Jones v. Adkins

• Citation: 280 S.W. 389,170 Ark. 298
• Decision Date: 01 February 1926
• Docket Number: 139
• Parties: JONES v. ADKINS
• Court: Supreme Court of Arkansas

280 S.W. 389

170 Ark. 298

JONES v. ADKINS

No. 139

Supreme Court of Arkansas

February 1, 1926

Mandamus to Pulaski Chancery Court; Joseph W. House, Jr. Special Chancellor; mandamus denied.

Writ denied, and petition dismissed.

Arthur Jones, pro se.

George W. Emerson and J. C. Marshall, for appellee.

WOOD J. HART, J., concurring. MCCULLOCH, C. J., dissenting. Mr Justice SMITH concurs.

OPINION

WOOD, J.

On the 27th of January, 1925, Arthur J. Jones filed his complaint in the Pulaski Chancery Court against Homer M. Adkins, the Fidelity & Deposit Company of Maryland, the New Amsterdam Casualty Company, and the Maryland Casualty Company. Jones alleged in substance that he is a citizen and taxpayer of Little Rock, Pulaski County, Arkansas; that Adkins is the sheriff and ex-officio tax collector of Pulaski County, and has been since January 1, 1923; that the other defendants were sureties on Adkins' official bond; that Adkins is allowed the sum of $ 5,000 per year as salary for the performance of his official duties and is prohibited under the Constitution from receiving and keeping for his own use any more than that sum. He alleged in substance that Adkins had collected above his salary a sum amounting to over $ 50,000, which sum he refused to turn into the county treasury for the benefit of the plaintiff and other taxpayers. He alleged that a complete itemized account of the moneys and emoluments received and kept by Adkins is shown by the report of one Frank Wittenberg, a public accountant, covering a part of defendant's incumbency, part of which report he attaches and makes a part of his complaint. He averred that Adkins was required to keep a complete, accurate and itemized account of the fees received by him, and to account therefor, and to turn the same over to the county treasurer of Pulaski County. He alleged that Adkins had refused to place to the credit of Pulaski County the fees and perquisites collected by him, although demand had been made upon him by both the county and circuit judges of Pulaski County. Jones prayed, on his behalf and on behalf of all other taxpayers of Pulaski County, that Adkins be required to answer under oath and give an accurate statement of all fees, salaries and perquisites and other moneys collected by him during his term of office, and that he show what portion thereof he had kept for himself and what portion he had turned over to the treasurer of Pulaski County, and that an order be issued by the chancery court commanding him to pay to Pulaski County all moneys received by him in excess of his salary of $ 5,000 per annum allowed under the Constitution and laws of the State of Arkansas; that, upon his failure to pay said amount into the treasury for the benefit of plaintiff and other taxpayers, a judgment be rendered against him and the sureties on his official bond in the complaint named for the amounts found to be due by him to Pulaski County, and for all proper and equitable relief.

Adkins filed a separate answer to the complaint, in which he admitted that he was the sheriff and ex-officio tax collector as therein alleged. He specifically denied all the other allegations of the complaint, and alleged that he has made due and proper report as required by law, of all moneys received and paid out by him, and has turned into the county treasury all sums to which Pulaski County is entitled, and he prayed that he be discharged with costs.

The New Amsterdam Company filed a separate answer, denying that it was a surety upon the bond of Adkins, and denied the other allegations of the complaint. The Fidelity & Deposit Company, and likewise the Maryland Casualty Company, filed their respective answers in which they adopted the answer of Adkins so far as same was applicable to them, and prayed that they be dismissed with their costs.

On the 2d of May, 1925, Jones filed a motion in which he asked that a subpoena duces tecum be issued to Adkins requiring him to produce before the court on May 7, 1925, all books, records and papers in his office pertaining to the issues involved, which be designated in his motion as the sheriff and collector's general ledger for the years 1923 and 1924, sheriff and collector's cash journal for the years 1923 and 1924, and all books, papers, records or writings relating to the cost of feeding prisoners in the county jail for those years, and also all books, papers and records which may reflect the receipts and disbursements of all moneys received and disbursed by Adkins during those years.

On the first of May, 1925, a subpoena was issued out of the chancery court to the sheriff of Pulaski County, Arkansas, directing him to command William Rogers, of the county clerk's office, to appear before the chancery court and to bring with him the audit of Pulaski County as made by Leathem & Co. up to January 1, 1925, and to bring with him the general ledger of the treasury department, the general ledger of the collector's department, the warrant register, the receipt book covering the collection of delinquent personal taxes for the years 1923 and 1924; and also commanding him to summon Eugene Greenfield, in the county treasurer's office, to bring with him the treasurer's general ledger for 1923 and 1924; and to summon G. L. Mallory, United States marshal, or his deputy, to bring the books in the marshal's office bearing the record of the support of the Federal prisoners for the years 1923 and 1924; and Albert Simms of the State Highway Department to bring with him the general ledger of that department for the years 1923 and 1924; and Leo Vaulkmer, Mayor Chas. E. Moyer, Judge John W. Wade, Dr. E. P. Bledsoe and Warden Clifton Evans to appear on the 7th day of May to testify in behalf of the plaintiff in the action. This subpoena was duly served on the 6th day of May, 1925.

On May 11, 1925, Adkins filed a motion in which he alleged that the issues involved in the cause required an audit of all receipts and disbursements by himself as sheriff and collector for the years 1923 and 1924, which amounted in the aggregate to approximately $ 8,000,000; that, to determine whether any sums were illegally received and retained by him, or whether any sum was due by him to the county, would require an audit of his entire account involving the above sum; that, at the instance of Jones, the plaintiff, a subpoena duces tecum had been issued for the defendant Adkins in which he was required to bring into court the following:

Sheriff and collector's general ledger for Pulaski county for the years 1923 and 1924; sheriff and collector's cash journal for Pulaski County for the years 1923 and 1924; any books, papers, records or other writings relative to the cost of feeding prisoners in the Pulaski County jail for the years 1923 and 1924; and all books, papers and records which may reflect the receipts and disbursements of any and all moneys received and disbursed by the said Homer M. Adkins, sheriff and collector of Pulaski County, Arkansas, during the years 1923 and 1924.

Adkins alleged that an examination of the documents requested to be produced would require the services of an auditor especially skilled in the matters of accounting, and that the hearing of testimony of said auditor and other witnesses as may be introduced by the plaintiff and defendant would require a period of not less than sixty days. He therefore prayed that the court appoint a master and auditor, with power to employ stenographers and incur such other expenses as might be necessary and incident to the taking of the necessary testimony. The court granted the motion and appointed Charles H. Orto master, and directed him to ascertain all fees received by Adkins both as sheriff and collector during the years 1923 and 1924 from all sources, including the amounts received from what is known as "jail fees" or fees for maintaining the jail and feeding prisoners therein, and also all credits to which said sheriff and collector may be entitled as against all of such fees and as against collections from said jail during said period of time. The court further ordered that each of the parties to the action deposit with the clerk of the court the sum of $ 1,000 in cash, or a bond for said amount, with security to be approved by the clerk of the court within ten days from the date of the order, the same being as a guaranty for the payment of the expenses of said master. The court further ordered that if, during the progress of the trial, it appeared that said sums were insufficient, said parties should deposit such additional sums as the court might deem necessary to guarantee the full payment of the services of the master. The plaintiff Jones objected and excepted to the action of the court in making the order.

In compliance with the above order, on the 20th of June, 1925, Jones filed his bond in the sum of $ 350 with J. M. Wells as surety thereon, which bond was duly approved by the clerk. The bond specified that it was for the payment of all costs not to exceed the sum of $ 350 for auditing as master the books of the defendant as sheriff and collector as per order of the Pulaski Chancery Court. The bond was signed by Wells and Jones.

On August 6, 1925, J. R. Alexander filed a motion in which he stated that he had contributed to a fund required as a deposit for expenses in the above entitled cause the sum of $ 350 in cash, which fund was in the hands of the clerk of the Pulaski Chancery Court, and he stated that, upon further consideration, he did not desire to contribute said amount to the fund, and asked the court to direct the clerk to return the same to him. Jones filed a response to the motion of Alexander, in which he alleged that Alexander, at the request of the plaintiff, had voluntarily deposited the...