text:
    Nettles v. Alexander.
    Opinion delivered October 5, 1925.
    Contribution- — -violation op criminal statute. — Where the president of a private corporation was sued 'by a creditor of the corporation for default in failing to file the sworn corporate report required by § 1715, Cr.awford & Moses’ Dig., and a recovery was had of him thereunder, he was not entitled to contribution from the secretary of the corporation, who was likewise in default, since the cause of action was predicated upon a violation of a criminal statute (§ 1726, Id.)

    Appeal from Greene Chancery Court; J. M. Futrell Chancellor;
    affirmed.

      M. P. Huddleston and Hamilton E. Little, for appellant.

      D. O. Beauchamp and Bloch <& Kirsch, for appellee.
   Smith, J.

The Independent Gin Company was a corporation organized under the laws of this State and domiciled in Greene County. During the calendar year 1918 Eugene Nettles was the president of the company, and from January 1, 1918, to May 4, 1918, J. "W. Alexander was the secretary. On May 4,1918, C. A. Mack was elected secretary and served as such uhtil January 1, 1919.

0¡n December 20, 1918, the gin company borrowed a snm of money from a bank in Paragould, which it did not repay, and the bank sued Nettles as the president of the corporation and recovered a judgment against him for this debt. In this suit it was alleged that the president and -secretary of the corporation were in default in failing to file the corporate report required by § 1715, C. & M. Digest. At the trial of this suit it developed that Nettles, as president, and Alexander, as secretary, had filed a report as required 'by this section, but had neglected to verify it as required by the statute, and the court held, on the authority of Galloway v. Stallings, 154 Ark. 16, that it wias not a sufficient compliance with the statute to relieve him from personal liability for the debts of the corporation contracted during the period of the default, and judgment was rendered against Nettles for the amount of the debt due the bank.

Nettles paid this judgment, and then sued Alexander and Mack for contribution, and in his complaint he alleged that the duty to verify the report rested upon them as well as upon himself, but that he and they had innocently and ignorantly omitted to verify said report, ’£ but they all believed they had complied with the law, and that morally all were blameless. i

'Separate demurrers were filed to the complaint by both Alexander and Mack, and these demurrers were sustained and the cause dismissed as to each of them, and Nettles has appealed.

Appellant has reviewed our cases construing the statute under which the liability against him was enforced by the bank, and also cases from other States construing-similar statutes, and insists that this liability is in its nature quasi ex contractu and that'the right to contribution therefore exists. Appellant further insists that if it w’ere held that the liability enforced against him wa-s not contractual or quasi contractual, but sounded in tort, ] the right of contribution would still exist, for the reason ’ that no moral -turpitude was involved in the failure to make the affidavit, and that this omission was an act of ^ simple negligence in which the defendants participated. It may be said that counsel have cited cases of the highest authority sustaining their position. We do not review these cases, nor do we decide whether they should be followed by us, for the reason that, although our statute has been designated as remedial, it has become, by the amendment enacted May 6, 1909 (Acts 1909, p. 643), a criminal statute as well. The effect of this amendment — which; appears in § 1726, C. & M. Digest— -was to impose, in addition to the existing civil liability to creditors, a fine not exceeding $500 for such neglect, and each day during which the president and secretary failed to file the required report, properly verified, was made a separate offense.

It appears therefore, under our statute,'that, in stating his cause of action, Nettles must show, not merely the discharge of the quasi contractual liability resting alike upon himself and the secretary of the corporation, or a mere tort involving no turpitude, but also a violation of the criminal law of the State. In other words, his cause of action is predicated upon a violation of the criminal l'aws of this State, and his right to contribution must fail on that account.

In the case of Carter v. Bradley County Road Imp. Dist., 155 Ark. 288, the right to recover on a contract was denied because the contract was made in violation of public policy. In that case we held that where the plaintiff, to recover, would be required to. prove a contract which contravened public policy, the courts of the State would decline to render aid in the enforcement of the contract. So here the courts cannot aid Nettles in enforcing the asserted demand because, in stating his cause of action, he must prove his own violation of a criminal law of the State, and it profits him nothing to say that the defendants, the secretaries -of the .corporation, were as guilty as he was.

It follows that the demurrers were properly sustained, and the decree of the court below is affirmed.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    Northern Road Improvement District v. Meyerman.
    Opinion delivered October 5, 1925.
    1. Highways — collection of road district taxes. — Acts of 1921, p. 296, relating to the collection of road improvement taxes, applies to existing road districts as well as to those subsequently created.
    2. Highways — sale of land for improvement taxes — redemption. —The act of March 23, 1921 (p. 296), shortening the period of redemption prescribed by Acts 1919, p. 1071, from five to two years, is a valid exercise of legislative power, so far as concerns sales made after passage of the former act.
    3. Judicial sales — rights of purchasers. — A purchaser at a judicial sale becomes a .party to the proceedings, and is entitled to such assistance from the court as is necessary to make the orders and decrees of the court effective.
    Appeal from Arkansas Chancery Court, Northern District; H. R. Lucas, Chancellor;
    reversed.

      Robert E. Holt, and Rose, Hemingway, Cantrell & Loughborough, for appellant.

      M. F. Elms, for appellee.
   Smith, J.

Northern Road Improvement District of Arkansas County was created by special act No. 247, passed at the 1919 Session of the General Assembly (acts 1919, page 1071), and included two tracts of land owned by appellee. It was provided in this act that the owner of any lands delinquent for the non-payment of taxes might have five years after the sale of the land for the delinquent taxes in which to redeem from such sale, by paying the taxes, penalty, interest and costs.

At the 1921 session of the General Assembly, act No. 231 was passed. Acts 1921, page 296. This act was entitled “An act to facilitate the collection of the taxes of Road Improvement Districts,” and by section 1 thereof a procedure was provided for enforcing the payment of delinquent taxes by a suit in the chancery court. This procedure contemplated a decree finding that the land was delinquent and condemning it to be sold, and that a commissioner should be appointed by the court to make the sale, and that a report of sale should be made to and approved by tbe court, after which the commissioner should execute to the purchaser a deed. After >so providing, it was further provided that “the owner -of property sold for taxes therein shall have the right to redeem it at any time- within two years from the date when his lands have been stricken off by the commissioners making the sale. ’ ’

Appellee failed to pay the taxes which were properly assessed against his lands for the years 1920 and 1921. Suit was brought to enforce payment of these taxes under the act of 1921, and there was a decree condemning them to be sold, and, pursuant to this decree, the lands were sold, the sale was reported to and approved by the court, and a deed made to the purchaser. Appellee refused to surrender possession, and the purchaser applied to the court for a writ of assistance to obtain possession. Thereupon appellee brought this suit and alleged in his complaint that his time for redemption had not expired, and he prayed that the sheriff be enjoined from serving the writ of assistance, that the writ be quashed, and that he be allowed to redeem his lands.

Upon the trial from which this appeal comes the court held that the act creating the improvement district gave to appellee as landowner therein a vested right to redeem from the decree of sale for taxes at any time within five years, and that he could not be deprived of this right by the act of 1921, and the writ was quashed.

The purchaser has appealed, and the most important question presented is, whether the act of 1921, under which the decree was taken, is void in so far as it amends the act creating the improvement district, which allowed five years for redemption.

It is first insisted that it was not the purpose of the Legislature, in enacting the act of 1921, to make it apply to existing districts. But we do' not agree with counsel in this contention. The act provides that “All taxes levied by road improvement districts in this State, whether organized under' general or special laws, shall be payable between tbe first Monday in January and tbe tenth day of April of each year,” and in the same section in which the language just quoted appears is found the provision that the owner of property sold for taxes shall have the right to redeem at any time within two years from the date of the sale by the commissioners.

The language of this act appears to be too plain to leave any doubt that the Legislature intended its provisions to apply to all proceedings to enforce payment of delinquent taxes due the road improvement districts of this 'State, and to those then in existence as well as those subsequently created.

The next question to decide is, whether the Legisla-' ture had the power to do what it obviously intended to do, that is, shorten the period of time allowed landowners in which to redeem from sales for taxes.

As we have said, the court below held that appellee and all other landowners in the district created by the special act of 1919 had, by the terms of that act, a vested right to redeem any lands returned delinquent and sold at any time within five years from the date of the sale. Appellee insists that the court was correct in this holding, and that to hold otherwise would impair the obligation of the contract which the act of 1919 brought into existence between the improvement district and the owners of property therein, and would thereby violate the provisions of both the State and Federal Constitutions which prohibit the impairment of the obligations of contracts.

We do not agree with counsel in this contention. The organization of the improvement district was not a matter of contract. It was a proceeding in invitum. It was an exercise of the State’s police power, and the Legislature had the power to provide such procedure as it saw proper to enforce the payment of delinquent taxes, and the granting of the right of redemption from a sale for delinquent taxes was a matter of grace, which might have been withheld.

The act of 1921 became a law on March 3, 1921, and the decree of sale of appellee’s lands was rendered pursuant to its provisions, and the sale occurred in June following, and the act provided that the right.of redemption might be exercised at any time within two years thereafter. The act did not undertake to shorten the time for redemption after the sale had been made.

The contractual rights of the parties under the sale did not become fixed as such until the sale by the commissioners had taken place, and therefore these rights were governed by the law as it existed at the time of the sale.

This question was considered by this court in the case of Smith v. Spillman, 135 Ark. 279, where the previous decisions of this court were reviewed, and the court there quoted from the case of Hogg v. Nichols, 134 Ark. 280, the following statement of the law: “We have examined the' authorities carefully and find that the law regards and treats a judicial .sale as contractual; and the laws of redemption in force at the time of the sale are a condition attached to the sale. In other words, the authorities seem practically unanimous in holding that the right to redeem from a tax sale is governed by the statute in force and effect at the time the sale was made.' ’

As has been pointed out, there has been no shortening of the period of redemption since the sale. The law then in force has not been changed. That law gave a right of redemption for two years, which was not exercised. After the sale under this' law the contractual rights of the parties thereto attached, and, as appears from the decision in Smith v. Spillman, supra, these rights are governed by the law in force at the time of the sale, and we have no discretion in enforcing them.

The power of the Legislature to amend the act of 1919 by shortening the period of redemption, as was done by the act of 1921, appears to be certain.

In the case of Allen v. Peterson, 80 Pac. 849, the Supreme Court of Washington said: “The statute of 1899 (Laws 1899, p. 285, c. 141) in express terms purports to amend the statute of 1897 (Laws 1897, p. 136, c. 71), and no reason is shown, and none is apparent to us, why it is not effective as an amendment. Nor did the appellants have iany vested rights in the remedy provided by the earlier statute. The Legislature has power from time to time to' change the mode of enforcing collection of delinquent taxes, and may make such mode operative as to taxes due and delinquent. While, perhaps, it may not arbitrarily cut off a right to redeem that .a property-holder who is delinquent then has, it may shorten such time, provided it leaves a reasonable time within which to exercise the privilege. The principle is akin to that of a .statute which prescribes a limitation for bringing actions where none previously existed or shortens those already existing. Either is valid if a reasonable time is given by the new law to commence an action before the bar takes effect. Terry v. Anderson, 95 U. S. 628, 24 L. Ed. 365; Wheeler v. Jackson, 137 U. S. 245, 11 Sup. Ct. 76, 34 L. Ed. 659; Woodham v. Anderson, 32 Wash. 500, 73 Pac. 536; Biggins v. People, 106 Ill. 270; Hosmer v. People, 96 Ill. 58. The amendment in question here did not arbitrarily cut off the right to redeem, but only shortened it. It was therefore applicable to existing delinquent taxes. ’ ’

The case of Baldwin v. Ely, 28 N. W. 392, involved the construction of a taxation statute of the State of Wisconsin, and the 'Supreme Court of that State there said; “The authority of the Legislature to shorten the time for redeeming from some of the certificates up to two years cannot be seriously questioned, under the numerous decisions of this court on the subject.”

In the case of Robinson v. Howe, 13 Wis. 341, the Supreme Court of Wisconsin had previously said: “So far as his (the land owner’s) right of redemption was concerned, it was not derived from any contract, but was given by the law only, and the time within which he might exercise it might be shortened by the Legislature, provided a reasonable time was left in which to exercise it, without impairing the obligation of any contract. Butler v. Palmer, 1 Hill, 324; Smith v. Packard, decided by this court at the present term (12 Wis. 371). But the rights of the purchaser stand upon a different footing. They are derived from the contract, which the law authorized to be made. He contracted at the sale for a deed of the kind which the law then authorized him to contract for. That was an absolute deed at the end of three years, liable to be defeated only by a redemption before it was recorded.”

The case of Keely v. Sanders, 99 U. S. 441, involved the construction of a statute of the State of Tennessee whereby certain taxes were collected 'by a proceeding in rem, and Justice Strong, speaking for the Supreme Court of the United States, there said: “While it may be admitted that a statutory right of redemption is to be favorably regarded, it is nevertheless true that it is a statutory right exclusively, and can only be claimed in the oases and under the circumstances, prescribed. Courts cannot extend the time, or make any exceptions not made in the statute. Redemption cannot be had in equity (Mitchell v. Green, 10 Metc.) (Mass. 101), except as it may be permitted by statute, and then only under such conditions as it may attach. ’ ’

The question whether the right of redemption from a tax sale is contractual was considered in the case of Muirhead v. Sands, 69 N. W. 826, and the. Supreme Court of Michigan there said: “It is next contended that, if the law of 1893 be construed to apply to the taxes for the year 1891, it hastens the time of sale of lands delinquent for taxes, and cuts down the period of redemption provided by the previous law, and is to that extent uncon- 1 stitutional, in that it violates section 1 of article 10 of the Constitution of the United States, prohibiting enactments by the State impairing the obligation of contracts,, and article 6, section 32, of the Constitution of Michigan, in that it deprives persons of their property without due process of law. We think neither of these positions is tenable. A labored argument, is made to show that the relation between the State and the owner of the land is a contract relation, for the reason that the taxes assessed became a debt to the township, from the person to whom they are assessed. But the proceeding is essentially m invitum,, and the proceeding on a sale of land is a remedy for the delinquency of the taxpayer. The law affecting the remedy is in such oases subject to amendment, even though the time.fixed for the sale or redemption be shortened. 25 Am. & Eng. Enc. Law, 410; Black, Tax Titles, § 353; Baldwin v. Ely, 66 Wis. 171, 28 N. W. 392; Negus v. Yancey, 22 Iowa, 57. Defendant relies upon Cargill v. Power, 1 Mich. 369, which case proceeds upon the view that the period of redemption on a mortgage sale, as fixed by statute at the time the mortgage was executed, is to be deemed a part of the engagement of the parties. No such construction can be placed upon the statute her e under consideration. There was no agreement between the State and the taxpayer as to the period of redemption.”

In the ease of Rogers v. Nichols, 71 N. E. 950, the Supreme Judicial Court of Massachusetts said: “Although the lien Which attaches to real estate upon a proper assessment of taxes thereon is commensurate with .the extent of the title at the time, 'and may so continue until a sale is made, the right to redeem therefrom is not dependent upon the nature or extent; of this lien, but is a separate provision, granted by the State for the benefit of those who may have been thus deprived of their property. It is within the power of the Legislature after an assessment has been made, and before the sale, to prescribe the conditions under which redemption may be had if the premises taxed are sold; and acts of this character are not considered unconstitutional as impairing any vested or contractual rights that might be acquired iby a purchaser. As the plaintiff took his title subject to the law relating to redemption of lands from tax sales as it stood at the time of sale and not at the time of assessment, he cannot successfully maintain that his rights to property have been impaired by .any statutory change made since his purchase. ’ ’ (Citing numerous cases).

In the case of Negus v. Yancey, 22 Iowa 57, the Supreme Court >of that State said: “The competency of the Legislature to change and modify, at all times, the provisions of its revenue law is too clear to be questioned. If this change .should impose new terms and conditions in the collection of taxes already delinquent, upon what ground can the defaulting taxpayer complain? He has no vested rights or privileges in the terms, or provisions of the law under which he is ia defaulter. ¥e suppose, in the very nature of the case, the law of the sale must be the law to regulate the right of redemption, inasmuch as that must take place within a prescribed time from the date of the former.” See also Black on Tax Titles, § 353; 37 Cyc. 1390; Cooley on Taxation (4th Ed.) Vol. 4, § 1550.

We conclude, therefore, that the court below was in error in holding that appellee had a vested right under the act of 1919 to redeem his land from any sale thereof which might thereafter occur for a period of five years, notwithstanding this statute had been subsequently amended to shorten that time, and, as the sale was had under the act of 1921, which allowed only two years to redeem after the sale, the provisions of that act must be applied in determining the right of a purchaser at such a sale to a deed.

It is finally insisted that, as appellant was not a party to the suit condemning the land for sale, he is not, for that reason, entitled to the writ of possession which issued in this case. It was held by this court, however, in the case of Miller v. Henry, 105 Ark. 261, that a purchaser at a judicial sale becomes a party to the proceedings and subject to the orders of the court, and he is therefore entitled to the benefit of such assistance from the court as is necessary to make the orders and decrees of the court effective. See also Porter, Taylor & Co. v. Hanson, 36 Ark. 591.

It follows, from what we have said, that the court erred in holding that appellee had the right to redeem from the sale and in quashing the writ of possession, and the decree will be reversed, and the cause remanded with directions to award the tax purchaser a writ of possession.


author: Humphreys, J.

text:
    Rogers v. Reliable Feed Company.
    Opinion delivered October 5, 1925.
    Attachment — forthcoming bond — discharge.—The effect of adjudging that attached property belongs to an intervener is to discharge the sureties upon a forthcoming bond from liability to the plaintiff.
    Appeal from Ouachita Circuit Court; L. 8. Britt, Judge;
    reversed.

      Powell, Smead & Knox, for appellant.
   Humphreys, J.

Appellee, a partnership, instituted an attachment proceeding against H. N. McBride in the circuit court of Ouachita County to recover $1,473.70 on an open account for goods, wares, and merchandise which were sold to 'him. The writ of attachment wlas levied upon a lot of personal property in the possession of H. N. McBride. H. N. McBride executed a forthcoming ¡bond with appellant as one of the ¡sureties thereon, and retained the property. He filed an answer admitting the purchase of -the goods, but alleged that he exchanged and assigned an account which Bradford, Rig & Realty Company owed him in payment of said goods. He also ¡alleged that the personal property upon which the writ of attachment was levied belonged to Mrs. Mada R. Brown, who had leased it to him.

Mrs. Mada R. Brown filed ’an intervention, in the attachment proceeding for said property, claiming to be the owner thereof.

Hpon the trial of the cause, H. N. McBride confessed the indebtedness. The court found that the attached property belonged to Mrs. Mada R. Brown, the intervener, and adjudged the possession thereof to her.

The court then found that it was impossible for H. N. McBride 'and his bondsmen to, return the property to appellee because same had been adjudged to the intervener, and rendered judgment for the amount of the indebtedness and interest against H. N. McBride, and a summary judgment against his bondsmen for said sum.

Appellant perfected an appeal to this court from the summary judgment rendered against .him, and contends for a reversal thereof upon several grounds, only one of which we need consider in deciding the case. The bond was executed in conf ormity to and under the authority of § 514 of Crawford & Moses’ Digest, which allows the sheriff to deliver attached goods to the person in whose possession it was found, upon the execution of a bond in double the value of the property, to the plaintiff, conditioned that the defendant shall perform the judgment of the court in the action, or that the property or its value shall be forthcoming and subject to the orders of the court for the satisfaction of the judgment. The trial court proceeded upon the theory that the legal effect of the bond was to release the attachment and lien upon the property, whereas the effect was to release the sheriff from the care and custody of the same and to transfer the possession thereof to the defendant to be held by him subject to the orders of the "court in the attachment suit. The attachment lien remained intact, and the property subject to the orders of the court. Adams v. Jacoway, 34 Ark. 542; McDonald v. Lowen, 130 S. W. 52 (Mo.); Lee v. Newton, 87 S. W. 790 (Ky.); Ourand v. Johnson, 98 S. W. 127. The court adjudged the property levied upon to be the property of the intervener, thereby discharging the lien of appellee and its right to have a return of1 the property under the bond. The effect was to discharge the bondsmen, hence the court erred in rendering a summary judgment against them.

The judgment is reversed, and the cause is remanded with directions to discharge appellant from any obligation on the bond.


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    First National Bank of Manchester v. Turner.
    Opinion delivered October 5, 1925.
    1. Judgment — direct attack — overcoming presumption of-regu- . larity. — Evidence, in a direct attack "on a judgment, held sufficient to overturn the statutory presumption of service on the defendant therein arising from the recital of service.
    2. Judgment — direct attack — showing of meritorious defense.— Evidence held to make a prima, facie showing of a meritorious defense to authorize -a judgment obtained without service- to he set -aside -on direct attack.
    3. Evidence — letter.—iWhere a contract for the sale of a stallion provided for return of the animal in casé he did not prove serviceable, -a letter fro-m. .purchaser to seller informing the latter that the horse was not serviceable was not a sufficient prima facie showing of a breach of the contract.
    Appeal from Lee Circuit Court; E. D. Robertson, Judge;
    reversed in part.

      Bogle & Sharpe, for appellant.

      John I. Moore and Daggett db Daggett, for appellee.
   Humphreys, J.

The purpose of this suit was to set aside a judgment -obtained iby appellant again-st appellees on the 11-th day -of April, 1921 in the circuit court of Lee County. It was a -direct attack up-on the- gronnd that the judgment was -obtained without service. On the trial of the -cause, the court set aside -the judgment and granted a new -trial, from which -appellant prosecuted an appeal to this -court. The 'Supreme -Court reversed -the judgment because the appellees failed to- show that they did not know of the proceedings in the original action in which judgment was 'obtained against -them. First National Bank v. Dolsheimer, 150 Ark. 464. After the mandate -o-f the court was filed, -the pleadings were 'amended so as to embrace 'the issues of whether appellees had knowledge of the pendency of the -original suit -before the default judgment was rendered, and whether appellees had a meritorious defense -to the original cause of action. The trial court -decided these issues in favor of -appellees, and appellant has prosecuted an appeal to this oonrt from the judgment setting aside the original judgment and granting appellees a new trial.

The first contention for a reversal is that the. evidence adduced was insufficient to. overcome the prima facie presumption, arising from the recital in the original judgment, that service of process was had upon two of the appellees, J. F. Turner .and John P.. Caruthers. In addition to the testimony bearing upon the question of service, J. F. Turner testified positively that he was not served with process, and that he knew nothing of the pendenicy of the original suit or that the judgment had been rendered until in August of the year following the date of the judgment. J. W. Jones, a deputy sheriff, testified that the sheriff gave him the original process to serve, but that he knew nothing about, service upon Mr. Turner; that he was under the impression Mr. Blair served ia summons upon Turner. Mr. Blair testified that he did not serve process upon Mr. Turner. We think the evidence sufficient to overturn the statutory presumption of service on J. F. Turner, arising from the recital of service in the original judgment. The court erred, however, in setting aside the judgment against John P. Caruthers, for he admitted that he knew about the pendency of the suit.

The next contention for a reversal is that the evidence adduced was insufficient to show a meritorious defense to the original action on behalf of J. F. Turner. The basis of the original suit was- notes in the aggregate sum of $2,100, which were executed by J. F. Turner and several associates for the- purchase of a coach stallion. J. F. Turner testified that he was induced to sign the notes upon the representation of a mlan’by the name of Rivers, Who had the stallion in possession and who negotiated the sale, to the effect that the purchasers would be individually .and severally liable to the extent of only $300; and; to lend plausibility to the representation, said party delivered purchasers each a certificate of membership for one share of stock valued at $300 in the coach stallion Beauregard, and, after the contract was executed, accepted a payment of $100 on the first note, and credited it as paid by Caruthers in his individual capacity. J. F. Turner also testified that, after the maturity of the motes, he received notice from a 'bank in Dallas, Texas, that it (held the notes, and later a notice from a bank in Fort Smith that it held the notes. The indorsement under which appellant claims title to the notes was in blank. A reasonable inference might have been drawn from these facts that appellant purchased the notes after mlaturity. We think appellee, J. F. Turner, made a prima facie 'showing of a meritorious defense, and that appellant was mot a purchaser of the notes in good faith for value before maturity. This was the extent of the showing necessary for him to make in order to set aside the original judgment. Knights of Maccabees v. Gordon, 83 Ark. 17; Quigley v. Hammon, 104 Ark. 449; Osburn v. Lawrence, 123 Ark. 477.

Appellee, J. F. Turner, also contends that he made a prima facie showing of a breach of fhe contract .by the owner of the horse in failing to replace him with another on account of not being a fifty per cent, foal-getter. The contract provides for the return of the horse by the purchasers in case he did not prove serviceable. Conveying this fact to the owner by letter was not a sufficient prima facie showing of a breach of the contract. In the present state of this piece of evidence, we refrain from determining whether there was a breach of the contract in this particular.

The judgment is affirmed as to J. F. Turner, and reversed as to J. P. Caruthers et al.


text:
    Lednum v. State.
    Opinion delivered October 5, 1925.
    Perjury — false affidavit — materiality.—An indictment for perjury alleging that accused falsely made affidavit before a justice of the peace of a certain township and county that he saw a person named making whiskey, without stating where he was making it, is insufficient in failing to show that the false affidavit related to a (material matter.
    Appeal from Clay Circuit Court, Western District; W. W. Bandy, Judge;
    reversed.

      Raley & Ashbaugh, for appellant.

      II. W. Applegate, Attorney General, and Darden Moose, Assistant, for appellee.
   Humphreys, J.

Appellant was indicted, tried, and convicted of the crime of perjury in the Western District of Clay County; and, as a punishment therefor, was adjudged to serve a term of one year in the State penitentiary. Prom the judgment of conviction, appellant has duly prosecuted an appeal to this court, relying mainly for a reversal of the judgment upon the alleged insufficiency .of the evidence to sustain the charge of perjury. We agree with appellant in this contention. The basis of the charge was an affidavit which appellant made before Otto Sullins, a duly qualified .justice of the peace of Kilgore township, in the Western District of Clay County. The affidavit is as follows:

“I, W. H. Lednum, saw ‘Charley Powers making whiskey on or about July 15, 1923. I have seen Charley Powers making whiskey some -six or seven times, and I have drank some of it more than once.
“W. H. Lednum.
“Subscribed and sworn to before me this August 1, 1923. Otto Sullins, J. P.”

This wias the only evidence appellant gave before said justice of the peace, and it was alleged in the indictment that he unlawfully, wilfully, corruptly, falsely, knowingly, voluntarily, and feloniously made the affidavit. Section 2588 of Crawford & Moses’ Digest defines perjury as follows:

“ Perjury is the wilful and corrupt swearing, testifying or affirming falsely to any material matter in any case, matter or proceeding in any court, tribunal, body corporate or other officer having by law authority to administer oaths.”

According to this definition, the materiality of the alleged false testimony must have appeared in the affidavit. It should have shown on its face that appellant saw Charley Powers making whiskey in Clay County. It was necessary for the venue to appear in the affidavit to make the subject-matter contained therein material. It was entirely immaterial if appellant saw Charley Powers making whiskey in some other county.

The judgment is therefore reversed, and the cause is remanded with directions to discharge appellant.


text:
    Knight v. Missouri, Pacific Railroad Company.
    Opinion delivered October 5, 1925.
    Master and servant — payment op wages’ — estoppel.—Where a railroad employee accepted monthly checks stating that they were for all services rendered by him during the months specified in in each, he thereby estopped himself to claim additional amounts for such months.
    Appeal from Independence Circuit Court; Dene H. Coleman, Judge;
    affirmed.

      W. K. Ruddell, for appellant.

      Thos. B\ Pryor and H. L. Ponder, for appellee.
   Humphreys, J.

Appellant, an employee, brought suit against appellee, a railroad corporation operating in this State, in the circuit court of Independence County to recover alleged monthly shortages covering a considerable length of time, which the company refused to pay him. It was alleged that the total shortages and overtime amounted to $59.25, and that he was entitled to sixty days’ pay at $3.'60 per day as a penalty under § 7125 of Crawford & Moses’ Digest for discharging him without paying said amount. The suit was brought on March 10, 1923, .almost two years after the last alleged monthly shortage.

Appellee filed an answer, denying the material allegations in the complaint and .pleading payment of all it owed appellant.

Appellant testified that appellee failed to- pay him the full amounts due him in the months of February, June, July, September, and October, 1920, -and January and June, 1921; that the several items of shortage and the overtime he worked amounted to $59.25. Upon his cross-examination, appellee introduced seventeen monthly checks, which appellant identified as payments made to him by appellee covering the period of alleged shortages. The checks, except as to dates and amounts, contain the following provision:

“Pay to the order of David Knight $38 for services rendered during the month of February, 1920.”

At the conclusion of the testimony, appellee asked for an instructed verdict, which the court gave over the objection and exception of appellant. The -court then rendered a judgment in accordance with the- peremptory instruction, from which 'an appeal has been duly prosecuted to this court.

Appellant contends for a reversal of the judgment because appellee did not plead accord and satisfaction, and because the cheeks did not purport to be- payments in full. The checks were introduced in the -case for all purposes without' objection, and, in view of these facts, the -court had a right to treat the answer as amended to conform to the facts. If the checks amounted in fact to an accord and satisfaction, it was proper for the court to treat the answer as -amended to show that fact. The- correctness of the judgment then must turn upon the effect to be given the checks. Appellant testified that he wa-s entitled to more each of the months referred to than shown by the checks, and that he demanded full payment from the -officials but they refused to recognize or to pay his -claims. The effect -of Iris testimony was to show that the several amounts claimed by bim were in dispute. During the time of (the difference, monthly checks in form above were accepted from the company and cashed by him. The checks specified that they were in payment of services rendered during particular months, -covering the months for which he claimed shortages and overtime. We think, properly interpreted, the -checks wiere tendered for all services rendered by appellant -during the months specified in e-ach, and that by receiving and cashing them, appellant estopped himself to claim additional (amounts.

The judgment is .affirmed.


author: Wood, J.

text:
    Young v. Gurdon.
    Opinion delivered June 22, 1925.
    1. Municipal corporations — condemnation for sewers and drains. —Under Crawford & Moses’ Dig., § 4006, empowering municipal corporations to open and construct sewers and drains, and to ■enter upon and take land for such purpose, a city is authorized to condemn land for 'drains and sewers.
    2. Municipal corporations — condemnation proceedings' — resolution — majority vote. — Crawford & Moses’ Dig. § 4007, authorizing a city council to direct proceedings to condemn land to be instituted by resolution adopted by a two-thirds vote of the members-of the council, a resolution -authorizing such proceedings passed by unanimous vote of all the members of the council is valid.
    3. Municipal corporations — passage of ordinances. — Crawford & Moses’ Dig., requiring that “all hills and ordinances of a general and permanent nature shall be fully and distinctly read o-n three different days unless two-thirds of the members composing the council should -dispense with the rule,” the adoption of a resolution by unanimous vote of -all the members of the council dispenses with such requirement.
    4. Eminent domain — condemnation for sewers and drains— evidence. — Evidence held to sustain a finding that the fee in certain lots wa-s required for drainage purposes.
    5. Eminent domain — power of state. — The right and power of the State to appropriate property for public use or the general welfare is essential to government and exists as an inherent and inextinguishable -attribute -of sovereignty, whether expressly recognized in the organic law or not.

      6. Eminent domain- — right to compensation. — The- sovereign power of the State to condemn and take for public use involves the correlative right of the individual to ju-st compensation for the property which he has been compelled to surrender for the public welfare.
    7. Eminent domain — exercise of a legislative’ function. — The exercise of the power -of eminent domain is a legislative, rather than a judicial, function; and, while the courts -are not absolutely concluded by the action of the legislative department, its judgment will be respected by the court, unless the use be palpably private or the necessity for the taking plainly without -reasonable foundation.
    8. Eminent domain — exercise of power — duty of courts. — When the Legislature >or the agency to whom it has delegated the power of eminent domain has exercised such power, it is the duty of the courts, when the character of the use is challenged, to determine whether the purpose is a public one, and, if so, to preserve the right of the individual to compensation for his property.
    9. Eminent domain- — extent of property taken. — No more property of a private individual and no, greater interest therein can be condemned and set apart for public use than is absolutely necessary.
    10. Eminent domain — -power to condemn fee in land. — Crawford & Moses’ Dig., § 4006, authorizing municipal corporations “to enter upon iand take” lands for sewers and drains, is broad enough to confer the power to condemn either an easement or the fee in land, as the exigencies of the situation may require.
    Appeal from Clark-Chancery Court; G. E. Johnson, Chancellor;
    affirmed.

      John II. Crawford and Dwight H. Crawford, for appellant.

      McMillan & McMillan, for appellee.
   Wood, J.

In October, 1923, W. A. Young and his wife, L. E. Young, hereafter called appellants, instituted an action in the Clark Chancery Court against B. B. Young and the town of Gurdon et ad., alleging that they were the owners in fee simple of three lots in the town of Gurdon and seeking to enjoin the town and the -others named in the complaint from permitting trespasses upon such lots by -creating and -maintaining thereon public and private nuisances. A temporary injunction was issued in • accordance with the prayer of the complaint.

At the time of the institution of the action the town ' of Gurdon was an incorporated town. It afterwards became a city of the second class, and as such, in January, 1924, it instituted an action in the 'Clark Circuit Court against the appellants, in which it set up among other things that it was seeking to establish a drainage system in the city, and that in order to do so it needed for that purpose lots Nos. 17,18 and 19, belonging to the appellants, which' were the same lots involved in the prior action. The city prayed that the lots be condemned for the use of the city. The city of Gurdon will hereafter for convenience be referred to as the appellee.

The appellants answered the action in the circuit court, alleging substantially the same facts as they had alleged in their complaint in the chancery court, and prayed that the cause be transferred to the chancery court and consolidated with the action instituted by them against the appellee in that court. The circuit court granted appellants motion to transfer the cause to the chancery court, and the causes were there consolidated.

On the first of January, .1924, the appellee passed a resolution “that, for the purposes of opening, constructing, and keeping in order and repair sewers and drains from Joslyn Street, Corn’s Addition to the city of Gurdon, to East First Street on Crescent Heights Addition to the city of Gurdon, Arkansas, lots'17,.18 and 19, block 7, Crescent Heights Addition to Gurdon, being the property of L. E. Young and W. A. Young, be entered upon and taken possession of by the said city for the purposes above mentioned, and that the same be condemned as required by law for the use of said city. ’ ’ The resolution was adopted, as shown by the record of the council, by a unanimous vote, each of the members being recorded as voting “Aye.” The resolution was not read on three different days, nor did two-thirds of the members of the council expressly vote to dispense with such reading.

Without setting out the testimony of the witnesses for the city in detail, it suffices to say that such testimony tended to show that there was a drain or branch which entered the city of Gurdon in the southeast corner and flowed in a sinuous course through the city in a northwesterly direction. It passed under the Missouri Pacific Railroad just north of the business district of the town. Between the railroad and the branch all the banks, principal hotels, the only depot, and the principal business houses of the city, together with a large residence section, were situated. In some places the bottom, or base, of the drain is 500 feet wide. There are no improvements in the swale or drain itself.. Bridges are maintained where the streets cross the swale for travel from east to west. The Missouri Pacific trestle over the swale is about 75 feet wide and ten or twelve feet high from the bottom of the drain to the cap sill of the bridge. The lots in controversy are triangular in shape. The branch is the principal means of drainage for that part of Gurdon east of the railroad. The branch also furnishes drainage for a territory about a mile in length and width before it enters the city. In times of heavy rainfall the basin of this branch in the southeast part of the- city is full from hill to hill. The water during these times is about 500 feet wide and seven to eight feet deep over the lots in controversy. The opening of the railroad for the water to flow through is sixty or eighty feet wide and about ten or twelve feet high. At such times it is necessary for the people living on the east side to-come to the railroad trestle in order to cross the business section, the streets being impassable. The water brings down a deposit on the lots in controversy — logs, automobile tires and debris of every kind. During the dry season the bed of the 'branch above the lots in controversy is dry except there are occasional holes of stagnant water. The city has a bridge over the drain parallel to the railroad which is about twenty feet wide and seven or eight feet high over the drain. To handle the water during floods there is no other way except by the use of the lots in controversy as an outlet. There is at all times water flowing across the lots. To handle the water in flood times in any other way than by appropriation of these lots, it would be necessary to cross high ground through other property about 900 feet in length with a drain or canal twenty feet deep and thirty feet wide.

One of the physicians living in the city of Gordon testified that from his observation it was necessary for the proper taking care of the waters for the city to take practically all of the lots in controversy. • It would take all of the south part of same. That, if a structure were built in the drain on these lots, it would have to be fully four or five feet high to be above overflow. A building lower than that would stop the water in the ditch. A building could possibly be built on the west part of the lots close up to the sidewalk, there being high ground there which holds the water off of the street to some extent. There was testimony tending to show that the drift, waste and stagnant pools made the entire basin unsanitary, but such condition was more pronounced on the lots in controversy because there most o.f the drift and waste accumulated.

The mayor of the city testified that the drain where it crossed the lots in controversy was close enough to the resident and business section of the city to be a menace to the health of the inhabitants if the water were permitted to stagnate along the drain. To keep it in a sanitary condition, the city should have control of the drain, and, if the lots remained in private ownership, the owners could build across the drain buildings which would inter- > fere with the keeping of the same in a sanitary condition, and that it wa's impracticable to divert the water of the drain so that it would not cross the lots in controversy.

In October the town council passed a resolution directing the property owners along the branch to clean up their premises and a voluntary contribution was taken to enable the citizens to carry out the orders of the city council and to cooperate with the authorities in cleaning out and draining the branch and basin. Notice was servpd on the appellants to clean up the lots in controversy, but they refused to do so and also to subscribe to the community fund for that purpose. When the work of cleaning up the waste and letting out -the stagnant water from -the pools on the lots in controversy was begun, the appellants instituted this action, and the city thereafter instituted the action in the circuit court to condemn the property.

The testimony of the appellants was to- the effect that they were the owners of the lots in controversy. At the time they acquired the same the drain or wet weather branch ran through them. There was never .anything wrong with the condition of the lots until the people began draining -septic tanks into them and throwing rubbish along the sides of the branch and -emptying -sewage from surface closets in a field above where the drain entered -the town along the sides of the branch. The appellants did not object to the city or any one else keeping the ditch -or drain in -a sanitary condition. They did object to the mutilation of-their lots. The city and others, defendants in appellants’ action, had entered and cut two or -three trees and were plowing up -appellants’ lots when appellants sought and obtained a temporary injunction.

There was testimony tending to show that the reasonable value -of the lots in controversy was from fifty to sixty -dollars each.

The trial court found that there is now and always has been a small stream or branch across said lots, used by the city for its drainage -and sewerage, and further found that to maintain this drainage system and to properly drain and sewer certain portions of said city, the -city needs an easement through -and upon all of the said lots; that the value of said lots is $150 and that the value of the easement in said lots is $150. The court declared the law to be that the right that should be acquired by the city is an easement in and over all of the said lands, and that the fee in said lands subject to said easement should remain in said L. B. and W. A. Young.

The court entered a decree .condemning the lands in controversy for an easement for the use of the city for drainage purposes upon the payment of $150 by the city, and entered a decree dismissing the appellant’s complaint for want of equity, from which is this .appeal.

1. Section 4006 of Crawford & Moses’ Digest confers upon municipal corporations the power “to open and construct, keep in order and repair, sewers and drains; to enter upon or take, for such of the above purposes as may be required, land or material.” The above section confers ample authority upon the city of Gurdon to condemn the lots in controversy for draining the city. See McLaughlin v. Hope, 107 Ark. 443. Judge Dillon says: ‘ ‘ On the ground that the public health, convenience, and welfare will be thereby promoted, the Legislature may authorize the condemnation of private property for the purpose of using the same for * * * the construction of drains and sewers.” 3 Dillon on Municipal Corporation, § 598, and oases there cited. “Drains and sewers,” as used in our statute, are not synonymous, and are not convertible terms, though it is obvious that each under the 'circumstances might include the other.

2. Having determinetr that the appellee had the authority to condemn the lots in controversy, the next question is did it adopt the proper procedure? Section 4007, Crawford & Moses’ Digest, in effect provides that no improvement shall be made which will require proceedings to condemn private property without the concurrence in the by-law, ordinance, or resolution directing the same of two-thirds of the whole number of members elected to the council. The resolution under which the procedure to condemn was inaugurated was passed by a unanimous vote of the council. The above statute authorizes the council to direct proceedings to condemn to be instituted by resolution adopted by a two-thirds vote of the whole number of members of the .council. Here, the resolution was unanimously adopted.

The appellants contend that, inasmuch as the resolution was read only one time, it was not legally adopted under the provisions of § 7502 of Crawford & Moses’ Digest, which requires that “all bills and ordinances of a general and permanent nature shall be fully and distinctly read on three different days unless two-thirds of the members composing the council should dispense with the rule.” It is unnecessary for us to decide, and we do not decide, whether such section is applicable to the resolution under consideration. For, conceding that the section is applicable, the adoption of the resolution by a unanimous vote of the council dispenses with the rule. Such was the legal effect of the action of the council.

The case of Newbold v. Stuttgart, 145 Ark. 544, upon which the appellants rely is not applicable, for the reason that the ordinance in that case was not .enacted by two-thirds of the members elected to the city council.

The only remaining question is whether or not under the pleadings and proof the court erred in condemning the entire lots of «¡the appellants for drainage purposes. It will be observed that the court found that, to properly drain and sewer certain portions of the city, “the city needs an easement through and upon all of said lots.” The court found that the value of the lots was $150 and the value of the easement was $150. An examination of the complaint will show that the appellee was seeking to condemn the fee of the appellants — in other words, to take over the entire property in the lots for the' use of the city. That was the issue raised in the condemnation proceeding. The appellee, as we have seen, had the power under the statute to condemn the .entire property, that is, the fee therein, if required for drainage purposes. The decree of the court, even though it designated the condemnation as that of an easement, was nevertheless tantamount to condemning the appellants’ entire property in the lots for the use of the city for drainage purposes, and it occurs to us that its action in so doing was authorized and justified not only by the pleadings but also by the evidence.

The right and power of the State to appropriate private property for public use or the general welfare is essential to government and exists as an inherent and inextinguishable attribute of sovereignty, whether expressly recognized in the organic law or not. See Lewis on Eminent Domain, page 6, § 3, and numerous cases cited in note. But the State’s ancient right of eminent domain is fully and expressly conceded in our Constitution. Art. 2, § 23, Constitution 1874. Under our governmental system the right of an individual to acquire and possess and protect property is an inherent and inalienable right and declared to be higher than any constitutional sanction. Art. 2, §§ 2 and 22, Constitution. The sovereign power of the State to condemn and take for public use involves the correlative right of the individual to just compensation for the property which he has been compelled to surrender for the public welfare. See art. 2, § 22, Constitution.

The exercise of the sovereign right and power of eminent domain, as above defined, is lodged in the Legislature. It is a political and legislative, rather than a judicial, function. “Of the necessity or expediency of exercising the right of eminent domain,” says Judge Dillon, in the appropriation of private property to public use, the opinion of the Legislature,'or of the corporate body or tribunal upon which it has conferred the power to determine the question, is conclusive upon the courts, since such a question is essentially political in its nature and not judicial.” The learned author further says: “Whether the specified use is a public use or purpose, or such use or purpose as will justify or sustain the compulsory taking of private property, is perhaps ultimately a judicial one, ¡and, if so, the courts cannot be absolutely concluded by the action or opinion of the legislative department. But, if the Legislature has declared the use or purpose to be a public one, its judgment will be respected by the courts, unless-the use be palpably private, or the necessity for the taking plainly without reasonable foundation.” 3 Dillon on Municipal Corporations, p. 1640, § 600, ¡and cases there cited.

As Chief Justice Cockrill, .speaking for the court in Railway Company v. Petty, 57 Ark. 359, 365, says: “When once the character of the use is found to be public, the court’s inquiry ends, and the legislative policy is left supreme.” “When once the Legislature, or the governmental agency to whom it has delegated the power, has determined to exercise that right in the manner prescribed by the law-making body, it is then the exclusive province and duty of the judiciary, when the character of the proposed use is challenged, to determine whether the purpose is a public one, and, if so, to preserve the right of the individual to just compensation for his property. The measure ¡of compensation is purely a judicial and not a legislative question.” Hoxie v. Gibson, 155 Ark. 338. See also North Laramie Land Co. v. Hoffman, 268 U. S. 276.

Now, when these axiomatic doctrines of constitutional law are applied to the facts of this record, it will be seen that the appellee was seeking to condemn, not a part, but the whole of the lots in controversy for the purpose of drainage. The appellee followed the procedure prescribed in §§ 4009 and 4010 of Crawford & Moses’ Digest. The undisputed testimony discloses that the drainage system for which the appellee was proposing to take appellants’ lots was a public purpose. Whether or not the appellee needed the whole of the lots in controversy for drainage purposes, and the measure of appellants’ compensation for the property taken, were purely questions of fact. It could serve no useful purpose and would unduly extend this opinion to set our further and discuss in detail the testimony bearing on these issues. We are convinced ,tbat the findings of the trial court on both issue are not clearly against the preponderance of the evidence.

The appellants contend that it was not within the power of the court to condemn an easement in their prop-, erty, but, if mistaken and if if be within the court’s .jurisdiction, that appellee did not take the proper steps to do so. In determining the correctness or incorrectness of the court’s decree, it must be judged by its legal effect taken as a whole, rather than by some particular words in the decree characterizing or designating the court’s action. As we have already stated, the effect of the court’s decree was to condemn appellants’ entire property for the use of the city. This action was clearly authorized by the Legislature under the general power conferred upon municipal corporations. Section 4006, C. & M. Digest, supra. It is a sound principle to apply under the doctrine of eminent 'domain that no more property of a private individual, and no greater interest therein, can be condemned and set apart for public use than is absolutely necessary. Cooley on Constitutional Limitations, 7 Ed. p. 779; Mills on Eminent Domain, p. 110, § 23.

Now, the language of our statute, § 4006, supra, “to enter upon or take,” is broad enough to confer the power to condemn either an easement or the fee as the exigencies of the situation may require. As is said by the Supreme Court of Massachusetts: “There ar.e no sacramental words which must be used in a statutory power to take and hold lands in order to give a right to take the land in fee.” Newton v. Perry, 163 Mass. 319. The facts of this record justify the trial court in reaching the conclusion that the appellee needed the lots in controversy to properly drain and sewer certain portions of the city. It was a permanent improvement, and to properly construct it, it was necessary to take over the entire rights of the appellants therein. Therefore, the following language of the Supreme Court of the United States in Sweet v. Rechel, 159 U. S. 380, 395, is exceedingly apposite: “On the whole, therefore, the plain of compelling the city to take the land in fee simple, and the owner to part with his whole title for a just compensation, would seem to be the most'simple and equitable that could be adopted.”

Therefore the trial court erred in not declaring that the city had the right to condemn the land in fee simple. The prayer of the cross appeal is granted, and the decree is reversed, with directions to enter a decree declaring the fee in the land in controversy to be in the town of Gurdon upon payment of the amount adjudged- as the value thereof.

       The record shows that all councilmen were present. (Rep.)


author: Hast, J.,

text:
    Massey v. Cunningham.
    Opinion delivered September 28, 1925.
    Criminal law — execution op sentence. — Where the accused was sentenced to serve 90 days in prison, and was released by the sheriff during good behavior, the sheriff was authorized to rearrest him after 90 days had expired, as the sheriff exceeded his powers in releasing him, and the judgment could be satisfied only by his actual imprisonment.
    Appeal from Pulaski Circuit Court, First Division; John W. Wade, Judge;
    affirmed.
    STATEMENT OE FACTS.
    Clifford Massey filed a petition in the circuit court for a writ of habeas corpus on the ground that George W. Cunningham, as a warden of the Pulaski County convict farm, was illegally restraining him of his liberty.
    The material facts are practically undisputed, and are as follows: On January 28, 1922, Clifford Massey was convicted in the circuit court of Pulaski County of the crime of transporting intoxicating liquors, and was sentenced by the court to ninety days’ imprisonment, and to pay a fine of $1,000. He served his term of imprisonment and paid $500 of his fine. His mother gave her note for $500 for the balance of the fine.
    At the time of his conviction two other criminal cases were pending against him in the circuit court upon appeal from the municipal court. After Massey and his mother made default in the payment of the $500 note, the two cases just referred to were called for trial,’ and it was agreed between the State and the defendant that the judgments of the lower court should be affirmed, which was done. In one of these cases Clifford Massey was fined $100 in the lower court, and the judgment was affirmed in the circuit court.
    The record in the other case shows that by consent of the State and the defendant, the judgment of the Little Bock municipal court for a fine of $100 and ninety days ’ imprisonment was affirmed. Judgment to this effect was accordingly entered in the circuit court.
    At the time these consent judgments were entered of record Massey was absent, and the judgments were consented to by his attorney in order to prevent a forfeiture on his bond. Subsequently Massey returned to Little Bock, Pulaski 'County, Arkansas, and was arrested by the sheriff of Pulaski County on two commitments issued on the last two judgments referred to. Massey entered into negotiations with the sheriff of Pulaski County whereby he was to pay the $500 note given for a part of his $1,000 fine above referred to, and in consideration thereof the sheriff would hold up the commitments in the last two cases during his good behavior. Massey paid the $500 to the sheriff, which was appropriated by him to the payment of the balance of his fine.
    The judgment of conviction in the two last-mentioned cases was in March, 1923. In April, 1925, the 'sheriff found uponi investigation that Clifford Massey was again violating the law, and he arrested him ¡on the commitments in the two cases just referred to, and confined him on the county convict farm, where prisoners sentenced to jail in Pulaski County ¡are by -law confined. Massey filed a petition for a writ of habeas corpus' against George ¡W. Cunningham, in whose custody he was placed, as warden of the county convict farm, on the ground that the sheriff had no right to rearrest him and commit him to jail after a period of considerably more than ninety days after the date of his original commitment for a term of three months or ninety days in the county jail.
    Under these facts the circuit court was of ¡the opinion that the petition of Clifford Massey for a writ of habeas corpus should be dismissed, and that he should be remanded into the custody of George W. Cunningham as warden on the county farm of Pulaski County to complete his sentence in accordance with the terms of his original commitment.
    Prom the judgment rendered in accordance with.the finding© of the circuit court, Clifford Massey has duly prosecuted an appeal to this court.

      Murphy, McHaney & Dumaway, for appellant.

      H. W. Applegate, Attorney General, and Darden Moose, Assistant, for appellee.
   Hast, J.,

(after stating* the facts). It appears fro!m the record that the sheriff of Pulaski County obtained two commitments based on judgments rendered in the Pulaski Circuit Court in two cases against the defendant. In one of the cases the defendant was fined $100, and in the other case he was fined $100 and sentenced to serve ninety days’ imprisonment in the county jail. After the defendant was arrested and placed in jail, the sheriff made an agreement with hiip that he would release him from jail during good behavior, if he would pay a note of $500, which his mother had given a former sheriff of Pulaski County for the 'balance of a fine of $1,000 adjudged against the defendant in the Pulaski Circuit 'Court. Pursuant to this agreement, the defendant paid the $500, and was by the sheriff released from jail. After more than three months had elapsed, the sheriff re-arrested the defendant and imprisoned him for the reason that he had violated the conditions of his release by again-being guilty of criminal conduct. The defendant, Massey, sued out a writ of habeas corpus on the ground that he could not be compelled to serve the ninety days’ imprisonment imposed upon him by the circuit court, because more than ninety days had elapsed after he had been discharged from custody by the sheriff.

There is a conflict between the authorities as to the power of a court to suspend sentence for an indefinite period of time, or to suspend the execution of a sentence indefinitely. The Supreme Court of the United States in a well-considered opinion by Chief Justice White has held that, in the absence of a statute, a federal district court exceeds its power by ordering that the execution of a sentence to imprisonment imposed by it upon a plea of guilty, 'be suspended indefinitely during good behavior " upon considerations wholly extraneous to the legality of the conviction. Ex parte United States, 242 U. S. 27, Ann. Cas. 1917B, p. 355, L. R. A. 1917E. p. 1178.

The contrary decisions on this question may be found in notes to the case just cited and in a case note to 26 A. L. R. at p. 399. Our court has not decided this mooted question, but it has held that a sentence may be pronounced on a plea of guilty at a term subsequent to that at which the plea was entered. Thurman v. State, 54 Ark. 120, and Cox v. State, 114 Ark. 234, and cases cited.

The reason for holding that a sentence may be suspended to a subsequent term is quite apparent. It may be that the punishment has been left to the court, and the presiding judge wishes to consider the matter further. It may be that a like case is pending in the appellate court, and that it is deemed best to await its decision. Again the court may think it just to suspend sentence for a while, to the end that the offender may apply for executive clemency. Other reasons might be given; but no useful purpose could be served thereby. Some courts make a difference between! the power to suspend the imposing of a sentence and the power to suspend the execution of a sentence.

It has been uniformly held that where a prisoner has escaped and is rearrested after the term for which he was committed had expired by lapse of time, he may be compelled to serve out his term of imprisonment under the -original sentence. In re Edwards, 43 N. J. L. 555; Hollon v. Hopkins, 21 Kan. 459; Dolan’s case, 101 Mass. 219: Ex parte Bell, 56 Miss. 282; Cleek v. Commonwealth, 21 Grat., Va., 777; State v. Cockerham, 24 N. C. 204; and 2 Bishop’s New Criminal Procedure, § 1385.

The reason i>s that the time at which a sentence shall be darned into execution forms no part of the judgment of tlie court. The judgment is the penalty of the law as declared by the court, while the direction with respect to the time of carrying- it into effect is in the nature of an awiard of execution. So it is said that the essential portion of a sentence is the punishment, including the kind of punishment and the amount thereof, without reference to the time when it is to be inflicted. Of course, the sentence should as a rule be strictly executed; but it can not be changed or modified, except by legal action of some sort.

It has been generally said that, where the penalty is imprisonment, the sentence of the law is to be satisfied only by the actual suffering of the imprisonment imposed unless remitted by death or by some legal authority. The expiration of /time without imprisonment is in no sense an execution of the sentence.

In the application of the rule it has been held that, in cases of a void stay of execution issued by a court where the convicted defendant is at liberty and has notservedhis sentence, he mlay be rtea/rrested as an escape, 'and ordered into custody upon the unexecuted sentence. Ex parte Vance, 90 Cal. 208, 27 Pac. 209, 13 L. R. A. 574; People v. Patrich, 118 Cal. 332, 50 Pac. 425; Ex parte Collins (Cal. Ct. of Ap.) 97 Pac. 188; Neal v. State, 104 Ga. 509, 30 S. E.858, 42 L. R. A. 190, 60 Am. St. Repts. 175; Mann v. People (Colo. Ct. of Ap .) 66 Pac. 452; and Spencer v. State (Tenn.), 140 S. W. 597, 38 L. R. A. (N. S.) 680.

The reasoning of these cases applies with greater force to the case at bar. The sheriff was not vested with judicial authority or the power to grant paroles or reprieves. It is not necessary to discuss, the question of whether the Legislature could confer upon him any such authority. It is sufficient to say that it has not done so. In the present case it is apparent from the record that the sheriff released Massey mainly as a reformatory measure to secure future good behavior on his part. It is also apparent that Massey acted in good faith in mailing the agreement; but his act was none the less voluntary. Tlie sheriff wholly exceeded his pewters in releasing Massey from imprisonment, and Ms act was void. TMs being true, he had the right to rearrest Massey to the end that (he might serve his sentence. It is immaterial that more than ninety days have elapsed since the sheriff released Massey. The latter was not in prison during that time, and the judgment 'could (be satisfied only by Ms actual imprisonment for the adjudged period. The time of Massey’s absence from confinement, under a void release, can not be considered as having been spent in jail in satisfaction, of the judgment which required his actual imprisonment.

It follows that the judgment of the circuit court in dismissing Massey’s petition for a writ of habeas corpus was correct, and it will be affirmed.


author: McCulloch, C. J.

text:
    Schichtl v. Home Life & Accident Company.
    Opinion delivered October 5, 1925.
    Mortgages — right to follow funds derived from condemnation proceeding. — 'Where a mortgagee, knowing of condemnation proceeding against the mortgaged property, though not a party thereto, permitted the mortgagor to receive the funds so received .and to use them in improving the mortgaged property and in the purchase of a home elsewhere, and thereafter proceeded to foreclose his mortgages on the property, it will not be permitted thereafter to assert a lien on the homestead property acquired with such funds.
    Appeal from Pulaski Chancery Court; John E. Mar-, tmeau, Chancellor;
    reversed.

      Mann & McCulloch, for appellant.

      John M. Rose, for appellee.
   McCulloch, C. J.

This is an action instituted by appellee in the chancery court of Pulaski County against appellants, J. N. SeMchtl and Ms wife, Annie Gertrude ScMchtl, to enforce an asserted lien against certain reial estate in the city of Little Hoick, the legal title to wMeih is in Mrs. Schiohtl and constitutes her homestead. There was a decree ini flavor 'of 'appellee declaring a hen on the property in question, land an appeal has been prosecuted to this court from that decree.

The facts as established by the preponderance of the evidence-, though in some instances disputed, are as follows: Prior to the acquisition, in the year 1922, of the property in controversy, the Schiehtls resided in Lee County, Arkansas, and J. N. Sehiehtl was the owner of two large tracts of farm land, one containing about six hundred acres, known as the Sullivan place, and the other containing something* over 1100 acres known as the Highland place. Sehiehtl purchased the Sullivan place in August, 1919, from J. K. 'Sullivan, the then owner, for the price of $40,000, land paid $10,000 cash and executed three equal notes, payable annually, for the remainder of the purchase price and executed a mortgage pn the land to secure -the notes. These notes were sold and transí err edhy Sullivan to appellee. About the same-time Sehiehtl purchased the Highland place, which adjoins the Sullivan place, the purchase price being $28,-500, and he paid all of it except $5,000, a mortgage being-given to secure a note for that amount, and that note was also sold and transferred 'by the holder to appellee.

Both of the tracts of land in question were operated as farms, a portion of each being* in cultivation. Both of the farms fronted on the Mississippi River and were in the route of the levee constructed and maintained by the St. Francis Levee District. In the year 1920' the board of directors of the St. Francis Levee District, in accordance with a proposed plan to- extend and enlarge the levee along the Mississippi River in the southern part of Lee 'County, instituted statutory proceedings against Schichitl to condemn a right-of-way through the lands referred to, and Sohichtl was made a party to, and notified of, the proceedings, but appellee as the holder of the mortgage notes referred to above was not made a party and was not given any legal notice of the proceedings. There was involved in the condemnation proceedings forty-seven acres of the Highland place and twenty-mx acres of the Sullivan place, and there was an award of damages in favor of Schichtl in the gross sum of $19,570.'66, of ■which, the sum of $5,665.75 was for the value of the lands taken from, the Sullivan place, and the remainder wias for the value of lands taken from the Highland place. A check for the gross amount was delivered by the Levee District to Schichtl on March 8, 1922, ¡and he deposited the check to his own checking account in a bank in Marianna with which he had been a depositor for many years.

On March 29, 1922, the property in Little Bock, which consisted of a lot and a residence building, Was purchased and title taken in the name of Mrs. Schichtl. The price of the property was $7,000, which was paid by a check drawn by J. N. Schichtl on the funds deposited to his own credit in the Miarianna bank — (the deposit which consisted of the check from the St. Francis Levee District. Schichtl and his wife moved to Little Bock immediately and established their homestead on the property in question and have so occupied it continuously since that time. Nothing had been paid on either of the principal notes held by appellee, but Schichtl had paid interest amounting to $4,100, having borrowed that sum from the bank at Marianna where this deposit was made, and the funds thus borrowed were repaid t0‘ the bank out of the deposit referred to above. It is also undisputed that Schichtl expended about $9,000 in permanent improvements on the two farms mentioned, some of it on one place and some of it on the other. At the time of -the deposit of these funds in the bank iait Marianna the Schichtl notes owned by appellee were in the hands of the bank for collection, and the bank officials had, at the direction of the appellee, been importuning'Schichtl for payment. The officials of the bank, as well as the agent of appellee in Little Bock who had charge of these collections, were apprised of the pendency of the condemnation proceedings instituted by the St. Francis Levee District against Schichtl, but no steps were taken by appellee to assert its lien on the lands sought to be taken or to arrest payment of the funds to Schichtl. The testimony shows, however, that Schichtl promised to make a substantial payment to appellee ont of the funds to be paid by the St. Francis Levee District on the award. This was not done, however, and the money was used by Schichtl for other purposes, namely, for the making of improvements on the places, the repayment of the amount borrowed from the bank to use in paying interest to appellee, and in the purchase of the Little Lock property now in controversy.

In June, 1922, appellee 'commenced an action in the chancery court of Lee County against Schichtl to .foreclose the liens on the Sullivan place and the Highland place according' to the descriptions in the mortgage, which included the lands taken under condemnation. A decree in favor of appellee was rendered for the amount of the debt 'and accrued interest on the Sullivan place, amounting to $31,450, and on the Highland place for the sum of. about $5000. Mrs. 'Schichtl was made party defendant to that action for the purpose of barring her right of dower, and there was a personal decree against J. N. .Schichtl for the respective amounts mentioned above, and a mortgage lien was declared on the lands, and the same were ordered sold to pay the debts. At the sale by the commissioner appellee purchased the Sullivan place for the price of $15,000, leaving a deficiency judgment against Schichtl in the sum of $16,450, and purchased the Highland place at the price of $5,000, the full amount of the decree against that place. According to the undisputed evidence in the ease, the Sullivan place at the time of the sale and at the time of the trial of this cause below was of 'the value of thirty to thirty-five thousand dollars, and the Highland place was of the value of twenty to twenty-five thousand dollars. The merchantable timber on the Highland place at that time was shown to be of the value of $2,000, and was sold by appellee to a timber dealer for that sum.

Subsequent to the confirmation of the sale and the conveyance of the land by the commissioner to appellee, appellee instituted the present action, asserting a lien on the Little Book property in 'controversy on the ground that its mortgage lien extended to the fnnds used in the purchase of the property which were a portion of the award of damage© to Schichtl for the taking of his property in the condemnation proceedings. The contention of appellee is that, notwithstanding the fact that appellee wias not made a party to the condemnation proceedings, the funds paid by the St. Francis Levee District in satisfaction of the award became subject to a lien in lieu of the lien on the land, and that appellee was entitled to trace and follow the funds into the property purchased in Mrs. 'Schichtl’s name and to enforce it against that property. On the other hand, appellants plead, among other things, that appellee waived its right to claim the funds awarded in the condemnation proceedings by knowingly permitting the consummation of the proceedings and an award and payment thereof to Schichtl and by proceeding to foreclose the mortgage on all of the lands, including the parts condemned, and that appellee is thereby estopped to assert a lien on the property purchased with a portion of the funds.

Our conclusion is that the contention of appellants is sound, and that the chancery court erred in declining to sustain it. The rights of a mortgagee who has been ’omitted from the proceedings to condemn a portion of the mortgaged property are correctly stated in 19 B. C. L., p. 3M, as follows:

“And in the jurisdictions where notice of the condemnation proceedings must be given to a mortgagee, as being considered an 1 owner ’ or by reason of the language of the statute, in the absence of notice he is not bound by the proceedings, and his lien on the land is not affected. Hence, when the eondemner has, under such circumstances, made payment to the mortgagor, the mortgagee can compel a second payment to himself, or foreclose on the land taken, though he must first resort to .the land remaining after the condemnation. When a mortgagee resorts to such .property as remains unaffected by the condemnation proceedings, and thereby through foreclosure satisfies the debt secured, with costs and charges, his lien on the award terminates, though it may be otherwise if there is a deficiency.”

The statutes of this State authorizing condemnation proceedings by levee and drainage districts (Crawford & Moses’ Digest, § 3935) require that all known interested parties shall be notified by actual sérvice of process, and unknown and non-resident parties by publication of warning order, and this court, has decided that all persons interested in the lands must be notified in the manner provided by statute, and that, if the condemner pays the award without giving such notice, it does so at its peril. Young v. Red Fork Levee District, 124 Ark. 61. The rule has been announced by this court in other cases ’that the mortgagee or other omitted party cannot be deprived of his superior lien by condemnation and award made without notice. Organ v. Memphis & Little Rock R. Co., 51 Ark. 325; Hare v. Ft. Smith & Warren R. Co., 104 Ark. 187. The ruling in Ruling Case Law .as stated above is in accordance with our •statute and with the rule announced in the decisions of this court. It is a mooted question, however, whether or not a mortgagee who has been omitted from the condemnation proceedings can pursue the funds paid over to the mortgagor on the award, or whether a mortgagee is confined to its remedy against the condemner. We pretermit any discussion of that question, for, as before stated, we are of the opinion that appellee, under the facts of tlfis case, has by estoppel waived its right to pursue the funds paid over to the mortgagor and assert a lien thereon.

According to the preponderance of the evidence in the case, appellee knew of the pendency of the condemnation proceedings, knew that it was omitted from those ■proceedings, and that the funds were to be paid over to E. Schichtl, and of his failure to pay any of it on the mortgage debt, and, after the funds had actually been paid over to Schichtl and deposited in the bank, it permitted Schichtl to use the funds, partly in improving the mort■gaged farms -and enhancing the value thereof and in the purchase of Little Book property for use as a homestead, and then appellee proceeded to foreclose the mortgages on all of the lands, including that part condemned, and to purchase the same at less than half the actual value. With knowledge of all the facts, appellee elected to proceed against the condemned lands without asserting any lien, and, after securing all the advantages of that proceeding, it is too late now to assert a lien on the property purchased by some of the funds awarded in the condemnation. Appellee accepted 'all the benefits by foreclosure on the lands, the value of which had been enhanced by permanent improvements made by funds from the award in. excess of that portion which was derived from the 'Condemnation of the Sullivan place, and it wonld not be in accordance •with the principles of equity to permit appellee to take advantage of that fact and then to turn and claim that the particular amount of the funds derived from that source were used in purchasing the Little Bock property. Stopp v. Wilt, 177 Ill. 620.

We are of the opinion therefore that the chancellor erred in his conclusion, so the decree is reversed, and the cause remanded with directions to dismiss the complaint for want of equity.

Wood, J., dissents.