Morgan Engineering Company v. Cache River Drainage District

• Decision Date: 30 November 1914
• Docket Number: 16,143
• Citation: 172 S.W. 1020,115 Ark. 437
• Parties: MORGAN ENGINEERING COMPANY v. CACHE RIVER DRAINAGE DISTRICT
• Court: Arkansas Supreme Court

172 S.W. 1020

115 Ark. 437

MORGAN ENGINEERING COMPANY v. CACHE RIVER DRAINAGE DISTRICT

No. 16, 143

Supreme Court of Arkansas

November 30, 1914

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

Judgment reversed and cause remanded.

Allen Hughes, for appellant.

1. The court erred in limiting appellant's recovery to the sum of $ 14,665.28, the undisputed evidence showing that it is entitled to recover $ 17,082.48, being the face of the warrants in evidence, with interest thereon for one and one-half years.

Construing together all the provisions of sections 5 and 19 of the act creating the drainage district, all plans and surveys are to be made by the engineer under the supervision of the board of directors, and this power includes the power to prepare and give to the assessors the data necessary to enable them to discharge the duties devolved upon them in reference to the extensions of boundary.

2. The General Assembly can pass no law impairing the obligations of a contract. If the repealing act is construed as having the effect to limit the recovery here to what a jury may say is reasonable, without reference to what the contract provides then the act to that extent is unconstitutional. 115 U.S 566-574; 103 U.S. 4-10; 116 U.S. 131; Cooley, Const. Limitations (7 ed. ), 411; 36 N.E. 771; 27 O. St. 426; 49 Ark. 190; 33 Ark. 81; 57 F. 1030.

This contention does not seek to strike down the repealing act. The provision we complain of is really an unnecessary part of the act. It seeks, if appellee's construction is correct, to prescribe the rule by which the judicial department shall determine rights already vested. The General Assembly could not do that, and if it has attempted to do so, the effect is incidental only.

Hawthorne & Hawthorne, for appellee.

Without doubt, the Legislature had the power to repeal the act creating the drainage district. By the passage of the repealing act it did not impair, nor seek to impair, the obligation of appellant's contract. It repealed the law under which the contract was made, but if it failed to provide a remedy or a forum in which appellant could enforce its contract, this court has no power to interpolate a remedy for it in the statute. Appellant must accept the terms of the statute and recover compensation for its services, or wait until such time as the Legislature may provide a remedy under which to enforce the contract. This court can not afford the relief asked for under the contract without invading the province of the Legislature and interpolating provisions in the act which were not contemplated by the Legislature. 102 U.S. 472; 19 Wall. 107.

OPINION

HART, J.

Both the Morgan Engineering Company, hereinafter called the engineering company, and the Cache River Drainage District, hereinafter called the drainage district, have appealed from a judgment of the circuit court allowing a claim of the engineering company against the drainage district. The facts are as follows:

The Cache River Drainage District was created by a special act of the Legislature, approved June 2, 1911. It included within its boundaries parts of Craighead, Jackson and Lawrence counties. See Special Acts, 1911, page 1245. The first section of the act specifically and definitely described the boundaries of the drainage district; section 2 provided for a board of directors for the drainage district, whose duty it was to carry into effect the provisions of the act; section 5 provided for the appointment of a chief engineer by the board of directors, and stated the duties that were to be performed by him; other sections of the act provided that, in order to obtain a proper outlet for the drainage system, the directors might construct ditches or do other work beyond the boundaries of the district, so as to carry the water to some running stream or proper outlet.

The board of directors made a contract with the engineering company to furnish all engineering services required in making the surveys and constructing the ditches provided for under the act. It agreed to pay them therefor five and one-half per cent of the estimated cost of the construction. The contract provided that when the full work on which the plans were based was completed, and the plans and specifications completed and filed with the district, the district should pay to the engineering company 2 per cent of the estimated cost of the work. The remaining 3 1/2 per cent was to be paid at a later time, designated by the contract.

The engineering company, with the consent of the board of directors of the drainage district, surveyed certain lands which lie outside of the boundaries of the district as set forth in the act creating it. This extra territory was included in order to give drainage to that territory, and also to foretell how the water from that territory would reach the district. The survey was made in order to give relief to the territory surveyed outside of the district, it being the intention of the board to embrace that territory in the district by proper orders to be made by the court, under the terms of the act, at a later date.

An estimate was made of the cost of the construction of the whole system, including that part to be added, and it is claimed by the engineering company that it is entitled under its contract to 2 per cent of that amount.

In 1913 the General Assembly of the State of Arkansas repealed the act creating the drainage district above referred to. See Act 119, Acts of 1913, p. 512. The repealing act reads as follows:

"Section 1. That the act to create the Cache River Drainage District, approved June 2, 1911, is hereby repealed.

"Section 2. All persons having claims against the Cache River Drainage District shall file the same with the county court of Craighead County within one year from the passage of this act, and upon filing such claim twenty days before the commencement of any term of court within one year, it shall be the duty of the county court to ascertain the extent and value of the services which were rendered the Cache River Drainage District, and to allow such claimant or his assignee reasonable compensation for such services rendered, and shall transmit to the respective county courts of Lawrence and Jackson counties certified copies of its proceedings, and it shall then be the duty of the respective county courts to extend said amounts pro rata according to acreage against the lands, found to be benefited by the proposed improvements as shown by the survey and assessment lists now on file in the office of the circuit clerk of Craighead County, in the respective counties, which sums shall be extended and placed upon the tax books of the respective counties and collected by the collector thereof as other taxes are collected, and paid over to the treasurer of Craighead County, and by him paid to the respective claimants or their assignees in the order in which the judgments are rendered; provided, that as to certificates of indebtedness, or warrants, heretofore cashed by the treasurer, they shall be payable, principal and interest, as stated on their face. Provided, that any land holder within said district may appear at any time before the allowance of any claim and make himself a party to said proceedings and contest the same both as to the amount and the liability of the drainage district for such services, and when such intervention is filed it shall be the duty of the county court to hear and determine the amount due and render a judgment therefor, from which either party may appeal at any time within six months as is now provided by law for appealing from judgments and orders of the county court. Upon appeal, the case shall be tried and disposed of as common law cases are usually disposed of. Provided, further, that if any persons shall intervene and contest the allowance of any claim, they shall be liable for cost--if the claim is allowed--for the amount demanded, and if the claim is not allowed for the amount demanded, the cost shall be borne by the persons presenting such claims.

"Section 3. This act shall take effect and be enforced ninety days after its passage."

The claim of the engineering company was presented to the county court in compliance with the terms of the repealing act just quoted and from the judgment rendered by the county court the engineering company duly prosecuted an appeal to the circuit court, and in the circuit court the cause was tried before a...