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In the case of Lucas v. Futrall, 84 Ark. / sults in the solution of the difficulty present540, 106 S. W. 667, we held that the consti- ed in this case. Observing the general rules tutional mandate to the Legislature “to pro- of interpretation in determining whether a vide for the education of the blind necessa- given constitutional provision is mandatory. rily carried with it the power to create what or whether it is merely directory and offices the Legislature might deem necessary cautionary to the Legislature, we are of the to carry out the power conferred," without opinion that this provision falls within the offending against the provision, just quoted, latter class. The command is to the Legagainst the creation of permanent offices. islature itself, and it necessarily involves That case, however, did not involve the de- the power to determine the necessity for crecision of the question now before us, but was ating a temporary office and to determine a mere declaration of the principle that the whether the work to be done is not of a temConstitution contained a mandate to create porary or permanent nature. It falls, we the particular office then under considera- think, within the class of provisions like tion, and did not, for that reason, if for no that which forbids the Legislature to enact other, fall within the provision we are now a special law, where a general law can be inquiring into.

made applicable (section 24, art. 5, ConstiIt is insisted, by those who challenge the tution), and we have held that class of provalidity of the act, that the banking busi- visions to be directory and merely cautionary ness is necessarily one of a permanent na- to the Legislature. Davis v. Gaines, 48 Ark. ture; that the creation of this department 370, 3 S. W. 184; Carson v. St. Francis Levee is necessarily permanent; - and that it District, 59 Ark. 513, 27 S. W. 590; Powell amounted to a clear subterfuge for the Leg- v. Durden, 61 Ark. 21, 31 S. W. 740. On islature to attempt to make it otherwise than this subject Judge Cooley, in his work on permanent by thus limiting its duration to Constitutional Limitations, spoke as follows: a given period of time. Attention is called "The important question sometimes presents to the fact that the General Assembly, at the itself whether we are authorized in any case, same session, created several other new de- tion is arrived at, to give it such practical con

when the meaning of a clause of the Constitupartments, one to last for 50 years, and that struction as will leave it optional with the dethat was done upon the theory that the leg. partment or officer to which it is addressed to islative declaration made it a temporary, obey it or not as he shall see fit. In respect to and not a permanent, office. It is urged that provisions may be regarded as directory merely,

statutes, it has long been settled that particular these were niere attempts on the part of by which is meant that they are to be considerthe Legislature to evade a plain mandate of ed as giving directions which ought to be folthe Constitution by calling offices temporary lowed, but not as so limiting the power, in re

spect to which the directions are given, that which are in fact permanent in their nature, it cannot effectually be exercised without oband which are designed to embrace perma- serving them.” Cooley's Constitutional Liminent fields of activity. The argument is not tations, p. 109. without force.

Now, there are many undertakings which On the other hand, it is urged by learned can readily be called to mind in the performcounsel for appellees, who seek to defend the ance of particular tasks, such as building a statute, that the framers of the Constitution state capitol, or constructing a certain highhaving divided the government into three way, and the like, where it would be plain branches, which were deemed necessary to to any investigating tribunal that the work the continued existence of government and to be undertaken temporary, of handling the business of the state the though it stretched over a considerable pewords "permanent office” referred to those riod of time; but there might be many borthings which were then deemed to be the per- der-line cases where it would be more diffimanent functions of government, and that cult to determine whether the work was temthe banking department, as organized in this porary or permanent; and we are of the statute, is not of those branches of govern- opinion that this command is one necessarily ment, and that it necessarily falls outside of addressed to the Legislature itself, and that the term “permanent office," as expressed in branch of government must determine how the Constitution.

far it can exercise its powers without disWe find ourselves unable to agree with el- obeying that command. ther side in the reasoning upon the proposi- We attach little, if any, importance to the tion involved, but conclude that the inquiry provision of the statute limiting the time to turns in another direction.

12 years, for we think that the Legislature The framers of the Constitution obviously has the power to determine whether an did not intend to place an absolute prohibi- office to be created is permanent or tempotion against the creation by the Legislature rary, whether expressly declared in the act of offices not expressly provided for. The or not. If it is created as a temporary ofprohibition only reaches to the creation of fice, we must assume that the Legislature permanent state offices. That being true, found it to be such. The creation of the ofthe question arises: Who is to be the judge fice implies a determination that it is temof the question of permanence of an office, porary and not permanent. or the necessity for its temporary existence? [2] There can be no irrepealable laws The answer to this question, we think, re- which depend for existence entirely upon the



legislative will, and any office created by the from another for intoxicating liquors in proLegislature is temporary in the sense that it hibition territory and transmits it, in person is subject to the legislative will and may be or otherwise, to a dealer in intoxicating liquors,

who accepts and fills the same. Held that, abolished at any time. Those who take such where accused, about to make a trip from protemporary offices as may be created by the hibition territory to a place where liquor was Legislature do so with notice of the insecure lawfully sold, was requested by H. to purchase tenure, and the acceptance of the office cre

for him four quarts of whisky, and accused

purchased the whisky in license territory, and ates no contract with the state. Humphry brought it back into prohibition territory, and V. Sadler, 40 Ark. 100.

delivered it to the person making the request, We are of the opinion, therefore, that this as a mere matter of accommodation, he was provision of the Constitution, when rightly in license territory, who filled the same, and

guilty of transmitting an "order" to a dealer interpreted, constitutes a command to the was therefore punishable under the act. Legislature, with authority to determine (Ed. Note.-For other cases, see Intoxicating when temporary offices are needed, and that Liquors, Cent. Dig. $$ 159, 160, 163; Dec. Dig. $ the determination of that question by the

146.* Legislature will be observed by the courts. First and Second Series, Agent.]

For other definitions, see Words and Phrases, It would be an usurpation of power by the

2. INDICTMENT AND INFORMATION (8 125*)courts to assume authority which had been

OFFENSES–DIFFERENT COUNTS. delegated to the Legislature itself.

Where accused was charged with soliciting [3] The fears expressed by learned coun- an order for intoxicating liquors in prohibition sel that this interpretation of the constitu- territory and with receiving and transmitting tional provision leaves it within the power same, both of which acts were prohibited by

such order to a liquor dealer, who filled the of the Legislature to create new offices, ad Acts 1907, p. 326, they should have been charg. libitum, even to the extent of providing for ed in different counts in the indictment. a deputy governor, another auditor or secre

[Ed. Note.-For other cases, see Indictment tary of state, or additional courts, is entirely and Information, Cent. Dig. $$ 334-400; Dec.

Dig. $ 125.*) unfounded, for the Constitution itself ex.

3. INTOXICATING LIQUORS ($ 146*)— WRONGhausts the power of creating offices which

FUL SALE—"ORDER." are provided for in that instrument, and the The word “order," as used in Acts 1907, implication is sufficiently manifest that no p. 326, prohibiting the solicitation of orders for more are to be created.

the sale of intoxicating liquors in prohibition [4] Again it is said that the statute, in territory, means a commission to purchase, sell,

or supply goods, and is satisfied by an oral attempting to authorize the bank commis- request of a third person that accused obtain sioner to take charge of insolvent banks, is liquor for him and bring it into such prohibiunconstitutional as an invasion of the pow

tion territory. er of the chancery court to appoint receivers. Liquors, Cent. Dig. &$ 159, 160, 163; Dec. Dig. 8

[Ed. Note.-For other cases, see Intoxicating We think that the original jurisdiction 146.* of the chancery courts, as preserved by our For other definitions, see Words and Phrases, Constitution, does not prevent the Legisla- First and Second Series, Order.] ture from entering upon the supervision of Smith, J., dissenting. any matters which fall within the police

Appeal from Circuit Court, Lee County; power. This act does not attempt a redis

J. M. Jackson, Judge. tribution of judicial power, but it provides

J. M. Brewer was indicted for soliciting an for a system of supervision which has noth

order from another person for intoxicating ing to do with the judicial function.

The chancery court was correct in sustain- liquors in prohibition territory and transmiting a demurrer to the complaint, and the ting the order to a licensed liquor dealer at decree is therefore affirmed.

another place, who accepted and filled the

same, and, from a judgment finding him not KIRBY, J., dissents.

guilty on agreed facts, the State appeals. Reversed and remanded for a new trial.

Wm. L. Moose, Atty. Gen., and John P.

Streepey, Asst. Atty. Gen., for the State. STATE v. BREWER. (Nos. 110, 128.)

Roleson & McCulloch, of Marianna, for ap(Supreme Court of Arkansas. July 13, 1914. pellee.

On Rehearing, Sept. 28, 1914.) 1. INTOXICATING LIQUORS (8 146*) – WRONG- McCULLOCH, C. J. In the indictment in FUL SALE-SOLICITING ORDERS-TRANSMIT- this case the defendant is charged with soTING ORDER TO LIQUOR DEALER-STATUTES, liciting an order from another person for CONSTRUCTION—'AGENT.'

Acts 1907, p. 326, § 1, makes it unlawful intoxicating liquors in prohibition territory, for any liquor dealer to in any manner, through and also with receiving such an order in agents, circulars, etc., solicit orders for the prohibition territory and transmitting said sale of intoxicating liquors in any territory where sales are prohibited, and section 2 de- order to a licensed liquor dealer at another clares that the presence of any such liquor place, who accepted and filled the order. dealer, through agents or otherwise, in such pro- [1] The case was tried upon an agreed hibition territory, soliciting or receiving orders from any person therein, shall constitute a vio- statement of facts before the court sitting as lation of the act, and that the term "agent” a jury, and the court found in favor of de shall mean any person who receives an order | fendant, and the state appealed.

*For other cases see same topic and section NUMBER in Dec. Dig. & Ám, Dig. Key-No. Series & Rep'r Indexe.

The statute on which the indictment was, modation to the person who gave him the or. based reads as follows:

der and was the agent of the purchaser, and "Section 1. It shall be unlawful for any liq- not of the seller. That, however, does not uor dealer, firm or corporation engaged in the afford an avenue for escape from the terms sale of intoxicating liquors in this state, to in of the statute, for it unmistakably declares any manner, through agents, circulars, posters, or newspaper advertisements, solicit orders for that any person who receives an order and such sales of intoxicating liquors in any ter- transmits it to a dealer, who fills it, is ritory in this state wherein it would be unlaw-guilty of an offense. ful to grant a license to make such sales: Provided, that the term 'newspaper advertisements,'

The statute, in that view of it, is a very as used in this section, does not refer to liquor drastic one, but with the policy of it we have advertisements in papers published within li- nothing to do. The Legislature has power to censed territory, unless said papers are sent declare such an act to be a criminal offense. into prohibition territory by the saloon keepers This is manifestly what the Legislature or their agents for advertising purposes.

"Sec. 2. The presence of any such liquor meant by the language incorporated in the dealer, firm or corporation, through agents or statute, and its drastic effect is not sufficient otherwise, in such prohibition territory, solicit- to lead us into a plain disregard of the leging or receiving orders from any person therein shall constitute à violation of this act, and islative mandate. on conviction thereof shall be fined not less The decisions of this court in State v. than two hundred dollars, por more than five Earles, 84 Ark. 479, 106 S. W. 941, and Van hundred dollars, for each such offense: Provided, that the term 'agent, under this section, Valkinburgh v. State, 102 Ark. 16, 142 S. W. shall mean any person who receives an order 843, clearly indicate this interpretation of from another for intoxicating liquors in prohibi- the statute. A similar thought was expresstion territory, and transmits the same in per-ed by the Supreme Court of the United States son, by letter, telegraph or telephone, or in any in the case of Silz v. Hesterberg, 211 U. S. other manner, to some dealer in intoxicating liquors, who accepts and fills the same." Act 31, 29 Sup. Ct. 10, 53 L. Ed. 75, in passing No. 135 of the Acts of 1907.

upon the constitutionality of a New York It was agreed that the defendant had re- statute for the protection of wild game in ceived an order in prohibition territory for that state, and which made it a criminal offour quarts of whisky; that he carried that fense for any person to have possession of order, and money with which to pay for the such game within the closed season. The whisky, to a licensed dealer at Helena, Ark., court, speaking through Mr. Justice Day, and brought back the liquor and delivered it said: to the person who gave him the order in pro "It is contended, in this connection, that hibition territory.

the protection of the game of the state does The purpose of the statute is primarily to not require that a penalty be imposed for the

possession out of season of imported game of prevent licensed liquor dealers and their the kind held by the relator. It is insisted that agents from soliciting orders for intoxicating a method of inspection can be established which liquors in prohibition territory, and from will distinguish the imported game from that

of the domestic variety, and prevent confusion even accepting such orders when voluntarily in its handling and selling. That such game tendered. In order to carry out that design, can be distinguished from domestic game has the Legislature doubtless deemed it neces- been disclosed in the record in this case, and sary to put in a provision which would pre- all that would be required for the protection of

it may be that such inspection laws would be vent evasions, and to do so they declared domestic game. But, subject to constitutional that the term "agent" "shall mean any per-| limitations, the Legislature of the state is auson who receives an order from another for thorized to pass measures for the protection of

the people of the state in the exercise of the intoxicating liquors in prohibition territory police power, and is itself the judge of the and transmits the same in person, by let- necessity or expediency of the means adopted. ter,” etc.,

to some dealer in intox- | In order to protect local game during the closed icating liquors who accepts and fills the season, it has been found expedient to make

possession of all such game during that time, sa me."

whether taken within or without the state, a Now, it is not necessary, in order to con: misdemeanor." vict a person under this statute, to show The statute was held to be valid. that he was in fact acting as agent of a [2] The facts are undisputed that defendliquor dealer when he solicited or received ant received an order in prohibition terrian order for intoxicating liquors, for the ef- tory and in person transmitted it to a liquor fect of the statute is to make it an offense dealer, who filled the order, and he is guilty for any person, whether in fact the agent of under the statute quoted. The indictment in a dealer or not, to solicit orders in prohibi- this case charges both soliciting an order and tion territory or to receive such orders and receiving and transmitting such order, transmit the same. The mere solicitation of [3] The two offenses, or rather the two an order without the same being filled is suf- methods of committing the same offense, ficient to make out an offense, or where, as in should have been incorporated in different this case, the order is not solicited, the mere counts of the indictment, but no question was acceptance and transmission of the order to raised as to the form of the indictment. The any dealer is sufficient if the order is accept- evidence does not show that the defendant ed by the dealer and filled.

solicited the order, but, as before stated, it It is said that, under the facts in this case, does show that he received the order and the defendant was merely acting for accom- | transmitted it to a dealer, who filled it.

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In the Earles Case, supra, we held that the or receive an order in prohibition territory. indictment, which was similar to the in- The purpose of the statute is to prohibit subdictment in this case, charged the defendant terfuge by declaring one who receives an with soliciting and transmitting the order, order to be the agent of any dealer to whom but that the evidence showed that he sold the the order may be transmitted. Thus the law liquor, and that that constituted a variance, of agency is changed by the statute, and which prevented a conviction in that case, the statutory definition of he word "agent" The facts in that case were that defendant, is applied to the circumstances described. after soliciting orders, purchased the liquor We adhere to our former conclusion that in packages of five gallons from a distiller, the facts stated in the opinion make out a and then filled the orders which he had re- case against the defendant for receiving an ceived, and that in that case he was guilty order in prohibition territory. of selling liquor, instead of receiving and Rehearing is denied. transmitting the orders. In other words, the facts in that case were that he purchased the liquor and resold it, and was guilty of a sale, and not of the receiving and transmit

CARTER v. GOODSON et al. (No. 61.) ting of the order, whereas in the present (Supreme Court of Arkansas. June 22, 1914.) case the defendant did not purchase the liq. 1. ADVERSE POSSESSION ($ 115*) QUESTION uor and resell it in prohibition territory, but FOR JURY-PRESUMPTION OF GRANT. he received an order in that territory and The presumption of a grant from long-contransmitted it, which made him guilty under tinued possession is one of fact, for the jury or

court trying the case. the statute quoted.

[Ed. Note.-For other cases, Adverse Our conclusion is that the court erred in Possession, Cent. Dig. $S 314, 691-701 ; Dec. its finding, and the judgment is reversed, and Dig. $ 115.*] the cause remanded for a new trial.


Evidence in ejectment for land originally SMITH, J., dissents.

patented to the state as swamp land held to

justify a finding of a grant by the state to deOn Rehearing.

fendant's predecessors in title.

(Ed. Note.-For other cases, see Ejectment, McCULLOCH, C. J. It is urged that we Cent. Dig. 88 280-295; Dec. Dig. $ 95.*] erred in the assumption of fact that the defendant received and transmitted an "order"

Appeal from Circuit Court, Yell County; for whisky. The recital of the agreed state- Hugh Basham, Judge. ment of facts is that, at the time and place

Ejectment by E. L. Carter against A. L. named, the defendant "was about to take a

Goodson and others. Judgment for defendtrain to Helena, Ark., and that James Hobart ants, and plaintiff appeals. Affirmed. approached him and requested that he pur- This is an action of ejectment by E. L. Carchase for him (the said James Hobart), in ter against A. L. Goodson, Jacob Goodson, Helena, four quarts of whisky," and the de- and Mrs. Laura West, to recover the possesfendant went to Helena, purchased the sion of the N. W. 14 of the N. E. 14 of sec. whisky from a licensed liquor dealer, and tion 6, township 4 N., range 20 W., 47.41 carried it back to Marianna and delivered it acres of land, in Yell county, Ark. The to Hobart.

facts are as follows: An order, speaking in commercial termi. The land in controversy was originally nology, is merely a proposal or request, and swamp land, and a patent therefor was er. that is the sense in which the word is used ecuted by the United States to the state of in the statute. One of the definitions given Arkansas. The plaintiff, Carter, purchased by Webster is: “A commission to purchase, the land from the commissioner of state sell, or supply goods.” The request of Ho- lands, and obtained a deed from the state for bart, therefore, amounted to an order. The the land on September 27, 1911. Richard statute does not require that the order be in Ellison, for the defendants, testified: writing. In fact, the language of the stat

"I knew Eppy White in 1856, and he lived on ute, read as a whole, excludes the idea that the land to one Jeffreys, and Jeffreys then mov;

the land in controversy. In 1857 White sold the order must be in writing before there ed on it. At that time there was a house and can be a violation of law. Under any other some improvements on the land. The house reinterpretation of the word, the liquor dealer mained there until it was destroyed during the himself would not be guilty of any violation Jeffreys sold the land to my father, John J.

latter part of the Civil War. After the war hy receiving a verbal order for whisky in Ellison;. but father never moved on the land. prohibition territory. If the request to pur- At the time Jeffreys sold the land to my father, chase liquor would not amount to an order When my sister, Laura West, married, my fa

he sold another tract, containing 40 within the meaning of the statute, then that ther gave the land to her, and she and her husclause of the statute is meaningless and band moved on it, and have resided there ever without any force whatever, for the preced- since. Neither my father, my sister, nor her ing clause makes it unlawful for one, who is my sister together bave paid the taxes on the

husband could read or write. My father and in fact the agent of a liquor dealer, to solicit land since the Civil War. I was accustomed *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes


to looking over my father's papers for him, and , and that the suit was settled by compromise my recollection is at one time I saw a patent between the parties. from the state of Arkansas to Eppy White for the land in controversy.

I also saw a deed

The case was tried before the court sitting · from White to Jeffreys, and my recollection is without a jury, and judgment was rendered the deed called for both the N. W. 14 of the N. in favor of the defendants. Plaintiff has apE. 14 and the N. E. 14 of the N. E. 14 of sec- pealed. tion 6, township 4 N., range 20 W. Jeffreys conveyed both of these tracts of land to my Samuel Frauenthal, of Little Rock, for apfather. None of these deeds were ever record- pellant. Priddy & Chambers, of Danville, and ed, and they were in possession of my father or sister when I last saw them."

J. F. Sellers, of Morrillton, for appellees. The defendant Laura West testified that her father gave her the land when she mar

HART, J. (after stating the facts as above). ried in 1866, and that she has lived on it and [1] Counsel for defendant seek to uphold the cultivated it ever since. She testified that judgment upon the doctrine of the presumpshe recollects seeing deeds which were de- tion of a grant after a long lapse of time. livered to her as deeds to the land in con

In discussing this question, in the case of troversy; that she cannot now find the deeds; Fletcher v. Fuller, 120 U. S. 534, at page 545, that her husband at one time assorted out ? Sup. Ct. 667, at page 673 (30 L. Ed. 759), some papers in his trunk and burned some

Mr. Justice Field, speaking for the court, of them; that this is the only way she can

said: account for the absence of the deed now, continued, they create a presumption of lawful


possession and use are long Other witnesses for the defendants testified origin; that is, that they are founded upon that Mrs. Laura West had resided on the such instruments and proceedings as in law land since her father gave it to her until the would pass the right to the possession and use

of the property. present time.

It may be, in point of fact,

that permission to occupy and use was given Eppy White, Jeffreys, John J. Ellison, and orally, or upon a contract of sale, with promthe husband of Laura West were all dead ise of a future conveyance, which parties have when this action was commenced. It was subsequently neglected to obtain, or the conveyalso shown that there was in the county so as to be recorded, or may bave been mislaid

ance executed may not have been acknowledged, clerk's office a record book containing a cer

or lost.

Many circumstances may prevent the tificate from the state auditor of lands, dated execution of a deed of conveyance, to which November 24, 1868, showing that the N. W. the occupant of land is entitled, or may lead

to its loss after being executed.” * of the N. E. 44 of 6–4–20, 47.40 acres, was entered by Eppy White, and was subject

Again (120 U. S. at page 551, 7 Sup. Ct. at to taxation.

page 676 [30 L Ed. 759]) the learned judge On the part of the plaintiff, the commis

said: sioner of state lands testified that the records

"The general statement of the doctrine, as

we have seen from the authorities cited, is that in his office showed that there was an appli- the presumption of a grant is indulged merely cation by Eppy White, numbered 41, and dat- to quiet a long possession which might othered August 13, 1857, for the purchase from the wise be disturbed by reason of the inability of state of the N. E. 44 of the N. E. 44 of section which were actually given at the time of the ac

the possessor to produce the muniments of title, 6, township 4 N., range 20 W., and also that quisition of the property by him or those unthe records of his office show that a patent der whom he claims, but have been lost, or was issued to him for said land, and that which he or they were entitled to have at that

time, but had neglected to obtain, and of both in the application and the record show- which the witnesses have passed away, or their ing the sale of the land the number of acres recollection of the transaction has become dimwas described as 47.41 acres. He also stated med and imperfect. And hence, as a general that the original plat book was still in the rule, it is only where the possession has been ac

tual, open, and exclusive for the period preland office and that the N. W. 44 of the N. E. scribed by the statute of limitations to bar an 44 of 6-420, the land in controversy, is action for the recovery of land, that the premarked “S”; that the practice was, when a sumption of a deed can be invoked. But the subdivision of lands was sold by the state, of this character is the notoriety it gives to

reason for attaching such weight to a possession to place the letter "S” on the subdivision the claim of the occupant; and, in countries sold; that in his judgment the placing of the where land is generally occupied or cultivated, letter "S" on the N. W. 14 of the N. E. 14 of it is the most effective mode of asserting ownthe section in question was a clerical error,

ership." because the records of the land office con

In United States v. Chaves, 159 U. S. 452, tained no other evidence of the sale of the 16 Sup. Ct. 57, 40 L. Ed. 215, Mr. Justice land to any one except the sale made to Car- Shiras, after discussing the question of fact ter in 1911. He also stated that the records as to whether or not the evidence was suffiin the state land office showed that the N. E. cient to show affirmatively that the claimant y of the N. E. 44 of 6–4–20 was purchased obtained title from the Mexican governby Oscar Winn on December 15, 1904, and ment, said, in reference to the power of the that a refunding certificate was issued to court to presume a grant upon proof of longWinn for said land on September 22, 1911. continued possession, the following: Other evidence shows that suit was commenc- such a question, because, as we have seen, there

"It is scarcely necessary for us to consider ed by him for the possession of the land so ample evidence from which to find that these purchased by him against Mrs. Laura West settlers were put in juridical possession under

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