Hilliard v. Bunker

• Decision Date: 21 July 1900
• Citation: 58 S.W. 362,68 Ark. 340
• Parties: HILLIARD v. BUNKER
• Court: Arkansas Supreme Court

58 S.W. 362

68 Ark. 340

HILLIARD v. BUNKER

Supreme Court of Arkansas

July 21, 1900

Appeal from Chicot Circuit Court in Chancery, MARCUS L. HAWKINS Judge.

Decree affirmed.

Robinson & Merritt, for appellants.

The appropriation was made by the county court at a time when the law did not provide for the holding of said court, and hence is coram non judice and void. 2 Ark. 229; 20 Ark. 77; 27 Ark 414; 32 Ark. 687; Sand. & H. Dig., § 1163. The court will take judicial notice that October 2, 1899, was the first Monday in October. 38 Ark. 548. The court for levying taxes and making appropriations is a county court, within § 1163, Sand. & H. Dig. 32 Ark. 687. The chancery court has jurisdiction, and injunction is the proper and only remedy. Const. Ark. art. 16, § 13; 46 Ark. 471; 58 Ark. 187; 54 Ark. 645.

Baldy Vinson, for appellees and cross-appellants.

The levying court that met on October 2, 1899, was held on the proper day. Section 6417, Sand. & H. Dig., is not repealed or modified by § 1163, id. The county court is one of superior jurisdiction, and recording is not necessary to the validity of its acts. 59 Ark. 588; 40 Ark. 224. Courts have authority to adjourn from day to day. 2 Ark. 229; 48 Ark 227; 55 Ark. 213. Even if the appropriation made by the quorum court is void, the contract sought to be enjoined is valid. No appropriation was required, it being the duty of the county court to enter into a contract for a good and sufficient court house and jail. 63 Ark. 402; act March 18 1879; 36 Ark. 641; Sand. & H. Dig., § 841.The county court had exclusive jurisdiction of the matter originally. Const. Ark. art. 7, § 28; 43 Ark. 67; 5 Ark. 21.Chancery court has no power to issue the injunction asked.33 Ark. 192; 34 Ark. 356; Const. Ark. art. 7; § 15; id. art.7, § 30; id. art. 7, § 35; Sand. & H. Dig., §§ 6423-6425.

OPINION

BUNN, C. J.

This is a bill in chancery to enjoin the court house and jail commissioners of Chicot county from letting a contract to build a court house and jail at Lake Village, as ordered by the county court. The bill sets up various objections to the proceedings of the county court, both as a tax levying and appropriation court, and while sitting as the ordinary county court; to all of which objections the defendants interposed a demurrer, assigning sundry grounds therefor. Most of the allegations to which the several specific demurrers are interposed are mere averments of objections to the manner in which the county court had assumed to exercise its undoubted jurisdiction. To all of these allegations, except as to the character of the notice for bidders given by the commissioners, the demurrer was sustained by the chancellor, and properly so. The chancellor also sustained the demurrer on the four general grounds, and in this also he was correct, in our view of the law in relation thereto, as will appear from what follows in considering the several questions necessary to be discussed as they arise in their order.

The history of the proceedings of the county court, both as an ordinary court and a levying court, and of the county commissioners, complained of in the complaint, is as follows, viz.: On the 11th day of July, 1889, it being a day of the regular July term of the Chicot county court, that court, among other things, appointed John C. Connerly, O. C. Stearns, Walter Davis, N.W. Bunker and Baldy Vinson, as commissioners of the court, to examine into the condition of the court house and jail of said county, "with special reference to building a fire-proof vault for the records of the county, and with directions to report at the following October term." On the first Monday in October, 1899, it being the 2d day of that month, the county court, with the justices of the peace of the county, met to make appropriations and levy taxes for the year, and to this court said county court commissioners reported; and in their report they showed that the court house and jail were both in such bad condition as to be incapable of being repaired so as to make them serviceable for their purposes, and they therefore earnestly recommended the building of a new court house and jail, presenting to the court, at the same time, such information on the subject as they had obtained upon diligent inquiry and investigation as they thought would be of benefit to the court in the premises. Upon consideration the levying court approved the report and the recommendation therein contained, and appropriated the sum of fifteen thousand dollars for the building of a court house, and ten thousand dollars for the building of a jail, and made an order directing the regular county court to appoint commissioners for that purpose, the judge thereof to be one of them, and the record shows that court then adjourned for two weeks--that is, until the 16th October, 1899. There is no further record of the convening or adjournment of that court for that year. This much appears, however: that at its meeting on the 2d of October it made, succinctly and separately in their order, what appears to be the appropriations for the current and ordinary expenses of the county for the year, in addition to the court house and jail appropriations aforesaid. The opening order of the levying court, which convened on the first Monday in October aforesaid, is as follows, to-wit: "Be it remembered that on this the 2d day of October, 1899, the same being the day fixed by law for the meeting of the Chicot county court, were presiding Hon. Charles F. Wells, Judge, and a majority of the justices of the peace for said county, met at the court house in the town of Lake Village, Chicot county, Arkansas, for the purpose of making appropriations and levying taxes for the year 1899, and Frank Strong, sheriff, and Johnson Chapman, clerk also being present, and the opening of same being proclaimed in due form of law by the sheriff, the following proceedings were had, to-wit: It is ordered by the court that the clerk call the roll of justices of the peace, which was accordingly done, when the following-named justices answered to their names, to-wit: [here follow the names of eleven justices of the peace], and, there being a majority of the qualified justices of the peace present, the court proceeded with its business in the following order, to-wit." Then from page 31 to page 36, inclusive, of the transcript filed by defendants herein appear the minutes of the court making appropriations, except as to the court house and jail, of which the minutes appear on pages 23 and 24. The following is the adjourning order: "The court now sitting for the purpose of making appropriations and levying taxes for the year 1899, having completed its duties, stands adjourned by operation of law for two weeks, or until October 16, 1899." Then follow blank places for names of justices, but none appear to have been given.

The first question raised by the allegations of the complaint and demurrer thereto is, does the record show that a majority of the justices of the peace were present on the 2d of October, 1899? The roll was called, and eleven answered to their names, and these names appear in the record of the call, and these were declared to be a majority of the justices of the peace of the county; and the minutes of the proceedings of that day further show that each and every item of the general appropriations for the current year were taken up one by one, and voted upon, and that each item was adopted by a unanimous vote; and that this was also true of the items of building the court house and jail and the appropriations therefor. The object of the minute record in such cases is to show that each item of appropriation received a majority vote of the members of the court present and participating, when these constitute a majority of the justices of the county. The record of the proceedings in this case show a substantial compliance with the statute. The rule which requires the yeas and nays to be called and taken down is applicable solely to legislative bodies. Thus the constitution contains such a provision as to the legislature, and the statute requires the observance of it by town and city councils in voting upon certain classes of propositions, but there is no rule of the kind applicable to judicial bodies in this state.

The next and more serious question to be considered is, was the first Monday in October, 1899,...