and regulating its management, and declaring it unlawful to slaughter any animal within the corporate limits of the city except at the city slaughter-house, and it was held by the Supreme Court of Wisconsin that the ordinance was not so unreasonable as being in restraint off trade as to justify the court in holding it invalid. In the annotator’s note to this case it was said by the annotator that the power to establish and regulate markets (a right which many decisions of this court have held was possessed by the cities and towns of the State) includes power to purchase a site and erect the necessary buildings and stalls upon it, and, when provided, to adopt such rules in regard to it and the business to be there transacted as may be deemed reasonable and just.

Of course, the regulations must be reasonable and just, and it is not permissible, under the guise of regulation, to exact such fees as would make the abattoir a necessary source of revenue to the city and county, although the fact that the abattoir was not operated at a loss would not make the city ordinance a revenue measure. Numerous decisions of this court have defined the difference between regulatory ordinances passed as revenue measures and those ordinances passed for purposes of regulation from which an incidental profit to the municipality is derived, a late case being that of North Little Rock v. Kirk, 173 Ark. 554, 292 S. W. 993. Those of the first class, which are enacted for the purpose of raising revenue, are invalid; those of the latter class, from which a profit may be incidentally derived, are valid.

We think the undisputed testimony shows that no profit is derived from the operation of the abattoir. This, however, is not the only test of the reasonableness off the regulations. The fees charged might not be a source of revenue, and yet be so burdensome as to drive butchers using tbe ¡abattoir out of business by depriving them of a reasonable profit in the operation of their business. We do not think that 'showing was made in this case. In the first place, the ordinance permits a butcher to erect his own abattoir upon plans approved by the district board of health.

It is essential that there be a place where animals may be butchered, and the nature of that business is such that its regulation is proper and necessary to protect the public health. All the cases on the subject so hold. The testimony shows that the charges first fixed by the city commission were unnecessarily high, and they were voluntarily reduced. The fees now charged ¡are insufficient to pay operating costs, and the city and the Fort Smith District of the county are paying the deficit.

The Ifees now charged are as follows: Cattle, one year or older, 75 cents each; calves and cattle under one year, 35 cents each; hogs, 40 cents each; goats and sheep, 30 cents each. For this service charge there is furnished a superintendent and two helpers and a graduate veterinarian, with an inspection of the animals to be slaughtered both ante and post mortem. The abattoir consists of thirteen stockpens, chutes, two refrigerator boxes, an ice-machine, hooks, rollers, and other appliances necessary for handling carcasses, together with the necessary hot and cold water. The butchers are not required to clean the place after using it, as this work is done by the employees, whose wages are a part of the operating expense of the abattoir.

It is true that dealers in meats which are shipped into the city by the nonresident packers in interstate commerce avoid this expense which the local butchers bear, but we judicially know that such meats have been inspected under Federal laws, and the purpose of all the regulation by Federal, State or municipal authorities is to have the meats inspected so that it may be known that they are fit for human consumption.

It is argued that the testimony (failed to show that any of the animals slaughtered at the abattoir have been rejected in either ante mortem or post mortem examinations, and that therefore the inspections are perfunctory and valueless. This does not follow. It is not to be assumed that the inspectors are not discharging their duties. It is more probable that, knowing there will be an inspection, no animals are brought to slaughter which are diseased.

The majority of the court have concluded that the testimony does not show that the fees charged are unreasonable, excessive, discriminatory, or arbitrary; that the legislation is not unconstitutional, and that the regulations of the district boárd of health are not unreasonable.

The decree of the court below must therefore be reversed, and it is so ordered, with directions to dismiss the complaint as being without equity.

Mehafey, J.

I agree with the majority opinion that the law is constitutional, but in my opinion the act does not authorize the expenditure of money for the erection and maintenance of an abattoir. Mr. Chief Justice Hart and Mr. Justice Humphreys agree with me in these views.