Elkins v. Huntington-Midland Highway District
Decision Date | 24 December 1923 |
Docket Number | 68 |
Citation | 256 S.W. 835,161 Ark. 556 |
Parties | ELKINS v. HUNTINGTON-MIDLAND HIGHWAY DISTRICT |
Court | Arkansas Supreme Court |
Appeal from Sebastian Chancery Court, Greenwood District; J. V Bourland, Chancellor; reversed in part.
Decree reversed and cause remanded.
John F Clifford, for appellant, Elkins.
Considering the claim of Elkins as strictly preliminary expenses, the certificates of indebtedness held by him were proper charges against the district. Act No. 298 of 1920, §§ 3, 16, 22, 23, 29; 149 Ark. 476; 119 Ark. 188. The action of the county court in approving the action of the commissioners was a valid exercise of the discretion placed in that court, and it will be presumed to have acted upon facts sufficient to maintain its action. 38 Ark. 156. No appeal from its action was taken, and, there being no allegations of fraud, accident or mistake alleged or proved, under such circumstances the correctness of its judgment cannot be attacked collaterally. 37 Ark. 540; 55 Ark. 275; 107 Ark. 142. As affecting the validity of the meeting of the board and the acts done, it was not essential that the minutes thereof be signed, or even that they be recorded. It was susceptible of parol proof. 103 Ark. 283; 71 Ark. 438; 79 Ark. 45, and cases cited.
G. L Grant and Geo. W. Johnson, for appellants.
The commissioners were not required by law to keep a written record of the proceedings of their board meetings. 103 Ark 283; 126 Ark. 622. However, a party cannot impeach a record which he himself introduces in evidence. Counsel for the receiver introduced the minute book of the meetings of the board. He cannot introduce it for one purpose and discard it for another, and is estopped from questioning its accuracy or its authenticity. 52 N.W. 341; 50 Am. Dec. 394. The action of the county court in relation to the claims was the action of a judicial tribunal which should have been respected by the chancellor. The burden of showing that the allowances made were inequitable and unjust was upon the parties attacking the allowances. 149 Ark. 476. Where services are rendered under a defectively executed contract, and such services are accepted, the contract is ratified. The commissioners accepted the plans, specifications and estimates from appellant Carter and submitted them to the county court for approval. That amounted to a ratification. 129 Ark. 211.
Pryor & Miles, for the receiver.
1. There was no order of the county court either authorizing or approving the loan of the money received from appellant. Section 16 of the act creating the district. The domicile of the district was Huntington. Section 4, Id. The negotiation of the loan at Little Rock was not the action of the board at its domicile.
2. All parties dealing with the commissioners of the district were bound to take notice of the limitation on the power of the commissioners imposed by the act. 94 Ark. 585; 152 Ark. 511.
3. It is clear from the evidence that the commissioners acted individually, or, more correctly speaking, that one member, now deceased, transacted all of the business for the district. They could act only as a board. 64 Ark. 490.
The Huntington-Midland Highway District (hereafter called district) was created by act No. 298 at the special session of the Legislature of 1920. The third section of that act provides for the appointment of three commissioners by the county court of Sebastian County. The following commissioners were duly appointed: Frank McCormack, John W. Jasper and W. P. Fitzgerald, who duly qualified as such and organized themselves into a board of the district, as provided in § 5 of the act. Section 4 of the act provides that the commissioners and their successors in office shall compose a body corporate under the name of the district, and, under such name, the district might contract and sue and be sued. The domicile of the corporation was fixed at Huntington, in the Greenwood District of Sebastian County. Carter & Knoch were employed by the board as engineers of the district. They made a preliminary survey and filed plans and specifications, with an estimate of the cost, etc. The board also employed the firm of Covington & Grant as attorneys for the district. The plans were approved by the county court, as required by the act, and the board proceeded to assess the benefits under the terms of the act.
Section 16 of the act, among other things, provides: "In order to hasten the work, the board may borrow money and issue its negotiable evidence of indebtedness for its payment, in such form as the board may adopt, and may issue bonds with interest coupons attached, or in such other form as the board may adopt, and dispose of them in such manner and for such amount as the board may deem best, subject to the approval of the county court."
Section 29 of the act provides: "If, for any reason, the improvements herein contemplated are not constructed, all obligations incurred by the commissioners for preliminary work of any kind shall be a lien and a charge on the lands of the district, and an assessment shall be made and a tax levied, as hereinabove provided, to that end, that the same may be paid."
On the 29th of December, 1920, the board of commissioners made a report to the county court, giving a full account of the proceedings of the board, from its organization to that date, and showing, among other things, that the board had entered into a contract for the construction of the work contemplated by the act, and that it had entered into a contract for the sale of the bonds as contemplated by the act. The report stated that Chas. B. Thweatt had been employed to prepare the necessary transcript of proceedings incident to the issuance of bonds, under a written contract, which it set forth. A contract had also been entered into with Carter & Knoch and with the attorneys, Covington & Grant, as heretofore mentioned. The report contained the following recital: The board of commissioners has incurred various items of expense, an itemized list of which is hereto attached and made a part hereof, for the making of the plans and for the preliminary expenses." The items of expense enumerated in this report are as follows:
Salary of assistant secretary
$ 1,050.00
C. B. Thweatt, attorney fee
500.00
Cash borrowed from M. W. Elkins
The $ 3,000 cash received has been spent as follows:
Paid H. R. Carter, engineering fee
$ 1,500.00
Commissioner's fees
180.00
Telephone messages
10.00
Covington & Grant, attorneys' fees
665.00
Geo. B. Rose, attorney fee
100.00
Salary to assistant secretary
450.00
Incidentals
95.00
he order of the county court approving the report of the commissioners is as follows:
After the above proceedings were had, this action was instituted in the Sebastian Chancery Court by M. W. Elkins on the 20th of November, 1920, against the district and its commissioners and against H. C. Lane and Covington & Grant. He alleged among other things in his complaint, that the district was indebted to him in the sum of $ 3,000, with interest, as evidenced by certain certificates, which he attached and made exhibits to his complaint. These certificates amounted in the aggregate to the sum of $ 3,000. He alleged that he had acquired them before maturity and for a valuable consideration; that they were issued by the district to the various parties named therein for preliminary expenses of the district; that Lane had indorsed the certificates issued to him for the amount of such certificates; that Grant had indorsed the certificate issued to Covington & Grant, and that they had thereby become liable to plaintiff Elkins for these amounts; that the plaintiff had a contract with the district to purchase its bonds issued in the sum of $ 100,000; that the district breached this contract and failed to deliver the bonds, to plaintiff's damage in the sum of $ 2,000; that the sums due the plaintiff on the certificates were long past due, and that the district and its commissioners refused to pay the same; that the district was insolvent, and that plaintiff had no adequate remedy...
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