text:
    Brin Brothers v. Lyon Brothers.
    Opinion delivered June 6, 1921.
    1. Sales — duty to inspect within reasonable time. — Where the buyer on receipt of goods wrote to the seller that they had been prematurely shipped and would not be opened until the buyer’s customers got in their cotton, and, upon receipt of the seller’s letter in response written a month lately the buyer opened the goods and rejected them as unequal to the sample, the seller can not contend that the buyer should have inspected the goods earlier.
    2. Account stated — acquiescence in account. — Where, on receipt of goods .purchased by sample, the buyer stated that the goods were shipped prematurely, and would not be opened for some time, such letter did not constitute an acquiescence in the seller’s statement of the account nor entitle the seller to recover as on an account stated, though the goods were inferior to sample.
    3. Appeal and error — issue not presented below. — An issue of account stated, not presented in the trial court, can not be insisted upon for the first time on appeal.
    Appeal from Faulkner Circuit Court; Geo. W. Clark, Judge;
    affirmed.

      Holland & Edmonson, for appellant.
    1. The evidence is conclusive that the goods were shipped as ordered.
    2. Appellants were guilty of no fraud. It was not the manufacturer of the goods, and the buyers had ample opportunity of inspection within ten days, as stated specifically in the hill rendered, and since the buyer exacted no express warranty, and, there being no implied wraranty as to quality, the maxim “caveat emptor’’ applies, and appellees are liable for the amount sued for. Instructions Nos. 1 and 3, asked by plaintiff, should have been given, and it was error, to refuse them. . They are the law and were covered by none given.
    3. A request for payment and a promise to pay amount to an account stated (21 Ark._420), and instruction 4 for appellant should have been given.
    4. Instruction No. 6, asked' by appellant, should have been given without modification.
    5. Upon the whole case the verdict is against the law and the evidence, and judgment should be entered here for appellant.

      R. W. Robbins, for appellees.
    1. No bill of exceptions was ever filed in this case, and the record is incomplete, and the presumption, upon the pleadings, is that the evidence sustains the verdict. 59 Ark. 178; 126 Id. 118.
    2. Appellants have not filed any proper abstract as required by rule 9, and the appeal should be dismissed. 101 Ark. 252.
    3. No error was committed by the lower court, and the evidence sustains the verdict. The right of the ven-dee to reject goods which do not come up to sample is settled. 143 Ark. 413. No proper exceptions were saved to the instructions by appellant, and the verdict is sustained by a great preponderance of the evidence.
   Humphreys, J.

Appellants, a firm of importers residing in Dallas, Texas, instituted suit against appellees, a firm of merchants residing in Republican, Arkansas, in the Faulkner Circuit Court, to recover $408.47, representing the price of laces and other notions ordered" by appel-lees from appellants on the 5th day of August, 1920, and shipped by parcels post on the 22d day of said month.

Appellees interposed the defense that the merchandise delivered was not equal in quality to the samples exhibited when the order was made, and the return thereof within a reasonable time after discovering the defects.

The cause was submitted upon the pleadings, evidence and instructions of the court, which resulted in >a verdict and judgment against appellants, from -which an appeal has been duly prosecuted to this court.

The evidence adduced on behalf of appellants tended to show that merchandise, corresponding to the samples exhibited to appellees by appellants’ salesman when the order was made,’ on the 5th day of August, 1920, was shipped by appellants to appellees on the 22d day of said month; that subsequently a statement of the account, covering the shipment, was mailed by appellants to appel-lees ; that, on September 10,1920, in response to the statement of account, appellees wrote appellants the following letter:

“We are in receipt of your statement asking us for payment. We call your attention to the fact that when we bought these goods from your salesman we told him that we didn’t need the goods for a while, that we wanted them for our fall business, but you shipped the goods at once.

“This is to advise you that we have the merchandise here in our house, haven’t never looked at it as we didn’t want to open it up until our customers got out some cotton so that they would have some money to pay for what they got. We are going to ask that you give us some time until our customers get some cotton out.” On the 23d day of October, 1920, appellees again wrote appellants as follows:

“Answering your registered letter dated 19th, will say that we have today opened up your merchandise we bought from you, and this is to advise you that they didn’t open up to our satisfaction, as some of the goods seemed to be much cheaper merchandise than we bought.
“O-wing to cotton conditions this fall, we never opened up your goods until a few days ago, and it seems to us also you prefer putting us out of business. This is to advise you that we are today returning to you every dollar’s worth of your goods you shipped us, and as to the future we don’t want to buy anything from you. Goods shipped by express.”

That the price of the goods decreased considerably between the 5th of Angnst and the 29th day of October, 1920.

The evidence adduced on behalf of appellees tended to show .that, when the order for the merchandise was given, on the 5th day of August, it was understood that shipment should not be made until later in the season; that, when the goods arrived, appellees received, but did not open and inspect, them, and, shortly after receiving them, wrote the letter of September 10, 1920, to appellants: that, two or three days before writing the last letter aforesaid, the goods were retained unopened in the store of appellees until two or three days before appel-lees wrote the letter of date October 23, 1920, to appellants; that two or three days before writing the last letter, appellees opened the goods and shipped them back to appellants by express, on the 29th day of said month.

The cause was submitted to the jury upon the theory that appellants could not recover if the goods were inferior to the samples exhibited when the order was made, provided the appellees rejected them within a reasonable time after they should have been delivered under the contract. The instructions given by the court, presenting these questions of fact for determination by the jury, were not objected to by appellants. For that reason, the substance, as well as the form, of the instructions must be regarded as correctly presenting the issues of fact for determination by the jury, involved in the theory upon which the cause was submitted.

Appellants, however, presented instructions which the court refused to give, over their objections and exceptions, embodying the idea that the duty rested upon appellees of inspecting and rejecting the goods within a reasonable time after receiving same, if they did not conform to the samples exhibited when the order was made. We think this theory untenable, in view of the fact that there was evidence tending to show the goods were prematurely shipped, when regarded in connection with, the contents of the letter written by appellees to appellants of date Scomber 10, 1920. In that letter the attention of appellants was called to the fact that, according to the contract, the goods had been prematurely shipped; that they were in the house unopened, and that appellees did not want to open them until their customers got out some cotton so that they would have money with which bo buy them. A direct request was also made in the letter that time be granted them until their customers got their cotton out. So far as the reo-, ord shows, no answer was made by appellants until the 19th day of October. Appellants, therefore, silently acquiesced in the goods remaining in appellees’ store unopened until that date. Appellants’ own conduct clearly estopped them from asking instructions to the effect that appellees were bound to inspect and reject them, if inferior to. sample, within a reasonable time after receiving the shipment. "We think the cause was submitted to the jury upon the correct theory.

Appellants insist that they should have been permitted to recover as upon an account stated; that, on August 22, they presented an account for the goods to appellees, which was not disputed, but, in effect, acknowledged as being correct by appellees in letter of date September 10,1920. "We do not so interpret the letter. The letter informed appellants that the goods had been ordered by agreement for fall trade, and had been prematurely shipped; that they had not been opened and would not be until later. The letter at most was an admission of liability upon condition that the goods should conform to the samples when inspected. The facts surrounding the transaction do not render the account presented on August 22 an account stated. Again, the issue of an account stated was not presented or insisted upon in any form in the trial court, and can not be insisted upon for the first time on appeal. . •

No error appearing, the judgment is affirmed.


source: Caselaw Access Project

author: McCulloch, C. J.

license: Public Domain

text:
    Satterwhite v. State.
    Opinion delivered June 13, 1921.
    Criminal law — bill op review. — The only method of review in crim-nal eases is a writ of error or appeal or a writ of error coram nobis, and a “bill of review” will not lie to procure a new trial after conviction in a criminal case on the ground that the prosecuting witness on whose testimony the conviction was based had recanted her testimony by affidavit after expiration of the term at which judgment of conviction was rendered.
    Appeal from Clark Circuit Court; George B. Hay-nie, Judge;
    .affirmed.

      J. 8. TJtley, Attorney General, Elbert Godivin and W. T. Hammock, Assistants, for appellee.
    1. Tke appellant has no right at this time to ask for and obtain a new trial upon newly discovered evidence. 214 S. W. 44.
    2. A bill of review or motion for new trial for newly discovered evidence must be filed or made during the term, while a bill of review in chancery can be filed only after the term at which the decree was entered. 61 N. E. 337-9. See C. & M. Dig., § 3216. The only remedy is by appeal within sixty days. C. & M. Dig., § 3393; 97 Ark. 116; 96 Id. 145. The appeal comes too late and should be dismissed or judgment affirmed. 136 Ark. 290; 96 Id. 145; 97 Id. 116.
   McCulloch, C. J.

Appellant was indicted by the grand jury of Clark County for the crime of rape and was tried and convicted on a day of the March term, 1919, and sentenced to the State penitentiary for life. He filed in the circuit court .of Clark County, on February 1, 1921, ,a petition denominated as a bill of review setting forth his conviction aforesaid and alleged, in substance, that within thirty days after his conviction and incarceration in the State penitentiary the prosecuting witness in the case, Edna Satterwhite, on whose testimony the State had procured a conviction, recanted and made an .affidavit to the effect that her testimony against appellant accusing him of having raped her was false. It was further alleged in tbe petition that appellant filed a motion for a new trial in the Clark County Circuit Court immediately after his conviction, and that before the adjournment of the term the court overruled said motion. The prayer of the petition was that a new trial be granted on account of the change in the testimony of the prosecuting witness. The court denied this petition, and an appeal has been prosecuted to this court.

A bill of review or in the nature of a bill of review is a pleading which originated at common law, and the remedy afforded under it was one confined exclusively to courts of equity. The proceeding must be instituted in a court of equity and in the same court which rendered the decree sought to be reviewed. 10 Ruling Case Law, page 567; note to Brewer v. Bowman, 20 American Decisions, 158. The only statutory method of review afforded in criminal cases in this State is on a writ of error or appeal or on a writ of error coram nobis, an original proceedings in the trial court. Howard v. State, 58 Ark. 229; Beard v. State, 79 Ark. 293. Courts of equity have no jurisdiction to interfere with criminal proceedings. State v. Williams, 97 Ark. 243; Ferguson v. Martineau, 115 Ark. 317. There is no provision for a motion for new trial in criminal cases on account of newly discovered evidence after the expiration of the term at which the judgment of conviction was rendered. Howard v. State, supra; Thomas v. State, 136 Ark. 290. The circuit court was, therefore, correct in denying the petition of appellant.

Affirmed.


author: McCulloch, O. J.

text:
    Frauenthal v. Morton.
    Opinion delivered June 13, 1921.
    1. Animals — uncovered well — liability for injury to stock.— Under Crawford & Moses’ Digest, §§ 375-6, making it unlawful to leave any shaft, well or other opening uncovered on uninclosed land, liability is not dependent on the fact that the person or corporation against whom liability is sought to be imposed dug the well, but may be incurred by permitting a well dug by another to remain uncovered.
    2. Animals — leaving uncovered well on uninclosed land. — Liability for injury to stock by leaving an uncovered well on unin-closed land, under Crawford & Moses’ Digest; §§ 375-6, is imposed, without reference to the question of negligence, it being sufficient to show that an artificial well was dug on the land, and that it was left exposed in a condition which might endanger live stock.
    3. Animals — uncovered well on uninclosed land. — The fact that a well was being used as a source of water supply does not relieve the owner from liability if he permitted it to remain uncovered on uninclosed land.
    4. Animals — injury to stock by open well — actual possession. —Liability for injury to stock by an uncovered well on uninclosed land, under Crawford & Moses’ Digest, §§ 375-6, does not depend upon the owner’s actual possession of the land; his constructive possession by reason of ownership being sufficient.
    5. Animals — injury to stock by open well — double damages.— Where the jury, under the court’s instructions, returned a' verdict for the market value of a horse drowned in an open well on uninclosed land, under Crawford & Moses’ Digest, §§ 375-6, it was not error to render judgment for twice the amount of the verdict, in accordance with the statute.
    Appeal from Cleburne Circuit Court; J. M. Shinn, Judge;
    affirmed.

      M. E. Vinson, for appellant.
    1. A verdict should have been directed for defendant. In the absence of statute the general rule is that the owner or occupier of land is under no legal obligation to take special care or pains to the end of keeping it safe for the protection of the animals of others which are allowed to run at large. 57 Ark. 17; 94 Id. 458; 116 Id. 163; 117 Id. 1. Under the proof in this case defendant was not liable and the evidence does not sustain the verdict. 56 Atl. 498, 500; 48 So. Rep. 357-8; 3 Words and Phrases, p. 60; 226 S. W. 1058. Under the testimony-plaintiff was remiss in liis duty and can not recover.
    2. Under the proof the court erred in its instructions.

      3. The judgment is not in keeping with the verdict. The jury must assess the amount of the damages. • C. & M. Dig., § 1305; 47 Ark. 120. It was error to render jdgument for double damages. 47 Ark. 120. There was no'evidence showing liability to plaintiff, and a verdict should have been directed for defendant.

      Geo. W. Reed and Lawrence Neill Reed, for ap-pellee.
    1. The complaint was drawn and action brought under C. & M. Digest, §§ 375-6 and it was an oversight that double damages were not claimed, but by amendment before the trial this was corrected and appellant was not misled at the trial. 57 Ark. 17 has no application and. the decision was rendered long before our statute was enacted, but the liability of defendant was recognized in that case by citing 46 Ark. 207; 94 Ark. 458 is not in point.
    By digging the well twenty feet deep and leaving it unprotected and uncovered, with water flowing, an agency was created which lured the horse to drink, and, the same being a place of danger, it constituted actionable negligence. 57 Ark. 17; 94 Id. 458; 116 Id. 163; 117 Id.1-,1 Negl. Compensation Cases Ann., p. 468; 7 N. C. C. C. 495 and note V; 23 N. D. 6; 7 N. C. C. A. 497, note YI. An owner is liable for a dangerous nuisance on his land if injury occurs thereby. 4 A. L. It. 731; 16 R. C. L., § 594, p. 1076. “Leave” means to permit or allow to remain. Webster’s Un. Diet.; 5 Words and Phrases, p. 1052; 16 Conn. 38-45; 14 N. J. L. 220-4; 43 Am. Rep. 365; 6 Wis. 377-389. The. well was a dangerous agency.
    2. In rendering a verdict under penalty statutes the jury assess the actual damages and the court doubles or trebles them as the statute provides. C. & M. Dig., § 2509. Many of the questions raised by appellant were settled by this court in 226 S. W. 1058.
   McCulloch, O. J.

Appellant, who was the defendant below, owns by inheritance from his father an unenclosed vacant lot in the town of Heber Springs on which is situated an exposed and uncovered well, according to the testimony, into which appellee’s horse fell and was drowned. This is an action to recover double the value of the horse, under the statute which reads as follows: -

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

The next section of the statute prescribes a penalty for violation of the preceding section and liability to the owner of the injured stock for the recovery of twice the appraised value thereof.

There is a conflict in the testimony as to whether the excavation was originally a spring ¡of water, but there is testimony tending to show that it was originally a flowing spring at all seasons of the year, and there was also testimony to the effect that it was what was called a “wet weather spring,” i. e., water flowing during the rainy seasons. At any rate the testimony is positive to the effect that during the year 1914 or 1915 a man named Brockman, by permission of appellant’s father who then owned the lot in question, dug a well at the place in ques- . tion to afford water for use at a hotel which he was operating a few blocks away. The well was dug about twenty feet deep, and, being on a hillside, it was walled up to the full height on the upper side and to the level of the ground on the lower side. Some of the witnesses say that it was above the ground on the lower side, and the testimony shows that an opening was left on the lower side, so that stock could approach and drink out of the well, and so that water could be conveniently dipped out. Originally, Brockman pumped water from the well with a gasoline engine, but the engine was removed long before appellees horse was drowned, and the well was left in the condition described above without any protection. Brockman abandoned the nse of the well, but it was, according to the testimony, used for watering stock running out on the commons and was also used at times by persons for drinking purposes.

When appellant inherited the property, it was in the condition described, and on a day in the month of August, 1919, appellee’s horse, which was allowed to run at large on the commons, went to the well to drink and fell into the well and was drowned. None of the witnesses in the case saw the horse fall in, but one of them saw it a few minutes after it fell, and it was still alive. He and a companion endeavored to rescue the horse, but were unable to do so. . After appellee was notified he and several other men finally dragged the horse out, then dead, by means of a rope and pulley suspended over the well so that the horse could be pulled straight out and then swung over. Circumstances indicated that the horse approached the well on the side of the opening and while reaching in for water fell into the well. The water was, according to the testimony, about .on a level with the ground, and'the hors» was found with bis head and front feet in the water with his hips on the outside .of the well. There was evidence tending to show that the well was at least eight or ten feet deep at the time the horse was drowu»d, and was twenty feet deep when originally dug.

The principal contention here is that the evidence is not sufficient to sustain the verdict, but we think there is sufficient evidence to establish a state of facts which would constitute liability under the terms of the statute cited above. We decided in the case of American Building & Loan Assn. v. State. 147 Ark. 80, that liability is not dependent upon the fact that the person or corporation against whom liablity is sought to be imposed dug the well, but that liability is incurred by permitting a well dug by another to remain uncovered. It is .also observed from a perusal of the statute that it is made unlawful to leave a well, shaft or other opening uncovered on unenclosed land, and that liability is imposed without reference to the question of negligence. In other words, the statute itself describes the circumstances under .which liability is imposed, and it is not a question for the determination of a trial jury whether or not those facts constitute negligence. The statute obviously applies only to artificial excavations, hut the testimony in the present case is sufficient to show that this is an artificial well due: on'the land, and that it was left exposed in a condition which might endanger ranging livestock. The fact that the well was being used as a source of water supply does not relieve the owner from liability if he permitted it to remain uncovered and exposed on unenclosed land, for that is the very circumstance upon which the statute expressly declares liability. Our conclusion is that there was evidence sufficient to' sustain the verdict.

It is further contended that the court erred in giving an instruction which ignored the question whether or not appellant was in actual possession of the property, it being contended that liability depended upon actual possession. Such is not the effect of the statute, which declares liability against all persons and corporations who “leave any shaft, well, or other opening uncovered on any unenclosed land.” It is undisputed that appellant was the owner of the lot at the time the horse was drowned in the well, and it is unimportant to consider what overt acts of ownership were exercised. The lot was vacant and unoccupied, and constructive possession follows the true ownership. There is nothing in the present case to show that there was any adverse claimant to the property, or that any other person was asserting ownership or possession.

The court instructed the jury that, in the event of a finding for the plaintiff, the damages should be assessed at the market value of the horse at the time it was killed. The jury returned a verdict in favor of appellees, assessing damages in the sum of $75, and the court rendered judgment against appellant on this verdict for $150, twice the amount of damages assessed by the jury.

It is contended that the verdict was general, assessing the full amount of the damages to which appellee was entitled, and that the court erred in rendering judgment for double damages. Hallum v. Dikinson, 47 Ark. 120. The orderly procedure in a trial of the issues under a statute of this kind is to instruct the jury as to the law in regard to double damages and permit the jury to make a finding of the full amount to be recovered. However, in the present case there was an instruction, given without objection, telling the jury to find the market value of the horse, and it is obvious that the jury did not intend by the verdict to find twice the value of the horse. This being true, it was not improper for the court to double the damages in rendering judgment on the verdict. Under the statute there is no discretion with the court or jury about allowing double damages. We think there was no error in this ruling of the court.

Lastly, it is contended that the complaint did not state facts making out a case for the recovery of double damages. We think, however, that the allegations of the complaint constitute a sufficient statement of facts to warrant a recovery under the statute, and appellee was permitted during the progress of the trial to amend the complaint so as to ask for double damages. The assessment of damages is within the testimony. While there was some conflict as to the value of the horse, there is scarcely any dispute that it was worth the sum fixed by the jury in the award of damages. The testimony of appellee and some of his witnesses would, if accepted by the jury, have justified a finding for a much larger sum.

Judgment affirmed.


text:
    Cranor v. Jenkins.
    Opinion delivered June 13, 1921.
    Animals — impounding of,-within fencing district. — Under Crawford & Moses’ Digest, §§ 4684^ 4657, making it unlawful to per- ■ mit stock to run at large within a fencing district after the district has been inclosed by a good and lawful fence, the construction of a fence around a fencing district is required only to the extent essential to the protection of the district from stock running at large; and where a fencing district is bounded on all sides by adjacent fencing districts already established, the construction of a fence is not required.
    Appeal from St. Francis Circuit Court; J. M. Jackson, .Judge;
    affirmed.

      J. W. Morrow, for appellant.
    The district does not become operative until the fence is built, in accordance with our statute, and it means that there must be a lawful fence around the boundaries of the district except in case of a navigable river. The theory of appellant is recognized in 107 Ark. 135. It was not unlawful for stock to run at large in this district until this district had been enclosed by such a fence as the statute requires. 107 Ark. 135.

      Mann & Mann, for appellee.- •
    The construction of a fence is only required to the extent that it is essential to the protection of the district from stock ruuing at large, and where there are other adjoining districts in which the running at large of stock is prohibited, the construction of a fence is not required. O. & M. Dig., § 4656, does not apply. See, also, lb., % 4663. Statutes must be reasonably construed to carry out the intention of the Legislature. 25 ft. C. L., p. 9Ó7; 65 Ark. 521; 48 Id. 307; 107 Ark. 135.
   McCulloch, O. J.

This case involved the right of appellee to impound certain livestock — two mules, the property of appellant — found running at large within the bounds of a fencing district in St. Francis County, formed by order of the county court pursuant to the general statutes on that subject. Crawford & Moses’ Digest, §§ 4655 et seq.

Appellant and appellee are both residents and owners of property situated within the boundaries of said district. The original statute authorizing the organization of fencing districts and prescribing the form of proceedings in regard to such districts was enacted b,y the General Assembly of- 1891, bnt has been subsequently amended in several particulars. The original and amend-atory statutes are cited in the notes to the sections of the digest referred to.

Section 4684 of Crawford & Moses’ Digest was enacted as a part of the original statute (1891) and reads as follows:

“After any fencing district has been inclosed by a good and lawful fence, it shall be unlawful for any person who is the owner, or who has control of any hind of stock, to let the same run at large in said district, and any person violating the' provisions of this section shall be deemed guilty of a misdemeanor, and, upon conviction, shall be fined in any sum not less than one nor more than fifty dollars, and, in addition to the above fine, shall be liable for double the amount of any damages that any person may sustain by reason of said stock running at large in said district, to be recovered by action before any court having competent jurisdiction. Provided, this section shall not prohibit any person from fencing his or her lands, or any part thereof, separately, and pasturing the same.”

Section 4657 of Crawford & Moses’ Digest was an amendment to the general statute enacted by the General Assembly of 1901, -and reads as follows:

“It shall be unlawful for any person owning or having control of stock that have been restrained from running at large to knowingly permit such stock to run at large within the territory comprising such fencing district, and any person violating the provisions of this act shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined not less than ten dollars nor more than twenty-five dollars.”

It is unnecessary to a decision of the present case for us to determine whether and to what extent, if any, these two sections are conflicting, or whether the former was to any extent repealed by the latter.

In the case of Hill v. Gibson, 107 Ark. 130, we recognized the force of that part of section 4684 which provides that it shall be unlawful to permit stock to run at large after “any fencing district has been inclosed by a good and lawful fence.” The statute, as originally enacted, and as it stands in force today, provides, in substance, that the county court may create such districts upon the application of two-thirds of the landowners in the territory to be affected, and that a fencing board shall be appointed by the county court, whose duties are to “form plans for the building of a good and lawful fence and' all necessary gates to inclose and protect said district,” to procure estimates of the cost of such fence and to levy assessments on property in the district to pay for the construction of the fence. In section 4671 it is provided that the cost of keeping the fence in repair fr'om year to year shall be paid in the same manner as the original cost of construction of the fence.

Section 4686, which was an amendment to the statute enacted by the General Assembly of 1897, expressly provides that any person finding stock running at large in a fencing district may impound the stock and, after notice, cause the same to be sold. ■

The district within which the stock of appellant was impounded is bounded on the south by a fencing district created by a special statute enacted by the General Assembly of 1919, Acts of 1919, page 308. It is bounded on the east by the Crittenden County line, that county being organized into a fencing district by a special statute enacted by the .General Assembly of 1913, Acts 1913, page 183. It is bounded on the north and west by another fencing district in St. Francis County, created under the general statutes, the same as this district. There was no fence built around this district, it being bounded on all sides by other districts, and the sole question presented in the briefs for our consideration is whether or not the impounding of stock is authorized by the statute until after the fence has been built on the boundaries of the district, so as to completely inclose it.

It is contended that the district does not become operative nntil the fence is built in accordance with the provisions of the statute, find that the statute means that under all circumstances there must he a lawful fence around the boundaries of the district, except in case of a navigable river, which is expressly declared by the statute to be ? sufficient barrier. On the other hand, it is contended by counsel for appellee that the statute should be interpreted to mean that the construction of the fence is required only to the extent that it is essential to the protection of the district from the intrusion of stock running at large, and that where there are other adjoining districts in which the running at large of stock is prohibited the construction of a fence is not required. Our conclusion is that the contention of appellee is correct, and that under a fair interpretation of the statute it is only meant to require the construction of a fence where necessary to constitute a barrier against the intrusion of stock from the outside. The lawmakers did not intend to require something that was wholly unnecessary for the protection of the owners of property in the district. Prohibition against permitting stock to run at large permits the farmers in the district to raise crops without inclosing their lands with fences and the lawmakers meant to protect them by requiring sufficient barriers around the outer bounds of the district so as to prevent the incoming of stock. But where there are other adjoining districts in which the running at large of stock is prohibited, there is no need of such protection.

The special acts referred to, which created the district in St. Francis County bounding this district on the south, and which created the district in Crittenden County, contained no requirements for the building .of fences, but each of the statutes prohibited the running at large .of stock in the respective territories, and this constituted a legislative determination in each instance that such prohibition and the penalties prescribed for the violation thereof constituted sufficient protection to the farmers who' cultivate lands in those localities,, This being true, we can not assume that tbe lawmakers meant to require, under tbe general statutes, tbe building of a fence to keep out stock from another district where tbe running at large of stock is expressly prohibited. This, we think, is a more reasonable view of tbe statute, and which is undoubtedly the one which works out- the best results. Of course, we must declare the law as we find it, but we consider the reasonableness of a requirement in order to determine the scope and extent which the Legislature meant to give it.

This view of the law affirms the judgment of the circuit court, and it is so ordered.

Wood and Humphreys, JJ., dissent.


author: Wood, j.

text:
    Fort Smith Light & Traction Company v. Williams.
    Opinion delivered June 13, 1921.
    1. Bridges — validity of act creating district. — Acts 1909, No. 119, p. 325, creating the Fort Smith and Van Burén Bridge District, is valid.
    2. Bridges — right to exact tolls. — The right to exact tolls of the public for the privilege of crossing a public bridge must be conferred by statute, or it does not exist.
    3. Bridges — validity of street car tolls. — Under Acts 1909, p. 325, creating the Fort Smith and Van Burén Bridge District, and act No. 233 of 1913, amending same, and authorizing the bridge district to grant a right-of-way over the bridge upon such terms as might be provided by contract between the bridge district and the street car company, a contract between the bridge district and the street car company by which the latter was to charge a certain fee for transporting passengers over the bridge and to pay a stipulated portion thereof to the bridge company in payment for the right-of-way over the bridge is valid.
    Appeal from Sebastian Chancery Court, Fort Smith District; J. V. Bourlcmd, Chancellor;
    reversed.

      J. B. McDonotigh, for appellant.
    1. The contractas a valid and binding contract under § 2 of act 119, Acts 1919, p. 328. See Acts 1913, pp. 1003-4. The validity of the act is settled in 115 Ark. 194-209. The traction company, as the evidence shows, complied with act 571, Acts 1919, p. 411. The contract is valid, as it provides for a money consideration and for the time and amounts of payment, and the act is valid. 140 Ark. 597. The traction company is the common carrier. The collection of fares makes the person a passenger of the traction company. Michie on Carriers, pp. 1503,1491; Nelle’s Street Railways, § 248. The bridge district is not a common carrier. Collectors of fares are agents of the' traction company and of the bridge district. Legally, the traction company is compelled to collect the charge and can collect no more nor less. Act 571, Acts 1919; C. & M. Digest, §§ 849, 850, 917-18-19 and 1631. It performs the service and owns the compensation. The traction company is a common carrier, and to sell at a reduced rate to one class and deny it to others is a violation of constitutional rights. 173 U. S! 684. Hence it can not sell its service to landowners at one price and to non-landowners at another. This suit is an indirect, if not a direct, attack on 115 Ark. 194. A street car company is a common carrier. Beale & Wyman on Railroad Rate Regulations, § 188; 173 U. S. 084. No street car company can discriminate in its charges between passengers. 96 Ark. 410; 98 Id. 543; 119 Id. 254. The increase of value of the assessments is the sole basis for these assessments. 89 Ark. 513.
    2. Sound reason supports the arrangement in the contract. A toll is a charge made against a person who walks or travels in his own conveyance over a bridge. 30 N. J. L. 447.
    A common carrier has a right to refuse any ticket, detached and presented in violation of the rule that a ticket is not transferable. 77 Tenn. 180; 82 Va. 250; 51 Atl. Rep. 406; 3 Michie on Carriers, p. 2442.
    The right of the State or district to charge a rental is well settled. 96 Ark. 410; 115 Id. 194; 79 Atl. Rep. 161.
    3. The evidence does not support the findings of the chancellor. The act of 1919 prohibits discrimination. See Acts 1919, p. 325. The act has been construed by our court. 96 Ark. 410. The right to charge public utilities for the use of the bridge is settled. 113 Ark. 493. See 94 Atl. Rep. 988; 44 Id. 385; 113 Ark. 493.
    4. The court erred in refusing to admit testimony to show that plaintiffs were not the real parties in interest, hut the real question is whether the contract is valid.

      Hill & Fitslmgh, for appellant also.
    The contract is within the Nakdimen decision. 115 Ark. 194. N.o statute has been changed since that session.

      Webb Covington, for appellees.
    The chancellor properly held the contract was ultra vires and void. 79 Ark. 234; 115 Ark. 207-9.
    The right to demand tolls of the public for crossing a bridge exists only by reason of statutory enactment. 76 G-a. 644. No toll can be demanded not lawfully within the franchise. 26 Me. 326; 11 Am. Dec. 170. Nothing passes in legislative grants to corporations but what is granted in clear, unequivocal and explicit terms. 15 Wallace (IT. S.) 500; 101 Id. 71. See, also, 9 Howard (U. S.) 172; 20 Ark. 625.
   Wood, j.

This action was brought by the appellees, residents and real property owners of the Fort Smith and Van Burén Bridge District (hereafter called bridge •district), against the bridge district and the Fort Smith Light & Traction Company (hereafter called traction company). The traction company is an Arkansas corporation engaged in the operation of a street railway in and between the cities of Fort Smith and Van Burén. The cars of the traction company run upon and over the bridge of the bridge district which spans the Arkansas River between the cities of Fort Smith and Van Burén. The appellees alleged that the bridge district was requiring of them and other owners of real property in the bridge district to pay a bridge fare or toll of 1% cents for each ticket purchased or five cents per passenger cash fare if no ticket had been purchased; that the traction company permitted the agents of the bridge district to collect the fares; that no charge was made against any person for crossing the bridge except those who were passengers of the traction company; that appel-lees and other real property owners of the bridge district were taxed for the construction and maintenance of the bridge, and this bridge fare against them was discriminatory and illegal because other passengers of the traction company who were not owners of real property in the bridge district were allowed to cross over the bridge on the traction company’s cars upon the payment of the same fare or toll as that paid by the appellees and other real property owners in the bridge district. The appellees further alleged that the bridge district was not collecting from the traction company any sum whatever for the use of the bridge; that all sums realized by the bridge district from the bridge fares collected from passengers on the cars of the traction company crossing the bridge were paid by the appellees and other passengers of the traction company, and not by the traction company; that the bridge had therefore been converted by the bridge district into a toll bridge contrary to the provisions of the act creating the bridge district.

The appellees instituted the action for the benefit of themeselves and all others similarly situated, and prayed that the bridge district and the traction company be restrained from charging and collecting the bridge fares mentioned.

The bridge district and the traction company answered separately, setting up substantially that the act creating the bridge district and act 233 of the Acts of 1913 amending, the same authorized the bridge district to grant a right-of-way over the bridge upon such terms as might be provided by contract between the bridge district and the public utility, which contract was required to be submitted to the electors of the bridge district through referendum; that a contract was entered into by the bridge district and the traction company which was duly submitted to the legal voters through referendum as provided by the act and was ratified and approved by them; that the bridge district and the traction company were complying with the terms of that contract, and they set np the contract as a justification for the charges of which the appellees complain and as a complete defense to their action. The contract was made an exhibit, and attached to the answers, and was proved and introduced in evidence.

The contract is too long to set forth in haec verba. It is in sections, and we will abbreviate and state in substance such of its provisions as we deem necessary.

In the first section the bridge district, for the considerations thereinafter named, grants to the traction company the right to use the free bridge and its approaches for the term thereinafter mentioned for the transportation of its passengers. This section specifically sets forth the things that the traction company is authorized to do in order to enable it to operate its passenger cars across and over the bridge and its approaches. It also specifically sets forth the things which the traction company is not authorized to do, confirming what had already been done by the traction company under a former contract and reserving in the bridge district the right to supervise and approve such improvements as the traction company should make in the future.

In the second section it is expressly agreed that, in consideration of the execution and performance of all of the terms of the present contract, any and all >alaims of the bridge district growing out of the use of the bridge and its approaches by the traction company prior to the execution of the present contract 'are waived. If the contract is not performed, then the bridge district does not relinquish its claim for rentals under former contract.

The third section contains reciprocal obligations by which the bridge district is to maintain the bridge and its approaches in good condition, and the traction company is to maintain in good condition its rails, wires, railway feeders, and ties on the approaches to the bridge.

The fourth section provides that the traction company shall not have exclusive use of the bridge, and that the trolley erected by the traction company may be used by any other public utility upon payment of just compensation, and that the use of the bridge by the traction company shall not interfere with the use of the bridge as a public highway.

By the fifth section the traction company agrees to maintain a schedule of cars, and the bridge district permits the traction company to stop its cars at both ends of the bridge to-receive and discharge passengers, “but in so doing there shall be collected, as hereinafter provided, a fare for the benefit of the bridge for every passenger who rides over the bridge or any part thereof, or any part of the approaches thereto. It is expressly agreed that the traction company shall aid the bridge district to collect the fare for the benefit of the district and shall do nothing which will tend to defeat the right of the district to collect the rental by way of fare as herein provided. The fare collected for the benefit of the district is the rental to be paid by the company for the use of the bridge. The method of collecting the fare in no manner changes the fact that said fare collected for the bridge district is a rental paid by the traction company for the use of the bridge. The company will therefore aid in every way the collection of a fare of 1% cents from each passenger, if the fare be a bridge ticket, •and, if the fare be cash, the >sum of five cents for each passenger. Said fare, when so collected, shall entitle the passenger to ride across and over the bridge and the approaches one way for e^ch fare. The traction company will not maintain any station for the taking up or setting down of passengers at any point on the bridge or on the approaches, and will not take up or set down passengers on the bridge or its approaches unless said passenger pays the bridge fare as above provided.”

By the sixth section the traction company agrees, “in consideration of the rights herein granted, that it will not permit any one except as herein provided to ride as a passenger on its said cars across the said bridge without permitting said bridge district to collect from each of said passengers a. bridge ticket or cash fare as provided in this contract. The bridge district, through its employees as herein provided, will take up and collect from each passenger either a bridge ticket for 1% cents or a cash fare of five cents for each passenger, and the employees of the traction company, if necessary, will aid the collectors of the bridge district in collecting such ticket or fare from each and every passenger as herein provided.”

Sections seven and eight relate to the means and methods used by the collectors of the bridge district in collecting the fares.

Section nine again provides that the fares when collected shall be full compensation for the use of the bridge and the approaches by the traction company and exempts certain employees of. the traction company from payment of fares, and then provides that the traction company will not give to any passenger who stops on the bridge or its approaches a transfer enabling him to ride on a ear after he has walked across the bridge.

Section ten provides for the printing of tickets at the expense of the traction company under the supervision .of the bridge district and the delivery of the printed tickets in packages to the bridge district and the purchase of these tickets by the traction company from the bridge district, the traction company paying 1% cents cash for each ticket. If, at the termination of the contract, the traction company has on hand any tickets, the bridge district agrees to redeem them at the price the traction company paid for same. This section also contains a provision to the effect that all sums of money paid by the traction company to the bridge district for tickets and the cash fares collected “shall be deemed rentals for the use of the bridge and is the funds and property of the bridge district.”

Section eleven provides that the tickets shall be in books containing twenty tickets each to be sold by tbe traction company at twenty-five cents per book, tbe tickets not to be transferred or transferable.

By section twelve tbe traction company binds itself to pay $50 per month toward tbe salary of bridge fare collectors if tbe cars crossing the bridge are operated by two men, or $100 per month if tbe cars are operated by one man.

Tbe thirteenth section makes tbe traction company responsible to tbe bridge district for any damage it may do to the bridge or its approaches.

By section fourteen tbe bridge district binds itself to charge all other pnblic utilities a reasonable toll or rental as tbe law requires for tbe use of tbe bridge.

Section fifteen prescribes tbe period of duration of the contract.

Section sixteen makes it tbe duty of tbe bridge district to keep tbe books and accounts with reference to tbe bridge tickets and bridge cash fares collected, and exempts tbe traction company from responsibility for any of tbe acts of tbe collectors or bookkeepers, who, under the terms of tbe contract, are the agents of tbe bridge district.

One of tbe appellees lived in Fort Smith, and tbe other in Van Burén. Their testimony was to tbe effect that each paid tbe traction company seven cents as passenger fare for transportation over its lines in tbe cities of Fort Smith and Van Burén, and an additional fare of 1% cents each to tbe bridge checkers 'on tbe free bridge while on the street cars if a ticket is used, or five cents cash without a ticket. They own real property in tbe bridge district and each pays annually tbe sum of $1.35 as a bridge tax. In buying a ticket from the traction company from Fort Smith to Van Burén they each had to pay 8*4 cents if they used a bridge ticket, or twelve cents without a bridge ticket, Tbe bridge fares are cob lected at each end of the bridge by collectors who get on the cars at the respective ends, ride across, and take np the fares at the other end of the bridge.

There was testimony to the effect that the conductors of the traction company on the cars had nothing to do with the collection of the bridge fares.

D. C. Green testified that he was the general manager of the traction company; that the traction company had a regular tariff of fares on each passenger on cars between the two cities. This schedule of fares is on file with the Corporation Commission as required by law. His testimony and the schedule show that the fares were as above indicated, and that children under twelve years of age were charged four cents. Green testified that the seven cents covered the transportation charges from any point in Yan Burén to Garrison Avenue in Fort Smith with free transfer privileges. In other _ words, a man gets on the car at the smelter in Yan Burén and pays seven cents and can transfer to any point within the city limits of Fort Smith. An additional fare of five cents is collected from each passenger crossing the bridge for a cash fare. The traction company did not charge any more than was set forth in its standard public schedule. This schedule was introduced in evidence by the appellees, and it showed that the fares were as above indicated.

There is a provision in the schedule under the title of “Bridge Contract” as follows: “Under contract as entered into with the Fort Smith and Van Burén Bridge District, bridge collectors selected and employed by the bridge district board the cars at or near the approach of the bridge and collect from each passenger crossing the free bridge between Fort Smith and Yan Burén five cents in cash or one bridge ticket, and the money thus collected from the passengers is retained by the bridge district.”

There was testimony on behalf of the appellees to the effect that the deputy sheriff, who was employed by the bridge district to clean and repair the bridge, some times in cases of necessity assisted the collectors in the , collection of fares.

The assistant secretary of the collector of taxes testified that he was the custodian of the records in the collector’s office and kept all contracts with public utilities using the bridge. There was no contract with any public utility other than the traction company. The district made charges against persons regardless of the kind of transportation for crossing the bridge. It charged taxicabs and other concerns! that carniied passengers for pay.

It was admitted that the contract in evidence had been ratified by the legal voters of the bridge district under the referendum provided by special act. Upon the above issues and facts, the court decreed “that the . aforesaid contract is ultra vires and void; that the taking of said fares by the district is contrary to law. Therefore, the said Fort Smith and Van Burén District, its commissioners, agents, employees and representatives are perpetually enjoined from taking, receiving, or attempting to take or offer to receive said fares under said contract.” From that decree is this appeal.

The bridge district was created under act 119 of the Acts of 1909, page 325. The act is valid. Shibley v. Fort Smith & Van Buren Bridge District, 96 Ark. 410; Nakdimen v. Fort Smith & Van Buren Bridge District, 115 Ark. 194: Section 2 of the -act provides in part as follows: “The commission (of the bridge district) shall have the power to grant a right-of-way over said bridge to any public utility upon such terms as the commission shall determine, provided, however, that the concessions which may be granted to public utilities shall not interfere with the reasonable use of such bridge as a public highway.”

Section 39 of the act is in part as follows: “The bridge district herein created shall have the power * * * to receive rents from the concessions heretofore author-feed from the public utilities for the purposes of construction, repair, and maintenance of the public improvement herein contemplated.”

Section 2 of the act was amended by the Legislature of 1913, act 223 of the Acts of 1913, page 1001, so as to read in part as follows: “The commission shall have the power to grant a right-of-way over said bridge to any public utility upon such terms as the commission shall determine, provided, however, that the concessions which may be granted to public utilities shall not interfere with the reasonable use of such bridge as a public highway. Provided, further, when the commission and the public utility shall agree upon a right-of-way or concession over the bridge to be enjoyed by any public utility, a contract setting forth fully the terms thereof shall be signed by the commission and the public utility subject to a referendum thereon.”

There are further provisions in the amendatory act providing for carrying the referendum into effect, and the amendatory act also provides: “That no exclusive privileges shall be granted under this section 'or any other provision of this act to any such public utility.”

In Nakdimen v. Fort Smith and Van Buren Bridge District, supra, construing section 2 of the original act, we said-: “We hold that the commission under section 2 of the act could only receive money for the grant of the right-of-way to the street car company, and the word ‘terms’ has reference to the time and amount of money paid, but that a discretion was left to the commission as to the amount of money to be charged therefor and the terms of the payment thereof.”

Learned counsel for appellees has made a vigorous attack upon the contract under review, the gist of his contention being that under the contract, as he construes it. the bridge district, has granted to the traction company a right-of-way over the bridge for which the bridge district “forces the travéling public to pay tribute and designates the money thus received rental paid by the

company.” To support Ms contention counsel relies mainly upon the .case of Perrine v. Chesapeake & Delaware Carnal Co., 9 Howard 172. In that case the canal company was granted a charter by Maryland, Delaware and Pennsylvania to cut and maintain a canal connecting the Chesapeake and Delaware bays. The charter gave the company the right to collect tolls on certain articles on vessels carrying commodities, enumerating the articles 'and the tolls thereon. Empty boats or vessels were required to pay $4, “except an empty boat or vessel returning whose load has already paid the tolls fixed, in wMch case she shall pass toll free.” The eleventh section of the charter provided: “The said canal and works to be erected thereon by virtue of this act, when completed, shall forever thereafter be esteemed, and taken to be navigable as a public highway free for the transportation of all goods, commodities or produce whatsoever on payment of the toll imposed by tMs act, and no tax whatsoever for the use of the water of the said canal, or the works thereon erected, shall at any time hereafter be imposed by all or either of the said States.” Perrine proposed to install a line of passenger boats through the canal, and the company required him to pay a toll of $1 for each passenger. Perrine resisted the payment of this toll, and the Supreme Court of the United States held that the company had no right under its charter to demand toll from passengers who passed through the canal, or from vessels on account of the passengers on board; that the company could only exercise the powers conferred upon it by its charter.

Counsel also relies upon the case of Reed v. Hanger, 20 Ark. 625. In that case the county court granted a charter to erect a certain toll bridge which provided “that the bridge should ever remain free and open to the citizens of the county.” It was held that the charter should be construed so as to give the citizens of the county the free use of the bridge whether they crossed on foot or otherwise, and also for the free passage of any means of transportation employed by tbem in tbeir lawful business.

As already observed, counsel for appellees, as a basis for tbe application of tbe doctrine of tbe above cases, assumes that tbe contract under consideration requires tbe traveling public generally, and not tbe traction company, to pay tbe bridge district for tbe rigbt-of-way over tbe free bridge exercised by tbe traction company. Tbis assumption wbicb tbe counsel tabes as bis premise and tbe argument based tbereon are plausible, but tbe premise is unsound, and bis argument, however forceful, necessarily leads to an erroneous conclusion. Therefore, it occurs to us that tbe doctrine of tbe above cases is not applicable to tbe contract under consideration, when correctly construed.

We shall not undertake to analyze and comment upon tbe various provisions of tbe contract. It evidenced an agreement by wbicb the bridge district is to receive a certain sum of money from tbe traction company for tbe right granted tbe latter to run its cars for tbe transportation of passengers over the bridge. Tbe original act expressly authorized tbe bridge district to charge tbe traction company for its right-of-way over tbe bridge. Nakdimen v. Fort Smith & Van Buren Bridge District, supra. By tbe same token tbe traction company, having thus acquired tbe rigbt-of-way over tbe bridge, could exercise it with all of its privileges, one of wbicb was to charge.passengers who used its facilities. Tbe amount charged tbe traction company by tbe district is a definite and fixed sum ascertained and measured by tbe number of passengers which tbe traction company transports in its cars over tbe bridge and tbe amount wbicb tbe traction company charges each passenger for such transportation. Tbe traction company is a common carrier, and bad a right to charge those whom it transported on its cars across tbe bridge according to tbe tariff of rates filed with .the Corporation Commission. Act 571 of tbe Acts of 1919, p. 411, §§ 5, 6 and 7. See Helena Water Co. v. Helena, 140 Ark. 597. Tbe money derived from this source through the sale and use of tickets, and, by the payment and collection of the cash fares in the absence of tickets, was primarily the property of the traction company and not of the bridge district. It became the property of the bridge district only because under the terms of the contract the traction company agreed to let the bridge district collect and use it in payment for the right-of-way privilege granted the traction company by the bridge district, and because the bridge district agreed to accept it as such.

It is not contended by the appellees, and could not be successfully contended under the issues herein joined, that the traction company did not have the right to charge those whom it transported over the bridge on its cars a fare of 1% cents where tickets were used, or a cash fare of five cents without tickets, as specified in its schedule of fares. As a common carrier, it could not be compelled to furnish the public its facilities of transportation over its line across the bridge without compensation. The only authority under the law authorized to determine whether these rates are just and reasonable has approved them. See § 6, act of 1919, supra.

There is no provision in the original act creating the bridge district nor in the amendatory act authorizing the commissioners of the bridge district to charge the general public for the privilege of crossing the bridge. On the contrary, the power conferred upon the bridge district is “to construct and maintain a free public highway.”

It is well established by our own decisions and the authorities generally that the right to exact tolls of the public for the privilege of crossing a .public bridge must be conferred by statute or it does not exist. Altheimer v. Plum Bayou Levee District, 79 Ark. 234; Nakdimen v. Fort Smith & Van Buren Bridge District, supra, and other cases cited in brief for appellees.

Therefore, if the appellees are correct in the assumption that by the terms of this contract the general public and not the traction company is required to pay the bridge district for the right-of-way which the traction company has over the bridge, then the contract is ultra vires and void. But, on the other hand, the original and amendatory acts confer upon the bridge district the authority to grant the traction company a right-of-way upon terms to be fully set forth in a contract between the bridge district and the traction company. Therefore, if the contract requires the traction company to pay the money, which it is authorized to receive from passengers, to the bridge district in payment for the concession or right-of-way granted by it to the traction company, and if the bridge district agrees to collect and receive this money as such payment, then the contract is valid. We are convinced that the latter is the only correct interpretation of the contract in the light of the decision of this court in Nakdimen v. Bridge District, supra, and the amendatory act of 1913, supra. The decree is therefore reversed, and the complaint is dismissed for want of equity.

Mr. Justice Humphreys not participating.


author: Hart, J.

text:
    Gordon v. Clark.
    Opinion delivered June 13, 1921.
    1. COURTS — jurisdiction op probate court. — Where the question of title to property belonging to deceased was involved in a contest between the administrator and a certain claiman^ the probate court was without jurisdiction.
    2. Judgment — res judicata. — To render a judgment in one suit conclusive of a matter sought to be litigated in another, it must appear from the record or from extrinsic evidence that the particular matter sought to be concluded was raised and determined in the prior suit, or .that it might have been litigated in 'that case.
    3. Judgment — res judicata. — The rule that a valid decree in a suit cuts off all defenses which might have been pleaded therein refers only to such matters as properly belong to the subject of the controversy, and are within the scope of the issues raised by the pleadings.

      4. Wills — ees judicata. — Where the probate court ordered the statement of the wishes of a dying person as to his property to he reduced to writing and admitted as a nuncupative will, and on appeal to the circuit court probate was denied on the ground that the amount of property involved was more than $500, and that such statement was therefore not good as a nuncupative will under Crawford & Moses’ Digest, § 10497, such judgment was not res judicata in an action to enforce a gift causa, mortis alleged to have been made by decedent.
    5. Gifts — elements of gift causa MORTIS. — The general rule is that where a person realizes that he is about to die, and under a sense of impending death gives chattels to another intending to pass title in the event of his death, and the latter accepts the gift, such facts constitute a gift causa mortis.

    6. Gifts — acceptance.—Where a gift is made to one person for another, there will be a presumption of acceptance if the gift is beneficial.
    7. Gifts — sufficiency of delivery. — -Where one, realizing that death is impending, gave to one person for others certain Liberty B-onds and War Savings Stamps, there was a sufficient delivery of these items to constitute a gift causa mortis.

    8. Gifts — delivery of depositor’s bank book. — Delivery of a depositor’s bank book, which was merely evidence of the account, was not sufficient to constitute a valid gift causa mortis of the money on deposit to the depositor’s account.
    9. Gifts — life insurance policies. — Life insurance policies payable to legal representatives of the insured may be transferred by mere delivery without written assignment to one person for another as a gift causa mortis.

    10. Gifts — donatio mortis causa of real estate. — A donatio mortis causa of real estate can not be sustained.
    11. Gifts — partial invalidity. — Where a decedent made a gift causa mortis of several classes of property, and the gift to a portion of them was invalid, this fact did not invalidate the gift as to the other classes of property.
    Appeal from Sebastian Chancery Court, Greenwood District; J. V. Bourlcmcl, Chancellor;
    reversed.
    STATEMENT OE FACTS.
    Appellant brought this suit in equity against appel-lees, and the prayer of her complaint- is that the title to a one-half interest in the property described in the complaint be divested out of appellees and vested in her.

      The complaint alleges that on the 11th day of December, 1918, A. T. McMillan departed this life intestate in the Greenwood District of Sebastian County, Arkansas, and that he was a citizen of that county and State at the time of his death; that at the time of his death he owned personal property consisting of about $350 in Liberty Bonds; about $400 in War Savings Stamps, about $90.50 deposited in a bank and the proceeds of two policies of insurance, one in the sum of $735 and the other in the sum of $1,000.
    That the said A. T. McMillan became sick, and realizing that he had but a few hours more to live, called to his bedside Wilmot Clark, Jr., and delivered to him an envelope containing the Liberty Bonds, War Savings Stamps, insurance policies, bank book showing the amount deposited to his credit in the bank, and some deeds to real estate. That he directed said Wilmot Clark, Jr., to divide said property equally between appellant, who was the mother of his deceased wife, and his own mother. Appellant further states that William M. McMillan and Susan McMillan, who were defendants in the court below, were respectively the father and the mother of A. T. McMillan, deceased, and that the other appellees, who were also defendants in the court below were his brothers and sisters.
    Appellee, Wilmot Clark, Jr., filed an answer, in which he admitted that A. T. McMillan, realizing that he was about to die, called him to his bedside and gave him a' packet containing Liberty Bonds, War Savings Stamps, insurance policies, bank book and deeds, and directed him to divide his property equally between his mother and the mother of his deceased wife; that he hold said property subject to the orders of the court.
    Appellees allege that the chancery court has no jurisdiction over the cause, and say that the property claimed by appellant is now in the control of the probate court, which has exclusive jurisdiction of the distribution thereof. They allege that Wilmot Clark, Jr., is the administrator of the estate of A. T. McMillan, deceased, and that he holds the property described in the complaint to be distributed to the heirs at law of A. T. McMillan, deceased, in accordance with the laws of the State, and that said estate is now in process of administration in the probate court of Sebastian County.
    Appellees also interposed a plea of res judicata, based on the following- facts:
    After the death of A. T. McMillan, deceased, Wilmot Clark, Jr., appeared in the probate court and stated to said court that A. T. McMillan, realizing that he was about to die in a few hours, gave to him in a package the property described above, consisting of Liberty Bonds, War Savings Stamps, bank book, insurance policies and . deeds.
    The proceedings had before the court were those prescribed for the proving of nuncupative wills. The court reduced the transaction had between A. T. McMillan just prior to his death and Wilmot Clark, Jr., to writing and admitted the same to probate as a nuncupative will.
    The heirs at law of A. T. McMillan duly prosecuted an appeal to the circuit court. The circuit court found that on the 14th day of January, 1918, A. T. McMillan and Etta McMillan, his wife, each made a will in writing devising to the other all of his or her property; that said Etta McMillan died a few days before her husband, and that all of her property vested in her husband under her will; that her husband, A. T. McMillan, died intestate on December 14,1918, and that under section 10497 of Crawford & Moses’ Digest, no nuncupative will is good where the estate bequeathed exceeds the value of $500; that the oral directions given by A. T. McMillan to Wilmot Clark, Jr., for a distribution of his estate, bequeathed property exceeding the value of $500, and for that reason could not be reduced to writing and probated as a nuncupative will.
    It was therefore adjudged by the court that the judgment of the probate court, reducing said directions to writing and admitting the same to probate as a nuncupa-tive will, should be canceled and set aside.

      It was further ordered and adjudged that a.copy of the judgment of the circuit court be transmitted to the probate court and entered on the records of that court. No appeal was taken from this judgment.
    . Upon this state of the record- the case came on for hearing in the chancery court on October 18,1920, and it was decreed that the complaint of appellant should be dismissed for want of equity. The case is here on appeal.

      Webb Covington and G. L. Grant, for appellant.
    1. There is only one question in this case, i. e., has the chancery court jurisdiction to try and determine the ■cause? The question of res judicata can not be considered, for that is an affirmative defense to be heard in the trial below, and, as there was no trial and no testimony introduced by either party, nothing is open now except the question of jurisdiction. There was a gift to appellant. The delivery to Clark of the property was the best one that the nature of the property at the time admitted. The gift was intended in presentí and accompanied by delivery and sufficient. 59 Ark. 96; 93 Id. 563. The probate court has no jurisdiction of this case. 110 Ark. 119. Probate courts can not try the title to property. Ill Ark. 357; 72 Id. 330; 227 S. W. 1-3.
    2. The chancery court has jurisdiction, as a trust was involved. 3 Am. L. Bep. 912-13; 101 Ark. 455; 227 S. W. 1-3.

      W. A. Falconer, Jos. R. Brown and Geo. W. Jolm-son, for appellees.
    1. Appellant’s brief is not in conformity with rule 9 of this court.
    2. The appeal presents only a moot question, which this court will not decide. 90 Ark. 165; 91 Id. 292; 92 Id. 242.
    3. The complaint stated no cause of action, and was properly dismissed. If the judgment was correct on any ground, whether that ground was relied on by the lower court or not, the cause should be affirmed. 88 Ark. 140; 107 Id. 462; 126 Id. 159; 117 Id. 304.

      4. . The case was properly dismissed, as it was res judicata.

    The complaint attempts to set up a gift causa mor-tis. Under the- circumstances here the law presumes a gift causa mortis and not inter vivos. 131 Ark. 507. Real property is not the subject of a gift causa mortis. 20 Cyc. 1242. Where the donor intended to give property as a whole, a gift of part of it only will not suffice, and the whole gift must fail. 20 Cyc. 1231. The complaint shows that McMillan made Clark his agent to make delivery after his death, and this is a nullity. 44 ' Ark. 42.
    Money in hank and the proceeds of an insurance policy do not pass by delivery. 99 Ala. 441; 12 So. Rep. 420; 92 Am. Dec. 481.
    No trust is involved here, and the cirucit court had jurisdiction. 10 N. E. Rep. 352. The judgment of the circuit court is not open to collateral attack, and every presumption is in favor of the court’s jurisdiction. 77 Ark. 497; 101 Id. 390. Want of jurisdiction was not pleaded in the lower court, and appellant is now precluded. 119 Ark. 413; 110 Id. 119. The probate court is a court of superior jurisdiction, and its judgment not subject to collateral attack. 92 Ark. 611, 616.
    The judgment against Mrs. Gordon is not void, and by long acquiescence of the parties jurisdiction may be conferred on the probate court. 110 Ark. 119; 44 Id. 42.
   Hart, J.

(after stating the facts). The chancery court erred in sustaining the plea to the jurisdiction of the court. It is true that the estate of A. T. McMillan, deceased, was in course of administration in the probate court. The question of the title to the property did not arise in that court as a necessary incident to the administration of other matters over which the probate court had jurisdiction.

The present case involves a contest between the administrator and a claimant to certain property of the estate, and it is well settled that the probate court has no jurisdiction of a contest between an executor or administrator and others over the title of property belonging to the deceased. King v. Stevens, 146 Ark. 443, and cases cited, and Union & Merc. Trust Co. v. Hudson, 147 Ark. 7.

Again it is contended that the decree of the chancery conrt should he upheld on the appellees’ plea of res judicata. To sustain that plea it was shown that Wilmot Clark, Jr., had represented to the probate court that A. T. McMillan, deceased, on his death bed had delivered to him a packet containing certain property and directed that he should divide it equally between appellant, the mother of his deceased wife, and his own mother. The probate court ordered the statement to be reduced to writing and to be admitted to probate as a nuncupative will, and, on appeal to the circuit court, probate was denied on the ground that the property involved amounted to more than $500, and that, under section 10497 of Crawford & Moses’ Digest, no nuncupative will is good where the estate bequeathed exceeds the value of $500. To render a judgment in one suit conclusive of a matter sought to be litigated in another, it must appear from the record, or from extrinsic evidence that the particular matter sought to be concluded was raised and determined in the prior suit; or that it might have been litigated in that case. Livingston v. Pugsley, 124 Ark. 432, and Morton v. Linton & Plant, 138 Ark. 297.

The rule that a valid decree in a suit cuts off all defenses which might have been pleaded therein refers only to such matters as properly belong to the subject of the controversy, and are within the scope ,of the issues raised by the pleadings Pourche River Lumber Co. v. Walker, 96 Ark. 540. The title to the property in controversy in this suit was not involved in" the probate proceeding. The only question raised or that could have been raised in that proceeding was whether or not the statement of Wilmot Clark, Jr., to the probate court formed a sufficient basis to warrant it in being reduced to writing and filed for probate as a nuncupative will. •

The circuit court held that no nuncupatve will was established under the facts presented and no appeal was taken from that judgment. Hence that judgment is conclusive that no valid will was made by A. T. McMiilan. But appellant might be entitled to the property and still not be entitled to it as a legatee under a nuncupative will, The fact that a nuncupative will was not probated does not prevent appellant from claiming the property under a gift causa mortis. The reason is that the question of whether or not the decedent had given the property to her, in view of his impending death, did not become an issue in the proceeding to probate a nuncupative will, and could not have been made an issue in such proceeding. Such an issue could only be raised in an independent suit between the claimant and the administrator of the decedent, like the present one. Therefore the issues raised in the present case were not adjudicatd in the probate proceedings.

The general rule is that where a person realizes that he is about to die, and under a sense of impending death gives chattels to another intending to pass title in the event of his death, and the latter accepts the gift, such facts constitute a gift causa mortis. Lowe v. Hart, 93 Ark. 548.

It is generally held that where such a gift is made to one person for another there will be a presumption of acceptance where the gift is beneficial. Ammon v. Martin, 59 Ark. 191; Pyle v. East (Iowa), 3 A. L. R. 885, and case note at page 917, and Varley v. Sims' (Minn.), 8 L. R. A. (N. S.) 829.

In the present case A. T. McMillan, realizing that he was about to die in a short time, gave to "Wilmot Clark, Jr., a packet containing Liberty Bonds, War Savings Stamps, two insurance policies, his check book, and some deeds to real estate and directed him to divide the property equally between his own mother and his deceased wife’s mother. There was about $350 in Liberty bonds, and about $400 in War Savings Stamps. Under the rule just announced, there was a delivery ,of these items and they constituted a gift ccmsa mortis. There was about $90.50 deposited in the bank to the credit of A. T. McMillan. The question is presented as to whether or not the delivery of the depositor’s bank book constituted this a gift ccmsa mortis. The deposit of A. T. McMillan could not be withdrawn from the bank by the production of his bank book, but could be withdrawn only on his check. The delivery by McMillan to Clark of his bank book did not give the latter dominion and control over the money which McMillan had on deposit in the bank. The deposit was just as subject to check, without the production of the book as with it. The book was only evidence of the state of the account between the bank and McMillan. Therefore, we hold that the facts stated are not sufficient to constitute a valid gift ccmsa mortis of the money on deposit in the bank to the credit of deceased. Jones v. Weakley (Ala.), 12 So. 420, and cases cited; Ashbrook v. Ryon, 2 Bush (Ky.), 228; 92 Am. Dec. 481, and Seabo v. Speckman (Fla.), L. R. A. 1917 D, 357.

Our own case of Lowe v. Hart, 93 Ark. 548, is not opposed to the view herein expressed, but rather confirms it. In that case the bank through its cashier had issued a written certificate of deposit, and the certificate recited that the amount deposited was payable to the order of the depositor on the return of the certificate properly indorsed. The depositor on his deathbed had given the certificate to Mrs. Hart and spoke of it as a check for the money. Under the circumstances the court held that there was a valid gift ccmsa mortis.

As we have already seen, the bank book in the present case was merely evidence of the amounts which from time to time had been placed in the balnk by the depositor, and the delivery of the book could not pass the title thereto.

The delivery of the life insurance policies was complete, and it is well settled that life insurance policies payable to the legal representatives of the insured may be transferred by a mere delivery without a written as-' signment. Gledhill v. McCoombs (Me.), 45 L. R. A. (N. S.) 26, Ann. Cas. 1914 D, 294. In a case note to the latter citation on page 297, it is said that the general, if not universal, rule is, that a policy of insurance on the life of the donor may be made the subject of a gift in the same manner as any other chose in action and numerous decisions are cited in support of the rule.

Again on page 298 it is said that the gift of a policy of life insurance is valid in the absence of a written as-sigment, provided there is a delivery of the policy by (he donor to the donee, and numerous cases are cited in support thereof. In such cases the courts make no distinction between bonds or promissory notes and policies of life insurance. Each is held to be a contractual obligation to pay money at a certain time, so that it is said that, if the mere delivery of a promissory note without indorsement is sufficient to entitle the donee as against the donor and his representative to demand and receive the money from the obligor, no reason can be perceived why under like circumstances the donee of a life insurance policy should not be vested with like rights.

The attempted gift of the real estate was not a valid gift ccmsa mortis. It is almost universally held that a gift of real estate as a donatio mortis causa can not be sustained. .12 Cyc. 1242 and cases cited; Meach v. Meach, 24 Vt. 591; and Johnson v. Colley (Va.) 99 Am. St. Hep. 884, and case note at page 908.

It results from the views we have expressed that there was a valid gift causa mortis of the Liberty Bonds, the War Savings Stamps and the insurance policies, but that no title passed to the money deposited in the bank or to the real estate.

Finally, it is contended that there was no intention on the part of the donor to make the gift otherwise than as a whole, and that the failure of a part must defeat the whole. To support this contention, counsel cite McGrath v. Reynolds, 116 Mass. 566, and Knight v. Tripp (Cal.), 54 Pac. 267.

We do not think that the facts in those cases control here. In each of them direction was given to a third person as here to pay certain bequests to others, but here the analogy ends. In each of those cases the donor directed the donee to give the property to various persons, and different amounts were directed to be given to them. It was the evident purpose of the donor to distribute his property to all these persons, and there was nothing to indicate that a portion of the property would have been given to some of them if the whole gift was not held valid.

In the case at bar the donor directed the donee to divide his property equally between two persons, and a failure of a part of the intended gift could in no wise affect the remainder. It is not to be supposed that the donor would not have intended a part of his property to be divided equally between the parties because his gift to the whole of it failed. On the contrary, it was the evident intention of the donor to divide all of his property between his own mother and his deceased wife’s mother. The reason of his course is perfectly apparent, He and his wife had made wills in favor of each other. His wife had died but a few days before he realized that he was about to die. Therefore, he wished to divide his property equally between his own mother and his deceased wife’s mother. A failure to accomplish his purpose as a whole should in no sense be held to defeat it entirely.

It follows that the decree must be reversed, and the cause will be remanded for further proceedings in accordance with the principles of equity and not inconsistent with this opinion.


text:
    Howell v. Lambersom.
    Opinion delivered June 13, 1921.
    1. Taxation — right of taxpayer to pay part of his taxes. — In the absence of a statute to the contrary, a taxpayer always has the right to pay the amount of any one tax listed against his land, while refusing to pay other taxes listed separately against it.
    2. Statutes — construction.—The primary object in the construetion of statutes is to ascertain the intention of the Legislature from the language used.
    8. Taxation — failure of collector to collect drainage tax. — Under Crawford .& Moses’ Digest, § 3618, imposing a penalty upon a tax collector failing to collect drainage taxes along with the other taxes unless enjoined, and 1 Road Laws, 1919, p. 529, § 21, imposing a penalty on him if he shall “omit to advise” any taxpayer of the amount of his road improvement assessment when he pays his general taxes, a collector does not incur the above penalties where he demands the drainage tax or road assessment and endeavors to collect them.
    4. Taxation — payment of general tax alone. — Under Crawford & Moses’ Digest, § 3618, and 1 Road Laws 1919, p. 529, § 21, a tax collector could not refuse to accept payment of general taxes because the landowner refused to pay his drainage or road improvement assessments, wishing to contest the same; the statute being directed against the collector and not against the landowner.
    Appeal from Craighead Circuit Court; R. E. Dudley, Judge, adjudged by the circuit court that the collector be commanded to receive from Gr. W. Lamberson and A. D. Lamberson the State and county taxes tendered by them upon their lands as described in the complaint, and that he as such collector issue them a tax receipt therefor without payment or tender by them of the local assessments alleged to be due in Drainage Districts Nos. 15 and 16 in the Tri-County Highway Improvement District. No injunction had been issued prohibiting the collector from collecting the improvement district taxes. The case is here on appeal.

      affirmed.
    STATEMENT OF FACTS.
    On May 17, 1920, G-. W. Lamberson and A. D. Lam-berson filed a petition in the circuit court against Homer Howell as collector of the revenue of Craighead County, Arkansas, for a writ of mandamus to compel Howell, as such collector, to accept their payment of said county and school taxes upon certain lands situated in the county and owned by them which the collector had refused to accept.
    As a defense to the action, the collector alleged that the petitioners owned lands in Drainage District Nos. 15 and 16 of Craighead County, Arkansas, and in the TriCounty Highway Improvement District, and that certain assessments were due and unpaid on said lands in said improvement districts.
    The collector further alleged that he had refused to accept the tender of the general taxes for the reason that the petitioners had refused to pay at the same time these local assessments due as aforesaid.
    The case was tried in the circuit court' on an agreed statement of facts substantially as stated above. It was

      Lamb & Frierson, for appellant.
    It is'the duty of the collector to collect drainage and road taxes at the same time he collects the general taxes. C. & M. Digest, § 3618. This section is constitutional. It is not vague nor indefinite. All legislative enactments not prohibited by the Constitution are valid. 45 "W. Ya. 415; 74 N. Y. 183; 44 Minn. 97; 15'Fla. 410 (421); 76 Ala. 603.
    Due process of law is secured if the laws operate on all alike and do not subject an individual to an arbitrary exercise of authority and powers of the government. 152 U. S. 377; 184 Id. 540; 183 Id. 471; 68 Tenn. 202; 38 Miss. 424 (458); 40 Ark. 296-300. C. & M. Digest, § 3618, does not deprive appellees of any vested right. 20 Miss. 347; 115 la. 220; 44 S. W. 981; 172 Mo. .318; 16 Serg. & R. 169 (191); 9 Grill 299 (309). It was error to refuse the declarations of law asked by appellant.

      H. M. Mayes, for appellees.
    It is clear, under the statute (C. & M. Dig., § 3618), the collector is not forbidden to accept any part of one’s taxes, but it is his duty to collect all drainage and road taxes at the same time he collects the general taxes. The judgment below is clearly right. 28 Ark. 518-19. The collector should have accepted and receipted plaintiffs for such taxes as they desired to pay, as he has no discretion in the matter. 28 Ark. 518.

      Sloan & Sloan, amici curiae.

      Taxpayers have the right to pay their general taxes without regard to the drainage and road taxes, and the ’ collector must receive them when offered without regard to other local assessment taxes.
   Hart, J.

(after stating the facts). The record shows that the drainage districts were organized under the general drainage act. Section 3618 of Crawford & Moses’ Digest, relative to the collection of drainage taxes in such districts, reads as follows:

“The amount of the taxes herein provided for shall be annually extended upon the tax books of the county, and collected by the collector of the county along with the other taxes, and for his services in making such collection the collector shall receive a commission of one per cent.; and the same shall by the collector be paid over to the county treasurer at the same time that he pays over the county funds. If any collector shall fail to collect the drainage tax along with the other taxes, he shall be subject to a penalty of one hundred dollars for each instance in which he shall collect from an individual the other taxes and omit the drainage tax, unless the drainage tax has been enjoined by a court of competent jurisdiction, to be recovered in a suit brought by the commissioners to the use of the district; and the county clerk shall be subjected to a like penalty for each case in which he shall fail to enter the drainage tax on the tax books.”

The Tri-County Highway Road Improvement District was created under special act No. 186 of the Acts of 1919. Road Acts of 1919, vol. 1, p. 510. Section 21 of that act reads as follows:

‘ ‘ The county collector of each of the respective counties in which lands in said road improvement district are situated shall collect the several installments of the .assessments of benefits during each year at the time he collects the general taxes; and if he shall omit to advise any taxpayer of the amount of his installment of the .assessment of benefits during that year, at the time such taxpayer is paying Ms general taxes, lie shall he subject to a penalty of one hundred dollars for each instance, which may he collected by the commissioners by civil action or by deducting said penalty from any fee due the collector from said district. ’ ’

It is the contention of the collector that the effect of these statutory provisions is to prohibit him from accepting a tender of the State and county taxes on the lands in question unless the owners would pay the drainage and road taxes due and unpaid upon said lands at the same time.

The agreed statement of facts in this case shows that the plaintiffs tendered to the collector the amount of State, county and school taxes levied on their lands, but refused to pay the drainage and road improvement taxes on the ground that they had not been legally assessed and levied, and that they were going to contest the same The collector refused the tender on the ground that under the statute he was not allowed to collect the general taxes without also collecting the improvement district taxes. The object of this lawsuit is to compel him to receive the general taxes without the payment of the improvement district taxes.

In the absence of a statute to the contrary, a taxpayer always has the right to pay the amount of any one tax listed against his land while refusing to pay other taxes listed separately against it. Cooley on Taxation (3 ed.), vol. 2, pp. 808 and 809 ; 37 Cyc. 1164.

Among the cases cited in Cyc. is Goit v. Claw, 28 Ark. 516. In 'that case the court said that whether the owner of real estate shall pay all taxes or pay one kind and not another, or let his lands go to sale for all or part, are questions for him and not for the collector to determine. The question of whether this right of the landowner has been taken away by the drainage and road improvement district statutes set out above is the issue raised by this, appeal,

The primary object in the construction of statutes is to ascertain the intention of the Legislature from the language used, where that can be done. Tested by this rule, we do not think that either of the statutes referred to makes it obligatory upon the landowner to pay the local assessments imposed upon his land by the drainage improvement districts, or by the road improvement district, when he makes payment of his general taxes, State, •county and school. The language of the statute shows that it is directed against the collector, and not against the landowner. The word “fail,” as used in the drainage statute above copied, imports to become deficient or lacking, to leave unperformed, to omit, to neglect. Century Dictionary and Bouvier’s Law Dictionary. The statute in question provides that if any collector shall fail to collect the drainage tax along with the other taxes, he shall be subject to a penalty of $100 for each instance in which he shall collect from an individual the other taxes and omit the drainage tax unless the drainage tax has been enjoined. We think the word “fail” implies in this statute an imposed duty upon the collector to collect the drainage tax at the same time he collects the general taxes, and is aunlicable onlv in case of neglect or omission of the collector to perform such duty. The word “fail”, as used in the statute, covers both the intentional and unintentional nonperformance on the part of the collector. Where the collector has demanded the tax and endeavors to collect it from the landowner at the time he collects from him the general taxes and the landowner should tender his general taxes and contest the payment of the drainage tax and refuse to pay it, it could not be said that the collector failed to act or to perform his duty in the premises so as to subject .himself to the penalty prescribed by the act. In such case he would be guilty of no delinquence, and failure to perform his duty could not be ascribed to him for the reason that he had done all that he was authorized to do in the premises. Under the terms of the statute, the collector could not refuse to accept a voluntary payment of the general taxes because the landowner wished to contest the payment of his improvement taxes and on that account refused to pay the same. The language of the statute is in no sense directed against the landowner, and his n'irht to pay his general taxes without paying the improvement taxes can not he taken away.by any supposed intendment on the part of the Legislature. Such a right is a valuable one to the landowner and could in no event be taken away without direct and express language to that effect on the part of the Legislature.

The road improvement district statute uses the words “omit to advise.” The reasoning we applied above to the use of the word “fail” in the drainage district statute applies with equal force here.

An argument is also made that a statute imposing a duty upon the landowner to pay his drainage and road improvement taxes as a prerequisite to his right to pay his general taxes would be unconstitutional. The views we have expressed render it unnecessary to pass upon this question.

It follows that the judgment must be affirmed.

Smith and Humphreys, JJ., dissenting.