State ex rel. Hall v. Canal Construction Co.

HAET, 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 defects in the establishment of this district together with other drainage districts in Poinsett County. Section 3 of the act provides that the special assessments which had been levied by the county court against the lands of the district shall constitute a valid and paramount lien upon such lands. The section also provides that the district shall be declared legally established. Section 4 provides that the payment of the bonds of the district shall be secured by the special assessments levied before or which might thereafter be levied against the lands in the district on account of the location and construction of the drainage improvement. Section 5 declares that the benefits to the lands shall constitute the basis for an assessment. It further provides that in the event the aggregate of the amount which had been apportioned and assessed against the several tracts of land in the district, shall prove insufficient to pay the costs of the location, construction and repairs of the improvement, the county court of Poinsett County may, by order entered of record, provide for an additional assessment against the several tracts of land in the district in proportion to the benefits ascertained as above mentioned. It also provides that every such additional assessment shall be made in the manner provided by law for making the original assessment. Acts of 1913, Act 23, p. 107. (1-4) It is well settled that the Legislature has the power to pass healing acts which do not impair the obligation of contracts nor interfere with vested rights. Green v. Abraham, 43 Ark. 420, and Gibson v. Incorporated Town of Hoxie, 110 Ark. 544. It is well settled in these and in numerous other cases of similar import in this State, that if the defect consists in doing some act, or in the mode or manner of doing it, which the Legislature might have made immaterial by a prior law, it may do so by a subsequent one. It is manifest that the provision that no bids shall be entertained which exceed the estimated cost of the construction more than 25 per cent, might have been dispensed with by the Legislature on the original statute. Hence in the application of the rule in regard to curative acts, the Legislature might dispense with this requirement by a subsequent statute. This is virtually conceded by counsel for appellants, but it is insisted by counsel that while these curative acts may have validated the proceedings, so far as the payment of the aggregate amount of $230,231.50 is concerned, its action was void so far as authorizing the payment of an additional amount for the extra yardage which was found necessary for the completion of the contract. This brings us to a consideration of the provisions of the original contract for the construction of the improvement.. By its terms' the rights and obligations of the parties to' it are ■created, and, as we have already seen, the Legislature can not pass an act impairing its obligations or interfering with rights vested under it. The subject matter of the contract was the construction of the drainage ditch or canal. In order that contractors might more intelligently bid upon the work of construction, the engineer for the district made a survey of the proposed route and laid it off into numerous stations. A detailed estimate of the amount of dirt to be removed on each station was prepared by the engineer and submitted to the bidders as a part of the specifications. It seems that in footing up the totals a mistake was made in the amount of yardage of earth to be excavated before the ditch could be constructed according to the specifications. This was not discovered until more than 80 per cent, of the work of construction had been completed. The construction company refused to go any further until the mistake was corrected. It claimed that it made its bid at a certain per cent, per cubic yard and that the gross sum named in the contract was simply the estimate of the total cost under the specifications. We think this construction is a reasonable one and is borne out by the two sections of the contract which we copied in our statement of facts. The bid of the construction company was predicated upon the correctness of the estimates prepared by tbe engineer of tbe drainage district. It conld not intelligently make a bid without surveying tbe work itself or adopting tbe survey and estimates made by tbe engineer of tbe district. Doubtless tbe parties bad gone over tbe proposed route and bad observed tbe kind of eartb that was necessary to be removed and tbe amount they would bid, of course, would largely depend upon tbe number of cubic yards of eartb to be removed. Tbe construction company would be entitled to be paid for tbe total number of the cubic yards of eartb excavated by it at tbe percentage price per cubic yard named in tbe contract. Their rights under tbe contract could not be subsequently impaired either by tbe drainage district or by tbe Legislature. Recognizing that vested rights under tbe contract could not be interfered with, tbe Legislature passed tbe Act of 1913 referred to above, curing all defects and ratifying all proceedings for tbe establishment of the drainage district and providing for additional or new estimates upon tbe lands in the district. Acts of 1913, Act 23, p. 107. (5-6) As we have already seen, section 5 provided that tbe county court by an order entered of record might provide for additional assessments against tbe lands if it should be found that tbe aggregate of tbe amounts already assessed should prove insufficient to pay tbe costs of tbe improvement. Under this section tbe county judge caused tbe order dated October 26, 1914, to be entered upon tbe records of tbe county court. It will be noted that under tbe terms of tbe act the order must be made by tbe county court and could not be made by the judge thereof in vacation. Tbe opening order of tbe county court for tbe October, 1914, term is as follows: “OPENING- ORDER State of Arkansas, County of Poinsett. “Be it remembered, That on this tbe 5th day of October, tbe same being tbe first Monday in October, and the time fixed by law for tbe bolding of a term of the Poinsett County Court; present and presiding was the Hon. B. F. Cole, judge of said court; also present and assisting in holding said court was the Hon. A. H. Landers, clerk of the said court, and J. C. Hooten, sheriff of said court, and after proclamation of the sheriff in opening said court that following proceedings were had and done, towit: ■ “Ordered that court adjourns until October 28, 1914. “B. F. Cole, Judge.” The order in question is entered upon the record of the court following the opening order and purports to bear the date of October 26, 1914. Under our statute certain times and places are fixed by law to hold court. In the instant case the court was open at the time and place and in the manner provided by law. It was a matter which rested in the discretion of the presiding judge to' hold the court open until all its business had been dispatched or to adjourn to a day certain. It appears from the record that on the opening day the court adjourned to a fixed day later in the term. This he had the power to do. Dunn v. State, 2 Ark. 229; State v. Williams, 48 Ark. 227, and Streett v. Reynolds, 63 Ark. 1, and Ex parte Baldwin, 118 Ark. 416. When the court adjourned to a day certain, all per-, sons interested had the right to remain away until the day fixed by the court to convene again, and the judge could not before that day arrived convene the court and proceed with the dispatch of the cases and other matters pending therein. The fact that by a statute in this State courts must be held at fixed times and places, raises the implication that courts can not assume a vagrant character and hold their sessions at other times or places than those provided by law. Mell v. State, 133 Ark. 197. The presiding judge had no right to convene the court on the 26th day of October, after having adjourned it to a fixed day which was later in point of time. Therefore the order entered upon the record of October 26, 1914, was made in vacation and furnished no basis for an additional assessment of the land that was within the district. To make such assessment a valid one we are of the opinion that it must be made by the county court during its sitting and not in vacation. The last part of the section which provides that every such additional assessment shall be made in the manner provided by law for the making of the original assessment means that it must follow the general method and form provided for making the original assessment. It does not refer to the notice to be given in the original assessment as contended by counsel for appellants. This is obvious when we consider the statute in connection with the object sought to be accomplished by it. It was evidently the intention of the law makers to provide for an additional assessment to cover the cost of the additional yardage which had been found to exist by reason of the mistake in making the totals of the original estimates on the various stations. -The framers of the statute evidently intended to give to the county court the power to make this additional assessment and provided that it should be made in the general method or form provided for in the original assessment. 'Because the order for the additional assessment was made in vacation and not during the session of the court, the decree will be reversed and the cause remanded for further proceedings not inconsistent with this opinion.