text:
    Claybrooke v. Barnes.
    Opinion delivered December 23, 1929.

      Ernest Neill, for appellants.

      Colemm & Reeder, for appellees.
   Hart, J.,

(after stating the facts). • It is first sought to uphold the decree on the ground that appellee, Laura Barnes, paid taxes on the land for seven years under color of title, and acquired title by such payment of taxes under § 6943 of Crawford & Moses’ Digest, as construed by the repeated decisions of this court. The record shows that the lands were wild and unimproved, but we do not think that the facts in the record sustain the contention of Mrs. Laura Barnes. It is true that in one place she testified that she had paid .the taxes from the year 1911 up to the time she was testifying, in February, 1927. But her claim in this respect is not borne out by the record of tax payments nor in part by her own testimony. She admitted in her testimony that her husband had received a bond for title for the land from T. B. Tate, and that she did not take possession of it until after his death in 1918. T. B. Tate, who had the legal title to the land, and who testified that he purchased it for W. E. Barnes, testified that it was Barnes’ duty to pay the taxes on the land. The tax records show that he did pay the taxes on the land until his death in 1918. The mineral interests in the land were separately assessed in 1923, and from that time on appellants paid the taxes on the mineral interest in the land. The payment of •taxes by W. E. Barnes from 1911 to 1917 and 191)8 inclusive will be deemed to have been made under his duty to pay them, as testified to by Tate, as being required under his bond for title. iSo it will be seen that Mrs. Laura Barnes did not pay the taxes for seven years in succession before 1923, when the mineral estate was separately assessed, and did not acquire title by the payment of taxes as provided under § 6493 of Crawford & Moses’ Digest.

Besides, this court has held that the minerals underlying a tract of land are not lost by failure to- pay taxes thereon-unless there is a separate assessment of taxes against them. Bodcaw Lumber Co. v. Goode, 160 Ark. 48, 254 S. W. 345, 29 A. L. R. 578.

The record in this case shows that the deed from appellants to Cole contained an exception of the mineral rights from the ground, within the principles of law decided in Grayson-McLeod Lbr. Co. v. Duke, 160 Ark. 76, 254 S. W. 350.

Where there has been a severance of the legal interest in the minerals from the ownership of the land, it has been held as to solid minerals, and the same rule has been applied to oil and gas, that adverse possession of the land is not adverse possession of the mineral estate, and does not defeat the separate interest in it. Summers on Oil and Gas, pp. 139 and 140 ; and Mills and Willing-ham on the Law of Oil and Gas, § 18. In Scott v. Laws, 185 Ky. 440, 215 S. W. 81, 13 A. L. R. 369, the court said that, since there was a severance of the mineral estate from the surface estate, the owner of the minerals did not lose his right or his possession by any length of nonuser, nor did tbe owner of the surface acquire title by the statute of limitations to the minerals by his exclusive and continued occupancy and enjoyment of the surface merely.

The rule was approved by this court in Bodcaw Lumber Co. v. Goode, supra, and the court said: “The rule of those authorities is that the title to minerals beneath the surface is not lost by nonuse nor 'by adverse occupancy of the owner of the surface under the same claim of title, and that the statute can only be set in motion by an adverse use of the mineral rights, persisted in and continued for the statutory period. ’ ’

So it may be taken as settled that the two estates, when once separated, remain independent, and title to the mineral rights can never be acquired by merely holding and claiming the land, even though title be asserted in the minerals all the time. The only way the statute of limitation can be asserted against the owner of the mineral rights or estate is for the owner of the surface estate or some other person to take actual possession of the minerals by opening mines and operating the same. It is only when such possession has continued for the statutory period that title to the mineral estate by adverse possession i.s acquired. Hoskins v. Northern Lee Oil & Gas Co., 194 Ky. 628, 240 S. W. 377; and Maney v. Dennison, 110 Ark. 571, 163 S. W. 783.

Tested by this rule, we do not think that appellee, Laura Barnes, has acquired title by actual adverse possession of the mineral estate in said land. Under the authorities above cited, the burden of proof to show such adverse possession rested on her. As said in the last case cited, the burden rested on the one asserting title to show adverse occupancy for a definite area sufficiently described to found a verdict upon. Evidence for appellee tended to show that some mining had been done on the land for each year since 1911, but nearly all of the mining had been done on a single 40-acre tract of land. All of the mining was surface mining, and no mines were opened up and mining machinery installed on the land. There was no occupancy of any of the land continuously for a period of seven years. The most that was shown was that, every three or four months, some of the appellees would work surface mines on the land. They all did so under leases from W. E. Barnes in his lifetime and from Mrs. Laura Barnes after his death. It is not possible, however, to take out any definite part of the land which was so mined, and the evidence does not show any continuous operation of mines for the period of seven years. At best it was only a fitful and desultory occupancy for mining purposes, and was not continued for the necessary length of time to give title by adverse possession for the statutory period of seven years.

It follows that the chancellor erred in finding in favor of appellees, and in dismissing the complaint of appellants for want of equity. The decree therefore must be reversed; and, inasmuch as the case seems to have been fully developed, the cause will be remanded with directions to the chancery court to enter a decree in accordance with the prayer of the complaint.


source: Caselaw Access Project

author: Hart, C. J.,

license: Public Domain

text:
    Missouri Pacific Railroad Company v. Yancey.
    Opinion delivered December 23, 1929.

      E. B. Kinsworthy and R. E. Wiley, for appellant.

      E. P. Toney, N. B. Scott and Golden ■<& Golden, for appellee.
   Hart, C. J.,

(after stating the facts). The first assignment of error is that the testimony is not legally sufficient to warrant the verdict. A comparison of the testimony abstracted above with that proved upon the former trial will show that the testimony is at least as strong for the plaintiff as it was on the first trial of the ease. We there held that the testimony was legally sufficient to warrant the v.erdict, and this is the law of the case upon this appeal.

The next assignment of error is that the court erred in giving instruction No. 5, which reads as follows:

“The court instructs the jury that if it should find from the evidence that White and Brownlaw, without any warrant, arrested plaintiff, and kept him in prison for any length óf time, and that such action was without probable cause, and that said White and Brownlaw at the time of making said arrest were acting for' the defendant and within the scope of their authority, then the jury should find for the plaintiff. Even though the jury should believe that defendant’s said agents had probable cause for mailing the arrest and were acting within the scope of their' employment, still it was their duty to nse reasonable diligence in making other investigation, and if the jury should believe from the evidence that, after they had obtained the information, or could have reasonably obtained such, which would have dispelled their belief in the probable guilt of plaintiff, they detained such plaintiff in the city prison of McGrehee, without cause, then you should find for the plaintiff.”

We do not think that the court erred in giving this instruction. According to the testimony for the plaintiff, he was arrested by White, a special ag*ent of the railroad company, because he was suspected of having broken into a merchandise freight car of the company a few nights before. White testified that he had a right to arrest persons under such circumstances. Yancey was arrested by White, and taken to the city marshal to be eonfined in jail, about eleven-thirty at night. A little while thereafter White returned to the jail and questioned Yancey. The latter was then locked up again, and about the middle of the next morning White and another special agent of the railroad company took Yancey out of jail for the purpose of questioning him. It is also inferable from the plaintiff’s testimony that they caused an investigation to be made of his whereabouts on the night of the former robbery, and found out that they were at a dance at the time it occurred. Then they ordered the release of Yancey from jail.

If defendant, by its agent, unlawfully caused Yancey’s arrest and incarceration in jail, it was a continuing-tort, for the consequences of which the defendant was responsible until, by its agent, Yancey was released about dark on the 17th day of January, 1928. The unlawful imprisonment, if it was such, did not end when Yancey was turned over to the city marshal, but continued during his confinement in jail and up to his release on the evening of the next day. Hence we do not think that the instruction complained of was erroneous.

It is next insisted that the court erred in placing the burden of proof upon the defendant to show by a preponderance of (the evidence that its lagemtis had arrested Yancey at the request of the officers of the city of McGehee, and that any private citizen had a right without a warrant to arrest another when he has probable cause to believe that a felony has been committed by the person to 'be arrested. The court had already instructed the jury that the burden was upon Yancey to show that "White, as special agent for the railroad company, in making the arrest and causing the imprisonment of Yancey was acting’ within the scope of his authority, real or apparent, as held in St. Louis I. M. & S. R. Co. v. Sims, 106 Ark. 109, 152 S. W. 985. The undisputed evidence shows that White arrested Yancey. The theory of the railroad company was that White arrested him, not because he was suspected of having broken into one of the box-cars -of the railroad company which contained merchandise, but that he arrested him at the request of the town marshal because he was suspected of having broken into some houses in the city of MeG-ehee a short time before.

We do not think the court erred in giving this instruction. The action was one for false imprisonment, and, the arrest having been proved by the undisputed evidence, the burden was upon the defendant to show that it was by authority of law. McAleer v. Good, 216 Pa. 473, 65 Atl. 934, 10 L. R. A. (N. S.) 303, and cases cited.

Every imprisonment of a man is a trespass; and in an action to recover damages therefor, if the imprisonment is proved or admitted, the burden of justifying it is on the defendant. Bassett v. Porter, 10 Cush. (Mass.) 418; Jackson v. Knowlton, 173 Mass. 94, 53 N. E. 134; and Snead v. Bonnoil, 166 N. Y. 325, 59 N. E. 879.

The last assignment of error is that a verdict of $3,000 is excessive. We cannot agree in this contention, if the facts testified to by the plaintiff were believed by the jury. The plaintiff testified that he was compelled to walk by the station with his hands np, in the presence of a crowd of people, in a community where he was well known, and he was placed in a cold jail, without any fire, while the weather was cold and disagreeable; that he was twice taken out of jail and questioned about a felony which he did not commit; that he was not given anything to eat at all while he was in jail, and that the jail was filthy. Plaintiff further testified that he contracted a bad cold by reason of his imprisonment, and that this finally resulted in him having tuberculosis. The condition of the jail and the allegation that he had contracted tuberculosis by reason of his confinement there were put in issue by an amendment to his complaint before the case proceeded to trial. The plaintiff in an action for false imprisonment may show the condition of the jail in which he was confined and the treatment he received therein as an element of damages he had sustained. Grimes v. Greenplatt, 47 Col. 495, 19 Ann. Cas. 608, and Spain v. Oregon-Washington Rd. Navigation Co., 78 Ore. 355, 153 Pac. 470, Ann. Cas. 1917E, 1104. Hence we hold that this assignment of error is not well taken.

We find no reversible error in the record, and the judgment will be affirmed.

Butler, J., not participating*.


author: Smith, J.

text:
    Hot Springs Concrete Company v. Rosamond.
    Opinion delivered December 23, 1929.

      E. B. Parham, for appellant.

      C. T. Cotham, for appellees.
   Smith, J.

This is the second appeal in this case (Hot Springs Concrete Co. v. Rosamond, 178 Ark. 194, 10 S. W. (2d) 12), and, as appears from the opinion on the former appeal, the suit was brought by appellant to recover the alleged value of certain material used by T. A. and Taylor Rosamond in construction work which they were under contract to perform, incident to which they had executed two surety bonds. The sureties on these bonds were also made defendants, and the chancellor held that, inasmuch as the United States Government was a party to the construction contract, and as the bonds had been required and given under the provisions of § 6923 et seq. U. S. Comp. Statutes 1916, and since no suit could be maintained against the sureties on such a bond except in the District Court of the United States, his court was without jurisdiction to try the case, and the cause of action was dismissed on that account. At the institution of the suit, writs of garnishment were issued and served on certain garnishees.

We held on the appeal that, while the court was correct in holding that it had no jurisdiction to try the question of the liability of the sureties on the bond, it did have jurisdiction to try the question of the liability of the contractors themselves, without reference to the bond, and that of the .garnishees, and we held that “the court should have dismissed as to the sureties and proceeded to trial as to the defendants, T. A. Bosamond and Taylor Bosamond,” and for that error the decree was reversed, and the canse remanded, “with directions to dismiss as to the sureties on the bond and to proceed with the trial of the case against the defendants and garnishees. ’ ’

Upon the remand of the cause, judgment was rendered against the contractors for $266.41, and, as it appeared that a bond had been executed to release the funds impounded by the garnishments, upon which bond the Community Bank & Trust Company was surety, judgment was also rendered against it for the same amount, as the garnishees had in their hands at the time of the service of the writs of garnishment a larger sum than the judgment recovered. The bond to discharge the garnishments was executed pursuant to the authority so to do conferred by act 177 of the Acts of 1925 (Acts of 1925, p. 538).

. This suit was brought, as is recited in the former opinion, for the sum of $1,002.59, and, as the judgment was for a much smaller amount, the plaintiff has appealed, and the bank and the Bosamonds have also appealed.

The former appeal was not prayed before or granted by the trial court, but was granted by the clerk of this court, and it appears that, when process issued out of this court to perfect the appeal, no process issued against the garnishees, and no service was had upon them. It further appears that, when the bank signed the bond which released the money impounded by the garnishments (and no question is raised as to its authority so to do), the bank required the Bosamonds to deposit $1,080 with it for its indemnification, but, when the ease was dismissed, the bank was advised of that fact, and it permitted the Bosamonds to withdraw the deposit which had been required for its protection. No supersedeas bond was ever given.

Appellants insist that, notwithstanding the facts just stated, the opinion on the former appeal adjudicated the contingent liability of the garnishees, and that nothing remained except to determine the extent of this liability on the remand oif the canse, and that such is the necessary effect of the directions of the court set out above.

We do not agree that such was the purpose or effect of our order. We merely decided that a cause of action had been stated as to all parties except the sureties on the construction bond, as to which the Federal District Court had exclusive jurisdiction. No brief was filed on behalf of the defendants, who were served with the process issued out of this court directed to the Rosamonds and the surety companies, and, as we have said, no process was issued against the garnishees, and the officials of the bank who had the matter in charge testified that they had no knowledge that any attempt would be made, after the dismissal of the cause in the lower court, to enforce a liability against the bank, until long after they had paid over1 the money which they required the Rosamonds to deposit by way of indemnity, and the fact was not called to our attention that there was no supersedeas bond.

It appears that the chancery court had dismissed the suit and discharged the garnishments, and upon the authority of this .judgment the impounded money was paid over, and that judgment was never at any time superseded.

There was no authority on the part of the garnishees to continue to hold the money to which the Rosamonds were otherwise entitled, or to deprive them of the use of it pending the final disposition of an unsuperseded judgment.

In the case of American Nat. Bank of Ft. Smith v. Douglas, 126 Ark. 7, 189 S. W. 161, L. R. A. 1917B, 588, it was said: “In the absence of a statute prescribing that, where a judgment had been entered dismissing a writ of garnishment and discharging the garnishee, the garnishee may retain possession of the property of the defendant during the time allowed for appeal, or until a reasonable time within that period has elapsed for the perfecting of the appeal or filing a supersedeas bond, the garnishee would have no authority under the law, and therefore no right, to deprive the defendant of the possession of his property.”

The act of 1925, supra, is not such a statute. It does provide that, after a garnishment has been discharged by the execution of a bond for that purpose, “upon judgment being rendered against the defendant, summary judgment may be rendered against the sureties in such bond.” This statute has no application here, because the judgment was not rendered against the defendants, but was in their favor, and, as it was not superseded, the garnishments were discharged, and, as the garnishees weré discharged, their surety was also.

The judgment against the bank as surety on the bond will therefore be reversed, and that portion of the suit dismissed.

There remains only the question of fact as to the amount due the plaintiff, and much conflicting testimony was offered upon this issue. Appellant insists that the preponderance of the testimony shows that a larger judgment should have been rendered’; while the Rosamonds insist, upon their cross-appeal, that they were not allowed all the credits to- which they were entitled, and that the judgment is excessive.

We have considered this testimony, but we shall not review it in this opinion, as no useful purpose would be served in so doing’. The plaintiff’s case was made by the testimony of a single witness as to the amount, kind and value of the material furnished; while opposed thereto was the testimony of the two Rosamonds, who denied that they purchased certain of the items, and insist that they paid for others either in money or by work performed for the plaintiff. A credit of $225 was claimed for drilling a well, which was done under a contract which did not fix; the price to be paid, and the testimony is as conflicting as to this item as it is in regard to the others, and we are unable to say that the chaneellor’s finding is contrary to the preponderance of the evidence on any of these items except as to a check for $108.57. As to this last item we think the chancellor’s 'finding is against the preponderance of the evidence, and that this credit should not have been allowed. v

Plaintiff admits that this cheek was received, but insists that it was given in payment of material furnished upon another contract not involved in this litigation; and we think that contention should be sustained, for the reason that at the time it was issued there was due the plaintiff on account of the contracts out of which this litigation arose only the sum of $12.13, and, according to defendant’s books and accounts, nothing was then due, and no one claims that any loan was ever made or material paid for in advance.

The judgment in appellant’s favor will therefore be increased by the amount of this check, to-wit, $108.57, and, as thus modified, it will be affirmed as to the Rosamonds.


text:
    Collier v. Thompson.
    Opinion delivered December 23, 1929.

      James B. McDonough, G. O. Patterson and Cravens & Cravens, for appellant.

      Pryor, Miles & Pryor and Jesse Reynolds, for appellee.
   Smith, J.

Appellant, H. W. Collier, filed a complaint against W. W. Thompson, in which he prayed .judgment for damages, both compensatory and punitive, on account of an assault made upon him by Thompson. An answer was filed by Thompson, in which he alleged that he had been slandered by the plaintiff, and a cross-complaint was filed against Collier in which Thompson prayed damages on that account. W. F. Collier, the father, and Linnie D. Collier, the sister, of the plaintiff, were made defendants in this cross-complaint, upon the allegation that they had conspired with the plaintiff and had advised and encouraged him to utter the slander, and had assisted him to promulgate it in various ways.

The testimony on the part of the plaintiff tended to show an assault of a most aggravated and brutal character, and warrants were issued for the arrest of Thompson upon the charges of aggravated assault, carrying a pistol, and drawing it upon H. W. Collier, to all of which charges pleas of guilty were entered, and this suit was brought, as has been said.

At the trial from which this appeal comes the jury was properly instructed that the plaintiff was entitled to compensatory damages, regardless of the provocation which had prompted the assault, and, in addition to this charge, an instruction numbered 9 was given on, the question of punitive damages, which reads as follows: “In addition to compensatory damages, the jury have a right to find, if the facts warrant such finding, for the plaintiff, damages by way of punishment, commonly known as punitive damages. If the defendant, with malice aforethought, took the plaintiff under arrest and duress, and compelled him to go to the defendant’s home, and if while there, with malice aforethought and with an intent to ldll the plaintiff or to do him great bodily harm, the defendant made an unjustified and unwarranted assault upon the plaintiff, and damaged and injured him, and if such assault was with malice aforethought, and if it was also for the purpose of avenging any fancied wrongs suffered or endured by the defendant, and if said injuries by the defendant to the plaintiff, if any, were the result of malice and vindictiveness, then and in that event the jiiry may find for the plaintiff vindictive and punitive damages in a sum not to exceed that asked in the complaint. ’ ’

The jury was thus instructed to assess compensatory-damages in any event, and to assess punitive damages under the conditions stated in the instruction. These instructions were correct.

The court gave, at-the request of Thompson and over the objection and exception otf appellant, instructions numbered 1, 8 and 9, which read as follows:

“1. The court instructs you that there are two issues involved in the trial of this case. The plaintiff brings suit to recover damages for an alleged unlawful assault. The defendant in his cross-complaint brings suii to recover damages for slander and libel on the part of the plaintiff against him. In determining the issues -you will first consider whether or not the plaintiff has been damaged on account of the alleged assault made by the defendant, and, if so, the amount of damages that he is entitled to recover. If you find from the evidence that the plaintiff did utter or publish false and slanderous words about the defendant, then you should consider the damage, if any, to which the defendant is entitled to recover against the plaintiff.”
“8. The court instructs you that if you find from the evidence that the plaintiff is entitled to recover damages from the defendant on account of the assault that was made upon him, yet if you further find from the evidence that the defendant has been damaged on account of the false and slanderous statements made by' the plaintiff, if any, concerning his integrity, and the assault made by plaintiff on him, then you may offset such an amount as you may think the defendant is entitled to against the amount that you may also-find that plaintiff is entitled to on account of said assault.
“9. The court instructs you that if you find that the amount of damages which the defendant is entitled to recover by way cxf recoupment equals or exceeds the amount of damages which'the plaintiff is entitled to recover, if any, then in that event yonr verdict should be for the defendant.”

The objection made to instruction numbered 9 is not well taken. It did not tell the jury that plaintiff was not entitled to have compensation assessed in his favor in any event. In other words, while plaintiff’s right to compensatory damages was not to be defeated, yet if, when such damages were added to. the punitive damages, if any were allowed, the total amount of both did not exceed the damages which Thompson had sustained, there could be no recovery against Thompson, and the .judgment should have been in his favor. In that event, plaintiff would be given redress by extinguishing the liability for his own wrongful act. .Section 1197, C. & M. Digest, expressly so provides. It reads as follows: “A set-off may be pleaded in any action for the recovery of money, and may be a cause of action arising either upon contract or tort.” As this question is settled by the statute quoted, we need not consider what the law once was in this State or is now elsewhere. Coates v. Milner, 134 Ark. 311, 203 S. W. 701.

There is error, however, in instructions numbered 1 and 8, which calls for the reversal of the judgment, which will later be discussed.

Motions were made before the trial began to dismiss the cross-complaint against W. F. Collier and his daughter, Linnie D. Collier, which we think should have been sustained, but this error need not be considered, as the case was dismissed as to them before the submission of the case to the jury, and they have ceased to be parties, and no exception was saved to this ruling. That they were not proper parties will fully appear from the statement of facts which will later be made.

It appears that Thompson, who had married a sister of appellant, was in business for a number of years with W. F. Collier, his father-in-law. This business had prospered, but was dissolved, and ill-will arose over the settlement on the dissolution, which resulted in two encounters between the Colliers and Thompson, in the last of which plaintiff Collier assaulted Thompson with a pistol, and it was this incident to' which instruction numbered 8 refers. In this comiection and about this time statements. were made and a. newspaper article was published and circulars were distributed, which, if false, were slanderous and libelous, their purport being that Thompson had swindled his partner on the dissolution of the partnership and the settlement following. Friends intervened, and a written agreement was prepared and signed, wherein it was recited that all differences of every kind had been composed and settled, and it was further agreed that no party to the contract, which was signed by all the Colliers as well as by Thompson, should thereafter indulge in any propaganda against the others.

A few days before the commission of the assault out of which this litigation arose, plaintiff met Thompson’s son, a young man whose college course had not been completed, and told the young man that, while he was giving his father credit for educating him, he was, in fact, being educated on 'Collier money, and he told the young man that he ought to advise his mother to leave her husband. Collier denied that this conversation had occurred. Young Thompson testified that plaintiff, his uncle, after mailing these statements, requested him not to repeat what had been said, but, after thinking the matter over a day or two, he decided that he should tell his father, and he did so, and on the occasion of the first meeting of the father and uncle thereafter the assault occurred. The testimony shows that Thompson placed Collier under duress with a drawn pistol, and took Collier to his home, and told him he would be required to apologize to his sister, Thompson’s wife, for what he had said. Thompson testified that this was all he had expected to require of Collier, but, after mailing a partial apology, Collier said, “You know you did it,” meaning thereby to repeat, in the presence of Mrs. Thompson, the charge that Thompson had dealt dishonestly with Mrs. Thompson’s father. The testimony is conflicting as to just what was said and done at Thompson’s home, but the undisputed testimony is that - Thompson struck Collier with a pistol with such force that Collier was knocked senseless and seriously injured.

■Sections 1195 and 1196, C. & M. Digest, provide that a counterclaim may be any cause of action in favor of the defendants, or some of them, against the plaintiffs, or some of them, and that, when it appears that a new party is necessary to a final decision upon the counterclaim, the court may permit the new party to be brought in and to reply to the counterclaim in the answer, or may .direct that it be stricken -out of the answer and made the subject of a separate action. But these sections of the statute created no- right on the part of Thompson to sue the elder 'Collier and his daughter, as they were not concerned in the plaintiff’s case. Moreover, any cause of action which Thompson may ever have had against them was barred by the statute of limitations, and was also compromised and settled by the agreement above referred to, which was executed in February, 1925.

It is also insisted that no testimony was admissible concerning the relations between plaintiff Collier and the defendant Thompson which occurred prior to the time within which Thompson -might claim damages after the alleged slander. In other words, it is insisted that, as an action for slander is barred after one year, any testimony on that subject should have been limited to transactions which had occurred within the year. But we do not think so.

In the first place, the statement of appellant to Thompson’s son, that the young man was being educated on Collier money, was not actionable per se. That a grandfather was educating a grandson is a thing so common that such a statement, considered by itself, is apparently innocuous-. But the testimony in Thompson’s behalf is to the effect that this is not the meaning appellant meant to convey, and did convey. The innuendo was that the young man was being educated with money stolen by Thompson from the young man’s grandfather, and this charge was actionable. It was therefore competent, to sustain the charge of slander, for Thompson to offer testimony showing the true import of the words employed and the meaning they were intended to convey, and it was equally necessary for him to show that the charge thus imported was false. It was competent for Thompson to prove the lang-uage employed and its innuendo and falsity by testimony concerning matters which had occurred more than one year before the statements were made.

An error common to both instructions .1 and 8 is that they do not take any account of the statute of limitations, but permit a recovery for any slander at any time, and the objection to this effect is well taken.

The case of Missouri & North Ark. Ry. Co. v. Bridwell, 178 Ark. 37, 9 S. W. (2d) 781, is decisive of this question. A headnote in that case reads as follows: “A counterclaim or set-off, unconnected with plaintiff’s cause of action, is barred as a defense if the right of action thereon was barred before plaintiff’s cause of action accrued; otherwise it is not barred. ’ ’

This opinion is somewhat ambiguous because of the failure to make clear the fact which the court had in mind, to-wit, that the counterclaim of Bridwell was not barred at the time the cause of action in favor of the railroad company accrued, although it was barred at the time suit was brought. So therefore any cause of action which Thompson may have had at the time of the assault, which was barred by the statute of limitations, may not be interposed as a counterclaim or set-off against the plaintiff’s rig'ht of action for damages for the assault; but, although this is true, Thompson has the right, in proving the innuendo of language spoken within the period of limitations, and also its falsity, to prove any essential fact, without regard to- time, not as themselves constituting causes of action, but as explaining language which is actionable, and in showing that such language was false.

In addition to the error common to both instructions 1 and 8 which we have just pointed out, instruction 8 permits a recovery to compensate the assault made on Thompson by C'o.llier, although that cause of action had been composed and settled, and was also barred by the statute of limitations before the assault on’ Collier by Thompson was made.

It is earnestly insisted that it was error to permit the jury to consider the alleged slanderous remarks, although made within the period of the statute of limitations, to mitigate even the punitive damages. But we do not agree with counsel in this contention. The law of this feature of the case was stated by Mr. Justice Riddick, with his usual clearness, in the case of LeLaurin v. Murray, 75 Ark. 238, 87 S. W. 131, where he said:

“Now, it is a well settled rule of law that mere words never justify an assault, though, when they are such as to naturally arouse the resentment of those to whom they are addressed, they may go in mitigation of damages resulting from an assault provoked by them; but to do this they must have been uttered at the time of the assault, or so recently before that the provocation and the assault may be considered as parts of the same transaction. If sufficient time has intervened for reflection, and for reason to regain control, words, however pro vocative, do not in law mitigate such damages, for only provocation that is so recent as not to allow cooling time is competent to mitigate damages; and even then such mitigation extends only to exemplary damages. Damages for pecuniary losses actually sustained from a wrongful assault can never be mitigated below adequate compensation. Ward v. Blackwood, 41 Ark. 295; Godsmith v. Joy, 61 Vt. 488, 17 Atl. 1010, 4 L. R. A. 500, 15 Am. St. Rep. 923; Prentiss v. Shaw, 56 Me. 427, 96 Am. Dec. 475; Millard v. Truax, 84 Mich. 517, 47 N. W. 1100, 22 Am. St. Rep. 705; Hale on Torts, 262.
“Provocation, so recent and immediate as to induce a presumption that the violence done was committed under the immediate and continuing- influence of the feelings and passions excited thereby, may be shown in mitigation of damages. Mowry v. Smith, 91 Mass. (9 Allen) 67; Millard v. Truax, 84 Mich. 517, 47 N. W. 1100, 22 Am. St. Rep. 705; 3 Cyc. 1096.
“But, as we have before stated, this provocation occurred some weeks or months before the assault, and the mere, fact that the language used by LeLaurin was repeated by Peterson to Murray an hour or so before the assault does not bring it within the time, for there was but little of it that Murray had not heard before. Had LeLaurin repeated his former statement about Murray on the day of the assault, this renewal of an old slander would have been a double provocation; but he is not responsible for the fresh repetition by Peterson. 3 Cyc. 1098.”

We are unable to say as a matter of law that such length of time had intervened between the narration to Thompson of the conversation between his son and appellant and the assault upon appellant that cooling time had been afforded and reason had regained control, and especially so as Thompson testified that the offensive remark imputing dishonesty was repeated just before the blow was struck. Arnold v. State, 178 Ark. 1066.

For the reasons indicated the judgment must be reversed, and upon the remand of the cause the jury will assess damages in plaintiff’s favor in accordance with the rules announced in the LeLaurin case, supra, and will then, consider and determine what damages, if any, should be awarded Thompson for the alleged slander, and will offset the one against the other, and will render a verdict in favor of the party whose damages exceeds the other, and for the amount of the excess.

Kirby, J., concurs in the reversal.


author: Humphreys, J.

text:
    Arkansas Power & Light Company v. Shryock.
    Opinion delivered December 23, 1929.

      Robinson, Rouse & Moses, T. D. Wynne, Lee <& Moore and Bogle S Sharp, for appellant.

      S. S. Jefferies, for appellee.
   Humphreys, J.

This is an appeal from a judgment in the sum of $10,000 rendered in the circuit court of Monroe County in a suit by appellees against appellant for the alleged negligent killing of Corrie Gr. Shryook, wife of Charles F. Shryock, and mother of the other appellees, by electricity which escaped from one of appellant’s electric light wires.

Appellant seeks a reversal of the judgment upon the grounds: (1) that there is no substantial evidence in the record tending to show negligence on its part resulting" in the death of appellee’s decedent; and (2) that the ■undisputed evidence shows that her death was the result of her contributory negligence.

(1). The record reflects that the service wire leading from its main wire along the street- into the house occupied by appellees and their decedent was insulated with the exception of one and one-half to three inches at the joint under the eaves of the house, and that an outside radio wire, foreign to appellant’s wires, was attached to a paling on the front fence and to a pole in the back yard; that, as originally constructed for radio purposes, it was over the comb of the roof and above appellant’s service wire which entered the house; that Mrs. Corrie Gr. Shryoek was found suffering from an electric-shock, which resulted. in her death in a few moments, some forty or fifty feet away from the front fence, with the end of the wire which had been attached to the paling in her left hand, and with the wire coiled about her hand and el'bow several times; that the radio wire was lying upon and across the uninsulated part of the service wire at the time she was discovered.

The record reflects a dispute in the testimony as to- whether the deceased, in coiling the radio wire around her arm, pulled it off the roof of the house or off the insulated part of the service wire onto the uninsulated part thereof and received the electric shock which injured and killed her. The testimony introduced bjr appellant tended to show that the deceased pulled the radio wire off the roof onto the uninsulated portion of its service wire. There is substantial testimony in the record, however, tending to show that the radio wire had been lying upon and across the insulated portion of the appellant’s service wire for perhaps a month or more, of which condition appellant had notice. Mrs. Saul, mother of deceased, who had lived in the house with appellee for over a month, testified that she was in the habit of taking the baby out in the yard every day and rolling her around in the buggy, and that in doing so she passed under the radio wire every afternoon, and noticed that it was lying upon and across appellant’s service wire, and was touching it. Two witnesses testified that Lloyd Lawrence, manager of appellant, came to appellee’s home on the afternoon that deceased received the shock from which she died, and in talking about the occurrence said: “I noticed this wire across our wires several times. I knew it ought to have been taken down, but I heard no howl about it, and left it. ”

Viewing the testimony in its most favorable light to appellees, it warranted the jury in finding that a foreign wire (the radio wire) had been lying upon and across an insulated service wire at a point near an uninsulated portion thereof, with the knowledge of appellant, and with the further knowledge that the radio wire ought to have been taken down, but that it had not been removed because no howl had been made about it.

This court ruled in the cases of Pine Bluff Co. v. Bobbitt, 168 Ark. 1019, 273 S. W. 1, and 174 Ark. 44, 294 S. W. 1002, that a duty rested upon an electrical company to discover within reasonable time and remove a foreign wire in contact with its own, which might injure or imperil the life or property of another, who was not himself guilty of contributory negligence. Applying this rule to the facts, viewed in their most favorable light to appellees, appellant was guilty of negligence in not moving the radio wire off its own service wire after discovering the existing' condition.

This brings us to a consideration of the question of whether, as a matter of law, the deceased was guilty of contributory negligence in taking hold of the radio wire and attempting to roll or coil it up. The rule or test by which to determine whether one who receives an injury was guilty of contributory negligence as a matter of law, is to ascertain from the undisputed facts whether all reasonable minds would reach the conclusion that, under all the circumstances, he acted as an ordinarily prudent person would have done. Coca Cola Bottling Co. v. Shipp, 174 Ark. 130, 297 S. W. 856. As long as the radio wire rested upon the insulated service wire, no injury would or could result to any one taking up the radio wire. This is necessarily so, else the paling would have burned to which the wire had been tied. This is proof conclusive that, in order to injure either person or property, the two wires would have had to come in contact at a point where neither was insulated. There is nothing in the record showing that the deceased knew that the service wire was uninsulated at the joint where it entered the house. The reasonable inference would be that the whole service wire was insulated, as its whole length was insulated except the space of an inch and a half, or thereabout, at the joint where it entered the house. This joint was sixteen or seventeen feet above the ground, and under the eaves of the house-. ' No duty of inspection rested upon the deceased to ascertain the condition existing there, and the lack of insulation at that particular point was not so patent and obvious that one would necessarily observe it without making an inspection. We do not think the condition existing constituted a sufficient warning- of peril to find as a matter of law that the deceased was guilty of contributory negligence. The facts in the case clearly warranted the submission of that issue to the jury for determination. This court ruled in the case of Beal-Doyle Dry Goods Co. v. Carr, 85 Ark. 479, 108 S. W. 1053, 14 Ann. Cas. 48, that one who walked through an open door into what he thought was an elevator, was not guilty of contributory negligence for failure to observe that an elevator was not there, but said that the facts in the case warranted the submission of that issue to the jury. In passing upon that point the court used the following language: ‘ ‘ There is strong reason for finding that appellee was guilty of negligence in walking into the open elevator shaft, if it was open as he claims; but we cannot say, as a matter of law, that he was negligent. That was a question for the jury. ’ ’

No error appearing, the judgment is affirmed.


author: HumpheeVs, J.

text:
    Yates v. Phillips.
    Opinion delivered December 23, 1929.

      H. L. Fonder, for appellant.

      Holi'field & Upton and Arthur Sneed, for appellee.
   HumpheeVs, J.

This is a suit brought by appellants against appellees on the 13th day of July, 1928, in the chancery court of Clay County, Eastern District, contesting the validity of the organization and the assessment of benefits in Light & Power Improvement District No. 1 of the city of Rector, upon the alleged ground that the second petition in the organization thereof limited the cost of the improvement to $40,000, instead of limiting the cost thereof to a percentage of the assessed valuation of the property in said district as shown by the last county assessment, in accordance with the terms of act 395 of the Acts of the Legislature of 1921.

Appellees interposed the defense of the thirty-day statute of limitation to the suit of appellants, as well as other defenses which it is unnecessary to mention.

The cause was submitted to the trial court upon the pleadings and the testimony, resulting in a dismissal of appellant’s complaint for the want of equity, from which is this appeal.

We think the action is barred by the 30-day statute of limitation, and for that reason have not set out the other defenses interposed by the appellees nor a summary of the testimony reflected by the record. The district was created on the 26th day of March, 1921, by an ordinance of the city of Rector, under authority delegated to it by § 5652 of Crawford & Moses’ Digest, and the assessment of benefits was made pursuant to and in accordance with the subsequent sections of the statute pertaining to- municipal improvement districts. Property owners in the district are allowed thirty days, under § 5652 of Crawford & Moses’ Digest, to review the action of the city council in creating the district, in the chancery court of the county where such city or town lies; and it is provided in § 5668 of Crawford & Moses’ Digest that all persons who shall fail to begin legal proceedings within thirty days after the publication of the assessment ordinance for the purpose of correcting or invalidating such assessment of benefits, shall be forever barred and precluded. These short statutes of limitation have been upheld by many decisions of this court. One of the latest cases ruling- that property owners must attack the validity of the district and the assessment of benefits within the time fixed by the act creating such a district is Ferrell v. Massie, 150 Ark. 156, 233 S. W. 1083. This action was not filed until the 13th day of July, 1928, and was barred by the sections of the statute referred to. It is true that the record in this case reflects that one of the appellants, the Arkansas-Missouri Power Company, brought a suit within the thirty-day period after the creation of the district, attacking the validity thereof, and that it took a nonsuit on the '25th day of April, 1925, and instituted the instant suit within a year after its nonsuit was taken. This fact did not prevent the statutory bar from attaching under the thirty-day statute of limitations referred to. Actions of this character do not come within the provisions of § 6969 of Crawford & Moses’ Digest, allowing new suits to be brought within one year after taking or suffering a nonsuit upon the action brought within the statutory period of thirty days. If so, the very purpose of a short statute of limitation fixed in the act would be thwarted by preventing the construction of improvements therein within a reasonable time.

No error appearing, the judgment is affirmed.


text:
    Martin v. State.
    Opinion delivered December 23, 1929.

      G. E. Gondray and Bogle $ Sharp, for appellant.

      Hal L. Norwood, Attorney General, and Pat Mehaffy, Assistant, for appellee.
   Humphreys, J.

Appellant was separately tried and convicted, in the circuit court of Arkansas County, of murder in the second degree, and was adjudged to serve a term of five years in the State Penitentiary, upon the following indictment:

“The grand jury of Arkansas County, Southern District, in the name and by the authority of the State of Arkansas, accuse Perry Martin, Ike Sangston, Glenn Sangston, of the crime of murder in the first degree, committed as follows, to-wit: The said Perry Martin, Ike Sangston and Glenn Sangston, in the district, county and Sitate aforesaid, on the 20th day of .April, A. D. 1929, unlawfully, willfully, feloniously and with malice aforethought, and after premeditation and deliberation, did assault, kill and murder one Ed McGrew, by then and there shooting him, the said McGrew, with a rifle, then and there loaded with gunpowder and leaden bullets, and then and there had and held in the hands of him, the said Perry Martin, Ike Sangston, and Glenn Sangston, and with the unlawful and felonious intent then and there, him, the said Ed McGrew, willfully and maliciously to kill and murder, against the peace and dignity of the State of Arkansas. Guy E. Williams, prosecuting attorney. ’ ’

An appeal from the judgment of conviction has been duly prosecuted to this court.

.Appellant assigns as reversible error, first, the insufficiency of the evidence to support the verdict, and second, the refusal of the court to give his requested instructions numbers 18, 19 and 20.

(1) The substance of the evidence introduced by the State was to the effect that as Ed McGrew, deceased, was returning with a party of friends from a dump situated near the Missouri Pacific bridge on White River, in the town of Benzol, to the landing dock, appellant fired a shot at McGrew, which entered his head, and resulted in his immediate death; that at the time the shot was fired McGrew was leaning over engaged in turning the switch of his motor-boat off. The jury accepted this evidence as true, although disputed by the witnesses introduced by appellant, and it is sufficient to sustain the verdict.

Instructions numbers 18, 19 and '20, requested by appellant and refused by the court, told the jury that the evidence introduced by the State did not tend to show a conspiracy, and that the State’s evidence introduced for that purpose was excluded, and should not be considered by the jury. The evidence introduced by the State for the purpose of showing a conspiracy was not objected to by appellant at the time it was introduced, and it was clearly within the discretion of the court whether he would direct the jury not to consider it when he came to instruct the jury. Johnson v. State, 156 Ark. 464, 246 S. W. 516. It did not devolve upon the State to prove any conspiracy, as no conspiracy was charged in the indictment between appellant, Ike Sangston and Glenn Sangston. For the reasons given the court did not err in refusing to grant appellant’s requested instructions numbers 18, 19 and 20.

No error appearing, the judgment is affirmed.


author: Kirby, J., Butler, J., Hart, C. J.,

text:
    Webb v. Adams.
    Opinion delivered December 23, 1929.

      John Owens, Claude A. Ra/nkin and Pinnix & Pinnix, for appellant.

      Tom Kidd, for appellee.
   Kirby, J.,

(after stating the facts). The act appears, from its title indicating the purpose and its terms, to be general, providing for an optional county unit or a consolidated school system for the State, operating equally and uniformly throughout the State, but for the proviso or exception in § 14 reading: “The provisions of this act shall in no way apply to or affect Gosnell Special School District in Mississippi County, Arkansas. Provided, also, that the provisions of this bill shall not apply to Faulkner and Sharp counties.”

Amendment No. 17 reads: “The General Assembly shall not pass any local or special act. This amendment shall not prohibit the repeal of local or special acts.” The language of the amendment is plain and unambiguous, and its meaning clear, disclosing the intention of the people in adopting it, and dispensing with the necessity of seeking other aids for its interpretation. The restrictive provisions of the Constitution on the legislative power relative to the passage of local or special legislation, leaving its exercise to the discretion of the Legislature, had been so disregarded and abused as to create an intolerable condition. Numerous measures were enacted in all sessions of the General Assembly, general in their terms and nature, and from the operation of which from one or more of the counties of the State were excepted, and this amendment was adopted to remedy the evil, and the power of the General Assembly to enact local or special legislation was withdrawn, the General Assembly being prohibited by its terms from passing any local or special act. The effect of excepting from the provisions and operation of the act the Gosnell Special School District and the counties of Faulkner and Sharp was to leave the law applicable only to the remainder of the State not so excepted and the law as to the excepted territory unchanged, as though act 149 of 1929 had not been enacted. Casey v. Douglass, 173 Ark. 641, 296 S. W. 705.

If two counties and a special school district can be excepted from the provisions of a law otherwise general and operative equally and uniformly throughout the whole -State, there would be no reason to say that twenty-five or fifty counties or seventy-four of the seventy-five counties of the State could not be so excepted, leaving its application as a general law to but one county, abrogating by legislative determination and judicial construction the Constitutional Amendment prohibiting the Legislature from passing “any local or special act.” The exclusion of a single county from the operation of the law makes it local, and it cannot be both a general and a local statute. Davis v. Clark, 106 Penn. 384; State v. Mullica Twp., 51 N. J. L. 412, 17 Atl. 941; Miller v. Kister, 68 Cal. 142, 8 Pac. 813; Township of Lodi v. State, 51 N. J. L. 402, 18 Atl. 749, 6 L. R. A. 56. The courts look to the substance and practical operation of a law in determining whether it is general, special or local, and if its operation must necessarily be special or local, it must be held to be special or local legislation, whatever may be its form. 25 R. C. L. p. 815; 1 Lewis’ Sutherland, Statutory Construction, p. 359. A local law is one that applies to any subdivision or subdivisions of the State less than the whole. 3 Words & Phrases, Second Series, p. 172. A law is special in a constitutional sense when, by force of an inherent limitation, it arbitrarily separates some person, place or thing from those upon which, but for such separation, it would operate. Van Cleve v. Passaic Valley Sewerage Cm’rs, 71 N. J. L. 183, 58 Atl. 571, 572; Ry. v. Hanniford, 49 Ark. 291, 5 S. W. 294; Little Rock v. North Little Rock, 72 Ark. 195, 79 S. W. 785.

This act, by reason of the express provision excepting certain counties of the 'State arbitrarily from its operation and limiting it to the territory not excepted, becomes local or special within the meaning of the Con-stitutional Amendment, and was beyond the power of the Legislature to enact, and is consequently void and of no effect, and the court did not err in so holding.

The decree is affirmed.

Mbhabey, McHaney and Butler, JJ., dissenting.

Butler, J.,

(dissenting). The majority of the court has concluded that the provision in § 14 exempting a special school district in Mississippi County and the counties of Faulkner and Sharp from the provisions of bill renders the entire act void as a local bill and within the prohibition of Amendment No. 17, and has therefore decided that the act is uninforcible.

From this decision I must respectfully dissent.

The duty was cast upon the G-eneral Assembly by § 1, article 14, Constitution of 1874, to “maintain a general, suitable and efficient system of free schools whereby all persons in the 'State between the ages of six and twenty-one years may receive gratuitous instruction. ’ ’ This the State has been endeavoring to perform since the adoption of the Constitution with but indifferent success, so that today Arkansas lags behind the majority of its sister States in the point of the average education of its citizens. In some communities there were, because of greater local wealth and number of population, ample funds for educational purposes, while in others the funds for that purpose were wholly inadequate. A part of the youth of the 'State was being educated, a part growing up in ignorance.

An enlightened public conscience became aware that it was the duty of the richer and more favored localities to aid in the education of the children of the poorer communities, and, heeding its voice, the General Assembly of 1929 passed the law under consideration, in aid of other legislation recently passed by which it was expected that educational facilities throughout the State might become equal and uniform, and the blight of illiteracy banished from within our borders.

As gathered from the title and subject-matter of act No. 149, it was the intention of the Legislature to provide for an optional county unit or consolidated school system for the several counties of the State by popular vote. The inclusion of the proviso must have been deemed an immaterial matter, because before the law could become applicable to the counties named in the provision, a majority of the people must have given their assent. 'But the proviso was in direct conflict with the purpose of the act, which was to provide for an optional uniform county unit system for the conduct of the schools for the entire State. In order for the act to fail because of the proviso, this court must determine that, without the proviso, the Legislature would not have passed act No. 149.

Could it be rationally supposed that the Legislature by the enactment of the “County Unit System” was indulging in a mere vain and useless gesture, and in order that this might be the result inserted the proviso. Was it their intention to deceive and beguile the people, which, when it asked for a fish, would be given a serpent?

In any view of the case, can it be assumed that it did not intend and would not have passed the act with the proviso omitted? I say no. The history of the State, the traditions of the legislative body, the necessity for the law, the unmistakable language of the statute itself, the practically unanimous vote by which the statute was enacted, all cry out against any such assumption; but rather from all of this the conclusion is inescapable that if the Legislature, doubtless esteeming the inclusion of the proviso unimportant, had anticipated that the proviso would have made the bill a local measure it would have declined to include it and would have passed the act without it.

It is elementary that every reasonable rule of construction must be resorted to in order to save a statute from unconstitutionality, and presumptions should be indulged in to uphold the validity of laws and not to -strike them down, and where one construction would render it void and another would render it valid, the latter should be adopted. Standard Oil Co. v. Brodie, 153 Ark. 114, 239 S. W. 753; Rice v. Lonoke Road Dist., 142 Ark. 454, 221 S. W. 179; State v. Handlin, 100 Ark. 175, 139 S. W. 1112; Bush v. Martineau, 174 Ark. 214, 295 S. W. 9.

In the case of State v. Jennings, 27 Ark. 419, the rule was laid down, which has since been followed by this court, that where any particular clause is not so large or extensive in its import as the other expressions in the statute, and if from these the true legislative intent can be ascertained, the real intent of the Legislature should be given effect, and the other disregarded.

This court has consistently held that, where a part of a statute is unconstitutional, if it is apparent the Legislature would have enacted the statute without the unconstitutional provisions, such provisions will be disregarded because it is the duty of the court to indulge in every reasonable presumption in order to uphold the validity of the statute. State v. Marsh, 37 Ark. 356; Leep v. Ry., 58 Ark. 407, 25 S. W. 75; Pryor v. Murphy, 80 Ark. 150, 96 S. W. 415; Sallee v. Dalton, 138 Ark. 549, 213 S. W. 762.

It is entirely apparent, taking into consideration the duty resting upon the Legislature to provide equal, adequate facilities for the education of the children of the State, the years it has struggled with this problem, the manifest need of the law, its comprehensive scope and unmistakable terms, the unanimity of its passage, that act 149 would have been enacted without the proviso. As that proviso is repugnant to the remainder of the act, and its retention would render the'entire act unconstitutional, it is our conclusion that the proviso is void, and the act, with the proviso rejected, a valid and constitutional enactment.

Mr. Justice Meitaeey and Mr. Justice McHaney concur in this dissent.

Hart, C. J.,

(on rehearing). According to the decision in Casey v. Douglas, 173 Ark. 641, 296 S. W. 705, the clause, “Provided also that the provisions of this bill shall not apply to Faulkner and Sharp, counties,” expressly excepts those counties from the terms of the act; and the school law as to them is left in force as it was before the passage of the act providing for an optional county unit or consolidated school system. See Acts of 1929, vol. 1, p. 754.

But it is first insisted that the act is not a local one under Amendment No. 17 to the Constitution which reads as follows:

“The G-eneral Assembly shall not pass any local or special act. This, amendment shall not prohibit the repeal of local or special acts.” ■

Impliedly, at least, this court has uniformly held that general laws shall have uniform operation throughout the territorial limits of the State; and there are many decisions to this effect, as will be seen by the reasoning of the court in the cases heretofore decided relating to local or special laws. It has been uniformly held that the subject of the legislation, in order to be a general law, must operate uniformly upon every person or thing of a designated class throughout the territorial limits of the State. Little Rock & Fort Smith Ry. Co. v. Hanniford, 49 Ark. 291, 5 S. W. 294; Little Rock v. North Little Rock, 72 Ark. 195, 79 S. W. 785; McLaughlin v. Ford, 168 Ark. 1108, 273 S. W. 707.

In the case last cited, the court said that the difference between a general and special statute is that a general law applies to all of a class while a special statute applies to one or two, or part of a class only.

Again, in Farelly Lake Levee Dist. v. Hudson, 169 Ark 33, 273 S. W. 711, the court said that a general law must relate to,persons and things as a class, and must operate uniformly throughout the State upon the whole subject or whole class, and must not be restricted to any particular locality within the State.'

Now, if a general law must apply throughout the territorial limits of the State, the exclusion of one or more counties from its provisions makes it a local statute. This is the common and well-known difference between general and local acts.

Article 4, § 104, of the Constitution of Alabama, adopted in 1901, provides that the Legislature shall not pass a special, private or local law in certain enumerated cases. Section 110 of the same article is as follows:

“A general law within the meaning of this article is a law which applies to the whole State; a local law is a law which applies to any political subdivision or subdivisions of the 'State less than the whole; a special or private law within the meaning of this article is one which applies to an individual, association or corporation.”

The framers of the Alabama Constitution define general and local laws according to the common understanding of the meaning of the language used, and courts have no rigid to do other-wise. In the construction of this clause of the Constitution in State v. Pitts, 160 Ala. 133, 49 So. 441, 135 A. S. R. 79, it was held that a prohibition law which, in some of its major parts, applies to all of the State, does not lose its character as a general law because it retains in force local prohibition laws already in operation in some parts of the State. The reason is that the constitutional provision must be considered as applicable to each separate and distinct act. By way of illustration, the court said that there might be a proper classification of the schools of the State, as to regulations for opening and closing the schools in different localities and for different control and management to meet the needs of the various localities in conformity with different conditions. When a law, as to its material and important features, applies to the whole State, it will not be converted into a local or special law because it does not operate alike in detail throughout the State. Reasonable classification can always be made under a general law.

In the application of this rule in LeMaire v. Henderson, 174 Ark. 936, 298 S. W. 327, the court sustained a statute classifying school districts in certain counties, and held that in classifying school districts the Legislature may consider the density of population, the wealth of the county, the system of roads, and the topography of the country with reference to whether it is hilly or not.

It is not the form, but the operation and effect, which determines the constitutionality of a statute. All of the counties must be included, or the law is not general. The exclusion of one or more counties from the operation of the act makes it local. If one may be excluded, where shall the line be drawn, and who is to judge?

In discussing the matter in Edmunds v. Herbrandson, 2 N. D. 270, 50 N. W. 570, 14 L. R. A. 725, the Supreme Court of North Dakota said: “If an act is not special because it relates to all except a single county in the State, without any reason for the classification, then the Legislature can accomplish indirectly what it is beyond their power to bring about by direct steps. Whenever it is desired to introduce a new rule as to a single county, a general law can be passed establishing that rule in all the counties, and then another law can be enacted re-establishing the old rule in all counties except the one singled out to be governed by the new rule. The first law would be clearly general, and, under what it is claimed is the New York doctrine, the second act could not be assailed as special legislation. This would, indeed, be an ingenious mode of neutralizing the constitutional prohibition against special legislation. We would not give it our sanction, however it might be buttressed by authority.”

In the case at bar, the Legislature expressly provided that the law shall not be applicable in two counties. As said by the court in the case last cited, these counties are either left out of the provisions of the law or there is no statutory rule permitting- them to take advantage of the provisions of the act. Whatever view is taken, Faulkner and Sharp counties are placed in a separate class by themselves. It would not do to say that the Legislature might arbitrarily group together two counties and leave them outside of the provisions of the law. This would amount to allowing the Legislature to wholly disregard the 'Constitutional amendment and leave the Legislature at its own will to say whether or not the law shall apply throughout the whole territorial limits of the State or whether its operation should be restricted to certain counties. While proper classification is allowed, it must stand upon some reason, and have regard to the character of the legislation and cannot be arbitrarily used by the Legislature.

Therefore, we are of the opinion that the law is not a general law because it does not have a uniform operation throughout the State. The entire acts presents a system for the establishment and regulation of the common schools in the various counties, and two counties are left out of the act, and the exclusion of one or more counties from the operation of the act makes it local. The classification of Faulkner and Sharp counties in a class by themselves is arbitrary and prevents it being a general law because the classification is without any reasonable basis.

It is next sought to uphold the statute by invoking the well-established rule that a statute may be in part constitutional and in part unconstitutional, and if it is separable in its nature, so that the valid and invalid parts may stand independent; and if there is no such connection between the constitutional and unconstitutional parts as the Legislature would not have elected to enact the constitutional part without the other, the statute will be held good except in that part which is in conflict with the ’Constitution.

It is equally well-settled that if the unconstitutional part is so connected with the remainder that they are dependent upon each other and cannot be separated, or that the valid part, if left alone, would so change the character of the original statute that the Legislature would not be presumed to have enacted it without the other, the whole must be set aside.

In Poindexter v. Greenhow, 114 U. S. 270, 5 S. Ct. 903, Mr. Justice Matthews, in discussing the question, said:

“It is undoubtedly true that there may be cases where one part of a statute may be enforced as constitutional, and another be declared inoperative and void, because unconstitutional; but these are cases where the .parts are so distinctly separable that each can stand alone, and where the court is able to see, and to declare, that the intention of the Legislature was that the part pronounced valid should be enforceable, even though the other part should fail. To hold otherwise would be to substitute for the law intended by the Legislature one they may never have been willing by itself to enact.”

Again, in Spraigue v. Thompson, 118 U. S. 90, 6 S. Ct. 988, the court had under consideration a pilotage act of the State of Georgia, which was claimed to be in conflict with an act of Congress on the subject. The court was urged to disregard certain exceptions in a section of the statute which exempted a certain port in the State of Georgia and one in South Carolina and a certain port in the State- of Georgia and one in Florida, contrary to the provision of the act of Congress on the subject. The Supreme Court of Georgia had held the statute valid in the application of the rule that the unconstitutional part exempting the ports above referred to, might be stricken out and the remainder might stand, upon the principle that a separable part of a statute ■which is unconstitutional may be rejected and the remainder preserved and enforced. Justice Matthews delivered the opinion of the court in this case and said:

“But the insuperable difficulty with the application of that principle or construction to the present instance is that, by rejecting the exceptions intended by the Legislature of Georgia, the statute is made to enact what confessedly the Legislature never meant. It confers upon the statute a positive operation beyond the legislative intent, and beyond what any one can say it would have enacted in view of the illegality of the exceptions. We are, therefore, constrained to hold that the provisions of § 1512 of the Code of Georgia cannot be separated so as to reject the unconstitutional exceptions merely, and that the whole section must be treated as annulled and abrogated by § 4237 of the Revised Statutes.”

This rule has been uniformly recognized both by the Supreme Court of the United States and by this court. Employers’ Liability Cases, 207 U. S. 463, 28 S. Ct. 141; Leach v. Smith, 25 Ark. 246; Bittle v. Stuart, 34 Ark. 224; Ex parte Jones, 49 Ark. 118, 4 S. W. 639 and State v. Williams-Echols Dry Goods Co., 176 Ark. 324, 3 S. W. (2d) 340. In the late case of Williams v. Standard Oil Company, 278 U. S. 235, 49 S. Ct. 115, the court quoted from an opinion of the New Jersey Court of Errors and Appeals, delivered by Judge Pitney, (afterwards a Justice of the Supreme Court of the United States), who after setting forth the rule above announced, said:

“In seeking the legislative intent, the presumption is against any mutilation of a statute, and the courts will resort to elimination only where an unconstitutional provision is interjected into a statute otherwise valid, and is so independent and separable that its removal will leave the constitutional features and purposes of the act substantially unaffected by the process.”

The legislative journals show the act as originally introduced did not contain the proviso excepting Faulkner and Sharp counties from the terms of the act. How can we know that the proviso was not the consideration or inducement for the Legislature to pass the statute? We do know that the proviso is a part of the statute which we are asked to hold constitutional, and that the statute does not mean the same thing without the proviso as it does with it. The statute with the proviso does not apply to Faulkner and Sharp counties. Without the proviso it would apply to the whole State. We have not been able to find any authorities authorizing us to separate a statute which by its own terms is indivisible, or to construe a statute as separable within the meaning of the rule above announced, when to do so would give the part of the statute allowed to stand a wholly different effect and meaning from the statute as a whole. We have reached the conclusion that the attempt to interpret the act by upholding part and rejecting part of the law, as stated in Washington v. State, 13 Ark. 75, is equivalent to the usurpation 'by the court of legislative power.

It is manifest that the territory will be enlarged by the elimination of the proviso that the act shall not apply to Faulkner and Sharp counties, and the territory over which the law is to operate would be enlarged to the extent of these two counties which are specifically named in the act, and this would be in practical effect judicial legislation, which we are not willing to undertake to accomplish what the school men earnestly insist is a wise and beneficial change in our school law. Indeed, we would have been content to let our original opinion stand without enlargement, but for the strong insistence in the matter by leading school men.

The established rule on the subject, laid down by Lewis’ Sutherland Statutory Construction, (2d ed.) vol. 1, § 306, reads as follows:

“If, by striking- out a void exception, proviso or other restrictive clause, the remainder, by reason of its generality, will have a broader scope as to subject or territory, its operation is not in accord with the legislative intent, and the whole would be affected and made void 'by the invalidity of such part.
“An act of a general nature which the Constitution required to have a uniform operation throughout the State excepted certain counties from its operation. This rendered the whole act void. After striking* out the exception, if the general words gave the act operation in the excepted cQunties, such effort would be directly contrary to the expressed intent of the lawmaker.”

It is true that article 14 of our Constitution deals with the subject of education and requires the Legislature to make provision for the support of our common schools. It does not require, however, the Legislature to accomplish that purpose by local or special legislation. On the other hand, § 3, of the article expressly provides that the General Assembly shall provide by general laws for the support of the common schools by taxes. The section also provides that the General Assembly, by general law, may authorize school districts by a vote of the qualified electors to vote a millage tax. Amendment No. 14 to the 'Constitution only changes the section so as to allow the voters to increase the school tax.

In this connection we do not wish to be understood as impairing in the least the force of the decisions in State v. Crawford, 35 Ark. 236, which holds that a statute settling accounts between the State and certain parties is a general and not a special act; and in Waterman v. Hawkins, 75 Ark. 120, 86 S. W. 844, holding that statutes establishing or abolishing* separate courts relate to the administration of justice and are not either local or special in their operation. This is in recognition of that principle of State sovereignty under which the State, through its Legislature, may protect its own interest, and by virtue of it the Legislature may treat every subject of sovereignty as within a class by itself, and bills of that ldnd are usually held to be general and not local or special laws. There are cases where the State, by its .Legislature, commits the discharge of its sovereign political functions to agencies selected by it for that purpose, and such acts have usually been held to be general acts.

Neither do we wish to impair the force of cases like Harwood v. Wentworth, 162 U. S. 547, 16 S. Ct. 890, where Congress by legislation fixed the salaries of county officers of the territory of Arizona and thereby displaced the system of fees and allowances; and the act was held to be a general one, and not a local or special law. The court said that the act was general in its operation, and applied to all counties in the territory. The counties were classified for the purpose of fixing the salaries of the county officers according to population, wealth, and other things, which were calculated to furnish a reasonable basis for the classification so that, as nearly as practical, the officers would be compensated according to the amount of work done.

In the case at bar, the exemption of two counties from the application of the act did not constitute any reasonable basis for. classification for school purposes. Indeed, there was no attempt at classification. By the terms of the act, Faulkner and Sharp counties were specifically exempted from its provisions, and we are asked by a judicial interpretation to place them under the operation of the act. While it has been the policy of this court, in construing statutes relating to schools and school districts, to give them a liberal construction and to uphold them when that can be done without violating the Constitution, we have no power by judicial construction to put a law in force in a county or counties where the Legislature expressly provided it should not apply.

The result of our view is that our former opinion was correct, and the motion for rehearing will be denied.

Justices Mehaffy, McIIaney and Butler dissent.


author: Kirby, J.,

text:
    Murdock v. Reynolds.
    Opinion delivered December 23, 1929.

      Jno. E. Harris and Compere & Compere, for appellant.

      Gaughan-, Sifford, Godivin & Gaughan, for appellee.
   Kirby, J.,

(after stating the facts). It is insisted for reversal that the court erred in refusing to allow the parol evidence introduced, explaining the terms of “a turnkey job” under the provisions of the contract, and in giving instructions Nos. 1, 2 and 3 for the plaintiff, and refusing to give requested instructions Nos. 8 and 10 for the appellant. , . i

Instruction No. 3, complained of, told the jury that, “under the terms of the contract and under the evidence herein,” that the plaintiff was required to drill the well under the direction and supervision of the Lion Oil and Refining Company, as well as the defendant, and the defendant was bound by any requirements made by a duly authorized representative of the Lion Oil and Refining Company. This instruction was a direct contradiction of the terms of the contract relative to the authority of the representative of the Lion Oil and Refining Company, and the right of the defendant, neither of them having the right to the direction or supervision of the drilling of the well, but only to request the making of a certain test of the formations and oil sand as the drilling proceeded, and, certainly, it was an instruction on the weight of the testimony directing the jury that they were required to find from it that the plaintiff was required to drill under the direction and supervision of said oil company, as well as of the defendant, and was bound by any requirement made by a duly authorized representative of the Lion Oil and Refining Company. This instruction was not only an incorrect interpretation of the contract, but there was no evidence upon which to base it, and it amounted, in effect, to a peremptory direction, and was necessarily erroneous.

If the contract, by its terms, was free from ambiguity, and provided whose duty it should be to furnish the necessary casing in the drilling and completion of the well, then it was the province of the court to construe it, and tell the jury upon whom the duty rested, and his liability for failure to perform it. Under the terms of the contract, it is clear that the parties only contemplated the necessity for using two kinds of casing, surface casing, which was to be furnished by the contractor, who was also to set any other string of casing necessary to be used by the customary methods employed for cementing the same, and to reset same at his own expense, if it should fail to hold. It is equally clear that if oil or gas was encountered at any depth under 3,000 feet in paying quantities, he was required to complete the well in a workmanlike manner with casing set, cemented, drilled in and bailed at his own cost and expense. When a test was required and the setting of casing, exclusive of surface casing, which the contractor agreed to buy and set at his own expense, the owner was bound to purchase and furnish the contractor with the casing required by the owner to be set by the contractor, who was to pay for all labor and fuel incident to the setting’ of said casing at any given point, such consideration being included in the contract price. The contract was termed to be “a turnkey job,” with the exception of its terms applicable to the different depths of the well, and the prices to be paid at the completion of the well for the different depths, “less and except the cost of all casing except the surface casing, which is to be furnished by the owner.”

Each of the parties insist that it was the duty of the other to furnish the casing for shutting off the flow of the artesian water, the contractor, that such casing could not be termed surface casing that he was required to furnish, and the owner, that it was not test casing, the only kind he was required to pay for. The well was a dry hole, and no test casing, as provided by the contract, was required to be furnished, since neither oil nor gas was discovered in sufficient quantities before the well was completed, at the depth required by the contract, to indicate that a test should be made, and none was made. The contractor testified that no test for oil or gas was made when the 12%-inch casing was set in boring down at that point, nor any test by the drill stem, that no oil sand was encountered there, and that the 12%-inch casing, set at 560 feet, and the 10-inch casing, set at 700 feet, was not set for the purpose of making an oil or gas test, “but to cut off water.” Under the plain provisions of the contract, unambiguous in the opinion of the writer, the court should have directed the jury that no test casing, within the meaning of the contract, was required or attempted to be set, and that the owner was not liable to the payment of the price of any other casing set for the purpose of shutting off the artesian water flow, without regard to whether such casing could be classified as surface casing, which the contractor was also obligated to supply.' But if the last sentence of the contract quoted, providing that the contract should be “a turnkey job,” with the exception of its terms applicable to the different depths of the well, and the prices to be paid at the completion of the well for the different depths, “less and except the cost of all casing, except the surface casing, which is to be furnished by the owner, be regarded as making the contract ambiguous, then the court should have permitted the introduction of parol testimony, explaining the customary local meaning of the words, “a turnkey job,” under the terms of the contract, to- shoAv who was obligated to pay for the casing, and erred in not doing so. Batton v. Jones, 167 Ark. 478, 268 S. W. 857; Alexander v. Williams-Echols Co., 161 Ark. 363, 256 S. W. 55; 27 R. C. L. 170 (19); McCarthy v. McArthur, 69 Ark. 313, 63 S. W. 56; Paepcke-Leicht Lumber Co. v. Talley, 106 Ark. 400, 153 S. W. 833.

If the contract made no provision for payment by the owner for casing necessary to be used in shutting off the flow of artesian water, and, under its terms, the owner was required only to pay for the casing necessary for making a test of the well at its completion or on discovery of oil or gas signs 'before that depth was reached, warranting the making of such a test, as appears to be the case, then necessarily the payment for any other casing than that for which the owner was bound under the terms of the contract — the test casing — would have to be made by the contractor, who was to furnish all materials and labor and complete the well in a workmanlike manner for the amount stipulated in the contract, in accordance with his agreement. Ingham Lumber Co. v. Ingersall, 93 Ark. 447, 125 S. W. 139, 20 Ann. Cas. 1002; Kelly v. Zenor, 150 Ark. 466, 252 S. W. 39; Smith v. Dierks Lumber & Coal Co., 130 Ark. 9, 11, 196 S. W. 481; Polzin v. Beene, 126 Ark. 46-50, 189 S. W. 654; 6 R. C. L., § 364, p. 997.

Instruction No. 2 was abstract and not supported by tbe testimony. It appears undisputed that no test casing was required to be furnished by the owner. Instruction No. 1 was also erroneous in defining test casing for which appellant was bound to pay under the contract, as all casing necessary to be used in the well other than surface casing, and the error was not cured by giving appellant’s requested instruction No. 5, allowing the jury to determine whether the extra casing used and sued for was required for a test for oil or gas, etc., which is in conflict with and contradictory thereof.

Instructions Nos. 8 and 9, requested by the appellant, ought to have been given.

It follows that, because of the errors designated, the cause must be reversed, and will be remanded for a new trial.

It is so ordered.


author: Mehaeey, J.

text:
    Morris & Company v. Alexander & Company.
    Opinion delivered December 23, 1929.

      M. P. Huddleston, for appellants.

      D. G. Beauchamp, for appellees.
   Mehaeey, J.

On January 2, 1901, Alexander and others executed a deed of conveyance to certain lands therein described to the National Box Company, and the National Box Company thereafter conveyed to Morris & 'Company. The appellants occupied the lands conveyed until the first of October, 1921. On that date appellants and the National Box Company and G. L. and Lillie R. McDonald brought suit in the Greene Chancery Court, praying for the construction of the deed executed of January '2, 1901.

The appellants contended that, under a proper construction of the deed, it operated as a conveyance of the lands therein described in fee simple to the National Box Company, the grantor of appellant, and that action in the chancery court was instituted to have the title of appellant to the land confirmed. The defendants in that suit, Alexander and others, contended that a proper construction of the deed is that it conveyed only the right to remove the timber, and that the right to remove the timber had terminated by the removal of the timber. The case was tried in the Greene Chancery Court, and the court held that the deed operated as a conveyance of the lands in fee simple to the National Box Company. An appeal was taken to this court, and on November 23, 1925> this court reversed the decree of the Greene Chancery Court, and, among other things, said:

‘ ‘ Our conclusion is that the deed before us conveyed an estate upon limitation, and that, upon the happening of the event, namely, the removal of the timber, the estate terminated and reverted to the grantors or their heirs. Such being the case, the decree of the chancery court was erroneous, and the same is reversed, and the cause remanded with directions to enter a decree in favor of appellants in accordance with this opinion.” Alexander v. Morris & Co., 168 Ark. 31, 270 S. W. 88.

The facts in the original suit .and the deed of conveyance will he found in the statement in the above case, 168 Ark. 31, 270 S. W. 88, and will not be copied here.

When the case came on for trial again in the Greene Chancery Court, on April 6, 1925, both parties being present, the cause was submitted and heard on the original complaint of plaintiff and exhibits thereto, the original answer and cross-complaint of defendants and exhibits thereto, and the mandate of the Supreme Court in said cause. The chancery court in its decree stated that the time had expired for the removing of the timber, and adjudged and decreed that the complaint of the plaintiffs be dismissed for wiant of equity, and the prayer of the cross-complaint of defendants and cross-complaints be granted, and that all the right, title and interest held or claimed by Morris & Company, National Box Company, G. L. McDonald and Lillie McDonald, or either of them or their grantees under and through the deed sued upon by the plaintiffs to the lands, describing them, be and the same is hereby canceled, set aside and held for naught, etc., and that the plaintiffs or their grantees are forever enjoined from asserting or attempting to assert any interest in said land by reason of said deed.

On August 28, 1926, appellants filed a complaint in the Greene Chancery Court, asking that the case be re-docketed, and that the decree be opened and plaintiffs permitted to file their petition for the recovery of betterments to said lands; and, if this relief be denied, then they pray that this petition be treated as a bill of review, and that said decree be set aside and plaintiffs be permitted to file their complaint for the recovery of betterments to said lands, and for the recovery of taxes and special assessments; and, if this relief be denied, then plaintiffs pray that this pleading be treated as an original action for the recovery of betterments on said lands, and that they have decree against defendants for the enhanced value of said lands, with interest, and that they be decreed a first lien on said lands until paid. Plain tiffs then set out the amounts they are entitled to recover for taxes and assessments and betterments.

No appeal was prosecuted from the decree of April 6, 1925, and no action was taken by appellants until August 28, 1926.

Not only are the parties bound by the opinion of this court in the case of Alexander v. Morris & Company, 168 Ark. 31, 270 S. W. 88, decided February 23, 1925, but they are bound by the decree of the chancery court from which they took no appeal. The Supreme Court, when the case was here before, reversed the decree and remanded the cause, with directions to enter a decree in favor of appellants in accordance with the opinion. When the trial was had in the chancery court, after the cause was remanded, the appellants could in that suit at that time have litigated all the questions they now seek to litigate.

When this case was here on appeal, we said: ‘ ‘ There is, in the first place, a stipulation as to the use to which the land is to be put, that is to say, ‘for the purpose of cutting and removing the timber therefrom and conveying the same to and from the sawmill of said grantee/ There is a further covenant that the grantees should pay the taxes on the land, and a provision in express terms that the title should revert to the grantors and their heirs * * and the deed conferred upon the grantee the privilege of ‘reverting’ the several tracts, and thereby escaping the burden of paying taxes thereon as the timber should be removed therefrom.”

This court then reversed the decree, and remanded the cause with directions to enter a decree in favor of the appellants in accordance with the opinion.

Whatever was decided on the first-appeal remains the law of the case for all further proceedings. “This general rule is grounded on public policy, expediency and reason. The rule has been so long established and so uniformly adhered to that it is not a mere matter of practice or procedure. ” Henry v. Gulf Refining Co of La., 179 Ark. 138, 15 S. W. (2d) 979; Taliaferro v. Barnett, 17 Ark. 359, 1 S. W. 702; Vogel v. Little Rock, 55 Ark. 609, 19 S. W. 13; Miller Lbr. Co. v. Floyd, 169 Ark. 473, 275 S. W. 741; Alford v. Prince, 178 Ark. 159, 10 S. W. (2d) 10; Dixie Culvert Mfg. Co. v. Perry County, 178 Ark. 454, 12 S. W. (2d) 10 ; Arkansas P. & L. Co. v. Orr, 178 Ark. 329, 11 S. W. (2d) 761.

When the case was tried in the chancery court, after it had been remanded, appellant could have litigated every question it now seeks to litigate, and, not having done so, it is estopped by the decree of the chancery court. This court has held that parties are bound not only on the questions actually tried by the court, but on all questions that might properly have been determined in said suit.

The rule has been often announced in this court that the judgment or decree of a court of competent jurisdiction operates as a bar to all defenses, either legal or equitable, which were interposed or which could have been interposed in the former suit. Gosnell Special School District No. 6 v. Baggett, 172 Ark. 681, 290 S. W. 577; Taylor v. King, 135 Ark. 43, 204 S. W. 614.

Our conclusion is that all the defenses and causes of action mentioned in appellants’ petition could have been settled in the original suit. The decree is therefore affirmed.