Desha County v. Chicot County

• Decision Date: 24 December 1904
• Citation: 84 S.W. 625,73 Ark. 387
• Parties: DESHA COUNTY v. CHICOT COUNTY
• Court: Arkansas Supreme Court

84 S.W. 625

73 Ark. 387

DESHA COUNTY v. CHICOT COUNTY

Supreme Court of Arkansas

December 24, 1904

Appeal from Chicot Chancery Court, MARCUS L. HAWKINS, Judge.

Decree modified.

Decree modified and cause remanded.

X. J Pindall end F. M. Rogers, for appellant.

Exclusive original jurisdiction of this suit is vested in the county court. 44 Ark. 225; 47 Ark. 80; Const., art. 7, § 28.

Baldy Vinson, for appellee.

Limitation does not run while there is no one capable of suing. 48 Ark 386; 42 Ark. 491; 38 Ark. 243; 16 Am. Dec. 290; 94 N.C. 231; 84 Tenn. 697; 76 Wis. 598; 37 P. 349; 26 Kan. 181; 93 Ky. 33; 42 Ark. 54; 33 Ark. 690. The act of 1899 does not violate section 28, article 7, of the Constitution. 52 Ark. 430; 58 Tex. 321; 148 U.S. 228; 51 Ark. 344; 120 U.S. 517; 33 Ark 690. The detached territory is liable to Chicot County on the compromise bonds to the amount found by the masters. 92 U.S 307; 54 Ala. 639; 33 Ark. 497; 52 Ark. 430; 35 Md. 201; 16 Mass. 76; 58 Miss. 619; 95 N.C. 189; 14 Ore. 525; 69 Tex. 177; 18 Fla. 512. The cost of suit was properly placed. 18 Ark. 202; 19 Ark. 148; 36 Ark. 333.

F. M. Rogers, for appellant in reply.

A county cannot be sued alone in any other State court, except one which sits within its own borders. 44 Ark. 229; 36 Ark. 378. The debt, being barred prior to the passage of the act of 1899, is not revived by it. 20 Am. Rep. 131; Cooley, Const. Lim. 448; Cooley, Tax. (2d Ed.), 690.

OPINION

BATTLE, J.

By an act entitled "An Act to change the boundary line between the counties of Chicot and Desha," approved February 10, 1879, certain portions of Chicot County were detached and added to Desha County. No part of the indebtedness of Chicot County was apportioned to Desha or to the territory attached. Afterward, by an act entitled "An act to adjust the indebtedness of Chicot County, existing on the 1st day of July, 1879, and apportion the same between said county of Chicot and that part of said county cut off from said county of Chicot, and added to the county of Desha, by 'An act entitled an act to change the boundary line between the counties of Chicot and Desha,' approved February 10, 1879, and for other purposes," approved March 19, 1881, provision was made for ascertaining the acknowledged indebtedness of Chicot County on the 10th day of February, 1879, remaining unpaid, and to apportion the same between the county of Chicot and the part thereof added to the county of Desha, and for the enforcement of the collection and payment of the same out of the territory so detached. In the preamble of the latter act is the following recital: "Whereas, there is, and was at the time of the passage of said act, litigation pending to enforce upon the county of Chicot a liability for certain bonds heretofore issued to certain railroads by the county of Chicot, which liability was at the time, and still is, denied by the county of Chicot, but which, if finally decided to be a valid indebtedness against the county of Chicot, and payment thereof enforced against said county, should be borne by said county of Chicot, and the part so cut off and added to Desha County, in proportion to the value of the taxable property of said county of Chicot and the part so cut off."

And as to indebtedness mentioned in such recital the act provided as follows:

"Sec. 2. That if it should be hereafter determined that the said county of Chicot is liable on the bonds issued to said railroads, or either of them, or for any scrip issued in lieu of certain bonds claimed by the representatives of Lloyd Tilghman, deceased, and now in suit, that part of the said county of Chicot so cut off and added to the county of Desha, by the provision of the act aforesaid, shall pay and be held liable for its proportion of said indebtedness, according to the value of the taxable property of the portion so cut off, compared with the value of the taxable property of the remainder of the county of Chicot. And in case of disagreement the proportion, and all questions connected with the adjustment of the matter, to be decided by a board of arbitrators, to consist of the Governor, the Auditor and Treasurer of the State of Arkansas for the time being, and all expenses of defending the suits now pending, or prosecuting or defending any suits hereafter to be brought, either by or against the county of Chicot, for, or on account of, the indebtedness described in this section, to be apportioned between said county of Chicot and the part so cut off in like proportion. Provided, however, that nothing in this act shall be construed as ratifying or in any manner recognizing the validity of said indebtedness, or any part thereof."

Further provision was made by the General Assembly for the adjustment and apportionment of the disputed indebtedness of Chicot by an act entitled "An act to provide a mode of settlement of certain indebtedness due from Desha County to the county of Chicot," approved April 10, 1899. The preamble of the act is as follows:

"Whereas, By an act approved February 10, 1879, certain parts of Chicot County were detached from said county of Chicot and attached to said county of Desha, without providing for a settlement of the then existing indebtedness of the said county of Chicot; and,

"Whereas, By an act approved March 19, 1881, it was recognized that that part of Chicot County so detached from said county of Chicot and attached to said county of Desha should bear its proportion of the existing indebtedness of Chicot County existing on February 10, 1879; and,

"Whereas, Under the provisions of said act approved March 19, 1881, the clerk of Chicot County and James Murphy, as the commissioner from Desha County, did meet, ascertain and adjust so much of said indebtedness as could then be adjusted; and,

"Whereas, The indebtedness of said county of Chicot represented by bonds issued under the act approved July 23, 1868, to the Mississippi River, Ouachita & Red River Railroad Company and Little Rock, Pine Bluff & New Orleans Railroad Company, was at the time of said adjustment of said indebtedness then in dispute and being contested in the courts of the United States, and was for that reason, as provided in said act, approved March 19, 1881, not included by said commissioners in said adjustment; and,

"Whereas, The Supreme Court of the United States has, in two separate actions, affirmed and declared the validity of said bonds; and,

"Whereas, The said county of Chicot has compromised the said indebtedness represented by said bonds so issued at fifty-five (55) per cent. on principal and interest and costs of litigation, by issuing bonds for said amount running from the 1st day of July, 1889, to the 1st day of July, 1909, and bearing interest at the rate of five (5) per cent. per annum till paid; and,

"Whereas, The said act of March 19, 1881, recognized the justness upon condition of that part of Desha County so detached from Chicot County bearing its proportion of said bonded indebtedness, but the mode of ascertaining the said proportion and the manner of enforcing the same when ascertained is not as expeditious as is desired; and,

"Whereas, The said contingency has happened, and said bonds have been declared a valid indebtedness against Chicot County."

Sections 1, 2, 3, and part of 4, of said act are as follows:

"Section 1. That the said county of Chicot shall have the right at any time within the next five (5) years after the passage of this act to institute its action in the chancery court of Chicot County against the said county of Desha, to ascertain, adjust, and declare the proper amount of said bonded indebtedness that should be borne by that part of Desha County so detached from said county of Chicot.

"Sec. 2. That the said chancery court of the said county of Chicot shall have, and the same is hereby invested with, jurisdiction of the said cause, which shall run in the name of the State of Arkansas on relation of Chicot County against Desha County, and services of process shall be made and had on the county judge of the said county of Desha.

"Sec. 3. That the said chancery court of Chicot County in the conduct and hearing of the said cause shall be governed by the rules and procedure of the chancery courts of the State of Arkansas, and shall render such decree against the said county of Desha for so much of said compromise indebtedness and the expense attending the said compromise as shall be found just and proper, as shown by the pleadings and evidence in said cause, and such decree shall be certified to the county courts of the said counties of Desha and Chicot.

"Sec. 4. That any decree rendered by the said chancery court in said cause shall bear interest at five (5) per cent. per annum from date till paid; and the said chancery court shall have power to enforce the collection of said decree by causing the levying or quorum court of said Desha County to annually levy such rate of taxation, not exceeding two (2) per cent., as will pay one-twentieth of decree and interest thereon and expenses of collection, and such levy shall be extended by the clerk of said county of Desha, and collected by the collector of said county of Desha, on and from the territory of said Desha County so detached from said Chicot County; such collection of said taxes to be made in currency of the United States, or in warrants of said county of Chicot."

On the 10th day of August, 1899, the State of Arkansas on the relation of Chicot County instituted a suit against Desha County pursuant to the act of April 10, 1899, and alleged in its complaint as follows: On the 23d of March, 1872 "Chicot County, under authority of the act of July 23, 1868, executed and delivered on stock subscriptions to the Mississippi, Ouachita & Red River...