[JUNE Henry & Co. v. Gibson & Helmer. court of Pulaski county. At the hearing, in the circuit court, the cause was submitted to the court, sitting as a jury, and it found for the appellees. A motion for a new trial was made on the following grounds: First. Because the verdict and finding of the judge, sitting as a jury, are contrary to the evidence. Second. Because the verdict and findings of the judge, sitting as a jury, are contrary to law. Third. Because the court refused to declare the law of the case, as asked for by the plaintiffs. Fourth. Because the court found the law of the case, as asked for by the defendants. The bill of ex The motion for a new trial was overruled. ceptions, in this case, sets out the evidence and the instructions asked by the appellants, but does not show that the appellants excepted to the refusal of the court to declare the law, as asked by the appellants. Nor is this the only defect. The declarations of law, asked by the appellants, are set out at length, but the declarations of law, asked by the defendants, are not set out in the bill of exceptions at all; nor does it appear that the appellants excepted to any declaration of law asked by the appellees. The bill of exceptions sets forth a declaration of law, made by the court; whether at the instance of the appellees or appellants, we are unable to determine; nor was there any exceptions made to the declaration made by the court. The judgment is affirmed. ORAL AND WRITTEN TESTIMONY-How made of record.-Neither oral or written testimony constitute any part of the record, unless it is made so by order of the court, by agreement of the parties, by demurrer, by oyer by bill of exceptions or by special verdict. Appeal from Pulaski Circuit Court. HION. JOHN WHYTOCK, Circuit Judge. * Rice & Benjamin, Gallagher, Newton & Hempstead, and Howard and R. S. Gantt, for appellant. Montgomery, Attorney General, for appellee. MCCLURE, C. J. The only difference between this case and that of the State v. Henry et al., is that the counsel for the appellants, and the attorney general, have filed an agreement whereby this court is granted permission to consider the record as containing the following facts: First. "That the appellant sold liquor in quantities less than one quart, in the city of Little Rock, in the county of l'ulaski, and State of Arkansas, and that he had not procured from the county court a license for the sale of the same." Second. "That said record may also be considered as containing the annexed certified copy of the order of the county court establishing said license, which was omitted from said transeript." This agreement relates solely to the evidence adduced at the trial, and is not an agreement to perfect the record, although it proposes to be such. Neither oral or written testimony constitute any part of the record, unless it is made so by order of the court, by agreement of the parties, by demurrer, by oyer, by bill of exceptions, or by special verdict." Lenox v. Pike, 2 Scott v. The State. [JUNE Ark. 214; Berry v. Singer, 10 Ark 491; Dillard v. Parker, 25 Ark. 507. This record contains the finding of the indictment, the indictment, the waiver of arraignment, a plea of not guilty, the waiver of a jury and a consent to submit the cause to the court, sitting as a jury. The record then continues by saying, "and the court, having heard the evidence adduced, and the argument of counsel, overrules the defendant's demurrer and assesses a fine of twenty dollars against said defendant. It is therefore considered," etc. To which ruling the defendant excepted and prayed an appeal to the Supreme Court. It appears, from the closing portion of the record, that a demurrer was overruled, but whether the demurrer related to the indictment, or to the evidence adduced at the trial, we have no means of ascertaining, as we are unable to find a copy of the demurrer in the transcript; nor does it appear that a demurrer was filed, save, as is incidentally recited in the finding of the court. If this demurrer was actually filed and it related to the evidence, it would at once perform the office of a bill of exceptions, if properly framed; but in its absence, we are unable to tell what its mission was, if it ever had one. A demurrer to evidence must be to the whole evidence; whether this agreement, filed by the attorneys of the appellant and the attorney general, contains all the evidence, we are not able to determine; nor does it so state. If we should consider this agreement as containing all the evidence, this judgment would have to be reversed, because it no where appears that the selling of the liquors without license, took place before the finding of the indictment. We are not at liberty to presume that the statement filed contains all the evidence,,where the effect would be to procure a reversal of the judgment. If we were to hear this cause upon an agreed statement of facts, or to try the case de novo, as seems to be the desire of counsel, grave questions might arise as to the validity of a judgment rendered, by this court, under such circumstances. We sit here to hear and determine causes of this character on appeal, or writ of error, TERM, 1871.] Henry, et al. v. The State. and such would not be the functions of this court, if we heard it upon an agreed statement of facts. For the reasons given in the case of Henry et al. v. The State, the judgment will be affirmed. HENRY, ET AL. v. THE STATE. COSTITUTIONAL LAW.-Chapter 169, of Gould's Digest, regulating taverns, groceries and dram shops, is not repealed by section seventeen, of article X, of the Constitution of the State-nor is it in conflict with section five of article X. WHAT ACTS CONTINUED IN FORCE.—All laws continued in force, by virtue of section sixteen, of article XV, of the Constitution, are as valid as though re-enacted by the General Assembly. POWER TO LICENSE-License not a tax, etc.-The Legislature may pass any law not inhibited by the Constitution, and a law requiring an amount or sum of money to be paid for a license to sell spirituous liquors, is not a tar in the sense used in section five, of article X, of the Constitution. Appeal from Pulaski Circuit Court. HON. JOHN WHYTOCK, Circuit Judge. Rice & Benjamin, Gallagher, Newton & Hempstead, Howard and R. S. Gantt, for appellant. Montgomery, Attorney General, for appellee. MCCLURE, C. J. It appears from the record that James A. Henry, John Kinkead and William S. Davis were indicted for keeping grocery without license. At the trial the accused waived a jury, and [JUNE Henry, et al. . The State. the cause was submitted to the court for trial. Plea, not guilty. The appellants were found guilty and a fine of twenty dollars imposed, whereupon the appellants excepted and prayed an appeal to this court. No exceptions were taken to the evidence, nor was there a motion for a new trial. The only point urged in this case, that is not urged in Scott v. The State, is that the appellants were inn-keepers, and not grocery keepers. In the absence of a bill of exceptions, it is impossible for us to determine, whether the evidence adduced at the trial showed that the appellants were grocery keepers or inn-keepers. We shall therefore presume that inasmuch as the court found these parties guilty of keeping a grocery without license, and the counsel not thinking enough of the point to save the proof upon it, by bill of exceptions, or otherwise, that there was proof to sustain the finding. The other points. argued in this case are similar to those urged in the case of Scott v. The State, and what may be said in this, will be equally applicable to that. It is urged that chapter 169, of Gould's Digest, which regulates taverns, groceries and dram-shops, is repealed by section seventeen, of article ten, of the Constitution of the State. The section alluded to reads as follows: "The General Assembly shall tax all privileges, pursuits and occupations, that are of no real use to society. All others shall be exempt, and the amount thus raised shall be paid into the treasury." How this section repeals chapter 169, of Gould's Digest, we are unable to determine. Before the adoption of the present Constitution, the Legislature imposed a license and a tax upon the privilege, pursuit or occupation of retailing spirituous liquors in less quantities than a quart. The only change made by reason of the adoption of section seventeen, of article X, is, that of an inhibition, as against the power of the Legislature. It is an universal rule that the Legislature may pass any law which the Constitution does not inhibit. Counsel for the appellants seem to be infatuated with the idea that, because chapter 169, of Gould's Digest, was passed before the adoption of the present Constitu |