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of equity, unless appellant elects to com- , 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 The cause is therefore remanded for fur- and was rather promiscuous in his attention ther proceedings, if necessary, in accordance to other women, and from some of these exwith this opinion.

cursions other children were born, of which he was the reputed father, we are not able

to say that the chancellor's finding is clearly BLACK et al. v. YOUMANS. (No. 146.)

against the preponderance of the testimony.

Section 3, Act Feb. 6, 1867, provides: (Supreme Court of Arkansas. Oct. 4, 1915.)

“That all negroes and mulattoes who are now SLAVES Om 25 - LEGALIZING COHABITATION - cohabiting as husband and wife, and recognizing STATUTE.

each other as such, shall be deemed lawfully Act Feb. 6, 1867 (Laws 1866–67, p. 99) 8 married from the passage of this act, and shall 3, legalizing the living together as husband and be subject to all the obligations, and entitled to wife of all negroes and mulattoes and making all the rights appertaining to the marriage relatheir children legitimate, although never carried tion; and in all cases, where such persons now into the Code, is still in force, and where the are, or have heretofore been so cohabiting, as child of such parties was recognized, he is capa- husband and wife, and may have offspring recogble of transmitting inheritances, since the stat- nized by them as their own, such offspring shall ute does not become inoperative from long dis- be deemed in all respects legitimate, as fully as use, and vendees of his heirs take good title to if born in lawful wedlock.” Laws 1867, p. 99. the inherited property.

Said act, for some

unknown reason, [Ed. Note.-For other cases, see Slaves, Cent. has not been carried into the Digests of the Dig. $$ 114, 115; Dec. Dig. Omm 25.]

Statutes of Arkansas, but it has not been Appeal from Lafayette Chancery Court; repealed, and the conditions requiring its J. M. Barker, Chancellor.

passage for the protection of the children of Action by F. W. Youmans against Dolly slaves who could not legally marry, and the Black and another. From a decree quieting transmission of property acquired by them, title in plaintiff, defendants appeal. Af- have not passed, nor the reason therefor firmed.

failed. Marriages between negroes falling R. L. Montgomery, of Lewisville, and Hal within its provisions have been held valid, L Norwood, of Little Rock, for appellants. and children born of and recognized as their Searcy & Parks, of Lewisville, for appellee. offspring by the parties have been held legiti

mate and capable of transmitting inheritKIRBY, J. This is a controversy about a ances, and the statute has not become obso40-acre tract of land in Lafayette county, lete nor inoperative from long disuse. ScrogArk. Tom Bridges, a negro, acquired it from gins v. State, 32 Ark. 205; Gregley v. Jackthe government by patent as a homestead, son, 38 Ark. 487. and died in possession in 1912, leaving him

Viney, the recognized child of this slave surviving his widow, Ellen Bridges, and sis- marriage, was legitimate, and her son, George ter, Dolly Black, who claimed to be his only Williams, inherited the land in controversy heir. They conveyed the land on July 25, from his grandfather, Tom Bridges.

The decree is affirmed. 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 MCDONALD v. CITY OF PARAGOULD. . the only heir of Viney Williams, the only

(No. 150.) child of Tom Bridges, and in this suit to (Supreme Court of Arkansas. Oct. 4, 1915.) cancel the deeds from Dolly Black and Mont- LICENSES 14-ORDINANCE-CONSTRUCTION. gomery to Burton as clouds upon the title An ordinance by the city of Paragould rerecovered a decree below, from which this quiring the payment of a license fee by persons appeal is prosecuted.

operating vehicles "for the transportation of

passengers for hire within the city limits" does It appears from the testimony that Tom not apply to the transportation of passengers Bridges, a slave, was married to Mandy from points within the city to points outside, Cryer, another slave, after the manner of and vice versa. slavery marriages, and lived with her as his cent. Dig. SS 25-29; Dec. Dig. Om 14.]

[Ed. Note.-For other cases, see Licenses,

$$ 25–29 wife until her death after emancipation, and that there was born to them an only child,

Kirby, J., dissenting.

, called Viney, who was recognized by them Appeal from Circuit Court, Greene Counas their child, and that George Williams, ap-ty; Wm. J. Driver, Judge. pellee'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

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

territorial limits in the passage of the ordiThe city of Paragould enacted an ordi- nance, and it has already been held that the nance prescribing a license fee of $15 and owner of an automobile or motor vehicle providing:

shall not be required to obtain any other li"Every person owning, keeping or running any cense or permit to use and operate the same hackney coach, automobile or any other vehicle than that required by Act 134 of the Acts of or conveyance, for the transportation of passen- 1911. Helena v. Dunlap, 102 Ark. 131, 143 gers for hire within the limits of the city of S. W. 138. But section 13 of said act exParagould, is hereby required to take out and procure a license from the city clerk for each pressly declares it shall not be construed “to hackney coach, automobile or other vehicle or affect the power of municipal corporations conveyance so used."

to make and enforce ordinances, rules and Appellant resides in the city and owns and regulations affecting motor nicles which keeps an automobile therein upon which he are used within their limit for public hire.” had paid the state license, and which was The court is of opinion that the ordinance, used in carrying passengers for hire from properly construed, means only to require within the city limits to the fair grounds the owner or keeper of an automobile "for outside thereof, and from the fair grounds the transportation of passengers for hire back to different portions of the city, and within the limits of the city” to pay the lifrom within the city limits to the town of cense fee, and, since the appellant did not Walcott, 12 miles distant, and from Walcott keep or operate his automobile for the transback into the limits of the city of Para- portation of persons for hire from and to gould. He at no time carried persons for points within the city, that he was not ushire from one point to another within the ing it for transportation of passengers for city limits. He refused to pay the license re- hire within the limits of the city, in violaquired by the ordinance and was convicted tion of the ordinance. The terms of the orand fined for a violation thereof, and, upon dinance are satisfied by holding that license appeal to the circuit court, was again con- taxes are to be imposed only by that muvicted, and prosecuted this appeal from the nicipality in which the business or occupajudgment of conviction.

tion is carried on or conducted. Bennett v. M. P. Huddleston and Robt. E. Fuhr, both Birmingham, 31 Pa. 15; Cary v. North Plainof Paragould, for appellant. T. C. Shane, field, 49 N. J. Law, 110, 7 Atl. 42; Common

. of Paragould, for appellee.

wealth v. Stodder, 2 Cush. (56 Mass.) 562,

48 Am. Dec. 679; Gettysburg v. Zeigler, 2 SMITH, J. (after stating the facts as Pa. Co. Ct. R. 326. above). The authority of the city to enact

Appellant's business not being conducted the ordinance under section 5450 of Kirby's within the city limits, a refusal to pay the Digest is not questioned, and there is no license did not constitute a violation of the contention that the license fee required to ordinance, and the judgment is reversed, and be paid thereunder is unreasonable. It is the cause dismissed. contended only that the city is without power to regulate or restrict the operation of Mr. Justice KIRBY thinks the judgment automobiles outside its limits, and that the should be affirmed, and dissents from the business carried on by appellant was not court's opinion. He is of opinion that the within the limits of the city and subject to statutes authorize the passage of such an orregulation by it under the terms of the ordi- dinance which, by its terms, necessarily innance.

cludes the business of operating an automoIt is argued in support of this contention bile for the transportation of passengers that, if the city of Paragould, within which for hire within the city limits, whether the the passengers were collected and discharg- journey of the passengers is begun and comed in the business of carrying to and from pleted therein, or not. That since appellant the fair grounds beyond the city limits and took on his passengers at any place in the to and from the other town, has the power city designated by him or where persons deto require the payment of any such license, sired to embark, and, returning from outeach city or town through and into which side the limits, discharged passengers likethe automobile might go upon its different wise, and kept his machine within the city trips would have a like power, and that the where such business was conducted, that he payment of a license to each of them would was violating the ordinance in the conduct be so onerous and burdensome as to be ab- thereof; that the city not only had the ausolutely prohibitive, and that only that mu- thority to fix the license for the carrying on nicipality in which the business or occupa-, of business, as conducted by appellant, but tion is wholly carried on or conducted basi has done so in the passage of the particular any such power.

ordinance. Arkadelphia Lumber Co. v. ArkThere is no attempt upon the part of the adelphia, 56 Ark. 370, 19 S. W. 1053.

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Wm. L. Moose, Atty. Gen., and Jno. P. McDANIEL, State Treasurer, v. HERRN. Streepey, Asst. Atty. Gen., for appellant. (No. 156.)

T. I. Herrn, pro se. (Supreme Court of Arkansas. Oct. 11, 1915.)

WOOD, J. (after stating the facts as above). 1. TAXATION Om 895 — INHERITANCE TAXES — The above act provides that all property in EXEMPTIONS="PROPERTY OR ANY INTEREST this state which shall pass by will or by the 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 there- sion to take effect after the death of the in shall pass to certain heirs and descendants, grantor or donor, shall be liable to a tax for the rate of inheritance shall be $1 on every the use of the state which shall constitute $100 of the market value of such property received, provided that any estate which may be a lien on the property charged with the tax. valued at a less sum than $5,000 shall not be Section 3 of the act is as follows: subject to any tax, the excess over such sum “When the property or any interest therein only being taxed, the $5,000 is to be deducted shall pass to a grandfather, grandmother, faonly after the property or interest therein of the ther, mother, husband, wife, lineal descendant, respective parties has been passed or distribut- brother, sister, or any adopted child, in every ed to or received by them and the tax imposed such case the rate of tax shall be one dollar upon the remainder; the words "property or on every hundred dollars of the clear market any interest therein" and the word "estate" be- value of such property received; provided, that ing synonymous and referring to the property any estate which may be valued at a less sum only after distribution.

than five thousand dollars ($5,000) shall not be [Ed. Note. For other cases, see Taxation, subject to any tax, the excess over such sum Cent. Dig. $$ 1714-1721; Dec. Dig. Om 895. only being taxed."

For other definitions, see Words and Phrases, [1] The sole question presented by this apFirst and Second Series, Estate.]

peal is whether or not the $5,000 specified in 2. STATUTES 184-CONSTRUCTION – LEGIS- section 3 is to be deducted from the amount LATIVE INTENT.

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 the remainder, or whether the amount exlanguage used is susceptible of more than one empted is to be deducted only after the prop. construction, that meaning must be given to it erty, or interest therein, of the respective which is in harmony with the purpose to be attained, rather than a construction which would parties has been passed or distributed to and tend to defeat it.

received by them; in other words, as to [Ed. Note.- For_other cases, see Statutes, whether the tax is to be imposed according to Cent. Dig. $ 262; Dec. Dig. Om 184.]

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.

been passed or distributed and received by Action by Rufus G. McDaniel, State Treas- them, or whether it should be imposed upon urer, against T. I. Herrn, administrator, to the classes on the value of the entire estate collect inheritance taxes. From the judg- after deducting the $5,000 exemption specie ment rendered, plaintiff appeals. Afiirmed.

fied. Section 4 of the act provides: James Cochran died on the 26th day of shall pass to any uncle, aunt, niece, nephew, or

“When the property or any interest therein May, 1911, leaving an estate value at $23,- any lineal descendant of the same, in every such 816.65. Annie P. Cochran, his widow, re- case the rate of tax shall be two dollars on evceived $5,207.40. Mrs. Herrn, the daughter ery one hundred dollars of the clear market valof Cochran, received $9,301.62, and six chil- ue of such property received, in excess of the

sum of $2,000.00.”. dren 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 ed and passing under the statute before the

, appellee, who was the administrator of 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 re

named as beneficiaries under the statute, and bate court, and upon appeal to the circuit mainder and paid by all the distributees or 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

But no ject to a tax under Act 303 of the Acts of amount in excess of $5,000 or not. 1909, and accordingly deducted from the such question was raised or considered there.

In that case we said: amounts received from them, respectively, the sum of $5,000, and rendered judgment is the validity of the act of the Legislature ap

"The only question presented by this appeal in accordance with his holding, from which proved May 17, 1907, amending the inheritance this appeal has been duly prosecuted. No tax law. The constitutionality of the act is question is raised here as to whether the in- challenged; it being contended that it makes an terest of Mrs. Cochran as widow is subject from taxation estates of the third class exceed

arbitrary classification of estates and exempts to the tax.

ing $50,000 in value."

Om 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 act now under review. See Act 197 of the held that the statute, which was very similar Acts of 1913. This is the correct interpretato the one under consideration, was a provi- tion of these words as used in the statute now sion for an inheritance tax, and not for a tax | under consideration. on property; that it provided for a tax upon There would be no ambiguity whatever the privilege of the right of succession to about the statute were it not for the word property, and, as such, was not subject to the “estate,” used in section 3 of the act above same test with respect to its equality and in the clause, “provided that every estate,” uniformity as taxes levied upon property. etc.

upon property. etc. But when the word “estate” as there True, Mr. Justice Kirby, speaking for the used is considered in connection with the court, said:

language of the remainder of the section and "The manifest intention of the act was to levy the language of section 4, it is clear that the the taxes alike upon all property of the estate, term "estate” was used synonymously with determining the tax by the amount or value of property in the different classes in which it the words “property or any interest therein." was divided, and it was not intended that estates The words "estate" and "property" are freabove $50,000 in value, passing to strangers, quently used as convertible terms; they are should escape payment of the tax."

often synonymous in meaning, depending upThe appellant relies upon this language on the context. See Funk & Wagnali'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

In St. L., I. M. & So. Ry. Co. v. State, 102 contention in that case was that the act was Ark. 205-208, 143 S. W. 913, 914, we quoted unconstitutional because under the classifica

from Green v. Weller, 32 Miss. 650, as foltion therein provided estates exceeding in

lows: value the sum of $50,000 were exempt from

"The true sense in which words are used in a taxation, and that therefore the act violat- statute is to be ascertained generally by taking ed the provision of the Constitution requir-them in their ordinary and popular signification, ing that taxes shall be equal and uniform. or, if they be terms of art, in their technical The language quoted above was used in an- position that the intention is to be deduced from

meaning. a of swer to that contention. In the latter part the whole, and every part of the statute, taken of the opinion in that case the court said: and compared together-from the words and

"The statute, so construed, violates no equal context-and such construction adopted as will ity provisions of the Constitution, and it, being effectuate the intention of the lawmakers." Pota statute taxing privileges and not property, ter's Dwarris on Stat. 197, 201. does not conflict with the uniformity provision. But it divides the value of estates passing to

Now it was the manifest purpose of the certain classes of persons into certain amounts, lawmakers, as gathered from the language of a reasonable classification for the purpose of the act under consideration, to exempt cerlaying or levying a progressive inheritance tax, tain classes of individuals and the particular and treats all persons within the classes designated alike and without discrimination, and is a individuals coming within those classes from valid enactment."

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 tention of the Legislature, it seems clear to This error was not discovered, and the disus that it would have made some provision in trict was established by the county court as the statute for prorating the tax among the called for in the report of the surveyor. It several recipients of the entire estate of the was later discovered that there was an ap decedent.

parent discrepancy between the boundary of It follows that the judgment of the cir- the district as established and as advertised cuit court is correct, and it is therefore af- in the published notice. Appellant, who was firmed,

one of the property owners in the district, thereupon filed his complaint in equity, al

leging that this error and discrepancy, be PASCHAL v. SWEPSTON et al. (No. 148.) tween the published notice and the order es(Supreme Court of Arkansas. Oct. 4, 1915.) tablishing the district was fatal to the va1. DRAINS Eww14 – ESTABLISHMENT OF DIS- lidity of the district. The commissioners deTRICT-NOTICE-DESCRIPTION-VALIDITY.

murred to the complaint, their demurrer was boundaries of a proposed drainage district fixed sustained, and this appeal has been duly

the a starting point and described it so as not to prosecuted. enable an owner of land in the vicinity to ascer- It is conceded that the publication of the tain whether or not his lands were included, notice is a jurisdictional requirement, and this invalidated all the subsequent proceedings, though the calls, read in reverse order, would that the notice, as published, must contain a leave no uncertainty.

correct description of the district to be es[Ed. Note.-For other cases, see Drains, Cent. tablished. But it is urged that the error inDig. 88 5, 6; Dec. Dig. Om 14.]

dicated is a patent one, shown to be wrong 2. BOUNDARIES O3—COURSES AND DISTANC- by the balance of the description, and that ES-VIONUMENTS.

Where the descriptions of the boundaries the description published is certain and comof a tract are uncertain and conflicting, dis- plete and easily identifies the land of the distances yield to courses, and courses to monu-trict. In the establishment of the various

. ments.

kinds of improvement districts, jurisdiction [Ed. Note.-For other cases, see Boundaries, is conferred by the publication of a notice in Cent. Dig. 88 3–41; Dec. Dig. Om3.]

which the boundaries of the district are deAppeal from Crittenden Chancery Court; fined. Chas. D. Frierson, Chancellor.

In the case of Voss v. Reyburn, 104 Ark. Action by E. P. Paschal against W. W. 298, 148 S. W. 510, which was a proceeding Swepston and others. Decree for defend- for the establishment of a street improveants, and plaintiff appeals. Reversed and ment district, the court there said that: cause remanded, with directions.

"The object of designating the boundaries of

the district was to enable property owners inRose, Hemingway, Cantrell, Loughborough cluded therein and affected thereby to easily as& Miles, of Little Rock, for appellant. Brown certain what property was included in the dis& Anderson, of Memphis, Tenn., for appel

trict." lees.

It was there held that, where an attempted

publication of an ordinance creating an imKIRBY, J. This case presents a single provement district omitted two half blocks question of law for the consideration of the from the proposed improvement district, the court. The surveyor appointed by the coun- variance was material and destroyed the vaty judge of Crittenden county to make a pre- lidity of the attempted organization. liminary survey of certain territory for the In the case of Norton v. Bacon, 113 Ark. purpose of forming a drainage district filed 566, 168 S. W. 1088, it was held that the publihis map and report showing the boundaries cation of a notice describing the land to be inof said district. Said district began at the cluded in the proposed improvement district is northwest corner of section 9, township 8 jurisdictional, and that the county court has north, range 6 east, and the last three calls no authority to form a district until notice has in the north boundary line were as follows: been published in accordance with the terms

"Thence west four and three-quarters of a of the statute, and that a variance between mile to the east bank of Big creek; thence in the description of lands to be included in a a southwesterly direction along the east, south, and west bank of Big creek to the northeast proposed road improvement district in the corner of the northwest quarter of the north- plat and in the notice was fatal and invalieast quarter of section 7, township 8 north, dated the formation of the district. In that range 6 east; thence west four and three-quar- case the published notice omitted 200 acres ters of a mile to the point of beginning."

of land included within it, and it was there A notice was published, in which the last

said: two calls of the boundary line were given as

"To exclude the territory from the plat would follows:

be to form a district of less territory than that “Thence in a southwesterly direction along included in the boundaries set forth therein ; the east, south, and west bank of Big creek to and, on the other hand, if we should include the northeast corner of the northwest quarter that territory in the district, it would be done of the northwest quarter of section 7, township without notice having been given to the owner 8 north, range 6 east; thence west four and as required by the statute. So we think that three-quarters of a mile to the point of begin- there is a fatal variance between the descripning.”

tion of the lands embraced in the notice and

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