122 Ark. 491 | Ark. | 1916
(after stating the facts). (1) In its opinion the learned trial court states as follows: ‘ ‘ The act of 1911 is void for want of a definite description of the boundary of said district. An examination of the public maps and surveys of the State will show that there is no possible certain way of closing the ¡boundaries of said district without doing violence to the plain and unequivocal words used in the statute. It is doubtful whether it was intended by the statute to use as a boundary the range line between 2 and 3 in Jackson County, 2 and 1 in Jackson'County, orl east and 1 west, between Jackson and Craighead Counties. It is certain that if the range line between 2 and 3 in Jackson County is followed north that no point ¡on the Iron Mountain'•Railway can be reached. It follows that the attempted description of the drainage district is void for uncertainty. Therefore, no act or 'contract of the directors would have any validity. The repealing act, treated as a curative act, does not attempt to make certain the boundaries of the district, and as a curative act, can not do more than cure irregularities. The Legislature would be without power to create a drainage.district having no boundaries; therefore, the repealing act would not cure the void act referred to.”
These conclusions of the learned trial judge are correct and we hereby adopt and aprove them as our own.
In Ferrell v. Keel, 105 Ark. 380-392, this court had under review an act creating a certain levee district, in which the boundaries of the district were not any more accurately defined than they are in the present case. In that case we said: “ We understand the law to be, that, when the Legislature creates a levee or other improvement district, it must define its boundaries with certainty, or provide for the same being done 'by some other agency. The Legislature undertook to define the limits of this district. We have carefully considered the act, and hold that it fails to define the limits of the district with sufficient certainty to determine what lands are included therein.” Then, after setting out the defects, the court continues: ‘ ‘ There are other defects in the description, but we do not discuss them, as those already mentioned are sufficient to defeat the act for uncertainty in the description of the territory proposed to be embraced therein. We hold the act invalid for this reason.” 1S0 here.
Counsel for appeOlant says: ‘ ‘ The act calls for the range line between 2 and 3 running to south line of Lawrence County. That line does not run to the monument named. No range line between 3 and any other township whatever, and no range line between 2 and any other township whatever except 1 would reach the south line of Lawrence County. No other range line in the district would do so. We can not make the call mean anything without making it mean the range line between 1 and 2, and so construed it harmonizes with the remainder of the description.”
To make such a radical change in the language of an act of the Legislature as is here pointed out in order to make certain the description of the boundaries- of an improvement district is purely a legislative, and not a judicial function. There is nothing to indicate that the defective description was a mere clerical -misprision, and we find no authority in any of the canons of construction that would justify us in substituting entirely different words and figures for those actually used by the Legislature in order to effectuate what we might conceive to be the legislative purpose. To do so would be to ignore the language actually employed by the Legislature and to substitute therefor our own. The intention must 'be gathered, mainly, from the language of the act itself. State v. Lancashire Ins. Co., 66 Ark. 466-72.
(2) In reversing the case on the former appeal we said: ‘ ‘ The court should have taken proof of the value of the services under the contract which had been performed 'by the engineering company at the time the repealing act was passed, and should have found for the engineering company for that amount.”
'Counsel for apellant contends that the circuit court was foreclosed, on the last trial, by the above language, from inquiring into the validity of the contract, because such language was an adjudication of the binding effect of the contract, and that appellees are bound by the above language under the doctrine that such language, whether right or wrong, was the “law of the case.” And he cites numerous authorities upon which he relies, among others, the following: Scott v. Fowler, 14 Ark. 427; Yell v. Outlaw, 14 Ark. 621; Hollingsworth v. McAndrew, 79 Ark. 185; National Surety Co. v. Long, 85 Ark. 158; St. Louis, 1. M. & S. Ry. Co. v. York, 92 Ark. 554; Lewis v. Jones, 97 Ark. 147.
These decisions but announce and adhere to the rule that where an issue has been raised in the court below and has been finally adjudicated on appeal to the Supreme Court, the same issue cannot be re-opened on another trial in the circuit court, and that where a cause, on the former appeal, is reversed and remanded for a new trial, if there was not any material 'change in the second trial from the testimony and facts established in the first trial, the principle of law announced as applicable to thoise facts in the first trial must also prevail in the second, even though this court should conclude on the second appeal that the principles of daw announced on the first appeal were erroneous. Lewis v. Jones, supra; Westerfeld v. New York Life Ins. Co., 107 Pac. 699.
But this doctrine can have no application here for the reason that on the former appeal the judgment was reversed because the court erred in its instructions to the jury, and the case was remanded with directions, not “to render judgment in accordance with the opinion,” but, for “further proceedings in accordance with the opinion.” There is a marked distinction between the two. “Further proceedings” contemplated that there .was to be a new trial on the issues that might be presented, and that proof might (be introduced on these issues. The order was in effect a remand for a new trial in general. Of course, all further proceedings that were to be had were to be in accord with the opinion, and if the issues on the second trial and the testimony remained substantially the same, then the appellant would have been entitled to a judgment for the value of its services under the terms of the alleged contract under which it claimed, computed in the manner directed by this court in its opinion on the former appeal. But, as was said in St. Louis, Iron Mountain & Southern Ry. Co. v. York, supra, “The finding of the facts upon the former appeal can not be binding as the finding of facts in this second trial, because the testimony on the second trial might be different from or additional to that given on the first trial. But the principles of law determined and announced upon the former appeal are binding, and must stand as the law of this case; and if the testimony upon this second trial is substantially the same as on the first trial, then the former decision of this court upon all questions of law involved in this case must be followed on this appeal.”
In the case of Hollingsworth v. McAndrews, supra, relied on by appellant, “the case was not reversed and remanded for a new trial,” or for further proceedings, but with instructions to the lower court “to rend.er judgment in accordance with the opinion.”
The rule of law which controls here is as follows: “When, on an appeal or writ of error, a cause is reversed and remanded for new trial, the case stands as if no action had been taken by the lower court. If the facts developed on second trial remain the same as they were on the first trial, the lower court must be governed in applying the law to the facts, by the principles announced by this court in that case as controlling. If the facts are different, then the lower court may apply a different rule of law.” Hartford Fire Ins. Co. v. Enoch, 79 Ark. 475.
Now, on the first trial the appellees, interveners, did not challenge the validity of the drainage district, and they introduced no evidence to show that the district was invalid. Their contention was'that under the act abolishing the district the appellant should be allowed to recover only such conpensation as the jury might find reasonable. They did not directly call in issue appellant’s contract, but only claimed that it was not entitled to recover under it. On the last trial the issues were entirely changed. By permission of the court the appellees were permitted to put forth an entirely new defense to appellant’s claim, and to set up that, the district being void for uncertainty, the directors had no authority to enter into a contract with appellant, and that therefore such contract was void, and that appellants were not liable at all, and they introduced evidence to isustain their contention. Thus the issues and the facts on the last trial were entirely different from what they were on the former appeal, and hence what was said by us in the former opinion as to the contract and its binding effect would not be law applicable to the changed issues and facts as discovered iby this record.
(3) 'Counsel for appellant contends that, although all the prior proceedings were invalid, yet the general assembly had power to pass the act of 1913 abolishing the district and directing a levy upon the lands intended to be benefited for the preliminary expenses incurred under the alleged contract with the appellant, and that the act levying the assessment for this purpose adopted the description of the lands as assessed, and that therefore this latter act was not void for uncertainty. Citing, Board of Dir. Crawford Co. Levee Dist. v. Dunbar, 107 Ark. 285; Fellows v. McHaney, 113 Ark. 363, 371; Thibault v. McHaney, 119 Ark. 188, 177 S. W. 877. We can not agree with this contention of counsel, for the act of 1911, purporting to create the Cache River Drainage District, as we have seen, was void ah initio because of the uncertainty in the description of the boundaries’ of such district. In the cases cited by appellant to support its contention the acts creating the districts were valid acts, and the districts were therefore legally brought into existence, and there was authority for incurring the preliminary expenses in forwarding and promoting the improvement contemplated. But such was not the case here.
The act of 1913 did not purport to and could not cure the defects of description in the act of 1911 that rendered the .so-called Cache River Drainage District void for uncertainty; and it was not within the power of the Legislature of 1913 to validate contracts made with those acting in the capacity of directors of a district that never had in fact any existence and to make the preliminary expenses incurred under these void contracts liabilities against the land included in the proposed district. To do this would be taking property of the appellees and other land owners without due process of law and without compensation.
It follows that' the court did not err in refusing appellant’s request for declarations of law, and did not err in the findings of fact and declarations of law made by it, and its judgment in favor of the appellees is correct and must therefore be affirmed.
