source: Caselaw Access Project

author: Hart, J.

license: Public Domain

text:
    Prescott & White’s Ferry Road Improvement District v. Franks.
    Opinion delivered January 31, 1921.
    Highways — disapproval op plans by county court — when not arbitrary. — Evidence that the county court’s refusal to approve plans for the improvement of a highway, authorized by Acts 1920, No. 118, § 6, was based on the fact that the cost of the proposed improvement would be burdensome and prohibitive held to show that the court’s disapproval of the plans was not arbitrary.
    Appeal from Nevada Circuit Court; C. W. Smith, Judge on exchange;
    affirmed.

      C. C. Hamby and R. P. Hamby, for appellant.
    1. The action of the county court and the circuit court was arbitrary. The allegation that the lands were too remote and inaccessible to be benefited is unsupported by the proof. Legislative determination that property will not be benefited will not be inquired into unless it can be shown that such determination is so arbitrary as to amount to confiscation. 139 Ark. 341; 216 S. W. 690; 218 Id. 375; 113 Ark. 193; 123 Id. 327.
    2. The plans provide for 550 feet of wooden bridges, but this is no reason why the plans should be disapproved; the commissioners’ demurrer should have been. sustained. The county court can not set aside the judgment of the commissioners and. engineers and the action of the State Highway 'Commission unless it clearly appears that their judgment is manifestly wrong. 218 S. W. 385.
    3. The overlapping of districts does not render the cost greater than benefits received. Lands may be placed in more than one district. 139 Ark. 524, 341; lb. 153, 168. The objection is premature. 140 Ark. 115; 216 S. W. 690. The objection of property owners to improvement was demurrable and demurrer properly sustained. The assessment of benefits was not unequal and unjust. The Legislature may fix the annual maximum levy of benefits. 139 Ark. 525. Uniformity of taxation as provided in our Constitution refers only to general taxes and not to special assessments for local improvements. 56 Ark. 354; 86 Id. 109; 96 Id. 410; 87 Id. 8. No assessments having been made, the question is raised prematurely. 219 S. W. 755; 216 Id. 690; 138 Id. 341.
    The act not void because it conflicts with jurisdiction of county court. This is well settled and needs no citations. The act was properly passed, as the journals show, and this was the best evidence. 220 S. W. 57; 139 Ark. 595; 44 Id. 536; 40 Id. 200; 51 Id. 559.
    The court erred in refusing the commissioners’ declarations of law and finding of facts. Appeals can be taken from the judgment of the county court declining to approve plans. 140 Ark. 168. The action of the circuit court in disapproving the plans should be reversed.

      J. O. A. Bush, for appellee.
    The action of the county court and circuit court was not arbitrary. The matters set up in the answer as a defense are fully sustained by the evidence. The county judge was not willing to approve the plans, and his reasons are ample and sufficient and not arbitrary. The circuit court sustained his action, and no error1 is shown, but the judgment is dearly sustained by the law and evidence.
   Hart, J.

This is an appeal by the commissioners of a road improvement district from the judgment of the circuit court affirming the action of the county court in disapproving the plans and specifications filed by the commissioners for the construction of the proposed improvement.

The judgment is sought to be reversed on the ground that the action of the county court and the circuit court was arbitrary.

The special session of the Arkansas Legislature held in 1920 passed an act to create the Prescott and White’s Ferry Road Improvement District in Nevada County, Arkansas. The bill is No. 118 of the unpublished Acts of 1920, and was approved February 11, 1920. Boundaries of the district were designated in the act,, and the road to be improved was described.

Section 5 of the act makes it the duty of the commissioners to improve the road by grading, draining, and surfacing it in such manner, and with such materials, as the commissioners shall deem best for the interest of the district, with full power to construct bridges, culverts, and necessary appurtenances to the road.

The section further provides that the several parts of the road may be surfaced with such different materials as the commissioners shall see fit. It also provides for changes in the route of the road, to be approved by the county court and laid out by it as county roads are laid out.

Section 6 provides that the commissioners shall file their plans, when completed, with the county clerk of Nevada County. The section further provides that, if the county court shall approve the plans, as filed, it shall enter an order to that effect, which shall have the force of a judgment. It also provides that, if the county court shall disapprove the plans, it shall enter an order to that effect, and appeals from such order may be taken by the commissioners to the circuit court to be there triéd de novo before the circuit court sitting as a jury.

Thus it will be seen that the commissioners are given great discretion as to the kind and character of the improvement to be made in the road. They have full power to grade, construct, and surface the road with such materials as they shall deem best for the interest of the district, and also to construct the necessary bridges and culverts. Their action, in this respect, however, is subject to the approval of the county court.

The county judge was a witness in the circuit court. According to his testimony, after the commissioners had filed their plans and specifications with him, he made an estimate of the proposed cost of the improvement, and found it to be so great that it would be very burdensome to the people interested, and would be prohibitive. The commissioners did not disagree with him that the cost of the road was prohibitive.

The plans and specifications showed wooden bridges, and one of them was 550 feet long. The county judge thought that this was another objection to making the improvement, because it would be better, in the long run, to have steel and concrete bridges and culverts. Another reason for disapproving the plans and specifications was, that the proposed road was near another county road which would have to be kept up by the same property owners.

The county judge, by virtue of his office, was necessarily familiar with the public roads of his county. According to his testimony, he knew and appreciated the necessity of improving the public roads and the ability of the property owners to pay for the same. He had the plans ana specifications before him, and, when everything was considered, he deemed it to be to the best interest of the people not to carry out the proposed improvement.

The circuit court accepted his testimony as true, and acted upon it in trying the case de <novo. The testimony is of such a substantial character as to form a basis for the action of the circuit court in affirming the judgment of the county court, and it can not therefore be said, in view of all the surrounding facts and circumstances, that the ruling of the circuit court was arbitrary, and without substantial evidence to support it.

It follows that the judgment will be affirmed.


text:
    Lloyd v. Thornton.
    Opinion delivered January 3, 1921.
    Taxation — presumption op redemption from payment op taxes.— Where land was sold to the State in 1882 under the overdue tax act, and from and including that year and up to 1919 the lands were assessed to and taxes thereon paid by plaintiffs and other privies, who owned the land at the time of sale, it will be presumed that the lands were redeemed, notwithstanding the records of the land office do not show such redemption.
    Appeal from Clark Chancery Court; James D. Shave'1% Chancellor;
    affirmed.
    STATEMENT OE EAOTS.
    Appellees brought this suit in equity against appellants on the 24th day of November, 1919, to quiet their title to 120 acres of land in Clark County, Arkansas. The title of both parties is deraigned from the State, which obtained title from the United States under the Swamp Land Grant. A patent was issued by the State to forty acres of the lands to one of the grantors of appellees on the 13th day of July, 1882, and a patent to the grantors of appellees was issued by the State to the remaining eighty acres on the 3d day of December, 1881. The statement of facts shows that the lands had been on the tax books, from .and including the year 1882, to the time of the institution of the present suit, and that appellees and their grantors have paid the State, county, school, and road district taxes on said lands for all said years.
    The State claimed the title under, and by virtue of, overdue tax proceedings begun on the 19th day of April, 1882, whereby the lands in question were condemned to be sold for the unpaid taxes for the year 1876. A decree was entered of record in said overdue tax proceedings, on 28th day of July, 1882, and the lands were sold to the State for taxes, penalties and costs, and on the 2d day of October, 1882, and on the same day appellant purchased the lands from the State, receiving a deed from the 'Commissioner. The records of the State Land Office do not show that the lands involved were redeemed from the overdue tax sale.
    The chancellor found the issues in favor of appellees, who were the” plaintiffs in the court below, and a decree was entered accordingly.
    The defendants are the appellants in this court.

      W. A. Leach, for appellants.
    1. It is conceded that the lands in controversy were embraced in the “overdue tax suit” in Clark County and were sold to the State. The validity and regularity of this proceeding is unquestioned, and its effect was to vest a good and valid title to the lands after the period of redemption had expired. There are but two ways pointed out by the law by which the State could have been divested of this title, that is by redemption in the time and manner provided by the “overdue tax act” .or some subsequent act, or sale by the State. It is not contended that the lands were actually redeemed, nor is it contended that the State sold these lands prior to the deed to appellants.
    Appellees rely solely on the doctrine of estoppel to divest the State of whatever title it acquired under the sale under the “overdue tax act.”
    The State is not estopped by the unauthorized acts of her agents or officers. 12 Ark. 421; 27 Id. 242; 39 Id. 580; 135 Id. 353; 93 Id. 495. The State is bound and will be estopped by the conduct of her officers acting within the express scope of their authority. 135 Ark. 353. But if the act did not fall clearly within the express authority of the State she would not be estopped. 66 Ark. 48. The grounds upon which estoppel is here sought are twofold: (1) The action of State Land Commissioner in expressing an opinion as to the validity of, a certain forfeiture; (2) the action of the State’s taxing, officers in levying and collecting taxes on the lands in controversy. The State is not estopped by the opinion of the Land Commissioner. The office of Land Commissioner was created by statute, and his duties clearly defined. His duties are purely ministerial, and giving opinions upon matters of law is not one of his duties or powers, and the State is not estopped nor bound by the unautnonzecl acts of her officers. 39 Ark. 580; 42 Id. 118; 55 Id. 398; 93 Id. 495. The unauthorized acts of the tax officers in placing the lands on the tax books and collecting taxes does not estop the State. 135 Ark. 353-366. The presumption is that public officers do their duty. Lands granted to the State under the “swamp land grant” do not become taxable until a sale by the State. Under the act of 1887 “overdue tax lands” were subject to redemption, and a presumption of sale does not arise from the fact that taxing officers levied and collected taxes. The presumption of a grant against the sovereign is like laches, and no fast and hard rule can be laid down that will govern. Each case must depend upon the facts of the particular case. 135 Ark. 232, 353, 364. The State is not estopped. 140 U. S. 464. The doctrine of estoppel having no application here and the alleged presumption of redemption being overcome by positive proof, the judgment is wrong and should be reversed.

      John H. Crawford and Dwight H. Crawford, for appellees.
    1. This case is on “all fours” with Wallace v. Hill, 135 Ark. 353, and that case controls, and it was properly decided.
    2. The case of Martin v. Barbour, 34 Fed. Rep. 701, is especially applicable here. See, also, 139 Ark. 333.
    3. The doctrine of estoppel now extends even to the State, where an officer or agent of the State has misled a party to his injury. 114 Ark. 62; 135 Id. 232; 135 Id. 353; 140 U. S. 646. The State is estopped by the state’s officers in placing the lands upon the tax books during the period allowed for redemption, and the continued possesion of the lands and the payment of taxes for thirty-five years thereby effecting a constructive redemption. The State is clearly- estopped.

      4. The lands were not subject to taxation for the year 1876. There is no error.
   Hart, J.

In the case of Wallace v. Hill, 135 Ark. 353, the court held that where land was sold to the State, under an overdue tax sale, and where for thirty-four years thereafter the State, through its county officers, assessed, levied, and collected taxes on said land in the name of the original owner and his successors,' it will be presumed that said land had been redeemed from the Commissioner of State Lands by the original owner.

This principle of law controls the case at bar. The overdue tax sale was had in the year 1882, and the lands were sold to the State for the taxes, penalties and costs. The record shows that, from and including that year, up until the time of the institution of the present suit in 1919, all the taxes due on said lands were paid by the appellees and their grantors. The lands were assessed in the names of the grantors of appellees, who owned them at the time they were sold under the overdue tax proceedings. The then owners paid the taxes, and the lands continued to be assessed in their names, and the taxes were' paid by them until they sold the lands to appellees. Since that time the lands have been.assessed in the names of appellees, and they have paid the taxes.

The persons who owned the lands at the time the overdue tax sale was had were entitled to redeem the lands from- that sale. The right to redeem was a substantial right which the owners could not be deprived of. If the lands had been redeemed, it was the duty of the proper officers to place the lands back on the'tax books in the names of the owners and thereafter to assess and collect taxes thereon. The fact that the owners had the right to redeem, and that the lands were placed back on the tax books in the owners’ names, coupled with the further fact that the owners thereafter paid the taxes, raises the presumption that the lands were redeemed, notwithstanding that the records of the Land Office do not show such redemption.

It is contended that the present case is differentiated from that of Wallace v. Hill, supra, because the record herein recites that the records of the State Land Office do not show that the lands involved in this.suit were redeemed from the • overdue tax sale. This is a negative showing which we do not regard as of any force whatever. Of course, if the record at the Land Office affirmatively showed that the lands had been redeemed, that would end the matter. No such showing appears on the records, and it is because of the absence of such showing that the presumption can arise at all. The presumption is in favor of the landowner, whom the record shows had performed his full duty to the State with regard to the payment of taxes assessed ag'ainst his lands. If, in fact, the owner exercised his right of redemption in apt time, it would be inequitable to deprive him of his title simply because the Commissioner of State Lands failed to discharge his duty and to make his records show that the lands had been redeemed. It is in accord with the principles of equity to hold that the action of officers of the State in placing the land on the tax books in the name of the owner during the time he had a right to redeem and the assessment and collection of taxes from him thereafter for a long period of years is sufficient to raise a presumption that he did redeem from the overdue tax sale.

The records show that the appellees bought the lands in 1905 from the heirs of the original grantee. The attorney who made the abstract of title wrote to the State Land Commissioner with regard to the overdue tax sale. The Land Commissioner wrote back that the forfeiture was erroneous because the lands were not subject to taxation for the year 1876. The records further show that the title at that time was in the State, Of course the State could not be estopped by the statement of the Land Commissioner to the effect that the overdue tax sale was erroneous, but the inquiry does show that the appellees, and their grantors, acted in good faith in the matter. It does not, in the least, tend to lessen the presumption that the lands had been redeemed by the owners in apt time under the overdue tax sale. It will be remembered that the inquiry was made by the abstracter representing the heirs of the original owners of the lands at the time the overdue tax proceedings were had. Hence it could not be said that the inquiry constituted any evidence of a declaration or admission on the part of the original owner that they had not redeemed from the overdue tax sale. The appellants took their deed for the lands in the same condition in which the State held them and subject to the same equities and defenses. Hence the court below was right in dismissing their cross-complaint to quiet title in themselves, and the decree was right in quieting title in the appellees.

The case of Chicago Land & Timber Company v. Dorris, 139 Ark. 333, has no application here. As pointed out in the opinion in that case, the record did not show who owned the lands at the time of the overdue tax sale, or that the lands were placed back on the tax book in the name of such owner within the period of the right of redemption. Hence there was nothing in that case, as in the present one, from which to raise a presumption that the owner of the lands did redeem them from the overdue tax sale.

Therefore the decree will be affirmed.


author: Hart, J. Smith, J.

text:
    Ellison v. Oliver.
    Opinion delivered January 31, 1921.
    1. States — contract for public printing — approval.—The requirement of Constitution 1874, article 19, § IB, that public printing shall be performed under contract awarded to the lowest possible bidder subject to approval by the Governor, Auditor and Treasurer is mandatory.

      2. Constitutional law — construction by silence op court. — The construction of a provision of the Constitution is a matter of too much public importance to be concluded by the mere omission of the court to pass upon a question in .a given action unless the decision of the case necessarily involves a construction of such provision.
    3. States — board por letting contracts. — Under Constitution, article 19, § 15, requiring State printing contracts to be approved by the Governor, Auditor and Treasurer, the Legislature could not make such officers a board for the letting of such contracts, as the Constitution impliedly requires the approval of contracts by them to be separate from the act of letting them.
    4. States — approval op public contracts. — The “approval” of public contracts by the Governor, Auditor and Treasurer means the approval by each of the above officers separately, and not as a board, so that the approval of two of the three officers is not sufficient.
    5. Constitutional law — function of courts. — In construing a provision of the Constitution, the courts have nothing to do with its wisdom or expediency.
    6. Evidence — presumption that officers will perform duties.— The courts will not presume that either the Governor, Auditor or Treasurer, in performing their duties under Constitution 1874, article 19, § 15, will wilfully or capriciously withhold his approval from a public contract, but will presume that each officer will perform the duty imposed upon him by the Constitution without regard to any supposed public or "private advantage to himself.
    7. Constitutional law — construction of unambiguous language. — Where the language used in a constitutional provision is plain and unambiguous, the court can not seek other aids of interpretation.
    8. States — approval of printing contract. — Under Constitution, article 19, § 15, requiring printing contracts to be approved by the Governor, Auditor and Treasurer, a contract approved by the Governor, Secretary of .State and Treasurer, but not by the Auditor, is void.
    9. States — appropriation for additional work. — Under Constitution, article 5, § 29, prohibiting appropriations for a longer period than two years, and article 16, § 12, requiring payments only in accordance with appropriations, Acts 1919, page 186, appropriating a sum for reprinting the Supreme Court Reports can not be construed as an appropriation to carry out a contract for printing such reports entered into under Acts 1917, vol. 2, p. 1217, and no payments can be made under the act of 1919 without letting a new contract.

      10. States — letting of public contracts. — Under Acts 1919, page 186, appropriating a sum for reprinting the Supreme Court Reports, a contract which was not let to the lowest bidder, as required by Constitution, article 19, § 15, was void.
    11. States — contractor acting in good faith under .void contract. —The fact that a contractor printed books for the State in good faith believing that his contract was valid and that the work was done to the State’s advantage, would not authorize the courts to deny injunction against the enforcement of an invalid contract.
    Appeal from Pulaski Chancery Court; Jm,o. E. Martineau, Chancellor;
    reversed.
    STATEMENT OF FACTS.
    Appellants brought this suit in equity against appellees to restrain them from proceeding further in carrying out an alleged contract for the reprinting and binding of certain 'Supreme Court Reports.
    The facts are as follows: Appellants are citizens and taxpayers of the State of Arkansas. The Legislature of 1917 passed act 226 providing for the reprinting and sale of certain Arkansas Supreme Court Reports. Pursuant to the act the Governor, the Auditor and the Secretary of State advertised for bids for the printing and binding of certain volumes of the Supreme Court Reports, and C. C. Calvert submitted a written proposal to do the work. This bid was' accepted, and the Governor, Secretary of State, and the Auditor of State, purporting Nto be the board of commissioners to let public contracts, entered into a written contract with the Calvert-McBride Printing Company of Fort Smith, Ark., for printing and binding 500 copies of certain volumes of the Arkansas Supreme Court Reports. The contract was signed by the Governor, as president of the board, and by the Auditor of State and the Secretary of State. The minutes of the board approving the contract were written up and signed by the Governor, Secretary of State, and the Auditor of State. The printing company entered upon the work and printed reports until the appropriation, amounting to $40,000, was exhausted in payment of the work. The Legislature of 1919' passed act 257 entitled, “An Act to Appropriate Money for the Reprinting of Certain Supreme Court Reports.” No new contract for the printing of the reports was let, and the Calvert-McBride Printing Company continued to do the work under the contract made on the 2d day of November, 1917, above referred to, and the act of 1919 was treated by the board and by the printing company as an appropriation to carry on the work under the contract executed on November 2, 1917. The printing company in good faith continued the work of reprinting the Supreme Court Reports and a large part of the appropriation made by the Legislature in 1919, was expended in paying for the same. The State Treasurer did not approve the contract made in 1917, nor was he asked to do so.
    The chancellor was of the opinion that the contract between the Board of Commissioners and.the Calvert-McBride Company, dated November 2, 1917, was a valid and binding contract and covered the reprinting of all the Supreme Court Reports involved in this controversy which were out of print, and that act 257 passed by the Legislature of 1919, was in effect an appropriation bill to pay the Calvert-McBride Printing Company for work done under the terms of.the contract dated November 2, 1917, and that therefore a new letting was unnecessary under the last mentioned act.
    A decree was entered accordingly, and the case is here on appeal.

      E. G. Shofner, for appellants.
    1. The chancellor erred in holding that act 257 of 1919 was a mere appropriation bill to pay the printing company for work done under its contract awarded under the act of 1917. The board did not advertise for bids and let a contract in the constitutional way. The act of 1919 can only be made a simple appropriation bill by judicial construction, and there is no room for construction of a statute unambiguous in its language. 56 Ark. 110; 47 Id. 404. Statutes should be construed according to .their natural and obvious language. 110 Ark. 99. If the statute is plain and unambiguous, there is no room for construction, and resort to extrinsic facts is not permitted. 11 Ark. 44; 104 Id. 583; 93 Id. 42. If it was the intention of act 257, § 2, to adopt the terms of the contract let in 1917,- it is void. Ill Ark. 571. If that was not the intention, then the machinery provided in act 226 of 1917 must govern, and the action of the board in proceeding without competitive bids is void.
    2. The court erred in holding, in effect, that the act of 1917 authorized the board to let the contract for an amount of printing beyond the appropriation made and tñat tms authority was legal. If the act of the board is to be upheld, their authority must be found in act 226 of 1919, and it must be firmly grounded upon the Constitution and general laws. Article 5, § 28, Constitution; article it>, § 12, Constitution; Kirby’s Digest, §§ 3403, 3415-18; 120 Ark. 80; 42 Id. 243. If the act did not give the board authority to contract beyond the appropriation made for the purpose, a new contract must be made under tiie act of 1919; and the board is without authority to give the work to any printer without advertising for bids. 40 Ark. 251; 54 Id. 645; 111 Id. 571.
    3. The court erred in holding that the contract let to Calvert-McBride Company November 2, 1917, covers any amount of printing beyond the appropriation made. Having entered into a contract for printing all the books out of print, the board left themselves without the right to select volumes. 42 Ark. 243. The reservation was not of the right to designate the order in which the books should be prmted, but an absolute reservation of the right to designate the volumes that should be printed at all, or in any event. In the contract there is the right to terminate the contract at any time by the board. In view of the law, constitutional and statutory, the board reserved the right to shut off work whenever the printing company had executed enough work to absorb the appropriation and therefore to let a contract for reprinting $40,000 worth of books and no more. If the contract did cover all of the books out of print, regardless of the amount, and the board’s authority to let the contract was legal, then the Legislature itself was without power to enact a law which would deprive it of the benefit of the contract. Even the Legislature could not do this. 42 Ark. 243. Unless both parties are bound, neither is. 4 Ark. 251.
    4. The chancellor erred in holding that the contract of November 2, 1917, was a valid contract, and in refusing to go into an accounting under it. Art. 19, § 15, Const.; Kirby’s Digest, § 6408. The contract in controversy was not approved by the Treasurer in his official capacity. The reprinting of these reports was such State printing as was covered by the Constitution and statute above quoted. Ill Ark. 571. Although our Supreme Court has not passed on the question presented, there are numerous decisions construing provisions identical with article 19, section 15, Constitution. See 56 Pac. 818; 57 Id. 449. These cases are peculiarly applicable here. The contract was never properly approved, and it was not effective after December 1, 1919. The Treasurer never approved it.
    5. The chancellor erred in refusing to order an immediate accounting and in refusing to rescind the contract. The chancellor could and should have rescinded the contract and .ordered an accounting. 40 Ark. 251.
    The chancellor should have held the act of the printing board in employing the Calvert-McBride Company without advertising for bids under the act of 1919 to be illegal and restrained further payments and ordered an accounting.

      Coleman, Robinson & House, for appellees.
    Act 257 of 1919 was intended as a continuation of the appropriation of the act of March 18, 1917. ■ There is no legal objection to the Legislature appropriating money for carrying out any contract in which the State is interested and making additional appropriations from time to time as the emergency exists. The matter is entirely in the Legislature’s hands.

      As to whether or not the board conld have advertised for bids under the Acts of 1919 and been restrained by the contractor is entirely beside the question, as all parties have accepted the construction placed upon the act by the board and have been proceeding thereunder, and there is no merit in the contention that under the act of 1919 the Calvert-McBride Company expected to do the work for all time to come, as that is a matter entirely within legislative discretion.
    Article 19, section 15, Constitution, was complied with, and the contract was properly approved. The oases in 57 Pac. 449 and 56 Pac. 818, have no application. See 127 N. W. 1079-81, 149 Iowa 76; 100 Pac. 1114-16; 23 Okla. 489; 96 Pac. 731; 37 Mont. 408.

      John D. ArbucTcle, Attorney General, and Silas W. Rogers, Assistant, for appellees.
    1. Sections 6408 of Kirby’s Dig., is a reproduction of section 5363 of Mansfield’s Digest, and the contract was approved by the Governor, Secretary of State and Auditor.
    2. There was no error in refusing to order an immediate accounting. Appellants have not been injured, as the case is still in court subject to final adjudication. The contentions of appellants are purely technical. State officers and the printing company have each acted in good faith, and the State has received a good contract and is receiving good work at a price which is a saving to the State.
   Hart, J.

(after stating the facts). The decree of the chancery court is sought to be reversed on the ground that the contract of the date of November 2, 1917, for reprinting certain volumes of the Arkansas Supreme Court Reports is a valid and binding contract and that the &ei¡ supplementary thereto, passed by the Legislature in 1919, was, in effect, an appropriation bill tO' pay the Calvert-McBride Printing Company for work done by it under the original contract. The correctness of the holding of the chancellor depends upon the construction to be given article 19, section 15, of the Constitution of 1874, providing for the letting of contracts for public printing, the act of the Legislature passed for the purpose of executing this provision of the Constitution and the act of 1917, together with the act of 1919, supplementary thereto, providing for the letting of the printing of certain volumes of the Arkansas Supreme Court Reports.

Article 19, section 15, of the Constitution of 1874, reads as follows: “All stationery, printing, paper, fuel for the use of the General Assembly and other departments of government, shall be furnished, and the printing, binding and distributing of the laws, journals, 'department reports and all other printing and binding, and the repairing and furnishing the halls and rooms used for the meetings of the General Assembly and its committees, shall be performed under contract to be given to the lowest responsible bidder, below such maximum price and under such regulations as shall be prescribed by law. No member or officer of any department of the government shall in any way be interested in such contracts, and all such contracts shall be subject to the approval of the Governor, Auditor and Treasurer.”

The act of November 28, 1874, makes the Governor, Auditor and Treasurer of State, ex-officio commissioners to superintend the letting of the public contracts provided for in the section of the Constitution just referred to. That act also prescribed the regulations for letting such contracts.

In 1889 the act was amended to make the Governor. Secretary of State and Auditor ex-officio commissioners to superintend the letting of all public contracts for all the purposes set forth in article 19, section 15, of the Constitution of 1874, and the act further provides that they shall discharge their duties in the manner hereinafter prescribed. Crawford & Moses’ Digest, §§ 9190 et seq.

The record in the instant case shows that the Governor, Auditor and Secretary of State advertised for bids and let the contract under consideration to the Calvert-McBride Printing Company in November, 1917. The record also shows that no advertisement for bids was made under the statute passed in 1919, and that no new contract was let for the work done under it. The money provided for in that appropriation was paid out by the board under the contract made in November, 1917. The Governor ¡and Auditor signed the contract and also signed the minutes of the board’s meeting at which the contract was let. The Treasurer did not approve the contract, nor was he called upon to do so. He had nothing whatever to do with making or approving it. At the outset it may be said that the provision of the Constitution with regard to letting the public printing and the regulations prescribed by the statute for letting such contracts is mandatory.

In Woodruff v. Berry, 40 Ark. 251, in discussing this question, the court said: “The end proposed in the constitutional provision requiring contracts to be let to the lowest bidder is public economy. And the means provided by the Legislature is an extended notice in the public journals so as to ensure publicity and secure competition. The established policy of the State upon this subject is that public contracts are to be let upon public notice, and to be open to competition upon proposals and are to be made with the lowest bidder who can give'due security. The entire authority of the board to let such contracts is conferred by statute, and the statute prescribes how only they can contract. Any other contract is unauthorized, in excess of the powers vested in the board and voidable at the election of the State.”

Again in Hodges v. Lawyers’ Co-operative Pub. Co,. 111 Ark. 571, the court held that'the publication of the Arkansas Supreme Court Reports fell within the provisions of article 19, section 15, of the Constitution, and that that part of it requiring such contracts to be let to the lowest bidder is mandatory. The section of the Constitution in question provides that all such contracts shall be subject to the approval of the Governor, Auditor and Treasurer. Before this is done no contract is made. These officers might consider all the bids too high and refuse to have the work done at the prices bid, or for some other legal and sufficient reason might not approve the contract. The language used is plain and unambiguous, and it is apparent that the requirement that the contract shall be approved by the designated officers is mandatory.

In Woodruff v. Berry, 40 Ark. 251, the contract was held invalid because the notice required by the statute was not given and because there was a combination among the bidders to stifle competition. The contract in that case was let by the Governor, Auditor and Treasurer, acting as a board of commissioners to superintend the letting of public contracts under the act of November 28, 1874, constituting these officers as such board. The opinion in that case is silent upon whether the officers designated by the Constitution to approve the contracts could, under the statute, be made a board for the letting of such contracts.

The silence of the court on the question in that case can not be said to be a recognition on the part of the court that the Legislature had the power to constitute the Governor, Auditor and Treasurer a board to superintend the letting of printing contracts for the State. The construction of a provision of the Constitution is a matter of too much public importance to be decided by the mere omission of the court to pass upon a question in a given action unless the decision of the case necessarily involves a' construction of the provision of the Constitution in the respect named.

As we have already seen, the decision of the court in the case just referred to proceeded upon other grounds, and we do not consider that the question now presented was decided in that case.

It is contended that, inasmuch as all such contracts shall be subject to the approval of the Governor, Auditor and Treasurer, this necessarily gives the Legislature the power to provide a board to superintend the letting of printing contracts composed of all these officers. For example, it is said that, if the Legislature should name a board composed of the Governor, Auditor and Treasurer, the letting of a contract by said board would necessarily constitute an approval of such contract by these officers. A majority of the court, however, is opposed to this view. We believe that the language used by the framers of the Constitution contains an implied prohibition against giving these officers the power to let contracts for the public printing. The authority conferred is that all such contracts shall be subject to the approval of the Governor, Auditor and Treasurer. This necessarily implies that the letting of the contracts shall be performed by another officer or officers. All of us are of the opinion that the present statute, conferring the power upon the Governor, Auditor and Secretary of State to let the contracts for the public printing, is unconstitutional. A majority of the court is of that opinion, as above stated, because there is an implied prohibition against placing the Governor, Auditor or Treasurer upon a board to superintend the letting of the contracts which the Constitution requires shall be made subject to their approval. Thus successive steps are directed to be tallen in the execution of such contracts,. and nowhere does the Constitution provide that either of the steps required to be taken shall be conclusive. Each step is intended as' a distinct and successive safeguard to protect the State against collusion and extortion. In this way the interest of the public is better safeguarded, and there is a double check against imposition and extravagance.

It is also contended that the Governor, Auditor and Treasurer act collectively or as a body in approving the contracts, and that the action of a majority is sufficient-To sustain this contention, reliance is placed upon the common-law rule laid down in 22 R. C. L., p. 456, and 29 Cyc., p. 1434, and authorities cited to the effect that where the execution of a power of a public nature is conferred upon two or more persons it may be exercised by a majority of those intrusted with it. In most of the adjudicated cases upon the subject that have been called to our attention, it is evident, from the act to be done, that the power must be executed jointly and not separately. For example: in case of school directors, appraisers, arbitrators, commissioners to make contracts to erect public buildings, and also cases where three or more State officers are empowered to appoint another officer, the nature of the act to be performed in each case requires the joint action, or a concert of action on the part of the officers intrusted with the power.

So here, if the framers of the Constitution had given the Governor, Auditor and ‘Treasurer the power to make or let contracts for the public printing, the nature of the act to be performed would have required them to act jointly. The framers of the Constitution, however, intended that contracts for the public printing should be let by another officer or officers, but that they should be subject to the approval of the Governor, Auditor and Treasurer. The word “approval” means that the contracts should receive the official sanction of the officers named, and that this should be given separately. Because their approval is necessary under the Constitution, we must reach the conclusion that their action is designed to be a check upon the action of the board. Each of the officers named is fitted by reason of the duties of his office to pass judgment upon the action of the board. The contract when made can be passed from one to the other for his approval in order that he may give the public the benefit of his judgment and official sanction. It is in the nature of a veto power, and each of the officers can withhold his approval and thus veto the contract.

It is claimed that the wheels of government might be blocked unless the Governor, Auditor and Treasurer are required to act jointly and not separately in giving their approval. In the first place we have nothing to do with the wisdom or expediency of the provision. In the next place, it is no more to be supposed that one of these State officers would violate his oath of office by wilfully or capriciously withholding his approval than it would be to presume that two of them might get together and approve a contract let to a favored bidder. We will indulge in neither presumption, but will indulge in the presumption that each officer will perform the duty imposed upon him by the Constitution without regard to any supposed public or private advantage to himself.

The first rule of construction is that where the language used in a Constitution is plain and unambiguous, the court can not seek other aids of interpretation. Other State Constitutions contain provisions similar to our own with regard to public printing, except that the approval of the contracts is given to the Governor and Treasurer; still others leave the approval to .the Governor alone. A majority of the court is of the-opinion that the framers of the Constitution intended that the approval of contracts for public printing should receive the individual judgment of each of the officers named and that they act separately in giving or withholding their approval. Such is the holding of the Supreme Court of Montana in State v. Hogan, 56 Pac. 818, and State v. Smith, 57 Pac. 445. In that State the Constitution provided for the approval by the Governor and Treasurer, and it is contended that this called for an application of the rule that public authority conferred on two can not be exercised by one without the other’s consent, because the number does not admit of a majority.

The court might have placed its decision on that ground, but it did not see fit to do so. It placed its decision squarely on- the ground that the framers of the Constitution intended that the G-ovemor and Treasurer should act separately in giving, or withholding his approval of the contract. The court said that the Constitution did not require them to give any reasons for their action, and that, on account of the peculiar duties of their offices, each was presumed to be especially informed as to the condition of the State-’s finances, and that it was thought proper to give the State the benefit of his judgment by requiring such contracts to be approved by him.

The Treasurer was not called upon to approve the contract in question, and did not do so. Therefore, it necessarily follows that the contract was not executed in accordance with the provision of the Constitution regulating the letting and approval of such contracts, and for that reason is not a valid and binding contract upon the State.

The work done under the statute of 1919 would be invalid for another reason. The original statute, which was passed in 1917, provided for the letting of the contract to the lowest and best bidder after being duly advertised. Acts of Ark., 1917, vol. 2, p. 1217. The act of 1919 simply provides for the appropriation of $30,000 to be used and expended for the reprinting of such volumes of the original Arkansas Supreme Court Reports as are, or may shortly be, out of print. No provision is contained in the act for letting the contract to the lowest bidder. General Acts of 1919, p. 186. The work in question was done under the act passed in 1919. If for no other reason, the contract under consideration would be invalid because it was not let to the lowest bidder, as required by the provision of the Constitution above quoted and referred to.

It is insisted, however, by counsel for the defendants that this is merely an appropriation bill to pay the Calvert-McBride Printing Company for work done under the terms of the contract dated November 2, 1917, and that therefore a new letting was unnecessary. We can not agree with counsel in this contention. New volumes of the Supreme Court Reports must necessarily be printed as new opinions are prepared and handed down. If the contention of counsel be sustained, it would follow that the Legislature could make one contract for the reprinting of the Supreme Court Reports and that every subsequent Legislature might appropriate money for the continuation of this work at the same price, regardless of changed conditions. It is obvious that such contention could not be sustained. Article 5, section 28, of the Constitution of 1874 provides, in effect, that no money shall be drawn from the treasury except in pursuance of specific appropriations made by law and that no appropriations shall be made for a longer period than two years. Article 16, section 12, of the Constitution provides that no money shall be paid out of the treasury until same shall have 'been appropriated 'by law, and then only in accordance with the appropriation.

The contract entered into in 1917 could only be for the amount named in that appropriation. The Legislature of 1919 had the power to continue the wbrk, but a new contract must have been let in accordance with the Constitution and act of the Legislature regulating the same.

It follows that the Legislature of 1919 had no-power to make an appropriation for continuing the work of reprinting the Arkansas Supreme Court Reports under a contract made in 1917.

It is claimed, however, that the present contract has been for the most part executed, and that, on account of the increase in the cost of printing, a substantial sum of money was saved to the State by continuing the work under the contract made in 1917. It is true the record shows that the contract under consideration was entered into and carried out in good faith by all parties concerned, and that they believed it was a valid and binding contract. This, however, does not constitute a reason for its enforcement by the courts. In Woodruff v. Berry, 40 Ark. 251, it was held, in effect, that individuals as well as courts must take notice of the extent of authority conferred by law upon persons acting in an official capacity. The court further said that the State is not responsible for the mistakes of her officers and agents, nor bound by their unlawful acts. Hence the fact that all parties concerned acted in good faith and for the best interests of the 'State is no defense to the present action. The fact that the 'Calvert-McBride Printing Company performed valuable services for the State in good faith upon a contract believed to have been legally entered into by its properly constituted officers could at most only create a moral obligation on the part of the State to pay for the services, which, because it can not be enforced in the courts, addresses itself to the legislative department of the State government.

It follows that the decree must be reversed and the cause will be remanded for further proceedings in accordance with law and not inconsistent with this opinion.

McCulloch, C. J., and Smith, J., concurring.

Smith, J.

(concurring). I concur in the holding that the Treasurer could not be left off the board while the Governor and Auditor were made members thereof. Practically speaking, officers would be expected to approve a contract which they had let. So that, if the Governor and Auditor were made members of the board to let the contract, the Treasurer should also have been made a member, otherwise the two officers who assist in letting the contract might become committed to its approval before the matter was taken up with the Treasurer, as the Constitution evidently contemplated.

But I perceive no reason why the three State officers might not be authorized to let the contract as well as to approve it if they were all three put on the board. Whatever might be said of the policy of legislation of that character, I see no constitutional objection to it.

The Constitution contains no inhibition to that effect the only provision being that “no member or officer of any department of the government shall in any manner be interested in such contracts, and all such contracts shall be subject to the approval .of the Governor, Auditor and Treasurer.”

The approval of the contract by these officers was the thing desired, and that would be obtained if they were made members of the board which lets the contract in the first instance. I think the case of Woodruff v. Berry, 40 Ark. 251, accords with this view.

I do not agree with the majority in the view that these State officers must separately and severally approve the contracts mentioned in this section 15. This is a very comprehensive section, and includes many matters of detail, as it covers all contracts for stationery, printing, paper, fuel, whether for the use of the General Assembly or the other departments of government, and the printing, binding and disbursing of the laws, journals, department reports, and all other printing and binding, and the repairing and furnishing of the halls and rooms used for the meeting of the General Assembly and its committees. The very extent and variety of the duties imposed on the three constitutional officers in regard' to these contracts suggests alike the wisdom and necessity for conference and consultation, if the purpose of the Constitution is to be subserved.

Ordinarily, the purpose of conferring authority upon more than one person to perform an official duty is to secure the benefit of conference and consultation, and there is nothing in the language quoted to indicate a contrary intention here. Certainly the necessity and advantage of such action is as apparent here as in other cases where important contracts are to be made or important action taken.

The majority has held that these officers do not act collectively. They may meet together, or not, as they please. Each is given the veto power. The right of the majority to rule is destroyed. An obdurate officer may, by withholding his own approval, coerce the majority or embarrass tbe public administration. A result so full of deplorable possibilities should not be brought about unless the writers of the Constitution have so expressly ordered.

Section 9755, C. & M. Digest, was the law in this State when the Constitution of 1874 was adopted. It reads as follows: “An authority conferred upon three or more persons may be exercised by a majority of them;, and a majority of three or more persons may do any act directed to be performed by them. ’ ’

The Constitution did not repeal all existing laws. It repealed only those which conflicted with its own provisions. Here is a statutory rule of construction which existed when the Constitution was adopted, and it is stlil the law. Is it not fair to assume that if the framers of the Constitution had intended that this statutory rule of construction should not apply to the language.under consideration, they would, in some manner, have indicated that intent? As a matter of fact, the statute quoted was merely declaratory of the common law, as will later appear in this opinion.

The reasoning of the court in the case of School District v. Bennett, 52 Ark. 511, is applicable here. The court there construed the statute under which school directors make contracts for the employment of teachers, and Judge Hemingway, speaking for the court, said: “Is it necessary that a contract, to be binding on the district, should be executed at a board meeting, at which all the directors are present, or of which the one absent had notice ?

“We appreciate the practical importance of this question, but entertain no doubt as to its proper solution, either on reason or authority. The different members of a board, scattered in the pursuit of their several avocations, are not the board. Duties are . cast upon boards composed of a number of persons, in order that they may be discharged with the efficiency and wisdom arising from a multitude of counsel. This purpose can not be realized without a conference between the members of the board with reference to the matters intrusted to them before they take action thereon. After conference, the board will often escape unwise measures, to which each of the members acting separately would have committed themselves either from haste, immature consideration, the demands of private engagement or an unwillingness to shorten the allotted span of life under the entreaties of an importunate agent or teacher.

“The public select each member of the.board of directors, and is entitled to his services; this it can not enjoy, if two members can bind it without receiving or even suffering the counsel of the other. Two could, if they differed with the third, overrule his judgment and act without regarding it; but he might by his knowledge and reason change the bent of their minds, and the opportunity must be given him.

“We conclude that two directors may bind the district by a contract made at a meeting at which the third was present, or of which he had notice; but no contract can be made except at a meeting, and no meeting can be held unless all are present, or unless the absent member had notice.”

In my opinion, the wisdom of conference and consultation on the part of these State officers is no .more certain than is their duty to meet and confer under the authorities. And when they have thus met and considered their duties, the conclusion of the majority should prevail. The reason for this rule is the same now as it was when the rule was established at the common law. This reason, as stated by the Supreme Court of Nebraska in the case of State v. Bemis, 64 N. W. 338, is that the public interest shall not be prejudiced by the caprice or neglect of a single member of a public foody. A substantially similar statement- of the reason for the rule appears in the quotation from Coke on Littleton, which I copy later into this opinion.

In the case of First National Bank of North Bennington v. Town of Mount Tabor (52 Vt. 87), 36 Am. Rep. 734, the Supreme Court of Vermont construed a statute of that State which authorized a town to issue bonds upon the written assignment of a majority of the taxpayers, certified by three specified commissioners. Two of the commissioners signed the certificates, but the third refused to concur. Held, that the certificate was properly certified. The opinion in the case evinces much learning and research. The learned judge who wrote the opinion quotes from Lord Coke (Co. Litt. 181 b) as follows:

* ‘ ‘ Secondly, there is a diversitie between authorities created by the partie for private causes and authoritie created by law for execution of justice. * * * If the sherife upon a capias directed to him make a warrant to foure or three joyntly ¡or severally to arrest the defendant, two of them may arrest him, because it is for the execution of •justice, which is pro bono publico, and therefore shall be more favourably expounded, than when it is onely for private; 'and so hath it beene adjudged. Jura publica ex privato promiscué decidí non debent.’ ”

The opinion then proceeds to say: ‘ ‘ Following and applying this principle, the decisions down through the English reports, though not numerous upon this point, are clear that when an act is to be done by several which is matter of public concern, all must meet and confer, and the majority may then decide.”

The American cases on the subject are very numerous, and appear to have followed the English rule with unbroken unanimity.

The case of Bartley v. Meserve, 36 L. R. A. 746, is one in which the Supreme Court of Nebraska went exhaustively into the subject, as is reflected by the opinion in that case. Norval, J., speaking for the court, said: “The rule is well settled that where authority is committed to three or more persons to perform a public duty or trust, if they all meet for the purpose of executing it. a majority will decide. The authorities all so hold, and the Attorney General has cited no case, nor after diligent search have we been able to find a single one, which conflicts therewith. ’ ’

The writer of this opinion has continued that investigation with some diligence and with equal lack of success in finding a conflicting authority.

In Sedgwick on Statutory and Constitutional Law, page 331, it is said: “In regard to the number, requisite to constitute a quorum of the members of a public body, or the number requisite to do business, it has long been settled that, where a statute constitutes a board of com-' missioners or other officers to decide any matter, as to open books, to receive subscriptions, and distribute the stock of a railroad company, but makes no provision that a majority shall constitute a quorum, all must be present to hear and consult, though a majority may then decide.”

A similar statement of the law is found in sections 105 and 106 of Throop on Public Officers. Likewise, in Lewis’ Sutherland, Statutory Construction, vol. 2 (2 ed.), § 562. See, also, Cooley, Constitutional Limitations (7 ed.), page 893; Mechera, on Public Officers, § 572.

In the note to section 115 of the article on Public Officers, 22 R. C. L., p. 546, a number of annotated cases are cited, which collect a very large number of cases from many courts on the subject.

One of these cases is that of Bartley v. Meserve, supra. There a statute of the State of Nebraska required that bonds under the depository law should run to the people of the State of Nebraska and be approved “by the Governor, Secretary of State and Attorney General.” It was pointed out that the statutedid not constitute those three officers a general board for the approval of bonds of State depository banks, this being done for the purpose of distinguishing the statute from one which had been construed by the Supreme Court of that State in which certain officers had been .expressly constituted a board. After recognizing the distinction between the two statutes, the court said that it did not follow that the case was not controlled by the decision of the court concerning the manner of the discharge of duties by officers who were expressly constituted a board. There is an extensive review of the authorities, and the court said: “The principle deducible from the numerous authorities on the subject is that where three or more persons are intrusted by law with powers of a public character or nature, and, in the execution thereof, all of them are assembled, or have been duly notified of the time and place of meeting, the decision of the majority is binding, whether the statute authorizes a majority to act or is silent. Applying this rule to the facts before us, it is very evident that the approval of the Governor was not essential to the validity^ of the bonds of the depository banks, since he was present with the other two State officers when the bonds were approved.”

If it be said that the Montana cases cited in the majority opinion support the conclusion there announced, then it may also be said that they stand alone. But, with all deference to the majority, I think those cases have been misinterpreted. In the first place, both cases involve a construction of the same contract, as appears from the second opinion. So that, in effect, they constitute one case and are, of course, by the same court. In that State there was a board to let printing contracts, subject to the approval of the Governor and Treasurer. The first case reported was a proceeding to mandamus the Secretary of State to furnish copy for the printing, it being alleged that a contract existed between the printing company, and the printing board whose business it was to let the printing contract. But in neither case was there any showing that either the Governor or Treasurer had approved the printing contract; and the first case was disposed of on the ground that there was no contract until these officers had approved the contract.

The second case, instead of being brought against the Secretary of State to compel him to furnish copy for the printing, was brought against the Governor and the Treasurer bo compel them to approve the contract, neither of whom had doné so. The insistence was “that the provision of the Constitution, swpra, requiring approval by the Governor and Treasurer, and of the statute passed in pursuance of the Constitution, imposes a mere ministerial duty upon those officers, and that their refusal to approve the contract is capricious and arbitrary and therefore subject to review by this court.” The point at issue was the extent of the jurisdiction of the courts by mandamus to control action of the executive departments of the government. There was a learned discussion of that subject, which concluded with the statement that the action of . a State executive may be controlled in a purely ministerial act which does not involve executive judgment and discretion, but not in one which does require such discretion.

The court then proceeded to discuss the question whether the approval of the contract was ministerial only, and, as opposing the view that it was, states the opportunities of these two officers to pass on the questions involved with advantages to the State and to the public, by virtue of the information obtained in their respective offices. The opinion does not state how they shall discharge their duties. The statement upon that subject is: “ The Constitution does not define the extent to which they must go in the investigation of the action of the board, nor does it require that they must act together or state any reason for their action. ’ ’

But, aside from all this, the Montana cases can not be authority on the question here discussed, for the reason that only two officers constitute the board in that State to approve public contracts, and there could be no action but by both members. If both agree at all, the agreement is unanimous. This is a mere matter of arithmetic.

It may be said in passing that the statute construed in the Montana cases made the Governor a member of the board which let the contract, and the statute was not held unconstitutional on that account, although it was referred to as unfortunate, for the reason that “it put him (the Governor) in a position where he can refuse to approve the action of a majority of the hoard of which he is a party and thus put his veto upon proceedings in which he takes part. Nevertheless, his duty as a member of this board in relation to these contracts is statutory, while his duty in approving or disapproving the action of the board is constitutional; and we are of the opinion that under the provision of the Constitution it was designed that he and the Treasurer should do more than approve, in a ministerial way, the action of the board in letting the contract. ’ ’

Believing that the decision of the majority on the subjects discussed in this opinion is highly unfortunate as a matter of policy, unsound in principle, and contrary to all of the authorities on the subject, I dissent from the holding that no conference on the part of these officers was contemplated and that three separate and several vetoes may be exercised and also from the holding that there are constitutional objections to making these officers members of a board to let the contracts.

McCulloch, C. J., concurs in the views here expressed.


author: Smith, J.

text:
    Rose v. Maas Brothers.
    Opinion delivered January 31, 1921.
    1. Customs and usages — contracts.—It must be presumed that parties to a sale of cotton for October delivery contracted with reference to an established custom of the trade that the seller had until the 31st day of October to make delivery.
    2. Sales — instruction as to repudiation of contract. — In an action by the buyers for failure to deliver cotton purchased, an instruction that if, before or at the time of the delivery of the memorandum of sale, the seller stated that the agreement was not binding, then the verdict should be for the defendant, was properly refused, as the statement of the seller did not necessarily repudiate the contract if there was an intent to consummate it and delivery was made for that purpose.

      3. Sales — delivery of memorandum to third person. — Delivery of a memorandum of a contract of sale by the seller to a third person was sufficient if that delivery was made for the benefit of both parties.
    4. Sales — grade of cotton. — An agreement to deliver cotton of a certain grade is not complied with by the seller delivering cotton grown by him but not of the grade specified.
    Appeal from Jefferson Cir.cnit Court; W. B. Sorrells, Judge;
    affirmed.

      Taylor & Jones, for appellant; Rowell & Alexander, of counsel.
    1. The court erred in refusing to give instruction No. 1 for defendant.
    2. It was also error to refuse No. 4 for defendant.
    3. Also error to refuse to give No. 7 for defendnat.
    4. It was error to admit the testimony of E. B. Bloom, and to permit Bloom to answer certain questions.
    The plaintiff alleged, and the proof showed, that at the time the contract is alleged to have been entered into, Maas and Rose entered into oral negotiations in which Maas was undertaking to buy from Rose cotton grown by Rose on his plantation near Lake Farm, Arkansas. After the oral negotiations had reached'a certain, point a written memorandum of agreement was made and signed by both parties. It was written by E. B. Bloom, cashier of the Citizens’ Bank of Pine Bluff, in the directors’ room of the bank. A contract was made for delivery of the cotton which was binding on both parties, and it was error to refuse the instructions asked by Rose. The contract or memorandum was not binding on Rose unless delivered, and no delivery is shown. There is no testimony to show that Bloom was the agent of Maas, either general or special. The testimony shows that Bloom was more likely the agent of Rose.
    A delivery of a written contract is essential to constitute a binding obligation, and a written memorandum executed to avoid the statute of frauds must be delivered before the statute will become inoperative. 51 Ark. 485; 102 Id. 377. See, also, 89 Ark. 191; 128 Id. 605. It can not be said that the memorandum was an escrow, and, it being admitted that the paper was not delivered to Maas and the evidence failing to show that it was delivered to Bloom as the agent of Maas, there was no delivery to any one so as to make it a binding obligation or take it out of the- statute of frauds. See 134 Ark. 284. The failure to give instructions. 1 and 4 are reversible errors.

      Coleman & Gantt, for appellee.
    1. The memorandum shows for itself that the con-' tention of appellant is not correct. It specifies the grade and staple of the cotton to be delivered; and if a dispute had arisen as to whether the cotton delivered was of the required class, it would have presented only a question of fact easily determined. Even if it be true that appellant was under a misconception as to the binding effect of the writing he signed, that did not avoid the contract. 223 S. W. 564. The writing would be sufficient if not signed by appellee at all. 137 Ark. 414.
    2. If delivery was essential, there was certainly a sufficient delivery. 77 Ark. 89; 140 Id. 579; 97 Id. 283; 132 Id. 469; l8 R. C. L. 282, 291; 10 Penn. St. 285; 51 Am. Dec. 478; 140 Mo. 309; 67 Am. Dec. 261; 8 Id. 447. According to the weight of authority, the delivery of a memorandum in writing evidencing a sale of goods is not essential. L. R. 1 C. P. 1; 2 M. & W. 653; 42 Am. Rep. 343; 26 S. W. 539; 58 S. E. 444; 138 Am. St. Rep. 30; 91 N. E. 509; 88 Pac. 525; 91 N. W. 467; 184 Fed. 419; 25 R. C. L. 675; 3 Ann. Cases 405; 1' Williston on Cont., §579.
    3. There is no error in the instructions given, arid No. 7 requested by defendant was erroneous and not the law. The terms of a written contract can not be varied by parol testimony. 140 Ark. 182; 218 S. "W. 380; 139 Ark. 53; 136 Id. 507. The evidence fully sustains the judgment, as the value of the cotton, and appellee’s dam- . age were fully proved.
   Smith, J.

Appellees, who were the plaintiffs below, are engaged m the business of buying and selling cotton in the city of Pine Bluff under the name of Maas Brothers, and appellant, Bose, who was the defendant below, is a planter engaged in growing and. selling cotton and other farm products. On or about October 15, 1919, S. L. Maas, of Maas Brothers, discussed with Bose the purchase of one hundred bales of cotton of an average weight of 500 pounds each which Bose represented had been grown by him on his plantation near Lake Farm, about half of which cotton had then been picked and ginned. After apparently coming to an understanding the parties met in the directors’ room of the Citizens’ Bank in Pine Bluff, where the details of the contract were again discussed in the presence of Mr. Bloom, a vice-president of the bank. Bose was a customer of the bank and conducted all his .business through it, and desired that Bloom should know what he was doing with his cotton. After the details had apparently been agreed upon, Bloom, at the suggestion of one or the other or of both parties, drew up a contract to cover the transaction. That writing read as follows:

“Pine Bluff, Ark., Oct. 15, 1919.
“Mr. A. D. Bose,
Pine Bluff, Ark.
“Dear Sir:
“This will confirm our purchase today for 100 — one hundred bales of cotton October, 1919, delivery at 45c per pound, delivered at Pine Bluff, Ark. Fifteen bales 1 1-16 balance 85 bales strict to good middling'1 1-8 to full 1 1-8.
Yours truly,
“Accepted. “Maas Bros.
“A. D. Bose.”

Bose read and signed the contract and, after doing so, stated that the contract was not valid because it lacked mutuality, inasmuch as it only bound him to sell without binding- Maas Brothers to buy. In this he was, of course, mistaken, as the contract described the cotton sold, the time and place of delivery, the grade and staple, and the price, and confirms the purchase of it that day made from Bose by Maas Brothers.

The testimony is undisputed that Bose did make the statement, after signing the contract, that it lacked mutuality; but the testimony is conflicting as to what thereafter occurred. The testimony of Bose would have supported a finding by the jury that the minds of the parties had never fully met, and that he left the place of conference under the impression that no contract had been made, although he admits that the writing was left in the possession of Bloom with directions to keep.

The testimony of Bloom and Maas support a contrary finding, as, according to their version of the matter, the minds of the parties fully met on all the essential details, and, notwithstanding the objection made 'by Bose, after signing the contract Bose himself either gave the contract to Bloom to keep for both parties or consented to that action, and Bloom did file it away as the written evidence of the contract which the parties had made. About a week or ten days later Bose requested Bloom to let him see the contract, and cut his' signature from it. Bloom told Bose that he was representing both parties and holding the agreement for both of them, and, at his request, Bose put his signature back on the contract.

It was shown that the term “October delivery,” appearing in the contract, had a well-defined meaning in the cotton business, and meant that the seller should have until the 31st of that month in' which to make the delivery. And it was also shown that it was generally understood in the cotton trade that the standard weight for a bale of cotton is 500 pounds. It must be presumed, of course, that the parties contracted with reference to these established customs of the trade.

Cotton of the kind specified in the contract advanced rapidly in price from about that time until it had reached —when delivery was due — a price of 60 cents a pound. Maas made demand — before delivery became due — for the delivery of the cotton; but this was refused by Rose. Whereupon this suit was brought to recover the difference between the contract price and the market price. There was a trial and judgment for Maas Brothers, from which- is this appeal.

The court, at the request of the respective parties, gave a number of instructions which, in effect, submitted to the jury the question whether the parties had fully agreed on the terms of the contract, and had left the writing with Bloom to evidence that agreement.

The court refused an instruction numbered' 1, asked by Rose, which told the- jury that if, before or at the time of the delivery of the memorandum to Bloom, Rose stated, in the presence of Maas, “that the agreement was not binding and did not constitute a contract, then your verdict will be for the defendant.” This instruction was properly refused. The statement of Rose did not necessarily repudiate the contract if there was an intent to consummate it, and if it was delivered to Bloom for that purpose. The jury might have -concluded that, notwithstanding this statement, Rose delivered the writing to Bloom or consented to its delivery to Bloom for the purpose of completing the contract — and there was testimony to support that finding. But the instruction, had it been given, would have withdrawn that question from the jury, and it was therefore properly refused.

An instruction numbered 4, requested by Rose, was also refused. This instruction reads as follows:

“4. If you believe from the evidence in this case that at the time the memorandum of agreement was executed in the Citizens ’ Bank, that no delivery of the memorandum was made to the plaintiff, then the plaintiff is not entitled to recover in this case. The mere leaving of the memorandum with Mr. M. E. Bloom without instructions as to whom it should be delivered, or the purpose for which, it should be held by him, will not constitute delivery.”

This instruction was properly refused, as it made delivery of the memorandum to the plaintiff essential; whereas delivery to'Bloom would have sufficed if that delivery had been made for the benefit of both parties. The instruction told the jury, however, that leaving the memorandum with Bloom would not constitute delivery unless Bloom was given instructions as to the purpose for which he should hold it and the person to whom he should deliver it.

The jury might have found that directions to Bloom were not necessary as he had heard the entire discussion and wrote the agreement.

It is insisted that no contract was made because the minds of the parties had never fully met on the essential details of the sale. But, if the parties signed the writing set out above for the purpose of executing a contract, there could be no question of the meeting of the minds of the parties, as the writing itself constitutes a complete and enforceable contract, but that question was fully covered by instruction numbered 1, given at the request of Maas Brothers, and instructions numbered 2 and 3, given at the request of Rose. Instruction numbered 2 told the jury there must be a meeting of the minds of the parties with reference to every essential element of the contract, and if the minds of the parties had not so met to find for the defendant.

Instruction: numbered 3 told the jury that, as the execution of the contract was denied, the burden of proof was on plaintiffs to prove, by a preponderance of the testimony, that a contract was entered into, and the terms of that contract definitely and mutually understood by both parties, and that plaintiffs could not recover until they had discharged that burden.

An instruction numbered 7, reuested by Rose, was also refused by the court. This instruction would, if given, have told the jury, if damages were assessed, to take into account the cotton grown by Rose, rather than cotton of the grade and staple described in the memorandum; the instruction being based upon the assumption that the contract had been made with reference to specific cotton. This instruction was properly refused for several reasons. First, Maas demanded the cotton grown by Rose under this contract ;■ and Rose refused to make delivery. The testimony does not show that the first 100 bales to be ginned, with reference to which it is said the parties contracted, did not meet, the requirements of the contract. Rose testified in regard to the sale of this cotton, which was sold along with a lot of 153 bales, in which he admitted there was some low-grade cotton. But, besides this, Rose contracted to deliver cotton of specific grade and staple, and that contract could have been complied with by delivering cotton of that grade and staple whether grown on 'his farm or elsewhere. It was not made a stipulation in the contract that the cotton should come from his farm. Soudan Plantation Co. v. Stevenson, 83 Ark. 163.

It was his duty, therefore, to deliver cotton of the contract grade and quality, whether it came from his farm or elsewhere, and the instruction on the measure of damages so declared the law.

Other assignments of error are presented; but we think they do nut require discussion.

No prejudicial error appears, and the judgment will, therefore, be affirmed.


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

text:
    Lamew v. Townsend.
    Opinion delivered January 31, 1921.
    1. Landlord and tenant — tenancy prom year to year. — A tenancy from year to year may be created either by express agreement or by a lease for one or more years and the holding over of a tenant and payment of an annual rental after the first year without a new contract.

      2. Landlord and tenant — lease—termination.—Under a lease for one year with option to continue from time to time as long as conditions are satisfactory to both parties, the continuance of the lease after the first year was conditioned upon its being mutually satisfactory, though neither party had a right to act arbitrarily or capriciously, and each was entitled to reasonable notice from the other of intent to terminate.
    3. Landlord and tenant — reasonable notice to terminate lease. —What is a reasonable notice to terminate a tenancy from year to year depends upon the custom of the country and the circumstances of the particular case, and is a question for the jury.
    4. Landlord and tenant — notice to terminate lease. — Notice to terminate a lease from year to year pursuant to a lease giving such right after the first year should have been given by the landlord before the end of the year; otherwise the law will presume an intention to extend the lease for the remainder of the new year.
    5. Landlord and tenant — notice to quit. — Where a lease for a year contained an option to continue subject to the approval of both parties, and the landlord gave notice during the second year to terminate the tenancy at the end of that year, notice to quit need not be served on the tenant by the landlord until after the beginning of the third year, as the landlord had a right to assume that the tenant would not hold over if he had previously given notice that the lease would terminate at the end of the second year.
    Appeal from Lawrence Circuit Court, Eastern District; D. H. Coleman, Judge;
    reversed.

      W. A. Cunmngham, for appellant.
    1. The contract created a tenancy from year to year; and, if it did not, a tenancy of that kind resulted from the holding over by the tenant and the payment of rent from year to year without a new contract. 1 Taylor on Land! & Ten., p. 39; 61 Ark. 377.
    2. Unless a different length of time is fixed by the contract or by statute, a tenancy from year to year can not be determined except by notice given at least six months before the end of the current year. Taylor on Landl. & Ten., p. 90; 65 Ark. 474; 70 Id. 351. No proper notice to quit was given, and it was error to instruct a verdict, as the court will give the evidence its strongest probative force in favor of appellant. This is too well established to need a citation of authorities.

      Smith <& Gibson and A. S. Irby, for appellee.
    1. The cases cited by appellant are not applicable, and the contention that the written contract referred to is a contract from year to year, and therefore appellant was entitled to six months’ notice to vacate is not sustained by authority. The court below construed the contract to mean a tenancy at will, but it was a contract for lease of lands at will. 40 How. Pr. 401 (N. Y.); 11 G-ratt. (Ya.) 527; 10 Tex. 137; 4 Litt. (Ky.) 232; 14 Am. Dec. 122.
    2. There was no question of fact for a jury, and it was not error to direct a verdict, as there was no evidence for a jury to pass upon. Appellee contends (1) that if appellant undertakes to hold, as he did under the written contract, it was merely a tenancy at will, and she had a right to evict him under three days’ notice in writing; (2) that if the written contract was abrogated or set aside in the fall of 1917, under appellant’s own testimony he could not claim possession of the place for more than one year at a time. There was nothing to submit to a jury, and the testimony shows it was a contract from year to year and there was nothing for a jury to pass upon. It was a contract for a tenancy at will, and the court below so properly held.
   Smith, J.

This is an action in unlawful detainer, and the decision of the case turns upon the construction of the following contract:

“Rent Contract.
“This contract, entered into this day by and between Belle Townsend, party of the first part, and W. L. Lamew, party of the second part, witnesseth':
“The party of the first part has this day let and leased to the party of the second part for the period of one year, with the option to continue from time bo time as long as conditions are satisfactory to both parties hereto, the farm known as the Lamew place, containing 234.50 acres, more or less (in Lawrence County, Arkansas), at a yearly rental of one-fourth of all cotton and one-third of all corn grown and to be grown on the said place during the pendency of this lease, cotton to be delivered at gin, and corn in crib on the farm. The party of the second part agrees to farm the place in a farmer-like manner, and turn over to the party of the first part one-fourth of all cotton grown on the place and one-third of all corn grown on said land, cotton to be delivered at gin and corn in crib on farm.
“Should party of the second part fail to work his crop in a good and farmer-like manner at any time, party of the first part reserves the right to enter and take possession of said crop and work it and deduct same from, second party’s share of said crop.
“Signed, September 21, 1916.
“Belle Townsend,
“By Boy Townsend.”

The court below' construed the contract as creating a tenancy -at will and directed a verdict in favor of the landlord.

It appears that a portion of this land was taken away from Lamew in 1918, and another portion in 1919; but Lamew testified that this was not done in abrogation of the contract, but was a mere release of a portion of the land from .the contract, and that the part retained by him was worked upon the terms and conditions specified in the contract. According to appellee, the contract was abrogated in the fall of 1917; but, as this testimony con.fliets with that of Lamew, we must accept his version of the matter, inasmuch as a verdict was directed against him.

Appellant insists that the contract created a tenancy from year to year, and that if it did not do so a tenancy of that character resulted from the holding over of the tenant and payment of rent from year to year without a new contract.

A tenancy from year to year may be created either by an express agreement, or by a lease for one or more years and the holding over by the tenant and the payment of an annual rental after the first year without a new contract. Belding v. Texas Produce Co., 61 Ark. 377.

In the case of Waterman v. LeSage, 142 Wis. 97, Judge Timlin, speaking for the Supreme Court of that State, said that, independent of statute, the weight of judicial authority appeared to be that, when a tenant, after the expiration of the term fixed by the lease at one year or less, continues to occupy the leased premises without any new contract, this may, at the election of the landlord, be considered a renewal of the prior lease for a like period and upon like terms. But he also said that the. matter rests in contract, and that the landlord and tenant may agree that the holding over shall be on different terms, or for a different period, and that the agreement may be proved like any other parol agreement.

■ So here the effect of this contract and the actions of the parties under it would have been to create a tenancy from year to year if there had been no language in the contract to indicate a contrary purpose. But we must give some effect to the provision of the contract that it is "to continue from time to time so long as conditions are satisfactory to both parties hereto. ”

Evidently the parties contemplated that the tenancy might continue for more than a year; but the continuance was conditional — the condition being that it remained mutually satisfactory. So long as the contract continued in force, its terms governed as to the respective shares of the crops which each party should have, and the place of division, and the manner of the cultivation of the land. The parties had the right to make that kind of contract, and it is our duty to give it effect. The dissatisfaction contracted against might have arisen within less than six months of the end of the year; and, even though these differences had previously arisen, they might become so accentuated when the crop was being harvested that one or the other of the parties might desire, to terminate the tenancy. They had mutually reserved the right to do so. In fact, this would appear to be the very contingency against which they have contracted. If the difference arose in the first half of the year, there would be time for the common-law notice of six months of the intention to terminate the tenancy, and the language quoted would be surplusage, as the right to terminate could be exercised, whether cause for dissatisfaction had arisen or not. But the language quoted gave that right whether the dissatisfaction arose in the first half or the last half of the year.

Of course, neither party had the right to act arbitrarily or capriciously, and each party was entitled to reasonable notice from the other of an intent to terminate the contract. As to what is reasonable notice depends upon the customs of the country and the circumstances of the particular case. It is a question of fact for the jury. And this notice of dissatisfaction should have been given before the end of the year, otherwise the law will presume a mutual intention to extend the contract for the remainder of the new year into which their operations had extended. Hayes v. Goldman, 71 Ark. 251. This is true because the contract contemplated a continuance until there was notice to the contrary. Bluthenthal v. Atkinson, 93 Ark. 252.

The notice to quit need not have been served until after the beginning of the year, as the tenant would have had the right to complete the year’s occupancy, and the landlord would have had the right to assume that the tenant would not hold over if he had previously given the tenant notice that the tenancy had ceased to be satisfactory. The notice to quit was served January 5, 1920, and this service was in time if the tenant had previously been given the notice to which he was entitled that the landlord desired to terminate the tenancy.

Lamew says, however, that the first notice which he had that the tenancy had ceased to be satisfactory and would be terminated was the notice to quit; and if this is true, the landlord has failed to give the notice required. This question of fact should have been submitted to the jury, and for the error in not doing so the judgment will be reversed and the cause remanded.

McCulloch, C. J.

(concurring). I think that the holding over by the tenant after the expiration of the first year expressed in the written contract created a tenancy “from year to year,” and that notice for six months prior to the end of the year was essential to terminate the tenancy. Holding over under the particular contract involved in this case created a typical tenancy from year to year. The original contract did not bind the parties to a renting for more than one year, and at the end of that period the contract terminated itself at the will of either party without notice. It may be true, as stated in the opinion of the majority, that the language of the contract evinces an intention to continue the tenancy beyond the term of one year specified therein, but the language is ineffectual to constitute an agreement to so extend it. It is not obligatory on the part of either the landlord or the tenant to extend the term beyond one year. It then took some further action on the part of the landlord’ and tenant to extend the term. Usually in such eases the mere holding over by the tenant beyond the stipulated term constitutes a tenancy at will, and acceptance of rent by the landlord is necessary to create a tenancy from term to term; but under some circumstances acquiescence by mere silence on the part of the landlord would create a tenancy from, term to term. The holding over of farm lands and preparations for the planting of a crop would doubtless be circumstances which would justify any court in holding that a tenancy from term to term had been created if no objection was made by the landlord, even without accepting rent.

The law on this subject is fully treated by Mr. Underhill in his work on Landlord and Tenant (vol. 1, 92, 97). Many cases are cited in support of the law there announced. The text contains the following statement which is controlling, I think, in the present case: “Lease of land for one year, with, a privilege of continuing the same from year to year, so long as both parties agree, creates a tenancy from year to year. ’ ’

In the Wisconsin cases cited in the opinion of the majority (Waterman v. LeSage, 142 Wis. 97), the court said: “But the weight of judicial authority seems to be that, independent of statute, when the tenant, after the expiration of a term fixed by the lease at one year or less, continues to occupy the leased premises without any new contract, this may, at the election of the landlord, be considered a renewal of the prior lease for a like period and upon like terms.”

I fail to see how the instant case can be distinguished from the very numerous cases on this subject because there is an unenforceable agreement in the contract to continue the tenancy for a longer period than one year. There is no conflict in the authorities to the effect that in a tenancy from .year to year notice for six months preceding the end of the year is essential to a termination of the tenancy. Underhill on Landlord and Tenant, § 112.

I agree to a reversal of the case, but I think the court bases the reversal on erroneous grounds, and that the majority are inconsistent in holding that a tenancy from year to year was not created, but that reasonable notice was essential to terminate the tenancy. If there was no tenancy from year to year, then the term ended at the end of each year, and either party had the right, without notice, to decline a further extension. If there was no tenancy from year to year, then the judgment ought to be affirmed. However, my conclusion is that there was a tenancy from year to year, and that the notice of six months was necessary in order to terminate it.


text:
    Osceola v. Haynie.
    Opinion delivered January 31, 1921.
    1. Estoppel — acquiescence.—One who expressly consented that a city jail might he erected in the street adjoining her property was estopped to complain of such erection; but one who saw the building in course of erection and made no protest was not estopped where the city did not rely on his silence; much less would an adjacent property owner be estopped who did not know of the erection of the building.
    2. Municipal corporations — diversion of street to other use.— Under Crawford & Moses’ Digest, §§ 7570, 7607, it is a city’s duty to keep the streets open, and it can not divert a street to uses and purposes foreign to that for which it was dedicated.
    3. Municipal corporations — injunction against nuisance in street. — Owners of property specially damaged by erection of a jail in the street are entitled to an injunction to remove the nuisance.
    Appeal from Mississippi 'Chancery Court, Osceola District; Archer Wheatley, Chancellor;
    affirmed.

      W. J. Driver, for appellants.
    The injury complained of should have been brought in the law court. It was a suit growing out of alleged injury and damages to plaintiff’s property by constructing a building sought to be declared a nuisance. The rule applicable to the issues here is clearly stated in 29 Cyc. 1210. This rule is approved in 73 Neb. 798; 19Í 111. 605; 12 Peters 91. The parties suing are estopped. They invited the location of the building and had notice and they failed to speak, object or interfere until the building was erected, which was incapable of removal and great expense incurred, and the parties are estopped by their acts and silence. Cases supra, and 51 Ark. 235. Upon the pleadings and evidence it was the duty of the chancellor to dismiss the complaint.

      J. T. Coston, for appellees.
    The obstruction of the street was a public, nuisance and a plain violation of the law, and the chancellor was right in his views and decision, as a plain case was made for the abatement of a public nuisance. 2 Pomeroy, § 805; 37 N. E. 220; 66 S. W. 11.
   Smith, J.

The plaintiffs in this suit — three in number — together owned all the lots in block 16 in Townsite Addition to the city of Osceola, and, in their complaint, alleged that the city had erected in Ford Avenue, which is one of the streets bounding said block, a building to be used as a jail and by the fire department, thereby creating a nuisance. The prayer of the complaint was that the city be required to remove the building, and from a decree granting the relief prayed is this appeal.

The answer admitted the erection of the building in the street, but denied that it interfered with the proper and free use thereof, and it was alleged that plaintiffs were estopped by tbeir conduct from prosecuting this suit.

Witnesses for the plaintiffs testified that the plaintiff’s property was greatly damaged by the erection of the building, and estimates of the damage varied from ten to fifty per cent, of the original value of the property.

The city made no attempt 'to show that the building in the street had not depreciated the value of the property,' but offered testimony to the effect that. Mrs. Bowen, one of the plaintiffs, was asked about' the building before its construction was begun, and that she gave her consent to its erection. As to one of the other plaintiffs, testi: mony was offered to the effect that he was advised of the city’s plans, and made no objection.

If it be conceded that Mrs. Bowen had, by her assent, estopped herself from subsequently complaining, it can not be said that this is true of the other plaintiffs. The testimony does show that C. C. Bowen, one of the plaintiffs, saw the building every day while it was being erected. But there is no testimony that the city council was influenced by his conduct. The construction of the building was begun without consulting him; and it is not shown that the third plaintiff who did not reside in the city even knew of its construction, and this plaintiff owned the lot adjacent to the city building.

In the case of Packet Co. v. Sorrels, 50 Ark. 473, it was said that authorities of a town or city can not lawfully appropriate or divert a street to uses 'and purposes foreign to that for which it was dedicated; and that it is not within the power of the Legislature to authorize its appropriation to private use nor to public purposes except in the manner in which private property can be taken for the use of the public under the right of eminent domain. The city had no right to close the street. Upon the contrary, it was the duty of the city to keep the street open. C. & M. Digest, §§ 7570 and 7607; Little Rock v. Jeuryens, 133 Ark. 126.

The plaintiffs here have shown a damage in addition to that sustained by the public. Their property has been damaged in value, and under numerous decisions of this court they are entitled to an injunction to remove the nuisance. Dickinson v. Ark. City Imp. Co., 77 Ark. 570; Matthews v. Bloodworth, 111 Ark. 549; Wellborn v. Davies, 40 Ark. 83; Packet Co. v. Sorrels, 50 Ark. 474; Texarkana v. Leach, 66 Ark. 42; Davies v. Epstein, 77 Ark. 227; Stoutemeyer v. Sharp, 89 Ark. 177; Draper v. Mackey, 35 Ark. 497.

The decree of the court below is therefore affirmed.