author: McHaney, J.

text:
    State ex rel. Attorney General v. Standard Oil Company of Louisiana.
    Opinion delivered March 25, 1929.

      Hal L. Norwood, Attorney General, and George Vaughan, for appellant.

      T. M. Milling, Gaughan%, Sifford, Godwin & Gmghan and Moore, Gray & Burrow, for appellee.
   McHaney, J.

The State, on relation of her Attorney General, 'brought this action against appellees to recover back taxes alleged to be due the State on account of an under-assessment of their pipe-line properties. To the complaint appellees filed a demurrer on the grounds, first, that, under subdivision (h), § 12 of act 129, Acts 1927, page 400, “no suit can be instituted and maintained for the purpose of recovering any alleged overdue taxes under § 10204 to 10209, inclusive, of Crawford & Moses ’ Digest, or under any laws of Arkansas, without the bringing of such suit having- been approved and sanctioned by the Arkansas Tax Commission, and that said complaint fails to allege or set out as a fact that said Tax Commission has in any way sanctioned or approved the bringing of this suit”; and, second, that the complaint fails to state a cause of action.

The chancery court sustained the demurrer, and, on appellant’s declining to plead further, the complaint was dismissed as to each appellee for want of equity.

The first question presented for our determination is whether § 10204, O. & M. Digest, same being the act of March 12, 1913, page 724, is repealed by implication or substitution by the act of 1927 above referred to; and, if that question be determined in the affirmative, the second question is whether the complaint in such an action must allege, as a condition precedent to the bringing of the suit, the authority of the Tax 'Commission, either by its direction or approval.

Section 10204, C. & M. Digest, provides:

“Where the Attorney General is satisfied from his own investigations, or it is made to appear to him by the statement in writing of any reputable taxpayer of the State, that, in consequence of the failure from any cause to assess and levy taxes, or because of any pretended assessment and levy of taxes upon any basis of valuation other than the true value in money.of any property hereinafter mentioned, or because of any inadequate or insufficient valuation or assessment of such property, or undervaluation thereof, or from any other cause, there are overdue and unpaid taxes owing to the State, or any county or municipal corporation,- or road district, or school ‘ district, by any corporation upon any property now in this State which belonged to any corporation at the time such taxes should have been properly assessed and paid, it shall become his duty to at once institute a suit or suits in chancery, in the name of the State of Arkansas, for the collection of the same, in any county in which the corporation owing such taxes may be found, or in any county in which any part of such property as may be found, or in any county in which any part of such property as may have escaped the payment in whole or in part of the taxes as aforesaid may 'be situated, in which suit or suits the corporation owing such taxes or any corporation claiming an interest in any such property as may have escaped taxation as aforesaid, shall be made a party defendant, and the Governor is authorized to employ any attorneys that may be necessary to assist the Attorney General in such suits; provided, that this act shall be construed as retrospective as well as prospective in operation.”

The other sections of the Digest following 10204 for the collection of overdue taxes from corporations are not material to this inquiry. Section 12 of act 129 of 1927, supra, defines the power and authority of the Tax Commission in the administration of the tax laws of the State. It is divided into 22 subdivisions, running through the alphabet, from “a” to "v” inclusive.. We will not undertake to set out in this opinion the authority conferred upon the Tax Commission by this section under these various subdivisions, nor to review in detail the act as a whole. It is entitled, "An act to create the Arkansas Tax Commission for a term of years,- defining its duties and powers.” It contains 37 sections. The commission is created for a term of 32 years, composed of three persons, to be appointed by the Governor for terms of eight years each. The commissioners are required to be persons who are familiar with property values in the State, and who have knowledge, experience and skill in the administration of tax laws. They are prohibited from engaging in any business that would interfere or be inconsistent with their duties as 'Commissioners, or to take part in any political campaign. Sub-section (a) of § 12 gives them full power and authority “to have and exercise general and complete supervision and control over the valuation, assessment and equalization of all property, privileges and franchises; the collection of taxes, and enforcement of the tax laws of the State, and over the several county assessors, county boards of review and equalization, tax collectors, and other officers charged with the assessment or equalization of property or the collection of taxes throughout the State * *

By sub-section (b) the commission is to have “the exclusive power of original assessment of the property, both real and personal, used in the operating of carrier pipe-line” and other utility companies. A reading of the various sub-sections of § 12 will disclose that the commission is given very broad and comprehensive powers, including full and complete supervision and control over all matters relating not only to the assessment and equalization of taxes, but also to the collection of any and all taxes, not only taxes now due and collectible in the current year, but any that may be overdue or back taxes, and may require of any public official reports giving such information as it may desire' regarding such matters. The commission has authority, by sub-section (j), to require corporations, individuals and partnerships to furnish it full information regarding their capital, gross receipts, net profits, excess profits, current assets and liabilities, values or franchises, value of property, earnings, operating and other expenses, and in fact any information it may desire, “to enable the commission to ascertain the value and relative burden to be borne by every kind of property in this State.” If the commission should not be satisfied with such reports, by sub-section (k) it is given the power to summon witnesses to appear and give testimony and to produce records, etc., and furnish all other information the commission may require within the scope of its authority. It may appoint special investigators -with, the same inquisitorial powers as the commission has; to conduct any number of investigations, contemporaneously, and many other powers, which clearly show that the commission is vested with broad and comprehensive authority over all matters relating to taxation. Subdivision (h) of § 12 provides that the commission shall have full power and authority “to direct and approve suits to be instituted by the Attorney General, prosecuting attorneys, or attorneys specially employed for such purpose, for the collection of any taxes or penalties due the State or any subdivisions, or compelling any taxpayer to comply with the provisions of the tax laws * * *.”

We think this subdivision, taken in connection with the whole act, and especially in connection with other subdivisions of § 12, necessarily repeals by substitution the authority conferred upon the Attorney General by § 10204, C. & M. Digest. 'Certain sections of the Digest and act 343 of 1923 are specifically repealed, and all other laws in conflict are also repealed. Sections 10204 et seq. are not repealed specifically by act 129 of 1927, but it was evidently the intention of the Legislature to place upon the Tax Commission the full responsibility for the enforcement of our tax laws, including the authorization of back-tax suits, to enforce the collection of taxes on property which has been under-assessed, or which has escaped taxation altogether. The language of the act, “to direct and approve suits to be instituted by the Attorney General * * * for the collection of any taxes or penalties,” etc., seems clearly to imply that full power in this regard is vested in the commission. The word “direct” has many meanings, but, as used here, we think it means that when the Tax Commission, on investigation, finds that a suit should be instituted, it has the authority to cause the Attorney General to institute such a suit, and the word “approve” necessarily implies the exercise of discretion on the part of the Tax Commission in permitting such a suit to be instituted. It would thus appear that, if the Attorney General should desire to bring a suit against any corporation for back taxes, he being of the opinion that the property of such corporation has been under-assessed, or that some of its property has escaped taxation, he would be required to report such matter to. the Tax Commission for its approval before the institution of a suit. There might be certain facts and conditions existing in relation to the assessment of such company’s property in the knowledge of the Tax Commission that would make it inequitable or unjust for a suit to be instituted against it, which might be wholly unknown to the Attorney General. For instance, take the case of the appellees, owners of pipe lines in the State of Arkansas, which are, under our law, common carriers. Their property is required to be assessed by the Tax Commission itself, and in fact one of the assessments questioned in this lawsuit, that for 1927, was made by the Tax Commission. Such companies report their properties to the commission, and the commission may not be satisfied with the return as made by such companies. It may make an investigation on its own account to determine a proper valuation, and, having reached such a conclusion, it is announced to such company that, in the judgment of the commission, its property should be assessed at a higher value than that reported by it. By adjustment across the table, as it were, the commission- and the company reach an agreement as to the valuation to be placed upon its property for assessment purposes. In such a case the Attorney General might have no knowledge of the reasons for the making of the assessment, nor how the valuation was determined by the commission. It would seem to be inequitable and unjust to require it to become a defendant in the courts in an effort to overturn the assessment made by the commission by agreement with the company. Thus the reason for requiring the direction and approval of suits to be instituted by the Tax Commission becomes apparent. Whether the old commission, under the old act (§ 9788, C. & M. Digest), prescribing the duties of the commission, which was § 11 of the Acts of 1909, page 764, had the power we now hold the Tax Commission has under the act of 1927, relative to back-tax suits, we do not decide, as it is unnecessary to do so. The identical question now before the court has never been presented to us before. Nor does this construction of the act constitute the taking away of any of the prerogatives of the Attorney General by the courts, as by the Constitution, article 6, § 22, the Attorney General “shall perform such duties as may be prescribed by law.” The Legislature, being the lawmaking power, may prescribe what duties the Attorney General may perform, and, having once prescribed a certain duty for the Attorney General to perform, is not prohibited from later taking it away and imposing it upon some other officer or board. So' in this case the Legislature originally prescribed the duty of the Attorney General with reference to back taxes, or conferred the authority upon him as set out in § 10204, C. & M. Digest, supra, but by the act of 1927 it has limited that power by prescribing that the Tax Commission shall “direct and approve such suits. ’ ’

A statute may be repealed by express provision of a subsequent law, or by necessary implication.

In Cordell v. Kent, 174 Ark. 503, 295 S. W. 404, we quoted with approval from McPherson v. State, 29 Ark. 225, as follows:

“There is, however, another rule of construction sometimes employed, which we should perhaps notice, which is that, where the Legislature takes up a whole subject anew, covering the whole ground, revising the whole subject-matter of a former statute, and evidently intending to enact a substitute, the old statute is repealed, although the new statute contains no express words to that effect.”

To the same general effect see Massey v. State, 168 Ark. 175, 269 S. W. 567; State v. White, 170 Ark. 880, 281 S. W. 678; Ouachita County v. Stone, 173 Ark. 1004, 293 S. W. 1021; and Babb v. El Dorado, 170 Ark. 10, 278 S. W. 649.

We think it is well settled by many decisions of this court, as said in St. Louis, I. M. & S. Ry. Co. v. Paul, 64 Ark. 83, 40 S. W. 705, “that a statute repeals or operates as an amendment of a prior law on the same subject to the extent that they are in conflict, although the latter is not mentioned in the former. ’ ’ And that, in so far as § 10204, C. & M. Digest, reposes in the Attorney General the discretion of the institution of back-tax suits, it has been repealed, and that such discretion is now lodged in the Tax Commission by subdivision (h) of § 12 of the Acts of 1927.

The next question for our determination is whether it is necessary for the complaint in a back-tax suit to allege the direction or approval of the Tax Commission. If so, the complaint was open to demurrer, as. no such allegation was contained in the complaint. If not, the demurrer should have been overruled.

The State’s power to maintain this suit is dependent entirely upon the statute. State ex rel. Attorney General v. K. C. & M. Ry. & Bridge Co., 106 Ark. 248, 153 S. W. 614; State ex rel. Attorney General v. N. Y. Life Ins. Co., 119 Ark. 314, 173 S. W. 871; State v. Little, 94 Ark. 217, 126 S. W. 713; Harrison v. Fourche River Valley Ry. Co., 142 Ark. 118, 218 S. W. 208; and Wallace, v. Hill, 135 Ark. 353, 205 S. W. 699.

The power of the State to maintain suits such as the one at bar being purely statutory, the method and procedure prescribed by the statute must be followed as a condition precedent to its right to maintain such action, as judgment and discretion are involved, and must be exercised by those' on whom the law has placed the power and authority to act. The reasons therefor are well stated in the case of Inhabitants of Cape Elizabeth v. Boyd, 86 Me. 318, 29 Atl. 1062, where the court used this language:

“In addition to the other provisions for the collection of taxes legally assessed, the mayor and treasurer of any city, the selectmen of any town, and the assessors of any plantation, to which a tax is due, may, in writing, direct an action of debt to .be commenced in the name of such city, or of the inhabitants of such town or plantation, ag'ainst the party liable. Rev. St. c. 6, § 175. The question is whether a general direction by the selectmen of a town to a tax collector to commence actions against ‘any and all taxpayers’ who ‘refuse or fail’ to pay their taxes, is a compliance with this statute. We think not. The power conferred by this statute requires an exercise of judgment and discretion. A refusal to pay a tax is one thing, a failure to pay is another. The former may be the result of willfulness, or a denial of the legality of the tax. The latter may be the result of sickness and poverty, and an utter inability to pay. In the former case an action may be expedient; in the latter, inexpedient. It is plain therefore that judgment and discretion are to be exercised in determining whether or not an action shall be commenced; and it is a familiar and well-settled rule of law that, when judgment and discretion are to be exercised, they must be exercised by the persons on whom the law has placed the power and authority to act. Their exercise cannot be transferred to another. Such powers are incapable of delegation. Dill. Mun. Corp., § 60, and cases, there cited. The plain meaning of the statute is that no action shall be commenced to collect a tax unless its commencement is directed by some one of the boards or officers named; in writing. An oral direction will not be sufficient. When, in any case, an authority is required to be conferred in writing, an oral authority will not be sufficient. .Such a requirement is calculated to avoid a dispute respecting the fact, and to protect towns against hasty inconsiderate action by their selectmen. Sc held in Morrell v. Dixfield, 30 Me. 157. And each suit should receive a separate consideration. . A general direction to the tax collector to commence actions against any and all taxpayers who refuse or fail to pay their taxes is not sufficient. It is. not sufficiently specific. It practically transfers to the collector the power to determine whether or not any particular action shall he commenced, and this the law will not allow. For these reasons we hold the direction in this case insufficient, and the action improperly commenced. ”

This case was cited with approval ¡by the Supreme Court of Maine in the case of Inhabitants v. Small, 89 Me. 154, 36 Atl. 107, where the following language was used:

“Since those decisions, an amendment of the statute provides that the mayor and treasurer of cities, or the selectmen of any town, or assessor of any plantation, to which a tax is due, ‘may, in writing, direct an action of debt to he commenced in the name of such city, or of the inhabitants of such town or plantation, against the party liable. ’ Under this statute it has been held by this court that no action can be commenced or maintained in the name of the town to recover taxes unless its commencement is directed in writing by some one of the boards named in the .statute. Inhabitants of Cape Elizabeth v. Boyd, 86 Me. 318, 29 Atl. 1062. Such written direction being necessary to the maintenance of the action, it must be alleged in the writ. It is a traversible fact, and is put in issue under the plea of the general issue. Inhabitants of Orono v. Emery, 86 Me. 366, 29 Atl. 1095. Good pleading requires that it should be alleged with time and place. ’ ’

See also Inhabitants v. Lawry, 89 Me. 582, 36 Atl. 1103. In Ricker v. Brooks, 155 Mass. 400, 29 N. E. 534, it was said:

“The demurrer in this case was rightly sustained. The bill, though brought in the name of the collector of taxes, contained no allegation that there had been a neglect to pay the taxes for three months after committed to the collector. 'The right of the collector to bring suit in his own name being purely statutory, it was necessary to allege the existence of the fact or facts on which his right to sue depended. >St. 1889, c. 334, § 7.”

We conclude therefore that the failure of the complaint to allege that the suit was brought at the direction or with the approval of the Tax Commission was a fatal defect, which was open to demurrer.

The decree of the chancery court sustaining the demurrer and dismissing the complaint for want of equity is correct, and must be affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Johnson v. Bank of Vandervoort.
    Opinion delivered March 25, 1929.

      Minor Pipkin, for appellant.

      J. I. Alley, for appellee.
   McHaney, J.

On April 22, 1924, appellant, O. C. Johnson, purchased -certain lands from one Robert F. Davis for a consideration of $600, $200 in cash and $400 evidenced by one note due December 31, 1924, at 10 per cent, per annum from date, for which deed was executed, with a lien retained to secure the payment of said note. On June 4, 1924, appellants borrowed from appellee $423.50 at 10 per cent, from maturity, for which they executed their note due December 31, 1924, for the purpose of taking up the lien note held by Davis. The money borrowed from appellee was deposited to the credit of Davis in appellee bank. The note executed by appellants to appellee was on a collateral form note, with the blanks reciting- the kind of collateral unfilled. Neither note was paid at maturity, but the lien note held by Davis was turned over to appellee in the fall of 1925, the date not being definitely shown, by indorsement, and delivered to'appellee by Davis. A $50 payment was made by appellants on their note to appellee on November 5, 1925, which left a balance dne of $873.50. Appellee brought suit to foreclose the lien retained in the note and deed on the land, on the ground that it had been sub-rogated to the right of Davis therein.

Apparently interest should have 'been figured on $423.50 from December 31, 1924, to November 5, 1925, added thereto, and the $50 payment deducted from the sum and interest on the balance at 10 per cent, from November 5,1925; but the court did not do this. .It found that there was a payment of $50 made on November 5, 1924, leaving a balance of $373.50 at 10 per cent, from December 31, 1924, which made a total sum of $517.55 at the date of the judgment, for which amount decree was entered, with interest thereon from that date at 10 per cent. However, no point is made as to the incorrect method of figuring interest, and we will treat it as the court and parties have treated it.

We think the decree of the court is correct, and that there was no error in overruling appellants’ demurrer to the complaint, as the complaint stated a cause of action. The money was borrowed from appellee to pay off the note due Davis. It was not deposited to appellants ’ credit, but to the credit of Davis, and Davis testified that he understood from Johnson, who later came to him and told him to take the note to appellee bank, that it would be paid and held by the bank. He said he understood from Johnson that appellee was to hold the lien note until appellants’ note to the ..bank had been paid. The cashier of the bank at the time of the transaction testified very unsatisfactorily, but he did s.ay that Johnson said nothing to him about turning over the note, evidently meaning turning over to Johnson the lien note after it was delivered to the bank. The court found from the evidence that the appellants borrowed the money from the bank to pay the Davis note, and that the money so borrowed was used to pay said nóte, and that Davis was directed by Johnson to surrender the said lien note to the bank to be held as assignee until the same was paid, and that the bank should be subrogated to the rights of Davis in and to said note. Accordingly it decreed a foreclosure.

We think there was sufficient evidence to sustain the court’s finding. At least we cannot say that the finding of the court was clearly against the preponderance of the evidence and that a case of conventional sub-rogation has .been established. In 25 R. C. L. page 1317, § 5, it is said:

“It has been said that conventional subrogation can result only from an express agreement, either with the debtor or creditor, and that it is not enough that a person paying the debt of another shall do so merely upon the understanding on his part that he should be subro-gated to the rights of the creditor, but most courts hold that a contract for conventional subrogation may be implied from the circumstances. ’ ’

Here the bank in effect paid the purchase money note to Davis. Under such circumstances, if an express agreement was not made, an agreement may be implied, which equity will do when justice requires it. Appellants have not paid the note to the bank, and appellant G. C. Johnson has not paid bis purchase money note. The bank advanced the money to pay it, and we think a fair construction of all the evidence and the circumstances shows that it was done under an agreement that the bank would hold the lien note until the note given it by appellants was paid. 25 ft. 0. L. 1351.

Of course appellant G. 0. Johnson denies that there was any agreement that the bank should hold the lien note, but that, when delivered to the bank, it was to be forwarded to him. In this he is contradicted by Davis, Oapehart, and by the present cashier of the bank, Mr. Bailey, and somewhat by his own letters to the bank.

We find no error, and the decree is affirmed.


author: Hart, C. J.,

text:
    Commonwealth Farm Loan Company v. Lester.
    Opinion delivered April 1, 1929.

      Mann & McCulloch, for appellant.

      Matin & Harrelson, for appellee.
   Hart, C. J.,

(after stating- the facts). It is conceded by counsel that the only question raised by this appeal is the validity of the sale of the lands in question for the taxes levied by the county court in October, 1923. It is claimed that the record does not show that the school taxes were voted and levied in accordance with the provisions of the statute. In making this contention, reliance is placed upon the fact that the county clerk did not spread upon the records of the county court the certificate of the result of the school elections filed in his office by the superintendent of the board of education of St. Francis County.

Section 8878 of Crawford & Moses’ Digest provides that the county board of education shall promptly canvass the returns of all school elections and certify the result to the county court for proper record. Section 8955 provides that the returns of the school elections, together with the ballots, shall be sealed up and delivered by one of the election judges to the county board of education within twenty days after the election. Section 8956 provides that the county court, at its meeting for levying taxes, shall take the records of the county board of education and ascertain whether the majority of the votes be for tax and the amount of taxes voted in the particular district. Section 8970 provides that the county board of education, in school elections in cities and towns, shall also declare the result of the vote for and against the tax, and certify the same to the county court on the day of the term fixed by law for levying taxes, and that the rate of taxes so certified shall be levied by the court as are other school taxes.

It is contended by counsel for appellant that in making the levy of the siehool taxes the county court can only be governed by the record made in its office as to the result of the school election, and that, inasmuch as the result of the school election was not spread upon the records of the county court, no valid levy could be made. We do not agree with counsel in this contention. We think there was a substantial compliance with the provisions of the statute. The undisputed proof shows that the result of the election, as shown by the order of the county court levying the school taxes in question in this case, was certified by the county board of education, after canvassing the returns of said school election. A carbon copy of the certificate was kept on file by the superintendent of the board, and what was called the original was, filed by him in the office of the county clerk. The county clerk made a notation upon the taxbooks of the result of the school election in question, and filed the certificate of the result of the election in his office. This was a substantial compliance with the statute. The statute did not require that the certificate of the result of the school election should be spread at large upon the records of the county court. It was sufficient if the clerk filed it and it thereby became a part of the permanent records of the county court. The fact that it was lost or destroyed did not impair its force as a part of the records of the county court. It only became necessary to prove the fact that it was lost to admit secondary proof of the contents of the ¡certificate.

The settled rule in such cases in this State is that, after proof of the loss or destruction of a record satisfactory to the court is made, its contents may be proved, like any other document, by secondary evidence, when the case does not, from its nature, disclose the existence of other and better evidence. Davies v. Pettit, 11 Ark. 349; Brasch v. Western Tie & Timber Co., 80 Ark. 425, 97 S. W. 445; and Woodruff v. State, 61 Ark. 157, 32 S. W. 102.

Proof that the certificate had been filed was established by the testimony of the superintendent of the board, whose duty it was to deliver the certificate of the school election to the county'clerk, and also by the testimony of the county clerk, whose duty it was to file the same. The loss of the certificate was established by the testimony of the county clerk, who was its custodian as a part of the records of the county court. This testimony was sufficient to let in parol proof of the contents of the certificate, and this was established by the testimony of the county superintendent to the effect that he had kept a carbon copy of the certificate in his office, and the result of the election as shown by his testimony was taken from that copy. The county clerk also testified that, when the certificate was, filed by him, he made a notation therefrom upon the taxbooks of the amount of the levy and the result of the vote. The notation made by bim corresponded with, the amount of tax voted and the result of the vote as shown by the carbon copy of the result of the election as certified and filed with the county board of education. Hence we are of the opinion that there was a valid record of - the school taxes established, which could be acted upon by the county court, and that the sale of the land for the nonpayment of school taxes was in all respects a legal and valid sale and that ap-pellees Latham acquired a valid title under their donation certificate.

It follows that the decree of the chancery court quieting title in them in the lands in question was correct, and must be affirmed. It is so ordered.


text:
    Williams v. Miller Levee District No. 2.
    Opinion delivered April 1, 1929.

      J. M. Garter and B. E. Carter, (f or appellant.

      Henry Moore, Jr., for appellee.
   Hart, C. J.,

(after stating the facts). In Brunson v. Board of Directors of Crawford County Levee District, 107 Ark. 24, 153 S. W. 828, 44 L. R. A. (N. S.) 293, Ann. Cas. 1915A, 493, the court held that, where the statute under which an illegal assessment is made requires that suit be brought by the district directors to collect delinquent taxes, a landowner who, with knowledge of the faieits, pays the taxes illegally assessed, makes a voluntary payment, and cannot recover them hack. It was held that the proper remedy of the landowner would have been to refuse to pay the taxes and defend the suit to collect the same. The court said he could have interposed the same defenses to the recovery of the taxes in the first instance as he now asserts as the basis of his recovery of taxes after they had been paid.

The same, principle was recognized and applied in the case of Chicago, Rock Island & Pacific Ry. Co. v. Brazil, 166 Ark. 246, 266 S. W. 66. It was there held that, where a railroad company, without protest or objection, paid taxes illegally levied on its railroad property on a valuation above that certified by the Tax Commission, it cannot recover the excess as if paid under duress, as the collector, on default, could only return the property delinquent, in which case a suit would be brought, in which the defense of illegality of the tax could be'made.

We can see no good reason for overruling the principles of law decided in these cases, and adhere to them.

But it is insisted by counsel for appellants that they are entitled to recover under the terras of the act creating the levee district. The Legislature of 1911 passed an act to establish a part of Miller County, Arkansas, into a levee district to be known as Miller Levee District No. 2, for the erection arid maintenance of a levee in said district. Special Acts of 1911, page 89. Section four of the act provides that the board shall assess and levy an annual tax on the lands in the district for the purpose of carrying' out the provisions of the act. The section provides that the board of directors shall have power, and it is made its duty, to assess and levy annually a tax upon the valuation as it shall appear each year upon the real estate assessment hooks of Miller County, Arkansas, upon all lands in said district, etc. Section five provides that if, in adjusting and correcting the list of land subject to levee taxes, it is found that taxes have been 'collected for land not subject to levee taxes, the proper board of directors shall cause such taxes to be refunded, and in no case shall taxes be collected for any land lying between the levee and the river, not protected from overflow by said levee. Section six makes the sheriff of Miller County, Arkansas, the collector of levee taxes. It provides that, if the levee taxes are not paid by the tenth day of April, a penalty of twenty-five per cent, shall attach to said delinquency, and the board of directors shall enforce the collection of the taxes by chancery proceedings. It further provides that said proceedings shall be in the nature of proceedings in rem.

We cannot agree with counsel for appellants that § 5 gives appellants any right to recover taxes which they had voluntarily paid for the years 1924, 1925, 1926 and 1927. The lands in question were assessed as a fractional quarter section belonging to appellants, comprising 213.15 acres. It is true that it turned out that the fractional quarter section contained only 134.15 acres. The fractional quarter section of land in question belonged to the appellants, and was situated within the boundaries of the levee district.. The fractional quarter section of land was therefore subject to levee taxes upon the valuation as it should appear each year upon the real estate assessment books of Miller County, Arkansas. It is true that in the assessment books of Miller County a mistake was made in the number of acres in the fractional quarter section; but this, under the terms of the act, did not give the commissioners the power to adjust and correct the amount of levee taxes. The amount of the levee taxes was fixed by the Legislature upon the valuation of the land made by the county assessor in assessing the land for State and county taxes. Section five of the act creating the levee district only gives the commissioners power to correct the list of lands subject to levee taxes, and does not give them the power or right to refund taxes upon lands which are subject to assessment in the levee district.

This court has decided that § 10180 of Cr.awford & Moses’ Digest, providing for a refund of taxes erroneously assessed by the county court, does not apply to taxes levied under special assessments, such as in the present case. Walton v. Arkansas County, 153 Ark. 288, 239 S. W. 1034.

The taxes were voluntarily paid by appellants; and, the statute creating the levee district not having- provided any means for recovering taxes erroneously assessed, appellants are not entitled to recover, under the facts alleged in their complaint.

It follows that the court properly sustained a demurrer to their complaint, and the judgment must be affirmed.


author: Smith, J.

text:
    H. H. Hall Construction Company v. McLeod.
    Opinion delivered April 1, 1929.

      Little & Buck, for appellant.

      Harrison, Smith & Taylor, for appellee.
   Smith, J.

Appellee alleged in his complaint, and offered testimony to the effect, that he was employed under a written 'contract by the appellant construction company to bnild the shoulders on both sides of a road, and that, after making- this contract and entering upon its discharge, he made another- — a verbal — contract to do certain work under a force account; that he was paid for his work done under the written contract, but not for that done under the verbal -contract, wherefore he brought this suit.

The testimony on the part of the appellant was to the effect that it had only one contract with appellee, and that all work performed by him was done under it; that appellee failed and refused to complete the work he had contracted to do, and it became necessary for appellant to complete it; but, before doing so, appellant took from appellee a receipt and release for all demands arising out of the employment. This release recited that appellee had contracted under -date of September 4,1924, to construct the shoulders to the road, but had not completed the contract in accordance with the plans and specifications, and that, for the consideration of $600.61, “I do hereby acknowledge full payment for all work done or performed by me or under my control by the terms of the contract aforesaid * * *” etc.

The instructions, to which no objections are made, told the jury that appellee could not recover if the work was covered by the written contract or by the release. Appellee testified that the work sued for was extra work and that settlement therefor was reserved when the receipt and release was executed, and that that instrument covered only the work done under the written contract. This testimony is -sharply' disputed, and, however improbable it may appear to us, we must affirm the judgment, as appellee’s testimony is legally sufficient to support the verdict, and the record presents no- question except that of the sufficiency of the testimony.

The judgment must therefore be affirmed, and it is so ordered.


text:
    Wyatt v. Beard.
    Opinion delivered April 1, 1929.

      T. R. Wilson and Oscar E. Ellis, for appellant.

      Coleman & Reeder, for appellee.
   Smith, J.

Appellant filed on June 11, 1928, a complaint, in which he deraigned the title to a tract of land lying within Road Improvement District No. 1 of Izard County from the United States to Amye Cummins, this last conveyance being dated May 29, 1915. He alleged a forfeiture and sale of the land to- the State of Arkansas in 1917 for the nonpayment of the 1916 taxes, and the execution of a donation deed from the State Land Commissioner to G-. W. Bramlett in 1925, based upon this forfeiture, and the acquisition by plaintiff of Bramlett’s title. Plaintiff further alleged that on June 26, 1926, John W. Hall, circuit clerk of Izard County, as commissioner of tlie obancery court, sold the land, under the direction of a decree of the chancery court, for the delinquent improvement district taxes for the years 1923 and 1924:, and that on May 18, 1928, which was within less than two years of the date of the commissioner’s sale, plaintiff had made a written tender of $8.28, the total amount of taxes, penalty, interest and costs necessary to redeem said land, to the clerk of the chancery court, and demanded a certificate of redemption thereon, which tender and demand were refused by the clerk. Wherefore it was prayed that the certificate of purchase issued by the clerk as commissioner to the purchaser at the sale of the land for delinquent improvement district taxes, with any assignments thereof, be canceled, and that Hall, the clerk, as commissioner, who was made a party defendant, be required to permit a redemption of said land. Attached to the complaint as an exhibit was a written offer to redeem, with a tender of the taxes, etc., made to the chancery clerk as commissioner.

Defendants filed an answer and demurrer. The answer alleged the commissioner’s sale, to defendant Dillard and the execution of a commissioner’s deed to Dillard, which was duly approved by the chancery court, and the conveyance, of this title by Dillard to defendant Beard. These deeds were made exhibits to the answer. The demurrer was upon the grounds that the complaint did not state a cause of action; that there was a defect of parties; and that the circuit court was without jurisdiction to grant the relief prayed.

Plaintiff filed a motion to transfer the cause to the chancery court, to the end that the deed from the commissioner to Dillard and that of Dillard to Beard be canceled as clouds upon his title. This motion was granted, and the cause was transferred to equity, where the demurrer to the complaint was heard and sustained, and the cause dismissed. This appeal is from that decree.

For the affirmance of the decree from which this appeal comes it is first insisted that there is a defect of parties, as the complaint does not show that plaintiff has the right'to redeem. This argument is based upon a construction of § 14 of act 674 of the Acts of 1919 (vol. 2 Road Acts 1919, p. 2643), which is the act creating the road improvement district. After providing that the payment of delinquent taxes shall be enforced in the manner provided by §§ 23 and 24 of act No. 279 of the Acts of 1909, it was further provided that “the owner of property sold for taxes thereunder shall have the right to redeem it at any time within two years.from the time when his lands have been stricken off by the commissioner making the sale.”

It appears from the allegations of the complaint that plaintiff was not the owner of the land at the time of the commissioner’s salé, and it is therefore insisted that plaintiff has no right. to redeem without making the owner at the time of the sale a party to this proceeding. We do not concur in the view that it was the legislative purpose to give the word “owner” a meaning so restrictive. This portion of the statute is remedial in its nature, and, like all such statutes, should be liberally construed to effect its beneficent purpose. We think the word “owner” as here employed means any person having an interest in or title to the land sold which would be foreclosed by the failure to exercise the right of redemption within the period of two years after the sale for the taxes by the commissioner, and it is immaterial whether this title or interest existed at the time of the commissioner’s sale. It suffices if it existed or is acquired before the period of redemption expires.

It appears also that the offer to redeem was made within two years of the date of the sale. There have been amendments to this portion of the act, but they do not shorten the time for redemption below two years. It is argued that the complaint in this cause constituted a collateral attack upon the decree of the chancery court under which the land was sold. We do not agree with learned counsel in this contention. The suit is one to exercise the statutory right of redemption and to compel the clerk as commissioner to perform his ministerial duty in that behalf. This right may exist and could be exercised without in any manner questioning the validity of the decree of sale, as the statute allows two years for redemption, and the attempt was made to exercise the right within that time.

It is insisted that the offer to redeem and the tender were insufficient to support the suit to redeem, for the reason that there was no offer to refund to the purchaser the amount due him — the tender which was made having been to the clerk as commissioner. The tender made complied with the requirements of the law. Act 445 of the Acts of 1923 (Acts 1923, p. 395) is an act, as its title indicates, to require additional publicity to tax sales of land and sales of land for local improvement assessments. This act provides that, when any lands are sold for delinquent assessments levied by any improvement district now in existence or hereafter created, under a decree of the chancery court, the clerk thereof shall, within ten days after the filing in his office of the report of the commissioner 'making the sale, prepare and file with the county clerk of the county a certified list of the lands so sold, said list to contain a description of each tract of land under which it was sold, the amount of the taxes, etc. The act further provides that, when any tract of land so sold and certified shall be redeemed from such sale, “the clerk of the chancery court shall certify that fact to the county clerk, who' shall make a note thereof on the margin of the list of sales in his office required herein.” The purpose of this statute is, not only to facilitate redemptions, but to perpetuate the evidence thereof, and it was substantially complied with by the plaintiff in this case.

In addition to what we have said, it may be added that, under the allegations of the complaint, the sale of the land for the improvement taxes was void for the reason that the title thereto at the time of the sale was in the State of Arkansas. It was held in the case of Turley v. St. Francis County Road Imp. Dist., 171 Ark. 939, 287 S. W. 196 (to quote a syllabus), that: “Sale to the State of lands for nonpayment of general taxes suspends the enforcement of the special road tax lien so long as the title remains in the State; hut such lien, under Crawford & Moses’ Digest, § 5433, may he enforced when the land goes hack to private ownership. ’ ’

"We conclude therefore that the court was in error in sustaining the demurrer to appellant’s complaint, and the decree will he reversed, and the cause remanded, with directions to overrule the demurrer.


author: Humphreys, J.

text:
    Patterson v. State.
    Opinion delivered April 1, 1929.

      Edward Gordon and Hays, Priddy & Borex, for appellant.

      Hal L. Norwood, Attorney G-eneral, and Pat Mehaffy, Assistant, for appellee.
   Humphreys, J.

Appellant was indicted, tried and convicted in the circuit court of Pope County for willfully, unlawfully and feloniously stealing and carrying away twenty-two bales of. cotton belonging to W. M. Godbey & Sons, a partnership composed of W. M. God-bey, Wylie Godbey and Buck Godbey, and, as a punishment therefor, was adjudged to serve a term of two years in the State Penitentiary, from which is this appeal.

The theory of the State was that appellant purchased the cotton in question for W. M. Godbey & Sons with its money, with the understanding that he should receive the profits realized from the sale thereof for his services, and put it in a space in the cotton-yard in Atkins which was contracted for by said partnership, and that, when placed there, the several bales of cotton were branded with a “P” to identify it as cotton purchased by appellant for said partnership; and that, without its consent or knowledge, he removed same from the yard in Atkins to Morrilton, and pledged it to the First National Bank of Morrilton for $1,500, with the felonious intent of depriving said partnership of it. The State introduced testimony tending to support that theory.

The theory of the appellant was that he borrowed money from W. M. G-odbey & Sons with which to buy cotton for himself, with the understanding that he should receive for his services the profits realized from the sale thereof, and that he had a right to remove it and sell it at his will. Appellant introduced testimony tending to support his theory.

According to the undisputed proof, appellant removed twenty-two bales of the cotton purchased with money received from W. M. Godbey & Sons, without its consent or knowledge, from the cotton-yard in Atkins to the compress in Morrilton, and pledged same to the First National Bank of Morrilton to secure a loan of $1,500.

Appellant’s first contention for a reversal of the judgment is that he acquired an interest in the cotton by virtue of his agreement with W. M. Godbey & Sons to receive for his services all the profits which should be realized from the sale thereof, and that the joint interest thus acquired carried with it the right to possession, to sell or pledge same, without being -guilty of larceny. Appellant requested an instruction to that effect, which the court refused to give the jury, over appellant’s objection and exception.

Appellant is mistaken in his conclusion relative to the law applicable to the case. The right to receive profits to be realized from the sale of the cotton as compensation for his services only entitled him, as a matter of law, to a part of the proceeds when s-old for á profit, and not to a property interest in the cotton itself. The right of possession, to sell or pledge the cotton, did not follow as a necessary result from the agreement to receive the profits from the sale thereof for his services. The questions of who owned the property, who had the possession thereof, and the right to sell same, were questions of disputed fact.

The testimony introduced 'by the State tended to show that the space in the cotton-yard where same was put was contracted for by W. M. Grodbey & Sons and that the sale of the cotton should be supervised by Wylie Grodbey, a member of said partnership. The testimony introduced by appellant tended to show otherwise. Appellant is bound by the adverse finding of the jury on these disputed questions of fact.

Appellant’s next contention for a reversal of the judgment is that the trial court erred in refusing to give his requested instruction No. 4, in the form requested, which is as follows: “Larceny is the felonious stealing, taking and carrying, riding or driving away the personal property of another. To constitute the crime of larceny there must be a felonious taking and a felonious carrying away. The word ‘felonious’.means that there was no color of right or excuse for the act, and that the intent must be to deprive the owner permanently of his property. ’ ’ The court modified the instruction, and gave it as modified, over the objection and exception of appellant. The modification consisted in inserting the word “lawful” before the word “color,” and striking out the word “permanently,” which modification made the last sentence in the requested instruction read as follows:

“The word ‘felonious’ means that there was no lawful color of right or excuse for the act, and that the intent must be to deprive the owner of his property.”

Inserting the word “lawful” was a correct modification of the right or excuse for appellant’s act in removing and pledging the cotton. Of course, the exercise of an unlawful color of right or excuse would not and could not justify the act. Appellant argues, however, that striking out the word “permanently” had the effect of depriving him of his defense to the effect that he only intended by pledging the cotton to deprive W. M. Grodbey & Sons of it until he could get a fair settlement out of it for his services. We do not understand that appellant claimed that he intended only by moving and pledging the cotton to deprive W. M. Godbey & Sons temporarily of same, but that be bad tbe right to do so 'because he, and not W. M. Godbey & Sons, owned the cotton. He testified that he owned the cotton, and that W. M. Godbey & Sons loaned him the money to bny it, and that the title to same was in him, and not in W. M. Godbey & Sons. The issue joined was who owned the cotton, the right to remove and dispose of same being dependent on who had the title thereto. The real and only issue in the case was whether the .cotton was bought for W. M. Godbey & Sons or whether it was bought by appellant for himself, with money borrowed from W. M. Godbey & Sons.

Appellant’s next contention for a reversal of the judgment is that the court erred in refusing to give his requested instruction No. 5, which is as follows:

“If you find from the evidence in this case that W. M. Godbey & Sons advanced money to the defendant, Patterson, with which to purchase cotton, charging him with such advances on their books, and permitted him to sell said cotton from time to time and apply the proceeds thereof on said account; and if you believe from the evidence that the defendant, Patterson, under his contract with Godbey & Sons, would be responsible and have to bear any and all losses on the purchase and sale of said cotton, if any, and would be entitled to all the profits made on said cotton, then the court instructs you he would not be guilty of larceny in this case, even though you may believe from the evidence that he sold or otherwise disposed of the twenty-two bales of cotton in controversy with the intent to defraud them.”

Appellant argues that this request covered his theory of the case, and that he was entitled to have his theory submitted to the jury. The effect of this instruction was to .tell the jury that, if appellant borrowed the money and bought the cotton for himself, the disposition thereof could not and would not amount to larceny, although his intention in removing and pledging same was to defraud W. M. Godbey & Sons. This theory of the case was covered by instruction No. 6 given by the court, and error was not committed in refusing to give another instruction presenting the same theory. Appellant advances the argument that instruction No. 6 given by the court did not cover his theory because it limited the issue to the title or ownership of the cotton, and thereby ignored the theory that, if .appellant acquired lawful possession thereof and afterwards pledged same with the felonious intent of depriving W. M. Glodbey & Sons of it, he would be guilty of embezzlement, if guilty of any crime, and not the crime of larceny, for which he was indicted and tried. The issue was properly limited to the ownership of the cotton under the testimony in the case, for the testimony of neither party tended to show that appellant acquired the lawful possession of the cotton and afterwards converted it to his own use with intent to deprive W. M. Grodbey & Sons of it.

Appellant’s last contention for a reversal of the judgment is the refusal of the trial court to permit the witness, Bruce Medlock, to testify that Patterson offered to sell him the cotton for 19^4 cents. In order to show bad faith on the part of appellant, the State introduced testimony to the effect that he offered to sell the cotton for I814 cents, which was considerably below the market value, the purpose being to' get it out of the way of W. M. Glodbey & Sons. It is a well-established rule of evidence that the State may prove statements made by a defendant tending to establish his guilt, but the rule is also well established that the defendant cannot, in rebuttal of such testimony, introduce self-serving statements made by him tending to show his innocence. The statements appellant made to Bruce Medlock were in the nature of self-serving declarations, and the court properly excluded them.

No error appearing, the judgment is affirmed.

KiRby, J., dissenting.


text:
    St. Louis-San Francisco Railway Company v. Angle.
    Opinion delivered April 1, 1929.

      E. T. Miller, E. L. Westbrooke, Jr., and E. L. West-brooke, for appellant.
   Humphreys, J.

This is an appeal from a judgment of $50 obtained by appellee against appellant in the circuit court of Lawrence County, Western District, on appeal from the court of a,.justice of the peace, for killing his dog, in February, 1928, by negligently running over him with an extra freight train, On its sidetrack in Black Rock, Arkansas.

Appellant contends for a reversal of the judgment upon the ground that the statutory presumption of negligence on its part, arising on account of the dog being found dead on its track, was overcome by the undisputed testimony of its witnesses. At the conclusion of the testimony appellant requested an instructed verdict in its favor, upon the theory advanced now for a reversal of the judgment, which was refused by the court, over appellant’s objection and exception.

The dog was found after daylight on the morning of February 28, 1928, lying on the sidetrack paralleling the main track, which ran north and south through Black Rock. His head was lying inside of the east rail and his body opposite the head on the outside thereof. His head had been severed from his body, and there was nothing about the body or head to indicate that he had been struck by the cow-catcher, or dragged from the place where killed. Only one train, an extra freight train No. 4015, entered and left the sidetrack during the preceding night. This train entered the sidetrack about 1:30 o’clock a. m. for the purpose of allowing a fast freight train, No. 135, to pass on the main line, and left, proceeding northward, immediately after the fast train passed. The .enginemen operating the extra freight testified that the headlight to their engine was on and the bell ringing, and that they were keeping a lookout as they headed into as well as when they pulled off the sidetrack, and that they did not see a dog or strike one with any part of the engine. They also testified that it would have been impossible for the fast southbound freight train to have struck and thrown the dog under the train standing on the sidetrack and to have left him in the position he was found.

There is no conflict in the testimony, as we read it, and the only conclusion that can be reached from a consideration thereof is that the dog was killed while trying to pass under the extra freight train, either while entering or leaving the sidetrack. The statutory presumption of having negligently killed the dog was overcome by the undisputed proof, and the trial court should have instructed a verdict for appellant. Chicago Rd. Co. v. Daniel, 169 Ark. 23, 273 S. W. 15; Fowler v. Hammett, 162 Ark. 307, 258 S. W. 392.

On account of the error indicated the judgment is reversed, and the cause is dismissed.


author: Kirby, J.

text:
    Hopewell School District No. 28 v. Bush.
    Opinion delivered April 1, 1929.

      E. II. Tharp, for appellant.

      Cunningham & Cunningham, for appellee.
   Kirby, J.

The sole question presented for determination by this appeal is whether a sohool district, in exercising the right of eminent domain, condemning’ lands for school purposes, acquires the entire interest, the fee, in the lands condemned, or only the right to its exclusive use for such purposes so long as it may he so used.

Act 82 of the Acts of the. 1927 Legislature authorizes the exercise of the power of eminent domain hy the school districts in the State, and provides the procedure therefor. In School District of Ogden v. Smith, 113 Ark. 530, 168 S. W. 1089, this court, construing a like provision in an aiot of the Legislature of 1913 for the condemnation of lands for school purposes, held the power conferred was similar to the power of eminent domain conferred upon railroad corporations.

In Rinke v. Union Special School District, 174 Ark. 59, 294 S. W. 910, a case wherein land was condemned for a site for a school building and grounds, the court held the rule for the measure of the owner’s compensation for the land condemned was as declared in Fort Smith & Van Buren District v. Scott, 103 Ark. 405, 147 S. W. 440, “the market value thereof at the time of the taking, for all purposes, comprehending its availability for any use to which it is plainly adapted, as well as the most valuable purpose for which it can be used anci will bring most in the market.”

The interest in the property to be taken or condemned in this proceeding was expressly stated to be the fee, and no lesser estate would be sufficient to satisfy the purpose of the taking — a site for the school building- — and the price to be paid or the compensation for the land condemned was the full market value thereof for all purposes, and the court erred in not making an order condemning the said land for school purposes and vesting the title thereto, the entire interest, the fee, in the school district, in accordance with the statute. See 15'Cyc. 1020, and 20 C. J: 1223, § 583.

The words “for school'purposes” in the statute are not a limitation upon the interest or estate taken in the lands condemned, but upon the right to exercise the power of eminent domain.

For the error designated the judgment is reversed, and the cause remanded with directions to enter a judgment vesting the entire interest and fee in the lands condemned in the school district.


text:
    Jackson v. State.
    Opinion delivered April 1, 1929.

      Bogle & Sharp, for appellant.

      Hal L. Norwood; Attorney General, and Robert F. Smith, Assistant, for appellee.
   Kirby, J.

This appeal is prosecuted from a judgment of conviction of manslaughter.

It appears from the testimony that appellant, about 20 years, and deceased, whom he killed, about 18 years of age, had been and were friends up to the time of the difficulty. Appellant was working* at the soda fountain in the drugstore on a particular evening, assisting one Frank Henderson. They were preparing to close up, and had washed and shined the soda fountain, when Clay-comb came in, about 10:30. According to Henderson’s statement, he reached over the fountain to get a glass of water, and drew it. Billy, appellant, said, “Don’t get that water, we have just cleaned up the fountain, and don’t want to get it dirty.” He paid no attention to Billy, who then walked from behind the counter and slapped the glass out of his hand, when Leonard caugnt his arm, and Billy worked loose. Deceased said, “I will show you I will get a glass of water,” swearing a little. Witness was behind the soda fountain,' and saw Billy step back behind and then come out again. He heard the lick, and the boy hit the floor. Billy said, “Now get up,” when he looked over the fountain to see if he was going to get up, and he did not move. “I said, ‘You have killed that ’boy.” Witness then sprinkled water in his face, and it did not revive him. He. tried to lift him up, and asked him if he was hurt badly, and he only groaned, and put his hand to his head, and he laid him back on the floor, and had a'doctor called immediately.

The Jackson boy struck him with a baseball bat that had been there ever since the drugstore had opened up, and was used for packing the ice around the ice-cream cans. The bat was back by the refrigerator. “He just walked from out in front of the fountain’ back behind the counter where it was, which was about ten feet. The Claycomb boy was standing out in front of the fountain. The fountain was a ten-foot fountain, so it was somewhere around twenty feet or more that he had to walk to go get the bat and back out where the Claycomb boy was standing. After Jackson told the Claycomb boy to get up, he backed back in the front door, and stood there and gazed at him. He then walked out of the door. I don’t know what became of the bat.”

Witness said that he had no thought of any trouble on account of the water. ' He just reached over to get the water, and appellant told him not to get it, and when he did, Billy walked back over there by the wall and got the baseball bat, and struck him. Witness had seen the boys scuffling around in front before, and thought they were good friends. The Claycomb boy loafed around the cafe and up and down the street where Billy was working, as most of the hoys did.

The deceased’s skull was crushed from the blow, and he died without regaining consciousness.

There was a defense of insanity, and the testimony tended to show that appellant had had a severe case of typhoid fever a few years before the occurrence; that he had been in an automobile wreck a year or so before, wherein he was knocked senseless and remained unconscious a week or more, and many witnesses thought he had not recovered from that injury; that his disposition appeared to be changed thereafter; that he became sullen and morose and morbid; was always nervous, and easily irritated.

Dr. Ponder, one of the experts, diagnosed his trouble resulting from the automobile accident as closely related to epilepsy, and, in explaining its effect, mentioned that Caesar and Napoleon were epileptics., but no one would regard that they were crazy or defectives. The court then asked, “What about Hickman?” to which the doctor replied, “I think he was a singular inferior.” On being asked the question, “What about Leopold and Loeb?” he replied, “They were singular inferior; * * * they were lacking in the emotional or moral field; they could not control their emotions and morals.” No objection was made or exceptions saved to this testimony, however.

The prosecuting attorney, Hon. Guy Williams, in closing- the argument, made the following statements, to which exceptions were saved:

“You have all heard about the cases of Leopold and Loeb, and also about Hickman, who killed the little girl; they all pleaded insanity, and, like this case, whenever a defendant has no other defense, then he pleads insanity. Mr. Sharp: We object to the statement of the prosecuting attorney making reference to other cases. Court: The prosecuting attorney may express an opinion about other cases, but he cannot go into details. These cases that he has mentioned have nothing to do with the guilt or innocence of the defendant in this case, for that is for the jury' to say, whether or not the defendant is guilty of the charge laid in the indictment.”

It is insisted for appellant that the court erred in asking the expert witness about Hickman, Leopold and Loe'b, but no objection was made to these questions and answers nor exceptions saved, and this assignment cannot therefore be considered here. Allen v. State, 175 Ark. 284, 298 S. W. 993; see also Sullivan v. State, 161 Ark. 19, 257 S. W. 58; Sneed v. State, 159 Ark. 65, 255 S. W. 895.

Neither was error committed in the comment or statement of the prosecuting attorney in his closing argument. The court admonished the jury that the cases, mentioned by the prosecuting attorney had nothing to do with the guilt or innocence of the defendant in this case, “and that is for the jury to say whether or not the defendant is guilty of the charge laid in the indictment.’'’ It was but an expression of opinion of counsel in his argument, which was hardly calculated to arouse the passion and prejudice of the jury, and could not have had any such effect, as the court told the jury that it had nothing to do with the guilt or innocence of the defendant, which was a question solely for the jury’s determination. Adams v. State, 176 Ark. 916, 5 S. W. (2d) 946, and cases cited therein.

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


author: Mehaffy, J.

text:
    Missouri Pacific Railroad Company v. Horner.
    Opinion delivered April 1, 1929.

      Thomas B. Pryor, .Vincent M. Miles and Thomas B. Pryor, Jr., for appellant.

      Pave Partain and Sbarbird & Starbird, for appellee.
   Mehaffy, J.

Appellee brought this suit in the circuit court, alleging* that in January, 1927, lie was in the employ of the appellant, at the particular time loading wheels on freig’ht cars, and, on the 13th day of January, was ordered and directed by his immediate foreman and boss in said work to quit that work and move a load of air-brake cylinders about 100 feet to the place where they should be stacked; that the cylinders were large, heavy machinery, each separate piece weighing about 300 pounds; that it was a .job for two men, and that, when appellee was ordered to do this work, he asked for a helper, and the foreman promised to furnish him a helper.

The cylinders had to he moved across a crane track which had just been put in, and along which there were soft and muddy places, and across a railroad track to a platform, upon which the same were to he lifted and stacked. He alleged that it was raining at the time, and no danger was apparent; hut, whatever dangér there was, was obscure. He had never been employed in moving machinery of the kind and weight, and did not foresee any danger, but he knew if he refused to do the work alone that he would lose his job. He moved several of the cylinders to the platform, and was engaged in moving one across the crane track, when, on account of the wet, muddy and dangerous condition of the ground, track and foundation, and the weight and form of said machinery, the same slipped into a ditch, in and under the crane track, and in the emergency, in trying to save himself and the machinery and prevent the same from falling into the ditch and in and under, the crane track, plaintiff’s back and muscles and ligaments thereof were wrenched, sprained and torn, and plaintiff was permanently injured: He was afterwards put in the bolt room, where the work was light, but was required to sign a release of liability for his injury. He believed that he was not injured very much, and would soon recover, and signed the release; but, instead of recovering and being able to work, he grew rapidly worse. He spent about three weeks in the hospital, attended by the company doctor. That, before the injury, plaintiff was able to do the work which any other man could do, but since his injury he is only able to do very light work, and no work that requires strength in his back.

The appellant answered, denying all the material allegations of the complaint, and pleaded in bar the release signed by appellee, and pleaded assumed risk.

There was a judgment for the appellee, and appellant filed a motion for a new trial, which was overruled, and this appeal is prosecuted to reverse said judgment.

No one saw the accident except appellee himself, and there is therefore no testimony except his as to how it occurred. He testified that on the day of the injury he was helping load wheels, and that his foreman, Mr. Eeeder, came over and said to him, “Go over there and move some airbrake cylinders.” There were eight of them to be moved, and they weighed 300 pounds apiece. They had to be moved across a crane track, and put on a platform. He had been working about 30 feet from the place where the cylinders were'to be moved. He asked his foreman for help, and the foreman told him to go on to work and he would get him some help, and he started to work moving the cylinders; got three over, and started with the fourth one. It got down where they had dug out for this track, and it was soft there. They had not quite filled up around it. It was filled with cinders, and they had settled down after the rain. He started across the track with this cylinder, and it slipped down into this hole. They had started filling the hole the day before. .It was soft around that place. When he got this fourth one over to this place and started across, it slipped off down in this hole. He went to one side and lifted it up, and then to the other side. It had been raining, and the ground was wet and slick. When he started out with the other side it threw him around and hit his back against this concrete. It hurt him pretty bad, and he started to the office.

The above is all the testimony there is in the record as to how appellee received his injury.

Appellant first contends that the evidence is not sufficient to sustain the verdict. In other words, that the evidence of the appellee himself failed to show any negligence on the part of the appellant.

The appellee testifies that the cylinders, he thought, weighed 300' pounds, but he admitted that he had not weighed them.

The foreman testified tha,t the cylinders were round, and would roll; that they were 46y2 inches in length and 12 inches in diameter, and weighed 225 pounds.

The evidence shows that the cylinders were to be moved about 50 feet, and the appellee had actually moved three of them:, and, in moving the fourth one, the ground was wet and slippery, and it slipped into a hole.

There is no dispute about the appellee being injured. There are many injuries to persons and property for which the law furnishes no redress, and proof of injury alone, without proof of negligence causing the injury, does not entitle one to recover. One is entitled to recover for negligence only when the negligence complained of causes the injury. The negligence complained of principally in this case is that the appellee asked for a helper, and appellant’s foreman promised him a helper, but did not furnish one, and that, because he did not furnish the helper, appellee was injured. As to the place to work and the condition of the ground, there is no evidence tending to show that there was any negligence as to these things. The negligence, if any, was in failure to furnish a helper, because, on account of the condition of the ground and the weight of the cylinders, one man could not do the work in safety.

In the case of Choctaw, O. & G. R. Co. v. Jones, 77 Ark. 367, 92 S. W. 244, this court said: “The liability of the master for injuries to servant rests primarily on the broad principle of law that where there is fault there is liability, but where there is no fault there is no liability. ’ ’

The court in the above case also said, in speaking of the law as to the assumption of risk:

“The rule here seems to be that one who, knowing and appreciating the danger, enters upon a perilous work, even though he does so by order of his superior, must bear the risk. In other words, even though he may perform the work unwillingly under orders from his superior, yet, if there was no physical compulsion, and if he knew and appreciated the danger thereof, he will in law be treated as having elected to bear the risk, and cannot hold the employer liable if injury results. ’ ’

In tlie instant case, so far as tlie conditions of tlie ground and place where appellee had to work are concerned, they were as well known to him as they were to the master. They were not only well known, bnt the condition and danger, if any, were obvious. Bnt he bases his right to recover on the fact that these things made a helper necessary, and that the foreman ordered him to proceed with the work] and that he would get him a helper. The cylinders were round; the undisputed proof shows that they could be rolled. The testimony of the appellee himself shows that they were to be removed about 50 feet to a platform, and then lifted on to the platform and stacked. It is conceded that there should be two men to lift them on the platform where they were to be stacked.

Appellee made no complaint to the foreman about the condition of the ground or the weight of the cylinders. His only complaint was that he needed a helper. And, even if he complains, about the condition of the ground or the place where he had to work, this risk, if any, was so obvious that he was bound to know all about it, and he therefore assumed the risk. His testimony, as we have said, is the only testimony as to how the injury occurred, and he says that the cylinder slipped into the hole, and he moved one end of it on one side of it and then went to the other to move that; that it had been raining, and the ground was wet, and, when he started to move it, it threw him around. Just how the cylinder threw him around is not stated. He evidently slipped, or the cylinder slipped, and the fact that he had hold of it threw him around, as he says, and caused the injury.

Appellee contends that, if he had had a helper, as the foreman promised him, the injury,would not have occurred. There is no evidence tending to show what a helper could have done to prevent the cylinder from slipping. As we have said, the undisputed proof shows that the cylinders were round; that they could be rolled, and he had already moved three of them without any injury, and he does not undertake to show by evidence what a helper could have done that would have prevented the injury. If there was anything that a helper could have done in assisting in removing it that would have prevented the injury, the appellee could show that, and he offered no evidence whatever to show it.

It is unnecessary to set out the other evidence, because we have reached the conclusion that the appellee’s evidence, the only evidence as to how the injury occurred, is not sufficient to support the verdict.

The questions of assumed risk and safe place to work have been before this court so many times that we deem it unnecessary to extend this opinion by citing and commenting- on the authorities. The rule is well settled in this State that the master is required to use ordinary care to furnish a reasonably safe place to work, and it is also well settled that the servant assumes the obvious risks and risks about which he knows. This court has recently said:

“In the application of the doctrine of assumption of risks, a distinction must be also made between those cases where the injury is due to one of the ordinary risks of the service and where it is due to some altered condition of the service, caused by the negligence of the master. The servant is presumed to know the ordinary risks. It is his duty to inform himself of them, and, if he negligently fails to do so, he will still be held to have assumed them.” Ward Furniture Mfg. Co. v. Weigand, 173 Ark. 762, 293 S. W. 1002.

The court in the above case also said: “In other words, the defense of assumed risk rests on the fact that the servant voluntarily, or at least without physical coercion, exposed himself to the danger, and thus assumed the risk thereof. Having done this of his own accord, he has no right, if any injury results, to call on another to compensate him therefor, whether he was guilty of carelessness or not.”

In the instant case the appellee voluntarily assumed this risk. He did not ask for any change in the place where he was to work; he did not complain of the place where he had to work. As we have said, his only complaint was that he was promised a helper, and the failure to furnish a helper was the cause of his injury. But, before he would be entitled to recover for failure to furnish a helper, the burden is on him to show by the evidence that such failure caused or contributed to the injury. This the evidence does not show.

Appellant also contends that instruction No. 1 should not have been given, and, under the evidence as developed in the trial, this instruction was not proper. It was an instruction about the duty of the master to furnish a safe place to work, and, as there was no complaint about the place to work, and especially because the appellee knew all about it and assumed the risk, this instruction, under the circumstances, should not have been given.

Appellant also contends that the instructions requested by it and refused by the court should have been given, but we have carefully considered all of the instructions given and refused, and have reached the conclusion that, except instruction No. 1, given at the request of the plaintiff, there is no error in the instructions.

The judgment of the circuit court is reversed, and the case remanded for a new trial.


text:
    McGraw v. Calhoun.
    Opinion delivered April 1, 1929.

      Williamson & Williamson, for appellant.

      R. W. Wilson, W. F. Norrell and A. J. Jolmson, for appellee.
   McHaney, J.

On October 14, 1927, appellee, D. A. Calhoun, entered into a contract with F. G. Smart Motor Company of Pine Bluff, Arkansas, for the purchase of “one Ford type TT, model 1927, motor number 14383166” automobile and one Nabors trailer, for a total consideration, including insurance, accessories and repairs, of $322.60, of which $2-5 was paid cash, and for the remainder appellee executed eight promissory notes for $37.20 each, the first due November 15,1927, and one due on the 15th of each month thereafter, up to and. including June 15, 1928. Each of said notes recited that it was given in part payment of the balance due on one Ford automobile of the above number, and one Nabors trailer, and that the title to the said property should remain in the motor company until payment in full had been made, and that, if default is made in the payment of one, all should become due and payable. The sales contract, in addition to retaining title in the property and the provision with reference to default as set out in the notes, further provided that, “in any such event, seller, with the aid of any other person or persons, may take immediate possession of said motor vehicle, wherever it may be found, and purchaser does hereby waive any right of action whatsoever against seller, his agents or representatives, growing out of the repossession or retention of said motor vehicle; and purchaser does hereby forfeit any and all payments made on said motor vehicle. Purchaser agrees that seller may sell said motor vehicle so retaken at public or private sale, with or without notice to purchaser, and with or without having said motor vehicle at the place of sale, upon such terms and in such manner as seller may determine * * V’ It is further provided, “until fully paid for, the use of said motor ^ghi'cle by the purchaser is at the will and sufferance of the seller, who, upon demand, shall he entitled to the possession of said motor vehicle.” The agreement further provided that it and the notes constituted the entire 38nfe'^(?i?t'6eti&''een'i>the parties, and that same could not he waived or modified unless written upon or attached to bhe.QobtrfefM--3 (1281 tou

f§§@45;t0f[sug^iii|e^#-§opas^Mite- "i<WbfirMp©ñoaipp®Iáee Mp/tXyil@©in!pqny,iar^íth§ffiffiiífftQi9líitóiÍBiit@dgthi@'''«í!t<Maííiií replevin against appellant, the Smart Motor Company, and Cogbill. The ciase was tried before the court sitting as a jury, and the court found that, “under the* terms of the contract, the defendant, J. D. Cogbill, had the right to repossess the truck and trailer at the time this was done. But he was acting’ only as the agent of the Smart Motor Company, and, in no event, could he then sell the truck at private sale to McGraw.” The court further found that, upon payment of the balance due the next day, appellee was entitled to the immediate possession of the truck and trailer, and that $900 was a reasonable compensation to Calhoun as damages for the unlawful detention of the truck by appellant, which should be credited with the amount of appellant’s bill, plus the $190 paid the Smart Motor Company, in the total sum of $583.77. The court further found the value of the car to be $600. Judgment was entered against appellant and the sureties on his retention bond for the car or its value of $600, and the additional sum of $316.23 for damages for detention of the car, over and above the amount of appellant’s bill for supplies and the'amount paid the Smart Motor Company. In other words, appellant found himself, at the conclusion of the lawsuit, with a judgment against him for $916.23, which might be reduced $600 by the delivery of the car to appellee.

We think the court correctly found that Cogbill rightfully repossessed the truck and trailer at the time it was repossessed, but that the court erred in its next finding that, “in no event, could he then sell the truck at private sale to McGraw. ”

As we have seen, the title to the property involved in this litigation was at all times in the F. G. Smart Motor Company. The terms of the contract plainly provide, both in the contract and in the notes, that, upon default in the payment of any of said notes, the remainder thereof shall immediately become due and payable at the election of the holder, and that immediate possession of the property may be had, and that the property may be immediately resold at either publics or private sale, with or without notice to the purchaser. The undisputed facts show that the property was repossessed and sold, to appellant by an agent of the seller, who bad authority to repossess the car, and ample authority to resell the same. Therefore, when the property was repossessed under the power contained in the sales agreement, the seller, through its authorized agent, Cog*bill, had the power to resell same and convey an absolute title to the purchaser. The title at all times remained in the Smart Motor Company until the appellee had performed the condition set out in the contract, that of paying his notes in' accordance with the terms thereof, and, having repossessed the car and sold it to appellant, after default, he acquired the legal title and the absolute right of possession. The ap-pellee never acquired the legal title to the property. He only held the possession conditionally.

In Home Fire Ins. Co. v. Wray, 177 Ark. 455, 6 S. W. (2d) 546, we held that the vendor of chattels may deliver the possession thereof to the vendee on condition that title thereto shall remain in the vendor until the whole -purchase price is paid, and that a subsequent purchaser of such chattels from the vendee, though without notice of such reservation, acquires no title as against the vendor, and that such reservation of title need not be in writing, but may rest wholly in parol.

In Meyer v. Equitable Credit. Co., 174 Ark. 575, 297 S. W. 846, we held to the same effect; and many other cases might be cited along the same line; as, for instance, see National of Ark. v. Interstate Packing Co., 175 Ark. 341, 299 S. W. 34.

We think there can be no question as to Cogbill’s authority to sell the car to appellant after he had repossessed it for the Smart Motor Company. He was the general agent of the Smart Motor Company in Star City. He personally had sold and delivered the property originally to the appellee, Calhoun, and himself signed the -sales agreement for the Smart Motor Company. It was in Ms line of business to sell motor cars, and to collect therefor, and it is significant that the Smart Motor Company is not questioning his authority to act for it in repossessing the car and selling it to appellant.

We held in Passwater-Chevrolet Co. v. Whitten, 178 Art. 136, 9 S. W. (2d) 1057, that, after the property had been repossessed by the company and sold to another, the purchaser could not maintain replevin, as he had lost title to the car. We there said: “In order to maintain an action to recover the possession of personal property or to recover damages for the conversion of such property, plaintiff must show title in the property so wrongfully taken or converted. ’ ’ Citing the cases of Security Bank & Trust Co. v. Bond, 132 Ark. 592, 201 S. W. 820, and Brown & Hackney v. Lovelace, 152 Ark. 541, 239 S. W. 21. In that case appellees voluntarily surrendered the car and permitted same to be sold to an innocent purchaser, and we held that, by so doing, he lost whatever general or special ownership he had in the property, together with the right to the possession thereof. In this case, the facts are somewhat different regarding the repossession of the car, but the lower court has found, on conflicting evidence, that the car was rightfully repossessed, and its finding in tliis regard is as binding on this court as the verdict of a jury. Having rightfully repossessed the car, it had the absolute right to resell the same, which it did through its authorized agent to appellant, who thereby acquired the legal title and the right of possession.

It necessarily follows that appellee could not maintain replevin against appellant for the oar, and that the judgment of the court awarding damages in favor of ap-pellee and for possession of the car or its value was erroneous, and must be reversed. It appears that, on rendition of the judgment of the court, the appellant delivered the possession of the property to appellee, who has had the possession, and use thereof since that time. The cause will be remanded, with directions to enter a judgment in favor of appellant for the possession of the property, plus its usable value for the time it has been wrongfully held by appellee, in accordance with the rule announced in the recent case of Ætna Ins. Co. v. Mills, 176 Ark. 684, 3 S. W. (2d), p. 999, or its value, which the court found to be $600 at that time, with interest at 6 per cent.


text:
    Allen v. Bank of Eureka Springs.
    Opinion delivered April 1, 1929.

      Festus 0. Butt, for appellant.

      Claude A. Fuller, for appellee.
   McHaney, J.

Appellee brought this action against appellant, in the chancery court, on two promissory notes for $500 each, executed and delivered to it by the National Devolving Sign Company, a corporation, acting through its president and secretary; one dated February 9, 1927, due six months after date, with interest at 10 per cent, from date, and the other dated May 28, 1927, due ninety days after date, with interest at 10 per cent, from date. The last-mentioned note was indorsed by the president and secretary. The basis of the action against appellant is that he and his brother, Samuel Allen, as partners, were the owners of $78,000 of stock in the sign company, and that the president and secretary thereof were authorized to borrow this money from the bank on the express agreement of the stockholders to be responsible for the money thus borrowed, in proportion to the amount of stock held by them, and that appellant, being a partner with his brother in the ownership of the 78 per icient. of the stock, was liable to the bank for 78 per cent, of the amount of the notes, it being alleged that the sign company was insolvent.

The July term of the chancery court convened on July 17, and adjourned on that day to November 8. This suit was filed on August 24. Summons was had upon appellant, and the case stood for trial on November 8. Appellant made no answer or defense to the action, because, as alleged in the motion for a new trial, he was acting under the mistaken belief that the court would convene on the 18th 'of November, instead of the 8th. Only one witness testified in the case, the substance of which is that the loan was made by the bank, not on the strength of the credit of the corporation itself, but by reason of the alleged agreement of the stockholders, as alleged in the complaint, to stand responsible for the notes in proportion to the amount of stock held by them, and that the money so borrowed was used by the corporation by way of organization and other expenses incident thereto, and about $500 thereof was spent in field-work in an effort to obtain business. The court entered a decree against appellant for the amount sued for, hence this appeal.

The National Revolving Sign Company was not made a party to the action, although it executed the notes through its officers, 'and is the only party to the instruments, as disclosed by the notes themselves, except the one that was indorsed by the president and secretary. Appellant was not an indorser of the note in writing, and there is no allegation or proof that he executed a separate instrument guaranteeing the payment of said notes. The complaint alleges an agreement of appellant to pay a part of the debt of the corporation, which is within the statute of frauds. Since the complaint does not allege whether .the agreement was oral or written, the- presumption is indulged against the pleader that it was in writing, and in such a case profert thereof must-be made, else no cause of action is established. In other words, where a pleading does not allege that a ¡contract sued upon is in writing, and it is such a contract as is required to be in writing, under tibe statute of frauds, to hind the defendant, it is presumed to he in writing, and failure to make profert defeats the cause of action. Duncan v. Clements, 17 Ark. 279; McDermott v. Cable, 23 Ark. 200; Hurlburt v. Wheeler & Wilson Mfg. Co., 38 Ark. 594; Gale v. Harp, 64 Ark. 462, 43 S. W. 144; and Euper v. State, 85 Ark. 223, 107 S. W. 179.

In the McDermott case, supra, the court used this language:

■ “The contract set up in the plea is not alleged to he in parol;.and, being such as, by the statute of frauds, is required to be in writing, the presumption is that it is so; and, being in writing, it should have been pleaded with profert, under the provisions of our statute, in order that the court, in the exercise of its appropriate function —the construction of a written contract — might determine whether the contract furnished the defense claimed under it.”

'Therefore, no profert of the written instrument having been made, appellee’s cause of action fails. Moreover, the real basis of appellee’s action was the two promissory notes. They were exhibited with the complaint, and the effect of the complaint is a suit upon written instruments, with an attempt to ingraft thereon a parol agreement to hold appellant liable, although not a party to the instrument. This would be in violation of one of the fundamental rules of evidence against the varying of the terms of a written instrument by parol testimony.

Therefore the judgment must be reversed, and the cause of action dismissed.


author: Per Curiam.

text:
    Caudle v. Turner.
    Opinion delivered April 1, 1929.

      R. A. Rowe, for petitioner.
   Per Curiam.

'Counsel for appellant invokes a rule against the clerk of the court because he refused to file a purported transcript in the above entitled case. The clerk refused because the transcript was not tendered to him within sis months next after the rendition of the judgment in the circuit court, as required by § 2140 of Crawford & Moses’Digest.

Counsel for appellant claims the delay was occasioned by the circuit court in failing sooner to overrule his motion for a new trial. The time for appeal runs from the rendition of the judgment, and not from the overruling of the motion for a new trial. Appeals must be taken within six months, unless the person applying therefor was an infant or of unsound mind at the time of the rendition of the judgment, order or decree. Applicant for the appeal in this case does not icome within the exceptions, and no authority is given the court to extend the time. Smith v. State, 48 Ark. 148, 2 S. W. 661; Moore v. Henderson, 74 Ark. 181, 85 S. W. 237; and Evans v. St. L. I. M. & S. R. Co., 76 Ark. 266, 88 S. W. 994.

As applying the rule, see also Chatfield v. Jarrett, 108 Ark. 523, 158 S. W. 146; Oxford Telephone Mfg. Co. v. Arkansas National Bank, 134 Ark. 386, 204 S. W. 1140; and Durben v. Montgomery, 144 Ark. 153, 223 S. W. 17.

The motion for the rule will therefore be denied.


author: Per Curiam :

text:
    Henson v. Dodge.
    Opinion delivered April 1, 1929.
   Per Curiam :

The automobile was delivered to the defendant upon his giving the bond required by statute while the replevin suit for it was pending in the circuit court. The case was transferred, without objection, to the chancery court. The chancellor, upon application of the surety on the delivery bond of the defendant, transferred the custody of the property from the defendant to a third person. The chancery court did not exceed its jurisdiction, although it might be an erroneous exercise of jurisdiction. Therefore the petition for a writ of prohibition will be denied.