Page v. McKinley

• Decision Date: 30 May 1938
• Docket Number: 4-5151
• Citation: 118 S.W.2d 235,196 Ark. 331
• Parties: PAGE v. MCKINLEY
• Court: Arkansas Supreme Court

118 S.W.2d 235

196 Ark. 331

PAGE v. MCKINLEY

4-5151

Supreme Court of Arkansas

May 30, 1938

Appeal from Pulaski Chancery Court; Frank H. Dodge, Chancellor reversed.

Judgment reversed and dismissed.

Jack Holt, Attorney General, and Leffel Gentry, Assistant, for appellants.

G. B Oliver, Jr., Ed I. McKinley, Jr., and John R. Thompson, for appellees.

OPINION

MCHANEY, J.

Appellees Ed I. McKinley, Jr., and G. B. Oliver, Jr., brought this action against Earl Page, as Treasurer of the State of Arkansas, the State Auditor, the Secretary of the Arkansas Corporation Commission, and a great number of county assessors and clerks of this state, alleging that on or about the 15th day of January, 1937, they entered into an agreement with B. A. Fletcher and E. L. Mizell who were duly authorized to contract on behalf of said assessors and clerks, for the purpose of securing the passage of an appropriation bill to pay said assessors and clerks certain back pay, which it was claimed the state owed them. Said contract will hereinafter be set out more in detail. It was further alleged that it was the intention of all parties that any amount recovered for said assessors and clerks in excess of 70 per cent. of the amounts mentioned in their contract should be and was by said contract assigned to them. The complaint sets out the amount recovered for each assessor and clerk and the amount claimed by appellees as due them, which is 30 per cent. of the amount recovered. It is alleged that 60 per cent. of the amount recovered was paid to the assessors and clerks by proper warrants on or about December 13, 1937, and that on or about March 2, 1938, the State Auditor issued his warrants, which were approved by the Secretary of the Corporation Commission, payable to the assessors and clerks for the remaining 40 per cent. of the amounts due them, which warrants were delivered to the assessors and clerks in error on the part of said secretary and said auditor, because of the above mentioned assignments, which were in the hands of the State Auditor when he issued the warrants above mentioned. The complaint then sets out the amount due each assessor and clerk and the amount due appellees from each of them. The complaint then alleges the services rendered under the contract above mentioned including the searching of sources of income to the state to find a source from which revenue might be obtained by legislative enactment to pay said amounts, and that they finally discovered a source of revenue for said purpose; that they began the search of authorities and drew up a bill to be presented to the legislature, got it introduced, appeared before numerous committee meetings of the legislature, explained the source of revenue and the effect of the payment of the amount due said assessors and clerks upon the revenue of the state, and that as a result of their efforts and labors, a proper bill for the payment of the back salaries was prepared and became a law and the warrants above set forth were issued. It is further alleged that said assessors and clerks are insolvent, and that they have indicated that they are going to breach their contract, and that if the warrants above mentioned, which were issued to the assessors and clerks in payment of the money which was assigned by them to appellees, are paid by the State Treasurer, they will be without a remedy to collect the money due them, and that this action avoids a multiplicity of lawsuits by joining all proper parties in one suit. The prayer was that the warrants issued on March 2, 1938, for the 40 per cent. as above stated, be canceled and held for naught and that the State Treasurer be enjoined from paying said warrants pending the final hearing of said complaint and upon final hearing, that it be made permanent; that said assessors and clerks or their assigns be required to deposit said warrants with the registry of this court to be returned to the Auditor of the State, and that the Secretary of the Corporation Commission and the Auditor of the State be required to re-issue said warrants by issuing to appellees the amount set out above as being 30 per cent. of the amounts recovered by the assessors and clerks, and the balance be issued to them. The contract above mentioned is shown by exhibits "A" and "B," which are as follows:

"Exhibit A

"Whereas, we, the undersigned, Burrell A. Fletcher and E. L. Mizell, have been duly named a committee to represent county assessors in this state desiring to push a claim for back salary due them from the state; and

"Whereas, said assessors have duly contracted with us and empowered us to take steps as may be necessary in the effort to collect said claims, and have authorized us to incur such expenses as may be necessary, provided such expenses do not exceed thirty per cent. (30%) of the amount recovered, it being understood that, in any event, each assessor and clerk is to receive seventy per cent. (70%) of his proper claim.

"Now, therefore, in consideration of the authority vested in us, we hereby employ and contract with the law firm of Ed I. McKinley, Jr., and G. B. Oliver, Jr., of Little Rock, Arkansas, to represent us in the prosecution of said claims.

"It is further agreed that each contract received by us is to be assigned to and delivered to the attorneys herein mentioned and that, by such assignment, a lien for the fee to be paid is thereby created in favor of said attorneys.

"And, in consideration of their service, we agree that they shall be paid as compensation therefor the sum of thirty (30)% of the amount recovered.

"In testimony whereof, we have hereunto set our hands and seals this day of 1937."

"Exhibit B

"Whereas, the general assembly of the state of Arkansas for 1933 appropriated the sum which was sufficient to pay only one-half of the state's portion of the salaries and emoluments of the tax assessors of the respective counties of the state, and,

"Whereas, the said tax assessors and clerks of the respective counties should recover the balance due them, and such recovery can be accomplished only through legislative act of the general assembly of 1937, and,

"Whereas, the assistance of the respective tax assessors and clerks must be secured and, in order to secure such, it will be necessary to incur expenses; and, further the proper presentation to the legislature will require the time of a committee in Little Rock, and in addition to their expenses incident to render such service, it will be necessary to secure legal advice and assistance in preparation and presentation of necessary bill or bills,

"Now, therefore, in consideration of such, I, the undersigned tax assessor or clerk of county, do hereby authorize and constitute Burrell Fletcher, of Lonoke county, and E. L. Mizell, of Clay county, as a committee to act for me and in my behalf in presenting my claim for back salary as such tax assessor or clerk to the legislature, and I hereby expressly authorize and contract with said committee that they may incur any proper expenses incident thereto, and contract for legal services up to and including the sum of 30 per cent. of the amount so recovered, but it is expressly understood and agreed that I am to receive at least 70 per cent. net of the amount due me, which amount I certify to be the sum of $ .

"I further agree that the voucher or warrant for any amount so recovered shall be held by the Auditor of State, and by this instrument I hereby direct said Auditor of State to hold such voucher or warrant, same to be delivered only to me and the members of the Committee herein designated by them, and presented by us to the Treasurer of State for payment.

"In testimony whereof, I have hereunto set my hand this day of 1937."

The complaint was filed on March 3, 1938, and on the same day the court granted a temporary order enjoining the treasurer from paying the warrants issued to said assessors and clerks until a further order of the court. On ...