author: McCulloch, C. J. Hart, J.,

text:
    State ex rel. Craighead County v. St. Louis-San Francisco Railway Company.
    Opinion delivered February 11, 1924.
    1. Courts — stare decisis. — Federal district courts are bound by-decisions in other cases of the Circuit Court of Appeals for the circuit construing the State Constitution, though in conflict with subsequent decisions of the highest court of the State.
    2. Judgment — res judicata — erroneous judgment. — While the State Supreme Court is the final arbiter in construing the State Constitution and statutes, and -a conflicting decision of a Federal court does not constitute a precedent for the State court, the Federal court’s judgment in a given proceeding constitutes a final adjudication of the subject-matter and is binding on the State courts, under the full faith and credit clause of the Federal Constitution.
    Judgment — res judicata — conclusiveness.—A judgment of a Federal district court in a case within its jurisdiction, commanding the assessing officers of a county to assess property, at its full valuation in order to pay a judgment rendered by such court against the county, is not void, though in conflict with the decision of the court of last resort in the State in the construction of the Constitution and laws of this State.
    Courts — united states supreme court — conclusiveness of decisions. — Decisions of the United States Supreme Court concerning the jurisdiction of Federal courts are conclusive on courts of the State.
    JUDGMENT' — FEDERAL JUDGMENT IN STATE COURT. — When the effect of the judgment of a Federal court is questioned in subsequent litigation in a State court having jurisdiction of the subject-matter and parties, the State court may determine for itself the scope and extent of that judgment, though that is a Federal question reviewable by the Supreme Court of the United States.
    Taxation — assessment of property. — A judgment of the Federal court directing an assessment of all property 'in a county at its full valuation contemplates an assessment for ¿11 purposes, and an assessment of property at its full ■ valuation for county purposes only is invalid.
    Judgment — res judicata — representation of taxpayers. — Taxpayers are bound by an assessment in accordance with the judgment of a court having jurisdiction in an action against the assessing officers, by whom they are represented in a matter in which they are necessarily interested, but are not bound by an assessment not authorized by such judgment or by the State laws.
    Taxation — illegal assessment. — Taxpayers are not bound by an illegal assessment, though the effect is merely to relieve them from part of the assessment which otherwise would be imposed.
    Taxation — overdue tax act. — Crawford & Moses’ Dig., § 10204 et seq., authorizing suits against corporations for the collection of overdue taxes, empowers the courts of equity to adjudicate and enforce the collection of delinquent taxes which are authorized by the laws of the State.
    Taxation — sufficiency of plea of tender. — Where corporations, sued for delinquent taxes, pleaded tender of the proper amount due, which was refused, the court did not err in refusing to adjudge a penalty, interest and costs against defendants because of their failure to make their tender good; such plea being in effect a continuing offer to pay.
    Appeal from Craighead Chancery Court, Western District; J. M. Futrell, Chancellor;
    affirmed.

      J. S. Utley, Attorney G-eneral, and A. P. Patton and Horace Sloan, for Craighead County.
    Diversity of citizenship gives the Federal court jurisdiction to determine questions of State law. 42 Sup. Ct. Rep. 375; 213 IT. S. 175; 29 Sup. Ct. Rep. 451; 53 L. ed. 753; 231 IT. S. 294; 34 Sup. Ct. Rep. 48; 68 L. ed. 229; 43 Sup. Ct. Rep. 192; 43 Sup. Ct. Rep. 51. “Full faith and credit” due to a Federal court judgment constitutes a Federal question. 169 IT. S. 465; 18 Sup. Ct. Kep. 415; 42 L. ed. 819; 120 U. S. 141; 7 S. Ct. 472; 191 IT. S. 499; 24 S. Ct. 154; 48 L. ed. 276; 184 IT. S. 497; 146 IT. S. 657; 36 L. ed. 1123; 6 Wall. 166, 18 L. ed. 768; 7 How. 72; 237 U. S. 477; 153 U. S. 671; 107 U. S. 3; 27 L. ed. 346. Taxpayers are bound by an award pf mandamus against officers of taxing district. 133 N. Y. 187, 30 N. E. 965, 31 N. E. 334, 23 Am. St. 610; 2 Van Fleet, Former Adjudication, p. 1153. A judgment at law must first be obtained before mandamus to enforce collection will issue. 106 U. S. 663; 102 U. S. 187; 105 U. S. 237; 129 U. S. 44. Mandamus, after judgment, is a substitute for the ordinary process of execution. 9 Wall. 415; 6 Wall. 166; 122 U. S. 306; 6 Wall. 210 ; 132 IT. S. 210; 102 U. S. 472; 24 Hw. 376; 34 Ark. 291; 48 Ark. 331; 96 Ark. 465. Neither a State nor a Federal court can enjoin proceedings in the other. 61 W. Va. 183; 11 Ann. Cas. 741; 9 Wall. 409; 188 IT. S. 537; 172 U. S. 148; 4 Dill. 224. A judgment of a Federal court cannot be assailed collaterally in a State court. 17 S. W. 502; 109 U. S. 162; 62 Calif. 40. The Federal court had jurisdiction to require the assessing officers to make a full value assessment. 222 Fed. 480 ; 239 H. S. 641. Contra, see 127 Ark. 349; 129 Ark. 41; 130 Ark. 259. In such case, the Federal courts may determine for themselves what the State law is. 263 Fed. 866; 107 U. S. 20; 215 U. S. 349; 275 Fed. 747; 119 IT. S. 680; 120 U: S. 759; 190 U. S. 437; 193 IT. S. 532; 215 IT. S. 349. But, as to contracts made after a State court’s decision, the Federal court will follow the State court. Ii8 Wall. 71; 101 IT. S. 677. However, the court’s decision must 'be on the precise point involved. 131 Fed. 705; 134 Fed. 423; 130 Fed. 251; 123 Fed. 480; 85 Fed. 180. Where a State court has decided a Federal question, its decision, though erroneous, is binding on collateral attack. 51 Fed. 858; 53 Fed. 411; 202 Fed. 82. A State court cannot challenge the jurisdiction of a Federal court to render a particular judgment. 67 Ark. 469; 213 U. S. 207; 152 U. S. 327; 198 U. S. 188; 151 Ky. 185, 151 S. W. 404; 63 S. C. 542, 41 S. E. 761. Where a court has jurisdiction, its judgment is binding until reversed in a proper proceeding. 7 How. 612; 107 Fed. 305; 199 Pac. 696. Though a State court’s decision of a Federal question is erroneous, the Federal courts will not annul it-on collateral attack. 132 IT. S. 210; 20 Wash. 396; 72 Am. St. 110; 109 Tenn. 315'; 70 S. W. 1031; 10 N. M. 416; 62 Pac. 987; 5 S. D. 539; 59 N. W. 833; 26 L. R. A. 493; 104 Fed. 113; 43 C. C. A. 429; 79 Fed. 567; 25 C. C. A. 87; 80 Fed. 686; 25 O. C. A. 469; 97 Fed. 435; 38 C. C. A. 250; 85 Fed. 189; 29 C. C. A. 106; 28 Fed..407; 106 Fed. 459; 45 C. C. A. 429; 55 Ark. 39,8; 22 Ark. 550; 75 Ark. 415; 68 Ark. 83; 64 S. C. 374; 42 S. E. 180; 14 Wis. 180; 134 N. Y. 461; 31 N. E. 987; 30 Am. St. 685; 37 N. Y. 511; 43 N. Y. 184; 105 Ark. 450. A Federal court may compel an assessment on a full valuation for the payment of indebtedness. 97 U. S. 300 ; 99 H. S. 152. The assessment conformed to the order of the Federal court. Hays v. Missouri Pac. Pod. Go., 159 Ark. 101; 62 Ark. 461; 92 Ark. 492; 127 Ark. 349. It is not necessary that the assessment for all purposes should be doubled. 57 Ark. 509.

      Thomas B. Pryor and Gordon Frierson, for Missouri Pac. Rd. Co., and W. F. Evans and W. J. Orr, for St. Louis-San Francisco Ry. Co.; Gáu-tney é Dudley and E. L.Westbroohe, of counsel.

      The assessment was not' made as the writ of mandamus commanded. 62 Ark. 461; 92 Ark. 492; 124 Ark. 569; 127 Ark. 349; 129 Ark. 41; 250 S. W. 879; 244 U. S. 499; 101 U. S. 153; 209 Fed. 380; 270 Fed. 369; 283 Fed. 318; '28 Atl. 523; 51 N. H. 455; 58 N. H. 38; 44 111. 229; 54 Kan. 781; 274 Fed. 630; 157 N. W. 731; 74 Atl. 67; 112 N. E. 700; 85 Fed. 302; 258 Fed. 458; 222 Fed.-568; 199 Fed. 237. Mandamus will not issue to compel the performance of an act not required by law. 127 Ark. 349; 77 Fed. 567; 23 C. C. A. 2,36; 95 U. S. 769; 99 U. S. 591; 155 U. S. 1; 30 Ark. 450; 46 Ark. 312; 47 Ark. 80; 104 Ark. 590. A writ which commands officers to violate the Constitution is void. 104 U. S. 604. This court is the final arbiter in the construction of the Constitution and laws of this State. 127 Ark. 349; 44 Sup. Ct. Bep. 40; Id. 50 ; Id. 62; 258 Fed. 458; 244 U. S. 499.
   McCulloch, C. J.

There are two consolidated actions involved in this appeal, one against the defendant, St. Louis-San Francisco Bailway Company, and the other against the Missouri Pacific Bailroad Company, each instituted in the chancery court of Craighead County by the Attorney General, in the name of the State of Arkansas, for the use and benefit of Craighead County, to recover delinquent county taxes due for the years 1921 and 1922.

It is alleged in the complaint that all property in Craighead County was assessed, for all purposes other than for county taxation, at fifty per centum of its actual value, so as to conform to the rate of assessment in other counties, but that there was a separate assessment for county purposes at one hundred per centum valuation, and that this was done under the requirement of a mandamus issued by the United States District Court, in a suit instituted by a creditor of the county to recover on past due indebtedness. It was also alleged that said defendants in each case had paid the taxes extended against its respective property for all purposes other than county taxation, but had each refused to pay the county taxes as extended, and had tendered the amount of taxes due on a fifty per centum valuation. Bach of the defendants, in its answer, challenged the validity of the assessment, on the ground that it was contrary to the laws of this State as interpreted by the court of last resort, and also denied that there had been any assessment of real property by the Tax Commission at a valuation of one hundred per centum.

The facts in the case are undisputed. On February 17, 1921, the United States District Court for the Western Division of the Eastern District of Arkansas, in an" action in which an incorporated fraternal association, named the Maccabees, was plaintiff, and Craighead County was defendant, rendered a judgment in favor of said plaintiff and against said defendant for recovery of the sum of $77,680; and on March 2, 1921, said court, in an action instituted by said plaintiff, the Maccabees, against the assessing officers and clerk of Craighead County, and the members of the State Tax Commission, to compel said officers to assess the taxes to pay said judgment against the county, entered a judgment directing that a mandamus issue against the assessing officers and the State Tax Commission, requiring an assessment of property for taxes at full valuation. The particular language of this judgment was that'“a mandamus issue requiring the defendant to assess, at its full value in money, all property in Craighead County, and to continue said assessment at its full value in money until the judgment of the plaintiff herein for $77,680 and costs shall have been paid in full.”

It does not appear, from the record in this case, that the Tax Commission made any change in its assessment of railroad property for the year 1921, but let its assessment stand, as made throughout the State on railroad property, at a valuation of fifty ■ per centum. The assessor of Craighead County, however, assessed all property in Craighead County at fifty per centum for all purposes other than couifiy taxes, and made a separate 'ssessment for county purposes at one hundred per centum of tlie valuation, using an extra column on the assessment books for such separate assessment.

In the year 1922 the State Tax Commission, in compliance with the said mandamus issued by the United States District Court, adopted a resolution applicable to the taxable property of Craighead County, commanding the assessor of Craighead County to “double the amount of the assessment as shown by the certificates of this Commission, for the purpose of extending thereon the general county tax rate for Craighead County, Arkansas, and that he show in a separate column said fifty per centum assessment for the purpose of extending State, three-mill countj^ road tax, school district tax and municipal corporation tax thereon.” In each of the years the taxes were extended on the books for county purposes on the basis of one hundred per centum valuation, but for all other purposes on the basis of fifty per centum valuation. Each of the defendants in these actions paid the taxes for all other purposes, but refused to pay the taxes extended against its property for county purposes, and tendered the amount due -on an extension based on a valuation of fifty per centum. The tender was refused, and this action was instituted to compel the payment.

The chancellor held that the assessment at full valuation for county purposes was void, and rendered a decree for the recovery bv plaintiff of the amount of taxes tendered by each of the defendants; that is to say, the amount of taxes on a basis of fifty per centum valuation.

We are unable to agree with the learned chancellor in his view that the judgment of the United States District Court is void because it attempts to impose on the assessing officers a requirement contrarv to the Constitution of the State, as interpreted by this court. It is true that the iudP’ment of the court was not in accord with the Constitution, as interpreted by this court, with respect to the requirement of uniformity throughout the State in the assessment of property. State v. Meek, 127 Ark. 349. In that case we held that there must be uniform valuation of property for taxation purposes throughout tlie State, and that the tax assessor of a given county could not be compelled by mandamus to assess property in his county at full valuation, so as to put the assessment out of conformity with other assessments in the State, as directed by the State Tax Commission. The decisions of the United States Circuit Court of Appeals for the Eighth Circuit are in conflict with the decision of this court on that subject (United States v. Jimmerson, 222 Fed. 489), and the district courts in this circuit are therefore bound by those decisions. United States v. Cargill, 263 Fed. 856. The court of last resort of the State is, of course, the final arbiter in the interpretation and construction of the Constitution and statutes of the State. A conflicting decision of the Federal court does not constitute a precedent to be followed by the State court, but the judgment itself in a given proceeding constitutes a final adjudication of the subject-matter of the litigation so as to bind the State courts, under the provision of the Constitution and statutes of the United States requiring full faith and credit to be given to the judgment of the Federal courts. That is to say, the Federal court has jurisdiction of the subject-matter to adjudicate the rights of the parties to the action and their privies. Any judgment rendered thereon will be binding.on the State courts, even though the decision is found to be in conflict with the decision of the court of last resort of the State in the interpretation of the Constitution and laws of the State. There is just that distinction between the doctrine of res judicata and the doctrine of stare decisis. The Federal courts exercise an independent judgment in the construction of the Constitution and statutes of the State in which the cause of action arises, and they usually follow the interpretation adopted' by the court of last resort in the State, but any error in that respect must ,be corrected by appeal, and does not render the judgment void. There are many announcements of this rule by the Supreme Court of the United States, and the cases are so numerous that it is scarcely necessary to cite them. They are collected in the briefs of counsel in the case. As a late announcement on this subject, reference is made to the comparatively recent case of Kuhn v. Fairmont Coal Co., 215 U. S. 349, and the still later case of Cumberland Glass Mfg. Co. v. DeWitt, 237 U. S. 447. In the application of this rule, it follows that the United States District Court, in the litigation between the Maccabees and Craighead County, involving the right to recover for debt and to enforce the judgment, had jurisdiction to compel the assessing officers to make an assessment of property for the purpose of raising funds to pay the judgment, and its decision in the interpretation of our Constitution with respect to the limitation upon the taxing power, though in conflict with the interpretation given by this court, was not void, for the reason that the jurisdiction of the court, based on the diversity of citizenship of the parties, in the decision of the rights of the parties to that action, drew to that court the jurisdiction to interpret the laws under which the cause of action, if any existed, arose. Riggs v. Johnson, 6 Wall. 195; Proutt v. Starr, 188 U. S. 537. There are decisions of this court holding, that, even though a Federal court errs in its adjudication with respect to the taxing power of this State, the judgment of that court is binding upon the State court as to rights adjudicated in that particular action, even though in conflict with decisions of this court in the interpretation of the Constitution and laws' of the State. Vance. v. Little Rock, 30 Ark. 435; Graham v. Parham, 32 Ark. 676; Gaines v. Springer, 46 Ark. 502; Garland County v. Hot Spring County, 68 Ark. 83.

The decisions of the Supreme Court of the United States concerning the jurisdiction of Federal courts are conclusive upon the State courts, and that court has decided that it is within the jurisdiction of the Federal court to compel the assessing officers of a State to levy the full limit of taxes allowed by the laws of the State for tbe purpose of enforcing its'judgment. Memphis v. Brown, 97 U. S. 300; United States v. Ft. Scott, 99 U. S. 152.

Counsel for the defendants rely on the decision of ' the Supreme Court of the United States in Ex parte Rowland, 104 U. S. 604, but that case has no application, for tbe reason that it involved a mandamus against officers of a county who had no authority under the laws of the State to assess or levy taxes.

When the effect of the judgment of the Federal court is called in question in subsequent litigation in a State court in which the latter has jurisdiction of the subject-matter and1 of the parties, the State court may determine for itself the scope and extent of that judgment, though that is a Federal question, which may be reviewed by the Supreme Court of the United States, on proper application, 'by writ of error or certiorari. An error of the State court in a decision as to the effect of the Federal court judgment would have to be corrected in that way. It is therefore proper for us to consider, at this point of the controversy, what is the effect of the judgment of the Federal court, and this must be determined from an ’examination of the face of the record in the case in which the judgment was rendered.

The judgment directed that the assessing officers of the county “assess at its full value, in money, all property in Craighead County.” This does not specify the mode of assessment, and that is left to the operation of the State laws as construed by this court. It does not direct that the assessment shall extend only to county taxation, but it applies to the whole assessment. This court has decided, in a recent case, that, under the Constitution of this State, there can only be one assessment of property for all purposes of taxation — State, county, municipal and school. Hays v. Missouri Pac. Rd. Co., 159 Ark. 101. The effect of the judgment of the Federal court therefore was to compel the assessing officers to assess all the property in the county at full valuation, in the mode provided by the laws of the State; that is to say, by a single valuation for all taxation purposes. It must be noted, then, that tlie valuation made by the assessing officers did not conform to the judgment of tlie Federal court in assessing at a full valuation, nor in conformity with the laws of the State, as declared by this court, in making such an assessment as would be in uniformity with the assessments of property in other counties. The assessing officers followed neither direction, but made two separate valuations for taxation purposes, which was, according to our decision in the Hays case, stopra, unauthorized by law. Are the taxpayers bound by such an assessment? They are bound by an assessment made in accordance with the adjudication of a court having jurisdiction, in an action against the assessing officers, for the reason that they are held to be privies to the action, as being represented by the assessing officers inn a matter in which the taxpayers are necessarily interested. Ashton v. Rochester, 133 N. Y. 187, 105 Am. St. Rep. (note) 213; 2 Vanfleet on Former Adjudication, 1153. They are not bound by an assessment not authorized either by the judgment of the court or by the laws of the State. The assessing officers may be held to be in contempt of court for failure to make the assessment in accordance with the judgment of the court, but the taxpayers cannot be held to compliance with the judgment unless the assessment be made in accordance therewith; they are only bound by an assessment made in accordance with the judgment. The taxpayers cannot be held to pay until there has been a valid assessment of taxes in accordance with law, or unless there is other statutory authority for collecting the tax without a previous valid' assessment. It is contended by counsel for plaintiff that, if it be conceded that the assessment was not made in accordance with the direction of the Federal court judgment, the effect was merely to relieve the taxpayers from a portion of tlie tax which would have been imposed by a full valuation assessment by omitting the full valuation from the taxes for State, municipal and school purposes, and that they cannot complain of this reduction. Counsel rely on the decision of this court in the recent case of Summers v. Brown, 157 Ark. 509. That decision does not, however, have the application here that counsel contend for. In that case there had been a valid assessment for all purposes, and the clerk, following the erroneous direction of the equalization board and the county court, reduced the taxes to one-half of the amount originally assessed. We held that the reduction was void, but that the taxpayer could not complain and escape payment of the amount of taxes extended against his property. In the present case there has been no valid assessment, either under the direction of the Federal court judgment or the laws of the State; therefore the taxpayers are not bound by the illegal assessment.

.It is further contended by counsel for the plaintiff that these actions were brought under the statute (Crawford & Moses’ Digest, § 10204 et seq.) authorizing suits in equity to be brought against corporations for the collection of overdue taxes, and that there should be a recovery in accordance' with the valuation directed by the Federal court judgment, even though it be found that the assessment was not in accordance with the - judgment. The courts of the State are not bound to that extent by the judgments of the Federal court. Under the statute referred to, the courts are authorized and empowered to adjudicate and enforce collection of delinquent taxes which are authorized by the laws of the State — not those merely directed by the judgment of another court.

Each of the defendants in these cases has offered to pay, at the outset, the amount due upon its property in accordance with the Constitution and laws of this State, and they cannot be compelled, under the statute referred to above, to pay more than that merely because there has been an adjudication of another court. The chancery court, awarded the plaintiff a decree against each of the defendants for those amounts.

Courts of equity, under the statute referred to. are authorized to enforce only the taxation laws of this State as interpreted by the Supreme Court of this State. The Federal court did not determine the amount that each taxpayer was to pay, but adjudged that there should be an assessment by the assessing officers at a full valuation, and, as before stated, this was not done.

Finally, it is contended that the court erred in refusing to adjudge a penalty, interest and costs on the defendants on account of their failure to make thoir tender good, but that contention is not sound, for the reason that the tender was refused. Each of the defendants pleaded a tender of the proper amount, which was, in effect, a continuing offer to pay that amount.

Before closing the discussion, reference should be made to the fact that the State Tax Commission did not, in fact, change its assessment of railroad property for the year 1921 and raise it to a full-value assessment. There was correspondence between the assessor and the secretary of the Tax Commission, in which the latter expressed his individual opinion as to what the assessor should do, but there does not appear in the record any order of the Tax Commission raising the assessment on railroad property to full valuation. This affords additional reason why there can be no recovery of taxes for the year 1921 on a full-valuation basis. It is unimportant, however, since we hold, for the reasons herein-before stated, that there can be no recovery for the taxes for either year on a full-valuation basis.

The decree is therefore affirmed.

Hart, J.,

(dissenting). Judge Humphreys and myself think that the opinion of the chancellor, that the judgment of the Federal court awarding the writ of mandamus was void, is correct, and for that reason the decree of the chancery court should be affirmed.

The full faith and credit clause of the Constitution of the United States was intended to give conclusive effect to judgments of all the States, so as to promote uniformity as well as certainty in the rule among them. 2 Story on the Constitution, 5 ed., § 1307.

The opinion of the majority tends to place assessing officers between two fires by subjecting them to contradictory orders, and impedes rather than promotes uniformity and certainty in judgments of courts sitting in the same State. The only excuse for levying and collecting the taxes in question is for the support of the State and county governments.

The confusion which might result from the majority opinion is calculated to interfere with the administration of the government of the State. To illustrate: The writ of mandamus was awarded in the Federal court on a judgment by default in favor of the holders of county warrants against the assessing officers. This might or might not have been the result of an agreement between the parties to the suit. Suppose a similar suit had been filed in the State court by the holders of other county warrants, and, upon the intervention of taxpayers, the case had been transferred to equity, and a decree obtained enjoining the assessing officers from making any such assessment. Then the order awarding the writ of mandamus in the Federal court would command the assessor to do the very thing which, by the injunction, he was forbidden to do. He would be guilty of contempt of court in failing to obey the order of whichever court he failed to obey. Thus we would have two courts sitting in the same State, deciding the same rights, arising in the same way, under the same provision of the Constitution, with directly opposite results. This court has already construed the clause of our Constitution in question directly opposite to the construction placed upon it by the Federal Court of Appeals, which was followed by the Federal District Court in .awarding the writ of mandamus.

It is not pretended that the construction we have placed upon the sections of our Constitution is in conflict with the Constitution of the United States. It is well settled that to the highest court of a State belongs the right to construe its own statutes and Constitution, except where they may conflict with the Constitution of the United States. Nor is it denied that, where such a construction has been given by a State court, the Supreme Court of the United States is bound to follow it.

The power to assess property for State and county purposes is derived solely from the Constitution and statutes of a State; and the authority is limited or restricted by the construction of the State Supreme Court of its own Constitution and statutes.

If the Federal courts can, under proper circumstances, issue their writs of mandamus for the purpose of compelling the assessor to assess property, it is evident that the State courts have as full and complete jurisdiction in the matter as the Federal courts possess. Suppose that a State court had issued its injunction, after due course of legal proceedings begun by holders of county warrants, and that the Federal court had issued its writ of mandamus at the instance of the holders of other warrants, the principle that, in cases of concurrent jurisdiction between State and Federal courts, the court which first acquires jurisdiction shall have the exclusive right to decide the matter .in issue, could not apply. The reason is that, although the defendants in the two suits are the same, the plaintiffs would be different persons, seeking to enforce distinct and separate rights. They could in no sense be said to be in privity with each other because each of them was the holder of warrants of the same county.

Therefore we believe that the Federal court had no jurisdiction to issue a writ of mandamus to compel the assessing officers to assess property in defiance of a construction of this court of the Constitution and statute, under which alone they had power to act.


source: Caselaw Access Project

author: Smiti-i, J.

license: Public Domain

text:
    Smith v. State.
    Opinion delivered February 11, 1924.
    1. Larceny-^sufficiency of evidence. — In a prosecution for larceny, evidence held to sustain a conviction.
    2. Criminal law — evidence.—In a prosecution for larceny of •automobile casings, testimony of a police officer who arrested another person in possession of the alleged stolen property, that he found among the stolen articles a raincoat which had also been stolen, was admissible, though defendant was not present at the time of the arrest and discovery of the stolen property; all of the stolen articles being found together, and there being evidence to connect defendant with the theft of the articles described in the indictment.
    3. Witnesses — cross-examination.—It was proper to permit a witness to be cross-examined as to whether he had been employed as a messenger to deliver a communication of an unlawful cnaracter, such testimony being admissible to show the morai character of the witness.
    4. Criminal law — irrelevant evidence.- — In a prosecution for larceny of automobile casings, where there was testimony that the defendant, at the time of the commission of the crime, was seen riding in a stolen automobile with a person who was subsequently arrested while in the possession of the stolen casings, and defend- ' ant testified that such person borrowed money from him for the purpose of buying some casings, exclusion of evidence that a certain person had cashed a check for the defendant on the date of the crime was not error.
    5. Witnesses — impeachment on cross-examination. — In a prosecution for larceny, cross-examination of defendant as to whether he had not been convicted of making whiskey was proper, as it is competent to ask a witness touching his recent residence, occupation and associations, as bearing upon his credibility.
    6. Criminal law — instruction singling out defendant’s testimony. — It was not error to refuse an instruction on the weight of the' testimony which singled out the defendant’s testimony, other general instructions given having covered the general subject.
    7. Criminal law — discretion as to reopening case. — In a prosecution for larceny, in which defendant, claiming an alibi, was permitted tq prove by a witness that defendant had registered in his hotel the night of the larceny, and the prosecuting attorney argued that if the defendant had registered at such hotel a register showing that fact would have been produced, refusal of the court to recall the jury, while deliberating, to permit the defendant to introduce the register was not an abuse of discretion.

      Appeal from Polk Circuit Court; B. E. Isbell, Judge;
    affirmed.

      Norwood & Alley, for appellant.

      J. 8. Utley, Attorney General, and JoJm L. Garter, Assistant, for appellee.
   Smiti-i, J.

Appellant was convicted under- an indictment .charging him with larceny of some automobile casings, and has appealed.

The first assignment of error is that the testimony is insufficient to support the verdict. The casings were owned by O. L. Lawrence, who testified that he was living-near Mena, on the Big Pork road, in October, 1922, and that three casings,- some inner -tubes, some tools and a jack, of the value of $40, were stolen from his garage, and that, the next morning after they were stolen, he examined the tracks which were made by the parties who took them; that one of the persons wore tennis shoes, and that the other man made a large track. That he notified Mr. Hazel, the constable and deputy sheriff, who came to his house, and they together followed the tracks to the place where the thieves got in an automobile, and they tracked the car from there, through a lane, to the highway. The track of the car was examined, Measured, and followed to Big Cedar, Oklahoma. They came to a place where the car passed through a gate, which was opened bv the man wearing the tennis shoes, as that track led from the car to the gate. The track was compared with the first tracks seen, and was believed to be the same. The track of the car was followed to -the home of a Mr. Anders, who is appellant’s'father-in-law, and the car which made the tracks was found at Anders ’ house. There they discovered the casings and the other stolen articles, and a pair of tennis shoes, which were found to fit the tracks made at the place where the casings were stolen, and, upon comparison with the tracks made by appellant after his arrest, appeared to be identical. The car was identified as one belonging to Dr. Hilton. The larceny occurred, about October 4. Hazel substantially corroborated this testimony. Appellant was not at the house when Lawrence and Hazel arrived there, but word was left for appellant to come to Mena, and this he voluntarily did. One Hughen was present when the stolen articles were found, and he was arrested by Hazel.

Hungate, a deputy sheriff and the chief of police of Mena, testified that he remembered the night the casings were stolen from Mr. Lawrence, and he saw Hughen and appellant the night the casings were stolen, that they had a flat casing, and asked if he knew where they could get a patch for it; that he furnished them a patch, and they repaired the casing, after which they drove out of Mena, going in the direction of Lawrence’s home; that when he next saw the car they were driving he recognized it as Dr. Hilton’s car, and he heard appellant say they had traded for it near Womble, but he did not hear appellant make any statement about the casings.

Two other witnesses saw appellant and Hughen in an automobile in Mena about 9 p. m. Dr. Hilton testified, and identified the car as being his. We think the testimony was sufficient to support the verdict.

Hazel was permitted to testify, over appellant’s objection, that, when he arrested Hughen and took possession of the car, he found among other stolen articles a raincoat which had been stolen from Dr. Hilton in July, 1922. This testimony was objected to on the ground that appellant was not present at the time, and it is insisted that the admission of this testimony offends against the rule that the commission of the offense charged cannot be proved by evidence of the commission of another offense, unless the two offenses are so connected as to form parts of one entire transaction. ■ We do not think the 'objection was well taken, for the stolen goods were found together, and it was a proper part of the officer’s narrative to tell what he had found.

Appellant attempted to prove an alibi, and Fred Anderson gave testimony in support thereof. Hpon his cross-examination Anderson was asked if he had not been employed as a messenger in a communication of an unlawful character, but the court sustained an objection thereto. It is insisted that error was committed in asking the question, although the objection was sustained. We do not think so. The objection was sustained, but we think no error would have been committed, had the question been answered, as it tended to show the moral character of the witness.

It was proved by the testimony on the part of the State that Hughen had the stolen casing's in his possession when appellant rode in the car with him from Mena to Anders’ home, as a circumstance to show appellant’s connection with the commission of the larceny of the casings. Appellant testified that Hughen had borrowed money from him for the purpose of buying some casings, and he offered to show that one Wood had cashed a check for him on the day the things were stolen. No error was committed in the exclusion of this testimony. It was self-serving, and was irrelevant, as appellant may not have loaned the money to Hughen, even though Wood cashed his check. Wood did not offer to testify that appellant loaned Hughen any part of the proceeds.

Error is assigned in permitting appellant to be asked about making whiskey, and he was asked if he had not been convicted of making whiskey. No error was committed in permitting this examination, as it is competent to ask a witness touching- his recent residence, occupation and associations, as bearing upon his credibility.

Objection was made to instruction numbered 5, which dealt with the appellant’s defense of an alibi. It is substantially the instruction which was first approved by this court in the case of Ware v. State, 59 Ark. 379, and which has since been several times held not to be prejudicial.

Appellant asked an instruction numbered 4, which told the jury how to weigh and consider his testimony, and an exception was saved to the refusal of the court to give it. It is substantially or, in effect, the instruction which, we have discussed in the cases of Denton v. State, 131 Ark. 1, and Davis v. State, 150 Ark. 500. In those cases the instruction was given over the objection and exception of the accused. We held the instruction was improper as tending to single out the testimony of the accused, but that it was not prejudicial error to give it. We said the testimony of the accused should be weighed and considered as that of other witnesses, it being proper, of course, for the jury to- consider the interest of the accused in the result of the trial, but that the better practice would be not to call attention to- the fact that appellant had a special interest in the case which might tend to color his testimony. Other instructions dealt with the manner of weighing testimony of the witnesses generally, and we think no error was committed in refusing to give this instruction numbered 4.

Witness Dickson testified that he ran a hotel at Mena, and that appellant registered at his hotel and was assigned a room on the night the larceny was- committed. Objection was made to -this question by the prosecuting attorney, upon the ground that the hotel register was the best evidence of the fact. The court overruled the objection, and counsel for appellant stated the register could and would be produced if this were required, but the. court permitted Dickson to testify without producing the register. In his closing argument to the jury the prosecuting attorney argued that appellant was not registered at the hotel, and that, if he had in fact done so, the register showing that fact would have been produced. After the case had been submitted to the jury, and while the jury was considering its verdict, the register was produced, and appellant asked that the jury be recalled, and that he be allowed to introduce it. The objection made was not to the argument itself, but to the refusal of the court to recall the jury. We think no error was committed in the ruling made. It was a matter within the discretion of the court, and we think no abuse of the discretion appeared. If it was thought proper to corroborate the testimony of the landlord by the production of the register, this could and should have been done as a part of the witness’ original testimony.

.Other errors are assigned, but they raise no question which we think requires discussion.

No error appears, and the judgment is affirmed.


author: Humphreys, J.

text:
    Bish v. Woods.
    Opinion delivered February 11, 1924.
    1. Malicious prosecution — advice op counsel as defense. — Where defendant told his attorneys that his -tenants, the plaintiffs, had sold cotton belonging to him and indorsed his name with theirs to the checks received in payment, and prosecuted them for forgery on the advice of such attorneys, his failure to tell the attorneys that plaintiffs had deposited defendant’s share of the proceeds to his account negatived the defense, in an action for malicious presecution, that he had acted on the advice of counsel.
    2. Appeal and error — insufficiency of abstract. — Where appellant failed to set out in his abstract all the instructions given and refused, the case will not be reversed for failure to give requested instructions.
    3. Appeal and error — question not raised below. — Defendant’s objection that in entering judgment against him the court disregarded verdicts in his favor on counterclaims could not be first raised on appeal.
    Appeal from Mississippi Circuit Court,* Chickasawba District; W. W. Bandy, Judge;
    affirmed.

      R. A. Nelson, for appellant.

      T. J. Grotvder, for appellee.
   Humphreys, J.

In stating this case the court will adopt the statement in the main furnished by learned counsel for appellant, making only slight changes therein and a few additions thereto.

During- the year 1922 the appellees, Luther Owens and Clyde Woods, made share crops on the land of appellant, O. M. Bish. Some time in November, 1922, each tenant took his last bale of cotton to Manila. Arkansas, and sold it, receiving each two checks, made payable. respectively, two to Wood & Bish and two to Owens & Bish, the cheeks being for the cotton and rebate upon the seed. Each tenant owed the landlord a balance for the money and supplies furnished them for making and gathering their crops.. Woods owed $13.25, and Owens owed $12.30. Each of the above accounts were due the appellant, in addition to his half of the crop.

Woods and Owens each cashed the two checks received for their last load of cotton and rebate upon seed, by indorsing upon the back of each check the names “Wood & Bish” and “Owens & Bish,” and each left in the Bank of Manila the half of each check belonging to Mr. Bish as landlord, but neither left the money in the bank nor paid to Mr. Bish the balance they owed him for the money and supplies. Mr. Bish denied that his half of the money was placed in the bank to his credit, or that he had any' information that it was. Testimony was introduced by appellees tending to show that the bank immediately notified Mr. Bish that one-half of the amount had been placed to his credit, and that, before the prosecutions were begun, he was notified in person by a bank official of that fact. On November 14, 1922, John T. Bat+en, the regular deputy prosecuting attorney for the Ohickasawba District of Mississippi County, filed information against Clyde Woods and Luther Owens, charging each of them with having committed a felony by forging the name “Bish” to the check, with the felonious intent to cheat and defraud said Bish out of the value of one-half of said checks. Upon the information filed by the deputy prosecuting attornev, warrants of arrest were issued bv Ed Walker, justice of the peace, the appellees arrested, arraigned before the justice of the peace, and on November 23,1922, each was dismissed.

On December 23, 1922, each filed a suit against O. M. Bish, asking damages in the sum of $5,000 each for malicious prosecution, alleging that Mr. Bish wilfullv, maliciously and without probable cause procured and caused their prosecution upon the information filed by the prosecuting attorney.

To each of the complaints the defendant filed his answer, denying that he wilfully, maliciously and without probable cause procured or .caused the arrest or prosecution of the appellees, and offered the additional defense that he acted upon advice of counsel learned in the law, after laying all of the material facts before him. He also filed a cross-complaint, asking a judgment against appellees for the amount due him for money and supplies furnished.

On January 24, 1923, the causes being consolidated No. 1955, were submitted to a jury, upon the testimony of witnesses, instructions of the court and argument of counsel, which resulted in the following verdicts, to-wit: “We, the jury, find for the plaintiff, Clyde Woods, in the sum of one hundred dollars. R. L. Knight, foreman. ” “We, the jury, find for the plaintiff, Luther Owens, in the sum of one hundred dollars. R. L. Knight, foreman. ’ ’ “We, the jury, find for the defendant on his cross-complaint as against Woods in the sum of $13.25, with interest at ten per cent, from maturity. R. L. Knight, foreman. ” “We, the jury, find for the defendant on his cross-complaint as against Owens in the sum of $12.30. R. L. Knight, foreman.”

Thereupon the court rendered separate judgments against the defendant for $100 each.

John T. Batten testified that he filed the affidavit and procured the warrants against appellees upon information received from appellant, to the effect that appellees had signed the checks without his authority, and had failed to pay him the one-half due for rent or the amount due for advances.

W. D. Grravette, an attorney from whom appellant sought advice, testified that he advised him that appellees were guilty of forgery, based upon the statement that they had signed checks without authority and had deposited one-half the amount to his credit, but had failed to pay the advances he had made to them.

Appellant himself testified that he did not tell either Batten or G-ravette that appellant had deposited one-half of the proceeds from the checks to his credit in the bank. He also testified that he never mentioned the matter to appellees, although they lived across the road from him.

Appellant contends for a reversal of the judgment upon the ground that he instituted the prosecution in good faith, under the advice of counsel, and for that reason was exempt from actions for malicious prosecution. In support of this contention he cites the case of Price Mercantile Co. v. Cuilla, 100 Ark. 316, and Laster v. Bragg, 107 Ark. 74, in which the following doctrine was announced: “When a party lays all the facts before counsel before beginning a prosecution, and acts bona fide upon the opinion given by such counsel, though that opinion is erroneous and unwarranted, he is not liable to an action-.for malicious prosecution.” The answer to this contention is- that the evidence did not show that appellant laid all the facts in his possession before the lawyers from whom he sought the advice he followed. The proof tended to show that he knew appellees had deposited one-half the proceeds of the checks to his credit, and he testified himself that he did not communicate this fact to either lawyer.-

Appellant also contends for a reversal of the judgment because the court refused to give a number of instructions reouested by him. He has failed to set out all the instructions given and refused in his abstract and brief, so we are unable to determine whether any material issue raised in the trial of the cause was not covered by correct instructions.

Annellant also contends for a reversal of the judgrrnp-nf because the undisputed facts conform to instruction No. 6. given hv the court, and that the law as given, when applied to the undisputed facts, entitled him to a verdict and. judgment. Instruction No. 6 given by the court is as follows: “And in regard to this cheek, the court will further tell you that if, in consulting the attorneys about what crime had been committed, if any, by the plaintiffs in indorsing this check, if the defendant told the attorneys that this check had been written out in this way, payable to Wood & Bish, and the prosecuting attorney, or Mr. Gravette either one, advised the defendant that the signing or indorsing the check by Mr. Wood or Owens, under these circumstances, would be forgery, although in fact it was not forgery, still if the defendant was so advised by either one of these attorneys, that still would be a complete defense to this action. ’ ’

This instruction was too favorable to appellant. It ignored the provision in the law requiring one to acquaint counsel from whom he seeks advice with all the facts in his possession before he can claim exemption from the action for malicious prosecution.

Lastly, appellant insists upon a reversal of the judgments because, in rendering them, no account was taken of the verdicts upon the counterclaim for advances. The judgments were entered without objection. The attention of the trial court should have been called to this fact at the time the judgments were rendered. This question cannot be raised upon appeal for the, first time.

No error appearing, the judgments are affirmed.


text:
    Marvell Light & Ice Company v. General Electric Company.
    Opinion delivered February 11, 1924.
    Damages — anticipated profits of a new business. — The anticipated profits of a new business are too remote, speculative and uncertain to support a judgment for their loss.
    Appeal from Phillips Circuit Court; J. M. Jackson. Judge;
    affirmed.

      Bevens & Munclt, for appellant.
    The demurrer should have been overruled. It was a general demurrer raising only the question that the counterclaim did not state facts sufficient to constitute a cause of action. A complaint will not be set aside on demurrer, unless it be so fatally defective that, taking all the facts to be admitted, the court can say they furnished no cause of action whatever. 159 Ark. 31. If a cause of action can reasonably be inferred from the allegations. of the complaint, it is not subject to general demurrer. 93 Ark. 371. The proper mode of correction is by motion to make more definite and certain. 91 Ark. 400; 75 Ark. 64; 6 Ency. PI. & Pr. 350; 31 Cyc. 289; 122 Ark. 141; 96 Ark. 163. Loss of profits as an element of damage has been approved by this court. 72 Ark. 275; 104 Ark. 215; 74 Ark. 358. Full notice was given prior to the making of the contract that damages would result from delay. Wherp one is prevented from performing a contract by the fault of another, he is entitled to recover the profits which the evidence makes it reasonably certain he would have made had the contract been carried out. 105 Ark. 421; 97 Ark. 522; 95 Ark. 363.
    No brief for appellee.
   Humphreys, J.

Appellee'instituted suit in the circuit court of Phillips County against appellants, to recover $735.99 for machinery which it sold and delivered to them, to be used in the construction of'an ice plant.

Appellants filed an answer, admitting the purchase of the machinery and the -correctness of the claim, but, by way of counterclaim, alleged special damages of $1,000 in lost profits on account of delay in delivering said machinery. The counterclaim is as follows:

“Further answering, and by way of counterclaim, the defendants charge and allege that on the 28th day of August, 1919, they entered into a contract with the plaintiff for the purchase of the machinery for the purchase price of which the plaintiff now sues. That, under the terms of said -contract, delivery of said machinery so purchased was to be made to the defendants on or before December 1, 1919. That, prior to the time of making said contract, the plaintiff was notified by the defendants of the purposes for which said machinery was bought, to-wit, to run an ice factory, and the reason why delivery by the said contract date was necessary and of the special damages which would ensue to defendants in event plaintiff should breach said contract by failing to deliver said machinery on or before December 1, 1919, as aforesaid. That plaintiff, with full notice and knowledge, as aforesaid, of the special damages resulting to defendants for failure to deliver said machinery on the contract date aforesaid, and after an implied promise of plaintiff to defendants to assume liability for said special damages, the plaintiff wantonly, and without reason or valid excuse, breached said contract by delaying shipment of said machinery, so that the, same, instead of reaching defendants on December 1, 1919, did not reach defendant until the 13th flay of May, 1920. By reason of said breach of said -contract the defendants were thus delayed in placing their ice factory in operation, and their loss in profits of said business by reason of plaintiff’s said breach of contract was the sum of $1,000.
“Wherefore, defendant prays judgment for its said damages in the sum of $1,000, with interest thereon at the legal rate from December 1, 1919, until date of judgment.”

A demurrer was filed and sustained to the counterclaim, and, upon refusal of appellants to plead further, a judgment was rendered against them, from which is this appeal.

Insistence is made by appellants that the counterclaim stated a cause of action, and the trial court committed reversible error in sustaining the demurrer thereto. Loss of expected profits in the ice business is made the basis of the counterclaim. It does not appear, bv allegation or reasonable inference, that the manufacture and sale of icé by appellants was an established business, so that proof of the amount lost on account of 'the delay in delivering the machinery might be made with reasonable certainty. The anticipated profits of the new business are too remote, speculative, and uncertain to support a judgment for their loss. In the case of Midland Valley Bd. Co. v. Hoffman Coal Co., 91 Ark. 180, this court quoted with approval the following language from Central Coal & Coke Co. v. Hartman, 49 C. C. A. 244: “He who is prevented from embarking in a new business can recover no profits, because there are not provable data of past business from which the fact that anticipated profits might have been realized can be legally deduced.”

The counterclaim was therefore defective and subject to demurrer, because it failed to contain ihe necessary allegation that the ice business, which was delayed, was an old or long established business.

No error.appearing, the judgment is affirmed.


author: McCulloch, C. J.

text:
    Southern Lumber Company v. Hampton.
    Opinion delivered February 18, 1924.
    1. Reformation of instruments — burden of proof of fraud.— To authorize the reformation of a deed for fraudulent representation or concealment, the fraud must be proved by evidence that is not merely preponderating, but is^ clear and convincing.
    2. Logs and logging — expeditious removal of timber. — A stipulation in a .timber deed to one who could have removed the timber within a year or two, that the grantee shall cut and remove it as expeditiously as possible, requires expeditious removal of the timber, though the contract further provides “that, unless it (he) shall have removed all the same within a period of 21 years from the date hereof,” he shall pay the taxes assessed against the land.
    Appeal from Bradley Chancery Court; E. Q. Hammock, Chancellor;
    affirmed.

      Fred L. Purcell, for appellant.

      This court recognizes the principle that what was in the mind of the parties at the time the timber deed was executed will be considered in construing what is known as the “expeditious clause” of such a deed. 178 S. W. (Ark.) 304. A careful reading of appellant’s testimony clearly indicates that she intended to convey the timber for a definite number of years, to-wit, 21 years; that Sharp would have to sell it to Southern Lumber Company, or one of the big companies, and that they would not take it for less than 21 years.

      B. L. Beasley, for appellee.
    For construction of timber deeds with reference to the expeditious clause, and the duty of the grantees thereunder, see 99 Ark. 112; 116 Ark. 393; 120 Ark. 105; 111 Ark. 253. The time for removing the timber under this clause must be determined by the facts and circumstances existing at,the time of the purchase, and the ability and effort to remove on the part of the original purchaser, and not that of any subsequent grantee. 1120 Ark. 105; 105 Ark. 455. The court’s decree should stand, unless it is clearly against the preponderance of the evidence.
   McCulloch, C. J.

The plaintiffs, Nancy Hampton and Peter Rogers, are the owners of a tract of land in Bradley County, containing 120 acres, and on May 3, 1909, Nancy Hampton, being then the owner of the land, executed to T. J. Sharp a deed conveying to Sharp the ■pine timber on said land of certain maximum dimensions, $1,000 cash in hand paid being the consideration. The timber deed contained the following stipulation:

“The party of the second part shall cut and remove the timber as expeditiously as possible, and it is ag-reed that, unless it shall have removed all the same within a period of twenty-one years from the date hereof, he shall become responsible for and pay to the first party the full amount of taxes assessed against said land after the expiration of said period of twenty-one years from this date, until such time as said timber is removed and said possession returned to said first party.”

On June 8, 1909, Sharp conveyed the timber to the defendant, Southern Lumber Company, a corporation, then, as now, being engaged in the lumber business and operating a mill in Bradley Couxxty. The -timber deed from Sharp to the defendant was identical in form with the deed from Nancy Hampton to Sharp, the only difference being the amount of consideration paid. None of the timber had been cut or removed from the land, either by Sharp or the defendant, and this action was instituted by the plaintiffs against the defendant, in the chancery court of Bradley County, to cancel the timber deed as a cloud on the title, it being alleged and contended that defendant failed to expeditiously cut and remove the timber, as required by the terms of the conveyance. It is also alleged in the complaint that the execution of the deed was obtained from Nancy Hampton by fraud and misrepresentation and concealment concerning the stipulation in the deed as to the maximum time within which the timber might be cut. It is alleged that the agreement between the parties was that the timber should be removed within three years, and that it was surreptitiously widtten in the deed that the maximum time should be twenty-one years, and that this was concealed from Nancy Hampton when she signed the deed; that she was an ignorant -colored woman, and could neither read nor write.

The case was heard upon testimony which was brought into the record, and the chancellor found in favor of the plaintiffs, and entered a decree canceling the timber deed, on the ground that the timber had not been removed in accordance with the stipulation in the conveyance. The defexidant, Southern Lumber Compaxxy, has appealed.

The plaintiffs have failed to prove, to a satisfactory deg’ree, that the deed was procured either by misrepresentation or concealmexit, and the cause of action in that regard must fail. The effect of the contention was to ask for a reformation of the deed on account of fraud. and this must be proved by evidence which is not merely preponderating' bnt which is clear and convincing’. Welch v. Welch, 132 Ark. 227.

The rights of the parties must therefore be tested in accordance with the language of the timber deed.

This court has held in numerous cases that a stipule tion in a timber deed identical in form and substance with the one now under consideration requires the expeditious removal of the timber, notwithstanding the maximum length of time mentioned for such removal. Earl v. Harris, 99 Ark. 112; Yelvington v. Short, 111 Ark. 253; Newton v. Warren Vehicle Stock Co., 116 Ark. 393; Burbridge v. Arkansas Lbr. Co., 118 Ark. 94; Louis Werner Sawmill Co. v. Sessoms, 120 Ark. 105; Hampton Stave Co. v. Elliott, 124 Ark. 574; Polzin v. Beene, 126 Ark. 46. Counsel for defendant concede that such is the settled construction of the terms of the deed in question, but invoke the rule announced in the ease of Burbridge v. Arkansas Lumber Co., supra, that, in determining whether or not the purchaser under such deed has had time to ° expeditiously remove the timber, the fact should be taken into consideration that the purchaser was operating a mill, and owned large bodies of timber land, and was cutting and removing the timber in accordance with a settled plan of operation, and was proceeding to remove the timber as quickly as the practical operation of that plan would admit.

The evidence in the present case establishes, we think, the fact that the defendant, Southern Lumber Company, is operating its mill in accordance with settled plans which would not admit of taking this timber at an earlier period than the present time, and that, in this regard, the facts come within the decision in the Burbridge case, supra. But the distinction in the present case is that the plaintiff did not convey the timber to the Southern Lumber Company, and, on the other hand, conveyed it to Sharp, a single individual, who was not the owner of a mill, and whose circumstances did not fall within the rule announced in the case just cited. In the Burbridge case we applied the same rule to the construction of timber deeds executed to individuals, but it ^as because of the fact that the proof showed that those conveyances were made to persons who were merely procuring them for the lumber company, and that it was understood at the time, by both parties to the conveyances, that the timber was to be removed by the lumber companies, according to their usual method of operation. The testimony in the present case fails to show that it was understood between the parties to the conveyance that the timber was to 'be taken by the defendant in accordance with its customary plan of operation. At least we cannot say that the testimony preponderates against the finding of the chancellor on that question. It is true that Sharp testified' that, in purchasing the timber from Nancy Hampton, he stated to her that, in order for him to pay the price he was giving her for the timber, he must have a long period of time — twenty or twenty-one years — within which to remove the timber, for the reason that he would have to turn the lease over to the lumber company. In other words, his testimony was to the effect that there was an understanding that this timber was to be handled in accordance with the usual plan of operation of the Southern Lumber Company, but this testimony is disputed' by the plaintiffs, and we cannot say that there is a preponderance against the finding of the chancellor. Defendant introduced another witness, Mr. Anders, who was conversant with the details of the trade between Sharp and Nancy Hampton — in fact, he states that he was interested in the purchase as a silent partner, and took the acknowledgment to the deed— and he testified as to those details, saying that there were no misrepresentations or concealment concerning the time, and, when asked the direct question whether or not Nancy Hampton was informed .that the timber was to be taken over by the lumber company, he replied that the only understanding between Nancy Hampton and Sharp was that the latter was to do as he pleased with the timber.

Treating the purchase therefore as one by an individual or concern purchasing timber for general purposes, the evidence shows very plainly that the timber could have been removed at least within a year or two— perhaps in one season. The facts therefore «fall, not within the doctrine announced in the Burbridge case, supra, but rather within the other cases cited above, and especially within the decision of this court in the case of Polzin v. Beene, supra.

Decree affirmed.

Hart, J., dissents; Humphreys, J., not participating.


text:
    Ford v. Plum Bayou Road Improvement District.
    Opinion delivered February 18, 1924.
    1... Statutes — clerical error in enrolled bill. — Clerical mistakes •? in the enrolled copy of a bill signed by the Governor, by erroneous additions, omissions or misprisions, do not invalidate the . act. So held where the enrolled bill .signed by the Governor, by a clerical misprision, omitted three half sections of land described in the engrossed bill.
    2. Statutes — presumption of regularity of enactment. — The presumption of the correctness and regularity of the proceedings of the Legislature on file in the office of the Secretary of State may be overcome only by clear and decisive proof, and the mere fact that the engrossed copy of a bill bears evidence on its face of having been taken apart, was insufficient to impeach its integrity, even in connection with oral testimony as to changes having been made.
    3. Highways — reasonableness of assessments. — In a proceeding attacking the validity of an assessment for road improvement, where the testimony as to the reasonableness of the assessment was conflicting, the finding of the board of commissioners and the chancellor that the assessments were reasonable will not be. disturbed, as the question of benefits is largely a matter of opinion.
    4. Highways — zone system of benefits. — The adoption of the zone system in assessing the benefits from a road improvement district for construction of roads does not render the assessment invalid, unless it is shown in a direct attack that it is- excessive or discriminatory.

      Appeal from Jefferson Chancery Court; John M. Elliott, Chancellor;
    affirmed.

      E. T. Wooldridge, for appellants.
    1. The enrolled bill, though not conclusive of what bill the Legislature passed, is, none the less, the best evidence. It is more authentic and should govern, unless it clearly appears that the wording of it is due to some mistake of the enrolling clerk; and the burden was on the district in this case to show such mistake. 142 Ark. 73. The district is void under the enrolled bill because of the gap in the district of half a mile in the south half of sections 1, 2 and 3, township 3 south, range 10’ west.' 130 Ark. 70; 139 Ark. 574; 143 Ark. 83. The testimony of a representative in the Legislature as to what was intended by an amendment to a bill is not admissible. 66 Ark. 466; 76 Ark. 197; 109 Ark. 556, 563. The. courts have no power to legislate, but only to construe. If the language of an act is plain and unambiguous, no room is left for construction. S9 Ark. 513; 35 Ark. 56; 11 Ark. 44; 110 Ark. 99, 103. 2. The published act is void because it was never passed by the Legislature, nor signed by the Governor.

      Coleman & Gantt, for appellees.
    1. The act creating the district is valid. 142 Ark. 454; 135 Ark. 330. If the amendment made by the Senate related to lands in township 4 south, range 10 west, and that appears from the evidence to be true, it follows that the bill passed the Senate just as it has been published by the Secretary of State. On March 6 it was returned to the House, where the Senate amendment was concurred in. That completed the passage of the act. 130 Ark. 272; 110 Ark. 269; 61 Ark. 226.
    2. With reference to the contention that the published act is void because the Governor did not sign it, which was due to an error of the enrolling clerk, the same is presented as in the case of Rice v. Road Improvement District, 142 Ark. 454, 459, which fully refutes that contention. See also 135 Ark. 330; 110 Ark. 269; 130 Ark. 503. This court has never followed the English rule that the enrolled bill is conclusive. On the contrary, it adheres to the doctrine that the courts may look beyond the enrolled bill to the legislative journals, and that, where the intention of the Legislature is clear, errors may be disregarded. 19 Ark. 250; 103 Ark. 109; 34 Ark. 263, 269; 40 Ark. 200; 110 Ark. 274; 44 Ark. 536.
    3. Under the act creating the district, the commissioners were required to assess the value of benefits to accrue to each tract of land by reason of the improvement. It was open to the assessors to adopt any method which, in their judgment, reached the true measure of benefits, i. e., the effect of the proposed improvement upon the market value of the lands.* 86 Ark. 1; 1 Pag’e & Jones on Taxation by Assessment, § 11; 139 Ark. 322; 59 Ark. 536; 64 Ark. 258. The question is not the distribution of the cost over the lands in the district, but the extent to which the lands will be benefited by making the improvement. 86 Ark. 1; 122 Ark. 326. The cost of the proposed improvement was to be considered in fixing the. total amount of benefits. If the assessors did not assess any land above the amount it would, in their judgment, be benefited, and made their , assessment on an equitable basis, they were within the law; it was not necessary to assess the lands to the full extent they would ibe benefited, unless the cost of the improvement required that to be done. 134 Ark. 315; 122 Ark. 330. The zone system of assessment is not invalid, unless arbitrary and in disregard of actual benefits to accrue. 151 Ark. 484; 137 Ark. 568; 139 Ark. 322; 122 Ark. 326, 334.
   McCulloch, C. J.

The numerous appellants in this case arc each owners of real property within the boundaries of appellee road improvement district, which was created by a special statute enacted by the General Assembly in 1923, Special Acts, 1923, p. 1062. The public road to be improved under the provisions of the statute, and described therein, runs from Sherrill, a town on the line of the St. Louis Southwestern Railway Company, nearly parallel with the railroad, to the town of Tucker, thence west and northwesterly to Plum Bayou, tlience northeasterly to the Lonoke County line. The statute also authorizes the improvement of two short laterals — one northward from the main road to Ferda, a station on the line of the railroad', and another southward from Plum Bayou, on the west end.

The commissioners of the district, after forming plans for the construction of the improvement, proceeded to appraise the behefits to the lands in the district, and, after the same were approved, appellants instituted this action in the chancery court of Jefferson County, attacking the validity of the statute, and also the correctness of the assessment of benefits.

The statute provides that the commissioners of the district, after publishing notices of the time and place of hearing, shall equalize and adjust the assessments, and that their determination shall be final, “unless suit is brought in the Jefferson Chancery Court, within thirty days thereafter, to set aside their finding.” This action was instituted within that time, and therefore constitutes a direct attack upon the validity of the assessments.

The chancellor heard testimony as to the correctness and validity of the -assessment of benefits, as well as on certain phases of the case which related to the validity of the statute itself, and rendered a final decree dismissing the complaint of appellants for want of equity. An appeal has been duly prosecuted to this court.

The validity of the statute is assailed on the ground that there is a material variance between the enrolled copy signed by the Governor and the bill which passed the two houses of the General Assembly, and that, according to the enrolled bill thus signed, there is omitted from the statute three half-sections of land situated in the heart of the district, two of which abut on the main road to be improved, and that this brings the case within the rule announced by this court concerning- the omission of lands which would necessarily be benefited by a proposed improvement. Heinemann v. Sweatt, 130 Ark. 70; Milwee v. Tribble, 139 Ark. 574.

The facts with reference to the enactment and approval of the statute, as shown by the records on file in the office of the Secretary of State, are as follows: The bill for this statute originated in the House of Representatives, and, as introduced and passed by the House, the boundaries of the district included lands (three half-sections described as south half of sections 1 and 2; and, east of river, south half of section 3, in township 3 south, range 10 west), which were omitted from the enrolled bill signed by the Governor. When the bill reached the Senate, it was amended so as to shorten the lateral road running south from Plum Bayou by cutting off of it a distance of one mile, and lands described as the south half of sections 1 and 2, and, east of river, south half of section 3, township 4 south, range 10 west, were excluded from the district. The bill as amended was finally passed by the Senate, and returned to the House, where the amendments were concurred in, and the bill was engrossed. The engrossed bill now on file in the office'of the Secretary of State includes the three tracts described as in township 3 south, range 10 west, and omits the tracts described by corresponding numbers in township 4 south, range 10 west. On the other hand, the enrolled bill signed by the Governor omits the half-sections mentioned as in township 3 south, range 10 west, but includes the half-sections with corresponding numbers in township 4 south, range 10 west. The Secretary of State published the statute in accordance with the boundary descriptions set forth in the engrossed bill, and not in accordance with the description in the enrolled bill. The description in the engrossed bill, which is on file, as before stated, corresponds with the Senate amendments to the original bill.

Appellants attempted to impeach the correctness of the engrossed bill by introducing a witness who testified , that he compared the engrossed bill with the enrolled bill , while the latter was in the hands of the Governor for his approval, and that the boundary descriptions in the engrossed bill at that time corresponded with the descriptions ill the enrolled bill.

There is also testimony to the effect that - the engrossed bill in the office of the Secretary of State bears some evidence of having been taken apart, the marks showing that the brads had been removed and replaced. The effort is to show that the engrossed bill has been changed since it was filed in the office of the Secretary of State.

There is a conflict in the testimony as to the form in which the engrossed bill appeared at the time the enrolled bill was in the hands of the Governor, and as subsequently filed in the office of the Secretary of State.

If there was an error in the enrollment of the bill, it was a clerical one, which is obvious in comparing it with the engrossed bill, the original bill and the Senate amendments as concurred in by the House. This court is committed to the rule that clerical mistakes in the enrolled copy of a bill signed by the Governor, by erroneous additions, omissions or misprisions, do not defeat the validity of the statute. This was first decided in the case of Athletic M. & S. Co. v. Sharp, 135 Ark. 330, and, after full reconsideration of the subject, the court reaffirmed the rule in the case of Rice v. Lonoke-Cabot Road Imp. Dist., 142 Ark. 454. We must therefore treat the question as settled.

The attempt to impeach the correctness and integrity of the engrossed copy of the bill is futile, for the evidence is, we think, insufficient to sustain the attack. There is a presumption in favor of the correctness of the records of the proceedings of the General Assembly remaining on file in the office of the Secretary of State, and alleged mutilation of the records must be shown by something more than a mere preponderance of the testimony. In order to overcome the presumption of the correctness and regularity, proof must be adduced which is clear and decisive. The mere fact that the engrossed copy now bears some evidence on its face of having been taken apart is not at all sufficient to impeach the correctness of the document, even in connection with oral testimony as to changes having been made. In addition to the presumed regularity of the engrossed copy of the bill, there is the added fact that it corresponds with the.original bill and the Senate amendments. Our conclusion is that 'the attack on the validity of the statute is not well founded.

This brings us to a consideration of the attack on the assessment. The commissioners adopted the zone system, and fixed a flat rate of eighteen dollars per acre on lands within one mile of the road to be improved, sixteen dollars per acre on lands one mile and not more than two miles distant, and fourteen dollars per acre on lands more than two miles distant. The territory embraced in the district extends from the east bank of the Arkansas River to the tier of half-sections on an average of two and one-half miles east of the St. Louis Southwestern Railway Company’s line, and from the Lonoke County line south to the northern tier- of sections in township 4 south. The area includes, mostly, alluvial lands in the Arkansas River bottoms, most of which are low and wet, but which have either been drained or are about to be drained by ditches, some of which are quite extensive. There -are also bayous and brakes containing water. The lands are mostly in cultivation, the area containing many large farms, some of the largest of which are owned by some of the appellants.

The witnesses introduced on the question of anticipated benefits from the proposed improvement were quite numerous, and there is great contrariety of opinion. The witnesses introduced by appellants testified that the assessments are unequal, for various reasons given, and that all are in excess of the real anticipated benefits. On the other hand, the witnesses introduced by the district — they are more numerous than those introduced by appellants — all testified that the benefits which the lands in the district will derive from 'the improvements are considerably in excess of the assessments actually made by the commissioners, and that there is no discrimination between the different classes of lands in the district. There is also the same contrariety of opinion with regard to the adoption of the zone system. The commissioners testified that, after carefu.1 consideration of all the elements which they thought might go to make up the question of benefits, they adopted the zone system as one that: is fair and just and will bear equally upon all the property in proportion to benefits. In other words, they testified that, after consideration of all the elements, they reached the conclusion that distance from' the road was a fair method of fixing the benefits. Appellants are more insistent, concerning the lack of uniformity of assessments, in the contention in regard to lands which are distant from the road, and that the road is inaccessible from these lands on account of the character of the soil and the intervention of- bayous, drainage ditches, and other streams of water.

After giving full consideration to all the testimony in the case, we are unable to say that the assessments are erroneous. The question of benefits, like the question of market value, is largely a matter of opinion. All of the witnesses in the case are men who are familiar with the area in question and the character of the land, and appear to be equally intelligent. It is, after all, a question of difference of opinion between the witnesses, and those introduced by the district are more numerous —about double the number introduced by appellant— and they give as good reasons for their opinions as do the witnesses introduced by appellants. In addition to this, we have the findings of the board of commissioners, to whom .the law has primarily committed the duty of appraising the benefits, likewise the finding of the chancellor on all of the testimony which is now before us. We have decided in many cases that the adoption of the zone system does not render an assessment invalid, unless it is shown, in a. direct attack on the assessment, that it is excessive, erroneous or discriminatory. Road Improvement Districts v. Crary, 151 Ark. 484; Davis v. Road Improvement District, ante p. 98.

The following decisions of this court are especially applicable in the disposal of the contention of appellants with respect to the alleged excessiveness of the assessed benefits and discrimination therein; Rogers v. Ark.-La. Highway Imp. Dist., 139 Ark. 322; Wilkinson v. St. Francis Road Imp. Dist., 141 Ark. 164; Reisinger v. Road Imp. Dist., 143 Ark. 341; Hines v. Road Imp. Dist., 145 Ark. 382.

We find no error in the decree, and the same is therefore affirmed.

Hart, J.,

(dissenting). This is a direct attack on the assessment of benefits made within the time prescribed by the statute, and, in the judgment of Judge Wood and myself, practically the undisputed facts show that the zone system, or the frontage rule of assessing benefits, is discriminatory. This case should cause us to pause before a precedent becomes fixed, beyond judicial power to stop the zone system of assessments, where there is a direct attack upon it and the evidence shows that the assessment of benefits, when considered with reference to the configuration and topography of the earth’s surface, makes even an approximation of equality impracticable.

Where the board assesses lands, shown beyond question not to be benefited, in the same proportion as other lands in the same zone, so that the matter could not be one of judgment or a difference of opinion, the inevitable inference is that they have acted upon a mistake of fact or upon an illegal principle of assessment. This is necessarily true, no matter what the commissioners may 'testify as to their opinion of the equality of the assessments.

The undisputed evidence in this case shows that some of the lands are separated from the roads to be improved by bayous, drainage ditches and buckshot lands impassable in wet weather, and that a wide detour, in order to avoid these obstructions, is necessary in going to and from the improved roads. Therefore it is obvious that this should be considered in making the assessments, and that the lands should not be assessed as high as those which are the same distance in a direct line from the improved roads bnt which are not separated from the roads by obstructions, to travel.

These physical facts are shown by the evidence in the record, which, in our judgment, is not disputed. It is true that witnesses for the defendant say that, in their judgment, the benefits are the same; but we think that their testimony in this regard is arbitrary. No fail' and equal assessment of benefits can be made without taking into consideration the drainage, ditches, 'bayous, and other obstructions Avhich necessitate the landowners to go around "them or to bu-ild a bridge across them before they can use the improved road. They are not required to build bridges, at a prohibitive cost, to cross these obstructions, or, if they should be required to do this, this fact should be considered in making the assessment of benefits. Therefore we respectfully dissent.