Evans v. Clark, 1 Indian Terr. 216

Evans v. Clark

1 Indian Terr. 216 | Ct. App. Ind. Terr. | 1897

Springer, C. J.

(after stating the facts.) There but one question presented by the record in this case whic we are called upon to consider. In order to understand tl question in issue, the following provisions of the constitil tion and laws of the state of Arkansas are cited: Firs! Section 22, art. 5, of the constitution of 1868 of the state Arkansas, which is as follow’s: “No act shall embracemoj than one subject, which shall be embraced in its title, public act shall take effect or be in force until ninety (9(| days from the expiration of the session at whichthe same passed, unless it is otherwise provided in the act. ” Secon| The first clause of section 1 of the schedule to the constit| tion of the state of Arkansas of 1874, which is as folio v “All Laws now in force which are not in conflict or incc sistent with this constitution shall continue in force uni amended or repealed by the general assembly.” Thiil An act to amend an act of the Arkansas legislature approv| April 9, 1891, which is as follows: “That section fc hundred and seventy-six (476) of Mansfield’s Digest of t| statutes of this state be amended so as to read as folio1? ‘Nothing in the preceding section shall apply to a bill of change or negotiable promissory note, transferred in gc faith and for value before maturity, but such instrumd shall be governed by the rules of the law merchant concej ing commercial and negotiable paper. Provided, that 1| payer and drawer in all notes, drafts and bills of exchar executed or drawn in payment of any patent right or patl right territory shall be permitted to make all defenl against any assignee, endorser, holder or purchaser of sr note, draft or bill of exchange, that could have been m¡| against the original payee or drawee, whether such no draft or bill of exchange be assigned or transferred befJ maturity or not. ’ ” These several acts were in evider The provisions of the constitution of 1868 and 1874 w| *221Imitted in evidence over the objection of the defendants how (the appellants in this court.) The appellants asked ie court to instruct the jury as follows: “The court further structs you that if you believe from the evidence that the )te sued on was executed or drawn in payment of any patent ght or patent right territory, and if you believe further iat there .was fraud in the inception of the instrument, or .at the consideration for which the same was executed has iled, you must find your verdict for the defendants, ’ ’— hich instruction was refused. The court thereupon inducted the jury, among other things, to the effect that if ere was fraud constituting a defense in the procurement of note, and the plaintiff was an innocent purchaser of said te before maturity, for value, the jury should find for the aintiff, regardless of the question whether or not ere was fraud in the procurement of the note, unsel for appellee in their brief call attention to the fact at no exception was taken to this and to other instructions /en, by the appellants, and contends that the propriety of instruction cannot be questioned here. It is true that no ception was taken to the instruction given by the court, e appellants requested the giving of an instruction, quoted Dve, which was refused, which instruction, if given, would e been inconsistent with the one given by the court, ere a party takes proper exceptions to any matter in the ord, it is not necessary to take other exceptions, if the option first taken covers the matter in issue. The e vice in the case tends to show that the consideration for the e sued upon was an interest in a certain patent right and ent right territory. The act of the legislature of the e of Arkansas above quoted was approved April 9, 1891. note in issue was payable at the Merchants’ Bank of Smith, Ark., and was dated May 1, 1891, which was 21 s after the passage of the act of April 9, 1891. If sec-22 of article 5 of the constitution of 1868 was continued *222in force by section 1 of the schedule of the constitution c 1874, and made a part of the latter constitution, the ac would not have taken effect until 90 days from the expire tion of the session of the legislature at which the same ws passed, and in that event the said act would not have bee in effect at the time the note was executed, and the no1 would not have been affected by the provisions in referenc to patent rights and patent right territory contained in sai act. But, on the contrary, if section 22 of article 5 was n< made a part of the constitution of 1874, said act took effe< on the date of its passage; and the provisions thereof whic permitted the appellants, the makers of the note in questio: to make the same defense against the indorsee or holder i ' the note which they could have made against the origin payee, would have been in force when the note was execute The instruction asked by the appellants which was refuse by the court covered this point, and correctly stated the lai if appellants’ contention is correct. The constitution of tl state of Arkansas of 1874 was a complete instrument in itsel and was intended to embody all constitutional provisio: which were to be continued in force thereafter. If tl framers of that instrument had intended that a part of tl constitution of 1868 was to be continued in force, such par would have been incorporated in the body of the instrumer It would be seen, upon inspection of the two constitution that there are many provisions in the latter constituti<H which were copied verbatim from the previous constitutioM The including of certain provisions of the constitutiB of 1868 in the provisions of that of 1874, in the very worH in which they appear in the former instrument, must H construed as the exclusion of all provisions not incorporatH in the new constitution, or incorporated with modificatioiH The language of the first clause of section 1 of the schedijH to the constitution of 1874, which appellee contends carriH section 22 of article 5 of the constitution of 1868 into, a:H *223íade it a part of, the constitution of 1874, is as follows: All laws now in force which are not in conflict, or incon-istent with this constitution, shall continue in force until mended or repealed by the general assembly.” The words all laws now in force, ” can only have reference in this con-ection to the statutes theretofore passed by the legislature, imilar provisions to this are generally incorporated in new mstitutions for the purpose of continuing the statutes íeretofore passed, not in conflict with the new constitution, itil they are amended or repealed. This construction is istained by reference to the latter clause of the provision, hich is as follows: “Until amended or repealed by the gen■al assembly.” Constitutional provisions cannot be amen d-L or repealed by the general assembly. Every state con-itution points out the manner in which it can • be repealed amended. That manner is by the submission of ' the rendment to the votes o E the people, or by calling new nventions. It would be an exceedingly unreasonable conduction of the provision in question to assume that the imers of the constitution of 1874 intended to incorporate it a provision which the general assembly of the state aid amend or repeal. The words in the provision in ques-n, £ ‘All laws now in force * * * shall continue in force til amended or repealed by the general' assembly, ” admit I and can receive, but'one construction: The laws referred Bare statutes passed by the legislature, and not constitu-Bnal provisions which cannot be amended or repealed by B» legislature. It seems that the supreme court of the Bte of Arkansas has not construed this provision in any Be called to our attention, but in the case of Tilson vs Hustling, 60 Ark. 114, 29 S. W. 35, the note about which the Ktroversy arose in that case was executed July 1, 1891, IBich was not 90 days after the adjournment of the legis-Hire which passed the act of April 9, 1891. But if section H>f the constitution of 1868 had been continued in force by *224the schedule of the constitution of 1874, said act would no have been in force at the time that note was executed. It i true, as stated by counsel for appellants, that no point o this kind was raised before the court; but we cannot imagim that the supreme court of the state of Arkansas, or th< counsel in the case, would have overlooked such a point a this, or omitted to have raised it. In that case the cour gave effect to an act which would not have been in force i the contention of the appellee in this case is correct. W are of the opinion, therefore, that section 22 of article-5 o the constitution of 1868 of the state of Arkansas is not part of the constitution of that state of 1874. and that th| act of the general assembly of Arkansas of April 9, 189: took effect from and after its passage; that it was in effe< when the note in controversy was executed; that under thl provisions of that act the appellants, the makers of sai| note, should have been permitted to make all defens' against the appellee, the indorsee or holder of said not' that could have been made against the original paye' whether such note was assigned or transferred before m; turity or not. The court below therefore erred in refusi: the instruction asked for by the counsel for the appellantl The judgment of the court below is therefore reversed, a the case remanded for further proceedings in accordam with this opinion. Reversed and remanded.

Instructions. Exceptions, Constitution of 18(58 abrogated. Promissory note — Defense against innocent purchaser. Kilgore and Clayton, JJ., concur.