text:
    Polk County v. Mena Star Company.
    Opinion delivered October 17, 1927.
    1. Constitutional- law — effect of amendment. — A constitutional amendment being the last expression of the popular will, constitutional provisions which are necessarily repugnant must yield, and all others remain in 'force.
    2. Counties — allowances in excess of revenue. — Amendment 11 to the Constitution, prohibiting counties from making contracts or allowances in any year in excess of revenue from all sources for that year, held not intended to obstruct the necessary and orderly administration of county affairs imposed by other provisions of the Constitution and by the laws of the State, such as. a holding of elections, printing ballots, feeding of prisoners, the holding courts of record, and the fees of officers.
    3. Counties — matters within the discretion of the county court. — Under Crawford & Moses’ Dig., § 1982, providing for appropriations to defray county expenses, items including expenses of courts and criminal proceedings, of keeping accused persons in jail, of collecting taxes, and the public records, are not within the discretion of the county court, but items to- defray the expenses of keeping paupers, of building and repairing public roads and bridges, and taking care of public property and other expenses of the county government are within the discretional the county courts.
    4. Counties — claims allowable. — Under Const. Amendment 11, prohibiting the county court or levying 'board of the county from making contracts or allowances for any purpose whatsoever in excess of the revenue from all sources -for that year, the levying board may appropriate the total revenue and the county, court may make contracts and allow claims for all the revenue of any fiscal year, regardless of other indebtedness existing at the time of the adoption of the amendment, and regardless of other indebtedness- incurred subsequent thereto, provided same was not in excess of the revenue for the year in which' it was incurred.
    5. Counties — allowances payable from subsequent revenue.— Where contracts and allowances made :by the county court for a particular year did not absorb all the revenue for that year, but the county was unable to pay out of the revenue for such year all allowances incurred during such year, because of indebtedness brought over from a prior year, claims for printing expense incurred in an election and for feeding of prisoners in jail were valid, and not in violation of Amendment 11, prohibiting the allowances in any year exceeding the revenue from all sources for that year, and such expenses may be paid out of the revenue of a -subsequent year.

      6. Counties — duty of levying courts. — The quorum or levying courts should strictly follow the provisions of .Crawford & Moses’ Dig., § 1982, specifying the order of appropriation, but cannot exceed the amount of revenue for the fiscal year.
    7. Counties — contracts in excess of revenue. — Contracts made or warrants issued by a county in any year in excess of the revenue for that year are void, under Amendment 11.
    Appeal from Polk Circuit Court; B. E. Isbell, Judge;
    affirmed.

      Mark P. Olney, for appellant.

      Minor Pipkin, for appellee.

      EL. W. Applegate, Attorney General, amicus curiae.

   McHaney, J.

'This appeal involves another construction of Amendment No. 11 to thé Constitution of this State. Appellee, Mena Star Company, is a printing-establishment in the city of Mena, Polk County, Arkansas, and in the year 1926, by order of the county board of election commissioners of said county, printed election supplies for the general State election in October and the congressional election in November, consisting of ballots, poll-books, tally sheets, etc., the bill for which amounted to $114.50. The appellee, G. F. Bickle, is the sheriff of said county and, as such officer, had charge of the prisoners charged with crime in said county who were confined in the county jail, and incurred charges against the county in the lawful sum of $19 for feeding’ them. Both appellees presented their claims to the county court, which were disallowed, and they thereupon, within apt time, appealed to the circuit court. The cause was submitted to the circuit court upon these claims and an agreed statement of facts, which is as follows:

“It is agreed that, at the end of the fiscal year 1924, Polk County was indebted in a large amount upon outstanding- county warrants, which were legal obligations of said county, and that bonds have never been issued to liquidate said indebtedness.
“That, for the year 19.25, the revenues accruing to said county for said year exceeded the allowance by the county court of said county of claims accruing during said year, but that, during said year, a large amount of the warrants which were outstanding at the close of the fiscal year 1924 were presented to and paid by the county treasurer of said county out of the revenues of said year 1925, and that, by reason of said payments, the revenues for said year were not sufficient to pay all warrants issued upon allowances for said year 1925.
“That, for the year 1926, the revenues accruing to said county for said year amounted to the total sum of $33,054.72, and that allowances by the county court for said year of claims against said county amounted to the sum of $19,717.53, and that additional obligations of said county were contracted during said year to the amount of $8,453.4$, but that such claims as were presented therefor were not allowed, for the reason that, at the time of their presentation, the funds of the county had been exhausted by reason of the fact that there had previously been presented to and paid by the county treasurer of said county the sum of $14,399.61 of warrants of the 19'25 issue; that the total revenues of said county for the year 1926 exceeded the total amount of the legal obligations of said county which accrued during said year in the sum of $4,883.74, and that the claims of the claimants herein were among the obligations of said county which accrued during said year.
“That the claims of the claimants herein were not presented to the court for allowance until April 15,1927, and that, at the time of their presentation, there were, and still are, sufficient revenues of said county of the year 1927 to pay said claims as well as all other legal obligations which were incurred by said county during the year 1926, in addition to the claims that have been presented for allowance during’ the year 1927, the said obligations for the year 1926 unpaid amounting to the total sum of $8,453.48 as aforesaid. ■
“That the claim of the claimant, the Mena Star Company, is for printing the ballots, poll-books and other election supplies ordered from claimant by the election commissioners of said county and used by them in the conduct of the general elections held in said county during said year 1926, and were used for said purpose; that the amount of said claim is correct, and that said claim has not been paid, and that the amount thereof is $114.50.
“That the claim of the claimant, Gr. F. Bickle, is for services rendered by him during the year 1926 as sheriff of said county for keeping and feeding prisoners confined in the jail of ¡said county, which, under the law, he was required to keep and feed, and that said claim is correct in amount, and has not been paid, and that the amount thereof is $19.
“That said claims were duly and in due form of law presented to the county court of said county for allowance and were by the court disallowed, from which orders of disallowance said claimants have duly prosecuted their appeals to the circuit court of said county.”

Thereupon the circuit court rendered judgment allowing both claims, made an order directing the county clerk to draw his war rapt on the treasurer in payment thereof, and directed the certification of its judgment to the county court, to be spread upon its records. An appeal was prayed and granted, so the case is here for our determination.

As heretofore stated, it becomes necessary again to construe Amendment No. 11, the pertinent parts of .which are as follows:

“The fiscal affairs of counties, cities and incorporated towns shall be conducted on a sound financial basis, and no county court or levying board or agent of any county shall make or authorize any .contract or make any allowance for any purpose whatsoever in excess of the revenue from all sources for the fiscal year in which said contract or allowance is made; nor shall any county judge, county clerk, or any other county officer, sign or issue any scrip, warrant or make any allowance in excess of the revenue from all sources for the current fiscal year; nor shall any city council, board of aldermen, board of public affairs, or commissioners of any city of the first or second class, or any incorporated town, enter into any contract or make any allowance for any purpose Avhatsoever, or authorize the issuance of any contract or Avarrants, scrip or other evidence of indebtedness, in excess of the revenue for such city or town for the current fiscal year; nor shall any mayor, city clerk, or recorder, or any other officer or officers, however designated, of any city of the first or second class, or incorporated town, sign or issue any scrip, warrant or other certificate of indebtedness, in excess of the revenue from all sources for the current fiscal year. ' Provided, however, to secure funds to pay indebtedness outstanding at the time of the adoption of this amendment, counties, cities and incorporated towns may issue interest-bearing certificates of indebtedness or bonds with interest coupons for the payment of which a county or city tax, in additiozz to that ziow authorized, not exceeding three mills, may be levied for the time as provided by law until such izzdebtedness is paid.”

This court has already had this amezzdmezit under consideration in the same or differezit phases in the following cases: Brickhouse v. Hill, 167 Ark. 513, 268 S. W. 865, where the amendment was held adopted; Kirk v. High, 169 Ark. 152, 273 S. W. 289; Matheny v. Independence Co., 169 Ark. 925, 277 S. W. 22; Babb v. El Dorado, 170 Ark. 10, 278 S. W. 649; Jewett v. Norris, 170 Ark. 71, 278 S. W. 652; Nelson v. Walker, 170 Ark. 172, 279 S. W. 11; Airheart v. Winfree, 170 Ark. 1126, 282 S. W. 963; Martin v. State ex rel. Saline Co., 171 Ark. 576, 286 S. W. 873; McGregor v. Miller, 173 Ark. 459, 293 S. W. 30; Independence Co. v. Lester, 173 Ark. 796, 293 S. W. 743; Dixie Culvert Mfg. Co. v. Perry Co., 174 Ark. 107, 294 S. W. 381; Ivy v. Edwards, 174 Ark. 1167, 298 S. W. 1006. It will therefore be readily seezi that this court has beezz called upozi to answer differezit questiozzs arisizig under, because of, or out of this amendment a goodly number of times since it was declared adopted in Brickhouse v. Hill, supra, decided February 16, 1925.

Before proceeding to a discussiozi of the issues izivolved in tliis case, it may be -well to bear in mind a few of the fundamental rules of construction relating to constitution fil amendments, izi cozzneotiozz with the original Constitution, and also the language of § 2 of this Amendment, -which specifically provides that it shall repeal only such provisions of the Constitution as are in conflict with the provisions of this Amendment. In Kirk v. High, supra, this court said:

‘ ‘ The rule by which amendments to the Constitution are to be construed was stated in the case of Hodges v. Dawdy, 104 Ark. 583, 149 S. W. 656, where it was said: ‘The amendment being the last expression of the popular will in shaping the organic law of the State, all provisions of the Constitution which are necessarily repugnant thereto must, of course, yield, and all others remain in force. It is simply fitted into the existing Constitution, the same as any other amendment, displacing only such provisions as are found to be inconsistent with it. Like any.other new enactment, it is a “fresh drop added to the yielding mass of the prior law, to be mingled by interpretation with it.” State v. Sewell, 45 Ark. 387. In the construction of its terms, and in the determination of its scope and effect, the courts should follow settled rules of interpretation.’ ”

Therefore this amendment simply took its place in the Constitution of this State as already written, as a part thereof, neither more nor less than any other section, clause or part thereof. It was simply a “fresh drop added to the yielding mass of the prior law, to be mingled by interpretation with it”. (State v. Sewell, 45 Ark. 387) and was devised by its framers and adopted by the people with two purposes in view: (1) to prevent them from incurring any indebtedness in any fiscal year in excess of the revenue from all sources for such year; and, (2) to provide a way to pay indebtedness existing at the time of the adoption of the Amendment. So, as was said again in Kirk v. High, supra, “No interpretation of the Amendment under consideration in this case should be allowed which would conflict with any other provision of the Constitution, unless it is absolutely necessary in order to give effect to the Amendment. On the other hand, such construction should be given as will, if possible, leave all the other provisions of the Constitution unimpaired and in full force.” State v. Donaghey, 106 Ark. 56, 152 S. W. 746.

The court in the same case quoted from People v. Potter, 47 N. Y. 375, as follows:

“The intent of the lawmaker is to be sought for. When it is discovered, it is to prevail over the literal meaning of the words of any part of the law. And this intent is to be discovered, not alone by considering the words of any part, but by ascertaining the general purpose of the whole, and by considering the evil which existed calling for the new enactment, and the remedy which is sought to be applied. And when the intent of the whole is discovered, no part is to be so construed as that the general purpose shall be thwarted, but all is to be made to conform to reason and good discretion. And the same rules appty to the construction of a Constitution as to that of a statute law. ’ ’

Again, in the same case, the following was cited and approved from State v. Scott, 9 Ark. 270 :

“In determining the intentions of the framers of the Amendment we must keep in view the Constitution as it stood at the time the Amendment was made, the evil to be remedied by the Amendment, and the Amendment proposed by which the evil is to be remedied. No interpretation should be allowed which would conflict with any other provision of the Constitution, or which is not absolutely necessary in order to give effect to the proposed Amendment. On the contrary, such construction should be given as will, if possible, leave all the other provisions in the Constitution unimpaired and in full force.”

Bearing these well established and universal rules in mind, we are of the opinion that it was not the purpose of the framers of this Amendment or the intention of the people in adopting it to obstruct the necessary and orderly administration of the affairs of the counties, such as are imposed upon them by the other provisions of the Constitution and laws of this State. The holding of elections, printing ballots, poll-books, tally sheets and other election supplies; the feeding of prisoners confined in the county jail; the holding of courts of record and fees of justices of the peace; the salaries and fees of county officers, including the prosecuting attorneys; the making of assessments and taxbooks, and collecting-taxes, are all necessary county expenses imposed by law, over which the county court has no control or discretion, except possibly the amount to be allowed for the service rendered* as all compensation is either fixed by law or is provided for.

The sixth subdivision of § 1982, C. & M. Digest, reads as follows:

“The court shall then proceed to the making of appropriations for the expenses of the county or district for the current year, including as such expenses any items for blank printed forms used by any of the several county officers, to-wit: Sheriff, clerk, coroner, collector, assessor or treasurer of said county or district, and also for fuel, lights and stationery used by such officers in their respective offices, and for official purposes; and said appropriations shall be made in the following order:
“ (1). To defray the lawful expenses of the several courts of record of the county or district and the lawful expenses of criminal proceedings in magistrate’s courts, stating the expenses of each of said courts separately. (2). To defray the expenses of keeping persons accused or convicted of crime in the county jail. (3). To defray the expenses of making the assessments and taxbooks and collecting taxes on real and personal property. (4). To defray the lawful expense of public records. of the county or district. (5). To defray the expense of keeping paupers of the county or district. (6). To defray the expense of building and repairing-public roads and bridges' and repairing and taking care of public property. (7). To defray such other expenses of county government as are allowed by the laws of this State. ’ ’
In the case of Worthen v. Roots, 34 Ark. 356, construing the foregoing section with reference to items 1 to 7, this court said:
“The nature and reason of this distinction, and, indeed, the full scope of the operation of the Constitution itself, will become apparent from a consideration of the various purposes for which the tax is to be levied. Reverting to them, it will be seen that the first four are of an indispensable nature, essential to the support of the Government. They are for services that must be performed, or the business of the counties must stop. The last three are not supposed to be imposed by necessity, but are matters of contract.”

It will therefore be seen that this court, many years ago, determined and held that there were two classes of obligations dealt with in this section of the statutes; first, those that are imposed on the counties by law and about which the county court is substantially without any discretion; and, second, those that relate to matters of contract regarding the internal affairs of the county, or internal improvement thereof, over which the county court has discretionary power — items 1 to 4 inclusive being in the first class, and items 5, 6 and 7 being in the second class.

Bearing this section of the statutes in mind, let us analyze that part of § 1 of Amendment No. 11 now under consideration. The first clause thereof reads: “The fiscal affairs of counties, cities and incorporated towns shall be conducted on a sound financial basis, and no county court or levying board or agent of any county shall make or authorize any contract or make any allowance for any purpose whatsoever in excess of the revenue from all sources for the fiscal year in which said contract or allowance is made; nor shall any county judge, county clerk, or any other county officer, sign or issue any scrip, warrant, or make any allowance in excess of the revenue from all sources for the current fiscal year.” The remainder of that paiag'raph has reference to cities and towns. It will be seen that the prohibition therein is against the making of contracts or allowances in any year in excess of the revenue from all sources for that year. In other words, the levying court may appropriate the total revenue and the county court may make contracts and allow claims for all the revenue of any fiscal year, regardless of indebtedness existing at the time of the adoption of this Amendment, December 7, 1924, and regardless of other -indebtedness incurred subsequent to December 7, 1924, provided same was not in excess of the revenue for the year in which it was incurred. According to the agreed statement of facts, contracts and allowances made by the county court for the year 1925 did not absorb all the revenue for that year, but that the payment of warrants outstanding at the time of the ¡adoption of this Amendment made it impossible to redeem all claims contracted and allowed during such year. . The same thing is true for the year 1926. This was not in violation of the Constitution, for the reason that the contracts and allowances for- those fiscal years did not exceed the revenues for such years, but in fact were much less, thereby enabling the county to reduce its indebtedness without exercising the bond-issuing provisions of this 'amendment. The revenue for Polk County for 1926 was $33,054.72. The county court allowed claims for said year in the sum of $19,717.53 and contracted other obligations amounting to $8,453.48, or a total of $28,171.01, or nearly $5,000 less than the revenue, but, by reason of a large indebtedness brought over from 1924, incurred prior to December 7, a large part of which had 'been paid in 1925 and ’26, the county was unable to pay out of the revenue of 1926. all the allowances and contract obligations incurred in that year. Under this state of facts, we hold that they may be paid out of revenues for 1927, or subsequent revenues, and that they are valid claims against the county in so far as they may be affected by Amendment No. 11. -

Quorum or levying- courts should follow the provisions of the sixth subdivision of § 1982 of C. & M. Digest ' strictly in making appropriations. They should first make ample provision for those necessary expenses imposed on the counties by law, including outstanding warrants payable in that year, as, for instance, an installment due for construction of a courthouse; and, after having done this, they are at liberty to make appropriations of part or the whole of the remainder of the revenue for the purposes provided by items 5, 6 and 7, but they cannot exceed the amount of the revenue for the fiscal year. If contracts are made or warrants issued in any year in excess of the revenue for that year, they are void. Dixie Culvert Mfg. Co. v. Perry Co., supra.

It follows from the foregoing that the judgment of the circuit court is correct, and must be affirmed. It is so ordered.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Jacobs v. Parham.
    Opinion delivered October 17, 1927.
    1. Officers — removal for acts done prior to term of office.— Under Crawford & Moses’ Dig., § § 10335, 10336, a public officer is not subject to removal from office because of acts done prior to ibis present term of office in view of .Const., art. 7, § 27, containing- no provision against re-election of officer removed for any of the reasons named therein.
    2. Statutes — construction of penal statutes. — Penal statutes are to be strictly construed.
    Certiorari to Desha Circuit Court; T. G. Parham, Judge;
    judgment quashed.

      R. W. Wilson land TJtley & Hammock, for appellant.

      Eric M. Ross, for appellee.
   Per Curiam.

T. R. Jacobs seeks by certiorari to review the proceeding in the circuit court of Desha County whereby he was suspended from the office of county judge of said county upon the filing of several indictments against him, charging him with misfeasance and malfeasance in office.

The body of the order of suspension reads as follows:

“Now on the 23rd day of August, 1927, there were filed in this court certain indictments returned by the' grand jury of Desha County, charging the said T. R. Jacobs with the crimes of making excessive allowances against said county after the revenues of said county had become exhausted, a malfeasance in office, and charging also two offenses constituting- misfeasance in office; and it appearing to the court that the said T. R. Jacobs is now the duly elected, qualified and acting county and probate judge within and for said county. It is therefore considered, ordered and adjudged by the court that the said T. E. Jacobs be and he is hereby suspended from said office of county and probate judge of Desha County, and enjoined and prohibited from performing any of the acts and duties incumbent on him as such county and probate judge, pending the trial of such charges.”

Certified copies of the indictments were ¡also filed by Jacobs with his petition, and are a part of the record in the proceeding. They show on their face that Jacobs was indicted for misdemeanors, and that the charges relate to matters which are alleged to have occurred during a. former term of T. E. Jacobs, as county judge of Desha County, Arkansas. The order of suspension was made under § 10335 of Crawford & Moses’ Digest, which reads as follows:

“Whenever any presentment or indictment shall be filed in any circuit court of this State against any county or township officer, for incompetency, corruption, gross immorality, criminal conduct amounting to ¡a felony, malfeasance, misfeasance or nonfeasance in office, such circuit court shall immediately order that such officer be suspended from his office until such presentment or indictment shall be tried. Provided, such suspension shall not extend beyond the next term after the same shall be filed in such circuit court, unless the cause is continued on the application of the defendant. ’ ’

Section 10336 provides that, upon the conviction of any such officer for any such offense, a part of the sentence of the circuit court having jurisdiction shall be to remove such officer from office.

We have no decision of our own court construing the precise question raised by this proceeding. Other states, however, have similar statutes, and there is a decided conflict in the cases as to whether such statutes provide for the removal of public officers for misconduct during a previous term. The conflicting decisions are annotated in a case-note to 17 A. L. E., beginning at page 279. The annotator says that the cases, numerically considered, are nearly evenly divided. Those favoring the construction that an officer may be removed for offenses committed during ia previous term say that this holding best carries out the object and purpose of such statutes. It is pointed out that the object of such statutes is to rid the community of a corrupt, incapable or unworthy official. It is also pointed out that his acts during his previous term quite as effectually stamp him as such an officer as those of that term he may be serving. It is said that reelection does not condone the offense, because his misconduct during some previous term may not have been discovered prior to the election. It is said that the commission of any of the prohibited acts during a previous term equally stamps him as an improper person to be intrusted with the duties of a particular office as those committed during the present term of such office.

On the other hand, it is said that the courts should never remove a public officer for nets done prior to his present term of office. It is pointed out that to hold otherwise would be to deprive the people of their right to elect their officers. It is said that, when the people have elected a man to office, it must be assumed that they do this with knowledge of his life and character, and that they disregarded or forgave his faults of misconduct, if he had been guilty of any. Otherwise, it has been said, the courts would be enabled, by reason of' faults or misconduct of an officer during a former term, to practically overrule the will of the people. Hence it is said that it was the intention of the lawmakers in framing such statutes that the inquiry should be limited to acts done during the existing term of office.

We are of the opinion that the latter view is most in accordance with the provisions of our own Constitution and with the language of the statute in question. Such statutes are penal in their nature, and, under familiar rules of construction, are to be strictly construéd as to their effect. /

Article 7, § 27, of our Constitution provides that the circuit court shall have jurisdiction, upon indietmént, to remove any county or township officer from office for incompetence, corruptness, gross immorality, illegal conduct, malfeasance, misfeasance or nonfeasance in office. There is no prohibition in this section or in other parts of the Constitution from reelecting such officer. His removal operates by way of punishment, and the evident purpose of the section is to rid the people of officers who are guilty during their term of office of the matters enumerated in the section of the Constitution just referred to. It was .deemed best for the public interest that an officer guilty of any of the offenses set out in the section during his term of office should not continue to .serve the people after he was convicted of such an offense. The statute under consideration provides for a temporary suspension of the officer during- the time an indictment is pending against him, and, we think, means that the indictment must be for acts committed during his existing term of office. Under our Constitution and laws, each term of office is an entity, separate and distinct from all other terms of the same office.

We are of the opinion that the better view is that the .specific object of the Legislature in passing the statute in question was to suspend the officer, if indicted for misconduct during his existing term of office, and, as a part of his punishment, to remove him if convicted of that offense. The purpose of the statute was not to punish the officer for wrongdoing outside of his present term, but to punish him for wrongdoing during his existing term. In other words, the object of the statute was to protect the people from unworthy officers while they were serving as such officers. By this construction, past conduct could always be disregarded or past offenses condoned, and^ existing offenses could be punished, and officers indicted for present wrongdoing can be suspended from office during- the pendency of such indictment.

The result of our views is that the judgment of the circuit court suspending Jacobs from the office of county judge should be quashed. It is so ordered.


author: Hart, C. J. Hart, C. J.

text:
    Lake v. Tatum. Harrell v. Tatum.
    Opinion delivered October 24, 1927.
    1. Counties — civil divisions of state. — Under the Constitution, counties are civil divisions of the State for political and judicial purposes, and are its auxiliaries and instrumentalities in the administration of its government.
    2. Counties — limit of debt. — Under Amendment 11 to the Constitution, the limitation placed upon the counties and the agents thereof in fiscal affairs is that the counties must live within their annual income, derived from the maximum constitutional tax levy, so that the limit of the amount for which a county may contract in any one year is the difference between the necessary governmental expenses, or fixed charges in running its government, and the total revenue which can be derived from levying and collecting county taxes in such year.
    3. Counties — power to contract for courthouse. — Where the county court in good faith finds upon investigation of the fiscal affairs of the county that there will be a margin left, if it be spread over a series of years, sufficient to meet the annual payments for the construction of a courthouse, such a contract for the construction of a courthouse will be a valid and enforceable contract, and the annual payments will be considered as appropriated to the construction of the courthouse.
    4. Counties — warrants for erection of courthouse. — Under Crawford & Moses’ Dig., §§ 1986, 1987, 1989, warrants issued for the 'building of a county courthouse should state on their face the purpose for which they are issued.
    5. Counties — effect of appropriation for courthouse. — 'The contract for the erection of a courthouse sets apart a certain amount of the general revenue for such purpose, and the amount so segregated must be used for the courthouse construction, and an attempted diversion thereof by the county officers may be stopped by the holders of such warrants.
    6. Counties — burden of proving sufficiency of county revenue. —In a proceeding to construct a courthouse the county court must ascertain from the budget of past years and from estimates of future conditions of the county, that there will be ian annual margin left to meet the annual payments for construction after the necessary government expenses are deducted from the total annual county revenue, and ibhe burden of proving the existence of such margin is upon the county officers sought to be enjoined from proceeding with the construction.

      7. Counties — contract for courthouse — validity.—In proceedings to enjoin the county officers from proceeding with the construction of courthouse, evidence showing that the county had enough funds on hand available to make the first payment on the courthouse, after deducting county government expenses, and that sufficient funds would be left over in each succeeding year to pay the installments due on the courthouse, showed that a contract for the construction of the courthouse was valid and enforceable.
    Appeals from Union 'Chancery Court, Second Division; George M. LeCroy, Chancellor;
    reversed.
    STATEMENT OE EAOTS.
    The complaint in each case was filed by taxpayers of Union County to restrain the defendants from proceeding further in the erection of a courthouse in Union County, Arkansas. The defendants are the county judge of Union County, the commissioners of public buildings and a contractor for the erection of the courthouse.
    The record shows that on the 25th day of May, JL927, the defendant, William Peterson, entered into a written contract with the county* judge of Union County and the commissioners of public buildings thereof to erect a courthouse according to the plans and specifications written in the contract. He was to receive, as. compensation therefor, the sum of $692,500, to be paid by warrants drawn on the county treasurer and payable out of the county general revenue fund. The warrants were made payable as follows: $95,000 payable on demand, $45,000 payable on August 1 each year from the years 1928 to 1940, both inclusive, and the remaining warrant of $12,500 payable on August 1, 1941. The contract provides that the warrants due in each year. shall be. considered as the first allowance due and the first warrants issued by the county court for each of said years within the meaning of Amendment No. 11 to the Constitution of Arkansas, and that it is guaranteed by the county that the annual payments provided for shall not be in excess of the revenues of the county for the years named. It is further provided that the county shall not, in any of the years named, issue warrants which, in connection with the warrants hereby provided for, payable in any year, shall exceed the revenue for that year. The contract further provides that if, because of the issuance and payment of other warrants unlawfully or inadvertently issued in excess of said revenue, there is default in the payment of any warrant issued under this contract, the county shall not issue any additional warrants or incur any further indebtedness until all past due warrants issued hereunder are paid.
    Other facts will be stated under appropriate headings in the opinion.
    In each case the chancery court found the issues in favor of the defendants, and it was decreed that the complaint should be dismissed for want of equity. The cases involve the erection of the same courthouse, and both cases on appeal will be considered and determined together.

      (J. L. Johnson (for Lake), Streett é Streett and Goochvin c& Goodwin (for Harrell) for appellant.

      Mahony, Yocwn <& 8aye, for appellee.
   Hart, C. J.

At the outset it may be stated that, under our Constitution, counties are civil divisions of the State for political and judicial purposes and are its auxiliaries and instrumentalities in the administration of its government. Cole v. White County, 32 Ark. 45, and Pulaski County v. Reeve, 42 Ark. 54.

Amendment No. 11 deals with the rights arid powers of counties with respect to their fiscal affairs. In construing this amendment to the Constitution, this court has uniformly held that the limitation placed upon the counties and the agents thereof is that the counties must live within their annual income derived from a maximum constitutional tax levy. In other words, the limit of the amount for which a county may contract for in any one fiscal year is the difference between the amount of its necessary governmental expenses or fixed charges in running its government and the total county revenue which can be derived from levying arid collecting county taxes in any one year. Therefore the court has said that it was the intention of the people, by organic law, to put the counties of the State, so far as the future is concerned, upon a cash basis. Polk County v. Mena Star Co., ante p. 76.

While we have said that it was the intention of the amendment to make the revenue of each year pay the indebtedness incurred during that year and that the revenue of a subsequent year should not be applied to pay the liability of a past fiscal year, we do recognize that counties still have the power to contract for the building of a courthouse and to spread out the payments over a series of years, under certain restrictions. We have held that the quorum court may make a levy from year to year up to the constitutional limit of taxes for county purposes and that the county court may set apart so much of this levy for the building of a new courthouse as may be spared after meeting other governmental expenses in running the county. Kirk v. High, 169 Ark. 162, 273 S. W. 389, 41 A. L. R. 782; and Ivy v. Edwards, 174 Ark. 1167, 298 S. W. 1006.

We have held that, before the county judge is authorized to build a courthouse, he must do so out of funds already accumulated and on hand, or he must make a budget or estimate of the necessary governmental expenses of running the county, and ascertain if there will be a margin left which, when spread over a series of years, will meet the annual payments provided for in the contract for the construction of a courthouse. We have said that, where the county court, in good faith, finds, upon an investigation of the fiscal affairs of the county, that there will be a margin left, if it be spread over a series of years, sufficiéht to meet the annual payments for the construction of a courthouse, such contract for the construction of a courthouse will be a valid and enforceable contract, and the annual payments will be considered allocated or appropriated to the construction of the courthouse. This does not amount to an appropriatiou of the annual payment out of a specific fund, because all payments must be made out of the county general revenue fund, but they are set apart as appropriated for a specific purpose, although they are a part of the county general revenue fund. Under such circumstances, the annual payments for the courthouse are set apart out of the county general revenue and cannot be diverted from the purpose for which it is levied and collected to satisfy the demands of others than the parties contracted with. This is the effect of the opinion of this court in construing our Constitution, and the amendment makes no change in that respect.

In Boone County v. Keck, 31 Ark. 387, the court held that a county is not subject to the process of garnishment. A part of the reasoning of the court is applicable to the principle here discussed, and reads as follows:

“Public policy — indeed, public necessity — requires that the means of public corporations, which are created for public purposes, with powers to be exercised for the public good, which can contract alone for the public, and whose only means of payment of the debts contracted is drawn from the corporators by a special levy for that purpose, should not be diverted from the purposes for which it was collected to satisfy the demands of others than the parties contracted with.”

In keeping with that principle, the Legislature passed a statute providing that it shall be the duty of the clerk, after the adjournment of the court for the levy of taxes and the making of the appropriations, to open a book in which he shall exhibit each appropriation by the amount appropriated therefor. Crawford & Moses’ Digest, § 1986. The same act also provides that every order of allowance made by the county court shall set forth the appropriation out of which the^same is to be paid. Section 1989. It is also provided that the taxes levied for county purposes shall be extended upon the tax-books under the general head of county expenses, and warrants drawn by the clerk shall specify the fund or appropriation upon which the same are drawn, respectively, and shall be made payable to the person in whose favor the allowance is made. Section 1987. These sections are peculiarly appropriate and necessary since the adoption of Amendment No. 11, when considered in the light of the construction placed upon it by this court.

Hence it will be appropriate, if not necessary, to state on the face of the warrants that they were for the building of a courthouse, but it would add nothing to the warrants to write on them that they were to be paid before any other warrants are paid. As we have already seen, a contract for the erection of a courthouse, if valid and enforceable, consecrates or 'sets apart a certain amount of the general revenue for the erection of 'the courthouse, but this does not mean any particular part of the general revenue. All that is required is that the amount so segregated and set apart for the construction of a courthouse shall be used for that purpose, and, if the county officers should attempt to divert it, the holder of the warrants would have a right to stop them just as the holders of warrants issued to defray the lawful and indispensable expenses of the several courts of record of the county would have a right to prevent the county officers from using the funds appropriated for that purpose for other purposes until after their warrants were paid. What we have said is but a restatement of the principles of law decided by this court in the cases above cited and other eases cited in this opinion.

In the application of these well-settled principles of law, it is evident that the contract for the construction of the courthouse involved in this suit is not a valid and enforceable contract. It is plain from the decisions above referred to that it is incumbent upon the county court to ascertain from the budget of past years of the quorum court and from estimates of future conditions of the county if there will be annually a margin left to meet the annual payments for constructing a courthouse after the indispensable governmental expenses of running the county are deducted from the total amount of the county general revenue to be annually levied and collected. In this view of the matter, the- burden of proof was upon the defendants to show that this state of facts existed. Instead of doing so, the proof introduced by them shows to the contrary.

According to the testimony of the county judge, which is not contradicted, he was asked to make an estimate of the several amounts which would probably be received out of the general revenues of the county during the years 1927 to 1940, both inclusiye. His answer is as follows: “1925, $204,463.50, and 1926, $201,923.78. Receipts for 1927 will be approximately the same as for 1926. I have no way of knowing what the receipts for 1928 to 1940, both inclusive, will be, but I feel justified in making the statement that they should be substantially as much as for the year 1927, and may be much more.” He was then asked what had been the expenses of the county for each of the years 1925 and 1926 and what would be the probable expenses of the county for each of the years 1927 to 1941, both inclusive. His answer reads as follows: “Expenses for the year 1925 were $122,447.31, and for 1926 the expenses were $155,-855.19. Expenses for the year 1927 to 1940, both inclusive, including the annual payment of $45,000 on the courthouse, should easily be within the amount of the receipts for those years.”

The contract' shows that. Peterson was to receive $692,500 for the erection of the courthouse. The contract was executed on the 25th day of May, 1927. Under its provisions warrants were to be issued for the total amount of the contract price. Of these $95,000 were payable on demand. Forty-five thousand dollars of the warrants were payable annually on August 1 during the years 1928 to 1940, both inclusive. The remaining $12,500 in warrants was payable on August 1, 1941. Thus it will be seen that $95,000 of these warrants were payable during the year 1927. The total revenue for that year was estimated to be $201,923.78. Expenses of the county government were estimated to be $155,855.19. After deducting the estimated county government expenses for 1927 from the total revenue for that year, there would only be left $46,168.59. This is a materially less sum than $95,000. Hence it inevitably follows that the contract for the construction of the courthouse is not a valid and enforceable contract when tested by the principles of law above stated.

We are not advised as to the urgent necessity of constructing a courthouse in Union County, but we are fully persuaded that it is better that Union County should undergo temporary inconvenience than that a plain provision of the Constitution should be overridden or disregarded.

It necessarily follows that the chancery court erred in dismissing the complaints for want of equity, and the decrees must be reversed; and the cause will be remanded with directions for further proceedings in accordance with the principles of equity and in conformity with this opinion. It is so ordered.

REHEARING OPINION.

Hart, C. J.

Counsel for appellees in their motion for rehearing contend that the court erred in finding that the revenues of the 'county derived from all sources for the year 1927 were insufficient to pay the legal and indispensable running expenses of the county and the installment of $95,000 due in that year for the construction of the courthouse; and in this contention we are of the opinion that counsel for appellees are correct. While counsel for the parties referred to the record in both cases in their original brief, we \yere led to investigate the case last tried for a more complete statement of the facts. Upon reexamination of the record in ease No. 202, we find that it shows that on the 15th day of February, 1926, which was an adjourned day of the levying court for 1925, the county judge and the members of the quorum court made an investigation of the financial affairs of the county, and found that $50,000 of the initial payment of $95,000 was left over after paying the budget of the county for 1925; that $45,000' would be left after paying the running expenses for 1926 for each succeeding year for fifteen years. Thus it will be seen that it was ascertained that the county had $95,000 on hand at the time the contract for the construction of the courthouse was executed on May 25, 1927, which was available to make the first payment, and for this reason the warrants for the payment of the initial payment of $95,000 were made payable on demand.

It follows that we erred in our finding of facts as indicated in our original opinion, and, on account of that error, the petition of appellees will be granted. ¥e adhere to our conclusions of law as stated in our original opinion, and, under our finding of facts herein, as applied to our conclusions of law, the opinion of the chancellor in the consolidated cases was .correct, and the decree will therefore be affirmed. It is so ordered.


author: Hart, C. J.,

text:
    Blalock v. Miller.
    Opinion delivered October 24, 1927.
    1. Counties — use of proceeds from sale of bonds. — Acts 1927, p. 86, authorizing county courts, on finding th,at debts existing December 7, 1924, had been erroneously paid from the general revenue, instead of from funds derived from the sale of bonds authorized by Amendment 11, to make an order allowing the amount thereof against the bond account, and to credit the general fund therewith, held unconstitutional.
    2. Constitutional law — construction of amendment by legislature. — Where the meaning of a provision of the Constitution or an amendment thereto has been declared by the Supreme Court, it is not within the power of the Legislature to change such meaning by statute.
    3. Counties — use of proceeds of bond issue. — Warrants issued after the issuance of bonds under Amendment 11, authorizing a bond issue to pay indebtedness existing at the time of the adoption of such amendment, not shown to have been issued in renewal of warrants for part of the indebtedness existing at the time of the adoption of the amendment, could not be paid out of funds derived from the sale of bonds issued thereunder.
    Appeal from Woodruff Circuit Court, Northern District; W. D. Davenport, Judge;
    affirmed.

      STATEMENT BY THE COURT.
    This is a proceeding by mandamus to compel the county treasurer to pay a warrant out of the funds in his hands derived from the sale of the bonds under Amendment No. 11 to the Constitution.
    The record shows that Edgar Miller, as treasurer of Woodruff County, had a balance of $27,991.75, arising from the proceeds of bonds sold by "Woodruff Gounty, Arkansas, under Amendment No. 11 to the Constitution. At an adjourned term of the county court of Woodruff County, held on May 26, 1927,- an order was entered of record reciting this fact, and it was adjudged that the county treasurer be directed to transfer said fund into the general revenue of the county and to pay from it all county warrants authorized by law.
    On June 7, 1927, E. E. Blalock presented to the treasurer for payment a warrant for $18, dated May 11, 1927. Payment was refused by the county treasurer on the ground that said warrant was not payable out of the funds derived from the sale of bonds under Amendment No. 11 to the Constitution. The circuit court sustained the contention of the county treasurer, and it was considered and adjudged that the petition for a writ of mandamus be denied. From the judgment rendered Blalock has duly'prosecuted an appeal to this court.

      J. F. Summers, for appellant.
    TF. J. Fungan, for appellee.
   Hart, C. J.,

(after stating the facts). The decision of the circuit court was correct.

In Airheart v. Winfree, 170 Ark. 1126, 282 S. W. 963, it was held that, under Amendment No. 11 to the Constitution, a county could not issue bonds but one time, and that was for the debt existing at the time the amendment was adopted. In the case cited the record shows that there were outstanding warrants in the sum of $38,337.48, which was the amount of the bond issue. The bonds were not. issued until some time after the adoption of the amendment, and, in the meantime, several of these outstanding warrants had been paid out of the general revenue. It was the contention in that case that this only amounted to a renewal of the indebtedness existing at the time of the amendment to the Constitution, and that these warrants could be paid out of the fund derived from the sale of the bonds. The court held that the indebtedness existing at the time of the adoption of the amendment had been reduced by payments of warrants out of the general revenue and that the payment operated as a .complete retirement of the indebtedness existing at the time of the adoption of the amendment to that extent, even though the warrants, were paid out of the general revenue of the county. The court said that, because it was not shown that the indebtedness represented by the warrants in that case was a part of the indebtedness of the county at the time of the adoption of the amendment, it was not such a claim against the county as could be paid out of funds derived from the sale of bonds.

In order to meet the situation arising from this decision, the Legislature of 1927 passed an act to provide for the relief of counties which had issued and held bonds under'the provisions of Amendment No. 11 and had erroneously paid some of the indebtedness for which said bonds were sold out of the general revenue. Acts of 1927, page 86. Section 1 of that act authorizes the county court, upon finding that any part of the indebtedness existing December 7, 1924, had been erroneously paid out of the general revenue of the county, when the same should have been paid out of the funds derived from the sale of said bonds, to make an order allowing said amount so erroneously paid out of the general fund, against the bond account, and credit the general revenue fund of said county with said amount so erroneously paid. This act is unconstitutional and void, for the reason that it authorizes the county court to do something which, under the provisions of said Amendment No. 11, as construed by this court, could not be done. If the Legislature could change the meaning of the amendment as construed by the court and make it mean something else than its plain meaning, then the amendment had just as well never have been passed. Snch a course would place an act of the Legislature above the Constitution. The meaning of a provision of the Constitution or amendment thereto having been declared by the court, it is plainly not within the power of the Legislature to change the meaning by statute.

The warrant involved in this case was issued on May 11, 1927, which was after the issuance of bonds under Amendment No. 11. It is not shown that this warrant was issued in renewal of a warrant for part of the indebtedness existing at the time of the adoption of said amendment, and it could not therefore be paid out of the funds arising from the sale of the bonds. The fund derived from the bond issue can only be used to pay the indebtedness existing at the time of the adoption of said amendment or to provide a sinking fund for that purpose for the bonds issued and not now due.

It follows that the judgment of the circuit court must be affirmed.


text:
    Hodges v. Smith.
    Opinion delivered October 24, 1927.
    1. Continuance — absent witness — cumulative testimony.— Refusal of a continuance on account of the absence of a witness was not an .abuse of discretion where his testimony would have been merely cumulative.
    2. Continuance — absence op witness — diligence.—A motion for continuance on the account of the absence of a witness was properly overruled, where the witness was served with process before the trial, but the defendant did not ask for an attachment.
    3. Highways — rules governing movement of automobiles. — The general rules governing the movement of automobiles, except as changed by statute, are the same as those which regulate the movement of wagons and other vehicles.
    4. Highways — duty to yield room to pass. — Where defendant was driving an automobile more rapidly than the truck driven by plaintiff, it was plaintiff’s duty to yield enough room for defendant to pass when defendant gave warning that he was about to do so'.

      5. Highways — care in passing another vehicle. — An automobile driver, in attempting to pass a truck driven on the right-hand side of the road, where there was plenty of room to pass on the left, had the duty to exercise ordinary care and skill.
    6. Highways — evidence of negligence. — Evidence held to warrant a finding that, after the front wheels of defendant’s automobile passed the front wheels of plaintiff’s truck, defendant swerved to the right without warning, and negligently ran his automobile into the front wheel of plaintiff’s truck, causing injury thereto.
    7. Damages — element of punitive damages. — Where there was no element of wantonness or willfulness or such a conscious indifference to the consequences in defendant’s driving his automobile which overtook plaintiff and ran into his truck in attempting to pass it, thereby causing injury, it was error to submit to the jury the question of punitive damages.
    8. Appeal and error — rendering judgment which the lower court should have rendered. — Where the lower court erroneously permitted the jury to find punitive damages in addition to actual damages, and the jury found .separate sums as compensatory and as punitive damages, the error may he cured by rendering judgment for plaintiff for compensatory damages in the amount fixed by the jury.
    9. Costs — award on appeal. — In an action for personal injuries, and for damage to an automobile, where the jury found for plaintiff in named sums for compensation for property lost, for physical injury and for punitive damages, since the punitive damages were allowed in substantial amount, .and the error in submitting the question thereof could be cured on appeal, by rendering judgment for compensatory damages only, the costs of the appeal only will be awarded to defendant.
    Appeal from White Circuit Court; E. D. Robertson, Judge;
    modified.
    STATEMENT OE FACTS.
    J. 0. Smith sued W. A. Hodges to recover'damages for injuries to his person and to his automobile occasioned, as alleged, through the negligence of Hodg*es in driving his automobile against the front wheel of the automobile in which Smith was riding.
    According to the evidence for the plaintiff, on the 27th day of January, 1926, about four o’clock in the afternoon, while he was driving a 1922 model Ford truck northward along a public highway in White County, Arkansas, he was overtaken by W. A. Hodges, driving a Dodge sedan, and, after the front wheels of the Dodge sedan had passed the truck, Hodges swerved to the right, and his car caught the front wheel of the truck and forced it over an embankment, throwing Smith out and severely injuring him. The son of Smith was riding in the car with him, and positively recognized W. A. Hodges as the man who was driving the Dodge sedan which ran into the Ford truck. Other witnesses near the scene of the accident testified that W. A. Hodges was the person who was driving the Do'dge sedan which ran into the Ford truck driven by J. 0. Smith. While Smith was crossing a bridge, Hodgos blew his horn as a warning that he intended to pass Smith. He was driving at the rate of fifteen or twenty miles an hour, while Smith was not going over eight or ten miles an hour. Smith was driving along the right-hand side of the road, and there was plenty of room for Hodges to have passed his oar without running into it.
    Hodges denied that he was the person who ran into file truck driven by Smith and turned it over the embankment on the side of the road on the day in question.
    The jury returned the following verdict: “We, the jury, find for the plaintiff in the sum of $100 as actual damages to the truck, and the further sum of $25 for physical damage, and the further sum of $300 as punitive damages. ’ ’
    From the judgment rendered the defendant has duly prosecuted an appeal to this court.
    J. ÍV. Rachel's, for appellant.

      Mchaffy & Miller and Culhert L. Pearce, for appellee.
   Hart, C. J.,

(after stating the facts). It is first earnestly insisted that the judgment should be reversed because the court refused to grant the motion of the defendant for a continuance. According to the evidence for the plaintiff, the accident occurred about four o’clock in the afternoon on January 27, 3926, while he was driving northward in White County, Arkansas, towards Bald Knob. It was the theory of the defendant that on that day his car, which was ia Dodge sedan, was in a garage at Bald Knob which was operated by GL T. Henry.. Bill Kent worked in the garage, and, in his motion for a continuance, the defendant set up that he could prove by Kent that, for several days before the alleged accident, he was the only mechanic that had worked on the defendant’s car, and that the defendant’s car was in the garage where he worked all day on the '27th day of January, 1926. The record shows that the defendant testified to this fact, if fact it was, iand that he was corroborated by the testimony of the keeper of the garage. The complaint of the plaintiff alleges that the accident occurred on the 27th day of January, 1926, and this put the defendant on notice that he was charged with having negligently run into the plaintiff’s car on that day north of a concrete bridge across Grin Creek, in White County, Arkansas, while said car of the plaintiff was traveling in a northerly direction. This put the defendant on notice of what he should prove as a defense to the action, and that, if he claimed he was not the person who overtook the plaintiff in an automobile and negligently ran into the car driven by the plaintiff, he could prove such fact by showing that he was at another place on that day. It could not be said that he could only prove his whereabouts by the owner of the garage and a mechanic working therein. It cannot be said that his defense to the action could only be established by showing that his car was in a garage in Bald Knob. • He could have shown that he was not the person who ran into the plaintiff by establishing that he wias at another place at the time- the accident occurred. Hence the testimony of Kent was cumulative merely, and the court did not abuse its discretion in refusing to grant the defendant a continuance on account of the absence of Kent. Spear Mining Co. v. Shinn, 93 Ark. 346, 124 S. W. 1045; and El Dorado Ice & Cold Storage Co. v. Dingle & Kincaid, 173 Ark. 506, 292 S. W. 690.

Again, it cannot be said that the defendant made a sufficient showing of diligence in the matter within the rule announced in Finley v. Glift, 164 Ark. 190, 261 S. W. 319, and in nnmerons other eases decided by this court. According to the allegations of the complaint, the accident occurred on the 27th day of January, 1926, and the suit was filed on the 29th day of January, 19'26. Trial of the case was had on the 20th day of July, 1926. The witness Kent was only served a few days before the trial, and the record does not show that the defendant asked for an attachment for the witness. The defendant had filed an answer, in which he denied that, on the day alleged by the plaintiff, or iany other day, he drove a car along the highway and ran into the car driven by the plaintiff while attempting to pass him in his automobile. While the defendant excepted to the action of the court in overruling his motion for a continuance, the court had a right to assume that, by going to trial without having asked for an attachment for the witness, he had other witnesses by whom he could establish that he was at another place than the scene of the accident at the time it occurred. Hence we hold that the court did not err in refusing to grant the motion of the defendant for a postponement or a continuance of the case.

The general rules governing the movement of automobiles, except as changed by statute, are the same as those which, as the result of long usage, regulate the movement of wagons and other vehicles of like kind. The record shows that the defendant was driving his car at a more rapid rate of speed than that of the Ford' truck driven by the plaintiff. It was the duty of the plaintiff to yield room enough for the defendant to pass him when the latter blew his horn and gave him warning that he was about to do so. According to the evidence of the plaintiff, he was on the right-hand side of the road, going north, and there was plenty of room on the highway for the defendant to pass his car on the left. It was the duty of the defendant, in overtaking and attempting to pass the plaintiff, to exercise ordinary care and skill in doing so. Hnder the evidence disclosed by the record, the jury might have found that the defendant, after the front wheels of his car had passed the front of the plaintiff’s car, swerved suddenly to the right, intending to return to the right-hand side of the road, without warning the plaintiff, and that he negligently ran his car into the front wheel of the plaintiff’s car and thereby caused the injuries complained of. Wells v. Shepard, 135 Ark. 466, 205 S. W. 806. The evidence warranted the jury in finding for the plaintiff on the question of compensatory damages, and an examination of the record shows that there was no prejudicial error resulting to the defendant from the trial on this branch of the case.

It is earnest^ insisted, however, by counsel for the defendant, that the court erred in submitting to the jury the question of punitive damages, and in this contention we .think counsel are correct. In St. L. S. W. Ry. Co. v. Owings, 135 Ark. 56, 204 S. W. 1146, it was held that negligence alone, however gross, is not sufficient to justify the award of punitive damages. There must be some element of wantonness or such a conscious indifference to the consequences that malice might be inferred. In other words, in order to warrant a submission of the question of punitive, damages, there must be an element of willfulness or such reckless conduct on the part of the defendant as is equivalent thereto. In the case at bar there is no element, of wantonness or willfulness on the part of the person driving the car which overtook the plaintiff and ran into his car and thereby caused the injuries complained of. The overtaking oar was only going at the rate of between fifteen and twenty miles an hour, and the testimon3 for the plaintiff only warrants the inference that the defendant, in endeavoring to return to the right-hand side of the road, swerved his car to the right too suddenly as he was passing the car driven by the plaintiff, and that his negligence in so doing caused the injury complained of. As we have already seen, there is no testimon3r in the record that would warrant the jury in finding that the conduct of the defendant was so reckless as to constitute wantonness or willfulness on his part. Hence the court erred in submitting to the jury the question of punitive damages.

This error can be eliminated. The verdict of the jury found specifically the amount that should be awarded to the plaintiff for his own personal injuries and for the injury to his automobile. It then found a separate amount to be awarded the plaintiff as punitive damages. The error can be cured by rendering judgment in favor of the plaintiff for the compensatory damages, which amount to $125. Inasmuch as the punitive damages are for a substantial amount, and this is a- law case, the cost of the appeal must be awarded to the defendant. American Soda Fountain Co. v. Battle, 85 Ark. 215, 107 S. W. 672, 108 S. W. 508.

It follows that the judgment will be reduced to the sum of $125, and judgment will be rendered here in favor of the plaintiff against the defendant for that amount, and the defendant will be awarded the costs of the appeal against the plaintiff. It is so ordered.


author: Wood, J.

text:
    Oberste Brothers v. Crabtree.
    Opinion delivered October 24, 1927.
    1. Landlord and tenant — continued occupancy under new landowner: — Where a tenant continued occupancy under a new landowner, after the latter had taken possession and the tenant had notice of the alienation, the relation of landlord and tenant w>as created between them.
    2. Mortgages — priority of landlord’s lien. — A purchaser of land from the landlord, who furnished his tenants supplies, held entitled to a lien on the crops, under Crawford & Moses’ Dig., § 6890, as against mortgagees of the crop, where he paid the former landlord the amount of the tenant’s accounts which is part consideration of the land, and where the relation of landlord and tenant began before the tenants had planted the crops; the transaction between the purchaser and landlord not amounting to an assignment, prohibited by § 6889.
    3. Assignments1 — o-pen account. — -An open account is not assignable, under Crawford & Moses’ Dig., § 475.

      4. Landlord and tenant — assignment of landlord’s lien. — A landlord’s lien for rent, under Crawford & Moses’ Dig., § 6889, is personal to the landlord and not assignable, so as to give a right of action in the assignee, to have a lien declared and enforced on the crops grown on the land rented.
    Appeal'from Johnson Circuit Court; J. T. Bulloch, Judge;
    affirmed.

      Jesse Reynolds, for appellant.
    Appellee pro se.

   Wood, J.

This action was begun in a justice of the peace court in Johnson County. The facts are set forth in an agreed statement as follows:

In the early part of 1925 Mrs. Martha Jacobs was the owner of a certain tract of land in Johnson County, Arkansas. She rented this tract of land for the year 1925 to William Huston and Jefferson Huston. She furnished to William Huston the sum of $52 as supplies for said year and to Jefferson Huston the sum of $72.75 for supplies for said year. On the 9th day of February, 1925, William Huston mortgaged his crop on this place to Oberste Brothers. On February 25, 1925, John Crab-tree was trying to negotiate a deal with Mrs. Martha Jacobs to purchase this particular tract of land. After agreeing upon the price of land, Mrs. Jacobs advised him that she had furnished to William Huston $52 supplies and to Jefferson Huston $72.75 supplies for that year. After agreeing upon the price of the land, Mrs. Jacobs advised Crabtree that, if she sold the land, she was moving away, and would not sell it unless he would buy the accounts of the two Huston boys for the amount of supplies that she had furnished them. This Crabtree agreed to do. He purchased the same, paid the consideration for the place, and went into possession of the same on the 25th day of February, 1925. Thereafter, and on March 14,1925, Jefferson Huston mortgaged his crop on said place to Oberste Brothers for supplies for the year. Complying with their rental contract with Mrs. Jacobs for the year 1925, they proceeded and cultivated a crop upon this -land, which amounted to..................bales of cotton, all of the value of $125.75. On the 22nd day of December, 1925, John Crabtree brought suit to enforce Ins landlord’s lien for the amount of supplies that had been furnished to William Huston and Jefferson Huston by Mrs. Jacobs. The two suits were consolidated in the justice of the peace court and also in the circuit court. Oberste Brothers intervened in the justice court and claimed the cotton raised on this land under and by virtue of the mortgages executed to them by William and Jefferson Huston. The trial court found that Mrs. Jacobs had furnished William Huston supplies in the sum of $52 and Jefferson Huston supplies in the sum of $72.75; that Mrs. Jacobs, on February 25, 1925, sold to John Crabtree the particular land on which the crops were grown, upon which crops Crabtree seeks to have the lien declared. The court entered a judgment in favor of Crabtree against William Huston for $52 and against Jefferson Huston in the sum of $72.75, and sustained the attachments for these sums. From these judgments Oberste Brothers duly prosecute this appeal.

The only question for decision is whether or not the court erred in rendering judgment in favor of Crabtree for the amounts mentioned and in sustaining the attachments. Section 6890 of Crawford & Moses’ Digest gives the landlord a lien on crops raised upon premises rented to a tenant for the value of supplies furnished such tenant to make and gather the crop, Avhich lien has preference over any mortgage or other conveyance of such crop made by the tenant.

The court did not err in rendering" a .judgment in favor of Crabtree for the amounts mentioned, because the facts proved that the appellee, at the time he purchased the land from Mrs. Jacobs, became the landlord of the Hus-tons. True, at the time Mrs. Jacobs sold the land to Crabtree she had furnished the Hustons supplies to the extent of the amounts mentioned in the judgment rendered in favor of Crabtree. But Mrs. Jacobs, it appears, exacted these amounts as a part of the consideration for the purchase money of the land. While Mrs. Jacobs bad rented the land to the Hustons and bad furnished them the supplies prior to her sale of the land to Crabtree, nevertheless Crabtree purchased the same on February 25, 1925, and paid the accounts of the Hus-tons with Mrs. Jacobs as part consideration therefor, and went into possession thereof on February 25,1925, which necessarily was before the cotton was grown by the Hus-tons upon the land purchased by Crabtree from Mrs. Jacobs. As the result of this transaction Crabtree became the landlord of the Hustons. When' Mrs. Jacobs moved away and Crabtree toolc possession under his purchase, this was notice to the tenants of the alienation by Mrs. Jacobs ¡and the purchase by Crabtree. Crabtree thus became the owner of the reversion, and the Hustons had notice of such fact by the change of possession. The result of the transaction, under the facts stated, was to create the relation of landlord and tenant between Crab-tree and the Hustons from the time of the purchase and the taking possession of the land by Crabtree on the 25th of February, 1925. From that time on Crabtree must be held to have recognized the Hustons as his tenants and the Hustons to have recognized him as their landlord.

In 25 C. J., p. 966, § 39, it is said: “A tenant’s continued occupancy under the tenancy with'notice of alienation amounts to a recognition of the purchaser as his landlord. So, where the tenant is dealt with by the alienee as his tenant, his possession becomes that of the alienee. ’ ’

The evident purpose of the statute under which the appellee claims a lien was to give the landlord who rented the land, and furnished his tenant with supplies to make a crop on the land rented, a lien for the value of the supplies furnished. Under the facts stated it must be held, to effectuate the purpose of this law, that Crabtree furnished the supplies, because he paid Mrs. Jacobs the value of the supplies which she had furnished, and was compelled to do so in order to consummate the purchase of the land. Prior to the purchase there had been no severance of the rent, and therefore, when Crabtree purchased,, he became entitled to the rents thereof as the owner of the land, and the Hustons, by continuing to occupy and grow crops on the land after Crabtree had purchased and taken possession thereof, as already stated, recognized him as the landlord and entitled to the rent; and, as we have also seen, Crabtree, in legal effect, furnished the supplies to the Hustons, because he was required by Mrs. Jacobs to pay to her the accounts of the Hustons as a part consideration for the purchase of the land.

“An open account, under our statute, is not assignable.” Jett v. Maxfield Co., 80 Ark. 167, 96 S. W. 143. See also National Fire Insurance Co. v. Pettit-Galloway Co., 157 Ark. 365, 248 S. W. 262; § 475, C. & M. Digest. Likewise, under our statute and decisions, a landlord’s lien for rent is personal to him and not assignable so as to give a right of action in the assignee to have a lien declared and enforced on crops grown on the land rented. See Roberts v. Jacks, 31 Ark. 597, 25 Am. Rep. 584; § 6889, C. & M. Digest; Lamberth v. Pounder, 33 Ark, 707; Varner v. Rice, 39 Ark. 334; Walters v. Myers & Co., 39 Ark. 561; Nolan v. Royston, 39 Ark. 561; Block v. Smith, 61 Ark. 266, 32 S. W. 1070.

Learned counsel for the appellant relies upon the above decisions, contending that, under the above facts, the accounts of the Hustons with Mrs. Jacobs were nothing more nor less than open accounts for supplies which were assigned to the appellee, and that the relation of landlord and tenant did not exist between the appellee and the Hustons with reference to these supplies. But we cannot concur in this view, and, as already stated, we are .convinced that the facts fully justified the court in finding that the appellee did sustain the relation of landlord to the Hustons with reference to these supplies. Under the facts stated the transaction was not an assignment of the accounts for supplies to the appellee by Mrs. Jacobs, and it was not an assignment of an account for rents. On the-contrary, the transaction was nothing-more nor less than a sale by Mrs. Jacobs, the landlord, to the appellee of the land itself upon which the crops in controversy were grown; and the facts clearly establish that the relation of landlord land tenant existed between the appellee and the Hustons before the crops were planted, and that, as such landlord, the appellee in legal effect did furnish the supplies, the value of which he here seeks to recover. The trial court ruled correctly in so holding. “The remedy by attachment given to the landlord lies at the suit of the landlord or the assignee of the reversion, and ordinarily lies only by the one or the other.” 36 C. J. 461, § 1370, and cases cited in note.

The judgment of the trial court must therefore be affirmed. It is so ordered.


text:
    Core v. McWilliams Company, Inc.
    Opinion delivered October 24, 1927.
    1. Limitation op actions — recovery op money paid on- void contract. — A complaint in an action by landowners and taxpayers of a road improvement -district, alleging that money belonging to- the district was paid defendant on a void contract, and that defendant converted it to its own use, held not to state an action founded on contract within Crawford & Moses’ Dig., § 6950, providing that such action shall be brought within three years.
    2. Limitation op actions — recovery op money paid on void contract.- — An action by landowners and taxpayers of a road improvement district to recover money alleged to have been paid defendant on a void contract and converted by it, held to be covered by Crawford & Moses’ Dig., § 6950, providing that all actions not included in the previous sections relating to- limitation of actions should be commenced within 5 years from the time the cause of action accrued.
    Appeal from Poinsett Chancery Court; John W. Scobey, .Special Chancellor;
    reversed.

      Gautney & Dudley, for appellant.

      Davis & Gosien, for appellee.
   Wood, J.

This is an action by the appellants, landowners and taxpayers of Road Improvement District No. 7 of Poinsett County, Arkansas, against the appellees to recover the sum of $31,890.77. It is unnecessary for the purposes of the decision to set out the whole complaint. It is conceded that the only question in the case is whether or not the action is barred by the statute of limitations. The complaint, after setting up the organization of Road Improvement District No. 7 (hereafter, for convenience, called district) and the history of the proceeding leading to the deposit of the money which they seek to recover, in the First National'Bank of Marked Tree (hereafter called bank), in substance alleges that the sums of money were unlawfully piaid out by the bank to the McWilliams Company, Inc. (hereafter called company), by a check signed by B. F. Rogers, without an order of the board of directors of said district and without a warrant being issued for said sum playable to the company signed by the chairman of the board or any officer authorized to sign the same, and without same being signed by the district or any officer thereof authorized to sign the same. The complaint alleged that $25,000 of the aggregate amount was thus unlawfully paid to the company on December 29, 1920, $1,890.77 on April 5, 1921, and the further sum of $5,000 prior to June 1,1922. The complaint further alleged that, by reason of said payments being made las aforesaid, the defendant company unlawfully received and converted to its own use the sumuof $31,890.77, money belonging to the district as aforesaid. It is alleged that the money was unlawfully paid by Rogers and the bank upon a pretended contract made by the commissioners with the company for the construction of the proposed improvement, and that the contract was void for the reason that the assessment of benefits was declared void by decree of the chancery court of Poinsett County, and the company did not carry out the contract, and the money was not paid upon estimates furnished by engineers, and that no improvement was constructed in the district.

The last paragraph of the complaint preceding the ■prayer, in substance, alleged that the moneys came into the hands of the defendants, B. F. Rogers, C. A. Blanton and H. B. Thorn, as commissioners of the district and the bank as depository under the express trust created by the act creating the district, and that, as such, they unlawfully converted the same to their own use and unlawfully paid the same to the company, which, in turn, unlawfully converted the same to its own use. There is also an allegation in the complaint to the effect that the payments were not made for the purpose of paying preliminary expenses for the creation and organization of the district. The prayer was for judgment against the defendants for the amount named, with interest, for the benefit of the landowners and taxpayers of the district.

The defendant filed a demurrer, setting up “that the complaint on its face shows the cause of action set out is barred by the statute of limitations, in that the causes of action therein set forth accrued more than three years before the complaint was filed and summons issued to the proper officer.”

The cause was submitted upon the demurrer to the complaint. The court found that the cause of action was barred by the statute of limitations, and sustained the demurrer. The appellants stood on their complaint. The court entered a judgment dismissing the complaint, from which is this appeal.

It is conceded by the appellants that the judgment of the court is correct if the three-year statute of limitations governs. But their contention is that the cause of action stated in their complaint is governed by the five-year statute of limitations. The appellees’ counsel begin their brief by sa3dng that the only question for decision is whether or not this action is barred by the statute of limitations. They contend that the judgment of the court is correct because, as they insist, the cause of action is governed by the three-year and not the five-year-statute of limitations. The question for decision therefore is whether or not the action is barred by the five-year statute of limitations. Section 6950 of C. & M. Digest provides: “The following actions shall be commenced within three years after the cause of action shall have accrued, and not after: (1) All actions founded upon contract or liability, expressed or implied, not in writing,” etc.

Following the above section are many sections designating particular actions and providing for the statute, of limitations applicable to such actions. Then comes the following section: “All actions not included in the foregoing provisions shall be commenced, within five years áfter the cause of action shall have accrued.” Section 6960, C. & M. Digest.

The contention of the appellees is that the action is one founded on contract or liability, express or implied, and governed by the three-year statute of limitations supra. But we cannot concur in this view. We are convinced from the allegations of the complaint that the action is one sounding in tort for the unlawful and wrongful conversion of improvement district funds. The action, under the allegations, sounds in tort and not in contract. The allegations are that the money was paid to the company by the commissioners and the bank unlawfully upon a pretended and void contract, without an order of the board of directors of the district, and without a warrant issued to the company signed by the chairman of the board or the district, or any officer ¡authorized to sign the same; that the company unlawfully received and converted to its own use the money belonging to the district; that two of the commissioners knowingly and willfully and corruptly permitted the other commissioner, Rogers, to sign the cheeks and the bank to unlawfully pay the money, and the company to unlawfully receive the same and to unlawfully convert the same to its own use, and that the money so paid out and converted was held by the bank under the terms of an express trust created by the act creating the district.

The allegations of the complaint are sufficient to show that the money was not. paid out and received upon any contract or liability, express or implied. Under the allegations of the complaint the company was a particeps to the conversion and unlawful appropriation of the funds, because it was cognizant that the funds were being wrongfully and illegally paid' to it, land, knowing suck to be the fact, it received and appropriated such funds to its own use. This would give the property owners and taxpayers of the district a right of action against all those who thus were instrumental in the conversion and misappropriation of the funds.

The case of Clark v. School District No. 16, 84 Ark. 516, 106 S. W. 677, upon which the appellees rely to sustain their contention, is differentiated.from the case at bar by the facts. In that case Clark acted as the clerk of the board of directors of the school district, and rendered services to the board as such, and the board of directors drew warrants for his services. Although these services were illegal, as held in that case, nevertheless they were actually rendered, and Clark received pay for same under a contract with the board. The facts of that case do not. show that Clark knew, at the time he received pay for the service, that his contract was illegal, though it turned out to be so. Here the allegations of the complaint clearly show that the company did not do the work for which it ostensibly received payment. It knew that it was receiving money contrary to the express terms of the act creating the district and contrary to the express terms of the trust under which the bank held the money. The complaint charges that the commissioners knowingly, willfully and corruptly issued checks for the payment of money to the company, and that they and the bank unlawfully converted the same to their own use, and that the company in turn unlawfully converted the same to its own use. The allegations are sufficient to show that the directors of the bank were guilty of conduct which clearly amounted to a tort and actual fraud on the district because of the manner in which they handled the funds, and that the company, in receiving the money under these circumstances, was a particeps in the tort. In all such cases an action to recover the money cannot be said to be founded upon a contract or a liability growing out of a contract, such as is contemplated under § 6950, supra. That statute does not embrace actions sounding purely in tort, but in contract. See Suter v. Wenatchie Water Power Co., 35 Wash. 1, 76 Pac. 298, 102 Am. St. Rep. 881; McGaffin v. City of Cohoes, 74 N. Y. 387, 30 Am. Rep. 307; Aldrichs v. McLean, 106 Fed. 791, 45 C. C. A. 631; Aldrichs v. Skinner (C. C.) 98 Fed. 375.

Section 6960 above covers all actions not included within the provisions specifically named in the sections preceding. The cause of action stated in the complaint under consideration is not covered by any of the preceding sections. It therefore comes within the provisions of § 6960, supra.

All cases sounding in tort not coming within the specific provisions in preceding sections are covered by the general provision contained in § 6960 above, under which section the case in hand falls. See Sims v. Craig, 171 Ark. 492-496, 286 S. W. 867. The decree is therefore reversed, and the cause is remanded with directions to overrule the demurrer and for further proceedings according to law and not inconsistent with this opinion.


author: Smith, J.

text:
    Brummett v. Dean.
    Opinion delivered October 24, 1927.
    Mortgages — estopped from enforcing lien. — A mortgagee who accepted payment on the secured debt out of the proceeds of a conveyance of an interest in the property, without notifying the grantee that he did not intend thereby to release the security of his mortgage, was not estopped from asserting and enforcing his mortgage in a suit to foreclose it, where he had done nothing to induce the purchase.
    Appeal from Ouachita Chancery Court, Second Division ; George M. LeCroy, Chancellor;
    reversed.

      T. J. Gcmghcm, J. T. S'ifford, J. E. Gaughan and Elbert Godwin, for appellant.

      McKay & Smith, for appellee.
   Smith, J.

On November 18, 1919, M. L. Allen conveyed a tract of land to W. M. Dean, reserving an undivided one-half interest in the mineral rights. Dean became indebted to H. L. Curry, and, to secure this indebtedness, executed, on April 13, 1921, a deed of trust conveying his entire interest in the land, including the mineral rights. The deed of trust was duly recorded.

On February 6, 1926, Dean conveyed to J. M. Smith, trustee, an undivided one-quarter interest in the mineral rights, and received as the consideration therefor the sum of four hundred seventy ($470) dollars. Dean deposited this money in a bank, and advised Curry of that fact, and told him at the time that $300 of the purchase money would be applied to the payment of the indebtedness secured by the deed of trust, which was then past due. Curry said ‘ ‘ That is all right, ’ ’ and received the $300 and credited that payment on Dean’s indebtedness secured by the deed of trust. On May 21,1923, Smith, as trustee, conveyed to W. A. Graves the undivided one-fourth interest in the mineral rights which had been conveyed to him by Dean. The balance secured by the deed of trust from Dean to Curry was not paid, and, on April 5,1926, Curry brought suit to foreclose that instrument. Graves and Smith became parties to that suit, and filed an answer, in which they alleged that Curry was estopped from asserting the lien which he sought to foreclose by reason of the acceptance of the $300 from Dean, and the court sustained that plea and rendered, a decree accordingly, and this appeal questions only that finding.

It is not contended that Curry was aware of the proposed purchase of the interest in the mineral rights by Smith, trustee, from Dean, or that he did anything which induced that conveyance. On the contrary the court found the fact to be that “H. L. Curry had no knowledge of the sale of said mineral rights to the said J. B. Smith until after the sale had been made land completed, but knew of same at the time said payment of $300 from the proceeds thereof was made to him by said Dean. ’ ’

It is contended that Curry should not have accepted the $300, which he knew Dean had derived from the sale of this interest, without first advising Smith that he did not intend thereby to release the security of his deed of trust, and it is further insisted that, if Curry had so advised Smith, the latter might have protected himself by demanding a return of the money then in the bank, the conveyance to him having been by warranty deed, and that Smith would not later have conveyed this interest to W. A. Graves by warranty deed, which he did do for the sum of $940.

We do not concur in the view that appellant Curry is estopped from asserting the validity of his deed of trust. Smith had constructive knowledge, at least, of that instrument, and of course took title subject to it, and did this without being induced so to do by Curry. He had the right to buy this interest with or without obtaining Curry’s consent, and Dean had the right to sell, subject to the deed of trust, 'Without obtaining Curry’s consent. It does not appear, lat least the court did not find, that Curry did anything which might have influenced Smith’s conduct, except to fail to notify him that he had accepted the $300, but did not intend that action to be construed as a waiver of the security of his deed of trust. But Curry was under no such duty. He made no representations of any kind, and merely accepted the payment, which Dean had the right to make, from whatever source it might have been derived, and the full amount of that payment was credited on the indebtedness which the deed of trust secured.

The case of Imboden v. Talley, 150 Ark. 567, 234 S. W. 991, is in point. Talley owned a tract of land which he contracted to convey to McCray, who bought building material from Imboden to be used in erecting a house on the land. The testimony was conflicting as to whether Talley told Imboden that McCray was the absolute owner of the land, and the finding to the contrary was held not to be against the preponderance of the testimony. The testimony showed that Talley had hauled the building material, which he knew McCray had purchased from Imboden to be used in the building, and it was contended that the latter’s title should be subordinated to Imboden’s mortgage debt incurred in the purchase of the building material, on the alleged ground that Talley, by reason of standing by and permitting Imboden to furnish the material, was estopped from asserting his title. "We held to the contrary.

In the case of Davis v. Neal, 100 Ark. 399, 140 S. W. 278, L. R. A. 1916A 999, a syllabus reads as follows:

“Mere silence will not estop a party to claim land unless, in some way, the party relying on the estoppel is put to disadvantage by the action of the party said to be estopped.”

We think there was nothing in Curry’s conduct which estopped him from asserting and enforcing his deed of trust, and the decree of the court below will be reversed, and the case remanded with directions to overrule the plea of estoppel.