ARKANSAS SUPREME COURT.

STATE of Arkansas, ex rel. E. B. KINS- | district." On the same day he received his

commission from the governor, and qualified as the law provides, and entered upon the discharge of the duties of the office. The state, through her attorney-general, filed an information with the clerk of this court, and The re

applied for a writ of quo warranto. cir-spondent waived the writ, entered his appearance, and filed his response setting up his authority to hold the office by virtue of the act above recited, and his appointment and commission by the governor. The state demurs to the response, and the question arises on the demurrer.

State, 38 Ark. 564, 42 Am. Rep. 3; Davis v. | avoid an act of the legislature is never justiGaines, 48 Ark. 385; Little Rock v. Little fied unless it is clear, beyond rational conRock Board of Improvements, 42 Ark. 161; troversy, that it has passed the bounds set by State v. Nichols, 26 Ark. 74, 7 Am. Rep. 600; the fundamental law. Com. v. McCloskey, 2 State v. Scott, 9 Ark. 287; State v. Crow, 20 Rawle, 374; Weister v. Hade, 52 Pa. 474; Ark. 212; Neal v. Shinn, 49 Ark. 227; Vance People v. New York Cent. R. Co. 24 N. Y. v. Austell, 45 Ark. 400; Saunders v. Erwin, 49 504; People v. Orange County Suprs. 27 Barb. Ark. 376; Scales v. State, 47 Ark. 481, 58 Am. | 575; Cochran v. Van Surlay, 20 Wend. 365, Rep. 768; State v. Sorrells, 15 Ark. 664; Walker 32 Am. Dec. 570, and other cases cited in v. State, 35 Ark. 390; Danley v._ Whiteley, Cooley, Const. Lim. 204, 205, 216, 217; Car14 Ark. 687; St. Louis, 1. M. & S. Railway v. son v. St. Francis Levee Dist. 59 Ark. 513. State, 47 Ark. 323; Pulaski County Board of Now, the adjective a, commonly called Equalization Cases, 49 Ark. 519; Williamson the "indefinite article," and so called, too, v. Mimms, Id. 350. because it does not define any particular per

The legislature may do anything not forbidson or thing, is entirely too indefinite, in the den by the language of the constitution or by necessary implication from that language. State v. Fairchild, 15 Ark. 623; Lytle v. Half, 75 Tex. 129; Combs v. State, 26 Ind. 98; State v. Womack, 4 Wash. 19; Bone v. State, 86 Ga. 108.

Wood, J., delivered the opinion of the

ourt:

connection used, to define or limit the number of judges which the legislative wisdom may provide for the judicial circuits of the state. And it is perfectly obvious that its office and meaning was well understood by the framers of our constitution, for nowhere in that instrument do we find it used as a numerical limitation. It is insisted that if "a" does not mean "one, " and "but one, The state contends that the act is in conflict in the section quoted, then the way is open with section 13 of article 7 of the Constitu- for a latitudinarian construction in the varition, which is as follows: "The state shall ous other sections where it occurs; and that be divided into convenient circuits, each cir- the number of governors, attorneys-general, cuit to be made up of contiguous counties, secretaries of state, auditors, general assem for each of which circuits a judge shall be blies, etc., we are to have depends only upon elected, who, during his continuance in office legislative caprice. Let us see. Section 1, shall reside in and be a conservator of the article 6, of the Constitution provides: “The peace within the circuit for which he shall executive department of this state shall conhave been elected." It is contended that the sist of a governor, secretary of state, treasurer word or letter "a" before the word "judge" of state, auditor of state, and attorney-genin the above section is a limitation upon the eral." No one would contend that there cou d power of the legislature to provide for more be more than one of each of these functionthan one judge in a judicial circuit. We aries, but the limitation is not found in the must keep to the front certain familiar but use of the letter "a." It is in the name of unvarying rules when we come to interpret the office and officer created. The idea of the provisions of any section of a constitu- two governors, secretaries of state, treasurers, tion. (1) Unambiguous words need no in- etc., is unknown in the history of the forma terpretation. (2) Where construction is nec- tion of state governments in this republic. essary, words must be given their obvious and It would be utterly incompatible with the natural meaning. (3) The words or provis- duties of these officers to have a divided deions under consideration must be construed partment, and a head for each. Moreover, with reference to every other provision, so other sections may be looked to as defining as to preserve harmony in the whole instru- the number as to the executive. For inment. (4) The intent of the framers, gath-stance, section 2 provides: "The supreme ered from both the letter and spirit of the in- executive power of this state shall be vested strument, is the law. Potter's Dwarr. Stat. in a chief magistrate who shall be styled 'the 203, note 20; Sedgw. Stat. & Const. L. 195, Governor of the State of Arkansas.'" See 413; Beavers v. State, 60 Ark. 124; State also section 6. There can be but one chief v. Scott, 9 Ark. 271; Hawkins v. Filkins, magistrate, one commander in chief. Take 24 Ark. 288. Then, when we come to pass the legislative department. Section 1, artiupon the constitutionality of an act of the cle 5, is as follows: "The legislative power legislature, we must remember that a state of this state shall be vested in a general asconstitution is not a grant of enumerated sembly which shall consist of the sena and powers. Its object is to outline the depart-house of representatives." Section 18: “ Each ments of government, and apportion its vari-house, at the beginning of every regular sesous powers among them. Having vested the sion of the general assembly and whenever lawmaking power in the legislature, it pos- a vacancy may occur shall elect from its sesses that power in an absolute and unlimited degree, unless the restriction is found in the constitution itself. Cooley, Const. Lim. 200, 201, 206. Hence we always look to sec, not whether the power is given, but whether, in express terms or by necessary implication, it is forbidden. Cooley, Const. Lim. 204, 206; Neal v. Shinn, 49 Ark. 227; Scales v. State, 47 Ark. 481, 58 Am. Rep. 768; Sill v. Corning, 15 N. Y. 297; Sears v. Cottrell, 5 Mich. 251. Judicial interposition to

members a presiding officer, to be styled respectively the president of the senate and the speaker of the house of representatives." Reference is made in the brief of counsel to these sections, and it is urged that unless “a” is a limitation to one, and but one, in section 13 of article 7, there is nothing to inhibit more than one general assembly, one president of the senate, and one speaker of the house. But again it is patent that the limitation to one general assembly is not in

66

the use of the letter "a," but is referable to | tice? If so, which one? In the same section the principle that there can be but one su- in which 'a judge" occurs we find, "He preme legislative power in a state. That shall be 'a' conservator of the peace within Sovereign power being delegated by the con- the circuit." Does "a conservator" mean stitution to a general assembly, it cannot that he is to be the only conservator of the create another general assembly, and delegate peace for the circuit? If so, this provision to it the same power. So far as the president is plainly in conflict with others. See secof the senate and speaker of the house are tions 4, 40. It is apparent that "a" was used concerned, they are presiding officers. There before the word "judge” in the section under can be but one presiding officer. The limita- consideration because, according to our Engtion is in the word "presiding," not in the lish idiom, the sentence could not have been letter "a." Now, in other sections we find euphoniously expressed without it. In some the word "one" used. Section 28, article 7. languages-the Latin and Russian, for inprovides that "the county court shall be held stance-it would not have been used at all. by one judge except in cases otherwise herein It could have been omitted without in the provided." Section 39 : “For every two hun- least impairing the sense, and its use gave dred electors there shall be elected one jus- no additional force or meaning to the sentice of the peace, but every township how-tence. To use the illustration of the learned ever small shall have two justices of the counsel for the state: If one orders "a sack peace." Section 46: "The qualified electors of flour, a ham, a horse, a ton of coal," etc., of each county shall elect one sheriff, it is understood he means but one. So it one assessor, one coroner, one treasurer." So would be understood if he left off the "a, the convention, when limiting the number, and said "sack of flour, ham, horse, ton of used the numerical adjective, or other terms coal," the "a" being used before the words which in themselves expressed affirmatively beginning with the consonant sound simply the idea of one, and hence excluded that of to preserve the euphony. If the limitation any more. This fact, when we consider that is not in the word "judge” without the “a,” constitutions are framed for ages to come, there is certainly no restriction with it. Acaffords the most plausible argument that the cording to Mr. Webster, "a" means "one" or framers of our consti ution purposely omitted"any," but less "emphatically than either." limiting the number of circuit judges, in It may mean one where only one is intended, anticipation of any emergencies in the speedy or it may be any one of a great number. That administration of justice, occasioned by the is the trouble. Of itself, it is in no sense a increase of population and the accumulation term of limitation. If there were a dozen of litigation. Especially is this argument judges in any one circuit each would still strengthened by the fact that judicial cir- be a judge" for that circuit. Mr. Webster cuits were to be composed of contiguous also says, "It is placed before nouns of the counties, many of which, like Pulaski, were singular number, denoting an individual already large, and contained cities that were object, or quality individualized." "Qualrapidly increasing in business and inhabi- ity" is defined as (1) "the condition of betants. It required no great amount of pre-ing of such a sort as distinguished from science to discover and provide for the very others; (2) special or temporary character; contingency which is revealed by the pre- profession, occupation." Webster Dict. The amble to this act. But if, on the contrary,"a" was so used here. The character, or it could be said that the convention had no consideration for the future, and only intended to provide for existing conditions, and that one judge for a circuit was deemed sufficient to meet the requirements of justice at that time, then the conclusion is irresistible that they did not intend to prohibit what they did not contemplate would ever be demanded. Lytle v. Halff, 75 Tex. 136. This is all that is necessary to maintain the validity of the act in controversy. It is undoubtedly true that the convention intended to provide for at least one judge for a judicial circuit. But, unless they also intended to prohibit the creation of more, the act must stand.

66

So the question recurs as to the significance of the letter "a," for the convention must be taken to have meant what they have plainly said. It performs precisely the same office here as in every other section where it occurs. Section 6 of article 7, says, A judge of the supreme court shall be learned in the law," etc.; section 16 says, "A circuit judge shall be learned in the law," etc.; section 41, "A justice of the peace shall be a qualified elector and a resident of the township," etc. Does the word "a" in these sections mean one, and only one, judge or jus- |

profession, individualized, was that of a judge. The functions of the office to be performed were those of "a judge," not governor, sheriff, or constable. A review of the various other provisions of the constitution, supra, where the word "a" occurs, shows that no absurd consequences, such as filling the offices in other departments with a multitudinous array of incumbents could possibly result.

We have not been furnished with any case exactly parallel with the case at bar, but some of those cited in brief of counsel are strongly persuasive. The constitution of Georgia provided: "There shall be a judge of the superior courts for each judicial circuit whose term of office shall be four years and until his successor is qualified. He may act in other circuits when authorized by law." It also provided that "the superior courts shall sit in each county not less than twice in each year at such times as have been or may be appointed by law." The legisla ture made provision, in counties having 10,000 inhabitants, "that two or more judges of the superior court may preside in banc, or that said court may be held in two or more sections at the same time by different judges in any separate rooms in the court

Carson v. St. Francis Levee Dist. 59 Ark. 513; Neal v. Shinn, 49 Ark. 227; Saunders v. Erwin, Id. 376; Scales v. State, 47 Ark 481, 58 Am. Rep. 768; Walker v. State, 35 Ark. 390; Davis v. Gaines, 48 Ark. 385; Williamson v. Mimms, 49 Ark. 350; St. Louis, 1. M. & S. R. Co. v. State, 47 Ark. 323; State v. Nichols, 26 Ark. 74, 7 Am. Rep. 600; Little Rock v. Little Rock Board of Improvements, 42 Ark. 161. These cases, and others cited in brief of counsel, show that this court is thoroughly committed to the doctrine that the maxim

house or at the county site as may be convenient." The district courts of Georgia had both civil and criminal jurisdiction. In Bone v. State, 86 Ga. 108, the defendant was convicted of murder. In his motion for new trial he assigned as error, "that Richard H. Clarke, the presiding judge, had no authority to hold the superior court of Fulton county, for the reason that he was judge of another district, and for the further reason that Marshall J. Clark, the judge of the district, was at the same time holding and presiding over the superior court of Fulton" Expressio unius est_exclusio alterius" is not county, then in session, and engaged in the to be applied with the same rigor in construtrial of civil business in the room provided ing a state constitution as a statute; and that for the superior court." The supreme court only those things expressed in such positive of Georgia, in passing upon this assignment, affirmative terms as plainly imply the negasaid: The constitution requires at least tive of what is not mentioned will be contwo sittings of the superior court in each sidered as inhibiting the powers of the legcounty, but does not prohibit more sittings islature. The first section of article 7 of the to be held, nor does it prohibit two or more Constitution is: "The judicial power of the sections of the superior court, presided over state shall be vested in one supreme court, by different judges, sitting at the same time, in circuit courts, in county and probate where the interest of the public requires the courts and in justices of the peace. Here same to be done, so that justice shall not be the constitution expressly creates the office denied to any one. Nor is it unconstitu- of circuit court; so that the act under contional because it provides for this scheme sideration creates no new office, and confers only for counties containing large cities, the no new jurisdiction, nor does it in any man. legislature having power to classify in gen ner change or take away any jurisdiction aleral terms." The court, it will be observed, ready conferred by the constitution. The was divided into two sections, and two jurisdiction of Judge Martin is just the same judges were holding court at the same time as that of any other circuit judge in the state, in the district. The constitution (like ours) and the only difference between the sixth cir said there shall be "a judge," not two judges, cuit and the other circuits is that the sixth for each circuit. And if the legislature had has two divisions, and an incumbent for each the power to divide the district into divisions division. The governor had the power to and create a place to be filled by another fill the vacancy in the second division by apjudge, we think it can make but little differ-pointment. State v. Askew, 48 Ark. 82. Noence whether he be called from another circuit, which was allowable, or whether he be elected especially for the place. The point, at last, is that there were two divisions of the court, and two judges holding court in the same circuit at the same time, and each performed all the duties of a circuit judge In coming to this conclusion we have not for that circuit while thus engaged in hold-overlooked the salutary doctrine that "in ing the court. See also, Combs v. State, 26 construing constitutions courts have nothing Ind. 98; Ex parte Lloyd, 78 Cal. 421; Lytle to do with the argument ab inconvenienti, and v. Halff, 75 Tex. 129. But we need not go should not bend the constitution to suit the beyond our own decisions for authority to law of the hour." Greencastle Trp. v. Black, 5 maintain the constitutionality of the present Ind. 557, 565. And we agree fully with what act. Our constitution provides that "no is said by a distinguished judge of New county seat shall be established without the York, that "if the legislature or the court consent of a majority of the qualified voters undertake to cure defects by forced and unof the county. Section 3, article 13. In natural constructions, they inflict a wound Vance v. Austell, 45 Ark. 400, this court upon the constitution which nothing can held that this meant a majority of the votes heal." Oakley v. Aspinwall, 3 N. Y. 547, 568. of qualified voters at a legal election on that But we are of the opinion that this gram question, and that there must be such a ma-matical particle "a, whose office is frejority, before the change could take place. But the court also held that there was nothing to prohibit the legislature from requiring "an additional or higher condition for removal." A majority in that case was the minimum. "A judge" in the present case is the minimum. The cases cannot be distinguished in principle. The constitution requires "a judge" for each circuit, and there must be at least one judge. But where is the limitation upon the legislature to provide for more if the necessity arises? See also,

where do we find any limitation upon the number of circuit judges for a circuit. Const. art. 7. SS 13, 17, 18. The number is left to the sound judgment of the legislature, and it cannot be presumed that they will ever abuse their discretion.

quently only to preserve euphony in the use of words and structure of sentences, and whose force often depends upon the mere accident of accentuation, was not used, nor was it ever intended to be used, by the framers of our organic law, so as to obstruct and partially defeat the exalted purpose for which the circuit courts, the "great residuum of all jurisdiction," were created, namely, the speedy administration of public justice.

The demurrer is overruled, and the writ dis charged.

Mary J. WOOD, Appl.,

v.

Henry WOOD.

(59 Ark. 441.)

1. Leave of court need not be obtained
to file a bill of review for errors of law apparent
on the face of the decree.

2. An erroneous order striking from the
files a bill of review will not be reversed unless
it was prejudicial.
3. An amendment to a bill for divorce,
setting up an entirely new and distinct cause to
which answer is made, is the beginning of a new
suit for the purpose of determining the suffi-

ciency of the residence of the plaintiff in the

state to give jurisdiction.

4. The sufficiency of alimony cannot be considered on a bill of review, as the remedy, if the allowance is inadequate, is by ap

peal. 5. Acts of record by counsel consenting to the allowance of alimony in a gross sum, are binding on the client.

6. A divorce from the bonds of matrimony bars a claim of the divorced wife to dower, notwithstanding an implication from a statute denying dower in case of divorce for her misconduct, that the legislature supposed she would be entitled to dower after divorce not based on her misconduct.

(July 21, 1894.)

Feillett v. Engler, 8 Cal. 76; Doctor v. Hartman, 74 Ind. 221.

The divorce not granted for the wife's misconduct should not bar her dotal right.

Mansf. Dig. (Ark.) § 2578; Stilson v. Stilson, 46 Conn. 15; Hunt v. Thompson, 61 Mo. 148; Lamkin v. Knapp, 20 Ohio St. 454; Marvin v. Marvin, 59 Iowa, 699; Allen v. McCullough, 2 Heisk. 174, 5 Am. Rep. 27.

To award a specific sum as alimony is improper.

Brown v. Brown, 38 Ark. 324. The amendment relates back to the date of the suit as originally instituted.

Dwyer v. Dwyer, 26 Mo. App. 647; Thomp80 V. Steam Mill Co. 62 N. H. 303; Wayne Pike Co. v. Hammons, 129 Ind. 368; Electrical Accumulator Co. v. Brush Electric Co. 44 Fed. Rep. 602.

the suit, it subverted and destroyed the original If, as regarded jurisdiction, it commenced complaint.

Electrical Accumulator Co. v. Brush Electric Co. supra.

At common law, the date of the writ was, the commencement of the suit. Chitty, Pl. 260.

The charge of adultery in the amendment was too vague to serve as the basis of a decree. Miller v. Miller, 20 N. J. Eq. 216; Scheffling V. Scheffling, 44 N. J. Eq. 438; Freeman v. Freeman, 39 Minn. 370.

When section 2578 of Mansfield's Digest provision was enacted, the legislature was dealIn such

APPEAL by complainant from a degree of ing with dower in all its features.
the Circuit Court for Pulaski County strik-cases a legislative mistake becomes law.
ing from the files a bill of review which sought
to test the validity of a decree granting divorce
and alimony. Åffirmed.

The facts are stated in the opinion.
Messrs. Martin & Murphy, for appellant:
Bills of review for error in law on the face of
the record or for fraud are matters of right; but
for new matter require special leave of court.

2 Am. & Eng. Encyclop. Law, p. 265; Perry v. Phelips, 17 Ves. Jr. 178; Denson v. Denson, 33 Miss. 560; Edmondson v. Moseby, 4 J. J. Marsh. 500; Bleight v. M'Ilroy, 4 T. B. Mon.

145.

For a divorce prior residence in the state for one year is necessary.

Mansf. Dig. (Ark.) § 2562.

This requirement is jurisdictional. Bradstreet v. Bradstreet, 7 Mackey, 229; Richards v. Richards, 8 Mackey, 431; Watkins v. Watkins, 125 Ind. 163; Reed v. Reed, 52 Mich. 117, 50 Am. Rep. 247.

Failure of pleadings and proof to show such residence is apparent upon the face of the record.

Whiting v. Bank of United States, 38 U. S. 18 Pet. 6, 10 L. ed. 33; Dexter v. Arnold, 5 Mason, 303; Putnam v. Day, 89 U. S. 22 Wall.

60, 22 L. ed. 764.

The parties could not by consent, or in any other way, confer jurisdiction.

Jacks v. Moore, 33 Ark. 31; Lawrence v. Wilcor, 11 Ad. & El. 941; Wyatt v. Judge, 7 Port. (Ala.) 37: Jeffries v. Harbin, 20 Ala. 387;

NOTE. For effect of divorce to bar dower in

general, see Adams v. Storey (Ill.) 11 L. R. A. 790, and for effect of divorce in other state, see Van Cleaf v. Burns (N. Y.) 15 L. R. A. 542.

Postmaster General v. Early, 25 U. S. 12 Wheat. 136, 6 L. ed. 577; Endlich, Interpretation of Statutes, § 372.

J. M. Moore, for appellee:
Messrs. Rose, Hemingway & Rose and

A bill of review will not lie by one estopped to bring error or prosecute an appeal.

Price v. Notrebe, 17 Ark. 55; Herman, Es

toppel, SS 285, 1065-1069; Bradner v. Howard,
75 N. Y. 417; Norvell v. Garthwaite, 25 Tex.
583; Watkins v. Martin, 24 Ark. 14, 81 Am.
Dec. 59; Dismukes v. Halpern, 47 Ark. 319;
Cumby, 53 Ark. 514.
Stanley v. Deihough, 50 Ark. 203; Bolen v.

A wife who receives the amount decreed as alimony cannot afterwards question jurisdiction.

Arthur v. Israel, 10 L. R. A. 693, 15 Colo. 147; Ellis v. White, 61 Iowa, 644; Denver City Irrigation & Water Co. v. Middaugh, 12 Colo. 434; Wiggins v. Atkins, 136 Mass. 294; Snow v. Winslow, 54 Iowa, 201; Faucher v. Grass, 60 Iowa, 505; Orwig v. Merrill, 69 Iowa, 738; Rivers v. Olmsted, 66 Iowa, 186; State v. Jones, 22 Ark. 332; State v. Hand, 6 Ark. 169, 42 Am. Dec. 689; Com. v. South, 80 Ky. 582; Singer v. Singer, 41 Barb 139.

Non assent, mistake, or unfaithfulness of attorneys does not abrogate the rule.

Price v. Notrebe, supra; Putnam v. Day, 89 U. S. 22 Wall. 60, 22 L. ed. 764.

A bill of review will not lie for inadequacy of alimony. The remedy is by appeal.

Bauman v. Bauman, 18 Ark. 330, 68 Am. Dec. 171; Fischli v. Fischli, 1 Black f. 360, 12 Am. Dec. 251.

Leave of court is necessary for new matter

See also 40 L. R. A. 291; 46 L. R. A. 517. ·