bunal or body jurisdiction over roads, but [structing and maintaining them, and that they did not see fit to do so. Exclusive jurisdiction in all matters relating to roads was given to the county court. It is the duty of all departments of the government to yield obedience to the Constitution and the duty of the court to enforce obedience thereto. In Sanderson v. Texarkana, 103 Ark. 529, 146 S. W. 105, the court said that the Constitution gave the Legislature power to provide by law for the organization of towns and cities, and that one of the chief objects to be accomplished thereby was to give the municipalities control over the streets and to charge them with the duty to keep and maintain them for public use. When this power was construed in connection with article 7, § 28, of the Constitution giving county courts jurisdiction in all matters relating to roads, it was held that in order to give effect to each provision the municipalities had jurisdiction to keep and maintain the streets and that jurisdiction over the rural highways was confined to the county courts. Again in City of El Dorado v. Union County, 122 Ark. 184, 182 S. W. 899, the doctrine of that case was approved, and the court upheld a division of the road funds between the city and the county. The court said, however, that article 7, § 28, of the Constitution, vests the county courts with exclusive original jurisdiction in all matters relating to roads, and that therefore the Legislature had no power to vest any other tribunal with jurisdiction over the expenditure of the road funds raised under article 16, § 9, the general revenue clause of the Constitution. All the people have the right of passage over public roads. The doctor, the merchant, the lawyer, the sawmill man, the liveryman, and many others, as well as the landowners, are interested in a right of passage over the public roads. they might be laid out, maintained, and preserved as a passageway for the whole people. It was the part of wisdom for the people to vest the control over roads in a tribunal elected by them and responsible and accountable to them. It was never intended that the jurisdiction over the public roads should be vested in commissioners who had the right of perpetual succession in office, and the practical effect of whose right to levy taxes on the adjoining landowners for the construction and maintenance of the public roads should be limited only to the extent that it should not be arbitrary or confiscatory, no matter how oppressive and how burdensome it might prove to be. In speaking of the inherent and indefeasible rights of man in his treatment of this subject, in Hammett v. Philadelphia, supra, Judge Sharswood said: "The dollar which a poor man has earned by the sweat of his brow-the fortune which a rich man has inherited from his ancestorsstand on the same rock, and are surrounded and protected by the same barrier. Invested for comfort and assurance against want in sickness or old age, or cherished as a provision for widow or orphan after he has gone, it is a right which it is despotism to take from him, exby equal and just taxation. It is none the less cept for the necessary purposes of government so if it be the act of the hydra-headed monster, a numerical majority, or that of a single autocrat. It is the solemn duty of the judiciary, under our Constitution, to guard and protect this right of property, as well from indirect attacks under any specious pretext, as from open and palpable invasion." What the learned justice said applies with peculiar force and appropriateness to conditions here now. We cannot close our eyes to the fact that our last Legislature passed The commissioners' system will tend to de- numerous special acts creating road districts stroy uniformity in the upkeep and mainte- to construct, and maintain public roads at nance of the public roads. The conflicting in- the cost of the landowners; and this, too, terests of the various towns and the diver- without any pretense of complying with the gent views of the different sets of commis- constitutional mandate of giving notice of the sioners will inevitably result in an injury to intention to apply for the passage of such the public interests. The system is expensive local bills. Thus, without their having any and impractical. Strife will be engendered voice in the matter at all, a burden of debt between the towns and the county. of many millions of dollars has been placed selfishness of human nature must be reckoned upon the lands of the state for the construcwith. Those owning no lands will be inter- tion and maintenance of a system of roads ested in electing representatives who will (if it can be called a system), which begin noplace the whole burden of the upkeep of where and end nowhere; and the incorporatthe roads upon the landowners upon the pre-ed commissioners have been given the right tense that it is for the betterment of the of perpetual succession in direct conflict with lands. The people to guard against these and our American institutions, as well as the Bill other evils, which might be pointed out, gave of Rights in our Constitution. exclusive original jurisdiction in all matters relating to roads to the county courts to the end that there might be uniformity in con The For these, and many other reasons which might be given, Judge WOOD and the writer respectfully dissent. (220 S.W.) VANHOOK V. WALLACE et al., Com'rs. (No. 303.) (Supreme Court of Arkansas. April 5, 1920.) 1. Highways 90-Improvement district comprising whole county not encroachment on county court. Appeal from Union Chancery Court; Jas. M. Barker, Chancellor. Action by J. T. Vanhook against J. M. Wallace and others, Commissioners. From decree for defendants, plaintiff appeals. Affirmed. Mahony & Mahony and Neill C. Marsh, all of El Dorado, and Mehaffy, Donham & Mehaffy, of Little Rock, for appellant. W. E. Patterson, of El Dorado, for appel Road Laws 1919, No. 127, creating four separate road improvement districts, the combined territory of all comprising the whole of Union county, held not invalid on ground pow-lees. er conferred constitutes encroachment on jurisdiction of the county court because it includes all real estate in county; all roads not having been intended to be made subject-matter of single improvement. McCULLOCH, C. J. The General Assembly of 1919, at the regular session, enacted a statute (Act No. 127 of 1919) creat2. Highways 90-Election under Improve- ing four separate road improvement disment district statute not contestable in ab-tricts, the combined territory of all of them sence of fraud. comprising the whole of Union county, for In the absence of fraud perpetrated to in- the purpose of improving certain roads in fluence the voters in an election to determine the respective districts and maintaining the whether operation of Road Laws 1919, No. 127, same; the territory of each district and the creating four road improvement districts com-road or roads therein to be improved being prising the whole of Union county, should be fully described in the statute. Separate cominvoked, the result is not contestable. missioners were named for each of the dis3. Constitutional law 65-Road improve-tricts and assessments authorized to be levment statute not delegation to electors of leg-ied on the benefits to the lands in each disislative power. Road Laws 1919, No. 127, creating four separate road improvement districts together comprising whole of Union county, held not invalid as amounting to a delegation of legislative power in its submission to the electors of the question of invoking its operation. 4. Highways 90-Improvement statute does not require county court to lay out road, but merely to exercise its discretion. Road Laws 1919, No. 127, creating road improvement districts whose combined territory comprises whole of Union county, providing that, if part of road or roads to be improved has not been laid out as public road, county court shall lay out road in accordance with the general statutes, does not require county court to lay out a road, but is a mere direction to court to exercise discretion when invoked. 5. Highways 90-Statute creating improve ment district not invalid because authorizing maintenance of road. Road Laws 1919, No. 127, creating separate road districts whose combined territory comprises whole of Union county, held not void because providing for maintenance of road authorized to be improved, and continuing the power of the board of commissioners for such purpose. 6. Highways142-Chancery court has no jurisdiction of improvement district assessments unless demonstrably unjust. In view of provision of Road Laws 1919, No. 127, creating a road improvement district, for remedy by appeal from assessments of board, in order to give chancery court jurisdiction it must appear assessments have already been made, and are demonstrably arbitrary and unjust. Wood and Hart, JJ., dissenting. trict accruing by reason of the respective improvements. Appellant owns land in one of the districts and instituted this action challenging the validity of the statute and the proceedings thereunder and praying that the commissioners be enjoined from proceeding with the work of constructing the improvement, issuing bonds, and levying as sessments. The points of attack made in the complaint are very numerous and cover nearly every section of the statute, but we will treat each of the attacks which are not relied on in the briefs as being abandoned and will dispose of only the questions which appear to be relied on by counsel as sustaining their attack on the validity of the statute. [1] It is contended, in the first place, that the power conferred by the statute constitutes an encroachment on the jurisdiction of the county court because all of the real estate in the county is embraced. Learned counsel argue the question as if the turning point in the case is whether or not the improvement of all the roads described in the statute constitutes a single improvement; but it is quite clear that all of the roads were not intended to be made the subject-matter of a single improvement, and this is not the turning point of the case. The road or roads to be improved in each one of the districts created must necessarily constitute a single improvement, but it is equally clear that all of the roads in the combined districts do not constitute a single improvement and were not intended as such. All of the districts are created by one statute, but each is a separate district created for the purpose of For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes improving the road or roads mentioned in attack upon the proceedings is therefore unthat particular district, and the assessments founded. the feature of the statute which submits to the electors of the county the question of invoking the operation of the statute-whether it amounts to a delegation of legislative power, or whether it is merely a submission to the voters of the question of invoking the benefit of the statute. Of course, as a delegation of legislative power it would be void; but we think it falls within that class of cases where the Legislature has declared the law and left it to the interested parties to determine whether or not its benefits shall be invoked. Boyd v. Bryant, 35 Ark. 69, 37 Am. Rep. 6; Nall v. Kelley, 120 Ark. 277, 179 S. W. 486; Fenolio v. Sebastian Bridge District, 133 Ark. 380, 200 S. W. 501. on land in each of the districts are to be [3] This necessarily calls for a mention of based entirely on the benefits accruing from the improvement to be made in that district. If all of the roads in the four districts are to be treated as a single improvement, to be improved and paid for by assessments on all the lands of the district, then the case would fall within the doctrine announced in Road Improvement District No. 1 v. Glover, 89 Ark. 513, 117 S. W. 544, and the case of Swepston v. Avery, 118 Ark. 294, 177 S. W. 424. But such is not the state of the case. In this respect the facts of the case are more like those in the recent case of Johns v. Road Improvement District of Bradley County, 218 S. W. 389, though in that case the whole county was not embraced in the several districts created by the statute under consid- The language of the statute with respect eration. The effect of the present statute is to the submission to the electors is to some the same as if the Legislature had enacted extent ambiguous; but, when the whole statfour separate statutes creating separately ute is considered together, it is clear that the the four districts created by this statute. lawmakers did not intend to submit the question of making the law, but intended to submit the question of acceptance of its provisions by interested persons. [2] The statute contains a provision for submitting to the electors of the county, at an election called by the county judge, the question of invoking the operation of the [4] Another attack is grounded on a secstatute, and an attack is made in this case tion which provides that, if any part of a upon the validity of the election held pur- road or roads to be improved have not heretosuant to the terms of the statute. It is al- fore been laid out as a public road, the coun、 leged in the complaint that the election was ty court shall lay out the road in accordance held and that a majority of the electors vot- with the provisions of the general statutes. ed in favor of invoking the operation of the This statute does not require the county statute, but that the statute had not been court to lay out the road, but is a mere direcpublished at the time of the election; that tion to the court to exercise its jurisdiction the electors were not familiar with its terms, ton, 213 S. W. 762; Bush v. Delta Road Imin that respect when invoked. Sallee v. Daland none of them had any idea of the prob-provement District of Lee County, 216 S. W. able cost of the improvement; and that 690. those who voted in favor of the adoption did [5] The statute provides for the mainteso under the impression that the improvenance of the roads authorized to be improved ment would not cost more than an average and provides for continuing power of the of five cents an acre. It is not alleged that board of commissioners for that purpose. It there was any fraud perpetrated in the elec-is contended that this renders the statute tion which influenced the voters, and there void, but that question is set at rest by the is therefore no ground stated for contesting decision in Dickinson v. Reeder, 220 S. W. the result. The statute itself contains no 32, announced to-day. express provision for a contest, but it does [6] It is alleged in the complaint that the provide that the returns of the election shall assessments levied amount to $5.40 per acre, be made to the county court and that the court "shall count the vote and declare the result and enter its finding upon the records of the court, and said finding shall be conclusive unless an appeal therefrom is taken and perfected within thirty days." Section 5. and that the levy of additional assessments are authorized to pay for the maintenance of the roads without regard to the benefits, and that the total amount which can and may be assessed against the lands will exceed the benefits. This is a mere statement It is unnecessary to determine whether of a conclusion without stating the facts upthe chancery court had jurisdiction to enter- on which it is based. The statute itself protain an attack upon the integrity of the elec- vides a remedy by appeal from the assesstion held pursuant to the terms of the stat-ments of the board, and in order to give the ute, or whether the remedy of a contestant chancery court jurisdiction it must appear is confined to an appeal from the judgment that the assessments have already been made of the county court; for as before stated, and that they are demonstrably arbitrary there are no facts alleged in the complaint and unjust. Bush v. Delta Road Improvewhich constitute fraud, or from which an ment District of Lee County, supra. inference of fraud could be drawn. This The statute is in the main a substantial (220 S.W.) copy of other statutes, the main features of appellee owed the sum retained as rent on which have been approved by decisions of a portion of the land which he had failed this court, and there is nothing else in the brief which calls for a discussion. Decree affirmed. WOOD and HART, JJ., dissent. MCDANIEL v. JACKSON. (No. 316.) (Supreme Court of Arkansas. April 5, 1920.) Husband and wife 25(1)—Agent cannot be held responsible for acts of principal. Where defendant's wife who had leased land to plaintiff retained from the proceeds of the crop a sum which plaintiff asserted she was not entitled to, plaintiff cannot recover from defendant the amount retained on the theory that defendant was the agent of his wife; the transaction being one where the principal acted herself. Appeal from Circuit Court, White County; J. M. Jackson, Judge. Action by John Jackson against L. J. McDaniel. From a judgment for plaintiff, defendant appeals. Reversed. to cultivate, and that he had promised to pay that sum in consideration of the agreement on Mrs. McDaniel's part not to put hands in appellee's crop. This testimony, however, was evidently not credited by the jury, as there was a verdict for appellee for the amount sued for, while the instructions told the jury to find for the defendant, if they found there was a failure to cultivate the land or a promise to pay rent for it. We would therefore have no hesitancy in affirming the judgment under the facts stated had the suit been brought against Mrs. McDaniel, instead of her husband. The question presented by the testimony is, not that of the liability of a principal for the act of an agent, but the liability of the agent for the act of the principal. It was Mrs. McDaniel herself who received the check, cashed it, and retained appellee's portion. It is therefore immaterial whether McDaniel had previously been his wife's agent or not. In the particular transaction out of which the litigation arises, the principal acted through her self, and not through her husband as agent. versed, as the suit was not brought against So therefore the judgment must be rethe only person shown to be liable. It is so Brundidge & Neelly, of Searcy, for apel- ordered. lant. J. N. Rachels, of Searcy, for appellee. SMITH, J. Appellee made a share crop on land owned by Mrs. L. J. McDaniel. The last cotton was sold and paid for by a check delivered to her, which she cashed. After cashing the check, she retained out of appellee's half of the proceeds the sum of $41.90, and this suit was brought by appellee against the husband of Mrs. L. J. McDaniel for that amount. The suit was brought upon the theory that Mr. McDaniel was his wife's agent, and that he made the contract with appellee under which the crop was grown, and the instructions submitting the case to the jury made McDaniel's liability depend upon the existence of the agency, and these instructions are now defended upon the ground that Mr. and Mrs. McDaniel were joint tort-feasors. But the suit was neither brought nor tried upon the theory that they were joint tortfeasors. The suit is for money had and re'ceived. The allegations of the account filed in the justice court, where the suit was commenced, are that McDaniel, in selling the last bale of cotton, had unlawfully retained $41.90 belonging to appellee, and the undisputed testimony is that Mrs. McDaniel was the owner of the land on which the cotton was grown, and that the check had been delivered to her in payment of this cotton. GRAY v. STATE. (No. 302.) (Supreme Court of Arkansas. April 5, 1920.) 1. Homicide 257(1)—Evidence held to sustain verdict of guilty of assault with intent to kill. In a prosecution for assault with intent to kill by means of shooting with a pistol, evidence held sufficient to sustain a verdict of guilty. 2. Criminal law 543(2)-Former testimony of absent witnesses incompetent until proper foundation laid. In a prosecution for assault with intent to testimony of certain absent witnesses until kill, it was not competent to prove the former proper foundation was laid by showing that such witnesses were out of the jurisdiction of the court, and that their testimony could not otherwise be procured. Appeal from Circuit Court, Miller County; Jas. S. Steel, Judge. with intent to kill, and he appeals. Affirmed. Clarence Gray was convicted of assault Jno. D. Arbuckle, Atty. Gen., and J. B. Webster, Asst. Atty. Gen., for the State. MCCULLOCH, C. J. Appellant was tried Testimony was offered to the effect that below and convicted of the crime of assault For other cases see same topic and KEY-NUMBER in all Key-Nutabered Digests and Indexes with intent to kill, alleged to have been committed by shooting one Dan McKinney. and their testimony could not otherwise be procured. Objections were made to each one of the instructions given by the court, but the instructions seem to follow in form and substance the law as often declared by this court No brief has been filed on behalf of appellant, but we have examined the motion for new trial and other parts of the record, and of the numerous assignments of error in the motion we will discuss only those which ap-in cases of this kind. pear to be matters of importance in deter No error is found in the proceedings, and mining whether or not prejudicial error was the judgment is therefore affirmed. committed. [1] The evidence is sufficient to sustain the verdict. Appellant and McKinney are both young negroes who were employed by a railroad company as laborers, and lived on a work train. The shooting occurred in one HOUSLEY V. STATE. (No. 319.) (Supreme Court of Arkansas. April 5, 1920.) I. Criminal law 427 (5)—Evidence held to show conspiracy to commit arson. negroes out of a settlement by burning and dynamiting their houses. 2. Criminal law 427 (5)-Conspiracy may be established by circumstantial evidence. of the bunk cars where the two men slept. The difficulty began with a demand made by McKinney on appellant for the return of the sum of $6.65 which McKinney claimed appellant had stolen, or in some other way takIn prosecution for arson, evidence held to en from him. Appellant agreed to get the support finding that a conspiracy existed bemoney from the "boss" and pay it to Mc-tween defendant and another to run certain Kinney, and went off for that purpose, but did not return until the next day. McKinney again made demand for the return of the money, and, according to McKinney's testimony appellant, who was sitting on the side of the bed, reached under the pillow and drew out a pistol and immediately began shooting at McKinney, who received a serious wound, a bullet entering the back of his neck and coming out in front at the throat. McKinney ran and appellant continued shooting. There was other testimony in the case in support of McKinney's which tended to show that appellant was not justified in firing at McKinney, and that he fired the shot with specific intent to kill and under circumstances which would have been sufficient to constitute murder in the first degree if death of the victim had resulted. [2] During the course of the trial appellant's counsel offered to introduce the tes timony of Minnie Nelson and two other absent witnesses. The court denied the request, and that ruling is assigned as error. There was no showing made that the absent witnesses were out of the jurisdiction of the court, so that their attendance could not be procured. It appears that subpoenas had been issued the afternoon before the trial began, and that the sheriff in a very hurried search at one particular place in the county had not been able to serve the witnesses, but there was no showing that the witnesses were not in the county or in the state. Counsel undertook to give a reason why the subpoenas were not issued earlier, but there was no request for a posponement of the case in order to procure the attendance of the witnesses. It was not competent to prove the former testimony of the witnesses until proper foundation was laid by showing that the witnesses were out of the jurisdiction of the court A conspiracy to commit an unlawful act may be established by circumstantial evidence, positive and direct evidence not being necessary. Declarations of 3. Criminal law 422 (6) Where there was evidence sufficient to sustain finding that a conspiracy existed, evidence of declarations of a coconspirator, made durthe crime was committed, though not in deing the progress of the conspiracy and before fendant's presence, was admissible. 4. Criminal law 424 (3)-Declarations of coconspirator after completion of conspiracy inadmissible. Where the completion of the crime was completion of the conspiracy, evidence of coconspirator's declarations made after the commission of the crime, out of defendant's presence, but tending to connect defendant with the crime, was inadmissible. 5. Criminal law 427 (2)-Admissibility of coconspirator's declarations after crime depends on continuance of conspiracy. In prosecution for arson where it was claimed that defendant and another entered into a conspiracy to run certain negroes out of a settlement by burning and dynamiting their houses, state, seeking to introduce evidence of coconspirator's declarations made after burning of the houses, made in defendant's absence, had burden of showing that the conspiracy continued after the burning. Appeal from Circuit Court, Garland County; Scott Wood, Judge. Virgil Housley was convicted of arson, and he appeals. Reversed and remanded. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |