ed in this case. Observing the general rules of interpretation in determining whether a given constitutional provision is mandatory. or whether it is merely directory and cautionary to the Legislature, we are of the 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 constitutional mandate to the Legislature "to provide for the education of the blind necessarily carried with it the power to create what offices the Legislature might deem necessary to carry out the power conferred," without opinion that this provision falls within the offending against the provision, just quoted, against the creation of permanent offices. That case, however, did not involve the decision of the question now before us, but was a mere declaration of the principle that the Constitution contained a mandate to create the particular office then under consideration, and did not, for that reason, if for no other, fall within the provision we are now inquiring into. It is insisted, by those who challenge the validity of the act, that the banking business is necessarily one of a permanent nature; that the creation of this department is necessarily permanent; and that it amounted to a clear subterfuge for the Legislature to attempt to make it otherwise than permanent by thus limiting its duration to a given period of time. Attention is called to the fact that the General Assembly, at the same session, created several other new departments, one to last for 50 years, and that that was done upon the theory that the legislative declaration made it a temporary, and not a permanent, office. It is urged that these were mere attempts on the part of the Legislature to evade a plain mandate of the Constitution by calling offices temporary which are in fact permanent in their nature, and which are designed to embrace permanent fields of activity. The argument is not without force. latter class. The command is to the Legislature itself, and it necessarily involves the power to determine the necessity for creating a temporary office and to determine whether the work to be done is not of a temporary or permanent nature. It falls, we think, within the class of provisions like that which forbids the Legislature to enact a special law, where a general law can be made applicable (section 24, art. 5, Constitution), and we have held that class of provisions to be directory and merely cautionary to the Legislature. Davis v. Gaines, 48 Ark. 370, 3 S. W. 184; Carson v. St. Francis Levee District, 59 Ark. 513, 27 S. W. 590; Powell v. Durden, 61 Ark. 21, 31 S. W. 740. On this subject Judge Cooley, in his work on Constitutional Limitations, spoke as follows: "The important question sometimes presents itself whether we are authorized in any case, when the meaning of a clause of the Constitution is arrived at, to give it such practical construction as will leave it optional with the department or officer to which it is addressed to obey it or not as he shall see fit. In respect to statutes, it has long been settled that particular provisions may be regarded as directory merely, by which is meant that they are to be considered as giving directions which ought to be followed, but not as so limiting the power, in respect to which the directions are given, that it cannot effectually be exercised without observing them." Cooley's Constitutional Limitations, p. 109. 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 was temporary, even 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 disobeying that command. We find ourselves unable to agree with either side in the reasoning upon the proposition involved, but conclude that the inquiry turns in another direction. The framers of the Constitution obviously did not intend to place an absolute prohibition against the creation by the Legislature of offices not expressly provided for. The prohibition only reaches to the creation of permanent state offices. That being true, the question arises: Who is to be the judge of the question of permanence of an office, or the necessity for its temporary existence? We attach little, if any, importance to the provision of the statute limiting the time to 12 years, for we think that the Legislature has the power to determine whether an office to be created is permanent or temporary, whether expressly declared in the act or not. If it is created as a temporary office, we must assume that the Legislature found it to be such. The creation of the of fice implies a determination that it is temporary and not permanent. [2] There can be no irrepealable laws legislative will, and any office created by the Legislature is temporary in the sense that it is subject to the legislative will and may be abolished at any time. Those who take such temporary offices as may be created by the Legislature do so with notice of the insecure tenure, and the acceptance of the office cre ates no contract with the state. Humphry v. Sadler, 40 Ark. 100. We are of the opinion, therefore, that this provision of the Constitution, when rightly interpreted, constitutes a command to the Legislature, with authority to determine when temporary offices are needed, and that the determination of that question by the Legislature will be observed by the courts. It would be an usurpation of power by the courts to assume authority which had been delegated to the Legislature itself. [3] The fears expressed by learned counsel that this interpretation of the constitutional provision leaves it within the power of the Legislature to create new offices, ad libitum, even to the extent of providing for a deputy governor, another auditor or secretary of state, or additional courts, is entirely unfounded, for the Constitution itself exhausts the power of creating offices which are provided for in that instrument, and the implication is sufficiently manifest that no more are to be created. [4] Again it is said that the statute, in attempting to authorize the bank commissioner to take charge of insolvent banks, is unconstitutional as an invasion of the power of the chancery court to appoint receivers. We think that the original jurisdiction of the chancery courts, as preserved by our Constitution, does not prevent the Legislature from entering upon the supervision of any matters which fall within the police power. This act does not attempt a redistribution of judicial power, but it provides for a system of supervision which has nothing to do with the judicial function. The chancery court was correct in sustaining a demurrer to the complaint, and the decree is therefore affirmed. KIRBY, J., dissents. STATE v. BREWER. (Nos. 110, 128.) (Supreme Court of Arkansas. July 13, 1914. On Rehearing, Sept. 28, 1914.) 1. INTOXICATING LIQUORS (§ 146*)-WRONGFUL SALE-SOLICITING ORDERS-TRANSMITTING ORDER TO LIQUOR DEALER-STATUTESCONSTRUCTION "AGENT." from another for intoxicating liquors in prohibition territory and transmits it, in person who accepts and fills the same. or otherwise, to a dealer in intoxicating liquors, Held that, where accused, about to make a trip from prohibition territory to a place where liquor was lawfully sold, was requested by H. to purchase for him four quarts of whisky, and accused purchased the whisky in license territory, and brought it back into prohibition territory, and delivered it to the person making the request, as a mere matter of accommodation, he was guilty of transmitting an "order" to a dealer in license territory, who filled the same, and was therefore punishable under the act. [Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. §§ 159, 160, 163; Dec. Dig. § 146.* First and Second Series, Agent.] 2. INDICTMENT AND INFORMATION (§ 125*)— OFFENSES-DIFFERENT COUNTS. Where accused was charged with soliciting an order for intoxicating liquors in prohibition territory and with receiving and transmitting such order to a liquor dealer, who filled the same, both of which acts were prohibited by Acts 1907, p. 326, they should have been charged in different counts in the indictment. [Ed. Note.-For other cases, see Indictment and Information, Cent. Dig. 88 334-400; Dec. Dig. § 125.*] 3. INTOXICATING LIQUORS (§ 146*)- WRONGFUL SALE "Order." The word "order," as used in Acts 1907, p. 326, prohibiting the solicitation of orders for the sale of intoxicating liquors in prohibition territory, means a commission to purchase, sell, or supply goods, and is satisfied by an oral request of a third person that accused obtain liquor for him and bring it into such prohibition territory. [Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. §§ 159, 160, 163; Dec. Dig. § 146.* For other definitions, see Words and Phrases, First and Second Series, Order.] Smith, J., dissenting. Appeal from Circuit Court, Lee County; J. M. Jackson, Judge. J. M. Brewer was indicted for soliciting an order from another person for intoxicating liquors in prohibition territory and transmitting the order to a licensed liquor dealer at another place, who accepted and filled the same, and, from a judgment finding him not 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. Roleson & McCulloch, of Marianna, for appellee. McCULLOCH, C. J. In the indictment in this case the defendant is charged with soliciting an order from another person for 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 deshall mean any person who receives an order fendant, and the state appealed. *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexe The statute on which the indictment was based reads as follows: "Section 1. It shall be unlawful for any liquor dealer, firm or corporation engaged in the sale of intoxicating liquors in this state, to in any manner, through agents, circulars, posters, or newspaper advertisements, solicit orders for such sales of intoxicating liquors in any territory in this state wherein it would be unlawful to grant a license to make such sales: Provided, that the term 'newspaper advertisements,' as used in this section, does not refer to liquor advertisements in papers published within licensed territory, unless said papers are sent into prohibition territory by the saloon keepers or their agents for advertising purposes. modation to the person who gave him the order and was the agent of the purchaser, and not of the seller. That, however, does not afford an avenue for escape from the terms of the statute, for it unmistakably declares that any person who receives an order and transmits it to a dealer, who fills it, is guilty of an offense. The statute, in that view of it, is a very drastic one, but with the policy of it we have nothing to do. The Legislature has power to declare such an act to be a criminal offense. This is manifestly what the Legislature meant by the language incorporated in the statute, and its drastic effect is not sufficient to lead us into a plain disregard of the legislative mandate. "Sec. 2. The presence of any such liquor dealer, firm or corporation, through agents or otherwise, in such prohibition territory, soliciting or receiving orders from any person there in shall constitute a violation of this act, and on conviction thereof shall be fined not less The decisions of this court in State v. than two hundred dollars, nor more than five Earles, 84 Ark. 479, 106 S. W. 941, and Van hundred dollars, for each such offense: Provid- Valkinburgh v. State, 102 Ark. 16, 142 S. W. ed, that the term 'agent,' under this section, 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 No. 135 of the Acts of 1907. It was agreed that the defendant had received an order in prohibition territory for four quarts of whisky; that he carried that order, and money with which to pay for the whisky, to a licensed dealer at Helena, Ark., and brought back the liquor and delivered it to the person who gave him the order in prohibition territory. The purpose of the statute is primarily to prevent licensed liquor dealers and their agents from soliciting orders for intoxicating liquors in prohibition territory, and from even accepting such orders when voluntarily tendered. In order to carry out that design, the Legislature doubtless deemed it necessary to put in a provision which would prevent evasions, and to do so they declared that the term "agent" "shall mean any person who receives an order from another for intoxicating liquors in prohibition territory and transmits the same in person, by letter," etc., * ** to some dealer in intoxicating liquors who accepts and fills the same." Now, it is not necessary, in order to convict a person under this statute, to show that he was in fact acting as agent of a liquor dealer when he solicited or received an order for intoxicating liquors, for the effect of the statute is to make it an offense for any person, whether in fact the agent of a dealer or not, to solicit orders in prohibition territory or to receive such orders and transmit the same. The mere solicitation of an order without the same being filled is sufficient to make out an offense, or where, as in this case, the order is not solicited, the mere acceptance and transmission of the order to any dealer is sufficient if the order is accepted by the dealer and filled. It is said that, under the facts in this case, 31, 29 Sup. Ct. 10, 53 L. Ed. 75, in passing The "It is contended, in this connection, that the protection of the game of the state does possession out of season of imported game of not require that a penalty be imposed for the the kind held by the relator. It is insisted that a method of inspection can be established which will distinguish the imported game from that of the domestic variety, and prevent confusion in its handling and selling. That such game can be distinguished from domestic game has been disclosed in the record in this case, and all that would be required for the protection of it may be that such inspection laws would be domestic game. But, subject to constitutional limitations, the Legislature of the state is authorized to pass measures for the protection of police power, and is itself the judge of the the people of the state in the exercise of the necessity or expediency of the means adopted. In order to protect local game during the closed season, it has been found expedient to make possession of all such game during that time, whether taken within or without the state, a misdemeanor.' The statute was held to be valid. [2] The facts are undisputed that defendant received an order in prohibition territory and in person transmitted it to a liquor dealer, who filled the order, and he is guilty under the statute quoted. The indictment in this case charges both soliciting an order and receiving and transmitting such order. [3] The two offenses, or rather the two methods of committing the same offense, should have been incorporated in different counts of the indictment, but no question was raised as to the form of the indictment. The evidence does not show that the defendant solicited the order, but, as before stated, it does show that he received the order and In the Earles Case, supra, we held that the indictment, which was similar to the indictment in this case, charged the defendant with soliciting and transmitting the order, but that the evidence showed that he sold the liquor, and that that constituted a variance, which prevented a conviction in that case. The facts in that case were that defendant, after soliciting orders, purchased the liquor in packages of five gallons from a distiller, and then filled the orders which he had received, and that in that case he was guilty of selling liquor, instead of receiving and 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 transmitting of the order, whereas in the present case the defendant did not purchase the liquor and resell it in prohibition territory, but he received an order in that territory and transmitted it, which made him guilty under the statute quoted. Our conclusion is that the court erred in its finding, and the judgment is reversed, and the cause remanded for a new trial. SMITH, J., dissents. On Rehearing. MCCULLOCH, C. J. It is urged that we erred in the assumption of fact that the defendant received and transmitted an "order" for whisky. The recital of the agreed statement of facts is that, at the time and place named, the defendant "was about to take a train to Helena, Ark., and that James Hobart approached him and requested that he purchase for him (the said James Hobart), in Helena, four quarts of whisky," and the defendant went to Helena, purchased the whisky from a licensed liquor dealer, and carried it back to Marianna and delivered it to Hobart. An order, speaking in commercial terminology, is merely a proposal or request, and that is the sense in which the word is used in the statute. One of the definitions given by Webster is: "A commission to purchase, sell, or supply goods." The request of Hobart, therefore, amounted to an order. The statute does not require that the order be in writing. In fact, the language of the statute, read as a whole, excludes the idea that the order must be in writing before there can be a violation of law. Under any other interpretation of the word, the liquor dealer himself would not be guilty of any violation by receiving a verbal order for whisky in prohibition territory. If the request to purchase liquor would not amount to an order within the meaning of the statute, then that clause of the statute is meaningless and without any force whatever, for the preceding clause makes it unlawful for one, who is in fact the agent of a liquor dealer, to solicit or receive an order in prohibition territory. The purpose of the statute is to prohibit subterfuge by declaring one who receives an order to be the agent of any dealer to whom the order may be transmitted. Thus the law of agency is changed by the statute, and the statutory definition of the word "agent" is applied to the circumstances described. We adhere to our former conclusion that the facts stated in the opinion make out a case against the defendant for receiving an order in prohibition territory. Rehearing is denied. CARTER v. GOODSON et al. (No. 61.) (Supreme Court of Arkansas. June 22, 1914.) 1. ADVERSE POSSESSION (§ 115*) QUESTION FOR JURY-PRESUMPTION OF GRANT. The presumption of a grant from long-continued possession is one of fact, for the jury or court trying the case. [Ed. Note.-For other cases, see Adverse Possession, Cent. Dig. §§ 314, 691-701; Dec. Dig. § 115.*] 2. EJECTMENT (§ 95*)-SUFFICIENCY OF EVIDENCE-GRANT. Evidence in ejectment for land originally patented to the state as swamp land held to justify a finding of a grant by the state to defendant's predecessors in title. [Ed. Note.-For other cases, see Ejectment, Cent. Dig. §§ 280-295; Dec. Dig. § 95.*] Appeal from Circuit Court, Yell County; Hugh Basham, Judge. Ejectment by E. L. Carter against A. L. Goodson and others. Judgment for defendants, and plaintiff appeals. Affirmed. This is an action of ejectment by E. L. Carter against A. L. Goodson, Jacob Goodson, and Mrs. Laura West, to recover the possession of the N. W. % of the N. E. 4 of sec tion 6, township 4 N., range 20 W., 47.41 acres of land, in Yell county, Ark. The facts are as follows: The land in controversy was originally swamp land, and a patent therefor was executed by the United States to the state of Arkansas. The plaintiff, Carter, purchased the land from the commissioner of state lands, and obtained a deed from the state for the land on September 27, 1911. Richard Ellison, for the defendants, testified: "I knew Eppy White in 1856, and he lived on the land to one Jeffreys, and Jeffreys then movthe land in controversy. In 1857 White sold ed on it. At that time there was a house and some improvements on the land. The house remained there until it was destroyed during the latter part of the Civil War. After the war Jeffreys sold the land to my father, John J. Ellison; but father never moved on the land. At the time Jeffreys sold the land to my father, When my sister, Laura West, married, my fa he sold another tract, containing 40 acres. ther gave the land to her, and she and her husband moved on it, and have resided there ever since. Neither my father, my sister, nor her my sister together have paid the taxes on the husband could read or write. My father and 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 The case was tried before the court sitting without a jury, and judgment was rendered in favor of the defendants. Plaintiff has appealed. to looking over my father's papers for him, and I 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 . from White to Jeffreys, and my recollection is the deed called for both the N. W. 4 of the N. E. 4 and the N. E. 4 of the N. E. 14 of section 6, township 4 N., range 20 W. Jeffreys conveyed both of these tracts of land to my father. None of these deeds were ever recorded, and they were in possession of my father or sister when I last saw them." The defendant Laura West testified that her father gave her the land when she married in 1866, and that she has lived on it and cultivated it ever since. She testified that she recollects seeing deeds which were delivered to her as deeds to the land in con troversy; that she cannot now find the deeds; that her husband at one time assorted out some papers in his trunk and burned some of them; that this is the only way she can account for the absence of the deed now. Other witnesses for the defendants testified that Mrs. Laura West had resided on the land since her father gave it to her until the present time. Eppy White, Jeffreys, John J. Ellison, and the husband of Laura West were all dead when this action was commenced. It was also shown that there was in the county clerk's office a record book containing a certificate from the state auditor of lands, dated November 24, 1868, showing that the N. W. of the N. E. 4 of 64-20, 47.40 acres, was entered by Eppy White, and was subject to taxation. On the part of the plaintiff, the commissioner of state lands testified that the records in his office showed that there was an application by Eppy White, numbered 41, and dated August 13, 1857, for the purchase from the state of the N. E. 4 of the N. E. 4 of section 6, township 4 N., range 20 W., and also that the records of his office show that a patent was issued to him for said land, and that both in the application and the record showing the sale of the land the number of acres was described as 47.41 acres. He also stated that the original plat book was still in the land office and that the N. W. % of the N. E. 4 of 6-4-20, the land in controversy, is marked "S"; that the practice was, when a subdivision of lands was sold by the state, to place the letter "S" on the subdivision sold; that in his judgment the placing of the letter "S" on the N. W. 4 of the N. E. 4 of the section in question was a clerical error, because the records of the land office contained no other evidence of the sale of the land to any one except the sale made to Carter in 1911. He also stated that the records in the state land office showed that the N. E. of the N. E. 4 of 6-4-20 was purchased by Oscar Winn on December 15, 1904, and that a refunding certificate was issued to Winn for said land on September 22, 1911. Other evidence shows that suit was commenced by him for the possession of the land so Samuel Frauenthal, of Little Rock, for appellant. Priddy & Chambers, of Danville, and J. F. Sellers, of Morrillton, for appellees. HART, J. (after stating the facts as above). [1] Counsel for defendant seek to uphold the judgment upon the doctrine of the presumption of a grant after a long lapse of time. In discussing this question, in the case of Fletcher v. Fuller, 120 U. S. 534, at page 545, 7 Sup. Ct. 667, at page 673 (30 L. Ed. 759), Mr. Justice Field, speaking for the court, said: "When possession and use are long continued, they create a presumption of lawful origin; that is, that they are founded upon such instruments and proceedings as in law would pass the right to the possession and use of the property. It may be, in point of fact, that permission to occupy and use was given orally, or upon a contract of sale, with promise of a future conveyance, which parties have subsequently neglected to obtain, or the conveyance executed may not have been acknowledged, so as to be recorded, or may have been mislaid or lost. Many circumstances may prevent the execution of a deed of conveyance, to which the occupant of land is entitled, or may lead to its loss after being executed." Again (120 U. S. at page 551, 7 Sup. Ct. at page 676 [30 L. Ed. 759]) the learned judge said: we have seen from the authorities cited, is that "The general statement of the doctrine, as the presumption of a grant is indulged merely to quiet a long possession which might otherwise be disturbed by reason of the inability of which were actually given at the time of the acthe possessor to produce the muniments of title, quisition of the property by him or those under whom he claims, but have been lost, or which he or they were entitled to have at that time, but had neglected to obtain, and of which the witnesses have passed away, or their recollection of the transaction has become dimmed and imperfect. And hence, as a general rule, it is only where the possession has been actual, open, and exclusive for the period prescribed by the statute of limitations to bar an action for the recovery of land, that the preBut the sumption of a deed can be invoked. of this character is the notoriety it gives to reason for attaching such weight to a possession the claim of the occupant; and, in countries where land is generally occupied or cultivated, it is the most effective mode of asserting ownership." In United States v. Chaves, 159 U. S. 452, 16 Sup. Ct. 57, 40 L. Ed. 215, Mr. Justice Shiras, after discussing the question of fact as to whether or not the evidence was sufficient to show affirmatively that the claimant obtained title from the Mexican government, said, in reference to the power of the court to presume a grant upon proof of longcontinued possession, the following: such a question, because, as we have seen, there "It is scarcely necessary for us to consider is ample evidence from which to find that these |