text:
    Parker v. State.
    Opinion delivered October 5, 1925.
    1. Homicide — foundation for admitting dying declaration. — Evidence held to establish that a sufficient foundation was laid for the introduction of a statement purporting to he a dying declaration.
    2. Homicide — dying declaration — instruction.—an instruction to the jury that, before they could consider an alleged dying declaration, they must believe beyond a reasonable doubt that the declaration was made at a time when the deceased himself believed that death was imminent and that every hope of this world was gone. and. that, if the jury .so believed, they should consider the offered testimony in connection with all the other evidence in the case, held proper.
    3. Criminal law — harmless error. — One convicted of' murder in the second degree cannot contend on appeal that if he was guilty of any offense it was murder in the first degree, and therefore that the verdict was not supported by the evidence.
    4. Criminal law — accomplice as principal offender. — Under Crawford & Moses’ Dig., § § 2308, 2309, 2311, one wiho stands by, aids, abets, or assists, or who. is present ready and consenting to aid and abet, shall be deemed a principal offender and indicted and punished .as such.
    5. Criminal law — repetition of instructions. — It was not error to refuse instructions fully covered by others already given.
    Appeal from Deslia 'Circuit Court; T. G. Parham Judge;
    affirmed.

      P. L. Neville, Geo. D. Hester and H. H. Hays, for appellant.

      H. W. Applegate, Attorney General, and Darden Moose, Assistant,'for appellee.
   Wood, J.

The appellant was indicted in the Desha Circuit Court for the 'crime of murder in the first degree in the killing of one Jim Osborne. The testimony tended to prove that on the night of June 12, 1924, a negro by the name of “James” robbed one B. Smith in the town of Gould, Lincoln County, Arkansas. Smith related the occurrence to Jim Osborne, an officer, who, on the following morning about seven o’clock went to the home of Isaac Parker in search of “James.” As he approached the home of Parker, he was shot with a double barrel shotgun and died from the effects of the wounds. As Osborne went through the gate to the Parker house, he asked the appellant, if “James,” the negro he was looking for, was in there, and appellant answered “No.” Osborne then started toward the house, and Parker called to the other negro and said, “Here he comes; kill him..” Osborne then heard the 'gun fire. The load struck him in the arm and side, his arm being across his side and stomach. Upon being shot, Osborne turned to run, and the negro on the inside shot him a second time.

The following document, over the 'objection of the ■appellant, was introduced in evidence:

“Dumas, Desha County, Ark.
6/16/24.
“Tthis is to certify that as I, Jim Osborne, was going through the gate to the Parker house (this is the negro Parker who had his head tied up and 'supposed to have had mumps), I asked Parker if this negro I was looking-for was in there, and he said ‘No.’ I then started - towards the house, and Parker called to this other negro and said, ‘Here he comes; kill him.’ I then heard the gun fire, the load striking my arm and side (my arm being across my side and stomach). Hpon being shot I turned to run, and he followed me up and shot me the second time. I, Jim Osborne, being in my right mind, hereby state that the foregoing is true and correct statement of facts.
(Unsigned)
“Sworn to and subscribed before me this June 16, 1924. (Signed) J. E. Mess, Justice of the Peace.”

Before the 'above statement was read to the jury Dr. Isom testified that he had been practicing medicine and surgery since 1906 and was in charge of the hospital at Dumas, Arkansas. Some time the last of June Osborne was brought to his hospital suffering from 'gun shot wounds in his right arm, abdomen and back. He was shot from almost the base of the skull down to his feet. There were 25 or 50 shot in the right side of the- abdomen. He lived four days after he came to the hospital and died as the result of the wounds. When he came, his pulse was hardly perceptible — there had been a considerable loss of blood. The witness told Osborne that he didn’t have mkuch chance to live. After witness became thoroughly convinced that Osborne would 'die, he informed Osborne that in all probability he would not get well, and told him if he wanted to state the facts to some one before he died, • ■witness would get a .justice of the peace and have him taire down the statement in writing. Witness sent for J. E. Moss, the justice of the peace, who reduced Osborne’s statement to writing as above.

The following occurred during the trial:

“The Court: When you advised that in your opin- ' ion he couldn’t live, and told him he had better make a statement, what did he say? A. He- didn’t say anything except he wanted to make a statement. He didn’t make any manifestations. Q. How did you tell him about the statement? A. I just told him that in all probability he couldn’t get well and asked him if he wanted to make a statement. Q. What did he say? A. Said he wanted to make a statement. The Court: Your objection will be overruled and exceptions noted.”

Witness further testified that Osborne didn’t at any time from the time he was carried to the hospital until the statement was made make any different statement, but he made the same statement séveral different times. His arm had been amputated two days bef ore his death.

The declaration introduced w)as made about ten o ’clock in the morning, and Osborne died about 3:00 o’clock the following morning. The deceased never told witness that he believed he was going- to die, and witness didn’t have in mind what impression he might have made when he told him his condition. At the time he made the statement his mind was clear, and he was not suffering-great pain.

There was further testimony on behalf of the State to the effect that, on the morning Osborne was shot, the appellant was at his father’s house with his head tied up with a White rag. There Were four shotguns in the house, a pistol and a twenty-two rifle. The shotguns were loaded with buckshot. One -of the witnesses who helped to take the deceased to the hospital stated that he found Osborne lying under a tree pretty weak from loss of blood. He said he was shot pretty bad, and when witness picked him up in the road Osborne said, “I am all shot-to pieces— hurry and get me a doctor.”

J. E. Moss, the justice of the peace, testified that he reduced Osborne’s statement to -writing in -his presence and read it -over to him. Witness further testified that appellant stated at the examining trial that he was in the house at the time of the shooting'.

Dr. McClenden, another physician, testified that he had been practicing’ medicine about 32 years. He knew Osborne, the deceased; was his physician. Osborne was brought to his -office shortly after he was shot and placed on’ a table. He was shot twice — in the side and in the back — thirteen to fifteen shot entering his bowels. Some shot went in his armis and -some in the calves of his legs. He didn’t have much chance from the time he was shot. Witness didn’t think he could get well and told him so, and Osborne understood what witness said. Osbomeasked witness what he thought about his condition and witness informed him. Osborne -did not -do or say anything to indicate that he thought to the contrary. The witness was then asked to state to the jury what Osborne said to him as to h'ow the shooting happened. “He said he was out there after this darkey. When he opened the gate and started in the yard, this boy that was being tried said to the other negro, ‘ There is the white son of a b — . Shoot him. You said you were going to do it. ’ And as Osborne started on the steps the negro shot him. He said he shot him through the door of the room of the Parker home. Osborne told witness the above probably an hour -after he was shot. On cross-examination, the witness stated that Osborne called the name -of -the boy that shot him and said it was Isaac Parker, the one that had -the mumps. But on redirect examination the witness stated that he 'said that it was the boy that had his head tied up who told the other one to do the shooting.

The appellant testified in substance that Osborne came to appellant’s father’s house where appellant was and met appellant on the outside and said, “I see that fellow inside. He has come. Tell him I want to see him, to come cut. Call him.” Appellant replied, “I can hardly talk, but will tell him you want him. ’ ’ Appellant went in the east room and lay down -and about that time he heard the shot and heard the man say, “Oh, Lord, don’t shoot any more. I won’t shoot you.” When appellant got up, the man was going out of the front gate, and the other man was going out of the side gate to shut him ¡off and shoot him again. Appellant didn’t see “James” when Osborne ¡said he saw him. “James” was not in the house when appellant went in — not that appellant knew of. Appellant made no remarks to “James” about shooting Osborne, and didn’t know “James” had been in trouble and didn’t know Os'borne was an officer.

The jury returned -averdict finding appellant guilty of murder in the second degree ¡and fixing his punishment at fifteen years’ imprisonment in the -State penitentiary. He was sentenced by judgment of the court to the penitentiary in accordance with the verdict, and he duly prosecutes this appeal.

-Sufficient foundation was laid for the'introduction of the statement purporting to be the dying 'declaration of Oisborme. The trial court instructed thé jury in effect that, before they could -consider such evidence, they rnlust believe beyond a reasonable doubt that the declaration w)as made at a time when the -deceased himself believed that death was imminent and that every hope of this world was gone; that, if the jury so believed, they should consider the -offered testimony in connection with all the -other evidence in the case. This -instruction w-as in accord with the law as declared by this court in several cases. Rhea v. State, 104 Ark. 162-176; Cantrell v. State, 117 Ark. 233-38; Paul v. State, 125 Ark. 209-213 and cases cited in those cases; Alford v. State, 161 Ark. 256.

In Paul v. State, supra, we ¡said: “While dying declarations to foe -admissible must be made under consciousness ¡of impending death and without expectation or hope of recovery, it is not necessary that the declarant should -expressly -state that -they are s-o made, but it may also foe inferred from his wounded condition and evident danger, from expressions ¡or ¡statements made to him ¡or in his hearing by physicians or others in attendance, from Ms manner and conduct, and other circumstances.”

The circumstances in the case at bar were certainly sufficient to justify the jury in concluding that the statement of Osborne was made with the consciousness that he was bound to die.

Tjhe testimony of the dying declarations of Osborne being admissible, those declarations' were sufficient, if believed by the jury, to have warranted them in returning a verdict finding the appellant guilty of murder in the first degree. There was no evidence tending to prove that the appellant was guilty of murder in the second degree, nevertheless the jury found him, guilty, thus showing that they credited the dying declarations of Osborne. We have often ruled that “one convicted of murder in the second degree cannot contend on appeal that if he was guilty of any offense it was murder in the first degree, and therefore that the verdict was not supported by the evidence.” See syllabus 3 in Freeman v. State, 150 Ark. 387. Also Rogers v. State, 136 Ark. 161, and cases cited in above cases.

In Rogers v. State, supra, we said at page 174: “Where the indictment charges murder in the first degree, and the undisputed evidence shows that the accused, if guilty at all, is guilty of murder in the first degree, then it is not error for the court to refuse to give instructions authorizing the jury to return a verdict of guilty of one of the lower degrees of homicide. But, on the other hand, it is not prejudicial error for the court to give an instruction on the lower degree in such case, because the error is one ¡that results to the defendant's advantage. While it is error to give an abstract instruct tion, yet, under .the settled rule ¡of this court, if it affirm,atively appears that.fhe rights of the accused are not prejudiced thereby, the judgment will not be reversed for such error. ’ ’

In'its instruction No. 7, the court told the jury in substance in the first paragraph that, if they found from the evidence that the appellant wilfully, unlawfully, feloniously, and with malice aforethought and after premeditation and deliberation shot and killed Osborne with a shotgun, as charged in the indictment, they should find him guilty of murder in the1 first degree. And in the second paragraph of the instruction the court told the jury that all persons being present, aiding and abetting, or ready and consenting to aid and abet, in the commission of any felony, shall be deemed principal offenders, and indicted and punished as such; and if they found from the evidence that one “James” shot and killed Osborne with a shotgun wilfully, unlawfully and feloniously, with malice aforethought and after premeditation and 'deliberation, and that appellant was present aiding and abetting in the commission of the crime, or ready and consenting to aid and abet, then they should find the appellant guilty of murder in the first degree.

Under our statute, one who stands by, aids, abets, or assists, or who is present ready and consenting to aid and abet, shall be deemed a principal offender and indicted anid punished as such. Sections 2308, 2309 and 2311, C. & M. Digest. In Hunter v. State, 104 Ark. 245-248, we quoted -from 22 Oye. as followis: “Where, by statute, the distinction between princip'als in the first and second degree is abolished, am indictment of a principal in the second degree need not aver any facts other than those requisite toi an indictment of the principal in the first degree.” And we continued, saying: “One present aiding and abetting the commission of a felony, formerly a principal in the second degree, is, under1 the statute, responsible for the result of the act done as though he had done it himself,' a principal offender, and must be indicted and punished as such; 'and, in charging appellant with having stabbed the deceased with a knife, his act was stated according to its legal effect, and a verdict upon testimony tending only to show that he was present, aiding and abetting in the commission of the offense is responsive to the charge, and not a variance therefrom. There is no longer a distinction between principals in the first and second degree, but 'all are principal offenders, and are required to be indicted and punished as such. ’ ’ See other cases there cited.

The indictment follows ¡the language of' the statute. The itestdmomy -on the part of the State tended to- prove that appellant wais present, ready and consenting to aid and aJbet James in the killing of Osborne. The appellant, therefore, under the statute was a principal offender and wias properly indicted as such. The verdict of the jury finding appellant guilty showed that they1 believed the testimony on the part of the State. It was wholly immaterial under the indictment and the proof on the part of the State, whether the appellant killed the .deceased by actually shooting him with his own hand or whether, being present, he was ready and -consenting to aid aujd abet James in the killing of Osborne. . According to- the pro-of on the part of the State, he was guilty of murder in the first degree by being present, ready and consenting -to aid James, even though he did not actually fire the shot himself.

The second paragraph of the instruction, when considered as a whole, -cannot be fairly interpreted to mean, as contended Jby learned -counsel for appellant, that it allowed the jury to convict 'the appellant if they believed he was ready and consenting to aid therein, whether present or not. There was no -specific objection to the phraseology of the instruction, and the only reasonable construction to be put upon it is, that the jury were authorized to convict the appellant if they believed that appellant, being present, aided and abetted, or, being present, was ready and -consenting to aid -and -abet James in the killing of Osborne. If counsel deemed that .the instruction was susceptible to- the ¡construction they now give it, they should have drawn the attention of the trial court to the language by a specific objection. See Lockett v. State, 136 Ark. 473-477. In the case of Burnett v. State, 80 Ark. 225-227, the court having under consideration an -objection of similar purport, speaking through Chief Justice Hill, used the following language: “But, the court having used the- esa-ct language of the statute, which is reasonably clear, it devolved upon the appellant to point out this formal defect if he was not satisfied that the form of this instruction correctly presented the thought of it,. ’ ’

The fact that the jury returned a verdict finding appellant guilty of murder in the ¡second degree ¡showed that they believed him guilty, ¡and whether this improper verdict was through inadvertence or intentional, it was nevertheless a ¡clemency exercised by the jury toward the appellant which surely was not prejudicial to any of his rights at the trial, and of which he therefore cannot complain. See Rogers v. State, supra; Freeman v. State, supra.

The court did not err in refusing to give appellant’s prayers for instruction relating to the presumption of innocence and reasonable doubt. Because, although these prayers for instructions were correct, they were fully covered by instructions numbered 12 .and 13, already given by the court on its own; motion.

We find no error in any of the rulings of the trial court. The judgment is therefore affirmed.


source: Caselaw Access Project

author: Hart, J.,

license: Public Domain

text:
    Baker Ice Machine Company v. Powell.
    Opinion delivered July 13, 1925.
    1. Principal and agent — evidence of relation. — The relation of principal and agent cannot be shown by the declarations of the •agent.
    2. Principal and agent — dealings between — rights of third party. — Even -if the evidence established that a construction company was the agent of appellant, yet where ,a sale of goods was made by appellant directly to such construction company, and by mistake certain articles were included in the shipment which the construction company had not bought, appellee had no right to retain such goods upon the ground that the construction company was indebted to it by reason of a breach of contract.
    Appeal from Washington Circuit Court; W. A. Dickson, Judge;
    reversed.

      STATEMENT BY THE COURT.
    Appellant brought this suit in the circuit court against appellees to recover possession of certain articles of personal property of the alleged value of $1,471.10. Appellees defended the suit on the ground that appellant had no title to the property sought to be recovered. On the 20th day of August, 1920, the Baker Ice Machine Company, Inc., entered into a contract in writing with the Moody Engineering Company, also a corporation, wherein it is recited that the latter is desirous of acting as the selling agent in the State of Arkansas for the sale of ice making and refrigerating equipment manufactured and sold by the former. The contract provided the terms upon which the material was to be sold by the Baker Ice Machine Company to the Moody Engineering Company. It also provided that the manufacturer would assist in advertising its goods in Arkansas, and the purchaser agreed to sell the equipment manufactured to the exclusion of similar equipment made by other manufacturers.
    Subsequently the Moody Engineering 'Company entered into a written contract with the Arkansas Cold Storage & Ice Company, at Fayetteville, Ark., to install certain equipment in its ice’ manufacturing plant. On the 20th day of November, 1922, the Moody Engineering Company wrote to the Baker Ice Machine Company, at Omaha, Neb., a letter as follows:
    “Gentlemen: Please enter this order for shipment in accordance with instructions given below. It is given with the understanding that shipment can be made. Kindly acknowledge receipt of same and give shipping date.
    “Necessary coils with headers and fittings for 340-can outfit to fit tank in accordance with dimension print attached. Arrange to use approximately 6,300' of 1%" pipe. Make coils in continuous bends with two sets of headers, one at each end of tank. Similar tank here in People’s Ice and Fuel Company.
    “With coil stands. See letter January 7, 1923.

      “Remarks: Skip to us at Fayetteville, Arkansas.’’
    Tke material was ordered by tke Moody Engineering Company, to be used in filling its contract with the Arkansas Cold Storage & Ice Company. When the material arrived at Fayetteville, it was unloaded by the Arkansas Cold Storage & Ice Company, preparatory to being used in installing the equipment in its ice factory. Subsequently the Baker Ice Machine Company wrote to the Moody Engineering Company that it had included by mistake in the car of material about 6000' feet of pipe in the shape of return 'bends, which was not intended to be done. The letter requested the Moody Engineering Company to return the material which had been shipped by mistake, and gave an exact description of the material to be shipped back to it. The Moody Engineering Company attempted to ship this extra material back to the Baker Ice Machine Company, but was prevented by the Arkansas Cold Storage & Ice Company from doing so. When the shipment was received, the Arkansas Cold Storage & Ice Company advanced to the Moody Engineering-Company the money with which to pay the freight and this included the material which is claimed by appellant was shipped by mistake.
    In the contract between the Arkansas Cold Storage & Ice Company and the Moody Engineering Company, the latter describes itself as the factory representative of the Baker Ice Machine Company. During- the progress of installing the equipment for the Arkansas Cold Storage & Ice Company, a payment of $3,000 was made to the Moody Engineering Company, which was described in the check used in making the payment as the factory representative of the Baker Ice Machine Company. Evidence was also introduced by appellees tending- to show that the Moody Engineering- Company did not comply with its contract with the Arkansas Cold Storage & Ice Company in installing- said equipment, and that the latter was damaged thereby in an amount greater than the value of the equipment sought to be recovered in this action. Other evidence will be referred to in the opinion.

      The jury returned a verdict in favor of appellees, and from the judgment rendered appellant has duly prosecuted an appeal to this «court.

      Rose, Hemingway, Cantrell S Loughborough, for appellant.

      Walker <$> Walker, for appellee.
   Hart, J.,

(after stating the facts). The sole ground relied upon for a reversal of the judgment is that the evidence is not legally sufficient to support the verdict, and in this contention we think counsel for appellant are correct.

We are of the opinion that there is no evidence in the record legally sufficient to show that the Moody Engineering Company was the -selling agent of appellant at the time the transaction in question was had, and, even if the Moody Engineering 'Company had been the selling agent of appellant, that would not help the case of appellees any, because the sale of the articles sought to be recovered by appellant was made directly to the Moody Engineering Company. In the cóntract between the Moody Engineering Company and the Arkansas Cold Storage & Ice 'Company the former designates itself as the factory representative of the Baker Ice Machine Company ; but this representation did not affect appellant.

It is well settled in this State that the relation of principal and agent cannot be shown by the declarations of the agent. Moore v. Ziba Bennett & Co., 147 Ark. 216. The designation by the Moody Engineering -Company that it was the factory representative of the Baker Ice Machine Company in its written contract with the Arkansas 'Col-d Storage & Ice Company could amount to no more than a declaration of its agency for the Baker Ice Machine Company. The latter could not be affected by this declaration because it was not a party to the contract, and it is not shown that it had any knowledge that such representation had been made.

For like reason, the writing in the check from the / rkansas Cold Storage & Ice Company to the Moody Engineering Company that the latter was the factory representative of the Baker Ice Machine Company amounted to no more than a declaration of its agency. It is not shown that the Baker Ice Machine Company ever saw the check or knew that any representation of agency had been written in it.

Even if it should be conceded that the proof was sufficient to establish such agency, this would not help the case of appellees. The reason is that the sale of the material in question was made directly by the Baker Ice Machine Company to the Moody Engineering: Company, and the former had as much right to sell to its agent as it did to any third person.

The Arkansas Cold Storage & Ice Company was not a party to the contract, and the fact that the material purchased by the Moody Engineering Company was to be used in its ice factory did not in any sense make the Arkansas Cold Storage & Ice Company a party to the contract or give it any rights thereunder. The order for the material or equipment was in writing signed by the Moody Engineering Company and was sent by it directly to the Baker Ice Machine Company. The Arkansas Cold Storage & Ice Company was not referred to in the contract, and the fact that the equipment purchased was to be installed in its factory did not give it any rights under the contract.

It is true that the car of material was unloaded at the plant of the Arkansas Cold Storage & Ice Company, and that the freight was paid by the latter company. The payment of the freight, however, was merely an advance , of money by the Arkansas Cold Storage & Ice Company to the Moody Engineering Company under its contract for installing the equipment in its plant. Therefore, the advancement of the money with which to pay the freight did not give the Arkansas Cold Storage & Ice Company any rights under the contract. The car of material was consigned directly to the Moody Engineering Company at Fayetteville, Ark., and the Arkansas Cold Storage & Ice Company was not considered in the matter at all by the Baker Ice Machine Company. Under these circumstances the fact that the material was unloaded at the plant of the Arkansas Cold Storage & Ice Company did not give it any rights in the premises.

The undisputed evidence shows that the material in question was included in the shipment by the mistake of the shipping clerk of appellant. This fact is testified to, not only by the agents of appellant, but by the president of the Moody Engineering Company. It is true that the material was suitable for use in the plant of the Arkansas Cold Storage & Ice Company, but it was not necessary. The material was laid out for a .job very similar to the one for the Arkansas Cold Storage & Ice Company, but it was not needed for that job and was in addition to the material which was ordered for -that job by the Moody Engineering Company. While it was suitable for the job, it was practically a duplication of that which was ordered and used on the .job and was not needed or used at all. It was included in the shipment made by appellant to the Moody Engineering Company by mistake, and the Arkansas Cold Storage & Ice Company had no right to prevent the Moody Engineering Company from returning the articles because that company had failed to comply with its contract, or for any other reason. The undisputed evidence shows that the material in question was shipped by appellant by mistake to the Moody Engineering Company, and the Arkansas Cold Storage & Ice 'Company had no right at all to prevent its return or to keep it.

The result of our views is that the court erred in not directing a verdict for appellant under' the evidence introduced, and for that error the judgment must be reversed, and the cause will be remanded for a new trial.


author: Wood, J. McCulloch, C. J.,

text:
    County Board of Education v. Austin.
    Opinion delivered June 29, 1925.
    1. Equity — diversion of school funds — jurisdiction.—The chancery court has jurisdiction to restrain county officers from appropriating- or using the school funds in their hands for any other purpose than the support of schools.
    2. Schools and school districts — diversion of school funds.— Speaial Acts 1919, p. 294, § 17, is in conflict with art. 14, § 3, and art. 16, § 11, of the Constitution, in so far as it requires the proportionate excess of fees from the school fund over the salaries of the treasurer and collector of Lonoke County to be covered into the county general fund, instead of into the school fund.
    3. Schools and school districts. — In determining the excess of fees and comimissions of the county collector and county treasurer of Lonoke County, under 'Special Acts 1919, p-. 294, the county court should charge to the school fund the proportion which the school tax collected bears to the total amount of taxes collected for the year; but in making this apportionment the court should noit consider the funds collected on special improvement district assessments, such assessments not being taxes within the meaning of the Constitution.
    4. Constitutional law — partial invalidity of act. — Section 17 of Acts 1919, p. 294, being unconstitutional,, may be stricken out without impairing the- remainder of the act, which remains complete in itself and capable of being executed in accordance with the apparent legislative intent.
    Appeal from,Lonoke Chancery Court; John E. Martineau, Chancellor;
    reversed.

      Trimble é Trimble, for appellants.

      W. J. Waggoner 'and Chas A. Walls, for appellees.
   Wood, J.

Act 173 of the Special Acts of 1919, page 294, is an act entitled “An act establishing and fixing the salaries and fees of the county officers for Lonoke County, Arkansas, and for other purposes.” The first eleven sections of the act fix the salaries and fees of the county officers. The 12th section provides that the sheriff and collector and other officers designated therein shall charge and collect the same fees and commissions as are now, or may hereafter be, allowed by law, and shall make a true report and settlement on the first day of the quarterly term of the Lonolce County Court, paying all fees, emoluments and commissions collected by them, or which they should have collected during the preceding quarter in excess of their respective salaries and fees allowed them, into the county treasury, after deducting the amounts of their respective salaries.

Section 13 of the act requires that the officers designated shall, at each and every settlement, pay over to the treasury the funds received by them in excess of their salaries, etc.

Section 14 provides that each of the officers designated shall keep a well bound book showing the amount of fees, emoluments and commissions earned and expended and received by them, etc.

Section 15 makes the failure on the part of the officers designated to comply with the requirements of the act a misdemeanor and prescribes the proceeding and punishment against those found to be delinquent.

Section 16 provides that the county judge shall furnish the salaried officers of the county with records, stamps, stationery and equipment necessary for the proper conduct of the offices; the expense to be paid out of the county general fund.

Section 17 is as follows: “That all money paid into the treasury arising from fees, emoluments and commissions, collected by the county officers under the provisions of this act, shall be paid into the county general fund. ’ ’

Section 18 fixes the compensation'for grand and petit jurors during the years 1919. and 1920.

This action was instituted in the chancery court of Lonoke County by the county board of education of Lonoke County and one Davis, a citizen and taxpayer, against the county judge, treasurer and collector. Plaintiffs set out the provisions of the act as above set forth and alleged in substance that the collector had collected during the years 1919 to 1923, inclusive, the sum of $37,723.72 in fees, emoluments and commissions, of which the sum of $15,722.76 was a school fund; that the pro rata share due by the school fund to the collector’s salary amounted to $8,320, leaving a balance due the school fund in the hands of the county treasurer the sum of $7,402; that the treasurer had collected in fees and commissions for the years 1919 to 1923, inclusive, the sum of $27,825.98 of which $16,219.90 were school funds ; that the pro rata share due by the school fund to the salary of the treasurer was $6,441.26, leaving a balance due in the hands of the treasurer after paying his salary the sum of $9,571.64 belonging to the school fund. Attached to the complaint were exhibits showing the amounts that it was alleged should be paid to the school fund after the payment of the treasurer’s and collector’s salaries in the sum of $16,974.40.

It was alleged in the complaint that section 17 of act 173, supra, is unconstitutional and void; that it was the duty of the board of education to apportion all school funds as provided by law in conformity with the regulations of the said board, and to place to the credit of the common school fund of the county all school funds in the county treasury, to be apportioned among the school districts of the county. It was alleged that the taxes of 1923 were sufficient to cover and pay the illegal exactions and overplus due the said school fund for the years 1919-1923, inclusive, as shown by the settlements made and exhibited with the complaint; that the bulk of the taxes for 1924 would he paid into the treasurer’s office to the credit of the general fund as heretofore, and all commissions earned by the collector and treasurer in excess of their salaries, including the school funds, would he passed to the credit of the county general fund.

The prayer of the complaint was that the county judge be permanently restrained from ordering the treasurer to transmit the school funds in his hands to the credit of the county general fund, and that, upon final hearing, the treasurer be directed to hold the school funds in his hands for apportionment by the county hoard of education among the school districts of the county, and that a master be appointed to state an account of the amount due the school fund by the county general fund for the years 1919-1923, inclusive.

The answer of the officers, by its admissions and denials, raises the issue as to the constitutionality of act 173 of the Acts of 1919. The answer states that, under the terms of the act requiring them to pay into the county general fund all fees, emoluments and commissions collected by them in excess of their salaries, they had complied with the act by paying such funds into the county general fund; that they had made settlements with the county court in accordance with the statements, which they filed and made exhibits to their answer, which exhibits had been approved by the county court, and that there was no liability on their part. It was alleged in the answer that the county judge, if act 173 is finally adjudged unconstitutional or partly so, will appropriate such sums as may be finally adjudged to be due the school fund, if any, for the purpose of restoring said funds to the school fund of Lonoke County. The county judge set up that the chancery court had no jurisdiction to enter any sum whatever as a judgment against the county. He further alleged that he had directed the county treasurer and collector to hold intact the fees and commissions collected by them on the school fund. The officers joined in the prayer that the court fix the basis for the distribution of the funds now enjoined in the hands of the county collector and county treasurer.

The trial court, upon the pleadings and exhibits thereto, found that act 173, supra, was constitutional and dissolved the temporary restraining order, and ordered that all fees collected by the collector and treasurer in excess of their respective salaries be paid into the county general fund as provided by that'act. The court thereupon entered a decree dismissing the complaint for want of equity, from which is this appeal.

The chancery court had jurisdiction to restrain the county officers from appropriating qr using the school funds in their hands for any other purpose than the support of schools. See Amendment No. 9, Constitution of 1874, Crawford & Moses’ Digest, p. 133; also article 16, § 11, Constitution. The complaint, in substance, alleged that there had been a diversion of school funds by the county judge, the -collector, and the treasurer for the years 1919 to 1923, inclusive, and that, unless these officers were enjoined, there would be a diversion also of the school funds in their hands for the year 19.24 by the payment of school funds in their hands in excess of their salaries into the county general fund where the same would be used for general county expenses, such as public improvements, etc, and not specifically for school purposes; that the officers named claimed that they were authorized to handle the school funds in the manner indicated by the provisions of act 173 of the Special Acts of 1919, which are set forth in the -complaint, and that so much -of said act as provides for the placing of all fees, emoluments, and commissions, received by these officers into the general county fund to be used -for general county purposes was unconstitutional and void.

The answer does not deny these allegations, but avers that the school funds in the hands of the collector and treasurer of the county for the years named in excess of their salaries had been passed to the credit of the county general fund under authority of the above act, and that the -county judge had treated the -funds -as county general funds and directed their expenditure for the years mentioned for general -county purposes under the authority of such act, and the pleadings show that the officers will treat the school funds for the year 1924 in the same manner.

Thus the issue raised by the pleadings is within the jurisdiction of the chancery court, and the question to be determined is whether or not § 17 of the act violates the Constitution.

In the recent case of State use of Lonoke County v. Swaim, 167 Ark. 225, we had under review this same act and particularly § 3 thereof, which fixes the salary of the circuit clerk. It was contended that § 17 was unconstitutional and void and rendered the whole act void. "We pretermitted a decision of the question in that case, saying, “Here the salary of the treasurer is not involved, but, if it were, and if the portion of the act relating to the salary uf the treasurer should be invalid, for the reason assigned in Gray v. Matheny (which we do not decide), the remainder of the act would be left complete without it.”

In Gray v. Matheny, 66 Ark. 36, the court had under consideration § 3 of the salary act fixing the salary of the treasurer of Independence County. Section 7 of that act provides as follows: “All money paid into the treasury arising from said fees and commissions in Independence County, Arkansas, shall be covered into the general revenue fund of the county.” Speaking of this section, in that case, we said: “He (the treasurer) receives fees or commissions on funds paid into the treasury derived from taxation. Section 11, art. 16, of the Constitution of Arkansas provides: * * * £and no moneys arising from a tax levied for one purpose shall be used for any other purpose.’ Section 4 of the special act under consideration requires the officers to pay over in kind the funds received by them in excess of their salaries. We are of the opinion that § 7 of the act is obnoxious to the above provision of the Constitution, in so far as it requires the excess over the treasurer’s salary of eight hundred dollars, to be covered into the general revenue fund of the county. The excess of funds in the hands of the treasurer over his salary belongs to the county, and goes to the respective funds for which the tax was levied and collected. This provision, however, as it relates to the treasurer, may be stricken out, and the act be left complete without it.”

Section 17 of act 173, supra, now under consideration, is similar in language to and in legal purport is precisely the same as, § 7 of the act construed in Gray v. Matheny, above. Counsel for appellees contend that the decision in Gray v. Matheny was wrong, and that it was ■unnecessary to hold in that case that § 7 of the act there under review was unconstitutional and void. Counsel are correct in saying that it was unnecessary to the decision of that case to hold that § 7 was unconstitutional and void. We might have passed over a decision on the constitutionality of that section, the same as we did in the recent case of State use of Lonoke County v. Swaim, supra. However, the language used by us in Gray v. Matheny, supra, was germane to the construction of the act, although not absolutely- necessary to the decision. We cannot concur with learned counsel in the view that the court’s construction of section 7 in Gray v. Matheny, supra, was wrong. On the contrary, we are convinced that the court’s construction of § 7 in that case was entirely correct. Section 7 in that case and § 17 in the case at bar are in palpable violation of § 11, article 16, and also § 3, article 14, of the Constitution, as amended by Amendment No. 9 thereto.

Section 17 is obnoxious to the above provisions of the Constitution because under it all the fees, emoluments and commissions earned in the collection and receipt of funds derived from taxation shall be paid into the county general fund, whereas the commissions earned in the collection and receipt of taxes which have been levied and collected for a particular purpose, when paid into the treasury under this law, should go to the credit of the particular fund, and be used for the particular purpose, for which the taxes were levied and collected. Before the present law was passed the -commissions allowed for the -collection and handling of school funds raised by taxation were paid out of such -funds. Indeed, they are a part of such funds. See §§ 4595 and 10071 of Crawford & Moses’ Digest. The fund raised by taxes not exceeding five mills on the dollar for all county purposes, or the “county general -fund,” is what its name imports — a fund raised to meet the expenses incident to county government- — a county general fund, and is altogether a different fund from the school fund of the county. See § 9863 C. & M. Digest; 15 C. J. p. 583, § 284. The Legislature is wholly without power to command that fees, emoluments, and commissions, allowed for the collection and handling of school funds by the county officers, be covered into the .county general fund. 24 R. C. L. p. 592, §§ 45-48. See also Hartford v. West Hartford School Dist., 102 Ark. 261; Cost v. Shenault, 113 Ark. 19; Dickinson v. Edmonson, 120 Ark. 80. Such fees, emoluments and commissions, when paid into the treasury should go to the credit of the school fund to be used for school purposes and no other. Section 17 is unconstitutional because it plainly authorizes a diversion of the school funds into the county general fund, where it could be used for other than school purposes.

In the case of Dickinson v. Edmonson, supra, we quoted at page 89, from the Supreme Court of Washington in School District No. 20 of Spokane County v. Bryan, 51 Wash. 498, as follows: “To take from the one and give to the other by indirect methods that which was designed for a special purpose would defeat the whole scheme of the law, and open a way for the ultimate transposition of funds held under a most sacred trust. Courts have been zealous in protecting the money set apart for the maintenance of the free schools of the country. They have turned a deaf ear to every entice-1 ment, and frowned upon every attempt, however subtle, to evade the Constitution.” The above language is exceedingly apposite here. “'Constitutional require- „ ments as to the preservation and inviolability of the public school funds must be observed by State legislatures, or their enactments will be invalid.” 35 Cyc. p. 826. Certainly the school funds should not be made to bear more than its just proportion of the salaries of the collector and treasurer. This fund, however, should be required to bear its just proportion of these salaries. To so require would not be a diversion of such fund because the school fund must be collected and paid into the treas-' ury and must be handled and disbursed after it is covered into the treasury. .So the act of the officers in collecting and handling the school fund is germane to the purpose for which it is raised.

Therefore, the county court, in determining the excess of commissions to he credited to the school fund, should apportion or prorate the amount to'he paid hy the school fund toward the salaries of the collector and treasurer in the proportion that the total amount of the school fund collected and disbursed hy these officers for one year bears to the total amount of all funds raised by taxation for that year; that is, hy taxes for county, State, municipal, school, road and all general taxes, for these come within the purview of article 2, § 23 and article 14, § 3, and article 16, § 11 of the Constitution, 1874. In making the apportionment the court cannot take into consideration commissions on funds collected or raised on special improvement district assessments, for these are not taxes within the meaning of the provisions of the Constitution. Cribbs v. Benedict, 64 Ark. 555, and cases there cited at p. 562.

It follows that § 17 of act 173, supra, is unconstitutional and void, in so far as it authorizes and directs commissions on school funds earned and paid into the treasury to be covered into the county general fund. This part of the act may be stricken out without impairing the remaind'er of the act, because that which remains is complete in itself and capable of being executed in accordance with the apparent legislative intent. Cooley on Constitutional Limitations, §§ 246-248; Nixon v. Allen, 150 Ark. 244, and cases there cited. The chancery court has no jurisdiction primarily to apportion and distribute, school funds in the county treasury. This jurisdiction is lodged by the Constitution and laws in other agencies and tribunals. See chapter 158, C. & M. Digest. The chancery court does have jurisdiction, however, as we have stated, to prevent a diversion of school funds to other purposes. '

The trial court erred in dismissing the appellants complaint for want of equity. It should have, instead, granted the prayer of appellants’ complaint and entered an .order directing the treasurer to pass to the credit of the school funds all fees, emoluments and commissions allowed by law and earned by the collector in the collection and by the treasurer in the receipt and handling of the school funds, after deducting the proportionate share of the salaries due such officers by the school funds under the rule of apportionment above indicated. The court should have entered an order restraining the treasurer from ’covering the funds derived from such source, and as . above ascertained, into the. county general fund. The decree is therefore reversed, and the cause remanded for such further proceedings as may be necessary according to law and not inconsistent with this opinion.

McCulloch, C. J., and Smith, J., dissenting.

McCulloch, C. J.,

(dissenting). I am unable to bring myself in accord with the views of the majority in holding that the requirement for the payment into the county treasury, for the benefit of the general revenue fund, of the statutory fees for collecting the school fund is unconstitutional as a diversion of funds, within the prohibition of § 11, art. 16, of the Constitution..

The general statutes of the State provide for the payment to the tax .collector 'and county treasurer of commissions out of the school funds, as well as other public funds, for the collection and handling of taxes. Crawford & Moses’ Digest, § § 4594, 10071. The validity of those sections has never been questioned, though it has always been the practice under those statutes for the school fund to share its proportion of- the expenses of collecting and handling, the funds. There is no reason why the school fund should not bear those expenses, the same as any other fund. Now, if' those statutes were valid at the time they were enacted, they are not affected by the statute fixing the' salaries of officers in Lonoke County. If the percentage of commissions prescribed by the statutes was reasonable at that time, it has not been rendered unreasonable, so far as it relates to Lonoke County, by the subsequent special statute providing for the officers of that county to receive definite salaries to be paid out of the statutory commissions turned in to the treasurer. The general statute constitutes a legislative determination that the commissions prescribed therein are reasonable and just contributions from the various funds towards the expenses of collecting and handling those funds. There are other expenses to which the county is subjected in the collection and handling of the taxes other than the commissions of the collector and treasurer. Hence the provision for putting the officers on salaries and turning the fees into the treasury should be upheld as a determination that the original commissions prescribed by the general statutes are reasonable, and that they should be exacted to cover the whole expenses incurred by the county in paying salaries and other' things in the collection and handling of the taxes. Absolute accuracy in adjusting the burdens of the expense of collecting and handling public funds is scarcely attainable, hence the determination of the lawmakers should not be disturbed in making’ those adjustments.

The constitutional restriction that “no moneys received from a tax levied for one purpose shall be used for any other purpose” (art. 16, § 11) was not intended to hamper the Legislature in prescribing the means whereby the public funds should be collected and handled. The general statutes prescribing the commissions in Lonoke County, which, under the special statutes in operation in Lonoke County, are paid into the general revenue funds, do not constitute a diversion of funds within the meaning of the constitutional provision just referred to, for, as we have already seen, this is merely a method providing for the payment of expenses of collecting and handling the funds. The fact that the amount of commissions thus separated from the funds may be in excess of the salaries of the officers does not put the provision in conflict with the constitutional inhibition against using funds for one purpose which arises from taxes levied for another purpose.

The majority rely upon the opinion of this court in Gray v. Matheny, 66 Ark. 36, hut I think that all that was said in the opinion on the subject is clearly dictum,, and is not binding upon us except to the extent of its persuasiveness. There were two of those cases on this subject decided on the same day, Independence County v. Young, 66 Ark. 30, and Gray v. Matheny, supra. The first case involved the validity of the statute fixing the salary of the county clerk of Independence County, and the other involved the validity of the same statute fixing the salary of the county treasurer of that county. In both cases it was contended that the statute fixed the salaries of those two officers so low that it practically abolished the offices, and that, for that- reason it was unconstitutional. This court refused to accept that view, and held that the act was valid. The statute contained a -provision similar to the one now before us to the effect that -the fees provided under general statutes should be collected and turned into the treasurer, and the salaries paid out of the funds thus raised; and in Gray v. Matheny it was decided that that portion of the statute which fixed the salary of the treasurer was separable from the other parts of the statute and was valid, even though another part was invalid. It was therefore unnecessary for the court to decide whether the part of the statute disposing of the surplus fees was valid or not. That case related to a controversy between the county and the treasurer concerning the amount of his fees, and the question of misappropriation of school funds was in no wise involved. I think -that the dictum, in Gray v. Matheny was erroneous, and I am unwilling to follow it, but, in the present case, I believe that the statute is valid. I am further of the opinion that, if the statute is invalid, to the extent indicated in the majority opinion, the apportionment of the expenses should, in accordance with the ’ contention of appellant, be made upon the basis of all commissions 'collected from all sources, including improvement taxes as well as all other fnnds. If the Legislature has the power to provide for the payment, out of any funds collected, including improvement district taxes, of the expenses of collecting and handling those funds, then all the funds collected should be taken into consideration in apportioning the expenses. I fail to see any reason why improvement taxes should he excluded from that consideration, if the Legislature has the power to provide for the payment of the collector’s fees out of those funds when collected. It is true that assessments in local improvement districts are not taxes within the meaning' of the 'Constitution, but that affords no reason why the commission on the collection thereof should not be considered in the apportionment of the expenses among the various funds collected. In other words, there is no distinction as to the character of funds, so far as concerns the basis of the. apportionment.

'Smith, J., concurs.


author: McCulloch, C. J.

text:
    Ewing v. McGehee.
    Opinion delivered October 5, 1925.
    1. STATUTES' — 'PRESUMPTION AS TO PASSAGE OP BELL. — An enrolled act in the office of the Secretary of State, signed in due form by the presiding officers of the two houses of the Legislature and by the Governor, is prima facie evidence of the regular enactment of the law, and is conclusive evidence thereof, unless the legislative journals affirmatively show-that the two houses failed to enact the statute in the constitutional manner or that the two houses did not agree upon the same measure.
    2. Statutes — omissions op recitals prom journals. — Mere omissions from legislative journals of recitals of the vanious steps in the enactment of a statute, except as to the requirement with reg'ard to recording the ayes and nays on the final passage of the bill, do not invalidate a statute duly enrolled and signed by the Governor.

      3. Statutes — recording vote. — The constitutional requirement of recording the -ayes and nays on the final passage of a bill has no application to concurrence in amendments.
    4. Statutes — variance between journal and enrolled bill. — It is immaterial that the Senate'journal shows that a House ibill was amended in the Senate by striking out sections 2 and 3 when the enrolled 'bill sign.ed by the Governor shows that sections 3 and 4 were stricken -out, where it appears from the recitals of the Senate journal -and the language of the enrolled bill that the Senate struck out sections 3 and 4, instead of 2 and 3.
    5. Statutes — variance between journal and enrolled bill. — ■ Where the Senate journal shows that a bill relating to a road improvement district was amended by adding a commissioner, but the enrolled bill fails to show that such commissioner was named, it will be -presumed that the recital -as to such commissioner was a clerical misprision.
    6. Highways — amendment of general statute. — It was within the Legislature’s power to amend a general highway statute by a local .and special act declaring a certain road “a part of the system of primary and secondary roads” of .the State and authorizing payment out of the funds of the district for work already done which could be utilized as a benefit to the district.
    Appeal from Deslía Chancery Court; E. G. Hammock, Chancellor;
    reversed.

      I. N. Moore and Coleman, Robinson, House $ Rid-dick, for appellant.

      Abner McGehee, for appellee.
   McCulloch, C. J.

The .'General Assembly of 1923 enacted a special statute (Special acts 1923, p. 1721) creating a road improvement district in Desha county designated as the “McG-ehee East and West Highway District. ’ ’ The statute contained thirty sections, including the last section embracing the emergency clause, and was in the usual form in vogue in the creation of road districts by special statute. Section 2 designated the title, of the district, which was. declared to be a body corporate, named the five commissioners, and provided that the county judge should be ex-officio a member of the board as chairman without a vote except in case of a tie. Section 10 of the statute related to, assessment of benefits and conferred authority upon the commissioners to mate such, re-assessments -annually in the manner prescribed for the making of original assessments.

A statute was enacted 'by the General Assembly of 1925 (act No. 182) amending the act of 1923, supra, creating the road improvement district in question, and the validity of that statute is attacked in -an action instituted in the chancery court of Desha County by appellee against appellants who- are named in the last statute ms commissioners. The -chancery court sustained the attack upon the validity of the 'statute and declared it void, and an appeal has been prosecuted to this court.

The first attack on the validity of the- statute is on the ground that the journals of the two h-ouse-s of the General Assembly do not show that the -same bill was agreed to in each house, and that -certain amendments to 'the- original bill adopted in the Senate- were not incorporated into the enrolled bill as signed by the Governor and filed with the Secretary -of State.

We have examined -the record of the- Legislature, which is preserved in the office of the Secretary of State for the purpose of' determining’ whether or -not the attack •on the validity of the -statute i-s well founded. The statute as enrolled ¡and signed contains four sections-, -numbered, respectively, 1, 2, 5 and 6. -Section 1 -amends section '2 ¡of -the -original statute, and section 2 amends section 10 of the original >sfatute; section 5 is new matter incorporated into the original statute by this amendment, and section 6 contains only the -emergency clause. It is contended that the 'bill for the statute as originally introduced -contained six sections, numbered consecutively from 1 to 6. There is no evidence of the- contents of the original bill a-s introduced except references on the -Senate journal to sections 3 and 4. The original bill was not preserved by the engrossing committee, 'and the bill on file with the -Secretary of State is precisely the same, wtord for word, as the enrolled bill signed by the Governor, though the wrapper bears indorsements of the clerk of the House and secretary of the Senate showing* amendments t-o the original bill and the progress of the bill through both houses. The only inference that can be drawn from the record that we find in the Secretary of State’s office is that, after the adoption of the amendments and concurrence therein by the other house, the engrossing committee took the wrapper off the original bill and placed it on the engrossed bill and then 'destroyed or failed to preserve the original bill. The bill wlas introduced in the House as Bill No. 60, and the journal of that body shows^ that it was duly passed. The Senate journal shows that on February 12 two amendments were adopted — one amending section 4 by istriking out certain words and inserting other words in lieu thereof, and the other striking out the name of one Sam Wolchanski as one of the icommissioners named in; section 1 and inserting the name of J. W. Willoughby. The Senate journal of February 13 shows that an amendment was offered and adopted striking out the names of Wolchanski and A. Z. Zelhner from section 1 and incorporating another sentence in 'that section, and that the bill was passed as amended and transmitted to the House. The journal of the House fails to show the return of the 'bill, but the indorsements of the clerk of the House on the bill shows that it was returned to the House and the Senate amendments adopted.

The only constitutional requirement with reference to the record of the passage of a bill on1 the journals of the two house's of the Legislature is that' the ayes and nhys shall be called on the final passage of a bill and entered on the journal. Constitution, art. 5, § 22.

It has long been the rule in this State that an enrolled statute in the office of the Secretary of State, signed in due form by the' presiding officers of the two houses of the Legislature and by the Governor is prima facie evidence of the regular enactment of the law, and is conclusive evidence thereof except with respect to the things which the Constitution requires shall be affirmatively shown on the record, unless the legislative journals affirmatively show that the two houses failed to enact the statute in the Constitutional m'anner or that the two houses did not agree upon the same measure. Chicot County v. Davies, 40 Ark. 200; Mechanics B. & L. Assn. v. Coffman, 110 Ark. 269; Desha-Drew Rd. Imp. Dist. v. Taylor, 130 Ark. 503; Marshall v. Baugh, 133 Ark. 64; Perry v. State, 139 Ark. 227. In other words, there is a conclusive presumption of the regularity of the enactment of an enrolled and signed statute unless the validity is defeated by affirmative recitals ini the journal. Mere omissions from the journal of recitals of the various stepis in the enactment of a statute, except as to the requirement with regard to recording the ayes and-nays on the final passage of the bill, do not discredit or invalidate a statute duly enrolled and signed by the Governor. Applying this rule in the present instance, we do not ¡thank that the validity of the enrolled statute can be successfully challenged on the ground that it is in conflict With the affirmative recitals of the journal. This is true when we indulge the presumption which we should indulge in order to give full faith and credit to the record on file in the office of the Secretary of'State. It is true that the journals of the House do not contain a recital of the concurrence by the House in the Senate amendments, but there is no affirmative recital showing that the amendments were not concurred in ¡or that the bill wais enrolled without further action of the House, and, on the contrary, the indorsement of the clerk- on the bill shows that the amendments adopted by the ¡Senate were concurred in 'by the House, hence we must presume that there was a concurrence by the House in the 'Senate amendments.

The Constitutional requirement with respect to recording the ayes and nays on the final passage of a bill has no application to the concurrence in amendments. State v. Corbett, 61 Ark. 226.

It is earnestly contended by counsel for appellee that the journals of the Senate affirmatively contradict the enrolled bill and 'show that it is not in accordance with the amended bill passed in the Senate, for the reason that the Senate journal shows that ¡sections 2 and 3 of the original bill were stricken out, whereas the enrolled bill contains •section 2. A careful analysis, however, of these recitals on the journal earries the conviction that it was' a mere clerical misprision of the clerk, and that the purport of the Senate amendments was to strike' out sections 3- and 4 and to amend section 5 instead of striking out sections 2 and 3 and amending section 4. The journal recites the amendments of section 4 in certain particulars, and the language contained in those amendments was carried into section 5. We do no violence to settled rules for the ascertainment of the validity of legislative action and the record thereof by considering these matters in determining whether or not in fact the 'Senate passed a bill different from the one now enrolled and signed and filed in the Secretary of State’s office. These matters are considered, not for the purpose of defeating the legislative will, but for the purpose of identifying the amendments which were in fact proposed -and adopted. Butler v. Kavanaugh, 103 Ark. 109.

The application of the same rule must be made as to the contention with respect to the Senate amendment striking out the name of Wolchanski as one of the commissioners and inserting the name of Willoughby. Neither the engrossed bill nor the enrolled statute contains the name of Wolchanski or Willoughby, and, as the indorsements on the engrossed bill show that the 'bill as amended is in identical form and language as the enrolled bill, we must indulge the presumption that the recital with respect to the insertion of the name of Willoughby was a clerical error.

It is als'o contended that the statute, is void 'because the -caption does not refer to all the matter contained in ■the body .of the act. There is no provision in the Constitution of this State with respect to what the caption of statutes shall contain. Our Constitution does not contain a -provision so often found in State constitutions to the effect that statutes shall embrace only one subject, which shall be clearly stated in the caption. Conceding that a statute is void which undertakes to legislate with reference to unrelated subjects, we do not find that the present statute is open to that objection. The whole subject of the statute is 'in regard to> the particular road district mentioned, and it expressly amends certain sections of the former statute and incorporates new provisions in other sections. The whole subject-matter of the new statute is to amend the old statute, and all of the matters contained in the 'statute are germane. There is no vagueness or uncertainty in the statute, and, as it appears enrolled in the office of the Secretary of State, it seems to clearly express the legislative will.

. . The validity of section 5 of the statute is attacked on the (ground that it declares the road to be improved a State highway, as “a part of the system of primary 'and secondary roiads,” and authorizes the payment by the commissioners for work already done on the improvement. We perceive no reason why either of those provisions are invalid. The argument is that it is an indirect amendment of the general State highway 'statute known as the Harrelson Law, but, even so, it was within the power of the Legislature to thus amend the general statute, even though done through the operation of local and special legislation. And it was within the power of the Legislature to authorize payment out of the funds of the district for work already done Which could be utilized as a benefit to the district. Road Improvement District v. Brown, 156 Ark. 267; Hiter v. Haralson Bridge Dist., 165 Ark. 351.

This answers all of the attacks made by appellee as to the validity of the statute, and our conclusion is that the chancery court erred in 'sustaining the attacks.

The decree is reversed, and the cause remanded with directions to dismiss the complaint of appellee.


author: Wood, J.

text:
    Prins v. American Trust Company.
    Opinion delivered October 5, 1925.
    1. Fraudulent conveyances — bulk sales law- — -merchant defined. — A company organized primarily for the purpose of farming, but Which incidentally engages in selling merchandise to the ¡tenants on its plantations, is -a merchant within the application of the Bulk Sales Law.
    2. Fraudulent conveyances — bulk sales law construed. — The Bulk Sales Law, in requiring notice -to be given to creditors of a proposed sale in bulk, is not limited to those creditors who have extended credit ¡on the mercantile business, ¡but is for the protection of all ¡creditors of the seller.
    3. Fraudulent conveyances — bulk sales law — intent to defraud. — A sale made in violation of the Bulk Sales Law is void, regardless of the intent of the parties conducting the sale.
    4. Fraudulent conveyances — sale of mortgaged property. — An unsecured creditor ¡may not complain of the sale of mortgaged property, the proceeds of which were applied to the mortgaged debt. ¡, ■
    5. Fraudulent conveyances — bulk sales law — liability of purchaser. — Where a sale is declared void for non-compliance with the Bulk Sales Law, the purchaser thereat ¡becomes liable as a receiver to all the creditors of the seller pro rata merely, and not for the full amount of any creditor’s claim.
    Appeal from Chicot Chancery Court; E. G. Hammock, Chancellor;
    reversed.

      Church & Gannaway and Coleman, Robinson & House, for appellant.

      Cooley, Adams & Fuhr, for appellee.
   Wood, J.

The Holland-Delta Company, hereafter called Delta Company, is a New Jersey corporation authorized to do business in Arkansas. It owns what is known as the Red Leaf and Etminence Plantations, containing 7,563 acres in Chicot County, Arkansas, on which it conducted farming operations in the years 1922 and 1923. The Netherlands American Mortgage Bank, hereafter called Netherlands Bank, is a corporation of the Netherlands authorized to do business in the States of Arkansas and Minnesota. The American Bank & Trust Company, hereafter called Trust Company, is a banking corporation of Arkansas. On July 9, 1921, the Trust Company had obtained, a judgment against the Delta Company in the sum of $20*081.48, which judgment was enrolled on the judgment docket in the office of -the clerk of the circuit court of Chicot County on July 9, 1921. On the. 8th of June, 1923, an execution was- issued on this judgment and levied on the stock of goods in. the store of the Delta Company on its Bed Leaf Plantation and also on lumber that had been manufactured from timber cut from the lands, of the Delta Company on the Bed Leaf Plantation.

The Delta Company was indebted to the Netherlands Bank in the sum of $300,000, evidenced by a note for the principal sum dated September 1, 1920, with interest coupon notes .attached, due' annually thereafter on the first of February beginning with. February 1, 1921, until the due date of the principal note in the year 1927. The interest due February 1, 1921, was $8,125, and the sum of $19,500 was due each year thereafter until 1927. These notes were secured by a deed of trust on the Bed Leaf and Eminence Plantations. The Delta Company was also indebted on the 27th of February, 1922, to what is designated in the record as the Hollam Company in the sum of $75,000, to secure which the Hollam Company had a mortgage on all the mules and horses and all agricultural implements on the above plantations, but not including the stock of merchandise in- the store on the Bed -Leaf Plantation. After the levy of execution on June 8,1923, of the Trust Company -above mentioned, one A. J. Prins instituted an action in the circuit court claiming to- own the lumber upon which the execution had been levied; and he also instituted as action in the chancery court, in which he set up that he was the owner of the stock of-goods on which the execution of June 8, 1923, had been levied. Prins sought by these actions to -prevent the sale of the property, which had been levied uuon as the property of the Delta Company,-and to have the same declared'-his property.

The case at law was transferred, to the chancery court, and the causes were there consolidated, for trial. The Trust Company, the execution creditor, set up that the Delta Company was insolvent, of which fact Prins had knowledge at the time of his' alleged purchase of the stock of goods from the Delta Company; that this pretended ©ale was fraudulent and made for the purpose of hindering and delaying the Trust Company in the collection of its debt; that Prins was but the mere dummy and agent of the Delta Company and acted for it in the pretended sale and transfer of the stock of goods, and, in fact, there had been no transfer of the control and possession of ©aid store and stock of goods, but that the same remained in the possession of the Delta Company. The Trust Company further set up that the alleged purchase and transfer of the stock of goods was void because it was in violation of the Bullí Sales Law of the State of Arkansas.

■ The trial court found that “the said conveyances purported to be made to siaid A. J. Prins of the store and lumber were made at a time when said Holland Delta Company was insolvent and with the intent and purpose to hinder, delay, defraud and cheat the American Trust Company and other creditors, and that said stock of merehandisé and lumber were at the time of the levy of said execution the property of the Holland Delta Company, and not the property of the plaintiff, A. <L Prins; that the value of ©aid stock of merchandise is the sum of $3,750, and the value of said 70,000 feet of cypress lumber is the sum of $2100, and that the American Trust Company is' entitled to recover- from A. J. Prins, Holland Delta Company and Fidelity & Deposit Company of Maryland thé sum' of $5850,” which, with interest amounted to the total sum of :$6,269.37, for which sum the' court rendered a decree in favor of - the Trust Company against Prins, his bondsman, 'the Fidelity & Deposit Company of-Máryland. and'the Delta Company. From that decree is this appeal.:

The first question is, was Prins the owner of the stock ¡of goods in controversy! The Delta Company, in the fall of 1921, was unable to pay either the principal or interest on its accruing indebtedness; it could not pay its taxes for that year 'and was unable to finance its farming operations for the next year. The proof tended to show that on February 27, 1922, the Delta Company was hopelessly insolvent. The Netherlands Bank, its largest creditor, was threatening to foreclose its mortgage'. To prevent this, the Delta Company and the Bank entered into an agreement by which the Delta Company was to lease its plantations in Chicot County for the year beginning March 1, 1922, and ending February 28, 1923, and also for the year 1923, to one A. J. Prins. The Bank agreed to furnish, and did furnish, Prins approximately $100,000 for the necessary operation of the plantations. Under agreement Prins was to apply the gross proceeds of the plantations, first to the repayment of the sums advanced by the Bank for operating expenses; second, to the five per cent, of the net proceeds to be retained by Prins; third, to the sums advanced by the Bank and the Holland Company for the payment of the taxes on the real and personal property for the year 1921; fourth, to pay the accrued interest on the mortgage loan of the Bank, and also the'interest to become due February, 1923; fifth, to pay the taxes for the year 1922; and, six, to pay the interest that would accrue on the Hollam debt due December 1, 1922.

At the time of the execution of the leasé, February 27, 1922, the Delta Company had in its store on the Bed Leaf Plantation a stock of merchandise which inventoried at that time $2,388. The entire stock at that time was delivered to Prins’ representatives, and in December following Prins paid the Delta Company for the stock, through check of the bank in its favor, which check was used by the Delta Company in payment of its taxes. At the time the stock of merchandise was turned over to Prins, the merchandise creditors of the Delta Company were notified of that fact by circular letter. The arrangement was satisfactory to them. After' the stock of merchandise was transferred to Prins, the goods thereafter purchased were purchased for Prins. The checks were made therefor on the Netherlands Bank, and the receipts were taken in Prins’ name and sent to him. Prins was the manager of the St. Paul office of the Netherlands Bank. Yandertuuk was the manager of the Netherlands Bank, and Markle was the president of the Delta Company. These were the parties through whom the negotiations resulting in the leases and the taking ‘ over of the plantations and property of the Delta Company were effected. According to their testimony the whole arrangement was for the purpose of tiding over the then distressed financial situation cf the Delta Company and to enable it to recoup its fortunes, if possible, by two years more of production on its splendid plantations in Louisiana and Arkansas. The arrangement, they claimed, and their testimony tended strongly to prove, was not only for the benefit of the creditors of the Delta Company, who held mortgages against it, but also for the benefit of all other creditors.

The appellants contend that the conduct of the officers of the bank and of the Delta Company, through whom the negotiations were effected, were open and above board and show conclusively that there was, no actual intent upon the part, cf the Delta Company to transfer the stock cf merchandise to defraud the Trust Company or any other creditor. We are convinced that the appellants are correct in this contention.

To be sure, the Delta Company had a perfect right, if it elected so to do, to deliver possession of the plantations to the bank as its mortgagee to prevent foreclosure. By complying with the Bulk Sales Law, it had the right to sell its stock of merchandise to Prins or the bank upon a-fair consideration and the right to use the proceeds cf such sale, as it did, in the payment of its taxes. None of these 'acts Would have been fraudulent either in fact or in law and would not have subjected the stock of merchandise to the execution cf the Trust Company. But such is not this case, and such issue is not germane to the pleadings in the cause.

The bank is neither claiming the stock of merchandise in its own right or through Prins as its agent, tout, on the contrary, Prins is claiming the property in his own right by virtue of the purchase thereof from the Delta Company. Now, the stock of merchandise at the time of its •alleged sale and transfer to Prins was not under mortgage. It could be reached by execution issued at .the instance of the judgment creditors of the Delta Company. Therefore, in order to give Prins title to the stock of merchandise, unhampered toy the claim of the creditors of the Delta Company, it was necessary that the sale to him toe made in compliance with our Bulk Sales Law, provided that statute is applicable to the facts of this record. This is the toed which Prins has made for himself, and upon which he must lie.

Learned counsel for appellants, however, contend that the Bulk Sales Law has no application to the facts of this record for the reason, as they assert, that the business of the Delta Company, primarily was that of farming and not that of selling merchandise, and that the sale of the merchandise to Prins was only incident to the lease of its plantations and the conduct of its farming operations. . We cannot concur' in tills view. • The line of demarcation between the business of merchant and planter is so clear that, whether conducted toy the same or different persons, they are entirely separate and dis: tinet avocations. It miay be necessary for the planter, in order to carry on successfully his farming operations, to have a store on, or convenient to, his plantation to sell merchandise to his tenants; but nevertheless the sale of such merchandise, whether by the planter himself or another, is the distinct business of a merchant and not that of a planter. It occurs to us that the Delta Company, while it was selling its merchandise to the tenants on its plantations as well as when it was selling its stock of goods to Prins, was engaged in the course of trade of a merchant and not of a planter.

The appellents further contend that the provisions of the Bulk'Sales-Law, with regard to the list of creditors and notice to be given them, have reference only to those creditors who have extended credit, on account of the mercantile business. But the statute contains no such limitations. On the contrary, it declares in effect that any sale in 'bulk, otherwise than in the ordinary course of trade, shall be void as against the creditors of the seller unless the purchaser demands and receives from the seller a written list of the names and addresses of the creditors of the seller, and unless the purchaser shall at least ten days before taking possession of the merchandise notify personally or by registered mail every creditor whose name and address is stated in said list, or of whom he has any knowledge, of the proposed sale, etc. Sec. 4870, C. & M. Digest. The appellee Trust Company had the right to avail itself of this statute.

The question in the last analysis, therefore, is whether or not the Bulk Sales Law was complied with. The undisputed testimony shows that it was not in at least two particulars — a written list of the names and addresses of the creditors of the Delta Company and the amounts owing' to each of them was not demanded by Prins, nor was it furnished him; nor was the Trust Company notified personally or by registered mail of the proposed sale, the price, terms, and conditions thereof, as the statute requires. Although those conducting the negotiations did not intend actually to defraud the creditors in the sale and transfer of the stock of merchandise, nevertheless it was a sale and purchase in violation of the Bulk Sales Law. It was void under the express declaration of the statute, and fraud is conclusively presumed. See § 4870, supra; Stewart v. Elkhorn Bank & Trust Co., 123 Ark. 285-290. The trial court therefore ruled correctly in declaring the sale of the stock of merchandise void.

So far as the sale of the stump age and the lumber produced therefrom is concerned, but little need be said. This stumpage and the entire product therefrom when manufactured into lumber belonged to the Netherlands Bank under its mortgage. It was not subject to the execution of the Trust Company. The Netherlands Bank gave its consent to the sale of the stumpage and the lumber manufactured therefrom, and the testimony does not warrant the conclusion that the sale of this lumber was made with the intention to defraud creditors. It was sold for a fair price, and when no valid lien had been fixed upon .it by the Trust Company, and the proceeds were applied to the payment of the interest of the Delta Company’s indebtedness to the Netherlands Bank. The Netherlands Bank is the only one that had any lien on this lumber at the time it was sold. It is not complaining, and the Trust Company has no right to complain. Under the pleadings and proof in this record the appellee can not subject the equities of the Delta Company, in the lumber, to the- payment of its judgment.

Although the court ruled correctly, as we have seen, in declaring the sale of the stock of merchandise void, because in violation of the Bulk Sales Law, nevertheless, the court erred in rendering a decree in favor of the appellee Trust Company for the entire value of the stock of merchandise as ascertained at the time the sheriff levied the execution thereon. The undisputed testimony shows that the value of the stock of merchandise at the time the sale was made to Prins was $2,388. Where a sale is declared void for non-compliance with the Bulk 'Sales Law, the purchaser at such void sale becomes liable as a receiver to all creditors of the seller pro rata merely, and not for the full amount of the claim. Steward v. Elkhorn B. & T. Co., supra; Ledwidge v. Arkansas National Bank, 135 Ark. 421; Griffin v. Shoe Co., 137 Ark. 37. See also Davis v. Kramer, 133 Ark. 239. The fact that other creditors have not presented any claims against Prins in this action does not have the effect of transferring their pro rata interest to the appellee Trust Company. The residue, after deducting the Trust Company’s pro rata share of the purchase price of the stock of ¡merchandise, belongs to the otter creditors of the Delta Company, and not to the appellee Trnst Company.

It follows as a resnlt of' ;our views that the decree of the trial conrt is erroneous, and such decree is therefore reversed, and the canse will he remanded with directions for such other and further proceedings according to law as may he necessary to conserve the rights of the parties and not inconsistent with this opinion.