Casey v. Independence County

• Decision Date: 07 July 1913
• Citation: 159 S.W. 24,109 Ark. 11
• Parties: CASEY v. INDEPENDENCE COUNTY
• Court: Arkansas Supreme Court

159 S.W. 24

109 Ark. 11

CASEY v. INDEPENDENCE COUNTY

Supreme Court of Arkansas

July 7, 1913

Appeal from Independence Circuit Court; R. E. Jeffery, Judge reversed.

STATEMENT BY THE COURT.

In pursuance of an act of the Legislature, approved April 22 1907, as amended by an act approved May 4, 1911, the county court of Independence County, at its January term, 1913 received bids from such banks as might desire to become the county depositary. Three banking companies filed sealed written proposals. The First National Bank made a bid of 2 1/2 per cent, and the Union Bank & Trust Company made a bid of 4 1/2 per cent per annum for the funds of the county. The Citizens Bank & Trust Company stated in its written proposal that it proposed to pay one-quarter of one per cent per annum higher than any other bid, provided that its bid should not exceed 4 1/2 per cent per annum.

The bids were opened by the county court at noon on the 6th day of January, 1913, that being the first day of the term. On the 13th day of January, 1913, a subsequent day of the term Samuel M. Casey, by leave of the court, filed his intervention, in which he stated that he was a citizen and taxpayer of Independence County, and objected to the receiving or acceptance by the county court of the proposed bid of the Citizens Bank & Trust Company on the ground that it was not a legal bid. On the said 13th day of January, 1913, the court made an order, accepting the bid of the Citizens Bank & Trust Company, and designating it as the depositary of the funds of said county and adjudged that it pay interest on same at the rate of 4 1/2 per cent per annum upon the daily balances for a period of two years from date. On the same day the intervention of the said Samuel M. Casey was overruled and dismissed. Thereupon, Casey filed his affidavit and bond for an appeal from the judgment of the county court designating the Citizens Bank & Trust Company as the county depositary. The Union Bank & Trust Company also filed its affidavit for an appeal to the circuit court, in which it stated it was a taxpayer of Independence County, and took its appeal as such, as well as being a bidder.

In the circuit court a motion was made to dismiss the appeal on the ground that neither Casey nor the Union Bank & Trust Company was the party aggrieved, and, therefore, entitled to appeal under section 1487, Kirby's Digest. The circuit court overruled the motion to dismiss the appeal, but affirmed the judgment of the county court designating the Citizens Bank & Trust Company as depositary for Independence County. Casey and the Union Bank & Trust Company have appealed to this court.

Judgment reversed and cause remanded.

Samuel M. Casey and Samuel Frauenthal, for appellant.

A citizen and taxpayer may appeal from the finding of the court in this action. 66 Ark. 82; 73 Ark. 523; 101 Ark. 246; 51 Ark. 159; 43 Ark. 42; 54 Ark. 409; 73 Ark. 67; 144 S.W. 214 79 Ark. 236; 149 S.W. 511.

2. On appeal, the case was before the circuit court for trial de novo, and the circuit court was under the duty to try the case upon its merits under the law, without regard to what was done by the county court. 33 Ark. 508; 34 Ark. 240; 79 Ark. 504; 63 Ark. 145.

3. There is in substance no difference in the offer submitted by the Bank of Forrest City, 91 Ark. 211, and that of the Citizens Bank & Trust Company in this case. The proviso in the offer of the latter company "that it will make our bid not to exceed 4 1/2 per cent," does not make it any more a competitive bid than the former, but in reality makes it more unfair, because it was a limitation upon its offer. It was, in fact, no bid at all, but a species of sharp practice which should have received condemnation instead of acceptance. 91 Ark. 311.

4. Under the terms of the amendatory act of 1911, it was the duty of the county court to readvertise for bids. Acts 1907, p. 490; Acts 1911, p. 253. From the passage of this amendment, the county court no longer had authority to make a private agreement with any bank to become the depositary for the county at an agreed rate of interest. The latest act covers the whole subject-matter of letting the depositary, and will take precedence over the former. 41 Ark. 149; 100 Ark. 504; 1 Lewis & Sutherland, Stat. Con., § 247.

McCaleb & Reeder, for appellee.

1. The appeal should have been dismissed. 149 S.W. 511; 77 Ark. 586, and cases cited.

The affidavit for appeal was insufficient in failing to allege that appellant believed himself to be aggrieved. Kirby's Dig., § 1487; 18 Ark. 209; 99 Ark. 56, 59, and cases cited.

2. The order of the county court, in designating the Citizens Bank & Trust Company as depositary was proper. Act No. 208, Acts 1907. Section 8 of this act was not affected by the amendatory act of 1911 (Act No. 258), and was left in full force. Lewis & Sutherland, Stat. Con., § 267; 125 S.W. 1140; 152 S.W. 43; 94 Ark. 311, 314, 315, 316.

3. The bid of the Citizens Bank & Trust Company was competitive.

OPINION

HART, J., (after stating the facts).

The judgment is sought to be upheld on the authority of the Bank of Eastern Arkansas v. The Bank of Forrest City, 94 Ark. 311, 126 S.W. 837, and Reagan v. Iron County Court, et al., 226 Mo. 79, 125 S.W. 1140, but we do not think the principle announced in either of these cases sustain the position taken by the county court. In the case of the Bank of Eastern Arkansas v. The Bank of Forrest City, supra, appellee, in its proposal, did not name any specified rate of interest, but stated that it agreed to pay five-sixteenths of one per cent more on the funds than the highest and best bid that should be made by any other bidder.

The county court adjudged it to be the best bidder, and made an order designating it as the county depositary. This court held that it was not the best bidder, because it did not name a distinct and certain sum, but upheld the judgment on the ground that the act of 1909, under which the case arose, provided that the court should have a right to reject any and all bids, and that in event the bids offered should be deemed too low, the court might order the funds deposited with one or more banks in the county which it might select, at a rate of interest that might be agreed upon between the court and the banks. So, too, in the Missouri case just cited, the county court was given the power to reject any and all bids, and the court held that, when the whole act was construed together, the county court was given a discretion in selecting a county depositary, and that this discretion should not be controlled on appeal in the absence of a showing of abuse.

In the instant case, the Citizens Bank & Trust Company proposed "to pay to said county of Independence the rate of one-quarter of one per cent per annum higher than any other bid, provided, however, that it will make our bid not to exceed 4 1/2 per cent upon the county funds of said county."

It will be noted that this proposal does not name a certain and specified rate of interest. In the case of Webster et al. v. French et al., 11 Ill. 254, which was cited in the case of the Bank of Eastern Arkansas v The Bank of Forrest...