Burrow, County Judge v. Floyd

• Decision Date: 30 November 1936
• Docket Number: 4-4407
• Parties: BURROW, COUNTY JUDGE, v. FLOYD
• Court: Arkansas Supreme Court

99 S.W.2d 573

193 Ark. 220

BURROW, COUNTY JUDGE, v. FLOYD

4-4407

Supreme Court of Arkansas

November 30, 1936

Appeal from Franklin Circuit Court, Ozark District; J. O. Kincannon Judge; reversed.

Judgment reversed and cause remanded.

Carter & Taylor, for appellants.

Mark E Woolsey, for appellees.

JOHNSON C. J. MCHANEY, J., dissents in part. SMITH, J., not participating.

OPINION

JOHNSON, C. J.

On January 20, 1936, the county judge of Franklin county, Arkansas, caused to be entered upon the county court records of said county the following order, in part:

"In the matter of the transfer and setting aside a certain per cent. of road tax and road fund for use as provided by § 5278 of Crawford & Moses' Digest. * * *

"It is therefore considered and ordered in response to such resolution adopted by the quorum court, and in order to meet the requirements of the Government in its WPA work in Franklin county, and give all townships road work in their respective districts, that the sum of 50 per cent. of the three mill road tax collected in the year 1936 in Franklin county, be and the same is hereby ordered and directed to be placed in 'The Special Road Fund' for Franklin county for such use as provided by and under the provisions of § 5278 of Crawford & Moses' Digest of the Statutes of Arkansas, which is to be set aside before any distribution is made of the remainder of any part thereof to the different road districts of said county or before the payment of any salary of the Road Commissioner of Franklin county, or any administrative costs.

"After the setting aside of the above 50 per cent. of such road tax to said Special Road Fund, it is further ordered and directed from the remainder there be set aside the further sum of $ 1,000 to pay the salary for 1936 of the Road Commissioner of Franklin county, and the further sum of $ 25 for administrative costs.

"It is further considered, ordered and directed that all delinquent road taxes collected in the year of 1936 be, and the same is hereby also, directed to be placed and credited to the Special Road Fund of Franklin county to be used for the same purpose as is provided in said § 5278. Signed R. H. Burrow, County Judge."

Subsequently appellees, Harve Floyd et al., citizens, taxpayers, and road overseers of certain road districts in said county filed their petition in the circuit court of Franklin county against appellant, Burrow, as county judge, and other necessary county officials, praying that a writ of certiorari be issued to the end that the county court order of January 20, 1936, and copied, supra, be reviewed and quashed.

This petition in effect alleged that the county court order of January 20, 1936, was invalid and void because not authorized by the quorum court; because it would be taking funds from one road district in said county, and expending them in another road district in said county; and because said order was entered without notice to appellees.

This county court order was also attacked by appeal to the circuit court.

In the circuit court, the appeal from this county court order and the attack by certiorari were consolidated for trial purposes, and upon hearing thereof, after testimony adduced, the circuit court found and entered an order to the following effect:

"That in the general election of 1934 a majority of the electors of Franklin county, Arkansas, voted the three mill road tax, and said tax has been levied by the quorum court of Franklin county, Arkansas.

"That there remains to be collected during the year 1936 certain delinquent three mill road taxes levied pursuant to the general election of 1932 and other general elections prior thereto.

"That the quorum court of Franklin county, Arkansas, convened on the 11th day of November, 1935, and on the 6th day of January, 1936, without authorizing or approving any action of the county court in taking any part of the three mill road tax of Franklin county for the payment of any part of the salary of the Road Commissioner of said county.

"That on the 20th day of January, 1936, the county court of Franklin county made and had entered of record the order with caption and body the same as Exhibit 'A' to the complaint of plaintiffs, Harve Floyd and Joe Post, and reference is made to said Exhibit as fully as if the same were written herein at this point.

"The court further finds that the county court of Franklin county has the right to have the sum of one thousand ($ 1,000) dollars of the county judge's salary paid from the three mill road tax.

"That the county court has the right to purchase the necessary road machinery to be used in the various road districts of the county.

"The court finds that the county road commissioner will need to use twenty-five per cent. of the balance of the three mill road tax of the county after deducting the said one thousand ($ 1,000) dollars for his salary, in the purchase and maintenance of road machinery to be used in the various road districts in cooperation with the WPA projects.

"The court further finds that the costs of this suit should be paid from the three mill road tax of Franklin county.

"It is therefore by the court considered, ordered and adjudged that the county court allow, the county clerk write warrants, and the county treasurer pay warrants from the three mill road tax in the sum of one thousand ($ 1,000) dollars on the salary of the county judge as the same may become due and payable, and that said one thousand ($ 1,000) dollars shall be borne by each of the several road districts of Franklin County pro rata, that is each shall pay in proportion to the amount of three mill road taxes collected in said district.

"It is further considered, ordered and adjudged that the county court allow, the county clerk issue warrant and the county treasurer pay the costs of this suit out of the said three mill road tax in the manner above provided for the payment of the county judge's salary upon the proper certificate of said costs by the clerk of the circuit court, and that the warrant be made payable to the said clerk of the circuit court, and that said clerk pay same to the proper parties as their interests may be.

"It is further considered, ordered and adjudged that the county court may allow claims and the county clerk may issue warrants thereon and the county treasurer pay said warrants to the extent of twenty-five per cent. of the balance of said three mill road tax after deducting the salary of the county judge and the costs of this suit as above set forth, for the purchase of and maintenance of road machinery.

"It is further considered, ordered and adjudged that the county court will allow upon proper claims of the various...