text:
    McAdams v. Henley.
    Opinion delivered June 29, 1925.
    1. Evidence — judicial notice— legislative journals. — The courts take judicial notice of the contents of journals of the two houses of the General Assembly.
    2. Constitutional law — amendments to constitution. — In amending- the Constitution the General Assembly does not act in the exercise of its ordinary legislative authority, but it acts in the character and capacity of a convention.
    3. Constitutional law — amendment to constitution. — The Constitution is the supreme and paramount law, which can be amended only in accordance with the rules thereby prescribed.
    4. Constitutional law — entry op amendment on journals.— Const, art. 19, § 22, requiring that proposed amendments to the Constitution “shall be entered on the journals with the yeas and nays,” is mandatory and requires that such amendments be entered at length upon the journals of each 'house of the General Assembly, and it is not sufficient to make a mere identifying reference by title or otherwise.
    5. Constitutional law — amendment as to local laws. — The omission from the Senate journals of amendments adopted in the House, to the Senate resolution proposing Constitutional Amendment No. 12, prohibiting the passage of lbcal laws by the Legislature held to invalidate the amendment for non-compliance with Const, art. 19, § 22, though the amendment received the required number of votes at the next general election.
    6. Constitutional law — function of courts. — Questions of .policy are not for the courts, which can only decide whether constitutional limitations are infringed, or whether a constitutional amendment has been approved by the people in the manner prescribed by the Constitution.
    7. Highways — diversion of road district’s funds. — Acts 1925, No. 53, authorizing a road district to use a part of its funds in part payment of cost of building a new bridge over a small stream crossed by the road held not void as impairing vested rights or authorizing the diversion of tax moneys to other uses than those for which the tax wlas levied, in violation of Const, art. 16, § 11, as the statute constitutes a legislative determination • that the bridge is a part of the road.
    8. Highways — diversion of- tax moneys. — Constitution, art. 16, § 11, prohibiting the use of tax moneys for any other purpose than that for which the tax was levied, applies only to general taxation, not to local assessments.

      Appeal from Craighead Chancery Court, Western District; J. M. Futrell, Chancellor;
    reversed.

      Horace Sloan, for appellant.

      Arthur L. Adams, for appellee; Hal L. Norwood, amicus curiae.

   McCulloch, C. J.

This case involves the validity of a statute enacted by the General Assembly of 1925 (Act No. 53, unpublished) authorizing a road improvement district in Craighead County to contribute of its funds a specified amount in the construction of a bridge spanning Cache River in the route of the road; and the primarily controlling question in the case is whether or not proposed amendment No. 12, which would prohibit the Legislature from passing bills for local laws and which was voted on at the genaral election of October 7, 1924, was legally adopted. The validity of the amendment is assailed, on the ground that it was not proposed by the General Assembly in the manner prescribed by the Constitution, in that the proposal was not “entered on the journals with the yeas and nays.” Constitution! 1874, art. 19, § 22.

The validity of this amendment was not directly involved in the decisions of this court in the recent cases of Brickhouse v. Hill, and Arlitt v. Hill, 167 Ark. 513, but those cases are decisive that this amendment received the requisite number of favorable votes for its adoption.

The Constitution of 1874 (art. 19, § 22) prescribes the following method for proposing and adopting amendments thereto:

“Either branch of the General Assembly at a regular session thereof may propose amendments to this Constitution, and, if the same be agreed to by a majority of all members elected to each house, such proposed amendments shall be entered on the journals with the yeas and nays, and published in at least one newspaper in each county, where a newspaper is published, for six months immediately preceding the next general election for Senators and Representatives, at which time the same shall he submitted to the electors of the State for approval or rejection; and if a majority of the electors voting at such election adopt such amendments, the same shall become a part of this Constitution; but no more-than three amendments shall be proposed or submitted at the same time. They shall be so submitted as to enable the electors to vote on each amendment separately.”

It has often been decided by this court that we take judicial notice of the contents of the journals of the two Hjouses of the General Assembly, and in doing so in the present case we find the following state of the record with reference to the proposal for the adoption of said amendment No. 12.

The proposal originated in the Senate and was designated on the journal as “Senate Joint Resolution No. 9 by Norfleet and Caldwell,” and the resolution was spread at large on the journal in the following form:

“Senate Joint Resolution No. 9.”
“Proposed Amendment to the Constitution of the State of Arkansas:
“Be it resolved by the Senate of the State of Arkansas and the House of Representatives of the State of Arkansas, a majority of all the members elected to each House agreeing thereto, that the following is hereby proposed as an amendment to section 26 of article 6 of the Constitution of the State of Arkansas, and upon being submitted to the electors of the Sta+e for approval or rejection at the next general election for Senators and Representatives, if a majority of the electors votina at such election adopt such amendment, the same shall become a part of the Constitution of the State of Arkansas, towit:
“Section 1. No local or special bill shall be passed hv the General Assembly of the State of Arkansas. Counties and municipalities shall have the power of legislation as to all local and special legislation of every character in and for their respective municipalities and counties, the manner to he provided by law; but no local legislation shall be enacted contrary to the Constitution or contrary to any general law of the State, and any general law shall have the effect of repealing any local legislation which is in conflict therewith.
“Municipalities may provide for the exercise of the initiative and referendum as to their local legislation. General laws shall be enacted providing for the exercise of the initiative and referendum for local acts passed as herein provided as to the counties.
“Fifteen per cent, of the legal voters of any municipality or county may order the referendum or invoke the initiative upon any local or special measure.
“In municipalities the number o.f signatures required upon petition shall be computed upon the total vote cast for the office of mayor at the last preceding general election; in counties upon the office of circuit clerk.
“In municipalities and counties the time for filing an initiative petition shall not be fixed at less than sixty nor more than ninety days before the election at which if is to be voted upon; and for a referendum petition, not less than thirty days nor more than ninety days after the passage of such measure by a municipal council.
“Section 2. This amendment shall take effect and be in force and operation sixty days after its approval and adoption by the people of the State of Arkansas.”

On a later day the Senate adopted the resolution by the necessary two-thirds vote, and the resolution, as originally introduced and entered on the journal, was re-entered on the journal together with the yea and nay vote thereon, showing the adoption. The resolution as adopted by the Senate was then transmitted to the House and was read the first time and spread at large upon the journals of the House! There was, according to the recitals in the journal, á motion to table the resolution, but the motion failed o.f adoption. On a subsequent day a member of the House offered the following amendment to Senate Resolution No. 9:

“Amendment to Senate Joint Resolution No. 9. '
“Amend Senate Joint Resolution No. 9 by striking out the following words in line 1 of section 1, to-wit: ‘or special.’
“Also by striking out the following words from the first paragraph of section 1, to-wit: “And any general law shall have the effect of repealing any local legislation which is in conflict therewith.’
“Also by striking out from section 2 the following words, to-wit: ‘Sixty days.’ ”

The journals recite that this amendment to the resolution was read the first and second times and adopted, and immediately following the vote there is a recital in the House journal that Senate Joint Resolution No. 9 was read the third time and placed on final passage, and that the resolution was adopted. This occurred according to the journal, on March 6, 1923, and in connection with this recital in the journal the resolution as it came from the Senate was again spread at large with a recital of the vote by yeas and nays showing the adoption of the resolution by more than two-thirds of the House. The last recital of the House journal, which was on the same day as the adoption of the resolution, was that “Senate Joint Resolution No. 9 was ordered immediately transmitted to the Senate.” The recitals of the Senate journal on March 7, 1923, are as follows:

‘ ‘ Senate Joint Resolution No. 9 by Norfleet and Caldwell.

Was read the third time and placed on final passage.

The question being, shall the bill pass?

The Secretary called the roll and the following voted in the affirmative:

(Then follows the entry of the vote by yeas and nays showing the adoption of the amendment). There is no reference anywhere on the Senate journal as to any amendment of the resolution in the house. The Senate journal on March 6,1923, contains a copy of the message from the House announcing the adoption “of Senate Resolution No. 9 by Senator Caldwell and others,” but that announcement makes no mention of any amendment by the House. The last entry on the Senate journal is a report from the Committee on Enrolled Bills to the effect that Senate' Joint Resolution No. 9 by Senator Caldwell had been presented to the Governor for his approval. The enrolled resolution on file in the office of the Secretary of State omits the words specified in the House amendment to the resolution, and in this form the proposed amendment was duly advertised and submitted to the voters on the ballot at the general election in 1924.

It is thus seen that the House amendment to the resolution was never entered on the journals of the Senate, and that the proposed amendment which was entered at large on the journals of the Senate is materially different in its language and import from that which was submitted to the people at the next general election.

If we were dealing with the validity or with the construction of a statute enacted by the Legislature,. it would be a matter of interpretation or rather a matter of presumption whether the recitals of the House journal meant that the amendment to the resolution was receded from and the original Senate resolution finally adopted, or whether the amended resolution was adopted, notwithstanding the entry at that place on the journals of the original Senate resolution; but that is not the question in this case in determining the validity of the proposal, nor are we deeding with the question of presumption to determine whether or not the two houses of the General Assembly agreed upon the same proposal. The real question is whether the omission from the Senate journals of the House amendment and the substantial difference between the amendment entered on the journal of the Senate and the one submitted to the people renders the adoption by the people ineffectual.

At an early date in the history of the State it was decided by this court in State v. Cox, 8 Ark. 436, that in amending the Constitution the General Assembly “does not act in the exercise of its ordinary legislative authority of its general powers, but it possesses and acts in the character and capacity of a convention.” This doctrine was repeated in the recent cases of Whittemore v. Terral, 140 Ark. 493, and Mitchell v. Hopper, 153 Ark. 515. In the last-cited case we decided that it is not essential that a resolution of the General Assembly proposing an amendment to the Constitution be submitted to the Governor for approval, and that the Governor has no power under the Constitution to veto such a resolution. In the case of Rice v. Palmer, 78 Ark. 442, the court quoted with approval the language of another court in announcing fundamental'principles which must be controlling in the present inquiry. That language is as follows:

“The Constitution is the supreme and paramount law. The mode by which amendments are to be made under it is clearly defined. It is said that certain acts are to be done, certain requisitions are to be observed before a change can be effected. But to what purpose are these acts required or the requisitions enjoined, if the Legislature or any other department of the government can dispense with them? To do so would be to violate the instrument they are sworn to support; and every principle of public law and sound constitutional policy requires the court to pronounce against every amendment which is shown not to have been made in accordance with the rules prescribed by the fundamental law.” Collier v. Frierson, 24 Ala. 108.

We find, in fact, from an examination of the authorities that they are unanimous, with two exceptions, in holding that provisions of the Constitution with reference to the method, of adopting amendments are mandatory and must be complied with in order to amend the Constitution. The only conflict in the authorities is in the interpretation of certain requirements, particularly the one now under consideration, to be found in most Constitutions, to the effect that proposals submitted by the Legislature shall be entered on the journals. The only exceptions to this rule are found in the Prohibitory-Amendment Case, 24 Kan. 700, to which we will later advert, and in the case of West v. State, 50 Fla. 154, where it was held that the constitutional provision in question was merely directory. It follows, therefore, from the overwhelming weight of authority that, if the language of our Constitution be interpreted to mean that a proposal of an amendment to the Constitution must be entered in extenso on the journal of each of the Houses, this amendment was not legally adopted, for it is clear that the amendment submitted to and voted on by the people was not the saíne in .substance as that found to be entered at large on the journals of the Senate.

The authorities bearing on an interpretation of the language in other constitutions identical with, or similar to, that found in the Constitution of this State concerning the method of proposing amendments are not harmonious, nor are they very abundant. There are many decisions referring to the question of legal methods of proposing and adopting constitutional amendments, but when we come down to the very question involved in this case the authorities are not numerous, and in several of the States the decisions of the courts of last resort are hopelessly conflicting. In a note to a case in 9 Am. & Eng. Ann. Cas, we find, on page 587, the following statement of the law:

“A distinction has been drawn between the rules governing acts proposing constitutional amendments and those applying to ordinary statutes which are assailed as not having been constitutionally enacted. AVhere it is provided in the Constitution that ‘ ‘ any amendment or amendments to this Constitution may be proposed in the Senate or Assembly, and if two-thirds of all the members elected to each of the two houses shall vote in favor thereof, such proposed amendment or amendments shall be entered in their journals with the yeas and nays taken thereon, and it shall be the duty of the Legislature to submit such proposed amendment or amendments to the people,” etc., it is held that the journal must show the amendment and vote thereon, and that the court will look to the journals to ascertain if the proper steps were taken. It is further held that the journal is the record from which it must appear that the amendment has been enacted in the form required by the Constitution, and that the rule whereby a statute which has been enrolled, authenticated, and deposited with the Secretary of State cannot be impeached by reference to the legislative journals has no application.”

The eases holding that this constitutional requirement is satisfied merely by an entry which sufficiently identifies the proposal by reference to title, or otherwise, seem to ibe in the majority. Prohibitory-Amendment Cases, 24 Kan. 700; Worman v. Hagen, 78 Md. 152; Oakland Paving Co. v. Tompkins, 72 Cal. 5; People v. Sours, 31 Colo. 369; State v. Herriad, 10 S. D. 109; Postel v. Marcus, 160 Wis. 354; Ex parte Ming, 42 Nev. 472; 181 Pac. 319, 6 A. L. R. 1216. There is a case note in 6 A. L. R. 1227, which fully reviews the authorities on this subject. On the other hand, there are cases holding that where the language of the Constitution requires that a proposed amendment shall be “entered on the journals,” this language means that it must be entered m extenso and not merely by reference to title, or otherwise, and that an omission to strictly comply with the provision invalidates the proposal. Koehler v. Hill, 60 Ia. 543; Bailey v. Brookhart, 113 Ia. 250; People v. Loomis, 135 Mich. 556; Durfree v. Harper, 22 Mont. 354; In re Senate File, 24 Neb. 864. It is thus seen that the two conflicting rules of interpretation are supported by respectable authority, and we feel at liberty to adopt that line of authority which is consistent with our own conception of the better reasoning on the subject, and that which appears to us to have been the intention of the framers of this provision of our 'Constitution, when read and considered in connection with other provisions thereof.

The decision of the Supreme Court of Kansas in the Prohibitory Amendment Cases, supra, is generally cited as the chief exponent of the doctrine that a mere identifying reference on the .journals of the General Assembly is sufficient to satisfy the requirement that the proposed amendment must be “entered on the journals.” The opinion in that case was written by Judge Brewer and for that reason, if for no other, commands the utmost respect. The opinion, however, is much weakened by the fact that it is out of line with the almost unanimous authority in holding that a provision of this kind is mot mandatory but merely directory. In fact, it was not decided, in that case by the distinguished jurist that the words, “shall be entered on the journal,” meant that a mere identifying reference to the amendment could be entered on the journal and was sufficient compliance with that language, but he held that the requirement was merely directory, and that the will of the people as expressed at the ballot box could not be overthrown by a failure on the part of the Legislature or of its agents to enter the proposed amendment on the journals. He propounds the inquiry, “Is the failure to enter this amendment at length on the journals fatal?” and answers it by stating that the “two important, vital elements in any constitutional amendment are, the assent of two-thirds of the Legislature, and a majority of -the popular vote,” and that a failure to comply with the provision with reference to making the proper record of the legislative proceeding does not defeat the amendment, which has in fact been proposed by two-thirds of the General Assembly and adopted by the votes of a majority of the people. Notwithstanding the learning and ability of that great jurist who wrote that opinion, it is so far out of line with all of the other adjudged cases on the question upon Akhich the decision rests, that we must discard it as a controlling authority in interpreting the meaning of the language of our Constitution.

The Supreme Court of Wisconsin in, the case of Postel v. Marcus, supra, first decided that the requirement for entering, a proposed amendment on the journal of each house meant that it should be entered in extenso, and. not merely by reference to title or otherwise. The opinion was written by Judge Marshall, but on rehearing the decision was changed, and it was held that an identifying reference on the journals was sufficient. It appears that the original decision of the court resulted in invalidating about twenty-five important constitutional amendments reaching back for many years, and that this fact had its influence on the court in changing the opinion. We feel at liberty in thus commenting on the decision from the fact that this situation in which the court found itself is fully disclosed in the opinions on rehearing, not only that of the Chief Justice, who wrote the additional opinion, but also the dissenting opinion of Judge Marshall and the concurring opinion of another of the justices.

It Avill be observed that the case of Koehler v. Hill, 60 Iowa 543, and the case of Worman v. Hagen, supra, which are conflicting on this question, were both reviewed by this court in Rice v. Palmer, supra, and the doctrine of the Maryland case was condemned and the doctrine of the Iowa case approved. It is true the discussion arose over another point, but it related to the question of the adoption of constitutional amendments, and the opinion of our court in Rice v. Palmer shows that the attitude of the Maryland court on that subject did not meet with the approval of this court. The language in the Constitution of the State of Iowa with respect to amendments is- almost identical with our Constitution as to the' proAdsion requiring the entry of proposed amendments on the journals of the General Assembly. The Supreme Court of that State in Koehler v. Hill, supra, said:

“The evident intent of the Constitution is that the proposed amendment should- be entered at length on the journal, or, at least, so entered as to leave no reasonable doubt as to its provisions. This must be so, or the entering of the yeas and nays can be as readily dispensed with as entering the resolution, and yet this is the constitutional mode of ascertaining whether a majority of the members elected to each house agreed to the amendment. * * * It seems to us that a simple entering on the journal of the title or object of a proposed amendment does not accomplish the intent of the Constitution, and the thought that this must be so is much strengthened when regard is had to all the provisions of the Constitution. That instrument provides that upon the final passage of a bill the yeas and nays must be taken, and the same entered upon the journal. This necessitates the entering on the journal of the title or substance of the bill to be voted upon. This being so, if no more than this was intended in relation to. a constitutional amendment, the provision as to entering it on the journal is unnecessary and meaningless. There is no provision requiring a bill to be entered on the journal, but the Constitution does require that a proposed amendment thereto ‘shall be entered’ on the journals ‘with the yeas and nays.’ This must mean that the amendment shall be spread at length thereon, and the yeas and nays set out in the journal in full or at length. No distinction between the two can possibly be drawn.”

The reasoning of the court in that case precisely fits the present situation under our own Constitution. The Constitution of 1874 (art. 5, § 12) provides: “* * * Each house shall keep a journal of its proceedings,'and from time to time publish the same, except such parts as reauire secrecy; and the yeas and nays on any question shall, at the desire of any five members, be entered on the journals.” The only requirements in the-Constitution with respect to what shall be entered on the journals is the one under consideration with reference to amendments, and the one in § 22, art. 5, that “no bill shall become a law unless on its final passage the vote be taken by yeas and nays, the names of the persons voting for and against the same be entered on the journal, and a majority of each house be recorded thereon as voting in its favor;” and the one in § 15, art. 6, that, in case the Governor vetoes a bill, “he shall return it, with his objections, to the house in which it 'Originated, -which house shall enter the objections at large upon their journal and proceed to reconsider it.”

It was necessarily assumed by the framers of the Constitution that, so far as concerned the enactment of statutes, the journals should contain some reference to the passage of bills through the two houses so as to identify them and show the course of the proceedings— this without any special requirement to that effect. If the framers of the Constitution had intended that nothing more than that was to be required concerning amendments to the Constitution, it .would have been unnecessary to put in the additional requirement that amendments shall be “entered on the journals.” It will also be observed that the requirement of the Constitution is not merely that the proceeding in regard to proposed amendments shall be entered on the journals — not merely a history of the passage of the proposal through the houses be entered — but it provides that the amendment itself shall be entered on the records. The precise language is that “such proposed amendments shall be entered on the .journals with the yeas and nays.?’ It is our duty to give some meaning to the language of the Constitution, and not to presume that this provision was put in merely as a well-rounded phrase. As said by the Iowa court in Koehler v. Hill, there is as much reason to hold that it was not necessary to enter the yeas and nays at large on the record as it was to hold that it was unnecessary to enter the amendment at large.

We have decided that the provision in § 22, art. 5, requiring the yeas and nays to be entered on the journal on the final passage of a bill is mandatory, and that the omission renders an enactment void. Smithee v. Garth, 33 Ark. 17: State v. Bowman, 90 Ark. 174; Butler v. Board of Directors, 103 Ark. 109. Our conclusion is that the proposal of an amendment to the Constitution is void unless the amendment is entered in extenso on the journals of each of the two houses of the General Assembly, and that a mere identifying reference by title or otherwise is insufficient. We do not mean to hold that it is essential to the validity of a constitutional amendment that the entire proposal as it may be affected by amendments adding or subtracting language in the course of its progress through the two houses must be spread upon .the journal of either house at the same place or at the same time. Different parts of the journals of the respective houses may, if connected up so that the whole of the amendment as finally adopted by both houses, appears upon the journal of each house, he treated as sufficient to make a complete record; hut we do 'hold that where any substantial part of the amendment is omitted entirely from the journal of either one of the houses, even though it appears on the journal of the other house, it renders the proposal invalid. By way of illustration, we might take the journal of the House in this instance, which shows the original resolution as introduced in the Senate was spread at large upon the journal, and there were certain amendments which were also separately spread on the journal. Now, if the House had adopted the amendment by a yea and nay vote spread on the record without actually re-entering the amended resolution, that would have been sufficient, because the original Senate resolution and the House amendment are connected together, so that it is in effect a complete entry of the whole amendment as adopted by the House. But when we come to the Senate journal, we find nothing there but the entrv of the original resolution. If the journal of the Senate had contained a recital of the House amendments and a corrected copy of the same was entered on the journal, an adoption of the amendment would have shown the whole of the resolution that the Senate adopted, and it would have been unnecessary to re-enter the original resolution as amended. The two entries, in other words, would have been sufficient; but, as the journal entry now stands, there is no disclosure whatever on the Senate journal of the House amendment, therefore the Constitution has not been complied with. Nor do we mean to say that a compliance with this provision must be absolutely literal. On the contrary, we say that the omission of an immaterial portion of an amendment — one not affecting its meaning or interpretation — would not affect its validity. It is only a substantial omission from the record which is fatal, and not merely immaterial words which do not affect the real meaning of the proposal. It is easily seen that the House amendments are substantial, and that the omission of them from the journal is an important departure from the text of the proposal as amended by the house.

There is one portion of Judge Brewer’s opinion in the Kansas case, supra, in which we heartily concur, and it is this: “But questions of policy are not questions for 'the courts. They are wrought out and fought out in the Legislature and before the people. Here the single question is- one of power. We make no laws; we change no constitutions; we inaugurate no policy. When the Legislature enacts a law, the only question we can decide is, whether the limitations of the Constitution have been infringed upon. When a constitutional amendment has been sulbmitted, the single inquiry for us is, whether it has received the sanction of popular approval in the manner prescribed by the fundamental law. So that, whatever may be the individual opinions of the justices of this court as to the wisdom or folly of any law or constitutional amendment, and notwithstanding the right which as individual citizens we may exercise with all other citizens in expressing through the ballot box our personal approval or disapproval of proposed constitutional changes, as a court, our single inquiry is, have constitutional requirements been observed, and limits of power been regarded? We have no veto. The judge who casts his individual opinions of wisdom or policy into the decision of questions of constitutional limitations and powers, simply usurps a prerogative never committed to him in the wise distribution of duties made by the people in their fundamental law.”

This ends our discussion of the question of the validity of proposed amendment No. 12, and we hold that it is void on account of the failure of the General Assembly to enter the proposal in accordance with the express mandate of the Constitution. It is unnecessary to discuss the questions raised in the case as to what the effect of the amendment would have been .with respect to being self-executing as a limitation upon the action of the Legislature and with respect to what constitutes local legislation within its meaning.

There is, however, another question in the case which calls for discussion. It is contended that the statute under consideration is void for the reason that it authorizes a wrongful diversion of funds of an improvement district.

Road Improvement District No. 2 of Craighead County was created by a statute enacted by the General Assembly of 1919 (Road Acts 1919, vol. 1, p. 174) for the purpose of improving a public highway running from the city of Jonesboro to the line between Craighead and Lawrence counties. There was authority in the statute also to improve a lateral road which connected with the main line. The main line of the improved road crossed Cache River, and at the time of the formation of the original plans there was a bridge across the river, which it was thought would last for some vears, and plans omitted re-construction of a bridge. The road was constructed without a new ¡bridue, and assessments were levied and bonds issued. It now becomes necessary to build a bridge across Cache River, and the General Assembly of 1925 enacted the special statute now under consideration authorizing the construction of a bridge across Cache River at a cost of not exceeding $20,000, and providing that the board of commissioners of the road improvement district could use the sum of $4,500 of the funds of the district in the construction of the bridge, the remaining portion of the cost to be paid out of federal aid and out of State aid funds to be distributed by the State Highway Commission. The statute provides that the plans for the improvement must be approved by the county court, and the work of constructing the bridge “may be done directly through the joint action of the county court and board of commissioners of said district and the State Highway Department by purchasing material and employing labor, or they may at their option let a contract to a contractor to construct said bridge.” It is shown that this contribution from the funds by the district can be made without an additional assessment on the lands and without diversion of funds needed to pay off the bonds of the district. The contention of counsel for appellees is that the contribution of funds authorized by this statute would operate as a diversion or misappropriation of funds in violation of that provision of the Constitution (art. 16, § 11) that “no moneys arising from a tax levied for one purpose shall be used for any other purpose.” Counsel rely on the decision of this court in Paving District No. 5 of Fort Smith v. Fernandez, 142 Ark. 21. That case, we think, has no application to the case now before us, for it involved the legislative authority to reappropriate funds of a municipal improvement district, and the basis of our decision in that case was that the consent by the owners of property to the construction of the original improvement being necessary under the Constitution (art. 19, § 27), funds arising from taxes levied on benefits could not be used for any other purpose without the consent of the owners of the property. Upon the same principle we decided in the case of Bauer v. North Arkansas Highway Improvement District, ante p. 220, that property owners in a local improvement district liad an interest in the funds of the district, and. that it was an impairment of their vested rights for the Legislature to enact a law to divert the funds to uses other than for the benefit of the owners; Neither of those cases has any bearing on the present controversy, unless it be held that the bridge soug’ht to be constructed is an independent improvement. Cache River is a small, nonnaviga'ble stream, at that place, and we do not think that it can be treated as an improvement which is necessarily one independent of the road district. This statute constitutes a legislative 'determination that the particular bridge is not an independent project, 'but is a part of the construction of the road. We are not at liberty to set aside the legislative finding unless it appears to be demonstrably arbitrary and unwarranted. Bennett v. Johnson, 130 Ark. 507. We have held in former decisions that the Legislature cannot join to a road improvement district, as part of the same unit, the construction of a bridge which necessarily constitutes a separate project, but that it is within the power of the Legislature to authorize the construction of bridges which are merely incidental to the improvement of a road. Mack v. Paragould-Hopkins Bridge Road Imp. Dist., 168 Ark. 867; Van Dyke v. Mack, 139 Ark. 524; Bullock v. Dermott-Collins Road Imp. Dist., 155 Ark. 176; Wimberly v. Road Imp. Dist., 161 Ark. 161. If the Legislature had in the beginning found that the construction of a bridge was part of the same project of improving the highway and authorized the road improvement district to construct the bridge, it was still within the power of the Legislature, even though the road itself had been completed, to join to it the improvement which could have been included in the beginning, and to do so does not constitute a diversion of funds. In other words, the addition of this improvement is, in effect, the same as if it had been included in the beginning, and the use of funds arising from taxes levied on the benefits to real property does not constitute an impairment of vested rights or a diversion of funds of property owners to uses other than for their own benefit. Section 11, art. 16, of t'he Constitution, providing that “no moneys arising from a tax levied for one purpose shall be used for any other purpose,” has no application to the statute now- under consideration, as that provision applies only to general taxation and not to local assessments.

It follows from the views we have expressed that the statute under consideration is valid; so the decree is reversed, and the cause is remanded with directions to dismiss the complaint for want of equity.

Wood and Humphreys, JJ., dissent.


source: Caselaw Access Project

author: McCulloch, C. J.

license: Public Domain

text:
    Landers v. Murphy.
    Opinion delivered June 29, 1925.
    Constitutional law — impairment op obligation op contract.— Acts 1925, No. 73, creating the office of county supervisor, held not void as impairing the obligation of the contract of the county superintendent with the county board of education, under Acts 1919, p. 177, and Acts 1921 p. 532, whether his position as superintendent was a public office, which the Legislature could abolish or one of employment, since the obligation thereof would not be impaired by creating a new office or employment.
    Appeal from Poinsett Chancery Court; J. M. Futrell, Chancellor;
    reversed.

      M. P. Watkins and Gautney £ Dudley, for appellant.

      T. T. Mardis, J. Brmkerhoff and L. A. McLin, for appellee.
   McCulloch, C. J.

Appellee is county superintendent of schools in Poinsett County, under selection and contract pursuant to the statutes of the State providing for the management and control of public schools. Act No. 234,1919, p. 177; Act No. 503, 1921, p. 532. He instituted this action against the election officials of Poinsett County to enjoin them from proceeding to hold an election for the office of county supervisor, created by a statute enacted by the General Assembly of 1925. Act No. 73 of the session of 1925, approved Feb. 14, 1925. The period of appellee’s contract has not expired, and his contention is that the statute is void, first, because it is in conflict with amendment No. 12 prohibiting the Legislature from enacting local legislation; and second, on the ground that it impairs the obligation of his contract with the County Board of Education.

There is a controversy between the parties as to whether or not the statute assailed in the case is a local statute within the meaning of amendment No. 12, but we have decided today, in the case of McAdams v. Henley, ante p. 97, that amendment No. 12 was not leg'ally adopted, hence all questions affecting the validity of the present statute, so far as- it is controlled by amendment No. 12, are eliminated from the case. We have, therefore, only to deal with the other questions — whether or not the statute is void for the reason that it impairs the obligation of a contract, and whether the election of appellee to the position of county superintendent under general statutes constitutes him a public officer or merely an employee under contract.

The statute cannot be held to be invalid, for, if the position held by appellee was a public office, the Legislature could abolish it, and, if it was a contract of employment, the obligation thereof was not impaired by creating a new office or employment. Caldwell v. Donaghey, 108 Ark. 60; Morgan Construction Co. v. Pitts, 154 Ark. 420; Hayes v. Port of Seattle, 251 U. S. 233. In any event, appellee’s remedies, if any, for breach of contract are not impaired by the enactment of this statute.

The decree is therefore reversed with directions to dismiss the complaint.

Wood and Humphreys, JJ., dissent.


author: McCulloch, C- J.

text:
    Mahan v. Wilson.
    Opinion delivered June 29, 1925.
    1. Courts — jurisdiction—county having two districts. — Under Acts 1919, No. 468, creating the Chickasawba District of Mississippi County, which confers upon the courts of that district jurisdiction over persons and property resident and being therein “the same and in like manner as if said district was a constitutional county,” held that the jurisdiction of the courts in the Chickasawba District extends exclusively over lands situated wholly within the district and over .parties of a controversy all of whom reside in the district; all other jurisdiction remaining in the Osceola District of Mississippi 'County.
    2. Drains — jurisdiction to create district. — The jurisdiction of the county court of the Osceola District of Mississippi County to hear and determine a petition for the organization of a drainage district under Acts 1901, No. 81, was not taken away by Acts 1919, No. 468, though part of the affected area was situated in the Chickasawba District.
    3. Drains — sufficiency of petition. — Under Crawford & Moses’ Dig., § 3608, where a petition for the creation of a drainage district or subdistrict is signed by a majority of the property owners, the county court, without a finding as to their interests in such property, may make an order creating the district.
    4. Drains — notice of hearing of petition. — Under § 3607, Crawford & Moses’ Dig., § 3607, requiring the county clerk to give notice by publication to all persons owning property within a drainage district to appear before the court to show cause for or ■against the establishment of the district, it is implied that a description of the property to be embraced shall be contained in such notice.
    5. Drains — proof of publication of the notice of hearing.— Crawford & Moses’ Dig, §., 6807, does not make the affidavit of the editor, proprietor, manager or chief accountant of a newspaper the sole or exclusive evidence of the publication of the notice of the hearing of a petition to organize a drainage sub-district.
    6. Drains — description in published notice.- — The published notice of the hearing of a petition to organize a drainage sub-district should follow -the description of the property of the district as found in the report of the commissioners, which is the basis of the court’s action in determining whether the district should be created.
    7. Appeal and error — presumption from silence of record.— Where the transcript on appeal from an order. creating a drainage subdistrict fails to include a map referred to in the report of the commissioners, it will be presumed on appeal that the trial court found that there was no discrepancy between the published notice and the commissioners’ report in describing the territory embraced in the subdistrict.
    8. Drains — right of signers to withdraw from petition. — After a petition for organization of a drainage subdistrict has been filed, signers thereof cannot withdraw their names, except for cause.
    9. Drains — effect of filing petition. — The filing of a petition for establishment of a drainage district or subdistrict is in the mature of an election, and, if the requirements of the statute are complied with, and the petition contains the names of a majority of the landowners, either in number, acreage or value, the statute makes it the duty of the court to create the district.
    10. Drains — contest—burden of proof. — The burden of proof is on those who contest a petition of property owners for organization of a drainage subdistriot to show that names appearing thereon were not signed by authority.
    11. Drains — conditional signatures. — Where a group of persons signing a petition for the organization of a drainage subdistrict did so on condition that their names were to be withheld unless a certain commissioner should resign, and their names were left on the petition though the commissioner did not resign, such signatures are valid where they did not appear and ask that their names be withdrawn.
    12. Drains — ratification to signature to petition. — Where proceedings for the organization of a drainage subdistrict were still in progress in the circuit court, it was not too late for a corporation whose signature was challenged to ratify its signature.
    13. Drains — omission of benefited lands. — The fact that lands in two adjacent drainage subdistricts, which will be benefited by the organization of the subdistrict in question, were omitted therefrom does not invalidate the latter subdistrict, since the former subdistricts may be required to pay for such benefits.
    14. Drains — size of subdistrict. — That a drainage subdistrict in area comprises nearly the whole of the original1 drainage district, and the cost of the contemplated improvement is greater in extent than that of the original district does not render it invalid; there being no limitation on the size or cost of the subdistrict in Crawford & Moses’ Dig., § 3650.
    Appeal from Mississippi Circuit Court, Osceola District; W. W. Bandy, Judge;
    affirmed.

      S.am Gosten and Little, Buck ■& Lasley, for appellant.

      J. T. Cost on, for appellee.
   McCulloch, C- J.

Grassy Lake & Tyronza Drainage District No. 9 of Mississippi County, created by an order of the county court in May, 1911, pursuant to the general statutes (Crawford & Moses’ Digest, § 3607 et seq.), providing for what is commonly termed the “alternative system of drainage districts,” covers territory in Mississippi County about forty miles long, of an average width of about seven miles, and it reaches from the northeast corner of the county to within a few miles of the southwest corner. The principal ditches of the district begin at the foot of Clear Creek, a few miles southeast of Blytheville, and follow the general •course of the Tyronza Basin, which runs from the northeast to the southwest, parallel with Little River. Since the completion of. the ditches in the district according to the plans of the improvement, numerous owners of real property within the boundaries of the district filed their petition in the county court of Mississippi County praying for the formation of a subdistrict, to be composed of certain lands wholly within the original district, for the purpose of adding additional improvements in the way of new ditches and widening and extending the main ditch as an outlet. The petition filed with the county court gave a description of the lands sought to be embraced in the subdistrict, and the county court entered an order directing the commissioners of District No. 9 to “cause a survey to be made to ascertain the limits of the region which would be benefited by the proposed .system of improvement.” The commissioners of the original district complied with the order of the county court by employing an engineer and causing a survey to be made, and the commissioners made a report, accompanied by a map, showing plans for the additional improvement and a description of the area which would be benefited thereby. This report was filed with the county court on December 1, 1924, and the court ordered publication of notice and set the date for hearing on December 23, 1924. Un November 15, 1924, there was filed with the county court a petition of owners of property in the proposed subdistrict, claiming to be a majority thereof in acreage, and praying for an order of the county court creating the subdistrict. Certain other owners of real property in the district filed a remonstrance, and there was a hearing by the court on the day set for the hearing (December 23, 1924), and the court granted the prayer of the petitioners and created the proposed subdistrict, to be designated as Subdistrict No. 3 of Grassy Lake and Tyronza Drainage District No. 9 of Mississippi County. The remonstrants prayed an appeal to the circuit court of Mississippi County, where there was a hearing on January 17, 1925, which resulted in a judgment of the circuit court affirming the order of the county court creating .the sub-district in accordance with the prayer of the petition therefor, and an appeal has been duly prosecuted to this court.

There are two court districts in Mississippi County, where terms of all the courts — circuit, chancery, county and probate — are held. One of the districts is designated as-the Osceola District, wherein the courts are held at Osceola, the -county seat, and the other district is designated as the Chickasawba District, and the courts are held at Blytheville.

The act originally creating the court district was enacted in the year 1901 (Acts 1901, p. 136) and merely provided for the holding of circuit, chancery and probate courts in Chickasawba District, but a statute enacted in 1919 (Act No. 468), amending the original statute, provided for holding sessions of the county court in Chickasawba District, and this statute reads as follows:

“That all matters of -county and probate jurisdiction pertaining to that part of Mississippi County within the Chickasawba District and to persons and property resident and being therein shall be subject to the jurisdiction and examination of the countv and probate court of the County of Mississippi for the Chickasawba District, the same and in like manner as if said district was a constitutional county of the State of Arkansas.”

The area covered by the subdistrict which was organized by order of the county court lies partly in the Osceola District and partly in the Blytheville District, and these proceedings for the formation of the subdistrict were instituted and progressed to final judgment in the county court sitting at Osceola.

The first contention of counsel for appellants in their assault upon the validity of the organization is that the county court was without jurisdiction for the reason that a part of the lands involved are situated in the Chickasawba District. Counsel rely on the language of the statute quoted above conferring jurisdiction of the county court within the Chickasawba District over “persons and property resident and being therein,” and also that part of the statute which declares that the Chickasawba District shall exercise jurisdiction “the same and in like manner as if said district was a constitutional county.” This contention is, we think, unsound. In the recent case of Bonner v. Jackson, 158 Ark. 526, we held that the statute providing for separate terms of the county court in each of the court districts of the county did not destroy the constitutional unity of the county and was valid. The partition and allotment to the respective county courts to be held in the two districts, of the constitutional jurisdiction of the county court over the local concerns of the county is purely Statutory and does not, as we held in the case cited above, in anywise offend against the Constitution. It must be assumed that the framers of tire statute did not attempt either to take away from the county court any of its constitutional jurisdiction over its local concerns, and confer it upon the circuit court, nor that there was any intention to entirely exclude the exercise of jurisdiction by one or the other of the county courts authorized to sit in the county, merely because the subject-matter of the exercise of jurisdiction was situated partly in one of the court districts and partly in the other. It is our duty to give the statute a reasonable interpretation, so as to confine its operation within constitutional limits, and in approaching the interpretation in that .spirit it is evident that the language of the statute (means that the jurisdiction of the courts in the Ohickasawba District entends exclusively over lands situated wholly within the district and over persons to a controversy all of whom reside in the district. All other jurisdiction remains in Osceola court. This view is in entire accord with prior decisions of our court (Pryor v. Murphy, 80 Ark. 150; Murrell v. Exchange Bank, 168 Ark. 465, and we therefore hold that the jurisdiction of the Osceola District was not defeated because part of the area involved was situated in the Ohickasawba District.

It is next contended that the creation of the sub-district was erroneous for the reason that there was no proof of the publication of the notice required by statute, and that the notice was insufficient in that it failed to give a description of all of the property to be affected by the organization of thé district, and omitted some of the lands described in the .original petition. Subdistricts are authorized by statute to be organized and added to original districts on petition of “three or more owners of real property within a proposed subdistrict, composed of land wholly within a drainage district, or partly within and partly without such district.” Crawford & Moses’ Digest, § 3650.

Under the statute the organization of original districts and of subdistricts is made in the same manner and by the same procedure, which is, in brief, as follows : When three or more owners of property file a petition with the county court asking for the organization of a district or subdistrict, the petition “describing generally the region which it is intended shall be embraced,” the county court enters an order appointing an engineer to make a survey or requiring, in the case of subdistricts, the commissioners of the original district to cause a survey to be made. A bond to pay the expenses is required of tlie petitioners. The statute provides that the engineer “shall forthwith proceed to make a survey and ascertain the limits of the region which would be benefited by the proposed system of drainage; and such engineer shall file with the county clerk a report showing the territory which will be benefited by the proposed improvement, and giving a general idea of its character and expense, and making such suggestions as to the size of the drainage ditches and their location as he may deem advisable.” Crawford & Moses’ Digest, § 3607. The section with reference to subdistricts provides that the commissioners shall “forthwith proceed to cause a survey to be made and to ascertain the limits of the region which would be benefited by the proposed system of improvements, and the commissioners shall cause a survey to be made, and shall file with the county clerk a report showing the territory which will be benefited by the proposed improvement, and giving a general idea of its character and expense and making .such suggestions ,-as to the size of the drainage ditches and their location as the commissioners may deem advisable, and shall file their report with the county clerk.” Crawford & Moses’ Digest, § 3650.

It is further provided in the statute with reference to both original districts and subdistricts that upon the filing of the report the county clerk shall give notice by publication in weekly newspapers of the hearing before the county court. It is then provided that on the day of the hearing if it is found to be to the best interests of the owners of real property in the district that the same shall become a drainage district, or a subdistrict, as the case .may be, the court shall make an order establishing the district or subdistrict. If a petition or petitions lie presented to the county court, signed by a majority “either in numbers or in acreage or in value of the holders of real property within the proposed district, waving that the improvements be made, it shall be the duty of the county .court to make the order establishing the district without further inquiry.” It is thus seen that the county court is empowered, upon the original petition of three or more property owners, to create a drainage district or subdistrict, if it is found to be “to the best interests of the owners of real property within said district that the same shall become a drainage district,” and that, if there is a petition by a majority of the property owners, then it is the duty of the court, without any finding as to the interests of the parties, to make an order creating the district. Jones v. Fletcher, 132 Ark. 328. It is further seen that the statute does not expressly provide that the published notice shall contain a description of the property to be embraced in the district, but, if the notice is to be made effectual, it is necessarily implied that, in order to apprise the property owners of the proceedings affecting their interests, the description of the property should be contained in the notice. The sufficiency of proof of publication is challenged on the ground that there was no affidavit filed by the “editor, proprietor, manager or chief accountant,” as provided by statute. Crawford & Moses’ Digest, § 6808. The answer to this contention is that the statute does not make the affidavit the sole or exclusive evidence of publication. Whitford v. Whitford, 100 Ark. 63; Allen v. Allen, 126 Ark. 164. There was other evidence legally sufficient to establish the fact that the publication of notice had in fact been made in the manner prescribed by statute. It is also contended that the notice was insufficient because the description of the property did not coincide with the' description in the original petition in that certain tracts contained in the original petition were omitted. We assume that counsel in their argument are referring, not to the initial petition of three or more property owners, but to the last petition which was filed and which prayed for the formation of the district in accordance with the report of the engineers. Indulging the presumption that the lawmakers intended to require a •description of the property in the notice, it necessarily follows that description should be in accordance with the report of the engineers in the case of an original district, or with the report of the commissioners in the case of the creation of a subdistrict, for the report is the thing which forms the basis of the court’s action in determining whether or not the district or subdistrict should be created. Crawford & Moses’Digest, § 3650. Counsel fail to satisfactorily make it appear to us from the record that there is a variance between the description in the notice and that contained in the report of the commissioners. They refer to a map in the record, but the map to which they refer has not been made a part of the report, but was merely introduced in evidence, and we do not discover any discrepancy between the description in the notice, and that in the map which was filed with the report. These maps were before the trial court, who examined them and heard the evidence with reference thereto, and we do not feel at liberty to disturb the finding of the trial court that there is no discrepancy in the notice and the report. We must indulge the presumption that the court found that there was no such discrepancy.

The next assault upon the correctness of the judgment is that the petition praying for the creation of the district did not contain a majority in acreage of the owners of property. This general charge -of insufficient of the petition embraces in detail the contention that many of the names of persons and corporations were signed without authority, and that many of those who originally signed the petition should have been accorded the privilege of withdrawing their names before the petition was acted on and before the order creating the district was made by the county court. The district as created by the county court contained 171,680.07 acres, and it was therefore necessary in order to constitute a majority that the petition should be signed by the owners of land in excess of 85,840.04 acres. There were many of the petitions grouped together and filed, and all of them contained the names of individual and corporation owners of land of the aggregate acreage of 95,543.04, which constituted a majority of 7703 acres. After the petition was filed, but before the hearing by the county court, persons owning land of the aggregate acreage of 5386 acres filed a remonstrance asking that their names he withdrawn from the petition. It was a bare request for withdrawal without stating any grounds. Subsequently four of the same persons, owning 1070 acres, resigned the original petition and the court refused to allow any of the parties to withdraw their names after the petition was filed. It is contended that this was error. We decided in the recent case of O’Brien v. Root, 167 Ark. 119, which involved petitions for the formation of a stock district, that signers could not withdraw their names, except for cause, after the filing of the petition. This was in accord with our prior decisions holding to the same effect with reference to petitions under the prohibition law. Bordwell v. Dills, 70 Ark. 175; Colvin v. Finch, 75 Ark. 154. Counsel argue that these cases have no application for the reason that under the statutes involved in those decisions the jurisdiction of the court depended upon the filing of petitions, whereas in the present case the jurisdiction does not so depend. We are of the opinion that this is not a sound distinction, for the jurisdiction or authority of the court to create the district without finding it to be to the best interests of the parties depends upon the petition of a majority of landowners, and the same reasons which required a prohibition petition or a petition for the creation of a stock law, apply to the drainage statute, which provides for a petition of a majority of the property owners. The filing of a petition is in the nature of an election, and, if the requirements of the statute are complied with, and the petition is found to contain the names of a majority of landowners, either in numbers or in acreage or in value, the statute makes it the duty of the court to create the district. Jones v. Fletcher, supra. There is no attempt to show in the present case any grounds for permitting the withdrawal of names for canse. The-authenticity of the names on the petition was challenged in many instances, and it is contended that the burden of proof rested upon those who presented the petition. We have held to the contrary, and said that the burden of proof is upon those who contest the petition of property owners to show that the names appearing thereon Were not signed by authority. Board of Improvement v. Offenhauser, 84 Ark. 257; Malvern v. Nunn, 127 Ark. 418; Walton v. Light Improvement District, 144 Ark. 249; Lewis v. Forrest City Special Imp. Dist., 156 Ark. 356. It is argued that, as those decisions related to municipal improvement districts in suits questioning the validity of the signatures after they had been accepted by the city council, the question of their authenticity was not raised in an original proceeding such as the present one. Counsel mistake the effect of those decisions, for they were rendered in chancery cases, which, under the statute,- constituted an original review and a direct proceeding challenging the sufficiency of the petition for the improvement. We see no reason why the same rule should not apply in a case like the present one. The signatures are presented with apparent authority, and, if they are questioned, the burden of proof rests upon the person challenging the authority. The petitioners are in the attitude of being represented in court by those who present the petition to the court, and if there is any lack of authority it should be shown by those persons who contest it. This rule applies to signatures of corporations as well as individuals, if the signatures are made by those who have the apparent authority under the laws of the State to sigh for the corporation. Lewis v. Forrest City Special Imp. Dist., supra.

There is the name of one corporation on the petition, the Chicago Mill & Lumber Company, which signed for about 4000 acres of land, and the signature does not appear to have been made by one in authority, but that name may be eliminated, and the whole acreage represented as owned by that corporation may be deducted without reducing the amount of acreage on the petition below a majority.

Proof was offered to the effect that a group of persons who signed the petition held a meeting and gave written directions to Mr. Wilson, one of the parties who circulated the petition, to withhold their names unless the commissioners of the main district should resign. The commissioners did riot resign, and the names were not withdrawn, but Wilson testified that he was instructed to file the petition. ¡But, even if this were not true, it does not appear that any of the individuals of the group who imposed this condition ever appeared in court and asked that their names be withdrawn. If they had appeared and shown that their names were fraudulently left on the petition in disregard of their instructions, it would have afforded sufficient cause to permit the names to he withdrawn. These persons made no objections to the signatures, and are apparently in accord with the others who approved the project of forming the subdistrict.

There is also involved the question of ratification of-the signature by one of the corporations after the caso reached the circuit court. Counsel for appellant contend that it was too late, and they rely upon the decision of this court in the case of Lewis v. Forrest City Special Imp. Dist., supra. That . case, however, involved a municipal improvement where the ratification occurred after the ordinance providing for the improvement had been enacted and published and after the proceedings had passed out of the hands of the city council, and we held that it was too late to ratify after the litigation arose. In the, present instance the proceedings were still in progress in the circuit court, and it was not too late for the challenged signature of the corporation to be ratified by the proper officers.

Our decision upon this branch of the case is that it was established that the petition was signed by a majority in acreage of the property in the district.

It is next contended that the judgment should not be sustained for the reason that the subdistrict as created omitted a large body of land which will be benefited by the improvement. It appears that, since the organization of the original District No. 9, two other districts have been organized covering a large area — one being District No. 12 and the other District No. 8. The waters in these districts are emptied into the principal carrying ditch of District No. 9, and it is shown that there is an agreement between District No. 9 and the two districts mentioned above that a price is to be paid for the right to flow the waters from those districts through the ditches of original District No. 9. The contention is that, as these two districts are contiguous to original District No. 9 and to the subdistrict created by this proceeding, the lands will be necessarily benefited and should have been added to the improvement or that the subdistrict should not have been created without the inclusion of those lands. In the case of Sanders v. Wilmans, 160 Ark. 133, we held that, under a certain special road act which created a district and provided for the annexation of benefited land by order of the county court, it was erroneous to annex land upon a showing that other lands not embraced in the annexation were benefited. The doctrine in that case does not, however, apply in the present case for the reason that, while there was a showing that the lands in Districts Nos. 8 and 12 will be benefited by the flow of water through the ditches of the original District No. 9, which are to be enlarged by this subdistrict, all of the benefits thus obtained are to be provided through the agency of those two organizations, and the right to flow the water through the ditches of District No. 9 is to be paid for. Notwithstanding the omission of these lands from the district, if the benefits are to be paid for through other agencies as before stated, assessments cannot be made by a contiguous district to cover the cost of the same improvement, but there is a statute which provides that if an adjoining district shall drain its waters into a ditch belonging to another district, the commissioners of the latter shall have authority to assess the benefits and levy taxes to pay for same. The fact that the lands in those two districts were omitted from this organization does not affect the validity of the organization. Those lands can be taxed for any additional benefit accruing by reason of the new improvement.

It is finally contended that the district is not really a subdistrict under the statute, and the argument is that this is so because the magnitude of the district in area and in cost of the improvement is out of proportion to the original district and the extent of the eld improvement. It is a fact that the area of the subdistrict comprises nearly the whole of the original district, land the cost of the improvement contemplated by the subdistrict is greater in extent and more expensive than that of the original district. The only limitation expressed in the statute with regard to a subdistrict is that it must be formed of lands “wholly within a drainage district or partly within or partly without such district. ’ ’ Crawford & Moses’ Digest, § 3650. It cannot be composed of lands wholly outside of the district. ' The statute says nothing about the extent of the area, the magnitude of the improvement or the cost thereof, but it is necessarily implied that the improvement contemplated by the sub-district must be such that it can be treated as part of the same unit as the improvement provided for in the original district and not an independent improvement. In other words, this branch of the case turns on the question of the unity of the two projects — the original improvement and the new addition thereto — rather than on the extent and magnitude of the new project in comparison with that of the original one. If there is such unity that the two projects could have been originally joined together as one improvement, then we see no reason why under the statute the last one cannot be joined as a subdistriet notwithstanding its magnitude and extent. The manifest purpose of the statute authorizing the creation of subdistricts was to permit owners of land situated wholly in the original district or partly in and partly out of the district which would have been benefited by the original improvement but which would receive additional benefit from an added improvement, to join the new improvement to the original as one project. On the other hand, if the new improvement is wholly independent, it cannot be joined to the original one merely because the lands in the proposed subdistrict are situated wholly within or partly within and partly without the original district.. Now, testing the project under investigation, we see no reason why it cannot be treated as a part of the original project because of its comparative magnitude. It is an additional drainage scheme which will furnish additional drainage by the enlargement and extension of the original plans. The statute does not authorize the changing of original plans by the original district itself after the completion of the improvement (Indian Bayou Drainage District v. Walt, 154 Ark. 335), but it. does authorize the organization of a subdistrict for that purpose. Of course, the same result may just as easily have been accomplished by providing for the creation of a new and independent district, rather than join it onto the old district, but the lawmakers have authorized the organization o.f such a district, and we have nothing to do with the policy which prompted this provision of the law. We can only take cognizance of it and enforce the provision when the facts justify.

We are unable to discover any grounds upon which we would be justified in holding that the organization of this district should be denied on any grounds recognized by the statute, either expressly or by fair implication. That being true, it remains only to say that the judgment must be affirmed, and it is so ordered.

Wood and Hart, JJ. dissent.


text:
    Penix v. Shaddox.
    Opinion delivered June 29, 1925.
    1. Elections — complaint in contest. — A complaint in an election contest •which alleges the names of persons as having voted because their names were not on the tax books as originally delivered to the collector by the elferk or on any supplementary tax book so delivered, though not following the language of Crawford & Moses’ Dig., § 3738, is not demurrable, though it would be open to a motion to- make more definite and certain.
    2. Pleading — indefiniteness.—Where the language of a complaint is sufficient by fair inference to constitute a cause of action, a demurrer should not be sustained, but the objecting party may interpose a motion to make the complaint more definite and certain.
    3. Elections — sufficiency of complaint. — A complaint in an election contest which charges in general terms that plaintiff received a majority of the legal votes, without specifying the number received by each candidate is imperfect.
    Appeal from Boone Circuit Court; J. M. Shinn, Judge;
    reversed.

      E. G. Mitchell, V. D. Willis and Geo. J.. Cru-mp, for appellant.

      J. L. Shouse and Woods & Greenhaw, for appellee.
   McCulloch, C. J.

Appellant and appellee were rival candidates at the general election in October, 1924, for the office of county and probate judge of Boone County. They were the nominees respectively of opposing political parties. Appellee was returned as having been elected, and appellant instituted this contest in the circuit court of Boone County. He alleged in his complaint that he had made demand upon the election commissioners for a recount of the ballot, but had been refused, and prayed for an order of the court requiring the commissioners to recount the ballots. The court granted the prayer, and there was a recount by the commissioners under order of the court, which developed that according to the ballots which had been oast appellant received a majority of 134 votes. Appellant also alleged in his complaint that there were 1198 illegal votes cast for appellee and a list of those illegal ballots was appended. The allegation with respect to these votes appears in the complaint as follows: ‘ That said voters procured poll tax receipts from the collector of Boone County, Arkansas, whose names were not on the original tax books as delivered to said collector by the clerk of the county court of Boone County, Arkansas, or on any supplemental tax book made and delivered to said collector by said clerk, and that the collection of the same therefor when said tax was not on said tax books or any supplement thereto was contrary to the law and a felony under the statutes of the State of Arkansas, and he therefore avers that a poll tax receipt procured in this way would not confer on the person so procuring it the right to vote on the same, and that the following illegal votes were cast for Bob Shaddox, and plaintiff states that after eliminating said illegal votes the plaintiff received a large majority of the votes cast at said election. That the names of such illegal votes cast against this plaintiff were as follows (here follows the list of 1198 names).”

The court sustained appellee’s demurrer to the above paragraph, and appellant declined to plead further, and the complaint was dismissed.

Appellant contends that the language of his complaint in the paragraph set forth above is sufficient to show that there were enough illegal votes cast for appellee to change the result of the election, in that there were 1198 votes cast by persons who had not paid poll taxes legally assessed against them. Counsel rely on the decision of this court in the recent case of Cain v. Carl-Lee, 168 Ark. 64, that persons whose names were added to the poll tax list by the collector without having been certified by the county clerk were not legial voters, and they contend that the language of the complaint is sufficient to bring this case within the control of that decision. On the other hand, it is contended by counsel for appellee that the language of the complaint is insufficient to show that the specified illegal voters were persons who had not been properly assessed and certified by the clerk. They contend that the statement in the complaint that said voters were persons “whose names were not on the original tax books as delivered to said collector by the clerk of the county court of Boone County, Arkausas, or on any supplemental tax book made and delivered to said collector by said clerk,” did not constitute a sufficient charge that thpse persons w'ere voters whose poll taxes were not assessed by the county clerk and certified to the collector as specified in the statute, which reads as follows:

“'Section 3738. At any time after the assessment lists have been delivered to the county clerk for the purpose of enabling him to prepare the tax books for the collector, any person whose name has for any cause been omitted from the said lists may have his name included in said list and placed upon the tax lists in the hands of the collector bv application to the .said clerk at any time before the Saturday next preceding the first Monday of Julv, when the collector is required to make his final settlement with the county court. If the said application shall be made after the tax books have been delivered to the collector, the clerk ' shall certify the said supplemental assessment, which he is hereby authorized to make, to the collector, and shall charge to said collector the amount of tax and penalties. so added. In addition to the sum assessed against any such applicant for poll tax, the clerk shall extend against him a penalty for failing to return his assessment to the assessor at the proper time, one dollar — twenty-five cents of which shall go to the clerk for his services, and seventy-five cents shall go into the fund for general countv expenses; and . if said application shall be made after the 10th of April the collector shall collect a penalty of twenty-five cents for a failure to pay the said poll tax at the time prescribed for making payment of taxes without penalty. Tn addition to the assessment of- poll tax in such cases, it is hereby made the duty of said clerk to assess any property held by said applicant, and which, for any reason, has been omitted from the tax books.” Crawford & Moses’ Digest.

It will be observed from reading the above statute that it provides that after the tax books have been delivered by the clerk to the collector a person whose name has been omitted may have it included by the clerk, and the clerk ‘£ shall certify the said supplemental assessment” to the collector. The language of the complaint is that the persons specified as having voted illegally were those whose names were not on the tax books as originally delivered to the collector by the clerk, £ 1 or on any supplemental tax book made and delivered to said collector by said clerk.” The language of the complaint does not follow the language of the statute, in that the statute refers, not to supplemental tax book, but to the certificate of a supplemental assessment. We are of the opinion, however, that it is fairly inferable from the language of the complaint that it was meant to charge that the names of the persons specified in the complaint did not appear either on the original tax books or on the supplemental assessment list certified by the clerk, and that the payment and collection of the poll tax was illegal within the meaning of our decision in Cain v. Carl-Lee, supra. It is an instance, we think, of an imperfect allegation, but it is a defect which should have been reached by a motion to make more definite and certain and not by demurrer. It is a familiar rule that where the language of a complaint is sufficient by fair inference to constitute a cause of action, a' demurrer -should not be sustained, but the objecting party may interpose a motion to make more definite and certain. Our conclusion is that the court erred in sustaining the demurrer.

The complaint merely charges in general terms that appellant received a majority of the. legal votes, without specifying the number of legal votes received by each candidate, and the complaint is imperfect in this respect, but the demurrer does not reach to that point, and the sufficiency of the complaint has not been challenged on that ground.

The judgment sustaining the demurrer on the ground mentioned above is therefore reversed, land the cause remanded with directions to overrule the demurrer, and for further proceedings not inconsistent with this opinion.


author: Wood, J.

text:
    Ozark Mutual Life Association v. Dillard.
    Opinion delivered June 29, 1925.
    1. Insurance — cancellation op policy — recovery op assessments. —Where a benefit certificate is cancelled for misstatement in the application as to the age of the insured, the assessments paid miay be recovered if the misstatement was made in good faith and without fraud.
    2. Evidence — hearsay.—In an action by a beneficiary to recover assessments paid on a cancelled benefit certificate, a written statement of insured as to her age, offered by the defendant on the issue whether her age was intentionally misrepresented in the application for the certificate was properly excluded as hearsay; insured not being a party nor representing the beneficiary as his agent in making the statement..
    S. Insurance — authority op agent. — An insurance company is not bound by statements made by an agent, unless he was authorized to- make them or they were within the scope of his authority.
    4. Principal and agent — apparent authority op agent. — Apparent authority in an agent is such authority as the principal knowingly permits the agent to assume or which he holds the agent out as possessing such authority as he appears to have by reason of the the authority which he has; such authority as a reasonably prudent person, using diligence and discretion, in view of the principal’s conduct, would naturally suppose the agent to possess.
    Appeal from Marion Circuit Court; J. M. Shinn; Judge;
    affirmed.

      Pipkm é Frederick, for 'appellant.

      J. H. Black, for appellee.
   Wood, J.

This is an action by the appellee against the appellant to recover assessments paid by the appellee on two policies or membership certificates issued by the appellant to Martha Baker, in which the appellee was named as beneficiary. The appellee alleged that he had paid in premiums on the policies the sum of $220, and that the appellant cancelled the policies after such premiums had been paid and when the policies were of the value of $1,000. '

The appellant’s principal defense was that the appellee forfeited his rights under the policies by the non-payment of the premiums and assessments as they were due according to the terms of the contract of insurance, and, further, that appellee had perpetrated a wilful fraud upon the appellant at the time of the application for the policies by stating that the assured, Martha Baker, was fifty-nine years old, whereas she was at the time more than sixty years of age, and therefore beyond the age limit of insurance fixed by the laws of the appellant company.

The appellee testified identifying the policies about which there is no dispute. He stated that he had kept the assessments paid on the policies until the appellant turned them down face to face. He had been paying the assessments for something like seven years. He had been paying on matured policies for four years. One Mr. Van Wagner came out to appellee’s place and did business with appellee’s son. He made a settlement with him and wrote him a check for $1,000. Van Wagner said that he had investigated witness’ policies and found that Mrs. Baker was older than she was listed. Witness remarked, “I reckon I will get my assessment money,” and Wagner said, “Yes, sir; you will get it as soon as I get back to Mena.” It was on that occasion that witness quit paying. Witness paid until he was turned down. He had never asked for an assessment that witness didn’t pay. The assessments witness had paid amounted to about $220.

On cross-examination witness ■ stated, among other things, that he was suing to recover the assessments, and not claiming under the policies at all. He further testified that he didn’t know what position Wagner held with the appellant. He had been over theie to settle with witness’ son on a policy, and wrote out his check for $1,000. His business over there was to settle up with /witness’ son, and Wagner probably came to see witness too. Witness had written the -company and asked if his half-sister were dead, and Wagner said he had looked her up and she wasn’t dead, but found that she was over age, and he would cancel the policies. Witness had not heard from her and thought she might be dead, and so had witness’ daughter to write to see if she was dead. After Wagner came over there, the conversation took place as before related by witness. Wagner said he was going to cancel the policies and would not receive any more premiums. Witness had paid every month from the time the policies were taken out up to the time the policies were canceled and had never paid any after that because Wagner said he would not receive it, and that he would send witness his assessments when he returned to the office. After Wagner left he. wrote back a letter to the witness telling him to keep quiet about it — that there was some fraud in it, and that witness had better keep quiet. If Wagner had not told witness that, witness would have been paying the assessments yet.

Roy Dillard testified that he was the son of the appellee and was present when Van Wagner came and made a settlement with the appellee on a claim. At that time Wagner made a settlement with the witness, and paid witness $1,000. Witness heard the conversation between Wagner and the appellee with reference to the insurance policies that appellee held. Over the objection of appellant, Wagner told the appellee that Martha Biaker was too old to carry policies, and appellee said he guessed he could g*et his money hack, and Wagner said, “Yes.” He told witness that he was an agent of the company. Witness didn’t know whether he was or not at the time, but found out that he was before Wagner left, as he made a settlement with witness for the company and gave witness a check for $1,000. In the conversation with witness’ father, the appellee, Wagner told the appellee that he could not make any more payments; that he would turn them down and told appellee to tell them to send his assessment money in and to do it right now. Wagner said that he would send the assessment money to appellee as soon as he got back to Mena. Witness further stated that the check given him by Wagner in settlement of witness’ claim against the company was paid. Two other witnesses testified for the appellee, and they corroborated substantially the testimony of the appellee and his son as to the conversation between appellee and Yan Wagner.

Yan Wagner testified as a witness for the appellant that he had been .in the employ of the appellant in its clerical department since 1917. He was sent out occasionally to settle policy losses if it became necessary. He went to the appellee’s place in 1922 to settle a loss with appellee’s son, Roy Dillard, who had a policy with the company. The president, vice-president and secretary of the company told witness that they wanted him to settle the loss with Roy, and they had been -getting several letters from the appellee with reference to Mrs. Martha Baker. The last letter stated that she was dead. They took it up and found Martha Baker -at Casa. Witness went -down to Gasa to find where Martha Baker was and found her at Cotton Plant. She was getting her mail as Mrs. Adams, and not as Mrs.. Baker, so while witness was over there he got to make a settlement and didn’t know that Roy Dillard lived with the appellee until he got there. When he got to appellee’s place, he asked for Boy Dilliiard, and the appellee came np and introduced -witness to Boy. Witness then told appellee that he had been by and had seen Mrs. Baker, that appellee had been writing to the company about. Witness told appellee that he had got a statement from Mrs. Baker, and that she was very much alive. Witness finally said to appellee that he didn’t come to see him, and had no business with him; that he had come to see Boy Dillard. Witness stated that he had no authority from the company to cancel the policies; that the company had not authorized the policies to be cancelled; that the board of directors only had that authority, and witness was not a member of that board.

The appellant offered to prove by this witness a statement furnished witness by Mrs. Martha Baker, written out and purporting to be duly signed by Martha Baker by her mark, dated September 8, 19'23, to the effect that she was a girl at least thirteen years old at the beginning of the civil war. The court refused to allow such statement to be read to the jury, to which ruling the appellant duly excepted. The witness denied that any such conversation took place between him and the appellee as testified to by appellee and his witnesses. Witness further testified on cross-examination that when he was in the office of appellant he wrote policies; that that was about all there was to do. He had nothing to do with taking in the money. That was the duty of the secretary. Witness was not an officer of the company, but was an employee and was acting in that capacity when he went up to settle with Boy Dillard. Witness didn’t answer the correspondence for the company. Witness was asked: “Do they take up settlements with you and confer with you about it?” He answered, “No, sir, they send me out with instructions and I do it.” Ques.: “They took up the Boy Dillard matter with you?” Ans.: “They took it up with him and then sent me to look after it.” Witness further testified that Boy Dillard had a claim against the appellant for $2,000. Witness was 'acting under the instructions of appellant when he made the settlement with Boy Dillard.

Appellant asked the count to instruct the jury to return a verdict in its favor, which prayer the court refused and to which ruling the appellant duly excepted. The court, on its own motion gave to the jury two instructions, only one of which we deem it necessary to set out. No. 2 is as follows: “You are instructed that, unless you find from a preponderance of the evidence that the plaintiff, J. F. Dillard, paid all assessments due by him or Mrs. Martha Baker, to whom the policies in this case were issued, of which either of them had notice, you will return your verdict for the defendant.”

The jury returned a verdict in favor of the appellee in the sum of $220, and from a judgment entered in his favor for that sum is this appeal.

In DeLoach v. Ozark Mutual Life Association, 148 Ark. 414, we declared the law to be that a recovery cannot be had where the certificate of insurance was obtained by actual • fraud, that is, where there was a wilful purpose to deceive on the part of the insured or the applicant, but that premiums may be recovered in all other cases. Here, the court, in an instruction given at the instance of the appellant, told the jury, in effect, that, if the age of Mrs. Miartha Baker, the assured, was over sixty years at date of the application for membership in the association, they should find for the appellant, unless they further found from the evidence that her age was not carelessly, wilfully, or knowingly mis-stated in the application. In other words, if Mrs. Baker was over sixty years of age at the time of her application, and it was wilfully, negligently or knowingly misstated that she was under sixty years of age, then the verdict should be in favor of the appellant. It will thus be seen that the instructions of the court were more favorable to the appellant than it was entitled to, under the doctrine announced in DeLoach v. Ozark Mutual Life Association, supra; Lincoln Reserve Life Ins. Co. v. Smith, 134 Ark. 245.

The law on this subject was correctly announced in the instruction No. 1 given by the court on its own motion in which the court told the jury that, if the application of Mrs. Baker was made in good faith and the first premium paid by her, and all the other premiums were paid by the appellee, Dillard, the contract was a valid one, and Dilliard would be authorized to recover, unless there was a fraud in the representation as to Mrs. Baker’s age. The issue as to whether or not the certificates were issued through fraud perpetrated upon the appellant by the appellee was submitted under instructions that certainly were not prejudicial to the appellant, and of which it therefore has no right to complain.

The court did not err in refusing to allow the appellant to read in evidence the statement of Mrs. Martha Baker made to appellant’s agent, reduced to writing and purporting to be signed by Mrs. Baker. Mrs. Baker was not a party to the action, nor is she a party in interest^ and most assuredly she was not representing the appellee as his agent in making the statement. Lincoln Reserve Life Ins. Co. v. Smith, supra. Therefore, the purported statement was but the baldest hearsay, and under no rule of evidence was the same admissible. Mrs. Baker was living, and her testimony, if thoug'ht to be competent and relevant to the issue involved, could have been adduced in some of the methods authorized by the rules for the production of evidence.

The principal and only serious question in the case is whether or not there was any testimony to support the verdict on the issue of whether or not the appellee was entitled to recover on the alleged promise of the appellant, through its agent, Wagner, to cancel the certificates and return to the appellee the assessments or premiums that had been paid by him. This issue was submitted to the jury by the court’s instruction No. 2, set out above. The phraseology of this instruction was not as clear as it should have been, but there was only a general objection to it, and, when taken in connection with instruction No. 8 given at the instance of the appellant, it could not have confused and misled the jury. By these instructions the jury was told, in substance, that, unless Wagner was the agent of appellant and- had authority to make the statements which the appellee and his' witnesses attributed to him concerning the cancellation of the certificates and the return to the appellee of the assessments paid by him, and acted within the scope of such authority, then the appellant would not be bound by such statement, and the verdict should be in favor of the appellant.

These instructions^ when taken together, sufficiently declare the law in conformity with many decisions of this court upon the question as to whether or not Wagner was the agent of the appellant and whether or not he had authority to enter into a contract with appellee to cancel the certificates and return the amount of the assessments which had been paid by the appellee as set up in his complaint, and whether or not he acted within the scope of his authoritv. See Anderson-Tully Co. v. Gillett Lbr. Co., 155 Ark. 224; Oliver Construction Co. v. Erbacker, 150 Ark. 549, and cases there cited.

It is an exceedingly close question as to whether Wagner, the employee of the appellant,-had authority to make the contract alleged. The testimony is abundant that Wagner assumed the authority to make the contract alleged, but of course the appellant was not bound by any assumption of authority by him. However, his testimony shows that he was authorized by the appellant in certain oases and under certain circumstances to' make settlements for the appellant. He was out on a mission of that character, as shown by the testimony of both the appellee and the appellant, when the alleged contract was entered into upon which appellee predicates his right to recover. Wagner settled a claim with the appellee’s son. The appellee’s testimony tended to prove that, after this visit and alleged agreement, the appellant did not give him any further notice of the due dates of assessments which it had done up to that time. Appellee had paid every month from the time the policies were taken out until the time of the alleged agreement with Wagner. The testimony of the secretary of the appellant directly controverts the above testimony of the appellee, but this conflict made an issue for the jury.. If the appellant, after the alleged contract between appellee and Wagner in September, ceased to give the appellee notice of the date when assessments were due, which the jury had a right to- find from the testimony was a fact, then this was a circumstance tending to prove that the appellant had clothed Wagner with the authority to make the contract, and that it was treating such contract as valid and binding. The circumstance^ as disclosed by the testimony of appellee’s witnesses, and also of appellant’s witnesses, were sufficient to make it an issue of fact as to whether or not the appellant had clothed Wagner with apparent authority to make the contract. This court has often approved the statement of the law as to apparent authority announced in 2 C. J. 573, as follows: “Apparent authority in an agent is such authority as the principal knowingly permits the agent to assume, or which he holds the agent out as possessing; such authority as he appears to have by reason of the actual authority which he has: such authority as a reasonably prudent man, using diligence and discretion, in view of the principal’s conduct would naturally suppose the agent to possess.” Pierce v. Fioretti, 140 Ark. 306-313.

There is no reversible error in the record, and the judgment must therefore be- affirmed. It is so ordered.