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Hill v. State, 4 Sneed, 443; State v. Shelby- , caused by drains and ditches and embankville, 4 Sneed, 177.

ments on the lands of others over which the So while it must be conceded that the company had no control. Brimberry v. Samunicipality has full power over its streets vannah, etc., R. Co., 78 Ga. 641, 3 S. E. 274. and can change the grades thereof, and like. We think the rule to be deduced from the wise has full power to regulate the manner foregoing cases is that no one is civilly anin which railroads shall cross these streets, swerable for a nuisance, even though that and can require crossings to be altered and nuisance be immediately promoted by his reconstructed, nevertheless none of these own property, if this result is occasioned by considerations are determinative here. the act of others, over whom he has no con

[4] Although the town of Clinton might trol, so affecting his property as to make it have required the Southern Railway Com-, an agency contributing to the nuisance. In pany to change the level of this crossing other words, the proximate cause of every over Jacksboro road or street, it has not nuisance must be ascertained in fixing liaseen proper to attempt any such thing. The bility therefor, and when one's property is, municipality has filled up the street under by the act of independent third parties, made the trestle, but so far as this record shows, the instrumentality of a nuisance, such act has been content that the trestle remain as of such parties is the proximate cause, and it was before the level of the road was the innocent owner of the property is not changed. The railway company has done responsible. nothing whatever to its trestle, and it was The same principle would apply to a crimwithout power to interfere with the action inal prosecution of a nuisance. One who so of the municipality in raising the level of uses his property as that it becomes a nui. this road.

sance to the public is subject to indictment Under these circumstances, we are of opin- and conviction. If his use thereof injures ion that the railway company is not liable to an individual, he is subject to an action for indictment for obstructing the public high- damages. In neither case is the defendant way. We think the obstruction was caused responsible for a nuisance not proximately by the act of the town of Clinton and the resulting from some act or omission of his town of Clinton is liable to indictment if own with respect to his property. any one is.

In a South Carolina case, the defendant Ordinarily one is not civilly liable for a was indicted for a nuisance occasioned by nuisance caused or promoted by others over an overflow from the head of a millpond whom he has no control; nor is one bound which he maintained. The proof showed deto go to expense or litigation to abate such fendant's dam had been erected in the a nuisance.

stream for many years without causing an An owner of land upon a declivity who overflow or damage to the neighborhood. has no control of the property lying above his Landowners undertook to deepen and alter own, nor over the people who occupy it, is the channel of the stream above the millnot liable to the owner of the property next pond for drainage purposes, and there was below his own for damages, arising from evidence that, as a result of this work, large offensive matter thrown, without any fault quantities of sand and débris came down and of his, upon the upper lot and flowing nat- accumulated at the head of the pond, and urally across his premises onto the lot be that the obstruction thus formed occasioned low. Brown v. McAllister, 39 Cal. 573. the overflow. The Supreme Court of Soutn

Where a turnpike company built a drain Carolina reversed a judgment of conviction, into which an owner of land through which and, among other things, said: it flows, without the knowledge or consent

"While it is true that the defendant would be of the company, turned foul matter, causing liable if his obstruction of the creek, by his pond a nuisance and damage to another upon and dam,, was in itself the cause of the injuwhose premises the drainage was cast, under ries complained of, yet, if the consequences are

to be attributed to the acts of others, so affecting these circumstances the landowner contrib- his property that it becomes a public nuisance, uting the foul matter to the drain was held it would not appear consistent with justice or to be alone liable for the resulting damage. propriety that he should be held to responsi

bility. Magee v. Penn., etc., R. Co., 13 Pa. Super.

"The mere erection of the mill and dam on his Ct. 187.

own land was no nuisance; and if results, Likewise it was held that where a railroad though injurious, yet not proximate and direct, company bad constructed a ditch along its followed, because set in motion by the acts of

others, either in cutting the ditch, which by the track through which polluted water flowed

accumulation of sand choked the channel and into a pond on adjacent premises, depositing raised it higher than the adjacent banks, thus garbage and filth on said premises, and cre- forcing the water over the edges of the ditch or ating a nuisance, the railroad company was banks, and collecting it in pools or boles. of

from the increased cultivation in the neighbornot liable to the owner of the premises for bood, it would seem that the consequences are resulting damages where said pond was the to be referred to an agency operating on the natural outlet of the water originally flow. property of the defendant, for which he should ing through the ditch, and the increase of They were not proximate or direct, in the legal

not be liable, because not employed by him. flow after the building of the railroad and sense in which those terms are understood. He ditch and the pollution of the water was must be held accountable for the unlawful effects

which naturally or directly proceeded from his to recover, on behalf of a drainage district, an
acts. State v. Rankin, 3 $. C. 438, 16 Am. attorney's fee illegally paid by the board.
Rep. 737.

[Ed. Note.-For other cases, see Drains, Dec.
So in this case, we think that the act of Dig. $ 20.*]
the town of Clinton in raising the level of 5. CONSTITUTIONAL LAW (8 74*) – JUDICIAL

POWERS-ENCROACHMENT ON ÉXECUTIVE. this street was the proximate cause of the

Under the special act creating the St. Franobstruction. Until the railway company is cis drainage district (Acts 1905, p. 444), audirected by the municipal authorities to re- thorizing the district board to elect a district construct its trestle, the maintenance there- engineer for the term of two years, the courts, of at its present level is not unlawful. The board or the

engineer, cannot enjoin the board

while they may prevent illegal action by the nuisance has resulted from the act of the from employing a certain engineer who had been municipality, and plaintiff in error is not re-elected, since that would be usurpation by the sponsible for the same.

courts of the power to oust such engineer from

his place. The evidence preponderates against the

[Ed. Note.-For other cases, see Constitutionverdict and judgment below, and the case , al Law, Cent. Dig. $ 124; Dec. Dig. $ 74.*] will be reversed.

Appeal from Greene Chancery Court; Chas. D. Frierson, Chancellor.

Suit by R. W. Meriwether and others SEITZ et al. v. MERIWETHER et al.

against George W. Seitz and others. Decree (No. 144.)

for complainants, and defendants appeal. (Supreme Court of Arkansas. Oct. 5, 1914.)

Appeal dismissed as to part of the decree, 1. APPEAL AND ERROR ($ 80*) FINAL DE- and the rest of the decree affirmed in part CREE-ACCOUNTING.

In a suit by taxpayers of a drainage dis- and reversed in part and remanded, with trict, a decree requiring the attorney of the directions. district to repay a fee received by him in excess of the amount allowed by statute, permanently

R. H. Dudley, of Piggott, and R. E. L.

M. enjoining the board from employing the one who Johnson, of Paragould, for appellants. had been acting as engineer of the district, and P. Huddleston and Block & Kirsch, all of referring to a special master the accounts be- Paragould, for appellees. tween the district and the contractors, with instructions to report in accordance with the directions of the court, is final and appealable as McCULLOCH, C. J. The St. Francis drainto the attorney and the engineer, but not as to age district, covering certain territory in the contractors, the rule being that a decree Clay and Greene counties, Ark., was creatwhich disposes of the matters in issue between the parties and gives all the consequential di- ed by a special statute enacted by the Generrections necessary to carry it into execution, is al Assembly of 1905, for the purpose of confinal, but if such directions be not given, though structing drainage ditches and building the decree may adjudicate the right or interest levees in the territory described. The act in controversy, it is not final.

[Ed. Note.-For other cases, see Appeal and named five directors, and provided for the Error, Cent. Dig. $$_429, 432. 433, 450, 456, appointment of their successors by the Gov. 457, 494-509; Dec. Dig. $ 80.*]

ernor, and constituted the board a body cor2. Drains ($18*) — DISTRICTS — ATTORNEYS'porate with authority to cause the improveFEES-STATUTORY PROVISIONS.

ment named above to be made and to do the Under section 21 of the special act organ: other things necessary to carry forward the izing the St. Francis drainage district (Acts 1905, p. 444), authorizing the employment of work. A section of the statute with referan attorney to enforce the payment of delin-ence to the employment of an attorney reads quent taxes, and also to bring or defend any suits, but providing that in all cases the fees of

as follows: such attorney should not exceed in any one year

"The board of directors or the president therea specified sum, the limitation of the fees ap- of, may engage the services of an attorney for plies to the collection of taxes as well as to the the purpose of enforcing the payment of delinbringing of suits.

quent taxes, and an attorney may also be em(Ed. Note.-For other cases, see Drains,

ployed by the board for the purpose of bringing Cent. Dig. $$ 11, 13; Dec. Dig. $ 18.*]

or defending any suit which may be instituted

by or against the drainage district, but in all 3. Drains (8 19*) – DISTRICTS — ATTORNEY's cases of fees to be paid such attorney, shall be FEES—RECOVERY OF Excess.

agreed upon in writing at the time of employThe attorney is bound to know the limita- ment, and shall not exceed in any one year the tions on the authority of the board, and cannot sum of two hundred and fifty dollars." Section, defeat a suit to recover the excess fees paid to 21, Act 172, Session of 1905, p. 444. him on the ground that the payments were voluntary, even though they were reasonable and

The statute further provided that the paid in good faith on disinterested legal ad-board should effect an organization "by electvice.

ing a president, a secretary and a treasurer, [Ed. Note.--For other cases, see Drains, Cent. who shall also be collector, and an engineer, Dig. $$ 11, 13; Dec. Dig. & 19.*]

and prescribe the duties and fix the salaries 4. DRAINS ($ 20*) – DISTRICT TAXPAYERS Suits.

of said officers, not to exceed the amounts The remedy given by Const. 1874, art. 16, fixed by law” (section 4) and further pro$ 13, authorizing any citizen of any county, city, vided that said officers should be elected for or town to institute a suit to protect the in; two years at the first annual meeting of the habitants against the enforcement of illegal exactions, will be extended to the taxpayers in board, and biennially thereafter at regular drainage districts, and they will be permitted meetings. The board was duly organized,

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and W. E. Spence, an attorney at law, in against the attorney, Mr. Spence, for the Clay county, was employed as the attorney $500 paid to him; and against the engineer, for the district, and J. D. Mitchell was elect- Mr. Mitchell, for sums paid to him in excess ed as engineer. The board entered into two of the amounts paid to his assistants. The written contracts with A. W. Wills & Sons, court thereupon rendered a decree against one for the cutting of a ditch, and the other | Spence, directing him to pay the treasurer for the building of the levee as authorized of the district said sum of $500, and making in the statute, and the work was proceeded perpetual the temporary restraining order with pursuant to these contracts. Dissatis- preventing the board from employing Mitchfaction subsequently arose on the part of two ell as engineer. There was a reference to a members of the board, and also on the part special master of the accounts between the of many property owners and taxpayers in district and the contractors, with instruc. the district, concerning the operations of the tions to report in accordance with the direc

district, the performance of the contract by tions of the court. Both sides saved excepthe contractors, the method of paying the tions and prayed an appeal to this court, but contractors, and the amounts so paid, and neither of the appeals was prosecuted withvarious other things which became the sub- in the time prescribed by law, and subseject-matter of acute controversy.

These quently the defendants obtained an appeal differences resulted in the present action, from the clerk of this court. We have not instituted by two dissenting directors and before us the report of the master and the several taxpayers against the other members final decree of the court thereon, if such de of the board, the contractors, the engineer, cree has been rendered. and the attorney.

[1] The first question which arises is In the complaint it is alleged that the whether the decree rendered by the court, or contractors were making overcharges under any part of it, is final and appealable. It the contract, and were being paid in excess will be noticed from the above recital that of the contract price; that the stipulated the court did not award any amount for or percentage of estimates were not being re against the contractors. The court merely served in accordance with the terms of the made certain findings and referred the accontract, and also that there are various oth counts to a special master for report. er irregularities and inaccuracies in the ac

In the early case of Crittenden, Ex parte, count with the contractors. It is also alleg. 10 Ark. 334, the court laid down the rule

that: ed that the engineer had fraudulently approved the estimates of the contractors, and had issue between the parties and gives all the con

“A decree, which disposes of the matters in also been guilty of fraud in padding his ac- sequential directions necessary to carry it into counts for salaries of the assistant engineers execution, is a final decree; but if such consein his employment. The complaint alleges quential directions be not given, though the defurther that the attorney, Mr. Spence, had in controversy, it is not final."

cree may adjudicate as to the interest or right been allowed $500 as fees in excess of the

The test announced in that case has never amount authorized by statute. The prayer been departed from by this court, so far as of the complaint is that the board of direc-we know, but has been reiterated in numertors be restrained from paying the contrac-ous later cases. Haynie v. McLemore, 12 tors any further sums of money on account Ark. 397; Shegogg v. Perkins, 34 Ark. 117; of the levee; that an accounting be had as Davie v. Davie, 52 Ark. 224, 12 S. W. 558, 20 to the amount of work done by the contrac- Am. St. Rep. 170; Cohn v. Huffman, 52 Ark. tors and the amount paid by them in accord- | 436, 12 S. W. 1071; Heffner v. Day, 54 Ark. ance with the contract, and an accounting be 79, 14 S. W. 1090; Batesville v. Ball, 100 had of the moneys paid to Mitchell, the en- Ark. 496, 140 S. W. 712, Ann. Cas. 1913C, gineer; that Spence be compelled to refund | 1317. the excessive sum of $500 paid to him; that In Davie v. Davie, supra, Chief Justice the board be restrained from further employ- Cockrill, speaking for the court, said that “a ing Mitchell as the engineer; and that judg- judgment in equity is understood ordinarily ment be rendered in favor of the district for to be interlocutory when inquiry as to matter whatever sums are found to be due from the of law or fact is directed preparatory to a contractors, from Mitchell, and from Spence. final adjudication of the rights of the par

All the defendants answered, in substance ties," but that, quoting from the Supreme denying the allegations of the complaint with Court of the United States in Beebe v. Rusrespect to the irregularities and errors in sell, 19 How. 283 [15 L. Ed. 668), “where the the account of the contractors or the allow-decree decides the rights to the property in ances to them, and as to the misconduct of contest and directs it to be delivered up, or the engineer, and the unlawful payment of directs it to be sold, and the complainant is excessive fees to the attorney. The case was entitled to have it carried into immediate ex. heard by the chancellor upon the pleadings, ecution, the decree must be regarded as final the documentary evidence, and the deposi- to that extent, although it may be necessary tions of witnesses, and there was a finding for a further decree to adjust the account beby the chancellor in favor of the contractors tween the parties." In the same case it was on some items and against them on others; I also said that an appeal will be allowed “where a distinct and severable branch of it was unjustifiable, and the fact that it was the cause is finally determined, although the made in good faith does not afford any reasuit is not ended.”

son why the attorney should not be ordered Applying those tests, it is clear that the to pay it back to the district. The question appeal of the contractors is premature and of recovery of money voluntarily paid does must be dismissed, but that the decree not apply to officers and servants of a pubagainst defendant Spence and also the decree lic agency like a municipal corporation or against defendant Mitchell were final and improvement district. The officers and the appealable; the decree against the former employés of such public agencies are combeing for a definite sum of money and en- pelled to take notice of the limitations upon forceable, and against the latter enjoining the authority of the governing bodies; and him from serving any further as engineer when they receive fees in excess of the of the board and enjoining the board from amount authorized by statute, they cannot employing him. The further decree against defend a suit for the recovery thereof on Mitchell concerning his accounts with the the ground that the payment was voluntary. board, and referring the same to a master McConnell v. Brick Co., 70 Ark. 568, 69 S. for an accounting, was not final, and cannot W. 559. be reviewed under the record now before us. [4] It is urged with much earnestness that

[2] The appeal of Spence calls for a con- the court could not assume jurisdiction in a struction of the statute and the determina- suit of this kind at the instance of the taxtion of the question whether or not he was payers or dissenting directors, but we are entitled to collect the additional sum of $500 of the opinion from the authority of the cases for his services as attorney of the board. He cited in appellees' brief that the jurisdiction was first employed at a salary of $250 per of a court of equity is complete to grant reannum as the attorney for the board to rep lief under the circumstances set forth in the resent the board generally and institute and pleadings and established by the proof in defend all necessary suits. Subsequently he this case. While there are no specific charges was formally employed to institute suits for of fraud against the directors themselves, the collection of taxes, and was allowed the it is alleged that they made the excessive additional sum of $500. The contention is payment to Mr. Spence and have refused that the section of the statute quoted above to bring suit to recover the sum, and this, contemplates the employment of two attor- we think, is sufficient to give the court jurisneys, or rather two distinct employments of diction to entertain the complaint of the an attorney to act in separate capacities, and property owners in the district. that the limitation prescribed by the statute The controlling principle is stated by Chief does not apply to both. We are of the opin- Justice English in the case of Town of Jackion, however, from a careful perusal of the sonport v. Watson, 33 Ark. 704, as follows: statute, that this construction is unsound, "A court of equity may, at the suit of properand that the contention cannot be sustained. ty holders or taxable inhabitants of a municIt is manifest that the Legislature intended its officers from 'making an unauthorized appro

ipal corporation, restrain the corporation and to give authority to the board to engage the priation of the corporate funds. This is so beservices of one or more attorneys for the cause the corporation holds its money for the purpose of bringing or defending suits and corporators, the inhabitants of the town or city, for the purpose of enforcing the payment of es, and a misappropriation of these funds is

to be expended for legitimate corporate purposdelinquent taxes; but the whole amount to an injury to the taxpayer, for which no other be paid for attorney's fees was limited to remedy is so effectual or appropriate as an inthe sum of $250 per annum.

The board has junction." no authority to expend more than that sum

We held in Griffin v. Rhoton, 85 Ark. 89, during any one year, whether one or more 107 S. W. 380, that a chancery court would attorneys are employed for all the purposes entertain jurisdiction upon a complaint of named in the statute. The payment to Mr. taxpayers to require a public officer to pay Spence was therefore unauthorized, and the back fees illegally collected. court was correct in ordering him to pay the

It is true there is a provision in the Conamount back to the treasurer of the board. stitution to the effect that "any citizen of any

[3] The chancellor found that the fee county, city or town may institute suit in charged was very reasonable, when measur- behalf of himself and all others interested, ed by the standard of fees generally charged to protect the inhabitants thereof against the by attorneys for similar services, and we are enforcement of. any illegal exactions whatthoroughly satisfied that that finding is cor- ever” (section 13, art. 16, Constitution of rect. There is no evidence of fraud or bad 1874), and it has been held by this court that faith in making the charge, for it appears the provision gives authority to a taxpayer that the question of construction of the stat- to prevent the illegal disbursement of moneys ute was submitted to a disinterested attor- by counties and municipalities. That provi. ney of high standing, who advised the board sion of the Constitution does not include imthat they were authorized under the stat-provement districts, but the principle is the üte to pay this additional sum to Mr. Spence. same, and it is the duty of the court of equiBut we are quite clear in our view that the ty to mold a remedy for taxpayers whose in.

KEEPING.

provement districts. Our conclusion is that be to the best interest of the estate, and a loss the suit was properly brought to require Mr. sustained by him in operating it was due more Spence to refund the money illegally paid to it difficult for him to dispose of the product

to bad labor conditions and dull times, making him and to reach all other matters set forth to advantage, than to any fault of his, and no in the complaint which involved the collec- protest was made by creditors to the operation tion and distribution of funds of the district. of the mine until it was discontinued, the court In all cases where the district itself had the properly refused to charge the loss to the re

ceiver. right to maintain an action to prevent the [Ed. _Note.-For other cases, see Receivers, misappropriation of funds or to recover mis- Cent. Dig. § 169; Dec. Dig. $ 92.* ] appropriated funds, the taxpayers had a com- 3. RECEIVERS (8 155*) – OPERATION OF BUSIplete remedy in the event of the refusal of NESS-PREFERRED CLAIMS-PAYMENT.

Where a receiver, in order to operate a the board to institute such an action. [5] The only remaining question in the curred other indebtedness in operating the mine,

mine, borrowed money from a bank, and also in. case presented for our determination is it was improper for him to pay such other inwhether or not the decree enjoining defend- debtedness in full and only a percentage of the ant Mitchell from further performing du- have paid the claims for money used in operat

money borrowed from the bank, but he should ties as engineer, and restraining the board ing the plant pro rata, if there was not enough from continuing him in that work, is correct. to pay it all, and was therefore bound to pay Without undertaking to decide at this time the balance of the bank's debt before other dis

bursements or distribution was made. whether the charges against Mitchell were

[Ed._Note.-For other cases, see Receivers, sustained by the proof, we are of the opinion Cent. Dig. $8 293–292; Dec. Dig. $ 155.*] that the court exceeded its power in under-4. RECEIVERS (8 199*)—EXPENDITURES—Booktaking to restrain the board from continuing Mitchell in his place as engineer. That

Where a bookkeeper kept a receiver's books

as a "side line" and received $15 a month during amounted to ousting Mitchell from his place, the time a mine was in operation, which was whether it be called an office or an employ- | all that the service was worth, an allowance of ment. The statute, as already shown, au- additional compensation for keeping the books thorized the board to elect an engineer, and

was improper. the term of his incumbency was definitely cent. Dig. $ 391; Dec. Dig. $ 199.* ]

(Ed. Note.-For other cases, see Receivers, fixed by the statute. This authority was re- 5. RECEIVERS (8 158*)-CLAIMS—ALLOWANCE posed in the board, and it would be an usur- FOR SERVICES. pation of authority for the court to attempt

Where the receiver of a mining corporato exercise the power of appointment or re superintendent of the mine for two months be

tion was a capable mining man, and had been moval. The court has the power to prevent fore it passed into the hands of a receiver, he illegal acts of the board or engineer, but not was entitled to a preferred claim for his salary the power to oust either of them from office. for such term amounting to $150 per month, The decree against defendant Spence is as provided by Kirby's Dig. $ 4057.

[Ed. Note. For other cases, see Receivers. therefore affirmed. The decree against Cent. Dig. 88 301-306; Dec. Dig. $ 158.*] Mitchell and the board, restraining the board 6. RECEIVERS (8 198*)-COMMISSIONS-SALE OF from retaining Mitchell as engineer, is re- PROPERTY. versed and remanded, with directions to dis- Where $4,000 had been agreed on as a reamiss the complaint as to that feature of the sonable sum to be allowed as compensation for

a receiver's services, and the evidence showed case. The appeal of Mitchell and the appeal that that was reasonable for all services renof the contractors, A. W. Wills & Sons, con- dered by the receiver, the court erred in allowcerning the state of the accounts between ing, in addition to such amount, a commission them respectively and the board, are dis- of $1,540.80 on the sale of the property.

[Ed. Note.--For other cases, see Receivers, missed as premature.

Cent. Dig. $$ 392–396; Dec. Dig. $198.*]

Appeal from Sebastian Chancery Court;

J. V. Bourland, Chancellor. GERMAN NAT. BANK v. YOUNG (No. 120.) Judicial settlement of the accounts of R. A. (Supreme Court of Arkansas. July 13, 1914.) | Young, as receiver of the Hiawatha Smoke 1. RECEIVERS (8 199*)-COMPENSATION-PER

less Coal Company. From a judgment allow8ONAL EXPENDITURES.

ing the account and overruling exceptions Where a receiver's report showed that he filed by the German National Bank, it aphad used $2,034.65 for his personal benefit, and peals. Reversed and remanded. his account was passed and allowed under an agreement that he should receive $4,000 for his In April, 1909, the Hiawatha Smokeless services, the passing of the account was not res Coal Company, operating a coal mine in in addition to the $4,000, but the court should Scott county, was by the chancery court, on have charged the amount so used against the the application of some of its stockholders, allowance for his fees.

the company being insolvent, placed in the [Ed. Note.-For other cases, see Receivers, hands of a receiver to be wound up and its Cent. Dig. $ 391; Dec. Dig. 199.*]

assets distributed. The complaint prayed 2. RECEIVERS (8 92*) OPERATION OF BUSI- that the same be managed under the orders NESS-Losses.

Where a receiver, who was a skilled mine and direction of the court, and that the reoperator, was authorized to operate a coal ceiver be ordered to borrow as much money mine belonging to the estate if he thought it to as was necessary to protect the property; *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

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