Page, State Tr. v. Paving Imp. Dist. No. 4 of Marianna

In an opinion handed down February 16, 1942, a decree of Pulaski chancery court directing the state treasurer to pay appellee $53,528.90 was reversed except as to $1,328.90. Appellee's brief in support of its petition for rehearing, while still contending that it should be paid $53,200 in addition to the item of $1,328.90, emphasized what was termed this court's failure to give proper consideration to a stipulation, from which the lower court found ". . . from the evidence adduced herein and by agreement of counsel . . . that the paving district was entitled to $22,328.90." There was a further recital in the decree that "After hearing argument of counsel [it is found that the district] is entitled to an additional allowance . . . of $31,200."

It will be observed that the award of $22,328.90 was made upon an agreement that such sum was due. The attorney general's office based its consent upon facts supplied by the highway department, in which it was found that total costs were as stated. Subdivision (a), 10, Act 385 of 1941. See Page, Treasurer, v. Street Improvement District No. 11 of Russellville, 203 Ark. 657,158 S.W.2d 905, for construction of applicable statutes.

Inasmuch as the attorney general's agreement was predicated upon facts found by the highway department, and the agreement as to $22,328.90 has not been questioned, it is our view that the decree was supported by the evidence essential to sustain it.

In a per curiam order of March 30, 1942, rehearing was granted as to $21,000, including an item of $14,300 and another of $6,700. In the per curiam order there was the statement that an opinion would be handed down later. Mr. Justice HOLT and Mr. Justice HUMPHREYS dissented. The former dissents from this opinion. Although Mr. Justice HUMPHREYS is no longer a member of the court, he would, if a member, probably join Mr. Justice HOLT in the dissent.

Mr. Justice ROBINS, Mr. Justice McFADDIN and Mr. Justice CARTER have not participated in this opinion, which is merely the formal expression of what was done March 30, 1942, a transaction that became final after fifteen judicial days, with two of the justices entertaining views at variance with the other five.