Durritt v. Buxton

• Decision Date: 30 January 1897
• Citation: 39 S.W. 56
• Parties: DURRITT et al. v. BUXTON et al.
• Court: Arkansas Supreme Court

Page 56

39 S.W. 56

DURRITT et al. v. BUXTON et al.

Supreme Court of Arkansas.

January 30, 1897.

Appeal from circuit court, Pike county; Will P. Feazell, Judge.

Action by J. M. Durritt and others against F. M. Buxton and others. From a judgment dismissing the complaint, plaintiff appeals. Affirmed.

J. H. Crawford, for appellants. W. C. Rodgers, for appellees.

BATTLE, J.

The courthouse 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 1½ 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 installments; 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 courthouse 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, 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:

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

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

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

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

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

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

"Seventh. 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. §§ 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 Co., 61 Ark. 74, 32 S. W. 116; 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...