Board of Education of Lonoke County v. Lonoke County

• Decision Date: 16 June 1930
• Docket Number: 51
• Parties: BOARD OF EDUCATION OF LONOKE COUNTY v. LONOKE COUNTY
• Court: Arkansas Supreme Court

29 S.W.2d 268

181 Ark. 1046

BOARD OF EDUCATION OF LONOKE COUNTY v. LONOKE COUNTY

No. 51

Supreme Court of Arkansas

June 16, 1930

Appeal from Lonoke Chancery Court; Frank H. Dodge, Chancellor affirmed.

Decree affirmed.

George E. Morris and O. E. Williams, for appellant.

Guy. E Williams and Chas. A. Walls, for appellee.

OPINION

BUTLER, J.

On January 8, 1927, the Bank of Central Arkansas closed its doors on account of its insolvency. It was the county depository of Lonoke County, and was indebted to the county and its various school districts for public funds deposited with it in the aggregate sum of $ 111,150.50 secured by a bond upon which a number of citizens of the county were sureties, all of whom were then, and are now, solvent and collectively worth more than the amount of the liability arising in favor of Lonoke County on the depository bond. On the day after the bank closed its doors the county judge of Lonoke County entered into a contract with C. A. Walls, an attorney, to represent the county in the collection of the bank's indebtedness. On January 17th, following, the county court confirmed the action of the county judge by making an order appointing and employing C. A. Walls, wherein it was recited that he was to be paid a retainer fee of $ 500, and was to have a reasonable compensation for such services as might be performed in the matter of representing the county in the collection of the public funds, whether collected by suit, settlement, compromise or otherwise. After considerable negotiation, Mr. Walls collected the majority of the indebtedness without suit, and the remainder was collected by suit instituted which suit progressed to final adjudication. The entire amount of the county and school funds with accrued interest was collected from the sureties on the bond, which amounted in the aggregate to the sum of $ 113,505.94. From this sum was deducted the attorney's fee of $ 4,000 which was allowed him, and a further sum due the prosecuting attorney was also deducted and the balance paid over to the county treasurer.

On the 7th day of January, 1929, the court made an order, which, after fixing and allowing the amount of the attorney's fee, among other things, provided that "the $ 4,000 paid to the said Chas. A. Walls should be paid out of the funds recovered in proportion that each fund bears to the total of $ 111,150.50 and the common school fund should be charged with $ 2,500.80 of said amount and the other funds should be charged with $ 1,499.20, making a total of $ 4,000 so paid." From this order the county board of education and the England Special School District prayed and were granted an appeal on the second and fifth days of July, respectively, which appeals were consolidated in the circuit court and by agreement transferred to equity. From the decree there rendered upholding the order of the county court is this appeal.

As stated in its brief, the appellants contend that the employment of the attorney was unnecessary, and the incurring of the $ 4,000 fee was a useless expenditure of the public funds. In disposing of this contention, it may first be said that the appellants are concluded by the recitals of the order appointing the attorney made by the county court on January 17, 1927, and entered of record by order nunc pro tunc on February 14, following, from which there was no appeal. This order made the finding that the county depository bank had closed its doors, and was in the process of liquidation by the State Bank Commissioner, and that at the time the depository was indebted for public funds in the sum of $ 111,150.50, demand for which had been made which was not complied with, thereby creating the default in the conditions of the depository bond, and that, because of the official duties with relation to the prosecuting attorney's attendance upon the terms of circuit courts in the district, the necessity arose for special counsel.

Aside from the conclusiveness of the findings of the above order, it is well settled that the matter of employment of special counsel rests within the sound discretion of the county court, which, while subject to review, will not be disturbed, unless it is shown that there was an abuse of such discretion, the presumption being that in any given case the court will not create an unnecessary expense, but will act for the county with that degree of prudence which careful business men exercise in relation to important affairs, and, even in cases where it is the duty of the prosecuting attorney to act, the court may employ other counsel when in its judgment the interests of the county and the matter involved are of sufficient importance to demand it. Oglesby v. Ft. Smith, etc., 119 Ark. 567, 179 S.W. 178; Buchanan v. Farmer, 122 Ark. 562, 184 S.W. 33; and cases there cited; Johnson County v. Patterson, 167 Ark. 287, 267 S.W. 783. Without deciding that it was the duty of the prosecuting attorney to represent the county, there was testimony to the effect that he was not ignored, but that on the day the special attorney was employed, the prosecuting attorney was consulted, and he indicated that because of the press of official business the employment of special counsel was satisfactory; that his official duties required his presence in the court of a neighboring county at a regular term, and there were to be six regular terms of the courts in his judicial circuit to be held within the months of January, February and March. From this and the fact that the entire revenue of the county and its school was in jeopardy and a condition existed which reasonably excited great apprehension in the minds of the county judge and the citizens, it is apparent that immediate action was deemed necessary. Therefore, it cannot be said that the employment of the special counsel was unnecessary or unreasonable, notwithstanding the fact that the sureties on the depository bond were men of wealth and probity, since experience teaches that even men of this class are seldom ready to pay security debts that can be avoided, and that resourceful individuals have found, and do frequently find, the means to escape liability or to greatly lessen it. If it is admitted that the county court had the authority to employ special counsel in matters in which the county has an interest which the appellants do not specifically deny and of which in proper cases there can be no doubt then that authority must extend not only to those matters in which the county has the primary and sole interest, but to those also in which that interest exists by reason of an obligation under which the county rests for the protection or enforcement of the rights of others.

In the instant case the county court, acting under the authority of law, concluded in the name of the county a contract with the depository bank and with its bondsmen whereby the public revenue, those belonging solely to the county and also the county school fund and the road fund, were surrendered to that depository for safe keeping and for payment on demand to the proper authorities. The county was obligated to see that the depository was a solvent institution, and its bond executed by...