Bowman v. Frith

• Decision Date: 14 January 1905
• Citation: 84 S.W. 709,73 Ark. 523
• Parties: BOWMAN v. FRITH
• Court: Arkansas Supreme Court

84 S.W. 709

73 Ark. 523

BOWMAN v. FRITH

Supreme Court of Arkansas

January 14, 1905

Appeal from Prairie Chancery Court, JOHN M. ELLIOTT, Chancellor.

Affirmed.

Decree affirmed.

J. W. & M. House, for appellant.

The county court had no power to make the contract in the case. 54 Miss. 670; 61 Ark. 74; 44 P. 324. The county court had no power to let a contract to repair the court house, in excess of the appropriation. 34 Ark. 369; 36 Ark. 641; 53 Ark. 287; Sand. & H. Dig., § 848. As to the distinction between power to build a court house and jail and to make other contracts. Cf. Sand. & H. Dig., §§ 839-884 and 1271-1284. See, also, 63 Ark. 402; 54 Ark. 645. The contract to repair the court house is void, and the order of the county court authorizing the payment of the expenses for same is void because there is no limit fixed as to amount or direction as to what funds are to be used, nor any appropriation of particular funds for the purpose. Const Ark. art. 16, §§ 11, 12; 66 Ark. 82; 53 Ark. 287. As to procedure under former statute (Act April 28, 1873) see: 28 Ark. 518; Ib. 317; 27 Ark. 603; 30 Ark. 557. The contract is void for the further reason that it provides for changes and modifications without in any way limiting or defining same. 54 Ark. 645; 6 Neb. 204; Const. Ark. art. 9 § 16; Sand. & H. Dig., §§ 848, 871; 27 F. 495; 113 Cal. 628. The contract is void for the further reason that it is against public policy, in that it has a tendency to induce fraud upon the rights of the public or the violation or neglect of public duties. 25 Ark. 209; 32 Ark 619; 34 Ark. 762; 34 Ark. 684; 32 Miss. 152; 90 Am. Dec. 537; 12 Ia. 398; 11 Ia. 133; 47 Me. 471; 24 L. R. A. 206; 50 Ark. 447; 60 F. 240; 80 N.Y.S. 811; 92 N.W. 763. A contract to "repair" a court house does not authorize the destruction of the old house and the building of a new one. See, as to proper construction of contract to repair; 24 Am. & Eng. Enc. Law (2d Ed.), verbo "repair;" 22 L. R. A. 402, 412; 111 Ia. 312-14; 144 N.Y. 444; 70 Ia. 173; 113 Ind. 302-4; 63 Pa.St. 166; 63 N.E. 864; 34 Mich. 78; 85 Mo. 263; 69 Am. St. Rep. 436; 31 Wis. 648; 32 N.E. 307; 29 How. Pr. 429; 24 N.J.Eq. 358; 50 N.J.L. 523; 57 S.W. 790; 9 Wall, 50; 70 Ia. 173; 113 Ind. 302; 113 Cal. 628. That injunction is the proper remedy, see: 54 Ark. 645; 34 Ark. 369; 46 Ark. 471; 4 Ark. 302; 53 Ark. 287.

J. H. Harrod, for appellees.

The court correctly sustained the demurrer to the complaint, it not appearing that the proceedings of the county court were had without authority of law. 54 Ark. 645. The county court had full power to act in such a case, and to make the contract and order. Const. Ark. art. 7, § 28; Ib. art. 19, § 16; Sand. & H. Dig., §§ 1173, 855, 1279. The judgments and orders of the county court in such matters are not open to collateral attack. 55 Ark. 275; 9 Wall. 23; 1 Bl. Judg. § 246; 22 L. R. A. 402; 28 Gratt. 879; 59 Ark. 483.

OPINION

HILL, C. J.

This is a suit in chancery by a resident and taxpayer of Prairie County to enjoin the erection of a court house under a contract which called for certain "alterations, additions and repairs" to the old court house. The complaint was met by demurrer, which was sustained, and the ruling thereupon brought here to review.

In brief, the allegations of the complaint are: The levying or quorum court of Prairie County at its October, 1903, term appropriated $ 2,500 for court house purposes for the current year. Following this order and reciting it, the county court at its April, 1904, term, made an order appointing a court house commissioner, who was ordered to present to the court plans and specifications for repairing the court house at Des Arc, the county seat of Prairie County. The commissioner, Frith, accepted the appointment, took the oath of office, and entered on the discharge of his duties.

The commissioner reported a contract with an architect for plans and specifications for additions, alterations and repairs, and to supervise the construction thereof. The contract was approved, and notice of a public letting of a contract for the construction of these additions, alterations and repairs, according to specifications and plans was given. Four separate bids for the contract were offered, and the contract was awarded the lowest bidder at the sum of $ 29,375, and a bond in the sum of $ 58,750 was taken. This contract was approved by county court, and the bond accepted by it. Immediately thereafter this suit was brought to enjoin its execution. The complaint alleges, and the plans, specifications and contract clearly establish, that the contract, in effect, was for the construction of a new court house, and not the repair of the old one. The old court house was a structure costing, when erected, some twenty years ago, about $ 12,000 or $ 15,000. It is further alleged that, as a pretext for calling the construction "repairs," the north and east walls were to be retained and the new building constructed with these walls as a nucleus, and then, under a clause in the contract providing for modifications of the plans, these walls were to be taken down, and new ones substituted at a cost of several thousand dollars. In brief, a new court house, costing approximately $ 35,000, was to be erected. Can a suit be maintained in the chancery court to restrain the execution of this contract is the question presented in this case. It was settled in Fones Bros. Hardware Co. v. Erb, 54 Ark. 645, 17 S.W. 7, that a taxpayer may maintain a suit to cancel a void contract for a public improvement, and therefore this case hinges upon whether the contract in question was a void contract.

It is manifest and apparent that the contract cannot be treated for what it purports to be, that is, a contract for additions, alterations and repairs to the old court house. The law looks to the substance, not the name, and finds this a contract for what is really intended, an elegant and commodious new court house. Had the county court authority to make it?

It is settled law, as to certain public contracts, that when the quorum or levying court makes an appropriation for the subject, it thereby signifies its favorable judgment for it, and the county judge may afterwards signify his favoring judgment by contracting for it, and the contract may exceed the amount appropriated. Fones Bros. Hardware Co. v. Erb, 54 Ark. 645, 17 S.W. 7; Wiegel v. Pulaski County, 61 Ark. 74, 32 S.W. 116; Durritt v. Buxton, 63 Ark. 397, 39 S.W. 56.

The county judge evidently proceeded in this case under that rule, treating the appropriation of $ 2,500 as one for repairs to the old court house, and contracting beyond the amount thereof as he was authorized to do in making repairs. But this contract is not one for repairs, and therefore cannot be sustained on this ground. The case of Durritt v. Buxton, 63 Ark. 397, 39 S.W. 56 is a careful review and explanation of the statutes on this subject, and it is therein pointed out that the statutes construed in the cases above cited requiring an appropriation from the levying court as a basis for a contract do not apply to the construction of court houses, which are controlled by another statute, to-wit, sections 1009-1025, Kirby's Digest. That case is reviewed and approved in Hilliard v. Bunker, 68 Ark. 340, 58 S.W. 362. This statute requires no previous appropriation by the levying court, and gives the county court authority to erect a good and sufficient court house whenever it shall consider it expedient to erect it under the following limitations: When there shall be sufficient funds in the county treasury which may be appropriated to the erection of county buildings, or which are not otherwise appropriated, or if the circumstances of the county will permit such court to levy a tax for the erection of such building, such court may then make the order for the building, stating in the order the amount to be appropriated therefor. Kirby's Digest, § 1025, part of said statute, gives the county court power, from time to time, to alter, repair or rebuild any county building, and to cause other necessary buildings and fixtures to...