Needham v. Garner
| Decision Date | 16 October 1961 |
| Docket Number | No. 5-2473,5-2473 |
| Citation | 233 Ark. 1006,350 S.W.2d 194 |
| Parties | R. S. NEEDHAM, Appellant, v. Lloyd GARNER, County Judge, Appellee. |
| Court | Arkansas Supreme Court |
Caldwell T. Bennett, Batesville, Claude A. Caldwell, Melbourne, for appellant.
W. G. Wiley, Melbourne, for appellee.
This action was brought in chancery court by R. S. Needham (appellant), a resident and taxpayer of Izard County, against the County Judge of said county to enjoin him from using county road machinery in constructing dams, reservoirs, and terraces for private individuals.
In his answer the County Judge (appellee) admits he 'has been contracting with private persons' for the use of county equipment for excavating and dirt moving projects, but says that all remuneration coming from such work has been deposited in the treasury of the county, that such operations have produced a profit (over and above all operation costs, including depreciation of machinery) to the taxpayers of the county, and that the taxpayers have not been injured or damaged.
The County Judge, further answering, in substance stated: The U. S. Soil Conservation Service has instituted a program in the county of constructing ponds and terraces; that such work constitutes an important internal county improvement; that the work he did was to help further the program; that the work complained of was only incidental to the main purpose of building roads, and; that the machinery was never so used when it was needed for the said main purpose.
Decree. The trial court, after hearing the testimony of witnesses and arguments of counsel, made, in substance, the following findings and conclusions: The court has jurisdiction of the parties and the subject matter; there is no evidence of bad faith on the part of the County Judge; he has engaged in said work for the best interest of the county; a constitutional question is involved; the County Judge has no right to engage in private business primarily, but; the work in question had been handled incidentally in a way to benefit Izard County.
Thereupon the trial court dismissed appellant's petition.
Assuming that all the findings of fact of the trial court are correct, still we must disagree with the conclusion it reached. All the evidence shows that appellee, as an individual, entered into numerous contracts with private citizens of his county to construct ponds and terraces. Appellee's testimony is to the same effect.
'
It is our conclusion, based upon a study of numerous decisions of this court, that appellee, as county judge, has no power or authority to make the contracts in question, or to use county road machinery to construct ponds or terraces on private property for private use. But, before noting some of our former decisions and certain constitutional, and statutory provisions bearing on the issue presented, we desire to eliminate three questions which are not before us.
One, there is no contention here by appellee that he was acting in the capacity of the County Court. The record shows that the parties stipulated 'there have been no orders of the County Court made, entered or placed of record confirming or affirming any of the dirt moving project contracts'. Two, because of the above stipulation, we need not and do not affirm or deny the powers of the county court to enter into contracts such as here questioned. Three, there is no contention that the County Court ratified the contracts made by the County Judge.
Appellee relies on Art. 7, § 28 of our Constitution, which gives the county courts exclusive jurisdiction in all matters related to (among other things) internal improvements and local concern of the respective counties. Again we need not here decide whether improving private property could be classified as 'internal improvements and local concern' of the county as a whole, because the jurisdiction of such matters is given to the county court and not to the county judge. The same answer can be given to appellee's reliance on Ark.Stats. § 22-601, because there the 'powers and jurisdictions' to control and manage real and personal property of the county (even for the use of the county) is granted by the legislature to the county court of each county and not to the county judge. There are numerous decisions of this court which interpret the above sections to mean just what they say. See: Rebsamen, Brown & Company...
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