author: Hart, C. J., McHaney, J., McHaney, J.

text:
    Louisiana Oil Refining Company v. Rainwater.
    Opinion delivered February 23, 1931.

      Barber eg Henry and Troy W. Leíais, for appellant.

      Rose, Hemingway, Cantrell & Loughborough, for appellee.
   Hart, C. J.,

(after stating the facts). Section 1735 of Crawford & Moses’ Digest is § 32 of the act of April 32, 1869, which provides for the formation and regulation of business corporations. It provides that the president and secretary of every corporation organized under the provisions of the act shall annually make a certificate showing the condition of the affairs of the corporation in the manner provided in the section. Section 1726, which ivas a part of the act of May 6, 1909, provides that if the president or secretary of any such corporation shall neglect, fail or refuse to comply with the provisions of § 1715, he shall be liable to- an action founded on the statute for all debts of such corporation contracted during the period of any such neglect or refusal.

It is conceded that, if these provisions of the Digest are still in force, Ihe president was liable because the default is admitted. Our cases hold that where there has been a default in making the reports required by the statute during a particular time, and during that time a debt is contracted, there is liability to a creditor as upon contract. It is said that the object of the statute is to require corporations to make such a public showing .of their affairs as will enable those dealing with them to determine whether they can safely give them credit, and that the mischief at which it is aimed is not done unless the credit is actually given during the period of default. Griffin v. Long, 96 Ark. 268, 131 S. W. 672, 35 L. R. A. (N. S.) 855, Ann. Cas. 1912B, 622; Hughes v. Kelley, 95 Ark. 327, 129 S. W. 784; McDonald v. Mueller, 123 Ark. 226, 183 S. W. 751; and Taylor v. Dexter, 126 Ark. 122, 189 S. W. 1060.

It is sought to uphold the judgment, however, on the ground that these sections of the Digest have been repealed by act 250, passed by the Legislature of 1927, providing for the formation of corporations and the regulation thereof. Acts of 1927, p. 854.

It is a well-settled principle of statutory construction that repeals by implication are not favored. A statute may, however, be repealed by the express provisions of a subsequent statute, or by implication when the provisions of the earlier and later statutes are repugnant to each other and irreconcilable, or when the subsequent statute covers the whole subject-matter of the former and is manifestly intended as a substitute for it. This rule is so well settled that only a few of our cases on the subject need be cited. Bank of Blytheville v. State, 148 Ark. 504, 230 S. W. 550; Ouachita County v. Stone, 173 Ark. 1004, 293 S. W. 1021; and State v. Standard Oil Company of Louisiana, 179 Ark. 280, 16 S. W. (2d) 581.

It is the contention of counsel for appellees in the present case that the act of 1927 covers the whole subject of the earlier act relating to the formation and regulation of business corporations and embraces numerous new provisions. It is insisted that the act plainly shows that it was intended not only as a substitute for the earlier act but to cover the whole subject of the formation of business corporations and to prescribe the only rules in respect thereto. Hence it is contended that it operates as a repeal of all former statutes relating to the formation and regulation of business corporations, even if the former act or some of its provisions are not in all respects repugnant to the new act. A careful comparison of the earlier act with the later one does not, in our opinion, show that the later act was intended to be a revision of and substitute for the earlier one. As we have already seen, under the construction placed upon the provisions of §§ 1715 and 1726 by this court, the Legislature had a definite purpose in enacting this statute. It is true that the later statute is very comprehensive. It contains 57 sections and provides in detail for the manner of incorporating- business corporations, defines their corporate powers, regulates the manner for issuing stock, and the powers of directors and other matters deemed necessary for the management of such corporations, but it contains no provision looking to the filing of an annual report showing the condition of the corporation so that creditors may be advised of the condition of their affairs and intelligently determine whether they can safely give them credit. The provisions of the earlier statute looking to this end fits in with the aim and scope of the later statute just as well as they do with the earlier one. There is nothing to indicate that .it was the intention of the Legislature to repeal them. They are not in any wise inconsistent with the scope and purposes of the later act and serve the same purpose, so far as that act is concerned; as they did with the earlier act.

In this respect, it is different from the act which was held to be repealed in the ease of Ouachita County v. Stone, 173 Ark. 293 S. W. 1021, relied upon by counsel for appellee. In that case, the provisions of the earlier act were wholly out of harmony with the scope and purposes of the later act, and for that reason the court held that the earlier act was repealed by the provisions of the later one. When the scope and purposes of the later act in that case were considered, there seemed to be no place for the provisions of the earlier act, which was considered repealed.

We think the present case is more like that of Bank of Blytheville v. State, 148 Ark. 504, 230 S. W. 550. Therefore, we are of the opinion that the court erred in overruling the demurrer to the answer, and for that error the judgment will be reversed, and the cause will be remanded for further proceedings according to law7 and not inconsistent with this opinion.

McHaney, J.,

(dissenting). I cannot agree w7ith the opinion of the majority for two reasons. The plain provision in § 1715, Crawford So Moses’ Digest is that “The president and secretary of every corporation organized under the provisions of this act shall annually make a certificate showfing the condition of the affairs of such corporation,” etc. “This act” refers of necessity to the act of April 22, 1869, of which'§ 1715, Crawford So Moses’ Digest is § 12 and § 1726, Crawford So Moses’ Digest is § 21. In 1927 the General Assembly passed act 250, p. 854 Acts 1927* entitled, “An act to provide for the formation of corporations, the regulation of corporations and for other purposes.” This act establishes a'wholly different system for the formation and regulation of corporations from that established by the act of April 12, 1869. The Rainwater-McCarthy Company, of wdiich appellee was president, was organized under the act of 2927, it being the onty act under which a corporation of this kind could be organized, as by § 57 all lau7s in conflict are repealed, and the act of .1869 was in conflict. The act of 1927 is not amendatory of the act of 1869, but is in substitution thereof, providing a new and wholly different system, which does not include or embody §§ 1715 and 1726 of the Digest. Therefore, when § 1715 provides that “the president and secretary of every corporation organized under the provisions of this act shall file the report, it. necessarily excludes corporations organized under the provisions of any other act not making a similar requirement. The corporation of which appellee was president, not having been organized under the provisions of “this act,” — act of 1869 — but under the act of 1927, is not affected by the provisions of §§ 1715 and 1726 of Crawford & Moses’ Digest, and its officers were not required to file the report therein required, nor •were they subject to the penalty provided for a failure so to do.

I am furthermore of the opinion that those sections of the Digest have been repealed by implication or substitution by the act of 1927. It takes up the -whole subject-matter of the formation and regulation of corporations anew, and provides a wholly different system, both as to formation and regulation. As we said in Cordell v. Kent, 174 Ark. 503, 295 S. W. 404, cited with approval in State ex rel. Atty. Gen. v. Standard Oil Co. of La., 179 Ark. 208, 16 S. W. (2d) 581: “Where the Legislature takes up a whole subject-matter anew, covering the whole ground, revising the whole subject-matter of a former statute, and evidently intending to enact a substitute, the old statute is repealed, although the new statute contains no express words to that effect.” See also cases cited in State ex rel. v. Standard Oil Co., supra, I am of the opinion that that is exactly what the Legislature did in enacting the 1927 statute, and that §§ 1715 and 1726 are repealed by substitution.

Those sections never served but one purpose, to entrap the unwary president and secretary who, uuthoughtedly or ignorantly, failed to file such report, which enabled some creditor who never extended any credit on the strength of such a report or refused credit for the lack of same, to recover a debt due by the corporation from them.

I think the judgment should be affirmed.

Mr. Justice Butler joins in the dissent.

Opinion on rehearing delivered March 30, 1931.

McHaney, J.

After a careful consideration of the briefs of counsel tin the petition for a rehearing, and of the original briefs, a majority of the court has reached the conclusion that a rehearing should be granted. "We, of course, recognize the general rule, of statutory construction, as stated in the original opinion, that repeals by implication are not favored. But, as there also stated: “A statute may, however, be repealed by the express provisions of a subsequent statute, or by implication when the provisions of the earlier and later statutes are repugnant to each other, or when the subsequent statute covers the whole subject-matter of the former, and is manifestly intended as a substitute for it.” See cases there cited. As stated by Mr. Justice Field in United States v. Tynen, 11 Wall. (U. S.) p. 88, and quoted with approval on rehearing in Mays v. Phillips County, 168 Ark. 829-833, 279 S. W. 366: “When there are two acts on the same subject, the rule is to give effect to both if possible; but if the two are repugnant in any of their provisions, the later act, without any repealing clause, operates, to the extent of the repugnancy, as a repeal of the first, and, even where two acts are not in express terms repugnant, yet if the later act covers the whole subject of the first, and embraces new provisions, plainly showing that it was intended as a substitute for the first act, it will operate as a repeal of that act.” And this is true, even though the old act contains “provisions not embraced in the new. ” Wilson v. Massie, 70 Ark. 25, 65 S. W. 942; Chicago, R. I. & P. Ry. Co. v. McElroy, 92 Ark. 600, 123 S. W. 771; Eubanks v. Futrell, 112 Ark. 437, 166 S. W. 172; Babb v. El Dorado, 170 Ark. 10, 278 S. W. 649; State v. White, 170 Ark. 880, 281 S. W. 678. The difficulty is not in stating- the rule, as it appears to be one of universal application, but in applying it to a given case.

The Rainviater-McCarthy Motor Company was organized as an Arkansas corporation on October 13, 1928, and was dissolved December 14,1929. It was therefore in existence little more than a j^ear. Appellant sold it certain merchandise between October 8 and December 11,1929, for which judgment is soug’ht in this case. Other facts are stated in the original opinion.

The act under which the Rainwater-McCarthy Motor Company was organized is No. 250 of the Acts of 1927, p. 854. It is entitled “An act to provide for the formation of corporations, the regulation of corporations and for other purposes.” The prior corporation act, the one under which a corporation of this kind would have been organized, but for the act of 1927 or some similar enactment, is the act of April 12, 1869, entitled, “An act to provide for the creation and regulation of incorporated companies.” It will be noticed that the titles of the two acts are substantially the same, the one for the “formation” and “regulation” and the other for the “creation and_ regulation” of corporations. The purpose of both acts as stated in their titles is the same. They refer to the same identical subject-matter. Any person reading the two titles would know from a glance at the titles alone that the Legislature was dealing’ with the same subject-matter and was providing a new and different system for the “formation” or “creation” and “regulation” of corporations in the later act, from that in the Act of 1869. As above stated, the corporation in question was organized under the act of 1927. Indeed it was the only act under which such a corporation could have been organized, as the act of 1869 had been repealed by § 57 of the act of 1927 which provides that : “All acts and parts of acts in conflict with any of the provisions hereof be and they are hereby repealed,” etc. The corporation act of 1869 is plainly in conflict with the act of 1927 as the latter, dealing with the same general subject-matter, provides a new and different ’scheme or system for the organization and regulation of corporations. This fact is further conclusively demonstrated by the provisions of §§ 54 and 55 of the latter act. Section 54 provides that: “Aliy corporation organized and existing under the laws of this State on the date on which this act becomes effective may re-incorporate under this act either under the same or a different name” by following the procedure therein described. It is then provided that, when it has so done, it “shall be deemed to be incorporated hereunder and shall be subject to all duties and liabilities of this act and be entitled to and be possessed of all the privileges, franchises and powers as if originally incorporated under this act,” etc. Section 55 provides: “Any existing corporation of this State, failing* to avail itself of the provision of § 54 hereof prior to January 1, 2928, shall be deemed as a corporation created under the provisions of this act and subject to all its provisions as fully as if it had complied with the terms and provisions of this act.” Therefore, it necessarily follows that the act of 1927 was the only act in existence at the time of the incorporation of the Rainwater-McCarthy Motor Company under which it could have been incorporated, and that all other similar corporations organized either before or after the effective date of the act of 1927 are now deemed to be corporations thereunder and “subject to all duties and liabilities of' this act” and to none other. This action was brought against appellee to recover a corporate debt under §§ 1715 and 1726, Crawford & Moses’ Digest. These were §§ 12 and 21 respectively of the act of 1869.. There are no like provisions in the act of 1927, but it imposes other and different duties and liabilities. For instance § 49 provides: “A director, officer, agent, or employee of any corporation who knowingly and with intent to defraud concurs in making or publishing any written report, exhibit or statement of its affairs or pecuniary condition containing* any material statement which is false shall be liable for all damages caused thereby.” Evidently the Legislature intended to substitute the liability imposed by the above section for that provided in the act of 1869. The old act imposed the liability on the president and secretary alone for ail unintentional neglect. The new act imposes it upon any officer, director, agent or employee “who, knowingly, and with intent to defraud, concurs” in publishing any false, written financial statement. It would seem to serve a better purpose, for any person before becoming a creditor may require such a financial statement.

As above stated, the act of 1927 provides a new scheme or system for the organization and regulation of corporations. It takes up the whole subject-matter anew and sets up a new plan. It is in no sense amendatory to the old act, but it is a new enactment covering the same subject-matter. It runs through 40 pages of the printed acts, with 57 sections. As we said in Cordell v. Kent, 174 Ark. 503, 205 S. W. 404, cited with approval in State ex rel. Atty. General v. Standard Oil Co., 179 Ark. 208, 16 S. W. (2d) 581: “Where the Legislature takes up a whole subject anew, covering the whole ground, revising the whole subject-matter of a former statute, and evidently intending to enact a substitute, the old statute is repealed, although the new statute contains no express words to that effect,” and further, even though the old statute contains provisions not covered in the new. This is exactly what the Legislature did in enacting act 250 of 1927.

We. deem it unnecessary to take up and compare the different provisions of the two acts to show further the applicability of the rules of law herein announced, as a reading of the two will demonstrate the correctness of the views here expressed. We have reached the conclusion that the act of 1869 has been repealed by the act of 1927, and that there is no longer any basis for the action sought to be maintained by appellant. The chancery court, therefore, correctly overruled appellant’s demurrer to appellee’s answer and correctly dismissed its complaint for want of equity when it declined to plead further.

Affirmed.

Hart, C. J., and Mehaeey, J., dissent.


source: Caselaw Access Project

author: McHaney, J.

license: Public Domain

text:
    Morgan Utilities, Inc., v. Kansas City Life Insurance Company.
    Opinion delivered March 9, 1931.

      G. E. Garner, for appellant.

      Carmichael Hendricks, for appellee.
   McHaney, J.

On July 20, 1926, appellee sold and conveyed by deed of that date to Jewell Realty Company a plantation in Chicot County, Arkansas, known as “Sunnyside,” and for a large portion of the purchase price took a-mortgage from the Jewell Realty Company as security therefor. There was located upon said land at the time of the sale and mortgage a gin which was treated by both parties as a part of the realty and was included in both the deed and mortgage as such, although not particularly mentioned therein. Located in the gin building was a Fairbanks-Morse 80 H. P. oil-burning engine which weighed 25,000 pounds, set upon a heavy concrete base with bolts imbedded in the concrete. Attached to said engine was a large oil tank buried some 4 or 5 feet in tbe ground. In November, 1926, fire destroyed tbe gin and did considerable damage to the engine. The loss was adjusted by the insurance company having the risk with the Jewell Realty Company on a basis of about $800 damage to the engine and tank.

The Jewell Realty Company being in default in the payment of its indebtedness, appellee brought suit against it in April, 1928, to foreclose its mortgage, and in November, 1929, D. S. Clark was appointed receiver to take charge of the mortgaged property and rent out the land. The Jewell Realty Company is a foreign corporation not authorized to do business in Arkansas, but it entered its appearance in the foreclosure suit and was represented by an attorney who was present, together with its vice president, when the receiver was appointed. About December 12, 1929, the vice president of the Jewell Realty Company sold and delivered said engine and tank to appellant, Morgan Utilities, Inc., for a consideration of $500. Appellee did not discover that the engine and tank had been removed from the premises until about April 4, 1930. Prior to this time a decree of foreclosure had been entered, the sale advertised, and on April 5, the property was sold, pursuant to the decree of the court, at which sale the commissioner announced that it included said engine, but no personal property. Shortly thereafter citation was issued against appellant to show cause why it should not return said engine and tank to appellee, it being the purchaser at the foreclosure sale. On a hearing the fact was developed that said engine had never been set up and operated by appellant. The court made an order directing appellant to return it to the receiver. Appellant refused to obey the order, was held for. contempt until bond was given, which was done, and appellant set up, began operating the engine and now has it in its possession. Thereafter appellant filed an intervention cl ai mi no- the engine under its purchase, asked that the Jewell Realty Company be made a party, and that, if the court held the engine to be the property of appellee, it have judgment against the Jewell Realty Company. The realty company answered that it could not be sued in this State because it had never complied with the law relating to foreign corporations, had not designated an agent for service, and that the service had upon the State Auditor ivas void as to it, which should be quashed.

Upon a hearing the trial court held that the engine was the property of appellee, and ordered that it be restored to it, found it to be of the value of $2,000, and entered judgment against appellant and its surety in the sum of $2,000 and against Jewell Realty Company in the sum of $500 in favor of appellant, from which Morgan Utilities and Jewell Realty Company have appealed, and appellee has taken a cross-appeal.

The court found that the engine and tank were fixtures, and we think the preponderance of the evidence supports such finding. The engine was a ponderous piece of machinery, weighing 10% tons, was set on a concrete foundation several feet in thickness with 8 bolts buried in the concrete. Both engine and tank were used to operate the gin and the undisputed evidence shows that they were sold with the land as a part thereof, with a mortgage back on the same property sold. In addition to this it was the intention of the parties that they should be fixtures, and the intention of the parties is one of the principal rules in determining whether an article is a chattel or an irremovable fixture. In Osark v. Adams, 73 Ark. 227, 83 S. W. 920, the rules for determining this question are stated in the first syllabus as follows: ‘ ‘ The rules for ascertaining’ whether an article is a chattel or an irremovable fixture are as follows: (1) real or constructive annexation of the article in question to the realty; (2) appropriation or adaptation to the use or purpose of that part of the realty with which it is connected; (3) the intention of the party making the annexation to make a permanent accession to the freehold, this intention being inferred from the nature of the article affixed, the relation and situation of the party making the annexation, and the policy of the law in relation thereto, the structure and mode of the annexation, and the purpose or use for which the annexation has been made.”

As above stated, the undisputed evidence shows that the title to the gin and all the equipment therein passed to the gin and all the equipment therein passed to the Jewell Realty Company by the deed from appellee and back to appellee by the mortgage. It was considered as realty by both parties and no special mention was made thereof either in the deed or mortgage. 'By its mortgage to appellee, the Jewell Realty Company parted with the legal title to the realty and all fixtures which had become a permanent accession to the freehold, and retained only an equitable interest therein. Therefore, it necessarily follows that, not having the legal title, it could convey none, except such as it had. But appellant says that, since the engine had gone through a fire which rendered it unfit for use without extensive repairs, it became personal property, ceased to be a fixture, even though it had formerly been such and was subject*to sale as personal property by the Jewell Realty Company. We do not think so. In 11 R. C. L., p. 1066, the rule is stated thus: “But, on a mere tempofary severance of articles which possessed the character of fixtures, they still remain a part of the realty, and likewise where the severance is by accident, at least until the owner, by appropriation or otherwise, converts the parts accidentally detached into personalty.” Here the owner of the legal title, appellee, did not sever the fixture from the realty, nor was it done with its knowledge or consent, but against its will. If it could be said that it was severed by the fire, still it continued to be a part of the realty to which appellant acquired no title, as against appellee, in its purchase from the realty company.

Appellant also contends that it was not properly in court. The record shows it was cited to show cause why it should not return the property and an order was made against it to return same. It thereafter voluntarily entered its appearance, intervened in the action, and set up its title to the property. We therefore think that the court had jurisdiction of appellant as also of the Jewell Realty Company.

. As to the value of the property, the court found it to be $2,000, which we think is supported by the preponderance of the evidence. It is true that appellant paid only $500 for it, but it was buying only such title as the Jewell Realty Company had. Appellant had knowledge, either actual or constructive, of appellee’s mortgage on the property and knew or should have known that it could acquire no title as against appellee. The proof shows the engine cost $4,'200 about three years before the fire, and that the fire damage was adjusted at $800. Appellee’s evidence was to the effect that the engine and tank were worth a minimum of $2,000 at the time it was sold to appellant, and we think the preponderance of the evidence supports the court’s finding of the value of $2,000. It is true that appellant has repaired the engine at a cost of approximately $1,500, but this can make no difference. The effect of this action is in the nature of a suit for conversion, and the measure of damages is the value of the property at the time it was converted.

We are therefore of the opinion that the court was justified in rendering a judgment against appellant for the value of the property, $2,000. We are also of the opinion that the court correctly rendered judgment against Jewell Realty Company in the sum of $500, the amount received by it for said property. The case will be affirmed both on the appeal and cross-appeal.


author: Hart, C. J.,

text:
    American Liberty Mutual Insurance Company v. Washington.
    Opinion delivered March 23, 1931.

      Coulter d Coulter, for appellant.

      Graham Moore, for appellee.
   Hart, C. J.,

(after stating the facts). The general ground upon which the judgment upon the insurance policy in the justice court is sought to be enjoined and set aside is that it was obtained by fraud. It is the settled law of this State that the fraud which entitles a party to impeach a judgment must be a fraud extrinsic of the matter tried in the case. It must not consist of any false .or fraudulent act or testimony, the truth of which was, or might have been, in issue before the court, which resulted in the judgment that is thus assailed. It must be a fraud practiced upon the court in the procurement of the judgment. Bank of Pine Bluff v. Levi, 90 Ark. 166, 118 S. W. 250; and H. G. Pugh & Co. v. Ahrens, 179 Ark. 829, 19 S. W. (2d) 1030.

The present case falls within this principle. The very issue of fact now proposed to be retried as the main thing that was controverted in the suit upon the fire insurance policy sued on in the justice court and was essential to the judgment.

It is next insisted that the justice court had no jurisdiction because twelve per cent, damages and $50 attorney’s fee were awarded under the provisions of § 6155 of Crawford & Moses’ Digest. We do not think this contention is sound. Under this statute an insurance company becomes liable for the twelve per cent, damages and attorney’s fee when recovery is had upon the policy sued on for the amount sued for. The statute does not make the liability of the company depend upon its refusal to pay the loss, or its good faith in contesting the matter. The statute becomes a part of the contract of insurance and is cost to reimburse the plaintiff for expenses incurred in inforcing the contract. The allowance of the twelve per cent, damages is a matter of public policy declared by the Legislature, and its wisdom and expediency in the matter cannot be reviewed by the courts. Arkansas Insurance Co. v. McManus, 86 Ark. 115, 110 S. W. 1097; Guardian Life Insurance Co. v. Dixon, 152 Ark. 597, 210 S. W. 25; and Security Insurance Co. of New Haven v. Smith, ante p. 254.

The reason for the rule is that insurance companies are engaged in a business of such general and public concern as to permit the police power of the State to be invoked in aid of the rights and duties growing out of the relations of insured and insurer. Germania Fire Insurance Co. v. Barber Tenton Bally, 19 Ariz. 580, 173 Pac. 1052, 1 A. L. R. 488.

We find no reversible error in the record, and the judgment will be affirmed.


author: Smith, J.

text:
    Parker v. Nicholas.
    Opinion delivered March 23, 1931.

      McConnell $ Jackson, for appellant.
   Smith, J.

Appellee is engaged in cattle tick eradication work in Howard County, pursuant to the regulations of the Board of Control of the Arkansas Agricultural Experiment Station, having charge thereof. The validity of the regulations of this hoard has been recognized in numerous cases. Appellee sprayed three head of cattle belonging to appellant, two one day and the third the following day, and he demanded the fees for the service amounting to $9, $3 for each animal sprayed. When payment was refused, appellee drove away the last animal sprayed, for the purpose of selling it in satisfaction of his fees, but, before it could be sold, appellant brought suit in replevin to recover its possession, and from a judgment adverse to him in the circuit court is this appeal.

Two questions are presented for our decision, one of fact, the other of law. The question of fact was submitted under an instruction as favorable to appellant as could have been given, which reads as follows: “You are instructed that, if you find from a preponderance of the evidence, plaintiff was instructed by those in charge of tick eradication that if his cattle had been kept in a pasture and not allowed to run upon the range, and you find -that such cattle had been so kept in a pasture, or if you find that those in charge of tick eradication had instructed plaintiff to dip or spray such of his cattle which were permitted to run at large on the range, and you find such of his cattle which ran at large upon the range were dipped or sprayed, as required by the authorities, and then placed in his pasture and kept there free from tick contamination, you will find for the plaintiff.”

The testimony on the part of appellant was to the effect that he had kept in his pasture the animal which was sprayed on the third day, and that he had been advised by the officers engaged in the enforcement of the tick eradication regulations that he would not be required to dip or have sprayed the cattle which had not been allowed to run on the range. But the testimony is conflicting on this issue of fact, and is sufficient to support the finding, not only that appellant was not so advised, but that, even so, the animal in question had not been continuously confined in the pasture but had been allowed to range outside.

The law question in the case is whether the authority exists to make a charge for spraying an animal, the insistence being that provision is made only for a charge for dipping*; in other words, that a charge may be made for dipping cattle, but not for spraying them, and, as the plaintiff’s cattle were sprayed, and not dipped, there is no authority to charge for the service rendered.

We do not so understand the law and the regulations of the Board of Control. Both dipping and spraying are intended to accomplish the same purpose, and both methods have been approved by the Board of Control.

Section 40 of bulletin No. 160, promulgated by the Board of Control, is a copy of § 1 of act 279 of the Acts of 1919 (General Laws 1919, p. 216), and reads as follows: “It shall be the duty of any peace officer, when notified by a duly authorized inspector, to dip cattle at a time .and place designated by said inspector, when the owner or person having cattle in charge shall fail, refuse, or neglect to dip said cattle under supervision on regular dipping dates. The peace officer shall have free access to any premises, and is authorized to make a charge of not less than one ($1) dollar or not more than three ($3) dollars for each animal for their services, and the owner or person in charge of said cattle shall pay this fee, and, upon his failure to pay the same, the peace officer shall sell the cattle and take his fee and the expenses of the sale from the proceeds of the sale. Stray cattle shall be dipped by any peace officer, and, if not claimed and the officer’s fee paid, the cattle must be impounded and advertised for ten days, after which they may be sold, and after the fees have been taken from the proceeds of the sale the remaining, if any, shall be paid into the county general revenue fund.”

Paragraph 2 of § 4 of Bulletin No. 160, above referred to, reads as follows: “In counties or portion of counties where systematic tick eradication is 'being conducted under the regulation of this board, it shall be the duty of all persons owning or having charge of any cattle to dip or otherwise disinfect by means that may be designated all their cattle every fourteen days under the supervision of a duly authorized inspector of this board unless they receive written notice that they are not required to dip their cattle.”

We have expressly held that the board has authority to make such regulations as the one last quoted, and that the board has authority to enforce these and similar regulations, and that it is the duty of all persons coming within their purview to obey them. Kansas City So. Ry. Co. v. State, 90 Ark. 343, 119 S. W. 288; St. L. I. M. & S. Ry. Co. v. Campbell, 116 Ark. 119, 172 S. W. 823; Davis v. State, 126 Ark. 260, 190 S. W. 436; Rider v. State, 126 Ark. 501, 191 S. W. 12; Cazort v. State, 130 Ark. 453, 198 S. W. 103; Palmer v. State, 137 Ark. 160, 208 S. W. 436; Ashcraft v. State, 140 Ark. 505, 215 S. W. 688; Boyer v. State, 141 Ark. 84, 216 S. W. 17; Teague v. State, 141 Ark. 182, 216 S. W. 294; Lee v. State, 141 Ark. 490, 217 S. W. 455; Housley v. State, 166 Ark. 453, 266 S. W. 957; Humphrey v. Tinsley, 181 Ark. 73, 25 S. W. (2d) 1.

The regulations of the Board of Control treat dipping and spraying as having the identical purpose of applying to the tick-infested animal the solution approved by the Board of Control as án effective means of ridding the animal of the ticks which infest it. The service is identical, although the manner of rendering it is different, and both the statute and the regulations of the board fix the fees for the service. The testimony shows that the board had fixed the fee for either service at $3, and the authority existed therefore for collecting this charge when the service had been performed.

It was therefore the duty of the plaintiff to pay this charge, and the peace officer who rendered the service had authority to retain the animal, subject to his right to sell in the manner authorized by the act of 1919, supra. Having refused to pay this charge, the plaintiff did not have the right to the present possession of the animal at the time he instituted this suit, and the judgment of the court to that effect must be affirmed, and it is so ordered.


author: Humphreys, J.

text:
    National Savings & Loan Association v. Cook.
    Opinion delivered March 23, 1931.

      Otoens & Ehrma/u and Ada Marett Carter, for appellant.

      John Baxter, for appellee.
   Humphreys, J.

This is an appeal from, the decree of the chancery court of Desha County, reforming a deed executed by appellees, Ben E. and Jennie Mae Cook, to appellees, A. O. and Grace Roscher, of date August 17, 1929, so as to make it read that the land therein described was conveyed by the Roschers subject to the mortgage lien in favor of appellant for $4,000 instead of reading that the Rosehers assumed and agreed to pay the mortgage indebtedness to appellant.

In the mortgage foreclosure proceedings, appellant •made the Roschers parties defendant and prayed for a personal judgment against them on the ground that, as a part of the consideration for the property, they agreed with the Cooks to assume the payment of said mortgage indebtedness to appellant. The deed from the Cooks to the Roschers was made an exhibit to appellant’s complaint, and it contained a recital to that effect.

The Roschers interposed the defense to the prayer for a personal judgment against them that they bought the property subject to appellant’s mortgage, and did not assume and agree to pay the mortgage indebtedness as a part of the consideration therefor.

This formed the only issue between appellant and the Roschers in the trial of the foreclosure proceedings and is the only issue involved on this appeal.

There is a conflict in the testimony of Ben E. Cook and A. O. Roscher relative to the contract of sale and purchase of the property. A. O. Roscher testified that he bought the property from the Cooks for $1,125, subject to appellant’s mortgage. Ben E. Cook testified that he sold the property to the Roschers for $1,125 and the assumption of appellant’s mortgage.

The record reflects, according to the undisputed testimony, that, after Cook and Roscher entered into the oral contract for the sale and purchase of the property, A. O. Roscher had his attorneys prepare a deed on a blank form for the Cooks to execute to him and his wife. Immediately after the description of the property, the following typewritten recital appears in the deed:

“■Subject, however, to a first mortgage held by the National Savings & Loan Association of Little Rock, Arkansas, which mortgage debt it is expressly stipulated the grantees do not assume or agree to pay. ’ ’

Roscher then mailed the deed, together with a written memorandum of the oral agreement signed by himself, to Ben E. Cook. At the bottom of the memorandum, Roscher requested Cook to' O. K. and to execute and return the deed to him.

Ben E. Cook received the deed and memorandum. He construed the words “subject to the mortgage” as an obligation by the Roschers to pay the mortgage indebtedness. He therefore changed, in ink, the wording of the deed by striking out the word “not” and by inserting the word “and” in place of the word “or” in said clause so as to make the clause in the deed read as follows: '

“Subject, however, to a first mortgage held by the National Savings & Loan Association of Little Rock, Arkansas, which mortgage debt it is expressly stipulated the grantees do assume and agree to pay.”

A. O. Roscher filed the deed for record without rereading it, under the impression and belief that it had been executed as originally written by his attorney. After being recorded, he retained the deed without discovering any change in the wording until this suit was brought.

The failure of Ben E. Cook to call the attention of A. O. Roscher to the change he made, in the wording of the deed when he returned same and the failure of A. O. Roscher to discover that a material change had been made in the deed before the execution thereof, brings the instant case within the wholesome rule announced by this court in the case of Bradley v. Minton, 159 Ark. 659, 252 S. W. 921. The trial court correctly applied the rule announced in the Minton case, supra, to the facts in the instant case in reforming the deed.

The decree is therefore affirmed.

McHaney, J., disqualified and not participating.


text:
    Jacks v. Culpepper.
    Opinion delivered March 23, 1931.

      E. K. Toney and Creed Caldwell, for appellant.
   McHaney, J.

On December 20, 1929, a collision occurred between the cars owned and driven by appellant and appellee at the intersection of East Fifteenth Avenue and State Street in the city of Pine Bluff, Arkansas. Appellee was driving east on Fifteenth Avenue and appellant north on State Street. The collision caused personal injuries to appellee, for which he brought this action in February following, alleging negligence, and in which he recovered a judgment against appellant for $500.

It is conceded that the testimony is in conflict regarding responsibility for 'the collision, each claiming that it was the other’s fault and each being supported by other evidence, and that the verdict and judgment are supported by substantial evidence. It is contended, however, for a reversal of the judgment, that the trial court erred in giving two instructions over appellant’s objections and in refusing to give another requested by him.

The first instruction given, about which complaint is made, was appellee’s requested instruction No. 1, as follows: “You are instructed that it is the duty of a person operating an automobile upon a public highway to drive the same with due care and circumspection, and at a careful and prudent speed not greater than is reasonable and proper, having due regard to the traffic and safety of others, and he has no right to drive at such speed or in sncli manner as to endanger the life, limb, or property of a person.” The complaint made against this instruction is that it is inherently wrong, abstract, and that it assumes as a. fact that appellant was driving his car at an excessive rate of speed when the evidence as to the excessive speed is conflicting. We cannot agree with appellant. The instruction is a clear and concise statement of the duty of any person operating an automobile upon a public highway. .While requested by appellee, it applies to him as well as to appellant. It is substantially the same as § 3, act 223 of 1927, p. 721, defining reckless driving. It is not abstract for the court in instruction No. 2, immediately following, about which no complaint is made, applied the law as stated to the facts in this case, if so found by the jury. The instruction does not assume that appellant was driving at an excessive rate of speed. We approved a somewhat similar instruction in Graves v. Jewell Tea Co., 180 Ark. 980-987, 23 S. W. (2d) 972.

The second instruction complained of is No. D, as follows: “Where two automobiles approach a street intersection at approximately the same time, the one on the left shall yield the right-of-way to the one on the right; however, where one automobile has already entered the intersection and the other has not, then the former has the right-of-Avay over the latter.” Appellant objected generally and specifically to said instruction “because the proof shows that the plaintiff testified that he looked to the right and saw the defendant approaching before he entered the street.” This specific objection is apparently based on the traffic ordinance of Pine Bluff relative to the right of Avay at street intersections, which proAddes that: “A driver of a vehicle approaching an intersection of streets shall give the right-of-way to the vehicle approaching such intersection from his right.” Appellant’s other assignment of error relates to the same subject-matter, and both will be discussed together. The court refused his requested instruction No. 6, as follows: “It is the duty of a driver of a motor vehicle at street intersections to watch for motor vehicles approaching from his right and to give such motor vehicles the right-of-way. If he should fail to do that and is injured by a motor vehicle approaching from his right, he would not he entitled to recover for an injury, the result of a collision occasioned thereby.”

An ordinance of the city of Little Rock relating to the right-of-way of vehicles at street intersections was considered by this court in Murray v. Jackson, 180 Ark. 1144, 24 S. W. (2d) 960. There the ordinance was: “When two vehicles approach, or enter an intersection at approximately the same time, the driver of the vehicle on the left shall yield the right-of-way to the vehicle on the right.” It is conceded that if the Pine Bluff city ordinance were the - same as that of Little Rock, the court’s instruction D would he a correct declaration of law. While it is true the ordinance now under consideration omits the words “at approximately the same time,” as contained in the Little Rock ordinance, we think their meaning is the same, and that the same rule applies to both. The Pine Bluff ordinance certainly does not mean what appellant contends it does in his instruction No. 6 above set out. If the driver of a motor vehicle had to wait at a street intersection for every motor vehicle “approaching from his right and to give such motor vehicle the right-of-way,” no matter how far away he might see him approaching, it would be so unreasonable as not to admit of that construction. Just as here appellee testified he saw appellant approaching from his right, about 290 feet away, and he thought he had ample time to cross ahead of him in safety. Appellee had entered the intersection while appellant was still “approaching” it, approximately 290 feet away. The ordinance does not require one who has “entered” the intersection to yield the right-of-way to one who is “approaching” it from the right, for one who has entered the intersection cannot he said to be approaching* it. It only requires one who is “approaching” to yield to one on his right who is also “approaching,” which simply means the same thing as the Little Rock ordinance construed in Murray v. Jackson, supra. Therefore it follows that instruction D is correct, and that appellant’s requested instruction No. 6 is wrong, and was properly refused.

Judgment affirmed.


author: Per Curiam.

text:
    Herrod v. Larkins.
    Opinion delivered March 23, 1931.
   Per Curiam.

Counsel for appellant asks for a rule on the clerk to direct him to file the transcript offered in this case. There appears as a notation from the judge’s docket the following: “8/18/30. Judgment of lower court affirmed. 8/18/30, Motion for new trial filed; overruled; exceptions saved. Appeal prayed and granted and 60 days given to file bill of exceptions.” The offered transcript also shows that motion for new trial was “filed 9/16/30.”

Thus it will he seen that there is no final judgment entered of record from which an appeal will lie. In Lowenstein v. Caruth, 59 Ark. 588, 28 S. W. 421, it was held that the record of. a judgment is the only evidence of its existence. Its enforcement does not depend upon its being entered of record, and an execution may he issued upon- it before it is recorded. To the same effect, see McConnell v. Bourland, 175 Ark. 253, 299 S. W. 44.

In the Lowenstein case, Los Angeles County Bank v. Raynor, 61 Cal. 145, was cited as authority for so holding. In that case the court said that the entry of record of a judgment is a mere ministerial act, which is required to be done for putting in motion the right of appeal from the judgment itself.

The notation on the judge’s docket was not an entry of the judgment upon the records of the court. It might have been used'as a basis for a motion to require the clerk to enter the judgment of record. Lowe v. Hart, 93 Ark. 548, 125 S. W. 1030; and McConnell v. Bourland, 175 Ark. 253, 299 S. W. 44.

If Herrod wished to appeal from the judgment, he should have filed a motion to require the clerk to enter it of record as well as the order overruling his motion for a new trial. This is in accord with the view expressed in Chatfield v. Jarrett, 108 Ark. 523, 158 S. W. 140. There the court said:

“The lawmakers have prescribed a certain time within which to take an appeal and perfect it, and it is the duty of appellant to take all necessary steps to perfect the record within that time which was deemed sufficient by the lawmakers for that purpose. If the judgment or decree has been omitted from the record, it is within the rights of the losing party to move for entry of it, and it is his duty to do so if he desires to appeal from it. It devolves upon him to take whatever steps are necessary to perfect his ¡appeal.”

It follows that the motion for a rule on the clerk to file the transcript must be denied.


text:
    Winn v. Prudential Insurance Company of America.
    Opinion delivered March 23, 1931.

      Oscar E. Winn, for appellant.

      Fraihenthal, Sherrill >& Johnson, for appellee.
   Per Curiam.

Counsel for appellee have filed a motion to dismiss the appeal in this case because it was not taken in the time required by statute. The Prudential Insurance Company of America brought suit in the circuit court against Ploy K. Winn and Oscar H. Winn to recover the possession of certain real property described in the complaint. On the 20th day of May, 1930, judgment Avas rendered in favor of the plaintiff against the defendants for the possession of the property. On June 9, 1930, the defendants filed Avhat they call a motion to prevent Avrit of assistance and re-try the action. On the same day, the motion Avas heard by the court and overruled. On July 8,1930, the defendants filed their motion for a new trial, Avhich Avas overruled on the 29th day of July, 1930. The transcript of the case Avas filed in this court on December 2, 1930.

The judgment of May 20, 1930, contains an express recital that it is considered and adjudged that the Prudential Insurance Company of America have and recover from the defendants, Floy K. Winn and Oscar H. Winn, certain real property which, is specifically described. This was a final judgment from which an appeal would lie; and, under the settled law of this State, the appeal must be taken within six months from the date of the rendition of the judgment, and not from the date of overruling the motion for >a new trial. Chatfield v. Jarrett, 108 Ark. 523, 158 S. W. 146; Caudle v. Turner, 179 Ark. 337, and cases cited. See also Poe v. Walker, post p...........

Nor can a party by filing a motion to set aside a judgment for irregularity, instead of appealing therefrom, extend the time in which to appeal. Dent v. Farmers’ & Merchants’ Bank, 162 Ark. 325, 258 S. W. 322, and cases cited.

The judgment of May 20, 1930, settled and adjudicated the right of, j;he plaintiff against the defendants to the possession of 'thS^real property. It was a final judgment. The transcript was lodged in this court on December 2, 1930, which was more than six months after the rendition of the judgment. Therefore the appeal will be dismissed.


text:
    International Shoe Company v. Gibbs.
    Opinion delivered March 30, 1931.

      II. B. Means and McRae <& Tompkins, for appellant.

      Joe TV. McCoy and Join L. McClellan, for appellee.
   Hart, C. J.,

(after stating the facts). The first contention in the case is upon the ruling of the circuit court on the question of the measure of damages. Appellant insists that the court erred in telling the jury that, in event it allowed a recovery by appellee, the measure of damages would be the difference in value of his land immediately before and after the stream running through his land was used as an outlet for the sewage from the septic tank constructed by appellant. The instruction was based upon the theory that the damages to the land of appellee were permanent. Appellant contends that the injury, if any, was only temporary, and that the measure of damages for appellee would be the diminution in the rental value of his land. The action by appellee against appellant was for damages for an injury resulting from the construction and operation of a septic tank by appellant whereby its sewage was discharged from the tank and allowed to flow into the branch or creek running through appellee’s land and which rendered the water unfit for use by cattle and polluted the air by noxious and offensive odors about a dwelling house on his land.

The general policy of the law in such cases is to avoid a multiplicity of actions, and, if practical, to afford compensation in one action for all injuries. Under a similar state of facts in the cases of municipal corporations and sewer districts organized in them, where the sewage was discharged into the bed of a stream, the riparian owner was allowed to recover on the ground that the nuisance thus created was of a permanent and continuous character, and the landowner damaged was allowed to recover in one action all damages, past and future, which the nuisance has caused or will occasion in the future. Hence it was held that the measure of damages was the depreciation in the market value of the riparian owner’s land immediately before and after the nuisance was created. McLaughlin v. Hope, 107 Ark. 442, 155 S. W. 910, 47 L. R. A. (N. S.) 157; El Dorado v. Scruggs, 113 Ark. 239, 168 S. W. 846; Jones v. Sewer Imp. Dist. No. 3 of Rogers, 119 Ark. 166, 177 S. W. 888; and Sewer Imp. Dist. No. 1 of Wynne v. Fiscus, 128 Ark. 250, 193 S. W. 521, L. R. A. 1917D, 682.

In the cases cited the court said that the municipal corporations and sewer districts in constructing the sewer systems so as to turn the sewage into the streams, •indicated an intention to acquire a permanent right to pollute the stream, and the damages to the riparian landowner should be assessed upon that basis and as though the corporation was proceeding to acquire it under the power of eminent domain. The court further said that the turning of the sewage into the stream and the pollution of the water to the damage of the riparian owner constituted a taking or at least a damage to the property for public use within the meaning of the Constitution.

The same rule and the same reasoning has been applied in the case of quas¿-public corporations, such as railroads, under similar state of facts. St. L. I. M. & S. Ry. Co. v. Biggs, 52 Ark. 240, 12 S. W. 331, 6 L. R. A. 804, 30 Am. St. Rep. 174; St. L. I. M. & S. Ry. Co. v. Anderson, 62 Ark. 360, 35 S. W. 791; Turner v. Overton, 86 Ark. 406, 111 S. W. 270, 20 L. R. A. (N. S.) 894; C. R. I. & P. Ry. Co. v. Humphreys, 107 Ark. 330, 155 S. W. 127, L. R. A. 1916E, 962; and Yates v. Missouri Pac. Rd. Co., 168 Ark. 170, 269 S. W. 353, 38 A. L. R. 1434.

Where the injury was of a permanent and continuing character, the rule as to the measure of damages has been the same in cases where the wrong was caused by a private person or corporation. Czarnecki v. Bolen-Darnell Coal Co., 91 Ark. 58, 120 S. W. 326; Junction City Lumber Co. v. Sharp, 92 Ark. 538, 123 S. W. 370; Falcon Zinc Co. v. Flippen, 171 Ark. 1151, 287 S. W. 394; Standard Oil Company of La. v. Goodwin, 174 Ark. 602, 299 S. W. 2; and Arkebauer v. Falcon Zinc Co., 178 Ark. 943, 12 S. W. (2d) 916.

Our attention has not been called to any distinction in the authorities generally in the application of the rule in connection with corporations having the power of eminent domain and in cases arising where the injury complained of was not caused by the exercise of that power. The fact that the injury was caused by the exercise of the power of eminent domain has been considered of no importance except as showing that the structure was permanent in character. Virginia Hot Springs Co. v. McCray, 106 Va. 461, 56 S. E. 216, 10 Ann. Cas. 179; Highland Avenue & Belt Railroad, 99 Ala. 24, 10 So. 267, 14 L. R. A. 462.

If appellant had possessed the power of eminent domain, and had the damages been assessed in condemnation proceedings, it would not have acquired title to the land. The same damages would have been awarded, and damages, which can be assessed in condemnation proceedings, can be assessed just as well in an ordinary action at law. When the tank was constructed, it was evidently intended by appellant that it should be permanent, and it has been so treated and used by it ever since. As long as the sewer is used, just so long will the nuisance continue to injure the land of appellee. This court has recognized the rule that, when a nuisance is of such a character that its continuance is necessarily an injury and is of a permanent character, so that it will continue without change from any cause but human labour, the damage is original and can be at once fully compensated. St. L. I. M. & S. Ry. Co. v. Anderson, 62 Ark. 360, 35 S. W. 791.

In the instant case, at the trial the parties treated whatever injury might be caused by the pollution of the stream by the discharge in it of the sewage and the noxious odors arising therefrom around the dwelling house as of a permanent and continuous character. Appellant did not even ask the court to submit to the jury the question whether the damage or injury to appellee was temporary or permanent. Having failed to ask that this question of fact should be submitted to the jury, it cannot now complain that the court submitted to the jury the case upon the theory that the damage was original and susceptible of immediate estimation.

It is next insisted that the verdict in favor of appellee for $1,000 was excessive. The witnesses for appellee estimated the value of the land for all purposes immediately before the construction of the alleged nuisance was somewhere from $3,500' to $6,000'. Some of the witnesses said that the land was damaged fifty per cent, or more by the discharge of the sewage into the branch running through appellee’s land. The jury might have found from the testimony of the witnesses that the land was not only valuable for use as a cow pasture, but that it was also susceptible of being cut up into small lots and sold to people desiring to erect houses in the immediate vicinity of the city of Malvern. "When all the uses to which the land might be adapted are considered, it cannot be said that the jury’s finding that the land was damaged to the extent of $1,000 is excessive.

We find no reversible error in the record, and the judgment will be affirmed.


author: Humphrey, J.

text:
    First National Bank of DeWitt v. Hasty.
    Opinion delivered March 30, 1931.

      George Pike, W. A. Leach and Ingram <& Moher, for appellant.

      A. G. Meehan and John W. Moncrief, for appellee.
   Humphrey, J.

This is an appeal from a decree dismissing* appellant’s complaint ag’ainst appellee, Lillie M. Mobley, seeking to recover 25 per cent, of $11,000, which she received as a compromise settlement in a suit brought by her on the fourth day of September, 1922, against the administrator of the estate of W. F. Meacham, deceased, and against his heirs in the chancery court of Arkansas County, to establish a lost holographic will, alleged to have been made by him, in which all of his property, real and personal, was devised to said appellee.

Appellant made a written contract between appellee and J ohn W. Moncrief the basis of its suit, alleging that it was the owner of the contract by virtue of the assignment thereof to it by Caroline Hasty, who had acquired same by assignment from John W. Moncrief. The contract is as follows:

“This contract and agreement entered into by and between Lillie M. Mobley, first party, and J ohn W. Monerief, second party, witnesseth:
“First party agrees to pay John W. Moncrief 25 per cent, of all money, notes, accounts and credits which may be recovered by means and on account of the suit filed by Lillie M. Mobley against W. F. Meacbam and others for the purpose of establishing the will of W. F. Meacham, deceased. 25 per cent, of all money, notes and accounts so recovered by virtue of establishing and probating such will belong to John W. Moncrief, and he shall have the right, authority and power to collect same from any person and all persons having same in hand or in possession or unto whose hands or possession same may come and this shall be an order to deliver such one-fourth of same to said John W. Moncrief.
“The said John W. Moncrief shall receive the aforesaid 25 per cent, in addition to the fee mentioned in a former contract heretofore made, and this contract here and now made shall not in any way supersede or replace the former contract. And this contract here and now made shall not be taken to effect in any wise the former contract.
‘ ‘ Given under our hands and seals on this, the first day of November, 1922.
“Lillie Mobley,
“John W. Moncrief.
“Witness: K. D. Mobley and T. T. Hasty.”

It was alleged that under said employment, John W. Moncrief recovered $11,000 in cash for appellee, and that appellant is entitled to 25 per cent, of said amount under the terms of the contract.

Appellee filed an answer denying any liability under the contract to either John W. Moncrief, Mrs. Caroline Hasty, T. T. Hasty or appellant, alleging that she and John W. Moncrief had entered into a previous written contract whereby he was bound to perform all services for her in the suit to establish the will, and that the last contract and the one sued on by appellant was without consideration and also that the consideration for said contract was unlawful and void as against public policy.

According to the undisputed testimony, the record reflects the following facts:

Appellee brought a suit in the chancery court of Arkansas County against the administrator and heirs of W. F. Meacham, deceased, to establish his lost will, in which he devised his entire estate to appellee. J. W. Moncrief was her attorney in the proceedings, having been employed under a written contract of date April 24, 1920, in which he agreed for $500 and 4 per cent, of what he might recover to assist Crawford & Hooker in representing appellee in all litigation existing or that might arise in connection with the estate, administrator, or heirs of W. F. Meacham, deceased. During the pendency of the suit to establish the lost will, the contract sued upon herein was executed in the name of John W. Moncrief, but for the benefit and protection of T. T. Hasty, who was to receive the amount set forth in the contract as additional fee for J. W. Moncrief, upon conditions about which the parties differ. J. W. Moncrief was made the second party in the contract so that he might pay one-fourth of the amount that he recovered and collected to T. T. Hasty with the understanding that he would assign the-contract to Caroline Hasty in order to protect T. T. Hasty from any claim J. W. Moncrief’s representatives might make to 25 per cent, of the recovery, if he, J. W. Moncrief, should die before the collection was made. Subsequently, Caroline Hasty assigned the contract to appellant as additional security for certain existing indebtedness T. T. Hasty owed it.

In September, 1923, T. T. Hasty, who had theretofore purchased an undivided three-sevenths interest in the estate of W. F. Meacham, deceased, from several of the heirs, testified in the suit to establish the will that sometime in 1920 Mrs. Sarah Shanklin, who had been the housekeeper for W. F. Meacham for many years, showed him W. F. Meacham’s will; that it was in the handwriting of W. F. Meacham, deceased, and that, according to its terms, all his property was devised to appellee.

After T. T. Hasty had testified, the case was compromised and settled by paying appellee $11,000 cash, she agreeing to relinquish further right to share in the Meacham estate.

The testimony is in conflict as to the consideration moving between Hasty and appellee.

T. T. Hasty testified that he was to get the percentage named in the contract if he would testify to the existence of the will; that all he was to do to earn one-fourth of the recovery was to help- substantiate the will and its contents; that he and his mother together owned about three-sevenths interest in the estate and that the amount he was to receive for testifying to the existence of the will and its contents was about equal to his and his mother’s share in the estate.

K. D. Mobley testified that he agreed to pay T. T. Hasty 25 per cent, of what his wife might recover in the suit to establish the will to produce said will, and that, after the agreement had been made, they repaired to the office of John W. Moncrief for the purpose of having same reduced to writing in the best form; that, after stating’ the terms of the contract to J. W. Moncrief, he prepared the contract of date November 1, 1922, which was immediately assigned to Caroline Hasty, and subsequently to appellant.

J. W. Moncrief testified that the consideration specified in the contract was for the use of T. T. Hasty and not himself, and that he was made party of the second part therein in order to collect and pay T. T. Hasty 25 per cent, of the recovery, and that he assigned same to Caroline Hasty without recourse at the request and instance of T. T. Hasty without consideration in order to protect him against any claim of his representatives in case of his death; that personally he had no interest whatever in the contract, and did not act as attorney for either party in writing same; that he rendered his services and received pay therefor under the contract of date April 24, 1920 ; that T. T. Hasty never produced the will of W. F. Meacham nor in any way earned the percentage of recovery named in the contract of date November 1, 1922.

Appellant contends for a reversal of the decree upon the ground that the trial court erred in finding that the contract of November 1, 1922, was void for tbe want of consideration. The argument is made that, though it be conceded that J. W. Moncrief rendered no services thereunder but earned his fees under the contract of date April 24, 1920, yet there was a valuable consideration for the oral contract between T. T. Hasty and K. D. Mobley, which was adopted and used in formulating the written contract in which appellee appears as party of the first part and J. W. Moncrief as party of the second part. Attention is called to the fact that T. T. Hasty agreed to and had testified that W. F. Meacham died testate, and by his will devised all of his property to appellee, which testimony resulted in a benefit to appellee and a detriment or loss to T. T. Hasty, if appellant fails to recover on the contract. It is true that a benefit accruing to one and a loss resulting to the other party in the contract constitutes a valuable consideration therefor, but a valuable consideration is only one essential of a contract. There are several other necessary essentials to a contract, one being a lawful subject-matter. A contract relating to an unlawful subject-matter is void, even though supported by a valuable consideration. The testimony of T. T. Hasty, relied upon by appellant, if true, reveals that the contract is contrary to public policy and void. According to the facts, he agreed to testify, for a percentage of the recovery, that W. F. Meacham died testate, and that by holographic will he devised all of his property to appellee herein. This court is committed to the doctrine that a contract is void as against public policy in which one of the parties therein agrees to secure testimony that will enable the other to win an existing or contemplated suit. Mendel Bros. v. Davies, 46 Ark. 420; Josephs v. Bryant, 108 Ark. 171, 157 S. W. 136.

Having reached the conclusion that the testimony adduced by appellant renders the contract void, it is unnecessary to decide other questions argued by able counsel for apepllant.

No error appearing, the decree is affirmed.


author: Kirby, J.,

text:
    Taylor v. Street Improvement District No. 343.
    Opinion delivered March 30, 1931.

      Sam Rorex and Nat R. Hughes, for appellant.

      S. L. White, Wallace Townsend, L. P. Riggs, L. C. Auten and Horace Chamberlin, for appellee.
   Kirby, J.,

(after stating the facts). Appellant urges that the chancellor erred in decreeing the deposits of the moneys of the districts in the failed hank special deposits or trust funds within the meaning of § 1 of act 107 of 1927, and entitled to priority of payment over general creditors, as such. The law designates all creditors of a bank, of which the commissioner has taken charge, “classifiable” either as “secured creditors,” “prior creditors” or “general creditors,” and expressly provides:

“ * * * (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 it was not permitted to use in the course of its regular business, (5) the beneficiary of an express trust, as distinguished from a constructive trust, a resulting trust or a trust ex maleficio of which the said bank was the trustee, and which was evidenced by a writing signed by said bank at the time thereof. * * * All creditors not in this section hereinabove classed as secured or prior creditors of said bank, including the 'State of Arkansas and any of its subdivisions, shall be general creditors thereof.” A special deposit under the law must be expressly made as such in the bank and evidenced by a writing signed by the bank at the time it is made and which the bank is not permitted to use in the course of its regular business. In Covey v. Cannon, 104 Ark. 550, 149 S. W. 514, the court, after saying the moneys placed on deposit in the bank in the usual way would have been a general deposit and established the relation of debtor and creditor between the bank and the depositors, said: “If it was placed in the bank for safekeeping, and not to be checked out by the depositor, or under an agreement that the bank should act as bailee or agent and deliver the money to some other persons under certain conditions or apply it to a special purpose, it would have been a special deposit and the bank or agent or bailee with no right, to use it and mingle it with its own funds.” See also Morgan v. State, 162 Ark. 34, 257 S. W. 364; and Warren v. Nix, 97 Ark. 374, 135 S. W. 896. The Legislature appears to have restricted the definition of a special deposit in providing for their preferential payment to such only as are made expressly and evidenced by a writing signed by the bank at the time of the making thereof, showing such deposit is not permitted to be used by the bank in the regular course of its business.

There is no contention here that there was any written agreement between the bank expressly making the taxes collected by the improvement districts and deposited therein “special deposits” within the meaning of the law, or showing that they were such and the bank was not permitted to use the money in the course of its regular business. It is true the bank was designated in the pledges as the trustee therein and made a certificate of identification of each bond as one of a certain series as described in the pledge, but it is expressly provided in the pledge or mortgage: £ £ That the said trustee shall be responsible only for wilful misconduct in the execution of its trust,” and, “the recitals of facts contained in the said bonds or in this instrument are statements of the said district and shall not be considered as made by the trustee,” the pledge or mortgage being signed only by the improvement district. The deposit of the funds of the improvement districts, taxes collected on benefits assessed, although they were trust funds, so far as the particular official- collecting and depositing them is concerned, and known by the bank to be such, did not become special deposits in the absence of the written agreement by the bank making them such at the time of their deposit, and the deposit was a general one under the law, the owner or creditor standing upon the same footing as the other general creditors entitled to no preference or priority of payment. Warren v. Nix, 97 Ark. 374, 135 S. W. 896; Rainwater v. Davis, 172 Ark. 538, 289 S. W. 471; Talley v. State, 121 Ark. 4, 180 S. W. 330; State, use Prairie County v. McKee, 168 Ark. 441, 270 S. W. 513; School Districts v. Massie, 170 Ark. 222, 279 S. W. 993; Paul v. Draper, 158 Mo. 197, 59 S. W. 77; People v. Home State Bank, 338 Ill. 179, 170 N. E. 205; Officer v. Officer, 120 Ia. 389, 94 N. W. 947.

The State itself has been held not to be entitled to a preferential claim oyer other creditors for its deposit made in a bank that afterwards became insolvent, the common-law rule of preference of the sovereign over the subject not being applicable, and she and her political subdivisions are placed in the class of general creditors by the act. Maryland Casualty Co. v. Rainwater, 173 Ark. 103, 291 S. W. 1003, 51 A. L. R. 1332. As confirmatory of the above as a correct construction of the statute, it may be said that the Legislature at the same session enacted act 182, approved March 22, 1927, requiring all commissioners, treasurers and other officials of improvement districts having in charge the moneys and funds of such districts, before depositing them in any bank, to require of such bank or depository a surety bond conditioned for the apt, full and complete payment of all such funds so deposited, together with the interest thereon and prescribed a penalty for failure to do so. The improvement districts could have protected their funds by making “special deposits” thereof under the first act or requiring bonds made for repayment thereof under said act 182 of 1927, but did not do so.

It follows that the chancellor erred in holding that the funds deposited in the failed bank were “special deposits” or trust funds entitled to priority or preferential payment over the claims of the general creditors, and the decree must accordingly be reversed and the cause remanded with directions to enter a decree in favor of the plaintiffs for the amount of their claims to be paid pro rata with the claims of the other general creditors. It is so ordered.


author: Mehaffy, J.

text:
    Gates v. Greenville Bridge & Ferry Company.
    Opinion delivered March 30, 1931.

      David A. Gates, Hal L. Norwood, Attorney General, and Walter L. Pope, Assistant, for appellant.

      Wynn •& Hafter, E. P. Toney and N. B. Scott, for appellee.
   Mehaffy, J.

David A. Gates, Commissioner of Revenues, issued an order under the provisions of act 181 of the Acts of 1929 directed to the sheriff of Chicot County commanding him to levy upon and sell the property of the Greenville Bridge & Ferry Company or so much thereof as may be necessary for the payment of tax, penalty, cost, etc.

Section 6 of the act under which the order was issued contains the following provision: “Every person, firm or corporation who shall operate a privately owned toll bridge or ferry in this State shall pay for the privilege of operating the same, in addition to all taxes now levied, a State license tax of four per centum of the gross amount of all fares and charges collected by said bridge or ferry, which said privilege tax shall be paid quarterly. ’ ’

The appellee, the Greenville Bridge & Ferry Company, filed its complaint in the Chicot Chancery Court against David A. Gates, Commissioner of Revenues of Arkansas, and Calmes Merritt, sheriff of Chicot County, Arkansas, praying for an order enjoining and restraining the appellants from levying on appellee’s property and for the cancellation of the writ or orders issued by the Commissioner of Revenues.

David A. Gates, the commissioner, filed answer alleging that the orders issued by him were under and by virtue of act 181 of the Acts of 1929, and that the order was directed to the sheriff of Chicot County directing him to levy upon and sell the property of appellee or so much as might be necessary for the payment of a tax due the State of Arkansas with penalty added in the sum of $3,906.

The following statement was filed, and no other evidence was introduced: “It is agreed by and between the parties to this cause that the plaintiff is a corporation chartered under the laws of the State of Delaware operating a ferry boat for the transportation of vehicles and passengers across the Mississippi River from Green-ville, Mississippi, to a point on the Arkansas shore; that the corporation is engaged exclusively in interstate commerce, and its boats are registered at the port of registry, Baton Rouge, Louisiana; that the situs of all its property is in Mississippi about four miles south of Greenville; that it has no property in Arkansas except a landing dock and property for the facilities of landing, that its boats only stop on the Arkansas side to load and unload passengers and vehicles; that the corporation has never paid taxes in Arkansas, and that Mrs. Kate C. Archer, the lessor of the plaintiff, has paid taxes on the land.

“It is further agreed that the gross proceeds of the corporation from April 23, 1929, to June 1, 1930, from tolls collected from passengers and vehicles crossing from both sides of the river is $66,100; that 50 per cent, of the tolls originate from States other than Mississippi and Arkansas; that approximately $32,750 originates in the State of Mississippi and in the State of Arkansas; that of the $32,750, one-half thereof originates in the State of Arkansas; that the embarkation of automobiles including cars from all States which cross the river is about one-half on the Mississippi side and one-half on the Arkansas side.

“It is further agreed by the parties of this action that the Greenville Bridge & Ferry Company has not made the quarterly reports which are required of ferries by act number 181 of the Acts of Arkansas for the year 1929; that it had not paid the tax prescribed by said act. It is further agreed that none of the boats of the plaintiff are registered or located in any part of Arkansas.

“It is further agreed that an agent of the Commissioner of Revenues for the State of Arkansas has made a demand upon the plaintiff company for its records of tolls collected by said ferry during the period of April 23,1929, to June 1,1930, and that said demand was made upon Mr. J. S. Hafter, who is an officer of the company, being secretary, at his office in the city of Greenville, Mississippi; that the verbal demand so made was refused, which demand was made by C. M. Matthews. The demand was made in Greenville, Mississippi.

“It is further agreed that the Greenville Bridge & Ferry Company has not qualified under the laws of the State of Arkansas as a nonresident corporation and has no agent in the State of Arkansas upon whom service can be had. ’ ’

The court issued an order enjoining the defendants from levying upon the property of appellees for the tax claimed in the suit and held that the tax of four per cent, provided in act 181 as applicable to appellee is a tax and a burden upon interstate commerce, and that the act was intended only as a tax on intrastate business.

The only question for us to determine is whether the tax provided for in act 181 is a tax or burden on interstate commerce, that is whether as applied to appellee it violates the Constitution of the United States.

The State has authority to tax foreign corporations for the- right or privilege of doing business in the State, although the ta.x may incidently or remotely affect interstate commerce. Ark. & Memphis Ry. Bridge & Term inal Co. v. State ex rel. Atty. Genl., 174 Ark. 420, 295 S. W. 378.

As stated by the Supreme Court of the United States : “The turning point in these decisions is whether in its incidence the tax affects interstate commerce so directly and immediately as to amount to a genuine and substantial regulation of or restraint upon it, or whether it affects it only incidentally or remotely so that the tax is not in reality a burden, although in form it may touch and in fact distinctly affect it. Hump Hairpin Mfg. Co. v. Emerson, 258 U. S. 290, 42 S. Ct. 305, 66 Law. Ed. 622.

The agreed statement in this case shows that the appellant is a foreign corporation operating a ferry boat for the transportation of vehicles and passengers across the Mississippi River between Mississippi and Arkansas; that it is engaged exclusively in interstate commerce, and has no property in Arkansas except a landing dock and property for the facilities of landing; its boats only stop on the Arkansas side to load and unload passengers and vehicles. It has never qualified under the laws of the State of Arkansas as a nonresident corporation and had no agent in Arkansas upon whom service can be had. It therefore appears that the only business appellee does in Arkansas is a part of interstate transportation. It loads and unloads passengers and vehicles that are being carried in interstate commerce, and this business is not merely an incident, but is a part, of the interstate transportation.

In a case decided by the Circuit Court of Appeals of the 5th Circuit where the city of Natchez had adopted an ordinance which prohibited the operation of a ferry from any other landing than the one fixed in the ordinance and prescribing rates, character of boats, and granting exclusive privilege to operate a ferry, the court said: “It is clearly held that, while the States, and, consequently municipal corporations acting under their authority, may adopt and enforce reasonable regulations for the safety and convenience of the public using ferries, and may fix reasonable rates to be charged in carrying passengers, vehicles, and freight from their own shores, they cannot prohibit the operation of a ferry, nor exact a license fee for the privilege of landing or taking passengers, vehicles, etc.” McNeely v. Natchez, 4 Fed. (2d) 899.

“Regulation of interstate and foreign commerce is a matter committed exclusively to the control of Congress, and the rule is settled by innumerable decisions of this court, unnecessary to be cited, that a State law which directly burdens such commerce by taxation or otherwise constitutes a regulation beyond the power of the State under the Constitution. It is likewise settled that transportation by ferry from one State to another is interstate commerce and immune.from the interference of such State legislation. * * * While a State has power to tax property having a situs, within its limits, whether employed in interstate commerce or not, it cannot interfere with interstate commerce through the imposition of a tax which is in effect a tax for the privilege of transacting such commerce.” Helson & Randolph Co-partners v. Kent, 279 U. S. 245, 49 S. Ct. 279.

A tax on the privilege of operating a ferry, where the ferry company is exclusively engaged in ferrying' passengers across a river from one State to another, is a burden on interstate commerce which a State may not impose. Helena-Glendale Steam Ferry Co. v. State, 101 Miss. 65, 57 So. 362, Ann. Cas. 1914B, 682; Phil. & So. N. S. S. Co. v. Pa., 122 U. S. 326, 7 S. Ct. 1118.

“While it is conceded that the property in a State belonging to a foreign corporation engag'ed in foreign or interstate commerce may be taxed equally with like property of a domestic corporation engaged in that business, we are clear that a tax or other burden imposed on the property of either corporation because it is used to carry on that commerce or upon transportation of persons or property or for the navigation of the public waters over which the transportation is made is invalid and void, as an interference with and obstruction of the power of Congress in the regulation of such commerce.’’ Gloucester Ferry Co. v. Pa., 114 U. S. 196, 5 S. Ct. 826.

The court also said in the above case: “If such a tax can be levied at all, its amount will rest in the discretion of the State. It is idle to say that the interest of the State would prevent oppressive taxation. Those engaged in foreign and interstate commerce are not bound to trust to its moderation in that respect; they require security. And they may rely on the power of Congress to prevent any interference by the State until the act of commerce, the transportation of passengers and freight, is completed. The only interference of the State with the landing and receiving of passengers and freight, which is permissible, is confined to such measures as will prevent confusion among the vessels and collisions between them, insure their safety and convenience, and facilitate the discharge or receipt of their passengers or freight, which fall under the general head of port regulations. ”

Receiving and landing passengers is not only incident to their transportation, but a necessary part of it. The transportation is not complete until the passengers have disembarked or the freight has been unloaded, aud the loading of the freight and passengers on the Arkansas side in the instant case and discharging of freight and passengers is a necessary part of the transportation and the tax levied by the act under consideration is a tax on the right to take on and discharge freight and passengers and is therefore a tax or burden on interstate commerce.

The appellee has no property subject to taxation in Arkansas; the real estate where passengers and freight are discharged or taken on, belongs to another person who pays the taxes on such property. The ferry boat belonging to the company can only be taxed at its home port.

It therefore appears clear that the tax sought to he collected is a tax on interstate commerce and invalid. The decision of the Supreme Court of the United States last referred to, we think, settles beyond controversy that this tax is void. There are many other decisions to which attention might be called among which are: Port of Richmond and Bergen Point Ferry Co. v. Board of Chosen Freeholders of Hudson County, 234 U. S. 317, 34 S. Ct. 821; City of Sault St. Marie v. International Transit Co., 234 U. S. 333, 34 S. Ct. 826; Fargo v. Mich., 221 U. S. 230, 7 S. Ct. 857.

The appellant cites and relies on Cooley’s Constitutional Limitations, 8th Ed., vol. 2, 1296, and the case of Conway v. Taylor, 1 Black 603, 17 Law. Ed. 191, but the question involved in the section referred to in Cooley’s and the case cited are not the questions involved here. There is no contention that the State would not have the right to make reasonable regulations and inspection for the benefit of the public. This is the effect of the holding of all the authorities, but we have not had our attention called to any authority that would authorize the taxing of the right or privilege to take on or discharge passengers or freight, where the only business engaged in is interstate commerce.

The decree is affirmed.


text:
    Van Buren County Board of Education v. Suggs.
    Opinion delivered March 30, 1931.

      Opie Rogers, for appellant.

      Garner Fraser, for appellee.
   McHaney, J.

Appellees, residents of Choctaw Special School District, being- desirous of transferring certain of their children from said district to Clinton Special. School District, both in Van Burén County, filed separate petitions therefor with the county board of education. After considering each of said petitions, the county board denied the same and entered an order to this effect, from which an appeal was taken to the circuit court, where, on a trial de novo, all being there consolidated for trial, the petitions were granted and the transfers ordered. The case is here on appeal in the name of the county board of education, although it appears that Choctaw Special School District is the real party in interest.

In the circuit court, appellant moved to dismiss the appeal for want of jurisdiction on the ground that Choctaw Special School District was created by special act 381 of the Acts 1907, p. 961, and that the county board had no jurisdiction to order the transfers by reason of the last proviso in § 3 of act 143, p. 493, Acts of 1927, and that the circuit court acquired none on appeal. The court overruled said motion, and this is assigned as error. The act last referred to confers power on the county board to transfer children from one school district to another, but the proviso referred to is “that none of the provisions of this act shall apply to school districts created by special act of a previous Legislature.” It appears, however, that, in September, October and December, 1929, the county board had dissolved three other school districts in Van Burén County and “added,” “annexed,” or “attached” their territory to Choctaw Special, acting- under authority of act 156 of the Acts of 1927, as construed by this court in Manley v. Moon, 177 Ark. 260, 6 S. W. (2d) 281. It therefore became a consolidated district, and lost its identity as a legislative district by special act. Camp v. Barr, 181 Ark. 939, 28 S. W. (2d) 1071; Special School District No. 60 v. Special School District No. 2, 181 Ark. 253, 25 S. W. (2d) 443. And this is true, even though the consolidated district took the name of the former district created by special act. Camp v. Barr, supra. Upon the consolidations Choctaw Special ceased to be the same district created by the special act and no longer came within the proviso of act 143 of 1927, above referred to. It necessarily follows that the county board had jurisdiction of the subject-matter and the parties, that the circuit court acquired the same jurisdiction on appeal, and that the motion to dismiss was properly overruled.

It is next urged that the court should not have allowed the transfers because of the insufficiency of the evidence. Just what evidence is required to support an order to transfer, act 143 of 1927 does not state. Section 1 provides: ‘ ‘ That the county board of education shall have power, upon the petition of any person residing in any particular district, to transfer the children or wards of such person, for educational purposes, to an adjoining district, or to an adjoining district in an adjoining county; provided that said petitioner shall state under oath that the transfer is for educational purpose alone.” The authorization is to transfer “for educational purposes.” There may be some doubt as to whether the county board has any discretion in the premises, when the “petitioner shall state, under oath, that the transfer is for educational purposes” — a question we do not decide. Petitioners, ten of them in number, all resided in territory which had recently been annexed to Choctaw Special. The distance to either school is about the same, and most of them are conveying their children to school at their own expense. The effect of their testimony is that Clinton is the better school, has better teachers, better roads to it and better finances. We have examined the evidence, and find it substantial in support of the finding of the trial court.

It is finally urged that the circuit court tried the ease de novo, without any regard for the finding and judgment of the county board, which it was without authority to do. It is difficult to perceive how else the court could have tried it. The law provides for appeals from the orders of the county board to the circuit court, but fails to provide that the circuit court shall try the case on the record made before the county board. Appellant’s argument on this point is contrary to our decision in the recent case of School District No. 26 v. School District No. 32, 177 Ark. 497, 6 S. W. (2d) 826, where we said: “It was provided by act 183 of the Acts of the General Assembly of 1925 that a party to the record in a proceeding before any county board of education, who feels aggrieved by any final order or decision of such board, may prosecute an appeal therefrom within thirty days to the circuit court of the district. The argument is made that, because said act fails to expressly provide for trial de novo in the circuit court, the Legislature only intended that errors of law or gross abuse of the power by such boards might be corrected on appeal. Had this been the intention of the Legislature, the act would not have provided for a general appeal, but for one limited in scope. No provision is made in the law for making and preserving the record of proceedings before the county boards of education and for transmitting same to the circuit court. Without such a record, it would be impossible for the circuit court to determine whether errors were committed in the proceedings or whether such boards grossly abused the power conferred upon them. It is quite evident that the Legislature intended to allow any party to the record who felt aggrieved to ap.peal and try his case upon its merits in the circuit court.”

No testimony was heard by the county hoard in this case and none preserved in the transcript. We there?fore hold that the circuit court correctly heard the matter de novo.

We find no error, and the judgment is accordingly affirmed.


author: Butler, J.

text:
    Street Improvement District No. 74 v. Goslee.
    Opinion delivered March 30, 1931.

      Murphy Wood, for appellant.

      George P. Whittington and Arthur' 8. Gobb, for appellee.
   Butler, J.

Street Improvement District No. 74 of Hot Spring’s, Arkansas is a municipal improvement district organized under the provisions of § 5647 et seq. of Crawford & Moses’ Digest, for the purpose of paving Hobson Avenue in the city of Hot Springs for its length and further on along other streets to the west boundary of the city. The district extended a full block on each side of Hobson Avenue for most of its distance, and the back side of the blocks on each side of Hobson Avenue faced on streets which were not to be paved. These unpaved, streets are South Avenue, one block south of Hob-son Avenue and Rector Avenue, one block north of Hob-son Avenue, and facing on unpaved streets are the lots of appellee.

The fact that a part of the property in the district including that of the appellee did not abut on the paved street made a distinction between the assessment of benefits of the property facing the street to be paved and the property facing the streets one block away from the pavement. In making- the original assessment of benefits the property abutting on the pavement was assessed at about twice as much as the benefits assessed on the property facing the back streets, a part of which belonged to the appellees. The original assessment of benefits was made in 1924 which assessment was revised in 1926 and again in 1928. In neither of those years was any attempt made by the assessors to change the assessment against any piece of property unless its physical condition had been changed and its value thereby increased or diminished, but from the revision by the assessors in 1928, which made no change in the benefits assessed against the property of the appellees, the city council on appeal overruled the action of the assessors and reduced the assessed benefits on appellees’ lots to $100 for each lot, whereas the lowest assessment originally made was $280' and the highest $560.

This litigation grows out of the 1928 revision as ordered by the city council. There had been no change in the physical condition of appellee’s lots since the time of the original assessment, the council apparently basing its finding on the testimony that the original benefit was not fifty per cent, of that of the property abutting on the paved avenue as found and returned by the assessors in their original assessment, bnt the proportional benefits were much less, or that the benefits received were about one-fourth of that on the property facing the paved avenue.

Appellee finds authority for the act of the council in § 5664 of Crawford & Moses’ Digest, which provides: “The commissioners of any such improvement district may require the assessors thereof to revise their assessment not oftener than once per annum, increasing or diminishing the assessment against particular pieces of property as justice may require.” (Provision is made for notice of the reassessment and for appeals from the same to the city council). This section must be considered with other legislation on the subject and the general policy of improvement district laws, and, when so considered, we think the intent was that the assessments might not be increased or diminished except for some physical change in the condition of the property since the original assessment which would increase or diminish their value, or where there was a mistake in the assessment originally made which was demonstrably erroneous.

Section 5661 provides for the remedy for erroneous or inequitable assessments made by the board of assessors at the time of the formation of a district and the assessment of benefits, and we have held in repeated decisions that, unless the appeal provided for in that section was prosecuted within apt time, the assessment of benefits became conclusive except for some demonstrable error. This, of necessity, limits the powers of the assessors to make revision of the assessment for the purposes and reasons heretofore stated. It is the policy of the law that the assessment of benefits against each piece of property becomes fixed as of the time of the original assessment, so that the assessment may not be changed, for, as suggested by the appellant, great instability in property values might result with consequent loss in market value and be a hindrance to ready sales.

This conclusion makes it unnecessary to consider the other questions presented. The decree of the trial court is therefore reversed, and the cause remanded for such other proceedings according* to law as may be necessary to carry into effect the revision and assessment as made by the board of assessors.

Mehaeey, J., dissents.