author: Humphreys, J. Humphreys, J.,

text:
    St. Louis-San Francisco Railway Company v. Daniels.
    Opinion delivered February 1, 1926.
    1. Carriers—injury to passenger—negligence.—Proof that plaintiff in debarking from defendant’s train slipped and fell on a banana peel in the vestibule of the coach, without proof as to how long it had been there, held to sustain a finding that defendant was guilty of negligence.
    2. Carrier—instruction as to negligence.—In an action by a passenger to recover for personal injuries received in debarking from a train, reading to the jury, without explanation, a certain statute of another State, where the injury occurred, which imposed a high degree of care upon a carrier to prevent injuries to passengers, was not error, where no specific objection was made and no request for an instruction explaining the statute.
    3. Carrier—contributory negligence.—It was not error, in an action by a passenger for injuries received in a fall caused by slipping on a banana peel in the vestibule of defendant’s coach, to refuse to give an instruction on contributory negligence, where there was no evidence tending to show such negligence.
    4. Damages—personal injuries—excessiveness.—Where, in an action for personal injuries, there was evidence that plaintiff sustained a wrenched back, from which he suffered great pain, was confined to his toed for six or eight weeks, and passed blood from his kidneys for three months, an award of $1,000 was not excessive.
    Appeal from Crawford Circuit Court; James Cochran, Judge;
    affirmed.

      W. F. Evans, Warner, Hardin & Warner and E. T. Miller, for appellant.

      Evans $ Evans, for appellee.
   Humphreys, J.

Appellee instituted suit against appellant in the circuit court of Crawford County to recover damages in the sum of $3,000 for injuries received by him while disembarking from its passenger train at the station Wister, in Oklahoma, resulting from the alleged negligence of the employees of appellant. The negligence alleged was that appellant permitted and allowed a banana peel to be upon the steps of the passenger coach while appellee was attempting to' alight therefrom, which caused him to slip, fall, and suffer serious and permanent injuries to Ms back, bips, kidneys, and other parts of his body.

Appellant filed an answer specifically denying the allegations of negligence and, by way of further defense, alleged contributory negligence on the part of appellee.

The cause was submitted to the jury upon the pleadings, testimony, and instructions of the court, which resulted in a verdict and consequent judgment in favor of appellee, from which is this appeal.

• The facts revealed by the record are as follows: On the day of the injury appellee was a passenger riding on appellant’s northbound passenger train from Hugo to Wister, in Oklahoma. He was on the way to Booneville, his home, and changed from appellant’s system to the C. R. I. & P. Ry. at Wister. His injury occurred in making the change. When appellant’s train stopped at Wister, he and the other passengers proceeded to alight, passing through the vestibule and out, after the porter raised the trap-door, fastened same, and opened the outside door of the vestibule. The porter was standing at the foot of the car steps to assist the passengers in alighting. Appellee was among the first to disembark following the porter, and in doing so his left foot came in contact with a banana peel, either on the steps or the floor of the vestibule, which caused him to slip and fall to the station platform. The porter assisted him to a chicken coop, on which he sat until the conductor came. After the conductor investigated the accident, appellee was assisted to the waiting-room, where he remained until the Rock Island train came along. When it came, he proceeded on his journey, and, after reaching his destination, obtained medical attention. The testimony is in conflict as to whether the banana peel upon whch appellee slipped was on the steps or floor of the vestibule. The porter testified that he swept the coaches and vestibules after leaving Folsom, and before reaching Wister, and that, when he cleaned the vestibule and opened the trap door, the banana peel was not there. The conductor testified that, as he passed through the train, he Icept a lookout for such things, and that he did not observe a banana peel on the floor of the vestibule before reaching Wister. Henry Mclntire, the “news-butch” on the train, testified that he made only one sale of bananas after leaving Hugo, and that was to an old man; that he did not sell any to two young men; and that he kept a lookout for trash on the floors of the coaches and the vestibules, and that no banana peels were on the floors. Appellee testified that he saw two young men come from the chair car into the smoking car and buy bananas from the “news-butch” and peel and eat them while walking back from the smoker to the chair car; and that this incident occurred before reaching Wister.

With reference to the injury appellee testified that the first joint of his backbone was wrenched and injured by the fall; that he passed blood from his kidneys for three months, and was confined to his bed from six to eight weeks on account of the fall; that he expended $5'2 for medical services; and that he suffered greatly from the injury, and that he was suffering from it almost continuously at the time of the trial. He was corroborated as to the injury to his back and the suffering he endured immediately thereafter and during the time he was being treated, by Dr. Strange, who attended upon and treated him. The jury returned a verdict for $1,000.

Appellant first contends for a reversal of the judgment upon the alleged ground that the evidence failed to establish negligence by appellant’s employees, under the rule that carriers are only required to exercise ordinary care to discover and remove objects calculated to injure the passengers which do not relate to the equipment incident to the operation and mode of conveyance. We think, under the rule of ordinary care to prevent injury to passengers, contended for by appellant as the correct rule, that there is ample evidence in the record to sustain the verdict and judgment. All the evidence tends to show that appellee slipped and fell upon a banana peel lying either upon the steps or floor of the vestibule. The flaet that the porter cleaning up the vestibule and the conductor and “news-butch” failed to observe it a short time before arriving at Wister does not conclusively-establish the fact that the banana peel was not there and had not been there for some time. The jury might have reasonably inferred that it was negligently overlooked by all of them. A part of a banana peel is a small thing, and might easily have escaped the force of the broom in sweeping or the inspection of the “news-butch” and conductor through carelessness on their part, under the rule contended for by appellant.

Appellant next contends for a reversal of the judgment upon the alleged ground that the cause was sent to the jury under declaration that the law -of Oklahoma, where the injury occurred, imposed the highest degree of care upon appellant to discover and remove the banana peel from the vestibule floor or steps, whereas -only ordinary dare was imposed upon it to discover and remove same. The concrete instructions given by the court and requested and refused by the court do not tell the jury that the law of Oklahoma imposed the duty upon appellant to exercise the highest degree of care in discovering and removing the banana peel upon which appellant slipped and fell. On the contrary, the instructions given and refused dealt entirely with the question of negligence, and not with the rule by which the negligence was to be determined. It is true that the court read §§ 800, 801, and 803 of the Oklahoma acts of 1910, and that these acts seemingly impose a high degree of care upon a carrier to prevent injuries to passengers. These statutes were read mofe by way of general and preliminary statement in submitting the issue of negligence than by way of laying down a fixed rule by which the jury was to be governed in determining negligence. This-is revealed by the fact that appellant did not request a concrete instruction interpreting the statutes. Neither t-he general nor special objections made to the reading of the statutes pointed out that the jury might be induced by them to apply the wrong rule in determining the issue of negligence. Neither did the special objections to the reading of the statutes point out to the trial judge that the statutes were applicable, as now contended, only to negligence in failing to furnish proper equipment or to provide necessary facilities for travel. It seems that the earlier and recent cases of Oklahoma are in conflict ias to the proper interpretation of these statutes. In our view it is unnecessary to a determination of the questions involved in this case to interpret the statutes, for, as stated above, appellant should have raised these questions by specific objection to the several instructions or by requesting a concrete instruction interpreting the statutes.

Appellant next contends for a reversal of the judgment because the trial court modified its requested instructions Nos. 4 and 5 by inserting the word platform after the word step in each instruction, and gave said instructions as modified. The amendment was correct, for there was testimony tending to show that the banana peel upon which appellee slipped and fell was lying upon the vestibule floor instead of the step. The modification was made to meet the conflicting- proof. It made no difference whether the peel was on the step or platform of the vestibule, so far as liability was concerned.

Appellant’s next contention for a reversal is that the court refused to give its requested instruction upon contributory negligence. In reading the record we have failed to find any evidence tending- to show negligence on the part of appellee. He testified that he did not see the banana peel until he found a piece of it stuck to his shoe, and saw another passenger kick another piece of it off the platform, and heard him remark to the conductor that the banana peel was what caused him to slip and fall. Again, the question of contributory negligence was covered, unnecessarily, by instructions theretofore given by the court.

Appellant’s last contention for a reversal of the judgment is that the court erroneously instructed the jury as to the measure of damages in that a recovery was permitted for permanent injury when, in point of fact, the evidence adduced, was wholly wanting to show a permanent injury. The instruction upon the measure of damages is long, and we deem it unnecessary to set it out. A careful reading of it reveals that nothing was said about damages for permanent injury. It did allow a recovery for future suffering, and the testimony warranted that direction.

No error appearing, the judgment is affirmed.

Humphreys, J.,

(on rehearing). The contention is made by appellant on rehearing that it requested a specific instruction correctly interpreting the statutes of Oklahoma, which were read to the jury, which was tantamount to making a specific objection to reading* them. The instruction referred to was appellant’s requested instruction No. 4, which the court refused to give. It is as follows:

‘ ‘ The court charges you that, before the plaintiff can recover in this case, he must prove, by a preponderance of the evidence, that the defendant actually knew that the banana peel was on the steps of said passenger car and failed to remove same therefrom within a reasonable time thereafter, or that said banana peel had been on the step of said car for such a period of time that, in the exercise of ordinary care, defendant should have known that said banana peel was on the step of said car and removed it from the steps. Unless you find from the evidence that the defendant actually knew that the banana peel was on the step, or that the banana peel had been there for a sufficient length of time that defendant should have known this, in the exercise of ordinary care, then the defendant was not negligent, and it is your duty to return a verdict for defendant.”

This instruction was properly discarded by the trial court because erroneous in exempting appellant from liability unless it actually knew that the banana peel was on the steps of the passenger car, or should have known it on account of it having’ been on the floor for a reasonable length of time.

Appellant reiterates its insistence .that the damages assessed by the jury were excessive. There is evidence in the record tending to show that the first joint of appellee’s backbone was wrenched, from which he suffered greatly and from which he was continuously suffering at the time of the trial; also tending to show that he was confined to his bed for six or eight weeks and that he passed blood from his kidneys for three months on account of the fall. We are unable to say that $1,000 was an excessive allowance under these circumstances.

Our investigation, on reconsideration of the case, has confirmed us in the view that the judgment was properly affirmed. The petition for rehearing is therefore overruled.


source: Caselaw Access Project

author: McCulloch, C. J.

license: Public Domain

text:
    Herring v. State.
    Opinion delivered February 8, 1926.
    1. Criminal law—denial op continuance—prejudice.—Denial of a continuance on account of sickness of the accused was not prejudicial where he testified at length during the trial, and there is no indication that he was unable to give a coherent statement of the facts about which he undertook to testify.
    2. Criminal law—waiver of arraignment.—Where accused announced ready for trial and proceeded with the impaneling of the jury without asking for a drawn jury until after a portion of the jury had been selected and accepted, he will be held to have waived both the arraignment and the right to have a drawn jury.
    3. Jury—number of challenges.—Where accused, before arraignment, had exercised some of his challenges, he was entitled thereafter only to the number of additional challenges necessary to make up the quota of challenges allowed him by the statute.
    4. Criminal law—exclusion of evidence—harmless error.—The error of excluding proffered testimony will not he held to be prejudicial where the record fails to show what the testimony would have been if the court had admitted it.
    Appeal from Sebastian Circuit Court, Fort Smith District; John E. Tatum, Judge;
    affirmed.

      Cravens S Cravens, for appellant.

      S. W. Applegate, Attorney General, and Darden Moose, Assistant, for appellee. '
   McCulloch, C. J.

This is an appeal from a judgment of conviction for the crime of selling intoxicating liquor. The indictment was returned on March 4, 1925, and appellant was put on trial October 21, 1925. When the case was called for trial, appellant filed a motion for a continuance on the ground that he was seriously ill, and had been in that condition for two or three days past, and that he was unable to attend the trial. There was an affidavit of a physician accompanying the petition certifying to the fact that appellant was side, and would be unable to attend court for several days. The court appointed two physicians to examine appellant, and they reported that he was able, to go to court. Appellant, through his counsel, then contended that, since the examination by the physician on the day before, his condition had grown worse, and that he was unable to attend at that time. The court overruled the motion, and this ruling is assigned as error.

It is unnecessary for us to determine whether the court, under the circumstances, abused its discretion in refusing to postpone the trial, for, even if there was an abuse of discretion, no prejudice resulted. Appellant was in attendance at the trial, testified at length in his own behalf, and there is no indication that he was physically or. mentally incapacitated from assisting his counsel in his defense, or in giving his testimony clearly to the jury. He testified at considerable length during the trial, and there is no indication that he was unable to give a coherent statement of the facts about which he undertook to testify. There was no prejudice therefore in the ruling of the court, even if it constituted an abuse of discretion.

It is next contended that the court erred in denying appellant the right of having a drawn jury from the regular panel, and in denying him a sufficient number of challenges.

When the case was finally called for trial, appellant announced ready and proceeded with the impaneling of the jury without asking* for a drawn .jury until a portion of the jury had been selected and accepted. The question was raised that there had been no formal arraignment, and, appellant then refusing to plead, the court entered on the docket a waiver of arraignment and a plea of not guilty. It was then that appellant’s counsel asked for a drawn jury. It was too late then to make the request, for appellant had, by proceeding with the selection of the jury without a formal arraignment, waived both the arraignment and the right to have a drawn jury. Bettis v. State, 164 Ark. 17. Appellant had exercised a portion of his peremptory challenges up 'to the time this incident occurred in the progress of the trial, and his counsel claimed the right to exercise the full statutory number of challenges after that time. After he had exhausted his twenty challenges, he claimed still another, which the court denied, and this ruling is assigned as error. The contention is that appellant was entitled to the full twenty challenges after the court had noted his waiver of arraignment. This is not true, for the reason that the participation in the selection of the jury constituted a waiver, and all of the challenges exercised up to that time were chargeable against the accused. He did not have the right to disregard the number of challenges up to that time and exercise twenty more thereafter. The effect of his waiver of arraignment was the same as if he had been formally arraigned and had pleaded to the indictment at the beginning of the trial, hence he was chargeable with all the challenges he had exercised from the beginning.

On the cross-examination of appellant, the prosecuting attorney brought out the fact that appellant had served a term in the penitentiary, and on redirect examination appellant’s counsel asked permission for the witness to state the circumstances of his conviction. This request was denied, and the ruling is assigned as error. There was no attempt to bring into the record what the answer of the witness would have been if the court had permitted him to make answer to the inquiry, therefore there is nothing to show that any prejudice resulted from the court’s ruling.

The giving of instruction No. 5 is assigned as error, but this instruction is identical with one which was approved by this court in the case of Humphreys v. State, 168 Ark. 163.

Judgment affirmed.


text:
    Breece-White Manufacturing Company v. Journey.
    Opinion delivered February 8, 1926.
    Master and servant—personal injuries—negligence of fellow-servant.—Testimony held to justify a finding that plaintiff’s personal injuries were caused by the negligence of a fellow-servant in permitting a piece of tin to choke a valve in a steam pipe which caused the carriage on which plaintiff was standing to run wild and throw him off.
    Appeal from Desha Circuit Court; T. G. Parham, Judge;
    affirmed.

      T. D. Wynne, for appellant.

      Scum M. Levine and. L. DeWoody Lyle, for appellee.
   McCulloch, C. J.

Appellant is engaged in operating a sawmill at Arkansas City, in this State, and appellee was employed to work at the mill in handling logs on the saw carriage. His position was that of “front end dogger,” and his duty was to stand on the front end of the saw carriage and turn the logs under the direction of the sawyer, and fasten them to the standards of the carriage by use of hooks. The carriage was controlled entirely by the sawyer, with the use of a lever, and was propelled by steam, and was moved back and forth under the control of the sawyer. At the back end of the carriage run, or track, there was a bumper to prevent the carriage running off. There was a steam feed-pipe, nine inches in diameter, running out from the boiler into the mill, and the steam was distributed through smaller pipes. There were two carriages, and one of the smaller ¡pipes, about five inches in diameter, ran to each of these carriages and fed the steam which operated them. iWhen the sawyer pulled the lever to run the carriage back, it opened the valve so that the steam came through and furnished the power to move the carriage.

■ Appellee was on the carriage when the sawyer moved it back, and it ran with such velocity that it struck the bumper and threw appellee off, and he was seriously injured.

The steam pipes were underneath the mill floor, and -immediately after the occurrence of this incident the employees in charge of the operations there went under the mill floor and unscrewed the cap and took out the valve and found that there was a small piece of tin crumpled up or battered almost into a mass, which was inside of the steam pipe, and had been thrust into the port of the valve, so that, when the valve was opened to let the steam through, this piece of metal prevented the closing of the valve, and the excess of steam pressure caused the carriage to run wild.

It seemed to be undisputed that the carriage got beyond the control of the sawyer, and that this was caused by the valve being held open by this piece of crumpled tin, which should not have been on the inside of the steam pipe.

Appellee recovered damages below, and the only ground urged here for reversal is that the evidence is not sufficient to sustain the verdict, in that it does not show that appellant or its servants put the piece of tin inside of the pipe or negligently permitted it to be put therein or to remain therein after an opportunity to discover its presence.

It is undisputed, as we have already seen, that the piece of tin was inside the pipe, and that it served no purpose there, and should not have been there. The pipes were closed, and the piece of tin conld not have gotten there otherwise than by being put there by somebody in charge. In other words, it was not a situation which might have been brought about by an intruder, and counsel for appellant have not suggested any theory upon which the presence of the piece of tin can be accounted for, other than it was put there by some one in charge of the operation of the mill. In addition to that, there is affirmative testimony that McCain, the engineer who was in charge of the engine and steam pipes, put the piece of tin into the pipe in the process of repairing the valve. A witness named Bland testified that, five or six days before appellee’s injury occurred, he saw McCain working on this particular valve where they found the piece of tin, that McCain was repairing the valve, and that he cut a small, round piece of tin, about the size of this one that was found crumpled up in the valve. McCain testified as a witness, and denied that he put the tin in the valve, and stated that he did not work on this particular valve, but worked on a flange union about twenty feet away from this valve, and that he put in a gasket made of boiler steel, but did not use any tin. He testified that he cut the gasket out of material that he kept in the tool-room. He stated that this was about a month before appellee’s injury occurred.

The question of the weight of the testimony was one for the jury, and we are of the opinion that there was evidence legally sufficient to sustain the verdict.

Affirmed.


text:
    Campbell & Hengst v. Douthit.
    Opinion delivered February 8, 1926.
    1. Statutes—ejusdem generis..—Under Crawford & Moses’ Dig., § 375, making it unlawful to leave “any shaft, well or other opening uncovered on any uninclosed land,” the words “or other opening” are not limited to openings of the nature of shafts or wells.
    2. Negligence—open shafts of wells.—Crawford & Mioses’ Dig., § 375, making it unlawful to leave a “shaft, well or other opening” uncovered on uninclosed land, is not applicable where the opening was made as a part of the construction work of laying the sewer, and was temporarily left uncovered during the progress of the work.
    3. Negligence.—uninclosed opening in alley—stock law.—It was not negligence to leave a sewer opening in an uninclosed alley temporarily in the prosecution of the work, so far as concerns the protection of animals, where a stock law was in force, since it was not to be anticipated that animals would he running at large in the prohibited territory.
    Appeal from .Sevier Circuit Court; B. E. Isbell, Judge;
    reversed.

      Henry Collins and Abe Collins, for appellant.

      Lake, Lake <& Carlton, for appellee.
   McCulloch, C. J.

This is an action instituted by appellee against appellants to recover the value of a mule, the loss of which is. alleged to have been caused by an unlawful act of appellants in leaving uncovered and unprotected a trench along an alley in the city of DeQueen.

The facts are that appellants were contractors with an improvement district, constructing a system of sewers in the city of DeQueen, and that they dug a trench about five feet deep and two feet wide along an alley for the purpose of laying sewer pipe, that they left the trench open over night, and the mule fell into it and died. There was an ordinance prohibiting the running of stock at large in the city, but, according to the evidence, the mule owned by appellee broke out of his lot without any fault on appellee’s part, and wandered through the alley and fell into the ditch. According to the testimony, appellants, in carrying out their contract, would dig a trench and lay the pipe with a shallow covering of dirt, and would wait to hack-fill it until the inspector in charge of the work could make an inspection. There was about 300 feet of the open trench running along the alley, and it was left open during the night, because it was too near the close of the work hour for the inspector to malm an inspection. The mule was found in the ditch, having walked along the ditch for a distance of about .seventy-five feet after it fell in. Appellants put out red lights as warnings alohg the open ditch, but did not cover it or protect it in any other way.

Appellee relied upon the following statute as imposing absolute liability:

“Section 375. It shall be unlawful for any corporation, company, individual, person or association of persons to leave any shaft, well or other opening uncovered on any uninclosed land. Every corporation, company, individual, person, or association of persons who shall dig any such shaft, well, or other opening, whether for the purpose of mining or other purpose, shall be required to securely inclose the same, or cover and keep covered with strong and sufficient covering.” Crawford & Moses’ Digest.

It is, on the other hand, the contention of appellants that the statute only applies to openings which come strictly within the definition of a shaft or well, and that the words, ‘ ‘ or other opening, ’ ’ must be construed, under the doctrine of ejusdem generis, to refer only to openings of similar nature.

Without entering into any discussion of the merits of that contention, we deem it sufficient to say that the question is decided against the contention of appellants in the case of American B. & L. Assn. v. State, 147 Ark. 80. We are of the opinion, however, that the facts of this case, where the opening was made as a part of the construction work of laying the sewer and was temporarily left uncovered during the progress of the work, do not come within the terms of the statute. We think that the statute reaches only to instances where the opening is left permanently or indefinitely, and not merely during the progress of construction, otherwise the statute would be so harsh as to lead to an absurdity, for it would be a violation of the statute to turn aside, even momentarily, without covering the opening. The facts of the present case illustrate the absurdity of adopting a construction of the statute which would require the covering of a trench temporarily. Trenches for laying sewers are dug along streets and alleys, and it would be'an unnecessary burden to require covering* at all times. Of course, those who are in charge of the work must use ordinary care to protect against danger, but the language of the statute does not justify the interpretation that it was intended to require the covering of a sewer trench temporarily left open during the progress of construction work. The trial court erred in holding that the statute applied, and this error calls for a reversal of the judgment.

The facts are not sufficient to warrant a submission to the .jury of the issue of negligence. According to the undisputed evidence, appellants placed red lights as danger signals along the ditch at night, but these signals would serve no purpose, so far as concerns the protection of animals; but there was a stock law in force, and it was not reasonable to anticipate that stock would be running at large. Of course, if the statute does apply, then there would be liability, notwithstanding the prohibition against stock running at large, but since it turns merely upon the question of ordinary care upon the part of those who were in charge of the work, we think' it should be said as a matter of law that animals running at large in prohibited territory was not to be anticipated, and it was not negligence to fail to provide protection. All of the danger reasonably to be anticipated was provided against by the placing of red lights as signals to protect persons going that way.

The case being fully developed and as we are of the opinion that there is no liability upon any theory, no useful purpose would be served in sending the case back for a new trial.

The judgment is reversed, and the cause will be dismissed.


text:
    Orr v. Southern Lumber Company.
    Opinion delivered February 8, 1926.
    1. Logs and logging—removal of timber—reasonable time.— Where timber was deeded to appellees with the right to remove the same as expeditiously as possible, in determining the question of a reasonable time, it is proper to take into consideration the location of the land, its accessibility, the character and quantity of the timber thereon, the seasonableness of the weather, the facilities obtainable for cutting and removing the timber, and all other conditions and circumstances which might affect the cutting and removal of the timber.
    2. Logs and logging—time for removal.—Evidence held to sustain a finding of the chancellor that the defendant was proceeding expeditiously to remove the timber from plaintiff’s land.
    Appeal from Bradley Chancery Court; E. G. Hammock, Chancellor;
    affirmed.

      Wilson é Martin and Lamar Williamson, for appellant.

      Fred L. Purcell, for appellee.
   McCulloch, C. J.

Appellant instituted this action against appellee in the chancery court of Bradley County to cancel a timber deed. The court, on final hearing of the cause, dismissed the complaint for want of equity, and an appeal has been prosecuted to this court.

Appellant is the owner of a tract of land containing 120 acres, situated in Bradley County, and on October 14, 1905, he executed to appellee a deed to the pine timber. The deed contained the following clause with reference to the removal of the timber:

“The party of the second part shall cut and remove said timber as expeditiously as possible, and it is agreed that, unless it shall have removed all the same within a period of thirty years from the date hereof, that it shall be responsible for and pay to the first party the full amount of taxes assessed against said lands after the expiration of said period of thirty years from this date until such time as said timber is removed, and said possession returned to said first party.”

None of the timber had been removed up to the commencement of this action on January 1, 1924, and the ground upon which cancellation of the deed was originally sought is that the time for removal has expired— in other words, that the timber could have been removed if reasonably expeditious methods and opportunities had been observed.

After the testimony in the case had been taken, appellant was permitted to amend his complaint by alleging, as grouuds for cancellation, that appellee had, without appellant’s consent and after execution of the deed, made material alterations therein. The deed was executed on a printed form furnished by appellee and generally used in the purchase of timber, and there was a printed clause which read as follows: “For and in consideration of the sum of............ dollars, to him in cash paid, the receipt of which is hereby acknowledged, has this day granted, sold and conveyed unto the said party of the second part and its lawful successors and assigns forever, all the.............timber over twelve inches in diameter on said lands and enough of the smaller timber for skid poles in removing said timber from the land.” We have in the record the original deed as well as a certified copy, and the original shows the consideration of $375 written in ink in the blank space left for stating the consideration, and the word “pine” is also written in ink in the blank space left for writing the description of the timber, and ink lines are drawn through the following words, “over twelve inches in diameter,” and “.enough of the smaller timber for skid poles in removing said timber from the land. ’ ’ This erasure makes the deed convey ‘ all of the pine timber on the land, ’ ’ instead of limiting the grant to timber over twelve inches in diameter. The allegation of the amendment to the complaint is that the erasure was made after the execution of the deed. This is denied by appellee, and we are of the opinion that the finding of the chancellor on this issue is not against the preponderance of the evidence.

The main reliance of appellant is on the appearance of a slight difference in the color of the ink lines and the color of the written words in the deed. An examination of the deed discloses that the ink lines used in erasing the words appear a little heavier and darker than the writings filling out the blank spaces, but the deed is now more than twenty years old, and it would be an unsafe guide to determine the question of wrongful erasure on such an uncertain indication as a slight difference in the shade or color. There are two witnesses who testified concerning the execution of the deed, appellant himself and Mr. Sharp, who was appellee’s agent and represented appellee in the purchase from appellant. Sharp could not remember the details of the execution of the deed, but his testimony tended to contradict the claim of appellant that there had been a wrongful erasure. Appellant himself is indefinite as to just what the deed contained. He testified that the deed was read over to him by Sharp at the time of its execution, and that there was no reference in it to skid poles. This tends to show that the erasures were made before the execution of the deed, and not afterwards. The chancellor found that the proof was not sufficient to sustain the charge of wrongful erasure after the execution of the deed, and refused to cancel the deed on that ground. We are of the opinion that he was correct in his finding.

On the other issue in the case, as to the expiration of time, appellant insists that the case should be controlled by the line of oases beginning with Earl v. Harris, 99 Ark. 112, holding that, under a clause in a timber deed similar to the one found in the deed now under consideration, there must be an expeditious removal of the timber, notwithstanding the maximum time limit prescribed; but the contention of appellee is that the ease is ruled by our decision in Burbridge v. Arkansas Lumber Co., 118 Ark. 94.

It appears from the testimony in the present case that, at the time of the execution of the deed by appellant to appellee, the latter was operating a large sawmill, and was the owner of about 75,000 acres of timber land, and held timber deeds to nine or ten thousand acres, making a total timber acreag’e of about 84,000 acres. Timber and timber lands were cheap in those days, and appellee acquired this large acreage for future supplies for its mill. The plan was to lay off this large acreage into four blocks and build tram-roads or railroads out into the woods to haul the timber to the mill. Of course, the timber could not all be worked at the same time, and it was necessary to follow a system or plan in order to use the material advantageously on a commercial basis.

We think that the testimony in the present case is almost identical with that in the 'Burbridge case, supra, except that there was a greater lapse of time, a difference of about nine or ten years. But the proof in this case seems to be just as strong in holding that the timber could not, under appellee’s method of handling it, have been removed within the time shown in this case, as the proof in the Burbridge case showed with respect to the removal during the lapse of time therein involved. The substance of the decision in the Burbridge case is stated in the following clause of the syllabi:

“Where timber was deeded to appellees with the right to remove the same as expeditiously as possible, in determining the question of a reasonable time, it is proper to take into consideration the location of the land, its accessibility, the character and quantity of the timber thereon, the seasonableness of the weather, and the facilities obtainable for cutting and removing the timber, and all other conditions and circumstances which might affect the cutting and removing of the timber.”

The doctrine of that case has been distinctly recognized in numerous decisions of our court, and in some, though found not to be applicable to the given state of facts involved, the doctrine of the case has not, to any extent, been impaired. Louis Werner Sawmill Co. v. Sessoms, 120 Ark. 105; Hampton Stave Co. v. Elliott, 124 Ark. 574; Polzin v. Beene, 126 Ark. 46; Southern Lumber Co. v. Hampton, 162 Ark. 470; Ozan-Graysonia Lbr. Co. v. Swearingen, 168 Ark. 595. In Louis Werner Sawmill Co. v. Sessoms and Southern Lumber Co. v. Hampton, supra, we found that the facts with reference to the opportunity of appellants to remove the timber were similar to the facts in the Burbridge case, supra, with reference to the opportunity of the grantee in the timber deed to make removal,-and that the doctrino of the Bur bridge case would apply but for the fact that appellants in those two cases were not the original grantees in the deeds executed by the owners of the timber. We held that the time for expeditious removal must be determined according to the terms of the original grant by the owner and the circumstances surrounding that grant, and not those which attended the subsequent conveyance of the timber by the original purchaser. The present case falls squarely within the doctrine of the Burbridge case, for the facts are the same, not only with reference to the situation of the parties, but the appellee here is the original purchaser from appellant as the owner of the land, and we must construe the deed in the light of circumstances that existed at that time.

Our conclusion upon the whole case is that the chancery court was correct in refusing to cancel the deed, and the decree is affirmed.


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

text:
    Newton v. Altheimer. Newton v. Johns.
    Opinion delivered February 8, 1926.
    1. Judgment—when binding on officer’s successor.—A judgment rendered in a proceeding by mandamus against a county judge compelling action by him in his official capacity is binding upon his successor in office.
    2. Appeal and error—judgment on former appeal.—A judgment on a former appeal became the law of the case and is binding upon a second appeal, and conclusive, not only of every question of law or fact which was decided in the former suit, but also of the grounds of recovery or defense which might have been, but were not, presented.
    3. • Highways—jurisdiction to create—validity of statute.—General Acts 1923, p. 84, authorizing the county court to create suburban improvement districts, among other things, to pave highways, is not invalid as authorizing the creation of public roads and imposing them upon the county court and thereby invading the jurisdiction of that court, since the creation of the district constitutes an establishment of the highway in accordance with the route outlined in the petition for creation of the district.
    Appeal from Pulaski Circuit Court, Second Division; Richard M. Mann, Judge;
    affirmed.

      W. H. Donhami, Lee Miles, Will G. Akers and T. E. Helm, for appellant.

      Gray, Burrow & McDonnell, Bose, Hemingway, Cantrell & Loughborough and B. E. Wiley, for appellee.
   McCulloch, C. J.

These proceedings, brought here by separate appeals, were instituted in the circuit court of Pulaski County by the 'commissioners of certain road improvement -districts to compel the county court, by peremptory mandamus, to apportion to each of said districts its alleged share of road funds as prescribed by special statute enacted by the General Assembly of 1923. Special Acts 1923, p. 370. The cases have been consolidated here for hearing and decision. One of the cases (Newton v. Altheimer) was formerly here on appeal under' the style of Moyer v. Altheimer, and the judgment of the circuit court awarding the writ of man-damns against the county court was affirmed, and the questions of law involved in the attack upon the validity of the statute under consideration were settled in the opinion. 168 Ark. 271. When the mandate of affirmance was filed in the circuit court, there had been a change in the office of county judge- by the regular succession of Judge Newton to the office, and he refused to comply with the judgment on the ground that he was not bound by a judgment rendered while Judge Moyer was in office. Proceedings were instituted by the original petitioners to compel compliance with the judgment, and the circuit court rendered its judgment compelling such compliance. The county judge has prosecuted an appeal to this court.

The commissioners of three other districts of like character filed proceedings in the circuit court seeking the same relief as in the first case. These three proceedings were consolidated in the circuit court, and on final hearing the court rendered judgment granting the relief prayed for.' An appeal in each case has been duly prosecuted by the county judge.

In the first case it is contended by counsel for appellant that the present county judge is not hound by the judgment for the reason that mandamus is a personal remedy, and that the action abates upon the expiration of the term of office of the incumbent. Counsel cite numerous decisions of the Supreme. Court of the United States to the effect that mandamus against an executive or ministerial officer to compel performance of an official duty is personal and abates on the expiration of his term. All of the cases cited decide as contended. For instance, in the recent case of Gorham Mfg. Co. v. Wendell, 261 U. S. 1, the court said: “A suit to enjoin a public officer from enforcing a statute or to compel him to act by mandamus is personal, and, in the absence of statutory provision for continuing it against his successor, abates upon his death or retirement from office. ’ ’

But counsel seem to overlook the important distinction recognized in nearly all of the cases cited, as well as many others, that where the relief is sought against a corporation or municipality or other continuing official 'board, the action does not abate upon a change in the personnel of the office or offices, but continues, and the successors in office are bound by the judgment. In 18 R. C. L. p. 338, the doctrine, supported with practical unanimity of authority, is stated as follows:

“Irrespective of the question whether a mandamus against a public official abates on his death, removal, or retirement from office, the courts very generally agree in distinguishing- between applications for a mandamus against the head of a department or bureau for a personal delinquency, and those against a continuing municipal board with a continuing duty, where the delinquency is that of the boiard in its corporate capacity, the rule being that, if the action is brought against a continuing municipal board, it does not abate b3 a change of personnel. Thus, in the case of an application against a board of county commissioners and its individual members to compel them to levy a tax to pay a judgment, the action will lie, although the terms of the members have expired, as in such cases the corporation cannot die or retire from the office it holds. A change in the personnel of the loan commission of a State or Territory created for the express purpose of liquidating and providing for the payment of its outstanding indebtedness does not, it hias been held, abate a proceeding against the members of such commission, in their official capacity, to compel by mandamus the issue of refunding bonds, where such board was, by the acts creating it, made a continuing body ■with corporate succession, although it was not made a corporation by name.”

The last sentence in the a/bove text was supported by the decision of the Supreme Court of the United States in Murphy v. Utter, 186 U. S. 95.

The case of Commissioners v. Sellew, 99 U. S. 624. was an action against the commissioners of a countv in the State of Kansas to compel them to levy taxes, and in disposing of the case the court said:

“Here the writ is sent against the board of county commissioners, a corporation created and organized for the express purpose of performing” the duty, among others, which the relator seeks to have enforced. The alternative writ was directed both to the board in its corporate capacity and to the individual members by name, but the peremptory writ was ordered against the corporation alone. As the corporation can only act through its agents, the courts will operate upon the agents through the corporation. "When a copy of the writ which has been ordered is served upon the clerk of the board, it will be served on the corporation, and be equivalent to a command that the persons who may be members of the board shall do what is required. If the members fail to obey, those guilty of disobedience may, if necessary, be punished for the contempt. Although the command is in form to the board, it may be enforced against those through whom alone it can be obeyed. * * * We think therefore that the peremptory writ was properly directed to the board in its corporate capacity. In this way the power of the writ is retained until the thing is done which is commanded, and it may at all times be enforced, through those who are for the time being charged with the obligation of acting for the corporation. If, in the course of the proceedings, it appears that a part of the members have done all they could to obey the writ, the court will take care that only those who are actually guilty of disobedience are made to suffer for the wrong that is done. Those who are members of the board at the time when the board is required to act will be the parties to whom the court will look for the performance of what is demanded. As the corporation.cannot die or retire from the office it holds, the writ cannot abate as it did in Boutwell’s case.”

The case of Thompson v. United States, 103 U. S. 480, was one similar to the Sellew case, supra, and the Supreme Court of the United States, speaking through Mr. Justice Bradley, said:

“But we cannot accede to the proposition that proceedings in mandamus abate by the expiration of the term of office of the defendant where, as in this case, there is a continuing duty irrespective of the incumbent, and the proceeding is undertaken to enforce an obligation of the corporation or municipality to which the office is attached. * * * "We have had before us many cases in which the writ has, without objection, been directed to the corporation itself, instead of the officers individually ; and yet, in case of disobedience to the peremptory mandamus, there is no doubt that the officers by whose delinquency it was incurred would have been liable to attachment for contempt. The proceedings may be commenced with one set of officers and terminated with another, the latter being bound by the judgment. * * * If the resignation of the officer should involve an abatement, we would always have the unseemly spectacle of constant resignations and reappointments to avoid the effect of the suit. Where the proceeding is in substance, as it is here, a proceeding against the corporation itself, there is no sense' or reason in allowing it to abate by the change of individuals in the office.”

See also, as in recognition of this doctrine, the following cases: Warner Valley Stock Co. v. Smith, 165 U. S. 28; Bernadine v. Butterworth, 169 U. S. 600; Richardson v. McChesney, 218 U. S. 487; Irwin v. Wright, 258 U. S. 219; Gorham Mfg. Co. v. Wendell, supra.

This suit is against the county court, not against the judge of the court to compel action on his part, though he is compelled by the writ to act for the court over which he presides. The distinction lies in the fact that the action or refusal of a ministerial officer is personal and not attributable to his successor, but the action or refusal of a county judge to act through the machinery of the court over which he presides is controlled by the writ because it is, in effect, a compulsion applied to the court as a continuing body.

It follows from what we have said that the present county judge is bound by the judgment of the circuit court which was affirmed here, and he can be compelled through attachment and contempt proceedings to perform the duty enjoined upon him by the writ of mandamus —that is to say, to act for the court over which he presides, in making the distribution of funds. The decision of this court on the former appeal became the law of the case, and we are bound by it on the present appeal. We decided that the statute involved in the controversy was valid, and that the road district was legally formed and was entitled to the funds as prescribed in the statute. That is all that was involved in the controversy, and the former decision is res judicata. The defendant in the action was bound to take advantage of every available defense, and the judgment is conclusive of all questions within the issue, whether formally litigated or not. “It extends not only to the questions of fact and of law which were decided in the former suit, but also to the grounds of recovery or defense which might have been, but were not, presented.” Howard-Sevier Road Imp. Dist. v. Hunt, 166 Ark. 62. In the later proceedings involving the three other road districts the material questions of fact and of law were the same as in the first case, and we are bound by the decision under the doctrine of stare decisis. All four of the districts were formed-by orders of the county court pursuant to the same statute, and we decided that the validity of the organization of the districts was conclusively settled by the order of the county court creating them, that the statute prescribing the distribution of funds was valid, and that the districts were entitled to the distribution. In the opinion on the former appeal we said: “On examination of the record we fail to find any reference to the character of the roaa as to whether or not it was a public highway at the time it was to be improved, but we must indulge tne presumption, until it appears to the contrary, that the improvement district was legally organized, and that it was a public highway. It was a district organized by order of the county court on petition of a majority -of the owners of property, and the presumption is con-elusive that the road to he improved was established as a public highway.” This decision necessarily established the validity not only of the statute, supra, prescribing the distribution of funds, but also the statute under which the district was created.

The validity of the statute under which the district was created (General Acts 1923, p. 84) is attacked on the ground that it gives private owners of real property power to create public roiads and impose them on the county court, thereby invading the jurisdiction of that court. The statute authorizes the county court to create suburban improvement districts on petition of a majority of the owners of property in the territory adjacent to the proposed improvement. The authority relates to different kinds of improvements, among others “grading, drainage, paving, curbing and guttering streets and highways,” and there is no authority for formation of a district for the improvement unless it is a public highway. Therefore the order of the county court creating the district constitutes an establishment of the highway in accordance with the route outlined in the petition. The county court is not compelled, under the statute, to establish the highway, and may refuse to create the district-because the road or street to be improved is not already a highway. The statute, for this reason, does not constitute an invasion of the jurisdiction of the county court, and the validity -of the statute in this respect is ruled by our decision in the case of Sallee v. Dalton, 138 Ark. 549, and numerous other cases following it. In the present case the county judge testified that the roads to be improved in the districts were not in fact public roads, but, as we have already said, they were made such by the order of the county court in authorizing their improvement as public highways. It was also shown in the trial below that these districts were all promoted by a group of individuals who were personally interested in the various projects. The judgment of the countv court in creating the district cannot be attacked collaterally by showing the motives and actions of individuals who petitioned for the improvement- and who promoted the project. We have nothing to do with the policy of the legislation now under consideration, but we are .called upon to deal solely with the question of its validity and the correctness of the proceedings thereunder in these instances. We are of the opinion that the statutes were valid, and that the formation of the district and the other proceedings have been conducted in accordance with the statute and must be upheld. We so held in the former decision.

It is further contended that appellees have not brought themselves within the terms of act No. 195, supra, in filing proper plans and specifications with the petitions for allotment. Without going into details on this subject, it is sufficient to say 'that the plans and specifications filed with the petition appear, according to the testimony, to be sufficient. The circuit judge so found, and we think the decision in that respect was correct.

It follows that, in the opinion of the majority, each of the judgments of the circuit court was correct, and the same is affirmed.

Hart, J.,

(dissenting). If the acts of the Legislature under which the rural improvement districts in question were created are a valid and constitutional exercise of legislative power, Judge Wood and myself concede that the writ of mandamus was properly granted by the circuit court, and that its order should be affirmed. While conceding legislative power over the subject-matter of road improvement districts, we deny that it has been constitutionally exercised upon several grounds, and, if we are correct in this, the writ should not have been issued. As said by Chief Justice Puller, “mandamus lies to compel a party to do that which it is his duty to do without it. It confers no new authority; and the party to be coerced must have the power to perform the act.” Brownsville v. Loague, 129 U. S. 493.

We appreciate that the general rule of the law of the case and the doctrine of res judicata are founded on public policy, reason and experience. If all questions that have been decided by this court are to be regarded as still open for discussion and revision between the same parties, there would be no end of litigation until the ingenuity of counsel and the financial ability of the parties had been exhausted. Miller Lumber Co. v. Floyd, 169 Ark. 473; and Tri-County Highway Improvement Dist. v. Vincennes Bridge Co., ante p. 22.

It is equally well settled that, where different questions of law arise on the second appeal, or the record presents a different state of facts, the former decision is not controlling. Jennings v. Bouldin, 98 Ark. 105, and Scott v. Cleveland, 122 Ark. 259. Where the facts are different, they present different questions of law, and no such 'bar can be asserted. Hartford Fire Ins. Co. v. Enoch, 79 Ark. 475; and United States Annuity & Life Ins. Co. v. Peak, 129 Ark. 43.

. And too it is elementary that an unconstitutional law cannot be held valid as to particular parties on the ground of estoppel, and executed as a law. O’Brien v. Wheelock, 184 U. S. 450.

In that case Mr. Chief Justice Fuller, who delivered the opinion of the court, said that the courts cannot, by the execution of an unconstitutional law as a law, supply the want of power in the legislative department.

In the Town of South Ottawa v. Perkins, 94 U. S. 267, Mr. Justice Bradley, speaking for the court, said: “There can be no estoppel in the way of ascertaining the existence of a law. That which purports to be a law of a State is a law or it is not a law, according as the truth of the fact may be, and not according- to the shifting circumstances of parties. It would be an intolerable state of things if a document purporting to be an act of the Legislature could thus be a law in one case and for one party, and not a law in another case and for another party; a law today, and not a law-tomorrow; a law in one place, and not a law in another in the same State. And whether it be a law or not a law is a judicial question, to be settled and determined by the courts and judges. The doctrine of estoppel is totally inadmissible in the case. ’ ’

It is certain that the constitutionality of the acts under which the improvement districts in question were formed was not passed upon in Moyer v. Altheimer, 168 Ark. 271. There is not a line in the opinion in that case in which the constitutionality of the acts is discussed or even referred to. On the contrary, the court carefully refrained from passing’ upon the constitutionality of the act under which the districts were formed. That the court did not pass upon the constitutionality of the act under which the record now shows the improvement districts in question were formed, is made plain from the following- quotation from the opinion in the Moyer case: “On examination of the record we fail to find any reference to the character of the road as to whether or not it was a public highway at the time it was to be improved, but we must indulge the presumption, until it appears to the contrary, that the improvement district was legally organized, and that it was a public highway. ’ ’

While no express mention of it is made, the court doubtless refrained from passing upon the constitutionality of the act under the familiar principle that courts will not pass upon the validity or constitutionality of a statute if the case can properly be decided upon any other clear ground. Road Imp. Dist. No. 1 v. Glover, 86 Ark. 231.

In Boyd v. Alabama, 94 U. S. 645, Mr. Justice Field, in discussing the question, said: “Courts seldom undertake, in any case, to pass upon, the validity of legislation, where the question is not made by the parties. Their habit is to meet questions of that kind when they are raised, but not to anticipate them. Until then they will construe the acts presented for consideration, define their meaning, and enforce their provisions. The fact that acts may, in this way, have been often before the court, is never deemed a reason for not subsequently considering their validity when that question is presented. Previous adjudications upon other points do not operate as an estoppel against the parties in new cases, nor conclude the court upon the constitutionality of the acts, because that point might have been raised and determined in the first instance. 1S0 when, in the present case, the point was taken for the first time against the constitutionality of the act of 1868, the court was not precluded by the previous decisions from freely considering and determining it. Having considered it, the court came to the conclusion that the act could not be sustained.”

Such we believe has heretofore been the rule in this State. To illustrate, in Road Imp. Dist. No. 1 v. Glover, 86 Ark. 231, the court said that grave questions as to the constitutionality of the act had been raised, but that, under the settled practice of this and all other appellate courts not to pass upon the validity or the constitutionality of an act of a coordinate department of the government if the case can properly be decided upon any other clear ground, the court would not pass upon the constitutional question. Glover, who was a property owner in the district, then brought a new suit in which he only attacked the constitutionality of the act. This court was asked to advance the case on the docket, and refused to do so for the reason given in the opinion. Road Imp. Dist. No. 1 v. Glover, 86 Ark. 561. The case was finally reached, however, on the call of the calendar, and the case was heard and determined by the court, and the constitutionality of the act was passed upon. Road Imp. Dist. No. 1 v. Glover, 89 Ark. 513.

Judge Battle, who delivered the opinion of the court, said: “We are of opinion, however, that the Legislature can, by a valid act, authorize the organization of a part of a county into a road district for the purpose of repairing, maintaining, and improving public roads in such district already in existence, upon the petition of the majority in value of the landowners in the territory to be affected, the cost and expense of such improvement to be paid with money derived from local assessments; and that this can be done upon the theory before suggested. But a majority, of the judges of this court are of opinion that such districts cannot be formed or authorized to lay out and establish new public roads and impose upon the county court the duty to maintain them, as in § 9 of the act. They hold that this would be usurpation of the exclusive jurisdiction of the county court over roads. The writer does not concur in this view.”

It is plain that the majority of the judges were of the opinion that road improvement districts could not be formed or authorized to lay out and establish new public roads. It was expressly held that this would be usurpation of the exclusive jurisdiction of the county court over roácls. The provision of the Constitution referred to was art. 7, § 28, providing that the county courts shall have exclusive original jurisdiction in all matters relating to roads. This particular provision of the Constitution has been so often before this court of late years that an extended discussion of the effect to be given to it and the extent and limit of its requirements would be out of place. It would s.eem, however, that, if language is to be taken in its ordinary and common meaning, the effect of the holding in the Glover case is that it is unconstitutional to pass an act providing for the laying out of new roads and the improving of the same by improvement district methods and commissioners. In short, in the Glover case it was held that improvement districts might be formed to improve existing highways, but they could not be formed to lay out and establish new roads and improve them-. That is precisely what was done .in the case at bar. The record shows that the' improvement districts in question were organized under act 126 passed by the Legislature of 1923, amending act No. 660 of the Acts of the General Assembly or 1921 and act 645 of the Legislature of 1923 amendatory thereof. See General Acts of 1923, pp. 84 and 538.

Under § 1 of act 126, in certain localities and under certain conditions it is made the duty of the county court to lay off into an improvement district the territory described in the petition for the purpose of building- streetcar lines, waterworks, or water-pipes, system of gas-pipe lines, electric lines for light and power, or sewers, or for grading, draining, paving, curbing and guttering streets and highways and laying sidewalks, or for more than one of said purposes. The section further provides that portions of incorporated towns and cities may be included in said districts under certain conditions.

Section 4 provides that such districts may be organized for the purpose of grading, draining, paving, curbing, or guttering streets and highways and laying sidewalks, and for other enumerated purposes not necessary to mention.

Section 16 provides that the board of commissioners may issue bonds of the district and may pledge and mortgage all assessment of benefits for the payment thereof. The bonds may run for thirty years.

- Section 18 provides that the district shall not cease to exist upon the completion of the improvement, but shall continue to exist for the purpose of preserving it and keeping it in repair.

Section 26 provides that all districts organized under the act shall have the right of eminent domain in order that they may carry out the purposes of their creation.

Under the act, upon the petition of a majority in value of the owners of real estate in any territory adjacent to a city having a population of more than ten thousand inhabitants, it shall be the duty of the county court to lay off into an improvement district the territory described in the petition for the purpose of grading, draining, paving, curbing, and guttering streets and -highways and laying sidewalks and for constructing all other improvements which may be constructed in cities and towns. Under the act, owners of rural lands may subdivide them and plat them into streets, just as an addition to a town or city is subdivided and platted, and impose their cost and upkeep upon the public, just as existing highways are repaired and maintained.

In this connection it may be stated that, under § 30, the county courts are authorized to turn over to any road or street improvement district organized under the act such proportion of the road tax as may be just and equitable, or any portion of the automobile or gasoline tax, and the county courts are further authorized to contribute such funds in money or scrip to the expense of such improvement from the general revenue of said county as it may deem appropriate. Under this section the district is also authorized to receive any part of the funds that may be set aside by the Government of the United States for the improvement'of public roads and that may be hereafter set aside by the State for aid in the improvement of public roads. The section further directs that the commissioners of the district and the State Highway Department shall take such action as may be necessary to secure any of said funds for said district as an improvement of a part of the public roads of the State in which the State has an interest. Special act 195 provided for an additional donation for the aid of rural improvement districts organized in Pulaski County. Special Acts of 1923, p. 370.

Thus it will be seen that the act under consideration and those passed in aid of it were enacted to enable the owners of rural lands to organize improvement districts for having their lands platted into subdivisions, with streets and sidewalks, just as is done in additions in cities and towns, and to improve them under the improvement district plan, and make them a part of the public roads of the various counties. As will be seen by reference to the language in the opinion in the Glover case, this is just what the court held could not be done. In language as plain as could be expressed, it was stated that the majority of the judges of this court were of the opinion that improvement districts could not be formed or authorized to lay out and establish, new public roads and impose upon the county court the duty to maintain them.

As above stated, the record before us now shows that these public roads, if they can be called such, were laid out as new roads, and it is made the duty of the State Highway Commissioner as well as the commissioners of the district to take the necessary steps to give them all the State and Federal aid which was intended for the purpose of improving and repairing the public roads which were laid out under the general laws of the State. The roads and streets under consideration were not public highways, but were the property of private persons, and may only be made public highways by the order of the count court which at the same time formed the improvement district.

"While the decision of the circuit court is expressly affirmed under the doctrine of res judicata, in the majority opinion an attempt is made to evade the force of the decision in the Glover case by the following: “The county court is not compelled under the statute to establish the highways, and may refuse to create the district because the road or street to be improved is not already a highway.” Now, as we have just seen in the Glover case, the court expressly held that improvement district agencies could not be used at all to lay out and establish new roads and at the same time improve the same. It makes no difference whatever that they should act under the so-c.allecl supervision of the county court. In the Glover case it was intended for all time to prevent new roads from being* laid out by improvement district commissioners and at the expense of the landowners and the general public and then be made a part of our public road system.. The reason is apparent. Our constitutional provision was designed to prevent any interference with the general highway system- of the State or the keeping of the highways and public roads in repair under that system. Public roads are free to all, and should be laid out to promote the public convenience, and not for the sake of private gain to any one.

W^e cannot see how the case of Sallee v. Dalton, 138 Ark. 549, and.our numerous other cases following it, have anything whatever to do with the principles of law in the case at bar. In the .Sallee case we all recognized that, in changing from a system of dirt roads to hard roads, it would be necessary to widen the old roads in places and to straighten them in other places. -Such a course would not be a departure from the rule announced in the Glover case that improvement districts could not be. formed to lay out new roads. These immaterial changes in straightening and widening roads would not constitute laying out new roads, but could be done as an incident to the improvement of the old or existing roads. Judge •Wood and myself dissented in those cases on the ground that it was made a mandatory duty of the county court to change the roads in accordance with the plans of the road commissioners, when we thought whatever ^discretion that was to be exercised in the matter should be exercised under the Constitution by the county courts. In other words, we thought that the presiding judge of the county court should be the governing power in the matter, and that the Legislature could not make it his mandatory duty to sign such orders for immaterial- changes in the old roads as might be presented to him by the road commissioners. If, in the opinion of the majority of the court, it was deemed necessary to-explain or modify to any extent the holding in the Glover case, this should have been done in unmistakable language. The practice of overruling decisions by insensible degrees and by apparent. analogy is not one to be commended. It must be conceded that the practical effect of this decision is to overrule the Glover case, in so far as the improvement districts under consideration are concerned. By no sort of reason can this conclusion be escaped. It was plainly said in the Glover case that improvement districts cannot be formed or authorized under our Constitution to lay out and establish new public roads and impose upon the county court the duty to maintain them. That is precisely what was done here. New roads were laid out under the improvement district plan, and it is made not only the mandatory duty of the county court to assist in maintaining them out of the public road funds, but it is also made the duty of the .State Highway Commissioner to obtain allotments from the State road funds, and they go further and provide for Federal aid to these roads. What will be the ultimate result cannot be foretold. To illustrate: suppose other individuals lay off additions in this or other counties and petition the county court to organize them into an improvement district, will it be said that, under the Sallee case and under this case, the county court may not refuse to organize such a district? When the case reaches this court, the doctrine of res judicata certainly cannot apply to the parties. The court must then pass upon the constitutionality of the act. There is no express declaration in the present opinion that the doctrine of the Glover case is overruled. Suppo'se a majority of the judges, when a new case is presented, should hold the act to be unconstitutional upon the ground discussed in this opinion, or upon several other grounds which might be considered, we should then have the anomalous condition of a law purporting to be a general.law applying in one part of the State and not being in force in another part of the State; or, if a new district should be attempted to be formed in Pulaski County and the act held to be unconstitutional, the law would be in force in one part of Pulaski County and not in force in another part of the same county.

Other reasons might be given to show that the act is unconstitutional, but we believe that the opinion in the case at bar is in direct conflict with the holding in the Glover case, and, until there is an express overruling of the doctrine in the Glover case, we wish to adhere to what we believe to be the plain meaning of the language there used, and do not deem it necessary to incumber this opinion with other and additional reasons showing the invalidity of the act.

In this connection it may be stated that the doctrine in the Glover case was expressly reaffirmed in Cox v. Road Improvement Dist. No. 8 of Lonoke Cournty, 118 Ark. 119, where the court said:

“It is first contended that the proceeding is void because its purpose is to authorize the construction of new roads. If such is its purpose, then the proceedings are void. In the case of Road Imp. Dist. v. Glover, supra, it was held that road improvement districts could not be formed and authorized to lay out and establish new pub-lie roads and impose upon the county court the duty to maintain them. The agreed statement, however, does not show any purpose to lay out and establish new roads and impose the burden of their maintenance on the county court, but it recited that the purpose of the district is to improve certain of the public roads within the limits of the district. At another place in the agreed statement the roads are referred to as county roads, and we cannot assume, in the face of this stipulation, that it is proposed to improve roads upon which the rights of the public have not already become fixed and the supervision and care of which has not already been assumed by the county court. ’ ’

Wood, J., concurs in this dissent.


author: Wood, J.

text:
    Woodruff v. Rural Special School District No. 74.
    Opinion delivered February 8, 1926.
    1. Schools and school districts—special school districts— regularity of creation.—An order of the county board of education creating a rural special school district, which recites that an election favoring the creation of such district was “properly and legally held,” was sufficient to show that the required notice of the election was given and that the election was held at the time and in the manner prescribed by law.
    2. Schools and school districts—statute construed.—Acts 1919, No. 15, regulating the creation of rural special school districts, is a general act which applies to Greene County.
    3. Schools and school districts—building fund tax.—Provisions of Acts 1911, No. 169, § 8, relating to the voting of a special building fund and the amount of the building fund tax, are not covered by Acts 1917, No. 180, and are not repealed thereby.
    4. Schools and school districts—building fund tax.—While the Legislature could not, under Amendment 9 to the Constitution, authorize a tax for school purposes exceeding 12 mills to be voted or used for other than school purposes, in other respects the power of the Legislature is supreme, and it may authorize the electors of a special school district to vote for a building fund not exceeding 12 mills on the dollar, to be continued until the bonds issued therefor and interest thereon are paid.

      Appeal from Greene Chancery Court; J. M. Futrell, Chancellor;
    affirmed.

      Cooley, Adams & Fuhr, for appellant.

      Horace Sloan, for appellee.
   Wood, J.

This action was instituted in the chancery court of Greene County, Arkansas, by the appellant, J. 4'. Woodruff, against the appellees, Rural Special School District No. 74, hereafter called district, and its directors. The appellant alleged that the appellees were about to borrow money and issue and sell bonds and mortgage the school site and building to secure the same, in pursuance of an election had at which there was voted a permanent building fund tax of six mills per annum by the electors of the district for the purpose of paying the principal and interest on the bond issue. The appellant alleged that this action which the board of directors was about to take was illegal and ultra vires for the following reasons: (1) that the order of the county board of education creating- the defendant district does not recite on its face that any notice was given of the election in the creation of the district; (2) that the petition for the creation of the district was presented to the board of education on August 6, 3920, and the board fixed August 21, 1920, as the date for the election, which date was more than fifteen days after August 6, 1920; (3) that there is no law applicable to Greene Couuty authorizing the formation of rural school districts; (4) that the taxpayers of the district have no authority to create a permanent building fund tax for the purpose of paying- principal and interest on the bond issue.

The appellees answered denying- specifically the allegations of the complaint as to the alleged illegal procedure by the board of directors of the district, and alleged that on November 28,1925, the county board of education amended the minutes of the meeting of the directors at which the district was created so as to include an express recital of notice. The appellees also set up that the district had been exercising its functions as a rural special school district since the date of the order of its creation, and that it was in any event a de facto district with full authority to do the things of which appellant complains.

The canse was submitted on the pleadings and an agreed statement of facts, which set forth in substance the following:

1. That the facts alleged in the complaint and not denied by the answer are admitted to be true.,

2. At the instance of the county board of education in 1920, six copies of a notice of the election to be held were posted within the limits of the district on the day that the 'calling of the election was made, stating the time, place and purpose of the election and describing the territory to be included in the district.

3. There was no newspaper within the territory of the district and no incorporated town.

4. A copy cf the order calling the election is attached to the complaint and a copy of the order creating the district; on the next sheet of the complaint was a copy of the order of the county board of education made on November 28, 1925; J. L. Rogers was a member of the county board of education of Greene County at the time the order was made establishing the district; the other members of the present board have been elected since that date; Rogers was present at the board meetings when the election was called for the organization of the district and also at the meeting when the order was made creating the district; the original papers pertaining to the organization of the district are lost.

The minutes of the meeting of the county board of education of November 28,1925, recited that, at a meeting of the county board of education of Greene County, Arkansas, on September 18, 1920, establishing the district, the minutes of that meeting should have recited the following: “And it further appearing that due notice of said election was given by posting notice in at least five public places in said school district, said notices being posted, that the order calling the election was made, and stating the purpose of and the time and place fixed for holding the election, said notices in all things complying with the statutes of Arkansas and the order of this board;” that these words were omitted from the minutes of the board meeting of September 18, 1920, establishing the district, through clerical error.

5. That a copy of the returns of the annual school election held on the third Saturday in May, 1925, certified to by the judges and clerks of the school election, and the findings and order of the Greene County Board of Education on such election show that the election was regularly held, and that there were twenty-three votes for a building fund tax of six ■mills per annum, and one vote against it, and also that there were twenty-three votes for borrowing the money, issuing bonds and mortgaging the school site and building to secure the bond issue for the purpose of 'building and equipping a new school building in the district, and none against it.

The county board of education, upon consideration of the returns, found, among other things, that the notice for the above election was duly posted on April 28, 1925, in five different places in the district, stating the time and place of the election, and that the officers of election duly conducted the same, and the board declared the result of the election to be that the majority of the electors voted in favor of borrowing money, issuing bonds, and mortgaging the school site and building to secure the bond issue for the purpose of securing funds for building and equipping a new school building on the site selected by the electors, and that the majority of the electors voted in favor of a permanent building fund tax of six mills on the taxable property in the district for the purpose of paying principal and interest on the bond issue.

6. It is further agreed that William Burnley would testify that he remembered seeing posted at different places in the district notices of the election on the organization of the district; that there was as large a vote at that election as at any regular annual school election in the district held after regular notice, the vote of the district being practically unanimous; that he had not heard of any elector objecting to the creation of the district; that he had been a member of the board of directors since that time, and that the district had always functioned as a rural special school district and had been so treated by the county superintendent, the assessing and tax collecting officials, and the county clerk and treasurer; that since that time they had held school elections as .distinguished from school meetings usually held by common school districts; the old school house had reached a state of dilapidation, and the district could not continue to have a school until the new building was erected; that the building could not be erected unless the money could be borrowed on long time on a bond issue; that, in the judgment of the board of directors, a six-mill tax could be pledged for the building fund and at the same time have sufficient funds left to have the school taught for at least eight months in each year.

7. That the appellee district was the first rural special school district attempted to be created by the Greene County Board of Education after the establishment of that board; that since that time several rural special school districts have been created, all of them following the form used in creating the appellee district.

Tip on the pleadings and facts stated, the chancery court entered a decree dismissing the complaint for want of equity, from which decree is this appeal.

1. The appellant’s counsel contend, first, that the order of the county board of education creating the district is void on its face because it does not recite the giving of notice. The statute under which the rural .special school districts are established out of one or more common school districts nowhere provides that the order of the county board of education creating the district shall recite that notice was given of the election. Sections 8831-8842, 'Crawford & Moses’ Digest. Conceding, without here deciding, that the notice of election is jurisdictional, yet, in the absence of a statute requiring the county board of education to recite such fact in its order and making such recitals the only proof of fact of notice, the order creating the district is not void because of a failure to recite expressly that notice of the election was given. The order of the county board of education creating the district contains the following recital:

“It further appearing to the county board of education that such election was held at the time and in the manner prescribed by law and that said election was in all things properly and legally held and in all things conformed to the county board of education.” This recital was sufficient to show that the board of education found that the election was held at the time and in the manner prescribed by law. The election could not have been held at the time or in the manner provided by law unless the notices prescribed by the statute had been given. Therefore the order of the county board of education does in legal effect recite that the notice of the election was given, although it does not in express words say “notice of the election was given.” We are convinced that the order of the county board of education creating the district is not void because it fails in express terms to recite that notice of the election wlas given. If the statute contemplated that the order of the county board of education creating the district should show that the notice of the election was given as a condition precedent to the validity of the order creating the district, nevertheless it is not contemplated that the order shall set forth in haec verba that notice was given, or detail in minutiae the steps that were taken in order to constitute due and legal notice. A finding and recital of the board in its order, above set forth, meets every requirement of the law to show that notice of the election was given. If the order of the county board of education had recited in express words that notice of the election was given, such recital would not have been as complete to show that the law had been complied with as is the language used above set forth. It must be remembered that the procedure for establishing rural special school districts is not in the nature of a suit inter partes.

2. The appellant next contends that the order calling the election does not designate a proper time. The law provides that the county board of education shall designate a day for the election not less than seven nor more than fifteen days distant after the presentation of the petition to said board. Sections 8828-8832, C. & M. Digest. The facts show that the election was called on the 6th of August, to be held on August 21. Excluding one of the days from the count, not more than fifteen days elapsed from the day the election was called until it was held.

3. It is next urged by learned counsel that there is no law applicable to Greene County authorizing the formation of rural special school districts.; They say that the original act providing for rural special school districts (act 321 of the Acts of 1909, p. 97), was repealed by act 35 of the Acts of 1915, p. 108, citing Special School District No. 33 v. Howard, 124 Ark. 475, where we so held. But act No. 35, supra, only applies to the changing and altering of boundary lines of single or special school districts. It does not cover the subject-matter of the creation of rural special school districts cut of one or more common school districts, which is the subject-matter of § 8831 of C. &M. Digest (act 15 of the Acts of 1919, p. 6.). Therefore• the latter act (act 15 of the Acts of 1919), being a general law, does apply to Greene County, and there is no special act applicable to Greene County covering the same subject-matter in conflict therewith or repealed thereby. If there be a conflict between act No. 35 of the Acts of 1915 and act 15 of the Acts of 1919, as applied to Greene County, then the latter act, being the last enactment on the subject, would prevail. So, in any view, act No. 15 of the Acts of 1919, under which the district under review was organized, is applicable to Greene County.

4. Counsel urge in the last place that the provision for a permanent building fund tax is illegal. Under Amendment No. 9 to the Constitution, the General Assembly “may, by general law, authorize school districts to levy by vote of the qualified electors of such district a tax, not to exceed twelve mills on the dollar in any one year, for school purposes.” The facts show that the voters at the annual school election in May, 1925, voted a permanent building fund tax of six mills for the purpose of paying the principal and interest on a bond issue to procure funds for a new school building and equipment.

¡Section 8 of act 69 of the Acts of 1911, page 141, approved April 7,1911 (§ 8840, C. & M. Digest), provides in part as follows: “The board of directors shall have the power to borrow money for building purposes if authorized by a vote of a majority of the electors of the district at any annual election. Such vote may be ‘For building fund,’ or ‘Against building fund,’ and shall state the amount of the building fund tax which the voter desires levied. * * * If a majority of the votes cast are ‘for building fund,’ it shall be equivalent to voting a building tax of the amount or rate as determined by this section for each succeeding year until the money borrowed by the board of directors, pursuant to such vote, together with all the interest thereon, shall have been fully paid. When a building fund has been specially voted for, as provided in this section, the board of directors may borrow money, and mortgage the real property of the district as security therefor, under such conditions and regulations as to amount, time and manner of payment as the board of directors shall determine, and may, from time to time, renew or extend any evidence of indebtedness or mortgage issued or executed hereunder. All moneys borrowed under this provision shall be placed in the county treasury to the credit of the building fund of the district, and the board of directors shall issue to the person, firm or corporation advancing or lending such money a certificate, signed by the presi-' dent and secretary of said board, in the following form:” The act then sets forth the form of the certificate to be used in triplicate, and provides that one copy shall be filed with the clerk of the county court, and then continues: “Upon the filing of said certificate, it shiall be the duty of the county court to levy each succeeding year a building tax of the amount or rate voted for, against the property in said district, until the amount thus borrowed, with the interest due thereon, has been fully paid.”

Act 180 of the Acts of 1917, approved March 6,1917, pages 983, authorizes rural special school districts to borrow money for the purpose of purchasing school sites and buildings and erecting, constructing and repairing a school building or buildings, and to issue bonds for that purpose and to mortgage the property of the district for the security of the bonds. There is a provision in this act to the effect that this act shall not be construed as. authorizing any board of directors of any rural or consolidated special school district to issue bonds unless authorized to do so by vote of the legal electors- at the annual school election as provided in act 321 of the Acts 1909 of the General Assembly of the State of Arkansas. It is also provided that it shall ibe unlawful to use any money arising from the sale of any bonds issued under the act “for any use or purpose whatever than herein specified and directed,” and making it a felony to do so. There is no provision in the latter act to the effect that, if a majority of the votes cast are “for building fund”, it shall be equivalent to voting a building tax of the amount or rate for each succeeding year until the money borrowed by the board of directors, pursuant to the vote, together with the interest thereon, shall have been fully paid, as is contained in the act of 1911. Counsel for the appellant contend that the provisions of § 8 of act 169 of the Acts of 1911, supra, are repealed by act 180 of the Acts of 1917, supra. They say the provisions of the latter act were intended to cover ‘the entire subject-matter of the former as to the borrowing of money and the .issuing of bonds by rural special school districts.

But we do not find any conflict in the two statutes. An examination of them, without further setting out their provisions, will show that the act of 1917 does not cover the entire subject-matter o.f § 8 of act 169 of the Acts of 1911. While the provisions of § 8 of act 169 do authorize the board of directors, when a building fund has been voted by a majority of the electors at the annual election, to issue bonds for money for building purposes and to mortgage the property of the district as security therefor, as in the act of 1917, there are other provisions in § 8 of act 169, supra, not covered by the act of 1917 at all. And it does not appear from the provisions of the latter act that it was intended to cover all the provisions of the former act, and that it -was intended as a substitute therefor. The provisions in § 8 of act 169 relating specifically to the voting of >a special building fund and the amount of the building fund tax are not covered by the provisions of act 180 of the Acts of 1917.

Amendment No. 9 to the Constitution, supra, does not inhibit the Legislature from enacting a law authorizing the electors in rural school districts from voting for a building fund tax and issuing bonds and borrowing-money for buildings to be used for school'purposes, as the Legislature has done in act No. 169 of the Acts of 1911, supra. In the absence of such inhibition, the Legislature has plenary power over the subject. The only limitation upon the legislative authority to be found in the Constitution is that the tax voted for school purposes in any one year shall not exceed the sum of twelve mills on the dollar. But this provision does not inhibit the .Legislature from authorizing the electors in rural school districts to vote for a building fund not to exceed twelve mills on the dollar in any one year, and such tax to be continued each succeeding year until the money borrowed by the board of directors pursuant to such vote, together with the interest thereon, shall have been fully paid. To be sure, Amendment No. 9, supra, contemplates that the taxes of school districts for school purposes shall be levied annually by the qualified electors of the district, and that this tax, when voted for school purposes, shall not exceed twelve mills on the dollar.

The amendment is not self-executing The Legislature had to provide for the election to be held under it. The Legislature'could not authorize the electors, at the annual school election 'provided, to vote a tax exceeding twelve mills on the dollar, nor to vote a tax for any other than school purposes; nor could the Legislature authorize the tax, when voted, to be used for any other than school purposes. But, within these restrictions, and in all other respects, the power of the Legislature is supreme. Therefore we conclude that it was within the power of the Legislature to provide, as it has done in § 8 of act 169, supra, that the electors of the district may, at any annual election., vote for a building fund tax not exceeding’ twelve mills on the dollar, to be continued until the bonds and the interest thereon are paid.

The decree is correct, and it is therefore affirmed.