in bringing about the sale. That issue should have been submitted to the jury under correct instructions. For the errors indicated, the judgment is reversed, and the cause remanded for a new trial. (134 Ark. 447) STATE ex rel. HALL et al. v. CANAL CONST. CO. et al. (Nos. 346, 17.) (Supreme Court of Arkansas. May 6, 1918. On Motion for Rehearing, May 27, 1918.) 1. DRAINS 49-ORGANIZATION OF DISTRICT -CURATIVE ACT. The defect in drainage proceedings under Kirby's Dig. § 1414 et seq., in that the contract for the construction of the improvement was awarded to a bidder whose bid exceeded the estimated cost of the construction by more than 25 per cent., contrary to section 1431, was cured by Acts 1909, p. 308, and Acts 1913, p. 107. 2. DRAINS 49-CONTRACTS ADDITIONAL EXCAVATION. Where the contract of a construction company for the construction of a drainage ditch provided for payment to it of a gross sum based upon a named sum per cubic yard for excavating the number of yards in the engineer's estimate, upon discovery of an error in footing up the total yardage, it was entitled to be paid, for the extra yardage found necessary to complete the work, the sum per cubic yard named in its original contract. 3. DRAINS 83-ADDITIONAL ASSESSMENTORDER IN VACATION. Under Acts 1913, p. 107, § 5, providing that the county court by order entered of record may provide for an additional drainage district assessment, such order cannot be made in vacation. 4. COURTS 66(1)—ADJOURNMENT OF TERM. On the opening day of a term of the county court, the court may adjourn to a fixed day later in the term. 5. COURTS 66(3)-ADJOURNMENT OF TERM. The presiding judge in a county court has no right to convene the court at a time prior to a fixed day to which the court has been adjourned. 6. DRAINS 83-Order for ADDITIONAL As SESSMENT. The requirement of Acts 1913, p. 107, § 5, that every additional drainage district assessment shall be made in the manner provided by law for the making of the original assessment means that it must follow the general method and form provided for making the original assessment, but does not refer to the notice to be given in the original assessment. On Motion for Rehearing. 7. COURTS 66(3)—ADJOURNMENT OF TERM. Under Kirby's Dig. § 1531, providing for adjournment of court to a distant day, when a court adjourns to a distant day and does not reconvene the same day, the functions of the court cease after the day on which the order of adjournment is made until the day fixed for reconvening. Appeal from Poinsett Chancery Court; Geo. T. Humphries, Chancellor. Suit by the State, on the relation of A. W. Hall and others, against the Canal Con struction Company and others. From a judgment for defendants, plaintiffs appeal. Reversed and remanded. On the 1st day of May, 1916, appellants brought suit in equity against appellees to enjoin them from collecting levee taxes under an alleged void order of assessment, and also to declare void said assessment as a cloud upon the title of their lands. The record' is voluminous. So in our statement of facts only such parts of the record will be stated or referred to as will be necessary for a determination of the issues raised by the appeal. Drainage district No. 3 was organized in 1907, under our general statutes relating to the subject. Kirby's Digest, § 1414 et seq. The cost of the construction of the main ditch and the laterals as shown by the report of the engineers and viewers was $108,000. In January, 1908, the contract for the construction of the proposed improvement was offered at a public letting, and the Canal Construction Company, having offered to perform the work for $230,231.50, was given the contract therefor. There was a mistake made in the advertisement, and the work was again advertised to be let at public bidding. The Canal Construction Company again bid the sum of $230,231.50 and became the contractor for the construction of the improvement. It was shown by witnesses that Cole & Hardy offered to per form the work for a less sum. On the other hand, the president of the Canal Construction Company testified that Cole & Hardy did not make a bid on the work in this district, but made a bid on the work in this district, but made a bid on the work in another drainage district in Poinsett county which was let at the same time. Be that as it may, a written contract was entered into between the board of directors of the drainage district and the Canal Construction Company for the construction of the proposed improvement. We quote below such portions of the contract as we deem necessary for a proper determination of the issues raised by the appeal. One section of the contract reads as follows: "Witnesseth, that the Canal Construction Company of Chicago, Illinois, has this day contracted and agreed with the county court of Poinsett county, Arkansas, acting for the use and benefit of drainage district number three (3), in said Poinsett county, to clear the right of way and make all excavation necessary in the construction and completion of the ditch or canal in drainage district number three (3), and the nine (9) lateral ditches in said Poinsett county, as the same is now set forth in the map of said drainage district number three (3) and the profile of the said ditch or canal in said drainage district number three (3), now on file in the office of the clerk of said county court of Poinsett county, at and for the sum of thirteen and 95/100 (13/95) cents per cubic yard, or the gross sum of $230,231.50 for 1,650,405 cubic yards shall be taken as full payment for both the clearing of the right of way and the excavation necessary in the construction of said ditch or canal and that no estimate shall be made or charge made or money collected on account of the clearing of the right of way." The engineer of the district made detailed estimates of the cost of the work and showed reads as follows: in his estimates the cost of the work in each | appellee Canal Construction Company canstation. Another clause of the contract not recover the cost of the additional yardage for the reason that its original bid was "And the said Canal Construction Company in excess of 25 per cent. of the estimated does hereby further agree that the number of cost for the completion of the work. Seccubic yards in each station or section of the said ditch or canal shall be taken as correctly tion 1431 of Kirby's Digest provides that estimated in the table of cubic yards by sta- no bids shall be entertained which exceed tions of one hundred feet each in length now on file in the office of the clerk of Poinsett county, Arkansas, and in no event shall the Canal Construction Company ask for a greater number of cubic yards in any section or station of one hundred feet than is set forth in said tabulated statement; and the same is hereby made a part of this contract and agreement in the same sense as if the same were hereto attached and made a part hereof." After the work had progressed until about 87 per cent. of it had been done it was discovered that a mistake had been made in footing up the estimates so that it was necessary in order to construct the ditch as provided in the contract that an additional 117,503 cubic yards of earth be removed. The contractor claimed that under his .contract with the drainage district he was to receive 13.95 cents per cubic yard for all the earth excavated, and refused to excavate the 117,503 cubic yards of earth required to complete the improvement unless he was paid therefor the sum of 13.95 cents per cubic yard, amounting in the aggregate to $16,328.89. After consultation with the commissioners for the district and the county court, it was agreed that the construction company would be entitled to this additional amount under its contract with the district. The Canal Construction Company then proceeded with the work, and finished its construction in the fall of 1913. On the 26th day of October 1914, an order was entered upon the records of the county court, providing for an additional assessment against the various tracts of land in the district for the payment of this additional cost. This order purports to have been made under section 5, of Act 23 of the Acts of 1913. This act was passed for the purpose of curing defects and ratifying all the proceedings for the establishment of certain drainage districts in Poinsett county, including the one in question. It is claimed by appellees that this order was made during the sitting of the county court, and by appellants that it was made in vacation, and on that account is void. The purported order levied additional assessments payable in one, two, and three years for the purpose of paying the additional costs above referred to. Hence this lawsuit. Other facts will be stated or referred to in the opinion. the estimated cost of the construction more The and paramount lien upon such lands. section also provides that the district shall be declared legally established. Section 4 provides that the payment of the bonds of the district shall be secured by the special assessments levied before or which might thereafter be levied against the lands in the district on account of the location and construction of the drainage improvement. Section 5 declares that the benefits to the lands shall constitute the basis for an assessment. It further provides that in the event the aggregate of the amount which had been apportioned and assessed against the several tracts of land in the district shall prove insufficient to pay the costs of the location, construction, and repairs of the improvement, the county court of Poinsett county may, by an order entered of record, provide for an additional assessment against the sev eral tracts of land in the district in proportion to the benefits ascertained as above mentioned. It also provides that every such adThe court found the issues in favor of ap-ditional assessment shall be made in the pellees, and the case is here on appeal. Hawthorne & Hawthorne, of Jonesboro, for appellants. N. F. Lamb, of Jonesboro, for appellees. HART, J. (after stating the facts as above). [1] It is contended by appellants that 203 S.W.-45 manner provided by law for making the original assessment. Acts of 1913, p. 107. [2] It is well settled that the Legislature has the power to pass healing acts which do not impair the obligation of contracts nor interfere with vested rights. Green v. Abraham, 43 Ark. 420, and Gibson v. Incorporated earth to be removed. The construction company would be entitled to be paid for the total number of the cubic yards of earth excavated by it at the percentage price per cubic yard named in the contract. Their rights under the contract could not be subsequently impaired either by the drainage district or by the Legislature. Recognizing that vested rights under the contract could not be interfered with, the Legislature passed the act of 1913 referred to above, curing all defects and ratifying all proceedings for the establishment of the drainage district and providing for additional or new estimates upon the lands in the district. Acts of 1913, p. 107. Under Town of Hoxie, 110 Ark. 544, 162 S. W. 568. I they would bid, of course, would largely deIt is well settled in these and in numerous pend upon the number of cubic yards of other cases of similar import in this state that, if the defect consists in doing some act, or in the mode or manner of doing it, which the Legislature might have made immaterial by a prior law, it may do so by a subsequent one. It is manifest that the provision that no bids shall be entertained which exceed the estimated cost of the construction more than 25 per cent. might have been dispensed with by the Legislature in the original statute. Hence in the application of the rule in regard to curative acts, the Legislature might dispense with this requirement by a subsequent statute. This is virtually conceded by counsel for appellants, but it is insisted by counsel that, while these curative acts may [3] As we have already seen, section 5 prohave validated the proceedings, so far as vided that the county court by an order enthe payment of the aggregate amount of tered of record might provide for additional $230,231.50 is concerned, its action was void assessments against the lands if it should be so far as authorizing the payment of an ad- found that the aggregate of the amounts alditional amount for the extra yardage which ready assessed should prove insufficient to was found necessary for the completion of pay the costs of the improvement. the contract. This brings us to a considera- this section the county judge caused the ortion of the provisions of the original contract der dated October 26, 1914, to be entered upfor the construction of the improvement. By on the records of the county court. It will its terms the rights and obligations of the be noted that under the terms of the act the parties to it are created, and, as we have al-order must be made by the county court, and ready seen, the Legislature cannot pass an could not be made by the judge thereof in act impairing its obligations or interfering vacation. The opening order of the county with rights vested under it. The subject-court for the October 1914 term is as folmatter of the contract was the construction lows: of the drainage ditch or canal. In order that contractors might more intelligently bid upon the work of construction, the engineer for the district made a survey of the proposed route and laid it off into numerous stations. A detailed estimate of the amount of dirt to be removed on each station was prepared by the engineer and submitted to the bidders as a part of the specifications. It seems that in footing up the totals a mistake was made in the amount of yardage of earth to be excavated before the ditch could be constructed according to the specifications. This was not discovered until more than 80 per cent. of the work of construction had been completed. The construction company refused to go any further until the mistake was corrected. It claimed that it made its bid at a certain per cent. per cubic yard, and that the gross sum named in the contract was simply the estimate of the total cost under the specifications. We think this construction is a reasonable one, and is borne out by the two sections of the contract which we copied in our statement of facts. The bid of the construction company was predicated upon the correctness of the estimates prepared by the engineer of the drainage district. It could not intelligently make a bid without surveying the work itself or adopting the survey and estimates made by the engineer of the district. Doubtless the parties had gone over the proposed route and had observed the kind of earth that was "Opening Order. "State of Arkansas, County of Poinsett: [4] The order in question is entered upon the record of the court following the opening order, and purports to bear the date of October 26, 1914. Under our statute certain times and places are fixed by law to hold court. In the instant case the court was open at the time and place and in the manner provided by law. It was a matter which rested in the discretion of the presiding judge to hold the court open until all its business had been dispatched or to adjourn to a day certain. It appears from the record that on the opening day the court adjourned to a fixed day later in the term. This he had the power to do. Dunn v. State, 2 Ark. 229, 35 Am. Dec. 54; Butler v. Williams, 48 Ark. 227, 2 S. W. 843; Streett v. Reynolds, 63 Ark. 1, 38 S. W. 150; Ex parte Baldwin, 118 Ark. 416, 176 S. W. 680. [5, 6] When the court adjourned to a day to remain away until the day fixed by the. We do not think that case sustains the posicourt to convene again, and the judge could tion taken by counsel. We did not overlook not before that day arrived convene the court and proceed with the dispatch of the cases and other matters pending therein. The fact that by a statute in this state courts must be held at fixed times and places raises the implication that courts cannot assume a vagrant character and hold its sessions at other times or places than those provided by law. Mell v. State, 202 S. W. 33. The presiding judge had no right to convene the court on the 26th day of October, after having adjourned it to a fixed day which was later in point of time. Therefore the order entered upon the record of October 26, 1914, was made in vacation, and furnished no basis for an additional assessment of the land that was within the district. To make such assessment a valid one we are of the opinion that it must be made by the county court during its sitting and not in vacation. The last part of the section which provides that every such additional assessment shall be made in the manner provided by law for the making of the original assessment means that it must follow the general method and form provided for making the original assessment. It does not refer to the notice to be given in the original assessment, as contended by counsel for appellants. This is obvious when we consider the statute in connection with the object sought to be accomplished by it. It was evidently the intention of the lawmakers to provide for an additional assessment to cover the cost of the additional yardage which had been found to exist by reason of the mistake in making the totals of the original estimates on the various stations. The framers of the statute evidently intended to give to the county court the power to make this additional assessment, and provided that it should be made in the general method or form provided for in the original assessment. Because the order for the additional assessment was made in vacation and not during the session of the court, the decree will be reversed, and the cause remanded for further proceedings not inconsistent with this opinion. On Motion for Rehearing. [7] Counsel for appellee in their motion for a rehearing rely upon the case of Ex parte Baldwin, 118 Ark. 416, 176 S. W. 680. it in our original opinion, but thought that it rather tends to uphold the decision of the court. There the circuit court record showed, "Ordered that court court adjourn until -," and, immediately following the entry, "ordered that court adjourn until Thursday morning, March 4, 1915." The court was of the opinion that the first order showed on its face that it was incomplete, and that it was controlled by the subsequent entry on the same day, showing that the adjournment was to a definite date. Hence the court held that the term did not lapse. In that case the court said that our statute does not take account of parts of days, and for that reason has the power to reconvene on the same day for the purpose of transacting business even after it has announced an adjournment. The court, however, expressly stated that our statute manifestly contemplates different days of the term of court. Section 1531 of Kirby's Digest provides for the adjournment of court to a distant day. This shows that we have departed from the common-law rule that a term of court shall be considered as one day. For that reason when a court adjourns to a distant day and does not reconvene the same day the functions of the court cease after the expiration of the day on which the order of adjournment is made until the day fixed for reconvening. During the interim the court has no power to transact business. In this state both the time and place of holding court in each county are fixed by law. Litigants must take notice of the time and place where . courts of record are held. When the court made the order adjourning to a. distant day, the litigants and interested parties had a right to assume that the functions of the court would cease until that day, and that no business would be transacted in the court until the day designated for the court to reconvene. According to the record, the court adjourned to a given day in the future, and, without rescinding that order, convened court on a day between the date of the adjourning order and the date fixed for the court to reconvene. The order in question was made on that day, and the court had no power to make it. Therefore the motion for a rehearing will be denied. (180 Ky. 794) COMMONWEALTH v. CRASS. (Court of Appeals of Kentucky. May 31, 1918.) 1. CRIMINAL LAW 97(1)-LOCALITY OF Or FENSE-BETTING ON ELECTIONS. Where defendant went 20 miles to Tennessee with witness for the state, where they made an election bet, the court erred in acquitting defendant of betting on an election in violation of Ky. St. § 1975, although the only witness testified that he did not know what he was going to Tennessee for, and that no agreement to bet was made before they left. 2. ELECTIONS 315-BETTING ON ELECTION -UBJECT OF STATUTE. The object of Ky. St. § 1975, prohibiting betting on elections, is to protect the purity of the elective franchise, and to secure perfect freedom and impartiality, and should be construed to accomplish such object. Appeal from Circuit Court, Graves County. Will Crass was acquitted of betting on an election, and the Commonwealth appeals. Reversed for a new trial. Q. When did you get the money out of the Chas. H. Morris, Atty. Gen., and D. M. [1, 2] The defendant would have us beHowerton, Asst. Atty. Gen., for the Com-lieve either that he and Simpson traveled monwealth. J. E. Warren, of Mayfield, for from Mayfield to Dukedom, and returned, a appellee. MILLER, J. The appellee, Will Crass, was indicted by the grand jury of Graves county for betting on an election. Graves county extends southwardly to the Tennessee state line, and Dukedom is situated in Ten ́nessee immediately south of and next to the Graves county line. The defense is that the bet was not made in Kentucky, but was made at Dukedom, in Tennessee. Upon a trial of the case by the circuit judge without the intervention of a jury, Crass was acquitted. The commonwealth appeals. The commonwealth introduced but one witness, W. J. Simpson, the man with whom Crass made the bet. The defendant offered no proof. Simpson testified that he and Crass met in Mayfield, and from there went together in an automobile to Dukedom, a distance of about ten miles; that he made three bets with Crass aggregating $500; that the bets were made in Dukedom, Tenn.; distance of 20 miles or more, on two separate occasions, not knowing what they were going for, or that, in the language of the sporting fraternity of Mayfield, when one citizen says to another, "I am ready to go to Dukedom, Tenn.," he really means they have already made a bet in Mayfield, and would go through the farce of riding down to Dukedom and back for the purpose of evading the statute. The last is most probably true; but the courts will not permit the laws to be thus evaded. People are to be judged by what they do, and from the usual and ordinary results of their acts, rather than from their words, whenever they are contradictory. * The statute provides that: "If any person shall wager or bet any sum of money or anything of value upon an election he shall be fined one hundred dollars, to be recovered in any county where the party so offending may be found, or where the bet is made." Ky. Sts. § 1975. The object of the statute is to protect the purity of the elective franchise, and to secure perfect freedom and impartiality in the exercise of this inestimable right; and such construction should be given the statute that will accomplish the object intended. Commonwealth v. Kirk, 4 B. Mon. 1. that they first agreed on making the bets while in the Dukedom Bank; and that nothing was said in Mayfield about making a bet. For the purpose of being more specific, we quote from Simpson's testimony as follows: "Q. How much did you bet when you got there (meaning Dukedom)? A. $100. Q. Did you agree on that before you left here? A. No, We are of the opinion that the bet in this sir. Q. Well, what did you go over there for? case was made in Graves county, and that A. I don't know. Q. What did the defendant the parties traveled to Dukedom merely for go with you over there for? A. I could not tell. Q. How many times did you and the defendant the purpose of evading the statute. No other go over to Dukedom to make bets? A. Twice. conclusion can be drawn from Simpson's tesQ. You went twice, and you made three differ-timony. ent bets? A. Yes, sir. Q. How much money did you carry with you the first time? A. I Many similar attempts to evade prosecu don't remember. Q. How much the second tion under the local option laws of this time? A. I don't remember. Q. How much state are to be found in the books. It is did you have up over there in all with the true section 2570 of the Kentucky Statutes defendant on that election? A. It was either $500 or $550. Q: Did you put the money up expressly provides that "no trick, subterfuge in cash, or by check? A. Put it up in the bank. or devise shall be allowed to evade the pur |