(on rehearing). It is insisted in the motion for rehearing that the case was decided upon a point not briefed by either side, towit: that the contract had been let upon a bid based upon an offer to accept bonds in payment for the work. It is true that this point was not presented in the briefs, but it was presented by the pleadings in the case. We were asked to decide the effect of the special act of the G-eneral Assembly, set out in the original opinion, upon the validity of the bonds which had been issued- by the commissioners, the cancellation of which was asked in the complaint. Under the allegations of the complaint, as explained by the exhibits, it appeared that the contract for the construction of the canal was' a voidable one, "and our decision to that effect was decisive of the case, and accordingly no other question was discussed in the opinion. It is now alleged in the motion for rehearing that the recital of the contract, which controlled our decision, is an erroneous one, and the fact is alleged and conceded that the contract was let upon a money basis, upon’which there was competitive bidding for the work. We think our decision that there must be a common basis upon which all bidders may compete, and that basis must be a money basis, is correct and we reaffirm it, and under the facts of this record, as wé understand them to be, judgment could be rendered upon the pleadings; but, as the cause has been remanded, the parties may amend their pleadings to present such issues as are actually within the existing facts.
• It is strenuously urged that we are in error in our interpretation of this drainage law, in that we have placed limitations upon the discretion of the commissioners which are not placed there by the drainage act, under which they had proceeded. We recognize the principle, well established by our own decisions, as well as by those of other courts, that where a discretion is imposed by the law in the discharge of duties, such as those exercised by the drainage commissioners, that that discretion is to be exercised by the executive officer, who has the function to perform, and the duty to discharge, rather than by the court which reviews their action. Cherry v. Bowman, 152 S. W. 133, 106 Ark. 39. There is nothing in our opinion, nor is there anything in the act, under which these commissioners were proceeding, which forbids the sale of their bonds privately, nor does the act require that they be sold at par. Neither does 'the law prohibit the commissioners, after the contract has been let, from making the sale of the bonds to the contractor, who is constructing the improvement. The issuance of bonds is authorized to furnish means for anticipating the collection of the revenues, and this money can be realized by a sale of bonds to- the contractor, as well as to any other person, and there is no inhibition in the law against the use of money thus raised paying for the construction of the improvement. But no authority is found in the statute for the board to deliver bonds to contractors in advance. It can either issue bonds for borrowed money, or issue to contractors as the work progresses, negotiable evidences of debt, in payment for work actually performed in constructing the improvement. Before any money was borrowed, or before work was performed by tbe contractors, the Legislature withdrew authority for issuance of bonds, except upon petition of a majority of the land owners. Therefore the contract exhibited with the pleadings concerning the issuance of bonds was not an enforceable one, if its recitals reflect the board’s action in letting it.
Rehearing is denied.