author:
Smith, J.
      ■ Smith, J., McCulloch, C. J.,

text:
    Carter v. Bradley County Road Improvement Districts 1 and 2.
    Opinion delivered October 16, 1923.
    1. Highways — employment of state highway engineer. — Where a contract employing the State Highway Engineer as the engineer of a road improvement was invalid as against public policy, it is immaterial that the contract stipulates that it should not become effective until he executed a bond, and that the bond was not executed until after his successor as State Highway Engineer had qualified.
    2. Contracts — disqualification from public policy not waived. —Disqualification of a party to enter into a contract on ground of public policy cannot be waived by the other parties to the contract.
    3. Highways — oath of state highway engineer. — Crawford & Moses’ Dig., § 5178, providing that the State Highway Engineer shall take oath that he will not become interested, directly or indirectly, in any contract for the construction of any public highway, amounts to a prohibition against his entering into such a contract.
    4. Highways — employment of state highway engineer. — Where a contract employing the State Highway Engineer as en'gineer of a road improvement district was entered into while he held that office, and he predicates his right to recover on that contract, such contract being within the prohibition of Crawford & Moses’ Dig., § 5178, it is immaterial that his services under the contract were performed after he had ceased to be the State Highway Engineer.
    5. Work and labor — recovery on quantum meruit — prohibited contract. — There can be no quantum meruit recovery for services where plaintiff cannot establish -his case without the aid of a contract prohibited* by statute.
    6. Work and labor — quantum meruit. — The fact that a contract employing the State Highway Engineer as engineer of a road improvement district was tentative, because the assessment of benefits in the district had not been made, does not allow of recovery on quantum, meruit basis for' services performed * under the contract, where it was Void when made as violating Crawford & Moses’ Dig., § 5178.
    7. Highways — oath of state highway engineer. — The oath of the State Highway Engineer, prescribed by Crawford & Moses’ Dig., § 5178, that he shall not be interested in a contract for construction of any public highway applies to highways provided for by special acts as well as those to be built under the general law.
    8. ' Highways — public policy. — Though a special act tendering the State Highway Engineer the position' of engineer for a certain, road district would have governed his relationship with that particular district, had he accepted the position, it did not change the public policy implied from Crawford & Moses’ Dig., ' § 5178, prescribing the State Highway Engineer’s oath and prohibiting him from becoming engineer for any other road district.
    Appeal from Bradley Chancery Court; E. G. Hammock, Chancellor;
    affirmed.

      Coleman, Robinson & House and 1~>. K. Hawthorne, for appellant. ■
    Appellees’ attack upon the validity of the contract is not justified by the facts and circumstances under which it was entered into between Carter and the commissioners of the road improvement district. In the light of these facts and circumstances, there is nothing in Carter’s oath of office, act 302, Acts 1913, § 10, to prohibit the contract. If, ill fact, the contract was prohibited by the oath, and therefore void, Carter is nevertheless entitled to recover upon a quantum meruit.

    If the contract was not binding on the district, the mere fact that it was prohibited would not prevent a recovery quantum meruit, where, by its terms, the contract was not to take effect until the relationship out of which the prohibition grew had been dissolved, and where no service was performed until after that event. 232 S. W. 434; 235 S. W. 339; 238 S. W. 69; 37 N. E. 96. If parties enter into a contract that is malum prohibitum, and one of the parties has done work thereunder which the other has accepted, and he can make out his cause of action without reference to the illegal contract, he is entitled to recover the value of the work done and accepted. 6 R. C. L. 82!; 29 Ark. 386; 91 Ark. 209; 16 Wall. 483; 33 Fed. 440; 44 Ark. 74; 106 Ark. 568; Greenwood on Public Policy, 7; 41 Pac. 133; 45 N.' W. 242; 60 Ga. 222; 109' Calif. 140; 26 Neb. 149; 33 Mich. 61.

      J. C. Clary and R. W. Wilson, for appellee.
    Appellant is barred from any recovery at all, because his claims are either founded upon the contract or grew out of it, and that contract is void because it affects public service, and is against public policy. 6 R. C. L., par. 136, pp. 730-31; 47 Ark. 384; 81 Id. 41-45; 34 Id. 765; 81 Id. 602; 6 R. C. L. 712; 124 Ark. 6; 146 Id. 61-64; Elliott on Contracts, vol. 2, §§ 649, 706; 24 L. R. A. 206. It is prohibited by the statute. 73 Am. St. Rep. 31; 124 Ark. 6; 7 Wall. 542, 18 L. Ed., 244; 35 Am. St. Rep. 793; 29 Ark. 388; 146 Id. 63.
    The fact that Carter did not execute the bond required by the contract until after the appointment and qualification of his successor, does not affect the case, for when he did execute it and it was approved, the contract became retroactive and dated back to the time the contract was executed.
    The question as to when the contract became binding is immaterial, because the act which prescribes the oath cf the Highway Engineer prohibits officials from becoming interested, either directly or indirectly, in any confract during their connection with the Department of the State Highways and Improvements, and makes no mention of when such a contract becomes effective or binding.
   Smith, J.

Appellant H. R. Carter filed his complaint in the Bradley Chancery Court, and alleged as his cause of action the following facts: That Bradley County Road Improvement District No. 1 was organized under act 237 of the Acts of 1919 for the purpose of constructing and improving certain roads in Bradley County, and that on March 19,1919, the commissioners of said district, therein named, entered into a written contract with him whereby he was employed as the engineer of the district. That, after the execution of the contract, a map of the district was prepared and certain preliminary surveys made, but full performance of the contract was prevented by litigation instituted by landowners in the district, and by act 74, passed at the 1921 session of the General Assembly, repealing act 237 of the Acts of 1919, and vesting the chancery court of Bradley County with jurisdiction to adjudicate and adjust the claims of all parties against the district arising out of contract or otherwise, and providing that all claims not so presented within six months should be barred. Pursuant to this act this suit was filed, the contract being made ’an exhibit to the complaint.

The complaint sets out the terms of the contract and recites the services which were performed under the authority thereof, and compensation was prayed therefor, pursuant to its provisions on that subject.

The contract provided that all plans should be prepared and work done by Carter in accordance with the regulations prescribed by the Federal Government and the State Highway Department, in order that the district might be entitled to all contributions of road aid funds that might be available from the United States or the State of Arkansas, and that in all instances, when required by law or order of the commission, the plans or any details thereof should be submitted to the State Highway Department for its approval. It was provided that if any of these duties were not performed by the engineer, the State Highway Department should have the right to terminate the contract, in which event Carter’s compensation should be the amount earned by him at the time of its termination, and the contract coritained stipulations governing time and terms of payment. There was also a provision that, if the improvement was not completed within a time limit of eighteen months, the district should pay Carter the sum of $10 per day for each day beyond that time as additional compensation. The contract further recited that it was made pursuant to the regulations of the State Highway Department, as authorized by act 105 of the Acts of 1917, and that the contract was made out in the form and contained the provisions approved by the State Highway Commission. The contract was duly approved by the Commission of the State Highway Department.

Performance is alleged of all conditions imposed on the engineer by the contract, and the sums of money are stated which are alleged to be due under the contract, and judgment therefor was prayed.

A similar case was stated against Road Improvement District No. 2 of Bradley County, and, as the facts are identical, the cases are briefed as a single one, and we shall so treat them.

Testimony was taken showing that Carter rendered services under his contract of value to the district.

Certain owners of land within the district made themselves parties and filed pleadings, the recitals of which need not be stated, as they were overruled by the court below. An answer was then filed containing certain allegations raising issues which have been decided against them. Bradley County Rd. Imp. Dists. No. 1 and 2 v. Jarratt, 144 Ark. 260; Johns v. Road Imp. Districts of Bradley County, 142 Ark. 73.

The answer, however, put in issue all the allegations of the complaint, denied the contract’s execution and validity, and denied that services performed thereunder were of value, and alleged that the contract was void as contravening public policy for reasons hereinafter appearing.

In a written opinion the court below made the finding that the contract sued on contravened public policy, and dismissed the complaint, and this appeal is from that decree.

The testimony established the following facts: Carter was appointed State Highway Engineer and served a term expiring in 1915. He was reappointed in 1915, 1917, and 1919. At the beginning of his last term, about January 1,1919, he took the oath of office prescribed by the statute. 'Carter tendered his resignation in February, 1919, but because of the inability of the highway commission to secure a successor he agreed to serve until a successor could be secured, and he did serve until the 1st of April, 1919, at which time his successor was appointed and qualified. Carter discharged the duties of State Highway Engineer during the month of March and drew from the State pay for services for the entire month. ■ j

The contract contained a stipulation to the effect that it should not become effective until Carter had made and filed with the commissioners of the road improvement district a bond for the faithful performance of the contract upon his part. This bond was not filed until the 1st of June, and Carter claims no compensation for services prior to that time.

For the reversal of the decree of the court below it is insisted, first, that the contract does not fall within the terms of the statute prohibiting the State Highway Engineer from being interested in road building contracts; second, that, if prohibited, the contract was nevertheless valid, because, by the intention of the parties as well as by the express stipulation of the contract itself, it was not to take effect, and did not take effect, until the conditions were such that Carter was in a position to make a contract with the road district; third, that, if’ the contract was void because prohibited', Carter is-, entitled to recover quantum meruit, because the malum prohibitum had been raised before anything was done-under the contract; fourth, because, at the date- of - the contract, no assessment of benefits had' been- made by the-road' district, and the district was not therefore in- a position to make contract for engineering services covering the construction of the- road, Are- any- of; these? positions correct;?;'

The official oath taken by Carter appears at section 5178, C. So M. Digest, and reads as follows:

“All officers and employees of the Department of State Lands, Highways and Improvement shall take such oath of office as is provided in the Constitution, and in addition thereto they shall take and subscribe the following oath before entering on the discharge of their duties: ‘I do solemnly swear, or affirm, that I am not now interested in nor will I become interested, either directly or indirectly, during my connection with the Department of State Lands, Highways and Improvements, in the sale or lease of any lands or timber, water or mineral rights of any kind, either to or from the State; neither am I interested in nor will I become interested, otherwise than as an official of «the State, in the location or approval of axiy public road or any other public improvement in this State, nor ixi any contract or arrangement for the construction or maintenance of any public road or highway or other improvement, nor in the provision of supplies or materials therefor, nor in the appointment of any person to any position in connection therewith; neither will I ever use any information or influence I may have by reason of my official position to gain any pecuniary reward or material advantage to myself, nor give away such ixiformation or influence that it may be so used by others. So help me God.’ ”

The duties of the State Highway Engineer are defined in section 5207, C. So M. Digest, as follows:

“The State Highway Engineer shall make such surveys, investigatioxis axxd inspections, and prepare such maps, plans, specifications, estimates and reports, and do such other technical work as may be required by the department. He shall, under the direction of the Commissioner of State Lands, Highways and Improvements, perform such other duties as may be required by law and may be proper and convenient for carrying out the purpose of this act.”

It appears, from the recital of facts in the opinion in the case of Road Improvement Districts Nos. 1 and 2 v. Jarratt, supra, that the commissioners of these districts made and perfected their organization in the office of the State Highway Commission, and that they thereafter called upon the State-Highway Department to have preliminary' surveys of the roads made, but this request was not complied with because funds to defray tihe expense were not available. The commissioners of the road districts were advised that they would have to employ an engineer anyway who could make the survey under the direction of the State Highway Department and file the surveys, plans and specifications with it for approval. That three engineers applied before the board for the position of engineer, one of whom was Carter. -Carter did not tell the commissioners that they would have to employ him, or use words to that effect, but he was employed and entered into written contract with the districts for engineering services, including preliminary as well as final surveys, and for supervision of the construction work, for an agreed fee.

The facts just stated and others recited in the opinion in the Jarratt case, supra, throw light on the .circumstances under which the contract here sued on was made and something of the public policy involved in the engineer’s oath and in the statute defining his duties. The department was called on for preliminary plans, which would have been made by it had funds therefor been available. Had the plans been so made, they would have been made under the direction of Carter. Under the circumstances the department did not make them, and the commissioners of the road districts proceeded to contract with the engineering officer representing the department, not only to make the preliminary plans, but to do the entire engineering work. The contract entered into was prepared on a form furnished by the highway department, and, as msuch of it is technical, it is fair to assume that the highway engineer had been instrumental in its preparation. Such, at least, were his duties. Secs. 5207, 5208, C. & M. Digest. And finally, after the negotiations had been completed between Carter and the road commissioners, the contract was executed and then approved by the highway commissioner, whose adviser in such matters Carter was.

It is true the contract contained the stipulation that it should not become effective until Carter had executed a bond; and it is also true that this bond was not executed until after Carter’s successor in office had qualified. But this stipulation was put into the contract at the time it was made and was a part of it. Carter had the power, at his own volition, to make it effective by filing the bond; and if his act in making this contract contravened public policy, the stipulation postponing the time when it should become final was a mere waiver of its invalidity by the road commissioners as contracting parties. Their signing was unqualified. So far as they were concerned, they became bound when they signed, and when Carter filed, at his pleasure, the -bond called for by the contract, it related back to the time of its execution, which, as has been said, was during his employment as State Highway Engineer.

It is settled law that if parties to .a contract are disqualified, from considerations of public policy, from contracting, they cannot, by any subterfuge, waive the disqualification, the one in favor of the other. As was said in the case of Hall v. Coppell, 7 Wall. 542: “Whenever the illegality appears, whether the evidence comes from one side or the other, the disclosure is fatal to the case. No consent of the defendant can neutralize its effect. A stipulation in the most solemn form to waive the objection would be tainted with the vice of the original contract, and void for the same reasons.” See also Seitz v. Michel, 12 A. L. R. 1060.

We think the doctrine announced in the case of Tallman v, Lewis, 124 Ark. 6, is applicable here. Tallman was a commissioner of a drainage district, and had been employed by the board of commissioners to supervise the construction of the drainage ditch. The law under which he was proceeding did not provide that any contract made by a commissioner with the drainage district should be void, but it did require the commissioner to make oath that he would not, directly or indirectly, be interested in any contract made by the board. We there said that the requirement that the oath to be taken amounted to an express prohibition to him, and that to permit a recovery upon rights growing out of such a contract would, in effect, abrogate the statute. So here the oath of the highway engineer must be treated as a prohibition against entering into contracts whereby he becomes interested, directly or indirectly, in any contract for the construction or maintenance of any public road. The contract sued on was one under which, if performed, Carter would have earned large sums of money.

It is true, Tallman performed services while he was still a commissioner, and Carter sues for services rendered after he ceased to be State Highway Engineer; but that difference is unimportant, as Carter predicates his right to recover for the services upon a contract entered into while he held that office. He alleges no right of recovery except his contract. He predicates his right of recovery here, as he did here in the Jarratt case, supra, upon a contract. He makes no claim that there was more than one contract, and while he did render the services after he ceased to be State Highway Engineer, he tendered them under the written contract, and he has, at all times, and does now, assert his rights thereunder, and he must prove his contract as an essential part of his right to recover.

We think it appears, from what we have said, that the contract was within the inhibition of the statute, and that the provision postponing the time when it should become effective adds nothing to its validity.

Carter cannot recover quantum meruit. In the case of Martin v. Hodge, 47 Ark. 378, the court, after holding that every contract made for or about anything which is prohibited by statute is void, though the statute does not declare it so, proceeded, through Justice Battle, to say: “The test to determine whether a plaintiff is entitled to recover in an action like this or not is his ability to establish his case without any aid from an illegal transaction. If his claim or right to recover depends on a transaction which is malum in se or prohibited by legislative enactment, and that transaction must necessarily be proved to make out his case, there can be no recovery. Eberman v. Reitzel, 1 Watts and S., 181; Phalen v. Clark, 19 Conn. 421; Armstrong v. Toler, 11 Wheaton 258.”

In Wood v. Stewart, 81 Ark. 41, the court said: “Whenever a plaintiff comes into a court of equity and must rely, as the foundation of his relief, upon a contract which is illegal, he proves himself out of court, for the court will not lend its aid to enforce such a contract. The bare statement of his grounds for relief bears on its face the death-wound to his cause of action. It is not essential that the contract should concern an .act criminal in its nature before the court will refuse to enforce it. If it is a contract for the doing of an illegal or immoral thing, or one contrary to statute or public policy, whether it be criminal or not, a court of equity will not enforce the contract. Story’s Eq. Jur., secs. 296, 296a; Pom. Eq. Jur., secs. 929-939; Mendel v. Davies, 46 Ark. 420; Woodruff v. Berry, 40 Ark. 251; McMullen v. Hoffman, 174 U. S. 639; Atcheson v. Mallon, 43 N. Y. 147.” See also Pinney v. First National Bank of Concordia, 1 A. & E. Cases, 331.

The case of Berka v. Woodward, 125 Cal. 119, 73 Am. St. Rep. 31, is a very instructive and well-considered case, and one frequently cited and quoted from. We quote from it as follows: “Nor in such cases does it matter whether the contract has been partially or wholly performed, or whether the consideration has passed or not. ‘The test’, says Judge Duncan in Swan v. Scott, 11 Serg. & R. 164, ‘whether a demand connected with an illegal transaction is capable of being enforced at law, is whether the plaintiff requires the aid of the illegal transaction to establish his case. If the plaintiff cannot open his case without showing that he has broken the law, the court will not assist him, whatever his claim ixx justice may be upon the defendant. ’ And this must be so, for, while as a matter of private justice between individuals it would be but fair that one under suoh an illegal contract should restore the consideration or should make the payment, the rights of the public are superior to any such private considerations, 'and the public’s'right is that the fountains of justice shall remain unpolluted; that no court shall lend its aid to a man who- grounds his actions upon an immoral or illegal act. Therefore there is no place for equitable considerations, presumptions,, or estoppels. Fowler v. Scully, 72 Pa. St. 456, 13 Am. Rep. 699. Ex turpi causa non oritur actio. Whenever such a contract comes before the court, the action must fail, and the parties will be left in the situation in which they may be found.” See also Norbeck & Nicholson v. State, Ann. Cas., 1916-A, 239; Levinson v. Boas, 11 A. & E. Cases 661.

What we have just said is conclusive also of appellant’s fourth propositioxx, that the contract, at best, was tentative, because the assessment of betterments had not been made by the improvement district. We have held that contracts, except for preliminary expenses, are tentative until an assessment of benefits shows that the cost of the improvement will not exceed the benefits, and in those cases permitted a recovery quantum meruit for preliminary expenses where contracts covering the entire cost were unenforceable because they were prematurely made. Appellant seeks to invoke the doctrine of those eases .here. But the circumstance which distinguishes those cases from the instant case is that there the contracts .were unenforceable only because they were prematurely made, while here the contract was void when made because it contravened public policy.

We conclude therefore that the court below properly dismissed the complaint as being based upon a contract which was void because it contravened public policy.

Decree affirmed.

McCxjlloch, C.J., and Humphreys, J., dissent.

■ Smith, J.,

(on rehearing). It is urged in support of the motion for rehearing that section 5178, C. & M. Digest, applies only to those highways which are being ‘constructed under the act of which that section is a .part, and does not apply to highways being constructed ‘•under special acts. We do not think so-. The plain language of the statute is against that view. The oath ^prescribed by law and taken by the State Highway Engineer was “that he was not -interested in and would not become -interested i-n the location or approval of any .public road or other public improvement, nor any con-bract or arrangement for the construction or mainten-ancé -o-f any public road or highway or other improvement,” and it would, of course, be unimportant whether the road or improvement was being constructed under a general or a special law, as the statute makes no such distinction.

The argument is renewed that Carter should be allowed to recover quantmn meruit, as he does not seek to recover on the contract. It is true the engineer does not use the provisions of the contract in regard to -his compensation to measure the compensation he should receive, and that he asks only such compensation as he would be entitled to receive had there been no provision in the contract on the subject of compensation. But the answer to that argument is that his right to any compensation depends on the contract. He does not show any right to recover anything except by proving this contract. There was never but one contract, and it provided, not only for the compensation, but for the employment. The only contract Carter had was the one sued on and made an exhibit to his demand, and he must prove this -contract to show that he was not a mere volunteer in performing the services for which he sues.

It is argued that we should not hold the contract in question void as against public policy, for the reason that on March 11, 1919, while Carter was filling the office of State Highway Engineer, the General Assembly passed an act numbered 247, approved on that day, which named Carter as engineer for the Northern Road District of Arkansas County.

It may be conceded that the General Assembly has the right to declare the State’s public policy, and that the General Assembly had the right to name Carter as the engineer for the improvement district created by the special act; but it must be presumed that there were special reasons for doing so, as this was a special act. This special act No. 247 did not purport to amend the general law unde.r which Carter was discharging the duties of State Highway Engineer.

Under Act No. 247 Carter was given ninety days in which to accept the appointment tendered by the act'; but that act would have governed his relationship to that special district only, and did not otherwise purport to absolve him from the obligations of his oath or from the penalty for its violation prescribed by section 5179, C. & M. Digest.

. After a careful consideration of all the questions raised in the brief for rehearing we adhere to the view that the contract in question was contrary to public policy, and any recovery under it was properly denied. The motion for rehearing is therefore overruled.

McCulloch, C. J.,

(dissenting). In a legal sense, Carter had no contract with the road improvement 'district, for the written engagement was entered into before any assessment was made, and it was premature and unenforceable. Recovery for services performed is not sought under the terms of a contract, but on a qumitum meruit. The writing is identical with the one discussed in the numerous decisions of this court, and it did not constitute a contract even for preliminary work. It purported to be a contract for all of the engineering work, both preliminary and constructive, and the specification of preliminary work could not be separated. Cherry v. Bowman, 106 Ark. 39; Thibault v. McHaney, 119 Ark. 188; Gould v. Toland, 149 Ark. 476; Bowman Engineering Co. v. Road District, 151 Ark. 47; Carter v. Franklin County Rd. Dist., 152 Ark. 302.

In all of the cases cited above, and others, we held that a recovery could be had only on a quantum vieruit basis. The premature contracts were disregarded entirely, except that they were, to some extent, evidentiary in the nature of admissions as to the value of the services actually performed.

The case of Tollman v. Lewis, 124 Ark. 6, is controlling to the extent that it holds that one who performs services while under statutory inhibition cannot recover even on a quantum meruit, and the opinion in the case distinguished it from former decisions (Spearman v. Texarkana, 58 Ark. 348; Frick v. Brinkley, 61 Ark. 397; Smith v. Dandridge, 98 Ark. 38) where the contracts were void, not under prohibiting statutes, but merely because contrary to public policy. But in that case (Tallman v. Lewis, supra) the person seeking recovery was laboring under a. disqualifying statute at the time he performed the services. In the present case Garter was in no such condition when he performed the services. He was then free to contract with the road district, and his situation was the same as if he had performed the services under a new contract without taint of violation of statute or public policy, or as if he had no contract. In fact, he had no contract with the road district, for, as before stated, the written engagement was premature and unenforceable, even if otherwise valid.

I am therefore unable to see how Carter can, under settled principles, be denied recovery for • his services merely because his original engagement with the road district fell under the ban of public policy. The majority in their opinion expressly repudiate this distinction and do so on the ground stated that Garter predicates his right to recovery on the illegal contract. Such is not the case, however, for the recovery is sought on a quantum meruit basis- A valid contract is not essential to recovery on that basis. There is no enforceable contract, and, even though the writing was set forth in the pleadings, recovery was sought for the actual value of the services performed. Recovery should not-be denied merely because an alleged contract was unnecessarily set forth in the complaint, for it is the duty of the court to give relief to which the party is entitled under the pleadings and proof, regardless of any mistaken allegation of immaterial matter. A party has the right to abandon an immaterial or erroneous allegation where the relief sought is not inconsistent with it. The complaint in the case seeks relief on a quantum meruit, and that relief is not inconsistent with the allegations.

The very case on which the majority seem to mainly rely (Berka v. Woodward, 125 Cal. 119) is contrary to the conclusion they have reached. . In that case’ the court said: “When such a contract has been executed without objection and actual benéfits have been received under it, all parties acting in entire good faith, the law is maintained and ends of justice subserved by disregarding those parts of the expressed agreement wherein advantage might have been taken, and allowing-compensation merely for the reasonable value of the benefits received under it. Consideration of public policy does not require the doing of less than this.”

There is no uncertainty in the rules of law or in the principles of equity under which a recovery on a quantum meruit is permitted. They have found expression in many of the decisions of this court. The term “quantum meruit,” literally interpreted, means “as much as he deserved,” and is broad enough to permit recovery, without a valid contract, for services performed and accepted. It is peculiarly a doctrine of equity, whether invoked at law or in equity, and the ends of justice are not served by a refusal to apply it on the ground that the original contract was void. ,

Mr. Justice Humphreys concurs.


source: Caselaw Access Project

author: McCulloch, C. J.

license: Public Domain

text:
    Gould v. Sanford.
    Opinion delivered October 23, 1922.
    1. Statutes — public policy.- — Employment of attorneys to prepare a bill for a legislative enactment does not contravene any rule of public policy.
    2. Contracts — public policy. — Public policy, in regard to the making of contracts, is what the lawmakers themselves declare it to be.
    3. Improvement districts — justification of special assessments. —The only justification for the imposition of special assessments is the fact that special benefits are to be enjoyed.
    4. Improvement districts — determination of benefits.' — It is generally a question for the Legislature to determine whether or not benefits will accrue from a local improvement, and its determiriation of the question should be respected by the courts unless it is on its face unreasonable and arbitrary.
    5. Highways — service performed before creation of district.— The fact that a service was performed prior to the creation of a highway district is not a test of the power of the Legislature to impose upon the taxpayers the payment of compensation; if benefits result to the district, the burden of rendering compensation may be imposed upon the district when it comes into existence.
    6. Highways — improvement district — expenses.—Since the preparation of a bill for the creation of a special road improvement district does not result in any benefit to the owners of property within the proposed district, the Legislature cannot impose that expefise upon the lands of the district.
    7. Highways — expenses of dissolved district. — A road improvement district on dissolution was not liable for services of attorneys in connection with the issuance of bonds for the construction of the road rendered before it was determined that the cost of the improvement would not exceed the benefits; such services not being preliminary.
    8. Highways — dissolution of districts — liability for money loaned. — Under Sp. Acts 1921, pp. 902, 1228, repealing acts creating certain special road improvement districts and providing for payment of claims against such districts, claims for money loaned for payment of preliminary expenses should be allowed.
    9. Highways — liability of district for money borrowed. — A road improvement district which was dissolved after borrowing money to pay preliminary expenses and using it for that purpose is ' liable therefor, even in the absence of express statutory authority to borrow money for such purpose.
    10. Highways — right of district engineer to recover on quantum meruit. — Where the engineer of a highway improvement district was employed to render both preliminary and constructive services, having no separate contract for the preliminary work, his compensation for the preliminary services on the dissolution of the district must be determined on the basis of quantum meruit.

    11. Appeal and error — chancellor’s finding. — The Supreme Court will not disturb a chancellor’s finding of fact unless it is against the preponderance of the evidence.
    Appeal from Scott Chancery Court; J. V. Bourland, Chancellor;
    reversed in part.

      Rose, Hemingway, Cantrell & Loughborough and Busbee, Pugh £ Harrison, for appellants.
    1. If the Legislature had the power to authorize the payment of attorney’s fees for the preparation ol‘ the two acts, that has been done. It may enact any law not forbidden by the Constitution. 112 Ark. 312, 346. It is settled by the decisions of this court that the Legislature may direct the disposition of the property of, or impose on, public or gwasi-public corporations the payment of claims that they should justly meet. 33 Ark. 497, 500; 73 Id. 387, 394; 56 Id. 148, 154; 104 Id. 270.
    In requiring that the districts pay for the service in drawing the incorporating acts, the Legislature only conformed to the rule of right that governs private cor porations, and in doing so exercised the authority which this court, in the two cases last cited, has held that it possesses.
    The doctrine of the anti-lobbying cases is not contrary to the allowance of these claims. Preparing a bill to be introduced in the Legislature is not lobbying, and payment for such services is held not to be against public policy, even where there is no statute which provides for such payment. 2 R. C. L., p. 1021, par. 122; 24 Atl. 219; 21 Wall. 441; 103 N. W. 1033; 80 Ya. 484; 48 Iowa 211.

      The courts have not held, nor can they, that anything is against public policy which is expressly authorized by an. act of the Legislature, passed within its constitutional powers. 166 U. S. 290; 220 U. S. 20, 49 ; 133 N. W. 209, 216; 4 H. L. Cas., 122, 123; 92 N. W. 561, 565; 83 N. E. 444, 447 ; 92 Pac. 524, 526.
    2. The claims of James Gould, based upon money loaned to the districts for preliminary expenses should have been allowed. The fact that there was never an assessment of benefits showing that the benefits to the real property in the district were equal to or exceeded the cost of the improvement, did not justify the disallowance of the claims for money advanced for preliminary expenses. Gould v. Toland, 149 Ark. 476.
    3. The fact that there had been no assessment of benefits, etc., did not justify the disallowance of the claims of A. F. Annen for engineering* services actually performed in preliminary work for the districts. 115 Ark. 437; 151 Ark. 47; 152 Ark. 302.
    The failure to proceed to final approval of the plans and specifications, or even the subsequent rejection of the plans, could not affect Annen’s claim for services rendered in making preliminary plans and specifications. The court’s finding that bonds were not furnished was without evidence to support it. That matter was not referred to by either party in the evidence. Moreover, the presumption is that the commissioners and the engineer complied with the law.
    The contracts were fully recognized by both parties thereto and fully performed up to the point of making payment for services rendered. If there were any irregularities in the contracts, they do not, under the circumstances, affect the liability of the districts. 8Í Ark. 80;.91 Id. 20; Id. 30; 62 Fed. 698; 127 Fed. 521; 67 S. E. 37; 138 U. S. 185; 140 Fed. 225.

      Evans & Evans, for appellee.
    1. The intervening attorneys are not entitled in any view of the case to be compensated for. the preparation of these acts. The section of the. acts relied, upon by them for such recovery is in violation both of the State and Federal Constitutions. There is nowhere any authority which justifies the levy of an assessment upon the lands of the taxpayers in an improvement district for the purpose of paying an attorney who, voluntarily or otherwise, prepared the bill for an act which was subsequently passed by the Legislature and which created the improvement district. At the moment oft its creation such a district is not indebted to anybody for anything. It is strictly a governmental agency for the purpose of effectuating one of the powers of government, and no mortgage can be put upon the lands of the taxpayers by the mere passage of the act creating the district. No antecedent services can form the subject-matter of a charge against the lands of an improvement district after the creation of the district. If the fee to a lawyer for preparing the bill creating the district is not a necessary part of the cost of the improvement contemplated, then the Legislature has no power to impose that burden upon the taxpayers of the district. Art. 2, §§ 8 and 22, State Constitution; 14th Amendment, Federal Constitution; 5th Amendment, Id; 89 Ark. 516; 118 Id. -294; Page & Jones, Taxation by Assessment, vol. 1, § 15; 147 Ark. 572; 149 Id. 476; 107 Icl. 285; 107 Fed. 827; 111 Mass. 454; 86 Ark. 1; 15 Id. 43.
    The question as to whether or not an attorney fee should be allowed for examining the record is purely one of fact. If the districts employed the interveners for this work, and if, pursuant to such employment, they did examine and pass upon the records, they should be compensated with a reasonable allowance. We think the chancellor’s finding against this claim is supported by a prepondeivance of the evidence.
    2. The court’s decree dismissing the claims of Gould, for want of equity should be affirmed. He himself testified to a state of facts which made it clear that he did not come into court with clean hands necessary to entitle him to relief in a court of equity.

      3. Armen rests Ms case wholly on Ms written contracts. He cannot recover. 152 Ark. 302..
   McCulloch, C. J.

Two separate road improvement districts in Scott County were created by statutes enacted by the General Assembly of 1919 (Special Acts 1919, vol. 1, p. 491, vol. 2, p. 2586), one of the said districts being designated as the Albert Pike Eoad Improvement District and the other designated as the Poteau Valley Eoad Improvement District of Scott County. The two statutes were identical in form and substance, except as to the references^ to the respective roads to be improved and the naming of the commissioners.

Powers were conferred upon the commissioners of the respective districts to construct the improvements, to borrow money and to levy and collect assessments upon benefits.

Each of the statutes contained a section which reads as follows: “The board may appoint all necessary agents for carrying on the work and may fix their pay, and shall pay a reasonable fee for the preparation of this act.”

A contract was entered into with the engineer, who is one of the appellants in the present case, to do the engineering work, both preliminary and constructive, and other liabilities were incurred, which will be mentioned later in the discussion of the case.

It was determined that the cost of the improvement would exceed the benefits, and separate actions were instituted in the chancery court of Scott County by owners of property in the districts to restrain the. commissioners from further proceedings, and during the pendency of these actions the General Assembly of 1921 massed statutes repealing each of the former statutes creating the districts. Special Acts 1921, pp. 902, 1228.

Each of the repealing statutes provided that claims against the district should be filed and adjudicated in the chancery court of Scott County in the cause involving the district, and that assessments should be levied to raise funds to pay the amounts adjudged against the districts.

There has been a joint appeal by several of the claimants whose claims were disallowed by the court, abrl the question of the correctness of the chancery ■court’s decision in disposing of each of the claims will be now discussed.

The first claim to be discussed in regular order is that of the attorneys who performed services for the. districts. These attorneys presented claims against each of the districts containing an item of $250 as a fee for preparing the bill to be introduced in the Legislature for the enactment of the statute, and the further sum of $250 for services subsequently performed in examining the records with a view of approving a bond issue by the district.

We have heretofore decided that the commissioners of improvement districts have no authority to pay for legal services in the preparation or enactment of the statute creating’ the district. Thibault v. McHaney, 127 Ark. 1. That decision, however, relates to an instance where the Legislature had not expressly conferred authority to pay for such services, and in the present case we have to deal not with the question of the authority of the commissioners in the absence of a statute attempting to confer the authority, but the question of the power of the Legislature to impose such an expense as a burden upon the taxpayers of the district. There is, however, no question of public policy involved in the point now under discussion, for the services of merely preparing a bill for a legislative enactment is legitimate and' is in no sense violative of any rule of public policy; moreover, public policy is what the lawmakers themselves declare it to be. Arlington Hotel Co. v. Rector, 124 Ark. 90; United States v. Trans-Missouri Freight Assn., 166 U. S. 290; Standard Sanitary Mfg. Co. v. United States, 226 U. S. 20.

It has frequently been said by this court that the only justification for the imposition of special taxation is the fact that special benefits are to be enjoyed. First v. Street Imp. Dist., 86 Ark. 1. It is generally a. question for the Legislature to determine whether or not benefits will accrue, and its determination of the question should be respected by the courts unless it is, on its face, unreasonable and arbitrary.

The fact that the service was performed prior to the creation of thé district is not necessarily a test of. the power of the Legislature to impose upon the taxpayers the payment of compensation, for there might be instances where a direct benefit would result from the performance of services or the furnishing of material before the creation of the district. If benefits may result to the district, then the burden of rendering compensation may be imposed upon the district when it comes into existence. Nor can it be said that services performed in the creation of the district itself will not directly result in benefit to the district after it comes into being, so as to preclude the lawmakers from authorizing compensation to be paid. What we are now called on to decide is whether or not the perf ormance of services in the preparation for the enactment of the statute creating- a district can in any sense be regarded -as carrying -a benefit to the district which is created by the enactment. We hold that in the very nature of thing’s there can be no direct and material benefit accruing’ from the enactment of the law, for that is purely a legislative function. Benefits may arise under the operation of the law, but there can be none resulting from the enactment of the law itself.

Now, the preparation of a bill is a part of the legislative function. It is true that services may be performed by individuals in no way connected with the legislative branch of government, -and the terms of such law may warrant and support a contract between individuals for the performance of such services, but, after all, it is a part of the passage of the statute, and it does not result in any benefits which flow from the operation under authority of the statute. It is unimportant to pursue an inquiry as to who procured the performance of the services, for the effect is the same in any case. Until the law is passed, and. the district begins to function under its operation, there is no one in authority to enter into a contract for the performance of such service. One who performs the service is necessarily a volunteer so far as concerns those who subsequently act pursuant to the statute.

The fact that individuals interested in the enactment of such a law are the property owners who were subsequently to enjoy the benefits arising from the improvement, affords no basis for imposing the burden on the property owners of the district as a whole.

In Thibault v. McHaney, supra, we said that the work of preparing the bill and presenting it to the Legislature and urging it before the committees of that body, as well as services performed in opposition to the effort of taxpayers to secure the dissolution of the district, were services performed for the individuals who were interested in the creation or continuation of the district, and not the district itself. The decision in that case therefore bears out the conclusion which we now reach, that there is no benefit accruing to the property owners of the district from the enactment of the statute, or from any services performed in connection therewith, therefore the Legislature had no power to impose that expense as a burden upon the district.

Now, as to the other item in the claim of the attorneys: It is clear that this service was not performed as preliminary expenses of the district, but as part of the issuance of bonds for the construction of the improvement, which is not service preliminary' in its nature. ■We held in Thibault v. McHaney, 119 Ark. 188, and in many later cases, that where an improvement district is abandoned or dissolved before it is ascertained that the cost of the improvement will not exceed the benefits, only preliminary expenses can be imposed on the property owners of the district, and that, until there is a determination that the cost will not exceed the benefits, no contract for permanent work can be entered into by the commissioners. ’

Mr. Bose, one of the attorneys who is a member of the firm of claimants, testified that his examination of the record was for the purpose of passing upon the validity of a bond issue. In response to a cross-interrogatory lie said that, “the purpose of our'passing upon the record was to prepare the papers for a bond issue.” This statement is corroborated by the fact that regular at-, torneys who resided at the county seat of Scott County were employed' by the commissioners of the district as the regular attorneys of the district, and the claimants in this instance were only called in to approve the bond issue. This service was premature, as it was' never determined that the cost of the improvement would not exceed the benefits; therefore, under repeated decisions of our' court, there was no liability on the part of the district for such service. The court was therefore correct. in refusing to allow the claims.

The next claim in order is that of appellant James Gould, who, according to the undisputed evidence, loaned money to each of the districts with which to pay preliminary expenses. The Albert Pike Boad Improvement District borrowed $2,000 from Gould and executed a note for that sum, bearing interest at the rate of six per centum per annum, and the Poteau Yalley Boad Improvement District borrowed from Gould the sum of $1,000 and executed a similar note. These sums, according to the testimony, were borrowed for use in paying the preliminary expenses and were used for that purpose. There is no reason that we can discover why the districts should escape liability, for the payment of these debts.

•Preliminary expenses are an essential burden upon the property of the districts, even though the effort to construct the improvement turns out to be abortive. The commissioners had the power to provide for the payment of these expenses, and, even in the absence- of express ■statutory authority to borrow money for that purpose, where the money is obtained and used for that purpose the district is liable therefor. The chancery court erred in refusing to allow these claims against the respective districts.

Finally, we come to consider the remaining claim involved in this appeal, that of A. F. Annen, who was employed by each of the districts as engineer. He entered into a contract for the whole of the services, both preliminary and constructive, but there was no separate contract for making the preliminay surveys and plans. In that respect the case is the same as Bowman Engineering Co. v. Arkansas-Missouri Highway Dist., 151 Ark. 47, and the compensation of appellant Annen must he determined upon the quantum meruit rule.

Oral testimony was heard upon this claim, and it is contended by appellant that he was entitled, as compensation for the preliminary work, to two per centum of the estimated cost of the construction of each of the roads. He had previously been paid the sum of $1,000 by the commissioners of one of the districts, and the sum of' $300 by the commissioners of the other district. The court found that he was not entitled to any compensation in addition to the amount, theretofore allowed and paid by the commissioners.

Appellant testified in detail concerning the work performed by him and what he paid in expenses in doing the work, and his testimony, standing alone, would warrant a decree in his favor for the full amount named in each instance. He introduced three other engineers, who testified as experts in the matter of road engineering, and they corroborated appellant in his statement that two per centum of the estimated cost of the improvement would be a reasonable compensation for preliminary work up to the point of letting the contract for the construction of the improvement. Neither of these witnesses, however, testified as to any knowledge of the particular work done by appellant, or even any knowledge of this particular locality in which the work was done. Neither of the witnesses says anything about having examined the plans made by appellant.

The commissioners introduced a witness, Mr. Winters, who is an engineer engaged in road work and residing at Fort Smith, and, according to his testimony, the work done by appellant is absolutely valueless. Winters testified, in substance, that he had carefully examined the plans and profiles prepared by appellant, and that they contained nothing except a center line and right-of-way and profile with the grade lines, and, in a few instances, other features along the right-of-way; that there was no notation of the height of culverts, and there was no showing on the'plans as to fences, telephone poles, location of old roads, streams or other features; that the curves were not shown, as required, in order to conform to plans for Federal aid, and that the rate of grades shown on the profiles was in many instances too steep and considerably in excess of the limits, set by the Federal engineers. He also stated that he found that the length of steel bridges was estimated without reference to the area drained by the streams, and that they differed from the government geographical survey maps. Many other reasons are given by Winters as to why the plans furnished by appellant are worthless.

So far as this feature- of the case is concerned, there is no testimony except that of Winters and the appellant; and while it is directly in conflict, we cannot say that'the -chancellor erred in accepting the testimony of Winters rather than that of appellant himself. If the testimony of Winters is correct, then appellant was not entitled to any compensation for making the survey and plans that were so defective and inapplicable that they were of no value. ■1

We should not disturb the decree unless it is found to be against the preponderance of the evidence, and we cannot say, in the present state of the record, that there is a preponderance against the finding of the chancellor on the issue as to the value of appellant’s services.

The decree is therefore reversed as to appellant James Gould, and the cause remanded, with directions to enter a decree in Ms favor in accordance with this opinion. In all other respects the decree is affirmed.


text:
    Wilson v. Guthrie.
    Opinion delivered October 23, 1922.
    Public lands — islands in navigable rivers — sale price. — Acts 1919, vol. 1, p. 256, (Crawford & Moses’ Dig., § 9009), as amended by Acts 1921, No. 350, providing for the disposition of funds received from the sale of forfeited lands and all swamp, internal improvement, seminary and saline lands and directing such lands to be sold at not less than $2.50 per acre, has no application to islands formed in navigable rivers, which, under Acts 1917, p. 1468, (Crawford & Moses’ Dig., § 6796), may be sold at $1.25 per acre. ■ , i ¡ '*)

    Appeal from Pulaski Circuit Court, Second Division; Richard M. Mann, Judge;
    affirmed.

      J. S. TJtley, Attorney General, for appellant.
    Act 344, Acts 1919, vol. 1, p. 256, does not repeal Act 282, Acts 1917, but it affects the sale of real estate bank lands, and islands formed in navigable streams to the extent that such lands cannot be sold for a less price than two dollars and fifty cents per acre, the method of the sale remaining as it was prior to the passage of the act. This question, though raised in the cases of Under-down v. Desha, 142 Ark. 258, and Lewis v. Owen, 146 Ark. 469, has not been passed upon by the court.

      Taylor Roberts, for appellees.
    Act 282, Acts 1917, was a new act added to the body of the law pertaining to lands of the State, Kirby’s Digest, chap. 98, and provided for the survey, sale and placing on the tax records of islands in the navigable waters of the State, fixing the price thereof at $1.25 per acre. It was and is a special act relating to a special subject, and does not alter, amend or affect the general law on the subject of the disposition of State lands. One year after the enactment of act 344, Acts 1919, this court, in discussing the withdrawal by the Legislature of a certain island from the provisions of act 282, Acts 1917, said: “The general act (act 282) remained in full force and effect as to all islands not withdrawn from its operation and not otherwise disposed of.” 143 Ark. 187. If the two acts can be given force and can be operated without conflict, both will stand. 101 Ark. 238; 41 Id. 149. Act 344, Acts 1919, expressly repealed §§ 7700 to 7707, inclusive, of Kirby’s Digest, dealing with the sale of school lands, but that act expressly announced that it was not to be construed as repealing certain other portions of the State land law. Had a repeal of § 4, act 282, Acts 1917, been intended, the later act would have so stated. ■ Repeals by implication are not favored. 76 Ark. 32; 120 Id. 530; 108 Id. 219. See also, Crawford’s Digest, vol. 4, § 49, “Statutes”; Lewis’ Sutherland, Statutory Construction, vol. 1, 2nd ed. chap. VIII, § 244; 118 N. C. 486, 24 S. E. 417.
   McCulloch, C. J.

The General Assembly of 1917 enacted a statute (Acts 1917, p. 1468) declaring all islands formed in the navigable rivers or other streams of the State (except such as have been formed by accretion) to be the property of the State, and providing for their sale and disposition in the manner therein specified.

The statute provides that a purchaser shall file his application and deposit the estimated amount of the cost of the survey and the price of the land at the rate of $1.25 per acre, and that, after the survey is made showing the amount of acreage and the cost of survey, the Commissioner of State Lands shall execute a deed to the applicant.

Appellees applied, in conformity with the statute, for the purchase of a small island in Arkansas River, and deposited the estimated cost of the survey, and this action involves a controversy between appellees and, the. State. Land. Commissioner with, respect, to the amount q£ price to be paid, tbe contention of tbe Commissioner being that the price of the land has been increased by a later amendment to the statute. Crawford & Moses’ Digest, § 6796 et seq.

This statute has been referred to in former decisions of this court (Underdown v. Desha, 142 Ark. 258; Ferguson v. Hudson, 143 Ark. 187), but nothing in those decisions reaches to the point involved in the present case.

The Attorney General, in support of his contention, relies upon the act of March 22, 1919 (Acts of 1919, vol. 1, p. 256, Crawford & Moses’ Digest, sec. 9009), as amended by act No. 350 of the sessions of 1921. The last mentioned statute provides, in substance, that funds derived from the sale of State lands, ‘ ‘ including lands forfeited to the State for taxes and all swamp, internal improvement, seminary and saline lands,” shall be paid into the treasury of the State and used, first, in refunding sums paid by purchasers for swamp, saline, seminary or internal improvement lands of the State where title has failed, and to hold the remaining funds in trust as a permanent school fund of the State, “which shall forever remain inviolate, and may be increased but never diminished.” The statute contains the following provision with respect to the price of lands to be sold thereunder:

“No swamp, internal improvement, seminary or saline lands shall hereafter be sold for less than $2.50 per acre, and no State school land shall be sold for less than two dollars and fifty cents ($2.50) per acre, nor for less than the market value, which value shall be ascertained by appraisement; provided, however, that when any lands or interest therein may be recovered by the State by litigation, the same shall be ordered sold by the court as in sales of land upon decree in equity; and, after paying expenses, .the balance of purchase money shall be deposited in the State treasury, as hereinbefore provided. Provided, however, that nothing in this section shall be so construed as to prevent the donation of the State lands as is now or may hereafter be provided by law, and. nothing in this act shall prevent the Commissioners of State Lands from accepting outstanding refunding certificates issued, or that may be issued, by the State for lands previously sold, in payment for State lands; pro • vided, further, that nothing in this, bill shall affect the sale of any State lands where written application was filed with the Commissioner of State Lands prior to February 1, 1919. Nothing in this act shall affect the present law in regard to the sale by the State of forfeited tax lands, except as to disposition of funds derived from same. Act March 22, 1919, p. 265, sec. 1.”

The contention of the Attorney General is that the later statute, in effect, declares all lands of the State to be school lands, and fixes the price at two dollars and fifty cents per acre, and that this includes island lands authorized to be sold under the act of 1917, supra.

We are of the opinion that this contention is not tenable. The statute authorizing, the sale of island lands relates to a particular class of lands, and to no others, and definitely fixes the price and method of sale.

It is unnecessary to determine in this case whether or not the later statutes authorize the inclusion of the proceeds of sale of these lands in the school fund, but we have no hesitancy in declaring that the lands themselves are not, under the later statute, classed as school lands so as to place them under the operation of that part of the statute which fixes the minimum price' at two dollars and fifty cents per acre. There is nothing in the language of the statute to indicate that its framers had in mind lands of the class now under consideration. It may be that the framers of the statute concluded that island lands, on account of their peculiar location, were of different values than other State lands, and had no intention of fixing the price at two dollars and fifty cents per acre; or, it may be that the lawmakers overlooked that class of lands altogether, and inadvertently omitted them from the new statute. At any rate, we find nothing in the language of the later statute which would justify us in holding that there was an intention to amend the former statute by increasing the price of lands fixed by the former statute, and not referred to in the later statute. It is a familiar canon of construction that repeals or amendments by implication are not favored, hence we reach the conclusion that we would not be justified in finding that such was the intention in the present instance.

The judgment of the circuit court is therefore affirmed.


text:
    Gibson v. Lawrence County.
    Opinion delivered October 23, 1922.
    Taxation — conclusiveness of findings as to tax values. — The settled rule that the Supreme Court will not disturb the findings of a trial court or jury, when supported by substantial evidence, applies in all cases at law, including those involving the correctness of valuations for taxing purposes.
    Appeal from Lawrence Circuit Court, Northern District; Dene H. Coleman, Judge;
    affirmed.

      Cohn, Clayton & Cohn, for appellant.

      Ponder & Gibson, for appellee.
    Property is assessed in this' State, whether it produces income or not. 119 Ark. 370. The findings and judgment of the circuit court will not be disturbed on appeal, where sustained by sufficient legal evidence. 138 Ark. 452. The market value of property is its value for any use to which it may be adapted. 116 Ark. 209.
   McCulloch, C. J.

Appellant is the owner of a large number of improved and unimproved lots of real estate in the town of Hoxie, and she appealed to the county court from the valuations for taxation purposes made for the year 1921 by the county tax assessor and the township board of assessors. She also prosecuted an appeal to the circuit court from the judgment of the county court fixing the assessments, and has, in turn, appealed from the judgment of the circuit court.

The only contention here is that the judgment of the circuit court fixing the assessments is against the weight of the evidence adduced at the hearing.

Appellant presents a tabulated statement showing the assessments on these lands as they appear on the tax-books for the year 1920, and also the assessments made by the board of assessors, the amounts fixed by the county court, and the amounts fixed by the judgment of the circuit court. '

■ The inquiry involves seventy-four separate valuations, in most instances each valuation covering several contiguous lots. The figures tabulated by appellant, showing the aggregate valuations, are as follows:

Total valuation for the year 1920..................$35,245
Total valuation fixed by the board of assessors .............................................................................. 56,430
Total valuation fixed by the county court 44,865 Total valuation fixed by judgment of the circuit court ............................................................ 43,595

Counsel for appellant have discussed in the brief, in detail, each of the separate assessments, but it is unnecessary for us to do so in this opinion, as the appeal can be disposed of in a general discussion of all the valuations.

It appears from the testimony that the board of assessors sought to adopt, as the proper assessment, fifty per centum of the actual valuation of the land, and appellee introduced the county assessor and one of the members of the township board, whose testimony tended to show that these lands were assessed on that basis, and that they were in uniformity with other assessments in the county. Several witnesses were introduced by appellant, and their testimony tended to show that many of the assessments were excessive, and in some instances were not in conformity with the assessments on similar property.

It appears from the tabulated figures furnished by appellant that the assessments made by the township board were approximately $20,000 in excess of tbe valuation for the previous year, but tbat tbe valuation fixed by the circuit court in its judgment was approximately $13,000 less than tbe valuation fixed by tbe assessing board, and about $1,500 less than the valuation fixed by the county court. Tbe sole question which concerns us is, whether or not there is legally sufficient testimony to support tbe finding of tbe circuit court, for tbe settled rule is tbat tbe court will not disturb tbe finding of tbe trial court or jury upon disputed issues of fact unless found to be unsupported by substantial testimony. That rule prevails in all cases at law, and a case like this, involving tbe correctness of valuations for taxation purposes, is no exception to tbe general rule. St. L. & S. F. R. R. Co. v. Fort Smith & Van Buren Bridge Dist., 113 Ark. 492.

Upon consideration of tbe testimpny, we are of tbe opinion tbat it is legally sufficient to support the finding of tbe trial court.

This disposes of tbe only contention made by appellant’s counsel, and the judgment is therefore affirmed.


author: Wood, J.

text:
    Kempner v. Sanders.
    Opinion delivered October 23, 1922.
    1. Municipal corporations — improvement district — preliminary petition. — The preliminary petition for a street paving district (under Crawford & Moses’ Dig., § 5649) sufficiently described the improvement as “repaving with an asphaltic surface and otherwise improving” the street; the words “and otherwise improving” referring to such work as was incident and essential to making the repavement a successful and complete improvement, and it being enough to describe the improvement in general terms while leaving the details and plans to he worked out by 'the board of improvement after the district is established.
    2. Municipal corporations — improvement district — ordinance.— An ordinance creating a paving district, providing for repaving a certain street and for drainage where necessary “and all other work necessary and incidental to said paving and draining” does not authorize any work not necessary and incident to the main purpose of the repaving.
    . Appeal from Pulaski Chancery Court; J. E. Martineau, Chancellor;

    affirmed.

      Abner McGehee, for appellant.
    The preliminary petition should set out with particularity the class of improvement to be undertaken, so that property owners might be fully advised thereof before signing. Otherwise the commissioners would be provided with a commission controlled only by their own discretion. 118 Ark. 119; 241 S. W. (Ark.) 370. There should be no uncertainty about the improvement proposed. 130 Ark. 44.

      8. L. White, for appellee.
    The preliminary petition is not required to state in detail the plans of the improvement. These must of necessity be worked out by the board of improvement after the establishment of the district. 176 S. W. (Ark.) 678; 97 Ark. 339. The purpose of the district is, of course, fixed by the petition and ordinance, and unless therein specifically limited the board may exercise its own discretion in doing those things which are necessarily incident to the construction of the improvement. 105 Ark. 65. The work undertaken was necessary to the permanent improvement desired. The words ‘ ‘ and otherwise improving” as used in the petition, could not in any way be construed to constitute a “roving commission” on the part of the board, as was done in the case at 118 Ark. 119, nor could they be said to be too indefinite to advise property owners of what was to be done as was said in the case of Nelson v. Nelson, 146 Ark. 362, both of which cases are relied upon by appellant.
   Wood, J.

Street Improvement District No. 303 of Little Eock was created by the city council on January 24, 1921, under the authority of §§ 5647, 5649 and 5652 of Crawford & Moses’ Digest. The preliminary petition for the improvement, after describing the property to be embraced in tbe district, prayed tbe city council to “take steps for the local improvement by repaving with an asphaltic surface and otherwise improving Main Street from the south curb of Markham Street to the south curb on Eighth Street, and to that end to at once lay off as an improvement district, to be known as Street Improvement District No. 303, the aforesaid property in said city of Little Rock.”

The ordinance creating the district provided as follows : “Sec. 1. That Street Improvement District No. 303 of .the city of Little Rock be and the same is hereby created and established for the purpose of repaving with an asphaltic surface and otherwise improving Main Street from the south curb on.Markham Street to the south curb on Eighth Street; to provide for drainage where necessary, and for the purpose of doing any and all other work necessary and incidental to the said paving and draining, in accordance with an act of the General Assembly of the State of Arkansas, entitled, ‘An act to regulate the manner of assessing real property for local improvements in cities of the first class,’ approved March 22,1881, and amendments thereto.” (Here follows a description of the boundaries of the district, embracing all of the real estate as described in- the preliminary petition).

This action was instituted by the appellant. He set up in his complaint that the appellees were the duly elected and qualified board of improvement for district No. 303, supra; that he was the’ owner of real property, and a taxpayer in the district. After setting out the provisions of the preliminary petition and the ordinance as above set forth, he alleged “that the board of commissioners contemplated a contract not only for the repaving of Main Street with an asphaltic surface, but also for the removal of the present wood blocks, brick and sand cushion and cleaning the foundation, putting in a special binder course and requiring the contractor to maintain the improvemeht for a period of five years; also the installation of certain catch-basins, pipes, curb renewals and radius corners, and putting in steel headers between the street railway tracks and that portion of the street to be paved by the district. That the repaving of the street with an asphaltic surface will cost the district approximately $35,000, but if the board is allowed and permitted to construct the additional improvements above specified, this will cost approximately $10,000 more, which will be an extra burden upon the taxpayers within the district, and which they did not contemplate nor authorize in their preliminary or first petition to the-city council.” The appellant alleged that the ordinance establishing the district as aforesaid was void; that the preliminary petition was too vague and indefinite to meet the requirements of the law. He prayed that the appellees be perpetually enjoined from issuing bonds and proceeding with the work of the improvement, and that the district be declared invalid, 'and the assessments levied against the property owners be declared null and void.

The appellees, in their answer, admitted that they contemplated making the improvements as set up in the complaint, and admitted that it would cost the sums therein'specified. The answer alleged that the additional improvements contemplated, and specified in the complaint, were to cost the sum of $10,000, and were necessary and incidental to the repaving in order to construct the pavement - in such workmanlike manner that no repairs would be necessary for five years, the contractor being required to maintain it for that period of time. The answer details the particulars, alleging that it was necessary to put in catch basins in order to protect the asphaltic pavement, and that it was also necessary to remove some old and worn pipes and replace them with hew ones; that, in order to lay the new pavement, the curbing will have to be removed and a new curb and new corners built; that the installation of steel headers between the pavement to be laid by the district and the pavement which the street railway company is to lay at the same time is necessary to protect the pavement of the district against damage by the street railway company whenever its pavement should be removed or opened. The appellees concluded their answer by embodying in it a general demurrer to the appellant’s complaint.

The cause was heard upon the complaint, the answer and the demurrers, and certified copies of the preliminary petition and the ordinance above mentioned. The court entered a decree sustaining the demurrer to the complaint and overruling the demurrer to the answer, and dismissing the complaint for want of equity. The appellant stood on his demurrer and appeals.

1. It is first contended by the appellant that the language of the preliminary petition, to-wit: “By repaving with an asphaltic surface and otherwise improving Main Street from the south curb on Markham Street to the south curb on Eighth Street” is too vague to advise the property owners of the character of the improvement to be undertaken.

We have held in many cases that the preliminary petition is jurisdictional and must meet the requirements of the statute. In Cox v. Road Imp. Dist. No. 8 of Lonoke Comity, 118 Ark. 119, where the oases are collated, we said: “There must be no uncertainty about the improvement proposed. The details and plans of the improvement may be worked out by the board of improvement after the establishment of the district petitioned for, but the discretion of the board is limited <to carrying out the purpose of the petition. It is not contemplated that, upon and after the establishment of the district, there shall be any doubt about the improvement to be constructed. ’ ’ By the language of the. petition the property owners were certainly advised that the local improvement contemplated was the repaving of Main Street in the city of Little Rock, from and to the points (jqsignated, with an asphaltic surface. This language 1% certainly definite enough to describe the character of the improvement to be undertaken.

But appellant contends that the clause “and otherwise improving” makes the antecedent language uncertain and makes it doubtful as to the kind of improvement contemplated. But, taking the sentence as a whole, we are convinced that it is not susceptible of such interpretation. The meaning and effect of the conjunction “and” was to indicate that the board of improvement could add to and- join with the repaving of Main Street such other and further work as was necessary and incident thereto and included in the repaving of Main Street with an asphaltic surface. In other words, the main purpose of the petition was the repaving of Main Street. The words “and otherwise improving” were manifestly added in order to give the board of improvement the power to do whatever was necessary to effectuate the main purpose. Certainly these words cannot be interpreted to clothe the board “with a roving commission controlled only by their own discretion to make any kind of improvement they desired.” The only improvement they could make, as we view the petition, was the repaving of Main Street with an asphaltic surface and the doing of such other work in connection therewith as was incident thereto and essential to making the repavement of Main Street a successful -and complete improvement, such as was contemplated by the petition.

While, to give the council jurisdiction, it is necessary that the preliminary petition describe with certainty the improvement proposed, yet this may be done in general terms, leaving the details and plans of the improvement to be worked out by the board after the district is established. Cox v. Road Imp. Dist., supra. See, also, Board of Improvement v. Brun, 105 Ark. 65; McDonnell v. Imp. Dist., 97 Ark. 339. We conclude that the preliminary petition was sufficient.

2. ' The ordinance, after establishing the district and reciting the improvement to be made precisely as set forth in the preliminary petition, adds this clause: “To provide for drainage where necessary, and for the purpose of doing any and all other work necessary and incidental to the said paving and draining.” It follows from what we have already said that the ordinance establishing the district is not void because it authorizes the drainage wheré necessary, and other work necessary and incidental to the paving. Interpreting the ordinance in connection with the petition, it is manifest that it only contemplates the doing of such drainage and other work as may be necessary to effectuate the main purpose of the ordinance establishing the district, which, as we have said, is to repave Main Street with an asphaltic surface. Construing the ordinance as a whole and giving the words their plain and natural meaning, we conclude that no work is authorized to be done under the ordinance other than that which is necessary and incident to the repaving of Main Street and to make such repavement adequate and durable.

The allegations of the answer, which are admitted by the demurrer, show that the drainage and other work therein specified were necessary and incident to the work of repaving the street. It is alleged that such drainage, and other work specified, would only cost approximately $10,000. The allegations of the answer as to the additional improvements necessary and incident to the work of repaving Main Street, and as to the cost thereof, show that this additional work was not a separate and independent undertaking. It was a part of, and embraced within, the petition for an ordinance creating the district for the repaving of Main Street.

The case of Nelson v. Nelson, 146 Ark. 362, upon which appellant relies, is wholly unlike this case, because in that case the use of the disjunctive “or” in the ordinance establishing the district left it entirely optional with the commissioners as to whether they would do draining or grading, or curbing or guttering, or simply paving. “In other words, whether it contemplated only one of the methods mentioned, or one or more, or all of them combined, or by some other method not mentioned, if the commissioners deemed such method to the best interest of the district.”

In the present case the conjunction “and” makes it certain that the board of improvement was to repave Main Street and do such drainage and other work as was incident and necessary to the repaving, which additional work is specifically described in the answer and alleged to be necessary and incident to the proper paving of the street as contemplated. Here the allegations of the answer, admitted to be true, make the affirmative showing that it was not practicable to do' the work of repaving Main Street in the manner contemplated by the ordinance without also at the same time doing the drainage and other work specified in the answer. Meyer v. Board of Imp. of Paving Dist. No. 3, 148 Ark. 623-634; Board of Imp. v. Brun, supra.

The decree is in all things correct, and it is therefore affirmed.