text:
    Tucker v. Stell.
    Opinion delivered June 15, 1925.
    1. Partnership — right to contribution. — Where, after settlement of partnership accounts, a partner paid in full an outstanding note against the firm, he is entitled to recover from his co-partner one-half of the sum so paid with interest from date of payment.
    2. Fraudulent conveyance — gift to wife. — Where -a husband sold land and deposited the proceeds to his wife’s credit as a gift to her, it was proper to subject the deposit to the payment of his debts.
    3. Trusts — insufficiency of evidence. — In a suit to hold the proceeds of land deposited in his wife’s name subject to the husband’s debts, where the deed from the wife’s father to the husband expressed a consideration of $100, and this land was vacant and had to be improved before it had any usable value, and the husband made all improvements and, after holding it for 27 years, sold it for $3500, finding that the property was not subject to a trust in favor lof the wife wias justified, though she testified that her father intended a trust in her behalf.
    4. Homestead — exemption of proceeds. — Although property was a homestead, and not subject to payment of the owner’s debts, the proceeds of the sale thereof were not protected beyond exemption as to personal property.
    5. Partnership — contribution—interest.—Where a partner paid the balance due on a partnership note bearing 10 per cent, interest, and took an assignment thereof, he is entitled to hold his co-partner liable for one-half of the amount so paid with 6 per cent, interest.
    Appeal from Ashley Chancery Court; E. G. Hammock, Chancellor;
    modified.

      G. P. George and Frank StranguJays, for appellant.

      Compere & Compere, for appellee.
   McCulloch, C. J.

Appellant, S. Gr. Tucker, and appellee, W. A. Stell, were copartners in the operation of a fanning business in Ashley County, Arkansas, during the years 1917, 1918, 1919 and 1920. They became indebted to the People’s Bank of Portland, Arkansas, in a large sum of money, which was reduced to the sum of $1,712.24, and on March 3,1921, they executed to the People’s Bank their negotiable note for that amount, payable on November 15th thereafter, with interest from date at the rate of ten per cent, per annum. The note was signed by the copartnership and indorsed by the copartners individually. The note was paid down to $740.14 by the copartners, and in March, 1922, there was a final settlement between the parties of the partnership accounts, and thereafter Tucker failed to pay anything more on the debt and pleaded his inability to do so. On July 20,1922, appellee paid to the bank the full amount of said balance due on the note, and one-half of this amount was credited on the note, leaving, according to the note itself, a balance of $370.07 apparently due and unpaid, and in this condition the note was transferred to appellee by the bank.

In the year 1895 Mr. Cammack, the father of S. G. Tucker’s wife, conveyed to the latter a vacant lot in the town of Portland, the deed reciting a cash consideration in the sum of $100. Tucker subsequently added by purchase a small strip of ground to the acre conveyed to him as aforesaid, and there is a controversy as to the area of the strip thus added. This controversy, however, is unimportant in view of the conclusion we have reached in the case. Subsequently, Tucker built a home on the lot conveyed to him by Cammack, and the place was occupied by Tucker and his wife as a homestead. On March 7, 1923, S. G. Tucker sold and conveyed to one Trim the house and lot in question, including the strip of ground which he had- added to the lot conveyed to him by Mr. Cammack. The consideration for this deed was the sum of $3,500, paid to S. G. Tucker by Trim. The payments were'made by two cheeks, each for the sum of $1,750, payable to S. G. Tucker, and he deposited the same in the Portland Bank at Portland, Arkansas, in the name of his wife, Mattie Tucker. Tucker then removed to Texas, and, about the time he was moving, appellee instituted an action in the chancery court of Ashley County against S. G. Tucker and his wife, Mattie, and the Portland Bank, seeking,to recover the amount which he claimed that Tucker owed him by way of contribution of the amount paid to the People’s Bank, and to subject to the payment of this debt the money deposited in the Portland Bank to the credit of Mrs. Tucker. Appellee also instituted an action at law against the same parties and for the same purpose, but the action was transferred to the chancery court, and the two actions were consolidated and tried together. The court, at the beginning of the action, issued an injunction restraining the Portland Bunk from paying out the funds held to the credit of Mrs. Tucker to the extent of the sum of $800, which was sufficient to pay appellee’s debt and interest. Appellee claimed $370.07, half of the amount that he had paid to the People’s Bank on the note, together with interest at ten per cent, per annum from the date of payment. The court heard the case on testimony adduced orally and by an agreed statement of facts and rendered a decree in favor of appellee for the recovery of $370.07, with interest at ten per cent, from July 20, 1922, amounting in all to the sum of $445.23, and decreed that this sum be paid by the Portland Bank out of the funds held to the credit of Mrs. Tucker, and an appeal has been duly prosecuted to this court.

We are of the opinion that the testimony in the case fully sustains the finding of the chancellor, and that the law applicable to the facts of the case authorized the relief granted under the decree appealed from.

There was originally an issue in the case as to whether or not the partnership accounts were unsettled. In the pleadings,! appellant S. G. Tucker alleged that the accounts were unsettled, and that on a final accounting between the parties appellee was indebted to him more than the amount claimed by the latter on the note. The evidence is clear, however, that prior to the commencement of this action there was a complete settlement between the parties, and that there were no other outstanding accounts or equities to be adjusted between them. That feature of the defense has been abandoned, and it is now conceded that appellant S. G-. Tucker is liable to appellee for one-half, of the amount paid by appellee to the People’s Bank ini discharge of the copartnership indebtedness. It is insisted, however, that the decree subjecting the funds in the bank to the credit of Mrs. Tucker to the payment of this indebtedness is not correct. Her contention is that the lot in Portland was conveyed by her father to her husband in trust for her use and benefit, that the proceeds of the sale belong to her. and that they were not liable for her husband’s debts The proof abundantly warrants the conclusion that Tucker was insolvent at the time he paid the proceeds of the sale of his homestead to his wife. The consideration for the deed was actually paid to him by check, and he paid it over, to be deposited in the bank to the credit of his wife. This money should be subjected to the pay ment of the debts of S. G-. Tucker, not for the reason that Mrs. Tucker was estopped to claim the property by having permitted her husband to use it as his own, but for the reason that the property never belonged to Mrs. Tucker at all and the money was placed to her credit as a voluntary gift to her. It is claimed on behalf of Mrs. Tucker that the conveyance by Cammack to S. Gr. Tucker was intended as the creation of a trust in favor of Mrs. Tucker, but the proof does not warrant a finding to that effect. It is true that Mrs. Tucker testified that such was her father’s intention, but she states no agreement or fact upon which a conclusion could be based that there was in fact an intention to create a trust. On the contrary, her statement in this regard is borne down by other circumstances which contradict the theory that there was an •intention to create a trust. In the first place, the deed itself expressed a cash consideration of $100. The lot conveyed was vacant property and had to be improved before it had any usable value. All of the improvements on the place were made at the expense of S. G. Tucker himself, and he sold the property after holding it for twenty-seven years in his own name and received the sum of $3,500 therefor. It is therefore not a question of estoppel involved in the case, but a question whether or not Mrs. Tucker has proved that the property was conveyed to her husband in trust for her. The chancellor concluded that such was not the case, and we think his finding was justified by the proof of circumstances in the case. We must, therefore, treat the property as having been owned and improved and sold by S. G. Tucker. The property was a homestead and therefore not subject to the payment of his debts, but the proceeds of the sale, while being held as money, were not exempt except to the extent of exemptions allowed in personal property to a debtor. There has been no attempt to claim the money as exempt under the law. In fact, the amount of money held is far above the amount of the exemption, for, as before stated, he turned over to his wife the full purchase price of $3,500. He was insolvent at that time, and his creditors were entitled to have this money subjected to the payment of his debts. The fact that the proceeds of the money accrued from the sale of the homestead does not operate as any protection beyond that afforded by the exemption laws with reference to personal property.

Counsel for appellant rely mainly on the decision of this court in Davis v. Yonge, 74 Ark. 161, as supporting their contention that Mrs. Tucker was entitled to hold this fund. The facts of that case are entirely different from the facts proved in the present case. In that case the proof was that the homestead was sold for $5,000, and that the wife refused to sign the deed unless she was paid a consideration of $400 for doing so, and that there was an agreement carried out whereby she received that sum, which was invested in other lands sought by creditors of the husband to be subjected to his indebtedness. In disposing of the case, Judge Riddick, speaking for the court, said: “But the relinquishment of dower and homestead rights on the part of the wife upon a sale of the land by the husband is a sufficient consideration to support a reasonable settlement upon her out of the proceeds of the sale.* * * Now, Davis sold his homestead for $5,000, and out of the proceeds, according to the testimony of himself and wife, he paid her $400, a sum that was not so out of proportion to the consideration as to indicate fraud.” In the present case there is no proof at all that Mrs. Tucker was paid any sum of money in consideration of her signing the deed to the homestead,, but, as a matter of fact, the whole — not merely a part-— of the consideration was paid over to her by her husband. It is obvious therefore that the case cited has no application at all to the present one.

It is finally contended that the court erred in allowing appellee to recover interest at the rate of ten per cent, per annum. We are of the opinion that this contention of counsel for appellant is sound. The original note called for interest at the rate of ten per cent, per annum, and appellee paid the accumulated interest up to that date at the contractual rate. Appellant Tucker became indebted to appellee, not by the obligation assumed in the note itself, but by reason of the legal obligation which arose from the payment by appellee of the amount which appellant Tucker should himself have paid. The note itself was discharged by the payment, notwithstanding the formal transfer to appellee as one of the obligors. Exchange National Bank v. Chapline, 109 Ark. 242. The rate of interest on the debt of Tucker to appellee was controlled, not by the original contract, but by the obligation which arose by operation of law, and the legal rate 'of interest is six per cent, per annum instead of ten. The decree is modified so as to correspondingly reduce the amount of recovery,'and, as so modified, the decree will be affirmed.


source: Caselaw Access Project

author: McCulloch, C. J.

license: Public Domain

text:
    McMillan v. Farmers’ Bonded Warehouse.
    Opinion delivered June 15, 1925.
    1. Appeal and error — conolusiveness of verdict.' — A verdict based upon conflicting evidence is conclusive upon appeal.
    2. Warehousemen — liability ‘of bondsman — Since it is unlawful under Crawford & Moses’ Digest, § 10420, for a warehouse to do business without a certified warehouseman in charge, a warehouseman’s bond, specifying no particular term, will be limited to a term during which a certificate was granted, and will not extend beyond that period, though the warehouseman continued in charge without a certificate.
    3. Warehousemen — liability of bondsmen. — Sureties on a warehouseman’s bond held not liable for the value of cotton in warehouseman’s hands, which was lost or misappropriated after the bond expired.
    4. Warehousemen — liability for loss of goods. — A warehouseman is liable for his negligence or misconduct in losing or misappropriating cotton stored in the warehouse after his certificate of qualification had expired, though the sureties on his bond were not liable therefor.
    Appeal from Polk Circuit Court; B. E. Isbell, Judge;
    reversed in part.

      Pipkin & Frederick, for appellant.

      Norwood & Alley, for appellee.
   McCulloch, C. J.

Appellee was organized as a corporation pursuant to statute (Crawford & Moses’ Digest, § 10404 et seq.) for the purpose of operating a warehouse in the town of Mena. The statute reads as follows:

“Section 10420. Corporations chartered hereunder shall have the right to erect, purchase or lease and operate warehouses, buildings, elevators, storage tanks, silos, and such other places of storage and security as may be necessary for the storage, grading, weighing and classification of cotton, wool, wheat, corn, rice, alfalfa, fruit, silage and other farm, orchard and ranch products, and all weights, grades and classifications shall be made in accordance with the standards of weights, grades and classifications prescribed by law and by the 'Board of Supervisors. Before such corporation shall be permitted to open its doors for business, and, in order for it to continue to transact business, the officer or employee in active management of its warehouse must have a certificate from the Board of Supervisors of Warehouses as a certified warehouseman. In order to receive such certificate, such person must present satisfactory evidence to the board that he is competent to discharge the duties of such position, the kind and character of evidence to be presented to the board to be stated by the board in the rules promulgated by it for such purpose. Upon satisfactory evidence, the board shall issue a certificate showing that such applicant is a certified warehouseman. Provided, however, that the life of any such certificate shall be one year, at the expiration of which time the applicant must obtain a new certificate.”

A charter was granted to appellee a short time prior to January 1, 1921 — the exact date not appearing in the record — and Ode McMillan, one of the appellants, was employed by the corporation as warehouseman to manage the business. McMillan obtained a certificate in accordance with the provisions of the section just quoted above and entered upon the discharge of his duties. He executed to'appellee a bond with his co-appellants as sureties thereon, which said bond reads as follows:

“Know all men by these presents: That Ode McMillan, as principal, and W. B. McMillan, 0. A. Liles, D. E. Little and J. W. McMillan, as sureties, are firmly bound to the Fármers’ Bonded Warehouse of Mena, Arkansas, in the penal sum of one thousand dollars, lawful money of the United States of America, for the payment of which well and truly to be made we do jointly and severally bind ourselves, our legal representatives, successors, heirs and assigns, firmly by these presents. The conditions of this obligation are such'that whereas the said Ode McMillan has been selected as warehouseman by the said Farmers.’ Warehouse of Mena, Arkansas, now, if the said Ode McMillan shall faithfully perform all duties required of him by law as such warehouseman and shall faithfully account to said corporation for all moneys and other valuables passing through his hands as such warehouseman and a true account render of all business done by him in such capacity, then this obligation shall be null and void; otherwise to be in full force and effect.”

This action was instituted by appellee against appellant, Ode McMillan, and the sureties on his bond to recover certain items of loss aggregating $1,060.27, alleged to have been sustained by reason of default of McMillan as such warehouseman. The damage consisted of loss or wilful misappropriation by McMillan of a number of bales of cotton delivered to the warehouse by customers of appellee. The case was tried before a jury, and the verdict was in favor of appellee for the recovery of the full amount of the bond, $1,000.

The evidence is undisputed that the cotton in question was delivered to the warehouse in the fall of 1921, during the lifetime of the certificate of qualification held by McMillan, but that the loss occurred several months after the expiration of that certificate. It is undisputed that McMillan’s certificate was never renewed; however, he continued in the employment of appellee until the summer or fall of 1921. There is a conflict in the testimony as to whether or not the contract of employment was limited to the duration of McMillan’s certificate, or whether it was an indefinite employment. He was first employed at a salary of $75 per month, • and later the salary was raised to $100 a month, and still later, after the expiration of his certificate, the salary was reduced to $25 per month, and he was only to give a portion of his time to the operation of the business, being permitted to operate a garage in another portion of the town. McMillan testified that in each instance there was a new and separate contract made with him, whereas witness for appellee testified that the contract was never renewed, but that the salary under the original contract was raised or lowered at different times. There is also a conflict as to whether or not appellant was negligent in allowing the cotton to be lost, or whether he wilfully misappropriated it. These issues of fact were submitted to the jury under appropriate instructions, and the conflicts in the testimony must be treated as having been settled by the verdict.

The principal contention here by counsel for appellants is that the sureties are not liable for the reason that the bond was limited to the term of legal service of McMillan as warehouseman under his certificate, and that the loss did not occur until after the expiration of his certificate. Counsel for appellee contend, on the other hand, that the contract and bond covered an indefinite period of service, and that, even though the term has ended, appellant was liable for the loss of cotton which came into his hands during the lifetime of his certificate.

The statute is very plain that the corporation cannot operate its business unless “the officer or employee in active management of its warehouse” has a certificate from the Board of Supervisors of Warehouses. It plainly provides that the certificate shall only last for one year and must be renewed before the operation of the business can be continued. Another section of the statute makes a violation of any provision of the act a misdemeanor punishable by fine or imprisonment, or both. The statute does not require that the warehouseman shall give a bond, though it is required that the corporation, before obtaining its charter, shall give a surety bond. M will be observed that the bond given by McMillan specifies no particular term, but merely provides that the principal “shall faithfully perform all duties required of him by law as such warehouseman and shall faithfully account to said corporation for all moneys and other valuables passing through his hands as such warehouseman and a true account render of all business done by him in such capacity.” It being unlawful for the warehouse to do business without having a certified warehouseman in charge, it must he conclusively presumed that the bond was given to cover a valid term of service. Of course, in the absence of a statute expressly providing for a bond and its terms and conditions, the parties could have made a common-law bond which would bind the sureties for any term or period or length of time specified therein with reasonable certainty. But here we have a bond which contains no specific provision with reference to time, and therefore it must be conclusively presumed that the parties intended to contract for a valid period of service, which was merely during the lifetime of the certificate. Learned counsel for appellee invoke the doctrine that, ordinarily, sureties on a bond can make no defense which could not be made by their principal. 21 R. C. L. 991. This principle is sometimes applicable, but not so to a case where the question is as to the period covered by the terms of the bond. The surety is only bound by the conditions which apply while the bond is in effect.

We are of the opinion, therefore, that the contention of counsel for appellant is correct, and that this bond is limited in its operation to the period covered by McMillan’s certificate of qualification whereby he was permitted to legally discharge the duties of warehouseman. To extend the obligation of sureties beyond that period would be to make a contract which is not expressed in the face of the bond.

It is also contended by counsel for appellee tha-t, notwithstanding the fact that the bond was in effect only during the period of the lifetime of the certificate, the sureties are responsible for the value of the cotton that came into the hands of the warehouseman during the lifetime of the bond, even though the loss thereof occurred after the expiration of the bond. 21 R. C. L. 982. The sureties were liable only for default which occurred during the lifetime of the bond, and, if the property was on hand at the time of the expiration of the term of service of the certificate when the bond expired, then there was no default, even though the property was afterwards lost or wilfully misappropriated. In other words, if the property was on hand at the time of the expiration of the term of the bond, ready to be accounted for and delivered by the warehouseman, then the liability of the sureties could not be extended by permitting the principal in the bond to remain in possession. There was no accrued liability for losses during the lifetime of the bond, and liability could not arise from a loss which occurred afterwards. We are of the opinion, therefore, that the undisputed evidence shows that the sureties on the bond are not liable.

This does not, however, exonerate McMillan, the principal, from liability for his own negligence or misconduct while he was still in possession of the property of appellee. This is true, notwithstanding the fact that he was no longer authorized by law to do business for his employer. He was a bailee in charge of the property, and is liable for his own misconduct which caused the loss of the property. He could not lawfully carry on the business without a certificate, but this did not absolve him from his legal duty as bailee to care for the property and return it to his employer on demand.

All the issues concerning liability of McMillan himself were, we .think, properly submitted to the jury, and we find no error in the court’s charge. The evidence was sufficient to sustain the verdict as to the loss of the cotton on account of said appellant’s misconduct and also as to the amount which appellee was entitled to recover.

The judgment against appellant Ode McMillan is therefore affirmed, but the judgment against the other appellants as sureties on the bond is reversed, and the cause as to them is dismissd.


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    Arkansas Railroad Commission v. Graysonia, Nashville & Ashdown Railroad Company.
    Opinion delivered June 15, 1925.
    1. Public service commissions — appeal prom order — delay.— Under Acts 1921 p. 177, § 20, requiring- the secretary of the Railroad Commission, on an appeal from an order of the commission, forthwith to file a transcript of the proceedings with the clerk of the Pulaski Circuit Court, it was not an abuse of discretion to refuse to dismiss the appeal for delay of the secretary in filing the transcript not caused by the appellant.
    2. Public service commissions — delay in filing transcript— Evidence. — -Testimony held sufficient to support a finding of the circuit court that the delay of the secretary of the Railroad Commission in filing a transcript of proceedings before the commission was not caused by the negligence of the appellant, and that the delay was excusable.
    3. Railroads — operation of branch line. — A railroad company which did not own a certain branch line of railroad could not be compelled to operate it merely because its charter granted it the potential right to acquire and operate such line, and it had temporarily (operated it under an option to purchase.
    Appeal from Pulaski Circuit 'Court, Second Division; Richard M. Mann, Judge;
    (affirmed.

      H. W. Applegate, Attorney General, Brooks Hays, Assistant, J. G. Pinnix and Utley é Hammock, for appellant.

      J. G. Sain and Hamilton Moses, for appellee.
   McCulloch, C. J.

A domestic railroad corporation, known as the Memphis, Dallas & Gulf Railroad Company, constructed and operated -a line of railroad from Ashdown, Arkansas, to Hot Springs-through the towns of Nashville and Murfreesboro. The road was put into -operation about the year 1909, and was operated with more or less actual loss during its lifetime until the year 1920, when it was shut down and operations ceased. There was a foreclosure proceeding instituted by bondholders of the railroad company in the United States District Court for the Western District of Arkansas, and on August 15, 1922, the entire property of said railroad company was sold in sections by a commissioner of that court. J. K. Eiffel- as trustee for certain individuals became the purchaser of three sections of the railroad — one from Ashdown to Nashville, another from Nashville to Murfreesboro, and another from Murfreesboro to Shawmut. Those sales were confirmed by the court, and deed was executed to Eiffel, dated March 30, 1923, conveying the three sections .sold to him as such trustee.

In October, 1922, the appellee, Graysonia, Nashville &) Ashdown Eailroad Company, was incorporated under the laws of this State for the purpose, stated in the articles of incorporation, “of purchasing or -otherwise acquiring that part of the said railroad running from Ashdown to Shawmut, Arkansas, * * * and for the purpose of maintaining and operating said part of said railroad, and for the purpose -of purchasing or leasing any other parts of said property -that will be useful -or convenient for the operation of said railroad.” Some of the incorporators of this railroad are the same parties for whom Eiffel made the purchase as trustee, but not all of them are the same parties.

In December, 1923, Eiffel as trustee conveyed to appellee the section, or division, of said railroad from Ashdown to Nashville. The deed described the property as “that part of the railroad from Ashdown to Nashville” — meaning a section of the Memphis, Dallas & Gulf Eailroad. Eiffel as trustee also entered into contract with appellee granting an option to appellee to purchase, the section of the railroad from Nashville to Murfreesboro. Appellee at once began operation of the line between Ashdown and. Nashville, and also operated for a short time under its option contract the line between Nashville and Murfreesboro, but did not complete its purchase by exercising the option because of its inability to raise the money to repair the line, aud it abandoned the purchase and ceased operating the line.

The citizens of the town of Murfreesboro filed a petition with the Arkansas Eailroad Commission on January 3, 1924, praying for an order to compel appellee to repair the line of railroad between Nashville and Murfreesboro and furnish adequate freight and passenger service over the line. Notice was served on appellee and on the day set for hearing, the commission, after hearing the testimony of numerous witnesses, granted the prayer of the petition and entered an order in accordance therewith. This order was entered on January 29, 1924, and specified that it must be complied with by appellee within six months from the date thereof. On February 16, 1924, appellee filed with the- Railroad Commission its prayer for an appeal, which was granted, but the transcript was not filed in the office of the circuit clerk of Pulaski County until a day in November, 1924. The circuit court made- an order restraining the commission from proceeding with the enforcement of its order against appellee during the pendency of the proceedings in the circuit court. The Railroad Commission and the original petitioners appeared in circuit court and filed a motion to dismiss the appeal on the ground that it had not been filed within the time specified by statute. The court overruled the motion and on final hearing rendered a judgment setting aside the order of the Railroad Commission and dismissing the original petition. An appeal has been duly prosecuted to this court.

Section 20 of act No. 124 of the General Assembly of 1921 (General Acts 1921, p. 177) governing appeals from the Arkansas Railroad Commission reads as fol-1 óws:

“Within thirty days after the entry on the record cf the said Arkansas Railroad Commission cf any order made by it, any party aggrieved may file a written motion with any member of such commission, or with the secretary thereof, praying for appeal from such order to the circuit court of Pulaski County; and thereupon said appeal shall be automatically deemed as granted as a matter of right without any further order. The secretary of said commission shall then at once make full and complete transcript of all proceedings had before such commission in such matter, and of all evidence before it in such matter, including all files therein, and deposit same forthwith in the office of the clerk of said circuit court, which appeal shall be given preference over all other cases on the docket of said circuit court. Upon the filing of the aforesaid motion of said appeal and at any time thereafter the said circuit court or its circuit judge shall have the right to issue such temporary or preliminary orders as to it or him may -seem proper until final decree is rendered. The said circuit court shall thereupon review said order upon the record presented as aforesaid in the case and enter its finding and order thereon and cause to be certified forthwith to such commission the said order, therein directing that action be taken by said commission'in conformity therewith, unless an appeal from said order to the Supreme Court of this State shall be taken within the time hereinafter specified, and in case of such appeal to await further orders of said circuit court.”

It is contended by counsel for appellants that the court erred in overruling the motion to dismiss the appeal, on the ground that there was inexcusable delay in filing the transcript. There was oral testimony introduced before the court on the hearing of appellant’s motion to dismiss the appeal. It appears from the testimony that the secretary of the Railroad Commission made out the transcript on March 5, 1924, and forwarded the same to one of appellee’s attorneys at Nashville for the purpose of having the latter examine the transcript. The attorne}' received the transcript and held it for some time in conferring with the officers concerning the payment of court fees. The attorney testified that he was not aware of the fact that this was the original transcript which was to be filed by the secretary of the commission with the circuit clerk, blit thought it was a copy thereof, and that soon after he was apprised of the fact that it was the original, he returned it to the secretary to file. There is some conflict in the testimony on this point, but we treat it as being settled in favor of the findings of the trial court. It will be observed that the statute makes it the duty of the secretary of the Railroad Commission to file the transcript in the office of the clerk of the circuit court, and that the .jurisdiction of the circuit court attaches from the time of the filing of the motion for appeal with the commission. In the case of Van Buren Water Co. v. Van Buren, 152 Ark. 83, we decided that, where there was a delay beyond the limit fixed by the statute in filing transcripts on appeal from the Railroad Commission, there was no abuse of the court’s discretion in refusing to dismiss the appeal, if it was found that the delay was not caused by the fault of the appellant. We cannot say that the testimony was insufficient to support the finding of the circuit court in this case, that the delay was not caused by négligence of appellee’s counsel, or that the delay was excusable.

The main issue was heard by the trial court on testimony adduced before the Railroad Commission, a transcript of which was before the court. There were numerous witnesses introduced by the original petitioners, who testified' concerning the volume of business over the line in and out of Murfreesboro and the prospects for rapid future increase of the business. Appellee introduced, testimony from its records showing that that portion of the line had always been operated at a loss. There was no proof, however, that the operation of the whole line from Ashdown to Murfreesboro would result in a loss. The . proof was undisputed, however, that the railroad line between Nashville and Murfreesboro was badly out of repair, and that it would cost at least $40,000 to repair the roadbed, ties and bridges, so that trains could be safely operated. Appellee also proved by its president repeated efforts to secure funds with which to consummate the purchase of this line under the option contract with . Riffel and the inability to raise the money, and that on that account the option to purchase was never consummated, hence the abandonment of the line.-

Counsel for appellants invoke the doctrine that where a corporation takes a franchise and begins operation under it there can be no abandonment of a portion of the franchise merely because it proves unprofitable. In other words, counsel rely on the doctrine announced by this court and the Supreme Court of the United States that where a public utility, after having taken advantage of its charter to operate a line, cannot “pick and choose” • — retaining the profitable part and discarding and abandoning the unprofitable part. Fort Smith Light & Traction Co. v. Bourland, 160 Ark. 1, s. c. 267 U. S. 330. That doctrine is not applicable, however, to a case where- it is sought to compel a public utility to operate a line over which the charter rights have not been extended merely because there is a potential right granted in the charter. The proof in the case shows that appellee never acquired, either by purchase or lease, the line of railroad from Nashville to Murfreesboro. It acquired only an option to purchase, which was never exercised. The doctrine referred to above cannot be invoked to compel a public utility to acquire’ a line, but merely to compel it to continue operation of a line which it has once acquired and undertaken to operate. Appellee’s charter does not require it to operate the entire line of railroad specified therein. It merely grants a franchise to own and operate such portions of the old railroad as might be acquired “by purchase or otherwise.” If appellee decided not to purchase the additional section of the road, it could not be compelled to do .so. The question whether its failure to do so would constitute grounds for forfeiting the charter is not before us. The evidence in the case is not altogether clear as to why appellee commenced operation of this line of the railroad without finally exercising its option to purchase, but it is fairly infer-able that it was a mere temporary occupancy in anticipation of the ability to make the purchase, but without committing appellee to an exercise of the option. The option contract was not introduced in the record, but Mr. Conway, the president of appellee company, was permitted to testify without objection that the contract was a mere option to purchase, and that after diligent effort the company was unable to find the moneys with which to make the purchase under the option.

Our conclusion is that, under the evidence introduced in the ease to the effect that appellee did not own this line of railroad, either by purchase or lease, it would not be compelled to acquire ownership for the purpose of operating the road.

The judgment of the circuit court is therefore affirmed.


text:
    Thornton v. Laconia Levee District of Desha County.
    Opinion delivered June 15, 1925.
    Leveies — authority to complete levee. — Acts 1925, No. 356, empowering improvement districts created by special acts to carry out their contracts for construction work previously entered into under original or changed.plans, held to authorize the Laconia Levee District, created by special act (Acts 1891, p. 169) as amended by Acts 1917, p. 2119, to carry out its previous contract for completion of its levee to comply with the standard required by the Federal Government to secure federal aid, but not for assessment of benefits, which was limited by the special acts above mentioned.
    Appeal from Desha Chancery Court; E. 0. Hammock, Chancellor;
    'affirmed.

      H. H. Hays, for appellant.

      DeWitt Poe, for appellee.
   McCulloch, C. J.

Appellee is' a levee district created by special statute enacted in the year 1891, (Acts 1891, p. 61.9), and amended by another statute' in the year 1893 (Acts 1893, p. 253), to construct a levee along the west bank of the Mississippi River in Lesha County. Another statute was enacted at the legislative session of 1917, authorizing the district to borrow money, not exceeding $300,000, and issue negotiable bonds therefor. Acts 1917, p. 2119. A levee has been constructed and bonds issued in the aggregate amount mentioned in the last statute. There is a standard of levee construction along the Mississippi River, fixed by the Mississippi River Commission of the Federal Government, and the levee constructed by appellee district is below that standard — being only two-thirds of the standard in height and width as prescribed by the Mississippi River Commission.

Under the act of Congress appropriating funds for the improvement of the waterways of the country, the statute being known as the Flood Control Act (39 St. at L. 948), two-thirds of the cost of the levee construction may be paid out of the fund provided by the Federal Government, if the remaining one-third be 'contributed by the local levee district.

Appellee has arranged to complete the levee so' as to bring it up to the government standard and thus participate in the contributions from the Federal Government, and is about to proceed under a statute enacted by the General Assembly of 1925 which reads as follows : eral Assembly of tbe State of Arkansas of the year 1909, entitled, ‘An act to provide for tbe.creation of drainage districts in this State, ’ approved May 27, 1909; but said bonds shall not be sold for less than par without the unanimous vote of the board of directors or commissioners of such district; and such districts may make a reassessment of their benefits, which may be sufficient in amount to complete the improvement, which reassessment shall be made, advertised and equalized like their original assessment of benefits, and shall become final and incontestable after the lapse of the same time as the original assessment.”

“Section 1. "Where any local improvement district created by a special act has made an agreement or undertaking for any construction work to be done upon its original or any changed plans, such district is hereby empowered to carry out such agreement or undertaking; and to that end it may issue bonds bearing interest at a rate not exceeding six per cent, per annum and may secure the payment of said bonds by the pledge and mortgage of its assessment of benefits and tax levy, and the holders of such bonds shall have the rights of action described in § 25 of act No. 279 of the Acts of the Gen-

Appellant is a taxpayer of the district, and instituted this suit to enjoin the proceedings on the ground that the facts did not bring the situation with respect to the work contemplated by appellee district within the operation of the statute quoted above. It is also alleged that appellee district has not “made an agreement or undertaking for any construction work to be done upon its 'Original or any changed plans” within the meaning of the statute. Appellee answered alleging that there has been such an arrangement, agreement or undertaking within the meaning of the statute and introduced proof establishing that fact.

In the case of Farelly Lake Levee District v. Hudson, post p. 33, we construed the statute involved in the present ease, and held that it was a general statute and not a local statute. The Laconia Levee District of Desha County was, as before stated, created by special or local act, and therefore comes within the operation of the statute now under consideration. The facts of the case as shown bjr the evidence also bring it within the operation of that statute. There is one marked difference, however, between this case and the case of Farelly Lake Levee District v. Hudson. The statute creating tbe district involved in that case provided for the assessment of benefits by tbe board of commissioners, and the recent statute provides, as will be observed, that a district which had made an agreement or undertaking for the construction of new work may issue bonds, and also reassess the benefits in the same manner as the original assessment of benefits was made.'

Laconia Levee District of Desha County was created by special statute in the year 1891 (Acts 1891, p. 169), and § 14 of that statute authorized the annual collection of a levee tax on lands in the district not exceeding two per centum on the values as assessed for State and county purposes. There was an amendment to this statute in 1893 (Acts 1893, p. 253) in matters not important to the present discussion. The G-eneral Assembly of 1917 enacted another special statute (Acts 1917, vol. 2, p. 2119), authorizing Laconia Levee District to issue bonds in the sum of $300,000 to refund outstanding warrants and to make needed improvements, and that to secure the payment of said bonds there should be levied annually a levee tax on the lands ini the district not exceeding ten per centum of the value assessed for State and county purposes, and that the levy should be made continuous and obligatory until all of the bonds should be fully paid. The last-mentioned statute provided that, if the annual levee of taxes produces more than enough to pay the interest on the outstanding bonds and the principal of said bonds as matured within a year from the date of collection, the board of commissioners may use the remainder of the income of the district for its necessary expenses.

It is thus seen that neither the original statute creating the district nlor the subsequent statutes made any provision for actual assessment of the benefits by the commissioners, that those statutes constituted legislative determinations that benefits would inure to the lands in proportion to the expense of constructing and maintaining the improvement, and authority was granted to levy an annual tax not exceeding the specified maximum. It follows therefore that the provision in the recent statute under consideration authorizing the reassessment of benefits had no application to Laconia Levee District, but the fact that it has no such application, does not exclude Laconia Levee District from the operation of that portion of it which authorizes the construction of additional work, and the issuance of additional bonds, There being no other available provision for taxation to pay for additional improvement, the former statute- hereinbefore referred to expressly conferring -authority upon Laconia Levee District must be the limit of the taxing power. We are not called on to decide in this case whether the authority for levying taxes to cover the additional bonds should be governed by the original statute creating the district or by the act of 1917, supra, authorizing a higher rate -of taxation for the purposes specified therein. Appellant has not raised any question -about that feature of the case, and we refrain from further -discussion of it.

The attack of appellant upon the proceedings is unfounded, and the chancery court was -correct in dismissing the complaint for want of equity.'


author: Wood, J.

text:
    Chicago, Rock Island & Pacific Railway Company v. Daniel.
    Opinion delivered June 15, 1925.
    1. Master and servant — assumed risk — jury question. — In an action by a rip-sawyer for injuries caused by the negligence of a helper, where there w-as evidence that the pl-aintff did not know of the helper’s negligence -in time to avoid injury, the question whether plaintiff assumed the risk of the helper’s negligence was for the jury.
    2. Appeal and error — conclusiveness op verdict. — Where a verdict is challenged on -appeal, the only inquiry is whether there is any substantial evidence to sustain it, and the evidence must be given its strongest probative force in favor of the verdict.
    3 Trial — duty to declare law. — Where the testimony is undisputed, and all reasonable minds must draw the same conclusion of fact from it, it is the duty of the court to declare, as matter of law, the only conclusion or finding of fact to be reached from consideration thereof.-
    4. Master and servant — assumed risks. — Though >an experienced ripsaw operator -assumed the ordinary risks incident to the work, including the manner in which bis helper did his work, he had a right to assume that the helper would perform his duty until something occurred to advise him to the contrary, and where, up to the time of the accident, nothing occurred in the helper’s conduct to advise him that the helper was not discharging his duty properly, negligence of such helper was not a risk which he assumed.
    5. Master and servant1 — assumed risk. — The doctrine of assumed risk is predicated upon the knowledge of the employee of the risks to he encountered and his consent to be subjected thereto.
    6. Master and servant- — assumed risk. — Although the Employers’ Liability Act (Acts 1913 p. 734) does not deprive the employer of the defense of assumed risk, when the injury is the result of negligent acts of a fellow servant of which the injured employee had knowledge, neither does the injured employee assume the risk of injury from the negligence of a fellow servant of which he had no knowledge or appreciation.
    Appeal from Prairie Circuit Court, Soutliern District; George W. Clark, Judge;
    affirmed.

      Thos. 8. Buzbee, Geo. B. Pugh and II. T. Harrison, for appellant.

      Taylor Roberts and Tom W. Campbell, for appellee.
   Wood, J.

This is ail action by the appellee against the appellants for a personal injury. The appellee alleged in substance that he was in the employ of the appellant company in its mill department as a rip sawyer, and that, while engaged in the discharge of his duties, a board which he was attempting to rip was thrown against the appellee inflicting serious injuries upon him; that Raymond Kimbrel was appellee’s helper and also in the employ of the appellant company; that Kimbrel’s duty was to stand at the end of the table at the back of the rip saw and to hold down the board firmly so as to keep it from bucking up or kicking back, and to help pull said board along the table against the saw as appellee held it against the guide, thereby helping to rip same; that, while appellee was pushing the board in question against the saw to rip same, Kimbrel negligently failed to properly hold the board down upon the table, and thereby allowed the same to buck up and get back upon the saw so that the teeth of the saw caught upon the surface of the board and the board was thrown back with terrific force against the appellee.

The appellants denied all the material allegations of the complaint as to negligence and set up the affirmative defenses of contributory negligence and assumed risk on the part of the appellee. The facts are substantially as follows:

On the 12th of July, 1923, appellee was working for the appellant company in its shops at Biddle as a rip-sawyer. The rip saw is a circular saw and revolved in a slot through the center of the top of the table. The table was four feet wide and six and a half feet long. The appellee’s duties required him to stand at the end of the table in front of the saw and press the boards he was ripping against the saw, while it was revolving rapidly, in order to rip the boards. It was his duty to rip the boards as they were brought to him by another one of the company’s employees. At the time the appellee was injured he was ripping door stocks 381/2 inches long, 7/8 of an inch thick, and 12 inches wide. The boards were to be ripped down to 7y2 inches. There were four of these boards, and appellee was injured as he was ripping the fourth board. The saw was operated on a mandrel in the center of the table with a frame device for feeding above the saw. The feeder was sitting on an iron frame above the table and in front of the saw. It had three or four little sprockets or teeth wheels to push'tJio plank through and on to the back of the saw. Some 26 or 28 inches from this feeder was a steel roll five inches in diameter and 12 or 14 inches long at the back of the saw, the purpose of which was to hold down the back end of the board as it'passed through the saw. The board did not come under this roll until it had gone through the saw and was eight or ten inches beyond the back end of the saw. The saw could be operated without using the automatic feeder. Appellee was not using the automatic feeder at the time he was injured for the reason that he could not get good results by using it. Appellee’s foreman had told him that the automatic feeder would not carry the board through straight, and that he should not use the feeder because it was junldng too much stuff. By not using the feeder, and with the helper on the other side to hold the board down and pull it through while appellee was holding it against the guide, the boards could be ripped accurately.

Kimbrel, the appellee’s helper, could hold the boards down with his hands or with pull-off-sticks which were from 3y2 to 6 feet long. They were about two inches wide and one inch thick with an inch shoulder projecting at right angles from the edge at one end. They were designed so that the helper could hold down the board by placing his strength on it and at the same time assist in ripping the board by pulling the same against the saw. There were three or four of these pull-off sticks lying on the helper’s end of the table at the time the appellee was injured. It was not appellee’s duty to use the pull-off sticks, and he could not do so from Ms end of the table. The pull-off stick used by the helper at the time of the injury was 5% or 6 feet long. The helper had plenty of room. If he did his duty he could hold down the board with the pull-off stick by putting Ms strength on it. It was not necessary for the helper to take hold of the board either with Ms hands or the pull-off stick until the saw had ripped into the board more than half the width of the saw. At the time appellee was injured he was ripping what was called “a bull pine board” made of knotty pine, and it was a sap board and a little damp. At the time appellee was injured the board was about through the saw when it was kicked back. It pushed close up against the 'saw and began to buck, went to pinching, bucked up and over. It got on top of the saw and shot back. It was not possible for appellee at his end of the board to hold the same down and keep it from bucking up for the reason that the back end of the saw comes up and the front end goes down and whenever a board rides up on the saw it rides up on the back end — the end next to the helper. The negro helper did not hold his hands on the board. He never touched it. There were 7% inches between the saw and the guide. It was 2% feet, not over 2% feet, from the back of the saw to the end of the table where the helper was standing. He had 7% inches on the other side -of the saw where he could easily put his hands on the board without coming in contact with the saw. He could have done better by putting his hand on each side of the saw. He would have had to.reach over to have done so, or he could have used the pull-off stick. He did not do it. Appellee didn’t know whether the helper attempted to hold dowh the board or not, tout it was his duty to have done so. Appellee was not -looking at him at the time. It was his duty to have watched every board as appellee pushed it against the saw and to take care of his end of the board. It was not appellee’s duty to watch the helper. Appellee was depending on his helper to take care of his own end — to watch the board and take care of it as he had always done. Appellee assumed that his helper was doing his duty, but when appellee saw the board buck up and that the helper was not holding it down, he hollered to him to get the board and hold it down. The board bucked up on top of the saw and was thrown back with terrific force against the appellee striking him in the groin, knocking him down and breaking his hip. The appellee had worked at a rip saw for years and was an experienced operator. A model was before the trial court and was also used before this court in the oral argument, explaining the machine and’ the method of operation at the time appellee was injured.

The appellant prayed the court to instruct the jury to return a verdict in its favor, which prayer the court refused and the appellant duly excepted. The jury returned a verdict in favor of the appellee in the sum of $2,500. The court rendered judgment in accordance with the verdict, from which is this appeal.

The only contention of learned counsel for appellant in brief and oral argument is that, under the undisputed facts of this record, the appellant was entitled to an instructed verdict on the ground that the appellee had assumed risk of the injury which he received. But we are convinced that the trial court ruled correctly in refusing to instruct the jury as a matter of law that .the appellee had assumed the risk. It was an issue for the jury under the evidence to determine whether or not the appellee assumed the risk. In reaching this conclusion, we observe the well-settled rules, often announced, that, when a cause reaches this court and the verdict is challenged, the only inquiry is -whether there is any substantial evidence to sustain it, and the evidence must be given its strongest probative force in favor of the verdict; and that where the testimony is undisputed and all reasonable minds must draw the same conclusion of fact from it, then it is the duty of the court to declare as a matter of law the only conclusion or finding of fact to be reached from a consideration of the testimony. Fowler v. Hammett, 162 Ark. 307-317.

In sending to the jury the issue of assumption of risk the trial court instructed that “the servant assumes all the ordinary and usual risks and hazards that are incident to the service in which he is engaged; but he does not assume the risk of any injury, danger or peril that arises from, or is caused by, the negligence of a fellow-servant, unless he knows, or by the exercise of ordinary care could have known, of such negligence and appreciates the danger thereof in time to avoid the injury.” Counsel for appellant concede the correctness of the law as thus announced, but insist that as applied to the facts of this record appellant was entitled to an instructed verdict. It occurs to us that reasonable minds might have concluded from the testimony of the appellee that he did not know of the negligence of his helper in failing to hold down the board in time to have avoided the injury caused by such negligence. While the appellee does testify that he saw that his helper was not holding the board down and told him to get hold of it and hold it down, yet the appellee was asked the following question: “Did you know it at the very occurrence of the accident,” and answered “No, sir; I was interested in looking at the board; I was not looking at my helper.” The appellee testified that it was not his duty to watch the helper; that it was his duty to watch his own business. To rip the board accurately and get the same out exactly according to specifications given it was necessary for him to give attention to his end of the board and hold the same against the guide, and it was likewise necessary that the helper give attention to his end of the board by holding same down either with the pull sticks or by pressing down upon it and pulling it through with his hands. This was the helper’s duty, and up to the time of the accident he had performed it, and there was nothing to cause the appellee to apprehend that the helper would not still do so until the board began to buck, and then it was too late for the appellee to avoid the injury.

At least, we believe the testimony would fully justify reasonable minds in coming to such conclusion. The appellee was an experienced rip-sawyer and unquestionably assumed all the ordinary risks incident to his work, including the manner in which he observed that the work was being done by his helper. Graham v. Thrall, 95 Ark. 560. But the appellee had a right to assume that the helper would perform his duty until something occurred to advise him to the contrary, and up to the time of the accident nothing had occurred in the conduct of the appellee’s helper to indicate that he was not discharging, and would not discharge, the duty incumbent upon him to hold down his end of the board. On the contrary, the undisputed testimony shows that the helper had been faithfully performing his duty with reference to the several boards that had been previously ripped that day. So it cannot be said that the negligence of appellee’s helper and fellow-servant was an obvious risk of which the appellee, in the exercise of ordinary care in the performance of his own duties, was bound to observe.

In St. Louis, etc. Ry. Co. v. Martin, 165 Ark. 30, we said: “While an employee assumes such extraordinary risks caused by the master’s or fellow-servant’s negligence as are obvious and fully known and appreciated by him, he does not assume extraordinary risks incident to his employment merely because he was familiar with the dangers and character of the work.” The doctrine of assumption of risk is predicated upon the knowledge, actual or constructive, of the employee of the risks to be encountered and his consent to be subjected thereto. Carter v. K. C. S. Ry. Co., 155 S. W. 638.

In E. L. Bruce Co. v. Yax, 135 Ark. 480, speaking of the Employers’ Liability Act (Act 175 of the Acts of 1913, p. 734) at page 492, we said: “The statute was not intended to and does not deprive the employer of the right to set up the defense of assumption of risk by the injured employee where such injury was the result of the negligent acts of a fellow servant of. which the injured employee had knowledge and the dangers of which he appreciated.” But the converse is likewise true, and the injured employee does not assume the risk of injury from the negligence of a fellow-servant of which he did not have knowledge and did not appreciate. As we have already stated, the jury might have well concluded that the appellee did not have knowledge of the negligence of his helper and appreciate the danger of such negligence in time to avoid the injury. There was nothing in the testimony to warrant the inference, and justify the court in declaring as a matter of law, that appellee should have anticipated that his helper might be negligent in the performance of his duties, and that the appellee should have exercised ordinary care to discover and protect himself against such negligence. See St. Louis, etc., Ry. Co. v. Martin, supra; St. Louis, etc., Ry. Co. v. Blevins, 160 Ark. 363.

There is no reversible error in the record. Therefore the judgment is affirmed.


text:
    Lentz v. State.
    Opinion delivered June 15, 1925.
    1. Criminal law — character evidence. — The prosecution may not resort to proof -of accused’s bad character as a circumstance from which to infer guilt, since, if such testimony should be admitted, the accused might be overwhelmed by prejudice, instead of being tried upon evidence affirmatively showing his guilt of the specific offense with which he is charged.
    2. Criminal law — evidence as to reputation. — The general good character of the defendant in a criminal case is always admissible with regard to the particular trait involved in the charge against him, but the State is not privileged to offer character evidence except by way of rebuttal.
    Appeal from Van Burén Circuit Court; J. M. SMnn, Judge;
    reversed.

      J. F. Koone 'and J. F. Henley, for appellant.
    • H. W. Applegate, Attorney General, ,and John L. Carter, Assistant, for appellee.
   Wood, J.

This is an appeal from a judgment sentencing the appellant to two years’ imprisonment in the State penitentiary on a verdict finding him guilty of voluntary manslaughter in the killing of Herbert Rhoades. The testimony of the witnesses for the State tended to support the verdict. The testimony of witnesses for the defendant tended to prove that Rhoades was the aggressor and that appellant cut and killed Rhoades in self-defense.

Over the objection of appellant, several witnesses for the State were permitted to testify that they were acquainted with the general reputation of the appellant in the community where he resided; that his reputation for being a quarrelsome, troublesome, fractious and overbearing man was bad. The appellant had not then called, and did not thereafter call, any witnesses to testify that his reputation was not that of a quarrelsome, troublesome, fractious and over-bearing man.

The appellant contends that the ruling of the court in admitting the testimony of these witnesses is error for which the judgment should be reversed and the cause remanded for new trial. The appellant is correct in his contention. It is the well-settled doctrine of this court that the prosecution cannot resort to the accused’s bad character as a circumstance from which to infer guilt; the reason being that, “if such testimony should be admitted, the defendant might be overwhelmed by prejudice, instead of being tried upon evidence affirmatively showing his guilt of the specific offense with which he is charged.'” Ware v. State, 91 Ark. 555; Younger v. State, 100 Ark. 320; Suffield v. State, 120 Ark. 458. This doctrine is not in conflict with the rule also announced long ago in this State, and never since departed from, that “a person upon trial for a crime charged against him has a right to offer in his defense testimony of his good character. This is, and ought to be the general rule. One limitation, however, is laid down by the authorities, namely,' that in such case the character sought to be proved must not be general, but .such as would make it unlikely that the defendant would be guilty of the .particular crime with which he is charged.” In other words, the general good character of the defendant is always admissible on' behalf of the defendant with regard to the particular trait involved in the nature of the charge where the defendant desires to make such proof. Key v. State, 28 Ark. 155-164; Edmunds v. State, 34 Ark. 720-742; Whitley v. State, 114 Ark. 243-251; Seaton v. State, 151 Ark. 240-244.

To be sure, if the defendant has adduced evidence of his general reputation as to his good character concerning a particular trait or disposition, then the State, by way of rebuttal, may offer evidence as to the general reputation of the defendant’s bad character concerning the particular trait or disposition involved in the charge against the accused. But the State is not privileged to offer such evidence except by way of rebuttal. See Ware v. State, supra; Younger v. State, supra; Suffield v. State, supra; Uinderhill on Evidence, § 137; 2 Rice on Evidence (Civil) § 508.

For the error indicated the judgment is reversed, and the cause will be remanded for a new trial.


author: Hart, J.

text:
    Farelly Lake Levee District v. Hudson.
    Opinion delivered June 15, 1925.
    1. Statutes — general act. — Acts 1925, No 356, empowering improvement districts created iby special acts to carry out their contracts for construction work to be done under original or changed plans, is a general statute.
    2. Statutes — general and special acts. — The question whether an act is general or special1 must be determined from the act itself, and from facts of which, the court will take judicial notice.
    3. Evidence — judicial notice. — The courts will take judicial notice that many special acts have been passed establishing levee, drainage and highway districts.
    4. Statutes — general statute defined. — A general statute must relate to persons and things as a class and operate throughout the State on whole subject or class, and not be restricted to any particular locality within the State; the classification being so general as to bring within its limits all those in substantially the same situation class.
    5. Statutes — repeal of repugnant act.- — Where a subsequent general act is repugnant to a prior special act, the general act, without any repealing clause, operates as a repeal of the special act to the extent of the repugnancy; and where two such acts are -passed at different times, and it is clear that the later act was intended as a revision of the prior acts, it repeals it to the extent to- which its provisions are revised or substituted.

      6. Levees — reipeal of special act. — Acts 1925, No. 356, empowering improvement districts, created by special acts, to carry out their contracts for construction work to be done under original or changed plans, by reason of repugnancy, repeals Acts 1917, No. 170 § 6 as amended by special Acts 1919, No. 115, section 6, providing that no land in Farelly Lake Levee District will be bene•fitted more than $20 per acre by the proposed improvement, leaving only the constitutional limitation that no assessment of benefits shall substantially exceed special benefits to property.
    - Appeal from Jefferson Chancery Court; H. R. Lucas, Chancellor;
    reversed.
    STATEMENT OE FACTS.
    W. C. Hudson brought this suit in equity against the Farelly Lake Levee District to enjoin it from filing with the chancery clerk of Jefferson County the assessment which the assessors of said levee district had prepared increasing the assessments of benefits accruing to the lands within the district to $25 per acre.
    According to the allegations of the complaint, Farelly Lake Levee District is a levee district created by act No. 3 of the General Assembly of 1913, and amendatory act No. 170 passed by the Legislature of 1917, and amendatory act No. 115 passed by the Legislature of 1919. Farelly Lake Levee District was created by the act and the amendments thereto for the purpose of reclaiming the lands within the district from overflow and surface water, and for the further purpose of constructing such drainage ditches as the board of commissioners might deem practical. The lands in the district are located in Jefferson and Arkansas counties. The plaintiff, "W. C. Hudson, is the owner of land within the boundaries of said levee district in Jefferson County.
    Section 6 of act 170 passed by the Legislature of 1917, to amend the 'Original act passed by the Legislature of 1913, creating- and establishing the Farelly Lake Levee District, provides that it is ascertained and declared that no land in the district will be benefited more than $20 per acre by reason of the proposed improvement. Acts of 1917, vol. 1, p. 905.

      ■Section 6 >of ant 115 passed by tbe Legislature of 1919, amends § 6 of act 170 of the Acts of 1917. This section also provides that it is ascertained and declared that no land in the district will be benefited more than $20 per acre by reason of the proposed improvement. Special Acts of 1919, p. 192.
    The complaint alleges that the commissioners of the levee district, acting as assessors of benefits, have made a re-assessment of benefits to each tract of land lying within the district that will increase the assessments thereof to the sum of $25 per acre. The complaint further alleges that this increase is in violation of the provisions of the act under which the levee district was created and the amendatory acts thereto.
    The Farrelly Lake Levee District filed an answer in which it admitted that a re-assessment of the lands in the district had been made whereby the benefits accruing to each tract of land in the district was increased to the sum of $25 an acre; but deny that said increased assessment is illegal and void. The answer avers that said assessment was increased under authority of act No. 356 of the Legislature of 1925 entitled, “An act for the relief of local improvement districts created by special acts,” approved April 1, 19’25.
    The answer further states that the levee district previous to the passage of said act had made an agreement for construction work under its original plans; that the money realized from a previous bond issue was not sufficient with which to complete the work contracted for, and that, in order to raise sufficient funds, it was necessary to make a re-assessment.
    The plaintiff filed a demurrer to the answer of the defendant which was sustained by the court. The defendant refused to plead further, and it was decreed by the court that the defendant Farelly Lake Levee District and the commissioners and assessors of said district be permanently enjoined and restrained from filing with the chancery clerk of Jefferson County, Arkansas, the re-assessment of benefits made by them.
    The defendant has duly prosecuted an appeal to this court.

      Rose, Hemingway, Cantfell & Loughborough, for appellant.

      Wooldridge & Wooldridge, for appellee.
   Hart, J.

(after stating the facts). Farelly Lake Levee District was created by the Legislature of 1913, and the original act was amended by the Legislature of 1917 and the Legislature of 1919. By § 6 of both amendatory acts it is expressly provided that it is ascertained and declared that no land in the district will be benefited more than $20 per acre by reason of the proposed improvement. Acts of 1917, vol. 1, p. 905 and Special Acts of 1919 p. 192.

The answer admits that a re-assessment increasing the benefits of $25 an acre was made; but it avers that the assessment was increased under the authority of act 356 of the General Assembly of the year 1925, entitled, “An act for the relief of local improvement districts created by special acts.”

Section 1 of the-act reads as follows: “Section 1. Where any local improvement district created by a special act has made.an agreement or undertaking for any construction work to be done upon its original or any changed plans, such district is hereby empowered to carry out such agreement or undertaking; and to that end it may issue bonds bearing interest at a rate not exceeding six per cent, per annum and may secure the payment of said bonds by the pledge and mortgage of its assessment of benefits and tax levy, and the holders of such bonds shall have the rights of action described in § 25 of act No. 279 of the Acts of the General Assembly of the State of Arkansas cf the year 1909, entitled, £An act to provide for the creation of drainage districts in this State’, approved May 27, 1909; but said bonds shall not be sold for less than par without the unanimous vote of the board of directors or commissioners of such district; and such districts may make, a re-assessment of their benefits, which may be sufficient in amount to complete the improvement, which re-assessment shall be made, advertised and equalized like their original assessment of benefits, and shall become final and incontestable after the lapse of the same time as the original assessment.”

At the outset it may be stated that the act passed by the Legislature of 1925 is a general act. The question of whether an act is a general or a special one must be determined from the act itself and from facts of which the court will take judicial notice. The courts will take judicial notice that many special acts have been heretofore passed by the Legislature establishing levee, drainage and highway districts. A general law must relate to persons and things as a class and must operate throughout the State upon the whole subject or whole class and must not be restricted to any particular locality within the State. The classification must be so general as to bring within its limits all those who are in substantially the same situation or class. McLaughlin v. Ford, 168 Ark. 1108.

It is well settled in this State that, where a subsequent general act is repugnant to a prior special act or acts, the general act, without any repealing clause, operates as a repeal ■ of the special act or acts to the extent of the repugnancy and where two such acts are passed at different times and it is clearly evident that the later act was intended as a revision of the prior one, it will repeal the first act to the extent in which its provisions are revised or substituted. Massey v. State use Prairie County, 168 Ark. 174.

Tested by this rule, it is manifest that § 1 of act 356 of the Acts of 1925 above set forth, repeals the provision in § 6 of the amendatory acts above referred to ydierein, it is declared by the Legislature that no laud in the Farelly Lake Levee District will be benefited more than $20 per acre by reason of the proposed improvement. The act creating the district, and the amendatory acts passed by the Legislatures of 1917 and 1919 are all special acts.

The act of 1925 above set forth expressly provides that where any local improvement district created by a special act has made an agreement for any construction work, such district is impowered to carry out such agreement and to that end may issue bonds. The act further provides that such district may make a re-assessment of benefits which may be sufficient in amount to complete the improvement. It also provides that the re-assessment shall be made and equalized like the original assessment of benefits and shall become final and incontestable after the same lapse of time as the original assessment. Thus it will be seen that the act by its express terms provides that it is a revision and substitution for the assessment provisions in all local improvement districts created by special acts where an agreement or undertaking for any construction work has been made.

The answer by proper averments shows that prior to the passage of said act of 1925 the Farelly Lake Levee District had made an agreement for construction work to be done under its original plans. It is plain then that the special act creating the district, and the acts of 1917 and 1919 amendatory thereof, come within the express provisions of the act of 1925. In other words, the limitation of the amendatory acts that no land in the district will be benefited more than $20 per acre is repugnant to and inconsistent with the provisions of the act of 1925. Therefore, the limitation in this respect is taken away by the subsequent general act, being- a later act and repugnant to the provisions of the former one. In other words, the later general act contains no restrictions or limitations as to amount upon the assessments of benefits except the guaranty of the Constitution that no assessment of benefits for local improvements shall be made on real property in substantial excess of the special benefits to the property. Burr v. Beaver Dam Drain age Dist., 145 Ark. 51 and Earle Road Imp. Dist. No, 6 v. Johnson, 145 Ark. 438.

Counsel for the plaintiff seeks to uphold the decree upon the authority of Mays v. Phillips County, 168 Ark. 829. But we do not think that case has any application to the facts of the present one. The general statute in that case did not refer to the prior special act, and there is nothing in its provisions showing that it was intended as a revision or substitution for the first act. Hence a majority of the court was of the opinion that the prior special act was not repealed by implication by the subsequent general act. In short, a majority of the court thought that the Legislature had no intention of repealing the special act by the subsequent general act, and that there was no language whatever used from which such repeal could be implied. In the act under consideration, the Legislature expressly states that it is a revision of special acts where an agreement for construction work has been made upon the original plans, and that a re-assessment of benefits may be made to an extent sufficient to complete the improvement.

The result of our views is that the decree of the chancery court will be reversed, and the cause will be remanded with directions to dismiss the complaint of the plaintiff for want of equity.


author: Habt, J.

text:
    Wells v. Street Improvement District No. 31 of North Little Rock.
    Opinion delivered June 15, 1925.
    Municipal corporation — district to grade and pave streets.— Where the first petition for grading and paving certain streets expressly stated that the district was not organized for curbing, guttering or storm sewering, and the second petition of a majority of landowners and the ordinance creating the district provided for grading and paving the streets without restriction, held that the district was not authorized to construct curbs, gutters and storm sewers, especially in view of the fact that on the same day an ordinance was passed creating an improvement district for the purpose of constructing curbs, gutters and storm sewers in the same streets.
    Appeal from Pulaski'Chancery Court; JohnE. Mar-ti neau, Chancellor;
    affirmed.
    STATEMENT OF FACTS.
    Thad F. Wells brought this suit in equity against Street Improvement District No. 31 of North Little Bock and the commissioners thereof for the purpose of having the organization of the district declared void and restraining the commissioners from issuing bonds for the cost of constructing the improvement.
    According to the allegations of the complaint, the plaintiff is the owner of real property located within the boundaries of said improvement district. The first petition and the ordinance establishing the district declares that it is organized for the purpose of “grading and paving (but not curbing, guttering or storm sewering) the streets within the district.”
    It was further alleged that the ordinance establishing the district after the second petition containing the majority in value of the property owners in the district was filed, stated that the commissioners are given the power to grade and pave the streets in said district, and did not contain any restriction or limitation as to the power of the commissioners as to curbing, guttering, and constructing storm sewers.
    The answer admits that the purpose of the district as expressed in the first petition and ordinance is for grading and paving (but not curbing, guttering, or storm sewering) the streets, and that the purpose that is expressed in the second petition is for grading and paving said streets. The defendants deny that the effect of the second petition is to give the commissioners power, not only to grade and pave the streets, but also to construct curbs, gutters, and storm sewers. They aver that the grading and paving of said streets can be done without curbing, guttering, and storm sewering the same; that another district was formed at the same time, having precisely the same boundaries for the distinct purpose of constructing curbs, gutters and storm sewers in the streets of the proposed district. They further state that the plans and specifications and estimated cost filed with the city council provide only for grading and paving the streets in the district.
    The plaintiff filed a demurrer to the answer of the defendants. The chancery court overruled the demurrer to the answer. The plaintiff refused tó plead further and elected to stand upon his demurrer to the answer. It was therefore decreed that the plaintiff’s cause of action be dismissed for want of equity, and the plaintiff has duly prosecuted an appeal to this court.

      Carmichael £ Hendricks, for appellant.

      Tom F. Digby, for appellee.
   Habt, J.

(after stating the facts). It is the contention of counsel for the plaintiff that, while under the first petition the powers of the commissioners are limited to grading and paving the streets only, still the effect of the second petition is to give them the power, not only to grade and pave the streets, but to construct curbs, gutters and storm sewers.

This court has recognized that the property owners may limit the powers of the commissioners by specifying with particularity the kind of materials to be used and the cost of the improvement. McDonnell v. Imp. Dist. No. 145, Little Rock, 97 Ark. 334. This court has also held that two distinct improvement districts having the same boundaries may be organized, the one for the purpose of grading and paving the streets in it, and the other for the purpose of curbing, guttering and storm sewering the same streets. Bottrell v. Hollipeter 135 Ark. 315, and Johnson v. Hamlen, 148 Ark. 634. In these cases the court held that, while curbing and guttering and constructing storm sewers may be incident to the caving and grading of streets, and therefore anprouriatelv included in a single improvement district organized for the purpose of paving and gradina' streets, vet they are not convertible terms, and do not necessarily include each other.

It is true that the first petition and the ordinance provided for paving and grading the streets and contained a restriction in express terms that the district was not organized for curbing, guttering, and storm sewering the same streets, and that the second petition and ordinance did not contain any restriction or limitation against curbing, guttering, and storm sewering, yet both ordinances were passed pursuant to the same statute to effectuate the same purpose and must necessarily be read and construed in the light of each other and with reference to the purpose sought to be accomplished. When this is done, We do not think that there is any variance between the purposes to be accomplished by the two ordinances.

While the express language of the first petition and ordinance limits the improvement to paving and grading by expressly stating that curbing, guttering or storm sewering could not be done, we think the use of the words, paving and grading as used in the second petition and ordinance necessarily limits and restricts the power of the commissioners to paving and grading the streets. When construed in the light of the first petition and ordinance, by necessary implication the language used in the second ordinance restricts the power of the commissioners to paving and grading the streets merely. This is especially true when we consider that the city council on the same day passed an ordinance creating an improvement district out of the same territory for the purpose of constructing curbs, gutters and storm sewers in the same streets.

It follows that the decree of the chancery court was correct and will be affirmed.


author: Hart, J.,

text:
    Road Improvement District No. 1 of Howard County v. Bank of Commerce & Trust Company.
    Opinion delivered June 15, 1925.
    1. Bills and notes — negotiability.—The fact that a note provides that it may be payable on or before a certain day does not destroy its negotiability.
    2. Bills and notes — negotiability.—Negotiability of a note - issued by the commissioners of a road improvement district in payment of an. engineer’s services is not destroyed by a recital that it is payable from first funds not required to meet payments on the outstanding bond issue, whether derived from taxation or sale of further bonds; such language not being intended to give the holders of bonds a lien which the law did not give them but merely recognizing a prior lien in favor of the bondholders.
    3. Appeal and error — conclusiveness op finding of facts. — A finding of facts by the circuit court is as conclusive on appeal as the verdict of a jury.
    Appeal from Pulaski Circuit Court, Third Division; Marvin Harris, Judge;
    affirmed.
    statement of facts.
    This is a suit by the Bank -of Commerce '& Trust Company, of Memphis, Tennessee, against Road Improvement District No. 1 of Howard County, Arkansas, and I, R. Packard to recover the-sum of $3,043.73 together with the accrued interest. The note sued on is as follows:
    “Commissioners’ Note, Road Improvement District, No.' 1, Howard Countjq Arkansas.
    ‘ ‘ On or before the first day of March, 1920, the undersigned Road Improvement District No. 1 of Howard County, in the State of Arkansas, promises to pay to I. R. Packard or order the sum of three thousand and forty-three and 73/100 dollars paid at the rate of six per cent, per annum.
    “This note is given for money advanced for necessary engineering work of the district, and is payable out of the first funds that shall come into the hands of the district not required to meet payments due on its outstanding bond issue, whether said funds shall be derived from taxation or from the sale of further bonds of the district; and this district hereby covenants that in the execution of this note it has in all respects complied with the laws of the State of Arkansas, particularly "with the requirements of act No. 338 of the Acts of the General Assembly of the State of Arkansas of the year 1915; that this district has been duly organized under said act, and that all things prerequisite to the validity of this note have happened and been performed as required by law.
    “In witness whereof, said Road Improvement District No. 1 of Howard County, Arkansas, has executed this instrument by the hands of its commissioners, this 30th day of January, 1920, and has attested it with its corporate seal.
    “Road Improvement District No. 1
    Howard County, Arkansas.
    “By A. M. Smallwood, Chairman,
    (Corporate Seal). “A. A. Price, Secretary.
    “Attest: A. A. Price, Secretary.”
    I. R. Packard for value received transferred the note to the plaintiff on February 18, 1920. The present suit was instituted on October 11,1924. The proof shows that a note was executed pursuant to a resolution of the board of commissioners of the road improvement district on the 30th day of January, 1920, to pay I. R. Packard for engineering services in the construction of the improved road. The road improvement district was duly organized under the general laws of the State.
    According to the evidence for the defendant, the resolution above referred to provided for the execution of a note bearing 8 per cent, interest per annum. After its execution the note was altered so as to bear 6 per cent, per annum.
    The evidence for the plaintiff tended to show that the resolution was amended so as to call for the execution of a note bearing 6 per cent, interest and that the note was executed pursuant to the amended resolution.
    The court found that the note as originally executed bore 6 per cent, interest and was not altered after its execution. The court further found that the note sued on was transferred to the plaintiff for value before maturity, and judgment was rendered in favor of the plaintiff against the district for the amount of the note with the accrued interest. The case is here on appeal.

      Abe Collins, for appellant.

      Horace Chamberlin, for appellee.
   Hart, J.,

(after stating the facts). The fact that the note provides that it may be payable on or before a certain day does not destroy its negotiability. McCormick v. Daggett, 162 Ark. 16.

It is contended, however, that by the language of the ■ note itself it is payable out of a particular fund’ which may prove inadequate to meet the note in full and that this destroys its negotiability within the rule laid down in Rector v. Strauss, 134 Ark. 374. We do not think that the facts in the case at bar are similar to those in the case just cited. In that case the note- recited that it was made with the express understanding that it was to be paid out of the first money received by a real estate company from the sale of certain lots.

In the case before us the particular fund is referred to in the note, not for the purpose of charging payment exclusively thereupon; but merely to indicate the source from which the money is to be received. The note sued on was issued by the commissioners of a road improvement district organized under the general laws of the State. The commissioners are given the power under the statute to cause the improved road to be constructed and express power is also given the commissioners to borrow money and issue bonds to pay the cost of construction. The note recites that it is given for money advanced for necessary engineering work and is payable out of the first funds that shall come into the hands of the district not required to meet payments on its outstanding bond issue, whether said funds shall be derived from taxation or from the sale of further bonds of the district.

It is evident from the language used that the commissioners had exercised the power to borrow money given them by § 5411 of Crawford & Moses’ Digest, anil the language used in the note is but a recognition that the commissioners had already exercised this power and that, pursuant to its exercise, bonds of the district were outstanding which were a prior lien on the lands in the district. In other words, the language used indicates that there has been a prior issue of bonds by the commissioners under the statute which created a prior lien upon the revenues of the district. The language of the note sued on was a recital of the law as it existed and was not intended to give the holders of bonds a lien which the law did not give them; but merely recognized a prior lien in favor of the bondholders which they had obtained under the statute. Therefore, this reference to the source of payment in no way affects the negotiable character of the note sued on. The note sued on was an evidence of an indebtedness of the district which it had the authority to make under the section of the statute above referred to. The note sued on was executed in payment of engineering services, and as-such was binding upon the district. Arkansas Foundry Co. v. Stanley, 150 Ark. 127.

The case last cited shows that the bonds of the district are but evidences of indebtedness of the district; but the recitation in the note above referred to also shows that a bond issue was outstanding at the time the note sued on was executed. Hence it was a distinct issue of bonds made by the commissioners under the authority of the statute before the execution of the note sued on was contemplated. Therefore, the language of the note was merely a recognition of this fact and was not for the purpose of directing the payment of the note out of a particular fund where the maker of the note had several funds out of which the note might have been paid. Hence its negotiability was not destroyed.

Again it is insisted that no recovery can be had because the note was altered. In this respect it is contended that the resolution authorizing the execution of the note, provided for 8 per cent, interest,- and that the note was first executed bearing that rate of interest and was subsequently changed to bear 6 per cent, interest because § 5411 does not allow the commissioners to borrow money at a rate of interest exceeding six per cent.

There was testimony in the record tending to show that the note had not been altered in this respect. The case was tried before the circuit court sitting as a jury, and it is well settled in this State that the finding of facts made by a circuit court is as conclusive upon appeal as the verdict of a jury. Tucker Lake Reclamation Dist. v. Winfrey, 160 Ark. 205.

It follows that the judgment must be affirmed.