author: Humphreys, J.

text:
    Summers v. Brown.
    Opinion delivered March 12, 1923..
    1. Taxation — unlawful reduction of assessment- — forfeiture.— Where the 1913 assessment of lands, which was to 'be extended in 1914, was unlawfully reduced by the quorum court at the suggestion of the county board of equalization, forfeiture of the land for nonpayment of taxes in 1914 based on the assessment so reduced, was not void because the reduction of the assessment was illegal, and. the tax deeds based on a sale for such forfeiture were valid, as the reduction of the assessment favored the owner, instead of injuring him.
    2. Taxation — equalization board — powers.—The county 'board of equalization had no power to equalize assessments in 1914, and a blanket reduction of assessments in 1914 by the quorum court at the instance of the county board of equalization was illegal.
    Appeal from St. Francis Chancery Court, A. L. Hutchins, Chancellor;
    reversed.

      S. S. Hargroves and John M. Prewett, for appellant.
    Tax sale not invalid because tax charged in wrong-name. C. & M. Digest, § 10118; 134 Ark. 463. No excess fees charged. 61 Ark. 418. Action to test validity barred 'by 2 years statute. C. & M. Digest, § 10119; 46 Ark. 96; 55 Árk. 192.

      Mann & Mann, for appellee.
    Equalization board required to complete work before convening of county court. 96 Ark. 92. Tax sale void account gross reduction in value. Equalization board without authority to assess property. 64 Ark. 436; 84 Ark. 347. Record must be kept, ill Ark. 97. Sec. 10119, C. & M. Digest, not applicable in this case. Appellee being in possession, matters complained of for avoiding deed, statute would not bar. 46 Ark. 96; 53 Ark. 204 ; 55 Ark. 192; 120 Ark. 528.
   Humphreys, J.

The issue presented and determined by the trial court in this case involved the validity of two tax deeds executed by T. C. Merwin, county clerk of St. Francis County, on June 20, 1917, to appellant, pursuant to the certificates of purchase issued on the 14th day of June, 1915, under a sale of the land described in the deeds for the taxes of 1914. The lands are in sec. 32, township 6 N., range 2 E., one deed containing the S. W. ¼ N. E. ¼, assessed in 1913 at $160, and the other including the W. ½ of the N. W. ¼ N. E. ¼, assessed in the same year at $50. There was no assessment in 1914, the assessment of 1913 covering each year and holding good in 1914. In 1914 the clerk extended taxes against said S. W. ¼ N. E. ¼ upon an assessment or valuation of $80 instead of $160, and against the W. ½. of the N. W. ¼ N. E. ¼ upon an assessment or valuation of $25 instead of $50. This was done because the equalization board of the county appeared before the quorum court and asked said court to indorse the following resolution:

“Came N. B. Nelson, Lon Slaughter and W. R. Kendrick, the board of equalization, and presented a resolution asking approval and indorsement of their action in reducing the assessment of all the real and personal property of St. Francis County as returned by the assessment for 1914 on each list and tract of land 50 per cent, of its present valuation.” According to the records of the proceedings of the quorum court, the above resolution was adopted, and five mills was levied on one-half of the assessed valuation of the real and personal property of the county.

The trial court canceled the tax deeds in question, upon the theory that the forfeiture for the nonpayment of taxes for the year 1914 was void, because the taxes were levied and extended against the lands for only 50 per cent, of their assessed value, instead of their assessed value. The trial court, in doing this, agreed with the contention of appellees to the effect that the levy and extension of the taxes on said lands were void because based upon an attempted blanket reduction of the assessed valuation of the lands in the county by the quorum court at the instance of the equalization board. It is true that the equalization hoard had no right at that time, under the statute, to make a.blanket reduction of the assessments of lands in the county. Saline County v. Hughes, 84 Ark. 347. In fact, the equalization board had no right to equalize assessments of real estate at all in 1914. They only had the right to equalize assessments in 1913, and the assessment made by an assessor and equalized by them in 1913 held good for the year 1914. It may also be observed that the quorum court had no authority whatever to assess or approve an assessment of value for the purposes of taxation. The fact, however, that the taxes were extended by the clerk against the lands upon a 50 per cent, assessed valuation directed by the combined action of the equalization board and quorum court did not have the effect of rendering the forfeiture of that year void. The right to extend taxes-levied upon a larger valuation necessarily included the right to extend the taxes upon a less or smaller valuation. The extension of a smaller amount than should have been extended was an irregularity merely, and favored rather than injured appellees. According to the regular assessment against the lands for 1914, a larger sum total might have been levied thereon for general, State, and county purposes than was levied, and a greater amount for such purposes might have been extended against the property by the clerk than was extended. No substantial right of the appellees was invaded by either the levy or extension of the taxes. As we understand, no complaint is made that improper amounts were levied or extended against the lands for school purposes. The valuations fixed by the assessor in 1913 were used as a basis for levying and extending the school taxes.

■ The forfeiture of the lands for the nonpayment of taxes for 1914 was not void because the taxes were levied and extended against them on the 1913 and 1914 assessment, improperly and irregularly reduced by the equalization hoard, and it was error to cancel the two tax deeds based upon the forfeiture.

The decree is therefore reversed, and the cause is remanded with directions to enter a decree sustaining the tax titles and upholding the deeds evidencing same.


source: Caselaw Access Project

license: Public Domain

text:
    Martin v. Stratton.
    Opinion delivered March 12, 1923.
    1, Landlord and tenant — recovery of land — sufficiency of' complaint. — Under Crawford & Moses’ Dig., § 4838, providing that a failure to pay rent when due after three days’ written notice to quit, shall constitute an unlawful detainer, justifying an action for possession of the premises, a complaint alleging a failure of the tenant to pay rent as agreed was not demurrable.
    2. Pleading — misjoinder of causes. — A complaint to recover possession of leased premises and for damages for wounding plaintiff was not demurrable because joining an action for unlawful detainer with one sounding in tort, since the error could . have been met by a motion to strike the action improperly joined or to require appellant to elect between the two causes of action.
    Appeal from White Circuit Court; J. M. Jackson, Judge;
    reversed.

      J. N. Rachels, for appellant.
    Three causes of action stated. Requisites of complaint, §§ 1187 third division, and § 1188, Crawford & Moses’ Digest. 130 Ark. 499. Objections should have been raised by motion to make more definite instead of demurrer. 49 Ark. 277; 52 Ark. 378; 94 Ark. 370.
    No appearance for appellee.
   Humphreys, J.

Growing out of an alleged breach of contract between appellant, as landlord, and appellee, J. D. Stratton, as tenant, and an alleged unlawful attack upon 'appellant by appellee, appellant brought suit against appellee, in the White County Circuit Court, to recover possession of the land rented to him, damages for breach thereof, and rents, and for damages to his person inflicted by a gunshot fired by .appellee. It was alleged, in substance, in the complaint: first, that appellant rented 160 acres of land in said county to said appellee, under written contract, for three years, beginning January 1, 1919, and ending December 31, 1922; that the contract provided for J. A. Stratton to set out and cultivate eight acres in strawberries and ten acres in cotton; that he should pay appellant one-half the net proceeds of the berry crop in 1920 and 1921, in part payment of rent, and, in further payment thereof, to deliver appellant one-half of the lint cotton and seed, after paying for ginning same; that appellee failed to plant any cotton, to appellant’s damage in the sum of $200, and failed to divide the net proceeds of the berry crop in 1920, to his damage in the sum of $250; second, that appellee came upon appellant’s premises and unlawfully, maliciously, and feloniously shot him, to his injury in the sum of $10,000.

It was further alleged that said appellee’s codefendant was brought upon the rented land to unlawfully assist him in holding the possession thereof, and was a trespasser. . .

Appellees filed a demurrer to the .complaint upon the ground that it did not state facts sufficient to constitute a cause of action against them.

The court sustained the demurrer, and dismissed appellant’s complaint, over his objection and exception, from which is this appeal.

The only question presented by the appeal for determination is whether the complaint states a cause of action. It is provided by statute in this State that a failure to pay rent when due, after three days ’ written notice to quit, shall constitute an unlawful detainer, justifying an action by the landowner against the tenant for the possession of the premises. Sec. 4838, Crawford & Moses ’ Digest. This is true, regardless of whether the rental contract or lease makes a failure to pay rent a ground of forfeiture. Parker v. Geary, 57 Ark. 301. The facts alleged in the complaint meet all the statutory requirements of an action for unlawful detainer. The court erred therefore in sustaining the demurrer.

.An attempt was made to join an action sounding in tort with an action for unlawful detainer, but this was not ground for demurrer. This error should have been met by a motion to strike the action improperly joined, or to require appellant to elect as between the actions pleaded. Jett v. Theo Maxfield Co., 80 Ark. 167.

For the error indicated the judgment is reversed, and the cause is remanded, with directions to overrule the demurrer to the complaint.


text:
    National Union Fire Insurance Company v. Whitted.
    Opinion delivered March 12, 1923.
    1. Insurance — proof of loss — waiver.—Evidence that immediately after a fire plaintiff notified the insurer’s local agent and its home office, and listed the household goods destroyed, showing the value of each item, and, at the request of the insurance adjuster, furnished an itemized statement of the cost of rebuilding the house, held sufficient to go to the jury on the question of waiver of proof of loss, the adjuster having made no objection to the form or manner in which proof of loss was presented.
    2. Witnesses — discretion to prevent repetition. — When a witness was asked and answered a question, it was not error to exclude a second question substantially the same; it being within the court’s discretion to prevent unnecessary repetition in taking testimony. ' *

    Appeal from Lee Circuit Court; J. M. Jackson, Judge;
    affirmed.

      George E. Neuhardt and Prewitt Semmes, for appellant.
    Court erred in refusing to permit insured to be examined as to cost and date of purchase of items of personal property. Rosenstein v. Railroad, 78 Conn. 29; 60 Ark. 1061; Hanley v. Chicago, Milwaukee & St. Paul Ry. Co., 154 Iowa 60,134 N. W. 417.- Evidence insufficient to go to jury on question of waiver. Burlington Ins. Co. v. Kennerly, 60 Ark. 532, 31 S. W. 155; Phoenix Ins. Co. v. Flemming, 65 Ark 54, 44 S. W. 464. Commercial Fire Ins. Co. v. Waldron, 88 Ark. 120,120 S. W. 210.

      Bogle & Sharp, for appellee.
    . Proof of loss waived. Queen of Ark. Ins. Co. v. Malone, 111 Ark. 229; German Ins. Co. v. Gibson, 53 Ark. 494; 94 Ark. 234; 72 Aik. 365; 94 Ark. 227; 108 Ark. 268; 111 Ark. 232. Queen of Ark. Ins. Co. v. For-lines, 94 Ark. 232. American Ins. Co. v. Dannehower, 89 Ark. 115. Verdict properly directed. 117 Ark. 81.
   Humphreys, J.

This is a suit to recover $3,000 on a fire insurance policy issued August 27, 1920, by appellant company to appellee, indemnifying him for a period of three years against loss by fire to his dwelling in the sum of $2,000 and to his household and kitchen furniture in the sum of $1,000.

Appellant filed an answer, denying liability.

The cause proceeded to a hearing upon the pleadings ánd testimony, at the conclusion of which each party asked a directed verdict. The court thereupon directed the jury to return a verdict in favor of appellee for $3,000 with interest at 6 per cent, from September 25, 1921, and a penalty of 12 per cent., which was done. The judgment was rendered in accordance with the verdict, from which an appeal has been duly prosecuted to this court.

Appellant contends for a reversal of the judgment upon two grounds. First, the insufficiency of the evidence to go to the jury upon the.waiver of the proof of loss. Second, refusal of the court to permit questions as to the cost and date of the purchase of the several items of the personal property.

On December 25, 1921, the house and furniture were completely destroyed by fire. Appellee failed to furnish proof of the loss within sixty days after the fire, in the manner provided by the policy. The failure to do so was interposed by the appellant company as a defense to the suit. Appellee admitted that he did not file proof of loss, but claimed that the adjuster for the company waived the requirement. The record reflects that, immediately after the fire, appellee notified'the local agent of appellant and W. B. Frith, cashier of the Bank of Wheatley,'of his loss, who in turn notified the company; that, at the suggestion of Mr. Frith, appellee made an itemized list of the personal property destroyed, in a small book, noting the value of each item, the total amounting to $2,257.88; that, in response to the notice and within three weeks after the fire, R. E. L. Turner, the adjuster of the company, viewed the place, in the absence of appellee, where the property was destroyed, and left a letter requesting him to come to Memphis to discuss the question of settlement; that during the meeting in Memphis the adjuster asked him if he had an itemized list of the property, to which he replied, that he did, and showed him the book containing the list theretofore prepared; that the adjuster said the company could not be expected to pay the price of new goods for old, to which appellee responded that he-did not expect it to do so, for the loss was three times as much as the property was insured for; that the adjuster then instructed appellee to furnish him with an itemized statement of what it would cost to rebuild the house, which was done, but made no further request concerning the list of personal property shown him. We think the conversation and conduct of the adjuster led appellee to believe that no further formality would be required concerning the proof of loss. A complete list of the personal property destroyed was shown the adjuster, and no objection was made as to' form and manner in which it was presented. Appellee was not asked to verify it by oath. In fact, he was led to believe it was satisfactory by the adjuster’s suggestion to make up an itemized statement of the cost necessary to rebuild the house. In reference to the personal property, appellee had done what he intended and thought was a satisfactory compliance with the requirements of his policy in respect to the proof of loss, and the adjuster should have notified him of any objection thereto. Silence on his part, under- the circumstances, was calculated to mislead appellee to his disadvantage, and constituted a waiver of additional proof of loss. Gould v. Dwellinghouse Ins. Co., 134 Pa. St. 570; Hartford Fire Ins. Co. v. Enoch, 79 Ark. 475; Business Men’s Accident Assn. v. Cowden, 131 Ark. 419.

In answer to an interrogatory of counsel for appellant, on cross-examination, appellee made the following answer: “I could not tell the cost price of the articles on the list, hut the values set down on the list are about the market values. I placed the value on the list. I cannot tell how old the majority of the property was, some of it was twenty-odd years old.” After this information had been elicited, the same question, in substance, was repeated, and, over the objection of appellant, it was excluded by the court. In the exercise of a sound discretion, the court may prevent unnecessary repetitions in taking testimony, and we are unable to say that the court’s discretion was abused in sustaining the objection to the second question touching the same subject-matter.

No error appearing, the judgment is affirmed.


author: McCulloch, C. J.

text:
    Briggs v. Frazer.
    Opinion delivered March 19, 1923.
    Frauds, statute of — sale op land — letters.'—Letters passing between purchaser and vendor, relating to a land sale, which merely tended in a remote degree to show that there had been some understanding about a sale, but containing no description of the property nor any of the terms of the contract, were insufficient to take the transaction out of the statute of frauds.
    Appeal from Pulaski Chancery Court, John E. Martineau, Chancellor;
    affirmed.

      John D. Shackleford, for appellant.
    The unsigned memorandum contract of sale being definitely recognized and referred to by appellee in signed letters, constituted a memorandum in writing that takes the transaction out of statute of frauds.
      Ft. Smith v. Brogan, 49 Ark. 306. Statute does not apply to contract of sale of land made by correspondence. J op-pa Mattress Go. v. Ark. Standard Oil Co., 101 Ark. 548. Statute not inflexible. Pindall v. Trevor, 30 Ark. 249. Actual offer of money for agreed purchase price not necessary to constitute tender, appellee having refused to accept it. Burr v. Daugherty, 21 Ark. 559; Nix v. Rector, 4 Ark. 251; 28 Am. & Eng. Eneye. 5.

      T. N. Robertson and A. J. DeMers, for appellee.
    Contract for resale of the premises not enforceable, not being signed nor any memorandum thereof to take it out of requirement of statute of frauds. Sec. 4862 C. and M. Digest. Lee v. Vaughan Seed Store, 101 Ark. 68; Fort Smith v. Brogan, 49 Ark. 306; Cane v. Crowe, 114 Ark. 121; Holt v. Moore, 37 Ark. 145; Henry v. Knod, 74 Ark. 390. Case of Joppa Matress Co. v. Ark. Standard Oil Co., 101 Ark. 548, cited by appellant, distinguished Neither was there any tender of the purchase money nor any waiver of it. 38 Cyc. 143; 92 N. T. Supp. 891.
   McCulloch, C. J.

Appellant instituted this action against appellee in the chancery court of Pulaski County to compel specific performance of an alleged contract for the conveyance of certain real estate in Little Rock and a lot of furniture and other household effects in the building on the premises. The trial before the chancery court resulted in a decree dismissing appellant’s complaint for want of equity.

The real estate in controversy, a house and lot on West Third Street in the city of Little Rock, was owned by appellee and operated as a rooming house.

On May 18,1918, appellee entered into a written contract with appellant to sell the property to appellant for the sum of $9,500, of which sum appellant paid $1,000 in cash, assumed a mortgage to a banking institution of Little Rock in the sum of $4,000, and gave forty-five notes for $100 each, payable monthly. Appellant took possession under the contract and occupied the house, and paid sixteen of the notes as they fell due. The sale included also the furniture in the house at the stipulated prise of $2,000, making a total of $11,500 for the house and furniture. Later appellee conveyed the real estate to appellant by warranty deed, reserving a lien in the deed for the unpaid balance of the price.

On July 30, 1919, appellant, being still in possession of the premises, executed and delivered to appellee a quitclaim deed conveying to appellee all her interest in said real estate and personalty, and delivered possession of same to appellee.

It is alleged in' the complaint that at the time of the reconveyance of the property by appellant to appellee the latter entered into another contract in writing with appellant for resale of the property to appellant within one year upon the payment of the originál purchase price. Appellee denied this allegation in her answer as well as in her testimony. Appellant exhibited with her complaint what purports to be a written contract, for the resale of the property to appellant, but the instrument does not purport to have been signed by appellee. Appellant testified that the terms of the contract were orally agreed upon between her qnd appellee on the day she reconvéyed the property to appellee, and that the contract was prepared on that day, but that appellee postponed signing it, and finally refused altogether to sign it, claiming that she desired to make changes in the contract.

Appellee testified that she entered into no written •contract for the resale of the property, but that a day or two after the reconveyance of the property to her by appellant she orally agreed with appellant that she would resell the property to her upon the payment of the original purchase price in cash.

It. is undisputed that the contract exhibited with appellant’s complaint was never signed. It is conceded that the oral contract is within the statute of frauds, and this is undoubtedly true, for appellee was in possession at the time the alleged agreement was made, and nothing was paid under this agreement, nor was there ever any change of possession. Friar v. Baldridge, 91 Ark. 133; Barrett v. Durbin, 106 Ark. 332.

Appellant removed to Fort Worth, Texas, and letters passed between appellant and appellee, which are brought into the record as being sufficient to show a contract for the resale of the property, taking the transaction out of the operation of the statute of frauds. These letters, however, are wholly insufficient for that purpose, as they merely tend, in a remote degree, to show that there had been some understanding between appellant and appellee about a sale, but none of the letters contain any description of the property nor any of the terms of the alleged sale. St. L. I. M. & S. Ry. Co. v. Baldridge, 45 Ark. 17.

The alleged contract being within the statute of frauds and void, it is unnecessary to discuss the other questions in the case.

Decree affirmed.


text:
    Scott v. Columbia Compress Company.
    Opinion delivered March 19, 1923.
    1. Bailment — burden op proof. — The burden is on the bailee of cotton for hire to account for the loss thereof, but when it is shown that it was destroyed by fire the burden is upon the bailor to establish negligence on the part of the bailee or its servants in permitting the cotton to be thus destroyed.
    2. Appeal and error — harmless error. — Refusal of the court to charge that if a contract of bailment was written or caused to be written by the bailee, it should be construed more strongly against it, although the instruction was correct as an abstract proposition, was not prejudicial when the contract was not ambiguous, and was correctly interpreted by the court.
    3. ’ Trial — refusal op instruction already given. — The refusal of an- instruction substantially covered in a given instruction was not error.
    Appeal from Columbia Circuit Court; G. W. Smith, Judge;
    affirmed.

      Joe Joiner, for appellant.
    The court erred in refusing to give instruction No. 2, telling the jury the receipt, being in writing, should be construed more strongly against the maker, and also instruction No. 6 requested. Bertig v. Norman, 101 Ark. 75; Phoenix Cotton Oil Co. v. Pettus & Buford, 203 S. W. 19; Hornor Transfer Co. v. Abrams, 233 S. W. 825, Should not have instructed that “the fire raises no presumption of negligence” nor given instruction No. 3. Note 9 A. L. R. 569. Fleischman v. Southern R. Co., 56 S. E. 974.

      MoKay & Smith, C. A. Cunningham', of counsel for appellee.
    Refused instruction No. 2 abstract, .and No. 6 covered by others. Instructions 2 and 3, given at appellee’s request, correctly state the law. Kansas City Southern Ry. Co. v. Thomas, 97 Ark. 287; Little Rock & Ft. Smith Ry. Co. v. Hunter, 42 Ark. 200. Notes 9 Am. Law Reports 559; 16 Am. Law Report 280.
   McCulloch, C. J.

Appellee is a corporation engaged in the business of compressing cotton and storing cotton for hire at Magnolia, Arkansas, and it received from appellant, for storage, two bales of cotton, and executed a receipt therefor, stipulating that the cotton would “be delivered to bearer only upon return of this receipt and payment of all charges,” and the receipt also contained a stipulation exempting the company from liability for loss or injury on account of “accidents, concealed damages, water packs, acts of Providence, acts of the public enemy, or for damage or loss by fire, even when caused by negligence-.” Appellee failed to redeliver the cotton to appellant on demand, and this suit was instituted to recover the value of the cotton. There was a trial before a jury, which resulted in a verdict in favor of appellee.

•The testimony adduced by appellee tended to show that the cotton belonging to appellant was destroyed by fire when one of the buildings, the one in which this particular cotton was stored, was destroyed by fire.

Appellee also introduced testimony tending to show that it had exercised due care to protect the cotton and to prevent the occurrence of fire, and that the cotton was not lost on account of any negligence on the part of appellee or its servants. In other words, appellee, in its testimony, accounted for the cotton and showed that- it was destroyed by fire without negligence on the part of appellee.

There was, however, testimony introduced by appellant which tended to show that the cotton was not in the particular building that was destroyed by fire, and, if the jury accepted this testimony as true, there might have been a finding that appellee had failed to account for the loss of the cotton, and was therefore in default in failing to redeliver the cotton on demand.

The issues as to the loss of the cotton was submitted to the jury upon instructions requested at the instance of the respective parties.

The court instructed the jury that the stipulation in the receipt against liability arising from negligence was void, and that, if the property was lost through any act of negligence of appellee or its servants, appellee would be liable for the value of the cotton.

The instructions given by the court told the jury, in substance, that the 'burden of proof rested upon appellee to account for the loss of the cotton, 'but that, if it was shown that it was destroyed by fire, the burden was upon appellant to establish negligence on the part of appellee or its servants in permitting the cotton to be thus destroyed. These instructions were in accordance with repeated decisions of this court. James v. Orrell, 68 Ark. 284; Bertig v. Norman, 100 Ark. 75; Phoenix Cotton Oil Co. v. Pettus, 134 Ark. 76.

The refusal of the court to give the following instruction, requested by appellant, is assigned as error:

“2. You are instructed that if you find from the evidence that the receipt issued plaintiff when he delivered the cotton in question to defendant was written by defendant or by some one for it at its request, then it should be construed more strongly against the defendant.”

The refused instruction correctly stated an abstract proposition of law, but the refusal to give it was not prejudicial, for the reason that the court correctly interpreted the contract, and there was no ambiguity in it.

Again, it is contended that the court erred in refusing to give the following instruction:

“6.. The receipt in this case constituted the contract between plaintiff and defendant, and if you find from a preponderance of the evidence that there was a contract between plaintiff and defendant, and under that contract the defendant was bailee for hire, yon are instructed that, if the plaintiff has shown that the defendant is unable to comply with its part of the contract by returning the cotton to plaintiff when called for, the plaintiff should recover, unless the defendant is able to explain the loss why it is unable to return the property.”

This instruction was substantially covered by the preceding one, No. 5.

There are other assignments in regard to the court’s charge, which we do not deem of sufficient importance to discuss. We are of the opinion that the charge was correct, and that the issues have been settled against appellant upon legally sufficient evidence and correct charge concerning the law.

Judgment affirmed.


text:
    Cooper v. Phillips.
    Opinion delivered March 19, 1923.
    1. Ejectment — legal title. — Where the owner of land executed a trust deed to secure a debt, and thereafter executed a warranty deed to another, and subsequently executed a warranty deed to the creditor whose debt was secured by the trust deed in satisfaction of the debt, held that the legal title was in the grantee in the first warranty deed.
    2. Mortgages — title op trustee after satisfaction. — While a trustee under a deed of trust may, after breach of condition and before satisfaction, bring ejectment for the land, yet where the creditor for whose benefit a trust deed was made has accepted a warranty deed in satisfaction thereof, the trustee cannot thereafter maintain an action for possession of the land, though the person in possession holds under a warranty deed executed after the deed of trust but before the warranty deed accepted by the creditor.
    Appeal from Columbia Circuit Court; C. W. Smith, Judge;
    reversed.

      Henry Stevens, for appellant.
    Court erred in permitting plaintiff, who alleged be was entitled to possession of lands, to amend by making trustee in tbe trust deed a party plaintiff, amendment being tantamount to a new suit. State v. Rottaken, 34 Ark. 157; Grace v. Neel, 41 Ark. 165; Hopkins v. Harper, 46 Ark. 251; Railway Go. v. State, 56 Ark. 155; Schiels v. Dillard, 94 Ark. 277; Golemcm v. Floyd, 105 Ark. 300. Mortgage apparently barred by statute of limitations not admissible in evidence, same as unrecorded instrument. Morgan v. Kendricks, 91 Ark. 398; Hill v. Gregory-, 64 Ark. 318. Peremptory instruction for plaintiff should not bave been given.

      McKay & Smith, for appellee.
    An ejectment suit is a possessory action, and only tbe right to possession of the lands is involved. Richie v. Johnson, 50 Ark. 551; Hill v. Plunkett, 41 Ark. 65. Legal title to lands was in trustee in deed of trust, and only equitable title in mortgager. DanenJiauer v. Dawson, 65 Ark. 129; Turn,an v. Sanford, 69 Ark. 95;
      Trapnall v. State Bank, 18 Ark. 53; Perry County Bank y. Rankin, 73 Ark. 589; Foreman v. Halloway, 122 Ark. 341; Crittenden v. Johnson, 11 Ark. 94; Pope Heirs v. Boyd, 22 Ark. 535;. Mortgagor’s deed conveying the lands to appellant, the mortgage being of record and the debt unpaid, only passed her equity of redemption. Peuncell v. Gann, 113 Ark. 332. When the mortgagee failed to pay overdue mortgage debt, the plaintiff and the trustee had the right to possession .and could maintain ejectment against mortgagee. Fitzgerald v. Beebe, 7 Ark. 310. Owner of equity of redemption can’t bring ejectment against mortgagee in possession after condition broken. Cohn v. Hoffman, 45 Ark. 376. Where equity of redemption conveyed to mortgagee, estates do not merge. 12 Cyc. 1381.

      Henry Stevens, in reply.
    Complaint shows Frank Phillips not in possession when suit was brought, and the testimony that he had never been. Cases cited by appellee in 7 and 45 Ark. not applicable. Neither is citation 27 Cyc., 1381. 27 Cyc., 1402, is controlling, the equity of redemption having been .conveyed to the mortgagee in satisfaction of mortgage debt, and the trustee thereby eliminated.
   McCulloch, C. J.

Appellee instituted this action at law against appellant to recover possession of a tract of farm land in Columbia County. 'Both parties claim' title from a common source, and the facts, as they appear from the pleadings and proof, are undisputed.

The land in controversy was originally owned by Lizzie Rowe, who, on May 22, 1916, conveyed it by deed of trust to R. K. Mason, as trustee, to secure a debt to appellee in the sum of $360, evidenced by a promissory note of that date, due and payable on January 1, 1917, with interest.

Lizzie Rowe conveyed the land to appellant by warranty deed dated September 27,1918, for a price, part of which was paid at the time of the conveyance and the remainder was to be subsequently paid. On January 26, 1920, Lizzie Rowe executed to appellee a warranty deed purporting to convey the land in controversy to appellee in satisfaction of the said mortgage debt to appellee and the further sum of $150, paid at the time of the convey; anee, and appellant took possession of the land under his conveyance from Lizzie Rowe, and this action was instituted against him by appellee in November, 1920. Subsequently R. K. Mason, the trustee in the deed executed by Lizzie Rowe in May, 1916, was, on motion of appellee, joined as a plaintiff in the action. This was done over appellant’s objection.

The complaint of appellee alleged that the conveyance of Lizzie Rowe to him on January 26, 1920, “was made and executed in settlement o^ the indebtedness shown by said deed of trust hereinbefore referred to.” Upon the facts shown,' the. court gave a peremptory instruction in favor of appellee.

We are of the opinion that, without discussing the question of the correctness of the court’s ruling in permitting Mason, the trustee, to be made a party, the court erred in deciding in favor of appellee, and that the decision, upon the undisputed facts, should have been in favor of appellant. Appellee is not the legal owner of the land, and never has been such owner. The legal title did not pass to him, either under the deed of trust or under the warranty deed subsequently executed to him by Lizzie Rowe, and he could not maintain the action for possession. The defeasible legal title passéd under the deed of trust to Mason, the trustee, and not to appellee as the beneficiary under the deed. At the time of the execution of the warranty deed by Lizzie Rowe to appellee in settlement of the mortgage debt, the legal title had passed from Lizzie Rowe to appellant under her prior deed executed to appellant. It is contended, however, by counsel for appellee that the trustee was properly 'made a party and that, notwithstanding the conveyance of the land by Lizzie Rowe to appellant, an action cóuld be maintained by the trustee to recover possession for the purpose of taking the rents and profits to apply on the mortgage debt' or for the purpose of foreclosing under the power contained in tbe deed. It is correct to say that a trustee in a deed of trust can, after a breach of the conditions and before the satisfaction of the mortgage, maintain an action at law for the possession of the land. Reynolds v. Canal & Ranking Co., 30 Ark. 520; Danenhauer v. Dawson, 65 Ark. 129. The answer to this contention is that, according to the allegations of appellee’s complaint and his own statement of the facts in Ms testimony, the debt secured by the deed of trust had been settled, and the defeasible legal title, which had passed to the trustee by the terms of the deed, had been thus defeated. There was no right of action remaining in the trustee under the terms of the satisfied deed of trust. Appellee has therefore neither alleged nor proved a right of action, either legal or equitable. If there is any relief from the effect of the acceptance by appellee of the warranty deed from Lizzie Rowe in satisfaction of the mortgage, sufficient facts are not stated in the complaint to entitle him to that relief.

The judgment of the circuit court is therefore reversed, and the cause is remanded with directions to enter a judgment in favor of appellant.


author: Wood, J.

text:
    Logan v. Missouri Valley Bridge & Iron Company.
    Opinion delivered March 19, 1923.
    1. Pleading—CONSTruction.- — In construing a complaint to determine whether the cause of action he ex contractu or ex delicto, the allegations must he considered as a whole.
    2. Master and servant — complaint held to sound iN tort. — Although a complaint for personal'injury alleged that the relation between the parties was that of master and servant by contract of-employment and stated the duties growing out of that relation, and that the injury grew out of a breach of such duties, yet where the manner of the injury was alleged as arising from de-» fendant’s failure to furnish a safe place to work and in failing to furnish suitable appliances and tools, the complaint states a cause of action sounding in tort.
    3. Master and servant — complaint in ex delicto action. — In an action ex delicto for personal injuries by a servant against the master, it is necessary to allege the contractual relation and duties arising therefrom.
    4. Master and servant — injury to servant — right of action.— For a breach of a duty imposed by law, an injured employee may sue the employer either on contract or in tort, and an action in tort is not precluded because such duty arises out of a contractual relation.
    5. Torts — what law governs. — In actions of tort the liability or right of action is determined by the law of the place where the injury is inflicted without regard to the law of the forum or the law of the place where the contract was made.
    6. Contract — what law governs. — Where it was contemplated by the parties that a contract was to be performed in another State, the law of that State governs in determining the rights of the parties.
    7. Master and servant — workmen’s compensation act. — The Workman’s Compensation Act of Oklahoma is exclusive where an employee is injured while working in that State, and it provides that an action for injury to an employee can be maintained in no other court than before the Industrial Commission, and provides no machinery by which an employee injured in that State can avail himself of the benefits of ti e act in the courts of this State.
    Appeal from Pulaski Circuit Court, Third Division; A. F. House, Judge;
    affirmed.

      Sizer & Gardner and Allyn Smith, for appellant.
    The demurrer admits the allegations of the complaint, and the only question in the case is whether or not appellant’s remedy is under the Oklahoma Workmen’s Compensation Act, or under the laws of Arkansas. Our courts take judicial knowledge of the laws of other States. Sec. 4110, C. & M. Digest. It is conceded that in Oklahoma appellant could only bring his suit before the Industrial Commission proyided by its Workmen’s Compensation Act, and the question hinges upon -whether the action arises ex contractu or ex delicto. The workmen’s compensation acts have substituted a new oause of action for the common law action of the injured employee against his employer, and created new tribunals giving them exclusive jurisdiction of all isuch proceedings. The question involved here has not been determined, so far as we can learn, but its converse has been frequently decided. It is held, where the employer has complied with such act in the State of his residence, or where he maintains an office, an employee injured in the course of his employment outside that State may recover under the compensation act of the State where he and his employer resided. Pensabene v. Auditor, 140 N. T. S. 226, 155 App. Div. 368. Under this holding plaintiff may receive under the Oklahoma Compensation Act In courts of Arkansas. The law of the place of contract of employment governs an action in tort for negligent injury of employee. Schweitzer v. Hamburger, 138 N. W. 944; 78 Minn. 448; Cannaday v. Coast Line Co., 55 ,S. E. 836; 143 N. C. 439; 8 L. R. A. (N. E.) 939; Ruch v. Ry Co., 143 N. W. 1074; 153 Wis. 158; Grant Smith Partnership• Co. v. Rhode, 42 U. S. Sup. Ct. Rep. 157. The relation between the employer and' employee is purely contractual. Rogers v. Rogers, 7070 Ind. Ápp. 659; 122, N. E. 778; Niser v. Miller, 125 N. E. 652; McDowell v. Duer, 133 N. E. 840. The law of a place where a contract is made enters into it, and the right of the employee to recover under the Workmen’s Compensation Act is controlled by laws of State where contract is made, not where injury occurred, and plaintiff is entitled to recover under laws of Arkansas. Even should the court hold plaintiff’s action does not arise ex contractu, he should Nevertheless recover under § 1070, C. & M. Digest, the action being transitory. Pensabene v. Auditor, supra; Schweitzer v. Hamburger, supra.

      Rose, Hemingway, Cantrell & Loughborough, for appellee.
    The only question for decision is whether the complaint states 'a cause of action enforceable in this State. Cases cited by appellant reviewed .and argued not to support his position, not one of them;
    In an action ex delicto the right to recover and the amount of the recovery are governed by the law of the place where injury is received. Garter -v. Goode, 50 Ark. 155; St. L. I. M. S. By. Go. v. Brown, 67 Ark, 155; St. L. I. M. £ S. By. Go. v, Ilesterly, 98 Ark, 240; Turner v. St. Glair Tunnel Go., 70 N. W. 146, W. 48. The appellant states an action ex delicto and his right to recover is dependent in the Oklahoma law, does not state an ex contractu, cause of action. Fordyce v. Nix, 58 Ark. 136; St. L. I. M. & S. By. v. Mynott, 83 Ark 6; Miller v. Mintu/n, 73 Ark. 186. The court regards substance rather than form. Johnson v. Duilinger, 140 Ark. 511, 1 Corpus Juris, 1016. Had plaintiff stated a cause of action ex contractu he could not recover here, since the parties contemplated performance was to take place in Oklahoma. Johnson v. Nelson, 150 N. W. 620; Mitchell v. St. Louis Smelting £ Befining Go., 215 S. W. 506; Grebbin v. Deloney, 70 Ark. 493. Granting the contract was made with reference to Arkansas law, the action ex contractu cannot be sustained, the injury having occurred in Oklahoma. Arkadelphia Electric Light Go. v. Arkadelphia, 99 Ark. 178; Kansas, Ft. Scott & Memphis By. Go. v. Becker, 67 Ark. 1; Alabama G. S. £ B. Go. v. Gar-roll, 11 So. 803. We think the general statement as to the right of election between actions ex contractu or ex delicto is at most only applicable territorially, and then only when the law-imposed conditions result from express statutory enactment. In re Americcm Mutual Life Ins. Go., 102 N. E. 693; Gooding v. Ott, 87 S. E. 862; American Badiator Go. v. Bogge, 92 Atl. 85; Spratt v. Sweeney £ Gray Go., 153 N. Y. Supp. 505; Post v. Burger £ Goelke, 216 N. Y. 544; Minor on Conflict of Laws, 507; Bret v. Gulf G. F. £ S. By. Go., 22 S. W. 1064. Our courts will not endeavor to enforce the Workmen’s Compensation Act of Oklahoma. Galveston, H. S. £ A. By. Ob. v. Wallace, 223 U. S. 481; Lehman v. Baymo Film

      Co., N. Y. S. 1032; Slater v. Mexican National-By., 194 U. S. 120.

      Sizer & Gardner and Allyn Smith, in reply.
    If the cause of action grows out of the relation of employer and. employee, it is contractual, and the demurrer should have been overruled. Parker v. Wilson, 179 Ala. 361; 60 So. 150; 43 L. R. A. (N. S.) 87. Telephone Co. v. Woughter, 56 Ark. 206; Choctaw B. B. Co. v. Jones, 77 Ark. 362; 92 S. W. 246. Appellee corporation.doubtless complied with the Arkansas law while doing business in the State, and it was doing business here when the injury occurred. Person v. Dry Goods Có., 113 Ark. 467.
   Wood, J.

The appellant instituted this action against the appellee to recover damages for personal injuries. The complaint alleged substantially the following:

The appellee is a Kansas corporation authorized and doing business in this State. . On the 12th day of September, 1921, it was engaged in building a bridge from the foot of Garrison Avenue in the city of Fort Smith, Arkansas, on the south side of the river, to a point on the opposite bank on the north side in the State of Oklahoma. The appellant was a resident of the State of Arkansas and an employee of the appellee. He was required, as a part of his duties, to oil the steam shovel or clam-shell which was used by the appellee in excavating the earth from the river for the foundations of the bridge. The work had progressed from the Arkansas' side to a point beyond mid-stream and to the Oklahoma side of the river. The appellee maintained its office from which the work of construction was conducted in Fort Smith, Arkansas, where it hired its employees. The appellant and other employe^, in going to their work in the morning and in quitting at night, checked in at the Fort Smith office, and started to their work from that office and were paid at such office. Appellant, while engaged about his work on the day above mentioned, on the end of the bridge in Oklahoma, was severely injured, as lie alleges, through the negligence of the appellee. The manner of such negligence and the nature' of his injuries he specifically sets forth. He alleged that his relation to the appellee ,at the time was purely contractual; that the contract of employment was entered into between linn and the appellee in Arkansas and was made with reference to the laws of Arkansas; that these laws became a part of the contract, and that, under the laws of Arkanas, it was the duty of appellee to furnish appellant a reasonably safe place to work and reasonably safe tools and appliances with which to perform his work, which duties, the appellant alleges, appellee failed to perform. The appellant concludes his complaint by alleging that the injury was caused solely by the breach of contract between appellant and the appellee in that the appellee negligently failed to furnish him a safe place to work and suitable appliances and tools with which to do his work. The allegations of the complaint specify in detail the particulars in which the appellant charges that the appellee failed to discharge its duties as master toward him as servant. He concludes his complaint with a prayer for damages in the sum of $50,000.

The appellee filed the following demurrer to the complaint: “First. It does not state facts sufficient to constitute a cause of action. Second. Because the action, which sounds in tort, was committed in the State of Oklahoma, and is governed by the laws of said State, and can be prosecuted only in the court having proper jurisdiction in said State. Third. Because this court has no jurisdiction of the subject-matter of the complaint.” The court sustained the demurrer. The appellant stood on his complaint, and the court entered a judgment dismissing the same, from which is this appeal.

The appellant contends, first, that his complaint states a cause of action against the appellee for a breach of contract entered into in this State which entitles him to recover damages under the laws of Arkansas; and second, that appellant, being a resident of Arkansas, and having been employed by the appellee in Arkansas, may enforce in the-courts of this State the liability of the appellee for the injury done him, through its negligence, while in its employ, under the Oklahoma Workmen’s Compensation Act.

(a). In construing a pleading to determine whether it states a cause of action and consequent liability growing out of and caused by a breach of contract, or whether it states a cause of action growing out of and caused by a tort — in other words, whether the cause of action be ex contractu or ex delicto — the allegations of the complaint must be considered as a whole. As was said in Fordyce v. Nix, 58 Ark. 136, “the character of the action must be determined by the nature of the grievance, rather than the form of the declaration.” Now, when this complaint is taken by its four corners, it seems clear to us that the pleader intended by its allegations to state a cause of action sounding in damages for a tort, rather than a cause of action wherein the tort was waived and liability and damages growing out of a breach of contract only were insisted upon. While the allegations of the complaint set forth that the relation between the appellant and the appellee was that of master and servant, by virtue of the contract of employment, and stated the duties of the one to the other growing out of such relation, and that the injury was caused solely by a breach of such duties, yet the manner of the injury is specifically set forth as follows: “That the defendant negligently failed to furnish him a safe place to work, and in failing to furnish him with suitable appliances and tools about which and with which he was required to work, in this, to-wit: that said defendant company allowed and permitted the cross-pieces nailed against said boom for use as a ladder to become rotten and unsafe, so that when the plaintiff placed his weight thereon, on climbing said ladder, the said cross-piece upon which he stepped pulled loose, and, being in its rotten condition, the nails which held it in place pulled through said rotten piece, the defective condition of which said piece said defendant knew, or with reasonable care and diligence might have known and have repaired the same, and by so doing would not have been guilty of a breach of the said contract as aforesaid. * * * Plaintiff states that, by reason of the negligence aforesaid of the said defendant in failing to comply with the terms of said contract as aforesaid, he has been injured and damaged in the sum of $50,000.”

Now, it was necessary in the action ex delicto, which we construe this to be, for the appellant to allege that the contractual relation of employer and employee existed between him and the appellee, because if he had been a mere volunteer, interloper, or trespasser, at the time of his injury, the appellee would have owed him no duty, and hence he could have had no cause of action against the appellee even for the tort. But in a cause of action in which the appellant purposed to waive the tort and claim damages only for a breach of contract, it was Wholly unnecessary for appellant to emphasize the fact, as he did, that the “company negligently failed to furnish him a safe place to work” and “with reasonable care and diligence might have known and repaired,” etc., and “by reason of the negligence aforesaid in failing to comply with the terms of its contract,” etc. Such allegations are peculiarily apposite in an action of tort, but they are wholly unnecessary in an action wherein the tort is waived and only a breach of the contract relied upon. "With painstaking amplification the pleader has stressed the contract relation between appellant and appellee and its breach, but we are nevertheless impressed, after consideration of all the allegations of the complaint, that the cause of action should be construed as one ex delicto and not one ex contractu. The appellant, after alleging that the relation between him and the appellee was purely contractual, further alleged that the injury was caused solely by breach of the contract, but this latter allegation is in conflict with other allegations which clearly state that the injury was caused by the negligence and want of reasonable care and diligence on the part of the appellee. The allegations setting forth the contractual relation of employer and employee between the appellee and appellant, and the negligence or wrongful acts of appellee’s servants, resulting in the injury of which the appellant complains, constituted a cause of action in favor of the appellant against the appellee which can be more approximately classed as one ex delicto than one ex contractu'.

It was necessary to allege the contractual relation and the duties of such relation, as we have seen, before the appellant could recover from personal injuries in an action ex delicto. These necessary allegations are contained in appellant’s complaint. There are certain duties growing out of the contractual relation of employer and employee that do not arise by virtue of any express agreement between the parties, ibut are duties implied and imposed by law independently of the express terms of the contract, and a breach of such duties resulting in personal injury will constitute a tort. The injured employee may sue either for breach of the contract or in tort for breach of the duty imposed by law, and an action' in tort is not precluded because such duty arises put of a contractual relation. 1 C. J. 1015-1016, secs. 138-139; Kansas City, Fort Scott & Memphis Ry. Co. v. Becker, 67 Ark. 1.

As we view the allegations of the entire complaint, the court below was certainly justified in treating the action as one ex delicto. Fordyce v. Nix, supra; Millar v. Mintun, 73 Ark. 186; St. L. I. M. & S. Ry. Co. v. Mynott, 83 Ark. 6.

“In actions of tort the law is well settled that the liability or right of action is determined by the law of the place where the injury is inflicted, without regard to the law of the forum or the law of the place where the contract was made.” Johnson v. Nelson, 150 N. W. (Minn.) 620.

(b). But, if we are mistaken in this, and the action be considered one in which the tort is waived and recovery sought alone for breach of contract, nevertheless, the appellant could not maintain this action because it was clearly contemplated by the parties that the contract should be completely performed in the State of Oklahoma. The allegations of the complaint show that at the time of appellant’s injury he was performing the work which he had contracted to do in the State of Oklahoma. In Liebing v. Mutual Life Ins. Co. of New York, 207 S. W. 230, it is said: “When the terms or nature of the contract show that it is to be performed in another country or State, then the place of making the contract becomes so far immaterial, and the law of the place where the contract is being performed governs in determining the rights of the parties.” See also Mitchell v. St. Louis Smelting & Refining Co., 215 S. W. 506; Johnson v. Nelson, 150 N. W. 620. It follows that, whether the action be construed as one ex contractu or one ex delicto, the issue as to whether or not the appellee is liable depends upon the laws of Oklahoma.

Appellant concedes that in Oklahoma the Workmen’s Compensation Act'is exclusive and that appellant could wage his suit in that State in no other court than before the Industrial Commission provided for by the Workmen’s Compensation Act. But appellant contends that in an action ex delicto the courts of Arkansas will enforce a right of action in favor of an employee, a resident of the State, against his employer for personal injury which occurred in the State of Oklahoma. This contention is unsound and cannot be sustained. Appellant’s right of action is transitory, but an examination of the Oklahoma Workmen’s Compensation Act, of which we take judicial notice, will discover that no machinery isi provided by statute by which appellant could avail himself of the benefits of the Workmen’s Compensation Act-in this State. Likewise, there are no judicial processes ’ in this State that could be adapted to the enforcement of the provisions of the Oklahoma Workmen’s Compensation Act. The complaint contains no allegations that would make the provisions of the Oklahoma Workmen’s Compensation Act available through any court procedure in this State.

The judgment of the circuit court sustaining the demurrer to appellant’s complaint and dismissing the same is therefore correct, and it is affirmed.


author: Wood, J. Hart, J.,

text:
    Bourland v. Pollock.
    Opinion delivered March 19, 1923.
    1. Municipal corporations — general welfare clause — contribution to charity. — Under the general welfare clause of Crawford & Moses’ Dig., § 7494, conferring on municipal corporations power to make ordinances necessary to provide for the safety, preserve the health, promote the prosperity and improve the morals, order, comfort and convenience of such corporations and the inhabitants thereof, a city was authorized to contribute money to a welfare association organized “to cause aiflicted and diseased children to receive medical attention, to maintain a maternity ward for expectant mothers unable to have sanitary and proper surroundings for their ordeal, to care for babies whose parents are unable to care for them, to furnish food and clothing for' those unable to buy the same, and free soup for families unable to buy nourishing food, and to provide moral surroundings for girls without homes.”
    2. Municipal corporations — charitable contributions. — Const, art. 12, § 5, providing that no municipality shall appropriate money for or loan its credit to any corporation, association, institution or individual, held not to prohibit a -municipal corporation from making appropriations to a welfare association or committee organized to render aid to the poor and unfortunate of the city.
    3. Municipal corporations — charitable contributions. — The fact that the general statutes provide ways and means of doing the work which a welfare association organized to help the poor and unfortunate of the city was doing did not make a municipal ordinance appropriating money for the support of such association invalid.

      Appeal from Sebastian Chancery Court, Port Smith District; J. V. Bourland, Chancellor;
    affirmed.

      Fadjo Cravens, for appellant.
    Appellant contends that the ordinance of the city of Port Smith appropriating or donating money to the welfare association is void, being in conflict with the Constitution. Sec. 5, art. 12, Constitution. The statutes make ample provision for caring for the unfortunate, the needy, the sick and afflicted. Sec. 2, act 629, Acts of 1919. 'Sec. 8159, Crawford & Moses’ Digest.

      Hill & Fitzhugh, for appellee.
    The ordinance is not in conflict with the Constitution, nor invalid, and the decree should be affirmed. Provisions of articles of the Constitution of 1874 reviewed and construed in connection with and in the light of the history of the times, secs. 4, 5, 7 and 12 of art. 12; sec. 1, art. 11; secs. 8, 9 and 11 of art. 16; sec. 27, art. 19. The general rule is that no taxation can be levied for other than public purposes, and the objects of their association to relieve the unfortunate and improve the health and morals of the community stamp it a public purpose, for promotion of which taxation money can be expended. Cooley on Taxation, 204-5; Cumnock v. Little Rook, 10 L. R. 519; Jonesboro v. Montague, 143 Ark. 13; Shepherd’s Fold of the Protestant Church v. Mayor, Aldermen and Commonalty of City of New York, 96 N. Y. 137. An analogous question presented in Brizzolara v. State, 37 Ark. 364. See also DeWitt v. Laootts, 76 Ark. 250. Brooks v. State, 86 Ark. 364. The city is not divested of authority to do welfare work because the county or other public agencies are also engaged in it. A juvenile court has been created for another branch of the work. Secs. 5752-3, Crawford & Moses’ Digest.
   Wood, J.

The Port Smith Federated Welfare Association (hereafter called welfare association) is a voluntary unincorporated organization, assembly, or committee, composed of the mayor of the city of Port Smith, commissioner No. 1 of Fort Smith (the commissioner in charge of public health, and safety), the county judge of Sebastian County, the pauper commissioner of the Fort Smith District of Sebastian County, the juvenile officer of the Fort Smith District of Sebastian County, and representatives of various civic and social clubs, organizations and associations in the city of Fort Smith, which have as one of their objects the promotion of benevolences in that city.

The purposes of the “welfare association” are as follows: “To cause afflicted and diseased children to receive medical attention, to maintain a maternity ward for expectant mothers unable to have sanitary and proper surroundings for their ordeal, to care for babies whose parents are unable to care for them, to furnish food and clothing for those unable to buy the sapie, and free soup for families unable to buy nourishing food, and to provide moral surroundings for gilds without homes.”

There is held annually in the city of Fort Smith a mass meeting, pursuant to notice, of people interested in the sick and afflicted of the town. At that meeting two members are elected and representatives are chosen from the various civic and social clubs, associations and organizations above mentioned, and these, with the mayor and commissioner No. 1 of the city of Fort Smith and the county judge of Sebastian County, the pauper commissioner of the Fort Smith District of Sebastian County, and the juvenile officer of the Fort Smith District, constitute the “welfare association” or committee for the ensuing year. One of the members of the welfare association is designated as the president and-another is designated as treasurer thereof. The members thus chosen are designated the “welfare association,” but it is not in reality an association; institution, or corporation, but a mere committee of officers and charitably disposed citizens who undertake to effectuate the purposes of the welfare association as above set forth. The committee maintains a day nursery to care for babies who have no mothers, or whose mothers are unable to care for them; maintains a maternity ward, and has established a free clinic. The medical association appoints members to serve weekly at such clinic without compensation, and there are brought to the clinic, through visiting committees consisting of men and women appointed by the welfare association, afflicted children for examination and treatment, for various dental work, vaccination, etc. The welfare association maintains a building to which matrons at depots and other persons carry homeless girls and place them there, under moral surroundings and restraints calculated to deter them from waywardness and immorality. The welfare association furnishes food and raiment to the indigent of the city who are in need thereof.

This action was brought by the appellants as the board of commissioners of the city of Fort Smith against the appellee in his individual capacity and as treasurer of the welfare association. The complaint alleges that the appellee, as treasurer of the welfare association, receives and disposes of all funds thereof; that the board of commissioners of the city of Fort Smith passed an ordinance appropriating to the welfare association the sum of $125 per month; that the city clerk, acting under the authority of the above ordinance, drew a check upon the'general funds of the city for the month of November, 1922, in the sum of $125; that the ordinance appropriating the money for the purposes indicated is unconstitutional and void; that the check is negotiable and an outstanding evidence of indebtedness against the general funds of the city of Fort Smith. They allege that the appellee, unless restrained, will cash the check and thereby deprive the city^- of Fort Smith of the funds in which it is legally entitled; that the city has no sufficient or adequate remedy at law to prevent the collection oF such funds by the arm el lee, and thev therefore anv that he' be enjoined from cashing the check and be directed to return the same to the proper authorities of the city.

The treasurer of the appellee answered, setting up the organization and purposes of the welfare association as above set forth, admitting that he held the check as alleged in the complaint, and alleged that he was entitled to have the same paid out of the general funds of the city, and, unless restrained and enjoined, he will proceed to collect and expend the same under the auspices of the welfare association. He denied that the ordinance'of the city, under the authority of which the check was drawn, is unconstitutional and void. He alleged that the appropriation of the money for the purposes indicated was not a loaning of the credit of the city to any corporation, association, institution, or individual, but the money was appropriated and about to be expended in the preservation of the health and to promote the prosperity and improve the morals, comfort and convenience of the inhabitants of the city in behalf oh the sick and afflicted children, and the other benevolent and charitable purposes for which the welfare association, as above indicated, was constituted. The answer then set? up the manner in which the welfare association was constituted and its purposes, as already stated, and specifically enumerates the various charities it has conserved, in accordance with the purposes of the welfare association, and specifically states the amount of funds it had paid out for such charities.

There was a demurrer to the answer. The court heard the cause upon the complaint, the answer thereto, and the demurrer, and the testimony of one D. C. Green, who was the president of the welfare association. The testimony of Green shows that the work of the welfare association was materially aiding the health of the children of the city, especially through the free clinic and the nourishing food given those otherwise unable to receive the same; that it had improved the morals of the town in giving care and attention to wayward girls, and had relieved much suffering among people unable to care for themselves and who were not sufficiently fed and clothed.

The court overruled the demurrer to the answer and entered a decree dismissing the complaint for want of equity. From that decree is this appeal.

Section 5, article 12, of the Constitution of 1874 is as follows: “No county, city, town, or other municipal cor poration shall become a stockholder in any company, association or corporation, or obtain or appropriate money for or loan its credit to any corporation, association, institution or individual.” The question for decision is whether or not the ordinance appropriating money to the Fort Smith Federated Welfare Association, as set up in the pleadings, is contrary to the above provision of the Constitution. The complaint alleges that the welfare association is “a benevolent organization organized for the purpose of rendering aid to the poor and unfortunate of the city” (Fort Smith).' The answer alleged, and the demurrer admits, and the proof shows, that the welfare association “is not an association, institution, or corporation, but it is a mere committee of officers and charitably disposed citizens who undertake to carry on the work above mentioned in behalf of the sick and afflicted children, wayward girls, and worthy or indigent families who are undernourished and poorly clothed and fed.”

It will be observed therefore that the so-called “welfare association” does not in fact come within the inhibitory words of the Constitution. It is not a “corporation, association, institution, or individual,” but a committee formed in the manner alleged in the answer and shown by the proof, to effectuate the benevolent and moral purposes designated, all for the preservation of the health, the promotion of the prosperity, and the improvement of the morals of the inhabitants of the city of Fort Smith. The commendable objects for which this committee was organized come well within the general welfare clause of our statute which confers upon municipal corporations “power to make and publish such by-laws and ordinances, not inconsistent with the laws of this State, as to them shall seem necessary to provide for the .safety, preserve the health, promote the prosperity and improve the morals, order, comfort and convenience of such corporation and the inhabitants thereof.” Sec. 7494, C. & M. Digest. Judge Cooley says: “The support of paupers and the giving of assistance to those who, by reason of age, infirmity, or disability, are likely to become such, is, by the practice and common consent of civilized countries, a public purpose. The laws not only exempt from taxation the limited means of such persons, but they go further and provide public, funds with which to furnish them retreats where they can be supplied with the necessaries, and, to a reasonable extent, with the comforts of life. Hospitals are also provided where dependent classes can receive medical aid and assistance, and asylums where the deaf, the dumb, and the blind may be supported and taught, and where the insane may be kept from doing or receiving harm, and can have such careful and scientific treatment, with a view to their restoration, as they would not be likely to receive elsewhere. He would be a bold man who, in these days, should question the public right to make provisions for these benevolent objects. And this provision might not only be made by the establishment of institutions for the purpose, but private institutions. might undoubtedly be aided with public funds, in consideration of services to be rendered to the public, and expenses to be incurred by them in assisting and relieving the same necessitous and dependent classes.” Cooley on Taxation, pp. 204-5.

Under the specific enumeration of powers conferred by statute upon municipal corporations contained in § 7529 of Crawford & Moses’ Digest, the power to construct and maintain city hospitals is not mentioned, yet this court, in the recent case of Cumnock v. Little Rock, 154 Ark. 471, held that municipal corporations had such power, under the general welfare clause, to preserve the health and promote the comfort and convenience of the inhabitants of the city. If the building of a city hospital is within the implied powers granted to municipal corporations under the general welfare clause to preserve the health of the inhabitants of the city, then surely the benevolent purposes which the welfare association was organized to perform, and is performing, in the city of Fort Smith come also well within the compass of these powers. For there are no more worthy or higher objects of government to he attained than those of making suitable provision for the care and maintenance of those of the city’s inhabitants who, through unavoidable casualty and misfortune, have become indigent and sick, and who are therefore wholly unable to care for themselves. This includes not only the aged and infirm, but orphans, or babies and poor dependent children whose parents are unable to care for them. In short, it would be difficult to imagine or state a more deserving public purpose or one coming-more within the compass of the true functions of municipal government, than the benevolent objects set forth in the answer and shown by the proof in this record which the welfare association has sponsored and is successfully performing for the inhabitants of the city of Fort Smith.

The question then recurs, is there anvthing in the above provisions of the Constitution prohibiting the city government of the city of Fort Smith from passing an ordinance appropriating money out of the general funds in its treasury to aid the welfare association in carrying out the laudable work which it is doing? In Jonesboro v. Montague, 143 Ark. 13, we said: “"When the powers to be performed by the governing bodv of municipal corporations are of a ministerial, administrative, or executive nature, they may delegate the power to a committee. The business of municipal corporations, 'like other corporations, must be conducted through agents. To segregate a municipal corporation from all other corporations in the methods employed in the transaction of business would prove highly detrimental to all concerned, and if it could not act upon any matter properly before it which also affected the rights of its officers, few competent persons could be induced to accept such offices.” That piinciple applies here. In contributing of its funds to this welfare association or committee to carry on governmental work which otherwise the city would have to perform, or at least should perform through some other agency, it in effect but adopts this welfare association as its own agency to do the character of governmental work which manifestly the city authorities conceived could be better, or at least as well, done as, through some instrumentality which was exclusively- of .its own creation and over which it had suprepae control.

It will be observed that the Welfare Association had in its membership a majority of the commissioners charged with the city government of the city of Fort Smith. Thus the city, through its officers as members of the welfare association, does have a large voice in the distribution of the fund contributed by it to the benevolences mentioned. It occurs to us that the fact that private individuals and civic clubs and organizations also contributed to a fund which is used to accomplish the same objects does not make the contribution by the city any the less a contribution toward the legitimate purpose of promoting the general welfare of its inhabitants, and thus performing a governmental function.

Any one at all familiar with the history of -the times and the conditions and environment of our State Government when the Constitution of 1874 was framed will ^know that the wise men who laid the various provisions of our organic law, among them the section above quoted, did not have in mind the prevention of municipal aid to committees, or other ^¿asi-municipal governmental agencies to carry out the purposes of municipal government. The Constitution of 1874 was framed in convention as the organic law of the State of Arkansas hv representatives chosen by the people just after they had been disenthralled from a government which had been foisted upon them by acts of Congress during the period known as the Reconstruction Era, and which government, out of popular derision and contempt for those then in authority, was designated as “the carpetbag government,” because it was dominated for the most part by foreign political adventurers and freebooters who came among us for no other purpose than to exploit the resources of our people for their private gain. During this period the people of the State at large and of many of the counties and municipalities were burdened with oppressive exactions of taxation laid for the purpose of paying bond issues and guarantees of bond issues, of public and g"«<m-public corporations, granted ostensibly in aid of railroad and levee building and other such projects, but which projects in reality were never consummated, and from which the people themselves received no benefit whatever. In other words, there was a saturnalia of bond issues given to companies, associations, corporations, institutions, and individuals, which were conceived, planned, and carried out by those then having the reins of government, not for the public good, but for the private loot and enrichment of those in governmental control. Section 5, article 12, of the Constitution, supra, was intended to forever forestall and prohibit a recurrence of such conditions. It was with this in view that municipal corporations were prohibited from appropriating money or lending their credit to corporations, associations, institutions', or individuals who were either organized for or engaged in purely private enterprises, or who, if organized for or engaged in a public enterprise, or guasi-public enterprise, might exploit or use the public funds or resources of the State’s governmental agencies for private gain. It was never the design of the builders of the framework of our government to prohibit ihunicipalities from carrying on governmental functions of the character indicated in this record through any agency which they might select for those purposes. It must be remembered that the intent of the framers of the Constitution, gathered from both the letter and spirit of the instrument, construed in the light of the history of events which gave it birth, is the law. Martin v. State, 60 Ark. 343-348.

As we have shown, the welfare association does not come within the letter of the constitutional inhibition, nor does it come within its spirit. Following the trend of thought expressed by Judge Cooley, supra, and the doctrine in harmony therewith declared in Cumnock .v. Little Rock, supra, we now hold that the work of the welfare association, as set forth in this record, was well within the sphere of the municipal government of the city of Fort Smith, and that section 5, article 12, supra, of the Constitution, should be construed as if such governmental purposes were expressly authorized by it. An illuminating authority in support of the conclusion thus arrived at is that of Shepherd’s Fold v. Mayor, etc., of New York, 96 N. Y. 137. See also Wisconsin Industrial School for Girls v. Clark County, 103 Wis. 657-669; McLean County v. Humphreys, 104 Ill. 387, where it is declared, “it is the unquestioned right and imperative duty of every enlightened government, in its character of parens patriae, to protect and provide for tbe comfort and wellbeing of such of its citizens as, by reason of infancy, defective understanding, or ' other misfortune or infirmity, are unable to take care of themselves. The performance of this duty is justly regarded as one of the most important of governmental functions, and all constitutional limitations must be so understood and construed as not to interfere with its proper and legitimate exercise,” the above doctrine. A’majority of us unqualifiedly approve.

It is argued in the brief of counsel for the appellants that, inasmuch as statutes of the State which apply to the area over which the city of Fort Smith has jurisdiction, and the general statutes of the State, adequately provide ways and means for doing the work of the welfare association other than through the instrumentality of such welfare association, therefore the ordinance under review is invalid because it undertakes to do or to aid in doing the same work through the agency of such association or committee. This argument is manifestly unsound. Because the county, as a governmental agency, may do a part of the same work under general statutes, or the city may do all, or a part of the same work in other or different ways, or through different agencies, is no reason why the city may not adopt the welfare association as the most economical and efficient instrumentality that could be adopted for accomplishing the purposes of municipal government as set forth in this record and authorized by the general welfare clause 7494, C. & M. Digest) of our statute relating to municipalities. These powers and instrumentalities are not in conflict, but are concurrent and auxiliary. See, by analogy, Brizzolara v. State, 37 Ark. 369; DeWitt v. LaCotts, 76 Ark. 250; Brooke v. State, 86 Ark. 364.

It follows that the decree of the chancery court of Sebastian County is in all things correct, and the same is therefore affirmed.

Hart, J.,

(dissenting). The Chief Justice and myself are of the opinion that the ordinance appropriating money to the Fort Smith Federated Welfare Association violates art. 12, § 5, of the Constitution of 1874, which reads as follows: “No county, city, town or other municipality corporation shall become a stockholder in ¡any company, association or corporation, or obtain or appropriate money for, or loan its credit to, any corporation, association, institution or individual.”

It will be noted that this provision of the Constitution prohibits municipal corporations from appropriating money for or loaning its credit to any corporation, association, institution or individual. Hence the first question to be considered is whether the Fort Smith Federated Welfare Association is an association within the meaning of the Constitution.

It is true the association is devoted to charitable purposes, but it is nevertheless a voluntary association, and is not under the legal control of the city. While the mayor was elected a member of the board of directors, this was done by the voluntary action of the members of the association, and he was not elected pursuant to any law requiring it, nor did he become a director by virtue of his office as mayor. Neither the city nor the State has any control whatever over the association or management of its affairs. The institution owes no duty to the city or to the State. The question is whether the association comes within the prohibition of the Constitution. The same principle would apply as in cases of public and private corporations. Under this provision of the Constitution a municipal tax must be for a public and not a private purpose. Under it, the Legislature has no power to authorize a municipal corporation to make a gift of money raised by taxation to a voluntary association of individuals or an institution organized to carry on private charity, although it may result in incidentally benefiting the public. See Dartmouth College v. Woodward, 4 Wheat. (U. S.) 518.

The ordinance under consideration by its terms made a donation for the support and maintenance of the Fort Smith Federated Association, and, by the terms of the section of the Constitution above quoted, such donation was prohibited. This provision of the Constitution is self-executing, and required no legislation to place it in full force and effect.

In considering a similar question under a similar clause of the Constitution of the State of Illinois, in the case of Washington Home of Chicago v. City of Chicago, 29 L. R. A. 798, the Supreme Court of that State held that a corporation composed of private individuals, not restrained by law from conducting its business for private benefit, which does not report to and is not inspected by any 'State official, elects its own managers "without the State’s approval, and by law owes the State no duty, is a private corporation within the pror visions of the Illinois Constitution prohibiting municipalities from making donations to private corporations.'

In the article on Municipal Corporations in Ruling Case Law, it is said that the power of a municipal corporation under legislative authority to expend funds raised by taxation upon public institutions, such as hospitals, schools and similar undertakings which are owned* operated and controlled by the municipality, is unquestioned. Continuing his discussion of the subject the author said: “It is not, however, within the power of a municipal corporation, even with express legislative authority, to donate funds in aid of ia private institution, although it is devoted to a charitable educational work for which public funds might lawfully be expended by the municipality directly if the corporation controls the institution, selects its own officers, manages its own affairs 'and owes no duty to the State except that which arises from the nature of the work undertaken by it. The incidental benefit to a city of town from the location of such .an institution within its limits is not the kind of benefit and interest which will authorize a resort to the power of taxation.” 19 R. C. L., sec. 25, pp. 716-717. Several cases in addition to the one above mentioned are cited in support of the text. Among others is the case of Egan v. City and County of San Francisco, 165 Cal. 576, 133 Pac. 294, Ann. Cas. 1915-A, 754. In that ease the Supreme court of California held that, even if it should be granted that the municipality had the right, under its charter, to own and conduct an opera house, it did not have the power, after acquiring the ownership of such structure located on the land belonging to the municipality, to turn over to a body of prh vate citizens the absolute control and management of the property. The court said that the public use of public property could not coexist with the private management and control of such property.

The same reasoning applies here. If the management of a hospital or other like building owned by the city could not be turned over to the control and management of some private agency, the city could not donate the public funds to aid a private association, although its activities are devoted to charity and are beneficial to the public.

We think this principle was distinctly recognized in the case of Shepherd’s Fold v. Mayor, etc. of N. Y., 96 N. Y. 137, relied upon to sustain the majority opinion. In that case the court was construing secs. 10 and 11 of an amendment to the Constitution adopted by vote of the people in November, 1874. So much of the sections as are applicable are as follows:

'“Sec. 10. Neither the credit nor the money of the State shall be given or loaned to or in aid of any association, corporation or private undertaking. This section shall not, however, prevent the Legislature from making such provision for the education and support of the'blind, the deaf and dumb, and juvenile delinquents, as to it may seem proper. Nor shall it apply to any fund or property now held, or which may hereafter be held, by the 'State for educational purposes.
Sec. 11. No county, city, town or' village shall hereafter give any money or property, or loan its money or credit to or in aid of any individual, association or corporation, or become directly or indirectly the owner of stock in, or bonds of, any association or corporation; nor shall any such county, city, town or village be allowed to incur any indebtedness except for county, city, town or village purposes. This section shall not prevent such county, city, town or village from making such provision for the aid and support of its poor as may be authorized by law.”

The court in construing them said: “The general scheme of the constitutional provisions referred to seems to he that the general funds of the State shall not be given to local charitable institutions., except in aid of the blind, the deaf and dumb, and juvenile delinquents, and that the poor are to be provided for in their localities, counties, cities, towns and villages, being allowed to make any provision for the support of their poor which may be authorized by law. Carrying out the designated charities through the instrumentality of private corporations is not prohibited by the Constitution, but the giving away of the money either of the State or of its counties or other local divisions to individuals or priváte corporations, except for .the designated purposes for which each is authorized to provide, is forbidden.”

In 'addition there was a statute empowering the commissioners of charities to transfer orphans and friendless children to the charge of the Shepherd’s Fold. There was also a statute authorizing the board of supervisors of the county of New York to levy 'and collect a tax and pay the same over to the Shepherd’s Fold, to be applied to the purposes and objects of the said corporation. The court said that, having the authority, under the Constitution, to commit to the charge of the Shepherd’s Fold the specified class of the poor, it was a matter of legislative discretion to determine how the expenses of these children should be provided for. So, too, we think McLean County v. Humphreys, 104 Ill. 378, relied upon by the majority opinion, supports our view. In that case there was a statute making it the duty of the county court to commit infant females of a designated class to the industrial school, and charging the county with the expense of their maintenance. Hence the question of the power of a county or municipality to. donate to a private charity was not involved. The case of Wisconsin Industrial School for Girls v. Clark County, 103 Wis. 651, sustained the constitutionality of a statute providing- for the commitment of infants of a certain class to industrial schools, and charges the counties from which the commitments are made with the expense thereof.

In all these cases the courts recognized that a simple gift of the money to the institutions would have come within the constitutional prohibition, whether the money was regarded as State, city, or county money.

In construing the provision of the Constitution under consideration, this court has held that a municipal corporation cannot assist in the building of a courthouse for the county to be located within its limits. Russell v. Tate, 52 Ark. 541. Neither do we think that the case of Cumnock v. Little Rock, 154 Ark. 471, lends any support to the majority opinion. In that case it was said that municipal corporations have only the powers expressly conferred by statute, and such as are necessarily incident to those expressly granted, or essential to the declared objects and purposes of the corporation. Hence we held that, under the section of the statute relating to municipal corporations commonly known as the general welfare clause, the common council of the city had the power to provide by ordinance for the erection 'and maintenance of a public hospital by said city. This statutory provision, in our opinion, has no reference to or connection with private charitable hospitals which have been erected or established in a city by any private corporation, society, or voluntary association.

It is conceded that there is no express power in the statute conferred upon a city to make donations or gifts gratuities to private hospitals, and it is equally clear to our minds that no such power is essential to the existence and wellbeing of a city. If once the principle is adopted that a city may raise money by taxation for private purposes, or bestow money raised by taxation gratuitously, it will inevitably follow that municipal corporations might by insensible degrees increase their donations to various charitable objects until all the people of the city must bend their backs to the burden of taxation, to such an extent that poor people, or those of moderate means, may become themselves in danger of being paupers. While the charity under consideration in this case is a wise and beneficent one, we do not think that the ordinance under consideration can be regarded as the proper exercise or application of the implied police powers of the city.

Our view on this branch of the case is well expressed in St. Mary’s Industrial School v. Brown, 45 Md. 310. In that case the court said: “We have carefully examined all the statutes to which we have been referred, and all others in any manner relating to the subjects under consideration, and we have utterly failed to discover any express power, or any by fair implication, by which the appropriations to the appellants, in the manner in which they have been made, can be sustained. They are made without terms or conditions. The institutions could receive the money thus appropriated, and the day after, in the exercise of the powers completely in their control, discharge every inmate received from the city. We speak not of what would likely be done, but of the power to do. The city council, in making these appropriations, entirely abdicate all discretion over the subject of their application. They become therefore mere donations. Who shall or who shall not be the objects of the charity, the .city retains no power to determine. Whether the inmates really belong to the pauper class,- — whether they be really objects of municipal care and protection — are questions that the city authorities do not determine, and have no means -of determining. It is all left to the discretion of -those who manage the institutions, and they, as we -have -shown, are not municipal agents, nor subject to any -control or accountability as to the use and -application of the money. It is certain, we suppose, -that the city council could have no power to make appropriations to these institutions -simply as such, nor because merely of the very humane and laudable -objects and purposes for which, they were created by their founders and promoters; it is only because of the actual services and benefits rendered the city that any claim, could be urged for their support from the city treasury. And, if this is so, what guarantee has the city that services or benefits will accrue, commensurate with -the appropriations that are made? The same principle that would sustain these appropriations would equally sustain appropriations to every private school and private charity in the city. And once concede the power to make them, and it will be in viain to invoke the courts to exercise a discretion as to any limit in the amount or extent of them.

“That the city has ample power delegated to it, and that it is a duty, to provide for the foundlings, the insane, the indigent, infirm and helpless, and for the correction of -the vicious and vagrant portions of its population, is beyond all question; but whatever provisions may be made must be under the control and subject to the supervision of municipal authority.” See also Hitchcock v. St. Louis, 49 Mo. 484.

Municipal corporations hold their money for their inhabitants to be expended for legitimate corporate purposes. The right of taxation by such corporations extends only to raising money for public purposes and uses. There is no definition of a public purpose or use which -can include the maintenance and support of a private charitable -institution by -the donation of money levied and collected by taxation. It is one thing for a city to provide itself with a hospital or the like institution to care -for the poor and the sick, and quite another to make gifts to'a-private institution for that purpose. The former is a public purpose, and is not prohibited by the Constitution; the latter is a private purpose, and falls within the ban of the clause of the Constitution of 1874 quoted -above.

The Fort Smith Federated Welfare Association is a private institution not under the control of the city and having no legalvconnection with it. It will exist only during the pleasure and for the purpose of its members. If the money collected by taxes may be given to it, it may also be donated to any other private corporation or person.

Therefore we respectfully dissent.