text:
    Robertson v. Rural Special School District No. 9.
    Opinion delivered October 9, 1922.
    1. Schools — authority op rural school districts to issue bonds. —Rural special school district bonds issued without the consent of a majority of the legal voters granted at an annual school meeting, in accordance with Crawford & Moses’ Dig., § 8837, are void, even in the hands of an innocent purchaser.
    2. Schools — rural special school district — evidence.—Uncontroverted evidence held sufficient to establish the existence of a rural special school district.
    Appeal from Conway Chancery Court; W. E. Atkinson, Chancellor;
    affirmed.
    STATEMENT OP PACTS.
    W. H.' Robertson brought this suit in the chancery court against Rural Special School District No. 9 of Conway County, Arkansas, to recover $1,200 and' the accrued interest on certain school bonds alleged to have been issued by the said district, and to foreclose a certain deed of trust upon the property of said district to secure the same.
    "VY. H. Robertson was a witness for himself. According to his testimony, a part of his business is to buy school bonds. He bought the bonds of Rural Special School District No. 9 of Conway County, Ark., to the amount of $1,200 from H. M. Noel & Co. of St. Louis, Mo. He paid therefor the face value of the bonds and accumulated’ interest to October 17, 1916, amounting to $18.50. The witness thought that he was buying valid bonds of the district at the time hé purchased them, and bought them in good faith. Noel & Co. buy and sell municipal and school district bonds. Robertson made no inquiry before purchasing the bonds to ascertain whether they constituted a valid claim against the district, but he had received the opinion of an Arkansas attorney to the effect that the bonds were valid and constituted a binding obligation against the district.
    Noel & Company purchased the bonds from Gunter & Sawyer on the 15th day of October, 1916, and paid therefor the face value of the bonds and the accrued interest. The bonds were payable to bearer, and the mortgage was executed to the Central Trust Company of Chicago, Illinois, as trustee. Neither the bonds nor the mortgage were ever in the possession of said trustee, and it did not have anything whatever to do with the transaction.
    There was also introduced in evidence a copy of the resolutions passed by the board of directors authorizing the issuance of said bonds for the purpose of erecting and equipping the school building of the district.
    According to the testimony of the directors of the school district, they entered into negotiations with Gunter & Sawyer with regard to the sale of the bonds. Res • olutions were passed by the directors authorizing the issuance of the bonds, and the bonds were executed by the directors. A mortgage was also executed by them on the real property of the district to secure the payment of the bonds. All these instruments were turned over to Gunter & Sawyer to be examined by their attorneys to ascertain if they were in proper form. Gunter & Sawyer were directed to hold the bonds until they were authorized to negotiate them by the directors. Gunter & Sawyer sold the bonds without authority from the school directors and converted the proceeds of the sale to their own use. The school district never received any of the money. The district refused to pay the interest on the bonds, or to recognize them as valid obligations against the district.
    It also appears from the records of the county court of Conway County that an order was entered of record on June 3, 1916, establishing Rural Special School District No. 9. The record recites that the petition to establish said school district was presented to the county judge on the 9th of May,'1916; that said petition was signed by fifty-four qualified electors residing in the territory described in the petition, and asked for an election to be held for the organization of Rural Special School District No. 9. The record shows further that the county judge ordered the election to be held on the 20th day of May, 1916, and that a majority of the votes cast at the election were for the establishment of the said school district. It was therefore ordered that Rural Special School District No. 9 be established and composed of certain territory, which is described in the order.
    The chancellor found the issues in favor of the defendant school district, and from a decree entered in its favor the plaintiff has duly prosecuted an appeal to this court.

      Reynolds S Steel, for appellant.
    1. Appellant has made out a prima facie case, as conclusively appears from the evidence. Where a deed or contract is regular on its face, the competency and capacity of the parties to the contract are presumed. Possession of a note payable to bearer is prima facie evidence of ownership. 66 Ark. 310; 27 Id. 166.
    2. Every officer is presumed to have done his duty, and those acting in the capacity of officers are presumed to have been authorized; also it is presumed that their acts are valid, and that the law has been complied with. 24 Ark. 402; 30 Id. 72; 49 Id. 449; 50 Id. 276; 25 Id. 311; Id. 219; 69 Id. 352; 45 Id. 298; 55 Id. 368.
    3. Appellant was a Iona fide holder, because he bought the bonds in good faith, before maturity, in due course of business, for a valuable consideration and without notice of any defects whatever in-the bonds. 90 Ark. 93; 104 Id. 388; 94 Id. 100; 121 Id. 634.
    4. The claim set up in the answer that the district never received any money for the bonds, would, if true, be a defense as between the district and Gunter & Sawyer, to whom it sold the bonds, but it is no defense as against the appellant, a bona fide holder. 90 Ark. 93.
    5. The allegations with respect to fraud on the part of Gunter & Sawyer, are not sufficient to establish fraud, if proved, but, conceding the sufficiency of the allegation, the proof fails to establish it. Appellee has not met the burden of proof required. 52 Ark. 224; 24 Id. 459; 27 Id. 500; 37 Id. 195; 105 Id. 697.
    But, if the bonds were secured through fraud, as alleged, it would not avail as a defense in this case, because they are in the hands of an innocent purchaser. 3 R. C. L. 997, par. 207; 89 Ark. 132; 90 Id. 93; 98 Id. 602. An innocent holder takes negotiable paper free from all equitable defenses not appearing on the face of the instrument. 90 Ark. 93; 94 Id. 100.
    If one’s own negligence influences and induces an act whereby an innocent man is injured, the negligent party must sustain the loss. 3 R. C. L. 998, § 208; 63 111. 321; 14 Am. Rep. 129; 3 R. C. L. (N. S.) 212, note. See also, 3 R. O. L. 1007, §. 216; 178 Fed. 53; 21 Mich. 415; 97 Tenn. 19; 36 S. W. 705.

      Strait S Strait, for appéllee.
    1. The bonds are void becau.se their issue was never authorized by a vote of the electors of the district. The district was organised on the 3rd day of June, 1916, by order of the county court, subsequent to the general school election held on the third Saturday in May, in that year; but the question of authorizing a bond issue to raise a building fund as required by law was not, and could not have been, submitted to the electors at that election, before the district was created or had any legal existence. The bonds alleged to have issued bear date of July 15, 1916, months prior to the annual school meeting of 1917, the first election to which the question of issuing bonds for the construction of a school building, or levying a tax therefor, could have been submitted. See sec. '8 Acts 1911, p. 141, amending Act No. 321, Acts 1909, p. 497.
    2. If the plea of being an innocent purchaser of the bonds were available to the appellant, the facts in the case clearly show that he could not have been an innocent purchaser for value, for he was chargeable with notice of the requirements of the law, and the transcript of the proceedings furnished him at the time of his alleged purchase showed .clearly and conclusively that the law had not been complied with, in this, that the certificate required by the above mentioned section did not constitute any part of the proceedings pertaining to the alleged bonds, was never furnished the lender nor ever filed in the clerk’s office, and, in fact, could not have been, since no- election was held.
    The power of school directors is derived from the statute, and they can exercise no powers not therein expressly granted or which do -not arise by fair implication. They can enter into contracts only in the mode prescribed by the statute, and the district is not bound' if they proceed in a mode prohibited by the statute or enter into a contract which exceeds their powers. 95 Ark. 28; 94 Id. 583.
    If a statute requires that a question be determined at an annual school meeting by the electors, they cannot determine that question at a special election held at another time. 49 Ark. 97. Rural Special School District v. Pine Bluff, 142 Ark. 279, settles the questions involved here against the contentions of appellant.
   Hart, J.

(after stating the facts). The decision of the chancellor was correct. We need not decide whether or not Hunter & Sawyer had the authority to sell the bonds. Assuming that they had such authority, the facts in the record bring the case squarely within the rule announced in Rural Special School Dist. No. 30 v. Pine Bluff, 142 Ark. 279, where it was held that bonds issued by the directors of a rural special school district without authority of a majority of the electors, are void, even in the hands of a bona fide holder for-value. The statute provides that all school districts created under the act shall have the power to borrow money when a majority of the legal electors authorize it by vote at any annual school meeting. Crawford & Moses’ Digest, sec. 8837.

The record shows that the rural special school district in question was organized on the 3rd -day of June, 1916.. This was after the annual school meeting which, under the statute, is held on the third Saturday in May. Crawford & Moses’ Digest, sec. 8950.

The bonds were sold on the 15th day of October, 1916. This was before another • annual school meeting could have been held. Therefore, the record affirmatively shows that the school district was organized and the bonds sold during the year 1916, after the time provided by statute for holding the annual school meeting and before another annual election could have been held. This shows conclusively that no vote of the electors of the district was had to authorize the issuance of the bonds, and it follows that the bonds and deed of trust are void because they were issued by the board of directors of said school district without authority. 'But it is insisted that there is nothing in the record to show that the defendant is a rural special school district and that the burden is upon it to establish that fact. We need not decide where the burden of proof lies, for we are of the opinion that there is an affirmative showing that the defendant is a rural special school district, and that there is no evidence to the contrary in the record.

As stated above, the district was organized in 1916. At that time rural special school districts were established under procedings had before the county judge. Rural Special School Dist. No. 6 v. Blaylock, 122 Ark. 418.

It may not be out of place to state in this connection that the General Assembly of 1919 amended the statute so that the proceedings are now had before the county boards of education. Mitchell v. Directors of School Dist. No. 15, 153 Ark. 50.

In cases of cities and towns, the petition for the establishment of the district would have to be filed before and presented to the mayor of such city or town. Crawford & Moses’ Digest, sec. 8827.

Here the petition was presented to the county judge, as required by the statute regulating- the creation of rural special school districts, and the district was designated as Rural Special School District No. 9, as required by the statute. Crawford & Moses’ Digest, secs. 8831-8834. These facts make an affirmative showing from the record that the defendant is a rural special school district.

It follows that the decree of the chancellor must he affirmed.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    George v. Dardanelle Bank & Trust Company.
    Opinion delivered October 9, 1922.
    Replevin — damages.—On a judgment for sheriff, defendant in replevin, for property he had taken on execution, refusal to award damages to him for usable value is proper, since he has no right to use the property, and the plaintiff in the execution has no such right till after sale, and then only if he becomes the purchaser.
    Appeal from Yell Circuit Court, Dardanelle District; A. B. Priddy, Judge;
    'affirmed.

      John, M. Pa/rher, for appellant.
    The court erred in refusing to declare the measure of damages to be the usable value of the property from the date the property was replevied to the date of the trial of the action. 34 Ark. 184; 36 Id. 260; 51 Id. 301; 93 Id. 344.

      Lee S Scott, for appellee.
    Satterfield, the plaintiff in execution, should not have been made a party. He had no title or right of possession in the property levied on. The officer himself had only a- special property in the chattels seized, and the right of possession only for the purpose of sale under the levy. 17 Cyc. 1121. "Where goods are improperly taken away from a sheriff after levy, he, and not the plaintiff in execution, must 'maintain' suit for the same. 4 N. J. L. 115; 23 Ind. 447.
    The sheriff was not entitled to the use of the property levied on. 17 Cyc. 1121; 56 Mich. 142; 34 Cyc. 1564. Therefore, the usable value of the property was not an element of recovery in this case.
   Smith, J.

Satterfield recovered judgment in the Yell Circuit Court against Haney, and caused an execution to be levied on two mules and a wagon belonging to Haney. On the day on which the sale under execution was to occur the Dardanelle Bank & Trust Company replevied the property from the sheriff, and the sale did not take place. This replevin suit was tried by consent before the court, sitting as a jury, after Satterfield had made himself a party thereto. Satterfield insisted that the court should award judgment for the usable value of the mules and wagon, but the court declined to do so, and, instead, rendered judgment for $340, the admitted value of the property, and interest on that sum from the date of the levy of the order of delivery under which the property was taken from the sheriff to the date of trial. The question presented for decision is, whether the court erred in refusing to render judgment for the usable value.

Appellant insists that, inasmuch as the property was returned to Haney on the day the order of delivery was served, and that Haney thereafter had the use of it, thus causing the property to be readvertised before it could be sold, the plaintiff in the execution was deprived of the property and received nothing by way of compensation for this delay.,

But the sheriff himself had only a special possession of the property for the purpose of selling it; and Satterfield, as plaintiff in the execution, had no right of possession of any kind prior to the sale, and no right of possession after the sale unless he became the purchaser at the sale.

Satterfield had the right only to subject the property to sale under the execution, and he was not entitled to be compensated for its usable value until he became entitled to its possession and use, a right which accrued when, and not before, he became the purchaser at the execution sale.-

The case of Tandler v. Saunders, 22 N. W. 271, is very similar in the material facts to the instant case. The opinion of the conrt (Michigan) was rendered by Cooley, C. J., and it was there decided, as reflected by a syllabus in the case, that ‘ ‘ a sheriff who claims property under a writ of attachment is not entitled to the .use thereof; and where, in an' action of replevin, the judgment is in his favor, it is error to allow damages for depriving Mm of such use.”

In Wells on Eeplevin (2nd Ed.), sec. 581 it is said: “ * * * an officer of the law, who has seized property on an execution, has no right to use the property; the value •of the use should not be assessed in his favor.”

The court did not err in refusing to render judgment for the usable value of the property, and the judgment is affirmed.


text:
    Wright v. State.
    Opinion delivered October 9, 1922.
    1. Indictment and information — duplicity.—An indictment for setting up and keeping in possession a certain still and stillworm to be used and operated as a distillery without registering it, held to charge the single offense of setting up a still for the purpose of producing distilled spirits.
    2. Indictment and information — surplusage.—Where an indictment under Acts 1921, No. 324, § 2, alleging the setting up of a still and stillworm for the purpose of producing distilled spirits, alleged further that defendant kept a still in his possession without registering it, the latter allegation, while unnecessary, did not detract from the essential allegation.
    3. Intoxicating liquors — evidence,—In a prosecution under Acts 1921, No. 324, p. 373, § 2, for setting up a still and stillworm for the purpose of producing distilled spirits, evidence held to sustain a conviction.
    4. Intoxicating liquors — setting up still — evidence.—In a prosecution under Acts 1921, No. 324, p. 373, § 2, for setting up a still and stillworm for the purpose of producing distilled spirits, evidence that defendant was actually operating a still and that he admitted that he was engaged in making whiskey, held sufficient to sustain a conviction.

      Appeal from Miller Circuit Court; George B. Haynie, Judge;
    affirmed.

      J. M. Garter and B. E. Garter, for appellant.
    J. S. Utley, Attorney General, Elbert Godwin and Won. T. Haononock, Assistants, for appellee.
   Smith, J.

Appellant was convicted under the following indictment:

“The grand jury of Miller County, in the name and by the authority of the State of Arkansas, accuse Peyton Wrig’ht of the crime of setting up a distillery, committed as follows, to-wit: The said Peyton Wright, in the county and State aforesaid, on the 5th day of June, A. D. 1922, did unlawfully, wilfully and feloniously set up and keep in possession a certain still and stillworm to be used and operated as a distillery for the purpose of making and manufacturing alcoholic, vinous, malt,, spirituous and fermented liquor, without registering same with the proper United States officer as required by law.”

There was a demurrer to the indictment on the ground that it charged two offenses, which was overruled; and a motion was filed to require the State to elect, which was also overruled.

The indictment in the case was based on § 2 of act 324 of the Acts of 1921 (General Acts 1921, page 372), and appellant contends the demurrer and the motion to require the State to elect should be sustained on the authority of the case of McIntire v. State, 151 Ark. 458, in which that section was construed. We there said that § 2 created two offenses, the first that of keeping in one’s possession a stillworm or still without registering it with the proper officer of the United States; and the second that of setting up, to be used as a distillery, any stillworm or substitute therefor.

The first paragraph of this § 2 is directed against the mere keeping of a stillworm or still in one’s possession without registering it. One may not have in his possession a stillworm or still, even though it is not set up, without registering it with the proper United States officer; and if he sets it up, or sets up any substitute therefor, for the purpose of using the same, or which, after being so set up, may be used for the production of distilled spirits, he commits the second offense there denounced; and it is immaterial, so far as this second offense is concerned, whether the still or stillworm is registered or not.

The indictment set out above in fact charges the second offense. It does this with unnecessary particularity. For instance, it alleges the still was set.up without having been registered with the proper United States officer; but, as has been said, the omission to register it is unimportant if the still is set up for the purpose of using it, or was susceptible, to use in producing distilled spirits.

It is argued that the allegation that appellant “did set up and keep in possession” a certain still and still-worm shows an intent to charge the commission of both offenses. The effect of the language quoted is to allege unnecessarily that appellant kept in his possession a still which he had set up for the purpose of producing distilled spirits. The offense was completed when he set the still up for the purpose of producing distilled spirits; and the keeping of it, set up, in his possession, added nothing to the offense.

Having alleged that appellant set up a still and still-worm for the purpose of producing distilled spirits, it was unnecessary to allege that, he thereafter kept the still and stillworm in his possession, or had failed to register it with the proper United States officer; but these unnecessary allegations detracted nothing from the essential allegation that appellant had set up a still for the purpose of producing distilled spirits.

The instructions of the court conformed to the views here expressed and told the jury that, if they found that appellant did unlawfully and feloniously set up and keep in possession a still or stillworm, to be used and operated as a distillery, lie should he convicted; and this was a correct declaration of the law.

What we have just said disposes of most of the objections to the State’s testimony, the objections being in line with appellant’s contention that the indictment was bad in that two offenses were charged in a single count.

The evidence fully sustains the verdict; and in our opinion no error was committed in admitting or excluding testimony. Three deputy sheriffs made a raid on a distillery, which was not only set up but was in actual operation,- and when appellant was first seen he was in the very act of replenishing the fire under the boiler. Whiskey was running from the stillworm, and several jugs of new whiskey were found near by. A gun was found near the still, and appellant admitted to the officers that he, and he alone, was engaged in making whiskey at that place, although he denied that he owned the. still, or had set it up.

Objection was made to the testimony showing the things found around the still and appellant’s admissions. But we think the testimony was competent as showing that the crime charged had been and was being committed and appellant’s connection therewith. The still had been set up by some one. Appellant denied he had any partner in the crime. He was actually operating the still when discovered, and this testimony sufficiently supports the allegations of the indictment, and the judgment must be affirmed. It is so ordered.


author: Humphreys, J.

text:
    Ripley v. Kinard.
    Opinion delivered October 9, 1922.
    Estoppel — conclusiveness against heir. — Where a person owning land represented that he had conveyed it to his wife, and thereby induced another to purchase it from her, he was thereby estopped from asserting any interest as against the purchaser, and his privies in blood and estate are likewise estopped.

      Appeal from Union Chancery Court; J. Y. Stevens, Chancellor;
    affirmed.

      Geo. M. LeCroy, for appellant.
    1. Testimony as to statements and representations made by J. E. B. Summers, deceased, the common source of title, in disparagement of the title, to-wit: that the land belonged to his wife, etc., was incompetent. 45 Ark. 477; 79 Id. 418; 87 Id. 496; 90 Id. 149; 96 Id. 589; 75 Kan. 76, 9 L. R. A. 224.
    2. If such testimony were true, it would not estop the heirs of J. E. B. Summers, deceased. His representations, if made, were not acted upon until after his death. 97 Ark. 397.
    3. One, to avail himself of the benefits of estoppel, must act upon the representations during the lifetime of the one sought to be estopped.

      Jesse B. Moore, for appellee.
    1. The testimony relative to J. E. B. Summer’s declarations as to the title of the land being in his wife, made to Wood pending the negotiations and consummation of the sale, was competent and admissible; and not only would Summers himself have been thereby estopped, but also his privies in blood and title. 69 Ark. 637; 16 ' Cye. 722-A; 125 Ark. 146, 150; 33 Ark. 465; 91 Ark. 148; 96 Ark. 350; 55 Ark. 296; 39 Ark. 134; 136 Ark. 405, 414. This testimony was admissible, because these declarations on the part of Summers formed a part of the res gestae in the negotiations and transactions between himself and Wood. Encyc. of Evidence, vol. 11, pp. 295, 296; Id. pp. 333-4; 9 Cush., 36; 66 Ark. 494, 500; 20 Id. 225; 11 Encyc. of Evidence, 379-B. A person who intentionally induces another to act on his representations will be estopped from denying their'truth, wherever this would occasion wrong or injustice to him who acted upon such reliance. 55 Ark. 296, 299. And to defeat the estoppel on- the- ground of notice, actual, and not constructive, notice or knowledge must be shown.' Id.; 47 Ark. 335; Bigelow on Estoppel, 627; 93 Ind. 480; 103 Mass. 501; 38 Mo. 55; 58 Miss. 30; 19 Minn. 32. ,
   Humphreys, J.

This is an appeal from a decree of the Union Chancery Court, dismissing appellant’s complaint for the want of equity. Appellant instituted suit in ejectment against appellee in the circuit court of said county, alleging that he owned an undivided one-sixth interest in the N. W. % N. W. %, sec. 1, and the N. E, 1/4 N. E. i/4, sec. 2, tp. 19, S., R. 15 W, deraigning his title, through mesne conveyances, from the government; that, by virtue of his ownership, he was entitled to the possession thereof, but that appellee unlawfully held same adversely to him. Appellee filed an answer denying each and every material allegation in the complaint, and, by way of further defense, pleaded an equitable estoppel, which latter plea carried the case to the chancery court, where it was tried upon the pleadings 'and evidence introduced by the respective parties.

The facts revealed by the record, necessary to a determination of the issue involved on this appeal, are as follows: The land was conveyed by the government to J. E. B. Summers, who died intestate in the early fall of 1898, leaving six heirs, one of whom, Robert Summers, was yet unborn. This posthumous child attained to the age of 21 years on the 21st day of July, 1920, at which time he conveyed an undivided one-sixth interest in said land, for valuable consideration, to his brother-in-law, L. A. Ripley, the appellant herein. According to the undisputed testimony of O. P. Wood, which was competent, although objected to by appellant, he bought the land through J. E. B. Summers from his wife, Laura Summers. He testified that late in the summer of 1898, at the instance of Mr. Summers, he went to look at the land; that he spent the night with Summers; that Summers told him he had conveyed the land to, his wife, Laura Summers, because he was involved financially; that he liked the land, and was inclined to buy it; that early in the fall Mr. Summers came to El Dorado, and, as agent for Ms wife, sold Mm the land; that he agreed to pay him $300 for it, pgrt cash and part on time; that in a few days Mr. Summers died, and within 15 or 20 days thereafter his wife, Laura Summers, in accordance with the verbal contract made with Mr. Summers, executed a bond for title to said land to him for $100 cash and $200 on time, evidenced by his two promissory notes; that he took possession within thirty days, and resided upon the land continually thereafter until October 3, 1918 or 1919, at wMch time it was conveyed by his wife, to whom he had conveyed it oil August 18, 1909, to the appellee; that during the time he occupied it he placed improvements upon it to the value of about $1,800; that on December 6, 1900, he paid Laura Summers the balance of the purchase money, and obtained a deed from her of that date to the land, which he placed of record; that he was induced to buy the land upon the representations of J. E. B. Summers and his wife to the effect that he had conveyed it to her and that she was the owner of it'; that he purchased it in good faith, relying upon the representations as true; that he occupied and improved it thereafter, believing in good faith that he and his wife were the true owners. At the time appellees purchased the land he took immediate possession and, in good faith, believing himself to be the sole owner, made improvements thereon to the value of $400 or more.

The vital question presented by this appeal is, whether appellant is precluded, by the facts thus detailed, from recovering an undivided one-sixth interest in said land. The common source of title is J. E. B. Summers. If he estopped himself, by his representations, from ever thereafter asserting any interest in or to said lands, then his privies in blood and estate would also be estopped. J. E. B. Summers represented to the purchaser from his wife that she was the owner of the land, and through that means effected the sale. We think he clearly estopped himself by making this representation, which, was relied upon by the purchaser, from setting up any claim in his lifetime to the land. The undisputed facts bring the instant case within the rule of equitable estoppel announced by this court in the case of Jowers v. Phelps, 33 Ark. 465, and approved in the case of Baker-McGrew Co. v. Union Secd & Fertilizer Co., 125 Ark. 146, which rule is as follows: “A party who, by his acts, declarations, or admissions, or by failing to act or speak when he should, either designedly or with wilful disregard of the interest of others, induces or misleads another to conduct or dealings which he would not have entered upon but for this misleading influence, is estopped to assert his right afterward, bo the injury of the party so misled.” The successors in title to J. E. B. Summers occupy exactly the same position he had in his lifetime. Appellant being his privy in estate, he must fail.

The judgment is therefore affirmed.


author: Humphreys, J. Hart, J.,

text:
    Bulloch v. Dermott-Collins Road Improvement District.
    Opinion delivered October 9, 1922.
    1. Constitutional law — delegation op legislative power. — The act creating the Dermott-Collins Road Improvement District (Acts Ex. Sess. 1920, No. 240, as amended by Sp. Acts 1921, No. 186) held not unconstitutional as delegating legislative powers to the commissioners by authorizing them to extend the boundaries to include additional lands which they might decide would be benefited by the improvement; the power so conferred being ministerial, to be exercised only on ascertainment that lands adjoining the district would be' benefited.
    2. Highways — act creating improvement district not discriminatory. — The act creating Dermott-Collins Road Improvement District is not discriminatory and void in not including lands west of • the western terminus of the road, and adjacent thereto, as the failure to include such lands may have been due to the fact that they would likely be included in another district.

      3. HiGHWAYSt-LEGISLATIVE FINDING OF BENEFITS. — A legislative finding of what lands would be benefited by a contemplated improvement is binding on courts, except for arbitrary or obvious and demonstrable mistakes appearing on the face of the act creating the district, or on account of something of which courts will take judicial knowledge.
    4. Highways — zonal system of assessment. — Assessment of benefits of a road improvement district held not invalid because the zone system was adopted as a basis to govern in assessing benefits against rural lands throughout the district.
    5. Highways — classification of property for assessment of benefits.- — The classification of the property within a road improvement district for the assessment of benefits is not discriminatory against the various property owners in that the commissioners adopted an acreage basis for rural property, a valuation basis for city property, and mileage basis for railroads telegraphs and telephones.
    6. Highways — assessment of rural property not confiscatory.— Assessed benefits of a road improvement district against rural property, ranging from 20 to 50 cents an acre per year, according to the zone within which the property lies, is not a confiscatory burden.
    7. Highways — validity of acts of commissioner. — Assessment of benefits of the Dermott-Collins Road Improvement District held not void as levied by an illegal board, in that one of the commissioners who resided in the district when created had removed therefrom before the assessment was made, since he was either a de jure or a de facto officer, in either of which events his acts would be binding.
    8. Highways — validity of change of route. — Assessment of benefits of á road improvement district held not void because .-the hoard, with the approval of the county court, changed the route within an incorporated town so as to pass over private property not designated as streets by the town council, as' required by Crawford & Moses’ Dig., § 7568, since the Legislature could select anothei agency to open streets.
    9. - Highways — change of rGute — notice to owner. — The validity of an assessment of benefits of a road improvement district is not affected by a change of route so as to take private property for the roadbed without notifying the owners of the property; such notice not being a jurisdictional prerequisite to a change of route, but simply a method provided for ascertaining and establishing the damages accruing to one whose property is taken for public use.

      10. Highways — change of route — validity of assessment. — The validity of an assessment of benefits of a road improvement district created by special act is not affected by a material change in the route, where the act creating the district in express terms authorized the county court to change the route.
    11. Highways — necessity of election. — -Where, at the time of the adoption by election of an act creating a road improvement district, the act contained a provision authorizing the county court to change the route, and the act did not provide for another election in case the route was changed, it was not necessary, after change of the route, to hold a second election.
    12. Highways — necessary bridges. — Where the act creating a road improvement district authorized the construction of “necessary bridges,” meaning bridges incident to the main improvement, but not of bridges of such magnitude as to constitute independent improvements, the district was authorized to build two bridges across two small nonnavigable streams at a cost small in comparison to the estimated cost of the entire improvement.
    Appeal from Chicot Chancery Court; N. B. Scott, special chancellor;
    affirmed.

      Henry & Harris, for appellants.
    1. The act is unconstitutional and void in that it confers upon the commissioners legislative powers. Act, §9. No limit is placed by the act upon this delegated legislative authority. 72 Ark. 205; Whaley v. Northern Boad Improvement District, 152 Ark. 573; 143 U. S. 649; 12 Sup. Ct. Rep. 495; 172 U. S. 269,19 Sup. Ct. Rep. 187.
    The act is void also because it is discriminatory. We think that the omission from the district of the lands adjacent to the west corporate limits of the town of Collins, and abutting upon the proposed road, was such an obvious arbitrary and discriminatory enactment as, on its face, to make the act invalid, and that the facts in this case distinguish it from Hill v. Echols, 140 Ark. 474, and Cumnock v. Alexander, 139 Ark. 153, relied on by -appellees.
    2. The assessment of benefits is illegal and void, because made in an arbitrary manner and without regard to benefits received by each tract of land. 66 L. ed. 233; 127 Ark. 310, 315, 316; 153 Ark. 587; 86 Ark. 1; 152 Ark. 573; 151 Ark. 398; 55 N. Y. 604; 48 L. B. A. 851. The assessment is void because the improvements were not assessed. 86 Ark. 14; 127'Ark. 315. The assessment is void because of illegal classification of property discriminating against various property owners, viz: rural property upon a flat acreage basis, urban property upon an ad valorem basis, i. e., upon the assessed value as fixed by the county assessor on the general assessment records, and railways, telegraph and telephone property upon a mileage basis. The assessment of benefits is confiscatory. 50 Ark. 116; 86 Ark. 1; 98 Id. 543; 68 Id. 376; 119 Id. 254; 118 Id. 303; 32 Id. 31; 39 Id. 202; 86 Id. 231.
    The assessment is void because the estimated cost of the improvement exceeds the total benefits to the lands. 89 Ark. 516.
    The assessment is void because levied by an illegal board, rendered so by the removal of the secretary of the board from the county of his residence when the act was passed creating the district into another county in the district where the assessment and other proceedings were had.

      John Baxter and Coleman, Robinson $ House, for appellees.
    1. The assessment of benefits is not void because made in an arbitrary manner. The adoption of the zone system, as appears by the record, was done only after consideration of all the elements essential to a fair and equitable assessment, and the assessment was made in accordance with the best judgment of the commissioners. 141 Ark. 164; 135 Id. 155; 139 Id. 322, 325; 143 Ark. 341; 153 Ark. 587.
    The assessments are not void for failure to include the improvements. The improvements were in fact included. Neither is the assessment void because of illegal classification. Assessments based upon classification of various kinds of property have repeatedly been approved. 134 U. S. 232; 210 TJ. S. 245; 222 TJ. S. 525; 229 TJ. S. 322; 247 TJ. S. 132.

      The assessment does not amount to confiscation. The court is not justified in substituting its judgment for that of the commissioners, unless for some palpable error clearly shown, and the evidence here shows that the assessment was made in a careful and painstaking manner, and would greatly benefit the property in the district, the benefits probably exceeding the amount actually assessed against the district. 151 Ark. 484; 110 U. S. 347; 154 U. S. 112; 191 U. S. 310; 214 IT. S. 359 and cases cited; 181 IT. S. 340,341; 172 U. S. 269; 221U. S. 550, 553.
    ' The removal of one of the commissioners from one county into another in the district did not affect the legality of his acts. 120 Ark. 287.
    The route has not been invalidated by any material change. It is shown, that the road runs over substantially the same line as the original road, except for the purpose of straightening it only. Moreover, the Legislature had the right to grant the commissioners the right to change the route with the consent of the county court. 120 Ark. 284; 147 Id. 469.
    The act is not void because it confers legislative power on the commissioners. 125 Ark. 57; 142 Id. 62; 147 Id. 362.
    The act is not void, as discriminatory, because it limits the eastern and western boundaries of the district. 139 Ark. 153; Id. 431.
   Humphreys, J.

This is an appeal from a judgment of the Chicot Chancery Court dismissing appellant’s bill, attacking the constitutionality of the act and the amendment thereto creating the Dermott-Collins Road Improvement District and the validity of the assessment of benefits as a whole against the property. The district was created by act 240 of the Extraordinary Session of the General Assembly of 1920, and amended by act 186 of the Special Acts of the General Assembly of 1921. The bill was filed pursuant to section 11 of said act, according property owners in the district the right to contest the validity of the assessments of benefits, within thirty days after written protests against them should be overruled 'by the •commissioners.

The constitutionality of the act, as amended, is assailed upon two alleged grounds: first, that the act confers legislative powers upon the commissioners; second, that the act is discriminatory.

(1) In section 9 of the act authority was conferred upon the commissioners, by and with the consent of the county court, to extend the boundaries so as to include additional lands which they might decide would be benefited by the improvement. Appellants contend that the right to extend the boundaries was a delegation of legislative authority to the commissioners. We do not think so. The power conferred was ministerial, and to be exercised only upon ascertainment that adjoining lands to the district, as created, would be benefited. The legislative function of creating the district was performed by the Legislature itself.

(2) . It is asserted that the act is discriminatory and void because lands lying within five miles north and south of the improved road in" Collins are embraced within the district, whereas lands of the same character lying west of the corporate limits of Collins and adjacent to the road are not included. The western boundary of Collins is the terminus of the road. Improved roads must have termini. The failure to include the lands west of Collins may have been due to the fact that they would likely be included in another district on toward Monticello. A legislative finding of what lands will be benefited by a contemplated improvement is binding upon courts, except for arbitrary or obvious and demonstrable mistakes, appearing in the face of the act creating the district, or on account of something of which courts will take judicial knowledge. Cumnock v. Alexander, 139 Ark. 153; Hill v. Echols, 140 Ark. 474.

The validity of the assessment of benefits is assailed upon many grounds. The zone system was adopted as a basis to govern in assessing benefits against rural lands throughout the district. This is made the first ground oí attack on the assessment. The zone system has been approved by this court as a proper method for determining benefits to lands embraced within an improvement district, provided that the commissioners of the district, after considering all the elements affecting the benefits, conclude that the benefits to the respective tracts of land may be arrived at in that manner. Bd. of Imp. v. S. W. Gas & Elec. Co., 121 Ark. 105; Mo. Pac. R. Co. v. Conway County Bridge Dist., 134 Ark. 292; Wilkinson v. Imp. Dist., 141 Ark. 164; Oates v. Cypress Creek Drainage Dist., 135 Ark. 155; Rogers v. Highway Dist., 139 Ark. 322; Desha Road Imp. Dist. No. 2 v. Stroud, 153 Ark. 587; Reisinger v. Improvement Dist., 143 Ark. 341. Appellants contend that the commissioners in the instant case arbitrarily or blindly adopted the system without taking into consideration the character and value of the respective tracts of land, their comparative fertility, the improvements located thereon, their proximity to towns or railroads, etc. We do not so interpret the testimony. After a careful reading thereof, our conclusion is that the commissioners, after a consideration of all the elements affecting the benefits, by a majority of four to one concluded that the zone system would work out a fair, just and correct assessment of benefits against the separate tracts of land. It is true the commissioners testified that in making the assessment they did not take into consideration the value and character of the lands, or whether located in close proximity to towns or railroads, the only thing considered being the distance of respective tracts of land from the road to be improved; that they assessed eleven dollars an acre against all lands within one mile of the road; eight dollars per acre against those from one to two miles; six dollars per acre against those from two to three miles; four dollars per acre against those from three to four miles; and two dollars per acre against those from four to five miles away from the road. This testimony had relation to making the assessment of benefits against each tract of land and not to the basis adopted for making the assessment, as indicated by the following question propounded to C. R. Bates, one of the commissioners: “Was any variation made in the assessment of benefits on account of existing fences, barns, or houses located on lands within the same zone in the district, or other improvements'?” and also indicated by his statement, that they tried to take everything into consideration tending to affect the assessment, and that the zone system was a fair and equitable manner by which to assess the benefits, and as further indicated by the explanation of Dr. J. A. Thompson and Walter Porter, two of the commissioners, that they made no difference between unimproved and improved land, because unimproved land had timber on it which became more accessible on account of the road, and because one acre of new-ground was worth two of old land.

Appellants next contend that the benefits to improvements upon certain of the lands was not assessed. We do not so interpret the evidence. Everything that would be benefited on account of the improvements was considered by the commissioners in adopting the zone system. The adoption of the zone system eliminated the necessity of further consideration of improvements, values or other elements affecting the benefits, except the distance of the respective tracts of land from the road.

Appellants next contend the classification of the property adopted by the board for the assessment of benefits was discriminatory against the various property owners. They adopted an acreage basis for rural property, a valuation basis- for city property, and a mileage basis for railroads, telegraph, and telephone. A classification of the various kinds of property as a basis upon which to assess benefits has been approved by this court as feasible and practical. Oates v. Cypress Creek Drainage Dist., 135 Ark. 155.

Appellants’ next contention is, that the assessment of benefits is illegal because confiscatory of the land. The testimony is in sharp conflict upon this point. ■ That introduced by appellants is in the nature of opinions based upon the low price of farm products and that an additional tax will decrease rather than enhance the value of the property. That introduced by appellees is also in the nature of opinions based upon increased accessibility to the lands, convenience of travel, added marketing facilities, and enhancement in value of lands on account of the construction of a good road. The record reflects that the old road is almost impassable a great part of the year. After a careful review of the testimony we cannot say that the finding of the chancellor, adverse to the contention of appellants, is contrary to the weight of the evidence. The assessed benefits against the rural property, according .to the zone within which it lies, ranges from twenty to fifty cents an acre per year, which, within itself, is not large enough to say the assessment is a confiscatory burden laid upon the land.

Appellants next contend that the assessment of benefits is void because, it is said, a preponderance of the evidence shows that the estimated cost of the improvements exceed the total benefits to the land.. The estimated cost of the improvement is about $200,000. The benefits assessed against the lands are about $400,000. A majority of the commissioners and certain landowners in the district are of the opinion that the land will be benefited to the full extent of the assessments on account of the improvement. In the opinion of a number of landowners the value of the lands will be decreased instead of increased by the construction of the road. Each witness has assigned reasons for the opinion held by him. For example, some say that a good road will not enhance the value of land near it because it does not increase its productive qualities, whereas others say that it does, because it renders the land more accessible and increases the opportunities for marketing the products on cultivated lands, and the opportunity to sell the timber on wild lands. After a full consideration of the opinions of the several witnesses, and the reason assigned by each in support thereof, we have concluded the finding' of the chancellor, adverse to appellants’ contention, is not contrary to a preponderance of the evidence.

Appellants’ next contention is, that the assessment of benefits is void because levied by an illegal board. This contention is based upon the fact that C. R. Bates, a commissioner who resided in Drew 'County when the district was created, removed to a point within the district in Chicot County, before the assessment of benefits was made. It is undisputed that he acted with the other commissioners in making the assessment. No proceeding was brought to oust him. He acted either in .the capacity of a de jure or de facto officer, and in either event his acts would be binding.

Appellants next contend that the assessment of benefits is based upon an invalid route and void, assigning three reasons in support of the contention. The first reason given is that the board, with the approval of the county court, changed the route in the incorporated town of Collins so as to pass over private property not designated as streets by the town council. It is contended that the county court had no jurisdiction to open a highway through private property within incorporated towns and cities. That the exclusive power to open streets and alleys is vested by § 7568, C. & M. Digest, in towns and cities. It is true such power was granted to incorporated towns and cities-by the section in question, but by doing so the Legislature did not. lose its authority to withdraw such power and vest it in another agency. The act creating the district made the western corporate line of Collins a terminus of the road, and conferred power upon the county court to change the route. The Legislature could have selected any route it pleased through the town of Collins for the highway, notwithstanding its prior delegation of exclusive power to towns and cities to open streets and alleys within the corporate limits, and by virtue of such reserved authority could have selected another agency to do so.

The second reason given is, that the route was changed so as to take private property for the roadbed without giving notice to the owners of the property, in the manner provided by § 8 of the act. It is shown that this was done without notice. The notice provided by this section is not a jurisdictional requirement or prerequisite to changing the route. It is simply a method provided for ascertaining and establishing the damages accruing to a property owner, whose private property is taken for public use. The effect of the failure to give the notice is to postpone the ascertainment of the damages until the property is actually taken, and could in no wise affect the validity of the assessment of benefits.

The third reason given is, that the route has been materially changed. Without deciding, but conceding this to be so, it does not invalidate the assessment of benefits. Section 1 of the act creating the district in express terms authorizes the county court to change the route. The rule contended for, that only immaterial changes can be made in the route, is applicable to districts organized under the Alexander law, or special acts in which authority was not conferred on any agency to make a change in the route. The rule is applicable under the Alexander law because the property owners in a contemplated district have a right to know the route in advance, so they may intelligently decide whether they want to organize the district. The Legislature has authority to ■create an improvement district based upon the benefits to the lands included therein, and to designate the route, or select an agency to do so, without the consent of the property owners. Having such authority, it naturally follows that it may authorize an agency to make a material change in the designated route.

Appellants next contend that it was necessary, under § 36 of the act creating the district, to hold another election after the route was changed, which automatically changed the boundaries of the district, to put the act into' effect. The record reflects that an election was held pursuant to the provisions of § 36, in which the act was adopted by a vote of 501 for and 22 against. At the time of the adoption of the aot it contained >a provision authorizing the county court to change the route. The act contained no provision for another election in case the route was changed. The act went into effect when voted upon, subject to any change the county court might thereafter make in the route. This was clearly the intention of the act, else provision would have been made for another election.

The last contention for appellants is, that the assessment for benefits is void because made to embrace bridges across Cut-Off Creek and Bayou Bartholomew. These are not navigable streams, and the plans provide for wooden bridges to be constructed over them at an estimated cost of between $10,000 and $12,000. The estimated cost of the bridges is small in comparison with the estimated cost of the entire improvement. The commissioners are authorized under § 3 of the act to construct necessary bridges. This means, of course, bridges incident to the main improvement, and not bridges of such magnitude that themselves would constitute independent improvements. We do not think the character of bridges to be constructed over these non-navigable streams, or their estimated cost, stamp them as independent improvements. They are incidental and necessary to the construction of the road. In other words, they are component parts of one improvement.

The decree is affirmed.

Hart, J.,

(dissenting). Judge Wood and myself think that the assessment of benefits in this case was made upon an arbitrary basis. The zone system was adopted. The road ran through rich bottom lands in a high state of cultivation, and poor hill farms. The bottom lands and hill lands were placed in the same zone. No account was taken of the fact that some of the lands were cut up with slashes and sloughs. Timber lands and cut-over lands were placed in the same zone with lands in a'high state Of cultivation which had valuable houses and barns upon them. These facts are undisputed.

It is true that some of the witnesses testified that the bottom lands and hill lands were equally benefited; that the lands which were all in cultivation were not benefited more than corresponding tracts cut up with slashes and sloughs, and that the proximity to the road caused the benefit to the lands, regardless of the quality of the soil or the topography of the earth.

We do not think that their testimony is in accord ■yith common reason, and are of the opinion that it was an arbitrary act on the part of the commissioners to place all these different kinds of lands in the same zone. It is a matter of common knowledge that poor hill lands cannot pay the same taxes as rich bottom lands, and it follows that the benefits in such cases are not the same.

It is also true that lands which are cut up with slashes and sloughs cannot pay the same amount of taxes as those tracts where all the land is susceptible of cultivation. A great preponderance of the evidence in the present case shows that the system of assessing benefits adopted will operate disastrously to the landowners, and will place a grievous burden upon them, instead of benefiting their lands. The assessment of benefits was made in an arbitrary and unreasonable manner within the rule in Lee Wilson Co. v. Road Imp. Dist. No. 1, 127 Ark. 310.

It does not matter that witnesses swear that lands will be equally benefited by a road, if the situation and conditions described show otherwise.


author: McCulloch, C. J.

text:
    State v. Mason.
    Opinion delivered October 16, 1922.
    1. Libel and slander — indictment—consent of person slandered. — Under Crawford & Moses’ Dig., § 2397, providing that no indictment for slander shall he found except “at the instance or by the consent of the person slandered or his legal representative,” it is unnecessary for the indictment to contain an affirmative allegation to the effect that it had been returned by the consent of the person slandered.
    2. Libel and slander — indictment—consent of person slandered. —The fact that an indictment for slander was returned without the consent of the person slandered may be taken advantage of by a motion to set aside the indictment, and will be waived in the absence of such a motion.
    3. Libel and slander — indictment.—In an indictment for slander, it is not sufficient to charge merely the import or substance of the words used, although quotation marks are used to set forth such import.
    4. Libel and slander — publication.—In an indictment for slander which charges that the words set forth were published, it is implied that they were uttered in the presence and hearing of some other person, and it is unnecessary to designate the persons before whom they were uttered.
    5. Libel and slander — words slanderous per se. — A charge that “Mrs. Dolly Yates’ baby doesn’t belong to her husband, Claud Yates; it is Bunk Yates,’ and it looks just like him,” constituted a charge of adultery, and was slanderous per se.

    Appeal from Clay Circuit Court, Western District; R. E. L. Johnson, Judge;
    affirmed.

      J. S- Utley, Attorney General, Elbert Godwin and Wm. T. Hammock, Assistants, for appellant.

      G. T. Bloodworth, for appellee.
   McCulloch, C. J.

The appellee, Mrs. Ollie Mason, was arraigned under an indictment returned against her in the following form:

“The grand jury of the Western District of Clay County, in the name and by the authority of the State of Arkansas, accuse Mrs. Ollie Mason of-the crime of slander committed as follows, viz: In. the district and county aforesaid, on the 7th day of April, 1921, the said Mrs. Ollie Mason did unlawfully, knowingly, falsely, and feloniously use, utter, and publish concerning about one Mrs. Dolly Yates language and words of the following import: ‘Mrs. Dolly Yates’ baby doesn’t.belong to her husband; Claud Yates; it is Bunk Yates’ and it looks just like him. Bunk Yates hurried to get away before the baby was born, ’ which language and words were false; against the peace and dignity of the State of Arkansas. ’ ’

. There was a general demurrer to the indictment on the ground that it failed to state facts sufficient to constitute a public offense. The court sustained the demurrer, and the State has appealed.

Counsel for appellee defends the ruling of the court on the ground, in the first place, that the indictment does not contain an allegation to the effect that it had been returned “at the instance, or by consent, of the person slandered, or his legal representative” in compliance with the statute. Sec. 2397, C. & M. Digest. The statute ^referred to provides that no indictment for slander shall be found except, as before recited, “a.t the instance, or by consent, of the person slandered, or his legal representative.” But we are of the opinion that it is unnecessary for an indictment to contain an affirmative allegation to the effect that the indictment had been returned by the consent of the person slandered, or his legal representative. Such, we think, is the necessary result of the opinion of this court in Conrand v. State, 65 Ark. 559, where it was said that an allegation to the above effect “was no part of the statements which were made to show the commission of the offense, and it was not necessary to prove it to convict the defendant. 'Continuing, the court said: “In pleading not 'guilty the defendant did not put it in issue. If it was untrue, the defendant could have taken advantage of it by a motion to set aside the indictment, as it affected the authority of the g’rand jury to find the indictment, and nothing more. Having failed to do so, he waived any advantage he.could have taken of it, and it was not necessary for the State to prove that it was true.” Now, if it was unnecessary for the State to prove the allegation, it was likewise unnecessary to allege it, 'but it is a preliminary question to be taken advantage of, if at all, by a motion to set aside the indictment.

The ruling of the court is next defended on the' ground that the indictment does not purport to set forth the alleged slanderous words. We have held that it is essential that the words must be set forth and proved substantially as used by the accused — that it is not sufficient to charge merely the import or substance of the words used. Morris v. State, 109 Ark. 530. According to the language of the indictment, only the import of the words used are set forth. It is true, that these words are included in quotation marks, but this is not sufficient to identify the words as the language used by the accused so as to contravene the positive allegation of the indictment that those words constitute only the import of the words used by the accused. Taking the allegation as a whole, including the punctuation, it means only that the quoted words are those which constitute the import of the words used, and they are not either identically or substantially the words used. This distinction is made clear, we think, by comparison of the ease with the decisions of this court in Teague v. State, 86 Ark. 126, and Burnett v. State, 96 Ark. 101, and the opinions in those cases support the conclusion we now reach with regard to the effect of the language of the indictment. Our conclusion is therefore that the demurrer was properly sustained on this ground.

Another ground on which counsel seeks to sustain the ruling is that there is no allegation designating the persons in whose presence the alleged slanderous words were uttered. We are of the opinion that such an allegation is unnecessary where it is charged, as in this instance, that the words were published, which necessarily implies that they were uttered in the presence and hearing of some other person. There is some contrariety of opinion expressed in the authorities on this subject, and some of the older cases hold that it is essential that the name of the person in whose presence and hearing the slanderous words have been uttered be alleged and proved. But there are authorities to the contrary which are in harmony with the liberal practice established by our criminal code, which provides, among other things, that an indictment is sufficient if “the offense is stated with such a degree of certainty as to enable the court to pronounce judgment on conviction, according to the right of the case,” and that an indictment is not insufficient “nor can the trial, judgment or other proceeding thereon be affected by any defect which does not tend to the prejudice of the substantial rights of the defendant on the merits.” Secs. 3013 and 3014, C. & M. Digest.

Among the cases which hold to the view that a mere allegation that the slanderous words were “published” is sufficient, are the following: Hanning v. Brassett, 12 Bush (Ky.) 361; Ware v. Cartledge, 24 Ala. 622; Perry v. Dozier, 161 Ala. 292; Downs v. Hawley, 112 Mass. 237; Hurd v. Moore, 2 Ore. 85. These were all civil cases, but no greater certainty is required in this respect in a criminal prosecution. The Massachusetts court, in the case cited, above, said: ‘ ‘ The first count alleges the publication generally in the usual form, and sets out the words spoken. It would have been sufficient if it had stopped there. An averment is added that, by the words so publicly uttered fin the presence and hearing of divers good citizens of this commonwealth, ’ the defendant intended to accuse the plaintiff of the crime charged. The wrong committed was sufficiently charged without this last clause, in the form provided bjr the Practice Act of 1852, and used since then.” The Kentucky court, in the case cited above, quotes with approval from a statement from Chitty to the effect that there must be an allegation as to the publication of the slander, but that “any words that denote a publication are sufficient.”

Finally, it is alleged that the -words of the indictment, even if held to constitute the identical words used, are not slanderous per se and do not constitute a charge of adultery without pleading the innuendo to the effect that such was the meaning of tlm words. We think that, giving the words their usual meaning, if the words had been charged as the identical ones used, they constitute a charge of adultery and are' slanderous per se.

The court was correct, however, in sustaining the demurrer on the ground set forth above, that it failed to charge the slanderous words used, so the judgment is affirmed.

Hart and Smith, JJ., dissent on ground that the identical words are properly charged.


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

text:
    Constantin Refining Company v. Martin.
    Opinion delivered October 16, 1922.
    1. Mines and minerals — explosion of gas — negligence.—Where defendant owned a producing well and was not guilty of negligence in capping it or in permitting gas to escape therefrom, but the capping produced a crater on another’s land over which defendant had no control, and plaintiff’s intestate, while looking at the escaping gas, was killed when the escaping gas was ignited by another spectator, defendant was not liable.
    2. Negligence — attractive nuisance doctrine. — Where defendant drilling for oil in capping a gas well produced a crater on another’s land, and a child looking on was killed by the gas becoming ignited, since the injury did not result from a failure to warn spectators, and defendant had no control over the premises, the doctrine of attractive nuisance was not applicable.
    Appeal from Saline Circuit .Court; W. H. Evans, Judge;
    reversed.

      Breehenridge, Bostick & Daniel, and Moore, Smith, Moore & Tricher, for appellant.
    The attractive nuisance doctrine is not applicable, since the deceased was past fourteen years of age, unusually bright, and accompanied by her father and uncle and aunt, and the infancy of the trespasser raised no duty towards her where otherwise none would exist., The bare fact of production of oil or gas by the defendant on its leased lands raised no presumption of negligence in its operations. 153 Pa. 366; 26 Atl. 644; 20 L. R. A. 642. The premises where the accident occurred were not under the control of defendant.. To reach the place one had to cross the railroad track, which in itself is a constant warning of danger. 97 Ark. 438. Defendant was not negligent in capping the well; it was required to do so by law. C. & M. Dig., sec. 7306. In order to connect defendant with the creation of the crater, the facts would have to be supplied by conjecture and speculation, and such a verdict could not stand. 117 Ark. 655. There was nothing, according to usual experiences, by which defendant should have apprehended the result. The test of responsibility is whether such result as did happen was probable or likely to occur in the usual experiences of mankind. 171 Mass. 536. There are no cases directly in point where liability is sought to be imposed for an accident on property not controlled by a defendant, and it is only by analogy that we may test the liability in this case. The courts have uniformly held that where one creates some defective condition on lands, and after-wards transfers possession to another, he is not responsible for injury occurring after he has passed control. 96 Ark. 442. For comparison see the following cases. 114 Ark. 218; 150 la. 403; 32 L. R. A. (N. S.) 743; 63 Ark. 65; 290 111. 395; 175 Mass. 510; 65 Kan. 436; 69 Ark. 489; 90 Ark. 278; 48 Ark. 491; 104 Ark. 236; 114 Ark. 218; 227 S. W. 166; 103 Ark. 226. Defendant’s instruction No. 16, showing distinction between active and passive negligence as applied to implied licensees, should have been given without the modification. 74 Fed. 350.

      Mehaffy, Bonham & Mehaffy, and Rose, Hemingway, Cantrell £ Loughborough, for appellees.
    The attractive nuisance doctrine applies. 124 Ark. 1; 100 Ark. 76. Any negligence that might be imputed to the father could not be so imputed to the appellee. 77 Ark. 398; 59 Ark. 180. It is no defense that the escape of the dangerous agency from the premises of defendant was not due to its personal negligence. L. R. 1 Exch. 265; 1 Eng. Rui. Cas. 235; 116 Ark. 433; 141 Ark. 32; see note to 15 L. R. A. (N. S.) 535. Appellant is in no attitude to urge the defense of liability to a trespasser, for such defense is personal to the owner of the premises trespassed upon. 53 Ark. 381; 109 Atl. 653; 153 N. Y. S. 120; 92 S. E. 559; 29 Cyc. 443; 77 N. Y. S. 820; 70 N. E. 1052; 37 N. Y. 637, 97 Am. Dec. 761; 83 N. E. 477. The duty devolved on appellant to properly safeguard the dangerous place, even though situated on the property of another. 79 Ark. 490. Its negligence in not so doing was the proximate cause of the injury. 95 Ark. 297; 134 Ark. 1; 104 Ark. 59; 137 Ark. 217; 124 Ark. 599; 70 Pac. 635. Where the intervening cause concurs with the negligence of the wrongdoer, the first wrongdoer is liable and the second may also be. 31 L. R. A. (N. ■S.) 559; 49 Cal. 87.
   McCulloch, C. J.

This is ah action to recover damages sustained on account Pf the death of a young girl, which was caused by an explosion or ignition of natural gas in the oil fields near El Dorado. The plaintiff sued as administrator for the benefit of the estate of the decedent, and for the benefit of the next of kin, and he also sued in his individual right as parent of the decedent, who was about fourteen years of age. The plaintiff recovered damages in the trial below, and the defendant appealed.

The defendant, Constantin Refining Company, was operating in the El Dorado oil field, and was engaged in drilling for oil on a tract of land on which it held a lease. A few weeks before the occurrence which caused the death of the girl, Mary Martin (which was on the afternoon of Sunday, June 13, 1920), the defendant brought in a producing well, which, after a few days, it succeeded in capping so as to prevent the escape of oil or gas from the mouth of the well.

There is no evidence in the case of any escape of gas in noticeable quantities from the mouth of the well. However, a few days after the well was capped it was found that there was an escape of gas through fissures in the earth to the surface, and at a point 950 feet distant from the well there was a crater formed in the bed of a small stream of water. There was no evidence adduced directly showing that the escape of gas to the surface through fissures was caused by capping defendant’s well, but for the purpose of the present discussion we .will assume that the proved circumstances warranted that inference and that the crater was caused in that way. The crater was on another tract of land than that on which the well was located — a tract in which the defendant had no interest and over which it had no right to exercise control. It was on a tract of fenced and cultivated land known as the Parnell field, which was owned by certain persons at El Dorado named Parnell, and on which another oil company held a lease for the development of oil and gas.

A railroad track was between defendant’s tract of land and the Parnell tract, and the track wtas on a dump', or embankment, twelve feet 'high. The crater was distant from any public road and on the line of the railroad right-of-way and the Parnell tract, and when it opened it blew up the fence which marked the line of the right-of-way. It was about twenty feet in diameter, and was full of muddy water, which was forced upward by eruption of the escaping gas, and mud and water were thrown up to a height of about fifteen feet. This caused a loud roar, which could be heard at considerable distance, and there was a noticeably strong smell of gas around it.

This was such an unusual situation that it attracted a great deal of attention, the scene being only a few miles distant from the city of El Dorado. There was a large number of visitors to the scene for the purpose of witnessing it, and on the day on which the explosion occurred, which was on Sunday, the scene was visited by large crowds. Visitors usually parked their cars and other vehicles in the road or lane a short distance from the crater and walked across defendant’s land until the railroad was reached, and then they walked.down the railroad to a trestle opposite the crater.

Defendant erected on its own premises warning signs indicating danger and directing that there be no smoking. It does not appear that these signs were erected after the crater was blown in, or that they had reference to the danger of visiting the crater, but they were probably erected prior to the bringing in of the well, as warnings of danger to those visiting the fields.

On the Sunday afternoon in question, Mary Martin, in company with her parents and several other relatives, came to the scene of this crater to witness the remarkable phenomenon, and' the party approached in the usual way indicated above. Some of the Martin family remained standing on the railroad track, but Mary, .in company with her uncle and aunt, walked out toward the crater and was standing between it and the railroad trestle when the explosion occurred. The gas in the air was ignited and Mary Martin was severely burned, and died a short time thereafter. There were five persons, in all, who died as a result of the explosion.

The evidence shows — at least the only account given of the cause of the explosion — that the ignition of the gas was caused by a young man named Hayes striking a match with which he was lighting a cigar. The witnesses say that when he applied the match to the cigar in his mouth a flash of fire was seen from his mouth to the crater.

Liability is sought to be imposed on the defendant on the ground that it caused a dangerous agency to escape, and failed to exercise care to prevent injury to others.

The court submitted the case to the jury on instructions which stated the law of the case to be that if the defendant “negligently caused or permitted a large-pool of,, oil or gas * * * * to accumulate and spread on adjacent property, and negligently failed to guard and protect persons who they knew were constantly congregating in the vicinity of said pool of oil or gas,” it would be liable for injury to other persons while in the exercise of ordinary care for their own safety.

We deem it unnecessary, in view of the conclusion which we have reached, to discuss the instructions of the court, but, assuming the existence of the facts herein-before recited, and drawing from them the conclusion most favorable to plaintiff’s right of action, we proceed to determine whether or not, in any view, there áre facts from which liability can be imposed upon the defendant for the injury which resulted from the explosion.

In the first place, we are unable to discover any act otf negligence on the part of the defendant. There was none in bringing in the well, for in doing so the defendant was in the pursuit of a lawful business, and it conducted its operations in accordance with the usual methods.

There was no negligence in capping the well, for defendant had the right to do so in order to preserve the product of the well, and the law compelled it to do so, when necessary, in order to prevent the escape of natural gas. Crawford & Moses’ Digest, § 7306.

There was no negligence in the formation of the crater, for that resulted by reason of the natural pressure of oil and gas through fissures in the earth.

There was no negligence on the part of the defendant in failing to erect barriers around the crater to prevent the approach of visitors, for the crater was not on premises in which the defendant was interested or over which it had any control. It was not chargeable with neglect in failing to guard the premises of other persons, nor was it responsible for injury resulting from the omission of others to guard the crater, unless it was guilty of negligence in permitting the escape of the gas.

As we have already seen, there was neither negligence in causing the crater nor in permitting gas to escape from the earth’s surface at the mouth of the well.

It must also he said with respect to the charge of negligence in failing to give warning of the danger, that such warning 'was unnecessary and had no relation to the injury of plaintiff’s intestate, for the reason that the danger was well known, and all who visited-the place came with full knowledge of the situation and for the sole purpose of witnessing the extraordinary scene.

The principle upon which liability may be imposed on account of the maintenance of an attractive nuisance —known as the doctrine of the "turn-table cases” — may be disposed of with but little discussion, for it is obviously inapplicable to the facts of this case. This is true because, as we have already seen, the alleged nuisance, if such it may be considered, was not maintained on the defendant’s own premises, or at aplace over which it had the right to exercise any control. It is inapplicable for still another reason, that the failure to give warning of danger did not cause plaintiff’s intestate and her associates to expose themselves to the danger.

Neither can liability be predicated upon the doctrine of concurring negligence, for the reason that, since there was no negligence on the part of the defendant, the act of Hayes in striking the match "which ignited the gas was an intervening rather than a concurring cause of the injury.

Liability of the defendant is asserted on account of the use by it — a legitimate use without negligence — of a dangerous substance, which, by being ignited, caused the injury. In support of this contention, learned counsel for the plaintiff invoke the rule announced by the English court in the case of Fletcher v. Rylands, L. R. 1 Exch. 265, 1 Eng. Rul. Cas. 235. The facts of the case just cited were entirely different from the present case, in that the injury resulted from the act of the defendant in constructing on its own land a reservoir for impounding water by artificial means, and the court held that the defendant was responsible for damages to an adjoining mine on account of the escape of the water. The doctrine of that case has not been generally accepted in this country, and we think that in its full scope it is directly in conflict with the decisions of this court, for we have held that liability is not incurred by the legitimate use of a dangerous substance unless there is negligence, either in its use or in failing to guard against injury. S. W. Tel. & Telephone Co. v. Beatty, 63 Ark. 65; S. W. Tel. & Telephone Co. v. Bruce, 89 Ark. 581; Pittsburg Reduction Co. v. Horton, 87 Ark. 576; St. L. & S. F. R. Co. v. Williams, 98 Ark. 72.

Decisions of this court (Holt v. Leslie, 116 Ark. 433, and Field v. Viraldo, 141 Ark. 32) declaring liability on account of permitting vicious animals to run at large, do not, as contended by counsel for plaintiff, constitute a recognition or adoption of the rule announced in Fletcher v. Rylands, supra. We think, though, the cases have no application to the principle upon which liability or non-liability under the present state of facts may exist.

The facts in this case are unusual, and therefore we find no case similar to it in the books, but in the consideration of settled principles of law which are applicable in determining the question of liability upon these facts, we find no principle which would justify the imposition of liability on the defendant.

That being true, the court erred in submitting the case to the jury and in failing to set aside the verdict of the jury.

The case being fully developed, no useful nurpose would be served in sending it back for a new trial, so the judgment is reversed, and judgment will be rendered here dismissing the action.

Hart, J.,

(dissenting). Judge Humphreys and myself ate of the opinion that the jury would have been justified in finding that the Constantin Refining Company was guilty of negligence in allowing gas to escape from its land through the fissures in the earth, and that this negligence, concurring with the negligence of Hayes in lighting a match near the mouth of the crater, caused the explosion which resulted in the death of Mary Martin.

It is true that the Constantin Refining Company had a right to drill for oil on the land it had leased; but it was its duty to use every reasonable precaution suggested by the experience and the known dangers of the subject to guard against the escape of gas. The jury might have found that, if the company had used due diligence' in drilling its well, it might have fitted the casings together so that gas could not have escaped. The company knew, or at least is chargeable with knowledge, that in drilling its well gas was likely to rise and escape through apertures in the earth if the well casings were not fastened together tightly.

In other words, the jury might have found that by reason of defects in the materials used, or the manner of construction of the casings in the ,oil well, that gas escaped therefrom through crevices in the earth to the adjoining land.

Defendant was charged with the knowledge that the escaping gas was a subtle and highly explosive agency. The gas field in question was a new one, and the notoriety attending the escaping gas drew a crowd of sightseers. The concurrence of the presence of gas at the opening in the earth and the lighting of the match by Hayes caused the explosion. In such cases the injured party has a cause of action against either of the 'wrongdoers, or both, at his election.


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    Gunter v. Ludlam.
    Opinion delivered October 16, 1922.
    1. Mechanics’ liens — prior lien of vendor. — Where persons fur-were not merely claiming a lien on the building itself, under nishing labor and materials for the construction of a building Crawford & Moses’ Dig., but also claiming a lien on the land, " the owner of the land who had placed the party contracting for the building in possession under a contract of sale had a superior lien for the purchase price, though he knew that the labor and materials were being furnished, as the mechanics’ lien is subject to prior incumbrances.
    2. Subrogation — mechanics’ lien. — The fact that a borrower used money loaned to pay persons having a mechanics’ lien does not subrogate the lender to such lienor’s rights.
    Appeal from Sebastian 'Chancery Court, Fort Smith District; J. V. Bourlmd, Chancellor;
    reversed and affirmed.

      Geo. W. Dodd and I. G. Neal, for appellant.
    The court, erred in decreeing to the lumber company and the interveners a lien upon the fee of the lots superior to the rights of appellant. 0. & M. Dig., sec. 6909; 57' Ark. 481; 5 Ark. 217.
    The interest of a vendor of land who makes an executory contract.of sale is not liable to a mechanics’ lien merely because the vendee erected a building or made improvements thereon. 18 R. G. L. 896.
    A purchaser, under a contract of sale, who is in possession, can render his interest therein subject to a mechanics ’ lien. 27 Oyc. 59. A vendor has no contractual relation with the lien claimant. 18 R. C. L. 897. Something more than mere inactive consent is necessary in order that a lien may be acquired against the owner. 126 111. 72; 18 N. E. 275; 34 Utah 213; 97 Pac. Ill; 2 Dough (Mich.) 54; 38 Mich. 587; 38 Neb. 691; 41 Am. St. Rep. 767; 23 L. R. A. 600, note; Gooh v. Moore, ms. op.
   McCulloch, C. J.

John Gunter and M. ~W. Pate, the appellants, owned a certain tract or lot of real estate in the city of Fort Smith, and they entered into a written contract with one of the appellees, Ludlam, for the sale of the property at the price of $1,000, of which $300 was to be paid in cash and the remainder in monthly installments. The contract was in duplicate, signed by each of the parties, but Ludlam only paid $200 of the cash consideration, and his copy of the contract was retained by appellants until the remaining' sum of $100 should be paid. Ludlam was placed in possession of the property, but failed to pay the said sum of $100 and defaulted in monthly installments. A clause in the contract provided for acceleration of the maturity of all installments in the event of default in payment of any installment. Ludlam erected a house on the lot and purchased material from the Bell Lumber Company, appellees, and other parties, who claim liens on the property for labor and material furnished in the construction of. the building. Ludlam borrowed the sum of $207.60 from appellant Gunter to use in paying for the foundation of the building.

This action was instituted by the two appellants, Pate .and Gunter, and they seek to foreclose their lien as vendor for the unpaid purchase price. Gunter also claims a mechanics’ lien by way of subrogation to the rights of the person who built the foundation of the house, and who,- it is alleged, was entitled to a lien. The suit was against Ludlam and his .wife, and also against the Bell Lumber Company and other parties asserting liens against the property.

On the hearing of the cause before the chancellor, there was a decree against Ludlam, in favor of the appellants, for the amounts claimed by them, respectively, and also a decree in favor of each of the parties asserting liens for labor and material furnished in the construction of the building, and the property was ordered sold to discharge the liens of the parties, but the court declared the liens of the appellee claimants superior to the liens of appellants, and an appeal has been duly prosecuted to this court.

The court was clearly in error in its decree subordinating the lien of -appellants to the lien of those who furnished labor and material for the construction of the building. Appellants, having placed Ludlam in possession under a contract of sale,- were in the attitude of vendors who had conveyed property and had accepted a mortgage back as security -for the debt.

The statute (Crawford & Moses’ Dig., sec. 6911) gives priority to liens for labor or material only against other incumbrances 'Created, after the commencement of the improvement, and in effect subordinates the lien to prior incumbrances by way of mortgage or otherwise.

The statute gives mechanics 'and furnishers of material liens on a building erected on land (Crawford & Moses’ Digest, sec. 6909), and provides that such liens may be enforced by sale and removal of the building, but appellees are not asserting a lien merely on the building, and the decree of the court did not so confine it. A superior lien of appellees was decreed against the land itself.

There is no element of estoppel in the present case which would bar appellants from asserting the superiority of their lien. Mere knowledge on their part that labor and material were furnished for the construction of the building, or even their consent thereto, in the absence of some affirmative act which indicated a willingness to subordinate their claim to that of the subsequent lienors was not sufficient to operate as an estoppel.

Ludlam was in possession of the property as a mortgagor and had an alienable interest upon which he could create a lien, therefore his construction of the building and the creation of a lien for labor and material was referable to his own interest in the property, and acquiescence on the part of appellants as mortgagees did not constitute such an affirmative act as would operate as an estoppel to the claim of a superior lien.

We are unable to discover' any grounds upon which appellant Gunter can assert a lien on the property for the amount loaned to Ludlam. He merely made a loan of money to Ludlam, and that did not constitute a lien nor operate as a subrogation on his part to the rights of the lienors whose claim was paid by the use of the funds borrowed.

The decree is therefore affirmed as to the separate claim of appellant Gfunter, but it is reversed as to the vendor’s lien of appellants, with directions to enter a decree declaring their lien superior to all others.