author: Smith, J. -McCulloch, C. J.,

text:
    Western Lawrence County Road Improvement District v. Friedman-D’Oench Bond Company.
    Opinion delivered December 17, 1923.
    1. Appeal and error — direction of verdict — review.—Where the . trial court directed a verdict for the plaintiff, the Supreme Court on appeal will give to the testimony in favor of the defendant its highest probative value in considering the correctness of such ruling.
    2. Highways — holder of district’s warrant not innocent purchaser. — Where a highway district issued a warrant reciting that it was issued “on account of advance on bond purchase of said district,” and the holder of the warrant by purchase from the payee knew that the warrant was issued pursuant to the payee’s agreement to purchase the bonds of the district in a large sum, which the payee failed to do, such payee was not an innocent purchaser.
    3. Highways — jury question. — In an action against a highway district on a warrant by the transferee of the payee, in which the district counterclaimed for breach of the payee’s agreement to purchase the district’s bonds, the question whether the payee made the contract on his own behalf or as the transferee’s agent held for the jury.
    4. Highways — contract—ratification.—A contract for the sale of its bonds made by a highway district before the assessment of benefits was not binding on either party, but such contract could be ratified by the parties, either expressly or impliedly, after the assessments were made.
    5. Highways — ratification of contract for sale of bonds. — A . road improvement district, by insisting after assessment of benefits that a contract for the sale of its bonds, made before such assessment, should be performed by the buyer, will he held to have ratified such contract.
    6. Highways — ratification of premature contract. — To effect ratification by a highway district of a contract prematurely made before assessment of benefits, it is not required that there should be a part performance or a re-execution of the contract, but there is required a distinct recognition in some form of the existence and binding effect of such contract.
    7. Contracts — ratification—consideration.—A ratification of a contract requires no new consideration if the voidable contract which is ratified was based upon a consideration. ’
    8. Principal and agent — authority of agent to ratify. — An agent who entered into a contract to purchase the bonds of a road district on behalf of a bond dealer before the assessment of benefits was authorized to bind the dealer subsequent to the assessment of benefits by acts constituting ratification of the contract.
    y. Highways — breach of contract to purchase bonds — damages. —In an. action on the warrant of a road district, in which the district counterclaimed damages for breach of a contract to purchase its bonds, and admitted its liability on the warrant, if the jury should find for the district, they should deduct the amount of the warrant from the amount of the district’s damages.
    Appeal from. Lawrence Circuit Court, ¡Western District; Dene H. Coleman, Judge;
    reversed.

      Poindexter & Irby and Ponder & Gibson, for appellant.
    1. The warrant sued on was not negotiable. 3 R. C. L. 849; 19 Wall. (XJ. S.) 468; 103 U. S. 74; 5 Am. St. Rep. 476; 11 Am. St. Rep. 227; 39 Am. Rep. 63; 104 Am. St. Rep. 225; 87 Am. Dec. 423; 97 Am. St. Rep. 383; 17 Am. St. Rep. 470; 26 Am. St'. Rep. 604; 25 Arli. 266; 41 Ark. 245; act No. 293, Acts 1917, §§ 9 and 12.
    2. Not being negotiable, the warrant was, in the hands of appellee bond company, subject to all defenses which might have been made against Turner; and, even if it should be considered as negotiable, the bond company, being interested as purchaser along with Turner, would be liable for damages for the breach of their contract of purchase of the bond issue of the district.
    3. The Court erred in holding that the contract entered into with Turner was void, and in instructing a verdict for the plaintiff. 106 Ark. 39; 119 Ark. 197; 149 Ark. 476; 145 Ark. 279; 115 Ark. 437; 151 Ark. 47.

      Rose, Hemingivay, Cantrell & Loughborough, for appellee.

      1. The instrument sued on is negotiable. Acts 1917, vol. 2, p. 1503, § 12; 152 Ark. 422; 15 N. T. 337, 69 Am. Dec. 606; O. & M. Digest, § 7896; Brannan’s Negotiable Instruments Law, 357, § 130; 8 Corpus Juris, 42, ^ 23-4. Since it is undisputed that the district has received full face value of the warrant, it is immaterial whether it is negotiable or not. 158 Ark. 58.
    2. The contract was void because entered into before the plans for the improvement and the assessment of benefits were made. 108 Ark. 460; 111 Ark. 421; 119 Ark. 188; 149 Ark. 477; 150 Ark. 94; 151 Ark. 47, 55; 153 Ark. 582; 158 Ark. 284. •
    3. There can be no recovery because the bonds actually sold were different from those contracted for. 234 TJ.’S. 36; 245 U. S. 337, 344; 197 N. T. Suppl. 80; 217 S. W. 635.
    4. Appellant cannot make the appellee pay for the consequences of its own folly in building the roads at a time when labor and materials were most expensive, and when bonds were selling at the minimum price. 134 Ark. 345-8; 137 Ark. 397-402; 123 Ark. 1-8; 102 Ark. 246, 251; 118 Ark. 13-16; 146 Ark. 585-592. The courts will take judicial notice of matters of public history. 150 Ark. 514-516; 144 Ark. 522, 526; 137 Ark. 600, 6Í2.
   Smith, J.

Appellee is a corporation, and will be hereinafter referred to as the company. It was the plaintiff below, and for its cause of action alleged that the defendant road improvement district, hereinafter referred to as the district, in consideration of $12,500 in money advanced to the district, executed to S. P. Turner the negotiable warrant of the district in the following-form:

‘‘‘Western Lawrence County Road Improvement District.
“Pay to the order of S. P. Turner, Hardy, Ark., the sum of twelve thousand five hundred no/100 dollars ($12,500) with 6 per cent, interest from date until paid.
“On account of advance on bond purchase of said district.
“Dated this 10th day of September, 1919.
(Signed) “Clay Sloan, Chairman,
“D. W. Kaiser, Secretary.”

That plaintiff was the owner of said warrant; that same was overdue, and demand for payment had been refused, wherefore judgment was prayed.

The district, for its answer, alleged that it was created by special act No. 293 of the Acts of the General Assembly of 1917, and was given authority to construct certain roads, and in payment thereof to issue negotiable bonds of the district, and that, pursuant to this power, the district, on August 18, 1919, contracted with S. P. Turner, as the agent of the company, for the sale of $450,000, more or less, of the bonds of the district for the price of $439,065, or in that proportion, for the bonds issued to complete the work, payment to be made to meet the requirements of the district in constructing the improvement. That the sale to Turner, as agent of the company, was made pursuant to the terms of a written nroposal to purchase, which, writing concluded with the following paragraph: “In the event you should sell me these bonds, and your board should need a small fund to meet current and incidental expenses for your preliminary work, I would be glad to let you have, say, any amount up to twenty-five hundred dollars ($2,500) on your warrant, payable six (6) months, with six per cent. (6 per cent.) interest.”

That, after the acceptance of this proposal to purchase, the district notified the company, that $12,500 would be required for current and incidental expenses and preliminary work, and the company agreed to furnish the money, and did furnish it in the manner hereinafter set out, and received in payment, or as security, therefor, the warrant sued on.

There was an allegation in the cross-complaint filed by the district that the company had defaulted in its contract for the purchase of the bonds, and that, to meet its obligations, the district had been compelled to resell the bonds sold to the company, at a price less than the contract price, and there was a prayer for judgment for the loss thus sustained.

At the conclusion of all the testimony the court directed the jury to return a verdict in favor of the company, upon the ground that the contract for the sale of the bonds was made before the assessment of benefits, and was therefore void, and that consequently the company was under no legal obligation to buy the bonds, and, as it was not denied that the district had received the $12,500, judgment was rendered therefor, and the district has appealed.

For the affirmance of the judgment the company insists that the court properly directed a verdict in its ■favor, upon the ground stated, and also for the reason that the. writing sued on is the negotiable promissory note of the district, which the company acquired, for value, as an innocent purchaser.

Inasmuch as the verdict was directed in fay or of the company by the court, we must, of course, give the testimony its highest probative value in favor of the district in considering the questions of fact involved.

We consider, first, the question whether the writing is in fact a negotiable instrument in the sense that the district may not interpose the defenses set up in its answer and cross-complaint.

It will be observed that it appears, from the face of the instrument itself, that it was issued by a governmental agency, arid that it is unlike the instrument involved in the case of Road Imp. Dist. No. 4 v. Southern . Trust Co., 152 Ark. 422, which was in the form of a promissory note. The writing here involved is not in form a promissory note, but is an order on the district for a sum of money, which, in the contemplation of the parties, could not be paid and was not intended to ■ be paid until funds had been derived from the sale of the bonds themselves with which to make the payment. It is such an instrument as is ordinarily designated as a warrant. The undisputed testimony is that Mr. Duhme, the company’s secretary and its admitted representative, was present when the issuance of this warrant was authorized by the board of commissioners of the district, and knew all the circumstances attending its issuance. Duhme knew, as the warrant itself recites, that it was issued “on account of advance on bond purchase of said district,” and was issued pursuant to the paragraph set out above, which is copied from Turner’s proposal to purchase the bonds, in which it was agreed to make a preliminary advance, Turner having agreed, in Duhme’s presence, to make an advance of $12,500, instead of $2,500, as at first proposed; and Duhme also knew that the warrant covered that advance. In other words, the company had full knowledge of the contract for the purchase of the bonds, and of the consideration for the warrant. This fact will more fully appear in a discussion of another feature of the case, and we conclude therefore that the verdict should not have been directed in favor of the company- upon the theory that it was an innocent purchaser for value.

At the time the warrant was issued by the district and acquired by the company, there had been no assessment of the benefits, and the warrant was, on that account, a tentative obligation which might never acquire validi-tv in the hands even of an innocent purchaser, for, as will hereafter be fully shown, the district had no power to make enforceable contracts, except for preliminary expenses, until the betterments to accrue from the proposed improvements had been assessed and the fact ascertained that the betterments would exceed the cost of the improvement.

The controlling questions of fact are these: (1) Did Turner contract for himself, or for the company, for the rmrchase of the bonds? (2) Was the tentative contract ratified after the assessments had been completed and the power thus conferred on the district to make a valid enforceable contract?

Mr. Duhme testified, on behalf of the company, that the company was not a party to the contract for the purchase of the bonds, and that he was present, during the negotiations for the purchase of the bonds, in an advisory capacity only to Turner, who was acting solely for himself. Turner corroborates this statement. It appears, however, that Duhme was present during the negotiations, and actively participated in all the discussions relating thereto. The attorney for the district testified that, during these negotiations, Duhme stated what should be done in buying the bonds, so far as the purchasing side of it was concerned, and staled that the company was buying the bonds, but that the company wanted the contract taken in the name of Turner so as to help him get started as its ag'ent in this State. The commissioners substantially corroborated this statement, and they all testified that Duhme was largely deferred to in matters of detail, such as the date of the bonds and the places of deposit of the proceeds, and, after all the terms had been agreed upon and the sale consummated, some one cabed over the telenhone to innuire who had bought the bonds, and one of the commissioners, who answered the call, turned around and asked the name of the nure.haser, and Mir. Duhme said, “Friedman-D’Oench Bond Comp an v. ” The commissioner was not able to pronounce the name, and again asked the name of the nurphaser, when Turner snoke im and said, “Whv. sav S>. P. Turner bought the bonds,” and Duhme said, “That’s all right; let it go at that.”

The question of the advance to be made was then discussed, and the district asked for $12,500, but Turner said he did not have that much money, whereupon Duhme pcn'd the eomnauv would take care of that. It is true that the check which the proposal to bidders required the successful bidder to deposit was deposited bv Turner and signed by him, but this check was never cashed; and was not intended to be cashed. Upon the contrary, the warrant was attached to a draft drawn on Turner, the draft being dated September 10, but the draft was forwarded to St. Louis, the situs of the company, and was paid by the company on presentation on September 13, so that Turner, in fact, never advanced any sum on account of the warrant.. There are a few other circumstances, of more or less probative value, tending to show that the company was, in fact, the purchaser, but was acting in the name of its disclosed agent. These matters are all denied by Duhme and by Turner, but the truth of the evidence is, of course, for the jury, and we are of the opinion that, if the testimony on behalf of the district is accepted as true, it is legally sufficient to support the finding that Turner was acting as agent for the company, and that the company was the real purchaser of the bonds.

Counsel for the companv quote from the case of Gould v. Toland. 149 Ark. 477, the following statement of the law: “Where there was no assessment of benefits in a road improvement district, and therefore no ascertainment that the cost of the improvement would come within the assessed benefits to the lands in the district, a contract with a bond dealer for the sale of the district’s bonds is unenforceable, except as to advances made for preliminary expenses, which, with interest, may be recovered.”

We reaffirm what we there said; but it must be remembered that there ivas never any final assessment of benefits in that case, so that the contract for the sale of the bonds never became an enforceable agreement; while here the betterments were assessed and the fact definitely ascertained that the cost of the improvement would not equal the betterments assessed.

We have frequently, and recently, discussed the poiver of improvement districts to make contracts nrior to the assessment of benefits, and these cases need not be reviewed here. The law on the subject was summarized and restated in the case of Bowman Engineering Co. v. Ark. & Mo. Highway Dist., 151 Ark. 47, and it will suffice to quote from that case what we there said: “There was no separate contract with the engineers for the preliminary work, but the contract was one for the performance of all engineering work, both preliminary and permanent. We have decided in several cases that a contract for permanent work is premature and’ ineffective until it is determined, as a preliminary matter, what the estimated cost of the improvement will be and what the benefits will amount to, so that it can be seen that the cost will not exceed the benefits. Cherry v. Bowman, 106 Ark. 39; Thibault v. McHaney, 119 Ark. 188; Gould v. Toland, 149 Ark. 476. We said, in Thibault v. McHaney, supra, referring to Cherry v. Bowman, that, under authority of that case, a tentative contract might be entered into - for permanent work in advance of the assessment of benefits, yet such contract would not be operative and binding on the district until there has been an assessment of benefits. In Gould v. Toland we said that the premature contract for permanent construction remained in abeyance and did not become effective until the assessment of benefits had been made for the purpose of ascertaining whether the cost of the improvement would exceed in value the assessment of benefits. None of the cases referred to decide whether or not it is within the power of the commissioners to withdraw from a tentative contract before it becomes effective, and it is unnecessary to do so in the'present case, nor do those cases decide just what is necessary to make the contract effective. We think, however, that it follows necessarily from those decisions that there must be a distinct recognition in some form of the existence of the prematurely made contract, after the time comes for it to be made effective; in other words, when it is determined that the total cost of the imorovement will not exceed the benefits. In the present case there was an assessment showing benefits in excess of the estimated cost of the improvement, and therefore it was within the power of the commissioners to make the contract. The evidence shows that, after the assessments were completed and approved, the contract was treated as being in effect, and proceedings were taken thereunder looking to the construction of the permanent work. The engineers performed a substantial part of the contract in supervising the work of advertising and receiving bids for the letting of the contract. The case differs in this respect from Thibault v. McHaney and Gould v. Toland, supra, in that the facts in those cases were that there was never any assessments of benefits, and the time never came for the contract to become effective. The circumstances, in this case bring it directly within the rule in Morgan Engineering Co. v. Cache River Drainage Dist., 115 Ark. 437, where the contract for the whole of the engineering work was made in advance, as in the present case, and some of the permanent work was done thereunder. We decided in that case that the contract was valid, and that the obligations thereof could not be impaired by subsequent legislation, so far as concerned the payment of earned compensation for work done under the contract. ’

The assessments in the instant case were made both by proceedings in court, pursuant to the provisions of the act creating the district, and by a curative act, which was act No. 54 of the Acts of the Sneuial Session of the General Assembly for the year 1920, approved February 5, 1920.

But the question remains, did the contracting parties ratify the contract after the assessments were made? It was essential that this should thereafter be done, because, prior to that time, the contract for the sale of the bonds was tentative and did not bind either party, and this ratification could be effected only by the concurring acts of the parties, as neither could ratify for the other. This ratification, however, might be implied as well as express. Pike v. Douglas, 28 Ark. 59; Lyon v. Tams, 11 Ark. 189.

There is, of course, no question about a ratification by the district, as it has at all times insisted that the contract should be performed, and now so insists, and it lias constantly maintained that the company was entitled to the bonds, and was required by the contract to take them, and the testimony shows that the district used every effort to perfect the details incident to the approval of the bonds by the attorneys selected for that purpose, and to hasten their issuance and delivery.

The .contract of sale provided that the bond issue should be. approved by the firm of Rose, Hemingway, Cantrell & Loughborough, and the opinion of that firm was made conclusive of the question of the validity of the bond issue, and the testimony shows without dispute that the attorney for the district, acting pursuant to the directions of the board of commissioners of the district, was continually urging action by the examining attorneys, os the district had let a contract for the construction of the improvement and was anxious to obtain the money to meet its obligations arising under the construction contract.

We are of the opinion -that the case of Bowman Engineering Co. v. Arkansas & Mo. Highway Dist., supra, announces the correct rule whereby it may be determined whether there has been a ratification. On that subject we there said: “We think, however, that it follows necessarily from those decisions that there must be a distinct recognition in some form of the existence of the prematurely made contract after the time comes for it to be made effective.”

To effect ratification it is not required that there should be a part performance, or a re-execution of the contract, but there is required a distinct recognition in some form of the existence and binding effect of the premature contract, and, if there is such recognition, the contract is ratified. This view accords with the law of ratification applicable to any contract which requires ratification to acquire binding effect. For instance, in the very recent case of Hardy v. New Rocky Grocery Co., 159 Ark. 109, we said: “If appellant, with knowledge that appellees had 'furnished supplies to the Hensleys on the faith of this note, ratified it by treating it as an existing- liability on her part, it is unimportant that she supposed at the time that the note had been transferred to G-athright, instead of the name of appellees being substituted.” On page 8 of the same volume of the reports, in the case of Corning Roller Mills v. William Kelly Milling Co., we said: “Without reiterating and discussing the evidence, suffice it to say the correspondence between the appellant and the appellee shows that appellant, with full knowledge that the assignment had been made, ratified the same by recognizing the binding-effect of the contract, and asking the appellee to cancel the same, or, if it would not cancel the same, to indulge appellant in the matter of extending the time for shipment. ’ ’

See also, Whitehead v. Wells, 29 Ark. 99; Dierks Lbr. Co. v. Coffman, 96 Ark. 505; Gunter v. Williams, 137 Ark. 530; §§ 1765 and 1805, Page on Contracts.

At § 537 of Page on Contracts (2d ed.), it is said: “One who has entered into a contract which he might avoid because of personal incapacity, such as an infant, an insane person, a drunkard, and the like, has the election to affirm such contract, or to disaffirm it, and, when he has exercised his election, with full knowledge of the facts, such election is final. Accordingly, if such person elects to affirm the transaction, his election is final and conclusive, without any new consideration.”

It thus appears that ratification is a form of contract which requires no new consideration, if the voidable contract, made valid by ratification, was itself based upon a consideration.

Now, it must be conceded that the testimony does not show a ratification by the company, unless it is bound by Turner’s actions, and further, that Turner’s actions amounted, to a ratification. We have said that it was a question of fact for the jury to determine whether Turner was acting for himself, or for the company, in the purchase of the bonds; and if the jury should find that Turner was acting for himself, and not for the company, there would then be no question of ratification in the case. However, if Turner was acting for the company in the matter, then it would be bound by his actions, for, as we said in the case of Whitehead v. Wells, supra, the principal is affected with notice of all his agent knows in the line 'of his duty and the scope of his powers, and it was there held, to quote in part from one of the headnotes, " # * * that the jury might well have inferred a ratification of the defendant’s acts, if not from the conduct of the plaintiff in recovering the receipt, at least from that of the agent in assenting to the transaction. ’ ’ At. § 1805, Page on Contracts, it is said: "The express approval of an unauthorized contract and the adoption of it by agents who have authority to enter into such contracts on behalf of the corporation, amounts to a ratification.”

There is testimony to the effect that, after the assessments had been completed, Turner made numerous inquiries covering the time of the delivery of the bonds, and was insistent that the delivery be expedited, as the bond market was going to pieces and the bonds could not be sold to advantage if the delivery was postponed, and he is shown also to have discussed the rate of interest which the bonds should bear.' Turner insists that he not only acted for himself alone, but that he did nothing after the assessment was made in recognition of the binding effect of his confract. But this is a question for the jury to pass upon.

The bonds were purchased on the basis of $439,065 for $450,000 worth of bonds, which were to bear interest at the rate of 5y2 Per cent, but the contract gave the company the right to have the bonds bear 5y<¿ per cent., or a less rate, the price of the bonds being automatically adjusted to result in a payment by the district on the basis stated for whatever amount of bonds might be issued.

The district incurred a substantial expense in preparing the bonds for delivery, and in printing them, and, according to the testimony in its behalf, it was not until March 31 that Turner advised the district that the bonds would not be accepted, at which time the price of the bonds had fallen to such an extent that a large loss was sustained when the district was compelled to sell them at the then current market price, and it is this loss which the district seeks to recover in its .cross-complaint.

If, upon the issues which we have discussed, the jury should find for the district, then the district would be entitled to recover the difference between the market price of the bonds on the date when the district was first advised that the bonds would not be accepted and the contract price which the company had agreed to pay, together with the expense connected with the preparation and issuance of the second bond issue, made necessary 'by reason of the company’s default, after allowing the company credit for the advance of the $12,500.

In addition to what we have already said, two questions have arisen in our consultation which require some discusssion in view of the opinion of two members of the court. It is their view that these questions should be decided, inasmuch as the case is being remanded for a new trial.

One of these is that, if it be found by the jury that the contract for the purchase of the bonds was not in fact the company’s contract, but the- contract of Turner, the company would have no right to recover the advance made, because of its default in refusing to accept the bonds. In other words, it is their view that the contract was one for the sale of bonds, and the payment was made as an advance payment, and the contract is one which would be performed in its entirety only by the. delivery of the bonds by the district and the acceptance and payment thereof by the company. The $12,500 advance was to be repaid in bonds, and not in money. It was, in fact, an advance payment on the bonds, and the company cannot make default by refusing to accept the bonds contracted for and then profit by its own default by asking the return of the payment made under the contract.

It is the opinion of the majority, however, that the ’ question does not arise for the consideration of the jury, for the following reasons: No such issue is raised by the pleadings, and is not discussed in the excellent briefs filed by eminent counsel in the case. It would, in the opinion of the majority, be a contradiction in terms to say that the company had made an advance payment under a contract, yet had made no contract. The district, by filing a counterclaim, has waived the question that the company defaulted by refusing to accept the bonds. There is no question now about the warrant having- been prematurely issued, for the assessments have been made and completed, and the $12,500 was used by the district in the construction of the improvement, and that sum, by whatever name it may be called, has become a valid subsisting obligation of the district, and should be paid to the legal owner thereof, and no one questions the company’s ownership.- Indeed, as we understand the case, the district admits its liability to the plaintiff for the amount of this warrant and the interest thereon, and it seeks only to recoup damages for the alleged breach of the contract of purchase.

The second question which has arisen in our consultation is the effect of the decision in the case of Hopson v. Hellums, 111 Ark. 421. It is the view -of the Chief Justice and Mr. Justice Hart, that the case cited holds that the directors of an improvement district, operating under a statute like the one there involved — or like the one which created the appellant road improvement district — had no authority to make a binding executory contract for the sale of bonds, even though the assessments have been completed and have become final when such contract is made, and that the contract out of which the instant litigation arose is void for that reason.

The majority do not concur in that view, for two reasons. In the first place, we do not interpret the case cited as holding that the district had no authority to make an executory contract for the sale of its bonds. We do not understand that the question of the right of the commissioners to make an executory contract was either considered or involved.

In a prior appeal (Hopson v. Hellums, 108 Ark. 460), a contract for the construction of the proposed improvement had been held to be void as against public policy because the commissioners had, apparently, let a single contract for the construction of the improvement and the sale of the district’s bonds. We held that there should have been separate contracts for the construction of the improvement and for the sale of the bonds. In other words, that the contract 'for the construction of the improvement should be let for a sum payable in money, and not in bonds, in order that 'competition might be encouraged, and that the bidding might not. be limited to those contractors only who were able to accept bonds in payment for their work.

Upon the remand it was insisted that there was a separate letting of the contract for the construction of the improvement and for the sale of the bonds, although the same party was the successful bidder for both cop-tracts. We held, on the second appeal, that there was no legal objection to the contractor for the-construction of the improvement purchasing the bonds of the district when they were not purchased -at the same time as the letting’ of the construction contract. Hopson v. Hellums, 111 Ark. 421.

It appears, however, from the facts stated in the opinion on the second appeal, that the General Assembly, on March 8, 1913, passed an act whereby it was provided that the commissioners of the improvement distract were forbidden from issuing any bonds whatever without first being petitioned so to do by a majority in numbers, acreage and value of the landowners in the district, and it was insisted by those who opposed the construction of the improvement that this consent had not been obtained. In opposition to this view, it was contended that the district had already contracted for both the construction of the improvement and for the sale of the bonds, and that the act was invalid as impairing the obligation of those contracts. The court made a finding that, prior to the passage of the act of the General Assembly, valid contracts had been entered into, and that the act was void because it impaired the obligation thereof.

Without repeating here the facts there recited, it may be said that we reversed the finding and decree of the court below, not because of the lack of power on the part of the district to sell the bonds, but because, as a matter of fact, the district had not done so. We said the testimony of Hahn, the alleged purchaser, “shows that he had not in reality purchased the bonds himself, but was only attempting to have some one else purchase them,” and that “the whole proceeding in regard to the borrowing of the money and the sale and purchase of the bonds was in fieri.” In other words, Hahn had contracted to do the work and had agreed to find a buyer for the bonds at a stipulated price to the district, but had failed tp do even that before the act of March 8, 1913, was passed.

But, if it should be held that the district has no power to make an executory contract for the sale of bonds, that holding would not affect the contract set out above, because it became a complete and binding contract, if the facts be found as the district contends they are. There has even been a part performance of it by a substantial payment to the district, to be applied in partial discharge of the obligation assumed, according to its terms, by the purchaser.

For the error in directing the verdict the judgment is reversed, and the cause remanded for a new trial.

-McCulloch, C. J.,

(dissenting). My conclusion is that the court erred in directing a verdict against the district for the recovery of the sum of money ($12,500) advanced on the purchase of bonds. If there was a valid contract for the sale and purchase of the bonds, as contended by the district, and as a majority of the judges now hold, then the district was entitled to submit its counterclaim for damages on account of the breach of the contract by appellee. On the other hand, if there was no valid contract for the sale of the, bonds, as I believe to be the case, then appellee is not entitled to recover the amount mentioned, for the reason that it refused to comply with the agreement to purchase the bonds. And since the money was advanced, not as a loan, but as a mere advance on the purchase of bonds, appellee should not be permitted to demand the return of the money without complying with the agreement upon which the money was advanced.

It seems clear to me that, whether the contract for the purchase of the bonds was valid or not, appellee should not be permitted to repudiate its agreement and, at the same time, demand a return of the money advanced conditioned upon that agreement. I have failed to see any contradiction of terms involved in this feature of the controversy, as stated by the majority. It is a simple principle of justice that a party cannot repudiate his contract and at the same recover upon it, and, even if tho> contract was valid for any reason, and the money was advanced on the contract, the party who refuses to perform cannot recover it back. The party should not permitted to repudiate one part of the contract and claim the benefits under another part.

It is unimportant to determine from the evidence whether Turner was appellee’s agent or no't, for it is undisputed that the money was advanced on the purchase of bonds, and, even if Turner acted for himself in the transaction, appellee knew that the money was not a loan, but was merely an advance on the purchase of bonds. In fact, the written instrument upon which appellee instituted this action shows on its face that it was for money advanced on the purchase of bonds.

I am further of the opinion that the majority reached the wrong conclusion in holding that there was a valid contract for the sale of the bonds, and that there was an issue to be submitted to the jury as to the right of the district to recover damages for the alleged'breach of the contract by appellee.

My interpretation of the decision of this court in Hopson v. Hellums, 111 Ark. 421, is that, under the statute authorizing the commissioners of the district to borrow money and issue bonds, there was no authority to enter into an executory contract for the sale of bonds. The authority thus conferred is limited to the borrowing of money and the issuance of bonds as the evidences of the indebtedness. In the case referred to there had been a contract between a drainage district and Hahn & Carter for the construction of an improvement, which the court held, in the second opinion in the case, to be a valid contract, and there was also a contract for the sale of the bonds. The bonds had been prepared and signed and1 delivered to a bank in Pine Bluff for delivery. Subsequently the Legislature enacted a statute making it unlawful for the commissioners of the district to issue bonds except upon petition of a majority of the landowners, and it was contended (in fact the trial court so held) that the statute was void because it impaired the obligation of the contract. We held, however, that there was no impairment -of the obligation of the contract, for the reason that the contract was not binding on the district until the money was actually loaned and the bonds delivered. We held, in effect, that there was no authority to create an obligation by making an executory contract to borrow money and. sell bonds. In disposing of the matter, we said:

“This testimony conclusively shows that Hahn & Carter, at the time of the passage of the act of March 8, 1913, had not entered into a completed contract with the board whereby it had sold to them for cash the bonds of the district. The whole proceeding, as we view the evidence, in regard to the borrowing of the money and the sale and purchase of the bonds, was in fieri. The commissioners, under the former opinion, on rehearing, were not prohibited from borrowing money from,, and selling the bonds to, the contractors, but there can be no issuance and sale of bonds in the sense of the statute authorizing the board to issue and sell the same except when there has been a completed contract by which the money has been borrowed on such bonds. Section 15 of the act, under which the board was authorized to proceed, provides that, ‘in order to hasten the work, the board may borrow money, * * * and may issue negotiable bonds therefor.’ Under the plain terms of the statute, it does not appear from the evidence 4in this record that the board of commissioners had borrowed any money or issued and sold any bonds for money borrowed prior to the passage of the act of March 8, 1913. ’ ’

After careful reconsideration of the matter with the other judges, I am unable to escape the conclusion that the plain and necessary effect of that decision was to hold that there was no binding obligation until there was an actual lending of money and issuance, and delivery of bonds. I think that is the correct interpretation of the statute, for mere authority to borrow money and issue evidences of the debt does not authorize a preliminar}7 executory contract to borrow money. In other words, there is no contract between the parties until the money is actually borrowed, and that is precisely what was said in the opinion in Hopson v. Hellums, supra.

My conclusion upon the whole case is that appellee was not entitled to recover for the money advanced, for the reason that it refused to accept bonds which had been tendered, and that, on the other hand, appellee is not liable for damages for breach of the contract, which was invalid, and that the case should be disposed of here by reversing the judgment and dismissing both the original complaint of the district and the counterclaim of appellee.

Mr. Justice Hart concurs in these views.


source: Caselaw Access Project

author: McCulloch, C. J. "Wood, J.,

license: Public Domain

text:
    Ex parte Dame.
    Opinion delivered November 19, 1923.
    Courts — jurisdiction op supreme court — writ op habeas corpus.— The Supreme Court has no authority to supervise or control the action of courts inferior to the circuit court, except by reaching back through the decisions of the latter court.
    Certiorari to Jackson County Court.
    Writ denied.

      Pope $ Bowers, for appellant.

      J. S. Utley, Attorney General, John L. Garter, Wm. T. Hammock and Darden Moose, Assistants, for appellee.
   McCulloch, C. J.

The petitioner, Ben Dame, was, by the verdict of the coroner’s jury in Randolph County, committed to jail on the charge of unlawful homicide, and he presented a petition to the county judge of that county for a writ of habeas corpus for the purpose of inquiring into his right to bail. On the return of the writ the county judge heard the evidence, and made an order denying bail. The petitioner now comes to this court with a petition for certiorari to bring up for review the proceedings before the cotmty judge, and he is met at the outset by the contention of the Attorney General that the writ- will not run from this court to the county court, or the judge thereof, and that this court has no jurisdiction to review the action of the county judge or the county court except through a decision of the circuit court.

We are of the opinion that the contention of the Attorney G-eneral is correct, and that this court has no jurisdiction in the matter as it now stands. The jurisdiction of this court, except in the single matter mentioned in the Constitution as to quo warranto proceedings, is limited to appellate and supervisory jurisdiction over the inferior courts of law and equity, meaning, of course, the circuit and chancery courts. Art. 7, § 4, Constitution of 1874. The Constitution expressly vests in the circuit courts of the State “a superintending control and appellate jurisdiction over county, probate, court of common pleas and corporation courts and justices of the peace, and shall have power to issue, hear and determine all the necessary writs to carry into effect their general and specific powers.” Art 7, § 14. Other sections of the Constitution expressly confer the right of appeal to the circuit court from all such inferior courts. Art. 7, §§ 33-35. In construing these various provisions of the Constitution we have decided that this court has no power to supervise or control the action of courts inferior to the circuit court except by reaching- back through the decisions of that court. Featherstone v. Folbre, 75 Ark. 510, Jones v. Coffin, 96 Ark. 332.

In Featherstone v. Folbre, supra, it was said: “Under our judicial system, appeals from all tribunals inferior to the circuit courts go to the circuit courts, and from the circuit courts to this court. This court has no original jurisdiction to control or supervise any proceedings of the probate court. That all belongs to the circuit court as matters; of original jurisdiction, and to this court by appellate and supervisory jurisdiction over the circuit courts. This court supervises and controls all courts inferior to the circuit courts only through the latter courts. In no other way can the harmony of our judicial system, as at present constituted, be - preserved. Construing the two sections of the Oonstitution as above quoted, our conclusion is that the framers of the Constitution of 1874 did not intend to confer upon the Supreme Court concurrent jurisdiction with the circuit courts to issue . writs of mandamus, etc., in aid of the appellate and supervisory jurisdiction of the circuit courts over inferior courts, but only in aid of its own appellate and supervisory jurisdiction, and its supervisory jurisdiction over the probate courts comes, not originally, but by way of appeal and supervision, through the circuit courts.” The Constitution provides (art. 7, § 37) that a county judge “shall have power, in the absence of the circuit judge from the county, to issue, hear and determine writs of habeas corpus, under such regulations and restrictions as shall be provided by law,” and it is contended by counsel for petitioner that this provision of the Constitution-raises the county court to a place of equal dignity with the .circuit court, with concurrent jurisdiction in issuing and hearing writs of habeas corpus, and brings it within the range of the appellate and supervisory control of this court. That contention is unsound, for the provision of the Constitution with reference to jurisdiction of • a county judge to issue and hear writs of' habeas corpus does not change the status or grade of the county court or of the county judge, when acting judicially, nor does it exempt it from the supervisory control of the circuit court. This provision is put into the Constitution as an additional protection to the citizens’ right of liberty, but it fits into the Constitution as a part of the harmonious whole and is subject to the other provisions of the Constitution with reference to supervisory control of the various courts.

It is argued with special earnestness that the provision in § 37, art. 7, of the Constitution, conferring power on county judges to issue orders for injunctions and other provisional writs in the absence of circuit judges, subject to review in vacation by the -circuit judge, demonstrates that the framers of the Constitution did not intend to confer authority on circuit courts to review the orders of county judges in issuing, hearing and determining writs of habeas corpus. The obvious purpose was to authorize superior judges to review in vacation the orders of county judges granting injunctions or other provisional writs, so that such orders should not necessarily remain in force until the superior court should convene to review them in term time. The provision has no reference to writs of habeas corpus and does not affect the general authority of a circuit court to exercise superintending control over inferior courts. The authority of the county judges to issue and hear writs of habeas corpus is conferred upon them as a part of their duties as the presiding judge of the court, and the hearing is a judicial act subject to review under the superintending control of the circuit courts.

It is true, as urged by counsel, that courts of equal power and dignity have no power to review or control the decisions of each other, but it does not follow from that axiom that, merely because concurrent jurisdiction is conferred upon two courts, one is divested of jurisdiction to review the decisions of the other. That depends upon the Constitution, which confers the jurisdiction. As an illustration, attention may be called to the fact that our Constitution confers concurrent jurisdiction in certain civil and criminal matters upon justices of the peace and circuit courts, yet the superintending control of the circuit court over justices of the peace is expressly granted. So it is with the jurisdiction of the county judg’e in the matter of habeas corpus, and, as before stated, the fact that the county court, or county judge in vacation, has jurisdiction in such matters does not exempt the exercise of that jurisdiction from the superintending control of the circuit court.

The jurisdiction of each of the courts in our system is a matter of constitutional control, as each derives its several powers from the Constitution, or, at least, is controlled by constitutional limitation. The writ of habeas corpus, with all of its ancient sacredness, does not rise above other constitutional provisions regulating the exercise of judicial power. It merely fits into our judicial system, along with other provisions. .The reasoning of Mr. Justice Scott, in his dissenting opinion in the case of Ex parte Hunt, 10 Ark. 288, which was adopted in the later case of Carnall v. Crawford County, 11 Ark. 604, and other cases since that date, is applicable.

It is further contended that, even if the circuit court has appellate and supervisory control over the decisions of the county court or county judge in matters of habeas corpus, such control must be. exercised by the circuit court, and not by the judge in vacation, and that, as there may be delay in waiting for the circuit court to convene so that the jurisdiction can be exercised, this presents a situation which compels the exercise of superintending control by this court. This 'Contention is not ’ sound, for the reason that the jurisdiction of this court cannot be affected, one way or the other, by the necessary delay in the exercise of the supervisory control by the circuit court of inferior courts and tribunals. The jurisdiction of the county court over habeas corpus is conferred, as we have already said, for the convenience and benefit of persons who are being deprived of their liberty, but, when that jurisdiction is invoked by a person, he must abide by the established provisions with reference to supervisory control over that court. He invokes the exercise of the jurisdiction with its limitations, and the fact that there may be possible delay in the exercise of supervisory control by the circuit court does not enlarge the power of this court. The same argument was made in Featherstone v. Folbre, supra, and was rejected by this court as unsound. This court has decided in several cases that a hearing on habeas corpus before a judge is the exercise of judicial power, which may be reviewed on certiorari (Ex parte Jackson, 45 Ark. 158; State v. Neel, 48 Ark. 283; State v. Williams, 97 Ark. 243), but in none of those decisions is it intimated that this court can exercise a superintending control directly over the proceedings of courts inferior to the circuit court. The effect of the decisions in those cases is merely that the absence of the right of appeal, on account of the fact that the judicial power is exercised in vacation, does not prevent the exercise of superintending control on certiorari, which is thus made, ex necessitate, a substitute for appeal, but this does not work any change in the constitutional jurisdiction of the court in the exercise of such supervision. Those decisions, giving full effect to them, still leave the jurisdiction of .this court limited to the control and super vision of . chancery and circuit courts.

It follows that the petition for certiorari should' be denied, and it is so ordered.

"Wood, J.,

(dissenting). In classifying the rights of persons, next to the right to enjoy life and to have one’s body secure from injury, is the right of the personal liberty of individuals. 1 Blackstone’s Comm., star joages 128-133. “This personal liberty,” says Blackstone, “consists in the power of locomotion, of changing situations, or moving" one’s ’person to whatever place one’s own inclination may direct, without imprisonment or restraint, unless by due course of law.” I Blk. Comm., p. 131, § 2. This liberty of the individual — freedom of the person— is the bedrock of all the highest and best civilizations of the earth. Without it there can be no progress in the arts and sciences, no worthwhile development in government, no health, happiness or prosperity, and life itself would be an unendurable burden. The peculiar form of the writ or instrument, which has been devised and resorted to in times of peace through all the ages since its origin, to preserve this freedom of the person, is known in our law as habeas'corpus — technically, “habeas corpus ad subjiciendum et recipiendum.” It .is a high prerogative writ, a writ of right upon proper application, which existed at the common law independent of statute, and which is issued by a court, judge or tribunal having authority to issue it, and “directed to the person detaining another, and commanding him to produce the body of the prisoner with the day and cause of capture and detention {ad faciendum, subjiciendum, et recipiendum) to do, submit to, and receive, whatsoever the judge, court, or tribunal awarding such writ, should consider in that behalf.” 3 Blackstone, Comm. 131. By the common law it issued out of the Court of King’s Bench, corresponding to our State courts of last resort, not only in term time, but also durin g the vacation, by a fiat from the Chief Justice or any other of the judges. When issued in vacation, it was usually returnable before the judge himself who awarded it, who proceeded thereon, unless the term intervened, when it was returned into court. 3 Blk. Comm.., star page 131; 4 Bacon’s Abr. 364.

So important has been this writ to the rights and happiness of individuals in particular and the civilization of mankind in general, commentators on the laws of England and this country have written of it at length. Several law writers have made it the exclusive subject of large volumes; historians and encyclopedists have made it the subject of special themes and given it the extensive treatment its place in history demands. Some of them, seemingly with crusader’s zeal, have endeavored to trace the history of the writ to its origin, but, as yet, no one has been able to find it. It is treated by historians and law writers as a primordial fact of history, but its origin is hidden in the depths of antiquity. See ‘‘Story of Habeas Corpus,” 18 Law Quarterly ¿Review, p. 64; 29 C. J., p. 9, § 2. Since the love of freedom is a natural emotion deeply implanted in every sentient intelligent human being, it is safe to say that some peaceful legal method for securing the liberty of the individual, of the same purport as that of our present writ of habeas corpus, must have been coeval with organized society and established government. One writer says: “In the interdict De libero homine ex habendo the origin of the English habeas corpus may be traced. Such, in the ¿Roman law, was the name' of the writ founded on the perpetual edict of the praetor: “Ait praetor: quern liberum dolo malo retines exhibeas — the praetor declares: Produce the freeman whom you unlawfully “detain.” This edict was compiled and is found in the Pandects of Justinian, and the comments of the celebrated Roman lawyers thereon show that the application -of the edict and the writ involved the same principles as in our habeas corpus ad subjiciendum of the English law, and the latter most probably was therefore borrowed from the civil law. Lane v. Cotton, 12 Mod. R. 482; Acton v. Blundell, 12 Meeson & Welsby, 353; Bechervaise v. Lewis, L. R. 7 Common Pleas 372; Agnew v. Belfast Banking Co., 2 Irish Reports 204, collated in Howe’s Studies of the Civil Law, p. 128-129.

Glanvil, Coke and Blackstone all mention ancient writs which were in existence long before Magna Charta for liberating persons who had been unjustly imprisoned on criminal charges. Church on Habeas Corpus, p. 3, § 3; Coke’s Institutes, 3rd Part, p. 209; 4th Part, p. 182; 2 Blk. Comm., star pp. 128-129. Mr. Blackstone says: “The great charter of liberties which was obtained, sword in hand, from King John, and afterwards, with some alteration, confirmed in Parliament by King Henry Third, his son, contained very few new grants, but, as Sir Edward Coke observes, was for the most part declaratory of the principal grounds of the fundamental laws of England.” “The Great Charter,” he says, “was afterwards confirmed by the statute of the 25th of Edward I and directed to be allowed as the common law, and sentence of excommunication was directed to be denounced against all those that by word, deed, or counsel act contrary thereto, or in any degree infringe it.” I Blk. Comm., star pp. 127-129.

The 36th chapter of the Great 'Charter provides: “Nothing shall be given or taken for the future for the writ of inquisition of life or limb; but it shall be given without charge, and not denied.”

The 39th chapter of the Great Charter declares: “No freeman’s body shall be taken, nor imprisoned, nor disseised, nor outlawed, nor banished, nor in any way be damaged, nor shall the King send him to prison by force, excepting by the legal judgment of his peers, and by the laws of the land. ’ ’ And chapter 10 declares: 4 4 To none will we sell, to none will we deny, to none will we delay right or justice.” These declarations of the Great Charter were intended to conserve-personal liberty, to protect the person of the individual against illegal imprisonment. They contained the most rigorous restraint upon arbitrary power that the world hitherto had known; they furnished the germ of that individual liberty protected by law which henceforth was t'o be the archetype for all written constitutions, especially of the English-speaking race, preserving the liberty of the individual and the freedom of the person against illegal restraint of every character and from the encroachments of arbitrary power in government. These declarations do not expressly mention the-ancient writs, “ de odio et atia,” “de homine replegiando,” spoken of by Glanvil, Coke and Blackstone, but they were intended to preserve and enlarge to Englishmen for all time all. the rights that had obtained under these ancient writs, and more. One of the most sacred of these rights was to prevent any person remaining in prison until the arrival of the justices in Eyre, when he should be tried. See Richard Thompson’s Essay on Magna Charta, p. 218. Therefore the above declarations of the Great Charter, it would seem, were sufficient of themselves, if duly enforced, to have forever guaranteed the personal liberty of Englishmen.

However, notwithstanding the Great Charter had been declared and put in force as the common law, and had been confirmed and enlarged in other charters, notably by those of Henry III and Edward I, and although it was corroborated by a multitude of subsequent statutes, which Sir Edward Coke reckons at thirty-two from the first Edward to Henry IY (2 Inst. Proem.), nevertheless the royal prerogative was still bold and strong. It continued so throughout the reigns of the Plantagenets, the Tudors and the Stuarts. During this long period there was a constant struggle to advance arbitrary power in defiance of the rights and liberties secured to the people of England by the Great Charter. Although the charter of liberties was declared to be the 'common law, and had not been repealed, nevertheless a tribunal called' the Star Chamber flourished, which did not proceed according to the common law. This .tribunal dispensed with trial by jury, proceeded on rumor, applied any torture, and inflicted any punishment short of death. It, with the “high commissioner” and the “privy council,” were powerful auxiliaries of cruel and rapacious rulers to force the nobility, the gentry and the yeomanry alike to bow in servile obedience to the will of the crown. The cruel and unusual punishments, horrible tortures, excessive fines, and outrageous exactions inflicted and imposed, often without any opposition from, and with the warrant of, the judges themselves, during the reigns of such tyrannical rulers as Henry VII, Henry VIII, and Bloody Mary, of the Tudors, and James I, Charles I, Charles II, and James II of the Stuarts, finally brought forth from Parliament the Petition of Right of Charles I, the Habeas Corpus Act o-f Charles II, and the Bill of Rights of James II. These were indeed all fresh charters of liberty, and the most famous was the Habeas Corpus Act of the 31st of Charles II, .which, Macaulay says, was “the most stringent curb that ever legislation imposed on tyranny.” '2 Macaulay, Hist. England, 3.

Such is the history of the writ of habeas corpus, so far as it is necessary to trace it in England, an account of which may be found in any of the standard English 'histories, such as Hallam’s Const. History, Hume, Macaulay, and Green. This history, as we shall now see, enters into the very warp and woof of the fabric of 'the jurisprudence of our own country and judicial system.- A knowledge of this history is absolutely necessary to the proper construction of our own Constitution and statutes concerning habeas corpus.

Our forefathers inherited all the ancient rights and liberties that had been guaranteed to Englishmen under the free Constitution of Great Britain, as declared in Magna Charta, the Petition of Right, and the Bill of Rights, which three, Lord Chatham, the great commoner of that day, pronounced the “Bible .of the English Constitution.” These were declaratory of, and intended to secure, personal rights which the freemen of Great Britain contended were a part of .their birthright under the common law long before Magna Charta. In these great documents our ancestors, the American colonists, found the prototype for their Declaration of Independence from the mother country, and, after it had been achieved by Revolution, for the Constitution of the United States. “It was,” says Judge Story, “under the consciousness of the full possession of the rights, liberties and immunities of British subjects, that the colonists, in almost all the early legislation of their respective assemblies, insisted upon a declaratory act acknowledging and confirming them.” 1 Story’s Const., § 165; Hurd on Habeas Corpus, chp. 5; Ex parte Yerger, 8 Wallace 85-95. See Ex parte Holman, 28 Ia. 125; People ex rel. Tweed v. Liscombe, 60 N. Y. 559; also “Magna Charta in America,” 17 Columbia Law Review, p. 1; “Origin of Magna Charta,” 1 Canada Law Journal, pp. 202-5.

The Constitution of the United States and .of all the States of the Union recognize the privilege of the writ of habeas corpus as one which every person in the United States is entitled to as a co-heir of all the rights, liberties and immunities of the free and natural-born 'subjects of Great Britain, as those rights were declared and enforced under the free constitution of that realm. The right of personal liberty, after Magna Charta, was ever a favorite object of the English law, and the most celebrated of the numerous acts of Parliament which, were intended to protect and preserve that liberty is the statute of the 31st of Charles II, “which,” Blackstone says, “is frequently considered as another Magna Charta of the Kingdom.” 3 Blackstone, Comm., star p. 136. Mr. Iiurd quotes an elegant philosophical writer as saying of the-Habeas Corpus Act of the 31st of Chas. II, “we must admire it as the keystone of civil liberty, the statute which forces the secrets of every prison to be revealed, the cause of every commitment to be declared, and the person of the accused to be produced, that he may claim his enlargement, or his trial within a limited time. No wiser form was ever opposed to the abuses of power.” Hurd on Habeas Corpus, 99.

Mr. Hallara says before the enactment of this Habeas Corpus Act “it was also a question whether a single judge of the Court of King’s Bench could issue the writ in vacation. The statute therefore enacts that, where any person other than persons convicted, or in execution upon legal process, stands committed for any crime except for treason or felony plainly expressed in the warrant of commitment, he may, during the vacation, complain to the chancellor, or any of the twelve judges, who, upon sight of a copy of the warrant, or an affidavit that the warrant has been denied, shall award a habeas corpus.” 3 Hallam’s Const. Hist., p. 20. Hume says, “the Great Charter had laid the foundation for this valuable part of liberty; the Petition of Bight had renewed and extended it, but some provisions were still wanting to render it complete and prevent all evasion or dplay from ministers and judges.” 2 Hume’s Hist, of England, 568. Those provisions were supplied by the Habeas Corpus Act, which has as its dominant note the issuance of the ivrit, in vacation. “Every prisoner,” says Green, “committed for any crime, save treason or forgery, was declared entitled to his writ, even in the vacations of the court, and heavy penalties were enforced on judges or jailers who refused him this right.” 2 Green’s England, p. 431.

“The Habeas Corpus Act,” the statute of the 31st of Charles II, says Chancellor Kent, “restored the writ of habeas corpus to all the efficacy to which it was entitled at common law and which was requisite for the due protection of the liberty of the subject. That statute has been reenacted or adopted, if not in terms, yet in substance and effect, in all the United States. * * The substance of 'the provisions on the ^subject of the writ of habeas corpus may be found in the statute of the 31st of Chas. II, clip. 2, which is the basis of all the American statutes on the subject.” 2 Kent’s Comm., p. 9, 43-44. Our habeas corpus act, as found in the Revised Statutes, p. 433 (ch. 79, Crawford & Moses’ Digest), is referred to in a note to Judge Kent’s text as being modeled after the statute of 31st of Chas. II. That -statute, among other things, provides that it shall be the duty of any court of record, or the judge of any court of record, in vacation, to issue the writ of habeas corpus whenever “there is evidence, from any judicial proceeding had before them, that such person is illegally confined or restrained of his liberty within the jurisdiction of such -court or judge.” Sections 7 and 9, ch. 73, Revised Statutes, and §§ 5084 and 5090, Crawford.& Moses’ Digest.

The provisions of our Habeas Corpus Act, supra, were a part of the laws of the Territory of Arkansas, and were brought into the Revised Statutes of the State soon after the State was admitted into the Union under an act for a revision of the statute laws of the State, approved Oct. 6, 1836, which statutes, as revised, were adopted*by the General Assembly of the State in the year 1837. In the -Constitutions of the State of 1836,1861,1864 and 1868,' it is expressly declared that “the privilege of the writ of habeas corpus shall not be suspended unless when, in cases of rebellion or invasion, the public safety will require,” and the provision of our present Constitution is that “the privilege of the writ of habeas corpus shall not be suspended, except by the General Assembly in case of rebellion, insurrection or invasion, as the public safety may require it.” Article 2, § 11. Our present Constitution also contains the - following provision: “In the absence of the circuit judge from the county, the county judge shall have power to issue orders for injunctions and other provisional Writs in their counties, returnable to the court having jurisdiction, provided that either party may have such order reviewed by any superior judge in vacation in such manne'r as shall be provided by law. The county judge shall have power, in the absence of the circuit judge from the county, to issue, hear and determine writs of habeas corpus under such regulations and restrictions as shall be'provided by law.” Article 7, § 37.

All the constitutions adopted from 1836 to 1874, inclusive, contained the following provisions: “The Supreme Court, except in cases otherwise provided by this Constitution, shall have appellate jurisdiction only, which shall be coextensive with the State, under such restrictions as may from time to time be prescribed by law. It shall have a general superintending control over all inferior courts of law and equity; and, in aid of its appellate and supervisory judisdiction, it shall have power to issue writs of error and supersedeas, certiorari, habeas corpus, prohibition, mandamus, and quo warranto, and other remedial writs, and to hea;r and determine the same. Its judges shall be conservators of the peace throughout the State, and shall severally have power to issue any of the aforesaid writs.” Article 7, § 4, Const, of 1874.

Now, some of the members of the Convention of ■1874 which framed our present Constitution were very able lawyers. They were familiar with the provisions of prior, constitutions and with the provisions of the habeas corpus act as contained in the Revised Statutes, and, as some of them also were learned men and students of history, they had a thorough knowledge of the history of the writ of habeas corpus as I have traced it above and of the common law and statutes of Great Britain providing for the privileges of this writ and for their enlargement and enforcement. Having this history in mind, it cannot be doubted that the framers of onr present Constitution intended by the various provisions concerning the writ of habeas corpus, to which I have referred, to give this writ a unique and distinctive place in our jurisprudence and judicial system. They intended to give it that preeminent place commensurate withits-glorious history in the civilization of mankind. For arbitrary power in government and personal liberty — the freedom of the person — have always been “deadly foes, ever at dagger’s point in endless feud,” and this great writ of right, through all the centuries, has been, in times of peace, the the most powerful instrument in the hands of the individual to thwart the will of cruel and despotic rulers in their efforts to repress and restrain personal freedom. It is the constitutional bulwark erected by the Anglo-Saxon race to protect the individual against illegal imprisonmnent and to guarantee the liberty of his person against unlawful restraint of every character.

Keeping in mind the history of this writ, as it comes to us from the remotest antiquity and as it obtained under the common law, and as it has been enforced since Magna Charta under the acts of Parliament in Great Britain for hundreds of years, especially since the enactment of what is known as the Habeas Corpus Act of the 31st of Chas. II, ch. 2, supra, I have not the slightest doubt that it was the intention of the framers of our organic law, Federal and State, to make it impossible in this country for an individual to be unlawfully restrained of his liberty for any longer time than is absolutely necessary to apply to some court, or some judge in vacation, having jurisdiction, for the writ of habeas corpus to have the cause of his imprisonment inquired into.- It would be a travesty upon our jurisprudence and a reproach to our judicial system if it were otherwise. But it is not.

The purpose of the framers of our Constitution in article 7, § 37, supra, is to give the county judge precisely the same jurisdiction, in the absence of the circuit judge from the county, to issue, hear, and determine the writ of habeas corpus, that the circuit judge has. In the absence of the circuit judge from the county, the county judge takes his place. He is, for the purpose named, in the absence of the circuit judge, a circuit judge in jurisdiction, and his order in the judicial proceeding-before him is not to be reviewed by the circuit court or judge, but is to be reviewed by the only tribunal that has appellate and supervisory jurisdiction over the circuit court and circuit judge, to-wit, the Supreme Court, or one or more of its judges in vacation, in aid of the appellate jurisdiction of the Supreme Court.

According to the express language of article 7, § 37, supra, a county judge, in the absence of the circuit judge from the county, has the power to issue orders for injunctions and other provisional writs in their counties, returnable to the court having- jurisdiction of those writs, and the order issuing such provisional writs (such as injunction, mandamus, etc), may be reviewed by any superior judge in vacation in such manner as may be provided by law. But not so with the order of the county judge, acting in the absence of the circuit judge, in the writ of habeas corpus proceeding. The orders of the county judge in habeas corpus proceedings, in the absence of the circuit judge, are not subject to review by the circuit judge or circuit court for the very reason that, for this time and this purpose, he is, by the Constitution, substituted for the circuit judge. He is ad hoc the circuit judge, with the same judicial power as the circuit judge, and there is no judge or court above him except the Supreme Court or the judges thereof. The statute, § 5084, C. & M. Digest, was passed in conformity with art. 7, § 37 of the Constitution, supra, and gives the county judge jurisdiction “coextensive with his county, in the absence of the circuit judge therefrom, to issue, hear and determine writs of habeas corpus' on proper application of parties entitled thereto, in all cases and with lilce powers in which the circuit judge mav issue and determine such writ. ’ ’ ' When the county judge has exercised these powers, under the Constitution and statute, Ms final order in the proceeding must be reviewed by the same method and in the same manner that the order of the circuit judge is reviewed, which manner and method are pointed out in Ex parte Hart, 39 Ark. 126; Ex parte Goode, 19 Ark. 410; Ex parte Kittrell, 20 Ark. 499; Ex parte Jackson, 45 Ark. 158; State ex rel. Ark. Industrial Co. v. Neal, 48 Ark. 283; Skate ex rel. Attorney General v. Williams, 97 Ark. 243.

It is quite certain that, if the framers of the Constitution had intended to give the circuit judge or the circuit court the power to review the order of the county judge in habeas corpus proceedings, in the absence of the circuit judge from the county, they would have expressly granted such jurisdiction to the circuit court, or circuit judge in vacation, just as they did in eases of injunctions and other provisional writs. The fact that they did not do so shows that it was their intention that the county judge, acting in the absence of the circuit judge from the county, in issuing, hearing and determining writs of habeas corpus, should be substituted for the circuit judge, and that his order in the proceeding should be subject to review only as the circuit judge’s order could be reviewed. Expressio unius est exclusio alterius applies.

This court has often ruled that proceedings in habeas corpus before a circuit judge or chancellor at chambers is judicial, and subject to review by the Supreme Court on certiorari issued by this court, to bring up the record of such proceedings. Ex parte Jackson, 45 Ark. 158; State v. Neal, 48 Ark. 283; State ex rel. v. Williams, 97 Ark. 243, and cases there cited.

It is said in the majority opinion that the obvious purpose of § 27, art. 7, of the Constitution, conferring power on county judges to issue orders for injunctions and other provisional writs, in the absence of circuit judges, subject to review in vacation by circuit judges, “was to authorize superior judges to review in vacation the orders of county judges granting injunctions or other provisional writs, so that such orders should not necessarily remain in force until the superior court should convene to review them in term time; but that there is no such authority, under the above constitutional provision, for reviewing habeas corpus proceedings before a county judge in the absence of a circuit judge, except by the circuit court. In other words, it is argued that habeas corpus proceedings before a county judge, in the absence of the circuit judge from the county, cannot be reviewed by the Supreme Court, nor even by a circuit judge or chancellor in vacation, but can only be reviewed by the circuit court. Such a construction gives these injunctions, and the other provisional writs which have reference merely to the protection of property rights, a greater importance and higher dignity, under our judicial system, than the writ of habeas corpus, which protects and preserves the freedom of the person — the personal liberty of the ixidividual. It is unbelievable that the framers of our Constitution would have provided a method for reviewing the vacation orders of county judges granting injunctions or other provisional writs for the protection of property rights, in order that the same might not remain in force and the rights of property delayed until the superior court could review them in term time, and yet not have made some provision for the review of the orders of county judges in habeas corpus proceedings in order that the sacred rights of personal liberty might not be delayed until a superior court should convene to review them. In the minds of the framers, of our Constitution, personal freedom — the liberty of the person — • was of far greater importance than all other personal or property rights. Next to life itself, the right of personal liberty is sacrosanct; and the framers of the Constitution, instead of making the writ of habeas corpus, which is intended to preserve and protect the liberty of the person, subordinate and inferior to injunctions and other provisional writs designed to protect mere propety rights, have exalted it to a preeminent place, as we have seen, in our judicial system. In view of its ancient origin, its glorious history, and its sacred purpose to’ preserve the personal liberty of individuals against illegal imprisonment, the framers of our Constitution intended, in art., 7, § 37, supra, that orders of the county judge, in the absence of the circuit judge from the county, in habeas corpus proceedings, should be reviewed by this court in the same manner as such proceedings by the circuit judg’e or chancellor in vacation are reviewed. The framers of the Constitution conferred upon county judges the power, in the absence of circuit judges from the county, to issue, hear, and determine writs of habeas corpus, under such regulations and restrictions as shall • be provided by law. The framers of our habeas corpus act in conformity with both the spirit and letter of the Constitution, provided that “the county judge shall have power coextensive with his county, in the absence of the circuit judge therefrom, to issue, hear, and determine writs of habeas corpus, on proper application of parties entitled thereto, in all cases and with like powers in which the circuit judge may issue and determine such writs.” Section 5084, C. & M. Digest. Writs of habeas corpus may be issued by a circuit judge in vacation, and his order may be reviewed by this court. Likewise, writs of habeas corpus may be issued by county judges, in the absence of circuit judges from the county, with like powers in which the circuit judge may issue and determine such writs, and the orders of the county judges in such cases are also reviewable by this court. Were it otherwise, it would be entirety possible to illegally imprison an individual, who was justly entitled to his liberty, for many days, and even months, awaiting a term of the circuit court, before the orders of the county judge refusing* to allow him bail could be reviewed.

To illustrate: In most of the circuit courts of the State there is a period of at least six months between the terms of court. Section 2207, C. & M. Digest. The circuit judge, during vacation, is usually not present in any of the counties in the circuit except that one in which be resides. If one who is illegally imprisoned should apply to a county judge for writ of habeas corpus, and the comity judge, after li earing the writ, should make an order refusing to discharge him or to grant him bail, then the prisoner, under the construction which the majority has given the Constitution and habeas corpus act, would have to remain in prison until the circuit court convened before the order of the county judge could be reviewed. In such ease the unfortunate victim of the erroneous order of the county judge would be unlawfully deprived of liis liberty during all this time. If the county judge remanded him, and he should thereafter apply for a second writ to a circuit judge or chancellor, and it appeared that he had been once remanded for an offense not bailable, he would have to' be again remanded without further proceedings. Section 5083, C. & M. Digest. In the language of Judge Eakin, speaking for the court in Ex parte Jackson, 45 Ark. 158, at page 161: “It would be a disgrace to any government if the decision of such matters were left to the arbitrary will of one man, without appeal or means of correction.”

With all due deference, it occurs to me that it is a deplorable misapprehension of our Constitution and habeas corpus act to so construe them as to make possible such results as I have indicated. I feel sure that such was not the intention of our lawmakers in framing our Constitution and habeas corpus act. There is certainly nothing in the language of either to justify such construction. Such an interpretation, instead of preserving the harmony of our judicial system, absolutely destroys it and thwarts the will, both of the framers of the Constitution and habeas corpus act, which were intended by them to embody in enduring form the sacred privileges of the writ of habeas corpus, and the procedure under it, which obtained in England hundreds of years before our forefathers transplanted them into the organic law of this great republic under the all-embracing provision, “The privilege of the writ of habeas corpus shall not be suspended unless when, in cases of rebellion or invasion, the public safety'- may require it.”

In reaching my conclusion I have not overlooked those decisions of our court to the effect that the Supreme Court has no power to supervise and control the action of courts inferior to the circuit court except by reaching back through the decisions of that court. I am well aware of the decisions of our court to the effect that, "under our judicial system, appeals from all tribunals inferior to the circuit courts go to the circuit courts, and from the circuit courts to this court;” and that "this court has no original jurisdiction to control or supervise vany proceedings of courts inferior to the circuit courts, except through the circuit courts. ’ ’ See Featherstone v. Folbre, 75 Ark. 510; Jones v. Coffin, 96 Ark. 332-336. It was my lot to express the opinion of the court in those cases. The court did not have under consideration article 7, §■ 37, :of the Constitution and our habeas corpus act, supra, and I did not consciously express anything in those oases that has the remotest connection, even by analogy, to the question now under consideration. Those cases are cited as authority for the argument made in the opinion of the majority to the effect that the county judge, in the absence of the circuit judge from the county, in issuing, hearing and determining habeas corpus proceedings under the Constitution and habeas corpus act, is an inferior court to the circuit judge or circuit court, and hence the decision of 'the county judge in such proceedings can only be reviewed by the circuit court. This argument begs the question, is based upon a false premise, and is wholly unsound. It assumes, that the jurisdiction conferred upon the county judge-under the Constitution and habeas corpus act is but the exercise of similar or equal jurisdiction as that of the county court, that the county judge, in habeas corpus proceedings, is as the county court. Such is not the case at all, as I have shown. The county court has no jurisdiction in habeas corpus proceedings. The framers of the Constitution could have vested this same judicial power in some other officer or tribunal than the county judge, and, if they had done so, could it be said that the jurisdiction thus conferred was inferior to the jurisdiction conferred upon the circuit judge in habeas corpus proceedings'? Certainly not. The jurisdiction conferred upon the county judge, under the above provision of the Constitution, is concurrent and equal in dignity to the jurisdiction of the circuit judge. In exercising this jurisdiction he is not the county court at all, but the specially designated tribunal to meet the exigencies of the situation caused by the absence of the circuit judge from the county and to prevent the delay that might be incident to waiting his return or in applying to other tribunals having power to issue the writ. If I am correct in my conclusion that the jurisdiction of the county judge under the Constitution and habeas corpus act is not inferior to, but the same ás, that of the circuit judge, and that it was the intention to substitute him for the circuit judge ' in the absence of the latter from the county, then it is obvious that the doctrine of Featherstone v. Folbre and Jones v. Coffin have not the slightest application to the question. Certainly nothing that was said in the opinions in those cases conflicts with the views I am now expressing.

I am also aware of the decision of this court in Carr v. State, 93 Ark. 585. In that case Carr was accused of, arrested, and imprisoned for murder in the first deg*ree. He applied to Judge Lea, during vacation, for bail, which was refused. He then applied to me during vacation of the Supreme Court, for certiorari to bring up the record before the circuit judge, and a writ’of habeas corpus to admit him to bail until the Supreme Court, in term time, could review the action of the circuit judge denying him bail. Acting under what I conceived to be the power of the judges of the Supreme Court under art. 7, § 4, supra, I issued the writ of habeas corpus, and, on reviewing the record of the proceedings before Judge Lea, I was of the opinion that the prisoner was clearly entitled to bail, making my decision in the premises returnable to the Supreme Court for its review. The court held that I, as an associate justice, had no jurisdiction in the premises, and that my action in admitting the prisoner to temporary bail until the decision of the Supreme Court could, be had was of no authority or effect. I dissented in that case, and have always regretted that I did not write out my dissent. I am still dissenting. For it is my firm conviction that article 7, § 4, of the Constitution, conferring upon the judges of this court power to issue writs of habeas corpus in aid of the appellate and supervisory jurisdiction of the Supreme Court, was intended to cover just such cases as that presented to me as associate justice in the Carr case. It is well known that at that time the vacations of the Supreme Court .lasted for a period of three months, and if-an associate justice did not have the power to issue the yvrit pf habeas corpus in aid of the appellate jurisdiction of the Supreme Court, and to admit to bail the prisoner until the order, of the circuit judge in vacation could be reviewed by the . highest court, then Carr, who, in my opinion, was justly entitled to bail (and who was afterwards either acquitted or convicted of only a lower grade of homicide than murder in the first degree), would have been compelled to remain in unlawful imprisonment until the vacation of the Supreme -Court was over. If a judge of this court could not, in vacation, issue a writ of habeas corpus and admit to bail a prisoner who was entitled thereto, under the above -circumstances, then the provision of art. 7, § 4, of the Constitution is rendered absolutely nugatory. The writ of habeas.corpus is a writ whose, only function is to inquire into the illegal imprisonment of a person, ■and if a judge of this court, could not issue such a writ, under the above circumstances, then it could never be issued at all, for he has no original jurisdiction to issue it, and the -constitutional provision would thus be wholly without effect.

By statute, § 1432, C. & M. Digest, the common law of England, so far as the same is applicable and of a general nature, not local to that Kingdom and not inconsistent with the Constitution and the laws of this State, shall be the rule of decision in this State. By act of Parliament, as we have seen, Magna Charta was to be allowed as the common law. Mr. Hurd, in his excellent work on Habeas Corpus, pages 102 and 103, tells us that, about the year 1757, a bill was pending in the House of Lords to extend the power of granting writs of habeas corpus to all judges of His Majesty’s courts in vacation time, in all cases not within the statute of the 31st of Chas. II. Lord Mansfield, he says, “spoke two and a half hours on the bill, and said, among other things, that ‘the writ of habeas corpus at common law was a sufficient remedy against all those abuses the bill was supposed to . rectify.’ ” A majority of judges of England, during the pendency of the bill, declared in favor of the exercise of the powers, regardless of the passage of the bill. The judges of the King’s Bench, after the passage of the habeas corpus act, were accustomed to issue the writ, during the vacation, in all cases whatsoever. Lord Denman, Chief Justice of the Queen’s Bench, in Watson’s Case, 36 Com. L. Rep. at p. 261, shows that at that time the practice had prevailed for the judges to issue the writs in vacation for at least one hundred and sixty years.

We have the common law; we have Magna Charta; we have the Constitution of the Hnited States; we have our own Constitution and our habeas corpus act — all recognizing and guaranteeing the privileges of the writ of habeas corpus to preserve and protect the liberty of the person against illegal imprisonment, with all the liberal procedure thereunder. With all these safeguards, as practiced in Great Britain for centuries, “to procure and complete to every individual that sense of independence which is the noblest advantage attending personal liberty,” it is indeed unfortunate that our court should have so construed our Constitution and habeas corpus act as to make it possible for one to be unlawfully restrained of his liberty for a longer period than is absolutely required to make proper application to some judg'd or tribunal given, under our Constitution and laws, the jurisdiction to issue, hear and determine writs of habeas corpus.

My conclusion of the whole matter is that, under our Constitution and habeas corpus act, any one unlawfully deprived of his personal liberty may apply to the circuit judge or chancellor in vacation, and, in the absence of the circuit judge from the county, to the county judge, before indictment; and if any of these judges deny him the liberty to which he believes himself entitled, he may appeal directly from their decision to the Supreme Court, and, if the Supreme Court is in vacation, he may apply to one or more of its judges for certiorari and habeas corpus in aid of the appellate jurisdiction of the Supreme Court, to be granted bail, if entitled thereto, until the Supreme Court can review the ruling of the judge refusing' him bail. Such was the doctrine intended to be announced in. State ex rel. Attorney General v. Williams, supra, where we said: “This court has jurisdiction to review the proceedings of inferior courts and of judges and chancellors at chambers, upon application for writs of habeas corpus, and to review, revise and correct the action of the inferior court or judge. * * * Where there is no subordinate court competent to issue the writ, the Supreme Court will award it, as held in Ex parte Robins, supra. Thus it will be seen our law guard's carefully the rights of the accused throughout, and provides an orderly administration of justice; the chancellors and judges named in the habeas corpus act to issue writs and grant bail in accordance with its terms, except after indictment for capital offenses not expressly made bailable ; after such indictment the circuit court wherein the same is pending, or the judge thereof in vacation, to grant bail 'without interference from any other court or judge, with the Supreme Court over all to review, revise and correct the action of the lower-court or judge, and grant relief itself where, because of unavoidable accident or casualty, no inferior court is competent to do so.” See also State ex rel. v. Neal, supra.

If the Constitution and habeas corpus act be so construed, it makes a perfect system, complete and harmonious in every detail,' relating to habeas corpus, which is not in conflict with any other part of onr judicial system. But the construction of the majority leaves a break in our judicial system and harks back, it seems to me, to those dark and cruel days when, by the word of the despot and the decree of the Star Chamber, men were thrown in jail and allowed to linger for months, and even years, because the King’s judges suspended the sacred privileges of the writ of habeas corpus. 2 Hallam’s Constitutional History, p. 39 et seq. 44; 3 Hallam’s, p. 18; 3 Blk. Comm., star p. 136.

Mr. Justice Humphreys authorizes me to say that he concurs fully in the above opinion.

       There needed but this one court in any government to put a-n end to all regular, legal, and exact plans of liberty, for who durst set himself in opposition to the crown and ministry, or aspire to the character of being a patron of freedom, while exposed to so arbitrary a jurisdiction. 2 Hume, 119.