entire plant was sold by a receiver under was made by Wilkes-Barre Anthracite Coal an order of court to Wilkes-Barre Anthracite Company, through whom appellee claimed, Coal Company. This sale was not confirmed to remove the mining machinery from the by the court, but the company assumed premises. The original owners restored the control of the property and operated it by property to its former status at great cost, subleases and through agents and paid roy- including expensive repairs on the machinery alties under the lease to George Heim and in question. The original owners and their others during the years 1908, 1909, 1910, 1911. lessees retained the machinery and operAbout that time, the company ceased to ated it for more than a year before it was operate the mines and the evidence strong- sold under execution by a creditor of the ly tends to show it abandoned the lease and Wilkes-Barre Anthracite Coal Company. property. The mine was not operated Passing the questions of whether the mafor several years and never operated again chinery and other improvements under the by the Wilkes-Barre Anthracite Coal Com- terms of the lease were a part of the real espany. The coal company failed to pay the tate, and whether or not the Wilkes-Barre taxes assessed against the plant and lease Anthracite Coal Company acquired the right for the years 1911 and 1912. In 1913, the to remove the machinery by its purchase plant was almost destroyed by fire. One wit- from a former lessee who had placed the ness who saw it after the fire described the improvements on the property, we are of plant as a "pile of junk." In the year 1913, opinion that the Wilkes-Barre Anthracite George Heim and others, owners of the land Coal Company, or its creditors, should have and original lessors thereof, brought suit removed the machinery within a reasonable against Wilkes-Barre Anthracite Coal Com- time after the lease was canceled, if it or its pany to cancel the original lease, and pro- creditors intended to claim any interest cured a cancellation thereof in the Johnson therein. The original lease provided that chancery court on July 22, 1914; also pro- the lessee might remove the machinery upon cured an order for the return of the lands the termination of the lease. This did not and all improvements and appurtenances mean upon the exact moment the lease was thereunto belonging. George Heim and his terminated, but it did mean that the propco-owners took immediate possession of the erty should be removed within a reasonable plant, including the machinery involved in time after the termination of the lease. this suit and leased the property to the Bache, Receiver, v. Central Coal & Coke Co., Smokeless Anthracite Coal Company. The 127 Ark. 397, 192 S. W. 225. Smokeless Anthracite Coal Company repaired the entire plant, and has possession thereof and is operating same under lease from George Heim and others. The sheriff seems never to have taken actual possession of the property either under the attachment or execution. Expensive repairs were placed by the company on the particular machinery involved in this suit.

The facts in this case disclosed that they waited an unreasonable time, and, during that time, permitted the original owners and its lessees to place repairs on the property greater in value than the original property itself. On the undisputed evidence in this case, the trial court should have so found and declared.

Under this view of the case, it is unnecessary to discuss any question raised on the cross-appeal.

The main question to be determined on appeal is whether there is sufficient evidence to support the finding of the lower court For the error indicated, the cause is rethat appellee acquired title to the property versed, with direction to dismiss the comin question through the execution sale un-plaint of appellee.

der C. H. Bufford's judgment against the
Wilkes-Barre Anthracite Coal Company.
The judgment was obtained by Bufford in
January, 1915. The property was sold un-

der execution issued in September, 1915. Ap-(Supreme Court of Arkansas. March 4, 1918.) pellee's title must depend upon such title as 1. COUNTIES 168(4)—INSURANCE OF INTERWilkes-Barre Anthracite Coal Company had EST-BEARING WARRANTS-STATUTES. to the property at the time of the execution Acts 1917, p. 849, § 8, authorizing a county sale in September, 1915. The undisputed judge to pay certain amounts for forbearance of evidence disclosed that the property in ques- same for payment, contravenes Const. 1874, art. holders of county warrants in presenting the tion was mining property placed upon the 16, § 1, relating to issuance of interest-bearing land by the Superior Anthracite Coal Com- evidences of indebtedness. pany under the original lease made by George Heim and others to C. H. Langford. lease in question was canceled by order of the chancery court on July 22, 1914, and the property was returned to the original owners. They took immediate control and pos- Appeal from Circuit Court, Garland Counsession of all the machinery. No attempt | ty; Scott Wood, Judge.

2. TAXATION 527-PAYMENT BY WARRANT The Acts 1917, p. 847, § 4, providing that county warrants shall not be receivable in payment of taxes, contravenes the specific provisions of Const. 1874, art. 16, § 10.

-STATUTES-CONSTITUTIONALITY.

38

Mandamus by James Gould to compel Charles H. Davis, as Treasurer of Garland County, to pay a warrant. From a judgment dismissing the petition, the plaintiff appeals. Affirmed.

James Gould filed a petition for mandamus against Charles H. Davis, as treasurer of Garland county, to compel the payment to him of a county warrant of which he was the owner. His petition alleges that the county treasurer has in his hands sufficient funds with which to pay said warrant, but The defendant refused to pay the same. stated in his answer that Garland county was indebted in the sum of $180,000, and that the Legislature of 1917 passed a special act for the funding of its indebtedness. Acts of 1917, vol. 1, p. 846. The answer further alleged that, pursuant to this act the county made a contract with James Gould to take up its warrants and hold them for a specified time in the future without presenting them for payment, and in consideration therefor it agreed to pay said Gould a specified amount for his indulgence in not presenting said warrants for payment until the time specified in the contract; that the warrant in question shows on its face that it was issued to James Gould pursuant to said contract with him for the funding of the indebtedness of the county. It was also alleged in the answer that the act of the Legislature under which the warrant in question was issued is unconstitutional and void. The plaintiff filed a general demurrer to the answer, and also specifically demurred to that part of the answer which alleged that Act 158 of the Acts of 1917 was unconstitutional. The circuit court was of the opinion that section 8 of Act 158, being a special act regulating the payment and issuance of warrants by Garland county, was unconstitutional, and thereupon overruled the demurrer to the second paragraph of the answer. It appearing that the warrant attached to the petition for mandamus was issued under the provisions of this section, the court dismissed the petition for mandamus at the cost of the plaintiff. The case is here on appeal.

Buzbee, Pugh & Harrison, of Little Rock, for appellant. B. H. Randolph and G. H. Speer, both of Hot Springs, for appellee.

HART, J. (after stating the facts as above). This appeal involves the constitutionality of section 8 of the Act 158 of the Acts of 1917 (Acts of Ark. 1917, vol. 1, p. 846). Section 8 reads as follows:

It is claimed that the act is in violation of section 1, article 16, of the Constitution of 1874, which reads as follows:

"Neither the state nor any city, county, town or other municipality in this state shall ever loan its credit for any purpose whatever; nor shall any county, city, town or municipality ever issue any interest-bearing evidences of indebtedness except such bonds as may be authorized by law to provide for and secure the payment of the present existing indebtedness, and the state shall never issue any interest-bearing treasury warrants or scrip."

In Quinn v. Reed, 197 S. W. 15, the court, in construing this section of the Constitution, held that the county court had no power to enter into separate contracts for the payment of interest. The court said that the county court exceeds its power when it undertakes to issue warrants or other evidences of indebtedness in any form for the payment of There the interest for future forbearance. statute which was held to be unconstitutional provided that the county court of Pulaski county might call in its warrants for reissuance, payable to bearer at a future date, and that the county court"is authorized to pay to the parties accepting any of said reissued warrants payable at a future date, a fair sum, representing the value of their indulgence in waiting for payment at such future date, such price to be paid either in money or warrants, but not to exceed the equivalent of 6% per annum for the time for which said indulgence is granted."

[1] An attempt is made by counsel to distinguish section 8 of the act under consideration and the Pulaski county act. It is evident from reading them that each of them has for its object and purpose the payment of a sum of money to the holders of the warrants or to some one else for their forbearance in presenting the warrants to the county treasurer for payment. County warrants are orders on the county treasurer to pay certain moneys on account of the county. This is the usual form in which all public debts are paid. When the act in question is considered in its entirety, it is evident that section 8 is an attempt to pay to the holders of county warrants a sum equal to a stipulated rate of interest for their forbearance in presenting warrants for payment. think there is no material difference between the section of the statute under consideration and the Pulaski county act, which was held to be in contravention of the section of the Constitution above quoted.

We

[2] It may not be inappropriate to state here that section 4 of the act under consideration provides that no county warrants hereafter issued by said county shall be receivable for taxes, nor in payment of any fines, penalty, or forfeiture, but shall be payable only in the current money of the United States. Section 10, article 16, of the Constitution of 1874 provides that the taxes of counties, towns, and cities are only to be payable in local currency of the United States, or the orders or warrants of said counties, So it will

"The county judge of said county is authorized to pay to brokers or agents for their services in funding outstanding warrants by the taking up of same and the issuance therefor of warrants payable in the future at a fixed date a sum in money or in warrants, not to exceed the equivalent of 7% per annum for the time the refunding warrants shall run from date thereof until time fixed in said warrants for payment." towns, and cities, respectively.

tion 1 of the act, and it is claimed by the state that it would be a violation of its provisions for the defendant to bring intoxicating liquors into the state for the purpose of sell

Therefore the judgment will be affirmed. ing them after he had brought them here.

licenses in this state after January 1, 1916. | to another person. It cannot be said that Acts 1915, p. 98. It also passed an act making section 1 of the statute is violated when a the carrying on of the sale of intoxicating person brings liquor into the state for the purliquors in violation of the laws of the state pose of selling it after he has brought it here. under certain conditions a public nuisance As we have already seen, we have other and providing for the abatement thereof. statutes directed against the illegal sale of Acts of 1915, p. 408. Until the passage by liquor or the keeping of it for sale. It is Congress of the Webb-Kenyon Act (Act Cong. manifest from the language used that the March 1, 1913, c. 90, 37 Stat. 699 [U. S. Comp. first section of the statute under consideraSt. 1916, § 8739]) the regulation of the trans- tion prohibits the transportation, shipment, portation of liquors from one state into an- carriage, or delivery of intoxicating liquors other had not received much attention from in this state by any carrier or person to anthe various state Legislatures. The purpose other. Most of the statutes regulating the of the Webb-Kenyon Act was to remove the transportation or delivery into a state of inprotection of the interstate commerce clause toxicating liquors have some degree of simof the Constitution of the United States from ilarity. Most of them, doubtless recognizing the interstate shipment of intoxicating liquors. the fact that liquor dealers in other states The act was approved on March 1, 1913. It were using the express companies and other was construed by the Supreme Court of the public carriers as means of distributing their United States in Clark Distilling Co. v. Wes- liquors, have passed a statute similar to our tern Maryland Railway Company and State section 1. Other sections are usually includof West Virginia (Clark Distilling Company ed allowing carriers to transport into or to v. American Express Company and State of deliver to a person within the state in a given West Virginia), 242 U. S. 311, 37 Sup. Ct. 180, time a limited quantity of intoxicating liq61 L. Ed. 326, L. R. A. 1917B, 1218, Ann. Cas. uors for his own personal use or for the use 1917B, 845. The court held (quoting from the of his family. Other states have forbidden syllabus): entirely the introduction of intoxicating liquors within their borders. Such states have enacted statutes not only prohibiting carriers or other persons from bringing liquors into the state or delivering them to persons there, but have forbidden persons from bringing into the state intoxicating liquors for their own personal use. In all the statutes which we have examined when it is intended to prohibit any person from introducing liquors into the state the language of the statute has expressly forbidden such persons from bringing intoxicating liquors into the state. It will be observed that the section uses the words "to ship or to transport into, or to deliver in this state." It would seem that the words "to ship or to transport into" would include a delivery to the consignee by the initial carrier in person; and that the words "to deliver" were meant to place the ban of the statute upon any transfer company or person who should undertake to deliver to the consignee the intoxicants after they had arrived at the place of destination.

"Act Cong. March 1, 1913, 37 Stat. 699, known as the Webb-Kenyon Act, operated, if constitutional, to give effect to the above-stated prohibitions of the West Virginia law in respect of liquors shipped into the state for personal use, by withdrawing from such shipments the immunity of interstate commerce, and to forbid the shipment or transportation into the state of liquors intended to be received or possessed there for personal use contrary to such state prohibitions."

In that case the court also held that the act was a legitimate exercise of the power of Congress to regulate commerce, and that it was not repugnant to the due process clause of the Fifth Amendment to the Constitution of the United States. In short, the act renders applicable to interstate shipments of intoxicating liquors a state statute in regard thereto, but adds nothing to the state regulation, The majority of the court is of the opinion that the proper construction to give the statute according to its plain language is that it forbids any carrier or its agents to ship or to transport into or to deliver in this state any intoxicating liquors from any point without the state to any person, firm, or corporation within the state, when the said liquors, or any of them, are intended by any person interested therein to be received, possessed, or sold, or in any manner used, except as provided in section 17. Section 17 allows any priest or minister to have shipped and delivered to him wine for sacramental purposes, and any person may have alcohol shipped and delivered to him for strictly medicinal or mechanical purposes upon compliance by the carrier of the regulation prescribed by the section. There is nothing in the section which prohibits any person from bringing liquor into the state. The first section of the act is directed solely against the carrier or other person bringing liquor into the state

The concluding part of section 1 is for the purpose of harmonizing the various sections of the act and allowing the carrier or other person to transport or to deliver into the state wine for sacramental purposes or alcohol for medicinal or mechanical purposes under the provisions of section 17 of the act. Other states have sections similar to that of section 1 of our statute, and conclude with the words "or other intoxicating liquors is intended by any person interested therein to be received, possessed, sold, or in any manner used in violation of any law of this state." Whether in the form used in our statute or in the form just quoted, the object of the concluding part of the section is to recognize the right of the carrier or other

liquors in accordance with other provisions | full effect to the statute. As I read it, the of the act. For instance, in several of the states there is another section which allows a person to have shipped, transported, or delivered to himself in the state from a point without the state a limited quantity of intoxicating liquors within a given time. The concluding part of a section in the language just quoted or language of similar import is to allow the transportation into and delivery in the state to a consignee as provided in other sections of the act. So, as we have already seen, the concluding part of section 1 of our statute allows carriers or other persons to transport into and to deliver in this state to the consignee liquors in accordance with section 17 of the act.

We think the construction we have placed upon the statute is borne out by the plain language used in it, and we are of the opinion that a person who personally brings intoxicating liquors into the state for himself does not come within the prohibition of the statute. If he uses them in violation of the law or keeps them for the purpose of selling them after he has brought them into the state, there are other statutes, as we have already pointed out, dealing with this phase of the question.

It follows that the court erred in telling the jury that the defendant would be guilty if he brought the intoxicating liquors within the state for the purpose of selling them after he had brought them here.

For this error the judgment will be reversed, and the cause remanded for a new trial.

HUMPHREYS, J. (dissenting). I do not differ from my Colleagues on the canons for the construction of statutes, but differ from them as to the meaning of the statute in question under the rules of construction invoked. The construction placed upon section 1 of Act 13 of the Acts of 1917 by the majori

ty limits its application to carriers or per-
sons who bring liquor into the state for a
particular person or who deliver liquors to
another in the state. In other words, the
majority make delivery to some one or ship-
ment or transportation to a particular per-
son the gist of the offense. Under the ma-
jority construction an individual can bring
all the liquor he desires into the state for
his own use or for purposes of sale without
punishment as long as he keeps it in his
possession. Such a construction, in my hum-
ble judgment, contravenes the plain language
of the act. Shipment into this state or trans-
portation into this state is just as much the
gist of an offense as delivery. Each is clear-
ly made an offense under section 1 of the
statute. Three offenses are provided for in
said section, to wit, to ship into the state, to
transport into the state, or to deliver in
this state to any person, firm, or corporation
within this state. It will be observed that
the language is "to ship or transport into, or
deliver to.
The statement is in
the alternative, and each act should be con-

only exemption provided for is the right to ship, transport, or deliver wine for sacramental purposes or alcohol for strictly medicinal or mechanical purposes. A reading of the whole act, and especially sections 8 and 9 of the act, convinces me that the Legislature intended to pass a bone dry law for the state of Arkansas. The title of the act is in perfect accord with my construction, and clearly imports an intention on the part of the Legislature to pass a bone dry law. An identical statute to the one under construction was passed by the state of Georgia in 1915. One is impelled to the belief, after reading the two statutes, that the Arkansas law was copied from the Georgia law. The Georgia statute was under construction in the case of Hendry v. State (Ga.) 93 S. E. 413, and that court unanimously agreed upon the second and third divisions of the decision, which are as follow:

"(2) The act of the Legislature approved November 18, 1915, in reference to intoxicating liquors (Laws Ga. Ex. Sess. 1915, p. 90), makes it illegal for individuals, although they are not carriers for hire, to ship or transport the prohibited liquors therein specified in quantities in excess of that allowed by law from another state into the state of Georgia.

"(3) The court below did not err in charging the jury that 'no person in Georgia has the any intoxicating liquors whatever for illegal sale, right now. under the law, to ship into this state and if any person does so he violates the law.'"

Because of the striking similarity in the Georgia and Arkansas statutes, I regard the Georgia case as the best case authority on the question. It is more nearly in point than any other case, being a construction of a statute from which our own was taken. By analogy my construction of this statute is supported by Watkins v. State (Okl. Cr.) 165 Pac. 621, and United States v. Chavez, 228 U. S. 525, 33 Sup. Ct. 595, 57 L. Ed. 950. My construction does not run counter to any

language used in the act.

For the reasons expressed, I register my dissent from the original opinion handed down by the majority, as well as the additional opinion of the majority on motion for rehearing.

On Rehearing.

HART, J. For the sake of convenience and in order to abbreviate the discussion of the argument made by the Attorney General in his brief on the motion for a rehearing

we will first set out the section of the act under consideration in a condensed form, retaining, however, all its essential features:

Section 1. That it shall be unlawful for any ship or to transport into, or to deliver in this railroad company, etc., or any other person, to State in any manner or by any means whatsoever, any alcoholic liquors from any other state, etc., to any person. firm, or corporation within this state, when the said liquors, or any of them, are intended by any person interested therein to be received, possessed or sold, or in any manner used except as provided in section 17.

It is insisted by the Attorney General that that portion of the section which declares it unlawful "to deliver in this state" is fol