Durrett v. Buxton

• Decision Date: 30 January 1897
• Citation: 39 S.W. 56,63 Ark. 397
• Parties: DURRETT v. BUXTON
• Court: Arkansas Supreme Court

39 S.W. 56

63 Ark. 397

DURRETT v. BUXTON

Supreme Court of Arkansas

January 30, 1897

Appeal from Pike Circuit Court, WILL P. FEAZEL, Judge.

Decree affirmed.

J. H Crawford for appellants.

A contract to build a court house without an appropriation therefor, in dollars and cents, is invalid. Sand. & H. Dig secs. 1279, 1276, subd. 1, 1278, 1277, 6418; Const. 1874 art. 16, secs. 12, 13, and art. 5, sec. 29; 34 Ark. 307-310; 61 id. 74; 54 id. 645, 657, 659. As to what is necessary to constitute an appropriation, see 106 Cal. 113. See also 30 Ark. 609, 612; Cooley, Taxation, p. 280. The contract is illegal, and appellees are chargeable as trustees of the county's funds.52 Ark. 545; 50 id. 447, 452; 59 id. 344 357.

W. C. Rodgers for appellees.

There was an appropriation by the county court. One and a half mills were levied by the levying court to build the court house. This was a direct appropriation of the sum raised in dollars and cents to that purpose, and it could be used for no other, and 54 Ark. 645 does not militate against this contention. See 61 Ark. 74: 30 id. 609. Appellants are estopped, 3 De Gex, M. & G. 304, 310, 311; 74 Ind. 409, 413, 414; High, Inj. (2d Ed.) sec. 7; 26 Ga. 117, 120; 5 Ark. 107, 110; 115 Md. 613, 620; 3 Beav. 133; 12 id. 1, 3. The court house has been completed, and the injunction would be futile. 58 Mich. 286; 12 Fla. 100, 101, 26; 2 Green, Chancery (3 N. J. Eq.), 141, 146; 79 Ind. 109; 70 N.Y. 518; 43 Ill.App. 25, 30; 68 Ill. 121; 81 Cal. 148; 12 So. Rep. 834; 16 Wis. 692.

OPINION

BATTLE, J.

The court house of Pike county having been destroyed by fire, the county court of that county, composed of the county judge and justices of the peace, while sitting for the purpose of levying taxes and making appropriations, at the October term in 1895, levied on the taxable property of the county one and a half mills on the dollar for rebuilding the same. No other levy or appropriation for that purpose was made by the levying court. Having determined to rebuild, the county court, at its April term in 1896, appointed a commissioner to prepare plans and specifications for the building, and to advertise for bids, which was done. Buxton & Wright, being the lowest bidders, were awarded the contract for $ 2,698.50, to be paid in specified instalments; all of which acts and doings were done under the order of the court, and were by it approved. This action was brought to prevent the building of the court house under this contract. On a final hearing the complaint was dismissed, and the plaintiffs appealed.

The validity of the contract for the building is assailed on the ground that there was no appropriation made by the county court, when organized for levying taxes and making appropriations, for such a purpose. This attack is based on section 1279 of Sand. & H. Dig., which provides: "No county court or agent of any county shall hereafter make any contract on behalf of the county unless an appropriation has been previously made therefor and is wholly or in part unexpended."

The applicability of this section to the case before us will be better understood by an examination of other sections of the act of March 18, 1879, of which it is a component part. After providing for the organization of the court for the levying of taxes and making appropriations, the act provides that the county judge shall submit a written report of "the condition of the poor house and the terms upon which the same may have been let out, and all other matters of a public nature connected therewith, and the condition of all of the public property of the county, including public buildings and records, and shall make such recommendations as may seem good to him, or as may have been submitted by the grand jury of the county." After this the act provides that the court shall proceed to the making of appropriations for the expenses of the county or district for the current year in the following order:

"1. To defray the lawful expenses of the several courts of record of the county or district, and the lawful proceedings in magistrates' courts, stating the expenses of each of said courts separately.

"2. To defray the expenses of persons accused or convicted of crime in the county jail.

"3. To defray the expenses of making the assessment and tax books and collecting taxes on real and personal property.

"4. To defray the lawful expense of public records of the county or district.

"5. To defray the expense of keeping paupers of the county or district.

"6. To defray the expense of building and repairing public roads and bridges and repairing and taking care of public property.

"7. To defray such other expenses of county government as are allowed by the laws of this state": and that "the court shall specify the amount of appropriations for each purpose in dollars and cents, and the total amount of appropriations for all county or district purposes for any one year shall not exceed ninety per cent. of the taxes levied for that year." Sand. & H. Dig., sees. 1276, 1277.

Under so much of the act as we have copied into this opinion it has been held by this court that a contract for building a county turnpike or bridge, made without a previous appropriation therefor by the levying court, is void. Wiegel v. Pulaski County, 61 Ark. 74, 32 S.W. 116; Fones Hardware Co. v. Erb, 54 Ark. 645, 17 S.W. 7. In the last case cited, which involved the building of a bridge, and to some extent the construction of the act, the court said: "It is the policy of the act to require the concurring judgment of the levying court and of the county judge that a bridge should be built, before a contract for building it can be made. When the levying court makes an appropriation to pay for one, that signifies its favorable judgment; and the county judge may afterwards signify his by letting the contract. * * * * While we think that a contract cannot be made before there has been an appropriation for it, we do not think that, when an appropriation has been made, the contract will be limited to the amount appropriated. When the levying court appropriates any sum for the work, that signifies their judgment that the work should be done, and the county judge may then proceed to contract for it without further consulting them, the only limitations upon his power being found in other directions."

But in the act of March 18, 1879, although it undertakes to specify for what purposes appropriations shall be made, there is no mention of the building of court houses. The clerk, sheriff treasurer and county judge of the county are required by it to make written reports for the purpose of furnishing information to the levying court to...