State ex rel. Hall v. Canal Construction Company

• Decision Date: 06 May 1918
• Docket Number: 346,17
• Citation: 203 S.W. 704,134 Ark. 447
• Parties: STATE ex rel. HALL v. CANAL CONSTRUCTION COMPANY
• Court: Arkansas Supreme Court

203 S.W. 704

134 Ark. 447

STATE ex rel. HALL v. CANAL CONSTRUCTION COMPANY

No. 346, 17

Supreme Court of Arkansas

May 6, 1918

Appeal from Poinsett Chancery Court; George T. Humphries Chancellor: reversed.

Decree reversed and cause remanded. Motion for rehearing denied.

Hawthorne & Hawthorne, for appellants.

1. The order of the court was void for fraud and collusion. It was in excess of 25 per cent. of the estimated cost for the completed work. Kirby's Digest, § 1416, 1420, 1431 etc. This was not cured by the curative Acts of 1909 and 1913. 90 Ark. 166; 94 Id. 588; 100 Id. 63 390; 114 Id. 551; 79 Id. 289; 48 F. 182; 20 Cal. 442; 45 N.E. 207; 50 Id. 1052, etc.

2. No notice was given property owners as provided by law. The court had no authority to make the additional levy. The contract was let for a gross sum. 83 Ark. 344; 86 Id. 231; 164 U.S. 112; 94 Ark. 338; 64 Id 108; 126 Id. 518.

3. The order was made in vacation. 71 Ark. 226.

4. Mistakes like this can not be corrected. 54 Ill.App. 371; 12 Id. 273; 69 S.W. 255; 101 P. 957; 157 F. 227; 105 Ark. 37; 84 Id. 349; 71 Id. 185; 91 U.S 50; 38 S.E. 160; 94 Ind. 211.

5. Plaintiffs are entitled to recover the excess paid on a void contract. There was no authority to levy the additional assessment. 94 Ark. 338; 64 Id. 108; 126 Id. 518. The canal company can not recover for the additional yardage as its original bid was excessive, and the curative acts could not cure this. Judgment should be entered here for the $ 17,512.76. 115 Ark. 587; 43 L. R. A. 584; 96 Ark. 410; 65 Id. 498; 86 Id. 498; 86 Id. 109; 39 Tex. 236; 42 N.Y. 676, etc.

N. F. Lamb, for appellee.

1. The judgment was rendered in open court, and was not a vacation order. 7 R. C. L. 991, § 18; 77 N.W. 925; 118 Ark. 416.

2. The judgment of October, 1914, term is right and from a standpoint of justice between the parties should be treated as valid, even in the absence of notice. 50 Ark. 458; 51 Id. 341; 52 Id. 81; 54 Id. 1; 56 Id. 516; 57 Id. 352; 72 Id. 101-106; 74 Id. 292; 81 Id. 352; 84 Id. 527; 86 Id. 591; 94 Id. 347; 104 Id. 449; 107 Id. 415.

3. There was no fraud nor conspiracy.

4. If the bid exceeded 25 per cent. of the estimated cost, it is not void. All irregularities were cured by the Acts of 1909 and 1913.

5. No defense was shown to the proceedings. The work has been done. If a mistake was made it was properly corrected. All that the county court did at the October, 1914, term was by consent of all parties, after thorough investigation into the mistake. 73 Ark. 281. Equity and justice have been done and the decree should be affirmed.

STATEMENT OF FACTS.

On the first day of May, 1916, appellants brought suit in equity against appellees to enjoin them from collecting levee taxes under an alleged void order of assessment and also to declare void said assessment as a cloud upon the title of their lands. The record is voluminous. So in our statement of facts only such parts of the record will be stated or referred to as will be necessary for a determination of the issues raised by the appeal. Drainage District No. 3 was organized in 1907, under our general statutes relating to the subject. Kirby's Digest, § 1414 et seq. The cost of the construction of the main ditch and the laterals, as shown by the report of the engineers and viewers, was $ 108,000. In January, 1908, the contract for the construction of the proposed improvement was offered at public letting, and the Canal Construction Company, having offered to perform the work for $ 230,231.50, was given the contract therefor. There was a mistake made in the advertisement, and the work was again advertised to be let at public bidding. The Canal Construction Company again bid the sum of $ 230,231.50 and became the contractor for the construction of the improvement. It was shown by witnesses that Cole & Hardy offered to perform the work for a less sum.

On the other hand the president of the Canal Construction Company testified that Cole & Hardy did not make a bid on the work in this district, but made a bid on the work in another drainage district in Poinsett County which was let at the same time. Be that as it may, a written contract was entered into between the board of directors of the drainage district and the Canal Construction Company for the construction of the proposed improvement. We quote below such portions of the contract as we deem necessary for a proper determination of the issues raised by the appeal. One section of the contract reads as follows:

"Witnesseth, that the Canal Construction Company of Chicago, Illinois, has this day contracted and agreed with the county court of Poinsett County, Arkansas, acting for the use and benefit of Drainage District number Three (3), in said Poinsett County, to clear the right-of-way and make all excavation necessary in the construction and completion of the ditch or canal in Drainage District Number Three (3), and the nine (9) lateral ditches in said Poinsett County, as the same is now set forth in the map of said Drainage District Number Three (3) and the profile of the said ditch or canal in said Drainage District Number Three (3), now on file in the office of the clerk of said county court of Poinsett County, at and for the sum of thirteen and 95/100 (13/95) cents per cubic yard, or the gross sum of $ 230,231.50 for 1,650,405 cubic yards shall be taken as full payment for both the clearing of the right-of-way and the excavation necessary in the construction of said ditch or canal and that no estimate shall be made or charge made or money collected on account of the clearing of the right-of-way."

The engineer of the district made detailed estimates of the cost of the work and showed in his estimates the cost of the work in each station.

Another clause of the contract reads as follows:

"And the said Canal Construction Company does hereby further agree that the number of cubic yards in each station or section of the said ditch or canal shall be taken as correctly estimated in the table of cubic yards by stations of one hundred feet each in length now on file in the office of the clerk of Poinsett County, Arkansas, and in no event shall the Canal Construction Company ask for a greater number of cubic yards in any section or station of one hundred feet than is set forth in said tabulated statement; and the same is hereby made a part of this contract and agreement in the same sense as if the same were hereto attached and made a part hereof."

After the work had progressed until about 87 per cent. of it had been done, it was discovered that a mistake had been made in footing up the estimates so that it was necessary in order to construct the ditch as provided in the contract that an additional 117,503 cubic yards of earth be removed. The contractor claimed that under his contract with the drainage district he was to receive 13/95 cents per cubic yard for all the earth excavated and refused to excavate the 117,503 cubic yards of earth required to complete the improvement unless he was paid therefor the sum of 13/95 cents per cubic yard, amounting in the aggregate to $ 16,328.89. After consultation with the commissioners for the district and the county court, it was agreed that the construction company would be entitled to this additional amount under its contract with the district. The Canal Construction Company then proceeded with the work and finished its construction in the fall of 1913. On the 26th day of October, 1914, an order was entered upon the records of the county court providing for an additional assessment against the various tracts of land in the district for the payment of this additional cost. This order purports to have been made under section 5, of Act 23 of the Acts of 1913. This act was passed for the purpose of curing defects and ratifying all the proceedings for the establishment of certain drainage districts in Poinsett County, including the one in question. It is claimed by appellees that this order was made during the sitting of the county court, and by appellants that it was made in vacation and on that account is void. The purported order levied additional assessments payable in one, two and three years for the purpose of paying the additional costs above referred to. Hence this lawsuit. Other facts will be stated or referred to in the opinion.

The court found the issues in favor of appellees and the case is here on appeal.

OPINION

HART, J., (after stating the facts).

It is contended by appellants that appellee, Canal Construction Company, can not recover the cost of the additional yardage for the reason that its original bid was in excess of 25 per cent. of the estimated cost for the completion of the work. Section 1431 of Kirby's Digest provides that no bids shall be entertained which exceed the estimated cost of the construction more than 25 per cent. in any case. The statement of facts shows that the gross sum bid by the Canal Construction Company for the construction of the improvement was $ 230,231.50. This, it is claimed was more than 25 per cent. of the estimated cost of the improvement. This defect in the organization of the district was attempted to be cured by two acts subsequently passed. The Legislature of 1909, passed an act to cure all defects and irregularities in the organization of certain drainage districts in Poinsett County, including the one in question.

Section 2 provides that the assessments that have been made or that may hereafter be made upon the lands in the district to pay the costs of constructing the improvement shall not be set aside or declared void by any court on account of any defect or irregularity in the proceedings or for any cause whatever. Acts of 1909, p. 308.

The Legislature of 1913, also passed an act to cure...