House v. Brazil

• Decision Date: 20 June 1938
• Docket Number: No. 4-5106.,4-5106.
• Citation: 119 S.W.2d 397
• Parties: HOUSE v. BRAZIL, County Judge, et al.
• Court: Arkansas Supreme Court

Page 397

119 S.W.2d 397

HOUSE v. BRAZIL, County Judge, et al.

No. 4-5106.

Supreme Court of Arkansas.

June 20, 1938.

Petition for Rehearing Withdrawn September 8, 1938.

Appeal from Perry Chancery Court; J. E. Chambers, Chancellor.

Action by Baylor House against Oscar Brazil, County Judge of Perry County, and Claude Flewellen, County Treasurer of Perry County, to enjoin the defendants from appropriating funds accruing to the salary account of the sheriff who was ex officio tax collector. From an adverse decree, the plaintiff appeals.

Affirmed.

J. M. Willemin, of Perryville, for appellant.

John T. Williams and Fred A. Donham, both of Little Rock, for appellees.

DONHAM, Justice.

In the November general election of 1934 the electors of Perry County initiated an act styled, "an act to fix salaries and expenses of county officers and to fix the manner in which such compensations and salaries shall be paid and to reduce the costs of the county and for other purposes."

Section 4 of the act provides: "The sheriff as such and as ex-officio tax collector, shall receive as compensation and salary, the sum of eighteen hundred dollars ($1,800) per year for performing all the duties of said office in lieu of the fees, commissions and other compensations now allowed by law, and shall receive no other or further compensations, emoluments or perquisites either directly or indirectly for services rendered as such sheriff and ex-officio tax collector, or as a result of holding the office. In addition thereto, he shall be paid actual and necessary expenses of travel of himself and deputies when on business for the county, but in no event shall he be allowed and paid more than five cents per circular mile for service of papers for the county or of litigants within the county and such litigants shall not be required to pay more than five cents per circular mile for the service of any summons, subpoena or other writ. Provided, that in no event, shall the salaries and expenses of said office annually exceed ninety (90) per cent of the gross receipts of the office and shall be payable only from such receipts."

Section 13 of the act provides: "After all salaries and expense claims have been paid as provided in this act, one-half of the surplus, if any, at the end of the fiscal year, shall be transferred to the Common School Fund and be apportioned and distributed among the common and special school districts as similar funds are apportioned and distributed, and the other half shall be transferred to the County General Fund."

During the year 1935 the gross receipts of the Sheriff's office in fees and commissions amounted to $2,848.30. During the year 1936 the gross receipts of the office in fees and commissions amounted to $2,199.49. In compliance with the terms of said act, the appellant, as Sheriff and Collector, was permitted to draw in payment of the salary of himself and deputies only ninety per cent of the funds collected in fees and commissions after the total thereof had been paid into the county treasury to the credit of the Sheriff's Salary Account.

The appellant filed suit in the Chancery Court of Perry County in which he prayed that the County Judge and County Treasurer, who are appellees here, be restrained and enjoined from appropriating any of the funds accruing to the Sheriff and Collector's Salary Account as directed by Section 13 of the act, which section is hereinabove quoted. It was alleged that the appropriation of the receipts of the Sheriff and Collector's office in fees and commissions above ninety per cent thereof, giving one-half, at the end of the fiscal year, to the Common School Fund and the other half to the County General Fund, was an unlawful diversion of the Sheriff and Collector's Salary Account.

Appellant further prayed that appellees be required to restore the funds previously taken from said account and which had been appropriated in accordance with said Section 13. It was alleged that the act was unconstitutional in so far as it appropriated all of the commissions above ninety per cent allowed to the Collector for collection of taxes. It was further alleged that the act was discriminatory since the salary of no other officer of the county was limited to ninety per cent of the fees and commissions collected. It was further alleged that the act was void, because it reduced the amount available to appellant for salary and expenses of his office so as to render the proper and efficient operation of the office impossible.

Appellees filed an answer, in which they denied every material allegation of the complaint and further set up as a defense the plea of res judicata, alleging that the matters involved in the suit were also involved in a suit in the Chancery Court of Perry County filed December 12, 1935, and in another suit filed in the Circuit Court of Perry County in the year 1937, in both of which suits the appellant, Baylor House, was a party.

It was further alleged in the answer that ten per cent of the funds accruing to appellant's salary account as Sheriff and Collector had been transferred from said account to the General Revenue Fund of Perry County by order of the County Court from which appellant had the right of appeal and from which he did not appeal.

After taking testimony on the issues involved, the court dismissed the complaint for want of equity. From the decree of the court dismissing the complaint appellant has appealed.

During the year 1935 appellant received as salary and expenses of his office the following amounts: To appellant personally $1,500; to first deputy $900; to second deputy $200.

During the year 1936 appellant received as salary and expenses of his office the following amounts: To appellant personally $1,323.24; to first deputy $600; to second deputy $80.

There is no contention made by appellant that he was not paid the full ninety per cent of the commissions and fees...