author: Humphreys, J.

text:
    Robertson v. Cooper.
    Opinion delivered May 22, 1922.
    1. Guardian and ward — exchange of minor’s land — jurisdiction. —Probate courts are .without jurisdiction to order the lands of a minor exchanged for other lands; hence such an order is. Void,

      2. Cancellation of instruments — laches.—A suit brought on April 5, 1916, to cancel a deed executed on June 7, 1880, by plaintiff’s guardian purporting to convey plaintiff’s half interest in some land which had been assigned as dower to plaintiff’s mother, who died in August, 1915, was not barred by laches or limitation, as plaintiff’s cause of action did not accrue until her mother’s death.
    3. Guardian and ward — ratification by ward of unauthorized exchange. — In an action brought in 1916 to cancel an unauthorized deed executed by plaintiff’s guardian in 1880 in exchange for other lands, where plaintiff .attained her majority in 1884, sold part of the realty received in the exchange, and continued to use and enjoy part of it for 35 years, held that she ratified the •unauthorized sale because, although she had full knowledge of the facts, she did not offer to return the property within a reasonable time after reaching majority.
    Appeal from Lee Chancery Court; A. L. Hutchins, Chancellor;
    affirmed.

      Mann & McCulloch, for appellant.
    1. The probate court was without jurisdiction to authorize the guardian to exchange the lands of the ward for other land; and, since this is true, and the alleged exchange of land was never reported to or approved by the probate court, his deed to Hutton, appellee's source of title, was void. 71 Ark. 218; 33 Id. 425; 47 Id. 460; 95 Id. 164; Id. 256; 61 Id. 80.
    2. The deed being absolutely void, and not merely voidable, the defenses of laches, estoppel and ratification are not available to appellees to divest the title out of the appellant. 108 Ark. 154.
    3. It was not within the power of appellant to repudiate effectively the exchange prior to the termination of the life estate, nor, prior to that time, was it incumbent on her to take action. 123 Ark. 35; 52 Id. 341.

      Daggett <& Daggett, for appellees.
    1. Appellant reached her majority in 1884, when, notwithstanding coverture and outstanding dower, it was her privilege to affirm or repudiate the guardian’s deed made for her. Her actions subsequent to that date amount to an affirmance. 95 Ark. 74; 122 Id. 530; 103 Id. 312; 115 Id. .1,

      2. Having accepted the benefits of the deed from Hutton by appropriating the proceeds from the sale of part of the lands and retaining certain of the tracts conveyed to her, appellant cannot now repudiate her contract without offering to restore the consideration, at least to the extent the same now remains in her hands. 14 R. C. L. § 20; 39 Ark. 293; 51 Id. 294; 52 Id. 150; Id. 207; 136 Id. 237; 90 Id. 351.
    3. Appellant is barred by laches in failing to bring suit within a reasonable time after becoming of age. 121 Ark. 615.
   Humphreys, J.

This is an appeal from a decree of the Lee Chancery Court on appellee’s cross-bill, canceling the purported right, title and interest of appellant in and to the southwest quarter of section 9 and the north half of the south half of section 8, township 3 north, range 2 east, in said county, and setting aside same as- a cloud on appellee’s title thereto, which was rendered upon the following agreed statement of facts:

“Abner Beard, from whom all parties deraign title, died intestate in the year 1872, leaving surviving him his widow, Mary C. Beard, and two children, Ethel A. Beard, plaintiff in this cause, and James N. Beard as his sole heirs at law. At the date of his death Abner Beard was seized in fee simple of the lands sued for, together with various lands in Lee County. After the death of the said Abner Beard the lands sued for, together with other lands, were assigned to the widow, Mary O. Beard, as her dower, by proper order of the Lee Probate Court. That Ethel A. Beard, plaintiff in this cause, and Jas. N. Beard each inherited an undivided one-half interest in fee in all the lands owned by Abner Beard at the date of his death, subject to the rights of creditors of his estate and the dower right of his widow, Mary C. Beard, in certain lands.
“After the death of the said Abner Beard his widow, Mary C. Beard, qualified as administratrix and so continued until her marriage with S. C. Buckingham, who then qualified as administrator de bonis non under orders of the Lee Probate Court, and as such administrator continued until the date of the institution of the proceedings in the Lee Chancery Court by Ethel Beard, a minor, by her next friend, H. N. Word.
“On December 17, 1872, Jas. N. Beard, one of the surviving heirs, conveyed h'is undivided one-half interest in all the lands of his father to Mary C. Beard. On January 7, 1880, Mary C. Beard, then Buckingham, conveyed her dower interest and the undivided interest acquired from Jas. N. Beard to H. N. Hutton.
“On January 5, 1880, Ethel A. Beard, then a minor over the age of 14 years, made application to the Lee Probate Court for the appointment of a guardian, and thereupon Luther Benham was duly appointed guardian of the said Ethel A. Beard. The- said Luther Benham duly qualified as guardian and entered upon the discharge of his duties. On the same day Luther Benham as such guardian filed his petition in the Lee Probate Court praying the conveyance of the reversionary interest of his ward in the lands sued for to H. N. Hutton, in consideration of which the said H. N. Hutton would convey his interest in other lands to the said Ethel A. Beard.
“The probate court entered an order authorizing the conveyance. Thereupon the said guardian conveyed all interest of the said Ethel A. Beard in and to the lands sued for to H. N. Hutton. On the same day H. N. Hutton conveyed to the said Ethel A. Beard all his interest in the lands acquired by his deed from Mary C. Beard, with the exception of the lands sued for herein. It is agreed that the said deed is in due legal form and. is sufficient to vest the title to the lands therein described, subject only to the rights of creditors of Abner Beard, deceased, in Ethel A. Beard.
“On November 17, 1877, the said Ethel A. Beard, by her next friend, filed her complaint in the'Lee Chancery Court against S. C. Buckingham, as administrator de bonis non, and certain creditors of the said estate, in which she prayed that the administration be opened and that said accounts be corrected, and that a receiver be appointed .to take charge and manage said estate. That H. B. Derrick was by order of said court appointed receiver. On May 11,1878, the chancery court directed the receiver to pay the plaintiff, Ethel A. Beard, the sum of $80 for board, tuition and clothing, which was. done. That upon decree of -chancery court the said receiver advertised all the lands belonging to Abner Beard, at date of his death, for sale for the payment of debts of said estate. That said sale was duly held and on May 9,1882, said receiver filed his report of sale and said report was duly approved and confirmed. That at said sale Luther Benham, guardian, purchased the NE !4 14-3-2, and the said Ethel A. Beard has been the owner and in possession of said land since the date of sale. That on May 17, 1883, the said receiver made his final report in said cause, and upon order of the court, paid over to Luther Benham as guardian of Ethel Beard the funds then remaining in his hands, and said receiver was then discharged..
“That partition of lands ordered by the probate court in Lee County, between Ethel Beard and H. N. Hutton, was never confirmed by said court, but the said guardian subsequently filed his first, second and final settlements, which were approved, and guardian finally discharged on May 29, 1884.
“The lands conveyed by Hutton to Ethel A. Beard were sold by said receiver in the manner hereinbefore set out for the purpose of satisfying the claims of creditors of the estate of Abner Beard, except the following lands: NE of 4-3-2 was not sold, and has been in the actual possession of the plaintiff from the date of her purchase from Hutton until the present time, claiming and receiving the entire rents and profits therefrom. The east half of S. E. of 14 was not sold by the receiver, but was sold to Y. M. Harrington on June 11,-1883, for taxes of 1882. The frl. part of S. E. of 13-3-2 was not sold by' said receiver, but was sold,and conveyed by a warranty deed to W. A. Andrews by Ethel Beard (then Robertson) on February 21, 1890.
“H. N. Hutton took possession of the lands sued for during the year 1880, and on January 8, 1880, sold and conveyed the same to R. M. Banks. That on February 22, 1886, R. M. Banks conveyed said lands to David H. Stayton. That on January 26, 1892, David H. Stayton conveyed said lands to Julius Lesser. That Julius Lesser, on September 12, 1906, conveyed said lands to G. W. Cooper.
“It is agreed that all of said deeds are in due and legal form and properly executed. That Hutton and his .grantees have held actual, open, notorious and 'peaceable possession of said lands, claiming under said deeds from the dates thereof to the present time, under the belief that they were owners thereof; that all of said conveyances are bona fide,- and that G. W. Cooper purchased under the belief that the order of the Lee Probate Court authorizing the conveyance of Ethel Beard to H. N. Hutton was a good and valid order.
“It is agreed' that George W. Cooper has departed this life, leaving surviving him his widow, Tina Cooper, and his minor daughter, Jessie Cooper; that the said Tina Cooper afterwards married one Taggart and thereafter was adjudged insane, and that Elgan C. Robertson is her duly appointed guardian. That Chas. McKee is the duly appointed and acting administrator of the estate of George W. Cooper, and that D. S. Clark is the duly appointed, qualified and acting guardian of the person and estate of Jessie Cooper, minor.
‘ ‘ That Mary C. Buckingham, widow of Abner Beard, died in August, 1915. That Ethel A. Beard, now Robertson, plaintiff herein, was born October 25, 1866; that she married E. D. Robertson on May 16, 1888, and has been ever since and is now a married woman; that she lived in Lee County continuously from the date of her birth until September, 1887. at which time she moved to Wynne, Arkansas, and resided there until October1, 1915; when she returned to Lee County, where she has since resided.”

Before the submission of the cause to the court the following substitution of parties was made: The death of G-. W. Cooper, party defendant, was suggested to the court, and the cause was revived in the name of Tina (Cooper) Taggart, widow of Gr. W. Cooper, deceased, and Jessie Cooper, his sole heir at law. Thereafter Tina (Cooper) Taggart was judicially declared insane, and upon proper notice Elgan C. Robertson, her duly appointed guardian, was made party defendant. The said E. C. Robertson, guardian of Tina (Cooper) Taggart, filed answer prior to the submission of this cause. D. S. Clark, legally appointed guardian of Jessie Cooper, entered his appearance and filed answer, in which he adopted the answer previously filed by (j. W. Cooper. Chas. McKee, duly qualified and acting administrator of the estate of G-. W. Cooper, deceased, entered his appearance and filed answer, adopting the answer previously filed by Gr. W. Cooper.

The agreed statement of facts reflects that the undivided one-half interest in the lands sought to be recovered by appellant was inherited by her from her father, who died intestate in the year 1872, leaving him surviving his widow, Mary C. Beard, and his two children, appellant and James N. Beard, his sole heirs at law; that the lands in question, along with other lands belonging to the estate, were set aside to the widow as her dower interest.therein; that H. N. Hutton acquired the interests of James N. Beard and Mary C. Beard by purchase January 7, 1880, and procured a deed from appellant’s guardian to her undivided one-half interest therein, in exchange for Hutton’s undivided one-half interest in 1321 acres of other lands formerly belonging to said estate, which Hutton had also acquired by purchase from Mary C. Beard and James N. Beard; that Gr. W. Cooper obtained title to the lands in question, through mesne conveyances, from H. N. Hutton; that all the lands conveyed by Hutton to appellant in exchange with her guardian for her undivided one-half interest in the lands in question, except the northeast % of section 14 and the east half of the southeast % of section 14, and a fractional five acres of the southeast % of section 13, township 3 north, range 2 east, in said county, were sold under an order of court to pay the indebtedness against said estate; that in 1890 appellant sold said east half of the southeast % of section 14 and a fractional part of the southeast % of section 13 to W. A. Andrews, and that she had retained and enjoyed the benefit of the said northeast 14 of section 14; that appellant attained her majority on the 25th day of October, 1884, and married May 16, 1888; that her mother, Mary C. Beard, died in August, 1915. This suit was instituted on the 5th day of April, 1916.

The questions presented on the issues joined for determination on this appeal are, the validity of the deed to the lands in question executed by appellant’s guardian to H. N. Hutton, and, if void, whether appellant was barred by limitation and laches from a recovery thereof, and, if not, whether she impliedly ratified the void sale of said lands by her guardian by retaining a part of the lands acquired by her in exchange therefor.

(1) Under the rule announced in Meyer v. Rousseau, 47 Ark. 460, and approved in McKinney v. McCullar, 95 Ark. 164, probate courts are without jurisdiction in this State to order an exchange of a minor’s lands for other lands. The exchange of appellant’s undivided one-half interest in the lands in question to H. N. Hutton by her guardian was therefore without authority and void.

(2) Appellant was not barred by limitations or laches, as her right of action for recovery of the lands did not accrue until her mother’s death in 1915, said lands having been assigned, along with other lands, to her mother as her dower in the estate of appellant’s father.

(3) This court is committed to the doctrine that a ward will ratify the unauthorized acts of his guardian bv long acquiescence therein, provided the ward has full knowledge of all facts and circumstances surrounding the transaction. The following announcement, in substance, was made by this court in the case of Davie v. Davie, (post p. 633, quoting syllabus 2): “Where a guardian sells the land of an infant ward without authority, and the money is applied to the ward’s use, the fact that the ward does nothing to disaffirm the sale for nearly seven years after she becomes of age must be deemed a ratification of the sale.” The principle with reference to the affirmance or disaffirmance of infants’ contracts when they attain their majority was applied by this court in the last cited case to the unauthorized or void act of a guardian relating to a contract for the conveyance of his ward’s real estate. Appellant, who attained her majority in 1884, should have, within a reasonable time thereafter, offered to return the property in her possession at that time, which she had received in exchange for the property in question. Instead of doing this, she sold a part of the real estate and retained 160 acres, and for more than 35 years has enjoyed the use and benefit thereof. By these acts she must be held to have ratified the unauthorized and void sale by her guardian of the lands in question.

No error appearing, the decree is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Moore v. State.
    Opinion delivered May 22, 1922.
    1. Intoxicating liquors — -“still” defined. — Under Acts 1921, No. 324, §§ 2, 3, prohibiting the possessing of a still, the word “still” is used in its broad sense, including any device used for separating alcoholic spirits from fermented substances, whether connected up or not, if the various parts had been assembled for the production of alcoholic spirits.

      2. Intoxicating liquors — possession op still — evidence.—Evidence showing that defendant had all the parts of a still unassembled in a smokehouse and 18 gallons of mash with a sack of malt in his kitchen, supported a .conviction of possessing a still.

      3. Intoxicating liquors — failure to register still — burden of PROOF. — Under Acts 1921, No. 324, § 2, prohibiting the keeping of a still without registering it, where the indictment alleged failure to register, the State is not required to prove this issue, but, being a negative allegation particularly within defendant’s knowledge, he should disprove it, notwithstanding § 5 of the act provides that a certificate of the revenue collector may be introduced to show the status of the still.
    Appeal from Columbia Circuit Court; G. W. Smith, Judge;
    affirmed.

      J. M. Kelso aud McKay & Smith, for appellant.

      J. S. Utley, Attorney General, Elbert Godwin and Wm. T. Hammock, Assistant, for appellee.
   Humphreys, J.

Appellant was indicted, tried and convicted in the Columbia Circuit Court for the crime of keeping in Ms possession a stillworm or still without registering- the same with the proper United States officer, contrary to section 2 of act 324 of the Acts of 1921, and as punishment therefor was sentenced to serve two years in the State Penitentiary. Prom the judgment of conviction an appeal has been duly prosecuted to this court.

The record disclosed that the sheriff and his deputy searched the home of appellant and found a trough, with a little galvanized pipe run through it, and a tin can covered up with cloth in his smokehouse, and found in his kitchen 18 gallons of mash, with a small sack of malt in it. When the trough, with the galvanized pipe run through it, was connected with the can, it made what is commonly known as a “wildcat” still. At the time of the discovery the trough was not connected with the can. When the discovered parts were connected, whiskey could be made with it; that is, it was a contrivance or device which, when properly used, would separate alcoholic spirits from fermented substances. Both the sheriff and the deputy testified that while the device, when connected up, was not an old-time still; it was the character of still used for making whiskey by the “wildcatters” in Columbia County. No evidence was introduced by the State showing that the still was not registered with the proper officers of the United States. The indictment, however, alleged that it was not registered.

Appellant first insists that the judgment should be reversed because the section of the statute under which appellant was indicted had reference to a real still or stillworm, and not to articles which might be connected up and used as a substitute for a real still or stillworm. The meaning ascribed to the section by appellant would indeed be very technical. The intention of the Legislature is reflected in section 3 of the act, which, among other things, provides that “any device or any process which separates alcoholic spirits from any fermented substance, shall be regarded as a distillery.” We think the Legislature used the word “still” in its broad sense, and intended to include any device commonly used for separating alcoholic spirits from fermented substances, whether connected up or not, if the various parts had been assembled for the production of alcoholic spirits. Of course, the act was not intended to reach and punish individuals who liad in their possession articles which might be converted into a still, unless the articles had been assembled for the purpose of separating alcoholic spirits from fermented substances. In the instant case the evidence showed that the small galvanized iron pipe had been run through the trough and was ready to be connected with the tin can. In fact, the several parts were connected and exhibited to the jury. These parts were found together in appellant’s smokehouse, concealed under a cloth. Eighteen gallons of mash, with a small sack of malt in it, was found in appellant’s kitchen. These were facts from which the jury might reasonably infer that the parts had been assembled, and partly connected, for the purpose of producing alcoholic spirits. The evidence was therefore sufficient to show that appellant had a still, within the meaning: of the statute referred to, in his possession.

Appellants also insists upon a reversal of the judgment because the State failed to prove that the still was not registered with the proper United States officer. This was a negative averment, particularly within appellant’s knowledge, and should have been disproved by appellant himself. Greenleaf on Evidence, sec. 79; Bishop on Statutory Crimes (3rd-Ed.), sec. 1051; Hooper v. State, 19 Ark. 143; Williams v. State, 35 Ark. 430; Edgar v. State, 37 Ark. 481; Josey v. State, 88 Ark. 269. It is true, section 5_ of the act referred to provides that a certificate of the revenue collector may be introduced as evidence showing the status of the still, but this section was not intended to change the well established rule in relation to the burden of proving a negative allegation in an indictment within the particular knowledge of an accused. It simply provided a method by which the accused could disprove the allegation; or, if he disproved it in some other way, a method by which the State could establish the truth of- the allegation.

No error appearing, the judgment is affirmed.


author: McCulloch, C. J.

text:
    Galloway v. Stallings.
    Opinion delivered May 29, 1922.
    Corporations — liability of officers — failure to file statement.— An unverified statement of the affairs of a corporation filed in the county clerk’s office is not a sufficient compliance with Crawford & Moses’ Dig., §§ 1715, 1725, 1726, requiring the filing of a verified statement annually, and does not relieve the president and secretary from personal liability for the debts of the corporation contracted during the period of default.
    Appeal from Monroe Circuit Court; George W. Clark, Judge;
    affirmed.

      S. S. Jefferies, for appellant.'
    The appellants discharged their full duty when they deposited the report with the proper official. 28 Ark. 244; 128 Ark. 59; 168 Pac. 40.
    The report filed by the appellants was a full compliance with sec.. 1715 of C. & M. Digest, in that it gave the information required by the statute. 124 Ark. 495; 96 Ark. 268; 123 Ark. 226.

      In the absence of the president it was proper for the vice-president to sign the report. 79 Ark. 465.
    The mere failure to attach the corporate seal to a report is not of substance, but of form merely. 109 Pac. 952.

      Gregory & Holtsendorf and Bogle & Sharp, for appellee.
    The statute was not complied with. 40 N. Y. S. 1081. Lack of the verification required by the statute invalidates the report. 14a C. J. 416.
    The certificate required must be true and correct. 92 Ark. 416.
    The report must be signed and verified by the officers designated by the statute. 7 R. C. L. 515; 92 Ark. 266; 79 Ark. 465; 11 Ark. 37; 136 Ark. 414; 14a C. J. 214.
   McCulloch, C. J.

Appellants,- O. C. Galloway and F. M. Kennedy, are president and secretary, respectively, of the Galloway-Kennedy Company, a domestic corporation, domiciled in Monroe County, and appellee is a creditor of said corporation for indebtedness which arose during the year 1920.

This is an action instituted by appellee against appellants to recover the amount of said indebtedness, and liability of appellants for the debts of the corporation is asserted on account of their alleged failure, as officers of the corporation, to comply with the statute by filing a verified annual report of the affairs of the corporation. The statute on this subject reads as follows:

“The president and secretary of every corporation organized under the provisions of this act shall annually- make a certificate showing the condition of the affairs of such corporation, as nearly as the same can be ascertained, on the first day of January or of July next preceding the time of making such certificate, in the following particulars, viz: The amount of capital actually paid in; the cash value of its real estate; the cash value of its personal estate; the cash value of its credits; the amount of its debts; the name and number of shares of each stockholder; which certificate shall be deposited on or before the fifteenth day of February or of August with the county clerk of the county in which said corporation transacts its business, who shall record the same at length in a book to be kept by him for that purpose.” Crawford & Moses’ Digest, sec. 1715.
“The certificates required by sections 1711, 1715, 1721 and 1723, except certificates of transfers of stock, shall be made under oath or affirmation by the person subscribing the same; and if any person shall knowingly swear or affirm falsely as to any material facts, he shall be deemed guilty of perjury, and be punished accordingly.” Id. sec. 1725.
“If the president or secretary of' any such corporation shall neglect, fail or refuse to comply with the provisions of section 1715, and to perform the duties required of them respectively, the person or persons so neglecting, failing or refusing shall jointly and severally be liable to an action founded on this statute for all debts of such corporation contracted during the period of any such neglect or refusal, and shall be deemed guilty of a misdemeanor, and upon conviction shall be fined in any sum not to exceed five hundred dollars, and each and every day such person or persons shall so neglect to comply with the provisions of said section 1715 or fail to refuse to perform said duties, shall constitute a separate offense. Act May 6, 1909.” Id. sec. 1726.

It appears from the undisputed evidence that Kennedy was vice-president of the corporation, as well as secretary, and that in the absence of appellant Galloway, the president, he caused one of the employees of the cor-. poration to prepare a statement of the affairs of the corporation in accordance with the terms of the statute, and signed the name of the president thereto and his own name, and delivered the same to a lady employed in the office of the county clerk, who was not, however, deputized by the clerk; but the statement was not verified bv an affidavit of any of the officers of the corpora-' tion, or ¿my other person. The statement so delivered at the clerk’s office was not filed and was not noted on the record in the office, but the employee who received it put it away among the corporation papers in the office, and it was later discovered there by the clerk during the progress of the trial of this cause.

The sole question presented in this case is whether or not there was sufficient compliance with the statute by delivering at the clerk’s office in this manner an unverified statement of the affairs of the corporation so as to avoid personal liability on the part of the president and secretary.

We are of the opinion that the statute was-not complied with, and that liability of the officers exists under the statute. This conclusion is in accordance with the plain letter of the statute, which provides that the certificate “shall be made under oath or affirmation by the person subscribing the same,” and that upon failure to perform the duty enjoined by the statute the president and -secretary “shall jointly and severally be liable to an action founded on this statute for all debts of such corporation,” etc. The certificate is incomplete without the affidavit; it is no certificate at all in a legal sense, and therefore the filing of an unverified certificate is tantamount to filing none at all. The purpose of the statute was to apprise persons dealing with the -Corporation of information as to its affairs, but actual lack of information on the part of a creditor is not essential to liability under this statute, which imposes the liability, regardless of the fact that the creditor may or may not have had actual information concerning the affairs of the corporation.

By failing to comply, with the statute, the ■ officers mentioned assumed legal liability for the debts of the corporation which accrued during the period of such default.

The statement delivered by appellants at the office of the county clerk was not accepted and filed as a valid certificate under the statute by the clerk or any deputy. Of course, if the certificate had been in legal form, appellants would have discharged their full duty 'by delivering it at the clerk’s office to some one in.charge thereof, but before claiming immunity from liability they must show that the certificate was in form and substance in accordance with the requirements of the statute. Not having complied with the statute, appellants rendered themselves liable for the debt.

Judgment affirmed.


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

text:
    Crosby v. State.
    Opinion delivered May 29, 1922.
    1. Intoxicating liquors — repeal op state law. — The State statute prohibiting the sale of liquor was not repealed or superseded by the Eighteenth Amendment to the Constitution of the United States or by the Volstead Act.
    2. Criminal law — expression op opinion by judge. — The provision of Const., art. 7, § 23, that “judges shall not charge juries with regard to matters of fact, but shall declare the law,” is mandatory, and any expression or intimation by the judge of an opinion as to controverted facts is thereby forbidden.
    3. Criminal law — expression op opinion by judge. — Where a witness for the State, in a prosecution for selling intoxicating liquors, denied that defendant had sold liquor to him within three years before the return of the indictment, and denied that he had so testified before the grand jury, an order of the court, made in the jury’s presence, for the arrest of such witness for perjury was an expression by the court as to the facts which the jury must have regarded as indicating the court’s belief that defendant had sold whiskey to the witness, and requires a reversal of the conviction.
    4. Criminal law- — prejudicial error. — The prejudice resulting to accused from the court’s action in ordering the arrest for perjury of a witness who had denied that accused had sold him any whiskey was not cured by the court’s excluding from the jury an argument of the prosecuting attorney that the witness had perjured himself.
    5. Criminal law — presumption as to erroneous rulings. — Where an erroneous ruling of the trial court might result in prejudice, the judgment must be reversed unless it affirmatively appears that there was no prejudice.

      Appeal from Jackson Circuit Court, Dene H. Coleman, Judge;
    reversed.

      G. A. Hillhouse and Gustave Jones, for appellant.

      J. 8. Utley, Attorney General, Elbert Godwin and Wm. T. Hammoch, Assistants, for appellee.
   Wood, J.

1. Appellant was indicted for the crime of selling and being interested in the sale of intoxicating liquors. He demurred to the indictment on the ground that the court was without jurisdiction because the 18th amendment to the Federal Constitution and the Federal statute (Volstead act) superseded the State law under which appellant was indicted. The court overruled the demurrer.

This court, after an exhaustive review of the authorities upon the subject, has decided the precise question in the recent case of Alexander v. State, 148 Ark. 491, holding that the 18th amendment and the Volstead act “did not impair the integrity of any existing State statute to enforce prohibition, nor interfere with the enactment of any future legislation by the State for that purpose.” This means, of course, that the State statute prohibiting the sale of liquor is not repealed or superseded by the 18th amendment or the Volstead act; for, if this amendment and this act superseded the State statute prohibiting the sale of liquor, then the integrity of such statute is not only impaired but destroyed. In Alexander v. State, supra, we concluded that the statute under which the appellant was convicted “is a valid and subsisting law.” We adhere to that decision.

Witness Smith was called as a witness for the State and testified that he never purchased any whiskey from the appellant on the 10th of September, 1921, or at any other time within three years before the filing of the indictment. The witness was handed a statement purporting to be his testimony taken before the grand jury, and he testified that he signed the statement; that he read the same or it was read to him before he signed it. The witness stated that' he testified before the grand jury that three or four years ago he bought some whiskey from the appellant, but that he did not buy any whiskey from him on the 10th of September, 1921. Thereupon, the record shows the following occurred: “By Mr. Williamson (prosecuting attorney). I ask to have this witness held for perjury. This is all the State can do.” By the court: “All right, the witness may stand aside. Mr. Sheriff, you will hold this witness under a thousand dollar bond for perjury; let the prosecuting attorney file information against him. Tie is in the custody of the sheriff.” (To which action, ruling and statements on the part of the prosecuting attorney and on the part of the court, in the presence and hearing of the jury, the defendant at the time excepted, and asked that his exceptions be noted of record, which is accordingly done).

The bill of exceptions further recites as follows:

“And thereupon, during the closing argument of the proscuting attorney, Hugh U. Williamson, and after the defendant’s counsel had made their argument to the jury, Mr. Williamson, the prosecuting attorney, stated to the jury among other things in his argument, as follows: ‘Here is Mr. Crosby, he has been engaged in selling liquor out there for a good while, for a long time, and he has gotten caught.”

Objection by counsel for the defendant to the above statement, and counsel for defendant requests the court to instruct the jury not to consider such argument, and to rebuke the prosecuting attorney for making such statement. Which the court fails to do, but remarks: ‘The jury will have to be the judges of the evidence.’ . (To which refusal of the court to so instruct the jury and to rebuke the prosecuting attorney, the defendant at the time excepted and asked that his exceptions be noted of record, which is accordingly done). And thereupon, during the further argument, in closing for the State and when the defendant had no opportunity for reply, the prosecuting attorney, among other things, stated to the jury as follows: ‘You can see the straits the defendant has gone to when you saw the old man Smith perjure himself here. ’ Objection by counsel for defendant to the above argument by the prosecuting attorney sustained by the court, and the court told the jury that the above was improper argument on the part of the prosecuting attorney. (But owing to the prejudicial nature of such argument, regardless of the court’s ruling and instruction to the jury, the defendant desires to except to the argument, and asks that his exceptions be noted of record, which is accordingly done).

“And thereupon, the prosecuting attorney during the further argument for the State in closing his case and when the defendant had no opportunity for replying, made, among other statements, the following: ‘Old man Smith bought some whiskey from him (defendant) away back sometime ago, and that goes to establish his reputation.’ Objection by counsel for defendant to the above statement by the prosecuting attorney overruled by the court. (To which ruling of the court and to which argument of the prosecuting attorney the defendant at the time excepted and asked that his exceptions be noted of record, which is accordingly done).”

Section 23 of article. 7 of our Constitution provides that “judges shall not charge juries with regard to matters of fact, but shall declare the law. ” C. & M. Digest, p. 79. This is a mandatory provision of the Constitution, and the numerous cases of this court collated by the digesters under the above section show how important it is in the administration of justice under our juridical system that trial judges observe the above mandate of the Constitution. Excerpts from one or two of the cases will suffice to show what the mind of the court has been, and still is, upon the above provision, and that any departure from it by trial judges must inevitably result in a reversal of their judgments.

In State v. Wardlaw, 43 Ark. 73, Justice Smith, speaking for the court, said: “The circuit court committed an error in advising the attorney for the- State, in the presence of the jury, to drop the prosecution for want of evidence. Our Constitution forbids judges to charge juries with regard to matters of fact.”

Judge Battle, speaking for the court, in the case of Sharp v. State, 51 Ark. 147, said: “In all trials the judge should preside with impartiality. In jury trials, especially, he ought to be cautious and circumspect in his language and conduct before the jury. He should not express or intimate an opinion as to the credibility of a witness or as to controverted facts. For the jury are the sole judges of fact and the credibility of witnesses; and the Constitution expressly prohibits the judge from charging them as to the facts. The manifest object of this prohibition was to give to the parties to the trial the full benefit of the judgment of the jury as to facts, unbiased and unaffected by the opinion of judges. Any expression or intimation of an opinion by the judge as to questions of fact or the credibility of witnesses necessary for them to decide in order for them to render a verdict would tend to deprive one or more of the parties of the benefits guaranteed by the Constitution, and would be a palpable violation of the organic law of the State.”

In Catlett v. Ry., 57 Ark. 461-466, Chief Justice Cockrill, speaking for the court, said: “This provision shears the judge of a part of his magisterial functions, but it confers no new power upon the jury. * * * The Constitution has not altered their province. It commands the judge to permit them to arrive at their conclusion without any suggestion from him as to his opinion about the facts.”

In the recent case of Martin v. State, 130 Ark. 442, a witness whose testimony tended to prove that the appellant was not guilty of the crime charged was arrested in the presence and hearing’ of the jury, by order of the court directing the sheriff to take charge of the witness and hold him to bail in the sum of $500 to answer the charge of giving away whiskey, etc. This court held that the conduct of the court constituted prejudicial error, and we quoted from the case of Golden v. State, 75 Miss. 130, as follows: “It is very easy to order such witness into custody, and to do it ‘immediately,’ without the knowledge of the jury. The testimony in this case is exceedingly unsatisfactory, and, in view of that fact, this action of the court may well have weighed heavily with the jury against the defendant.” In concluding the opinion, we sáid: ‘ ‘ The theory of the court, in ordering a reversal in the cases there cited, is that the verdict of the jury should be made up in every case from the testimony of the witnesses alone, uninfluenced by any act or opinion of the trial judge reflecting his estimate of-the weight and credibility of any testimony.”

The Attorney General contends that Smith gave no testimony that was either favorable or unfavorable to the accused, 'and that, being a witness for the State, his arrest for perjury by order of the court in the presence and hearing of the jury could not have been prejudicial to the appellant. But it occurs to us that the proceedings, reflected by the record as above set forth, must necessarily havé resulted to the prejudice of appellant in depriving him of a fair and impartial trial. After the witness had testified that he told the g’rand jury that he bought some whiskey from appellant three or four years ago, but that he had not bought any whiskey from appellant on the 10th of September, 1921, or any other day in 1921, the prosecuting attorney immediately asked the court to have him arrested for perjury and the court granted the request in the manner recited above in the bill of exceptions, and the prosecuting attorney followed this up in his closing argument with the following comment: “You can see the straits the defendant has gone to when you saw the old man Smith perjure himself here.”

While the court told the jury that the above argument was improper, we are convinced that this ruling of the court was not sufficient to remove the prejudice that may have been created in the minds of the jury by the conduct of the prosecuting attorney and the court itself in causing the arrest of the witness Smith in the presence and hearing of the jury. Taking the whole record of this proceeding, it was clearly calculated to cause the jury to believe that Smith had testified before the grand jury that he had bought whiskey from the appellant on the 10th of September, 1921, or within three years prior to the finding of the indictment, and that on the trial he had committed perjury by testifying to the contrary, and that this was done at the instigation of the appellant. The order of the court directing the arrest of the witness was tantamount to telling the jury that the witness Smith was unworthy of belief and that his testimony before the jury was not entitled to any credit.

It was wholly within the province of the jury to say whether the testimony of the witness as disclosed by his examination at the trial was true or false. They were the sole judges of it, and if they believed it true it was certainly very favorable to the appellant, and' they had the right to accept it. Therefore, the trial judge should not have invaded the province of the jury and should not have told them, in effect, that the testimony of the witness Smith before them was unworthy of belief. The most reasonable and natural inference for the jury to draw from the conduct of the prosecuting attorney and the trial judge, as disclosed by the above record, was that, in their opinion, the testimony of the witness Smith as given before the grand jury, and upon which the indictment was predicated, was true, and that his testimony at the trial was false. Certainly it cannot be said that the jury might not have come to this conclusion, and, if they could have done so, who can say that they did not do so, and who can say that such determination did not enter into and was not reflected by their verdict? Where the effect of an erroneous instruction or ruling of the trial court might result in prejudice, the rule is that the judgment must be reversed on account of such ruling, unless it affirmatively appears that there was no prejudice. No such showing is reflected by this record. Magness v. State, 67 Ark. 595-604-5; St. L. & S. F. R. Co. v. Crabtree, 69 Ark. 134; Neal v. Brandon, 70 Ark. 79-82; Conway v. Coursey, 110 Ark. 557-562.

3. Other ruling’s of the court are assigned as error, but these are not likely to be repeated on a new trial. We therefore deem it unnecessary to discuss them. For the error indicated the judgment is reversed and the cause remanded for a new trial.

DISSENTING OPINION.

McCulloch, C. J.

The trial court was undoubtedly acting within its powers in ordering the arrest of witness Smith (People v. Hays, 140 N. Y. 484; State v. Swink, 151 N. C. 726; State v. Strado, 38 La. Ann. 562), and the questions to decide now are whether there was an abuse of discretion by the court as to the circumstances under which the arrest was made, and whether prejudice resulted to appellant.

In Martin v. State, 130 Ark. 442, we held that it constituted prejudicial error for the trial court to order the arrest of a witness for the accused in the presence of the jury, the reason given in the opinion being that the action of the court was calculated to destroy or lessen “the faith of the jury in the credibility of the witness.” This view is in accord with the weight of authority. See note to State v. Swink, supra; 19 Ann. Cas. 442. But in the present case the arrested witness was not introduced by appellant and gave no testimony in the latter’s favor. The witness stated that he had not bought any intoxicating liquors from appellant within the period of the statute of limitation, and this testimony was of a negative character and had no probative force. Doran v. State, 141 Ark. 442.

The only substantive testimony given by the witness was favorable to the State to the effect that he had purchased liquor from appellant more than three years before the finding of the indictment. Appellant was therefore not interested in upholding the credibility of this witness, and suffered no prejudice from the impairment of his credibility.

If the arrest of the witness in the presence of the jury had the effect of lessening his credibility, then the harm fell upon the State and not upon the defendant. There could certainly be no prejudice to the defendant in discrediting a State’s witness who had given no testimony favorable to appellant:

It is a settled rule of this court not to reverse for mere irregularities or errors in trials, unless prejudice might have resulted.

It should be added that the conduct of the witness upon which the court based its order of arrest was committed in the presence of the jury, and the court gave no intimation of opinion as to whether the perjury was probably committed by the witness in the testimony before the grand jury, or in that given before the trial jury. So it is difficult to discover in the incident any expression of opinion by the court upon the weight of the evidence or the credibility of the witness. •

The court sustained-the objection to improper comments of the prosecuting attorney in regard to the witness, and admonished the jury that they should not consider the same. It seems to me that the admonition of the court ought to be treated as a removal of the prejudicial effect of the improper remarks of the prosecuting attorney. We ought, I think, to accord to the trial judge the discretion of determining how far he should go in correcting improper remarks of counsel.-

The cases in this court are so numerous that it is unnecessary to cite them, holding that when the court excludes an improper remark to the jury it is no ground for reversal.

I discover no prejudicial error in the record in this case, and I think the -judgment should be affirmed. I am authorized by Mr. Justice Humphreys to say that he shares these views.


author: Wood, J.

text:
    St. Louis-San Francisco Railway Company v. Conly.
    Opinion delivered May 29, 1922.
    1. Commerce — application of federal employers’ liability act.— Where a common carrier was engaged in interstate commerce, and an employee employed in such commerce was injured, the Federál Employers’ Liability Act of April 22, 1908, controls and supersedes State laws upon the subject.
    2. Commerce — regulation by congress. — Congress has power under the commerce clause to prohibit carriers engaged in interstate commerce from employing minors under a certain age and to make such carriers liable for any injuries sustained by such employees while engaged in interstate commerce.
    3. Commerce — powers of states. — The power of the States to regulate their internal affairs is inherent and has never been surrendered, but such power is different from the power to create a civil liability in favor of the employees of interstate carriers against their employers; the former power being possessed by the States exclusively, while the latter is possessed by Congress alone since it assumed jurisdiction over the subject.
    4. Master and servant — assumed risk — instruction.—In an action by a minor for injury, defendant’s request for instruction that, if the danger was so obvious that a boy of plaintiff’s experience would have appreciated it, then plaintiff is charged with the knowledge and appreciation thereof and cannot recover, even if no special instructions were given him, was correct, and its refusal was error.
    5. Master and servant — question for jury. — In an action against an interstate carrier for injury where there was an issue under the evidence as to whether plaintiff was defendant’s servant, and also as to whether defendant was negligent, and, if so, whether its negligence was the proximate cause, and also as to whether plaintiff had assumed the risk, the refusal of an instruction directing a verdict in defendant’s favor was not error.
    Appeal from Craighead Circuit Court, Jonesboro District; R. H. Dudley, special judge;
    reversed.

      W. F. Evans, E. L. Westbrooke and W. J. Orr, for appellant.
    1. At the time of the accident the defendant was a carrier engaged in interstate commerce, and the plaintiff was employed in such commerce. The Federal Employers’ Liability Act applies. 124 Ark. 127 and cases cited. It is exclusive and supersedes all State laws on the subject. 129 Ark. 534; 244 U. S. 147; Id. 170; Id. 360; 167 N. W. 349; 162 Pac. 111.
    2. In view of the foregoing decisions the court’s instruction “A” was manifestly erroneous and prejudicial. See also 247 U. S. 367; 233 IT. S. 492; 41 IT. S. Sup. Ct. Rep. 36; 40 Id. 275; 239 U. S. 548; 226 Id. 135; 236 Id. 554; 136 Ark. 440.
    3. For the same reasons the court erred in refusing to instruct on the question of assumption of risk as requested by the defendant.

      Roy Penick and Basil Baker, for appellee.
    It is true that where Congress has the power to pass any particular act, and has once covered the field, State laws must yield, in so far as they may be in conflict, but it is by no means true that where a State law has been passed and where it may be regarded as in aid of the congressional act, it would be held void. 146 Ark. 448. Since it has been held that the Congress of the United States is without power to pass a child labor law, is it not equally true that it is without power to pass an act that would nullify such a law passed by the State? It cannot, under the guise of regulation of interstate commerce, invade the rights of the States, and has no authority to control the States in. the exercise of their police power over local trade and manufacture. 247 U. S. 251, 62 L. Ed. 1102; 276 Fed. 452; 219 U. S. 453, 55 L. Ed. 290. The Congress has not yet covered that part of the field pertaining to the employment or prohibiting the employment of minors under 16 years of age by interstate carriers, if it has the right to do so, and the States, in the exercise of their police power, have the right to act in regard to that phase of the situation.
   Wood, J.

The appellant is a common carrier engaged in interstate commerce. This action was instituted by Hal Conly, ia minor, by his next friend, Cheatham Conly, and also by Cheatham Conly in his own right, appellees, against the St. Louis-San Francisco Railway Company, appellant. It is alleged in the complaint that Hal Conly was a minor fifteen years of age employed by the appellant; that he was engaged in unloading lumber, shipped in interstate commerce, from a ear; that because of the manner in which the lumber was loaded the work was hazardous, which fact, by reason of Conly’s youth and inexperience, was unknown to him; that appellant negligently failed to warn, or to instruct him of the dangerous character of the work -and as to the manner of its performance; that, while Conly was performing his work and using due care for his own safety, the timbers fell from the car on Conly, seriously and permanently injuring him, to 'his damage in the sum of $10,000, for which he prayed judgment.

In a second count to the complaint Hal Conly and Cheatham Conly set up the same cause of action as alleged in the first count and prayed damages in the sum of $10,000. Appellant, in its answer, denied all the material allegations of the complaint and set up the affirmative defenses of contributory negligence and assumed risk.

1. It is established by the pleadings, and the undisputed testimony as well, that at the time of the alleged injury the appellant was a common carrier engaged in interstate commerce and young Conly was in its employ doing work relating to such commerce. At the conclusion of the testimony the court instructed the jury that Cheatham Conly was not entitled to recover. He has not appealed, and therefore passes out of the case.

Among other instructions the court, on its own motion, gave the following:

“A. Tou are instructed that if you find from a preponderance of the evidence that the defendant company, through Arthur Anthony, employed the plaintiff, Hal Conly, at a time when he was a minor, under the age of sixteen years, and put him to work to moving timber from one car to another car on its tracks, and that he was injured while so at work, and that the injuries complained of herein were the direct result of such unlawful employment of the plaintiff,- then you will find, for the plaintiff. ’ ’

Among other prayers for instructions, the appellant prayed the following: “4. You are instructed that, if you find and believe from the evidence that the danger of the timbers falling when the stakes were removed from the bad order car was so obvious that a boy of Hal Conly’s experience would have appreciated the danger, then Hal Conly is charged with the knowledge and appreciation thereof, and will not be heard tó say that he did not know and appreciate such danger, and he cannot recover herein, even if you find that no special instructions or warnings were given to him.”

The above prayer of appellant was- in conformity with the law on the doctrine of assumed risk as announced by this court in the case of Emma Cotton Seed Oil Co. v. Hale, 56 Ark. 216-331, 222. This prayer for instruction, therefore, should have been granted, provided the Federal Employers.’ Liability Act (April 22, 1908, 35 Bevised Statutes at Large, 65, ch. 149, Compiled Stat. -.1916, sec. 8657) is controlling. It should be said in this connection that the prayers of appellant for instructions Nos. 3, 5 and 6 were not applicable to the facts of this record, and were therefore abstract and misleading, and the court did not err in refusing to grant them, even though the Federal act controls.

Does the Federal act control? Since the appellant was a common carrier engaged in interstate commerce and at the time of the alleged injury the appellee was employed in such commerce, the Federal act applies. Long v. Biddle, 124 Ark. 127. And, since the Federal act does apply, as was said by this court in St. Louis, I. M. & S. Ry. Co. v. Steel, 129 Ark. 520-534, “that act therefore governs the case. • Since its passage all State laws upon the subject have been superseded. ‘It covers and overlaps the whole State legislation, and is therefore exclusive.’ ” In addition to the cases there cited see New York Cent. Rd. Co. v. Winfield, 244 U. S. 147; Erie Rd. Co. v. Winfield, 244 U. S. 170; New York Cent. & H. R. R. Co. v. Tonsellito, 244 U. S. 360; McLean v. Chi. Great West. R. Co. (Minn.) 167 N. W. 349; Smithson v. Atchison, T. & S. F. Ry. Co., 162 Pac. (Cal.) 111.

In the cases above cited the Supreme Court of the United States holds that the Federal act “establishes a rule of regulation which is intended to operate uniformly in all the States as respects interstate commerce, and. in that field it is both paramount and exclusive.”

In Smithson v. Ry., supra, the action was brought by minor through his guardian ad litem to recover damages from the defendant for injuries sustained by the minor while in its employ. The action was brought under the provisions of the Federal Employers ’ Liability Act. There was a State law providing that “no minor under the age of eighteen years shall be employed or permitted to work between the hours of ten o’¡clock in the evening and five o’clock in the morning.” The Supreme Court of California held that the statute of the State could not be given effect as a police regulation, although not conflicting with the Federal act. In so holding the court quotes from the Supreme Court of the United States in the case of Prigg v. Commonwealth of Pa., 16 Peters 539, 617, 10 Law. Ed. 1060, as follows: “If Congress have a constitutional power to regulate a particular subject, and-they do actually regulate it in a given manner and in a certain form, it cannot be that the State Legislatures have a right to interfere, and,, as it were, by way of complement to the legislation of Congress, to prescribe additional regulations and what they may deem auxiliary provisions for the same purpose. In such a case, the legislation of Congress, in what it does prescribe, manifestly indicates that it does hot intend .that there shall be any further legislation to act upon the subject-matter. Its silence as to what it does not do is as expressive of what its intention is, as the direct provisions made by it. * * * The will of Congress upon the whole subject is as clearly established by what it has not 'declared, as by what it has expressed.” -

In McLean v. Ry., supra, an.action was brought by the plaintiff under the Federal Employers’ Liability Act. In holding that a city ordinance, a police regulation limiting the speed of trains, having all the effect of a statute, could not be admitted to contravene the rules of evidence as to liability under the Federal statute, the Supreme Court of Minnesota, among other things, said: “The act covers the entire field under which the employer in interstate commerce shall be liable for injury to its employee likewise engaged. It pertains solely to the relation of master and servant. It does not supersede State legislation outside of this field. Nor does it ‘deal with the duties and obligations of either to the public; but it does supersede all State and municipal legislation governing the circumstances under which the master, while within the provisions of the act, shall be liable for injury to the servant. It follows that the ordinance in question was superseded by the act of Congress and was not admissible in evidence.”

The above decisions of the Supreme Courts of California and Minnesota contain a correct analysis and interpretation of the Federal Employers’ Liability Act and its effects upon a State statute or municipal ordinance when the latter are invoked either to contravene or to supplement the Federal act. It is unnecessary to say more. Congress, through the Federal Employers’ Liability Act, has covered the entire field of liability of interstate carriers to their employees for injuries sustained by them while engaged in such commerce. It is unquestionably within the power of Congress, under the commerce clause of the Constitution, to prohibit carriers engaged in interstate commerce from employing minors under a certain age and to make such carriers liable for any injuries sustained by such employees while engaged in interstate commerce. Congress, having such power and having entered upon such field of legislation, State Legislatures covering the same subject-matter are as much bound by the silence of Congress as by what it has expressly declared within the scope of its power. As is forcefully expressed by the Supreme Court of the United States in one of its eases, “We may not piece out this act of Congress by resorting to the local statutes.” It is therefore wholly beyond the power of the State Legislature to make make carriers engaged in interstate commerce civilly liable in damages for injuries to their employees while engaged in such commerce for the violation of some police regulation of the State. This power of Congress, under the commerce clause of the Constitution, does not in any manner trench upon or dislodge the police power of the States over their own local and internal affairs which are reserved to them under the 10th amendment to the Constitution. Drexel Furn. Co. v. Bailey, 276 Fed. 452; Hammer v. Dagenhart, 247 U. S. Rep. 251, 272, et seq.

As is said in Hammer v. Dagenhart, supra, “the' power of the States to regulate their purely internal affairs by such laws as seem wise to the local authorities is inherent and has never been surrendered to the general government.” But such power is altogether different and occupies an entirely different field from the power to create civil liability in favor of the employees of carriers while engaged in interstate commerce against their employers for the violation of some police regulation of the State. The former power the State possesses exclusively; the latter is possessed by Congress alone after it has once assumed jurisdiction over the subject. It follows that the court erred in giving instruction A on its own motion and in refusing appellant’s prayer for instruction No. 4.

2. The court did not err in refusing appellant’s prayers for instructions asking a directed verdict' in its favor as requested in its prayer for instruction No. 2; first, because it was an issue for the jury, under the evidence, as to whether the appellee, Hal Conly, was the servant of Arthur Anthony and not the servant of the appellant; second, it was also an issue for the jury as to whether or not the appellant was negligent, and, if so, whether its negligence was the proximate, cause of the injury; and third, it was also an issue for the jury as to whether or not the appellee had assumed the risk incident to the work he was engaged in at the time of his injury.

For the errors indicated the judgment is reversed and the cause remanded for a new trial.


text:
    Nelson v. Nelson.
    Opinion delivered May 29, 1922.
    1. Municipal corporations — ordinance creating improvement district. — An ordinance creating Improvement District No. 2 within a city .for the purpose of improving “all of that portion of all of the streets within the corporate limits of said city which run east and west through said city, provision for the paving of which is not made by Paving District No. 1” sufficiently designated the streets and the portions thereof to be improved, since the streets and portions thereof to be paved could be ascertained by reference to the ordinance creating the other district.
    2. Municipal corporations — improvement district — character op improvement. — An ordinance creating an improvement district for improving streets “by draining and grading, or draining, grading, construction of curbing, guttering, paving and necessary storm sewering, or by otherwise improving said streets in such manner as the board of commissioners of said district, to be hereinafter named, may deem substantial, adequate and proper,” held void for failure to describe the character of the improvement, as required by Crawford & Moses’ Dig., § 5652.
    Appeal from Mississippi Chancery. Court, Chickasawba District; Archer Wheatley, Chancellor;
    af firmed.

      G. E. Keck and Little, Buck <& Lasley, for appellants.
    The ordinance is valid. It contains the same descriptive language as used in the petition signed by the property owners. By reference to the streets and parts of streets improved under the ordinance creating paving district No. 1, it definitely locates the streets and parts of streets intended to be improved, and authorizes the commissioners to select the character of material to be used, and to formulate the plans and specification for the work, as they would have the right to do, unless such plans and specifications of the improvement to be made were incorporated in the ordinance. 97 Ark. 338; 90 Ark. 37; 105 Ark. 68; 148 Ark. 246.

      V. G. Holland, for appellee.
    The ordinance is not valid. There is no means whereby a property owner living upon any street described in the ordinance could ascertain whether the street in front of his property would be improved or, if improved, in what manner. The ordinance is too vague and uncertain. 119 Ark. 119; 130 Ark. 44.
   Wood, J.

Ordinance 229 of the city of Blytheville, Arkansas, creates Improvement District No. 2 of said city for the purpose, as expressed in the ordinance, of “improving all of that portion of all the streets within the corporate limits of said city which run east and west through said city, provision for the paving of which is not made by Paving District No. 1 of said city; said improving to be done by draining and grading,' or draining, grading, construction of curbing, guttering, paving and necessary storm sewering, or by otherwise improving said streets in such manner as the board of commissioners of said district, to be hereinafter named, may deem substantial, adequate and proper; said draining and grading, or draining, grading, construction of curbing, guttering and necessary storm sewering to be done, located and constructed on that portion of said streets provision for the paving of which has not been made by Paving District No. 1, as the commissioners hereinafter appointed may deem for the best interest of the district; and said draining, grading, or draining, grading, construction of curbing, guttering, paving and necessary storm sewering may be done in such manner and constructed of such materials as the commissioners for said district, to he hereinafter appointed, may deem for the best interest of the said district, the cost of snch improvement to be assessed against the real property in said district.”

The question presented by this appeal is whether or not the above ordinance is valid. It will be observed that the ordinance creates an improvement district embracing' all the real property within the corporate limits of the city of Blytheville for the purpose of improving “all of that portion of all-of the streets within the corporate limits of said city which run east and west through said city, provision for the paving of which is not made by Paving District No. 1 of said city.”

The above provision is sufficiently definite to designate the streets and the portions thereof which were to be improved, because the ordinance plainly points out the way to ascertain what streets and what portions thereof are to be improved by embracing “all the streets and the portions thereof provision for the paving of which had not been made by Paving District No. 1 of said city.” By referring to the ordinance creating Paving District No. 1 and the streets and portions of streets authorized to be paved under that ordinance, it could be easily ascertained what streets and portions of streets running east and west through said city had not been paved or authorized to be paved under that ordinance. After thus creating the district and designating the property to be improved, the ordinance then provides that said streets shall be improved as follows: “By draining and grading, or draining, grading, construction of curbing, guttering, paving, and necessary storm sewering, or by otherwise improving said streets in such manner as the board of commissioners of said district, to be hereinafter named, may deem substantial, adequate and proper.”

The language of this latter provision is so vague that it is impossible for the property owners in the district to determine therefrom the character of the improvement to be made. The property owner could not determine whether the improvement contemplated was both draining and grading, or whether it was simply draining without grading, or grading without draining; or whether it was simply by curbing without guttering, or guttering without curbing; or whether it was simply by paving; or, in other words, whether it contemplated only one of the methods mentioned, or one or more, or all of them, combined; or by some other method, not mentioned, if the commissioners deemed such method to the best interest of the district. Under the indefinite language used it would be wholly within the discretion and power of the commissioners to adopt any one, or all of the methods designated for improving the streets mentioned ; or they could use one or all methods on a portion of the streets, or one or any combination of the different methods mentioned on the remainder.

The statute under which the above ordinance was passed provides as follows: “The council of any city of the first or second class, or any incorporated town, may assess all real property within such city, or within any district thereof, for the purpose of grading or otherwise improving streets and alleys, constructing sewers, or making any local improvement of a public nature in the manner hereinafter set forth.” Sec. 5647, C. & M. Digest. This statute conferring power upon the city council to create improvement districts, and other statutes prescribing the method of procedure, clearly contemplate that the ordinance creating . the improvement district shall designate, at least in general terms, the nature of the improvement to be undertaken. For instance, if the improvement contemplated is the draining, grading, construction of curbing, guttering and paving of streets, the ordinance should so specify; or, if it contemplates that the streets should be improved in some other manner, the ordinance should so specify. Likewise, if it only contemplates that the streets should be improved by only one method, it should so specify. But if the ordinance be so framed that the property owners in the district to be created cannot determine therefrom the nature of the improvement contemplated, the ordinance is void because of its vagueness. The property owners cannot, either in their preliminary petition asking for the creation of the district, or in their petition.asking for the appointment of commissioners and that the improvement be made, broaden the terms of the statute so as to confer authority upon the city council to create an improvement district, appoint commissioners, and order the improvement to be made, the general nature of which has not been designated. It would be impossible for any property owner to determine form the above ordinance what the nature of the improvement contemplated would 'be. Any property owner, upon an examination of the ordinance under review, would know that certain designated streets were to be improved, but he would be utterly at a loss to know what the nature and character of the improvement would be.

The word “otherwise” as used in the ordinance is all-comprehensive and would certainly confer upon the commissioners very broad powers; in fact, the power to make any -kind of improvement which they might deem substantial, adequate and proper to conserve the best interests of the district. In the language of one of our cases, this ordinance “would clothe the commissioners with a roving commission which would be only controlled by their own discretion.” Cox v. Road Imp. Dist. No. 8 of Lonoke County, 118 Ark. 119-123. The Legislature did not intend 'by the statute authorizing city councils to create improvement districts and to appoint commissioners to make such improvement, to confer upon the commissioners any such unlimited power.

In Less v. Imp. Dist. No. 1 of Hoxie, 130 Ark. 44-46, we said: “It is necessary that there should be no uncertainty about the improvement which it is proposed to make.” And in Cox v. Imp. Dist., supra, we said: “It is not contemplated that upon and after the establishment of the district there shall, be any doubt about the improvement to be constructed. Otherwise, property owners might sign the petition under the apprehension that a certain road or street was to be improved, only to learn after the district had been established and the plan approved that they were mistaken or had been deceived. One of the purposes of requiring a petition in writing is to prevent such controversy.”

While the ordinance in this case follows the language of the preliminary petition, the preliminary petition itself is too vague and indefinite to meet the requirements of the statute. If the ordinance creating the district designates in general terms the nature of the improvement contemplated as required by the statute, so that the property owners embraced in the district may be advised, thereof, then the ordinance is valid, the commissioners may be appointed and the improvement made upon complying with the other provisions of the statute relating thereto. See secs. 5650, 5652, 5653, C. &. M. Digest, and other provisions of the statute applicable to such cases. (Chap. 89, C.' & M. Dig., “Municipal Improvement Districts”). Where the nature and character of the improvement is set forth in the ordinance only in general terms, and the kind of material to be used in making the improvement is not specifically designated, and the property owners have not in their petition for the improvement specifically designated the same, then, to be ■sure, the commissioners may exercise a wide discretion in determining the kind of material to be used.’ See McDonnell v. Imp. Dist. No. 45 Little Rock, 97 Ark. 334-339, and cases there cited.

The appellants rely upon the last case above cited to sustain their contention that the ordinance herein, is valid, but in that case the petitions “specified that the improvement should be made by grading, draining, construction of curbing and paving.” There was therefore no uncertainty as to the character of the improvement for which the district was organized. The uncertainty was only in the kind of material to be used, which was left to the discretion of the commissioners. The decision in that case does not sustain the appellants’ contention, but on the contrary is, as we take it, authority for the present holding.

The decree of the trial court holding the ordinance void, and granting the appellee relief for which he prayed, is in all things correct, and it is affirmed.


author: Hart, J.,

text:
    Tallman v. Bennett.
    Opinion delivered May 29, 1922.
    Vendor and purchaser- — extension of time of payment — consideration. — Payment by the purchaser of land of the taxes due thereon, thereby preventing a forfeiture for taxes, held a good consideration for an agreement by the vendor to extend the time of one of the purchase-money notes.
    Appeal from Arkansas Chancery Court, Northern District; John M. ElUott, Chancellor;
    affirmed.
    STATEMENT OE FACTS.
    Elliott Tallman brought this suit in equity against M. G. Bennett et al., to obtain judgment on three promissory notes, the principal of which aggregates $12,000, and to foreclose a mortgage on a tract of land given to secure said notes.
    All three of the notes were dated March 24,1920, and bore interest at' the rate of 6% per annum from date until paid, and the interest was payable annually or to become as principal and bear the same rate of interest. The first note was for $6,000 due on or before one year after date. The remaining two notes were for $5,000 and $1,000 and due on or before two years after date.
    According to the testimony of Tallman, M. G. Bennett applied to him for an extension of the note, and he told him he would extend the note if he would increase the interest from 6% to 10%. Tallman required this because he himself was borrowing money and was paying the increased rate. Tallman told Bennett that unless he did this he would exercise his right to declare all the notes due and bring suit to recover judgment on them and to foreclose the mortgage given to secure them. The mortgage was on 380.41 acres of land in Arkansas County, Ark., and contained a clause providing that, should sixty days ’ default in the payment of any note or interest on the same be made, then all the indebtedness should become due at the option of the mortgagee. Bennett paid the interest on the notes on the 20th day of May, 1921, and the payment was indorsed on each note separately.
    According to the testimony of M. G-. Bennett, some time before the first note became due he saw that he could not pay it because the price of rice had become so low. The notes were given in part payment of the purchase price of a tract of land. Bennett had already paid $6,000 of the purchase price, and offered to reconvey the land to Tallman if he would cancel the notes. This Tail-man declined to do, and asked Bennett if he could pay the interest on the notes and the taxes on the land. Bennett thought that he could do this if the payment of the first note was extended. Thereupon Tallman agreed to extend the note for one year. Bennett paid the interest on the notes about the time the interest became due, and also paid the taxes on the land, which amounted to about $1,100. E. Q-. Bennett, one of the makers of the notes, said that he was present when Tallman agreed to an extension of the note for one year, and that nothing was said about raising the interest from 6% to 10%.
    E. C. Benton, cashier of the First National Bank, testified that that bank held one of the notes as collateral for money owed it by Tallman, and that the interest on the note was paid by Bennett when it became due.
    The court found the issues in favor of the defendants, and dismissed the complaint of the plaintiff on the ground that the suit was prematurely brought.
    To reverse that decree the plaintiff Tallman has duly prosecuted an appeal to this court.

      George C. Leivis, for appellant.
    Tire findings of fast by'the chancellor are against the preponderance of the evidence. A verbal agreement between .the payee of & note and the maker, that if the latter paid the interest at maturity, the payee would extend the note, not being based on a consideration, is not such an agreement for an extension as would discharge the surety. 82 Ark. 28; 123 Ark. 463; 143 Ark. 498. To make a valid contract of extension, the extension must be for a definite period and the new contract based upon a new consideration. 123 Ark. 463. If no benefit is received by the obligee except what he was entitled to under the original contract, and the other party to the contract parts with nothing except what he was already bound for, there is no consideration. 112 Ark. 223.
    ■ James E. Bay, for appellee.
    In a suit in equity where there is conflict between two witnesses detailing the same transaction, this court will accept the testimony credited by the chancellor. 83 Ark. 524. Payment of interest in advance is a good consideration. 4 Elliott on Contracts, sec. 3404; 3 R. C. L. 438; 54 Ark. 100.
   Hart, J.,

(after stating the facts). This court held that, in order to discharge a surety on a note by a new contract by the extension of the time of payment, the extension must be for a definite period, and. the new contract must be based upon a new consideration. Thornton v. Bowie, 123 Ark. 463; Colvin v. Glover, 143 Ark. 498; and Vestal v. Knight, 54 Ark. 97.

Counsel invoke the rule applied in those cases to secure a reversal of the decree in the present case. There is something more in the present case, however, than the agrément to extend the note for one year in consideration that the Bennetts should pay the interest which was already due. The notes were given for the balance of the purchase price of 380.41 acres of land in Arkansas County, Ark. The land was in the possession of the Bennetts, and they were raising rice on it. The price of rice became so low that tlie Benuetts saw that they would not be able to pay the first note of $6,000 when it became due and the interest on the notes became due. They had already made a payment of $6,000 on the land, and offered to deed it back to Tallman if he would surrender their notes. . Tallman declined to do this. He had deposited one of the notes in the bank as collateral security for an indebtedness he owed .it. Tallman told Bennett that, if he would pay the interest on the notes and the taxes on the land, he would extend the note which was due for another year. Bennett agreed to do this. He paid Tallman the interest on the two notes in his possession and to the bank the interest on the note it held as collateral. He also paid the taxes on the land, which amounted to about $1,100.

Under § 10082 of Crawford & Moses’ Digest, the taxes became a charge upon the land.

Sec. 10083 provides a penalty of 25% upon the taxes so returned delinquent.

Sec. 10086 provides for a sale of delinquent land for the taxes, penalty and costs therein.

By agreeing to extend the notes for one year, Tall-man secured the payment of the taxes on the land. Otherwise it would have been forfeited for taxes and sold by the collector for the taxes, statutory penalty, and cost of sale. This constituted a consideration for the extension of the payment of the note for one year.

In this connection it may also be considered that Bennett paid the interest on one of the notes to a bank which held it as collateral security for an indebtedness of Tallman.

The agreement for the extension of the note for one year has all the essentials of a binding contract. Tall-man extended it for a definite period of time in consider ation that Bennett should pay the taxes on the land, thereby preventing the statutory forfeiture and sale thereof by the collector. This was an agreed equivalent for the extension and such consideration as would support it. It was something entirely additional to what he could have obtained without the extension agreement.

Therefore the judgment will he affirmed.