McLellan v. Pledger

• Decision Date: 22 October 1945
• Docket Number: 4-7714
• Citation: 189 S.W.2d 789,209 Ark. 159
• Parties: McLellan v. Pledger, County Treasurer
• Court: Arkansas Supreme Court

189 S.W.2d 789

209 Ark. 159

McLellan v. Pledger, County Treasurer

No. 4-7714

Supreme Court of Arkansas

October 22, 1945

Appeal from Jefferson Chancery Court; Frank H. Dodge, Chancellor on Exchange.

Affirmed in Part and Reversed in Part.

Fred A. Isgrig and Jno. S. Gatewood, for appellant.

Sam M. Levine, A. F. Triplett, John W. Moncrief and W B. Alexander, for appellee.

OPINION

McFaddin, J.

The appellants, as

taxpayers filed suit in the Jefferson Chancery Court against A. C. Pledger, County Treasurer of Jefferson county; L. T. Sallee, County Clerk of Jefferson county; and Jack Segars, as Court Reporter of the Fourth Chancery District. We copy the complaint in full:

"The petitioner, and plaintiff, James McLellan, is a taxpayer and states that he is a resident of Jefferson county, Arkansas, and that he sues for himself as such taxpayer and for other taxpayers in said county similarly situated and to protect the inhabitants of said county from illegal exactions.

"The defendant, A. C. Pledger, is County Treasurer of said county, and the defendant, L. T. Sallee, is County Clerk of said county and that the defendant, Jack Segars, is court reporter for the Chancery Court of the Fourth Chancery District.

"Prior to March 4, 1943, when Act 139 of the General Assembly of Arkansas was approved, and by virtue of emergency clause attached thereto, became effective, the salary of the County Treasurer of Jefferson county was $ . . . per annum; that said Act attempted to raise said salary to $ 3,600, and in addition thereto made provision for the payment to the said County Treasurer the sum of $ 1,950 to be used by him 'as his best judgment dictated.' Said Act provided that its provisions should apply only to such counties as were then shown by the last Federal census to have a population of not less than 65,000 and not more than 65,250 and the assessed valuation of real and personal property of which county according to the records in the Arkansas Corporation Commission of not less than $ 16,000,000 and not more than $ 16,200,000.

"Petitioners state that Jefferson county is the only county in the State of Arkansas with a population of not less than 65,000 and not more than 65,250 according to the last Federal census, and that it is the only county in the state with an assessed valuation of real and personal property of not less than $ 16,000,000 and not more than $ 16,200,000 and that at the time of the passage and approval of said Act by the Arkansas Legislature or General Assembly Jefferson county was the only county in the State having such population and the assessed value of whose property, real and personal, was not less than $ 16,000,000 and not more than $ 16,200,000. Petitioner therefore states that said act was local and special and in contravention and in violation of Amendment No. 14 to the Constitution of the State of Arkansas, and is therefore void.

II.

"Petitioner states that defendant, Jack Segars, as court reporter for the Chancery Court of the Fourth Chancery District, prior to approval of Act 65 of the Arkansas Legislature 1943 February 17, 1943, received a salary of $ 1,800 per annum, $ 1,200 of which salary was paid by Jefferson county and $ 600 was payable by other counties in said Chancery District. That under said Act 65 of the 1943 session of the Arkansas Legislature salary of said reporter was raised to $ 3,000 per annum, of which salary $ 2,100 is payable by the county of Jefferson. That said Act provided that it should apply only to Chancery Districts whose largest county had a population of not less than 65,000 and not more than 65,250. That the Fourth Chancery District is the only Chancery District in the State having a county to which such limitations of population apply, and that said Act 65 is special act in contravention and violation of Amendment 14 to the Constitution of the State of Arkansas and void.

"That said two acts were and are void for reasons above alleged, petitioners state that all warrants drawn by the County Clerk of Jefferson county on the Treasury of Jefferson county, since the said void acts took effect for amounts in excess of salaries previously provided for were unauthorized and that the payment of said warrants by said treasurer were unauthorized and contrary to law, and that unless restrained, the county clerk will continue to issue his warrants to the defendants, A. C. Pledger and Jack Segars, for payment of such unlawful salaries and that said Treasurer will continue to pay said unlawful salaries out of funds in his hands belonging to the taxpayers of Jefferson county, and that petitioner and other taxpayers of Jefferson county will suffer irreparable loss and injury thereby; petitioners are without adequate remedy at law.

"Wherefore, premises considered, plaintiff and petitioners pray that the defendant, L. T. Sallee, County Clerk of Jefferson county, be restrained and enjoined from issuing any warrant or other authority to the Treasurer of Jefferson county for the payment of any sum of the defendant, A. C. Pledger, and to the defendant, Jack Segars, in excess of salaries due each of them before the passage of said Acts 139 and 65;

"That the defendant, A. C. Pledger as Treasurer, be restrained and enjoined from paying any voucher, warrant or other authorization issued to the defendants, A. C. Pledger and Jack Segars, for salaries attempted to be created by said two Acts;

"That a temporary restraining order be issued by this court to this effect and that upon final hearing said injunction be made permanent, and for all other and proper relief."

To this complaint, the defendants filed separate demurrers, claiming:

Chancery was without jurisdiction; and

The facts alleged were insufficient to constitute a cause of action.

The Chancery Court sustained the demurrers, and the plaintiffs elected to stand on the complaint. From final judgment dismissing the complaint there is this appeal:

1. Chancery Jurisdiction. Appellees insist that the Chancery Court was without jurisdiction, as the plaintiffs had a remedy at law -- i. e., appeal from the County Court order allowing a claim or salary warrant under either of the acts. Appellees cite Bowman v. Frith, 73 Ark. 523, 84 S.W. 709; and Sadler v. Craven, 93 Ark. 11, 123 S.W. 365, to sustain their contention. But in Bowman v. Frith it was pointed out that a taxpayer could not proceed in equity to prevent a county from entering into a contract claimed to be improvident, but could proceed in equity to restrain the county from entering into a void contract. Fones Hardware Co. v. Erb, 54 Ark. 645, 17 S.W. 7, 13 L. R. A. 353, was there cited as authority for such equitable proceeding in the case of a void contract. In the case at bar it was alleged that the legislative acts were void; so the Fones case applies, rather than the Bowman case. Sadler v. Craven, supra, involved an attack on an allegedly improvident contract, and not one claimed to be void. In short, the cases cited on this point by appellees are without application.

Article XVI, § 13 of the Arkansas Constitution says: "Any citizen of any county, city or town may institute suit in behalf of himself and all others interested, to protect the inhabitants thereof against the enforcement of any illegal exactions whatever." Under this constitutional provision we held in Farrell v. Oliver, 146 Ark. 599, 266 S.W. 529, that a taxpayer could maintain a suit in equity to restrain the State Auditor from drawing warrants on the State Treasury to pay illegal appropriations. Chief Justice McCulloch there said:

"There is eminent authority for holding, even in the absence of an express provision of the Constitution, such as that referred to above, that a remedy is afforded in equity to taxpayers to prevent misapplication of public funds on the theory that the taxpayers are the equitable owners of public funds and that their liability to replenish the funds exhausted by the misapplication entitle them to relief against such misapplication. Fergus v. Russell, 270 Ill. 20, 110 N.E. 130, Ann. Cas. 1916B, 1120."

This language was quoted with approval in our recent case of Samples v. Grady, 207 Ark. 724, 182 S.W.2d 875. In Grooms v. Bartlett, 123 Ark. 255, 185 S.W. 282, Mr. Justice Hart, in sustaining the chancery jurisdiction, said: "The taxpayers of a county are the persons from whom the public revenues are obtained and are directly interested in protecting the same. They are proper persons to maintain suits against public officers to prevent or remedy misapplication of the public funds, and in such cases chancery has the power to grant affirmative as well as injunctive relief."

In Independence County, et al., v. Thompson, et al., 207 Ark. 1031, 184 S.W.2d 63, we sustained the chancery jurisdiction in a suit by a taxpayer to prevent the unlawful expenditure of public funds. That case is ruling here, and it therefore follows that the Chancery Court had jurisdiction in the case at bar.

II. Constitutional Amendment No. 14. Appellants insist that the acts here under attack are local acts, and therefore violative of Amendment No. 14 to our State Constitution. This Amendment No. 14 was adopted by the people at the 1926 general election, and reads:

"The General Assembly shall not pass any local or special act. This amendment shall not prohibit the repeal of local or special acts."

Many cases involving this amendment have been before this court. We mention only a few: Webb v. Adams, 180 Ark. 713, 23 S.W.2d 617; Smalley v Bushmiaer, 181 Ark. 874 and 1147, 31 S.W.2d 292 and 203; Cannon v. May, 183 Ark. 107, 35 S.W.2d 70; Simpson v. Matthews, 184 Ark. 213, 40 S.W.2d 991; State ex rel. Burrow v. Jolly, 207 Ark. 515, 181 S.W.2d 479. In considering the acts here...