Dobbs v. Holland

• Decision Date: 03 November 1919
• Docket Number: 177
• Citation: 215 S.W. 709,140 Ark. 398
• Parties: DOBBS v. HOLLAND
• Court: Arkansas Supreme Court

215 S.W. 709

140 Ark. 398

DOBBS v. HOLLAND

No. 177

Supreme Court of Arkansas

November 3, 1919

Appeal from Sebastian Chancery Court, Greenwood District; J. V Bourland, Chancellor; affirmed.

A. M Dobbs, for appellant.

1. The court has jurisdiction because (1) plaintiff has no adequate remedy at law; (2) it will prevent multiplicity of suits, and (3) plaintiffs and defendants occupy the relation of cestui que trust and trustee, and equitable remedy is sought to prevent the wrongful use of trust funds. Kirby's Digest § 1493; 4 Ark. 302; 8 Id. 57; 146 F. 8; 134 U.S. 338; 30 Ark. 109; art. 16, sec. 13, Const. 1874; 34 Ark 603-7; 4 Pom. Eq. Jur. (4 Ed.), Ch. 18, §§ 1762, 1778, 1767; 101 U.S. 601; 53 Ark. 37; 52 Id. 541.

2. The act is void because (1) it is a special law where a general law could be made applicable and suspends a general law for the benefit of a particular individual in violation of article 5, section 24, Constitution. (2) It creates a permanent State office in violation of the Constitution, article 16, section 9. 114 Ark. 212. (3) It usurps the original and exclusive jurisdiction of the county court in matters of county taxes and disbursements of county funds for county purposes in violation of article 7, section 28, and requires quorum courts to make appropriations for purposes other than county purposes in violation of article 7, section 20, Constitution. 11 Ark. 108; 85 Id. 89; 107 S.W. 1183; 114 Ark. 278; 169 S.W. 964; 188 Id. 82; 125 Ark. 350. (4) It requires the payment of money out of the treasury before an appropriation has been made in violation of article 16, section 12, Constitution. Kirby's Digest, §§ 1499, 1503. (5) It arbitrarily fixes the salary and expenses of the prosecuting attorney for the Fort Smith and Greenwood districts, thus encroaching upon and usurping the duties of quorum courts in violation of article 13, section 5, and article 4, sections 1 and 2 of the Constitution. (6) It increases the salary of the present prosecuting attorney during his term of office and above the maximum allowed by article 19, section 11, Constitution. 4 Pom. Eq. Jur. (4 Ed.), § 1339.

Earl U. Hardin, Edwin P. Hardin, Geo. W. Dodd and Covington & Grant, for appellees.

1. The contention of appellant that he has no adequate remedy at law and that chancery should interfere to prevent multiplicity of suits, etc., is without merit. 30 Ark. 109; 106 Id. 508.

2. No general law is superseded by a special act. 103 Ark. 529.

3. The Constitution does not prohibit the increase in salaries of prosecuting attorneys. Art. 19, § 11, Constitution; 85 Ark. 89.

4. All doubts should be resolved in favor of the act. 112 Ark. 346; 89 Id. 459; 60 Id. 343.

5. The act provides for deputies or assistants, which is not against our Constitution. 114 Ark. 212.

6. Our Constitution does not define the phrase, "county purposes." 18 So. 339-343; 36 Fla. 196; 33 Tenn. 637, 663; 62 Am. Dec. 424. The Legislature has carried out the object and purpose of our Constitution, and by this act counties are required to share their proportionate burden in this behalf, and the clause, "fees, costs, perquisites of office, or other compensation," is sufficiently broad to authorize the passage of this act.

SMITH J. MCCULLOCH, C. J., dissenting.

OPINION

SMITH, J.

This action was instituted by appellant as a taxpayer of Sebastian County, which is in the 12th Judicial Circuit, to enjoin the issuance and payment of warrants out of county funds to the prosecuting attorney for salary and expenses of his office under an act of the General Assembly approved March 22, 1919 (Acts 1919, p. 248), placing that officer on a salary and making certain allowances for the expense of his office and for the services of deputies. This suit questions the constitutionality of that act. Several grounds of attack involve the questions which have been so frequently and for so long a time settled that we do not review them again. The question of the jurisdiction of the chancery court is raised, but that question may be considered settled by the opinion in the case of Quinn v. Reed, 130 Ark. 116, 197 S.W. 15, wherein it was held that the chancery court had jurisdiction of a suit brought by a taxpayer to restrain the county judge, clerk and treasurer from reissuing county warrants for a purpose not authorized by law.

One objection made to the act is that it creates a permanent State office in violation of article 16, section 9, of the Constitution. This objection is met by the statement that the act does not create a new office, for the office of prosecuting attorney is created by the Constitution itself. The act merely provides a compensation for that officer in lieu of fees and provides for the payment of this compensation.

It is said the act is an infringement upon the jurisdiction of the county court, in that it undertakes to disburse county funds. In reply to this contention, it may be answered that a similar contention was disposed of in the case of Cain v. Woodruff County, 89 Ark. 456, 117 S.W. 768. There the constitutionality of an act fixing the fees for keeping county prisoners was questioned of being in conflict with section 28, article 7, of the Constitution, and the court said: "The fees and salaries that are paid by the respective counties to their respective officers are matters of local concern to the respective counties; and yet no one doubts that the Legislature has the power to fix the amount of those fees and salaries, and does. It is because the exercise of that power is not in conflict with the provision of the Constitution relied herein upon by appellee. And so, too, the provisions of Act No. 136 of the General Assembly of 1907 are not inhibited by that provision of the Constitution." Moreover, the money disbursed is that entitled by way of fees under the authority of an act itself, as we hereinafter decide.

The serious question in the case is whether the act is in conflict with section 11 of article 19 of the Constitution. It is there provided that the Governor and certain other State officers shall each receive a salary to be established by law which shall not be increased or diminished during their respective terms, "nor shall any of them, except the prosecuting attorneys after the adoption of this Constitution, receive to his own use any fees, costs, perquisites of office or other compensation; and all fees that may hereafter be payable by law for any service performed by any officer mentioned in this section, except prosecuting attorneys, shall be paid in advance into the State treasury. Provided, that the salaries of the respective officers herein mentioned shall never exceed per annum * * *; for prosecuting attorney the sum of $ 400."

The act under review designates the compensation of the prosecuting attorney as salary and provides that the Greenwood District of Sebastian County shall pay $ 900 and the Fort Smith District shall pay the sum of $ 1,800 and that Scott County shall pay the sum of $ 300 as salary to the prosecuting attorney, and that said sums shall be in lieu of all fees allowed by law for his services. Certain allowances for expense are also made together with allowances for the services of deputies, which compensation is paid in the same manner and in lieu of fees. No change is made in the fees of the prosecuting attorney, but the act provides that these fees shall be paid into the treasury of the respective counties.

Section 7 of the act provides that the quorum courts shall annually appropriate the sums sufficient to cover the expenses provided for in the act, and that until a meeting is held by said quorum courts the respective county clerks shall issue upon vouchers approved by the respective county judges monthly warrants to cover the expense therein provided for and that at the first meeting of the quorum court an appropriation shall be made to cover such back warrants.

It is familiar law that any doubt about the constitutionality of any statute must be resolved in favor of its validity...