(273 S.W.) administrator of the estate of Emily C. SECURITY BANK & TRUST CO. v. COS- Greathouse, against the estate of W. C. TEN. (No. 94.) Greathouse, deceased. The probate court al ministrator of the estate of W. C. Great (Supreme Court of Arkansas. July 6, 1925.) lowed the claim, and W. T. Costen, as ad1. Executors and administrators 214-Es-house, deceased, appealed to the circuit court, tate of deceased is chargeable with reasonable and necessary expenses of interment of body. Estate of a deceased is chargeable with the reasonable and necessary expenses of interment of the body, in keeping with the circumstances and standing of the deceased when in life. 2. Dead bodies 6-Duty to provide burial rests upon living. which rendered a judgment disallowing the claim, and the Security Bank & Trust Company appeals. Reversed, and remanded for new trial. Huddleston & Little, of Paragould, for appellant. Jeff Bratton, of Paragould, for appellee. McCULLOCH, C. J. Appellee's decedent, The duty to provide right of decent burial W. C. Greathouse, died in Greene county, rests upon the living. 3. Executors and administrators 214-Obligation of decedent's estate to pay burial expenses arises from duty of living to provide decent burial for dead. Ark., on March 12, 1923, leaving surviving his widow, Emily C, Greathouse, and several children, and leaving a last will and testament, by which he devised to his wife, Emily C., his lot and dwelling house in the city of Paragould "for and during her natural life, and at her death, if undisposed of, then to my heirs hereinafter named," and also be217-queathed to her "all the household and kitchen furniture, beds and bedding, cooking utensils, etc., now used by us in keeping house and the sum of $135 in money." Di The obligation of decedent's estate to pay burial expenses arises from the duty of the living to provide a decent burial for the dead. 4. Executors and administrators Charge against estate for money, advanced by one not mere volunteer, to pay burial expense inures to his or her benefit. If the person who incurs expense or ad-rections were made in the will for the payvances money to pay burial expenses is not a mere volunteer who acts officiously and with out interest in the estate of deceased, the ex pense incurred or money advanced for burial is a charge against the estate, which inures to the benefit of the person so incurring or advancing it. 5. Executors and administrators217-Widow's payment of funeral expense of her deceased husband held not discharge of estate obligation. Widow's payment of funeral expenses of her deceased husband did not discharge the obligation of the estate, but constituted a mere transfer of the obligation to her by way of subrogation. 6. Wills 837-Widow as devisee in husband's will held not bound to pay debt of estate out of her estate or estate so devised. Widow, as devisee in husband's will, held not bound to pay debt of estate out of her estate, or estate so devised, where the will did not cast such burden or condition upon her. 7. Wills 837-Widow held entitled to enjoy portion of estate devised and bequeathed to her by husband. Widow held entitled to enjoy portion of estate devised and bequeathed to her by her husband without assuming obligation to pay estate debts, where the will did not impose such obligation upon her. ment to a lodge of Odd Fellows the sum of $100 out of the proceeds of a life insurance policy, and the will contains a residuary clause devising and bequeathing the residue of the estate to the children and grandchildren of the testator. The will also contains a clause conferring power upon the devisee, Emily C. Greathouse, to mortgage the property devised, "if necessary to raise money for her reasonable support and maintenance during her natural life." No appointment of an executor was made in the will. The next day after the burial of deceased the widow, Emily C. Greathouse, paid the necessary funeral expenses, amounting to $210. She died on October 12, 1923, and appellant was appointed administrator of her estate. The claim was presented by appellant for the estate of his decedent against the estate of W. C. Greathouse, appellee having been appointed administrator of that estate, and the claim was allowed and classified by the probate court, but on appeal to the circuit court the trial of the issues resulted in a judgment in favor of appellee and against appellant for the allowance of the claim. [1-4] It goes without question that the estate of a decedent is chargeable for the reasonable and necessary expenses of interment Appeal from Circuit Court, Greene County; ing with the circumstances and standing of of the body-a ceremonial interment in keepW. W. Bandy, Judge. Proceedings for the allowance of a claim of the Security Bank & Trust Company, as the deceased when in life. The duty rests For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes duty springs a legal obligation of the decedent's estate to pay the expenses. Patterson v. Patterson, 59 N. Y. 574, 17 Am. Rep. 384. If the person who incurs the expense or advances the money to pay it is not a mere volunteer who acts officiously and without interest in the estate of the decedent, the charge against the estate inures to his or her benefit. This principle was announced by this court in the case of Brearly v. Norris, 23 Ark. 166, and the principle has been recognized by many decisions in other states. Jenks v. Terrell, Adm'r, 73 Ala. 238; France's Estate, 75 Pa. 220; Brown v. Forst, 95 Ind. 248; In re Skillman's Estate, 146 Iowa, 601, 125 N. W. 343, 140 Am. St. Rep. 295; Constantinides v. Walsh, 146 Mass. 281, 15 N. E. 631, 4 Am. St. Rep. 311. [5-7] Under the circumstances of this case it cannot be rightly said that the widow was a mere volunteer and acted officiously and without interest in paying the funeral expenses of her deceased husband. The payment was in settlement of the claim of the undertaker, which would have been a legal claim against the estate, and the act of the widow in making the payment was not a discharge of the obligation of the estate, but was a mere transfer of the obligation by way of subrogation to the widow. The last will and testament of the deceased husband did not cast upon the widow the burden of paying the debts of the estate, and she was therefore under no obligation to pay the debts out of her own estate or out of the interest which she took under the will of her husband, for no such condition or burden was imposed upon her by the terms of the will. Wisner v. Richardson, 132 Ark. 575, 202 S. W. 17. Nor did the mere fact that the widow was authorized in addition to her life estate in the real property devised to sell or mortgage the property in fee to raise the money for her maintenance create any obligation to pay the debts of the estate. She was entitled to enjoy the portion of the estate devised and bequeathed to her, without assuming the obligations to pay the debts, unless such obligation was imposed by the language of the will itself. The judgment of the circuit court was therefore erroneous, and the same is reversed and the cause remanded for a new trial. KEITH et al. v. FOWLER. (No. 95.) (Supreme Court of Arkansas. July 6, 1925.) 1. Sales 445 (4)-Court erred in not submitting issue to jury whether warranty in contract had been breached by seller's furnishing poor quality of hay. Where, in an action for breach of contract for sale of hay, there was conflicting evidence as to the quality of the hay, it was error not to submit to jury the issue of whether there had been a breach of express warranty as to quality by seller. 2. Sales 288 (2)-Purchaser could retain hay purchased, and sue for breach of warranty, or recoup damages when sued for price. Where there was an express warranty in contract for sale of hay, purchasers did not waive breach thereof by acceptance of hay, for they had the right to retain the hay and sue on their warranty or recoup the damages when sued for the price. 3. Sales 428-Purchasers had right to reject entire shipment of hay for breach of warranty of quality. Purchasers could, on discovery of poor quality of hay, reject entire shipment for breach of warranty of quality, and defend on that ground when sued for price. 4. Sales 428-Purchaser could accept part of hay and reject remainder, on discovery of its poor quality. Where purchasers of hay, on unloading car, found that hay inside of car was not of same quality as that near door, on discovering that fact they could reject the portion which was not according to standard, and, when sued for the price, could recoup for breach of warranty of quality. Appeal from Circuit Court, Columbia County; L. S. Britt, Judge. Action by T. A. Fowler against Jim Keith and another. From a judgment for plaintiff, defendants appeal. Reversed and remanded. Joe Joiner, of Magnolia, for appellants. Paul Crumpler, of Magnolia, for appellee. McCULLOCH, C. J. Appellants Jim Keith and H. T. Dickens are country merchants, doing business in Columbia county, at the village of Bussey, and the railroad shipping point is Taylor, a station on the line of the Louisiana & Arkansas Railroad Company. Appellee is engaged in the wholesale hay and grain business at Kansas City, Mo., and on February 28, 1923, sold and shipped to appellants, under written contract of sale, a carload of hay designated as choice green alfalfa. The contract specified "weights and grades guaranteed, inspection allowed, delivered at your station." The shipment was made by rail, and appellee drew on appellants through a bank at Taylor, Ark., with the bill of lading attached. Appellants opened the car, unloaded about one-third of it, and distributed it among their customers, who hauled it away from the car as fast as it was taken out. Appellants testified that when they opened the car they found that a portion of the hay next to the door was of the grade specified in the contract, and, on the assumption that the whole car was of the same grade, they proceeded to unload the (273 S.W.) car into the wagons of their customers, and did not discover the difference in quality of the hay until they had unloaded nearly a third of the car. The balance of the hay was found to be of a very low grade, and most of it entirely unfit for use. They refused to receive it, and appellee brought suit to recover $396.92, the price of the hay. Appellants pleaded the contract of guaranty, and breach thereof by furnishing worthless hay below the grade specified in the contract, and the issues were tried before a jury. Appellants testified themselves, as before stated, and proved by other witnesses that all of the hay was unfit for use except the portion packed near the door, and that, as soon as they discovered the quality of the hay, they refused to accept it, but that it was impracticable at that time to call back the portion which had been loaded into wagons and hauled away. One of the witnesses for appellants also testified that he examined the car in which the hay was shipped and found that it had a good roof, and that the hay could not have been damaged in transit. Appellée testified that the hay was of the grade specified in the contract, and was in good condition when it was shipped. Other witnesses introduced by appellee testified to the same effect, and the evidence was sufficient to warrant a finding either way as to the condition of the hay. Appellants requested instructions submitting the issue to the jury as to whether or not there was a breach of the contract of warranty as to the quality of the hay, but the court refused to submit this issue to the jury, and, on the contrary, gave a peremptory instruction in favor of appellee. [1] The contract of sale was in writing, and there is no dispute as to its terms. It plainly provides for a warranty by the seller of the quality of the hay. There was an issue of fact in the case as to whether or not there was a breach of the contract by reason of the hay being below the specified grade. The testimony was conflicting on that issue, and it should have been submitted to the jury under appropriate instructions. The court erred in taking that issue away from the jury by a peremptory instruction. In the case of Courtesy Flour Co. v. Westbrook, 146 Ark. 17, 225 S. W. 3, we said: "The law on the subject is that where chattels are purchased under express warranty as to quality, the purchaser may rescind on discovering the inferior quality of the article sold, but is not bound to do so, and, on the contrary, may retain the articles purchased and sue on the warranty or recoup the damages when sued for the price. In case, however, the contract is to deliver goods of a particular description or quality without express warranty, and the purchaser accepts them after inspection and discovery of the inferior quality, or after having had a fair opportunity to make such inspection, he waives the right to claim damages for defects or inferiority of the goods sold." [2-4] In this case, as we have already said, there was an express warranty; hence appellants did not waive the breach by acceptance of the hay, for they had the right to "retain the articles purchased and sue on the warranty or recoup the damages when sued for the price." They also had the right on discovery of the condition of the hay to reject the whole shipment and defend on that ground when sued for the price. Notwithstanding the acceptance of a portion of the hay which was of a quality in accordance with the stipulations of the contract, they had the right to reject the remainder as soon as the discovery was made that it was below the standard and was worthless. In either event, if, as appellants contend, the hay was below the standard specified in the contract and was worthless, they had a right to recoup their damages when sued for the price. For the error in giving the peremptory instruction, the judgment is reversed, and the cause is remanded for a new trial. MCLAUGHLIN et al. v. FORD, Mayor, et al. (No. 36.) (Supreme Court of Arkansas. June 8, 1925. Rehearing Denied July 6, 1925.) 1. Municipal corporations 124 (6)-As respects future transactions, amendment relating to salaries stands as though act had originally been enacted as amended. Acts Sp. Sess. 1923, p. 119, amending Acts 1913, p. 64, § 12, relating to salaries of city officers and employees, became part of amended act, and as respects future transactions stood as though act had been originally enacted in amended form. 2. Statutes 68, 77(1)-Distinction between "general statute" and "special statute" stated. Distinction between general and special statute is that "general statute" applies to all of a class, while "special statute" applies to one or two classes or a part of class only. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Statute.] 3. Statutes 93(4)-That there is only one city in class does not make statute relating to such class special. Under Const. 1874, art. 12, § 3, general law may be passed classifying cities according to population with respect to powers to be exercised and salaries of their officers, and fact that there is only one city of designated population within class does not make statute relating to cities in that class special. For other cases see same topic and KEY-NUMRER in all Key-Numbered Digests and Indexes 4. Statutes 93(10)-Statute fixing salaries | islature, at its special session in October, of city officers of cities of 25,000 or more 1923 (page 119) amended section 12 of the population held not special. act above referred to so as to increase the salary of the officers of cities of the first class which have a population of 25,000 people or more. Acts Sp. Sess. 1923, p. 119, amending Acts 1913, p. 64, § 12, relating to compensation of city officers and employees, is not special act because it applies to cities having population of 25,000 or more according to latest United States census, since it is prospective in its operation, and any city which at any time attains such population may come under its provisions. 5. Municipal corporations 124 (6)-Statute fixing salaries of mayor and commissioners of cities having .25,000 or more population repealed similar provisions in act amended thereby. Acts Sp. Sess. 1923, p. 119, fixing salaries of mayor and commissioners of cities of 25,000 or more population, repealed similar provisions in Acts 1913, pp. 63-65, § 12, amended thereby. 6. Municipal corporations 85 Resolution passed by board of commissioners, increasing salaries of city officers and employees, held valid. Increase in salaries to city officers and employees by resolution of board of commissioners was in legal effect an ordinance, within Acts Sp. Sess. Oct. 1923, p. 119, amending Acts 1913, p. 64, § 12, providing that officers or assistants shall receive salaries fixed by ordinance, whether ordinance designated them as officers or employees being immaterial, and ordinance was not void as being in conflict with any other act of General Assembly under Const. 1874, art. 12, § 4. 7. Municipal corporations 48 (2) General acts of Legislature do not apply to cities under commission form of government. The defendants filed a demurrer to the complaint which was sustained by the court. The plaintiffs were given leave to amend their complaint, but declined to do so, and expressly elected to stand upon their complaint. It was therefore decreed that the complaint of the plaintiffs be dismissed for want of equity. To reverse that decree, the plaintiffs have duly prosecuted an appeal to this court. T. S. Osborne, of Ft. Smith, for appellants. Sam R. Chew, G. L. Grant, A. M. Dobbs, and Geo. W. Dodd, all of Ft. Smith, for appellees. HART, J. (after stating the facts as above). The appeal in this case involves the construction to be given to sections 11 and 12 of the Acts of 1913, and section 2 of the Special Acts of 1923, above referred to. So much of section 11 as is necessary to a decision of the case reads as follows: "Sec. 11. The board of commissioners shall, at the first regular meeting after the election of its members, or as soon as practicable thereafter, appoint by a majority vote a city clerk and attorney or attorneys for the city, a city engineer, chief of police, city physician, chief of fire department and such other officers and assistants as shall be provided for by ordinance and necessary to the proper and efficient conduct of the affairs of the city, and shall prescribe the powers and duties of such officers and employees; may assign particular officers and employees to one or more of the departments, may require any officer or employee to perform Appeal from Sebastian Chancery Court; duties in two or more departments, and may J. V. Bourland, Chancellor. General acts of Legislature, under which cities and towns generally are governed, do not apply to cities which have adopted commission form of government. Injunction suit by Price McLaughlin and others against D. L. Ford, as Mayor of the city of Ft. Smith, and others. From a decree dismissing their complaint, plaintiffs appeal. Affirmed. Appellants, who are citizens and taxpayers of the city of Ft. Smith, Ark., brought this suit in equity against certain persons respectively named as mayor, commissioners, city attorney, city clerk, city treasurer, and chief of police of the city of Ft. Smith, to enjoin them from receiving an excess salary in these various offices, and to account for the excess salaries already received by them. According to the allegations of the complaint, the Legislature of 1913 provided for a commission form of government for cities of the first class. Acts of 1913, p. 48. The city of Ft. Smith complied with the terms of the act and organized under its provisions a commission form of government. The Leg make such other rules and regulations as may be necessary and proper for the efficient and economical conduct of the business of the city:" Section 12 reads as follows: "Sec. 12. The compensation of the mayor and commissioners for all services shall be as follows: "The mayor shall receive an annual salary of twenty-four hundred ($2,400.00) dollars, and each commissioner an annual salary of two thousand ($2,000.00) dollars, until otherwise provided by law; such salaries shall be payable in equal monthly installments, and no salaries of any such officers shall ever be increased or diminished during the time for which he is elected, or after the primary elections for their nominations have been held. Every other officer or assistant shall receive such salary or compensation as shall by ordinance be provided, payable in equal monthly installments, to be fixed by the board, and shall be payable monthly, or at such periods as the board shall determine. Until fixed by the board the salaries of all other officers and employees in force pri (273 S.W.) or to the first primary election shall continue." | proved October 10, 1923, became a part of Acts of Arkansas, 1913, pp. 63-65. The amendatory act, which was approved October 10, 1923, reads as follows: "Sec. 12. The compensation of the mayor and commissioners for all services shall be as fol lows: "The mayor shall receive an annual salary of twenty-four hundred dollars ($2,400.00), and each commissioner an annual salary of two thousand dollars ($2,000.00), until otherwise provided by law; such salaries shall be payable in equal monthly installments; provided, that in cities which have a population of 25,000 or more according to the latest census taken by authority of the United States government the mayor shall receive an annual salary of $3,000.00, and each commissioner shall receive an annual salary of $2,700.00, payable monthly as aforesaid. Every other officer or assistant shall receive such salary or compensation as shall by ordinance be provided, payable in equal monthly installments, or at such periods as the board shall determine. Until fixed by the board, the salaries of all other officers and employees in force prior to the first primary election shall continue." Acts of Arkansas, Special Session, October, 1923, p. 119. The record shows that the defendants were respectively mayor, commissioners, city attorney, city clerk, city treasurer, and chief of police of the city of Ft. Smith, when the last United States census was taken, and it was ascertained by that census that the city had a population of more than 25,000 people. Since that time they have received the increase of salary provided by the amendatory act. The purpose of this lawsuit on the part of the taxpayers is to prevent them from receiving said increase of salary in the future and to compel them to account for that which has already been received by them. the act of 1913, and is a general act. [1] In this contention it may be stated that the amendatory provision of the special session of 1923, from and after its passage, became a part of the act of 1913, and, in its relation to the sections of that act affected by it, stood, with reference to future transactions, as though the act had originally been enacted in the amended form. Mondschein v. State, 55 Ark. 389, 18 S. W. 383, and Abney v. Warren, 143 Ark. 572, 219 S. W. 748. [2] Therefore the question is presented whether the provisions of the original act as it stands after the amendatory section is introduced is a general or special act. The difference between a general and special statute is that a general law applies to all of a class, while a special statute applies to one or two or a part of a class only. L. R. & F. S. Ry. Co. v. Hanniford, 49 Ark. 291, 5 S. W. 294, and Little Rock v. North Little Rock, 72 Ark. 195, 79 S. W. 785. In the case last cited the court said to make a law general it is not necessary that it should operate upon all cities and towns in the state; but that it is sufficient if it applies to all towns and cities coming within the designated class. The court recognized, however, that the form of the statute does not control, and that a statute in form of a general law would be a special act if it could only apply to one city or town in the state. These general principles of law are in accord with the general rule as announced in the courts of last resort of the various states. The validity of the acts in which counties and cities have been classified according to population, resting on substantial differences in situation and needs, has been generally recognized. [3] One of the reasons for sustaining a . classification on the basis of population is that those having a small population may ultimately have one much larger, and on that account have need for more officers, and also may be required to pay larger salaries in order to secure more efficient service. The amendatory act under which they claim the increase in salary was approved October 10, 1923, which was less than 30 days from the 17th day of September, 1923, which was the date on which the Governor issued his proclamation for the special session. Hence they claim that the act is void under the rules of law announced in Booe v. Road Improvement District No. 4 of Prairie | certain designated population or more, beCounty, 141 Ark. 140, 216 S. W. 500. To say that a general law cannot be passed to govern and regulate cities having a cause only one city of that class exists, is In that case it was held that the require- to hold that no law can be passed to provide Iment of the Constitution of at least 30 days' for future wants or necessities. Cities and notice to be given of the intention to apply counties are recognized in our Constitution for a local bill is mandatory, and, that, as governmental subdivisions, and each one where the record shows that 30 days did not has its appropriate part in the administraelapse from the date of the issuance of the tion of the local government. Municipal corGovernor's proclamation for a special ses-porations can exercise only the powers which sion until the date of the passage of the the Legislature confers, and these may be bill, such special bill will be held to be uncon- enlarged or abridged, or entirely withdrawn stitutional because the notice required by the at its pleasure. Constitution could not have been given. On the other hand, the defendants seek to uphold the decree of the chancery court on the ground that the amendatory act, ap If the power to classify and regulate the subject of cities generally be admitted, the question of local legislation is at an end. The reason is that, although it may happen |