Mack v. Johnson

• Decision Date: 23 June 1894
• Citation: 27 S.W. 231
• Parties: MACK et al. v. JOHNSON.<SMALL><SUP>1</SUP></SMALL>
• Court: Arkansas Supreme Court

27 S.W. 231

MACK et al. v. JOHNSON.¹

Supreme Court of Arkansas.

June 23, 1894.

Appeal from circuit court, Sebastian county; Edgar E. Bryant, Judge.

Action by Belle Mack and others against Isaac Johnson. There was a judgment for defendant, and plaintiffs appeal. Reversed.

Sandels & Hill and Rose, Hemingway & Rose, for appellants. Ben T. Duval, John H. Pitchford, and John S. Little, for appellee.

WOOD, J.

We are asked by this appeal to determine whether a widow is entitled to a child's part in the estate of her deceased husband, under section 2599, Mansf. Dig., which is as follows: "The widow of any deceased person, who shall file in the office of the clerk of the court of probate, or with the probate court of the proper county a relinquishment of her right of dower in and out of the estate of her deceased husband, shall be entitled to receive of the estate of which her said husband died seised and possessed, whether real, personal or mixed, a portion or share thereof absolutely in her own right, equal to that of a child, which shall be set aside and delivered to her as now provided by law for dower." This act was approved November 29, 1862. The concluding sentence of section 7 of the schedule to the constitution of 1864 is as follows: "And it is further hereby declared that all laws in force in this state on the fourth day of March, 1861, are still in force, not inconsistent with the provisions of this constitution, and which have not expired by limitation therein contained."

This court, at its December term, 1866, in an opinion by Chief Justice Walker, passing upon this clause, said: "It was evidently the intention of the convention to declare the laws of the state which were in force on the 4th of March, 1861, a code of laws to be in force in the state, to the exclusion of all other laws, which laws so in force on the 4th of March, 1861, were to take effect and be in force from and after the adoption of the constitution of January, 1864, which was adopted by the people of the state, to whom it was submitted for ratification and approval on the 16th day of March, 1864; from which time all other laws were, by necessary implication, repealed." Ex parte Osborne, 24 Ark. 479. When the convention of 1864 is considered in the light of the times which brought it into existence, the purposes for which it assembled, and when the constitution itself is looked to, especially with reference to the language used in the preamble, as well as the schedule, the conclusion is irresistible that the convention intended to put in force a code of laws to the exclusion of all others, as decided in Ex parte Osborne. The reasoning of the learned judge who delivered the opinion is sound, his utterances are clear and forceful, and we certainly could not hope to strengthen the opinion by going over the same ground. This decision has never been overruled, nor its authority in the least impaired by any announcement of this court in any subsequent case. In Berry v. Bellows, 30 Ark. 198, and Bragg v. Tuffts, 49 Ark. 561, 6 S. W. 158, which counsel say conflict "in spirit," the questions were not analogous. In the former, the court, through Judge English, was simply declaring the effect of the clause in the constitution of 1868, and a similar one in the preamble to the constitution of 1864, which declared the convention of March 4, 1861, and "all the action of the state of Arkansas under the authority of said convention, of its ordinances, or its constitution, whether legislative, executive, judicial or military, null and void." In this decision the court reaffirmed the doctrine announced in Hawkins v. Filkins, 24 Ark. 286, and overruled all cases in conflict with it, but Ex parte Osborne was not mentioned. Hawkins v. Filkins decides that the convention of 1864 had no power to declare void ab initio all the acts of the convention of 1861, and all the acts of the state government thereunder which were not in aid of the Rebellion, and in no manner traversing the authority of the general government. Ex parte Osborne was delivered at the same term of the court, at a later day, and in this case Judge Walker says: "There is nothing in the case of Hawkins v. Filkins which in any manner conflicts with the conclusions at which we have arrived." The court, through Judge English, in Berry v. Bellows, was discussing the power of the convention to declare void all laws of the Confederate government from the beginning, which is altogether a different thing from the power of a convention to declare in force a code of laws, prospective in their operation. In Bragg v. Tuffts, which counsel rely upon as overruling Ex parte Osborne, Judge Smith uses this language: "Now, a convention called, for instance, to frame a new constitution, has no inherent right to legislate about matters of detail. All of the powers that it possesses are such as have been delegated to it either by express grant or necessary implication. The passage of an ordinance, then, to raise revenue, was an assumption of powers by the convention that was never ratified by the people of the state; for it is a noteworthy fact that the convention of 1861 never submitted any of its work to the test of a popular vote." The act of the legislature of January 15, 1861, called into being the convention of 1861, to "take into consideration the condition of political affairs, and determine what course the state of Arkansas shall take in the present political crisis." That convention was undertaking by an ordinance outside the constitution, "to provide revenue for the state of Arkansas," to pass a war measure. This was what Judge Smith was discussing; but had he been considering a clause in the schedule of a constitution not in violation of the constitution of the United States, declared by a convention which had assembled to frame a new constitution and set up a new government in harmony with the general government, and which had been ratified by the people, we apprehend no such language as quoted above would ever have been used by him. It may be conceded that the only proper province of a convention, when it undertakes to frame a constitution, is to confine its work to enactments of a fundamental character, and that it transcends conventional functions when it goes into the details of legislation. But we are discussing a...