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

text:
    Shinn v. State.
    Opinion delivered October 24, 1921.
    1. Criminal law — harmless error. — The error of admitting incompetent evidence of the contents of a letter was not prejudicial where the letter as proved contained nothing unfavorable to the defense.
    2. Witness — impeachment.—The accused in a criminal case may, for the purpose of testing his credibility, be questioned on cross-examination as to his having been a gambler and as to other offenses and immoralities.
    3. Witnesses — recall of accused for cross-examination. — It was within the trial court’s discretion to permit the State to recall the accused for cross-examination after the defense had closed.
    4. Witnesses — cross-examination of witness on collateral matter. — The testimony of accused on cross-examination as to whether he had participated in another crime cannot be contradicted by other testimony, as it relates to a 'collateral matter.
    5. Criminal law — testimony introduced without objection.— Where evidence was introduced by the State without objection, its introduction cannot be'assigned as error on appeal.
    6. Criminal law — invited error. — Where certain experiments were made by the jury at defendant’s request, and he was given the opportunity to witness the experiments, he cannot complain because the experiments were conducted in his absence.
    Appeal from Pope Circuit Court; A. B. Priddy, Judge;
    affirmed.

      Hays & Ward, for appellant.
    The defendant on cross examination was subjected to a character of cross examination not permissible in the case of other witnesses which was highly prejudicial to his cause. 53 Ark. 387; 58 Ark. 473; 60 Ark. 450; 70 Ark. 107; 72 Ark. 427; 75 Ark. 548; 78 Ark. 284; 91 Ark. 555; 103 Ark. 28; 104 Ark. 162; 106 Ark. 160.
    Tt .was error to allow the State to recall defendant, after he had closed his case, for the purpose of contradicting him. The evidence could not have been introduced by the State to establish its case, and was collateral to the issue, hence could not be contradicted. 34 Ark. 480; 59 Ark. 431; 2 Ark. 409; 76 Ark. 366; 99 Ark. 604; 101 Ark. 147; 103 Ark. 119.
    The tests made with the gun, alleged to have been used in killing deceased, upon empty shells to show the impression made by the plunger, were prejudicial, as the same impression would not have been made with a loaded shell. Tests should be made under identical conditions with the original as nearly as possible. 18 C. J. 810; 115 Ark. 101.
    The tests made under direction of the court With the gun and shells, away from the court house in the absence of defendant, was equivalent to taking testimony in his absence. 108 Ark. 191; 131 Ark. 320; 51 Ark. 553. Defendant could not, even by his own acts, consent to such procedure. It also amounted to the taking of evidence in the absence of the trial judge, whose presence at all stages of the trial is essential. 74 Ark. 19; 71 Ark. 112; 88 Ark. 62; 104 Ark. 629'.

      J. S. Utley, Attorney General, Elbert Godwin and W. T. Hammock, assistants, for appellee.
    The testimony of witness Burks, which appellant viciousfy attacks, if believed by the jury, would support the verdict and judgment. 36 Ark. 653; 32 Ark. 220. The jury was the judge of the credibility of the witness.
    The testimony elicited from appellant on cross-examination was without any objection raised on his part. Where no objection is raised, its admission will not be reviewed on appeal. 130 Ark. Ill; 101 Ark. 443; 99 Ark. 462; 129 Ark. 316. As appellant answered a number of the questions propounded to Mm in the negative, he has no right to complain. A party cannot complain of the admission of evidence favorable to him. 52 Ark. 480; 118 Ark. 569. When a defendant in a criminal prosecution takes the witness stand in his own behalf, he places himself in the attitude of any other witness. 114 Ark. 239; 91 Ark. 555. A witness may be recalled for further cross-examination. 75 Ark. 574. The evidence so elicited was admissible for the purpose of reflecting upon the credibility of appellant. 138 Ark. 465; 139 Ark. 13.
    The shotgun shells, fired without a load, in the court room and introduced in evidence, were so introduced at the request of both parties, and appellant cannot now complain of testimony offered by himself. 5 Ark. 41; 33 Ark. 180; 115 Ark. 392.
    The further tests made with the gun and shells were at the request of appellant, and if there was error, it was invited by appellant and he has no right to complain. 108 Ark. 191. Not having requested the privilege of being’ present when the test was being made, it is too late now for him to complain. 86 Ark. 317.
    The court could properly send its duly authorized officer with the jury without accompanying them himself, especially where this was done at appellant’s request. 114 Ark. 245.
   McCulloch, C. J.

This is an appeal from a conviction of murder in the first degree, the punishment of appellant being fixed by the jury at life imprisonment.

The accusation against appellant is that he killed Lewis Vandergeten in Pope County on the night of November 27, 1920, by shooting him with a gun.

The first contention of appellant is that the evidence is not sufficient to sustain the verdict.

The killing occurred in a building called the “wash-house,” at a coal mine about three miles from Bussellville. On the night mentioned, the deceased and a crowd of other boys and men were engaged in playing craps in the wash-house at the coal mine, and about 11 o ’clock they were held up and robbed by three masked men. The three men walked into the wash-house by different doors, and one of them coming through the door at the north was armed with a shotgun. Deceased failed, when ordered, to put up his hands, and the man with the gun shot him, killing him instantly. The weapon used was a double barrel shotgun, and the empty shell was' extracted and thrown on the floor at the spot where the shot was fired. One of the participants in the crap game who testified as a witness identified appellant as the man who fired the shot. The witness stated that he was well acquainted with appellant, and was standing in the crowd in the wash-house when the three robbers entered; that he saw enough of appellant’s face to be able to recognize him and did recognize him as the man who fired the shot. Two other witnesses testified that the next morning after the killing appellant, apparently laboring under excitement, in speaking of the killing, said: “I done it. I might as well say I done it. I will be accused of it anyhow.” That was, according to the testimony, before the appellant was arrested, and before any accusation was made against him. Appellant and his step-mother lived in about 300 yards of the wash-house. He had been to Russellville that night, and shortly before the killing he and two other young men drove out to the wash-house in a jitney, entered the house and participated in the game. Appellant left the house in a few minutes, and about fifteen or twenty minutes later the robbers entered and committed the crime. Appellant testified that when he left the wash-house he went home and remained there for about an hour and a half, and on his return to the wash-house ascertained that the crime had been committed, but that he was not a participant in the crime, and had no knowledge of it until he had returned to the wash-house. A double-barrel shotgun was found at the house occupied by appellant and his step-mother, and on examination it appeared that one of the barrels of the gun had been recently fired. Shells of the same size and make as the empty one found on the floor in the wash-house were found at appellant’s house. During the progress of the trial there were experiments made by firing from appellant’s gun the same kind of shells, but these are matters which will be referred to later in discussing other assignments of error.

There was sufficient evidence to sustain the verdict. The credibility of the witnesses was a question for the jury to determine, and there was testimony adduced, both direct and circumstantial, which tended to establish appellant’s guilt. There are other assignments of error which will be discussed !n the order mentioned in the brief of counsel.

Objections were made to certain questions propounded to Mrs. Bettie Shinn on cross-examination and the exhibition to her of a letter said to have been received from appellant without introduction of the letter before the jury. Mrs. Shinn was asked whether or not she had corresponded with appellant while he was temporarily held in the penitentiary under the present charge. She answered in the affirmative, and the prosecuting attorney thereupon held up a letter and asked her if she had received that letter from appellant. There was a long colloquy then between counsel in the case, in which appellant’s counsel objected to the introduction of any correspondence on the ground that it was not admissible because written from tho penitentiary, and also on the ground that the letter itself should first be shown to the witness. The court permitted the question to be asked in the following form, and answered:

“Q. I will ask you if you got a letter from Shinn in which he stated this, ‘You all know that I left home and come back through the same door, and that the lights were burning when I left and when I come back, and that I could not have took my gun or brought back any gun, as the lamp was lit when I come back, and the kind of pants I wore, so you will be asked all these, and that I slept on a couch in the north room, your room, and that the lights burned all night, and me and Luther got up and fed and milked the cows, etc., in the morning. ’ Did you get a letter from him with a statement like that from him ?
A. “Yes, sir.”

Without determining whether or not the contents of the letter were properly brought to the attention of the jury, we are clearly of the opinion that there was no possible prejudice that could have resulted from this incident in the trial. There was nothing unfavorable to appellant’s defense contained in the purported statement in the letter. It was written to his step-mother, with whom he was living at the time the killing occurred, and with whom he sustained, according to the testimony, the most cordial relations, and the statement does not tend to incriminate appellant in any way, so therefore there was no prejudice in its introduction.

It is next contended that there was error in permitting appellant to be cross-examined concerning »his past conduct. Appellant was asked all sorts of questions about having been a gambler and about other offenses and immoralities. This was merely for the purpose of testing his credibility and was admissible as such. This court so decided in the case of Hollingsworth v. State, 53 Ark. 387. This was with regard to a witness other than the accused himself, but we have since then frequently held that the same rule applies to a defendant in a criminal prosecution when he takes the witness stand in his own behalf. Ware v. State, 91 Ark. 555; Hunt v. State, 114 Ark. 239; Nelson v. State, 139 Ark. 13.

After appellant closed his case, the State called several witnesses in rebuttal, among others one Everett Gray, who was asked about an alleged conversation between him and appellant in regard to another robbery. The witness stated that he had had such conversation, and no objection was made to that testimony. Objection, however, was made to the next question propounded to the witness, and the prosecuting attorney withdrew the question for the time. Thereupon, the State was permitted, over appellant’s objection, to recall appellant himself for the purpose of asking him concerning his statements to witness Gray. The objection was made in the following language: “The defense closed, and he is now asking questions in rebuttal — going to open the case in order to make rebuttal testimony. We object to it.” The ground of appellant’s 'objection was, in substance, that the case should not be reopened for the purpose of allowing appellant himself to be cross-examined. The court overruled • the objection, and the prosecuting attorney was permitted to ask the witness if he aad not requested Everett Gray to go to one Baker and get a gun and assist in robbing a certain crap game. The appellant replied that he did not make such a request. Witness Gray was then recalled and was examined and cross-examined concerning the alleged request made of him by appellant to participate in holding up another crap game. Appellant made no objection to the introduction of the testimony of Gray. The recall of appellant as a witness for further cross-examination was a matter in the discretion of the court, and it does not appear that the discretion was abused. It was competent for the State to ask appellant on cross-examination whether or not he had requested Baker to assist in robbing a crap game on another occasion, but the State was bound by appellant’s answer, and, it being a collateral matter, the State could not introduce independent testimony concerning it. There was no objection, however, to the introduction of Gray’s testimony, and therefore, appellant was in no attitude to complain of the rulings of the court in admitting it.

During the progress of the trial, certain experiments were made by the attorney for the State and one of the witnesses using the. gun owned by appellant and empty shells similar to the one .found on the floor of the wash-house. It appears that in these experiments the gun was snapped on the empty shells in the presence of the jury. There was no objection to the experiment being thus made in the presence of the jury, but counsel for appellant objected to the introduction of the impression made on the primer of the shells in the experiment, on the ground that the shells being empty the impression would not be the same as on a loaded shell. A long colloquy between counsel resulted, and appellant’s counsel finally withdrew the objection. Certainly, no error could be assigned under these circumstances, for there was no objection made to the experiment, and the objection made to the introduction of the shells was expressly withdrawn.

It appears that after the indictment of appellant by the grand jury the gun which he is said to have used and the empty shell found on the floor of the wash-house were preserved by the sheriff and were exhibited to the jury during the progress of the trial. Before the trial certain experiments had been made by a deputy sheriff and one of appellant’s attorneys, Mr. Ward, and the result of these experiments in firing the gun at a target was offered in evidence, but the State objected on the ground that the shots had been fired by one of appellant’s attorneys. Thereupon appellant requested that the jury be permitted to take the gun and shells similar to the one found in the wash-house and fire at a target. The attorney for the State agreed to this suggestion, and asked that the jury be allowed to go to the wash-house and fire the gun from the spot where the man who shot Vandergeten stood, but the court refused to send the jury to the wash-house. At the close of the trial appellant renewed his request for these experiments to be made by the jury, and the court ordered it to be done. The record contains the following statement made by the court:

“Gentlemen of the jury, the sheriff has procured here the shells, all shells just like the one that was in the gun, three other shells not of the same brand, but same size shot. Now I understand the jury wants to get a shave, and in the morning before you come to court I will have the sheriff bring these shells and these targets and the gun down to the hotel, and Mr. Worsham can take you out with a tape line, and I will give written instructions here as to the distances you can fire these shots. I have stated here that yon oan fire three shots from a distance of 23 feet 7 inches, three from a distance of 21 feet and 9]/- inches, three from a distance of 17 feet 8 inches, and three 15 feet and 7 inches. Let the man who shoots stand on a line at a distance indicated from the target. And. nobody to go with the jury making any demonstration. Yon can bring these targets back into court, Mr. Deputy Sheriff. And, gentlemen, you will not talk .about, it yourself or comment at all, and I don’t want you to let anybody go with you out where it is occurring. If anybody should undertake to follow you, just suggest to them that they must not go. Now you can number each shell; number the targets the same number of shells. No harm about that. Let the record show that the defendant was present when the targets and experiments were made.”

This seems to have occurred late in the afternoon, and the record -shows that on the following morning when court convened the following occurred:

■ Counsel for appellant stated: “We wish now to introduce the shells which were, fired by the jury this morning by direction of the court yesterday, and also to identify the targets made by the jury with the shells. The jury has these targets. We want these introduced as evidence.”
The Court: “The jury has the targets and the shells are here, 'and numbered. There is no need to identify them further. They will he considered in evidence now in the case, upor. your motion.”

Nothing further occurred concerning ■ this incident, and there is nothing -else in the record to indicate whether appellant was actually present when the experiments were made, though it is inferable from the recitals in the record that neither appellant nor his counsel were present when the experiments were made. It is contended now that the integrity of the trial was destroyed by permitting the jury to make these experiments outside of the court room and in the absence of the court and in the absence of appellant himself. It is. however, affirmatively eh own in the record that all that was done was at the specific request of appellant himself. He was given the opportunity to be present if he so desired, and the next morning, when the results of the experiments were brought in, counsel for appellant made the specific request that they be introduced to the jury for their consideration. The conduct of the court and jury was induced by the appellant himself, and this makes a case of invited error. If there was error committed, it was at appellant’s own request, and he took advantage of all that was accomplished in that portion of the proceedings. Under those circumstances, appellant is in no attitude to complain. The constitutional right to have the tests made in his presence, and in the presence of the court, was expressly waived. McVay v. State, 104 Ark. 629; Davidson v. State, 108 Ark. 191; Scruggs v. State, 131 Ark. 320.

We find no error in the proceedings, and the judgment is therefore affirmed.

Hart, J.,

(dissenting). Judge Humphreys and myself think that the learned trial judge had the right idea of the law when he at first announced that the jury would not be permitted to go to the scene of the killing and experiment by shooting loaded shells in the shotgun charged to have been the one used by the defendant in the commission of the homicide, and that reversible error was committed by afterwards allowing them to make such experiments in the absence of the presiding judge.

Our Constitution guarantees that- every person accused of' a crime shall have a speedy and public trial and shall not be deprived of liberty or life without due process of law. These provisions imply that the trial shall be conducted in Open court and under the protection of the court. The only power that gives efficacy to these constitutional guarantees is the trial court. The trial judge is not only an essential part of the court but he is the controlling part of the court.

This court has never before announced a principle of law from which it could be deduced that the trial judge could be absent during tbe taking of evidence in a case where the life of a human being depends upon the issue.

It has been well said that his immediate presence tends to preserve the legal solemnity and security of the trial and upholds the majesty of the law. The guilty as well as the innocent are entitled to be tried according to law in the immediate presence of the trial court, and this cannot be done where evidence is taken by the jury in the absence of the court and at another place than where the court is authorized by law to be held. Heretofore the court has gone no further than to hold that the defendant might waive his constitutional right to be confronted by the State’s witnesses and his statutory right to be present at the trial during the whole of its progress.

In Davidson v. State, 108 Ark. 191, the court held that the defendant might waive his personal presence when the verdict was returned.

It is true that in McVay v. State, 104 Ark. 629, the court held that the defendant might waive the fact that the trial judge, during the argument of counsel in a capital case, absented himself from the court for a few minutes where it was affirmatively shown that no misconduct occurred during such absence. The court, however, assigned as a reason for so holding that the argument of counsel might be waived altogether, and that, if the parties had the right to waive argument of the case, they might waive the presence of the court during the portion of the argument where it was affirmatively shown that no prejudice resulted to the defendant from such course.

No such reason exists for the presiding judge being absent while testimony was being taken. The defendant was indicted and tried for murder in the first degree. The jury returned a' verdict of guilty of murder in the first degree and fixed the punishment of the defendant at life imprisonment in the State penitentiary.

Our statute provides that the jury shall, in all cases of murder on conviction of the accused, find by their verdict whether he be guilty.of murder in the first or second degree; and that if the accused confesses guilt the court shall empanel the jury and the degree of the crime shall be found by such jury.

In construing this statute this court has held that where a defendant pleaded guilty to an indictment for murder in the first degree it is reversible error to sentence him without ordering a jury to be impaneled to find the degree of murder. Lancaster v. State, 71 Ark. 100.

It will be noted that the statute provided that the jury shall find by their verdict whether the accused is guilty of murder in the first or second degree.

In Capital Traction Co. v. Hof, 174 U. S. p. 1, Mr. Justice Gray who delivered the opinion óf the court, said:

“ ‘Trial by jury,’ in the primary and usual sense of the term at the common law and in the American constitutions, is not merely a trial by a jury of twelve men before an officer vested with authority to cause them to be summoned and impaneled, to administer oaths to them and to the constable in charge, and to enter judgment and issue execution on their verdict; but it is a trial by a jury of twelve men, in the presence and under the superintendence of a judge empowered to instruct them on the law and to advise them on the facts, and (except on acquittal of a criminal charge) to set aside their verdict if in his opinion it is against the law or' the evidence. This proposition has been so generally admitted, and so seldom contested, that there has been little occasion for its distinct assertion. Yet there are unequivocal statements of it to be found in the books.”

It has been well said that one of the excellencies of a trial by jury is that the judge is always present at the time of the evidence given in it. Therefore, under' our Constitution and laws, we think that the trial judge cannot be absent while evidence is being taken during the trial of an accused indicted for murder in the first degree.

The defendant charged with murder in the first degree must be tried in open court before the court, and not before the jury sent out by the judge to gather evidence while away from the court and away from the accused.

In Ellerbee v. State of Mississippi, 41 L. R. A. 569, Judge Whitfield, who delivered the opinion of the court, said:

“If this error were merely a' technical one, not vital in its nature, we would not, for’that alone, reverse the judgment. But the error here is of the gravest character. It goes to the very organization and constitution of the court trying the appellant on a charge of murder. So far as the lawful power of this court can be exerted, in affirming convictions for violations of the law of the land, it shall be exerted. And mere technical errors, without intrinsic merit, when we can, after a careful and thorough examination of the whole case, confidently say that the right result has been reached, that substantial justice has been done, and that, on a new trial, no other result could reasonably be arrived at, will not avail here for reversal, in civil or criminal cases. But when the defendant has been, as here, denied a right secured to him by the Constitution and the laws of the land, in a matter going to the very constitution of the court trying him, we are compelled to reverse the case. In cases the interests of society, the stability of the laws, the due administration of justice, demand a reversal. Disregard of fundamental right in the case of the guiltiest defendant, his conviction in violation of settled constitutional and legal safeguards, intended for the protection of all, are not things which affect the particular defendant in a given case alone, but, in their disastrous and far-reaching consequences, involve, in future trials, the innocent and guilty alike, subvert justice, and disorganize society. Guilt should be punished certainly, and condignly, most assuredly; but guilt must be manifested in accordance with the law of the land. Else some day the innocent, who are sometimes called to answer at the bar of their country, may come to find themselves involved in a common ruin, deprived of the legal trial necessary to the vindication of their innocence.”

The constitutional provision that the accused must be confronted by the State’s witnesses and the statutory provision that the defendant must be present at the trial are provisions for the benefit of the accused and we have held that he may waive them.

On the other hand, the provision of the Constitution that the accused is not to be deprived .of his life or liberty without due process of law involves the whole public, and neither he nor the State may waive it. The difference is vital. One is for the benefit of the accused, and the other is for the benefit of society. A jury may not convict an accused unless the law and the evidence warrants the conviction. The jury is the judge of the evidence, and the court is the judge of the law. Therefore, it is necessary that both the presiding judge and the jury be present whenever any evidence in the case is taken.


source: Caselaw Access Project

author: McCulloch, C. J.

license: Public Domain

text:
    Hot Springs Savings, Trust & Guaranty Co. v. Sumpter.
    Opinion delivered October 24, 1921.
    1. Mortgage foreclosure — bond having the effect of judgment. —Where a purchaser at a mortgage foreclosure sale bid the full amount of the mortgage indebtedness and executed a bond for the purchase money, upon which default was made, the bond had the force and effect of a judgment, under Crawford & Moses’ Digest, § 4306.
    2. Mortgages — satisfaction of bond having effect of judgment. —Where the plaintiff in a mortgage foreclosure suit procured an execution to be issued on a bond given by a purchaser at such sale and purchased the mortgaged land for a sum less than the mortgage indebtedness, this operated as a satisfaction of the bond only pro tanto.

    3. Mortgages — merger of legal and equitable estates. — Where a purchaser at a mortgage foreclosure sale of an equitable estate in land bid the full amount of the mortgage indebtedness and executed a bond for the purchase price signed by himself and by the owner of the legal title, and upon default thereon the plaintiff in the foreclosure suit purchased the land at execution sale, he acquired both the legal and the equitable title thereto. |. ! , ¡
    Appeal from Garland Circuit Court; Scott Wood, Judge;
    reversed.

      G. G. Sparhs, G. T. Gotham, and Martin, Wooton & Martin, for appellant.
    1. All questions presented in the case were decided by the Supreme Court on appeal from the decree of the chancery court, except the regularity of the execution sales. 140 Ark. 91.
    2. All questions regarding the regularity and validity of the execution sales were presented to the chancery court by bill of review, wherein the various transactions which had occurred prior to that time were alleged, including the foreclosure proceedings; appeal, return of the mandate, appointment of a commissioner, sale of the lot to Wm. Sumpter, execution of bond, default in payment thereof, issuance and return of original and alias executions, purchase of the property by appellant, and specifically attacking the validity of the execution sales. On the dismissal of the bill of review for want of equity, without appeal therefrom, these matters became res judicatae.

    3. Appellant, after the remand of the case, having by substituted complaint brought suit in ejectment, alleging ownership, right to possession, muniments of title, etc., it was the duty of appellees to set forth exceptions to the documentary evidence relied on by appellant, to which they objected, setting out the objections specifically. C. & M. Dig. § 3693. A general denial that a plaintiff in ejectment is the legal owner of the land is not sufficient. 107 Ark. 374. Courts of law take no cognizance of equitable estates, but deal only in legal titles. 9 R. C. L. pp. 840-841-842.
    4. When the bond executed by Wm. Sumpter was unpaid at maturity, either of two remedies was available to appellant, i. e. to leave the foreclosure sale set aside and a resale with judgment against Sumpter and his sureties for any deficiency, or to have execution on the bond, which had the force and effect of a judgment. C. & M. Dig. §§ 4304-6.
    When appellant elected to take out execution on the bond, the mortgage judgment and lien merged. 23 Oyc. 1475. Its purchase of lot 1 under execution on a judgment effective against all of the appellees’ property was a purchase of the entire interest in lot 1, and the same conclusion must be reached, whether the sale was made under the statutory or mortgage judgment. 1 Pick. 351; 11 Am. Dec. 188; 14 Ala. 476; 48 Am. Dec. 105; 17 Pick. 137; 2 Jones Equity, 475; 2 Jones on Mortgages § 1229; 3 Pomeroy Equity Juris § 1204 (note) ; 50 L. R. A. 714, note 717-718 with collected cases; 151 Ohio, 84; 45 Am. Dec. 562; 101 Tex. 86; 130 Am. St. Rep. 824; 41 111. 31; 89 Am. Dec. 370; Freeman on Executions, 335.
    5. The sum of $10,000 bid by the appellant for lot one, block 112, at the first execution sale, should be credited upon the judgment as a payment thereon pro tanto.

      R. G. Davies, for appellees.
    1. An equitable title will not support an action in ejectment. 105 Ark. 119; 98 Ark. 30. Plaintiff in ejectment must recover on the strength of his own title. A tenant may attorn to one who has secured the landlord’s title, but such title must have been secured before such attornment. 31 Ark. 431; C. & M. Dig. § 6557; 74 Ark. 12.
    2. The old judgment against Nannie E. Sumpter in the mortgage foreclosure proceeding was fully paid' off and satisfied by the first sale which brought the full amount of the judgment, was confirmed, and the bond given and approved. 10 Standard Procedure, pp. 21, 31; 13 Ark. 503; 11 Smed. & M. 458; 49 Am. Dec. 68; 6 Yerg. 246; 3 Id. 297; 75 Va. 757, 774; 25 Ark. 124; Id. 606; 20 Id. 68; 14 Id. 595; 10 Smed. & M. 414; 4 How. U. S. Sup. Ct. 4; 11 L. Ed. 850; 35 W. Va. 375; 14 Ark. 568; 94 Va. 700; 27 S. E. 467; 8 Ghratt. 179-209; 30 W. Va. 760; 5 S. E, 442,

      The authorities cited by appellant have reference to sales under execution issued on the original mortgage debt or vendor’s lien, whereas the sale to Wm. Sumpter was not made under execution, but by the chancery court, through its commissioner,
    The sale under the execution issued on the bond judgment was an independent proceeding — a sale of Wm. Sumpter’s interest and not Nannie E. Sumpter’s.
    There was no merger. 25 Ark. 277; 31 Id. 436; 54 Id. 457-8.
    3. The old judgment decree in the foreclosure proceedings was satisfied by the execution of a bond which was never quashed. .The judgment bond was satisfied by appellant’s bid of $10,000 for Wm. Sumpter’s equity in lot one. Mrs. Ida M. Sumpter, his widow and sole devisee, is entitled to the amount bid by appellant, and also the rents. 27 Ark. 98; 7 Id. 430; Id. 28; 71 Id. 318 31 Id. 252; 55 Id. 286; 29 Id. 270; 58 Id. 252-268. See also Freeman on Executions, 131; Jones on Mortgages §1249; 54 Ark. 457.

      C. T. Cothaon, C. G. Sparks and Martin, Wooten <& Martin, for appellant, in reply.
    The widow of Wm. Sumpter had no dower, vested or inchoate, in lot one. He had no deed or other legal title to it, nor was he seized of an estate of inheritance. C. &. M. Dig. § 3514. The proceeding was for the purpose of subjecting lot one to payment of the purchase price; and, even if it had been held by him by commissioner’s deed, no dotal rights attached. Icl. § 3518; 29 Ark. 591; 126 Id. 315; 98 Id. 118.
   McCulloch, C. J.

Mrs. Nannie E. Sumpter, one of the appellees, was the owner of certain rear estate in the city of Hot Springs, including a lot described as lot 1 in block 112, known as the Sumpter House property, and she mortgaged it to appellant to secure an indebtedness of $14,000, evidenced by promissory note.

Appellant obtained a decree of the chancery court of Garland county foreclosing the mortgage, the indebtedness at -that time, including accumulated interest and costs, being the aggregate sum of $17,100, and the property was ordered to be sold by a commissioner of the court. At the sale by the commissioner, William Sumpter became the purchaser of lot 1, block 112, for $17,100, the full amount of the decree, and executed á bond for the purchase price with Mrs. Nannie E. Sumpter and O. H. Sumpter as sureties. The sale was duly reported to the court and was confirmed, and the commissioner was ordered to execute a deed to William Sumpter, the purchaser, but he failed to pay any part of the purchase price, and the deed has never been ex: ecuted.

In this state of the matter appellant caused an execution to be issued on the bond, which, under the statute (Crawford & Moses’ Digest, § 4306), had the force and effect of a judgment. The execution was levied on lot 1, block 112, as well as other property of William Sumpter and also of Mrs. Nannie E. Sumpter. Lot 1 in block 112 was sold first; and appellant became the purchaser for the sum of $10,000. Later other property of William Sumpter and Mrs. Nannie E. Sumpter was sold under the execution for various sums. After the time for redemption from the execution sales had expired, the sheriff made deeds to appellant, who then instituted an action in the chancery court of Grarland county, alleging that it was in possession of the Sumpter House property under its said purchase, but that appellees, Mrs. Nannie E. Sumpter and O. H. Sumpter, were interfering with its said possession by' threatening to bust its tenants, and also alleging that the possession of the other property purchased by appellant under execution sales was wrongfully withheld by said appellee. The chancery court confirmed the various sales under execution and granted the relief prayed for by appellant, but on appeal to this court the decree was reversed and the cause remanded with directions to transfer the cause to the circuit court for further proceedings. We held, in substance, that the chancery court had no authority. to confirm the sales of real estate made by the sheriff under execution; that the present appellant had rightfully obtained possession of the Sumpter House property by the attornment of Mrs. Sumpter’s 'tenant, but that appellant was not entitled to the relief in a court of equity by injunction to protect its possession against trespasses remediable at law, and that, as to the property other than the Sumpter House property, the action was merely one to recover possession, and that the remedy was complete at law. Sumpter v. Hot Springs Savings, Trust & Guaranty Co., 140 Ark. 91. Upon the remand of the cause, it was transferred to the circuit court, and there was a trial before the court sitting as a jury, which resulted in a judgment in favor of appellees. The circuit court decided that appellant had, by its purchase of the Sumpter House property at the execution sale, acquired only the equitable title of William Sumpter, and was entitled to convert it into a legal title by paying the purchase price bid by William Sumpter and securing a deed from the commissioner of the chancery court. The court also held that the purchase by appellant of the Sumpter House property constituted a satisfaction of the judgmen on which all of the execution sales were based, and that the sales of the remainder of the property were void for that reason. The effect of the circuit court’s decision was to hold that appellant, by its purchase of the Sumpter House property for the sum of $10,000, merely acquired the right of William Sumpter to complete his purchase by paying the amount of the original bid and that 'this extinguished the judgment. We are of the opinion that the decision is based upon an erroneous conception of the effect of the purchase by appellant. Counsel for appellees defend the rulings of 'the court on the doctrine announced by this court that a sale of mortgaged' real estate under a judgment for the debt secured only operates as a sale of the equity of redemption. Rice v. Wilburn, 31 Ark. 109; Whitmore v. Tatum, 54 Ark. 457.

It is by no means certain that there is an analogy between the case of a salo under execution for a mortgage debt and one where there has been a decree of foreclosure, and the sale, as in this case, is on an execution issued on a statutory bond for the purchase price having the force and effect of a judgment. But, treating the analogy as complete, it does not follow 'that the trial court was correct in holding that in this case appellant only acquired an equitable title and its purchase at the sale extinguished the judgment. The original mortgage lien held by appellant was merged into the decree of foreclosure, and, when the purchaser at the sale executed the statutory bond for the purchase price, there arose in appellant’s favor two remedies — one to have the sale set aside and the property resold, or to proceed, as was done, to enforce the remedy under the bond. It was a case of a person having two remedies, but entitled to only one satisfaction. There could, however, be no satisfaction short of a payment of the entire debt, the obligation of the bond being for that amount. Appellant was entitled to receive the full amount of its debt, whether it came through he channel of the purchase under the chancery sale, or the execution sale, and the amount of the bid at the execution sale served only as a diminution pro tanto of the total debt, and only to that extent did it satisfy 'the judgment. Whitmore v. Tatum, supra.

The effect of appellant’s purchase of 'the property was precisely the same as if the purchase had been made by another person. The amount of the bid at the execution sale was, in either event, to be credited on appellant’s debt, and another purchaser at the sale would have had the right to convert William Sumpter’s equitable title into a legal one merely by paying the remainder of the debt. Upon no theory can a sale for a less sum than the full amount of the debt be held to be an extinguishment or satisfaction of appellant’s original debt.

There is still another reason why the court was in error in holding 'that all that appellant acquired by its purchase at the execution sale was the right to perfect William Sumpter’s bid by paying the full amount of the purchase price. The execution ran not only against William Sumpter but against Nannie H. Sumpter, the •holder of the legal title, and since the sale carried the interest of both parties, the equitable title was merged in the legal title. Appellant therefore acquired a complete legal title under the execution sale. This view of the matter also disposes of the contention of appellees on the cross-apjjeal of William Sumpter’s widow that the cause should have been transferred to equity for the purpose of awarding dower in the Sumpter House property and damages for the detention. The legal title being complete in appellants, William Sumpter’s widow was not entitled to dower nor to possession of the property. It was-decided on the former appeal, and the evidence is undisputed, that appellant was rightfully in possession of the Sumpter House property, and the only question left open for further determination was the validity of the execution sales as to the other property. That issue was tried by the court below, and, according to the undisputed evidence,'the sales were regular and valid.

Another issue to be tried on the transfer of the case to the law court was the question of damages for interfering by trespass with appellant’s possession, but there is no evidence in the case of any injury.

The facts being undisputed, it is the duty of the court to render a judgment in favor of appellant for possession of all of the property in suit other than the Sumpter House property (appellant being already in possession of that property), so the judgment will be reversed, and the cause remanded with directions to the circuit court to enter a judgment to that effect.


text:
    Ex parte Graham.
    Opinion delivered October 24, 1921.
    1. Bail — surrender.—Where an accused person out on bail was actually surrendered by his sureties to the proper officer and was accepted by the latter without requiring a delivery of a copy ■ of the bail bond, such surrender constitutes a substantial compliance with the statute, so as to effect the release of the sureties ftom further liability.
    2. Bail — authority to reduce. — Under Crawford & Moses’ Dig. § 2938 a committing magistrate who has fixed the amount of accused’s bail has no authority subsequently to reduce the amount of the bail.
    3. Bail — authority to take. — Crawford & Moses’ Dig. § 2938, providing that, “the defendant, after commitment and before commencement of the next term of the court having jurisdiction to try the offense, may be admitted to bail in the sum fixed by the committing magistrate by such magistrate,” etc., was repealed by the later act (Crawford & Moses’ Dig., § 2951) authorizing the sheriff to take bail in such cases.
    Certiorari to Nevada Chancery Court; James D. Shaver, Chancellor;
    affirmed.

      J. O. A. Bush, for petitioner.

      J. S. Utley, Attorney General, for respondent.
   McCulloch, C. J.

Appellant brings up for review, by writ of certiorari, the record in proceedings before the chancellor where bail was sought. The prayer of the petition below was denied on the face of the record without the introduction of testimony. So we must test the correctness of the chancellor’s ruling by the facts appearing upon the face of the record.

Petitioner was arrested in Nevada County on. a charge of felony, and was carried before a justice of the peace, who held an examining trial on August. 19, 1921, and committed petitioner to await the action of the grand jury at the next regular term of the Nevada Circuit Court, to be held in January, 1922.

The magistrate fixed bail in the sum of $2,000, which was given before that officer, and petitioner was released from custody. Subsequently the sureties on the bail bond surrendered petitioner to the sheriff of the county, who took him into .custody and still holds him in the county jail. The surrender was made without delivering to the sheriff a certified copy of the bail bond, but it is recited in the response of the sheriff in the present proceedings that the bond had been lost by the committing magistrate. Nothing else appears in the record in regard to the failure to furnish a copy of the bond.

On September 16, 1921, there appeared before the committing magistrate, according to the record of that officer now before us, the attorney for petitioner and the deputy prosecuting attorney of the county, and an order was entered reducing petitioner’s bail to the sum of $1,500, reciting that this reduction was agreed upon between the two attorneys. It is also recited in the order that a bail bond was then presented to the committing magistrate and approved. The sheriff, according to his response in this case, declined to approve the bond on the ground that the sureties were insolvent and petitioner is still in jail.

The first contention of counsel is that the surrender of custody of petitioner to the sheriff was not made in accordance with the statute in that a certified copy of the bond was not furnished, and that for that reason the surrender was illegal, and the first bond is still in force, which entitles petitioner to be discharged from custody. The statute provides that “the bail may surrender the defendant, or the defendant may surrender himself, to the jailer -of the county in which the offense was committed; but the surrender must be accompanied by a certified copy of the bail-bond to be delivered to the jailer.” Crawford & Moses’ Digest,3 2961. The two succeeding sections provide that “the bail may obtain from the officer having in his custody the. bail-bond or recognizance a certified copy thereof, and thereupon, at .any place in the State, arrest the defendant,” or that “the bail may arrest the defendant without such certified copy.” The recital of the sheriff’s response is that the bail-bond was lost, bnt this did not deprive the sureties of the right to surrender the accused into the custody of the sheriff. According to the express language of the statute, the sureties had the right to make the arrest without a copy of the bail-bond and surrender the accused to the sheriff, and the furnishing of bond was only for the protection of that officer. Only substantial compliance with the statute is required, and the actual surrender of the person of the accused to the proper officer, and the acceptance by that officer, even without a delivery of a copy of the bond, constitutes substantial compliance with the statute, so as to effectuate the release of the sureties from further liability. Sternberg v. State, 42 Ark. 127; Hester v. State, 145 Ark. 347. This disposes of the petitioner’s claim to the right to be discharged under the first bond.

It is next contended, that the committing magistrate was the proper officer to approve the second bond, and that petitioner should be discharged under that bond, notwithstanding the refusal of the sheriff to approve the bond. There is no question raised about the validity of the order of the committing magistrate reducing the amount of the bail subsequent to his original order fixing the amount. The order reducing the bail was made upon agreement between the deputy prosecuting attorney and counsel for the accused, and the refusal of the sheriff to approve the bond was not based on the reduction of the amount. The real controversy on this feature of the case relates to the question which of the officers was authorized, under the statute, to approve the bond tendered after the accused was taken into custody when surrendered to the sheriff on his former bail bond. The ground of thé--sheriff’s refusal was, ns before áfrated, that'the sureties were insolvent, and there-is no'attempt in the present proceedings to show ihat the sheriff’s refusal was arbitrary, or without justification, if he was authorized by statute to approve or disapprove the bond.

Section 2937 of’ Crawford & Moses’ Digest, which was section 60 of the Criminal Code, reads as follows:

“If the defendant is committed to jail, the magistrate shall make ont a written order of commitment, signed by him, which shall be delivered to the jailer by the peace officer who executed the order of commitment. If the offense is bailable, the magistrate must fix the sum for which bail is to be given, and, if sufficient bail is offered, take the same and discharge the defendant. If, however, sufficient bail is not offered,' the sum in which bail is required must be stated in the order of commitment.”

It is clear from this section that a bond offered at the time of the commitment is to be approved by the committing magistrate, but that, if bail is not offered at that time, the amount thereof shall be fixed and stated in the order of commitment. Section 61 of the Criminal Code reads as follows:

“The defendant, after commitment, and before the commencement of the next term of the court having jurisdiction to try the offense, may be admitted to-bail in the sum fixed by the committing magistrate, by such magistrate, or by the judge of the probate court; but, after 'the commencement of the term of the court, he can only be admitted to bail by the court or the judge thereof. ’ ’

Mr. Gantt in digesting this section, of the Code erroneously substituted the words, “or the circuit court, or the judge thereof, in vacation,” in the place of the words, “or by the judge of the probate court.” Gantt’s Digest of 1874, § 1715. This error has been brought forward in all of the later digests. Crawford & Moses’ Digest, § 2938. Doubtless the error occurred inadvertently by reason of the fact that when trie Digest of 1874 was compiled probate jurisdiction had been transferred to the circuit court, and in all instances where the statute referred to the probate court the digester changed it to.read “circuit court.” The change was made in the section now under consideration upon the theory that the change in probate jurisdiction called for a change in the wording of this section. The change, however, was inappropriate from the fact that the authority conferred by this section on the judge of the probate court to approve bail was a ministerial and not a judicial act, and if it had been judicial it could not, under the Constitution, have been conferred upon the probate court. The question then arises whether this statute should be construed 'to give authority to the committing magistrate, or the probate judge, after commitment of a prisoner, to change the amount of bail as originally fixed by the committing magistrate, or whether it merely conferred authority to accept and approve bail in the amount originally fixed by the committing magistrate. We are of the opinion that this section only conferred authority to accept bail in the amount originally fixed. It provided, in express terms, that at any time ‘ ‘ after commitment and before the commencement of the next term of the court” the accused may be admitted to bail “in the sum fixed by the committing magistrate, by such magistrate, or by the judge of the probate court.” If it was intended to allow the committing magistrate to change the amount of bail, it would not have been necessary to' put in the words “in the sum fixed by the-committing magistrate.” The use of these words negatives the idea that the magistrate should have the authority to reduce the amount of bail. Besides the same expression which confers authority on the committing magistrate to admit to bail applies with equal force to the judge of the probate court, and it is not conceivable that the framers of the statute meant to confer such authority on that officer.

Section 2940 Crawford & Moses’ Digest was section 78 of the Criminal Code and reads as follows:

“The sheriff arresting a person under a warrant or other process, in which it shall appear that the person is to be admitted to bail in a specified sum, may 'take the bail and discharge the person from actual custody. A sheriff taking bail shall be officially responsible for the sufficiency of the bail, as in taking bail in civil actions. ’ ’

In the case of Pinson v. State, 28 Ark. 397, the question arose whether or not the sheriff had authority to accept bail of a person in his custody under indictment where the amount of bail was fixed by order of the circuit court and the prisoner had not been arrested by the sheriff under bench warrant. The contention of the sureties 'against whom liability on the bond was sought was that the sheriff had no authority to accept the bond because he had not made the arrest, though the accused was in his custody. The court decided that the sheriff who had the accused in custody, regardless of the manner of acquiring custody, had authority to accept bail in the amount fixed by the court. Shortly after that decision was rendered, the Legislature enacted a statute which was approved November 12, 1875, and now digested as § 2951, Crawford & Moses’ Digest, which reads as follows:

“When- a sheriff shall commit to the common jail of his county any prisoner, under a bench warrant, in a bailable case, when the amount of bail has been fixed by the circuit judge, and when he shall so commit, under a warrant from a magistrate who has fixed the amount of bail, it shall be lawful for said sheriff to take the bail and discharge the prisoner in the same manner as he could have done before the said commitment.”

This statute makes clear the authority of the sheriff, after commitment, to accept bail in the amount fixed, either by the circuit court, on a bench warrant, or by a committing magistrate in the order of commitment. The use of the concluding words of this section shows that the purpose of the lawmakers was to make clear the authority of the sheriff to accept a bond after commitment the same as he had theretofore been expressly authorized to do in case of making an arrest under a bench warrant containing an order fixing the amount of bail. This statute expressed in clear terms what this court had in substance decided in Pinson v. State, supra, to be the effect of section 78 of the Criminal Code, but it was the last expression of the legislative will and must control in all instances where doubt arises. We are of the opinion that the enactment of this section displaced all other authority for accepting bail after commitment and, by implication, repealed section 61 (Crawford & Moses’ Digest, § 2938), which gave authority to the committing magistrate or the judge of the probate court to accept bail after commitment. It is a statute covering the whole subject of accepting bail after commitment, and therefore must be deemed to have entirely supplanted the other section conferring such authority on other officers. Our conclusion, therefor'1, is that the sheriff was the proper officer to' approve the bond; and, since his approval has not been obtained, the chancellor was correct in his order refusing to discharge the petitioner from sustody.

The writ of certiorari is therefore quashed, and the order of the chancellor affirmed.

Hart, J.,

(dissenting). The court has held that § 2951 of Crawford & Moses’ Digest repeals § 2938 of the Digest by implication, and from this holding I respect1 fully dissent.

Secs. 2937, 2938, 2943, 2944, and 2955 of Crawford & Moses’ Digest are sections of the Criminal Code, which was adopted in 1869.

Sec. 2943 provides that admission to bail is an order from a competent court, or magistrate, that the defendant be discharged froxxx actual custody oxx bail.

Sec. 2944 provides that the taldxxg of bail consists in the acceptance by a competexxt court, magistrate, or officer of the undertaking of sufficient bail for the appearance of the defendant, etc.

Sec. 2937 provides that if the defendant is committed to jail the magistrate shall make a written ox'der of coxnxnitxxxexxt. It provides further that if the offense is bailable, the magistrate must fix the sum for which bail is to. be given, and, if sufficient bail is offered, take the same and discharge the defendant. The concluding sentence of the section is that if sufficient bail is not offered, the sum in which bail is required must be stated in the order of the commitment.

Sec. 2955 provides that if the defendant is committed to jail and the application for bail is made to a magistrate, or judge, it must be by a written petition.

Sec. 2938, which was § 61 of the Code, provides how the defendant may be admitted to bail after commitment. In plain terms it says that the defendant, after commitment, and before the next terms of the court having jurisdiction to try the offense, may be admitted to bail in the sum fixed by the committing magistrate. This part of the section is too plain' for construction, and means that the defendant may be admitted to bail in the sum fixed by the committing magistrate which § 2937 requires to be stated in the commitment.

Now, who is to admit the defendant to bail in the sum fixed by the committing magistrate? This is shown by the succeeding language of the section which provides that it shall be done by such magistrate, meaning the committing magistrate, or the circuit (probate) court, or judge in vacation. I cannot see any reason for bolding that these provisions of the Code are repealed by implication by § 2951. of the Digest. The only purpose of this section is to give the sheriff power to take bail •in the amount'fixed by the court in the warrant of com•mitment. The committing magistrate still has the power ' conferred upon him by § 2938. There is no invincible repugnancy between the twe sections. Because the power is also given to the sheriff to take bail is no reason why it should be taken away from the committing magistrate. Of course the Legislature might have done so, but it is sufficient to say it’has not done so.

Conferring the power upon the sheriff to take bail after commitment is not inconsistent with the committing magistrate having such power. Therefore, there can be no repeal by implication.

There was no such taking up of the whole subject anew by the Legislature as to indicate that the several provisions of the Code above referred to were intended to be repealed by the enactment of § 2951.

The record shows that- the defendant applied to the committing magistrate under § 2938, and was admitted to bail by such magistrate. Therefore, the sheriff should have discharged him. He might have under § 2951 applied to the sheriff to take bail in the sum stated by the magistrate in his order of commitment, but he elected to- apply to the committing magistrate.

For these reasons Judge Smith and myself dissent.


author: Wood, J.

text:
    Nixon v. Allen. Hopper v. Bright.
    Opinion delivered October 24, 1921.
    1. Statutes — effect of partial invalidity. — Where a statute attempts to accomplish two or more objects, and is void as to one of them, it may still be complete and valid as to the other objects; , but if its purpose is to accomplish a single object only, and some of its provisions are void, the whole must fail, unless sufficient remains to effect the object without the aid of the invalid portion.
    2. Statutes — partial invalidity. — Where the provisions of a statute are so mutually connected with and dependent on each other, as conditions, considerations, or compensations for each other, as to warrant the belief that the Legislature would not have passed the residue independently, then, if some parts are unconstitutional, all the provisions which are thus dependent, conditional or connected must fall with them.
    3. Statutes — title of act. — While the title of an act is not controlling, it is proper to be considered in determining the meaning of the law-makers.
    3a. Statutes — construction.—It is the duty of the court to construe all the words of a statute so as to give them, if possible, some sensible meaning.

      4. Statutes — partial invalidity. — Acts 1921, No. 264, § 28, “An act to provide for more efficient county government for Pulaski County,” provides that if any section, subsection, sentence or phrase in the act shall be held unconstitutional, such decisions shall not affect the validity of the remaining portions of the act, and declares that the Legislature would have passed the remainder of the act.' Held that the Legislature meant that if any section, subsection, sentence or phrase in the act should be found unconstitutional and could be eliminated without destroying the integrity of the act as a whole, and leaving an effectual act for a complete and more efficient system of government for Pulaski County, then its purpose was to enact such residual portion of the act.
    5. Judges — act creating two county judges. — Acts 1921, No. 264, § 1, providing that there shall be two county judges for Pulaski County, is void as in conflict with § 28, Art. 7, of the Constitution, providing that the county court shall be held by one judge.
    6. Counties — board to fix salaries of officers and clerks. — Acts 1921, No. 264, § 8, creating a board to fix the salaries of county officers and the salaries and number of their clerks and employees, is invalid as a delegation of legislative power.
    7. Statutes — partial invalidity. — Acts 1921, No. 264, relating to the county government of Pulaski County, being invalid as to §§ 1 and 8, is void in toto; the various provisions of the act being connected together.
    Appeal from Pulaski Chancery Court; Robert L. Rogers, Special Chancellor;
    affirmed.

      Emerson, Donham & Shepherd and Carmichael S Erooks, for appellant Nixon and appellee Bright.
    1. The act is separable. There are ten distinct provisions of the act set out in the title thereto. It is always proper to look to the title of an act to determine its meaning. 138 Ark. 387; 124 Ark. 473. If a statute attempts to accomplish two or more objects, and is void as to one, it may still he in every respect complete and valid as to the other. Ill Ark. 108; 46 Ark. 329; 37 Ark. 356; 53 Ark. 490; 64 Ark. 555; 63 Ark. 576; 126 Ark. 263; 138 Ark. 386.
    2. The Legislature had the power to declare the act separable. 129 Ark. 548; 138 Ark. 556; 139 Ark. 160; 139 Ark. 577.

      3. None of the provisions of the act is void, unless it be the section providing for the two county judges is unconstitutional, and, if so, the act being severable, the remainder would stand in full force. However, this provision does not contravene § 28, art. 7 of the Constitution, nor does this section limit the number of county judges to one. 60 Ark. 343. It means that only one judge can hold the county court, which is to say that the judges do not sit en banc. Sec. 8 of the act, which creates •a board for allowing additional deputies, etc., is not a delegation by the Legislature of the power to legislate. The same authority has been approved numerous times in levee districts, etc., wherein the board is authorized t(j employ cl&rks and fix their salaries. As to powers delegated to a board, see 96 Ark. 419.
    4. The act is not subject to referendum. 104 Ark. 583; 104 Ark. 510; 103 Ark. 48; 105 Ark. 380; 110 Ark. 528; 106 Ark. 63; 117 Ark. 474; 106 Ark. 504; 139 Ark. 178; 117 Ark. 266; 133 Ark. 380.

      J. 8. Utley, Attorney General; Poe, Gannmvay & Poe and J. C. Marshall, for appellee Allen and appellant Hopper.
    •The act is unconstitutional in that it creates an additional county and probate court and a common pleas court, and provides for an additional judge to hold these courts. Const, art 7, § § 28, 29; 60 Ark. 343.
    It is unconstitutional also in that it provides for a board which shall have power to fix the number of deputies and their compensation, contingent expenses 'and allowances of the county officers. The Legislature alone has this power, and cannot delegate it to another. Const. Art. 16, Sec. 4; 89 Ark. 456; 40 Ark. 100; Throop on Public Offices, § 500. There is no analogy between county offices, controlled by the Constitution, and levee boards, etc., not controlled by the Constitution.
    The act is void in a number of particulars, and these void sections are so inter-related that they invalidate the whole act. 138 Ark. 381; 13 Ark. 763; 49 Ark. 110; 75 Ark. 542; 55 L. R. A. 740; 2 L. R. A. (N. S.) 653. This is true, even though the act contains a provision to the contrary, as the dominant feature of the act is unconstitutional. 129 Ark. 549; 6 R. C. L. 123; 65 Wash. 156; 144 Ark. 38.
    The act is referable. 133 Ark. 380; Acts 1911, p. 582.
   Wood, J.

These appeals are from decrees rendered by R. L. Rogers, special chancellor, declaring void act No. 264 of the Acts of 1921. The title of the act is: “An Act to provide For More Efficient County Government for Pulaski County: For Two County Judges: For Separating the Offices of Sheriff and Collector; Fora County Comptroller; For a County Purchasing Agent; For Chief Deputies; For County Officers; For a Board for Approving Additional Deputies; For Fixing the Salaries of County Officers and of their Deputies; For a Court of Common Pleas; For Fixing the -Court Costs in the Circuit and Chancery Courts; and for Other Purposes.”

Section 1 provides that there shall be two county judges for Pulaski County; one designated as county judge and the other probate judge.

Section 2 provides that the Governor shall appoint the probate judge, who shall hold office until his successor is elected and qualified.

Sections 3, 4 and 5 confer power upon the county judge, by and with the advice and consent of the grand jury, to appoint a county comptroller and a county purchasing agent. These several sections prescribe the duties and qualifications :,vspectively of the comptroller and the purchasing agent. The comptroller’s “term of office” is made concurrent with that of the county judge appointing him. He takes an oath of office and is required to furnish a -bond in the sum of $25,000 for the faithful performance of his duties. He prepares •a county budget, makes monthly reports of the county finances, expenses and obligations. He keeps a record of county property and chocks the emoluments of county and township officers, making an annual audit of the taxes of the county, and, among other things, is “to perform any service that may be required of him by the county judge or by the grand jury/’ and the county court is prohibited from considering any claim until it has first been presented to the comptroller for his approval or1 disapproval.

Sec. 6 makes offices of sheriff and collector separate and distinct, and provides that at the next general election a sheriff and collector shall be elected. It provides for bonds for these respective officers, and provides that, until January 1, 1923, the sheriff shall continue to perform the duties and receive the same compensation as he is now performing and receiving as sheriff and collector.

Sec. J provides for deputies for the county officers and a head clerk in the collector’s office. The chief deputy in the sheriff’s and collector’s office and the head clerk in the collector’s office to receive the same salary as is now provided by law.

By § 8 the three circuit judges, the chancellor and the county judge “snail constitute a board for allowing additional deputies to the county officers and fixing their compensation,” but this board “shall not have authority to decrease the present deputies and clerical force, either in number or compensation, and the contingent expenses and allowances of the officers as now provided by law, without the concurrence of the quorum court, but they shall have authority to increase the compensation of the present force, contingent expenses and allowances of the officers as now provided by law,- they may also create additional contingent expenses and allowances fox the various officers. The. county judge shall be chairman of the board. On written petition of any county officer for an additional deputy or deputies, additional contingent expenses and allowances, the board shall have a public hearing and shall grant or refuse the petition as the public interest may ¡require. Any petition granted by said board shall be allowed and ordered paid by the county court.”

Sec. 9 prescribed certain duties of the county treasurer.

Sec. 10 provides that § § 1043 and 1017 of Crawford & Moses’ Digest shall not apply to Pulaski County, and that section 1042 shall not apply in so far as it requires the collector to visit the voting- places of the county to collect taxes.

Sec. 11 prescribes certain duties of the county officers, except the collector, with reference to the filing of reports of the funds and emoluments collected by them and making settlements.

See. 12 provides that § 10 of act 145 of the Acts of 1917, approved February 28, 1917, shall not apply to the offices of county judge, probate judge, comptroller, purchasing agent, or sheriff.

Sec. 13 provides penalties for failure to comply with the provisions of the act.

• Sec. 14 designates the salaries which the county officers and their deputies shall receive, and, after specifying- the amounts, it is provided that “the collector shall, in addition to his salary, be allowed to retain as part of the emoluments of his office all fees and costs for the collection of delinquent taxes, as now provided by law.”

See. 15 provides “that the court costs for each action, suit or proceeding in the circuit and chancery courts which shall be paid in advance by the party instituting such action or proceeding, shall be as follows: In the circuit court, for each appeal from an inferior court, $7.50; all other actions or proceedings $10.00. In the chancery court, for each divorce suit, and each ex parte proceeding, $10.00; for all other suits or proceedings, $15.00.” Out of the clerk’s costs in the circuit and chancery courts the sum of fifty cents shall be paid into a library fund to be kept by the clerk of the chancery court, and expended by him, under the direction of the chancellor, in providing and maintaining a law library for the nse of the judges, county officers and practicing attorneys. The various courts are given the power to tax and adjust the cost between litigants in all cases.

Sec. 16 creates a court of common pleas to be held quarterly by the county judge.

Secs. 17 to 26, inclusive, define the jurisdiction of the court and the duties of the clerk and sheriff in connection therewith, and prescribe rules of practice governing same.

Sec. 21 is as follows: ‘ ‘ The judge of the probate court shall be judge of the court of common pleas.”

Sec. 27 provides for an additional contingent expense to be allowed the sheriff in case of riots, uprisings and emergencies, the application to be made to and approved by either of the judges of the board mentioned in section 8, which, upon such allowance and approval, “shall be allowed and ordered paid by the county court ou't of any available funds of the county.”

Sec. 28 is as follows: “If any section, sub-section, sentence or phrase in this act shall be. held unconstitutional, such decisions shall not affect the validity of the remaining portions of the act. The Legislature hereby declares that it would have passed the remainder of said act, and each and every part thereof, irrespective of such unconstitutional part.”

By the concluding section 29 the law is “made supplemental to existing laws, and shall not operate to repeal any existing laws except to the extent that it may conflict with this act, which shall take effect and be in force from and after its passage.”

We will discuss the act in the order presented in the brief of learned counsel for appellants. They ask first: Is the act severable ? This court, in the case of Oliver v. Southern Trust Co., 138 Ark. 381, 386, 387, announced the general rule upon the subject by quoting at length from Cooley’s Constitutional Limitations, 6th Ed. p. 210. A portion of that quotation is as follows: “If a statute attempts to accomplish two or more objects, and is void as to one, it may still be in every respect complete and valid as to the other. But if its purpose is to accomplish a single object only, and some of its provisions are void, the whole must fail, unless sufficient remains to effect the object without the aid of the invalid portion. And if they are so mutually connected with and dependent on each other, as conditions, considerations, or compensations for each other, as to warrant the belief that the Legislature would not pass the residue independently, then, if some parts are unconstitutional, all the provisions which are thus dependent, conditional, or connected must fall with them.” See also Davis v. State, 126 Ark. 260-63; Snetzer v. Gregg, 129 Ark. 542; Skipper v. Street Imp. Dist. No. 1, 144 Ark. 38-44.

The purpose of this act, as expressed in the first sentence of its title, is: “To provide for more efficient county government for Pulaski County. ’ ’ After thus declaring the purpose, the title enumerates the various particular methods by which the “more efficient government” is to be effected. The act, as shown by its title as well as the subject-matter of its various sections, was intended to be, and is, if valid, a comprehensive and complete plan of government for the county of Pulaski. So many of the sections of the act are interrelated and dependent upon each other, we are convinced that, if the Legislature had known in advance that several of the more important sections would be eliminated because of their unconstitutionality, it would not have enacted the remaining portions of the act. For some of the provisions of this act were already the law. To illustrate, this act fixes the salary of the county assessor at $4,000, and that was his salary when the act was passed. Likewise it fixes the salary of the collector a't the same as now provided by law. The act under review provides that the county judge, with the advice and consent of the grand jury, shall appoint a county comptroller. The county judge, with the advice and consent of the grand jury, had the power when this act was passed to select and appoint an auditor.

We mention these simply as illustrations, and there may be others, to show that the purpose of the Legislature by the act under review was to enact a complete scheme for the government of the county, which was to stand or fall as a whole, and which could not be separated into parts. This is undoubtedly the correct conclusion if the intention of the law-makers is to be gathered alone from a consideration of the title and the subject-matter contained in the various sections of the act, and without regard to section 28. The title of the act should be paraphrased and construed as if it read: “We intend by this act to provide for more efficient government for Pulaski County in the following particulars.” Then, after' enumerating the particulars that were to be embraced in the law, it' concludes: “And for other purposes.” The concluding clause, “and for other purposes,” means that any other purposes not enumerated, but found in the body of the act, would be purposes of a like nature with those already mentioned to effectuate or complete the system of government proposed. While the title of the act is not controlling, it is proper to consider it in determining the meaning of the law-makers. School Dist. v. Howell, 124 Ark. 475: Oliver v. Southern Trust Co., supra.

Counsel for appellants, in the second place, argue that “the Legislature had the power to declare the act severable,” and that it has done so by section 28, which we here again set out:

“If any section, sub-section, sentence or phrase in this act shall be held unconstitutional, such decisions shall not affect the validity of the remaining portions of the act. The Legislature hereby declares that it .would have passed the remainder of said act, and each and every part thereof, irrespective of such unconstitutional part.”

In several of onr cases, we have recognized the doctrine that where statutes are worded in a manner to justify it the Legislature may express its will that the provisions of such statute declared hy the court to be valid shall stand, notwithstanding other provisions in the same statute may be declared unconstitutional, and that the courts will respect and carry out such legislative declaration. Snetzer v. Gregg, supra; Sallee v. Dalton, 138 Ark. 549; Milwee v. Tribble, 139 Ark. 574.

We need not decide, and do not decide, whether it was in the power of the Legislature, by the sweeping language used in section 28, to validate each and every part of this act which might constitute a valid law when standing alone and disconnected from such other parts as might be found unconstitutional. We do not believe that the Legislature intended by the language of the 28th section to declare that it would have passed each and every part of the act, even though several of its outstanding provisions were unconstitutional and stricken out. For the act, as we have seen, was intended as a whole to provide a complete and more efficient system of county government. If such strict and literal meaning is given to the language of section 28, then the Legislature “doth protest too much, methinks.” For, if such were its meaning, it has impeached itself for doing, as we have shown in certain particulars the vain and nonsensical thing of enacting or re-enacting laws already existing and covering precisely the same subject matter. Would the enactment of such laws provide for a more efficient government for Pulaski County? Certainly not.

It is our duty to construe all the words of the statute so as to give them, if possible, some sensible meaning. Therefore, we conclude that the Legislature by the broad language used in § 28 meant that “if any section, sub-section, sentence or phrase” in the act were found unconstitutional and could be eliminated without destroying the integrity of the act as a whole and leaving an effectual act for a complete and more efficient system of government for Pulaski County, then its purpose was to enact suck residual portions of tke act.

This brings us to tke question: “Is any part of tke act unconstitutional?”

Sec. 28 of article 7 of our Constitution is as follows : ‘ ‘ Tke county courts shall have exclusive original jurisdiction in all matters relating to county taxes, roads, bridges, ferries, paupers, bastardy, vagrants, tke apprenticeship of minors, tke disbursement of money for county purposes, and in every other case that may be necessary to tke internal improvement and local concerns of tke respective counties. Tke county court skall be held by one judge, except in cases otherwise herein provided.” Tke exception has reference to tke quorum court.

Tke first section of the act under review providing that there skall be two county judges for Pulaski County, “one to be designated county judge” and tke other “probate judge,” clearly contravenes tke above provision of the Constitution. Under the Constitution there can not be more than one county judge. Tke limitation is found in the numeral£ £ one ’ ’ in tke clause, ‘£ Tke county court shall be held by one judge,” and likewise in tke very nature of tke jurisdiction of suck court and tke functions of its presiding judge. Martin v. State, 60 Ark. 343. Tke county judge is tke governor, so to speak, in tke affairs of tke county in the matters over which the county courts are given exclusive jurisdiction. He is given supreme or exclusive original authority over the matters enumerated in the Constitution, and suck authority, in the very nature of tke case, must be exercised by one presiding and controlling genius. There is no room under tke Constitution for a division of authority and responsibility in tke office of county judge. Tke idea that there can be two county judges, either one of whom could preside over tke county court, would be incompatible with tke intention of tke framers o,f tke Constitution in conferring jurisdiction and power upon sucli court and its judge. The functions of this office in its control over taxes, roads, bridges, and other matters of local concern and internal improvement, aré indivisible and can only be exercised by one person.

To avoid cross purposes and inextricable confusion in the government of the affairs of the county enumerated in article 7,. see. 28 of the Constitution, supreme or exclusive original authority is lodged in one functionary — the county judge. It may be well to note here some of the incongruities of this act that forcibly illustrate the hopeless muddle into which the government of the affairs of the county would be plunged, grounded upon the notion that they can be administered by two county judges. The act provides for two county judges and furnishes no method for determining which of these judges shall hold the court. It provides that the governor shall appoint a probate judge, but .there cannot be any vacancy in the office of the probate judge as long as there is a county judge who must, ex officio, fill it. If the Governor in advance of the next general election could appoint a probate judge, after that time only the county judge, and not the probate, could be elected, and who would have the power then to say which one of the county judges should preside over the county court and which over the probate court? The act suggests no method for determining.

Sec. 16 of the act creates a court of common pleas to be held by the “county judge,” while section 21 provides that “the judge of the probate court shall be the judge of the court of common pleas.” Sec. 32 of article 7 of our Constitution provides that the General Assembly may authorize the judge of the county court to hold a court of common pleas. Sec. 21 of the act under review, conferring power upon the judge of the probate court, to perform that function, is therefore void; and if this section were stricken out and section 16 allowed to stand, and the. section creating the two county judges were also. allowed to stand, then which one of these judges would hold the court of common pleas? If alternately, when and how?

Sec. 3 gives the county judge the power to appoint a county comptroller. Section 5 gives the county judge the power to appoint a purchasing agent. Section 8 makes the county judge the chairman of the county board, and section 15 gives the common pleas court power to tax and adjust cost between litigants in all cases before that court. If there were two county judges, which one of them is to perform these several and various functions? ' Who, under the act, has the power to determine which one of the county judges shall do so? The act is silent on this subject. If there could be two county judges, both must be elected, and elected as county judges at the same time, and both must have equal authority and perform the same functions under the act.

Now, who in this mix-up would have the power to say which one of the county judges should exercise the several functions imposed upon the county judge in various sections of this act? Could the two county judges voluntarily settle these matters between themselves, or, in the event they should not agree concerning these things, where is the .tribunal to settle the difference between them and to have these important duties performed? The act furnishes no answer, and none could be given. It is manifest from the foregoing that it is wholly beyond the power of the Legislature to create two county judges.

Another salient provision in this plan of county government is contained in section 8. That section provides that the three circuit judges, the chancellor, and the county judge shall constitute a board. To that board is given power to allow additional deputies to county officers and to. fix their compensation, and, with the concurrence of the quorum court, to decrease the number of deputies and clerical force and their compensation as well as the contingent expenses and allowances of the officers as now provided by law. To this board is given the authority, without the concurrence of the quorum court, to increase the compensation of the present officers, contingent expenses and allowances of the officers, as ■ now provided by law, and also to create additional expenses and allowances for the various officers. On written petition of any officer for additional deputies, contingent expenses and allowances, the board shkll have a public hearing and refuse or grant the petition as the public interests may require. Any petition granted by such board “shall be allowed and ordered paid by the county court.’ Sec. 14 of the act provides a complete schedule of salaries for the various officers of the county and their chief deputies and for the comptroller and the purchasing agent.

Article 16, section 4, of our Constitution provides: “The General Assembly shall fix the salaries and fees of all officers in the State, and no greater salary or fee than that fixed by law shall be paid to any officer, employee, or other person, or at any rate other than par value; and the number and salaries of the clerks and employees of the - different departments of the State shall be fixed by law.” By article 19, see. 23 of our Constitution “no officer of any county shall receive directly or indirectly for salary, fees and perquisites more than $5,000 per annum and all above this sum shall be paid into the county treasury.”

It will be observed that the board created by section 8, with the concurrence of the quorum court, has' the power to decrease the number as well as the compensation of the deputies of the officers, which in section 14 of the same act are designated and their annual salaries fixed at a specified amount. The board also has the power to decrease, with the concurrence of the quorum court, expenses and allowances of officers as now provided by law, and, without the concurrence of the quorum court, this board is given the power “to increase the compensation of the present force,” which would include the chief deputies, and also the contingent expenses and allowances of the various officers as now provided by law; and also may create additional contingent expenses and allowances for all the various officers. The power to fix the salaries and fees of all officers in the State, and the number of their clerks and employees and their salaries, is a function, which, within the limits of the Constitution, is lodged in the supreme law-making power of the State — .the Legislature. Cain v. Woodruff County, 89 Ark. 456; Humphrey v. Sadler, 40 Ark. 100; Throop on Public Officers, § 500. The General Assembly cannot delegate this legislative power to any individual, officer, or board.

We conclude, therefore, that section 8 of this act is repugnant to article 16, section 4 of our Constitution. Article 16, section 4, together with article 19, section 23, were intended by the framers of our organic law to forestall, if possible, any extortion, extravagance, or corruption on the pari of those'entrusted with the administration of public office, and to promote the general welfare by protecting the people from exorbitant taxation in order to meet the necessary burdens of government. A critical analysis of the various provisions of this act will disclose that sections 1 and 8 touch at some angle nearly all of the other provisions of the act except those embodied in the two last sections. Sections 1 and 8 are to this act as is the hub to a wheel or the foundation pillars to a building. Since these two sections fall under the condemnation of the Constitution, they must bo removed from the act, and thereby the whole fabric of the county government built up by the framers of this law necessarily falls to pieces. We need not pursue the subject further. The decrees of the special chancellor are in all things correct, and they are therefore affirmed.