(222 S.W.) by the commissioners of the district, and relief against the assessment list alleged to be inaccurate and unintelligible is sought. The injunction granted by the judge in vacation was temporary, and appears to have been intended only as an incident to the relief sought in the complaint to preserve the status quo until the cause could be finally heard. If the court had jurisdiction to hear and determine the cause on the facts stated and grant the relief sought, it could temporarily stay proceedings by injunction as an incident to the exercise if its jurisdiction. The real question in the case is whether or not the circuit court had jurisdiction to grant the relief sought in the complaint. [4] The functions of the board of assessors in assessing benefits and the board of commissioners in adjusting them on complaint of the property owners is not judicial in the ordinary sense, but it is in the nature of a legislative power. Pine Bluff Water & Light Co. v. City of Pine Bluff, 62 Ark. 196, 35 S. W. 227; Mo. Pac. Ry. Co. v. Izard County Highway Improvement District, 220 S. W. 452. [5, 6] Boards created as special tribunals for certain purposes may, and sometimes do, act in a judicial or quasi judicial capacity, and when so acting their proceedings may be reviewed on certiorari (State ex rel. v. Railroad Commission, 109 Ark, 100, 158 S. W. 1076; Hall v. Bledsoe, 126 Ark. 125, 189 S. and it is not effective now, for the purpose of retaining in the circuit court matters exclusively cognizable in equity, for the jurisdiction transferred to courts of chancery in the establishment thereof was such jurisdiction as the courts of chancery properly exercise at the time of the adoption of the Constitution. German National Bank v. Moore, 116 Ark. 490, 173 S. W. 401. This transfer of equity jurisdiction to separate chancery courts was complete, and left no vestige of that jurisdiction in the circuit courts. Such was the interpretation given by this court in the case of Merwin v. Fussell, 93 Ark. 336, 124 S. W. 1021, where we said: "And under these provisions of the Constitution and the statute a citizen and taxpayer has the right to obtain from a court of equity an injunction against the collection of an illegal or unauthorized tax." See, also, Moody v. Lowrimore, 74 Ark. 421, 86 S. W. 400; Harrison v. Norton, 104 Ark. 16, 148 S. W. 497. [7] The framers of the statute creating this improvement district might have provided, as has been done in many similar statutes, for appeals from the board of commissioners to the county court and thence to the circuit court, which would have given the circuit court the jurisdiction to review the assessments. But that was not done in the framing ings in a court of equity, to be begun within of this statute, which provides for proceed a specified time. It clearly falls legitimately within the ordinary equity jurisdiction, because the assessments constitute a lien on real estate. We are of the opinion, therefore, that since the statute provides for no review of assessments by the circuit court on appeal, and, on the contrary, provides exclusively for relief in the chancery court, there is no authority for review by the circuit court on W. 1041); but in the matter now before us the commissioners do not act in such capacity. The acts of the commissioners not being of a judicial or quasi judicial nature, they are not subject to review on certiorari, which is limited to review of judicial or quasi judicial proceedings. Pine Bluff Water & Light Co. v. City of Pine Bluff, supra; State ex rel. v. Railroad Commission, 109 Ark. 106, 158 S. W. 1076. Injunctive relief is purely a matter of equitable jurisdiction, which, under the Constitution of this state, falls within the jurisdiction of separate chancery courts as now established. Article 7, § 15, of the Constitution, provides that "until the General Assembly shall deem it expedient to estab-county court which were reviewed by the cir lish courts of chancery the circuit courts shall have jurisdiction in matters of equity." We are of the opinion that the power of the Legislature in establishing separate chancery courts therefore swept away the jurisdiction of the circuit court in matters exclusively cognizable in courts of equity. certiorari. Counsel also rely on the decision in Pritchett v. Road Improvement District, supra, as sustaining their contention, but in that case it was void orders and judgments of the cuit court on certiorari. In the case of Merchants' Bank v. Fitz gerald, 61 Ark. 607, 33 S. W. 1064, Mr. Justice Battle, speaking for the court, concisely defined the office of the writ of certiorari, as follows: "(1) Where the tribunal to which it is issued has exceeded its jurisdiction; (2) where peal, but lost it through no fault of his own; and (3) in cases where it has superintending control over a tribunal which has proceeded illegally, and no other mode has been provided for directly reviewing its proceedings." Counsel for respondents rely upon the stat-the party applying for it had the right of apute (Kirby's Digest, § 3966), which provides that "the judge of the circuit court may grant injunctions and restraining orders in all cases of illegal or unauthorized taxes and assessments by county, city or other local tribunals, boards or officers." This statute, however, antedated the adoption of the Con- This being true, the circuit court has no stitution of 1874, and the establishment of jurisdiction over the subject-matter set forth separate chancery courts pursuant thereto, in the complaint filed in the proceedings be low. The court being without jurisdiction | it appears that the subordinate tribunal has prohibition is the appropriate remedy to in some appropriate method had its attention stop further proceedings. The writ of pro- called to its supposed absence or excess of hibition is therefore awarded in accordance jurisdiction, and has nevertheless, indicated its with the prayer of the petitioner to prevent purpose to proceed, or it in some other manner the circuit court from further proceeding in sufficiently appears that an application to that court must prove unavailing." the matters under consideration. WOOD, J. (dissenting). The authorities are practically unanimous in holding that the high prerogative writ and extraordinary remedy of prohibition "is to be used with great caution and forbearance, for the furtherance of justice, and to secure order and regularity in judicial proceedings, and should be issued only in cases of extreme necessity." 22 R. C. L. p. 5, § 4, and cases there cited. There is no necessity, as we see it, for the issuance of the writ in this case; and, besides, the issuance at this juncture is wholly premature. The circuit court has had no opportunity to determine whether it had jurisdiction of the subject-matter set forth in the complaint of McDonald et al. Every court has the power to determine in limine whether it has the jurisdiction over the subjectmatter of the controversies brought before it. To deprive the circuit court in advance of the opportunity and right to decide whether it will entertain jurisdiction is tantamount to an assumption of original jurisdiction by this court, which is contrary to article 7, § 4, of the Constitution. It has been the doctrine of this court since 1842 that no prohibition lies from this court to an inferior court until a suggestion of its want of jurisdiction, properly verified, has first been presented to the inferior court. There has been no deviation from this rule until the present case. Williams, Ex Parte, 4 Ark. 537, 38 Am. Dec. 46; Blackburn, Ex Parte, 5 Ark. 21; McMeechen, Ex Parte, 12 Ark. 70; City of Little Rock, Ex Parte, 26 Ark. 52; State ex rel. Butler v. Williams, 48 Ark. 227, 2 S. W. 843; Reese v. Steel, 73 Ark. 66, 83 S. W. 335, 1136. Among the numerous cases cited by the eminent author and annotator in support of the text are cases from our own court. Further on in the note to the case the exception recognized in the majority opinion is referred ed to support it, but none from Arkansas. to, and some cases from other courts are cit law writer as Judge Freeman as to the efOf course, the opinion of even as learned a fect of our former decisions is not binding entitled to the utmost respect. If he is coron this court. But certainly his opinion is rect, and we believe he is, in classifying our cases in line with those holding that the writ of prohibition will not lie unless the inferior court has first had its attention directed to the matter, and if, indeed, such has been the three-fourths of a century, and if it is in acestablished rule of practice in this state for in the United States, then why change the cord with the practice generally prevailing rule, or ingraft upon it an exception which virtually nullifies it. Stare decisis should Without stare decisis, "it would be difficult, preclude any departure or innovation here. if not impossible, to build up and preserve any valuable system of jurisprudence." Amour Hunt, Ex Parte, 10 Ark. 284. Controversies should not be opened every time a new judge takes his seat. Coates v. State, 50 Ark. 333, 7 S. W. 305. "It is better to let matters of practice remain settled than to disturb them." Miller v. Fraley, 21 Ark. 38. "Public policy requires that decisions of courts of last resort, which have been followed and acted upon, shall be adhered to, unless great injury and injustice would result.” In Williams, Ex Parte, supra, this court Rhea v. State, 104 Ark. 162, 147 S. W. 463. said: "The rule was, at common law, that no prohibition lay to an inferior court, in a cause arising out of their jurisdiction, until that matter had been pleaded in the inferior court, and the plea refused. It must appear, in the suggestion [to the Supreme Court], that the plea was verified, and tendered in person, during the sitting of the inferior court." * The case of Russell et al. v. Jacoway, Judge, 33 Ark. 191, is not in conflict with the other decisions of this court. In that case the issue we have here was not raised. There was no suggestion in the Supreme Court to the effect that no objection had first been made in the inferior court to the exercise of jurisdiction, and that the circuit court had not been given an opportunity to determine The rule is announced in the same lan- that question. On the contrary, the opinion guage in all the other cases. in Russell et al. v. Jacoway, Judge, supra, This doctrine, we believe, is in accord with shows that the Supreme Court disposes of the the great weight of authority. In an exhaus-case on the theory that the plea objecting to tive note to State v. Superior Court, 111 Am. St. Rep. 925-965, Judge Freeman says: "Whether any special rule of court has been promulgated on this subject or not, undoubtedly the practice generally prevailing in the United States is not to take any action until the jurisdiction of the inferior court had been first properly presented to that court and refused. The court said: "For the circuit court to assume to determine, in the first instance," etc. Again: "But by the circuit court's assumption of jurisdiction in the case, (222 S.W.) all further proceedings of the county court | ic, let us suppose that before the September have been prevented," etc. But the majority of the court, while recognizing the rule as above announced by the former decisions of this court, nevertheless hold that there is an exception to the rule where the circuit judge, before whom the cause must be heard when the court subsequently convenes, has in vacation overruled an objection to his jurisdiction to proceed in the matter then pending before him, and which must be heard by the court later, and where, as in this case, in this formal response to the application for writ of prohibition, he still maintains that the circuit court has jurisdiction. This holding is not correct, for the reason that the circuit judge in vacation and the circuit court are entirely different functionaries. The orders when made by the circuit judge in vacation are not final, but subject to review and change by the circuit court itself when it subsequently convenes, whereas the orders of the circuit court when final are subject to review and correction by the Supreme Court. Application was made to the circuit judge in vacation for writ of certiorari to bring up and to quash the assessment of benefits made by the commissioners and to restrain them from further proceeding with the improvement. Conceiving that he had jurisdiction to issue the writ of certiorari reviewable by the circuit court, and in the meantime to issue a restraining order, the circuit judge proceeded to exercise such jurisdiction. He issued the writ of certiorari in April returnable to the ensuing September term of the court, and in the meantime restrained further proceedings by the commissioners of the district. Now, who can say that the circuit court when it convened at the September term would not, upon a plea to its jurisdiction, after a consideration of such plea, have held that it had no jurisdiction of the matters presented in the application for certiorari? Who can say that the circuit court, after a careful consideration, would not have quashed the writ issued by the judge in vacation? Who can say that the circuit court would not have refused to quash the assessments of benefits made by the commissioners, and that the court would have interfered in any manner with the further progress of the work of the improvement district? What prophetic ken has this court of what would be the decision of the circuit court of Craighead county several months in advance of the time when that decision was to be rendered? Who has the omniscence to foretell that the circuit court, although presided over by the same judge, would not entertain different views, and decide that it had no jurisdiction? To show the inaccuracy of the position of the majority and the unsoundness of its log222 S.W.-5 term of the court convenes the Hon. R. H. Dudley, the respondent herein, and the judge who issued the writ of certiorari and the temporary restraining order, dies, or that he is unavoidably detained by illness or other cause, all of which contingencies are contemplated by article 7, § 21, of our Constitution. Suppose that under this constitutional provision a different judge has been elected to preside over the court, and that such judge entertains entirely different views from his predecessor, and that his views are in harmony with the appellant's contention herein; could it then be said that the circuit court had had an opportunity to decide the issue of its jurisdiction, and had decided that issue adversely to appellant's contention? Could it then be said that there was any excuse, much less necessity, for the writ of prohibition? Could it then be decided by this court that the lower court had determined that it had jurisdiction when in fact no opportunity had been given that court to pass upon the question, and when, if the matter had been presented to it, it would itself have decided that it had no jurisdiction? It occurs to us that the only answer to the above questions demonstrates the fallacy of ingrafting the exception, now proposed and adopted by the majority, upon the rule heretofore announced and so long adhered to by this court. A rule of practice that would not stand the test and apply to any and all cases that might arise under article 7, § 21, of our Constitution, is unsound (besides being unconstitutiona), and should not be approved by this court. The rule announced in Williams, Ex Parte, supra, is a sound one. It preserves the proper consideration and deference for the opinions and judgment of the inferior tribunal. Under the so-called exception no allowance is made for a possible, or even probable, change of viewpoint upon the part of the judge himself who reviews in term time his own vacation orders. This is manifestly unjust and unfair to the inferior tribunal, which should at least be given the opportunity to first decide upon the question of whether it has jurisdiction to proceed. We are convinced that there is no exception to the rule in this state, and that the majority opinion, therefore, results in overruling the cases heretofore mentioned; and that the issuance of the writ, under the circumstances here detailed, is an exercise of original jurisdiction by this court not contemplated by our Constitution. For the above reasons Mr. Justice HART and I dissent from that part of the opinion which holds that the writ of prohibition will lie. UNION COTTON CO. v. BONDURANT. (Court of Appeals of Kentucky. May 25, 1920.) 1. Damages 40(2)-Speculative profits not recoverable. Loss of profits remote, uncertain, contingent, speculative, and conjectural is not allowed as a basis for damages from breach of contract. 2. Damages 23-Profits reasonably certain and within parties' contemplation are recoverable. Where breach of contract is involved, loss of profits is a proper element of damages where they can be shown, if not with absolute, then with reasonable certainty, and when it may reasonably be considered parties had such loss in contemplation. 3. Damages 40(2)-Profits from operation of cotton gin sufficiently certain to be recoverable. Anticipated profits, from operation of cotton gin leased for a year, during the ginning season of from 60 to 90 days, held sufficiently ascertainable to be recoverable by lessee in his action for lessor's breach of contract by failing to put gin in proper repair. 4. Damages 208 (7)-Whether plaintiff failed to minimize damages held for jury. In action by lessee of cotton gin for breach by lessor through having failed to put gin in proper repair, whether plaintiff lessee failed to minimize his damages by himself making any necessary repairs held for jury. 5. Attachment 197-Judgment for sale of several lots improper in absence of showing sale of all necessary. Under rule that no more of defendant's realty should be sold in satisfaction of debt than necessary for purpose, attachment on seven separate lots of defendant designated by numbers should not have been sustained and lots directed to be sold in satisfaction of judgment in absence of showing either by return of officer who levied attachment or by other evidence that lots should or must all be sold together. Appeal from Circuit Court, Fulton County. Action by C. T. Bondurant against the Union Cotton Company. From judgment for plaintiff for the recovery of damages, and from judgment sustaining attachment on de fendant's property and adjudging sale of it to satisfy the money judgment, defendant appeals. Judgment for recovery of damages affirmed, judgment sustaining attachment re versed, and cause remanded. Bondurant, was adjudged to recover from appellant, Union Cotton Company, the sum which sustained the attachment upon the of $1,200, and the other was a judgment property of the appellant and adjudged a sale of it to satisfy the judgment. The appellee, C. T. Bondurant, brought this action against the appellant, Union Cotton Company, averring that the latter had broken a contract between him and it by which he had leased from it a cotton gin and appurtenances for a term beginning July 1, 1916, and ending June 30, 1917, and for which he had agreed to pay it the sum of $1,200. The negotiations between the parties had commenced by parol, but were completed by an exchange of letters, and culminated in the making of a contract which was reduced to writing and subscribed by each of the parties. The writing contained a clause as follows: "The Union Cotton Company agrees to put the cotton gin machinery and scales in good working condition, said work to be inspected and accepted by C. T. Bondurant as soon as repairs are completed, not later than August 1, 1916." The written memorial of the contract was prepared in duplicate and subscribed by appellant and forwarded by mail to appellee, who in turn subscribed the copies, and, retaining one, returned the other to appellant, and about the same time forwarded to it three negotiable promissory notes by which he promised to pay the rental in three equal installments, October 1st, January 1st, and April 1st following. The appellant accepted the notes, and before either of them became due assigned them to another. While it is insisted by appellant upon this appeal that the contract, by reason of a letter from appellee which accompanied the return of the written contract to appellant and the reply thereto by appellant, was that the appellee should make any repairs necessary after the 1st of August, and after repairs had been made by appellant, previous to that time, and at his own cost. This contention does not appear in the pleadings, which admit the contract touching the duty of putting maworking condition to be as stated in the chinery of the gin and the scales in good above-quoted clause of the writing subscribed by both parties, and besides neither party tion placed upon this clause of the writappears to have ever accepted the construcing by the other in the letters referred to, Robbins & Robbins, of Mayfield, for ap- but to have proceeded under the contract as pellant. written and subscribed. W. J. Webb, of Mayfield, for appellee. HURT, J. In this action there has been an appeal from two judgments of the circuit court, one by which the appellee, C. T. The breach of the contract upon which appellee relied for the recovery of damages was the alleged failure by appellant to put the machinery of the gin, which was greatly in need of repair, into good working condi (222 S.W.) tion, either before August 1st or at any two grounds. The first of the grounds retime thereafter, and hence that, under the lied upon is that the damages sought, and terms of the contract, the repairs had never for which the appellee recovered a judgment, been in such a state of completion as to re- were on account of the loss of profits, which quire him to accept them as having put the character of recovery is not allowed, beplant in a good working condition, and that cause the evidence of such recovery is unon that account he had never done so, and certain, contingent, and speculative. It may that, although appellant had in the first days be conceded that the only element of damage of July placed workmen in repairing the which appellee, by his petition, sought to plant, it had never so repaired it as to put recover, was the profits which he could and it in good working condition, and that he would have realized from the ginning of had so notified the agent of appellant in cotton during the ginning season, within the charge of the work that he would not ac- terms of the lease, if the plant had been put cept the repairs as made as putting the plant into good working condition by appellant, and in the condition required by the contract, which he lost by the failure of appeland thereafter appellant never complied lant to comply with its contract in that rewith its covenant to make the necessary re- spect. He also averred that, when the conpairs, and appellee did not know that the tract was made for the lease of the propplant was not in good working condition until erty, appellant knew his purpose in procurhe undertook to operate it after the ginning ing the lease was to operate the gin during season for 1916 had commenced, when he the following season for ginning cotton. He found that the plant was entirely unfit for testified upon the trial to having given apginning purposes and not in working con- pellant such information of his intention durdition, and this was at so late a period in ing the negotiations, and this testimony was the season that he was not able to secure not objected to nor the truth of the stateor provide himself with other means of gin- ment denied in any evidence. The court inning during that season, nor to have repaired structed the jury that, if it was contemplatthe appellant's gin, if he had desired to do ed by the parties when the contract was made so, and because of that fact he lost profits that appellee was leasing the property for which he could and would have made in the purpose of operating the gin and realizginning cotton during the season which ing profits therefrom, and appellant failed amounted, as he claimed, to the sum of to put the plant in reasonably good working $1,800. Upon the other hand the appellant condition before August 1st, and appellee was denied that it failed before August 1st, to put thereby deprived of the use of it for ginthe plant in good working condition, and ning purposes during the season of the fall claimed affirmatively that it did put the ma- of 1916 and the winter of 1917, and was chinery of the gin and the scales in such con- thereby prevented from the ginning of cotdition and had them in such condition by ton which he could and would have ginned the 14th day of July, at which time the but for such failure on the part of appelappellee accepted the plant as having been lant, to find for appellee such a sum as put in the condition required by the con- would reasonably compensate for the loss tract. The appellant denied all the aver- of the profits, if any, which he could and ments of damages made by the appellee, would have realized from the ginning of and also set up a counterclaim for damages, cotton, less the expense incident to it. The based upon the stipulation in the contract | appellant, as a ground for its motion for a that appellee, at the end of the term of directed verdict, as well as of objection to the lease, would return the property to appellant in as good condition as he received it, ordinary wear and damages from fire excepted, and then, in violation of the stipulation, he had negligently permitted it to become greatly injured and damaged in the sum of $1,000. The affirmative allegations of appellant's answer was by agreement, controverted upon the record. The issues raised by the pleadings were determined by the jury under instructions which submitted the theory of each party to it, and resulted in a finding for appelice in the sum of $1,200 and a judgment of the court accordingly. The Union Cotton Company appeals from the judgment, and urges that the court erred in overruling its motion for a directed verdict at the close of the evidence for appellee and at the close of all the evidence upon the instruction given, insists that damages are not recoverable on account of the loss of profits. [1, 2] It is true that the loss of profits which are remote, uncertain, contingent, speculative, and conjectural is not allowable as a basis for damages. Formerly damages on account of loss of profits were not allowable at all, but the principle now governing the subject is that the right to recover damages on account of loss of profits is determinable by the same principles as the recovery of other damages are. Where a breach of a contract is involved, loss of profits is a proper element of damages, where they can be shown, not with absolute, but with a reasonable, degree of certainty, and when it may be reasonably considered that when the contract was made the parties had in contemplation the loss of profits as an element for |