author: Hart, J., Hart, J.,

text:
    Pocahontas v. Central Power and Light Company.
    Opinion delivered February 27, 1922.
    1. Municipal corporations — franchise contracts. — Where ■ a municipal corporation by an ordinance gives its consent to a public service corporation to enter the municipality and furnish electricity or gas to consumers upon terms and conditions which are accepted by the corporation, such action by both parties constitutes a contract, and the rights of the parties thereunder are to be determined by the contract itself.
    2. State — regulation of public utilities. — While franchise rate contracts as between the parties themselves are binding, the right to regulate the rates of public service corporations is vested in the State in the exercise of the police power, and may be exercised directly or through a commission created by it, or the State may delegate such power to a municipality.
    3. Municipal corporations — modification of franchise rates.— A franchise granted by a city to a public service corporation to furnish water or electric lights to consumers in a city, being a contract between the city and the corporation, may be modified by an ordinance raising the water and light rates, when accepted by the corporation.
    4. Municipal corporations — binding nature of franchise contracts. — Contracts between municipal corporations and public utilities are placed in the same category with contracts between individuals, and the enforcement thereof can not be interrupted upon the ground that they will result in the bankruptcy of the utilities, any more than the enforcement of contracts by individuals could be rescinded on sueh grounds.
    5. States — control over public utilities. — The power conferred ■by Acts of 1919, p. 411, to change the franchise rates of public utilities was a valid exercise of the police power of the State, and the rights of municipal corporations and public utilities under the franchises granted to the latter gave way to the sovereign power of the State.
    i!. Municipal corporations — franchise rates. — Where the Corporation Commission first granted an application by a public utility operating within a municipality to increase its charges over the franchise rates, but subsequently set aside such order, and subsequently the Corporation Commission was abolished by General Acts 1921, p. 177, and jurisdiction- to regulate public utilities within their limits was restored to municipalities, this had the effect of restoring the old franchise rates.
    7. Municipal corporations — fixing rates of public utilities— appeal. — Under Gen. Acts 1921, p. 177, § § 17, 19, providing that rates for public utilities fixed by municipalities shall be final and binding, subject to the right of appeal by the public utility or by any person or corporation aggrieved, and § 23, providing that municipalities shall not be deprived of the benefits or rights accruing under any franchise or contract, held that a public utility operating within a municipality can appeal to the courts for relief from rates deemed unreasonable or discriminatory where the municipality fixed rates lower than the franchise rates, or where there were no franchise rates, but not where the municipality fixed the rates provided for in the franchise of the public utility.
    8. Municipal corporations — power to fix rates of public utilities. — Under Crawford & Moses’ Dig., § 7565, providing that municipal corporations shall have power “to authorize the construction of gas and electric works,” the Legislature intended to include the authority to agree upon the rates to be charged during the life of the franchise.
    Appeal from Randolph Circuit Court; Dene II. Coleman, Judg’e on exehang’e;
    reversed.
    STATEMENT OF FACTS.
    The Central Power & Light Company brought this suit in the circuit court under the statute against the mayor and common council of the town of Pocahontas to review and set aside an order made by them prescribing the rates for electric current for light and other purposes, to consumers in the town of Pocahontas, and to enjoin them from putting into effect said rates.
    L. R. Martin and other consumers of electricity in the town of Pocahontas were made parties defendants to the action because they had brought a suit in the chancery court against the Central Power & Light Company to restrain it from putting in force a schedule of increased rates.
    On the third day of December, 1912, the town of Pocahontas, 'by an ordinance, grunted to W. II. Skinner the exclusive right to operate and furnish electric lights to said town and the inhabitants thereof for a period of twenty-five years. W. H. Skinner accepted the franchise granted by said ordinance and transferred his rights thereunder to the Central Power & Light Company, a corporation, which succeeded to his rights in the premises.
    The Central Power & Light Company applied to the Arkansas Corporation Commission for an increase of rates for furnishing electric light to the town of Pocahontas and its inhabitants. The Arkansas Corporation Commission at first granted to said Central Power & Light Company an increase of rates, but no surrender of franchise was offered by said company, or demanded by said Arkansas Corporation Commission.
    On application of the town of Pocahontas, the Arkansas Corporation Commission set aside its order and granted a re-hearing in the matter. Pending the rehearing, the act of the Legislature of 1919, creating the Arkansas Corporation Commission, was repealed and an' act passed creating the present Railroad Commission. The latter act was approved February 15, 1921, and under it municipalities were granted the power to fix the rates to be charged by public utility companies operating in their limits, under certain conditions which are prescribed and provided for in the act. When the Arkansas Corporation Commission set aside its order granting to said Central Power & Light Company the right to increase its rates, it provided that the company might continue the new rates in force for a period of six months upon executing a bond provided for by the statute.

      On April 4, 1921, the town council of Pocahontas passed a resolution fixing the rates to'be charged by said 'Central Light & Power Company at the amount authorized by the franchise under which it operated. This was the amount which the company had charged prior to the order made by the Arkansas Corporation Commission. The company appeared and opposed the change of rates by the town council.
    The Central Power & Light Company then appealed to the circuit court, and, hearing the proof, the circuit court found that the Central Power & Light Company was entitled to an increase of rates, and the court fixed the amount of the increase. The court found that the Central Power & Light Company never surrendered its rights under its franchise to the Arkansas Corporation Commission. The court further found that the Arkansas Corporation Commission had never issued to the Central Power & Light Company an indeterminate permit, as provided by the act creating said commission.
    A judgment was rendered accordingly, and to reverse that judgment the town of Pocahontas has duly prosecuted an appeal to this court.

      Schoonover $ Jackson and Pope é Bowers, for appellants.
    The franchise granied by the town of Pocahontas to W. EL Skinner, and accepted by him, constituted a contract, and was binding on both parties. 141 Ark. 18; 80 Ark. 108; 211 S. W. 664; 101 Ark. 223; McQuillan on Municipal Corporations, vol. 4, par. 1672.
    A contract once entered into cannot be changed except by consent of parties, and neither can that change be affected by legislative enactment.
    There was no legal or sufficient proof to show that the rates fixed were unreasonable.
    A city council, in the exercise of its legislative power in granting a water and light franchise, is vested with a discretion which can be controlled by the courts only after abuse. 138 Ark. 390.

      Ponder S Gibson, for appellee.
    Defendant waived, its rights under section 23 of act. 124 of the Acts of 1921. Contractual conditions are subject to waiver and estoppel. 28 Cyc. 683; 131 Mich. 52; 99 N. Y. App. Div. 588. A contract may be modified or a waiver of conditions can be made by a municipal corporation. 122 Fed. 332; 1 Dillon on Municipal Corporations (4th Ed.) sec. 451; 21 N. Y. 199. Contracts between municipalities and public utilities are governed by the same -rules of law as those governing contracts between private corporations and individuals. 28 Cyc. 679; 138 Arle. 394. A contract between a municipality and a public service company may be modified by mutual consent. McQuillan on Mun. Corp., vol. 4, par. 1717; 101 Ark. 223.
    The construction placed upon section 23 of the act is not the proper one. 101 Ark. 204.
    A statute should be construed so as to best answer the intention the maker had in view. 3 Ark. 285. See also on the Construction of Statutes, 5 Ark. 536; 13 Ark. 52; 25 Ark. 101; 27 Ark. 419; 76 Ark. 303; 31 Ark. 119; 115 Ark. 194; 120 Ark. 510; 102 Ark. 205; 82 Ark. 392; 186 S. W. 604; 124 Ark. 20; 124 Ark. 475.
    The act was legal and binding. 145 Ark. 205; 54 Ark. 112.
    All contracts made by municipalities and utilities are made subject to regulation under the police power. 141 Ark. 18.
    Rates fixed by the city council are presumed to be reasonable. 54 Ark. 112.
    The plaintiff is entitled to a reasonable return on the value of its property devoted to public use. 212 II. S. 19; 141 Ark. 25; 104 Árk. 227; 105 Wis. 651; 138 Ark. 394; 145 Ark. 205.
   Hart, J.,

(after stating the facts). This is an appeal from a judgment of the circuit court under a holding that the electric light rates established by the town of Pocahontas under the provisions of act No. 124 of the General Assembly of 1921, after due notice to the Central Power & Light Company, are unreasonable and confiscatory, and approving the rale named by said Central Power & Light Company and put in force by it in furnishing electricity to 'consumers in the town of Pocahontas.

The Arkansas Corporation Commission was abolished by the act in question, and jurisdiction was conferred upon municipal councils to regulate the rates of public utilities operating within the limits of such municipalities. General Acts of 1921, p. 177.

We will first review the general principles of law governing cases like the present one. It is elementary law that when a municipal corporation by an ordinance gives its consent to a public service corporation to enter the municipality and furnish electricity or gas to consumers upon terms and conditions which are accepted in writing by the public service company, such action by both parties constitutes a contract, and the rights of the parties thereunder are to be determined by the contract itself.

It is equally well settled that while franchise rate contracts as between the parties themselves are binding, still the right to regulate the rates of public service corporations is a governmental power' vested in the State in its sovereign capacity. The reason that the reg’ulatiou of such rates is an attribute of sovereignty is that such regulation is for the purpose of promoting the health, comfort, safety, and welfare of society and is therefore an exercise of the police power. The State may exercise the power directly or through a commission created by it; or the State may delegate such power to a municipality. The right of the State to regulate the rates of public service corporations by compulsion under the police power, should not be confused with the right of a city to exercise its contractual power to agree with a public service company upon the terms of a franchise or a change of rates under it.

This distinction has been recognized by this court in its various decisions on the subject. In Ark. Light & Power Company v. Cooley, 138 Ark. 390, it was held that a franchise granted by a city council to a public service company to supply water and light to the city and its inhabitants at certain rates, when accepted, becomes a contract between the municipality and the public service company, and the terms and conditions therein are binding on the municipality and company.

The court further held that a franchise granted by a city to a public service corporation to furnish water and electric lights to consumers in the city, being a contract between the city and the corporation, may be modified by an ordinance raising- the water and light rates, when accepted by the corporation.

Again, in Lonoke v. Bransford, 141 Ark. 18, the court held that contracts between municipal corporations and public utilities are placed in the same category with contracts between individuals, and that the enforcement thereof can not be interrupted upon the grounds that they will result in the bankruptcy of the utilities, any more than the enforcement of contracts by individuals could be rescinded on such grounds.

The court further held that the only remedy for such a condition was a modification of the rates by mutual consent, and that under the statute then existing a municipal corporation only had the power to revise downward rates established in a franchise without the consent of the public utilities.

The facts presented by the record in these cases occurred before the Legislature of 1919 created the Arkansas Corporation Commission and conferred upon it jurisdiction to regulate rates of public service corporations. Chap. 37 of Crawford & Moses’ Digest.

The power conferred by that act on the Corporation Commission to change the franchise rates of public utilities and not to impair the obligation of contracts was a valid exercise of the police power of the State. Such statutes have been held by the Supreme Court of the United States not to be repugnant to the contract or due process of law clauses of the United States Constitution.

In Union Dry Goods Co. v. Georgia Public Service Corporation, 248 U. S. 372, the facts were that the State had fixed reasonable rates to be charged by a corporation for supplying electricity to the inhabitants of a city, which superseded lower rates agreed on in an existing time contract made previously between the company and a consumer, and the court held it to be a legitimate effect of a valid exercise of the police power, not impairing the obligation of the contract or depriving the consumer of property without due process of law.

The court quoted with approval from the Legal Tender Cases the following: “Contracts must be understood as made in reference to the possible exercise of the rightful authority of the Government, and no obligation of a contract can extend to defeat the legitimate Government authority. ’ ’

The Legislature of 1919, having created the Arkansas Corporation Commission, and having given it power to regulate the rates of public utilities, the rights of municipal corporations and public utilities under the franchisés granted by the former to the latter gave way to the sovereign power of the State.

Under the provisions of the act of 1919, the Central Power & Light Company applied to the Arkansas Corporation Commission for an increase of rates, which was granted by the Commission. Before the decision ■became final, upon the petition of the town of Pocahontas, the Arkansas Corporation Commission set aside its order giving an increase of rates to the Central Power & Light Company and granted the town of Pocahontas a rehearing in the matter. Pending the rehearing, the Legislature of 1921, by an act approved February 15, 1921, abolished the Arkansas Corporation Commission and created the Arkansas Railroad Commission. General Acts of 1921, p. 177.

The public service corporations over which the jurisdiction of the Commission shall extend is specifically stated in section 5 of the act, and jurisdiction by municipalities to regulate public service corporations of public utilities operating within the limits of such municipalities is conferred by § 37 of the act. The Arkansas Corporation Commission had set aside its order giving an increase of rates to tire Central Power & Light Company, and granted a rehearing in the matter to the town of Pocahontas, at the time it was abolished by the Legislature of 1921. This had the effect of restoring the old franchise rates except for the ensuing period of six months, as provided in the order of the Corporation Commission.

The order having been set aside by the Corporation Commission before it became final, necessarily had the effect to restore the old franchise rates. This left the regulation of the rates where it was placed by the Acts of 1921 above referred to, which repealed the old act and created the new commission and conferred jurisdiction upon municipalities to regulate the rates of public utilities operating within their limits.

The common council of the town of Pocahontas, in the exercise of the authority conferred upon it by the new act, promulgated and put into effect the franchise rates of the Central Power & Light Company in the town of Pocahontas. The correctness of its action depends upon the construction to be placed upon sections 17 and 23 of said act. Section 17 begins on page 199 and reads as follows: “Sec. 17. The jurisdiction of the municipal council or city commission of any municipality shall extend to and include all matters pertaining to the regulation and operation within the limits of any such municipality of any street railroad, telephone company, gas company furnishing gas for domestic or industrial purposes, pipe line company for transportation, distribution or sale of oil, gas or water, electrical company, water company, hydro-electric company or other company operating a public utility or furnishing public service within such municipality.

“Every person, firm, company or corporation engaged in any such public service business within any municipality shall establish, make and maintain such adequate and suitable facilities, appliances, devices, connections, installations and improvements in said municipality as may be essential to enable such public utility to properly perform its public utility duties within said municipality, so far as may be required by its franchise or contract, or so far as it is. within the police power of this State or said municipality to require such service; and the municipal councils or city commissions of municipalities within the State of Arkansas, regardless of class, shall have the exclusive right, and it is hereby made their duty, from time to time, to make all reasonable and proper rules and regulations with reference to the operation within such municipality of any such utility, and to order the performance of any duty devolving on such public utility under its franchise or contract, if any, ■ or under this or any other statute or law, and from time to time to initiate, fix, promulgate, regulate, modify, amend, adjust, readjust or otherwise make and determine fair and reasonable rates to be charged by all public utilities for furnishing public utility service within such municipalities, which rates shall be so determined and fixed by an order ór ordinance, after a hearing made, either upon its own initiative or upon application of any such utility to such municipal council or city commission; such hearing shall be held after thirty days’ written notice by the common council or city commission to the utility of the time for such hearing, unless application for such hearing is made by the utility, in which event the hearing shall be had within thirty days after written application by such utility, unless the evidence with reference thereto can not be reasonably adduced within such period, and in the latter event such hearing shall be had as expeditiously as feasible; provided, however, that said municipal connoil or city commission shall, within sixity days .after written application for such hearing, approve or disapprove, in writing, wholly or in part, the schedule of rates and charges accompanying said petition; and if the said municipal council or city commission does not so act within the period of sixty days, the schedule of rates or charges filed by such public utility shall be deemed to have been disapproved.

“The said rates, when so fixed or determined, shall be final and binding, subject to the right of appeal on the part of the utility as hereinafter specified.
“Any such municipal council or city commission shall also have the right by order or ordinance, after due notice as aforesaid, to direct that said utility do or cause to be done within such reasonable time as may be- herein prescribed, any reasonable thing necessary for the performance of any duty within said municipality of said public utility, subject to the right of appeal on the part of the utility as hereinafter specified.”

Sec. 23 is on page 206, and reads as follows: “That nothing in this act shall deprive or be construed as depriving any municipality of the benefits or rights accrued or accruing to it under any franchise or contract to which it may be a party, and no court exercising jurisdiction under this act shall deprive such municipality of any such benefit or right.”

When read and construed together, we think that it was the intention of the Legislature to confer express power upon municipalities to regnlate the rates to be charged 'by public service corporations operating within their boundaries.

The concluding part of § 17 provides that the rates fixed by the municipalities in accordance with the provisions of § 17 of the act shall be final and binding, subject to the right of appeal on the part of the utility as hereinafter. specified.

Sec. 19 provides that any person or corporation aggrieved by a rate fixed by the municipal council shall have the right to have said action reviewed 'by the circuit court of the county in which the municipal council is located.

So it will be seen that if, in the exercise of its power to regulate the rates to be charged by public service corporations, the municipality should fix rates lower than the franchise rates, the public service corporation would have the right to have such action reviewed in the circuit court, if it deemed them unreasonable.

Again, if there were no franchise rates, the public service corporation would have the right to have the action of the municipality in fixing its rates reviewed in the circuit court if it deemed them to be unreasonable or discriminatory.

On the other hand, § 23 was enacted for the purpose of preventing a review of the action of the municipality in fixing the rates provided for in the franchise of such public service corporations. This is shown by the concluding part of the section, which provides that no court exercising jurisdiction under the act shall deprive such municipality of the benefit or right it has under the franchise granted by it to the public service utility. This view is strengthened when we take into consideration that the preceding section deals with the subject of the review which may be granted in the circuit court.

Of course, as we have already seen, the contract between municipalities and public service corporations as between themselves are binding, and, like contracts between private individuals, are subject to modification or change by the consent of both parties. Hence by consent the municipality might grant an increase of rates to the public service corporation if it was deemed reasonable and right to do so, and this right of contract between the parties is not taken away by the statute. The purpose of § 23 was to prevent the public service corporation from having the action of the city council reviewed where it placed in effect the franchise rates of the corporation. The Legislature evidently proceeded upon the theory that the contract granting- the franchise, when accepted by the public service corporation, was valid and binding during the life of the franchise, and that, if the municipality elected to stand by it and refuse to grant .a modification of it, no right to review in the courts should be given to the public service corporation.

It follows that the order of the municipality putting in force the franchise rates was a valid order and was not subject to review in the circuit court at the instance of the public service corporation.

Therefore the judgment will be reversed, and the cause will be remanded to the circuit court with directions to dismiss the petition of the Central Power & Light Company at its cost.

Hart, J.,

(on rehearing.) Counsel for appellee in their motion for a rehearing have called our attention to the case of Home Telephone & Telegraph Company v. Los Angeles, 211 U. S. 265, and base their right to a rehearing on the principles decided in that case. We do not think that case lends any support to their right for a rehearing. The Supreme Court of the United States expressly recognizes the right of the State to authorize its municipal corporations to establish by a contract the rates to be charged by a public service corporation for a definite term which is reasonable in point of time. In that case the franchise was granted by an ordinance for a term of fifty years which was to be enjoyed in accordance with the terms and conditions named. The council was given the power “by ordinance * * * to regulate telephone service and the use of telephones within the city * * * and to fix and determine the charges for telephones and telephone service and connections.” The court held that this gave ample authority to exercise the governmental power of regulating charges, but that it gave no authority to enter into a contract to abandon the governmental power itself. The court expressly recognized in that case that an agreement as to rates might be autliorized by a State Legislature to be made by ordinance, and simply lield tliat the ordinance authorized was not an ordinance to agree upon rates for the life of the franchise, but that it was simply an ordinance to fix and determine rates.

On the other hand, in Vicksburg v. Vicksburg Waterworks Co., 206 U. S. 495, the Legislature had authorized the city “to provide for the erection and maintaining of a system, of waterworks to supply said city with water, and to that end to contract with a party or parties who shall build and operate waterworks”; and the court held that it was within the right of the-city council, in the exercise of the power conferred, to make a binding contract fixing a maximum rate at which water should be supplied to the inhabitants of 'the city for a limited term of years.

In determining- the matter of contracts in cases like this, the Supremo Court of the United States has given the State decisions much weight and ordinarily followed them. The reason that the Supreme Court of the United States generally follows the decisions of State courts in construing their own statutes and constitutions is that the ordinary administration of the law is carried on by the State courts, and by the course of their decisions property rights become vested which it would be wrong to disturb.

In Taliaferro v. Barnett, 47 Ark. 359, the court held that a decision of this court when overruled stands as though it had never been, and that the court in reversing-a judgment declares what the rule of law was in fact when the erroneous decision was made.

Again, in Apel v. Kelsey, 52 Ark. 342, the court said that former interpretations of the law have become rules of property and should not be overturned. See also Townsend v. Martin, 55 Ark. 192, and Washington Fire Ins. Co. v. Hogan, 139 Ark. 130.

Our statutes granting-municipal corporations power to provide for or construct waterworks or works for lighting the streets and furnishing such power to consumers have already been before this court for construction in varying forms, and it has always been held that municipal corporations may by ordinance accepted by a public service corporation fix rates for the life of the franchise within a certain designated minimum and maximum, and that the rates so fixed are matters of contract. The right of the public service corporation to take the rates so fixed and to rest securely thereon has been regarded as guaranteed by the Constitution of the 'State and of the United States. Lackey v. Fayetteville Water Co., 80 Ark. 108; Arkadelphia Elec. Light Co. v. Arkadelphia, 99 Ark. 178; Mena v. Tomlinson Brothers, 118 Ark. 167; Arkansas Light & Power Co. v. Cooley, 138 Ark. 390, and Lonoke v. Bransford, 141 Ark. 18.

It is a rule of construction that existing statutes become a part of such contracts. Hence in Arkadelphia Elec. Light Co. v. Arkadelphia, 99 Ark. 178, and Lonoke v. Bransford, 141 Ark. 18, it was held that the municipal corporations had the power to lower rates. The fixing of minimum and maximum rates in such ordinances is evidently made to meet the rise and fall of prices in labor and commodities.

It is worthy of note that the public service corporations have heretofore contended that contracts fixing maximum and minimum rates are binding. Doubtless, therefore, many such franchises have been granted on the faith of our previous construction of the statute, and the overruling of these decisions might result seriously to those who have relied on them in the conduct of their affairs.

It is also suggested that our decision is in conflict with Southern Iowa Electric Co. v. Chariton, 255 U. S. 539, and San Antonio v. San Antonio Public Service Company, 255 U. S. 547. We do not think so. In the first-mentioned case, the statute provided in express terms that the power of municipal corporations to regulate rates shall not be abridged by ordinance or contract; and the Supreme Court of the United States properly followed the decision of the Supreme Court of Iowa that the limitation or restriction provided by the statute could not be bartered away by the city council.

In the last-mentioned case the Constitution of Texas provided that “no irrevocable or uncontrollable grant of special privileges or immunities shall be made, but all proceedings and franchises granted by the Legislature or created under its authority shall be subject to the control thereof”; and it was properly held by the Supreme Court of Texas and of the United States that this prevented the ordinance in question from becoming a binding rate contract. The court held further that, even if the city had been granted power to make such contracts by a later amendment to the State Constitution, the existing ordinance was not thereby converted, for the future, into a contract.

Therefore the motion for a rehearing will be denied.


source: Caselaw Access Project

author: McCulloch, C. J.

license: Public Domain

text:
    Gray v. Duffy.
    Opinion delivered March 6, 1922.
    1. Appeal and error — final decree. — A decree which recites that the parties appeared, and defendant presented a demurrer to the complaint, that the demurrer was heard by the court and overruled, that defendant stood.upon the demurrer and refused to plead further, and that it was “ordered and decreed that the temporary order heretofore issued herein be and the same is hereby made perpetual,” is a final decree and is appealable.
    2. Appeal and error — failure to award costs — finality of judgment. — Failure to award costs does not affect the finality of a decree making a temporary injunction perpetual.
    3. Ferries — jurisdiction of county court. — Under Const., art. 7, § 28, conferring exclusive original jurisdiction on the county court in matters relating to ferries, that court was invested with exclusive original jurisdiction in all matters relating to the control and regulation of ferries, including rates of charges.
    4. Ferries — jurisdiction of county court.- — Const., art. 7, § 28. giving exclusive original jurisdiction of ferries to the county court, was not repealed by adoption of Amendment No. 2, which authorizes the creation of a commission “to correct abuses and prevent unjust discrimination and excessive charges by railroads, canals and turnpike companies for transporting freight and passengers.”
    Appeal from Independence Chancery Court; Lyman F. Reeder, Chancellor;
    reversed.

      1. J. Matheny, for appeílaxxt.
    The provisioxx in the Constitution, art. 7, § 28, coxxferring upon the county court “exclusive original jurisdiction in all matters relating to county taxes, roads, bridges, ferries,” etc., coxxfers upon that court, and none other, the power to fix the toll or rates to be charged by ferries. 98 Ark. 67.
    Sec. 5, act 124, Acts 1921, is in conflict with the above constitutional provision.

      Samuel M. Casey, for appellees.
    • 1. The decree of the lower court is xiot final, and thex*efore, not appealable. 102 Ark. 380; Union & Mercantile Trust Co. v. Hudson, 147 Ark. 7.
    2. Sec. 5, art. 124, Acts 1921, extending the jurisdiction of the Railroad Commission to the regulatioxx and operation of ferries, is not in conflict with Constitution, art. -7, § 28. Ferries aré classed as common carriers, axxd, uxxder the original jxxrisdiction conferred on the Coxxxmission by Amendment No. 2, it would have jurisdiction- over ferries, at least for the purpose of fixing rates. See decisions of this couid in road cases in which the same constitutional provision was claimed to be violated. 138 Ark. 549; 139 Id. 281; 141 Id. 247; 139 Id. 153.
   McCulloch, C. J.

Appellees are, respectively, the owixers of certain ferries axid ferx-y privileges across White River iix Independence County, and the county court of that county entered orders fixing rates of tolls for the ferries ixx the county, and attempted to enforce these orders. This is axx actioxx instituted by appellees in the chancery court of Independence County to restrain the county judge from attempting to enforce the orders of the court.

This is an appeal from the judgment of the chancery court overruling’ a demurrer to the complaint and making perpetual the temporary restraining order issued at the commencement of the action.

It is contended by counsel for appellees, in the first place, that the decree is not final and appealable. The decree recites that the parties appeared, and appellant presented a demurrer to the complaint; that the demurrer was heard by the court and overruled; that appellant stood upon the demurrer, refused to plead further, and saved his exceptions to the ruling of the court, and that it was “ordered and decreed that the temporary order heretofore issued herein be and the same is hereby made perpetual.” The record also recites that the defendants prayed an appeal to the Supreme Court, which was granted.

We are of the opinion that the decree was final, and that an appeal was properly prosecuted therefrom. It is true that the record entry of the decree does not show what the terms of the restraining order were, but the order was a part of the record in this case, and the decree must be read and interpreted in the light of the temporary order, which was as much a part of the record as the decree itself. The only omission was the failure to award costs, but that did not affect the finality of the decree. The perpetuation of the temporary order was necessarily final in its nature.

The main question in the case is whether or not the power to fix ferry tolls is vested in the county court by the Constitution, or in the Railroad Commission by the recent statute creating that Commission. (Act No. 124, Acts of 1921, p. 177).

The Constitution (article VII, § 28) provides that. “ county' courts shall have exclusive original jurisdiction in all matters relating to county taxes, roads, ■bridges, ferries, paupers, bastardy, vagrants, etc.” Section 5 of tbe act of 1921, supra, attempts to confer jurisdiction on tbe Railroad Commission in ‘ ‘ all matters pertaining to tbe regulation and operation of * * * * * toll bridges, ferries, steamboats, etc.”

It is claimed that the provision of the Constitution quoted above relates merely to jurisdiction to establish ferries, which said jurisdiction is conferred upon the county court, but that the Legislature was left free to provide any agency it saw fit to regulate rates. We do not agree to this interpretation of the constitutional provision, which in plain terms confers jurisdiction on the county court “in all matters relating to county taxes, roads, bridges, ferries,” etc. This undoubtedly includes the regulation of ferry rates because it is a part of the control of ferries. It was the plain purpose of the framers of the Constitution to place within the jurisdiction of the county court all control and regulation of ferries. The jurisdiction was exercised by the county court, without objection, in the case of Covington v. St. Francis County, 77 Ark. 258.

Again, it is contended that, even if the Constitution as originally written, conf erred jurisdiction on county courts in such matters as the regulation of ferries, it was taken away by the adoption of Amendment No. 2, which authorizes the creation of a commission “to correct abuses and prevent unjust discrimination and excessive charges by railroads, canals and turnpike companies for transporting freight and'passengers. ” This amendment has no application to the control of ferries, at least the language is not sufficiently explicit to be construed as an abrogation of the provision in section 28 of article VII, quoted above.

Counsel for appellees cite, in support of their contention that fixing ferry rates does not invade the jurisdiction of the county court, our recent decisions, beginning with Sallee v. Dalton, 138 Ark. 549, holding that the creation of improvement districts for the purpose of improving public roads is not an invasion of the constitutional jurisdiction of county courts over roads. There is, we think, no analogy between the two questions, for the improvement of public roads does not displace the authority of the county court over the subject of public roads. On the other hand, the attempt on the part of any other agency to fix ferry tolls is essentially a regulation which falls clearly within the powers of the county-court.

Our conclusion is that the decree of the chancery court was erroneous, and the decree is therefore reversed and the cause remanded, with directions to sustain the demurrer to the complaint.


text:
    Flowers v. State.
    Opinion delivered March 6, 1922.
    1. Homicide — assault to kill — indictment.—An indictment for assault with intent to kill need not allege that there was a battery.
    2. Homicide — assault to kill — variance.-—There is no variance between an indictment charging assault with intent to kill without alleging a battery and proof showing that the assault was accompanied by battery.
    3. Homicide — assault with intent to kill — indictment.—An indictment for assault with intent to kill which alleges that defendant “did unlawfully, wilfully, knowingly, maliciously, deliberately, feloniously, and of his malice aforethought and with premeditation, commit an assault in and upon one B., with a deadly weapon, to-wit, a pistol, then and there held in the hands of him, the said F., with the felonious intent then and there him, the said B., to kill and murder,” held sufficient.
    4. Homicide — assault with intent to kill — question for jury.— In a prosecution for assault with intent to kill, held, under the evidence, that it was a question for the jury whether the defendant shot in self-defense, and whether it was done upon a sudden heat of passion, caused by a provocation apparently sufficient to make the passion irresistible.
    5. Homicide — sufficiency of evidence of assault to kill. — Accused cannot be convicted of assault with intent to kill if the evidence shows that he could have been convicted of manslaughter, but not murder, in the event death had resulted.

      6. Homicide — assault with intent to kill — instruction.—An instruction that if the jury find “that the alleged assault upon B. was committed by the defendant F. while he was acting under the influence of passion and excitement suddenly aroused caused by a provocation apparently sufficient .to make the passion irresistible, then you will acquit the defendant of the charge of assault with intent to kill,” held to cover the subject of an assault committed under heat of passion caused by provocation sufficient 'to make the passion irresistible.
    7. Homicide — assault with intent to kill^-justification.— While the fact that an illicit relation existed between defendant’s wife and the assaulted person did not constitute a justification for the assault, said fact was properly to be considered by the jury in mitigation of the offense, and in determining 'whether or not the assault was made upon a sudden heat of passion and upon sufficient provocation.
    8. Criminal law — intruction assuming fact. — In a prosecution for assault with intent to kill, an instruction requested by accused that if they found the prosecuting witness had been intimate with defendant’s wife, and that defendant committed the assault under the sudden passion caused thereby he could not be convicted of assault with intent to kill, was misleading as assuming that the intimacy was sufficient provocation for sudden passion.
    9. Homicide — assault with intent to kill — instruction.—In a prosecution for assault with intent to kill, an instruction which confused the issues of self-defense and of acting under sudden heat of passion was properly refused, especially where it failed to incorporate on the question of self-defense the necessity of acting with due caution and freedom from negligence.
    Appeal from ■Craighead Circuit -Court, Jonesboro District; B. E. L. Johnson, Judge;
    affirmed.

      Aaron McMullin and Cautney, Caraway & Dudley, for appellant.
    1. The demurrer should have been sustained. The indictment is not such as could be pleaded in bar of prosecution for assault and battery, in the event of defendant’s .acquittal of an assault with intent to kill.
    2. Since, under the instructions given, the jury might have found that the defendant had no right to go to Back’s store to remonstrate with him, or to warn him against further association with appellant’s wife, it was error to refuse appellant’s requested instruction No. 3. 133 Ark. 373, 378.
    3. The instruction No. 6, requested by appellant, should have been given, as it was a question for the jury to determine from the facts and circumstances in proof whether or not, at the time of the assault, appellant was laboring under a passion suddenly aroused, caused by a provocation apparently sufficient to make the passion irresistible. O. & M. Dig., § 2383; 81 Ga. 444; 7 -S. E.. 641; 79 S. W. 24; 85 S. W. 5.

      J. S. TJtley, Attorney General, Elbert Godwin and Wm. T. Hammock, Assistants, for appellee.
    1. The indictment is sufficient. This was a charge of assault with intent to kill. It was not necessary to al- ■ lege the manner in which the assault was made, nor the means made use of by the assailant. Neither was it necessary to allege a battery resulting- from the assault. 13 R. C. L. 803, 804; Rogers v. State, 89 Ark. 391.
    2. Appellant’s requested instruction No. 3 was properly refused, for the reason, among others, that the instruction was not properly guarded with an explanation as to what constituted a remonstrance. 133 Ark. 373.
    3. Instruction 4, 5 and 6 were properly refused. The fact that Brock may have had illicit relations with appellant’s wife, did not, in law, justify the assault. C. & M. Dig.; Fisher v. State, 149 Ark. 48. And the question of assault under sudden heat of passion, etc., was covered by instruction 13 given by the court.
   McCulloch, C. J.

Appellant was tried and convicted under an indictment charging him with assault upon one C. R. Brock with intent to kill. In the indictment it is charged that appellant “did unlawfully, wilfully, knowingly, maliciously, deliberately, feloniously, and of his malice aforethought and with premeditation, commit an assault in and upon one C. R. Brock with a deadly weapon, to-wit, a pistol, then and there had and held in the hands of him, the said Ben Flowers, with the felonb ous intent then and there, him, the said C. R. Brock, to kill and murder. ’ ’ There was a demurrer to the indictment, which the court overruled.

The indictment was sufficient. It is unnecessary to allege in the indictment that there was a battery resulting from the assault, and the fact that the State proved the battery in the trial of the cause did not constitute a variance from the allegations of the indictment. Appellant was convicted of the highest offense charged in the indictment — assault with intent to kill — and the evidence was* sufficient to establish all the elements of that crime.

Appellant and Brock both lived in the town of Nettleton, in Craighead County. Brook was operating a grocery store, and appellant resided in the immediate vicinity of the store. He had a wife and three small children, and was at work at Truman, in the adjoining county of Poinsett. He usually left home Monday morning to go to his work and did not return until Saturday night. He walked into Brock’s store on Sunday morning, September 11,1921, and, being armed with a pistol, fired five shots at Brock, some of the shots taking effect in Brock’s body, but the latter recovered from the wounds thus inflicted.

Appellant undertook to show that he acted in self-defense, and also attempted to prove that Brock had been in illicit relationship with his (appellant’s) wife, and that upon receiving positive information of that fact he shot Brock'while acting under the impulse of the heat of passion, suddenly aroused by provocation sufficient to reduce the degree of the crime.

According to the testimony adduced by the State, appellant walked into Brock’s store on the day mentioned, and in the iDresence of witnesses opened fire on Brock with a pistol, without anything being- said between them and without any hostile demonstration on the part of Brock. Brock denied that there were any improper relations between him and appellant’s wife.. Appellant’s testimony was that, after he had been told of circumstances which indicated improper relations between his wife and Brock, he went to the store for the purpose of protesting to Brock, and that when he walked in Brock started in a run towards the cash register,, and that he began firing and fired five shots at Brock. He testified that friends and relatives had given him information for some time that Brock had been frequenting his house at night, that the most definite information was given to him on Sunday morning, a short time before the shooting occurred, and that he thereupon immediately procured a pistol and went over to Brock’s store.

Under this state of the testimony, it was a question for the jury to determine whether or not the shooting was done in self-defense, and whether or not it was done “upon a sudden heat of passion, caused by a provocation apparently sufficient to make the passion irresistible.” Crawford & Moses’ Digest, § 2355.

If the shooting was done in the heat of passion within the meaning of the statute quoted above, so that, if death had ensued, the offense would have been manslaughter, then appellant was not guilty of assault with intent to kill.

Errors of the court are assigned in refusing to give several instructions requested by appellant’s counsel. Most of the requested instructions were, however, covered by other instructions given by the court. For instance, the first instruction requested by appellant was to tell the jury that, in order to convict appellant of the crime charged in the indictment, there must have been a specific intent to kill. The court covered this fully in the third instruction, which was given on the court’s own motion. Appellant requested three instructions, numbered 4, 5 and 6, respectively, which dealt with the same subject — the effect of the shooting being done under sudden heat of passion caused by appellant receiving information of improper relations between his wife and Brock. The court refused to give either of those instructions.

Instructions numbered 4 and 5, requested by appellant, are as follows:

“You are further instructed that, if you believe from the evidence that the prosecuting witness, Brock, had had improper relations with the wife of the defendant, and if you further find that the defendant was informed of this fact, and believed such to be true, and that the defendant went to the place of business of the said Brock on the morning’ of the alleged assault and accosted the said Brock about such matter, and the assault which the defendant made upon said Brock was committed by the defendant while acting under the influence of passion and excitement suddenly aroused, caused by provocation sufficient to make the passion irresistible, then you will acquit the defendant of the charge of assault with intent to kill.
“You are further instructed that, if you believe from the evidence that the prosecuting witness, Brock, had improper relations with the wife of the defendant, and if you further believe that the defendant was informed of this fact, and believed such to be true, and that the defendant went to the place of business of the said Brock in a peaceable way and not for the purpose of assaulting said Brock, on the morning of the alleged assault, and accosted the said Brock in a proper manner about such matters, and the assault which the defendant made upon said Brock was committed by the defendant only after said Brock tried to get his pistol and while the defendant was acting under the influence of passion and excitement suddenly aroused, caused by provocation sufficient to make the passion irresistible, then you will acquit the defendant of the charge of assault with intent to kill.”

Appellant was, of course, entitled to an instruction covering the law on the subject of an assault committed while acting under sudden heat of passion caused by provocation sufficient to make the passion irresistible. Appellant did, in fact, request such an instruction, which tlie court adopted and gave as instruction No. 13 as a part of the court’s charge of its own motion. That instruction reads as follows:

“You are further instructed that, if you find from the evidence in this case, or if the evidence raises in your minds a reasonable doubt, that the alleged assault upon Brock was committed 'by the defendant Flowers while he was acting under the influence of passion and excitement suddenly aroused, caused by a provocation apparently sufficient to make the passion irresistible, then you will acquit the defendant of the charge of assault with intent to kill.”

Instructions 4 and 5, requested by appellant, were misleading, and we 'think that the court properly refused to give them on that account. The fact of intimacy between appellant’s wife and the assaulted person and appellant’s receiving information thereof did not constitute a justification in law for the assault (Fisher v. State, 149 Ark. 48), but those facts were proper for the consideration of the jury in mitigation of the offense and also in determining whether or not the assault was made upon a sudden heat of passion and upon apparently sufficient provocation. Appellant was therefore entitled to an instruction on those subjects, and, if. he had asked for it in proper form, the court should have given an instruction telling the jury that they should consider' these facts and the circumstances under which appellant received the information, the length of time before the assault and the circumstances under which he made the assault, in determining whether the passion under which he acted at the time was suddenly aroused, and whether the provocation was apparently sufficient to make the passion irresistible. The jury could have understood from the instructions as requested that the fact that intimacy between appellant’s wife and Brock and appellant’s receiving information thereof constituted, under the circumstances under which the assault was made, the existence of a sudden heat of passion under sufficient provocation, and those were questions for the jury to determine.

' There is evidence to the effect, that appellant began receiving information concerning alleged intimacy between his wife and Brock more than a week before the date of the assault, and appellant continued his friendly relations with Brock down to the last moment before the assault was committed. He borrowed money from Brock the day before the assault was 'committed, and long after he had received information of his wife’s alleged misconduct. The jury could have found from this testimony, if the matter had been properly submitted to them, that, while appellant had received information concerning his wife’s misconduct, the passion was aroused thereby, if at all, long before the assault was committed, and that he had abundant time and opportunity for his anger to subside, and that it did in fact subside.

Instruction No. 5 was also misleading for the reason that it confused the question of self-defense by reason of acting upon apparent danger with the other question of the assault being made under sudden heat of passion. It also failed to incorporate on the question of self-defense the necessity of acting with due caution and freedom from negligence.

Upon the whole, we are convinced that there was no error committed by the court, and that the evidence was sufficient to justify the verdict.

Judgment affirmed.


author: McCulloch, C. J. Hart, J.,

text:
    Carter v. Franklin County Road Improvement District.
    Opinion delivered March 6, 1922.
    1. Highways — improvement district — abandonment—compensation OP engineers. — Where engineers were employed to do all the engineering work of a projected road improvement, both preliminary and supervisory, for a compensation of five per centum of the cost of construction, one-half to be paid when the plans and specifications were completed, and the b ¿lance in installments during the progress of the work, this form of contract did not constitute a separate contract for services performed in the preliminary work of the district, but constituted merely a specification of the time of payment.
    2. Highways — improvement district — compensation of engineers. —Where the commissioners of a road improvement district employed engineers to do the engineering work for a compensation of five per cent, of the cost of construction, and upon ascertainment of the estimated cost according to plans and specifications it was decided that the improvement could not be made, and the project was abandoned, the engineers were entitled to recover, not upon the contract, but upon quantum meruit; and the method and amount of payment fixed by the contract, while not determinative of the parties’ rights, may be considered in determining the amount to be recovered for services rendered.
    3. Highways — improvement district — compensation of engineers. ■ — A finding of the chancellor that the engineers of an abandoned road improvement project were entitled to $750 as compensation for preparing the plans and specifications held inadequate under the evidence, and the sum of $2,000 allowed therefor.
    Appeal from Franklin Chancery Court, Ozark District; J. V. Bourlcmd, Chancellor;
    reversed.

      Coleman, Robinson & House, and Saye & Saye, for appellant.
    1. By its amended answer, which, in so far as it is inconsistent with the original answer, supersedes it, appellee admits its organization as a road dstrict, the appointment and qualification of its commissioners, and the execution of the contract sued on. An amended and substituted pleading supersedes the original. 103 Ark. 345; 31 'Cyc. 465; 21 R. C. L., Pleading, § 136.
    2. Plaintiff is entitled to recover under- the quantum meruit rule as laid down in Morgan Engmeermg Co. v. Cache River Drainage District, 115 Ark. 437, and in Gould v. Tolcmd, 149 Ark. 476.
    3. The work of the contracting engineers was approved and accepted bv the board of commissioners, by the county court, by the chairman of the State Highway Commission, and the State Highway Engineer, and in the absence of evidence of dereliction on their part, the presumption must be that they accepted and approved only .work that was properly done. 135 Ark. 353.
    4. Applying the rule in the Morgan Engineering Company case, supra, appellant is entitled, under the uncontradicted evidence, to judgment for one-half of 5 per cent, of the total estimated cost of constructing the improvement, and interest thereon at 6 per cent, from the date of the filing- of the estimates of costs, preliminary plans and specifications, in the county clerk’s office.
    5. If, however, Could v. Toland, supra, may be said to disapprove the rule in the former case, and the quantum meruit rule must be applied strictly to this case, then appellant has sustained his claim, by evidence which is not disputed, to judgment for the sum of $3,529.77, mth interest as stated above.
    6. There was no objection raised in the lower court, either before or at the trial, that there was no bill of particulars submitted with the complaint. The right to complain on that ground must be treated as waived. 31 Cyc. 583; 47 So. 23; 21 B. O. L., Pleading, § 44.

      J. P. Clayton and John W. Newman, for appellee.
    When the appellant made the preliminary survey and estimated the probable cost, and advised the commissioners to abandon the project, they inquired of him what it would cost to settle with him, and he said $1,500. Pie now asks for $3,667.75 on a quantmn meruit basis. ITe necessarily had to admit that the contract goes out upon the abandonment of the project. 106 Ark. 39; 119 Id. 188; 127 Id. 1; 232 S. W. 947. Since he admits advising the abandonment of the work, the contract may be considered as rescinded by mutual consent.
    The use of the contract as of evidentiary value in fixing the compensation of the plaintiff, as was done in the Morgan Engineering Company case, 115 Ark. 437, can no more be made applicable in this case than in the Gould v. Toland case, 149 Ark. 476. This compensation must be determined from evidence aside from the contract, and to that end the testimony as to the time consumed and the amount of work done, as well as the expenses incurred m doing the work, should be clear and definite, and not mere estimates and guesses at expenses, values and profits. We insist that a showing should have been made as indicated in the dissenting opinion in Gould v. Toland, supra.

   McCulloch, C. J.

The plaintiff, H. B. Carter, sued in the circuit court of Franklin County as the survivor of a copartnership, - composed of himself and another professional engineer, to recover for services performed for the defendant, Boad Improvement District No. 2 of Franklin county, preliminary to the improvement of a public highway in accordance with the purpose of the organization of the district, which was formed under general statutes. (Crawford & Moses’ Digest, § 5399, et seq.) The cause was transferred to the Chancery Court by agreement of the parties, and the plaintiff has appealed from a final decree for the recovery of a sum less than that claimed in the complaint.

Preliminary surveys, plans and specifications were furnished by the State Highway Commission as provided in the statute (Crawford & Moses’ Digest, § 5400), to be used in the organization of the district, but, after the organization had been completed by proper orders of the county court, the commissioners employed plaintiff’s firm to do the engineering work.

There was a written contract entered into between the commissioners and plaintiff’s firm of engineers to do all the engineering work, both preliminary and supervisory, for a compensation of 5 per centum of the actual cost of the construction of the road, 50 per centum of the entire amount of compensation to be paid when the plans and specifications were completed, and the balance in installments during the progress of the work. The form of the contract was precisely the same as that involved in other eases on this subject which have heretofore been before us for consideration. Morgan Engineering Co. v. Cache River Drainage District, 115 Ark. 437; Gould v. Toland, 149 Ark. 476; Bowman Engineering Co. v. Arkansas-Missouri Highway District, 151 Ark. 47. In each of those cases it was decided that this form of contract did not constitute a separate contract for services performed in preliminary work of the district, and it was also decided that the specification for payment of a given percentage when the plans and specifications were completed did not constitute a contract fixing the price for those services, but merely constituted a specification of the time of payment.

Upon the ascertainment of the estimated cost of the improvement according to the plans and specifications furnished by plaintiff, it was decided that the improvement could not be made, and the project was abandoned. There was no assessment of benefits ever made in this instance, and as the contract was premature and never became effective, the plaintiff’s right of recovery is not based on the contract, but his recovery must be on the quantum meruit. In this respect the case is controlled by Gould v. Toland, supra, rather than by the other cases cited. It was held, however, in Gould v. Toland, supra, that the method and amount of payment fixed by the terms of the contract, while not determinative of the rights of the parties, might be considered as of evidentiary value in determining the amount to be recovered for the services rendered. So the question left for us to determine is one of fact concerning the proper amount to be allowed to the plaintiff for the value of the services rendered by his firm.

The plaintiff sued for the sum of $3,667.75, which is one-half of 5 per centum of the estimated cost of the improvement. This claim was resisted by the commissioners of the district on the ground that the services rendered were not worth that sum, and that the claim was excessive. The proof was adduced before the chancellor in the form of oral testimony and properly brought into the record, and the chancellor awarded the plaintiff the sum of $7'50 as compensation for the services rendered.

We are of the opinion that the conclusion of the chancellor in fixing the amount of compensation was on a wrong basis and is erroneous, and that the allowance is inadequate as compensation for the services shown to have been rendered.

The conclusion reached by the chancellor, as expressed in his opinion ¡brought into the record, is that the proper allowance should be on a per diem basis of $25 for a period of thirty days. This is a wrong basis, for it fixes the compensation for one man for the given period, whereas, according to the undisputed testimony, the work was done by numerous employees of plaintiff’s firm, some of them doing field work and others office work. The conclusion of the chancellor takes no account of any profits to which the engineers were personally entitled to over and above the expense of doing the work, nor of their own skill and business ability in being able to properly supervise the work and construct adequate plans and specifications sufficient to guide the commissioners in preparing for the improvement contemplated.

Accepting the testimony in the light most unfavorable to the plaintiff, we are convinced that he is entitled to the recovery of a sum considerably in excess of that allowed by the chancellor.

The road which was to be improved was slightly over 16 miles in length, in Franklin County, and the improvement was estimated by the engineers to cost the sum of $146,709.97. In the estimate made and furnished by plaintiff it is shown that there was to be 10 acres of clearing and grubbing, 7,060 rods of fences to be moved, 67,320 cubic yards of earth embankment, a certain amount of loose rock excavation and a certain amount of solid rock excavation, and an amount of concrete work, drainage and bridge work. The estimate is itemized, showing the amount of the cost of each item of the work and the material.

Plaintiff testified himself as a witness and stated that the field work was done by his brother, who was an experienced engineer, and that the office work was done by Ms corps of assistants in the office, nine in number, who were engaged about thirty days in doing the office work. He testified in detail as to the method of doing the office work, making the estimates and calculations of the amount of work to be done of each kind, and the cost of the work and the material. He stated that the field work only consisted of running the lines and levels and notations of the acreage of clearing and rods of fences and the distances across streams, and that the •calculations of the cost of these things were made in the office.

Plaintiff did not claim to be personally familiar with the extent of the field work further than what was shown by the reports of Ms assistants in the field and his general knowledge of the character and topography of vthe country. He stated, as an estimate, that two or three weeks’ time was consumed in doing the field work.

Plaintiff’s brother, W. E. Carter, who had charge of the field work, and is shown to have been an experienced engineer, testified that two or three weeks’ time was consumed in doing the field work; that, after excluding the days of inclement weather, during which the expenses of the party continued, it took about ten days actual work to complete the field survey. He testified that the cost of labor amounted to $30 to $40 per day.

It is not stated by any of the witnesses whether an account was kept of the amount of days and hours consumed in doing the field work and cost of the work, nor was any witness interrogated on this subject. Plaintiff himself was not asked whether or not such an account was kept, and he was not asked to produce the account. One of the most material factors in determining the value of services of this kind is the actual cost and expense of doing the work. Gould v. Toland, supra. Therefore, it is highly important in investigations of this sort to require the person asserting the claim to produce evidence of such cost and expense, it being a matter within his knowledge and keeping. Miller v. Jones, 32 Ark. 337. It does not. accord with good business practices not to keep sucli an account. It would seem to be the natural thing for a firm of engineers in sending out a surveying party to have them make accurate, itemized reports of the amounts expended and also the time consumed in doing the work. In the present case, however, it appears that neither party insisted upon a production of evidence of the actual cost of doing the work and contented themselves with a trial of the issues upon their estimates of what it cost to do the work and what would be a fair value of the services. Plaintiff therefore is not to be denied recovery, since he was not called on to produce the account showing the cost and expenses. It becomes the duty of the court, notwithstanding this omission, to allow such sums as the evidence warrants as a fair compensation for the services performed.

The plaintiff’s case, so far as relates to the amount of the recovery, depends much upon his own testimony,' which, as before stated, was a mere estimate of the amount of time and money expended, though he was accurate in detail in stating the results of the work. Another1 witness, Mr. Pritchett, testified as an expert engineer and gave it as his opinion, based upon his general knowledge of the country and an examination of the plans and estimates, made by plaintiff, that one-half of the 5 per cent, commission on the total cost of construction would be a fair and just compensation for doing the work which was done by plaintiff’s firm.

The plaintiff estimated the actual cost of doing the work at the sum of $2,779.77. This figure was based upon his estimate of the amount of time consumed in doing the field work and the office work. Estimating this amount of cost and adding interest, which ran his estimate of cost up to $3,043.85, he thought that the sum of $623.90 would be a fair profit for himself and his copartner on a contract of that magnitude and involving that much service. "We are of the opinion, however, that plaintiff’s estimate of the cost of the field work is not justified by the facts as detailed by other witnesses, and that his estimate of the amount of time consumed in doing the office work was excessive. His estimate of the field work was that it cost $75 a mile, which would be $1,200, which left the sum of $3,579.77 as his estimate of the cost of doing the office work.

The testimony of plaintiff’s brother, Mr. W. E. Carter, shows clearly that the estimate of $1,200 for the field work is excessive. At any rate, we are justified in finding from the testimony of W. E. Carter that the cost of the field work was less than half that sum. He testified that his party was on expenses for two or three weeks at Horn $30 to $40 per day, and, accepting his lowest estimate, it would amount to an expense of less than $500. There is other testimony adduced by defendant which tends to show that the time and amount of labor consumed .in doing the field work was considerably less than that stated by witness W. E. Carter.

There was no other testimony than that of the plaintiff himself as to the amount of time consumed in doing the office work, but the estimate of thirty days for nine people on a road only 16 miles in length would seem on its face to be excessive. The testimony coming from the plaintiff himself, an interested party, the court is justified in weighing it with a degree of allowance.

We have reached the conclusion that it would be unsafe to place the estimate of the cost — being a mere estimate — at more than one-half of the amount included in the plaintiff’s own estimate. The estimate of the plaintiff for the profits and compensation for the skill of the engineers themselves was $623.90, and we do not think that this is excessive.

There is no way of determining with exactness what the allowance for compensation should be under the circumstances, and the most that we can hope for is a reasonable approximation of a just and fair amount.

We are of the opinion that under the evidence an allowance of $2,000 would be as nearly accurate as we can determine from the testimony. The decree will therefore be reversed, and a judgment will be rendered here for that sum.

It is so ordered.

Hart, J.,

(dissenting). Judge Wood and myself think the record in this case calls for an application of the maxim that the non-production of evidence clearly within the power of a party, creates a strong presumption that, if produced, it would be against him.

As pointed out in our dissenting opinion in Bowman Engineering Co. v. Ark. & Mo. Highway Dist., 151 Ark. 47, the adverse inference is one of fact and does not depend upon the demand of such evidence by the adverse party where the burden of proof is upon the party failing- to produce it. See case note in Ann. Cas. 1914-A, p. 909. Our own case of Miller v. Jones, 32 Ark. 337, is an illustration. In that case the trial court had erred in permitting the jury to compare the handwriting of several papers read in evidence with the plaintiff’s signature to other papers not in the case, yet the court was of the opinion that this should not cause the verdict to be disturbed. The reason given was that the plaintiff was a witness for himself, and did not deny the genuineness of the signature to the papers. The court said that this was a circumstance so significant as to allow no doubt that they were genuine. It does not appear from the record that the plaintiff was asked about the matter, still the court said that the maxim applied, and affirmed the judgment, notwithstanding the error in the admission of evidence.

Here Carter was the plaintiff, and, instead of producing his records and pay-rolls to establish his claim, he attempts to show in a general way what the survey cost him. While 'Carter was not compelled to introduce the records until required by legal process, yet he might-have done so, and settled the question in all probability beyond controversy. The burden of proof was on him, and his failure to do this is certainly a very strong circumstan-ce against him. Carter’s own testimony shows that a record of the survey ivas kept, and that there was a pay-roll of the field party. Carter testified that the estimates were made from the field notes of his brother. The field notes would undoubtedly have shown the number of days W. E. Carter and party worked. Again, the plaintiff Carter- testified that his brother, W. E. Carter, was in his employ and paid the men with him in the field. This shows a pay-roll. Carter then had in his hands records showing the number of days the field party worked, and the amount paid them. Therefore, the chancellor had a right to disregard his general statement and that of his brother that the field survey took two or three weeks, and cost something like between $30 and $40 per day. Especially is this true when we consider the testimony of the commissioners.

The road was a little over 16 miles long. One of the commissioners stayed with the surveying party two and a half days, and during that time they surveyed seven miles of the road.

Another -commissioner said that, during the progress of the survey, Carter told him that he would finish in five and a half days, and that he dici finish the next day. Other evidence showed that in places they never moved the stobs which had been placed there during a former survey by the State Highway Department, and that this survey cost $90.

The majority opinion condemns as extravagant the time and number of men Carter said it took to make the blue-prints and the estimates from the field notes. The contemplated road was a dirt one. It is not shown that there were any engineering difficulties. According to the evidence for the district, the sum allowed by the chancellor would have covered the expenses of the survey and allowed the engineer a liberal profit for supervision.

The conduct of the plaintiff in omitting to produce that evidence which was in his power and which rested peculiarly within his knowledge, raised a strong presumpti on that snob evidence would operate to his prejudice. It is an inference of fact and not a presumption of law. The rule spring’s from Lord Mansfield’s maxim that “all evidence is to he weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.”

The salutary effect of this rule is made apparent by the majority opinion where it is said thát the testimony of the plaintiff’s brother shows that his estimate of the field work is excessive, and that the plaintiff’s own evidence as to the number of men and the time it took them to make the estimates from the field-notes “would seem on its face to he excessive.”

The plaintiff’s own records could have put the matter at rest; and no reason is given by him why be did uol introduce them in evidence.


text:
    Hurst v. Munson.
    Opinion delivered March 6, 1922.
    1. Parties — substitution of plaintiffs. — Where certain persons claiming land brought suit to quiet their title, and subsequently sold and conveyed their interest in the land, it was proper, under Crawford & Moses’ Dig., § 1091, to permit their grantees to be substituted as plaintiffs.
    2. Taxation — record of delinquent lands. — Under Crawford & Moses’ Dig., § 10085, requiring the county clerk to record the list of delinquent lands with a notice and certificate of its publication, the list and certificate must be placed of record prior to the day of sale, otherwise the sale is invalid.
    3. Taxation — record of delinquent lands — conclusiveness of clerk’s certificate. — The clerk’s certificate of publication of the list of delinquent lands is the sole evidence of such publication.
    4. Taxation — certificate of publication of delinquent list— CONCLUSIVENESS. — Where the clerk’s certificate of publication of the list of delinquent lands shows on its face that it was made after the date of sale, it can not be shown by evidence aliunde that it was in fact placed of record before the date of sale, and that the dating was erroneous.

      5. Limitation of actions — tax-title—two-yeaks’ statute. — The plea of the two-years’ statute of limitations under a tax-title is not sustained where the owner of the land brought suit to quiet title within two years after the tax title was acquired from the Commissioner of State Lands.
    G. Limitations of actions — two-years’ statute. — Two years’ continuous possession is necessary to sustain title under the two-years’ statute of limitations (Crawford & Moses’ Dig., § 6947).
    7. Appeal and error — conclusiveness of chancellor’s finding.— A chancellor’s finding in favor of plaintiffs, on an issue of fact, is not against the preponderance of the evidence where the evidence is sharply conflicting, being confirmed to the testimony of plaintiff on one side and of defendant on the other.
    8. Quieting title — reimbursement of taxes. — Where a deed from the Commissioner of State Lands was canceled as a cloud upon plaintiff’s title, and defendant was reimbursed for taxes paid by him, it was not error to disallow to him the price paid to the State Land Commissioner, nor to refuse to allow reimbursement for taxes paid by defendants’ grantors where rents and profits received by such grantors were sufficient to cover their outlay for taxes.
    Appeal from Washington Chancery Court; Ben F. McMahan, Chancellor;
    affirmed.

      Sullins & Ivie, for appellant.
    1. The clerk’s certificate is conclusive as to the recitals therein. C. & M. Dig., % 10085; 55 Ark. 218; 68 Id. 248; 140 U. S. 634. And the appellees will not lie permitted, in their effort to show that the tax sale was not advertised for full two weeks as required by law, to show that the date, “May 27th,” was interlined after the sale was had. 81 Ark. 319.
    2. The date, June 16, 1915, in the attestation clause of the clerk’s certificate, is not conclusive of the date when the certificate was recorded. The attestation clause is not a part of the certificate. 2 C. J. 399, § 99; 47 Ark. 49. If an acknowledgement is in due form, it will not be invalidated by a mistake in the date, or for want of a date. 1 C. J. 828, § 160; 65 Ark. 51; i80 Id. 31, 36; 121 Id. 621. The language of the certificate in this case ought to be given, at least, as liberal construction as has been given in criminal cases, where dates alleged in indictments were involved, and, if that is done, tlie date mentioned in the attestation clause, being in conflict with the language used in the body of the certificate, will be treated, as it ought to be treated, as a mere clerical error. 65 Ark. 559; 75 Ark. 574; 93 Ark. 275.
    3. Appellees are barred by the two-years statute of limitations. C. & M. Digest, § 6947. A deed, describing and purporting to describe land, even though based on a void tax sale, is color of title. 80 Ark. 82; 77 Id. 324; 79 Id. 364. So far as appellees Munson and Gribson are concerned, this action was not commenced until they were substituted by plaintiffs. The substitution of parties plaintiff was tantamount to a new suit. 94 Ark. 277; 34 Id. 144.
    4. Appellees are estopped. Equity ought not to permit them first to employ or induce appellant to procure the title, and then, after hé has done so, to cancel or destroy it. 33 Ark. 465; 38 Id. 571, 580; 131 Id. 77.

      J. W. Grabiel and John Mayes, for appellees.
    1. The decree ought to be sustained for the reason, if for no other, that the conduct of the appellant in seeking to hold the land adversely to appellee, in- the face of his employment as an attorney and acceptance thereof, to assist appellees to extinguish the claim founded on the tax title, amounts to bad faith and a fraud. 30 Ark. 44; 21 R. C. L. 824-825, §§ 9-10; 81 Ky. 23; 1 M’Cord, Eq., 524; 63 Me. 17; 61 S. E. 806; 14 N. J. Eq. 451; 116 Gra. 396; 108 Mo. 378; 101 U. S. 494; 11 How. .233.
    2. The certificate of the clerk shows on its face tha t it was not recorded before the sale. Appellant correctly states that the record of the certificate is conclusive as to the recitals therein, and that under the law it is not permitted to impeach the record thus made. Where the record and certificate is not made before the sale, the sale is void. 141 Ark. 629; 11 Am. & Eng. Enc. of L., 2nd Ed., 584.

      3. The statute requires two full weeks’ notice. 55 Ark. 192; Id. 213; 68 Id. 426. The evidence shows that the date, “May 27,” was interlined in the record some time after this suit was commenced. It was not competent to show by newspaper, or other evidence alnmde that the publication was made otherwise than as shown by the record. 68 Ark. 248; 140 IT. S. 634.
    4. The limitation statute invoked by appellant, C. & M. Digest, § 6947, applies only to an action for the recovery of possession. 30 Ark. 44. And the time is reckoned from date of the State’s deed under which the defendant claims title or possession. 78 Ark. 7. Actual possession is necessary to set the statute in motion. 67 Ark. 411.
    It is an admitted fact that the action was commenced within the two years. Appellant’s contention that the action was not begun as to the appellees until the date they were substituted as plaintiffs is not tenable. Kirby’s Dig-., § 6001; 20 Enc. PI. & Pr. 1062-1063. Where there is a privity of interest growing out of a transfer of the right or subject-matter of litigation during the pendency of the action, substitution of parties is not a change of the cause of action, but only in the nominal parties. 90 Ark. 430.
   McCulloch, C. J.

The subject-matter of this controversy is a tract of land, containing 55 acres, in Washington County. Appellees held under the original title, having purchased and received a conveyance from the heirs of one Deering, who formerly owned and actually occupied said tract of land as a farm. Appellant claims title under a forfeiture to the State in the year 1915 for the taxes of 1914.

There was a forfeiture to the State, and on October 30, 1917, Mrs. J. T. Nelson purchased the land at $1.25 an acre from the State Land Commissioner and received a deed of conveyance. She subsequently sold and conveyed her interest to J. M. Bishop and George Appleby, who in turn conveyed to appellant.

The present action was instituted in the chancery court of Washington County on October 3, 1919, 'by the grantors of appellants Munson and Gibson, heirs at law of the original owner, Deering, against appellant and Bishop and Appleby.

In the complaint it was alleged that the plaintiffs were the owners and in actual possession of said land, and that the defendants were claiming title under a tax sale, which was alleged to be void and a cloud upon the title of the plaintiffs. The prayer of the complaint was that the tax sale and the conveyance from the State Land Commissioner to Mrs. Nelson be canceled as a cloud on the title of the plaintiffs.

The plaintiffs in the action conveyed the land to appellees by deed dated January 20, 1920, and at a later term of the court there was an order made upon the application of the appellees, Munson and Gibson, substituting them as plaintiffs in the action in lieu of the original plaintiffs. The order of substitution was made pursuant to the statute, which provides that where the right of a plaintiff is transferred during the pendency of an action, said action “may be continued in his name, or the court may allow the person to whom the transfer or assignment is made to be substituted in the action.” Crawford & Moses’ Digest, § 1091.

The attack of appellees and their predecessors in the action on the validity of the tax sale is based, among other things, on the ground that the clerk’s certificate of the publication of the list of delinquent lands was not recorded as required by statute (Crawford & Moses’ Digest, § 10085) before the day of sale. Appellant in his answer denied that this defect existed and alleged that the certificate was duly made and 'recorded before the day of sale. The record of the certificate was introduced and it reads as follows:

“I, George Appleby, clerk of the county court within and for the above named county and State, do hereby certify that the foregoing list of lands, lots and parts of lots (on page 129 to page 173 inclusive) returned delinquent for the year 1914, together with the tax, penalty and cost due thereon, was published weekly for two weeks, prior to the second Monday in June, 1915, in the ‘Arkansas Sentinel’ and once in the Fayetteville Democrat ‘Daily’ and the Fayetteville Democrat ‘Weekly’ published in the said county, the dates of the publication being May 27, June 3, and June 10, 1915, and were sold according to said notices, said sale begins on Monday, June 14, 1915.
“Witness my hand and seal of office this June 16, 1915.
“Gteo. Appleby,
“County Clerk.”

Appellant introduced a witness who was deputy clerk at the time of the tax sale in 1915, and he testified that he spread on the record the published delinquent list with the form of the clerk’s certificate attached, leaving a blank for the date and the signature of the clerk, and that Appleby, the clerk, filled in the date and signed the certificate on June 16, 1915, which was two days after the date of the sale.

This court has decided that the certificate required by the statute cited above must be placed of record prior to the day of sale, otherwise the sale is invalid. Logan v. Eastern Arkansas Land Co., 68 Ark. 248; Hunt v. Gardner, 74 Ark. 583. We have also held that the clerk’s certificate thus recorded is the sole evidence of the publication of the list. Hunt v. Gardner, supra; Cooky. Ziff Colored Masonic Lodge, 80 Ark. 31. The record being the sole evidence, the facts cannot be proved by evidence aliunde.

We decided in Cook v. Ziff Colored Masonic Lodge, supra, that a failure to date the certificates did not render it void, and that in the absence of proof the presumption would be indulged that the clerk had properly performed his duty by placing the certificate of record before the date of sale; but in the present ease no presumption can be indulged, 'because the certificate affords affirmative evidence on its face that it was not placed of record until after the sale. In addition to the date of the certificate, its language affords affirmative evidence that it was placed of record after the date of the sale, for it recites that the lands described in the notice “were sold according to said notices.” Earl v. Harris, 121 Ark. 621.

While the dating of the certificate is not essential to its validity, in this case it bears its date on its face and contains other recitals showing that it was made after the date of sale, and the certificate itself is conclusive, and it cannot be shown by other testimony that it was in fact placed of record before the date of sale, and that the dating was erroneous.

Appellant also pleaded the two-years’ statute of limitation under tax sale. The plea is not sustained by the proof for the obvious reason that this action was «nstituted within two years after the date of the conveyance of the land by the State Land Commissioner to Mrs. Nelson, and actual and continuous possession for a period of two years is essential to confer title by limitation under the statute. The running of the statute was arrested by the commencement of this action, and it did not run against appellees, who were substituted under the statute as plaintiffs, they having, during the pendency of the action, succeeded to the rights of the original plaintiffs.

Moreover, it does not appear that appellees or their grantor was in possession of the land for two years at any time. They were not in possession at the time of the commencement of the suit, the proof in the case being that the Deering heirs were in possession during the summer and autumn of the year 1919, the appellees then being in possession as tenants of the Deerings. Appellant’s grantors, Bishop and Appleby, held possession of the land and cultivated it by tenants during the year 1918, but they lost possession in 1919 and never regained it. The land laid out and was uncultivated during the year 1919 until August or September, when appellees, as tenants under the Deering heirs, took possession and began cultivation. So in any view of the case appellant is not successful in maintaining his plea .of limitation.

Appellant filed a cross-complaint against appellees, in which he alleged that they had induced him to purchase the land from Bishop and Appleby, and that they are estopped to dispute his title. Appellees answered the cross-complaint and denied the allegations upon which the claim of estoppel was based. Appellant testified that appellees authorized him to purchase from Bishop and Appleby their interest under the tax sale and promised to pay him $600 for a conveyance after he had secured a conveyance to himself from Bishop and Appleby. He testified that, in reliance upon the promise and the authorization of appellees, he purchased the land from Bishop and Appleby; that appellees then refused to comply with their promise and obtained a conveyance from the Deering heirs, who lived in Texas. Both of the appellees testified in the case regarding their dealings with appellant and their purchase of the land from the Deering heirs, and it appears that they acted in concert in all that they did. They testified that, after they had begun negotiations with the Deering heirs looking to the purchase of the land, they ascertained that there was an outstanding tax title, and that they employed appellant as an attorney to examine the title and give them legal advice concerning its validity.

Each of the appellees deny that they ever entered into an agreement with appellant to authorize him to purchase the tax title from Bishop and Appleby, or that they promised to pay him $600 or any other sum for the tax title so obtained. They testified that they employed appellant to assist them in securing a marketable title to the land, and that, after appellant had purchased the tax title from Bislióp and Appleby, lie proposed to sell it to them,' but that they declined to purchase unless a conveyance could be secured from the Deering heirs. They subsequently purchased from the Deering heirs and paid $1,500 in cash for a deed. There was a sharp conflict in the testimony, and the chancellor found in favor of the appellees. It does not appear that the finding of the chancellor is against the preponderance of the evidence. The testimony on this issue is confined to that of appellant himself on the one side and the two appellees on the other.

It is also contended that the chancellor failed to allow appellant a sufficient sum in reimbursement for taxes paid. Of course, appellant was entitled to reimbursement for all the taxes assessed against the land and paid by him. He was not entitled to reimbursement for the amount Mrs. Nelson paid the State as purchase price for the commissioner’s deed. The court allowed appellant the taxes paid for the years 1918, 1939 and 1920, but the court failed to allow taxes for 1917 or the taxes for the year 1914, for which the land was sold. It is not shown what the reasons of the court were for failing to make this allowance, but there is evidence to the effect that ap-' pellant’s grantors, ¡Bishop and Appleby, were in possession during the year 1918 and received as much as $150, rents and profits, which was more than sufficient to cover any outlay theretofore'made by them in the payment of taxes. Appellant himself only paid the taxes for the years 1918, 1919 and 1920, and the court awarded him reimbursement for the amounts so paid.

Decree affirmed.