author: Humphreys, J.

text:
    Clayton v. Clayton.
    Opinion delivered December 1, 1924.
    1. Divorce — appeal prom order as to custody op child. — An ■ appeal will lie from an order concerning the custody of a child, made subsequent to a decree of divorce.
    2. Divorce — estoppel against appeal. — The fact that appellant filed a motion to modify an order as to the custody of her child, which motion was dismissed without a hearing, did not estop her from appealing from such order.
    3. Divorce — order as to child’s custody. — An order taking the custody of a seven-year-old child from its mother and sending her to a distant school outside the chancery district, made without notice to the mother, was erroneous.
    Appeal from Sebastian Chancery Court, Port Smith District; J. V. Bourland, Chancellor;
    reversed.

      Roy Gecm and J. A. Gallaher, for appellant.
    The court’s order of September 4, 1924, is void for the reason that such order was entered without any legal testimony to support it. 124 Ark. 579. The order was final and appealable. 124 Ark. '579. The order was void for want of notice to appellant. C. & M. Dig., § 6238; 69 Ark. 587.

      Arnold & Arnold, for appellee.
    Conceding, for argument’s sake, that the order was void, appellant, on her motion to set same aside, did not allege a valid defense nor offer to prove any. 90 Ark. 86. See also 83 Ark. 17; C. & M. Digest, § 6293. ’
   Humphreys, J.

This is an appeal from an order made by the chancery court of the Fort Smith District of Sebastian County, on September 4,1924, awarding the custody of Dorothy Clayton to-her father, Joe O. Clayton, for the purpose of taking her to Texarkana -and entering her in the Patty Hill School, during the term which began September 8 of this year. On August 17, 1923, Nellie Clayton, the wife of Joe O. Clayton and mother of Dorothy Clayton, a girl child seven years of age, obtained an absolute decree of divorce from Joe O. 'Clayton upon, the ground that he had offered such indignities to her person as rendered her condition in life intolerable. In that decree the custody and care of the child was awarded to the mother, with privilege to the father to have the child one day every two weeks.

On June 10, 1924, Joe O. Clayton filed -a motion to modify the order made in said decree with reference to the custody of -said child, asking that he be given the custody of her for the-purpose of placing her in a school, and alleging, in support of the motion, that he had changed his conduct of life. On July 14,1924, the motion was heard, and an order was made leaving the child in the temporary custody of her mother, Nellie Clayton, with privilege to the father to have the custody of the child one-half the time, and taking under advisement that part of the motion requesting the privilege -of placing her in some school of his own selection. With reference to this feature of the motion the decree contains the following paragraph:

“It is further ordered -that, when defendant shall have arranged for the placing of the child in a school of his choice, he submit the same in writing to the court, on notice to plaintiff; provided that, in any such plan, defendant make due provision for the privilege of plaintiff to visit the child, at stated reasonable times, including the reasonable expense thereto to plaintiff. Accordingly, this hearing, so far -as defendant’s motion to be awarded the privilege to place the child in school -of his choice is concerned, is continued.”

On September 4, 1924, without any notice having been given to Nellie Clayton, and without knowledge on her part, the court entered an order permitting,Joe O. Clayton to place his daughter in the Patty Hill School at Texarkana, at the term beginning on September 8. There was a provision in the order directing the sheriff to deliver Dorothy to her father for that purpose, and requiring him to return -her to Port Smith at the expiration of the term, for orders touching her custody during the vacation period. This is the order from which an appeal has been prosecuted to this court, and is an order from which an appeal will lie. Weatherton v. Taylor, 124 Ark. 579. A motion was subsequently filed by Nellie Clayton upon notice to Joe O. Clayton for a modification of the order, but, as we understand from the reading of the order dismissing the motion, it was summarily dismissed without a hearing thereon, because the allegations therein called for a reiteration of testimony which had theretofore been heard by the learned chancellor and of facts with which he was familiar. We cannot agree with counsel for appellee that the motion which Nellie Clayton filed to modify the order entered on September 4, and which was summarily dismissed by the court on the 19th of September, has estopped her from taking an appeal from the order entered on September 4, which, as heretofore stated, was an appealable order.

We think the court erred in entering the order of September 4 without a notice to or without the knowledge of Nellie Clayton, to whom the custody of her child had been awarded, until a plan for schooling her had been matured and presented to the court by Joe O. Clayton, after notice to Nellie Clayton. The order of the court of date July 14 contained a provision that she should have notice when the plan for educating the child should be presented to the court for consideration. The plan presented to and adopted by th’e court had the effect of sending the child to a distant city and into another chancery district, which would necessarily result in depriving the mother of seeing and1 visiting her seven-year-old daughter at reasonable times and opportunities. The order was of vital importance to the mother as well as the child, because it severed, for the time being, the natural tie between mother and daughter, and should not have been entered without an opportunity to the mother to be heard. The evidence upon which the order was based was taken orally before the court, in the absence of Nellie Clayton, so she had no opportunity to make up a bill of exceptions which might enable her to present the case heard by the trial court, to this court for trial dé novo on the merits. She should have been accorded this privilege.

On account of the error indicated the order is reversed, and the cause is remanded for proceedings not inconsistent with this opinion.


source: Caselaw Access Project

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

license: Public Domain

text:
    Gordon v. Reeves.
    Opinion delivered December 8, 1924.
    1. .Courts — additional chancellor.. — Acts 1923, No. 372, providing for an additional chancellor for the seventh chancery circuit and for a division of courts in such circuit into two divisions, did not create a new court, but merely a division of the regular court with another chancellor to hold it.
    2. Courts — failure to open court at beginning op term. — Failure to open court at one of two divisions of the seventh chancery court created by Acts 1923, No. 372, at the beginning of the new term fixed by Special Acts 1919, No. 10, did not prevent holding the court at a later date, in view of § 8 of the 'former act providing that the court of such division shall be open for the transaction of business at all times.
    3. Courts — regulation of terms of court. — There is no constitutional restriction upon the power of the Legislature to regulate terms of court, except that one term must be held in the county during the year.
    4. Appeal and error — exchange of judges — presumption.—Where the opening order of court recited that court was opened and was being held by a chancellor on exchange of circuits, it will be ■presumed, where the question of regularity was not raised below, that the statute relating to exchange of judges (Crawford & Moses’ Dig., §§ 2204, 2224) was complied with, notwithstanding the failure of the record to set out an agreement for exchange of circuits.
    5. Appeal and error — affirmance notwithstanding erroneous reason. — A correct decree will be affirined, regardless of the reasons • on which it is based.
    6. Vendor and purchaser — right to repurchase — waiver of forfeiture. — Where a creditor, on taking a deed from his debtor, gave him a right within a stipulated time to repurchase the land on payment of the debt, and permitted him to remain in possession' after that time and accepted the proceeds of his crop, applying same to his account and charging the taxes to the debtor, he will be held to have waived the stipulated time for repurchase. -
    7. Appeal and error — effect of failure to cross-appeal. — -Sufficiency of evidence to sustain a finding in favor of appellants will not be considered where appellees did not prosecute a cross-appeal.
    Appeal from Oiiaebita Chancery Court, Second Division; John E. Martineau, Chancellor on exchange;
    affirmed.

      Sam T. $ Tom Poe, and Smead S Meelc, for appellant ; Chas PL. Blish, of counsel.
    An absolute deed delivered in payment of a debt is not converted into a mortgage merely because the grantee therein gives a contemporaneous stipulation binding Mm to reconvey on being reimbursed, within an agreed period, an amount equal to the debt and interest thereon. Jones on Mortgages, 7th ed., vol. 1, p. 342, par. 265, and p. 349, par. 267; 75 Ark. 551; 27 Cyc. 998; Id. 1010. The legal presumption is always against the commission of fraud, which must be affirmatively proved. 27 C. J. 44. The deed being absolute in form, the burden was on appellee to show that it was a mortgage. 105 Ark. 314; 27 Cyc. 1017, 1018. To justify a court in holding that a deed absolute in form was intended as a mortgage, the proof to that effect must be clear, consistent, unequivocal, satisfactory, and convincing. 27 Cyc., p. 1025; Id., p. 1024; Blue Book on Evidence (Jones), vol. 1, par. 50, p. 247; 163 Ark. 157. The decree rendered was not warranted by the pleadings. No relief can be granted under a general prayer which is not consistent with the main theory and purpose of the bill and supported by its allegations. • 21 C. J. 682; 90 Ark. 241; 7 Ark. 530; 7 Ark. 516; 13 Ark. 187; 30 Ark. 628. The amendment to the complaint alone stated a cause of action, and its effect was to withdraw the facts and issues raised in the original complaint.
    Courts take judicial cognizance of terms of courts. 34 Ark. 576. It was not the^intention of the Legislature by act 372, Acts 1923, p. 333, to create a new court, but a branch of the established court. A perpetual court was not intended, as the idea is excluded by act 7, § 12 of the Constitution. By law a new term of court was to commence on June 18. An adjournment was taken from Jhine 15 to June 25, a period within the next term, and the regular term commencing June 18 was never formally opened, and consequently had lapsed. C. & M. Big., § 2209-10. The action of Judge Martineau on June 27 could not therefore, under the circumstances, be sustained as the act of a de facto judge. 71 Ark. 310. No written agreement for exchange of circuits being on file on or prior to the date'of the trial of this cause, Judge Martineau was without authority to try. the case. Section 2224, O. & M. Digest. All evidence showing a verbal agreement, for exchange of circuits is incompetent. Authority could be proved only by the record of the statutory exchange agreement. See the following cases on authority of special judges, etc: 72 Ark. 320; 52 Ark. 113; 70 Ark. 497; 79 Ark. 248; 19 Ark. 96; 19 Ark. 100; 91 Ark. 582; 118 Ark. 310; 125 Pac. 609; 6 S. E. 700; 21 Fla. 346; 67 Ga. 246; 1 S. E. 876; 33 Pa. 338; 65 N. O. 511; 66 Ga. 715; 40 Ala. 629; 6 S. W. 40; 17 Ind. 67; 53 Mo. 88; 78 S. W. 110; 141 Ark. 201; 6 Ark. 227. Appellant is not estopped to raise here the question of the authority of Judge Martineau to try the ease, as this would be equivalent to holding that consent imparts judicial power. 45 Ark.-478; 39 Ark. 254; 50 Ark. 344; 145 Ark. 604; 79 Ark. 284. It is elementary that the court cannot by nunc pro tw%c make the record speak what it should have spoken. 92 Ark. 299; 87 Ark. 439; 118 Ark. 310.

      D. D. Glover and D. M. Halbert, for appellee.
    The fact that the account has never been balanced shows that it is an existing debt and that the intention of the parties was to secure the debt by giving a mortgage which was written in the form of a deed. 75 Ark. 551. The fraud practiced in securing the instrument was sufficient to overcome the presumption that the paper was intended to be a deed, instead of a mortgage. 159 Ark. 257.
   McCulloch, C. J.

Adam Reeves, one of the appellees, was, on March 23, 1916, the owner in fee simple of the tract of land in controversy, which contains about seventy-eight acres, and is situated in Ouachita County, Arkansas. On that date he was indebted to the estate of George L. Ritchie, deceased, in the sum of $347.60 on open account, and he executed to appellant Gordon, as executor of the estate of Ritchie, a deed conveying said land in fee simple for the consideration of the extinguishment of said debt to the Ritchie estate. On the same day, and contemporaneously with the execution of said deed, Gordon executed to appellee Reeves a written instrument whereby he agreed to give said appellee the right to repurchase said land within two years from that date on payment of the sum of $347.60 with interest from date, and that, upon payment of said sum, he would execute to said appellee a deed reconveying said land to him. This instrument was delivered by Gordon to Reeves, and the latter kept it thereafter in his possession. Adam Reeves remained in possession of the land and cultivated the same, and so continued until the present time.

This action was instituted by appellee Adam Reeves and his wife against appellant Gordon, and others claiming an interest, in December, 1922, alleging that the deed executed by Reeves to appellant Gordon was intended as a mortgage and praying an accounting of the amount due, and a decree as to the rights of redemption. Appellees alleged' in their complaint that they are ignorant persons, and that they were induced to execute said deed under the false and fraudulent misrepresentations made to them that it was a mortgage; that the written instrument executed by appellant Gordon and delivered to them was represented to be a copy of the mortgage, and that they did not receive any information to the contrary, being permitted to remain unmolested in posses- " sion of the land, until some time during the year 1922, when a vistor at their home looked at the paper and called their attention to the fact that it was not a copy of a mortgage, but that it was a contract of different import. Appellee also alleged that, after the execution of the deed in March, 1916, they continued in possession, as before stated, and that, during the year 1916, they harvested two- and a half bales of cotton of the market value of $375, and in the year 1917 harvested one and one-half bales of cotton of the market value of $225, and in the year 1918 harvested a bale of cotton with a market vain** of $125, all of which was delivered to appellant Gordon to be credited on the supposed mortgage.

On the trial of the issues, appellees testified themselves and introduced other witnesses tending to support the allegations of their complaint that they were led to believe that the deed executed by them was a mortgage, thát they did not receive information to the contrary until the year 1922, and that they had delivered the quantity of cotton of the value mentioned above to appellant Gordon during the years mentioned.

Appellants introduced testimony tending to show that there was no misrepresentation concerning the character of the instruments, and appellant Gordon also intro•duced his accounts showing supplies furnished to appellees during the years 1916, 1917, 1918 and 1919, and the amount of cotton delivered for credit of the proceeds on the account. This account shows that only one bale of cotton was delivered in the year 1916, one bale in 1917, together with a small cash payment, and a bale in the spring of 1919 of the crop of 1918.

On the trial of the cause the court found that the deed was intended as a mortgage, having been given to secure a debt due the estate of Ritchie, and entered a decree declaring the same to be, in effect, a mortgage, and permitting appellees to redeem therefrom by paying the sum of $347.60 with interest, which was declared to be a lien upon the land. The appellees have not appealed or cross-appealed.

It is contended, in the first place, that the decree is void, and should be reversed for the reason that the court was not in session on the day the decree was rendered and that there was no authority for the court to sit on that day. This contention involves an interpretation of the statutes in regard1 to holding courts in Ouachita County.

The terms of the chancery court of Ouachita County were fixed by act No. 10 of the session of 1919 to begin quarterly on the third Mondays in March, June, September and December. The General Assembly of 1923, at the regular session, enacted a statute (act No. 372) providing for an additional chancellor for the seventh chancery circuit, which includes the counties of Ouachita and Union. The statute provides for the division of these courts in Ouachita and Union counties into two divisions, to be known as the first and second divisions, and provides for the appointment of another chancellor to hold the second division of the court. Section 8 of the statute reads as follows: “For the purpose of expediting business in said second division of the chancery court of Union and Ouachita counties, the court of said division shall be always open for the transaction of business, and may sit in either county and may hear and try causes at the same time and .in the same county where the first division may be in session.” The present case was heard and the decree rendered on June 27, 1923. It appears from the record before us that Honorable George M. LeCroy, the chancellor of the second division, held court on June 15 and adjourned over to June 25, which was after the commencement of the June term according to the original statutes, which began on June 18. On June 25 a special chancellor was elected to hold the court for that day, and adjourned over to June 27, when the court was opened by Honorable John E. Martineau, chancellor of the first circuit, on exchange with 'Chancellor LeOroy. The court was not opened on June 18 nor on. any day thereafter until June 25, when, as before stated, the court was opened and a special chancellor was elected.

The contention of counsel for appellants is that there was no intention on the part of the lawmakers to create a new chancery court, but merely to provide for a división of the regular court by the appointment of a chancellor to hold the second division, that the terms of court as established by the prior statute were not repealed or affected by the new statute authorizing* holding* of court at any .time, and that the term necessarily lapsed when the day came for the holding of the new term. The further contention is that if the court was not opened for the new term within the three days specified by the general statute, there was no authority for holding the court on the day on which this decree was rendered.

We are unable to agree with the whole of the contention of learned counsel. They are correct, we think, in saying that there was no new court created, but merely a division of the regular court, with another chancellor to hold it. But we cannot agree with their contention that the failure to open court at the beginning of the new term prevented the holding of court at any later date pursuant to the provisions of the statute creating the division and authorizing the holding of the court at all times. The statute creating the terms of the court applies to both divisions, and one term ends with the beginning of the new term, so that all judgments become final, but it wás within the power of the Legislature, notwithstanding the creation of the regular term, to provide for the holding of the court at any time. There is no constitutional restriction upon the power of the Legislature to regulate terms of court except that a term of court must be held in each county during the year. Parker v. Sanders, 46 Ark. 229. We hold therefore that the court was in session on the day that this case was heard and the decree rendered.

It is next contended that the decree is void for the reason that the record' does not show that the agreement between Chancellor LeCroy and Chancellor Martineau for exchange was in writing and entered on the record as provided by statute.

The statute (Crawford & Moses’ Digest, § 2224) provides that judges of the circuit court may, by agreement, exchange circuits and hold court for each other for such length of time as may seem practicáble, etc., and that “such agreement shall be signed by the judges so agreeing, and entered on the record of the court or courts so to be held.” Another statute (Crawford & Moses’ Digest, § 2204) provides that chancellors “may exchange and hold court for each other as in the ease of circuit judges.” The record shows that, at the time the appeal was perfected, the opening order of the court recited that “court met pursuant to adjournment, present and presiding Honorable John E. Martineau, Chancellor of the First Chancery ’Court District of Arkansas, and the following proceedings were had, to-wit.” There was a blank space in the record, which has been shown in an ancillary proceeding to have been left for the time being as a space in which the agreement of the two chancellors was to be entered, and there has been brought up on certiorari an additional record showing a nunc pro tunc order made by the regular chancellor after this appeal had been perfected, entering the agreement nunc pro time. An appeal has also been taken by the appellants from that order.

Without baking into account the effect, if any, which might be given to the nunc pro tuno order, and disregarding that order altogether, we are of the opinion that the decree cannot be avoided on the ground that there is no affirmative showing in the record of the entry of a written agreement of the chancellors to exchange. The statute authorizing the election of a special judge, in the absence or disqualification of the regular judge, provides that such election 'shall be held by the clerk and the members of the bar, and that “the proceedings shall be entered at large upon the record where a special judge is elected.” Crawford & Moses ’ Digest, § 2226. 'Counsel for appellants rely upon decisions of this court holding that, in case of an election of a special judge, the record must affirmatively show compliance with the 'statutory requirements, otherwise the judgment is void for want of jurisdiction. Dansby v. Beard, 39 Ark. 254; Gaither v. Wasson, 42 Ark. 126; Wall v. Looney, 52 Ark. 113; Arkadelphia Lbr. Co. v. Asman, 72 Ark. 320, 79 Ark. 248. The basis of those decisions was the well established rule that judicial power cannot be conferred by consent of parties in the absence of statutory authority, and that all the statutory requisites in regard to conferring power upon special judges must be complied with, otherwise the proceedings are void, and, in the absence of a showing of such compliance, no presumption will be indulged in favor of the record. That is not a proper basis, however, for testing the record of a trial before a judge on exchange of circuits, for a judge or chancellor on exchange of circuits is already a sworn officer of the law and clothed with judicial power, and the presumption that every officer has complied with the law in the performance of his duties, until the contrary appears, should be- applied on appeal from a judgment rendered by a judge or chancellor on exchange of circuits. McCamey v. Wright, 96 Ark. 477; Cotton v. White, 131 Ark. 273; Wallace v. Hill, 135 Ark. 353. That presumption is conclusive unless it affirmatively appears from the record that there was no proper exchange of circuits and that the question of irregularity was raised in the proceedings below. That is the rule that was applied by this court in disposing of a challenge made here, for the first time, of the disqualification of a trial judge and the election of a special judge, and we held that the question could not be raised here for the first time. Blagg v. Fry, 105 Ark. 356. See also Fernwood Mining Co. v. Pluna, 136 Ark. 107. There was no question raised below as to the regularity of the agreement for exchange of circuits /between Chancellor Le'C'r-oy and Chancellor Martineau, and the authority of the latter to hold the court cannot be questioned here for the first time, the presumption being indulged conclusively that the exchange was regular and in compliance with the statute. The opening order of the court recites the fact that the court was opened and was'being held by Chancellor Martineau on exchange, and this is sufficient to raise the presumption that he was holding court rightfully under an agreement with the regular chancellor.

This brings us to a consideration of the merits of the litigation, and we are of the opinion that the court reached, the right conclusion — that is to say, a result as favorable to appellants as the testimony warranted. It is immaterial whether or not the decree was based upon proper grounds, for, if it was a correct decree, it should be affirmed. Without discussing the grounds upon which the decree is based, we are of the opinion that it was correct for the reason that, according to the undisputed proof, Gordon, the holder of the legal title, who executed the contract with appellees for a resale of the property, waived the time limit for exercising the right of repurchase,-even if time be treated as of the essence.of the contract. He permitted appellees to remain in possession of the property under the contract.for repurchase and has never demanded possession; he accepted the proceeds of all the crops raised on the place for three years, and applied the same on the running account of appellees, and also charged the taxes on the land to appellees on that ■ account. This conduct on his part was a recognition of appellees-’ rightful possession of the land under the contract, which was the sole evidence and limit of their rights in the premises, and he is therefore deemed to have waived- the time specified for exercising the right of repurchase. Banks v. Bowman, 83 Ark. 524.

There is a sharp conflict in the testimony as to the amount and market value of the cotton delivered by appellees to appellant Gordon. The testimony of appellees, which is corroborated by the testimony of other witnesses, tended to show that the value of the cotton delivered during the years 1916,1917 and 1918 was more than sufficient to pay off the original debt as well as the account for supplies, but this is contradicted by the testimony of appellant Gordon and another witness, and, since the finding of the chancellor in decreeing a lien on the land for the amount of the original debt is in favor of appellants, and no appeal or cross-appeal has been prosecuted by appellees, we need not pass upon the weight of the evidence on that issue.

It follows from what we have said that the decree should be affirmed, and it is so ordered.

concurring opinion.

Hart, J.

I agree to the result in the majority " opinion, 'but dissent from that part of the opinion which, by implication at least, overrules our former decision's to the effect that it is essential that the objection to the jurisdiction óf a special judge' should he made in the court in "which lie assumed to have jurisdiction.

In the case of Caldwell v. Bell & Graham, 3 Ark. 419, it was held that, where the record shows that the judge who presided upon the trial was specially commissioned for'that purpose, and, nowhere contained any statement or presumption by which his power or authority can be questioned, the Supreme" Court is bound to presume that he acted in obedience to his authority.

This principle was reaffirmed in Adams v. State, 11 Ark. 466, in a case where there was an exchange of circuits by two judges.

In Sweeptzer v. Gaines, 19 Ark. 96, it was held that, in order to present any question in the appellate .court,, as to the right of a special judge to preside in the trial of a cause, his power must be questioned in the court' below, and the grounds of the objection stated in the record.

Again, in White v. Reagan, 25 Ark. 622, the court said :

“It is the well-settled rule of this court, which’we shall not disturb, that a party may question the authority of an individual to try his case as a special judge; and, if the objection is overruled, the grounds of the objection, and the authority of the judge, may be spread upon the record, by a bill of exceptions, in order to enable this court to determine his right to exercise the powers of a special judge in the case. Rives v. Pettit, 4 Ark. 582; Adams v. State, 11 Ark. 466; Sweeptzer v. Gaines, 19 Ark. 96.”

The doctrine of those- cases was expressly reaffirmed in Blagg v. Fry, 105 Ark. 356, and Fernwood Mining Co. v. Pluna, 136 Ark. 107.

There is a seeming departure, from this rule in the announcement of the court in Wall v. Looney, 52 Ark. 113. The facts upon which the ruling of the court is based are not stated, but, when we consider the cases cited in the brief, we do not think there was any departure from the rule. Dansby v. Beard, 39 Ark. 254, and Gaither v. Wasson, 42 Ark. 126, are cited and apparently followed. In both of these oases the infirmity was shown on the face of the record, and the court properly reversed the judgment on that account.

The case of Arkadelphia Lumber Co. v. Asman, 72 Ark. 320, has no bearing either way. In that case the record.did not show that a special judge presided in the trial, and the appellate court indulged the presumption that the regular judge presided.

The result of our former decisions, to my mind, is that, in case of a special judge, or in case of a judge in the exchange of circuits, the record should show the requisite facts; but, in the absence of such showing upon the face of the record, or by a bill of exceptions showing that the objection was made in the court below, the legal presumption is that all the requisitions of the law have been complied with. A court of record, whether presided over by a regular judge, or by a special judge, or a substituted judge in the exchange of circuits, is a court of superior jurisdiction, and all legal presumptions in favor of its jurisdiction will be presumed. Every person improperly subjected to the jurisdiction of such court, in the case of a special judge or a judge in the exchange of circuits, may relieve himself by- proper objection to the jurisdiction; but he cannot subject the public to the expense and trouble of a trial on the merits, and then be allowed, for the first time, in this court, to demand a hearing on the jurisdictional question after he has proved to be the loser in speculating on the chances of such a trial. '


author: Hart, J.

text:
    Houck v. State.
    Opinion delivered December 15, 1924.
    1 Statutes — implied repeals. — Repeals by implication are not favored.
    2. Statutes — implied repeals. — To constitute a repeal by implication, two acts must be on the same subject, and plainly repugnant, in which case the later act, even without a repealing clause, operates, to the extent of such repugnancy, as a repeal of the first.
    3. Statutes — effect of amending act. — Special Acts 1923, No. 173, § 1, amending Special Acts 1919, No. 510, § 10, “.so as to read as follows,” etc., repeals everything in § 10 not reenacted, and must be construed as if originally enacted in the amended form.
    4. Animals — repeal of stock law. — Acts 1915, No. 156, providing generally for creation of live stock districts in .Columbia County, did not repeal Special Acts of 1923, No. 173, as applied to that county, until the prescribed action is taken by a majority of the electors of any township therein.
    Appeal from Columbia Circuit Court; L. S. Britt, Judge;
    affirmed.

      Henry Stevens and Kitchens & Upton, for appellant.

      J. S.- Utley, Attorney G-eneral, and Barden Moose, Assistant, for appellee.
   Hart, J.

C. N. Houck prosecutes this appeal to reverse a judgment of conviction against him for permitting his stock to run at large, in violation of the statute.

The Legislature of 1915 passed an act for the creation of districts wherein live stock might be prevented from running at large, and the validity of the act was sustained in Harrington v. White, 131 Ark. 291. The Legislature of 1919 passed an act to provide a stock law and regulate tlie operation of the same in Columbia County. 'Special Acts of 1919, p. '648. It was claimed that this act repealed the act of 1915 referred to above, and in McIlvene v. Warren, 150 Ark. 627, it was held that the statute of 1915 was not repealed or suspended until there was a complete adoption of the statute of 1919 in the whole of Columbia County. In other words, it was held that, until the new act had been voted on and adopted, it' was to be considered as an accumulative act.

The Legislature of 1923 passed an act for-the purpose of amending § 10 of special act No. 510 of 1919, in the method of voting for or petitioning for or invoking the stock law as applied to Columbia County. Act 173- of tire''Special Acts of 1923, p. 328.

Section 1 of this act provides that § 10 of act 510 of the Special Acts of the G-eneral Assembly of 1919 be amended so as to read as follows:

“Section 10. If it is shown by the return of any election under this act that a majority of the electors of any township or any number of townships vote for ‘stock law’ four months thereafter, this act shall be íd operation in such township or townships; but, if a majority of the electors of any township in Columbia County, where this act is not now in operation and effect, file a petition ‘for stock law’ before the general election in 1924, with the county clerk of said county, four months after date of such filing, this act shall become operative and be in full force and effect in such township or townships until suspended by a vote of the electors as in this act provided. Where a majority of the electors of any township or townships in Columbia County, Arkansas, in which this act is now in operation and effect, file a petition ‘against stock law,’ before the general election in 1924, with the county clerk of Columbia County, Arkansas, four months after the date of such filing’, the operation of this act shall be suspended in such township or townships, until put in force and effect by a vote of a . majority of the electors of any township or townships as in this act provided. By this act it is intended to provide a method by which and a law under which the citizens of Columbia County, Arkansas, may, within any locality, control and regulate the restraining and running at large of horses, mules, asses, goats, sheep, geese, jennets, and cattle and hogs. ’ ’

The act was approved February 23, 1923, and it is claimed by counsel for the defendant that it repealed the act of 1915 referred to above, in so far as Columbia County is concerned. No election was-held or petition filed under the provisions of § 1 of act 173 of the Legislature of 1923. •

The case was submitted to the circuit court without a jury, and the court found the. defendant guilty of permitting his stock to run at large, in violation of the provisions of act 156 of the Legislature of 1915, and assessed his punishment at a fine'of'$5. ' ■ ’ '

The facts sustained the finding of the circuit court, and the sole question raised by this appeal is Whether or not act 173, passed by the Legislature of 1923,. repealed ■act-156, enacted by the Legislature of 1915, in so far as it affects' Columbia County.

There has been no express repeal of the act of 1915 ■referred to; and repeals by implication are not favored. To produce this result, the two acts -must be upon the same subject and there must be a plain repugnancy between their provisions, in which case the latter- act, without the repealing clause; operates, to'the extent of repugnancy, as a repeal of the first. Coats v. Hill, 41 Ark. 149; Blackwell v. State, 45 Ark. 90; Sanderson v. Williams, 142 Ark. 91; Bank of Blytheville v. State, 148 Ark. 504; and Aetna Casualty & Surety Co. v. North Little Rock, 157 Ark. 291.

Tested by this rule, we do not think that the act of 1915, under which thé defendant was convicted,'was repealed by the special act of 1923 copied above. As we have already seen, an act cannot be repealed by implication, unless the implication necessarily follows from the language used.

. In Wood v. United States, 16 Pet. (U. S.) 342, Jndg*e Story said:

“We say by necessary implication; for it is not sufficient to establish that subsequent laws cover some or even all of the cases provided for by it; for they may be merely affirmative, or cumulative, or auxiliary. But there must be a positive repugnancy between the provisions of the new law and those of the old; and evexi then the old law is repealed by implication only pro tanto to the extent of the repugnancy.”

Section 1 of the special act of 1922 purports to amend § 10 of the special act of 1919, “so as to read as follows,” and thereby repeals everything contained in said § 10 not reenacted; and the amended statute is to be construed as if the statute had been originally enacted in the amended form.

The general act of 1915 is to be superseded by the operation of the special act of 1923 upon the occurrence of a definitely specified contingent event, and that event is. the action of the majority of the people in any township or townships in Columbia County. Therefore, it will be seen that the general act is to be repealed by legislative authority exercised, through the electors of the various townships of Columbia County as its chosen agency. The1 operation of the general statute is not suspended until the special act of 1923 is put in operation by some act of the electors in the way specified in the statute. Until the prescribed action is taken by the electors of any township or townships, the old statute is in force, and the new statute is merely cumulative or auxiliary to it.

In Jacksonville v. Bowden, 67 Fla. 181, 64 So. 769, Ann. Cas. 1915D, p. 99, the Supreme Court of Florida held that a statute may be, in whole or in part, repealed or superseded or abrogated by implication of law, as the result of the due enactment of a subsequent statute covering the same subject, or by the operation of a later statute upon the occurrence of a definitely specified contingent event.

The result of our views is that the judgment of the circuit court was correct, and should be affirmed.


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

text:
    Replogle v. Little Rock.
    Opinion delivered November 10, 1924.
    1. Constitutional law — restriction op occupation. — A statute, or municipal ordinance enacted pursuant thereto, which restricts the right to engage in the occupation of plumbing, must find justification in the fact that such statute or ordinance is necessary to promote _ the general welfare.
    2. Constitutional law — doubts as to constitutionality.— When statutes and municipal ordinances pursuant thereto have been enacted purporting to protect the health and welfare of the community, all doubts as to the constitutionality of such legislation must be resolved in its favor, unless it appears that the statute or ordinance is clearly outside the scope of the organic law, which is over all departments of the government.
    3. Constitutional law — police power. — The occupation of plumbing peculiarly affects the public health, and it is within the State’s police power to regulate the manner in which it shall be conducted.
    4; Constitutional law — regulation of plumbing. — Acts 1911, No. 285 (Crawford & Moses’ Dig., §§ 7621-7637) providing for municipal boards of plumbing examiners and regulating the occupation of plumbing, is unconstitutional, in that it contains no provisions prescribing the manner in which cities ■ shall regulate the plumbing department, and allows them to adopt arbitrary tests having no relation to the preservation of the public health.
    5. Constitutional law — test of constitutionality. — The constitutionality of an act must be tested, not by what has been done under the act, but by the power actually conferred and what might be done under the act.
    6.. Constitutional law — municipal regulation op plumbing.— While municipal corporations, under the general welfare clause (Crawford & Moses’ Dig., § 7494), may require those who pursue the avocation o'f plumbing to perform their work ’ in such manner as not to endanger the public health and safety, they have no power under that statute to prevent any one from engaging in that avocation or to place restrictions upon them, so long as their work is not done in a manner detrimental to the public welfare.
    7. Statutes — partial invalidity. — Provisions of Acts 1911, No. 285 (Crawford & Moses’ Dig., §§ 7624-7637), relating to plumbers’ examining board, its powers and duties, are not separable from the remainder of the act, so that the act is void as a whole.

      Appeal from Pulaski Chancery Court; Verne McMillen, special Chancellor;
    reversed.

      Gus Fulh and Martin K. Fulh, for appellant.
    1. The statute regulating plumbing is void, as being offensive to the Fourteenth Amendment to the Constitition of the United States. It does not .necessarily follow that, if the matter o.f plumbing affects the public health, it constitutes a proper subject for the exercise of the police power. There is here a reason sufficient to prohibit the exercise of that power, viz., the inalienable right of a citizen under the Fourteenth .Amendment. The act in question provides for a board which , may make its own rules and regulations, and, under such rules and regulations, it is possible, in the discretion.of the board, to make the examination as rigid as is imaginable —may even require an applicant to exhibit expert knowledge; in short, require of him not only to be a plumber, but also a sanitary expert. The Legislature cannot delegate to a board a greater authority than possessed by itself. Cooley on Torts, '277; 1 Tiedeman on Federal Control of Persons & Property, 236; 74 N. Y. 515; 111 U. S. 746, 4 Sup. Ot. Rep. 652; 42 Wash. 237, 84 Pac. i815, 5 L. R. A. (N. S.) 674; 144 N. Y. 529, dissenting opinion of Mr. Justice Peckham, 27 L. R. A. 718; 39 N. E. 686; 198 U. S. 45, 49 L. ed. 937, 25 Sup. Ct. Rep. 539.
    2. .A statute which punishes as a misdemeanor the violation of rules to be made by a board of examiners is an unlawful delegation of authority, and is too broad, indefinite and uncertain to be sustained. 144U. S. 677; 116 Fed. 650; Id. 654; 146 Fed. 306; 170 Fed. 205; 45 Ark. 158, 164; 138 Ark. 137.
    3. A municipality has no-extraterritorial jurisdiction, and cannot confer such jurisdiction upon a municipal'board. The ordinance provides' that “said board of examiners * * * shall have jurisdiction coextensive with the corporate limits and the board of health,” yet another ordinance of the city provides that the jurisdiction of the board of health shall extend for one mile beyond the city limits for all purposes except quarantine purposes, and for the latter purpose, in case of epidemics, five miles beyond the-city limits. 130' Ark. 334.

      Boyd Cypert and Carmichael ■& Henclrichs, for appellee. ' ,
    The ordinances as passed were authorized ,by. the statute, act 285, Acts 1911, Digest, •§§ 7624-7637, and the rules provided by the board must.be .adopted by the city council before they.are effective, and that has been done in this case. It is not a rule of the board, but an ordinance we are considering. In testing the validity ,o;f the statute, all doubts must he resolved in favor of the legislative enactment. 85 Ark. 470.; 204 U. S. 311; 88 Ark. 354, 5th syllabus; 127 Ark. 38. The decided cases are clearly against .appellant’s contention that the act is unconstitutional, save only the case of State v.- Smith, ■ 42 Wash. 237, upon which appellant relies.. .Many other State have passed upon the validity of such acts, and in every instance their constitutionality has been sustained. 225 111. 536; 80 N. E. 341; 8 L. R.' A: (N. S.) 1118; 72 Md. 464, 8 L. R. A. 551; 144 N. Y. 529,. 27 W. R. A. 718; 58 0.- St.-599, 41 L. -R. A. 689 ; 211 Pa. 561; 101 Wis. 17'2; 96 S. W. 774; 90 Minn. 474. Certainly legislation controlling plumbers is more clearly within the police power than similar legislation pertaining to public 'accountants, yet such legislation has been sustained. 27'A. L. R; 1528: And similar legislation pertaining to barbers. 20 A. L. R.T109. And other professions in this State. 88 Ark. '352; 85 Ark. 396; Id. 464; -52 Ark.-228; 77 Ark. 506'; 59 Ark. 513; 95 Ark. 514. Appellants, in contending that they cannot be punished for violating' a rule or regulation' of the board, overlook-' the fact' that the statute provides that all such rules and regulations must be adopted by the city council before becoming effective.' C. & M’. Dig., §'7629.' Even if the ordinance giving to the board jurisdiction “coextensive with the corporation limits and the board of health,” and the ordinance defining the jurisdiction of the latter be held as extraterritorial, the former would be void only as to persons living between the city limits and a mile beyond, — and there has been no effort to show that appellants have been arrested for practicing plumbing beyond the city limits.
   Wood, J.

Sections 7624 to 7637, inclusive, of Crawford & Moses’ Digest contain the provisions of act No. 285, approved May 26, 1911, of file Acts of the General Assembly of 1911, regulating plumbing in cities of the first ancl second classes. Act No. 285, p. 276, Acts of 1911. The act provides that there shall be, in every city of the first and second classes in this State, a board of examiners of plumbers, consisting of four members, two of whom shall .be master plumbers and two journeyman plumbers, to be appointed by the mayor and approved by the council. No person shall be a member of this board unless he has served a regular apprenticeship and worked as a practical journeyman for a period of five years or more. The board is given power to examine all applicants as to their knowledge of plumbing, house drainage and plumbing ventilation, and, if satisfied of the competency of the applicant, the board shall issue to each applicant a certificate authorizing them to work at the business of plumbing. The board is authorized to formulate rules regulating the work of plumbing and drainage, such regulations to include materials and workmanship and the manner of executing the work connected with plumbing and drainage. The board, from time to time, may alter such rules. It is made unlawful for any person to work in the capacity of a journeyman plumber or to install plumbing fixtures or materials unless he shall first obtain a certificate of competency, and any person violating any of the provisions of the act and any of the rules or regulations established under the authority therein designated, shall be guilty of a misdemeanor, and, on conviction thereof, shall be fined not less than $5 nor more than $50 for each and every violation of the act, and, in addition, have his certificate revoked by the board of examiners.

The city council of the city of Little Rock, a city of the first class, passed ordinances pursuant to the act, creating a board of examiners of plumbers and prescribing its powers and duties. The jurisdiction of the board of examiners was to be coextensive with the corporation limits and one mile beyond, for all purposes except quarantine purposes, and for quarantine purposes, in case of epidemic, five miles beyond such limits. One of the duties of the board was to examine applicants for plumbers ’ certificates as to their knowledge of plumbing, pliimbing ventilation, and house drainage, both practically and theoretically, and, if satisfied as to the competency of such applicants, to issue to them certificates to do plumbing. The board was to receive, as compensation for their services, fifty per cent, of all the examination fees, and each applicant was required to pay the sum of $5 before an examination could be had. The ordinances authorized the board of examiners to formulate a code of rules regulating plumbing and drainage and to amend or alter such rules from time to time. The ordinances created the office of chief plumbing inspector, prescribing his qualifications, duties and compensation. He was to preside at all meetings of the board of examiners, assist in the formation of rules and regulations, and inspect all plumbing and drainage, and secure the proper performance of the work, and, in case he found the same satisfactory, to issue a certificate upon the payment of certain fees for inspection, as prescribed b;y the schedule set forth in the ordinances.

It was provided that the plumbing department should be under the supervision of the board of health. Among other things, the ordinances provided that any person working at the business of plumbing, or installing or placing any plumbing fixtures or material, without having first received a certificate from the board of examiners, shall be deemed guilty of a misdemeanor and fined a sum not less than $5 nor more than $50.

Gr. W. Replogle, for himself and others similarly situated, instituted an action in the chancery court, setting up that they were plumbers, and had practiced their vocation in the city of Little Rock and vicinity for many years; that they desired to pursue their vocation without the certificate required under the rules established by the board of examiners under the act and ordinances .above set forth. They alleged that they instituted this action against the city of Little Rock and the chief inspector of plumbing'; that, for various reasons, the act and ordinances passed in pursuance thereof were unconstitutional, and they prayed that the city of .Little Rock and the chief inspector of plumbing be enjoined from enforcing the same.

The allegations of the complaint as to the invalidity of the statute were denied in the answer, and the cause was heard upon the pleadings, the evidence adduced, and the act and ordinances' passed in pursuance thereof. The court held that the act and ordinances were valid, and entered a decree dismissing the complaint for want of equity, from which decree is this appeal.

Under our State and Federal Constitutions all men have the inalienable right to acquire, possess and protect property and to pursue their own happiness, and of these sacred rights no man can be deprived without due process of law. Article 2, § '2, Constitution of Arkansas 1874; Arndt. 5, Const, of U. S.; Arndt. 14, § 1, Const, of U. S. Any statute, or municipal ordinance enacted pursuant thereto, which challenges the right ' of any person to engage in the legitimate and honest occupation of plumbing, without restraint or regulation, must find its justification in the fact that such a statute or ordinance is necessary to. promote the general welfare. No individual can be deprived of the right to pursue his happiness in his own way, and to engage in honest toil in any avocation and in any manner he sees proper, in order to make a living for himself and those who may be dependent upon him, so long as he does not use such right-in a manner to injure others. So long as the individual does not transcend this bound, his conduct is not subject to police regulation. Police power can only be exercised to suppress, restrain, or regulate the liberty of individual action when such action is injurious to the public welfare. When statutes, and municipal ordinances pursuant thereto, have- been enacted- purporting to protect the. health and welfare of a community, all doubts as' to the constitutionality of such legislation must be resolved in its favor. Such deference and consideration must be given by the courts to the Legislature, a coordinate department of the government, as not to unduly inter-fere with its supreme legislative power, and never to interfere with such power unless it appears that the exercise is clearly outside the scope of the organic law, which is over all departments of the government, and which all are bound to observe- as- fundamental in the protection of the liberty, happiness, and general welfare of the community. Williams v. State, 85 Ark. 470; Dreyfus v. Boone, 88 Ark. 358; Pierce Oil Co. v. Hope, 127 Ark. 38; Baker v. Walker, 204 U. S. 311. But, when such enactments are challenged as an invasion of. the rights and liberties of the .individual guaranteed by the fundamental law, then it becomes the duty of the courts to. lay these enactments alongside, the Constitution and determine whether the exercise of the police power , in the suppression or regulation of ordinary occupations, trades, or callings, is .really necessary for the. public good.’, , , .

• Judge Cooley says: “It is an important, part of civil -liberty to have-the right to follow all lawful employment,” Cooley on Torts, 277; Mr. Tiecleman sgys: “No man’s liberty is safe if the Legislature can deny hint the right to engage in a harmless calling.” 1 Tiedemah on State.& Federal Control of Persons and Property, 236. Mr. Justice Bradley,- speaking for the United States Supreme Court in Butchers, etc. Co. v. Crescent City Co., 111 U. S. 746, says: “The right to. follow any of the common occupations of life -is an inalienable right,' * * * The right to follow any of the ordinary callings of life is one of the privileges of a citizen of the United States.”

■ These general observations are indeed but an announcement of axiomatic rules of law under our coordinate department system of government, and but the declaration of the personal rights, guaranteed by our State and Federal Constitutions, which are recognized generally by the courts of. this country. Courts of last resort, however, differ widely as to whether legislation of a similar or kindred nature to that under review is an infringement of the above rights. A majority of the courts that have had under consideration similar statutes have sustained them as a proper exercise of the police power. Douglass v. People, 225 Ill. 536; Singer v. State, 72 Md. 464; People v. Warden, 144 N. Y. 529; State v. Gardner, 58 Ohio St. 599; Blitz v. Pittsburg, 211 Pa. 561; State ex rel. Winkler v. Benzenberg, 101 Wis. 172; Caven v. Colman (Tex.) 96 S. W. 774; State ex rel. Chapel v. Justus, 90 Minn. 474; State v. DeVerges, 27 A. L. R., 1528.

The rationale of the doctrine of these cases is that plumbing is an occupation which peculiarly affects the public health, and therefore comes well within the police power of the State to regulate the manner in which it shall be conducted. People v. Warden, supra, is a leading case. The statute in that case created an examining board of plumbers with power to examine all persons applying for certificates of competency, as employing or master plumbers, to determine their fitness and qualifications for conducting such business and to issue certificates of competency upon a satisfactory examination. The act required the board of examiners to contain the chief examiner of the city sewers and the chief inspector of plumbing- of the board of health. It required" registration with the board of health, and that the business shall be conducted under rules and regulations prescribed by that board. The act was sustained by a divided court, three of the judges being for affirmance and three for reversal. The opinions for and against the validity of the statute are able and exhaustive of the subject. Judge Gray, who wrote the opinion upholding the statute, says: “I am not unwilling- to concede that the act skirts pretty closely that border line beyond which legislation ceases to be within the powers conferred by the people of the State, through the Constitution, upon its legislative body. ’ ’ The opin ion of the dissenting judges was voiced by Judge Peckhaji. He has stated the reasons why such legislation is invalid far mure cogently than the writer can hope to do, and we adopt the reasoning of his opinion and the conclusion reached as our own. Among other things he says: “The Legislature might probably provide for a sanitary inspection of the plumbing work and thus secure a kind of work, as to its system and sufficiency, which might fairly be said to tend towards the protection of the health of the general public. But the trade of the practical plumber is not one of the learned professions, nor does such a tradesman hold himself out in any manner as an expert in the science of sanitation, nor is any such knowledge expected of him, and this act, when practically enforced, may or may not exact it of him. This board, has the very greatest, and an entirely arbitrary, discretion as to what qualifications it will exact from the applicant. It may make an examination which none but an expert in sanitary knowledge could pass, or it may make the examination entirely perfunctory. * * * If it is intended as an act simply to secure the ordinary capacity necessary for the prosecution of the trade of a plumber, it is useless and vexatious, and not a health regulation in any form. If it exact more, it is an improper addition to the qualifications of a simple tradesman. This act permits the greater exaction to be made. '* * The examination provided for by this act, if conducted for the sole purpose of discovering the qualifications of an applicant in regard to those matters which pertain and are germane to the real and practical trade of a plumber, will not have the slightest tendency to discover whether he has also the requisite knowledge to enable him to act as a sanitary expert. Taking the act as a whole, it would seem quite apparent that its purpose is to enable the employing plumbers to create a sort of guild or body among themselves, into which none is to be permitted to enter excepting as he may pass :an examination, the requisites of which are not stated, and where his success or failure is to be determined by a board of which some of their own numbers are members. In order to be at liberty to exercise his trade as a master plumber, he must pass this examination and become a-member of this favored body. It is difficult for me to see the least resemblance to a health regulation in all this. I think the act is vicious in its purpose, and that it tends directly to .the creation and- fostering of a monopoly. * * * This measure detracts- from the liberty of the citizen, acting- as a tradesman, in his efforts to support himself and his family by the honest practice of a useful trade, and I think no court ought to sanction such legislation unless it- tends much more plainly than does this act towards the preservation of the health and comfort.-of the public.”

If the act under consideration' in the above case “skirted pretty closely that border line'” beyond which the Legislature cannot go, as conceded in .the opinion upholding it, then 'certainly the act under review in the case at bar passes far beyond the border line, and violates the personal rights guaranteed by the provisions of ’both the State and Federal Constitutions above referred to. The New York statute required that the chief ’ examiner of city sewers and the chief inspector of plumbing of the board of health be members of the examining board' of plumbers, and contained other provisions which directly connected the board 'of éxaminers of plumbers with the board’ of health. ’ But the statute under consideration contains no such provisions, and there is nothing ■ in all the -■ act to indicate that its primary purpose was to conserve the public health, except’ the broad .provision’ that the plumbing department, consisting of the' examining board, the ehiéf inspector and ’ his deputies, sháll be under the supervision of the board of health of said city, and requiring the chief inspector to make a complete report of the plumbing department to the board -of health at the end of each year. The act contains no specific provisions -prescribing the manner in which the board of health of cities of the first and second classes shall regulate the plumbing department so as to make that department an efficient instrument for the preservation of the public health. The Arkansas statute contains all'the obnoxious features condemned by Judge Peckham in the New York law, and more. It requires all applicants who desire to engage in the business of plumbing, either as journeyman plumber, or as master plumber working in the capacity of a journeyman plumber, or any person installing or placing plumbing fixtures or materials, to pass such examination as to his qualifications and competency as the board may prescribe. The examination shall be of such character as to thoroughly test the applicant’s ability both practically and theoretically.

The power thus vested in the examining board, without any restriction, and without any specification of the knowledge that should be required of plumbers in order to pass the examination, would enable the board, if it so elected, to arbitrarily prescribe theoretical tests, with which no applicant could comply, even though he might have perfect knowledge of and be thoroughly skilled in all the practical work of a plumber. The personal rights guaranteed by our State and Federal Constitutions cannot be taken away on theories.

The appellant, Replogle, alleges in his complaint that one of the rules adopted by the examining board requires applicants to submit to a test in wiping lead joints. Sixty per cent, is marked off for failure to meet such test; that wiping lead points is an obsolete practice, and no longer an essential part of a plumber’s knowledge, as the board well knew; that this requirement is an unjust, arbitrary and discriminatory condition precedent to the issuance of certificates. He further alleges that he is a practical plumber, well versed and skilled in the art, but that he failed to meet the unfair and arbitrary test required by the board, and was thus wrongfully and illegally denied a certificate.

Whether these allegations were sustained by the proof the record does not disclose, but we refer to them because they'serve to illustrate the arbitrary and oppressive power that the board of examiners might exercise to deprive one who- is thoroughly qualiíiéd to do the practical work of plumbing, of his constitutional right to pursue his avocation, and perhaps his only livelihood, because, forsooth, he was unable to answer some technical or theoretical question not in any sense germane to the real and practical trade of a plumber, and not having even the remotest connection with the actual conservation of the public health. The constitutionality of the act must be tested, not by what the board has actually done, but by the power it actually has. The presumption that public servants will do their duty cannot be indulged in determining whether the act violates the Constitution. It is a question of the power conferred and what the board might do under it, and, to be valid, the act must meet every test required by the Constitution, even the most extreme.

In this connection we desire to quote again • from Judge Peckham, after he became a Justice of the Supreme Court of the United States. The Supreme Court of the United States, in the case of Lochner v. New York, 198 U. S. 45, had under consideration an act of the State of New York forbidding employees from working’ in a bakery or confectionery establishment more than sixty hours in one wrnek. The act had been sustained by the Court of Appeals of New York, the same two judges of the State court dissenting as had joined with Judge Peckham in his opinion in the case of People v. Warden, supra. Speaking- for the Supreme Court of the United States, Judge Peckham:, among other things, says: “It is impossible for us to shut our eyes to the fact that many of the laws of this character, while passed under what is claimed to be the police power for the purpose of protecting the public health or welfare, • are, in reality, passed from other motives. We are justified in saying so when, from the character of the law and the subject upon which it legislates, it is apparent that the public health or welfare bears but the most remote relation to the law. The purpose of a statute must be determined from the natural and legal effect of the language employed; and whether it is or is not repugnant to the Constitution of the United States'must be determined from the natural effect of such statutes when put into operation, and not from their proclaimed purpose. The court looks beyond the mere letter of the law in such cases.”

Although bottomed on a different statute, we consider that the language above quoted from Judge Peck-ham, speaking for a majority of the Judges of the Supreme Court of the United States, is exceedingly apposite to the case in hand.

In State ex rel. Richie v. Smith, 42 Washington, 237, the Supreme Court had under consideration a statute like ours regulating plumbing. Judge Rudkin, voicing the unanimous opinion of the . court, after quoting extensively from the opinion of Mr. Justice Peckham in the case of People v. Warden, supra, says: “We have quoted at length from this dissent, because a Federal question is involved -and because the views of the learned justices are in accord with our own, and, in our opinion, are shared by a majority of the Supreme Court of the United States, of which, he is now a member.” Judge Rudkin concludes his exhaustive and illuminating opinion as follows: “We are satislied that the act has no such relation to the public health as will sustain it as a, police or sanitary measure, and that its interference with the liberty of the citizen brings it in direct conflict with the Constitution of the United States.”

The opinion of the Washington court is in harmony with our own views. It follows that the decree of the trial court must be reversed, and the cause will be remanded with directions to enter a decree granting' the prayer of the appellant’s complaint.

McCulloci-i, C. J., and Smith, J., dissenting.

Wood, J.,

(on rehearing). Municipal corporations . have power to make and publish such by-laws and ordi- ' nances* not inconsistent with the laws of this. State, as' to them shall seem necessary to provide for" the -safety, preserve the health,-promote the prosperity and improve the morals,' order, comfort and convenience of such corporations and the inhabitants thereof. Section 7494, Crawford & Moses’ Digest. Under this “general'wélfare” clause' of our statute, municipal corporations unquestionably have power to require those who pur- . sue the avocation of plumbing to perform their work in such manner as not to endanger the public health or safety. To this end, municipal corporations have the power to make and publish by-laws and ordinances providing for.the inspection of plumbing work. No other additional authority was necessary to confer such power upon municipal'corporations than that contained'in the general welfare clause of our statute, supra. But the power to require that the work of the plumber’s craft, or that of any other avocation which men have the common and natural right to pursue, shall be conducted in such manner as not to endanger the public health or- safety is one thing, while the power to prohibit individuals from engaging in such handicrafts and occupations is entirely another and different thing. Municipal corporations have the power to regulate in a proper and reasonable manner the work done in any common avocation or calling, if it affects the public health and safety. But they have not the power to prevent any one.from engaging in these avocations and to place restrictions upon them, so long as their work is not clone in a manner detrimental to the public welfare.

Now, the statute under review, when taken as a whole, was intended to prevent any one from engaging in the craft or business of plumbing until he had been examined by a board designated “board of examiners of plumbers,” and passed the ordeal or test prescribed by such board. The test prescribed by this board, as we have endeavored to show in the original opinion, could he, and might he, such as to deprive one of the right to engage in the work of plumbing, although well skilled in the practical art of a plumber’s trade, because, forsooth, he did not have the knowledge which the board had determined was necessary to constitute one theoretically, as well as practically, a qualified plumber. We did not hold in the original opinion that the work of plumbing might not be conducted in a manner to affect the public health or safety. The same may be said of many other'avocations which men have the common and natural right to pursue. But that does not justify the- enactment of laws or ordinances restricting or prohibiting individuáis from engaging in such occupations unless, and until, they have been pronounced qualified, under certain rules and standards prescribed ;by an examining board. All such infringements of individual rights guaranteed under our laws are unconstitutional and void, because they are infringements of individual rights guaranteed under our Federal and State Constitutions. The monopoly of the plumber’s craft which the act under consideration tends to create and foster, would be far more detrimental to the public weal than any sporadic or occasional piece of defective plumbing work.

The provisions of the act relating to the inspection of plumbing are so correlated with the sections relating to the examining board and its powers and duties that they cannot be separated and leave a complete and workable law authorizing the inspection of plumbing, in order that the same may be done in a manner not injurious to the public health or safety. It cannot be presumed that t-he Legislature would have passed the act as it would appear if the provision .creating the board of examiners of plumbers and defining its powers and duties were stricken out. Ex parte Jones, 49 Ark. 110; Oliver v. Southern Trust Co., 138 Ark. 381; see also Nixon v. Allen, 150 Ark. 244-50. This court cannot convert the body of the statute under consideration into such a law without trenching* upon the functions of the Legislature. To add on and lop off the necessary and unnecessary parts would require more judicial surg*ery than this court should undertake. Several sections of the act could be upheld if they were parts of a properly framed inspection law, and such a law could easily be framed, but it is not the province of this court to enter upon the work of enacting such a law. The agreed statement of facts shows that the appellants only violated the ordinance of the city prohibiting them from engaging in the work of plumbing without passing the examination by tlie board of examiners of plumbers provided for in the ordinance. Since this provision of the act renders the whole act unconstitutional, it necessarily follows that such ordinances as are bottomed upon, or referable-alone to, this act, must fall with it. The motion for rehearing is therefore overruled.

McCulloch, C. J.

(dissenting). It is conceded in the opinion of the majority that the conclusion reached is against the weight of authority. The citations in the opinion show that, with a single exception (the case of State ex rel. Ritchie v. Smith, 42 Wash. 237), the authorities uphold statutes substantially identical with the one now under consideration. The majority also find support in the dissenting opinion of Judge Peckham in the case of People v. Warden, 144 N. Y. 529. They also cite the decision in Lochner v. New York, 198 U. S. 45, involving the validity of a statute regulating the hours of labor in bakeshops. If it be conceded that the Lochner case affords any support to the views of the majority, that case has at least fallen into innocuous desuetude in the very court where it was rendered. Bratton v. Chandler, 260 U. S. 110; Adkins v. Children’s Hospital, 261 U. S. 525. I think we should follow the weight of authority, especially since it is in accord with our own decisions on kindred questions. Thompson v. Van Lear, 77 Ark. 506; Williams v. State, 85 Ark. 465; Burrow v. Hot Springs, 85 Ark. 396; Dreyfus v. Boone, 88 Ark. 353; State Med. Bd. v. McCrary, 95 Ark. 511.

I fail to see the force of the argument that the inspection feature of the statute and city ordinance should be stricken down merely because the examination and license features are found to be invalid. The lawmakers sought to protect the health of the inhabitants of cities by regulating plumbing, and there is no reason to believe that the inspection provision would not have been enacted without this other provision.- The part of tlie statute in excess of power can be stricken out and the remainder left intact. Oliver v. C. R. I. & P. Ry. Co., 89 Ark. 466; State ex rel. v. Woodruff, 120 Ark. 406; Jones v. Floyd, 129 Ark. 185; Oliver v. Southern Trust Co., 138 Ark. 389; Hamby v. Pittman, 139 Ark. 341; Vietz v. Road Imp. Dist., 139 Ark. 567; McClendon v. Hot Springs, 141 Ark. 114; Davis v. Hot Springs, 141 Ark. 521; Alexander v. Stuckey, 156 Ark. 692.

Attention is especially directed to the case of McClendon v. Hot Springs, supra, where a statute was under consideration which provided for a city manager as a public officer, and this court (Mr. Justice Wood speaking for the court) upheld the partial validity of the statute, even though a part was held to be unconstitutional.

Mr. Justice Smith agrees with me in these views.


author: Smith, J.

text:
    Arkansas Light & Power Company v. Jackson.
    Opinion delivered December 8, 1924.
    1, Master and servant — res ipsa loquitur doctrine. — In an action for the death of an employee who was electrocuted while opening a switch to cut off the current of electricity, the line and apparatus being under the control and management of the employer, the doctrine of res ipsa loquitur was applicable, in the absence of any proof'that he was negligent in the manipulation of the switch handle.
    2. Master and servant — res ipsa loquitur doctrine. — The doctrine of res ipsa loquitur does not relieve plaintiff of the burden of proving negligence, but merely defines the conditions under which a prima facie showing of negligence has been made, and requires defendant, having custody and control of the agency causing the injury and an opportunity to make examination to discover the cause, to furnish an explanation, in order to overcome the plaintiff’s prima facie showing of negligence.
    3. Master and servant — cause op death jury, question. — In an action for the death of an employee, the question whether .the employee was electrocuted by instrumentality' under the control and management of the employer, so as to render applicable the doctrine of res ipsa loquitur, held for the jury as against the contention that the cause of death was matter of speculation.
    Appeal from Hot Spring Circuit Court; Thomas E, Toler, Judge;
    affirmed.

      T. D. Wynne, for appellant.
    The court erred in not directing* a verdict in favor of defendant. 51 Ark. 468; 46 Ark 555; 79 Ark. 437; 105 Ark. 161. Negligence cannot be inferred merely from the occurrence of an injury. 51 Ark. 46.7; 74 Ark. 19; 105 Ark. 161.' The burden of proof was upon the injured servant to show negligence on the part of the master. 105 Ark. 161; 44 Ark. 524; 79 Ark. 437; 133 Ark. 336; 179 U. S. 658; 222 Mo. 488. Juries are not permitted to rest a verdict purely upon speculation, but there must be testimony which warrants a finding of the essential facts or which would warrant a reasonable .inference of the existence of those facts. 109 Ark. 206; 76 Ark. 436; 105 Ark. 161. An employee assumes all obvious risks of the work in which he is employed. ' 95 Ark. 563; 90 Ark. 407; 82 Ark. 11; 79 Ark. 20; 67 Ark. 209; 56 Ark. 206. Negligence of the company could not be inferred merely from the occurrence of the accident. That must be proved, and the burden of establishing it is on the party who alleges it. 82 Ark. 372; 67 Ark. 437; 100 Ark. 467; 93 Ark. 153; 98 Ark. 222 ; 79 Ark. 437; 90 Ark. 331; 87. Ark. 196; 74 Ark. '22. Conflict in instructions is always error, and 'must be adjudged prejudicial. 74 Ark. 437; 76 Ark. 224; 65 Ark. 65; ,83 Ark. 210; 94 Ark. 282.

      J. L. Bittle and D. D. Glover, for appellee.
    When the injury and circumstances attending it are so «unusual and of such a nature that it could not have happened without the company being- negligent, the burden is on the company to show that its negligence did not cause the injury. 139 Ark. 495; 118 Ark. 218; 77 Ark. 491; 121 Ark. 351; 140 Ark. 148; 89 Ark. 588; 54 Ark. 209; 57 Ark. 418; 57 Ark. 429; 61 Ark. 381; 78 Ark. 426; Keasey on Electric Wires, § 271; 57 L. it. A. 624; 31 L. R. A. 556; 82 Md. 293. While a servant assumes all the ordinary risks incident to- the service in which he is employed, he does not assume any risk caused by the master’s negligence. 98 Ark. 227; 95 Ark. 291; 87 Ark. 396.
   Smith, J.

Appellee, in his own right and as administrator of the estate of Rudolph Jackson, his son, instituted this suit to recover damages on account of the death of his son, who met his death while in the employ of appellant on the 31st day of January, 1923.

Deceased, at the time of his death, was eighteen and a-half years old, and had been employed by the defendant light and power company as an electrician for about two years. The testimony shows that deceased was a promising young man, who had had a course" in an electrical school, and who, because of his training and experience, was considered a very valuable employee. At the time of his death he, with other employees, was engaged in completing- the installation of a transformer substation for the appellant company at Malvern, Arkansas. Deceased had been engaged in the construction and installation of this job for about a month prior to his death. The transformer'substation at Malvern, it was shown, is constructed by use of cedar poles or creosoted pine, which are approximately thirty-five feet in height and placed in the ground to the depth of six feet. These poles are arranged in rows of three each. The transformers are between said poles, resting upon concrete pedestals up above the ground some distance. The whole equipment consists of the poles, transformers and air-brakes. The air-brake switch is located on top of the poles twenty-five feet above the ground. There is a galvanized rod extending from near the switch at the top of the poles down to near the ground. This rod, in some way, articulates with the switch on top of the poles. To this rod is attached, at or near the bottom, an iron socket, into which socket a wooden handle is placed to open or shut the switch at the top. To open the switch you pull down on the switch handle. To close the same you pull up on the switch handle. The instant the switch is open, the current is shut off. The switches are covered with heavy porcelain insulators, and are of standard make.

On the day the fatal accident occurred, the employees, including the deceased himself, were making some adjustments of a minor nature, preparatory to the completion of the installation job at Malvern. Jackson was directed to throw one of the switches in order to cut off the current. He had done this before, and was familiar with the operation of the instrument used' for that purpose. In opening the switch he stood upon earth, which was damp, and which some of the witnesses referred to as muddy. The order to open the switch was given by the foreman, and was executed in the latter’s presence, and, when Jackson took hold of the wooden handle placed in the socket attached to the galvanized rod and pressed down the handle, thereby opening the switch to cut off the current, he fell instantly in his tracks to the ground. Medical attention was had at once, and the attending physician made strenuous efforts to revive Jackson, and, although his heart continued to beat for about an hour, he was never revived, and never regained consciousness. It is the theory of the defendant that, as Jackson fell, he struck his head against a timber lying on the ground; but the question iii the case is, what caused him to fall?

The testimony on the part of the defendant is to the effect that Jackson was not electrocuted. According’ to this testimony, the mechanism was in perfect order. There was only one way to operate the lever in opening or closing the switch, and it was operated in that manner by Jackson, and this manner was safe and free from danger. In other words, according to the testimony on behalf of defendant. Jackson was not electrocuted, and could not have been.

But he was killed; he dropped in his tracks, and would, no doubt, have died in a few moments but for the efforts to resuscitate him. The doctor who attended Jackson testified that he was familiar with electrical burns, and expressed the opinion that Jackson had been electrocuted. He testified that he found a discoloration on the back part of Jackson’s neck, beginning on the right side and extending down the spine. He also testified that he found a bump on the back of Jackson’s head, but he did not attribute death to that cause, as there had been no hemorrhage such as would have followed from a blow of sufficient force to have produced the condition in which he found Jackson. There was also testimony to the effect that the glove which Jackson wore when he opened the switch was burned.

The case made for the jury may be summed up as follows: There was no testimony that Jackson had manipulated the lever in an improper way, and the defendant’s testimony was to the effect that the mechanism which he operated was perfectly safe, and that he could not have been electrocuted by merely opening the switch, yet the testimony on the part of the plaintiff abundantly supports the theory that Jackson was electrocuted.

The court gave, over the objection of the defendant, an instruction numbered 7, which reads as follows: “You are instructed that, where injury or death is caused by a thing or instrumentality that is under the control or management of the defendant, and the injury or death is such that, in the ordinary course of things, would not occur if those who have such control or management use proper care, the happening of the injury is prima facie evidence of negligence, and shifts to the defendant the burden of proving that it was not caused through lack of care on defendant’s part.”

The applicability of this instruction presents the ' real question in the case.

In the casé of Chiles v. Fort Smith Commission Company, 139 Ark. 489, we quoted cases holding that, while the doctrine of res ipsa loquitur had ordinarily been applied in suits against carriers, there was no sound reason for limiting it to such cases, and that the presumption expressed by that maxim originates from the nature of the act causing the injury, and not from the nature of the relation between the parties, and that the presumption arises from the inherent nature and character of the act causing the injury. We there quoted with approval from § 156 of the chapter on Negligence in 20 R. C. L., the following statement of the law: “More precisely the doctrine res- ipsa loquitur asserts that, whenever a thing which produced an injury is shown to have been under the control and management of the defendant, and the occurrence is such as, in the ordinary course of events, does not happen if due care has been exercised, the fact of injury itself will be deemed to afford sufficient' evidence to support a recovery, in the absence of any explanation by the defendant tending to show that the injury was not due to his want of care. # * The presumption of negligence herein considered is, of course, a rebuttable presumption. It imports merely that the plaintiff has made out a prima facie case which entitles him to a favorable finding, unless the defendant introduces evidence to meet and offset its effect. And, of course, where all the facts attending the injury are disclosed by the evidence, and nothing is left to inference, no presumption can be indulged — the doctrine res ipsa loquitur has no application.”

See also Choctaw, O. & G. R. Co. v. Doughty, 77 Ark. 1, which was a suit by the servant against the master.

The case of Southwestern Tel. & Tel. Co. v. Bruce, 89 Ark. 581, was a suit by a carpenter who was engaged in repairing a barn, but was not employed by the telephone company. One of the company’s wires broke and burned the plaintiff, and he sued for damages. There was no satisfactory explanation of the cause of the injury. It was there said:

“And, where the defendant owes a duty to plaintiff to use care, and an accident happened causing injury, and the accident is caused 'by the thing or instrumentality that is under the control or management of the defendant, and the accident is such that, in the ordinary course of things, it would not occur if those who have control and management use proper care, then, in the absence of evidence to the contrary, this would be evidence that the accident occurred from the lack of that proper care. In such case the happening of the accident from which the injury results is prima facie evidence of negligence, and shifts to the defendant the burden of proving that it was not caused through any lack of care on its part (Cases cited). -
“Now, this rule applies, to electric companies in the control and management of their lines and apparatus, for the further reason that they have almost exclusive knowledge of the facts relative thereto. The plaintiff ordinarily has’not the power or opportunity to test these lines and apparatus; and it is reasonable that the party having the power and opportunity should be required to give an explanation of the accident, and to prove that it did not occur through a lack of care on its part” (Cases cited).

. We think the doctrine of that case is applicable here. If there had been testimony that Jackson was injured by the negligent or improper manipulation of the lever, the doctrine would be inapplicable, but it is not contended that he was. If Jackson was electrocuted, and the other instructions required that the jury should so find before returning a verdict for the plaintiff, there was a cause for it other than the manner in which Jackson operated the lever. His act in so doing would not have caused his death if there had not been something wrong somewhere. The plaintiff had no opportunity and was not required to test the line and the apparatus conveying the deadly current. These were under the control and management of the company, and the conditions were therefore present which make the doctrine applicable.

This instruction does not tell the jury there was a presumption of negligence from the mere occurrence of the injury, nor did it relieve the plaintiff from the burden of proving negligence. The burden of proof to establisli negligence was on the plaintiff, and the instruction did not shift this burden. Under the undisputed evidence the deceased was guilty of no negligence, and no attempt was made to show that he was guilty of any negligence.

The instruction required the jury to find that the instrumentality which caused deceased’s death was under the control or management of the defendant; and, further, that no injury would have occurred if the defendant, having the control and management of the appliance, had used proper care; and declared the law to be that,’this having been proved, the plaintiff had prima facie discharged the burden of proving negligence; and, having thus shown prima facie that the injury would not have occurred but for the defendant’s negligence, the burden then shifted to defendant to account for the cause of the injury' by showing that its negligence was not responsible for it.

. The doctrine of res ipsa loquitur does not relieve the plaintiff of the burden of proving negligence; it merely declares the conditions under which a. prima facie showing of negligence has been made, and, where this has been done, the defendant having the custody and control of the agency causing the injury and the opportunity to make the examination to discover the cause, must furnish the explanation which this opportunity affords to overcome the prima facie showing made by the plaintiff. Such is the purport of the instruction, as we understand it, and no error was committed in giving it under the facts of this case.

It is urged that a verdict should have been directed for the defendant on the ground that the cause of Jackson’s death was a mere matter of speculation and ■conjecture. But we think it sufficiently appears from the facts herein recited that the jury might have found that Jackson was electrocuted, and that this was done by some agency or instrumentality under the control and management of the defendant, and a case was therefore made for the jury.

Some other questions are presented that involve the application of the law in regard to master and servant which we do not think require discussion.

Finding no error, the judgment is affirmed.