author: Smith, J.

text:
    Western Clay Drainage District v. Wynn.
    Opinion delivered July 8, 1929.

      F. G. Taylor, for appellant.

      G. 0. Raley, for appellee.
   Smith, J.

On August 24, 1927, this suit was begun by the Western Clay Drainage District (which was created by special act No. 368 of the Acts of 1907 — Acts 1907, page 890) to foreclose the lien for delinquent drainage assessments upon numerous tracts of land in the district, which were described in the complaint. The suit was one in rem, as the act creating the district authorized, and appellees intervened and alleged that they were the owners of certain lands therein described, against which the lien for the 1918 drainage taxes was asserted. The pleading was in the nature of a demurrer, and was so treated by the court, and it alleged that no cause of action ivas shown against the lands upon which it was claimed that the 1918 taxes were due and delinquent. The demurrer was sustained, and the cause was dismissed as to appellees’ lands, and this appeal is from that decree.

The action of the court was based upon the provisions of act 534 of the Acts of 1921 (General Acts 1921, page 573). This is an act entitled: “An act to provide for the filing of a delinquent list of lands, town lots, railroads and tramroads in road and drainage districts, and for the collection of delinquent taxes thereon.” The act requires that lists of delinquent lands be filed with the clerk of the chancery court, and provides that re-demptions may be effected through that officer. Section 4 of the act reads as follows: “When the board of commissioners, or any one authorized by law to file suit for the collection of such delinquent taxes, desires to commence said suit, they shall obtain a certified copy of said list from the said clerk, which shall be filed with the complaint and taken as a part thereof, and the clerk, for making said list, shall be entitled to ten cents per tract, which shall be taxed as costs in said suit. No suit for the collection of such delinquent taxes shall be brought after three years from date same became delinquent. ’ ’

It appears, from the face of the complaint, that suit was not brought against appellees ’ lands until more than three years had expired since the lands became delinquent for the nonpayment of the taxes sought to be collected, and the cause of action was therefore barred by the statute quoted, if it applies.

It is insisted that act 534 applies only to improvement districts created under general statutes, and not to those organized by special acts of the General Assembly, as was the appellant drainage district. There appears to be as much reason for the enactment of a statute of repose in a district created by a special act of the General Assembly as in one organized under the general law, and we find nothing in act 534 which limits its operation to districts of a particular character. It apparently applies to all suits to enforce the collection of delinquent drainage taxes, The cases of Moore v. Long Prairie Levee District, 153 Ark. 85, 239 S. W. 380; Beasley v. Hornor, 173 Ark. 295, 292 S. W. 130; and Swearingen v. State, use of Benton County, 160 Ark. 326, 254 S. W. 537, construed portions of act 534 of the Acts of 1921, other than § 4 thereof, and the districts there referred to were organized under special acts of the General Assembly, and no question was made in any of those cases against the applicability of act 534 to districts organized under special statutes.

It is also insisted that any legislation imposing a limitation on the time within which suits may be brought to enforce payment of the delinquent assessments is inhibited by subdivision (m) of § 8 of the act creating the district. This paragraph of the act reads as f ollows:

“The said special assessment shall be a charge and a lien against all the said property in said subdistrict from the date of the filing of said list of assessments and lands assessed in the office of the recorder of deeds, as hereinbefore provided, and shall be entitled to precedence over all judgments, executions, incumbrances or liens, whensoever created and of whatsoever character, and shall so continue until such special assessment, with any penalty, interest or cost that may accrue thereon, shall be fully paid. ’ ’

The subsection quoted must, of course, be read and construed in connection with other portions of the act of which it is a part. The drainage district is divided into five subdistricts. Benefits were separately assessed in each of these districts, and the act authorizes the payment thereof to be extended over a period of time not exceeding twenty-five years after the assessments were made. This special assessment, the payment of which might, under the act, be distributed over a period of years, was made a lien on the property against which it was assessed, which “shall be entitled to precedence over all judgments, * * * and shall so continue until such special assessment, with any penalty, interest or cost that may accrue thereon, shall be fully paid.”

The language just quoted means that this paramount lien shall continue and be enforceable as to each of the annual installments into which the betterment assessment is divided; but the act provides for annual collection of these installments, and suit is authorized to enforce payment of delinquent taxes as delinquencies occur.

Section 4 of act 534 does not in any manner affect the right to sue to enforce payment of delinquent taxes, nor does it change the procedure provided by any act, general or special, by which that right is made effectual. It only imposes a limitation as to the time within which the right must be exercised after it has accrued, and this time is three years. This does not appear to he unreasonable, in view of the priority which the law gives this lien, and if the Legislature may not impose this requirement, as to the time within which suit may he brought after the right to sue accrues, then it must follow that the drainage district could postpone any effort to collect the proportionate part of the installment due in any year until all installments were due and for such length of time thereafter as would be required to bar the proceeding to enforce the collection of the last installment. We do not think the act contemplated such procrastination.

We think it was competent for the General Assembly to enact a reasonable statute of limitation within which suits of this character might be brought, and that act 534 is a proper exercise of this power. That such governmental agencies as is the appellant drainage district may lose a right given it by law by limitation or by laches, as settled in the case of Board of Levee Inspectors of Chicot County v. Southwestern Land & Timber Co., 112 Ark. 467, 166 S. W. 389. It was there said:

“We have never before decided the question directly whether a levee board, or other governmental agency, is exempt from the application of the doctrine of laches. In Book v. Polk, 81 Ark. 244, 98 S. W. 1049, the court held that the St. Francis Levee District was estopped by the conduct of its officers; and in City of Fort Smith v. McKibbin, 41 Ark. 45, it was held that municipal corporations are 'bound, the same as individuals, by the statute of limitations, unless the statute expressly provides otherwise.
‘ ‘-The well-recognized rule is that the maxim, nullum tempus occurrit regi, applies only to the sovereign itself, and not to public corporations or other such governmental agencies to whom powers are delegated. Levee districts are, as we have said in many cases, only governmental agencies, clothed with such powers as are expressly conferred or arise by necessary implication. They are, however, quasi corporations, with power to sue and be sued. Board of Directors St. Francis Levee District v. Fleming, 93 Ark. 490, 125 S. W. 132, 659. If such agencies are barred by the statute of limitations, they are equally barred by delay of enforcement of rights, under circumstances which would invoke against individuals the equitable doctrine of laches. (Citing authorities).”

As it affirmatively appears from the allegations of the complaint that the right of the appellant drainage district was barred by the provisions of § 4 of act 534 to sue for the 1918 taxes in 1927, the demurrer was properly sustained (Sanders v. Flenniken, 172 Ark. 454, 289 S. W. 485), and the decree so ordering is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Whitaker v. Mitchell.
    Opinion delivered July 8, 1929.

      Chas. D. Frierson, f or appellant.

      Maddox & Greer and N. F. Lamb, for appellee.
   Smith, J.

At the general election held in Poinsett County on November 6, 1928, a majority of the electors voted in favor of a “stock law,” and this suit was brought to enjoin the officers of the county from putting the election into effect. As ground therefor it is alleged that neither the election commissioners nor the sheriff of the county gave notice thereof by proclamation or ' otherwise, and that the election was void as having been held without legal authority.

The election was held pursuant to act 205 of the Acts, of 1927. Acts 1927, page 686. It is there provided that ten per cent, of the electors of any county in the State may petition the county court to order an election restraining certain animals from running at large, and when such petition is filed it is made the duty of the county court to “malee an order for such election to be held at any general or special election of the county or State officers.”

The act further provides that: “The county court may make an order calling said election to be held on a day other than for the election for State, county or township officers, said day to be named in said order, when a bond is filed by said petitioners that they will pay all costs of said special election; that all special elections shall be held under the provisions of the general election laws of this State. * *” and if the majority vote is in favor of restraining the stock, the county clerk shall give notice of that fact by publication in some newspaper of the county.

The petition upon which the election in question was held was filed with the county court on October 24, 1928, and the prayer thereof was granted by an order of the court made and entered of record that day, and the election was ordered as prayed by petitioners, to be held at the ensuing general election, November 6, 1928.

Neither the election commissioners nor the sheriff gave notice, by proclamation or otherwise, that the stock law in question would be voted on at the general election, but the petitioners caused a certified copy of the order of the county court ordering the election to be published in The Modern News, a newspaper of general circulation published at Harrisburg, the county seat, on October 26, 1928, and in the issue a week later the order was published a second time.

It appears, from a stipulation entered into by opposing counsel at the trial from which this appeal comes, that at the 1926 general election only 1,740 persons voted for Governor, whereas 3,346 votes were cast at the 1928 general election for candidates for that office. The highest vote cast for the candidates for any office in 1928 was 3,550 and the lowest 3,167. The highest vote oast upon any question at the 1928 election was 3,204, this being the total vote on the stock law, of which 2,113 were cast for the law and 1,091 against it, and the lowest vote cast on any question was 2,787, this vote being cast upon proposed Constitutional Amendment No. 18.

The cause was heard on a stipulation covering the above and other facts, and the suit was dismissed as being without equity, and this appeal is from that decree.

Learned counsel for appellants contends that the election here questioned was a special and not a general one, and that there was no such notice as the law requires to make it legal. It is pointed out that by § 3717, C. & M. Digest, it is made the duty of the sheriff to give notice by a proclamation twenty days before a general election and for ten days before a special one, and § 3718, C. & M. Digest, requires that a copy of this proclamation be posted at the places fixed for holding the election and in two or more public places in each township, and that a copy be published in a newspaper, if one be published in the county. No notice was given by the election commissioners under § 3720, C. & M. Digest.

Did the failure to comply with the statute cited invalidate the election? The chancellor held that it did not; and we concur in that holding.

The case of Wheat v. Smith, 50 Ark. 266, 7 S. W. 161, was a contest over the office of circuit clerk, arising out of a special election to fill a vacancy in that office, and the validity of the election was questioned upon the ground that the notice required by the statute had not been given. In holding the election valid, Chief Justice Cockrill said:

“When a special election to fill a vacancy is ordered, there is no presumption that the voters know the date fixed by the writ of election, and they must be informed of it. But the established rule is that the particular form and manner pointed out by the statute for giving notice is not essential. Actual notice to the great body of electors is sufficient. The question in such oases is whether the want of the statutory notice has resulted in depriving sufficient of the electors of the opportunity to exercise their franchise, to change the result of the election. McCrary on Elections, §§ 141-48; Commonwealth v. Smith, 132 Mass. 289; State v. Orvis, 20 Wis. 235; State v. McKinney, 25 Id. 416; Dishon v. Smith, 10 Iowa 212; State v. Skirving, 19 Neb. 497.
“The courts hold that ‘the voice of the people is not to be rejected for a defect or want of notice, if they liave in truth been called upon and have spoken.’ Dishon v. Smith, supra. If the law were otherwise, it would, as was said by the court in Foster v. Scarff, 15 Ohio St. 532, ‘always be in the power of a ministerial officer by his malfeasance to prevent a legal election.’ When the election is legally ordered, and the electors are actually apprised of the time and place appointed for holding it, the misfeasance or nonfeasance of the officer upon whom' the statute-devolves the duty of giving the election notice cannot deprive the electors of the right to express their will through their ballots.”

This has become a leading case, and has been cited many times by this and other courts.

Here it appears that the order of the county court ordering the’ election was twice published in the county newspapers, the first publication being ten days before the election, and the great body of the electors appear to have been apprised of the election and to have voted at it. It is a matter of common knowledge that the submission of such a question as a stock law arouses the widest interest and frequently the bitterest feeling, and it is highly probable that the submission of this question at the 1928 election caused the vote at that election to be almost double the vote cast at the preceding general election of 1926. A majority of more than a thousand and a vote of nearly two to one was cast in favor of the stock law, and there appears therefore to be no question whether the want of. the statutory notice has resulted in depriving sufficient of the electors of the opportunity to exercise their franchise to change the result of the election.

In the case of Wallace v. Kansas City Sou. Ry. Co., 169 Ark. 905, 279 S. W. 1, we quoted from the case of Hogins v. Bulloch, 92 Arn. 67, 121 S. W. 1064, 19 Ann. Cas. 822, the following quotation from the Supreme Court of Indiana:

“ ‘All provisions of the election, law are mandatory if enforcement is sought before election in a direct proceeding for that purpose, but after election all should be held directory only, in support of the result, unless of a character to effect an obstruction to the free and intelligent casting of the vote, or to the ascertainment of the result, or unless the provisions affect an essential element of the election, or unless it is expressly declared by the statute that the particular act is essential to the validity of an election, or that its omission shall render it void.’ Jones v. State, 153 Ind. 440, 55 N. E. 229.”

So here the statutory provisions were mandatory in the sense that compliance with them could have been coerced before the election, but, as the notice which was given, while not complying with the statute, appears to have been sufficient to apprise the great body of the electors of the fact that the election would be held, and they have participated therein, we are constrained to affirm the action of the chancellor in upholding the election.

Decree affirmed.


author: Humphreys, J.

text:
    McClendon v. State.
    Opinion delivered July 8, 1929.

      John Owens and Tom Kidd, for appellant.

      Hal L. Norwood, Attorney General, and Robert F. Smith, Assistant, for appellee.
   Humphreys, J.

Appellant was indicted, tried and convicted in 'the circuit court of Pike County for the crime of murder in the second degree, for wounding Austin Cox with a knife, on the 5th day of May, 1928, from the effects of which he died on the 7th day of May, 1928, and was adjudged to serve a term of five years in the State Penitentiary as a punishment therefor, from which is this appeal.

Among the assignments of error urged by appellant for a reversal of the judgment was the refusal of the trial court to allow him to introduce in evidence several judgments of conviction for felonies committed by the deceased, Austin Cox, as affecting the credibility of his dying declarations relative to the difficulty and resultant tragedy, which the State introduced in evidence. It is provided in § 41*87 of Crawford & Moses’ Digest that a witness may be impeached by the introduction of a judgment showing' his conviction of a felony.

Under the rules of evidence in this State, dying declarations are treated as other sworn testimony when introduced in evidence, and for that reason are subject to be impeached in the same manner as other testimony is impeached. Alford v. State, 161 Art. 256, 255 S. W. 884; Clark v. State, 163 Ark. 180, 259 S. W. 378. The trial court therefore committed reversible error in excluding the judgments of convictions for felonies of the deceased as affecting the credibility of his dying declarations which were introduced in evidence by the State.

In this connection the trial court also erred in excluding the testimony of Dr. W. W. Chamberlin, to the effect that the deceased was not in a dying condition when brought to the hospital, as tending to refute the testimony of the witnesses who testified that he made dying declarations to them before reaching the hospital concerning the difficulty and the wounds he had received at the hand of appellant. The question of whether the deceased made the statements to the several witnesses in view of impending death, was a question for the jury, in the last analysis, and his physical condition upon his arrival at the hospital was a circumstance which might aid them in determining that question. The testimony of the physician was admissible for that purpose.

Testimony was introduced by appellant tending to show that he inflicted the knife wound in the defense of his son.

Another assignment of error urged by appellant for a reversal of the judgment was the giving by the trial court of instructions 11, 12, 13 and 15, at the instance of the State, because it is alleged that they cut off the right of appellant to go to the defense of his son. The instructions do not have that effect, when read in connection with instructions numbered 16, 17 and 18 given by the trial court at the request of appellant. The first instructions complained of dealt with appellant’s right to defend himself, and the instructions which the court gave at appellant’s instance dealt with his right to g'o to the defense of his son. There is no conflict whatever in the instructions, and when read together they present the whole law of self-defense correctly.

Another assignment of error urged by appellant for a reversal of the judgment is that the trial court told the jury, in instruction No. 27, that they might convict appellant for second degree murder without finding that the killing was done with malice. Instruction No. 27 was unhappily worded, but it is clear that the trial court did not intend in the use of the language in said instruction to tell the jury that there icould be a conviction of murder in the second degree without malice. He specifically instructed them, in instruction No. 1, that they must find the existence of malice in order to convict appellant of murder in the second degree. As the case must be reversed and remanded for a new trial for errors heretofore pointed out, we are sure the trial court will eliminate the alleged ambiguity in instruction No. 27. We would not reverse the case upon this alleged error alone.

Another assignment of error urged by appellant for a reversal of the judgment is that the trial court told the jury, in instruction No. 28, that it was appellant’s duty to retreat after being attacked before he could act in necessary self-defense. This instruction does not bear the interpretation placed upon it by appellant, when read as a whole. The first part of the instruction is a correct declaration of law, and it is apparent that the second part of the instruction was given in explanation of the first. It was unnecessary to have added the explanation to the instruction, but we do not think it in any way prejudiced the rights of appellant. Upon a new trial of the cause the explanatory feature of the instruction will doubtless be eliminated by the trial court.

Appellant' urges other objections to instructions given and refused by the trial court, which we think are untenable.

The judgment is reversed, and the cause is remanded for a new trial.


text:
    Medling v. Stewart & Oliver.
    Opinion delivered July 8, 1929.

      McNalley & Sellers and John M. Shackleford, for appellant.

      Coulter S Coulter, for appellee.
   Humphreys, J.

Appellant brought this suit against appellees in the chancery court of Union County, First Division, to enforce specific performance of a contract whereby appellees agreed to allow appellant a one-eighth part of whatever royalty they might receive in the southwest quarter of the northwest quarter and the north half of the southeast quarter of the northwest quarter, all in section 3, township 17 south, range 14 west, in said county, by virtue of any compromise settlement appellant could effectuate, within thirty days from the date of the contract, in a suit then pending in the Second Division of said court, wherein Harrison et al. were plaintiffs and Perdue et al. were defendants, which suit was instituted by appellees herein as attorneys for Harrison et al. to recover certain mineral royalties in said, real estate. Appellant alleged in his complaint and amendment thereto that through his efforts a compromise was agreed upon within thirty days from the contract, which was later consummated by the execution of the necessary papers, whereby the appellees received a 1/32 royalty interest in said real estate, which entitled appellant to a 1/256 royalty interest under his contract with appellees. Appellant attached his contract with appellees to his complaint as an exhibit, which is as follows:

“El Dorado, April 20, 1928.
“If a settlement or compromise of the lawsuit of Dora Harrison and others against W. H. Perdue and others acceptable to Stewart & Oliver, and which they accept (is perfected), we agree to allow J. E. Medling one-eighth of any part (royalty or money) that we may receive as our share under our contract with the plaintiffs, provided such settlement or compromise is brought about or effected as the result of the efforts of J. E. Medling within thirty days from this date.
“Stewart & Oliver,
By Zeb A. Stewart. ’ ’

Appellees filed a general demurrer to the complaint and amendment thereto, which was sustained, and, appellant refusing to plead further, his complaint was dismissed, from which is this appeal.

The trial court sustained the demurrer to the complaint and amendment thereto upon the grounds, first, that the amendment relied upon by appellant did not sufficiently describe the land to enforce the contract relative thereto, and, second, that the contract had terminated by the lapse of thirty days before the compromise was consummated.

Appellant contends for a reversal of the decree of the trial court for the alleged reason that his complaint and amendment thereto state a cause of action.

1. The contract between appellant and appellees described the land by reference to the contract between appellees and their clients, Dora Harrison and others. The purport of the complaint is to the effect that appel-lees entered into a contract with Dora Harrison and others to recover royalties for them in a sixty-acre tract of land particularly described as follows: Southwest quarter of the northwest quarter and the north half of the southeast quarter of the northwest quarter, all in section 3, township 17 south, range 14 west, in said county, and that appellees would convey' him an undivided one-eighth interest in such part of the royalties as they might receive for their fee, in consideration for his services in effecting a compromise of the case satisfactory to them. The written contract furnishes a key by which the land may be identified and found. It refers to another contract definitely describing the land out of which the royalties should be recovered, and it was not void for uncertainty of description. Tolle v. Curley, 159 Ark. 175, 251 S. W. 377.

2. The complaint and amendment thereto alleged and the demurrer admitted that the compromise was agreed upon within thirty days from the date of the contract between appellant and appellees, but that it'was not consummated until sometime thereafter. The general rule in equity is that time will not be regarded as of the essence of a contract unless so expressed by the parties thereto, or unless the nature of the agreement requires that it be so treated, and even then such a stipulation may be waived by the conduct of the parties. Atkins v. Rison, 25 Ark. 138; Banks v. Bowman, 83 Ark. 534, 104 S. W. 209; Braddock v. England, 87 Ark. 393, 112 S. W. 883; Turpin v. Beach, 88 Ark. 604, 115 S. W. 404; Friar v. Baldridge, 91 Ark. 133, 120 S. W. 989; Three States Lumber Co. v. Bowen, 95 Ark. 529, 129 S. W. 799. The contract in the instant case did not specifically provide that time should be of the essence thereof, and even though the language used was so construed, the alleged conduct of the appellees in urging appellant to continue his services in their behalf until the contract was finally consummated, and acceptance of the benefits thereunder, clearly waived the time limit in the contract.

On account of the error indicated the decree is reversed, and the canse is remanded for proceedings not inconsistent with this opinion.


author: Kirby, J.

text:
    Bowen v. Frank.
    Opinion delivered July 8, 1929.

      F. F. Harrelson, for appellant.

      A. H. Murray and Rm%dolph & Randolph, for appellee.
   Kirby, J.

This suit was brought by four of the seven

children of John F. Frank, deceased, devisees under his will, against Walter A. Frank and Mrs. Leonora F. Bowen, two of his children, and all his grandchildren, to have the title of the plaintiffs to certain lands located in St. Francis County, Arkansas, and others in Lee County, Arkansas, quieted and confirmed in them in fee simple.

This is the second appeal of this case, the decree of the chancellor on the first appeal being reversed, and the cause remanded, because the decree was premature. Frank v. Frank, 175 Ark. 286, 298 S. W. 1026. Upon the mandate o'f this court being filed in the St. Francis Chancery Court, this decree was rendered on the date of its filing, Dec. 3, 1927. An amendment was filed to the complaint, alleging’' that Harriot Amelia Frank, who was a minor at the time of the suit brought, had reached her majority; that Amelia L. Bowen had intermarried with Alfred C. Smith; the marriage of Monroe C. Frank, with prayer that Alfred C. Smith, Mary Francis Frank, the wife of Monroe C. Frank, be made parties defendant, which was done by constructive service and publication and proof of a warning order. F. F. Harrelson was appointed guardian ad litem for Hughetta Bowen, a non compos mentis, and filed a demurrer to tlie complaint, both as sucli guardian and as attorney for the defendants, W. A. Frank, Mrs. L. F. Bowen and M. C. Frank. The demurrers being- overruled, tbe said defendants declined to plead further, and the guardian ad litem filed answer to the complaint on April 14, 1928, denying all the material allegations thereof. On the hearing the court found for the plaintiffs, and rendered a decree quieting and confirming the title as prayed for in the complaint, from which decree this appeal is prosecuted.- The demurrers raised the question of jurisdiction of the court of the subject-matter of the action, and of the sufficiency of the complaint.

The complaint alleged that plaintiffs are owners in severalty of certain described tracts of land in St. Francis and Lee counties, Arkansas, and that the defendants, children of John F. Frank, deceased, had been allotted other lands in Lee County; that the children of the said Frank, deceased, both plaintiffs and defendants, claimed title to the lands from a common source as the devisees of the said John F. Frank, who died testate on October 6, 1904, seized and possessed of the said lands. The will was admitted to probate in Shelby County, Tennessee, the residence of the testator, and an authenticated copy duly probated in St. Francis County, Arkansas. A copy of the will was exhibited with the complaint, item 4 of which reads as follows:

“Item four. I hereby give, devise and bequeath to my seven children and legal heirs, to-wit, Charles F., Robert B., John L., Walter A., Clara M., Elizabeth G., and Lenora E. Frank, now Mrs. S. A. Bowen, all of my property, real, personal and mixed, wheresoever situated, not already disposed of, which I now own or may hereafter acquire, and of which I may die seized and possessed, absolutely and in fee simple, and in equal shares. The division shall be made by three commissioners to be appointed by my said children, and the lots and parcels of land so divided shall be drawn for by them, and any difference in the valuation he settled among themselves. The property of my. daughters, however, shall he held and owned by them for their sole and separate use and enjoyment, free from the debts and contracts of any husbands, for and during their natural lives, with remainder in fee to their children, and in default of children surviving either of them, then to my children who shall then be living, their heirs and assigns forever, and should any of my sons die without issue, his or their share shall also revert to my children then living, their heirs and assigns forever.”

It was alleged that under this provision of the will plaintiffs took an absolute fee simple title to the lands devised to them respectively. It was alleged further that, pursuant to this provision, the seven children of the testator appointed three commissioners to divide the lands of the deceased in Arkansas in seven equal shares, and allotted one share to each of his seven children. In this deed the seven children joined and ratified the partition made by the commissioners, and conveyed to each other respectively all his interest in the shares which had been allotted to each respectively, subject to the provisions of the will. It was alleged that Clara M. Frank was 65 years of age, and had never married; that plaintiff Elizabeth Gf. Frank was 58 years old, and had never married; and the defendant Lenora F. Bowen was a widow with three living children. It was further alleged that on August 8, 1910, the seven children of the testator, J. F. Frank, deceased, executed and delivered another deed, which was recorded both in St. Francis and Lee counties, conveying and warranting to each of the seven ¡children, respectively, the land which had been set aside to each in the partition. In this deed each granted to the other his interest, present and prospective, in the lands’allotted to each, and warranted that none of the grantors, nor their heirs or assigns, would ever at any time assert any claim, under the term:s of the will or because of it, to the shares allotted to any of the grantees the title to which should be kept in them. It was also charged that, if the plaintiffs were wrong in their contention that the children each took a fee simple title in the lands devised to them nnder the will, they had acquired such title by the partition and deeds thereto.

The testimony is undisputed that plaintiffs had been in the constructive, if not actual, possession of the lands claimed by them since August 8, 1910, under the instrument under which they claim title, and paid the taxes due thereon for more than seven years before the commencement of the action, and that no one was in possession of the lands or any part thereof claiming adversely to either of them.

It is insisted, under the authority of Frank v. Frank, 88 Ark. 5, 113 S. W. 640, 19 L. R. A. (N. S.) 176, 129 Am. St. Rep. 73, that the court was without jurisdiction to entertain the suit, it being in effect an attempt to construe the will of John F. Fraúk, deceased, in which no attempt was made to create any trust relation with respect to any of the property devised, and legal assets only were disposed of. This suit, however, is one for quieting the title, which could be brought, under the circumstances, in equity, notwithstanding its determination required the construction of the will under which all the parties claimed as a common source of title. It is true that the statute provides (§§ 8363-4, C. & M. Digest) that the petition for quieting title to lands shall be filed in the office of the clerk of the chancery court, of the county in which such land is situated, and the petitioner may embrace in his petition as many tracts of land as he sees proper, so that all lie in the same county; but § 1164, C. & M. Digest, provides:

“Actions for the following causes must be brought the the county in which the subject of the action, or some part thereof, is situated: (1) For the recovery of real property, or of any estate or interest therein; (2) for the partition of real property; (3) for the sale of real property under a mortgage, lien or other incumbrance or charge; (4) for any injury to real property.”

If the suit be regarded as one for the recovery of an estate or interest in real property, this statute requires it to be brought in tbe county in which the subject of the action or some part thereof is situated. Although the lands, the subject of the action, the title to which is sought to be confirmed and quieted herein, are situated in two counties, the great portion thereof in the county where suit was brought, the cause of action is the same, and all the parties at interest claim title to each of the tracts of land under the one common source, the will, the conveyances of the lands affecting the title being made by the same parties, granting the same tracts of land in accordance with the partition and family settlement to effectuate the purpose of all, and, we think, under the circumstances, the court had jurisdiction of the subject of the action, although the lands were situated in two counties, and could grant the relief the parties showed themselves entitled to. Harris v. Smith, 133 Ark. 250, 202 S. W. 244; Fidelity Mortgage Co. v. Evans, 168 Ark. 459, 270 S. W. 624.

It is next contended that the chancellor erred in overruling the demurrer to the complaint challenging its sufficiency to state a cause of action and in not granting the prayer for confirmation of title. To determine this question requires a construction of the said fourth paragraph of the will of the testator, J. F. Frank, the common source of title of all claimants. The said testator was a resident of Memphis, Tennessee, where he died, and his said will was admitted to probate in Shelby County. It has twice been before the Supreme Court of that State for the determination of the rights of the devisees thereunder. Frank v. Frank, 120 Tenn. 569, 111 S. W. 1119; Frank v. Frank, 153 Tenn. 218, 280 S. W. 1013. In the last cited case the 'court said:

“In Frank v. Frank, 111 S. W. 1119, 120 Tenn. 569, the will of J. F. Frank was construed to mean that the four sons of J. F. Frank took an estate in fee, and the three daughters, Clara M. Frank, Elizabeth Gr. Frank and Mrs. Lenora F. Bowen, each took life estates in the property therein devised, with remainder (1) to any child or children that either might leave surviving her; (2) in default of child or children surviving any daughter, to the brothers and sisters living at her death. * * * The remaindermen are declared by .the will as construed in Frank v. Frank, 120 Tenn. 569, to be the issue of each devisee, and no issue, the survivor of the four brothers and three sisters.”

After this construction of the will, the four sons and three daughters of the testator, all the devisees as recited in the opinion, agreed in writing to partition the lands disposed of by the will of their father, and agreed that, in so far as within their power, each devisee should enjoy an estate in fee to his or her share. Under this agreement a tract of land was partitioned in seven parts, all the devisees joining in a deed conveying to each their interest, whether vested or contingent, in possession or in expectancy. This tract of land was sold, and upon a bill filed in the chancery court to confirm the sale of the three daughters, the purchase money or fund was divided upon a petition to have the proceeds of the sale, their shares, distributed to them. The question presented for determination was whether or not a contingent remainder under the laws of Tennessee could be alienated. The court held that, although there is a presumption of the possibility of issue so long as life continues, Clara M. Frank, 64 years old, and Elizabeth Gr. Frank, 58 years old, were both beyond the age when it is physiologically possible for either to bear children, but required the execution of a bond for repayment of the money in the event that either should have children who might take the remainder upon their death.

The decisions of the Supreme Court of Tennessee, where the testator resided at his death, construing his will disposing of lands there and in this State, are without authority, of course, for the disposition of the lands here, and are not to be regarded, unless in harmony with the rules of construction for wills disposing of property in this State as applied by onr own court. Onr court said, in Booe v. Vinson, 104 Ark. 445, 149 S. W. 526: “The purpose of construction of a will is to ascertain the intention of the testator from the language used, as it appears from consideration of the entire instrument, and, when such intention is ascertained, it must prevail, if not contrary to some rule of law, the court placing itself as near as may 'be in the position of the testator when making the will. Fitzhugh v. Hubbard, 41 Ark. 64; Gregory v. Welch, 90 Ark. 152, 118 S. W. 404; Cockrill v. Armstrong, 31 Ark. 580; Smith v. Bell, 6 Pet. (U. S.) 68.” See also Norris v. Johnson, 151 Ark. 189, 235 S. W. 804; Lochhart v. Lyons, 174 Ark. 703, 297 S. W. 1018.

The first clause of the fourth item provides ecpially for each of the seven children of the testator, and devises an estate in fee simple to each of them, sons and daughters alike. The last clause of this item, however, announces an unmistakable intention to limit the interest of his daughters to a life estate in their respective shares, as clearly as his intention in the opening clause had by its terms created an ownership in fee. There is no ambiguity or obscurity in either of these clauses, and no room for the operation of the rule that a dear grant of the fee by an earlier provision of the will will not 'be modified or qualified by a later obscure and ambiguous provision, as said by the Tennessee court. Since the last clause in a will governs in its construction in determining the intention of the testator, we are constrained to agree to the holding of the Tennessee court, that it was the intention of the testator to devise to his said three daughters a life estate only, with a remainder in fee to their children, and if no children, then to the children of the testator then living, their heirs and assigns (Gist v. Pettus, 115 Ark. 401, 171 S. W. 480; Little v. McGuire, 113 Ark. 500, 168 S. W. 1084; Jackson v. Lady, 140 Ark. 523, 216 S. W. 505), the devise in the first clause of the item being restricted accordingly. This holding is not in conflict with our decisions in Bernstein v. Bramble, 81 Ark. 480, 99 S. W. 682, 8 L. R. A. (N. S.) 1028; Davis v. Sparks, 135 Ark. 412, 205 S. W. 805; Archer v. Palmer, 112 Ark. 530, 167 S. W. 99; Combs v. Combs, 172 Ark. 1073, 291 S. W. 818, where the testator, after giving a fee simple to the devisee, attempted to make a deposition of the property remaining undisposed of at the devisee’s death, which it was held could not he done, such provision being void as repugnant to the prior devise in fee.

The Rule in Shelley’s Case has no application here, the language of the will not creating a limitation to the heirs of the devisees or grantees in general, but to their children, and, in default of children, then to some one else, it being the clear intention thereby expressed not to include grandchildren, nor to' use the word interchangeably for heirs, but, in its ordinary and natural meaning, to indicate children only. Gray v. McGuire, 140 Ark. 112, 215 S. W. 693; Finch v. Hunter, 148 Ark. 482, 230 S. W. 553.

It now becomes necessary to determine what interest was acquired by the seven children of the testator under deeds executed by all of them to each other conveying their interest in the respective shares in the estate devised. The seven children and devisees in the will agreed in writing to partition the lands disposed of by the will, in so far as it was in their power, allowing each unmarried daughter to enjoy an estate in fee in her share, as was devised to the sons by the will as construed by the Tennessee court. A partition was had of all the lands among the seven devisees, each receiving his or her share of the Arkansas lands, and deeds were executed by the children of the grantor by which all the devisees conveyed to each all their interest, whether vested or contingent, in possession or in expectancy, each child’s share. The seven children of the testator were sui juris, and, the partitions being fair, whatever interest in the shares of the others, brothers and sisters, was vested in each child that could be alienated, necessarily passed by the partition deeds and the other deeds made pursuant to the family settlements, wherein all the devisees attempted to vest in each brother and sister title in fee to his or her respective share of the estate. Martin v. Martin, 98 Ark. 104, 135 S. W. 348; Giers v. Hudson, 120 Ark. 243, 143 S. W. 916; Tandy v. Smith, 173 Ark. 828, 293 S. W. 735.

A distinction is made between vested and contingent remainders under our law, so far as the right of disposition thereof is concerned, and as defined in McCarroll v. Falls, 129 Ark. 250, 195 S. W. 387, and Hurst v. Hilderbrandi, 178 Ark. 337, 10 S. W. (2d) 491, there could be no vested remainder in the children of Clara M. and Elizabeth Gr. Frank, who have never married and are now beyond the age of child-bearing, according to physiological law. The remainder would have vested in such of the testator’s grandchildren as were in existence when the will took effect, as said by the Tennessee court, and contingent in the case of such daughter or daughters of the testator as at that time were without children. If the said devisees should marry and have children born, 'which should survive them, the presumption being that there may be issue so long as life continues, such children, upon the death of their respective parents, would become vested with a remainder interest in each respective share; but if these devisees die leaving no issue surviving them, as will doubtless be the case, then the remainder interest in their shares will vest, upon their death, in their brothers and sisters then surviving. This second class of remaindermen designated in the will are all ascertained, and those of them surviving the others would take the remainder, and, being designated and definitely ascertained, they could and did convey the interest they had or which might thereafter be cast upon them as survivors, their conveyances not affecting the right of any unascertained class nor the rights, contingent or otherwise, of any third persons.

It follows from what we have said that the chancellor could only confirm and quiet the title in each of thp owners thereof to these lands against all the other parties, devisees under the will and the children of Mrs. Bowen, but their conveyances could not affect the rights of said unascertained class, the possible issue or children of the said Clara and Elizabeth Frank. Otherwise the decree is correct, and will be affirmed in accordance with such modification. It is so ordered.


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    Holland Furnace Company v. Spinnenweber.
    Opinion delivered July 8, 1929.

      E. Newton Ellis, Geo. M. Booth and Walter L. Pope, for appellant.

      Schoonover & Schoonover, for appellee.
   Kirby, J.

This suit was brought in the justice court upon a claim for commission for making the sale of a furnace for appellant company, and, upon appeal to the circuit court, where the-complaint was amended, judgment was rendered for appellee for $52, the amount claimed, from which the appeal is prosecuted.

Appellant denied having ever made any agreement with appellee for payment of commissions upon sales made by him or any of its agents, and any indebtedness to appellee on that’ account.

There is a lot of testimony in- the record which it would serve no useful purpose to review, since the majority of the court has concluded that the testimony.was sufficient to support the judgment.

Each of the parties asked for a directed verdict and no other instructions, and the court directed a verdict in favor of the appellee. There being some substantial testimony to support it, as the majority holds, it will not be disturbed here. St. L. S. W. Ry. Co. v. Mulkey, 100 Ark. 71, 139 S. W. 643.

The judgment is accordingly affirmed.


author: McHaNey, J.

text:
    St. Louis-San Francisco Railway Company v. Smith.
    Opinion delivered July 8, 1929.

      King, Mahaffey & Wheeler, for appellant.

      John E. Harris and Siser & Gardner, for appellee.
   McHaNey, J.

This suit was instituted under the Federal Employers’ Liability Act (IT. S. 'Comp. St. 8657-8605) by the administratrix of the estate of Sterling Smith, deceased, to recover damages for the benefit of his widow and children and his estate, on account of his injuries and. death while in the employ of appellant railway company as brakeman, alleged to have been caused by its negligence. There was a verdict and judgment for appellee, and the case is here on appeal.

We find it necessary to discuss only one question, in view of the disposition we make of it, and that is the sufficiency of the evidence to support the verdict, which was challenged by a request for a directed verdict, and is the principal ground urged here for a reversal.

Since this suit was brought and prosecuted under the Federal Employers’ Liability Act, which does not define negligence, the question as to the sufficiency of the evidence to establish negligence must be determined by that act and the apx>licable principles of the common law as construed by the Federal courts. Mo. Pac. R. Co. v. Skipper, 174 Ark. 1083, 298 S. W. 849. As said by the Supreme Court of the United States in Atlantic Coast Line R. Co. v. Davis, 239 U. S. 34, 49 S. Ct. 210, 73 Law ed. 230: 4 4 It is unquestioned that the case is controlled by the Federal Employers’ Liability Act, under ¡which it was prosecuted. Hence if it appears from the record that, under the applicable principles of law as interpreted by the Federal courts, the evidence was not sufficient in kind or amount tp warrant a finding that the negligence of the railroad company was the cause of the death, the judgment must be reversed.” Citing Gulf M. & N. R. Co. v. Wells, 275 U. S. 455, 457, 72 L. ed. 370, 371, 48 Sup. Ct. Rep. 151, and cases cited.

We find the rule governing the State courts well stated in the case of Chicago, Milwaukee & St. Paul Ry. Co. v. Coogan, 271 U. S. 472, 46 Sup. Ct. Rep. 564, as follows:

“By the Federal Employers’ Liability Act Congress took possession of the field of employers’ liability to employees in interstate transportation by rail, and all State laws upon that subject were superseded. Second Employers’ Liability Cases (Mondon v. New York, N. H. & E. R. Co.), 223 U. S. 1, 55, 56 L. ed. 327, 348, 38 L. R. A. (N. S.) 44, 32 Sup. Ct. Rep. 167, 1 N. C. C. A. 875; Seaboard Air Line R. Co. v. Horton, 233 U. S. 492, 501, 58 L. ed. 1062, 1068, L. R. A. 1915C 1, 34 Sup. Ct. Rep. 635; Ann. Cas. 1915B, 475, 8 N. C. C. A. 834. The rights and obligations of the petitioner depend upon that act and applicable principles of common law as interpreted by the Federal courts. The employer is liable for injury or death resulting in whole or in part from the negligence specified in the act; and proof of such negligence is essential to recovery. The kind or amount of evidence required to establish it is not subject to the control of the several states. This court will examine the record, and, if it is found that, as a matter of law, the evidence is not sufficient to sustain a finding that the carrier’s negligence was a cause of the death, judgment against the carrier will be reversed. St. Louis I. M. & S. Ry. Co. v. McWhirter, 229 U. S. 266, 277, 57 L. ed. 1179, 1186, 33 Sup. Ct. Rep. 858; New Orleans & N. E. R. Co. v. Harris, 247 U. S. 367, 371, 62 L. ed. 1167, 1170, 38 Sup. Ct. Rep. 535; New Orleans & N. E. R. Co. v. Scarlet, 249 U. S. 528, 63 L. ed. 752, 39 Sup. Ct. Rep. 368.”

The act referred to provides that carriers by railroad shall be liable in damages to their employees for “injury or death resulting in whole or in part from the negligence of any of the officers, agents or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.”

Our statute, § 8562, C. & M. Digest, making railroads in this State responsible for all damages to persons and property done or caused by the running of trains in this State, has, so far as this case is concerned, been superseded, as also the rule of this court, announced in many decisions, that, where an injury is caused by the operation of a train, a prima facie case of negligence is established against the company.

Bearing in mind that the death of the deceased, Smith, must have resulted “in whole or in part from the negligence of” one or more of the employees of appellant working with him at the time, and that*“proof of such negligence is essential to recovery,” let us scrutinize the evidence in the light most favorable to appellee, which is a rule of the Federal courts (Coogan case, supra) as well as our own, to determine whether the testimony, together with all inferences the jury might reasonably draw therefrom, be sufficient, as a matter of law, to support the verdict and judgment. The facts, briefly stated, are as follows:

Appellee’s intestate was a young man, 36 years of age, a railroad brakeman for appellant, having three years’ experience, a wife and four minor children. On July 9, 1927, the date of his tragic death, he was head brakeman on a freight train running from Hugo, Oklahoma, to Ashdown, Arkansas. The crew consisted of an engineer, fireman, conductor and two other brakemen, Rhodes, swing brakeman, and Wallace, rear brakeman. The train arrived at Ashdown, in Arkansas, sometime between 2 and 3 a. m., the night being very dark, and was headed into the passing track in front of the station, the caboose having been cut off and left standing on the main track. The conductor, on arrival, had got off the train and gone to the interlocking plant, the tower, for instructions. The other operatives cut the three head oars off the train, brought them back on the main line, coupled them to the caboose, and continued backing the three cars and caboose, same being a coal-oar, a box-car, a tank car and the caboose, past the tower, where the conductor again got on the rear end of the caboose. The object of the movement then was to set the three cars between the engine and caboose on the Spencer Switch, which makes out from, the main line to the south thereof and west of the main line of the Kansas City Southern Bailway, the latter running from northwest to southeast, and the Frisco running east and west, the crossing being near the tower. A gravel public road running parallel with the Kansas City 'Southern crosses the Frisco, about 100 feet west of the crossing tracks, and there is a connecting track between the two railroads, running south from the Frisco and connecting on the south side of the Kansas City Southern. The switch stand for this connecting track is about 100 feet west of the west line of the highway and on the south side of appellant’s track. It is about 6 or 8 feet from the switch point of the connecting switch to the switch point of the Spencer Switch, the switch stand for the Spencer Switch being on the north side of the main line of appellant. These figures of distances are given by Conductor Caldwell, a witness for appellee. According to them, the stand for manipulating the Spencer Switch is located about 268 feet west of the crossing of the tracks of the two railroads, assuming that the highway does not exceed 60 feet in width. A statement of these facts is deemed important in view of what follows. After the conductor had boarded this cut of cars, he found the three brakemen on the rear end of the caboose, and advised them, the purpose of the movement, as above stated, and that it should be accomplished by uncoupling the caboose from the three cars, “kicking” it west of the Spencer Switch on the main line so as to put it in the clear, throw the Spencer Switch, and place the three cars thereon. All three brakemen understood the movement and how it was to be accomplished. Smith, the deceased, being the head or front brakeman, assumed, as was proper, the duty of uncoupling the caboose from the tank car which was next to it, crossing over to the north side of the tracks and throwing the switch after the caboose had passed, so as to shunt the other three cars on the Spencer Switch. Rhodes, the swing brakeman, assumed, as was proper, the duty of attending- the derail on the Spencer Switch, which had to be opened to permit the cars to pass up this track when the engine pushed them back. It was: the duty of Wallace, the rear brakeman, to stay on the caboose and set the brakes so as to stop it .in the clear on the main line after the “kick.” A signal was given the engineer to make the “kick,” which is accomplished by applying more steam so as to increase the speed of the train in order that the momentum thereby imparted to the caboose would carry it to the desired point after being uncoupled. To uncouple the caboose it was necessary for Smith to go to the front end, descend to the bottom step on the south side and raise or lift the lever, a safety device for pulling the coupling pin. It is certain that Smith did this, as the caboose was uncoupled, and rolled to the place desired of its own momentum. After doing this, as above stated, it was his duty to go to the switch stand on the north side of the track and throw the Spencer Switch. He was never seen alive by any person after starting for the front end of the caboose. Rhodes got off to attend the derail after the caboose passed, missed Smith, because he could not see the light of his lantern, signaled the engineer to stop, which he did, and, after investigation, found his dead and mangled body under the center of the middle car, both trucks of the tank car and the west trucks of the box-car having passed over his body. His head was north of the north main line track and his feet to the south between the tracks. His lantern was between the tracks, with the light extinguished. No witness was able to say just how the' accident happened.

This case was tried by appellee on the theory that it was 'Smith’s business to give the “kick” signal to the engineer; that it was in fact given by Rhodes without Smith’s knowledge; and that the engineer responded to such signal, made the “kick” unexpectedly to Smith, which threw Mm between the cars, and caused his death. This is the principal ground of negligence relied on.

Although the evidence is in dispute as to whose business it was to give such signal, we will assume that it was Smith’s. It is not disputed that there were three appliances at the front end of the caboose to hold to, a guard rail extending across the entire end of the platform and down both sides, about waist high, a ladder at hand running to the top of the caboose, and a grab-iron on the south side of this end. It will be assumed that deceased occupied the proper place, the lowest step on the south side, to raise the lever to pull the coupling pin. This would put him in a slightly stooping position to reach the lever, and some two or three feet south of the south rail. Appellee says that, when the engineer responded to the unexpected “kick” signal, the sudden lurch caused him to fall, that he caught on the guard rail at the rear end, and was swung around so as to fall across the north rail and be thus run over and killed. "While there is no direct testimony that this is what happened, we are asked to approve it as an inference reasonably to be deduced by the jury from the evidence. It is said that the “kick” given the caboose was sufficient to send it up the track, slightly up-grade, some 325 feet, which indicates the severity or force of the kick. But we cannot agree that this was sufficient to establish that the death of Smith resulted in whole or in part from the negligence of Ehodes in giving the signal, assuming it to be negligently or wrongfully done. He knew that a “kick” signal was to be given. He knew the object of the movement and how it was to be done. He actually pulled the pin before the kick was made, else there would have been a sudden jerk caused by an increased pressure of steam in the cylinders and suddenly cutting off all steam. If the pin had been in place, a jerk would have followed, and all the witnesses agree there was no jerk. The deceased was not a tall man, only 5 feet 8 inches in height. It is difficult to see just how he could be caused to fall by an increased speed of the caboose, which was never more than 10 or 12 miles per hour, and swing from the bottom step, some two or three feet south of the south track, so as to fall with his head and part of his chest across the north track. But there is no evidence that he fell off the caboose at all. We must indulge a presumption or surmise to reach this conclusion. Is it an inference reasonably to be deduced from the evidence? We think not. There was no sudden, unexpected, unusual .jerking of the caboose, but only a gradual increase in speed, not to exceed 10 or 12 miles per hour from the rate it was traveling. It appears to us that it is just as probable that he got off the caboose to cross over the north side and throw the switch; that, in doing so, he either stumbled and fell in the dark across the track, or was struck by the car following and was knocked doAvn on the track. One seems about as probable as the other. It may have happened either way, or some other and different way. As said by Judge Woolley, speaking for the Court of Appeals in Reading Co. v. Boyer, 6 Fed. 2d Series, 185:

“There was no evidence which tended to prove how the accident happened. As we have stated, it might have occurred in one of several ways. The only way conceivably involving negligence of the defendant was the lack of ballast between the main track and the track of the siding. We do not concede that lack of ballast in such a place constituted negligence, yet, assuming that it did, there is no evidence which remotely indicates that the decedent ‘lost his footing and was thrown under the train’ because of lack of ballast. As there were other ways in which Boyer might have met his death which did not involve negligence of the defendant, the case falls, we think, within the rule of Murray v. Pittsburgh, etc. R. Co., 263 Pa. 398, 403, 107 A. 21, 23, followed by this court in Philadelphia & Reading Ry. Co. v. Cannon, 296 F. 302, wherein the Supreme Court of Pennsylvania said: ‘It is not enough for plaintiff to show his injury might have been due to more than one possible cause, for only one of which defendant is responsible. He is obliged to go further and show the cause that fastens liability upon defendant was the proximate one, and the jury should not he permitted to 'base a verdict upon a mere conjecture that the injury was caused by one or the other.’ This is but another statement of the old rule that a party seeking to recover damages for injuries occasioned by negligence must establish negligence by affirmative testimony. Of course this does not mean that negligence must always be proved by the testimony of eye-witnesses. Philadelphia & Reading Ry. Co. v. Effinger (C. C. A.), 299 F. 950, but it does mean that it must be established, if not by the testimony of eye-witnesses, then by surrounding facts and circumstances which, though inanimate, speak the truth and affirmatively prove the fact. We cannot find in the record any testimony which tends to prove how Boyer met his death, and accordingly we have not found any evidence to support the verdict of the jury, that his death was occasioned by negligence of the defendant.”

This is also the rule in this court. Juries are not permitted to base verdicts on mere conjecture or speculation. There must be .substantial testimony of essential facts, or facts which would justify a reasonable inference of such essential facts, on which to base a verdict, before it will be permitted to stand. St. Louis, I. M. & S. Ry. Co. v. Smith, 117 Ark. 655, 174 S. W. 547; St. Louis, I. M. & S. Ry. Co. v. Belcher, 117 Ark. 638, 175 S. W. 418; Texas Co. v. Jones, 174 Ark. 905, 298 & W. 343.

The burden was upon appellee, not only to establish negligence, but that such negligence was the proximate cause of the injury. Assuming therefore that the act of br alternan Eh odes in giving the “kick” signal constituted negligence, there is a total lack of proof or inferences reasonably to be drawn therefrom that such negligence was the proximate cause of the injury, or that such injury resulted in whole or in part from such negligence. We have therefore reached the conclusion that the verdict and judgment are without substantial evidence to support them, and must he reversed, and the oanse remanded for a new trial.

HumphRbys and Kirby, JJ., dissent.


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    Smith v. Plant.
    Opinion delivered July 8, 1929.

      Cid L. Pearce, 'for appellant.

      Tom W. Campbell, for appellee.

      W. M. Thompson and Virgil Butler, amici curiae.

   McHaNey, J.

At the general election held on November 6, 1928, there was submitted to the electors of White County, Arkansas, initiative act No. 1 of White County, entitled, “An act to prohibit the running at large of horses, mules, cattle, swine, sheep, goats and geese, and all other live stock and fowls, except chickens and turkeys, and to provide a penalty therefor, and for other purposes. ’ ’ At said election there were 2,835 legal votes cast for the adoption of the act and 918 legal votes against its adoption. Thereafter, on November 16, the county court of White County entered an order declaring said act adopted.

This suit was instituted on June 1,1929, in the chancery court of White County, alleging the invalidity of the act on many grounds, and praying an injunction against the prosecuting attorney and his deputy from enforcing the provisions of the act. The court entered a decree finding the act null and void, and perpetually enjoined its enforcement.

Only two grounds of attack made upon the act are relied upon in this court: (1) That it is in conflict with the g-eneral laws of the State covering the same subject matter; and (2) because its title was misleading, and not properly put on the ballots.

The principal reliance of counsel for appellee to support the decree of the chancellor seems to he based upon the first ground, that the initiated act is in conflict with the general laws of the State covering the same subject-matter, -and is therefore void. This apparently is the ground the chancellor based his decree upon.' Authority for the procedure undertaken in the initiating of the above mentioned act in White County is found in Constitutional Amendment No. 9, the second Initiative and Referendum Amendment, and known as No. 13 of 1918, adopted by the people of the Slate at the general election on November 12, 1918. See Brickhouse v. Hill, 167 Ark. 513, 268 S. W. 865, and Combs v. Gray, 170 Ark. 956, 281 S. W. 918. One paragraph of this amendment reads as follows:

“Local for municipalities and counties. — The initiative and referendum powers of the people are hereby further reserved to the legal voters of each municipality and county as to all local, special and municipal legisla tion of every character in and for their respective municipalities and counties, but no local legislation shall be enacted contrary to the Constitution or any general law of the State, and any general law shall have the effect of repealing any local legislation which is in conflict therewith. ’ ’

It therefore appears from the above section of the amendment that the people of municipalities and counties are not free to initiate any and all local, municipal and special legislation they may desire. Limitation is placed thereon by the last clause in that paragraph, prohibiting the enactment of any legislation contrary to the Constitution, or contrary to any general law of the State, and a general law passed after the initiated act or in conflict therewith repeals the initiated act. If therefore the act in question is contrary to any general law of the State, it is void, and we must so declare it.

Provision is made in the general laws of this State, §§ 3'21 to 331, O. & M. Digest, and act 225, page 300, of 1921, amending § 324, and act 205, page 686, of the Acts of 1927, amending § 321, C. & M. Digest, for an optional stock law in any county of the State. To get a stock law in White County under this act, the procedure provided by the statutes above mentioned must be followed. Ten per cent, of the electors must first petition the county 'court for the privilege of voting on the question of restraining live stock from running* at large within any county, and the county court must make an order for such election, to be held at any general or.special election of the county or State officers. Upon a compliance with the above statutes, and a majority vote in favor thereof, the people of any county may have a stock law under the general laws of the State. But, as heretofore stated, that is an optional statute, optional with the people of each county, and if the people of White County had exercised this option, followed the procedure set out in the statute, and had in force and effect a stock law in White County under the general law, we would have no hesitancy in declaring the act in question void, as being repugnant to the provisions of the general laws of the State. But, since the electors of White County have not exercised the option of putting into effect a general law in White County prohibiting live stock from running at large, we are of the opinion that the provisions of the Initiative Act No. 1 of White County are not in conflict with any general law in force and effect in White County.

We have no cases in point from our own court, hut counsel for appellee has cited two California cases: Arfsten v. Superior Court in and for Mendocino County, 20 Cal. App. 269, 128 Pac. 949, and Ex parte Zany, 20 Cal. App. 260, 129 Pac. 295, to sustain his position, which we have carefully examined and considered. We do not find these cases to he in point, and therefore not persuasive in this case. As we have seen, the general law relating to the subject-matter has not been called into operation in White County, and is not effective therein. It appears to us therefore that the initiated act in question is not contrary to any general law covering the subject-matter, and is a valid exercise of the initiative powers reserved to the people of the counties by the people of White County.

It is next contended that the title of the act was misleading, and not properly put on the ballots. Another paragraph of the I. and R. amendment provides: “At the time of filing petitions the exact title to be used on the ballot shall by the petitioner be submitted with the petition * * *; on county and municipal measures such title shall be submitted to the county election board and shall by said board be placed upon the ballot in such county or municipal election.” It is said that this was not done. It appears from the record in this case that on the petitions circulated, among the people they contained the exact title of the act. This part of the petition reads as follows: “We, the undersigned, legal voters of White County, Arkansas, respectfully propose the following local law, to-wit: ‘Initiative Act No. 1 of White County. An act to prohibit the'running at large of horses, mules, cattle, swine, sheep, goats and geese, and all other live stock and fowls, except chickens and turkeys, and to provide a penalty therefor, and for other ourpo-ses.’ ”

It appears further from the record 'that in the “instructions to canvassers and warning to signers” there was printed the words: “Petition for an act to regulate the running at large of live stock in White County, and for other purposes.” This appears to be only what it purports to be, a series of eight instructions and warnings to canvassers and signers. The petition itself contained the proper title, and was submitted by the petitioners. We do not think any voter could have been misled by what he was signing.

In this connection it is further said that the exact title was not placed upon the ballots, and that, instead of printing on the ballots “Initiative .Act No. 1 of White County,” there was only printed “Initiated Act No. 1,” leaving off the words “of White County,’’.and that this avoids the act. The exact title of the act was printed on the ballot, and the leaving off of the ballot the words, “of White County,” did not constitute a violation of the amendment, as the words, “Initiative Act No. 1 of White County,” constituted only a designation of the number of the act to be initiated, and was no part of the title to the act.

The other contention made • with reference to the form of the act as published, and as it appeared on the ballot, cannot be sustained, as the exact title and purpose of the act was printed on the ballot, followed by the words “For Initiative Act No. 1,” and “Against Initiative Act No. 1.”

Having found all the grounds of attack made on the act as urged in this court to be unfounded, it necessarily follows that the court erred in enjoining its enforcement. The decree of the court is therefore reversed, and the cause dismissed.