Phillips was, under the will, burdened with the spendthrift trust-the payment of the legacy of $50 per month to her husband, James Phillips-was not before us in the above case. None of the issues now before us were presented in that case. Nevertheless what we there said concerning the intention of the testatrix to require the payment of the $50 per month out of the property "devised and bequeathed to her son," William James Phillips, is the correct interpretation of the will. We there said:

* *

"The fact that the testatrix designates her son, William James Phillips, as executor and trustee and directs him to pay the sum of $50 per month to her beloved husband * as long as he lived showed her intention to create a trust in favor of her husband out of the property devised and bequeathed to her son. In other words, the property going to him under the will was burdened with the trust of paying to the extent of $50 per month for the specific purpose of the support of the appellee James Phillips."

In the instant case, William James Phillips testified:

"My father has no means of support except what comes from the property owned by my mother. Fifty dollars a month is reasonably necessary to his support."

This testimony was undisputed, and it shows that the facts here are virtually the same as they were in the case of Fortner v. Phillips, supra, so far as the spendthrift trust is concerned. There is nothing in the facts of this record to indicate that the interpretation we gave the will by the language quoted supra is not correct.

Without repeating here the language of the devise to Hilda Mildred Phillips, it suffices to say that it is wholly inconsistent and irreconcilable with the idea and contention that her interests were ever to be subjected to the payment of the spendthrift trust.

In Parker v. Wilson, 98 Ark. 553-561, 136 S. W. 981, 984, we said:

"In construing the provisions of a will, the intention of the maker is first to be ascertained, and, when not at variance with recognized rules of law, must govern. The intention of the testator must be gathered from all parts of the will, and such construction be given as best comports with the purposes and objects of the testator, and as will least conflict."

The will on its face shows that William J. Phillips and Hilda Mildred Phillips were favored beneficiaries. This is doubtless true as to William James for the reason, as he

testifies:

"That he paid all the debts in the house four years before her death; that she (his mother) had no income and no way of making one; that she knew where the money came from; that she would not have had any estate to diIvide if it had not been for me. I had made it for her."

It was but natural that the mother should feel inclined to favor the son who had shown his financial ability to successfully manage her property. As to the granddaughter whom she had reared and who was dependent upon her, it was also most natural that the testatrix should have made this granddaughter the special object of her bounty.

But it by no means follows from this that she intended that her other children, who were also legatees and devisees under the will, were to share pro rata of the meager interest which they had received toward the support of their father, James Phillips. On the contrary, it seems to us the only reason. able and fair interpretation of which the will is susceptible, in order to effectuate the purposes of the testatrix towards the beneficiaries named in the will, is that we have given it.

The will itself and the testimony shows that the larger portion of the income-producing property was bequeathed and devised to William James Phillips. The special confi

dence and trust reposed in him brought to him the lion's share of her estate, but it likewise brought with it, under the will, the added burden, out of his own share, of providing for her aged consort as long as he should live.

The court, therefore, erred in its decree, and the same is reversed. The cause will be remanded for such other and further proceedings as may be found necessary according to law and not inconsistent with this opinion.

GIBSON V. SPIKES et al. (No. 311.) (Supreme Court of Arkansas. April 5, 1920.)

1. Constitutional law 47-Constitutionality not determined upon admissions of parties.

In determining the constitutionality of statutes, courts cannot act upon admissions, proof, or allegations made by the parties.

2. Constitutional law 70(1)-Sufficiency of notice of intention to apply for special act not reviewable.

Special Acts 1919, No. 43, validating assessments of road district created under Road Laws 1919, vol. 2, p. 1752, and curing other alleged defects in latter act, cannot be declared unconstitutional for insufficiency of the notice of the intention to apply for the passage thereof under Const. art. 5, § 26, since the sufficiency as to form and proof of publication of such notice is for the Legislature and is not reviewable by courts.

3. Highways 142-Act validating assessments made by commissioners not unconstitutional.

Special Acts 1919, No. 43, validating assessments made by commissioners of road district

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4. Highways 121-Legislature may levy as- above). The complaint alleges that the assessment.

The Legislature has the power to levy road improvement assessments subject only to the right of the owner to have an arbitrary abuse of that power reversed by the courts.

5. Highways 90 Special act approving plans previously made by commissioners not unconstitutional.

sessment of benefits in this road district was filed with the clerk of the county court on January 24, 1920; that act 43 was introduced in the house of the Arkansas General Assembly on January 27, 1920; that it passed the house on January 28, 1920, and was duly passed in the senate on January 30, 1920, and approved by the Governor on February 4, 1920; that the notice of the intention to apply for the passage of act 43 which was a special act was not published and exhibited in the General Assembly as required by section 26, art. 5, of the Constitution; that the notice is not sufficiently definite and certain to apprise the property owner or person inter

Special Acts 1919, No. 43, amending Road Laws 1919, vol. 2, p. 1752, creating road improvement district, held not violative of Const. art. 7, § 28, giving county courts exclusive original jurisdiction in all matters relating to roads, in so far as it approves of the plans of the commissioners; it being unnecessary for the plans of an improvement district to be approvested of the purpose of the act. ed by the county court.

Counsel rely upon the case of Booe v. Road Imp. Dist. No. 4, Prairie County, 216 S. W.

Appeal from Lawrence Chancery Court; 500, to sustain their contention that the conLyman F. Reeder, Chancellor.

Suit by John K. Gibson against S. E. Spikes and others, Commissioners. Decree of dismissal, and plaintiff appeals. Affirmed.

The Walnut Ridge-Alicia road improvement district was created by act No. 426 passed by the General Assembly of the state of Arkansas for the year 1919. See Road Acts of 1919, vol. 2, p. 1752. The general purpose of the act was to improve the public highway from the line between Jackson and Lawrence counties, near Alicia to Walnut Ridge in Lawrence county, Ark. The bill makes detailed provisions for the construction of the improvement and a levying of assessments to pay for the same. The third extra session of the General Assembly of the state of Arkansas for the year 1919 passed act No. 43, which was approved February 4, 1920, and which had for its object the validating of the assessments of the road district created under act No. 426, above referred to, curing other alleged defects in the first-mentioned bill and amending it in certain particulars.

Appellant filed a suit in the chancery court attacking the formation of the road district and the further proceeding by the commissioners under act 43 approved February 4, 1920, on the ground that said act is unconstitutional and void. The chancery court upheld the constitutionality of the act and the validity of the proceedings of the commissioners of the road district under it. A decree was therefore entered dismissing the complaint of appellant for want of equity. The case is here on appeal.

stitutional mandate with regard to giving notice of the intention to apply for the passage of special act 43 was not given.

[1] In the first place, it is insisted that the notice could not have been given as required by the Constitution because the complaint alleges that the assessment of benefits was filed on January 24, 1920, and the act was introduced in the General Assembly on January 27, 1920; and that section 7 confirms the assessment of benefits. Hence they contend the notice of the intention to apply for the passage of the act could not have been given 30 days as required by the Constitution. As pointed out in the opinion in the Booe Case, courts cannot act upon admissions, proof, or allegations made by the parties in determining the constitutionality of statutes. If this were so, laws could be made or abrogated by the allegations of the pleadings, by agreement of the parties, or by proof made during the trial.

[2] It was also held in that case that, when the notice required by the Constitution was given, the question of its sufficiency as to form and the proof of its publication were matters which were addressed to the Legislature and which could not be reviewed by the courts. Such is the holding of all our cases on this phase of the case since the decision in the case of Davis v. Gaines, 48 Ark. 370, 3 S. W. 184.

[3, 4] It is next insisted that the Legislature had no power to validate and confirm the assessments which had theretofore been made by the commissioners. Unless the assessment was arbitrary, the Legislature had the power to confirm and validate it. The Legislature had the power in the first in

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stance to have levied the assessment subject only to the right of the landowner to have an arbitrary abuse of that power reviewed by the courts, and it can therefore adopt as correct the assessment made by the commissioners as a reassessment by the Legislature. Coffman v. St. Francis Drainage District, 83 Ark. 54, 103 S. W. 179, and Davies v. Chicot County Drainage Dist., 112 Ark. 357, 166 S. W. 170.

of a municipality. Wherever the powers conflict, that of the board of commissioners must yield to the jurisdiction of the county court; but, as before stated, there arises no necessary conflict from the authority of the commissioners to improve the road. It is suggested that the county court, after the completion of the improvement, might exercise its jurisdiction over the road and destroy it. This may be true, but it is not to be presumed that a county court would abuse its power, and, if it should attempt to do so, remedies are available to prevent it. The county court, in the exercise of its power, is subject to legislative restrictions, and remedies may be and are afforded for appeals from judgments of the county courts abusing their power."

There is nothing in the record in the present case to show that the assessment of benefits made by the commissioners which was validated and confirmed by the special act in question was arbitrary or confiscatory and therefore amounted to a taking of the landowner's property without due process of law. [5] It is also contended that the approval of the plans of the commissioners by the county court was jurisdictional, and that the Legislature had no power in special act No. 43 to approve the plans theretofore made MATTHEWS v. WILLIAMSON. by the commissioners. The writer agrees with counsel for appellant that the action of the Legislature in this regard was unconstitutional as being in violation of article 7, § 28, of the Constitution, giving county courts exclusive original jurisdictron in all matters relating to roads. This court, however, after mature deliberation, has decided that it is not necessary for the plans of an improvement district to be approved by the county court, and there is no use in threshing over old straw.

It follows that the decree must be affirmed.

In the case of Easley v. Patterson, 218 S. W. 381, the court said:

"This statute does not, however, contain any provision that the plan for the improvement must be submitted to and approved by the county court, and it is contended that this constitutes an invasion of the county court's jurisdiction. We have never had that question before us for decision, and now for the first time the question is squarely presented whether or not an improvement district created by statute can be authorized to make improvements on public highways without obtaining the approval of the county court. Our conclusion is that the authority to improve a public highway does not invade the jurisdiction of the county court. The road is a public highway, but the improvement is for the betterment of the contiguous lands. The improvement of the road does not in any sense constitute an interference with the general control of the county court over public highways. thority of the board of commissioners is to bring about a betterment of the highway, and not a detriment. The authority of each body -that is to say, the board of commissioners and the county court-may be exercised without hindrance to the other. This is illustrated by the decision of this court in the case of Pulaski Gas Light Co. v. Remmel, 97 Ark. 318, 133 S. W. 1117, where we held that there was no conflict between the authority of a board of improvement to pave a street and the general authority of the city council over the streets

The au

(No. 313.)

(Supreme Court of Arkansas. April 5, 1920.) 1. Judgment 497 (3)-Recital of service conclusive on collateral attack.

Decree foreclosing state's vendor's lien against internal improvement land for unpaid purchase money under Gantt's Dig. §§ 39943998 (in force at time of foreclosure), reciting that purchasers had been duly notified of the pendency of the suit as required by law and had failed to answer, plead, or demur, held valid in suit to quiet title as against contention that sheriff's return failed to show that one of the purchasers was not found in the county though service was by publication, and that proof of publication of the warning order failed to show that it was published once each week for four consecutive weeks as required by such statutes; the recital in decree that purchasers were served as required by law being conclusive on such collateral attack, and it being presumed that the court heard sufficient evidence upon which to base its findings.

2. Public lands 66—Payment of price in levee bonds at lien foreclosure sale held not to preclude vesting of title.

That purchaser at foreclosure sale of state's vendor's lien against internal improvement land paid purchase price in levee bonds did not preclude vesting of title in purchaser by reason of invalidity of payment, notwithstanding Gantt's Dig. § 3983 (now Kirby's Dig. § 4913), providing that all lands sold on credit shall remain property of state until full payment of purchase money; the effect of the invalidity of payment being merely to give the state lien on the land for the purchase money. 3. Public lands 66—Invalidity of payment to state for land in levee bonds held cured.

Though payment of purchase money for land sold at foreclosure of state's vendor's lien against internal improvement land was void because made in levee bonds, purchaser's grantee is entitled to have title quieted under Gen. Acts 1919, p. 174, confirming such sale, and

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(220 S. W.)

authorizing the commissioner of state lands to execute deeds to owner and quiet title of the state in the land.

4. Public lands 66-Statute curing invalidity of payment in levee bonds held valid.

Gen. Acts 1919, p. 174, confirming sale of land formerly owned by the state in which the sale was conducted pursuant to a decree of the Pulaski chancery court in favor of the state condemning lands for sale to pay unpaid purchase price and in which the sales were made for a price paid in Arkansas levee bonds, held valid.

Appeal from Miller Chancery Court; pointed by the court for that purpose. The James D. Shaver, Chancellor.

HART, J. (after stating the facts as above). It is the contention of counsel for the defendant that the decree rendered by the Pulaski chancery court in 1873 in the case of State v. Hempstead and Jett, seeking to foreclose the lien of the state against them A decree in favor of the state was entered for the unpaid purchase money, is absoluteof record on December 2, 1873. The decree ly void. The statute authorizing proceedings recites that the defendants wholly failed to by the state for the foreclosure of land where plead, answer, or demur within the time pre- the land was sold on a credit may be found scribed by law. On the 10th day of April, in Gantt's Digest, §§ 3994-3998.

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Section 3994 of Gantt's Digest provides that if the return upon a process directed to the county in which the land is located shows that the defendant is not found in such county, or upon the affidavit of some credible person that the defendant is a nonresident of the state, the clerk of the chancery court, upon the application of the Attorney General, shall make and enter on the record an order which shall contain the title of the suit, the date and amount of the note sued on, and a description of the land upon which the lien is sought to be enforced, and warn the defendant to appear and make defense thereto on the first day of the next term of such court that commences more than 60 days from the date of such order.

Section 3995 provides that the publication of such warning order once in each week for four consecutive weeks in an authorized newspaper published at the seat of government shall be equivalent to personal service.

It is the contention of counsel for the defendant that the decree of the Pulaski chancery court is void because the record shows the only service had was by publication, and the return of the sheriff only shows that Hempstead was not found in Lafayette county and does not show that Jett was not found there. Counsel also contends that the decree is void because the proof of publication of the warning order fails to show that it was published once each week for four consecutive weeks as required by the statute. [1] The contention of counsel is not sound and is contrary to the previous decisions of this court bearing on the question.

that sufficient and competent evidence was before the court to sustain its findings as to the publication of notice. Hence the court held that a decree in an overdue tax proceeding was not void on collateral attack, because the affidavit of publication of the warning order failed to state that the affiant was publisher of the paper, that it was printed in the county named in the affidavit, and that it had a bona fide circulation therein for one month before the date of its first publication.

In Whitford v. Whitford, 100 Ark. 63, 139 S. W. 653, it was held that in case of service of process by publication, if no statute forbids, parol evidence may be received to prove publication of the warning order.

The court further held that, if a decree does not exclude the conclusion, it will be presumed that sufficient and competent evidence was before the court to sustain a finding as to the publication of a warning order.

The court further held that, while the affidavit of the publisher shall be sufficient evidence of the publication of the warning order, it is not the exclusive evidence of that fact.

Again in Taylor v. King, 135 Ark. 43, 204 S. W. 614, in discussing the validity of a decree in a foreclosure suit to enforce a vendor's lien for the purchase money against a tract of land, the court said that, the decree having recited that the parties were duly served with summons, the allegations and proof of the defendants to the effect that summons was not served upon them as required by law could not prevail against the decree in a collateral attack.

In the case of McLain v. Duncan, 57 Ark. 49, 20 S. W. 597, which was a proceeding by The amended decree in the foreclosure suit the state to foreclose its lien against the pur- of the State v. Hempstead and Jett, in the chaser of internal improvement lands, it was Pulaski chancery court in 1873, recites that held that a decree, in a proceeding by con- the defendants had been duly notified of the structive service, which recites that notice pendency of the suit against them as requirwas given as required by the statute, with-ed by law and had failed to answer, plead, out specifying how the notice was given, is or demur. The present case is a collateral valid against collateral attack. The court said that the law does not require the evidence of publication to be made a part of the record, either by entering it at large on the record, or by filing it. The publication in that case was required to be made in two counties, and the record contained an affidavit showing publication in one county only. The court held that the mere absence of an affidavit as to the latter publication could not be allowed to overcome the presumption, arising from the recitals of the decree, that the court's finding as to the notice was made upon sufficient competent evidence.

Again, in Clay v. Bilby, 72 Ark. 101, 78 S. W. 749, 1 Ann. Cas. 917, the court said that in case of service by publication, there being no statute forbidding it, parol evidence might be received to prove publication of the notice; and that, if the decree did not exclude the conclusion, the presumption was

attack on that decree, and the recital of the decree in that case that the defendants were notified of the pendency of the suit against them, as required by law, is conclusive of that fact in the present case. The presumption is that the court heard sufficient evidence upon which to base its finding. It is not a case where the finding of the decree is contradicted by the face of the record.

Notwithstanding that the affidavit of the secretary of the newspaper tends to contradict the recitals of the decree, yet it is not sufficient for that' purpose. The reason is that, while it is evidence of the publication of the warning order, it is not the exclusive evidence of that fact, and the presumption is that the court heard other evidence which sustained the recitals in the decree.

It is also true that the warning order in the record shows that the service was by publication and that the return of the sher