263 Williamson, Cooper v. (Ky.). ..1070 Wilson v. Chisholm (Ark.)

939 Wilson, Moore v. (Ky.).

695 Wilson v. Overturf (Ark.).

50 Wilson v. State (Tex. Cr. App.).

.1016 Windham v. State (Tex. Cr. App.)

[Cases in which rehearings have been denied, without the rendition of a written opinion, since the publication of the original opinions in previous volumes of this Reporter.]

TEXAS.

Gulf, C. & S. F. R. Co. v. Anderson, Clayton & Co., 246 S. W. 1031.
Haverbekken v. Coryell County, 247 S. W. 1086.

McMillan v. State, 244 S. W. 512.

See End of Index for Tables of Southwestern Cases in State Reports
t

THE

SOUTHWESTERN REPORTER

VOLUME 248

MCILROY v. BAIRD et al. (No. 181.)

6 of Washington county, created by special act of the General Assembly of 1919 (2 Road Acts of 1919, p. 2306) and abolished by

(Supreme Court of Arkansas. Feb. 19, 1923.) special act of the General Assembly of 1921 Highways 90-Appeal from disallowance of (Sp. Acts 1921, p. 525), Appellees moved to claim against district abolished by statute dismiss the appeal on the ground that it was held subject to dismissal for not being prose-not perfected within the time prescribed in cuted within time limited. a section of the repealing act cited above.

Where, in a suit attacking the validity of The history of the litigation is as follows: a road improvement district, created by Road Appellees, who were certain owners of real Laws 1919, vol. 2, p. 2306, and abolished by Sp. Laws 1921, p. 525, wherein before the re-ed suit in the chancery court of Washington property in the district mentioned, commencpealing act went into effect the complaint was amended so as to set it forth, and the suit was county in June, 1920, attacking the validity prosecuted to final decree, and a claim against of the statute creating the district and the the district disallowed by the chancery court in part, and the claimant appealed, but without filing his transcript within the time required by section 3 of the repealing act as to appeals in suits on claims rejected by commissioners, it is too late, after all the parties treated the claim as if it had been rejected by commissioners, to raise a question that it had not been passed on by them, and for that reason the limitation did not apply, and neither is it material that the case was instituted before the repealing act went into effect, as the final decree was rendered under it after it became effective, nor that its constitutionality is attacked, as the attack arises entirely in prosecution of the claim, and therefore comes squarely within the statute, and does not render it any the less conclusive as to the time for the appeal, and the statute is valid as to that part at least, and the appeal must therefore be dismissed for not being prosecuted within the time specified.

assessment of benefits thereunder. No decree was rendered in that action until after the repealing statute became effective, 90 days after the adjournment of the General Assembly of 1921. After the passage and approval of that statute, but before it went into effect, appellees amended their complaint in the original action so as to set forth this statute, and the action proceeded to final decree after the repealing statute went into effect. The court appointed a master to investigate the claims, and specified a time within which the claims might be presented. The master made his report, and appellant filed exceptions to the report, and the court rendered a final decree, allowing a portion of appellant's claim, but disallowing the remainder. This is the decree from which appellant seeks to prosecute his appeal, but his transcript was not filed within the time specified

Appeal from Washington Chancery Court; in the repealing statute for the prosecution

B. F. McMahan, Chancellor.

Suit by A. H. Baird and others, attacking the validity of the law creating Road Improvement District No. 6 of Washington County, wherein a claim against the district by J. H. McIlroy was disallowed in part, and he appeals. Appeal dismissed.

of such appeals.

The section of the repealing statute cited above reads as follows:

"Sec. 3. If the commissioners reject any claim, in whole or in part, presented to them, the holder thereof shall be barred, unless he shall, within ninety days after notice of the re

Jas. B. McDonough, of Ft. Smith, for ap- jection thereof, proceed to enforce the same pellant.

W. N. Ivie, of Rogers, and John Mayes and J. V. Walker, both of Fayetteville, for appellees.

by suit. All suits shall be deemed matters of public interest, and shall be advanced and heard at the earliest possible moment; and all appeals therein must be taken and perfected within thirty days."

PER CURIAM. This is an appeal from a This court has in numerous decisions held decree of the chancery court of Washington to be valid statutes similar to this limiting county disallowing a portion of appellant's appeals in certain cases to a time as short claim against Road Improvement District No. as that mentioned in this statute. Crandell For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 248 S.W.-1

2. Highways 90-Election to approve act creating district held to be premature and void.

v. Harrison, 105 Ark. 110, 150 S. W. 560;erendum, and providing that, except as to laws Miller v. White, 108 Ark. 253, 157 S. W. 934; for the immediate preservation of the public Norton v. Road Imp. Dist. No. 1 of Jefferson peace, health, or safety, the referendum may County, 143 Ark. 110, 219 S. W. 776; Ferrell be demanded on a law within 90 days from the final adjournment of the General Assembly, at v. Massie, 150 Ark. 156, 233 S. W. 1083; Da- which it was passed; no act without an emervis v. Cook (Ark.) 245 S. W. 11. gency clause becomes operative until 90 days Appellant insists that this case does not after adjournment of the General Assembly, the fall within the terms of the statute for sev-voters, until the expiration of such time, haveral reasons: First, because his claim was ing the power to refer the act to the people at never rejected by the commissioners, but the next general election. was passed on by the court in the first instance. The commissioners of the district were parties to this suit, and appellant presented his claim to the court, or, rather, to the master, in accordance with the instructions of the court, all parties treating the claim as being in the same attitude before the court for adjudication as if it had been rejected by the commissioners, and it is too late now, after the adjudication has been made by the court, to raise the question that the commissioners had not previously passed upon the claim and rejected it.

Where an election under Act Feb. 20, 1920 (Ex. Sess.) No. 240, creating the DermottCollins Road Improvement District, which was not to become effective until approved at a special election called pursuant to section 36, was held before the act beame operative at the expiration of 90 days from the adjournment of the General Assembly, pursuant to Const. art. 5, § 1, as amended by Amend. No. 7, it was premature and void, because at that time the act itself had not become a law.

3. Evidence 45-Supreme Court cannot take judicial knowledge of time when elections are held under special acts.

The next reason given why the case does not fall within the provisions of the statute is that it was instituted before the repealing statute went into effect. The an- The Supreme Court cannot take judicial swer to that contention is that the suit pro-knowledge of the time when elections are held gressed without final decree until after the under special acts of the legislation. repealing statute became effective and the

decree was rendered under that statute.
Again, it is urged that the case does not
fall within the statute for the reason that'
there is an attack made upon the constitu-
tionality of the statute, and that the appeal
ought to stand as to that part of the decree
under the rule announced in Davis v. Cook,
supra. Conceding it to be true that there is
involved an attack upon the constitutionality
of the statute, the attack arises entirely in
the prosecution of the claim which appellant
had filed, and therefore it comes squarely
within the statute. The fact that there is a
challenge to the constitutionality of the stat-
ute does not render it any the less conclusive
as to the time for prosecuting the appeal.
We have held that that part, at least, of the
statute is valid under the rule announced in
the cases herein before cited.

It follows from what has been said that the appeal has not been prosecuted within the time specified by the statute, and the appeal must therefore be dismissed. It is so ordered.

GASTER V. DERMOTT-COLLINS ROAD
IMPROVEMENT DIST. et al. (No. 100.)
(Supreme Court of Arkansas. Jan. 22, 1923.)
1. Statutes 253-Act without emergency
clause held not operative until 90 days after
adjournment of General Assembly.

Under Const. art. 5, § 1, as amended by
Amend. No. 7, relating to the initiative and ref-

4. Statutes

352-Legislature held without power to deprive people of right of referendum.

emer

It is not within the power of the Legislature to deprive the people of the right under the Constitution to have laws referred to them, and hence Act Feb. 20, 1920 (Ex. Sess.) No. 240, creating the Dermott-Collins Road Improvement District, being without an geney clause and subject of referendum to voters of the whole state, it cannot be held, without rendering the whole act unconstitutional, that the special election by voters of the district for the adoption or rejection of the act pursuant to sections 36 and 37, is equivalent to a referendum by act of the Legislature pursuant to Crawford & Moses' Dig. § 9767. 5. Highways148-Section of act creating district held not available in defense to suit to restrain collection of assessments, selling bonds, etc., where act has not become effective by election.

Act Feb. 20, 1920 (Ex. Sess.) No. 240, creating the Dermott-Collins Road Improvement District not having become effective by a valid election thereunder, section 11 thereof providing when a party may not complain of assessments thereunder and suits attacking their validity shall not be brought, is not available in defense to a suit to restrain the collection of assessments, selling bonds, and construction of improvements thereunder.

McCulloch, C. J., and Smith, J., dissenting.

Appeal from Chicot Chancery Court; E. P. Toney, Special Chancellor.

Suit by Henry Gaster against the Dermott-Collins Road Improvement District and For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes