text:
    Harris v. State.
    Opinion delivered July 5, 1926.
    1. Intoxicating liquors — sufficiency of evidence. — In a prosecution for manufacturing and being interested in the manufacture, of intoxicating liquors, evidence held to sustain conviction.
    2. Witnesses — -exclusion of impeaching testimony. — Where, in a prosecution for manufacturing intoxicating liquor, a State’s witness testified to having seen accused at a still at a certain time; and a .witness for accused testified to having seen the State’s witness at another place at the time in question, exclusion of the testimony of two witnesses corroborating accused’s witness was reversible error.
    3. Criminal law — putting witness under the rule. — Whether any or all of the witnesses shall be put under the rule is within the trial court’s discretion, under Crawford & Moses’ Dig., § 4191.
    4. Criminal law — putting witnesses under rule. — A wider' discretion is allowed the trial court in relaxing the rule when it- has been ordered than in excluding testimony when the rule has been violated.
    5. Criminal law — putting witnesses under the rule. — Where counsel for accused did not know until a few minutes before offering testimony that witnesses .would testify to certain facts,' and for. that reason they had not -been called as witnesses and put under the rule, refusal to permit them to testify was an abuse of discretion, where they were offered before the close of the testimony.'
    6. Criminal law- — putting witnesses under the rule. — The court, after placing the witnesses under the rule, may enforce its order by directing the witnesses to retire, -may compel retirement by ejection, or fine for contempt any witness evading or disobeying the order.
    7. Criminal law — comment of counsel on conduct of witness.— Counsel of opposing side may comment on the failure of a witness to obey the rule as affecting his credibility.

      Appeal from Jefferson Circuit Court; T. G..Parham, Judge;
    reversed.

      Tóney S Smith, for appellant.

      H. W. Applegate, Attorney General, and; J. S.. Abercrombie, Assistant, for appellee.
   Smith, J.

Appellant was tried under an indictment charging him with manufacturing and being interested' in the manufacture of intoxicating liquors, was convicted, and has appealed.

A still had been located, and officers were watching it to learn who were operating it. Officers Vick and McBurnett, accompanied by two citizens, crept up to the. still and saw two men operating it. .Vick testified that he - identified both men, .one being, appellant, Arthur Harris, the other a man named Bob Sykes.' .The.posse had’surrounded the. still, and ordered-the men found operating it to throw up their hands,- but, instead of submitting' to arrest, they ran .away. A.-copper still., with a charcoal burner was .found, and .four.or five 'barrels of mash,-and' about five gallons of whiskey, had been run.-

Without setting out the testimony, of the officers further, it maybe said that their, testimony showed very conclusively that two men were found making whiskey, and the principal question of .fact in the. case is the identity of these men. Vick was. pqsitive in his identification of both appellant and. Sykes, and the testimony of the other members of the .posse is. more or less cprroborative of the testimony, of Vick. There is therefore no. question about the legal sufficiency, of the evidence to sustain the verdict of the jury, finding appellant guilty as charged. It appears, however, that Sykes had been previously tried, and acquitted; and appellant denied that he was seen at the still He also denied that he knew anything about the still or that he had ever seen it. The still was found about three quarters of a mile from appellant’s home.

A witness named Stone testified that, prior to the time the still was raided by the officers, he had lost a hog, and was looking for it in the woods, when he came upon the still, which was in full operation, and that he recognized appellant as one of the men operating it. Stone found between twenty and thirty gallons of whiskey in kegs and bottles and about seven or eight barrels of mash. He testified that the men in charge of the still ran away, after which witness got in his car and went to a schoolhouse, and from there he went'to Pine Bluff, where he told the officers what he had seen.

Appellant offered testimony to the effect that, on the day the officers raided the still, he was' at home working in his field.

A boy named Troy Tucker testified that he knew the afternoon when the witness Stone claimed to have been •in the woods and to have seen appellant at the still, and that Stone came to the school in the afternoon before the school was dismissed for the day. This witness had not been subpoenaed in the case, and was-in attendance on the trial just to hear it, as he knew the parties. As soon as the witness Tucker had thus testified the following proceedings were had: “Mr. Toney: Call Miss Jacks. If the court please, I find out there are two girls-that, were going to that school — (interrupted). Mr. Brockman: They have been in the courtroom all day. The Court: They, have been here all day. You may .let the record show, Mr. May, that the defendant offered to use. these witnesses and the court denies them the right to testify; save his exceptions. Mr. Toney: I would like to state to the court what — (interrupted). The Court: Don’t state that in the presence of the jury. Preserve your record outside. I will give you a chance to do that later on.’’

The trial proceeded, and another witness testified in support of appellant’s defense, after which it is recited that the following proceedings were had: “The following proceeding was had in the court’s private chamber, out of the presence and hearing of the jury: The Court: Let the record show that the witness, Miss Helen Jacks, that the defendant offered to prove by Miss Helen Jacks and Miss Gladys Hunt that they were going to the school in question; that on Thursday they saw the witness-Stone at the schoolhouse, Thursday afternoon at three o’clock, the same afternoon that it is claimed that he (Stone) saw these boys in the woods. That these witnesses were not sworn along with the others, and were not pnt under the rule, and had been sitting in the courtroom and were not summoned as witnesses in the case; that they had been sitting in the courtroom listening to all the testimony up until that time, and that the court refused to permit them to testify, to which action of the court the defendant at the time objected, and asked to save his exceptions. Counsel for defendant did not know until a few minutes before he offered these girls as witnesses that they went to this said school in question. Let the record show further that, at the time of offering these parties as witnesses, counsel did not state to the court that they had just found out that they were in possession of this information. Mr. Toney: I want to offer our instruction number ‘A,’ and ask that the court give it to the jury along with the other instructions. The Court: It is refused. Mr. Toney: Note our exceptions, and, your Honor, since you refuse this instruction, we ask to be allowed to introduce additional testimony. The Court: That request will be granted. You may do that. This concludes the proceedings had in chambers out of hearing of the jury. ’ ’

Thereafter Bob Sykes testified as a witness in appellant’s behalf, as did also Claud Pledger, and officer MlcBurnett, who had previously testified, was recalled for further examination.

After the conclusion, of this testimony the court proceeded to instruct the jury, and, while exceptions were saved to the instructions given, no error is pointed out in them, and we find none.

Appellant asked only one instruction, it being to the effect that testimony tending to show that appellant had been seen operating a still in July, 1925, could be considered by the jury only as “ a circumstance tending to show that appellant was in the whiskey business. ’ ’ The indictment under which appellant was convicted charged that on the 4th day of December, 1925, he manufactured and was interested in the manufacture of intoxicating liquors.

The instruction requested by appellant was properly refused. - The date referred to in the instruction was within three years of the date of the return of the indictment,-and the venue was the same. In other words, the testimony was to the effect that appellant had been seen on two different occasions operating, the same still, and the State had the right, as it evidently elected to do, to use testimony which would have shown two separate offenses to secure a single conviction. The testimony concerning the prior offense was admissible therefore to show that appellant was guilty of the offense charged, as a conviction could have been had if it were shown that, at any time within three years of the date of the indictment, appellant had-manufactured or been interested in the manufacture of intoxicating liquors. It is true the jury might have believed that the officers who raided the still were mistaken in their identification of appellant as one of the'men' seen at the still, and would, no doubt, have done so had they believed the testimony tending to prove an alibi for appellant, and may, in fact, have found him guilty of making liquor on the prior occasion, but the jury, had the right to do this if they found appellant had made liquor • on either occasion, both occasions being within three years of the date of'the indictment. Turner v. State, 130 Ark. 48, 196 S. W. 477.

We are of the opinion, however, that the court was in error in excluding the testimony of the two young ladies'-. • Their testimony would have contradicted that of the witness Stone, and it may be that the conviction was based upon the testimony of Stone, and not upon that of the officers who raided the still. As we have shown, it could have been, and for this reason no error was committed in refusing to give the only instruction which appellant requested.' The witness Tucker w,as a pupil at the school, and testified that Stone came to the school before it was out. This testimony tended to contradict that' of -Stone, and the testimony of the two young ladies who were also pupils at the school would have been corroborative of that of young Tucker. The testimony was therefore relevant and material, and might have been of great value to appellant. The testimony of the young ladies was not excluded because it was irrelevant and immaterial, but because the rule had been ordered on the witnesses, and the young ladies had not been called and sworn and placed under the rule along with the other witr nesses in the case.

Counsel for appellant stated, when he offered to call the girls as witnesses, that he did not know, until a few minutes before he offered the girls'as witnesses, that they were in attendance upon the school in question. The court did not hear any testimony as to when this information was first acquired by counsel, and the statement of counsel therefore stands unchallenged. "When these witnesses were first called, counsel for appellant undertook to make a statement to the court, but was interrupted by the court and told that a chance to do so would be given later. The court, in excluding this testimony, had the record to show “that at the time of offering these parties as witnesses counsel did not state to the court that they had just found out that they were in possession of this information.” But, as has been shown, the court had interrupted counsel with the statement that a chance would be given later. Moreover, it appears that, when this chance was later given, it was not then too late to permit these witnesses to testify. The case had not then been closed. In fact, as we have already shown,’ other witnesses were thereafter called and permitted to testify.

By § 4191, C. & M. Digest, it is provided that “if either party require it, the judge may exclude from the court room any witness of the adverse party not at the time under examination, so that he may not hear the testimony of the other witnesses.”

It has been held that whether any or all the witnesses shall be’put under this rule is a matter within the discretion of the court. Oakes v. State, 135 Ark. 221, 205 S. W. 305; Marshall v. State, 101 Ark. 155, 141 S. W. 755; St. Louis, I. M. & S. Ry. Co. v. Pate, 90 Ark. 135, 118 S. W. 260.

Notwithstanding the discretion which it has been held that the court has in the enforcement and the relaxation of the rule, this discretion is not beyond reviéw, and we think an abuse of discretion was shown in excluding the testimony of the young ladies.

The. court may order the rule, and may enforce it by ordering the witnesses to retire, and may compel their retirement by ejecting them from the court room, if it should be necessary so to do, or may fine for contempt any witness who had returned or had otherwise evaded or disobeyed the order of the court. It would also be permissible for counsel against whose side the witness had testified to comment upon the failure of the witness to obey the rule as a circumstance affecting his credibility.

In the case of Pleasant v. State, 15 Ark. 650, a witness for the State named Landers had, along with the other witnesses in the case, been put under the rule and admonished not to talk with the other witnesses in the case. Landers was seen conversing, with Fulmer, the husband of the prosecuting witness, who was alleged to have been raped, after this prosecuting witness had testified. After stating that there was á presumption — the contrary not appearing from the bill of exceptions — that the court had ascertained that no conversation had occurred between the witness and the husband of the prosecutrix prejudicial to the prisoner, the court said: “But, if this were not so — even if Landers had remained in, or returned to, the courthouse, after he was put under the rule, and heard M!rs. Fulmer testify, this would not have been absolute cause to exclude him, but the court had the discretion to permit him to be examined, and his conduct would have gone to his credit.- The power of the court to exclude a witness for disobedience of the rule is rarely exercised in this country, but the witness is punishable with contempt. ”

In the case of Golden v. State, 19 Ark. 590, a.witness gave testimony which'the attorney for the defendant stated to the court- was a surprise, whereupon he asked that a witness who had not been sworn nor put under the rule be sworn as a witness. Counsel stated that this witness had not heard the testimony of the State’s witnesses, but the trial court refused to permit the defendant’s witness to he sworn. This was held to be error, and in so holding the court said: “The course formerly was to exclude witnesses who might disobey the rule and return into the court after they had been ordered out. But the practice in the American courts seems to be different. In this country the right of excluding witnesses for disobedience, though well established, is rarely exercised. The practice here is to punish the witness for contempt in case of disobedience.”

In the ease of Hellems v. State, 22 Ark. 207, the witnesses had been put under the rule, and, after both the State and the defendant had closed, the court permitted the State to introduce rebutting witnesses who had not been put under the rule, and an exception was saved- to this ruling. It was not shown whether these witnesses had heard the testimony of the other witnesses or not, but the court said-: “If they had, the court had the discretion to admit them, and this went to- their credibility, and not to their competency.”

In 14 Encyclopedia of Evidence, chapter “Witnesses, ’ ’ page 598, it is said: “The better rule seems to be'that a witness is not disqualified from testifying by reason only of his having disobeyed an order of exclusion, that his testimony ought not to be rejected and the party who called him deprived of his testimony where such party is himself without fault; but that such violation should only affect the witness’ credibility, or subject him to punishment for contempt.”

In the case of Smith v. State, 4 Lea (Tenn.) 428, the syllabus reads as follows: “In a criminal case involving the life of the "prisoner, a witness whose testimony has only been discovered a few moments before he is put on the stand, ought not to be excluded merely upon the ground that the defendant had joined the State in requiring that the witnesses be put under rule, where the testimony of the witness is material to the defense.”

In the case of Davis v. Byrd, 94 Ind. 525, it is said:

“We hold the true rule to be this: Where a party is without fault, and a witness disobeys an order directing a separation of witnesses, the party shall not be denied the right of having the witness testify, but the conduct of the witness may go'to the jury upon the question of his credibility. The modern authorities are overwhelmingly •in' favor of this doctrine. Mr. Bishop says: ‘ On the other hand, if the party was without fault, the judge had no right to punish his innocence by depriving him of his evidence, and ruin him at the will of a witness. The testimony should be admitted, subject to observation to the jury. Such is the law in principle. * * * Other judges, less mindfdl of these reasons, appear tó deem it within their discretion in all cases of disobedience to the order to reject the -witness.’ 1 Bishop Crirn. Proc., §§ 1191,1192. An-English author gives this statement of-the rule: ‘But i-t seems to be now settled, that the judge has no right to -reject the witness on this ground, however much his willful disobedience of the order may lessen the value of his evidence.’ 2 Taylor, Ev. 1210. The same doctrine is found in 2 Phillips, Ev. (5th Am. ed.) 744.” Among the numerous cases cited by the court as sustaining the rule announced is our own case of Pleasant v. State, supra.

In the case of Hubbard v. Hubbard, 7 Ore. 42, a syllabus reads as follows: “It is error to reject the testimony of a witness on the ground that he was present in the court room, in violation of an order of the court excluding the witnesses during the trial, unless it appears that the party calling him was in complicity with him. The witness, however, may be punished for contempt for violation of such order.”

A wider discretion is allowed the trial court in relaxing the rule, when it has been ordered, than is possessed in excluding testimony when the rule has been violated. This is recognized in the opinion of the Supreme Court of the United States in the case of Holder v. U. S., 150 U. S. 91. That case was appealed from the Circuit Court of the United States for the Western District of Arkansas. There the witnesses had been placed under the rule, and an uncle of the man the defendantwas charged withhaving murdered had violated it. When this witness was called, it was then objected that he had heard the testimony of the other witnesses, in disregard of the direction of the court in that behalf, and the objection was overruled and the witness was allowed to testify. Speaking through Chief Justice Fuller, the court said: “If-a witness disobeys the order of withdrawal, while he may be proceeded against for contempt and his testimony is open to' comment to the jury by reason of his conduct, he -is not thereby disqualified, and the weight of authority is that he cannot be excluded on that ground merely, although the right to exclude under particular circumstances may be supported as within the sound discretion of the trial court.” After citing numerous cases the court- proceeded to say: “Clearly, the action of the court in.admitting the testimony will not ordinarily be open to revision.”

Here the statement of counsel that he had just conie into possession of the information as to the young ladies who had not been called and sworn and put under the rulé was unchallenged. This information was communicated to the court before the taking of the testimony was concluded. Appellant must have known that the.officers would testify concerning what they saw and found when they raided the still, for Sykes had been previ,ously tried upon that charge and acquitted, and, if it be said that .the defendant should have been prepared to meet any issue relating to this occasion, and should have had the witnesses supporting his defense against that charge present and under the rule, it may be answered that the witness Stone testified to another and different violation of the law — an act permissible to be shown — yet one which might have occasioned surprise.

We conclude therefore that the court should have permitted the young ladies to be called as.witnesses, and,; for the error in refusing to permit this to be done,- the judgment of the -court below will be reversed, and the cause remanded for a new trial.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    Board of Directors of Gould Special School District v. Holdtorff.
    Opinion delivered July 5, 1926.
    1. Schools and school districts — transportation op children.— Crawford & Moses’ Dig., § 9060, empowering school districts to provide transportation for schoolchildren, does not authorize a contract for transportation of the children of one district to the schools of another district, or to use the school funds to pay tuition in the school of another district.
    2. Schools and school districts — ratification op unauthorized contract. — A contract of a school district for the transportation of pupils to the schools of another district and for payment of their tuition therein, being unauthorized under Crawford & Moses’ Dig., § 9060, cannot be ratified by performance.
    Appeal from Lincoln Chancery Court; II. R. Lucas, Chancellor;
    affirmed.

      Mike Danaher and Palmer Danaher, for appellant.

      W. B. Sorrels, for appellee.
   Smith, J.

In this case appellee, who is a citizen and taxpayer residing in Gould Special School District and a patron of the public school of that district, brought suit against the directors of the school district to enjoin them from paying T. H. Free the sum of $50 per month, which the said school district had contracted to pay Free for transporting children residing in the Gould Special School District to a school in another district. There was a prayer also for the recovery of money already paid under the contract.

W. E. Massey was the only witness who testified in the case, and he was one of the directors of the Gould Special School District, and his testimony was to the following effect: At a meeting of the school board on May 16, 1923, a resolution was passed authorizing a contract to be made with T. H. Free, who was also a school director, to transport certain children residing in the Gould Special School District to the Grady School District. The resolution recited that Free’s children were sufficiently advanced to study music and expression, and that these subjects were not taught in the Gould Special School District. Out of this allowance of $50 per month Free was to pay the tuition of his own children and that of any and all other children who might be transported to and attend the Grady school. '

The contract was performed for that school year, and on May 5, 1924, by a second resolution of the board of directors, the contract was renewed for another year. The suit was brought to enjoin the payment of money under this contract and to recover what had been paid under both contracts.

Mr. Massey testified that Free resided in the western end of the Gould Special (School District, and that neighborhood was eight miles from school, and that, for a number of years, a school had been taught in Free’s neighborhood at a cost to the district of $75 per month for teacher’s salary and an expense of from five to ten dollars per month for other purposes, and the contract with Free was regarded as advantageous to the school district because it enabled the district to close that school and to effect a saving of about $35 per month by so doing. The school at Gould was crowded, and, by sending the children in the Free neighborhood to Grady, the congested condition at the Gould school was relieved to that extent. The Free neighborhood was eight miles from Gould, and the same distance from Grady, and this, distance was so great that the children, in that neighborhood could not attend either school unless transportation were furnished. When the contract was first entered into there were seven or eight children transported under the contract, but this number had decreased until there were only four children of Mr. Free to be transported.

The court enjoined the further performance of the contract, and rendered judgment against Free for the sums paid under the contract, and this appeal is from that decree.

The case of Hendrix v. Morris, 127 Ark. 222, 191 S. W. 949, was a suit by a taxpayer in the England Special School District to enjoin the payment of the operating expenses of an automobile to carry schoolchildren to the school. We there reviewed act 116 of the Public Acts of 1911, page 81, § 15 of which provides “that the board of directors shall have power to provide such transportation for the pupils of the district as the board may deem advisable, and may purchase, rent or hire conveyances for this purpose, or the board of directors may enter into contracts with others for transportation service,” 'etc.,' and that “the cost of this transportation shall be paid out of the school funds to the credit of the consolidated school district. ”

The England Special School District was not a consolidated school district, and it was held, for that reason, that the provisions of the statute quoted did not apply, and, inasmuch as there was no statutory authority for transporting the children to school at the expense of the school district, the contract to that effect was enjoined.

' In reaching that conclusion it was said: ‘ ‘ Cases on this subject are collected in a note to the case of Shanklin v. Boyd, 38 L. R. A. (N. S.) 710. In the case cited the Supreme Court of Kentucky held that a vote of the tax ‘for local purposes’ did not authorize the school directors, who were operating under a school law not materially different from our own, as far as the powers of the directors are concerned, to expend money for the purpose of conveying children to the schools of the district. The court expressly stated that it did not' hold the Legislature might not provide for the levying of a tax for .this purpose, but that it did hold that the revenues could not be so employed in the absence of a statute authorizing it. We think the reasoning of that case is applicable to the facts of this. The Legislature has enumerated the purposes for' which the revenues may be spent, and, as no authority is given to expend money in the transportation of children, we must hold that ho such authority exists. ”

After the opinion in that case was rendered, the General Assembly, at its regular 1919 session, passed an act. entitled, “An act to authorize special, consolidated, and common school districts to expend public school revenues for transportation facilities, and for other purposes.”

Section 1 -of this act (which appears as § 9060, O. & M.'Digest) reads as follows: ‘.‘The board of directors of all special school districts in cities and towns, in all con.'solidate’d districts, in all common districts, and in all rural special, or single school districts; heretofore created or which may be hereafter created, he and- they, are-authorized and empowered to purchase, or otherwise provide when desired, means for transporting pupils to and from school, and to this end they may hire or purchase such school wagons, or busses, or other means of transportation, and hire persons to operate them, or make such other, .arrangements as may be-deemed necessary for carrying out the purposes of this act; and said board are' empowered to buy, lease or build teacherages or homes and to select suitable sites .for .same for the use of. the. teachers- in the regular employ, of the district, in . such.way and under, such regulations as they may deem •proper, and to pay for all such property or services out of any funds- that may-accrue to the district.” "

By this act the power was conferred on all school districts — which, prior thereto, only consolidated districts possessed — “to purchase, or otherwise provide when desired, means for- transporting, pupils- to - and from school,” and to that end conferred power on the directors to hire or purchase school wagons, or bu.sses or other means of transportation, and to hire persons to operate them, or to make snch other arrangements,, as ¡may be deemed necessary, to Carry out the. purposes .of the act.

But it is quite obvious.that the legislative .purpose was to provide means for the transportation: of. the children of any particular .district to the schools of that district.’ The act says nothing, about transporting the children of one district, to the schools of another, district, nor is any authority conferred.to use the school funds to pay tuition, in the. schools .of another.district.

’ No authority .was conferred by the act of .1919 to make such a contract as was made with Free, nor does such authority otherwise exist, and, as the directors, were without authority to make the contract, it has not been ratified by its performance. First National Bank of Waldron v. Whisenhunt, 94 Ark. 583, 127 S. W. 968.

Tbe court below was correct therefore in enjoining the further performance of the contract ánd in rendering judgment for the recovery of the money paid, and the decree to that effect is affirmed.


author: McCulloch, C. J.

text:
    Spohn v. State.
    Opinion delivered July 12, 1926.
    1. Homicide — sufficiency of evidence. — Evidence held sufficient to sustain a conviction of an assault with intent to kill.
    2. Criminal law — improper testimony — withdrawal.—The prosecuting attorney’s disclaimer of intent to elicit a statement from a witness, made by him without being asked, was in effect a withdrawal thereof.
    3. Criminal law — motion to strike testimony. — A motion to “strike all this testimony, the defendant having objected and the court not having ruled,” held insufficient to identify- the testimony objected to.
    4. Homicide — evidence.—In a trial for assault with intent to kill, the record of divorce proceedings between defendant’s wife and the prosecuting witness held inadmissible.
    Appeal from Benton Circuit Court; W. A. Dickson, Judge;
    affirmed.

      Williams & Williams, for appellant.

      H. W. Applegate, Attorney General, and John L. Carter, Assistant, for appellee.
   McCulloch, C. J.

Appellant was convicted of the crime of assault with intent to kill, committed upon the person of Henry Birks. Appellant admitted that he shot Birks with a gun and inflicted a severe wound upon the latter, but he claims that he acted in necessary self-defense. The testimony was conflicting, but was legally sufficient to sustain the verdict finding appellant -guilty.

Appellant is the husband of Birks’ divorced wife, and the shooting occurred at appellant’s home in the city of -Siloam Springs. There were two children of the marriage between Birks and his former wife, and, after the divorce, these children remained in the possession of Birks a portion of the time, and were living with Birks at the time the shooting occurred. The children had been living with appellant’s wife for some time prior to the shooting, and, on the morning that the shooting-occurred, she and Birks met away from appellant’s home and had a discussion about the amount Birks was to pay her for boarding the children. After, some discussion, they went back to appellant’s home to procure an article of clothing (shirt) of one of the children, and, while Birks was out in front of the house, the shooting occurred. Birks testified that, when he and his former wife reached the house of appellant, the woman went into the house to get the shirt, and brought it out and gave it to him, and that, just as he was rolling it up into a package and putting it into his pocket, appellant came out of the house with a shotgun and, without warning, fired upon him.

The contention of appellant is that Birks, when he came up to the house, made threats against him, and finally attacked him with a pocket-knife, and that he fired the shot in self-defense.

Error of the court is assigned in admitting incompetent testimony. It is contended that the court erroneously permitted Birks and other witnesses to testify concerning improper conduct between appellant and his wife before her divorce from Birks, and that they were permitted to testify concerning improper conduct after the divorce from Birks and before the marriage with appellant. The record shows that Birks testified, without objection from appellant, concerning the latter’s conduct with the woman prior to the divorce and between the time of divorce and her intermarriage with appellant. Birks testified that appellant stayed around his house a great deal of the time while he and the woman were living together as husband and wife, and that appellant and the woman went off to Missouri and lived together prior to her divorce from the witness. There was no objection made to this testimony — the only objection being made was to the statement of the witness concerning a conversation with the woman’s father, Duncan. The statement came from the witness without a question being asked concerning the matter, and the prosecuting attorney disclaimed any intention to draw out this statement from the witness. There was, in effect, a withdrawal of that statement.

At the conclusion of the cross-examination of appellant, his attorneys interposed an objection to certain questions asked on cross-examination, and, according to the recitals of the record, moved the court to £ strike all this testimony, the defendant having objected and the court not having ruled.” The particular testimony referred to in the motion was not specified, and this was not a sufficient identification of the testimony referred to in the motion for a new trial.

Error of the court is also assigned in refusing to permit appellant to introduce in evidence the record of the divorce proceedings between appellant’s wife and Birks. We are unable to discover any theory upon which this testimony would have been competent or relevant. The witnesses referred to the procurement of the divorce by appellant’s wife from Birks, but the record of the divorce proceedings was purely collateral, and the contents threw no light on the question of appellant’s guilt or innocence.

These are the only assignments of error, and our conclusion is that they are unfounded.

Judgment affirmed.


text:
    People's Savings Bank & Trust Company v. Howson.
    Opinion delivered July 12, 1926.
    1. Appeal and error — acceptance of inconsistent benefits by appellant. — By causing a sale of mortgaged land under foreclosure decree and purchasing it, the mortgagee did not waive his right of appeal from that part of the decree which held that the wife who signed the mortgage note with her husband was not personally liable.
    2. Appeal and error — conclusiveness of chancellor’s finding.— The Supreme Court is bound by the chancellor’s findings of fact unless they are clearly against the preponderance of the evidence.
    3. Husband and wife — fraud and misrepresentation — evidence.— Evidence held to support finding that a mortgagee was not guilty of fraud or misrepresentation inducing a wife to sign her husband’s note and mortgage.
    4. Mortgagors — mistake in signing. — One who signed her husband’s note and mortgage, without fraud or misrepresentation by the mortgagee, will not be relieved from personal liability because she thought she was merely releasing her dower in the mortgaged land.
    Appeal from Jefferson Chancery Court; H. B. Lucas, Chancellor;
    reversed.

      Bridges & McGaughey, for appellant.

      B. W. Wilson and Danaher & Danaher, for appellee.
   McCulloch, C. J.

Appellee is a married woman, and her husband, L. Gr. Howson, was the owner of a farm in Jefferson County, and mortgaged the same to. appellant to. secure a note in .the sum of $20,000, jointly executed by himself and appellee. The mortgage contained a recital that “the said L. Gr. Howson is. justly indebted to the People’s. Savings Bank & Trust Company, evidenced by his promissory note of even date herewith.” The mortgage also contained a recital that it was to secure additional advances in the sum of $5,000, to be evidenced by notes, but later, when the advances were made, two notes, one for $3,000 and the other for $2,000, were signed by L. Gr. Howson alone. This mortgage was executed subject to a prior one held by the Maxwell Investment Company. This action was in.stitilted to foreclose the mortgages on the land, default having been made in the payment of the interest, which, under the acceleration clause contained in the mortgage, made the principal and interest both due and payable, and appellant in its complaint prayed for a personal decree against both of the defendants, L. G. Howson and the appellee. L. Gr. Howson made no defense, but appellee answered, alleging that she signed the note under a previous arrangement with appellant that she would not be bound for the debt and would sign only for the purpose of relinquishing her dower in the land, and that she was misled by the statements of appellant’s agent, which induced her to sign the note under the belief that she was merely relinquishing her right of dower. A decree by default was rendered against L. G. Howson for the foreclosure of the mortgage, and the court heard the cause upon the issue between appellant and appellee as to her personal liability on the note, and rendered a decree in favor, of appellee.

Since the transcript was lodged here, counsel for appellee have filed a motion to dismiss the appeal on the ground that appellant waived its right of appeal from the decree in favor of appellee by causing a sale to be-made by the commissioner under the foreclosure decree and purchasing the land at the sale. The contention- is that this constituted an acceptance of benefits under the decree and waived the right to prosecute the appeal. That question, however, is decided against the contention of appellee in the recent case of McCown v. Nicks, ante p. 260.

The cause. was heard on oral testimony adduced before the court, and in the decree the- court recited a finding that appellee signed the note, .and- that “her signature thereon was not procured by any fraudulent representations on the part of the People’s Savings Bank & Trust Company or its officers or agents, or through any ’mistake on behalf of the People’s Savings Bank & Trust Company, its officers or agents, and that defendant, Charlie May Howson, signed said note believing that it was necessary to do so in order to release her dower rights in the land conveyed in the deed of trust executed by L. G-. Howson and herself on that date, and believing that she would not be individually liable thereon; that there ivas no meeting of the minds of the parties at the time of the entering into the purported contract evidenced by said note.”

It is undisputed that appellee signed the mortgage and the note in the suit, and that she was aware at the time that she signed the note as well as the mortgage. There is, however, a conflict in the testimony as to other features of the transaction. L. Gr. Howson testified that, in prior transactions with appellant as a banking institution, his wife had signed his notes with him for borrowed money, and that in most instances there were no other securities given, but he stated, in substance, that, when he negotiated with Mr. Hightower, appellant’s agent, for borrowing this money, he declined to have his wife sign the note,' and made an arrangement with High-tower that they would make the loan on the sole security of a mortgage to be executed on his land. Appellee testified that she had declined signing any more notes for her husband, and was informed by him, before they went to the bank to sign up the papers, that she was not to make herself liable, but was merely to sign the mortgage for the purpose of relinquishing her dower in the mortgaged land. Hightower testified that he made no arrangement to lend the money on the land as security without appellee signing the note as she had done theretofore, but that, on the contrary, the board of directors of appellant bank had required him to exact as security for the loan a mortgage on the land and the signature of appellee. This was also proved by other officers of the bank. There is therefore a sharp conflict between the testimony of L. GK Howson and of Hightower with respect to the previous arrangements for the loan. After the loan had been arranged for, it is undisputed that appellee and her husband together went to the bank to sign the papers, and there is practically no conflict as to what occurred there. Mr. Hightower was handling the matter for appellant bank, and had the papers ready for execution when appellee and her husband went in. It appears that she stood on the outside while her husband went in and signed the note and the mortgage, without anything being said. The husband then walked to one side, and appellee either went up to the desk, or the papers were handed to her at the window, and she signed both-the note and the mortgage. She testified as to that herself, and said she knew at the time that she was signing the note. ' She testified that nothing was said between her and Hightower at the time the papers were signed. Hightower testified that, when the papers were handed to appellee to sign, she manifested some hesitation, and he said to her, “Go aheadGarrett (referring to her husband) will come out all right this year.” Appellee did not testify with reference to this remark, but, on the contrary, said that nothing was said by Hightower to induce her to sign the note.

Appellant objected to the testimony of L. G. How-son on account of his being the husband of appellee, but the court admitted the testimony as competent. We find it unnecessary to determine whether or not the husband’s testimony was competent on the ground that he was acting as appellee’s agent. We are disposing of the appeal on grounds which render a decision of that question immaterial.

There is an express finding by the chancery court that none of appellant’s agents or officers were guilty of any fraud or misrepresentation or that appellant did anything to mislead appellee or to induce her to sign the note upon an erroneous impression as to its legal effect. We are bound by that finding,.unless it is against the preponderance of the evidence, and, upon careful consideration of the evidence, we are convinced that the court’s finding was not contrary to the preponderance of the evidence. There is not the slightest suggestion of fraud of misrepresentation of facts on the part of appellant’s agents found anywhere in the testimony of appellee herself.' If we treat the testimony of L. G. Howson as competent, it is in direct conflict with that, of Hightower, who is corroborated by the testimony of the president of the bank, who related conversations with L. G. Howson long afterwards in regard to the payment of the. note, in which he failed to mention the fact that his wife w.as not liable, and this under circumstances when it would seem probable that he would have mentioned that fact if he was laboring under the impression that his wife, was not responsible.

Counsel for appellee insist that the recitals of the mortgage itself tend to show that it was not intended for appellee, to sign the note, for the. recital of the mortgage was that it .was to secure a note, executed by L. G. Howson. Now, this circumstance would be of some probative force if there were a dispute as. to whether or not appellee signed the note, but it is undisputed that she did sign the note, and did so knowingly. .She does, not contend-that she was misled by any recital in the mortgage or by any statement or remark made by Hightower or any other agent of appellant. The court found that there was no mistake on the part of the agents of the bank as to the form the transaction was to .take or the intention in procuring the note of appellee as well as that of her husband, and the fact that there is a conflicting recital in the mortgage to the effect that the secured note was to be that of L. G. Howson alone is unimportant. .

Another circumstamce .urged by appellee’s counsel is that appellee was not called on. to sign. the.notes subsequently executed for the additional advances. This is explained by witnesses for the bank, who testified to the effect that those were short-time notes, to be paid out of the, crop for that year, and it was not considered important enough to insist upon appellee signing the .notes.

Our conclusion is, as before stated, that the finding of the chancellor exonerating the agents of appellant from all of the charges of fraud and misrepresentation concerning the effect of the mortgage is sustained by the evidence. That being true, we think that the court erred, notwithstanding this finding, in rendering a decree in favor appellee on the ground that she was mistaken as to the legal effect of the note. Ignorance on the part of appellee as to the effect of the note affords no ground for relieving her from liability. There was no mutual mistake of the parties — none contended for — and the court expressly found that there was no mutual mistake. It is a principle of almost universal application that a mistake of one of the parties to a contract concerning its legal effect will not, in the absence of fraud or misrepresentation, afford grounds for relief against performance of the contract. Rector v. Collins, 46 Ark. 167; Maledon v. Leflore, 62 Ark. 387, 35 S. W. 1102; Colonial & U. S. Mortgage Co. v. Jeter, 71 Ark. 185, 71 S. W. 945; Hubbert v. Fagan, 99 Ark. 480, 138 S. W. 1001. In Colonial & U. S. Mortgage Co. v. Jeter, supra, this court quoted with approval the following from the decision of the Supreme Court of the United States in Upton v. Tribilcock, 91 U. S. 50: “It will not do for a man to enter into a contract and, when called upon to respond to its obligations, to say that he did not read it when he signed it or did not know what it contained. If this were permitted, contracts would not he worth the paper on which they are written. But such is not the law. A contractor must stand by the words of his contract, and, if he will not read what he signs, he alone is responsible for his omission. ’ ’

In the absencó of fraud or misrepresentation, we must follow the settled principles and hold that there is no relief merely because there was a misconception in the mind of one of the parties as to the legal effect of the contract.

The degree is therefore reversed, and the catise remanded with directions to render a decree against appellee in favor of appellant for the amount of the note and interest, after crediting the net proceeds of the sale of the land under the foreclosure.


text:
    Reeves v. Williams.
    Opinion delivered July 12, 1926.
    Bills and notes — indorsement in blank — evidence.—The indorser in -blank of a negotiable instrument may show by parol evidence that the indorsement was merely to pass the title, and not guaranty of payment, especially where the indorsement was ambiguous on its face..
    Appeal from Hot Spring Circuit Court; Jobes M. Smith, Special Judge;
    affirmed.

      S. B. Means, for appellant.

      John L. McClellan, for appellee.
   McCulloch, C. J.

Appellant instituted this action against appellee before a justice of the peace in Hot Spring County on four promissory notes, each for the sum of fifty dollars, it being alleged that appellee is liable as an indorser and guarantor. Each of the notes was executed by J. C. Owens to appellee, and by the latter indorsed in the following words: “Transferred on February 22 to second party to said T. W. Reeves. Tránsfer attached to instrument. (Signed) By F. M. Williams.” It is alleged in the complaint that demand had been made upon Owens for payment and that payment had been refused. Appellee answered, alleging that the notes in suit were secured by a chattel mortgage, executed by Owens to him; that he had sold the notes and mortgage to appellant, and that the assignment was made upon express agreement with appellant that it was solely for the purpose of passing title and without liability on the part of appellee as indorser.

On the trial of the cause on appeal to the circuit court, appellant testified concerning the purchase of the notes from appellee and the assignment of them, and denied that there was any ag’reement restricting the liability of appellee under his indorsement. Appellant also testified that he knew nothing about a chattel mortgage having been executed to secure the notes, and that it had never been delivered to him.

Appellee testified that he made the indorsements on the notes and also assigned the mortgage to appellee by indorsement thereon, and that this was done with the express understanding with appellant that he (appellee) had nothing more to do with the notes or mortgage, and that the indorsements were made merely to pass the title. The court submitted that issue to the jury, and the verdict was in favor of appellee. Appellant asked for a peremptory instruction, which the court refused, and the sole question presented on this appeal is whether the court erred in admitting appellee’s testimony about the oral agreement between him and appellant, and in giving the instruction submitting the issue to the jury.

The facts of the case seem to bring it within the decisions of this court in First National Bank v. Reiman, 93 Ark. 376, 125 S. W. 443, and Ellis v. First National Bank of Fordyce, 163 Ark. 471, 260 S. W. 714, holding that it is competent for an- indorser in blank of commercial paper to show that it was done merely to pass the title to the indorsee and not as á guaranty of payment. In addition to that, the indorsement in this instance was an ambiguous one, so as to let in proof of the actual intention of the parties. The indorsement is ambiguous on its face, and refers to the indorsement of another instrument which does not appear in the record. This is explained in his testimony to the effect that there was a chattel mortgage which he indorsed so as to pass the security to appellant.

We find no error in the record, and the judgment is therefore affirmed.


author: .McCulloch, C. J.

text:
    Nelson v. Hall (1). Dover v. Bickle (2).
    1. Pardon — requisites.—Under Acts 1903, p. 270, § 2 (Crawford & Moses’ Dig., §§ 3370-4), regulating the granting of pardons, a pardon granted without proof of publication of application being filed, and without recital that they were granted without application by an ’attorney or paid representative of the recipient of the pardon, held void.
    2. Pardon — reformation.—A pardon may not be reformed, both because it is a voluntary instrument and because it is executed in performance of a statutory power.
    3. Reformation of instruments — voluntary instrument — pardon. —The merits of the applicant are not a consideration justifying the reformation of a defective pardon, since a pardon is an act of grace on the part of the Governor.
    4. Reformation of instruments — exercise of statutory power.— An instrument imperfectly executed in performance of a statii- • tory power cannot be reformed, where the element of a contract is lacking.
    5. Habeas corpus — invalidity of pardon. — The invalidity of a pardon may be raised by habeas corpus proceedings wherein the pardonee asserts immunity from the judgment of conviction.
    6.- Pardon — effect of reprieve. — A convicted felon who has secured a reprieve is not exempt from arrest on the ground that the period of sentence had expired while he was out of the penitentiary, as a reprieve merely suspends the sentence.
    (1.) Appeal'from Union Chancery Court, Second Division; George M. LeCroy, Chancellor. (2). Appeal from Polk Chancery Court; C. E. Jolmson, Chancellor;
    No. 1 reversed; No. 2 affirmed.

      H. W. Applegate, Attorney General, and Brooks Hays, Assistant, for appellant.

      Gaughan- <& Biford, for appellee Hall.

      Norwood <& Alley, for appellee Dover.
   .McCulloch, C. J.

M. J. Dover was convicted of felony in the circuit court of Polk County, and the judgment of conviction was affirmed on appeal to this court. 165 Ark. 496, 265 S. W. 76. Before he began serving his term in the penitentiary under the affirmed judgment of conviction, the Governor issued a suspension, or reprieve, for a period of three months. Two other such suspensions were issued by the Governor, which extended beyond October 29,1925, and on that day S. B. McCall, president of the Senate, who was acting as Governor in the absence of the chief executive, issued a full and free pardon to Dover. ’ On the return of the Governor to the State he ordered the rearrest of Dover, which was accomplished by the sheriff of Polk County, and Dover instituted an action in the chancery court of that' county against the sheriff, praying for a writ of habeas corpus to the end that he might be released from custody, and the prayer of the complaint was that the instrument of writing purporting to be a full and free pardon issued to hirp be amended so as to incorporate a recital that the pardon “was granted by the Governor without application therefor being made to him by any attorney or paid representative of the person pardoned.” On the hearing of the cause the chancery court dismissed the complaint for want of equity, and an appeal has been duly prosecuted to this court.

W. H. Hall was convicted of felony in the Pulaski Circuit Court, and, on appeal to this court, the judgment of conviction was affirmed. 161 Ark. 453, 257 S. W. 61. He began serving his term in the penitentiary under the affirmed judgment, and continued to do so until October 28,1925, when the President of the Senate, as acting Governor, issued to him .a full and free pardon. The Governor, on his return to the State, ordered the rearrest of Hall, which was done, and the latter instituted an action in the chancery court of Union County to reform the pardon issued to him by the insertion of the words quoted above, as in the Dover case; .and there was also a prayer in the complaint that the sheriff of Union County and other officers of the State be enjoined from arresting Hall for the enforcement of the original judgment of conviction. On the hearing of the cause the court granted all of the relief prayed for in Hall’s complaint, and an appeal has been duly prosecuted to this court.

The two cases stand in the same attitude, and may therefore be disposed of in one opinion.

In the pardons granted to each of the parties the recital quoted above was omitted, and in each case the prayer of the complaint was that' the instrument be reformed so as to incorporate the same, the allegation in each complaint being that this recital was omitted by mistake. In each case it was proved and conceded that there was no publication of notice of the application for pardon, as required by § 2 of the act of 1903 (p. 270), Crawford & Moses’ Digest, § 3370. In each case it was proved that the acting Governor issued the pardon without solicitation or application made' by an attorney or paid representative of the pardonee. In Hall’s case he introduced as a witness Mr. McCall, President of the Senate, who testified that, in issuing the pardon, he followed the printed form which had always been used by former Governors; that he was not aware of the legal necessity for inserting the recital quoted above, but would have incorporated the same if his attention had been called to such necessity. In Dover’s case he asked for a continuance in order to procure the attendance of Mr. McCall as a witness to prove the same facts which had been proved by that witness in the ’ Hall case. If' the testimony of McCall was material, the pardonee was entitled to procure his attendance as a witness. Therefore the two cases, as we have already said, stand before us in the same attitude and with similar questions presented to us for determination.

Section 4 of the act of 1903, supra (Crawford & Moses’ Digest, § 3373), provides that the•“Governor, acting upon* his own motion, or being prompted thereto by the result of investigation made at his instance, shall have the right to grant a pardon in any case without the publication provided for herein; but all such pardons so granted by the Governor shall state on the face of the certificate thereof that the same was granted by the Governor without application therefor being made to him by an attorney or paid representative of the person pardoned.” It was decided by this court.in the recent case of Horton v. Gillespie, 170 Ark. 107, 279 S. W. 1020, that all of the provisions of the act of 1903, supra, are mandatory, and that a pardon issued by the chief executive without proof of publication of the notice of application having been filed, or unless the pardon contains the recitals sought to be incorporated in the instruments presented in these cases, is void. It was also held in that case that the question of validity or invalidity of the "pardon on account of noncompliance with the statute ‘ ‘ can be raised in a proceeding by habeas corpus where the pardonee asserts his immunity from the consequence of the judgment from which the pardon attempts to absolve him.” It is thus seen that the pardons issued to Dover and to Hall come squarely within the decision of this court in Horton v. Gillespie, and that, as they now'stand, they are each void, and the only question left undecided faith respect to these pardons is whether or not they can be reformed by decree of a court of chancery.

It seems clear that, in the application of settled principles of equity, there can be no reformation of a pardon. This is true for two reasons: There can be no reformation of a voluntary instrument executed without consideration, and there can be no reformation of the imperfect execution of a statutory power. Each of those principles has been clearly recognized in the decisions of this court. ' We have often held that a voluntary conveyance, executed as a mere gratuity and lacking in the elements of a contract, cannot be reformed. Smith v. Smith, 80 Ark. 458, 97 S. W. 439; Johnson v. Austin, 86 Ark. 446, 111 S. W. 455; Jackson v. Wolfe, 127 Ark. 54, 191 S. W. 938; Peters v. Priest, 134 Ark. 161, 203 S. W. 1042. It is contended, however, by learned counsel that á párdon is not a mere gratuity, but that it is, or should be, an instrument founded upon a lawful and sufficient consideration — namely, by the merits of the applicant for pardon. In other words, it is contended that, if the applicant is entitled to a pardon according to the circumstances of his particular case, his merits in this regard form a sufficient consideration for the act of clemency on the part' of the executive, and that the pardon is founded, upon a consideration. We cannot agree with counsel in this contention. A pardon hy the sovereign from the effects of conviction of crime has always been regarded as purely an act of grace. Chief Justice Marshall, in the ease of United States v. Wilson, 7 Pet. 160, defined a par-don-as “an act of grace proceeding from the power intrusted with the execution of the law.” This is the substance of every definition given of the exercise of the- pardoning power. The merits of the applicant. do mot in any sense afford a consideration to justify a reformation of the instrument to cure defects, nor do the circumstances of a particular case have the effect of introducing the element of contract into the execution of the instrument, but those circumstances merely appeal to the executive in determining whether or not clemency should be extended. After all, and regardless of the reasóns which appeal to the executive, his act in extending clemency is merely one of grace — a gratuity— a favor which may be arbitrarily, extended or withheld.

This court has- also decided that a court of equity will not lend its aid in the' reformation of. an instrument imperfectly executed in the performance of a statutory power, the elements of contract being absent. Tatum v. Croom, 60 Ark. 487, 30 S. W. 885; Landon v. Morris, 75 Ark. 6, 86 S. W. 672; Dunnivan v. Hughes, 86 Ark. 443, 111 S. W. 271. The controlling principle, how, ever, which, runs through both of the grounds for refusing reformation under such .circumstances is that there is no contractual relation between the parties, hence a court of equity will lend its aid to compel performance only of these things which the parties to the instrument have obligated themselves to do. Ip other words, it is the imperfect execution of a previous contract which may be reformed so as to require each party to do. that which he is under contract to do.

Counsel for Hall insist with much earnéstness that the attitude of the State in this proceeding constitutes a collateral attack upon the pardon, that a pardon is impervious to such collateral attack, and that this point was not directly decided in the case of Horton v. Gillespie, supra. The contention is that the pardon is not void on its face, and that it can only be avoided by a direct attack in a suit by the State to cancel it. With all due deference to the argument .of learned counsel, we must say that we disagree with him as to the effect of the decision in Horton v. Gillespie, for in that case it was directly decided that the question of the validity of the pardon could be raised on habeas corpus proceedings, and that the pardon under consideration in that case, which was in the same form as the one in the present case, was void.

In Dover’s case learned counsel contend that the period of Dover’s sentence has expired and that he cannot be rearrested, on the ground that the case falls within the doctrine announced by this court in the recent case of Williams v. Brents, ante, p. 367, 284 S. W. 56. The cases are not, however, at all similar. In the Brents, case the various instruments executed by the chief executive and denominated as ‘ ‘furloughs ’ ’ were, in effect, conditional commutations which, covered the whole period of the judgment of conviction,- and we decided that the commutation could not, after the expiration of the term, of punishment, be revoked by the Governor on account of a breach of the conditions. In the present case there was no commutation-of sentence, as the instruments were merely suspensions of execution of judgment — reprieves, in other words, as expressly authorized by the Constitution,- which merely postponed the execution of sentence and did not operate as commutations.

Our conclusion in each of the cases is that the p.ar: dons cannot be reformed, and that the unexpired sentence of each of- the pardonees can now be enforced. •

The decree of the Polk Chancery Court in the Dover case is therefore affirmed, and the decree of the Union Chancery Court in the Hall ease is reversed, and the complaint dismissed.

It is so ordered.


author: Wood, J.

text:
    Thompson v. Stephenson.
    Opinion delivered July 12, 1926.
    Highways — effect of failure to comply with special act. — Where the county judge tailed to comply with the mandatory provision of Acts 1925, p. 89, suspending the operation of Acts 1915, p. 1400, by appointment of the commissioners within 20 days after the act became effective, the contemplated road district failed, and subsequent creation of a district Covering the same territory under the general law was valid.
    Appeal from Chicot Chancery Court; E. G. Hammock, Chancellor;
    affirmed.

      William West, for appellant.

      W. W. Grubbs, for appellee.
   Wood, J.

The- General Assembly of 1925 duly enacted act No. 34, entitled “An act creating and establishing the Eudora-Kilbourne Road-Improvement District of Chicot County, Arkansas, and for other purposes.” The first section of the act, after declaring that the lands described therein are made an improvement district, provides,, among other things, that the county .judge of Chicot County, within twenty days after the act becomes effective, shall appoint three commissioners for the district. Section 4 of the act provides, in part, as follows: “The commissioners or directors of said road .improvement district, within thirty days after they have qualified by making and filing the oath of office with the county clerk as herein provided, shall call an election of all owners of- real property situated in said district hereinafter provided for in this section of this act. And said commissioners or directors shall not proceed with- the construction of the improvement, and shall not issue any bonds to secure funds therefor, unless a majority in number and in value of the landowners in fee simple in said district, voting at said election, shall express by their ballots a desire that the construction of said improvement be proceeded with.” The act contains the emergency clause, and took effect February 9, 1925.

The commissioners were not appointed by the county judge, as provided by § 1 of the act, and hence no election was called as required by § 4. The territory embraced in the district created by act No. 34, supra, was afterwards organized into a district under act 338 of the Acts of 1915, commonly known as the Alexander Road Law. The organization of this district was in all things legal and regular. The terminus of the road provided for under the act of 1925 connects with the Arkansas-Louisiana highway a little over a quarter of a mile north of the point of intersection of the road provided for by the district created under the general law, and the road laid out by the special act of 1925 is approximately two miles longer than the road provided for under the general law. The road laid out under the general law is perfectly straight, while the road provided for by the special act has many abrupt, dangerous and unnecessary curves in it. The State Highway Department and • the Federal Department of Roads have refused to grant.aid in.the-construction of the road as laid out by special act No. 34, supra. But the State Highway Department has allotted to the road laid out under the general law. fifty per cent, of its estimated cost.

This action was instituted by O. L.- Thompson, a property owner in the district, hereafter called the appellant, against the commissioners of the district (hereafter called the appellees) created under the general law. In his complaint the appellant sets up the creation of -the district under act No. 34 of the Acts of 1925, and alleges that the road district subsequently created under the general law is void because it embraces the same territory as that described in act No.. 34, supra. He alleges that the appellees, unless restrained, will proceed to make the improvement contemplated by the creation of the district under the general'law, and that they will issue bonds.and let contracts to that..end, which will constitute a cloud upon his title. He therefore prays that the appellees be restrained from making such improvement. The appellees answered, setting up in defense to the action substantially. the above facts, and alleging that act No. 34, supra, had never been put in operation and never could be. The cause was heard upon the above facts presented to the trial court under an agreed statement. The court entered a decree dismissing the appellant’s complaint for want of equity, from which decree he duly prosecutes this appeal.

Act No. 34 of the acts of 1925 during the tirhe, under its provision, that it could have been put in operation, was a suspension of the operation of the Alexander Road Law, act 338 of the Acts of 1915, as to the creation of an improvement district covering precisely the same territory and for the construction of a highway practically over the same territory as that embraced in act No. 34, supra. But when the county judge of Chicot County failed to perfect the organization of the improvement district created by act No. 34, supra, and no steps were inaugurated to complete the establishment of the district according to the requirements of the act, the act, under its own terms, was never made effectual. The agency designated by the Legislature, and the only agency that could put in motion the machinery by which act No. 34 could be made effectual, failed or refused to put such machinery in motion, and therefore the act was never put in operation, and the project contemplated by it has been abandoned. Unquestionably, the provisions of the act requiring the county court to act by the appointment of commissioners within twenty days, and requiring these commissioners to hold an election within thirty days after their appointment, were mandatory provisions. Not being complied with, the act necessarily fails, and the district contemplated by it was never in fact established.

The abandonment of this project leaves the creation and operation of the district under the general road law intact and in full force and effect. The decree of the chancery court so holding is correct, and it is therefor* affirmed.


text:
    Paving Districts Nos. 2 and 3 of Blytheville v. Baker.
    Opinion delivered June 28, 1926.
    1. Municipal corporations — assessment in improvement district —collateral attack. — An action to restrain the enforcement of special assessments in improvement districts after expiration of 30 days from the passage and publication of an ordinance is a collateral attack on the assessment, which can be set aside only when obviously and demonstrably erroneous on its face.
    2. Municipal corporations — effect of including lands in improvement district. — The inclusion of lands in a municipal improvement district by a city council in organizing the district raises no presumption that the lands included are benefited, as the council has no authority to determine the benefits, that being the function of the board of assessors.
    3. Municipal corporations — improvement district — authority of assessors. — -Crawford & Moses’ Dig., § 5658, authorizing the board of assessors in ah improvement .district to assess the value of the benefit to accrue to each tract of land in the district, carries by implication the authority to- determine, whether any benefits will accrue to any particular tract, and, if so, to what extent.
    4. Municipal corporations — improvement . district — omissions FROM ASSESSMENT. — The fact that, property within a paving improvement district is omitted from the assessment does not, regardless of the situation of the property or its extent in comparison with the whole area embraced in the district, demonstrate a mistake rendering the assessment void.
    5. Municipal corporations — improvement districts — omissions from assessment. — The fact that maps of a paving improvement district show that lots, similarly situated to those assessed • are omitted from the assessment list does not necessarily demonstrate erroneous omissions invalidating the assessment, especially where it appears that a portion of the proposed improvement contiguous to the omitted lands was made by another improvement district.
    6. Municipal corporations — improvement districts — omissions of lots — presumption,—The omission of lots within an improvement district from the assessment list raises the presumption that the omitted lots were found not to be benefited.
    7. Municipal corporations — improvement districts — validity.— Failure of a municipal improvement district to construct part of the' improvement in territory overlapping a rural district does not affect the validity of the district, where the construction of the improvement by the rural district' benefited owners of the property jn the district.

      8. Municipal corporations — improvement district — revision of assessments. — Revision of the assessments in an improvement district is a statutory duty, under Crawford & Moses’ Dig., § 5664, and not one which may be the subject of contract between the commissioners and owners of the property, and hence no claim can be made on a contract to reassess benefits.
    Appeal from Mississippi Chancery Court, Chicka■sawba District; J. M. Futrell, Chancellor;
    reversed.

      Frank G. Douglas and Rose, Hemingway, Cantrell & Loughborough, for appellant.

      Nelson S Crawford, for appellee.
   McCulloch, C. J.

This litigation involves the validity of the assessment of benefits in two street improvement districts ir£ the city of Blytheville, and it also involves, to some extent, the validity of the organization of one of the districts. Both of the districts were organized under general statutes by ordinances of the city council in the year 1923. There was an assessment of benefits in each district, money was borrowed, bonds issued, and the several improvements were completed, with the exception, of a portion of one of the streets, which will be referred to later in this opinion. Appellees are owners of property in each of the districts, and they instituted this action against the commissioners to restrain them from enforcing the special taxes. On a final hearing of the cause the chancery court decided that the assessments of benefits were void except as against the bondholders, and the court ordered a reassessment.

The principal attack on the validity of the assessments is that a large area in the district was entirely omitted from the assessment list — that no benefits were assessed against the lots and blocks in this area, and that this rendered the assessment on its face discriminatory and void. This action was brought long after the expiration of thirty days from the passage and publication of the ordinance levying the special taxes on the assessed benefits, hence it is a collateral attack on the validity of the assessments, and not a direct attack. In' that kind of an attack the court can only set aside the assessment list when it appears on its face to he obviously and demonstrably erroneous. Board of Improvement v. Pollard, 98 Ark. 543; Gannaway v. Street Improvement District, 164 Ark. 407.

It is contended that the inclusion of lands in a municipal improvement district by the city council in organizing the district raises a conclusive presumption that such lands are benefited to some extent, and that a failure of the assessors to estimáte any benefit makes the assessment void on its face. Counsel rely upon the decision of this court in Little Rock v. Katzenstein, 52 Ark. 107, and later cases following it, where it was held that the action of a city council in including property in a district is “conclusive of the fact that it is adjoining the locality to be affected, except when attacked for fraud or demonstrable mistake.” Counsel are mistaken in tjieir estimate of the effect of those decisions, for the act of the city council in including property does not raise a conclusive presumption of actual benefits. It is merely conclusive of the validity of the action of the council in determining that the lands adjoin the district and may be benefited. The policy of our statute oil this subject is to leave the question of benefits to an actual estimate or ascertainment by a board appointed for that purpose after the creation of a district. The city council .is not authorized, under our statute, to determine the extent of the benefits, but it is authorized merely to create the district, and this necessarily implies the power to ascertain what property adjoins the district and may be benefited. The statute (Crawford & Moses’ Digest, § 5658) provides that the board of assessors “shall assess the value of the benefit to accrue to each” of the units of real property in the district. The statute does provide for an actual estimate, not a theoretical one or one based upon the presumption arising from the inclusion of property in the district. The authority conferred by the statute upon the assessors to estimate the benefits necessarily carries by implication the authority to determine whether or not any benefits at all will accrue to a given unit of property, and, if so, to what extent. The fact that property is omitted.from the assessment does, not, regardless of the situation of the property or its extent in comparison with the whole area embraced in the district, demonstrate a mistake which renders the assessment void. It is not made to appear that there are any demonstrable errors in the assessment. It is not-shown on the face of the assessment list that intervening, property abutting on any portion of the improvement is. omitted whilst other property farther removed is included in the assessment of benefits so as to bring the case .within our decision in Heinemann v. Sweatt, 130 Ark. 70, and like cases.

It is true that the maps of the districts and the-assessment lists show that lots or tracts similarly situated, apparently, to those assessed are omitted, but that does not necessarily demonstrate erroneous omissions, There may have been reasons, not apparent from a mere inspection of the lists and maps, why the omitted lots were not .in fact benefited. This is a collateral attack-on the validity of the assessments, and we can look only to the face of the papers to discover-whether or not.there is demonstrable error in the assessments. House v. Road Improvement District, 158 Ark. 357. One of the. extensive areas omitted from ' the assessment list, was property abutting on a portion of one , of-the improved streets where the improvement • was constructed, not at the expense of this district, but by a certain rural improvement district, which extended into the city of Blytheville and overlapped the territory of these two -districts. It appears from the record in this ease that a portion of Chickasawba Street, which was embraced in the rural improvement district, was improved through that agency, and not at-the cost .of either of these improvement districts. The evidence shows that the Board of Improvement of District No, 2 permitted the rural improvement district, under special agreement, to improve that portion of Chickasawba Street which was. embraced in the rural district. The fact that that part of the improvement was not made by the municipal district involved in this litigation, but at the expense of another district, doubtless formed the basis of the judgment of the board of assessors in failing to assess the property abutting on or contiguous to that portion of Chickasawba Street. 'At least we cannot say that the omission of that property was obviously and demonstrably erroneous, so as to render the whole assess-* ment list void.

Again, it is contended that the assessment is void because certain lots shown on the maps as being within the boundaries of the districts were entirely omitted from the assessment lists. Counsel rely on the decision of this court in Capps v. Judsonia & Steprock Road Imp. Dist., 154 Ark. 46, but that case does not bear out the contention. That case was not one where property was omitted from the assessment list, but the point involved was whether or not the failure of the assessors to complete the assessment before the list was filed and notice thereof published rendered the assessment invalid. The statute creating this district (act No. 8, Extraordinary Session of 1920, § 7) requires only the assessed property to be listed, and the omission of lots from the list raises the presumption on collateral attack that the omitted property was found by the assessors not to be benefited. The omission therefore does not invalidate' the assessment. Under the provisions of the statute, owners of property were given an opportunity to challenge the correctness of the assessments, but there were no timely protests, and it is. too late now to attack the assessments except for errors demonstrable on the face of the lists and maps.

Counsel for appellees call our attention to act No 20, enacted at the extraordinary session of the. General Assembly in 1923, providing that “no road improvement district within this State shall in any way affect the validity of any municipal improvement which was organized for the purpose of paving streets over which any road improvement district may pass.” Counsel argue that the effect of this statute is to withdraw the authority of a road improvement district over the territory embraced in a municipal district, and that the integrity of the municipal district is destroyed by a failure to proceed with that part of the improvement. Counsel rely on our decision in Moore v. Improvement District, 161 Ark. 323. That case involved a controversy between the owners of property and a municipal district in which the authority of the latter to construct the improvement which was previously embraced in the rural district was challenged. When the litigation arose, and when our decision was rendered, that particular part of the improvement had not been constructed by either of the two agencies, and the question involved in the case related to the authority of the improvement district to construct the improvement, and we held that the statute withdrew the authority of the rural district and authorized the municipal district to make the improvement. In the present case the question raised is whether or not the validity of the municipal district organization or the assessments thereunder are affected by a failure of the district to construct this part of the improvement. We think that the failure of the municipal district to make this part of the improvement does not affect its validity, for the construction of the improvement in accordance with the plans formed by the municipal district resulted in benefit to the owners of property in the district. We are not called on in this case to review any question of assessment of benefits in the rural district, assuming that all property adjoining the locality was included in the district and that benefits were assessed. This situation, however, confirms the correctness of our views, already expressed, that, the attack on the assessment being collateral, we can discover no demonstrable mistake, and the assessment must therefore stand.

The decree of the chancery court is also defended by counsel for appellees on the ground that there was a previous action instituted by appellees and other property owners against the district, which, was dismissed on the express agreement with the commissioners that the percentage of the annual installments of taxes should be lowered and that there should be a reassessment of benefits, which agreement was not • carried out by the commissioners. The statute (Crawford & Moses’ Digest, § 5664) provides for revision or readjustment of assessments by the. commissioners of a district, but this is a statutory duty and not one which may be the subject of a contract between the commissioners and the owners of property. If the property owners are entitled to compel a revision or adjustment, it must be a right conferred by the statute, and not by contract entered into with the commissioners.

We have reached the conclusion that thé chancery court erred in declaring the list of assessments to be void and ordering a new assessment, and the decree is therefore reversed, and the cause remanded with directions to dismiss the complaint for want of equity.


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    Arkansas Western Railway Company v. Robson.
    Opinion delivered July 12, 1926.
    1. Carriers — transportation op live stock — jury questions.— Issues, in an action against a carrier, as to the condition of cattle when received, as to their condition when delivered, as to whether this condition was caused toy the' carrier’s negligence, and as to the market value of the cattle, were for the jury.
    2. Carriers — conclusiveness op bills op lading. — Bills of lading are not conclusive of. their recitals, because they evidence both a receipt of the articles and a contract for carriage, since, as receipts, they may be explained, and as contracts of carriage they are to be construed according' to their terms.
    3. Evidence — bill op lading — parol evidence to explain. — Notation on a bill of lading concerning the condition of cattle received for shipment may be explained by parol evidence, as they pertain to that part of the bill of lading which constitutes a receipt.
    4. Evidence — parol evidence op fraud or mistake in writing.— Evidence tending to prove that notations on bills of lading relating to the condition of cattle when received for shipment were placed thereon after the bills were signed held admissible as tending to show fraud or mistake in such notations.
    5. Carriers — bills of lading — effect of signing. — .Where shippers were given opportunity to read bills of lading before signing them, they are bound by them, so far as they express the terms of the contract of shipment.
    6. Carriers — negligence in carriage of livestock — burden of proof. — Shippers who accompanied cattle had the burden to show that damage to the shipment was due to the railroad’s negligence, where the bill of lading stipulated that they take care of the stock while being transported, and hence an instruction placing the burden on the carrier to show that damage was not caused by its negligence was erroneous.
    Appeal -from Scott Circuit Court; John E. Tatum,Judge;
    reversed.

      Joseph R. Brown and James B. McDonough, for appellant.

      A. F. Smith, for appellee.
   Wood, J.

This is an action by the appellees against the appellant to recover the sum of $845, damages alleged to have accrued to tbe appellees by tbe alleged negligent handling of cattle which the appellees had delivered to, and which were accepted by, the appellant, for shipment from Waldron, Arkansas, to Nowata, Oklahoma. The appellees alleged in substance that, after accepting the cattle for shipment, the appellant disregarded its contract to ship the same in safety to their destination, “handling the same in a manner' so rough and with such carelessness and negligence that 26 head thereof arrived at their destination dead;” that 18 head were steers of the value of $35 per head, that three head were bulls of the value of $30 per head, five were cows of the value of $25 per head, making a total valuation of $845, for which the appellees prayed judgment.

The appellant denied all the material allegations of the complaint, and set up as affirmative defenses that whatever injury was done to the cattle was due wholly to their poor and weak condition, of which the appellant’s agents were not aware at the time the animals were accepted for- shipment; that the animals were shipped in violation of the quarantine laws and regulations of the United States and of the Interstate Commerce Act. The appellant also set up the contract of shipment providing that the carrier shall not be liable for damage to the animals as caused by the default of the shipper or owner or agent thereof, and shall not be liable where the owner has overloaded or crowded the animals for shipment, and alleged that the damage was caused solely by the default of. the shipper in failing to care for the animals during and after shipment. The appellant attached to its answer a copy of the contract of shipment, and alleged that its agent was without knowledge that the quarantine regulations of the United States had been violated at the time he received the animals for shipment, and that such agent indorsed on the contract of shipment that the animals were poor and weak, and were received for shipment at the risk of the appellees. The appellant further alleged that the appellees failed to comply with the provisions of the contract requiring notice to be given the appellant of injury to the live stock.

After the testimony had been adduced by the respective parties, the appellant asked the court to instruct the jury to return a verdict in its favor, which the court refused, and this is the first ground of appellant’s contention that the judgment should be reversed. Counsel for the appellant argue that the undisputed testimony shows that the cattle were not delivered and accepted by the appellant in good condition, and that the appellees wholly failed to show that the appellant was negligent in the handling of the cattle, and wholly failed to prove the amount of their damages. These were purely questions of fact, and it suffices to say that the testimony on these issues was sufficient to sustain the verdict.

Fleming, one of the appellees and owners, testified in substance that the cattle, when they arrived at Waldron for shipment, were good, thrifty cattle. None of them manifested any weakness in driving or dipping. They were poor, but they had been fed corn, clover hay and oat hay and every kind of feed that -would strengthen them.

G. W. Eobson, another one of the appellees and owners, testified that the cattle were in good average condition, and well fed. They were as good as any cattle at that time of the year. None of them were any weaker or poorer than ordinary cattle. He did not observe anything at all in loading or shipping that would indicate that the cattle were weak. The witness went with the cattle. They were handled very well until they got to Sallisaw. He stated that it was the roughest train he ever rode on, and that he had shipped quite a few cattle in his life. He was asked what he meant by the train being handled roughly, and answered, “I suppose in jerking the engine. ’ ’ A railroad man came along where this witness was lying down in the caboose, and said, “If you don’t want to get knocked into the wall, you had better get up from there. ’ ’ He was afraid that the witness might go through the wall if he didn’t get up. When the cattle arrived at their destination, one car was in a very bad condition. Part of the cattle were killed, part of them bruised, and a few piled up over each other— some dead. They did not appear as though they had horned or injured each other.. This witness was asked if the cattle had been moved in violation of the United States quarantine laws, and answered that he obtained permission from the supervisor of the quarantine regulations to move the cattle from Pope County to Scott County. If he had not obtained permission from the Federal authorities, he would not have moved the cattle. The cattle were certified out in a manner satisfactory to the railroad agent and also to the agent of the Government.

Other witnesses for the appellees testified that they saw the cattle when they were being driven through the country on the way to the station at Waldron, and that the cattle seemed to be in fair condition for the season. Oné witness stated that, taking them as a whole, they were a fair bunch óf cattle. He didn’t see any weak ones in the hunch. He remembered seeing some nice ones. Another witness stated that he would have considered it a good bunch of cattle for the time of the year. None of them manifested any signs of weakness in driving them. They got to Waldron one day, were dipped the next, and were shipped the next day. -The testimony of the appellees was to the effect that, at the time they signed the waybills, they were in a hurry, and didn’t observe any notations on the waybills or bills of lading. They denied the testimony of the appellant’s, station agent as to the notations that the cattle were poor and weak being on the waybills at the time they signed the same. They stated that they had no knowledge of any notations. It could serve no useful purpose to set out in detail and discuss further the testimony of witnesses for the appellees.

The testimony of the appellant’s, station agent at Waldron was to the effect that he issued the bills of lading evidencing the shipment. These bills of lading are sometimes called live-stock contracts. These four hills of lading were signed by the appellees in witness’ presence. He had placed certain notations on these bills of lading at the time they were signed by the appellees. He discussed the condition of the cattle before they were accepted, and he stated that one of the appellees told him that the cattle were poor and weak and some of them too weak to be shipped. Witness agreed to accept the cattle that were too weak to be shipped if they would place the same in one car. This was done, and witness placed on that car the notation, “10 cows, 6 steers, loaded under protest on account of being poor and weak.” On the issue as to .the value of the cattle, there was testimony on behalf of the appellees tending to prove that the steers and hulls were worth from thirty to thirty-six dollars per head and that the cows were worth twenty dollars per head at Nowata, Oklahoma.

The court did not err in refusing appellant’s prayer for a directed verdict. As to whether or not the cattle, at the time they were received, were in good condition, and as to whether or not they were delivered at their destination in a had condition, and as to whether or not this condition was caused by the- negligence of the .appellant, as well as the-issue as to the market value of the cattle, were all questions of fact which the appellees were entitled to have submitted to the jury. Bills of lading are not conclusive of their recitals, because they evidence both a receipt of the articles and a contract for carriage. As receipts, they are susceptible of explanation and may be contradicted. As contracts for carriage, they are to be' construed according to their terms. The notations on these bills of lading were concerning the condition of the cattle when they were received for shipment; and pertained to that part of the bill of lading which constituted a receipt and not to that part constituting a contract for carriage. See Prescott & Northern Ry Co. v. Davis, 126 Ark. 366, 191 S. W. 210; Little Rock & Fort Smith Ry. Co. v. Hall, 32 Ark. 699. The testimony therefore as to the notations on the waybills and bills of lading as to the condition of the cattle was susceptible of explanation, and the parol testimony on that issue was permissible for that purpose. Furthermore, the testimony of the appellees tending to prove that the waybills were presented to them and required to be signed by them when they had no opportunity to examine the same, and that they had no knowledge of any notations being placed thereon, was sufficient to submit the issue to the jury as to whether these notations were on the waybills and bills of lading at the time same were signed by the appellees. This testimony was competent on the ground that, if these notations were placed on the waybills and bills of lading after they were signed by the appellees, such notations were a fraud oh their rights, and they were not bound thereby, and it was relevant for them' to prove the circumstances under which these written instruments were signed as tending to prove fraud or error in these notations. ' To be sure, if the circumstances were sufficient to warrant the conclusion that the appellees were given an opportunity to read the bills of lading, then they would be bound by the written instruments so far as they expressed the terms of the contract of shipment. See St. L. I. M. & S. Ry. Co. v. Weakley, 50 Ark. 394, 8 S. W. 134; Prescott & Northern Ry. Co. v. Davis, supra.

Among other instructions, the court gave the following at the instance of the appellees: “You are further instructed that the burden is upon the defendant company to prove by a preponderance of the evidence that the cattle were killed by their own inherent vices, weakness and natural propensities to injure each other, and not upon account of the negligence or carelessness of the defendant company.” The court erred in giving this instruction. In St. Louis-San Francisco Ry. Co. v. Wells, 81 Ark. 469, 99 Ark. 534, we held, quoting syllabus, “the rule that, where a shipper of live stock accompanies the car in which the stock is transported,- and has charge thereof, there is no presumption of negligence against the carrier arising merely from the death of the animal, has not been altered by act of March 26, 1895, p. 64, requiring carriers to furnish shippers of live stock free transportation to and from the point of destination.”

The bills of lading or live-stock contracts for shipment in this case contain, among other, the following-provision: “The shipper, at his own risk and expense, shall load and unload the live stock into and out of cars, except in those instances where this duty is made obligatory upon the carrier by statute or is assumed by a lawful tariff provision. In case any person shall accompany the live stock in charge of same, he shall take care of, feed and water the live stock while being transported, whether delayed in transit or otherwise,” etc. Under the provisions of the bills of lading and the admission by the appellees that they accompanied these cattle in the shipment, the burden was upon the appellees to prove that the injury and damage sustained by the appellees resulted from the negligence of the appellant’s servant. St. L. I. M. & S. Ry. Co. v. Weakley, supra; St. L. I. M. & S. Ry. Co. v. Wells, supra. The court erred therefore in-granting appellees’ prayer for instruction No. 7. It cannot be said-that-the uncontroverted testimony shows that the injury to the appellees’ cattle and the-resultant loss and damage was caused through the negligence of appellant’s servant. This was-an issue for the- jury under the evidence, and should have been submitted under instructions, which placed the burden upon the appellees to prove, negligence, instead of upon the appellant to exonerate itself from the charge of negligence.

We find, no other reversible error in the record, but, for thé above, the judgment is-reversed,.and-the causé is remanded for a new trial. . - .