Meek v. Christian

Hart, J.,

(after stating the facts).- It is first sought

to uphold the decree of the chancery court on the ground that the holders of the certificates issued to C. S. Christian were entitled to recover the face valué thereof and the accrued interest. It is claimed that there was a legislative assessment of benefits, and that, in making the same, the lawmakers are presumed to have had before them information as to the cost of the-construction of the proposed roads according to the plans and specifications within the rule announced in Summers v. Cole, 144 Ark. 494, and other decisions of 'this court. Therefore it is claimed that the case is brought within the principles decided in Bowman Engineering Co. v. Ark. & Mo. High. Dist., 151 Ark. 47. We do not agree with counsel in this contention. We have given a synopsis of the provisions of the special act creating the road improvement district, so far as is necessary to determine the issues raised by this appeal. It is true that the Legislature declared that all the land within the proposed district would be benefited at least to the extent of the cost of the improvement. Conceding that the Legislature is presumed to have had before it information as to the cost of the construction of the proposed improvement, still it could not know that the land in the district would be. benefited at least to the extent of this cost without making a legislative assessment of benefits. In other words, even if it should be presumed'that-the Legislature knew the cost of the proposed improvement,' it could not know the extent or amount of the benefits to the land within the district without making an assessment thereof. Its action in declaring the benefits aré equal to the costs of the improvement, without ascertaining what the benefits were, amounted to nothing more than an arbitrary finding on its part, and cainnot.be sustained by the court. It is well Settled that no local improvement can be undertaken without first ascertaining that the special benefits to the land' equal or exceed the cost of the improvement.

But it is contended that the Legislature made an assessment of benefits. Reliance is placed upon § 5 of .the act, which provides that all real property in the district .within the corporate limits of the city of Tex-arkana, and all that portion of the district-which is incorporated in and lies within the boundaries of Miller County Highway and Bridge District, will be benefited by the improvement to the extent of. 10 per cent, of the assessed value for State and county purposes for the year 1919 of each parcel of said property. This was only a partial assessment of benefits by the Legislature.

The record shows that the land .within the boundaries of Miller County Highway and Bridge District, for the most part, includes the north half of Miller. County, and the land within the South Miller County Highway District is situated chiefly in the southern-part of Miller County. The city of Texarkana is included in both disr tricts, and a part of. the. land within Miller County Highway and Bridge District is. also included in the South Miller County Highway District. '.Now the assessment of benefits on the- land not situated in the city of Tex-arkana nor in Miller County Highway and Bridge District was not included in -the assessment of benefits made by. the Legislature. Thus it will be seen that the greater part of the land in the proposed district is situated without the boundaries of the city of Texarkana and outside of the boundaries of Miller County Highway and Bridge District, and no assessment of benefits on it was .made or attempted to be made by the Legislature. /

On the other hand, the..act.provides that assessors shall be appointed, to, make such assessment of benefits. The record shows that assessors, were appointed for that purpose as provided by .the act, but it- does not show that any assessment of benefits was ever made by them. It is certain, -then, that no complete or final assessment of benefits was ever made as-contemplated in the act.

The commissioners of the district made a contract with C. S. Christian to. do all the engineering work for the district. The contract, by its express terms, includes the work of making the preliminary as well as the final survey of the roads proposed to be improved under1 thro terms of the act creating the district. The' contract includes the work of making detailed plans/specifications, and an estimate of -the cost of making’ the proposed improvement. The contract further provides that -the engineer shall receive for all of his services 4 per cent, of the cost of the improvement, and that one-half of this shall be paid upon the completion of the plans, specifications and estimate of cost. • • "

In Morgan Engineering Co. v. Cache River Drainage District, 115 Ark. 437, and other cases, we have uniformly held that contracts of this sort, providing for the payment of a specified part of the engineering fee upon the completion of the preliminary survey and 'the fifing of the estimate of cost thereof, are only a method of payihent, and do not make the contract divisible or separable. It follows from the cases cited above and Other decisions of this court that the contract made by the commissioners with Christian never became effective, because no complete and final assessment of benefits was ever made, and, until this was done, it could not be known whether or not the commissioners had the power to make the proposed improvement.

Therefore the facts and circumstances of this case make it certain that the engineer could only recover on a Quantum meruit basis for the services performed by him, and the holders of his claim against the. district could acquire no greater rights than he. possessed. • In short, if Christian could not recover on the certificates of indebtedness issued to him, it is equally .certain that the assignees of his claim could not recover on them. The reason is that the contract never, became effective and the certificates of indebtedness never became valid obligations of the district, and were not negotiable.

The act provides that the commissioners might employ an engineer to make a preliminary .survey of the roads proposed to be improved, and.'this ineludes the preparation of plans and . specifications showing the estimated cost of the improvément. This leaves Christian with a lawful employment, but no provision in the contract for the value and time of payriient of his services. The commissioners not only employed him. to do . the ■work of making the preliminary survey, plans,- specifications and estimates of cost of the proposed improvement, but they actually approved and received, his: report of the work done by him. Therefore, he is entitled to recover the reasonable value of-his services within the limits of the authority of.the commissioners to employ him. . , - : . •,

'Christian had an engineering party in the afield for eleven month's, and the engineer in charge rendered an itemized statement of the expenses thereof, which,.for the eleven months, amounted in the aggregate to. $21,-.191.52. This aggregate amount, did not include, the work of making the blue-prints of the roads or preparation of , the plans and specifications. During a part of this time Christian was engaged at work with the , field party, and was paid at the rate of $450 per month for /the, time he was actually engaged at work in /the field. 'The number oí miles- of final location of the proposed road was something over 1Í3 miles,, The improved roads were to be made of gravel, and the actual cost' of construction Was estimated to be $1,365,964.38, and the total cost, including the sodding of the, shoulders of the roads -.and the overhead charges, amounted to $1,511,900.97. Owing to the fact that many miles of the improved- roads had to be re-run for three of four times to get suitable grades, it was' riot practicable to' give the average number of miles located- each day. The roads were to be 'drained, graded, and'surfaced with'gravel. The engineer made 'frequent trips over the line, checking up the location and examining gravel-pits, to see whether' or not they were suitable; for road'building. This -was necessary in order-, to make a correct -estimate of the ■cost of the materials which were to be used in-the-con-struetion of tlie roads. It was necessary to cross-section-the roads in making a preliminary survey. This is necessary in order to determine the yardage of earth required'1 to he moved.' There were about 275,000 acres of land-included in the South Miller County Highway District.’ This includes the south half of the county, with an overlap on the territory embraced in the Miller County Highway and Bridge District. ■ •' • .. . .

According’to the testimony of O'.-S. Christian, the' actual cost of the field work of making a preliminary survey of the kind and character in this case is from $200 to $250 per mile. The cost of preparing the’ estimate's and’ the profits to the engineer, are not; included in this charge. The testimony of Christian in this respect was corroborated by that of three other engineers, who had had considerable experience in road building and who were familiar with the territory embraced-in this district. . One of these engineers had had several years’ experience in the employment of the United -States’ inroad building, and for something more than- a -year before,' he testified, had been State Highway Engineer for the State of Texas. He has also been engaged as United States district ■ engineer, and, as such, was* familiar with thé character of hard roads built in thé State of Arkansas and the kind’of lands embraced in the road district in question. All three of these engineers corroborated the testimony of Christian .as to the, expense of making a preliminary survey in a road- district of the 'kind in question in this case. They also-testified that Christian was a high-class engineer • and’ had had considerable experience in constructing- hard roads.

According to the evidence of Christian, it was necessary to have made the preliminary survey in as-much' detail as he made it in order to secure Federal aid and' to secure the'approval of the 'State Highway Engineer of the State of-Arkansas. The United States would' not grant Federal aid unless it was approved by the State Highway'Department,' and unless the preliminary survey was made in sufficient detail to enable the engineer who made it to approximately, at' least, make a correct estimate of the cost of the proposed improved roads. Opposed to this evidence is the testimony of a civil engineer who thought that a preliminary survey of the proposed roads could have been made for $150 per mile. On cross-examination, he . testified that it was worth 2 per cent, of the estimated cost of the improvement to-make such a preliminary survey. Thus it will be seen that a preponderance of the evidence shows that the amount' allowed by the court was not more than the reasonable worth of making the preliminary survey. Indeed, the taxpayers contest the allowance mainly on the ground that it; was made too much in detail to constitute a preliminary survey.

;We do not agree with counsel in this contention. The evidence of Christian, which is not contradicted on this point, was to the effect that it was necessary to have made the survey with as much detail as was done in order to. ascertain the exact yardage of dirt: to be moved, and that it was necessary to examine the road material, near at. hand in order to ascertain its fitness and to estimate the cost thereof. It is obvious that, if gravel would have to be hauled in from a distance, this would materially increase the cost of construction.

- The act made it the duty of the commissioners to prepare plans, specifications, and an. estimate of the cost of the work. They were authorized to employ engineers to assist them in doing so. It is manifest that.the intention of the Legislature in requiring the plans, specifications and an estimate of the cost was to eAable the commissioners to have before them definite information of the cost and entent of the proposed improvement to-enable them to decide intelligently whether it should be made. Another reason would be to inform the property owners of the character and probable cost of the. proposed improvement so that they might have an opportunity, to remonstrate against it, if they thought that the construction of the proposed roads under the terms of the act would prove too burdensome. Then, too, it was necessary to Nave a survey made of the parts' of the road which it was necessary to straighten, in changing from .a system of dirt roads to hard roads. This information, iwas; necessary to enable the county court to act with proper judicial .discretion in approving or re jetting such changes.

,, We; do not, deem it necessary to set out in detail or to enter into a minute discussion of all the evidence in the .case. It is sufficient to Say that there is nothing in the record which questions either the good faith of the commissioners in -contracting for the preliminary survey, or in the .conduct of Christian in making it. The whole record shows that the commissioners, and the engineer were actuated by a desire to ascertain as nearly as practicable the cost, of the proposed improvement in advance of making any contract for constructing it. It will be readily seen dhat a.too hasty and indefinite preliminary survey, would not .enable the commissioners to make an accurate estimate..of the cost of the roads. Of course, they could give the landowners an estimate of the probable cost of moving earth in the proposed roads, but a detailed ¡survey -would be necessary to give even am approximately eokrect estimate of . the. amount of yard-agfe'to be moved. This could not be done without proper cróss-sectxoning. ' -

Under .all the facts and circumstances as they appear in the record, we think that the sum of $27,489.10 was;a reasonable Compensation for making the preliminary survey. • -

This brings' us to the question of interest. As we have already seen, the chancellor erred in allowing the interest provided for in the certificates of indebtedness themselves, for the reason that no recovery can be had upon them.

In the case of Pritchett v. Road Improvement Dist. No. 4,167 Ark. 555, the engineer was allowed to recover interes tat the legal rate from the date of the filing of his claim> in, the circuit court. Therefore the allowance of interest on the claim. of the First National Company of St. Louis, Mo., from the time of. the commencement of the spit by it -was proper under the case just cited.

In adhering to the-rule in.regard to the interest laid down in this case, we are not-unmindful of the old common-law rule,’Which required that the claim should be’ liquidated or its amount in some way ascertained,, before interest can be allowed. This rnle, however, has been frequently modified by the courts. ‘

• : In the present case, the act creating the district allowed the commissioners to make a contract with a suit-, able ■ engineer • for a preliminary survey of the public roads- proposed ■ to be improved. The commissioners made -such a contract with ’ Christian, but failed to provide the amount of his -compensation and the time for paying him therefor. - The contract, was fully performed by the. engineer, and the fruits thereof were accepted by -the' commissioners "without objection. Thus it will be seen that the district owed Christian for making the preliminary survey the reasonable value of his services. The': parties were unable to- agree as to the value of his services.- - It was- the- duty of the engineer to file his claim in the proceedings-to-wind up the affairs of-the district; and it could not be certainly known , what price he demanded for his services -until that was -done. His claim was filed on the '20th day of January, 1923,--and the chancellor should only have allowed the claimant interest from that date. ' • -

Therefore the-decree will be modified so as to allow the claimant to recover from the district $27,4)89.10' with 6 per cent, interest from January 20-, 1923, and, as modified, the decree will be affirmed.