Corp. 1180; Zeigler v. Hopkins, 117 U. S. 683, 6 Sup. Ct. 919. "A statute delegating authority to charge property with the expense of local improvements must be strictly pursued. What the legislature has prescribed must be done, and cannot be declared to be merely directory and immaterial." Merritt v. Village of Port Chester, 71 N. Y. 309; In re Pennie, 108 N. Y. 373, 15 N. E. 611. "The duties and powers of officers of a public corporation or its agents are prescribed by statute or charter, which all persons not only may know, but are bound to know." 1 Dill. Mun. Corp. § 457. In State v. Little Rock, M. R. & T. Ry. Co., 31 Ark. 720, this court say: "Judge Dillon, in his work on Corporations (section 419), says: 'When the authority to act is solely conferred by statute, which is, in effect, the letter of attorney of the officer, all persons must, at their peril, see that the act of the agent on which they rely is within the power under which the agent acts.'" This court, in the recent case of Town of Newport v. Batesville & B. Ry. Co., 58 Ark. 275, 24 S. W. 427, quoting from Schumm v. Seymour, 24 N. J. Eq. 144, say: "It is a general and fundamental principle of law that all persons contracting with a municipal corporation must, at their peril, inquire into the power of the corporation or its officers to make the contract." That the consent of a majority of the owners, where the statute requires it, is jurisdictional, and that the failure to obtain it is fatal to all proceedings under it, and renders it null and void, see, in addition to above, Keese v. City of Denver, 10 Colo. 122, 15 Pac. 825; Jefferson Co. v. City of Mt. Vernon (Ill. Sup.) 33 N. E. 1091; Mulligan v. Smith, 59 Cal. 206; Hudson v. Jefferson Co., 28 Ark. 360; Ladd v. Spencer (Or.) 31 Pac. 474; Holland v. Mayor, etc., 11 Md. 186; Bouldin v. Mayor, etc., 15 Md. 18. In Mulligan v. Smith, supra, the court, in discussing this question of a majority petition which had been omitted in that case, say: "The presentation of the petition required by the statute was therefore essential. It was, as other courts have expressed it, a jurisdictional fact, that may not be presumed or inferred, upon which rested all the subsequent proceedings." And, further on: "A common requirement, says Mr. Cooley, is that the fmprovement shall be asked for or assented to by a majority, or some portion of those who would be taxed. The want of compliance with this is fatal in any stage of the proceedings."

This case is peculiar in the fact that there was a petition in due form, and signed by a majority of the owners, for an improvement; but the improvement designated in that petition was to have the street "graded, rolled, shaped, and graveled." The expense of this improvement, as duly reported to the council by the board, was $750; and that is about what the owners alleged and testified they supposed it would cost, and that they were willing to pay, and did really

pay, in the first assessment, collected while the work was progressing. The improvement for which they are now assessed, and asked to pay, is "stone curbing, guttering, and macadam," at an expense of $5,359.20. The first would have been paid off in one as sessment; the last, bearing interest at 10 per centum per annum, will require many years to liquidate. To hold that such a departure from the original petition can be sustained would be to strip the property owners of all possible protection, so carefully provided for them both in the constitution and the statute. The approval of such a proceeding would necessarily put a quietus on all effort at anything less than the most expensive im provement tolerated by the statute, when there would be no danger from this indefi nite expansion; for if a petition for a "graded and graveled street," at $750, can be stretched to cover a stone curb and macadam improvement, costing over $5,000, then a property owner could hardly dare ask for a dirt-road street past his house, lest he should, in the marvelous evolution of the power conferred in his simple petition, find his home burdened with the cost of a most extravagant granite pavement, erected by his more energetic and progressive neighbors. That there was a radical change made here is obvious at a glance. Dr. Stark, one of the board, who had actively participated in the original movement for the "graded and graveled" street, very frankly told the other members that he could not consistently vote for the change. He knew that was not what the owners signing the petition wanted or expected or asked for in their petition. The engineer refers to it as a change to "macadam" from "grading and graveling." Indeed, throughout it was recognized by all parties as such a change, but one which some of the board members thought desir able, and doubtless, in perfect good faith, entered upon the last improvement thinking it for the advantage of the property owners, whom they claimed to represent as their agents in doing the work. And in a certain very limited sense, where the law has been complied with, they may be regarded as their agents; but it must be borne in mind always that the terms of such quasi agency are rigidly prescribed by the law of their creation, and that law is the measure of their power, beyond which they cannot go. The petition prescribed the extent of their power, and everything beyond that was without authority of law, and void. The assent of the owners for this improvement was never obtained, no petition was ever made for it, and no power ever given to the board to make it.

Estoppel by Acquiescence.

There is much plausibility in the argument that the owners of property, having seen the improvement made, and enjoying its benefits,

without active steps to prevent it, are now estopped by their acquiescence. If the defects were mere irregularities in the exercise of a power conferred, this contention, in a proper case, might be maintained; but this rule has no application in a case like the present, where there is an absolute failure on the part of the board to secure the power to act, through the essential prerequisite,-the petition of the property owners for the improvement to be made. The court say in Starr v. Burlington, 45 Iowa, 90: "As the proceedings for the assessment upon plaintiff's property are void,-were without jurisdiction from the beginning,-he is not estopped to deny their validity on the ground that he made no objection while the improvement was in progress. As to mere irregularities, he would be estopped." In Keese v. City of Denver, 10 Colo. 122, 15 Pac. 825: "The objection goes to the power, and is jurisdictional. The principles of estoppel have no application to the facts in this case." And in same case: "The consent of the majority of property owners is jurisdic tional." In Chicago v. Wright, 32 Ill. 193: "As the objection goes to the origin of the proceedings, the parties are not estopped to object because they failed to object in time before the council, as they might have done." And in a recent case (Town of Newport v. Batesville & B. Ry. Co., 58 Ark. 275, 24 S. W. 427) this court states the rule thus: "The doctrine of equitable estoppel has no place in a case where usurped powers have been exercised by the officers." On this point, see, also, Tone v. Columbus, 39 Ohio St. 299; Motz v. Detroit, 18 Mich. 495; Zottman v. City of San Francisco, 20 Cal. 98; City of Kankakee v. Potter, 119 Ill. 324, 10 N. E. 212; Coggeshall v. City of Des Moines (Iowa) 41 N. W. 617; McLauren v. City of Grand Forks (Dak.) 43 N. W. 710; In re Sharp, 56 N. Y. 259. In Mulligan v. Smith, 59 Cal. 233, the rule is thus forcibly stated: "Nor does the failure of the defendant to resort to legal remedies against the proceedings while in fieri constitute an equitable estoppel. It was the duty of those who were authorized to exercise powers which might bind the real property of defendant to see that the provisions of the statute under which they acted were complied with." But independent of this proposition of law, which precludes the defense of equitable estoppel in this case, we think the facts, fairly considered, furnish no grounds of estoppel. The appellants were not silent. On the other hand, as soon as they learned of the illegal action of the board in entering upon the changed work, they at once filled with them their earnest remonstrance, and advised the board and the contractor that they would not be bound by it, and would resist any assessment to pay for it. It will hardly be contended that the public meeting called by the board would have any material effect to validate the proceed

ings. The statute under which the board was acting has no place in it for procuring the assent of a majority of property owners by the vote of a mass meeting. If the board was proceeding, as we have seen, without legal authority or power, an appeal to such source was a vain and futile thing to do. Indeed, most of the property owners in the supposed district, in their depositions, either deny attending the meeting, or assert they did nothing there to assent to the change in the work. The "remonstrance" put the board and all persons dealing with it upon full notice that the property owners proposed to stand squarely on their legal rights. That they did not afterwards make further objection, till the effort to impose the additional 7 per cent. assessment, was consistent with their attitude of declared opposition. They could not prevent the progress of the work upon the public street. They had made their protest in distinct and definite terms, and could only await developments; and when the time came, as indicated in their protest, they are found making very earnest and continued opposition, all along the line, to the imposition of any assessment beyond the 1 per cent., which had been, as conceded, legally made, under Ordinance 277; and its payment furnished no ground for equitable estoppel as to the 7 per cent. assessment, which all parties had express notice they would resist. The power of taxation, especially for local taxation, is the highest attribute of sovereignty. It involves the right to take the private property of the citizen without his consent, and without any other consideration than that of the public good. Such statutes must be construed with the greatest strictness, and he who would, by these proceedings, force his unwilling and perhaps more prudent neighbor into such an enterprise, must see to it that he strictly complies with all the substantial require ments of the law which he invokes. In Re Sharp, 56 N. Y. 259, the court very fairly presents the great and mischievous consequences which result from an attempt to ap ply too freely the doctrine of equitable estoppel in making public improvements, where some are made to pay and some are released, according to the attitude of each individual, and take the ground, which seems based on wise considerations of public policy, that the proceedings ought to be such that "all are barred or none." While we will not say that this rule is one of universal application, yet there is no question but that the public interests and the protection of private property rights alike imperatively demand that the ut most vigilance and caution be exercised in the use of a power so dangerous in its abuse. In this case, when the board found it impracticable to make the improvement the property owners had petitioned for, there was but one course for it to pursue,-stop the work, and go back to the beginning, and get a peti

tion, signed by the necessary majority, for this new work. Failing to do this, omitting to get the legally expressed assent of a majority in value of property owners for this new improvement, from that time forward the board and the city council were absolutely without power to act; and the ordinance to assess the 7 per cent. tax and all proceedings under it were and are null and void. The decree of the court below is accordingly reversed, and the appellees are perpetually enjoined from any further proceedings under said Ordinance No. 393, or to charge the real estate of appellants with the costs of said improvement.

BATTLE, J., disqualified. RIDDICK, J., who was not present at the submission, did not participate in the opinion and judgment.

SWAN et al. v. RAINEY. (Supreme Court of Arkansas. June 30, 1894.) TAX SALE-REDEMPTION BY REMAINDER-MEN.

Mansf. Dig. § 5809, provides that any person seised of land for life, who shall neglect to pay the taxes so long that it is sold for taxes, and does not redeem it for one year after the sale, shall forfeit his life interest therein to the persons next entitled to the land in remainder, and that the remainder-man may redeem the land. R. died intestate, leaving plaintiffs, his heirs, and defendant, his widow, surviving. In 1890, she permitted the taxes on land she occupied as her husband's homestead to be returned delinquent. Her agent purchased the land for her in his own name after the tax sale, and assigned the certificate of sale to her. Held, that the purchase of the land at the sale, and the payment of the amount she agreed to pay, constituted a payment of the tax, and that there was nothing for plaintiffs to redeem, under such statute.

Appeal from circuit court, Phillips county; Grant Green, Judge.

Action by Sarah E. Swan and others against Mary A. Rainey to recover possession of certain land. Judgment for defendant, and plaintiffs appeal. Affirmed.

Stephenson & Trieber, for appellants. Palmer & Nichols, for appellee.

BATTLE, J. Appellants brought this action to recover of appellee the possession of a certain tract of land described in their complaint. The facts upon which they base their claim are as follows: Jesse Rodgers died intestate, leaving appellants, his heirs, and appellee, his widow, surviving. At the time of his death, he was seised and possessed of the land in controversy, and occupied it as a part of his homestead. After his death, appellee, his widow, continued to occupy it as his late homestead. In 1890, she permitted it to be returned delinquent as to the taxes of 1889. She requested her agent to pay the taxes, or purchase it for her at the tax sale. It was sold for these taxes, and her agent purchased it for her in

his own name, and assigned to her the certificate of purchase. After one year from the day of sale had expired, the appellants redeemed the land. They now contend that they are entitled to the possession of the land, under section 5809 of Mansfield's Digest, which provides: "If any person who shall be seized of lands for life, or in right of his wife, shall neglect to pay the taxes thereon so long that such lands shall be sold for the payment of the taxes, and shall not within one year after such sale redeem the same according to law, such person shall forfeit to the person or persons next entitled to such land in remainder or reversion all the estate which he or she, so neglecting as aforesaid, may have in said lands, and the remainderman or reversioner may redeem the land in the same manner that other lands may be redeemed after being sold for taxes; and, moreover, the person so neglecting as aforesaid shall be liable in an action to the next entitled to the estate for all damages such person may have sustained by such neglect."

Assuming that this section is a valid stat ute, and that the widow is seised of an estate for life within the meaning of the same, has the appellee failed to pay the taxes on the land in controversy? She was in possession, enjoying the use of the same, when the taxes were levied and it was sold to pay the same. It was her duty to pay the taxes thereon for 1889. Having purchased the land at a sale thereof on account of the nonpayment of such taxes, and paid the amount she agreed to pay, her purchase was void, and operated as a payment of the taxes. Rodman v. Sanders, 44 Ark. 504; Gwynn v. McCauley, 32 Ark. 97; Sanders v. Ellis, 42 Ark. 215; Staley v. Leomans, 53 Ark. 428, 14 S. W. 646. The sale being void, and the taxes paid, there was nothing to redeem, and consequently no redemption was required. Judgment affirmed.

BLACKBURN et al. v. HAYES et al. (Supreme Court of Arkansas. June 30, 1894.) LOAN BY BROKER AGREEMENT TO PAY COMMISSIONS COMPUTATION OF INTEREST-USURY. Defendant commission merchants agreed to advance money to plaintiffs to raise cotton, plaintiffs agreeing to repay with interest at 10 per cent. per annum, and to ship defendants at least 200 bales of cotton, to be sold by them on a commission of $1.25 a bale, or in default thereof to pay $1.25 for each bale they failed to ship. They shipped only 56 bales, and failed to pay the forfeit. When the contract was made, $1.25 was the usual charge of brokers for selling a bale of cotton. Held, that the $1.25 plaintiffs were to pay for each baie they failed to ship was liquidated damages for breach of contract, and could not be computed as interest on the loan for the purpose of showing

usury.

Appeal from Desha chancery court; James F. Robinson, Chancellor.

Action by Fannie J. Blackburn and others against J. B. Hayes, trustee, and others,

to enjoin said Hayes from selling certain land. Judgment for defendants, and plaintiffs appeal. Affirmed.

Pindall & Rogers, for appellants. Murphy & Gates, for appellees.

BATTLE, J. The defendants, John T. Hardie & Co., being factors and commission merchants, doing business in the city of New Orleans, in the state of Lousiana, entered into an agreement with the plaintiffs, who were cotton planters in the state of Arkansas, by which they undertook to advance to plaintiffs large sums of money for the purpose of aiding them in raising cotton, and plaintiffs agreed to repay the same with interest thereon at the rate of 10 per centum per annum, and to ship to the defendants, John T. Hardie & Co., at least 200 bales of cotton, to be sold by them, or, in default thereof, to pay $1.25 per bale on such number as they should fail to ship according to their contract. To secure the performance of their promises they executed a deed of trust, in which J. B. Hayes was named as trustee. They failed to perform their contract. Of the 200 bales of cotton, they shipped only 56, and failed to repay the money advanced to them. After the lapse of several years, the trustee undertook to sell the property conveyed by the deed, in pursuance of the authority thereby vested in him, for the purpose of paying the amount secured and still unpaid, and plaintiffs instituted an action in equity against the trustee and Hardie & Co. to enjoin the sale. The ground upon which they sought to prevent the sale was usury. They insisted that the agreement to ship cotton was a device to avoid the penalty of usury, and that the $1.25 was really intended to be paid as interest. The chancery court, after hearing the evidence adduced by both parties, held otherwise, corrected the account of Hardie & Co. against the plaintiff's for advances made, and rendered a decree directing the foreclosure of the deed of trust; and plaintiffs appealed.

To prove that the contract of Hardie & Co. and appellants was usurious, it must be shown that it was for a greater rate of interest than 10 per cent. per annum. Appellants contend that this was shown in the deed of trust, by the stipulation to ship 200 bales of cotton, or, in default thereof, to pay $1.25 on every bale which was not shipped according to the contract. To sustain this contention, it was incumbent on them to show that the $1.25 was intended to be a compensation for the use of the money advanced or loaned to them by Hardie & Co.

The evidence shows that Hardie & Co. were commission merchants in the city of New Orleans, engaged in the business of selling cotton on commission. They were ergaged in a legitimate business, and had 27s.w.no.3-16

the right to loan their money, and at the same time to stipulate with the parties to whom it was loaned for the incidental advantages of acting as commission merchants for the sale of the cotton which the borrower was to be enabled to raise by the use of the money. Such contracts being lawful, the burden of proof was upon the appellants to show that the contract as to the 200 bales of cotton was intended as a device to cover up usury. But they failed to do so.

The evidence shows that the appellants were cotton planters, engaged in making cotton, and that the money advanced to them was loaned for the purpose of aiding them in this business. At the time the contract to ship cotton was entered into, $1.25 per bale was the commission usually charged and received by commission merchants for selling cotton in the city of New Orleans, where the cotton was to be sold, and Hardie & Co. reasonably expected the cotton to be shipped to them. Under the circumstances, the contract was a valid agreement. It was in effect an agreement upon the part of appellants to ship the 200 bales in consideration of the undertaking of Hardie & Co. to sell the same, and in the sale thereof to use due care and skill, and that Hardie & Co. should be entitled to receive and recover the $1.25 per bale, in the event appellants should fail to perform their contract, as liquidated damages sustained by them on account of the breach, and not as interest for the loan of the money. Cockle v. Flack, 93 U. S. 344; Norwood v. Faulkner. 22 S. C. 367; Matthews v. Coe, 70 N. Y. 239; Woolsey v. Jones, 84 Ala. 88, 4 South. 190; Harmon v. Lehman (Ala.) 5 South. 197: Dozier v. Mitchell, 65 Ala. 511. Decree affirmed

1. In replevin for certain logs, it appeared that the land from which they were cut by defendants was known as plaintiff's land, and had been claimed by it for five years, and that plaintiff had been accustomed to cut timber therefrom. Defendants claimed no title to the land. Plaintiff's agent found the logs piled on the land, and, while he was branding them, defendants came along, and, instead of objecting, assisted plaintiff to raft them to a town, where they seized them during the agent's absence. Held, that plaintiff should recover.

2. An objection to instructions in gross cannot be considered, if any one is correct. Appeal from circuit court, Clay county; James E. Riddick, Judge.

Action by the Oxley Stave Company against William Staggs and another. From a judgment for defendants, plaintiff appeals. Reversed.

This was an action for replevin for 68 gum logs. The suit was brought by appellant, filing an affidavit in proper form, before a justice of the peace. The case was tried, and appealed to the circuit court, and a verdict and judgment rendered there, from which this appeal is prosecuted. The appellees filed no written pleading, in either the justice or the circuit court, setting up title to the logs. The proof on the part of the appellant was substantially as follows: The agent of the appellant, the Oxley Stave Company, whose business it was to look after and watch their timber land, came upon the logs in controversy, piled on the bank of Black river, in Butler county, Mo. He took possession of the logs, as the property of the Oxley Stave Company, and put their brand upon them. At the time he took possession of them, there was no brand, or other mark of ownership, on them. He began rolling them into the river, to raft them, when the defendants came, and commenced to help. They all began rafting, and all went down the river on the raft together. When they reached the mill, near Corning, the defendants went into town. The appellant's agent tied up the raft, and when the defendants came back, and found the raft tied up, they took off appellant's rope, and tied the raft with their own rope, and told appellant's agent to keep off the raft, threatening to throw him into the river, whereupon the agent sued out a writ of replevin for the Oxley Stave Company. The logs were cut by the defendants, and hauled to the river. They were cut from a tract of land, wild, unoccupied, and unimproved. A witness, in the course of the examination, was asked if he knew what lands the logs were cut from, and who owned the logs, and he answered: "The logs were cut from the land I heretofore described, in sections 22 and 34, and the logs belonged to the Oxley Stave Company." The answer, as to the ownership, was objected to, and, upon motion of appellees, was excluded from the jury, over the objection of appellant. Another witness testified "that he knew the logs in controversy were cut on lands known as the Oxley Stave Company's lands; that the lands from which the logs were cut had been claimed by the Oxley Stave Company, and had been understood to belong to that company, for four or five years. He was present when the lands were run off by the surveyor. The lands, for several years, had been known as the Oxley Stave Company's lands. The Oxley Stave Company had been making staves and getting timber, from time to time, on said lands, for some four or five years." This witness knew that the logs were not cut from defendants' land. The court, over the objection of the appellant, excluded the testimony of the witness that the land was known as the Oxley Stave Company's land, and the statement that the Oxley Stave Company have been claiming the lands from

which the logs were taken, and have been making staves and getting timber on said lands, for four or five years. Other witnesses made similar statements, which were excluded from the jury over appellant's objection. It was in evidence that one of the defendants said: "We cut the logs on land belonging to a firm in Illinois." (All but 12 or 15.) "The Oxley Stave Company have claimed to own the land for about six years." The appellees introduced no proof. There was other testimony, but it is unnecessary to set it out in order to understand the decision of the court.

D. Hopson and J. Perry Johnson, for ap pellant. G. B. Oliver, for appellees.

WOOD, J. (after stating the facts). It was error to exclude the testimony of the witnesses to the effect "that appellants had been mak ing staves and getting timber off the lands from which the logs in controversy were cut, and that they had claimed to own the same for the last five years, and that it was known as the Oxley Stave Company's land." The defendants stand mute, and put the appellant to the test of its right to recover the possession upon the strength of its own title. They set up no affirmative title in themselves. Under this state of case, it devolves upon the appellant to show only a prima facie right to the possession. Has it done this? The proof shows that one of the appellees admitted that most of the logs in controversy were not cut on lands belonging to them, and that they knew that the lands from which these logs were taken had been claimed by the Oxley Stave Company for six years.

With this knowledge they permit the agent of the appellant company to take charge of the logs in controversy, as the property of the company, put the brand of the company upon them, and, without objection, to roll them into the river, and to raft them to Corning. On the contrary, instead of objecting, assisting one who had peacefully and lawfully taken possession of the property under a claim of ownership to raft it down the river. Then, in the ab sence of the one who had thus taken possession, but was still evidencing his claim of ownership, they proceed, forcibly, to take the possession, and threaten even a breach of the peace, and personal violence, in its retention. The conduct of appellees does not present them in any favorable attitude before this court. The testimony of Barnett tends to show that they are self-confessed trespassers upon some one's lands,-one of them said the lands of a firm in Illinois, but that "the Oxley Stave Company had claimed them for six years." It was the duty of the ap pellees, when the agent of appellant first took charge of these logs, and branded them, and began to roll them in the river, to speak out, and assert their right, then, if they had any. This would have been the ordinary and nat