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be amended to include the following sections ad-
jacent to the district formed therein known as
the Hermitage Special School District:
"All of section nineteen (19) and twenty-one
(21) township 14 south, range 10 west; all of
sections eight (8), nine (9), and eighteen (18) in
township 15 south, range 10 west, all of section
thirteen (13), twenty-four (24), [Township 14]
south, range 11 west; all of section one (1),
twelve (12) and thirteen (13) in township fifteen
(15), range eleven (11) west; all in Bradley
county, Arkansas."

Other school districts in the county instituted this action to compel the revenue officers of Bradley county to apportion to the old school district the taxes on property which the Legislature attempted to add to the Hermitage Special School District. This suit is based on the contention that the statute violates section 22, art. 5 of the Constitution, which reads as follows:

"No law shall be revived, amended, or the provisions thereof extended or conferred by reference to its title only; but so much thereof as is revived, amended, extended or conferred shall be re-enacted and published at length."

The learned trial judge accepted the view that the statute violated this provision of the Constitution and granted the relief sought for in the complaint.

The contention is that the form of this statute brings it within the reasoning of Judge Cooley in the case of People v. Mahaney, 13 Mich. 481, where he said:

"An amendatory act which purported only to insert certain words, or to substitute one phrase for another, in an act or section which was only referred to, but not published, was well calculated to mislead the careless as to its effect, and was, perhaps, sometimes drawn in that form for that express purpose."

in the new statute, lie adjacent to the district, and the legislative purpose to incorporate them into the old district is definitely declared. All this appears from the face of the statute itself without resort to the old statute, or to its title. What more could have been said to make the legislative intention clearer? The language of the Constitution does not compel us to reject a statute because of its form, unless it falls clearly within the constitutional inhibition. Mere form of expression should be disregarded in searching for the legislative intention. State ex rel. v. Trulock, 109 Ark. 556, 160 S. W.

516.

Applying this well-established rule, we hold that the new statute clearly shows on its face the intention to add new territory to a certain existing school district, and that the form of the statute does not offend against the Constitution. The judgment is, therefore reversed, and the cause remanded, with directions to dismiss the complaint.

CUNNINGHAM v. STATE. (No. 228.) (Supreme Court of Arkansas. March 18, 1918.) 1. WITNESSES 388(2)-CONTRADICTION OF

WITNESSES-FOUNDATION.

In a prosecution for illegally selling intoxicating liquor, testimony of the jailor as to what the police officer who arrested defendant said in defendant's presence at the jail was properly excluded, where no foundation had been laid by questioning the officer thereon. 2. CRIMINAL LAW

1054(1)—APPEAL-RES

ERVATION OF EXCEPTIONS.

toxicating liquors, error in compelling defend-
In a prosecution for unlawfully selling in-
ant to answer questions concerning a plea of
guilty in a federal court will not be reviewed, in
the absence of exceptions.

ROR-CONDUCT OF TRIAL-STATEMENTS OF
PROSECUTING ATTORNEY.

In prosecution for unlawfully selling intoxicating liquors, statement by the prosecuting the whisky openly in the presence of a police attorney that the reason why defendant sold officer was that the law was being openly violated, being merely the opinion of the prosecuting officer, was not prejudicial error.

Appeal from Circuit Court, Garland County; Scott Wood, Judge.

Alfred Cunningham was convicted of selling liquor and he appeals. Affirmed.

[1, 2] We do not think that the statute in question falls within the class referred to by Judge Cooley. It will be observed that the provision of the Constitution condemns statutes which attempt to revive, amend, or ex-3. CRIMINAL LAW 1171(1)—HARMLESS ERtend other statutes by reference to title only, and if the intention of the lawmakers can be discovered from the face of the new statute without resort to the title of the old statute, then it does not fall within the condemnation. In other words, where the new statute is complete on its face and sufficiently definite, so that the meaning of the statute can be ascertained "without the necessity of examining the prior statute on the subject to ascertain the effect of the amendment," then it does not violate the provision of the Constitution. State v. McKinley, 120 Ark. 165, 179 S. W. 181. The Legislature undoubtedly has the power to add adjoining territory to an existing school district, and such was the MCCULLOCH, C. J. Appellant was in- · obvious intention in this instance. If that dicted and convicted of the offense of selling intention appeared on the face of the statute liquor, a felony, committed during the month itself without resort to the title to the act of September, 1916. The conviction was obreferred to, then it is a valid statute. An tained mainly on the testimony of John Tisanalysis of the language used shows that dale, a police officer. Appellant was operHermitage Special School District had been ating a restaurant in the city of Hot Springs, formed by the prior statute referred to, and and Tisdale testified that while he was walkthat certain lands, which are fully describeding down the street towards appellant's res

L. E. Sawyer, of Hot Springs, for appellant. Jno. D. Arbuckle, Atty. Gen., and T. W. Campbell, Asst. Atty. Gen., for the State.

"that the reason why Cunningham sold the whisky openly in the presence of John Tisdale, an officer, was because that at that time whisky was being sold in open violation of the law, and continued to be sold until the grand jury put a stop to it, and in that connection called the attention of one of the jurors to the fact that he knew at that time that whisky was openly sold near his place of business."

taurant he saw a man named Walker com- that the prosecuting attorney stated in his ing across the street toward the restaurant argument— with money in his hands, and that Walker went into the restaurant and up to the counter and gave appellant money, and received whisky from appellant in return. Tisdale testified further that he took Walker into custody after he left the restaurant, and took the whisky away from him. This occurred, according to the testimony of the witness, about noon on a certain day in September, 1916. Tisdale arrested appellant and took him to jail, and he also testified that appellant admitted selling the whisky to Walker. Morehead, the jailer, testified that appellant, when brought to jail, denied that he was guilty of bootlegging, but stated "that if the city needed $50, he would give them $50, but that he would not plead guilty to bootlegging; that if the city was hard up, he would give them $50." Appellant testified in his own behalf and denied that he sold liquor to Walker, or any other person. He introduced other testimony tending to show that he was innocent of the charge.

[1] The first ground urged for reversal is that the court erred in refusing to permit Morehead, the jailer, to state what Tisdale said in the presence of defendant at the jail. Appellant offered the testimony without lay ing any foundation by first asking Tisdale concerning said statement. It is contended that the testimony was competent because it related to a statement made at the same time and place of the alleged confession of appellant, and throws light on the confession. The excluded testimony really had no bearing on defendant's admission, and even if competent, the ruling of the court was harmless. The substance of the testimony concerning

the statement of Tisdale was that Tisdale said that he got the whisky from the negro, Walker, and when the witness was asked what Tisdale said about seeing the sale made by appellant, he replied that he did not remember whether Tisdale said that or not. At that point the court interposed, and on its own motion ruled that the testimony was not competent unless a foundation was laid for contradicting Tisdale. Of course, there could be no contradiction of the witness without laying the proper foundation, and the materiality of the statement as substantive proof is not apparent.

[2] It is next contended that the court erred in compelling appellant to answer a question concerning his plea of guilty to an indictment in the federal court for the same act of selling whisky. There was an objection on the admissibility of the evidence, but no exceptions were saved, so the question is

not before us for decision.

The

We think that this argument was a mere opinion of the prosecuting officer, attempting to draw an inference as to law enforcement in that city and community, and an application of it to appellant's attitude as shown by the testimony adduced by the state. question of the extent to which the law is enforced is necessarily one of opinion, and different minds may draw different conclusions in a community as to whether or not the law is being properly enforced. The substance of the argument was that appellant had grown so bold in the violation of the liquor laws that he sold liquor with impunity in the very presence of an officer, and that this was caused by the laxity in the enforcement of the law. The argument was one that is not to be commended as altogether fair to an accused person on trial, but we do not think that it affords ground for reversing judgment. This applies to the whole of the statement, for the latter part of it, calling upon one of the jurors to verify the statement, was, after all, a part of the statement of the prosecuting attorney's own opinion as to the laxity in law enforcement which emboldened appellant to sell whisky openly. It has often been held by this court that mere expressions of opinion by an attorney in argument, however erroneous and unfounded the opinion may be, do not constitute grounds for reversal of a judgment.

The judgment in this case is therefore affirmed.

WILHELM v. COLLISON. (No. 235.)
(Supreme Court of Arkansas. March 18, 1918.)
GRANTING
APPEAL AND ERROR 979(2)
NEW TRIAL-REVIEW.

Where the evidence is sharply conflicting, an order granting a new trial on the ground that the verdict is against the preponderance of the evidence will not be disturbed.

Appeal from Circuit Court, White County; J. M. Jackson, Judge.

Action by J. E. Wilhelm against J. Collison. Verdict for plaintiff, and from an order granting a new trial, plaintiff appeals. Affirmed.

Jno. E. Miller, of Searcy, for appellant. Cul. L. Pearce, of Bald Knob, and Brundidge, & Neely, of Searcy, for appellee.

[3] The third and last ground urged for SMITH, J. Upon the trial of this cause in reversal relates to certain statements of the the court below a verdict was returned in prosecuting attorney in the closing argument favor of appellant, Wilhelm, but a new trial to the jury. The bill of exceptions recites was granted, and this appeal has been prose

of discretion was shown in the action of the trial court on that subject. According to Collison, the debt claimed by Wilhelm had been extinguished by the redelivery to Wilhelm of a small sawmill outfit, and there was testimony corroborating Collison's statement in this regard.

No abuse of discretion is shown, and the judgment is affirmed.

cuted to review that action. Stipulation is ance further than to decide whether an abuse filed by counsel that final judgment may be rendered against appellant in the event the judgment of the court granting a new trial is affirmed, and we therefore proceed to review that action on the part of the trial court. Wilhelm was the plaintiff in the court below, and sued to recover the purchase price of a carload of lumber shipped from Bald Knob, Ark., to the John Deere Plow Company. Wilhelm claimed that a check for $219, issued in payment for the lumber was made payable to the order of himself and the defendant, J. Collison, to enable Collison to retain the sum of $50 due him for loading and hauling the lumber, and that he (Wilhelm) indorsed the check in order that Collison might collect the sum due himself, but upon the further understanding that the difference should be paid Wilhelm; but that after cashing the check Collison retained the whole amount collected. Wilhelm so testified, and the jury accepted his statement and returned a verdict accordingly in his favor.

We are not called upon to pass upon the legal sufficiency of this testimony to support a verdict based upon it, because the court below granted a new trial pursuant to the prayer of a motion therefor which assigned as a ground therefor, that the verdict of the jury was contrary to the preponderance of the evidence. We have many times said that the trial court should grant the motion for a new trial when convinced that the verdict of the jury was clearly against the preponderance of the evidence. Mueller v. Coffman, 200 S. W. 136; Twist v. Mullinix, 126 Ark. 427, 190 S. W. 851. And when the trial court reaches that conclusion and takes that action we have announced as a rule governing us in our review of that action that:

"This court will not reverse a decision of the trial court granting a new trial on the weight of the evidence unless it appears that there has been an abuse of the discretion in setting aside the verdict, which is sustained by the clear preponderance of the evidence." McIlroy v. Arkansas Valley Trust Co., 100 Ark. 599, 141 S. W. 197.

And in the case of McDonnell v. St. L. S. W. Ry. Co., 98 Ark. 336, 135 S. W. 926, the rule was stated as follows:

"This court will not reverse the ruling of the lower court in setting aside a verdict where there is substantial conflict in the evidence upon which the verdict was rendered, but will leave the trial court to determine the question of preponderance. Taylor v. Grant Lumber Co., 94 Ark. 566 [127 S. W. 962]; Blackwood v. Eads, 98 Ark. 304 [135 S. W. 922]."

See, also, Clements v. Knight & Co., 125 Ark. 488, 188 S. W. 1173, and cases there cited.

(No. 232.)

FOREHAND et al. v. HIGBEE.
(Supreme Court of Arkansas. March 18, 1918.)
1. TAXATION 709(2)-SALE OF LAND-RE-

DEMPTION AMOUNT.

Under Kirby's Dig. 88 7095-7102, as to redemption of land sold for taxes, where a certificate of redemption was issued to the owner by the deputy county clerk in the discharge of his duties, the owner had a right to rely upon it as stating the correct amount, and the payment to the county treasurer of the sum indicated, although such sum did not include the full amount of the penalty due, was effectual as a redemption.

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Under Kirby's Dig. §§ 7095-7102, as to redemption of lands sold for taxes, where plaintiff, who had procured a redemption certificate and paid the amount stated therein to the county treasurer, delivered the treasurer's receipt to the county clerk and asked that it be filed, there was a "filing," so that the fault of the clerk in failing to file cannot be imputed to plaintiff, the paper being filed when delivered to the proper officer, and by him received to be kept on file.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, File.] Appeal from Poinsett Chancery Court; Archer Wheatley, Chancellor.

Suit by H. H. Higbee against J. W. Forehand and another. Decree for plaintiff, and defendants appeal. Affirmed.

This is a suit in equity by H. H. Higbee against J. W. Forehand and John W. Scobey to cancel a deed to 160 acres of land executed to them by the state land commissioner in 1916. Higbee purchased the land in question in January, 1909, and has been in possession of it through his tenants ever The land was returned delinquent since. for the state and county taxes for the year 1912, and on the second Monday in June 1913, was forfeited to the state for the nonpayment of taxes. It was duly certified to the state in 1915, after the two-year period of redemption had expired. made by the state land commissioner to the lands to J. W. Forehand and John W. Scobey and the consideration paid the state was $200. On August 5, 1913, Higbee mailed a check for $73.49 to J. Brinkerhoff, his agent at Harrisburg, Ark., and directed him to redeem the land for him. On the 8th day of August, 1913, Brinkerhoff went to the county clerk's office and applied to redeem the land for the taxes for the year 1912. A deputy

A deed was

The evidence in the case was by no means undisputed, and counsel for appellee insists that the verdict was in fact contrary to the preponderance of the evidence. The evidence was sharply conflicting, and we do not review it to determine the question of preponder- in the county clerk's office, of long experi

ence, prepared for Brinkerhoff a redemp-, custodian of the book containing the entries tion certificate for said land, in which the of taxes and costs. All applications for reamount of taxes, penalty, and costs due was demption must first be made to him, and he recited to be $52.50. The clerk prepared a must issue a certificate of redemption showredemption certificate signed in triplicate, ing the amount of taxes, penalties, and costs and Brinkerhoff then went to the office of due. Upon presentation of such certificate of the county treasurer and paid him the the county clerk to the county treasurer and amount recited in the redemption certificate. upon payment of the money to the treasurer The treasurer gave him duplicate receipts the latter is required to give duplicate retherefor. Brinkerhoff then delivered the re- ceipts therefor. Kirby's Digest, §§ 7095-7102. demption certificate with the receipt of the In the present case a certificate of redemptreasurer to the county clerk in his office, tion was issued to the landowner by the depuand asked that it be filed there as required ty county clerk in the discharge of his official by the statute. After this suit was brought duties and the owner had a right to rely upon it was ascertained that the clerk had failed it as containing the correct amount of taxes, to file the certificate and receipt as required penalty and costs due by him. The owner by the statute. A search was made for it, was not negligent in failing to examine the and it was found in the county clerk's office certificate of redemption to see if it was corwith other certificates of redemption that rect. If the taxpayer was authorized to behad been issued during the year 1913. Brin- lieve the certificate was correct at the time it kerhoff then obtained permission from the was issued, and that it covered all that was county clerk to take out the certificate and due to the state for the redemption of the receipt and keep it until it should be needed land, he could rest under that belief, and oras evidence in this case. The clerk in mak-dinary care and prejudice would not require ing out his certificate of redemption did not embrace in it the full amount of the penalty required by the statute, so that Higbee lacked $6 of paying the full amount of the penalty due. The certificate showing the amount of taxes, penalty, and costs due was

prepared by the deputy county clerk, and

he was paid the full amount stated therein. The court found in favor of the plaintiff, and a decree was accordingly entered, canceling the deed from the commissioner of state lands to J. W. Forehand and John W.

Scobey. They have appealed.

Jno. W. Scobey, of Lepanto, for appellants. Gordon Frierson and Hawthorne & Hawthorne, all of Jonesboro, for appellee.

HART, J. (after stating the facts as above). [1] The decree of the chancellor was based on the ground that the redemption by Higbee was valid. The validity of the redemption is attacked on two grounds: First, it is claimed that appellee did not pay the amount required by law to redeem; and, second, that the receipt from the treasurer was not filed in the office of the county clerk as required by the statute.

It appears from the record that in making out the redemption certificate the deputy county clerk, by miscalculation as to the amount of penalty due, made it a little over $6 less than the true amount, and that the county treasurer allowed the owner to redeem by paying this amount. It is insisted that the owner was bound to tender the full amount, and that he cannot be relieved from a mistake of fact made by the officer. The right to redeem is given by the statute, and the owner must apply for the redemption, but it is the duty of the officer in such cases to give the information necessary as to the amount to be paid for the redemption. Un

him to examine the certificate for mistakes thereafter. We are of the opinion that the owner might rely, and in good faith act, upon the certificate of redemption, and that the payment of the sum contained in it was effectual as a statutory redemption. 37 Cyc. 419; Cooley on Taxation, vol. 2, p. 1048; Forrest

trager v. Mahoney et al., 78 Iowa, 537, 43 N. v. Henry, 33 Minn. 434, 23 N. W. 848; HinW. 522, 6 L. R. A. 50; Corning Town Co. v. Mason, 57 Pa. 40; O'Connor v. Gottschalk et Davis, 44 Iowa, 622; Dietrick & Wilson v.

al., 148 Mich. 450, 111 N. W. 1048; Martin v. Barbour, 140 U. S. 634, 11 Sup. Ct. 944, 35 L. Ed. 546; Gage v. Scales, 100 Ill. 218; Nelson v. Churchill, 117 Wis. 10, 93 N. W. 799; Converse v. Rankin, 115 Ill. 398, 4 N. E. 504. This rule is in accord with the principles announced in our own decisions, holding that where a taxpayer makes an attempt in good faith to pay his taxes and is prevented by the mistake, negligence, or other fault on the part of the collector, the sale of his land for nonpayment of taxes is void. Robertson v. Johnson, 124 Ark. 405, 187 S. W. 439; Scroggin v. Ridling, 92 Ark. 630, 121 S. W. 1053; Kinsworthy et al. v. Austin, 23 Ark. 375.

[2] To sustain his contention that the redemption failed because the owner did not file the receipt from the county treasurer with the county clerk as required by the statute, counsel relies upon the case of Cook v. Jones, 80 Ark. 43, 96 S. W. 620. In that case there was no attempt to comply with the statute on the part of the landowner. There was no receipt of the treasurer filed, or attempted to be filed with the county clerk, showing that the amount necessary for redemption had been paid into the treasury. Here the facts are to the contrary. The owner did all that was required of him. He deposited the treasurer's receipt in the county clerk's office to

fault of the clerk in failing to file it cannot be imputed to him. As we have already seen, the taxpayer cannot be deprived of his right to redemption by the neglect of duty on the part of the officers of the state. Moreover, the treasurer's receipt was deposited with the county clerk to be filed, and that act constituted the filing of it. "A paper is filed' when delivered to the proper officer and by him received to be kept on file." Bettison v. Budd, 21 Ark. 578; Eureka Stone Co. v. Knight, 82 Ark. 164, 100 S. W. 878; Case & Co. v. Hargadine, 43 Ark. 144.

As was said in the last-mentioned case, it

would be a harsh rule to punish an individual,
who in the prosecution of a right has done
therein all that the law required him to do,
for the omission by a public officer to comply
with the forms prescribed as his duty.
The decree will be affirmed.

FLOWERS v. HUFF et al.
NATTEE v. SAME.
(No. 188.)

(Supreme Court of Arkansas. Feb. 25, 1918.)
1. ANIMALS 51-STOCK DISTRICTS-RUN-
NING AT LARGE.

Evidence held to warrant a finding that a horse was running at large and was not being hotly pursued within the meaning of Kirby's Dig. §§ 1407-1409, relating to impounding of animals.

2. ANIMALS 51.

brought suit against appellees in the Little
Rock municipal court for a horse owned by
him which had been found in fencing dis-
trict No. 3, Pulaski county, and impounded
by appellees. The cause was tried in the
municipal court, and judgment was rendered
in favor of appellees, from which an appeal
was prosecuted to the circuit court of Pu-
laski county. The cause was there tried by
the court sitting as a jury upon an agreed
statement of facts, and judgment again ren-
dered in favor of appellees. Proper steps
were taken, and the cause is here on appeal.
The agreed statement of facts, upon which
the cause was submitted, is as follows:
1917, the horse in question was found within
"It is agreed that on the 10th day of January,
Fencing District No. 3, Pulaski county, Ark., a
duly organized fencing district.

"It is further agreed that the agents and employés of the defendant, Dan Rauch, who was a landowner in said fencing district, took possession of said horse and delivered it to Dan Rauch, defendant,_and_while in the possession of the defendant, Dan Rauch, the plaintiff stated that he would pay $1 for the redelivery of the horse; such offer was refused, and the horse was delivered into the possession of the defendant, Dan Rauch, by his agents and employés, and within a few days after this action was instituted said horse died; that such offer was made within two hours after possession was taken of the horse by the agents and employés of the defendant, Dan Rauch, and the defendant demanded five dollars for his fee for the delivery of said horse.

"It is further agreed that there was no application made to the secretary of the board of the said fencing district for appraisers to assess and fix the fee and damages by either the plaintiff or the defendant.

to the defendant in open court, which tender "The sum of $1 was tendered by the plaintiff was refused."

STOCK DISTRICTS - IMPOUNDING-NECESSITY FOR APPRAISERS. Under Kirby's Dig. § 1409, providing that, where an animal is impounded and the parties disagree as to the amount of the fee for impounding and damages, appraisers shall be appointed, where the impounder asks an exorbitant fee, he is not protected by the statute, and the brought suit against appellees in replevin in In No. 5160, appellant, John Nattee, owner, after tendering a reasonable amount, may immediately bring action for possession. the Little Rock municipal court for a mare 3. ANIMALS 51 STOCK DISTRICTS IM-owned by him, which had also been found in POUNDING-FEES-NECESSITY FOR APPRAIS- fencing district No. 3, Pulaski county, and impounded by appellees.

ERS.

Where a horse was impounded with little effort and no damage was done, and impounder refused a tender of $2.50 and demanded $5, the owner could immediately replevin the horse without appointment of appraisers provided for by Kirby's Dig. § 1409.

This cause took

the same course, and with like result, as the Algia Flowers case, and is here on appeal. The latter case was heard upon oral evidence instead of an agreed statement of facts.

The undisputed facts disclosed that the Appeal from Circuit Court, Pulaski Counmare was found in appellees' oat stubble ty; Guy Fulk and G. W. Hendricks, Judges. field, and was impounded with little effort Separate actions by Algia Flowers and by appellees, on the 10th day of January, John Nattee against John Huff and others. 1917, within fencing district No. 3, Pulaski Judgment for defendants and plaintiffs ap-county, which was duly organized under the peal. First case affirmed, and second case reversed and remanded.

J. P. Kerby, H. C. Locklar, and H. C. Reigler, all of Little Rock, for appellants. Jas. A. Watkins, of Little Rock, for appel

lees.

general law, and both appellant and appellees owned land in said district at the time; that appellant made demand for the animal within 15 or 20 minutes after she had been impounded; that the animal had done no damage whatever; that appellant first offered appellees 50 cents, then $2, and then HUMPHREYS, J. These cases involve the $2.50 for their trouble in impounding the same defendants and a construction of the animal, but appellees refused to take said same statutes, so one opinion will suffice in sum, and demanded $5 for a release of the the two cases. animal; that neither appellant nor appelIn No. 5080, appellant, Algia Flowers, lees applied to the secretary of the fencing

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