author: Wood, J.

text:
    Morrow v. Mock.
    Opinion delivered January 23, 1922.
    Highways — injunction against opening road. — Under the rule that equity will not restrain the attempted enforcement of a void judgment where the remedy at law is complete, one who was a party to an order of the county court establishing a road across his land is not entitled to an injunction against its enforcement, since he had a remedy by appeal.
    Appeal from Randolph Chancery Court; Lyman F. Reeder, Chancellor;
    affirmed.

      Jerry Mulloy, for appellant.
    The county court was without jurisdiction. Under the act 422, Acts 1911, the voting of the- three mills road tax and the levying of the same by the quorum court are necessary conditions precedent to the exercise of such jurisdiction. 203 U. W. (Ark.) 260. .
    Act 321, Acts 1917, cannot be misconstrued into a legislative determination that the tax which it legalizes was previously authorized by an election, or that act 422, Acts 1911, was put into force in Randolph County, and the county court thereby clothed with additional power. 102 Ark. 205; 97 Id. 38; 20 Wend. 562; 104 Ark. 583; 89 Id. 513; 36 Cyc. 1112-1113; 11 Ark. 44-88; 46 Id. 153; 98 Id. 42; 35 Id. 56-60.
    If the act 321, supra, comprised within its terms an express determination that an election authorizing the tax had been held in November, 1916, such determination is palpably erroneous and void, as opposed to the plain record evidence to the contrary. 172 U. S. 269; 88 S. W. 881;'99 Id. 843; 103 Id. 179; 106 Id. 960; 108 Id. 840; 121 Id. 284; 134 Id. 971; 135 Id. 819; 158 Id. 150; 168 Id. 1102; 196 Id. 932; 198 Id. 264; 223 Id. 367.
    The county court’s want of jurisdiction is subject to attack, either directly or collaterally. 15 it. O. L. § 316; 23 Cyc. 1070-1073; 60 Ark. 369; 48 Id. 151; 5 Id. 424; 165 S. W. 255; 15 ft. C. L. § 312; 23 Cyc. 1065.

      W. L. Pope, for appellees.
    Injunction was not the proper remedy. Appellant had three adequate remedies at law, viz: appeal, certiorari and writ of prohibition from the circuit court. Equity will not intervene. 23 Ark. 641; 48 Id. 510; 58 Id. 314; 75 Id. 507; 82 Id. 330.
   Wood, J.

Act No. 422 of the Acts of 1911, sec. 5249 of Crawford & Moses’ Digest, provides in part as follows: “The county court shall have the power to open new roads and to make such changes in old roads as they may deem necessary and proper,” etc. Certain parties, acting under the authority of the above statute, petitioned the Randolph County Court for the establishment of a certain road fifty feet in width in said county, which proposed road extended across the lands of the appellant. The appellant was made a party to the proceedings and objected to the jurisdiction of the court and moved to dismiss the petition. His motion was overruled, the petition granted, and an order made establishing the proposed road and directing the overseer of the district in which the road was situated to open and construct the same. Immediately after making the order establishing the road, the court adjourned sine die, and the county judge and road overseer were threatening to carry the order into effect by entering upon the lands of the appellant for the purpose of opening and constructing the road.

On July 21, 1919, appellant instituted this action in the Randolph Chancery Court, setting up in his complaint in substance the above facts and alleging that the county court was without jurisdiction to make the order, for the reason that the statute, supra, under which the petition was filed and the order made, had no force or effect in Bandolph County for reasons set'up in the complaint. The appellant asked that the appellees, the county judge, road-overseer, and others, he enjoined from carrying into effect the order of the county court. The appellees entered a general demurrer to the complaint, which the court overruled; hut, on a trial of the issues raised by the complaint, answer and cross-complaint, the court entered a decree dismissing the complaint for want of equity, from which decree is this appeal.

The decree of the court is correct. The county court had jurisdiction of the subject-matter of opening up the road petitioned for. The appellant, on his own motion, was made a party to the petition. Carter v. Randolph County, 146 Ark. 221. Under the statute above mentioned, landowners may appeal from judgments of the county court within six months. The remedy, therefore, of the appellant against the order of the county court, of which he now complains and seeks to have set aside and declared of no effect, was by appeal; or, if the court was proceeding without jurisdiction, the appellant could have prohibited its action by prohibition. Certainly the appellant’s remedy, if he was entitled to any, was adequate and complete -at law. “Equity will not restrain the attempted enforcement of a void judgment where the remedy at law is complete.” Knight v. Cresswell, 82 Ark. 330 and cases there cited; Ex parte Christian, 23 Ark. 641; Fuller v. T. M. Dry Goods Co., 58 Ark. 314; Church v. Gallic, 75 Ark. 507.

The decree is correct. Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Walker v. State.
    Opinion relivered January 23, 1922.
    1. Intoxicating liquors — evidence.—Evidence held to sustain a conviction of setting up a distillery.

      2. Criminal law — instructions—objection.—Action of the court in giving or refusing instructions will not be considered on appeal, in absence of objection in lower court.
    3. Intoxicating liquors — evidence.—In a prosecution for setting up a distillery in which defendant denied having set up a still, it was not error to permit a witness familiar with stills to set up and exhibit the still which defendant was alleged to have set up.
    Appeal from Grant Circuit Court; W. H. Evans, Judge;
    affirmed.

      Isaac McClellan and D. E. Waddell, for appellant.
    The court erred in allowing witness to show to the jury how stills are erected and operated. Briscoe v. State, 149 Ark. 648.
    The evidence was not sufficient.
    J. S. TJtley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.
    The case of Briscoe v. State, 149 Ark. 648, does not apply.
    Objections made to instructions for the first time on appeal will not be considered.- 70 Ark. 348; 74 Ark. 557. Where no objection to an erroneous instruction is made, the court will not reverse. 124 Ark. 599.
    Exceptions must be made during the trial to the giving or refusing of instructions. 135 Ark. 499.
   Wood, J.

The appellant with J. J. Cotton and E. H. C. Crouse were jointly, indicted in the Grant Circuit Court for the crime of setting up a distillery. The indictment, omitting formal parts, charged that the -appellant and others “in the county and State aforésaid, on the second day of August, A. D. 1921, did Unlawfully and feloniously set up a distillery for the purpose of manufacturing distilled spirits for beverage purposes, against the peace and dignity of the State of Arkansas.” The appellant was tried separately. He was convicted and sentenced to one and one-half years in the State penitentiary.

The testimony on the part of the State tended to prove that E. C. Hall and W. A. Florey, deputy sheriffs of Grant County, on the first day of August, 1921, went to appellant’s place in Grant County to look for a still. They found two barrels of mash containing about one hundred and twenty gallons about two hundred yards from Cotton’s house in the woods. About four or five o’clock in the afternoon they saw John Cotton and Houston Crouse come to the mash and examine it. Cotton stirred it with a stick and said it was about ready to manufacture. The next morning Hall and one Smithson, another deputy sheriff, went back to watch the mash. When they came near, they saw John Cotton, Houston Crouse .and the appellant in the act of setting up a still, consisting of a sixty-gallon gasoline barrel for the tank of the still and á one and one-half inch galvanized pipe about ten or twelve feet long for the worm. There was also a trough there to place the worm in. The appellant had hold of the pipe when they first saw him placing it to the tank. The appellant and those with him.started to run when they discovered the officers. The others got away, but the appellant was arrested in some bushes within about twenty steps of the still. He had a gun, and was ordered to throw up his hands. After some hesitation he did so. His gun was loaded with BB shot.

The still found by the officers on the occasion mentioned, and which was identified by all of them, was brought into court. One of the witnesses testified that he was familiar with the way in which stills were connected and set up, and, over the objection of the appellant, this witness was permitted to make the connections of the various parts and set up and exhibit the still to the jury.

The testimony of appellant and his witnesses tended to show that on the day .appellant was arrested he was working on a shed near Cotton’s house fixing to put .up a sorghum mill. Cotton and Crouse were there with appellant until about 10:30 a. m., when they went to the house. Before going to the house, they-were talking about the boys who had been getting watermelons out of appellant’s watermelon patch, and appellant asked Cotton why he didn’t go down there and take his gun with him and have some fun out of the boys. Cotton replied that he couldn’t use his gun with one hand. Appellant then told Cotton if he would give appellant the gun he would go and have some fun with the boys. Cotton sent the gun to appellant, which was loaded with one load of shot. About 11:00 or 11:30 a. m., appellant heard shots near the watermelon patch and went down back of the patch and was sitting in a bunch of bushes waiting for the boys, when he was ordered to put up his hands. Appellant set his gun down and put up his hands. He was then arrested and taken to jail. He did not know there was any still there or anywhere near there — couldn’t see the still from the place where he was arrested. He didn’t see the still until several days thereafter. He never drank whiskey and was never drunk in his life. He had never manufactured any whiskey, nor was he ever interested in the manufacture of whiskey, and he was not helping to erect the still for that .purpose. The evidence was sufficient to sustain the verdict.

The appellant here for the first time objects to the instructions which the court gave' and to the ruling of the court in refusing his prayers for instructions and in modifying and giving these prayers as modified. In the recent case of Cegars v. State, 150 Ark. 648, we held that where no objections are made at the trial to the instructions of the court we cannot consider alleged errors predicated upon the ruling of the court in giving instructions. See also Morris v. State, 142 Ark. 297; Hardin v. State, 94 Ark. 65.

The court did not err in permitting the witness to set up and exhibit the alleged still before the jury. The issue before the jury was whether or not the appellant’ had set up a still. Witnesses for the State testified that they found appellant and others in the act of setting up a still; that they captured appellant and took possession of the alleged still, which they identified as the one found by them, and exhibited the same in the presence of the jury, attaching its several parts. The witness who set up and exhibited the still in the presence of the jury testified that he was familiar with stills and the manner of their operation, etc. This was certainly competent testimony on the issue involved.

The record presents no error in the rulings of the trial court. The judgment is therefore affirmed.


author: Woon, J.

text:
    Johnston v. Conway.
    Opinion delivered January 23, 1922.
    1. Parties — intervention.—In a suit in equity to require the board of commissioners of an improvement district to levy and collect an assessment to pay a judgment against the improvement district, taxpayers interested in the litigation were properly permitted to intervene and be treated as parties defendant.
    2. Appeal and error — objection not raised below. — Where taxpayers were permitted to intervene and become defendants in a suit against an improvement district, objection to the ruling making them parties cannot be made for the first time on appeal.
    3. Municipal corporations — improvement^ districts — limit of assessments.- — -Since the only justification for the imposition of local assessments rests upon the enjoyment of special benefits to the property thus taxed, the amount of the tax must not exceed the special benefit derived.
    I. . Municipal corporations — improvement districts — mode of making assessments. — The assessments of benefits in a local improvement district must be made by the board of assessors of the district, and not by the chancery court, and a revision or readjustment of the assessment of benefits must be made in the manner prescribed by the statute (Crawford & Moses’ Dig. § 5657).
    5. Injunction — remedy to compel collection of assessments.— The remedy of a contractor holding a judgment against an improvement district is complete and adequate at law through annual adjustment of assessments, and not by recourse to equity to compel levy and collection of assessments.

      Appeal from Miller Chancery Court; James D. Shaver, Chancellor;
    reversed.

      Frank S. Quinn, for appellants.
    1. The estimated cost of the improvement is a limit of liability upon the property in the district. C. & M. Digest, § § 5656, 5657; 134 Ark. 315, 319; 97 Id. 334, 342; 86 Id. 1; 115 Id. 96.
    2. The assessment of benefits is a limitation upon the liability of the property in the district. C. & M. Digest, § § 5657, 5658; 86 Ark. 1, 7, 8, 9, 14, 21, 22; 97 Id. 334, 342; 127 Id. 341.

      Arnold d> Arnold, for appellee.
    There is nothing to show that the interveners are aggrieved. The allegation that they were taxpayers was in issue and was supported by no evidence.
    Appellants intervened and appealed individually. They had no authority of law to represent themselves and all other owners in the district. They are not entitled to maintain an appeal. 145 Ark. 529.
    The decree should be affirmed. When the court made the assessment, no objection that the assessment should have been made by the district assessors. The original assessment, with the additional assessment by the court, does not exceed the twenty per centum limitation, and it is not denied that the real property in the district was benefited to the extent thereof. 55 Ark. 148; 95 Id. 575.

      Frank S. Quinn, for appellant, in reply.
    Appellee filed no response to appellant’s application for leave to file an answer and to be made parties, and its allegations will be treated as true. He is in no position to raise the question here for the first time as to their right to defend the suit or to prosecute this appeal. 64 Ark. 305; 71 Id. 242; Id. 552; 75 Id. 312; 74 Id. 557; Id. 88; 70 Id. 197.
   Woon, J.

The Board of Improvement District Nr 16 of the city of Texarkana filed its assessment of the cost of the work in the district showing the cost to be $15,000 and $4,500 for interest on bonds, making a total cost of $19,500. An assessment of benefits was made by the board of assessors of. the district, filed with the city council and duly levied against the property in the district. The benefits thus assesséd were $18,945. The improvement district expected the city to contribute $1,000 to pay the difference between the benefits assessed and the cost of the work. Everv piece of property in the district had been assessed. The assessment roll showed a property value in the district of $106,380. Two of the board of assessors who made the assessment of benefits testified. Their testimony was to the effect that the assessment they made in 1912 provided for the entire cost of the improvement; that the assessment was made having in view the benefit that was to accrue to the property by reason of the work contemplated; that the assessment was as much or more than the benefits received; that they had not changed their opinion about the amount of the benefits to accrue to the property, and if they had to assess the benefits again they could not do otherwise than they had already done; that the benefit was fair and equitable.

C. M. Conway was the contractor who constructed the improvement of the district. Before the work was completed it was ascertained that the district did not have enough money to complete the improvements contemplated. After the work was well under way the board agreed with the contractor that he might go ahead and finish the work, and that he should take the note of the district for the amount that was due him over and above the amount derived from the assessment of benefits. Accordingly, the board executed its note to Con-' way in the sum of $3,221.91, on which Conway after-wards sued the district and recovered judgment in the sum of $3,222.91, with interest at the rate of 7% perannum from August 14, 1919, until paid, together with all .costs.

This action was begun in the Miller Circuit Court against D. B. Johnson, A. B. Little and F. E. Brown, as the Board of Improvement of District No. 16 of the city of Texarkana, and also against the board of assessors for the district and the collector and treasurer to require the levy and collection of an assessment against the property in the district to pay the judgment, interest and costs. The action was an application for a writ of mandamus. The prayer of the complaint is that the collector be ordered to return a list of delinquents, that the board of improvement be ordered to foreclose against such delinquents, and that the board be ordered and directed to require the assessors to readjust the benefits accruing to the lands by reason of additional improvements, and that the board be directed to require said assessors to assess additional benefits, sufficient to pay the plaintiff’s claim, not, however, in excess of 20% ; that the treasurer of the district be ordered to turn over all such funds as he has in his hands in payment of the judgment, etc.

The board of improvement answered and admitted the judgment set out in the complaint, but denied that the members of the board had failed to discharge any legal obligation in relation to the improvement district, and denied that the plaintiff was entitled to the relief which he asked. They set up that the district issued bonds with which to construct the improvement contemplated by the district; that the work was let to the plaintiff, and that the proceeds -of the sale of the bonds were paid to him on his contract for the- construction of the improvement; that the revenues derived from the assess^ ment of benefits were pledged to the bondholders, and that when the proceeds of the bonds were absorbed in the work by Conway he agreed to finish the work and accepted the note of the district for whatever might be due him, subject to the bond issue, and to take his chances on being able to collect the same. They allege that when the work was completed the board executed a promissory note in accordance with that understanding which was the basis of Conway’s judgment; that all the hands had not been paid; that a bond for $500 and interest was still due and that the district had not sufficient funds to take up that bond and interest. The cause on motion of Conway was transferred to the chancery court.

W. J. Paulk, Cleo Lynn, S. M. McAdoo, J. H. McLain and J. T. Davis filed an application to be made defendants in the suit, alleging that they were tax-payers in the district and were entitled to he heard in the proceeding, and further alleging that it was their opinion that it was not the purpose of the board of improvement to defend the suit, and that it was necessary that the petitioners appear and defend. They tendered an answer with their application to be made party defendants. In their answer these parties set up that they were tax-payers of the district and had paid all assessments of benefits levied against their property; that the district was organized in 1912, and that an estimate of the cost of improvement and the levying of assessment of benefits was made in 1912; that the funds derived from such assessment had been exhausted, and no further assessment existed against the property in the district. They set up that no authority existed for making any new or additional assessment; that the original cost of the work had been paid, and that any other costs than that shown by the report of the board of improvement to the city council upon which the assessment was based would not be a legal charge against the property in the district. They denied that the benefits equaled or exceeded the cost of the construction, and alleged, on the contrary, that the cost of the improvement exceeded the assessment of benefits, and that the excess of costs over such assessment is not collectable out of the property in the district. They denied all the other allegations of the complaint. They admitted that there was a small balance in the hands of the treasurer of the district, but alleged that there were outstanding bonds of the district more than enough to take up this balance.

Upon the issues and facts as above stated, the court entered a decree finding that the sum of $3,222.91 was due Conway with interest at the rate of 7 per cent, per annum from August 14, 1919, until paid; that the sum of $1,776 of said judgment is collectible from the tracts and parcels of land located within the confines of the district, ■and is a lien against the lands in the proportion named in the decree, and directed the collection of the amount in the proportions set forth in the decree against the several tracts of land in the district. The decree further appointed a collector to collect the assessment, and directed that he should file a report on the first of December, 1921, showing what collections he had made and what property was delinquent, so that the court might proceed to foreclose the lien for the amounts which remained unpaid. Both the plaintiff and the interveners excepted, prayed and were granted an appeal.

1. Upon the petition of the appellants to be made parties to the proceedings, setting up that they were taxpayers and interested in the result of the litigation, which petition was duly verified, the court ruled correctly in permitting the appellants to intervene and to be treated as parties defendant. Besides, there was no response to the application of the appellants to be made parties. The appellee, not having objected in the court below to the ruling of the court making the appellants parties defendant, cannot raise such issue here for the first time. Hadley v. Bryan., 70 Ark. 197; Williamson v. Bennett, 75 Ark. 312.

2. The trial court had no authority to levy an assessment upon the property in the district to pay the sum adjudged to be due the appellee by the district. It has often been held by this court that property owners in an improvement district cannot be required to pay an assessment against their property for the costs of an improvement which exceeds the benefit accruing to the property by reason of such, improvement. In one of the latest cases upon the subject we said: “Since the only justification for the imposition of local assessments rests upon the enjoyment of special benefits to the property thus taxed, the amount of the tax must not exceed the special benefit derived.” Mullins v. Little Rock, 131 Ark. 59-64-65. See, also, McDonnell v. Imp. Dist., 97 Ark. 334-342; Kirst v. Imp. Dist., 86 Ark. 1.

3. The assessment of benefits in a local improvement district must be made by the board of assessors of the district, and not by the chancery court, and a revision or readjustment of the assessment of benefits must also be made in the manner prescribed by the statute. (Sec. 5657, C. & M. Digest.) See Board of Imp. v. Special School District of Texarkana, 127 Ark. 341. The statute provides for an annual readjustment of the assessment according to additional improvements placed upon the property, etc. (Sec. 5658, C. & M.) There is no authority anywhere in the statute for any court to make an original assessment of benefits to property in local improvement districts. To justify any assessment, it must be made in the manner contemplated by the law.under which the improvement district is organized. It is conceded by learned counsel for the appellee that there was no effort made for .a readjustment of the assessment of benefits as contemplated by the statute. The appellants therefore had the right to attack the assessment made by the chancery court. Conceding here, without deciding, that the appellee’s judgment is a valid claim against the district and .a lien-upon the property in the district, it cannot be satisfied in the manner directed by the decree of the chancery court. It is manifest that, if the appellee has any remedy at all, it is not by action through the channels of the chancery court. If he is entitled to any relief, he' has a complete and adequate remedy at law. The decree is therefore reversed, and the cause will be remanded, but with leave, if the parties are so advised, to transfer to the law court.


author: Hart, J.

text:
    Morgan v. Russell.
    Opinion delivered January 23, 1922.
    Landlord and tenant — priority op landlord’s lien. — Where a tenant sublet a portion of the leased premises, the landlord, having liens for rent and for supplies, may apply the tenant’s crop to payment of the supplies, and apply the proportionate part of the subtenant’s crop to the lien for rent, as against one having a mortgage on the subtenant’s crop; the landlord’s liens being superior to that of the mortgagee.
    Appeal from Columbia Circuit Court; G. W. Smith, Judge;
    reversed.
    STATEMENT of eacts.
    Appellees brought this suit agaiust appellants to recover judgment for the sum of $218.16, with the accrued, interest alleged to be due them for the appropriation by appellants to their own use of three bales of cotton upon which appellees had a mortgage.
    The material facts necessary to a determination of the issues raised by the appeal are substantially as follows:
    Gunter Brothers rented a farm, comprising 150 acres of land in cultivation, to Hadley McDowell for the year 1919, for tlie sum of $1,000; $150 of this amount was to be paid in improvements, and the remaining $850 was evidenced by a rent note due December 18, 1919. Gunter Brothers also furnished supplies to Hadley McDowell, so that at the end of the year he owed them for supplies and rent the sum of $2,475.06. McDowell raised a crop principally of cotton, and began to pay the proceeds of the cotton as gathered by him to Gunter Brothers during the latter part of the year 1919. He paid them the sum of $1,959.07. Gunter Brothers applied the proceeds of the sale of the cotton raised on their place by their tenant, first, to the payment of his supply account, and the balance towards the payment of his rent. Hadley McDowell sub-rented twenty-five acres of the land to John Morgan for a third of the corn and a fourth of the cotton. John Morgan lived on appellee’s farm, which was 'also in Columbia County, Arkansas. He gave appellees a mortgage on all the cotton and corn which he should make or cause to be made during the year 1919 in Columbia County, Arkansas, to secure them for supplies furnished him during that year. At the end of the year Morgan owed appellees a balance of $750 on his mortgage indebtedness. Morgan raised something over two bales of cotton on the land rented by him from McDowell. He finished out the third bale with 720 pounds of seed cotton that he raised on the farm of appellees.
    Gunter Brothers took the three bales of cotton which Morgan raised, as above stated, after it was ginned. Morgan also got twenty sacks of fertilizer from Hadley McDowell which was furnished to him by Gunter Brothers. The fertilizer was used by him on the crop grown on the place of Gunter Brothers.
    The jury returned a verdict in favor of appellees in the sum of $218.16, and from the judgment rendered appellants have duly prosecuted this appeal.

      McKay $ Smith, for appellant.
    The defendant had a lien on Morgan’s crop, which was prior and paramount to the lien of plaintiffs in an amount equal to the proportion of the entire rent that the land worked by him bears to the entire amount cultivated. C. & M. Digest, § 689iS; 103 Ark. 91; 109 Ark. 552.

      Henry Stevens, for appellee.
    A debtor holding a superior lien cannot appropriate payments so as to prejudice the creditor holding a junior lien. 39 Ark. 248.
    The defendant could not appropriate the cotton delivered to the payment of the note. 47 Ark. 11.
   Hart, J.

(after stating the facts). It was the theory of the trial court that Gunter Brothers only had a lien upon the crop raised on their place by McDowell for the payment of rent which was prior to the mortgage lien of appellees. The jury was virtually instructed that Gunter Brothers should apply all the cotton raised on their place by McDowell, their principal tenant, to the payment of the rent before they could appropriate any part thereof towards the payment of his supply account.

McDowell had sub-rented twenty-five acres of the land which he had rented from Gunter Brothers to John Morgan for a third of the corn and a fourth of the cotton. John Morgan raised something over two bales of cotton on the land sub-rented by him, which Gunter Brothers took charge of after it was ginned and applied it towards the payment of the rent due them by McDowell. This they had a right to do to the extent of the proportion of the rent for the lands cultivated by him to the whole rent. Section 6889 of Crawford & Moses’ Digest gives the landlord a lien upon the crop grown upon the demised premises in any year for the rent which shall accrue for such year. Sec. 6890 gives the landlord a lien for supplies furnished his tenant. These liens are statutory and of equal dignity. Sec. 6892 provides that any person sub-renting lands shall be only held responsible for the rent of such as are cultivated, or occupied by him. Sec. 6894 provides that it shall not be lawful for any one who has leased land from one person and sub-let any portion thereof to another to take or collect rent from any such sub-tenant before final settlement with the landlord without first having obtained a written direction from the landlord. Sec. 6895 provides that if the principal tenant shall fail to pay to the landlord his rent due, the amount paid by such • sub-tenant upon the written direction of the landlord shall be deducted from the pro rata of rent from which the land cultivated by such subtenant would otherwise be liable to such landlord under existing laws.

These sections show that the landlord has a lien on the crop raised by the sub-tenant for the rent of the land for his proportionate part of the rent. The theory adopted by the court below, as shown by the instructions given to' the' jury, absolved tbe sub-tenant from any claim by tbe landlord for his proportionate part of the rent if the principal tenant had paid the landlord an amount equal to the rent due by him, regardless of the fact of whether he had paid his supply account or not. This construction would virtually abrogate the sections of the statute above referred to with regard to the liability of sub-renters for the payment of their proportionate part of the rent to the landlord.

Gunter Brothers had a lien on all the crops raised by their principal tenant, Hadley McDowell, for the rent and supplies due them by him. They had no lien on the crop raised by Morgan, the sub-tenant of McDowell, for the supplies furnished by them to McDowell, but they did have a lien on the crop of Morgan for his proportionate part of the rent. In other words, Gunter Brothers had the right to take all the crop raised by McDowell and apply it first to the payment of their account for supplies, if they saw fit to do so. The reason is that the statute gave them a lien for supplies as well as rent, and they might apply the proceeds of the crop raised by McDowell towards the payment of either.

McDowell sub-rented a part of the land to Morgan, and Gunter Brothers had a lien on the crop raised on this land by Morgan for the proportionate part of the rent and .whatever supplies that they furnished to Morgan. But, as we have already seen, Gunter Brothers had no lien on the crop raised by Morgan for supplies furnished to McDowell. Gunter Brothers rented 150 acres of land to McDowell for a stipulated rental in money, and McDowell sub-rented 25 acres of this to Morgan for a part of the crop. The landlord had a lien upon the crop grown on all this land for the rent agreed to be paid him by his principal tenant, and this without regard’to any contract or agreement between the tenánt and his subtenant for rent. The statute limits the liability of the sub-tenant to the landlord for rent to -such lands as are occupied by him, and this liability the sub-tenant can discharge only by the payment of the pro rata amount of the rent for the land occupied by him according to the contract between the landlord and the principal tenant, and not according to the amount of rent agreed upon between the principal tenant and the sub-tenant. Jacobson v. Atkins, 103 Ark. 91, and Storthz v. Smith, 109 Ark. 552.

Any other construction would have the effect to change the contract between the landlord and the principal tenant without the consent or agreement of the landlord, and this we do not think was the intention of the Legislature in passing the act with regard to the liability of sub-renters to the landlord for their proportionate part of the rent.

It follows that the court erred in instructing the jury as indicated in the opinion, and for this error the judgment must be reversed and the cause remanded for a new trial.


text:
    Cunningham v. Dellmon.
    Opinion delivered January 23, 1922.
    1. Dower — validity of allotment. — Where the report of commissioners appointed to allot dower and the order of the court confirming the same described the lands as “pt. NWÜ of NWÜ sec. 15, Tp. 6S, R. 9 West, 13 acres; 48 feet by 123, blk 33, D. H. Addition to P. B. in Jefferson Co.”, the descriptions are too indefinite to constitute a valid and binding allotment of dower.
    2. Dower — adversary proceeding. — An ex parte proceeding for allotment of dower is invalid; the statute (Crawford & Moses’ Dig. § 3547) contemplating that all persons interested in the property shall be summoned
    3. Pleading — exhibits.—Under the practice in equity exhibits to the complaint will control its averments and the natm ' of the cause of action, and may be looked to for the purpose of testing the sufficiency of the allegations of the complaint.
    4. Limitation of actions — demurrer.—Defense of the statute of limitations may be raised by demurrer where the complaint affirmatively shows that the statutory period has elapsed since the accrual of the cause of action.

      5. Homestead — abandonment by widow — limitation as to heirs. —While the statute of limitations does not run against a cause of action in favor of the heirs for the recovery of the homestead during the occupancy by the widow, an attempt by her to alienate the homestead operates as an abandonment, in which event the right of action of the heirs becomes complete, and the statute of limitations begins to run against them.
    6. Pleading — construction.—An obscure pleading will be treated in the light in which the parties themselves treat it.
    7. Limitation of actions — recovery of land by minor. — Where lands of a minor heir were sold by his guardian under an order of the probate court, and he waited until more' than three years after reaching majority before suing to recover them, he is barred by the statute of limitation.
    8. Descent and distribution — ancestral estate. — An estate which descended from the father, upon the death of the heir without issue, goes to the .heirs of the father.
    Appeal from Jefferson Chancery Court; John M. Elliott, Chancellor;
    affirmed.
    STATEMENT OE EACTS.
    Appellant brought this suit in equity against the appellees to set aside a judgment of the probate court ordering the lands described in the complaint to be sold; to cancel the deed executed pursuant to said probate sale; and to divest the title to said lands out of appellees and to vest the same in appellant.
    According to the allegations of the complaint, Jas. M. Cunningham died on the 24th day of December, 1889, in Jefferson County, Arkansas, leaving surviving him Ida G. Cunningham, his -widow, and two minor children as his sole heirs at law. Charles L. Cunningham, the appellant, was one of the children of Jas. M. Cunningham, deceased, and was little more than a month old when his father died. He was born on the 20th day of November, 1889, and became twenty-one years old on the 20th day of November, 1910'. The other son was Jas. M. Cunningham, Jr., who was a little more than a year old when his father died. Jas. M. Cunningham, Jr., was born on the 1st day of September, 1888, and died on the 9th day of August, 1895. Appellant’s mother died on the 15th day of May, 1915, and this suit was filed on the 19th day of November, 1917. Sometime after the death of her husband, Ida G. Cunningham married a man named Stanley. On the 24th day of February, 1892, after her marriage, she filed a petition in the probate court to have dower allotted to her in the estate of her deceased husband. This petition is made an exhibit to the compliant in this case, and is as follows:
    “To the Honorable County and Probate Judge of Jefferson County, Arkansas:
    “Your petitioner would respectfully state that she was the late widow and relict of J. M. Cunningham, deceased, and that said deceased died seized and in possession of the following lands lying and being in Jefferson and Lincoln Counties.
    “Among other lands the following: NW^i of the NE% of sec. 20, township 9' south, range 7 west, in Lincoln County, Arkansas. Pt. NW14 of NW14 of sec. 15, Twp. 6 S., B. 7 "West, 13 acres. 48 feet x 123, Blk. 33, D. H. Addition to P. B. in Jefferson County.
    “Now, therefore, she prays that commissioners be appointed to allot her dower in and to said aforesaid lands and lots .and for an order of your court setting aside as her absolute property said dower as allotted, asking that the last two descriptions of this list be set aside in addition to any other they may see proper.
    “Ida G. Cunningham,
    “Now Ida G. Stanley.”
    The order of the probate court allowing her dower in said estate is also made an exhibit to the complaint and is as follows :
    “In the Jefferson Probate Court, April Term, 1892, April 13th. Est. James M. Cunningham, Deceased.
    “C. H. Lyman and Ida G. Cunningham. Admrs.

      “PETITION POR DOWER LANDS.
    “Now on this day is presented to the court the petition of Ida G. Cunningham, widow of James M. Cunningham, deceased, asking this court to set aside from the lands listed in said petition a dower for said widow. The court after careful consideration doth order and adjudge that Jas. Gould, W. J. Galbraith and R. H. M. Mills be and are hereby appointed to recommend and set aside said dower for said widow and to report their actions to this court.”
    On the 13th day of April, 1892, the probate court appointed commissioners to allot her dower in said estate, and on the 16th day of April, 1892, the probate court approved the report of the commissioners and confirmed their allotment of dower to the widow. The report of the commissioners and order of the court confirming the report contained the same description of the land as appears in the petition for the allotment of dower, and in the order of the probate court granting the same. At the time of his death, Jas. M. Cunningham resided on the land owned by him in block 33, D. Harding’s Addition to Pine Bluff, Ark., and the same constituted his homestead.
    On the 13th day of July, 1892, C. H. Lyman presented his petition, and was granted letters of guardianship on the estate of Charles L. Cunningham and Jas. M. Cunningham, Jr., minors. On the 18th day of July, 1892, said guardian filed a petition in the probate court for the sale of the reversionary interest of said minors in the property described in the complaint herein. On the 29th day of July, 1892, the petition was granted, and the guardian was ordered to sell the land on the 31st day of August, 1892. The sale was made on the 31st day of August, 1892, pursuant to the order, and the land was purchased by the mother of said minors and widow of said Jas. M. Cunningham.
    The complaint is too long to set out in full. We copy from the original complaint the following:

      “Plaintiff further alleges that the sale of the part of block 33 in Harding’s Addition to the city of Pine Bluff, and lands described in .complaint, was illegal and void, for the reason that the probate court did not have authority under sections 3793 and 3794 to authorize the sale of said lands. That the petition of the guardian does not affirmatively allege that there were no debts against the estate of the minor heirs. That the guardian under our statutes had no authority to sell the minors ’ interest in said lands herein described for the support and maintenance of said minors. That the said defendant is in the unlawful possession of same, claiming to be the owner thereof by mesne conveyances from those holding under and by virtue of said guardian’s sale. Plaintiff further states that after a short space of time, and while he was a very small child, his mother moved off of said lands and to another county in this State, and that he was not aware of the fact that his father ever owned said lands until a short time before the filing of this his complaint, and that he was then informed of his rights by his grandmother after the death of his mother in 1915. Plaintiff further says that the above described 13 acres mentioned in his complaint has been laid off into lots and blocks and known as. Burke’s Addition to the city of Pine Bluff, and is in the possession and claimed by various parties to this plaintiff not known.”
    We also copy from the amended complaint the following* :
    “That the said Ida Gr. Cunningham is said to have sold said lands, and that the tract of thirteen acres has been laid off and platted into lots and blocks and is now known as Burke’s Addition to the said city of Pine Bluff, and is now claimed by various parties, and the plaintiff is informed and verily believes that the defendants and each of them claim to own said land or some part thereof or to have some interest therein.”
    Again we copy from the amended complaint the following :

      “That the said Ida G. Cunningham was the mother of the plaintiff and his brother, and stood in the relation to them of natural guardian. That she, jointly with her said minor children, occupied the homestead, and that, subject to the homestead rights of said minors, she had assumed possession of same as a part of her dower, that the whole of said lands had been assigned to her as dower, which assignment had been ratified and confirmed by the plaintiff and his brother through the appointed guardian, Charles H. Lyman, and that her rights and title to same have been also ratified and confirmed and recognized by the court in granting the guardian’s petition for a sale of the reversionary interest of said minors and in reserving from said sale her life estate in said lands and in ordering the sale to be made subject to the life estate of the said Ida G. Cunningham. That the guardian of the plaintiffs .attempted to sell the reversionary estate of the minors alone, and the fiduciary relation which the said Ida G. Cunningham sustained to said minors precluded her from dealing with said lands in any manner that- would not inure to their benefit as well as to hers. That, if the said Ida G. Cunningham took anything by her purchase of the reversionary interest in said lands from her father as guardian, that she took it as trustee for the plaintiff and his brother. That when the said Ida G. Cunningham sold said lands she abandoned her homestead rights therein, but she had before ignored and abandoned all her homestead rights in said lands by having elected to take the same as a part of her dower, which abandonment gave to the plaintiff and his said brother a right to all the rents and profits from said homestead during the minority of said minors, and that after the death of the plaintiff’s brother the plaintiff became entitled to all the rents and profits arising from said homestead, and that, if the true character of said property as a homestead had been made known to the court in the guardian’s application for an order for the sale, the court could have seen that the rents and profits from, the homestead were sufficient to support said minors, and that there was no necessity for the sale, and might not have permitted a reversionary interest in the property to be sold.”
    The court sustained a demurrer to the complaint, and, appellant refusing to plead further, his complaint was dismissed for want of equity.
    Appellant has duly appealed to this court.

      Harvey B. Lucas and James E. Hogue, for appellant.
    1. As to the homestead, there can be no defense under a plea of limitation. The sale of the homestead was void. 123 Ark. 389; 130 Id. 21; 115 Id. 359. Appellant’s homestead right continued until he was 2i, and the statute could not run until that right expired. 53 Ark. 400. If the sale by the widow was sufficient to set the statute in motion, which is not conceded, appellant’s right of action to recover the estate inherited by him as heir to his father and his brother, did not accrue as to the homestead until more than five years after the judicial sale. 53 Ark. 400; 79 Id. 408; 115 Id. 359; 126 Id. 1; 14 Cyc. 1013; 93 Ark. 353; 31 Id. 576; 117 Id. 366; 116 Id. 233. The widow did not sell the land until more than six years after the judicial sale, and the five-year statute does not apply.
    2. If the assignment of dower to the widow was insufficient for lack of definite description, the petition by appellant’s guardian, in which a correct description of the lands was given, and in which it was alleged that these lands had 'been assigned to the widow as dower, and that appellant and his brother owned the reversionary interest therein, was the same in effect as if these children had been sui juris, and had appeared in court and acknowledged that the lands described had been regularly and properly assigned as dower to their mother. The court’s order thereon, which also gave a correct description, amounted to a judicial determination, confirming the life estate of the mother and the reversionary interest of the children. 2 Scribner, 83, § 23; Id. 87, § 32;
      Id. 88, § 33; 1 B. Mon. (Ky.) 91-92; 2 Mon. 284; 4 Ala. 166; Park on Dower, 266; 6 Sanford (N. Y.) 391; 102 Ark. 658. Appellant’s mother had a life estate in the lands as dower, and his right to recover did not accrue until her death.
    3. On the death of appellant’s infant brother, his estate in the lands went to the mother, and at her death it descended to appellant. C. & M. Digest, § 3471. As to the half interest of the deceased brother, appellant’s right of action could not have accrued until the death of the mother.
    4. The sale of the land under petition of the guardian was void. 129 Ark. 149, 152; 54 Icl. 627, 632, 641; 89 Id. 168; 4 Howard, 503.

      Crawford <& Hoolter, Taylor é Jones, A. II. Rowell, W. B. Alexander, M. Danaher and Palmer Danaher for appellees.
    The nearest approach in the complaint to stating a cause of action is in the allegation that the sale of the lands was illegal for the reason that the probate court did not have authority under the statute, but that allegation is a mere conclusion of law. To set aside the sale, some reason must be shown, before the court would be authorized to inquire into it.
    The complaint shows on its face that the plaintiff is barred by limitation. He was born November 20. 1889. This suit was instituted November 19, 1917. C. & M. Digest, § 6942; 112 Ark. 572.
    This is a collateral attack, alleging neither fraud nor duress. The court was without jurisdiction to grant the relief. 125 Ark. 302. Not only is appellant barred by limitation, but, if he ever had any right to set asidé the sale made by his guardian, that right has been lost by his long delay in bringing the suit. 55 Ark. 85; i81 Id. 279; 101 Id. 230-235; 112 Id. 467-473; 136 Id. 378-383.
    If the sale was wrongful, or the confirmation thereof erroneous, his remedy was by appeal within the time limited by statute. 54 Ark. 627; 44 Ark. 479; 46 Id. 25.

      In the petition of the widow to have dower set aside, in the report of the commissioners and in the order of the court approving their action, the land should have been described with as much accuracy as is required in a deed of conveyance. In this case the description is too vague and indefinite to locate the land, and the court’s order is the same as if no land had been embraced in the petition. 55 Ark. 562.
    Appellant’s right of action accrued, if lie had any, when his mother moved away and abandoned the homestead. 48 Ark. 230; 55 Id 572; 44 Id 479; 79 Id 410; 65 Id. 68; 72 Id. 446; C. & M. Digest, § 6942; 105 Ark. 649.
   Hart, J.

(after stating* the facts). According to the allegations of the complaint, Jas. M. Cunningham resided on the lots owned by him in block 33 in D. Harding’s Addition to Pine Bluff, Ark., at the time he died on the 24th day of December, 1889, and the same constituted his homestead. A guardian was appointed for said minors on the 13th day of July, 1892, and his petition for the sale of the reversionary interest of said minors in said homestead, as well as other lands, was presented to the probate court, and a sale duly had pursuant to an order made by said probate court. It was not alleged in said petition, or shown in said order for tiie sale of said lands, that there were no debts against the estate of said minors.

It also appears from the allegations of the complaint that the mother of appellant, who was also the widow of Jas. M. Cunningham, deceased, abandoned her homestead rights and had the homestead, together with other lands described in the complaint, allotted to her as dower. According to the allegations of the complaint, she filed her petition for dower on the 24th day of February, 1892. Her petition for dower and the order of the court granting the same are made exhibits to the complaint and are set out in our statement of facts. The report of the commissioners setting aside dower and the confirmation of the same by the probate court are also made exhibits to the complaint. In each of them the lands involved in this lawsuit are described as follows: “Pt. NW% of NW14 sec. 15, Tp. 6 S., R. 9 West, 13 acres. 48 feet x 123 Blk. 33, I). H. Addition to P. B. in Jefferson Co.”

The description of the lands is too indefinite to constitute a valid and binding allotment of dower. It would be impossible from the description to locate the lands and determine what land was actually set apart to the widow as dower. Deeds containing similar descriptions have been uniformly held void on their face. Evans v. Russ, 131 Ark. 335, and cases cited; Peters v. Priest, 134 Ark. 161; Glasscock v. Mallory, 139 Ark. 83; and Conolly v. Rosen, 144 Ark. 442.

Again, the attempted allotment of dower is void because it affirmatively appears from the proceeding's that the statute was not complied with. Section 3547 of Crawford & Moses’ Digest prescribes the procedure for the assignment of dower in the probate court. It reads as follows: “If dower be not assigned to the widow within one year after the death of her husband, or within three months after demand made therefor, she may file in the court of probate, or in the clerk’s office thereof in vacation, a written petition, in which a description of the lands in which she claims dower, the names of those having interest therein, and the amount of such interest shall be briefly stated in ordinary language, with a prayer for the allotment of dower; and thereupon all persons interested in the property shall be summoned to appear and answer the petition on the first day of the next term of the court.”

The statute contemplates that there shall be an adversary proceeding between the widow and those having an interest in the lands, and that all persons interested in the property shall be summoned. The petition of the widow, the order of the probate court allotting dower, the report of the commissioner, and the order of the probate court confirming tbe same all show that the proceedings were not adversary in character, and that there was nothing but an ex parte proceeding on the part of the widow.

It is true that the complaint alleges that the persons interested in the property were named in the proceedings. The proceedings, however, are made exhibits to the complaint and show to the contrary. The proceedings themselves affirmatively show that the statute was not complied with. Under the practice in equity, exhibits will control the averments of the compaint and the nature of che cause of action. Cox v. Smith, 99 Ark. 218, and Murrey v. L. R. Chamber of Commerce, 135 Ark. 38.

Again, it is alleged in the complaint that the minors appeared by their guardian in the proceedings in the probate court for the allotment of dower. The probate court proceedings show affirmatively that there was no appearance 'by the guardian of said minors, and, as we have just seen, the exhibits will control the averments of the complaint. It follows, therefore, for both reasons above stated, that the proceedings for the allotment of dower were void and of no effect.

It is contended, however, by counsel for appellant, that the probate sale of the homestead is void because the proceedings do not show that there were no debts against the estate of the minors, and that the case is governed by the rule announced in Ex parte Tipton, 123 Ark. 389, and Rushing v. Horner, 130 Ark. 21.

On the other hand, it is claimed by counsel for appellees that the rule announced in these cases has no application to the present case, and that under the allegations of the complaint it affirmatively appears that appellant is barred of relief by the statutes of limitations. In this respect counsel for appellees rely upon the case of Griffin v. Dunn, 79 Ark. 408. In that case the court held that, while the statute of limitations does not run against a cause of action in favor of the heirs for the recovery of the homestead during the occupancy by the •widow, an attempt by ber to alienate the homestead operates as an abandonment of the homestead, in which event the right of action of the heirs becomes complete, and the- statute of limitations begins to run against them.

The court also held that our statute of limitations relating to purchasers of land at judicial sales applies to a case where the right of action accrues after the date of such sale and within the period of five years, provided that the period of time between the completion of the right of action and the expiration of five years from the date of sale is not too short to allow a reasonable opportunity within which the right may be asserted. Under this rule we are of the opinion that appellant’s cause of action is barred by the statute of limitations. It is true that the allegations of the complaint are somewhat obscure, but, treating the pleading in the light that the parties themselves seemed to have treated it, the case is one calling for the application of the rule.

In Dowell v. Boyd, 140 Ark. 52, it was held that an obscure pleading will be treated in the light in which the parties themselves treat it.

In the original complaint, the partjr who now claims the land which comprised the homestead of Jas. M. Cunningham at the time of his death on the 24th day of December, 1889, was alone made a defendant. The original complaint alleges that he is in the unlawful possession of the same, claiming to be owner thereof by mesne conveyances from those holding under and by virtue of •the guardian’sí sale. Other allegations show that-the order for the guardian’s sale was made at the July term, 1892, of the probate court, and that the sale was duly made. The original complaint, continuing, alleges that after a short space of time, and while appellant was a very small child, his mother moved off of the land to another county, and that appellant was not aware that his father ever owned said land until he was informed of his rights by his grandmother, a short time before this suit, was filed, and after the death of his mother in 1915. It is fairly inferable, from these allegations that the mother of appellant sold the homestead and that the purchaser went into possession of the same soon after the guardian’s sale was made in 1892. Appellant alleges that he was born on the 20th day of November, 1889. This shows that he was not quite three years old when the guardian’s sale was had. He alleges that his mother moved away from the homestead when he was a very small child, and that he did not know that his father ever owned the land until after his mother died in 1915, and a short time before he filed this suit in 1917. It is fairly inferable from this that his mother abandoned the homestead by selling it, and that the purchaser went into the possession of it soon after the guardian’s sale in 1892.

In a suit in equity the exhibits may be looked to on demurrer for the purpose of testing the sufficiency of the allegations of the complaint. The bar of the statute of limitations may be pleaded by demurrer in equity when the complaint shows affirmatively that the statutory period has elapsed since the accrual of the cause of action. Evans v. Pettus, 112 Ark. 572.

The view that the complaint shows an abandonment of the homestead by the widow, and that the purchaser went into possession within five years after the guardian’s sale, is strengthened by the allegations of the amended complaint. From that portion of it which we have copied in our statement of facts, appellant alleges that “the said Ida G. Cunningham is said to have sold said lands.” Again we find this allegation, “that when the said Ida G. Cunningham sold said lands she abandoned her homestead rights therein, but she had before ignored and abandoned all her homestead rights in said land by having elected to take the same as a part of her dower,” etc.

Therefore, we hold that it is fairly inferable from the allegations of the complaint that the mother of appellant abandoned the homestead by selling it, and the statute of limitations then commenced to run against appellant. He is barred of relief, either under the five-year statute of limitations relating to purchasers at judicial sales, or the seven-year statute relating to actions generally to recover land. Crawford & Moses’ Digest, sections 6942 and 6946. Bach of these statutes contains a saving clause to minors for a period of three years after their disabilities shall have been removed.

In the present case the statute began to run when appellant was a minor, and he waited until nearly seven years after becoming twenty-one years old before he commenced this suit.

With regard to the lands which were not the homestead, the same rule applies. They were also sold at the guardian’s sale under orders of the probate court, and the five-year statute of limitations for the recovery of lands sold at judicial sales applies. This statute was intended to require all parties to bring suit against all purchasers at judicial sales within five years after the date of sale, where the purchasers entered into possession of the land within five years.

As we have already seen, it is fairly inferable that the purchasers went into possession of the lands soon after the sale was made, and appellant is barred of relief under the five-year statute against purchasers at judicial sales and also under the seven-year statute governing actions generally to recover land.

Again, it is contended that the mother of Jas. M. Cunningham, Jr., inherited an estate for life in his share of the lands when he died, and that appellant inherited from her when she died in 1915. Hence they contend that in any event appellant is entitled to recover one-half of the land under our statute of descents and distributions. We do not agree with counsel in this contention. Jas. M. Cunningham, Jr., inherited the lands from his father and died without descendants. In cases where the intestate shall die without descendants, if the estate come by the father, then it shall ascend to the father and bis heirs. Crawford & Moses’ Digest, § 3480. See also Carter v. Carter, 129 Ark. 7.

Appellant was the brother and sole heir at law of Jas. M. Cunningham, Jr., and he, and not the mother, inherited from Jas. M. Cunningham, Jr., at his death.

Therefore, the decree will be affirmed.


text:
    McGarity v. State.
    Opinion delivered January 23, 1922.
    1. Intoxicating liquors — setting up still. — A “still” is set up within Gen. Acts 1921, p. 373, § 3, when all the parts are assembled at one place and are ready for use as a still when connected together.
    2. Criminal law — abstract instructions — harmless error. — In a prosecution for setting up a distillery for manufacturing distilled spirits for beverage purposes, in violation of Gen. Acts 1921, p. 373, § 3, the court’s error in reading to the jury sections 1 and 2, making it unlawful to make or ferment mash, wort or wash fit for distillation, or to possess a still, was not ground for reversal where instructions made it plain that defendant was being tried under § 3.
    3. Intoxicating liquors — evidence.—In a prosecution for setting up a “still”, upon proof that the apparatus was found disconnected, it was not error to permit an experienced witness to explain the various parts of the still and how they were put together.
    Appeal from Grant Circuit Court; W. H. Evans, Judge;
    affirmed.
    STATEMENT OE EACTS.
    Bert MeGarity was indicted for the crime of setting up a distillery in this State for the purpose of manufacturing distilled spirits for beverage purposes.
    Ed. F. McDonald, sheriff of Grant County, Arkansas, and two of his deputies, were witnesses for the State. According to their testimony, they went to the neighborhood where Bert McGarity lived to make an investigation, and about 150 yards from Stan Collins’ house they found a worm. On the next morning they went down there and saw Bert McGarity in a bunch of bushes in a stooped position, and it looked like he was filing on something. He was about 50 yards from the sheriff and the deputies in fairly open woods, and when he saw them he ran off in the opposite direction. They could see for about 200 yards up the open fiat, and the sheriff shot twice to stop him, but he did not stop. They then went on up where the defendant was when they first saw him. They found some piping, a gasoline tank, about 60 gallons of mash, and all the fixtures belonging to a still. The still was not connected together, but all that had to be done to put it in operation was to connect the pipes and build a fire under it.
    According to the testimony of the sheriff, from his experience in .capturing wildcat stills he knew how they were connected and set up for use. He took the different parts of the still which he had taken and put them together. He testified that they found all the parts necessary to constitute a still if they were connected. The mash they found was ready to make up, and there was nothing to do but connect the still, put in the mash, and start the fire. They found some empty fruit jars near by and a little charcoal which might be used for filtering purposes. This all occurred in Grant 'County, Arkansas.
    The jury found the defendant guilty and assessed his punishment at one year in the State penitentiary. From the judgment of conviction the defendant has duly prosecuted an appeal to this court.

      Isaac McClellan and D. E. Waddell, for appellant.

      J. 8. Utley, Attorney General; Elbert Godwin and W. T. Hammock, assistants, for appellee.
    There is no variance. The act of assembling all the parts of the still in one place, for the purpose of manufacturing intoxicating liquor, even though the parts were not connected, was in itself sufficient proof that he intended to violate the law. 27 Ky. (4 J. J. Marsh) 177; 7 Words & Phrases, p. 6445.
    Even if it was error for the prosecuting attorney to read sections 1 and 2 of act 324 of Acts of 1921, it was not prejudicial. One alleging error must show prejudice. 89 Ark. 95; 89 Ark. 556.
   Hart, J.

(after stating the facts). It is first earnestly insisted by counsel for the defendant that the testimony is not legally sufficient to support the verdict. The defendant was indicted for the offense of setting up a. distillery for the purpose of manufacturing distilled spirits for beverage purposes, and the indictment was found under § 3 of Act 324 of the General Acts of Arkansas 1921, p. 372. Sec. 3 reads as follows:

“No distillery shall be set up in this State for the purpose of manufacturing distilled spirits for beverage purposes, and no distillery shall be used in the manufacture of such spirits. Any device or any process which separates alcoholic spirits from any fermented substances shall be regarded as a distillery.”

According to the testimony for the State, the sheriff of Grant County and his deputies found the defendant stooping over in the woods in Grant County as if he was filing something. When he saw them, he ran away. When they got there, they found all the parts of a still and some mash which was ready to be distilled into spirituous liquors. All that was necessary to do to make spirituous liquors was to connect the pipes of the still, put the mash in, and start a fire.

It is the contention of counsel for the defendant that this did hot constitute setting up a still within the meaning of the statute. We cannot agree with counsel in this contention. The words “set up” constitute a phrase of very wide latitude of meaning. The phrase as used in the statute does not necessarily and exclusively apply to a complete construction of the still so that it is ready for'use. We think a still is set up when all the parts are assembled at one place and are ready for use as a still when connected together. Otherwise a person might assemble all the parts of a still ready for nse and after making a run, by simply unscrewing a pipe and disconnecting the parts, evade the statute.

The sheriff testified that all the parts were there, and that all they had to do to put the still in operation was to connect the pipes and build a fire.

The evident purpose of the statute was to prevent any one from erecting a still and operating it. We think that, when all the parts are assembled and ready for use when the pipes are .connected, a still is set up within the contemplation of the statute. The evidence showed that there was a lot of mash ready to be distilled into spirituous liquors when the still was connected and a fire built under it. This showed that it was the intention of the party owning or operating it to use it for manufacturing distilled spirits for beverage purposes. The defendant was found there bending over, filing something, and ran away as soon as he was discovered. The jury might have found from his action that he was operating the still and was in the act of connecting its parts together for that purpose when he was discovered. This, in our opinion, was sufficient to warrant the jury in finding a verdict of guilty.

Counsel for the defendant also insists that the court erred in instructing the jury and refusing to give certain instructions asked by the defendant. We need not set out the instructions given, nor those refused. Those given are in conformity with the law as laid down in this opinion and those asked by the defendant are predicated upon the idea that the still was not set up within the meaning of the statute so long as its parts were not connected together.

It is next insisted that the court erred in reading sections 1 and 2 of act 324, above referred to, which makes it an offense to set up or operate a distillery in the State of Arkansas. Section 1 makes it unlawful to make or ferment mash, wort or wash. Section 2 makes it unlawful to possess a still. Section 3 makes it unlawful to set up or operate a distillery and defines the word ‘ ‘ distillery. ’ ’

The defendant was indicted under section 3, and the court should not have read to the jury sections 1 and 2 of the statute, for the reason that they had no application. We do not think, however, that any prejudice resulted to the defendant from reading the sections of the statute referred to. The instructions of the court made it plain that he was being tried under section 3 of the act, and his guilt or innocence depended upon the construction tó be given to that section.

When the instructions are considered with reference to the testimony introduced at the trial, we do not think that the jury could have been misled by the reading of sections 1 and 2 of the act to them. It is well settled in this State that a judgment of conviction will only be reversed for errors prejudicial to the rights of the defendant. Sims v. State, 131 Ark. 185; National Union Fire Insurance Co. v. School District No. 60, 131 Ark. 547, and Rogers v. State, 133 Ark. 85.

It is earnestly insisted by counsel for the defendant that the court erred in permitting the sheriff to testify how the parts of a still are put together for making fermented liquors and taking pipes and other parts of it and explaining to the jury how they were connected together.

Counsel rely upon the case of Briscoe v. State, 149 Ark. 648. In that case the court held that, on the trial of the defendant accused of being interested in the manufacture of intoxicating liquors, it was error to permit a prohibition enforcement officer to testify as to what had been his experience in capturing moonshine stills, and as to the habits of moonshiners generally in dismantling stills when the run had been completed and hiding the various parts of the still.

We do not think that case has any application to the facts presented by the record in the present case. The sheriff testified that he had had considerable experience in capturing moonshine stills and understood the parts necessary for their operation in distilling spirituous liquors and how to put them together ready for use.

In determining whether the still was set up within the meaning of the statute, it was competent to show by the sheriff that all the parts of the still were there, so that it was ready for operation when the parts were connected together.

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


author: Hart, J. McCulloch, O. J.

text:
    Hopper v. Fagan.
    Opinion delivered January 23, 1922.
    1. State — appropriations—expense of government. — Gen. Acts 1921, p. 564, providing for improving the acoustics of the Senate Chamber and the Hall of the House of Representatives, and making an appropriation therefor, is valid, though the appropriation was not passed by a two-thirds majority of each House, the appropriation being for a necessary expense of government.
    2. State — letting of- contracts — construction of statutes.— Gen. Acts 1921, p. 564, providing that the Secretary of State shall enter into a contract or contracts for the improvement of the acoustics of the two legislativo chambers, was not invalid for failure to provide that the contract or contracts shall receive the approval of the Governor, Auditor and Treasurer, as required by Gen. Acts 1921, p. 239, as the two acts should be construed in harmony with each other.
    6. Statutes — construction.—The intention of the Legislature must provement of the acoustics of the two legislative chambers provided for by Gen. Acts 1921, p. 564, is within Const, art 19, § 15, requiring contracts for repairing and furnishing of the halls and rooms used for the meetings of the General Assembly to be given to the lowest responsible bidder.

      4. State — approval op state contracts. — A contract for the improvement of the acoustics of the legislative chambers which did not receive the separate approvals of the Governor, Auditor and Treasurer, is void.
    5. State — improvement op acoustics op legislative halls. — Gen. Acts 1921, p. 564, providing that the Secretary of State ghall let a contract or contracts for improving the acoustics of the Senate chamber and the hall of the House of Representatives, is an entire and indivisible act, and the Secretary of State was not authorized to let a contract for the improvement of one hall alone, though the appropriation might not be sufficient to pay for improving the acoustics of both halls.
    6. Statutes — construction.—The intention of the Legislature must be sought from the meaning of the language used where the statute is ambiguous, but where its meaning is not ambiguous there is no room for construction.
    Appeal from Pulaski Chancery Court; J. E. Martineau, Chancellor;
    affirmed.
    STATEMENT OP PACTS.
    E. M. Fagan, a citizen and taxpayer of the State, brought suit in equity against Ira C. .Hopper, as Secretary of State, and the Union Acoustical Company, of St. Louis, Mo., to enjoin them from carrying out a contract for the improvement of the acoustics in the hall of the House of Eepresentatives.
    The defendants filed an answer to the complaint, and the plaintiffs then demurred to the answer.
    Subsequently, Allen Kennedy and Jas. E. Wood, also citizens and taxpayers, filed a complaint against the same defendants and were made parties to the action. The defendants interposed a demurrer to their complaint.
    Inasmuch as the questions presented are questions of law, we will state the material facts of the complaints and answer but once and consider them together.
    The court sustained a demurrer to the answer of the defendants, and overruled the demurrer of the defendants to the complaint of the plaintiffs, Kennedy and Wood. The defendants refused to plead further to the complaint of the plaintiff, E. M. Fagan, and stood on their demurrer to the complaint of Allen Kennedy and J. R. Wood. Whereupon it was decreed that the Secretary of State be enjoined from carrying out the terms of his purported contract with the Union Acoustical Company.
    The material facts alleged in the complaint are as follows:
    By an act approved March 26, 1921, the General Assembly of the State of Arkansas passed an act to improve the acoustics in the Senate Chamber and- Hall of the House of Representatives and to appropriate the necessary money therefor.
    On April 25, 1921, Ira C. Hopper, as Secretary of State, entered into a contract with the Union Acoustical Company for the improvement of the Hall of the House of Representatives for the sum of $12,000. The contract provided that the treatment of the balcony, ceiling, eleven wall panels, two crescent-shaped panels on main ceiling, bottom row of art glass panels in dome and center hanger in dome, all with “Multi-Fiber” (flax fiber) acoustical felts in two and three thicknesses, as per specifications attached. The method of application to be the highest type of workmanship. All fiber-felts are to be permanently fastened to securely fastened foundations; balcony ceiling to be covered with union acoustical * # * * canvas; crescent-shaped panels in main ceiling to be covered with Fontainebleau rep tapestry fabric, main hanger in dome, and panels in dome and wall panels to be covered and draped with high grade velvet of color to be determined by Secretary of State, according to specifications attached. The decorations are to be in harmony and keeping with the decorative scheme of the interior at present, and a finished decoration in itself.”
    The Union Acoustical Company guaranteed in the contract that the reverberations and echoes of the hall of the House of Representatives would be removed when their contract was executed, and. that the flax-fiber acoustical felts to be used in the installment would retain their original form and last indefinitely. Other facts will be stated under appropriate headings in the opinion.
    The defendants have duly prosecuted an appeal to this court from the decree of the chancery court.

      J. 8. TJtley, Attorney General, and Cohn, Clayton $ Cohn, for appellant.
    The act is not in conflict with section 31 of article 5 of the Constitution. It provided for a necessary expense of government, as much so as the building of a new State House. 66 Ark. 575; 76 Ark. 197; 117 Ark. 352. The act received a two-thirds vote of the members present and voting, there being a quorum present, which is all that is required, and not two-thirds of the elected membership. 248 U. S. 276; 253 U. S. 350; 32 Miss. 650; 4 Mo. 303; 2 Mich. 207; 4 S. C. (4 Rich.) 430; 12 S. C. 200; 67 S. C. 324; 72 So. 297.
    The act is not in conflict with sec. 15 of art. 19 of the Constitution, and is valid. In testing the validity of an act the courts will resolve all doubts in favor of the act, and will, if possible, give it a construction in harmony with the Constitution. 95 Ark. 412; 77 Ark. 250; 75 Ark. 120; 69 Ark. 376; 56 Ark. 485; 58 Ark. 407; 76 Ark. 197. The present act must be read and construed together with act No. 171 of 1921, providing for approval of contracts by the Secretary of State. Appellant admits that the contract was not approved by the proper officers, but contends that the act was valid, and that the lower court erred in enjoining any further letting of bids under the act. ■ •
    The contract in question was not required to be let in accordance with art. 19, sec. 15, Const. It is not a “repairing” of the halls. “Repairing” means restoration after decay, injury, etc. 141 Ark. 122; 237 Fed. 31; 158 Iowa 392. The contract contemplated the construction of an addition to the halls.

      The act vested discretion in the Secretary of State in letting the contracts, and the fact that the major portion of the appropriation is to be expended in doing only a part of the work is no ground to hold the contract invalid, as the Legislature in its discretion could malee an additional appropriation to complete the work. See 4 Idaho 139, ,36 Pac. 702.

      Coleman, Robinson £ House; W. G. Riddick and Owens £ Ehrman, for appellee.
    The act is void because in conflict with sec. 31, art. 5, and sec. 15, art. 19 of the Constitution. 220 S. W. 586. 586.
    The thing’ contemplated in the contract is “repairs or furnishing” and not “additional construction.” See 103 Pac. 917; 68 Fed. 171; 24 Kan. 271.
    The contract was not let in the manner required by the Constitution, and there was no letting of the contract to the lowest bidder. 54 Ark. 645.
    Where the wording of a statute is ambiguous, the courts resort to rules of construction in arriving at the legislative meaning; but where, as here, there can be but one meaning, no construction is necessary, and the act cannot be bolstered up by construing it in connection with act 171 of 1921. 175 IT.' S. 414; 232 U. S. 404.
    The contract is void because practically all the appropriation is to be expended upon one hall, whereas the improvement was intended to cover both halls.
   Hart, J.

(after stating the facts). It appears from the allegations of the complaint that the act under consideration did not receive a majority of two-thirds of both houses of the General Assembly. Therefore, it is c1aimed that the a.c+ is in violation of art. 5, § 31, of the Constitution of 1874, which provides, in substance, that no appropriation of money shall be made except to raise means for defraying the necessary expenses of government except by a majority of two-thirds of both houses of the General Assembly.

In State v. Sloan, 66 Ark. 575, the eonrt held that an appropriation for building a new oapitol was a necessary expense of government, and that a majority of two-thirds of both houses of the General Assembly was not necessary to constitute a valid appropriation therefor. That case rules here. If the building of a new capitol is a necessary expense of government, it is equally apparent that the repairing and furnishing of the Senate Chamber and Hall of the House of Representatives would also be a necessary expense of government.

It is next contended by counsel for the plaintiffs that the act under consideration is unconstitutional because it does not provide that the work shall be performed under a contract to be given to the lowest responsible bidder and that the contract shall be subject to the approval of the Governor, Auditor, and" Treasurer, as required by art. 19 § 15, of the Constitution of 1874.

We do not agree with counsel in this contention. The act does authorize the Secretary of State to enter into a contract for the improvement of the acoustics in the Senate Chamber and the hall of the House of Representatives. At the same session of the Legislature, by an act approved February 23, 1921, the Secretary of State was designated to superintend the letting of all public contracts for the purposes set forth in art. 19, § 15 of the Constitution, and he was directed to proceed in accordance with the provisions of the statute already in existence relating to the letting of such contracts. Public Acts of Arkansas, 1921, p. 239.

The act also provides that before such contracts shall become binding they shall receive the approval of the Governor, Auditor, and State Treasurer. The Legislature must be presumed to have had this statute in mind and to have enacted the statute under consideration with reference thereto. The statutes construed together are in harmony with each other and provide a method of letting the contract in question according to the provisions of the section of the Constitution just referred to. Thompson v. Rd. Imp. Dist., 139 Ark. 136; Pope v. Nashville, 131 Ark. 429; Smith v. Farmers’ Bank, 125 Ark. 459; Benton v. Willis, 76 Ark. 443; Beavers v. State, 60 Ark. 124; and State v. Sewell, 45 Ark. 387.

It is insisted by counsel for the defendants that the work to be performed under the provisions of the act under consideration does not Jconstitute “the impairing and furnishing the halls and rooms used for the meetings of the General Assembly and its committees,” as provided in art. 19, § 15 of the Constitution. They claim that the word “repairing” means to restore or renew, and the word “refurnishing” refers to the furniture to be placed and used in said rooms.

We do not agree with counsel in this contention. The word, “furnishing,” as used in the section of the Constitution, is a noun. Its dictionary meaning is the act of providing with furniture or fittings of any kind. The object of the act under consideration was to improve the acoustics of the Senate Chamber and the hall of the House of Representatives. Under the contract this was to be accomplished by flax-fiber acoustic felts placed upon the ceiling and walls of the chambers. The manner of placing them there made them an adjunct of the chambers and constituted them the fittings of the chamber. Therefore, we think that the contract came within the meaning of the words, “furnishing the hall and the rooms used for the meeting of the General Assembly.”

In Ellison v. Oliver, 147 Ark. 252, the court held that under art. 19, § 15 of the Constitution, “approval” of public contracts by the Governor, Auditor, and Treasurer means the approval by each of the above officers separately, and not by them as a board.

The court further held that the contracts provided for in said section without the approval of the Governor, Auditor, Secretary of State, and Treasurer separately are void. It was also field in that case that the public contracts provided for in it which are not given to the lowest responsible bidder are void.

The record in the present case shows that the contract in question did not receive the approval of the Governor, Auditor, and Treasurer, as required by the section of the Constitution just referred to, and that it was not let to the lowest responsible bidder after advertisement in the manner required by said section and the statute relating thereto. It is true the reason assigned by the Secretary of State for not doing so is that he did not think the contract fell within the provisions of said section of the Constitution. The section of the Constitution, however, is mandatory and must be complied with in order to render contracts made under its provision valid. It follows that the contract made by the Secretary of State with the Union Acoustical Company for the improvement of the acoustics of the hall of the House of Representatives was void, and the chancellor was right in enjoining the further performance of the contract.

It is next insisted that the contract is void because it only provides for the improvement of the acoustics in the House of Representatives for the sum of $12,-000, when the appropriation for both houses amounts to only $13,750. It is alleged in the complaint that the two halls are about the same size, and that there is as much necessity for improving the acoustics of the Senate Chamber as there is for improving that of the hall of the House of Representatives.

In view of the fact that the Secretary of State might let another contract we deem it necessary to dispose of this contention. The act under consideration reads as follows:

-“Section 1. The Secretary of State is hereby authorized and directed to enter into a contract with some person, firm or corporation for the improvement of the acoustics in the Senate Chamber and the hall of the House of Representatives. The Secretary of State shall make due and proper investigation as to what should be done toward the improvement of the acoustics of the Senate Chamber and the hall of the House of Representatives, and he is hereby authorized to make such contract or contracts as he may deem expedient and reasonable, and said contract shall provide for the completion of said work on or before January 1, 1923; provided, however, the Secretary of State, shall require that the person, firm or corporation which is awarded the contract to make and enter into a good, bond, in the sum of at least as much as the contract price, that the contractor shall faithfully perform the contract, and the work shall meet the requirements set out in said contract; and that said contract shall be completed within the time specified therein.

‘ ‘ Section 2. That the sum of thirteen thousand seven hundred and fifty ($13,750) dollars, or so much thereof as may be necessary, be and the same is hereby appropriated out of the general revenue fund of the State for the purpose of carrying out said contract. All estimates or payments due under said contract shall be certified by the Secretary of State, and the Auditor is directed and instructed to issue warrants in payment thereof, and the State Treasurer is directed and instructed to pay the said warrants upon presentation thereof, in the manner now prescribed by law for paying other claims against the State.” General Acts of Ark. 1921, p. 564.

The court believes that the act is an entire act and not severable. The intention of the Legislature must be sought from the plain meaning of the language used where it is not ambiguous. 'Construction and interpretation have no place where the terms of a statute are plain and certain. The act in plain terms directs the Secretary of State to enter into a contract for the improvement of the acoustics in the Senate Chamber and the hall of the House of Representatives. ■We discover nothing in the context which furnishes any adequate reason for departing from the' rule of literal interpretation.

It is true that the next sentence provides that the Secretary of State shall make due and proper investigation as to what shall be done towards the improvement of the acoustics of the Senate Chamber and the Hall of the House of Representatives, and he is authorized to make such contract or contracts as he may deem expedient and reasonable. The object of the investigation, however, is not to determine whether only one of the halls should be improved, but it is to determine the extent and kind of improvements necessary for improving the acoustics of each hall. Doubtless the Legislature knew that the advice of an expert would be necessary in determining the kind and extent of the furnishings for each hall. In other words, without some investigation, the Secretary of State could not know what was necessary to be done to improve the acoustics of either hall, and it was in order that he might intelligently let the contract for the work to the lowest responsible bidder that he was given the authority to investigate as to what should be done toward the improvement of the two halls. It will be noted that he is directed to investigate what should be done toward the improvement of the acoustics of the Senate Chamber and the Hall of the House of Representatives.

It is also contended that the Legislature intended to give him a discretion in the matter by authorizing him to make such contract or contracts as he may deem expedient and reasonable. We think, however, that this was done in order to enable him to let separate contracts for the work so that it could be carried on together and ■ be finished by the time the next Legislature should convene, if in his discretion such a course should be deemed necessary. This is borne out by the fact that no separate appropriation is made for each hall, but a lump sum of $13,750, or so much thereof as may be necessary, is appropriated for the purpose of carrying out said contract.

Therefore, we think that, according to the plain words of the act, the Legislature intended that the acoustics of both halls should be improved, and courts are not permitted to mould language to meet any alleged convenience or necessity. If the Legislature had intended to give the Secretary of State discretion as to whether he should make a contract for the improvement of one or both of the halls, it would have doubtless manifested its intention by appropriate words.

It follows that the decree must be modified, in so far as it attempts to restrain the Secretary of State from letting a contract, and in other respects is affirmed.

McCulloch, O. J.

(concurring). I agree with the majority that the statute is valid, and also that the contract is void for the reasons that it was not awarded in the manner prescribed by the Constitution and did not receive the approval of the Governor, Auditor, and Treasurer. But my view is that the subject-matter of the contract falls within the term “repairing” as used in the Constitution, rather than within the term “furnishing.” The improvement of the acoustics of the assembly rooms is not a part of the furnishings, I think, but constitutes alterations. The term “repairing” was used by the framers of the Constitution as meaning to make habitable, convenient and suitable for the intended purposes, and this included alterations found necessary from time to time. It is not conceivable that the framers of the Constitution meant to restrict the powers of the lawmakers with respect merely to making repairs and to leave them free-handed in making alterations or additions. The term employed by the framers of the Constitution should be construed with reference to the manifest design to place a restriction upon expenditures for the assembly halls, and for the purposes expressly mentioned in the section of the Constitution now under consideration.

My chief disagreement with the conclusions of the majority is, however, in regard to that part of the opinion which holds that the funds appropriated, may not be expended wholly in the improvement of one of the assembly rooms to the exclusion of the other. It is not a question of the statute being separable or inseparable in its purposes — it is, I think, more a question whether or not the authority of the Secretary of State is restricted to the accomplishment of the whole of the legislative mandate or none. It is not charged that the contract is an improvident one, or that the officer is attempting to arbitrarily abuse his authority by improving only one of the halls. The challenge goes merely to his authority under the statute to improve one of the halls, leaving the other unimproved. My conclusion is that the authority conferred by the statute is to go as far as the appropriated funds will last, and if insufficient to pay for all of the contemplated improvement the remainder can be left undone until the lawmakers see fit to make further appropriations. In other words, the part of the statute which mentions the two Houses of the Assembly in describing the subject-matter of the improvement is a grant of authority and not a restriction. Legislative appropriations for future expenditures are generally based upon mere estimates, and they are not defeated because they subsequently prove inadequate.

Mr. Justice Smith shares these views.