author: Hart, J.

text:
    Royal v. White Oil Corporation.
    Opinion delivered October 22, 1923.
    1. Master and servant — safe tools — common tools. — The duty of a master to exercise ordinary care to provide reasonably safe tools and appliances for his servant has no application where the tools are common tools in ordinary use, and the servant possesses ordinary intelligence and knowledge of their use and construction.
    2. Master and servant — common tools — liability op master. — . Where an experienced pumper employed to keep certain tanks filled with water was injured by falling from a plank placed . . without fastening against a tank with one end stuck in the ground, its condition being visible to any one of ordinary intelligence, and it having been used by him in that condition for 38 days, held that the plank was a common tool, and that the court properly directed a verdict for the defendant.
    Appeal from Miller Circuit Court; George B. Haynie, Judge;
    affirmed.

      J. M. Garter and B. E. Garter, for appellant.

      Mahoney & Yocum, and Jas. D. Head, for appellee.
   Hart, J.

This is an action by William L. Boyal against the White Oil Corporation to recover damages for personal injuries received in consequence of the slipping of a plank on which the plaintiff was standing while engaged in looking in a water tank to see if it was full of water.

. ■ William L. Royal was employed by the White Oil Corporation to1 keep certain tanks full of water, and was hurt while in the discharge of his duties. He was employed by the defendant’s superintendent on the first day of June, 1922, as- a pumper, and was directed to take -charge of one shift of the pumping which lasted from midnight until noon the next day. Royal had had six years’ experience in working in oil fields:, and had worked as a pumper for three of them. One of the employees was directed- to show Royal the various wells, and this employee showed him the different tanks which he was expected to pump full of water. One of the tanks had a board 2x6 -and between 4 and 7 feet long leaning against the tank. One end of this board or plank was stuck into the ground, and the other end leaned against the side of the tank. It was placed against the side of the tank to enable the pumper to climb upon it and see if the tank was full of water. Royal was injured by climbing on this board to see if the tank was full of water. The board turned with him after he got up on it, and this threw him to the ground and injured him. Royal had been at work continuously as a pumper for 38 consecutive days at the time he was hurt. He had not noticed that the board in question was not fastened to the side of the tank, and thought it was nailed to it.

The court directed a verdict for the defendant, and the plaintiff has appealed to this court.

The duty of the master to exercise ordinary care to provide reasonably safe tools and appliances for his servants has no application where the tools are common tools in ordinary use and the servant possesses ordinary intelligence and knowledge of their use and construction. Railway Company v. Kelton, 55 Ark. 483; Marcum v. Three States Lbr. Co., 88 Ark. 28, and Fordyce Lumber Co. v. Lynn, 108 Ark. 377.

In the application of the rule to the facts of the present case, we think the court was right in holding that the defendant was not liable for the injuries received by the plaintiff. The plaintiff had worked' in the oil fields for six years, and for three of them as a pumper. He admits that he knew that the hoard or plank was placed against the side of the tank to enable him to climb up on it to see when the tank was full of water. He also admits that he noticed that one end of the plank had been stuck into the ground, but said that he did not know that the other end was not fastened, but thought that it had been nailed or fastened to the tank. He had worked for 38 days before he was injured, and his experience was such that he will be considered, as a matter of law, to have noticed that the upper end of the plank was not fastened to the tank. He had used it for 38 days, and its condition was visible and patent to any one of ordinary intelligence who might use it.

The defendant cannot be said to have been guilty of negligence, under the circumstances,, and the. court was right in directing a verdict for it.

It follows that the judgment will be affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Miller v. State.
    Opinion delivered October 22, 1923.
    1. Intoxicating liquors — being interested in sale — evidence.— Evidence held sufficient to sustain a conviction of being interested in the sale of intoxicating liquors in violation of Crawford & Moses’ Dig., § 6160.
    2. Criminal law — evidence op other 'offense. — While it is the general rule that, upon the trial of one offense evidence of another crime, although .of the same nature, cannot be admitted to show the guilt of the accused, such evidence is admissible when necessary to prove seienter, or to establish identity, or to complete a chain of circumstantial evidence of guilt in respect to the crime charged.
    3. Criminal law — evidence of other offense. — Where, in a prosecution for being interested in the sale of whiskey, it was a question under the evidence whether defendant was interested as seller or was merely acting as purchasing agent for the buyer,, it was- admissible to show by the sheriff that, when he arrested

      defendant, he found whiskey in the room and elsewhere on the premises.
    Criminal law — instruction—specific objection. — Where, with reference to evidence tending to establish an alibi, the court instructed the jury to “scrutinize the testimony of witnesses to see if any of them may not he mistaken as to the dates and times when they saw defendant,” such language was not so inherently defective as to make it erroneous and prejudicial to the rights of defendant, in the absence of a specific objection.
    Indictment and information — charging several acts as one offense. — Where a statute makes indictable two or more distinct acts connected with the same transaction, each of which may be considered as representing a phase of the same transaction, they may be charged conjunctively in a single count as constituting but a- single offense.
    Intoxicating liquors — indictment.—Under' Crawford & Moses’ • Digest; § 6160, an indictment charging the selling of intoxicating liquors and being interested in their sale is sufficient, and charges but one offense.
    Appeal from Sebastian Circuit Court, Fort Smith District; John E. Tatum Judge;
    affirmed.

      T. S. Osborne, for appellant.

      J. 8. Utley, Attorney General; Jno. L. Carter, W. T. Hammock, and Darden Moose, Assistants, for appellee.
   Hart, J.

John Miller prosecutes this appeal to reverse a judgment of conviction against him for being interested in the sale of intoxicating liquors.

Will Sandalin was the principal witness for the State. According to his testimony, during May, 1923, he was working as lineman for the Southwestern Bell Telephone Company in the city of Fort Smith, Ark. His- foreman was named Hare, and drank whiskey. One evening about five o’clock in May, 1923, Hare,told Sand-alin to go to Ninth and G- Streets in Fort Smith, Ark., and buy him a pint of whiskey from a man whom he Would find there. When Sandalin got there, a man walked towards him and asked him if he wanted him. Sandalin asked the man - if he had a pint of whiskey. The man replied that he did, and Sandalin told him to bring it to him between Fifth and Sixth streets on North A Street in about thirty minutes. About thirty minutes later, while Sandalin was standing in an alley between Fifth and Sixth streets, the man and a woman came up to him. The woman had. a package in her hand, and laid it down in Sandalin’s car. He then laid down the money for the whiskey, and she picked it up. He gave her $3 for a pint of whiskey. The defendant was with the woman, but did not say a word. Subsequently Sandalin identified the defendant, John Miller, as the man in question, and Vivian Hubbard as the woman with him. A few days after this transaction took place the sheriff arrested the defendant in a room on the premises controlled by Vivian Hubbard. He found the defendant and two other men in a room together. There was a small glass with a small amount of whiskey in it in the room. In the second room .from that one the sheriff found the top of a fruit jar saturated with whiskey, and just outside of a window of the same room he found a half-gallon jar in a paper sack with some whiskey in the jar. The ground near by was saturated with corn whiskey, where the fruit jar had been thrown out of the window.

The defendant denied selling the whiskey to the prosecuting witness, and introduced other evidence tending to show that he was in the State of Oklahoma at the time Sandalin testified that he bought the whiskey from him.

We do not deem it necessary to set out this evidence in detail. While counsel for the defendant' insist that the evidence in question shows conclusively that he was in the State of Oklahoma on the date that Sandalin testified 'that he bought the whiskey from him, yet this contention does not take into consideration the evidence of Sandalin. If the jury had believed the witnesses for the defendant, it would have found him not guilty. Having found him guilty, it is evident that the jury believed the testimony of Sandalin and did not believe that of the defendant and his witnesses. The jury had the exclusive right to judge the' credibility of .the witnesses, and the testimony of Sandalin, if believed by the jury, warranted it in finding the defendant guilty -of being interested in the sale of intoxicating liquors, in violation of the statute. Ellis v. State, 133 Ark. 540; Snead v. State, 134 Ark. 303; and Johnson v. State, 152 Ark. 218.

It is next insisted by counsel for the defendant that the court erred in admitting the testimony of the sheriff to the effect that he found liquor in the room in which the defendant was arrested, and also in an adjoining room.

It will be noted that the defendant was arrested on the premises of Vivian Hubbard a few days after Sandalin testified that he bought the whiskey from the defendant and Vivian Hubbard. While Vivian Hubbard actually handed the whiskey to Sandalin and received the money for it, the defendant was with her at the time, ■and the sale was completed pursuant to an agreement had between Sandalin and the defendant thirty minutes before this. The evidence was 'Competent as tending to show that the transaction between the defendant and Sandalin was a sale, and that Miller was interested as a seller and not as the mere purchasing agent of Sandalin. Turner v. State, 130 Ark. 48, and Lowery v. State, 135 Ark. 159.

While it is well settled that, upon the trial of one offense, evidence of another crime, although of the same nature, cannot be admitted to show the guilt of the accused, still there are certain well-recognized exceptions to the general rule, and such evidence is receivable ■whén necessary to prove scienter, to establish identity, or to complete a chain of circumstantial evidence of guilt in respect to the crime charged. Hence we hold that this assignment of error is not well taken.

It is next contended that the court erred in giving instruction No. 5, which is as follows:

“The burden of showing an alibi is on the defendant; but if, on the whole case, the testimony raises a reasonable doubt that the defendant was present when the crime, if any, was committed, be should be acquitted; but the jury should scrutinize the testimony of witnesses, to see if any of them may not be mistaken, as to dates and times when they saw defendant; and it is proper for the jury to consider the lapse of time since the occurrence happened, and whether witnesses are likely or not likely, after such lapse of time, to be accurate' as to the precise time or hour that they saw the defendant at the time the crime is alleged to have been committed. In other words, in arriving’ at your conclusion on this point, the jury should consider whether it may or may not be true that defendant was present at the time and place the crime is alleged to have been committed, and that some of the witnesses are honestly mistaken as to the exact time they saw the defendant at the time the crime is alleged to have been committed.”

The error pointed out is that the court erred in saying that the jury should scrutinize the testimony of witnesses to see if any of them may not be mistaken as to dates and times when they saw the defendant. The language used does not make the instruction so inherently defective as to make it erroneous and prejudicial to the rights of the defendant, in the absence of a specific objection to it. Bruder v. State, 110 Ark. 402, and Griffin v. State, 141 Ark. 43.

In telling the jury to scrutinize the testimony of the witnesses testifying with regard to the alibi of the defendant, it cannot be said, as a matter of law, that the court instructed the jury to consider that evidence more closely than the other evidence in the case. If the defendant thought that it had this meaning and was calculated to mislead the jury, he should have, as above stated, made a specific objection to this instruction, and doubtless the court would have changed the verbiage of it. Hence we do not consider this assignment of error well taken.

The indictment in this case accuses the defendant, John Miller, of the crime of selling intoxicating liquors, committed as follows, to-wit:

. “The said defendant, John Miller, in the county, district, and State aforesaid, on the 15-th day of May, 1923, unlawfully and feloniously did sell and unlawfully and feloniously was interested in the sale of ardent, vinous, malt, spirituous, fermented, alcoholic and intoxicating liquor, against the peace and dignity of the State of Arkansas.”

Where a statute makes indictable two or more distinct acts connected with the same transaction, each of which may be considered as representing a phase of the same transaction, they may be charged conjunctively in a. single count, as constituting but a single offense. Cox v. State, 149 Ark. 387.

This court has held that an indictment under our statute alleging.that the defendant “unlawfully did sell and was unlawfully interested in the sale of one pint of alcoholic, ardent, and vinous liquors,” is .sufficient, and charges but one offense. Davis v. State, 50 Ark. 17, and Thompson v. State, 37 Ark. 408; and see Gramlich v. State, 135 Ark. 243.

• • This rule applies here, and we hold that the- indictment charges but one offense. '

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


author: Smith, J.

text:
    Mayfield v. State.
    Opinion delivered October 22, 1923.
    1. CRIMINAL LAW — JURISDICTION OF EXAMINING COURT. — Where a justice of the peace, sitting as an examining court on a charge of felony, found that accused was not guilty of -the felony, but that he was guilty of- a misdemeanor, it was his -duty to hold him.to answer that charge.
    2. Justices of the peace — criminal jurisdiction — pleading.—* Since,no written information or pleadings are required in justices’ courts (Crawford & Moses’ Dig., § 3298), a justice of the peace, having found that a prisoner was not guilty óf the felony charge brought against him, had jurisdiction to try him for a misdemeanor, without any affidavit or other written pleading being filed with him.
    3. Justice op the peace — ceiminal jurisdiction — appeal.—Where affidavit and warrant charging a felony brought accused before a justice of the peace, who tried and convicted him of a misdemeanor, and he appealed to the circuit court, as the trial in the latter court was de nova, it was unimportant to inquire as to irregularities in the justice’s court.
    4. CRIMINAL law — APPEAL PROM JUSTICE — ARRAIGNMENT.—In a trial of a misdemeanor in the circuit court on appeal from a justice of the peace, it was unnecessary to arraign the defendant, since Crawford & Moses’ Dig., § 3054, requires arraignment only when accused is tried on indictment.
    5. Intoxicating liquors — evidence.—Evidence held to support a finding that defendant transported intoxicating liquors.
    6. Criminal law — proof op other crimes. — While proof of another crime is inadmissible as a circumstance from which to infer guilt of the crime charged, yet if the offense charged and the offense proved are so connected that they form parts of one transaction, the' evidence of both is admissible.
    7. Criminal law — proof op other crime. — In a prosecution for transporting liquor, evidence was admissible that, after transporting it, defendant placed a drug in it which rendered a witness for the State unconscious, and that while the witness was insensible he was robbed.
    Appeal from Crawford Circuit Court; James Cochran, Judge;
    affirmed.

      D. II. Howell, for appellant.

      J. 8\ TJtley, Attorney G-eneral; John L. Carter, W. T. Hammoch and Darden Moose, Assistants, for appellee'.
   Smith, J.

An affidavit was made by J. B. Kelley, before a justice of tbe peace, charging appellant and another man with the ■ crime of robbery and of giving away whiskey, and upon this affidavit a warrant' of arrest issued in which appellant was charged with the commission of those 'crimes.

There was an examining trial before the justice of the peace, at the conclusion of which the justice entered the following judgment: “The court dismisses the robbery, believing the evidence insufficient to .sustain the case of felony. In whiskey case the court finds the defendant guilty of transporting whiskey and assess their fine at one hundred dollars 'and costs.”

There was an appeal to the circuit court, and, upon the coining on of the cause for trial, .appellant filed a motion to dismiss upon the ground that the justice court had no jurisdiction, for the following reasons: “First. That there was no affidavit or information filed in said court charging the defendants with transporting. Second. The said justice had no personal knowledge of said offense. Third. That the defendants were not furnished with a copy of the affidavit or information, or made aware that they were being tried on a charge of transportation, and in fact were not tried on said charge. ’ ’

This motion was overruled, and, after a trial before a jury, appellant was found guilty of transporting liquor and fined $100, and judgment was rendered accordingly.

For the reversal of this judgment appellant assigns as error the action of the court in overruling his motion to dismiss. He also insists that the testimony was insufficient to sustain the charge, and that error was committed in the admission of certain testimony.

The justice sat as an examining court, for the charges preferred were felonies, and when it was found that appellant was guilty of a violation of the law other than the ones charged, it was the duty of the justice to hold him to answer that charge. Section 2933, C. &. M. Digest, so provides.

It is true the justice should have given time to prepare to meet that charge, had that request been made, hut it does not appear that such a request was made. However, the justice had jurisdiction to try appellant upon the charge of transporting liquor, and this he did, and the refusal to grant a continuance, had one been asked, would not have defeated his jurisdiction.

By § 3298, C. & M. Digest, it is provided that no written information or pleadings shall be required in prosecutions in justices’ courts. There was therefore no lack of jurisdiction on the part of the justice to try appellant upon the charge of transporting liquor.

We do not stop to inquire whether there was any error in the procedure before the justice or not, as the cause was appealed to the circuit court, where there was a trial de novo. The original affidavit and warrant had brought appellant into court, and the justice, sitting as an examining court, found appellant was guilty of an offense and imposed a fine for its commission. This became the offense with the commission of which appellant was charged upon his appeal to the circuit court, and it was unimportant to inquire whether there had been irregularities leading to this situation, because the trial in the circuit court was de novo. Watson v. State, 29 Ark. 299; Lismore v. State, 94 Ark. 207; Dudney v. State, 136 Ark. 453; Kinkead v. State, 45 Ark. 536; Cox v. Jonesboro, 112 Ark. 96; State v. Brown, 131 Ark. 127; Ashcraft v. State, 140 Ark. 505; Tucker v. State, 86 Ark. 436.

The failure of the court to arraign appellant is assigned as error. In answer to this assignment of error, it may be said that no arraignment was required, as appellant was not being tried under an indictment. Section 3054, C. & M. Digest.

The assignments of error, that the • testimony is legally insufficient to support the verdict, and that evidence was erroneously admitted, may be considered together.

The testimony on the part of the State was to the effect that appellant came into the restaurant of J. B. Kelley, the affiant who made the affidavit for the warrant of arrest, about midnight, where he and his companion cooked .supper for themselves, and one of them suggested to Kelley that they have a drink. Kelley then looked and saw some whiskey in a fruit jar on a table which he had not seen before. Kelley drank some of the whiskev, and soon lost consciousness, and he testified that he did not regain consciousness until the next day, and that when he did regain consciousness he found he had been robbed.

An abjection was made to the. admission of. the testimony that Kelley had been robbed. The keeper of another restaurant testified that appellant and the companion came.to his place of business about midnight and wanted supper, and offered the witness a drink of whiskey if he would cook supper for them, but witness declined to do so. Witness Herrington testified that he cooked for Kelley at .the restaurant, and was the only” one of' the cooks who worked that night, and that when he washed the dishes and closed up at nine o’clock there was no whiskey in the kitchen.

We think this testimony supports, the finding that appellant carried the whiskey into Kelley’s kitchen; and we are also of the opinion that no error was committed in permitting Kelley to testify that he was robbed. It is, of course, well settled that proof of one crime cannot be admitted as a circumstance from which to infer guilt of the crime charged; but it is equally as well settled that if the offense charged and the offense proved are so connected that they form parts of one transaction, the evidence of both is admissible, and this competent testimony is not to ¡be excluded because’ it tends to show that accused committed a crime in addition to the one for the commission of which he was on trial. Johnson v. State, 152 Ark. 218; Hanson v. State, ante p. 329.

It was necessary for the State to show that the whiskey did not belong to Kelley, and that appellant had brought it to Kelley’s restaurant. As tending to show that the whiskey did not belong to Kelley, it was competent to show that the whiskey was drugged, for the jury might well have found that Kelley would not place a drug in liquor so powerful that one drink of ’ it would render him unconscious for a day, and the fact that he was robbed is a circumstance to be taken.into account in determining the truth about the ownership and posses- ■ sion .of the whiskey.

No error appearing the judgment is affirmed.


author: Humphreys, J.

text:
    Miller v. Witcher.
    Opinion delivered October 22, 1923.
    1. Constitutional law — delegation op legislative power. — While the Legislature cannot delegate its power to make a law, it can make a law and prescribe the condition upon which it may become operative.
    2. Statute — construction as a whole. — No part of an act should be eliminated as conflicting with any other part therein if all the parts can be harmonized so as to reflect the true intent of the law-making body.
    3. Statute — condition op becoming' operative. — The Legislature may provide that an act creating an improvement district and not containing an emergency clause shall be submitted to the voters of the district who are landowners therein on a date within the ninety-day period after adjournment of the Legislature, and therefore before the act could become operative.
    Appeal from Woodruff Chancery Court, Northern District; A. L. Hutchins, Chancellor;
    reversed.

      J. F. Summers, for appellant.
    The chancellor erred in holding that the case of Gaster v. Dermott-Collins Road Imp. Dist., 156 Ark. 507, was decisive of this case. The Legislature, having the exclusive power of determining whether- such an act shall or shall not be submitted to popular vote, may also determine how the voté shall be taken. 72 Ark. 195; 114 Mass. 214. It also had the power to create the district without submitting the adoption to the qualified voters- of the district. 145 Ark. 143. It could also lay out the- district and put it in operation without the consent of the property owners. 96 Ark. 140. It is the duty of courts to give to. a statute such a construction, if possible, as will enable it to take effect. 63 Ark. 576; 89 Ark. -466; 80 Ark. 150.

      jE. M. Carl-Lee, for appellee. '
    The act in question has never become operative because the election called for its approval was unauthorized and void. 104 Ark. 583; 110 Ark. 528; 117 Ark. 266; 156 Ark. 512. Where an act is so vague and uncertain as to convey no meaning, or if it is so conflicting and inconsistent in its provisions that it cannot be executed, it should be declared inoperative and void. 143 Ark. 87; 122 Ark. 491; 130 Ark. 70.
   Humphreys, J.

This suit was brought by appellees against appellants in the 'chancery court of Woodruff County to restrain them, as commissioners of Fencing District No. 4, in said county, from enforcing the act creating the district, alleging that the act in question is unconstitutional and void. The act was attacked upon the ground that it contained a provision that did not become effective until adopted by a majority of the voters who are landowners in the district, at, an election to be held on the 3d day of April, 1923'.

Appellants, by way of defense, allege that an election was held in the district upon April 3,1923,. in accordance with the provisions of the act, which resulted in adopting the act by a majority of the voters who were landowners in the district; that, pursuant to the election, and more than ninety days after the adjournment of the Legislature, they were proceeding to carry out the provisions of the act in question.

Upon a hearing of the cause the court permanently enjoined appellants from carrying out the provisions of the' act, and from the decree of injunction an appeal has been duly prosecuted to this court.

No emergency clause was attached to the act. The date fixed in § 10 for the election in said district was within the ninety-day period after the adjournment of the Legislature that the act was referable to the whole people of the State for approval or disapproval. On account of the omission of the emergency clause, the act could not become effective for ninety days after the adjournment of the Legislature which created the district. It is argued that, because the Legislature fixed the date within the ninety-day period for the act to become effective or ineffective, contingent upon the vote of the electors who are landowners in the district, it amounted to a delegation of legislative authority to them, and rendered the act invalid. Of course, if such was the intent of tbe Legislature in providing for the election, the act is unconstitutional, for the Legislature has no right to delegate its legislative powers. While the Legislature cannot delegate its power to make a law, it can make a law and prescribe the condition upon which it may become operative. In other words, the Legislature can enact a law and prevent its operation until certain conditions are complied with. Boyd v. Bryant, 35 Ark. 69; Noll v. Kennedy, 120 Ark. 277; Fenolio v. Sebastain Bridge Dist., 133 Ark. 380. The only way to give any effect to that part of § 10 of the act providing for an election in the district is to say the Legislature intended to impose that condition before the act could toe put in operation. This construction of that clause is reasonable, for the act became effective under article 5, § 1, of the Constitution of the State of Arkansas, as amended by Constitutional Amendment No. 7 and put into effect by act No. 2 of the General Assembly of the State of Arkansas, approved June 30, 1911. Until the expiration of the ninety-day period after the adjournment of the Legislature, the voters had the power to refer the act to the people as a whole, for approval or rejection, at the next general election. Hodges v. Dawdy, 104 Ark. 583; Tomlinson Bros. v. Hodges, 110 Ark. 528; Hodges, v. Board of Imp., 117 Ark. 266; Thompson v. State, 151 Ark. 369. If this meaning is given to § 10, there is no conflict as to when the act shall become effective. The whole act would then mean that, if the voters in the district who are landowners approve the act by a majority vote on April 3, 1923, then the act shall become tooth effective and operative ninety days after the adjournment of the Legislature, if not referred to the whole people for approval or rejection. One of the well-known canons of construction is to construe a law so as to give some meaning to all its parts, if possible, provided the construction placed upon the law is not inconsistent with the language used therein. No part of the act should be eliminated as conflicting with any other part therein if all tlie parts can 'be harmonized bo as to reflect the true intent of the lawmaking body.

Appellees contend, however, that, even if the Legislature had power to require an election and approval of the act by a majority vote in the district before the act should be put in operation, it had no power to fix the election on a date prior to the expiration of the referendum period. They cite the case of Gaster v. Dermott-Collins Road Imp. Dist., 156 Ark. 512, in support of their contention. The act which was before the court for construction in that case provided for the chancellor to designate a date and hold an election in the improvement district for the approval or disapproval of the act, and the chancellor ordered and held an election within ninety days after the Legislature adjourned. . The court did not declare the act void because the chancellor did this. It ruled that the Legislature intended for the election to be fixed at some time after the expiration of the referendum period, and not before. The decision in that-case does not rule this case. A different question was involved in the two cases. In the act before us for construction in the instant case the Legislature fixed a definite day for the local election, thereby clearly manifesting its intent as to the time the election should be held. The Legislature was clearly within its power in enacting the law and in imposing the condition on which it should become operative after the expiration of the referendum period.

The decree is therefore reversed, and the 'cause is remanded with directions to dissolve the injunction and dismiss appellee’s bill for the want of equity. ■


text:
    Curlee Clothing Company v. Hamm.
    Opinion delivered October 22, 1923.
    1. Bankruptcy — discharge op partnership. — Where a bankruptcy proceeding was against a partnership and the members thereof as partners, but not individually, and subsequently a composition was offered to and accepted by the firm creditors only, and the schedule of assets embraced only partnership property, an order of discharge of the members from their individual indebtedness is broader than the record, and it did not operate to discharge the members from their individual liability.
    2. Bankruptcy — language op order broader than record. — Where an order confirming a composition agreement with a partnership contains language purporting also to discharge the individual members from individual indebtedness, the order being broader than the record upon which it is based, such language is regarded as surplusage.'
    3. Partnership — individual liability por firm debts. — -In every general partnership obligation, an individual as well as joint liability of the several partners attaches, and each partner is personally liable for the entire indebtedness of the partnership.
    Appeal from Crawford Circuit Court; James Cochran, Judge;
    reversed.

      I. J. Friedman and Rogers Barber & Henry for appellants.
    The bankruptcy act of 1898 permits tbe adjudication of the partnership as an entity, as distinguished from the individuals composing it. 162 C. C. A. 178, 250 Fed. 6, 251 U. S. 239. There is no distinction in bankruptcy between joint and several obligations. 38 Am. B. Rep. 6; bankrupt act § 16a. The liability of a partner for debts of the firm in primary and direct, and is not collateral. 3 R. C. L. 318. The signatures of the individuals in addition to that of the firm served to bind them as sureties for the partnership debt, and the case falls in the same class as the case at 122 Ark. 316. The composition was offered to the partnership creditors alone. No proceedings were filed against appellee and no adjudication against him as a bankrupt was had. The certificate of discharge could go no further than the record upon which it was made. 183 Fed. 144; 7 C. J. 368. The discharge of appellee from liability as a member of bis firm did not serve to release him on his liability as a surety. 73 Ark. 480. There is no distinction between this debt and other personal debts. 247 Fed. 667; 248 U. S. 567, 63 L. ed. 425. See also 250 Fed. 6, 251 IT. S. 239, 40 S. C. R. 135.

      Starbird & Starbird, for appellee.
    Neither the bankrupt act nor Federal decisions under it work any change in the established rules fixing the substantive rights of the creditors, respectively, of the partnership or its individual members. 184 Fed. R. 224. There is no evidence to show that this was an individual obligation, and the trial court held against such contention. Its finding on a question of fact is conclusive when sup-parted by any evidence. 149 Ark. 517. If a partnership transaction, then the note is a partnership note, though signed by the individual partners. 73 Ark. 480. The signature of the individual partners made them no more liable than if the partnership name had alone been signed. Lindley on Partnership, 256; 3 R. C. L. 318. The order confirming the composition released the Hamm Company and the individuals from further liability. IT. S. Comp. S'tat. § 9598-C .
   Humphreys, J.

The question presented for determination on this appeal is whether a discharge in bankruptcy of a partnership works a discharge of the individual members thereof from the partnership debts. Each of the appellants brought suit against appellee in the Crawford Circuit Court upon a note signed by The Hamm Company and by Dix Hamm, who is the appellee.

To each of the suits appellee interposed the defense that he had been released from the payment of the notes by an offer and acceptance of a composition in the bankruptcy proceedings in the United States District Court for the Western District of Arkansas against the Hamm Company, a copartnership composed of Dix Hamm, Garland Hamm and Fred Hamm, and the individual members thereof. He alleged in his answer that both the partnership and the individual members thereof were adjudged bankrupts, and that the composition, offered and accepted and afterwards approved by said United States District Court, was in full satisfaction of all claims against said firm and the individual members thereof on account of the indebtedness of said copartnership debts.

' At the suggestion of the court, and by the consent of the parties, the causes were consolidated and tried on an agreed statement of facts, which resulted in judgments in favor of appellee, from which is this appeal. The agreed statement of facts contained the complete record of the bankruptcy proceeding of the Hamm Company et al. in the United States District Court for the Western District of Arkansas, and the following stipulations:

“1. That the notes in each of the cases in suit were given to pay for goods bought for use in the partnership business.

“2. That the twenty per cent, composition was paid on debts of the Hamm Company, and no part of this twenty per cent, was paid to creditors of the individual partners. That each of the plaintiffs received twenty per cent, composition on each of the notes sued on.”

We deem it unnecessary to set out the bankruptcy proceedings in full. To do so would unduly extend this opinion. Suffice it to say that we have carefully examined the exhibits of the record of the bankrupt proceeding, made a part of the agreed statement of facts, and the examination reveals that the proceeding was against the Hamm Company and the individuals thereof as partners. The composition was offered to the firm creditors only, and not to the individual creditors of the members thereof. It was accepted by the firm creditors only. The notes given were to the firm, and not to the individual creditors or the members thereof. The schedule of assets embraced the property of the partnership only. No schedule was signed by the several members of the partnership embracing their individual estate as distinguished from tlie partnership estate. There is language in the order confirming the composition which purports to discharge the individual members of the firm from their individual indebtedness, but it must be regarded surplusage, for the order is broader than the record upon which it is based. 7 C. J. 368; In re Neyland v. M’Keithen, 184 Fed. 144. There is combined in every general partnership obligation in- this State an individual as well as a joint liability of the several partners. In every general partnership each party is personally liable for the entire indebtedness of the partnership. The-fact that appellee signed the notes sued upon individually did not enlarge his liability. He was individually liable whether he signed the notes or not, same being partnership obligations. In this view we deem it unnecessary to discuss the question raised by appellant of the entity of the partnership as distinguished from the individuals composing it. This brings us to the determination of the question of law involved, that is to say, whether the discharge in bankruptcy of the partnership releases the individual members thereof from paying the partnership debts. Our answer is that it does not, unless, in the adjudication of the partnership as a bankrupt, the individual members thereof were adjudged bankrupts. This could only be accomplished in the same proceeding by bringing in the individual creditors and individual assets of the copartners. This court ruled, in the case of William R. Moore Dry Goods Co. v. Ford, 146 Ark. 227 (quoting syllabus three), “a discharge in bankruptcy of a partnership in which the individual members are not adjudicated bankrupts has no effect upon the individual liability of such members.” In support of the rule announced, the writer of that opinion cited Armstrong v. Norris, 247 Fed. 253; Horner v. Hamner, 249 Fed. 134; Francis v. McNeal, 228 U. S. 695.

For the error indicated the judgments are reversed, and judgments are directed to be entered here for appellants for the several amounts due them.


author: McCulloch, C. J.

text:
    Miller v. Fort Smith.
    Opinion delivered October 29, 1923.
    1. Costs — consteuction op statutes. — Statutes regulating costs in litigation and fees of officers are to be strictly construed, and no officer is entitled to fees taxed as costs in cases unless there is a statute authorizing it.
    2. Costs — pees op peosecuting attoeney. — As there is no statute requiring the prosecuting attorney to appear and prosecute for violations of municipal ordinances, nor to receive any fee therefor, an order of the circuit court requiring the prosecuting attorney to appear in such cases was not authorized, and affords no justification for imposing fees against persons accused of such violations. , , j
    Appeal from Sebastian Circuit Court, Fort Smith District; John E. Tatum, Judge;
    reversed.

      T. 8. Osborne, for appellant.
    Under the statutes authorizing the election of a city-attorney, and providing- that he, as also other city officers, shall receive a salary, he must perform every duty in the scope of his election or appointment, without increase or decrease of pay during his term of office, and without any additional compensation by way of fees, etc. Crawford & Moses’ Digest, 7690, 7693, 7521. There is no authority for the prosecuting attorney to appear and prosecute in any case other than a State case, and receive a fee therefor. He cannot appear and prosecute in the name of the city under a municipal ordinance. 122 Ark. 374; 124 Ark. 18; 12 Ark. 122; 57 Ark. 209; 86 Ark. 259; 103 Ark. 601; 102 Ark. 43; 93 Ark. 530; 61 Ark. 407; 15 Corpus Juris, 317-318, § 788; Id. 315, § 782; Id. 185-189, §§ 446-453.
   McCulloch, C. J.

Appellants, John Miller and Vivian Hubbard, were tried and convicted in the municipal court of the city of Fort Smith of the offense of keeping and using a room for immoral purposes, in violation of one of the ordinances of the city. They appealed to the circuit court, and on the trial anew they were again found guilty and fines were imposed. The city attorney appeared in the circuit court and prosecuted the case to a conviction. On a previous day of the court an order had been announced requiring the prosecuting attorney to appear in all criminal cases appealed from the municipal court, and directing the clerk in such cases to tax fees for the prosecuting attorney “as though said cause had originated in the circuit court.” Pursuant to this order, the court taxed a fee of $10 against each of the appellants for the prosecuting attorney. Appellants then filed a motion to retax the costs and strike out the fees of the prosecuting attorney, which motion the court overruled, and an appeal has been duly prosecuted to this court.

There is no requirement in the statutes of this State for a prosecuting attorney to prosecute cases for violation of municipal ordinances, nor is there any authority in the statute for the imposition of a fee for the prosecuting attorney against a person convicted under a municipal ordinance.

A municipal judge has jurisdiction of criminal cases arising under the State laws, and the prosecuting attorney is allowed a fee by the statute for prosecuting State cases in municipal courts. Crawford & Moses’ Digest, § 7734; Peay v. Pulashi County, 103 Ark. 601. The statute referred to does not, however, require the prosecuting attorney to appear and prosecute for violations of municipal ordinances, nor does it allow him any fee in such prosecutions.

Statutes regulating costs in litigation and fees of officers are to be strictly construed, “and no officer is entitled to fees taxed as costs in cases unless there is a statute authorizing it.” Peay v. Pulashi County, supra.

The previous order of the court directing the prosecuting attorney to appear in the case was made without authority of law, and it affords no jurisdiction for the imposition of unauthorized fees against persons accused. Nor is there any statute authorizing the allowance of a fee to the city attorney for prosecuting’ for violations of municipal ordinances. The statutes on this subject provide that municipal officers shall receive salaries, “and shall in no instance receive any additional compensation by way of fees, fines or perquisites. ’ ’ Crawford & Moses ’ Digest, §§ 7690, 7693.

The judgment of the circuit court is therefore reversed, and the cause remanded with directions to retax the costs by striking out the fee of the prosecuting attorney. It is so ordered.


text:
    Scott v. Brown.
    Opinion delivered October 29, 1923.
    1. Judgment — collateral attack.. — Habeas corpus proceedings by a mother to secure custody of her child constitute a collateral attack upon the judgment of the juvenile court appointing a guardian of such child, where such appointment is pleaded as a defense.
    2. Guardian and ward — jurisdiction op prorate courts. — The jurisdiction of the probate court to appoint guardians for infants was not impaired by the statute authorizing the juvenile court in certain cases to appoint guardians for neglected or delinquent children.
    S. Infants — jurisdiction of juvenile court to appoint guardian. —Appointment of a guardian for a child of tender years by the juvenile court was void where it affirmatively appears that the condition of the child was. not such as to bring it within the jurisdiction of the juvenile court; the jurisdiction of the probate court being otherwise unimpaired.
    4. Parent and child — custody of child. — On certiorari to review a decree in a habeas corpus proceeding awarding custody of a child to its mother, a mere statement in a pleading that the juvenile court had appointed a certain person guardian of the child is insufficient to afford a reason for continuing the child in his custody as against the rights of the child’s mother, there being no showing that the juvenile court acquired jurisdiction to make such appointment.
    5. Courts — comity between courts of states. — Where, in habeas corpus by a mother to recover possession of her infant child, it appears that respondents had previously brought habeas corpus for possession of the child against the mother in the court of another State,' and, having secured possession by virtue of the writ, respondents, without awaiting the court’s decision, brought the child to this State, and refused to obey the order of such court to return the child to its mother, such conduct was a fraud upon the jurisdiction of such court, and respondents will not be permitted to contest in this State for custody of the child.
    Appeal from Crittenden Chancery Court; Archer ■ Wheatley, Chancellor;
    affirmed.

      Wils Davis and W. B. Scott, for appellants.
    1. The juvenile court of Crittenden County had original, exclusive jurisdiction of this matter, and exercised it. 141 Ark. 213, 225.
    2. The chancery court had no supervisory jurisdiction over the juvenile court, or over the custody of the child itself. Art. 7, § 14, Constitution 1874; 141 Ark. 227.
    3. If the chancery court had jurisdiction, it was not bound by the former decision of the criminal court of Shelby County, Tennessee, and the facts in this case call for the exercise of the duty of the courts to consider first the welfare of the child, and its best interest in awarding its custody. 106 Ark. 205.

      Geo. E. Neuhardt and Clyde H. Koen, for appellee.
    . _ 1. So far as the controversy between Mrs. Scott . and Mrs. Brown is concerned, the former is concluded by the decision in the habeas corpus proceeding in the Shelby County Criminal-Court. It is res judicata. 211 Ill. 519; 112 Ind. 183; 165 Ind. 332; 75 Kans. 462; 165 Mich. 61; 99 Mo. 484; 26 N. D. 23; 38 Okla. 751; 57 W. Ya. 520.
    2. Taking the child out of the jurisdiction- of the Tennessee court and bringing it into this State, after Mrs. Scott obtained possession of the child by virtue of the writ of habeas corpus, and refusing to return it after the order to do so was made, constituted the crime of kidnapping. Kirby’s Dig., §§ 1815-16; 6 Wyo. 203; 89 Cal. 144; 9 Canadian Crim. Cases, 158; 24 Cyc. 797 (B) ; Id. 799 (b); 43 Ohio St., 567; 24 Cyc. 801 (3); Shannon’s Code (Tenn.) § 6465.

      3. Tlie child was a citizen of Tennessee, unlawfully in Arkansas, and not a citizen thereof. The question of jurisdiction of the chancery court was not properly raised in tlie lower court. .Kirby’s Digest, § 6120. There was no lawful guardian. The appeal from the juvenile court’s action in appointing a guardian - suspended all further action. Kirby’s Dig., § 1350;
    4. The paramount interest and welfare of the'child is conceded, but, as between a parent and a stranger, the right of the parent to the custody is superior. 3 Mason (U. S.) 482; 4 Am. Rui. Cas. 892; 112 Ind. 183; 2 Am. Rui. Cas. 558;.24 "Wash. 332. Especially is this true where, as in this case, there is question as to the moral fitness of the parent to have custody of the child. 211 Ill., 519; Am. & Eng. Ann. Cas. p. 256; 99 Mo. 494; 37 Ark. 27; 4 Am. Rui. Cas. p. 884.
   McCulloch, C. J.

This case involves the custody of Nellie Josephine Brown, a girl about ten years of age, the daughter of Mrs. Nellie Brown, the appellee, who resides in Memphis, Tennessee.

Mrs. Brown had five children, the little girl involved in this controversy being the youngest. She placed this child in an orphans’ asylum in Memphis, under an arrangement whereby she was to pay board.for the child.

Appellants, John W. Scott and his wife, Ethel Rhodes Scott, reside in Crittenden County, Arkansas, and, being childless, they went to the orphans’ asylum in Memphis to obtain a child, being attracted by an advertisement accompanied by pictures of children. They selected the child in controversy, and it was represented to them that the child’s parents were dead. They took the child with them to their home in Crittenden County. About a month later Mrs. Brown learned that her child. had been sent away, and she declined to abide by that disposition of the.child, and demanded and received it back. After keeping the child about two months, she changed her mind and consented for the Scotts to take the child, and promised that she would not again take the child away from them, but she declined to consent for them to adopt the child as their own. She exacted a promise from the Scotts that they would permit the child to visit her, and that she should be permitted to visit the child at the Scott home at reasonable times. The child was kept by the Scotts under this arrangement for nearly two years, and finally, on a visit to Memphis, they took the child with them, and, while stopping in a hotel there, Mrs. Brown took the child from the hotel and carried it away, and kept it for about two months, when Mrs. Scott sued out a writ of habeas corpus before one of the judges of the criminal court in Memphis to secure custody of the child. The writ was issued commanding the sheriff to take the child from the custody of Mrs. Brown and deliver it to the custody of Mrs. Scott, and the cause was set down for hearing two days later. The writ was served by the sheriff in accordance with its directions, and the custody of the child was thus changed from Mrs. Brown to Mrs. Scott, and the latter immediately brought the child away from Tennessee to her home in Crittenden County. Mrs. Scott did not return to Memphis on the day of trial, nor at any subsequent time. Her attorney appeared and secured repeated continuances of the hearing upon the writ of habeas corpus, and the court issued a citation for Mrs. Scott to appear ' or be adjudged in contempt. There was still no appearance, and finally the court dismissed the original petition, and directed that Mrs.. Scott restore the custody of the child to Mrs. Brown. It appears that Mrs. Scott has never returned the child within the jurisdiction of the Tennessee courts since she secured the custody under the writ above mentioned.

Mrs. Brown instituted this action before the chancellor in Crittenden County, against the Scotts, and prayed for a writ of habeas corpus requiring the production of the child, and that its custody be awarded to her on a final hearing. The writ was issued, and, on a final hearing, the Scotts appeared, and they, together with Louis Barton, who claimed to be acting as guardian of the child, filed an answer disputing the right of the appellee, Mrs. Brown, to the custody of the child.

It is alleged in the joint answer filed by the Scotts and Mr. Barton that the latter “is the lawful and duly constituted guardian of the minor mentioned in the petition, to-wit: Nellie Josephine Brown, appointed as such by the juvenile court of Crittenden County,” and that the defendants, John "W. Scott and Ethel Rhodes Scott, ‘ ‘ are in custody of said minor child, above named, under and by authority of its legal guardian, Louis Barton.”

The chancellor heard the cause upon the pleadings and upon the certified record of the proceedings in the habeas corpus hearing in the Tennessee court and on oral testimony adduced by both sides, and a decree was rendered awarding the custody of the child to the appel-lee, Mrs. Brown. The cause has been brought here for review on certiorari.

The first question to be considered is whether or not the appointment of Barton as guardian of the child was made by a court of competent jurisdiction, for this proceeding constitutes a collateral attack upon the judgment of the juvenile court making the appointment. The record of the juvenile court is not brought into the present record, and there is a mere allegation that Barton claims the custody of the child under his appointment. The rules of good pleading would require that the proceedings of the probate court be set forth, which was not done; but, conceding that an appointment is shown to have been made, the jurisdiction of the juvenile court does not appear in this record. On the contrary, the facts established by evidence adduced by appellants themselves defeated the jurisdiction of the court, for it affirmatively appears in this record that the condition of the child, was not such as to bring it within the jurisdiction of the juvenile court.

The statutes of this State confer authority upon the county court to act as a juvenile court in the matter of control of delinquent and neglected children of certain ages. That statute was reviewed by this court iu the case of Ex parte King, 141 Ark. 213, and it was held that this statute did not constitute an invasion of the jurisdiction of the probate court over the persons and estates of infants, but confined its jurisdiction to'“jurisdiction over infants and their guardianship, so far as their conduct and condition might affect not only themselves but also the welfare of the communities in which they resided or might be found.” It is clear therefore, under this interpretation of the statute, that the jurisdiction of the probate courts of this State in the appointment of guardians is unimpaired, and that, in order to confer jurisdiction upon the juvenile court, the status of the child must be such as is described in the statute which confers the jurisdiction. ¥e cannot assume, from the facts shown m the present record, that the court acquired jurisdiction to award custody of this child under a showing that it was a neglected or delinquent child. We are of the opinion therefore that the mere statement in the pleading that Mr. Barton had been appointed by the juvenile court is not sufficient to afford a reason for continuing the child in his custody as against the rights of the 'Child’s mother.

There was much testimony adduced by the parties with respect to the condition of the respective claimants, that is, the Scotts and Mrs. Brown, the mother of the child. The testimony is conflicting, but it is sufficient to show that all of the claimants entertained the tenderest affection for the child. We do not, however, feel called upon to determine in this case the best interests of the child, or the rights, primarily, of the respective parties, for we are of the opinion that the conduct of appellees in bringing the child into the jurisdiction of the courts of this State constituted a violation of the jurisdiction of the Tennessee court and was, in effect, a legal fraud upon the jurisdiction of that court and. also upon the courts of this State.

There is a conflict in the authorities as to whether the judgment of a foreign court with respect to the custody of a child is res judicata, without change in the condition (9 R. C. L. 477), but we find it unnecessary to decide that question in the present case. It is conceded that the Scotts obtained custody of the child from Mrs. Brown solely by virtue of the writ of habeas corpus issued by the Tennessee court, that she took the child out of the jurisdiction of that court, and, in violation of its order, refused to restore the custody of the child when so ordered by the court. By procuring the custody of the child in that manner and'bringing it into the jurisdiction of this court, Mrs. Scott obtained an advantage which -she should not, in a court of equity, be permitted to hold, for, as before stated, it constitutes a legal fraud upon the jurisdiction of the court. The question is controlled by the same equitable principle that a litigant cannot obtain an advantage of an adversary who is under the restraint of an order of court. Little Rock Ry. & Elec. Co. v. North Little Rock, 76 Ark. 48.

The question therefore as to what the best interests of the child are, and what the rights of the parties are with respect to the child, cannot be adjudicated until there is a restoration of the custody wrongfully obtained through the writ issued by the Tennessee court. A court of this State should not lend its aid to the enjoyment of a benefit secured in that way, and if the appellants desire to contest for the custody of the child they must do so after having restored it to the custody of the appellee, Mrs. Brown, within the jurisdiction of the Tennessee court, where the custody was wrongfully obtained.

Our conclusion therefore is that the decree of the chancellor is correct, so the writ of certiorari is quashed and the decree is affirmed.

Smith, J., not participating.


author: Wood, J.

text:
    Connelly v. Parkes.
    Opinion delivered October 29, 1923.
    1:. .Highways — ENGINEER’S decision — conclusiveness. — An engineer’s decision as to the number of employees necessary to assist him in laying out and measuring the work and inspecting the materials and the compensation therefor held final under a contract between a road district and contractor specifying that the engineer’s decision as to the meaning of the specifications should he final.
    2. Highways — construction contract — conclusiveness op engineer’s finding.' — Provision in a highway construction contract that “the engineer shall have full supervision over the entire work, and his decision as to the quality of both material and construction and the meaning of all drawings and specifications shall be final and conclusive,” and that “the contractor shall
    . furnish such reasonable amount of help as the engineer may ■ desire in laying out and measuring the work or inspecting material,” did not contemplate that the decision of the engineer should be conclusive in the interpretation of the construction contract, or in the determination of any issue that might arise between the contractor and engineer as to their rights and liabilities growing out of their respective contracts with the district.
    3. Highways — construction contract — engineering work.— Under a contract obligating a highway engineer to do all the “engineering work,” held, under the evidence, that the running ‘of levels, setting slope stakes and inspecting of materials is “engineering work.”
    4. Highways — construction contract — evidence.—Preponderance of evidence held not to sustain a finding that a highway contractor verbally agreed to become responsible to the district’s engineer for the salary of an assistant.
    5.‘ Contracts — construction.—In construing a contract, the court should place itself in the situation of the parties, in order to • arrive at their intention in making it.
    6. Highways — construction contract — engineer’s help. — Where, in a contract between a highway improvement district and a contractor, it was stipulated that the contractor shall furnish “such reasonable amount of help as the engineer may desire in laying out and measuring the work and inspecting material,” held, that, in view of the custom among engineers, contractors and builders, the intention was not to authorize the engineer to employ assistants by the month to do such work, but to require the contractor to lend, usually for less than a day, one or more laborers when needed by the engineer to make or carry stakes or to hold the end of the surveyor’s chain.

      Appeal from Pope Chancery Court; W. E. Atkinson, Chancellor;
    reversed.

      John F. Clifford, for appellant.
    This is a highly technical contract, and it will he presumed that, under it, appellee was to do the engineering work for the district as engineering is usually done; and the provision as to giving the engineer a reasonable amount of help should be constructed, if possible, to have some meaning, and, as to that, it.will be presumed that the parties contracted with reference to the custom and usage in the line of business in which it was used. 19 Ark. 270; 5(S Ark. 565, 574; 84 Ark. 382; 69 Ark. 313. Under this contract and the plans and specifications made a part thereof, the engineer is, to a certain extent, a referee between the contractor and the district, but in no sense a referee between himself and the district, or between himself and the contractor. 146 Ark. 503; 100 Ark. 173. Since, under the above authorities, the engineer cannot construe or interpret the contract, it should be construed by the courts so as to harmonize all portions thereof, and to give each provision, if possible, some meaning, considering the contracts as a whole, to determine the. meaning of any particular part as well as of the whole. 94 Ark. 461; 96 Ark. 320; 104 Ark. 475; 154 Ark. 241. Moreover, it must be construed as unfavorable as its terms will admit against the party who prepared it — in this case, against the appellee. 73 Ark. 338; 74 Ark. 41; 90 Ark. 88; Id. 256; 112 Ark. 1. The existence of a custom or usage is a proper subject for expert testimony. Elliott on Contracts, par. 1797. The purported agreement to pay for such help, had it been made by Connelly, Was against public policy, and non-enforceable. 155 Ark. 288.

      Patterson & Ragon, for appellee.
    1. The contention that the rights of the parties should be governed solely by custom ignores the testimony that appellee called on appellant for the help needed, under the clause of the contract requiring the latter to furnish such reasonable help as the engineer desired, etc., and that Connelly authorized the employment of such help, agreeing to pay for it.
    2. This is not a case calling for interference with with the enforcement of a contract on the ground of public policy. 56 Am. St. Eep. 119; 70 Fed. 201; 59 Fed. 58, 59.
   Wood, J.

W. J. Parkes was employed as an engineer of Bead District No. 1 of Pope County, Arkansas (hereafter called district), under a contract with the district to do all of its engineering work connected with the improvement to be made by the district, and to pay all the expenses incident thereto for the compensation named in the contract, specifying the work to be done, and, among other things, the following: ‘ ‘ The supervision of all construction work, to pay expenses of draftsmen, assistant engineers and other help of whatever kind or character needed in doing the complete engineering* work, and to give all of their time necessary to prosecute said engineering work without delay, and to pay all expenses of doing same.” The contract further provided that the appellee was “to do the work herein described for the compensation herein set forth.”' The compensation set forth in the contract was five per cent, of the construction cost of all improvements made by the district, not exceeding in cost '$1,000,000, and four per cent, of all such cost in excess of $1,000,000. This contract was entered into April 3, 1919, between appellee and the district. On August 14, 1919,P. F. Connelly and the district entered into a contract for the construction of the work for which the district was created. There was a provision in this contract making the plans and specifications furnished by the district a part of the contract. These plans and specifications were prepared by the appellee Parkes. Among the other provisions contained therein was the following: “The work shall be staked or marked out by the engineer, and any such stakes or marks wilfully or carelessly destroyed or removed by tlie contractor or any of Ms workmen sliall be replaced at tlie contractor’s expense;” and

“The engineer shall have full supervision over tlie entire work, and liis decision as to the quality of both material and construction and the meaning of all drawings and specifications shall be final and conclusive. All orders and instructions to the contractor shall be given by the engineer;” and

“EugiNeer’s help. The contractor shall furnish such reasonable amount of help as the engineer may desire in laying out and measuring the work or inspecting material. ’ ’

“The engineer shall furnish monthly estimates of the work done, upon which partial payments to the contractor shall be based, and, in the absence of fraud or error, his decision as to the value and quantity of work or material shall be final and conclusive. ’ ’

During tlie construction of the improvement certain deductions were made from the estimates and vouchers furnished Connelly by Parkes to the extent of $2,551.74, which amount Parkes claimed was due him under the contract and should be deducted out of the' estimates furnished Connelly to pay men employed by Parkes to lay out and measure and inspect the work and materials. Connelly claimed that, under the contract, he was not indebted to Parkes for this amount, and that same should not have been deducted from the estimates of the amounts due him for his construction work under tlie contract. Such being the contention between Parkes and Connelly, the district instituted this action against them, setting out its contracts with Parkes and Connelly, and prayed that they be required to interplead for the above amount, tendering the sum into court, and asking that it be relieved from further liability.

The court found generally “the issues in favor of Parkes,” and specifically that the funds retained by the district from the estimates of the contractor, Connelly, in the hands of the district, to-wit: the sum of $2,132.26, should be paid to Parkes, which sum should he reduced by a certain item of cost adjudged against Parkes in the sum of $124.50, leaving a balance due Parkes of $2,007.76, for which it entered a decree in favor of Parkes, and dismissed the intervention of Connelly for want of equity, from which decree Connelly prosecutes this appeal.

No issue is raised as to the amount of the court’s decree. The appellant contends that, under his contract with the district, he is not liable for the sum claimed by the appellee. Appellee, on the other hand, contends that, under his contract with the district and under the contract of the appellant with the district, appellant is liable for the above sum, and that the decree of the court was correct in so holding.

1. The specifications for the work prepared by the appellee were made a part of the contract, and it is provided, among other things, that the decision of the engineer as to the meaning of all specifications shall be final. Under this provision his decision as to the number of employees necessary to assist him in laying out and measuring the work and inspecting the materials and the compensation therefor was final. This provision of the contract has reference wholly to any controversy that might arise between the district and the contractor as to the meaning of the specifications in the contract. It has no reference whatever to the interpretation of the provisions of the contract, or of the specifications as a part thereof, in determining any issué that might arise 'between the contractor and the engineer as to the individual and personal duties and liabilities of one to the other growing out of their respective contracts with the district. The specifications do not express the terms of any contract between the appellant and the appellee. They only enter into the contract between the appellant and the district, and, even in a controversy between the contractor and the district, the decision of the engineer interpreting: the rights of the parties under the contract . would not be decisive of those rights. This is made plain in Drainage District No. 5 v. Kochtitzky, 146 Ark. 494-503, where we said: “The rights of the parties were fixed by the contract, and not by the decision of the engineer. Williams v. Carden’s Bottom Levee Dist., 100 Ark. 166. There is a distinction between the power of the engineer with respect to interpretation of the plans and specifications and as to the contract itself. The former is supposed to be the work of the engineer, and it is proper, in case of dispute, to refer such interpretation to him, but, as before stated, the rights of the parties are- fixed by the contract itself, and it is a question for the courts, and not for the engineer, to determine what those rights are * * *.” ’

2. The appellee next contends that the laying out and measuring of the work as it progressed and in inspecting materials before their use constituted no part of the ‘ ‘ engineering work of the district; that all work done by the engineer in running levels, laying out of work and1 driving stakes and indicating on each the amount of excavation or fill, measuring up the work and inspecting the materials before use, was solely for the benefit of the contractor.” This contention is contrary to the contract itself of the appellee with the district and also of the con-' tract of the appellant with the district and to the decided preponderance of the evidence alkmde. • The specifications expressly provided that the work “shall be staked or marked out by the engineer.” He has supervision over the entire work, and his decision as to quality of both material and construction and the meaning of all drawings and specifications shall be final and conclusive. He is to make monthly estimates of the work done, and his decision as to the value and quantity of the work and material is final and conclusive. “He is to judge of the value and quantity of work and material, and his decision as to these is final,” and there is the provision which is the foundation of the appellee’s claim, to-wit: “ENGINEER’S help. The contractor shall furnish such reasonable amount of help as the engineer may desire in laying out and measuring the work or inspecting material.”

These provisions show clearly that the work which appellee is seeking, by his intervention, to have the appellant pay for comes under the terms “engineering work of the district.” Appellee, in his contract with the district, expressly agreed “to pay all the expense of doing the same,” that is, all expense of doing the engineering work.

The testimony of the engineers introduced by the respective parties, except that of the appellee and one or two others, is practically all to the effect that the running of levels, setting slope stakes and the inspecting of materials is ‘ ‘ engineering work. ’ ’

3. The appellee next contends that, regardless of the written contract or custom, the appellant is bound to pay appellee for the help which he employed in laying out and measuring the work and inspecting materials, because, after the contract was entered into and when the appellee began to lay out the work, the appellant did not have men on the ground to aid appellee in carrying out the above provision, and the appellant thereupon entered into a verbal agreement wUh Connelly in pursuance of the contract to furnish “engineering help,” to employ such help, and that appellant would pay for the same. The testimony of the appellee was to this effect, and that he employed such help at approximately $125 a month, which was a reasonable charge for such help, and that the commissioners of the district had deducted such amount from the estimates of the work of the contractor, and had retained the same also from the appellee, of which amount he was claiming the sum of’$2,132.11. He testified that laborers were furnished under this provision of the contract from August, 1919, to April, 1921. He introduced a letter from the appellant of February 10, 1920, in which appellant stated that he had .sublet ■certain portions of the work to Henry Brothers, and that they had agreed to do the same according to plans and specifications, and would have to give the “engineer’s help” provided for in appellant’s contract with the district, and that appellant would cheerfully take care of such help in the portions of the work which he had reserved' for himself to do. In this letter he asked that the appellee notify the engineer in charge of the work as to who should stand the engineering help. The appel-lee responded to this letter, telling the appellant that the provisions as to “ engineer’s help ’ ’ in his contract hound the appellant to furnish such help, and that the appellee would hold the appellant responsible for such help.

E. N. Jenkins, the engineer in charge of the work, E. Hale, the supervising engineer, Henry Sellers, a resident engineer, and M. Nicholson, who were in the employ of the appellee, testified substantially to the effect that, in conversation with the appellant concerning the question of who should pay for the “engineer’s help” provided for in the specifications of the contract, appellant contended that, inasmuch as he had sublet certain portions of the work, and that the subcontractors had contracted to do the same according to the specifications, they were liable for such help; that appellant himself did not contend that he was not liable for such help on work which he himself reserved. Their testimony, in short, was to the effect that the appellant conceded that, under the terms of the specifications and hisi contract with the district, he was liable for “engineer’s help.”

Appellant testified, in his own behalf, that he began work about the first of January, 1920, under his contract with the district. He denied categorically that he had the conversations with the appellee and with the engineers mentioned above, who had testified to the effect that appellant had conceded liability for “engineer’s help,” as claimed by appellee, under the provisions of the specifications in appellant’s contract with the district. He stated that he had never authorized the appellee or any of his men to employ any engineers or engineering help and carry them at appellant’s expense on appellee’s payroll; that appellee had presented him with a statement as early as March 18, 1920, charging the appellant "with such work, amounting to $486.99, which amount was deducted from the amount due appellant on his estimate furnished by the appellee for the work performed by the appellant. He stated that he never agreed with appellee to pay for help, hut that he did agree that he would give appellee a man, whenever appellee wanted him, out of appellant’s crew, and wrote appellee to that effect, and protested against all charges made by the appellee for any other engineer’s help from the beginning. The effect of his testimony was that he had complied with his contract and furnished such “engineer’s help” as the specifications called for, and that he denied liability for such help as the appellee was charging him with, and protested against deductions from appellant’s estimates to pay for such help from the very beginning, as such claims were made. He stated that he had been in a controversy with the appellee and with appellant’s subcontractors ; that he had attempted to have a conference with every one in connection with the matter, and had. had a conference at one time with them with a view of settling without litigation. He concludes his testimony by saying that “the matter had been a subject of trouble ever since witness had been working on the road.” The first deduction was made March 18,. 1920, and witness immediately consulted an .attorney; that “all amounts which have been discussed were deducted and held back by the district from the money witness had earned for work done for the district. The appellant, in corroboration of his testimony, introduced correspondence which his attorney had with the appellee five days after the first deduction was made for pay of “engineer ’s help” from the estimate of the amount due the appellant for the work lie had performed. In this letter it was stated that appellant protested against such deduction, and suggested that the matter be settled amicably' between them before presenting the matter to the board, and that, if appellee did not agree to this, a meeting be held between appellee, appellant, and a representative of the district, in order to settle the construction of the specification in regard to “engineer’s help.”

J. T. Bullock, the chairman of the board of commissioners of the district, testified that, pretty soon after the board began issuing vouchers to the contractors and engineer, appellant complained to the board and contended that the appellee was not entitled to deduct from the sums due appellant pay for those assisting him in doing the engineering work from the commencement of the project. He objected to paying those who had been assisting the engineer in measuring and laying out the right-of-way; When the first estimate was rendered in which the appel-lee asked that deduction be made for such help, appellant objected to it, and the board asked appellant and appellee to adjust the matter in some way and compromise it if they could. The board thought it was settled at one time, if the subcontractors had not kicked out of the harness. It was never fully adjusted. This witness, as chairman of the board, wrote letters to the Highway Commissioner and the attorney for the Highway Commission, asking their advice and assistance in having the controversy adjusted between the appellee and the appellant and the subcontractors with reference to the interpretation of the provision in regard to “engineer’s help” in the specifications. This correspondence was in the record.

Without discussing this feature of the case further in detail, we are convinced that a preponderance of the evidence proves that the appellant never had entered into a verbal contract with the appellee by which he bound himself to pay for engineering help such as is claimed by the appellee, independent of his written contract and the provision in the specifications concerning’ the same. The preponderance of the evidence shows that the appellant, from the beginning, was protesting that he was not 'liable for such pay. It occurs to us that a preponderance of the testimony tends to prove that there was a controversy between the appellant and the appellee, from the time -when the first estimate was made of Ms work in which deductions were made for “engineer’s help” by the appellee, as to the interpretation of the provision concerning same in the specifications. We therefore conclude that the appellant is not. bound by any verbal contract, or by any conduct after the first estimate was made, that would estop him from resisting the payment of the claim which the appellee here makes against him.

4. This brings ns to the question of what is the proper interpretation to be placed upon the paragraph “engineer’s help” in the specifications, which was made a part of the contract of appellant with the district. In determining what the parties meant by the use of the language in this paragraph, certain familiar canons of construction must be applied. It must be remembered that this was a contract with the district and not with the appellee. The appellee, in his contract with the district, had bound himself, as we have seen, to do all the engineering work connected with the improvement and to pay the expenses of all help of whatever kind or character needed in doing the complete engineering work. It is not reasonable to suppose that, in view of this contract between the district and the appellee, in which the district had provided liberal compensation to the appel-lee for all of the engineering work, that the district intended, in its contract with the appellant as the contractor, to require him to pay for any work that should be properly and legitimately classed as engineering work. In construing the contract, we should place ourselves in the situation of the parties in order to arrive at t'heir intention in,making it. SeeWhite Construction Co v. Arkansas-Louisiana Highway Imp. Dist., ante, p. 452; Wood v. Kelsey, 90 Ark. 272, and cases there cited.

In the language of the above paragraph, the words “engineer’s help” is a technical term, as shown by the testimony, and one well understood by those accustomed to such conteacts as that under review. The parties must be held to have used the language of this paragraph, in the light of the custom that obtained among engineers, contractors, and builders, showing the meaning of snch language when applied to building contracts. Walsch v. Frank, 19 Ark. 270-277; Western Insurance Co. v. Altheimer, 58 Ark. 565-574; McCarthy v. McArthur, 69 Ark. 315-318; Arkadelphia Lumber Co. v. Henderson, 84 Ark. 382-389; see also 2 Elliott on Contracts, § 1797.

A decided preponderance of the testimony of the engineers who were introduced as expert witnesses in the case was to the effect that it was not usual or customary for an engineer, under the above clause, or other clauses in different specifications substantially the same, to employ men by the month to do such work at the expense of the contractor and to deduct it from the contractor’s estimates. The usual practice as to a reasonable amount of help to be furnished by the contractor to the engineer, under such a clause, is to send one or more laborers to make or carry stakes or hold the end cf the surveyor’s chain, who are given or loaned to the engineer by the contractor. The contractor pays for these men, and they are on his payroll. They are loaned, as a rule, ordinarily for less than a day. Such being the correct interpretation of the language used in the above paragraph of the specifications, as shown by a decided preponderance of the evidence, it follows that the appellant was not liable, under" his contract, for such charges as those made by the appellee, and which he sets up in his interplea herein. The chancery court therefore erred in dismissing the appellant’s interplea and in rendering a decree in favor of the appellee for the amount in controversy. The decree is reversed, and the cause is remanded with directions to enter a decree in favor of the appellant for the amount of the funds held by the district.