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Page State, White v..(Tex. Cr. App.).

690 Underwood, Ex parte (Tex. Cr. App.).... 551 State v. Whitman (Mo.).

937 Union County Bank & Trust Co., MorganState v. Williams (Mo.). 922 field Nat. Bank V. (Ky.).

846 State, Wilson v. (Tex. Cr. App.).

687 Union Light, Heat & Power Co. v. O'ConState, Windham v. (Tex. Cr. App.). 51 nell (Ky.)

237 State, Wood v. (Ark.)...

568 United Fuel Gas Co. v. Adams (Ky.). 841 State, Wyatt v. (Tex. Cr. App.).

.1076 Upchurch, H. T. Whitson Lumber Co. v. State Bank & Trust Co. v. Patridge (Ky.) 1056 (Ky.)

243 State ex inf. Barrett ex rel. Ryan v. Huffman (Mo. App.).

985 State ex rel. Burns v. Sbain (Mo.).

591
Vincent, Mustain v. (Ky.).....

867 Staton v. State (Tex. Cr. App.)

356

Van Syckel, Jacobsen v. (Tex. Civ. App.).. 124 Steele v. Crawford (Ky.)

197

Voudouris, Merchants' Nat. Bank v. (Tex. Steele, Dotson v. (Ky.)...

191
Civ. App.).....

810 Steinway & Sons v. Massey (Ky.).... 884 Stephens v. House (Tex. Com. App.) 30 Wade v. State (Tex. Cr. App.).

381 Stephenson, Brown & Hackney v. (Ark.). . 556 Wade v. State (Tex. Cr. App.

382 Stephenson & Co. v. Bradbury (Ky.)......1055 Walker, Putthoff v. (Mo. App.).

619 Sterling v. State (Tex. Cr. App.). 684 Walker, State v. (Mo.)..

947 Stevens, District Grand Lodge No. 11, Walker v. State (Tex. Cr. App.).

.1074 Grand United Order of Odd Fellows, v. Wallace, City Nat. Bank v. (Ky.). (Ark.) 909 Ware v. Jones (Tex. Civ. App.)

429 Steward, Davis v. (Ky.). 531 Warren, Fisk v. (Tex. Civ. App.).

406 Stewart, Simmons v. (Ky.). 892 Watkins, Kirchdoefer v. (Ky.).

251 Stone & Co., Silvers Box Corporation v. Watson v. Pyramid Oil Co. (Ky.)

227 (Tex. Civ. App.)..

..1104 W. C. Belcher Land Mortg. Co., Holland Stouffer v, Crawford (Mo.). 581 v. (Tex. Civ. App.)...

803 Stovall, Texas Farm Bureau Cotton Ass'n Weaver v. First Nat. Bank (Ark.).

556 v. (Tex. Civ. App.). ..1109 Webb v. Dunn (Ky.).....

840 Stratton, Martin v. (Ark.).

554 Webb v. Elkhorn Mining Corporation (Ky.) 844 Strauss, Dickerson v. (Tex. Civ. App.). 833 Webb v. Spann (Ark.).

285 Stucker, Baker v. (Mo. App.). .1003 Webster v. Nunn (Tex. Civ. App.).

711 Stuth, Shear Co. v. (Tex. Civ. App.). 158

Weller v. Dinwiddie (Ky.)..

874 Suggett v. Pemiscot County Bank (Mo.). . 963 Wells v. McKay (Ark.)

276 Summers v. Brown (Ark.). 571 Wells v. State (Tex. Cr. App.)

378 Surtees, Whitaker v. (Tex. Civ. App.). 432 Werner v Mayfield Co. (Tex. Civ. App.). 766 Sutton v. Sovereign Camp, W. 0. W. (Ky.) 540 Werth v. Tevis (Tex. Civ. App.). .

767 Szymanski v. State (Tex. Cr. App.)..... 380 West v. State (Tex. Cr. App.).

371

Western_Crawford Road Imp. Dist. v. MisTanner v. Tanner (Tex. Civ. App.).

souri Pac. R. Co. (Ark.)..

563 Tarbutton, American Surety Co. of New York v. (Tex. Civ. App.).

Western Indemnity Co. v. Leonard (Tex. 435 Com. App.)

655 Tate v. Morris, Graham & Morris (Tex. Civ. App.)

Western Union Tel. Co. v. Buchanan (Tex. 797 Civ. App.)

68 Taylor v. Board of Trustees of Greenville

Whalen, State V. (Mo.)..

931 White Graded Common School Dist.

Whitaker v. Surtees (Tex. Civ. App.) 432 (Ky.)

193
White v. State (Tex. Cr. App.)...

690 Terrel v. Otis Elevator Co. (Tex. Civ. App.)

White, Ward & Erwin v. Hager (Tex. 467 767

Com. App.)... Tevis, Werth v. (Tex. Civ, App.).

319 Whitman, State v. (Mo.).

937 Texas Bitulithic Co. v. Dallas Consol. Electric St. R. Co. (Tex. Civ. App.).. 746

Whitson Lumber Co. v. Upchurch (Ky.)

Whitted, National Union Fire Ins. Co. of Texas Farm Bureau Cotton Ass'n v. Stovall (Tex. Civ. App.).

.1109
Pittsburgh, Pa., v. (Ark.). .....

560 Texas Life Ins. Co., Bryan v. (Tex. Civ.

Wichita Valley R. Co. v. Meyers (Tex. Civ. App.) 163 App.)

444 Texas Life Ins. Co., City of Waco v. (Tex.

Wilkinson v. May (Ky.).

887 Com. App.).

315 Wm. J. Lemp Brewing Co., Chaffin v. (Tex. Texas Mercantile Co., Payne v. (Tex. Civ.

Civ. App.)....

715 App.)

79 Williams, Adams v. (Tex. Com. App.). 673 Texas & P. R. Ço. v. Cave (Tex. Com. Williams, Allen v. (Tex. Civ. App.). ...1116 App.) 23 Williams v. Carr (Mo. App.)...

625 Thane, Cox_v. (Ark.). 270 Williams, State v. (Mo.)..

922 Thompson, Denby Truck Co. v. (Tex. Civ. Williams & Co. v. Turner-Myers Drug Co. App.) 427 (Tex. Civ. App.).,..

825 Thompson y, Short (Ark.) 263 Williamson, Cooper v. (Ky.).

245 Thompson v. Smith (Tex. Com. App.). .1070 Wilson v. Chisholm (Ark.)

273 Todd, State v. (Mo.)... 939. Wilson, Moore v. (Ky.).....

874 Todd v. State (Tex. Cr. App.).

695 | Wilson v. Overturf (Ark.) Tolston v. State (Tex. Cr. App.). 50 Wilson v. State (Tex. Cr. App.).

687 Tomlinson v. Humpich (Ky.). ...1016 | Windham v. State (Tex. Cr. App.)

51 Tosh v. Kirshner (Mo. App.). 994 Winn, Hicks v. (Ky.).

499 Tri-State Ass'n of Credit Men, City of El Wisconsin & Arkansas Lumber Co. v. BraPaso v. (Tex. Civ. App.). . 101 dy (Ark.).

278 Truehardt, Sovereign Camp, W. 0. W., v. Wofford, Ex parte (Tex. Cr. App.)

346 (Tex. Civ. App.)... 757 Wood, Louisville & N. R. Co. v. (Ky.).

871 Tucker v. Lingo (Tex. Civ. App.). .1097 Wood v. State (Ark.).

568 Tucker, Smith y. (Tex. Civ. App.). 125 | Woodrow, Patton v. (Ky.).

226 Turner y. Hine (Mo.).. 933 Woods, Énfield v. (Ky.).

842 Turner-Myers Drug Co., H. W. Williams Word, Smith v. (Tex. Civ. App.).

734 & Co. v. (Tex. Civ. App.)...

825 Worley v. Morgan (Tex. Civ. App.)... 1101 Two States Tel. Co. v. Hurley (Tex. Civ. Wortham-Carter Pub. Co., Cresson v. (Tex,

243

898

(248 S.W.) Page

Page Wright v. Federal Life Ins. Co. (Tex. Wynne, Love & Co. v. Bunch (Ark.)..... 286 Com. App.).

325 W. T. Rawleigh Co. v. Marshall (Tex. Civ. Yawn, Drake v. (Tex. Civ. App.).... 726 App.) 153 York, Pratt v. (Ky.)....

492 Wunsch v. Burlington State Bank (Tex. Young, Davis v. (Tex. Civ. App.)..... 409 Civ. App.)

135 Wyatt v. State (Tex, Cr. App.). .

.1076 | Zumstein Taxicab Co., Robson v. (Ky.)... 872

REHEARINGS DENIED

{Cases in which rehearings have been denied, without the rendition of a written opinion, since the publication of the original opinions in previous volumes of this Reporter.]

TEXAS.
Gulf, C. & S. F. R. Co. v. Anderson, Clayton & Co., 246 S. W. 1031.
Haverbekken v. Coryell County, 247 S. W. 1086.
McMillan v. State, 244 S. W. 512.

See End of Index for Tables of Southwestern Cases in State Reports

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THE

SOUTHWESTERN REPORTER

VOLUME 248

16 of Washington county, created by spe. MCILROY v. BAIRD et al. (No. 181.) cial act of the General Assembly of 1919 (2

Road Acts of 1919, p. 2306) and abolished by (Supreme Court of Arkansas. Feb. 19, 1923.) special act of the General Assembly of 1921 Highways 90—Appeal from disallowance of (Sp. Acts 1921, p. 525), Appellees moved to

claim against district abolished by statute dismiss the appeal on the ground that it was held subject to dismissal for not being prose- not perfected within the time prescribed in cuted within time limited.

a section of the repealing act cited above. Where, in a suit attacking the validity of The history of the litigation is as follows: a road improvement district, created by Road Appellees, who were certain owners of real Laws 1919, vol. 2, p. 2306, and abolished by property in the district mentioned, commencSp. Laws 1921, p. 525, wherein before the re-ed suit in the chancery court of Washington pealing act went into effect the complaint was amended so as to set it forth, and the suit was county in June, 1920, attacking the validity prosecuted to final decree, and a claim against of the statute creating the district and the the district disallowed by the chancery court assessment of benefits thereunder. No dein part, and the claimant appealed, but without cree was rendered in that action until after filing his transcript within the time required by the repealing statute became effective, 90 section 3 of the repealing act as to appeals in days after the adjournment of the General suits on claims rejected by commissioners, it is too late, after all the parties treated the claim Assembly of 1921. After the passage and apas if it had been rejected by commissioners, to proval of that statute, but before it went inraise a question that it had not been passed on to effect, appellees amended their complaint by them, and for that reason the limitation did in the original action so as to set forth this not apply, and neither is it material that the statute, and the action proceeded to final decase was instituted before the repealing act cree after the repealing statute went into efwent into effect, as the final decrce was ren- fect. The court appointed a master to invesdered under it after it became effective, nor tigate the claims, and specified a time within that its constitutionality is attacked, as the attack arises entirely in prosecution of the which the claims might be presented. The claim, and therefore comes squarely within the master made his report, and appellant filed statute, and does not render it any the less con- exceptions to the report, and the court renclusive as to the time for the appeal, and the dered a final decree, allowing a portion of apstatute is valid as to that part at least, and the pellant's claim, but disallowing the remainappeal must therefore be dismissed for not be- der. This is the decree from which appellant ing prosecuted within the time specified.

seeks to prosecute his appeal, but his tran

script was not filed within the time specified Appeal from Washington Chancery Court; in the repealing statute for the prosecution B. F. McMahan, Chancellor.

of such appeals. Suit by A. H. Baird and others, attacking The section of the repealing statute cited the validity of the law creating Road Im- above reads as follows: provement District No. 6 of Washington

“Sec. 3. If the commissioners reject any County, wherein a claim against the district claim, in whole or in part, presented to them, by J. H. Mcllroy was disallowed in part, and the holder thereof shall be barred, unless he he appeals. Appeal dismissed.

shall, within ninety days after notice of the reJas. B. McDonough, of Ft. Smith, for ap-by suit. All suits shall be deemed matters o?

jection thereof, proceed to enforce the same pellant. W. N. Ivie, of Rogers, and John Mayes at the earliest possible moment; and all ap

public interest, and shall be advanced and heard and J. V. Walker, both of Fayetteville, for peals therein must be taken and perfected withappellees.

in thirty days."

PER CURIAM. This is an appeal from a This court has in numerous decisions held decree of the chancery court of Washington to be valid statutes similar to this limiting county disallowing a portion of appellant's appeals in certain cases to a time as short claim against Road Improvement District No. as that mentioned in this statute. Crandell

Ewa For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 248 S.W.-1

v. Harrison, 105 Ark. 110, 150 S. W. 560 ; ferendum, and providing that, except as to laws Miller v. White, 108 Ark. 253, 157 S. W. 934; for the immediate preservation of the public Norton v. Road Imp. Dist. No. 1 of Jefferson peace, health, or safety, the referendum may County, 143 Ark. 110, 219 S. W. 776; Ferrell be demanded on a law within 90 days from the v. Massie, 150 Ark. 156, 233 S. W. 1083; Da- which it was passed; no act without an emer

final adjournment of the General Assembly, at vis v. Cook (Ark.) 245 S. W. 11.

gency clause becomes operative until 90 days Appellant insists that this case does not after adjournment of the General Assembly, the fall within the terms of the statute for sev- voters, until the expiration of such time, haveral reasons: First, because his claim was ing the power to refer the act to the people at never rejected by the commissioners, but the next general election. was passed on by the court in the first in- 2. Highways ww 90—Election to approve act stance. The commissioners of the district

creating district held to be premature and were parties to this suit, and appellant pre void. sented his claim to the court, or, rather, to Where an election under Act Feb. 20, 1920 the master, in accordance with the instruc- (Ex, Seșs.) No. 240, creating the Dermotttions of the court, all parties treating the Collins Road Iraprovement District, which was claim as being in the same attitude before not to become effective until approved at a the court for adjudication as if it had been special election called pursuant to section 36, rejected by the commissioners, and it is too expiration of 90 days from the adjournment of

was held before the act bcame operative at the late now, after the adjudication has been the General Assembly, pursuant to Const. art. made by the court, to raise the question that 5, § 1, as amended by Amend. No. 7, it was prethe commissioners had not previously passed mature and void, because at that time the act upon the claim and rejected it.

itself had not become a law. The next reason given why the case does 3. Evidence Cm 45-Supreme Court cannot take not fall within the provisions of the stat

judicial knowledge of time when elections are ute is that it was instituted before the re held under special acts. pealing statute vent into effect. The an

The Supreme Court cannot take judicial swer to that contention is that the suit pro- knowledge of the time when elections are held gressed without final decree until after the under special acts of the legislation. repealing statute became effective and the 4. Statutes Ca351/2–Legislature held without decree was rendered under that statute.

power to deprive people of right of referenAgain, it is urged that the case does not dum. fall within the statute for the reason that It is not within the power of the Legislathere is an attack made upon the constitu- ture to deprive the people of the right under tionality of the statute, and that the appeal the Constitution to have laws referred to them, ought to stand as to that part of the decree and hence Act Feb. 20, 1920 (Ex. Sess.) No. under the rule announced in Davis v. Cook, 240, creating the Dermott-Collins Road Imsupra. Conceding it to be true that there is provement District, being without an involved an attack upon the constitutionality gency clause and subject of referendum to vot

ers of the whole state, it cannot be held, withof the statute, the attack arises entirely in out rendering the whole act unconstitutional, the prosecution of the claim which appellant that the special election by voters of the dishad filed, and therefore it comes squarely trict for the adoption or rejection of the act within the statute. The fact that there is a pursuant to sections 36 and 37, is equivalent to challenge to the constitutionality of the stat. a referendum by act of the Legislature pursuute does not render it any the less conclusive ant to Crawford & Moses' Dig. $ 9767. as to the time for prosecuting the appeal. 5. Highways em 148Section of act creating We have held that that part, at least, of the district held not available in defense to suit statute is valid under the rule announced in to restrain collection of assessments, selling the cases hereinbefore cited.

bonds, etc., where act has not become effecIt follows from what has been said that

tive by election. the appeal has not been prosecuted within

Act Feb. 20, 1920 (Ex. Sess.) No. 240, the time specified by the statute, and the ap- creating the Dermott-Collins Road Improvereal·must therefore be dismissed.

ment District not having become effective by It is so

a valid election thereunder, section 11 thereof ordered.

providing when a party may not complain of assessments thereunder and suits attacking their validity shall not be brought, is not avail.

able in defense to a suit to restrain the collecGASTER V. DERMOTT-COLLINS ROAD tion of assessments, selling bonds, and con

IMPROVEMENT DIST. et al. (No. 100.) struction of improvements thereunder. (Supreme Court of Arkansas. Jan, 22, 1923.) McCulloch, C. J., and Smith, J., dissenting. 1. Statutes om253-Act without emergency

Appeal from Chicot Chancery Court; E. clause held not operative until 90 days after

P. Toney, Special Chancellor. adjournment of General Assembly.

Under Const. art. 5, § 1, as amended by Suit by Henry Gaster against the DerAmend. No. 7, relating to the initiative and ref-'mott-Collins Road Improvement District and

emer

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