author: Smith, J.

text:
    Mitchell v. Hopper.
    Opinion delivered May 15, 1922.
    1. Courts — adopted construction op constitutional provision.— Const. 1874, art. 6, § 16, concerning the power of the Governor to veto concurrent orders or resolutions of the General Assembly, having been borrowed from Const. U. S., art. 1, § 7, the decisions of the Supreme Court of the United States with reference to the latter section apply with peculiar effect in interpreting the former section.
    2. Constitutional law — propose® amendments — legislative powejr. — In proposing constitutional amendments under Const. 1874, art. 19, § 22, the General Assembly is not exercising its legislative power, but is acting in the capacity of a convention ' expressing the will of the sovereign people.
    3. Constitutional law — legislative construction. — Acts 1879, p. 128, § 3, (Crawford & Moses’ Dig., § 1469), providing that the Governor may veto a concurrent resolution of the General Assembly submitting to the vote of the electors an amendment to the Constitution, is invalid as being in conflict with the Constitution.
    4. Constitutional law — legislative construction op constitution. — Legislative construction of constitutional provisions may be looked to by the courts only in cases of doubt as to their meaning.
    5. Constitutional law — veto op resolution for amendment. — A concurrent resolution of both houses of the Legislature for submission of a constitutional amendment is not within the purview of art. 6, § 16, requiring the submission of orders and resolutions to the Governor before they shall take effect.
    Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor;
    affirmed.

      Chas. T. Coleman, T. M. Mehaffy, J. F. Lough-borough and J. H. Carmichael, for appellant.
    Only three amendments may he submitted at an election. Art. 19, § 22, Constitution. The provision for amendments is not self-executing, but needs legislation. 78 Ark. 468, 472; 106 Ark. 67.
    That legislation was supplied by the act of 1879, which is found, with amendments, in chap. 33, C. & M. Digest, and chap. 32, Kirby’s Digest. See §§ 1, 2, 3 and 4 of the original act, Acts 1879 p. 128. In conferring upon the Governor power to approve or disapprove resolutions for constitutional amendments, that Legislature, many members of which were also members of the Constitutional Convention, was carrying out what the framers of the Constitution understood to be its proper construction; and that act has been continuously in force since that time.
    The exception of questions of adjournment in § 16 art. 6, Const., left no other exceptions from the provision that every order or resolution must be submitted to the Governor. 37 Ark. 374.
    Adjudications in other States holding that the veto power under the particular Constitution considered did not apply to resolutions submitting constitutional amendments, but in each of them the provisions differed from ours in the matter of submitting amendments in this: It required as large a vote to pass the resolution submitting the amendment in the first place as it would take to pass the amendment over the veto of the executive. Moreover, in all these cases there was no mention of provisions for an amendment that were not self-executing, or of a Constitution where the construction by the legislative and executive branches had been uniform over a long period of time that 'approval or disapproval by the executive was necessary. See 3 Dali. 378; 101 Md. 117, 60 Atl. 540; 6 N. D. 81, 68 N. W. 418; 43 La. Ann. 655, 6 So. 798; 196 Pa. 396; 66 Cal. 632, 6 Pao. 734. The act of 1879 should be regarded as a contemporaneous construction of this Constitutional provision, in that it was passed at a time when it was desired to submit amendment number one, and should be given great weight on that account, 51 Ark, 559; 54 Id. 364, 370; 62 Id. 339,

      The constitutionality of the act of 1879 has never been questioned by this court. On the contrary it has been upheld as necessary in carrying out § 22, art. 19 of the Constitution. 78 Ark. 472; 106 Id. 67.
    Since the adoption of amendment No. 10 and the enabling act to carry it into effect, this court has always held that the enabling act was valid, and was necessary to carry it into effect. See 106 Ark. 506; 117 Id. 465.
    Every Legislature since the adoption of the Constitution, and all the executives likewise since that time, have construed it-to mean that the Governor must approve a joint resolution submitting an .amendment before it can be submitted to the people. Black’s Constitutional Law, 3rd. Ed. 51 yld. 326.

      J. 8. Utley, Attorney General, Wm. T. Hammock, and Elbert Godwin, Assistants, for appellee; R. W. Robins, Geo. F. Hartje and J. G. Marshall, of counsel.
    There is no mention of any veto power on the part of the Governor appearing in art. 19, § 22, Constitution. His veto power is limited by art. 6, § 15 Id., to bills which have passed both houses of the General Assembly, and does not extend to any kind of resolution. The requirement of art. 6, § 16, Id., to the effect that orders and resolutions in which the concurrence of both houses may be necessary (except on questions of adjournment) shall 'be presented to the Governor, etc., does not embrace resolutions proposing amendments to the Constitution.
    Art. 5, Constitution, U. S. is no more silent as to -the power of the President over proposed Constitutional amendments than is art. 19, § 22, of our Constitution, while § 16, art. 6 of our Constitution it is patent was adopted from the later part of § 7, art. 1 of U. S. Constitution; yet it has been held that the President’s approval of a resolution of Congress submitting an amendment to the Constitution was not necessary. 3 Dali. 378; 253 U. S. 229; 253 U. S. 232. The Congress itself once voted that the sending of a resolution proposing an amendment to the President was an inadvertent act and that his approval was unnecessary. 34 L. R. A. 97.
    Section 22, art. 19, Constitution, nowhere hints at executive action, but on the contrary evinces a positive intention to send proposed amendments direct from the General Assembly to the Secretary of State for publication and submission, and a reading of that section will dispel any belief that § 16, art. 6, embraces resolutions proposing ■Constitutional amendments. 43 La. Ann. 655.
    The General Assembly in proposing amendments to the Constitution does not act in its ordinary legislative capacity, but acts in the capacity of a convention expressing the supreme will of the people. 8 Ark. 445. The Hartje resolution, therefore, is not a legislative matter, and was not subject to executive action. Supra; 49' Ark. 554; 140 Id. 493; 253 U. S. 350 ; 42 S. C. 217; 117 Ark. 582. The Governor, in approving or disapproving bills or resolutions, is acting as a part of the legislative power and not as an executive. The power of veto is inherently a legislative and not an executive power, and must be found in the 'Constitution as a part of the legislative power or it does not exist. 36 L. R. A. (N. S.) 244; 153 Pac. (Wash.) 594; 140 S. W. (Tex.) 405. See also 72 Ark. 94.
    On the proposition that the Governor has no power to veto resolutions proposing constitutional amendments see the following decisions from the various States:
    Alabama: 87 So. 375; 24 Ala. 108. California: 6 Pac. 734; 4 L. R. A. 429. Colorado: 36 Pac. 221; 160 Pac. 1032. Illinois: 281 111. 17. Iowa: 14 N. W. 748. 'Kentucky: 47 S. W. 779. Louisiana: 43 La. Ann. 647; 9 So. 776. Maryland: 60 Atl. 538, 539. Michigan: 115 N. W. 429, 44-6. Missouri: 31 L. R. A. ¡815. Nebraska: 41 N. W. 981. Nevada: 12 Pac. 838. North Dakota: 34 L. R. A. 97. Pennsylvania: 196 Pa. 396, 50 L. R. A. 568. Tennessee: 122 Tenn. 471. Wisconsin: 152 N. W. 419.
    The rule that where a clause in a Constitution which has received a settled judicial construction is adopted in the same words by the framers of another Constitution, it will be presumed that the construction thereof was likewise adopted, applies not only to adoption by one State from-another, but also to the adoption in the same State of clauses or provision's in an -older Constitution that have received judicial construction into a later Constitution. Black, Constitutional Law, par. 43; 11 Ark. 594; 68 Id. 433; 78 Id. 346; 82 Id. 334; 96 Id. 316; 98 Id. 125; 104 Id. 417; 109 Id. 479; 113 Id. 552; 117 Id. 465; 120 Id. 389.
    It is the duty of this court to construe the Constitution according to its terms and provisions whenever its construction is -called for and without reference to the length of time others may have misconstrued it; nor is it in -any manner bound by any such misconstruction. Where ther-e is great -doubt, legislative construction may be resorted to for .aid, but even then it i-s not binding upon the courts. 85 Ark. 89, 94; 52 Id. 330; Cooley on Constitutional Limitations, 71.
   Smith, J.

Senate joint resolution No. 1, passed- at the 1921 session of the General Assembly, proposed an amendment to the Constitution of the State. The resolution was agreed to by a majority of all the members elected to each House, and this assent was regularly entered on the journals of the Senate and of the House. The resolution was transmitted to the Governor, and by him disapproved. The General Assembly adjourned before the Governor acted on the resolution, and there was therefore no action by the General Assembly after the attempted veto.

Appellant, who is a citizen and taxpayer of the State, brought this suit to enjoin the Secretary of State from incurring the expense of publishing the proposed amendment and from submitting the same to the vote of the people.

In his answer the Secretary of State denied the authority of the Governor to veto a resolution of the General Assembly proposing an amendment to the Constitution, and alleged that the Governor’s attempt to do so was futile. The court below accepted that view and dismissed the complaint, and by this appeal we are asked to determine whether the Governor had that authority; No other question is presented.

Section 22 of article 19 of the Constitution reads as follows: “Either branch of the General Assembly at a regular session thereof may propose amendments to this Constitution, and, if the same be agreed to by a majority of all members elected to each House, such proposed amendments shall be entered on the journals with the yeas and nays, and published in at least one newspaper in each county where a newspaper' is published, for six months immediately preceding the next general election for Senators and Representatives, at which time the same shall be submitted to the electors of the State for approval or rejection; and, if a majority of the electors voting at such election adopt such amendments, the same shall become a part of this Constitution; but no more than three amendments shall be proposed or submitted at the same time. They shall be so submitted as to enable the electors to vote on each amendment separately.”

Article 19 is designated “Miscellaneous Provisions,” and received this designation, no doubt, because of the variety of 'subjects covered by it. It is significant that the section quoted does not appear in article 5 of the Constitution, which deals with the legislative department. When analyzed, it appears that the 'Constitutional requirements for amending the Constitution are that either house of the General Assembly may propose amendments if the proposed amendment is agreed to by a majority of all the members elected to each house.

The section on that subject is silent as to how the amendment may be proposed; but this is ordinarily done by resolution. The proposed amendment, in whatever manner offered, shall be entered on the journals with the' yeas and nays, and, having received the requisité •vote, it is then published and submitted to the electors for approval or rejection, and, if a majority of the electors voting at such election adopt such amendment, the same becomes a part of the Constitution. It appears therefore that the General Assembly proposes, while the electors approve or reject. No mention of the- Governor is made; and if there is any function for him to perform, other provisions of the Constitution must be looked to to ascertain what duty he is called upon to discharge.

Article 6 of the Constitution deals with the executive department of the Government, and section 15 thereof defines the veto power of the Governor. It reads as follows: “Every bill which shall have passed both houses of- the General Assembly shall be presented to the Governor ; if he approves it, he shall sign it; but if he shall not approve it, he shall return it, with his objections, to the house in which it originated, which house shall enter the objections at large upon their journal and proceed to reconsider it. If, after such reconsideration, a majority of the whole number elected to that house shall agree to pass the bill, it shall be sent with the objections to the other house, by which likewise it shall be reconsidered; and, if approved by a majority of the whole number elected to that house, it shall be a law; but in such cases the vote of both houses shall be determined by ‘yeas and nays’, and the names of the members voting for or against the bill shall be entered on the journals. If any bill shall not be returned by the Governor within five days, Sundays excepted, after it shall have been presented to him, the same shall be a law in like manner as if he had signed it, unless the General Assembly, by their1 adjournment, prevent its return, in which case it shall become a law, unless he shall file the same, with his objections, in the office of the Secretary of State and give notice thereof by public proclamation within twenty days after such adjournment.”

It is quite obvious that this section has no relation to proposals for amending the Constitution. The veto ■power there referred to relates expressly and solely to ¡bills which become laws when approved by the Governor, or when retained by him without action beyond the time there limited for his action, or when passed by the two houses over his veto. It may be here noted that the vote essential to pass a bill over the Governor’s veto — a majority of all the members elected to each house — is the vote required by section 22 of article 19 for proposing an amendment to the Constitution for the action of the electors.

We must therefore look further for some provision of the Constitution defining the duty of the Governor in regard to submitting amendments to the Constitution, if that instrument imposes any duty upon him. The only other provision of the Constitution which may, with any plausibility, be said to impose some duty on the Governor in this behalf is section 16 of article 6, which reads as follows: “Every order or resolution in which the concurrence of both houses of the General Assembly may be necessary, except on questions of adjournment, shall be presented to the Governor, and, before it shall take effect, be approved by him; or, being disapproved, shall be repassed by both houses, according to the rules and limitations prescribed in the case of a bill.”

There is, however, a statute which does confer the veto power upon the Governor, of which we shall later have more to say. This is section 3 of' an act approved April 2, 1879 (Acts 1879, p. 128), and appearing in C. & M. Digest as § 1469.

Article 5' of the Constitution of the United States deals with proposed amendments to that instrument. In that respect it corresponds to section 22 of article 19 of our Constitution. It imposes no duty upon the President in regard to such proposals.

The second paragraph of section 7 of article 1 of the Constitution of the United States deals with the President’s power of veto. It is very similar to section 15 of article 6 of our Constitution dealing with the same subject. The principal point of difference is that a two-thirds vote is required, to pass a bill over the President’s veto; whereas a majority of all the members elected to each house of the General Assembly suffices to pass'' a bill over the veto of the Governor. The phraseology and structural similarity between the two section is very striking.

The last paragraph of this section of the Federal Constitution is so nearly identical with section 16 of article 6 of our Constitution as to leave no doubt that our section is a borrowed one, taken almost literally from the Federal Constitution, except as to the vote required to pass an order or resolution over the veto of the President in the one case and that of the Governor in the other.

It also appears that the sections of the Federal Constitution above referred to have served as patterns for numerous other State Constitutions, the relevant portions of which are quoted in the brief of counsel for the State, and in numerous instances those sections have been copied into the Constitutions of other States as literally as is tire case in our own Constitution.

Section 16 of article 6 of our Constitution, being, in effect and in fact, borrowed law, the decisions of the Supreme Court of the United States apply with peculiar effect in its interpretation, according to a well known canon of construction. Hildreth v. Taylor, 117 Ark. 465; Hanson v. Hodges, 109 Ark. 479.

In the case of Hollingsworth v. Virginia, 3 Dall. 378, the question was raised that the Eleventh Amendment to the Federal Constitution had not been properly submitted because the resolution of Congress proposing the amendment was never submitted to the President for his approval. Of that case the Supreme Court of the United States, in the case Hawke v. Smith, 253 U. S. 221, had this to say: “At an early day this court settled that the submission of a constitutional amendment did not require the action of the President. The question arose over the adoption of the Eleventh Amendment. Hollings worth v. Virginia, 3 Dall. 378. In that case it was contended that the amendment had not been proposed in the manner provided in the Constitution, as an inspection of the original roll showed that it had never been submit-ed to the President for his approval in accordance with article 1, § 7, of the Constitution. The Attorney General answered that the case of amendments is a substantive act, unconnected with the ordinary business of legislation, and not within the policy or terms of the Constitution investing the President with a qualified negative on the acts and resolutions of Congress. In a foot-note to this argument of the Attorney General, Justice Chase said: ‘There can, surely, be no necessity to answer that argument. The negative of the President applies only to the ordinary cases of legislation. He has nothing to do with the proposition or adoption of amendments to the Constitution. ’ The court by a unanimous judgment held that the amendment was constitutionally adopted.”

It appears that in only one instance has a proposed amendment to the Federal Constitution ever been submitted to the President for his approval, and some interesting history in regard to that occurrence is recited in the opinion of the Supreme Court of North Dakota in the case of State ex rel. Wineman v. Dahl, 34 L. R. A. 97, 6 N. D. 81, 68 N. W. 418, as follows: “The amendments (to the Federal Constitution) which were made in 1789, 1803, and 1866 were carried through without the action of the President. In 1865 the slavery amendments were inadvertently submitted to the Executive, and approved by him. On discovering this fact, Senator Trumbull of Illinois, chairman of the judiciary committee, introduced a resolution declaring its submission to him to have been an inadvertent act, and that his approval was unnecessary and of no effect. The. resolution also asserted that that case should not constitute a precedent for the future. It was adopted without division.”

Counsel for the Secretary of State cite the decisions of the courts of last resort of a number of States holding that the Governor has no function to perform in the matter of submitting constitutional amendments to the people for their action. There are points of similarity, and of difference as well, between the Constitutions of those States and the Constitution of our own which we will not stop to point out. A case typical of numerous others is that of Warfield v. Vandiver, 101 Maryland 78, 60 Atl. 538. This case is annotated in 4 A. & E. Ann. Cas. 692. The thought running through all these cases, and controlling in each of them, is that, in proposing amendments to the Constitution, the Legislature is not exercising its legislative power. "We have been cited to no case holding to the contrary. The editor’s note to the annotated case of Warfield v. Vandiver, supra, is that “the rule announced in the reported case, that proposed constitutional amendments need not be submitted to the Governor for his approval, has been followed by the courts of the various States apparently without dissent.” (Citing numerous cases).

The decisions of this court accord with the rule announced in the note quoted. The decision of this court in the case of the State v. Cox, 8 Ark. 436, was handed down at a time when the General Assembly had the power to propose and to adopt amendments to the Constitution, but the court there said: “The General Assembly, in amending the Constitution, does not act in the exercise of its ordinary legislative authority of its general powers; but it possesses and acts in the character and capacity of a convention, and is, quoad hoc, a convention expressing the supreme will of the sovereign people, and is unlimited in its power save by the Constitution of the United States.” In the recent case of Whittemore v. Terral, 140 Ark. 493, the court held that the action of the Legislature, pursuant to the power conferred by the Federal Constitution, ratifying a. proposed amendment to that Constitution, was not the enactment of a law.

Much reliance is placed by counsel for appellant on the act of 1879 hereinabove referred to. It is pointed out that this act was passed at the session of the General Assembly which convened just five years after the adoption of the Constitution, and that seven members of this session of the General Assembly had been members of the Constitutional Convention. It is said, therefore, that great weight should be given to the construction which the General Assembly gave the Constitution by the passage of this act. It is also pointed out that the invariable custom since the adoption of the Constitution has been to submit to the Governor for his action all legislative proposals to amend the Constitution; and it is insisted that this long-continued and practical 'construction of the Constitution should be given great weight in its construction.

In answer to all this, it may first be said that the Constitution cannot be thus amended.

In reply to this practical construction of the Constitution which we are asked to follow, it is pointed out, through reference to the various published acts of the General Assembly, that, although section 16 of article 6 expressly excepts resolutions pertaining to adjournment from submission to the Governor, the practice has been to so submit them. Citation is also made to numerous non-legislative resolutions which have been customarily submitted to the Governor for his approval.

Further answering the argument in regard to the effect to be given to the construction of the Constitution by the General Assembly of 1879 by the passage of the act regulating the mode of proposing and voting upon amendments to the Constitution, and the acts of the officers of the State who have proceeded under that act, it is pointed out that the same General Assembly proposed the first amendment to the Constitution, and it did so in a resolution which has since been followed.' It is as follows:

“Resolved, by the House of Representatives of the General Assembly of the State of Arkansas (a majority of all the members elected to each house agreeing thereto) :

“That the following article shall be proposed as an amendment to the Constitution of the State of Arkansas, which, when agreed to by a majority of all the members elected to each house and adopted by a majority of the electors of the State voting at the next general election for Senators and Representatives, shall become a part of the said Constitution, namely:”

This resolution properly construes the Constitution and meets its requirements. It became a proposal when agreed to by a majority of all the members elected to each house of the General Assembly, and was to become a part of the Constitution if adopted by a majority of the electors of the State voting at the ensuing general election for Senators and Representatives.

The legislative act was ministerial. It authorized the submission of the proposal to the only body having authority to adopt or reject it. That was the electors voting at the next ensuing general election for Senators and Representatives. However, the insistence in regard to the effect to be given this act of 1879 as a practical construction of the Constitution by a Legislature composed in part of members who sat in the Constitutional Convention, may be disposed of here, as was a similar contention in the case of Griffin v. Rhoton, 85 Ark. 89, where it was said: “It is insisted that the first Legislature which convened after the adoption of the Constitution of 1874, and which was composed of many members of the convention who dominated its purposes, by passing a statute (act February 1, 1875) carrying out this provision as to other officers, construed it as not including the office of prosecuting attorney, and that we should follow that legislative construction. The rule permitting the consideration by the courts, in construing constitutional provisions, legislative constructions of the same provisions has been frequently approved by this court. State v. Sorrels, 15 Ark. 675; Vahlberg v. Keaton, 51 Ark. 534; Ex parte Reynolds, 52 Ark. 330; Sumpter v. Duffie, 80 Ark. 369. But, as was said by Chief Justice Cockrill in Ex parte Reynolds, supra, such matters are not entitled to controlling weight. It is only when an examination of the Constitution leaves a doubt that the judges are warranted in looking to these extraneous matters for aid.”.

It would be entirely superfluous to have the Governor to act in approving proposals for constitutional amendments. His action in so doing could not be anything more than a mere recommendation to the electors and would not render less necessary their approval at the ensuing election.

This quite obvious statement emphasizes the fact that the proposals for constitutional amendments are not within the purview of section 16 of article 6 of the Constitution. because the orders and resolutions there contemplated are those which “shall take effect” when approved by the Governor or, being disapproved, shall not take effect unless repassed by both houses according to the rules and limitations prescribed in the case of a bill.

This subject has been considered in opinions of such erudition that the temptation to quote from them is resisted only'because of the great length to which it would protract this opinion. The reasoning of the Court of Appeals of Maryland in the case of Warfield v. Vandiver, supra, is in line with that of the numerous decisions from other States cited in the briefs of counsel, and we quote only a short excerpt from that opinion as follows: “The people are the source of power. It is they who make and abrogate written Constitutions, and when in the organic law which they have chosen for themselves they have designated the General Assembly, consisting of a Senate and a House of Delegates, and nothing more, to be the agency for propounding amendments to the Constitution, no executive has the right to step in between that agency and the people themselves and to say that without his approval they shall not be permitted to express their views on measures amendatory of the organic law. Unless the express language of the Constitution has unequivocally clothed the Governor with such an authority, in relation to proposed constitutional amendments, as is the case in Delaware, but in no other State, it cannot be borrowed from some other provision pertaining to a wholly different subject.”

We conclude that the veto of the Governor was ineffective, and the decree of the court below dismissing appellant’s complaint is affirmed.


source: Caselaw Access Project

author: Humphreys, J.

license: Public Domain

text:
    Wesley v. Baker.
    Opinion delivered May 15, 1922.
    1. Mandamus — defense—pendency of another proceeding. — In a proceeding for mandamu's to compel school directors to maintain a separate school for the education of white children in the district, it is no defense that there is pending before the county board of education a petition by the board of directors to transfer the white children to an adjoining school district.
    2. Schools and school districts — proceedings of county board— review. — The acts of a county board of education are quasi judicial, and the only method of reviewing such proceedings is by certiorari.
    3. Schools and school districts — re-transfer of pupils — validity. —-An order of the county board'of education re-transferring four white children to the district of their residence is not invalid, though made for the purpose of augmenting the number of white children in the district so as to require the directors to maintain a separate school for their education.
    Appeal from Nevada Circuit Court; George B. Haynie, Judge;
    affirmed.

      Bush & Bush, for appellants.

      Randolph P. Hamby, for appellees. .
   Humphreys, J.

This is an appeal from the judgment of the circuit court of Nevada County, coercing the directors of School District.No, 61 to provide a.separate school for twelve white children residing in said district. The record reveals that the lands in the district are largely owned by the white people, and most of the school tax paid by them; that there are about one hundred negro and twelve white children of school age residing in the district; that the directors of the school district are negroes, and in the past have maintained a school for the negro children in the district, but none for the white children; that the white children have been in the habit of going to a separate white school about three miles distant and inconveniently situated with reference to their homes; that four of the white children who had been transferred into another district had been transferred back to District No. 61 by the county board of education, over the objection of the directors of said school district, who took an appeal from the order to the circuit court, where same was pending at the time this cause was tried; that, prior to the institution of this proceeding in mandamus, the directors of School District No. 61 had applied to the county board of education for the transfer of the other eight white children residing in the] district to another district, and at the time of the trial of this cause the petition for their transfer was pending before said board; that the parents of the white children residing in the district had almost completed a school building without expense to the district; that a separate school for the negro, children in the district was maintained for a period of five months each year, and was taught by a principal and one assistant whose salaries were respectively $60 and $30 per month; that the funds were insufficient to maintain two schools for three months in the year upon the same basis of expense incident to maintaining a school for the negro children. There is a suggestion in the argument of appellants for reversal of the judgment that this action to compel the directors to maintain a separate school for the white children was prematurely instituted for the reason that the application of the board of directors to transfer eieht of the white children to an adjoining district was pending before the county board of education, and because the petition to transfer four of the white children into District No. 61 over the protest of the directors wa,s pending in the circuit court on appeal from said board. We do not understand that the pend-ency of either proceeding could prevent the parents of the white children, ten in number or over, from petitioning for a writ of mandamus to compel school directors to maintain a separate school for the education of white children in the district. The appeal to the circuit court from the order transferring the four white children into District No. 61 did not supersede the order transí erring them into the district. In fact, this court very recently ruled that the acts of the county board of education were quasi judicial, from which no appeal is given by the statutes, holding that the only method for reviewing the proceedings was by certiorari. Mitchell v. Directors of School Dist. No. 15, ante p. 50; Acree v. Patterson, ante p. 188.

Appellants’ only other insistence for reversal is that the court committed reversible error in upholding the order of the county board of education in transferring the four white children into District No. 61. Prior to the transfer of the white children into the district, the number of white children therein was not sufficient to require the establishment of a separate school for the whites. The transfer of the four white children into the district had the effect of making the requisite number of white children to compel the establishment of a separate-school for their education. Appellants’ contention is that the transfer of the four white children into the district is illegal because it is apparent that it was done for the purpose of augmenting the number of white children so as to require the directors to -maintain a separate school for their education. In other words, that it is illegal to transfer children from one district into another where there is no established school which they can attend. We deem it unnecessary to decide the question presented by the argument, as the facts in the instant case show that the four children transferred into District No. 61 from' another district were bona, fide residents of District No. 61, and had theretofore been transferred into another district for school purposes because there were not sufficient white children in District No. 61 to require the board to maintain a separate school for their education. The real purpose of the transfer was to return four white children to their home district, where they had a right to be educated in a separate school for whites, as soon as there were enough white children resident therein to command the maintenance of a separate school for their education. We are unable to find anything in the statutes which supports the contention of appellants or militates against the judgment of the lower court.

The judgment is therefore affirmed..


text:
    Grinnell Company, Inc., v. Brewer.
    Opinion delivered May 8, 1922.
    1. Appeal and error — finality of decree. — Where, in a receivership proceeding against an insolvent corporation, an injunction against the enforcement of an execution was granted, and the execution creditor intervened and moved to dissolve the injunction, the decree refusing to dissolve it was final on that branch of the case and appealable, though the proceeding in insolvency had not been finally adjudicated.
    2. Corporations — judgment against insolvent corporation. — Under Crawford & Moses’ Dig., § 1800, relative to preferences by insolvent corporations, a judgment and execution may be set aside on complaint made within 90 days, though the judgment was obtained and the. execution issued before the corporation was declared insolvent, and was not in contemplation of insolvency.
    Appeal from Phillips 'Chancery Court; A. L. Hutchins, Chancellor;
    affirmed.

      A. D. Whitehead, for appellant.
    Before the enactment of sections 1798 to 1801, C. & M. Dig., bona fide preferences in favor of creditors were valid, 57 Ark. 22; and since those sections were enacted the preferences that are inhibited are made in contemplation of insolvency. 114 Ark. 31.
    Meaning of the term “in contemplation of insolvency.” 114 Ark. 31; 22 Oye. p. 1290.
    Receiver took the property subject to all the equities existing against it in the hands of the debtor. 97 Ark. 536. The judgment was taken against the debtor in good faith (98 Ark. 298), and does not operate as a preference within the meaning of the statute. 98 W. S. 512; 59 Ark. 582. The statute does not apply to a seizure of property to enforce execution. 89 Ark. 213; 87 Ark. 521; 75 Me. 396; 6 H. & J. 454; 53 Vt. 447.
    The judgment lien, 47 Conn. 408; 146 W. S. 499; 91 Tenn. 336; 114 Mo. 651. Object of insolvency statutes, 98 W. S. 512.

      Jacob Fink, for appellee.
    The appeal should be dismissed because it is premature. 89 Ark. 162. The right of appeal is limited to final judgments and decrees, 39 Ark. 82; 52 Ark. 227; but it may be prosecuted where a distinct and severable branch of the cause is finally determined. 23 Ark. 421; 25 Ark. 129. The order is not final unless it concludes the rights of the parties. 5 Ark. 398; Id. 409; 100 Ark. 500.
    The statute, except as to instances mentioned therein, contemplates an equal division of the insolvent’s property among its creditors. 67 Ark. 11. A conveyance that has the effect of giving a preference is void as to other creditors. 124 Ark. 431. The receiver takes the property subject to contract liens, and not execution liens, 97 Ark. 537; Id. 61. It is only in the absence of a statute that a levy by attachment or execution creates an interest superior to that of an assignee in insolvency. 122 Cal. 632; 117 Cal. 473; 99 Cal. 579.
   Humphreys, J.

This is an appeal from a decree of the Phillips Chancery Court refusing to set aside an injunction against appellant prohibiting it from enforcing an execution and levy upon the property of the Thale Mill & Box Company, obtained by appellant against said company in the circuit court of said county on the 25th day of October, 1921. O. C. Brewer, the appellee herein, was appointed receiver of the said Thale Mill & Box Company on November 28, 1921, upon the application of C. S. Fitzpatrick, one of the stockholders in said Thale Mill & Box Company, in a receivership proceeding under sections 1798 to 1801, inclusive, of Crawford & Moses’ Digest. The petition for the receivership alleged, in substance, that the Thale Mill & Box Company was unable to pay its indebtedness and has ceased to function; that its stockholders and directors had adopted a resolution directing that the affairs of the corporation be placed in the hands of a receiver; that in October, 1921, appellant had obtained a judgment against the insolvent corporation and procured an execution and levied the same upon its property. The prayer of the petition was that all the property of the defunct concern be placed in the hands of a receiver and converted into money for the payment of its creditors, that all creditors be required to file their claims within the time provided by the statute, and that appellant be restrained from enforcing its execution and levy against the property of the insolvent corporation.

The Thale Mill & Box Company, through its president and secretary, filed an- answer admitting its insolvency, and joined in the prayer of the petition of C. S. Patrick for a distribution of the assets of said company among its creditors. Thereupon the court appointed O. C. Brewer receiver of said insolvent corporation and directed him to take charge of its assets, and to distribute the proceeds thereof among the creditors who filed their claims with the receiver within ninety days, as provided by the insolvency act aforesaid. The court also enjoined appellant from enforcing its execution and levy against the property of the insolvent corporation. On the following day appellant filed a motion praying that the injunction against it be dissolved and that it be permitted to proceed to enforce its execution and levy against the property of said corporation. The court entered a decree refusing to dissolve the injunction, from -which is this appeal.

Appellee has filed a motion in this court to dismiss the appeal upon the ground that the decree refusing to dissolve the injunction was interlocutory and not final. The decree of injunction, which the court refused to set aside, in effect finally decided the title and right to the possession of the property which had been levied upon under appellant’s execution as between the receiver of the defunct corporation and appellant. It is true the proceeding in insolvency had not been finally adjudicated, but the title and the right to the possession of the property in question was a separate branch of the case. The appellant claimed it under an execution lien, and the receiver 'by virtue of the proceeding’s in insolvency. Appellant intervened in the suit for it, and the issue joined upon the intervention was adjudicated against him. The decree upon this distinct and several branch of the case was final and appealable. Davie v. Davie, 52 Ark. 224; Seitz v. Meriwether, 114 Ark. 289.

Appellant’s contention for reversal is that its judgment was obtained and execution issued thereon before the Thale Mill & Box Company was declared an insolvent corporation and was not acquired in contemplation of the insolvency of said corporation, and for that reason its lien is prior and paramount to the claim of the other creditors of said corporation. While there is nothing in the evidence to indicate that appellant acquired its judgment and execution lien in contemplation of the insolvency of said corporation, yet the judgment was obtained and the execu+ion thereon issued and levied -within ninety days before the proceeding in insolvency was instituted. Appellant bases its contention upon section 1800 of Crawford & Moses’ Digest, which it interprets to mean that only r>references obtained bv judgment, execution and lew -acquired in contemplation of insolvency shall be set aside at the instance of proper parties within ninety days after same were obtained. This is not the correct construction of section 1800. It was otherwise interpreted by this court in the case of Miners’ & Citizens’ Bank v. Maxine Mining Co., 150 Ark. 653. The court said in that case: “Section 1800 (referring to Crawford & Moses’ Digest) provides that every preference obtained or sought to be obtained by any creditor of such corporation, whether by attachment, confession of judgment, or otherwise, shall be set aside by the chancery court, and such creditor shall be required to relinquish his preference and accept his pro rata share in the distribution of the assets of such corporation, provided that no such preference shall be set aside unless complaint thereof be made within ninety days after the same is given or sought to be obtained.”

The decree is therefore affirmed.


text:
    Franklin v. State.
    Opinion delivered May 8, 1922.
    1. Homicide — indictment.—Where a murder resulted from several acts consistent with each other, all the acts may be charged in the conjunctive and embraced in one count.
    2. Homicide — election between methods of killing belied on.— Where an indictment for murder charged a killing by shooting and striking deceased, and the evidence tended to show that either wound would have been fatal, it was not error to refuse to require the State to elect whether it would prosecute for murder in shooting or in striking the deceased.
    8. Continuance — absence of material witness. — It was not error to refuse a continuance for the absence of a material witness where the witness was out of the State and not amenable to its process, and no showing was made that he would return to the State within a reasonable time, and no effort made to procure his deposition.
    4. Criminal law — instruction as to reaching verdict. — Where a jury had deliberated for several days, an instruction admonishing the jury as to the importance of deciding the case, and directing them to go back into the jury room and consider their, verdict further was not erroneous.

      5. Criminal law — demonstrative evidence. — Where defendant -in a murder case called for deceased’s hat and introduced it in evidence, he was not entitled to object to its introduction because it had been in possession of deceased’s family and had been tampered with after the killing by being tom in several places.
    6. Criminal law — demonstrative evidence. — Where the bullet which killed deceased was extracted in a post mortem examination and sealed and delivered to the circuit clerk, the identification of such bullet was sufficient to justify its introduction.
    7. Criminal law — necessity of motion for new trial. — Assignments of error not appearing on the face of the record will not be considered unless the alleged errors are preserved in the motion for new trial.
    8. Homicide — evidence.—Evidence held to justify a finding of involuntary manslaughter.
    Appeal from Ashley Circuit Court; Turner Butter, Judge;
    affirmed.

      G. P. George, Frank Strangways and U. J. Gone, for appellant.

      J. 8. TJttey, Attorney General, Elbert Godwin and Wm. T. Hammock, Assistants, for appellee.
   Humphreys, J.

Appellant was indicted for the crime of murder in the first degree in the Ashley Circuit Court at the October term, 1921, for killing Thomas N. Mann in said county on or about the 25th day of December, 1918. At the January, 1922, term of staid court appellant was tried upon the indictment and convicted of involuntary manslaughter, his punishment being fixed at imprisonment in the State Penitentiary for a period of one year. From the judgment of conviction an appeal has been duly prosecuted to this court.

Omitting formal parts, the indictment is as follows: “The said B.E.L.Franklin, in the county and State aforesaid, on or about the 25th day of December, 1918, did unlawfully, wilfully, feloniously and of his malice aforethought, and after deliberation and premeditation, kill and murder one Thomas N. Mann, then and there being, by striking him, the said Thomas N. Mann, on the head with a certain blunt instrument, a more particular description of which, is to the grand jury unknown, the said blunt instrument being then and there had and held in the hands of him, the said R. E. L. Franklin, and by shooting him, the said Thomas N. Mann, with a certain gun which the said R. E. L. Frankin then and there had and held in his hands, the said gun being then and there loaded with gunpowder and leaden bullets, contrary to the statutes in such oases made and provided,” etc.

Appellant contends for a reversal of the judgment upon the ground embraced in his demurrer, filed below, to the effect that the crime of murder in the first degree was not sufficiently charged in the indictment. Under our law murder is a single crime and must be so charged, but if committed in different modes or by different means it is permissible to allege the different modes or means in the alternative. Crawford & Moses’ Digest, § 3015. This statute, in so far as it relates to the method of killing, has reference to modes or means inconsistent with each other. For example, it means that the modes and means by which a single murder was committed may be charged in the alternative in the same indictment. In other words, the same murder may be charged in the same indictment either by poisoning or by force in the alternative, the means or modes being inconsistent. There is nothing in the statute indicating that this could not be done in one count, nor is there anything in the statute indicating that if the modes or methods by which the murder was accomplished were consistent they could not be alleged in the conjunctive. The trend of appellant’s argument is that, because the modes or methods appear to have been charged in the indictment in the conjunctive, two offenses are charged. The indictment only charges one offense, committed in two different modes, one by-striking, the other by shooting. It is true the methods are charged in the conjunctive, but there is nothing in our statutes prohibiting them being charged in the conjunctive if consistent. In other words, if the murder resulted from several acts consistent with each other, all the acts might be charged in the conjunctive and embraced in one count. Mr. Bishop, in his work on New Criminal Procedure, vol. 1, sec. 434, enunciates the doctrine in the following language: ‘ ‘ Some single offenses are of a nature to be committed by many means, or in one or another of several varying ways. Thereupon a count is not double which charges as many means as the pleader chooses, if not repugnant; and, at the trial, it will be established by proof of its commission by any one of them. ’ ’ The same rule of procedure is announced in Joyce on Indictments, § 401, and in the Standard Enc. of Procedure, vol. 12, p. 516. The trial court did not err in overruling the demurrer to the indictment.

Appellant’s next insistence for reversal is that the court erred in overruling his motion to require the State to elect which mode or method of killing it would rely upon for a conviction. The proof on the part of the State tended to show that the murder was committed both by shooting and striking the deceased. When found, the top of deceased’s head was crushed in as if a blow from a bludgeon, and there was a gunshot wound from a bullet which entered above and back of his right ear and lodged in the skull on the opposite side of the head. The evidence also showed that either wound would have produced instantaneous death. The authorities cited above are to the effect that proof of any one of the alleged methods of committing an offense, when not repugnant, is sufficient to sustain the charge. Directly upon this point, Mr. Wharton, in his work on Homicide, at page 563, uses the following language: “Where the means by which the murder was committed are uncertain, its commission by different means may be charged in a count of the information, and proof of any one will sustain the allegation, but the means so charged in the same count must not be repugnant. And an allegation of killing by shooting, and by cutting, bruising, and striking, charges that the accused inflicted two mortal wounds upon the deceased, one by shooting, and one by striking, and is not bad for repugnancy.’’’ The court did not err in overruling; armellant’s motion to require the State to elect whether it would prosecute appellant for the murder in shooting or whether by striking the deceased.

Appellant’s next insistence for reversal is that the court erred in overruling his motion for a continuance on account of the absence of Henry Bay Croswell, who, if present, would testify that he appeared on the scene of the tragedy soon after the killing and s;aw the sheriff, Dr. W. M. Chavis, extract the shells from deceased ’a pistol, which was picked up near the body; that one of the shells was empty and thrown on the ground by the sheriff; that witness picked up and saved the' empty shell, and may have it yet; that the shell was a .32 Winchester. The sheriff had testified that the gun belonging to the deceased would fire a .32 caliber Winchester, although a .38 caliber 'Smith •& Wesson pistol; and another witness had testified that the deceased usually ‘Carried a pistol loaded partly with .32 caliber Winchester cartridges. Appellant’s theory was that the deceased, in a drunken frenzy, while playing with his own gun, accidentally killed himself, and that the crashing of the bullet through the head fractured the skull on top. Based upon this theory, there could be no question but what the evidence of the absent witness would have been material, as tending to support the theory of an accidental killing. It appears from the record, however, that the cause was continued from the August, 1921, term of the court until the following January term thereof; that at the time of the continuance it was known that the witness was in the military service in the Canal Zone, and that, in the interim, no effort was made to procure the.deposition of the witness, and no effort to obtain the presence of the witness except to mail a subpoena for him to the Adjutant General of the United States army at Washington, D. C. Appellant failed to show that he used diligence to obtain the testimony or presence of the witness. The witness was out of the jurisdiction of the court and not amenable to its processes, and no showing was made that he would return to the State within a reasonable time. The court did not abuse its discretion in refusing to continue the case for the attendance of the witness. Puckett v. State, 71 Ark. 62; Turner v. State, 135 Ark. 381; Metropolitan Cas. Ins. Co. v. Chambers, 136 Ark. 84.

Appellant’s next insistence for reversal is that the court erred in admonishing the jury, after several days’ deliberation, concerning the importance of coming to an agreement. The admonition complained of is as follows: “I would not ask any man on this jury to violate his conscience, and yet it has been my observation and experience that, although men partly disagree and don’t agree for a time, some taking one question one way and others taking it the other,yet, after taking into consideration all the circumstances, they are finally able to agree. I don’t have to tell you that you are men of common-sense, and I don’t have to tell you that this is a case that has consumed a great lot of time and energy. You saw the great number of witnesses that were brought here, and you heard the testimony of those witnesses, and you know the importance of deciding this ease, that this case be decided. It would be a bad thing if a verdict were not reached now; some jury will have to try this cause and settle it. There is no wmy that I know of, and there is no other way known to law, by which it can be decided. Considering all those things, gentlemen, I will have to ask you to go back into your jury room and consider of your verdict further.”

We find nothing in the admonition indicating the court’s opinion upon any disputed fact in the ease, or upon the guilt or innocence of appellant, nor anything indicating that jurors should yield their honest convictions in order to reach a verdict. The admonition did not transcend the license accorded trial judges in Johnson v. State, 60 Ark. 45; St. L. I. M. & S. R. Co. v. Carter, 111 Ark. 272; Reed v. Rogers, 134 Ark. 528.

Appellant’s next insistence for reversal is that the court erred in permitting the hat of deceased and the bullets found in deceased’s pistol and in his head to be introduced in evidence. The objection made to the introduction of the hat was that it had remained in possession of the family of the deceased and had been tampered with after the killing. Appellant himself called for the hat, and it was introduced at his instance. After being introduced, it was discovered that it not only had a bullet hole in it, but was tom in several places. After having introduced the hat, appellant was in no position to have it excluded. It was his privilege to prove that it had been tom after the death of deceased and while in the possession of the family of the deceased, if he chose to do so, but not his privilege .to have it excluded over the objection of the State after requesting and obtaining its introduction himself. The objection made to the introduction of the bullets is that they were not properly identified. There was a post mortem, examination of the deceased, and the bullet, which entered his head on the right side and lodged in the left side, was extracted. This bullet, as well as some Smith & "Wesson .38 caliber bullets, were weighed by Dr. George, and the weights taken down, which weights, together with the bullets, were sealed in an envelope and placed in charge of the circuit clerk, Where they remained until introduced and identified by Dr. George. We think the identification of the bullets sufficiently definite to justify their introduction.

The next insistence of appellant is that the court erred in giving and refusing certain instructions to the jury. None of the objections and exceptions to the instructions were preserved in appellant’s motion for a new trial, except to appellee’s requested instruction No. 1, which was a correct definition of murder. It was as follows: “Murder is the unlawful killing of a human being in the peace of the State with malice aforethought, either expressed or implied.” Under the repeated rulings of this court, assignments of error not appearing on the face of the record will not be considered unless the alleged errors are preserved in the motion for a new trial. Thielman v. Reinsch, 103 Ark. 307; Thomas v. Jackson. 105 Ark. 353; Railway Ice Co. v. Howell, 117 Ark. 198; Sublett v. Sublett, 133 Ark. 196. Under the record presented we are not called upon to determine whether the court erred in giving or refusing instructions.

Appellant’s last insistence for reversal is that the evidence is insufficient to support the verdict of the jury and judgment of the court. Deceased was killed in the afternoon of December 25, 1918, on the front walk between appellant’s house and gate. The testimony introduced on the part of the State tended to show that deceased had been invited to take dinner with appellant, who stated that he had plenty of eggnog, but that he took dinner with his sister, Mrs. J. Q. Pilgrim, and remained there until about 3 o’clock, when he started home in the direction of Hamburg. • In going toward Hamburg he had to pass appellant’s house. The sheriff was called between 4 and 5 o’clock by appellant’s wife, who requested him to ask the deceased’s father to come and get him, as he was in a bad fix. In a short time thereafter the sheriff was notified to come himself, and when he arrived he found the dead body of the deceased on the walk with a bullet hole in his head; his pistol was near his side, and his hat on the ground near by. His pistol was a .38 caliber Smith & Wesson, and one chamber had been fired. Appellant’s statement concerning the killing to different parties was somewhat conflicting. After' the burial of deceased, suspicion was aroused against appellant, and the body was disinterred and a post mortem examination made. It was discovered that a bullet had entered on the right side of the head a little above and back of the right ear and lodged on-the opposite side in front of the left ear'. The bullet was about the same weight of a .32 caliber Winchester bullet. It was also discovered that the top part of his head, towards the back, had been fractured as if done with a blunt instrument. Appellant owned a .32 caliber Winchester rifle. Deceased’s coat sleeve was torn, and when his hat was introduced in evidence there were several torn places in it. Later the grand jury investigated the killing and returned an indictment against appellant. At the time the grand jury was conducting the investigation appellant was serving on the petit jury. When a warrant was issued upon the indictment, appellant could not be found, having disappeared. He went to Greenwood, S. C., where he lived until he was found and arrested, under the name of Robert E. Lee. The State’s theory, based upon the facts just detailed, was that appellant killed the deceased in a drunken brawl by first shooting him with a .32 caliber Winchester rifle and then striking him in the top of the head with some blunt instrument. Appellant’s theory was that the deceased shot himself with his own pistol while playing with it, and that the shattering of the skull in the top of the head was done by the bullet as it ranged upward through the head. It is unnecessary to set out the facts and circumstances introduced by appellant in support of this theory, as the judgment must be -affirmed if there is any substantial evidence in the record to support the verdict of the jury. It was next to impossible for the two wounds, as discovered in the deceased’s head, to have been self-inflicted. We think the most reasonable inference to be drawn from the character of the two wounds is that they were not self-inflicted, but were inflicted by another. After drawing this inference, there is ample testimony in the record to connect appellant with the crime. The fact that he possessed a .32 caliber Winchester rifle tends strongly to connect him with the crime, as the bullet extracted from the deceased’s head was about the same weight of a .32 Winchester bullet. Appellant’s conflicting statements, and the fact that lie fled -and lived under an assumed name until arrested, are circumstances tending to connect him with the crime. The evidence was legally sufficient to sustain the verdict and judgment.

No error appearing, the judgment is affirmed.


author: McCulloch, C. J. McCulloch, C. J.

text:
    Brown v. Wilkes.
    Opinion delivered May 15, 1922.
    1. Assignments for benefit of creditors — general assignment.— A conveyance to trustees for the payment of the grantor’s debts, without a defeasance in the event of payment by the grantor, constituted a general assignment for the benefit of creditors.
    2. Assignments for benefit of creditors — validity.—A general assignment for the benefit of creditors, purporting to authorize the trustees to carry out the assignor’s contract and to make new contracts and to incur expenses not warranted under our statute, and providing that all the property should be sold at the end of 14 months, and the surplus returned to the grantor, was void as being inconsistent' with Crawford & Moses’ Dig., §§ 486-493.
    3. Assignments for benefit of creditors — effect of invalidity.— Under Crawford & Moses’ Dig., § 489, where an assignment for the benefit of creditors is declared void, it will be treated as a general assignment for the benefit of creditors pro rata.

    4. Assignments for benefit of creditors — remedy of creditor.— A creditor seeking to realize on his claim against an assignor must resort to the remedy afforded by the statute relating to assignments for creditors.
    5. Assignments for benefit of creditors — right of assignees to recover property. — Where the “trustees” in a deed which was in effect a general assignment for creditors have not taken possession of the property, made an inventory or given bond as required by Crawford & Moses’ Dig., § 486, they cannot recover the debtor’s property which was taken on execution in a suit by a creditor.
    6. Assignments for benefit of creditors — judgment against assignees. — Where assignees brought suit as individuals to recover possession of the property assigned, and ’set forth the assignment as the basis of their claim, a judgment against them as individuals, and not as assignees, was proper.
    7. Appeal and error — issues presented. — An appellate court will not take notice of its judgment in another cause, which was not pleaded below.
    8. Appeal and error — modification of judgment. — Where the assignees in a general assignment for the benefit of creditors have not qualified as such after an unsuccessful appeal from a judg-. ment in an action by them against a sheriff to recover possession of the property assigned, an order in an action at law preserving their right to maintain a suit in equity was unnecessary, the possession of the sheriff not putting the property beyond the jurisdiction of the chancery court.
    Appeal from Woodruff Circuit Court; J. M. Jackson, Judge;
    affirmed.

      Hughes & Hughes, for appellants.
    The evidence was not sufficient to support the judgment.
    If the instrument in question was a mortgage, the personal propertv was not subject to execution. 94 Ark. 296.
    The instrument in question was an assignment for the benefit of creditors. 52 Ark. 43.
    The court erred in adjudging that appellees were entitled to 'Satisfaction out of the trust property in priority to other creditors. C. & M. Dig., § 489. The policy of the statute is to assure equality to all creditors. 83 Ark. 182; 133 Ark. 554.

      Bogle & Sharp, for appellees.
    The evidence was sufficient to sustain the judgment of the court.
    In any action for the recovery of specific personal property, the jury must assess its value, and also the damages for the taking and detention of same. C. & M. Dig., sec. 8654; 104 Ark. .375.
    In the absence of a demand for a separate valuation before the verdict or of objection to the verdict, the presumption is that the right is waived. 53 Ark. 411; 26 Kan. 320; 49 Ala. 134.
    Objections to deviations from the strict line of procedure which do not vitiate the judgment must be made in apt time. 51 Ark. 126; 51 Ark. 130; 1 Thompson’s Trials, sec. 113.
    The judgment of a court of competent jurisdiction is presumed to be right, unless the record of the court will make it appear affirmatively that it is erroneous. 124 Ark. 388; 44 Ark. 744; 94 Ark. 115.

      Replevin, cannot be maintained against an officer who has the custody and possession of property under a valid execution. 4 Ark. 525; 8 Ark. 563; 11 Ark. 658; 94 Ark. 384.
    Replevin cannot be successfully maintained where the title rests on a void instrument. 10 Ark. 53; 19 Ark. 659; 26 Ark. 33; 69 Ark. 11.

      Mathis & Trice, for appellees.
    A mortgage is the conveyance of an estate or a pledge of property as security for the payment of money or the performance of some act, and conditioned to become void upon such payment or performance. An assignment is an absolute conveyance of title for the purpose of raising funds to pay the debts of the grantor. 2 Ruling Case Law, p. 662.
    Where an instrument clearly indicates on its face that it is executed, not to secure bona fide creditors, but' to enable the debtor to carry on his business under cover of 'another’s name, the instrument is void. 152 U. S. 527. No general rule can be established by which conveyances can certainly be adjudged to be fraudulent or not. 22 Ark. 184; 53 N. Y. Supp. 513; 58 N. E. 773; 49 N. Y. Supp. 111.
   McCulloch, C. J.

Certain creditors of J. A. Burt recovered separate judgments against him in the circuit court of Woodruff County and caused executions to be issued on the judgments and delivered to appellee, as sheriff of the county, who levied the writs on a lot of chattels as the property of Burt.

Appellants, R. Gf. Brown and R. T. H. Chambers, instituted the present action against the sheriff to recover possession of the property seized under execution, and they assert title to the property under a deed executed to them by Burt.

The property described in the deed executed by Burt to appellants is mentioned as road construction equipment, and consists of sixty-eight horses and mules, a lot of wagons, tractors, scrapers, shovels, crane, truck, graders, steam-rollers, and other equipment and tools used in road construction work. The names of Burt’s creditors are mentioned in the deed, and the amount of the indebtedness, aggregating about $70,000, and there is a general provision in the deed that if there are found to be other creditors who have been omitted they shall be treated as beneficiaries under the deed.

Appellants are mentioned in the deed as trustees, and the instrument is designated by name as a mortgage. The deed contains the following clauses:

“Now, therefore, said mortgagor does hereby bargain, sell, convey, assign, transfer and deliver unto the trustees, their successors and assigns, his entire interest in all the described property, including all the road equipment aforesaid; all his right to collect retained percentage from any and all of said road improvement districts, and to all sums of money that may be due him upon his contracts with any and all of said road districts now or upon completion of the work, excepting, however, such part of the retained percentage in Road Improvement District No. 7, White County, as may be necessary to protect R. T. H. Chambers as indorser on notes of the mortgagor for $15,000, which retained percentage has already been assigned bo him for that purpose.

“In trust, however, to collect the said debts due to the mortgagor, or to become due, to cause all of said contracts to be completed and performed as far as the same remains yet to be performed by the mortgagor, to incur whatever expense is necessary in employing agents for that purpose, or otherwise, to collect the.proceeds thereof, to sublet said contracts, or any of them, or any part thereof, to sell and dispose (after the completion of the work) of all of said road equipment and material, and, after paying the expense of completing said contracts, to pay the remainder to the creditors of the mortgagor above-named pro rata.”

“The said trustees are fully authorized and empowered bv the mortgagor to execute any contract, or contracts, assignments, releases, vouchers, and any and all other papers, contracts, or vouchers, necessary to be executed in connection with the carrying out of said contract. They are authorized to receive and receipt for all moneys due the mortgagor under any and all of said contracts, or under any contract the mortgagor has heretofore made in respect of said operation, or any of them, and to receipt for the same, and their receipt shall be a full acquittance in the same manner as if signed by the mortgagor. And said trustee shall have the' power also to compromise claims and to release, stipulate, or otherwise' dispose of any controversies connected with said contracts, or any of them, or any part thereof, to purchase and contract for supplies, and to act as fully in the matter as the mortgagor might do if personally present.

“All sums of money due to the mortgagor in Arkansas under said contracts, or otherwise, shall be paid to said trustees. As soon as said trustees shall have collected a sufficient amount to pay ten (10%) per cent, or more of the debts hereby secured, a distribution shall be made by them of the moneys then on hand, and at every period thereafter when such accumulations amount to as much as 10% additional, a like distribution shall be made until all of said debts shall have been paid in full, or the properties hereby conveyed are fully liquidated.

“As fast as any contract shall have been completed or fully sublet to other parties, the said trustees shall sell and dispose at public or private sale any such part of the equipment and material belonging to the mortgagors as shall have been employed in that particular operation, and which has not been included in the subletting contract.”

There is a clause near the end of the deed which provides, in substance, that at the expiration of fourteen months the trustees shall proceed to terminate the trust and sell all of the remainder of the property not otherwise disposed of, and that if, after paying all of the debts, there be a surplus, it shall be returned to “the mortgagor, his executors, administrator^ .or assigns.”

The trial of the cause resulted in a verdict in favor of appellee.

The bill of exceptions recites that the testimony adduced at the trial was 'confined to the record evidence of the judgments against Burt, the writs issued thereunder, and evidence of the value of the property seized by the sheriff, and the aforesaid deed under which appellants claim title.

The only question presented for our decision, is, whether or' not the evidence is sufficient to sustain the verdict.

Appellants were the plaintiffs below, and the burden was upon them to establish their right to recover possession of the property, and they rely solely upon the instrument executed to them by Burt, which is set forth in the bill of exceptions. The question of sufficiency of the evidence calls for an interpretation of the instrument.

While the language of the instrument characterizes it as a mortgage, it is, in fact, not that kind of an instrument, for it does not contain a defeasance clause, which is one of the essentials of a mortgage. The instrument is, in effect, a conveyance to trustees for the payment of a debt to creditors. It is an absolute appropriation of the property for that purpose, -without a defeasance, in the event of the payment of the debts by the grantor, and it therefore constitutes a general assignment for the benefit of creditors. Turner v. Watkins, 31 Ark. 429; Richmond v. Mississippi Mills, 52 Ark. 30; State v. Dupuy, 52 Ark. 48; Fecheimer v. Robertson, 53 Ark. 101.

The deed of assignment is, however, in conflict with the statutes of this State regulating general assignments for the benefit of creditors, and is therefore void. Crawford & Moses’ Digest, clra-p. IX. In the deed the grantor appropriated the property to the payment of all of his creditors, but he went further than that and undertook to clothe the trustees with authority to carry out his contract and to make new contracts with reference thereto and to incur expenses not warranted under our statute. It also prescribed a limitation upon the disposition of the property, which is not authorized by statute. Other reasons might be given why the deed is ■rendered void, but these two features of the deed are sufficient for that purpose.

It does not follow, however, that because the deed is void it is rendered ineffectual as a general assignment for the benefit of creditors. On the contrary, the statute (Crawford & Moses’ Digest, sec. 489) provides that if such an assignment be declared void, the same shall be treated as a general assignment for the benefit of creditors pro rata, and that “said property shall be disposed of and distributed for their benefit under the orders and direction of said court, and the assignee shall become subject to the control and direction of said chancery court in the same manner as if he had been appointed a receiver to take charge of said fund in court. ’ ’

We have given effect to this provision by holding that under a void assignment general creditors have no right to seize the property under writs of garnishment, attachment, or execution. Moore v. Goodbar, 66 Ark. 161; Phelps v. Wyler, 67 Ark. 97; Tapp v. Williams, 83 Ark. 182; State National Bank v. Wheeler-Motter Merc. Co. 104 Ark. 222.

The creditors must resort to the remedy afforded by the statute, but the present case is an instance where appellants are the plaintiffs seeking to recover possession of the property in controversy, and they must rely upon the strength of their own title, and the burden rests upon them to prove their own case.

There is no evidence tending to show that appellants have ever taken possession of the property, or that they have made an inventory or given bond as required by the terms of the statute. Crawford & Moses’ Digest. 486.

In Phelps v. Wyler, supra, Judge Battle, speaking for the court, with reference to the provisions of the statute now under consideration, said:

“The assignee is then required to take immediate possession of the property, and to file an inventory of the same and a bond with the clerk of the court having equity jurisdiction within ten days thereafter. He is impliedly authorized to enforce such right by legal proceedings, if necessary. In the event the assignment shall be declared void, the title and right to possession shall remain in him in his fiduciary capacity, and the assignment becomes a general assignment for the benefit of all the creditors of the assignor pro rata, and the assignee becomes subject to the control and direction of the chancery court in the same manner he would be had he been appointed a receiver to take charge of the property. No creditor can defeat his title.' He cannot, in the discharge of his duties, remain passive, and wait until the assignor delivers possession, but he is required to assert his right to the same immediately, and he is liable for the damages occasioned by his failure to do so.”

That case, however, was one where the creditors sued in chancery court to set aside the deed of assignment, or to purge it of alleged fraudulent debts. The trustee was not, as in the present case, the plaintiff seeking to obtain possession without having complied with the terms of the statute with respect to giving bond. The two cases are thus distinguished, and we hold that appellants are not entitled to recover possession under a deed containing terms in conflict with the statute on the subject.

Appellants, as the trustees, or any of the creditors to be benefited by the assignment, had a remedy in the chancery court for the administration of the assignment and the distribution of the proceeds of the assigned property, but, as before stated, appellants could not recover possession under the deed unless the statute had been complied with.

Finally, it is contended that judgment is erroneous as being against appellants personally instead of against them as trustees.

Appellants sued as individuals, but set forth the deeds of assignment as the basis of their claim of title to the property in controversy. The deed was mere evidence of title, and not their authority to maintain a suit, and the judgment, therefore, was properly against them as individuals for the return of the property.

Affirmed.

OPINION ON REHEARING.'

McCulloch, C. J.

Appellants now ask that the judgment of this court be modified in two particulars: First, that the judgment of Henderson against Burt be excluded from the alternative judgment for recovery of the value of the property in controversy, for the reason that the Henderson judgment has been reversed 'by this court since the judgment in the present case was rendered •below; second, that an order be made preserving the right of appellants, as trustees under the void assignment, and also the right of creditors of Burt, to maintain a suit in chancery under the statute referred to in the original opinion for the distribution of the assigned property.

Attention is called now, for the first time, to the fact that the Henderson judgment was reversed by this court, also that the jurisdiction of the chancery court has already been invoked for relief in the administration of the void assignment.

It is sufficient answer to the first request to say that we cannot take notice of the judgment of this court in another cause. The judgment should have been pleaded below (Gibson v. Buckner, 65 Ark. 84; Hall v. Cole, 71 Ark. 601; Murphy v. Citizens Bank, 82 Ark. 131); or further steps must be there taken to suspend enforcement of the reversed judgment.

The answer to the second request is that the right to maintain an action in chancery under the statute is unaffected by the judgment in the present case. It is within the right of appellants to satisfy the judgment appealed from by returning the property to the sheriff, so as to escape the effect of the alternative judgment, and the possession of that officer will not put the property beyond the jurisdiction of the chancery court. That is, however, a matter of original jurisdiction of the chancery court, and an order here in relation to the matter is not appropriate.

The motion to modify the judgment of this court is therefore denied.


author: Hart, J.

text:
    Tallman v. State.
    Opinion delivered May 15, 1922.
    1. Criminal law — change of venue. — Where, on a petition for a change of venue, two witnesses swore that they were acquainted with inhabitants in all parts of the district and had heard a great many of them talk about the case, but, on cross-examination, they stated that they paid no attention to the townships from which such inhabitants came, and did not remember where they resided, there was no abuse of discretion in denying the motion.
    2. Criminal law — reasons for denying change of venue. — On hearing a motion for change of venue, notwithstanding the court improperly asked the supporting witnesses if they believed that it would be impossible to find 12 men in the district who would not deliberately perjure themselves in order to sit on a jury, the reasons of the trial judge, being no part of the judgment, are not open to attack, the only question being whether the court erred in denying the motion.
    3. . Criminal law — denial of change of venue. — Where the record showed that the judgment denying defendant’s motion for a change of venue was based on legal testimony, it is not subject to reversal.
    4. Animals — conviction for malicious mischief. — In a prosecution for malicious mischief, charged to have been committed by killing-a dog belonging to another, evidence held to warrant a conviction.
    5. Criminal law — multiplication of instructions. — In a prosecution for malicious mischief, .it was not error to refuse an in-'’ struction merely multiplying the instructions given.

      6. Animals — instruction as to treble damages. — In a prosecution for maliciously killing a dog, -where the jury were instructed, if they found defendant guilty, to find the value of the dog, refusal to instruct that treble damages would be assessed under the statute was not error, the jury having nothing to do with the penalty.
    Appeal from Arkansas Circuit Court, Northern District, George W. Clark, Judge;
    -affirmed.

      Geo. C. Lewis, for appellant.

      J. S. Utley, Attorney General, Elbert Godwin and Wm. T. Hammock, Assistants, for appellee.
   Hart, J.

Elliott Tallman prosecutes this appeal to reverse a judgment of conviction against him of malicious mischief charged to have been committed by killing a dog belonging to Roger Crowe.

This is the second appeal of this case, and the opinion on the former appeal is reported in 151 Ark. 438, under the style of Tallman v. State.

Upon the remand of the case for a new trial, Tail-man filed a petition for a change of venue, supported by the affidavits of two witnesses in the manner prescribed by .the statute. Both of the witnesses testified that they were well acquainted with the inhabitants in all parts of the northern district of Arkansas County, and had heard a great many of them talk about the case. Each of the affiants testified that the minds of the inhabitants of said district and county were so prejudiced against Tail-man that he could not obtain a fair and impartial trial therein.

On cross-examination each of the affiants stated that, while he had talked with a good many of the inhabitants of said district and county, he did not pay any-attention, to the township or.townships that such inhabitants came from, -and did not remember where they resided. It may have been that the persons with whom the affiants talked lived in one part of the district and that the affiants did not know whether or not the minds of the inhabitants of the remaining part of the district were so prejudiced against Tallman that he could not get a fair and impartial trial therein.

The court found this issue against the defendant, and made an order denying his motion for a change of venue. There was no error in this respect. The trial court has a large discretion in a matter of this kind, and its judgment refusing a change of vénue will not be disturbed unless there is an abuse of the court’s discretion. The court'might have found from the examination of the supporting witnesses that they did not have sufficient knowledge of the state of mind of the inhabitants throughout the whole northern district of Arkansas County to know whether the defendant could obtain a fair and impartial trial therein and were not credible persons within the meaning of the statute. Dewein v. State, 120 Ark. 302, and Jordan v. State, 141 Ark. 504.

But it is insisted that the judgment of the court denying the defendant a change of venue is reversible error because he asked the supporting witnesses if they believed that it would be impossible to find twelve men in the northern district of Arkansas County who would not deliberately perjure themselves in order to sit on a jury to try this defendant.

The court should not have asked this question. This was not the test. The question was whether or not the minds of the inhabitants of the northern district of Arkansas County were so prejudiced against the defendant that he could not obtain a fair and impartial trial therein before a jury selected in the usual way.

It does not follow, however, that the action of the court constitutes reversible error. It is well established in this court that error cannot be assigned upon mere reasons given by the trial judge for the judgment rendered. The judgment may be right and the reasoning wrong. The reasons of the trial judge are no part of the judgment, and consequently are not open to attack by assigning them as error. The only reversible action of the court in deciding the motion for a change of venue is the judgment which the court rendered.

The record of the proceedings • in the trial court showed that the judgment denying the defendant’s motion for a change of venue was based upon legal testimony, and it is therefore not subject to reversal. Merritt v. Hinton, 55 Ark. 12; Wilmans v. Bordwell, 73 Ark. 418, and Polk v. Stephens, 126 Ark. 159.

It is also insisted that the evidence is not sufficient to warrant a conviction. We cannot agree with counsel in this contention. On the former appeal it was held that, under our statute, in order to constitute malicious mischief by killing a dog, it need not be shown that the act was done with malice against its owner, but that it was sufficient to constitute the offense to show malice against the animal itself. The court said that the gist of the offense in this State is the killing of the animal wilfully, maliciously or wantonly.

The testimony on the part of the State shows that the defendant was afflicted with insomnia and got up before' daylight to take a walk near his home in the city of Stuttgart. Crowe was his neighbor and owned several dogs. The dogs came out and barked at the defendant. .The defendant went back into his house and came back with his shotgun. The-dogs barked at him again, and he shot and killed one of them. This evidence warranted the jury in finding a verdict of guilty.

It is true that the defendant himself testified that the dogs came toward him in a threatening manner, and. that he believed that they were going to bite him. He went back and got his shotgun so that he might be prepared to defend himself in case they renewed their attack, and shot into the bunch and killed one of them, when they again attacked him.

The testimony of the defendant, however, did not as a matter of law overcome the evidence for the State. The jury might not have accepted his testimony as altogether true. The dog killed was a bird-dog belonging to his neighbor, and the jury might have found that the defendant in his nervous condition was irritated at the d.ogs barking at him, and that he went back and got his shotgun for the purpose of shooting them if they barked at him again. Hence the jury might have inferred malice towards the dog from the circumstances of the killing.

The next assignment of error is that the court refused to give the defendant’s instruction No. 3, which is as follows:

“You are instructed that, while a negligent or careless killing of the dog would be unlawful, no inference or presumption in law can be indulged that such careless or negligent killing was either wilful, malicious or wanton, even though the killing was done with a deadly weapon, but that the State must prove, beyond a reasonable doubt, that appellant killed the dog- either wilfully, maliciously or wantonly.”

There was no' error in refusing to give this instruction. The court read to the jury the statute on malicious mischief. He then told the jury that before it could convict the defendant the State must prove beyond a reasonable doubt that the killing was malicious, that is, that it was done needlessly, wantonly and in a spirit of malice, which denotes an act done cruelly, wickedly, or one prompted by a wicked and corrupt motive and indicates a mind fatally bent on mischief. It is well settled in this State that a court need not multiply instructions on the same point, and the matters embraced in the refused instruction were covered by the instruction given as indicated above.

Error is also assigned upon the refusal of the court to give other instructions asked by the defendant. We do not deem it necessary to set out these instructions. We have carefully examined them and find them completely covered by the instructions given by the court. The instructions given by the court were full and complete, and were in accordance with the construction of the. statute by this court in the opinion on the former appeal.

The court, in express terms, told the jury that the defendant is presumed to be innocent, and that, before it oould find him guilty, the State must prove beyond a reasonable doubt that the defendant shot the dog wilfully, maliciously and wantonly. In addition the court told the jury that these words meant that the act was committed not merely voluntarily, but with a bad purpose and an evil intent, recklessly and unnecessarily.

The court further instructed the jury that the defendant had a right to pass ovér his own premises and the streets and sidewalks adjacent thereto at all times, freely and without molestation, and that if the defendant had reasonable grounds to apprehend an attack from the dog he had a right to protect himself 'and kill the dog if necessary to prevent the attack. Thus it -will be seen that the instructions were as fair to the defendant as he could ask, and the court was not required to repeat the substance of instructions given in varying forms.

Finally, it is insisted that the court erred in refusing to read the entire section of the statute with regard to the malicious killing of a domestic animal.

Sec. 2511 of Crawford & Moses’ Digest, after defining malicious mischief and the punishment therefor in a criminal prosecution, provides that the accused so convicted shall be liable in damages for the animal so killed or wounded as in the preceding section.

Sec. 2509 provides that the jury trying the ease shall assess 'the amount of damages, if any actuad damage has occurred, and that the court shall render judgment in favor of the party injured for threefold of the amount so assessed by the jury.

The court instructed the jury that if it should find the defendant guilty it must also find the value of the dog he was charged with killing. The error complained of is that the court refused to tell the jury that treble damages would be assessed under the' statute.

There was no error in this respect. This is' a statutory offense, and it provides a statutory remedy, and that when a defendant is found guilty the court shall render judgment for treble damages. Under the provisions of the .statute the jury has nothing to do with the penalty. Its duty is .confined by the statute to the finding of the damages actually suffered by the owner of the animal, and it is made the duty of the court to render judgment in favor of the party injured for threefold the amount so assessed by the jury.

We find no prejudicial error in the record, and the judgment must be affirmed.'