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of equity, unless appellant elects to com- I shows, too, not only that Viney Williams was plete the contract by tendering the purchase recognized as their child by her parents, but price, in which event appellees should be generally by all as the child of Tom Bridges given a reasonable opportunity to perfect and Mandy, who lived together during the title so as to make it marketable. If, slavery as husband and wife, and after the then, the appellees fail to comply in that War until Mandy's death, and, although respect, appellant can assert his right for there is testimony tending to show that old the return of the money. 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:

The cause is therefore remanded for further proceedings, if necessary, in accordance with this opinion.

BLACK et al. v. YOUMANS. (No. 146.)
(Supreme Court of Arkansas. Oct. 4, 1915.)
SLAVES 25-LEGALIZING COHABITATION
STATUTE.

Act Feb. 6, 1867 (Laws 1866-67, p. 99) § 3, legalizing the living together as husband and wife of all negroes and mulattoes and making their children legitimate, although never carried into the Code, is still in force, and where the child of such parties was recognized, he is capable of transmitting inheritances, since the statute does not become inoperative from long disuse, and vendees of his heirs take good title to the inherited property.

[Ed. Note.-For other cases, see Slaves, Cent. Dig. §§ 114, 115; Dec. Dig. 25.]

"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, act, for some unknown reason, has not been carried into the Digests of the Statutes of Arkansas, but it has not been

Appeal from Lafayette Chancery Court; repealed, and the conditions requiring its J. M. Barker, Chancellor.

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R. L. Montgomery, of Lewisville, and Hal L. Norwood, of Little Rock, for appellants. Searcy & Parks, of Lewisville, for appellee.

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, Dolly 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.

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. LICENSES

Oct. 4, 1915.) 14-ORDINANCE-CONSTRUCTION.

An ordinance by the city of Paragould requiring 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.

Cent. Dig. §§ 25-29; Dec. Dig. 14.]
[Ed. Note.-For other cases, see Licenses,

Kirby, J., dissenting.

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 Bill McDonald, Jr., was convicted and of said Viney Williams. The testimony fined for violation of an ordinance of the

Appeal from Circuit Court, Greene County; Wm. J. Driver, Judge.

City of Paragould, and he appeals. Re- city to extend its jurisdiction beyond its versed.

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."

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 trans

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 Para-portation of persons for hire from and to gould. 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 ordi

nance.

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. ArkThere is no attempt upon the part of the adelphia, 56 Ark. 370, 19 S. W. 1053.

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.

MCDANIEL, State Treasurer, v. HERRN.

Wm. L. Moose, Atty. Gen., and Jno. P. Streepey, Asst. Atty. Gen., for appellant. T. I. Herrn, pro se.

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

sion 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:

(No. 156.) (Supreme Court of Arkansas. Oct. 11, 1915.) 1. TAXATION 895- INHERITANCE TAXES EXEMPTIONS "PROPERTY OR ANY INTEREST THEREIN"-"ESTATE. Under Acts 1909, Act 303, p. 906, § 3, pro-intestate laws, or by sale or gift in possesviding 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.

Taxation,
895.

[Ed. Note. For other cases, see
Cent. Dig. §§ 1714-1721; Dec. Dig.
For other definitions, see Words and Phrases,
First and Second Series, Estate.]

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2. STATUTES 184-CONSTRUCTION LEGISLATIVE INTENT.

"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."

[1] 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 propIn construing a statute the object to be at-erty of the decedent and the tax imposed on tained 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.

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 beneAppeal from Circuit Court, Sharp County; ficiaries in the act after the property has J. B. Baker, Judge.

[Ed. Note. For other cases, see Statutes, Cent. Dig. § 262; Dec. Dig. 184.]

Action by Rufus G. McDaniel, State Treasurer, against T. I. Herrn, administrator, to collect inheritance taxes. From the judgment rendered, plaintiff appeals. Affirmed.

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:

shall pass to any uncle, aunt, niece, nephew, or "When the property or any interest therein 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."

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, deceas- Ark. 175, 139 S. W. 1112, as authority for his Appellant relies upon State v. Handlin, 100 ed, received each the sum of $1,329.23, or a contention that the $5,000 must be deducted total of $9,304.62. This suit was brought by from the value of the entire estate mentionthe appellant, as state treasurer, against the appellee, who was the administrator of the ed and passing under the statute before the estate of James Cochran, to collect inherit- same has been passed or distributed to those ance taxes. The case was begun in the pro- that the tax is to be imposed upon the renamed as beneficiaries under the statute, and bate court, and upon appeal to the circuit court, upon the above facts, that court found mainder and paid by all the distributees or that the amounts received by Mrs. Cochran beneficiaries of the estate under the statute, and Mrs. Herrn in excess of $5,000 were sub-regardless of whether they have received an ject 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 question is raised here as to whether the interest of Mrs. Cochran as widow is subject to the tax.

amount in excess of $5,000 or not. But no such question was raised or considered there. In that case we said:

is the validity of the act of the Legislature ap"The only question presented by this appeal proved May 17, 1907, amending the inheritance tax law. The constitutionality of the act is challenged; it being contended that it makes an from taxation estates of the third class exceedarbitrary classification of estates and exempts ing $50,000 in value.'

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For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

In the case of State v. 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."

act now under review. 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 upThe appellant relies upon this language on the context. See Funk & Wagnall's New of the opinion to support his contention that Standard Dictionary of the English Lanthe tax must be levied upon the entire estate guage, "Estate," "Property." as of the property of the decedent, after de[2] It is a well-established canon of inducting the amount of the exemption speci- terpretation that the object to be attained and fied. But the above language of the opinion the purpose of the Legislature are to be kept must be considered with reference to the in mind in construing a statute. If the lanquestion then before the court for decision, guage used in a statute is susceptible of more and, when so considered, it will be seen that than one construction, then the meaning must it had no reference whatever to the issue now be given to it which is in harmony with the to be decided. The language used was merely purpose to be attained rather than a conby way of argument to show that the classi-struction which would tend to defeat it. 23 fication provided by the act for determining Am. & Eng. Enc. Law (1st Ed.) p. 319, and the amount of the inheritance tax to be paid cases cited in note. did not render the act unconstitutional. The

contention in that case was that the act was
unconstitutional because under the classifica-
tion therein provided estates exceeding in
value the sum of $50,000 were exempt from
taxation, and that therefore the act violat-
ed the provision of the Constitution requir-
ing that taxes shall be equal and uniform.
The language quoted above was used in an-
swer to that contention. In the latter part
of the opinion in that case the court said:
"The statute, so construed, violates no equal-
ity 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 desig-
nated alike and without discrimination, and is a
valid enactment."

In St. L., I. M. & So. Ry. Co. v. State, 102 Ark. 205-208, 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 position that the intention is to be deduced from meaning. But it is also a cardinal rule of exthe 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 The words "property or any interest there- individuals received property, or an interest in" and the word "estate," as used in the sec- therein, of a greater value than the amount tion above quoted, have reference to the prop- specified as exempting them from the tax. erty, or any interest therein, after it has The purpose of the Legislature was not to been passed, transferred, or distributed to tax all persons who might have property or and received by the respective persons men- who were beneficiaries of an estate under tioned in the statute, whether they take as sections 3 and 4 of the statute, but to tax individual or corporate legatees or devisees, only those persons of the classes named who vendees, donees, or grantees, heirs, next of might receive property of the value of more kin, etc.; and the amounts of $5,000 and than $5,000 and $2,000, respectively. But if $2,000 show the value of the estate for which the construction contended for by the state an inheritance tax shall be imposed on the be correct, then every beneficiary in the persons receiving the same, according to the class mentioned in section 3 would have to respective classifications into which the stat- pay a part of the tax there imposed, regardute divides them. This was declared to be less of whether the value of the property or the meaning of the words "estate" and "prop-interest therein which they received exceeded erty" in an act passed in 1913, repealing the 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 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. 14.]

2. BOUNDARIES 3-COURSES AND DISTANCES-MONUMENTS.

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 disIn 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.

Where the descriptions of the boundaries of a tract are uncertain and conflicting, distances yield to courses, and courses to monu-trict. ments.

[Ed. Note. For other cases, see Boundaries, Cent. Dig. §§ 3-41; Dec. Dig. 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."

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 omitted 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

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