Leathem & Co. v. Jackson County

• Decision Date: 24 January 1916
• Docket Number: 126
• Parties: LEATHEM & Co. v. JACKSON COUNTY
• Court: Arkansas Supreme Court

182 S.W. 570

122 Ark. 114

LEATHEM & Co. v. JACKSON COUNTY

No. 126

Supreme Court of Arkansas

January 24, 1916

Appeal from Jackson Circuit Court; Dene H. Coleman, Judge; reversed.

Judgment reversed and cause remanded.

Jno. W. & Jos. M. Stayton, for appellants.

1. The county court had authority to make the contract. Art. 7 § 28, Const.; Kirby's Digest, § 1375; Acts 1909, p. 902 amending section 1499, Kirby's Dig.; Kirby's Dig., §§ 7162-7167-7174, 1470 to 1483; 31 Ark. 571. The county court is the forum where the liability of all officers is settled and the direction of payment of all demands against the county is finally adjudicated. 14 Ark. 170; 22 Id. 236; 24 Id. 551; 44 Id. 225; 47 Id. 80; 52 Id. 362.

2. The duties of commissioners of accounts is defined by section 652 et seq., Kirby's Digest; and it is the duty of the county judge to pass upon the correctness of their findings and audit. Acts 1883 as amended Kirby's Dig., § 640. The county court may cure all informalities in procedure by ratification. 46 P. 6; 114 Cal. 207. The appropriation for county court purposes was made by the quorum court and the allowance herein falls within this class. An appropriation was made; the court is not prohibited from allowing claims in excess of an appropriation. Const. Art. 16, § 12; Kirby's Dig., § 1502; 93 Ark. 14; 34 Id 356; 36 Id. 646; 54 Id. 657; 34 Id. 310; 112 S.W. 979; 144 Id. 1198. Certain incidental powers germane to authorities and duties expressly delegated may always be exercised. 7 A. & E. Enc. Law (2 ed.), 987-9 and cases cited; 138 S.W. 79-81; 161 Id. 203; 175 Ill.App. 290.

3. A county board may contract for investigation of the books etc., though there had been former investigations. 60 N.E. 948; 101 Ind. 403; 103 N.E. 100; 114 Cal. 419; 46 P. 292. Under Art. 7, § 28, Const. and section 1375 Kirby's Dig. the court had authority to make or hire an audit of the records, settlements, etc., of county officers, and an appropriation having been made the county is liable although the appropriation was exhausted. Kirby's Dig., § 640 and authorities supra.

Otis W. Scarborough and Campbell & Suits, for appellee.

1. The county judge had no authority to make the contract in vacation. 71 Ark. 226; 75 Id. 420; 86 Id. 596; 89 Id. 86; 103 Id. 571. He was not a court nor the county court. 2 Ark. 229; 11 Cyc. 652, 656.

2. The county court had no jurisdiction to make the contract. Const. Art. 7, § 11; 34 Ark. 188; 68 Ark. 555; 116 Ark. 65.

3. No appropriation was previously made for such an expense. Const. Art. 16, § 12; Kirby's Dig., § 1502; 53 Ark. 287; 61 Id. 74; 93 Id. 336; 83 Id. 275. Nor had the court any authority to make such an appropriation. 114 Ark. 278; Acts 1911, p. 21-22. The law provides for "Commissioners of Accounts" to do the work contracted for. Kirby's Dig., Ch. 22, § 625. Also the law provides for the grand jury to audit the books of the county. Kirby's Dig., § 2200. The law having cast the duty on the commissioners and grand jury the court had no authority to employ Leathem. 119 Ark. 567.

4. The county court had no authority to delegate its authority to audit. 17 N. W, 938; 52 Mich. 340; 25 N.E. 283; 125 Ind. 258; 73 N.W. 456; 53 Neb. 113; 98 N.W. 619; 123 Iowa 559; 83 N.E. 790; 181 F. 49; 104 C. C. A. 63.

OPINION

HART, J.

The county judge of Jackson County employed appellants as expert accountants to examine the books and accounts of certain officers of said county at an agreed price. Subsequently the county court entered of record an order ratifying the employment of appellants and stating the reasons therefor. Appellants performed services under the contract in a satisfactory manner and presented to the county court a demand for $ 500 to be applied on their contract. A tax payer of the county filed a remonstrance. The county court made an order allowing the claim of appellants and an appeal was taken to the circuit court. The circuit court held that there was no authority in law for the county court to make the contract with appellants; that the contract as made was void; and that the order ratifying it was also void. The allowance made to appellants was set aside and the order of the county court ratifying the contract was also set aside. From the judgment rendered appellants have duly prosecuted an appeal to this court.

It will be noted that the county judge first made the contract with appellants. The county court subsequently entered of record an order ratifying the contract and setting forth the reasons which caused the court to make the contract. The county may, like an individual, ratify an unauthorized contract made in its behalf if it is one the county could have made in the first instance. Such ratification will be equivalent to original authority. Second Dill. Mun. Corp. (5 ed.), section 797; Steiner v. Polk County, (Ore.) 40 Ore. 124, 66 P. 707; Cunningham v. Saling, 57 Ore. 517, 37 L.R.A. (N. S.) 1051, 112 P. 437.

The county court set forth at length in the order entered of record its reasons for making the contract with appellants. The county judge also testified at the trial of the case and gave at length his reasons therefor. It is not claimed or proved that the county court acted arbitrarily or capriciously in making the contract with appellants; nor was it claimed or proved that the contract was the result of fraud on the part of the county judge or collusion between him and appellants. The sole ground on which the contract and allowance was attacked was that the county judge was without authority to make the same. For this reason it will not be necessary to set out the reasons given by the county judge for making the contract.

A board of county commissioners or supervisors ordinarily exercises the corporate power of the county. Such boards are in a sense the representative and guardian of the county, having the management and control of its property and financial interests and having original and exclusive jurisdiction over all matters pertaining to the county affairs. 11 Cyc. 388-9.

By the Constitution of 1874 the county courts were made successors and continuations of the former boards of supervisors of the county and were given exclusive original jurisdiction in all matters necessary to the internal improvement and local concerns of their respective counties. Dodson et al. v. Mayor and Town Council, Fort Smith, 33 Ark. 508; Worthen v. Roots, 34 Ark. 356.

Article 7, section 28, of our Constitution reads as follows:

"The county courts shall have exclusive original jurisdiction in all matters relating to county taxes, roads, bridges, * * * the disbursement of money for county purposes and in every other case that may be necessary to the internal improvement and local concerns of the respective counties * * *."

Section 1375 of Kirby's Digest, is as follows:

"The county court of each county shall have the following powers and jurisdictions: Exclusive original jurisdiction in all matters relating to county taxes * * * to audit, settle and direct the payment of all demands against the county * * * to disburse money for county purposes, and in all other cases that may be necessary to the internal improvement and local concerns of the respective counties."

Section 7162 of Kirby's Digest provides that all collectors, sheriffs, clerks, constables and other persons chargeable with moneys belonging to any county shall render their accounts and settle with the county court at each regular session thereof.

Section 7167 of Kirby's Digest provides that if any of the officers thus chargeable shall neglect to render their accounts or settle as aforesaid, the county court shall adjust the accounts for such delinquent, according to the best information that can be obtained and ascertain the balance due the county.

Section 7171 of Kirby's Digest provides that upon good cause being shown for setting aside such settlements the county court may re-examine, settle and adjust the same.

Section 7174 of Kirby's Digest provides that whenever any error shall be discovered in the settlement of any county officer made with the county court, it shall be the duty of the county court at any time within two years from the date of such settlement to reconsider and adjust the same.

Sections 1162 and 1163 of Kirby's Digest provide for settlement by the county treasurer with the county court.

Thus it will be seen that, under our Constitution and laws, the county court had jurisdiction and it was its duty to audit the accounts presented by its officers named in the statute for settlement and if found correct to approve them, and if not, to cause them to be corrected.

Under the sections of the Constitution and statutes to which we have just referred the state of officers' accounts belong properly to the jurisdiction of the county court and their correctness was a proper subject of inquiry. Counsel for appellee concede that the county court represents the county and that if it conceived it to be necessary to make a detailed investigation of the official affairs of the county and to overhaul and restate the accounts of its various officers, it has the power to do so; but they insist that the employment of an expert accountant by the county court to make such investigation is a delegation of authority and that there is no law authorizing the county court to delegate its power in this respect to another.

Counsel for appellants have cited decisions from several states to the effect that where the county court is the general fiscal agent of the county and is possessed of a supervisory power over the collection and preservation of its funds it has implied power to employ an expert accountant to audit the official accounts and public records of county officers. In Duncan v. Lawrence County, ...