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in bringing about the sale. That issue should On the 1st day of May, 1916, appellants have been submitted to the jury under cor- brought suit in equity against appellees to rect instructions.

en join them from collecting levee taxes unFor the errors indicated, the judgment is der an alleged void order of assessment, and reversed, and the cause remanded for a new also to declare void said assessment as a trial.

cloud upon the title of their lands. The rec

ord' is voluminous. So in our statement (134 Ark. 447)

of facts only such parts of the record will STATE ex rel. HALL et al. V. CANAL be stated or referred to as will be necessary

CONST. CO. et al. (Nos. 346, 17.) for a determination of the issues raised by (Supreme Court of Arkansas. May 6, 1918. the appeal. Drainage district No. 3 was orOn Motion for Rehearing, May

ganized in 1907, under our general statutes 27, 1918.)

relating to the subject. Kirby's Digest, § 1. DRAINS Cw49—ORGANIZATION OF DISTRICT 1414 et seq. The cost of the construction of -CURATIVE ACT.

The defect in drainage proceedings under the main ditch and the laterals as shown by Kirby's Dig. § 1414 et seq., in that the contract the report of the engineers and viewers was for the construction of the improvement was $108,000. In January, 1908, the contract for awarded to a bidder whose bid exceeded the estimated cost of the construction by more than the construction of the proposed improve25 per cent., contrary to section 1431, was cured ment was offered at a public letting, and by Acts 1909, p. 308, and Acts 1913, p. 107. the Canal Construction Company, having of2. DRAINS Cw49 – CONTRACTS — ADDITIONAL fered to perform the work for $230,231.50, EXCAVATION.

Where the contract of a construction com- was given the contract therefor. There was pany for the construction of a drainage ditch a mistake made in the advertisement, and provided for payment to it of a gross sum based the work was again advertised to be let at upon a named sum per cubic yard for excavat

public bidding. The Canal Construction ing the number of yards in the engineer's estimate, upon discovery of an error in footing Company again bid the sum of $230,231.50 up the total yardage, it was entitled to be paid, and became the contractor for the construcfor the extra yardage found necessary to com- tion of the improvement. It was shown by plete the work, the sum per cubic yard named witnesses that Cole & Hardy offered to perin its original contract. 3. DRAINS 83—ADDITIONAL ASSESSMENT– form the work for a less sum. ORDER IN VACATION.

On the other hand, the president of the Under Acts 1913, p. 107, § 5, providing that Canal Construction Company testified that the county court by order entered of record may Cole & Hardy did not make a bid on the provide for an additional drainage district assessment, such order cannot be made in vaca- work in this district, but made a bid on the tion.

work in another drainage district in Poinsett 4. COURTS Om 66(1)—ADJOURNMENT OF TERM. county which was let at the same time. Be

On the opening day of a term of the county court, the court may adjourn to a fixed day tered into between the board of directors of

that as it may, a written contract was enlater in the term. 5. COURTS C 66(3)—ADJOURNMENT OF TERM. the drainage district and the Canal Con

The presiding judge in a county court has struction Company for the construction of no right to convene the court at a time prior to the proposed improvement. We quote below a fixed day to which the court has been ad- such portions of the contract as we deem necjourned.

. 6. DRAINS C83-ORDER FOR ADDITIONAL As-essary for a proper determination of the is

— SESSMENT.

sues raised by the appeal. One section of the The requirement of Acts 1913, p. 107, § 5, contract reads as follows: that every additional drainage district assess

“Witnesseth, that the Canal Construction ment shall be made in the manner provided by Company of Chicago, Illinois, has this day conlaw for the making of the original assessment tracted and agreed with the county court of means that it must follow the general method Poinsett county, Arkansas, acting for the use and form provided for making the original as- and benefit of drainage district number three sessment, but does not refer to the notice to be (3), in said Poinsett county, to clear the right given in the original assessment.

of way and make all excavation necessary in On Motion for Rehearing.

the construction and completion of the ditch

or canal in drainage district number three (3), 7. COURTS 66(3)—ADJOURNMENT OF TERM. and the nine (9) lateral ditches in said Poinsett

Under Kirby's Dig. § 1531, providing for county, as the same is now set forth in the adjournment of court to å distant day, when a map of said drainage district number three (3) court adjourns to a distant day and does not and the profile of the said ditch or canal in said reconvene the same day, the functions of the drainage district number three (3), now on file court cease after the day on which the order in the office of the clerk of said county court of adjournment is made until the day fixed for of Poinsett county, at and for the sum of thirreconvening.

teen and 95/100 (13/95) cents per cubic yard,

or the gross sum of $230,231.50 for 1,650,405 Appeal from Poinsett Chancery Court; cubic yards shall be taken as full payment for Geo. T. Humphries, Chancellor.

both the clearing of the right of way and the exSuit by the State, on the relation of A. W. cavation necessary in the construction of said

ditch or canal and that no estimate shall be Hall and others, against the Canal Con made or charge made or money collected on acstruction Company and others. From a count of the clearing of the right of way.” judgment for defendants, plaintiffs appeal. The engineer of the district made detailed Reversed and remanded.

estimates of the cost of the work and showed 203 S.W.-45

in his estimates the cost of the work in each appellee Canal Construction Company canstation. Another clause of the contract not recover the cost of the additional yardreads as follows:

age for the reason that its original bid was “And the said Canal Construction Company in excess of 25 per cent. of the estimated does hereby further agree that the number of cost for the completion of the work, Seccubic yards in each station or section of the said ditch or canal shall be taken as correctly tion 1431 of Kirby's Digest provides that estimated in the table of cubic yards by sta- no bids shall be entertained which exceed tions of one hundred feet each in length now the estimated cost of the construction more

coun ty, Arkansas, and in no event shall the Canai than 25 per cent. in any case. The stateConstruction Company ask for a greater number ment of facts shows that the gross sum bid of cubic yards in any section or station of one by the Canal Construction Company for the hundred feet than is set forth in said tabulated construction of the improvement was $230,statement; and the same is hereby made a part of this contract and agreement in the 231.50. This, it is claimed, was more than same sense as if the same were hereto attached 25 per cent. of the estimated cost of the imand made a part hereof."

provement. This defect in the organization

of the district was attempted to be cured by After the work had progressed until about two acts subsequently passed. The Legis87 per cent. of it had been done it was discov- lature of 1909 passed an act to cure all deered that a mistake had been made in footing fects and irregularities in the organization up the estimates so that it was necessary in of certain drainage districts in Poinsett order to construct the ditch as provided in county, including the one in question. Secthe contract that an additional 117,503 cubic tion 2 provides that the assessments that yards of earth be removed. The contractor have been made or that may hereafter be claimed that under his .contract with the made upon the lands in the district to pay drainage district he was to receive 13.95 cents the costs of constructing the improvement per cubic yard for all the earth excavated, shall not be set aside or declared void by and refused to excavate the 117,503 cubic any court on account of any defect or irregyards of earth required to complete the im- ularity in the proceedings or for any cause provement unless he was paid therefor the

whatever. Acts of 1909, p. 308. The Legsum of 13.95 cents per cubic yard, amounting islature of 1913 also passed an act to cure in the aggregate to $16,328.89. After consul- defects in the establishment of this district, tation with the commissioners for the dis- together with other drainage districts in trict and the county court, it was agreed that

Poinsett county. Section 3 of the act prothe construction company would be entitled vides that the special assessments which had to this additional amount under its contract been levied by the county court against the with the district. The Canal Construction lands of the district shall constitute a valid Company then proceeded with the work, and and paramount lien upon such lands. The finished its construction in the fall of 1913. section also provides that the district shall On the 26th day of October 1914, an order be declared legally established. Section 4 was entered upon the records of the county provides that the payment of the bonds of court, providing for an additional assessment the district shall be secured by the special asagainst the various tracts of land in the dis- sessments levied before or which might trict for the payment of this additional cost. thereafter be levied against the lands in the This order purports to have been made un- district on account of the location and conder section 5, of Act 23 of the Acts of 1913. struction of the drainage improvement. SecThis act was passed for the purpose of cur- tion 5 declares that the benefits to the lands ing defects and ratifying all the proceedings shall constitute the basis for an assessment. for the establishment of certain drainage It further provides that in the event the agdistricts in Poinsett county, including the gregate of the amount which had been apone in question. It is claimed by appellees portioned and assessed against the several that this order was made during the sitting tracts of land in the district shall prove inof the county court, and by appellants that sufficient to pay the costs of the location, it was made in vacation, and on that account construction, and repairs of the improve. is void. The purported order levied addi- ment, the county Court of Poinsett county tional assessments payable in one, two, and may, by an order entered of record, provide three years for the purpose of paying the for an additional assessment against the sev. additional costs above referred to. Hence eral tracts of land in the district in proporthis lawsuit. Other facts will be stated or tion to the benefits ascertained as above menreferred to in the opinion.

tioned. It also provides that every such adThe court found the issues in favor of ap- ditional assessment shall be made in the pellees, and the case is here on appeal.

manner provided by law for making the origHawthorne & Hawthorne, of Jonesboro, inal assessment. Acts of 1913, p. 107. for appellants. N. F. Lamb, of Jonesboro, [2] It is well settled that the Legislature for appellées.

has the power to pass healing acts which do

not impair the obligation of contracts nor HART, J. (after stating the facts as interfere with vested rights. Green v. Abraabove). [1] It is contended by appellants that ham, 43 Ark. 420, and Gibson v. Incorporated

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Town of Hoxie, 110 Ark. 544, 162 S. W. 568., they would bid, of course, would largely de It is well settled in these and in numerous pend upon the number of cubic yards of other cases of similar import in this state earth to be removed. The construction comthat, if the defect consists in doing some act, pany would be entitled to be paid for the or in the mode or manner of doing it, which total number of the cubic yards of earth exthe Legislature might have made immaterial cavated by it at the percentage price per cuby a prior law, it may do so by a subsequent bic yard named in the contract. Their rights one. It is manifest that the provision that under the contract could not be subsequently no bids shall be entertained which exceed impaired either by the drainage district or the estimated cost of the construction more by the Legislature. Recognizing that vested than 25 per cent. might have been dispensed rights under the contract could not be interwith by the Legislature in the original stat- fered with, the Legislature passed the act of ute. Hence in the application of the rule in 1913 referred to above, curing all defects and regard to curative acts, the Legislature might ratifying all proceedings for the establishdispense with this requirement by a subse- ment of the drainage district and providing quent statute. This is virtually conceded by for additional or new estimates upon the counsel for appellants, but it is insisted by lands in the district. Acts of 1913, p. 107. counsel that, while these curative acts may [3] As we have already seen, section 5 prohave validated the proceedings, so far as vided that the county court by an order enthe payment of the aggregate amount of tered of record might provide for additional $230,231.50 is concerned, its action was void assessments against the lands if it should be so far as authorizing the payment of an ad-found that the aggregate, of the amounts alditional amount for the extra yardage which ready assessed should prove insufficient to was found necessary for the completion of pay the costs of the improvement. Under the contract. This brings us to a considera- this section the county judge caused the ortion of the provisions of the original contract der dated October 26, 1914, to be entered upfor the construction of the improvement. By on the records of the county court. It will its terms the rights and obligations of the be noted that under the terms of the act the parties to it are created, and, as we have al- order must be made by the county court, and ready seen, the Legislature cannot pass an could not be made by the judge thereof in act impairing its obligations or interfering vacation. The opening order of the county with rights vested under it. The subject- court for the October 1914 term is as folmatter of the contract was the construction lows: of the drainage ditch or canal. In order that contractors might more intelligently bid

"Opening Order. upon the work of construction, the engineer “State of Arkansas, County of Poinsett: for the district made a survey of the pro- of October, the same being the first Monday in

"Be it remembered, that on this the 5th day posed route and laid it off into numerous October, and the time fixed by law for the holdstations. A detailed estimate of the amount ing of a term of the Poinsett county_court; of dirt to be removed on each station was present and presiding was the Hon. B. F. Cole. prepared by the engineer and submitted to judge of said court; also present and assistthe bidders as a part of the specifications. ders, clerk of the said court, and J. C. Hooten.

ing in holding said court was Hon. A. H. LanIt seems that in footing up the totals a mis- sheriff of said court, and after proclamation of take was made in the amount of yardage of the sheriff in opening said court that following earth to be excavated before the ditch could proceedings were had and done, to wit: Order

ed that court adjourns until October 28th, 1914. be constructed according to the specifica

"B. F. Cole, Judge.” tions. This was not discovered until more than 80 per cent. of the work of construction

[4] The order in question is entered upon had been completed. The construction com- the record of the court following the opening pany refused to go any further until the order, and purports to bear the date of Ocmistake was corrected. It claimed that it tober 26, 1914. Under our statute certain made its bid at a certain per cent. per cubic times and places are fixed by law to hold yard, and that the gross sum named in the court. In the instant case the court was contract was simply the estimate of the to- | open at the time and place and in the mantal cost under the specifications. We think ner provided by law. It was a matter which this construction is a reasonable one, and is rested in the discretion of the presiding borne out by the two sections of the contract judge to hold the court open until all its buswhich we copied in our statement of facts. iness had been dispatched or to adjourn to The bid of the construction company was a day certain. It appears from the record predicated upon the correctness of the esti- that on the opening day the court adjourned mates prepared by the engineer of the drain- to a fixed day later in the term. This he had age district. It could not intelligently make the power to do. Dunn v. State, 2 Ark. 229, a bid without surveying the work itself or 35 Am. Dec. 54; Butler v. Williams, 48 adopting the survey and estimates made by Ark. 227, 2 S. W. 843; Streett v. Reynolds, the engineer of the district. Doubtless the 63 Ark. 1, 38 S. W. 150; Ex parte Baldwin, parties had gone over the proposed route 118 Ark. 416, 176 S. W. 680. and had observed the kind of earth that was [5, 6] When the court adjourned to a day to remain away until the day fixed by the We do not think that case sustains the posicourt to convene again, and the judge could tion taken by counsel. We did not overlook not before that day arrived convene the it in our original opinion, but thought that court and proceed with the dispatch of the it rather tends to uphold the decision of the cases and other matters pending therein. court. There the circuit court record showThe fact that by a statute in this state ed, “Ordered that court adjourn until courts must be held at fixed times and plac- ,” and, immediately following the enes raises the implication that courts cannot try, "ordered that court adjourn until Thursassume a vagrant character and hold its ses- day morning, March 4, 1915." The court sions at other times or places than those was of the opinion that the first order provided by law. Mell v. State, 202 S. W. 33. showed on its face that it was incomplete, The presiding judge had no right to convene and that it was controlled by the subsequent the court on the 26th day of October, after entry on the same day, showing that the adhaving adjourned it to a fixed day which journment was to a definite date. Hence the was later in point of time. Therefore the court held that the term did not lapse. In order entered upon the record of October 26, that case the court said that our statute does 1914, was made in vacation, and furnished no not take account of parts of days, and for basis for an additional assessment of the that reason has the power to reconvene on land that was within the district. To make the same day for the purpose of transacting such assessment a valid one we are of the business even after it has announced an adopinion that it must be made by the county journment. The court, however, expressly court during its sitting and not in vacation. stated that our statute manifestly contemThe last part of the section which provides plates different days of the term of court. that every such additional assessment shall Section 1531 of Kirby's Digest provides for be made in the manner provided by law for the adjournment of court to a distant day. the making of the original assessment means This shows that we have departed from the that it must follow the general method and common-law rule that a term of court shall form provided for making the original as- be considered as one day. For that reason sessment. It does not refer to the notice to when a court adjourns to a distant day and be given in the original assessment, as con- does not reconvene the same day the functended by counsel for appellants. This is tions of the court cease after the expiration obvious when we consider the statute in con- of the day on which the order of adjournment nection with the object sought to be accom- is made until the day fixed for reconvening. plished by it. It was evidently the intention During the interim the court has no power to of the lawmakers to provide for an addi- transact business. In this state both the tional assessment to cover the cost of the time and place of holding court in each additional yardage which had been found county are fixed by law. Litigants must to exist by reason of the mistake in making take notice of the time and place where . the totals of the original estimates on the courts of record are held. various stations. The framers of the statute When the court made the order adjournevidently intended to give to the county ing to a distant day, the litigants and incourt the power to make this additional as- terested parties had a right to assume that sessment, and provided that it should be the functions of the court would cease until made in the general method or form provid- that day, and that no business would be ed for in the original assessment. Because transacted in the court until the day desigthe order for the additional assessment was nated for the court to reconvene. According made in vacation and not during the session to the record, the court adjourned to a given of the court, the decree will be reversed, and day in the future, and, without rescinding the cause remanded for further proceedings that order, convened court on a day between not inconsistent with this opinion.

the date of the adjourning order and the

date fixed for the court to reconvene. The On Motion for Rehearing.

order in question was made on that day, and [7] Counsel for appellee in their motion the court had no power to make it. for a rehearing rely upon the case of Ex Therefore the motion for a rehearing will parte Baldwin, 118 Ark. 416, 176 S. W. 680. be denied.

(180 Ky. 794)

Q. When did you get the money out of the COMMONWEALTH v. CRASS.

bank here? A. I don't know that I got it out

of the bank here; I usually have money at (Court of Appeals of Kentucky. May 31, 1918.) home. Q. Did you win that money, or did you 1. CRIMINAL LAW Cm 97(1)-LOCALITY OF OF-win the bets? A. Yes, sir. Q. Who paid you?

A. The Dukedom Bank. Q. Where were you FENSE-BETTING ON ELECTIONS. Where defendant went 20 miles to Tennessee Dukedom and got it. Q. After the election?

when you received the money ? A. I went to with witness for the state, where they made an A. Yes, sir. Q. Where does the defendant live? election bet, the court erred in acquitting de: A. I could not tell you. Q. You don't know fendant of betting on an election in violation of where Will" Crass lives? Ky. St. § 1975, although the only witness tes-Where did he live at the time you made the

A. No, sir. Q. tified that he did not know what he was going bet? A. I don't know. Q. Now, didn't he live to Tennessee for, and that no agreement to bet here in this county at that time? Å. I didn't was made before they left.

know him the first time I met him. Q. Well, 2. ELECTIONS 315-BETTING ON ELECTION who introduced you to him? A. Nobody. Q. -OBJECT OF STATUTE.

How did you get together; you said you didn't The object of Ky. St. § 1975, prohibiting know him; did you go to his place?' X. No, sir. betting on elections, is to protect the purity of Q. Where did you meet? A. About half way the elective franchise, and to secure perfect between here and the store; he came to me. Q. freedom and impartiality, and should be con- What did he say when he come to you? A. He strued to accomplish such object.

says, 'I am ready to go to Dukedom, Tenn.' Appeal from Circuit Court, Graves County. Q. For what purpose? A. I could not tell you.

Q. Did you ask him what for? A. No, sir. Q. Will Crass was acquitted of betting on an Did you go to Dukedom with him not knowing election, and the Commonwealth appeals. what you were going for? A. Yes, sir. Q. You Reversed for a new trial.

had no idea what you were going over there

for? A. No, sir.' Chas. H. Morris, Atty. Gen., and D. M.

[1, 2] The defendant would have us beHowerton, Asst. Atty. Gen., for the Com- lieve either that he and Simpson traveled monwealth. J. E. Warren, of Mayfield, for from Mayfield to Dukedom, and returned, a appellee.

distance of 20 miles or more, on two sepa

rate occasions, not knowing what they were MILLER, J. The appellee, Will Crass, going for, or that, in the language of the was indicted by the grand jury of Graves sporting fraternity of Mayfield, when one county for betting on an election. Graves citizen says to another, “I am ready to go to county extends southwardly to the Tennessee Dukedom, Tenn.,” he really means they have state line, and Dukedom is situated in Ten-already made a bet in Mayfield, and would nessee immediately south of and next to the go through the farce of riding down to DukeGraves county line. The defense is that the dom and back for the purpose of evading the bet was not made in Kentucky, but was statute. The last is most probably true; but made at Dukedom, in Tennessee. Upon a

the courts will not permit the laws to be trial of the case by the circuit judge with-thus evaded. People are to be judged by out the intervention of a jury, Crass was ac- what they do, and from the usual and orquitted. The commonwealth appeals.

dinary results of their acts, rather than from The commonwealth introduced but one their words, whenever they are contradicwitness, W. J. Simpson, the man with whom

tory. Crass made the bet. The defendant offered

The statute provides that: no proof. Simpson testified that he and

If any person shall wager or bet any sum Crass met in Mayfield, and from there went of money or anything of value upon an election together in an automobile to Dukedom, a dis- * * * he shall be fined one hundred dollars, tance of about ten miles; that he made to be recovered in any county where the party

so offending may be found, or where the bet is three bets with Crass aggregating $500; that made." Ky. Sts. § 1975. the bets were made in Dukedom, Tenn.;

The object of the statute is to protect the that they first agreed on making the bets purity of the elective franchise, and to sewhile in the Dukedom Bank; and that noth- cure perfect freedom and impartiality in the ing was said in Mayfield about making a bet. exercise of this inestimable right; and such For the purpose of being more specific, we construction should be given the statute that quote from Simpson's testimony as follows: will accomplish the object intended. Com

“Q. How much did you bet when you got there (meaning Dukedom)? A. $100. Q. Bid monwealth v. Kirk, 4 B. Mon. 1. you agree on that before you left here? A. No, We are of the opinion that the bet in this sir. Q. Well, what did you go over there for? case was made in Graves county, and that A. I don't know. Q. What did the defendant the parties traveled to Dukedom merely for go with you over there for? A. I could not tell: the purpose of evading the statute.

. Q. How many times did you and the defendant the purpose of evading the statute. No other go over to Dukedom to make bets? A. Twice. conclusion can be drawn from Simpson's tesQ. You went twice, and you made three differ- timony. ent bets? A. Yes, sir. Q. How much money

Many similar attempts to evade prosecudid you carry with you the first time? A. I don't remember. Q: How much the second tion under the local option laws of this time? A. I don't remember. Q. How much state are to be found in the books. It is did you have up over there in all with the true section 2570 of the Kentucky Statutes defendant on that election? A. It was either $500 or $550. Q. Did you put the money up expressly provides that “no trick, subterfuge in cash, or by check? A. Put it up in the bank. Jor devise shall be allowed to evade the pur

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