Jeffery v. Trevathan

• Decision Date: 16 May 1949
• Docket Number: 4-8870
• Citation: 220 S.W.2d 412,215 Ark. 311
• Parties: Jeffery, County Judge v. Trevathan
• Court: Arkansas Supreme Court

220 S.W.2d 412

215 Ark. 311

Jeffery, County Judge v. Trevathan

No. 4-8870

Supreme Court of Arkansas

May 16, 1949

Appeal from Independence Circuit Court; S. M. Bone, Judge.

Affirmed in Part and Reversed in Part.

Millard G. Hardin, M. F. Highsmith and W. M Thompson, for appellant.

C M. Erwin, for appellee.

Barber, Henry & Thurman, Amici Curiae.

OPINION

Ed. F. McFaddin, Justice.

The Publicity Act (Initiative Act No. 2 of 1914) is involved on this appeal, as also are questions of res judicata and Mandamus.

Appellee Trevathan (plaintiff below) owns and publishes a newspaper in Independence county, known as "Batesville News Review." Appellant Jeffery is the County Judge of Independence county, and the other appellants are all of the other members of the Quorum Court. ^[1] They were the defendants in the Circuit Court. The plaintiff filed a complaint praying for a writ of mandamus to compel the defendants as the Quorum Court to make certain appropriations. The defendants stood on their demurrer, which was overruled. Thereupon the writ of mandamus was issued as prayed; and the appellants have appealed.

In 1947, the County Clerk of Independence county -- acting under the provisions of §§ 4 and 5 of the Initiative Act No. 2 of 1914 (§§ 8792-93, Pope's Digest) caused to be published in the plaintiff's newspaper a summary of the proceedings of the County Board of Equalization and also a list of the claims allowed by the County Court. The total cost for the publication of these items in 1947 amounted to $ 316.80; and we will refer to this amount as "the 1947 claim." The plaintiff filed his claim with the County Court for the $ 316.80, and the claim was disallowed. The plaintiff appealed to the Circuit Court, which by its judgment of April 12, 1947, affirmed the disallowance made by the County Court, saying:

"This claim seems to be just and legal, but there was no appropriation whatever made by the Quorum Court of this County for the purpose of taking care of this claim or claims of this nature. And under the rulings of the (Supreme) Court in that particular case, ^[2] which seems to be identical with the facts here, this court will have to hold, as a matter of law, that the claim should not be allowed. There will be a judgment here for the defendant Independence County."

The plaintiff appeared before the Quorum Court at its regular meeting in November, 1948, and urged that an appropriation be made, not only for the 1947 claim, but also for the payment of claims in 1948 arising because the County Clerk continued in 1948 to have matters published, as required by §§ 8792-93, Pope's Digest. The Quorum Court refused to make any such appropriation for 1947 or 1948, although ample funds were available for such purposes, and unused for any other purpose.

In 1948, the Clerk of Independence County -- continuing to act under § 5 of Initiated Act No. 2 of 1914 -- caused to be published in the plaintiff's newspaper a list of all the claims allowed by the County Court. The total cost for the publication of these amounted to $ 180; and we will refer to this amount as "the 1948 claim." Instead of filing the 1948 claim with the County Court, the plaintiff on December 2, 1948, filed the present action in the Circuit Court, alleging all the facts as heretofore recited, and further alleging:

". . . that on the 1st day of November, 1948, there was in the treasury of Independence County, Arkansas, to the credit of the county general fund the sum of nineteen thousand fifteen and 55/100 dollars ($ 19,015.55) and that there is now, a surplus in the treasury of Independence County, Arkansas, over and above all outstanding warrants and allowed claims an amount in excess of ten thousand dollars.

. . .

"That at the time of the publication of all of said notices, . . . and at this time, there are ample funds in the treasury of Independence County, Arkansas, to pay all of said claims . . . and this plaintiff has no adequate remedy at law unless the Quorum Court of Independence County, Arkansas, the defendants herein, appropriate funds for the payment of said claim; . . .

. . .

"That it was the duty of the defendants acting as members of the Quorum Court of Independence County, Arkansas, to appropriate sufficient monies from the treasury of Independence County, Arkansas, to pay the claim . . . for the year 1948 and that they had no discretion or right to deny or refuse to make such appropriation; . . . ."

The prayer of the complaint was for a writ of mandamus, requiring the Quorum Court to appropriate money from the ample funds of the county to pay, not only the 1947 claim previously disallowed, but also the 1948 claim which the plaintiff held for presentation to the County Court as soon as an appropriation might be made.

As aforesaid, the defendants filed their demurrer, and after it was overruled they elected to stand on it and suffered final judgment to be rendered, from which comes this appeal. A demurrer admits, for the purpose of a ruling thereon, all the facts that are well pleaded. Keith v. Pratt, 5 Ark. 661; Gardner v. Hill, 197 Ark. 550, 123 S.W.2d 1071; and see cases collected in West's Arkansas Digest, "Pleading, § 214.

We have summarized the salient facts stated in the complaint. Able briefs have been presented in this Court. We copy below the five points as listed by appellants on which they rely for reversal:

"First, because mandamus will not lie to control the actions of a ministerial body. That the body can be forced to act, but having once acted, its discretion cannot be controlled, if it has discretion.

"Second, because section 2527 of Pope's Digest provides the order in which the quorum courts shall make appropriations, and this Court has held that appropriations made under the first four paragraphs of this section are mandatory, but those made under paragraphs 5, 6 and 7 of said section are directory and contractual, and over which the quorum court has discretionary powers.

"Third, because claims against a county for publications under Initiated Act No. 2 of 1914 are contractual claims, they cannot be paid until an appropriation has been made by the quorum court, such appropriation must be made under authority of paragraph 7 of section 2527 of Pope's Digest, and since it is a contractual claim, the quorum court and the county court have discretion as to whether or not appropriations are made to pay such claims.

"Fourth, because Initiated Act No. 2 of 1914 is unconstitutional.

"Fifth, because $ 316, of appellee's claim, is res judicata."

We proceed to dispose of the issues in the following topic headings.

I. The 1947 Claim as Res Judicata. This is the appellants' fifth point, as above listed. We will first consider it, before coming to the real and important issues. The plaintiff is entitled to no relief for the 1947 claim. The Circuit Court disallowed this claim on April 12, 1948, and that judgment has become final, because more than six months have passed, and no appeal has been lodged in this Court. See § 2746, Pope's Digest, and Webster v. Horton, 188 Ark. 610, 67 S.W.2d 200, and cases collected in West's Arkansas Digest, "Judgment", § 564. So, in the eyes of the law, there is now no subsisting 1947 claim, and therefore the plaintiff has no standing in court to seek a mandamus to have an appropriation made to pay a claim that is barred.

It is true that the Circuit Court in its order of April 12, 1948, disallowing the 1947 claim expressed the thought that the judgment of disallowance would not be considered as res judicata if the Quorum Court subsequently made an appropriation. But the equitable intentions of the Circuit Court cannot alter the law that a solemn judgment of the Court disallowing the claim has become final. The main benefit the plaintiff gained by the 1947 claim was the indication as to what to expect if he presented his 1948 claim to the County Court before an appropriation had been made. Also, the plaintiff's experience regarding his 1947 claim clearly indicates his belief in the necessity of a mandamus proceeding to have an appropriation made before he presents his 1948 claim. So we consider the 1947 claim of $ 316.80 as passing out of this litigation, and we proceed to consider the mandamus case as applying to the 1948 claim which has never been disallowed.

II. The Publicity Act of 1914. In their fourth point appellants claim that this Act is unconstitutional. We will first discuss the Act and the cases involving it, and then consider the appellants' argument.

At the general election in 1914 the People adopted Initiative Act No. 2 referred to heretofore and herein as the "Publicity Act." It consists of 14 sections and is found in its entirety on page 1511, et seq., of the Printed Acts of 1915. The major portions thereof are to be found in §§ 8788-8801, inclusive, Pope's Digest, and in §§ 15-201 to 15-212, inclusive, of Ark. Stats. of 1947. By Act 239 of 1933 § 12 of the Publicity Act was amended in particulars not here important, except to show that the 1933 Legislature recognized the efficacy of the Publicity Act.

This Act has been before this Court in the following three cases, to wit: Nevada County v. News Printing Co., 139 Ark. 502, 206 S.W. 899; Smackover Journal v. News-Times Publishing Co., 185 Ark. 523, 48 S.W.2d 219; and Pressley v. Deal, 192 Ark. 217, 90 S.W.2d 757. We discuss the first two of these cases:

1. Nevada County v. News Publishing Co. was decided in 1918. In that case the County Clerk caused publication to be made as required by the Publicity Act; the newspaper publisher filed in the County Court a claim for the cost of publication; the County Court disallowed the claim; the Circuit Court reversed the County Court; and the case was appealed to...