276 S.W. 2 (Ark. 1925), 82, County Board of Education v. Austin

• Judge: WOOD, J. MCCULLOCH, C. J., and SMITH, J., dissenting. SMITH, J., concurs. MCCULLOCH, C. J., and SMITH, J., dissenting. MCCULLOCH MCCULLOCH, C. J., (dissenting). SMITH, J., concurs.
• Parties: COUNTY BOARD OF EDUCATION v. AUSTIN
• Docket Number: 82
• Citation: 169 Ark. 436,276 S.W. 2
• Court: Arkansas Supreme Court
• Date: 29 June 1925

Page 2

276 S.W. 2 (Ark. 1925)

169 Ark. 436

COUNTY BOARD OF EDUCATION

v.

AUSTIN

No. 82

Supreme Court of Arkansas

June 29, 1925

Appeal from Lonoke Chancery Court; John E. Martineau, Chancellor; reversed.

Decree reversed, and cause remanded.

Trimble & Trimble, for appellants.

W. J. Waggoner and Chas A. Walls, for appellees.

WOOD, J. MCCULLOCH, C. J., and SMITH, J., dissenting. SMITH, J., concurs.

OPINION

Page 3

WOOD, J.

Act 173 of the Special Acts of 1919, page 294, is an act entitled "An act establishing and fixing the salaries and fees of the county officers for Lonoke County, Arkansas, and for other purposes." The first eleven sections of the act fix the salaries and fees of the county officers. The 12th section provides that the sheriff and collector and other officers designated therein shall charge and collect the same fees and commissions as are now, or may hereafter be, allowed by law, and shall make a true report and settlement on [169 Ark. 437] the first day of the quarterly term of the Lonoke County Court, paying all fees, emoluments and commissions collected by them, or which they should have collected during the preceding quarter in excess of their respective salaries and fees allowed them, into the county treasury, after deducting the amounts of their respective salaries.

Section 13 of the act requires that the officers designated shall, at each and every settlement, pay over to the treasury the funds received by them in excess of their salaries, etc.

Section 14 provides that each of the officers designated shall keep a well bound book showing the amount of fees, emoluments and commissions earned and expended and received by them, etc.

Section 15 makes the failure on the part of the officers designated to comply with the requirements of the act a misdemeanor and prescribes the proceeding and punishment against those found to be delinquent.

Section 16 provides that the county judge shall furnish the salaried officers of the county with records, stamps, stationery and equipment necessary for the proper conduct of the offices; the expense to be paid out of the county general fund.

Section 17 is as follows: "That all money paid into the treasury arising from fees, emoluments and commissions, collected by the county officers under the provisions of this act, shall be paid into the county general fund.

Section 18 fixes the compensation for grand and petit jurors during the years 1919 and 1920.

This action was instituted in the chancery court of Lonoke County by the county board of education of Lonoke County and one Davis, a citizen and taxpayer, against the county judge, treasurer and collector. Plaintiffs set out the provisions of the act as above set forth and alleged in substance that the collector had collected during the years 1919 to 1923, inclusive, the sum of $ 37,723.72 in fees, emoluments and commissions, of [169 Ark. 438] which the sum of $ 15,722.76 was a school fund; that the pro rata share due by the school fund to the collector's salary amounted to $ 8,320, leaving a balance due the school fund in the hands of the county treasurer the sum of $ 7,402; that the treasurer had collected in fees and commissions for the years 1919 to 1923, inclusive, the sum of $ 27,825.98 of which $ 16,219.90 were school funds; that the pro rata share due by the school fund to the salary of the treasurer was $ 6,441.26, leaving a balance due in the hands of the treasurer after paying his salary the sum of $ 9,571.64 belonging to the school fund. Attached to the complaint were exhibits showing the amounts that it was alleged

Page 4

should be paid to the school fund after the payment of the treasurer's and collector's salaries in the sum of $ 16,974.40.

It was alleged in the complaint that section 17 of act 173, supra, is unconstitutional and void; that it was the duty of the board of education to apportion all school funds as provided by law in conformity with the regulations of the said board, and to place to the credit of the common school fund of the county all school funds in the county treasury, to be apportioned among the school districts of the county. It was alleged that the taxes of 1923 were sufficient to cover and pay the illegal exactions and overplus due the said school fund for the years 1919-1923, inclusive, as shown by the settlements made and exhibited with the complaint; that the bulk of the taxes for 1924 would be paid into the treasurer's office to the credit of the general fund as heretofore, and all commissions earned by the collector and treasurer in excess of their salaries, including the school funds, would be passed to the credit of the county general fund.

The prayer of the complaint was that the county judge be permanently restrained from ordering the treasurer to transmit the school funds in his hands to the credit of the county general fund, and that, upon final hearing, the treasurer be directed to hold the school funds in his hands for apportionment by the county board of [169 Ark. 439] education among the school districts of the county, and that a master be appointed to state an account of the amount due the school fund by the county general fund for the years 1919-1923, inclusive.

The answer of the officers, by its admissions and denials, raises the issue as to the constitutionality of act 173 of the Acts of 1919. The answer states that, under the terms of the act requiring them to pay into the county general fund all fees, emoluments and commissions collected by them in excess of their salaries, they had complied with the act by paying such funds into the county general fund; that they had made settlements with the county court in accordance with the statements, which they filed and made exhibits to their answer, which exhibits had been approved by the county court, and that there was no liability on their part. It was alleged in the answer that the county judge, if act 173 is finally adjudged unconstitutional or partly so, will appropriate such sums as may be finally adjudged to be due the school fund, if any, for the purpose of restoring said funds to the school fund of Lonoke County. The county judge set up that the chancery court had no jurisdiction to enter any sum whatever as a judgment against the county. He further alleged that he had directed the county treasurer and collector to hold intact the fees and commissions collected by them on the school fund. The officers joined in the prayer that the court fix the basis for the distribution of the funds now enjoined in the hands of the county collector and county treasurer.

The trial court, upon the pleadings and exhibits thereto, found that act 173, supra, was constitutional and dissolved the temporary restraining order, and ordered that all fees collected by the collector and treasurer in excess of their respective salaries be paid into the county general fund as provided by that act. The court thereupon entered a decree dismissing the complaint for want of equity, from which is this appeal.

1. The chancery court had jurisdiction to restrain the county officers from appropriating or using the [169 Ark. 440] school funds in their hands for any other purpose than the support of schools. See Amendment No. 9, Constitution of 1874, Crawford & Moses' Digest, p. 133; also article 16, § 11, Constitution. The complaint, in substance, alleged that there had been a diversion of school funds by the county judge, the collector, and the treasurer for the years 1919 to 1923, inclusive, and that, unless these officers were enjoined, there would be a diversion also of the school funds in their hands for the year 1924 by the payment of school funds in their hands in excess of their salaries into the county general fund where the same would be used for general county expenses, such as public improvements, etc, and not specifically for school purposes; that the officers named claimed that they were authorized to handle the school funds in the manner indicated by the provisions of act 173 of the Special Acts of 1919, which are set forth in the complaint, and that so much of said act as provides for the placing of all fees, emoluments, and commissions, received by these officers into the general county fund to be used for general county purposes was unconstitutional and void.

The answer...