author: McHaney, J.

text:
    Gulf Refining Company of Louisiana v. Haire.
    Opinion delivered January 9, 1928.
    1. Executors and administrators — discharge of administrator— parties. — Where one alleged to have caused the death of decedent, ■ and against whom suit was about to be brought for decedent’s death, moved in the probate court for vacation of an order discharging decedent’s administrator, held, that such person was not interested in the estate, being neither a debtor nor a creditor, so as to- make him a proper party relative to the administrator’s discharge.
    2. Judgment — motion to set aside — parties.—The courts will not set aside judgments at the instance of one who is neither a proper nor a necessary party to the controversy, and who has no interest in the judgment.
    Appeal from Union Circuit Court, Second Division; W. A. Speer, Judge;
    affirmed.

      Smnp Jenmngs and R. E. Riley, for appellant.
   McHaney, J.

Appellant has correctly stated the case as follows:

“Leander E. Haire, while employed by appellant, was accidentally killed by a boiler explosion at Smackover. The probate court of Union County appointed an admin istrator of his estate, and approved a contract with attorneys to prosecute an action against appellant for the negligent killing. Thereafter, on petition of the father of the deceased, the administrator was discharged, and the father brought the action. Appellant moved in the probate court-to vacate the order discharging the administrator, on the ground that it had an interest in having a personal representative who could give an acquittance on settlement or make claims of all beneficiaries res judicata. The probate court denied the motion, and the circuit court on appeal affirmed that decision. This is an appeal from that judgment.”

It is difficult to perceive what right appellant has to complain of the action of the probate court in discharging the administrator it had theretofore appointed, or of the action of the circuit court in affirming the judgment of the probate court in refusing to set aside its order discharging the administrator and his bondsmen. It does not claim to be a creditor of the estate of the deceased, nor does it admit that it is a debtor of said estate. If it admitted that it was indebted to said estate on account of the injury and death of the 'said intestate, and did not know to whom to make payment of the amount due it, it might be in a different situation. The administrator is not complaining of the order of the court discharging him, and neither -are the 'attorneys with whom the administrator entered into a contract to prosecute a suit against appellant for damages for the injury and death of said intestate, which was approved by the court. It is true that the father has brought an action agiainst appellant to recover for >such damages. If he is not the proper person to maintain the action, all questions pertaining thereto may be raised in the trial of that case. All questions sought to be raised by this appeal may be properly raised on the trial of the case wherein J. T. Ilaire has broug-ht suit against appellant for damages, but they Cannot be raised here. It did not have such an interest in the appointment of an administrator, being neither a debtor nor a creditor, as justified the court in making-it a party to the controversy. The courts will not set aside judgments at the instance of one who is neither a proper nor a necessary party to the controversy and has no interest in the judgment. But, since it was so made a party, and appealed to the circuit court, the action of the circuit court in affirming the judgment of the probate court is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Lathan v. Lathan.
    Opinion delivered January 9, 1928.
    1. Marriage — presumption as to validity op second marriage.— Where a second marriage is established in form according to law, the presumption arises in favor of its validity as against the former marriage, though the former husband or wife is living at thé time.

      2. Marriage — presumption of validity of second marriage. — The ■ presumption of the validity of a second marriage as against the former marriage is not overcome by the presumption in favor ' of the continuance of the first marital relation, coupled with the testimony of the former spouse that she has not obtained a divorce, and has no information as to whether the other spouse has obtained a divorce, and the testimony of thé clerk of the divorce court where the husband had some time lived that no divorce had been granted him therein.
    ■ Appeal from Phillips Chancery Court; A. L. Hutchins, Chancellor;
    affirmed.
    ■ Sheffield S Coates, for appellant.

      W. G. Binning, for appellee.
   McHaney, J.

Appellant and appellee both claim to be the lawful widow of Charlie Lathan, deceased, who died intestate and without issue in Phillips County, Arkansas, in the month of February, 1926. Appellant was lawfully married to said Charlie Lathan on December 24,1896, at Eupora, Mississippi, and thereafter lived with him ias his wife there, and at Cleveland, Mississippi, until in 1909, at which time Charlie Lathan left appellant and removed to Phillips County, Arkansas. About two-years later, -appellee, who was also a resident of Cleveland, Mississippi removed from thence to Phillips County, and on July 31, 1913, she was married to Charlie Lathan. On June. 8, 1917, said Charlie Lathan and appellee purchased the land described in the complaint which is sought to be partitioned in this action, taking the title thereto in their joint names,-so as to create ian estate by the-entirety in them, if appellee was the lawful wife. Appellant brought this action to partition said land, charging that Charlie Lathan and appellee owned said land as tenants in common, and that she had acquired title to an undivided one-half interest therein from the collateral heirs of Charlie Lathan, and was therefore entitled to an undivided one-half interest therein. The court made a general finding of fact for appellee, entered a decree dismissing the complaint for want of equity, and quieted and confirmed the title to the property in appellee, from which is this appeal.

Appellant has correctly stated the question for our determination as follows: “The appeal in this case raises the one question upon which the cause of the' appellant must stand or fall. Was she the legal widow of the deceased, Charlie Lathan?” Let it he conceded, as heretofore stated, that appellant wias lawfully married to Charlie Lathan in 1896. It is also true that he married appellee in 1913, four years after he had separated from his first wife. Appellant testified that she had not procured a divorce from her husband, and that, to her knowledge, no divorce had been granted him, although, according to Mr. J. M. Walker, a member of the Helena bar, she told him that she had been married to a man in St. Louis, evidently subsequently to her .separation from Charlie Lathan. No divorce was procured by Charlie Lathan in Phillips County, as the records of the clerk of the chancery court fail to show it. Appellee' testified that she knew appellant had been married to Charlie Lathan, but that he told her, prior to her marriage to him, that he had been divorced. Under this state of facts, what are the rights of the parties, and what is the law applicable thereto? Let us review some of the decisions of this court bearing upon this question, as well as decisions from other states.

In the case of Holbrook v. State, 34 Ark. 518, 36 Am. Rep. 17, this court said:

£ £ There was also .a presumption that appellant’s marriage with Jane Honeycutt was lawful, innocent, and not criminal. It is supposed that a man will not incur the guilt of felony and danger which attends it by marrying another woman during the life of one to whom he has previously been lawfully married.”

And again, in the case of Cash v. Cash, 67 Ark. 278, 54 S. W. 744, this court said:

“It is in evidence that she married in due form of law John H. Cash. The court properly held that the presumption of law is that this was a legal marriage, and that the burden to show its illegality was upon the party attacking the validity of the marriage on the ground of illegality to show it by evidence. It is not presumed that the appellee violated the law. The presumption that the marriage was legal is stronger than the presumption that Miles Hankins, to whom she was first married, was living at the time of the second marriage. Her marriage is presumed to have been ‘lawful, innocent, land not criminal’.”

Again, in the more recent case of Estes v. Merrill, 121 Ark. 361, 181 S. W. 136, the court goes a little further and states the law as follows, on the question of the presumption :

“¡So strong is the presumption and the law is so positive in requiring the party who asserts the illegality of a marriage to take the burden of proving it, that such requirement obtains, even though it involves the proving of la negative, and although it is shown.that one of the parties had contracted a previous marriage, and the existence of the wife or husband of the former marriage at the time of the second marriage is established by proof, it is not (Sufficient to overcome the presumption of the validity of the second marriage, the law presuming rather that the first marriage has been dissolved by divorce, in order to sustain the second marriage.”

And in the still later case, McGaugh v. Mathis, 131 Ark. 221, 198 S. W. 1147, the court quoted the above from Estes v. Merrill with approval, and again adhered to the principle therein stated.

In' the case of Brotherhood of Railroad Trainmen v. Meredith, 146 Ark. 140, 225 S. W. 337, this court again approved the above citations in the following language:

“Counsel for appellee cite numerous cases of other courts, as well las decisions of this court, to the effect that there is a presumption of validity in favor of any marriage which is shown to have been solemnized, and that the burden of proving its invalidity rests upon him who questions its validity, and that this is true, notwithstanding it requires proof of a negative. * *'*
“'Counsel for appellee correctly state the presumption of law, and the testimony in the case would have supported a verdict to the effect that this presumption had not been overcome; but, as the verdict was directed against the company, the question-is whether the jury might not have found otherwise. ’ ’

This case was reversed because not submitted to the jury. On the second appeal of this case, Brotherhood of Railroad Trainmen v. Fountaine, 155 Ark. 578, 245 S. W. 17, this presumption was again sustained.

To the same effect see Bishop on Marriage, Divorce and Separation, §§ 77, 956, 958. In the case of Chancery v. Whinney, 47 Okla. 276, 147 p. 1087, the court said:

“Marriage will not be destroyed on presumption. The law is astute to preserve the sanctity of the marriage relation, and legitimacy of children and stability of descent and distribution, and therefore presumes innocence and virtue, in the absence of proof to the contrary. (Citing cases). In Haile v. Haile, 40 Okla. 101, 135 Pac. 1143, the plaintiff testified that she had never obtained a divorce from her first husband, but did not testify as to Avhether he obtained a divorce from her and that 'by such divorce their marriage relations were dissolved. Then the defendant introduced depositions of the clerks of the circuit courts of three counties in Illinois and one county in Texas, in Avhich counties the plaintiff’s former husband had at different times resided. It was said by the court that the eAddence did not establish that the counties named in the depositions were the only counties in which said former husband resided during said time, and that said courts weré the only courts that had jurisdiction to grant him a divorce. It was further said that the stability of descent and distribution, the rendering illegitimate of innocent children upon such facts as were presented by the record .in that case, established the wisdom; of the presumption that sustains the validity of a marriage contract under the forms of law; and it was held that the trial court did not err in his finding to the effect that the presumption had not been overcome.”

The case of Pittinger v. Pittinger, 28 Col. 308, 64 Pac. 195, 89 Am. St. Rep. 193, is a leading case, and is in point with, the case at bar. In the course of this opinion the court said:

“Appellee having been named as the beneficiary in the original certificates, and designated therein as the wife of deceased, she is presumed to be a legal one, and bear the relation to the insured designated (Knights of Honor v. Davis, 26 Col. 252, 58 Pac. 595), so that, to the extent that the rights of appellant are dependent upon the fact that appellee was not the wife of deceased, the burden of proof rested with her to establish this issue by a preponderance of the evidence. On this subject the first wife testifies to the effect that she was married to deceased in 1876. She took no steps herself to obtain a divorce, and states that no papers for that purpose were ever served upon her. This is the only testimony tending to establish that the marriage relation between herself and deceased was not dissolved, as the evidence of the other witnesses on behalf of appellant on this subject is immaterial. As against this testimony we have the undisputed evidence to the fact that a marriage ceremony was regularly solemnized between appellee and deceased, and the question squarely presented is: Does the proof of the existence of the former marriage relation of deceased and the testimony of the former wife establish that the marriage of appellee was invalid? No.man is presumed to do an unlawful act. When a marriage has been shown, the law raises a strong presumption in favor of its legality. By some of the authorities this presumption is said- to be one of the strongest known to the law. Its strength increases with the lapse of time. This presumption arises because the law presumes morality, and not immorality, and that every intendment is in favor of matrimony. (Citing cases).
“This presumption applies with peculiar force in favor of one who is unable to prove affirmatively that the man with whom she entered into the marriage relation in good faith was divorced from a former wife. Appellee was not acquainted with deceased until she met him in Colorado, and, except for the presumption in favor of her innocence, there would be imposed upon her an unreasonable burden if she is required to show that, prior to her contracting marriage with the assured, he had been divorced: It is contended on behalf of appellant that, the marriage of deceased to his first wife having been shown, this is sufficient to overcome the presumption in favor of the legality of the marriage between deceased and appellee. While it is true that it is a presumption of law that a fact continuous in its nature, such as marriage, continues after its existence is once shown, yet this presumption is not sufficient in all cases to overthrow the presumption of law in favor of innocence. Klein v. Laudman, 29 Mo. 259. In other words, under the facts of this case the presumption of the continuance of the first marriage, based upon the naked fact that it was solemnized, is not equal in probative force to the presumption in favor of legality of appellee’s marriage (Erwin v. English, 61 Conn. 502, 23 Atl. 753); so that the remaining question on this subject is, was the evidence of the first wife, that no process in divorce proceedings instituted by deceased had ever been served upon her, sufficient to overthrow the presumption in favor of appellee? * * * It is not impossible that he might have instituted proceedings for a divorce and his first wife not have received a copy of the summons, even though mailed to her. * * * In this instance appellee is free from wrong. If she is deprived of any rights, it results from no wrongful act of hers, but from the misconduct of another. The rights of the first wife are not involved in this proceeding. Appellant has no claim upon the bounty of deceased, and, in so far as her rights are dependent upon the fact that he has been guilty of a violation of the laws of the land, the principles of natural justice require that the evidence to that effect should be sufficiently convincing to admit of no other reasonable hypothesis. In such circumstances appellee is entitled to a broad application of the rule that ‘the law presumes morality, and not immorality; marriage, and not concubinage’; Teter v. Teter, 101 Ind. 129, 71 Am. Dec. 742. Considering- tlie strong presumption which the law raises in favor of the innocence of appellee and the validity of her marriage with deceased, * * * and that legal divorce proceedings might have been instituted and terminated in his favor without process being received by her, we are of opinion that this testimony is insufficient to establish that deceased was not divorced from his first wife at the time he contracted marriage with appellee. As this conclusion is fairly deducihle without considering the testimony introduced on behalf of appellee relative to what deceased told her regarding his former marriage and its dissolution, it follows that the reception of this evidence, even if error, was not prejudicial, because it could not affect the result.”

From these authorities we feel justified in again stating the law to be that, where a second marriage is established in form according to law, a presumption arises in favor of its validity as against a former marriage, even though the husband or wife of the former marriage is living at the time, and that this presumption is not overcome by the presumption of law in favor of the continuance of the first marital relation, coupled with the testimony of the former spouse that he or'she has not obtained a divorce, and has no information as to whether the other spouse had obtained a divorce, and the testi mony of the clerk of the divorce court where the deceased spouse had some time lived, that no divorce had been granted such spouse in such court.

We cannot say therefore that the decree of the chan- - eery court is against the preponderance of the evidence, and the judgment is accordingly affirmed.

Hart, O. J., dissents.


text:
    Young v. Farmers' Mutual Life Insurance Company.
    Opinion delivered January 9, 1928.
    Insurance — classification of beneficiaries of assessment society. —Classification of a mutual benefit society for the purpose of assessment of death benefits into white and colored divisions, held not unreasonable under the provisions of Acts 1925, c. 139, § 2, requiring combination of groups or circles in certain cases.
    Appeal from Hot Spring 'Chancery Court; W. R. Duffle, Chancellor;
    affirmed.

      J oseph Callaway, for appellant.

      John L. McClellan, for appellee.
   McHaney, J.

Appellee is engaged in the life insurance business on the pro rata assessment basis. It had no circles, but had two divisions, one composed of white people and the other of colored. When a death occurred in either division, an assessment was levied against the members of that division up' to one thousand to pay the face of the policy. When another death occurred, it assessed the next one thousand, and so on through the membership of that division. Appellant, Cornelia Young, is the widow of Isaac Young, who carried a policy with appellee in the colored division, by which appellee agreed to pay appellant, as beneficiary, within thirty days after the receipt of satisfactory proof of death of the insured, the sum of $1,000, subject to the rules and regulations of appellee, which were set out in the pulicy, which contains the following provision:

“This company is founded and policy issued upon the assessment plan. The object is to give the members-insurance at the lowest possible cost. It will be the object to hold all members in one class to always insure a full payment of death claims. Upon notice of a death, starting at the head of the list, a sufficient number of members will be called to pay the claim; the next death, another section will be called in like, manner, until the round is made, and no member shall be called twice until all members shall have been called. In case a member should die before the total membership in good standing shall have reached one thousand, or should one membership he reduced to a number below one thousand, then in that event it is understood that a membership is only-due said member one dollar for each of said members in good standing* at the time of his death.”

At the time of the insured’s death there were only thirty-nine members in good' standing in the colored division, and on receipt of the proof of loss appellee tendered to appellant $39 in full settlement of all claims against it, which was refused. -She thereafter instituted this suit, by which she sought to compel appellee to consolidate the two divisions, whites and colored, and to recover against appellee for $1 per member for both divisions. On a trial of the case the chancellor found that appellant was entitled to recover only $39, * and that, appellee having tendered appellant this sum of money in open court, she was entitled to recover her costs up until the date of such tender, and was liable for the costs thereafter, and entered its decree accordingly, from which is this appeal.

We think the judgment of the trial court is correct and must be sustained. Appellant had always done business on the same plan it is now doing business. It had always kept the records of the two divisions, whites and blacks, separate and distinct. No person in the white division was ever called upon to pay a death claim occurring in the colored division, and neither was a person-in the colored division called upon to pay for a death in the white division. The insured fully- understood this plan, of operation, and the by-law adopted on August 31, 19-25, did not change the policy of the company in this regard. The insured was advised of this plan in the letter of McDowell on September 16, 1925, and continued thereafter to be a member until his death on the 21st day of February, 1926, without ever questioning the policy of the company in this regard.

The principal contention of appellant seems to^ be that, under provisions of act 139 of 1925, sub-section D of § 2, appellant was required to assess all the members, both white and black, up to the face value of the policy to pay for a loss. The last sentence in this sub-section is: “Such association shall combine all groups or circles which are in existence at this time and are not up to the maximum, and all groups or circles shall be kept up to the maximum.” The answer to this contention is that appellee did not have any groups or circles to combine, but had two divisions, according to color, and we do not think the Legislature had in mind any such contemplation as is contended by appellant. The classifications according to color are not unreasonable, and the act in question has no. application to such classification as appellee made.

It is further contended by appellant that, under the terms of the policy, appellee is liable for $784 on account of the language of the policy heretofore quoted. But not so, as that language refers to all the members in a division, and not to the membership as a whole.

It follows that the judgment of the chancery court is correct, and it is therefore affirmed.


author: Hart, C. J.

text:
    Bowlin v. State.
    Opinion delivered January 16, 1928.
    1. Criminal law — validity of conviction. — -The validity of a conviction of a criminal offense is not affected in any manner by reason of the fact that there was no money in the county treasury to pay jurors and witnesses.
    2. Constitutional law — .due process. — .One convicted of a felony was accorded due process of law where he was convicted at a trial in the circuit court held at the time and place and in the manner prescribed by law, and had an opportunity to make all defenses which he had and to have present all witnesses in his behalf.
    3. Witnesses — impeachment on cross-examination.. — -One on trial for a felony may be cross-examined as to how many times he had been fined and pleaded guilty for fighting or other offenses in the county since he had lived there.
    4. Criminal law — cross-examination of defendant — harmless error. — Cross-examination of defendant in a criminal case, as to how many times he had been fined and pleaded guilty for fighting or other offenses in the county since he had lived there, if error, held harmless, in view of his answer that he had not been fined in the last two years.
    5. Criminal law — repetition of instructions. — Refusal of an instruction asked by defendant was not error where the court in its instructions fully and fairly submitted the respective theories of the State and the defendant.
    6. Criminal law — weight and credibility of testimony. — The weight and credibility of testimony is a matter for the determination of the jury.
    7. Criminal law — sufficiency of evidence. — In determining whether evidence is sufficient to sustain a conviction the evidence must be considered in the light most favorable to the state.
    8. Rescue — sufficiency of evidence. — Evidence held sufficient to sustain a conviction of rescuing a prisoner from lawful custody in violation of Crawford & Moses’ Dig., § 2571.
    Appeal from Johnson Circuit Court; J. T. Bullock, Judge;
    affirmed.

      Jesse Reynolds, for appellant.

      E. W. Applegate, Attorney General, and John L. Carter, Assistant, for appellee.
   Hart, C. J.

John Bowlin prosecutes this appeal to reverse a judgment of conviction against him for rescuing one who was in custody after' a lawful arrest, in violation of the provisions of § 2571 of Crawford & Moses’ Digest.

The first assignment of error is that the court had no jurisdiction of -the case, because there were no funds in the county treasury of Johnson County for the purpose of 'holding circuit court at the time the trial of the defendant was had. This assignment of error is not well taken. The defendant was prosecuted and convicted at a trial in the circuit court of Johnson County, which was held at the time and place and in the manner prescribed by law. He had an opportunity to make all the defenses which he had to the indictment and to have present in court all the witnesses in his behalf. This constituted due process of law. The fact that there was no money in the treasury to pay the jurors and witnesses did not in any manner affect the legality of the trial. This was a collateral issue, and could not affect the jurisdiction of the court ór the legality of the proceedings at the trial.

The next assignment of error is that the court allowed the prosecuting attorney to ask the defendant the following question: “How many times have you been fined and pleaded guilty for fighting, or other offenses in Johnson County since you have lived here?” The defendant answered that he had not been fined in the last two years. In the first place, it may be said that the question was a proper one on cross-examination, as affecting the credibility of the defendant as a witness. Whittaker v. State, 171 Ark. 762, 286 S. W. 987. Besides, the defendant answered the question in the negative, and no prejudice could have resulted to him from the question when it was considered in connection with his answer.

It is next insisted that the court erred in instructing the jury. Objection was made by the defendant to the giving of several instructions to the jury and in refusing to give an instruction asked by him. We do not deem it necessary to set out these instructions or to comment upon them at length. The defendant was indicted under § 2571 of Crawford & Moses’ Digest. The court read the statute to the jury, and fully and fairly instructed the jury upon the doctrine of reasonable doubt and the credibility to be given to the witnesses. The court, in other instructions, fully and fairly submitted to the jury the respective theories of the State and of the defendant. The instructions were very full, and were fair to the defendant.

The main reliance of the defendant for a reversal of the judgment is that the testimony was not legally sufficient to warrant the verdict. It is true that, according to the testimony of the defendant and of his witnesses, he only attempted to persuade the officers to let him take his brother home instead of putting him in jail, and that he finally interfered because he thought the deputy sheriff was going to shoot his brother, whom he was charged with rescuing from the deputy sheriff. Under our juclioial system the jury are the judges of the credibility of the witnesses and the weight to be given to their testimony. Hence, in determining the legal sufficiency of the evidence to support the verdict, we must consider the evidence in the light most favorable to the State. When this is done, it cannot be said that the evidence for the State has no probative force which would warrant the jury in returning a verdict of guilty.

According to the evidence for the State, a deputy sheriff oí Johnson County arrested Jim Bowlin, a brother of John Bowlin, and started with him to jail. While they were on their way to jail, John Bowlin overtook them and told the deputy sheriff that he was going to take his brother back with him. He told the deputy sheriff that he was not going' to allow him to take Jim Bowlin to jail. Finally Jim Bowlin threw down his hat, stated that he was not going to .jail, and started to run. John Bowlin jumped in front of the deputy sheriff, and grabbed at the shotgun which he carried. The deputy sheriff then hit John Bowlin with his gun, and Jim Bowlin ran off a little ways. John cursed the officers, and kept telling them that they could, not take his brother to jail.

Other witnesses for the State testified that, when John Bowlin overtook the officers, he told them that they could not take his brother Jim to jail, and that he was not going to have the officers going after Jim with a shotgun. Jim Bowlin was drunk, but insisted that John should go back home. John Bowlin replied that he would not do so, and told the officers that he was going to take Jim back home with him. ' When Jim Bowlin started to run, John Bowlin made a pass at the deputy sheriff; then the deputy sheriff struck him with his gun.

According to the testimony of other witnesses, John Bowlin seemed to be mad because the officers had a shotgun when they arrested his brother, and John repeatedly told the officers that they could not take his brother to jail. When Jim Bowlin started to run, John Bowlin jumped between the deputy sheriff and Jim. When he did this, the deputy sheriff struck John Bowlin with his gun.

Under these circumstances it was a question for the jury to determine whether or not John jumped in front of the officers to prevent them from shooting his brother or whether he did so to rescue his brother from the custody of the officers. Hence, when the evidence is viewed in the light most favorable to the State, it was legally sufficient to- warrant a verdict of guilty.

We find no prejudicial' error in the record, and the judgment will therefore be affirmed.


author: Hart, C. J.,

text:
    Crawford County v. Simmons.
    Opinion delivered January 16, 1928.
    1. Highways — petition for change op road — presumption on collateral attack. — On collateral attack an order of the county court changing a public road under Acts Sp. Sess. of 1923, p. 84, § 69, could not he held void because it was not signed by the State Highway Commission, but was signed by an engineer of that department, since it will be presumed that the engineer had a right to sign the petition for the State Highway Commission, and that he did so.

      2. Highways — change of road — notice to landowners. — An order of the county court for the change of a public road on petition of the State Highway .Commission under Acts S!p. Sess. of 1923, p. 84, § 69, and Crawford & Moses’ Dig. § 5249, was not void because no notice was given to the landowners.
    3. Eminent domain — taking property for public use — payment.— An order of the county court for the change of a road under Crawford & Moses’ Dig., § 5249, and Acts of the Sp. Sess. of 1923, p. 84, § 69, giving landowners within one year after date or the order laying out the road the right to file claims in the county court and have an assessment of damages, and providing that direct payment shall be paid out of the county treasury, was not void as a taking private property for public use without compensation, since payment for taking private property for construction of public roads need not precede the taking of the property.
    4. Eminent domain — right of landowners to enjoin construction of highway. — To give equity jurisdiction of- a suit by landowners to enjoin the taking of their lands for highway purposes on the ground that they had no adequate remedy at law, where the payment did not precede the taking of their property, plaintiffs were required to allege and prove that there was no sure and certain way for them to ibe paid.
    5. Eminent domain — taking of land for road — burden of proof. —In a suit by landowners to enjoin the county and the State Highway Commission from entering on their lands and laying out a highway, the ¡burden was on plaintiffs to prove that there were no funds on hand in the county treasury with which to pay their claims for damages, since solvency of the State and her political subdivisions is presumed, in the absence of a showing to the contrary.
    Appeal from Crawford Chancery Court ; J. V. Bout- ' land, Chancellor;
    reversed.
    STATEMENT OF FACTS.
    J. H. Simmons and other landowners of Crawford County brought this suit in equity against Crawford County and Dwight Blackwood as State Highway Commissioner, to enjoin them from entering upon their lands and laying out a new highway on them for the purpose of changing the part of the public road of Crawford County which is a part of State Highway No. 71, and-under the control of the State Highway Department.
    According to the allegations of the complaint, on the 20th day of September, 1927, Dwight Blackwood, as State Highway Commissioner, filed a petition in theCrawford County Court asking that the location of Highway No-. 71 be changed as set out in the petition. The change provided for caused the highway to be altered so as to be constructed over and through the lands of the plaintiffs, thereby destroying their crops and orchards) and taking and damaging their lands, without first giving them notice of the filing of the petition, or without making compensation to them for the damages sustained by the taking of their lands for the purpose of altering said Highway No. 71. The petition for the change and alteration of said public road is made an exhibit to the petition,' and. is signed State Highway Commission for the State of Arkansas, by W. W. Mitchell, assistant State Engineer.

      Oil the 3rd day of'October, 1927, the petition was presented to the county court, and the changes asked for are specifically set out in the order granting the prayer of the petition.
    It was adjudged by the county court that the changes petitioned for should be made in State Highway No. 71 as located and described in the petition and in the order granting the prayer of said petition. It was further ordered that any landowner who was affected by the order, and who was damaged by reason of the change of the road to be constructed over his land, must present his claim to the county court within one year from the date of the order, or be forever barred. The plaintiffs allege that their damages are in excess of $10,000, and thiat the defendants are undertaking to enter upon their land and construct said public road without first paying the damages suffered by the plaintiffs. ' The complaint further alleges that Crawford County is without funds to pay the plaintiffs the damages suffered by them by the laying out of the road over their laiid.
    The defendants denied that they have failed to provide just compensation to the plaintiffs for any damage suffered by them by the location of said public road over their lands, and aver-that Crawford County has on hand appropriations made by the quorum court out of its general funds sums sufficient to pay all claims of the plaintiffs. In another paragraph of the answer they say it is not true, as alleged in the complaint by the plaintiffs, that Crawford County is without funds wherewith to pay all claims of the plaintiffs arising out of the condemnation of their lands for said public road. The answer also contains the following:
    “They deny that the claims for damages will be in excess of $10,000, and deny that damages have accrued or will accrue to plaintiffs and to all claimants affected by changes in section 15 of United States Highway No. 71, described in plaintiffs ’ complaint, which will approximate the sum of $10,000. They say that, even if said claims should amount to $10,000, and even if the legally determined damages should be in excess of said amount, Crawford County has on hand sufficient funds to pay all of said damages. That it has in its general funds $3,000, which can be used for such purpose, and the sum of $7,500 appropriated by its quorum court for roads and bridges, and that it has at its disposal private donations in excess olf $1,000.”
    The chancery court found the issues in favor of the plaintiffs, and the defendants were enjoined from attempting to enter on the lands of the plaintiffs and from constructing a road according to the plans and specifications set forth in the petition filed in the county court. The case is here on appeal.

      George Stochard, Daily & Woods-, Hill, Fitzhugh Brizzolara, H. W. Applegate, Attorney General, and Claud Duty, Assistant, for appellant.

      Dave Partahn, for appellee.
   Hart, C. J.,

(after stating the facts). The record shows that a public road under the charge of the State Highway Commission was changed in Crawford County so as to be laid out and constructed over the lands of the plaintiffs. The change in the location of the road wa.s made pursuant to the provisions of § 5249 of Crawford & Moses’ Digest. The petition for the change in the location of the road was made by the State Highway Commission under the provisions of § 69 of act 5, passed by a special session of the Legislature in 1923. Acts of 1923, Special Session, p. 11. Under the provisions of § 69 the State Highway Commission is authorized to call upon the county court to change or widen, in the manner provided by § 5249 of Crawford & Moses’ Digest, any State highway in the county where the State Highway Engineer deems it necessary for the purpose of constructing’, improving’ or maintaining the road.

It is first contended that the order of the county court is void because the petition for1 the change of the road was not signed by the State Highway Commission, but was signed by an assistant engineer of that department. This is not a direct attack upon the order of the comity court by appeal, but is a collateral attack upon the order made in the chancery court. Hence there is a presumption that the State Engineer had a right to sign the petition for the State Highway Department, and that he did so. Morrow v. Mock, 151 Ark. 392, 236 S. W. 610.

Again, it is insisted that the order is void because no notice was given to the landowners. This contention of the plaintiffs has been settled against them by the ruling of this court in Sloan v. Lawrence County, 134 Ark. 121, 203 S. W. 260. In the construction of § 5249 relative to the laying out or altering of public roads, it was held valid in >so far as it provides for the taking of private property by the order of the county court for a public road, without notice to the interested landowners, or a determination for the necessity thereof. The court said that the power of eminent domain may be exercised by the State without notice to the interested landowners, because the necessity of condemnation for public use is a political one, and not one for judicial determination.

The soundness- of this decision is questioned by the plaintiffs, but we will not -again review the authorities on the subject, because we consider the matter a closed one in this State. In the decision just cited the court recognized that there was a conflict in the decisions, and deliberately adopted the rule announced in the case. Two of the Judges dissented, thereby showing that the question was thoroughly considered. The rule announced in that case has been reaffirmed by subsequent decisions of the court. Burns v. Harkington, 162 Ark. 162, 257 S. W. 729; Independence County v. Lester, 173 S. W. 796, 293 S. W. 743; and Casey v. Douglas, 173 Ark. 641, 296 S. W. 705. Therefore we hold that the contention of plaintiffs, that there was no notice of the proceeding to lay out the road over their lands, can avail them nothing. The order of the county court gave the landowners, within one year after the date of the order laying out the road and entering of their lands, the right to file their claim in the county court and have ¿n assessment of damages by prescribed legal proceedings, and direct payment was to be made them ont of the county treasury.

But it is insisted hy counsel for the plaintiffs that this action permits the tailing of private property for public use without making compensation therefor, as provided in our Constitution. This- point, too, has been settled against the contention of the plaintiffs in the case of Barton v. Edwards, 120 Ark. 239, 179 S. W. 354. In that case it was expressly held that the payment for the taking of private property for the construction of a public road need not precede the taking of the property. There again it was recognized that there is a conflict in the authorities; but the court held that, while compensation must actually be made or the means provided by which it can certainly he obtained, where property is taken for -a public use by the State itself or by one of its duly authorized subdivisions, the taxable property thereof constitutes a fund to which the owner may resort in the way pointed out hy law, and the existence of a method by which payment may thus be compelled, satisfies the constitutional requirement. In one of the cases cited in the opinion it is said that the pledge of the faith and credit of the State, or of one of its political divisions, for the payment of the property owner, accompanied with practical and available provisions for securing the application of the public faith and credit to the discharge of the constitutional obligation of payment, has been held to be a certain and sufficient remedy within the law. For this reason it was held by us that compensation for the taking’ of property for a public road may be made in county warrants which are below par in value. The court pointed out that county warrants are receivable for county taxes, and the policy of the law is to give them the greatest facility of 'circulation. It is also pointed out that the landowner has a clear legal remedy to compel the levying of an appropriation of funds to pay the award. Thus it will be seen that this court has deliberately held that a statute which authorizes a political division of the State to take private property for public use, if it provides an adequate process for ascertaining and paying the value of such property, is constitutional. It is considered that, when an adequate fund is provided from which payment is to he made hy a political subdivision of the State, this is equivalent to actual compensation.

This view of the matter was substantially reaffirmed in Morrow v. Mock, 151 Ark. 392, 236 S. W. 610, where it was held that equity will not restrain the attempted enforcement of a judgment where the remedy at law is complete. In oases of this sort the landowner has a clear remedy at law, because he might present his claim to the county court for damages, and take an appeal from any ruling considered adverse to his interest. Under the order of the county court, the landowner was entitled to payment out of the county treasury, after the amount of his damages had been ascertained.

But it is contended that this is not a certain and safe means of payment, under the decision of Independence County v. Lester, supra, and Casey v. Douglas, supra, in the construction of Amendment No. 11. In Independence Co. v. Lester, supra, there was an affirmative showing in the record that there were no funds in the county treasury out of which the landowner might be paid. The county court, according to the pleadings and the agreed statement of facts in £he record in that case, had condemned land for a highway, and at the same time had refused to allow the landowner compensation, on the ground that the court was without authority to- allow the claim because the fiscal year had expired and the revenues were exhausted. Under the facts there stated, the landowners would have no remedy whatever. All of the available funds in the county treasury had already been used for the various running expenses of the county government under the provisions of the appropriation made by the quorum court.

Again, in Casey v. Douglas, supra, the court, in effect, held that the county court could not take the property of the landowner without first paying him damages, where the order contemplated that the payment of damages should he made by private individuals. The reason is that, in such case,- the faith and credit of the county is not pledged, and the record contained an affirmative showing that the damages and compensations were to be paid out of a special fund provided by landowners. In this state of the record, the taking of the land would not be proceeded with until the fund was deposited in the county treasury for the purpose of paying the damages. The mere fact that private individuals might have sufficient funds on hand, pledged to pay the damages, does not meet the constitutional requirement.

In the application of these principles, in order to invoke the jurisdiction of a court of equity, the plaintiffs must allege and prove that the annual revenue of the county from the levying and collection of county taxes is insufficient to pay the landowners, after meeting all the demands upon the general county revenue fund under the specific appropriations of the quorum court for the current year. In other words, in order to give courts of equity jurisdiction on the ground that the plaintiffs had no1 adequate remedy at law, it devolves upon them to show that there wias no sure and certain way for them to be paid. Plaintiffs did not meet this requirement by simply alleging such a fact to be true. The answer specifically denied this to be true. It is true that it contains an averment that there are'certain funds on hand out of which the payment might be made, and ■ the plaintiffs pointed out that these funds have been exhausted. These matters, however, should be shown by the proof. It is not sufficient merely to allege them. The solvency of the State and her political subdivisions is presumed, in the absence of a showing to the contrary. Zimmerman v. Canfield, 42 Ohio St. Reps. 463; Talbot v. Hudson, 16 Cray (Mass.) 431; Hill v. United States, 9 How. 386, 13 L. ed. 185; and Mills on Eminent Domain, § 126.

Hence it did not devolve upon the defendants to show that there were sufficient funds on hand in the county treasury to pay the claims of the plaintiffs for compensation, but the burden wias upon the plaintiffs to prove that there were no funds on hand in the county treasury with which to pay their claims for damages.

' Having failed to make such a showing, the chancery court- erred in restraining the defendants from proceeding to enter upon the lands, of the plaintiffs and constructing the road. Fior that reason the decree will be reversed, and the cause will be remanded, with leave to the plaintiffs to introduce proof that there were not sufficient funds on hand in the county treasury to pay their claims for damages, if they are advised to take sudh a course; and the ¡chancery court is directed to take such further proceedings as are consistent with the principles ¡of a court of equity and not inconsistent with this opinion. It is so ordered.


text:
    Hill v. McClintock.
    Opinion delivered January 16, 1928.
    1. Highways — proceeding to vacate road — parties.—In a proceeding in the county couft to vacate a public road, a citizen and taxpayer has the right to he made a party and to appeal from an adverse ruling of the county court.
    2. Highways — petition to vacate road — right to withdraw names OF petitioners. — Citizens and taxpayers who signed a petition to vacate a road were entitled to withdraw their names before the county court acted on the petition, where the withdrawal of their names did not affect the court’s jurisdiction.
    3.. Highways — petition to vacate road — right to withdraw names. — 'Where citizens and taxpayers signed a petition to vacate a road upon a misrepresentation of fact, they had a right to correct their mistake by withdrawing their names, before the petition was acted on by the county court.
    4. Courts — appeal to circuit court — waiver of requirement of bond. — -On appeal to the circuit court from an order of the county court vacating a public road, appellees by consenting to a trial on the merits, waived a ruling on a motion to dismiss because appellant had not filed the appeal bond required by Crawford & Moses’ Dig., § 5241.

      5. Highways-^procedure IN' VACATING road. — A proceeding to vacate a public road is governed by Crawford & Moses’ Dig., § 5247, providing that, when any county road shall be considered useless, ten citizens may petition the county court to vacate same, ■but not by § 5249, authorizing the court to open new roads and to make changes in old roads.
    6. Highways — procedure in vacating road. — In a proceeding, to vacate a road under Crawford &l Moses’ Dig., § 5247, failure to give notice of the proceeding and failure to appoint viewers, as required under the statute, held to render the order vacating the road erroneous.
    7. Highways^ — authority op court to- vacate road. — Under Crawford & Moses’ Dig., § 5247, providing that on petition of ten citizens the county court might vacate a road when it shall be considered useless, the court cannot arbitrarily vacate a road without finding that it has become useless.
    8. Evidence — judicial notice — navigability op stream. — The court will take judicial notice that White River is a navigable river.
    9. Highways; — validity op order vacating road. — On appeal from the circuit" court’s judgment affirming the county court’s order vacating a public road, evidence held to show that the road in question was not useless, and hence the judgment was erroneous under Crawford & Moses’ Digest, § 5247, providing that a road may be vacated when it shall be considered useless.
    .Appeal from Prairie Circuit Court, Northern District ; W. J. Waggoner, Judge;
    reversed.
    STATEMENT OF FACTS.
    On the 23d day of July, 1927, J. M. MoClintock and 104 other persons, citizens and taxpayers of the Southern District of Prairie County, Arkansas, filed a petition in the county court to vacate the east and west ends of the public road connecting with the bridge across White River near De Vails Bluff, in said comity. The part of the road asked to be vacated which connected the west end of the bridge with the improved road is 794 feet in length, and the part of the road asked to" be vacated which connected the east end of the bridge with the public road is 1,356 feet in length. No notice of the time of presenting the petition was given. On the 25th day of July, 1927, a remonstrance signed by Gr. P. Hill, a citizen and taxpayer of said county, and 75 others who signed the original petition, was filed in the county court. Hill and the other persons who signed said remonstrance alleged in it that they had signed the original petition for the vacation of the road because it was represented to them that the road sought to be vacated was that part of the road leading from the main public highway to the old ferry which had been owned and operated by J. M. McClintock. The county court made an order vacating the road, as asked for in the petition.
    On the 27th day of July, 1927, G. P. Hill and four other persons who had signed the remonstrance filed an affidavit for an appeal to the circuit court from the order vacating said public road. J. M. McClintock filed a motion in the circuit court to dismiss the appeal, on the ground that the parties who. took the appeal had signed the original petition, and because they had failed to file bond for appeal within ten days, .as provided by § 5241 of Crawford & Moses’ Digest.
    In the circuit court no action was taken on the motion to dismiss the appeal, but the case was tried upon the facts stated above and upon a written stipulation filed by the parties. The written stipulation contains a definite and particular description of the road to be vacated, which connects the east and west approaches to the bridge over White River near DeVails Bluff, in the Southern District of Prairie County, Arkansas, with State High-, way No. 70. It is further agreed .that said road is a part of the State Highway system and under its control and management, and is known as a part of the Bank-head Highway, designated No. 70 by the United States Government and by the State Highway Department. The stipulation recites that it is to be used as evidence in the trial of the cause in the circuit court in the Northern District of Prairie C'ounty.
    The circuit court found the issues in favor of J. M. McClintock, and it was ordered and adjudged that the order of the county court be affirmed. The case is here on appeal.

      H. W. Applegate, Attorney General, Hal Norwood, Assistant, Robinson, House Jh Moses and John D. '$ Cooper Thweatt, for appellant.

      Emmet Vaughom and J. F. Holtzendorff, for appellee.
   Hart, C. J.,

(after stating the facts). In proceedings of this sort a citizen and taxpayer has a right to he made a party to the proceedings in the county court 'and to appeal from an adverse ruling of the county court relative to the vacation, alteration or establishment of roads. Johnson v. West, 89 Ark. 604, 117 S. W. 770; and McMahan v. Ruble, 136 Ark. 83, 204 S. W. 746, and cases cited.

But it is insisted that Hill had no such right, because he signed the original petition for the vacation of the road. The record shows that, before the original petition was acted upon, Hill and other persons who had signed the original petition asked that their names be withdrawn, before the court took any action on the petition. The withdrawal of the name of Hill and the names of the other persons did not affect the jurisdiction of the court, because there was still left upon the petition more than ten names, as required by the statutes. Under these circumstances it has been generally held that names may be withdrawn at any time before the tribunal in which the petition is filed in some way acts or determines the sufficiency of the petition. Elliott on Roads and Streets, '4 Ed., vol., 1, paragraph 374. Numerous cases from the courts of last resort of several States are cited in support of the doctrine.

There is no analogy between proceedings of this sort and proceedings to form local improvement districts in cities and towns under the provisions of our Constitution. In such a case our Constitution provides that such improvement district can only be formed where a majority in value of the property owners have signed the petition. The act of signing the petition is in the nature of an election, and is an irrevocable act, because the signing of the petition is in the nature of casting a ballot at an election. A signer of a petition for the establishment of an improvement district cannot revoke Ms act except for cause shown.

In the present case more than ten names, as required by the statute, were left on the petition, and it cannot be doubted that Hill and the other remonstrants might withdraw their names at any time before the petition had been acted upon by the county court. Each petitioner acted on his individual responsibility, and, if he should change his mind on the question of whether the road should be vacated or not, he had a right to do so at any time before the county court acted upon the petition. Besides this, the record shows that Hill and the other remonstrants signed the petition upon the representation that the road described in it was the old road leading from' the main public road to the ferry formerly owned and operated by J. M. McClintock. When they found out that they had signed the petition upon a misrepresentation of fact and that the road in question was the one leading to the east and west approaches of the bridge across White River, they had a right to correct their mistake, because the petition had not been acted on by the county court before they withdrew their names.

In the circuit court J. M. McClintock filed a motion to dismiss the appeal because Hill and the other parties to the appeal had not filed the appeal bond required by § 5241 of Crawford & Moses’ Digest. McClintock did not ask or obtain a ruling upon his motion to dismiss the appeal, but, on the other hand, went to trial in the circuit court on the merits of the case. Under our system of pleading he will be deemed to have waived a ruling on his motion to dismiss the appeal and to have consented to the jurisdiction of the circuit court to try the case. Parker v. Wilson, 98 Ark. 553, 136 S. W. 981, and Pratt v. Frazer, 95 Ark. 405, 129 S. W. 1088.

It is next insisted that the giving of the appeal bond was a prerequisite to the exercise of jurisdiction by the circuit court, and could not ¡be waived. We do not agree with this contention. The giving of the appeal bond was for the benefit of McClintock and the other petitioners to the vacation of the road, and might be waived by them. The only purpose of the bond in the present case would have been for the payment of the costs of the case. If McClintock wished to avail himself of his right under the statute to have the appeal bond given, he should have insisted upon the circuit court acting upon his motion to dismiss the appeal. Nemier v. Bramlett, 103 Ark. 209, 146 S. W. 489, and Free v. Maxwell, 138 Ark. 489, 212 S. W. 325, where it was held that, where no affidavit for appeal was filed before an appeal was granted by the probate court, appellee waived the filing thereof by proceeding* to trial in the circuit court without objection on that account. By analogy, the appeal'bond required by the statute, being for the benefit of the appellee, might be waived by him. Appellee must be held to have waived a provision of the statute for his benefit to which he gave no attention until after the ease had gone to trial on its merits. His stipulation of facts and his agreement to try the case on the merits were sufficient waiver of his right to require the appeal bond under the statute.

It f ollows that the circuit court had .jurisdiction of the case, and this brings us to a consideration of the trial of the case in the circuit court on its merits.

The- record shows that no notice was given of the proceeding*'and that no viewers were appointed, and consequently no viewer’s report was made in favor of vacating the road, as required under § 5247 of Crawford & Moses’ Digest. It is contended, however, by counsel for appellee, that this is a proceeding under § 5249 of Crawford & Moses ’ Digest, and that no notice was necessary, under the ruling of Sloan v. Lawrence County, 134 Ark. 121, 203 S. W. 260. We do not agree with this contention of counsel for appellee. Section 5249 confers upon the county court authority to. open new roads and to make such changes in old roads as they may deem necessary and proper. Section 5247 provides that, when any county road or -any part of any county road shall be considered useless, any ten citizens residing* in that portion 'of the comity may make application by petition to the county court to vacate the same. Thus it will be seen that the two sections of the statute operate in entirely different fields. There is a material difference in laying out a new road 'and making* changes and alterations in a public road, and in vacating it.

In Thompson v. Crabb, 6 J. J. Marsh. (Ky.) 222, it was said that there is. a palpable distinction between the alteration and the discontinuance of a public highway. In the one case the road is kept up, leading to the principal points, although it may be, by alteration, upon different ground from that on which it was first located. In the other it is abolished altogether, the authorities are exempted from keeping it in repair, and it may be stopped up entirely. Hence it was said that the Kentucky statute providing for a discontinuance of an established road did not apply to the ease of an alteration.

In the case at bar we are of the opinion that the proceedings was under § 5247, providing for the vacation of roads under certain conditions, and that the court erred in vacating' the road, for the reason that the provisions with regard to notice and the appointment of viewers provided by the statute were not complied with.

The judgment vacating the property was erroneous for another reason. It will be noted that § 5247 provides that, when any county road or any part of any county road shall be considered useless, it may be vacated by a proper petition filed in the county court. Under the statute the portion of the road could only be vacated when it was considered useless. The question of whether the part of- the road asked to be vacated had become useless was one of fact to be determined on the evidence. The question of the utility or non-utility of the part of the highway asked to. be vacated was therefore one for judicial determination, which could not be arbitrarily exercised by the county court.

The undisputed evidence shows that the part of the road asked to be vacated connected the east and west approaches to the bridge over White River with, the Bankhead Highway, which is a part of the State system of highways, and is one which receives aid from the United States. The court will take judicial notice' that White River is a navigable river, and, if the approaches of the public road which connect with the bridge across that river should be vacated, the use of the whole road would be materially affected, and the use of the bridge as a means of crossing the river would be entirely abolished. Therefore it will be seen that, as long as the bridge is used as a part of the State Highway and as a means of crossing White River, the public road leading to the bridge on each side of it cannot, in the very nature of things, be considered useless, and it was erroneous for the county court to so hold. As a practical matter, those parts of the public road which are used as approaches to the bridge can never be considered useless as long as the (bridge is a part of the public highway for crossing White River. The circuit court affirmed the judgment of the county court vacating the road, and thereby adopted the view of the matter held by the county court, and committed error in so holding.

Other questions are pressed upon us for a reversal of the judgment, but the views which we have expressed are conclusive of the case. Hence it is not necessary to state, consider or determine the other questions relied upon by counsel for appellants for a reversal of the judgment.

It follows that the judgment will be reversed, and the cause will be remanded, with directions to the circuit court to reverse the judgment of the county court vacating the road in question, and to certify its judgment down to the county court, to the end that the judgment of the circuit court may be adopted by the county court and entered upon its record as the judgment of the county court. That is to say, the judgment of the circuit court will be that the order of the county court vacating the road in question will be reversed, and the county court ordered to dismiss the petition of J. M. MeClintock and others asking for a vacation of the public road in question. It is so ordered.


author: Smith, J.

text:
    Greene County v. Hayden.
    Opinion delivered January 16, 1928.
    1. Eminent domain — notice of taking land. — While a statute may he constitutional which contains no provision for notice to a landowner as to the necessity for taking his land for public use, a statute would be unconstitutional, which, after taking his land, made no provision for notice to the landowner in the matter of fixing compensation.
    2. Eminent domain — taking of lands for road — limitation.— Where the county court, without notice to landowners, entered an order in June, 1924, condemning land for a public road, but made no attempt until January, 1926, to put the order into effect, at which time the road was surveyed and laid out, claims of landowners for damages filed in April, 1926, were not barred by the one-year limitation in .Crawford & Moses’ Dig., § 5249, since the owners were not charged with notice of the order of condemnation until the county took their property thereunder.
    Appeal from Greene Circuit Court, Second Division ; W. W. Bcmdy, Judge;
    affirmed in part.

      Z. B. Harrison, for appellant.

      Jeff Bratton, for appellee.
   Smith, J.

C. H. Hayden, W. T. Lewis, Mrs. M. C. Benton, C. W. Terry and W. H,. Goldman filed separate claims in tHe county court of Greene County for damages arising from an order of tHe county court of that county laying out and establishing a public road over their lands. The county court disallowed the claims, upon the ground that they were barred by the statute of limitations, and an appeal was duly prosecuted by the landowners to the circuit court, where there was a trial (before a jury, and a verdict and judgment in favor of all the claimants, except Goldman.

It appears that the county court on June 6, 1924, made and entered of record an order condemning a public road which runs through the lands of all the claimants. This order was made without notice of any kind, and no action was taken by the county to put the order into effect until January, 1926, when the road was surveyed and laid out in accordance with the order of the county court establishing it. In April, 1926, the landowners filed their respective claims for damages. The oases were consolidated, and tried as a single case in the circuit court, and the landowners asked an instruction to the effect that the statute of limitations against their claims did not begin to run until they had notice that their lands had been condemned by entry thereon to execute the order of condemnation, or until they were otherwise notified that such an order had been made. The 'court refused to give this instruction, but did submit the causes to the jury upon the question of estoppel arising from the conduct of the county judge, except as to the claim of Goldman.

There was testimony on the part of all the claimants, except Goldman, that they had been misled by the county judge as to the order made, this testimony being to the effect that they would be notified by the county judge when the actual survey olf the road would be made and the route of the road located, after which they might present their claims, and would then- be paid such damages as were assessed. % These conversations were had within a year of the date upon which the claims were filed. The court held that no such representations had ¡been made to Goldman, and that he was barred from prosecuting his suit, inasmuch as he had not filed his claim for damages for more than a year after the entry of the order of condemnation. The jury found, under the instructions submitting that question, that the county was estopped, under the representations and. conduct of the county judge, from pleading the statute, of limitations as to the other claimants, and the damages sustained by them were found and assessed by the jury. No complaint is made against the amount of damages thus assessed, but it is insisted, for the reversal of the judgment in favor of those claimants, that their claims were barred because they were not filed within one year from the date of the order of condemnation, and that the court erred in refusing to so instruct the jury. Goldman has appealed from the judgment of the court holding his claim barred.

The county court, in laying out and in ordering the establishment of the road in question, proceeded under the authority of § 5249, C. & M. Digest. This section provides, 'among other things, that the county court shall have power to open new roads and to make changes in old ones, and that, if the owner of the land over which any road is laid out by the court refuses to give a right-of-way, or to agree upon the damages therefor, the owner shall have the right to present his claim to the county court for damages, and, if he is not satisfied with the amount allowed him by the court, a right of appeal to the circuit court is given,- provided, however, that “no claim shall be presented for such damages after twelve months from the date of the order laying out or changing any road; provided, further, that when such order is made and entered of record laying out or changing any road, the county court, or the .judge thereof, shall have the right to enter upon the lands of such owner and' proceed with the construction of such road.” Another proviso relates to the manner of paying the damages, a question not raised or involved on this appeal.

This statute was construed in the case of Sloan v. Lawrence County, 134 Ark. 121, 203 S. W. 260. It was there contended that the act was void, for the reason that it gave the landowner no notice or opportunity to he heard on the right to take and appropriate his land for a public use, or to' be heard as to the compensation which should be paid him as damages for such taldng. The act was upheld as a valid one fey a divided court.. The majority were of the opinion that the landowner has a right to his day in court on the question of compensation, hut that he had no right to a day in court on the question of the appropriation of the land, unless some statute required that notice be given, and that the statute did not so require.

The majority approved the following statement of the law in Elliott on Eoads & Streets, vol. 1, § 224:

“No better summary of the law on this subject and the state of authorities with reference thereto can be found than that of Mr. Elliott (vol. 1, §, 224) in the following’: ■ ‘The Legislature may decide the question of the necessity of appropriating the land, and need not submit that question to any tribunal. It follows from this that, while the Legislature may submit this question to inferior tribunals and may require notice, they are not bound to provide for notice on this question, although they are bound to provide for notice on- the question of compensation. There is therefore a clear distinction between cases involving the right to compensation and cases where the question of necessity is at issue. The rule which applies to the one class of oases cannot, with reason, be applied to the other. Losing sight of this distinction, some of the courts in their reasoning have become confused, and have erroneously intimated that, as notice is not necessary in the one cías» of cases, it is not in the other. It is, however, held in most of the cases which'have given the subject careful consideration that a statute will ibe valid which determines- without any intervention the question of the necessity for the appropriation, or submits it, without providing for notice, to an inferior tribunal, but that a statute which undertakes to determine the question of compensation or to submit it to commissioners or appraisers, without providing for notice, is unconstitutional.’ ”

It thus appears that a statute may be constitutional which contains no provision for notice to the landowner as to the necessity for taking his land, and that the land may be taken for a public use without notice, but a statute would not be constitutional after thus taking the land if no provision were made for notice to the landowner in the matter of fixing the compensation.

The opinion in the case quoted from expressly recognizes the necessity for notice of the hearing when the compensation is fixed, but declares that the statute meets this constitutional requirement. Upon this question it was there said:

“The statute under consideration meets every constitutional requirement. It authorizes the county court to determine without notice the necessity for taking lands for public use, but contains ample provisions concerning notice and hearing upon the question of compensation, or damage, which mean the same thing in that connection. There is no provision for formal notice, but the order itself and the taking of the property thereunder are in the very nature of things acts of such publicity ias to constitute notice, and the property owner is given twelve months within which to apply to the county court for an allowance of compensation, and the hearing is then given on that question. ’ ’

In other words, it was there held that, while the property owner must have notice in order that he may have the opportunity to present, and to be heard in support of his claim for damages, the order of condemnation and the taking of the property thereunder furnishes this notice, although formal notice was not given.

Here the undisputed evidence shows that the order of condemnation was entered in June, 1924, and that the county remained quiescent until January, 1926, at which time the route of the road as described in the order of condemnation was surveyed, but more than a year had then expired since the making and entry of the order of condemnation.

The law does not permit a proceeding of this character to deprive the property owner of his day in court. If it did, the property owner would be deprived of his right to be heard upon the question of compensation, and there is no question, under the Sloan case, supra,, about the existence of this right. No legislation can deprive the landowner of this right. Tet, in practical effect, these landowners have been deprived of that right. Their causes of action were barred under the contention of the county before they were advised that it had accrued.

The order of the county court did not recite the names of the owners of the land over which the road run, and nothing was there said about compensating these owners for their damage. It was not essential that, this should be done, under the case of Sloan v. Lawrence County, supra, to make a valid order; but, upon the authority of the same case, it was necessary and essential that these landowners have the opportunity to present their claims for damage and to be heard in support thereof. Formal notice might have been given, but this was not done, and was not necessary; but, in the absence of f ormal notice, the landowners were not charged with notice of the order oif the court condemning their property until the county, in some way, took the property thereunder. This taking of the property under the court order was the notice which the court said, in the Sloan ease, supra, saved the act from being declared unconstitutional by failing’ to provide notice to the property owner that his land had been taken. The constitutional requirement of notice, whereby the property owner might be heard on the question of damages, was met in that ease because, as was there said, the taking of the. property under the order was itself notice. But if this taking was sufficient notice —and the court held that it was — there was no notice in this manner until there was a taking of the property under the order of condemnation.

It follows therefore that the causes of action were not barred, as the statute did not begin to run against the landowners until they had notice of the order of condemnation by the taking of their land by the entry thereon by the surveyor, and the claims were all properly filed within a year of that time.

As no complaint is made against the amount of damages assessed, the judgments in favor of the landowners who recovered judgments will be 'affirmed; and the judgment dismissing the claim of Goldman will be reversed, with directions to assess any damages he may have sustained.


text:
    Morris v. Bowman.
    Opinion delivered January 16, 1928.
    1. Landlord and tenant — subrogation to landlord’s lien. — Where appellees furnished rice seed to a farmer on a landlord’s promise that the seed should be paid for, and the farmer did not make the payment, and the landlord failed without making such payment, appellees were entitled to benefit of the landlord’s lien and of chattel mortgages taken by the landlord against the rice crop, and to a proportion of the funds derived from a sale of the crop that the debt for seed bore to the total cost of producing the crop. .
    2. Landlord and tenant — when relationship cheated. — The contract providing that a farmer should pay annual rentals for a specified amount for a period of years, and that, if all payments were made and conditions performed, the owner would convey land to the farmer, and that the annual payments should be treated as rent until all payments should be made and other conditions performed, held to create the relation of landlord and tenant until the conditions should be performed.
    3. Landlord and tenant — cost of producing crop. — Where appellees furnishing seed to a farmer were entitled to the benefit of the landlord’s security against the crop, and to the same proportion of the crop derived from the sale of crop that the cost of seed bore to the cost of producing the crop, held that the cost of producing the crop includes the annual rental payments under the contract providing for such rentals, and performance of other conditions under such contract.
    Appeal from Craighead Chancery Court, Western District; Archer Wheatley, Special Chancellor;
    affirmed.

      Cooley, Adams é Fuhr, for appellant.

      Charles D. Frierson, for appellee.
   Smith, J.

'The decree from which this appeal comes contains findings of fact the correctness of which is not questioned, except as to certain details which we think are unimportant, and from which we quote the material facts, which are as follows:

The suit was brought by Bowman & Brown, who are dealers in seed rice, against C.. 0. Wofford, the First National Bank of Jonesboro, and R. S. Morris, as receiver of the bank, to recover the purchase price of a quantity of seed rice sold by the plaintiffs to Wofford in the year 1926. The plaintiffs claim the sale was made to the bank direct, but the court found that the sale was made to Woff ord upon the promise of the bank to advance Wofford the money to pay for the rice. The rice was purchased for the purpose of being planted by Wofford on four rice farms which Wofford was operating, substantially for the use and benefit of the bank, as well as for himself, under separate contracts, one of which covered each of the farms.

The bank furnished Wofford the money necessary to grow the crops of rice, and. had done so prior to 1926, and it was the intention of the parties, including the bank, that payment should be made to Bowman- & Brown in cash for the rice immediately after its delivery, and it is admitted that the bank would have paid for the rice, or have furnished the money for that purpose, but for the fact that it failed, and was taken in charge by a receiver before the payment was made. The bank made advances on the rice crops before its doors were closed. After the failure of the 'bank it was necessary to make other advances to mature and gather the crops, and the receiver himself made certain advances. Other advances were made by three other creditors of Wofford in making’ the crops, under an arrangement made by the receiver after taking charge of the bank, and all parties.concede the priority of the claims of these three last-mentioned creditors.

Wofford was a member of the Rice Growers’ Association, and had a contract with that organization whereby he was required to deliver his rice to1 it for -sale. The court permitted this contract to be performed, and the rice was delivered to and sold by the association, which made a report showing the net proceeds of the sale, and this money is now, in effect, a fund in court, to be distributed as ordered by the court.

The court found the amount dué Bowman & Brown for the rice was $2,726.80, with interest, and that the bank and its receiver had made advances against the rice crop aggregating $30,709'.62, and that the bank had, as security for its advances, the lien of a landlord on the crop of rice grown on one of the farms and chattel mortgages on the other crops of rice. The court deducted from the net proceeds of the sale of the rice, as reported by the Bice Growers’ Association, the advances by the three preferred creditors, and directed that the balance be apportioned between the bank and its receiver, on the one hand, and Bowman & Brown, on the other, in proportion to the advances each had made to enable Wofford to make and gather the crop.

It was ascertained that the indebtedness due Bowman & Brown for the seed rice was .0986 per cent, of the total cost of producing and marketing the rice, and it was ordered that that per cent, of the net proceeds of the rice be paid them, and that as to the balance they have judgment against the bank and its receiver, with the proviso, “that, as against the bank and its receiver, no execution may issue, but said judgment shall participate in dividends and distributions with other general debts and obligations of the bank. ’ ’ From this decree all parties have appealed.

It is immaterial whether the bank agreed to pay for the rice or to furnish Wofford money for that purpose, as the fact is undisputed that, if the bank did not promise to pay Bowman & Brown, the rice was sold upon the faith of the promise of the bank that the rice would be paid for. It is true that the bank has liens upon the rice crop, while Bowman & Brown have no lien, but it was the theory of the court below that the bank was surety for Wofford, and had securities for the repayment of advances to Wofford sufficient to indemnify it for its advances to him in making the crop, and that therefore the rights of Bowman & Brown should be worked out through these securities.

The question of remedy is unimportant here, as we have, in effect, a fund in court, and the question is how •to disburse this fund so as to administer equity. 38 C. J., § 28, page 1382.

The court below found all the indebtedness which had been incurred in producing the rice, and decreed that the persons to whom the indebtedness was due should be paid out of the proceeds of the sale of the rice a per cent, equaling the proportion which a particular indebtedness bore to the whole indebtedness.

It is the insistence of the bank and its receiver' that; as Bowman & Brown had no lien on the rice crop, they should be treated as common creditors of the bank and be required to prove their demand and accept the dividends paid all other common creditors. On behalf of Bowman & Brown it is insisted that they should be paid the entire balance of the purchase price of the rice due them, for the reason that no crop would have been made but for the seed rice which they furnished.

We are of the opinion, however, that the findings and directions of the court below more nearly conform to the equity of the case than do either of tlie contentions of the litigants. We think it would no.t be equitable to permit the bank or its receiver to appropriate the entire proceeds of the rice crop, nor would it be equitable to permit Bowman & Brown to receive a larger per cent, of the proceeds of the rice crop than the amount their advances bore to the total sum advanced.

The bank was Wofford’s surety, and it held securities against the rice crop, and the equities of Bowman & Brown must be worked out through these securities. It is permissible to do this where the equities of the parties require that it should be done.

In the case of Whitehead v. Henderson, 67 Ark. 200, 56 S. W. 1065, it was said:

“ ‘The general doctrine,’ says the Supreme Court of the United States, ‘that a creditor has a right to claim the benefit of a security given by his debtor to a surety for the latter’s indemnity, and which may be used, if necessary, for the payment of the debt, is not questioned. The security in such case is in the nature of trust property, and the right of the creditor arises from the natural justice of allowing him to have applied to the discharge of his demand the property deposited with the surety for that purpose, if required by the default of the prineipal.’ Chamberlain v. St. Paul, &c., R. Co., 92 U. S. 299, 306, 23 L. ed. 715; 1 Story Eq. Jur., § 502, and authorities there cited.”

Had the bank paid Bowman & Brown for the rice as it agreed to do, and no doubt would have done had its doors not been closed, it would have had as security therefor its lien as a landlord and its chattel mortgages on the rice, but these would have been without value had not some one furnished the seed rice to make the crop, and Bowman & Brown performed that service. In furnishing the seed rice, Bowman & Brown did not intend to become general creditors of the bank, as the transaction was intended to be a cash one. We conclude therefore that equity has been administered.

Cross-appellants insist that the court erred in casting up the amounts which the bank should have as its contribution to the production of the rice crop. One of the items for which the court allowed the bank credit was that of $5,700 for the rent of one of the farms for the year 1926. It appears that the bank had aeqMred one of the farms cultivated by Wofford through a mortgage foreclosure, and had contracted to sell it to Wofford upon certain conditions. The contract provided that Wofford' should pay an annual rental of $5,700 for a period of years and should perform certain other conditions, and that, if all these payments were made and conditions performed, the bank agreed to execute a deed to Wofford for the-land, but that the annual payment of $5,700 which Wofford agreed to make should be treated as rent until all payments were made and other conditions performed.

A contract of this Mud creates the relation of landlord and tenant until the conditions are performed, whereupon the right to a deed accrues. Frazier v. Nicks, 172 Ark. 1139, 292 S. W. 368, 51 A. L. R. 1287; Solomon v. Keesee, 156 Ark. 387, 246 S. W. 469; Martin v. Allen, 154 Ark. 612, 243 S. W. 802; Levy v. McDonnell, 92 Ark. 324, 122 S. W. 1002, 135 Am. St. 183; Thomas v. Johnston, 78 Ark. 574, 95 S. W. 468; Block v. Smith, 61 Ark. 266, 32 S. W. 1070; Madden v. Wheeler, 140 Ark. 55, 215 S. W. 699; Smith v. Berkau, 123 Ark. 90, 184 S. W. 429.

These conditions have not all been performed. Most of the annual payments have not accrued and have not been paid, and the relation of landlord and tenant, which the contract created, therefore continued and was the relation between Wofford and the bank during the year 1926. The agreed rental was $5,700, and it was proper therefore to include this rent as one of the items entering into the cost of the production of the rice. This was the view of the court below, and we think it was correct.

We are of the opinion that the decree of the court below upon the whole case was-correct, and it is therefore affirmed.


author: Humphreys, J.

text:
    White v. Miller.
    Opinion delivered January 16, 1928.
    1. Highways — improper transfer o-f road- funds — jurisdiction.— Chancery court has jurisdiction of a suit by taxpayers to enjoin the county treasurer from • transferring funds derived from the collection of the 3-mill road tax in the township constituting a road district under Sp. & Priv. Acts 1911, p. 1025, to an account for general use in road and bridge work throughout the county, in violation of Crawford & Moses’ Dig., § § 5278, 5490.
    2. Highways — expenditure of township road funds. — Acts 1899, p. 347, requiring the township road funds to- be kept in separate accounts, and not expended for work in other townships, held not in conflict with the Road Tax Amendment, No. 3, which does not prohibit the expenditure of funds derived from the collection of such tax on road districts wherein voted.
    3. Highways — expenditure of road funds. — Crawford & Moses’ Dig-., § § 5278, 5490, 5602, 5503, do not take from the county court its supervision over the expenditure of road funds, but merely regulate the expenditure of funds in road ■ districts in which the funds are collected.
    Appeal from Woodruff Chaucery Court, Southern District; A. L. Hutchins, Chancellor;
    reversed.

      E. M. CarlLee and Ross Mathis, for appellant.

      Roy D. Campbell, for appellee.
   Humphreys, J.

This action was instituted by appellants against appellee in the chancery court of Wood-ruff County, Southern District, for an injunction to prevent the transfer of the funds derived from the collection of the 3-mill road tax authorized by Amendment No. 3 (so numbered in Crawford & Moses’ Digest) to the Constitution, to one account for use in general road and bridge work throughout the county. The case was disposed of by the trial court on the pleadings, consisting of the complaint and demurrer, which resulted in a decree dismissing the complaint for want of equity, from which is this appeal.

The material allegations of the complaint, according to the abstract of appellants, are as follows

“That appellants are owners of land and taxpayers in Cotton Plant Township, and that appellant, J. T. White, is road overseer of said township, under act No. 370 of the Acts of 1911; that said act No. 370 provides that each township of Woodruff County shall constitute a road district, and a road overseer of each district shall .be elected every two years; that the appellee is treasurer of Woodruff County; that in the general election of 1926, and in each year prior thereto since 1901, a majority of the electors of Woodruff County have' voted a 3-mill road tax under Amendment No. 3 to the Constitution of Arkansas, and that, pursuant to such action, the said tax has been levied and collected; that, under § 5490 of Crawford & Moses ’ Digest, it is the duty of the collector of taxes to keep the 3-mill road tax of each township in a separate account; and that it is the duty of the county treasurer and the county clerk to keep a separate account with each township as to the said 3-mill road tax; and that, under § 5278 of Crawford & Moses.’ Digest, which is a section of the act of 18991 governing the expenditure of the 3-mill road tax under the constitutional amendment, the said taxes cannot be expended in any township or road district except that in which the same are collected; that approximately $4,500 is in the hands of the appellee as treasurer of Woodruff County to the credit of Cotton Plant Township as a road district; that the county judge of Woodruff County has ordered appellee, as treasurer, to transfer, without authority of law, certain funds from the road tax fund of Cotton Plant Township to other accounts, and has ordered and directed the said treasurer to transfer a certain portion of the funds of said road district to a separate account, known as the county highway account, in order that the said funds so transferred may be expended under the direction of the county judge on roads and bridges in other townships; that the county judge has announced his intention of using the road taxes collected in Cotton Plant Township in general road and bridge work in Woodruff County, and contends that he has the authority to expend such funds in work on the roads and bridges of other townships; that the appellee-has in fact made a transfer of certain funds to the credit of Cotton Plant Township, and will make further transfers if not restrained; that appellants are without a remedy at law, and, if not restrained, appellee will transfer funds from the account of Cotton Plant Eoad District, and the same will -be expended illegally.

The prayer of the complaint is that appellee be restrained from making’ a transfer of said funds or from making any illegal expenditure- of said funds, and that he be ordered by mandatory injunction to transfer back to the credit of Cotton Plant Eoad District any funds already illegally transferred.

The demurrer, omitting caption and signatures, is as follows:

“Comes the appellee, by his attorney, J. F. Summers, and demurs to the complaint and motion for a temporary restraining- order, and for his cause of demurrer says: (1) That the court has no jurisdiction of this cause, for the reason that the appellants have an adequate remedy at law, if the facts alleged in the complaint are true; (2) That the facts alleged in the complaint are not sufficient to constitute a cause of action.”

The substance of the decree is as follows:

“Being sufficiently advised, it is by the court considered, ordered, adjudged and decreed that the demurrer of appellee be and the same is hereby sustained, on the ground that the court has no jurisdiction, and that the appellants have an adequate remedy at law. To which action of the court appellants at the time except, and refuse to amend their complaint or to plead further. And it is therefore by the court considered, ordered, adjudged and decreed that the complaint be dismissed for want of equity.”

The first question involved on appeal is whether the chancery court had jurisdiction of the action. It was settled in the case of Sanderson v. Texarkana, 103 Ark. 529, that an improper application of funds collected under the 3-mill road tax amendment would be prevented by injunction; and in the case of School District No. 4 v. School District No. 84, 93 Ark. 109, 124 S. W. 238, that an illegal diversion of school taxes will be restrained by the chancery court. In both of these cases it was contended that the plaintiffs had an adequate remedy at law. If the funds in the two cases cited had been illegally diverted and expended, the funds would have been lost to those entitled thereto. This court said, in the school district case, supra, that:

“We are also of the opinion that a court of equity had jurisdiction to restrain the illegal diversion of the school tax. If the tax should, pursuant to the void order of the county court, be paid over to the credit of the other district and spent, the district to which it belonged would be remediless. The remedy at law is not complete, and a court of equity should interfere to give appropriate relief. ’ ’

In the instant case, if the funds referred to had been transferred and used for general road and bridge work in the county, appellants would be remediless. We think the two oases cited are directly in point on the question of the jurisdiction of the chancery court.

The next and only other question involved on the appeal is whether appellants are entitled to the relief prayed. It is admitted by the demurrer that the county judge of Woodruff County will transfer all funds belonging to the different road districts of the county into a single fund, unless enjoined, for the purpose of using same upon roads and bridges throughout the entire county. The fund in question was voted, levied and collected under Amendment No. 3 to the Constitution, which was adopted at thq election of 1898. A short time after the declaration-of its adoption by the Speaker of the House, on January 13,1899, the Legislature passed an act governing the expenditure of said tax. It was provided in the act that the county clerk and the county treasurer should keep the road funds in separate accounts, and such funds should not be expended for the repairs of roads and bridges in any other district than that in which said money was raised and voted, except to purchase machinery for general use in the county, which might be paid for out of the funds of the different districts pro rata and according to the amount of taxes collected in each district. Appellee argues that this act is in conflict with Amendment No. 3, quoted above, and also with § 28, article 7, of the Constitution, granting to county courts, exclusive original jurisdiction in all matters relating to roads. By reference to Amendment No. 3 it will be seen that the Legislature is not inhibited from providing that the fund 'Shall be expended in the road districts where the taxes raised are voted. The only restriction in the amendment is that the fund shall be used in the respective counties for making and repairing public roads. Just where it is to be spent is left open for the State in its sovereignty to designate.

An inspection of the act, the gist of which is contained in §§ 5278, 5490, 5502 and 5503 of Crawford & Moses’ Digest, shows that no attempt is made to take from the county court its supervision over the expendilure of the fund. It is merely a regulatory act, providing that the fund shall he expended in the road district in which collected.

The trial court erred in dismissing appellants’ complaint; hence the decree is reversed, and the cause is remanded, with instructions to the trial court to' enjoin appellee from transferring the funds in excess of twenty per cent., heretofore transferred, to huy machinery for use throughout the county, to the county highway account, for use on roads and bridges in other townships than Cotton Plant Township.