author: Johnson, C. J., Mehaffy, J.,

text:
    State ex rel. Attorney General v. Chicago Mill & Lumber Corporation.
    4-2988
    Opinion delivered March 27, 1933.

      Hal L. Norwood, Attorney General, and John M. Rose, for appellant.

      W. R. Satterfield and Daggett & Daggett, for appellee.
   Johnson, C. J.,

(after stating the facts). As indicated in the statement of facts, this is the second appeal in this case. By referring to the former opinion, it will he found that the State brought suit against the Chicago Mill & Lumber Corporation and the Paepcke Corporation, two foreign corporations, to recover hack taxes alleged to be due for the years 1927 to 1930, both inclusive, by reason of gross undervaluation in the assessments of the machinery and manufactured lumber at the mills of said corporation at West Helena and Blytheville, Arkansas. This court held that there was no personal liability of the Paepcke Corporation and that a recovery, in any event, could only he had for property now situated in the State of Arkansas which had passed into the hands of the Chicago Mill & Lumber Corporation. The case was reversed and remanded for further proceedings in accordance with the principles of equity and not inconsistent with the opinion.

In this suit act 281 of 1931 was not argued by counsel on either side, and ivas not considered by this court.

After the rendition of the opinion of this court on the former appeal and on September 26, 1932, this court determined the case of State ex rel. Attorney General v. Anderson-Tully Company, wherein act 281 of 1931 was brought to the attention of this court. In the AndersonTully case, supra, which was an overdue tax proceeding on account of a gross undervaluation assessment on real estate, this court specifically held that a recovery could not be had by the State except for actual fraud of the taxpayer in making his assessment. The court held:

‘ ‘ This brings us to a consideration of the question as to whether the complaint charged actual fraud of the taxpayer and whether the proviso in § 1 of the act, ‘ That failure to assess taxes as required by law shall be prima facie evidence of fraud,’ is sufficient to put appellee on its proof and therefore to answer the complaint. We answer both questions in the negative, as did the learned trial court. The complaint charged no actual fraud of the taxpayer. It did charge that its land was greatly underassessed,” etc.

It is insisted that <the Anderson-Tully case, supra, is not authority in the instant case, because it is said that the property here in controversy is personal property, whereas the property involved in the Anderson-Tully case was real estate. It is difficult to see just why that the rule should be different in reference to the assessment of personal property and the assessment of real property. Under the statutes of this State the owner of real property is required to list his property for taxation. The same is true with reference to his personal property. The tax assessor is not bound by any value placed upon either real or personal property by the owner.

The court has reached the conclusion that act 281 of 1931 is conclusive of all the issues now presented, and for this reason no other question will be discussed or decided in the case. Prior to this enactment a showing by the State that the property of the taxpayer had been grossly under-assessed was sufficient to allow a recovery in behalf of the State. Section 1 of act 281 of 1931 reads as follows:

‘ ‘ That, after the assessment and full payment of any general property, privilege or excise tax, no proceedings shall thereafter be brought or maintained for the reassessment of the value on which such tax is based, except for actual fraud of the taxpayer, provided that failure to assess taxes as required by law shall be prima facie evidence of fraud.”

Evidently, it was the purpose of the Legislature to change the law in reference to, and to regulate the collection of, overdue taxes in this State.

In the case of White River Lumber Co. v. State, 175 Ark. 956, 2 S. W. (2d) 25, this court used the following language:

“We are of the opinion that the statute (collection of overdue taxes) was intended to give the State the right to recover back taxes where there had been a gross undervaluation of the property in the hands of the corporation,” etc.

Previous to the White River Lumber Company case, supra, this court had held in State v. K. C. & Memphis Railway & Bridge Co., 117 Ark. 606, 174 S. W. 248, as follows:

“It was evident that the statute was intended to afford a complete remedy for the collection of back taxes,” etc.

The White River Lumber Company case, cited supra, was appealed to the Supreme Court of the United States, and is reported in 279 U. S. 692, 49 S. Ct. 457, where it was held that the overdue tax act did not violate the equal protection clause of the Fourteenth Amendment to the Constitution of the United States.

It is perfectly evident that the Legislature had in mind the White River Lumber Company case and all other decisions of this court in reference to the collection of overdue taxes when it passed act 281 of 1931.

If the Legislature said what it meant and meant what it said in § 1 of act 281 of 1931, “That, after the assessment and full payment of any general property, privilege or excise tax, no proceedings shall thereafter be brought or maintained for the reassessment of the value on which said tax is based, except for actual fraud of the taxpayer,” then it must be perfectly evident that the State cannot recover where the property owner has made an assessment of property with the county assessor of the county, and has paid the taxes regularly assessed thereon, unless it can be shown that actual fraud has been practiced by the taxpayer in making the underassessment. The only allegation in the complaint in this case is that the property was grossly underassessed, and no facts are alleged which would show or amount to actual fraud.

The proviso “that failure to assess tax as required by law shall be prima facie evidence of fraud” does not save the situation here presented. This proviso means exactly what it says. “Failure to assess taxes as required by law” does not mean that an underassessment has been made. It is perfectly natural for the property owner to appraise the value of his property for taxation at a lower sum than the county assessor would do. It is perfectly natural for people to have different opinions about the value of property. We think that this proviso means that, if the party fails to assess any article of property with the assessors, in so far as this article of property is concerned, such assessment would be fraudulent, but where an assessment is made and the complaint is about, and only about, the difference in value of the property, this would not amount to fraud.

This court took a definite and deliberate position in reference to the prosecution of overdue tax suits under act 281 of 1931 in the Anderson-Tully case, cited supra, wherein real estate assessments were involved, and we are of the opinion that all that was said by the court in the Anderson-Tuliy case in reference to real estate assessments should have full application in this case, and that the issues determined in the Anderson-Tully case settled and determine all issues presented in this case.'

It is the opinion of the court that the complaint filed herein does not state facts sufficient to constitute a cause of action against the appellee, Chicago Mill & Lumber Corporation, and that the chancellor was correct in sustaining a demurrer thereto.

Let the judgment be affirmed.

Humphreys and Mehaffy, JJ., dissent.

Mehaffy, J.,

(dissenting). I do not agree with the majority in holding that the complaint filed does not state facts sufficient to constitute a cause of action, and in holding that the demurrer should be sustained.

The majority opinion cites State ex rel. Atty. General v. Anderson Tully Co., 168 Ark. 170, 53 S. W. (2d) 17. The writer filed a dissenting opinion in the AndersonTully case which is reported on page 175 of 168 Ark. I shall not repeat what was said there with reference to act 281 of the Acts of 1931 being retroactive. Reference is made to the dissenting opinion there for a discussion of that question.

The complaint states: “All of the property set out in the original complaint, which includes the machinery and stocks of lumber therein mentioned, in both Mississippi and Phillips counties, and on which taxes are sought to be recovered herein, is now and has been throughout the years 1927 to 1930, inclusive, and throughout the taxable periods for said years, in existence in the State of Arkansas. The percentage of value at which all property is required to be assessed for taxation in Mississippi and Phillips counties, and throughout the State of Arkansas, is, and has been throughout the period covered by the complaint, 50 per cent, of the true value thereof, said basis of assessment having been prescribed for each of said years involved herein by the Arkansas Tax Commission under the authority of the Constitution and .statutes of the State of Arkansas.”

It was further charged in the complaint that the amount set out in the original complaint constituted an assessment at only nine per cent, on the Phillips County property, and an assessment of only five per cent, on the Mississippi County property; that this constituted a gross underassessment of appellees’ property. It was •further stated that the lumber and machinery are extremely difficult to value on account of the large amount thereof, and that the fact that the taxing officers have not had access to the records relating thereto, said officials have been compelled to rely, and had actually relied in making, the assessments aforesaid, on the representations of defendants as to the value of said properties. Said representations have not been fairly made to said taxing authorities.

There were other allegations in the complaint as to the underassessment, and appellees filed motion for the court to require the plaintiff to make the complaint more definite and certain in certain particulars. The motion consisted of twenty typewritten pages and forty-seven separate paragraphs. Some of the paragraphs asked that plaintiff be required to state the names of the witnesses that filed the list for taxation, others to describe in particular the kinds of lumber and kinds of machinery, but some of the paragraphs asked that they be required to state the nature of the representations alleged to have been made by the corporate officials.

In response to this motion an amendment to the complaint was filed. One paragraph of the amendment states that both the assessments actually made, and the amounts at which the property should have been assessed, being expressly stated for each of the years 1927-1930, and for the property at West Helena and Blytheville separately, and this paragraph also stated that under the Arkansas statutes, lumber, manufactured articles, and machinery are assessed jointly under the head of “machinery and manufactured articles.”

The amendment to the complaint further stated that the nature of the representations made by the corporate officials and agents of the defendant corporations for the years 1927-1930 was delivering a sworn statement of the value of defendant’s machinery and lumber to the tax assessors for each of said years, which sworn statement showed the value of said lumber and machinery for said respective years, to be the figures at which said property was actually assessed for said years respectively, and which are specifically set out in the plaintiff’s original complaint. Said representations of value were so grossly inadequate as to shock the conscience and constitute a fraud on the State, the counties, and school districts in which said property is located; that other similar property in the counties named was assessed at 50 per cent, of its true value, and the assessments on defendant’s property was approximately 5 per cent, in Mississippi County and 9 per cent, in Phillips County.

We have copied enough of the complaint, we think, to show that there were sufficient facts stated to constitute a cause of action when the sufficiency of the complaint is tested by general demurrer. The fact that appellees’ property was assessed at from 5 per cent, to 9 per cent, of its value, and all other property in the two counties assessed at 50 per cent, of its value, is not a conclusion of law, but a statement of fact. If this is true, then the affidavit furnished the taxing authorities for the purpose of assessment was a statement of fact and not a conclusion of law. It is also stated as a fact that the affidavit and assessment constituted an actual fraud. These statements of fact may or may not be true. That could be determined however, only by the evidence.

We have frequently held that, in testing the sufficiency of a pleading by general demurrer, every reasonable intendment should be indulged to support it. Contrary to the common-law rule, under our Code every reasonable intendment and presumption is to be,made in favor of a pleading, and a complaint will not be set aside on demurrer unless it be so fatally defective that, taking all the facts to be admitted, the court can say that they furnish no cause of action whatever. Wright v. Lake, 178 Ark. 1184, 13 S. W. (2d) 826; Ellis v. First National Bank, 163 Ark. 471, 260 S. W. 714. It should be held in mind that allegations of fact in a complaint must be accepted as true on demurrer. Parker v. Sims, 185 Ark. 1111, 51 S. W. (2d) 517. Considering the statement of facts in the complaint as true and indulging every reasonable intendment as we must, we think the complaint states a cause of action.

“As in other cases, it is not sufficient to plead mere conclusions of law, but the facts constituting the fraud must be pleaded subject of course to the usual limitation that the evidence should not be set out; and if the facts are so set out that the adverse party is fairly apprised of what he is to meet, it is sufficient.” 10 Standard Enc. of Proc., 53.
“If fraud has -been alleged with sufficient particularity, we do not doubt that, whatever may be its final outcome, the case as made by the declaration discloses justiciable and actionable fraud. On the alleged insufficiency of the declaration in point of particularity, we have but little to say. While the allegations of fraud in some respects are not as formal as may be desirable, we regard them as sufficient. It is true that the mere use of adjectives importing fraud or deceit cannot be permitted to supply the place of the essential facts constituting the fraud or deceit relied on. But an impracticable standard or particularity is no more required in allegations of fraud than in an indictment. Mere matter of evidence is not required to be stated. In the amended declaration all the facts constituting the fraud are, though somewhat informally, plainly alleged, and the defendant is fully advised of the case it is called on to meet.” Rogers v. Virginia-Carolina Chemical Co., 149 Fed. 1.

It is not necessary under our Code to plead the probative or evidential facts. It is sufficient if ultimate facts are alleged, which show the falsity of the representation.

The only question for the consideration and determination by the court is whether the facts alleged, constitute a cause of action, and it is immaterial that the cause of action may be defectively stated if there are allegations of fact which constitute fraud. A statement of fact supported by the affidavit of the party that the value of the property is a certain amount, and a statement of fact that this is untrue, I think, is a sufficient statement to apprise the adverse party of what he. is called on to meet. I therefore think the case should be reversed and remanded for trial.

I am authorized to state that Mr. Justice Humphreys agrees with me in the views herein stated.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    Leonard v. Henry.
    4-2999
    Opinion delivered March 27, 1933.

      Buzbee, Pugh & Harrison, for petitioners.

      R. W. Wilson, for respondent.
   Smith, J.

Petitioner Leonard, who is the treasurer of the State of Arkansas, has filed in this court a petition for a writ of prohibition against Patrick Henry, as judge of the Bradley Circuit Court, to prevent that court from further proceeding with the trial of a cause there pending in which petitioner is a party in his official capacity as State Treasurer.

The petition alleges that on December 5, 1931, the State, on the relation of its Attorney General, filed suit in the Bradley Circuit Court against John C. Lee, as sheriff and collector of Bradley County, and the sureties on his official bond as collector of taxes, which alleged that Lee, as said collector, had collected, since January 1, 1931, moneys belonging to the State of Arkansas in the sum of $42,450.31, which the said Lee had failed and refused to pay into the State Treasury as required by law, but had unlawfully converted the same to his own use. It was. alleged that, by reason of his failure to account for and pay over said moneys Lee has forfeited his right to commissions for making the collections, and had incurred the statutory penalty. Judgment was prayed against Lee and his official sureties.

On June 11, 1932, an amended complaint was filed containing allegations similar to those of the original complaint and, in addition, alleging that Boy V. Leonard was the duly elected, qualified and acting Treasurer of the State of Arkansas, and had given bond as such in the penal sum of $200,000, with the Union Indemnity Company as surety. That the said Lee, as collector, in attempting to make settlement of his tax collections with Leonard, as treasurer, had given checks on certain banks, which proved to be worthless, but Leonard, as treasurer, had accepted such checks as cash, and had issued to Lee a receipt showing full settlement; that Lee took the receipt, so issued by Leonard as treasurer, and presented the same to the Auditor of State, and, upon the presentation and delivery thereof to the auditor, had obtained from that officer a quietus, thus making it appear that the said Lee had paid all of his indebtedness to the State of Arkansas, whereas the State has not been paid the moneys due lay Lee as collector. The amended complaint prayed judgment against the treasurer and the surety on his official bond, as well as against Lee and the sureties on his official bond.

Summons was served on Leonard and his surety in Pulaski County.

On January 2, 1933, an amendment to the complaint was filed, which alleged that at various times and dates between April 1st and September 10,1931, the defendant, Lee, as collector of Bradley County, collected the sum of $26,031.95 in taxes from the 1930 assessment of taxes, and paid the same to Leonard, as State Treasurer, by checks on various banks, which were duly collected, and that on sundry dates between March 4, 1931, and September 10, 1931, Lee, as collector of Bradley County, collected the sum of $35,150.38 belonging to the State, which was paid to Leonard, as State Treasurer, by checks which were duly honored. It was alleged that certain automobile license taxes were also collected by Lee and paid to Leonard, as treasurer.

It was further alleged that Lee, as collector, paid to Leonard, as treasurer, the sum of $66,182.33 by moneys collected as taxes for the year 1931 for the 1930 assessment thereof, and that at the request of Lee, and with the consent of Leonard, both acting in their official capacity, said money was unlawfully diverted from the purpose for which the taxes had been collected, and was used in making good certain indebtedness of Lee to the treasurer for 1930, and “said sum of money was paid to the credit of a fund in discharging an existing liability, against the defendant, John C. Lee, to the State,” and was unlawfully diverted at the request of Lee and so misapplied with the consent of Leonard, and these actions constituted them joint tort-feasors and made them and their bondsmen jointly and severally liable to the State of Arkansas in the sums prayed for in the original complaint.

The defendant, Leonard, filed a motion to dismiss the suit against him and his surety, and, as grounds therefor, alleged:

“Roy Y. Leonard on oath states: That he is a defendant in the above-entitled suit. That he is Treasurer of the State of Arkansas. That the suit is brought to recover from him on account of an official act done or omitted to be done. That no part of the said cause of action sued on arose in Bradley County. That he does not reside in Bradley County, but resides in Pulaski County. That he was not served with summons in Bradley County, but was served in Pulaski County and objects to the suit ag’ainst him being tried in Bradley County.”

For the reasons stated, it was alleged that the Bradley Circuit Court was without jurisdiction to proceed against Leonard as State Treasurer and the surety on his official bond.

The motion to dismiss was overruled, the court holding that it had .jurisdiction of the .cause of action alleged against the State Treasurer and his surety, whereupon, proceedings were filed in this court for a writ of prohibition.

The writ prayed for must be granted, for the reason that § 1175, Crawford & Moses’ Digest, fixes the venue of such actions. This section reads as follows: “All actions for debts due the State of Arkansas, and all actions in favor of any State officer, State board or commissioner, in their official capacity, and all actions which are authorized by law to be brought in the name of the State, and all actions against such board or commissioner or State officer, for or on account of any official act done or omitted to be done, shall be brought and prosecuted in the county where the defendant resides.”

The concluding phrase of this section, “in the county where the defendant resides,” refers to the county of the officer’s official residence, as the section relates to suits against an officer in his official capacity, and the county of his residence is therefore the place in which he performs the functions of his office. In the case of the State Treasurer, the county in which that officer resides is, of course, Pulaski County, for it is there that he maintains his office and keeps the record thereof.

The reason for the statute is, no doubt, that the Legislature was unwilling to have the records of the officers and boards referred to in § 1175, carried out over the State and away from the place where they should be permanently kept. However, we aré not required to determine the legislative purpose; it suffices to know the legislative fiat.

This § 1175 was construed in the case of Edwards v. Jackson, 176 Ark. 107, 2 S. W. (2d) 44, which was an action against the sheriff of Montgomery County and the sureties on his bond as such, which was brought in the Polk Circuit Court. It was alleged by the plaintiff in that suit that her husband had been wrongfully killed by the sheriff’s posse, certain members thereof being residents of Polk County, who were served with process in that county. It was there insisted that, as the Polk County residents had been properly sued and served with process in that county, the rigid existed to sue the sheriff as a joint tort-feasor in that county. We held, however, that an action upon the official bond of a public officer had been localized by § 1175, Crawford & Moses’ Digest, and could be brought only in the county in which the officer resided, and the suit against the sheriff and his sureties was dismissed upon demurrer, for the reason that the Polk Circuit Court was without jurisdiction of. the cause of action, notwithstanding the allegation that all of the defendants were joint tort-feasors, two of whom had been properly sued in Polk County. In so holding, we said:

“The language and meaning of the statute on the questions involved herein is so plain as to admit of.no construction. It was within the competency of the Legislature to enact it, is not in conflict with the Constitution of the State, and does not deprive appellants of any rights guaranteed by the Constitution of the United States.
“The venue of the action, as shown by the allegations of the complaint, was in Montgomery County, where the cause arose, no part of it having arisen in Polk County, where the suit was brought, and the demurrer was properly sustained. Bledsoe v. Pierce Williams Co., 147 Ark. 51, 226 S. W. 532; Reed v. Williams, 163 Ark. 520, 260 S. W. 438.”

If it be objected that our holding makes it necessary to sue the collector and his sureties in Bradley County, and the treasurer and his surety in Pulaski County, although it is alleged that they are joint tort-feasors, it may be answered that the statute so requires, and we have held that “it was within the competency of the Legislature to enact it. ”

The writ of prohibition will therefore be granted as prayed, restraining the Bradley Circuit Court from further proceeding in the suit against the State Treasurer and his surety in the Bradley Circuit Court.


text:
    Brooks v. Pullen.
    4-2970
    Opinion delivered March 27, 1933.

      John Mayes and C. D. Atkinson, for appellant.

      George A. Hurst and O. E. Williams, for appellee.
   Smith, J.

Appellants, Brooks and Dodd, filed, in the circuit court of Washington County, a petition for a writ of mandamus, which contained the following allegations: Petitioners are residents and qualified electors of Washington County, and were candidates, in the general election held in said county on November 8, 1932, for the offices of circuit clerk and sheriff of Washington County, respectively. Certain electors of the county, made parties defendant, served at said election as election judges in the wards of the city of Springdale and in certain townships of the county, and, by virtue of their service as such judges of election, have in their possession one copy of the tally sheets and poll books for their respective voting precincts. That § 3833, Crawford & Moses’ Digest, which is a portion of the chapter on Elections, provides that one of the certificates, tally sheets and poll books shall be retained by the judges free for the inspection of all persons. That these petitioners, individually and through their attorneys, agents and representatives, have made demand for an inspection of the certificates, tally sheets and poll books in the various voting precincts thereinbefore named of the election judges in their respective precincts, and that such election judges have refused to allow an inspection of such records, in violation of the laws of the State of Arkansas, and with the corrupt intent and purpose of fraudulently defeating these plaintiffs in their civil rights.

That the county election commissioners have certified their opponents as having been elected to the offices for which petitioners were candidates, and “these plaintiffs are preparing contests of said election, and, in order to comply with the laAV of the State of Arkansas in preparing their contests, it is necessary for them to inspect the certificates, tally sheets and poll books of the respective Amting precincts hereinbefore set forth.” That, in preparing their notice of contest of said election, petitioners are required to set forth in said notice the names of the persons who voted in said precincts Avhose right to vote they challenge, together Avith their objections to the qualifications of such voters, and, in order to do this, it is necessary that they examine the poll books in said voting precincts and obtain therefrom a list of the names of such persons voting in such precincts. That four hundred persons voted in said precincts whose right to vote they challenge.

Petitioners further alleged that “they have exhausted every means at their command and every other remedy available to them for obtaining an examination of the poll books and other records in the possession of the election judges in said precincts.”

It was alleged, in an amended petition, that, since filing the original petition, certain of the judges of election, made parties defendant originally, had permitted an inspection of the poll books in their possession, and the petition was dismissed as to such judges.

Upon these allegations, petitioners prayed that the judges who still refused petitioners the right to examine the poll books and tally sheets in their possession “be notified of this proceeding, and be required to appear and show cause why they have refused to perform their official duty and obey the laws of the State of Arkansas in relation to the matter hereinbefore set. forth, and that upon such hearing a writ of mandamus be issued commanding and compelling the said defendants to perform their official duty and allow these plaintiffs, their agents, attorneys and representatives, to inspect said records, and make such copies as they may see fit.”

A demurrer was filed to the petition, which was sustained by the court, and, petitioners electing to stand on their petition, the same was dismissed, and this appeal is from that order and judgment of the court.

For the affirmance of the judgment of the court below it is insisted that the portion of § 3833, Crawford & Moses’ Digest, quoted in the petition, is not mandatory, and many cases are cited to the effect that mandamus will not issue to control the discretion of an officer, election or otherwise, and that such an officer will not be required by mandamus to perform an act not required of him by law.

Section 7020, Crawford & Moses’ Digest, confers upon circuit courts the power to issue writs of mandamus to the courts of probate, county courts, justices of the peace, and all other inferior officers in their respective circuits. This power has been exercised in many cases found in our reports.

Section 7021, Crawford & Moses’ Digest, defines the writ of mandamus as “an order of a court of competent and original jurisdiction commanding an executive or ministerial officer to perform an act, or omit to do an act, the performance or omission of which is enjoined by law, and is granted on the motion of the party aggrieved, or of the State, when the public interest is affected. ’ ’

Election judges are officers within the meaning of these statutes and have certain duties to perform which are defined by law. By § 3832, Crawford & Moses ’ Digest, they are required, after having held the election, to count the ballots, and to prepare and sign in duplicate a certificate showing the number of votes given for each person, and the office for which such votes were given, and to make a certificate showing these facts. This section further provides that, “after making such certificates, the judges, before they disperse, shall put under cover one of said tally sheets, certificates and poll books and seal the same, and direct it to the board of county election commissioners. ’ ’

By § 3833, Crawford & Moses’ Digest, it is provided that the said certificate and the ballots, sealed in separate packages, shall be conveyed by one of the judges, to be determined by lot, if they cannot otherwise agree, to the county election commissioners, and that “the other certificates, tally sheets and poll books shall be retained by the judges, free for the inspection of all persons”; and further: “It shall be the duty of the judges of election of the several precincts, after the ballots shall have been inspected and counted, to securely envelope all such ballots and send same, together with the certificate, tally sheets and poll books as aforesaid, to the county election commissioners, to be kept as hereinafter provided.”

The present proceeding is not therefore one to establish a right, but is a proceeding, under authority of law, clearly given to all persons to inspect the certificate, tally sheets and poll books which the law requires the judges of election to keep for that purpose.

The petition for mandamus makes clear the purpose of petitioners in instituting this proceeding, which is to comply with the requirements of § 3850, Crawford & Moses’ Digest, in instituting contests for the offices for which petitioners were candidates. This section defines the jurisdiction of the county court to hear and determine contests for the offices of circuit clerk and sheriff, and certain other offices, and requires that “if any objections be made to the qualifications of voters, the names of such voters, with the objections, shall be stated in the notice (of contests).” An examination and inspection of the poll books is essential to comply with this requirement.

Petitioners are seeking to compel the election officers —the judges of the election — to perform a duty imposed by law, in the performance of which the officers have no discretion, to-wit, to keep the tally sheets and poll books, “free for the inspection of all persons.” Petitioners show a substantial prejudice to themselves as candidates for public office if that right is denied them. We therefore construe the provisions of the statute as being mandatory.

The writ of mandamus should therefore have been awarded as prayed, and the judgment of the court below will be reversed and the cause remanded, with directions to make such orders as may be necessary to enforce the legal rights which petitioners allege and seek to inforce.

Humphreys, J., dissents.


author: Humphreys, J.

text:
    National Surety Company v. State ex rel. Chamberlin.
    4-2940
    Opinion delivered March 27, 1933.

      Barber & Henry, for appellant.

      Roy D. Campbell and Horace, Chamberlin, for appellee.
   Humphreys, J.

Appellee brought suit against appellant in the circuit court of Pulaski County, Third Division, to recover a law fee of $1,010 and interest due him from the Equitable Casualty & Surety Company, a foreign corporation, which was authorized to do business in the State of Arkansas, alleging that appellant signed a qualifying bond under the requirements of § 6134 of Crawford & Moses’ Digest, as amended by act No. 493 of the Acts of 1921, when the Equitable Casualty & Surety Company of New York entered this State for the purpose of conducting a fidelity and insurance business. Appellant filed an answer denying liability under the bond for an attorney’s fee.

A jury trial was waived, and the court heard the case sitting as a jury, which resulted in a judgment in favor of appellee against appellant on its bond in the sum of $1,117.80, from which is this appeal.

The sole question involved on this appeal is whether the qualifying bond executed to the State of Arkansas by appellant as surety for the Equitable Casualty & Surety Company was intended to cover obligations other than the fidelity and guaranty contracts issued by that company.

The qualifying bond, signed by appellant as surety for the Equitable Casualty & Surety Company, is as follows:

“Know All Men By These Presents:
“That we, Equitable Casualty & Surety Company, as principal, and the National Surety Company, a corporation organized under the laws of the State of New York, as surety, are held and firmly bound unto the State of Arkansas in the sum of fifty thousand and 00/100 ($50,000) dollars, lawful money of the United States, for the payment of which well and truly to be made, we hereby bind ourselves, our successors and assigns, jointly, severally. and firmly by these presents.
“The conditions of the above obligation are such that:
“Whereas: The said principal has filed its charter and statement and in other respects conformed to the requirements of the statutes for the transaction of a guaranty and surety insurance business in Arkansas; and
“Whereas: The said company proposes to enter this State (or continue in this State) for the purpose of transacting a guaranty and surety insurance business.
“Now therefore, if the said principal shall promptly pay, when due, all claims and obligations arising or accruing in this State by virtue of any bond or contract made by said principal, and all amounts due the State of Arkansas, by virtue of any statute, and in all respects comply with the laws of said State, then this obligation shall become void; otherwise to remain in full force and effect.
“Witness our hands and seals this 20th day of March, 1929.
“Equitable Casualty & Surety Company,
“By Robert Maloy,
(Seal). “Principal.
“Countersigned: National Surety Company,
“By A. Daniels,
‘ ‘ Surety.
“By E. B. Bloom,
“(Licensed Resident by S. S. Bowman, Agent for Arkansas.)
“(SEAL).”

It will be observed that the language of the bond is broader than the statute which the trial court read into it, but there is no conflict between the statute and the language used in the bond. Even if the statute were construed to cover liability upon the fidelity and guaranty contracts only, the language of the bond is broader, and covers ‘ ‘ all claims and obligations arising* or accruing in this State by virtue of any bond or contract made by said principal. ” It is unnecessary to decide the extent of the liability under the language of the statute when the language of the bond itself unambiguously binds appellant as surety to promptly pay all claims and obligations arising or accruing in this State by virtue of any contract made by the principal. There is no dispute in the testimony as to the employment under written contract of appellee, Chamberlin, by the Equitable Casualty & Surety Company, and that he performed legal services for it. in the amount sued for.

No error appearing, the judgment is affirmed.

Mr. Justice Butler disqualified and not participating.


text:
    Unionaid Life Insurance Company v. Harkey.
    4-2896
    Opinion delivered March 27, 1933.

      Duty & Duty and Ollie Collins, for appellant.

      Hogue & Burney, for appellee.
   Humphreys, J.

This suit was instituted by appellee against appellant in the circuit court of Pulaski County, Third Division, to recover a balance of $200 alleged to be due her on an insurance policy issued by appellant to her father, J. O. Keef, in which she was named the beneficiary. The policy was issued to her father on the 24th day of March, 1928, in lieu of an assessment policy he had carried in the Mutual Aid Union, the business of which had theretofore been taken over by appellant. After the new policy was issued to her father, he paid the annual premium thereon until the date of his death on the 24th day of December, 1930. The new policy was in the possession of appellant. It was alleged that, after the death of the insured, appellant’s agent called on appellee and represented that only $300 was due her on the policy, whereas $500 was due thereon, and that, on account of-the false representations made, she settled and released the appellant for a cash payment of $300.

An answer was filed denying that the settlement was procured through, misrepresentations of appellant’s agent and pleading the settlement and failure to tender back the amount paid her in bar of the action.

The cause was submitted to the jury upon the pleadings, testimony, and instructions of the court, which resulted in a verdict and consequent judgment for $200 in favor of appellee, from which is this appeal.

The policy on its face is an absolute undertaking or agreement to pay appellee $500 upon the death of her father, the insured, and the issue of whether the agent induced the settlement and release upon payment of $300 through misrepresentations was a disputed question of fact which was submitted to the jury under proper instructions. Appellant is bound by the finding of the .jury in that particular.

Appellant, however, contends for a reversal of the judgment because appellee failed to return the money-paid her before bringing this suit. In the instant case, the jury found that the release was obtained through the misrepresentations of appellant’s agent. The rule is that, where the release of an insurer’s liability on a policy is obtained by fraud, the beneficiary is not required, as a prerequisite to the maintenance of his suit, to tender the consideration paid for such release, but may sue for the balance of the obligation after deducting the amount paid for the release. Industrial Mutual Indemnity Co. v. Thompson, 83 Ark. 575, 104 S. W. 200.

No error appearing, the judgment is affirmed.


author: Kirby, J.,

text:
    Hooper v. State.
    Crim. 3826
    Opinion delivered March 27, 1933.

      Gordon B. Carlton, Feazel & Steel and Ben Shaver, for appellant.

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

(after stating the facts). It is insisted that the court erred in refusing to give requested instructions Nos. 2 and 6, in the admission of certain testimony, in the refusal to discharge a panel of thirty special jurors; and that the testimony is insufficient to support the verdict, there being no testimony corroborating that of the accomplices.

Instruction No. 2 was sufficiently covered by the general instructions given calling attention particularly to a certain kind of testimony admitted about the facts, of which it was claimed the defendant had knowledge before the consummation of the robbery. The general instructions being correct, no error was committed in refusing to give this instruction, conceding, not deciding, that it was a correct declaration of law.

Instruction No. 6, on the question of corroboration of the testimony of accomplices, was fully covered by instruction No. 4, given by the court, and no error was committed in not repeating the instruction as No. 6. Trial courts are not required to give requested instructions which are fully covered in the court’s charge. Smith v. State, 168 Ark. 253, 269 S. W. 995. See also Middleton v. State, 162 Ark. 535, 258 S. W. 995; McClaskey v. State, 168 Ark. 339, 270 S. W. 498; and Bodner v. State, 177 Ark. 424, 6 S. W. (2d) 550.

It is insisted that the court erred in refusing to dismiss a special panel of jurors selected by the sheriff on account of his prejudice against the defendant. The regular judge was disqualified in the Hooper cases, and Hon. Ben E. Isbell was selected to try them; and the court held that the sheriff was disqualified in serving jurors to try Hooper. Before this case was set for trial, and during the regular term, the trial judge ordered the sheriff to select 30 special jurors, and this case was subsequently set for trial, and it was to these 30 jurors that the defendant’s motion to dismiss the panel'went. Evidence was heard upon the motion which tended to show the sheriff’s prejudice against the defendant, and also that this case was not set for trial at the time he selected the special panel of jurors. It will not be necessary to discuss the proof adduced on the part of the State in order to show that no prejudice resulted to the defendant by the use of these special jurors, for the reason that on the trial the defendant did not exhaust his peremptory challenges, nor make any showing whatever that any particular person who served on the jury was prejudiced against him. The record reflects that he only exercised 16 challenges in all before the jury which tried the case was selected, and, not having exhausted his peremptory challenges, this constituted an implied admission that the .jurors were unobjectionable, and he has no right to complain here. York v. State, 91 Ark. 582, 121 S. W. 1070; Rogers v. State, 133 Ark. 85, 201 S. W. 845; Bowman v. State, 93 Ark. 168, 129 S. W. 80.

It is next insisted that the court erred in admitting the testimony of Mrs. Hulse and Mrs. Mills, her daughter, to the effect that Biddy Hooper, another accomplice, brought Hulse some of the money obtained in the bank robbery after the robbery was committed and the robbers had left the State, the purpose of the conspiracy having been consummated. Although it is true that the acts and declarations of a conspirator are inadmissible against his co-conspirator after the accomplishment of the purpose of the conspiracy, such is not the case here. The purpose was to rob the bank and procure the money, and necessarily distribute it among those participating in the enterprise, and the conspiracy cannot be said to have ended so long as the money procured in the robbery had not been divided among the robbers. Wiley v. State, 92 Ark. 586-592, 124 S. W. 249.

This defendant was charged with the crime of accessory after the fact of the robbery, and it was not consummated as long as the defendant concealed the crime and protected the principals. In State v. Gauther, 231 Pac. (Ore.) 141, the Supreme Court of Oregon said: “The acts and conduct of one accomplice, during the pendency of the wrongful act, not only in its perpetration, but also in its subsequent concealment,- are admissible against the other.”

In Miller v. State, 88 Tex. Cr. R. 157, 225 S. W. 262, the Supreme Court of Texas, in passing upon the question, held contrary to appellant’s contention, saying: “Under the evidence from the State’s standpoint, the appellant and Corcoran were co-conspirators, and the object of the conspiracy was the acquisition of the property, its sale, and the apportionment of the proceeds. Under this evidence, the conspiracy continued until its object was accomplished, and the acts and declarations of Corcoran in furtherance of the conspiracy were admissible, though in the absence of the appellant, and though made after the property had been taken. [Citing cases.] Even if the conspiracy had ended, the check was a part of the fruits of the crime, and its possession by the accomplice was admissible.”

The conspiracy being still in existence, tlie testimony of Mrs. Hulse and her daughter to the fact that Biddy Hooper brought the money from defendant, appellant, to Mr. Hulse’s house, he being one of the accomplices, and what he said with reference thereto are admissible and could be proved.

It is finally contended that there is not sufficient testimony corroborating the statements of the accomplices to support the verdict. The court has concluded otherwise, however. Mrs. Burke testified that she brought her husband and Cooper, the two bank robbers, to Mr. Hooper’s house, where they all spent the night before the robbery, and she went on back to Texas the next day, leaving them there. Hulse’s wife and daughter testified that Biddy Hooper brought Hulse money from the defendant, it being in half dollars, quarters, dimes and nickels, the kind of money taken from the bank; and there was other corroborative testimony sufficient to warrant the jury in finding that it connected the defendant with the commission of the crime. Middleton v. State, supra.

We find no prejudicial error in the record, and the judgment is affirmed.


text:
    Bronx Fire Insurance Company v. Cooper.
    4-2912
    Opinion delivered March 27, 1933.

      Verne McMillen and J. J. DuLaney, for appellant.

      Jones & Jones, for appellee.
   Kirby, J.,

(after stating the facts). Appellant contends that the court erred in rendering judgment for attorneys’ fees, etc., in the case, insisting that it could not do so because appellees failed to recover the amount of the claim sued for.

The court, after hearing the testimony in the case and upon the appellants’ offer to confess judgment for the amount sued for less the amount of the set-off claimed, instructed the jury that it was all appellants were entitled to, and instructed a verdict for appellees in the sum of $2,882.75. The judgment recites the offer to confess .judgment and the amount, and that said sum of $2,882.75 being the amount which plaintiffs sued for less $116.25, which defendants set up in their answer as a set-off, etc., rendered judgment for the said $2,882.75 with costs.

There was no reply made by appellees to the answer of appellants claiming the set-off of $116.25, which amount was in fact conceded to be due upon the set-off, which was but a cause of action against appellees. Sections 1205-6, Crawford & Moses’ Digest.

The claim as sued upon, however, was found to be correct and appellees entitled thereto in the judgment of the court, which allowed the claim and set-off of appellants, and returned judgment for the amount of the balance due, the difference between the amount sued for which appellees were entitled' to recover and the amount of the set-off allowed appellants on their claim. In other words, the appellees recovered in their suit the full amount sued for, which was reduced by a judgment for appellants on their set-off by the amount of it, judgment being in fact entered for the amount of appellees’ loss less what they owed appellants on the claim setoff.

The failure of the insurance company to pay the amount of the loss within the time specified in the policy after demand subjected it to payment of attorney’s fees upon the recovery under the policy, and it can make no difference in its liability to the payment of such penalty and costs that it failed to comply with and pay the loss when demanded, because the policy holder was indebted to the insurance company in a matter that could be set-off against the insured’s claim of loss under the policy, that furnishing no justification for failure to pay the loss within the time specified in the policy, and not relieving against the penalty of the statute.

Neither did this constitute a demand for a greater sum than appellees were entitled to under the policy, and the court did not err in granting judgment for the attorneys’ fee upon the motion therefor. Life & Casualty Co. v. Sanders, 173 Ark. 362, 292 S. W. 657; Pacific Mutual Life Ins. Co. v. Carter, 92 Ark. 378, 123 S. W. 384, 124 S. W. 764; National Life & Accident Ins. Co. v. Sherrod, 155 Ark. 381, 244 S. W. 436; Home Life & Accident Co. v. Scheuer, 162 Ark. 600, 258 S. W. 648.

It could make no difference that the judgment of the allowance of the attorney’s fee was made after the judgment was rendered on the policy, the matter having been postponed until another day for hearing the motion upon the question. It could be regarded in any event a motion to retax the costs, and there is no merit in the objection that the allowance of the attorney’s fee was made at a time after the rendition of the judgment, the question being reserved until the later date.

We find no error in the record, and the judgment is affirmed.


author: Mehaffy, J.

text:
    New Amsterdam Casualty Company v. Detroit Fidelity & Surety Company.
    4-2931
    Opinion delivered March 27, 1933.

      Buzbee, Pugh, & Harrison, for appellant.

      Horace Chamberlin, for appellee.
   Mehaffy, J.

This action was instituted by appellant to recover from appellee surety company for premiums due upon liability policies issued to the contractor, who had given a bond to the Highway Commission with the appellee as surety on said bond.

The Yellville Construction Company entered into a contract with the State Highway Commission for the construction of approximately twelve miles of grading and drainage on one of the Arkansas highways. On the same day it entered into the contract with the Highway Commission, it made a bond in conformity with act 368 of the Acts of the General Assembly for the year 1929, said bond being executed by the Yellville Construction Company as principal, and by the Detroit Fidelity & Surety Company as surety. By the terms of the bond, the surety company guaranteed the performance of the contract and guaranteed the payment of all claims for labor, materials, supplies, etc. Under the contract and laws, the Yellville Construction Company was required to enter into contracts for the protection against claims for personal injury or property damage during the prosecution of the work.

The appellant issued two' policies known as liability insurance policies, protecting the Construction Company against claims for damages to persons or property sustained during the construction work. These policies were in force during the entire prosecution of the work under the contract with the Highway Commission.

The appellant issued its policies to the construction company for certain premiums. It is alleged that the unpaid premium due on one policy is $2,527.01, and the unpaid premium due on the other policy is $402.65.

The complaint alleges that said policies of insurance were required to be carried by the Construction Company, and that the premiums therefor are within the protection of the bond of the Detroit Fidelity & Surety Company, and that said surety company and construction company are liable to appellant for said sums of money, with interest.

A paragraph of the bond given by the Detroit Fidelity & Surety Company is as follows: “Now, therefore, if the above bounden Yellville Construction Company shall in all things stand and abide by and well and truly observe, do, keep and perform all and singular the terms, covenants, guarantees and agreements in said contract to be observed, kept, done and performed, and each of them, at the time and in the manner and form therein specified, and shall do and perform all the labor and work and shall furnish all the material as specified in said contract and in strict accordance with the terms of said contract and the plans and specifications thereto attached and made a part thereof, and shall indemnify and save harmless said Arkansas State Highway Commission against any loss or damage whatever kind and character, arising or occasioned by deeds of negligence of said principal, his agents, servants and employees, in the prosecution of the work or by reason of improper safeguards or incomplete protection to the work and shall pay all bills for material, labor and' supplies entered into contingent and incident to the construction of said work, and shall complete said work within the time specified in said contract, then this obligation shall be null and void, otherwise to remain in full force and effect.”

The last paragraph in the bond reads as follows: “Unpaid claims for material, labor and supplies entered into contingent and incident to the construction of said work or used in the course of performance of the work shall have a right of action on this bond, but payments thereon shall be postponed until all claims of the Arkansas State Highway Commission herein have been paid in full.”

The bond mentioned above was given under the provisions of act 368 of the Acts of the General Assembly of 1929. The first section reads as follows: “That all bonds required by any commission or commissioners or board, or the agent or agents thereof, or any other public officer or officers for the construction of any public buildings, levee, sewer, drain, road, street, highway, bridge or other public buildings or works aforesaid, shall be liable for all claims for labor, material, camp equipment, fuel including oil and gasoline, food for men and feed for animals, labor and material expended in making repairs on machinery or equipment used in connection with the construction of said public buildings or works aforesaid, lumber and material used in making forms and supports and all other supplies or things entering into the construction, or necessary or incident thereto or used in the course of construction of said public buildings or public works; said bonds shall also be liable for rentals on machinery, equipment, mules and horses used in the construction of said public buildings or public works aforesaid, and all persons holding such claims shall have a right of action on said bonds.”

Appellee filed a demurrer alleging that the complaint does not state facts sufficient to constitute a cause of action against it, because act 368 of the Acts of 1929 of the General Assembly of Arkansas, and the bond referred to in the complaint, do not cover the items sued on. The only question for our consideration is whether the bond covers the items sued on.

The bond sued on is a statutory bond, and such bonds, executed in the form prescribed by the statute, are to be construed, as respects the rights of both principal and surety, as though the law requiring and regulating them were written in them. Crawford v. Ozark Ins. Co., 97 Ark. 549, 134 S. W. 951; Detroit Fid. & Surety Co. v. Yaffee Iron & Metal Co., Inc., 184 Ark. 1095, 44 S. W. (2d) 1085; Zellars v. National Surety Co., 108 S. W. 548; 9 C. J. 34.

In construing this bond the court must construe it as if the law were written into it. It must, however, be construed as a whole, and, as against sureties, there is no implication to be made not clearly embraced within the language used. Sureties are only chargeable according to the terms of the bond. A bond, like other written instruments, should be so construed as to effectuate the reasonable intention of the parties. Loeb v. City of Montgomery, 7 Ala. App. 325, 61 So. 642; Savage v. Neal, 151 Tenn. 70, 268 S. W. 375; Blyth-Fargo Co. v. Free, 46 Utah 233, 148 Pac. 427; U. S. Fid. & Guaranty Co. v. Iowa Tel. Co., 174 Iowa 476, 156 N. W. 727.

The law under which,the bond sued on was given provides that the sureties shall be liable for all claims for labor, material, camp equipment, fuel including oil and gasoline, food for men and feed for animals, labor and material expended in making repairs on machinery or equipment used in the construction of said public buildings or work aforesaid, lumber and material used in making forms and supports, and all other supplies or things entering into the construction or necessary or incident thereto, or used in the course of construction of said public buildings or public works. The surety is liable on its bond for all the things above mentioned.

Where parties have entered into written agreements with express stipulations, they cannot be extended by implication. The presumption is that, having named the things as the statute does in this case, those are all the things for which they intended to be bound under the instrument. The surety will not be bound by other things not mentioned. In other words, the surety is bound by the terms of the contract, and its liability cannot be extended by implication unless it was clearly the intention of the parties to the contract.

The bond, when the statute is read into it, does not provide for the payment of premiums to another insurance company.

The judgment is affirmed.


author: Mehaffey, J.

text:
    Chicago, Rock Island & Pacific Railway Company v. Greer.
    4-2941
    Opinion delivered March 27, 1933.

      Geo. B. Pugh and Thos. S. Buzbee, for appellant.

      Ingram & Moher, for appellee.
   Mehaffey, J.

The appellee, in December, 1931, delivered to the appellant, Chicago, Rock Island & Pacific Railway Company, a gasoline underground; tank in good order, of the value of $50 consigned to A. L. Fuqua at Brewton, Alabama.

Appellee brought suit in the justice court, alleging that said tank was damaged by the negligence of appellant and was refused by the consignee at destination; that the damage was such as to render the tank worthless.

Appellant did not appear in the justice of the peace court, and judgment was rendered against it for the amount sued for. An appeal was prosecuted to the circuit court, where the case was tried, and the jury returned a verdict for $50, and .judgment was entered accordingly. The case is here on appeal.

The appellee contends that the bill of exceptions does not show that it contains all of the evidence. "We do not agree with the appellee in this contention. The record shows that the appellant did not offer any proof, and the record also contains the following statement: “The foregoing was all of the testimony introduced by the plaintiff.”

If the record shows that it contains all of the testimony introduced by plaintiff, and also shows that defendant did not introduce any testimony, this is a sufficient showing that the bill of exceptions contains all of the evidence.

Appellee also contends that the record does not show when the motion for new trial was filed. The statute requires a motion for new trial to be filed within three days. The record shows that the trial was had on August 10, 1932, and the record also shows that the motion for new trial was overruled on August 10th. It therefore must have been filed on the same day the judgment was rendered, and was overruled the same day.

Several letters were introduced in evidence over the objection of appellant. The first letter was one written by W. O. Bunger, superintendent of freight claims. The objection made to this letter was that it was hearsay. The writer advised the appellee about facts which he stated he learned from the agent at destination. Appellant’s contention is correct. This letter was incompetent because it purported to state what another party had told Bunger.

The next letter introduced and objected to was from W. O. Bunger to the appellee, but the statements in this letter were also about facts not within the knowledge of the writer. This letter was improperly admitted in evidence over the objection of the appellant.

The next letter objected to was a letter from the consignee to the appellee. The consignee, Fuqua, could of course have testified as to the condition of the tank when it arrived at Brewton, but a letter written by him was not competent. The appellee should have taken Fuqua’s testimony, and the other party should have had an opportunity to cross-examine him.

There was a letter introduced, however, written on the letterhead of the Louisville & Nashville Railroad Company, and addressed to the agent of appellant at Stuttgart, Arkansas, and signed by S. A. Jackson, agent. This letter shows that the agent at Brewton had received a letter on the 6th with reference to the shipment of the tank, and this letter of the agent at Brewton was in response to the letter written by appellant’s agent. It shows that the tank was in bad condition when it arrived at its destination.

In appellant’s motion for a new trial, it did not assign as error the court’s ruling in permitting this letter to be read as evidence, and its objection to this letter is therefore waived.

The undisputed evidence shows that this tank was delivered in good order. Mr. J. M. Grimes, the freight agent for appellant at Stuttgart, testified as to having received the tank from appellee for shipment to Brew-ton, Alabama. He made out tbe bill of lading. Tbe bill of lading which was introduced showed that the tank was in good order when delivered to the carrier. There was no notation on the waybill that there were any holes in the tank. This witness also testified about the claim having been presented to him, but he was unable to say whether the letter signed by Jackson which he received was written by the agent of the delivering carrier.

The tank having been received in good order, and the letter of the agent of the delivering carrier showing that it arrived at its destination in bad order — in a damaged condition — made a prima facie case, and the burden was then upon appellant to show that it was not negligent in handling tbe shipment.

Appellant offered no evidence at all, or no explanation, and the evidence introduced by appellee was sufficient to justify the jury in finding for the appellee.

The judgment is affirmed.


author: McHaney, J.

text:
    Missouri Pacific Railroad Company v. Cox.
    4-2932
    Opinion delivered March 27, 1933.

      Thos. B. Pryor and H. L. Ponder, for appellant.

      Griffin & Griffin, for appellee.
   McHaney, J.

Appellee, Bernice Cox, aged 11, was injured at a public crossing in Bald Knob when her foot was' caught in a bond wire attached to the rails of appellant’s track to complete the circuit for signal purposes, which tripped her, caused her to fall across one of the rails, and injured her left side severely. Her suit against appellant resulted in a verdict and judgment in her favor.

The principal question argued is one of fact — whether the evidence was sufficient to support the verdict. We agree with the trial court that it was. It shows that this bond wire was right in the middle of the crossing, and had been permitted to extend over the top of the rails so as to form a loop a few inches above the rails. It was a copper wire about 2% feet long and attached at each end to the side of a rail about 2% inches below the ball of the rails. Ordinarily, this wire is covered with plank at a crossing, but in this case there was no plank, but gravel, and the wire had worked up above the rails, making a trap for pedestrians who might pass over it and hook a foot therein. It is true the appellee had passed over this crossing many times and three times the day she was hurt. She had not noticed the dangerous condition of the wire. Appellant was required to exercise ordinary care to keep its crossings reasonably safe for public travel, and certainly would not have the right to set a trap or a snare therein which might reasonably be expected to cause injury to another.

Nor do we think the little girl was guilty of contributory negligence as a matter of law. Not only was she a child of tender years and cannot be held to the same degree of caution and prudence as an adult person (St. Louis, I. M. & S. R. Co. v. Sparks, 81 Ark. 187, 99 S. W. 73, and Gates v. Plummer, 173 Ark. 27, 291 S. W. 816), but it might well be a question for the jury,-even as to an adult person, as to whether it would be.negligence to fail to see the wire in daylight and thereby-avoid it.

Appellant cites the recent case of Missouri Pac. Rd. Co. v. Richardson, 185 Ark. 472, 47 S. W. (2d) 794. We think that case is not analogous to this. There Richardson, an adult, was injured at a crossing by stepping on a small rock or gravel which caused his ankle to turn and twist his knee. We there held there was no liability, for the reason that, even though it be conceded that the company was negligent in permitting particles of gravel to fall from its trains, still the injury to Richardson was not a consequence that ought to have been foreseen. Here however any person would be bound to know that a short wire .looped above the rails in a crossing is a trap for the unwary pedestrian which would likely cause a fall and consequent injury.

We find no error. Affirmed.


text:
    St. Louis Southwestern Railway Company v. Cook-Bahlau Feed Manufacturing Company.
    4-2938
    Opinion delivered March 27, 1933.

      Carter, Jones & Turney and Lamb & Adams, for appellant.

      John Sherrill, for appellee.
   McHaney, J.

Appellees, Cook-Bahlau Feed Manufacturing Company and Ætna Casualty & Surety Company, will hereinafter be referred to. as principal and surety respectively. August 19, 1926, they executed and delivered to appellant the following bond: “We undertake that the undersigned principal will, (1) within ten days from date of delivery of each shipment, surrender, duly indorsed, to the St. Louis Southwestern Railway Company the original shipper’s order bill of lading covering such shipment or shipments which may, from time to time, be delivered by said railway company, upon the written order of the principal, stating that the bill of lading for such shipment has been lost or delayed, and also stating the true, value of said shipment or, in case the same is lost, furnish the said railway company satisfactory written evidence of such loss; and, (2) indemnify said St. Louis Southwestern Railway Company, the successors and assigns thereof, and each connecting carrier participating in the transportation of said shipment, against all losses, costs, expenses, attorney’s fees, claims, judgments and demands of whatever kind resulting from, or arising or growing out of, directly or indirectly, such delivery of such shipments, without production and surrender of each said order bills of lading issued therefor, or prior to the payment of any draft accompanying the same or for nonobservance of any provision contained in said bills of lading with reference to delivery. ’ ’

This bond was on a form prepared by appellant, and continued in force and effect until failure of the principal in October, 1930. It was executed pursuant to § 793, Crawford & Moses’ Digest. The principal was a large grain dealer in Pine Bluff, and received shipments of many cars of grain. Only two cars are involved in this .litigation. Car UP No. 127131 containing oats reached Pine Bluff September 21,1930. Shipper’s order bill of lading with draft attached for $900 drawn on the principal reached Merchants’ & Planters’ Bank, Pine Bluff, September 19, two days before arrival of car, and principal was promptly notified thereof, either on that day or the next. Car MEC No. 5042, also containing oats, arrived September 28, 1930. Shipper’s order bill of lading with draft attached for $1,028.23 reached the same bank September 25, three days before arrival of car, and notice was promptly given. Both cars were delivered to the principal by appellant without the surrender of the bills of lading and without requiring a “written order of the principal, stating that the bill of lading for such shipment has been lost or delayed and also stating the true value of said shipment; or, in case same is lost, furnish the said railway company satisfactory written evidence of such loss.” The drafts attached' to .said ladings were not, paid by the principal, and appellant-was required to pay the shippers for such merchandise.' It thereafter brought this action against the principal and the surety to recover on the bond. The principal, being insolvent, defaulted, and judgment was had against it. The surety defended on the ground that the loss sustained was not covered by its bond. The trial court found im-favor of the surety, and entered judgment accordingly.

We think the court correctly so held. While the bond is entitled “Blanket Indemnity Bond for Delivery of Shipper’s Order Freight Without Surrender of Original Bill of Lading,” it is not in fact such a bond. By its express terms it' does not purport to indemnify appellant for all shipper’s order freight it might deliver to the principal without surrender of B/L, but only in such .cases as the B/L “has been lost or delayed,” and only then on the written order of the principal so stating and the true value thereof, and, in case of loss, proof thereof satisfactory to appellant. The conditions upon which appellant might deliver shipper’s. order freight to •the principal are plain and unambiguous. The object of both the statute and the bond was to facilitate the delivery of shipper’s order freight where the B/L was lost or delayed. The original act shows this to be the fact, and the bond speaks for itself. The act is entitled: “An act to permit shippers and consignees of freight * # * to execute bonds to common carriers * * * in order to obtain possession of goods when they are unable to present and deliver the original bills of lading and receipts.” One of the reasons for the act is recited in the second preamble as follows: “Whereas it often happens that the shipper or consignee fails to receive said bill of lading or original receipt, and the goods called for therein cannot be delivered on account of the absence of the original receipts and bills of lading, thus causing delay and injury to the goods.” No doubt the Legislature had in mind the convenience of the shipper or consignee and the perishable nature of the shipment. There would be no reasonable excuse for substituting a bond for the surrender of a B/L, which was not delayed or lost, for, if present to the knowledge of the consignee, all he would have to do would be to pay the holder of the draft and obtain the B/L. The language of the act is broad enough perhaps to authorize the carrier to accept a bond so general in its terms as to cover all deliveries of shipper’s order freight as it might make without surrender of B/L, but it does not require such a bond to be executed. The bond in this case was not such a bond. It was clearly limited to such shipper’s order freight which could not be delivered because of loss or delay of the B/L. In the case now before us the B/L in neither case was lost or delayed, and no written order was made by the principal so stating. Had the principal made such written order and stated that the B/L was either lost or destroyed and otherwise complied with the requirements of the bond, an entirely different case would be before us. It would then be more like the case cited and relied on by appellant — that of Kansas City S. Ry. Co. v. U. S. F. & G. Co., 174 Ark. 318, 295 S. W. 705. In that case the bond was entirely different from the bond in this case. 'But paragraph numbered 2 of that bond was the basis of the principal defense of the surety, and it read as follows: “That neither the principal nor its agents nor employees shall request, accept or receive from said railway company the delivery or possession of any freight to which it would not be entitled upon the production and surrender of bills of lading or shipping receipts therefor, and that no delivery of freight on account of this bond will be requested or made where the draft with the bill of lading is then in any bank at point of delivery for collection.”

The consignee in that case requested delivery, although the B/L was then in the bank at Fort Smith with draft attached. We held the surety liable. No such state of facts exists in this case. The bond is not so broad and all inclusive. No demand, written or otherwise, was made on appellant for delivery, and no showing that the B/L was either lost or delayed. The parties to this contract are sui juris.- Attorneys for appellant prepared the bond. Courts do not make contracts for the parties, but only construe them. The parties having made this contract in clear and unambiguous language, it is the duty of the court to construe it according to the plain meaning of the language employed, and not to enlarge or extend its terms on any theory of strict construction against appellant because it prepared the bond, or against the surety because it is a paid surety.

The bond having clearly named the conditions on which the surety would be liable, appellant must be held to show a breach of such conditions before it can hold the surety liable. Not having done so, the judgment must be affirmed. It is so ordered.

Smith, J., dissents.


author: Butler, J.

text:
    Taylor v. Gregory Special School District.
    4-2933
    Opinion delivered March 27, 1933.
    W. J. Dungan, for appellant.

      Thomas Fitzhugh, for appellee.
   Butler, J.

The Gregory Special School District filed its complaint in the Woodruff Chancery Court against Walter E. Taylor, State Bank Commissioner, in charge of the Bank of Augusta & Trust Company, an insolvent bank, to have its claim adjudged as a preferred claim; the contention being that it became such by virtue of § 74 of act 169 of the Acts of 1931. The facts were agreed to, and a statement of the same filed with the court as follows:

The president of the school district presented a school warrant to the 'bank on October 6, 1931, for $1,000 and obtained a check therefor drawn on the Memphis correspondent of the bank for the sum of $1,000, payable to Channer Securities Company. The bank presented the school warrant to the county treasurer and obtained a county treasurer’s check for $1,000, drawn on the bank as subdepository of county funds, and said bank charged the treasurer’s check to the account of the treasurer in the bank. The bank closed its doors as insolvent on the 7th day of October, 1931, and its assets were taken over by Walter E. Taylor, State Bank Commissioner. Because of the insolvency of the bank the cashier’s check was not paid and had not yet been paid. The bank had its funds with its Memphis correspondent to pay the cashier’s check when issued and when the bank closed its doors. The transaction did not add to the assets of the bank nor lessen its liabilities, but resulted in shifting on the books the $1,000 item from the treasurer’s account to the account of “Drafts Outstanding.”

The Bank Commissioner filed an answer to the complaint, and a decree was entered in favor of the school district, from which decree the Bank Commissioner has prosecuted this appeal.

That part of § 74, act 169, supra, relied on by appellee to sustain the decree of the court below is as follows: * * * “Provided that if the bank selected by the school board as a depository of its funds shall be unable to secure such school deposits as herein set out, it shall be authorized to accept such funds as a preferred deposit, and, in the event of insolvency, such preferred deposit shall be paid before other bank deposits are paid.” This act was construed in the case of Boone County Board of Education v. Taylor, 185 Ark. 869, 50 S. W. (2d) 241, contrary to the interpretation placed upon it by the court below, which case, we believe, and that of Taylor v. Dermott Grocery & Com. Co., 185 Ark., p. 7, 45 S. W. (2d) 23, settle the instant case against appellee’s contention and call for a reversal of the decree of the trial court.

In the last-named case the grocery company obtained from the debtor a check on an account with the Chicot Trust Company and obtained from the said trust company a cashier’s check in lieu thereof which he sent to his company. Before it reached the bank for payment the trust company became insolvent and was taken over by the Bank Commissioner. In that case it was held that the cashier’s check had no preference over that of the other creditors and was allowed as a common claim. In the first-named case act No. 169 of the General Assembly of 1931, relied on in the instant case, was construed, the contention made being the same there as is now made here. In that case it was held that the act, in so far as it related to dealings of a school district with a bank, should be read and construed with the State banking laws, act 107, Acts 1927, for that act and § 74 of act 169, Acts 1931, affected the same subject-matter, and we said:

‘ ‘ The two acts of the Legislature are related to each other, and a statute is not to be construed as though it stood alone on any particular subject. It is well settled that repeals by implication are not favored; and, in construing any statute, the court should place it beside other statutes relevant to the subject and give it a meaning and effect derived from the combined whole. Where the harmony of the law requires, one statute may be construed as lengthening out another. So the act of 1931 was passed with reference to the general law upon the subject of winding up insolvent banks and fixing the liabilities and preferences of creditors to each other. Both acts, being related to each other, should be construed together as a part of an entire law of which both are a part. State v. Sewell, 45 Ark. 387; Benton v. Willis, 76 Ark. 443, 88 S. W. 1000; McIntosh v. Little Rock, 159 Ark. 607, 252 S. W. 605, and Connelly v. Lawhon, 180 Ark. 964, 23 S. W. (2d) 990. Applying this principle of law to the case at bar, we think the Legislature of 1931, when it provided in the proviso of the section under consideration that a bank should be authorized to accept school funds as a preferred deposit under certain contingencies, meant to use the words in the sense defined by the Legislature of 1927, and meant that, in order for the bank to accept school money as a preferred deposit, the agreement must be in writing, in compliance with act No. 107, passed by the Legislature of 1927, as construed by this court in the cases above cited. In this way the two statutes would be read and considered together, and construed as a harmonious whole.”

The chancellor erred in holding that the claim of the appellee school district was a preferred claim, and the decree will therefore be reversed, and the cause remanded with directions to allow the same as a common claim.


text:
    White v. Williams.
    4-2934
    Opinion delivered March 27, 1933.

      M. A. Matlock, for appellant.

      Rose, Hemingway, Cantrell & Loughborough, for appellee.
   Butler, J.

This suit was brought by the appellant as a citizen and taxpayer against Blake Williams as sheriff and the surety on his official bond to recover for the use and benefit of Pulaski County the net profits received by the sheriff for feeding the county and federal prisoners confined in the Pulaski County jail during Williams’ term as sheriff.

The complaint, as amended, alleged that the prosecuting attorney, when requested, had failed and neglected to join in the action or to bring a separate action. With the complaint was filed a bill of particulars setting out the sums received each month for feeding the county prisoners and the sums received for feeding the federal prisoners. It was alleged that Williams had made no accounting of the expense incurred in the feeding of the prisoners or what the net profits were; that he acted in this matter under color of authority of act No. 81 of the General Assembly of 1931.

It was alleged that the said Williams had received as a salary the sum of $5,000 per annum; that plaintiff was advised and believed that the sums received for feo ' ing the prisoners were in excess of the amounts expended by the sheriff for the same, and the excess above the lawful costs expended by him increased the amounts received by him as sheriff above $5,000 per annum, and that plaintiff believed and alleged that the excess was over $10,000, and that act No. 81 was in contravention of article 19, § 23, of the Constitution; that plaintiff had no knowledge or means by which he could ascertain the amount expended by Williams for feeding the prisoners in excess of the actual cost thereof, and prayed that he be required to account for and pay into the county treasury the net profits received by him.

To that complaint a demurrer was interposed and sustained.

It is first insisted that the complaint does not state issuable facts because its allegations are that plaintiff' (appellant) is informed and believes that it cost appellee less than eighty-five cents per day to feed a prisoner, and that he believes appellee has received greatly in excess of the cost of feeding the prisoners. Where the facts are not alleged to exist, but there is a mere statement only that plaintiff has received information to that effect, a complaint is insufficient and is subject to demurrer, but where the charge is made upon information and belief, and there are averments in the complaint warranting the inference that the pleader asserts them to be true, the complaint is sufficient upon demurrer. Holland v. Davies, 36 Ark. 446; Sebastian County v. Hocott, 141 Ark. 301, 217 S. W. 258. It is the rule that, if, from the allegations of facts in the complaint together with every reasonable inference arising from all of the allegations, a cause of action is stated, the demurrer should be overruled. This is a suit for an accounting and from all the allegations we are of the opinion that it reasonably appears that the charge is made as a fact that appellee received for feeding the prisoners a sum in excess of the actual cost thereof and in excess of the sum of $10,000. We think therefore that the complaint was not subject to demurrer on the ground first urged. Kilgore Lumber Co. v. Halley, 140 Ark. 448, 215 S. W. 653.

The appellant here contends, as in the trial court, that the appellee is obliged to account for the moneys received for feeding the prisoners, and, if there was a profit, to pay the same into the county treasury. The appellee contends that there was no duty on his part to do this because of the provisions of act No. 81 of the General Assembly of 1931; that it was within the power of the Legislature to allow a reasonable lump sum to cover the expense of feeding the prisoners, and that this is what act No. 81 provided.

That part, .of the act involved in this case is a part of § 1, and reads as follows: ‘ ‘ The expense of feeding-prisoners. in the county jail is declared by law to be the sum of eighty-five cents (85c) per prisoner per day, and the sheriff shall have charge of feeding the prisoners. Compensation therefor shall not (be considered as fees of the office. The sheriff shall pay the expense of cook and janitor, also expense of lights, water and gas used for cooking. ’ ’

Article 19, § 23, of the Constitution of 1874, which, it is claimed the act as interpreted and applied in the court below offends against, is as follows: “No officer of this State, nor of any county, city or town, shall receive directly or indirectly, for salary, fees and perquisites more than five thousand dollars net profit per annum in par funds, and any and all sums in excess of this amount shall be paid into the State, county, city or town treasury as shall hereafter be directed by appropriate legislation.”

The act of the General Assembly passed February, 1875 (Section 4633 et seq., Crawford & Moses’ Digest), in aid of the above provided that it should be the duty of certain named State officers and of each county, city, town or village officer receiving fees or emoluments of office to keep a record book in which on each day all moneys or other funds received in payment of fees or by way of emolument pertaining to the office shall be entered. Further provision was made in that act to the effect that said record books kept by county officers should be kept open for the inspection of the judges of the circuit and county courts of the county, and that each officer coming within the purview of the act should make an annual report under oath beginning at the end of the first year of his term of office, and that the county officers should make this repor-t to the judge of the circuit court in which “shall be set forth the amount of money or other evidence of value, if any, received during* the year preceding on account of such office whether from salary, fees or other emoluments or perquisites of such office,” and, if the total amount of' the receipts of office shall exceed in par funds the sum of $5,000, the officer shall further report the amount expended by him in the conduct of his office for said year which shall be deducted from the gross amount of receipts, and, if the balance shall exceed the sum of $5,000 in the case of a county officer, it shall be paid into the treasury of the county.

In determining whether an act of the Legislature violates the Constitution, it must be presumed that the Legislature acted in good faith and within constitutional limits and its acts will be upheld unless its application would necessarily come within the inhibition of some provision of the Constitution.

We approach the question of the constitutionality of the act involved with this principle in mind and with recognition of the legislative power to fix a certain sum as expenses in any reasonable manner where, by so doing the Constitution is not violated. In support of the constitutionality of the act in question, we are referred by counsel to cases of other jurisdictions and to our own case of Mays v. Phillips County, 168 Ark. 829, 274 S. W. 5, 279 S. W. 366. We refrain from reviewing the cases cited from other jurisdictions because the question before ns must be determined from a consideration of the peculiar language in our Constitution and laws, and we think that the case of Mays v. Phillips County, supra, has no application, for the reason that the question now before us was not presented to the court in that case.

No case has before arisen where the amounts received bv sheriffs for feeding prisoners as a part of the total salary allowed was involved, but it is apparent to us that any profit made for this service would be an emolument or perquisite of office, as it would be received by the individual holding office by virtue of the same, and, as under the Constitution, in determining the total amount of the salary, account must be taken of all fees and perquisites directly or indirectly received by the officer as such, it is manifest that the profits made from feeding prisoners would be just as any other perquisite and must be accounted for. Therefore the declaration of the Legislature that the expense of feeding prisoners is eighty-five cents per prisoner per day, which should not be considered as fees of the office, is inoperative, if its practical application would serve to increase the salary of the officer beyond the limit fixed by the Constitution.

The language of the Constitution and the enabling act is so clear and explicit that it may not be evaded in any way whatsoever, and where the Legislature enacts a law having the necessary effect of evading the limit set by the Constitution, 'such act is void. This, under the allegations pf the complaint, is the effect of the act in question.

In fixing the compensation of members of the Legislature in certain amounts, the Constitution provided that they should receive no compensation, perquisite or allowance except in the manner named. -By resolution of the House and, on a later day, of the Senate, it ivas resolved that the sum of $100 should be paid to each member for expenses incurred while attending the Legislature. In the case of Ashton v. Ferguson, 164 Ark. 254, 261 S. W. 624, this court held that this ivas nothing more nor less than an allowance and was in violation of the Constitution. We can see no difference in principle between the question considered in that case and the one here involved. It is very ably argued that the policy of act No. 81 was wise and expedient, that the amount named as expenses for feeding the county prisoners ivas not unreasonable to the extent that the court would take judicial notice that it was such. The answer is that its effect clearly might be to compensate appellee in a sum greater than that fixed by the Constitution, and, however ivise or reasonable it might be, it is none the less a violation of the plain provisions of the Constitution.

Appellee seeks to distinguish between the expense of feeding federal prisoners and county prisoners and argues that as to the first it was a matter solely betAveen the United States Government and appellee personally. This is not true however for the sums received by him from the Government were received because he was a county officer and by virtue of his office. These sums therefore stood on no different footing from the fees received from any other source because appellee is required to account for all fees and perquisites received, either directly or indirectly.

We are of the opinion that the trial court erred in sustaining the demurrer. The judgment is therefore reversed, and the cause remanded with directions to overrule the demurrer and for further proceedings.

Smith and McHaney, JJ., dissent.


author: Johnson, C. J.,

text:
    Common School District No. 42 v. Stuttgart Special School District No. 22.
    4-3021
    Opinion delivered April 3, 1933.

      A. G. Meehan and John W. Moncrief, for appellant.

      Ingram & Moher, for appellee.
   Johnson, C. J.,

(after stating the facts). It is apparent that this controversy hinges upon the validity or invalidity of the order of the county board of education made and entered March 8,1930. This order of the county board of education does not show upon its face that any petition by property owners was ever filed with said county board of education prior to its enactment. It does not show upon its face that any notice was given of any contemplated changes in the boundary lines of said district prior to the entry of said order. For these reasons the trial court held the order of the county board of education, made and entered as aforesaid, void.

It is the contention of the appellant district that all defects or omissions of said county board of education in making and entering said order aforesaid were cured by § 54 of act 169 of 1931, which section reads as follows:

“Section 54. All districts formed by action of the county board of education of any county prior to the passage of this act are hereby made districts under the provisions of this act, and any errors, omissions, or defects in the procedure of creating such district are hereby cured, and the action creating any such district is hereby ratified. Provided this section shall not be construed as validating any action of a county board of education concerning which a valid suit in a court of competent jurisdiction is now pending. ’ ’

The pertinent language in § 54 is, “and any errors, omissions, or defects in the procedure of creating such district are hereby cured.” Notwithstanding the county board of education on March 8, 1930, when it made and entered this order establishing the boundaries between the two districts, had no authority in law to effect the same except after a petition and notice had been filed, these defects and irregularities may be validated and cured by a subsequent act of the Legislature.

This court has held: “Where the irregularity consists in doing some act, or in the mode or manner of doing it which the Legislature might have made immaterial by a prior law, it may do so by a subsequent one.” Green v. Abraham, 43 Ark. 420.

This court has also held: “When a deed or other conveyance is invalid by reason of the failure of the parties thereto to conform to some formality imposed by the statute, the Legislature may by a subsequent act cure the defect and give the deed such effect as the parties intended it should have at the time of its execution." Pelt v. Payne, 90 Ark. 600, 30 S. W. 426.

We think that § 54 of act 169 of 1931 is applicable to the order of the county board of education made and entered on March 8, 1930, and that all omissions and irregularities therein, whether by lack of petition or notice, are cured and validated by said act, and that said order of the county board of education of Arkansas County has established the true boundary line between said two districts.

It is next insisted on behalf of the appellee that, even though this court should hold that the order of the county board of education establishing the boundary between the two districts Avas a Adalid and binding contract between the districts and properly promulgated by the county board of education, yet that part of the order which permits the high school children in District 42 to attend the high school in District 22 is not enforceable. We cannot agree to this contention. It Avoulcl certainly be inequitable and unjust to permit the appellee district to receive benefits under the order of the county board of education yet refuse to comply Avith the conditions on AAdiich it Avas granted. We think that this part of -the order of the county board of education should be treated as a transfer of the children of appellant’s district to District 22 for school purposes. When this is done, we only treat the order of the county board of education as it has been treated by the parties themselves for the past íavo years. District No. 42 and District No. 22 haA^e treated this as a valid order since its promulgation in March, 1930, up to and until this suit AAras filed, and Ave knoAv of no Adalid reason why they should not continue to do so.

It is next insisted on behalf of appellee that the order of the county board of education, in effect, is to say to appellee: “Regardless of changed conditions, Ave formerly had a small area Avhich Ave traded to you — you cannot — the Legislature cannot in the future exercise any authority over this situation — you cannot make any change of boundary or do anything that would disturb our invalid agreement.”

Counsel for appellee are mistaken in this vieAv. By a long line of decisions of this court, the Legislature is vested A\fith full authority to create school districts and change their boundaries at will; the Legislature may delegate this authority to any inferior department of the government such as the county court, the county board of education or any other agency it may desire. This order of the county board of education does not in any wise infringe upon the authority of the Legislature or any subordinate agency to change the boundaries between these two districts or to create new districts out of this or any other territory.'

This court is of the opinion that the order of the county board of education of Arkansas County made on March 8, 1930, establishing the boundaries between appellant, District No; 42, and appellee, District No. 22, is now a valid and binding order of said board by reason of act 169 of 1931, and that the order, in so far as it permits children in District No. 42 in all grades above the eighth grade to attend appellee’s schools in District No. 22, should be treated as a valid transfer of said children of District No. 42 for school purposes, and that this should be done until a change may be effected in said districts by the Legislature or some other subordinate agency authorized to effect a change.

For the reasons aforesaid, the decree of the Arkansas County Chancery Court is reversed, and remanded with directions to the chancellor to enter a decree in conformity with this opinion, and that a mandatory injunction be issued to carry out these directions.

Kirby, J., dissents.