(216 S.W.)

to the power ordained by the Constitution. | of 1919 creating the Arkansas Corporation It is manifest that the only object of spe- Commission-the same question decided in cifically defining the duties of an office in the case of Helena Water Co. v. City of Hela Constitution is to limit or restrict the pow- ena, 216 S. W. 26. The only difference in er of the Legislature in this respect; other- the two cases is that in the present one apwise, the amendment might just as well not pellant introduced as witnesses the secretary, have been adopted. of the Senate and the journal clerk of the Senate to prove orally that the Senate did not recede from the two amendments, which, according to the records, were adopted by the Senate, but do not appear in the engrossed bill nor the enrolled statute.

It was evidently intended by defining the duties of the office or commission to make them fixed and permanent, and thus to place the subjects to which they relate altogether beyond legislative control. If the Legislature has the power to abolish a constitutional office and add its duties to another office with other and foreign duties, it is evident that the Legislature could take away all or a part of the duties that naturally belong to the office. Under the majority opinion, if the next or any succeeding Legislature should repeal the statute creating the Arkansas Corporation Commission, without reviving by express words the statute creating the Railroad Commission, the latter office or commission would be abolished although it is a constitutional office with well-defined duties. Thus, indeed, by indirection, would the organic law of the land be superseded by the Legislature. It is no answer to this to say that no Legislature will likely do this, for we are dealing with the question of power, and not that of the mind or will of the Legislature; and that no man may know.

(Supreme Court of Arkansas. Dec. 1, 1919.)

1. COMMERCE 40(1)—CORPORATIONS 642 (1) TRADE CAMPAIGN AS DOING BUSINESS WITHIN THE STATE.

A transaction between a foreign corporation and a dealer in the state, whereby the er's benefit what was designated as a "trade corporation undertook to carry on for the dealcampaign," the amount of compensation to be received by the corporation being dependent on the amount of increase in the dealer's sales, constituted the doing of business within the state and not interstate commerce, although the sale of certain articles of merchandise, as

FREER et al. v. FT. SMITH LIGHT & premiums, was an incident.
TRACTION CO. et al. (No. 16.)

(Supreme Court of Arkansas. Dec. 1, 1919.)
STATUTES 284-No REBUTTAL BY PAROL OF
PRESUMPTION OF REGULARITY OF STATUTE.

In determining the validity of a statute, evidence outside the record, consisting of the oral testimony of the secretary of the Senate and its journal clerk, that the Senate did not recede from two amendments which according to the records were adopted, but do not appear in the engrossed bill or the enrolled statute, is inadmissible to overcome the presumption of regularity arising from the enrolled statute.

Appeal from Sebastian Chancery Court; J. V. Bourland, Chancellor.

Suit between B. Wayne Freer and others and the Ft. Smith Light & Traction Company, the Arkansas Corporation Commission, and others. From decree for the latter, the former appeals. Affirmed.

2. CORPORATIONS

661(3)—ASSIGNEE OF CORPORATION FAILING TO FILE ARTICLES CANNOT SUE.

Where a foreign corporation, doing business within the state, fails to file its articles of incorporation not only the offending corporation, but its assignee, is prohibited from maintaining suit in the state without having first complied with the laws of the state.

Appeal from Circuit Court, Sebastian County; Paul Little, Judge.

Action by F. W. Dean, trustee, against W. O. Caldwell. Judgment for defendant, and plaintiff appeals. Affirmed.

T. P. Winchester and W. R. Martin, both of Ft. Smith, for appellant.

Warner, Hardin & Warner, of Ft. Smith, for appellee.

MCCULLOCH, C. J. This is an action inCovington & Grant, of Ft. Smith, for appel- stituted by appellant on negotiable notes ex

lants.

Tom W. Campbell, of Little Rock, and Hill & Fitzhugh, of Ft. Smith, for appellees.

PER CURIAM. The sole question involved in this case relates to the validity of the act

ecuted by appellee to Partin Manufacturing Company, a foreign corporation which has not complied with the laws of this state with respect to filing copies of articles of incorporation, etc. Appellant is trustee for the assignees of Partin Manufacturing Company.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

32

30

216 SOUTH' conferred in the amendment, and powers are enumerated. The Legis could give the office a different nam vary the duties as by increasing or ing the penalties, but the office itself expressly provided for in the Const when created, becomes a constitutio fice; and its duties, being expressly a cifically provided for in the Constitu self, cannot be enlarged, diminished, c away by the Legislature. If this v

so and the office could be abolished duties attached to another office, authority of the Constitution would ject to the authority of the Legislat grant of the office is expressly fixe Constitution, its duties are specifi

scribed by the Constitution, and necessarily an implied prohibitio interfering with it in these respect

those

The effect of the majority opi change by act of the General Ass which is ordained by the Constit Legislature must act in subordinɛ Constitution; and it does not can abolish a constitutional offi fined duties and attach temporary office. It would at lea vain and idle provision of a to secure to the people in man an office or commission and t define its duties, and at the sar it to the Legislature to abolish to attach its duties to a st which might be abolished at ar an intention should not be a people in adopting the amend the C tion. In short, when pressly provides for an office terms defines its powers and d lature is powerless to aboli large, or diminish that whic by the paramount law of th In recognition of this pri v. Askew, 48 Ark. 82, 2 S. T held that the Legislature ▾ enlarge or abridge the co of an office, and that any would be a plain usurpatic in F: was also recognized 37 Ark. 386, where the co office of collector of taxes tive control because the C

shou

ed that the sheriff
taxes until otherwise prov
Equ
In the Board of
Ark. 518, 6 S. W. 1, the
office of assessor was a
and that the Legislatur
or make it a sinecure, f
the selection of the offi
teed to the electors an
the
further held that
might be varied by th
the Constitution creat

The ames were evented by mpelee pur-notes are to be ca SIEM IP & Vika salat leve him and chaser. Partin Mantiscuring Company, as follows: "Excinave Dng Center for Ft. Smith. "Form 16

"(4) In considerat set forth in your plei ments herein conta be countermanded, bro and date hereof. A C. ment not embraced b

"Gesieral Offices has a Commerce and Trust, on Partin Mfg. Co. I
a full and complete
ditions herein and at
"Campaign closes C

"Parti Mantiscong Traming-Gatlemen:
* 3-27-17.
Please Bucyrae alvenience,
fat fumy te iwing goods as de-
scribed being

"Capra monte 2 passenger. 4 cylinder ronomer De putter is to deliver winner in thE THE DOOR the winner's ebrace of me of the fog atomobiles: • Be flow ages to be used as prizes, including me armonie, and various articles of jewer at sitervere]

1

ground that Partin M The trial court garf tory instruction in fr was a foreign corpore state, transacted the br out having complied of which appellee's 21 contention of appella our acre. Lostrated ban- commerce, and was no action between appelle FI athlete set of dis-of state laws. facturing Company c play sign caro gag rules for Conducting CaCONT

“Primer and bring Matter.
“Twenty-fire zw
pers; one cums

letters; one secure 1 ers: one thou-
me ses of nominating fore, on the question
[1] The decision of the a
Band trade carta, diy cd certificates.

2-11-17.

transaction was inters pra *(1) The dengue paser warrants interstate commerce. It that his eties for the pet were months were sale of goods to be sto seems clear to us that the $2.500.55. O sway of sales, Partin state. The sale of cera Manufacturing Company any agrees to in-chandise was a mere fr crease the pureuser ses and collections not purpose of the contract fe less than $22.000.3 The next twelve months. whereby Partin Manufacture Partin Miz. Ca. prees a refund six cents dertook to carry on. ford on every solar the purser fails short of what is designated in the w nie the $15.000.00 increase and agrees to send their! bond to poraser's tank in the sum of $900.00 to guarantee this agreement Partin Mfg. Co. reserves the right to base the number of premiums wittent cut to the purchaser, if in their opinion it is necessary to bring about the above guaranteed is. Partin Mfg. Co. reserves the right to retire a first and second choice of cars. Partin Miz Co. agrees to send a personal representative to assist in getting candidates and beiging start this trade campaizo.

(2) To make this contract binding on Partin Mfg. Co. and as conditions precedent to any recovery under the provisions of paragraph (1) the undersigned purchaser agrees to accept the goods described above promptly on arrival; keep the goods well displayed in his place of business, to pay all obligations entered into under this contract at maturity; to report every thirty days bis gross sales for one year; follow out instructions and furnish such other information as Partin Mfg. Co. may desire, including verifed final reports furnished by ParLe Miz Co.

13 Terms: All the above named goods are to be included in the purchase price of $900.00. Three per cent. off, cash in ten days. By special agreement the above can be paid in four instalments of two hundred and twenty-five de ars ($22500) each, in one, two, four, six, eight months, if notes attached hereto properly named accompanying this contract, and Partin Mfg. Co. is authorized to detach same on acceptance of same. If contract is not accepted

११.

b

campaign." Appellee was city of Ft. Smith, and his s vious year had been $218Manufacturing Company contract, for a considerat plan and the means to th annual sales not less than Manufacturing Company literature for advertising the articles for the prices 17 "send personal representat getting candidates and he trade campaign." The camp carried on in Ft. Smith, when doing business, and the ame tion to be received by Part 1

it

IN

increase in appellee's sales tion was purely local. The t Company was dependent on 2 tra and not inter state, and th was merely an incident. Th side of the state, but even would not alter the character not necessarily imply a shipm transaction, to which the sale sions of the Supreme Court a mere incident. States in Browning v. WaycrossThis conclusion is supported 34 Sup. Ct. 578, 58 L. Ed. 8Railway Signal Co. v. Virginia

th

(216 S.W.)

12 L. Ed. 854. The ques- | fense, even if testimony is circumstantial and ent form in those cases, instruction as to circumstantial evidence was nnounced are the same properly refused, where testimony was not wholly or chiefly of circumstantial character.

e.

6. CRIMINAL LAW

1170(2)-EXCLUSION OF

EVIDENCE HARMLESS ERROR.

Manufacturing Co. v. 38 Sup. Ct. 430, 62 L. learned counsel for ap- Exclusion of testimony as to statement by applicable. defendant's accomplice to officers at time of his tutes, not only the offend-arrest was harmless, where the accomplice himst its assignee, is prohibit-self testified to what he had told the officers, 1g suit in this state with-giving substantially same testimony as that omplied with the laws of

v. Intertype Corporation, 3. W. 58.

hed.

V. STATE. (No. 212.)

of Arkansas. Nov. 17, 1919.) w 1144(3)-PRESUMPTION E IN EVIDENCE OF OWNERSHIP

NTERED.

prosecution where variance, if
legation that building broken
rty defendant had intended to
to M. Railway Company, and
owner to be M. Railroad Com-
d by defendant's counsel, it will
ippeal, as against objection that
himself could have waived ob-
point had not been waived proof
d have been offered that the two
ld have been recognized as the
on in the community.

LAW⋅ 792(3)-PERSON AIDING
NG BURGLARY A PRINCIPAL.

y prosecution, instruction to con-
aplice entered the building and
erty, and "defendant was present,
etting, or ready and willing to aid
eld proper as against objection
rized conviction under testimony
defendant an accessory, since de-
present aiding and abetting, or
ling to aid and abet, was in fact a
Her Kirby's Dig. § 1563.

LAW

780(3)-INSTRUCTION ON

TION OF ACCOMPLICE.

ary prosecution, instruction as to n of testimony of accomplice held uirement of statute.

excluded.

Appeal from Circuit Court, Howard County; Jas. S. Steel, Judge.

Wayne Bartlett was convicted of burglary, and he appeals. Affirmed.

D. B. Sain, of Nashville, for appellant.
Jno. D. Arbuckle, Atty. Gen., and Robert
C. Knox, Asst. Atty. Gen., for the State.

SMITH, J. Appellant seeks by this appeal to have reversed the judgment of the Howard circuit court sentencing him to a term of 3 years in the penitentiary upon a charge of burglary. The indictment charged that the property which appellant intended to steal was an iron chest of the value of $10 and $125 in gold, silver, and paper money, all being the property of the Missouri Pacific Railway Company, a corporation, and one gun, the property of the United States government, of the value of $25. The indictment also alleged that the building broken into was "a certain station house owned and occupied by the Missouri Pacific Railway Company, a corporation."

In stating the case to the jury instruction No. 1 referred to the stolen chest and money as the property of the Missouri Pacific Railway Company, whereas the testimony showed that this was the property of the Missouri Pacific Railroad Company, and objection is made that there was a variance between the allegation and the testimony. The objection was made at the trial, but was waived at the time by counsel representing appellant at the trial, but it is now insisted that only the appellant himself could waive the point.

In the case of Brown v. State, 108 Ark. 336, 157 S. W. 934, the indictment alleged that the stolen property belonged to the St. Louis Southwestern Railroad Company, and the proof showed that at the time of the

Y 16-GUILT WITHOUT ENTER- larceny the goods were in the possession of

UILDING.

o stayed outside of building and ile his accomplice entered the buildrried away the stolen goods was rglary.

the St. Louis Southwestern Railway Company, and it was there insisted that there was a fatal variance between the allegation of ownership and the proof thereof. It was shown by the testimony, however, that the alleged owner was sometimes spoken of as the railroad and at other times as the railway, and that persons living in the commuf accused is not required to be estab-nity understood what company was used when exclusion of every other hypothesis it was referred to by either designation. accused committed the charged of- We there said that

L LAW 552(3), 814(17) — IN-
N AS TO CIRCUMSTANTIAL EVIDENCE

Y REFUSED.

or other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 16 S.W.-3

chaser.

The notes were executed by appellee pur-[ notes are to be canceled and returned to pursuant to a written contract between him and Partin Manufacturing Company, as follows: "Exclusive Drug Contract for Ft. Smith. "Form 10.

"Partin Manufacturing Company. "Chicago. (Incorporated) Des Moines. "General Offices, Bank of Commerce and Trust Building, Memphis, Tennessee.

"Date, 3-27-17. "Partin Manufacturing Company-Gentlemen: Please ship to us at your earliest convenience, f. o. b. factory, the following goods as described below:

"Capital Prize, automobile, 2 passenger, 4 cylinder roadster. The purchaser is to deliver winner in this trade campaign the winner's choice of one of the following automobiles: * [Here follow articles to be used as prizes, including one automobile, and various articles of jewelry and silverware.]

"Printed and Advertising Matter. "Twenty-five two color large, illustrated banners; one thousand handbills; one set of display sign cards; one set of campaign rules for conducting campaign; one set of nominating letters; one set of follow up letters; one thousand trade cards; forty thousand certificates. "2-11-17.

"(4) In consideration of the speciaethods set forth in your plan and the terms a u agreements herein contained, this contract cannot be countermanded, but to stand as given on day and date hereof. Any verbal or written agreement not embraced herein will not be binding on Partin Mfg. Co. This contract is given with a full and complete understanding of the conditions herein and after reading same. "Campaign closes [Club] each 40 days."

The trial court gave to the jury a peremptory instruction in favor of appellee on the ground that Partin Manufacturing Company was a foreign corporation which had, without having complied with the laws of this state, transacted the business in the state out The of which appellee's obligation arose. contention of appellant is that the transaction between appellee and Partin Manufacturing Company constituted interstate commerce, and was not within the control of state laws.

[1] The decision of the case turns, therefore, on the question whether or not the transaction was interstate commerce. It seems clear to us that the contract was not interstate commerce. It was not for the sale of goods to be shipped from another state. The sale of certain articles of mer

"(1) The undersigned purchaser warrants that his sales for the past twelve months were $21,906.29. On this warranty of sales, Partin Manufacturing Company hereby agrees to in-chandise was a mere incident to the main crease the purchaser's sales and collections not purpose of the contract, which was one less than $15,000.00 in the next twelve months. whereby Partin Manufacturing Company unPartin Mfg. Co. agrees to refund six cents dertook to carry on, for appellee's benefit, on every dollar the purchaser falls short of what is designated in the writing as a “trade the $15,000.00 increase and agrees to send their bond to purchaser's bank in the sum of $900.00 campaign." Appellee was a merchant in the to guarantee this agreement. Partin Mfg. Co. city of Ft. Smith, and his sales for the prereserves the right to increase the number of vious year had been $21,926.29, and Partin premiums without cost to the purchaser, if in Manufacturing Company undertook in the their opinion it is necessary to bring about the contract, for a consideration, to provide a above guaranteed increase. Partin Mfg. Co. plan and the means to increase appellee's reserves the right to require a first and second annual sales not less than $15,000. Partin choice of cars. Partin Mfg. Co. agrees to send Manufacturing Company agreed to furnish a personal representative to assist in getting the articles for the prices and the printed candidates and helping start this trade cam-literature for advertising purposes, and to paign.

"(2) To make this contract binding on Partin Mfg. Co. and as conditions precedent to any recovery under the provisions of paragraph (1) the undersigned purchaser agrees to accept the goods described above promptly on arrival; keep the goods well displayed in his place of business, to pay all obligations entered into under this contract at maturity; to report every thirty days his gross sales for one year; follow out instructions and furnish such other information as Partin Mfg. Co. may desire, including verified final reports furnished by Partin Mfg. Co.

"(3) Terms: All the above named goods are to be included in the purchase price of $900.00. Three per cent. off, cash in ten days. By special agreement the above can be paid in four installments of two hundred and twenty-five dollars ($225.00) each, in one, two, four, six,

eight months, if notes attached hereto properly signed accompanying this contract, and Partin Mfg. Co. is authorized to detach same on ac

"send personal representative to assist in
getting candidates and helping start this
trade campaign." The campaign was to be
carried on in Ft. Smith, where appellee was
doing business, and the amount of compensa-
tion to be received by Partin Manufacturing
increase in appellee's sales.
Company was dependent on the amount of
The transac-
tion was purely local. The business was in-
tra and not inter state, and the sale of goods
was merely an incident. The contract did
not necessarily imply a shipment from out-
side of the state, but even if it did, that
would not alter the character of the main
transaction, to which the sale of goods was
a mere incident.

sions of the Supreme Court of the United
This conclusion is supported by the deci-
States in Browning v. Waycross, 233 U. S. 16,
34 Sup. Ct. 578, 58 L. Ed. 828, and General

(216 S.W.)

500, 38 Sup. Ct. 360, 62 L. Ed. 854. The ques-fense, even if testimony is circumstantial and tion in a different form in those cases, instruction as to circumstantial evidence was but the principles announced are the same as in the instant case.

The case of York Manufacturing Co. v. Colley, 247 U. S. 21, 38 Sup. Ct. 430, 62 L. Ed. 963, on which learned counsel for ap- Exclusion of testimony as to statement by pellant rely, is not applicable. defendant's accomplice to officers at time of his [2] Under our statutes, not only the offend- arrest was harmless, where the accomplice himing corporation, but its assignee, is prohibit-self testified to what he had told the officers, ed from maintaining suit in this state with-giving substantially same testimony as that excluded. out having first complied with the laws of the state. Hogan v. Intertype Corporation, 136 Ark. 52, 206 S. W. 58. Judgment affirmed.

4. BURGLARY 16-GUILT WITHOUT ENTER- larceny the goods were in the possession of

the St. Louis Southwestern Railway Company, and it was there insisted that there was a fatal variance between the allegation of ownership and the proof thereof. It was shown by the testimony, however, that the alleged owner was sometimes spoken of as the railroad and at other times as the railway, and that persons living in the commuGuilt of accused is not required to be estab-nity understood what company was used when lished to exclusion of every other hypothesis it was referred to by either designation. than that accused committed the charged of- We there said that

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
216 S.W.-3