Hill v. Cone
| Decision Date | 19 March 1928 |
| Docket Number | 297 |
| Citation | 3 S.W.2d 985,176 Ark. 697 |
| Parties | HILL v. CONE |
| Court | Arkansas Supreme Court |
Appeal from Pulaski Circuit Court, Second Division; Richard M. Mann Judge; reversed.
STATEMENT OF FACTS.
The appellants, the board of trustees of the Arkansas Tuberculosis Sanatorium, brought this suit against the Auditor of State for a mandamus to compel him to issue to them a warrant for $ 6,000, the balance alleged to have been appropriated for the sanatorium under acts Nos. 21 and 351 of the Acts of the General Assembly of 1927, and incidentally to determine what amount, if any, was still due the contractor George W. Fair, for the construction of the hospital at the Tuberculosis Sanatorium.
The hospital at the sanatorium was destroyed by fire on January 13, 1926, and on January 20, 1926, the Governor, under authority of § 2839, C. & M. Digest, issued a proclamation authorizing the board to incur an indebtedness of $ 35,000, with interest at the rate of six per cent. per annum, for the purpose of constructing a new hospital. That the indebtedness was incurred and a contract was entered into with George W. Fair, contractor, for the construction of the hospital building, which has been completed, and is now occupied.
The Legislature by said act 351 appropriated for the use of the board of trustees of the sanatorium the sum of $ 35,000 principal and $ 1,050 interest, for paying the indebtedness incurred in the construction of the hospital building, the act containing a provision that the Auditor shall issue no warrants pursuant thereto unless and until there shall have been filed with the said board of trustees receipts showing payment in full of all claims by contractors, laborers materialmen and others, for material and labor furnished and used in connection with the erection of said hospital building.
It was alleged that the auditor had issued warrants for all the said appropriation except $ 6,000, and, not-withstanding the board had filed the receipts with him, as required by the act, for all claims of whatever kind incurred in the construction of the hospital building, he had refused to issue a warrant to the board for the $ 6,000 of said appropriation, withholding the same on account of the pretended claim of George W. Fair which he claims the board owes him. It was alleged that Fair was the contractor, and claimed there was an unpaid balance due him, under his contract, which was unjust and unfounded and also that they had paid him all the amount due under the contract, and filed with the Auditor his receipt for the last and final payment, which was certified to by the architect superintending the construction, as the full amount due him; that Fair declined to receive the amount in full payment, however, and unjustly claims the board owes him some amount, and because of the pretended claim the Auditor refused to issue a warrant for the balance of the appropriation.
Fair was made a party defendant, so that he might assert his claim and have the court determine whatever amount, if any, was due him, so that the Auditor be required to issue a warrant for the amount due the board, and, if any amount is found to be due Fair, for such amount as might be due him.
The Auditor answered, admitting the passage of act 351, making the appropriation of the sum of $ 36,050 for paying the indebtedness incurred by the board in the construction of the hospital building. He set out the provisions of the act requiring receipts showing full payment of all indebtedness for the construction, before warrants should be issued in its payment, and admitted that he had issued warrants to the board for all the appropriation except $ 6,000, the board having first certified to him that they had paid out $ 46,124.21 for the construction of the building, which constituted full payment of everything, labor and materials, used in the building, for which the board was liable. Stated that he knew nothing about the controversy between the board and the contractor, but that, before issuing any warrants to the board, it had entered into a stipulation with Fair consenting that the Auditor should issue warrants in favor of the board for all the appropriation except $ 6,000, which was sufficient to cover the amount in controversy between the board and contractor. That he was ready and willing to issue warrants against the $ 6,000 appropriation to the persons entitled thereto after they are determined by the court. He asks that the controversy be determined, and that he be directed to issue warrants on the balance of the appropriation to the persons entitled thereto.
Fair answered, admitting the allegations of the complaint, except he denied that he had been paid the amount due under the contract and that the board had filed with the Auditor his receipt for the last and final payment, and denied that said payment was certified to by the architect as the just amount due him under the contract. Admitted that he declined to receive it in full payment. Alleged that the Auditor could not lawfully issue a warrant to the board for the $ 6,000 claimed to be due him, because it had not filed a receipt showing the payment of all claims for the construction of the building. Also alleged that the board of trustees had not filed with the Auditor the receipts required to be filed showing payment in full of all claims for the construction of the hospital, in accordance with § 1 of Acts 23 of 1927. Stated that he had made a contract for the erection of the building, the amount that had been paid him thereunder, that he was required to do certain extra work, and that there was a balance due him under the contract of $ 5,936.42, with interest at 6 per cent. from October 1, 1926. Prayed that the petition of...
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