Arkansas Ass'n of County Judges v. Green

Decision Date19 September 1960
Docket NumberNo. 5-2145,5-2145
Citation338 S.W.2d 672,232 Ark. 438
PartiesARKANSAS ASSOCIATION OF COUNTY JUDGES, Appellant, v. Ira GREEN et al., Appellees.
CourtArkansas Supreme Court

A. James Linder and William S. Arnold, Hamburg, for appellant.

Reed Williamson, Ray Canady, Jacksonville, Charles R. Garner, Fort Smith, for appellee.

WARD, Justice.

This is a class action brought in the Chancery Court by citizens and taxpayers of Ashley County to enjoin the County Judge of said county from paying dues (and making other contributions) to the Arkansas Association of County Judges, and asking for a refund of such payments theretofore made. The trial court granted the injunctive relief and rendered judgment for the previous payments, but refused authorization of execution against the association. The association now prosecutes this appeal.

The pertinent facts are not in dispute.

The defendants in the class action, filed January 29, 1957, were: W. T. Higginbotham, County Judge of Ashley County (hereafter referred to as Judge); The Arkansas Association of County Judges (a non-profit corporation hereafter referred to as Association), and; Arthur Carter, Secretary of the Association (hereafter referred to as Secretary).

The complaint contains, in substance, the following essential allegations: (a) The Association is a non-profit corporation organized February 10, 1948; (b) On January 29, 1957, the Secretary (both individually and acting for the Association) conspired with the Judge to fraudulently, willfully and maliciously deprive the taxpayers of Ashley County of county funds in that he presented a claim in the amount of $50, on behalf of the Association, for 'Magazine Legislative Work'; (c) All said mentioned parties knew the claim was false, fraudulent and illegal, and that it constituted a fraud on the taxpayers of Ashley County; (d) The Judge (individually and as County Judge), knowing the claim to be false, approved the same and directed the issuance of a warrant in payment thereof; (e) As a direct and approximate result of the aforementioned transaction the Secretary, while acting on behalf of himself and the Association, unlawfully accepted and collected Warrant No. 101 in the amount of $50 from the Ashley County Clerk and thereafter presented said warrant to the County Treasurer, who paid the same contrary to law on January 31, 1957; (f) All the defendants knew at the time that the said $50 were to be used for them in the interest of said Association and were not to be used for any authorized or legitimate county purpose nor in payment of any goods furnished or service rendered to Ashley County; (g) The defendants will continue to conspire and to present illegal, false, and fraudulent claims in behalf of themselves and said Association, to Ashley County and the Judge will continue to allow said illegal claims unless enjoined by order of the court, and, therefore, plaintiff's remedy at law is inadequate, and; (h) Plaintiffs believe and allege that the defendants, acting together, have allowed and paid other false, fraudulent and illegal claims of the Secretary and the Association, and all of said defendants should be ordered to account to these plaintiffs for the use and benefit of themselves and all other citizens, residents and taxpayers of Ashley County for all money previously received by the Secretary and the Association. The prayer of the plaintiffs was that this court enjoin the defendants from presenting, allowing, paying and accepting payment for any and all such false, fraudulent and illegal claims; that they be ordered and directed to account to these plaintiffs for all similar funds heretofore received; that judgment be entered against the defendants in the amount of $50 plus any other such false and illegal claims, and; for such equitable and proper relief to which the plaintiffs may be entitled. (Emphasis supplied.)

Appellants filed a demurrer to the above complaint on the ground that the Chancery Court had no jurisdiction. Upon the demurrer having been overruled appellants filed an answer in which they admitted presenting the said claim for $50 and also admitted the payment of said sum and receipt thereof. All other allegations in the complaint were specifically denied. The answer further stated that the Judge, in allowing said claim, acted in his judicial capacity and his action thereon is not subject to review by the Chancery Court. Thereafter, and before the decree was rendered, the defendants filed an Objection to Judgment under the provision of Ark.Stats. § 27-615.

On hearing before the Chancellor it was shown that, in addition to the $50 item mentioned above other payments of a like nature, some of which were barred by the statutes of limitation, were also made to the Association. It appears that these payments were made for dues to the Association, for advertisement in the Association's magazine, and for 'legislative work'.

For convenience and clarity the points relied on by appellants for reversal will be discussed under the following classification and in the order named: (a) The Chancery Court had no jurisdiction; (b) The Objection to Judgment should have been sustained, and; (c) The claims were legal and should have been allowed.

(a) Jurisdiction. It is here argued that the County Court, in passing on a claim presented to it, acts in a judicial capacity, citing Hutson v. State, 171 Ark. 1132, 287 S.W. 398; Farmer v. Franklin County, 179 Ark. 373, 16 S.W.2d 10, and Logan County v. Anderson, 202 Ark. 244, 150 S.W.2d 197. It was pointed out that, under Article 7, Section 51 of the Arkansas Constitution and Arkansas Statutes, § 27-2001, the proper remedy is to appeal to the Circuit Court, citing the Anderson case supra; Ladd v. Stubblefield, 195 Ark. 261, 111 S.W.2d 555, and; Monroe County v. Brown, 118 Ark. 524, 117 S.W. 40. Appellants however concede some exceptions to the above rule particularly when an illegal exaction is involved and where the judgment of the County Court is procured through fraud, asserting that in this case there is no illegal exaction, or illegal tax involved and also that no fraud has been shown.

We must agree with appellants that there is nothing in the record to justify a finding that appellants acted with any fraudulent intent. On the other hand, the record reveals that they acted in accordance with legal advice and in accordance with the custom or usage followed in other counties. In other words, we find nothing to show that appellants were not acting in good faith for what they considered to be the best interest of Ashley County. In our opinion, however, the complaint is based upon the theory of an illegal exaction, and that it is not necessary that an illegal tax be involved. In the case of Lee County v Robertson, 66 Ark. 82, 48 S.W. 901, the court was dealing not with an illegal tax but with a question of an illegal use or appropriation of county funds. At page 87 of 66 Ark., at page 903 of 48 S.W. this statement was made: 'The order of reappropriation was tantamount to an allowance and enforcement of an illegal exaction against every taxpayer of the county. Each taxpayer was therefore individually interested in such order.' Article 16, Section 13, of the Arkansas Constitution provides that: 'Any citizen of any county, city or town may institute suit in behalf of himself and all others interested, to protect the inhabitants thereof against the enforcement of any illegal exactions whatever.' (Emphasis supplied.) This court has many times construed the above constitutional provision but has never limited its application to an illegal tax but has uniformly construed it to apply to an illegal exaction as heretofore defined. In the case of Ward v. Farrell, 221 Ark. 363, 253 S.W.2d 353, 356, under facts somewhat analogous in principle to the facts of this case, in referring to the above mentioned constitutional provision, the court quoted with approval the following:

'This court has construed that provision to mean that a misapplication by a public official of funds arising from taxation constitutes an exaction from the taxpayers and empowers any citizen to maintain a suit to prevent such misapplication of funds.'

'There is eminent authority for holding, even in the absence of an express provision of the Constitution, such as referred to above, a remedy is afforded in equity to taxpayers to prevent misapplication of public funds on the theory that the taxpayers are the equitable owners of public funds and that their liability to replenish the funds exhausted by the misapplication entitles them to relief against such misapplication.'

Appellant's contention that since appellees had a right to appeal to the Circuit Court which provided them an adequate remedy at law, the Chancery Court has no jurisdiction can not be sustained. Such an argument was presented and rejected in the Farrell case supra. Equity jurisdiction may also be invoked to avoid a multiplicity of suits which would otherwise result. In the case under consideration it is not denied that several payments of the nature here complained of have been made over a period of years not only in Ashley County but in other counties, and the complaint alleges that many more such efforts will be attempted in the future.

Thus it is seen that jurisdiction in this case, as it relates to injunctive relief, may be open to doubt, but we do not believe it is necessary to resolve that exact issue here. The question of whether the several counties can expend public funds to support the Association is the prime issue. It is a matter that affects the general public and one that should be resolved for future guidance of all concerned. Therefore we feel justified in treating appellees' petition (insofar as it relates to injunctive relief) as one for a declaratory judgment. We did this, and for much the same reason, in the case of Culp v. Scurlock, Com'r of Revenues, 225 Ark. 749,...

To continue reading

Request your trial
12 cases
  • Foster v. Jefferson County Quorum Court
    • United States
    • Arkansas Supreme Court
    • June 19, 1995
    ...(1994); Scott County, supra; McIntosh v. Southwestern Truck Sales, 304 Ark. 224, 800 S.W.2d 431 (1990); Arkansas Ass'n of County Judges v. Green, 232 Ark. 438, 338 S.W.2d 672 (1960); Rose v. Brickhouse, 182 Ark. 1105, 34 S.W.2d 472 (1931). This recognized exception to the exclusive jurisdic......
  • Mackey v. McDonald
    • United States
    • Arkansas Supreme Court
    • February 4, 1974
    ...capacity. It is quite sufficient at this time to treat the action as one for a declaratory judgment. See Arkansas Association of County Judges v. Green, 232 Ark. 438, 338 S.W.2d 672. Accordingly, the injunction is dissolved and that part of the court's decree declaring the appropriations un......
  • Parsons v. Preferred Family Healthcare, Inc.
    • United States
    • Arkansas Court of Appeals
    • June 1, 2022
    ...v. Jones , 164 Ark. 118, 261 S.W. 43....Our Court thoroughly discussed ‘illegal exaction’ in the case of Arkansas Association of County Judges v. Green , 232 Ark. 438, 338 S.W.2d 672, wherein jurisdiction of the Chancery Court was questioned and illegal exaction was involved. This Court sta......
  • McGhee v. Arkansas State Bd. of Collection
    • United States
    • Arkansas Supreme Court
    • January 20, 2005
    ...such misapplication of funds." Farrell v. Oliver, 146 Ark. 599, 602, 226 S.W. 529, 530 (1921). See also Arkansas Assoc. of County Judges v. Green, 232 Ark. 438, 338 S.W.2d 672 (1960); Ward v. Farrell, 221 Ark. 363, 253 S.W.2d 353 (1952); Samples v. Grady, 207 Ark. 724, 182 S.W.2d 875(1944).......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT