author: McHaney, J.

text:
    Hagler v. Arkansas County.
    Opinion delivered January 30, 1928.
    1. Counties — transfer of surplus in bond account to general revenue. — Where the county issued bonds under Amendment 11 to cover indebtedness existing prior to October 7, 1924, but county warrants dated prior to that date were accepted in payment of taxes prior to the receipt of bond money, resulting in a surplus in the bond account, 'held under Acts 1927, p. 86, that such surplus was properly transferred to the county general account.
    2. Counties — county warrants payable for county taxes. — When county warrants are presented, they must be accepted in payment of county taxes.'
    3. Counties — indebtedness payable from bond issue. — Under Acts 1927, p. 591, a county which issued bonds to pay indebtedness existing prior to October 7, 1924, was entitled to pay any indebtedness existing prior to December 7, 1924, from the surplus bond account or to have a supplemental bond issue to take up such indebtedness if the funds in the surplus bond account are insufficient.
    Appeal from Arkansas Circuit Court, Southern District; W. J. Waggoner, Judge;
    reversed.

      Peyton Moncrief and A. G. Meehan, for appellant.

      J. M. Brice, for appellee.
   McHaney, J.

On June 27, 1927, the county judge of Arkansas County issued a citation to appellant,- John L. Hagler, county treasurer, directing him to appear on the first day of the next term of the county court, which was July 4, and show cause why an order should not be made by the court requiring him, as treasurer, to transfer the surplus funds in the bond account to the county general account. The county treasurer appeared on that day, in obedience to the citation, and filed a response, stating that, under Amendment No. 11, and by order of the county court, Arkansas County had issued bonds, under date of May 1, 1925, to cover indebtedness existing prior to October 7, 1924, in the sum of $85,000; that a premium of $250 was paid by the .'bond purchasers for' the issue, plus accrued interest from May 1, 1925, the date of the bonds, to June 15, 1925, the date of receipt of the funds, in the sum of $531.25, making a total .amount received on the sale of the bonds in the sum of $85,781.25; that, out of said funds, county warrants dated prior to October 7, 1924, were taken up and canceled in the total sum of $63,-925.36, which left a balance on hand from the original bond issue of $21,855.89, on which he had received interest from the depository banks from June 15, 1925, to June 1, 1927, in the sum of $1,918.71, making a total on hand at the time of his response of $23,774.60 to the credit of the surplus bond account.

He further alleged that the county collector had received in payment of county taxes, during the first and second quarters of 1925, county warrants which had been issued prior to October 7, 1924, in the sum of $20,255.98, which had been turned in iby the collector to the treasurer on settlement presented to the county court on the regular quarterly settlements, and canceled by the order of the county court, and the treasurer credited with the payment of same. He further alleged that, had the county court held up the cancellation of the said warrants in the sum of $20,255.98, which had been received by the collector in payment of county taxes as aforesaid, the said warrants could and would have been paid out of the bond account, and not out of the county general funds, as was done by reason of the cancellation of same before the treasurer had received the bond money from the sale of bonds, as aforesaid, and that, as a .result thereof, there was to the credit of the bond account a surplus of $23,774.60, with accrued interest to June 1, 1927. He further alleged that act 30 of the Acts of 1927, approved February 23, 1927, is unconstitutional and void, and that therefore the county court had no authority to order him, as treasurer, to transfer said surplus funds from the bond account to the county general account. Whereupon the county court made and entered an order, which will be hereafter found embodied in the order of the circuit court, requiring appellant to transfer the surplus in the bond account to the county general account. An appeal was duly prosecuted to the circuit court, and, on a hearing, that court rendered the following judgment:

“On this the 6th day of July, 1927, a judicial day of .the regular July term of said court, this cause coming on to be heard, and the appellant, John L. Hagler, as county treasurer of Arkansas County, Arkansas, appears in person, and the appellee, Arkansas County, by its county judge, J. E. Parker, and J. M. Brice, employed as special counsel by the county judge, and Guy E. Williams, prosecuting attorney, appear, and both sides announce ready for trial, and, by agreement of both sides, this cause is submitted to the court without the intervention of a jury, upon the pleadings filed in the county court and the order of the county court, from which appellant has prosecuted this appeal, and other testimony, and the court finds that the county court made an order requiring the appellant, as county treasurer, to transfer the surplus proceeds arising from the sale of county bonds from the bond account to the county general account, which order of the county court, omitting the caption, reads as follows:
‘ ‘ ‘ The matter of .making an order transferring certain surplus funds now in the bond account to the county general account coming on to be heard, and it appearing that the county treasurer, John L. Hagler, has been given written notice of .this matter, and has entered his appear-' anee herein, and filed a verified response, it is submitted, upon said notice and the response of said treasurer, and other evidence adduced at this hearing, and the court finds: That a bond issue was made under date of May 1, 1925, for Arkansas County, Arkansas, in the sum of $85,000, and that on June 15, 1925, the treasurer of said county and State received the proceeds from sale of said bonds in the sum of $85,000, plus premium of $250, and accrued interest up to June 15,1925, of $531.21, totaling the sum of $85,781.25, and further finds that the purpose of this bond issue and sale was to pay off the indebtedness of the county as evidenced by county warrants issued, prior to October 7, 1924, and claims allowed by the court prior to the 7th day of October, 1924. The court also finds that county warrants which were dated before October 7, 1924, were paid from the bond account and canceled at various cancellations in the total sum of $63,-925.36, and that on June 1, 1925, there remained in the treasury to the credit of the bond account the sum of $21,855.89, plus accrued interest of $1,918.71, totaling the said sum to the bond account in the sum of $23,774.60, and that there were no other outstanding county warrants against this bond account. The court further finds that the county treasurer had received from the collector, W. C. Woodson, during the first and second quarters of 1925, in settlements, county warrants which were issued prior to October 7, 1924, in the total sum of $20,774.98, and that the county treasurer turned these warrants in on quarterly settlements, before receiving the money from sale of bonds, and the warrants were by the county judge or county court canceled and the treasurer given credit therefor, and that these warrants during the first and second quarters paid out of the general fund or account; and that there are now no- outstanding county warrants issued prior to October 7, 1924, against the bond account, all having been canceled, or barred on June 4, 1926, under call of county court dated March 2, 1926. The court finds that, under act No. 30 of the General Assembly of 1927, approved February 23, 1927, this sum of $23,774.60, including interest to June 1, 1927, together with-interest which has accrued since June 1, 1927, and under the law should be transferred from the bond account to the county general account, and the county reimbursed. The court finds that the findings of facts herein are in accord with the response of the- county treasurer of Arkansas County, but that the county treasurer, John L. Hagler, denies that the -court has the authority, under said act No. 30 of the Acts of the General Assembly of 1927, or under any law, to order him to transfer said funds from the bond account to the general funds of the county. Wherefore it is considered, ordered and adjudged by the court that the $23,774.60, with daily balance interest from June 1, 1927, should be transferred from the bond account to the county general account or fund, and that the county treasurer, John L. Hagler, is hereby directed and commanded to transfer said $23,774.60, with daily balance interest from June 1, 1927, to the county general account fund. ’
‘ ‘ There was no oral testimony adduced on either side on the trial of the ca-se in this court, but that the court finds, from the pleadings and the verified response of John L. Hagler, filed in the county court, that the findings of the facts of the county court are correct, and adopts the findings of the county court as set out in the -foregoing order of the county court as correct and as the findings of this -court, and finds that, under act No. 30 of the General Assembly of Arkansas of 1927, approved February 23, 19'27, the sum of $23,774.60, including interest to June 1, 1927, together with interest which has accrued since June 1, 1927, under the law should be transferred from the bond account to the county general account, and the county reimbursed.
“Wherefore it is considered, ordered and adjudged by the court that the $23,774.60, with interest from June 3, 1927, should be transferred from the bond account to the county general account or fund, and that the county treasurer, John L. Hagler, is hereby directed and commanded to transfer said sum of $23,774.60, with interest from June 1, 1927, to the county general fund or account.
“It is further considered, ordered and adjudged that the clerk of this court shall certify down to the county court and the oler.k of the county court the order and judgment of this court herein, and the county court is directed and commanded to adopt the order and judgment of this court as its own.”

The county treasurer has brought the case to this court for final consideration.

Authority for the action of both the county and circuit courts in making, their respective orders is found in act No. 30, Acts 1927, page 86, the title and first section thereof being as follows:

“An act to provide for the relief of all counties in this State which have issued and sold bonds under the provisions of Amendment No. 11, and have erroneously paid some of the indebtedness for which said bonds were sold out of the general revenues for said counties and now have a surplus in said bond account, and for other purposes.
“Section 1. That in all counties in this State which have funded their indebtedness by means of issuing bonds under the provisions of Amendment No. 11, and, after paying said indebtedness, a surplus remains in said bond account, the county court of each county is hereby authorized, upon a finding- that any part of the indebtedness existing December 7, 1924, had been erroneously paid out of the general revenues of said county when same should have been paid out of the funds derived from the sale of said bonds, to make an order allowing said amount so erroneously paid as a charge against the bond account, and credit the county general fund of said county with said amount so erroneously paid and charged by order of said court to said bond account. That, in each county where funding bonds have been issued by the county court under Amendment 11, the county treasurer shall promptly remit to the banks designated in the court order authorizing the issuance and sale of such bonds on dates due, the interest and principal from funds collected for this purpose.”
The second and third sections of this act are the repealing and emergency clauses, a part of th& latter stating the real emergency, being: “because of the fact that, in all those counties having said surplus caused by the erroneous payment of the outstanding indebtedness out of the general revenue funds of the county for that year, said county will be deprived of sufficient moneys to take care of their current expenses, and be deprived of the use of said moneys in said bond account. This act, account of said emergency, to take effect and be in force from and immediately after its passage.”

This holding of the county and circuit courts would appear to be in conflict with the decision of this court in Airheart v. Winfree, 170 Ark. 1126, 282 S. W. 963, where this court said:

“The principal argument of counsel for appellant is .that, since the declared purpose of Amendment No. 11, as-construed in Kirk v. High, 169 Ark. 152, 273 S. W. 389, 41 A. L. R. 782, was to enable the counties of the State to ‘ get out of debt, ’ as long- as the county continues to be in debt after the adoption of the amendment the authority to issue bonds continues, and that it extends to the maximum amount of the outstanding indebtedness at the time of the adoption of the amendment, and includes warrants issued -subsequent thereto, even though the amount of the old indebtedness has been reduced by payments out of the general revenue funds of the county. In other words, it is contended that, since the amount of the old indebtedness was borrowed and the old indebtedness has been reduced since the adoption of the amendment from an aggregate of $38,337.48 down to $10,857.49, the remainder of the funds should be used in retiring warrants issued subsequent to the adoption of the amendment. We cannot agree with counsel in this argument, for we think it disregards the plain language of the Constitution, as amended, which limits the issuance of bonds to the procurement of funds ‘to pay indebtedness outstanding at the time of the adoption of this amendment,’ and declares that it shall be a felony for any officer to ‘use any part of the proceeds of said bonds for any other purpose’ than the payment of such indebtedness. It is not the amount of the indebtedness at the time of the adoption of the amendment which necessarily determines the amount of the bond issue, for that is determined solely by the amount of the old indebtedness.in existence at the time the money is borrowed and the bonds are issued. As long as the old indebtedness exists, the Constitution authorizes the borrowing of money to pay off that indebtedness, or so much of it as is in existence at the time the bonds are issued. If the old indebtedness has been reduced by payments out of funds of the county, then the authority to issue bonds is limited to the amount of the old indebtedness which remains unpaid. Counsel seek, in the argument, to treat the warrants subsequently issued as in the nature of a renewal of the old indebtedness, for the reason that the latter has been reduced by the payment of funds out of the general revenues, but we are of the opinion that warrants subsequently issued are in no sense a renewal of the old indebtedness. The payment operated as a complete retirement of the old indebtedness to that extent, even though paid out of the general revenues of the county. It must be conceded that the county court had the authority, at the time of the issuance of the bonds, to determine the amount of the old indebtedness, and if, in the meantime, there had been a reissue of warrants, which evidenced the old indebtedness, it was within the province of the county court to include the reissued warrants as a part of the old indebtedness. In other words, the county court has authority to look to the form to ascertain the substance in regard to the amount of the old indebtedness. But it is not shown that the indebtedness represented by appellant’s warrant was a part of the indebtedness of the county at the time of the adoption of the amendment, therefore it is not, either in form or substance, such a claim against the county as can be paid out of funds arising from the sale of bonds.
“Counsel for appellant suggest in the argument that perplexities may arise with regard to the disposition of the surplus fund borrowed by the county, if we hold that it cannot be used in the payment of warrants subsequently issued, but that question is not presented in the present case. The holders of the bonds are not parties to the suit, and we are not called on to determine whether or not they can be required to accept a refund of the unexpended balance in the treasury in payment of the bonds prior to maturity. All that we can decide now is that, under the plain language of the Constitution, the funds cannot be used for any purpose other than the discharge of indebtedness outstanding at the time of the adoption of the amendment.”

At the time the above decision was rendered, the Legislature had not spoken on this matter, as heretofore set out in act 30 of 1927, and a majority of this court have reached the conclusion, after very mature deliberation, that, in the light of said act 30, it is better to indulge the presumption of law that the act is constitutional and overrule, if necessary, the decision in Airheart v. Win-free, than to hold the act unconstitutional land void. Bush v. Martineau, 174 Ark. 214, 295 S. W. 9, and cases cited.

The decision in that case was not the unanimous opinion of the court, Mr. Justice Smith writing a vigorous dissent and setting out arguments against it which we now believe to be unanswerable. In addition to what was there stated, it may be further said that the county judge of Arkansas County, and undoubtedly of other counties, thought Amendment No. 11 meant exactly what it said, and that was that he was authorized to issue bonds “to pay indebtedness outstanding at the time of the adoption of this amendment,” and not indebtedness outstanding at the time the bonds were issued and paid for. It was not finally determined that the amendment had been adopted until the decision of this court in Brickhouse v. Hill, 167 Ark. 513, 268 S. W. 865, February 16, 1925, and it was' not definitely and certainly ascertained on what date the amendment became effective, whether October 7 or December 7,1924, until the decision of this court in Matheny v. Independence County, 169 Ark. 925, 277 S. W. 22, November 23, 1925, where it was held that Amendment No. 11 went into effect on December 7, 1924, and that bonds might be issued for “indebtedness outstanding” on December 7, 1924. So the several county courts were not advised, prior to February 16, 1925, that they had any authority to issue bonds, and did not know, prior to November 23,1925, as to the exact amount of indebtedness for which bonds anight be issued. Arkansas County took the safe course, and issued bonds to cover debts outstanding to October 7,' 1924. Then the enabling act, act No. 210 of 1925, p. 608, requires an order of the county court declaring the total amount of its debts, and publication of such order for one insertion, after which any property owner has thirty days to bring a suit to review the correctness of such order, and thirty days moré in which to appeal to this court after an adverse decision. Necessarily, it was contemplated that a considerable period of time might elapse before the county judges knew exactly what they could do. In the meantime outstanding warrants were presented to the collector in payment of taxes. He had no right to refuse them. County warrants must be accepted in payment of couiity" taxes, and the collector .of Arkansas County accepted in payment of taxes $20,255.98 of such warrants prior to the receipt of the bond money on June 15, 1925. Suppose, for example, this sum of money had been the total outstanding indebtedness of Arkansas County. Under this construction in the Airhart case, it could not issue any bonds, and would be in no better financial condition than it was before. The Legislature, by act 30 of 1927, has found that this payment of the warrants outstanding on December 7, 1924, from the county general fund, was erroneously paid from such fund instead of the bond fund, and correctly so. It was not only a mistake of law, but of fact. Having erred, we think they should be permitted to correct it by crediting the county general fund with the surplus. In the view of the majority, Airheart v. Winfree should be overruled and the act sustained.

By the decision of this court in Matheny v. Independence County, supra, it was held that Amendment No. 11 became effective on December 7,1924, instead of October 7, as the county judge of Arkansas County, and perhaps of other counties, erroneously thought. To correct this error, the Legislature of 1927 passed act 165, Acts of 1927, p. 591, the first section of which reads as follows:

' “The county treasurers of those counties that have heretofore issued and sold bonds, and which still have on hand the proceeds or a portion of the proceeds from the sale of such bonds, are hereby authorized and empowered to use such funds in paying warrants and other legal evidence of indebtedness issued for or on account of indebtedness made or existing to the 7th day of December, 1924, irrespective of the fact that the proceeding’s or orders providing for the issuance of such bonds may or do provide that the proceeds from such bonds, or the issuance or sale thereof, are to be used or employed in payment of indebtedness made or existing to October 7, 1924, or any other date, or to such date or any other date only.”

By virtue of authority of this act, 'it is the opinion of this court that Arkansas County may lawfully pay, from its surplus bond account, any indebtedness existing prior to December 7, 1924, or might yet have a supplemental bond issue to take up the indebtedness existing on December 7, 1924, if the funds in the surplus bond account are insufficient to cover said indebtedness. The plain mandate of the Constitution as amended was to authorize the counties to get out of debt and to stay out of debt. And it is apparent that the only way that many of them can do this is to take up all indebtedness existing at the time Amendment No. 11 became effective, by a bond issue, to be retired by the levying of a tax not to exceed three mills for this purpose, in addition to the general county levy for county purposes.

The judgment of the circuit court is accordingly affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Butler v. Butler.
    Opinion delivered January 30, 1928.
    1. Appeal and error — discretion to permit amendments to pleadings. — It is within the discretion of the trial court to permit pleadings to be amended, and the Supreme Court will not reverse for failure to do so, unless for an abuse of such discretion.
    2. Pleading — refusal to' permit amendment. — Where a case has been completely developed by the taking of depositions, and' by agreement was being submitted to the chancellor in vacation, it was not an abuse of discretion to refuse to permit the complaint to toe amended.
    3. Homestead — abandonment.—To constitute an abandonment of a homestead, the owner must leave it with the intention of renouncing and forsaking it, or with the intention never to return; the law does not require continuous occupation of the homestead to continue it as such.
    4. Homestead — temporary removal. — A temporary removal from a homestead for business purposes does not constitute an abandonment.
    5. Homestead — abandonment.—The owner of a homestead is held not to have abandoned it by removal to another county to earn sufficient money to pay off a mortgage on the homestead, where he rented the homestead for farming purposes, but refused to sell it, and expressed the intention of returning thereto.
    6. Homestead — acquisition of another homestead. — Under Const, art. 9, § 6, the action of a widow in acquiring a homestead in her own right after the death of her husband did not constitute an abandonment of the husband’s homestead, so as to deprive her of the rents and profits thereof during her natural life.
    7. Homestead — underlying coal. — Coal underlying a homestead is a part thereof, and cannot be sold for payment of debts of decedent’s estate, but is protected therefrom in the same manner as the homestead is protected.
    8. Life estate — authority to work mine. — A mine opened on the homestead during the life of the husband may be leased by the widow as a life tenant after his death, and worked to exhaustion.
    Appeal from Logan Chancery Court; J. V. Bourland, Chancellor;
    affirmed.

      Cravens & Cravens, Rhyne & Blair and I. J. Friedman, for appellant.

      White £ White and Evans £ Evans, for appellee.
   McHaney, J.

Appellants are the children of John Butler, deceased, by his first wife, and the appellees are his widow and her children by him, with the exception of J. English, who -was the husband of Delois Butler, deceased, who was a child of John Butler, who was originally made defendant, but who filed an answer in the nature of a cross-complaint, and is now one of the appellants.

For many years prior to his death, on the 12th day of September, 1918, in Crawford County, Arkansas, the said John Butler was the owner of 119 acres of land in Logan County, Arkansas, on which he had resided for many years with his family, as his homestead. In the fall of 1916 he removed with his family from his homestead in Logan County to Crawford County, where he continued to reside until the time of his death, which, as heretofore stated, was on September 12, 1918. There was a coal mine, on this homestead, which had been operated for some years prior to his removal therefrom by John Butler, and the place had been mortgaged by Mr. Butler to W. B. Rhyne for $2,500. After her husband’s death, Mrs. Butler went to Port Smith to live, where -she purchased a little home for herself and minor children, as she says, to get the advantage of better schools and to obtain employment’ for herself, which she did in a garment factory, in order to supplement her income to the rents and profits from the lands in Logan County.

One of the appellants w7as the administrator of his father’s estate. He wound up the estate, and turned the land back to his stepmother, which she has been operating since that time, receiving the rents and profits, both from the farming operations and the mining of coal. In 1921 she made a lease thereof for coal mining purposes to one Brogden. The mine had been operated, after Mr. Butler moved to Crawford County and during his lifetime, by Palley & Miller, who ceased operations, and, when Brogden took charge, there is evidence to show that the mine had partially filled up with water, and the mouth had somewhat caved in. After Mr. Butler’s death a new pit was opened up, but apparently on the same vein of coal as was being operated in the old mine, and Mrs. Butler received the rents and profits therefrom. On a hearing, the chancellor found that John Butler had not abandoned his homestead by his removal to Crawford County, and that the -widow, Mrs. A. Y. Butler, had not abandoned the same, and entered a decree dismissing the complaint and the cross-complaint' of English for want of equity, from which is this appeal.

On the trial of the case, appellants offered" to prove by one witness that the value of the land in controversy was in excess of $2,500, the constitutional limit for a rural homestead in excess of 80 acres. There was no allegation in the complaint to this effect, and the appellants offered to amend the complaint in this regard, but the chancellor declined to permit them to do so, for the reason that the case had been completely developed by the taking’ of depositions, and by agreement was being submitted to the chancellor in vacation in the city of Port Smith, and that appellees were not prepared to meet this new allegation. It is within the discretion of the trial court to permit amendments to pleadings, and this court will not reverse for failure to do so, unless for an abuse of such discretion, and we do not think that an abuse of discretion was shown in this regard. Arkansas State Life Ins. Co. v. Allen, 166 Ark. 490, 266 S. W. 449; Meador v. Weathers, 167 Ark. 264, 267 S. W. 787.

■ If appellants had desired to raise the issue of the extent of the homestead on account of its value, they should have done so in their complaint, in apt time, so that it could have been met by pleading on behalf of appellees, and by proof. The court did not therefore err in excluding this evidence and in refusing to permit appellants to amend.

The next question to be determined is whether John Butler abandoned his homestead in his lifetime. It is conceded by all parties that the land in controversy was his liomestead until the fall of 1916, when he removed to Crawford' County, but it is 'contended by appellants that, by such removal, he abandoned his homestead. It is not contended that he acquired a new homestead after his removal to Crawford County, and before his death. It is the rule of law in this State, announced by many decisions of this court, that the question of whether there has been an abandonment of a homestead once established,'is almost entirely a question of intent on the part of the homestead owner so-to do: .In other words, in order to constitute an abandonment of a homestead, the owner must leave it with the intention of renouncing and forsaking it, or leaving it never to return. The law does not require continuous occupation of the homestead to continue it as such! As, was said-in one of the earlier cases before this court, Euper v. Alkire & Co., 37 Ark. 283: “When a homestead right has once attached, a continuous actual occupation is not indispensable for its preservation. It is well settled by the authorities that a removal from the homestead for a temporary purpose, or with the intention of returning and again occupying it, is not such an abandonment as will forfeit the homestead right.” And in that case the court quoted with approval from McMillan v. Warner, 38 Tex. 410, as follows: “The-question of abandonment is almost exclusively a question of intent, since ho legal abandonment can occur without a fixed intent to renounce and forsake, 'or to leave never to return; and to abandon a homestead, a party must forsake and leave it with the intent never to •return to it again as a homestead.” . In the more recent ease of Gillis v. Gillis, 164 Ark. 532, 262 S. W. 307, this court said: “The question of whether one who removes from his- homestead has abandoned same is one of intention, which must be determined from the facts and circumstances attending each case.”

A temporary removal from a homestead for business purposes does’ not constitute an- abandonment. In this case it is shown that Mr.. Butler, Avhen he removed to Crawford County, went there to cultivate bottom lands, by which he thought he could earn sufficient money to pay off the mortgage on his homestead; that he rented his homestead for one year only for farming purposes; that he refused to sell same to persons who offered to purchase. It is also shown by a number of witnesses that he expressed, on many occasions, his intention of returning to his home in Logan County, and these expressions of intention in this regard continued up to the very day of his death. While there is some conflict in the evidence regarding the question of bis intention, we do not find that the chancellor’s finding is against the preponderance thereof, and we therefore hold with the chancellor, that John Butler did not abandon his home in his lifetime.

The next question for determination is whether his widow, the appellee, Mrs. A. V. Butler, abandoned same. Section 6 of article 9 of the Constitution of 1874 reads as follows:

“If the owner of a homestead die, leaving a widow, but no children, and said widow has no separate homestead in her own right, the same shall be exempt, and the rents and profits thereof shall vest in her during her natural life. Provided, that if the owner leaves children, one or more, said child or children shall share with said widow, and be entitled to half the rents and profits till each of them arrives at twenty-one years of age; each child’s rights to cease at twenty-one years of age, and the shares to go to the younger children and then all go to the widow; and provided that said widow or children may reside on the homestead or not, and in case of the death of the widow, all of said homestead shall be vested in the minor children of the testator or intestate. ’ ’
The -widow did not have a separate homestead in her own right at the time of her husband’s death, and she also had minor children. Therefore, under the plain provision of the Constitution, the homestead of her husband became hers for life, exempt from any debts, except the mortgage indebtedness, together with the rents and profits therefrom, to be shared by. her and her minor children until they reach the age of twenty-one years. She could not abandon the homestead so as to be effectual against the minor children, and her act in purchasing a home in Fort Smith for the purpose of supporting and educating her children there, does not constitute an abandonment. The only qualification of her right to enjoy the rents and profits of the homestead during her natural life, contained in this section of the Constitution, is, “if the owner of a homestead die, leaving a widow, but no children} and said widow has no separate homestead in her own right.” Here there are children, and she had no separate homestead in her own right at the time of the death of her husband. In such'a case the acquisition of a homestead in her own right, after the death of her husband, does not constitute an abandonment of her husband’s homestead so as to deprive her of the rents and profits thereof during her natural life. As was said in the case of Davis v. Neal, 100 Ark. 399, 140 S. W. 278, L. R. A. 1916A, 999: “It is the settled policy of this court that homestead acts are remedial, and should be liberally construed to effectuate the beneficent purposes for which they are intended.” And in the case of Colum v. Thornton, 122 Ark. 287, 183 S. W. 205, this court said:
“Our Constitution gives the homestead to the widow for life, without any restrictions. It is the settled policy in this State that laws pertaining to the homestead right of the widow and minor children shall be construed liberally in favor of the homestead claimants.” In this same case the court further said: “Upon the death of her first husband, a life estate vests in her in his homestead, and she has the right to lease it and receive the rents from it, subject, of course, to the rights of her minor children to share same with her until each of them arrives at the age of twenty-one years; and we clo not think she forfeits her homestead by a second marriage and removal to the homestead of her second husband. ’ ’

Again, in the same case, it is said:

“The general rule is that a remarriage hy a widow will not operate to destroy the homestead character of a home left to her and her children hy a former husband. Our Constitution does not require a widow to occupy the homestead. There is nothing’ in it to indicate that the framers intended that the marriage of a widow and her going to her second husband’s homestead and occupying it with him should work a forfeiture of her previously existing legal rights. In short, there is nothing in our Constitution to indicate that the right of homestead of a widow should terminate, should she remarry and go to live with her husband on his homestead; and we do not think .such an act on her part destroys the homestead character of a then existing homestead of herself and her children by her former husband.! ’

The effect of this holding is that a widow does not destroy her homestead right in her husband’s estate by the acquisition of another home in her own right, for her own conveniences and purposes and that of her., minor children. We therefore hold against the contention of appellants in this regard.

The final contention of appellants for a reversal of the case is*that there had been an abandonment of the mining operations at and after the death of John Butler, that constitute the leasing* thereof by Mrs. Butler practically the same as opening a new mine. This contention must also be decided against appellants. It has been held by this court that coal underlying a homestead is a part thereof, and cannot be sold for the payment of the debts of the decedent’s estate, but is protected therefrom the same as the homestead is protected. Russell v. Berry, 70 Ark.-317, 67 S. W. 864.

The rule with reference to the operation of mines by the life tenant is stated by this court in the case of Cherokee Construction Co. v. Harris, 92 Ark. 260, 122 S. W. 485, 132 Am. St. Rep. 177, as follows:

“If there were mines already open on the land when the tenant takes the estate, it is not waste to continue to work them. The offense of waste consists in the first penetration and opening of- the soil, and so it has been held that a mine which was opened at the vesting of the life estate or estate for years may be worked by the tenant, even to exhaustion.” (Citing cases).

In the more recent case of Warren v. Martin, 168 Ark. 682, 272 S. W. 367, this court held that the widow was entitled to receive the rents and profits from an oil and gas lease executed on the homestead property in the husband’s lifetime, but which was not drilled until after his death, and .'this ruling was- based upon the prior decisions of this court, permitting the life tenant to work open mines. A mine so opened may be worked by the life tenant to exhaustion. Cherokee Construction Co. v. Harris, supra; Lee v. Straughan, 146 Ark. 504, 226 S. W. 171. No nevr mine ivas opened on this land by Mrs. Butler, but a new pit on the same vein, and it is immaterial that the mines may have been temporarily abandoned, the only question being, were they opened in the lifetime of the husband? See Deffenbaugh v. Hess, 225 Pa. 638, 74 A. 608, 36 L. R. A. (N. S.) pp. 1102-1104.

We find no error, and the decree is accordingly affirmed.


author: Kirby, J.,

text:
    Henry v. Gulf Refining Company of Louisiana.
    Opinion delivered July 11, 1927.
    1. Ejectment — nature of action. — The action of ejectment is a possessory one, and may be maintained in this Sítate in all cases where there is a legal right of possession against one who wrongfully holds possession from the person having the better right.
    2. Mines and minerals — effect of oil and gas lease. — Leases providing for the drilling of wells on certain land during a period of five years held to give the assignee of the leases exclusive right to possession of the land for exploitation and development of. oil therein for the time designated in the leases in accordance with their terms.

      3. Estoppel — -after-acquired title. — It is only where a grantor attempts to convey a greater estate in lands than he has a right and title to at the" time of conveyance that an after-acquired title passes to the grantee, under Crawfox*d & Moses’ Dig., § 1498, and then no greater estate passes than-was attempted to be passed in the first instance.
    4. Ejectment — sufficiency of complaint. — In an ejectment suit, a complaint alleging the assignment of oil and gas leases, and that plaintiff had performed all conditions precedent, and that oil was being produced from the leased lands, having extended the life of the leases beyond the five-year term in the first instance, and that plaintiff was ousted from the possession of the lands by the assignor and others claiming under new leases executed by the landowners, about fifteen days before the expiration of the first year under the first leases, held good on demurrer, though no facts were alleged showing performance or compliance with conditions of the leases.
    5. Pleading — indefiniteness of complaint. — Where the allegations of a complaint are indefinite and uncertain, rather than insufficient, the defects should be corrected by a motion to make more definite and certain, and not by demurrer.
    Appeal from Union Circuit Court, Second Division; W. A. Speer, Judge;
    affirmed.
    STATEMENT BY THE COURT.
    Appellant brought this suit in ejectment against appellees, claiming the right to the possession of the lands in controversy, under certain mineral leases set out in the complaint. The court sustained a general demurrer to the complaint, and dismissed the action on plaintiff’s refusal to plead further, from which judgment this appeal is prosecuted.
    The complaint alleged that plaintiff was, on Febru-. ary 1, 1923, the owner, seized and possessed of a leasehold estate under a regular 7/8 commercial oil and gas mining lease covering the lands, describing them, and that defendants jointly and severally and unlawfully entered into and upon said lands, and ■ unlawfully withheld possession thereof from plaintiff; alleged further that the parties to the action claim under a common source of title; that the lands described in the complaint are valuable producing oil and gas lands, with a large number of producing oil and gas wells thereon, and that. defendants had appropriated to their own use and benefit the oil and gas products therefrom, to his damage in the value of $20,000,000; prayed for an adjudication of his title, and that possession of the lands be restored to him, damages for the unlawful ouster, and the value of the gas and oil appropriated by defendants ($20,000,000).
    The complaint also alleges that the leases were made 'by the owners of the lands, naming them (the Murphy lease), on the 7th day of May, 1919, setting them out in full, to L. A. Conyers and Hayes Hunt, lessees, who, on December 13, 1919, assigned the leases to O. B. Henry, appellant, with covenants of general warranty, the assignments also being set out in haec verba in the complaint.
    The Cook lease was made on the 14th day of May, 1919, and assigned to appellant by L. A. Conyers and Hayes Hunt, the lessees, on December 13, 1919.
    Complainant further alleged: “That, after the date of all the transactions and conveyances above set out, and while the rights of plaintiff were still extant, and while his leases and assignments were in full force and effect, and while plaintiff had done and performed all of the things required of him to be done and performed under his contract and assignments, the said L. A. Conyers, one of the plaintiff’s assignors and warrantors, for the purpose of making plaintiff’s title to said leasehold estate more perfect and complete, did obtain and procure from the said T. C. Murphy, A. B. Cook and M. L. Cook certain other leases covering said property, as hereinafter set out under paragraphs D and E and F. ’ ’
    It then sets out the second leases from Murphy to L. A. Conyers, made on the 22d day of April, 1920, from A. B. Cook, April 8,1920, and from M. L. Cook, April 28, 1920, and alleges that the estate and rights conferred in the second leases are the same as those conferred and granted by the first leases and assignments thereof, and cover the same property; that both the lessors and lessees are direct grantors and warrantors ,of plaintiff’s title under the first leases; that title under the second leases passed immediately 'by estoppel and under the statute, § 1498, C. & M. Digest; ‘ ‘ and that, by reason thereof, all estates conferred or conveyed by said second leases inured immediately to the benefit of this plaintiff, and all rights and title thereby conferred vested immediately in this plaintiff, and he at once and immediately became the owner thereof.”
    .The leases are alike, except as to the names of the parties in each of the three suits consolidated for hearing, and expressly provide for the drilling of a test well during the first year of the leases, in accordance with the terms thereof; and that the leases shall become null and void if said test well is not drilled within one year from date, and also require the lessee to drill a well upon the particular tracts leased within two years from date, on pain of forfeiture, unless the lessee shall pay the rental reserved in order to defer the commencement of the second well for another year. It is provided that the leases shall remain in force for a term of five years from their date and as long thereafter as oil and gas, or either of them, are produced from the lands by the said lessees. The lessee binds himself to drill a test well on the lands or some block of the leased territory within the first year and upon the lands described in the particular lease within two years from the date.
    About fifteen days before the expiration of the first year, after the leases had been executed and assigned by Conyers to appellant, the landowners executed new leases of the same lands to Conyers, appellant’s assignor of the first leases, and appellees are in possession and developing oil’on the lands under said new leases.
    It was also alleged that appellant was ousted from the possession of these lands on February 1, 1923, by Conyers and the other defendants, which are now wrongfully held and occupied by them for the development and production of oil on the leased lands, to the damage of plaintiff, and that the trespass complained of is joint, affecting all the lands, except certain tracts designated, as to which the Gulf Refining Company was a separate trespasser, etc., but which should be joined in the action for the joint trespasses of the defendants as to the other property.
    In February, 1926, nearly seven years after the execution of the first leases, appellant, O. B. Henry, brought three actions in ejectment against the several appellees herein. General demurrer was filed and sustained, and the plaintiff declined to plead further. The suits were dismissed, from which judgments appeals were taken, and the cases are consolidated for hearing.

      F. P. Sizer, Coulter & Coulter and Gordon Ruffmdster, for appellant.

      Gaughan & Sifford, Mahony, Yocum & Saye and Patterson & Rector, for appellee.
   Kirby, J.,

(after stating the facts). The action of ejectment is a possessory action, and may be maintained in this State in all cases where there is a legal right of possession against one who wrongfully holds possession from the person having the better right. Hill v. Plunkett, 41 Ark. 465; Ritchie v. Johnson, 50 Ark. 555, 8 S. W. 942, 7 Am. St. Rep. 118; and §§ 3686, 3694, C. & M. Digest. See also Osborne v. Ark. Ter. Oil & Gas Co., 103 Ark. 175, 146 S. W. 122.

It is not necessary to determine what estate is conveyed in the minerals in the land described in the mining leases before discovery thereof is made, in order to determine the right to the possession of such lands under a lease from the owner of the lands granting the possession thereof, with the exclusive right to develop and miñe for such minerals for a designated period.

The court held, in Mansfield Gas Co. v. Alexander, 97 Ark. 167, 133 S. W. 837, that by such a lease an exclusive right to make search for and to mine the discovered product is given to the lessee for a limited time. Osborne v. Ark. Ter. Oil & Gas Co., supra, and Kolachny v. Galbraith, 26 Okla. 772, 110 Pac. 902, 38 L. R. A. (N. S.) 451.

The leases, as specifically set out and relied upon in the complaint, unquestionably gave the appellant the exclusive right to possession of the lands for exploitation and development of gas and oil therein for the time designated in the leases in accordance with their terms.

The allegations of the complaint show the making of the leases in the first instance by the owners of the lands to Conyers and Hunt and their assignment to appellant; the making of the second leases of the same lands a few days before the end of the year given in the first leases-for the drilling of the well, and at the end of which time it was provided the leases should -become void if the test well had not been drilled; the ousting of plaintiff, about three years after the making of the second leases, on February '21, 1923, from possession of the lands, which it was. alleged are -now unlawfully held and occupied by Conyers and the other appellees, to whom the second leases had been transferred for the development and production of oil on the leased lands b3r them, and the damages to plaintiff on account thereof.

The execution of these second leases by the owners of the lands to appellant’s assignor, even conceding it was sufficiently -alleged that the right and estate conveyed thereby inured immediately to the benefit of the plaintiff under the terms of the statute, could have had no- effect to convey any further or other right to plaintiff than had already been conveyed under the terms of the first leases in any event, and it was not alleged that the lessors did not have a right to convey the leasehold estates in the first instance, as was done.

It is only in cases where the grantor attempts to convey a greater estate in the lands than he has the right and title to at the time of the conveyance that any -after-acquired title passes to the grantee under the terms of the statute, and then no greater estate would pass than that attempted to be conveyed in the first instance.

It is true that the complaint alleges that the plaintiff had performed all the - conditions precedent, as required in the leases, and that -oil was being produced from the leased lands, which would have, if produced by him, extended the life of the leases beyond the five-year term in the first leases executed, under the express- terms thereof, and, although no facts are alleged showing such performance or compliance with such terms and conditions, and another allegation of the complaint, with the necessary inferences arising from the leases pleaded set out therein, appears to be somewhat in conflict and contradictory of the conclusions alleged, we are of opinion the complaint was not subject to demurrer; the allegations thereof, with the necessary inferences arising from the facts alleged, rendering it indefinite and uncertain rather than insufficient; and the defect should have been corrected by a motion to make more definite and certain rather than by demurrer.

The court erred in holding otherwise, and the judgment is reversed, and the cause remanded with directions to overrule the demurrer, and for such other proceedings as are necessary in accordance with the principles of law and not inconsistent with this opinion.


text:
    Connor v. Blackwood.
    Opinion delivered January 30, 1928.
    1. Bridges — authority op highway commissioner to build toll bridge. — Where the county court had located a public highway, Acts 1927, c. 104, authorizing the State Highway Commission to construct .and operate toll bridges on State highways and to issue bonds for payment, was not invalid within Const., art. 7, § 28, giving the county court exclusive jurisdiction of bridges in the county, since no burden was placed on the county for construction or maintenance of the bridge.
    2. Courts — obiter decision. — A question considered, but which was not before the court, and was unnecessary to the decision of the case, is not binding as authority.
    3. Highways — jurisdiction of county courts. — Const., art. 7, § 28, providing that the county court shall have original exclusive jurisdiction in all matters relating to county roads and bridges, does not apply to State highways.
    4. Statutes — reference to other statutes by title. — Acts 1927, c. 104, authorizing the State Highway Commission to construct'and operate toll bridges on State highways, which, in §§ 2 and 12, extended the provisions of certain sections of other acts by reference to their title only, held not in violation of Const., art. 5, § 23, prohibiting the extension of provisions of other acts by reference to their title only.
    5. Constitutional law — taking of property without compensation. — A taxpayer seeking to enjoin the State Highway Commission from building a bridge as authorized by Acts 1927, c. 104, on the ground that the act provided for the taking of property for public use without compensation, in violation of the Const., art. 1, § 22, held not in position to complain, where he did not claim that his land was about to be' taken.
    6. States — -bonds for construction of bridge. — Acts 1927, p. 282, authorizing- the State Highway Commission to issue bonds for the construction of bridge on State highway, held not contrary to Const., art. 16, § 1, providing that the State shall not lend its credit for any purpose.
    7. Statutes — presumption as to enrolled statute. — -Where a statute is enrolled, signed by the Governor, and deposited with the Secretary of State, it will be presumed that it was validly enacted under - Const., art. 5, § 22, unless the contrary affirmatively appears from the records of the General Assembly.
    Appeal from Pulaski Chancery Court; Frank II. Bodge, Chancellor;
    affirmed.

      E. B. Dillon, for appellant.

      Coleman & Riddick, for appellee.
   McHaney, J.

Appellant, a citizen and taxpayer, seeks to enjoin the State Highway Commission from building “la toll bridge on the State Highway across White River, at or near Augusta, in Woodruff County.” This action challenges the constitutionality, of act 104 of the Acts of 1927, which authorizes the State Highway Commission “to construct and operate toll bridges on the State Highway system, and to fix the rates and collect the tolls thereon.” It is -claimed that §§ 1, 3 and 6 of said act are. unconstitutional and, for that reason, are voi-d.' These sections are as follows:

“Section 1. The State Highway Commission' is hereby authorized to construct and operate toll bridges on the State High-way system and to fix the rates and collect the tolls thereon. When the cost of construction has been realized from the tolls, and the bonds issued on any bridge, with interest, are paid in full, and all sums advanced or loaned by the State Highway Commission are repaid, no further lolls shall be collected, and the use of the bridge thereafter shall be free.”
“Section 3. The Commission may acquire the land necessary for approaches to bridges by gift or purchase, or by condemnation in the manner provided by law for condemning rights-of-way by railroad companies in this State, but without the necessity of making a deposit of money before entering into the possession of the property condemned. The cost and expense of acquiring such land and the expense of constructing approaches shall be considered a part of the cost of constructing the bridges.”
“Section 6. Before issuing bonds .for a toll bridge the Commission shall fix the rates of toll to be collected on such bridge. The Commission may, from time to time,, raise or lower the rales, but it shall always maintain rates that will produce sufficient revenues to pay the bonds and interest as they mature ¡and become due, and keep the bridge and its approaches in good repair.”

It is further alleged in the complaint that the act. is unconstitutional, for two reasons:

1. That it offends agiainst § 28 of article 7, which reads as follows: ‘ ‘ The county courts shall have exclusive original jurisdiction in all matters relating to county laxes, roads, bridges, ferries, paupers, bastardy, vagrants, the apprenticeship of minors, the disbursement of money for county purposes; and • in every other case that may be necessary to the internal improvement and local concerns of the respective counties. The county court shall be held by one judge, except in cases otherwise herein provided. ’ ’

2. That it offends against § 1 of article 16, which reads as follows: “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-hearing treasury warrants or scrip.”

A third ground of complaint made against the validity of the act is that it was not read at length on three different days in each house of the General Assembly, nor wore the rules suspended by a two-thirds vote of each house, nor was a vote taken by ayes and nays and the names of the persons, voting for and against the same entered on the journal, as provided by § 22 of article 5 of the Constitution.

To the complaint alleging these infirmities in the act, a demurrer was interposed and sustained, and, on appellant’s refusal to plead further, his complaint was dismissed for want of equity. From this judgment this appeal is prosecuted.

1. The first contention, that the act is void in that it offends against article 7, § 28, Constitution 1874, for the reason that it deprives the county courts of their, exclusive original jurisdiction over roads and bridges, cannot be sustained, as this court has quite recently held to the contrary in Fulton Ferry & Bridge Co. v. Blackwood, 173 Ark. 645, 293 S. W. 2. It was there held that, since the bridg’e was to be built on an existing highway laid out by the county court, its jurisdiction had been exercised, and was not invaded by the- act of the Legislature authorizing the State Highway Commission to build a bridge thereon. So here, the complaint alleges that the bridge is to be built “on a State Highway,” and, when constructed, will be a part of the State Highway. The act in question authorizes the Commission to build it by issuing bonds for its cost, and to charge and collect-tolls to repay the bonds, and that, when the bonds have been paid and all sums advanced from the highway fund repaid, it shall be toll-free. It is not contemplated that there shall be any tax on the general public, either for construction or maintenance, ¡and no burden is placed on the county, either for construction, maintenance or supervision. These were substantially . the facts in Fulton Ferry & Bridge Co. v. Blackwood, supra, and we there held that the jurisdiction of the county court was not invaded.

Moreover, a majority of the court is of the opinion that article 7, § 28, of the Constitution has no application to a State Highway; that the word “county” as used in this section, is used in its adjective sense, and therefore modifies the noifns litaxes,” “roads,” “bridges,” .“ferries,” etc. .And that the “original exclusive jurisdiction” conferred on the county courts related solely to county taxes, county roads,- county bridges, county ferries, etc; and this idea is strengthened by the concluding sentence of this section, “and in every other case that may be necessary to the internal improvement and local concerns of the respective counties.” Nobody would ever contend that the county courts had anything to do with ¡State taxes. They were given jurisdiction over county taxes. If the word “county” modifies the ■ words “roads,” “bridges,” and “ferries,” as we think is necessarily true, then it follows, as a matter of course, that the exclusive original jurisdiction of the county courts extends only to county roads and county bridges, and that they do not have exclusive, original jurisdiction over State roads and State bridges.

"We do not think the framers of the Constitution had in mind any such stupendous advancement in methods of locomotion and means of transportation as exists today. They did not get a vision of the future of their State, with its citizens traveling entirely across the State over a great State Highway, a distance of three or four hundred miles, in ten or twelve hours. Then, with the means at hand, 50 miles was a hard day’s journey. Even so, they did not, in framing the Constitution, deny the right, power and authority of the State to lay out, construct, repair and maintain State highways, and necessarily bridges or ferries thereon. As we said in Bush v. Martineau, 174 Ark. 214, 295 S. W. 9, “the Constitution of this State is not a grant of enumerated powers to the Legislature, not an enabling, but a restraining act, and that the Legislature may rightfully exercise its powers, subject only to the limitations and restrictions of the Constitution of the United States and the State of Arkansas.” We there quoted from McClure v. Topf & Wright, 112 Ark. 342, 166 S. W. 174, as follows: “It is not to he doubted that the Legislature has the power to make the written laws of the State, unless it is expressly, or by necessary implication, prohibited from iso doing- by the Constitution, 'and the act assailed must be plainly at variance with the Constitution 'before the court will so declare it.” See authorities cited in Bush v. Martineau, supra.

The cases cited by counsel for appellant and amici curiae were cases which came before this court before the State had entered upon such a comprehensive road program, comprising a complete system of State highways throughout the entire State, and the acts of the Legislature of 1927, including the 'act now under consideration, and act No. 31, commonly referred to as the Martineau Road Law, were not before this court. For instance, take the case of Bonds v. Wilson, 171 Ark. 328, 284 S. W. 24, where the court said: “The question of the authority of the State Highway Commission to lay out and establish public roads is not involved in this case. The Legislature has not attempted to confer such authority upon the State Highway Commission, and could not do so, for that would constitute an invasion of the constitutional jurisdiction of the county court.” It will be noticed that the court proceeded to decide a question which it states is not before the court. Therefore the conclusion reached was not necessary to a decision of the case, and is obiter. Since the State has iadopted the policy, as specifically declared in act No. 11 of 1927, § 1, “to take over, construct, repair, maintain and control all the public roads in the State comprising- the State highways, ’ ’ and since, as we have seen, § 28 of art. 7 of the Constitution does not, either expressly or by necessary implication, prohibit it from so doing, we conclude that appellant’s first' contention must be overruled.

Appellant raises certain questions on this appeal that were not raised by the pleadings in the court below; first, that §§ 2 and 12 of the act under consideration attempt to extend the provisions of certain sections of other acts by reference to their title only, in violation of §. 23, art. 5; and second, that the act provides for the taking of private property for public use without just compensation, in violation of § 22, art. 1, of the Constitution. We have examined the argument made, and find it without merit. Appellant does not claim that his land is about to be taken, and is in no position to complain. See Harrington v. White, 131 Ark. 291, 199 S. W. 92, on the first matter.

2. It is next urged that the act offends against § 1, art. 16, of the Constitution, because the Highway Commission is authorized to borrow money and issue bonds to construct bridges. This question has 'been definitely settled lagainst appellant, with no room for controversy, by many decisions of this court, the latest being Bush v. Martineau, supra, and the .cases cited therein. It would serve no useful purpose to quote from them again, or to repeat the reasoning there set out. Suffice it to say that this act does not offend against the Constitution in this regard.

3. It is finally claimed that this act was not passed in accordance with § 22, art. 5* of the Constitution, already mentioned. We cannot sustain this contention. In Bush v. Martineau we quoted from Road Improvement Dist. v. Sale, 154 Ark. 551, 243 S. W. 825, as follows:

“The rule is firmly established in this State that an enrolled statute signed by the Governor and deposited with the Secretary of State raises the presumption that every requirement was complied with, unless the contrary affirmatively appears from the records of the General Assembly, and that this presumption is conclusive unless the records, of which the court can take judicial knowledge, show to the contrary. ’ ’

Also we have examined the journal entries, and find the- constitutional requirement, complied with.

No error appearing, the decree is affirmed.

Hart, C. J., concurs in the judgment.


text:
    Harding v. Hagler.
    Opinion delivered January 30, 1928.
    1. Mortgages — effect of reissuance of note. — Under Crawford & Moses’ Dig*., § 7816 and § 7885, subd. 5, a negotiable instrument may be reacquired by the maker or one of the,joint makers before maturity and reissued so as to carry the lien of a deed of trust or mortgage with it.
    2. Mortgages — acceleration clause. — The acceleration clause contained in notes and deed of trust is a privilege which the holder alone could exercise at its election, and on reacquisition of notes and deed by one of the joint makers after one of the notes was past due, the holder of the second lien could not assert the benefit of the acceleration, clause to defeat the priority of the lien of the assignee as taking after maturity.
    Appeal from Pulaski Chancery Court; Frank IF Dodge., 'Chancellor;
    reversed.

      Carmichael & Hendricks, for appellant.

      Charles W. Mehaffy and John E. Miller, for appellee.
   McHaney, J.

On May 33, 1923, appellees sold to Clem A. Schaer lot one (3), block thirteen (13), Kimball’s South Park Addition to the city of Little Rock, for a consideration of $12,000, $5,500 of which was in cash and $6,500 evidenced by one note signed by said Schaer, having an accelerating clause" providing that the whole amount of the note might be declared due on failure to pay any installment of interest thereon. This note ivas secured b)r vendor’s lien in the deed executed and delivered to Scliaer. The cash payment añade by Schaer was obtained from the Union Trust Company by the execution of ten aiotes by said Schaer and his wife, Ethel F. Schaer, nine for the sum of $300 each, and one for the sum of $5,100, all being dated May 33, 1923, the first of said $100 notes becoming due December 3, 1923, and one $100 note due each six months thereafter, and the note for $5,300 becoming clu'e June 1, 1928, and all of said notes being secured by deed of trust on said property. These notes were identical in form, and all contained the following clause: “This is one of ten notes of even date aggregating $6,000, all equally secured and all of which shall become payable at election of holder upon default in payment of principal or interest of any of them.”

The deed of trust executed by Mr. and Airs. Schaer contained the following provisions :

“Said parties of the first part (Clem A. Schaer and Ethel F. Schaer) are justly indebted unto the said party of the third part (Union Trust Company) in the principal sum of $6,000, gold coin of the United States of America, being- for a loan thereof made by the said party of the third part to the said parties of the first part, and payable according- to the tenor and effect of the principal notes of Clem A. Schaer and Ethel-F. Schaer.” Also: “But, if default be made in the payment of said principal or interest notes, or any of them, or any renewals or extensions thereof, when the same may become due and payable, according- to the tenor and effect thereof, * * * the Avhole of said indebtedness herein secured shall, at the election of the party of the third part, or the legal holder or holders of the. indebtedness herein secured, become and be considered due and payable, as if due and payable according to the tenor thereof.”

The lien retained in the deed from appellant to Schaer Avas waived in the 'face of the instrument in favor of the notes and deed of trust to the Union Trust Company in the sum of $6,000. The $5,100 note heretofore described had interest coupons attached thereto maturing evury six months, and these coupons AA-ere signed only .by Clem A. Schaer. The notes due December 1, 192.2, and June 1, 1924, AVere duly paid. In October, 1924, Clem A. Schaer died. The note becoming due December 1, 1924, aagis not paid at. maturity, hut-on December 11, 1924, Airs. Schaer took up this note and all the remaining notes in the hands of the Union Trust. Company, and it made the folloAving- indorsement on each of said notes:

“For A-alue receiA-ed, Ave hereby sell and assign to Ethel F. Schaer, or order, all our interest in the Avithin bond and all our rights under the -mortgage securing the same, without recourse. Union Trust Company, agent, by E. J. Bodmian. ”

And on the same date the following' indorsement was made on the margin of the record of the deed of trust securing said notes:

“Note of $100 due December 1, 1923, and note of $100 due June 1, 1924, having- been paid, for value received the remaining notes, aggregating $5,800, together with the lien of this instrument and all rights hereunder, are hereby assigned to Ethel F. Schaer, without recourse. This 11th day of December, 1924. Union Trust Company, agent, by E. J. Bodman.”

Mrs. Schaer thereafter retained said notes until August 10, 1926, when she sold and assigned the same to appellants, J. C. Harding and L. J. Loeb, with similar indorsements on the notes and the margin of the record as had theretofore been made by the Union Trust Company. Interest on the note to appellees was paid by Clem A. Schaer in his lifetime, and, after his death, three installments of interest were paid, two ¡by Joe Schaer, trustee, for Mrs. Clem Schaer, and one by Mrs. Schaer on December 7, 1925, being the last interest payment made. The interest installments due in .1926 not having been paid, appellees exercised the option in their note, declared the whole amount due and payable, and on February 21,1927, brought, suit to foreclose their lien for the whole amount of the note and accrued interest, making Mrs. Schaer and her children and appellants, Harding and Loeb, defendants to this action, in which they prayed a • prior and paramount lien upon the property to the lien of Harding and Loeb, on the ground that the reacquisition of said notes by Mrs. Schaer from the Union Trust, Company constituted a payment thereof, so far as their second lien was concerned. Appellants, Harding and Loeb, filed an answer and cross-complaint, setting up the facts heretofore stated relative to their acquisition of said paper’; that they acquired same in good faith and due course, and that their lien was prior and paramount to the lien of appellees. Under the accelerating clause contained in said notes they had declared the whole amqunt thereof due and payable, on which they prayed judgment for a first lien on said property. The court sustained the contention of appellees, entered a decree giving* judgment to them for the full amount of their note and interest, and making same prior and paramount to the claim of appellants. It also gave judgment to the appellants for the amount of their notes, with interest, and decreed a foreclosure thereof subject to the lien of appellees. From this judgment against them Harding* and Loeb have appealed.

The facts are undisputed, and are substantially as heretofore stated: The question for our determination is, first, whether, on the reacquisition of ’ a negotiable instrument by one of the joint makers before maturity, he may, for a consideration, and before maturity, reissue it after it has become his property; and, second, whether, if such negotiable paper consists of a series of notes with an accelerating clause, providing that the holder may, at his election, declare , all subsequent notes due if default be made in the payment of one, and one of such notes is past due at the time of reacquisition, the assignee of such notes from the maker takes them subject to the right of the holder of the second lien to plead payment thereof and thereby make the second lien become the first lien.

Eelative to the first proposition, § 7885, C. &. M. Digest, subdivision 5, provides: “A' negotiable instrument is discharged when the principal debtor becomes the holder of the instrument at or after maturity in his own right.” There are four other subdivisions to this same section, hut subdivision 5 is the only one applicable to the facts in this case. Mrs. Schaer was a joint maker of these notes, and therefore a principal debtor, and when she became the holder of any one of the notes in controversy, at or after maturity, under this section such notes were discharged. It will he seen from the facts heretofore stated that, at the time she reacquired these notes, one of the $100 notes was past due. It will also he seen that three other of such $100 notes became due in her possession and before she reissued them. As to these notes there can be no question but what they are discharged. But, at the time she re-negotiated them, there were three of the $100 notes and one $5,100 note unmatured. The first subdivision of the section of the Digest to the effect that an instrument is discharged “by payment in due course by or on behalf of the principal debtor” does not apply because, as to these notes, it cannot be said that her act in having them assigned to her constituted payment, because it was not done in due course, for the reason that these notes were not yet due.

Section 7816, C. & M. Digest, being § 50 of the Negotiable Instrument Act, provides: “Whére an instrument iis negotiated back to a prior party, such party may, subject to the provisions of this act, reissue and further negotiate the same. But he is not entitled to enforce payment thereof against any intervening- party to whom he is personally liable.”

Construing this same section of the Negotiable Instrument Act, the Missouri Appellate Court, in the case of Arthur v. Rosier, 217 Mo. App. 382, 266 S. W. 737, a case exactly like this on the question now under' consideration, except that the husband reacquired and reissued the note before maturity, said:

“The maker of a promissory note, who is sui juris, may, for a consideration, before maturity, reissue it after it has become his property, but he cannot enforce payment against any intervening party to whom he was personally liable. Section 836 R. S. 1919; Sater v. Hunt, 66 Mo. App. 527; Curry v. Lofou, Mo. App. 163, 113 S. W. 246. In view of the law authorizing the maker to reissue a note that has become his property after its first issue, we hold that Morris occupied the position of an original payee. All parties dealing with this note knew that it was originally secured by a trust deed on the Siloam Springs property.”

The Supreme Court of Tennessee had the same question under consideration in the case of Horn v. Nicholas, 139 Tenn. 453, 201 S. W. 756, and, in construing this same section of the Negotiable Instruments Law, quoted the English rule stated by Lord Abinger, C. B., in Morley v. Culverwell, 7 M. & W. 174, 151 Eng. Reprint 727, as follows :

“A bill is not properly paid and satisfied according to its tenor unless it be paid when it is due; and consequently if it be satisfied before it is due, by an arrangement between the drawer and acceptor, that does not prevent the acceptor from negotiating it. ’ ’

Continuing, the court said:

“Mr. Daniel, in the last edition of his Negotiable Instruments (page 914), after quoting the language of the above decision, states that in the first edition he had stated the law tó be in accord with the New York or minority rule, but that ‘examination of the English authorities, and of the South Carolina case (White v. Williams, 8 S. C. 290, 28 Am. Rep. 294), has satisfied him of the error, and that the English view is correct.’
“This, we believe, is also the conception of bankers and men of commerce as to the rights of such parties; and it evidently was the one acted upon in the instant case. The doctrine admits of convenient results in practical operation, as the facts of this case manifest. The maker was permitted to keep alive the lien securing the note by being allowed to acquire for reissue; whereas, if the note were to be treated as paid, it would be necessary to create a new lien to secure a fresh note. The Negotiable Instruments Law, it appears, is framed .to accord with this view. ”

The court then refers to § 119 (5) of the Negotiable Instruments Law, which is § 7885, C. & M. Digest, heretofore referred to, to the effect that “a negotiable instrument is discharged when the principal debtor becomes the holder of the instrument at of after maturity, in his own right,” and said that this section indicates “that, by acquisition before maturity, a discharge, precluding re-negotiation, does not result.” The court then quotes § 50 of the Negotiable Instruments Law, § 7816,- 0., & M. Digest, heretofore quoted, and says: “The privilege of acquiring- in negotiation and of reissuing is thus broadly in favor of any prior partjn And by § 30 (7796, C. & M. Digest), an instrument is negotiated when it is transferred from one person to another in such manner as to constitute the transferee the holder thereof.”

. We therefore conclude on this point that a negotiable instrument may be reacquired by the maker or one of the joint makers before maturity, and reissued so as to carry the lien of deed of trust or mortgage with it.

On the second proposition it will be noticed that all the notes and the deed of trust had an laccelerating clause which provided in substance that, upon default in the payment of any note or the interest thereon, the whole amount then due and unpaid might, at the option of the holder, be declared due -and-payable. But for this provision in the notes, and/ or deed of trust, no person could have declared them due and payable upon default in the. payment of any one, not even the Union Trust Company. This was a privilege accorded the Union Trust Company, or the holder of the notes — any person to whom it might sell or assign them. It was a privilege accorded the holder of the notes by virtue of the contract between the makers and the Union Trust Company, personal to the holder. In other words, it was the privilege of a holder that he could exercise or not at his election, and he alone had the right to elect. It was not a privilege accorded the holder of the second lien, and there are no equities in the case that could extend the privilege to any one but the holder. The authorities cited by counsel for appellee on this question are correct propositions of law, but they' are not applicable to this case, as they refer to defenses on the notes themselves in an action by an assignee or subsequent holder against the maker.

These authorities apply as between Mrs. Schaer and Harding and Doeb, but it is a defense available only to the maker or person primarily liable. Certainly the appellees.in this case could not interpose a defense peculiarly applicable to Mrs. Schaer which she does not see proper to interpose or make for herself. We therefore conclude that the fact that one of these notes was past due when Mrs. Scliaer reacquired them, and that three others of them fell due in her hands, would not preclude her from re-negotiating the remainder of the notes to the appellants, which carried with them the lien of the deed of trust, and that it continued to be a first lien on‘the property.

The judgment of the chancery court is therefore reversed, and the cause is remanded with directions to enter a decree foreclosing the lien of appellants on the notes acquired by them before maturity, and declaring it a first lien on the property, and to decree a foreclosure on the note of appellee and declare it to be a second lien on the property. It is so ordered.

Mehaefy, J., disqualified and not participating.


author: Mehaffy, J.

text:
    Woodson v. State.
    Opinion delivered January 30, 1928.
    1. Intoxicating liquors — evidence of making mash. — In a prosecution for making mash fit for the manufacture of distilled spirits, evidence based on finding of barrels of mash in defendant’s house held sufficient to sustain a conviction.
    2. Criminal law — evidence obtained through unlawful search. —Evidence of defendant’s violation of the liquor law by making mash, obtained by unlawful search of defendant’s premises without a search warrant, in violation of State and Federal Constitutions, held competent and relevant to prove guilt; the admissibility of evidence not being affected by the illegality of the means by which it was obtained.
    Appeal from Lee Circuit Court; W. D. Dovenport, Judge;
    affirmed.

      F. P. Fitzsimmons and Griffin Smith, for appellant.

      H. W. Applegate, Attorney General, and Darden Moose, Assistant, for .appellee.
   Mehaffy, J.

The appellant, Sidney Woodson, was indicted by the Lee County grand jury on April 7, 1926, charged with making and fermenting mash fit for the manufacture of distilled spirits, etc.

Z. O. Smith, the sheriff of the county, testified that, acting on information that the defendant was ■ making whiskey, he went to his residence to arrest him, and approached by way of the kitchen, the door of which was opear. That there were two fifty-gallon barrels of mash and possibly two or three smaller barrels against the wall of the kitchen.

Appellant objected to this testimony, the objection was overruled, and exception saved.

' Witness said the fifty-gallon barrels were full of mash, the kind used for making whiskey; that appellant at that time was fifty or a hundred yards away, cutting corn or cotton stalks. Witness was accompanied by his deputy, Mr. Clay, who started to arrest the defendant. The defendant escaped arrest. Witness had a warrant for defendant’s arrest from the time the indictment was returned until the arrest was actually made. Defendant was first arrested “just a short time ago; around four or five weeks ago.” Witness did not have a search warrant to search the premises, and did not have a warrant for the arrest of the defendant. The stuff was in the kitchen, and he could not tell what was in the barrels until he went into the house. When the witness saw the mash, defendant was cutting stalks. When they saw what they thought' was mash, Clay went out to arrest defendant, and then they.went into the house and poured the stuff out and found that it was mash.

On cross-examination witness said he could not tell what was in the barrels until he went into the house. Did not find any whiskey.

The evidence offered by the defendant tended to show that what they found was not masli, and the defendant himself testified that he was out cutting cornstalks, and the first knowledge he had of the presence of the officers was when Mr. Clay came out and asked him if he lived up there. When-defendant answered “Yes,” Mr. Clay said, “Come on up here.” Witness told him all right, and went down to the lower end, and intended to go hack to the house, and looked hack, and the deputy had run about 30 or 40 yards with a pistol in his hand. Witness said he did not know who it was, and, for that reason, he ran. He was gone about an hour before he came back. He stayed there, and helped make and plant a crop, and helped pick it. He left home the 7th day of August and came back the 23d of September. He testified that the containers in the house were used for holding slop. That he had purchased some bran and chops from Mr. McClintock; that he had four hogs; that there was no sugar in the mixture, nor syrup.

Appellant contends that the evidence obtained by an unlawful search of his house should have been excluded, and this was the only evidence tending to show that there was mash in the barrels. If this evidence was properly admitted, it was sufficient to justify a verdict of conviction.

A majority of the court is of the opinion that, although defendant’s constitutional rights were violated, this court would not take notice of the manner in .which witness obtained the evidence; that it was competent and relevant, although obtained in violation of the Constitution of the State of Arkansas and the Constitution of the United States.

Mr. Justice Smith, Mr. Justice McHaney and the writer do not agree to this, but they believe, as held by the United States Supreme Court in Marron v. United States, 275 U. S. 192, 48 S. Ct. 74, 72 L. ed., that the effect of the Constitution is to put the courts in the exercise of their power and authority, under limitations and restraints as to the exercise of such power and authority, and to forever secure the people, their persons, houses, papers and effects, against all unreasonable searches and seizures under the guise of law. This protection reaches all alike, whether accused of crime or not, and the duty of giving to it force and effect is obligatory upon all intrusted with the enforcement of the laws.

But, as we have said, the majority of the judges are of opinion that this case is controlled, so far as the admissibility of this evidence is concerned, by the case of Benson v. State, 149 Ark. 633, 233 S. W. 758, in which the court said

“Tisdell made the search without a warrant or other process from any court especially authorizing him so to • do. It is insisted therefore that, as the search was illegally made, any evidence of guilt thus discovered was inadmissible in evidence. The authorities are against appellant on this proposition. Without inquiring or ■deciding what right Tisdell had to search appellant’s premises, it suffices to say that the evidence of appellant’s guilt thus discovered is not rendered inadmissible because Tisdell may have been a trespasser. * * * For these reasons it has long been established that the admissibility of evidence is not affected by the illegality of the means through which the party has been enabled to obtain the evidence. The illegality is by no means condoned, it is merely ignored.”

The court then cites numerous authorities, including Starchman v. State, 62 Ark. 238, 36 S. W. 940, 8 R. C. L. 96, 24 R. C. L., § 22, 10 R. C. L., § 97.

It is useless to review the authorities further, the only que'stion being whether evidence obtained by an unlawful search is admissible, and, as a majority of the judges hold that it is, the evidence is sufficient tcJ sustain the verdict, and the judgment is therefore affirmed.


text:
    Taylor v. Rogers.
    Opinion delivered January 30, 1928.
    1. Constitutional law — impairment of obligation of contract.— A contract for improving a road under the Alexander Road Law (Acts 1915, p. 1400), and Acts 1925, pp. 297, 627, let prior to the Martineau Road Act (Acts-1927, p. 17), could not he abrogated or impaired by the latter act.
    2. Statutes — implied repeal. — To constitute a repeal by implication, there must be such a positive repugnancy between the two laws that they cannot stand together, and there must he irreconcilable conflict or a substitution of one for the other.
    3. Highways — limitation on bond issues. — Acts 1925, p. 297, removing the 30 per cent, limitation .on bond issues for road construction, was not impliedly repealed by Nos. 11, 112, 238 of Acts 1927.
    4. Bridges — validity of contracts for construction of bridge.— Contracts of a road improvement district for the construction of . bridges on a road forming part of the State Highway System, made subsequent to the Martineau Road Act (Acts 1927, No. 11), held void, as that act intended to give the State exclusive jurisdiction of the State Highway System,; but contracts relating to improvement of lateral roads not part of the State Highway System are valid and binding.
    Appeal from Mississippi Chancery Court, Osceola District; J. M. Futrell, Chancellor;
    modified.

      L. P. Biggs, for appellant.

      J. T. Coston, for appellee.
   McHaney, J.

Appellants are citizens and taxpayers in Osceola & Little River Road Improvement District No. 1 of Mississippi County, and appellees are the board of commissioners of said district. The district was organized some ten years ago by an order of the county court of the Osceola District of Mississippi County, on a petition of property owners in the district, under the act of 1915, commonly known as the Alexander Road Law. Bonds were issued to the extent of 30 per cent, of the assessed value of real property within the district and construction begun, 'but the sum of money realized from the sale of bonds was insufficient to improve the roads in the district, and at the session of the Legislature in 1925 the limitation of 30 per cent, of the assessed value in the Alexander Road Law was removed by acts Nos. 99 and 215, which authorized the district, on petition of a majority of the property owners in numbers or acres, to issue bonds sufficient to complete the work of improving the roads in the district. Acting under the authority of said act 99, a majority of the property owners petitioned, and the county court made additional orders authorizing the issuance of additional bonds, which were sold and the money nsed in the construction and improvement of the roads in the district. All of which was done prior to the passage of act 11 of the Acts of 1927, commonly known as the Martineau Road Act. The plans of the district provided for the improvement of the road from Osceola west to Little River, a distance of fifteen miles, and the construction of more than thirty miles of laterals. The main line of the road crosses several drainage canals, and the plans for the work provide for bridges to be built across said canals, which, it is alleged, will cost approximately $12,000. The improvement contem plated on the main line of this road has been completed except the construction of the bridges, and no contract was let for the construction of such bridges prior to the passage of the Martineau Road Act, but a contract has been' let therefor since that time. A contract was let prior to the passage of the Martineau Act to construct and improve the laterals, but the work thereunder has not been done, and the district seeks to issue additional bonds to construct and improve such laterals, and it is alleged it will be necessaiw to issue bonds to the extent of $90,000 in addition to a sum .sufficient to build the bridges on the main line to carry out the contract on the laterals, which had already been entered into prior to the passage of the Martineau Act; and, in addition, that it will require at least $75,000 more to improve other laterals within the district, which are necessary to the efficiency of the system of'road improvement for which the district was organized. In other words, the district desires to issue additional bonds to raise money for three purposes:

(1) For completing the work of improving the laterals embraced in the contract let prior to the passage of the Martineau Act. (2) For building the bridges on the main line for which contract was let subsequent to the passage of the Martineau Act. (3) For improving the laterals within the district for which contract was let after the passage of the Martineau Act.

The State, under the Martineau Act, has assumed the payment of the bonds heretofore issued by this district, and lias taken over the main line, the road from Osceola west to Little River, fifteen miles, but has not taken over the laterals, the main line being a part of the State Highway System, but the laterals were no.t included therein.

By this action appellants seek an injunction against the commissioners of the district to prevent them from issuing any additional bonds for any purpose. Appellees filed an answer, setting up substantially the facts as heretofore stated, to which appellants demurred. On a hearing, the court sustained the demurrer as to the issuance of any additional bonds, except enough. to raise funds sufficient to pay for work contracted prior to the passage of the Martineau Act, and perpetually enjoined the road district from issuing any bonds to pay for bridges, or any work not contracted prior to the passage of the Martineau Act. From this judgment both parties have appealed.

The first question raised by counsel for appellant relates to the authority of the district to issue bonds to carry out the contract for the improving of the laterals called for in the original plans, which contract Avas let prior to the passage of the Acts of 1927. This question must be decided against appellant’s contention, as all valid contracts for road construction let prior to the passage of the Martineau Act could not be abrogated or impaired by any action of the Legislature. In Morgan Engineering Co. v. Cache River Drainage Dist., 115 Ark. 437, 172 S. W. 1020, this court said:

“It is well settled under our’Constitution that the Legislature may not pass an act impairing the obligation of a contract. The board of directors of the drainage district made a. valid and binding contract with the engineering company to furnish all the engineering sendees that would be required in the preliminary surveys, and also for the construction of the ditches required under the lernas of the act. Any law passed by the Legislature, the effect of which would be to impair the binding force of this contract, would be contrary to lire Constitution, and void. ’ ’

It is next insisted by counsel for appellant that act 99 of the Acts of 1925 is impliedly repealed by acts Nos. 11, 112 and 238 of 1927. As alreadjr stated, said act 99 removed the limit on the right to issue bonds in this district. It is conceded b3r appellant that these acts of 1927 do not expressly repeal said act 99. In the recent case of Cordell v. Kent, 174 Ark. 503, 295 S. W. 404, we said:

“The repealing’ clause in act 126 does not express^ repeal act 114. It merefy recites that all laws in conflict are repealed, and to hold that the one repeals the other we would have to say that there is such a repugnancy in the later act as that the earlier is necessarily repealed, or that the Legislature took up the whole subject-matier anew in the later act and evidently intended to enact the later as a substitute for the earlier, which we cannot do, under the rule announced. ’ ’

The rule referred to, in substance, is that a statute is repealed by an express provision to that effect, or by necessary implication, and that, where a statute is repealed by implication, there must be such a positive repugnancy between the two laws that the cannot stand together, and’ that the later statute therefore repeals the earlier; that there must be irreconcilable conflict or substituting one for the other. Without setting out the provisions of act 99 of 1925, and the several provisions of the acts of 1927, we hold that there is no irreconcilable conflict between them, such as would repeal them by implication. See Baugher v. Rudd, 53 Ark. 418, 14 S. W. 623; Nemier v. Bramlett, 103 Ark. 209, 146 S. W. 486; Ward v. Wilson, 127 Ark. 266, 191 S. W. 917; Jones v. Oldham, 109 Ark. 24, 158 S. W. 1075; Bank of Blytheville v. State, 148 Ark. 504, 230 S. W. 550.

An examination of the Acts of 1927, however, especially act No. 11, the Martineau Road Act, convinces us that it was the policy of the State, as declared in § 1 of act 11, “to take over, construct, repair, maintain and control all the public roads in the State comprising the Slate Highways as defined herein.” By § 3 the State undertook the payment of the outstanding bonds issued by road improvement districts issued for the construction of both primary and secondary roads.

Tinder this paragraph of the act the State has lifted from the shoulders of the taxpayers in this district the burden of all bonds becoming due subsequent to January 1,1927. And it is further provided, in § 3, that “all roads of the road districts referred to in this section are hereby taken over by the State, but only such portions of said roads which are now or may 'hereafter be embraced in the State Highway System shall be maintained by the State.” In other words, it was the intention of the Legislature that the State Highway Department should assume the bonded indebtedness of road improvement districts, and that thereafter it had exclusive jurisdiction to construct, repair, maintain and control all of the roads comprising the State Highway System. There is no prohibition in the several acts against the building of county roads, or roads not a part of the State Highway System, under the Alexander Road Law, and we do not understand that the Alexander Road Law has been-repealed by the provisions of the Acts of 1927. See Arkansas State Highway Commission v. Kerby, 175 Ark. 652, 300 S. W. 377.

In so far therefore as the roads in Osceola & Little River Road Improvement District No. 1 form a part of the State Highway System, its board of commissioners is without authority or jurisdiction to act or to issue bonds for the purpose of building roads, bridges or any other part of such highway. But as to those laterals or roads embraced in this improvement which do not form a part of the State Highway- System, its board of commissioners has the authority, under the lacts heretofore referred to, to issue bonds for the completion thereof on compliance with the provision of act 99 of the Acts of 1925. Therefore all contracts which the appellees have made for the construction of bridges on the main line of the road here involved, and which form a part of tlie State Highway System, made subsequent to the passage of-.act No. 11 of the Acts of 1927, were made without authority, and are void. But that all contracts made either prior or subsequent to the passage of the Acts of 3927, relating to the improvement of roads not a part of the State Highway System, are valid and binding, if made in compliance with the law authorizing same.

The result of our views is that the decree of the chancery court will be modified in the manner herein stated, and the case will be reversed, and remanded with directions to enter a decree in accordance with this opinion.