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(248 S.W.) others. From a decree in favor of defend It will be observed that the emergency ants, plaintiff appeals. Reversed and re- clause is not attached to the act. manded with directions.

[1] Under article 5, § 1, of the Constitu

tion of the state of Arkansas, as amended Golden & Golden, of Dermott, for appel- by constitutional Amendment No. ? (Crawlant.

ford & Moses' Digest, p. 131), and put inJohn Baxter, of Dermott, for appellees.

to effect by Act No. 2 of the General As

sembly (Ex. Sess.) of the state of Arkansas, WOOD, J. This is an action by the ap- approved June 30, 1911, no act becomes oppellant, a resident taxpayer in Dermott-Col- erative unless the emergency clause is atlins Road Improvement District, against the tached thereto until 90 days after the addistrict and its commissioners to restrain journment of the General Assembly. them from collecting assessments, selling bonds, and from proceeding with the con

“All legislative enactments except those necstruction of the improvement for which the essary for the immediate preservation of the

public peace, health and safety, are subject to district was created. The district and its the operation of the initative and referendum commissioners will hereafter be called ap- and do not go into effect until the expiration of pellee.

ninety days after final adjournment of the Leg. The appellant, after alleging that he is a islature.” Ark. Tax Commission v. Moore, 103 landowner and taxpayer within the bound- Ark. 48, 145 S. W. 199; Amend. No. 10, diaries of the district, set up that the appel- gested as Amend. No. 7, Crawford & Moses' lee was attempting to collect the first install. Digest, supra; Fenolio v. Sebastian Road Dist., ment of assessment of benefits that had been 133 Ark. 380, 200 S. W. 501. levied by the appellee against his land. Appellant challenged the authority of the ap

Until the expiration of such time, the pellee to collect the assessment on the fol- voters under the referendum clause of the lowing grounds, to wit:

Constitution had the power to refer the act

to the people as a whole for approval or re "(1) The act creating the district has neverjection thereof at the next general election. become operative. (2) The district has no Crawford & Moses' Digest, p. 131; article 5, right to spend more than $200,000 in the con: $ 1, Amend. No. 7; Thompson v. State, 151 struction of the road. (3) If the plans and Ark. 369, 236 s. W. 608. See, also, Hodges specifications are changed, the assessments al. ready made will be void.”

v. Dawdy, 104 Ark. 583, 149 S. W. 656; Tom

linson Bros. v. Hodges, 110 Ark. 528, 162 S. After a consideration of the record, the W. 64; Hodges v. Board of Imp., 117 Ark. conclusion we have reached makes it un- 266, 174 S. W. 542. necessary to consider any but the first

[2] It is conceded by counsel for the ap ground.

pellee that the election, under which the act Appellee district was created by Act No. creating the district was to become opera240 of the extraordinary session of the Gen- tive, was held on March 27, 1920. This eleceral Assembly of the state of Arkansas, ap fore void because at the time it was held

tion was without authority of law and thereproved February 20, 1920. The last two sections of the act are as follows:

the act authorizing such an election itself

had not become a law. Since the act itself, “Sec. 36. This act shall not become effective which authorized the people to approve the until the same has been approved by a majori- same by an election, did not go into effect ty of the qualified electors residing within the until after such election, it is manifest that district and voting at a special election to be the chancery judge had no authority under called by the chancery judge of the Second chancery district of the state of Arkansas. the act to call the election for March 27, Said chancery judge sh have full power to 1920, and that the election held under such call said election on a day to be fixed by him, call was premature and void. Van Hook v. and he shall designate the polling precincts, Wallace, 143 Ark. 203, 220 S. W. 37. In appoint judges and clerks, and make such other Thompson v. Trice, 145 Ark. 143, 223 S. W. orders as are necessary for the proper con- 367, we held thatduct of the election. Returns from said election sball be presented to said chancery judge "The Legislature cannot delegate to another within three days after said election and any its power to enact laws, but may make the encontest of the election shall be heard before forcement

of the law dependent upon him, provided same is filed within ten days after a condition or contingency. The law was made the election, and his certificate of the return by the Legislature to become operative upon of the election filed with the chancery clerk of condition of its adoption by a majority of the Drew and Chicot counties shall be conclusive qualified voters in the district." proof upon all parties as to the result of the election." "Sec. 37. All laws and parts of laws in con

In that case the constitutionality of the flict herewith are hereby repealed, and this act

act now under review was challenged; also shall take effect and be in force from and after the constitutionality of the act and the vaits adoption at the special election hereinbefore lidity of the assessments thereunder were referred to."

attacked in the recent case of Bulloch v.

Dermott-Collins Road Imp. Dist. (Ark.) 244, lant cannot maintain this action, because of S. W. 327. But the issue here raised was section 11 of the act, which reads as follows: not drawn to the attention of the court in

"Any party who may have complained in those cases.

writing of any of said assessments of benefits In Fenolio v. District, supra, we had un or damages, and who feels aggrieved by the der review an act creating an improvement action of the commissioners after the hearing district and containing provisions for an herein provided for, and any other person election to be held within two years from whomsoever who may have any objection to the passage of the act for the approval of any assessment of benefits or damages, or to the act by the people of the district. In any other proceedings under this act or action that case the court said:

of the commissioners, shall file his complaint

thereof in the chancery court having jurisdic"The act was approved

February tion within thirty days after the hearing by 26, 1913, but it did not declare the existence of the commissioners herein provided for and any an emergency, and therefore went into effect party not complaining within that time shall 90 days after the adjournment of the Legisla- be deemed to have waived any objection he may ture, according to the referendum clause of have thereto of any assessment of benefits or the Constitution."

damages, and shall not be heard to complain in

law or equity thereafter; and no suit shall [3, 4] This court cannot take judicial thereafter be brought in any court attacking knowledge of the time when elections are the validity of any of said assessments or benheld under special acts of the Legislature. efits or damages.” Therefore, since our attention was not called to the time when the election was held for

This section cannot avail appellee as a dethe approval of the act now under review fense to appellant's action because, as we by the people of the district, the former have shown, the act itself has not yet becases in which we upheld the validity of the

come effective. Before the act can become act are not decisive of the issue here for the operative, there must be an election held at

which a majority of the qualified electors first time presented. But the appellee coutends that the Legislature itself ordered the residing within the district approve the act. referendum on the act; that sections 36 and Such an election has not yet been held. The 37, providing for the special election for the holding of an election before such time and adoption or rejection of the act by the ma

before there was any law under which an jority of the voters of the district, were tan- election could be held was not a mere irtamount to a referendum of the act by the regularity, but a fundamental step, wholly Legislature. Section 9767 is as follows:

unauthorized by law, and therefore not

binding on the taxpayers of the district up"The General Assembly may order the ref

on whose property assessments have been erendum upon any measure enacted thereby, levied to pay for the contemplated improve and the same shall be voted upon and the re

ment. sult of the vote thereon declared in the same manner as measures upon which the referen

We conclude, therefore, that the assessdum bas been ordered by petition, or at such ment which the appellee is attempting to time and in such manner as the General Assem. collect from the appellant is without aubly ay direct.”

thority of law and void. The decree of the

chancery court holding otherwise is reversThe act under review, of which sections 36 ed, and the cause is remanded, with direcand 37 are a part, was the subject of a ref- tions to enjoin the appellee from collecting erendum to the voters of the whole state un any assessment against appellant and from der Amendment No. 7, supra, of the Consti- further proceeding under Act 240 until same tution, because the emergency clause was shall have become effective in the manner not attached to the act. Thompson v. State, therein provided. supra. It is not within the power of the Legislature to deprive the people of the MCCULLOCH, C. J., and SMITH, J., disright under the Constitution to have all senting. laws referred to them, except those laws necessary for the immediate preservation of MCCULLOCH, C. J. (dissenting). The holdthe public peace, health, or safety. Since ing of the election before the statute became the emergency clause was not attached to effective was a mere irregularity, and it was the act showing the existence of an emer- too late, after the approral of assessments gency, the act was the subject of a referen- and notice thereof, to raise the question of dum under Amendment No. 7 of the Con- the election not having been properly held. stitution, supra, and did not become opera- The manifest purpose of the lawmakers was tive until 90 days after the Legislature ad- to base the operation of the statute upon journed.

obtaining the consent of the electors, and an To hold that sections 36 and 37 were election held before the expiration of the equivalent to a referendum by the General referendum period was just as effective for Assembly would render the whole act un- that purpose as one held thereafter. constitutional.

(248 S.W.)

current in the city of De Queen, and that DE QUEEN LIGHT & POWER CO. v. CUR- it was efficiently performing such service, TIS. (No. 172.)

and that the appellee, for various reasons (Supreme Court of Arkansas. Feb. 19, 1923.) the service it should to the inhabitants of

stated in the petition, was not rendering Electricity 4-Railroad Commission cannot the city of De Queen, and that appellant'

grant certificate of convenience and neces. was chartered and received its franchise sity to public service electric company oper. from the city of De Queen for the purpose ating in city.

of remedying the condition' caused by the Acts 1919, No. 571, § 13, empowering the failure of the appellee to render proper Corporation Commission to grant public service

service. corporations a certificate of convenience and

The appellant alleged in its petition that necessity, being repealed by Acts 1921, No. 124, $ 25, and the latter act by section 17 conferring the “public convenience and necessity of the jurisdiction on municipalities to regulate pub- city and the inhabitants thereof imperativelic service corporations operating within their ly requires that a certificate of convenience limits, and by section 3 specifying the public and necessity be issued to the petitioner" service corporations over which the jurisdiction and the petition concluded with a prayer of the Railroad Commission, substituted for the that such certificate be issued to it. The apCorporation Commission, shall extend, the Rail pellee, through its receiver, appeared specialroad Commission cannot grant such a certificate to a company distributing electricity in ly, and filed its demurrer and motion to disa city under franchise from it.

miss. Among other things it alleged:

“That the Arkansas Railroad Commission has Appeal from Circuit Court, Pulaski Coun. no jurisdiction orer either the person or propty; W. B. Brooks, Judge.

erty sought to be affected by such petition." Petition by the De Queen Light & Power

The Railroad Commission overruled apCompany to the Railroad Commission for a pellee's demurrer and motion to dismiss, and certificate of conveniency and necessity, op- issued the certificate to appellant. The apposed by the Commonwealth Public Service pellee appealed to the Pulaski circuit court, Company, through its receiver, W. L. Curtis, where the appellee's demurrer and motion was, on appeal from the commission, dis to dismiss the petition of appellant was missed by the circuit court, and petitioner sustained, and a judgment rendered dismissappeals. Affirmed.

ing the petition. From that judgment is this Abe Collins and Lake & Lake, all of De

appeal. Queen, for appellant.

The only question for determination on Pryor & Miles, of Ft. Smith, for appellee. this appeal is whether or not the Railroad

Commission had jurisdiction to issue a "cer

tificate of convenience and necessity” to apWOOD, J. De Queen Light & Power Com- pellant. Section 13 of Act 571 of the Acts pany, hereafter called appellant, is a domes of 1919 creating the Arkansas Corporation tic corporation under a charter issued to it

Commission and defining its powers and by the state on the 16th day of May, 1921. duties, vested such commission with the powOn the 13th day of June, 1921, it was grant

er to grant to public service corporations, ed a franchise by the city of De Queen, Ark., authorizing it to sell and distribute upon certain conditions therein specified, a electric current in that city. Commonwealth furnish public utilities. The section con

certificate authorizing such corporations to Public Service Company, hereafter called

cludes as follows: the appellee, is a foreign corporation authorized to do business in this state. It had a "Every license, permit, contract or franchise franchise authorizing it to distribute and sell hereafter granted to any public service corpo. electric current, power, and water to the in- ration by the state or any municipality and all habitants of the city of De Queen as early and orders entered into or made by any mu

future contracts, ordinances, rules, regulations as the year 1918. W. L. Curtis was ap- nicipality relating to the use or enjoyment of pointed receiver for the appellee on May 25. rights and franchise granted to any public util1920. He surrendered the franchise which ity shall be subject to the exercise, by the Cor. appellee held authorizing it to do business poration Commission, of any and all of the in the city of De Queen and on January 22, powers of regulation provided for in this act.” 1921, applied for, and was granted by the Arkansas Corporation Commission, "an in

Section 31 of the act abolished the Raildeterminate permit" authorizing it to con-road Commission then existing and conferred tinue the public utilities mentioned above, all the powers and duties of that commission to the inhabitants of the city of De Queen. upon the Corporation Commission. The GenOn March 14, 1922, the appellant filed its eral Assembly of 1921 passed Act 124, enpetition before the Arkansas Railroad Com- titled: mission setting up its franchise above men "An act to amend Act No. 571 of the General tioned, authorizing it to distribute electric) Acts of the General Assembly of the state of

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Arkansas, for the year 1919, entitled, 'An act smission, and unless the application for reto create the Arkansas Corporation Commis- instatement is made within said time it shall sion and to define its powers and duties,' ap- be a waiver on the part of the public servproved April 1, 1919, and to regulate public ice corporation to insist upon the fulfillment utilities and public service corporations, and for of said franchise or contract rights. Secother purposes.”

tion 17 provides, in part, as follows: This act was approved February 15, 1921. "The jurisdiction of the municipal council or Section 3 of Act 124, supra, provides that city commission of any municipality shall exthe jurisdiction of the Arkansas Railroad tend to and include all matters pertaining to Commission created by the act shall extend the regulation and operation within the limits to and include all matters pertaining to of any such municipality of any street railroad, the regulation and operation of all common for domestic or industrial purposes, pipe line

telephone company, gas company furnishing gas carriers (naming them), and among other

company for transportation, distribution or sale public utility corporations mentioned are of oil, gas or water, electrical company, water "pipe-line companies for transportation of company, hydroelectric company or other comoil, gas and water,

electric light-pany operating a public utility or furnishing ing companies, and other companies furnish- public service within such municipality." ing gas or electricity for light, heat or

Section 25 of the act is as follows: power purposes," and hydroelectric companies and water companies, and provides “That sections 13, 14, 15, 20, 26, 29, 31 and that nothing in the act-

35 of Act No. 571 of the General Acts of the

General Assembly of the state of Arkansas, for "shall vest the commission with jurisdiction the year 1919, approved April 1, 1919, hereinas to any rate, charge, rule, regulation, order, before referred to, be and the same are hereby hearing, investigation, or other matter per repealed.” taining to the operation within the limits of any municipality of any street railroad, telephone It will be observed that section 13 of Act company, gas company, pipe line company for 571 of the Acts of 1919, which conferred jutransportation of oil, gas or water, electrical

risdiction upon the Corporation Commission company, water con iny, hydroelectric company or other company operating a public util. to grant public service corporations a cerity or furnishing public service as to which ju- tificate of “convenience and necessity,” is risdiction may be elsewhere conferred in this expressly repealed by Act 124 of the Acts act upon any municipal council or city commis- of 1921, and the latter act, as shown by the sion; notwithstanding, however, the jurisdic- various provisions above quoted, as well as tion of the municipality as to the above matters other provisions which it is unnecessary to within the limits of such municipality, the said set out, confers upon municipalities excluArkansas Railroad Commission shall bave and sive jurisdiction over public utilities, like is hereby delegated the authority and duty to the appellant, operating within their limits. require all utility companies now furnishing public service within the limits of any munici. | In Town of Pocahontas v. Central Light & pality to furnish and continue furnishing such Power Co., 239 S. W. 1-3, speaking of the service to such municipality, though the right jurisdiction of the Railroad Commission unof regulation of such utility as to rates and all der the Acts of 1921, we said: other matters within such municipality is herein elsewhere conferred upon the municipal

"The public service corporations over which councils or city commissions subject to right the jurisdiction of the commission shall extend is of appeal to the courts."

specifically stated in section 5 of the act, and

jurisdiction by municipalities to regulate pubSection 15 of the act gives all public util-lio service corporations or public utilities oper

ating within the limits of such municipalities is ity corporations now operating under in- conferred by section 17 of the act.determinate permits granted by the Arkansas Corporation Commission 90 days after the It follows that at the time of the filing of passage of the act to make application in the petition of the appellant on the 31st of writing to the municipal council or city com- March, 1922, asking the Railroad Commission mission of the municipality which granted to grant it a certificate of "convenience and the original franchise, contract, or lease, necessity," the commission had no jurisdicfor reinstatement of said franchise, contract, tion to grant such certificate. Having or lease, and when such application is made reached this conclusion, the other interestand filed with the clerk or recorder of said ing questions, presented and elaborately armunicipality it shall be granted as a matter gued in the briefs of learned counsel pro of right and reinstated by the municipal and con, pass out, and we therefore pretercouncil or city commission having jurisdic- mit a discussion and decision of these question, under the same conditions as existed at tions. the time said indeterminate permit was The judgment of the circuit court is corgranted by the Arkansas Corporation Com- rect, and it is therefore affirmed.

(248 S.W.)

"In consideration of the foregoing and to ELLIS et al. v. BAKER-MATTHEWS LUM- pay for said timber the parties of the second BER CO. (No. 154.)

part (Rhoads Bros.) agree to clear all said

land ready for cultivation and ready for the (Supreme Court of Arkansas. Feb. 12, 1923.) plow by removing therefrom all standing tim

ber and underbrush and all down timber and 1. Trusts 35(1) -Accumulated fund

logs and all other foreign matter which inhands of purchaser of lumber under agree- terferes with farming said land, except only ment with owner to hold stipulated sum for the tract fenced off into a field at the tenant 1,000 feet in lieu of lien on timber for per. house, which tract is east of the cultivated formance of stumpage contract held trust field and is grown up in young timber but has fund for benefit of owner.

no saw timber thereon. This tract was formWhere the owner of timber land entered erly cleared but has now grown up in young into a stumpage agreement, to secure the per- timber. formance of which he retained a lien upon all "The parties of the second part agree that timber, logs, and products thereof, and sub- they will begin the work of cutting the timber sequently released such lien in consideration and clearing said land during the month of that the purchaser of the lumber would hold October, 1917, and will give said work their for his benefit & stipulated sum per 1,000 feet time and attention and push the same foron all the lumber cut and delivered, the accum- ward to completion as rapidly as can be, and ulation of the sum represented by such agree will finish all said work of clearing within two ment created a trust fund in the hands of years from this date, and will thus finish not the purchaser of which the owner of the lands less than two hundred acres thereof before was the sole beneficiary, the assignment of May 1, 1918. All land when thus cleared is which the trustee could not challenge.

to be turned back to said Yount for cultiva2. Set-off and counterclaim Om 46(1)-Debts

tion. against trustee individually cannot be offset

"They also agree that they will begin at the against trust fund.

south side of said land near the present mill A trustee is not a debtor, and any debt site and will cut timber and clear for cultiowing by him or due to him individually is not of said land northward in strips about four

vation as they advance from the south end due in the same right or capacity as a trustee, hundred feet wide, and that they will cut no and lacks mutuality, and such debts cannot be offset against a trust fund, but must be timber on more than forty acres of said land in paid to the beneściary or the person to whom such strips in excess and advance of land the trust is properly assigned.

cleared for cultivation as aforesaid, and that

said Yount shall have a lien on all of the timAppeal from Craighead Chancery Court; ber, logs and products thereof on the year to Archer Wheatley, Chancellor.

secure the prompt and faithful performance

of this agreement on the part of the second Action by the Baker-Matthews Lumber parties; but no lien herein mentioned shall Company against E. B. Ellis and others. ever be construed to authorize said Yount to From a decree for plaintiff, the named de prevent or interfere with the selling or marfendant appeals. Reversed and remanded, keting of said timber products, so long as secwith directions.

ond parties are not in default under the terms

of this contract; and it is distinctly underHorace Sloan, of Jonesboro, for appel- stood and agreed that the said sum of $17,600.lant.

00 is to be paid by second parties by and Lamb & Frierson, of Jonesboro, for appel- through their above-described clearing work, lee.

and that said sum of $17,600.00 shall be deem

ed fully paid, when said clearing work has been WOOD, J. The appellee is a foreign cor- fully performed by said second parties under poration engaged in the lumber business, and this contract." having its principal office in Memphis, Tenn. Dr. W. E. Yount is a physician residing at Prior to May 12, 1919, Rhoads Bros, & Co. Cape Girardeau, Mo. He owned some tim- had entered into a contract with L. D. Leach bered land in Arkansas near Rhoads Bros. & Co. of Chicago, Ill., by which Rhoads Bros. & Co.'s sawmill. Rhoads Bros. & Co. was & Co. was to manufacture lumber for that a partnership, composed of J. T., W. W., and company, and it was to make advances to S. S. Rhoads, engaged in running a sawmill Rhoads Bros. & Co. as the lumber was mannear Black Oak, Ark. E. B. Ellis was a mer- ufactured. Baker-Matthews Lumber Comchant of Black Oak, Ark. On October 17, pany took over the Leach & Co. contract and 1917, •W. E. Yount entered into a contract reimbursed it for the advances it had made with the Rhoads Bros & Co. whereby he to Rhoads Bros. & Co. On the 12th of sold to them all the timber standing on 880 May, 1919, Rhoads Bros. & Co. entered acres of land, more or less, for the considera- into a contract with the Baker-Matthews tion named in the contract of $17,600. No Lumber Company. This contract provided cash was to be paid, but the consideration for the manufacture of 2,250,000 feet of yanamed represented the value of clearing the rious kinds of lumber at specified prices, lands mentioned in the contract. The provi- which was supplemented by an agreement of sions of the contract in regard to the clearing August 12, 1919, changing the prices. On are as follows:

September 22, 1919, Rhoads Bros. & Co, en

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