text:
    Bourland v. First National Bank Building Company.
    Opinion delivered February 20, 1922.
    1. Municipal corporations — selection op city depository — discretion. — Under Acts 1913, p. 48, authorizing a commission form of government for certain cities of the first class, and providing (§ 21) that a contract for the custody of city funds shall be let to the bank offering the best inducements as to interest and security, and that the board of commissioners shall have the right to reject any and all bids, held that there is a discretionary power in the board in determining the depository, that the board had a right to consider the bids from all standpoints, and not merely from the standpoint of the highest rate of interest offered by any particular bidder, and that an abuse of discretion in this respect is subj'ect to review in the courts.
    2. Municipal corporations — number op depositories. — Acts 1913, p. 48, § 21, providing that when a city depository is selected all city funds shall immediately be deposited therein, does not limit the number of depositories to one bank if in the sound discretion of the board more than one depository should be deemed best for the interest of the city; the board might advertise for bids .for one depository for all the funds or for bids for the various funds separately, but it could .not, after advertising for one depository for all the funds, apportion the funds among separate depositories.
    3. Municipal corporations — interest-bearing evidence op indebtedness. — Under .Const. 1874, art. 16, § 1, prohibiting any city from issuing interest-bearing evidences of indebtedness, a city can not make a binding contract by which it agrees to pay interest on its indebtedness.
    4. Contract — consideration partly illegal. — If any part of the entire consideration for a promise or any part of the entire promise be illegal, whether by statute or by the Constitution or from considerations of public policy, the whole contract is void.
    5. Contracts — illegality.—Where the lawful and unlawful parts of a contract can not be separated, so as to enforce the one and annul the other, it is an indivisible contract, and therefore null and void throughout.

      6. Municipal corporation — legality of contract with depository. — Where a contract by a city with a bank depository has for its consideration in part the rate of interest which the depository bank will charge the city interest for borrowed money, such a contract is entire, and not severable in its parts, and the whole contract is illegal and void.
    Appeal from Sebastian Chancery Court, Ft. Smith District; J. V. Bourland, Chancellor;
    affirmed.
    STATEMENT OE EAOTS.
    Appellees, describing themselves as owners of' real property and taxpayers of Fort Smith, Ark., brought separate suits in equity against appellants to prevent them from carrying out a contract whereby the City National Bank was designated, as a depository for the city and improvement district funds of the city of Fort Smith, for the period of two years.
    In their answer, it was claimed by appellants that the commissioners had the right under the statute to select a depository, and that they had selected the City National Bank.
    The cases were consolidated and tried together. While the record in this case is very lengthy, the issues presented by the pleadings and the facts may be stated in short form.
    The city of Fort Smith adopted the commission form of government, and the mayor and commissioners advertised under the provisions of the statute for bids from such banks as might desire to become the city depository. In response to such notice the various banks in the city of Fort Smith filed their bids. Each bid stated the rate of interest the bank would' pay for the funds of the city and the various improvement districts situated therein. After opening the bids it was found that no provision had been made for the city borrowing money. For the greater part of the year the citv was required to borrow large sums of money with which to meet the expenses of the citv government. In order to do this, it was the practice of the city to borrow money and pay interest on the money borrowed. Hence the mayor told the bidders that the city would have to consider loans and to obtain them from whatever bank was selected as a depository; that the city had to borrow considerably more money than it had to deposit; and that this was a consideration which would be expected of the depository. Bach bank was asked to consider this and amend its bid by stating at what rate of interest it would lend money to the city. The meeting was adjourned until the next day so that all the banks might have a chance to make bids under the notice as amended. Some of the banks came back and changed their bids and others did not.
    It was understood by all the parties concerned that the lending of money to the city by the depository would be a substantial consideration in selecting such depository. The banks in their bids adopted various rates of interest for the various funds under the control of the city and also for the money which it would lend the city. For instance, the First National Bank of Fort Smith bid a high rate of interest on the average daily •balances for all the funds of the city of Fort Smith and the improvement districts therein, but bid a higher rate for the money it would loan the city with which to carry on the city government than did the City National Bank. The mayor and commissioners, however, found that the difference (between the bids of the various banks and the City National Bank was very small on the various funds under the control of the city, and for the reason that the City National Bank offered a lower rate of interest on money to 'be borrowed by the city and because the city had to borrow more money than it deposited, the City National Bank was selected as the depository.
    The above facts are established by a decided preponderance of the evidence.
    The record also shows that the City National Bank had purchased the waterworks bonds, and that one of the considerations of the purchase was that the proceeds should remain in the hands of the bank until they were used in the construction of the waterworks.
    The chancellor found that the selection of the City National Bank as the depository of the city of Fort Smith for the ensuing two years under the statute was an abuse of discretion on the part of the mayor and commissioner of the city, and their action therefore invalid.
    The court further found that the funds of the waterworks district derived from the sale of the bonds purchased by the City National Bank should remain in the hands of said bank because the contract had been executed in part on 'both sides, and that no one of appellees, who were the plaintiffs in the court below, had offered to restore to the City National Bank the consideration moving to it from said waterworks district. It was therefore decreed that appellants be enjoined from entering into or carrying out a contract whereby the City National Bank should become the depository of the city of Fort Smith or any of the improvement districts of the city under the award made by the mayor and the commissioners to said bank.
    The court refused to direct the mayor and board of commissioners to select either of the other banks as the depository of the city on the bid filed by such bank.
    Both parties have duly prosecuted an appeal to this court.

      Fadjo Cravens, Cravens, Oglesby & Cravens and James B. McDonough, for appellants.
    1. In the matter of selecting a depository the law confers a discretionary power upon the board of commissioners, and before the court could grant the relief prayed for, the plaintiffs must both have alleged and proved an abuse of that discretion. Acts 1913, p. 80, 23, 24; 125 S. W. (Mo.) 1140; 227 S. W. (Tex.) 974 ; 229 S. W. 663; 94 Ark. 311.
    2. The courts will not enjoin public officers restraining them from the exercise of their discretionary powers. 94 Ark.' 422; 85 Id. 156; 226 S. AY. 758; 269 Fed. 712; 64 S. E. 1074; 183 111. App. 506; ,81 Kan. 153; 25 L. It. A. (N. S.) 228; 140 Pao. 1051.
    Where no abuse of discretion is shown, injunction .will not lie to control the act of a board or officer. 130 N. Y. S. 216; 234 U. S. 627. See also 69 So. 554; 182 S. AY. 29; 94 S. E. 229; 183 Pac. 134; 99 S. E. 119; 180 Pac. 229; 14 Cyc. 383.
    ■ 3. The interest rate alone does not control. Acts 1913, p. 80, supra; 227 S. W. 974.
    4. In determining the questions involved in this case the question whether or not the city lias power to pay interest on money borrowed, is not material. None of the plaintiffs are in a position to urge that question. See 94 Ark. 311.

      Daily $ Woods'for appellees.
    There can be no answer to the judgment of the trial court that the act of the defendants in declaring the City National Bank I he depository of the city and of each of the improvement districts, and in awarding to it the funds of the city and of said districts for the ensuing two years, was unwarranted, improvident and an abuse of discretion. Under the act, the only discretion vested in the commissioners is to pass upon the relative security of the banks. If, in their judgment, one of the banks is a stronger or a safer bank, they no doubt have the right to select such bank, even though it offers a. lower rate of interest; but this discretion must be exercised within reasonable limits. But the evidence, and the findings of the chancellor based thereon, show that the commissioners did not exercise a discretion within the meaning of the law, but acted arbitrarily and without warrant, and for reasons that were either arbitrary, capricious or illegal. Plaintiffs ’ suits are brought to prevent political favoritism in the handling of the funds of the city and of its various improvement districts. They ask that the commissioners he enjoined from letting a contract to the poorest bidder, and that each fund be awarded to the bank which was the highest bidder for that particular fund. They insist on what this court has declared the law to be in Grant County Bank v. McClellan, 112 Ark. 550, viz: “The whole theory and purpose of such legislation is to secure the highest returns for the use of public funds,” and, “that there should be competition and not favoritism.” See also 199 S. W. 250; 214 S. W. 528; 94 Ark. 311.
   Hart, J.

(after stating the facts). The city of Fort Smith adopted the commission form of government for cities of the first class. Under the statute a board of commissioners, consisting of the mayor and others, is the governing body of the city. The mayor and commissioners also constitute the board of improvement for all improvement districts existing or created in the city. The statute provides for the selection of a city depository for all the various funds under the control of the board of commissioners. Acts of 1913, p. 48.

The issues raised by this appeal depend upon the construction to be given to secs. 21 and 24 of the act.

Sec. 21 provides for the selection of a city depository, and is as follows:

“The board of commissioners shall advertise for proposals for the custody of city funds from any bank or trust company located in said city. The board shall advertise for sealed bids for keeping the said funds for a term of two years and until a new selection shall be made. The bank or trust company offering the best inducements as to interest and security shall be selected as such depository. The rate of interest allowed on average daily balances shall be stated in all bids. Other things being equal, that bank or trust company shall receive preference which allows the city the highest rate of interest. The board shall have the right to reject any and all bids. A bond shall be executed by the depository selected by the city in such sums as will equal double the amount of estimated largest deposit, conditioned that it will safely keep all funds deposited, and pay on presentation all vouchers drawn on it when the money is on deposit, with tlie sureties approved by' said board. Interest shall be computed on average daily balances, payable to the city monthly, and the minimum rate of interest accepted shall be two per cent, on average daily balances. The board shall not be held liable for loss of any funds by reason of the insolvency of said depository; provided said board has, in all respects, complied with the law relating thereto. "When a city depository is selected under the terms of this act, all city funds shall immediately be deposited therein. All moneys paid out shall be paid upon the voucher of the clerk of the city, countersigned by the mayor.”

Sec. 24 provides that the mayor and commissioners shall advertise for proposals for the custody of the funds for each improvement district, and reads in parts as follows :

“Sec. 24. The mayor and commissioners, as constituting the improvement board of such district or districts, shall advertise for proposals for the custody of the funds of each improvement district as provided in this act for the custody and deposit of city funds, and all the provisions of section 21 of this act as to city funds, so far as applicable, govern and apply to the deposit at interest of improvement district funds, but separate bonds shall be required in favor of and payable to each improvement district, respectively, to protect the funds of such district, and the accounts and deposits of each improvement district shall be kept separate by the depository selected.”

In construing the act it will first be necessary to determine whether there is an imperative duty upon the board of commissioners to let the contract for a depository to the highest bidder. In construing the statute as a whole, we have reached the conclusion that discretionary power is lodged in the board of commissioners in the matter of selecting a city depository.

It is true that § 21 provides that the contract shall be let to the bank offering the best inducements as to interest, and that, 'other things being equal, the bank shall have preference which allows the- city the highest rate of interest; and that the chief object of the section is to secure to the city the highest rate of interest obtainable for the funds under its control. It will be noted, however, that immediately following this the section provides that the board shall have the right to reject any and all bids. We are of the opinion, therefore, that there is a discretionary power in the board in determining the depository, and that an abuse of discretion in this respect is subject to review in the courts.

In Gaines v. Thompson, 7 Wall. U. S. 347, Mr. Justice Miller stated the general doctrine to be, “that an officer to whom public duties are confided by law is not subject to the control of the courts in the exercise of the judgment and discretion which the law reposes in him as a part of his official functions. Certain powers and duties are confided to those officers, and to them alone, and however the courts may, in ascertaining the rights of parties in suits properly before them, pass upon the legality of their acts, after the matter has once passed beyond their control, there exists no power in the courts, by any of its processes, to act upon the officer so as to interfere with the exercise of that judgment while the matter is properly before him for action. The reason for this is, that the law renoses this discretion in him for that occasion, and not in the courts.” See also Regan v. Iron County Court, (Mo.) 125 S. W. 1140; Donna Independent School Dist. v. First State Bank of Donna, (Tex. Civ. App.) 227 S. W. 974; Hurley v. Citizens’ Nat. Bank, (Tex. Civ. App.) 229 S. W. 663, and Hurley v. Camp, (Tex. Civ. App.) 234 S. W. 577.

Applying the fundamental rule of construction that an act must be construed so as to give force and effect to it as a whole, not overlooking, however, its purposes, we are of the opinion that a sound discretion is vested in the board of commissioners in selecting the depository. The board of commissioners had a right under the statute to consider the bids from all standpoints, and not merely from the standpoint of the highest rate of interest offered by any particular bidder.

We do not think that the word “depository” as used in the act means a single bank. It is true the concluding part of § 21 provides that when a city depository is selected, all city funds shall be immediately deposited therein. As said in State v. Martin, 60 Ark. 343, “a” is a prefix of vague meaning, and in the connection used is too indefinite to limit the number of depositories to one bank, if in the sound discretion of the board more than one depository should be deemed best for the interest of the city. The object of the statute is to adopt the depository plan of keeping the city funds to the end that the city may obtain the interest on the average daily balances and not to restrict the letting to one bank. It might be that no one bank was able to bid for all the funds or that it needed them in its business. The main fact is to let out the funds to some responsible bank or banks. Section 24 provides for separate bonds by the depository payable to each improvement district. The board of commissioners, if it saw fit, might advertise for bids for one depository for all the funds, or, if it was for the best interest of the city and the improvement districts, it might advertise for bids for the various funds separately. It could not, however, advertise for one depository for all the funds and then let the funds for a particular improvement district to a separate depository, because a bank had bid a higher rate for the funds of that particular district. In short, the board could not advertise for bids to be made of the various funds as one depository and then let contracts to different banks because some bank had bid more for the funds of a, particular district, when its bid as a whole was less than that of some other bank. The board in its discretion máy let the contract' for all the funds controlled by the city as a whole or it might separate them in the letting; bnt it must pursue whatever plan it adopts in its notice to the bidders. This view is at least in harmony with the spirit of the law.

"We now come to the question of whether there could be a legal contract for a city depository under the facts as presented by the record. After the bids had come in, the board announced to all the bidders that the city borrowed more money for the purpose of running the city government than it had to lend, and for that reason the bidders would be required to state not only the rate of interest they would pay for the various funds deposited by the city, but also the rate of interest at which they would lend money to the city. Some of the banks amended their bids in conformity with this requirement, and the bid of the City National Bank was accepted on that basis. That bank offered to lend money to the city at a lower rate of interest than the other bidders, and this was thought by the board of commissioners to offset the lower rate it would pay the city as interest on the funds deposited with it.

We are of the opinion that this rendered the contract illegal and void. Our Constitution has thrown a restraint around the State, county and municipal corporations in this State in this respect. Art. 16, § 1, of the Constitution of 1874, reads as follows:

“Sec. 1. Neither the State nor any city, county, town or other municipality in this State shall ever loan its credit for any purpose whatever; nor shall any county, city, town or municipality ever issue any interest-bearing evidences of indebtedness, except such bonds as may be authorized by law to provide for and secure the payment of the present existing indebtedness, and the State shall never issue any interest-bearing treasury warrants or scrip.”

This provision was evidently intended to; protect the people from disasters which might result from the abuse of the public credit. The court in construing the provision has held that a municipal corporation can not issue interest-bearing evidences of indebtedness. Forrest City v. Bank of Forrest City, 116 Ark. 377. IW would be equally true that it could not make a legal and binding contract by which it agreed to pay interest on. its indebtedness. Such -a contract would also come within the prohibition of the section of the Constitution.

It is well settled that if any part of the entire consideration for a promise or any part of an entire promise be illegal, whether by statute or by the Constitution or from considerations of public policy, the whole contract is void. Kuhn v. Buhl, (Pa.) Ann. Cas. 1917-D, p. 415, and cases cited; and Hazleton v. Sheckells, 202 U. S. 71.

"Where there are provisions in a contract for a compensation which is legal, still if they are blended with those which are forbidden, the whole is a unit and indivisible. The above is the language of Mr. Justice Swayne in Trist v. Child, 21 Wall. (U. S.) 441. The learned justice added that that which is bad destroys that which is good, and they perish together.

Where the lawful and unlawful parts of a contract can not be separated, so as to enforce the one and annul the other, it is an indivisible contract and therefore null and void throughout. Edwards v. Randle, 63 Ark. 318. And in that case the court quoted with approval the following:

“If any part of an indivisible promise, or any part of an indivisible consideration for a promise, is illegal, the whole is void.”

In the instant case the provisions of the contract are dependent upon each other and are not severable. The record shows that the hoard of commissioners considered equally the illegal as well as the legal parts of the bids in designating the City National Bank as the depository. All the bidders were required to state in their bids what rate of interest they would charge the city for money borrowed by it as a prerequisite to being allowed to make bids on the rate of interest they would pay the city for' the funds deposited (by it. The bidders considered what rate they would charge the city for borrowed money in arriving at the rate they would pay the city on the average daily deposits, and the board did likewise in designating the depository.

As we have already seen, an agreement between the city and the bank for the former to pay interest to the latter on borrowed money would be illegal and void. The contract was an entire one and not severable in its parts, and it follows that the whole contract was illegal and void.

The decree of the lower court proceeded upon the theory that there was an abuse of discretion upon the part of the board of commissioners. No bad motives are ascribed to the members of the board, and it seems that they acted for what they thought to be to the best interest of the city. This matter, however, is not presented here for review for the reason that we have held the contract to be illegal and void. Because the contract was illegal and void, the chancellor was right in enjoining the board of commissioners from selecting the City National Bank as depository for the city of Fort Smith. The chancellor was also right in refusing to direct the board of commissioners to appoint any of the other bidders as the city depository for the reason that the contract was let upon an illegal basis and the whole transaction was tainted with the illegal requirement that the bidders should specify in their bids the rate of interest at which they would lend money to the city of Fort Smith.

It appears from the record that the contract between the waterworks improvement district and the City National Bank has been for the most executed on both sides, and for that reason we need not consider it ány further than to say that the decree of the chancellor was correct.

From the views we have expressed, it results that the decree of the chancellor, as a whole, was correct, and it will be affirmed.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    Davis v. Kelly.
    Opinion delivered February 20, 1922.
    1. Carriers — duty to passenger — instruction.—While it is error to instruct the jury in effect that it is the duty of the railroad company to furnish a safe place to its passengers to alight from its train, instead of saying that it was its duty to exercise due care to that end, such error was not prejudicial where the undisputed evidence establishes liability for plaintiff’s injuries, as where the railroad company negligently stopped its train 100 feet beyond the station platform at a dangerous place, and thereby caused plaintiff to fall and receive the injuries complained of.
    2. Carriers — negligence toward debarking passengers. — Where a train was late and overran the platform, and a woman passenger weighing over 200 ponds protested against alighting at such place, but the brakeman assured her that she could alight safely and that he would assist her, and she stepped on the footstool, which was placed on slanting ground, so as to cause her to fall and sustain injuries, the carrier was liable.
    3. Carriers — negligence—instruction.—Where a passenger was injured in alighting from a train at a place beyond the station platform, the court did not err in refusing to instruct upon the theory that there was no failure to furnish proper stational facilities.
    4. Carriers — failure to stop at platform. — The fact that a train is late affords a carrier no excuse for failure to discharge its duty to stop at the station platform, so that passengers may alight in safety.
    5. Evidence — offer of compromise. — Where plaintiff wrote to the railroad company in regard to her personal injuries, and said “I prefer to settle this without a suit, and have instructed my lawyers to wait until I hear from you; otherwise suit will be entered for $500 damages,” this letter was an offer of compromise, and not binding on plaintiff as to the amount of damages.

      6. Damages — personal injuries. — A verdict of $3,000 in favor of plaintiff for personal injuries was not excessive where her knee was inflamed, she suffered much pain, was unaole to do her housework, limps slightly in walking, has trouble in going down steps and getting in a buggy, and where a doctor testifies that she was permanently injured and liable to have her knee dislocated.
    Appeal from Monroe Circuit Court, George W. Clark, Judge;
    affirmed.

      Daniel Upthegrove and Lamb <£ Frierson, for appellant.
    1. Instruction numbered 1 given by the court was erroneous. This suit is not based upon a failure to furnish a safe place to alight but on the failure to stop at a platform. As to station facilities, it is tlie duty of a carrier to exercise ordinary care on]3b 96 Ark. 311; 65 Id. 255; 90 Id. 378; 115 S. W. 640; 149 Pac. 1126. It is bound only to the same kind of care in assisting passengers to enter a car. 85 Ark. 117; 48 Id. 491; 141 Id. 378. The Cantrell ease, 37 Ark. 519, was a case of a passenger alighting from a moving train. There is a great distinction between such casos and such cases as passengers alighting from a train standing still. 118 Ark. 467.
    The above instruction w*as further erroneous in that it singled out the evidence relating to the train being* behind time and instructed the jury that that would not relieve the appellant from liability.
    2. The court in its instruction numbered 5 returns to the error in instruction 1 and states that the material allegation of the complaint is that the defendant failed to furnish her a safe place to alight. “Safe” implies practically an insurance. A carrier is not liable as an insurer. Thompson on Negligence, § 2679; 115 S. W. 640; 99 Ark. 366; 119 Id. 392.

      3. The verdict is excessive. 69 Ark. 402.

      Bogle S Sharp, for appellee.
    1. The court was right in giving instruction 1. It was based on the proof to the effect that the reason why the train was not pulled back to the station was -because it was behind time.
    Appellee had the right to allege and prove that the proximate ease of her injury was the failure to stop the train at the platform, and if she proved that by a preponderance of the evidence she was entitled to recover. 87 Ark. 582; 146 Id. 372. With respect to the degree of care, the case must stand or fall upon the question of whether or not the plaintiff was a passenger at the time she received the injury. If she was a passenger, ordinary care is not the test. 114 Ark. 56; 96 Id. 311.
    2. The verdict is not excessive, 104 Ark. 528; 99 Id. 537; 121 Id. 351; 317 Id. 329; 126 Id. 377.
   Smith, J.

Mrs. Kelly, the plaintiff below, was injured while alighting from one of appellant’s trains, and has recovered a judgment to compensate that injury in the sum of $3,000, from which is this appeal. No objections were made to any testimony offered at the trial, and all the instructions requested by the railroad company were given. The errors assigned for the reversal of the judgment are that the court erred in giving instructions, and that the verdict is excessive.

Appellant insists that the case presents a question of a failure to furnish proper station facilities, and not one of negligence in the operation of trains. The court below was not of that opinion, but submitted the case on the theory that — if plaintiff’s version of her injury were accepted as true — she was injured in the operation of a train, and the jury was told that the railroad would be liable for the consequences thereof, if the injury resulted from the failure of the railroad to exercise the high degree of care due a passenger in the operation of trains.

There would be no difficulty about this case but for the fact that, after giving instructions which, taken as a whole, correctly declared the law'of the case, the court, of its own motion, gave an oral instruction reading- as follows: “You are instructed that it was the duty of the defendant company to furnish the plaintiff, after she had become a passenger on one of its trains, a safe place to alight therefrom, and the fact that the defendant’s train may have been behind schedule would not relieve the defendant company from its duty, and if you find by a preponderance of the evidence that the defendant failed to furnish the plaintiff a safe place to alight from one of its trains, and' that such failure was the proximate cause of such injury, if any, sustained by the plaintiff, then it will be your duty under the law to return a verdict for the plaintiff.” To the giving of this instruction the special objection was made that “it makes the duty of furnishing a safe place apparently an absolute duty, instead of making it a test of what due care would require under the particular circumstances, and for the further reason that, in discussing the question of whether the train was behind schedule, it points out particular 'evidence and states its effect to the jury.”

The first objection to this instruction must be conceded to be correct; but we have concluded the error in giving it does not call for the reversal of the judgment, for the reason that, in our opinion, the undisputed evidence establishes liability for the plaintiff’s injury.

The undisputed testimony establishes the following facts: On the night of December 24,1919, Mrs. Kelly purchased a ticket at Hunter for Hillman, and became a passenger on one of appellant’s trains, which arrived at Hillman after midnight. The train was late and overran the platform provided for the use of passengers in entering and leaving trains a distance of from fifty to one hundred feet. There was some conflict in the testimony as to just what this distance was, but the testimony is undisputed that the train so far overran the platform that the platform was not available for the use of passengers. Mrs. Kelly was about forty-nine years old at the time of her injury, and weighed over two hundred pounds. When she arrived at the steps of the coach in which she was a passenger, she found the train had overrun the platform, and she expressed the fear that she could not safely aliglit from the train. The brakeman was present, and had placed the foot-stool, carried by him, beneath the step of the car, and he assured Mrs. Kelly that she could aliglit safely, and that he would assist her in doing so. A Mrs. Jennie Hale was also a passenger at the time, and preceded Mrs. Kelly in leaving the car. Mrs. Hale testified that “the condition of the ground at the place we alighted from the train was rolling, or slanting, a considerable grade there, a good sized dump.” Mrs. Hale was a younger and smaller woman, and, after getting off the train, she turned and called back, “Mrs. Kelly, don’t come off there, you will kill yourself.” Mrs. Kelly relied, however, on the brakeman’s assurance of safety and his promise of assistance and made the attempt, in fact, she appeared to have had no alternative except to remain on the train. The brakeman admitted that Mrs. Kelly spoke of his being too small a man to assist a large lady like herself, but he told her that by doing the best he could he thought he could help her off all right. The brakeman admitted the footstool was not level, and for that reason he put his foot in the hole of the stool, and hung his lantern on his arm so he could use both hands in preventing Mrs. Kelly from falling. The only witness called by appellant who had anything to do with the operation of the train was the brakeman, and he testified the engine of the train was in control of an extra engineer, and that the train would have pulled up to the platform if he had given the necessary signal, but that he did not do so for the reason that the train was late. Mrs. Kelly swung down from the step of the car until her foot rested on the foot-stool, when she released her hold on the handles of the car, whereupon the foot-stool tilted, and she stumbled from the stool, thereby wrenching her knee and sustaining the injury for which she sues.

We think this testimony makes a case of liability, not that it is negligent to stop a train where there is no platform for the use of passengers, but because there was a platform here which the passengers were not permitted to nse. There may he no such thing as an absolutely safe place for passengers to enter and leave trains, and for this reason the court erred in telling the jury, in the oral instruction, that the railroad was under the duty of furnishing a safe place; but the undisputed testimony shows that within less than a hundred feet of the place used for debarking there was a much safer place than the one used. The platform was a permanent structure; it was level; and there was no danger of its tilting. Moreover, the undisputed testimony shows that the distance from the lower step of the car to the footstool was at least eight inches greater than the distance would have been from the lower step of the car to the platform. The use of the platform gave reasonable assurance of safety, and the only reason stated by the brakeman for not pulling the train up to it was that the train was already late.

As we have said, the court was not in error in refusing to submit the case upon the theory that the plaintiff’s injury arose out of the company’s failure to furnish proper stational facilities, the measure of which duty is to exercise ordinary care to furnish reasonably safe facilities. That duty had been discharged; the company had such facility but did not use it.

In the case of Prescott & N. W. R. Co. v. Thomas, 114 Ark. 56, the contention was made that ordinary care is the requirement with respect to-a passenger getting on or off a train; but we there said: “But we have held otherwise in the ease of St. L. I. M. & S. R. Co. v. Woods, 96 Ark. 311, where it was sáid: ‘The higher degree of care is exacted only during the time in which the passenger has given himself wholly in charge of the carrier, while on the train or getting on or off, for then only is the passenger subjected to the peculiar hazards of that mode of travel against which the carrier must exercise the highest degree of skill and care.”

We think, in the discharge of this high degree of care due Mrs. Kelly while getting off the train, that the brakeman should not have required her to debark at a place where the probability of injury was certainly much greater than would have been the case had the platform been used; and the court did not err in telling the jury that the fact that the train was late afforded no excuse to the railroad for failing to discharge its duty to the plaintiff. As we have said, the oral instruction imposed a higher degree of care than the law requires; but we think this error does not calDfor the reversal of the judgment, for the reason that the undisputed testimony shows a failure to use the degree of care which the law does require.

The testimony is conflicting as to the extent of Mrs. Kelly’s injury, and on this phase of the case there was introduced by the appellant a letter from Mrs. Kelly, under date of April 14, 1920, in regard to a settlement of her claim for damages. In this letter she states that she had consulted three physicians to see if she was permanently crippled and she had waited before presenting her claim to see if she was, and that she had found that she was permanently crippled. She concludes this letter by saying: “I prefer to settle this without a suit, and have instructed my lawyer to wait until I hear from you, otherwise suit will be entered for $500 damages. ’ ’

It is conceded by learned counsel for the railroad that this letter is an offer of compromise, and is therefore not binding on Mrs. Kelly; but it is insisted that it furnishes a statement of Mrs. Kelly’s own estimate of her damages, made more than three months after her injury and after she had consulted three physicians and an attorney, and therefore furnishes conclusive evidence that the verdict for $3,000 is excessive. It is also true that the testimony shows that Mrs. Kelly has continued in her former employment — that of teaching— and that she has obtained an increase of salary since her injury.

We do not think, however, that this fact, nor the offer contained in the letter, is conclusive of the damage sustained. As is admitted, the letter was an offer of compromise, and the offer was not accepted. Mrs. Kelly was therefore in position to ask the jury to assess such damages as the testimony warranted. She testified that before her injury she had been able to do all her housework, and to walk to and from her school; but since her injury she has been compelled to hire much of the work done around her house, and had been compelled to buy a horse and buggy to drive to and from her school. Mrs. Kelly’s knee was inflamed for some days, and she says she suffered much pain, which she stated had not entirely subsided at the time of the trial, that she limps slightly in walking, and has trouble going down steps and getting in a buggy. Two doctors testified that Mrs. Kelly had so torn the ligaments of the knee joint that her injury was a permanent one, and that there was no possibility of her recovering from her injury. One of the physicians, after expressing the opinion that Mrs. Kelly’s injury was permanent, was asked: “What is likely to occur to her knee because of the rupture of this knee-joint?” He answered: “Well, the thickening of the synovial membrane will impair the service of the joint, the rupture of the ligaments losing control of the knee is likely to cause a looseness in the joint even to dislocation.” A neighbor testified that she had never noticed Mrs. Kelly limp, and there was other testimony tending to contradict Mrs. Kelly about the extent of her suffering immediately after her injury. But these were questions of fact for the jury, and, while the jury dealt liberally with Mrs. Kelly, we do not think the verdict is excessive to the extent that it can be said to be unsupported by the testimony.

No prejudicial error appearing, the judgment is affirmed.


author: Humphreys, J. McCulloci-i, C. J.,

text:
    Delony v. Dillard.
    Opinion delivered February 27, 1922.
    1. Banks and banking — failure to file certificate. — Crawford & Moses’ Dig., § 1715, providing that the president and secretary of every domestic corporation shall file a certificate with the county clerk annually showing the condition of its affairs, was not, as far as banks are concerned, superseded by the banking act (Crawford & Moses’ Dig., §§ 665-728).
    2. Banks and banking — duty of commissioner to sue officers of insolvent bank. — In view of banking act, (Crawford & Moses’ Dig., § 719), requiring the Bank Commissioner to take possession of all the property of an insolvent bank and collect all debts due it, a depositor of an insolvent bank was not authorized to sue its president and secretary for failure to file the certificate required by Crawford & Moses’ Dig., § 1715, until the Bank Commissioner has been requested to bring such suit, and has failed to do so.
    Appeal from Howard Circuit Court; James S. Steel, Judge;
    affirmed.

      W. C. Rodgers, for appellant.
    1. Repeals by implication are never favored. 112 Ark. 437; 92 Id. 600; 41 Id. 149. There is no such irreconcilable conflict between § 1715, C. & M. Digest, and the banking act of 1913, chap. 15, C. & M. Digest, as to justify holding the latter as having repealed the former by implication.
    2. The liability of the president of a corporation for his failure to file the certificate required by law, is a personal liability upon implied contract. 68 Ark. 433. The right of a creditor to sue is the same whether the corporation is solvent or insolvent, and exists whether other creditors, having a like claim, wish to press their demands or not. The Bank Commissioner has not the sole right, nor indeed the right at all, to sue in such case. 91 Ark. 231; 112 Ark. 437; 58 Ark. 407.

      W. P. Feazel, for appellee.
    The banking act of March 3, 1913, repeals § 1715, C. & M. Digest, because it covers the entire field anew of banking corporations, and was intended to supersede tbe old statute requiring annual reports, 'so far as banking corporations are concerned. 68 Ark. 131; 118 Id. 375; 142 Id. 91; 76 Id. 32; 120 Id. 530; 92 Id. 79; 41 Id. 149; Creamery Package Mfq. Co. v. Wilhite, 149 Ark. 576.
    2. If -a liability exists on the part of the appellee for failure to file the annual report required by § 1715, C. & M. Digest, it is a liability in favor of all the creditors of the bank whose debts were contracted during such neglect, and no one creditor has the hight to pursue the negligent officer and appropriate his property to the payment of his debt or judgment to the exclusion of other creditors. The Bank Commissioner alone is therefore authorized to bring the suit. Creamery Package Mfg. Co. v. Wilhite, 149 Ark. 576.
   Humphreys, J.

This suit was instituted in the Howard Circuit Court by appellant, a depositor in the Bank of Mineral Springs, after it failed and was taken over by the State Bank Commissioner on the 27th day of May, 1921, against appellee, who was the former president of the bank, to recover $1,312.64 and interest, which represented his deposit in the bank at the time it failed, on the ground that appellee, as president of the bank, failed to file a certificate at the time and in the manner required by section 1715 of Crawford & Moses’ Digest, showing the condition of the affairs of such bank. Appellee filed an answer, admitting that on the first day of September, 1920, the bank was indebted to appellant in the sum claimed on account of deposits theretofore made; that he was the president of the bank at the time and thereafter until it was taken over by the Bank Commissioner in May, 1921; that he did not file the certificate required by section 1715 of Crawford & Moses’ Digest, but denied any liability by reason of his failure to do so, alleging, first, that said act was repealed by the banking act of this State which took effect January 1, 1914, (Crawford & Moses’ Digest, §§ 665 to 728, inclusive), and, second, that if liable, the right of action passed to the Bank Commissioner alone for the benefit of all creditors who desired to prosecute the action when the bank became insolvent and was taken over by the Bank Commissioner.

The cause was submitted to the court, sitting as a jury, upon the pleadings and evidence, which resulted in a finding that appellant had no right to maintain the suit until the Bank Commissioner refused to bring the same, and in a judgment that the action abate without prejudice, from which finding and judgment is this appeal.

The record reveals that the Bank of Mineral Springs was organized under the laws of Arkansas prior to the year 1910. When organized, appellee became president, and continued to act in that capacity until the bank became insolvent and passed into the hands of the Bank Commissioner. He was acting in that capacity on the 1st day of January, 1920, when appellant first made a deposit in the bank. Neither appellant, as president, nor the secretary of the corporation filed a certificate showing the condition of the affairs of the bank on the first day of January or July of any year after January 1, 1920, in the manner' provided by section 1715 of Crawford & Moses’ Digest. When the bank failed and passed into the hands of the Bank Commissioner in May, 1921, it owed appellant the amount claimed, as well as a large amount to other depositors.

The first question presented for determination on this appeal is whether section 1715 of Crawford & Moses’ Digest, imposing liability on a bank president in favor of a depositor for failure to file a certificate with the county clerk of the county in which the bank is domiciled on or before the 15th of February or August, showing the condition of the affairs of the -bank on the first day of January or July of each year was repealed by the general •banking act of this State, which took effect January 1, 1914. Appellee’s insistence is that the former act was superseded by the latter because a repugnancy existed between the two statutes requiring the officers to make reports of the condition of the bank. We are unable to discover any repugnancy. The general banking law requires the banks in the State to make at least two reports annually to the Bank Commissioner, and as many additional reports as he may demand, in greater detail than is required of a president and secretary of a bank under section 1715 of Crawford & Moses’ Digest. The general banking law also requires that a thorough examination be made of each bank in the State at least once a year, and authorizes the examiner to examine any officer, agent or employee under oath touching the affairs of the bank. The evident purpose in the general banking law of requiring the banks to make reports to the Bank Commissioner, and in authorizing him and his examiners to examine the officers, agents and employees of banks under oath touching the condition of their affairs, was to enable him to discharge his duties in supervising them. The report required to be made by the president and secretary of a bank under section 1715 of Crawford & Moses’ Digest is for the special protection of any one desiring to do business with the bank. One desiring to do business 'with a local bank would have the opportunity of going to the county clerk’s office and ascertaining, at any time during the year, the conditiou of the bank on the first day of January or July, which would be much more convenient than to go to Little Rock to inspect the report filed with the Bank Commissioner. The fact that the reports required under the two acts serve different purposes argues that there was no intention on the part of the Legislature to repeal the former act by the enactment of the latter. Again, the general banking law of the State imposed a liability upon the directors of a bank for failure to remove an officer found by the Commissioner to be dishonest, reckless or incompetent. Crawford & Moses’ Digest, § 683. It was contended in the case of Creamery Package Mfg. Co. v. Wilhite, 149 Ark. 576, that this act repealed, by implication, any preexisting liability of directors br' other( officers of banks for negligent mismanagement of the affairs thereof and absolved them from any liability for neglect of their duties save for failing to discharge officers found by the Commissioner to be dishonest, negligent or incompetent. This court ruled that the general banking law enlarged, rather than limited, the liability of directors and officers of banks for negligent mismanagement. We can see no good reason why the general banking law should be construed to enlarge the liability against directors and officers in one instance for neglect and to absolve officers from liability for neglect in other particulars.

The last insistence of appellant is that the court erred in holding that he could not institute and prosecute this suit after the corporation became insolvent. It is argued that, under § 1715 of 'Crawford & Moses’ Digest, the right was accorded to a creditor or depositor to sue the president of the bank upon his failure to file the required certificate with the county clerk immediately after the bank became indebted to him, irrespective of the solvency or insolvency of the bank. In other words, the insistence is made that the liability fixed by the statute is personal to the creditor, and not a liability in favor of the corporation. This would be true if it were not for the general banking act in this State which took effect on the first day of January, 1914. The purpose and intent of that act, however, was and is that in case of the insolvency of the bank the Bank Commissioner of the State should take immediate charge of the failing bank and wind up all the affairs thereof under the supervision of the chancery court. The general banking act was given this interpretation in the case of Creamery Package Mfg. Co. v. Wilhite, supra. In that case this court said: “The purpose of this suit by the three depositors who have brought it is to apply to the discharge and satisfaction of the bank’s indebtedness to them the liability of the directors for the negligent mismanagement of the bank’s affairs; and this without any allegation that the Commissioner had been requested to sue and had failed to do so. This they cannot do.” Applying the rule thus announced to the instant case, appellant should have requested the Bank Commissioner to bring the suit for his benefit, and the Bank Commissioner should have brought it for appellant and other creditors of the bank to whom the president was liable, and who desired him to do so.

No error appearing, the judgment is affirmed.

McCulloci-i, C. J.,

(concurring). I think that the judgment should be affirmed, not for the reasons stated in the opinion of the majority, but on the ground that there has been a repeal, by implication, of the statute under which liability of appellee is sought to be imposed. I disagree with each of the conclusions of law announced in the opinion of the majority as to the repeal of the statute and the right of á creditor to maintain an action in his own behalf

On the first question I can add but little to what was said in my dissenting opinion in the recent case of Creamery Packing Co. v. Wilhite, 149 Ark. 576, except to say that the present case presents much stronger reasons for holding that there has been an implied repeal of the statute than in the-former case, where the point was whether or not there was a repeal of the statute imposing liability for mismanagement or neglect.

In the present case we have under consideration the question of repeal of the old statute which imposed a duty with respect to publicity concerning the affairs of all corporations, and the question is whether or not the duty thereby imposed has, so far as concerns banking corporations, been swallowed up in the new and more comprehensive duties imposed by the banking statute. It is a case of implied repeal by substitution and not by-reason of repugnance. It falls within the rule announced in a recent case as follows: “Where the later of two statutes covers tlie whole subject-matter of the former, and it is evident that the Legislature intended it as a substitute, the prior act will be held to have been repealed, although there may be no express words to that effect, and there be in the old act provisions not in the new.” Sanderson v. Williams, 142 Ark. 91.

The old statute was a part of the act of April 12, 1869, and applied to all business corporations. It required the president and secretary of every corporation to annually make and file with the county clerk a statement of the affairs of the corporation showing the amount of the capital stock actually paid in, the value of the real estate and personal property, the cash value of all credits and the amount of debts and the name and number of shares of each stockholder. The statute imposed on the president and secretary liability, on account of failure or neglect to file such report, for all debts of the “corporation contracted during the period of any such neglect or refusal.”

The banking statute provides that the Bank Commissioner shall at least twice a year call for a report from each bank, showing the amount of its paid-up capital, surplus, net and undivided profits, deposits, bills payable or bills rediscounted and all other liabilities, the amount loaned on real estate, notes, bills of exchange, overdrafts, bonds and other securities, the amount invested in real estate for banking premises and other real estate, cash on hand and on deposit in other banks subject to check, “together with all other information that the Commissioner may require, ’ ’ The Bank Commissioner is authorized to make all necessary rules and regulations to carry out the purposes of the statute; and a section of the statute (Crawford & Moses’ Digest, sec. 707) requires publication of the reports made to the Commissioner. We must take notice of the notorious custom, pursuant to the requirement of the Bank Commissioner, of publishing; these reports in local newspapers where the banks are doing; business — and this was reasonably within the contemplation of the framers of the statute when they gave authority to the Bank Commissioner to make regulations. Now, what more can be thought of in the way of publicity of the affairs and financial condition of banks? It far exceeds in effectiveness the requirements of the old statute. It necessarily supersedes the old statute so far as the banking business is concerned.

This is the construction placed upon the statute by the Bank Commissioner under an official opinion given by the Attorney General.

The banking statute was approved by the Governor on March 3, 1913, and by its terms went into effect on January 1,1914, and the opinion of the Attorney General, which was rendered on January 20,1914, and immediately acted upon by the Bank Commissioner in its control over the banks, constituted substantially a contemporaneous interpretation of the new statute. The Attorney General in his opinion said:

“Act 113, approved March 3, 1913, creating the State Bank department, seems to cover the whole business of the creation and operation of banks. Our Supreme Court has held that where a subsequent act covers the whole subject on which it legislates, it repeals all former laws on the same subject. Inasmuch as the banking act referred to above requires the banks to file two or more statements every year with the State Bank Commissioner and covers the whole subject of banking, it seems to me that the law as contained in section 848 of Kirby’s Digest, is repealed so far as banking corporations are concerned. Of course, it is still in force as to all other corporations.” Report of Attorney General Moose, 1913-14, p. 186.

It seems equally clear to me that, if the old statute has not been superseded by the later banking statute with respect to this requirement, each creditor has an independent right of action against the officers of the bank for failure to file the required certificate with the county clerk — a creditor whose debt was contracted during the period of delinquency. It is not a liability to the bank itself for which a receiver may sue, but is a primary liability to the individual creditor who has suffered loss by reason of the delinquency. Beekman Lumber Co. v. Ahern, 75 Ark. 107; Jones v. Harris, 90 Ark. 51; Steele v. Hughes, 104 Ark. 517.

I think the rule announced in Creamery Packing Co. v. Wilhite, supra, is not applicable, for that decision was based on the statute which created liability for negligence of the directors in the management of the bank, and the loss which resulted therefrom was common to all the creditors in proportion to their claims. It is different with the statute now under consideration, for that only imposes liability in favor óf a particular creditor whose debt was contracted during the period of delinquency. The fact that one or more creditors who have suffered loss may by diligence sue and 'recover judgment and exhaust the assets of the delinquent officers to the exclusion of the opportunities of others who may' sue later, affords no reason why the receiver should sue for all, instead of each creditor suing for himself. This is true of any collector’s suit, and affords no reason why the first who sues should not reap the reward.

Mr. Justice "Wood concurs in these views.


text:
    Rogers v. Atkinson.
    Opinion delivered February 20, 1922.
    Interest — amount op verdict. — Where it was an undisputed fact that, if a party is entitled to a verdict, he was entitled also to the interest, as in the ease of a liquidated demand, and the jury brings in a verdict for the principal sum without mentioning interest, the court should add interest to the amount of the verdict in its judgment.
    Appeal from .Saline Circuit Court; W. H. Evans, Judge;
    modified.

      J. 8. TJtley, for appellant.
    If the payment of $8.50 was made on April 18, 1918, the action on the note was not barred, notwithstanding the statute of limitations. 5 Ark. 551; 19 Ark. 692; 20 Ark. 171; 97 Ark. 217; 92 Ark. 245; 75 Ark. 603; 99 Ark. 212.
    The jury having found in favor of the plaintiff for the amount of the note, he was also entitled to interest on same. 77 Ark. 234; 100 Ark. 395.
   Smith, J.

Appellant sued to recover on a note payable to his order for the sum of $250, with interest at ten per cent, per annum from date until paid. The note was dated March 18, 1915, and the shit was not commenced until January 31, 1921, and the defense interposed was that the cause of action was barred by the statute of limitations. It was alleged by the plaintiff, however, that a payment of $8.50 had been made on the note on April 18, 1918. This payment was denied, and the cause was tried on that issue. The instructions told the jury the verdict should be for the defendant unless they found this payment had been made, but to find for the plaintiff if they found the payment had been made; but there was nothing in the instructions on the question of interest, although the plaintiff prayed judgment in Ms complaint for the amount of the note and interest.

The jury returned the following veridct: “We, the jury, find for the plaintiff in the sum of $250,” and a judgment was entered on the day of trial for that amount. Later in the term plaintiff filed a motion for a new trial upon the ground that “the court erred in receiving the jury’s verdict for the plaintiff in the sum of $250, and erred in not directing the jury, after the return of said verdict and before the said jury was discharged, to return to the jury-room and include in their verdict the interest on the note sued on in this case.”

It does not appear that plaintiff asked the court to direct the jury to add interest if the verdict was for the plaintiff; hut the right to recover interest follows as a matter of law, once the right to recover on the note itself is established.

In a note to the case of Minot v. Boston, 201 Mass. 10, 86 N. E. 783, 25 L. R. A. (N. S.) 311, it is said: “By the weight of authority, when it is undisputed that, if a party is entitled to a verdict, he is entitled to interest, and the jury brings in a verdict for the principal sum without mentioning interest, and this is a mere matter of computation, the court may correct the verdict by adding- interest. (Cases cited). Or may render judgment with the addition of the interest, without correcting the verdict. (Cases cited.)”

The note to the case of St. Louis, El Reno & Western Ry. Co. v. Oliver, 37 Okla. 589, 10 A. & E. Ann. Cases, 748, reads as follows: “Where the successful party to an action is legally entitled to interest, it is an incident of the verdict establishing his claim, and, in case the jury fail to- award interest, the court in rendering judgment may, if the amount of interest is ascertainable by mathematical calculation, add such amount to the verdict.” A number of cases are-there cited which support the text quoted.

The case of Southern Surety Co. v. Barham, 133 Ark. 220, was a suit on a policy of accident insurance. There was a verdict for the plaintiff, but the jury failed to add interest to the amount found due, and the.court at first rendered judgment only for the amount specified in- the verdict, but a few days later, and during the same term, the court amended the judgment so as to include the interest. This action was assigned as error in the motion for a new trial; but we there said: “The court was cor: rect in adding the interest to the judgment for the reason that the policy bore interest after a certain period running from date of the proofs of loss. Unlike the case of McDonough v. Williams, 86 Ark. 608, which is- relied on 'by appellant and which, involved the question of interest on an unliquidated demand, the court had before it in this case the question of interest on a. matured liquidated demand, and it was correct to add interest, even though the jury had failed to do so.”

It follows therefore that, as the plaintiff was entitled, as a matter of law, to the interest on his note, and the ascertainment of this interest is a mere matter of calculation, the judgment of the court below must be so modified as to include the interest; and it is so ordered.


author: Humphreys, J. Hart, J.,

text:
    Payne v. Road Improvement District No. 1.
    Opinion delivered February 20, 1922.
    1. Appeal and' ¡error — remand of cause — authority of trial court. — Where the Supreme Court, in a former appeal herein, , ruled that the Legislature had power to include appellant’s lands in a road district, and to authorize their assessment, notwithstanding they had previously been exempted by the county court organizing the district under the general laws, and the Supreme Court remanded the cause to the circuit court for further proceedings, that court in fixing the assessment had no authority to find that the lands were not benefited on account of the proposed improvement, and such finding must be treated as surplusage.
    2. Appeal and error — remand of cause. — Where the Legislature directed certain lands to be included within an improvement district, as benefited thereby, and at a subsequent session directed that the lands be excluded from the district, and the attention of the trial court does not seem to have been called to the later act, the cause will be remanded to the trial court to ascertain whether intervening rights accrued during the period wherein the lands were included within the district by the prior act.
    Appeal from Howard Circuit 'Court; A. P. Steel, special Judge;
    affirmed.

      W. G. Rodgers, for appellant.
    A bill of exceptions and motion for new trial were unnecessary. 68 Ark. 180; 100 Ark. 515; 105 Ark. 1.

      The Legislature cannot take from one the right of his day in court. Const. 1874, art. 2, sec. 13. The right of property is higher than any constitutional sanction, and private property cannot be taken, appropriated or damaged for public use, without just compensation. Const. 1874 art. 2, sec. 22.
    Special assessments for local improvements find their only justification in the peculiar and special benefits which they bestow on the particular property assessed. 119 Ark. 188; 86 Ark. 1; 69 Ark. 68.
    It is always presumed that the court’s finding of fact is based on evidence, even in the absence of a bill of exceptions. 78 Ark. 198.
    The district had no authority over the lands in question. Act 594, Special Acts 1921, p. 1169; 41 Ark. 421; 5 Wall. 531.

      Epperson & Jackson, for appellee.
    The contract was entered into and the bonds sold under the terms of act 285 of the extraordinary session of 1920, therefore special act 594 of the Acts of 1921 was a plain impairment of the obligations of the contract, and therefore void. Western Randolph County Road Improvement District v. Clifford, 150 Ark. 94.
   Humphreys, J.

This is the second appeal in this case. One purpose of the first appeal was to test the question of whether the south half of sections 8, 9 and 10 and all of sections 14, 15, 16, 17 and 18, township 8 south, range 28 west, in the county of Howard, were subject to assessment for benefits in Road Improvement District No. 1, in Howard County, Arkansas. The trial court, in the first trial, held that it was not within the power of the Legislature to include said lands in the road improvement district and to authorizé their assessment for benefits after they had been exempted by the county court organizing said district under the general laws of the State. This court ruled, on the former appeal, that in the reorganization of the district by legislative enactment the Legislature had power to include the lands in the district and to authorize their assessment, notwithstanding the fact that they had been exempted by the county court organizing the district. This 'branch of the case was therefore remanded to the circuit court with directions to assess said lands according to the benefits to be received by them from said improvement. For a full statement of the case and ruling of this court on the former appeal see Payne v. Road Improvement District No. 1, 149 Ark. 491.

On remand of the case the circuit court made a finding that the amount of the assessments to be charged against appellants’ lands was the only question for the circuit court to determine, as there had been a legislative determination that the lands were benefited. The court then found that five per cent, of the assessed valuation of the lands was a reasonable assessment of benefits to be derived from the improvements, and ordered and adjudged an assessment of benefits in that amount against the lands. The court also found that, according to the weight of the evidence, the lands were not benefited at all on account of the contemplated improvements. Appellants have prosecuted an appeal to this court from that judgment.

It is contended by appellants that the judgment does not pursue the findings of the court, and for that reason should be reversed. The judgment does conform to the finding of the court upon the issue determined by it. The cause was remanded upon the former appeal for the trial court to determine the amount of benefits to be derived by the lands on account of the contemplated improvements, the Legislature theretofore having determined that benefits did and would accrue to said lands on account of said improvements. The findings made by the court within the issues authorized the entry of the judgment. The findings without the issue were unauthorized by the mandate, and properly had no place in the case. They must therefore be treated as surplusage.

Act No. 594 of tlie General Assembly of 1921 has been called to the attention of this court for the first time in the progress of this case, so far as appears from the record before us. This cause was brought to us-without a bill of exceptions, and there is nothing in the record showing that the attention of the- trial court was called to this statute. This statute excluded the lands in controversy from the district, and consequently exempted them from the assessment of benefits on account of improvements in the district, provided, of course, the act did not impair the obligations of contracts entered into during the interim between the inclusion and the exclusion of the lands in the district by legislative’ enactment. This is an issue, according to the record, that was not presented to the court below, and will not be determined by this court on appeal. This is a matter of assessment of benefits against the lands only, and appellants will not lose any rights to which they are entitled on account of their lands being exempted by act 594, Acts of tire General Assembly of 1921, if no intervening rights accrued during the period their lands were included within the district by legislative enactment, as they can, in that event, interpose said act against the enforcement of the assessment.

No error appearing, the judgment is affirmed.

Hart, J.,

(dissenting). On former appeal I dissented on the ground that it was not within the power of the Legislature to set aside the judgment of the county court that the lands were not benefited, and to authorize the collection of assessments which a court of competent jurisdiction had declared to be illegal and void, and from which judgment no appeal had been taken.

The constitutional principle involved is that rights of property once vested, or liability or want of liability once established, by judicial decision, final between the parties, shall not afterwards be disturbed, or the controversy opened by mere legislative enactment. Searcy v. Turnpike Co., 79 Ind. 274; Lancaster v. Barr, 25 Wis. 560; Taylor v. Place, 4 R. I. 324, and Richards v. Rote, 68 Pa. St. 248.

In Denny v. Matton, 2 Allen (Mass.) 361, after saying that the right to try anew facts which have been determined by a judgment or decree, is a judicial and not a 'legislative function, Bigelow, C. J., said: “A fortiori, an act of the Legislature cannot set aside or annul judgments or degrees. This is the highest exercise of judicial authority. Lord Coke calls judgment and execution the ‘fruit of the law.’ To vest in the Legislature the power to take them away, or to impair their effect on the rights of the parties, would be to deprive the judiciary of its most essential prerogative. It could then no longer finally adjudicate and determine the rights of litigants. The will of the Legislature would be submitted in the place of fixed rules and established principles, by which alone judicial tribunals can be governed. The power to correct errors and to revise and reverse judgments, which in the strictest sense of the word has always been essentially judicial, would be transferred to the Legislative branch of the government, even to the extent of controlling the final decrees of the tribunal of last resort. It is obvious that such an exercise of authority would lead to the entire destruction of the order and harmony of our system of government, and to a manifest infraction of one of its fundamental principles.”

These and many other authorities, in my judgment, sustain the dissenting views expressed by Judge Wood and myself on the former appeal. I call particular attention to the principle on this appeal, not for the purpose of emphasizing my dissent so much as for illustrative purposes. For instance, on the former appeal the court held that the legislative act which had the effect to restore the assessment on the land in question made by the board of assessors was a valid enactment, notwithstanding the final judgment of the county court holding it invalid. Now it may be that the Legislature of 1921 took the same view of the facts as the county court had previously done, and thought that the lands in question would not be benefited by the improvement, and on that account passed act 591 excluding them from the district. Or the Legislature of 1921 may have adopted the view of the law expressed by the dissenting judges and have passed act 591 to cure the illegality of the legislative act of 1919. In any event, if the Legislature of 1919 had the power to put the lands back in the district and reassess them after the judgment of the county court taking them out, certainly the Legislature of 1921 could take them out again, if no vested rights had accrued in the meantime. So far as the record before us is concerned, the lands in question are not in the district, and, if they are not, the landowners should not be put to the expense of resisting an illegal assessment for errors and irregularities, and then wait until a lien for the assessments was attempted to be asserted against their lands before they could raise the question that their lands had been taken out of the district by an act of the Legislature. If their lands are not in the district, the board of assessors had no right to assess them.


author: Humphreys, J.

text:
    Baxter v. Duvall.
    Opinion delivered February 20, 1922.
    1. Trial — transfer op cause — effect.—Though a case appealed from the probate court to the circuit court cannot properly be transferred to the chancery court, yet where a case so appealed might properly have been brought originally in the chancery court, and no objection to the transfer was made, it will be treated on appeal as if the case had been withdrawn or dismissed in the circuit court and then filed in the chancery court.
    2. Appeal and error — finding of chancellor. — A finding of the chancellor that a surrender by a widow of the interest of herself and her minor children was procured by fraud and without consideration held sustained by the evidence.
    Appeal from Pope Chancery Court; Jordan Sellers, Chancellor;
    affirmed.

      Hays é Ward, for appellant.
    Appellee knew her rights, and gave her reasons for not insisting upon them to the fullest extent. There was no fraud in the procurement of the probate court order, but the transaction was in the nature of a family settlement, which are favored by courts of equity. 2 Pomeroy’s Equity Juris, sec. 850 (4th Ed.);. 98 Ark. 93.
    Appellee has not discharged the burden of proof resting upon her.
    This case is distinguished from that in 75 Ark. 240, as there was no mutual mistake as to the rights of the widow, and the further fact that here there has been a complete performance.

      J. T. Bulloch, for appellee.
    There was no consideration for the purported release signed by appellee. It was signed through ignorance of her rights.
    Family settlements are favored where matters are in dispute. There was no dispute here, as the law fixed the dower of appellee. Sec. 3544, C. & M. Digest.
   Humphreys, J.

Or. W. Duvall died intestate at his home in Pope County, Arkansas, on the 5th day of February, 1920, leaving him surviving his widow, Florence Duvall, and their two minor children, Grlenn and Evelyn, who are. the appellees herein; and seven children by his first wife, who are the appellants herein. Gr. W. Duvall died the owner of personal property afterwards appraised at $2,893, and was seized and possessed of 240 acres of land, 160 acres of which was upland and 80 acres creek land. These tracts were' a quarter of a mile apart. He and his family resided upon the 160-acre tract. The main improvements, including the dwelling house, were upon the west half of the 160-acre tract, a proper description of which is the west half of the northwest quarter of section 22, township 8 north, range 19 west, in said county. R. T. Duvall, a sqn by the first marriage, was appointed administrator of the estate. Florence Duvall was appointed guardian of the two minor children, Glenn and Evelyn Duvall.

On the 13th day of April, 1920, an order was procured from the probate court of said county, in substance as follows: Personal property of the value of $861.90 was adjudged to the widow and minor children and the remaining personal property was adjudged to the administrator free of any claim or demand of Florence Duvall as surviving widow of G. W. Duvall, deceased. The west half of the 160-acre tract of land was set apart and assigned to the widow and two minor children as their homestead and in full of the dower rights of the widow in the other real estate. The following document was made the basis for the aforesaid order:

“Moreland, Arkansas, March 29, 1920. To the Hon. Probate Court of Pope County, Arkansas: I, Florence Duvall, widow of G. W. Duvall, deceased, most respectfully ask that you set apart the following as my interest in said estate, and if the said request is granted, I relinquish to the children of my late husband all other property belonging to said estate. See list on next page. Personal property: One black horse, 4 years old, valued at $175; one mare, valued at $45; one cow, valued at $40; one heifer, valued at $20; one combination planter, valued at $15; three hogs, worth $45; balance of lard and meat, valued at $51.90. Total $411.90. Also the property listed by the appraisers to me; also, life dower and portion of the following real estate, same to be set apart as my homestead for life, and at my death to descend to the children of my late husband, G. W. Duvall, deceased; also my minor children, Glenn and Evelyn Duvall. (Signed) Mrs. G. W. Duvall.”

An appeal from the order aforesaid was prosecuted by appellees to the circuit court of Pope County. On August 12, 1920, this suit was instituted by appellees, Florence Duvall and her two minor children, Glenn and Evelyn Duvall, against the appellants, Mollie Baxter, B. Y. Duvall, F. M. Duvall, E. H. Duvall, Nora Grayham, Nannie Brown, and Ellis H. Duvall, children of G. W. Duvall, deceased, in the chancery court of said county to cancel the document made the basis of the order in the probate court, on the alleged grounds, first, that it was without consideration to support it; and, second, that it was obtained through the fraudulent misrepresentations of the administrator. Also for the recovery of rents and profits due her in her individual capacity and as guardian for her minor children, and the balance due her on account of her dower interest in the personal estate. An answer was filed by appellants, denying the material allegations of the bill. By consent of all the parties, and without objection of appellants in the court below or in this court on appeal, the appeal from the order of the probate court to the circuit court was transferred, at the November term of said circuit court, to the chancery court of Pope County and consolidated with the chancery suit for cancellation of the contract made the basis of the order of the probate court, and submitted to the chancery court, as a consolidated case, upon the pleadings and evidence, which resulted in a decree canceling the purported agreement made the basis for the order in the probate court upon the ground that it was without consideration and a fraud upon the rights of Florence Duvall and her two minor children in the estate of the deceased, and for $552.43 in favor of Florence Duvall against the administrator for the balance due her on account of dower in said estate and for a homestead interest of the widow and minors in the real estate and the widow’s dower in the other lands, in accordance with the statutes of this State, together with rents thereon. Commissioners were appointed to set aside the homestead and dower interests in the lands and to ascertain the amount of rents due the widow and minor children, and to report, from which decree is this appeal.

It will be observed in tbe statement of tbe proceedings detailed above that the proceeding for the assignment of dower pending in the circuit court on appeal from the probate court was transferred from the circuit court to the chancery court and consolidated with the suit for cancellation of the instrument made the basis of the probate order without objection, and by and with the consent of all parties. The transfer was erroneous, because, under the statute authorizing transfer of causes, only such causes as originate in the circuit court can be transferred to the chancery court. McLain v. Brewington, 138 Ark. 157. The subject-matter of the suit filed in the chancery court could have been interposed in the circuit court as a defense to the action for the assignment of dower pending in that court on appeal from the probate court. Chancery courts have concurrent jurisdiction with probate courts in matters of assignment of dower. Under these circumstances, we see no reason why, with the consent of the parties in both proceedings, the proceeding could not have been withdrawn or dismissed in the circuit court, and filed in the nature of an amendment to the suit in chancery. The parties did not object, but consented, to the transfer. So we have concluded to treat their action as tantamount to a withdrawal of the proceedings in the circuit court and the filing of same by way of amendment to the suit pending in the chancery court.

Appellants’ only insistence for reversal of the decree is that it is contrary to the weight or preponderance of the evidence. The testimony reflects that G-. W. Duvall died intestate, owning personal property valued at $2,893, and 240 acres of real estate, valued at $12,-000, and that there was no indebtedness against the estate. Under the statutes of this State the widow was entitled to one-third of the personal estate and an additional sum of $150, and she and her two minor children to $300 out of the personal estate, and out of the real estate the widow and minor children were entitled to the minimum of ¡80 acres as a homestead, the same being farm lands upon which her husband, herself and children resided at the time of his death, and the widow to one-third of the whole amount of the real estate laid off on some other part of the land than the homestead.

The instrument sought to be canceled, which was made the basis of the probate order, in effect surrendered the entire estate of the widow and two minor children in the estate, for $861.90 as their part of the personal property, and 80 acres, upon which the improvements were located, as the widow’s interest in the real estate. The instrument, upon its .face, was a voluntary surrender on the part of the widow for herself and her minor children of a large part of their interest in said estate without consideration. The children were of tender years, and the widow without experience ill business matters. According to her testimony she was entirely ignorant of the law governing the rights of herself and her two minor children, and she signed the paper without reading it, on the representation that it was an agreement by which she was to receive the homestead and one-third of the personal estate and the other lands. She did not know the instrument was addressed to the probate court and was a petition for the assignment of dower, and did not know it was ever used for that purpose until it was shown her by her attorney after the case had been appealed to the circuit court. The widow’s testimony was corroborated by that of her 12-year-old son, who testified that he heard the conversation between R. Y. Duvall, the administrator, and his mother with reference to dividing the property, and also heard Ellis Duvall and his mother talking about it; that his understanding was that his mother was to get a dower of 80 acres and one-third of all the rest of the land; that he heard his.mother, in conversation with F. M. Hudson, say that she had signed up for 80 acres and one-third; that, pursuant to his understanding, when the oats were cut he went to the barn and told R. Y. and Ellis Duvall that his mother’s part of the oats was 40 'bushels, and was informed that her part was only 13 bushels, as she was to receive only that part raised on the 80 acres selected by his mother as their homestead.

The instrument denominated a contract or petition was drawn by F. M. Hudson, the uncle of R. Y. Duvall, and his brothers and sisters. According to the evidence of the Duvalls and Hudsons, Mrs. Florence Duvall understood the extent of the interest of herself and two minor children in the estate at the time she signed the instrument and understood the contents thereof; the reason assigned by her for voluntarily surrendering a large part of the interest of herself and children in the estate was that she did not want to be worried with looking after more than the 80-acre tract selected by her as the homestead for herself and children. R. Y. Duvall also denied having' misrepresented the contents of the instrument to Florence Duvall at the time she signed it. The generosity attributed by the witnesses for appellants to the widow, Florence Duvall, in surrendering valuable interests in the estate without consideration is slightly out of joint with reason and the ordinary affairs of men. A person burdened with the support, care and education of two minor children of tender years, possessed of such a small amount of worldly goods, would not voluntarily part with his property without compensation. We think Mrs. Duvall’s explanation to the effect that she signed the paper without appreciating its contents, thinking that it was a settlement out of court, and covering the entire interest of herself and minor children in the estate, comports with human nature and is in keeping with the transactions of men in the ordinary affairs of life. To say the least of it, the evidence is in sharp conflict, and we are unable to say, when weighed in the light of all the circumstances, that the conclusion reached by the chancellor is contrary to the weight of the evidence.

No error appearing, the decree is affirmed.


author: McCulloch, C. J.

text:
    State v. Bankers' & Planters' Mutual Insurance Association.
    Opinion delivered February 27, 1922.
    Taxation — mutual benefit society. — Under Crawford & Moses’ Dig., § 9819, imposing “a tax of one hundred dollars for each corporation doing business for profit, organized, as a mutual life, fire, accident, surety, health or other insurance company not having a capital stock and not organized strictly for benevolent or charitable purposes,” a domestic corporation whose business consists merely in soliciting and receiving applications for membership, issuing policies and collecting assessments for the purpose of paying the policies, in addition to paying the salaries of its officers, is not doing business for profit, and therefore is not subject to taxation.
    Appeal from Conway Chancery Court; W. E. Atkinson, Chancellor;
    affirmed.

      J. 8. Utley, A. L. Rotenberry and J. G. Marshall, for appellant.
    The defendant was a mutual insurance company. 52 Ark. 201; 1 N. E. (Ind.) 571; 133 S. W. 146; 46 ,S. E. 949; 38 L. ft. A. 55; 159 S. W. 1036; 66 Iowa 26; 23 N. W. 241. The name of an association does not fix its real character. 73 Me. 299. The only charitable organizations are those organized under the act of 1917 which provides that such charitable and benevolent societies are not taxable for any purpose and their funds cannot even be garnished by a creditor. 136 Ark. 149,148 Ark. 361.

      Strait <& Strait, for appellee.
    Appellee is a fraternal benefit association, and exempt from the general insurance laws of the State. 104 Ark. 417.
    There is a distinction between a beneficial association and an insurance company. 13 Atl. 1112; 19 R. C. L. 1183; 26 Atl. 253; 4 Mo. App. 429; 7 Daly 168; 7 L. R. A. (N. S.) 1154; 5 Id. 1141; 96 Am. Rep. 635; 64 L. R. A. 405; 72 Fed. 413; 19 C. C. A. 286; 38 L. R. A. 33; 28■Atl. 293; 159 Pa. St. 258; 101 Pa. 111.

      The statute exempts organizations which are either charitable or benevolent; these words are not interchangeable. 44 Conn. 60; 26 Am. Rep. 424; 19 NV J. E. 307.
   McCulloch, C. J.

This is an action instituted in the name of the State, on the relation of the Attorney General, against appellee, Bankers’ & Planters’ Mutual Insurance Association, a domestic corporation doing business as a mutual life, health and accident insurance company, to recover the franchise tax alleged to be imposed on associations of that character doing business for profit.

The facts, according to stipulation of counsel upon which the case was tried, are that the operations of appellee in its business are confined to the issuance of benefit certificates or policies to its own members in amounts not exceeding $1000, graduated according to length of membership and payable by assessments levied on the members. The membership is divided into circles, and upon the death of a member the beneficiary under the certificate of membership is entitled to receive the amount specified therein, not exceeding the amount of an assessment on all the members in that circle. If the amount raised by the collection of an assessment exceeds the amount of the benefits to be paid, it is held for use in the payment of subsequent death claims in that circle. Appellee has no lodge system, the method of operation being merely to solicit and receive applications for1 membership, issue policies and collect assessments for the purpose of paying the policies. The by-laws provide for a corps of officers, who are to receive salaries, the amount of which are to be fixed from time to time in the method prescribed.

The statutes, which it is claimed by the Attorney General impose a tax on an association of this kind, are as follows:

“Sec. 9805. Each corporation organized under the laws of this State and each foreign corporation doing business in this State for profit, having no capital stock. shall make a report in writing to the Commission annually on or before June 1, in such form as the Commission may prescribe. ' The report shall be signed and sworn to before an officer authorized to administer oaths, by the president, vice president, secretary 'or other chief officer of the corporation, and forwarded to the Commission. Act March 3, 1913, p.' 518, § 7.” (Crawford & Moses’ Digest).
“Sec. 9806. Such reports shall contain:
“1. The name of the corporation.
“2. The location of its principal office.
“3. The names of the president, secretary, treasurer and members of the 'board of trustees, or directors, with postoffice addresses of each.
“4. The date of the annual election of officers.
“5. The nature of the business which such corporation is engaged in carrying out. Id. § 8.’’ (Crawford & Moses’ Digest).
“Sec. 9819. Upon the filing of the report provided for in sec. 9805, the Commission shall, on or before July 1 of each year, report to the Auditor of State, who shall on or before July 10 charge and certify to the Treasurer of State, for collection as herein provided, a tax of one hundred dollars for each corporation doing business for profit, organized as a mutual life, fire, accident, surety, health or other insurance company, not having a capital stock and not org-anized strictly for benevolent or charitable purposes. All foreign or domestic life, fire, accident, surety, liability, steam boiler, tornado, health or other kind of insurance companies, of whatsoever nature, doing business in this State, having an outstanding capital stock of less than five hundred thousand dollars, shall pay an annual tax of one hundred dollars, and all other such insurance companies having a capital of five hundred thousand dollars, or more, an annual tax of two hundred dollars for the privilege of doing business in this State, and all building and loan associations shall pay an annual tax to the State of twenty-five dollars for the privilege of doing business in this State in place of tax based on the capital as herein provided. Id. § 9.” (Crawford & Moses’ Digest).

It is seen from an analysis of section 9819 that it provides for a franchise tax on three classes of insurance corporations: first, upon non-stock corporations organized as mutual insurance companies and doing business for profit; second, stock companies with a capital stock of less than $500,000, doing an insurance business, and third, stock companies having a capital stock in" excess of $500,000, engaged in the insurance business. If appellee is taxable at all under this section, it must fall within the first class, and its liability for the tax turns on the question whether or not it is doing business for profit. It is confessedly a mutual insurance company, “not having a capital stock,” and if the issuance of policies to its own members and the payment thereof out of assessments constitute doing business for profit, then it is taxable. We are of the opinion that that method of operation is not doing business for profit. If it was in contemplation of the lawmakers that the mere issuance of policies to members of the association constituted doing business for profit, it was entirely unnecessary to add the words, “doing business for profit,” and the legislative intent could have been expressed merely by declaring that the tax should be imposed upon non-stock mutual insurance companies. The use of the term, “doing- business for profit,” indicates very clearly that the lawmakers did not contemplate that merely the issuance of policies to 'members would constitute doing business for profit.

It is not without significance that the former statute (Acts 1911, p. 67, sec. 9) which the present statute amended, did not contain the words “doing business for profit, ’ ’ but, on the contrary, imposed, in express words, a fiat tax of $20 on all non-stock mutual insurance companies and associations doing business on the assessment plan for the protection and benefit of its members.

The purpose of the whole section was to impose a franchise tax upon insurance corporations doing business for profit, and the amount of the tax imposed on stock companies is graduated according to the amount of the capital stock. It was then within the conception of the framers of the statute that there might be non-stock companies issuing policies for profit to others than members of the association, -and the purpose being to tax all associations doing business for profit, this clause was incorporated in the statute, so as to reach those associations doing business for profit but without capital stock.

The use of the word “strictly” in connection with the term, “for benevolent or charitable purposes,” indicates that this was what was in the minds of the framers of the statute. It indicates that they intended that unless a mutual insurance association confined itself strictly and exclusively to the issuance of policies to its own members, it should be taxed as a corporation of that character, doing business for profit. The terms, “for benevolent or charitable purposes” was manifestly used for the purpose of distinguishing a class of associations which confine themselves to the issuance of policies to members and the payment of such policies out of contributions from the members. Mutual insurance companies operating in that exclusive method are not doing business for profit as in the case of companies issuing policies to all who apply and are found worthy, even though, in a test of reciprocal rights between a member and such an association, the principles of law governing stock insurance companies are applicable. Sovereign Camp Woodmen of the World v. Newsum, 142 Ark. 132.

The fact that the officers of appellee association receive salaries -must be eliminated from the consideration in determining whether or not the association is doing business for profit. The active business of all organizations, even those devoted to charity and benevolence, is generally conducted by salaried officers, -and the fact that they do receive salaries for their services does not change the character of the association.

The term, “doing business for profit,” as used in the statute, refers to the operation of the corporation itself — whether it is doing business for profit — and has no reference to the remuneration received by its officers.

In order to impose liability for tax it must be found that the character of business sought to be taxed falls, either expressly or by fair implication, within the language'used. It does not appear to us that the language of the statute includes a corporation doing business according to the method pursued by appellee.

Our attention has been directed to a recent decision of the United States Circuit Court of Appeals of this circuit in the case of Bankers’ & Planters’ Mutual Insurance Co. v. Walker, 279 Fed. 53, in which the.court held that the present appellee was subject to taxation under section 504 of the Federal war revenue tax law of 1917, which imposed a percentage tax on ‘ each $100, or fractional part thereof, of the amount for which any life is insured under any policy of insurance, or other instrument, by whatever name the same is called. ’ ’ The court decided in that case that the statute imposed this tax on all kinds of insurance business, whether for profit or otherwise. The court also held that appellee’s business did not fall within certain exceptions prescribed in the statute for the reason that the descriptive language used in this statute did not include the kind of business in which appellee was engaged. The decision has no application to the present case.

Decree affirmed.