Beene v. Hutto

• Decision Date: 15 June 1936
• Docket Number: 4-4377
• Citation: Beene v. Hutto, 96 S.W.2d 485, 192 Ark. 848 (Ark. 1936)
• Parties: BEENE v. HUTTO
• Court: Arkansas Supreme Court

96 S.W.2d 485

192 Ark. 848

BEENE v. HUTTO

4-4377

Supreme Court of Arkansas

June 15, 1936

Appeal from Faulkner Circuit Court; W. J. Waggoner, Judge; reversed.

Judgment reversed, and cause remanded.

Culbert L. Pearce, for appellants.

R W. Robins, for appellees.

MEHAFFYJ. JOHNSON, C. J., MCHANEY and BUTLER, JJ. dissent.

OPINION

MEHAFFY, J.

This suit was begun in the Faulkner County Circuit Court.The following petition was filed:

"Plaintiffs are qualified electors and taxpayers of Faulkner county, and as such, have an interest in the subject-matter of this action and bring suit for themselves and others who are similarly situated, and desire like relief.

"DefendantJ. A. Hutto is county judge, defendantJohn Griffith is clerk of the county court, defendantA. H. Burkett is clerk of the circuit court, defendantNeel Webb is county treasurer, defendantJason I. Summers is sheriff and ex-officio collector, and defendantBert M. Tilley is assessor of Faulkner county, having been duly elected, did qualify and now are acting as provided by law.

"On August 21, 1934, plaintiffRoy Rogers, for himself and others, tendered to John Griffith, as county clerk, for filing, a petition in several parts, signed by 676 persons who claimed to be qualified electors of the county, ordering proposed initiative act No. 1, entitled 'An act for the purpose of fixing the compensation and expense of certain officials of Faulkner county, Arkansas, and of fixing the number of their deputies, assistants and clerks, and of fixing the manner in which such compensation and salaries shall be paid, and for the purpose of effecting economies in the expense of government in said county,' to be submitted to the electors of the county, for approval or rejection, at the general election held on November 6, 1934.Copy of said initiative petition, containing the full text and title of said act, is made a part hereof and marked exhibit A.

"Defendant, John Griffith, as such clerk, received said petition, issuing his receipt therefor.Copy of said receipt is made a part hereof and marked exhibit B.

"On September 29, 1934, defendant, John Griffith, as county clerk, after having examined said petition, found and certified, 'That according to the 1934 voters record said petition does have the requisite number of legal and qualified electors which would qualify said petition to be placed upon the ballot inaccordance with Amendment No. 7 to the Constitution.'Copy of said certificate is made a part hereof and marked exhibit C.

"On October 29, 1934, defendant, John Griffith, as such clerk, made and delivered to the sponsors a certified copy of said petition, and the certificate of sufficiency thereto attached, and they caused the same to be published for the time and in the manner prescribed by law.Copy of the proof of publication of said petition and certificate is made a part hereof and marked exhibit D.

"On October 29, 1934, without notice to the sponsors, the board of election commissioners arbitrarily announced that the ballot title of said proposed act would not appear on the ballots to be used in the approaching general election.

"On the following day, the sponsors sought counsel and were advised to obtain stamps or stickers bearing the proposed title of said act, as follows, to-wit:

" 'Initiative act No. 1, of Faulkner County'

" 'An act for the purpose of fixing the compensation and expenses of certain officials of Faulkner county, Arkansas, and of fixing the number of their deputies, assistants and clerks, and of fixing the manner in which such compensation and salaries shall be paid, and for the purpose of effecting economies in the expense of government in said county.

" 'For initiative act No. 1,'

and to invite the use of such stamps or stickers by electors at the polls as a means of expressing their choice and vote for said proposed act.The sponsors thereupon announced through newspapers published in the county, and by handbills, that rubber stamps would be furnished to electors at the various polling places, and, in accordance with said announcement, procured stamps, bearing the ballot title of said act as above set out and offered them to electors who appeared at the various polling places throughout the county on election day.

"At said election, which was legally called and legally held, there were 2,101 ballots cast by electors of the county, and 1,187 of said ballots were imprinted and stamped by the voters with the rubber stamp bearing the ballot title of said initiative act, as above described, and no votes were cast against it.The electors thereby expressed approval of said act and cast their ballots for it, giving it a majority of all votes cast by those voting on the question.It thereby became a law 30 days after said election, and at all times since then has been, and now is, in full force and effect as a local initiative act.Said act repealed all other local laws that were in conflict with it.

"At all times since the adoption of said act, the defendants, by agreement and acting in concert, have openly, purposely, systematically and wrongfully refused to abide by or to enforce its provisions, in whole or in part, and, as a result, said act is not being enforced or obeyed by them, their deputies and persons transacting business with them as such officers.

"Under said act, all fees, commissions, emoluments and perquisites of whatsoever kind paid to and received by the defendants as such officers is the property of the county and should be by the recipient paid into the county treasury.The county judge would then be entitled to file claim and receive from the county $ 2,000 as salary and $ 600 as expenses; the clerk of the county court $ 2,000 as salary and $ 900 for deputy hire; the clerk of the circuit $ 2,000 as salary and $ 900 for deputy hire; the county treasurer $ 1,800 as salary and no deputy hire; the sheriff and collector $ 2,000 as salary, $ 2,100 for deputy hire, and actual expenses; and the assessor $ 1,500 as salary and $ 900 for deputy hire per annum, but the defendants are not following these requirements.They are drawing salaries and receiving fees under statutes which were in effect before said initiative act was adopted and thereby are receiving much greater amounts than they are lawfully entitled to receive under said act, all to the detriment of these plaintiffs and others as taxpayers of Faulkner county.

"Plaintiffs have no other adequate remedy at law and therefore demand special relief.

WHEREFORE, premises being seen, petitioners pray that a writ of mandamus issue, commanding and requiring the defendants to file reports showing all fees, commissions, emoluments and salaries received, collected and drawn since said act became effective that they be required to account for and pay into the county treasury all sums so received in excess of the salaries and expenses authorized by said act and, in the event of their failure or refusal to obey said order, that plaintiffs have judgment against each of them, for the use and benefit of Faulkner county, for all fees, commissions, emoluments and salaries received, retained and drawn over, above and in excess of such as are provided and authorized by said act that the defendants, and each of them be required to comply with and enforce the provisions of said act in the regular and due administration of the duties of their respective offices; that such further orders be made as may appear necessary to preserve the rights of the plaintiffs and other taxpayers; and that plaintiffs have all other and proper relief."The petition was properly verified.

Notice of hearing was issued and served, and a motion to quash and strike was filed.

Thereafter a summons was issued and served, and the appellees filed the following demurrer:

"The defendants in the above entitled cause, not waiving their motion to strike the petition and motion of the plaintiffs herein from the files of the court to quash the return on the notice served herein, but expressly insisting upon the same and insisting that no suit has been filed herein, or is pending herein, and that the court is without jurisdiction to make any order herein, demur to said petition and motion and move that same be dismissed on the following grounds:

"(1) Said petition and motion does not state grounds sufficient to constitute any cause of action herein.

"(2) Said petition and motion does not state facts sufficient to entitle the plaintiffs to the relief prayed for therein or to any relief herein.

"(3) There is a misjoinder of parties herein, in that the defendants are improperly joined in said petition and motion.

"(4) Said petition and motion discloses on its face that it is not brought by the proper parties, for the reason that the plaintiffs are not shown by said petition and motion to have any special...