« السابقةمتابعة »
ferent and far more drastic penalty Would be in its nature ex post facto. As first above stated, the statute (section 2047) authorizes an affirmance of the judgment for failure to file the transcript, and Sections 2048, 2049 authorize the court to pass rules prescribing penalties enforcing the service and filing of abstracts, and the court has prescribed that the penalty shall be a dismissal of the appeal. It seems to me that that is all the penalty we can inflict.  The Suggestion has been made that in order that the respondent, plaintiff, may have a right of action on the appeal bond, there must be an affirmance of the judgment, for, respondent SayS, the dismissal of the appeal Will not give that right; and he cites a decision of the Springfield Court of Appeals in support of that view (Hill V. Keller, 157 Mo. App. 710, 139 S. W. 523). That interpretation of the statute does not affect the question now before uS. The statute (section 2042, R. S. 1909) in relation to appeal bonds prescribes that the bond Shall be in double the amount Of the judgment, and Shall be conditioned— “that the appellant will prosecute his appeal with due diligence to a decision in the appellate court and shall perform such judgment as shall be given by such court, or such as the appellate court may direct the circuit court to give, and if the judgment of such court or any part thereof, be affirmed, that he will comply with and perform the same, so far as it may be affirmed, and will pay all damages and costs which may be awarded against the appellant by any appellate court.” Judge Nixon, who wrote the opinion in the case referred to, takes the View that a dismissal of an appeal is “a decision,” and that therefore the condition of the bond has been fulfilled and no liability is incurred. If it be conceded that a judgment of dismissal is a decision of the case, within the meaning Of the bond, yet it seems to me that the learned judge fails to give effect to the words immediately preceding the word “deciSion.” The Whole phrase should be considered, viz., “that the appellant will prosecute his appeal with due diligence to a decision.” NOW if an appellant fails altogether to proSecute his appeal, by either Willfully or negligently defaulting in the steps necessary to take care of it, to the end that it may be heard, Or by affirmatively asking that it be dismissed, he certainly is violating the condition to prosecute with diligence. He is taking exactly the Opposite to the course he Obligated himself to take. He who dallies Or lags With an appeal, or who neglects or willfully abandons it, is not prosecuting it. To prosecute an appeal means to keep step, as Well as reasonably may be, the circumstances considered, with the legal requirements to bring it to a final disposition. It seems to me absurd to allow that One who neglects or abandons his appeal may say
that he diligently prosecuted it. That conStruction WOuld make the Statute furnish Safe means for the loser to trifle with the process of the court and to practice gross imposition on the prevailing party. For he may appeal and stay execution, then delay until thrown out of court, or maybe, go out On his OWn motion, and then be heard to say to a helpless respondent that he had complied with his bond. It is held by the weight of authority that When the appeal is complete and the appellate court has jurisdiction, the dismissal of the appeal, an action which leaves Standing in full force the judgment appealed from, in every respect operates as, and practically is, an affirmance of the judgment, and would give an action on the bond under the foregoing condition for affirmance. Stearns, Surety Ship, 364; Baylies on Sureties and Guarantors, 174; Chase V. Beraud, 29 Cal. 138; Coon v. McCormick, 69 Iowa, 539, 29 N. W. 455; Dolan v. Bartruff, 145 N. W. 273 (Supreme Court Of IOWa, 1914); Blaer V. Reading, 103 Ill. 375; McConnel v. Swailes, 2 Scam. (Ill.) 572; Sutherland v. Phelps, 22 Ill. 91; Harrison V. Bank, 3 J. J. Marsh. (Ky.) 375; Gregory v. Obrian, 13 N. J. Law, 11, 13; Teel v. Tice, 14 N. J. Law, 444. But whether authorizing an action on that part of the condition is of no consequence in this Case, Since the literal terms of the bond as to a prosecution With diligence, have been Violated.  As influencing the view that a dismissal of an appeal for failure to prosecute in the manner required by law will not give an action on the appeal bond, it is said that the Statute permits One to Sue Out a Writ of errOr at any time within a year of the rendition of the judgment, and that the writ may be had after the dismissal of an appeal. And it is said that to allow the respondent to recover on his appeal bond would produce, in many instances, the anomaly of one having paid a judgment which is afterwards reVersed On Writ of error. But that Would be no more than frequently happens; thus, if One appeals Or Sues Out a Writ of error and does not give bond, there is no supersedeas, and execution may immediately issue and COmpel him to pay a judgment which may afterwards be reversed When the case is heard in the appellate court. But in each of these instances the Successful party in the appellate COurt may recover back the money he has been compelled to pay. So though an appellant Who dismisses his appeal (or his Sureties) is compelled to pay the judgment, and though such judgment is afterwards reVersed on a Writ of error, he is in no worse Situation than he who appeals, or who sues Out a Writ of error, without bond.
The motion to affirm should be denied.
NALL v. KELLEY et al. (No. 155.) (Supreme Court of Arkansas. Oct. 11, 1915.)
1. HIGHWAYS (3–590 – RoAD IMPROVEMENT DISTRICTS-CREATION. A special statute, creating a road improvement district and authorizing the board of commissioners to improve a road running across the county wherein it was located and passing through an incorporated town therein, is not void because it includes property in such town without obtaining the consent of the majority in value of the property owners, since the constitutional provision relating to improvement districts entirely inside cities and towns has no application to districts covering territory not wholly within the limits of a municipality. [Ed. Note.—For other cases, see Highways, Cent. Dig. §§ 301, 302; Dec. Dig. 3:90.]
2. HIGHWAYS @->90—ROAD DISTRICTS-INVASION OF MUNICIPAL AUTHORITY. A special statute, creating a road improvement district and authorizing the board of commissioners to improve a road running across a county and pass through an incorporated town therein, was not invalid as invading the jurisdiction of the town by authorizing the improvement of a highway constituting one of the streets therein, since the purpose of the statute was merely to provide for improving the street and not to take away from the municipality the control thereof. [Ed. Note.—For other cases, see Highways, Cent. Dig. §§ 301, 302; Dec. Dig. Q:90.]
3. HIGHWAYS @->90 – HIGHWAY DISTRICTSDESCRIPTION OF RIGHT. A special statute, creating a road improvement district and describing the road by name, the route along which it was to run, and providing that improvements were to be made on the road “as now laid out, or substantially on such line, and any of the improvements and any change in the line of said road to be approved by the county board,” is not invalid as not sufficiently describing the route. [Ed. Note.—For other cases, see Highways, Cent. Dig. §§ 301, 302; Dec. Dig. Q:90.]
4. HIGHWAYS (3–995—HIGHWAY DISTRICTSDELEGATION OF LEGISLATIVE AUTHORITY. The Legislature has power to confer upon a board of improvement of a road improvement district plenary power in the matter of selecting the materials as well as forming the plans for the improvement. [Ed. Note.—For other cases, see Highways, Cent. Dig. §§ 309-312; Dec. Dig. Q:95.]
5. CONSTITUTIONAL LAW 3:63 – HIGHWAY DISTRICTs — DELEGATION OF LEGISLATIVE AUTHORITY. A special statute, creating a road improvement district and providing that after the board of improvements shall have formed plans for the improvement and ascertained the costs thereof, “but if they deem it expedient to make said improvements they shall appoint three electors of the county who shall constitute a board for the assessment of the benefits to be received,” is not invalid as constituting a delegation of legislative authority to the board of improvement; the Legislature having power to make a law to delegate the power to determine some facts upon which the law makes or intends to make its own action depend. [Ed. Note.—For other cases, see Constitution#"w. Cent. Dig. §§ 108–114; Dec. Dig. Q:
to improve a certain public road known as the Pine Bluff, Sheridan, and Hot Springs Road. That road runs clear across the county and passes through the incorporated town of Sheridan. The Statute creates a complete Scheme for the Organization of the district, the formation of plans for the improvement, the assessment of benefits, and for the conStruction of the improvement and enforcement of payment of the improvement tax. It appears from the allegations of the complaint in this action that the board of improvement has effected an Organization in accordance with the terms Of the Statute and are attempting to carry out the provisions of the statute. This is an action instituted by a
property owner in the district to enjoin the
board from proceeding with the construction of the improvement, the levying of assesswas heard upon an agreed statement of facts and the depositions Of Witnesses, and the chancellor, on a hearing of the cause, dismissed the complaint for Want Of equity. The complaint in the case seems to have been framed SO as to constitute an assault upon the validity of the whole statute, section by Section, and all of the proceedings of the board; but we must treat as abandoned all Of the assaults except the Ones that are made in the briefs of COunsel filed in this COurt.  In the first place, it is contended that the act is void because it includes property in an incorporated town Without Obtaining the consent of the majority in Value Of the property owners. This contention may be disposed of merely by citing several of Our decisions where we held that the provision Of the Constitution with reference to improvement districts entirely inside of cities and towns has no application to districts COVering territory not wholly within the limits of a municipality. Butler v. Board of Directors of Fourche Drainage District, 99 Ark. 100, 137 S. W. 251; Alexander v. Board of Directors of Crawford County Levee District, 97 Ark. 322, 134 S. W. 618; COX V. Road Improvement District, 176 S. W. 676.  It is also contended, in this connection, that the statute invades the jurisdiction Of the municipality by authorizing the improvement of a highway which constitutes one of the Streets therein. In the CaSe Of COX V. Road Improvement District, supra, we expressly pretermitted any discussion of that question for the reason that none of the improvements involved in that case Were to be made within the corporate limits of the town of Keo, though the property in the town was to be assessed. It is very plain, however, that the inclusion of a street is not an invasion of the authority and jurisdiction of a municipality for the reason that the purpose of this statute is merely to provide for improving the street and not to take away from the municipality the control thereof. This question is ruled by the case of Pulaski Gas Light Co. v. Remmel, 97 Ark. 318, 133 S. W. 1117, where We decided that an urban improvement district formed under the general statutes of the state acquired no control over streets except for the purpose of making the improvement. The principle is the same Whether the improvement district has been Created in a city or town under the general statutes Or whether by a Special statute Creating a road improvement district embracing property both in and outside of a city or town. It is clearly within the power of the Legislature to authorize the property owners to improve a Street or highway, either inside or Outside of a municipality, Without inVading the jurisdiction of either the municipality or the county court. We have held that the Legislature may create improvement districts authorizing the improvement of
as delegating legislative authority is whether tilents, and the issuance of bonds. The cause
C=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
does not invade the jurisdiction of the county Court. Road Improvement District "V. Glover, 89 Ark. 513, 117 S. W. 544. Our conclusion therefore is that there is no basis for the Contention that the act is Void On either Of the grounds just stated. [3,4] Section 2 of the act describes the road by name as “the Pine Bluff, Sheridan, and Hot Springs Road,” and also specifically describes the route along which the road runs. Then follows the provision that the improvements “are to be made on the road as now laid out by the county court in Grant County, Or Substantially On this line, the nature Of the improvements and any change in the line of said road to be approved by the county court of Grant county, Ark.” That Section also provides that the improvement “is to be constructed Of macadam or of Such Other material as the Commissioners may deem best.” There is no basis for the contention that the description of the route is too uncertain, for the act does not authorize any Substantial deviation from the particular line prescribed. Whether a Substantial deviation under those provisions would invalidate the proceedings, We are not called on to decide, for it is plain that only slight deviations are authorized, and those are to be approved by the county court. Nor is it necessary for us to determine how far the board Of commisSioners may deviate from the specification aS to the material to be used and how far they could go in adopting Other material not of the same general character as that which is used in Constructing a macadam road. There appears to be no valid reason why the Legislature cannot confer upon a board Of improvement plenary power in the matter of selecting the materials as well as forming the plans for the improvement. What we Said in the recent Case Of COX V. Road Improvement District, supra, about the necessity for certainty in the specification of the character of the improvement, does not apply, for the reason that there is no requirement in this statute for a petition of landowners, and therefore a legislative specification of the character of improvement is not necessary. Nor does the decision in Swepston v. Avery, 177 S. W. 424, have any bearing here, for the reason that the statute in that case provided for an arbitrary assessment of benefits in proportion to the value of the land, whereas in the present case the governing Statute authorizes an assessment of benefits based upon the character of the improvement after it has been determined upon.  Section 8 of this statute provides that, after the board shall have formed plans for the improvement and ascertained the COSt thereof, “if they deem it expedient to make Said improvement, they shall appoint three electors of the county, who shall constitute a board for the assessments of the benefits to be received,” etc. This provision is not found court for review, and presents a new question. It is contended that the provision constitutes a delegation of legislative authority to the board of improvement. After careful consideration of the question, we are, however, of the opinion that the provision does not constitute a delegation of legislative authority, but that it comes within the rule announced by this court that, while the Legislature cannot delegate power to make laws, “it can make a law to delegate the power to determine some facts or state of things upon Which the law makes Or intends to make its OWn action depend.” Boyd V. Bryant, 35 Ark. 69, 37 Am. Rep. 6. This statute, it will be observed, is completely put in force by the Legislature, and nothing is left to the board So far as completing the enactment. It Only delegates to the board the authority of determining the extent to which the proceedings may go towards the construction of the improvement. The improvement district itself is created by the statute, and the board Of improvement is named for the purpose Of Carrying out the provisions of the statute. The board is clothed with complete authority, not only to perform the preliminary acts, but to construct the improvement and assess benefits and collect taxes, etc. There is a mandatory direction to the board to organize itself by the election of Officers, and to employ engineers and form plans for the improvement. At this point the board is authorized, before incurring further expense, to determine whether or not it will be expedient to make the improvements; and this is not a delegation of legislative authority, but power to ascertain the factS Whether Or not the plan for the improvement is feasible and shall be consummated. Of course, there is a further limitation upon the power of the board to proceed, in that the benefits must be ascertained to be equal to the COSt Of the improvement. But it was the purpose of the lawmakers to provide for an ascertainment by the board in advance of the assessment of benefits whether or not the plan to construct the improvement is feasible, Or, to use the exact language of the statute, to determine Whether or not it is “expedient to make said improvement.”  Counsel for defendants have cited many cases On their brief Which Sustain the View that this is not a delegation of legislative authority. The true test, approved by many courts in accord With the rule announced by this court in Boyd v. Bryant, supra, is stated by the Supreme Court of Ohio in Railroad Company v. Commissioners, 1 Ohio St. 77, as follows: “The true distinction * * * is between the delegation of power to make the law, which necessarily involves the discretion, as to what it shall be, and conferring an authority, or discretion as to its execution, to be exercised under and in pursuance of the law. The first can
not be done; to the latter no valid objection can be made.”
The drainage laws of this state constitute the county court as the tribunal for determining the expediency of such an improvement in a given locality, and We can See no reason, from the standpoint of constitutionality, why the Legislature cannot create, even in a Special statute, a tribunal, consisting of the members of the board of improvement, to determine the feasibility of the improvement to be undertaken before unnecesSary expense is incurred. It is not essential that the lawmakers themselves shall first determine the feasibility of the improvement. The passage of the statute presupposes a legislative determination as to the necessity for the improvement, or at least as to its desirability; but there is no reason why the lawmakers should not delegate to a special tribunal the further authority of determining its expediency before incurring considerable expense towards its construction. The statute therefore is not open to the objection that it constitutes a delegation of legislative authority.
 There is also a contention that the proceeding is Void because One of the CommisSioners named is not the OWner of property except inside the town of Sheridan. There is no force in that objection, even if the act required the commissioners to be landOWners; for, as we have already said, it was within the power of the Legislature to include the town Within the limits of the district, and if a commissioner owned land inside of the district he was qualified. The statute, it is true, provides that commissioners who are to Succeed those named in the statute at the expiration of their terms shall be property owners Within the district; but the statute names certain individuals Who are to constitute the first board of improvement, and there is no specification as to their qualifications. Therefore the question cannot arise Whether or not they are property owners.
 Nor is there anything in the contention that the act is void because it fails to provide for the commissioners to take an oath of office. The statute is silent on that subject, though it contains an express proVision that the commissioners “shall Organize by electing one of its members as president and by electing a secretary and treasurer.” The members of the board are not officers within the meaning of the provision of the Constitution (article 19, § 20) requiring all officers, both civil and military, to take and subscribe to a certain oath before entering upon the discharge of the duties of their office; but, if it were to be held that that provision did apply, there is nothing in this statute in conflict with it, even though it contains no requirement for taking the oath. If the commissioners were public officers, it would be their duty to take the oath in conformity With the Constitution, Without any express provision of the statute to that effect. Finally it is urged, with considerable earnestness, that the evidence ShoWS that the aSSessment Of benefits is invalid On account Of the lack of uniformity, and for other reasons. The case was, as before stated, tried upon an agreed Statement of facts and the depositions of Witnesses. The depositions of two of the assessors were taken, and it appears that they exercised their judgment fairly and that the state of the proof is such that We Cannot Say that the aSSessments are unreasonable or that they lack uniformity. It is COntended further that, acCOrding to the Statement made by one of the assessors, they made their assessment without any reference to the COSt Of the improVement and Without having the plans before them. It appears, however, from a preponderance of the testimony in the case, that the plans for the improvement had been formed before the assessment was made, and that those plans were laid before and considered by the board in making the assessment. In other words, the preponderance of the testimony is against the contention of appellants on the issue made concerning the Validity Of the assessment. This disposes Of all the attacks made here On the validity of the statute, and of the proceedings, and it follows from What We have Said that the decree of the chancellor dismissing the complaint for Want of equity Should be affirmed. It is SO Ordered.
McGILL et al. v. ADAMS. (No. 153.) (Supreme Court of Arkansas. Oct. 11, 1915.)
1. TAXATION 3-9805–TAX SALES—CANCELLATION OF IDEED. Where the purchaser of wild and unimproved lands sold to the state for unpaid taxes, paid taxes thereon for 14 years after his purchase, the former owner's action to cancel the deed is barred by the statute of limitations requiring actions in such cases to be brought within 7 yearS. [Ed. Note.—For other cases, see Taxation, Cent. Dig. §§ 1593–1597; Dec. Dig. <>805.]
2. TAXATION 32805—TAx SALES-CANCELLATION OF DEED-LACHES. Where plaintiffs in an action to quiet their title in property sold to the state for unpaid taxes, and by the State to defendant, are under the disabiltiy of coverture, and therefore not barred by the statute of limitations, nevertheless failure to enforce their rights or to pay taxes for 45 years, 14 of which were after defendant's acquisition of title from the state, during which time the land increased markedly in value, bars their action on the ground of laches. [Ed. Note:—For other cases, see Taxation, Cent. Dig. §§ 1593–1597; Dec. Dig. 6-805.]
Appeal from Clark Chancery Court; Jas. D. Shaver, Chancellor.
Action by Josephine McGill and another against W. P. Adams. From judgment for defendant, plaintiffs appeal. Affirmed.
A. N. Meek, of Camden, and E. L. Carter, Of Little Rock, for appellants. Hardage & Wilson, of Arkadelphia, for appellee.
McCULLOCH, C. J. Plaintiffs inherited the lands in controversy, Which are Still Wild and unimproved, and which were forfeited to the state for taxes in the year 1869. Defendant’s grantor purchased the lands from the state and received a deed therefor dated January 25, 1900, and defendant and his grantor have paid taxes continuously on the lands up to the present time. This is an action instituted by the plaintiffs in the chancery court to cancel the tax Sale and quiet their title, On the ground that Said Sale Was void, for the reason that the statutory requirements concerning tax Sales were not complied With. It is conceded that the tax Sale Was void, but the action is defended on the ground that One of the plaintiffs is barred by the statute of limitations, and that the Other tWO, who are now and have been married women since defendant’s grantor purchased the land from the State, are barred by laches. The Chancellor Sustained this defense, and plaintiffs have appealed.
[1, 2] The evidence shows that the defendant and his grantor have paid taxes continuously since the latter purchased the land from the state in the year 1900, and that Since that time the lands have become greatly enhanced in Value. There is an agreed statement in the record to the effect that at the time the defendant's grantor purchased the lands they were Worth from $1.25 to $1.50 per acre, and that at the commencement of the suit the lands were worth from $10 to $15 per acre. The One plaintiff Who is not laboring under any disability is clearly barred by the statute of limitation, the lands being Wild and unimproved, and defendant and his grantOr having paid taxes thereOn under color of title for more than 7 years prior to , the commencement Of the action. The Other tWO plaintiffs are under the disability of coveture, and are not barred by the statute of limitation, but they are barred by their OWn laches. The factS Of the case bring it Within the rule announced by this Court in a long line of cases, beginning with Clay v. Bilby, 72 Ark. 101, 78 S. W. 749, 1 Ann. Cas. 917, and coming down to the comparatively recent case of Burbridge v. WilSon, 99 Ark. 455, 138 S. W. 880. The same rule is announced in Still later cases, Where it was found that the facts did not bring them Within the application of the rule. Herget v. McLeod, 102 Ark. 59, 143 S. W. 103; Bradley Lumber Co. v. Langford, 109 Ark. 594, 160 S. W. 866.
We have uniformly held that the failure to pay taxes On unimproved lands for a long period of time, together with great enhancement in values, constitute an abandonment, and that an action Seeking equitable relief against One who has paid taxes under those