« السابقةمتابعة »
KIRBY, J. This is a Controversy about a 40-acre tract of land in Lafayette County, Ark. Tom Bridges, a negro, acquired it from the government by patent as a homestead, and died in possession in 1912, leaving him surviving his widow, Ellen Bridges, and sister, TDOlly Black, Who claimed to be his Only heir. They conveyed the land On July 25, 1911, to R. L. Montgomery, who afterwards conveyed it to Burton, One of appellants. Appellee purchased the land from George Williams, a grandson of Tom, alleged to be the only heir of Viney Williams, the only Child of Tom Bridges, and in this Suit to Cancel the deeds from DOlly Black and Montgomery to Burton as clouds upon the title recovered a decree below, from which this appeal is prosecuted.
It appears from the testimony that Tom Bridges, a slave, was married to Mandy Cryer, another Slave, after the manner Of slavery marriages, and lived with her as his wife until her death after emancipation, and that there Was born to them an only child, called Viney, who was recognized by them as their child, and that George Williams, appellee's grantor, Was the Only child and heir of Said Viney Williams. The testimony
shows, too, not only that Viney Williams was recognized as their child by her parents, but generally by all as the child of Tom Bridges and Mandy, who lived together during slavery as husband and wife, and after the War until Mandy's death, and, although there is testimony tending to show that old Tom ranged widely from his own fireside and was rather promiscuous in his attention to other Women, and from some of these excursions other children were born, of which he was the reputed father, we are not able to say that the chancellor's finding is clearly against the preponderance of the testimony. Section 3, Act Feb. 6, 1867, provides: “That all negroes and mulattoes who are now cohabiting as husband and wife, and recognizing each other as such, shall be deemed lawfully married from the passage of this act, and shall be subject to all the obligations, and entitled to all the rights appertaining to the marriage relation; and in all cases, where such persons now are, or have heretofore been so cohabiting, as husband and wife, and may have offspring recognized by them as their own, such offspring shall be deemed in all respects legitimate, as fully as if born in lawful wedlock.” Laws 1867, p. 99. Said act, for SOme unknown reason, has not been carried into the Digests of the Statutes of Arkansas, but it has not been repealed, and the conditions requiring its passage for the protection of the children of Slaves Who could not legally marry, and the transmission of property acquired by them, have not passed, nor the reason therefor failed. Marriages between negroes falling Within its provisions have been held valid, and children born of and recognized as their offspring by the parties have been held legitimate and capable Of transmitting inheritances, and the statute has not become obsolete nor inoperative from long disuse. Scroggins V. State, 32 Ark. 205; Gregley V. Jackson, 38 Ark. 487. Viney, the recognized child of this slave marriage, Was legitimate, and her Son, George Williams, inherited the land in controversy from his grandfather, Tom Bridges. The decree is affirmed.
McDONALD V. CITY OF PARAGOULD. (No. 150.) (Supreme Court of Arkansas. Oct. 4, 1915.) LICENSES & 14—ORDINANCE—CONSTRUCTION. An ordinance by the city of Paragould re
quiring the payment of a license fee by persons operating vehicles “for the transportation of passengers for hire within the city limits” does not apply to the transportation of passengers from points within the city to points outside, and Vice Versa.
[Ed. Note.—For other cases, see Licenses, Cent. Dig. §§ 25–29; Dec. Dig. 3:14.]
Kirby, J., dissenting.
Appeal from Circuit Court, Greene County; Wm. J. Driver, Judge.
Bill McDonald, Jr., was convicted and fined for violation of an Ordinance of the City of Paragould, and he appeals. ReVersed. The city of Paragould enacted an ordinance prescribing a license fee of $15 and providing: “Every person owning, keeping or running any hackney coach, automobile or any other vehicle or conveyance, for the transportation of passengers for hire within the limits of the city of Paragould, is hereby required to take out and procure a license from the city clerk for each hackney coach, automobile or other vehicle or conveyance so used.” Appellant resides in the city and owns and keeps an automobile therein upon which he had paid the state license, and which was used in carrying passengers for hire from within the city limits to the fair grounds outside thereof, , and from the fair grounds back to different portions of the city, and from within the city limits to the town of Walcott, 12 miles distant, and from Walcott back into the limits of the city of Paragould. He at no time carried perSons for hire from One point to another Within the city limits. He refused to pay the license required by the ordinance and was convicted and fined for a violation thereof, and, upon appeal to the circuit court, was again convicted, and prosecuted this appeal from the judgment of conviction.
M. P. Huddleston and Robt. E. Fuhr, both of Paragould, for appellant. T. C. Shane, of Paragould, for appellee.
SMITH, J. (after stating the facts as above). The authority of the city to enact the Ordinance under section 5450 of Kirby’s Digest is not questioned, and there is no contention that the license fee required to be paid thereunder is unreasonable. It is contended only that the city is without power to regulate or restrict the Operation of automobiles outside its limits, and that the business carried on by appellant was not Within the limits Of the city and Subject to regulation by it under the terms of the OrdiIlance. It is argued in Support of this contention that, if the city of Paragould, within which the passengers were collected and discharged in the business of carrying to and from the fair grounds beyond the city limits and to and from the other town, has the power to require the payment of any such license, each city or town through and into which the automobile might go upon its different trips Would have a like power, and that the payment of a license to each of them Would be SO Onerous and burdensOme as to be absolutely prohibitive, and that only that municipality in which the business or occupation is Wholly Carried On Or conducted has any Such power. There is no attempt upon the part of the
city to extend its jurisdiction beyond its territorial limits in the passage of the ordinance, and it has already been held that the OWner of an automobile or motor Vehicle shall not be required to obtain any other license or permit to use and operate the same than that required by Act 134 of the Acts of 1911. Helena v. Dunlap, 102 Ark. 131, 143 S. W. 138. But Section 13 of Said act expreSSly declares it Shall not be construed “to affect the power of municipal corporations to make and enforce ordinances, rules and regulations affecting motor vehicles which are used within their limit for public hire.”
The court is of opinion that the ordinance, properly construed, means only to require the OWner or keeper of an automobile “for the transportation of passengers for hire within the limits of the city” to pay the license fee, and, since the appellant did not keep or Operate his automobile for the transportation of persons for hire from and to points Within the city, that he was not using it for transportation of passengers for hire within the limits of the city, in violation Of the Ordinance. The terms of the Ordinance are satisfied by holding that license taxes are to be imposed only by that municipality in which the business or occupation is carried On Or conducted. Bennett V. Birmingham, 31 Pa. 15; Cary v. North Plainfield, 49 N. J. Law, 110, 7 Atl. 42; Commonwealth v. Stodder, 2 Cush. (56 Mass.) 562, 48 Am. Dec. 679; Gettysburg v. Zeigler, 2 Pa. Co. Ct. R. 326.
Appellant's busineSS not being COnducted within the city limits, a refusal to pay the license did not constitute a Violation of the Ordinance, and the judgment is reversed, and the cause dismissed.
Mr. Justice KIRBY thinks the judgment should be affirmed, and dissents from the Court's Opinion. He is of Opinion that the Statutes authorize the passage of Such an Ordinance which, by its terms, necessarily includes the business of operating an automobile for the transportation Of paSSengerS for hire within the city limits, whether the journey of the passengers is begun and Completed therein, or not. That Since appellant took on his passengers at any place in the city designated by him or where persons desired to embark, and, returning from OutSide the limits, discharged passengers likewise, and kept his machine within the city Where such business was conducted, that he was violating the Ordinance in the conduct thereof;" that the city not only had the authority to fix the license for the carrying on of business, as conducted by appellant, but has done so in the passage of the particular Ordinance. Arkadelphia Lumber Co. v. Arkadelphia, 56 Ark. 370, 19 S. W. 1053.
McDANIEL, State Treasurer, v. HERRN. - - (No. 156.)
(Supreme Court of Arkansas. Oct. 11, 1915.)
1. TAXATION 6-5895 – INHERITANCE TAXES EXEMPTIONS—“PROPERTY OR ANY INTEREST THEREIN”—“ESTATE.’’ Under Acts 1909, Act 303, p. 906, § 3, providing that when property or any interest therein shall pass to certain heirs and descendants, the rate of inheritance shall be $1 on every $100 of the market value of such property received, provided that any estate which may be valued at a less sum than $5,000 shall not be subject to any tax, the excess over such sum only being taxed, the $5,000 is to be deducted only after the property or interest therein of the respective parties has been passed or distributed to or received by them and the tax imposed upon the remainder; the words “property or any interest therein” and the word “estate” being synonymous and referring to the property only after distribution.
[Ed. Note.—For other cases, see Taxation, Cent. Dig. §§ 1714–1721; Dec. Dig. 3:895.
For other definitions, see Words and Phrases, First and Second Series, Estate.]
2. STATUTES @->184—CONSTRUCTION - LEGISLATIVE INTENT.
In construing a statute the object to be attained thereby and the purpose of the Legislature in enacting it are to be considered. If the language used is susceptible of more than one construction, that meaning must be given to it which is in harmony with the purpose to be attained, rather than a construction which would tend to defeat it.
[Ed. Note.—For other cases, see Statutes, Cent. Dig. § 262; Dec. Dig. <=184].
Appeal from Circuit Court, Sharp County; J. B. Baker, Judge.
Action by Rufus G. McDaniel, State Treasurer, against T. I. Herrn, administrator, to collect inheritance taxes. From the judgment rendered, plaintiff appeals. Affirmed.
James Cochran died On the 26th day Of May, 1911, leaving an estate value at $23,816.65. Annie P. Cochran, his widow, received $5,207.40. Mrs. Herrn, the daughter Of COchran, received $9,304.62, and six children and one grandchild of W. D. Cochran, deceased, the Son of James Cochran, deceased, received each the Sum of $1,329.23, or a total of $9,304.62. This suit was brought by the appellant, as State treasurer, against the appellee, who was the administrator of the estate of James Cochran, to collect inheritance taxes. The case was begun in the probate court, and upon appeal to the circuit Court, upon the above facts, that court found that the amounts received by Mrs. Cochran and Mrs. Herrn in excess of $5,000 were Subject to a tax under Act 303 of the Acts of 1909, and accordingly deducted from the amounts received from them, respectively, the Sum Of $5,000, and rendered judgment in accordance with his holding, from which this appeal has been duly prosecuted. No Juestion is raised here as to Whether the interest Of Mr.S. Cochran as Widow is Subject to the tax.
Wm. L. Moose, Atty. Gen., and Jno. P. Streepey, ASSt. Atty. Gen., for appellant. T. I. Herrn, prose.
WOOD, J. (after stating the facts as above). The above act provides that all property in this state which shall pass by Will or by the intestate laws, or by sale or gift in possesSiOn tO take effect after the death Of the grantor Or dOnOr, Shall be liable to a tax for the use of the state which shall constitute a lien on the property charged With the tax. Section 3 Of the act is as follows: “When the property or any interest therein shall pass to a grandfather, grandmother, father, mother, husband, wife, lineal descendant, brother, sister, or any adopted child, in every such case the rate of tax shall be one dollar on every hundred dollars of the clear market value of such property received; provided, that any estate which may be valued at a less sum than five thousand dollars ($5,000) shall not be subject to any tax, the excess over such sum only being taxed.”  The SOle question presented by this appeal is Whether or not the $5,000 specified in Section 3 is to be deducted from the amount of the value of the entire estate as the property Of the decedent and the tax imposed On the remainder, or whether the amount exempted is to be deducted only after the prop. erty, Or interest therein, Of the respective parties has been passed or distributed to and received by them ; in other Words, as to Whether the tax is to be imposed according to the Value Of the property Or interest therein of the respective individuals named as beneficiaries in the act after the property has been passed or distributed and received by them, or whether it should be imposed upon the Classes. On the Value Of the entire estate after deducting the $5,000 exemption Specified. Section 4 Of the act provides: “When the property or any interest therein shall pass to any uncle, aunt, niece, nephew, or any lineal descendant of the same, in every such case the rate of tax shall be two dollars on every one hundred dollars of the clear market value of such property received, in excess of the sum of $2,000.00.” Appellant relies upon State V. Handlin, 100 Ark. 175, 139 S. W. 1112, as authority for his contention that the $5,000 must be deducted from the Value Of the entire estate mentioned and passing under the statute before the Same has been paSSed Or distributed to those named as beneficiaries under the statute, and that the tax is to be imposed upon the remainder and paid by all the distributees or beneficiaries of the estate under the statute, regardless of whether they have received an amount in excess of $5,000 or not. But no such question was raised or considered there. In that CaSe We Said: “The only question presented by this appeal is the validity of the act of the Legislature approved May 17, 1907, amending the inheritance tax law. The constitutionality of the act is challenged; it being contended that it makes an arbitrary classification of estates and exempts
from taxation estates of the third class exceed
ing $50,000 in value.”
&=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
In the case Of State W. Handlin, Supra, We held that the statute, which was very similar to the One under consideration, Was a proviSion for an inheritance tax, and not for a tax on property; that it provided for a tax upon the privilege of the right of succession to property, and, as such, was not subject to the Same test With respect to itS equality and uniformity as taxes levied upon property. True, Mr. Justice Kirby, speaking for the COurt, Said: “The manifest intention of the act was to levy the taxes alike upon all property of the estate, determining the tax by the amount or value of property in the different classes in which it was divided, and it was not intended that estates above $50,000 in value, passing to strangers, should escape payment of the tax.” The appellant relies upon this language of the opinion to support his contention that the tax must be levied upon the entire estate as of the property of the decedent, after deducting the amount Of the exemption Specified. But the above language of the opinion must be considered With reference to the question then before the court for decision, and, when so considered, it will be seen that it had no reference Whatever to the issue now to be decided. The language used Was merely by way of argument to show that the classification provided by the act for determining the amount of the inheritance tax to be paid did not render the act unconstitutional. The contention in that case Was that the act Was unconstitutional because under the classification therein provided estates exceeding in Value the Sum of $50,000 were exempt from taxation, and that therefore the act violated the provision of the Constitution requiring that taxes shall be equal and uniform. The language quoted above Was used in anSwer to that contention. In the latter part Of the Opinion in that case the court said: “The statute, so construed, violates no equality provisions of the Constitution, and it, being a statute taxing privileges and not property, does not conflict with the uniformity provision. But it divides the value of estates passing to certain classes of persons into certain amounts, a reasonable classification for the purpose of laying or levying a progressive inheritance tax, and treats all persons within the classes designated alike and without discrimination, and is a Valid enactment.” The words “property or any interest therein” and the word “estate,” as used in the section above quoted, have reference to the property, or any interest therein, after it has been passed, transferred, or distributed to and received by the respective perSons mentioned in the statute, Whether they take as individual or corporate legatees or devisees, vendees, donees, or grantees, heirs, next of kin, etc.; and the amounts of $5,000 and $2,000 show the value of the estate for which an inheritance tax shall be imposed on the persons receiving the same, according to the respective classifications into which the Statute divides them. This Was declared to be the meaning of the Words “estate” and “property” in an act passed in 1913, repealing the
act now under reWieW. See Act 197 Of the Acts of 1913. This is the correct interpretation of these Words as used in the statute now under COnSideration. There would be no ambiguity whatever about the statute were it not for the word “estate,” used in Section 3 Of the act above in the clause, “provided that every estate,” etc. But When the Word “estate” as there used is considered in connection with the language of the remainder of the Section and the language of section 4, it is clear that the term “estate” was used synonymously with the words “property or any interest therein.” The words “estate” and “property” are frequently used as Convertible terms; they are Often synonymous in meaning, depending upOn the context. See Funk & Wagnall's New Standard Dictionary Of the English Language, “Estate,” “Property.”  It is a well-established canon of interpretation that the object to be attained and the purpose of the Legislature are to be kept in mind in construing a statute. If the language used in a statute is susceptible of more than one construction, then the meaning must be given to it which is in harmony With the purpose to be attained rather than a COnstruction which would tend to defeat it. 23 Am. & Eng. Enc. Law (1st Ed.) p. 319, and cases cited in note. In St. L., I. M. & So. Ry. Co. v. State, 102 Ark. 205–20S, 143 S. W. 913, 914, we quoted from Green V. Weller, 32 Miss. 650, as follOWS: * “The true sense in which words are used in a statute is to be ascertained generally by taking them in their ordinary and popular signification, or, if they be terms of art, in their technical meaning. But it is also a cardinal rule of exposition that the intention is to be deduced from the whole, and every part of the statute, taken and compared together—from the words and context—and such construction adopted as will
effectuate the intention of the lawmakers.” Potter's Dwarris on Stat. 197, 201.
NOW it was the manifest purpose of the lawmakers, as gathered from the language of the act under consideration, to exempt certain classes of individuals and the particular individuals coming within those classes from the tax imposed by the statute, unless those individuals received property, Or an interest therein, of a greater value than the amount specified as exempting them from the tax. The purpose of the Legislature Was not to tax all persons who might have property Or Who Were beneficiaries of an estate under Sections 3 and 4 Of the statute, but to tax Only those persons of the classes named Who might receive property of the value of more than $5,000 and $2,000, respectively. But if the construction contended for by the State be correct, then every beneficiary in the Class mentioned in Section 3 Would have to pay a part Of the tax there imposed, regardless of whether the value of the property or interest therein Which they received exceeded the sum of $5,000. If such had been the in. tention of the Legislature, it seems clear to us that it would have made Some provision in the statute for prorating the tax among the several recipients of the entire estate of the decedent.
It follows that the judgment Of the Circuit court is correct, and it is therefore affirmed.
PASCHAL v. SWEPSTON et al. (No. 148.) (Supreme Court of Arkansas. Oct. 4, 1915.) 1. DRAINS G->14 – ESTABLISHMENT OF DISTRICT-NOTICE—DESCRIPTION-VALIDITY. Where the map and report showing the boundaries of a proposed drainage district fixed a starting point and described it so as not to enable an owner of land in the vicinity to ascertain whether or not his lands were included, this invalidated all the subsequent proceedings, though the calls, read in reverse order, would leave no uncertainty. [Ed. Note.—For other cases, see Drains, Cent. Dig. §§ 5, 6; Dec. Dig. 3:14.]
2. BOUNDARIES Q->3—CoURSES AND DISTANCES—MONUMENTS. Where the descriptions of the boundaries of a tract are uncertain and conflicting, distances yield to courses, and courses to monumentS.
[Ed. Note: For other cases, see Boundaries, Cent. Dig. §§ 3–41; Dec. Dig. Q:3.]
Appeal from Crittenden Chancery Court; Chas. D. Frierson, Chancellor.
Action by E. P. Paschal against W. W. Swepston and others. Decree for defendants, and plaintiff appeals. Reversed and CauSe remanded, With directions.
Rose, Hemingway, Cantrell, Loughborough & Miles, of Little Rock, for appellant. Brown & Anderson, of Memphis, Tenn., for appelleeS.
KIRBY, J. This case presents a single question of law for the consideration of the court. The surveyor appointed by the county judge of Crittenden county to make a preliminary Survey of certain territory for the purpose Of forming a drainage district filed his map and report showing the boundaries Of Said district. Said district began at the northwest corner of section 9, township 8 north, range 6 east, and the last three calls in the north boundary line were as follows:
“Thence west four and three-quarters of a mile to the east bank of Big creek; thence in a southwesterly direction along the east, south, and west bank of Big creek to the northeast corner of the northwest quarter of the northeast quarter of section 7, township 8 north, range 6 east; thence west four and three-quarters of a mile to the point of beginning.”
A notice was published, in which the last two calls of the boundary line Were given as follows:
“Thence in a southwesterly direction along the east, south, and west bank of Big creek to the northeast corner of the northwest quarter of the northwest quarter of section 7, township 8 north, range 6 east; thence west four and three-quarters of a mile to the point of beginning.”
This error was not discovered, and the district was established by the county court as called for in the report of the Surveyor. It Was later discovered that there Was an apparent discrepancy between the boundary of the district as established and as advertised in the published notice. Appellant, who was one of the property owners in the district, thereupon filed his complaint in equity, alleging that this error and discrepancy between the published notice and the order establishing the district was fatal to the Validity of the district. The commissioners demurred to the complaint, their demurrer was Sustained, and this appeal has been duly prosecuted. It is conceded that the publication of the notice is a jurisdictional requirement, and that the notice, as published, must contain a correct description of the district to be established. But it is urged that the error indicated is a patent One, ShoWn to be Wrong by the balance of the description, and that the description published is certain and complete and easily identifies the land of the district. In the establishment of the Various kinds of improvement districts, jurisdiction is conferred by the publication of a notice in which the boundaries of the district are defined. In the case of VOSS V. Reyburn, 104 Ark. 298, 148 S. W. 510, which was a proceeding for the establishment of a street improvement district, the court there Said that: “The object of designating the boundaries of the district was to enable property owners included therein and affected thereby to easily ascertain what property was included in the district.” It was there held that, where an attempted publication of an ordinance creating an improvement district omitted two half blocks from the proposed improvement district, the Variance Was material and destroyed the Validity of the attempted Organization. In the case of Norton v. Bacon, 113 Ark. 566, 168 S. W. 1088, it was held that the publication of a notice describing the land to be included in the proposed improvement district is jurisdictional, and that the county Court has no authority to form a district until notice has been published in accordance with the terms of the statute, and that a variance between the description of lands to be included in a proposed road improvement district in the plat and in the notice was fatal and invalidated the formation of the district. In that case the published notice onlitted 200 acres Of land included within it, and it was there Said: “To exclude the territory from the plat would be to form a district of less territory than that included in the boundaries set forth therein; and, on the other hand, if we should include that territory in the district, it would be done without notice having been given to the owner as required by the statute. So we think that
there is a fatal variance between the description of the lands embraced in the notice and