(dissenting). The inclusion of lands in section 18, township 9 south, range 32 west, which are five miles from the other lands embraced in the district, does not evidence an intention to include intervening lands, if the lands in said section were included through a clerical error. If included through a misprision, it follows, as a matter of course, that the Legislature never intended to include the lands between said section and the main body of lands embraced in the district. This is the very point at issue in this case, and the court should have determined the issue one way or the other before-finding that the Legislature intended to include the intervening lands. The rule announced in the case of Heinemann v. Sweatt was based upon the fact that the Legislature really intended to include the lands not adjacent to other lands embraced in the district. And the intent was not determined from the mere inclusion of the remote territory, but from a reading- of the whole act. In rendering the opinion in the case of Heinemann v. Sweatt, 130 Ark. 70, the court took occasion -to say:
“The method of description adopted by the Legislature does, indeed, indicate an intention to embrace all the lands abutting on the west side of the road, and this would indicate that a mistake was made in describing a portion of section twenty-six (26) instead of a portion of section twenty-eight (28), but it is quite a different question for us to undertake to treat this as merely a clerical error and undertake to correct the error by substituting a' description of land which the framers of the statute entirely omitted. We may be fully satisfied that the Legislature intended to describe section twenty-eight, but yet we are powerless to correct the error, for the simple reason that to do so would be purely a matter of legislation on our part. That would constitute an amendment of the statute to conform to what we conceive to be the legislative intent. In other words, the case presents a situation where we are reasonably certain that the language used does not express the legislative will, yet we are not at liberty to substitute the language which we think will express it.”
In the instant case, a substitution of one tract for another is not required. There is nothing in the act to indicate an intention to include all the lands on any particular side of a road or other monument, as in the case of Heinemann v. Sweatt, supra. So, the lands in said section 18 can be eliminated under the rule that they were included by mistake, or by clerical error. Of course, if it were necessary to substitute other lands to carry out the purpose or intent of the Legislature, such act on the part of the court would be a form of Legislation, but, it is in no sense legislation to treat the inclusion of lands in said section 18 as a clerical error. I do not question the soundness of the doctrine announced in Heinemann v. Sweatt, supra, but I think the application of the doctrine to the facts in this case clearly erroneous. „
I also think the act should be upheld under the doc trine announced in the case of Snetser v. Gregg, 129 Ark. 542. The provision including section 18, township 9 south, range 32 west, is independent of the other portions of the section describing the boundaries of the district. It may be eliminated because included through a clerical error, leaving intact all the lands intended by the Legislature to be embraced in the district. The act itself provided for just such a contingency as we have here, in the following language:
“If for any reason any provision of this act shall be held to be unconstitutional, it shall not affect the remainder of the act, but the act in so far as it is not in conflict with the Constitution, shall be suffered to stand.” For the reasons given, I thinlc the decree should be reversed and the act declared valid.