Appeal
from Garland Circuit Court, JOHN FLETCHER, Special Judge.
STATEMENT
BY THE COURT.
This is
a suit by Hot Spring county against Garland county for that
part of the indebtedness of Hot Spring county, for which that
part of Garland county taken from Hot Spring county was
liable.
The
findings and judgment of the court were as follows:
"This
cause coming on to be heard de novo upon the appeal being
taken by Hot Spring county from the order and judgment of the
Garland county court dismissing her claim filed under the
provisions of the act of the general assembly approved March
1, 1897, when Hot Spring county appeared by her attorney
James P. Clarke, esq., and Garland county by her attorneys
Greaves & Martin and Wood & Henderson, and the court, having
heard the evidence and the argument of parties, as well as
the argument of counsel for the respective parties, doth find
as follows:
"1.
That Garland county was formed under authority of an act of
the general assembly approved April 5, 1873, and of territory
taken in part from Hot Spring county; that the part so taken
constituted on said fifth day of April, 1873, 38.5 per cent
of the assessed value of all the property, real and personal
liable to taxation in Hot Spring county; that the said act of
April 5, 1873, made no provision for the assumption by
Garland county of the existing indebtedness of any of the
counties from which territory and inhabitants were taken in
the formation of said county.
"2.
That on March 1, 1897, the general assembly passed an act
making Garland county liable for such part of the
indebtedness of Hot Spring county existing on the 5th day of
April, 1873, as would be a fair apportionment to the citizens
of the territory detached from Hot Spring county and attached
to Garland County.
"3.
That on said 5th day of April, 1873, Hot Spring county was
indebted on account of ordinary warrants in the sum of $
4,957.26. That on the 12th day of February, 1873, the county
court of that county entered into a contract with one E. A
Nickels for the erection of a courthouse at Rockport, in said
county, under the terms of which contract the contractor was
to receive, on the execution by him of said contract, and a
bond for the proper compliance on his part, $ 22,000 in the
bonds of said county, and when said court house had
progressed to completion to the extent of two-thirds he was
to receivee $ 10,000 of said bonds additional, and upon its
completion he was to receive $ 11,000 more, being the entire
price named in said contract. About the date of the execution
of the contract and the filing of his bond in the middle of
February, 1873, the said Nickels received from the designated
depository $ 22,000 in the bonds of the county, the said
bonds being for $ 100 each and numbered 1 to 220, both
inclusive, and bearing interest at the rate of ten per cent.
per annum, payable annually, from the date thereof on the
delivery of the interest coupons attached; that the court
house never reached a stage of completion to the extent of
two-thirds. That $ 10,000 of said bonds, in addition to said
$ 22,000 thereof, were, notwithstanding said failure to so
partially complete said court house, issued, so that the same
became and were enforced as liability against said Hot Spring
county; these last named bonds being in denomination of $ 100
each, and numbered from 221 to 320 both inclusive."
"4.
That said last-mentioned bonds, so numbered from 221 to 320,
both inclusive, were not issued and delivered so as to
constitute a part of the indebtedness of Hot Spring county on
April 5, 1873.
"5.
That the validity of all of said bonds was disputed by Hot
Spring county; and after litigation between said county and
the holders of a part thereof as to the liability of said
county on said bonds, the same, by the judgment of the United
States circuit court for the Eastern district of Arkansas,
were declared to be a valid liability of the county at the
date of its said several judgments, these said judgments
being entered subsequent to January 1, 1876. Judgment against
said county on the account of the principal and interest of
said bonds numbered from 1 to 220 for the aggregate sum of $
45,191.37, and the county from time to time raised taxes
under mandamus proceedings in the court in which said
judgments were rendered, and paid on account of said
judgments, and the interest thereon, the aggregate sum of $
45,191.37, and, in addition thereto, paid the sum of $ 450 as
costs that accrued in defense of said actions; and in the
recovery of said judgments on the debt mentioned as bonds
from 1 to 220 the county also paid in said actions on said
bonds and the coupons thereof, as costs in the mandamus
proceedings taken by the plaintiffs in said judgments to
compel the levy and collection of taxes with which to satisfy
said judgments and the interest thereon, the sum of $ 450;
and also to the county collector for collecting the taxes to
pay said judgments the sum of $ 1,335.75 as commissions
allowed to him under the law; and to the county treasurer for
receiving and disbursing said taxes to the custodian entitled
to receive same $ 903.82, and to the clerk of the United
States circuit court as poundage for receiving said fund to
the several plaintiffs entitled thereto the sum of $ 451.90.
"6.
That judgments were also recovered in said court against Hot
Spring county upon the $ 10,000 in bonds numbered from 221 to
320 for the aggregate sum, on account of principal and
interest thereof, of $ 20,148.63. That the costs of
recovering said judgments were $ 450, the costs of mandamus
proceedings therein were $ 450, the collector's
commission $ 604.44; the county treasurer's commission $
402.96; the poundage of the clerk of the United States court
$ 201.48. That all of the judgments rendered against Hot
Spring county on account of said bonds and interest on said
judgments and all costs have been fully paid off by said
county.
"7.
That on the 5th day of April, 1873, Hot Spring county was
also indebted on account of obligations known as jail bonds
to the extent of principal and interest of $ 1,400, which has
been fully paid off.
"8.
That on said 5th day of April, 1873, there was in that part
of the territory not taken to form Garland county a jail
building of the value of $ 3,600. That there were no other
buildings or property belonging to said county, which
remained in said county after said date, of value to said Hot
Spring county."
"9.
Of the ordinary county warrants outstanding on the 5th day of
April, 1873, there was recovered against Hot Spring county,
on account thereof, judgments for $ 827.26, for principal,
and $ 243.42 for interest thereof, on account of which said
judgments and the interest thereon and cost of recovery said
county paid the aggregate sum of $ 1,115.68.
"The
court thereupon declares that Hot Spring county is entitled
to recover from Garland county 38.5 per cent of the aggregate
sum of outstanding warrants, diminished by the sum included
as principal in judgments on said warrants: the amount paid
on account of said warrants, and the interest thereon so
included in judgments, together with interest on said
judgments, and the costs of recovery; the sum of all payments
made on account of judgments for principal and interest of
bonds from 1 to 220 both inclusive, and interest on the said
judgments and cost of recovery. No interest being allowed to
Hot Spring county on any payment made by her subsequently to
the date of making such payment on account of said judgment,
nor will costs that accrued in any mandamus proceeding taken
by any of the plaintiffs in any of said judgments to secure
the levy and collection of a tax with which to pay off said
judgment be allowed to form a part of the claim upon which
the liability of Garland county shall be computed, nor
collector's commissions for collecting such taxes, nor
treasurer's commissions for receiving and paying of same,
nor poundage to the clerk of the United States circuit court
for receiving and disbursing sums paid him in satisfaction of
said judgments. The aggregate indebtedness thus shown shall
be diminished as of the 5th day of April, 1873, by the value
of the jail building in Hot Spring county $ 3,600. No
liability rests upon Garland county for any part of the
principal or interest of the bonds numbered from 221 to 320
both inclusive.
"It
is therefore by the court considered, ordered and adjudged
that Hot Spring county do have and recover of and from
Garland county the sum of $ 18,880.41 and all her costs in
this behalf expended. And the clerk of this court will
certify a copy of this judgment to the county court of
Garland county, and the said court is hereby ordered, to
enter the same upon its records as the judgment of that court
in this cause, and that said court cause to be issued in
satisfaction thereof warrants on the treasurer in accordance
with the act of March 1, 1897."
Each
side excepted to the findings of fact and declarations of
law, and appealed.
Judgment affirmed.
Wood & Henderson, and Greaves & Martin, for appellant.
It was
error for the court to refuse to consider the tax books in
evidence. Garland county was not responsible for interest and
costs accruing on the Hot Spring county debt, after its
formation. The legislature not having imposed any such
responsibility, the presumption is that it believed nothing
was due. 92 U.S. 307. The board of supervisors had power to
compromise and settle the suit with the contractor for the
court house. Gantt's Dig. § 595 and notes. And the
county is bound by its action. Herm. Est. § 435.
Appellant county is liable for only such equitable proportion
of the debt as can be...
