(273 S.W.) It seems to me that the interpretation now | the trial. The court proceeded to sound the placed upon the language of the amendment docket to ascertain what cases were ready thwarts the expressed will of the people who framed the amendment and adopted it. The decision of the majority is, I must saythough I say it with great respect-founded upon the doctrine of necessity; that is to say, what appears to them to be the necessities of the situation. It is another verification of the maxim that, "necessity knows no law." WILSON V. ANDERSON. (No. 72.) (Supreme Court of Arkansas. June 22, 1925.) Justices of the peace 166 (6)-Dismissal of case appealed from justice court set aside on facts shown. On appeal from judgment of justice of the peace, where, at time of trial, defendant had not been informed by his attorney that he would not represent him, and, immediately on dismissal for want of prosecution, he employed another attorney and moved for reinstatement, the dismissal should have been set aside. Appeal from Circuit Court, Ouachita County; L. S. Britt, Judge. Action by Roxie Anderson against A. A. Wilson. From judgment for plaintiff in court of justice of the peace, defendant ap pealed to circuit court. Appeal was dismissed for want of prosecution, and defendant appeals. Reversed and remanded, with directions. for trial, and when the instant case was "That defendant is old and infirm and knows nothing whatever about court procedure, and when the case was being called he did not know it was for dismissal and was not informed by the court nor any one for the court that his case was being called up for the purpose of determining whether it would be ready for trial, and that if he failed to announce ready for trial the cause would be dismissed." This motion was heard the day it was Saxon & Davidson, of Camden, for appel- filed, and the court entered the following lant. SMITH, J. This suit originated in the court of a justice of the peace, and the appellant here was the defendant there. A judgment was rendered by the justice of the peace for the plaintiff, from which the defendant appealed to the circuit court. This appeal appears to have been perfected on September 8, 1923, and the cause was placed on the docket of the circuit court. On the 24th of April, 1924, the following order was made in the circuit court: "Now on this day this cause being reached on the court's docket, and same being called for trial, said appeal is by the court dismissed for want of prosecution." On the day on which this order was made, a motion was filed to reinstate, which contained the following allegations: There were recited facts which, if true, constituted a highly meritorious defense to the plaintiff's cause of action. It was recited in this motion that the cause was set for trial Thursday, April 24, 1924, and that defendant was present for the trial. He had employed a regularly practicing attorney to represent him at order: "Now on this day comes the parties herein by their respective attorneys, and the motion filed in this cause asking that the order of dismissal had in this cause be set aside and said cause be reinstated, and said motion coming on to be heard and same being submitted to the court, the court after being well and sufficiently advised in the premises, and after hearing argument of counsel for both plaintiff and defendant, is of the opinion that said motion to reinstate should be and same is by the court overruled and denied." This appeal is from the order of the court refusing to reinstate the cause for trial, and as we understand the judgment from which we have copied, the matter was heard on the motion. No testimony appears to have been offered on the hearing of the motion, and it was apparently disposed of as if it had been heard on demurrer to the motion. When thus considered, it appears to us that a prima facie showing was made that appellant did not fail to prosecute his appeal with diligence. He was present ready for trial, except only that his attorney had retired from practice without advising his client of that fact, and within half an hour after be For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes ing so advised appellant had employed other Suit by John Thompson against T. G. Alcounsel and had announced ready for trial. len. Decree for plaintiff, and defendant apUpon this showing we think there was no peals. Reversed and remanded, with direclack of diligence on the part of appellant in tions. prosecuting his appeal from the judgment of the justice of the peace, and the order dismissing the cause for want of prosecution should have been set aside and a trial of the cause on its merits ordered. For the error indicated, the judgment will be reversed and the cause remanded, with directions to set aside the order of dismissal and to redocket the cause for trial on its merits. ALLEN v. THOMPSON. (No. 91.) (Supreme Court of Arkansas. June 29, 1925.) 1. Principal and agent 171(5)-Grantee of fourth interest in mineral royalties held not entitled to specific performance of prior oral agreement to convey half interest. Purchaser accepting and retaining deed of fourth interest in mineral royalties, instead of demanding return of money and offering to reconvey because of failure to convey half interest as orally agreed, ratified his agent's action in closing deal on basis of fourth interest and could not sue for specific performance of verbal contract. 2. Contracts 245 (1)—Party cannot insist on contract in conformity with original understanding, after closing different contract on terms known and understood. One cannot close contract on terms known and understood by both parties, and afterwards insist on different contract in conformity with original understanding; parties having right to change or modify contracts by mutual agree ment before consummation thereof. 3. Mines and minerals 79(1)-Check held not contract, but merely evidence of payment of sum named for royalties expressed in deeds. Check for royalties, with notation in left hand corner, "one-half royalty on" two described tracts, held not written contract for half royalty in both, but merely evidence of payment of sum named for half royalty in one and fourth royalty in other, as expressed in deeds. 4. Frauds, statute of 118(1)-Oral contract for sale of mineral royalties held within statute; check and two deeds in consummation of contract not constituting written contract. Oral contract for sale of half interest in mineral royalties in certain tracts of land held nonenforceable as within statute of frauds; check and two deeds, executed and delivered in consummation of contract, not constituting written executory contract. Appellant pro se. Henry Stevens and E. A. Upton, both of Magnolia, for appellee. HUMPHREYS, J. This suit was brought by appellee against appellant in the chancery court of Columbia county, to enforce the specific performance of an alleged contract for the sale and purchase of an undivided onehalf interest in the royalty of all the oil, gas, and other minerals on and under a certain 70-acre tract of land in said county, by reforming one of the deeds of conveyance. The land was conveyed by appellant to appellee in two deeds-one conveying an undivided one-half interest in said royalty upon and under 60 acres of said tract, and the other an undivided one-fourth interest in said royalty upon and under 10 acres of said tract. was alleged that through mutual mistake an undivided one-fourth interest of the oil, gas, and other mineral, instead of an undivided one-half interest, in the 10-acre tract was conveyed by appellant to appellee. It Appellant filed an answer denying that a mistake had been made in the quantity of royalty conveyed in the 10-acre tract, and, by way of further defense, alleged that the contract for the sale and purchase of said royalty was verbal and void as being within the statute of frauds. [1] The cause was submitted to the court upon the pleadings and testimony, which resulted in a finding that by mutual mistake the deed to the 10-acre tract conveyed an undivided one-fourth interest in said royalties instead of an undivided one-half interest therein, and decreed a reformation of the deed so as to convey a one-half interest in said royalties. The court further found that one-half of the royalty from the oil produced belonged to appellee, and decreed that he have and recover one-half of the royalty of the oil heretofore produced, from which findings and decree, an appeal has been duly prosecuted to this court. The testimony is conflicting as to whether appellee contracted with appellant to purchase an undivided onehalf interest in the oil and mineral royalties in the 10-acre tract, but there is no conflict relative to the quantity of royalty entering into the deal as finally agreed upon and consummated. The undisputed evidence reflects that appellee selected Harnwell & Young, a firm of attorneys at Stephens, as his agent, to purchase appellant's royalty rights in the 70-acre tract, and placed a check in their hands for $2,200 with which to pay appellant for said royalties if the abstract showed good Appeal from Columbia Chancery Court; J. and sufficient title in him. The check was Y. Stevens, Chancellor. written by Harnwell, and contained the fol (273 S.W.) lowing notation in the left-hand corner, to summation of the contract, and were not wit: themselves in any sense a written executory contract. "One-half royalty on S. E. 4 S. W. 4, and S. W. 4 N. W. 4 S. E. 4 and W. 2 S. W. 14 S. E. 4, all in Sec. 23, Twp. 15 S., Rge. 20W." On account of the error indicated, the decree is reversed, and the cause is remanded, with directions to dismiss appellee's bill for the want of equity. SPECIAL SCHOOL DIST. NO. 5 et al. (No. 71.) (Supreme Court of Arkansas. June 22, 1925. Rehearing Denied July 13, 1925.) 1. Courts 107-Language used in any decision must be construed as a whole. Language used in any decision must be construed as a whole, and read in light of issues presented. 2. Schools and school districts 10—Statute, directing credit of funds arising from sale of sixteenth section school lands to permanent school funds of the state, held not unconstitutional. [2] On examination of the abstract, it was discovered that appellant only owned an undivided one-fourth interest in the royalties upon and under the 10-acre tract. After mak- SLOAN, State Treasurer, v. BLYTHEVILLE ing this discovery, Harnwell prepared two deeds-one for an undivided one-half interest in the royalties in the 60-acre tract, and the other an undivided one-fourth interest in the royalties in the 10-acre tract. These deeds were executed by appellant, and delivered to Harnwell in exchange for the check which he indorsed and collected. Harnwell placed the deeds of record, and sent them to appellee, explaining that he had closed the deal upon the basis of $2,200 for an undivided onehalf interest in the royalties in the 60-acre tract, and an undivided one-fourth interest in the royalties in the 10-acre tract. Appellee accepted and retained the deeds, and by so doing, ratified the action of his agent. Unless he intended to abide by the sale and purchase of the royalties made by his agent, he should have repudiated the transaction by demanding a return of his money and offering to reconvey the royalties in said lands to appellant. It is true that he requested his agent several times to get the other undivided one-fourth interest in the 10-acre tract from appellant, claiming that he was entitled to it under the original agreement, but at that time he knew his agent had closed the deal with appellant upon the basis of $2,200 for an undivided one-half interest in the royalties in the 60-acre tract, and an undivided one-fourth interest in the royalties in the 10acre tract. One cannot close a contract upon terms known and understood by both parties, and afterwards insist upon a different contract simply because same was in conformity with the original understanding between the parties thereto. Parties have a right to change or modify their contracts by mutual agreement before consummation of same. Acts 1899, No. 159, § 1 (Crawford & Moses' Dig. § 9285) and Acts 1919, No. 344, § 5 (Crawford & Moses' Dig. § 9108), directing credit of funds arising from sale of sixteenth section school lands to permanent school funds of the state, held not unconstitutional; title to such lands being vested absolutely in the state, and Legislature having exclusive control over the fund; Const. art. 14, only requiring that funds shall never be used for any other than a school purpose, and consent of Congress by Act Cong. March 8, 1898, was unnecessary to authorize that such funds be credited to permanent school fund rather than to special school districts. Smith, J., dissenting. Appeal from Pulaski Chancery Court; Jno. E. Martineau, Chancellor. Suit by the Blytheville Special School District No. 5 and others against Sam Sloan, Decree for plaintiffs, and State Treasurer. defendant appeals. Reversed and remanded, with directions. Appellees brought this suit in equity against appellant, to restrain him as treas[3, 4] Appellee attempts to uphold the de- urer of the state of Arkansas from placing cree of the trial court upon the theory that certain money derived from the sale of sixthe only contract which could be consummat- teenth section school lands to the credit of ed between appellee's agent and appellant the permanent school funds of the state of was expressed in the check. The check was Arkansas. The answer admitted the alleganot in substance or form a contract between tions of the complaint that certain sixteenth the parties. It did not purport to be a con- section school lands in Mississippi county, tract. It was merely an evidence of the pay- Ark., were sold by order of the county court, ment of the sum named therein for the roy- and the proceeds thereof are now in the alties expressed in the two deeds. The court hands of the sheriff of Mississippi county, erred in treating the check as a written con- for payment into the treasury of the state tract between the parties. The contract, if of Arkansas, and that the state treasurer deany, between the parties was oral and non- clines to receive said funds as state treasurenforceable as being within the statute of er for any purpose other than as a credit frauds. The check and the two deeds were to the permanent school funds as provided instruments executed and delivered in con- by section 1 of Act 159, approved May 8, 1899, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes and appearing in Crawford & Moses' Digest as section 9285, and section 5 of Act 344, approved March 22, 1919, and appearing in Crawford & Moses' Digest as section 9108. The appellant denies that the act of Congress, approved March 8, 1898 (30 Stat. 262), and the acts of the Legislature, above referred to, are unconstitutional. In this connection it may be stated that they authorized and directed the credit of funds arising from the sale of sixteenth section school lands to the permanent school funds of the state. Appellees filed a demurrer to the answer of the appellant, which was sustained by the chancery court. Appellant declined to plead further, and elected to stand upon his answer. It was therefore decreed that appellant be enjoined from crediting to the permanent school funds of the state the proceeds of the sale of the sixteenth section school lands in question, and appellant was ordered and directed to credit said funds to the inhabitants of the special school districts in which the lands sold were situated. The case is here on appeal. H. W. Applegate, Atty. Gen., Brooks Hays, Asst. Atty. Gen., and Utley & Hammock, of Little Rock, for appellant. Little, Buck & Lasley, of Blytheville, for appellees. HART, J. (after stating the facts as above). The sole question raised by the appeal is whether the funds derived from the sale of sixteenth section school lands under the statute should be credited to the inhabitants of the school district in which the land is situated, as provided by the earlier act. The contention of appellees, who were the plaintiffs in the court below, is that the statute providing that the proceeds arising from the sale of sixteenth section lands shall be a part of the permanent school funds of the state is invalid, because inconsistent with the act of Congress granting the school lands to the state of Arkansas, and the act of the state accepting the grant. In short, it is the contention of appellees that this compact created a trust in favor of the inhabitants of the school district in which the sixteenth section lands are situated, which could not be abrogated by an act of the Legislature, or by an act of Congress. Since Cooper v. Roberts, 18 How. 173, 15 L. Ed. 338, and Mayers v. Byrne, 19 Ark. 308, contain a complete history of sixteenth section school lands, their legal status, and the beneficent motive that caused said lands to be devoted to educational purposes, we need not repeat these matters here. While the precise question raised by this appeal was not decided, the effect of those cases is to hold that, under the compact between the United States and the state of Arkansas, there was a grant to the state directly' of power, and that no application to Congress was necessary to direct the appropriation of their proceeds. It will be noted that under the original compact the section numbered 16 in every township was granted to the state for the use of the inhabitants of such township for the use of schools. It is true that the Legislature memorialized Congress to allow it to change the funds to the credit of the general school funds of the state, and that such permission was given by the act of Congress of March 8, 1898, which resulted in the passage of the act of the Legislature approved May 8, 1899. As stated by the Supreme Court of the United States in the case last cited, the consent of Congress was not necessary, and the application for it was but evidence of the strong desire of the Legislature to act in good faith, and to keep within the pale of the law. In Mayers v. Byrne, 19 Ark. 308, the sale of a sixteenth section was sought to be set aside on the ground of fraud and illegality in the sale, and the court sustained the sale under an act of the Legislature confirming it. Upon appeal, it was held that the act of the General Assembly confirming the sale was valid and effectual, and that the decree of the court below, dismissing the bill for want of equity, must be affirmed. The court held in the state under the compact between the that the title to the land vested absolutely United States and the state. In discussing the question, Chief Justice English said: "The state accepted the grant, however, charged with the trust, that the land was to be appropriated to the use of the inhabitants of the township in which it was situated, for the use of schools. The state, as a sovereign, not as an individual, took upon herself a trust, which she was to execute, and could only execute, by such municipal legislation as her General Assembly might deem necessary and expedient to carry into practical effect the obpriated to the support of schools for the benejects of the grant. The land was to be approfit of the inhabitants of the township in which it was situated, but whether this was to be effected by leasing the land, or selling it, and putting the proceeds upon interest, was not prescribed by the act of Congress making the grant, and of course was left to the discretion and good faith of the state." Again, in Widner v. State, 49 Ark. 172, 4 S. W. 657, it was held that the legal title to said lands is in the state, and that it is held in trust for the support of schools for the inhabitants of the township in which it is situated. There the right of the state to sue a trespasser on school lands for the injury complained of was upheld. In State v. Burk, 63 Ark. 56, 37 S. W. 406, it was held that the statute of limitations could not be pleaded against an action by the state to foreclose a mortgage given (273 S. W.) sixteenth section school funds and held by the state in trust for the use of schools. In discussing the question, the court said that it was held in Mayers v. Byrne, 19 Ark. 308, that the effect of the act of Congress, and the acceptance of the proposition therein contained, was to vest the title to the sixteenth sections therein granted absolutely in the state, and that the state as a sovereign and not as an individual took upon herself a trust which she could only execute by such legislation as her Legislature might enact, to carry into practical effect the object of the grant. In discussing the question, the court said: While the question raised by this appeal was expressly reserved from decision, it is manifest, from the reasoning of the court and the cases cited, that the court held that the legal title to said lands was intended to be vested in the state, and was so vested by the acceptance of the conditions by the Constitutional Convention under which the state was admitted into the Union. "While the state has always recognized the inhabitants of each township as the beneficiaries of the grant of the sixteenth sections in their township, it has never abandoned the trust it assumed, but has always made and treated the individuals or corporations placed in control of the same as component parts of a general system of education, and at the same time as instruments in its hands for the per formance of that trust." Again, in School District No. 36 v. Gladish, 111 Ark. 329, 163 S. W. 1194, the court expressly recognized that, while the effect of our earlier decisions was to hold that the state held the legal title to the sixteenth sections in trust for the support of schools for the inhabitants of the township in which the land was situated, it was for the Legislature to determine how and by whom these lands shall be managed and sold, and how the trust should be executed. In Special School Dist. No. 5 v. State, 139 Ark. 263, 213 S. W. 961, the court again quoted with approval from Mayers v. Byrne, 19 Ark. 308, to the effect that the state as a sovereign, and not as an individual, took upon herself a trust which she was to execute, and could only execute by such legislation as her General Assembly might deem necessary and expedient to carry into practical effect the objects of the grant. It was there held that the funds derived from the sale of sixteenth section school lands could not be reinvested in a building and equipment to be used for high school purposes. In Brooks v. Wilson, 165 Ark. 477, 265 S. W. 53, it was held that, while the trust created by the compact between the United States and this state that sixteenth section lands should be used for school purposes is a sacred obligation imposed on the good faith of the state, the obligation is honorary, and that the legal title to such lands, being vested in the state, its power over the same is plenary and exclusive. In that case an inhabitant of the school district brought suit against the sheriff to enjoin him from issuing a certificate of purchase of sixteenth section school lands situated within the limits of said school district. The chancellor dismissed the complaint for want of equity, and the decree was affirmed. [1, 2] The language used in any decision must be construed as a whole and read in the light of the issues presented. It is manifest from all these decisions that the trust reposed by the United States is in the state of Arkansas; that it is in the nature of a personal trust in the public faith of the state, and not a property trust fastened by the terms of the grant upon the land itself. The effect of all our decisions is that the grant by Congress was to the state directly of these lands, without any limitation of its power, and that no application to Congress was necessary to direct the appropriation of their proceeds. This holding is in conformity with the rule adopted by the Supreme Court of the United States. In discussing a similar compact between the United States and the state of Michigan, in Cooper v. Roberts, 18 How. 173, 15 L. Ed. 338, the court said: "The trusts created by these compacts relate to a subject certainly of universal interest, but of municipal concern, over which the power of the state is plenary and exclusive. In the present instance, the grant is to the state directly, without limitation of its power, though there is a sacred obligation imposed on its public faith. We think it was competent to Michigan to sell the school reservations without the consent of Congress." Again, in the State of Alabama v. Schmidt, 232 U. S. 168, 34 S. Ct. 301, 58 L. Ed. 555, the court held that the act under which Alabama became a state vested the legal title of section 16 of every township in the state absolutely, although the statute declared that it was for the use of schools. It was held further that, while the trust created by a compact between the states and the United States that section 16 be used for school purposes is a sacred obligation imposed on the good faith of the state, the obligation is honorary and the power of the state, where the legal title has been invested in it, is plenary and exclusive. In King County, Washington, v. Seattle School District No. 1, 263 U. S. 361, 44 S. Ct. 127, 68 L. Ed. 339, the court had under consideration an act of Congress directing that a certain per cent. of all money from each forest reserve shall be paid to the state in which the reserve is situated, to be expended, as the state Legislature may prescribe, for the benefit of the public schools and public roads of the county or counties in which the forest reserve is situated, and held that |