tion, in prohibiting the taking of property with- | inent domain by private corporations, and out compensation, refers to the usual method of has no application to the exercise of that payment by the state, or its subdivisions, which, in the case of demands against a county, is by power by the state or subdivisions thereof. warrant on the treasury. We held recently, in the case of City of Paragould v. Milner, 170 S. W. 78, that the provision just quoted has no application to condemnations by municipal corporations.

[Ed. Note. For other cases, see Eminent Domain, Cent. Dig. §§ 198, 199; Dec. Dig. & 75.]

3. EMINENT DOMAIN 75-COMPENSATIONCONSTITUTIONAL PROVISIONS.

Property taken for a highway is not taken without compensation, though the quorum court has made no specific appropriation for expenditure on roads, as the constitutional guaranty is answered by general laws affording means to the landowner of obtaining compensation, and the landowner has a clear remedy to compel the levy of an appropriation of funds to pay the damages assessed in his favor.

[2] The Declaration of Rights (section 22) announces the principle that the right of property is before and higher than any constitutional sanction, and that "private property shall not be taken, appropriated or damaged for public use without just compensation therefor." This provision of the Constitution is relied on by counsel for appellant in their contention that payment or a provision for payment in depreciated county scrip cannot be treated as compensation within the meaning of the language of the Constitution. It is argued that the words "just Appeal from Craighead Chancery Court; compensation" mean payment in money, and Chas. D. Frierson, Chancellor. that nothing else will conform to the conSuit by P. C. Barton against R. L. Ed-stitutional guaranty. The use of the word wards, County Judge, and others. From a "compensation" alone implies payment in decree dismissing the complaint, plaintiff appeals. Affirmed.

[Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. §§ 198, 199; Dec. Dig. 75.]

Smith, J., dissenting.

Basil Baker and Horace Sloan, both of Jonesboro, for appellant. Jno. R. Turney, of Jonesboro, for appellees.

money, but the fact that the emphatic language used in section 9, art. 12, is not employed in the Declaration of Rights shows that the framers of the Constitution did not mean to require actual payment in money before the state or a county or municipality could exercise the right of eminent domain. The law was well settled to the contrary long prior to the adoption of the Constitution of 1874, and it is to be presumed that the framers of the Constitution used the word in the light of its interpretation by courts when used under similar circumstances. It has quite generally been held, under similar provisions of the Constitution, that payment need not precede the taking of the property.

Judge Cooley wrote as follows on that subject:

MCCULLOCH, C. J. A public road was, by order of the county court, established through appellant's land in Craighead county, the proceedings for laying out the road being conducted in accordance with the statutes on that subject, and appellant was awarded the sum of $575 as compensation for his damages. County warrants of that county are considerably below par, and appellant refused to accept a warrant, and insists that the county must in some way pay him his damages in money before the land can be taken for use as a public road. He instituted this action in the chancery court "When the property is taken directly by the against the county judge to prevent the open-state, or by any municipal corporation by state ing of the road before compensation is paid authority, it has been repeatedly held not to be to him in money. essential to the validity of a law for the exerThe chancellor decided cise of the right of eminent domain that it against appellant and dismissed his com- should provide for making compensation before plaint for want of equity, and he insists the actual appropriation. It is sufficient if prohere on appeal that the constitutional guar- vision is made by the law by which the party can obtain compensation, and that an impartial anty with respect to payment of compensa-tribunal is provided for assessing it. The decition for property taken for public use has sions upon this point assume that, when the not been complied with. state has provided a remedy by resort to which the party can have his compensation assessed, adequate means are afforded for its satisfaction; since the property of the municipality, or of the First, section 9 of article 12, which reads state, is a fund to which he can resort without as follows:

[1] Counsel seem to rely upon two provisions of the Constitution:

risk of loss." Cooley's Constitutional Limitations (7th Ed.) p. 813.

"No property, nor right of way, shall be appropriated to the use of any corporation until The same principle is announced in somefull compensation therefor shall be first made to the owner, in money, or first secured to him what different language in many decisions. by a deposit of money, which compensation, ir- The Supreme Court of Wisconsin, in the respective of any benefit from any improvement case of State ex rel. Burbank v. City of Suproposed by such corporation, shall be ascertain

ed by a jury of twelve men, in a court of compe-perior, 81 Wis. 649, 51 N. W. 1014, said: tent jurisdiction, as shall be prescribed by law." "Where property is taken for a public use by a municipal or quasi municipal corporation, the taxable property thereof constitutes a fund to which the owner may resort in the way point

That section was intended, however, to apply only to the exercise of the right of em

ed out by law, and the existence of a method by [ is one of the exceptional burdens which the which payment may thus be compelled satisfies the constitutional requirement."

The same doctrine has been announced by the New Jersey courts in the following language:

"But it is not necessary that compensation should precede the actual appropriation, where the property is taken by the state, or by a municipal corporation by state authority. It is sufficient that an adequate remedy is provided, which the party may resort to on his own motion to recover compensation." Loweree v. City of Newark, 38 N. J. Law, 151.

The same rule is announced in many decisions of the New York court of last resort, and the only exception found in the cases of that state is the case of Sage v. City of Brooklyn, 89 N. Y. 189, where the court, after stating the rule generally recognized, held that, where the owner was remitted to a fund not obtained by general taxation, but by taxation on benefits within a limited district, the constitutional guaranty was not

satisfied.

There is, indeed, some authority for the position of counsel, and Mr. Lewis, in his work on Eminent Domain (volume 2, § 679), after stating the general rule, adds this exception:

"But, if it can be shown that the resources of a municipal corporation, from taxation or otherwise, are insufficient to enable it to make compensation in a reasonable time, an entry will be enjoined until security is given."

citizen is expected to bear. County warrants are receivable for county taxes, and in this way the policy of the law is to give them the greatest facility for circulation. It is thought that by reason of the fact that warrants are thus receivable for taxes, and are payable out of funds found to be in the treasury when presented, the citizen is given satisfaction for any demand against the county, either voluntary or involuntary. The language of our Constitution was framed with reference to that method of payment, and it is to be presumed that its framers intended to express that meaning in the use of the words "just compensation," to be rendered to one whose property is taken for public

use.

[3] It is further insisted that the award of damages is void, and that appellant cannot be accorded just compensation, for the reason that the quorum court has made no specific appropriation for expenditures on roads. It is sufficient to say, however, that the constitutional guaranty is answered by general laws which afford means to the landowner of obtaining compensation. There has been an assessment of his damages, and he has a clear remedy to compel the levy of an appropriation of funds to pay the award. This is sufficient to dispose of the case without undertaking to pass upon the question whether or not a specific appropriation of road funds is necessary under the constitutional amendment which authorizes the levying mills for road purposes, when a majority of court to make an additional levy of three the electors have voted in favor of it at the preceding election.

The decree of the chancellor is affirmed.
SMITH, J., dissents.

137

CALLOWAY v. STATE. (No. 139.) (Supreme Court of Arkansas. Oct. 4, 1915.) INDICTMENT INFORMATION GRAND JUROR-DISQUALIFICATION-EFFECT. Under the express provisions of Kirby's Dig. § 2245, the validity of an indictment cannot be questioned on motion to quash, on the ground that a member of the grand jury which returned it was not qualified to act.

Only one case is cited in support of that statement, namely the case of Keene v. Bristol, 26 Pa. 46. We do not think that the rule stated by that author is in accord with sound reason on the subject, and we decline to adopt it. It would be an unsafe rule to say that the power of the state or its subdivisions, such as counties and municipalities, in the exercise of the right of eminent domain, is impaired by inability to make immediate payment, unless it is so expressed in the letter of the Constitution. There ought to be, and is, a presumption that the public purse will prove sufficient to meet all just demands, and that, unless the Constitution expressly provides for payment in money in advance of the taking of property, it is to be presumed that language such as is ordinarily found in the state Constitutions prohibiting the taking of property without compensation refers to the usual method of payment by the state or its subdivisions. The only way in which demands against a county can be paid is by a warrant on the treasury (Rolfe v. Spybuck Drainage District, 101 Ark. 32, 140 S. W. 988), and every citizen, in dealing with the state or county or municipality, must take chances on that method of payment. The county could not exercise its function if anything more should be exacted. It works a hardship in excep⚫tional instances where county script is de- MCCULLOCH, C. J. Appellant was conpreciated to require a citizen to accept com-victed of murder in the second degree. There pensation in depreciated warrants, but that is no bill of exceptions in the record contain

and Information, Cent. Dig. §§ 480-487; Dec. [Ed. Note.-For other cases, see Indictment Dig. 137.]

Appeal from Circuit Court, Miller County; Geo. R. Haynie, Judge.

Louis Calloway was convicted of murder in the second degree, and he appeals.

firmed.

Af

Wallace Davis, Atty. Gen., and Jno. P. Streepey, Asst. Atty. Gen., for the State.

ing the proceedings during the trial; at least, the bill of exceptions is not authenticated in any manner and cannot be considered in the case.

There is, however, one question for consideration, which is brought up by a duly authenticated bill of exceptions. That relates to a motion to quash the indictment on the ground that a member of the grand jury was not a qualified elector of the county. The statute provides, however, that:

"No indictment shall be void or voidable because any of the grand jury fail to possess any of the qualifications required by law." Kirby's Dig. § 2245.

Appeal from Circuit Court, Randolph County; J. B. Baker, Judge.

Action by Nannie E. Webb against the Van Vleet-Mansfield Drug Company. From a judgment for defendant, plaintiff appeals. Affirmed.

T. W. Campbell and W. L. Pope, both of Pocahontas, for appellant. E. G. Schoonover, of Pocahontas, for appellee.

legations of the complaint. Nannie E. Webb, appellant in her own behalf testified substantially as follows:

HART, J. [1] Appellant instituted this action against appellee to recover damages alleged to have been sustained by reason of appellee wrongfully causing an attachment The statute is designed to cut off all in- to be levied on her property. Appellee anquiry concerning the validity of the indict-swered and made a general denial of the alment on the ground that the members of the grand jury were not qualified to act in that capacity. No objection appears, so far as is revealed by this record, to the grand jurors "I own a storehouse at Biggers, Ark., in as they were being impaneled, but appellant which was situated a stock of drugs owned by. raises the question of the qualifications of my husband, John T. Webb. On the 9th day of one of the jurors on a motion to quash the bill of sale for this stock of drugs and his houseDecember, 1912, my husband executed to me a indictment. It is unnecessary for us to de- hold goods. The consideration recited in the termine in this case what the effect would bill of sale was $100. The drugs sold to me were have been if objection had been made at the worth between $700 and $800; at least calcutime of impaneling the grand jury. We sim-lation they were worth between $600 and $700. Subsequently my husband bought drugs of about ply follow the direction of the statute by the same value of the Van Vleet Drug Company holding that, on a motion to quash the in- and placed them in the storehouse, where my dictment, its validity cannot be called in ques- drugs were. Later the Van Vleet Drug Compation on the ground that a member of the ny caused a writ of attachment to be issued against my husband, and the sheriff came to levy grand jury was not qualified to act. it upon the drugs in my storehouse. He failed Judgment affirmed. to levy the attachment, because the drugs were mine. In about two weeks he came back and levied the attachment upon all the drugs in the storehouse. Subsequently the drugs were sold under the attachment, and I became the pur

WEBB v. VAN VLEET-MANSFIELD DRUG chaser of them for the sum of $114.50."

CO. (No. 144.)

(Supreme Court of Arkansas. Oct. 4, 1915.) 1. FRAUDULENT CONVEYANCES 132 - PRESUMPTIONS CONTINUANCE OF SELLER'S POSSESSION.

Though a husband continued in possession after sale of a stock of drugs to his wife, it cannot be held presumptively fraudulent for that reason, where the drugs were in the wife's building, and she objected to the levy of an attachment thereupon by the husband's creditors.

[Ed. Note.-For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 407-424; Dec. Dig. mm 132.]

2. APPEAL AND ERROR 1062 HARMLESS ERROR.

REVIEW

In an action for damages for wrongful attachment, where it appeared that plaintiff, who claimed part of the goods attached and bought in the whole, made an extremely advantageous bargain, paying several times less for the whole of the goods than the part not claimed by her was worth, error in directing a verdict against plaintiff was harmless.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 4212-4218; Dec. Dig. 1062.]

This was all the testimony introduced, and upon motion of appellee the court instructed the jury to return a verdict in its favor. This was error. The question of whether or not the bill of sale by John T. Webb to appel

lant, his wife, was fraudulent, should have been submitted to the jury.

It is true the husband remained in possession of the goods after the execution of the bill of sale, but appellant testified that she had bought the goods from him. It might also be inferred from her testimony that she protested against the levying of the attachment upon her drugs. Under these circumstances the continued possession by the husband of the drugs after the alleged sale was not conclusively fraudulent, but the question of whether or not the sale of the drugs was fraudulent should have been left to the jury.

[2] It does not follow, however, that the judgment must be reversed for this error. It is the settled rule of this court to reverse judgments only for errors that are prejudicial

3. ATTACHMENT 365- WRONGFUL ATTACH- to the rights of appellants. Appellant tesMENT DAMAGES.

An attaching creditor cannot be held liable for wrongful acts of the sheriff not shown to

have been done at his direction.

[Ed. Note. For other cases, see Attachment, Cent. Dig. §§ 1328-1338; Dec. Dig. 365.]

tified that she purchased the whole stock of drugs at the attachment sale for $114.50. She also testified that the property owned by her was worth at least between $600 and $700, and that the portion owned by her hus

band was worth an equal sum. Only two] Action by the Leader Company against months elapsed between the levying of the the Little Rock Railway & Electric Company. attachment and the sale to the appellant From a decree dismissing the complaint, under it. By the sale she obtained title to plaintiff appeals. Reversed and remanded, the whole of the stock of goods. Thus she with directions. received back the drugs which she claimed were her own and the stock belonging to her husband which she said were equal in value to the portion of the stock claimed by her,

and this she stated to be worth at least calculation between $600 and $700. Therefore it is plain that she was not prejudiced by the action of the court in directing a verdict against her.

Comer & Clayton, of Little Rock, for appellant. Rose, Hemingway, Cantrell, Loughborough & Miles, of Little Rock, for appellee.

McCULLOCH, C. J. The plaintiff (appellant) is a domestic corporation engaged in the mercantile business in the city of Little Rock, and the defendant, also a domestic [3] Again she claims that the judgment corporation, is engaged in the business of should be reversed because she owned the furnishing electricity in said city for comstorehouse in which the drugs were situat-mercial and domestic uses. This is an aced, and that this was closed for a time of two months by reason of the levy of the attachment. This was done by the sheriff, and the record does not show that it was done by the direction of appellee. Therefore it is not responsible in damages to appellant on this account.

We find no prejudicial error in the record, and the judgment will be affirmed.

LEADER CO. v. LITTLE ROCK RY. & ELECTRIC CO. (No. 141.) (Supreme Court of Arkansas. Oct. 4, 1915.) 1. ASSIGNMENTS 19 EXECUTORY CONTRACTS-CONTRACTS OF PERSONAL NATURE.

A contract between a company engaged in furnishing electricity, its successors or assigns, and a consumer, its successors or assigns, whereby the company agreed to furnish to certain specified premises all electric service required by the consumer, and the consumer agreed to pay therefor, did not create obligations personal in such a sense as to render the contract nonassignable within the rule that when rights arising out of contracts are coupled with obligations to be performed by the contractor and involve such a relation of confidence that it must have been intended that the rights should be exercised and the obligations performed by him alone, the contract, including both his rights and obligations cannot be assigned without the consent of the other party, as there was nothing on either part calling for the exercise of personal service.

[Ed. Note. For other cases, see Assignments, Cent. Dig. §§ 28-31; Dec. Dig. 19.] 2. ASSIGNMENTS 18- EXECUTORY CONTRACTS-PROVISION AGAINST ASSIGNMENT. Such contract was not rendered nonassignable by a stipulation on the back thereof that it was not transferable, as the inclusion of the parties' successors or assigns in describing the contracting parties imposed on the company the obligation to furnish the electric current for use on the premises specified, not only to the consumer, but to its assigns, and there were therefore two repugnant provisions and the first would control, and the last would be rejected, especially as the stipulation that the agreement was nontransferable was not in the face of the contract but printed on the back.

[Ed. Note.-For other cases, see Assignments, Cent. Dig. §§ 25-27; Dec. Dig.

18.]

Appeal from Pulaski Chancery Court; Jno. E. Martineau, Chancellor.

tion instituted by the plaintiff to restrain the defendant from increasing the price of electricity furnished to plaintiff's place of business, and from shutting off the supply of current unless the plaintiff agrees to pay the increased rate. The chancellor sustained a demurrer to the complaint, and entered a decree dismissing the complaint for want of

equity, from which decree the plaintiff has prosecuted this appeal.

Plaintiff bases its right to relief in this action upon a contract entered into between its assignor, Froug, Smulian & Co. (a copartnership), and the Merchants' Lighting Company, the assignor of the defendant. Froug, Smulian & Co. were engaged in the mercantile business in the building in Little Rock now occupied by the plaintiff, and entered into a contract with the Merchants' Lighting Company, which was then a competitor of the defendant and furnished light on the terms specified in the contract. The portion of said contract which is material in this controversy reads as follows:

"Agreement entered into this 10th day of October, 1913, between the Merchants' Lighting under the laws of the state of Arkansas, its sucCompany, of Little Rock, Ark., a corporation cessors or assigns, hereinafter called the 'Company,' and Froug, Smulian & Co., successors or assigns, hereinafter called the 'Consumer.' "The Consumer requests the Company, and agreements of the Consumer hereinafter conthe Company agrees, in consideration of the tained, and in accordance with its regular terms and conditions indorsed hereon, and which are hereby made a part of this contract, to furnish only to the premises at 222-224 Main street all electric service for lighting, fans and heating required by the Consumer, the present capacity being 10,000 watts, equal to watts connected, for periods of two years from commencement of service hereunder, until Froug, Smulian & Co. shall, thirty (30) days before the expiration of any period, terminate this agreement by written notice, also have privilege of renewal same rate for three years.

"The Consumer shall pay the Company for such electric service, within ten (10) days from date of bills, at the rate computed on the following basis, viz."

The contract was on a printed form, leaving only space for the names of the consumer, and contained printed stipulations on the

back concluding with the following: "This purposes, and there is nothing on either part agreement is not transferable."

It is alleged in the complaint that Froug, Smulian & Co. sold and assigned to the plaintiff the stock of goods, fixtures, accounts and other choses of action pertaining to the said business in the city of Little Rock, including said contract with the Merchants' Lighting Company, and that said Merchants' Lighting Company, had sold and assigned to the defendant all of its property and rights of all kinds, including said contract with Froug, Smulian & Co., and that the defendant assumed the performance of all of the contracts of said Merchants' Lighting Company. It is also alleged in the complaint that the plaintiff had tendered the amount due to the defendant under said contract, but that the defendant had refused to comply with the contract, and was about to shut off the current unless the plaintiff agreed to pay a largely increased rate

which calls for the exercise of personal service. All that the consumer was required to do was to pay for the electricity. We conclude, therefore, that there is nothing in the nature of the contract which prevents it being assignable. Other courts have held similar contracts to be assignable. Voigt v. Murphy Heating Co., 164 Mich. 539, 129 N. W. 701; Minnetonka Oil Co. v. Cleveland Vitrified Brick Co., 27 Okl. 180, 111 Pac. 326; Jenkins v. Columbia Land & Improvement Co., 13 Wash. 502, 43 Pac. 328.

[2] Now, as to the next contention that the stipulation on the back of the contract rendered the contract nontransferable, it will be observed that the face of the contract describes the contracting party as Froug, Smulian & Co. and its "successors or assigns, hereinafter called the Consumer." The use of the word "assigns" necessarily implies the right to assign the contract. In Ft. Smith Light & Traction Co. v. Kelley, 94 Ark. 462, 127 S. W. 975, we quoted with ap

Counsel for defendant insist that the plaintiff has no cause of action under said contract, for two reasons: First, that the char-proval from Thornton on Oil and Gas, § 477, acter of the service contemplated in the contract is such that renders the contract nonassignable; and, second, that the contract is not assignable according to the express terms thereof. On the other hand, it is insisted by counsel for plaintiff that the contract establishes obligations which are not inconsistent with its assignability, and that the terms of the written instrument constituted a contract between the Merchants' Lighting Company and the successors and assigns of Froug, Smulian & Co., which was inconsistent with the subsequent stipulation that the contract should not be transferable, and that the latter stipulation was therefore void. Counsel have narrowed the controversy to those questions, and we do not undertake to decide anything else.

[1] We are of the opinion that the obligations created by the contract are not such as render it nonassignable. The obligations are not personal in the sense that it should be deemed to have been within the contemplation of the parties that there should be no assignment. The contract does not fall with in the rule invoked by counsel for defendant

that:

"When rights arising out of contracts are coupled with obligations to be performed by the contractor, and involve such a relation of personal confidence that it must have been intended that the rights should have been exercised and the obligations performed by him alone, the contract, including both his rights and ob ligations, cannot be assigned without the consent of the other party to the original contract." Delaware County v. Diebold Safe & Lock Co., 133 U. S. 473, 10 Sup. Ct. 399, 33 L. Ed. 674 Burck v. Taylor, 152 U. S. 634, 14 Sup. Ct. 696, 38 L. Ed. 578.

The contract is one to supply electricity to be used in a certain building, for business

and certain other authorities, wherein the rule was laid down that "a grant to the company or its assigns is sufficient to authorize an assignment without further consent" of the other party to the contract. The use of the word necessarily means an obligation to furnish the electric current for use in the building named in the contract, not only to the parties named, but to their assigns. That interpretation of the language puts it in conflict with the stipulation printed on the back of the contract to the effect that the contract should not be transferable, and the case falls within the well-established rule that where there are two repugnant provisions in a contract, the first will control and the last will be rejected. The fact that this stipulation is printed on the back of the contract, and not in the face of it, calls especially for the application of the above rule. Here the parties have, in the face of the contract itself, expressly stipulated for the furnishing of electricity to the parties named and their assigns, and it must be presumed that the contracting parties did not intend to defeat the obligation of that contract by a subsequent stipulation that there should be no assignment.

There was an answer filed, setting up matter which it is claimed amounted to an abandonment and a forfeiture of the contract by Froug, Smulian & Co. But we are not at liberty to look to the statements of the answer, for the reason that the decision below was based entirely upon a demurrer to the allegations of the complaint.

Reversed and remanded, with directions to overrule the demurrer, and for further proceedings.