text:
    Swearingen v. State Use of Benton County.
    Opinion delivered October 8, 1923.
    Clerks op courts — fees—payment into - county treasury.. — Under Acts 1905, p. 653, putting the circuit clerk of Benton County upon- a fixed salary which shall be full compensation “for all the services required of him by law as such circuit clerk, ex officio recorder, chancery clerk and commissioner,” and providing that fees collected shall be paid into the county treasury, held that a fee of one dollar for redemption of lands sold for road improvement taxes, provided by Acts 1921, p. 573, mfist be treated as one of the fees which the clerk is required to collect and pay into the county treasury.
    Appeal from Benton Chancery Court; Ben F. McMahan, Chancellor;
    affirmed. .

      Duty & Duty, for appellant.
    Prior to tbe enactment of act 534 of 1921, chancery clerks were not called npon to perform the duties there enumerated, hence this was an additional service which was not in the mind of the Legislature of 1909 when it passed the salary act. The case in 88 Ark. 386, relied upon by appellee in the lower court, is not in point. That act contemplated the doing of the things which were the subject of the controversy, and was a salary act providing that the salary mentioned was in full compensation of all services which -the clerk was required by law to perform. The offices of circuit clerk and chancery clerk are separate, and the act in question was intended to give the chancery clerk additional compensation for doing something that had not before been required of him. Const. 1874, art. 7, § 19. 110 IT. S. 688' contains a discussion on the question of title to emoluments in cases of dual offices. In case of one officer holding dual offices, where provision is made for services rendered in each capacity, compensation should be made according to the provisions of the statute that applies to it, rather than to deny it on technical grounds. 15 Fed. 641.
    No brief for appellee.
   Smith, J.

This appeal involves the right of appellant, the circuit clerk of Benton County, as ex-officio chancery clerk of that county, to collect and appropriate to his own use the fee of one dollar allowed the chancery clerk for each tract of land redeemed from sale for nonpayment of road improvement taxes under act 534 of the Acts of 1921 (Acts 1921, p. 573).

By this act it is provided that, if certain improvement district taxes are not paid by April 10, the collector shall file a list of the delinquent lands on or before the second Monday in June with the clerk of the chancery court, and the chancery clerk is required to record this list on or before the 1st day of July. Thereafter re-, demptions are made by applying to the chancery clerk, and for Ms services in filing and recording the list of lands, and for issuing certificates of redemption, a fee of one dollar for each, tract is allowed, which is charged as costs against the tract redeemed.

Bead by itself, there appears to be no question hut that the clerk is entitled to tMs fee; but that officer has been placed on a salary, and the effect of that legislation must be taken into account to determine what should be done with this dollar after it has been collected.

By act 249 of the Acts of 1905 (Acts 1905, p. 653) certain officers of Benton County were placed on salaries. By § 1 of this act it is provided “that the clerk of the circuit court and ex-officio clerk of the chancery court of Benton County shall be allowed fees as follows:” and there follows a list of fees which may be charged, after which list the following sentence appears; “For services not above specified, fees should be charged as provided by the statute.”

Section 5 of this act 249 requires the officers whose fees are fixed to keep a record of all fees earned; and § 6 requires the payment of those fees into the county treasury each quarter. Section 7 provides the annual salary of the circuit clerk, which is made payable quarterly, and further provides that the salary there fixed shall be full compensation “for all the services required of him'by law as such circuit clerk, ex-officio recorder, chancery clerk, and commissioner. ” There have been amendments to this salary act, but the provisions about charging and collecting and paying over fees have not been changed.

This act of 1921, in so far as it affects appellant, must be read in connection with the salary acts of Benton County; and, when so read, it appears to add a service not specified in § 1 of the original act, for which a fee of a dollar for redemption of lands shall be charged as provided in this act of 1921.

The case of Keeling v. Searcy County, 88 Ark. 386, supports this view. Keeling was the circuit clerk of Searcy Comity, and there was a special act fixing his compensation which is not substantially different from the Benton County act on that subject. Keeling .took the affidavits of certain persons who had entered government lands, and charged the fees which were fixed by the act of Congress for that service. It was held by this court that the salary act “ embraces every fee or emolument accruing to the clerk by reason of his official capacity, and allows the withholding of none. It includes every fee that was earned by him in his official capacity” (•Cases cited).

Counsel for appellant seek to distinguish that case as applied to the facts of this, upon the ground that the fees there in question had been fixed before the Searcy County act was passed; whereas the fees here in controversy were provided for after the passage of the salary act and the acts amendatory thereof. We think, however, that this difference is unimportant. The act of 1921 is, in effect, so far as it affects the question at issue, an amendment of the fee-bill found in § 1 of the salary act of 1905, and must be treated as one .of the fees provided for by law which he is required to collect and account for under § 6 of that act.

The decree of the court below accorded with this view, and it is therefore affirmed.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    Hanson v. State.
    Opinion delivered October 8, 1923.
    1. Criminal law — change of venue — presumption as to indictment. — Where a criminal case was transferred to an adjoining county on a change of venue, though the transcript of the record filed in such case fails to show the opening of the court from which the venue was changed or the impanelment of the grand j’ury or the return of the indictment into court by the grand j’ury, an indorsement by the clerk on the indictment that it “was filed in open court in the presence of all the grand j’ury” makes a prima facie case that defendant was properly indicted, which must be regarded as conclusive m absence of any, showing to the contrary.
    2. Banks and banking — insolvency—evidence.—Where a committee of bankers examined the assets of a bank, it was not error, in a prosecution of an officer of the bank for assenting to the reception of deposits after he knew the bank was in a failing condition, to permit such committee to testify that the bank was in a failing condition.
    3. CRIMINAL law — hearsay.—In a prosecution of a bank officer for permitting deposits to be received while the bank was in failing condition, testimony of an express agent that he had received for collection a draft from a bank in a neighboring town with directions to accept nothing but legal tender in payment was incompetent to show that the bank in question was in a failing condition.
    4. Banks and banking — insolvency—evidence.—Testimony of a depositor, in prosecution of a bank officer for permitting deposits to be received while the bank was in failing condition, that, after the bank closed its doors, he found a check for $1,500 with his name signed to it, which was signed by the cashier of the bank, in order to make it appear that the cashier’s account was not overdrawn, held admissible as tending to show the bank’s failing condition.
    5. Criminal law — evidence—hearsay.—In a prosecution of a bank officer for permitting deposits to be made in a bank while in a failing condition, a statement made by the cashier, before the bank failed that defendant and another were getting too much money out of the bank was inadmissible as being hearsay.
    6. Criminal law — refusal of abstract instruction. — It was-not error to refuse an instruction in the language of a section of the banking law where much of the section was abstract, so far as the issues in the present case are concerned.
    '7. Banks and banking — insolvency—receiving deposits — instruction. — In a prosecution of , a bank official under Crawford & Moses’ Digest, § 697, for assenting to reception of deposits while the bank was in failing condition, it was not error to refuse to charge that the phrase “in failing condition” .meant that the bank was not only insolvent in fact, but that it contemplated closing its doors on that account; the phrase “in failing condition” being used in the statute as synonymous with the word “insolvent.”
    Appeal from Nevada Circuit Court; J. H. Crawford, special judge;
    reversed.

      Searcy' & Searcy, Tillman P. Paries and McKay & Smith, for appellant.

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

Appellant was a director and vice-president of the Lafayette County Bank, and was indicted and convicted for assenting to the reception of deposits by that bank after he knew the bank was in a failing condition. ,. i -i

The trial was had in Nevada County, upon a change of venue from Lafayette County, and for the reversal of the judgment it is first insisted that the transcript of the record made up by the clerk of Lafayette County contains no entry showing • the opening- of the circuit court of Lafayette County, nor of the impanelment of the grand jury,' nor of the return of the indictment into court by the grand jury. The indictment is in the usual form, and purports to have been regularly réturned by the grand jury of Lafayette County, and the transcript made up by the clerk of that county and certified to by him when the venue was changed, recites that it was “filed in open court in the presence of all the grand jurors this the 22nd day of February, 1922. J. H. Landers, Clerk.”

In support of this contention the case of Binns v. State, 35 Ark. 118, is relied on. In that case a motion in arrest of judgment was filed upon two ground: (1), that the transcript of the record on change of venue contained nó entry showing the opening of the circuit court at the term at which the indictment purported to have'been found; and (2), that it - contained no entry showing the impaneling of the grand jury. The court held the objections were well taken in fact, but before final judgment was filed a certiorari was ordered and a transcript returned which embraced the entries omitted in the, original transcript, and the judgment was affirmed.

The opinion in that case was written by Chief Justice ENGLISH, and cited the earlier case of Green v. State, 19 Ark. 178, the opinion in which case was also written by Judge ENGLISH.

In this case of Green v. State, the motion in arrest was filed after the return of the verdict of the jury, which submitted the question, “whether a grand jury had been, in point of fact, duly impaneled at the term of the court at which the indictment, upon which he had been tried, purported on its face to have been found.” It was upon this question that the writ of certiorari issued, and the court approved that action as a proper practice.

In this case of Green v. State, supra, there was a second ground for the arrest of the judgment, this being that the transcript did not show that the indictment was returned into open court by the grand jury. This omission was not cured by the return of the clerk to the writ of certiorari, although a statement of the clerk accompanying his return cured this omission, hut the court disregarded this statement of the clerk as amounting to nothing, and held that the motion in arrest should have been sustained because there was no showing in the transcript that the indictment was returned into open court by the grand jury. But in the .recital of facts leading up to this conclusion the court said: “It is true that there is no record entry copied in the transcript showing that the grand jury did return the indictment into court. Nor is there any note by the clerk upon the back of the indictment of its having been returned into court, and filed, as it appears in the transcript.”

We think the intimation is clear that, if there had been a notation upon the back of the indictment that it had been returned into, open court and filed, the court would not have held that there was no showing that the indictment had been returned into open court.

This decision was handed down in 1857, and at a time when matters of form were more scrupulously followed than they have been since the adoption of the Criminal Code, which occurred long after the above decision was rendered. Here there was a notation on the back of the indictment, made by tbe clerk of the conrt, that the indictment “was filed in open conrt in the presence of all the grand jury,” and, in the absence of any evidence to the contrary, we assume that the trial conrt accepted this notation as a fact, and we think that action was warranted; and if these recitals are accepted as true, there was a term of conrt in which, during a session thereof, a grand jury, in the presence of all its members, returned the indictment upon which appellant was tried.

We know, as a matter of law, as well as from the transcript before ns, that the venue was changed on appellant’s motion and for his benefit and the proceedings thereby removed from the county where the indictment was returned to the county where the trial occurred, and we think the recital indorsed by the clerk on the indictment makes a prima facie showing that appellant had been properly indicted, which must be regarded as •conclusive in the absence of any showing that that recital is untrue.

It is very strongly insisted that the court erred in permitting certain witnesses to testify that the bank was in a failing condition on December 16,1920, this being the day on which the deposit was received. It appears that a committee of bankers examined the assets of the Lafayette County Bank. They did this by going through the collateral held by that bank, and by inquiring about the security for each piece of paper. They did this to determine whether the banks which they represented should extend additional loans to the Lafayette County Bank. It was admitted that the Lafayette County Bank had allowed its cash to fall below the legal reserve required by § 689, C. & M. Digest, and the assistance requested from the committee of bankers would have met this requirement. The committee was assisted in its examination of the bank’s assets by the cashier of that institution, hut appellant was not a party to the examination. At the conclusion of this examination it was the opinion of each member of the committee that the bank was in a failing condition;''and it is the admission of this testimony which is assigned as error.

We think the testimony was competent, and that it was something more than the mere expression of an opinion. The solvency of the bank conld not be ascertained^ as a mere matter of addition of its assets and the sub-,, traction of its liabilities. The bank’s solvency depended on the value of its assets, and the examination by the committee was to determine that fact. The assets were admittedly not worth their face, and the examination was to determine what they were worth. The liabilities of the bank were admitted, and we think it was no usurpation of the province of the jury to permit one to testify that he had gone through the assets of the bank and had found what their value was. Of course, this testimony was not conclusive on the jury, and other testimony on the'subject was heard, including that of appellant himself, who, in great detail, testified in regard to the value of collateral which he had deposited with the bank as the basis of the credit which he had himself obtained. These bankers were shown to be familiar with the value of the assets about which they testified, and we think there was no error in the admission of their testimony.

The court permitted the agent of the express company in the town where the bank was located to testify that, as agent of the’express company, he had received a collection from a bank in Texarkana, with directions to accept nothing but legal-tender or money in payment of the draft sent him for 'collection, the usual custom being to accept exchange drawn' on some .other bank. The effect of this, testimony was, of course, to show that the Texarkana bank regarded the Lafayette County Bank as in failing condition, and this is hearsay testimony, pure and simple., There was no showing upon what facts this opinion was based, nor that it was the opinion of the Texarkana bank officials, except as it was represented so to be by the testimony of the express agent." In the case of Within v. State, 121 Ark. 219, we held that the insolvency of a bank might be shown by circumstantial. evidence, but that the insolvency must be shown by competent evidence and could not be shown by hearsay evidence, and that hearsay evidence would be no more admissible to prove insolvency than it would be in any other case.

Objections were saved to the action of the court in permitting witness Tatum to testify that, after the bank had closed its doors, he found a canceled check for $1,500, with his name signed to it, which he had not signed or authorized any one else to sign. This check had been made out and signed by Bolger, the cashier of the ■bank, and was done by that officer in order that it might not appear, after the State Bank Commissioner had taken over the affairs of the bank, that his (the cashier’s) account was overdrawn.

The admission of this testimony is defended upon the ground that it tended to show that the bank was in failing circumstances when the deposit in question was received. It did tend to show that fact in this way. If' this transaction were unexplained, it would appear that the bank did not owe Tatum the deposit, $1,500, when, in fact, that obligation subsisted. It cannot be said that it did not affect the showing of solvency. The jury might well have found that the overdraft with which the cashier would be charged was not the equivalent of a casi) deposit. As' a matter of bookkeeping, the result may not have been changed, but as a matter of the value bf the bank’s assets it might, in the opinion of the jury,'have made quite a difference. There was no showing that appellant knew of this transaction or was a party to it, and' he was entitled to have the jury told that the testimony could be considered for the purpose only of determining ■whether the bank was in failing condition. But, as we have said, it was competent for that purpose, and, this being true, it was not rendered incompetent because it tended to show that the cashier may have committed an offense not charged in the indictment, and one for which a'ppellant was not responsible, except that it was one of many transactions which tended to show that the hank was in failing condition. Johnson v. State, 156 Ark. 459.

The court permitted witness Lindsey to testify that in May, 1920, before the bank closed its doors in December, 1920, Bolger, the cashier, had told him, in the absence of appellant, that there were two men, of whom appellant was one, who were getting too' much money out of the bank, and that he (Bolger) regretted that he had not quit the hank on the first day of January. This was hearsay testimony, and incompetent as such, and was not made competent as tending to contradict any testimony of Bolger’s on the subject of the bank’s solvency, and error was committed in admitting this testimony.

The bank had a capital of only $10,000, and a surplus of the same amount, and yet appellant was, directly and indirectly, indebted to it to the extent of over $70,000. He attempted to show that his collaterals were worth this money, and that the bank was not insolvent and could have met its obligations if it could have continued in business and in the usual and ordinary way have realized on the collateral given it by himself and others who had borrowed money. This issue of fact was submitted to the jury; but appellant says error was committed in giving and in refusing to give instructions on that subject.

Appellant asked instructions on the meaning of the phrase, “in failing condition,” as used in the statute under which he was convicted. One of these instructions was a substantial copy of § 717, C. & M. Digest, which enumerates the conditions under which a bank shall be deemed to be insolvent; but much of that section is abstract so far as the issues in this case are concerned, and for that reason it was properly refused.

Appellant asked instructions which apparently distinguished between an insolvent bank and one in failing condition, and asked the court to charge, in effect, that the phrase, “in failing condition,” meant that the bank

was not only insolvent in fact but that it contemplated closing its doors on that acount. This instruction was properly refused.

As has been said, appellant was charged with having violated § 697, C. & M. Digest, and in this section the word “insolvent” appears to be synonymous with the phrase, “in failing condition,” which immediately follows it, and that it was .so employed is evidenced by the fact that § 717 defines the five conditions under which a bank is to be deemed insolvent, hut contains no definition of the phrase, in failing condition,, and no definition of that phrase occurs elsewhere in the chapter on banks and banking.

There have been cases which define the word “insolvent” and the phrase, “in failing condition,” but it is unnecessary to review those cases, as this court has fully discussed the meaning of insolvency as used in the section under which appellant was convicted, and no' useful purpose would be served by reviewing those cases. Wilkin v. State, 121 Ark. 219; Skarda v. State, 118 Ark. 176. See also vol. 2, Morse on Banks and Banking (5th ed.), § 622, pp. 303, 304; vol. 1, Richie, Banks and Banking, § 61 (3b) pp. 401 et seq.

Counsel for appellant assign as error the action of the court in refusing him a continuance. But we do not consider that question, as we are reversing the case on another ground.

There was also an objection to the remarks of the prosecuting attorney on the fact that appellant had taken a change of venue. This was an improper argument, but the error thereof appears to have been cured by .the admonition of the court to disregard it.

For the errors indicated the judgment must be reversed, and the cause remanded for a new trial.


author: Humphreys, J.

text:
    Davis v. Parish.
    Opinion delivered October 8, 1923.
    1. ’ Railroads — operation op train — burden op proof. — In suits against a railroad company for the recovery of damages done to property by the running of its trains, the burden of showing due care upon its part is cast upon the railroad company.
    2. Railroads — negligence—evidence.—Though the engineer and fireman testify that they were keeping a lookout and failed to see a dog that was killed on the track, and that they gave the . statutory signals at a crossing, a finding that the railway .company was negligent will be sustained where there was testimony tending to contradict their testimony.
    Appeal from Chicot Circuit Court; Turner Butter, Judge;
    affirmed.

      E. B. Kinsworthy and B. 8. Kinsworthy, for appellant.
    ' The dog' was in a place of safety, and the train operatives had the right to assume that it' would not run into a place of danger. 129 Ark. 583; 78 Ark.'234. There was no duty resting upon the engineer to slow down or take other measures for the protection of the dog until he saw that it was going into a place of danger. 78 Ark. 234. The accident was unavoidable and the railroad- company was not liable. Davis v. Porter, 153 Ark. 375; 89 Ark. 120; 78 Ark. 234; 52 Ark. 96. •

      Golden & Golden, for appellee.
    The presumption is that the dog was killed by the running of the train. C. & M. Digest, 8574.' The killing made a prima facie case of negligence on the part of appellant. 93 Ark. 28; 63 Ark. 643 ; 72 Ark. 23; 90 Ark. 1. The findings of fact by the court, if sustained by any substantial evidence,- will not be overturned on appeal. 36 Ark., 261; 60 Id. 250; 114 Ark. 170; 107 Id. 281; 111 Ark. 190;. 112, Ark; 47:
   Humphreys, J.

Appellee instituted suit against appellant in the circuit court of Chicot County to recover $125 on account of the alleged negligent killing of his Airedale dog by tbe operators of appellant’s southbound train No. 105, near Dermótt, Arkansas, on January 6, 1920. Appellant filed an answer denying tbat tbe dog was killed tbrongb tbe fanlt and negligence of its operators.

Tbe case was submitted npon tbe pleadings and testimony of tbe court, sitting as a jury, wbicb resulted in a verdict and consequent judgment for $75 in favor of appellee, from wbicb is this appeal.

Appellant contends for a reversal of tbe judgment upon' tbe alleged ground tbat tbe evidence was insufficient to warrant the verdict. W. P. and -W. A. Daniels testified, in substance, tbat tbey were approaching Smith’s Crossing near Dermott, at tbe distance of one-quarter mile, on January 6,1920, when appellant’s southbound train passed them; tbat they were certain tbe whistle was not blown, and tbat no stock alarm was sounded; tbat when they reached the crossing they observed the bruised and torn body of an Airedale dog between tbe rails, wbicb bad been dragged on tbe track about twenty feet, according to tbe surrounding appearances ; tbat tbe body was warm, and tbat warm blood was in the road and on tbe railroad. That tbe dog’s entrails were strewn across tbe public road and along tbe track for about twenty feet; that tbe dog’s head was cut off and lying outside the rails; tbat they took tbe collar off tbe dog’s neck, wbicb had appellee’s name written upon it.

Josh McCarty, tbe engineer, testified, in substance, tbat, as tbe train approached Smith’s Crossing, he gave tbe statutory signals and was keeping a- lookout; tbat he saw two ,dogs near the edge, of tbe right-of-way, .one black and other an Airedale.; tbat they ran across the right-of-way and followed along by the side of the engine, 'barking at tbe cylinders; tbat tbe engine passed them at the road crossing; that they were not in danger at any time, from tbe engine, always being in a place of safety, and for tbat reason be did not stop tbe train or sound tbe stock alarm.

J. E. Beane, the fireman, testified, in substance, that he was on his box, keeping a lookout ahead, and that the statutory signals for the crossing was given; that it was impossible for him to have seen the dogs approach from the engineer’s side, and that he observed no dog on the track ahead of him; that he knew nothing whatever of any dog being killed by the train.

The testimony tended to show the dog was worth $75 or more.

Bailroads are made responsible by statute, in this State, for all damage to property caused by the running of their trains. Crawford & Moses’ Digest, § 8562. In considering the statute this court has said that “when a damage of property is shown to have been caused by the operation of trains coming in contact with it, a prima facie case of negligence is made against the railroad company.” St. L. I. M. & S. B. Co. v. Gibson, 107 Ark., 431. And has also said that “in suits against a railroad company for a recovery of damages done to property by the running of its trains, the burden of proof of showing due care upon its part is cast upon the railroad company.” Green v. St. L. I. M. & S. R. Co., 99 Ark. 226.

It is established by the undisputed facts in this case that appellee’s dog was killed by appellant in the operation of its train, so, under the rules of construction quoted above, the killing must be regarded as negligent, unless the testimony reveals the fact that due care was used by the servants of appellant to prevent the injury. We do not think the testimony of the engineer and fireman necessarily rebuts the presumption of negligence arising out of the act of killing the dog. Neither of them saw the dog killed or venture any explanation of how it was killed. Both the engineer and fireman testified that the statutory signals for the crossing were given, but in this respect they were contradicted by W. P. and W. A. Daniels, who testified that they observed the passing train, and are certain the whistle was not blown. Physical facts show that the dog was struck on the tracks north of the public road and dragged across the public road and along the railroad track for twenty feet in the direction the train was going. Blood was found in the public road and on the railroad track, and the entrails of the dog were strewn across the public road and along the railroad track for twenty feet in the direction of the dog’s body. According to the testimony of the engineer, the dog was running along the side of the engine, barking at the cylinders, when the engine crossed the public road. The jury therefore may have concluded that the testimony of the engineer was untrue, as being in conflict with the physical facts; that he had not given the statutory signals as claimed, being contradicted in that respect by the Daniels; that he and the fireman failed to keep the proper lookout, on the theory that, if they had done so, they could have seen the dog which was killed on the track in time to have prevented the injury by giving stock alarms, which, all agree, were not given. The theory is advanced by learned connsel that, after the engine passed, the dog ran under one of the cars or was struck by a journal box, step, or some part of the car, and was thrown under the train. In fact, it is contended that this is the only reasonable inference that can be drawn from the evidence. The record reflects that the body of the dog was between the rails, and the head outside of the rails when discovered. This physical fact is in conflict with the theory advanced. If the head was severed from the body while running between the wheels onto the track, the head would, in all probability, have been found between the rails and the body on the outside. It cannot be said that the jury arbitrarily discarded the testimony of the engineer by refusing to accept the theory advanced by counsel. We think the appellant has failed to meet the burden of proof cast upon it by the statute, and that the verdict and judgment are supported by substantial evidence.

No error appearing, the judgment is affirmed,

Mr. Justice Hart and Mr. Justice Smith dissent.


author: Hump-hbeys, J.

text:
    Hughes v. El Dorado Union Oil Company.
    Opinion delivered October 8, 1923.
    1. CONTRACTS — construction as a whole. — In determining the intention of the parties a contract must be construed as' a whole, nothing being treated as surplusage if any meaning, reasonable and consistent with the rest, can be given it.
    2. Mines and minerals — construction op oil and gas lease.— An oil and gas lease stipulated that it should remain in force five years; that the consideration of the lease, was not the down payment, but the contract to drill a well upon certain property within 12 months; that if the lessee, by reason of the depression of oil or other unforeseen hindrances, is unable to drill within 12 months, the lessee was not to transfer the leases except to raise money or equipage with ■ which to develop the lease?; that drilling operations should be continuous, and that, should the well be abandoned before a test for 'oil had been made, and no new well commenced within a reasonable time thereafter, the lease shall revert to the lessor. Held that' the intention of the parties was that the lessee should drill' a; test well, within 12 months, unless prevented by depression of oil or other unforeseen hinderances, in which event it might assign any of the leases within a reasonable time after expiration of the Í2 months’ period to raise money or equipage to -drill a test well, provided the operations should be continuous.
    3. .Cancellation op instruments — sufficiency, op complaint. — A complaint which asked that an oil and gas lease be canceled on the, grounds (1) that it was procured through fraud, and (2). that there was a forfeiture on account of the failure of the lessee to drill a test well within 12 months, held not demurrable.
    4. Pleading — negative averment. — Where an oil and gas lease stipulated that’a well should be drilled within 12 months, and that'if the lessee, by reason of the depression of oil or other unforeseen hindrances, was unable to drill within 12 months, he was not to transfer the leases except to raise money or equipages, (equipment) with which to develop the leases, held that a complaint seeking to enforce a forfeiture for failure to drill within 12 months need not allege that there was no depression-, of. oil' or other hindrance which prevented the lessee from drilling. • ,
    Appeal from Ouachita Chancery Court; J. E. Stevens, Chancellor;
    reversed.

      Houston Emery, Smead. & Meek, Gaughan & Sifford and Elbert Godwin, for appellants; H. C. Compton, of counsel.

      1. The consideration having failed, the leases are forfeited. The demurrer admits’ that the drilling of a well was not commenced within twelve months after the date of the leases. A contract must be considered as a • Whole, in construing it, and all its parts must- be considered to determine the meaning of any particular part. 94 Ark. -461; 104 Ark. 475; 93 Ark. 497; '60 Ark. 595; 52 Ark. 30; 96 Ark. 320. Leases prepared by the lessee will be construed most strictly against the lessee, and favorable to the lessor. 99 Fed. 606, 48 L. R. A. 320. Since the'sole consideration for the. execution of the leases was the drilling of a well, the nonperformance of that act destroys the consideration and forfeits leases. 171 U. S. 312; 45 W. Va. 143, 30 S. E. 95; 133 TJ. S. 156; 2 Dru. & W. 274; 1 Gray 414; 26 Ark. 617; 72 Ark. 310; 86 Ark. 251; 103 Ark. 464. ■
    2. It is admitted by the demurrer that appellee failed and refused to drill the well within the twelve months specified in the leases, and for a period of six months after that, when suits were brought; this constituted an abandonment of the appellee’s rights -or claims under the leases. 45 W. Va. 27, 44 L. R. A. 107 ;■ 1 O. J. 10, § 14; 1 R. O. L. 4, § 4; 148 Ark. 301.-
    3. The demurrer also admits the truth of the -allegations of the complaint to the effect that the leases were obtained by misrepresentation' and fraud, but appellee contends that the legal effect of the construction of the leases is a question of law, and that a mistake of law will not avoid the contracts. This case falls within the exception that is as well, recognized as the rule, viz: that where the mistake as to the legal construction of a contract on the part of -one of the -contracting parties was occasioned by the false and fraudulent representations of the other, equity will relieve against it. 6 R. C. L. 625, § 44; 13 Ark. 129; 49 Ark. 24; 69 Ark. 406.
    4. The leases should be held void because unilateral, if they are not forfeited by reason of the failure to drill the well within twelve months. 6 R. C. L. 686-687; 4 Ark. 251; 96 Ark. 184.

      Earve L. Melton and J. W. Warren, for appellees.
    1. We agree that a contract must be construed as a whole, and that every part must be considered to determine the meaning of any particular part as well as of the whole; but to adopt appellant’s construction would do violence to this principle, because it would eliminate clause nine of the leases entirely. In addition to authorities cited by appellants', see 224 Fed. 74; 187 Pac. 235; 6 R. O. L. 847; 96 Ark. 320; 186 S. W. 622; 99 Ark. 112; 104 Ark. 573; 149 S. W. 518. Paragraph nine so modifies the effect of paragraph eight as to make time not of the essence of the contract. Page on Contracts, <§. 1154. There was no allegation that the delay was unreasonable, nor any showing of injury resulting therefrom. 87 Pac. 724; 74 Kan. 581. Huggins v. Daleg, 99 Fed. 606, 48 L. R. A. 320, relied on by appellants, is not controlling in this case. 145 Ark. 566; 225 S. W. 345; 10 R. C. L. 331; 196 Pac. 688; 145 Ark. 310; 225 S. W. 340; 237 IT. S. 101; 245 S. W. 802.
    2. Mere lapse of time without acts showing an intention to abandon does not constitute abandonment. 70 Ark. 525; 69 S. W. 572; Lindsey on Mines, §§ 643, 644; 86 Fed. 90, 95; 1 Thornton, Oil and Gras, 249.
    3. On the question of fraud, appellants failed entirely to bring themselves within any of the exceptions quoted in their brief from 6 R. C. L. p. 265, 'and the contention as to misrepresentation is wholly without merit. Pomeroy, Equity Jurisprudence, 3rd ed. 891.
   Hump-hbeys, J.

Appellants instituted suit, on the 24th day of November, 1922, in Ouachita Chancery Court to cancel several oil and gas leases executed on the 7th day of April, 1921,. by Mrs. Janet Hughes and others in their own right, and by Mrs. Janet Hughes in her representative' capacity, to J. L. Hines, for appellee, El Dorado Union Oil Company. Two grounds are alleged in the substituted, amended complaint in support of the prayer for a cancellation of the leases. The first ground is, that the execution of the leases was procured through fraud by misrepresentations to the effect that, unless J. L. Hines or appellee should drill a test well upon certain lands in said county within twelve months of the date of the leases, same would be forfeited and of no effect. The second ground is that there was a forfeiture of the leases on account of the failure of appellee, to whom the leases were immediately assigned, to drill a test well upon said lands within the twelve-month period provided in section 8 of each lease. Copies of the leases, which are in substance alike, were filed as exhibits to and as parts of the bill asking cancellation thereof.

Appellee filed a demurrer to the substituted, amended bill when perfected, upon the ground that it failed to state facts sufficient to constitute a cause of action when read in connection with the exhibits attached and made a part thereof.

Upon hearing, the court sustained the demurrer to the bill. Appellants stood upon the bill and refused to plead further, whereupon the court dismissed the bill for want of equity. From the decree of dismissal an appeal has been duly prosecuted to this court.

This litigation grew out of the construction the respective parties placed upon the language of the leases. Appellants construed the language of the leases to mean that appellee should drill a test well, in any event, upon the designated lands, within twelve months from the date of the leases, in order to prevent a forfeiture thereof, and if the leases did not have that meaning they were obtained through misrepresentations to that effect, and should be canceled, in either event, on account of a failure of consideration. Appellee construed the language of the contract to mean that it had a reasonable time after the expiration of the year limit provided for in section 8 of the leases to drill a test well upon the designated lands by reason of the depression of oil, as provided for in section 9 of the contract.

The leases are quite lengthy, so, for the sake of brevity, ■ only those parts of the contract necessary to a determination of the differences in construction between the parties will be set out. They are as follows:

“For and in consideration of stock and one dollar, cash in hand paid, receipt of which is hereby acknowledged, and of the covenants and agreements hereinafter contained on the part of the lessee to be paid, kept and performed, has granted, demised, leased and let, and by these presents does grant, demise, lease and let * * * ”

“It is agreed that this lease shall remain in force for a term of five years and as long thereafter as oil and gas, or either of them, is produced from said land by the lessee.”

“8. It is agreed and understood by the parties to this contract that this oil and gas lease is let for the sole and only purpose of developing for oil and gas, and that the consideration to the lessor for same is not the DOWN PAYMENT, but the contract to drill a well upon certain property hereinafter specified, and the lessee binds himself to cause such well to be drilled within twelve months from this date.

“9. And in the event that the lessee or lessees shall have not been able, by reason of the depression of oil, or other unforeseen hindrances, to drill on one of the tracts in the leases below mentioned within the twelve months set out in this contract then it is agreed and understood by the parties that the South Arkansas Oil Company is not to transfer any of "the leases taken under this contract, unless it can be specifically shown that they are making •such transfer for the purpose of raising money or equipage with which to develop the leases so taken.

' “It is further understood by the parties to this contract that drilling operations of the well above referred to shall be continuous, and that, should the well be abandoned before a test for oil has been made, and no new well commenced within a reasonable time thereafter, this lease shall revert hack to the lessor.” ■

The argument is made by appellant that all other -considerations mentioned in the leases yield to the consideration mentioned in section 8, and that the performance thereof is a condition precedent, the nonperformance of which worked a forfeiture of the -contract. The contract does not contain a forfeiture clause, and the time fixed in which to drill a test well, in section 8, was not máde the essence of the contract. The construction placed upon section 8 by appellants would give no force and effect whatever to section 9 of the leases. In ascertaining the intent of parties to -a contract, which is the real purpose of construction, one of the well-recognized canons of construction is that “a contract must be construed as a whole and all of its parts must be -construed to determine the meaning of any particular part as well as of the whole. ’ ’ Earl v. Harris, 99 Ark. 112; Yellow Jacket Mining Co. v. Tegarden, 104 Ark. 573; Arlington Hotel Co. v. Rector, 124 Ark. 90. In the case last cited this court took occasion to say: “In determining the intention of the parties, a contract'is to be construed as a whole, nothing being treated as surplusage' if any meaning, reasonable and consistent with the rest, can be given it.” By applying this canon of construction to the leases in question, some meaning may be attached to each clause and paragraph and all be permitted to stand as a harmonious whole. The clauses and paragraphs are not so conflicting with each other that it is necessary to strike any of them out of the contract in order to ascertain the true intent of the parties. The intent, in substance, of the parties, as gleaned from all the words, clauses, and paragraphs in the leases, is that the lessee should drill a test-well on some of the lands mentioned, within twelve months, unless .prevented by the depression of oil or other unforeseen hindrances, in which event it might assign any of. its leases, within a reasonable time after the expiration of the twelve-month period, to raise money or equipage to drill a test well on the lands leased from appellants within a reasonable time after the expiration of the year, provided the operations in drilling a test well, after the year Emit, should he .continuous. In other words, section 8 was intended to emphasize the fact that the most important consideration was to be the drilling of a test well within twelve months. This construction must be given section 8, else it would be in direct conflict with section 1, which recites other considerations than the consideration mentioned in section 8. Again, section 8 must be read in connection with section 9, because reference is made to section 8 in section 9. The only way to give any effect to section 9, when read in connection with section 8, is to say it modifies or qualifies the consideration specified in section 8, to the extent of allowing any of the leases to be assigned, within a reasonable time, to raise money to drill the contemplated test well within a reasonable time after the expiration of the year period. Having thus reconciled the three sections referred to, it is quite apparent that the last .section, referring to continuous operation, has relation to the drilling of a test well after the expiration of the twelve-month period. There is no conflict between the construction given these sections and the construction placed upon the time limit section in the oil lease in the case of Grooms v. Minton, 158 Ark. 454, because the provisions of the Contract in that case gave five years, without modification or qualification, within which to commence operations. Where a time certain is specified in which to begin operations, a forfeiture could not occur on account of the inactivity of the lessee within that time.

In the leases before us for construction, while it may be said that the paragraphs referred to are interlocking, section 9 is in the nature of an exception to the consideration specified in .section 8, and was thrown in for the benefit of the lessee. For this reason it was not necessary to the sufficiency of appellant’s bill to allege the exception. Depression of oil or other unforeseen hindrances, if any, which prevented the drilling of a test well in the twelve-month period, were matters peculiarly within the knowledge of appellee, and not necessarily within the knowledge of appellants. Certainly appellants should not have been required to plead a negative under such circumstances. Appellants stated a good cause of action under the leases when they alleged a failure on the part of appellee to drill a test well on the lands mentioned, within the twelve-month period. Appellants also stated ia good cause o-f action in alleging that the contract was procured through fraud by misrepresentations of the fact that the contract did not allow any time beyond the twelve-month period for drilling a test well on the lands mentioned. The demurrer therefore should ‘have been overruled. If appellee came within the exception, inserted for his benefit, allowing him to drill a test well after the twelve-month period on account of depression of oil or unforeseen hindrances, he should have pleaded his excuses by answer, it being defensive matter. The' plea to the allegation of fraud should also have been made by answer, and not demurrer.

On account of the errors indicated, the decree dismissing the bill for want of equity is reversed, and the cause remanded with direction to overrule the demurrer.


author: McCulloch, C. J.

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    Bledsoe v. Carpenter.
    Opinion delivered October 15, 1923.
    1. Contracts — partial restraint op trade. — A contract for the sale of a tailoring, cleaning and pressing business in a certain city with an agreement on the seller’s part not to reengage ih a similar business in the same city for a period of five years is valid.
    2. Assignments — contract not to reengage in business. — A contract for the sale of a certain business with an agreement on the part of the seller not to reengage in the same business in the same locality for a limited period is assignable as an incident to a sale of such business.

      3. Equity — jurisdiction -to administer complete relief. — Equity has jurisdiction to restrain breach of a contract not to reengage in a certain business if limited in time and locality, and, to prevent a inultiplicity of actions, that court should grant complete relief by awarding damages already accrued.
    4. Contract not to reengage in business — consideration.—Where B. signed a contract for the sale of a certain business belonging to N., by which N. was obligated not to reengage in the same business in the same locality, for a limited time, the sale of the property and the terms of the sale constituted a sufficient consideration for B. to sign the contract.
    5. Contracts — joint! contract — liability.—Where N. and wife and B., his father-in-law, signed a contract whereby they sold a certain business belonging to N., and jointly obligated-themselves that N. would not reenter the 'business during the time and at the place - specified, there was a right against each of them jointly and severally for any breajch caused! by ÍN^s reentry into the business. ' ‘
    Appeal from 'Clark Chancery Court; James. D. Shaver, Chancellor;
    affirmed.

      W. H. Misell, for appellant.
    The demurrer should, have been sustained. The contract was not assignable. C. So M. Digest, § 475. The complaint did not state a cause of action. 13 Standard Ency. of Procedure, p. 61. The chancery court erred in awarding damages. 24 R. C. L. 89. The finding of the chancellor was against the preponderance of tho evidence. 112 Ark. 126; 91 Ark. 141; 82 Ark. 547.

      Callaway <& Callaway, for appellee.
    A covenant, reasonable as to time and territory, entered into by the seller of a business, not to engage in a similar business, is assignable with a subsequent sale ' of the business and will pass to the subsequent purchaser as an incident of such sale, without being expressly assigned. 47 Iowa 137; 61 N. EL 40; 60 Am. Rep. 317; 106 N. T. 473 ; 60 Am. Rep. 464; 05 N. T. Supp. 1060; 4 A. L. R. 1078. The trial court had jurisdiction. 22 Cyc. 967; 95 Ark. 387. Bledsoe had ample opportunity to inform himself of the obligation he was undertaking, and therefore could not claim fraud. 13 C. J. “Contracts.” In the absence of a consideration, an oral agreement is not binding. 112 Ark. 126.
   McCulloch, C. J.

Tbis is an action instituted in tbe chancery court by appellees against appellant Bledsoe and others to restrain tbe continued breach of a contract and to recover accrued damages for tbe breach thereof.

Tbe facts as disclosed by tbe record are as follows: J. D. Nunn, who was one of tbe defendants below, but who has not appealed from tbe decree, operated a tailoring, cleaning and pressing business in tbe city of Arka-delpbia, and on April 3, 1920, be sold tbe business to F. M. Carpenter, one of tbe appellees. Tbe consideration for tbe sale was tbe payment of the sum of $1,500 in cash. There was a written contract covering the terms of tbe sale, and tbis contract was signed by Nunn and by bis wife, Grace Bledsoe Nunn, and by the appellant, W. K. Bledsoe, who is bis fatber-in-law. Tbe contract states tbe consideration as above mentioned, and contains a recital that “the undersigned have tbis day sold and delivered to F. M. Carpenter tbe business now operated in the name of J. D. Nunn & Co.” Tbe contract concludes as follows: “And in consideration of tbe said premises it is further agreed by tbe undersigned that J. D. Nunn shall not, directly or indirectly, reengage in Arkadelphia in tbe business of tailor, batter, or a similar business, for a period of five years from tbis date. In witness whereof, tbis bill of sale and agreement is signed by .the vendors of tbis tbe 3rd day of May, 1920.”

Carpenter sold tbe business to appellee Arnold, and both of them (Carpenter and Arnold) joined as plaintiffs in tbis action. Nunn reentered tbe business mentioned a short time after tbe execution of the contract, and it is alleged that appellees have been damaged in the sum of $1,000 on account thereof. Tbe prayer of tbe complaint is for the recovery of damages from all tbe obligors in tbe 'contract, and that defendant Nunn be restrained from further breaches of tbe contract.

The case was heard by the court on oral testimony, and there was a decree against all three of the defendants for the recovery of damages in the sum of $100, and a decree against Nunn restraining him from continuing in business in violation of the contract. Appellant Bledsoe is the only one who appealed, and his appeal is only from that part of the decree which is for the recovery of damages against him. The appellees have obtained a cross-appeal.

Contracts such as that involved in the present controversy have been considered by this court in several cases, and have been upheld where their operation has been limited to only a partial restraint of trade for a limited time and locality. Bloom v. Home Insurance Agency, 91 Ark. 367; Hampton v. Caldwell, 95 Ark. 387; Edgar Lumber Co. v. Cornie Stave Co., 95 Ark. 449; Shapard v. Lesser, 127 Ark. 590; Wahenight v. Spear & Rodgers, 147 Ark. 342.

It is not contended that this contract is invalid for any reason, and the question of its validity falls squarely within our decisions on this subject. It is, however, contended, in the first place, that the contract is not assignable, and that neither of the appellees are in a situation to maintain this suit; that Carpenter, the original obligee in the contract, cannot sue for the reason that his sale of the business disconnected him from any benefits under the contract, and that appellee Arnold cannot sue for the reason that the contract was not assignable. These contentions are not sound. It has been shown by oral testimony that, while Carpenter sold this property to his co-appellee,' Arnold, the consideration therefor has not been paid in full, and that he retained title to the tangible property sold as security for the purchase price. These facts give him’ an interest in the enforcement of the contract. Be that as it may, however, it seems to be settled bv the great weight of authority that such a contract is assignable as an incident to the sale of the business, and many of the authorities — what appears to be the weight — go to the extent of holding that the contract passes with the sale of the business, as an incident thereto, even without a formal assignment. This is upon the theory that the contract is enforceable only as an incident to and a part of the contract of sale, and passes to the purchaser upon resale, without a formal assignment. The authorities on this subject are reviewed in the note to the case of Sickles v. Lauman (Iowa), 4 A. L. R. 1073.

It is unnecessary in the present case to determine which of the appellees has the right of action, for both of them have joined in the effort to enforce the contract and recover damages for its breach.

It is next contended that appellees could not, at the same time, maintain an action for damages and to restrain the breach of the contract. The suit is to recover damages already accrued and to restrain future breaches, and we are of the opinion that an action is maintainable to secure relief on both grounds. The injured party is not, under those circumstances, put to an election, for he has two distinct, mature rights of action. "We are also of the opinion that both may be prosecuted in a court of equity, where jurisdiction is conferred for the purpose of granting relief by injunction, and, to prevent a multiplicity of actions, that court should grant complete relief by awarding damages.

The contract was not without consideration, even as to appellant Bledsoe, for the sale of the property and the terms of the sale were sufficient to support the whole contract as to all of the parties. It was not essential that appellant Bledsoe should have been the' beneficiary of any of the consideration, though it was proved in this case that he did receive a benefit by reason of the fact that the consideration, or part of it, was used in discharging a promissory note executed bv Nunn to a certain banking institution, and that appellant Bledsoe was surety or indorser on the note.

It is also contended that the contract was broken solely by the act of Nunn alone reentering the business, and that appellant is not liable in damages for the breach committed by Nunn. The solution of this question turns upon a construction of the languagé of the contract in order to determine its nature, whether joint or several.. If it was a joint contract, each of the obligors is liable for damage caused by a breach committed by either of the three, but, on the other hand, if the contract was several in its nature, then each obligor is responsible only for his own breach. “If two or more persons constitute one party to a contract,” says Professor Page, “the question as to the nature of their rights and liabilities presents itself. If two or more persons are prom-isors in a contract, their liability may be joint, or several, or joint and several. If their liability is joint, each of the promisors is liable, and may be held for the entire liability arising under the contract. A several contract is one in which each of the promisors undertakes only a limited amount of the entire liability, or in which each severally undertakes the entire liability. A joint and several contract with reference to the promisors is one which the promisee, at his election, may treat either as the joint contract of all the promisors or as the several contract of each promisor.” 4 Page on -Contracts, § 2066.

In the next section the author says: “Whether the liability of the promisors is joint, or joint and several, depends upon the intention of the parties as ascertained from the contract by the ordinary rules of construction. In the absence of statute, the liability of two or more promisors upon the same contract is a joint liability, if the rest of the contract does not show that a different liability was intended.”

Again, in § 2071 of the same volume, the author states the rule to be that all of the joint promisors are liable upon a joint contract, no matter who commits the breach.

A consideration of this contract leads inevitably to the conclusion that the effect of the language is to constitute a joint contract, and that there is no language indicating that the contract was intended to he several. In the first place, it states that the undersigned, which includes appellant, “have this day sold and delivered to F. M. Carpenter the business,” and the concluding paragraph unmistakably expresses a joint obligation on the part of all three of the parties that one of them (Nunn) should not, directly or indirectly, reengage in 'business during the time and at the place specified. In other words, all three of the obligors undertook that one of them should not reenter business, and it constituted an engagement on the part of all of them to answer jointly and severally for any breach committed by the individual named. Each of the obligors undertook to control the action of Nunn, or to respond in damages for any injury caused by his breach.

Our conclusion is therefore that there was a right of action against appellant for damages caused by the reentry of Nunn into the business. There was evidence to sustain the finding of the chancellor as to the amount of damages sustained. The evidence was conflicting, and to some extent speculative, as to the amount of business appellees lost by reason of the reentry of Nunn into the business. This was, necessarily, a matter of conjecture, and we are not able to say that the finding of the chancellor is against the preponderance of the evidence. So the decree on both appeals will be affirmed.

It is so ordered.


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    Mantle Lamp Company v. Read.
    Opinion delivered October 15, 1923.
    1. Contracts — duty op court to construe writing. — Where a contract of sale is evidenced by writings, it is the duty of the court to construe the writings and to declare the terms of the contract to the jury.
    2. New trial — duty to grant.- — The trial court, in overruling plaintiff’s motion for new trial, announced that it was the opinion of the court that there was no question of fact to submit to the jury, and that the plaintiff was entitled to a verdict. Held error in refusing a new trial.
    Appeal from Pike Circuit Court; G. E. Johnson, special judge;
    reversed.

      W. T. Kidd, for appellant.
    The court erred in refusing to give instruction No. 4, to the effect that if it was the intention of the parties that the title to the lamps was to pass for an agreed price, then it would be a sale. As construing’ what a sale is, see 172. Fed. 940; ,68 Ark. 196; 90 Ark. 131; 134 Fed. 804; 95 S. W. 696. It was error to give defendant’s instruction No 1 submitting to the jury the question of whether Read was the agent of appellant. The transaction was based upon letters and a signed contract, and the court should have construed the contract. 132 Ark. 197; 89 Ark. 239; 97 Ark. 613; 11 Ark. 380; 95 Ark. 421; 77 Ark. 261. For the same reason instructions Nos. 3 and 5 were erroneous. The trial court, in passing on the motion for new trial, stated that.there was no question of fact to submit to the jury, and that plaintiff was entitled to a verdict. Having so found, it was his duty to set aside the verdict. 130 Ark. 374; 129 Ark. 448; 132 Ark. 45; 133 Ark. 166; 144 Ark. 227;'130 Ark. 387; 147 Ark. 468.

      Featherstone & Feather stone and Pmnix & Piimix, for appellees.
    The disputed question at issue, which was whether the relation of principal and 'agent existed, was one of fact and was properly submitted to the jury. 104 Ark. 267; 80 Ark. 368; 101 Ark. 376; 105 Ark. 213; 98 Ark. 334; 96 Ark. 370 ; 63 Ark. 94; 117 Ark. 665; 97 Ark. 438; 70 Conn. 76; 134 la. 12; 18 Pa. St. 283; 21 R. C. L. 820. Judges cannot charge juries with regard to matters of fact, but shall declare the law. Const, art. 7, § 23; 107 Ark. 158. It is error to direct -a verdict where there is a substantial conflict in the testimony. 38 Cyc. 1540; 96 Ark. 368; 39 Ark. 491; 37 Ark. 164;
      Id. 230; Id. 580; 35 Ark. 146; 36 Ark. 451; 120 Ark. 206; 115 Ark. 166; 23 Ark. 115; 99 Ark. 490; 85 Ark. 390.
   McCulloch, C. J.

This action was instituted by the Mantle Lamp Company, a corporation of Illinois (hereafter called appellant), against 0. M. Read and O. A. Featherstone. The appellant alleged that it sold to Read certain lamps for the price of $158.25, for which Read had not paid; that Featherstone guaranteed Read’s account with the appellant in the sum of $150, by letter of credit, which reads as follows:

“In consideration of your selling goods on a credit to G. M. Read, Murfreesboro, Arkansas, I hereby guarantee his account with you, and agree to pay you on demand for any and all purchases so made and which are not paid for by him in accordance with your terms. This guaranty to cover any and all shipments made after above date, but my liability is not to exceed one hundred fifty dollars. ’ ’

The appellant prayed judgment against Read and Featherstone for the amount of the account.

Read, in his answer, denied that he purchased any lamps from the appellant, and set up that the lamps which he received from the appellant were received by him as appellant’s agent; that appellant had appointed him its agent to canvass certain territory for the sale of lamps in Pike 'County, Arkansas, and that the lamps in controversy were shipped by appellant to him and received by him as appellant’s agent, for sale by him in the territory assigned to him by the appellant; that, after canvassing the territory as the agent of appellant, lie was unable to sell the lamps, and promptly notified the appellant of that fact, and returned the lamps to appellant. He denied therefore that he was indebted to the appellant in any sum.

Featherstone adopted the answer of Read.

The testimony for appellant tended to prove that Read ordered the lamps on an order blank as follows:

“The Mantle Lamp Company of America, Chicago, Ill.

“Order Blank.

“No Goods Shipped On Consignment.

“Order No. 313443. Entered, checked and hilled 1-21-21, date 1-8-21. Name, G. M. Read, Murfreesboro, Pike County, Arkansas. Ship by American Express.

“Credit: Credit orders will be filled only for those who send us a ‘letter credit’ properly filled out, or who are satisfactorily rated merchants.

How Style Extended Full

Many No. Price each Amount

5 900 Aladdin Table Lamps $8.25 41.25

12 901 ” ” ” 9.75 117.00

8 900 Extra free lamps -

Total amount $158.25

“G. M. Read.

“Approved as to credit, T. G. Barker.”

This order and the letter of credit set out above appellant introduced in evidence, and witnesses for the appellant testified that the amount of the account was due and unpaid; that Read was not the agent of the appellant, but purchased the goods outright on an out-and-out sale and on credit extended to him by virtue of the letter of credit; that the appellant had no agent, but sold its lamps to Read and appointed him distributor and assigned him certain territory in which he could sell the lamps. Such was the effect of the testimony of appellant's sales manager and its mailing clerk. The testimony of appellant’s shipping' clerk was to the effect that he packed and shipped the lamps by express, as per order, to Read at Murfreesboro, Pike 'County, Arkansas, on the 11th day of January, 1921, and that the appellant did not have any control over the lamps after the same were delivered to the common carrier.

There was testimony to the effect that the lamps were worth the sum of $158.25, and that the account for same had not been paid by the appellees.

On cross-examination of appellant’s filing and mailing clerk and of its sales manager, various letters and documents showing the correspondence between the appellant and Read were identified, numbered, and brought into the record, which it would unnecessarily incumber the record to set out in detail. Reference will be made to them as we proceed.

Featherstone was called by the appellant as a witness, and admitted that he wrote the letter of credit which was introduced in evidence, and that he received notice from the appellant that it had accepted same, and that appellant had also notified him that Read had refused the payment of the account on which this action is based.

Read testified that on December 7, 1920, he received a certain letter from the appellant, which, with various other documents, over the objection of appellant, he was permitted to introduce. This letter of December 7,1920, and the various other letters and documents introduced by Read are voluminous, and, in the conclusion of the majority of the court, it becomes unnecessary to set them out in detail. Reference will also be made to these as we proceed.

Read testified to the effect that he ordered the lamps in controversy because of the correspondence that he had with the appellant. He ordered the first lamp as a test lamp, and then he ordered the other lamps. They were shipped to him, and he was unable to sell a single lamp. He studied the literature sent him by the appellant and undertook to comply with it, and went about trying to sell the lamps, and, finding that he could not do so, he returned them to the appellant, and it declined to take them back. He did not ship the lamps back because he was dissatisfied with them, but because he could find no sale for them. He sent them back on his own motion and without any request from the appellant.

The appellant asked the court to instruct the jury to return a verdict in its favor, which instruction the court refused. The court instructed the- jury, at the instance of the appellant, that, if the preponderance of the evidence showed that Bead placed his order with the appellant for the purchase of the lamps, and that appellant filled said order and shipped the lamps to Bead, their verdict should he for the appellant. The court also instructed the jury, at the instance of the appellant, that, notwithstanding they might find from the evidence that Bead was the agent of appellant, yet, if- they further found that Bead purchased the lamps at a stipulated price and agreed to pay for the lamps, their verdict should he for the appellant.

At the instance of the appellees the court, in effect, instructed the jury that the issue as to whether the relation of principal and agent existed between Bead and the appellant was an issue of fact for them to. detennine from all the evidence in the case; that, if the relation of principal and agent existed between them, as shown by all the facts in evidence, the jury should find such to he the fact, whether the parties so designated it or not; that if they believed from the evidence that Bead was a sales agent and not a purchaser of the appellant, then their verdict should he for Bead. In other words, the court, 'by its instructions, submitted the issue to the jury to determine as a question of fact whether the relation between appellant and Bead concerning the lamps in controversy was that of principal and agent or vendor and purchaser, and if the jury found that the relation was that of vendor and purchaser, they should find' for the appellant: but if that of principal and agent, they should find for the appellees.

The verdict and judgment were for the appellees, and the case is here on appeal.

After a consideration of all the testimony in the record, a majority of the court has reached the conclusion that the court should have declared as a matter of law that the relation between the appellant, and Bead was that of vendor and purchaser, dnd not that of principal and agent; that, when all the writings which were introduced in evidence are considered as evidencing the contract between the parties, they constitute the relation of vendor and purchaser between the appellant and Read. It was the duty of the court to so construe these writings and to declare the terms of the contract to the jury. McDonough v. Williams, 77 Ark. 261; Mann v. Urquhart, 89 Ark. 239; Emerson v. Stevens Gro. Co., 95 Ark. 421; Porter v. Gossett, 112 Ark. 380. The letter of proposal written by appellant’s manager, upon which the order of Read for the goods was based, clearly states that Read was to become the purchaser of the goods, and-this created the relation of vendor and purchaser.

The trial court, in overruling the motion for a new trial, announced that it “was the opinion of the court that there was no question of fact to submit to the jury, and that the plaintiff was entitled to a verdict.” The court, notwithstanding this finding, overruled appellant’s motion for a new trial, to which ruling the appellant duly excepted. Under the above finding of the court it was its duty to grant the appellant a new trial. Pettit v. Anderson, 147 Ark. 468, and cases there cited.

For the errors indicated the judgment is reversed, and, as the cause appears to have been fully developed, judgment will be entered here against appellee Read for the full amount of the debt and against appellee Feath-erstone to the extent of $150 of the above amount.

Wood and Humphreys, JJ., dissent on the ground that the correspondence brings the case within the doctrine of Clark v. J. B. Watkins Medical Co., 115 Ark. 166, and that it was an issue for the jury to determine whether or not the relation between anpellant and Read was that of principal and agent or that of vendor and purchaser; that this issue was properly submitted, and the judgment is correct and should be affirmed.


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    St. Louis-San Francisco Railway Co. v. Blevins.
    Opinion delivered October 15, 1923.
    1. MASTER AND SERVANT — FEDERAL EMPLOYERS’ LIABILITY ACT — EVIDENCE. — In an action under the Federal Employers’ Liability Act, evidence tending to prove that plaintiff received injuries while unloading piles írom a flat-car caused by the negligence of fellow servants in failing to steady the piling and in allowing same to roll or skid, crushing plaintiff’s foot, held sufficient to go to the jury on the issue of defendant’s negligence.
    2. Master and servant — abstract instruction — waiver.—Where a complaint contained several charges of negligence, some of which were not sustained by evidence, it was error to submit all of the charges to the jury, but defendant is in no position to complain if it asked instructions submitting each of such charges to the jury.
    S. Master and servant — federal act — assumed risk. — While the Federal Employers’ Liability Act abrogated the common-law rule known as the fellow-servant doctrine by placing the negligence of a co-employee upon the same basis as the negligence of the master, the act did not abolish the doctrine of assumed risk except in cases of violation by a carrier of statutes enacted for the safety of employees where such violation contributed to the injury or death of an employee.
    4. Master and servant — assumed risk. — A servant, under the Federal act, is not deemed to have assumed the risk of negligence of a master' or a fellow-servant unless the consequent danger is so obvious that an ordinarily careful person in his situation would have observed the one and appreciated the other.
    5. Master and servant — assumed risk — instruction.—An instruction that if a servant engaged in interstate commerce “was injured while in the performance of his regular duties, and * * * his injury was caused or contributed to by the negligence of his fellow employees, you are instructed that he did not assume the risk arising out of the negligence of his fellow-employees,” held erroneous in taking from the jury the question of assumed risk.
    Appeal from Crawford Circuit Court; James Cochran, Judge;
    reversed.

      W. F. Evans and Warner, Hardin & Warner, for appellant.

      It is an elementary rule that the master is not required to make the servant’s place of work and conditions surrounding- him absolutely safe. 1 Roberts, Fed. liab. § 528, p. 914; 60 L. ed. 384; 79 Ark. 437; 124 Ark. 298. The testimony was wholly insufficient to establish any negligence of the defendant, and the court erred in not directing a verdict for the defendant'. 116 Ark. 56. Surmise and conjecture cannot supersede proof. 3 Bailey on Personal Injury, 2136; 79 Ark. 437; 109 Ark. 206. Even if defendant was negligent, this was not the proximate cause of plaintiff’s injury, and there was no actionable negligence established. 1 Roberts, Fed. Liab. § 53iS, p. 944; 53 L. ed. 671; 45 L. ed. 361; 233 Fed. 31; 86 Ark. 289; 91 Ark. 260. The rule is well established that a servant assumes the risks caused by the employers’ negligence which are -obvious and fully known -and appreciated by him. 1 Roberts, Fed. Liab. § 558; p. 987 ; 58 L. ed. 1062; 60 L. ed. 1062; 60 L. ed. 1016; 149 Ark. 77; 135 Ark. 563; 118 Ark. 304; 97 Ark. 486; 82 Ark. 534; 62 L. ed. 385; 135 Ark. 480; 195 Fed. 725. The court erred in giving instruction No. 1 requested by plaintiff. It was calculated to confuse and mislead the jury, and was highly prejudicial to the defendant. 135 Ark. 330; 74 Ark. 19; 87 Ark. 471; 71 Ark. 518; 69 Ark. 380; 152 Ark. 90. Instruction No. 3 should not have been given. It does not correctly state the law, and is inherently erroneous. 62 L. ed. 385; 58 L. ed. 1062; 60 L. ed. 1016; 61 L. ed. 1162; 135 Ark. 480; 96 Ark. 387; 135 Ark. 330.

      George G. Stocka/rd, for appellee.
   McCulloch, C. J.

The plaintiff, N. F. Blevins, received personal injuries while working for the defendant railway company, unloading wooden piling from a flatcar, and he instituted this action to recover compensation for his injuries, alleging that the same resulted from negligence of the defendant and its servants, who were fellow-servants of the plaintiff at the time he was injured.

It is alleged in the complaint, and the proof tends to show, that plaintiff’s injuries were received while he was engaged in a class of work for defendant which constituted interstate commerce, and the action was instituted, and recovery was asked, under the Federal statute known as the Employers’ Liability Act. Damages were laid in the sum of $3,000, and the trial jury returned a verdict in favor of the plaintiff, assessing his damages at $1,500, and an appeal has been prosecuted by the defendant.

The plaintiff was employed by the defendant to work in the bridge department, and, as before stated, the- injuries were received 'by plaintiff while he and his fellow-servants, all under the direction of a foreman, were engaged in unloading piling from a car. The piling was to be used in repairing a bridge near the point where the car had been placed. It was a flat-car, and there were twenty-eight pilings loaded thereon lengthwise, of an average weight of about 2,000 pounds each. They were held in place on the car by wooden upright stakes set in sockets on each side of the car, there being eight of the stakes on each side.

One of the methods of unloading piling was for the men to remove the stakes and then roll the pilings off of the car one at a time. The men engaged in rolling the piling generally used a canthook. 'Some of the men worked on top of the pile, and some worked on the ground. This was one of the regular methods used in unloading piling from cars, but there were other methods sometimes used. Another method was to use what is called the “driver and hooks,” whereby a line is attached to a piling, and it is pulled from the ear by steam power. Another method is to put a rope around the end of the piling and fasten the other to the fail or tie, and the oar is pulled away by the locomotive, thus dropping the piling on the track. According to the testimony in the case, all of these methods were at times used, and- all of them were, to a certain extent, in regular use.

On the occasion when the plaintiff was injured he, together with three other men — two of them with cant-hooks in their hands — were on top of the car of piling, and, preparatory to unloading the car, were removing the stakes. There were two men standing on the ground, pulling at one of the stakes, and, being unable to remove it, plaintiff walked across the car, over the top of the piling, and took hold of the stake to assist the men in removing it. As he lifted the stake up, two of the pilings on which he was standing rolled together and caught his foot. The two men standing on the ground loosened their hold on the stake, and plaintiff did the same, and the stake dropped back into the socket. Two of the men on top of the car had, as before stated, oanthooks, and the testimony tended to show that it was the duty of those men to protect any workman walking across the piling 'by steadying the pilings so as to prevent them from rolling or skidding. The two men on top of the car did nothing on this occasion to steady the piling. There is no proof as to the cause of. the skidding or rolling of the piling, except the lifting of the stake, or that the pilings rolled because of the fact that they were lying loose.

Negligence of the defendant and its servants is alleged in several respects. It is alleged, in the first place, that there was negligence in insecurely and improperly loading the timbers on the flat-car so that they would roll or skid; that the car was stationed on a slanting track, which caused it to lean to one side, and that the foreman of the crew was negligent in directing the plaintiff to walk across the load of piling without first requiring other members of the crew to protect bim by holding the timbers steady; also that the timbers were slick 'and insecure, and in that respect it was negligence on the part of the foreman' in directing the plaintiff to walk across the piling in that condition without having the men to steady them; that there was negligence on the part of the defendant in failing to “shim the bolster or' gear of said car which rests on and over the truck center and truck springs, ’ ’ and that tki's gave tlie car a rocking motion when any weight was applied to either side, and that it was dangerous to cross the oar when it was in that condition. Finally, it is charged that there was negligence on the part of plaintiff’s fellow-servants (the two men with canthooks on top of the car) in failing to steady the timbers while he was walking across them, in order to prevent them from rolling, and in failing to steady them while he was attempting to remove the stake from the socket on the side of the car.

In the first place, it is contended that the judgment should be reversed .for the reason that the evidence is not legally sufficient to sustain the charge of negligence in any of the respects set forth in the complaint. We are clearly of the opinion that the evidence was not sufficient to sustain any of the charges of negligence, except the last-mentioned one in regard to the failure of the two fellow-servants to exercise care to steady the piling while plaintiff was walking across the top of the pile. There was no negligence on the part of the foreman in directine: appellant to work in an unsafe place, for the reason that, according to the undisputed testimony, the foreman gave no specific directions. This method of unloading piling was shown by the plaintiff’s own testimony to be the regular way of doing the work, and at the time of his injuries he was on top of the car and had walked across the top, pursuant to his regular duties, and not in response to any specific directions of the foreman. In other words, there was no assurance of safety, and the plaintiff, by taking service in that department, assumed the ordinary hazards of the work done in that manner. He did not assume the extraordinary risk caused by negligence of the employer or the negligence of his fellow-servants, but he did assume the ordinary hazards of working under these circumstances. This method o'f unloading being one of the regular methods adopted by the master while the plaintiff was in service, he is presumed to have contracted with reference to that kind of work, and therefore he assumed all the ordinary risks.

It is not shown that the piling rolled or skidded because of the car being placed on an uneven surface; there was no proof to sustain that allegation of negligence, nor is there any proof that there was negligence in failing to “shim the bolster or gear” of the car.

There was, we think, sufficient evidence to warrant the submission to the jury of the issue as to the negligence of plaintiff’s fellow-servants in failing to hold the piling steady while he was walking across, and while he was attempting to remove one of the standards, or stakes, which held the pilings on the ear. There is proof that two of the fellow-servants were on top of the car with canthooks in their hands, and that it is customary for men in that position to protect a fellow-servant standing on top of the timbers, and that it was their duty to do so, that they failed to discharge this duty, thus permitting two of the timbers to roll or skid, crushing plaintiff’s foot.

It is true that there was no direct testimony to the effect that the pilings were noticeably in an insecure situation, or were about to roll, but the evidence adduced, warranted an inference of insecurity of the situation, and the jury might have found that it was the custom and duty of the men with the canthooks to steady the pilings on which their fellow-workman was standing. It is undisputed that neither of the two men with cant-hooks in their hands, nor any one else engaged in the work, made any attempt to steady the pilings, and that, while plaintiff was standing on two of them, when he was attempting to raise the stake from the socket, they rolled together and crushed his foot.

It is argued that, there being a large number of pilings loaded on the car, it was impossible for two men to hold them all in place, but we cannot declare, as a matter of undisputed fact, that such is the case. The plaintiff states in his testimony that the men might have held the pilings steady by using the canthooks, and this may be true — at least the jury might have found it to be so. The men could not have placed their canthooks on all of the different pieces of timber at the same time, but they could have steadied some of them in the mass, which might have served to prevent any of them from rolling.

The first instruction given by the court at the instance of the plaintiff stated, in substance, that, if plaintiff’s injuries were caused by negligence of defendant’s servants or employees, “in one or more of the particulars named in the complaint,” there might be a recovery, etc. This language constituted a submission of all of the charges of negligence set forth in the complaint, and it was error to do this, for, as we have already seen, there was no testimony to sustain any of the charges except the one in regard to the failure of the two fellow-servants to protect the plaintiff by steadying the timbers. Defendant is not, however, in a position to complain, for it asked separate instructions, which were given, submitting these issues to the jury, and, having acquiesced in the improper submission of the issues, it cannot now complain.

"We conclude, however, that the court erred in giving the third instruction requested by plaintiff on the subject of assumed risk, which instruction reads as follows:

“If you find that plaintiff was injured while in the performance of his regular duties, and you further find that his injury was caused or contributed, to by the negligence of his fellow employees, you are instructed that he did not assume the risk arising out of the negligence of his fellow employees.”

This instruction, it will be observed, takes away the defense of assumed risk if it be found that “plaintiff was injured while in the performance of his regular duties,” and that the injury was caused by the negligence of his fellow employees. This is not the law as declared in the statute. Under the Employers’ Liability Act, the defense of assumed risk is not abrogated except “in any ease where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee.” ,

In the present case the charge of negligence is based, not upon the violation of any statute enacted for the safety of the employees, but it is based upon the principles of the common law in regard to negligence, and in this respect the defense of assumed risk is unaffected by the terms of the statute. Seaboard Air Line Ry. v. Horton, 233 U. S. 492. The statute does, however, abrogate the fellow-servants rule under the common law, but there may be an assumption of risk, even where the injury is caused by the negligence of a fellow-servant, where the plaintiff was aware of the negligence and appreciated the danger. This has been expressly decided by the Supreme Court of the United States in the case of Chesapeake & Ohio Ry. Co. v. De Atley, 241 U. S. 310, where the court said:

“The act of Congress, by making the carrier liable for an employee’s injury ‘resulting in whole or in part from the negligence of any of the officers, agents or employees ’ of the carrier, abrogated the common-law rule known as the fellow-servant doctrine by placing the negligence of a co-employee upon the same basis as the negligence of the employer. At the same time, in saving the defense of assumption of risk in cases other than those where the violation by the carrier of a statute enacted for the safety of employees may contribute to the injury or death of an employee, * * * the act placed a co-employee’s negligence, where it is the ground of the action, in the same relation as the employer’s own negligence would stand to the question whether a plaintiff is to be deemed to have assumed the risk. On the facts of the case before us, therefore, plaintiff having voluntarily entered into an employment' that required him, on proper occasion, to board a moving train, he assumed the risk of injury normally incident to that operation, other than such as might arise from the failure of the locomotive engineer to operate the train with due care to maintain a moderate rate of speed in order to enable plaintiff to board it without undue peril to himself. But plaintiff had the right to presume that the engineer would exercise reasonable care for his safety, and cannot he held to have-assumed the risk attributable to the operation of the train at an unusually high and dangerous rate of speed, until made aware of the danger, unless the speed and the consequent danger were so obvious that m ordinarily careful person in Ms situation would have observed the one and appreciated the other.”

. The same rule was recognized in the later case of Reed v. Director General of Railroads, 258 U. S. 92. It was also recognized in the case of Hartwick v. Chicago & A. R. Co., 286 Fed. 672, decided by the Court of Appeals of the Seventh Circuit.

This interpretation of the Federal statute places the question of assumed risk with reference to the negligence of plaintiff’s fellow-servants upon the same basis as negligence of the master himself, for, in either case, the servant is not deemed to have assumed the risk of the negligence of either the master or the fellow-servant, unless the plaintiff is aware of the negligence and appreciates the danger, or, in the language of the Supreme Court, “the consequent danger was so obvious that an ordinarily careful person in his situation would have observed the one and appreciated the other.”

It follows from this that the judgment must be reversed, because the jury might have found from the testimony that plaintiff was aware of the fact that Ms fellow servants who were standing on the ear with canthooks in their hands were taking no steps toward protecting him, and that he appreciated the danger but proceeded with his work notwithstanding. It is true he states that, after he had passed along over the top of the pile of timbers and stepped over to the stake, while the two men on the ground were attempting to remove it, he did not notice any further what his fellow-servants on the car were doing, whether they were making any effort to protect him or not, but these men were in full sight of the plaintiff, and the jury might have found from the evi-deuce tliat lie knew that they were doing nothing to protect him. The jury might also have found, from plaintiff’s long experience in this work, as shown by the evidence, that- he was fully aware of the insecurity and danger of standing upon or walking across a load of piling. The question of assumed risk should therefore have been submitted to the jury, and this instruction was erroneous in entirely taking the consideration of the question away from the jury.

There are other assignments of error with respect to the court’s charge to the jury, but it is unnecessary to discuss them, as we have sufficiently indicated the sole issue to be submitted on another trial and the law with-reference thereto.

For the error indicated the judgment is reversed, and the cause is remanded for a new trial.


text:
    Summers v. Road Improvement District No. 16.
    Opinion delivered October 15, 1923.
    1. Statutes — construction as a whole. — In construing a statute regard must be had to all of its provisions, so that they may be harmonized with each other and .effect be given to each if that can 'be done consistently with the language used, and effect should be given to the obvious intention of the lawmakers although such construction may seem contrary to the letter of the statute.
    2. Highways — conditional repeal of act. — Though § 1 of Acts 1923, No. 375, purports to repeal act No. 182 of the special session of February, 1920, creating Road Improvement District No. 16 of Woodruff County, yet, in construing § 3 of same act, it is apparent that the Legislature intended to repeal the prior act unless a vote of the electors and landowners favored a continuation of the district created by it.
    3. Constitutional law — delegation of legislative authority.— While the Legislature cannot delegate authority to enact a law, it may enact a law and leave its operation to depend upon a contingency or condition, such as a favorable vote of electors or landowners.

      Appeal from Woodruff Chancery Court, Northern District; A. L. Hutchins, Chancellor;
    affirmed.

      J. F. Summers, for appellant.
    Sections 1 and 2 of the Act 357 repealed the road improvement district. The court erred in sustaining the demurrer.

      Roy D. Campbell, Harry Woods and Coleman, Robinson & House, for appellee.
    The entire statute should be considered, and so construed as to give effect to all of its provisions, if possible. 3 Ark. 285 ; 48 Ark. 305, 308; 59 Ark. 237, 253; 27 S. W. 2; 76 Ark. 303, 308; 89 S. W. 42'; 84 Ark. 409; 106 S. W. 199; 106 Ark. 371; 154 S. W. 181; 91 Ark. 5; 120 S. W. 154; 28 Ark. 200; 35 Ark. 56. The authority of the Legislature to pass an act to become effective, upon certain conditions is recognized by this court. 223 S. W. (Ark.) 367; 72 Ark. 195; 79 .S. W. 795; 120 Ark. 277;. 179 S. W. 486; 248 S. W. 2.
   McCulloch, C. J.

Appellee road improvement district was created by special act No. 183 of the extraordinary session of the General Assembly of February, 1920, and at the regular session of the General Assembly of 1923 a statute relating to the district was enacted, Acts 1923, p. 815. No. 375, the first two sections reading as follows:

“Section 1. That act No. 183 of the special session of the General Assembly of Arkansas, in February, 1920, approved February 18,1920, and which creates Road Improvement District No. 16 of Woodruff County, Arkansas, and which is entitled, £ An'act to embrace Road Improvement District No. 2 of the Northern District of Woodruff County, Arkansas, and to create Road Improvement District No. 16 of Woodruff County, and for other purposes,’ be and the same is hereby repealed.

“Section 2. Jurisdiction is hereby conferred on the Woodruff Chancery Court for the Northern District of Woodruff. County, Arkansas, to wind up the affairs of said district, and to that end all persons having claims against the district are required to present same to said court within three months after the passage of this act. Said court shall adjudicate said claims, and shall appoint a receiver to collect, upon the assessment of benefits heretofore made, a sum sufficient to pay all 'claims found to be justly due. ’ ’

The third section of the statute provides for an election to he held by the electors and owners of property in the district, to “cast their votes either for or against the district. ’ ’ This section specifies a certain date for the election, the method of conducting the election, and for canvassing and certifying the returns, etc., and it concludes with the following provision:

“If the majority of the voters vote for Road District 16, then this act shall become null and void; if a majority vote against Road District 16, then this act to he in full force and effect, and all laws and parts of laws in conflict herewith he and the same are hereby- repealed. The county clerk shall certify the returns of the- election to the Secretary of State, which certificate shall he considered final. If any person without the- qualifications above set out vote or attempt to vote in the election hereinbefore provided, he shall he guilty of violation of law, and subject to the penalties provided under the provisions for a similar offense under the general election laws of the State of Arkansas. ’ ’

The fourth and last section contains the emergency clause and declares the statute to be in immediate effect.

Appellant is the owner of real property in the district, and he sued in chancery to restrain further proceedings under the original statute, claiming that the statute has been unconditionally repealed by the last statute. He alleges in his complaint that the election was held in accordance with the. provisions of the last statute, which resulted in -a majority in favor of the district, but he asserts that the provision for the election is void as an attempt of the Legislature to delegate legislative authority, and that the repealing clause of the statute is effective.

Counsel for appellee rely on the familiar principle, often announced by this court, that, in construing a statute, regard must he had to all of its provisions, so that they may he harmonized with each other and effect given to each, if that can be done consistently with the language used, and to give effect to the obvious intention of the lawmakers, although such construction may seem contrary to the letter of the statute. State v. Smith, 40 Ark. 431; Doles v. Hilton, 48 Ark. 305; Railway Co. v. B’Shears, 59 Ark. 237; Hartford Fire Ins. Co. v. State, 76 Ark. 303; Chicago, R. I. & P. Ry. Co. v. State, 84 Ark. 409; State v. Jones, 91 Ark. 5; State v. Trulock, 109 Ark. 556. They contend that, applying this rule of construction, the lawmakers did not intend an absolute repeal of the former statute, but intended merely a suspension of further operations under that statute, unless the vote at the election favored continuation of such operation, and that this did not constitute a delegation of legislative authority.

We conclude that this construction is sound. The language used in § 1 of the statute, when considered by itself, indicates an intention to repeal the former statute, but the language of § 3 indicates a contrary intention, and, when the two sections are considered together, the intention of the framers of the statute is manifest. Quoting the language of one of -our opinions, “in order to conform to the legislative intent, errors in an act may be corrected, or words -rejected and other substituted.” Garland Power & Dev. Co. v. State Board, 94 Ark. 422.

The lawmakers -meant to stop further operations under the former statute and to wind up the affairs of the district, as provided in § 2 of the new statute, unless the vote at the election was in favor of continuation. This was not a delegation of legislative authority. The Legislature cannot delegate authority to enact a law, except in accordance with the provisions of Amendment No. 6 of the Constitution (the initiative and referendum amendment), hut it can enact a law and provide for operation under it to depend upon a contingency or condition, such as a favorable vote of the electors or landowners. There are many of our recent cases on this subject, and the present one falls within that rule.

Decree affirmed.