It will be observed that the section just cited provides that pending actions shall proceed in all respects as if the statutory provision under which the suit was brought had not been repealed. We think under the section just quoted the special counsel appointed by the Attorney General, and the Attorney General himself, had a right to proceed with all cases pending in the courts at the time Act 96, Acts 1917, was passed. [5] Appellant insists that a ten per cent. penalty should be imposed under section 9, Act 197, Acts 1913, for failure to pay the inheritance tax within one year. It is provided by that section that a penalty of 10 per cent. shall be charged in case the taxes are not paid within one year. The section, however, provides that the penalty shall not be collected if the delay in payment is caused by necessary litigation or other unavoidable delay, provided that "litigation to defeat the payment of a tax shall not be considered necessary litigation." Appellees themselves made application for the purpose of ascertaining the amount of inheritance tax the estate should pay, in October after the death of the testator. The state also filed an application in December, after the death of the testator, to have the tax ascertained and charged, but it did not cite appellees into court. Later the state excepted to the orders of the court and appealed the case. There was no attempt on the part of appellees to evade the payment of the tax, and they promptly paid the amounts fixed by the court. This suit cannot be regarded as an adversary suit to collect an inheritance tax which appellees had refused to pay. As stated above, appellees filed a statement of all the facts with the court within the year, for the purpose of ascertaining what amount they should pay. We do not think it can be said that it was litigation instituted for the purpose of defeating the payment of any tax. For the error indicated, the judgment is reversed, and the cause remanded for further proceedings in accordance with law. (134 Ark. 76) PHOENIX COTTON OIL CO. v. PETTUS & BUFORD et al. (No. 318.) (Supreme Court of Arkansas. April 22, 1918.) 1. BAILMENT 2-FOR HIRE-CONTRACTSCONSTRUCTION. Where plaintiffs delivered cotton to be ginned and received a receipt reciting that on its return a bale of cotton would be delivered, but that cotton left was at owner's risk, the writing showed a contract of bailment for hire. 2. BAILMENT 31(1)-FOR HIRE - BURDENOF PROOF-Loss oF GOODS. A bailee for hire in exclusive possession of the property must explain the loss thereof before it devolves upon the bailor to show that it was lost through the bailee's negligence. Appeal from Circuit Court, St. Francis County; J. M. Jackson, Judge. Two actions by Pettus & Buford and another against the Phoenix Cotton Oil Company, and by the Fussell-Graham-Alderson Company against the same defendant, consolidated. Judgment for plaintiffs in each case, and defendant appeals. Affirmed. G. M. Gibson and H. L. Ponder, both of Walnut Ridge, for appellant. Mann, Bussey & Mann, of Forrest City, for appellees. HUMPHREYS, J. On October 2, 1916. Pettus & Buford and Sarah Hunt delivered a wagonload of seed cotton to the Phoenix Cotton Oil Company, at Widener, Ark., to beginned. Same was ginned and the bale weighed 389 pounds. The bale of cotton was left at the gin, and the Phoenix Cotton Oil Company issued them the following re ceipt: Bale No. 763. Gin weight, 389. Widener, Ark., Oct. 2, 1916. Bale Cotton Claim Ticket. On return of this ticket properly indorsed we will deliver one bale cotton ginned for P. & B. & S. Hunt. All cotton left at gin is at owner's risk of loss or damage by fire or otherwise. Phoenix Cotton Oil Co., On the 4th day of October, 1916, Elias Chandler procured a receipt for a bale of cotton weighing 530 pounds, which he had previously left at the gin. The receipt was in the same form as the one above mentioned. Each receipt was delivered to Pettus & Buford, who presented the receipts and demanded the cotton on the 4th day of October, 1916. The cotton could not be found, and for that reason was not delivered to them. A suit was instituted by E. À. Rolfe and R. L. Pettus, trustees, under the Will of Geo. B. Pettus, deceased, T. A. Bu ford and E. A. Rolfe, under the firm name of Pettus & Buford, Sarah Hunt, and Elias Chandler against the Phoenix Cotton Oil Company for the value of said cotton. On the 8th day of October, 1915, F. W. Derossitt delivered one load of seed cotton to the Phoenix Cotton Oil Company to be ginned, and on the 13th day of October thereafter delivered another load to it to be ginned. The cotton was baled and left at the gin. The first bale weighed 546 pounds, and the second bale 605 pounds. Separate receipts were issued, the first dated October 8, 1915, and the second dated October 13, 1915, to F. W. Derossitt. The receipts were in the same form as the receipt above set out. F. W. Derossitt sold the cotton and transferred the receipts to Fussell-Graham-Alderson Company. The receipts were presented to the Phoenix Cotton Oil Company by FussellGraham-Alderson Company, but the cotton could not be found and was not delivered For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes to it. Fussell-Graham-Alderson Company | Ark. 284, 57 S. W. 931, 82 Am. St. Rep. 293, and F. W. Derossitt then instituted suit as supporting its contention. That case against the Phoenix Cotton Oil Company for was referred to in Bertig v. Norman, supra, the value of the cotton, in the St. Francis in support of the general rule that: circuit court. The Phoenix Cotton Oil Com "A bailee is only liable for negligence; and such negligence must be proved by the party seeking to make him liable therefor." In that case, the sole issue presented by the pleadings and evidence was one of negligence. The issue of negligence was not presented by the pleadings and evidence in the instant case. This is a suit in assumpsit founded on the breach of a written contract of bailment where the bailee had ex pany answered in each case, denying that it received the cotton or that it issued the receipts therefor, and, in addition, alleged that they were ginners of cotton and not warehousemen, and that they did not insure the delivery of the cotton to any one, and that it was not responsible in any way for the cotton after it was ginned and rolled onto its yards. These suits were consolidated for purposes of trial, and were sub-clusive possession of the property. This mitted and tried by a jury upon the evidence and peremptory instruction of the court. The jury returned a verdict in favor of Pettus & Buford for $210.14 and for Fussell-Graham-Alderson Company in the sum of $167.60. Judgments were rendered accordingly, from which an appeal has been prosecuted to this court. [1] The written contract in this case established the the relationship of bailor and bailee for hire between the parties. Under the contract, appellant had the exclusive possession of the cotton. The appellee could not acquire possession thereof without presenting the receipt. The receipt was presented, and the cotton was not delivered because not found on the yard. The contract contained a clause to the effect that the cotton was held by appellant at the owner's risk of loss or damage by fire or otherwise. The evidence does not show what became of the cotton. Appellant insists that it de volved upon the owners to show that the property was lost or destroyed through its negligence before they could recover the value of the cotton. The appellees insist that the burden rested upon appellant to explain what became of the cotton which it received, before they can be called upon to prove that it was lost or destroyed through some act of negligence on the part of appellant. [2] This court is committed to the rule that a bailee for hire in exclusive possession of the property must explain the loss thereof before it devolves upon the bailor to show that it was lost through the bailee's negligence. In adopting the rule, this court said: "It is a rule which is founded upon necessity, and grows out of the fact that the bailee, having exclusive possession of the property, has also the exclusive means of showing what became of it. * Having peculiar, if not the exclusive means of knowledge of the facts growing out of his exclusive possession and custody of the property, [he] is best able to prove them." Bertig v. Norman, 101 Ark. 75, 141 S. W. 201, Ann. Cas. 1913D, 943. * * See, also, Prince v. Alabama State Fair, 106 Ala. 340, 17 South. 449, 28 L. R. A. 716; Chaflin v. Myer, 75 N. Y. 260, 31 Am. Rep. 467. suit is controlled by the rule announced in the case of Bertig v. Norman, supra, to the effect that a bailee for hire, having exclusive possession of the property, must explain its loss before the bailor is required to prove the loss occurred through the negligence of the bailee. No error appearing in the record, the judgment is affirmed. (134 Ark. 10) BURRUS et al. v. BOARD OF SEWER IM- Kirby's Dig. § 5684, requires an ordinance levying assessments in a sewer improvement district to recite the estimated cost of the improvement. Sections 5471 and 5473 provide for recording of ordinances and their authentication. Held, in suit by property owners to restrain collection of sewer improvement district assessments, that the record of an ordinance, correctly reciting the estimated cost, was at least presumptively correct, being signed by the proper officers, although an erasure and correction had been made therein. 2. MUNICIPAL CORPORATIONS 538-CORPO RATIONS-PUBLIC IMPROVEMENTS-STATUTE. Where an action was not commenced within 30 days after publication of notice of the findings of the city council on the question of a majority of property owners having signed the petition for a sewer improvement ordinance, as required by Acts 1913, p. 527, it was too late to raise that question. 3. MUNICIPAL CORPORATIONS 538-LOCAL IMPROVEMENTS-REVIEW BY COURTS. In action by property owners to restrain the board of improvement of a sewer improvement district from collecting assessments levied on their property, the chancery court correctly refused to cancel the assessments upon complainants' lots as not being benefited, it not affirmatively appearing that no possible benefit could accrue from the improvement. Appeal from Pulaski Chancery Court; Jno. E. Martineau, Chancellor. Suit by H. D. Burrus and others against the Board of Sewer Improvement District No. 1. Judgment in part for complainants, and in part for defendant, and complainants appeal. Affirmed. Hal L. Norwood and Ratcliffe & Ratcliffe, Appellant relies upon James v. Orrell, 68 all of Little Rock, for appellants. Rose, NO. 1 Hemingway, Cantrell, Loughborough & Miles, that an error was made in recording the of Little Rock, for appellee. McCULLOCH, C. J. An improvement district designated as sewer improvement district No. 1 of Argenta was organized in that city (now North Little Rock) for the purpose of constructing a system of sewers in the territory described. The district covers a large area, perhaps the greater portion of that city. The ordinance levying the assessments on the property in the district was passed by the city council on September 17, 1914. There was publication of the ordinance in a newspaper, as required by statute (Kirby's Digest, § 5685), the next day after its passage, and a republication of the ordinance on October 9, 1914. same upon the journal, and also in the first publication, but that when the ordinance was presented to the mayor for his signature he discovered the error and directed the city clerk to correct the journal entries so as to show the correct recital of $390,000 estimated cost and to republish the ordinance, which was done. The statute prescribes the form of an ordinance of this particular nature to contain a recital of the estimated cost of the improvement. Kirby's Digest, § 5684. It is unnecessary to decide at this time whether or not the statute is mandatory with respect to this recital, or that a mistake in the recital would invalidate the ordinance. The statute provides that ordinances and bylaws enacted by city council shall "be reAppellants are the owners of lots within corded in a book kept for that purpose, and the boundaries of said district, and they in- be authenticated by the signature of the stituted this action in the chancery court of presiding officer of the council and the Pulaski county to restrain the board of im- clerk," and that printed copies of such ordiprovement of the district from collecting or nances published under its authority, and attempting to collect assessments levied on certified transcripts thereof shall be receivtheir property. The suit was commenced ed in evidence. Kirby's Digest, §§. 5471, 5473. more than a year after the last publication The record of the ordinance is, therefore, of the ordinance. In support of the attack presumptively correct at least, and the eviupon the validity of the assessments appel-dence warrants the findings that the erasure lants alleged in their complaint that the petition for the improvement was not signed by a majority in value of the property owners in the district, that there was an error in the record of the ordinance as it now appears on the journals of the city council concerning the recitals of the estimated cost of the improvement; and that the lots owned by appellants are situated so far away from any of the sewer lines that no possible benefit can accrue to the property from the construction of the improvement. On the final hearing of the cause the chancellor sustained the complaint as to some of the lots owned by appellants upon proof showing that no benefit, could possibly accrue to that property, but dismissed the complaint as to the other lots described. [1] The facts concerning the passage and publication of the ordinance are as follows: The ordinance as at first recorded on the journals by the city clerk, and as first published the next day, recited the estimated cost of the improvement to be $350,000. The second newspaper publication recited the estimated cost to be $390,000, and the entries on the journals as they now appear recite and correction in the record was made at the suggestion of the mayor, for the record was signed, and republication of the ordinance within the time specified by statute was sufficient to correct the error in the former publication. [2] The action was not commenced within 30 days after publication of notice of the findings of the city council on the question of a majority having signed the petition as provided by statute, and it was therefore too late to raise that question. Acts 1913, p. 527; Waters v. Whitcomb, 110 Ark. 511, 162 S. W. 61. [3] The last question for determination is whether or not the decision of the chancery court was correct in refusing to cancel the assessments upon appellant's lots. The city of North Little Rock, formerly Argentå, covers a territory running north from the bank of the Arkansas river, and is alluvial land with the highest point along the bank of the river and sloping back from that point, as is usual in that character of formation. The principal business portion of the city is on the south side of it near the river, and has been heretofore sewered. The present disthe same amount of estimated cost. The journals of the city council, where the ordi- trict begins farther north, and extends out nance is recorded, shows an erasure and a nearly to the northern limits of the city. substitution of the figures $390,000 instead The evidence shows that the only practical of $350,000 as estimated costs. The jour- means of sewering a large area back from nals, however, are properly signed by the the river is to embrace the whole territory in mayor and the city clerk. Oral testimony one district, so that a pumping station can adduced at the hearing before the chancellor be maintained on the river bank in times of tended to show that the original ordinance passed by the city council recited the estimated costs to be $390,000, and that it was passed by the city council in that form, but high water when the waters in the river rise above the mouth of the sewer in order to give sufficient fall of the sewer mains to carry off the sewage from property distant. from the river bank. The mouth of the sewer is necessarily placed below high-water mark, and that necessitates the maintenance of a pumping station to pump out the sewers in time of high water. Appellant's lots, involved in this controversy as presented here, lie on an average of a mile north from the river, and from 250 feet, to 1,000 feet from the nearest sewer line as now constructed. The testimony shows also that the cost of constructing a sewer district embracing these lots so as to run sewers to the river without including the remainder of the property in this district would be prohibitive, and that the only method of constructing sewers for these lots, unless they be connected with this district, would be to use septic tanks. The testimony shows the cost of running lines of sewers from these lots to the sewers as now constructed in this district, and the testimony does not show that the cost is prohibi tive. The case was submitted on the testimony of the engineer of the district so far as relates to the issues concerning the benefits to the property of appellants, and that testimony fails to show that no benefit is derived from the construction of the improvement. On the contrary, the fair inference from the testimony of that witness is that the cost of running sewers from those lots to the sewer now established would not be prohibitive, and that benefits will accrue not only from the actual use of the sewers constructed in the district, but other benefits from the construction of sewers in that territory. The facts are not unlike those involved in the case of Board of Improvement v. Pollard, 98 Ark. 543, 136 S. W. 957, where we held that under a statute like ours, which gives the property owner the right of appeal from the decision of the board of assessors, the courts will not disturb the findings of such board, unless it affirmatively appears that no possible benefit can accrue from the improvement. The decision on that point was couched in the following lan guage: "It has been repeatedly held that these statutes provide a reasonable opportunity for the property owner to be heard, and that mere mistakes of judgment relative to the assessment of the benefits upon the land in an improvement district cannot be reviewed by the courts. If any benefit accrues to the land by reason of the improvement, then the owner is precluded after the time given him by the statute from raising any objection thereto." In that case we reversed the decision of the chancellor upon testimony which was of much greater force in its tendency to show that there was very little, if any, benefit accruing to the property involved in the controversy. Applying the principles announced in that case to the facts of the present one, it is clear that the decision of the chancellor was correct. The decree is therefore affirmed. (134 Ark. 30) FAVER et al. v. WAYNE et al. (No. 308.) (Supreme Court of Arkansas. April 22, 1918.) 1. HIGHWAYS 113(2)-ROAD IMPROVEMENT DISTRICT-CURATIVE ACTS - AUTHORITY OF COMMISSIONERS — "LIABILITIES” — “LIMITATIONS." Where the organization of a road improvement district was invalid because of noncompliance with Alexander road law (Acts 1915, p. 1400), a curative act (Acts 1917, p. 599), validating the entire organization of the district and directing commissioners of the district to carry out the contracts for construction accordproviding in section 1 that district was establishing to the plans of the district then on file, and ed with all the powers granted and all the "liabilities," imposed by said act, rendered the acts of the commissioners legal, regardless of the fact that in the carrying out of such contracts they were obliged to incur costs for the improvement exceeding 30 per cent. of the assessed value to which their authority was limited by section 28 of the Road Law; the word "liabilities" not being synonymous with "limitations." [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Liability; Limitation.] 2. STATUTES 268-CONSTRUCTION-EFFECT. be harmonized, where it can be done without All the provisions of a curative statute will doing violence to the language. Appeal from Pulaski Chancery Court; Jno. E. Martineau, Chancellor. Action between E. M. Faver and others and J. R. Wayne and others. From the judgment E. M. Faver and others appeal. Affirmed. J. A. Comer and Cohn, Clayton & Cohn, all of Little Rock, for appellants. Rose, Hemingway, Cantrell, Loughborough & Miles and Grover T. Owens, all of Little Rock, for appellees. WOOD, J. Road improvement district No. 7 was organized under what is known as the "Alexander Road Law" (Act 338 of the Acts of 1915), before that law was construed by this court in Lamberson v. Collins, 123 Ark. 205, 185 S. W. 268. The district was invalid because of a failure to comply with the pro visions of the first section of the Alexander act as construed in Lamberson v. Collins, supra. In 1917 the Legislature passed the following act: "Act 115. "An act to cure all irregularities in the organization of road improvement district No. 7, of Pulaski county, and to establish the same as a road improvement district under the terms of Act 338 of the session of 1915. organization of road improvement district No. 7 "Section 1. All irregularities and errors in the of Pulaski county are hereby cured, and said district is hereby established as a road improvement district under the terms of the act of the General Assembly of the state of Arkansas of the year 1915, entitled, 'An act providing for the creation and establishment of road improvement districts for the purpose of building, constructing and maintaining the highways of the state of Arkansas,' approved March 30, 1915, being Act No. 338 of the session of that year, with all the powers granted and all the liabilities im- | the act, the command to the commissioners posed by the terms of said act. "Sec. 2. The appointment of J. R. Wayne, T. L. Hughes and W. M. Morris, as commissioners of said district, is hereby ratified, and they are hereby reappointed, and it is made their duty to construct, maintain and repair the roads contemplated in their revised plans as filed in the office of the county clerk of Pulaski county, which plans are hereby expressly approved; and all acts of the said commissioners heretofore performed by them, and all contracts made by them are hereby ratified and confirmed, and the said commissioners are directed to carry out said contracts. "Sec. 3. The assessment of benefits heretofore made by the assessors of said district is hereby declared to be just, equal and proportionate, and the same is in all things confirmed and declared to be the assessment of benefits for said district, until a reassessment shall be ordered according to law. The appointment of J. R. Alexander, Thomas Landrith and H. A. Wayne, as assessors of said district, is hereby ratified and confirmed. "Sec. 4. Said district shall consist of the following territory in Pulaski county, as laid off by the county court of said county, to wit [here follows the land embraced in the district described]. "Sec. 5. This act being for the immediate preservation of the public peace, health and safety, an emergency is hereby declared, and this act shall take effect and be in force from and after its passage. "Approved February 22, 1917." The purpose of the above act is expressed in its title, and is clearly shown in the first section. It was to cure all irregularities in the organization of Road Improvement District No. 7 and to establish the same just as though the Alexander law, as construed in Lamberson v. Collins, supra, had been complied with. The act creates and establishes a complete, improvement district under the Alexander law "with all the powers granted and all the liabilities imposed by the terms of said act." But the second section of the act, after reappointing the commissioners that had been named, "made it their duty to construct, maintain and repair the roads contemplated in their revised plans as filed in the office of the county clerk of Pulaski county," which plans were expressly approved and 'all the acts of the commissioners that had been previously performed and all the contracts that had been made by them were ratified and confirmed, and the commissioners were directed to carry out said contracts. By section 3 the assessment of benefits that had been made by the assessors was approved and declared to be the assessment of benefits for the district until a reassessment should be ordered according to law. By section 4 the land composing the district was described. So the act eliminated the defects which rendered the district invalid under the Alexander law, and ordered the commissioners to complete the improvement as contemplated under the revised plans. made for the construction of the improvetherein contained, to carry out the contracts ment according to the revised plans then on file, is imperative. By thus expressly approving the revised plans, on file in the office. of the county clerk, and requiring that the improvement be completed according to these plans, it must be conclusively presumed that the Legislature investigated these plans and ascertained the cost of the improvement under the contracts for the carrying out of the improvement according to the plans. The Legislature, therefore, knew that the cost of the improvement would exceed 30 per cent. of the assessed value of the property in the district, and must be held to have intended to validate the acts of the commissioners in entering into contracts for the completion of improvements and repairs which contemplated a cost in excess of the limitation as contained in section 28 of the Alexander law. The filing of revised plans and entering into contracts to construct an improvement according to these revised plans which would cost more than 30 per cent. of the assessed value of the property in the district would, under the Alexander law, have rendered the contracts invalid. But so long as the costs of the improvements did not exceed the benefits, it was within the province of the Legislature to leave the commissioners untrammeled by any other than this constitutional limitation. The Legislature could have dispensed with the 30 per cent. limitation as to the cost of the improvement in the first instance. It was entirely within its constitutional province to do so, and it has done so in the curative enactment under review. It is not alleged, and not pretended by the appellants, that the cost of the improvement according to the revised plans would exceed the benefits. Keeping in view this limitation, if the Legislature had seen proper in the first instance not to designate any per cent. of the assessed value as a limitation upon the cost of the improvement, it could have done so. In Green v. Abraham, 43 Ark. 421, we quoted the following from Judge Cooley, which expresses the law upon the subject: "The rule in regard to healing acts is this: If the thing omitted or failed to be done, and which constitutes the defect in the proceedings, is something which the Legislature might have dispensed with by a previous statute, it may do so by a subsequent one." This rule has been repeatedly followed since. Bell v. Phillips, 116 Ark. 177, 172 S. w. 864; Pelt v. Payne, 90 Ark. 603, 30 S. W. 426, 134 Am. St. Rep 45; Stuttgart v. John, 85 Ark. 525;1 Lanzer v. Butt, 84 Ark. 339, 105 S. W. 595; Sudberry v. Graves, 83 Ark. 348, 103 S. W. 728. [2] Learned counsel for the appellees in [1] As we construe the second section of their reply brief quote the language of the 1 109 S. W. 541. |