It is held by the weight of authority that when the appeal is complete and the appellate court has jurisdiction, the dismissal of the appeal, an action which leaves standing in full force the judgment appealed from, in every respect operates as, and practically is, an affirmance of the judgment, and would give an action on the bond under the foregoing condition for affirmance. Stearns, Suretyship, 364; Baylies on Sureties and Guar

The statute (section 2042, R. S. 1909) in relation to appeal bonds prescribes that the bond shall be in double the amount of the judgment, and shall be conditioned"that the appellant will prosecute his appeal with due diligence to a decision in the appellate court and shall perform such judgment as shall be given by such court, or such as the appellate court may direct the circuit court to give, and if the judgment of such court or any part thereof, be affirmed, that he will comply with and perform the same, so far as it may be affirmed, and will pay all damages and costs which may be awarded against the appellant by any appellate court."

Judge Nixon, who wrote the opinion in the case referred to, takes the view that a dismissal of an appeal is "a decision," and that therefore the condition of the bond has been fulfilled and no liability is incurred. If it be conceded that a judgment of dismissal is a decision of the case, within the meaning of the bond, yet it seems to me that the learned judge fails to give effect to the words immediately preceding the word "decision." The whole phrase should be considered, viz., "that the appellant will prosecute his appeal with due diligence to a decision." Now if an appellant fails altogether to prosecute his appeal, by either willfully or negligently defaulting in the steps necessary to take care of it, to the end that it may be heard, or by affirmatively asking that it be dismissed, he certainly is violating the condition to prosecute with diligence. He is taking exactly the opposite to the course he obligated himself to take. He who dallies or lags with an appeal, or who neglects or willfully abandons it, is not prosecuting it. To prosecute an appeal means to keep step, as well as reasonably may be, the circumstances considered, with the legal require ments to bring it to a final disposition. seems to me absurd to allow that one who neglects or abandons his appeal may say

It

Coon v. McCormick, 69 Iowa, 539, 29 N. W. 455; Dolan v. Bartruff, 145 N. W. 273 (Supreme Court of Iowa, 1914); Blaer v. Reading, 103 Ill. 375; McConnel v. Swailes, 2 Scam. (Ill.) 572; Sutherland v. Phelps, 22 Ill. 91; Harrison v. Bank, 3 J. J. Marsh. (Ky.) 375; Gregory v. Obrian, 13 N. J. Law, 11, 13; Teel v. Tice, 14 N. J. Law, 444. But whether authorizing an action on that part of the condition is of no consequence in this case, since the literal terms of the bond as to a prosecution with diligence, have been

violated.

[3] As influencing the view that a dismissal of an appeal for failure to prosecute in the manner required by law will not give an action on the appeal bond, it is said that the statute permits one to sue out a writ of error at any time within a year of the rendition of the judgment, and that the writ may be had after the dismissal of an appeal. And it is said that to allow the respondent to recover on his appeal bond would produce, in many instances, the anomaly of one having paid a judgment which is afterwards reversed on writ of error. But that would be no more than frequently happens; thus, if one appeals or sues out a writ of error and does not give bond, there is no supersedeas, and execution may immediately issue and compel him to pay a judgment which may afterwards be reversed when the case is heard in the appellate court. But in each of these instances the successful party in the appellate court may recover back the money he has been compelled to pay. So though an appellant who dismisses his appeal (or his sureties) is compelled to pay the judgment, and though such judgment is afterwards reversed on a writ of error, he is in no worse situation than he who appeals, or who sues out a writ of error, without bond.

The motion to affirm should be denied.

court for review, and presents a new question. It is contended that the provision constitutes a delegation of legislative authority to the board of improvement. After careful consideration of the question, we are, however, of the opinion that the provision does not constitute a delegation of legislative authority, but that it comes within the rule announced by this court that, while the Legislature cannot delegate power to make laws, "it can make a law to delegate the power to determine some facts or state of things upon which the law makes or intends to make its own action depend." Boyd v. Bryant, 35 Ark. 69, 37 Am. Rep. 6. This statute, it will be observed, is completely put in force by the Legislature, and nothing is left to the board so far as completing the enactment. It only delegates to the board the authority of determining the extent to which the proceedings may go towards the construction of the improvement. The improvement district itself is created by the statute, and the board of improvement is named for the purpose of carrying out the provisions of the statute. The board is clothed with complete authority, not only to perform the preliminary acts, but to construct the improvement and assess benefits and collect taxes, etc. There is a mandatory direction to the board to organize itself by the election of officers, and to employ engineers and form plans for the improvement. At this point the board is authorized, before incurring further expense, to determine whether or not it will be expedient to make the improvements; and this is not a delegation of legislative authority, but power to ascertain the facts whether or not the plan for the improvement is feasible and shall be consummated. Of course, there is a further limitation upon the power of the board to proceed, in that the benefits must be ascertained to be equal to the cost of the improvement. But it was the purpose of the lawmakers to provide for an ascertainment by the board in advance of the assessment of benefits whether or not the plan to construct the improvement is feasible, or, to use the exact language of the statute, to determine whether or not it is "expedient to make said improvement."

[6] Counsel for defendants have cited many cases on their brief which sustain the view that this is not a delegation of legislative authority. The true test, approved by many courts in accord with the rule announced by this court in Boyd v. Bryant, supra, is stated by the Supreme Court of Ohio in Railroad Company v. Commissioners, 1 Ohio St. 77,

as follows:

"The true distinction ** ** is between the delegation of power to make the law, which necessarily involves the discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection

The drainage laws of this state constitute the county court as the tribunal for determining the expediency of such an improve ment in a given locality, and we can see no reason, from the standpoint of constitutionality, why the Legislature cannot create, even in a special statute, a tribunal, consisting of the members of the board of improvement, to determine the feasibility of the improvement to be undertaken before unnecessary expense is incurred. It is not essential that the lawmakers themselves shall first determine the feasibility of the improvement. The passage of the statute presupposes a legislative determination as to the necessity for the improvement, or at least as to its desirability; but there is no reason why the lawmakers should not delegate to a special tribunal the further authority of determining its expediency before incurring considerable expense towards its construction. The statute therefore is not open to the objection that it constitutes a delegation of legislative authority.

[7] There is also a contention that the proceeding is void because one of the commissioners named is not the owner of property except inside the town of Sheridan. There is no force in that objection, even if the act required the commissioners to be landowners; for, as we have already said, it was within the power of the Legislature to include the town within the limits of the district, and if a commissioner owned land inside of the district he was qualified. The statute, it is true, provides that commissioners who are to succeed those named in the statute at the expiration of their terms shall be property owners within the district; but the statute names certain individuals who are to constitute the first board of improvement, and there is no specification as to their qualifications. Therefore the question cannot arise whether or not they are property owners.

[8] Nor is there anything in the contention that the act is void because it fails to provide for the commissioners to take an oath of office. The statute is silent on that subject, though it contains an express provision that the commissioners "shall organize by electing one of its members as president and by electing a secretary and treasurer." The members of the board are not officers within the meaning of the provision of the Constitution (article 19, § 20) requiring all officers, both civil and military, to take and subscribe to a certain oath before entering upon the discharge of the duties of their

office; but, if it were to be held that that provision did apply, there is nothing in this statute in conflict with it, even though it contains no requirement for taking the oath. If the commissioners were public officers, it would be their duty to take the oath in

any express provision of the statute to that effect.

Finally it is urged, with considerable earnestness, that the evidence shows that the assessment of benefits is invalid on account of the lack of uniformity, and for other reasons. The case was, as before stated, tried upon an agreed statement of facts and the depositions of witnesses. The depositions of two of the assessors were taken, and it appears that they exercised their judgment fairly and that the state of the proof is such that we cannot say that the assessments are unreasonable or that they lack uniformity. It is contended further that, according to the statement made by one of the assessors, they made their assessment without any reference to the cost of the improvement and without having the plans before them. It appears, however, from a preponderance of the testimony in the case, that the plans for the improvement had been formed before the assessment was made, and that those plans were laid before and considered by the board in making the assessment. In other words, the preponderance of the testimony is against the contention of appellants on the issue made concerning the validity of the assessment.

This disposes of all the attacks made here on the validity of the statute, and of the proceedings, and it follows from what we have said that the decree of the chancellor dismissing the complaint for want of equity

should be affirmed. It is so ordered.

MCGILL et al. v. ADAMS. (No. 153.) (Supreme Court of Arkansas. Oct. 11, 1915.) 1. TAXATION 805-TAX SALES-CANCELLATION OF DEED.

Where the purchaser of wild and unimproved lands sold to the state for unpaid taxes, paid taxes thereon for 14 years after his purchase, the former owner's action to cancel the deed is barred by the statute of limitations requiring actions in such cases to be brought within 7 years.

[Ed. Note.-For other cases, see Taxation, Cent. Dig. §§ 1593-1597; Dec. Dig. 805.] 2. TAXATION 805-TAX SALES-CANCELLA

TION OF DEED-LACHES.

Where plaintiffs in an action to quiet their title in property sold to the state for unpaid taxes, and by the state to defendant, are under the disabiltiy of coverture, and therefore not barred by the statute of limitations, nevertheless failure to enforce their rights or to pay taxes for 45 years, 14 of which were after defendant's acquisition of title from the state, during which time the land increased markedly in value, bars their action on the ground of laches.

[Ed. Note. For other cases, see Taxation, Cent. Dig. §§ 1593-1597; Dec. Dig. 805.] Appeal from Clark Chancery Court; Jas. D. Shaver, Chancellor.

Action by Josephine McGill and another against W. P. Adams. From judgment for defendant, plaintiffs appeal. Affirmed.

A. N. Meek, of Camden, and E. L. Carter, of Little Rock, for appellants. Hardage & Wilson, of Arkadelphia, for appellee.

MCCULLOCH, C. J. Plaintiffs inherited the lands in controversy, which are still wild and unimproved, and which were forfeited to the state for taxes in the year 1869. Defendant's grantor purchased the lands from the state and received a deed therefor dated January 25, 1900, and defendant and his grantor have paid taxes continuously on the lands up to the present time. This is an action instituted by the plaintiffs in the chancery court to cancel the tax sale and quiet their title, on the ground that said sale was void, for the reason that the statutory requirements concerning tax sales were not It is conceded that the tax complied with. sale was void, but the action is defended on the ground that one of the plaintiffs is barred by the statute of limitations, and that the other two, who are now and have been married women since defendant's grantor purchased the land from the state, are barred by laches. The chancellor sustained this defense, and plaintiffs have appealed.

[1, 2] The evidence shows that the defendant and his grantor have paid taxes continuously since the latter purchased the land from the state in the year 1900, and that since that time the lands have become greatThere is an agreed ly enhanced in value. statement in the record to the effect that at the time the defendant's grantor purchased the lands they were worth from $1.25 to $1.50 per acre, and that at the commencement of the suit the lands were worth from $10 to $15 per acre. The one plaintiff who is not laboring under any disability is clearly barred by the statute of limitation, the lands being wild and unimproved, and defendant and his grantor having paid taxes thereon under color of title for more than 7 years prior to the commencement of the action. The other two plaintiffs are under the disability of coveture, and are not barred by the statute of limitation, but they are barred by The facts of the case their own laches.

bring it within the rule announced by this court in a long line of cases, beginning with Clay v. Bilby, 72 Ark. 101, 78 S. W. 749, 1 Ann. Cas. 917, and coming down to the comparatively recent case of Burbridge v. Wilson, 99 Ark. 455, 138 S. W. 880. The same rule is announced in still later cases, where it was found that the facts did not bring them within the application of the rule. Herget v. McLeod, 102 Ark. 59, 143 S. W. 103; Bradley Lumber Co. v. Langford, 109 Ark. 594, 160 S. W. 866.

We have uniformly held that the failure to pay taxes on unimproved lands for a long period of time, together with great enhancement in values, constitute an abandonment, and that an action seeking equitable relief against one who has paid taxes under those