created an improvement district for the purpose of constructing a levee along the west bank of Red river in Miller county, and included in the district lands of a total area of about 53,000 acres on the west side of the river in that county. Acts of 1913, p. 1267. Nearly one-half of the lands embraced in the district were then and are now owned by the Dorsey Land & Lumber Company, a domestic corporation. The territorial boundaries of the district were described in the statute as beginning at a point where a certain section line intersects the west bank of Red river south of Garland, Ark. "thence in a southerly direction and following the meanderings of Red river to a point where said line intersects the south line of section twenty (20), township eighteen (18) south, range twenty-six (26) west, thence north sixty (60) degrees west to the point in section nineteen (19), township eighteen (18) south, range twenty-six (26) west, where said line strikes the high grounds or 'hills,' thence northeasterly, following the meandering of the line at the foot of the hills where the high land and overflow lands, or 'bottoms,' join, to the point where said line between the high land and overflow land intersects the section line between sections fifteen (15) and twenty-two (22), *** township sixteen (16) south, range twenty-five (25) west, thence east along said section line to the point of beginning." Another section of the statute conferred authority upon the board of directors of the said levee district to levee the west bank of Red river between the two points specified in the description, and discretion was lodged in the board of directors to decide upon the precise location of the levee "so as to protect, as far as practicable, the property in the district above named." Section 4 of the statute provided for levying assessments for the purpose of raising funds to build, repair and maintain the levee. It was pro vided therein that: "The board of directors of Garland levee district shall have power, and it is hereby made their duty, to assess and levy annually a tax upon the valuation as it shall appear each year upon the real estate assessment book * upon all lands and tramroads in said district, and all natural gas or oil pipe lines within said district, and upon the railroad track of all railroad companies within said district as appraised by the board of railway commissioners; but such tax on said lands, natural gas or oil pipe lines, tramroads and railroad tracks shall in no year exceed the rate of ten (10) per cent. of the assessed valuation of said property within said district." The statute also authorized the district to issue bonds for the purpose of borrowing money for use in the construction of the levee. The levee was located and constructed in accordance with the authority conferred by the statute and bonds were issued and sold. The present action was instituted in the chancery court of Miller county by the board of directors of Garland levee district against the Dorsey Land & Lumber Company and enforce payment of overdue assessments, and appellants resisted payment on the ground, among other things, that the statute creating the district was void because the description of the territory embraced in the district was so vague and imperfect that it was impossible to ascertain the true boundaries of the district. The method of assessment authorized by the statute was also assailed as being violative of the rights of the property holders. The General Assembly of 1917 (Acts of 1917, p. 235) amended, or rather re-enacted, the aforesaid statute of 1913, with a slightly different description of the boundaries of the district, intending to correct and mark definite what was supposed to be the imperfect description contained in the old statute. One of the sections of the new statute declared the purpose of the lawmakers to be to validate all of the proceedings under the former statute. [1] We will first discuss the question of the correctness and certainty of the description in the act of 1913, and as the conclusion. reached on that question is favorable to appellee it will be unnecessary to discuss the amendatory statute subsequently enacted, for if it be found that the later statute changed the boundaries of the district it did not affect the validity of the district as originally formed, but the change took effect only from the date of the enactment of the new statute. It may be said, however, in passing, that if the new statute made any change in the boundaries of the district it was very slight and affects very little of the territory as originally described. [2] It must be readily conceded that unless the territory to be affected by an improvement scheme is described with sufficient certainty to put the property owners on notice the statute is void. Ferrell v. Keel, 105 Ark. 380, 151 S. W. 269; Norton v. Bacon, 113 Ark. 566, 168 S. W. 1088; Morgan Engineering Co. v. Cache River Drainage District, 122 Ark. 491, 184 S. W. 57; Heinemann v. Sweatt, 196 S. W. 931. On the other hand, if the description can be made certain by resort to extrinsic evidence to ascertain the location of the boundary points mentioned in the statute itself, either in express words or by necessary implication, the description is sufficient. In other words, if the language of the statute itself furnishes the key for the ascertainment of the boundaries then it is sufficient. [3-5] Two different imperfections are claimed to be in the language of the original statute describing the boundaries of the district. The first contention relates to that part of the descriptive words specifying the point where the line of the river bank intersects the south line of section 20. It is of the river to some point in one of the sections of the township mentioned where the line intersected the south boundary line of a section, and that section 29 was necessarily meant to be described. It is an obvious error, and it is our duty to discard the error and accept the obvious meaning of the framers of the statute. Bowman v. State, 93 Ark, 168, 129 S. W. 80. This is not reading into river has made frequent changes in its course a boundary line which follows the west bank at and near this locality, but that it has never touched section 20. Appellee introduced in evidence what is called a soil map that is said to have been issued by the federal government in the year 1904, and this map shows the intersection by the river of the south boundary of section 20. The authenticity of this map, at least as correctly showing the location of the river, is not satisfactorily established. The government a statute something which the Legislature failed to put there, nor does it constitute a judicial effort to correct mistakes of the Legislature, but it is merely interpreting the language used by the lawmakers so as to ascertain their real intention without reading anything into it except that which was obviously meant, to be used. plats in the office of the state land commissioner of the lands in the township mentioned show that Red river ran considerably south of the south line of section 20 in the year 1841 when the surveys were made. The plats show, too, that Red river intersected the south boundary line of section 29, but that the west bank of the river did not in- [6] We are of the opinion, therefore, that tersect the south boundary of any section in the descriptive words are not so uncertain that township east of section 29. Descrip- as to render the statute void. Nor can it tive words in an instrument concerning the be said that the other descriptive words with boundaries of lands where townships and reference to the "line at the foot of the hills sections or subdivisions thereof are mention- where the high land and overflow lands, ed are presumed to have been used with ref- or bottoms, join," is too uncertain descriperence to government plats. But where, as tion to be valid. But where, as tion to be valid. The evidence of engineers in this case, the purpose of the lawmakers and surveyors is to the effect that the line was to describe the boundaries of a levee dis- between the bottom lands and the uplands is trict so as to include lands to be affected by sloping and rather uncertain, but it is not the construction of the improvement, it is impossible to approximately follow the line. presumed that the framers of the statute The worst that can be said about the line meant the descriptive words to refer to con- with respect to its uncertainty, to accept ditions as then existing rather than to the the statement of one of the engineers, is technical meaning of the descriptive words that lines run by different engineers acemployed. It is plain, however, that if we cording to the description given might vary give a literal application to the words used as much as 100 feet. It is not essential that the description is imperfect, for neither ac- a line of that kind should be shown with cording to the government plats nor the lo- absolute accuracy. Only reasonable approxcation of the river as shown by the testi-imation is required, for the purpose of the mony in the case has the south boundary line lawmakers was to point out a line between of section 20 ever been intersected by Red river. On the other hand, we find, not only from the plats themselves, but from the other testimony in the case, that at the time of the passage of this statute the south boundary line of section 29, and no other section, was intersected by the west bank of the river, and we think that when the whole description is considered in the light of the object to be attained by the legislation it is obvious that there was a clerical error made in the description, and that section 29 was intended to be mentioned instead of section 20. The boundary line is the west bank of Red river, and we can see from the language used that it was intended to leave that point where it intersects the south boundary line * of a certain section, and thence run north 60 degrees west to the "high grounds or hills where the high land and overflow lands, or bottoms, join." No other point exists except in section 29, where the boundary line leaves the west bank of Red river at its intersection with the south boundary line of a section. Hence it can be seen with certainty that the Legislature meant to adopt the lands that would probably be benefited by the construction of the levee and those that would receive no benefit. Such a line as that would necessarily be to some extent an approximation and not an absolutely definite and accurate line. The attacks upon the validity of the statute on account of alleged indefiniteness are therefore unfounded. [7] It is next contended that the method of assessments adopted by the board of directors is not in accordance with the terms of the statute. It is contended that the language of the statute, when properly interpreted, authorizes the board of directors to levy assessments upon benefits to be actually ascertained within a certain prescribed maximum, and that the board of directors proceeded without authority in attempting to levy annual assessments upon valuations. The statute very plainly constitutes a legislative determination that benefits will accrue in proportion to the valuation of the land in the district, and adopts the assessments made for purposes of county and state taxation as a basis of valuation. An annual tax not to exceed 10 per centum of the assessed valuation is authorized. This is the (133 Ark. 584; 136 Ark. 532) STATE v. BLUMENTHAL. (No. 296.) (Supreme Court of Arkansas. April 15, 1918.) 1. ARSON 5 SUBJECT OF OFFENSE DWELLING HOUSES AND OUTBUILDINGS. At common law not only the bare dwelling thereof, though not contiguous thereto, or under house, but all the outhouses which are a parcel the same roof, may be the subject of arson. method adopted by the board of directors. Under the common law, arson is an offense against the possession rather than against the property itself, and a tenant in possession of the building burned cannot be guilty of arson in burning it. [8] The determination of the Legislature as to the method of assessment is not arbitrary or erroneous on its face, nor does the testimony in this case show that it is palpably wrong. There is considerable testimony tending to show that the lands of appellant lying near the southern end of the district will not be relieved from overflow to the extent of other lands in other portions of the district, but it does not necessarily follow that the methods of assessment are upon the wrong basis or that they are unequal. The height of overflow from which relief is afforded to a given tract of land is not necessarily determinative of the question of extent of benefits. "A tract within the district may be above overflow without the levee," said this court in Carson v. St. Francis Levee District, 59 Ark. 513, 27 S. W. 590, "and yet, in various ways, greatly benefited by the levee." At any rate the condiAt any rate the conditions are not such as to justify the court in declaring that the legislative decision involved in the creation of the district and the imposition of the burden of taxation is demonstrably erroneous. To set aside that decision of the lawmakers on any other ground would constitute an invasion of the peculiar province of that branch of govern ment. The chancellor was correct in upholding the district, and the assessments made against the lands. The decree is affirmed. HART, J., dissents from that part of the decision which holds that the description is sufficient. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Arson.] 3. ARSON 15- BURNING BY TENANT — STATUTES "HOUSE"-"DWELLING HOUSE". "TENEMENT"-"OR OTHER TENEMENT" "OTHER." Under Kirby's Dig. § 1575, defining arson as the willful and malicious burning of the house or other tenement of another person, a tenant who burns a dwelling house of which he is in possession is guilty of arson, the statute being intended to abrogate the common-law rule; the word "house" in the definition of "arson" at common law importing a "dwelling house,' which comprehends outhouses which are a parcel thereof, though not contiguous thereto, the words "or other tenement" not being used in the statute as synonymous with "house," "tenement" signifying everything that may be holden, if of a permanent nature, and in its restrictive sense applying only to houses and other "other" meaning a different person or thing from buildings occupied by a tenant, and the word the one under consideration or just specified, in the sense of "additional." [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Dwelling House; House; Other; Tenement.] W. J. Driver, Judge. Dr. H. M. Blumenthal was indicted for arson. From a judgment sustaining a demurrer to the indictment, the State appeals. Reversed, with directions. Jno. D. Arbuckle, Atty. Gen., and T. W. Campbell, Asst. Atty. Gen., for the State. HART, J. This appeal is prosecuted by the state to reverse a judgment sustaining a demurrer to an indictment for arson against Dr. H. M. Blumenthal. We will, first, treat the indictment as the parties themselves, and the court below treated it as presenting for decision the question of whether or not under our statute a tenant can be guilty of arson in setting fire to and burning the dwelling house of his landlord occupied by him. In the case of the State v. Hanna (Ark.) 198 S. W. 881, | question is whether or not the definition given the court held that the burning of a house arson in the statute has made any change by the owner does not constitute the crime which affects this case. of arson at common law for the reason that it is essential to the common-law offense that the property burned should be that of another person. The court further held that the common-law rule in this respect has not been changed by our statute defining arson. [1] At common law not only the bare dwelling house, but all the outhouses which are a parcel thereof, though not contiguous thereto, or under the same roof, as barns and stables, may be the subject of arson. Cooley's Blackstone, Book 4, *p. 221, and Greenleaf on Evidence (15th Ed.) vol. 3, par. 52. In the same section the learned author says that if a landlord or reversioner sets fire to his own house, of which another is in possession under a lease from himself, or from those whose authority he hath, it shall be accounted arson. [2] Under the common law and under statutes which follow the common law and make no changes in it, arson is an offense against the possession rather than against the property itself; and a tenant who is in possession of and in actual occupancy of the building burned, under a lease, cannot be guilty of arson in burning it. State v. Young, 139 Ala. 136, 36 South. 19, 101 Am. St. Rep. 21; State v. Fish, 27 N. J. Law, 323; State v. Hannett, 54 Vt. 83; State v. Lyon, 12 Conn. 487; Snyder v. People, 26 Mich. 106, 12 Am. Rep. 302, case note 1 A. & E. Ann. Cas. at page 621; Greenleaf on Evidence (15th Ed.) vol. 3, par. 54; Wharton on Criminal Law (11th Ed.) vol. 2, § 1051; Bishop's New Criminal Law, vol. 2, § 13. In Allen v. State, 10 Ohio St. Rep. 287, the court pointed out that at common law for a tenant to burn a building belonging to another, of which he was in possession, was a high misdemeanor, and punished by fine and pillory and surety required for future good behavior. The word "house" in the definition of arson at the common law imports a dwelling house; and as we have already seen the term "dwelling house" comprehends not only the mansion house, but all outhouses which are a parcel thereof, though not contiguous to it. The words "or other tenement" are not to be deemed to have been used in the statute as synonymous with the word "house." Tenement in its broadest sense signifies everything that may be holden, provided it be of a permanent nature. In its restrictive sense it is only applied to houses and other buildings. Blackstone, Com. by Lewis, Book 2, *p. 17. The word "other," as defined by the Century Dictionary, means a different person or thing from the one in view or under consideration or just specified; additional. So it may be said that the word "house" means the dwelling house and outhouses which are a part thereof, and the words "or other tenement" mean a house occupied by a tenant. This would give effect to and harmonize the words used in the statute. The use of the word "other" in connection with the word "tenement" emphasizes the fact that the Legislature did not intend to use those words as synonymous with the word "house." For the word "other" indicates that the Legislature had in view a building different from the one just specified. In short we are of the opinion that the framers of the statute in defining arson intended to abrogate the common-law rule that a lessee could not be guilty of a felony in burning the premises occupied by him as such. Counsel for the state in support of their contention cite the cases of State v. Moore, 61 Mo. 276, Allen v. State, 10 Ohio St. 287, Garrett v. State, 109 Ind. 527, 10 N. E. 570, and other cases of like character. We have not cited these cases or referred to them as sus [3] The section of our statute which de- taining the conclusion reached by the court fines arson reads as follows: "Arson is the willful and malicious burning the house or other tenements of another person." Kirby's Digest, § 1575. for the reason they were rendered under statutes which have wrought many and radical changes in the common-law offense of arson. All of these cases, however, recognized This section was a part of the Revised the common law to be as we have stated it. Statutes, and it is a rule of construction in Indeed the common law on the subject is esthis state that the common law in force at tablished by an unbroken chain of decisions, the time the statute was passed is to be takEnglish and American. An examination of en into account in construing the statute. the statutes of each of the states in the cases State v. Pierson, 44 Ark. 265; Furth v. cited by counsel for the state show that they Furth, 97 Ark. 272, 133 S. W. 1037, Ann. Cas. have no section of the statute defining arson 1912D, 595, and State v. Hanna, supra. In as we have. The statutes on their faces inthe first-mentioned case Chief Justice Cock rill said: "Coke says, "To know what the common law was before the making of the statute is the very lock and key to set open the windows of the statute.'" dicated that the Legislature intended to make radical and sweeping changes in the common law. For instance section 1 of the Missouri statute (Wag. St. c. 42, art. 3) makes it arson in the first degree to set fire to or burn any It must be assumed, then, that the law- dwelling house, bridge, etc., in which there makers had in mind the above summary of shall be at the time some human being. Secthe common law when they framed our tion 3 provides that setting fire to a shop, section of the statute defining arson. The warehouse, etc., adjoining any inhabited dwelling house, shall be arson in the second [ degree. Section 5 provides that setting fire to or burning any house, building, etc., or vessel of another, shall be arson in the third degree. Appeal from Circuit Court, Benton County; J. S. Maples, Judge. Action by J. H. Keith against W. A. O'Leary. Judgment for plaintiff, and defendant appeals. Affirmed. In the case of the State v. Moore, supra, This action was brought by the appellee the court held that under the statutory pro- against appellant to recover a balance of visions of arson in the state of Missouri the $314 alleged to be due on the purchase offense in the third degree was directed not price of 986 barrels of apples which appelat the possession, but at the property of an-lant purchased of the appellee. Appellant other, and on that account made a radical denied that it was due appellee any sum. change in the common law, so that a tenant It set up that it had entered into a contract might commit arson with respect to the house with the appellee to buy eight cars of apples occupied by himself. Both the Ohio and the No. 1 and No. 2 grade; that appellant had Indiana statutes made it arson to burn the received these cars, and they were not up house of any other person of a certain desig- to the specified grade; that they were innated value. There were also other provi- ferior in quality, and the barrels lacked sions in the statutes indicating the intention about four or five inches of being full, and of the Legislature to make radical changes were therefore not properly packed; that, in the common law. It was also said that the statutes against the burning of buildings were not confined to the common-law offense in those states. Therefore we have preferred to place our decision upon what we believe to be the plain and ordinary meaning of the words used in the statute when taken in connection with the other words used and the common law on the subject. In our other cases on the subject the court has recognized that the common-law definition of arson has not been materially changed, except to add other buildings which were not the subject of arson at the common law. It follows that the circuit court erred in holding that, under our statute, the tenant or lessee in possession was not guilty of arson if he burned the dwelling of which he was in possession. It does not follow, however, that the court erred in sustaining a demurrer to the indictment. Therefore the judgment will be reversed, with directions to overrule the demurrer, and for further proceedings according to law. (134 Ark. 36) O'LEARY v. KEITH. (No. 309.) (Supreme Court of Arkansas. April 22, 1918.) 1. APPEAL AND ERROR 999(1)-SCOPE OF REVIEW-FINDING OF FACTS. The jury's verdict upon a matter properly submitted to it is conclusive on appeal. 2. APPEAL AND ERROR 1051(1)-HARMLESS ERROR. In action for balance due on apples purchased, where defendants set up improper packing and consequent damage, admission of plaintiff's testimony that he had instructed his packers to do a good job was not prejudicial, where one of the packers had already testified without objection that he had been instructed to do a good job. 3. ACCORD AND SATISFACTION 27 QUESTIONS FOR JURY. Evidence held to present a jury question whether acceptance of check for less than the amount due on the price of apples was an accord and satisfaction. while appellant was unloading the cars of The undisputed evidence shows that the appellee sold to appellant eight cars of apples on which appellant made complete payment as to two. On the other six cars he deducted 50 cents per barrel. The testimony on behalf of the appellant tends to prove that this deduction was made by agreement with the appellee through his son, who was acting as appellee's agent or partner. Testimony on behalf of appellant tends to prove that Russell Keith visited Little Rock, and upon being shown the apples agreed that they were short in quantity and inferior in quality, and for that reason made the deduction; |