author: Mehaffy, J. Smith, J.,

text:
    St. Louis-San Francisco Railway Company v. State.
    Opinion delivered September 30, 1929.

      E. T. Miller, E. L. Westbrooke, Jr.,, and E. L. West-brooke foír St. L.-íS. F. E. Co., appellant; Thomas B. Pryor and E. L. Ponder for Mo. Pac. Ed. Co., appellant.

      Hal L. Norwood, Attorney 'General, and Pat Mehaffy, Assistant, Hugh Williamson, Pace & Davis and Tom W. Campbell, of counsel, for appellee.
   Mehaffy, J.

On the 30th day of January, 1929, the prosecuting attorney for the Third Judicial District of Arkansas filed before two justices of the peace in the Eastern District of Lawrence County four hundred in-formations ; two hundred against the St. Louis-'San Francisco Eailway Company before Justice of the Peace W. Story, and two hundred against the Missouri Pacific before Justice of the Peace J. F. Israel.

All informations are alike, except as to date upon which the offenses charged were alleged to have been committed, and each information contained the allegation that the defendant unlawfully, knowingly and willfully failed, refused and neglected to comply with a certain finding, order, decree and mandate of the Arkansas Eailroad 'Commission requiring the railroad company to construct and erect sheds over the platform of its depot at Hoxie, Arkansas, in said district and county, and described as umbrella standard sheds, to be 250 feet long and having a spread of 12 feet, and to be located so as to accommodate passengers- boarding and alighting from trains, and defendants failed, refused and neglected, in the alternative, to construct and erect one shed of the dimensions aforesaid, to provide adequate protection to passengers boarding- and alig’Ming from trains in any direction after said Arkansas Railroad Commission had, by its order in case No. 517, when said matter was properly and legally before said Arkansas Railroad Commission on the 2d day of February, 1920, ordered the said defendant companies, within 45 days after the entry of said order, to erect and construct said sheds, contrary to the statute in such cases made and provided, etc. There was a second count in each information against the defendants for failure to stop its trains at the depot at Hoxie. The court, however, treated this second count as surplusage.

Neither of the defendants appeared in justice court, and there was a .judgment for $26 in each case, a total fine of $5,000 against each defendant, with costs.

Each defendant appealed to the circuit court, where the cases were tried and the judgments of the justice of the peace courts affirmed.

In the justice courts all the cases against the Missouri Pacific Railroad 'Company were consolidated and all the cases against the San Francisco Railway Company were consolidated, and then all the cases against both roads were tried together, and were also tried in the same manner in the circuit court.

On the 1st day of November, 1925, a petition signed by citizens, as required iby,the statute, was filed against each appellant with the Railroad Coinmission. Notice was served on each railroad company that the Arkansas Railroad Commission would hold a special meeting in the city of Hoxie on Friday, December 4, 1925, for the purpose of taking up for consideration the petition of citizens requesting that the railroad companies be required to erect sheds over the platform at Hoxie, and notified the companies that the commission would take such action with reference to- said petition as mig-ht appear just and necessary. Bioth appellants were not only notified but were present, and each filed answer, and resisted the application for an order of the Railroad Commission. Testimony was taken, and, after the testimony was taken, an order was made hy the Railroad Commission requiring the railroad companies ‘to build sheds.

The appellants appealed to the circuit court of Pulaski County, where the order of the Railroad Commission was affirmed. The order of the circuit court, as found at page 763 of 176 Arkansas, is as follows:

“The two railroads intersect at Ploxie, and pas-' sengers leave the train of each railroad ¡before the train crosses the track of the other, or reaches the station. Consequently passengers going to and from the station to the trains are of necessity required to walk quite a distance. Under the circumstances of this peculiar case, in the opinion of this court, the order of the Arkansas Railroad Commission does not appear unreasonable or arbitrary. It is claimed that the construction of sheds at EEoxie would require an unreasonable outlay hy the railroads, considering the results to be obtained. The matter of expense is to be determined by the railroad companies on the approval of the Railroad Commission. Considering the whole case, this court is of the opinion that the order of the Arkansas Railroad Commission is not arbitrary or unreasonable, and will therefore be affirmed.” St. L. S. F. R. Co. v. Albright, 176 Ark. 761, 4 S. W. (2d) 910.

Prom the judgment in the circuit court both appellants prosecuted an appeal, and the case was affirmed by this court on the 26th day of March, 1928.

In the present case the State introduced the order of the Railroad Commission requiring the companies to build sheds, and also introduced the secretary of the commission and one of the commissioners.

As we have already said, the case was appealed to the circuit court, where the judgment of the justice of the peace was affirmed, and this appeal is prosecuted to reverse the judgment of the circuit court.

At the conclusion of the testimony in the circuit court, the appellants moved a dismissal of the causes for the reason that § 1640 of 'Crawford & Moses’ Digest had not fbeen complied with. That section reads as follows:

“Filing copies of findings. The -Corporation Railroad Commission shall file a copy of their findings and decree with the -Secretary of State, the Attorney General, the circuit clerk of the county wherein such decree is granted, and shall serve notice upon defendant railroad company by delivering a copy of its findings and decrees to the nearest local station agent, and by sending by registered mail a copy to- the superintendent, -general manager, lessee or operator of such railroad or railroad company.”

It is insisted that, until this section requiring the Railroad Commission to file a copy of its findings and decree, is complied with as provided in said section, the order of the Railroad Commission could not become effective.

Section 1638 of Crawford & Moses ’ Digest provides for petitions. Section 1639 provides for inspections. It requires the Corporation Commission to make personal inspection of conditions, make investigation, take testimony, and provides that the findings of the commission shall be binding* upon all railroads within the State of Arkansas. Then -follows the section above quoted.

The Railroad Commission, under § 1639 of Crawford & Moses’ Digest, can make the inspection and investigation, make its findings, and file them as above mentioned, without giving any notice to anybody. If it does that, of course it would then have to give notice to the railroad company of what it had done. But the sections referred to by appellant, requiring the commission to file a copy of its findings, are wholly unnecessary in this case-, because, instead of making the investigation' and filing copies, the Railroad Commission had a hearing, at which both appellants were present and participated in the trial or hearing.

Section 1641, providing a penalty for violation of the order of the commission, contains this proviso: “provided, no order for doing anything hereinabove provided shall be made by snch commission until all parties concerned shall have received ten days’ notice of snch proposed change.”

It is undisputed that the appellants had the ten days ’ notice. There is no controversy about that. They not only had the notice, but they were present, as we have said, and defended, and both sides introduced evidence. When there was a finding against them, they appealed to the circuit court, and then to this court, where the judgment of the circuit court was affirmed.

Appellant calls attention to and relies on a statement in 20 R. C. L., 343. In § 6 of the same article in R. C. L. and in the same volume, following the section quoted by appellant, is the following: ‘Generally a person can be said to have notice of a fact only when it is actually communicated to him in such a way that his mind could and did take cognizance of it. And of course, when a person knows of a thing he has ‘notice’ thereof, as no one needs notice of what he already knows. While extrajudicial proceedings, or proceedings without jurisdiction, do not operate as constructive notice, yet express notice obtained from such proceedings operates the same as notice obtained in any other manner.”

In 21 R. 'C. L., under the head of “Process,” the questions of the nature, issuance, requisites and validity of the process are discussed, and, among other things, it is stated on page 1263: “But notice is for the sole benefit of the defendant to afford him an opportunity of being heard on the claim or the charges made against him. It is not required for the protection of the plaintiff. Moreover, a party may waive his right to have a suit begun against him by process, and he does so by making a voluntary appearance, or by authorizing another to appear for him.”

The only purpose of the sections of the statute relied on by appellants is to give the appellants notice so that they may have a hearing. And the proof in this case shows not only that they had notice, but that they were both present, participated in the hearing, introduced evidence, and could not have been prejudiced in any way. T'he appellants in this case have no' right to insist on filing the papers with the Attorney General, Secretary of State, and circuit clerk. They had a right to notice and hearing-; an opportunity to be heard in court. See Ghriest v. Railroad Commission of California, 170 Cal. 63, 148 Pacific 195; Seward v. Ry. Co., 17 N. M. 557, 131 Pac. 980; Miami v. Corporation Commission, 95 Okla. 57, 219 Pac. 126; Lane v. Levinson, 91 Maine 292, 39 Atl. 999; Dist. of Columbia v. Moulton, 182 U. S. 576, 21 S. Ct. 840; Hammond v. Gilmore, 14 Conn. 479.

It is next contended by the appellants that the statute under which the informations were filed is highly penal in its nature, and that this court, in 125 Ark. 45, 187 S. W. 1064, said: ‘ ‘ Courts have always been opposed to the enforcement of penalties except to the extent necessary to secure the manifest object of their infliction. For this reason penal statutes are construed strictly.’'

The manifest object of the infliction of the penalty here, or the manifest object in making the order of the Railroad Commission, was to compel the railroad companies to provide sheds for the protection of passengers. And, although proceedings to force the railroad companies to do this were 'begun in December, 1925, and the decision of this court affirming the Railroad Commission was March 26, 1928, no effort has been made on the part of either appellant to comply with the order. They were present at all the hearings, knew of the order, and refused to comply with it, and admit in this proceeding that they have not complied with it.

Appellants call attention to 46 C. J. 552, and rely on the law as there stated. The section quoted and relied on by appellant is § 40, on page 552, and following that, <§> 52 reads as follows: “A person for whose benefit or protection a notice should be given may waive the same, but he cannot waive notice so as to affect the rights of third persons.”

Appellants also call attention, in this connection, to Chicago & N. W. Ry. Co. v. Board of Sup’rs, 182 Ia. 60, 162 N. W. 868. This is a drainage case, and the statute in that case provided for two notices, hut the statute also provided for a hearing. The railroad company was present at the hearing, and could have taken an appeal, but did not do so, and the court in that case held that the notice was sufficient, and affirmed the case against the railroad company, stating, in effect, that it was not only in accord with the decisions of the Iowa court, but practically all other courts. It was contended in that ease that the proceeding was a taking of appellant’s property without due process of law, and the court said: “The sufficiency of notice and of opportunity of the property owner to be heard, to constitute due process of law, is a question that has had the attention of every court of the country, and, if any one thing concerning the law of taxation can be said, to be settled beyond doubt, it is that: “If provision is made ‘for notice to and hearing of each proprietor, at some stage of the proceedings, upon the question, what proportion of the tax shall be assessed upon his land, there is no taking of his property without due process of law.’ ”

In the instant ease a provision was made for notice and hearing; notice was given to the railroad company; it was present at the hearing, introduced evidence, appealed to the circuit court, where it appeared again, and then appealed to this court. And, under the rule announced in the case relied on by appellant, the appellants in this case had ample notice, and the contention that the case should have been dismissed because of the failure to file notice elsewhere is without merit. In the next case cited by appellants, Chicago N. W. Ry. Co. v. Hamilton Co., 182 Iowa 60, 165 N. W. 390, there is no question of notice at all, but this was also a drainage case, and was affirmed by the Iowa court. It does not, in fact, decide anything with reference to notice.

It is next contended by appellants that this court affirmed the .judgment of the Pulaski Circuit Court with certain modifications. We do not agree with appellants in this contention. There was no modification of the order by this court. This court said: “This is an appeal from an order of the circuit court of Pulaski County, Second Division, affirming an order of the Railroad 'Commission requiring appellants to erect umbrella sheds along the tracks of each of the railroads at Hoxie, where they intersect, from the depot jointly used by them to the place where the trains stop to discharge and receive passengers.” St. Louis-S. F. Ry. Co. v. Albright, 176 Ark. 762, 4 S. W. (2d) 911.

That was the order of the Railroad Commission and the order of the circuit court. The order required them to erect sheds. The opinion goes on to recite that it is shown that certain of the appellants ’ trains would have to make two stops, because they would have to make one stop to take water and then another for unloading and loading passengers. The court further said, on page 765: “We think it the clear and reasonable duty of appellants to stop' their trains at the depot, or else build umbrella sheds for the protection of the passengers, who are 'compelled to come and go one hundred and fifty yards in order to ¡board the trains or reach the depot.” And, because of this statement in the opinion of the court, it is contended that it modified the order of the Railroad Commission. But just below this statement is the following: “The requirement of the construction of necessary facilities in the operation of the business of a public carrier is in no sense taking its property without due process of law. The contention that the order to build the sheds will unnecessarily burden interstate commerce is without foundation in fact. * * * We cannot agree that there is no necessity for the sheds. The record reflects the necessity for them in order to protect passengers from the elements, because appellants stop certain of their passenger trains an unreasonable distance from the depot for the reception and discharge of passengers.”

Of course, if they stopped at the depot where passengers would be protected, there would have been no necessity for sheds and no necessity for the order, hut they did not do that; they claimed that it is impracticable to do so, and, for that very reason, the order was not to stop the trains, but to build the sheds, and there was no modification by this court of the order of the Bailroad Commission or order of the circuit court.

It is contended by appellants that this court had authority to modify, and they base that argument on a statement of the statute reading as follows: “And in such case the appeal to the Supreme Court shall be governed by the procedure, and reviewed in the manner applicable to other appeals from such circuit court, except that any finding of fact by the circuit court shall not be binding on the Supreme Court, but the Supreme Court may and shall review all the evidence and make such findings of fact and law as it may deem just, proper and equitable.” Section 21, act 124 of the Acts of 19-20L

Under that, what is this court to do? This court may and shall review the evidence. It did that in this case, and held that the evidence was sufficient to justify the order to build the sheds. This was the finding of fact that it made. There cannot be any controversy about it nor any misunderstanding about it if the whole opinion is read.

There is no contention either in this case or the other that the trains were stopped at the depot, but it is contended by appellant, because the prosecuting attorney put another count in his information, charging the railroad companies with failure to stop the trains, and that, because there was no proof that they did not stop the trains, they are entitled to the presumption that they have complied with the order of the commission because they stopped the trains. In the first place, the order of the commission, and the judgment of the courts was to construct sheds and not to stop their trains, and there was no occasion for the second count in the information. It was not based on any order of the commission or of the court. They were not fined under this count, and this count passes out of the case.

Appellants say: "We know of no law up to this time nnder which the State can (bring even railroad corporations into court under four hundred oases against them and secure a conviction or judgment thereon under any statute, penal in its nature or otherwise, without having some evidence as a predicate for such finding or judgment.”

Certainly they will not contend that there is not ample evidence to support the claim that the appellants violated the order of the Eailroad Commission in its failure to construct the sheds. The order was made to construct the sheds, and it is admitted in this case that the sheds have not been constructed. There was no order about stopping trains; hence no order for stopping trains could be violated. This also disposes of the third and fourth contentions of appellants.

It is next contended that the justice of the peace had no jurisdiction. The statute upon which the information is based expressly makes the failure to comply with the order a misdemeanor, and it is also expressly stated that every day of such violation shall constitute a separate offense. This is not a civil suit, but it is a prosecution for the violation of the order of the commission, and the statute provides for a fine, and the minimum fine was assessed against each of the parties.

Section 8568, referred to by appellants, makes it the duty of the railroad company to blow a whistle or ring a bell, and provides for a $200 penalty for negligence. It provides also that one-half of the penalty shall go to the informer and the other one-half to the county. In other words, it is a civil action for a penalty. The statute in that case did not make it a misdemeanor, and it did not provide- for the payment of a fine, but expressly stated that there should be a penalty of $200 for every neglect.

Section 6645 of Kirby’s Digest is quoted in support of the theory that only one fine can be assessed against appellants. That statute did not provide that each day should constitute a separate offense. Moreover, it made tlie parties liable to the party aggrieved. This question was settled by a decision of this court in the case of St. L. I. M. & S. R. Co. v. State, 99 Ark. 1, 136 S. W. 938, and settled against the contention of the appellants.

We therefore hold that the appellants, having notice and being present at the hearing*, are bound by the order made by the Eailroad Commission and affirmed by this court; that there was no modification of the judgment of the circuit court or the order of the Eailroad Commission ; that the findings of fact by the 'Supreme Court were exactly the same as the findings by the lower court; that the statute makes the failure to erect the sheds a misdemeanor ; that is, a failure to comply with the order of the commission is a misdemeanor, and the statute makes each day’s failure a separate offense. There is no contention that the sheds were built. That is the only order the commission made.

The .judgment of the circuit court is therefore affirmed.

Smith, J.,

(dissenting). It appears, from the former opinion involving the duty of the railroad companies to the traveling public at Hoxie (176 Ark. 761, 4'S. W. (’2d) 910), that the order of the Eailroad 'Commission was resisted upon five grounds, which we there stated as follows:

“First, that authority was not conferred upon the Eailroad Commission by statute to order railroads to construct umbrella sheds over their platforms, or, to put it differently, that the Eailroad Commission was without jurisdiction to order appellants to build sheds over their platforms from the depot to where they stopped certain of their trains to receive and discharge passengers; second, that the order was arbitrary and unreasonable, there being no necessity shown for the construction of the sheds; third, that the facilities already furnished are adequate; fourth, that the order of the 'Commission will deprive the railroads of their property without due process of law and in violation of § 1, article 14, of the Federal 'Constitution; fifth, that the order for the construction of these sheds is a burden on interstate commerce, and void.”

The conditions existing” at Hoxie were reviewed and the fact was found that these conditions required that the railroad companies afford passengers protection from inclement weather who wished to change trains at Hoxie while they were making this change, and we held that the testimony offered in support of the objections to this order made by the railroad companies set out above were not sufficient to make the order unreasonable, and void on that account.

We recognized, however, that protection to the traveling public could be given in either of two ways, one being to build the sheds, the other to make a second stop of the trains, and in this connection we said: “It is true that the testimony reflects that a union depot has been built at this point, modern and adequate for the protection of passengers when once in it. The argument that adequate facilities have 'been furnished because such a depot has been constructed does not meet the situation at Hoxie. It would, if the trains all stopped beside or near the depot where the passengers could reach it without exposing themselves to inclement weather. The depot, however, can furnish no protection to passengers who are compelled to go a distance of one hundred and fifty yards before they can board a train, or go that distance after debarking to reach the depot. The protection required against the elements is protection afforded at the place of getting on and off trains. We think it the clear and reasonable duty of appellants to stop their trains at the depot, or else build umbrella sheds for the protection of the passengers, who are compelled to come and go one hundred and fifty yards in order to board the trains or reach the depot.”

It is obvious that the two methods were equally efficacious to protect the traveling public, and we said so, and it should be assumed that the end desired was not to burden the railroad companies, 'because the power existed to do so, but rather to protect the traveling public.

The railroad companies, after the former opinion was delivered, were left with no right to say that protection was not needed by the traveling public; they were left with the discretion only of affording this protection in one of two ways.

That this court had the power thus to modify the order of the Railroad Commission is not denied; indeed, the majority quotes the section of the act which expressly conferred this authority. It reads as follows: “Section 21. * * * And in such case the appeal to the Supreme Court shall' be governed by the procedure, and reviewed in the manner applicable to other appeals from such circuit court, except that any finding of fact by the circuit court shall not be binding on the Supreme Court, but the Supre'me Court may and shall review all the evidence and make such findings of fact and law as it may deem just, proper and equitable * * ’Act 124 of the Acts of 1921, page 177.

If it was not the purpose of this court to- modify the order of the Railroad Commission in the respect mentioned, then we incorporated into the opinion a very misleading statement as to the duty of the railroads, and we submit that a fair interpretation of that opinion is that the railroads might discharge their duty to the traveling public either by building sheds or stopping the trains at an appropriate place, to-wit, beside or near the depot, where the passengers could reach it without exposing themselves to inclement weather. It is true the opinion concludes with the statement that the judgment of the circuit court was affirmed, but no practice is more common than that of modifying judgments and affirming them as modified.

That the opinion was so interpreted even by the law officers of the State engaged in enforcing the order as giving the railroads the option of building sheds or of stopping the trains at an appropriate place is shown by the character of the prosecutions which were commenced against the railroad companies.

The informations filed in the justices’ courts were identical in every respect except as to allegation of the dates upon which the order had 'been violated. Each of these informations contained two counts, the first charged the sheds had not been erected, and then, to negative the anticipated defense, that, although the sheds had not been erected, the trains had been stopped and the modified order thereby complied with, a second count was added which charged that the trains had not been stopped. The appearance of this second count in the information is explainable only on the assumption that it was thought the order might be complied with in either of two ways, but had not been complied with in either way.

No testimony was offered at the trial from which this appeal comes to the effect that the trains were not stopped, as our opinion said they might be, but it is here insisted that the second count was surplusage. It is not conceded by the railroad companies that the trains were not stopped. On this count there is an entire absence of testimony. Under the most elementary rules of criminal evidence, this burden was not on the railroad companies, and as the State did not offer any testimony on the second count the judgments are erroneous, if, in fact, the railroad companies had the option of stopping the trains, instead of building the sheds, as we think we have shown they had.

In our opinion the judgments appealed from are erroneous for the additional reason that the Railroad Commission had not sufficiently complied with the law in the matter of the promulgation of its order to make it such an order that its non-observance constituted a violation of law.

The power of the 'Commission is derived from the act of which § 1640, C. & M. Digest, is a part and which the majority opinion quotes. By reference to this act it will be seen that the 'Commission must, not only conduct a hearing under other sections of the act which the majority cite, but, having had the hearing and having made what was deemed to be an appropriate finding, this finding must be filed, and the Commission has not sufficiently complied with the law to give its findings the force and effect of a statute until these findings have been filed as required by the act. The requirements of § 1640, C. & M. Digest, are that the Commission “shall file a copy of their findings and decrees with the Secretary of State, the Attorney General, the circuit clerk of the county wherein such decree is granted * * V’ Until this is done, the law has not been complied with, and until the law has been complied with an essential requirement to give the findings the effect of law remains unperformed. It will not do to say that this filing was unnecessary and would accomplish no useful .purpose. The General Assembly, and not this court, is the judge of that question. The General Assembly, in clothing the Commission with the power to make the order, had the right to say under what conditions that power- might be exercised and when the violation of an order made pursuant to this power should become and be a violation of law.

The argument is made in the majority opinion that a person entitled to notice may waive the right to have the notice -given, and that he does waive this right if, without demanding that notice be given, he becomes a party to a proceeding which could be had only after notice if that right were not waived. We do not question this statement of the law, but this is not the question we present. In addition to the authorities cited in the majority opin',ioh to the effeqt that the requirement of notice may be waived, others from our own court could be cited. All the cases on that subject are to the same effect, but the cases cited do not relate to the question whether a rule, regulation or order of a governmental agency, acting under a delegated power of the General Assembly, takes on and has the force and effect of a statute where the statute under which the agency acted has not been complied with. Only the General Assembly has the power, under our system of government, to declare what shall he crimes and misdemeanors throughout the State, and while there may he delegation of authority to some agency to make rules and regulations and findings the violation of which is unlawful, this result is effected only when this agency has fully complied with the law delegating the power, for then, and not until then, has the will of the 'General Assembly heen éxacuted. Indeed, it is true of the Acts of the General Assembly itself that, if it is provided in an act that it shall be effective after a certain time, or under certain conditions which are prescribed, the act is not the law until the time limited has expired or the applicable conditions have arisen. Summers v. Road Imp. Dist. No. 16, 160 Ark. 371, 254 S. W. 696; Miller v. Witcher, 160 Ark. 479, 254 S. W. 1063.

With all deference to the majority we say, after examining the authorities cited, that none of them deals with the question here presented, that is, when a rule, regulation or order of a governmental agency, to which a ^«si-legislative duty was delegated, becomes effective as a law and its violation punishable as in case of the violation of a statute.

It is settled law that, while the General Assembly may not delegate the authority to legislate, it may constitute an agency to make such regulations as are necessary to protect the public weal in certain cases, and may provide that violations of these regulations may be punishable by criminal prosecutions; but it is equally as well settled that such regulations are not given the force of laws until the agency promulgating the rules or findings has performed the requirements of the statute in their promulgation. Reading v. Farmers’ Loan & Trust Co., 164 U. S. 362; Snow v. Riggs, 172 Ark. 835. These legislative requirements take many forms, as that the rules, regulations, findings, or requirements be published in a certain way, or for a definite time, or that they become effective after a certain date, or that they be recorded in a particular way, or be filed in a certain place, and these requirements are conditions precedent, whether they are expressly declared so to be or not.

Section 1640, C. & M. Digest, from which we have quoted, requires that the findings of the Railroad Commission he filed, and designates where they shall be filed, and the power does not inhere in the courts to say that the performance of this duty is not essential if, as in this case, the party affected has notice of the findings. This is true, because it is not the violation of the findings which is made unlawful; the act made unlawful is the violation of a finding which has been filed as the law requires.

This principle has been applied in many cases, and a recent application of it is found in the opinion of the Supreme Court of the United States in the case of Wichita Railroad & Light Company v. Public Utilities Commission of the State of Kansas, 260 U. S. 48, 43 S. Ct. 51.

That case arose out of an order of the Public Utilities Commission of the State of Kansas, which corresponds in its functions to the Railroad Commission of this State. In that case the rate charged for electrical energy was changed. This was done pursuant to the power conferred by § 13 of the act creating the Utilities Commission. This section, as it appears in the opinion of the Supreme Court of the United States, supra, reads as follows: “It shall be the duty of the commission, either upon complaint or upon its own initiative, to investigate all rates, * * * fares * * * and if after full hearing and investigation the commission shall find that such rates * * are unjust, unreasonable, unjustly discriminatory or unduly preferential, the commission shall have power to fix and order substituted therefor such rate or rates * * * as shall be just and reasonable.”

This act confers the power to make findings as to rates which are just and reasonable, but it will be observed that the Kansas act does not require, as our act does, that these findings be reduced to writing and be filed or otherwise promulgated. If the Kansas statute were liberally construed, as the majority have done in the case of our statute, it could have been said that the order of the Utilities Commission changing the rate necessarily implied a finding that the rate changed was either too much or too little; indeed, the opinion of the Court of Appeals states that the 'Commission must have found that the rate charged was not compensatory.

The Federal District Court enjoined the execution of the finding's and order of the Utilities Commission, but on the appeal to the 'Circuit Court of Appeals (268 Fed. 37) the decree of the District Court was reversed and it was held, in an opinion written by our own late deceased and much lamented Judge Trieber “that the Commission, when making’ the order complained oí, made no special findings of fact, is wholly immaterial, as there is nothing’ in the act creating the Commission and defining’ its duties and powers requiring it.”

The learned judge further said: “Springfield Gas & Electric Co. v. Barker (D. C.) 231 Fed. 331, 344, and Public Utilities Commission v. Springfield Gas Co., 291 Ill. 209, 125 N. E. 891, relied on by counsel for appellee, are not applicable, as the statutes of Missouri and Illinois expressly provided that the Commission shall make and file its findings of fact in writing. In the Barker case the opinion quotes that section of the Missouri statutes. There is no such provision found in the Kansas statute. The only act in writing required by the statute is found in § 16 of the act (Laws 1911, c. 238), which provides: ‘All orders and decisions of the Public Utilities Commission whereby any rates * * * are altered, changed, modified, fixed or established, shall be reduced to writing, and a copy thereof, duly certified, shall be served on the public utility or common carrier affected thereby, by registered mail.’ ”

As our statute, like those of Missouri and Illinois, requires a finding in writing, and also requires that this finding be filed, the same distinction in regard to our statute would, no doubt, have 'been made by the learned judge had it been involved, instead of the Kansas statute, as was there made in regard to the statutes of Missouri and Illinois.

An appeal was duly prosecuted to the Supreme Court of the United States, where, in an opinion by Chief Justice Taft, the decision of the Circuit Court of Appeals was reversed, and as the opinion concretely applies the legal principle here involved we quote somewhat extensively from it. It was there said:

“The proceeding we are considering is governed ¡by § 13. That is the general section of the act comprehensively describing the duty of the Commission, vesting it with power to fix and order substituted new rates for existing rates. The power is expressly made to depend on the condition that after full hearing and investigation the Commission shall find existing rates to he unjust, unreasonable, unjustly discriminatory or unduly preferential. We conclude that a valid order of the Commission under the act must contain a finding of fact after hearing and investigation, upon which the order is founded, and that, for lack of such a finding, the order in this case was void.
“This conclusion accords with the construction put upon similar statutes in other States. Public Utilities Commission v. Springfield Gas & Electric, Co., 291 Ill. 209, 125 N. E. 891; Public Utilities Commission v. Baltimore & Ohio Southwestern R. R. Co., 281 Ill. 405, 118 N. E. 81. Moreover, it accords with general principles of constitutional government. The maxim that a Legislature may not delegate legislative power has some qualifications, as in the creation of municipalities, and also in the creation of administrative hoards to apply to the myriad details of rate schedules the regulatory police power of the State. The latter qualification is made necessary in order that the legislative power may be effectively exercised. In creating such an administrative agency the Legislature, to- prevent its being a pure delegation of legislative power, must enjoin upon it a certain course of procedure and certain rules of decision in the performance of its function. It is a wholesome and necessary principle that such an agency must pursue the procedure and rules enjoined and show a substantial compliance therewith to give validity to its action. When, therefore, such an administrative agency is required as a condition precedent to an order, to make a finding of facts, the validity of the order must rest upon the needed finding. If it is lacking, the order is ineffective.
“It is pressed on us that the lack of an express finding may he supplied 'by implication and .by reference to the averments of the petition invoking the action of the Commission. We cannot agree to this. It is doubtful whether the facts averred in the petition were sufficient to justify a finding that the contract rates were unreasonably low; but we do not find it necessary to answer this question. We rest our decision on the principle that an express finding of unreasonableness by the Commission was indispensable under the statutes of the State.”

It will be observed that the holding, that an express finding to give the order of the Utilities Commission effect was made in the construction of a statute which did not provide that the finding should be a condition precedent, nor did the Kansas statute provide, as does ours, that the finding should be promulgated by filing it in any particular place. The principle involved and applied by the Supreme Court of the United States was that an agency discharging a delegated power could bind persons affected by its order only when it had exercised its power in the manner provided by the statute delegating the power. If that principle were applied here, as we think it should be, it would result in holding that, as the Eailroad Commission had not complied with the law in promulgating its finding by filing it as required by law, a violation of its finding was not an offense, and, as it was admitted at the trial from which this appeal comes that the finding had not been filed as required by law, it is our opinion that the judgments imposing fines should be reversed.

The Chiee Justice and Mr. Justice Kirby concur in the views here expressed.


source: Caselaw Access Project

author: McHaNey, J.

license: Public Domain

text:
    Gurley v. State.
    Opinion delivered September 30, 1929.
    J. 0. A. Bush and Dexter Bush, for appellant.

      Hal L. Norwood, Attorney General, and Robert F. Smith, Assistant, for appellee.
   McHaNey, J.

Appellant was indicted in one' indictment charging him with the crime of embezzlement and grand larceny. On a trial he was acquitted on the charge of grand larceny, convicted on the charge of embezzlement, and sentenced to one year in the penitentiary. The embezzlement charge in the indictment reads as follows:

“The said defendant, on the 27th day of November, 1928, in Miller County, Arkansas, then and there being over the age of sixteen years, and ¡being the agent of one H. W. Batte, and having in his possession as such agent as aforesaid $400, the proceeds of the sale of five bales of cotton, the property of the said H. W. Batte, and said $400 'being in gold, silver and paper money of the United States, the exact denominations of each particular kind of money being to the grand jury unknown, and of the value of $400, did unlawfully and feloniously and fraudulently make way with, embezzle and convert to his own use said money as aforesaid, against the peace and dignity of the state of Arkansas.”

To this charge in the indictment a demurrer was interposed, on the ground that it did not charge an offense, for the reason that it failed to allege that he embezzled or converted the money “without the consent of his master or employer.” The statute under which he was indicted is 2500, C. & M. Digest, which, stripped of unnecessary verbiage, reads as follows: “If any * * * agent of any private person * * * shall embezzle or convert to his own use, * * without the consent of his master or employer, any money, * * * which shall have come into his possession, or under his care oir custody, by virtue of such * * * agency, * * * he shall be deemed guilty of larceny, and on conviction shall be punished as in case oif larceny.” It will be noticed that the indictment omits to charge that he embezzled or converted the money “without the consent of his master or employer.”

It is said that the court committed reversible error in overruling’ this demurrer and also a like motion in arrest of judgment. It will be noticed, however, that the indictment does charge that appellant “did unlawfully and feloniously make way with, embezzle and convert to his own use said money.” These words in the indictment are sufficient to- cover the language of the statute, “without the consent of his master or employer.” For, if it had been done with the consent of his master or employer, the taking could not have been unlawful, felonious, and fraudulent. In Beard v. State, 79 Ark. 293, 95 S. W. 995, 97 S. W. 667, 9 Ann. Cas. 409, the court had under consideration an indictment for rape which omitted to charge, in the language of the statute, that the crime was committed “forcibly and against her will.” And it was held that the indictment was good, when questioned for the first time on appeal, for the reason that the other language in the indictment necessarily charged that the act was committed against the will of the female. In State v. Peyton, 93 Ark. 406, 125 S. W. 416, 137 Am. St. Rep. 93, it was held directly that an indictment for rape was good on demurrer which charged that the accused did 4 ‘ unlawfully ” and 4 4 forcibly ravish and carnally know,” although it failed to charge that the act was done against her will. Moreover, the word “embezzle” as used in the indictment has a technical and well-defined meaning. Webster defines it: 44To appropriate fraudulently to one’s own use, as property intrusted to one’s care; to apply to one’s private uses by a breach of trust; as, to embezzle money held in trust.” See also definitions in Words and Phrases, Yol. 2, 2d Series, p. 251; Teston v. State (Fla.), 39 So. 787. Under § 3014, C. & M. Digest, 4 4 no indictment is insufficient, nor can the trial, judgment, or other proceeding thereon be affected by any defect which does not tend to the prejudice of the substantial rights of the defendant on the merits.” In the 3d paragraph of § 3013 it is said to be sufficient if 4 4 the act or omission charged as the offense is stated with such a degree of certainty as to enable the court to pronounce judgment on conviction, according to the rights of the case.” We are therefore of the opinion that the indictment in this case is sufficient, although it omitted those words of the statute.

Neither is there any merit in appellant’s argument that the court should have instructed the jury to acquit appellant for the reason that the indictment alleged that he was over the age of sixteen years. While no witness testified as to the exact age of appellant, one witness did testify that he had known him since he was first elected sheriff. This was sufficient to show that he was over sixteen years of age, and, while appellant did not testify, he was present in the court room during the trial, and the jury were able to observe whether or not he was a person over the age of sixteen years.

The most serious question in the case, and the one that has given us much concern, is whether the facts as disclosed by the evidence establish the crime of embezzlement. Mr. Batte testified that he sold appellant six 'bales of cotton at 20 cents per pound, gin weight, at Foulce, in Miller 'County, Arkansas; that appellant was to take the cotton to town, meaning- Texarkana, we assume, to sell it; that he asked appellant to deposit $500 to the witness’ credit in the State National Bank and bring him the remainder; that he turned the cotton over to appellant; that he reported later he had sold the cotton, brought him a deposit slip showing him a deposit of $500 in the bank, and paid him the difference in cash. He later learned that appellant had deposited only $100 in the bank, and that the duplicate deposit slip which had been delivered to him by appellant had been raised from $100 to $500. He then demanded that appellant make good the difference, which he attempted to do by giving him a worthless check for $400.

If the relation of debtor and creditor existed between them, if Batte sold appellant his cotton and appellant agreed to pay him therefor, when he sold it, by. depositing $500 in the bank to Batte’s credit and paying the difference in cash, no question of agency being involved, certainly the crime of embezzlement was not established. A majority of the court is of the opinion, however, that appellant was the agent of Batte to deposit the money in the bank, or that, under the facts, it was a question to• be submitted to the jury, which the court did by telling them, in instruction No. 7, that they could not convict appellant unless they found from the evidence, beyond a reasonable doubt, that appellant was the agent of Batte in having the cotton sold and receiving the money therefor.

Mr. Justice Butler and the writer of this opinion do not agree with the maj9rity on this point, hut are of the opinion that the evidence establishes merely the relation of debtor and creditor between them.

Judgment affirmed.


author: Mehaffy, J.

text:
    O’Neal v. State.
    Opinion delivered April 1, 1929.

      Hal L. Norwood, Attorney General, and Robert F. Smith, Assistant, for appellee.
   Mehaffy, J.

The appellant was convicted of the crime of grand larceny and sentenced to one year in the penitentiary, and prosecutes this appeal to reverse said judgment.

Appellant has filed no brief, but in his motion for a new trial he alleges that the verdict and judgment is contrary to the law and that the verdict and judgment is contrary to the evidence. He also alleges that the court erred in giving instructions Nos. 1 to 8, inclusive.

The evidence on the part of the State showed that about 1,000 pounds of cotton o'f the value of $67, was taken from the shed of John Haines and witnesses testified that cotton was dropped, along showing that it had been carried south across the pasture to the schoolhouse; that a wagon had been at that place and that there was a team of mules shod in front with new shoes. Witnesses measured the tracks and followed the tracks, tracking a wagon and mules up to where the appellant lived. They measured the tracks of mules when they got to appellant’s place and the measurements were the same; that the mules .they found in the lot there were shod in front, and there was evidence that they had been recently used, and that the sweat had not dried off the harness. They followed the tracks of the mules and wagon from the place where the cotton was taken to appellant’s place, and a number of witnesses testified that the tracks were the same, and that no other wagon had gone along there.

The appellant denied being at the place and denied taking the cotton, and introduced witnesses that corroborated his testimony in part.

The testimony was entirely circumstantial but, if believed it was sufficient to justify the jury in finding the appellant guilty.

“The jury are the judges of the credibility of the witnesses and the weight to be given to' their testimony. Therefore, in determining whether the evidence is sufficient to support the verdict, this court must consider the evidence in the light most favorable to the- State, and, when this is done, it cannot be said that the evidence did not warrant the jury in returning the verdict of guilty. ’ ’ Bowlin v. State, 175 Ark. 1047, 1 S. W. (2d) 546; Yeager v. State, 176 Ark. 725, 3 S. W. (2d) 977.

Where circumstantial evidence alone is relied upon to establish the guilt of one charged with crime, such evidence must exclude every other reasonable hypothesis than the guilt of the accused. The State in this case relied on circumstantial evidence and must be governed by this rule. But the court in its instructions in this case, told the jury that where the State relied on circumstances to establish the guilt of the defendant, the circumstances must he consistent with the defendant’s guilt and inconsistent with his innocence, and they must he so connected as to exclude every reasonable hypothesis of the defendant’s innocence. See Logi v. State, 153 Ark. 317, 240 S. W. 400; Withem v. State, 175 Ark. 453, 299 S. W. 739; Sluder v. State, 162 Ark. 212, 258 S. W. 123.

This court has many times held that the credibility of witnesses and the weight to be given to their testimony are questions for the jury. There was ample evidence to sustain the verdict and we have carefully considered the instructions given by the court and find no error in said instructions. The charge of the court properly directed the jury, and their verdict on facts will not be disturbed.

The judgment of the circuit court is affirmed.


text:
    Roach v. State.
    Opinion delivered June 24, 1929.

      Fred A. Isgrig and Philip McNemer, for appellant.

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

.Appellant and one William Neighbors were jointly charged in separate indictments for manufacturing intoxicating liquor and possessing a still. Neighbors pleaded guilty, and assumed all responsibility for both offenses. ' Appellant was tried on both indictments, acquitted of possessing a still, convicted of manufacturing liquor, and sentenced to one year in the penitentiary.

The only error urg*ed for a reversal of the case is that the court should have instructed a verdict in his favor because of the lack of any substantial evidence to support a conviction. In determining this question we must view the evidence in its most favorable light to the State, and, when this is done, if there is any substantial evidence to support the verdict, it must stand. 'Counsel concede this well established rule, but say there is no evidence to support the verdict.

Only one witness testified for the State, Dave Brown, a prohibition officer, who arrested appellant and Neighbors at the still, with other officers. This witness and the other officers found appellant and Neighbors at the still, which was of about one hundred gallons capacity, and in full operation. About twenty gallons of whiskey had been made that morning. The officers left their car about two miles south of the still, and followed car tracks through a back road, and, when in about 300 yards of the still, they heard some one chopping wood. They moved in a little closer, got where they could see the still, and could see two persons moving about there, splitting wood and talking. They watched them some time, but, on account of the thicket intervening, were unable to tell exactly what any one was doing. Then finally decided to go on down and arrest them, and, when they got in about 20 steps of the still, Neighbors saw them, and started to run. The witness Brown started after Neighbors, and as he passed the still he heard a noise, something that attracted his attention, and looked and saw appellant standing- to his right, by the side of a block of wood that had been sawed off of a log about 40 steps from the still, the 'same kind of wood they were using in firing the furnace. ■ He didn’t see appellant drop the Mock of wood, nor could the witness say what kind of noise it was that attracted his attention, but, when he heard the noise, he looked, and saw appellant standing immediately beside this block of wood, about half way between the log from which it was sawed and the still. Witness further said: “They would split wood, and I heard them get water, but as to saying who did it, I can’t say. I know the men were there moving about, and the still was in operation when I went up there.”

Appellant told the officers that his wife had brought him out to the still that morning, and she went on to Little Rock; stated that he came out to get some whiskey, and that she was coming back for him. Witness 'Brown said he observed the ear tracks coming in to the still made in the old mudholes, and that they were made by balloon tires with a certain kind of tread, all by the same car; that he laiter saw appellant’s car, and that the tires on his oar were apparently of the same tread or design as the tracks made in the mudholes through the woods. Appellant had his coat off when arrested at the still. The Mocks of wood that had been cut from the old log had been cut with a saw, and were about a foot in diameter. A lot of trees had been cut down and sawed into blocks. The Mocks would be carried to the still and split up there and used to fire up the furnace.

Neighbors denied that appellant, Who did not testify, had any connection with the still. He stated on cross-examination, however, that, when appellant saw the officers coming, “he got up and ran up * * * walked up on the hill a little fast;” started running, and stopped at the block of wood heretofore mentioned. Also that he was going to give appellant a gallon jug to take the Whiskey home in, for which he had come to the still. But it was shown that there was no jug at the still. This was sufficient to take the case to the jury, as from it, together with the testimony on behalf of appellant, it was a question of fact for the jury to determine whether appellant was merely an innocent bystander or whether helping to operate the still. Ellis v. State, 172 Ark. 613, 290 S. W. 59; Bright v. State, 173 Ark. 1054, 294 S. W. 390; Tuggle v. State, 174 Ark. 156, 294 S. W. 385.

Judgment affirmed.


text:
    Storms v. State.
    Opinion delivered April 22, 1929.

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

The appellant was indicted for murder in the second degree for the killing of Arch Bean, on November 1, 1926. He was tried, found guilty of voluntary manslaughter, and his punishment fixed at four years in the penitentiary. The appellant filed a motion for new trial, alleging that the verdict was contrary to the law and evidence, and that the court erred in giving instructions numbered 1 to 23, inclusive. His motion for new trial was overruled, exceptions saved, and he prosecutes this appeal to reverse the judgment of conviction.

Dr. R. M. Stanley testified that he was called to see Arch Bean; that Bean had a fracture of the skull, and he called in Drs. Gray, W. R. Hunt and Earl Hunt; that there were three distinct fractures from the blow; the wound was inflicted with a blunt instrument, and the character of the wound would indicate that he had been hit by some one above him; that Bean died the next morning, from the effects of the wound.

J. W. Bean, father of Arch Bean, testified in substance that Arch Bean was 34 years old; lived about a quarter of a mile from him, and was at witness’ house on the morning of the day he was killed, and then came to his father’s house again in the afternoon, and had been there about ten minutes when Cecil Storms came. Storms was invited in, but said he didn’t have time. Storms asked Arch if he wanted to take a squirrel hunt, and Arch agreed to go, and they went off south through the woods. Arch Bean was married, and had a wife and six children. Witness had never heard of any trouble between Arch and Cecil. •

Mrs. J. W. Bean, mother of Arch Bean, also testified about Cecil Storms coming to their house, and about him and her son talking together.

Mrs. A. M. Bean, wife of the deceased, testified that she was the sister of defendant, Storms, and that she saw Storms standing at the front door the day her husband was killed, and he said to her, “Arch is hurt.” When she asked Storms who hurt him, he said he did, that he hit him with a gun. Witness asked Storms to show her the way to where Arch was, and he acted like he was going to shoot all of them. He did not take witness to where her husband was, but a Mr. Beavers heard them screaming, and came to them, and Cecil then left. Mr. Beavers went down the road, and found Arch there; found him about a quarter of a mile from the house. Storms had visited them at their house up to a year before the killing, but neither he nor his wife had visited them up to within a year prior to the killing. Storms had applied to witness’ husband for a loan of $800 about a year before the killing, and witness objected' to his making the loan.

Dr. W. 11. Hunt also testified about the death resulting from the injury received on the side of deceased’s head.

E. Crumline, the undertaker, testified that he prepared the body of Arch Bean for burial, and that his back and shoulder looked like they were bruised, and black and blue. Besides this bruise, witness did not notice any other wounds, except on his head.

Oscar Sears, another witness, testified about the wounds and the killing.

I. C. Bean testified about the place where they found Ai'ch Bean, and about noticing blood on the hillside.

Ed Ogden testified about carrying the body from the hill to the home, about there being dark-looking streaks on his back.

Some other witnesses testified also about what Storms said.

Ed Edwards, a' deputy sheriff, testified for the defendant; that he went and arrested Cecil; that when he got there Cecil was crying; that they brought him to town, aiid he related the circumstances to them.

Buddie Sanders, also a witness for the defendant, testified about being with them when they went hunting, and stated that he heard the deceased say to Storms that it was a damned lie, and saw him throw up' his gun, and that Cecil struck him down; that witness then ran, and did not see any more of it.

L. A. Sanders also testified in behalf of appellant.

Appellant himself testified, denying all the statements that his sister had made about borrowing money, and also testified that the deceased had been to his house and insulted his wife, and also testified about going by the home of deceased’s father and finding him there; that he intended to go to deceased’s house and mention the matter about deceased insulting his wife, but he concluded to mention the matter to him before, and that when he did, deceased said, “It is a damn lie, and I will shoot you.” When he did that, he struck deceased, but did not intend to hurt him much. He testified also at length about going by his sister’s, and what was said; but we deem it unnecessary to review all the testimony here. The killing is admitted by the appellant, and the evidence is ample to siistain the verdict. The jury might have found appellant guilty on his own testimony.

As said in the case of Vaden v. State, 174 Ark. 950, 298 S. W. 323: “The jury might’have found, from appellant’s own testimony, that he acted hastily in taking the life of deceased. The jury was warranted in finding that appellant voluntarily and unnecessarily engaged in the rencounter with Lawrence Harris which resulted in the death of Harris. It was purely the province of the jury to determine, under the evidence, the innocence or guilt of the appellant.” Bruder v. State, 110 Ark. 402, 161 S. W. 1067; McGough v. State, 119 Ark. 57, 177 S. W. 398.

In the instant case, however, the jury may have disbelieved appellant’s story about how the difficulty occurred. The testimony of the State’s witnesses, some of them, tends to show that the appellant had got angry because deceased had refused to lend him money, and appellant’s own testimony shows that he intended to see deceased and ask him about insulting his wife; that that was his purpose in wanting to see the deceased. Then the undisputed proof shows that he was struck on the back and on the right side of his head, above the ear. The doctor testified that the wound indicated that he had been hit from above.

This court does not pass on the weight of evidence nor on the credibility of the witnesses. This is the province of the jury; and the rule is well settled by the decisions of this court that, in determining the legal sufficiency of evidence to support the verdict, it must be considered in the light most favorable to the State. Moore v. State, 167 Ark. 164, 267 S. W. 769; Campbell v. State, 170 Ark. 936, 282 S. W. 4; Pierce v. State, 176 Ark. 1205, 4 S. W. (2d) 948.

The appellant also contends that the court erred in giving instructions numbered 1 to 23 inclusive. The court instructed the jury fully on every issue in the case, and the court did not refuse to give any instructions requested 'by appellant. The instructions are quite lengthy, and we deem it unnecessary to set them out or discuss them in this opinion. We have carefully examined all the instructions, and have readied the conclusion that the charge of fhe court was correct.

Finding no error, the judgment is affirmed.


author: Smith, J.

text:
    National Bank of Arkansas v. Feibelman.
    Opinion delivered June 24, 1929.

      Rowell & Alexander, Coleman & Gantt, S. A. Miller, Reinberger & Reinberger, Owens & Ehrman and G. DeMatt Henderson, for appellant.

      Streett & Rurnside and Williamson & Williamson, for appellee.
   Smith, J.

This appeal arises out of the efforts of nine creditors of Adolph Feibelman to enforce their demands against him. It will be unnecessary to set out how the various cases arose and were finally consolidated, as the controlling and decisive question in all of them is that of Feibelman’s sanity. If he is in fact sane, or was sane when the demands were incurred, the creditors are entitled to have the relief which they pray, and the court from which this appeal comes need only take such action as will accomplish that result.

More than one hundred witnesses testified on the question of Feibelman’s sanity, and we have before us a record of over twelve hundred pages, and numerous briefs of counsel have abstracted and discussed this testimony, yet tbe answer to a single question will dispose of tbe entire litigation, and that is, was Feibelman sane when be incurred tbe indebtedness wbiob bis creditors seek to collect?

Tbe number of witnesses on each side is about equal, but tbe preponderance of tbe expert testimony is that Feibelman was insane when these demands were incurred. Tbe chancellor accepted this view, and entered a decree according with it, and this decree must be affirmed unless we can say that the finding is against tbe preponderance of the evidence.

It was the opinion of tbe medical experts that Feibel-man bad suffered from a form of insanity which was designated as manic depressive psychosis, 'and it was agreed by all tbe experts that an early symptom of this disease of tbe mind is that of an increased activity, physical and mental, on tbe part of tbe patient, with 'an exaggerated sense of importance and 'self-esteem, but these symptoms disappear as tbe disease progresses, and tbe feeling of exultation gives way to one of depression, and tbe patient becomes sullen, morose, lethargic, and has suicidal tendencies. These conditions result in the loss of control of the mental processes, and the patient who has them is insane.

Tbe first of tbe experts who- treated Feibelman professionally was a Doctor Schwab, who saw Feibelman for tbe first time on January 11, 1927, and treated him until February 4, 1927, during five days of which time Feibel-man was in a hospital in St. Louis, and during thei remainder of tbe time Feibelman was an office patient.

It would be almost interminable to set out the testimony seeking to prove and disprove that Feibelman was affected with this form of insanity. Many idiosyncrasies and peculiarities of tbe man were detailed which might be found in many men about whose sanity no question existed, if their lives were scrutinized as Feibelman’s has been, but it is very earnestly insisted that the testimony shows far more than this, and that Feibelman’s conduct can be accounted for on the hypothesis only that he was an insane man.

Prior to 1926 Feibelman had been an aggressive and successful business man, but ivith the beginning of that year he closed out bis mercantile business, and gave increased attention to his farming interests and to advancing money to others engaged in farming, and to buying and selling icotton, and to looting after his real estate holdings in the town of Eudora, where he resided. He carried over from 1925 a large quantity of cotton, and this, with his new ventures, required the use of a large amount of money. He was thought to be worth from $150,000 to $200,000, and his financial .statement showed that he was, and his credit was good. He had never had any difficulty borrowing money. During' 1925 he had been treated for both diabetes and pneumonia, but had apparently recovered in 1926, and about this time began the alleged exaggerated activity and improvident enlargement of his business and the orgy of spending money, which the experts testified were the acts of an insane man and the primary manifestations of the disease of maniac depressive psychosis.

In the hypothetical question to the experts, those who had seen Feibelman or had treated him professionally were ashed, after taking into account their own observations of him, to assume as true the following facts: About January 1, 1926, a marked change occurred in Feibelman’s habits and conduct; he “engaged in many lines of activity and in business ventures of very unsound and impractical character, foreign to his customs and habits of a lifetime;” that he “started numerous business ventures and undertakings which were far beyond his capital and capacity, and in some instances commenced things which he never even attempted to complete,” so that, “in the course of but a few months his credit was exhausted, and he owed large sums of money which he could not pay, all resulting from a course of indiscriminate borrowing and buying at high prices things he did not need;” that, “with one or two automobiles of the family at his disposal, he bought an expensive oar for his individual nse, with which he took long and extended trips all over the country in his orgy of buying and borrowing, not advising his family of his whereabouts for days;’'’ that, after about nine months, “he sanie into a state of great depression and despair, and walked the streets aimlessly, with bowed head, and passed friends of long standing without speaking to them, and would cry and moan without apparent cause, and required petting to induce him to attend meals and perform the ordinary household practices, and otherwise manifested a complete reversal of his former life and habits.”

In answer to this question, five physicians, who had qualified as insanity experts, testified that the man described was insane, and incapable of transacting business. A single insanity expert expressed the contrary opinion, that the man was sane.

We cannot review the testimony, although we have carefully considered it, and we have concluded that the picture of Feibelman is overdrawn to the extent that an opinion based upon it assumes facts as true which the testimony does not establish.

The National Bank of Arkansas, of Pine Bluff, became-Feibelman’s principal creditor, and its business relations with him commenced February 26, 1926, and resulted from the fact that a Mr. McLeod, who was .then the cashier of the bank, had previously been connected with the First National Bank of Lake Village, as cashier, and with the First National Bank of Eudora as a director, and had known and had transacted business with Feibelman for many years. Feibelman was a customer of the bank at Eudora, and that bank did not have sufficient capital to accommodate Feibelman’s requirements, and the excess line of credit was handled through .the Pine Bluff bank, which was the correspondent of the Eudora bank. Feibelman obtained his first loan from the Pine Bluff bank on February 26, 1926, which was for $5,000, for thirty days, and this loan was paid. On May 19,1926, Feibelman borrowed $11,000, due in ninety days, and on May 24 lie borrowed an additional $5,000, due in ninety-one days. On May 29 lie borrowed $4,000, and on June 18, $7,000, making a total indebtedness of $27,000. These loans were all unsecured, and bore interest at the rate of six per cent, per annum. They were made on the financial statements submitted by Feibelman, the accuracy and .truth of which do not appear to be questioned.

On July 9 Feibelman borrowed an additional sum of $2,000, which was secured by a warehouse receipt for 35 bales of cotton, 'and on August 31 he borrowed $9,800, which wa& secured by warehouse receipts for 109 bales of cotton, and on September 24, 1926, he borrowed the sum of $6,450, which was secured by warehouse receipts for 86 bales of cotton. The notes for $2,000, for $9,800 and for $6,450 were paid. The remaining indebtedness of $27,000 was then evidenced by two notes, one for $6,000 and the other for $21,000. The $6,000 note was secured by warehouse receipts for 60 bales of cotton and the $21,-000 note by a deed of trust on certain real estate. In addition, Feibelman had carried a personal account with the Pine Bluff bank, which amounted to $16,000, and this was closed by a check for the balance then on. hand, drawn December 18,1926.

This is the money which Feibelman is said to have wasted in the orgy of borrowing and spending, and it is during the time that these loans were being made and spent that Feibelman so conducted himself that witnesses in his behalf testified that he was then insane. In this connection it is appropriate to say that the officers of the three banks concerned in lending this money testified that they did not know or suspect that Feibelman was insane, and it is and was their opinion that he was not insane.

Practically all of the indebtedness here involved was incurred prior to January 1,1927.

The testimony as to the new ventures upon which Feibelman embarked and the manner in which he spent his money was detailed as fully by a Dr. Scott as by any other witness. Dr. Scott was a physician who had retired from the practice, and he knew Feibelman personally and intimately. Dr. Scott was of the opinion that Feibelman was insane, because, at the beginning of 1926, he expanded his business operations and took on customers to whom he furnished money who were regarded by witness as unsafe. Feibelman bought a surplus of mules, and took more trips than he had been accustomed to taking; that he ventured into the sawmill business, and replaced an old gin with a new one, and built a hotel on the cost-plus basis, and did most of these things contrary to the advice of the witness.

It does not appear, however, that Feibelman was ever persuaded by any one to do anything which he had not previously determined to do, nor is there any showing that he was ever influenced, overreached or outtraded.

While Dr. Scott thought that Feibelman had used very bad judgment in taking on certain new customers, there is no testimony to the effect that he lost any money on any of them. It was shown that Feibelman bought a good many mules, but it was not shown that he had at any time paid more for any mule than it was worth, and there were witnesses who testified concerning the mules that they did not regard it as even bad judgment for a farmer to have a surplus of mules. Feibelman did sustain a loss on the sawmill, but not a disastrous one. The illusory prospects of operating a sawmill have beguiled many men whose sanity was not questioned. His embarkation in this enterprise was probably induced by the buildings hereafter referred to, including a cotton shed in connection with his new gin. His loss on the sawmill enterprise was augmented, if not caused, by the loss by fire of the mill purchased, which he thereafter rebuilt.

Feibelman did wreck his old gin and build a new one, but there was testimony that the old gin was operated as a wood burner, whereas the new gin generated power more cheaply, and the old gin was regarded as antiquated and about, worn out. No loss was sustained on account of the building of the new gin; on the contrary it was sold at a substantial profit.

Dr. Scott thought Feibelman’s action in building the hotel on a cost-plus basis was a very foolish one, yet the testimony shows that the building was worth its cost, and it was the opinion of the architect that money had been saved by building it in this manner. Persons concerned in the construction of the hotel testified that Feibelman manifested much shrewdness and mastery of detail in the course of the- construction of the building, and attended to the letting of each contract for material. He lost no money on his hotel, and did not begin its construction until he had obtained a lease from- a tenant which assured him: a satisfactory return on his investment.

At the beginning of 19'2'6, when Feibelman changed his business and began to give intensive attention to his planting interests, he bought two expensive saddle-horses, but he does not appear to have sustained any serious loss on these. He also bought a riding-habit, and this fact appears to have excited much comment and commiseration.

Having one automobile, Feibelman purchased another, and it is said he rode around more “than he had ever done before. He drove to Hot Springs in February, 1926, with his family and a negro chauffeur, and, after spending several days at that resort, he returned by way of Camden and Pine Bluff. He drove to New Orleans, but he had done this as early as 1920. He made several trips' •to Vicksburg, and on one occasion stayed overnight without advising his family or any one that he intended to do so. He took a few other trips, but nothing unusual occurred in connection with them. One of his trips to Vicksburg was to attend a rodeo, in which his young son was to be a participant, and he bought his son expensive bridles and a complete and expensive cowboy outfit. He also bought for himself expensive bridles and saddles; but he was shown to have always been a lover of mules and saddle-horses.

He built an expensive henhouse, and a poker table so larffe that it could not be taken into the house except by removing a window. It was shown, however, that he bad long been accustomed to baying* social games of poker at bis borne, and witnesses testified that be bad lost none of bis proficiency in playing* the game even after the time when other witnesses said be was insane.

One of the things done by Feibelman which appears to require explanation, to be consonant with sanity, was that be bad the tails of a pair of mules clipped and then shaved with a safety razor, and their tails powdered with talcum powder, after which be drove the team practically all day over the town, and bad pictures of himself and members of bis family taken with the team and wagon. There appears, however, to be in Eudora an annual affair, known as “'Clean-up Day,” in which the entire population participates and which is treated as a holiday, and it was on this day that Feibelman disported with his mules.

There is much testimony to the effect that, as time passed in 1926, Feibelman became less buoyant and more depressed, and many persons who observed him became convinced that he had become insane. Others who were thrown in contact with him about the same time also noticed his changed demeanor, but their contact with him left the impression that his judgment was unimpaired and that he was a sane man.

After holding his 1925 cotton for a better market, Feibelman disposed of it at a substantial loss. The 1926 season opened with unusual prospects for a good crop, and a good crop was made, but, before it had been gathered, excessive rains reduced its grade, and the anticipated profits were not realized. The spring of 1927 witnessed the most disastrous and protracted overflow which had ever befallen that country, but it is unnecessary to consider Feibelman’s mental condition after that time, because all of the indebtedness here in litigation was incurred prior thereto.

There appears to be but little dispute as to the law of the case, and the decisive question is the one of fact, whether Feibelman’s mental condition was such as to prevent him from understanding the nature and conse-qu enees of his acts in incurring the obligations upon which he has been sued. We have concluded that he was not insane, 'and the decree of the court holding otherwise will be reversed, and the cause remanded, with directions to enter a decree conforming to this opinion.


text:
    Roberts v. State.
    Opinion delivered April 8, 1929.

      David A. Smith, for appellant.

      Hal L. Norwood, Attorney G-eneral, and Pat Mehajfy, Assistant, for appellee.
   McHaNey, J.

Appellant was indicted and convicted of the crime of possessing a still, and sentenced to one year in the penitentiary.

He-seeks a reversal of the case on the sole ground that the court erred in refusing to grant him a new trial on account of newly discovered evidence of which he had no knowledge at the time of the trial. Two witnesses, Owen Bead and Robert Bead, his son, had given certain testimony to the effect that appellant and another had been in the possession of and operating a still 'on Owen Bead’s land in Miller County, Arkansas. The newly discovered evidence brought forth in the motion for a new trial, consisted of the affidavits of Ross Williams and Will Dowd, stating in effect, that they had, on different occasions, purchased liquor from Owen Bead in the presence of his son, Robert Bead and Holder, the other witness for the State.

The court did not err in overruling the motion for a new trial in this regard. Conceding the competency of this evidence, it would only tend to prove that the prosecuting witnesses, or one of them, Owen Bead, was a bootlegger, a matter which would merely go to the credibility of the witness. The prosecuting witnesses were all ne-groes, and the appellant is a white man. Owen Bead was asked on cross-examination if he had ever made whiskey and he answered that he had not, and if the newly discovered witnesses had been present, their testimony would have only tended to prove that Bead had sold whiskey, and not that he made it. Moreover, this court has many times held that it will not reverse the action of the trial court in overruling a motion for a new trial on the ground of newly discovered evidence, which evidence goes only to the credibility of a witness.

In Snetzer v. State, 170 Ark. 175, 279 S. W. 9, the court said that “as this testimony tended only to impeach the credibility of the witness, the court committed no error in refusing to grant a new trial on that account. ’ ’ Citing Morris v. State, 145 Ark. 241, 224 S. W. 724. Numerous cases might be cited to the same effect.

Appellant relies upon the recent case of Huckabee v. State, 174 Ark. 859, 296 S. W. 716, but the facts in that case have no application to the case at .bar. There, the guilty party came into court shortly after Huckabee was convicted, and made an affidavit that he and another, and not Huckabee, were the guilty parties, and that Hucka-bee was innocent, and we held in that case, that while motions for a new trial are addressed to the sound discretion of the trial court, and that it is only in cases of an apparent abuse of such discretion that this court interferes, yet in that case there was such an abuse of discretion as justified this court in reversing the case for a new trial, in order that the guilty men might be convicted and the innocent discharged. No such facts appear in the case at bar, but only such evidence as would tend to impeach the testimony of the prosecuting witnesses.

The judgment must accordingly 'be affirmed.


author: ■Mr. Chief Justice English

text:
    Magruder et al. vs. the State Bank.
    A note given to the Bank of the State of Arkansas, for a debt past due, and payable at a future day, including the interest then due and interest on the whole sum to the day of payment, is not usurious (S. G. Turner vs. Miller, 1 Eng. R. 463.)
    The Bank of the State of Arkansas permitted a debtor to renew his notes, then due, and gave him time upon his debt, in consideration that he would secure it by a mortgage upon property executed by a third person: this was a valid legal consideration for the mortgage.
    Under the act of Liquidation, the Bank of the State of Arkansas was authorized to take mortgages to secure its debts: and if its officers did not strictly follow the directions of the law in taking such mortgages, they are amenable for their conduct; but this would not make the mortgage null and void.

      Appeal from Independence Circuit Court in Chancery'.

    The Hon. Beaufort H. Neely, Circuit Judge.
    Byers, for the appellants.
    We insist, first: That the note and mortgage were executed upon a usurious consideration and void. Upon this point it is only necessary to refer to our Revised Stat. p. 614, sec. 1, 5, 6, 7 and 8. 5 Barber 8. C. Rep. 127, and the current of authorities.

      Second, That the Bank had no authority to make such a contract, and that it was not binding either upon the Bank or Pel-ham or Magruder.
    A corporation has no power except what is given by its incorporating act, either expressly or incidental, to its existence.

      Head & Amroy vs. Providence R. Co., 1 Cond. R. 371. Dartmouth College vs. Woodward, 4. Cond. R. 526. Betts vs. Manard, 1 Breese R. Appx. 14. State vs. Stibbens, 1. Stew. 299. Beaty vs. Knowlton, 4. Peters R. 167,171. Beaty vs. Marine In. Co. 2. Johns. R. 109. People vs. Utica Ins. Co. Johns. R. 358. 7 Wendell R. 34. 2 Cowen R. 699. 2 Barber S. C. R. 107. 4 Barber S. C. R. 127.
    We insist that as Pelham and his securities were solvent and able to pay, that the officers of the Bank had no authority to change the security or to take mortgages or deeds of trust. Because it was only to secure doubtful debts that they had this power.
    And even if Pelham and his securities come within the “ doubtful” list, and they had authority to take a mortgage, they could not extend the time beyond two years.

    See 6th sec., Act approved4th Jan’y, 1845; Acts of 1849, p. 72, sec. 6 — 1853, p. 194.
    S. H. Hempstead for the appellee.
   ■Mr. Chief Justice English

delivered the opinion of the Court.

This was a bill filed by the Bank of the State, in the Independence Circuit Court, against Charles B. Magruder, Charles H. Pelham and Miles Williams, to foreclose a mortgage.

The case made by the bill, is substantially as follows:

On the 2d of August, 1849, Charles H. Pelham executed to the Bank his writing obligatory, of that date, for $6,259 50, due at twelve months, in renewal of certain promissory notes previously made by him to the bank. At the same time, Charles B. Magruder, in eonsideratian of such renewal, and for the purpose of securing the payment of said writing obligatory, executed to the bank, a mortgage upon the north-west quarter of sec. 9, T. 13 north, range 6 W., lying in Independence county, on Polk Bayou, and on which tract were situated, the “ Pelham mills,” subject to the condition that, on the maturing of the writing obligatory, Pelham should have the privilege of renewing it by paying ten per cent, upon the amount due, with advance interest at seven per cent, per annum; and thus to renew from year to year, until the debt was extinguished; and if at the maturity of the bond, or any subsequent renewal thereof, Pel-ham should fail to renew or pay the debt, the mortgage was to become absolute, etc. That Pelham had failed to make any renewal or payment.

That, subsequent to the mortgage, Magruder had made some conveyance of the mortgaged premises to Pelham; and that Williams occupied them as tenant, etc. Prayer for foreclosure and sale, etc.

Williams made default: Pelham demurred to the bill, and Magruder answered. Final decree in accordance with the prayer of th'e bill, and appeal by the defendants.

The points of defence made by the demurrer of Pelham and the answer of Magruder, will be considered together.

1. It is insisted that the mortgage debt was usurious.

The facts in relation to the origin of this debt, seem to be as follows: — Prior to the act of 31st January, 1843, placing the '’Bank in liquidation, Pelham was indebted to the Bank upon notes discounted for him, and renewed 'them under the provisions of the act. In such renewal, he gave his note, with W. L. McGuire, James E. Pelham and Thomas J. Carter, securities, for $4000 00, dated 1st July, 1844, due at twelve months. On the 1st October, 1844, he gave the bank another note, with the two persons last named as securities, for $1,000 00, due at twelve months, in substitution of indebtedness of Joseph H. Eg-ner to the Bank. That some time after these notes were due, the Bank brought suits upon them, against the makers, and while the suits were pending, the Bank and Charles H. Pelham made an agreement that the two notes should be consolidated, that Pelham should pay four years back interest at the rate of eight per cent, per annum, and a curtail of $750, and seven per cent, advance interest for one year, and that he should give a new note payable at twelve months, with the privilege of renewing at the end of each year, by paying ten per cent, curtail on the amount of the debt, and advance interest on the residue at seven per cent, per annum; to secure the payment of which note, Magruder should execute the mortgage, etc.: Thus—

The one note for.$4,000 00

Interest thereon for 4 years at 8 per cent. 1,280 00

The other note for... 1,000 00

Interest added for 4 years at 8 per cent. 320 00

Making.$6600 00

Curtail on this sum. 750 00

Balance due.$5,850 00

Advance interest on this sum at 7 per cent. 409 50

Total.$6,259 50

And according to the above agreement, Pelham gave the bond, and Magruder the mortgage in question to secure to the Bank the amount due to her as by the above statement.

The counsel for the appellants has not pointed out what particular feature oí this contract makes it, in his judgment, usurious; nor have we been able to discover the usury.

The Bank did not charge more back interest upon the two notes of Pelham, renewed by the mortgage bond, than she was legally entitled to. The law allowed her interest at 8 per cent, upon notes payable at twelve months. (Acts of 1838, p. 11.) And where she had to put the notes in suit, as it seems she did Pelham’s notes, she was authorized to collect ten per cent. (Acts 1837 — called session, p. 136.) In the above statement, Pelham is charged with $1,280 on the $4,000 note, and $320 on the $1,000 note, making an aggregate back interest of $1,600. The bond and mortgage bear date 2d August, 1849. The note for $4,000 was due the 1st of July, 1845, and the interest upon it from that time to the date of the mortgage, at eight per cent. was $1,307 52. The note for $1,000 was due 1st October, 1845, and the interest upon it, at the same rate, to the date of the mortgage, was. $307 32, making an aggregate of back interest, actually due upon the two notes, at the date of the mortgage, of $1,614 84, being an excess of $15 84 above the amount of back interest with which Pelham was charged by the agreement between him and the Bank.

The curtail of $750 paid by Pelham did not extinguish the back interest by $850, and this balance of interest was included in the bond, and thus he was subjected to compound interest; but this was not usurious, as decided by this court, in S. & G. Turner v. Miller, 1 Eng. R. 463.

Pelham, instead of paying the advance interest of seven per cent., at the time of executing the bond, according to banking usage, retained it in his own hands, and inserted the amount of it ($409 50) as part of the principal in the bond, which was made payable at twelve months without interest until after due. There was surely no usury in this. It was to his advantage.

2. It is also insisted for Magruder that the mortgage was without consideration and void.

No consideration moving from the bank to him was necessary to make the mortgage valid, tie had the right to bind himself in writing for the payment of Pelham’s debt. The bank permitted Pelham to renew his notes, and gave him time upon the debt, in consideration that he would secure it by Magruder’s mortgage. This was a valid, legal consideration for the mortgage. 2 Kent's Com., 465.

3. It is insisted, moreover, that the mortgage is void, for want of power in the bank to take it.

The bank was authorized by its charter, to take mortgages as collateral security, sec. 6; and to loan money on mortgages upon real property. Sec. 20, 21, 23, 24, Acts 1836, p. 17.

By the act of 31st January, 1843, (Acts 1842, p. 77), placing the bank in liquidation, its corporate existence was not destroyed, but its powers were abridged. Its privilege to discount notes, etc., or to loan money in any manner, (sec. 1) was repealed; but its corporate powers to collect in, and pay off its debts, and to liquidate and close up its business, were continued; (sec. 28. Underhill v. State Bank, 1 Eng. 135.)

By the 10th section of the act, debtors, who might come forward within ninety days after their debts were due (sec. 9,) and pay all arrearages of interest and calls, were allowed to renew their notes for one year, by giving satisfactory security, and paying interest in advance at seven per cent., and the Receivers were required so to regulate the calls on the notes, when they became due, that the debts would be paid off within ten years, by regular annual calls.

By the 12th section, the Receivers were required to keep a vigilant eye upon the debtors, and were made liable upon their official bonds, if debts were lost by neglect or carelessness on their part. And it was made their duty, “ in all cases where the security was doubtful, to obtain, if possible, additional security: and to this end, they might, if necessary, extend the time of payment, and take mortgages and deeds of trust, in the name of the bank, upon any property, either real or personal,” etc. And generally, “ in all cases of doubtful or insolvent debts f the Receivers were authorized “ to pursue such a course, and make such arrangements in regard to them, as their judgment might dictate to be most advantageous to the bank or the State.”

By act of January 4th, 1845, (Acts 1844, p. 47,) the office of Executive Receiver, created by the liquidation act of 1843, was abolished, and the completion of the process of liquidation was entrusted to a Financial Receiver, and an attorney for the principal bank, and each of the branches. By the 3d section of this act, it was made the duty of the attorneys to prepare all deeds, mortgages and other instruments of writing, which they or the Receivers, might deem necessary to promote the interest of the Bank, etc.

The 6th section provides: “ That it shall be the duty of said Receivers and attorneys to keep a vigilant eye upon all persons indebted to said Bank, and if any debt be lost from the evident neglect and carelessness of said officers, they, or each of them shall be held liable on their official bonds: and it shall be the duty of said financial receivers and attorneys, in all cases where the security is doubtful, to obtain, if possible, additional security. To this end, they may, if necessary, extend the time of payment not over tioo years, take mortgages and deeds of trust in the name of the bank, upon any property, real or personal,” etc., etc. * * * * * and, generally, in all cases of doubtful or insolvent debtors, said officers may pursue such a course, and make such arrangements in regard to them, as their judgment may dictate to be most advantageous to the bank.”

It is manifest from these enactments, that the bank possessed express and direct power to take mortgages for the purpose of securing the payment of debts due to her, even if this was not a power incident to her general rights as a creditor to secure and collect her debts by the ordinary legal means allowed to creditors generally.

But the counsel for the appellants takes two specific objections to the validity of the mortgage. The first is, that the bank could only take a mortgage where the security for the debt was doubtful; and it is averred in the answer of Magruder that the securities of Pelham upon the notes for which the mortgage bond was substituted, were good and solvent, and amply responsible for the debts. His counsel also insists that the depositions read upon the hearing prove this to be true; and moreover, that the mortgaged property taken as a substitute for the personal security, which the bank had before, was not worth over $2,000 — not near the value of the debt.

We are not sure that the depositions prove that the officers of the bank had no grounds to doubt the solvency of Pelham’s securities at the time the mortgage was taken. W. L. McGuire seems to have been regarded as the most responsible one of the securities, and yet it appears that his indebtedness, at the time, as principal and security, amounted to over $25,000, most of which was in suit; and the witnesses do not value his property at so large a sum. But let all be conceded that is claimed by the counsel for the appellants, and the argument amounts to this: the bank had safe and sufficient personal security for Pel-ham’s debt, but her officers unwisely and by mistake, or in disregard of the duties imposed on them by law, surrendered the personal security, and took Pelham’s individual bond for the debt, with Magruder’s mortgage upon property not worth half the amount of the debt, therefore the mortgage is null and void, and the bank must lose the only security which she now has— in other words, that by an improvident arrangement of her officers, she has lost part of her debt, and therefore she must lose it all! This can be neither good law, nor sound logic: the statement of the argument refutes it.

■ The second specific objection to the validity of the mortgage, taken by the counsel of appellants, is that it extends the time of payment'for ten years, when, by the 6th section of the act of January 4th, 1845, above copied, the officers of the bank were not authorized to extend the time of payment, upon mortgage, more than two years.

This provision of the Statute must be regarded as directory, and there is no good reason, founded in public policy, why a departure from it should make the contract null and void, as in cases of contracts made in violation of the gaming or usury laws, or other laws affecting public morals.

If the officers of the Bank did not strictly follow the directions of the law in taking the mortgage, they are amenable to the appropriate authorities for their conduct, but there is no principle of law, applicable to such cases, that would warrant us in holding the mortgage to be null and void.

The decree of the court below is affirmed: and the time fixed by the court for the sale of the mortgaged property having passed, the cause will be remanded, with instructions to the court to make the necessary orders to execute the decree.