text:
    P. J. Lewelling Construction Company v. Longstreth.
    Opinion delivered December 11, 1922.
    1. Trial — repetition op instructions. — Refusal of instructions which, in so far as they contained correct declarations of law, were covered by other instructions held not error.
    2. Evidence — opinion of witness. — In an action for injuries to an employee, struck by a rock which' fell from a rock quarry • chute, in which it was alleged that the employer was negligent in that the sides of the chute flared out when they should have been perpendicular, and in that the sides were not sufficiently high, testimony of a witness, shown to possess the requisite knowledge and experience, as to the respect in which the chute was defective, without testifying that such defect constituted negligence, held not error.
    3. Master and servant — defective instrumentality — negligence. — Evidence that the sides of a chute were flared out, instead of perpendicular, and only 10 or 12 inches high, and that the higher the sides the less the probability that a rock would fall out of the chute held to sustain a finding that the employer was negligent in not having the sides of the chute higher and perpendicular.

      4. Master and servant — negligence—evidence.—In an action days before plaintiff was injured the employer gave orders to for injuries by rock falling from a chute testimony that a few days before plaintiff was injured the employer gave orders to have both sides of the chute extended held admissible as tending to show that the employer knew that the sides were not sufficiently high.
    5. Master and servant — assumed risk. — Where the defendant’s testimony tended to prove that plaintiff, a rock quarry employee, knew the danger of rocks falling from a chute, and plaintiff offered no testimony of such knowledge, he will be held to have assumed the risk.
    6.' Master and servant — assumed risk. — If an employee knows and appreciates the danger of his employment, it is not necessary that he be warned of such danger to charge him with assumption of risk.
    Appeal from .Jackson Circuit Court; Dene II. Colemcm, Judge;
    reversed.

      Coleman, Robinson & House, W. G. Riddick and Jno. W. S Jos. M. Slayton, for appellant.
    Appellant was not negligent. 80 Ark. 260; 46 Ark. 555; 118 Ark. 304; 18 B. C. L. sec. 122; 97 Ark. 181. Appellee assumed the risk of the danger which caused his injury. 135 Ark. 480; 135 Ark. 563; 129 Ark. 95;' 134 Ark. 491; 123 Ark. 119; 130 Ark. 486.

      Neill Bohlinger, for appellee.
   Smith, J.

Appellant corporation operated a nock crusher, and appellee was one of its employees. The rock quarry was situated on the side of a hill. The crusher itself was erected on a level space at the bottom, or near the bottom, of the hill, while the rock was taken from the quarry at a higher elevation upon the hillside. Between the crusher and hillside, and over the. crusher, a platform was erected, which was six to ten feet above the level of the ground on which the crusher was placed. From this platform a chute extended up the hillside toward the bed of the quarry. This chute was eighteen or twenty feet long. The upper end of it at the quarry bed was about ten feet higher than the lower end at the crusher platform.

Bock was taken from the quarry in carts to the upper end or mouth of the chute, and there dumped into the chute so as to slide down on the platform over the crusher. Two men worked on the platform immediately at the lower end of the chute, and shoveled the rock that came down the chute into the crusher bin. After passing through the crusher the rock went into a mechanical conveyor or elevator, which carried it up to a revolving screen, through which it passed before being loaded into wagons and hauled away.

Bock from the quarry was brought to the upper end of the chute in carts drawn by mules. The capacity of the carts was about one-third cubic yard of rock. The driver of the cart backed it up to the mouth of the chute, so that a man working there was able to dump the load of rock into the chute, and the rock rolled down the length of the chute to the men at the lower end, who threw it into the órusher. The capacity of the crusher was something like a cart-load of rock every two to five minutes. The capacity of the chute itself was about seven cubic yards of rock. ■

The men who worked at the bottom of the chute were directly in the path of the rock coming down the chute, and it was the custom not to dump rook into the upper end of the chute until all of the preceding load had been shoveled into the crusher, and it was also the custom for the man who dumped the rock at the top of the chute to warn the men at the bottom before dumping a load of rock, in order that the men below might step aside. Appellee was not working at either end of the chute, and was not injured there.

The chute was built of wood, and was six or eight feet wide at the upper end and three or four feet wide at the lower end. The bottom of the chute was concave, and was lined with sheet-iron so that the rock would slide down easier. The slope of the chute was so gradual that rock dumped into it did not always slide to the bottom of the chute before the sheet-iron was put in. Appellee assisted in putting in this sheet-iron for the chute.

Appellee was twenty-five years old, and had been employed about the chute for several months before his injury. He was employed as oiler, and his duties as such required him to be around the machinery of the rock crusher, the conveyor, and the screens, to see that the machinery was well oiled, and he was also required to clean up the rock which fell from the conveyor and the screens. This last duty, while- performed frequently during the day, required only a short time for each performance.

Appellee and another employee were engaged in cleaning up this loose rock, which had fallen from the conveyor and screens, by shoveling it into a wheelbarrow. Appellee was leaning on the wheelbarrow when one of the rocks, weighing thirty to forty pounds, dumped from the cart above, bounced out of the chute and hit him on the head, inflicting an injury of a most serious character.

The negligence alleged as a basis for the cause of action was that the chute was defectively constructed, in that its sides flared out, when they should have been perpendicular, and that the sides were not sufficiently high.

The court gave a large number of instructions at the request of the respective parties, none of which are objected to as erroneous. The court, however, refused to give instructions numbered 7, 17 and 18, requested by appellant, and this refusal is assigned as error. This assignment of error may be disposed of by saying that, in so far as these instructions contained -correct declarations of the laAV, they were covered by other instructions which were given.

Over appellant’s objection, the court permitted witness Warren to be asked in what respect the chute was defective, to which the objection was made that the Avitness had not shown himself qualified to answer, and because he should state how it was constructed and how others are constructed, and draw a comparison and let' the jury decide whether there was a defect. The witness answered: “Well, in a way it was strong enough to support the rock, but the side being flared out gave the rock more opportunity to climb the sides and fall out as •they started down the chute. They had a tendency to want to roll and of catching on the side at the bottom of the chute; and when they did they were apt' to climb the side more Avith the sides being flared than they would if absolutely perpendicular. ”

We think no error was committed in permitting the witness to state in what respect the chute was defective. He was not asked to state, nor did he testify, that the defect constituted negligence. It would, of course, have been improper for him to have expressed that opinion.

The question asked was in what respect the chute was defective, and the witness showed that he possessed the experience and knowledge to answer the question. The chute was of simple construction; but we cannot say that one inexperienced in its operation must have known the effect of its having sloping sides. The master was not required to furnish any particular kind of appliance, and the witness did not say the master was negligent in furnishing the one in use. He stated a fact within his observation and experience, and the jury were left to say whether the use of the defective chute was negligent. Holmes v. Bluff City Lbr. Co., 97 Ark. 181; Little Rock T. & E. Co. v. Nelson, 66 Ark. 494; St. L. S. W. R. Co. v. Morris, 76 Ark. 542; Plumlee. v. St. L. S. W. R. Co., 85 Ark. 488; Dardanelle Bridge Co. v. Croom, 95 Ark. 284; Newport Mfg. Co., v. Alton, 130 Ark. 542.

There was testimony that the sides of the chute were only ten to twelve inches high, and also testimony to the effect that the higher the sides the less probability there was that a rock would fall or bounce out of the chute; and we think the jury might have found from the testimony that appellant was negligent in not having the sides of the chute higher and perpendicular.

The court permitted testimony on the part of appellee that a few days before appellee was injured appellant gave orders to have the sides of the chute ex: tended. Appellant objected to this testimony; but, as it tended to show that the sides of the chute were not sufficiently high, and- that appellant knew that fact, and as the orders were given before the injury, the testimony was properly admitted.

■ The-real question in the case is whether it should not be said, as a matter of law, that appellee was injured as a result of one of the usual and ordinary risks of the employment which he must be held to have assumed when he accepted his employment.

In proving the negligence of appellant, appellee calls attention to the testimony of appellant’s witness Barlie, who testified that other rocks had fallen out of the chute, and that witness Barlie had cautioned appellee of the danger of his position by directing appellee to instruct a fellow employee nicknamed Sailor, who had had less experience about the crusher than appellee had had, to keep “back from under the platform when a cart of rock was dumped into the chute.” The purpose of this warning which appellee was directed to communicate to Sailor was to warn him to gather up the loose rock at times when no rock was being dumped into the chute from the carts above. This testimony tends to prove that the chute was defectively constructed, but it also shows that appellee was familiar with its danger and appreciated the hazard thereof, and, if true, appellee was injured as a result of one of the usual and ordinary risks of the employment.

The testimony shows that the place and arrangement of the crusher, and its method of operation, was open and apparent; yet there may be some question as to whether or not appellee should have known, or did know, of the danger of the falling rocks, as we cannot say that the jury must necessarily have accepted Barlie’s testimony as true, and for that reason we do not dismiss the case upon its reversal. Appellee’s work did not carry him into a place of danger unless the rock bounced out of the chute. Appellee did not work at the immediate foot of the chute where rocks fell by gravity, and the only danger to him was that, by bouncing, some rock might fly out of the chute, and this was the way in which he was injured.

"We have read appellee’s testimony carefully, and he nowhere says that he did not realize and appreciate the danger to which his employment subjected him, although he made no admission of that fact, and if he had this knowledge he must be held to have assumed the risk.

After Barlie and other witnesses had testified about the falling rock, and the apparent danger therefrom, appellee was recalled, and, as we have said, he did not deny that he had seen the rock falling in the manner in which he was injured, nor did he state that he did not appreciate the danger from the falling rock and the necessity of getting “back from under the platform when a cart of rock was being dumped into the chute.”

The only question appellee was asked on this subject was: “Had you been warned or cautioned by anybody connected with the Lewelling Construction Company that working under that conveyor was a dangerous place?” and he answered: “No sir, no, otherwise than some of the machinery might break or something.”

If appellee knew and appreciated the danger of his employment, it was not necessary that he should have been, warned of its dangers before he would be chargeable with the assumption of its risk; and, as he did not deny the testimony of Barlie, set out above, we must conclude that he knew and appreciated the dangers of his employment, and, this being true, he is chargeable as a matter of law with an assumption of the risk of injury therefrom.

Under the case made the court should have directed a verdict in favor of appellant, and the judgment of the court below is reversed, and the cause remanded for a new trial.


source: Caselaw Access Project

author: Humphreys, J.

license: Public Domain

text:
    Road Improvement District No. 4 v. Mobley.
    Opinion delivered December 11, 1922.
    ,1. Judgment — relief against in equity — unavoidable casualty. —Courts of equity will relieve against unwarranted or unconscionable judgfnents obtained in a court of law by compelling •' the party who obtained the judgment to submit to a new trial if the injured party lost his right of appeal through an unavoidable casualty.
    2. Judgment — relief against in equity — unavoidable casualty. . —The right to an appeal was not lost by “unavoidable casualty” where .the court stenographer repeatedly promised to transcribe his notes in time, but, through neglect or forgetfulness, failed to do so in time to prepare the bill of exceptions.
    Appeal from Prairie Chancery Court, Northern District; John M. Elliott, Chancellor;
    affirmed.

      Emmett Vaughan and Brundidge $ Neelly, for appellants.
    The complaint waá sufficient for equitable relief from the judgment. 15 R. C. L. 730, 743; 7 Cranch 362; 61 Ark. 341; 61 Ark. 354. '

      Epps Brown and J. E. Carmichael, for appellees.
    The appellant might have filed a skeleton bill of exceptions and asked for time. Their negligence or the negligence of a subordinate officer of the court would bar the relief asked. 35 Ark. 123; 61 Ark. 341; 52 Am. Dec. 501; 47 Am. Dec. 621. The question as to whether there are sufficient grounds to vacate the judgment must be decided first. 99 Ark. 372; sec. 4435, Kirby’s Digest. The question as to whether or not there was a good defense to the action in the circuit court cannot be decided in the absence of a complete record.
   Humphreys, J.

This is an appeal from a decree of the Prairie Chancery Court sustaining a demurrer to, and dismissing, appellant’s bill seeking to review the proceedings and obtain a new trial in a case in the circuit court, wherein appellees obtained a judgment for $11,645 against appellant. The bill, in substance, alleged that said judgment was obtained in the circuit court, upon the theory that appellant had breached a contract, entered into between it and appellees, for building certain sections of a highway in Road Improvement District No. 4, in said county, whereas no breach of the contract was either alleged or proved; and also that appellant was deprived of its right of appeal by the failure of W. H. Prince, the court stenographer, who took the evidence in the circuit court, to transcribe his shorthand notes within 120 days after the rendition of the judgment, the time allowed it to prepare and file a bill of exceptions in the cast. Nil the pleadings in the suit in the circuit court, and the letters written to the stenographer by the attorneys for appellant and received by them from him, relative to transcribing his notes, were attached as exhibits to the bill. The testimony in the case in the circuit court was not transcribed and embraced in the bill, or made a part of and attached to it as an exhibit, but the bill requested that said stenographer be required to transcribe his notes and furnish the testimony to the chancery court, to the end that the proceedings in the circuit court might be received. Under our view of the first question involved on this appeal, we deem it unnecessary to set out the pleadings and exhibits thereto *in the suit in the circuit court. Belative to the failure of the stenographer to transcribe his notes, the bill contains the following allegation: “Prince, as court stenographer, up until the very day of the expiration of the time for filing said bill of exceptions, promised appellant and its attorneys that said bill of exceptions would be prepared in ample time and filed; that on the date that the time expired for filing of same, said Prince called the attorneys for the appellant and advised them that he had been mistaken as to the time- limit of filing said bill of exceptions and was unable to prepare and file same; that appellant was deprived of its right of appeal in said cause by reason of the promises of said stenographer, which it relied upon and believed, and through no fault or carelessness of it or its attorneys.” The correspondence between the-attorneys for appellant and the stenographer shows that said attorneys from time to time, during the 120 days period allowed for preparing and filing the bill of exceptions, requested and urged the stenographer to transcribe his notes, and that the stenographer assured them, until the day the time expired, that he would do so.

The first question to be determined, and the turning point in the case, is whether appellant was deprived of its right to appeal from the judgment rendered against it in the circuit court on account of an unavoidable casualty. This court has laid down the rule, that courts of equity will relieve against unwarranted or unconscionable judgments obtained in a court of law by compelling the party who obtained the judgment to submit to a new trial, if the injured party lost his right of appeal through an unavoidable casualty. Leigh v. Armor, 35 Ark. 123; Kansas & Arkansas Valley Rd. Co. v. Fitzhugh, 61 Ark. 341. The reason of the rule is that equity will always afford a remedy, if none exists at law, to one who has been diligent and has a meritorious cause of action or defense. "We do not think the failure of appellant to prepare and file its bill of exceptions in the law case was due to an unavoidable casualty. The time of 120 days was given to appellant, not to the stenographer. The stenographer’s forgetfulness as to the date of the rendition of the judgment, or his neglect to transcribe his notes, is in no sense an unavoidable casualty. Death or sickness of. the stenographer, under certain circumstances, might be so regarded. Diligence on the part of appellant required that he ascertain the progress being made by the stenographer in the preparation of the evidence, and not rely alone upon the promises made by the stenographer that he would transcribe his notes before the time expired. According to the correspondence, the evidence was lengthy, and it was appellant’s duty to see to it that the stenographer began in time to complete the work, and that he did complete it, before the expiration of the time allowed for preparing and filing the bill of exceptions. A rule of diligence, to govern losing parties in lawsuits, should not be laid down which might result in new trials being granted and judgments enjoined on account of the negligence or forgetfulness of court stenographers.

The decree is affirmed.

Justices Hart and Smith dissent.


text:
    Greeson v. St. Louis Union Trust Company.
    Opinion delivered December 11, 1922.
    Mortgage — foreclosure-suability of purchaser. — The liability of a purchaser at mortgage foreclosure sale for taxes due on the land depends upon whether the taxes were due on the day of sale, not the day of confirmation of the sale; the mortgagor being liable for taxes due on the former date, and the purchaser for taxes subsequently due.
    Appeal from Nevada Chancery Court; James D. Shaver, Chancellor;
    reversed.

      McMillan £ McMillan, for 'appellants.
    The purchaser should pay the taxes. Crawford & Moses’ Digest, §§ 10023, 10056; 135 Ark. 279; 123 Ark. 18; 99 Ark. 324; 77 Ark. 216; 20 Cyc. 1362; 105 Ark. 261; 53 Ark. 110; 30 Ohio St. 436.

      Tompkins, McRae £ Tompkins, for appellees.
    The deed was not effective until confirmed. Crawford & Moses’ Digest, § 1512; 53 Ark. 445; 34 Ark. 346; 69 Ark. 119; 127 Ark. 153; Jones on Mortgages (7th ed.) 1661, 1666; 43 111. 327. The party receiving rents and profits must pay taxes. 12 Amer. L. Rep. 411.

      McMillan £ McMillan, for appellants, in reply.
    The deed dates from the date of sale. 99 Ark. 324; 135 Ark. 279; 77 Ark. 216; 137 Ark. 153; 27 Ark. 463; 16 R. C. L. § 106; 59 U. S. Rep. 540; 86 Ark. 258. •
   Humphreys, J.

This . suit was commenced in. the Nevada Chancery Court by appellees against appellants to recover a personal judgment against M. W. Greeson for $8,192.86, and to foreclose a mortgage lien on certain lands in said county given by Greeson and wife to secure same. Jas. G. Clark, who purchased Greeson’s equity in the land, was made a party defendant. A judgment and decree of foreclosure against the lands to satisfy same was obtained on the 7th day of October, 1921. Pursuant to the order of sale, the duly appointed commissioner, A. S. McGough, sold the land at public sale on December 3, 1921, at which sale Louis Suckle, being the highest bidder, purchased the land for $11,000. The sale was confirmed and the purchase money paid to the commissioner on April 6, 1922. Thereupon Jas. G. Clark and M. W. Greeson filed an intervention asking that, after paying the cost and amount due appellee, the surplus-be paid to Jas. G. Clark. The court denied the intervention in part, ordering that the surplus be paid to Clark after paying costs, the amount due appellee, and the taxes for the year 1921. From that part of the decree ordering the commissioner to pay the 1921 taxes on said land out of the proceeds of the sale appellants have duly prosecuted an appeal to this court.

Appellants contend that the court erred in ordering the taxes paid out of the proceeds of the sale. The sale occurred on December 3, 1921. On that date the taxes were not due and payable. It is true that the sale was not confirmed until April 6, 1921, but the date of sale, and not confirmation thereof, governs as to whether the purchaser or mortgagor at judicial sales shall be charged with the taxes. Under our statutes the mortgagor is chargeable with the State, county and municipal taxes due and payable' on the day the land is bid in, and the purchaser is chargeable with the taxes which become due and payable at a subsequent date. Miners Bank of Joplin v. Churchill, ante p. 191. The court erred in ordering the 1921 taxes paid out of the proceeds of the sale.

The decree is therefore reversed and the cause is remanded, with directions to enter judgment in favor of James G. Clark" for $421.27, with 6 per cent, interest from April 6,1922, same being the amount of the 1921 taxes.


text:
    Roberts v. Street Improvement District No. 2 of Morrilton.
    Opinion delivered December 11, 1922.
    1. Municipal corporations — inclusion of land in several improvement DISTRICTS. — Real estate may be included in more than one improvement district if it receives benefits from improvements being constructed in each district in which it is embraced.
    2. Evidence — parol evidence to contradict municipal records.— Under Crawford & Moses’ Dig., § 7694, requiring the city clerk to “keep a regular and correct journal of the proceedings of the council,” the record of the passage of an ordinance, duly proved, cannot be contradicted by parol- evidence.
    3. Municipal corporations — general and ' special acts. — Gen. Acts 1921, No. 395, -amending Crawford & M-o-ses’ Dig., § 5666, providing that a petition for a local improvement shall state what percentage of the value of the real property in -the district the improvement shall not exceed in cost did not repeal Sp. Act No. 39 of 1920, applying to the city of Morrilton, and providing that the commissioners of improvement districts therein might spend any amount necessary to complete the improvement, subject only to constitutional limitations.
    Appeal from Coirway Chancery Court; W. E. Atkinson, Chancellor;
    affirmed.

      M. H. Dean, for appellant.
    The demurrer should have been overruled because (1) the districts lapped; (2) proof as to the invalidity of the ordinance should have been heard, and (3) general act No. 395 repealed special act No. 39 approved Feb. 4. 1920. 102 Ark. 401; 102 Ark. 411; 103 Ark. 298; 75 N. E. 52; 82 Ark. 302; 88 Ark. 324.

      Gordon & Combs, for appellee.
    The demurrer was properly sustained. 140 Ark. 122; 141 Ark. 140; 94. Ark. 501, 502. Evidence is not admissible to contradict minutes of the city council. 201 Fed. 784; 89 S. E. 210; 190 N. E. 24; 138 N. W. 853; 189 S. W. 1117; 58 Atl. 900; 13 Allen 129; 26 Mich. 44; 182 S. W. 767; 66 Atl. 609; 36 N. Y. S'. 767; 355 W. 694; 14 S. E. 843; 144 N. W. 1097; 45 S. W. 626. The special act was not repealed. 144 Ark. 39; 4 Ark. 410; 150 Ark. 132; 72 Ark. 119; 125 Ark. 422; 142 Ark. 412.
   Humphreys, J.

This is an appeal from a decree of the chancery court of Conway County, dismissing appellant’s appeal attacking the validity of Street Improvement District No. 2 of the city of Morrilton, which was created by an ordinance passed after the enactment of special act 39 of the 1920 General Assembly and the passage of general act 395 of the 1921 General Assembly. The special act referred to authorized a greater cost for an improvement in the city of Morrilton, in improvement districts thereafter created, than twenty per cent, of the value of the real property in the district, as shown by the last county assessment. The general act referred to amended § 5666 of Crawford & Moses’ Digest so as to require the majority petition for the district to state the per cent, of the assessed valuation of the property in the district the commissioners may expend for the improvement. District No. 2, aforesaid, included a part of the territory embraced in Improvement District No. 1, theretofore organized in said city. The records of the city council show that, in the passage of the ordinance creating said District No. 2, two-thirds of the number composing the council dispensed with the rule requiring the ordinance to be fully and distinctly read on three different days, and, under a suspension of the rule, passed the ordinance to a second and third reading.

The bill attacked the validity of the district upon the following grounds:

First, because the two districts lapped.
Second, because appellant was not permitted to show by parol proof that the ordinance was passed without being read on three different days and without a suspension of the rule.
Third, because general act No. 395 repealed special act No. 39.

(1) This court has often ruled that real estate may be included in more than one improvement district if it receives benefits from improvements being constructed in each district in which embraced. Harrison v. Abington, 140 Ark. 115, and cases therein cited to this point.

(2) Section 7502 of Crawford & Moses’ Digest provides in part as follows: “All by-laws and ordinances of a general or permanent nature shall be fully and distinctly read on three different days, unless two-thirds of the members composing the council shall dispense with the rule.” Without deciding whether the ordinance creating said district is general or permanent in nature, we proceed to a determination of whether parol evidence is admissible to contradict the minutes of the council, which reflect that the ordinance was regularly-passed under a suspension of the rule. When the records are conceded or proved, showing the passage of an ordinance in accordance with law, we see no reason why the same credit should not be given them as is given to the record of legislative proceedings in the passage of statutes. Absolute credence is given to the record of legislative proceedings in the enactment of laws so as to give stability to government. To permit a contradiction of the records by parol evidence would bring about 'confusion and endless litigation, and destroy confidence in legislative acts. Butler v. Kavanaugh, 103 Ark. 109; Mechanics’ Building & Loan Association v. Coffman, 110 Ark. 269. Ordinances are passed under delegated legislative authority, and minutes or records of the proceedings are preserved. While courts do not judicially notice minutes of a city council, when proved, verity should be accorded them, else the ordinances passed by the council would.not re-ceive the confidence and sanction of the community. The regularity of the passage of an ordinance must loe governed by the record of the proceedings, and not by parol proof of the facts which took place on its passage. By statute it is made the duty of the city clerk of each city in this State “to keep.a regular and correct journal of the proceedings of the council.” Crawford & Moses’ Digest, § 7694. The general rule seems to be that where such a record is required to be kept it cannot be contradicted by parol evidence. The following are a small number of the many cases so holding: Dallas v. Beeman, 45 S. W. 626; Mayhew v. Gay Head District, 95 Mass. 129; Stevenson v. Bay City, 26 Mich. 44; Chippewa Bridge Company v. Durant, 122 Wis. 85; Belleville v. Miller, 257 Ill. 244; Dunn v. Cadiz, 140 Ky. 271.

(3) Special act No. 39 was in force and effect at the time general act 395, aforesaid, was passed. The special act applied to the city of Morrilton, and provides that in improvement districts organized therein the commissioners may expend any amount necessary to complete the improvement, subject, of course, to the constitutional limitation that the cost of the improvement cannot exceed the benefits to the property. The general act did not refer specifically to the special act, and amended § 5666 of Crawford & Moses’ Digest, which did not apply to or include the city of Morrilton. The city of Morrilton had been exempted from the section of the statute amended. The purpose of the general act was to amend a section of Crawford & Moses’ Digest so as to provide that the majority petition should state the per cent, of the assessed valuation of the property in the district the commissioners might expend to complete the improvement. It is true, the purpose of both acts was to enlarge the cost of respective improvements, one to a greater extent than the other, but the acts related to different territory, and hence were not repugnant to or inconsistent with each other. It was said in the cases of Jones v. Oldham, 109 Ark. 24, and State v. Adams, 142 Ark. 411, quoting from the syllabus, that “a general act does not repeal by implication a prior special act on the same subject -when the acts are not repugnant nor inconsistent. ” There is no reason why both acts cannot stand together, and there is nothing in the general act indicating that it was intended as a substitute for the special act, so the instant case is not ruled, as contended by appellant, by the cases of Western Union Telegraph Company v. State, 82 Ark. 302, and Hampton v. Hickey, 88 Ark. 324.

No error appearing, the decree is affirmed.


author: McCulloch, C. J.

text:
    Duren v. State.
    Opinion delivered December 18, 1922.
    1. Burglary — evidence op intent to commit felony. — In a prosecution for burglary, alleged to have been committed with intent to steal 50 cases of Coca Cola and 300 cases of soda pop, evidence merely that defendant reached his hand through a small hole in a window and picked up a bottle worth only a few cents, without any evidence showing an intention to remove a .considerable quantity of the bottles, held insufficient to sustain a conviction, it not appearing that the entry was for the purpose of committing a felony.
    2. Burglary — intent to commit felony. — In burglary prosecutions it is not essential that the State prove by direct evidence the intent to commit a felony, and such fact may generally be established by proof of circumstances, but the jury can draw only reasonable inferences in order to discover the intent of the burglar.
    Appeal from Scott Circuit Court; John Brizsolara, Judge; reversed.

      I. 'S. Simmons and Kincannon S Kmcaimon, for appellant.

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

Appellant, Aubrey Duren, was jointly indicted with Jack Searl by the grand jury of Scott County for the crime of burglary, alleged to have been committed by entering a building occupied by the Coca-.Cola Bottling Company, a corporation, with intent to steal fifty cases of Coca-Cola of the value of sixty-five dollars, and three hundred cases of soda pop of the value of two hundred and fifty dollars, all the property of said Coca-Cola Bottling Company, and, on separate trial, appellant was convicted and sentenced to the penitentiary.

The only assignment of error urged on this appeal is that the evidence is insufficient to support the verdict. The house alleged to have been burglarized is situated in the town of Mansfield, in Scott County, and was occupied by the Coca-Cola Bottling Company, a corporation, as a warehouse or place of storage for the commodities which it had for sale, towit: soda pop and Coca-Cola. The building was in charge of a Mr. Gilliam, an employee, who, according to the testimony, went out with a truck for delivering soda pop and Coca-Cola in the morning and usually returned in the afternoon. Gilliam testified that, when he returned to the warehouse on the evening of February 9, 1922, he discovered that a glass in one of the back windows was broken, and that, being impressed with the fact that the breaking had occurred with an unlawful purpose on the part of some person to enter the house,he decided to watch that night for the intruder, and did so. The witness did not state the size of the glass, but said that about one-third of it was broken out, and that the cases of soda pop and Coca-Cola were stacked up against the wall, extending up to the window, part of it in reach of any one standing on the outside. Nearly all the cases were unbroken, but a few of them were open cases. The soda pop was next to the window, and extended partially over the front of the window. The witness stated that he had not observed the broken glass in the window until that afternoon when he came back with the truck; that he usually examined the premises every day and was satisfied that if the window had been broken prior to that day he would have noticed it. He testified that he secreted himself in the building that night, and that about nine o’clock he heard voices on the outside, one person saying to another “You watch for me,” and that immediately a hand was extended through the broken glass and the person picked up a bottle of soda pop in his hand; that at that time he fired a shot at the intruder, who jerked his hand back through the glass and ran away. Witness went out then and discovered that Searl was the man who had reached through the window and picked up the bottle, and that appellant was the one who stood by.

Gilliam testified that some one had been there before and disturbed the cases, for he noticed that some of them had been turned around. He did not state that he missed any quantity, nor did lie state when he observed • -the previous disturbance of the property, but the inference is that it was about the time or immediately before the entry on this occasion.

Our conclusion is that the testimony is not sufficient to sustain the conviction, for the reason that it is not shown that the entry was for the purpose of committing a felony.

The statute defines burglary as “the unlawful entering a house * * * Avith intent to commit a felony.” Crawford & Moses’ Digest, § 2432, as amended by Acts of 1921, p. 69. The felony which was the subject of appellant’s intention in committing the crime as charged in the indictment was grand larceny, which is stealing, taking and carrying away personal property of another of more than ten dollars in value.

This court has decided that the offense of burglary is complete even though the intention to commit a felony is not consummated. Dodd v. State, 33 Ark. 517; Harvick v. State, 49 Ark. 514; Ragland v. State, 71 Ark. 65; Monk v. State, 105 Ark. 12; Birones v. State, 105 Ark. 82; Thomas v. State, 107 Ark. 469.

This rule has been extended in some of the cases cited above so as to hold that the offense is complete in the case of entry to commit grand larceny, even though it turns out that there was not sufficient property in the house to amount to ten dollars in value.

It is not our purpose in the present decision to recede in the least extent from the doctrine of those cases, but Ave think that the evidence in this case, giving it the highest probative force against the accused, is .not sufficient to warrant the inference that the entry of the house was for the purpose of stealing property of more than ten dollars in value.

The entry was accomplished merely by Searl thrusting his hand through a small hole in the broken glass in an attempt to take, not a case of soda pop or Coca-Cola, but to take one or more bottles. There was no apparent arrangement to remove from the building any considerable quantity of the commodity, nor is there any evidence at all of any preparations on the outside for carrying off a quantity of the stuff. The retail price of these bottles of soda pop and Coca-Cola is only a few cents, and it is entirely unreasonable to believe that the party who thrust his hand through the hole in the glass did .so with the intention of taking out enough of those bottles to amount to ten dollars in value.

It is not essential that the State prove by direct evidence an intention to commit a felony, for this fact may be, and generally is, established by proof of circumstances which indicate the intention of the burglar; but the jury can only draw reasonable inferences in order to discover the intent of the intruder, and it is not at all reasonable to say that there was any indicated intention in the present instance to take out any considerable quantity of the beverages mentioned above.

There' being- insufficient testimony to support the verdict, the judgment must be reversed. The cause will not be dismissed, inasmuch as the State may be able to produce other testimony indicating the intention of the parties in entering the house.

The judgment is therefore reversed, and the cause is remanded for a new trial.


text:
    Sheetz v. State.
    Opinion delivered December 18, 1922.
    Gaming — slot machine: — A slot machine is a “gambling device,” within Crawford & Moses’ Dig., §§ 2630, 2637, although the dial indicates what will be received on the immediate play but not what will be received on the next play, there being a chance of greater returns on the next play.
    Appeal from G-arland Circuit Court; Seott Wood, Judge;
    affirmed.

      Won. G. Bouie, for appellant.

      J. 8. Utley, Attorney General, Elbert Godwm and W. T. HaononO’eh, Assistants, for appellee.
   McCulloch, C. J.

Appellants have been maintain ing in the lobby of one of the hotels in the city of Hot Springs a slot-machine which deals out mint candy when a nickel is dropped into the slot, and the machine was impounded, under a warrant issued by the circuit judge, under authority of the statute which provides that the setting up or exhibition of ‘ ‘ any gambling table or gam bling device” shall be unlawful and punishable by fine, and that the circuit court may, on information, issue a warrant to a peace officer "directing in such warrant a search for such gaming tables or devices hereinbefore mentioned or referred to, and directing that, on finding any such, they shall be, publicly burned by the officer ex ecuting the warrant.” Crawford & Moses’ Digest, 2630-2637.

Upon the hearing of the matter before the' court, fi was adjudged that the machine in question was a gam bling device, and it was ordered destroyed, in accord anee with the provisions of the statute.

.Tt is admitted that appellants had been maintaining the slot-machine as charged, and the only question at issue is whether or not it constituted a gambling device within the meaning of the statute.

The machine was exhibited to the trial court at the time of the trial, and the only evidence adduced was that of appellant Sheetz, who testified concerning its operation. It appears from the description given by this witness that the machine is operated by the player dropping in a nickel, and there is a dial on the face of the machine which indicates upon each play what will be dealt out from the machine. The dial 'indicates upon each play that five cents’ worth of mints is to be dealt out to the player, but the machine is so constructed that at irregular intervals it will, in addition 'to five cents ’ worth of mints, deal out premium .checks, which may be used at a trading stand near by in the purchase of either mints, gum or cigars. The number of premium checks dealt out is not uniform; sometimes eight are given.on a play, and sometimes as many as twenty will be dealt out. ' The dial in either case, however, indicates before each play what is to be dealt out, whether only five cents’ worth of mints, or premium checks in addition. In other words, there is no uncertainty on any play as to what the player will get, and the only uncertainty is as to what will bo shown on the dial for the next or any subsequent play.

Appellant Sheetz testified that the scheme was merely a method of distributing to the players the profits earned by not being required to pay clerk hire. He contended that the machine was merely a vending machine in which the profits were, at irregular intervals, paid out to the purchasers.

We are of the opinion that the machine is a gambling device within the meaning of the statute. While there is no element of chance on any particular play, there is a chance as to what the opportunity will be for a subsequent play, and this is sufficient to render the transaction unlawful. It is fairly inferable from the testimony that the player has a preferential right to continue to play as long as he stands at the machine, and that he will have the right to take advantage of any subsequent offer on the dial to deal out premium checks in addition to the five cents’ worth of mints. This is undoubtedly an element of chance on what the future play will be, and constitutes gambling.

In Ruling Case Law (vol. 12, p. 729) the following general definition of unlawful slot-machines is given:

“In general, however, any slot-machine, regardless of its description, and although it is a mere automaton which keeps and runs itself, will be deemed to be an unlawful gambling device, where the one who plays the machine stands to win or lose money, trade cheeks or prizes, by a chance, or, more broadly, where there is an element of chaiice in its operation. And where the return to the player is dependent on an element of chance, the generally prevailing opinion seems to be that a slot-machine is a gambling device, even though the player is assured of his money’s worth of some commodity, and hence cannot lose. * * * Moreover, the added fact that a slot-machine which delivers an article worth the coin-deposited, and sometimes tickets for additional chances, also indicates before each transaction what will be delivered, does not prevent its being within the operation of a statute prohibiting gaming devices.”

Numerous cases are cited in support of this definitiou.

In the case of Ferguson v. State, 178 Ind. 568, there was involved the operation of a slot-machine which appears to be identical with the one involved in the present case, and the court held that it was an unlawful gambling device. In disposing of the matter, the court said:

‘-‘In the present case, the fact that the machine would indicate the reward before it was played makes, no difference. The inducement for each play was the chance that by that play the machine would be set to indicate that it would pay checks on the following play. The thing that attracted the player was the chance that ultimately he would receive something for nothing.”

The opinion in this case has been published and the subject, annotated in the note in Ann. Cas. 1915-C, p. 173, and in L. R. A. (N. S.) p. 720. In each instance the text- of the decision seems to be approved by the annotators.

There is still another case involving, apparently, a machine substantially identical with the one involved in' this case, and the court also held in that case that it was an unlawful gambling device. People v. Jenkins, 138 N. Y. Supp. 449. In that case the court said:

“The element of chance lies in the fact that, upon the turning of the lever and the deposit of the gum and number of checks indicated, there is further indication of how many trade checks, if any, may be obtained upon the dropping of the second nickel. The number of trade checks, however, which can be obtained upon the dropping of the second nickel is only indicated after the first nickel has dropped and the lever turned. Thus, in addition to the gum and the trade checks indicated as the certain receipts upon the dropping of the nickel, is given an option to obtain a package of gum and an uncertain number of trade checks upon the dropping of the second nickel. That this uncertain option has in it such an element of chance as constitutes gambling can hardly be questioned.”

The reasoning of the opinions in the cases just cited appeals to us as sound, and our conclusion is, as before stated, that a chance which provides for a final reward to the persistent player, so that he can take advantage of any premiums that may be 'afforded in addition to what he plays for, is such an element of chance as renders the transaction unlawful.

The judgment of the circuit court is therefore af- ' firmed.


author: Hart, J. (after Stating the facts).

text:
    St. Louis-San Francisco Railway Company v. Missouri Pacific Railroad Company.
    Opinion delivered December 11, 1922.
    Public service commissions — authority of railroad commission — Under Acts 1921, No. 124, creating the Railroad Commission, investing it with the powers previously exercised by the Corporation Commission and giving it jurisdiction in matters pertaining to the regulation and operation of railroads, and under Crawford & Moses’ Dig., § 1642, providing that every railroad company shall permit switch connections for interstate business to be made at its tracks at suitable and safe points by other carriers and shippers upon such terms and conditions as the Commission shall prescribe, the Railroad Commission has no judicial, function, and cannot determine the rights of two railroads under a contract relating to the joint use and maintenance of a wye track, such questions being for the court, though shippers had established warehouses on such track.
    Appeal from Pulaski Circuit Court, Second Division; Guy Fulh, Judge;
    reversed.
    STATEMENT Op PACTS.
    These proceedings originated before the Railroad Commission of Arkansas by a complaint filed by the Missouri Pacific Railroad Company against the St. Louis-San Francisco Railway Co.
    According to the allegations of the complaint, both the plaintiff and the defendant are engaged in operating a railroad in and through the town of IToxie, Ark. The Missouri Pacific Railroad Company is the successor of the St. Louis, Iron Mountain & Southern Railway Company, and the St. Louis-San Francisco Railway Com-pany is the successor of the Kansas City, Fort Scott & . Memphis Railroad Company. On September 27, 1895, the St. Louis, Iron Mountain & Southern Railway Company and the Kansas City, Fort Scott & Memphis Railway Company entered into an agreement for the use and maintenance of a wye track at Hoxie, Ark. The agreement, among other things, provided:
    “It is agreed between the parties hereto that, so long as the party of the first part shall use the wye tracks at Hoxie, Arkansas, the party of the first part shall maintain the south leg of said wye from the headblock on its main line to the heel of the frog at the intersection of said south wye with the main line of the Kansas City, Fort Scott & Memphis Railroad Company, as shown oh accompanying blue-print, which is made a part of this agreement; and that, so long as the party of the first part shall maintain the south leg of the said wye as aforesaid, it shall be entitled to use both legs of the wye, as well as necessary tracks to enable it to transport engines and cars from the south to the north leg of the Avye, or vice versa.!’

      Since that agreement was made the Plunkett-Jarrell Grocery Co., a wholesale dealer in groceries, and Goodwin & Jean, wholesale dealers in the poultry business, have located their warehouses on said wye track. Other industries have also been located on said wye track.
    In September, 1920, appellant, who was the defendant before the Railroad Commission, gave notice to appellee, the complainant before that body, of its intention to terminate the aforesaid agreement, and to prevent appellee from using said wye track, unless it paid to appellants such reasonable toll as might be agreed upon.
    The complaint further alleges that under § 5 of act No. 124, approved February 15, 1921, the Arkansas Railroad Commission is given jurisdiction over all matters relating to the regulation and operation of railroads.
    The prayer of the complaint is that appellant be required to answer the charges made, and that, after due hearing, an order be made commanding appellee to permit the existing arrangements with reference to the joint use of the wye track at Hoxie to continue in effect.
    Appellant filed an answer, denying all the material allegations of the complaint. The Plunkett-Jarrell Grocery Co. was allowed to file an intervention in the proceedings. A great volume of testimony was taken before the Arkansas Railroad Commission, which we do not deem it necessary to set out, to decide the issue between the parties to these proceedings. We deem it only necessary to state that the allegations contained in the complaint were proved, and much testimony was introduced tending to show that it would be to the advantage of the shippers to have the continued use of the wye track by both'railroads in the future, as had been done in the past. Most of the switching on the wye was done by appellee, because it kept and maintained a switch engine at Hoxie. All the switching that was done by appellant was done by the engines of its local freight trains. The shippers were not interested in the toll that should be paid by one carrier to the other for the use of the wye track, .but they were interested in having both railroads use the same in order that their facilities for receiving and delivering freight might be better. In other words, the shippers deemed it to be to their advantage for both railroads to continue to operate the wye as they had done, instead of leaving its operation to the appellant in the future.
    The Arkansas Eailroad Commission, after hearing the evidence, made the following order:
    “This.is an application on the part of the Missouri Pacific Eailroad Co. praying this Commission to make an order requiring the defendant, St. Louis-San Francisco Eailway Co., to continue the joint switching privileges over and upon its wye tracks in the town of Hoxie, Arkansas, under which for moré than 25 years the complainant has had privilege of operating its locomotives and cars for the delivery and receiving of freight to and from the public in Hoxie, the said privilege having been accorded by the predecessors in title and right of the St. Louis-San Francisco Eailway Co., and having been continued by the St. Louis-San Francisco Eailway Co. since it became the operator of this line of railroad and of the yards at Hoxie. That, under this privilege heretofore granted and used for a long period of time, the complainant, together with the St. Louis-San Francisco Eailway Company, became the joint owner of the freight depot and the stock pens located upon the property of the defendant in the town of Hoxie and approached by trains only over the wye tracks of the defendant.
    “The defendant on the 19th day of September, 1921, served notice on complainant that, on and after-the 12th day of November, 1921; the privilege of using the tracks of the defendant as aforesaid would be withdrawn and denied to the complainant.
    “Plunkett-Jarrell Grocer Co. files its intervention in this case, praying this Commission to make an order requiring the defendant to allow and permit the joint use-of its tracks in the yards of Hoxie, Arkansas, as the same has heretofore existed for a long period of time, hy complainant. After hearing the evidence introduced by the parties in this case, the Commission is of the opinion and finds that, to allow the defendant to discontinue the privilege heretofore accorded to the complainant would greatly inconvenience and discriminate against the shippers and public in this community served by complainant and defendant.
    “It is therefore by the Commission ordered that the defendant, St. Louis-San Francisco Eailway Co., be, and it is, ordered to permit and to continue the joint use of its tracks and yards at the town of Hoxie, Arkansas, by the ■ complainant, Missouri Pacific Eailroad Co., as the same has for a long period of time existed and been practiced by both complainant and defendant, until the further order of this Commission, or some court having jurisdiction of the parties and the subject-matter of this action.”
    Appellant duly prosecuted an appeal to the Pulaski Circuit Court, and that court confirmed the order of the Arkansas Eailroad Commission upon the evidence and pleadings before said Commission. Thereupon appellant duly prosecuted an appeal to this court.

      Moore, Smith, Moore & Trieber, for ’appellant.
    In making the order the Arkansas Eailroad Commission must have been seeking either to enforce specifically what it regarded as contract rights between the two railroad companies, or to act under its powers of regulation of railroads independently of the contract. In neither event did the Commission have power to make the order. It lias no judgment power to enforce contracts. Const. 1874, sec. 1, art. VII; 160 Pac. (Cal.) 830; Jones v. Cooper, 154 Ark. 308; 96’Atl. 1013; 192 S. ~W. (Mo.) 460; 226 S. W. (Ky.) 113. It has no regulatory power to make the order. The act of Congress of 1920, known as the “Transportation Act,” supersedes all power of the State over this subject. 233 IT. S. 681; 222 U. S. 424; 222 U. S. 378; 236 U. S. 439; 211 U. S. 612; 87 So. (Fla.) 778. The Commission had no such power under the act creating it. 94 N. E. 212-215; 47 So. (Fla.) 969; 91 Atl. 768; 19 Pac. 703. The order would deprive appellant of its property without compensation, and is void under II. S. Const., § 1, art. 14, and Ark. Const. §§ 21 and 22, art. 2; 195 U. S. 540; 212 U. S. 132; 217 U. S. 196; 62 S. E. (Va.) 369. Lewis on Eminent Domain, 3rd ed., § 423.

      Samp Jennings and Thos. B. Pryor, for appellee.
    It was not necessary for the Commission to exert judicial power to order the existing arrangements to continue until the matters in controversy could he settled in court. Property rights are not necessarily involved. It is a question of service to the community. The Commission was not bound by the petition, but had power to make such orders as the facts might require in order to enforce proper service. Jones v. Cooper is not in point. The Commission had power to make this order. Thomas-Bowman Cooperage Co. v. By. Co., 151 Ark. 589; also 104 Ark. 474; 95 Ark. 455 ; 99 Ark. 1. The Transportation Act does not apply to the facts here. Ridge Coal Mine Co. v. Rd. Co., I. C. C. Dec. June 17, 1921; 85 Ark. 284; 22 E. C. L. 793; 179 II. S. 287; 230 U. S. 352; 211 II. S. 612; 234 U. S. 412; 234 II. S. 280; 242 IT. S. 255. There was no attempt by the commission to adjudge the title' to the property. The order preserved the rig-hts of the parties in statu quo until determination of the controversy in a court of competent jurisdiction.

      Moore, Smith, Moore & Trieber, in reply; W. P. Evans and E. T. Miller, of counsel.
    The only tribunal possessing the power to make temporary orders for preserving rights in statu qv,o is a court of equity. The Transportation Act supersedes the act creating the Arkansas Eailroad Commission. The cases cited by appellee were decided prior to the passage of act and throw no light on the question.
   Hart, J. (after Stating the facts).

The Legislature of 1921 abolished the Arkansas Corporation Commission and created the Arkansas. Railroad Commission. General Acts of Arkansas 1921, p. 177.

Under § 2 of the act the Commission possesses all the powers and duties provided in the act and all such other powers as were possessed and exercised by the Railroad Commission of Arkansas of April 1,. 1919, and especially those set forth in secs. 1622-1652, inclusive, of Crawford & Moses’ Digest, and in addition thereto such other powers as were possessed by the Arkansas Corporation Commission.

Sec. 5 gives the Commission jurisdiction in all matters pertaining to the regulation and operation of railroads.

Sec. 1642 of Crawford & Moses’ Digest provides that every railroad company shall permit switch connections for intrastate business to be made with its tracks at suitable and safe points by other carriers or shippers, upon such terms and conditions as the Commission may prescribe, etc.

This brings us to a consideration of whether or not the pleadings and evidence make a case relating to the regulation of railroads or pertaining to switch connections by them, under the sections of the Digest just referred to.

It is conceded that the Arkansas Railroad Commission is an administrative body, and that it cannot exercise judicial powers. It is also conceded that its function, like that of the Interstate Commerce Commission, is to regulate public utilities and to- compel the enforcement of their duties to the public. Southern Pacific Co. v. Interstate Commerce Commission, 219 U. S. 433; Thomas Bowman Cooperage Co. v. Mo. & N. Ark. Rd. Co., 151 Ark. 589, and Jones v. Cooper, 154 Ark. 308. Hence the Arkansas Railroad Commission could not compel the railroads in this case to carry out their contract obligations to each other, if such was the effect of its order,

The Commission has no power to determine the rights of the parties hereto, under their contract, or to determine whether either of the railroads had a valid claim against the other under it. These are questions for the courts, and not for the Railroad Commission.

In the application of this well-settled rule to the facts as they appear from the record, we are of the opinion that the case presented is one calling for the construction of the contract between the two railroads and the enforcement of their fights thereunder, and not one calling for the regulatory power of the Commission as to switch connections between the two railroads, or enforcing their rights and duties to the public. This will be gathered from the pleadings filed, the evidence introduced, and the order of the Railroad Commission itself.

The complaint specifically sets out that part of the agreement between the railroad companies for their use of the wye track at Hoxie, Ark. It also alleges that the two railroads have used the wye track since the agreement in question under its provisions. The prayer of the complaint is that appellee be permitted the joint use of the track at Hoxie under the existing agreement. Much of the testimony of appellee is directed to the fact that the two railroads jointly used the track under the provisions of the contract set out in the complaint until the present controversy arose. The Railroad Commission made a specific finding to that effect. It ordered appellant to permit and to continue the joint use of its tracks and yards at the town of Hoxie by appellee, as the same had for a long period of time' existed and in practice by both parties, until the further order of the Commission or some court having jurisdiction in the ' premises.

The order shows on its face that it was an attempt by the Railroad Commission to determine the rights of the parties under the contract and to enforce the same by an order in the nature of an injunction. This the Railroad Commission had no power to do, and the circuit court erred in not holding its order void and of no effect. The parties to this controversy must submit their rights under the contract to the courts for construction and for the enforcement of the rights of the parties under it. The court having jurisdiction of the matter can, by appropriate orders, preserve the rights of the parties ■iii statu quo until the case is finally disposed of.

The fact that shippers have established their warehouses on the wye track adds nothing to the strength of the position assumed by the appellee. This fact cannot give it any additional rights under the contract. The rights of parties to a - contract cannot be determined by the convenience or inconvenience which may result to them or to the public from the enforcement of such contract.

We do not decide or express any opinion about the power of the Arkansas Railroad Commission to provide for switch connections for intrastate business at Hoxie, Ark., between the two railroads, independent of and disconnected with the contract in question.

For the error indicated, the judgment of the circuit court will be reversed and the cause remanded, with directions to the circuit court to quash the order of the Arkansas Railroad Commission, and for further proceedings according to law.


text:
    Southern Crawford Road Improvement District v. Brown.
    Opinion delivered December 18, 1922.
    1. Highways — validity op statute creating road district. — The act of Ex. Sess. of 1920, creating the Southern Crawford Road Improvement District, which included a portion of Road Improvement District, No. 5 of Crawford County, organized under the general statutes (Crawford and Moses’ Dig., § 5399 et seq.), was not invalid in so far as it imposed the cost of pre- . liminary work done in the old district and accepted by the new district as a charge against the new district.

      2. Highways — statute providing for assessment for preliminary work. — The act of the Ex. Sess. of 1920 creating the Southern Crawford Road Improvement District was not unconstitutional in providing that if the improvement was not made the preliminary expenses should be a first lien' upon all the land in the district, and should be paid by levying a tax upon the assessed vdlue for State and» county taxation.
    3. Highways — authority to construct macadam road. — The Act of Ex. Sess. of 1920, in authorizing the Southern Crawford Road Improvement District to make plans “for the improvement of such roads by grading, draining, rolling and otherwise improving them as in the judgment of said commissioners may be deemed best”, etc., authorized macadam surfacing.
    4. Constitutional law — delegation of legislative power. — The Act of the Ex. Sess. of 1920, authorizing the commissioners of the Southern Crawford Road Improvement District to determine the method and extent of improvement of the road described therein, was not a delegation of legislative power.
    5. Highways — money borrowed for preliminary expenses.— Where a road improvement project is not carried out because found to be too expensive, it was net error to allow the claim of a bank for money loaned to the Commissioners to pay preliminary expenses.
    Appeal from Crawford Chancery Court; J. V. Bour1cmd, Judge;
    reversed in part.

      C. M. Wofford, for appellants.
    Sec. 25 of act 235 Acts of special session of 1920 is constitutional, as is also sec. 29 of said act. The legis lative determination of benefits is conclusive.

      Starbird & Btarbird, for appellees. •
    The commissioners have no power other than that conferred by statute. 115 Ark. 96. The words “otherwise improve” limited the power of the commissioner to other improvements of the general class of those named. 36 Cye. 1119; 73 Ark. 602; 95 Ark. 114. Those contracting with the commissioners are bound to take notice of the extent of their authority.

      C. M. Wofford, Coleman, Robinson & Rouse and Daily S Woods, for appellants, in reply.
    The entire class of improvements was exhausted by the kinds named. The commissioners had full power to enter into the contracts. 36 Cyc. 1119; 123 Ark. 68; 147 Ark. 80.'
   McCulloch, C. J.

A road improvement district was organized in Crawford County under .the general statutes (Crawford & Moses’ Digest, § 5399 et seq.), designated as Road Improvement District No. 5 of Crawford County, for the improvement of certain roads, and some of the preliminary work preparatory to constructing the roads was performed, but before the construction work was begun the General Assembly, at the extraordinary session in January, 1920, enacted a special statute creating a road improvement district designated as Southern Crawford Road Improvement District of Crawford County for the improvement of certain roads, which included a portion of the road authorized by District No. 5.

Section 29 of the statute just referred to reads-as follows:

“Road Improvement District No. 5 of Crawford County is hereby abolished. It is ascertained and hereby declared that the preliminary work of said district is worth to the district hereby created the amount of the cost thereof, and the district hereby created will pay the indebtedness of said Road Improvement District No. 5, not to exceed five thousand dollars.”

Another section of the statute (sec. 25) reads as follows :

“In case, for any reason, the improvement contemplated by the district is not made, the preliminary expenses shall be a first lien upon all the land in the district, and shall be paid by a levy of a tax thereon upon the assessed value for county and State taxation, which levy shall be made by the chancery court of Crawford County, and shall be collected by a receiver to be appointed by the court.”

The commissioners of the new district created by the special statute proceeded with the preliminary work and adopted some of the preliminary expenses incurred for District No. 5, principally for engineering expenses in making preliminary surveys and preparing plans, the value of which was ascertained in the present litigation to be the sum of $4,609.90. An assessment of benefits was duly made by the assessors, in accordance with the terms of the statute, and filed, but it was ascertained from the assessments that it was impracticable to construct the improvement, by reason of the excessive cost, and the commissioners filed a complaint in the chancery court of Crawford County, in accordance with § 25 of the statute creating the district, for the purpose of winding up the affairs of the district and paying the preliminary expenses.

Those holding claims against the district for preliminary work filed their respective claims with the court. These included the claims of the engineers and others who had performed preliminary work for the district.

During the progress of the preliminary work, certificates of indebtedness were issued to the engineers for services performed, and these certificates were assigned to other parties, who also intervened as claimants.

The commissioners borrowed $8,000 from a banking institution for use in the payment of preliminary expenses, and it was so used, and that institution also intervened for an allowance of its claim.

Appellees, who were the owners of real property in the district, intervened and not only contested the claims of those who had performed work, but also at-, tacked the constitutionality of the two sections of the statute quoted above. On final hearing the court decided that both of the above-quoted sections of the statute were unconstitutional and void, and made a finding as to the amounts to which the claimants for the value of preliminary work were entitled on a quantum meruit, and also for the amount of money borrowed for use in preliminary work, -and decreed the same as .charges against appellant district, and ordered a levy upon the assessed benefits, and not upon the assessed value for State and county taxation, as provided in sec. 25 of the statute. The court allowed the claimants less than the amounts of their claims, but they have not appealed.

The district appeals from that portion of the decree which declares the sections of the statute referred to unconstitutional and disallows the claims for expenses incurred by the old district; and the interveners (appellees) appealed from that portion of the decree which adjudged the payment of the other preliminary expenses.

The court erred in its decision declaring unconstitutional and void the sections of the statute referred to above, and in disallowing expenses incurred by the old district.

The effect of § 29 was to constitute the new district, in part, a successor to the old district for the purpose of constructing a portion of the same improvement, and it was not beyond the legislative authority to impose the cost of the preliminary work theretofore done in the old district and accepted by the new district as a charge against the new district. The statute constituted a legislative determination that the new district would receive benefit from the preliminary work done in the old district, which was abolished by the statute, and there is nothing to show that this determination was arbitrary. There is no dispute as to the value of the work done for the old district nor that the new district was benefited by the part of the work which was accepted.

The question of the validity of § 25, providing for the method of imposing assessments for preliminary work in case the purposes of the district failed and the contemplated improvement was abandoned, falls within the decision of this court in Neterer v. Dickinson & Watkins, 153 Ark. 5, where we held that it was within the power of the Legislature to provide for the payment of preliminary expenses by assessments on the lands of the district in proportion to the assessment for general taxation purposes.

This conclusion calls for a reversal of the decree on the appeal of the district.

Appellees contend on their appeal that the preliminary expenses incurred for engineering and other purposes were void because the work was not done within the scope authorized by the statute. Section 3 of the statute provided that the commissioners should make plans “for the improvement of such roads by grading, draining, rolling and otherwise improving them as, in the judgment of said commissioners, may'be deemed best, and by the building of such bridges and culverts as they found essential.” The preliminary plans for engineering work called for forty miles of macadam road and forty-eight miles of dirt road, and the contention of appellees is that the statute did not authorize macadam surfacing, but only authorized “grading, draining, rolling.”, Wé are of the opinion that this contention is unfounded, for the statute clearly committed to the commissioners the authority to determine the method and extent' of improving the roads described, and this was not an improper delegation of authority. It was not a delegation of legislative power, but it merely conferred upon the commissioners the authority to determine the extent to which the roads should be improved. Nall v. Kelley, 120 Ark. 277.

There is no attack made upon the findings of the court as to the proper amounts of the claims, and the only contention is, as above stated, that the expenses Avere incurred by the district Avhile attempting to provide for improvement in excess of the authority conferred by the statute. It is contended, however, that the court erred in allowing the claim of the bank for borrowed money used in preliminary expenses. It is proved, and not disputed, that this money was borrowed for the purpose of paying preliminary expenses and Avas used for that purpose. We have decided that, under similar circumstances, the lender of money is entitled to an allowance against a defunct district. Gould v. Sanford, 155 Ark. 304.

The portions of the decree from which appellees have prosecuted an appeal are therefore affirmed, hut, as before stated, that portion of the decree which declares the sections of the statute to be void and disallows claims for preliminary expenses incurred by the old district is reversed, and the cause is remanded, with directions to enter a decree in accordance with this opinion.


author: McCullooh, C. J.

text:
    Miller v. Seymour.
    Opinion delivered December 18, 1922.
    1. Municipal corporations — improvement districts — annexation of contiguous territory. — Where a street improvement district, created under Crawford & Moses’ Dig., § 5647 et seq., included all lands one-half block in width on both sides of the street to be improved, the annexation to the district of all lands one-half block in width on both sides of an intersecting street for the improvement of the intersecting street is not void because the two half blocks at the intersection of the two streets are included in the original district as well as in the annexed territory, as the property in question may be benefited both by inclusion in the original district and by the annexation of the contiguous property on -the intersecting street.
    2. Municipal corporations — improvement district — assessment of benefits. — Where a portion of a street improvement district was included in territory annexed to such district, the fact that some of the property was included both in the original district and in the annexed territory and is physically affected by both improvements may be considered in assessing the benefits.
    Appeal from Jefferson Chancery Court; John M. Elliott, Chancellor;
    affirmed.

      Rowell & Alexander, for appellants.
    The city council had no power , to annex to the original district property within the bounds of the original district. The word “contiguous” does not include such lands. 64 Ark. 7; 54 Ark. 321; 54 Ark. 335; Black’s Law Die.

      Coleman é Gantt, for appellees
    The annexation was under authority of § 5733, C. & M. Dig. The word “contiguous” would apply to this land. 130 111. 566; 25 R. C. L. 113; 196 Pac. 481; 70 Ark. 451; 1 C. J. 1195; 13 C. J. 110; 54 Ark. 321; 54 Ark. 335; 52 N. W. 951; 80 Atl. 28; 55 Hed. 993; 101 N. Y. S. 367; 64 Ark. 7; 70 Ark. 451; 130 N. W. 246; 158 111. 64; 143 111. 92; 249 111. 260.
   McCullooh, C. J.

A local improvement district has been created in accordance with general statutes (Crawford & Moses’ Digest, § 5647 et seq., in the city of Pine Bluff, to improve Pine Street from Harding Avenue on the south to Martin Street on the north, and said improvement is under way. The district included all real property one-half block in width on both sides of-Pine Street the full length of the proposed improvement.

Thirteenth Avenue intersects Pine Street at right angles betwen Harding Avenue and Martin Street, and the city council passed an ordinance annexing certain territory to the original district for the purpose of improving Thirteenth Avenue from Pine Street to Olive Street. This was done on petition of a majority in value of the owners of real property in the annexed territory, pursuant to the terms of the statute, which provides that when “a majority in value of the owners of real property in any territory contiguous to any improvement district in any city or town desire that said territory shall be annexed to such improvement district, they may present their petition in writing to the city or town council, and the council shall, after notice,” etc., pass an ordinance annexing such territory, and “the improvement petitioned for shall be made by the commissioners. ’-’ Crawford & Moses’ Digest, § 5733.

The annexed territory included all real property one-half block in width on both sides of Thirteentli Avenue the full length of' the proposed-additional improvement. It is -thus seen that the two quarter-blocks at the intersection of Pine Street and Thirteenth Averme are included in the original district as well as in the annexed territory, and the point of the present controversy is that this is in contravention of the statute, which provides only for the annexation of territory “contiguous” to the original district. Appellant owns real property included in the annexed territory, and he challenges the validity of the annexation on the ground that the proceeding is not in accordance with the terms of the statute. His contention is that the two quarter blocks described above are not “contiguous” to the original district, being in fact embraced within that district.

This contention involves, we think, too narrow an interpretation of the statute, the purpose of which was, manifestly, to provide for annexation of all territory physically affected by the proposed additional improvement. The territory is annexed as á whole, and any property affected by the additional improvement, which must, of course, be connected with the original improvement, is “contiguous” within the meaning of the statute, even though it is within the original district. In other words, the same property may be affected by both improvements, and may, for that reason, be included in the annexed territory as well as in the original district. The overlapping of the annexed territory and the original district is not in contravention of the terms of the statute. Conceding that this is not within the dictionary meaning of the word “contiguous,” it is clearly within the meaning of the language of the statute when considered as a whole.

The annexation of territory is tantamount to the creation of a new district without the imposition of new burdens on the original district, or the assumption of any burdens on the annexed territory for the cost of the original improvement, and property affected by both improvements may be embraced legally in both creations. White v. Loughborough, 125 Ark. 57; Bahlau v. Bloom, 154 Ark. 349.

This controversy does not involve the amount of any assessments on annexed territory. Of course, the fact that some of the property is overlapped ■ by the original district and the annexed territory and is physically affected by both improvements, may be considered in assessing the benefits. McDonnell v. Improvement District, 97 Ark. 334.

This disposes of the only question in the case in accordance with the decision of the lower court, and the decree is therefore affirmed.


author: Wood, J.

text:
    Newberry v. Road Improvement District Number 1.
    Opinion delivered December 18, 1922.
    1. Appeal and error — appellants concluded by their brief. — On appeal from a decree dismissing a complaint by property owners, alleging the invalidity of a tax levy for the payment of bonds issued for the construction of a road in violation of a temporary restraining order, a statement in plaintiff’s brief on their appeal that the temporary restraining order was dissolved by a subsequent decree will be treated as true.
    2. Highways — complaint to enjoin collection of taxes. — Where a temporary restraining order enjoining the issuance and sale of bonds for the construction of a certain road was subsequently dissolved, a subsequent complaint by property owners to restrain the collection of taxes for the purpose of paying bonds issued for the construction of such road in alleged violation of such order was properly dismissed for want of equity.
    3. Highways — injunction against collection of assessments.— Under a special act providing that no assessment of benefits in a certain district shall be made or levied, nor any contract let or bond sold without the consent of a majority of the property owners affected in number, acreage and value,, property owners in such district are not entitled to enjoin the collection of such assessments as having been made without consent of the property owners where there was no allegation in the complaint to that effect.
    4. Appeal — final order. — An appeal from an order restraining a road improvement district and its officers from paying out funds collected from landowners to pay bonds issued for the construction of a road' “until the further orders of this court, and the cause as to that feature is hereby continued,” will not lie, such order not being final. -
    Appeal from Greene Chancery Court; Archer Wheatley, Chancellor;
    affirmed.

      Fuhr é Futrell, for appellants.
    The district lias, in substance, violated the decree enjoining construction of part of the proposed road and the sale of the bonds. No levy or assessment can be made unless for the entire improvement. Act 680, Acts of 1921, went into effect before dissolution of the injunction.

      D. G. Beauchamp, for appellees.
    The validity of the district is settled by 145 Ark. 87. Sec. 12, act 680, Acts of 1921, does not apply to this district where the majority in value, acreage.and landowners petitioned the county court that the road be made.
   Wood, J.

This is an action brought by the appellants against the appellees. The appellants, after alleging that they are property owners, and setting out a description of the property and the amount of taxes paid by them, respectively, to the collector, further allege that Road District No. 1 of Greene County was created under the Alexander road law, act 338 of the Acts of 1915; that on April 14, 1920, District No. 1 and its commissioners were enjoined by decree of the chancery court from constructing or letting any contract for the construction of any part of the road proposed by the plans of the district from Light, Arkansas, to Rhea Bridge, Arkansas, and from issuing, selling, or delivering bonds for that purpose; that, in violation of such decree, the defendants purported to file with the county clerk of Greene County a tax levy for the purpose of extending against all assessed benefits in said district a tax sufficient to pay interest and principal of an $80,000 bond issue for the purpose of constructing the purported improvements in the district, including the road from Light to Rhea Bridge. The appellants alleged that the tax levy was void for the following reasons:

1. The plans of said district on which said purported assessments were based were null and void and of no effect, being plans for the construction of a road including the road from Light to Rhea Bridge.

2. ' The assessment of benefits against which said tax was levied was null and void because the same was based on illegal plans.

3. Said tax was made and collected for the purpose of paying interest and principal on 15 annual installments on an $80,000 bond issue covering all lands in said district, based on void plans and on void assessments.

4. Said tax levy was for the purpose of paying interest and principal on a bond issue which this honorable court enjoined said district from selling, and which, under present conditions, can never be sold and marketed.

5. Said tax levy is illegal and void for the reason that said district is enjoined from making the improvements contemplated by the plans of the district; and for the further reason that said plans are unlawful, void, and incapable of being- carried out.

The appellants further set up that the collector of Greene County had paid a part of the money collected from them to the treasurer of the county, and that the treasurer was about to pay over the same to the commissioners ; that the district had sold no bonds, owed no interest, and had let no construction 'contracts, and therefore had no need of the money collected from the appellants; that the commissioners contemplated paying out the money on illegal claims and indebtedness. The appellants further set up that the illegal tax was extended against their lands for a period of fifteen years, and that it constituted a cloud on their title, which should be canceled and set aside. The prayer of the complaint was that the collector and treasurer be restrained from paying the money to the commissioners of the district and required to refund to appellants the taxes already paid, and, that the collector be restrained from collecting any future installments levied against appellants’ lands; that the county clerk be enjoined from further extending any levies upon the tax-books, and that the order levying the taxes and extending the same on appellants’ lands be declared null and void.

Attached to the complaint was an exhibit containing the complaint in the case of Sulf v. Road Dist. No. 1, and its commissioners and its exhibits. This complaint set up that the act creating the Tri-County Highway Improvement District provided for the construction of a highway from Harrisburg to Jonesboro via Light and Rhea Bridge; that the Tri-County District had the right to build that part of the road from Light to Rhea Bridge, and that District No. 1 was thereby deprived of that right; that District No. 1 could not carry out its plans to build the roads petitioned for, and therefore could not build the road between Light and Walcott, and prayed that the commissioners be enjoined from issuing and selling bonds and letting contracts to carry out its plans. Among the exhibits was an order of the county court establishing Road Improvement District No. 1 of Greene County, Arkansas, May 28, 1919, after the original order establishing the district had been declared null and void by the Supreme Court on March 24, 1919, in the case of Light v. Self, 138 Ark. 221. This order of the county court described the boundaries of the district, the route of the road, and shows the route to be the identical one described in the case of Light v. Self, supra.

Another exhibit was the decree of the chancery court rendered on the 14th day of April, 1920, which provides in part as follows:

“It is therefore considered, ordered and adjudged by the court that the complaint of plaintiffs, so far as the complaint of plaintiffs seeks to invalidate Road Improvement District No. One of Greene County, Arkansas, is dismissed for want of equity, and that the defendants be enjoined, until the further orders of this court, from constructing or letting any contract for the construction of any part of the road proposed by the plans of defendant district from Light, Arkansas, to Rhea Bridge, until the further orders of this court; that the defendants be enjoined, until the further orders of this court, from issuing, selling or delivering any bonds of said district for the purpose of constructing that part of its proposed road from Rhea Bridge to Light, Arkansas.”

Another exhibit is a resolution of the commissioners of the Road District No. 1 providing that the local assessments shall be paid in successive annual installments of $9,030 each from the year 1921 to the year 1935, and showing an application to the county court for a bond issue in the sum of $80,000, the last issue to become due June 1, 1935. Following this is an application for the levy of taxes and authorizing the issuance of bonds entered August 23, 1920, and an order making ,W. L. Gage and Ben Noblins parties plaintiff.

The appellees entered a general demurrer to the complaint. The court sustained the demurrer in all things except the paying out of the funds arising from the taxes paid by the appellants, and'entered a decree that the “defendants be restrained from paying out any of the funds collected by defendants from the plaintiffs on the lands herein described until the further orders of this court, and the cause as to that feature is hereby continued.” In all other respects the decree dismissed the complaint for want of equity. From this decree both pax*ties have appealed.

1. The facts alleged in the appellants’ complaint show that the appellees were proceeding in the acts s-oecificallv set forth in the complaint in violation of the decree of the chancery court rendered Anril 14, 1920. There is no allegation in the complaint itself that the decree of April 14, 1920, ivas but a temoorax-y injunction agaixxst the appellees from’ proceeding to do the acts of which the appellants here complain. But the recitals of the decree of April 14, 1920, which may be looked to to explain the allegations of the complaint, show that that decree was but a temporary restraining order, and, while there are no allegations in the complaint to the effect that thé temporary injunction ordered by the decree of April 14, .1920, was dissolved by the decree of the court entered at the November term, 1921, yet counsel for the appellants state in their brief that the injunction obtained under the decree ■ of April 14, 1920, was dissolved. As it devolves upon the appellants to show that there was érror in the decree of the court, we must treat the statement of counsel for appellants as true, that the temporary restraining order of April 14, 1920, was dissolved by subsequent decree of the court. The effect of the dissolution of the temporary restraining order obtained under the decree of April 14, 1920, was to set aside all restrictions that had been placed upon appellee District No. 1 and its officers by the temporary injunction, and whatever they had done towards completing the improvements contemplated by the creation of the district was as legal and effective as though the temporary restraining order of April 14, 1920, had never been decreed. In other words, if the temporary restraining order of April 14, 1920, was dissolved by the subsequent decree of November, 1921, then all the acts of the appellees which the appellants alleged in its complaint were in violation of the temporary restraining order of April 14, 1920, must be treated as though such temporary restraining order had never been issued, and were not, therefore, in violation of the decree of April 14, 1920, as alleged in appellants’ complaint.

It occurs to us that the allegations of the complaint, taken as a whole, show that the appellants were seeking to enjoin the collector and treasurer from paying over money in their hands to the commissioners of the district, and the collector from collecting future installments, and the county clerk from extending future installments of taxes, all because the taxes had been levied in violation of the decree of April 14, 1920. As this decree'was but temporary and has, according to the statement of counsel for appellants, been dissolved, it is manifest that appellants have failed to show that the court erred in sustaining the demurrer and in dismissing the complaint for want of equity.

But the appellants contend that, under the allegations of the complaint, they are entitled to the relief sought under section 12 of act 680 of the Acts of 1921. That section is as follows: “Sec. 12. That no road or highway within that part of the- territory of the TriCounty Highway Improvement District created by act No. 186, approved March 6, 1919, as amended by act No.' 61, approved February 5, 1920, in Greene County, shall be built, constructed or repaired by or through the agency or means of an improvement district either now in existence or which may hereafter be created; and no assessment of benefits shall be made or levied or any contract let, or bond sold, for such purpose, without the consent, previously obtained, of a majority of the owners of real property affected, in number, acreage and value.” Counsel for appellants say: “It will be seen, by reference to the act creating the Tri-County District showing the lands embraced in Greene County, that it embraced territory one mile east of Light in the direction of Walcott, so this section 12, referred to, denies the right to build any part of the road laid out by the district, commencing one mile east of Light and extending west to Rhea Bridge, without first obtaining the consent of a majority of the property owners in number, acreage and value, who- reside in the old Tri-County District, whose property is affected thereby.”

In answer to appellants’ contention, it suffices to say that the cause here was heard upon demurrer, and the facts pleaded in the complaint are not sufficient to entitle the appellants to the relief prayed under section 12 of act 680, supra, even if that section were applicable, which we do not feel called upon to decide. There is no allegation in the complaint that the assessment of benefits was made, taxes levied, or any contract.let or bonds sold for constructing a road between Light and Rhea Bridge without the consent of a majority in number, acreage and value of the owners of real property affected by the construction of such road.

The appellees undertake to appeal from the order of the court prohibiting the appellee district and its officers from paying out any of the funds collected from the appellants. Upon examination of the recitals of the decree we discover that this was not a final order. Therefore an appeal from such order will not lie.

The decree of the trial court is in all things correct, and it is affirmed.