Greenberg Iron Co. v. Dixon

• Decision Date: 19 February 1917
• Docket Number: 178
• Citation: 192 S.W. 379,127 Ark. 470
• Parties: GREENBERG IRON CO. v. DIXON
• Court: Arkansas Supreme Court

192 S.W. 379

127 Ark. 470

GREENBERG IRON CO. v. DIXON

No. 178

Supreme Court of Arkansas

February 19, 1917

Appeal from Benton Circuit Court, J. S. Maples, Judge; reversed.

Judgment reversed and cause remanded.

Lindsey & Lindsey and Walker & Walker, for appellant.

1. The court erred in its refusal to declare the law as requested by appellant. The allowance by the county judge and court is a judgment and no appeal was taken. 33 Ark. 793; 22 Id. 595; 37 Id. 595; Ib. 654; Kirby's Digest, § 1487.

2. Where a contract is made by the county judge and later a warrant is issued, the contract is ratified and binds the county. 107 U.S. 355; 72 Ark. 330; 38 Id. 557; 96 U.S. 341-350; 122 Ark. 502.

3. Defendant has fulfilled his contract in good faith; the material has been furnished and the bridge built and accepted by the court and the bridge is being used by the public. The warrant was properly issued and should have been reissued.

McGill & Lindsey, for appellee.

1. No appropriation had been made to build county bridges by the county court. 77 Ark. 330; 61. Id. 4; 1073 Id. 468; 63 Id. 400, etc.

2. The warrant was not a proper charge against the county and should not have been reissued. The court had power to call in all warrants. Kirby's Digest, § 1175; 33 Ark. 793.

3. A county judge has no authority to make a contract in vacation. 55 Ark. 437; 58 Id. 494, 502; 97 Id. 321.

4. This was not a claim against the county. The court properly disallowed it. There is no error. 61 Ark. 74 to 79; 54 Id. 645; Kirby's Digest, §§ 1494-9; 36 Ark. 641; 98 Id. 493; 63 Id. 400; 49 Ark Law Rep. 336; 122 Ark. 557; 33 Id. 794.

OPINION

HART, J.

This is an appeal from a judgment of the circuit court affirming the judgment of the county court cancelling a certain warrant issued to A. L. Greenberg Iron Company in part payment for materials furnished by it to build a bridge on one of the main streets of the city of Bentonville, Arkansas. The facts are as follows:

The county judge and the city authorities of Bentonville decided to build a bridge on one of the main streets of the city. The materials were purchased from A. L. Greenberg Iron Company for $ 1,200.00 which was a reasonable price therefor. The city agreed to pay $ 500.00 of this amount and the county judge agreed to pay the remainder, $ 700.00. After the bridge was constructed and in use, the county court made an order that a warrant of $ 700.00 be issued to A. L Greenberg Iron Company, which was accordingly done. No appropriation was made by the levying court of Benton county to build said bridge. No notice of the proposed contract was published, no commissioners were appointed to locate the bridge, and the contract to construct it was not let to the lowest bidder at public outcry. Subsequent to these proceedings the court made an order calling in all the outstanding county warrants. The A. L. Greenberg Iron Company presented the warrant in question for $ 700.00 to the county court for cancellation and re-issuance. Sam Dixon, a citizen and tax-payer of the county appeared and contested the right of the company to have the warrant re-issued. The county court refused to reissue the warrant and as above stated the appeal here is from the decision of the circuit court affirming the judgment of the county court.

The judgment of the circuit court was wrong. It has been held that under our statute the county court has no power to let a contract to construct a bridge without some appropriation made for building bridges by the levying court. Fones Hardware Co. v. Erb, 54 Ark. 645, 17 S.W. 7. It cannot be determined from the record whether or not there was an appropriation for building bridges in Benton county for the year in question. It is true the record recites that there was no appropriation for building this particular bridge, but this was not necessary. Upon the authority above recited, if there was an appropriation for building bridges the county court had the power to act and is not limited to the amount appropriated. When the levying court appropriated any sum for building bridges, that indicates its judgment that the work should be done, and the county court in contracting for the construction of bridges, is not limited to the amount appropriated. The record being silent upon the question of whether or not an appropriation was made for building bridges, the county court could not refuse to re-issue the warrant. In construing our statute in regard to calling in, cancelling and re-issuing warrants, this court has held that the county court is not authorized to review its former judgments for mere errors in the allowance of claims but can only reject those which have been illegally or fraudulently issued. That is to say, a claim would be illegal where it was one which under no evidence that might have been adduced could...