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

text:
    Sims v. Weldon.
    Opinion delivered June 16, 1924.
    1. Statutes — business transacted during extra session. — Const., art. 6, § 19, declaring what business may be transacted during an extra session of the Legislature, is mandatory, and a statute enacted at such a session not in conformity to the constitutional provision is void.
    2. Constitutional law — validity of statute — judicial question. —Whether a statute enacted at an extra session of the Legislature is within the purpose specified by the Governor, as required by Const., art. 6, § 19, is a judicial question.

      8. Statutes — validity of act of extra session. — Legislators convened in extraordinary session may act freely within the Governor’s call and legislate on any or all of the subjects specified, or any part thereof, and every presumption will be made in favor of the regularity of their action, but when it appears that the statute does not fall within the purposes specified it is the court’s duty to declare it void.
    4. Statutes — special session — governor’s call. — Const., art. 6, § 19, requiring the Governor, in calling a special session of the Legislature, to specify the purpose for which they are convened, requires the Governor to confine legislation to particular subjects, but not to restrict the details springing out of such subjects.
    5. Statutes — extra session of legislature — scope of governor’s call. — Under the Governor’s proclamation calling the Legislature in special session to enact laws imposing “a tax on net incomes,” a law imposing a tax on cigars and cigarettes was not authorized.
    6. Statutes — act of extra session — validity.—Where the Governor’s proclamation called a special session of the Legislature to enact a tax on net incomes, an act passed at such session imposing a tax on cigars and cigarettes will not be upheld, though the purpose of the Governor and of the act passed was to raise funds for school purposes.
    7. Evidence — governor’s supplemental proclamation.' — The court takes judicial notice of a supplemental call by the Governor during the extra session of the Legislature, specifying additional subjects of legislation.
    8. Statutes — supplemental proclamation of governor. — After an extra session of the Legislature has convened, pursuant to the Governor’s call, he cannot issue a supplemental proclamation specifying additional subjects of legislation.
    9. Evidence — judicial notice of legislative records. — The court takes judicial notice of the contents of the records of the Legislature, and hence knows that the Legislature did not extend the extra session of 1924 to take up other legislation than that specified in the Governor’s proclamation.
    10. Statutes — extension op special session. — Mere enactment of a bill at a special session of the Legislature, not within the scope of the Governor’s call, is not tantamount to an extension of the session for the purpose of passing such act, even though it was passed by a two-thirds vote in both houses.
    Appeal from Pulaski Chancery Court; John E. Mar-tine.au, Chancellor;
    affirmed.

      J. S. Utley Attorney General, John L. Carter, Wm. T. Hammock, Barden Moose, and J. 8. Abercrombie, Assistants, for appellant.
    The Legislature is primarily the judge as to whether or not an act falls within the scope of an executive proclamation. 147 Ark. 453. It is true that in this case the Governor designated the enactment of an income tax law; but the method of providing the needed, revenue was a question of legislative policy peculiarly within the sphere and jurisdiction of the General Assembly. The detail of providing such revenue relates back to the emergency which made the extraordinary session necessary, viz: the extreme financial needs of the public schools of the State; and, though the bill enacted may not be in the form prescribed, yet, if it meets the emergency which prompted the call, it is within the proclamation — especially when approved by the Governor as responsive to his call. 154 Ark.- 295-6. On the question of the power of the Legislature in special session, see 154 Ark. 551, at page 559. In passing upon the contention raised by. appellee that the Governor’s proclamation does not bring itself within the requirements of art. 6, § 19, of the Constitution, because not broad enough to amount to stating the subject-matter upon which the lawmakers could act, and because the act in question was not specified in the proclamation, we think the court is justified in taking into consideration the public notoriety of the emergency, the extreme financial distress of the public schools, which made the’calling of the Legislature into extraordinary session necessary. Taking the history of the call into consideration, the Governor’s proclamation was broad enough to justify construing it as stating the subject of legislation to be for school revenue, and as authorizing the Legislature to pass the bill in question. The same principle employed in interpreting a provision of the Constitution ought to be employed in interpreting the meaning of a proclamation by the Governor in calling an extra session. 105 Ark. 380; 85 Ark. 89.

      Gochrill <& Armistead, for appellee.
    The act is not within the purview of the Governor’s proclamation, and is therefore void. It is the mandatory duty of the court to go behind the act to' the proclamation in order ’to determine whether the act is within the purview of the proclamation. 154 Ark. 288. A reading of the act and of the specifications contained in the Governor’s proclamation, together with the opinion of the court in 154 Ark. '288, just cited, sustain the decree- of the chancery court without further argument; but the question raised by this appeal involves more than whether this particular act shall stand. It brings into issue a vital principle of constitutional law. The evils of numerous special sessions of the Legislature are great enough, even with art. 6, § 19, of the Constitution relating to extraordinary sessions enforced and applied. The thought embodied in the Constitution as expressed in art. 5, §§ 5 and 16, and by Amendment No. 8, is that once in two years is sufficient for the meetings of the General Assembly authorized to pass general measures without limitations, and in order to guard against excess legislation the terms of the general sessions are limited; but, realizing that emergencies might arise requiring legislation between the general sessions, this § 19 of article 6 was brought in. The object and purpose of the limitation upon the power of the General Assembly, assembled upon the call of the Governor upon extraordinary occasions, is to check excess legislation, and to render laws a little more stable by furnishing a period of two years, during’ which they may be to some degree subjected to the test of a brief experiment. 115 Pac. (Colo.) 696-698; 161S. W. (Tenn.) 1006; 207 Pac. (Ariz.) 611, 613. The validity of an act passed at a called session depends therefore upon whether its subject-matter is within the purview of the specifications contained in the proclamation; if not, it is void. An excise tax on cigarettes and cigars does not come within the purview of a call for the passage of a net income law. In 154 Ark. 288, supra, it was held that the approval of the act by the Governor did not supply the lack of authorization for its enactment in the proclamation. That proposition is also supported by the following cases: 19 S. W. (Mo.) 530; 34 S. W. (Tex.) 769; 2 Heisk. (Tenn.) 759; 90 Mo. 646; 107 S. E. (Ga.) 765; 77 111. 127; 110 Mo. 286; 127 S. W. 208. An excise tax or a license tax upon those engaged in particular occupations, though graded in accordance with income, is a tax on the occupations, and is not an income tax. 26 R. C. L., ‘ ‘ Taxation, ’ ’ § 116; 23 Grat. (Va.) 464; 28 L. R. A. 110; 82 S. E. (Va.) 695; Black on Income Taxes, § 3; 47 N. W. (Neb.) 280; 93 S. W. (Tex.) 436, 453.

      Rowell & Alexander filed a brief on behalf of appellee, as amici curiae.

   McCulloch, C. J.

Appellee is engaged in the business of retailing cigarettes and cigars in the city of Little Rock, and he instituted this action attacking the validity of the statute passed at the recent extraordinary session of the General Assembly attempting to levy a tax on the sale of cigarettes and cigars — two dollars per thousand on cigarettes and ten per centum on the price of cigars sold in the State by retail dealers. The ground on which the validity of the statute is assailed is that the constitutional requirements were not complied with. No attack is made upon the form, or substance of the statute itself or upon the authority of the Legislature to pass such a statute under circumstances which would meet the requirements of the Constitution.

The first question raised is whether or not the statute falls within the purposes specified by the Governor in his proclamation calling the extraordinary session. The Constitution of 1874 contains the following provision with respect to extraordinary sessions of the General Assembly:

“The Governor may, by proclamation, on extraordinary occasions convene the General Assembly at the seat of government, or at a different place, if that shall have become, since their last adjournment, dangerous from an enemy or contagious disease; and he shall specify in his proclamation the purpose for which they are convened, and no other business than that set forth therein shall be transacted until the same shall have been disposed of, after which they may, by a vote of two-thirds of all the members elected to both houses, entered upon their journals, remain in session not exceeding fifteen days.” Article 6, % 19.

The amendment adopted in the year 1913 (Amendment No. 8) makes no change in the section quoted above which has any bearing on the present controversy. The only change related to compensation of members of the Legislature, and provided that, when convened in extraordinary session, they shall receive three dollars per day for their services the first fifteen days, and that, if the session shall extend beyond fifteen days, they shall receive no further per diem.

The proclamation of the Governor was made on March 8, 1924, calling the session to begin on March 24, 1924, and reads as follows:

“State of Arkansas, Executive Department.

“Proclamation.

“To all to whom these presents shall come — Greetings:

“Know ye that, whereas, by virtue of power and authority vested in me by § 19 of article 6 of the Constitution of the said 'State, I do, by these presents, call a special session of the General Assembly of the said State to meet and convene at Little Pock, the seat of government, in the State Capitol, at the hour of twelve o’clock noon, on the 24th day of March, 1924, and I specify the purposes for which the General Assembly is convened to be as follows, to-wit:

i£l. To enact a law imposing a tax on net incomes for the calendar year 1924, and each year thereafter, of individuals and corporations resident in this State or having a business or agency herein.

££2.. To take such action as is deemed proper in regards the collection of the tax imposed by act 345 of 1923, the gross income tax law.

££3. To amend the severance tax act 118 of 1923 with reference to the tax on bauxite.

££4. To make all appropriations necessary for the expenses of this session and to carry out the purposes and provisions of any laws enacted thereat.”

Our decision in the case of Jones v. State, 154 Ark. 288, is of much force in the present controversy, and is conclusive of .some of the questions raised. In the first place, it- was decided there that the constitutional provision now under consideration is mandatory, and that a statute enacted at an extraordinary session, not in conformity with the requirements of this provision, is void. It was also decided that the question whether or not a statute enacted at an extraordinary session falls within the purposes specified by the Governor is a judicial one, to be determined by the court ascertaining the validity or invalidity of the statute. Authorities supporting that view of the law were cited in the opinion. The rule announced in that case is that the lawmakers, when convened in extraordinary session, ££may act freely within the call; may legislate upon all or any of the subjects specified, or upon any.part of a subject; and every presumption will be made in favor of the regularity of its action,” but that, when it appears to the court that the statute does not fall within the purposes specified, it is the duty of the court to declare the statute invalid. The statute' under consideration in that case was declared invalid for the reason that it was not within the proclamation of the Governor. We feel constrained to add our approval to the statement of the law made in the dissenting opinion in that case, that the provision of the Constitution in question merely requires the Governor “to confine legislation to particular subjects, and not to restrict the details springing out of the subjects enumerated in the call.” In other words, the Governor must determine whether or not an emergency exists for calling a session of the Legislature, and then must specify the purposes of the legislation thought to be necessary to relieve the emergency, and such legislation must be confined to the general purposes specified in the proclamation. Much latitude is allowed for the specification by the Governor in his proclamation, but the purposes of legislation must be definitely specified, either broadly or in detail. That responsibility cannot be avoided by the executive, for the Legislature cannot be called together without a specification of the purposes of legislation to be considered.

Now, in the proclamation before us for consideration, the Governor merely specified the enactment of “a law imposing a tax on net incomes.” It is thus seen that the scope of the legislation is the enactment of “a law imposing a tax on net incomes,” and the passage of a law of a wholly different character does not fall within that specification. It is too obvious for controversy that .an excise tax on the sales of merchandise of any kind is not “a tax on net incomes.” Such a law has none of the elements of an income tax, and, on the contrary, the mere statement of the two characters of statutes shows their dissimilarity. A sales tax is the antithesis of an income tax, for the former may be, and generally is, added to the price and thus passed on to the purchaser, whilst the latter must be paid by the one who earns the income, and it cannot be passed on to another. If it were merely stated in the call, as one of the purposes of the session, that a law should be passed raising additional revenue for a given purpose, then the Legislature could adopt its own method in prescribing by statute the kind of tax to be adopted. But, in the present case, there is no designation of the ultimate purpose for which the tax is to be levied, and the sole guide in determining the purpose of the legislation is that it shall'be an income tax— there are no other words of definition found in the call. Therefore we are concluded, we think, in determining the validity of the statute, by the fact that the Governor called the session for the purpose of passing an income tax law, and that this law does not fall within that class.

It is contended, however, that, while the proclamation does not mention the purposes to which the revenue to be raised must be devoted, we can look to the “history of the times” to ascertain that the purpose was to raise additional revenue for school purposes; that certain public acts and declarations made iby the Governor, in public addresses and newspaper interviews, mass meetings held, and the appointment of committees, show that there was a great public campaign made for the purpose of raising money for educational purposes, and that vie can take notice of the fact that this movement prompted the Governor to call the extraordinary session of the Legislature, and that, when we thus view the situation, we should determine that the ultimate purpose -of the tax was that it was to be used for school purposes. The Governor specified, presumably, all that was in his mind at the time he issued the proclamation, and we are not at liberty to go back of that call to determine what the purpose of the taxation was intended for. The call was to pass an income tax law, and the passage of such a law, regardless of the appropriation made of the revenues thus raised, would have been within the call, but any other kind of tax, regardless of the appropriation to any given use, was not within the call. The mental attitude of the Governor as to his intention, not expressed in the proclamation, does not supply the specifications required by the Constitution.

It is also argued that the fact that the Governor, in two other sections of the proclamation, referred to other statutes which we judicially know were -statutes raising revenue for school purposes, is sufficient to -constitute the proclamation a designation of the raising of revenue for school purposes to be the design of the call. We cannot agree to that view, for the second section of the Governor’s call merely designated legislation “in regards the collection of the tax imposed by act 345 of 1923, the gross income tax law;” and the third section merely related to an amendment to the severance tax. law with reference to the tax on bauxite. These are references to particular statutes which relate to the raising of revenue for school purposes, and the only effect of these two spécifications is to authorize the amendment or repeal of the gross income tax law, and the amendment of the law taxing bauxite. Neither of these sections call for the enactment of a sales tax for school purposes or for any other purpose. Our conclusion is therefore that the statute under consideration does not come within the specifications of-the Governor’s call.

Counsel for the State, in defending the validity of the statute, do not rely on any other ground except that the statute comes within the specifications of the Governor’s call, but there are other questions which necessarily raise themselves and call for a decision in determining whether or not this statute was legally enacted.

It appears from the record in this case that the Governor issued a supplemental call — and we take notice of it, even without it being in the record — during the extraordinary session, and that this supplemental call specified the passage of “a kind of a revenue law” for school purposes. The bill for the enactment of this statute was introduced'in the Senate on March 28, 1924, and finally passed the Senate on March 31, and was then sent to the House of Representatives. It was read the first time in the House on April 2, and was read the third time and passed on April 3. The proclamation of the Governor was made on April '2, after the bill had passed the Senate and was pending in the House. We deem it unnecessary to discuss the question whether or not the passage of the bill in the Senate, prior to the supplemental call authorizing the passage of such a bill, would render it invalid, for we are of the opinion that the Governor had no authority at that time to issue such a proclamation. The only authority of the Governor found in the language of the Constitution i,s that he may, by proclamation, “convene the General Assembly,” and that “he shall specify in his proclamation the purpose for which they are convened.” This is the scope and extent of his power, and he has no further control over legislation except to approve or disapprove the bills finally passed by both houses.

The question whether the Governor may, before the meeting of the session, amend his call, is not presented in the present controversy, and we expressly refrain from passing upon that question, but we do hold that, after the session has begun, pursuant to the call of the executive, the power of the executive over that particular session has been exhausted. He may call another session, but he has no authority to interfere with the proceedings of the session then progressing by directing the further course of legislation. When the session begins, the lawmakers themselves are, under the Constitution, in complete control of the situation, subject, of course, to the prescribed restrictions that “no other business than that set forth therein shall be transacted until the same shall have been disposed of, after which they may, by a vote of two-thirds of all the members elected to both houses, entered upon their journals, remain in session not exceeding fifteen days.” The Legislature in extraordinary session determines for itself the extent to which it will enact legislation specified in the call, and, when that is determined, the Legislature may extend the session and take up other legislation.

Under the Constitution there is no other way for the General Assembly to consider and transact business outside of' the specifications of the Governor’s call, except by providing by a two-thirds vote for an extension of the session after the completion of the business specified in the proclamation. In the Constitutions of Mississippi, Missouri, Montana, Oklahoma, Nevada and Utah, and perhaps in some of the other States of the Union, there is an express provision authorizing the Governor, during an extraordinary session, to specify, from time to time, additional matters to be considered, and in those States, of course, it is the practice to exercise that authority, and legislation enacted pursuant to it has been upheld. But it will be noted that our Constitution contains no such provision; on the contrary, it limits the authority, as we have already seen, to a proclamation convening’ the session and specifying the purposes for which the session is convened. If the Governor could, by repeated or supplemental specifications during the session, prolong it indefinitely, he could thereby deprive the Legislature of its constitutional power of remaining in session for general legislation. It seems clear to us that it was not the intention of the framers of the Constitution to confer'any such power on the Governor. The language used does not justify it, but, on the contrary, it is against any such view. The Constitution prescribes an orderly method for calling into existence an extraordinary session, distributing the powers between the Governor and the Legislature, and neither can encroach upon the powers of the other.

The further question arises whether we should indulge the presumption that the Legislature extended the session for the purpose of taking up other legislation, or that the passage of this bill was tantamount to an extension of the session for that purpose. The first answer to this suggestion is that we take judicial notice of the contents of the records of the General Assembly, and we know that there was no formal extension of the session, therefore no presumption can be indulged in that respect. The enactment of this bill cannot be treated as tantamount to an extension of the session for the purpose of its enactment. This is, so for more than one reason. The Constitution requires that an extension must be “by a vote of two-thirds of all members elected to both houses, entered upon their journals.” This bill received two-thirds of the vote in the House, but did not receive two-thirds of the vote in the Senate. Moreover, it is clear to us that the mere enactment of a bill not within the call, even by a two-thirds vote, is not tantamount to an extension of the session for the purpose of passing the bill. The language of the Constitution is clear and unmistakable. It means that, when the business within the call is completed,'then there may be an extension of the.session, otherwise the session comes to an end by operation of the force of the constitutional provision. The Legislature must, of course, determine for itself when it has concluded the consideration of business mentioned in the call. It may do so by either passing or rejecting the bills providing for legislation within the call, or it may determine, by formal resolution, that it has completed its consideration of the business embraced in the call, and then determine whether or not there shall be an extension of the session for other business, and this must be done by a two-thirds vote. Ir. this instance there is nothing on the journal of the House to show that, after the completion of the business in the call, there was an extension of the session.

In the Jones case, supra, we said:

“Inasmuch as the session of the General Assembly was not extended by the vote of two houses after the completion of the business embraced in the Governor’s call, the.act under review must fall as having been passed without constitutional authority, unless authorization for its enactment is found in the Governor’s proclamation.”

The Constitution was intended to mark a clear and definite line between the business embraced in the call and the consideration of other business. There is a positive command that no other business shall be taken up until that has been disposed of, and then there may be an extension of the session, if, by a vote of two-thirds of all the members elected to both houses, and entered on the journals, such an extension shall be decided upon. In no other way can the Legislature take up further legislation.

Our conclusion therefore is that, in no view of ihe matter, has this piece of legislation been legally enacted, and the chancery court was correct in so deciding.

The decree is affirmed.

DISSENTING OPINION.

Hart, J.

In Jones v. State, 154 Ark. 288, it was held that a constitutional provision that an extra session of the Legislature shall have no power to act upon subjects other than those specially designated in the proclamation by which the session is called is mandatory, and that a statute passed at such 'session upon a subject not thus specially designated is unconstitutional.

Judge Humphreys and myself have no quarrel with the declarations of law laid down in this opinion, but we believe that a review of the cases cited by the text-' writers quoted from in that opinion shows that the court has narrowed the rule there announced in applying it to the -facts in the -case at bar. In that case this court was construing art. 6, § 19, of the Constitution, which provides that the Governor may, by proclamation, call a special -session of the General Assembly, and -that he shall specify in his proclamation the purpose for which they are convened, and that no business other than that set forth therein shall be transacted until the same shall have been disposed of. In construing the section the court held that judicial notice will be taken of legislative records.

It is also -a cardinal principle of constitutional construction that the Constitution must be considered as a whole, and, to get at the meaning -of any part of it, we must read it in the light of other provisions relating to the same subject. Little Rock v. North Little Rock, 72 Ark. 195.

Article 6, § 8, provides that the Governor shall give to the General Assembly from time to time information by mes-sag-e 'concerning the condition and government of the State, and recommend for their -consideration such measures as he may deem expedient. This section of the Constitution makes the Governor’s message a public document, and it becomes part of the journals of the Legislature. It is as much a part of the legislative records as the Governor’s proclamation calling the Legislature in extra session.

This court has expressly held that the proclamation of the Governor calling an extraordinary session of the General Assembly is a record of which the courts take judicial notice. Booe v. Road Improvement Dist. No. 4 of Prairie County, 141 Ark. 140, and Jones v. State, 154 Ark. 278.

Other courts have held, under a constitutional provision confining such legislation to business specially named in the proclamation, that the message may be looked to to determine the construction put by the Governor on the scope of the proclamation. Parsons v. People (Col.), 76 Pac. 666, and cases cited, and State v. Rawlings, 232 Mo. 544, 134 S. W. 530.

The substance of the Governor’s proclamation in the case at bar is as follows:

“1. To enact a law imposing a tax on net incomes for the calendar year 1924, and each year thereafter, of individuals and corporations resident in this State or having a business or agency therein.

“2. To take such action as is deemed proper in regard to collection of the tax imposed by act 345 of 1923, the gross income tax law.

“3. To amend the severance, tax act 118 of 1923, with reference to the tax on bauxite.

“4. To make all appropriations necessary for the expenses of this session and to carry out the purposes and provisions of any laws enacted thereat. ’ ’

In this connection we copy from the Governor’s special message which was delivered upon the convening of the Legislature in special session. The first sentence is as follows:

“The financial distress of the public schools of the State has impelled me to convene you for the purpose of considering and passing laws for relief.”

We copy other portions of his message as follows:

“The people have voted all the tax they could. The directors, desiring to keep the schools open as long as possible, have borrowed all the money they could. Some of you may be surprised to know that the school districts of this State now have outstanding bonds aggregating $9,000,000 for buildings, many of which are now inadequate. And, in addition, have á floating indebtedness of $2,000,000 for .current expenses. Schools cannot run long on a credit. They should never be run on a credit. Some of them have reached the limit of their credit and have closed their .schools; others will have to close for want of funds. Some are shortening the term, some are supplementing the public funds with private donations, and some are charging tuition, and the boys and girls of poor parentage who cannot pay for their tuition must quit school. And this in a State whose Constitution requires that the State .shall ever maintain an efficient system of free schools for all her children.”

The Governor concludes the message with the plea that every child shall have an equal chance for a common-school education. The message is too long to insert herein, but it contains no subject whatever except a plea to pass a bill to raise revenue for the support of .the common schools.

Now we do not think that a .special-message can contradict or vary the subject of subjects enumerated in the Governor’s call,.but it can be used in connection with the proclamation and as explanatory of it to ascertain the purpose of the call.

The proclamation advises the Legislature to take such action as is deemed proper in regard to the collection of the tax imposed by act 345 of 1923. This was an income tax act passed for the sole purpose of raising revenue for the public schools of the State. The severance tax act of 1923 referred to in the proclamation provides that the proceeds derived from it «hall be wholly dedicated to the common schools of the State.

Thus we see that the special message, instead of attempting to vary or add to the subject embraced in the proclamation, strictly confines it within the limits of the subject or the purpose mentioned in the proclamation. While the Governor has the power under the Constitution to limit the subjects which the Legislature may consider at a special session, and, in order to do this, he may define the subjects according to his conception of his public duty, still he cannot, under the guise of a definition, impose his will upon the Legislature as to the specific law it shall pass with reference to the particular subject or subjects embraced within the call. In this connection it may be stated that the Governor did not attempt to do this, as is clearly shown by the fact that he signed the bill which the Legislature passed.

The equality of the executive, legislative and judicial departments is recognized throughout our Constitution, and the supremacy of each department in its appropriate sphere is a cardinal principal thereof. It has been well said that, in this matter, “truth lies between the extremes, and the middle of the road is the path of safety.” In re Governor’s Proclamation (Col.), 35 Pac. 530.

It is also a well settled principle of constitutional law that no tax can be levied except for raising revenue for a public use. The right to tax therefore depends upon the ultimate use or purpose for which the money is to be raised. It follows that the use or. purpose for which revenue is raised by taxation is so intimately connected with the object thereof that they necessarily constitute one subject or purpose.

When the proclamation, together with the legislative acts referred .to in it and the special message, are considered and read together, the mind is forcibly and clearly impressed with the idea that the financial distress of the common schools of the State was the purpose of the Governor’s calling the Legislature in extraordinary session, and that this subject was the one to be considered by it.

As a necessary incident to granting relief, of course it would be necessary to pass some kind of a bill for raising money. This, however, was only a means to an end. The raising of the mone}?- by taxation was ancillary to the main purpose, which was the relief of the common schools.

Our Constitution provides that the State shall ever maintain a general, suitable and efficient system of free schools, and, in the opinion of the Governor, this mandate of the Constitution could not be complied with unless he called the Legislature in extraordinary session for the purpose of passing a bill to raise additional revenue for their support and maintenance.

Under the principles of law laid down by the text-writers cited in Jones v. State, supra, “the Legislature may act freely within the call; may legislate upon all or any of the subjects specified, or upon any part of a subject; and every presumption will be made in favor of the regularity of its action.”

The intention of the constitutional provision in question is to prevent the enactment of laws having no connection or relation to the purpose or subject embraced in the call. The particular kind of bill upon the subject embraced in the call is left to the discretion of the Legislature, subject to the right of the Governor’s veto, as provided in'other sections of the Constitution.

While the courts, in determining this question, will inquire whether the legislative act passed at a special session was within the Governor’s call, in doing so they must give a liberal construction with a view of upholding the act if it can be reasonably done. In this way, and in this way alone, can the supremacy of the three departments of the State be preserved.

The Governor, in his proclamation and message, called the attention of the Legislature to the purpose for which they were convened and the subject upon which, in his opinion, there was an immediate necessity for legislation, 'and that subject was school taxation. He could not restrict the Legislature to any particular bill for the purpose. It was for the Legislature to determine what the legislation should be. It passed a bill for thé purpose of raising money for the common schools. This act the Governor approved, thus deciding for himself that it was embraced in the subject mentioned in his proclamation. The bill passed was germane to the subject mentioned in Ms call, and we tliink tliat the court should have so held.

In short, the purpose of calling the Legislature in extra session was to secure additional revenue for the common schools, and tMs was the subject upon which the legislation was sought. The particular Mnd of revenue bill was. ancillary or incidental to the subject, and was merely a means to accomplish the end desired; and the Legislature was 'supreme in this field. It could not, however, have taken up other subjects, such as revenue bills for the relief of road districts, ■ drainage districts, levee districts, and the like, until it had disposed of the subject in hand: additional revenue for the relief of the common schools. Therefore we respectfully dissent.


source: Caselaw Access Project

author: McCulloch, C. J.

license: Public Domain

text:
    St. Louis Southwestern Railway Company v. Martin.
    Opinion delivered June 16, 1924.
    1. Commerce — federal employers’ liability act — application of local acts. — In an action under the Federal Employers’ Liability Act, local statutes imposing duties and liabilities are not applicable.
    2. Master and servant — rule as to switching of cars. — In an action for death of a railroad yard clerk crushed between cars by reason of negligence in kicking a car on a yard track without manning it, a bulletin issued by the yardmaster to engine foremen directing that helpers ride cars cut off into the yard tracks held a general rule, though it referred to the prevailing evil of subjecting merchandise cars to rough handling.
    3. Master and servant — abrogation of rule a jury question.— Whether a rule as to manning cars kicked into the yard tracks had been habitually disregarded and therefore abrogated held a question for the jury.
    4. Master and servant — assumed risk — jury question. — -Whether a yard' clerk, by walking through the yards, assumed the risk of nonobservance of a rule as to manning of cars kicked into yard tracks held for the jury, in view of the conflict of evidence on the subject.
    5. Master a&d servant — assumed risk — extraordinary danger.— Where an employee is aware of the negligence of his employer or of a fellow-servant, and appreciates the danger arising therefrom, he is deemed to assume the risk of such danger, hut he is not bound to anticipate or exercise care to discover extraordinary dangers arising therefrom.
    6. Master and servant — assumed risk. — While an employee assumes such extraordinary risks caused by the master’s or fellow-servant’s negligence as are obvious and fully known and appreciated by him, he does not assume extraordinary risks incident to his employment merely because he was familiar with the dangers and character of the work.
    7. Master and servant — abrogation op rule. — Habitual violation of a rule promulgated by a master does not abrogate it, unless so open and long continued as to raise the presumption that the employer or those appointed by him to enforce it consented to the abrogation or knowingly acquiesced in it.
    8. Master and servant — negligent killing — evidence.—In an action for the death of a yard clerk, evidence held to sustain a finding for plaintiff on the issue of negligence in kicking cars down the yard tracks without manning them.
    Appeal from Jefferson Circuit Court; T. G. Parham, Judge;
    affirmed.

      J. B. Turney, A. H. Kishaddon, and W. T. Wooldridge, for appellant.
    Appellant’s motion for a directed verdict should have been 'sustained. The decedent’s fellow-employees owed him no duty, in switching the cars, to maintain a lookout for his safety, in the absence of a rule requiring it. An employee assumes the risk of injury arising from the nature of his employment, as well as from the particular methods and ways in which the work is carried on. 145 U. S. 418; 201 Fed. 54; 144 Fed. 56, 76 C. C. A. 214; '276 Fed. 187; 178 N. W. 887; 158 Fed. 92. In this case the dangers were not obscure but were perfectly obvious, and the case comes within the exception to the rule that the servant does not assume risks which are not apparent and of which he knows nothing. 191 U. S. 64, 48 L. ed. 96. The decedent had to look out for his own safety, as appears by the undisputed testimony to the effect that the 'switching crews operating in the yards paid no attention to' yard clerks and gave them no warning as .they passed through the yards in the performance of their duties, and decedent well knew these facts. 179 Pac. 191. .See also 121 N. E. 403; 118 Ark. 304; 95 Ark. 562, 164 S. W. (857. From the foregoing authorities! it is submitted that as a matter of law there is no merit in the contention .that the death of plaintiff’s intestate was due to the negligence of hi's fellow-employees in kicking the car onto the track without having it accompanied by one of the switching crew. The bulletin introduced in evidence imposed no duty on the switching crew to maintain a lookout for decedent. Its obvious and only purpose was to protect freight in cars which was liable to be injured by severe impact, and the rule is limited to merchandise cars. 161 Mass. 125; 66 Iowa, 346. If it had originally been intended to require that cars kicked in on switch tracks be manned, and intended for the protection of yard employees, that purpose was subsequently abrogated by constant and open violation of the rule. 32 S. W. 799; 77 Ark. 405; 84 Ark. 377; 117 Ark. 504. Decedent, being aware of the continuous and universal violation of the bulletin, assumed the risk arising therefrom, even if it he granted that the bulletin imposed an absolute duty on the switching crew to man a car kicked in on a switch track. 233 U. S. 492; 245 U. S. 441; 254 U. S. 415; 271 Fed. 268; 160 Ark. 362; 161 Ark. 122.

      Rowell ■& Alexander, for appellee.
    The lookout statute applies to railroad yards as well as to other places, ¡and is for the benefit of employees as well as others. 88 Ark. 204; 83 Ark. 61; 80 Ark. 528; 100 Ark. 476. It is far-fetched to say that the switchmen owed decedent no duty. The extraordinary dang’er to which decedent was exposed is shown, first, because the kicking in of the box-car at excessive speed, without a switchman in control, and -without a switchman present on the car at the point where decedent went through, for the purpose of making the joint, was a violation of the bulletin introduced in evidence; and, second,, because the car must have been kicked in at terrific speed, to cause four standing cars, when struck, to suddenly close a space of four or five feet' and catch decedent therein, all of which was a manifestation of negligence in all respects, and misled decedent. He had the right to assume that the switchman would conform to the requirement® of the rule, iand when he approached the track in question, a merchandise track, and saw no switchman on the oar at the opening, he had the right to presume that there was no danger at that point. The risk arising from the violation of the bulletin was not assumed by decedent. 77 Ark. 367; 29 C. C. A. 374; 43 S. W. 510; 42 N. E. 112. And certainly he assumed no extraordinary risk such as was requested in instruction numbered 4 requested by appellant. 229 Ú. S. 119. Assumption of risk was an affirmative defense, and the burden of proof was on the defendant to 'show it, unless it was shown by plaintiff’s testimony. 140 Ark. 155.
   McCulloch, C. J.

Appellee’s intestate, B. C. Martin, while working in the service of appellant, was crushed between two freight cars in the Pine Bluff yards, and was fatally wounded. He lived about thirty-six hours after the injury, and suffered great pain. He left a widow and children, and this is an action against appellant, instituted by the administrator of the decedent’s estate, to recover under the Federal Employers’ Liability Act. It is conceded that the injury to decedent occurred while working for appellant in interstate commerce, and that, if liability on the part of appellant exists at all, it falls within the terms of the Federal statute.

Deceased was, according to the undisputed evidence, working in the yards as clerk, his duty being to check cars and to weigh them when called upon by the foreman of the switch crew to do so. The injury occurred shortly after ten o ’clock on the night of October 10', 1922.

The yard office was situated north of the main line, toward the eastern end of the yard, and the track scales upon which cars were weighed were situated toward the western end of the yard and south of the tracks, which ran.parallel with the main line. There were twelve of these tracks between the track scales and the main line. The yard-clerk, when on duty, usually remained in the yard office until called or directed to do particular work. When a car was placed by the switch crew on the scales to be weighed, a signal call to the yard clerk would be given from the engine by blasts of the whistle, and it was the duty of the yard-clerk to proceed immediately to the scales to weigh the car. It was necessary for the yard-clerk to cross the intervening tracks between the yard office and the scales. Decedent Martin received his fatal injury while he was crossing track No. 7, proceeding on his way pursuant to a call from the yard office to the scales to weigh a car. There were four cars, coupled together, standing on track No. 7, and another single car within about four feet of the end of the string of four cars. As Martin passed along this space between the end of the single car and the end of the string of four cars, a car which had been “kicked” in on track No. 7 by the switch crew came violently in contact with the other end of the string of cars, and threw them against the single car, catching Martin between the two cars and crushing him. It was dark in the yards at the time, and Martin had a lantern on his arm. These facts are all undisputed, and it is also undisputed that the car “kicked” in on the track was not in charge of any one, but was rolling down the track at a rapid speed, without any one on it to control its movement.

None of the employees engaged in the switching operations saw Martin as he passed along the yard and entered the space between the cars, and the first that any of them knew of Miartin’s dangerous situation or injury was when his. groans or exclamations were heard after the impact of the cars;

The sole charge of negligence involved in the case is the act of the switching crew in “kicking” the car by a “flying switch” into track No. 7 and causing it to roll down the track at a rapid speed, without being manned by some one to control its movement.

In submitting to the jury the issue of negligence there was no cognizance taken of the “lookout” statutes of the State, which apply to the operation of switching cars in railroad yards (St. L. I. M. & S. Ry. Co. v. Puckett, 88 Ark. 204), no mention was made in the instructions of the court as to any statutory duty in that respect of the railway company. The action being based on the Federal statute, supra, local statutes imposing duties and liabilities are not applicable. Seaboard Air Line Ry. v. Horton, 233 U. S. 492; St. L. I. M. & S. Ry. Co. v. Steel, 129 Ark. 520.

It is earnestly insisted that the evidence is not sufficient to sustain the charge of negligence, in that, according to the method in vogue of switching cars in the yards at Pine Bluff, there was no duty resting upon the switching crew to man the freight cars- “kicked” in on the various tracks, and therefore no negligence in failing to observe that precaution..

It is also contended that the deceased was fully aware of the custom with respect-to “kicking” the cars onto sidetracks without manning them, and that he assumed the risk, should be held as a matter of law to have assumed the risk.

It was proved at the trial that, nearly two years before the date of the injury of Martin, the yardmaster issued a-bulletin, directed to engine foremen, which prescribed a rule of conduct in switching cars. The bulletin was dated January 17, 1921, and read as follows:

“To all Engine Foremen: Bepeated attention has been called to engine foremen as to the rough handling of equipment in Pine Bluff yard. Do not see where you are in any way making any headway, as we are continually receiving complaints account concealed damage in merchandise cars, etc., on cars originating here in Pine Bluff and on cars passing through Pine Bluff yard, which are switched in breaking up trains. Effective this date, instruct your engine foremen that the helpers ‘go high’ on these cars that are cut off, and ride them into tracks. "We have got to put an end to this rough handling of equipment in Pine Bluff yards. Acknowledge receipt and understanding of these instructions, and issue instructions to all your switch engine foremen, and secure their acknowledgments, as I am personally going to check these foremen up to see that these instructions are complied with. Acknowledge receipt with return of this letter.

“Yours truly,

“CC: Mr. A. Holmes. (Signed) W. D. Badgett.”

The contention of appellant’s counsel is that this bulletin did not attempt to establish a general rule with reference to the conduct of the switchmen in “kicking” in cars, but merely referred to the protection of merchandise cars. We cannot agree with counsel in this contention. It is true that the bulletin makes reference to the prevailing evil of subjecting merchandise cars to rough handling, but it states unequivocally a direction that helpers must “go high” on the cars “that aré cut off, and ride them into tracks.” This rule is fairly susceptible only to the interpretation that the cars that are cut off and “kicked” onto the tracks must be manned by men riding them into the tracks.

It is next insisted that this bulletin, or rule, was wholly and habitually disregarded to the extent that it was abrogated, and that this is shown by uncontradioted evidence. It must be conceded that there is much evidence of strong probative force tending to show that this rule was totally disregarded and was thereby abrogated, but it cannot be said that this testimony was uncontradicted, and we find evidence in the record which justifies the conclusion that it was always regarded as the duty of switchmen to accompany the cars to the place where they were to be “jointed up,” or, at least, to have men on duty to see “that the cars go in the clear and that the couplings are kept open so that the joints will be made right, and to watch and see that the cars don’t run back, and to watch out for any other object that might be across the track or any obstruction on the track, or for any carman that might be working on the cars, and to look out for any danger signals.” The court did not err therefore in refusing to take' this question from the jury.

The same may be said with respect to the contention that the undisputed evidence shows that the risk was assumed. If the rule was not abrogated, as some of the evidence tended to show, then it cannot be said as a matter of law that Martin, the yard-clerk, by walking through the yards assumed the risk of the danger created by the nonobservance of the rule by the switchmen. If the rule had not been abrogated, Martin had the right to assume that it would not be disobeyed, and he did not assume the risk of possible dangers arising from disobedience of the rule.

Other assignments of error are predicated upon the objections made to the court’s charge to the jury. The court gave, over appellant’s objection, instruction No. 5, which reads as follows:

“You are instructed that it is not the duty of an employee to exercise care to discover extraordinary dangers that may arise from the negligence of the employer or those for whose conduct the employer is responsible, but that the employee may assume that the employer or his agents have exercised proper care with respect to his saféty until notified to the contrary, unless the want of care and the danger arising from it are so obvious that an ordinarily careful person, under the circumstances, would observe and appreciate them.”

We are of the opinion that this instruction is correct. An employee is not bound to anticipate or to exercise care to discover “extraordinary dangers that may arise from the negligence of the employer or those for whose conduct the employer is responsible.” If the employee is aware of the negligent act of his employer or a fellow-servant, and appreciates the danger arising therefrom, he is deemed to assume the risk of such danger by proceeding, but, as before stated, an employee is not bound to anticipate extraordinary dangers arising from the negligence of his employer or a fellow-servant.

Appellant requested the court to give instruction No. 4, and the court modified it by striking out the word “extraordinary” where it appears and inserting the word “ordinary.” The instruction as requested reads as follows :

“If you find from the evidence that the said Martin had been working for defendant company, in its yards at' Pine Bluff, for a number of years, and that he was familiar with the dangers and character of his work in the yards, and the manner and custom of the switching of the cars and the making up of the trains therein, and if you further find that he made no objections to the manner and danger of his work and the manner and danger of the switching and handling of the cars by the switching crews, to his superior or superiors, and continued in the performance of his work and duties, then you are instructed that he assumed, by virtue of his employment, the extraordinary risks incident to his employment. .So, if you find from the evidence that the said Martin was injured by the extraordinary risks of his employment, then plaintiff cannot recover, and you will so find.”

This modification was, we think, correct, for it would have been erroneous to tell the jury that, because the injured employee was familiar with the dangers and character of his work in the yards he assumed, by virtue of his employment, extraordinary risks incident thereto. It is true, as we have already said, that, where an employee is aware of the negligence of his employer or fellow-servant, and appreciates the danger, he assumes the risk, even though it is an extraordinary danger created by negligence. But this instruction goes farther than that and tells the jury that, merely because the employee was familiar with the danger apff character of his work, he would assume the extraordinary risk incident to his employment. This instruction entirely ignored the fact, which could have been and doubtless was found by the jury, that there was a prevailing rule requiring the switchmen to man the cars so as to control them, or to ■ provide other means for that purpose, and, under those circumstances, an extra hazard created by the negligence of the switchmen in failing to comply with that rule would not be assumed by another employee, who had not become-aware of the danger before his injury. Counsel invoke the well-established rule of law that the servant does assume the extraordinary risks caused by the master’s negligence or negligence of a fellow-servant which is obvious and fully known and appreciated by tbe -servant, but the trouble with tbis instruction now under consideration is that it misapplies that principle and brings tbe injured servant within tbe application of tbe doctrine of assumed risk, even where he is injured by reason of the negligence of a fellow-servant without knowledge or appreciation of tbe danger.

Note: Petition for certiorari in the above case was denied by the Supreme Court of the United States. (Reporter).

Finally, it is insisted that the court erred in refusing to give appellant’s requested instruction submitting tbe question of abrogation of tbe rule established by tbe bulletin put in evidence, and in failing to give any other correct instruction on that subject. Tbe instruction requested by appellant reads as follows:

“7. You are instructed that, if you find from tbe evidence that the bulletin introduced in evidence in tbis case, signed by Badgett, was not in force after tbe witness Tucker became -yardmaster, and that said bulletin was habitually violated, then such bulletin was abrogated, and would not be in force after such habitual violation or failure to enforce tbe same.”

Tbe court correctly refused to give .this instruction, for the reason that it was too vague, and failed to give a correct rule for determining whether or not tbe rule bad 'been abrogated. Habitual violation of a rule does not constitute an abrogation unless it is done so openly and continues for a long enough period to raise tbe presumption that tbe employer, or those appointed by him to enforce tbe rule, consented.to tbe abrogation, or knowingly acquiesced in it. St. L. I. M. & S. Ry. Co. v. Caraway, 77 Ark. 405; St. L. I. M. & So. Ry. Co. v. Dupree, 84 Ark. 377; St. L. I. M. & So. Ry. Co. v. Blaylock, 117 Ark. 504.

We do not discover any error in tbe proceeding, and, as the verdict is supported by legally sufficient evidence, tbe judgment is affirmed.


author: Smith, J.

text:
    First National Bank v. Tisdial.
    Opinion delivered June 16, 1924.
    Mortgages — indebtedness secured. — Under a mortgage to a bank which described the mortgagor’s note to the bank and the mortgagor’s note to a third person held by the bank as collateral security for such third person’s indebtedness to it, referring to both notes as an indebtedness of the mortgagor to the bank, and reciting that the mortgage was given to secure such debt, held, where the third person paid his indebtedness to the bank and took up the collateral note, he was not entitled to share in the proceeds of a subsequent foreclosure sale, since the collateral note was not a debt due the bank at the time of foreclosure.
    Appeal from. Clay Chancery Court, Western District; Archer Wheatley, Chancellor;
    reversed.

      F. G. Taylor, for appellant.

      Oliver <& Oliver, for appellee.
   Smith, J.

William Reno was indebted both to the First National Bank of Corning and to F. M. Tisdial, and Tisdial was himself indebted to the bank, and he had indorsed Reno’s note to himself to the bank as collateral to his own note. These notes of Reno viere not paid at maturity, and both were renewed, but, before the renewal, Tisdial had agreed to sell to the bank the Reno note to himself. This sale was referred to as being conditional, and it was never consummated.

On March 2,1920, the cashier of the bank prepared a mortgage conveying an eighty-acre tract of land from Reno to itself, the mortgage reciting a conveyance to the First National Bank, and unto its successors and assigns, forever. Reno’s wife joined in the execution of the mortgage, and released to the bank all her rights of dower and homestead.

The mortgage recited the condition that, “whereas, William Reno and Minnie Reno are justly indebted unto the First National Bank of Corning in the sum of $2,364.42, evidenced by one promissory note dated February 5, 1920, for $1,961.52, due August 5, 1920, with ten per cent, interest from due; one note for $402.90, made to F. M. Tisdial, and assigned by Tisdial to the First National Bank, dated March 2, 1920, and due December 2, 1920, with ten per cent, interest from date until paid.”

A power of sale was granted, and it was provided that the proceeds of the sale should be applied, first, to the costs of the sale; second, “to the payment of said debt and interest, ’ ’ and the remainder, if any, to be paid to the grantor.

Tisdial paid his note to the bank, and, upon doing so, demanded and received from the bank the note to himself from Reno.

When the note from Reno to the bank matured it was not paid, and Reno executed to the bank a new mortgage, conveying the same land to secure the sum then due the bank, which included additional advances which had been made to Reno, and Reno also exécuted to the bank a chattel mortgage.

The indebtedness secured by this second mortgage was not paid at its maturity, and a suit was brought to foreclose it. The bank also foreclosed the chattel mortgage, and realized $798 from the sale of the personal property.

Tisdial lived'- just across the State line, in Missouri, but Corning was his trading point, and service was had against him by publication, and it was alleged in the complaint that “the defendant, Tisdial, claims a lien on said land by virtue of a mortgage, which this plaintiff states has been discharged.” Tisdial filed no answer, and the decree of foreclosure recited that “defendant F. M. Tisdial, who claims a lien on said land, may intervene and file his claim for the same.”

A commissioner was appointed to sell the land, and, at the sale made by him, the bank became the purchaser. In the meantime Reno had died, and Tisdial had entered into possession of the land under an agreement with Reno’s widow, and had cultivated sixteen acres of the land in cotton.

At the term of the court at which the commissioner’s report of sale came on for confirmation, Tisdial filed an intervention,' in which he prayed that the decree of sale be set aside and that the mortgage dated March 2, 1920, be foreclosed, and that, ont of the proceeds of the sale, the two notes there described be paid ratably. Testimony was taken on the issues there joined, and it was in this proceeding that the court found- the rental value of the land, and rendered judgment therefor against Tisdial.

The court denied Tisdial the relief prayed, and confirmed the sale to the bank. The court also found that the rental value of the land during Tisdial’s occupancy was $100, and charged this into the account which was stated.

The bank insists that the testimony shows that the rental value of the land was greater than that fixed by the court; but, without reviewing the testimony on this issue, we announce our conclusion that the court’s finding, on this question does not appear to be clearly against the preponderance of the evidence.

The bank was charged with the proceeds derived from the sale of the property sold under the chattel mortgage, and the court directed that the sum bid by the bank for the land, less the costs of the sale, be pro-rated between the bank and Tisdial in proportion to the amounts of the respective notes, and the bank has appealed from this decree.

The cashier of the bank testified' that the mortgage on the land was taken for the sole purpose of securing the indebtedness due it, and that it was so prepared to secure any indebtedness due the bank at the time of the foreclosure, and that the note owned by Tisdial was included in the mortgage on the assumption that the bank had, in effect, acquired the title to the note, and was, or would be before its maturity, the owner thereof.

Tisdial testified that the mortgage was taken, not for the purpose alone of securing the indebtedness that might be due the bank at the time of the foreclosure, but to secure also the note to his order executed by Reno and described in the mortgage.

.We have concluded that the bank is correct in its contention, and that Tisdial is not entitled to a pro rata distribution of the proceeds of the commissioner’s sale. The mortgage was to the bank alone, and we find no recitals in it which appear to contemplate that the bank was assuming the relation of trustee for Tisdial’s benefit. There are no recitals which provide that Tisdial shall share in the proceeds of the sale. Tisdial was not made a grantee in the mortgage, and the conveyance was to the bank alone. The sum total of the notes is given, and it is referred to as a single indebtedness and as beiug owned by the bank. It is also recited that “this mortgage is also given to secure said bank for any and all other notes, or forms of indebtedness of whatsoever kind, that said bank may hold against the said William Reno, or any renewals or parts of renewals of the notes mentioned herein or held by said bank prior to foreclosure of this mortgage.”

The Reno note to Tisdial was withdrawn from the possession of the bank at the time Tisdial paid his own note to the bank, and that note was not therefore a part of the indebtedness due the bank at the time of the foreclosure.

And if it be true — and we think it is — that the mortgage was intended to secure only the balance due the bank at the time of foreclosure, the Reno note to Tisdial was not secured by the mortgage, although it is described in it, because it ceased to be a part of the indebtedness due the bank when it was withdrawn from the bank’s possession.

The court should not therefore have decreed that Tisdial be allowed to participate in the distribution of the proceeds of the commissioner’s sale, and the decree to that effect is reversed, and the cause will be remanded with directions to the court to enter a decree in accordance with this opinion. It is so ordered.


text:
    Miller County Bank & Trust Company v. Beasley.
    Opinion delivered June 16, 1924.
    1. Appeal and error — appeal from directed verdict. — On review of a verdict directed for plaintiff, the evidence must be viewed in the light most favorable to defendant.
    2. Banks and banking — notice of landlord’s lien. — Where a bank knew of a tenancy at the time a subtenant deposited funds from the sale of a crop to the credit of the tenant, which the bank afterwards applied to the tenant’s debt, it was charged. with notice that the landlord, under Crawford & Moses’ Dig., §§ 6892 and 6894, had a lien thereon for rent.
    3. Evidence — knowledge of law. — A bank" receiving a deposit from a subtenant and afterwards applying it on the tenant’s debt to it is conclusively presumed to have knowledge of the statute giving the landlord a lien on the subtenant’s crop for rent.
    4. Banks and banking — notice to president. — A bank is charged with notice of facts known to its president, and also with such facts as would have .been known by the inquiry which the president should have made, in view of the facts of which he was advised.
    Appeal from-Miller Circuit Court; J. H. MoCollum, Judge;
    affirmed.

      William TL. Arnold, Jr., for appellant.
    The money was Austin’s, and the hank had the right to make the credit. The law of the case is well stated in 7 Corpus Juris, p. 658. See also 36 App. Div. 487, 55 N. Y. S. 941; 69 Ark. 47. Even if the money was Beasley’s, yet he did not notify the bank that it was his money, or that Austin held it as his agent, or in trust. As to the relation between the lessor and sublessee, reference is made to 24 Cyc. 1183, and cases cited in note thereto; Id. 1176; 43 S. "W. (Tex.) 556.. The lower court erred in holding that C. & M. Digest, § 6892, changed the common-law rule that there is no privity of contract or estate between a landlord and a subtenant. That statute was only intended to limit the rights of the landlord. It does not mean that the subtenant is liable directly to the landlord, and was not passed for the 'landlord’s benefit, but to limit the extent of his lien. See also C. & M. Digest, § 6895.

      Gustavus G. Pope, for appellee.
    There is no dispute as to the money involved being the proceeds of rent cotton on lands rented to Willis Austin, and the crop raised by Ed. Johnson. The bank was duly notified when it was deposited, and Beasley informed the president of the bank that it belonged to him for rents 'before the note of Austin was due. C. & M. Dig., §§ 6880, 6894. It is immaterial whether Austin subrented to Johnson or not, or whether he acted as 'Beasley’s agent. He had no authority to collect the rent either way. A landlord’s lien is superior to any other lien, and, even if the Austin note had matured, and if the bank had a right to claim a lien, still it would have been inferior to the landlord’s lien. 151 Ark. 405; Id. 145. Beasley as landlord had the right to the proceeds of the rent cotton deposited in the banks, identified as this was. 165 Pae. 682; 222 S. W. 859.
   Smith, J.

C. A. Beasley owned a small farm which he rented to W. A. Austin for the year 1922. Austin sub-rented a portion thereof to Ed Johnson for a fourth of the cotton. Johnson raised two bales of cotton, one-fourth of the proceeds of which amounted to $57.83, and this amount he deposited with the appellant bank to the credit of Austin, who delivered the certificate of deposit to Beasley in the early fall. On January 4, 1923, Austin gave Beasley a check on the bank for the amount of the deposit, but the bank refused payment upon the ground that it had credited the amount of the deposit to a past-due note of Austin payable to the bank.

At the conclusion of all the testimony the court instructed the jury that Beasley was entitled to one-fourth of the proceeds of the cotton, and that the bank had no right to credit this amount to Austin’s note to it, and to return a verdict for Beasley for the amount thereof — this suit having been brought to recover this money.

The jury returned a verdict in accordance with this instruction, and from the judgment pronounced thereon is this appeal..

The testimony on behalf of Beasley was to the .effect that, about the time the money was deposited, and before it was applied to Austin’s note, Beasley notified Booker, the president of the bank, that the deposit was a part of the proceeds of the sale of Johnson’s cotton, on which he had a landlord’s lien; but, inasmuch as the verdict was directed against the bank, we must, of course, view the testimony in the light most favorable to it.

Mr. Booker denied that Beasley had told him about Johnson, but he admitted that he knew Austin was himself a tenant, and that he had a subtenant, and that Austin had stated to him that he would have some rent due from his tenant, and Austin agreed to apply this rent to his debt to the bank.

Johnson, the subtenant, was a colored man, and Booker admitted that, before Johnson paid his rent, Austin had told him “this darkey would be in to put some money there — rent he owed him.”

We think it clearly appears from Booker’s admissions that he knew, before the deposit was credited, that Austin was a tenant and that Beasley was his landlord, and that the deposit, would be made by a subtenant. Being in possession of these facts, the bank was charged with notice that ¡Beasley had a lien on the crop of the subtenant for the pro rata part of the rent due on the subtenant’s land.

It is pointed out that at the common law there was no privity between the landlord and a subtenant. But this rule has been changed by the statute. .Section 6892, C. & M. Digest, provides that any person subrenting lands or tenements shall only be held responsible for the rent of such lands- as are cultivated or occupied by him; and by § 6894, C. & M. Digest, it is made unlawful for a tenant who has leased lands to a subtenant, and has not paid his own rent, to collect rent from the subtenant without having first obtained from the landlord a written direction, to be delivered to the subtenant, stating the amount of rent authorized to be collected from the subtenant. By § 6896, C. & M. Digest, it is made a misdemeanor, punishable by fine or imprisonment, or by both fine and imprisonment, for a tenant to collect rent from a subtenant without first paying his own rent or obtaining written permission from the landlord to collect from the subtenant. Section 384, chapter Landlord & Tenant, 16 R. C. L. 879; Jacobson v. Atkins, 103 Ark. 91; Storthz v. Smith, 109 Ark. 552; and notes to the cases of Kanawha-Ganley Coal Co. v. Sharp, Ann. Cas. 1916E, p. 386, and the same ease annotated in 52 L. R. A. (N. S.) 977.

It was not necessary for Beasley to call the attention of the bank to these sections of the statute, because the bank is conclusively presumed to have had knowledge of them. The bank will also be charged, not only with the facts actually known by its president, but also with such facts as would have been known by the inquiry which the president should have made, in. view of the facts of which he was advised. It was known to Booker that Austin was Beasley’s tenant. He admits that Beasley so advised him. He knew that Austin’s tenant proposed to deposit rent money to Austin’s credit, and he knew that Austin had not paid his own rent, and, knowing this, he must have known — for the law so provides— that the lien of Beasley was superior to that of Austin against the crop grown by the subtenant to the extent of the pro rata part of the rent due on the land cultivated by the subtenant. Booker knew Austin had not paid his rent; he knew that the deposit was made by a tenant of Austin, and Johnson told him, when the deposit was made, what is was for, and he must therefore be charged with knowledge,' as a matter of law, that the lien of Beasley was superior to that of Austin, and that Austin himself had no right to collect this rent without first paying his own.

Booker should have known that Austin’s tenant was not voluntarily paying rent twice, and he actually knew that Austin had not paid Beasley, for he admitted that Beasley had so advised him, and this was done before the deposit was credited to Austin’s note.

Under these circumstances the verdict was properly directed in Beasley’s favor, and the judgment is therefore affirmed.


text:
    McClain v. State.
    Opinion delivered June 23, 1924.
    1. Criminal law — plea of guilty — withdrawal.—Permission to withdraw a plea of guilty, previously entered, is a matter that rests in the sound discretion of the trial court, under Crawford & Moses’ Dig., § 3076.
    2. Criminal law — exercise of discretion — presumption.—Where the court denied a petition to withdraw a plea of guilty, every presumption must be indulged in favor of the court’s proper exercise of its discretion.
    Appeal from .Sebastian Circuit Court, Greenwood District; John E. Tatum, Judge;
    affirmed.

      J. S. Utley, Attorney General, and John L. Garter, Assistant, for appellee.
   McCulloch, C. J.

Appellant was indicted for felony, and entered a plea of guilty, which the court accepted and upon which the court entered judgment. The judgment entered recites that appellant appeared in person as well as by attorney, and waived arraignment, and entered a plea of guilty. After the entry of the judgment and on the same day appellant, through another attorney, filed his petition praying that the court set aside the judgment and permit him to withdraw his plea of guilty and to enter a plea of not guilty. In the petition it was alleged that appellant was not guilty of the charge against him, and that, in the absence of his attorney, he was “unduly influenced and persuaded to enter a plea of guilty.” On a later day of the term the court heard the petition and entered an order overruling it, from which order and judgment an appeal has been prosecuted to this court.

There was no motion for a new trial filed nor bill of exceptions taken in the case — nothing appears in the record save the papers on file and the record entries.

There is a statute (Crawford & Moses’ Digest, § 3076) which provides that the court may, at any time before judgment, permit a plea of guilty to be withdrawn and a plea of not guilty substituted. It has often been held by this court that permission to withdraw a plea of guilty previously entered is a matter that rests in the sound discretion of the trial court. Greene v. State, 88 Ark. 290; Joiner v. State, 94 Ark. 198; Duncan v. State, 125 Ark. 4. There is no statute on the subject of withdrawal of pleas after rendition of judgment, but the court has the power to set aside its judgment at any time before the expiration of the term. There is nothing to show that the court abused its discretion, and we must indulge every presumption in favor of the court’s proper exercise of its discretion.

Affirmed.


author: McCulloch, C. j.

text:
    Bank of Morrilton v. Skipper, Tucker & Company.
    Opinion delivered June 23, 1924.
    1. Guaranty — construction of contract. — It is the duty of the court to interpret a guaranty contract according to its language if clear and unambiguous.
    2. Guaranty — contract held to be absolute. — A contract of guaranty of the payment of a debt held to be absolute, and liability of the -grantor matured immediately upon the failure of the principal debtor to pay, so that it was not essential that, before suit may-be commenced against the grantor, suit be begun against the principal debtor and the claim reduced to judgment.
    3. Guaranty — construction of contract. — A contract whereby defendant guaranteed the payment to plaintiff of the account of a third person was not continuing and did not cover debts subsequently created.
    4. Guaranty — waiver of fraud. — A bank which guaranteed payment under a contract, did not waive fraud in obtaining the contract of guaranty by making a payment to the guarantees of funds of the principal debtor in its hands.
    5. Banks and banking — authority of bank to make guaranty.— The authority of a bank to execute a contract of guaranty on the ground that it was a contract for its own benefit in the prosecution of its authorized business held properly submitted to the jury.
    Appeal from Conway Circuit Court; J. T. Bulloch, Chancellor;
    reversed.

      Strait & Strait,, for appellant.
    1. The appellant was entitled to a new trial because the P. J. Lewelling Construction Company was not, in fact, made a party defendant,- by amendment of the 'complaint, so as. to set up any allegations against that company, and there was no evidence of any bona fide effort to procure service on it,- nor of any legal service upon it. There was no evidence that that company was a foreign corporation, nor any showing that the officers, agents or representatives thereof were not located in this State. The attempted oral proof of service on the Auditor was not legal proof of such service. 4 Ark. 570; 28 Ark. 7.
    2. The appellant, as a banking corporation, was not authorized to exercise the privileges -of a surety company. It could not, by an instrument of the character sued on, guarantee the payment of another person’s indebtedness, and the attempt of its president to bind the bank by the execution of the instrument in suit was ultra vires, and void. 96 Ark. 594; 95 Ark. 368.
    3. By the instrument sued on there was no guaranty of -any payment except the -account due Skipper, Tucker & -Co., referring to the then existing indebtedness, and not to any indebtedness arising in the future. 12 Minn. 279; 17 Wis. 181; 75 N. Y. Supp. 563; 4 S. E. 925; 18 N. Y. Supp. 412; 6 Abb. N. C. 206; 19 N. J. Law, 340; 54 Conn. 310.

      Edw. Gordon and Calvin Sellers, for -appellees.
    1. There was sufficient proof of the corporate existence of the Lewelling Construction Company, and that it was a foreign corporation. The-oral pro of-of the service of the summons was sufficient to show that service was had on the Auditor of State.
    2. Appellant was authorized to sign the guaranty sued on. The consideration therefor was the Surrender to the hank of certain moneys or checks in the hands of N. B. Skipper to the hank. Appellant is estopped to plead ultra vires. '74 Ark. 377; Id. 190; 77 Ark. 109; 96 Ark. 594; 91 Ark. 367; 86 Ark. 287; 96 Ark. 308.
   McCulloch, C. j.

Appellees, Skipper, Tucker & Company, a copartnership, instituted this action against appellant to recover'on a contract between the parties whereby appellant undertook to guarantee the payment of an account due to appellees by the Lewelling Construction Company. The' contract is as follows:

“Morrilton, Arkansas, April 23, 1921. The undersigned, Bank of Morrilton, in consideration of the sum of $1 in hand paid, agrees to and does hereby guarantee the payment of the account due Skipper, Tucker & Co. by the Lewelling Construction Company.

“Bank ob Morrilton,

“'By Loid Rainwater, President.”

It is alleged in the complaint that, at the time of the execution of this contract, the Lewelling Construction Company owed appellees on account the sum of $4,821; that this amount was increased by later purchases on account, which ran the aggregate up to $5,505.10, and that a payment had been made thereon reducing the account to the sum of $2,005:10, for which recovery was prayed.

The contention of appellees was that the guaranty was a continuing one,'covering'subsequent purchases by the Lewelling Construction Company, and that they are entitled to recover the full balance due on account, including subsequent purchases.

The contention of appellant is that the contract is not a continuing guaranty, but merely covers the.amount of the account owing to appellees at the time of the execution of the contract.

Appellant defends on the ground that appellees represented to appellant, at the time of the execution of the contract, that the amount of the account was $2,500, and that the construction company had enough coming to it from certain road districts to cover the indebtedness due by the construction company both to appellant and to appellees. Appellant also claimed that there was a misrepresentation concerning the amount due by the road districts to the Lewelling Construction Company as retained percentage, and that these fraudulent misrepresentations induced appellant to enter into the contract.

There was a judgment below in favor of appellees for the sum of $2,005.10, and an appeal has been duly prosecuted.

The facts developed on the trial were that, at the time of the transactions under consideration between appellant and appellees, the Lewelling Construction Company had about completed a contract with a certain road improvement district in Conway County. The construction company had been dealing with appellees, purchasing supplies from them, and had also received large advances in money from appellant bank. Appellant had secured from the construction company an assignment of all amounts due from the road district, and had applied to the district for payment, but the voucher had not been issued — there appears to have been some unreasonable delay in the issuance of the voucher. One of the members of appellee firm was secretary and treasurer of the road improvement district, and, in order to secure the help of appellees in getting the voucher for the retained percentage turned over to appellant, the latter executed the contract of guaranty in the suit. The check, or voucher, was for $13,500, and, as soon as it was delivered to appellant bank, another creditor of the Lewelling Construction Company — one Horn, by name — sued the construction company and caused a writ of garnishment to be served on the bank to reach this fund, claiming that it belonged to the construction company. In this situation, appellant bank paid over to appellees the sum of $3,500, and appellees executed to appellant the following agreement in writing:

“7/6/21. In consideration of $3,500 paid on account of Skipper, Tucker & Co. versus Lewelling Construction Co., we hereby agree to wait until garnishment is released before taking any legal action for balance held by Bank of Morrilton due us.

“Skipper, Tucker & Co.

“By N. B. Skipper.”

This amount was released from the garnishment by agreement between the bank as garnishee and the other parties to that suit.

Appellant introduced testimony tending to show that members of appellee firm, at the time of the execution of the contract of guaranty, represented to appellant that the debt of the construction company to appellees was not over $2,000 or $2,500. Appellant also introduced testimony to the effect that appellees represented to appellant that the amount due from the road improvement district to the construction company as retained percentage was about $17,000.

The testimony was sufficient to warrant the submission to the jury of the issues concerning these alleged misrepresentations, and the question whether the misrepresentations, if made, constituted the inducing cause for appellant entering into the contract. The evidence was conflicting on these issues.

Appellant filed a motion to require appellees, as plaintiffs, to make the Lewelling Construction Company a party to the suit. The court sustained the motion, and ordered appellees to make the construction company a defendant, and the cause was postponed1 until the next term of court to await service of process on the construction company. No formal complaint against the construction company was filed, however, but service was issued, and, during the progress of the trial, proof was introduced to show that a return had been made by the sheriff of Pulaski County, showing service on the construction company as a foreign corporation not having an agent in the State, the service having been made on the Auditor of State. Appellant raised the question, during the progress of the trial, that the construction company had not properly been brought in, and appellant’s counsel insist now that there should be a reversal of the judgment for the reason that there is no proof that the construction company is a corporation, either domestic or foreign, and that the proof was not sufficient to show that there was proper service of summons. Appellees introduced proof tending to show by the general reputation of the construction company that it was a corporation.

We deem it unnecessary to discuss in detail the question debated as. to whether or not the construction company was a corporation and had properly been served, for we are of the opinion that it was unnecessary for appellees to make the construction company a party to the suit, and that appellant was not prejudiced by failure to do so.

It was the duty of the court to interpret the contract according to its language, if clear and1 unambiguous, and it is obvious, from a consideration of the language of the contract, that it was an absolute guaranty of the payment of the debt, and not conditional. Such being the ease, the contract was an original undertaking to pay the debt, and liability of the guarantor immediately matured upon the failure of the principal debtor to pay, and it is not essential that, before the obligee is entitled to sue the guarantor, suit be commenced against the principal debtor and the claim reduced to judgment. Friend v. Smith Gin Co., 59 Ark. 86.

Errors are assigned with respect to the court’s charge to the jury. Exceptions were separately saved to the following instructions given by the court, over the objections of appellant:

“4. You are further instructed that the written guaranty signed by the Bank of Morrilton would not make defendant, Bank of Morrilton, liable for any indebtedness due to plaintiff, Skipper, Tucker & Company, by the Lewelling Construction Company, created subsequent to the date of said -written guaranty, unless yon find1 that, by the agreement entered into between the parties at the time of the payment of the $3,500, was an admission of the indebtedness of the balance of the account by said Lewelling Construction Company to plaintiff up to that date, and if from the evidence you find this to be true, then the court instructs you that defendant, Bank of Morrilton, is liable to plaintiff for whatever sum was due and unpaid at the time the $3,500 was paid, and if you find this to be true, and find further that the garnishment pending between the P. J. Lewelling Construction Company and W. C.- Horn has been released, then your verdict should be for the plaintiff for whatever balance remains due at the time of the date of the payment of said $3,500 as shown by the testimony, together with 6 per cent, interest from the date of filing suit.

“5. You are instructed that, although you may find or believe the Bank of Morrilton obligated itself to pay the indebtedness of plaintiff, and, under ordinary conditions, would be liable therefor, still if you further find that plaintiff, through its representatives, represented to the defendant, Bank of Morrilton, that the indebtedness of the P. J. Lewelling Construction Company which it was to assume was less than it actually was, and that the Bank of Morrilton, through its officers, relying upon this statement, was induced to sign any agreement to pay such indebtedness, then such representations would constitute a fraud in law upon the bank, which would annul the contract and release the bank from liability, and if you find this to be true, then your verdict should be for the defendant, unless you find the defendant bank waived this defense.

“6. You are further instructed that if you find, or believe, from the testimony in this case, N. B. Skipper represented to the defendant’s officers that the retained percentage due the P. J. Lewelling Construction Company from Road District No. 4 was sufficient to pay the indebtedness of the bank, and the plaintiff, Skipper, Tucker & Company, and1 the defendant relied upon this statement and believed same to be true, and, so believing, was induced to or did sign an agreement assuming the liability of the P. J. Lewelling Construction Company to Skipper, Tucker & Company, and was induced to sign same by such representations, when in fact said retained percentage was not sufficient, then such representations would in law constitute a fraud, and defendant would not be liable upon its agreement, and, if you find this to be true, your verdict should be for the defendant, unless defendant has waived this defense.”

We are of the opinion that each of these instructions was erroneous. Instruction No. 4 was correct in stating that the contract only rendered appellant liable for indebtedness due or owing to appellees by the Lewelling Construction Company at the date of the execution of the contract, and not for any debt subsequently created, but the instruction is erroneous in stating that the payment of the sum of $3,500 on the debt rendered appellant liable “for whatever sum was due and unpaid at the time the $3,500 was paid.” The payment of the sum of $3,500, or any other sum, had nothing to do with fixing the extent of appellant’s liability; that was fixed by the contract itself, which was only an undertaking to pay the amount dhe to appellees by the construction company at the time of the execution of the contract of guaranty The receipt, or' contract, executed by appellees at the time of the payment of this sum of $3,500 created an obligation on the part of appellees not to sue for any balance until the garnishment was released. This instrument imposed no additional liability on appellant, nor is there any testimony tending to show that appellant, in the payment of the sum of $3,500, assumed any additional obligation other than that expressed in the original contract.

Instructions-Nos. 5 and 6 were both erroneous in submitting to the jury the question whether or not appellant waived the defenses of misrepresentation recited in those instructions. There is no evidence of any such waiver. The payment of the $3,500 ont of the funds received from the Lewelling Construction Company did not of itself constitute a waiver, and there is nothing in the receipt, or contract, executed by appellees, the acceptance of which by appellant would imply a waiver of the défense of misrepresentation.

We are of the opinion that, upon the proof made in the case, the court should have submitted to the jury the issues concerning the misrepresentation, both with respect to the amount of the account of the construction company to appellees and as to the amount of the retained percentage due from the road improvement district to the construction company, without any submission of the question of waiver of those defenses.

The court properly submitted to the jury the question of the authority of appellant, as a banking institution, to execute the contract of guaranty, on the ground that it was a contract for its own benefit in the prosecution of its authorized business. There was no error in that regard.

But for the errors indicated in giving instructions Nos. 4, 5 and 6, the judgment will be reversed, and the cause remanded for a new trial. It is so ordered.


text:
    Tidwell v. J. H. Askew & Company.
    Opinion delivered June 23, 1924.
    1. Fraudulent conveyances — effect of return of nulla bona.— . A return of nulla bona on execution makes out a prima facie case of insolvency of a debtor in an action to set aside conveyances made by him as fraudulent.
    2. Fraudulent conveyances — voluntary conveyances. — Voluntary conveyances are presumptively fraudulent as against the grantor’s existing creditors.
    Appeal from Nevada Chancery Court; G. E. Johnson, Chancellor;
    affirmed.

      J. O. A. Bush, for appellants.

      Tompkins, McRae & Tompkins, for appellees.
    Appellant is mistaken in contending that it was necessary to go beyond proof of the issuance of the execution and the nulla bona return by the sheriff, and introduce other proof that the defendant did not have sufficient property out of which the execution could be made. The nulla bona return was conclusive evidence that the judgment creditors had exhausted their legal remedies, and they were under no obligation to proceed further with testimony of defendant’s insolvency. 39 Ark. 70, 75; 146 111. 275; 23 L. R. A. (N. S.) 68 et seq.; 66 Ark. 486; 63 Ark. 417.
   McCulloch, C. J.

Appellees instituted this action against appellants in the chancery court of Nevada County to cancel three conveyances of land, executed by appellant John Tidwell to his three children, the other appellants. Appellees were judgment creditors of John Tidwell at the time of the institution of the action, and they allege that the conveyances were executed1 for the fraudulent purpose of hindering and delaying appellees as creditors. The chancery court decreed the appellees the relief prayed for, and an appeal has been prosecuted to this court.

John Tidwell owned a tract of land containing 640 acres, and he occupied 160 acres of it as his homestead, and conveyed the other three quarter-sections to his children. Tidwell was indebted to appellees on two notes executed by him to appellees, one for $750, dated January 20, 1920, and due October 1, 1920, and the other for $581.53, dated March 19, 1921, and due October 1, 1921. The deeds in controversy were executed1 by Tidwell'to his children on June 16, 1922, • and thereafter appellees reduced their claim against Tidwell to judgment and sued out an execution, on which there was a return of nulla bona, and then commenced this action to cancel the deeds as fraudulent.

Prior to the execution of the deeds to his children, John Tidwell had given an oil lease on the land, and in the deeds to his children he reserved all mineral rights. Subsequently he assigned his royalty to accrue under the lease. He was to receive an annual rental of $313.50 under the oil lease, and appellees, at the commencement of this action, caused a garnishment to be served on the lessee to impound the rental price for the current year. The garnishee appeared and paid the rent into court, and, on final decree, the court sustained the garnishment and directed the clerk to pay the money over to appellees on their judgment. The court also canceled the conveyances, and ordered the land to be sold to pay the balance of the judgment debt due appellees.

About the only contention here in attacking the correctness of the court’s decree is that the proof failed to show that appellant John Tidwell was insolvent at the time he executed the deeds to his children. .The answer to that contention is that the nulla bona return of the sheriff was sufficient to make out a prima facie case of insolvency. Hunt v. Weiner, 39 Ark. 70; Euclid Ave. Natl. Bank v. Judkins, 66 Ark. 486. The conveyances by Tidwell to his children recited a consideration of one dollar, and there is no proof that any other consideration was paid. The conveyances were evidently voluntary, and the well-established rule is that a voluntary transfer of property is presumptively fraudulent as against existing creditors. Driggs & Co.’s Bank v. Norwood, 50 Ark. 42; Fluke v. Sharum, 118 Ark. 229. The facts developed by appellees in the proof show that appellant Tidwell rendered himself insolvent by stripping himself of substantially all his property except that which was exempt. It left him with no real estate except his homestead1, and there is no proof of any personal property in excess of his constitutional exemptions. The oil lease was of uncertain value, and it does not appear to have a value in' excess of the exemptions. Appellant made no attempt ■to overcome the presumption of insolvency by introducing any proof.

We are of the opinion that the decree was correct, and the same is in all things affirmed.