Cunningham v. Stockton, 5-2723

• Decision Date: 10 September 1962
• Docket Number: No. 5-2723,5-2723
• Citation: 359 S.W.2d 808,235 Ark. 345
• Parties: Bill CUNNINGHAM et al., Appellants, v. Roy STOCKTON, County Judge, Appellee.
• Court: Arkansas Supreme Court

Page 808

359 S.W.2d 808

235 Ark. 345

Bill CUNNINGHAM et al., Appellants, v. Roy STOCKTON, County Judge, Appellee.

No. 5-2723.

Supreme Court of Arkansas.

Sept. 10, 1962.

Garner, Shaw & Kimbrough, Ft. Smith, for appellants.

James H. Pilkinton, Hope, Nabors Shaw, Mena, for appellee.

ROBINSON, Justice.

Appellants, Bill Cunningham and Harold Berg, filed this action in the Chancery Court to enjoin Roy Stockton, County Judge of Polk County, from 'using, loaning, letting, hiring, or otherwise using' county road machinery in making improvements for private citizens. It appeared that the County Court had approved the action of the County Judge in the use of the equipment and the Chancellor ruled that the Chancery Court did not have jurisdiction to grant the relief sought; that such jurisdiction was in the Circuit Court.

The issue on appeal is whether the Chancery Court has jurisdiction to enjoin the County Judge from using the county equipment for unauthorized purposes.

During March and April, 1961, the County Judge used heavy earth moving equipment belonging to the county to do work for certain individuals. Only one of those individuals paid for such work.

On August 15, the County Judge entered into a purported contract with his secretary, Grace Bell Smith, whereby all the county road equipment of Polk County was leased to Miss Smith for the consideration of one dollar per year, and other consideration.

Later, the County Judge used the road equipment for doing work for other individuals. At the trial in Chancery Court, the County Judge testified that unless prohibited by a court order, he would continue to do such work for individuals.

On October 16, 1961, this Court decided the case of Needham v. Garner, County Judge, Ark., 350 S.W.2d 194. There the Court said: 'One, there is no contention here by appellee that he was acting in the capacity of the County Court. The record shows that the parties stipulated 'there have been no orders of the County Court made, entered or placed of record confirming or affirming any of the dirt moving project contracts'. Two, because of the above stipulation, we need not and do not affirm or deny the powers of the county court to enter into contracts such as here questioned. Three, there is no contention that the County Court ratified the contracts made by the County Judge.'

The next day, October 17, the County Court here entered what was designated as a nunc pro tunc order approving and ratifying the work done by the County Judge for private individuals, and on the 7th or 8th of November, the County Court entered another such order.

Now as to the jurisdiction of the Chancery Court to enjoin and restrain the County Judge or County Court from using the county equipment for unauthorized purposes, Art. 16, Sec. 13 of the Constitution of Arkansas provides: 'Any citizen of any county, city or town may institute suit in behalf of himself and all others interested, to protect the inhabitants thereof against the enforcement of any illegal exactions whatever.'

In the Needham case, in referring to Art. 16, Sec. 13, we said: 'The above quoted section of the constitution has been interpreted in more than forty decisions of this Court. A casual reading of just a few of these decisions clearly indicates a liberal interpretation of said section not only...