Rolfe v. Spybuck Drainage District No. 1

• Decision Date: 13 November 1911
• Citation: 140 S.W. 988,101 Ark. 29
• Parties: ROLFE v. SPYBUCK DRAINAGE DISTRICT NO. 1
• Court: Arkansas Supreme Court

140 S.W. 988

101 Ark. 29

ROLFE v. SPYBUCK DRAINAGE DISTRICT NO. 1

Supreme Court of Arkansas

November 13, 1911

Appeal from St. Francis Circuit Court; J. S. Thomas, Special Judge reversed.

Judgment reversed and cause dismissed.

Carmichael Brooks & Powers, for appellant.

The county court is vested with exclusive original jurisdiction to "audit, settle and direct the payment of all demands against the county." Art. 28, section 7, Const. 1874; Kirby's Digest, § 1375. The use of the word "audit," both in the Constitution and the statute plainly implies judicial discretion, and in its nature requires the exercise of judgment. 1 Words & Phrases, 641. Since such discretion and judgment is necessary in the auditing of an account, the writ of mandamus will not lie. 44 Ark. 230; 65 Ark. 164; 34 Ark. 394.

Norton & Hughes and S. H. Mann, for appellee.

It was clearly the duty of the county court to pay such portion of the benefits to the public roads as was received by them. Kirby's Digest, § 1427. When the viewers appointed pursuant to section 1420, Id., reported the amount of benefits to all lots, lands and public roads, the county court approved the report and fixed the charge against the property of the individuals and also against the public roads. The charge against the county thereby became fixed, and was merged into a judgment of the county court. His judgment was conclusive, and not subject to review by the same court after the expiration of the term. 33 Ark. 452; 52 Ark. 316; 53 Ark. 110. Nothing remained but to pay the assessment, and the issuance of a warrant was not such an act as called for the exercise of judicial discretion, but was merely ministerial.

OPINION

FRAUENTHAL, J.

This was a proceeding by mandamus, instituted by the Spybuck Drainage District No. 1, seeking a judgment to compel E. A. Rolfe as county judge of St. Francis County to order the clerk of said county to issue a warrant for the payment of certain assessments made for the benefits accruing to the public roads of said county by the construction of a ditch in said drainage district. The complaint alleged in effect that the said drainage district was constituted and established by the county court of St. Francis County under and in pursuance of section 1414 et seq. of Kirby's Digest, for the purpose of constructing a ditch within the territory described in the drainage district. All steps appear to have been taken for the establishment of said district and making the assessment of the benefits. Viewers were duly appointed by said county court, and, in compliance with the orders of said court, they assessed all the land in said district benefited by the improvement in proportion to the benefits thereby received. They assessed the amount of the benefits received by the public roads located within said district, and apportioned the cost of the drain according to said assessed benefits. The amount of the benefits thus received by said public roads in the district was assessed at $ 844.75. The viewers made report of said assessment to the county court. After due notice, the court found that said report was fair and just as to the benefits therein assessed, and approved and confirmed same. It was further provided in the said order of the county court that said benefits should be paid in installments of one-fifth each year, and that the deferred payments should bear interest at the rate of six per cent. per annum until paid.

The improvement was made and constructed in pursuance of said orders, and all assessments had been paid except those due from the county of St. Francis for the benefits accruing to said public roads. A statement of the amount thus due from St. Francis County for said benefits to said public roads was presented to the county court of said county, but said court disallowed same, and refused to make an order directing the clerk of the county to issue a warrant therefor.

It was further alleged that an appropriation for road purposes had been made by the levying court of said county at the time said drainage district was established, and that such appropriation had been made for each succeeding year. Defendant filed a general demurrer to this complaint, which was overruled. He thereupon made answer, in which, amongst other things, he denied that an appropriation to pay for said alleged assessment or for road purposes had been made at any time by the county court of said county, or that there had at any time been any funds available according to law out of which to pay said assessment.

Upon the trial of the cause, the circuit court adjudged "that E. A. Rolfe, as judge of the county court of St. Francis County, be and he is hereby directed to make an order in the county court aforesaid directing the clerk of said court to issue a warrant in payment of the amount" of the assessment for the benefits received by the public roads in said district.

It is well settled that the remedy of mandamus will only be granted in unusual cases, where other remedies fail, and where there is a clear legal right thereto. Mandamus will not lie to control or review the exercise of the discretion of judicial officers, but such remedy can only be invoked to compel such officers to exercise such discretion and act. Collins v. Hawkins, 77 Ark. 101, 91 S.W. 26; Branch v. Winfield, 80 Ark. 61, 95 S.W. 1007; McBride v. Hon, 82 Ark. 483, 102 S.W. 389; Maxey v. Coffin, 94 Ark. 214, 126 S.W. 729; Garland Power & Development Co. v. State, 94 Ark. 422, 127 S.W. 454.

As a general rule, the party applying for a writ of mandamus must show a specific legal right to its issuance, and also the absence of any other legal remedy. For it is a well settled principle that mandamus will not be allowed to take the place of or usurp the functions of an appeal. Automatic Weighing Co. v. Carter, 95 Ark. 118, 128 S.W. 557.

The questions in this case to be determined are whether the plaintiff showed that it had a clear legal right to this remedy which it has invoked, and whether it has or had any other adequate remedy to obtain the relief sought. In order to settle these questions, it is necessary first to determine the nature of the assessment of the benefits which were made by the viewers of this drainage district when the same was approved by the county court of St. Francis County.

It is provided by our laws that the county court of each county shall have the exclusive original jurisdiction "to audit, settle and direct the payment of all demands against the...