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

text:
    Capps v. Judsonia & Steprock Road Improvement District.
    Opinion delivered June 5, 1922.
    1. Statutes — authority to call election. — Act No. 8 of Extraordinary Session of 1920, § 36, providing that the act should not become effective until approved by votes of the landowners of the proposed highway improvement district at an election to be held at a time and place to be fixed by the county court, requires that court to call such election, and vests in the court the discretion to fix the time and place for holding it.
    2. Constitutional law- — delegation of legislative power. — A statute creating a road improvement district which provides that the act shall not become effective until approved by a vote of the landowners at an election to be held at a time and place fixed by the county court, is not invalid as a delegation of legislative power to the county court.
    3. Statutes — referendum.—Crawford & Moses’ Dig., §§ 7510, 7512, relating to referendum of municipal ordinances under Amendment 7 of the Constitution, do not apply to an act of the Legislature creating a proposed highway improvement district and providing that it shall become effective only upon approval by vote of the landowners of the proposed district.
    4. Statutes — referendum.—Under Const. Amendt. 7, and Crawford & Moses’ Dig., § 9767, authorizing the General Assembly to order a referendum on any measure enacted, at such time and in such manner as the General Assembly may direct, the General Assembly may refer to the landowners of a proposed road improvement district the question whether or not the act should take effect; such election to be held at a time and place to be fixed by the county court.
    5. Statutes — notice of referendum.- — An order of the county court calling an election of the landowners of a proposed road improvement district to determine whether the act creating the district should be adopted, to be held at the usual voting places in a township in the proposed district, notice of which was published in the only weekly newspaper published in the district, was sufficient, in connection with testimony in the record showing that mass meetings were held in the district prior to the election, at which the question was discussed, to show that the landowners were given a fair opportunity to express their will on the issue.
    6. Highways — roads connected by highway. — Act 1920 (Ex. Session), No. 8, creating a road improvement district for the improvement of two designated roads, was valid where-the roads were connected by an improved road.
    7. Highways — entry op assessments in book. — Act 1920, No. 8, §§ 7 and 8, providing that the highway commissioners shall enter the assessment of benefits of the proposed district in a book to be filed with the county clerk, and that the secretary of the board shall publish notice of the filing, are mandatory and jurisdictional, and assessments are invalid where, at the time the notice was published, they had not all been extended on the book.
    Appeal from White Chancery Court; John E. Martineau, Chancellor;
    reversed in part.

      J. N. Rachels, for appellants.
    1. The act is inoperative, and section 36 thereof only renders it more so. An election to be held at a time and place to be fixed by the county court of White County confers no authority on anyone to call an election, the time and place for holding which may be fixed by the county court. If the county court should have refused to act on the subject, could it have been compelled to act? This court has said it could not. 47 Ark. 80-85; 104 Id. 583. An act must be clear and definite before it can be enforced. 122 Ark. '491-498. All elections on measures referred to the people must be had at the biennial general election, except when the Legislature orders a special election. 105 Ark. 380. See Amendment 7, Constitution. The county court could not act sua sponte. 17 Standard Procedure, 674- § 2 and cases cited; Id. 678 and cases cited. It could call the election, if it could do so at all, only under C. & M. Digest, §§ 7510 and 7512. There is nothing in the act indicating that the General Assembly ordered an election, and this court cannot supply that intention. 143 Ark. 83-87. See also 67 Ark. 30; 131 Id. 429; 104 Id. 298.
    2. Two -or more roads cannot be constructed under a single act which only provides for a single system with a single board of commissioners. 141 Ark. 288; Road Improvement Districts 1, 2 aAid 3 v. Grary, 151 Ark. 484; 118 Ark. 294-302.
    3. The assessment was arbitrary, capricious and confiscatory, was not made as provided by the act, and was not made and filed with the county clerk before the notice provided for by section 9 of the act was published. Cooley on Taxation, 3rd ed. 1252 and cases cited; Id. 1254 and cases cited; Id. 1257-1258; 88 'Wis. 599; 50 N. T. 502; 9 Wash. 253; 9 Standard Encyc. of Proc. 1158; 160 Pa. 499; 51 N. J. L. 267; 63 N. J. L. 202; 54 Cal. 536; 13 Ark. 198; 15 Id. 43-49; 15 Am. and Eng. Enc. of L., 2nd ed. 356; 50 Ark. 116-129; 89 Id. 513-5171 The list, called assessment list, was fatally defective under the requirements of section 7 of the act. These requirements are mandatory. 79 Ark. 236; 99 Id. 508.
    4. The notice of the election was insufficient, not only in the method and length of time of publication, but also in failure to designate the bounds of the district, thereby effectuating a fraud upon the landowners. 116 Ark. 167.

      John E. Miller and G. E. Yingling, for appellees.
    1. The act is definite and certain, and the election held thereunder was valid. The Legislature could not well have been more explicit in the language employed in section 36 of the act, without itself fixing the time, place and manner of holding the election, and it had the power to delegate that duty to the county court.
    This is a special act. The initiative and referendum amendment applies to laws of a general nature and not to special acts. See C. & M. Digest, §§ 9764, 9766, 9767; 104 Ark. 583; 104 Id. 516.
    Under the provisions of C. & M. Digest, § 9767, the Legislature itself could have refused this act to the people; also under its terms as also under the initiative and referendum, it had the power to refer the act in the manner it did.

      2. On the question as to whether or not the election held was legally sufficient, see 43 Ark. 66; 92 Ark. 70; 25 R. C. L. 772, § 19.
    3. The contemplated improvements constitute a single improvement. 139 Ark. 602-603; Id. 524; 142 Id. 58; 138 Id. 553; 137 Id. 354; 130 Id. 514.
    4. The method of assessment of benefits is valid. 141 Ark. 164; 137 Id. 568; 139 Id. 322; 147 Id. 449.
   Wood, J.

This is an action by the appellants, taxpayers and owners of real property, in what is known as the Judsonia-Steprock Road Improvement District (here after called district). The district was created by act No. 8 of the Acts of the General Assembly in extraordinary session, approved January 31,1920. The action is against the district and its commissioners. The complaint and the amendments thereto with the exhibits are voluminous, and we shall not undertake to set them out in detail, but will only state the issues in a general way and dispose of them in the manner in which they are presented in the brief of counsel for appellants.

1. Appellants contend that the act creating the district is not a complete act; that it is too vague to be operative, as shown by the provisions of section 36 of the act, which is as follows:

“Sec. 36. This act shall not become effective until after the same shall have been approved by a vote of the landowners of the territory hereinbefore described and embraced in said district, at an election to be held at a time and place to be fixed by the county court of White County, at which election only landowners of said district shall be permitted to vote, and provided that if either a majority in value as shown by the last county assessment, or acreage of the landowners in said district, voting in said election, shall vote for this act, the same shall be declared adopted by the county court of White County and shall at once become effective; provided, further, that at said election there shall be elected by the landowners in said district and voting in said election three landowners of the district as commissioners of said district by the county court of White County, which court shall also designate the term that each of said commissioners shall hold office, as hereinbefore provided, and the commissioners so appointed by said court shall hold office for the term designated and fixed by said court and until their successors are appointed, as herein provided; and provided further, that the returns of the election herein provided for shall be made to and canvassed by the county court of White County, which court shall make an order declaring the result of said election. ’ ’

•Counsel for appellants argue that the county court, under the above section, had no authority to call an election. When section 36 is taken as a whole, and the language used by the Legislature to express its intention is given its plain and natural meaning, it unquestionably shows that it was the intention of the Legislature to direct the county court of White County to hold an election at which the landowners in the territory should voice their approval or disapproval of the act, and provided that if either a majority in value as shown by the last county assessment, or acreage, of the landowners voting at said election shall vote for the act, the same should be declared adopted and at once become effective. It is the duty of the court to construe the language of the section as a whole and give meaning and effect to every word, if possible. When this is done, we have no doubt that the legislative purpose was to require an election to be held, and likewise to require the county court to fix the time and place of such election. The language, “at an election to be held at a time and place to be fixed by the county court, ” is as mandatory in its meaning and effect as if the Legislature had said “at an election which shall be held,” etc. The use of such language does not leave it optional or discretionary with the county court to call an election. This is mandatory; but the fixing of the time and place for such election is a matter within the court’s discretion.

No power is delegated to the county court to make the law, that is, to determine what the law shall be, but upon the county court is conferred the power, and it is made its mandatory duty, to ascertain, by voice or vote of the landowners in the district, at an election to be called by the county court, whether the majority in value or acreage will that the act shall become effective. Providing for “an election to be held at a time and place to be fixed by the county court” is tantamount to commanding the county court to call 'an election and to fix the time and place of such election. These were ministerial functions imposed upon the court. Under the language employed, such functions were imposed by necessary implication, and this could be, and was, done as effectually as by the use of express terms The court, sua sponte, could have exercised such function in the absence of any petition of interested landowners of the district, but in this case, as the record shows, there was a petition of ten landowners of the district which was made the basis of the court’s call. Had the court failed to act upon the prayer of such petition, then undoubtedly these landowners would have had a remedy 'by mandamus to compel it to call an election and fix the time and place thereof.

The case is ruled on this point by the cases of Boyd v. Bryant, 35 Ark. 69-74; Nall v. Kelly, 120 Ark. 277-286; Harrington v. White, 131 Ark. 291-294. In the latter case, we said: “It is insisted, in the first place, that the statute is void because it is an attempt to delegate legislative authority. It seems plain to us, however, that the statute is not a delegation of legislative authority, but comes within the rule that the Legislature may ‘make a law to delegate the power to determine some facts or state of things, upon which the law makes or intends to make its own action depend.’ Boyd v. Bryant, 35 Ark. 69; Nall v. Kelly, 120 Ark. 277.” We also quoted from the Supreme Court of Ohio in the case of Cincinnati, etc., Rd. Co. v. Commissioners, 1 Ohio St. 77, as follows:

“The. true distinction is between the delegation of power to make the law, which necessarily involves the discretion as to what it shall be, and conferring authority or discretion as to its execution to be exercised under and in pursuance of the law. The first cannot be done. To the latter no valid objection can be made.” After the above quotations, we conclude by saying: “Applying that test to the case in hand, it is plain that the statute does not amount to a delegation of the legislative power, but on the other hand the Legislature exercised its power by declaring what the law shall be when put into operation in a given locality by ascertainment of certain facts, i. e., the will of the majority in the given locality to be affected.”

2. Counsel for appellant next insist that if the county court had the power to call the election, it could only do so under the provisions of secs. 5110 and 5112 of Crawford & Moses’ Digest. The above sections have reference to the referendum of municipal ordinances passed under the authority of Amendment No. 7 of the Constitution, providing for general legislation under what is 'known as the initiative and referendum, and the enabling acts. See also secs. 9764 to 9767 C. & M. Digest, inclusive. The above sections, therefore, have no application to the act under review. This is a special act. Amendment No. 7, among other things, provides as follows : “All measures referred to the people of the State shall be had at the biennial general elections, except when the legislative assembly shall order a special election.” Sec. 9767, supra,, provides: “The General Assembly may order the referendum upon any measure enacted thereby, and the same shall be voted upon and the result of the vote thereon declared in the same manner as measures upon which the referendum has been ordered by petition, or at such time and in such manner as the General Assembly may direct.”

Unquestionably, under the above provisions of the Constitution and the enabling acts, the General Assembly had the power to refer' to the landowners of the district the question as to whether or not the act should take effect, such question to be determined at a special election to be held at a time and place fixed by the county court.

3. Since the provisions of the enabling acts pertaining to general legislation under the initiative and referendum, as to the time, place and manner of holding elections, have no application, the only question we need consider in regard to the election is whether or not the election called at a time and place designated by the county court and conducted in the manner directed by it, gave the landowners of the district a fair opportunity to express their will on the issue as to whether or not the act should take effect.

It could serve no useful purpose to set out, in extenso, the order of the county court calling the election. It shows that the election was to be held at the usual voting place in Harrison Township, White County, Arkansas, on the 13th day of March, 1920, and the notice of such election was dated February 18, 1920. This notice was published in the Judsonia Advance, a-weekly newspaper having a bona fide circulation in Harrison Township of White County, one of the townships included in the improvement district, the same being the only township of the district in which a newspaper was published. There is testimony also in the record tending to prove that p'rior to the election there were mass meetings held in the district at which the issue as to whether or not the law should fake effect was discussed.

Without discussing the matter further, it suffices to say that the manner in which the county court conducted the election was sufficient to give the landowners of the district a fair opportunity to voice their wishes on the issue. No act of fraud is alleged, or shown, in the conduct of the election on the part of those designated to hold the same, and it is not proved by the appellants that the result of the election as declared by the county court was other than the free and intelligent choice of a majority in acreage and value of the landowners of the district voting at the election. We are convinced, therefore, that the act was duly adopted in compliance with sec. 36 of the act, and should become effective from and after the 20th of March, 1920, as declared by order of the county court, unless the act contains other provisions which render it invalid.

4. The appellants contend that there are two roads to be improved, and two separate and distinct improvements, which cannot be grouped together for the purpose of taxing the landowners in the district as for a single improvement. Counsel for appellants, in his brief, attaches a copy of the map which was on file with the county clerk of White County, showing that there are two roads to be improved. Sec. 27 of the act provides: “The commissioners of said district may, at any time hereafter, subject to the approval of the county court of White County, and in accordance with the provisions of this act, extend and improve the roads herein provided for or improve any of the roads in said district connecting the roads herein provided for, or either of them, with any other improved road in said district, or connecting either of said roads herein called for with the other; provided, however, that the improvement of any road or roads not herein provided for shall not cause the cost of construction of all the roads so improved in said district to exceed in cost forty per cent, of the value of the lands and real estate and real property in said district, as shown by the county assessment in effect at the time said additional road or roads are to be improved.”

Section 8 of the act provides as follows: “If the commissioners conclude that lands not within the boundaries of the district, as hereinbefore laid out, will be benefited by the improvement of the roads, they shall assess the benefits and damages to such lands and return a separate assessment thereof.”

The testimony of F. O. White, county judge of White County, was to the effect that the two -roads shown on the map and described in the act as the roads to be improved by the creation of this district are connected by an improved road known as the State highway, and that this highway lies entirely within the boundaries of the district. It will be observed that section 27 conferred upon the commissioners the power., subject to the approval of the county court, to “improve any of the roads in the said district connecting the roads herein provided for, or either of them, with any other improved road in said district, or connecting either of said roads herein called for with the other.” The trial court was therefore justified in finding as a.fact that, under the uncontroverted evidence, the roads to be improved constituted but a single scheme or project for the improvement of these highways. But, aside from this, there is nothing in the record to dempnstrate that the determination by the General Assembly that the improvement contemplated constituted but a single project was an arbitrary and unreasonable exercise of legislative power. Our conclusion that the act is not invalid because it creates a district for the improvement of two roads specifically designated, and other connecting roads mentioned, constituting but a single scheme of local improvement, is in accord with numerous decisions of this court. Therefore we need not pursue the question further. Bennett v. Johnson, 130 Ark. 507-514; Tarvin v. Road Imp. Dist. 137 Ark. 354-364; Sallee v. Dalton, 138 Ark. 549-553; Booe v. Simms, 139 Ark. 595-602-3; Van Dyke v. Mack, 139 Ark. 524; Easley v. Patterson, 142 Ark. 52-58; Desha Road Imp. No. 2 v. Stroud, 153 Ark. 582, where the cases are collated.

5. The appellants challenge the validity of the assessment of benefits made by the commissioners on various grounds, only- one of which it is necessary to discuss and decide. Section 7 of the act provides, among other things, as follows: “The commissioners shall proceed to assess the lands within the district and shall inscribe in >a book each tract of land, and shall assess the value of the benefits to accrue to each tract by reason of such assessment, and shall enter such assessment of benefits opposite the description, together with the estimate of the probable cost to the landowners. * * * * * The commissioners shall also assess all damages that will accrue to any landowner by reason of the proposed improvement, including all injury to lands taken or damaged ; and where they return no such damages as to any tract of land, it shall be deemed a finding by them that no damages will be sustained.” Section 9 provides, in part, as follows: ‘ The assessment of benefits of said district shall be filed with the county clerk of White County, and the secretary of the board shall thereupon give notice of its filing by publication for two weeks in a newspaper published and having a bona fide circulation in that county. This notice may be in the following form: Judsonia and Steprock Road Improvement District. Notice is hereby given that the assessment of benefits and damages of the above district has been filed in the office of the county clerk of White County, where it is open to inspection,” etc. (Then follows a provision for description of land beyond the district). The notice concludes by calling upon all persons wishing to be heard to appear on the day named.

One of the commissioners, the secretary of the board, testified that the board of commissioners authorized one Louis Bell to do the mechanical work of extending the benefits. Prior to that time the board had determined upon the method for arriving at the benefits, and gave instructions to Bell as to the method to be pursued. The board met on the 24th of November for the purpose of assessing the benefits. At that time Bell had not finished the work of extending the benefits on all the land, “but had the work completed and was working on the books to put in on there. He had most of it on the books.” The testimony of this witness further shows that the record of the board “does not show the benefits assessed against each separate piece of property.” The board, as assessors of the district, certified that the assessments as the same appeared on the commissioners’ records were equitable and just, to the best of their knowledge and belief. This certificate was signed by them on the 24th of November, 1921. At this time, as his testimony above shows, Bell had not finished the work- — that is, had not succeeded in actually extending the benefits on -all of the lands.

Bell testified concerning this in part as follows: At that time and before the 24th of November, 1921, he had figured up the entire benefits. On that d-ay the commissioners signed the certificate, but all of the assessed benefits were not actually written down in the book. The above testimony was uncontroverted, and it shows that sections 7 and 9 of the act had not been complied with as above set forth in regard to the assessment of benefits before the notice required by section 9 was published.A majority of the court have reached the conclusion that sections 7 and 9 require that the commissioners as assessors shall enter the value of benefits to accrue to each tract of land in a book opposite the description of each tract, and that tins book, showing the benefits assessed against each tract, shall be filed with the county clerk of White 'County; that these provisions are mandatory, and were intended for the benefit of the property-owner, and were therefore jurisdictional requirements which had to be complied with before the secretary of the board was authorized to give the notice specified in the statute. The language of these sections shows that the Legislature contemplated that the assessment of benefits in the manner indicated was to be complied with as a condition precedent to the notice and the hearing provided for before the commissioners for the- equalization and adjustment of the assessments of benefits. The notice was essential in order that the property owners might examine the book containing the assessment of benefits to determine whether or not they were objectionable and whether or not they desired to be heard upon the assessments, and, if so, to prepare for such hearing. It was not enough that the property owners should have the right simply to appear before the commissioners on the day specified in the notice. The statute was framed so as to give the property owner the right to examine and compare his own assessment with every other assessment in the district, in order to determine whether the assessment as a whole, or his own assessment of benefits as compared with the others, was fair and just, or whether it was unequal, inequitable, and discriminatory.

It follows that the assessment of benefits made by the board of commissioners as assessors of the district was null and void. The court erred in not so holding and in dismissing that portion of the appellant’s complaint which called in question the validity of such assessment. On account of this error the decree is therefore reversed, and the cause remanded for further proceedings according to law and not inconsistent with this opinion.

McCulloch, C. J.,

(dissenting). I do not think that the requirement of the statute that the completed assessment list should be filed with the county clerk before the publication of notice is jurisdictional, and avoids the assessment if not complied with. The purpose of the requirement is to give the owners of property an opportunity to be heard as to the correctness of the assessments— to provide a time and place for such hearing and notice thereof in advance. The specification 'of time of two weeks is not for the purpose of giving that much' time to prepare for a contest, but it is to insure publicity, so that every interested owner can be advised of the hearing. The failure to file the completed list was a mere irregularity, and should be disregarded unless prejudice actually resulted. In this instance the list was incomplete when filed on the day the notice was given, but it was completed before the day set for the hearing, and every landowner had an opportunity on that day to contest the correctness of the assessment. In fact, the landowners who are parties to this suit appeared, and their complaints against the assessment were heard, therefore the failure to complete the list of assessments before it was filed had no prejudicial effect whatever.

Of course, if the owners of property had been deprived of the opportunity to be heard on account of the failure to complete the assessment list before the day of hearing — in other words, if they were deprived of the fullest opportunity to be heard in complaint against the assessments — then a court of equity should grant relief, even treating the failure to file the list in time as a mere irregularity; but where no harm resulted, the assessments should not be avoided on account of the irregularity.

The commissioners do not sit as a court, though, in passing on complaints against assessments, they act in a quasi-judicial capacity; and strict compliance with the requirements of the statute should not be exacted as to matters affecting the jurisdiction of the board. Substantial compliance with the statute is all that should be required.


source: Caselaw Access Project

author: McCulloch, C. J.

license: Public Domain

text:
    Abston v. State.
    Opinion delivered May 29, 1922.
    1. Conspiracy — sufficiency of evidence. — In a prosecution for night-riding under Crawford & Moses’ Dig., § 2795, evidence that accused and others banded themselves together for the purpose of blowing up some strip-pit mines during the night time, and that, when arrested in an abandoned slope near the mines, they were armed and masked, held sufficient to warrant a conviction.
    2. Criminal law — question for jury. — Where the evidence was conflicting, the question whether a witness was an accomplice was for the jury.
    3. Conspiracy — sufficiency of evidence. — Under an indictment which charged that accused conspired to wilfully damage a certain strip-pit mine, evidence that three strip-pit mines adjoined each other, and were not far from where accused and his confederates were arrested, held sufficient to show that they intended to damage the strip-pit mine described in the indictment.

      4. Criminal law — exemption of witnesses from rule. — It was within the court’s discretion to exempt the prosecuting attorney, sheriff and deputy sheriff from the rule against the presence of witnesses in the courtroom.
    5. Conspiracy — admissibility of evidence. — In a prosecution for night-riding, evidence of the finding of firearms and ammunition on the morning after the arrest of the accused and his confederates, at the place of the alleged unlawful assemblage, held admissible.
    6. Conspiracy — evidence.—Evidence as to the finding of dynamite in a weather-beaten condition near the scene of an unlawful assemblage two weeks thereafter was properly admitted as against the objection that it was too remote; the weight of such evidence being for the jury.
    7. Criminal law — general objection to instruction. — A mere general objection to an instruction does not preserve for review the question whether the instruction is calculated to confuse and mislead the jury.
    Appeal from Johnson Circuit Court; A. B. Priddy, Judge;
    affirmed.

      Webb Covington, for appellant.

      J. S. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.
   McCulloch, C. J.

Appellant was indicted and convicted of the crime of night-riding, a felony under the statutes of this State. Crawford & Moses’ Digest, sec. 2795 et seq.

There were two counts in the indictment, the first one charging that appellant and Bob Ragon, Otis Clark, Bascal Morgan and Jim Cornett “did unite, confederate and band themselves together for the wilful and unlawful purpose of doing an unlawful act in the night time by wilfully, unlawfully and maliciously injuring the "mining property of Werner-Dunlap Coal Company.” The other count alleged that appellant, together with the persons named in the first count, “did unite, confederate and band themselves together for the purpose of doing unlawful acts while riding masked, and being disguised and armed, and then and there wilfully, unlawfully and feloniously, while so masked and disguised and wearing arms, did" go forth in the night time for the purpose of wilfully, unlawfully and maliciously damaging and destroying the mining property of Werner-Dunlap Coal Company.”

According to the evidence adduced, the offense was committed in the coal regions of Johnson County, near Spadra.

Appellant was the secretary of one of the miners’ unions operating.in the locality, and there was friction between the union miners and the operators concerning the conduct of the operators in bringing in non-union labor to work in the mines. The character of mining done there was what is called “strip-pit” mining. The coal lies near the surface, and the method is to strip the earth from the surface down to the layers of coal and then mine out the coal without sinking a shaft or slope.

It appears from the testimony that there were in that locality three mines of this character, all of which were adjoining each other, and one was owned and operated by the Werner-Dunlap Coal Company, a copartnership composed of Lewis Werner and Bob Dunlap. These mines were within a mile or two of the place where appellant and his associates were alleged to have gathered for the purpose of committing the unlawful act of injuring’ the mining property.

The offense is alleged to have been committed on Saturday night, September 24, 1921.

According to the evidence, the union of which appellant was the secretary and one of the leaders, met in regular session on the preceding Tuesday night at the hall where they were accustomed to meet, and near the close of that meeting appellant privately requested a portion of the members — twelve or fifteen of them. — to meet him across the railroad track for a conference. According to the testimony, when this small number of the members of the union met across the railroad with appellant, he addressed the assemblage and stated that the strip-pit mines were a menace to the community, that the course pursued by the operators was starving the miners and their families, and that they (the miners) must g*et rid of the strip-pit mines. Appellant suggested that those present go out and blow up the strip-pit mines and run the inmates off, and called a meeting and suggested that all present assemble the following Saturday night at an abandoned slope in an old field or prairie, a few miles distant. This testimony comes from one Wilson, a witness who, according to some of the testimony adduced, was an accomplice.

Before the date named, Wilson informed Mr. Dunlap of the plan, and the sheriff and his deputies were at the designated place (the old slope) on Saturday night, and there arrested appellant and numerous other parties who were masked and armed. Firearms were taken from the persons of appellant and other parties, and the next morning the sheriff found guns and ammunition at the “place where they had assembled the night before. About two weeks later one of the deputies of the sheriff found some dynamite concealed in a stump near' one of the strip-pits and also the fuse, which had been'rained on, and had been concealed at that place for a considerable length of time, at least long enough to become weather-beaten.

There is a conflict in the testimony, and appellant denied all the charges with respect to conspiracy to injure property, and also denied that he wore a mask at the time he was arrested at the slope. He admitted that lie was armed at the time, as did others who were arrested at the same time, but they all claimed that, on account of the bringing in of lawless non-union miners, it was necessary to go armed for self-protection. Appellant denied that he advised unlawful methods or that he met or conspired with any parties for the purpose of committing any unlawful act, and stated that he passed along by the old slope for a wholly different purpose and on a different mission.

The evidence tends to show that appellant and those who were arrested with him on the occasion named were men of good character in the community.

Our conclusion is that the evidence was sufficient to sustain the verdict.

It is earnestly insisted that Wilson, according to the undisputed evidence, was an accomplice,, and that there was not sufficient corroboration. We are of the opinion, however, that it is not undisputed that Wilson was an accomplice in the commission of the alleged offense, but that there was enough evidence to justify a submission of that issue to the jury. This was done by one of the court’s instructions.

Wilson admitted that he was at the meeting of the miners’ union on Tuesday night, and that he attended the private meeting called by appellant after the adjournment. He admits listening to appellant’s proposition to the other men to mask themselves and join together for the purpose of committing an unlawful act, and that he asked the question, in response to appellant’s proposition, why they did not send off and get non-resident persons to come in and use the dynamite; but on direct inquiry he stated that he did not agree to go into the enterprise with appellant and the others, and that before the meeting at the slope on the following Saturday night he informed Dunlap of the plans, and that he attended the meeting at the request of the sheriff and not for the purpose of joining in the unlawful acts to be ■thereafter committed.

Appellant requested the court to give an instruc--. tion telling the jury that Wilson was an accomplice and must be corroborated. The court refused to give that instruction, but did give one submitting to the jury the question whether or' not Wilson was an accomplice, and stating that if it was found that he was an accomplice he must be corroborated before there could be a conviction on his testimony.

It is .also urged that the evidence fails to make out the offense because it does not show that .the property of the Werner-Dunlap Coal Company was to be injured, but merely shows that the parties agreed to blow up or damage the strip-pit mines, without indicating which ones weré to be subject of attack.

The three strip-pits were adjoining each other and not very far distant from the place where appellant and his co-conspirators assembled, and the inference was warranted that they intended to direct their operations toward all of the strip-pits in that locality, including the one owned and operated by the Werner-Dunlap Coal Company. The evidence on that issue was, we think, sufficient.

It is next contended that the court erred in enforcing the rule against the presence of witnesses in the court room, in exempting three of the State’s witnesses from the operation of the rule. The witnesses .exempted were the sheriff himself (Mr. Bartlett), Brock, the prosecuting attorney, who acted as one of the sheriff’s deputies on the night appellant and his associates were arrested at the slope, and W. S. Jett, who was also a deputy sheriff but was an employee at the mines.

It was a question within the discretion of the court in determining which of the witnesses should be exempted from the operation of the rule, and we cannot say that there was an abuse of the discretion in this instance. Vance v. State, 70 Ark. 272; St. L. I. M. & S. Ry. Co. v. Pate, 90 Ark. 135.

It was clearly competent for the State to prove the finding of firearms and ammunition at the place of the alleged unlawful assemblage the next morning after the parties were arrested, but it is contended that the finding of the dynamite and fuse two weeks later near the strip-pit was too remote to be admissible.

No precise rule can be laid down with respect to admissibility of testimony concerning conditions existing after the commission of an offense. In some circumstances .the court may say, as a matter' of law, that it is too remote, and again, under other circumstances, it may be determined as a matter of law that the general condition is not remote and should he considered as evidence, and still again, under other circumstances, it may be a question to submit to the jury to determine the remoteness of the circumstances adduced in evidence. Of course, in either event, the weight of the testimony is a question for the jury. The finding of dynamite secreted near the scene of the crime two weeks after its commission would appear to be too remote a circumstance to throw any light upon the issues involved, and, if nothing else is shown, the circumstances would perhaps be inadmissible, but in this instance it was shown that the explosive appeared to be weather-beaten, as if it had been there some time, and the jury could have inferred that the explosive had been secreted there about the time of the commission of the offense, and this would be a circumstance tending, in some degree, to show that there had been preparations made to blow up the mine. It was, as before stated, a question for the jury to determine what inference should be drawn from that circumstance, and we think it was a competent circumstance to go to the jury.

It is contended that the court improperly permitted the State to introduce in evidence statements of the co-conspirators in the absence of appellant after the arrest of the former, but we do not find in the record that any such testimony was introduced.

Error of the court is assigned in giving the following instruction:

“In determining whether or not the defendant and these parties alleged in the indictment, or either of them, united or banded themselves together or confederated themselves together for the purpose of doing an unlawful act charged, it is proper, of course, and you may take into consideration, not only all the evidence that has been introduced, but all the facts and circumstances to which the witnesses have testified in this case, in determining whether or not such a confederation or such a uniting or such a banding took place between the defendant and those charged, or any of them. That is true, of course, in all 'cases. That is what in law is called direst evidence. And all the direct testimony and all the circumstantial evidence may be taken into consideration by you in determining the guilt or innocence of the defendant in this case.”

The objection to this instruction was general and not specific. The language used expressed a confused distinction between direct evidence adduced • and proof of facts and circumstances, but, when the whole of instruction is considered together, it is manifest that the court meant to deal with the subjects of direct evidence and circumstantial evidence. If objection was to be made to that feature of the instruction, it should have been done specifically.

The particular argument made here against the instruction relates to that part which refers to the banding together “between the defendant and those charged, or any of them,” it being contended that this permitted the jury to convict appellant upon proof of the banding together of any of the alleged conspirators.

If it be conceded that this language is of doubtful meaning and could be construed to mean that the defendant could be convicted on such proof, the objection ought to have been made specific. The instruction correctly directed the jury to consider, not only the direct testimony, but all the circumstances in the case, for the purpose of determining whether or not appellant and the other parties named assembled together and masked themselves for the purpose of committing an unlawful act in the night time. There is direct testimony on this subject, and, aside from the direst testimony of Wilson, the principal witness, it is a strong circumstance that appellant and numerous other parties were discovered gathered together at this remote place in the night time, masked and armed.

We do not think that this instruction was erroneous, or, at least, that it contained such obviously erroneous statements which could be reached by a general objection.

Error of the court is assigned in refusing to give some of the instructions requested by appellant, but we are of the opinion that the refused instructions were fully, or at least sufficiently, covered by those which the court gave.

The evidence was considered by the jury, and by the trial court on the motion for a new trial, and since it is legally sufficient to sustain the verdict, we do not feel at liberty to disturb it.

There is no error-found in the record, and the judgment will therefore be affirmed.


author: McCulloch, C. J. Hart, J.,

text:
    Webb v. State.
    Opinion delivered May 29, 1922.
    1. Homicide — sufficiency of evidence. — Evidence tending to show that defendant struck the deadly blow with a gun barrel without provocation, with malice aforethought, and after deliberation, held to sustain a verdict of murder in the first degree.
    2. Criminal law — harmless error. — Where, in a prosecution for murder, a witness for defendant was allowed to testify without objection that defendant had previously been convicted of resisting an officer, it was not prejudicial error, on cross-examination of defendant, to permit defendant to be interrogated concerning such conviction, where defendant detailed exculpating circumstances concerning the conviction.
    3. Homicide — failure to instruct as to mode of punishment.— In a prosecution for murder, where no request therefor was made, the court’s failure to instruct that the jury, on finding defendant guilty of murder in the first degree, might fix his punishment at death or life imprisonment, was prejudicial error, where the jury found defendant guilty of murder in the first degree without fixing the punishment.
    Appeal from Lafayette Circuit Court; George 17, Ilaynie, Judge;
    affirmed.

      D. L. Purkins and A. II. Hamiter, for appellant.

      J. 8. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistant, for appellee..
   McCulloch, C. J.

Appellant was indicted by the grand jury of Lafayette County for tbe crime of murder in tbe first degree, and on tbe trial of tbe case tbé jury rendered a verdict finding appellant guilty of murder in the first degree, as charged in the indictment, and judgment was rendered on the verdict for the imposition of the punishment of electrocution.

Appellant is a negro, and the charge against him is the killing of another negro named Elmond Green by striking Mm with a gun-barrel. The Mlling occurred at night near the home of a negro woman named Mary Ford, where there was a small social gathering attended 'by a small party of negroes of both sexes.

Green and one of Mary Ford’s daughters, Leona, decided to attend a social gathering at another place, and-went out in front of Mary Ford’s house to get in Green’s buggy. The girl testified that, after she got into the buggy, Green walked around to unhitch the horse, and that she heard the sound of blows, and thinking that Green was striking the horse, she called to Rufus Huie, another negro, who was standing on the porch, to come out and make Green stop beating the horse. Huie ran out, and when he reached the place he discovered that appellant had been striking Green. When Huie ran out there, appellant commanded him to stand back, and threatened to shoot. Another witness says he heard Huie state, after he had gone out to the place of the killing, that “Bill Webb has killed Elmond,” and that appellant exclaimed, “God damn you, this is Mr. Bill Webb tonight.” A pair of gun-barrels were found at the spot, with 'blood on the breech end.

The evidence tends to show that appellant was secreted in the bushes near the place where Green’s horse was hitched, and that he was lying in wait for Green.

There is other evidence which establishes the fact that appellant and his wife had separated» and that there was some trouble between them on account of Green’s attention to appellant’s wife.

Appellant himself testified that he went to Mary Ford’s house that night to pay a small sum of money that he owed to one Nesbit, and that when he got near the house he heard a conversation between Green and his (appellant’s) wife, and heard Green threaten to whip her, when he (appellant) interposed, and that Green then thrust his hand in his bosom as if to draw a weapon.

Appellant testified that he did not strike Green with a gun-barrel, but struck him with a stick.

The • evidence was sufficient to sustain the verdict for murder in the first degree.

The evidence tends to show that appellant was lying in wait, and that he struck the deadly blows with the gun-barrel, and did so without any provocation, with malice aforethought and after deliberation.

Appellant introduced as a witness A. B. Knight, a white man, in whose family appellant’s wife was cooking, for the purpose of proving that appellant and his wife had not separated but were on good terms, and that appellant visited his wife frequently at the home of witness. On cross-examination, the prosecuting attorney drew out from the witness Knight that prior to that time he had paid a fine for appellant upon the conviction of the latter for resisting an officer. On re-direct examination, appellant’s counsel re-examined Mr. Knight on that subject and had him state the occasion and the person with whom appellant was having a difficulty when he resisted an officer. There was no objection made to this testimony of Mr. Knight.

Appellant testified in his own behalf, and on cross-examination the prosecuting attorney was permitted to interrogate appellant, over the objection of his counsel, concerning his conviction of the offense of resisting an officer. The court overruled the objection, and appellant testified concerning the circumstances under which he resisted the officer. Appellant admitted that he had entered a plea of guilty, hut his explanation of the incident was to the effect that his conduct on the occasion named did not amount to resisting an officer. The ruling of the court on this subject is now assigned as error.

We have often held that a defendant may, on cross-examination, ¡be interrogated concerning any of his past conduct which might affect his credibility as a witness. It is unnecessary to determine whether or not the present instance comes within that rule, for appellant’s own statement was more favorable to himself than the other witness, Mr. Knight, who did not pretend to detail the exculpating circumstances attending the alleged offense of resisting an officer, but merely stated that appellant had been convicted, and that he (witness) had paid the fine. This testimony went in without objection, and we cannot see that it added anything prejudicial to appellant to permit, him to make an explánation of the circumstances according to his own version of them. Appellant did not ask for the exclusion of Knight’s testimony, and, as before stated, we cannot see that his own testimony would make any more unfavorable impression than that made by the testimony of Knight.

We conclude, therefore, that there was no prejudice in this ruling of the court, without deciding whether or not it was competent to draw out from appellant on cross-examination the fact that he had been guilty of the crime of resisting an officer — an offense which might, or might not, involve moral turpitude so as to affect the credibility of the witness.

The form of the verdict rendered by the jury was as follows: “We, the jury, find the defendant guilty of murder in the first degree. J. T. Kennedy, Foreman,” and, as before stated, the court rendered judgment for the extreme penalty of electrocution.

There is a statute fixing the punishment for murder in the first degree at electrocution, but there is another statute which reads as follows:

“The jury shall have the right in all eases where the punishment is now death by law, to render a verdict for life imprisonment in the State Penitentiary at hard labor.” Crawford & Moses’ Digest, § 3206.

We have.decided that the statute just quoted did not repeal the old statute fixing the penalty at electrocution, but merely gave the power to the jury to reduce the punishment to life imprisonment, and that a verdict finding the defendant guilty of that crime, without fixing the punishment at imprisonment, called for a judgment for the extreme penalty of electrocution. Kelly v. State, 133 Ark. 261.

In the present case it appears from the record that the court did not instruct the jury as to the form of the verdict and was not asked to do so. It is now contended by appellant’s counsel that it was error for the court to fail to give such an instruction informing the jury that it was within their power to reduce the punishment to life imprisonment, and that an order ought to be entered here reducing the punishment in order to eliminate the error.

We have steadily adhered to the rule that it is not error for a trial court to fail to give an instruction on a given subject unless the court is requested to do so. Allison v. State, 74 Ark. 444; Scott v. State, 77 Ark. 455; Mabry v. State, 80 Ark. 345; Hobbs v. State, 86 Ark. 360; Snyder v. State, 86 Ark. 456; Ray v. State, 102 Ark. 594. We have applied this rule in cases where the court had failed to give instructions on the lower . degrees of homicide.

There is nothing in the statutes of this State which requires a court to give instructions unless requested by the parties to do so. The only statute on the subject reads as follows: “When the evidence is concluded the court shall, on motion of either party, instruct the jury on the law applicable to the case.” Crawford & Moses’ Digest, sec. 3179.

We perceive no reason why the rnle announced above should not be applied to the failure of the court to give an instruction concerning the power of the jury to reduce the punishment for murder in the first degree to life imprisonment. It rests upon the same principle as the failure to give any other instruction of law applicable to the issues involved in the trial. We believe it to be good practice for the court in all murder cases to inform the trial jury that they have the power to fix the punishment at life imprisonment, but there is no error in the court’s failure to do so unless attention is called to it by a request for an instruction on that subject.

Affirmed.

Hart, J.,

(on rehearing.). Counsel for appellant contends that, inasmuch as the statute gives the jury an alternative right to fix the punishment in capital cases at death or life imprisonment in the State Penitentiary, the court erred in not charging the jury with respect to the punishment. In this contention we think counsel are correct, and that the motion for a rehearing should be granted. It is true that this court has set its face against errors which do not affect the merits, but in a capital case justice requires that the jury be told what duties the statute devolves upon it to perform in the way of fixing the punishment of the accused, provided he is found guilty.

•Sec. 3205 of Crawford & Moses’ Digest provides that the jury shall, in all cases of murder, on conviction of the accused, find by their verdict whether he is guilty of murder in the first or second degree.

Sec. 3206 provides that the jury shall have the right, in all cases where the punishment is now death by law, to render a verdict of life imprisonment in the State Penitentiary at hard labor.

The statute provides that the jury, and not the court, shall have the right to fix the punishment, and it follows that, under such a statute, it is necessary to inform the jury of the punishment imposed by the statute in order that it may properly exercise the right vested in it. If the court Md\ explained to the jury the distinction and difference of penalty of murder in the first degree, the. finding of th,e (j'ury might have been different. By not telling the jury that it had a right to fix the punishment of the defendant at life imprisonment, the latter was deprived of a substantial right. The right to exercise the discretion under the statute was given to the jury, and the court could not exercise it.

We think this holding is in accord with the rule laid down in Winkler v. State, 32 Ark. 539. The reason for the rule in such cases is clearly expressed by Mr. Justice Harlan in Colton v. Utah, 130 U. S. 83, as follows:

“Without such recommendation the court, in the absence of sufficient grounds for a new trial, has no alternative but to sentence the accused to suffer death. While in this case the jury were instructed as to what constituted murder in the first and second degrees, they were not informed as to their right, under the statute, to recommend imprisonment for life at hard labor in the penitentiary in place of punishment of death. If their attention had been called to that statute, it may be that they would have made such a recommendation, and thereby enabled the court to reduce the punishment to imprisonment for life. We are of the opinion that the court erred in not directing the attention of the jury to this matter. The statute evidently proceeds upon the ground that there may be cases of murder in the first degree, the punishment for which by imprisonment for life at hard labor will suffice to meet the ends of public justice. Its object could only have been met through a recommendation by the jury that the lesser punishment be inflicted, and it is not to be presumed that they were aware of their right to make such recommendation. The failure of the court to instruct them upon this point prevented it from imposing the punishment of imprisonment for life, even if, in its judgment, the circumstances of the case rendered such a course proper.”

So, too, in Blair v. Commonwealth, 7 Bush (Ky.) 227, it was held that the instructions to the jury were prejudicial to the defendant in not submitting to its determination whether, if the defendant was found guilty, his punishment should be death or confinement in the penitentiary.

In Cesure v. State, 1 Tex. Ct. of Appeals 19, it was held that on the trial of offenses to which alternative penalties are attached, it is the duty of the district judge, whether asked or not, to give such alternative penalties in the charge to the jury, and that an omission to do so is error.

The court said that under such a statute the question of punishment to be inflicted is a matter entirely discretionary with the jury, and is as legitimate a subject of inquiry by them as any other question involved in the case. The court further said that, in failing to give a charge submitting this question to the jury, the trial court committed a material error calculated to injure the rights of the defendant, for which a new trial should have been granted.

In Mays v. State, 143 Tenn. 443, 226 S. W. 233, the court had under consideration a statute allowing the jury, upon finding mitigating circumstances, to commute the punishment, upon conviction in capital offenses, to imprisonment for life. The court reaffirmed the rule announced in an earlier case that the language of the act clearly vested in the jury the exclusive power and authority to fix the punishment of defendants in cases where they have been convicted of murder in the first degree. The court further held that the act was mandatory.

In the case last cited the State contended that the law fixed the punishment for murder in the first degree at death, except where the jury should find mitigating circumstances, and that therefore, when a simple verdict of guilty of murder in the first degree was rendered by the jury without a finding of mitigating circumstances, the death penalty followed by force of the law, and the act of the trial judge in imposing said penalty was but ministerial.

The-court said that, under the act, the jury did not have to make any finding at all of mitigating circumstances in the sense of stating such a finding in their verdict, in order to impose less than the death penalty.

The court said further that the matter of punishment within the limits stated was one for the discretion of the jury, and that the jury might reduce the punishment if it was of the opinion that there were mitigating circumstances.

The court reaffirmed the rule that the statute committed to the jury the power of assessing the punishment and that this power was exclusive. It was held that a verdict which did not fix the punishment was a nullity, and that no valid punishment could be based thereon.

In the present case the finding of the jury might have been different, had the court explained to the jury the alternative right given it by the statute in fixing the punishment of the accused. Therefore, the majority of the court is of the opinion that, the punishment prescribed by the statute being alternative in its character, and the statute having made it the duty of the jury to exercise its discretion in fixing the punishment, it was part of the law applicable to the case, and the trial court erred in not charging the jury in regard to the discretion to be exercised by it in case the accused was found guilty of murder in the first degree.

The error can be cured, however, by reducing the punishment of appellant to life imprisonment. The sentence of death for murder in the first degree will be set aside, and the sentence reduced to imprisonment for life in the State Penitentiary at hard labor, unless the Attorney General elects within two weeks to have the judgment reversed and the cause remanded for a new trial.

McCulloch, C. J., and Humphreys, J., dissent.


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

text:
    Little Red River Levee District No. 2 v. Garrett.
    Opinion delivered May 29, 1922.
    1. Banks and banking — knowledge of officers. — A bank with which bonds proposed to be issued by a levee district were deposited by the latter’s directors, who were also officers of the bank, and in control of its affairs, is charged with knowledge of such officers’ fraudulent conduct in attempting to sell the bonds to the bank without authority and for their own purposes, and was not an innocent purchaser of the bonds.
    2. Principal and agent — notice of agent. — An agent’s knowledge is ordinarily imputed to the principal unless the agent acts for himself or has a personal interest rendering it improbable that he will report his knowledge to his principal.
    3. Corporation — notice to officer. — The exception to the general rule of imputing an agent’s knowledge to his principal of cases where the agent acts for himself or has a personal interest, does not apply where an officer of a corporation acts as its -,ole representative or agent in the transaction, or where he is the corporation without accountability to any superior.
    4. Levees — notice of want of authority to sell bonds. — A bank’s acts in purchasing levee district bonds from its controlling officers, who were also directors of the district, and crediting the proceeds to their individual accounts, was sufficient to charge it with knowledge of their want of authority to sell for their own benefit, even if they were not its only representatives m the transaction.
    5. Banks and banking — liability for diversion of levee district’s bonds. — In a suit by a levee district against the receiver of a bank for an accounting, in the absence of proof that the proceeds of levee district bonds credited by the bank to the individual accounts of the controlling officers of the district, who were also controlling officers of the bank, were used for the benefit of the district, the bank is chargeable with the amount thereof.
    6. Banks and banking — diversion of property — burden of proof. —In a suit by a levee district to hold a bank liable for diverting proceeds of sale of its bonds, where plaintiff contended that the bank should be charged with the proceeds of an unauthorized sale by a district director, the plaintiff had the burden of showing by a preponderance of testimony that the bank received these funds, it not being sufficient to show that the director had been guilty of other misappropriations and that it was not improbable that he had placed such funds in the bank.

      7. Banks and banking — liability for diversion of levee district’s funds. — In a suit by a levee district to hold a bank liable for diverting the district’s funds, in the absence of proof that a levee district collector’s canceled check,' indorsed by the district, for tax money deposited to his credit, was not paid or was wrongfully paid to some one not authorized by the district to receive the money, the bank was not chargeable with the amount thereof.
    Appeal from White Chancery Court; John E. Martineau, Chancellor;
    reversed in part.

      Gulbert L. Pearce, John E. Miller and G. E. Tingling, for appellant.
    That part of the decree awarding the fourth issue of bonds to appellant is supported by the law and the evidence. The burden was on appellee to show that the bank purchased these bonds in good faith and paid value therefor. 82 Conn. 333, 135 Am. St. Bep. 278; 149 Wis. 413, 136 N.. W. 549. The bank had knowledge of the infirmities of the bonds, as the knowledge of Long and Erganbright is imputable to the bank. 7 B. C. L. 658, sec. 659; 77 Ark. 172; 107 Ark. 250; 147 Mass. 268, 9 Am. St. Bep. 698; 118 111. 625. Where a person as an officer of a corporation deals with himself individually, the corporation being represented by no one except the person himself, the corporation will be chargeable with notice of any knowledge possessed by the officer. 22 S. W. 1056; 90 Iowa 554; 121 Mass. 490; 64 Mo. App. 527; 4 S. D. 312; 60 Fed. 78; 97 Ga. 527; 112 Ga. 823; 72 N. Y. 286; 32 Hun. 105; 28 B. I. 41; 20 S. W. 1119; 12 Fed. 686, and many other cases cited by appellant.
    The district was not liable to the bank on the bonds because they were stolen from the district by the bank officials. 95 Me. 553, 55 L. B. A. 730.
    The bank was liable for the misappropriation of the proceeds of the sale of the third issue bonds, which went to the individual credit of Erganbrigffit, under the general rule that if the bank has knowledge that a breach of trust is being committed by the improper withdrawal of funds, it incurs liability. Many of the cases above cited are applicable, but in addition, see 3 B. C. L. p. 550, sec. 177; 136 Ark. 442; 135 Ark. 291; 69 Ark. 43; 18 Tex. 811; 129 Ga. 126; 82 Conn. 8; 211 Mass. 409'; 1914-B Ann. Cas. 677; 1917-F, L. R. A. (N. S.) 300.

      Brundidge & Neelly, for appellee.
    The. knowledge of Erganbright that Long had no authority to sell the bonds is not imputable to the bank. The rule that a corporation is not bound by the knowledge of its officers, where an officer is acting in his own interests, instead of that of the bank, is sustained by the weight of authority. The following cases are in point: 3 R. C. L. pgs. 478-9; 140 Ark. 67; Id. 367; 100 Fed. 705; 191 Fed. 657; 180 Fed. 687; 118 Fed. 800; 147 Mass. 268; 239 Fed. 704; 240 Fed. 114; 178 Fed. 57; 2 Pomeroy’s Eq. Jur. (3d Ed.) par. 675; 190 Fed. 136; 6 A. & E. Ann. Cas. 675; 6 A. L. R. 237, and many others cited by appellee.
    Fraud is not presumed, 'but must be proved, and the burden of proving the bonds were not sold is upon appellant.
   McCulloch, C. J.

The First National Bank of Judsonia, domiciled at the town of Judsonia, in White County, continued to do business until June 3,1920, when it was found to be insolvent, and its affairs were taken over by a receiver appointed by the National Comptroller of the Currency. C. M. Erganbright was the president of the bank, and C. F. Long was its cashier. They were the managing officers of the bank, and, according to the testimony in the present litigation, they exercised complete control over the affairs of the bank, without accounting to any other officers or board. Long resigned as cashier in December, 1919, on account of criticism from a bank examiner, but he continued in joint control with Erganbright over the affairs of the bank.

After the bank failed it was discovered that it had been wrecked by these two parties who controlled it. It was found that they were manipulating the affairs of the bank for their own purposes, and had robbed the bank to the extent of nearly $100,000. The books and accounts of the bank were left in obscurity on account of the manipulation of the various accounts by Erganbright and Long to cover up their unlawful and fraudulent transactions.

Appellant, Little Red River Levee District.No. 2 of White County, is an improvement district organized under the statutes of this State for the purpose of constructing and maintaining a levee along certain stretches of Little Red River. Erganbright and Long and T. J. Pryor were the three directors of the district, and the accounts of the levee district were carried with the bank controlled by the two directors, Erganbright and Long. These parties, it appears from the testimony, dominated the affairs of the levee district as they did those of the bank.

There were four separate bond issues by the levee district. The last issue of $20,000, and the proceeds of the sale of a portion of the third issue are involved in the present litigation.

The transactions which form the subject-matter of this controversy run back to June 30, 1917, and it is conceded that on that date the levee district owed the bank the sum of $10,610.60 on overdrafts. It is also undisputed that subsequent to that date the bank purchased from Erganbright and Long third-issue bonds of the levee district aggregating the sum of $35,000, face value, and that the proceeds thereof — $34,000—were credited to the personal account of Erganbright. It is claimed on the part of the district that $5,000 more of that issue of bonds was purchased in the same way, but there is a controversy on that point.

In August, 1919, it was determined by the directors of the levee district that another bond issue of $20,000 was necessary to make certain repairs on the levee, and the bonds, in denominations of $500 each, were actually printed and signed, but the board then determined not to use the bonds, but to postpone the needed repairs until a more propitious time. Erganbright and Long took the bonds and placed them in the vaults of the bank for safekeeping, and tbe bonds have remained there until the present moment, having passed into the hands of the receiver when he took charge.

It appears that on December 10, 1919, notwithstanding the fact that the bonds were not to be put into -circulation, but were to be safely kept in the vault of the bank, Erganbright and Long credited $18,000 to the levee district as the market value of the bonds, and this entry was made on the books of the bank as a purchase of the bonds by the bank. The proof shows that this was done solely for the purpose of covering up fraudulent transactions of Erganbright and Long and to balance up their accounts as nearly as possible. The funds thus credited were used by Erganbright and Long for purposes, according to the testimony, other than for the use of the levee district. At any rate, according to the preponderance of the evidence, the funds were not expended for the benefit of the district.

This action was instituted by the levee district against the receiver of the bank to cancel the alleged sale and transfer of the bonds to the bank and to recover possession of the bonds, and also to have an accounting with the bank as to the funds of the district received by the bank subsequent to June 30, 1917.

In the complaint it is alleged that the fourth-issue bonds were fraudulently put into circulation by Erganbright and Long, without authority and for their own purposes, and that the bank received the same without consideration and with knowledge of the fraudulent purposes of said parties. It is also alleged in the complaint that the bank purchased $35,000 of the third-issue bonds and wrongfully placed the proceeds of the purchase to the -credit of Erganbright, and that, after allowing credits due the bank, the latter was indebted to the levee district in the sum of $35,000.

The receiver answered denying the charge relied upon by appellant, and alleged that the bank purchased the fourth-issue bonds for a valuable consideration and-was an innocent purchaser thereof, and also alleged that the bank was not indebted to the levee district in any sum, but that the district was indebted to the bank in the sum of $19,367.03.

There was a trial of the issues before the chancery court, and there was a decree in favor of appellant for the cancellation of the sale of the fourth-issue bonds, but the court dismissed appellant’s complaint as to the prayer for the recovery of the proceeds of the former bond issue, and also dismissed the cross-complaint of the receiver against appellant. A cross-appeal has been prosecuted by the receiver.

The facts alleged by appellant with respect to the fraudulent use of the fourth-issue bonds by Erganbright and Long are established by the overwhelming weight of the evidence.

It is undisputed that Erganbright and Long looted the bank and had been engaged in that nefarious enterprise for several years. They had also been controlling the affairs of the levee district and using its funds for their own purposes for several years. They both fled the country the night before the bank went into the hands of a receiver, and Long has never returned or been heard of since that date. Erganbright returned and was indicted in the United States District Court and is now serving a term in the Federal prison. He testified as a witness in this ease, and made no attempt to explain or excuse his wrong-doings. He admitted that he and Long had no authority to use these bonds, and he denied having used them in any way, and claimed that they still remained in. the vault of the bank merely for safe-keeping. The testimony shows, however, that the price of the bonds was credited to the levee district on December 10, 1919¡, and there was a deposit slip for the amount in Erganbright’s own handwriting. It is shown also that he signed the report of the bank examiner to the Comptroller of the Currency specifying these bonds as part of the assets of the bank.

The testimony of Erganbright is, of course, unreliable, but it merely corroborates the testimony of other reliable witnesses, particularly Mr. Pryor, the other director, to the effect that there was no authority Whatever for the circulation of the bonds. Erganbright and Long acted solely for the bank and also assumed to act solely for the levee district, and simply used these bonds for their own fraudulent and unlawful purposes.

Under these circumstances, we are of the opinion that the bank was not an innocent purchaser, and that the chancery court properly canceled the purported sale of the bonds and decreed their return to the levee district. While the proceeds were credited on the bank’s books, under the direction of Erganbright and Long, to the levee district, those funds were not, according to the evidence, used for the benefit of the levee district, because there were no repairs made thereafter and no further expenditures of funds.

The bank and the receiver, as its representative, are in no situation to claim immunity from the charere of knowledge of Erganbright’s and Long’s fraudulent conduct in attempting to sell the bonds. A corporation must necessarily act through agents, and the universal rule is that knowledge of an agent is ordinarily to be imputed to the principal; but there is an exception to that rule, that such knowledge of the agent will not be imputed to the principal where the agent acts for himself or has a personal interest in the transaction, thus rendering it improbable that he will report his knowledge to his principal. Bank of Hartford v. McDonald, 107 Ark. 232. This exception to the general rule has been, in many intances, extended to oases where an officer of a corporation acts for another corporation. Under these circumstances, the officer is treated as having a personal interest in the transaction, and his knowledge is not to be imputed to the corporation which he serves.

This exception, however, to the rule does not extend to instances where-an officer, of a corporation acts as its sole representative or agent in the transaction under review. The reason for the exception fails where the officer of the corporation is its sole representative, and especially where, as in the present casé, the officer is the corporation itself, without accountability to any superior. It would be entirely beyond reason or justice to hold that a person acting as the agent of both parties could wrongfully transfer property of one of his principals to the other. The facts of the present case illustrate the injustice of such a rule, for Erganbright and Long, without any actual authority, have simply attempted to transfer the property of the levee district — $20,000 of the fourth-issue bonds — to the bank.

The facts do not present a case for the determination which of two innocent parties must suffer where one has made it possible for injury to be imposed, inasmuch as Erganbright and Long acted for both-of the parties in the transaction and merely took the property of one and appropriated it to the use of the other.

The authorities on the questions here involved are numerous, but are not altogether in harmony as to the circumstances under which knowledge of an agent of a corporation will be imputed to it, but the principle here announced has been recognized by this court in the case of Skillern v. Arkansas Woolen Mills, 77 Ark. 172. The following authorities are also found to sustain this view: 7 R. C. L. 658; Note to Lilly v. Hamilton Bank (U. S. Cir. Ct. Ap.) 29 L. R. A. (N. S.) 558; note to First Natl. Bank v. Burns (Ohio St.) 49 L. R. A. (N. S.) 764; Loring v. Brodie, 134 Mass. 453; Atlantic Cotton Mills v. Indian Orchard Mills, 147 Mass. 268; Brobston v. Penniman, 97 Ga. 527; Anderson v. Kinley, 90 Iowa 554.

Counsel for appellee rely upon the decision of this court in Greer v. Levee District, 140 Ark. 60, but in that case the officers dealing with the bank were not the sole representatives of their principals in the transaction. That, in other words, was a case where the exception to the rule against imputing knowledge of the agent to his principal was clearly applicable.

The decree is therefore correct as to the cancellation. and return of the bonds, and same -will be affirmed.

The other issues in the case merely come down to questions of fact, as there is little, if any, dispute as to the law applicable thereto.

The bank purchased third-issue bonds from Erganbright and Long and credited the proceeds to Erganbright’s account. This, of itself, was sufficient to charge the bank, even if Erganbright and Long had not been its only representatives in the transaction, with knowledge of the want of authority on their part to sell the bonds for their own benefit. The authority to sell the bonds is not disputed, but to sell them for the personal benefit of the directors was quite another thing, and there was no apparent authority for Erganbright and Long to sell the bonds and appropriate the funds to their own use. .

An audit of the books was made by an accountant for the district, and the receiver also made an audit. These accounts are necessarily voluminous, and, to some extent, difficult to fully comprehend. They start, however, with an undisputed balance due the bank by the district, as an overdraft, on June 30,1917, and the undisputed fact that the bank purchased the bonds and paid the proceeds to Erganbright, for his own use, amounting to $34,000. This put the burden on the receiver to show that the proceeds of this sale were expended by Erganbright for the benefit of the district. We fail to find sufficient proof in the record to account for these funds as having been used for the benefit of the district, and therefore the bank should be charged with this amount.

It is further shown that the bank received to the credit of the district, after June 30, 1917, taxes collected from the property owners, aggregating the sum of $17,-004.85, thus making an aggregate of $51,004.85 to be debited against the bank. Against this, the overdraft of $10,610.60 should be credited, and also the sum of $30,-877.21, shown to have been expended for the use of the district.

After crediting to the bank the aggregate amount of $41,487.81, it leaves a balance of $9,517.04 chargeable against the bank.

It is contended on behalf of appellant that the bank should be charged the further sum of $4,307.50, the proceeds from the additional sale of $5,000 of the third-issue bonds. This batch of bonds was sold by Erganbright to Mr. Orthwein of St. Louis, for the sum of $4,307.50, but it is not shown by the proof that these bonds went into the hands of the bank. It devolved upon appellant to show by a preponderance of the testimony that the bank received these funds. Erganbright and Long were at the time guilty of all sorts of defalcations and misappropriation of funds, and it is easy to believe that they placed these funds, in the bank, but in the absence of affirmative proof we cannot assume that they did so. So the chancellor was correct in refusing to allow that item.

There is also an item of $8,496 tax paoney received by S. T. Hughes, collector of the levee district, and which, it is claimed, was paid over to the bank. The only proof on this subject is that Mr. Hughes deposited his collections of taxes made by him in the bank to his own credit as collector, and that he drew a check on this fund in. favor of the levee district. He exhibited with his testimony a canceled check showing the indorsement of the levee district, but it is nowhere shown in the proof who actually received these funds. The . canceled check was evidently returned to Hughes by the bank — at least that is the inference, but he does not say so in his own testimony — but the check was properly indorsed, and in order to recover this sum it devolved upon appellant to show that this check was not, in fact, paid, or that it was wrongfully paid to Erganbright or some one else not authorized by the levee district to receive the money.

On this branch of the case the decree is reversed, and a decree will be renderd here in favor of appellant for the sum of $9,517.04, with costs of appeal.

It is so ordered.

McCulloch, C. J.,

(on rehearing). A petition for rehearing has been presented by each party; appellants, on the ground that this court erred in not allowing, as a claim against the bank, the additional item of $4,307.50, net price- of the bonds sold to Orthwein, and $8,496, tax money alleged to have been paid into the bank by Hughes, appellant’s tax collector; and appellee, on the ground that an item of $4,893.03 included in the charges against the bank subsequent to June 30,1917, is improper, for the reason that it is included in the balance, or overdraft, shown on that date, and that the evidence clearly shows that the overdraft of appellant on the date mentioned above was $12,636.73, instead of $10,610.60, the sum on which our former judgment was based.

We are convinced, on re-examination of the accounts and other evidence in the record, that our original conclusion with respect to the additional items contended for by appellant was correct, and appellant’s petition for rehearing is therefore overruled.

We are equally convinced that we erred in charging appellee with the item of $4,893.03 for tax money received after June 30, 1917, and also in regard to the amount of the overdraft. Counsel for appellee has clearly shown the errors in these respects, 'and there should be a correction of our former judgment.

Increasing the overdraft to $12,636.73, as appellee is entitled to, and eliminating the additional charge of $4,893.03 for tax money received, the judgment against appellee should be for $2,597.88, instead of $9,517.04, as renderéd on the original hearing.

The rehearing asked for by appellee is therefore granted, and the reduction indicated above is ordered.


author: Hart, J.

text:
    Dunham v. Phillips.
    Opinion delivered May 29, 1922.
    1. Appeal and error — failure of cross-appellant to file brief.— Failure of an appellee to file a brief in support of his- cross-appeal will be deemed an abandonment thereof.
    2. Vendor and purchaser — rescission—accounting of rents.— Where a contract for the sale of a farm was rescinded several "months after the date of the sale, the purchaser must not only restore the land but he must also account for the rents and profits therefrom,
    3. Appeal and error — conclusiveness of chancellor’s finding.— A chancellor’s finding of facts, not against the preponderance of the evidence, will not be set aside on appeal.
    Appeal from Washington Chancery Court; Ben F. McMahan, Chancellor;
    affirmed.
    STATEMENT OE EAOTS.
    Appellant brought this suit in equity against appellees for the rescission of a contract for the sale of forty acres of land in Washington County, Ark.
    Appellee, A. J. Phillips, filed an answer in which he stated that he was willing for the contract for the sale of the land to be rescinded, but asked judgment against appellant for the rents and profits which he had received from the land.
    Appellant D. J. Dunham was a witness for himself. According to his testimony taken at the trial in August, 1921, he was nearly eighty years of age. He had been living in Arkansas for about two years. Prior to that time he had lived in Oklahoma. A. J. Phillips and J. O. Phillips are brothers living in Washington County, Ark. J. O. Phillips and appellant made a contract with A. J. Phillips for the purchase of forty acres' of land in question, which was set in an apple and a peach orchard, for the price of $13,000. A. J. Phillips and J. O. Phillips both told Dunham that the land was worth more than $13,000, and he relied on their representations because he had not been in Arkansas long enough to know the value of the land. The contract was made on the 8th day of June, 1920. A. J. Phillips represented that he owned the land and had a good title thereto, but there were certain defects in the title which it was necessary to remove. He said that he could perfect the title by the 15th of September, 1920. A. J. Phillips executed a deed to the land and placed it in the First National Bank of Springdale in escrow to be delivered to the grantee when the purchase price was paid and the title was cleared. Dunham deposited in the bank $7,000 in cash and his note for $6,000. These amounts were to be turned over to A. J. Phillips when the title to the land was perfected. By the terms of the contract D. J. Dunham and J. O. Phillips are each to have an undivided one-half interest in the land.
    J. O. Phillips took possession of the land. Dunham and J. O. Phillips.were also interested in two other peach orchards. J. O. Phillips paid Dunham $2,200 for his share of the entire peach orchard deal. Dunham does not think that any part of this was from the land in question.
    The children of A. J. Phillips had an interest in the land, and Dunham claimed a rescission of the contract on the ground that A. J. Phillips did not have a good title to the land. J. O. Phillips had possession of the land, and Dunham had nothing whatever to do with gathering' the peach crop. A. J. Phillips paid $1,000 of the $7,000 deposited by Dunham in the bank to J. O. Phillips for- his commission in making the sale of the land. Dunham did not know that J. O. Phillips was to receive any commission for the sale of the land.
    A. J. Phillips was a witness for himself. He helped gather the peaches on the place after he had made a sale of the land to his brother, J. O. Phillips, and to D. J. Dunham. He was employed by his brother for that purpose. There were 825 bushels of peaches produced on said land in 1920, and they were worth $4 per bushel in Springdale, near which town the land was situated. No accounting was made to A. J. Phillips by J. O. Phillips or D, J, Dunham of the peaches and apples grown on the land for the year 1920 and harvested after the sale of the land to them.
    The above is substantially all the testimony necessary to decide the issues raised by the appeal.
    The- chancellor was of the opinion that D. J. Dunham should recover from A. J. Phillips the $1,000 of the purchase price of the land which A. J. Phillips had paid to his brother, J. O. Phillips, as a commission for selling the land.
    The court further found that the peach crop for the year 1920 was of the net value of $3,300, and that D. J. Dunham and J. O. Phillips harvested said peach crop after they became tenants in common of the land, and that each should account to A. J. Phillips for the sum of $1,650, being one-half of the whole amount received by them for the peach crop.
    The court further found that D. J. Dnham was entitled to a rescission of the contract for the purchase of the land from A. J. Phillips on June 8, 1920. The court, was of the opinion that the judgment of $1000 in favor of D. J. Dunham against A. J. Phillips and J. O. Phillips should be applied as a setoff against the judgment of A. J. Phillips against D. J. Dunham for the sum of $1,650 and that the balance, which is $650, should be declared a lien upon the $6,000 held in escrow by said First National Bank. Said bank was directed to deliver the deed held by it in escrow to A. J. Phillips and to deliver the balance of the $6,000, after deducting the $650, to D. J. Dunham. The bank was ordered to cancel the $6,000 note held by it in escrow and surrender the same to D. J. Dunham.
    A decree was entered accordingly, and to reverse that decree an appeal was taken by D. J. Dunham from that part of the decree which affected his interest adversely, and an appeal was taken by A. J. Phillips from that part of the decree which affected him adversely.

      John W. Grabiel, for appellant.
    J. O. Phillips, being one of the wrongdoers, is not entitled to relief. 6 R. C. L. 932, par. 316.

      There was a failure to show any damage to the orchard or apple crop by want of spraying and cultivating. 67 Ark. 371; 97 Ark. 54; 57 Ark. 512; 71 Ark. 302.
    The relation of tenants in common is not that of partners, unless by agreement. 158 Pa. St. 197; 38 A. S. R. 838. One tenant in common cannot bind the other or the estate by an unauthorized act. 38 Cyc. 101. They do not sustain the relation of principal and agent, and are not partners. 91 Ark. 133.
    There is no relation of landlord and tenant between A. J. Phillips and the joint purchasers. 27 R. C. L. 654, sec. 416; 148 IT. S. 345.
    The legal unity of possession is the only unity ‘among tenants in common; such tenants hold by several and distinct titles. 230 S. W. 579. One tenant cannot bind his cotenant by his unauthorized contracts or torts. 91 Ark. 133.
    The relation of cotenancy between owners of property gives rise to no power on the part of one to render his cotenant liable to himself or bind third persons by any expenditures he may make or contracts he may enter into. 7 R. C. L. 874; 138 Ala. 399; 89 Me. 103; 159 Pa. St. 10; Note 91 A. S. R. 880.
    Appellant was entitled to rescind the contract, because appellee was at all times in default. 8 How. 134; 197 Fed. 788; 166 Mass. 139; 92 U. S. 104.
   Hart, J.

(after stating- the facts). In the first place it may be said that A. J. Phillips has not filed a brief in the case, and under the settled rules of practice in this court he will be deemed to have abandoned his appeal. This leaves but a single issue raised by the appeal of D. J. Dunham, and that is the question of whether or not A. J. Phillips was entitled to recover the rents and profits after the contract for the sale of the land was rescinded.

It will be remembered that D. J. Dunham brought this suit for the purpose of having the contract for the sale of the land rescinded, and that A. J. Phillips in his answer stated that he was willing to have the contract rescinded but asked for judgment for the rents and profits of the land after the date of the sale.

The court rendered judgment in favor of A. J. Phillips against D. J. Dunham for the sum of $1,650, which was found to be one-half of the value of the peach crop which Dunham and J. O. Phillips took from the land after the sale to them.

The court correctly held that A. J. Phillips was entitled to recover the rents and profits from the land. Dunham and J. O. Phillips took possession of the land under their contract of purchase, and if Dunham wished to rescind the contract he must restore the land and account for the rents and profits. Davis v. Tarwater, 15 Ark. 286, and Griffith v. Maxfield, 63 Ark. 548.

We are also of the opinion that the finding of the amount of rents by the chancery court is not against the preponderance of the evidence. According to appellant’s own testimony, he was interested in three different peach orchards with J. O. Phillips and received $2,200' as his share in the whole venture. While he does not think that any of this came from the A. J. Phillips orchard, he is not sure of it. At any rate, he admits that J. O. Phillips had the entire charge of gathering the peach crop and that he had nothing to do with it.

On the other hand, A. J. Phillips testified positively that he was employed to help gather the peaches and that 825 bushels were gathered which were worth $4 per bushel.

Under the settled rules of this court a finding o‘f fact made by the chancellor will not be disturbed on appeal unless it is against the preponderance of the evidence.

Therefore the decree will be affirmed.