134 Ark. 447 | Ark. | 1918
Lead Opinion
(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.
“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.
Rehearing
(on rehearing). Counsel for appellee in their motion for a rehearing rely upon the case of Ex parte Baldwin, 118 Ark. 416. iWe do not think that case sustains the position taken by counsel. We did not overlook it in our original opinion but thought that it rather tends to uphold the decision of the court. There the circuit court record showed, “Ordered that court adjourn until-,” and immediately following the entry, “ordered that court adjourn until Thursday morning, March 4, 1915.’-’ The cpurt was of the opinion that the first order showed on its face that it was incomplete and that it was controlled by the subsequent entry on the same day showing that the adjournment was to a definite date. Hence the court held that the term did not lapse. In that case the court said that our statute does not take account of parts of days and for that reason has the power to reconvene on the same day for the purpose of transacting business even after it has announced an adjournment. The court, however, expressly stated that our statute manifestly contemplates different days of the term of court. Section 1531 of Kirby’s Digest provides for the adjournment of court to a distant day. This shows that we have departed from the common law rule that a term of court shall be considered as one day. For that reason when a court adjourns to a distant day and does not reconvene the same day, the functions of the court cease after the expiration of the day on which the order of adjournment is made until the day fixed for reconvening. During the interim the court has no power to transact business. In this State both the time and place of holding court in each county are fixed by law. Litigants must take notice of the time and place where courts of record are held.
When the court made the order adjourning to a distant day the litigants and interested parties had a right to assume that the functions of the court would cease until that day and that no business would be transacted in the court until the day designated for the court to reconvene.
According to the record, the court adjourned to a given day in the future and without rescinding that order convened court on a day between the date of the adjourning order and the date fixed for the court to reconvene. The order in question was made on that day and the court had no power to make it.
Therefore, the motion for a rehearing will be denied.