author: McHaney, J.

text:
    Howe v. Long Prairie Levee District.
    4-3144
    Opinion delivered July 3, 1933.

      Rose, Hemingway, Cantrell & Loughborough, for appellant.

      Chas. D. Frierson and Charles Frierson, Jr., for appellee.
   McHaney, J.

This litigation involves a contest between appellants and appellee Tolman as to the priority of bonds held by them which are the obligations of . the Long Prairie Levee District of Lafayette County. This district was created by special act of the Legislature, act 106 of 1905, p. 267, for the purpose of constructing a levee along the east bank of Red River in the territory described in the act. The act further provided for the levy annually of a tax upon the real property included in the district, based upon the valuation according to the real estate assessment books' of the county, not to exceed annually 4 per cent, of the assessed valuation. Section 20 provides that “the said board of directors shall have the power to borrow money, and to that end may issue bonds of said board to the amount of not exceeding $125,-000,” which were to be made payable in not less than 20 nor more than 40 years, and should be designated as 20-40 bonds, “that is, at the discretion of said board all or any number of said bonds shall, on notice, * * * be redeemable or payable at the end of twenty years, but it shall be the duty of said board, should it not elect to pay all of said bonds at the end of twenty years, to create a sinking fund for the payment of the principal of said bonds by annually appropriating from the revenue, as provided for by this act, a sum not less than $5,000, which shall, as soon as paid in, be applied annually to the payment of said bonds, commencing with number one and paying them consecutively.”

Section 28 provides: “That (to) the payment of both the principal and interest of the bonds to be issued under the provisions of this act, the entire revenues of the district arising from any and all sources, and all real estate, railroads, and tramroads subject to taxation in the district, is by this act pledged, and the board of directors are hereby required to set aside annually from the first revenues collected from any source whatever a sufficient amount to secure and pay the interest on said bonds.” There a're many other provisions of the act, but we deem it unnecessary to set them out.

This act was amended in 1907, act 34, p. 71: It recognizes the fact that the first bond issue was insufficient to complete the levee by providing in § 4 the following: “That for the purpose of building, erecting and completing the levee beg^m by the board of directors of the Long Prairie Levee District, and for enlarging, repairing, constructing and maintaining the same, and to enable the said board of directors to fully carry out the ends and purposes of this act and of said act of March 23, 1905,” the said board was empowered to borrow $225,000 and issue bonds therefor, including the $125,000 already outstanding, or, in other words, to issue $100,000 additional bonds. The rate of the maximum tax to be levied was raised from 4 per cent, to 8 per cent. A similar pledge of revenues was authorized.

Certain other amendments to the original act were passed in 1909 and 1915. In 1917 the Legislature enacted act 339, vol. 2, p. 1683, Acts 1917, entitled, “An Act Conferring Additional Powers Upon the Long Prairie Levee District.” The preamble to the act states the necessity therefor by reciting that the district has lost a considerable portion of its levees by overflows of the Red River, and that, “owing to the erection of levees upon the opposite, bank of Red River, it has become necessary to raise and strengthen the levees” of the district. Section 2 of said act provides for the appointment of assessors to assess the benefits accruing to the lands in the. district “by reason of the levees heretofore built and of those which will be built under this act. ’ ’ Another section provides for the collection of a tax on the benefits so assessed of 5 per cent, per annum. ¡Section 8 reads as follows: “In order to fund the outstanding indebtedness of the district, and to raise money with which to make the improvements contemplated by this act, the board of directors of said district is authorized, to issue bonds payable serially through a period of not exceeding twenty-five'years, and in an amount not exceeding $500,000, bearing a rate of interest not exceeding six per cent., the first bonds to be payable not earlier than three years after date. The lowest numbers of said bonds in an amount equal to the outstanding certificates of indebtedness of the district shall be set aside and used only in taking up the outstanding certificates of indebtedness, bonds and coupons thereof, either by exchanging the new bonds for the old certificates of indebtedness and bonds matured coupons at par, or by sale and the application of the proceeds to the retirement thereof, as the board deems most desirable, if the board concludes to fund the outstanding indebtedness. The bonds shall not be valid until authenticated by some trust company located either in the city of Chicago or in the city of St. Lo.uis, to be chosen by the directors and the funding of the old bonds shall be effected through such trust company. ’ ’ Section 9 pledges all the revenue of the district to the payment of the principal and interest of the bonds to be issued under the act, and that, if any bond or interest coupon so issued shall be in default for 30 days, it shall be the duty of the chancery court to appoint a receiver on the application of the holder thereof to collect the taxes, and an assessor to reassess the benefits, if necessary, “and the proceeds of such taxes and collections shall be applied, after the payment of costs, first, to the overdue interest, and then to the payment pro rata of all bonds issued by the said board which are then due and payable.”

The district did not refund the outstanding bonds issued under authority of the Acts of 1905 and 1907 by the $500,000 authorized to be issued by the act of 1917, nor did it sell enough of the 1917 authorization to pay them off in cash. It sold only $275,000 of bonds under the 1917 act, which made a total of $500,000 outstanding. Some of the bonds and interest coupons held by appellants being in default more than 30 days, they brought suit in the Lafayette Chancery Court for the appointment of a receiver, alleging that all the bonds outstanding were on a parity, and that all were entitled to share alike in the proceeds of the collections. A receiver was appointed. Appellee Tolman intervened, claiming priority on account of his ownership of bonds issued under authority of the Acts of 1905 and 1907. The trial court sustained his claim, and this appeal is from that order.

In Hoehler v. W. B. Worthen Co., 154 Ark. 444, 243 S. W. 822, it was held, quoting syllabus: ‘ ‘ Though bonds issued under authority of a special statute creating a certain road improvement district (Acts 1909, p. 1151) were issued and sold in two successive, allotments, all the bonds issued were within the authority conferred, and amounted to a single issue, and no priority was created in favor of the holders of the allotment. just issued, and the funds in the hands of a receiver appointed on default-in judgment under the statute should be distributed pro rata on all matured bonds.” There the bonds were issued at different times but under the same authority. In McKinney Bayou Drainage District v. Garland Levee District, 181 Ark. 898, 28 S. W. (2d) 721, we held that there was no priority of liens of bonds issued in overlapping districts, created by different acts of the Legislature and at different times, except as to accrued taxes in the district prior in point of time. We there said: “There are holdings by some courts in other States that the improvement district first created has the prior lien, while in others it is held that the last created has the prior lien. But, as we see it, great confusion will result from either holding. No doubt the Legislature has the power to provide that the one or the other is prior, but, until it has done so in plain and unmistakable language, we do not feel that we should so hold. Furthermore, the view we now take is just and equitable. It is conceded that the levee district without the drainage district failed to accomplish the purpose of its creation. It is likewise true that the drainage district without the levee district would be practically useless. Each therefore is complementary to the other. It would therefore appear to be unfair and inequitable for either lien for taxes to be held prior to the other, except as indicated herein, unless the Legislature has made it so in plain and unmistakable language, and we do not think it has done so. The acts under which both districts were created provide that each lien shall be superior to all other liens, but, as we have already shown, such liens are not superior to the State’s lien for taxes and are only superior to contract liens.”

An examination of the acts relating to this district, which we have set forth above rather fully, is convincing that no priority of rights was intended to be given to any bond issue. The only object or purpose of a levee of this kind is to reclaim land from overflow. If it fails to accomplish this purpose, it is worthless. If the lands it is designed to protect are not protected, they receive no benefit, and benefits to the land is the only excuse for burdening them with the cost thereof. The act of 1907, § 4, constitutes a legislative finding that the $125,000 of bonds sold under the act of 1905 did not complete the levee, and that $100,000 more was required “for the purpose of building, erecting and completing the levee begun. ’ ’ Therefore, if in fact the levee was not completed and the first bond issue was exhausted, the lands had not been reclaimed or benefited. It was necessary therefore to sell the bonds authorized by the act of 1907 to complete the levee. If these latter bonds constitute a second lien or mortgage only, who, except, perhaps, the holders of the first bonds, will buy them? It is not usually considered to be a safe investment to buy a second mortgage. The district ran along then for 10 years, in the meantime incurring additional indebtedness for which certificates were issued under authority of acts 339 of 1909 and 320 of 1915, for which payment was provided by raising the percentage of taxation on the assessed valuation of the land, until the act of 1917 was passed. This act is a legislative finding that a considerable portion of the levee had been lost by overflows and that the levee was too low and too weak because of a levee constructed on the opposite bank of the river, and that the absolute necessity existed to raise an additional sum of $275,000 to rebuild, raise and strengthen the levee, else the land in the district would be without protection, would become worthless and the security for the payment of previous bonds destroyed. We think this act provides in substance that all bonds shall be on a parity. It provides that the prior bonds might be refunded. If they had been, it could hardly be contended that they constituted a prior lien. They were not refunded, but could have been, had the district so desired, and are not entitled now to priority. Appellee purchased his bonds of the former issues with the full knowledge that the levees,'even, after completion, might wash away and of the power of the Legislature to provide for their restoration. This does not impair the obligations of his contract, because he contracted with reference to the inherent nature of the subject-matter and the power of the lawmakers in the premises. Any other holding would render it impossible to sell bonds in a levee district.

We do not overlook the holding of the Circuit Court of Appeals in St. Louis Union Trust Co. v. Franklin-American Trust Co., 52 Fed. (2d) 431, to the contrary view. The Supreme Court of the United States dismissed the writ of certiorari as having been improvidently granted, ivithout writing any opinion on the merits of the case. Whether the dismissal of the writ meant an approval of the holding of the Circuit Court of Appeals is not certain, as it is stated by eminent counsel that where the decision is approved the writ is not dismissed, but the judgment is affirmed. Whatever the court may have meant by its action in that case we are of the opinion that we. have already decided the question in principle in the Hoehler and McKinney Bayou cases, above cited, and we adhere thereto.

Other questions are discussed in the excellent briefs filed by learned counsel on both sides, but we deem it unnecessary to discuss them. The decree, will be reversed, and the cause remanded with directions to enter a decree in accordance with this opinion, with costs, to appellants.

Smith, J., dissents.


source: Caselaw Access Project

author: Butler, J.

license: Public Domain

text:
    Buffalo Stave & Lumber Company v. Rice.
    4-3062
    Opinion delivered July 3, 1933.

      M. A. Hathcoat, W. P. Spears and Cotton & Murray, for appellant.

      Griffin & Griffin and A. B. Arbaugh, for appellee.
   Butler, J.

The appellants had each sold to the appellees lumber and other material for the construction of a tourist camp situated on a forty-eight acre tract of land. The aggregate of the several amounts was approximately $1,300. Suit was brought in the Newton Chancery Court for judgment and for foreclosure of the materialmen’s liens on the property. The cases were consolidated for trial and a judgment rendered in favor of the plaintiffs (appellants' here) for the respective amounts of their debts and their several liens declared against the entire tract of land, which was ordered sold by a commissioner appointed by the court for that purpose unless the judgments were paid within a certain time. After this the appellees conveyed the property to a trustee by warranty deed, in which deed it was first recited the amounts of the several judgments given in favor of the appellants, and that a lien had been declared upon the lands, and that it was the desire of the parties (grantors) to pay said judgments in full. The deed then provided that, ih consideration of the premises and $1 paid, and the full satisfaction of the judgments mentioned, the land was bargained, sold and conveyed to the trustee. Then followed a description* of the land and a covenant of general warranty with relinquishment of dower by the appellee, Mrs. Clemmie Rice, wife of appellee, Gr. H. Rice. This deed was properly acknowledged and delivered to the trustee.

Contemporaneously with this, the appellees executed two promissory notes, one for $750, due and payable on November 15, 1932, and one in the sum of $550, due on March 15, 1933, both of said notes bearing interest at the rate of 8 per cent, per annum from date, the interest to be paid annually. A contract was there and then entered'into between the trustee and the appellees, which recited the conveyance by the appellees to the trustee, the execution of the two promissory notes mentioned, and that the agreement that a quitclaim deed to the property then executed by the trustee to the appellees, the notes, and a copy of the contract should be placed in the Newton County Bank at Jasper, Arkansas, in escrow to be delivered to the appellees upon the payment by them of the notes with accrued interest and such further sums as the trustee acting for the appellants might have paid to keep the property insured and taxes paid thereon, the appellees in the contract having obligated themselves to keep the premises in good repair, free from liens and incumbrances, insured against loss or damage by fire, hail or tornado in a sum not less than $1,300, loss payable 1o the appellants as their interest might appear, and further obligated themselves to keep all taxes on the property fully paid. The contract further provided that, in the event of default in payment of either of the notes at maturity or any interest payment when due, or on failure to reimburse the appellants for any amounts expended for taxes, insurance, etc., within thirty days after such payments had been made, the Newton County Bank, the escrow agent, should surrender the quitclaim deed to the appellants, with the further provision that any payments made by the appellees should be considered as rental of the premises, and that, in the event of default aforesaid, the appellees should surrender immediate possession of the lands and premises to the appellants or their legal representatives. The quitclaim deed was executed and delivered to the escrow agent as provided for in the contract.

On the......day of November, 1932, the appellees filed a motion in the chancery court praying that the order of sale be quashed and the judgment modified, alleging as a ground therefor that the judgment had erroneously included the entire tract of land on which the improvements were located in violation of § 6906 of Crawford & Moses’ Digest, which provides for a lien on the improvement and one acre of ground upon which the improvement is located and that the deed executed to the trustee had been procured under threats and coercion. To this motion a response was filed denying the allegations we have adverted to and interposing the plea of res judicata as to all the allegations regarding the judgment. The respondents (appellants) alleged that they were the owners of the land in fee as tenants in common by reason of the deed executed to the trustee, that appellees were in unlawful possession of the property, and prayed that possession be delivered to them, or, in the event the court should find that immediate possession should not then be delivered, that a receiver be appointed to take charge of the same and preserve the rents and profits for their use.

At the hearing, oral testimony was taken which was afterwards reduced to writing, and, upon the motion and exhibits thereto, the response and exhibits thereto, and the testimony adduced, the court found that the warranty deed to the trustee and the contract entered into between the appellants and the appellees, the notes and quitclaim deed contemporaneous therewith, constituted a single contract which was in legal effect a mortgage to secure the payment of the notes mentioned in the said contract, and that the plaintiffs in the original suit (appellants here) might amend their response to the motion and pray for a foreclosure of said mortgage; and, in the event the plaintiffs (appellants) should not elect to amend their response, that the motion should be dismissed. The appellants elected not to amend their response so as to pray for a foreclosure, and the court thereupon decreed that the judgment in favor of the appellants theretofore entered be set aside, having been satisfied by the execution of the deed and contract, and that the order of sale be quashed and the warranty deed and contract made by the appellees on March 21, 1932, be deemed a mortgage on the lands involved in the suit in favor of the appellants according to their respective interests, and the response of the appellants to the petition of the appellees to quash the order of sale was dismissed. From that judgment is this appeal.

It is the contention of the appellants that the deed executed to the trustee constitutes a deed absolute since by it the judgment debt theretofore existing was fully discharged, and that the quitclaim deed and contract were an additional sale and not, nor intended to be, a form of security for a debt, since no debt existed for which they could be security. It is well settled, as contended by the appellants, that a contemporaneous agreement for resale and purchase does not, of itself, make a deed a mortgage, but that question must be determined according to the real intent of the parties; and where there is a conveyance which extinguishes the debt and the parties intend that result, a contract for resale at the same price does not destroy the character of the deed as an absolute conveyance. The cases cited by counsel for the appellants support this declaration. Hayes v. Emerson, 75 Ark. 554, 87 S. W. 1027; Wimberly v. Scoggin, 128 Ark. 67, 193 S. W. 264; Snell v. White, 132 Ark. 349, 200 S. W. 1023.

It is likewise the rule that, where a deed purports on its face to convey the absolute title, and where the contention is made that it was in fact intended as a mortgage, the evidence to support that contention must be clear, unequivocal and decisive. Henry v. Henry, 143 Ark. 607, 221 S. W. 481. In the cases cited, and in all other authorities dealing with the subject, in determining whether a deed absolute on its face is such, indeed or only to be considered as a mortgage, the real question for the court’s determination is what was the intention of the parties at the time; and where such deed is accompanied by an agreement to reconvey upon certain conditions, it is proper to construe, the agreement and the deed together to determine whether that agreement was conditional sale or whether it should be deemed to be a mortgage when the transaction is considered as a whole. But the court, in determining the question, is not limited to the determination from the instruments alone, but from these and whatever extrinsic facts or circumstances are disclosed by the evidence. In reviewing the decisions of courts of chancery on questions of this character, great weight should be given to the opinion of the court as the presiding judge may be fully apprized of the existence of circumstances which but dimly appear to us from an examination of the record. The learned chancellor had an intimate knowledge of the instant case from its inception and of the character and situation of the parties and the course of the lawsuit. He interpreted the instruments, viewed in the light of the attendant circumstances and the evidence adduced, as a security for a debt, that security having been changed from the lien given by the court by instruments which were in effect nothing more than a mortgage. He concluded that this was the intention of the parties, and we are unable to say, after a careful consideration of the record before us, that he has wrongly decided.

Both Mr. and Mrs. Rice testified in the case, and the chancellor doubtless interpreted their testimony as clearly indicating their understanding to be that their judgment creditors did not wish to deprive them of their property, but merely to secure their debt. Their testimony was not disputed by any one, and from it it may( be inferred also that the property was worth many times the amount of the judgment. This should always be a persuasive circumstance in determining whether an absolute conveyance is indicated or merely a mortgage. If the judgment debt, the satisfaction of which was the consideration in the deed to the trustee, was ever in fact canceled on the record of the judgment, the record before us does not disclose that fact; and, if so, it is not conclusive of the question before us, for it might have been the intention to cancel that debt and by another transaction between the parties to create another means of continuing the former in force. The evidence on behalf of the appellees regarding the intention between the parties is strengthened by that paragraph of the contract which obligates them to keep the property insured at their own expense for a sum equal to the aggregate amount of the two promissory notes and to pay the taxes on the property. For these are usually burdens upon, and incident to, ownership and tend to sustain the contention of the appellees and the conclusion reached by the learned chancellor. It is true the appellants had a decree which was as effectual a means to collect their debt as the one the chancellor offered to give them, which they refused, and it might be argued that because they- did renounce their rights under this decree is an evidence that they did not intend to take merely a mortgage. It is to be gathered from the record before us, however, that the execution of this decree had beén enjoined before the transaction which we are now considering, and this might have influenced them in changing the form of the debt and the method of its security. It is true that the decision reached will have the effect of postponing the collection of appellants’ debt, but in the meantime it is drawing a legal rate of interest, and it appears that the security is ample, whereas, if appellants’ contention should be sustained, they would receive for their debt property which appears to be several times its value and take from the appellees all they have. The decision of the trial court, as we have seen, works no substantial injury to the appellants, but gives to the appellees a last clear chance to pay the debt and preserve the property. We are of the opinion that the court has worked out the equities in the case, and its decree is not against the preponderance of the evidence under the rule announced in Henry v. Henry, supra.

Affirmed.


text:
    Benton v. Nowlin.
    4-3153
    Opinion delivered July 3, 1933.

      Murray O. Reed, for appellant.

      Wallace Townsend, for appellee.
   Butler, J.

The commissioners of Street Improvement District No. 419 of Little Bock, Arkansas, were proceeding under the authority of act No. 112 of the Acts of the General Assembly of 1933 to refund the outstanding bonds of the district in the sum of $60,000. This suit was instituted by the appellant as a taxpayer to restrain the board from proceeding further in its contemplated action. A stipulation of facts was filed by the parties and a demurrer interposed to the complaint which the court sustained, and, the appellant electing to stand upon his complaint, the same was dismissed for want of equity. This appeal followed.

Section 1 of act No. 112 of the Acts of 1933 provides that any municipal improvement district shall have power to fund and refund its outstanding indebtedness, including its bonded indebtedness, and the accrued interest thereon, and to extend the maturity of such indebtedness on such terms as the commissioners of the district shall deem for the best interests of the same, and to that end may issue negotiable bonds of the district. It was provided that the refunding bonds might be exchanged for bonds outstanding of the original issue including the matured interest thereon, or they might be sold and the proceeds thereof applied to the outstanding indebtedness of the district; also, that refunding bonds should not be issued in a greater amount than necessary to pay the existing indebtedness with interest to the date of the delivery of the new bonds plus expenses incurred in connection with the new issue, and the new bonds could not be delivered except upon the surrender and cancellation of a proportionate part of the indebtedness being refunded ; nor should the new bonds bear a greater rate of interest than six per cent, per annum or be disposed of at less than par upon the basis of such interest.

The complaint challenges the constitutionality of § 2 of the act, said section being as follows:

“Section 2. In order to provide for the additional interest requirement of such refunding bonds and the expense incurred in connection with the issuance of such refunding bonds, the improvement district issuing refunding bonds may follow any one of the alternative procedures hereinafter outlined and designated as (a) and (b), to-wit:
“ (a) Such improvement district issuing refunding bonds may provide by resolution of the board of commissioners, duly adopted, that the entire balance unpaid on the date of the refunding bonds of the assessment of benefits against each lot, block and parcel of land and railroad track and right-of-way shall draw interest at any rate deemed advisable or necessary, not in excess of six per cent, per annum, from the date of the refunding bonds until paid, but the interest need not be collected until it is necessary to do so to avoid exceeding the total amount of benefits, and, if collected, shall be collected on each installment or annual levy separately; and after the date of said refunding bonds, the annual levies of assessment of benefits shall be collected on the balance unpaid on the date of said refunding bonds against each lot, block and parcel of land and railroad track and right-of-way in the improvement district, and a certified copy of such resolution shall be filed with the secretary of the district with the collector of the district; or
“(b)- Such improvement district issuing refunding bonds may provide by resolution of the board of commissioners duly adopted that the entire balance unpaid on the date of the refunding bonds, of the assessment of benefits against each lot, block and parcel of land and railroad track and right-of-way shall be the assessment of benefits against each respective lot, block and parcel of land and railroad track and right-of-way for the refunding issue of bonds and shall draw interest at any rate fixed by the resolution, not in excess of six per cent, per annum, from the date of the refunding bond until paid, but the interest need not be collected until it is necessary to do so to avoid exceeding the total amount of benefits, and, if collected, shall be collected on each installment or annual levy separately; and after the date of such refunding bonds, the annual levies of the assessment of benefits shall be collected on the respective assessments of benefits as thus fixed against each lot, block and parcel of land and railroad track and right-of-way, with or without an interest charge thereon, as the commissioners may deem necessary, provided, however, that when snch a resolution is adopted by the board of commissioners it shall be certified by the secretary to the sáid improvement district, and it shall be filed with the city clerk or town recorder who shall publish in some newspaper published in said city or town, if there be one, and, if not, then in some newspaper published in the county and having a bona fide circulation in such city or town, a notice which shall be in the following form :
“ ‘Notice to owners of property: (Here follows form of notice).’ “Within ten days after the publication of said notice, the district or any property owner may apply to the city or town council to revise the assessment so made, and the district or the property owner may within thirty days apply to the chancery court of the county to have the assessment revised and corrected. If no application is made to such council within ten days, or to such court within thirty days, said assessment shall become final and incontestable, subject only to annual revision as provided by law. On appeal to- the city or town council a hearing can be had as prescribed in § 5661 of Crawford & Moses’ Digest. When said assessment is filed, the city clerk or town recorder shall make the corrections upon the original assessment roll on file in red ink, and shall certify said assessment to the collector of the district.”

By the stipulation of facts it was agreed, among other things, that at the time of the construction of the improvement in 1926, business conditions were good, and the city of Little Rock enjoyed the general prosperity ; that the improvement was built with the expectation that connection would be made with one of the main highways of the State and continued as a -boulevard to the State Fair Park making the project a valuable one greatly increasing the value of property fronting the proposed improvement, and therefore the commissioners, with the consent of the property owners, built a wider and more substantial street than necessary to serve the ordinary traffic needs. The State Highway Department, however, refused to include it in the State Highway System, and to make the connection with the State highway and changes in business conditions have prevented the carrying forward of the plan of making the improvement a boulevard to the park. Because of this and the general decline in property values, the property owners have found the burden of assessments more severe than anticipated, and because of decline in rental values they have become unable to pay the annual assessment of benefits necessary to retire the present issue of bonds as contemplated, and a large part of the annual assessments have become delinquent and remain unpaid, to a total of approximately $14,000, the annual delinquencies becoming progressively greater each year. Consequently the property owners are in grave danger of losing their homes unless the bond issue can be refunded and the annual collections be greatly' decreased.

The present plan of the.commissioners contemplates the retirement of the bond, issue over a period of fifteen years, beginning with the year 1934, on which the annual requirements will be approximately one-half of what is required under the present schedule of maturity. The district is in default $9,500 in bonds due September 1, 1932, and $1,362 interest due March 1, 1933. The plan of the' commissioners brings all delinquent assessments up to date, cuts the annual burden about fifty per cent., and to that extent is a direct and positive benefit to the property owners in the district.

The complaint attacks the constitutionality of the act on three separate grounds. First, that, in order to pay the interest on deferred assessments provided for in the act and contemplated by the commissioners, the assessments of benefits must be increased, and, as the assessments cannot be levied or collected for any purpose except for the construction of the improvement including the necessary incidental expenses, the act violates the 'Constitution, as held in Bourland v. Southard, 185 Ark. 627, 48 S. W. (2d) 555. In this connection the appellant calls attention to the case of Street Improvement Dist., etc. v. Goslee, 183 Ark. 539, 36 S. W. (2d) 960, where it is held that the assessment of benefits in municipal improvement districts is fixed as of the time of the original assessment, which therefore can neither be increased nor diminished except for some physical change in the condition of the property since the original assessment, resulting in an increase or diminishing of property values.

Attention is also called to the case of Kelly Trust Co. v. Paving Improvement Dist., etc., 185 Ark. 397, 47 S. W. (2d) 569, and the rule there announced to the effect that local assessments can be imposed only to pay for improvements which result in special benefits to the property assessed.

On the doctrine of these cases, counsel for the appellant contends that the interest provided for in § 2, supra, and the expenses incurred by appellees in connection with the refunding of the outstanding bonds of the district, are additional burdens to the property of the district, and the practical result will be that the assessments of benefits must be materially increased to pay for the same, and that this is equivalent to increasing the cost of improvement. Moreover, they contend that the property will receive no corresponding physical, material, or substantial benefit, and therefore the act comes within the constitutional inhibition as decided by the cases which counsel have cited, supra.

Counsel also cite the case of Turner v. Edrington, 170 Ark. 1155, 282 S. W. 1000, in support of the contention that local improvement districts in cities and towns have no authority to collect interest on installments of assessments of benefits.

We do not assent to these contentions or agree that the case last cited holds as the appellant seems to think. It is true that the assessments of benefits must be based upon the special benefits to the property to be taxed which forms the basis of the right to impose the cost of local improvement upon the property, and that there can be no imposition of a tax in excess of the value of the benefits. It is also true that the consent of the property owners must first be obtained in the manner provided by law for the assessment of benefits to pay for the cost of construction of improvements in municipal improvement districts, and that the authority conferred by the original petition under which the district was formed could not be subsequently enlarged by legislative enactment to an additional burden to which the taxpayers had not consented. Paving District No. 5 v. Fernandez, 142 Ark. 21, 217 S. W. 795; Bourland v. Southard, supra.

The interest on deferred payment of assessments however is no part of the original cost of improvement, but is a legitimate charge for the use of the money of which the appellants have received the benefit. They might have paid the assessment of benefits against their property in cash and so avoided the payment of any interest which might be imposed. On this theory, the general rule has been formulated that the Legislature may authorize the collections of interest on postponed installments of assessments. In the case of Oliver v. Whittaker, 122 Ark. 291, 183 S. W. 201, it is stated, in effect, that the value of benefits must be fixed at the time they accrue to the property from the construction of the improvement, but interest >on the deferred installments becomes also a part, as it accrues, of the benefits, and payment thereof may be exacted. In that connection, the court said: “All the authorities which are brought to our attention seem to agree that the Legislature may authorize the collection of interest on postponed payments of assessments.” A number of our decisions restate and approve the rule announced in Oliver v. Whittaker, supra. Among these are Phillips v. Tyronza, etc., District, 145 Ark. 487, 224 S. W. 981; Skillern v. White, etc., District, 139 Ark. 4, 212 S. W. 90; Pfeiffer v. Bertig, 141 Ark. 531, 217 S. W. 791; Summers v. Cole, 144 Ark. 494, 223 S. W. 721.

The case of Turner v. Edrington, supra, relied on by the appellant as authority for the contention that municipal improvement districts have no authority to collect interest on installments of benefits, holds merely that, in the absence of statutory authority, such districts may not charge or collect such interest, but, as we have seen, when authorized by the statute, they do have this right, and it is not to be taken as a part of the cost of construction, nor effect an increase in the assessment of benefits within the meaning of the law. The interest charge on deferred payments of assessments may be imposed by the Legislature after the assessment has been made and the construction finished. Pfeiffer v. Bertig, supra.

Secondly, it is insisted that the act is unconstitutional for the reason that it attempts to take away from the assessors of the district who, under the terms of the general statute, serve for its life, the duty of making the assessment of benefits and give that power to the commissioners. The answer to this contention is that no provision for a new assessment of benefits is to be found in the act. The method provided by which the amount of the refunding bonds is to be ascertained is one in which no discretion is given, but involves an arithmetical calculation. In procedure (b) provided for in § 2, supra, the one adopted by the commissioners in the instant case, it is provided that the entire balance unpaid on the date of issue' of the refunding bonds or the assessment of benefits (unpaid) against each lot, block, parcel of land, and railroad track and right-of-way shall be the assessment of benefits against the same. From the stipulation it appears that the amount of the original issue was $107,000, payable serially on the first day of September of the years 1927 to 1937, both inclusive, bearing interest at the rate of five per cent, per annum from date until paid, interest payable semi-annually on said dates. Of this issue there remained outstanding $60,000 of which $9,500 was past due and unpaid with unpaid interest to the amount of $1,362.50. It was the balance of the unpaid bonds which was determined by subtracting the bonds which had been paid from the original issue, which had become the amount for which the refunding bonds are proposed to be issued; and the balance of the original assessment of benefits becomes the new assessment of benefits on the property of the district from which the bonds as refunded are to be paid.

In the third place, the appellant contends that the expenses provided for in the act in connection with the issue of the refunding bonds is an expense not in the minds of the property owners at the time the petition was signed and the assessment of benefits made. A sufficient answer to this contention is that in the instant case this expense (which likely is, and ought to be, insignificant) does not increase the assessment of benefits, for these remain proportionately the same as when the district was first organized, for the proposed issue of new bonds amounts exactly to the balance unpaid of the old issue. From the facts as stipulated, it is manifest that the application of the act in the instant case effects the consummation of a salutary purpose and brings to the property owners a method of relief by which their obligations may -be liquidated with relative ease and prevent the loss of their property.

It is our conclusion that the statute, is a valid enactment. The decree of the trial court is correct, and it is therefore affirmed.


author: Johnson, C. J.,

text:
    Browne v. Merchants’ National Bank of Fort Smith.
    4-3080
    Opinion delivered July 10, 1933.

      Cravens & Cravens, C. R. Barry and Hardin & Barton, for appellant.

      Daily & Woods and Geo. W. Dodd, for appellees.
   Johnson, C. J.,

(after stating the facts). It is first contended on behalf of appellant that the note executed by her on November 14, 1926, was materially altered before its delivery to the bank. Whatever alteration was effected in this note was done by Fred Browne, the husband of Sadie Browne, and innocently done. This note had been delivered by Sadie Browne to her husband, Fred Browne, for the use and benefit of the wholesale grocery company, of which he was president and general manager, to secure the debt of her husband to the grocery company in a sum in excess of $85,000. The title and beneficial interest in this note, of course, passed to the grocery company; it had the right to transfer and assign the security to whomsoever it chose. Any alteration made in the note by Fred Browne was innocently done.

In the case of McConnon v. Browne, 169 Ark. 954, 277 S. W. 539, this court said:

“The distinction between the effect of an innocent and fraudulent alteration is not recognized in all of the authorities, but we think that, according to the weight of authority, there is such a distinction, and that the true rule Is that, unless the alteration was fraudulently made, the obligee is not barred from his right of action on the original debt. ’ ’

The alterations made in this note by Fred Browne effectually carried out the intent of the maker at the time of its execution. At any rate, it cannot be' said that Fred Browne had any intention of defrauding his wife, the wholesale grocery company or the bank in effectuating this alteration. There can be no question under the uncontradicted facts in this case but that this alteration was effected by Fred Browne to carry out the intention of the parties at the time this mortgage and note were executed.

It is next contended on behalf of appellant that the indebtedness of Fred Browne to the wholesale grocery company was paid and satisfied iby Fred Browne on February 20, 1931. On this question it suffices to say that the trustee in bankruptcy made Fred Browne a party to this suit alleging an indebtedness of Fred Browne in a very large sum. No defense was interposed by Fred Browne to this cross-complaint. The chancellor found that Fred Browne was indebted to the wholesale grocery company in a sum in excess of $16,000. No appeal has been prosecuted by Fred Browne from this judgment of the court. This judgment was a part of the original indebtedness of Fred Browne to the wholesale grocery company. In addition to this, it is admitted by all that on the date this note and mortgage was transferred to the bank that Fred Browne*was owing to the grocery company more than $85,000. If Fred Browne effected the payment of his indebtedness to the wholesale grocery company after that time, it could not and should not impair the rights of the bank to the security held. The bank took a vested interest in this note and mortgage on January 27, 1931, and no subsequent contract between Fred Browne and the wholesale grocery company could impair it.

It is next contended on behalf of appellant that no assignment of the mortgage from the wholesale grocery company to the bank was effected. A complete answer to this argument is found in the letter from Fred Browne, president and manager of the wholesale grocery company, to the hank wherein the note was delivered to the bank. The note which was inclosed in this letter bore the blank indorsement of Fred Browne and also the indorsement of the grocery company by its president and manager, Fred Browne. “Equity regards that as done which ought to have been done.”

This court held in the early case of Richardson & May v. Hamlett and Wife, 33 Ark. 237, quoting from the syllabus:

“An agreement between the vendor and vendee, that the latter shall execute to the former a mortgage upon the land to secure payment of the purchase money will give the vendor or his assignee the same rights in equity as if the mortgage had been executed.”

This rule has been consistently followed by this court in all subsequent cases. We conclude therefore that the chancellor was correct in treating the mortgage in the instant case as duly transferred to the bank.

It is next contended on behalf of appellant that the pledge had been made by appellant to the grocery company for the specific purpose of securing the debt of her husband and was effected without consideration to her. Neither can we agree to this contention. The chancellor was warranted in finding that the debt to the grocery company was the joint obligation of Sadie Browne and her husband, Fred Browne. First, Sadie Browne acknowledged in the mortgage deed that she was indebted to the grocery company in the sum of $25,000. Secondly, the testimony shows that she bought much merchandise in person from the grocery company, and that it was charged to her and her husband’s account on the books of the company. At any rate, she executed and delivered the note and mortgage to the wholesale grocery company for a valuable consideration. On January 27, 1931, when the note and mortgage were transferred to the bank, the wholesale grocery company had a perfect and lawful right to transfer and deliver same to any third person. Appellant knew or should have known that this transfer might be accomplished. In other words, appellant knew or should have known that she was putting it in the power of the wholesale grocery company to transfer and deliver this mortgage and note to some third party, and after this is accomplished it does not lie in her month to say that this event could not be foreseen by her. In any view of the situation, appellant is estopped in a court of equity to assert a superior right to appellee.

No errors appearing, the. decree is in all things affirmed.


text:
    Missouri Pacific Railroad Company v. Crew.
    4-3069
    Opinion delivered July 10, 1933.

      R. E. Wiley and E. W. Moorhead, for appellant.

      E. P. Toney, A. Z. Golden and J. M. Golden, for appellee.
   Johnson, C. J.,

(after stating the facts). Appellant earnestly contends that the trial court committed reversible errdr in refusing to direct the .jury to return a verdict in its favor. This argument is based upon the theory that there is no evidence to show that Raymond Crew was struck or injured by a moving train on appellant’s line of road.

It is true, of course, that there is no positive testimony that Raymond Crew was struck or killed by a moving train, but the circumstances are such as to warrant this inference. The testimony introduced shows that the body of deceased was found upon the right-of-way and within a few feet of appellant’s track. The skull was crushed, the neck broken, and several ribs on the right side were injured, and the jury was fully warranted finding that the death of Raymond Orew resulted from a terrific blow from a moving train.

This court held in St. Louis-San Francisco Railway Company v. Crick, 182 Ark. 312, 32 S. W. (2d) 815, quoting from the second headnote:

“Where the body of deceased was found upon defendant’s right-of-way within a few feet of the track with his skull crushed and his shoulder crushed, with black oil smeared upon his hair and clothing, the jury were warranted in finding that he was killed by the defendant’s train.”

On the facts, the Crick case is full authority for the submission of this case to the jury. The fact is, the instant case is much stronger than the Crick case, because Thomas Crick, the injured party there, was determined to be a trespasser on the railroad company’s tracks, whereas in the instant case Raymond Crew was an invitee and had a perfect right to be at the flag station at the time he was killed. The facts and circumstances were such as to warrant the jury in believing that Raymond Crew was awaiting the arrival of a train to transport him to McGehee; that he had his railroad pass in his hand in preparation of boarding the train; that, because of the defective condition of the headlight on the engine and the excessive amount of steam flowing from the engine, the employees on the train did not and could not discover his presence, and, as a result thereof, operated said train against him, which resulted in his death.

It is next insisted that the court erred in giving and refusing to give to the jury certain instructions.

Instructions 1, 6, 8, 9 and 12, given on behalf of appellee, are conceded to be correct declarations of law, but it is said that there is no evidence to support them. As we have heretofore pointed out, the evidence was amply sufficient, to submit to the jury the questions as to whether or not a lookout was kept by the engineer and fireman, and whether or not it was possible for the engineer and fireman to keep such lookout with a defective headlight and a badly smoking engine. It is said that the evidence of the fireman and engineer to the effect that a constant lookout was maintained is undisputed, and therefore plaintiff’s instructions should not have been given. This contention is fully and completely answered by the engineer’s work sheet report made on the night of the injury. This report shows that the headlight on the engine was dim and in bad condition, and', in addition, that the engine was smoking badly. Appellant’s requested instructions which were refused by the trial court were fully covered by instructions given.

The facts of this case bring it well within the rule announced by this court in St. Louis, Iron Mountain & Southern Ry. Co. v. Gibson, 113 Ark. 417, 168 S. W. 1129, wherein we held: “The effect of our holding in the former opinion is that, where proof has been introduced by the plaintiff of an injury to a person by the operation of a train under such circumstances as to raise a reasonable inference that the danger might have been discovered and the injury avoided if a lookout had been kept, then the burden is shifted to the railway company to show that such lookout was kept.”

No error appearing, the judgment is affirmed.


author: Smith, J.

text:
    Howard v. Wasson.
    4-3070
    Opinion delivered July 10, 1933.

      Shinn & Henley, for appellant.

      M. A. Hathcoat, for appellee.
   Smith, J.

Appellants seek by this suit to have a claim for $1,500 allowed and classed, (under the provisions of act 107 of the Acts of 1927) as a preferred claim against the Citizens’ Bank & Trust Company, of Harrison, Arkansas, which institution is being liquidated as being insolvent by the State Bank Commissioner.

The case was heard in the court below upon an agreed statement of facts, from which we copy the following recitals:

“On the ............day of...................................., 1931, the plaintiffs, Fred W. Howard, A. Gr. McBride and E. B. Folse, who are all residents of the State of Louisiana, entered into an agreement for the purchase of certain lands in Boone County, Arkansas, from Ralph Jefferson. It was orally agreed between these parties that Jefferson would deposit a deed to the lands in the Citizens’ Bank & Trust Company, of Harrison, Arkansas, and the plaintiffs should remit the purchase price of the lands to the bank for payment to Jefferson upon the performance of certain conditions agreed upon 'by the parties.
“On August 11,1931, A. T. Hudspeth, who was at the time an active vice-president of the bank, sent to E. B. Folse a telegram reading as follows: ‘Wilson has put up his part of the money, five hundred dollars. And if you send me fifteen hundred, note and deed will be mailed at once.’’
“On August 12, 1931, Folse wired the following reply: ‘Remitting fifteen hundred dollars today.’

On August 15, Howard, McBride and Folse each remitted a check for $500, drawn on a bank in Louisiana, to Hudspeth, all of which were payable to his order, it being their intention that the proceeds of these checks should be applied to the payment of the purchase price of the land, and “these checks were by A. T. Hudspeth deposited, without the knowledge or consent of these plaintiffs, in the said Citizens’ Bank & Trust Company, of Harrison, Arkansas, on August 15, 1931, to his personal account, and caused to be issued to himself a certificate of deposit therefor.”

In addition to the stipulation as to the facts, a deposition was read in evidence to the effect that on August 12,1931, Hudspeth sent to Folse, at Bastrop, Louisiana, a telegram which, in substance, directed Folse to remit $1,500 either to the Bankers’ Trust Company or to the Union Trust Company, of Little Bock, Arkansas, for the account of the 'Citizens ’ Bank & Trust Company, of Harrison, Arkansas; but, as appears from the facts already stated, the remittance was not made in this manner. On the contrary, it was made directly to Hudspeth in the form of checks payable to his individual order.

On September 1, 1931, the Citizens’ Bank & Trust Company was taken over by the State Bank Commissioner for liquidation, at which time the personal account of Hudspeth was overdrawn.

Plaintiffs presented their claim to the State Bank Commissioner for allowance within the time and manner provided by law, and the same was disallowed either as a common or a preferred claim, and that action was later approved by the chancery court, and this appeal is from that action.

Section 1 of act 107 of the Acts of 1927 defines the persons who are designated as secured or prior creditors of insolvent banks which have been taken over for liquidation by the Bank Commissioner, and subdivision 4 of this section reads as follows: “A prior creditor shall be * * * (4) the owner of a special deposit expressly made as such in said bank, evidenced by a writing signed by said 'bank at the time thereof, and which the bank was not permitted to use in the course of its regular business.”

Appellants insist that they are secured or prior creditors within the terms of this subdivision 4, and that the writings herein set ont evidence a special deposit expressly made, which the bank was not permitted to use in the course of its regular business.

We do not concur, however, in the view that a deposit, either general or special, is shown by the testimony in the case. No doubt the plaintiffs intended to make a special deposit, but a deposit of that character was not made. Indeed, they made no deposit of any character. The deposit made was by Hudspeth individually, and there is no record in the bank showing that plaintiffs became creditors of the bank, either general or special.

There appears in the record a letter, written on the stationery of the bank, dated August 18,1931, from Hudspeth to Folse reading as follows:

“The deed we have is made to H. M. Walker, and I can get a deed from him or one from Mr. Jefferson, and save the recording fees on the deed made to Walker. Please advise me to whom you want the deed made and what consideration?
“Yours very truly,
“A. T. Hudspeth,
“Vice-President. ’ ’

It is insisted that Hudspeth, as vice-president of the bank,'was aware of the purpose of the plaintiffs, and that this knowledge on his part should be imputed to the bank, and attention is called to the letter from Hudspeth to Folse, written on August 18, 1931, set out above. In answer to this contention, it may be first said that this letter was not written until three days after Hudspeth had received checks, payable to his own order, and not to that of the bank, and had deposited them to the credit of his personal account. Moreover, this letter indicates that even then the deed had not been placed in the bank.

The court found the fact to be that, in the transaction stated, “A. T. Hudspeth was acting for himself, and not for said Citizens’ Bank & Trust 'Company,” and we think the testimony supports this finding of fact. Hudspeth advised Folse that, “if you send fifteen hundred,” the note and deed would be mailed, and that direction was followed.

The transaction was of no interest to the bank, and no showing is made that there was any prospect of profit to it, even though Hudspeth had not defrauded Folse and the associates of the latter by misappropriation of the checks to his own credit and account.

It was said, in the case of Little Red River Levee District No. 2 v. Garrett, 154 Ark. 82, 242 S. W. 555, that: “A corporation must necessarily act through agents, and the universal rule is that knowledge of an agent is ordinarily to be imputed to the principal; but there is an exception to that rule that such knowledge of the agent will not be imputed to the principal where the agent acts for himself or has a personal interest in the transaction, thus rendering it improbable that he will report his knowledge to his principal. Bank of Hartford v. McDonald, 107 Ark. 232, 154 S. W. 512. This exception to the general rule has been, in many instances, extended to eases where an officer of a corporation acts for another corporation. Under these circumstances, the officer is treated as having a personal interest in the transaction, and his knowledge is not to be imputed to the corporation which he serves. This exception, however, to the rule does not extend to instances where an officer of a corporation acts as its sole representative or agent Jn the transaction under review. The reason for the exception fails where the officer of the corporation is its sole representative, and especially where, as in the present case, the officer is the corporation itself, without accountability to any superior. It would be entirely beyond reason or justice to hold that a person acting as the agent of both parties could wrongfully transfer property of one of his principals to the other.”

At § 190 of the chapter on Banks in 3 R. C. L., page 564, appears this statement of the law: ‘ ‘ The cases hold that the act of the cashier, by which he appropriates exclusively to himself a gratuitous special deposit in the bank, is not am act done in the bank’s business, and within the scope of his employment. The custody of the deposit implies no act to be done, but only a mere continuance of possession until a return of the property is demanded. The cashier has nothing to do with reference to it except suffer it to remain in a safe place of deposit. Consequently, in taking it to himself, he is said to ‘step aside’ from his employment to do an act for his personal gain, regardless of the business for which he was engaged. Such an act is lacking both in the rendition of, and in the intent to render, any service to the employer. The cashier does not, as a matter of fact, act with the bank’s authority, and, furthermore, does not essay, or even profess, to act in its behalf. He represents nobody but himself. He throws off all allegiance to his master and takes the part of a common enemy to all concerned. He becomes the same as a stranger from without, who by robbery, burglary, or stealth deprives the bank of a special deposit; and the authorities hold that the bank is not chargeable with such a loss, in the absence of gross negligence, though it is liable if grossly negligent. Such a fraud, by a well-selected servant, duly supervised, is not to be imputed to the bank as its own fraud. The bank cannot be said to have stolen when there is on its own part no participation in the theft, no appropriation, and no intent to appropriate the property. Of course, if the bank derives profit or benefit from its servant’s speculation, it is liable.”

A well-considered case which supports the statement of law just quoted is that of Merchants’ Nat. Bank of Savannah v. Guilmartin, 88 Ga. 797, 15 S. E. 831, 17 L. R. A. 322. See also Greer v. Levee Dist. No. 3, Conway County, 140 Ark. 67, 215 S. W. 171.

Viewed in the light most favorable to appellants, it is disclosed by the testimony only that they contemplated that the bank would act as a gratuitous bailee in the discharge of their agreement with Jefferson, but the opportunity to perform even this service was not offered, because the individual whom the plaintiffs selected as their agent misappropriated the checks before they reached the bank, and the deposit thereof was made in the individual name of the payee in each of the checks. Had the checks been payable to the order of the bank, a different question would be presented which we are not required to discuss.

The decree is correct, and it is therefore affirmed.


text:
    Williamson v. Nixon.
    4-3158
    Opinion delivered July 10, 1933.

      Talley, Coulter & Talley and Will G. Akers, for appellants.

      Wayne W. Owen, for appellee.
   Smith, J.

The question presented on this appeal is whether The Daily Legal News, printed and published in the city of Little Rock, has become and is now a “newspaper” within the meaning- of § 6807, Crawford & Moses’ Digest.

In an opinion delivered on May 2, 1932, reported in 185 Ark., at page 748, 49 S. W. (2d) 371, under the style of Continental Life Insurance Co. v. Mahoney, it was held that this publication was not a newspaper within the meaning of § 6807, Crawford & Moses’ Dig-est, which section of the statute authorizes and directs the publication of certain legal notices in newspapers. After a review of the cases dealing with the subject, we declared the requirements which a publication must meet to be classed as a newspaper within the meaning- of the statute. The headnote in that case reads as follows: “A daily publication specializing in news relating to the courts and to business transactions, and having a $20 yearly subscription rate, but carrying no news of a general character, held not a ‘newspaper’ in which notice of foreclosure proceedings could be published, under Crawford & Moses’’ Digest, § 6807.” We there said: “We think the test in determining the question is whether or not the publication regularly carries the record of events occurring of general interest to the public as a whole, and those publications which do carry such items might be properly designated as newspapers, although some special purpose or class of happenings be the chief object to which the publication is devoted. The reason for the test we have suggested becomes apparent when the object for which notices are printed is considered, i. e., that they be given wide and general publicity, and publications cannot reasonably be expected to be generally read when they have no news of general interest, but are restricted to events of interest only to a few classes. There are numerous cases which support this view, among which are the cases cited, supra, and Beecher v. Stevens, 25 Minn. 146; Reagan v. Duddy, 25 Ky. Law Rep. 1664, 78 S. W. 430; Times Printing Co. v. Star Publishing Co., 51 Wash. 667, 99 Pac. 1040, 16 Ann. Cas. 414.”

At the time of the former appeal the annual subscription price of the publication was $20. We were then and are yet of the opinion that a subscription price so large would necessarily limit the number and character of the subscribers to the class of persons interested in the news items of a legal nature in which the publication specialized, and was an important circumstance to be considered in determining whether its circulation was general. The subscription price has since been reduced to $12, and it is now shown that the circulation has been materially increased since the time of the former appeal.

In addition, it is now made to appear that ‘ ‘ the publication regularly carries the record of events occurring of general interest to the public as a whole. ’ ’ A number of different issues of the publication are exhibited, and all appear to be of about the same character. For instance, in the issue of May 23,1933, the following news appears: An item relating to the 'Civilian Conservation Corps for Arkansas under a recent act of Congress and a call for physicians for that service; a half-column of social and society news, including meetings of various clubs and church societies; a list of motion picture shows in both Little Rock and North Little Rock; certain tabloid news from Washington respecting congressional legislation; brief items of general news of Little Rock; news from Chicago concerning the 1933 World’s Fair; river and flood news; an obituary column; report of a meeting of the North Little Rock city council; meetings of noon-day luncheon clubs; a social function held by the Little Rock Y. M. C. A.; sporting news; additional amateur sporting news; certain market reports; and a few other items of news. Other copies of the publication which are exhibited contain about the same character of news of a general nature.

We feel constrained to hold, in view of the enlarged news service which the publication now renders, that it has become and is a newspaper within the meaning of § 6807, Crawford & Moses’ Digest, as that section was construed on the former appeal.

We therefore hold that the publication is eligible to print in its columns the legal advertisements which may be legally printed in other daily papers, and the decree of the court below, holding to the contrary, is reversed.


author: Kirby, J.,

text:
    Texarkana v. James & Mayo Realty Company.
    4-3067
    Opinion delivered July 10, 1933.

      Willis B. Smith, for appellant.

      Frank S. Quinn, for appellees.
   Kirby, J.,

(after stating the facts). The statutes of the State' authorize cities of the first class to levy an occupation tax requiring any person, firm, individual or corporation, who shall engage in, carry on or follow any trade, business, profession, vocation or calling within the corporate limits of such city, to take out and procure a license therefor and pay into the city treasury such a sum or amount of money as may be specified for such license and privilege. Section 5 of article 16 of the Constitution of 1874; § 7618, Crawford & Moses’ Digest. See also 37 C. J. 181.

The State can levy an occupation tax on all persons engaged in the real estate business herein, but appellees insist that they are not subject to any such tax for engaging in the real estate business in the city of Texarkana because they don’t maintain offices or places of business in the city of Texarkana, Arkansas, although they do all other things necessary to be done in carrying on such business there, but maintain their places of business on the Texas side of the town.

The ordinance was not intended to license a place for carrying on a real estate business but the persons actually carrying on such business itself, and it is undisputed that the appellees were doing everything necessary to carrying on the business of real estate brokers (§ 2, act 142 of 1931) in the city of Texarkana, Arkansas, except that they had their places of business situated across the State line in Texas, where most of the negotiations for carrying on the business were consummated. It is the right to engage in the real estate business, the privilege itself, that is taxed, -regardless of whether the operatives live or maintain their offices or places of business in the city where the business is carried on.

It is true that the statute provides that no person, firm or corporation shall pay license fees or taxes mentioned in this act (§ 7618, Crawford & Moses’ Digest) in more than one city in this State, unless such persons maintain such place of business in more than one city. But a fair construction of this provision does not indicate that the license is not required to be paid by only those who have or maintain regular offices inside the city. It is the privilege of engaging in such business, the occupation, that is taxed, rather than the place or office for carrying it on.

Appellees deny that they are engaged in the real estate business in the city of Texarkana, Arkansas, within the meaning and intent of the occupation tax ordinance and the statute, (§ 7618, Crawford & Moses’ Digest), but each and all of them, except Mrs. Swindell, had taken out and procured a license from the Arkansas Real Estate Commission under act 148 of 1929 as amended by act 142 of 1931 for engaging in the real estate business in the State of Arkansas. These statutes provide that no recovery may be had by any broker or salesman in any court in this State in a suit to collect a commission due him unless he is licensed under the provisions of the act and such facts are stated in the complaint.

The conduct of business in the city of Texarkana, Arkansas, by appellees brings them easily within the terms of the definition of a real estate broker as provided in § 2 of act 142 of 1931. There a person who does any of the things specified in said definition in the carrying on of his business comes within the terms of the statute and ordinance, and the undisputed testimony shows the appellees were engaged in the real estate business in the city of Texarkana, Arkansas, in violation of the ordinance requiring the payment of an occupation tax for carrying on such business. The person carrying on the business of a real estate broker or dealer need not do all the things mentioned as constituting or defining such broker within the limits of the city in order to become liable to the payment of an occupation tax therein.

In Blytheville v. Webb, 172 Ark. 874, 290 S. W. 589, under the terms of a city ordinance imposing a license tax on dealers engaged in selling oil and gasoline within the city limits, a wholesale dealer in oil and gasoline who maintained h_s place of business without the city limits but caused his trucks to be driven into the city for sale and delivery oi oil and gasoline therefrom was held liable for the tax, regardless of the fact that his storage tanks for loading gasoline and oil to be carried into the city were entirely outside the city limits.

The appellees could be real estate brokers within the meaning of the ordinance and statute and violate its terms and become liable to its penalty, although they did not live in the city of Texarkana, Arkansas, nor have a place of business there. See also Town of Winston v. Taylor, 99 N. C. 210, 6 S. E. 114; City of Memphis v. Battaile, 6 Heisk. 524, 24 Am. Rep. 285; Arkadelphia Lumber Co. v. Arkadelphia, 56 Ark. 370, 19 S. W. 1053.

It was held in Texarkana v. Taylor, 185 Ark. 1145, 51 S. W. (2d) 856, that a nonresident attorney, having no office in the city of Texarkana, Arkansas, was not subject to the license tax imposed in the ordinance upon practicing attorneys, since he was only practicing law incidentally therein and subject only to payment of the fee for enrollment of nonresident attorneys as provided by the statute, § 605, Crawford & Moses’ Digest. Said statute has no application in the instant case, real estate dealers not being included within its terms.

It follows from what has been said that the court erred in rendering its decree, which is reversed, and the cause remanded with directions for further proceedings in accordance with this opinion and not inconsistent with the principles of equity.

Johnson, C. J., disqualified and not participating.


author: Kirby, J.

text:
    Home Life Insurance Company v. Wasson.
    4-3073
    Opinion delivered July 10, 1933.

      Buzbee, Pugh & Harrison, for appellant.

      Bridges, McGaughy & Bridges, for appellee.
   Kirby, J.

This is the second appeal of this case, a sufficient statement of which appears in the opinion on the former appeal, Home Life Ins. Co. v. Taylor, 186 Ark. 768, 55 S. W. (2d) 929. The court reversed the judgment and remanded the cause with directions to enter judgment in favor of the Home Life Insurance Company for the full amount of the collection which had been made by the Bank Commissioner on certain paper which was a prior claim, for costs, etc.

The chancellor entered a decree pursuant to the mandate, and the appellants for the first time during the entire proceedings asked orally that it be allowed interest on the amount collected prior to the filing of the intervention ($35,194.29) from the day of the filing of the intervention and that the. entire decree bear interest from date until paid. The court refused to allow interest on the claim and on the judgment, and the sole question raised in the appeal is whether interest can be paid on a preferred claim against an insolvent bank.

Appellee insists that the question was not presented to the lower court on the first hearing nor to this court on the first appeal, and also that interest cannot be recovered on a preferred claim against an insolvent bank in the hands of the Bank Commissioner.

It is true that the transcript does not show that the appellants ever requested or demanded that interest be allowed on their claim until the decree of the chancery court was entered pursuant to the mandate of the Supreme Court issued after the first appeal of this case, at which time an oral request was made. None was made in fact in the appellants ’ claim filed with the Bank Commissioner, and no such request was made in the intervention filed by the appellants in the first instance, nor in their amended intervention, and no such request was made in the general prayer for relief.

It may be that this court could well refuse to grant any relief on that account. Hall v. Potter, 81 Ark. 476, 99 S. W. 687; Mutual Relief Ass’n v. Weatherly, 172 Ark. 991, 291 S. W. 74; Laflin v. Brooks, 180 Ark. 1167, 22 S. W. (2d) 169; Wolf v. Alexander Film Co., 186 Ark. 848. It is not necessary, however, to do this, since the matter can be decided on its merits and is controlled by the opinion of this court in Taylor v. Corning Bank & Trust Co., 186 Ark. 691, 48 S. W. (2d) 1102. On the first appeal of that case reported in 183 Ark. 757, 38 S. W. (2d) 557, the court held the claim should be allowed as a preferred claim, but awarded no interest. Afterwards the chancellor in a decree on the remand of the cause allowed interest as demanded by the Corning Bank & Trust Company and the Bank Commissioner appealed. The court held that interest could not be recovered, saying: “While this claim is a prior or preferred claim, every other depositor has the same right as a depositor holding a preferred claim, except the right to be paid first, but, unless the banking institution or commissioner has sufficient funds to pay all the depositors, no interest can be paid on any claim.”

It was further said there: ‘ ‘ The general rule is that, unless there are sufficient funds to pay all the depositors, no depositor is entitled to interest on his claim. * * * A depositor in a bank, which has becorfie insolvent, is not entitled to interest on his claim unless the assets are sufficient to pay all the depositors.”

The court held there also that the statute, § 7360, Crawford & Moses’ Digest, allowing interest on judgments, was not applicable to the question of whether interest was payable on a preferred claim against an insolvent bank in the hands of the Bank Commissioner.

There are no allegations in the complaint or facts shown which would take this case out of the rule, no showing being made that the funds of the insolvent bank were sufficient to pay all depositors.

It follows that no error was committed in the refusal to allow judgment for interest on the preferred claim, and the decree is affirmed.


author: Humphreys, J. Smith, J.,

text:
    Pacific Mutual Life Insurance Company v. Harris.
    4-3039
    Opinion delivered June 12, 1933.

      Dillon & Robinson, Owens & Ehrman, J. M. McFarlane and John M. Lofton, Jr., for appellant.

      J. H. Lookadoo, for appellee.
   Humphreys, J.

Appellee brought separate suits against appellants in the circuit court of Clark County to recover the amount of the indemnity provided in each policy for the death of her husband, through external, violent and accidental means.

Each appellant defended upon two grounds: first, that the. policies had lapsed for the nonpayment of premiums; and, second, that the insured’s death was not accidental. The causes were consolidated for the purposes of trial, and, at the conclusion of the testimony, the trial court instructed the jury to return a verdict in each case for the amount sued for, penalty, attorneys fee, and costs, over the objection and exception of appellant, and from the verdicts and consequent judgments an appeal has been prosecuted to this court.

At the time the policies were issued, the insured, a negro, was working for the Missouri Pacific Railroad Company in section gang No. 52, and when he received the policy, he gave each of the appellants an order on the Missouri Pacific Railroad Company to deduct the premiums from his wages and pay same to the appellants. The Missouri Pacific Railroad Company deducted premiums down to and through the month of June, 1927, but failed to make the deduction in July, August and September, because, according to appellants’ admission in the course of the trial, the Missouri Pacific Railroad Company had not been asked to pay the premiums for those months. The insured was shot in the back while getting in a box car containing merchandise in the yard at Gurdon on October 23, 1927, in which yard he was then employed. He was working in section gang 52 then under the name of H. A. Harry through an error of the paymaster in ¡making up the payroll, but there is no question about him being the same person who was insured. In the meantime he had been transferred for a while to section gang 11, then to section gang 4, then back to section gang 52. After he was shot by the' special agent of the Missouri Pacific Railroad Company, the special agent had the car moved down to the station, where it was entered by the town marshal of Gurdon. The special agent stated that he had shot him. The insured had been shot five times, one shot at least entering his back and passing entirely through his body. His body was lying in the extreme end of the car. A knife supposed to belong to him was a short distance from his body, and it appeared that he had used it to open a box of cakes, out of which he had been eating. A pistol supposed to belong to him was found in the doorway with an empty cartridge in it. A disinterested witness stated he had heard and seen every shot that was fired by the sound and flash it made, and that every one of them was fired from the same place and in the same direction. An inquest was held, and the special agent was exonerated. None of the evidence introduced at the inquest appears in this record. The special agent did not testify in the case.

Based upon this undisputed testimony, the trial court instructed verdicts against appellants on the theory that it was their duty to collect the premiums on the orders which they had procured from the insured, and that their failure to do so did not lapse the policies, and that no justification was shown for the homicide.

The first finding was correct because the insured had worked continuously for the railroad company after he gave the order and earned sufficient money to pay the orders had they been presented. It was admitted in the course of the trial that, if the railroad company had had the orders, it would have paid the premiums. The case of Missouri Life Insurance Company v. Walker, 67 Ark. 147, 53 S. W. 675, cited by appellants, is not in point. It was stated by the court in that case that it was not clear that the railroad company had money in its hands out of which to pay the last premium, and therefore that the insurance company was not required to notify Walker of the failure to pay the order because he knew he left no money with the company to pay it and must have known, without notice, that the order had not been paid. Not so in the instant case, but, on the contrary, it is admitted in the record that if the insurance- companies had presented the orders, they would have been paid. It is a case of negligence on the part of appellants to protect themselves when they had an opportunity to do so through the method devised by them to collect their premiums, and they cannot take advantage of their own neglect to cancel the policies.

The second finding was correct also. The killing was admitted, and the burden was thereby cast upon appellants to show that the killing was justified. This court said in the case of Metropolitan Casualty Insurance Company v. Chambers, 136 Ark. 84, 206 S. W. 64: “It is the settled law in this State that proof of death of an insured from injuries received by him raises a presumption of accidental death within the meaning of an insurance clause insuring against injury by external, violent and accidental means, and this presumption will continue until overcome -by affirmative proof to the contrary on the part of the insurer. ’ ’

In the case of Ætna Life Insurance Company v. Little, 146 Ark. 75, 225 S. W. 298, this court defined an accidental killing within the meaning of the terms of these and like policies, as follows: “If a result is such as follows from ordinary means, voluntarily employed, in a not unusual or unexpected way, it cannot be called a result effected by accidental means; but if, in the act which precedes the injury, something unforeseen, unexpected, unusual occurs which produces the injury, then the injury has resulted through accidental means. ’’

According to this record, the special agent attacked and killed the insured because he thought he was robbing a car. The insured was working in the yard and may have had authority to enter the car and was killed while in the act of entering it. If the pistol at the door belonged to the insured, it was not shown that he used it or attempted to use it or the knife on the special agent. The empty cartridge may have been in the pistol all the time. The only use made of the knife was to open a cake box. He was eating cakes at the time, and none of these things justify homicide.

No error appearing, the judgment is affirmed.

Smith, J.,

(dissenting). Inasmuch as the judgment here appealed from was rendered upon a verdict returned under the direction of the court, we must test that action by giving appellants’ testimony its highest probative value, with all inferences reasonably deducible therefrom. Therefore, the question presented for our decision is not whether the testimony is legally sufficient to support a verdict in appellee’s favor, but is rather whether, viewed in the light most favorable to appellants, it would have supported a verdict in their favor. If, under the testimony so viewed, a verdict could have been returned for appellants by the jury under proper instructions, then the judgment appealed from should be reversed for the error in directing a contrary verdict.

It may be first said that it is an undisputed fact that the premiums necessary to keep the policies in force up to and until October 22d or 23d, 1927, the date of the insured’s death, were not paid, yet the insurance companies are required under the judgment here appealed from to pay policies upon which they had not received the premiums necessary to keep them in force.

The theory of the majority, as I understand the opinion, is that the insurance companies must pay the policies, although they did not receive. the premiums, because they should not be heard to say that the premiums were not paid.

It is an undisputed fact that all of the insured’s wages, except those earned during the last fifteen days of his life, were paid to the insured himself, and he, of course, knew that the premiums were not being paid out of his wages. The last wages earned by the insured were paid after his death to his widow.

The premiums were paid by the railroad paymaster down to and through the month of June, 1927, as the majority say, but, as the majority also say, there were no payments of premiums during the months of July, August and September. Now, although the insured himself drew his wages for these three months and appropriated them to his own use, the trial court declared, as a matter of law, that the policies continued in force because the railroad company should have paid the premiums to the insurance companies and should not have allowed the insured to draw the entire amount of his wages.

Now, the fact is that the pay orders which the railroad company received were executed by Aaron Harris, and the premiums were paid to the insurance companies so long as the name of Harris remained on the railroad payroll. There were two pay days each month, the first and the fifteenth. The pay orders executed by Aaron Harris were paid until and including the second pay day in June.

At the time the policies were issued and the pay orders were signed Harris, the insured, was working on section gang No. 52 of the Arkansas Division, which is located at Grurdon. He took a voluntary lay-off in the latter part of June, and then went to work on extra gang No. 4, which was worldng between Hope and Nashville. After working on the extra gang for about ninety days Harris returned to gang 52, but he went to work, not as Aaron Harris, but as H. A. Harry, and he failed to notify either the insurance companies or the paymaster of the railroad that H. A. Harry was Aaron Harris hack on the job.

The nndisprtted testimony shows that there are 101 section gangs on the Arkansas division of the Missouri Pacific Railroad, and many times that number on the entire system. Separate payrolls are kept for each gang, and if a man transfers from one gang to another the paymaster has no way of knowing that a man with a similar, or even identical, name, appearing on one section gang, has previously been employed on another gang, unless he is advised of that fact. In the absence of advice on the subject the paymaster could not be expected to know that H. A. Harry was Aaron Harris.

The trial court in directing a verdict for the plaintiff gave the following reason for that action: “It developed that during his life and after the policies were taken out he was transferred to another section, and it appears from the record in this case that about the time of that transfer the companies ceased receiving payments on the premiums, notwithstanding the fact that the railroad company had full authority, and had been authorized by the employee, who was the insured, to pay to these respective defendants the sum agreed on as premiums for the respective policies. Now, in addition to that, the evidence shows that the insured earned each month sufficient money to make these payments out of his pay to the companies. The court holds that it was'the. duty of the companies to collect the premiums on the order which they had procured from the insured to the railroad company, and that their failure to do it did not cause a lapse of the policies. The policies were still in force and effect just as if they had done it. ’ ’

I think this action was erroneous, because the evidence showed that it was customary for employees who had signed pay orders to notify the paymaster of changes in employment, in order that the deductions might be continued. Harris, not only did not notify the railroad company that he and Harry were one and the same person, but, on the contrary, he drew down all the pay due Harry. He could not have.-been under the apprehension that his premiums were being paid by the railroad company when all his wages were being paid to him.

Each of the policies sued on provided that the insurance should forfeit without notice to the insured in the event of the nonpayment of the premiums, and each policy provided that the action of the employed in deducting the installments of premiums from the wages was entirely at the risk of the insured.

There is no question in this case about the pay orders having been delivered to the railroad company. They were at all times in the possession of the railroad company, and were regularly and properly honored by the railroad company so long as the records of the railroad company showed that the insured Harris was their employee. The railroad official having the pay records in charge testified that deductions were made pursuant to the pay orders so long as their records showed Harris to be in their employ, but payments were not made after June for the reason that the pay records did not show Harris to be an employee.

"Why the insured returned to gang 52 and had his name placed on the payroll as Harry, instead of Harris, is not explained. It appears to me that it would not have been unreasonable for the jury to have found, had the case been submitted to the jury, that Harris employed this method to defeat and annul his pay order, in view of the fact that he drew down his full pay during the months of July, August and September. In any event, I think that this was not a proper case for a directed verdict.

It is to be remembered that the policies sued on are accident policies, and that a recovery was prayed upon the ground that the insured’s death was effected by accidental means. The insured was a negro section hand, and there is no intimation that he had any duty to perform which required or authorized him to enter freight cars in the nighttime. Several boxes in this freight car had been broken open. One of these boxes contained cakes, and the insured’s mouth was filled with cake when his body was found. Near the body was an open knife and a pistol, which had been fired one time, and these were shown to have belonged to the deceased. It occurs to me that these facts made an issue as to whether the insured’s death was accidental, if they do not conclusively show the contrary to be true.

I am therefore of the opinion that the case should have been submitted to the jury upon two questions, first, whether the premiums had been paid, and second, whether the death of the insured was accidental.

I am authorized to say that Justices McHaney and Butler concur in the views here expressed.


text:
    Stanley v. State.
    Crim. 3837
    Opinion delivered June 12, 1933.
    J. P. Clayton and Cravens, Cravens & Friedman, for appellant.

      Hal L. Norwood, Attorney General, and John H. Caldwell, Assistant, for appellee.
   McHaney, J.

Appellant was convicted of murder in the second degree on a charge of murder in the first degree for the killing of his nephew, Gordon Stanley,, and sentenced to five years in the penitentiary. Four errors are assigned and now urged for a reversal of the judgment — two relating to requested instructions refused by the court and two relating to instructions given on the court’s own motion over his objections and exceptions.

1. The first relates to requested instructions Nos. 10 and 12 refused. It is said that No. 10, “together with requested instruction No. 12, would have told the jury with reference to the plea of self defense of appellant that it was only necessary for the danger of attack from deceased to have appeared to the appellant to make it necessary to take deceased’s life. In other words, that it need not appear to the jury that there was any danger, but that the appellant would have been justified in killing in self defense if it appeared to him, acting without fault or carelessness, that there was such, danger.” These requests were fully covered by instructions 16 and 17 given by the court, and it was not necessary or proper to multiply instructions on the same subject. Moreover, we have been unable to find any evidence in the record to support a plea of self defense or any instructions on the subject. The undisputed facts show that appellant killed the deceased without justification. ‘ ‘Justifiable homicide is the killing of a human being in necessary self-defense, or in defense of habitation, person or property, against one who manifestly intends or endeavors, by violence or surprise, to commit a known felony.” Section 2369, Crawford & Moses’ Digest. Neither at the time of the killing, nor at any other time, did the deceased attack or threaten the person of appellant, nor does it appear that he intended or endeavored to commit a felony against appellant’s habitation, person or property. We do not review the evidence, as no useful purpose could be served thereby. It is sufficient to say that a plea of self-defense was not supported by any evidence.

2. It is next urged that error was committed in refusing to give requested instruction No. 14, which would have told the jury that the. fact that appellant had been indicted by the grand jury was not to be considered as evidence against him. While it is entirely proper to give such an instruction (Worthem v. State, 82 Ark. 321, 101 S. W. 157; Latourette v. State, 91 Ark. 65, 120 S. W. 411; State v. Fox, 122 Ark. 197, 182 S. W. 906), its refusal would not be prejudicial and would not justify a reversal, especially where instructions are properly given on the presumption of innocence, the burden of proof and reasonable doubt, as is the fact in this case.

3. The third assignment complains of the giving of instruction No. 16 relating to the law of self-defense, in that, in order for such plea to be available to him, he must have in good faith endeavored to decline further contest. What we have already said disposes of this assignment. There was no contest, — none to further decline. So, whatever error there was in this connection was in giving any instruction at all on self-defense, — an error in appellant’s favor for which he cannot complain.

4. Finally it is said the. court erred in giving instruction No. 20. It follows: ‘ ‘ The law, in order to convict, does not require that the guilt of the accused shall be made out to a mathematical or absolute certainty, but it does require that it be made out to a moral certainty, which is a certainty that convinces and directs your ■understanding and satisfies your reason and judgment that the defendant is guilty.” The complaint made of this instruction is that it did not conclude with the words “beyond a reasonable, doubt.” There is no merit in this criticism. Instruction No. 19 immediately preceding was on presumption of innocence and reasonable doubt, and No. 20 was a further explanation of what was required to be convinced of guilt beyond a reasonable doubt, and was as favorable to appellant as the law warrants.

Affirmed.


text:
    French v. State.
    Crim. 3839
    Opinion delivered June 19, 1933.

      Oscar E. Ellis, for appellant.

      Hal L. Norwood, Attorney General, and Pat Mehaffy, Assistant, for appellee.
   Johnson, C. J.,

(after stating the facts). The first insistence is that the trial court erred in overruling appellant’s motion for a continuance.

It is the well-settled law in this State that continuances are left to the sound discretion of the trial court, and that a refusal to grant a continuance is never ground for a new trial, unless it clearly appears to have been an abuse of such discretion and manifestly operates as a denial of justice. Allison v. State, 74 Ark. 444, 86 S. W. 409; Wood v. State, 159 Ark. 671, 252 S. W. 897.

From the statement of facts it appears that the only material testimony offered to be established by the absent witness was that the still which was found by the officers was located one-half mile distant from appellant’s home. The witness John Rogers, who was present at the trial, testified to this same fact, therefore, the evidence of the absent witness would have been cumulative only. For this reason, if no other, the trial court was fully warranted in overruling the motion for continuance.

It is next insisted that the trial court erred in not directing a verdict of not guilty in behalf of appellant. This is based upon the theory that the still which was found by the officers had no worm attached thereto.

If juries and trial courts could not convict defendants for possessing a still merely because some necessary part thereof had been detached, future convictions would certainly be imperiled. It is for the jury to determine whether or not the defendant was in possession of a complete still, and they should take into consideration all the facts and circumstances in evidence to determine this fact, and, when they have done so, trial courts and this court will not disturb their findings merely because some material part of the still was detached and not found.

It is next insisted on behalf of appellant that he did not receive a fair and impartial trial because Ulyless Lefevers, an accepted juror in said case, was biased and had expressed an opinion before the trial that defendant was guilty. The trial court heard testimony on this question of fact and decided that the juror was not biased and had not expressed an opinion before the trial.

This court held in Hooper v. State, ante p. 88, as follows : ‘ ‘ The trial court heard evidence on this question and decided against the contention of appellant. The testimony was in conflict. The finding of the judge on questions of fact properly submitted to him is as conclusive here as the finding of a jury.” Citing a number of cases.

Lastly, it is contended that this case should be reversed because the record does not reveal the names of all the bystanders who were summoned to complete the jury. The record does show the names of all jurors accepted in this case.

Section 6378 of Crawford & Moses’ Digest provides: “If a jury cannot be obtained out of said panel of regular petit jurors, bystanders shall be summoned to complete such jury, and the oath mentioned in § 6375 shall be administered to said bystanders, and the record sháll contain the names of said bystanders.” This section of the statute is cited as authority for appellant’s contention. “The record shall contain the names of all bystanders, etc.,” is directory merely and not mandatory.

At any rate, we cannot conceive appellant’s rights being jeopardized by noncompliance with the quoted section of the statute. It is certainly not an irregularity about which he should complain. In a long line of decisions this court has held criminal cases will not be reversed for nonprejudicial errors. Middleton v. State, 162 Ark. 530, 258 S. W. 995; Perkins v. State, 168 Ark. 710, 271 S. W. 326.

No prejudicial errors appearing, the judgment is affirmed.