Morgan Engineering Company v. Cache River Drainage District

• Decision Date: 06 March 1916
• Docket Number: 224
• Citation: 184 S.W. 57,122 Ark. 491
• Parties: MORGAN ENGINEERING COMPANY v. CACHE RIVER DRAINAGE DISTRICT
• Court: Arkansas Supreme Court

184 S.W. 57

122 Ark. 491

MORGAN ENGINEERING COMPANY v. CACHE RIVER DRAINAGE DISTRICT

No. 224

Supreme Court of Arkansas

March 6, 1916

Appeal from Craighead Circuit Court, Jonesboro District; J. F Gautney, Judge; affirmed.

STATEMENT BY THE COURT.

The Legislature of 1911 passed an act creating the Cache River Drainage District (Act No. 457, Special Acts of 1911, page 1245). Section 1 of which provides: "A drainage and levee district is hereby created and established in the counties of Craighead, Jackson and Lawrence to consist of and contain all that territory in said counties including and bounded by the following lines:

"Commencing at the north boundary line of Craighead County at a point where section line between sections 3 and 4 intersects the said boundary lines; thence south on said section line between sections 3, 4 and 9, and 10, 16 and 15, 21 and 22, 28 and 27, 33 and 34, township 15 north, range 3 east, to where it intersects the south boundary line; thence west on said township line to the northeast corner of section 1, township 14 north, range 2 east; thence south on range line to south line of section 18, township 14 north, range 3 east; thence east one mile to the southeast corner of section 18; thence south on section line between sections 19 and 20, 29 and 30, 31 and 32, to the south township line; thence west on said township line to St. Louis Southwestern Railroad Company thence in a southwesterly direction along said railroad to the southeast corner of section 12, township 13 north, range 2 east; thence west on south section line of said section 12 and on section lines between sections 11 and 14, 10 and 15, 9 and 16, 8 and 17 and 18 to where it intersects range line between ranges 1 and 2; thence south on said range line to south boundary line of Craighead County; thence west on south boundary line of Craighead County to the southwest corner of said county; thence west on the south boundary line of township 13 to range line between ranges 2 and 3, Jackson County; thence north on said range line intersecting the boundary line between Lawrence and Jackson county, to the St Louis, Iron Mountain & Southern Railway Company; thence in a northeasterly direction with the railroad to where it intersects township line between townships 15 and 16 north range 1 east, in Lawrence County; thence east on said township line to the northwest corner of Craighead County; thence east on the north boundary line of said Craighead County to the point of beginning."

The board of directors of the district entered into a contract with the appellant to do the engineering work for the district. The appellant entered upon the work under this employment and continued as the engineer of the district until the General Assembly of 1913 repealed the act of 1911, referred to above (see Acts 1913, page 512). The appellant held warrants for its services, issued by the board of directors on the treasurer of the district for the sum of $ 15,652, which it presented to the county court of Craighead County, pursuant to the provisions made by the repealing act of 1913. It set up its contract, alleged that it performed the work, which had been liquidated by the issuance to it of the warrants covering the sum above claimed, and asked that these warrants be allowed and paid.

Certain land owners intervened and contested appellant's claim on the ground that the amount claimed under the contract was excessive and that under the repealing act appellant could only recover upon quantum meruit. The county court reduced appellant's claim and it appealed to the circuit court. The case was there tried before a jury, and from a judgment rendered in the circuit court both parties appealed to this court. So this is the second appeal. Morgan Engineering Co. v. Cache River Drainage District, 172 S.W. 1020, 115 Ark. 437.

On the former appeal we stated the issues between the respective parties as follows:

"It is the contention of the drainage district that under the terms of the repealing act the engineering company could recover only such compensation as the jury might find reasonable; on the other hand, the engineering company contends that its compensation should be measured by the terms of the contract, and that having done all the preliminary work required under the act it was entitled to recover from the drainage district 2 per cent. of the estimated cost of construction of the whole work."

We held on the former appeal that the compensation of the appellant should be measured by the terms of the contract, and not upon quantum meruit. The court reversed and remanded the cause for errors in the trial court's instructions which resulted in an erroneous verdict. In the opinion we prescribed the correct rule for ascertaining the amount due appellant and remanded the cause for "further proceedings in accordance with" the opinion.

On retrial the interveners, by leave of the court, filed additional exceptions to the claim of appellant, setting up that the original act creating the drainage district was void for uncertainty, in that the metes and bounds set forth in the act did not describe any particular territory; and the interveners alleged that the board of directors therefore had no authority to enter into a contract with the engineering company, and that consequently there was no lien existing on the lands of the interveners, and that the Legislature had no power to fix a lien on the same.

Substantially the same testimony was adduced at the last trial as in the first, and in addition Morgan, an expert engineer, testified in part as follows:

"The description of the boundaries of the Cache River Drainage District as given in Act No. 457 of the Special Acts of 1911, contains a typographical error in this way: The act states, 'Thence west on the south boundary line of Craighead County to the southwest corner of said county; thence west on the south boundary line of township 13 to range line between ranges 2 and 3, Jackson County.' Now that figure '3'--if the figure '3' were read a figure '1' the entire description would be made intelligible, because the act reads further: 'Thence north on said range line intersecting the boundary line between Lawrence and Jackson Counties,' which call would be properly carried out by changing the figure "3" to a figure '1,' but it is not properly carried out by leaving the figure '3,' because in the latter case the line is carried to a point that does not touch Lawrence County." He was asked, "What county would it touch," and answered, "Independence County."

The appellant presented the following requests for declarations of law:

"1st. That all matters and questions which were made or might have been made on the former trial can not be properly made here, but that this proceeding must relate solely to matters left open by the opinion of the Supreme Court.

"2nd. That the act of 1913, repealing the act creating the Cache River Drainage District is more than a curative act, and is in fact a legislative levy against the lands included in the assessment, and that such a levy is valid regardless of any imperfection or infirmity in the description in the original act.

The court refused these requests, and, over the objection of appellant, made, among others, the following findings of fact:

"3rd. The act of 1911 is void for uncertainty.

"4th. There is nothing in the repealing act which in any manner attempts to cure any defect in the original act," and declared the law to be that the act creating the Cache River Drainage District "is void for failure to define the boundaries of the district with certainty, and that the act of 1913, repealing the above mentioned act, does not cure the uncertainty of said original act," and rendered a judgment in favor of the appellees, from which appellant has duly prosecuted this appeal.

Judgment affirmed.

Allen Hughes, for appellant.

1. This is an action upon a contract. The decision of this court upon the former appeal is that appellant was entitled to recover. It is conclusive. The former decision is conclusive where the facts are not different. Black on Jud. Prec. p. 283; 79 Ark. 185; 14 Id. 427, 621; 85 Id. 158; 92 Id. 554; 97 Id. 147; 104 Ark. 459; 108 U.S. 101 and many others, etc.; 152 Wisc. 589; 124 F. 171; 211 Ill. 183; 132 N.C. 86; 97 Ark. 147; 116 U.S. 567.

2. The description of the district is sufficient. 93 Ark. 168. But, if defective, the Legislature had power to authorize the assessment of the lands benefited. 107 Ark. 285; 113 Id. 363; 119 Ark. 188. If the creating act was invalid the provision in the repealing act for compensation would nevertheless be good. 83 Ark. 344; 170 U.S. 45; 98 Id. 113.

3. It is too late to raise the point of misdescription That is settled. No new evidence was offered on the trial. The act is a public act and the court takes judicial cognizance of such. 4 Wigmore on Ev. § 2572; 19 Ark. 630; 23 Id. 387.

4. The description is sufficient. There is a perfect identification of the lands subject to assessment. 107 Ark. 285; 113 Id. 363; 119 Ark. 188. The act amounts to a legislative levy and is a valid exercise of legislative power. 83 Ark. 344; 98 Id. 113.

Hawthorne & Hawthorne and D. K. Hawthorne, for appellees.

1. The act is void for uncertainty. 105 Ark. 308; 118 Ark. 119. The question of jurisdiction may be raised at any time. Here there was a void district, a void contract and there can be no recovery. 90 Ark. 195; 88 Id. 1; 70 Id. 346; 48 Id. 151.

2. The act of 1913, repealing the act of 1911 is also void in that it attempts to place an undue burden upon the property, by exempting property of railroads, public roads, tram roads and town lots within the original district. 48 Ark. 370; 96 Id. 419.

3. Interveners are not...