Jobe v. Urquhart

• Citation: 143 S.W. 121,102 Ark. 470
• Parties: JOBE v. URQUHART
• Decision Date: 15 January 1912
• Court: Arkansas Supreme Court

143 S.W. 121

102 Ark. 470

JOBE v. URQUHART

Supreme Court of Arkansas

January 15, 1912

[Copyrighted Material Omitted]

Appeal from Pulaski Circuit Court, Second Division; F. Guy Fulk Judge; reversed.

STATEMENT BY THE COURT.

This controversy grows out of the purchase of a convict farm by the Board of Commissioners of the State Penitentiary, who were acting under the authority vested in them by act of the General Assembly approved June 24, 1897.

The Governor, Attorney General, Secretary of State, Auditor, and the Commissioner of Mines, Manufactures and Agriculture constituted said board.

By the terms of said act the board was given plenary powers to negotiate for the purchase or lease of a farm for the employment of the State convicts, but in case of a purchase of such farm the act limited the powers of said board in the manner of paying for same by providing that payments should be made out of the net profits arising from the operation of said farm.

Acting under this statute, the said board on the 21st day of November, 1902, entered under a contract with Edmond Urquhart, now deceased, for the purchase of two places known as the Cummins place and Maple Grove place, for which the said board agreed on the part of the State to pay $ 140,000, of which sum $ 30,000 was paid in cash, and on the unpaid balance the said board agreed to pay 6 per cent. interest per annum.

The record before us is silent as to the developments and progress under this contract until the Legislature passed an act at the session of 1909 appropriating $ 65,000, or so much thereof as might be necessary, to pay the estate of E. Urquhart for these farms.

Section 1 of said act reads as follows: "That $ 65,000, or so much thereof as may be necessary, be paid to the estate of E. Urquhart, deceased, for the purchase of convict farm according to the contract price and purchase between E. Urquhart and penitentiary commissioners purchasing farm, same to be paid out of the penitentiary fund."

Section 2 reads as follows: "It shall be the duty of the Auditor of State to calculate the amount owing to the estate of E. Urquhart according to the terms of the contract between the Board of Penitentiary Commissioners and E. Urquhart and to draw his warrant on the State Treasurer for such sum, and it shall be the duty of the State Treasurer to pay the same out of the amount herein appropriated." (Acts 1909, p. 1218.)

On the 20th day of April, 1911, the appellee filed in the Pulaski Circuit Court, Second Division, her petition for a writ of mandamus to be dirested against John R. Jobe, as Auditor of the State of Arkansas, alleging in substance that the Board of Penitentiary Commissioners, acting under the authority vested in said board by the act approved June 4, 1897, had bought the farms of her testator, E. Urquhart. That, for the purpose of paying off the balance of indebtedness owing to said estate for the purchase price of said farm bought of her testator, the Legislature by an act approved May 31, 1909, appropriated the sum of sixty-five thousand ($ 65,000) dollars, or so much thereof as might be necessary, to be paid to the estate of petitioner's testator for the purchase of said farm according to the contract price and purchase thereof, and the same to be paid out of the penitentiary fund. That by the terms of said act it was made the duty of said defendant as Auditor to make the calculation of the amount of balance due and draw his warrant on the State Treasurer for such sum. That, in compliance with act, said defendant did make said calculation according to the terms of the contract, and found there was due said estate the sum of $ 10,617.05, and the petitioner demanded that the said Auditor draw his warrant for same, which was refused; with a prayer for a writ of mandamus to be issued against said Auditor commanding him to draw his warrant on the Treasurer of the State for the amount owing to said estate."

On the 11th day of May, 1911, the defendant appeared through the Attorney General of the State, and filed a demurrer to the petition as follows:

"1. Because the facts, matters and things contained in the petition do not, in law, entitle the petitioner to a writ of mandamus or to the relief therein sought."

"2. Because the court has no jurisdiction to try this cause, as it is, in effect, a suit against the State of Arkansas."

On the same day the defendant below filed his answer or response to said petition in which he admitted the allegation of the petition to be true, but based his refusal to issue his warrant as requested, because the act of the General Assembly of the State of Arkansas approved June 4, 1897, which authorized the Board of Penitentiary Commissioners to purchase the farm, "did not authorize said board to contract for the payment of interest. That said board entered into a contract for the purchase of the farm at an agreed price of one hundred and forty thousand dollars, of which amount thirty thousand dollars was to be paid in cash, and said board contracted to pay interest at the rate of 6 per cent. per annum upon the balance to be paid. That in so doing the board exceeded its authority, and the provisions of the contract for the payment of interest was illegal and invalid, and did not bind the State to its performance. That the State of Arkansas had already paid to the plaintiff the full sum of $ 140,000, the contract price of the farm, and $ 26,888.62 as interest. That the balance claimed to be due is for interest, and that the act approved May 31, 1909, in so far as it appropriated any amount for the payment of interest, is unconstitutional and void."

"As a further defense, the defendant set up a partial failure of consideration of the contract of purchase, in this: The contract called for all of section 17, township 7, range 5, when in fact the plaintiff offered or tendered a deed to only a part of said section 17, which was over 280 acres of land less than the amount called for in the contract of sale.

"As a further defense, the defendant set up the fact that he was acting under the directions of the penitentiary board, and that on May 15, 1911, that body adopted a resolution which in effect directed the defendant not to issue a warrant for any further amount to the plaintiff." A copy of this resolution was made "Exhibit B" to the complaint.

It was manifest from the record before us that there is a clerical or typographical mistake relative to the date of the passage of this resolution. The copy of the resolution found in the transcript bears no date; but the answer filed on the 11th day of May, 1911, states that the resolution was passed on the 15th day of May, 1911, which is six days after the answer was filed.

From the history of the litigation, we conclude this resolution was passed by the board before these proceedings were begun; at least, it is safe to assume the resolution was passed before the answer was filed. This resolution reads as follows:

"Whereas, the written contract entered into between the Penitentiary Board and the Urquhart estate in November, 1902, calling for certain sections and fractional sections of land aggregating more than 7,000 acres, for which the penitentiary board agreed to pay the sum of $ 140,000; and,

"Whereas, the penitentiary board has, up to this time, paid said $ 140,000, principal, and in addition thereto has paid $ 26,888.62 in interest; and,

"Whereas, the Urquhart estate now claims a balance of more that $ 10,000 interest; and

"Whereas, said Urquhart estate does now tender the Penitentiary Board a deed containing more than 280 acres of land less than that which was specifically set out and described in the written contract with the Penitentiary Board of 1902; and,

"Whereas, the penitentiary board did not have authority to pay interest or to contract for the payment of interest in the purchase of the State farm; and, therefore be it

"Resolved, that the penitentiary board does hereby accept the deed heretofore tendered to the State for the said land, provided the Urquhart estate refund to the penitentiary, board the amount of money erroneously paid in interest to the Urquhart estate in excess of the contract price of $ 140,000, which is $ 26,888.62."

The plaintiff filed her demurrer to the response or answer of defendant as follows:

"Petitioner demurs to the response of the defendant herein on the ground that the facts therein stated do not constitute a defense to the relief prayed by the petitioner."

The records then as made up were submitted to the court, namely: the petition for the mandamus, the demurrer to same interposed by the defendant, the response or answer of the defendant, and the demurrer interposed by the plaintiff to this answer. Thereupon, the court overruled the defendant's demurrer to the plaintiff's petition, and sustained the plaintiff's demurrer to the defendant's answer.

The defendant saved proper exceptions, and elected to stand on his answer and response, declined to plead further; and thereupon the court entered a judgment in accordance with the prayer of the plaintiff's petition, from which judgment this appeal is taken and prosecuted.

Judgment reversed, and petition dismissed.

Hal L. Norwood, Attorney General and W. H. Rector, Assistant, for appellant.

Appellant's demurrer to appellee's petition should have been sustained. Jobe v. Urquhart, 98 Ark. 525. The State is not liable for interest in any case unless by express agreement she makes herself liable. 10 Ark. 61; 136 U.S. 211; 15 Tex. 72; 70 Ark. 578.

Moore, Smith & Moore, for appellee.

The State in all its contracts and dealings with individuals must be adjudged and must abide by the rules which govern in determining the rights of private citizens contracting with...