Ladd v. Stubblefield

• Decision Date: 20 December 1937
• Docket Number: 4-4809
• Citation: 111 S.W.2d 555,195 Ark. 261
• Parties: LADD v. STUBBLEFIELD
• Court: Arkansas Supreme Court

111 S.W.2d 555

195 Ark. 261

LADD v. STUBBLEFIELD

4-4809

Supreme Court of Arkansas

December 20, 1937

Appeal from Johnson Circuit Court; A. B. Priddy, Judge; reversed.

Judgment reversed and cause reversed.

D B. Bartlett, J. J. Montgomery and Hays & Wait, for appellants.

Reynolds & Maze, for appellees.

OPINION

GRIFFIN SMITH, C. J.

Appellee Stubblefield became county and probate judge and ex-officio road commissioner of Johnson county on January 1, 1933. The petition for injunction, amended and supplemental petition, petition for writ of certiorari, and intervention, question legality of salary payments, and expense items incident to operation of an automobile used by Stubblefield in connection with his duties as road commissioner.

To these pleadings a demurrer was sustained, but before such action had been taken by the court, appellants asked leave and were granted the right to dismiss without prejudice as to all items of expense allowed for the benefit of appellee Stubblefield within six months prior to April 28, 1937. Appellants asked that appellees' demurrer be treated as a motion to transfer to equity. This was denied.

It is necessary (1) to determine whether the court had jurisdiction, and (2) whether appellants stated a cause of action.

It is alleged that appellee Stubblefield, for the months of January, February, March, and April, 1933, collected one-half of his salary, or $ 400, from the general road fund, and that from May (1933) to December, inclusive, his salary of $ 1,600 was paid from the general road fund. Also, that during 1934, 1935, 1936, and for January, February, and March, 1937, a period of 39 months, Stubblefield was paid his full salary of $ 7,800, such payment having been made from the county turn-back fund, and that these monthly payments of $ 200 each were made without an order of the county court ascertaining that any part of such salary was chargeable to the turn-back. It is further charged that during 1933 appellee Stubblefield, as county judge, approved allowances aggregating $ 424.77 from the general road fund for "repairing, washing, servicing, greasing, and fueling his private automobile," and that during 1934, 1935, 1936, and the first three months of 1937, he was the beneficiary of payments of a like character amounting to $ 1,439.66, a total of $ 1,864.43 which appellants allege was wrongfully paid from the county general road fund.

The prayer was that appellee Stubblefield "Be directed and compelled to replace, repay and refund to the road fund of the county the sum of $ 11,664.43, so illegally used and appropriated by him." Appellants also prayed that by certiorari the record of certain proceedings of the quorum court be brought up and that appropriations shown therein be declared void.

By act 97 of 1929, salaries of county and probate judges throughout the state were fixed. For Johnson county the amount so authorized was $ 2,400 per annum. By § 2 such judges were made ex-officio road commissioners, "And under the provisions of this act, any part of his salary, not to exceed one-half, may be chargeable to his county road fund or county highway fund, same to be fixed by the county court, subject to the approval of the quorum court; and, under this act, the several quorum courts of this state may make proper appropriations for the expenses of the several county and probate judges, as they deem proper, in the discharge of the duties of road commissioner herein created."

It is admitted that none of the appellants had any special interest in the litigation. In the original petition for injunction, filed in the circuit court April 1, 1937, appellants identify themselves as "Residents, citizens, taxpayers, and qualified electors of Johnson county." The amended petition was filed April 8. By stipulation of April 16 the following appears: "Plaintiffs may take into court as a part of their pleadings and issues to be settled, the validity of the so-called action of the quorum court of Johnson county at its January meeting in the year 1935 and 1937, by writ of certiorari, or otherwise; and also the plaintiffs may take by appeal from the orders of the county court of Johnson county the allowance of any of the claims brought into issue by the suit already filed so far as the same can be legally done, . . . and the defendant, H. C. Stubblefield, will enter his appearance, waiving service of summons thereby, . . . but it is expressly understood that in entering his appearance to the writ of certiorari and validity of the orders of the court, neither party hereto waives any legal right or the right to make any defense to which he might be entitled in law." Petition for writ of certiorari was filed April 28. On May 22 an order, signed by H. C. Stubblefield as county judge was filed in the circuit court, formally permitting appellants to intervene with respect to the county court judgments on the questioned claims, and allowing such parties an appeal.

Section 2913, Pope's Digest, provides that "Appeals shall be granted as a matter of right to the circuit court from all final orders and judgments of the county court, at any time within six months from the rendition of the same . . . by the party aggrieved filing an affidavit and prayer for an appeal."

Appellees pleaded this statute of limitations, saying: "If the plaintiffs had felt aggrieved at the judgment of the county court, they had their right to appeal, and if by their own carelessness and negligence they lost their remedy, they have no right to complain."

Section 51, art. VII, of the Constitution, reads as follows: "In all cases of allowances made for or against counties, cities or towns, an appeal shall lie to the circuit court of the county, at the instance of the party aggrieved, or on the intervention of any citizen or resident and taxpayer of such county, city or town."

This constitutional provision has been construed as denying the right of appeal of a citizen or resident and taxpayer who was not a party to the proceedings where the order of the court did not amount to an allowance against the county. Holmes v. Morgan, 52 Ark. 99, 12 S.W. 201. Fones Hardware Co. v. Erb, 54 Ark. 645, 17 S.W. 7, 13 L.R.A. 353, was a proceeding in chancery to enjoin a board of commissioners from building a bridge, for the payment of which no appropriation had been made. There it was said: "We can not say that the appellants could have obtained adequate relief by certiorari, for the want of jurisdiction arises from matters dehors the record. The remedy by appeal is inadequate, for the law does not give the taxpayer his day in court or provide that he may appeal without it. Since the remedy at law is not adequate and complete, we are of the opinion that injunction is the proper remedy."

In Bowman v. Frith, 73 Ark. 523, 84 S.W. 709, the holding was, as reflected by the syllabus: "If a county court has proceeded irregularly in the exercise of its constitutional jurisdiction to make a contract for the building of a court house, citizens, residents and taxpayers have a remedy to correct such irregularity by becoming parties to the proceedings and appealing to the circuit court." See, also, Murphy v. Garland County, 99 Ark. 173, 137 S.W. 813, where we said: "The appeal from the county court was prosecuted by a citizen and taxpayer, who had the right to so prosecute it from a judgment allowing a claim against the county." In an opinion written by Mr. Justice HART in 1911, Van Hook v. McNeil Monument Co., 101 Ark. 246, 249, 142 S.W. 154, there is this language: "The order appealed from was an allowance against the county, and the court in its statement of facts merely announced that Armstrong appealed from the order of allowance, and did not state whether or not he was a party before or after the order of allowance was made, but recognized his right to appeal. Armstrong v. Truitt, 53 Ark. 287, 13 S.W. 934. The effect of that decision is to hold that § 50, art. 7, of our Constitution, gives a resident, citizen or taxpayer the right to appeal from an order of allowance against the county, whether he intervenes before or after the allowance was made."

These decisions are conclusive of the proposition that a citizen and taxpayer may intervene as to a questioned allowance by the county court, either before, concurrent with, or after judgment, if the appeal is not barred by time.

It is alleged in the intervention, which serves as a complaint, that $ 424.77 was paid to appellee Stubblefield or for his benefit as car expenses in 1933, together with $ 2,000 in salary, such payments having been made from the general road fund--that is, the so-called three-mill tax. It is further alleged that for subsequent periods amounts aggregating $ 1,439.66 were paid for similar expenses, showing a total of $ 1,864.43 paid from the three-mill tax fund, if allegations of appellants are correct. By their demurrer, appellees admit the truth of these allegations. In addition, it is alleged that over a period of 39 months, subsequent to December 31, 1933, appellee as county judge rendered judgments on his salary claims for amounts aggregating $ 7,800, and that these payments were made from the county turn-back fund.

As to $ 3,864.43, the demurrer admits that the fund from which payment was made arose from the three-mill road tax, levied under authority of Amendment No. 3 to the Constitution. The amendment, after providing how the fund should be created and directing that it should be known as "the county road tax," contains the following: "It shall be used in the respective counties for the purpose of making and repairing public roads and bridges of the respective counties, and for no other purpose." The construction placed upon this mandate, in the case of Burr...