Russell v. Tate

• Decision Date: 15 February 1890
• Citation: 13 S.W. 130
• Parties: RUSSELL <I>et al.</I> <I>v.</I> TATE <I>et al.</I>
• Court: Arkansas Supreme Court

13 S.W. 130

RUSSELL et al.

v. TATE et al.

Supreme Court of Arkansas.

February 15, 1890.

Appeal from circuit court, Pope county; ROBERT TOOMER, Judge.

This was a bill for injunction brought by R. H. Tate, J. B. Evarts, J. W. Tucker, and J. A. Jamison, residents and tax-payers of the town of Russellville, Ark.; J. W. Russell, mayor, L. M. Smith, J. L. Shinn, W. J. White, J. M. Luker, and R. J. Wilson, councilmen, and W. M. Peeler, treasurer, of said town. It appeared that, in consideration that the people would vote to remove the county-seat of Pope county from Dover to Russellville, the defendants, except J. W. Russell, had executed an approved bond to the commissioners, for the use of the county, in the sum of $50,000, to build a court-house at Russellville, and donate the house and ground to the county. In course of construction of said court-house, the same being built by private enterprise, the defendants, in their capacity as board of council of said town, on the 3d day of February, 1888, passed the following resolution: "Alderman Shinn moved, which was seconded by Alderman Smith, that the council appropriate $1,000 to assist in the completion of the court-house, and that the mayor draw his warrant for the amount in favor of the chairman of the court-house building committee. The vote was ordered, which resulted as follows: Yeas, J. M. Luker, J. L. Shinn, L. M. Smith, W. J. White, and R. J. Wilson. The mayor announced the adoption of the resolution." The meeting was at night, the usual time of meeting. The treasurer had been invited to be present at said meeting, and report the amount of money of the town in his hands; and, reporting $675, the appropriation was immediately drawn against by the mayor in two warrants, at the instance of the treasurer, — one for $675, which was paid about 10 o'clock that night; the other for $325, which was not paid for the want of funds. The money so received was applied to the payment of expenses for building said court-house, and the other warrant was outstanding in the hands of said Shinn. On the 17th day of February the plaintiffs filed their bill in chancery against defendants, alleging the foregoing facts; also alleging that they are citizens and tax-payers of said town. The prayer of their bill was: (1) For a temporary restraining order, restraining the collection and payment of the $325 outstanding warrant. (2) That upon the final hearing the collection and payment of said warrant be perpetually enjoined and surrendered up and canceled. (3) That the resolution of said town council appropriating $1,000 to the construction of said court-house be quashed and held for naught, and that defendants be perpetually enjoined from taking any further action under the same, or from diverting the revenues of said town for the objects and purposes of said appropriation. (4) For restitution into the town treasury of the $675 already diverted and appropriated as aforesaid. (5) For general relief. After the defendants had made the aforesaid appropriations and taken the money, they proposed to submit their action to a mass meeting of the citizens of the town, but plaintiffs declined that method of arbitration. At the town election held April 3d, the defendants all became candidates for re-election, and undertook to force an arbitration of the matter, independent of the wishes of plaintiffs, by having printed on their tickets, "For appropriation." The plaintiffs also ignored that method of arbitration, by refusing to vote on the question. When suit was about to be brought by plaintiffs against defendants, the attorneys of defendants and J. M. Luker notified the attorney of plaintiffs that the town council would call in and destroy the $325 warrant outstanding in the hands of J. L. Shinn. The first regular meeting of the council after suit was brought was March 1st. The council at that time took no steps to recall said warrant, but at a special meeting called at the instance of the city attorney, on the 27th day of March, five days before court convened, at which said cause was to be tried, the defendants, in their official capacity as town council, assembled and called in and destroyed the $325 warrant, but never rescinded the resolution of February 3d, nor did they indicate the reason for destroying said warrant; nor did they prohibit the mayor from drawing another warrant in its stead against said appropriation of February 3d.

The defendants came into court and filed a motion to dismiss so much of plaintiffs' complaint as related to the $325 warrant, on the ground that all injunctive relief had been extinguished by destruction of the warrant, which they alleged plaintiffs knew would be done before bringing suit, and which was done before the granting of any restraining order. The court overruled their motion. They filed a motion to strike out from appellees' complaint all that part which related to and sought to recover back $675 already paid. The court overruled this motion also. The appellants then filed their answer, containing a demurrer, alleging: (1) That this suit was brought after appellees' attorney had been advised that the $325 warrant would be recalled and canceled, and without giving opportunity to do the same, for the fraudulent purpose of giving the court jurisdiction of other matters alleged in the complaint. (2) There was no money in the treasury to pay said warrant, and that appellees knew it, and that there was no probable ground for believing that said warrant would be paid. (3) That the calling in and destruction of the warrant was virtually a rescinding of the resolution of February 3d, especially to the extent of the $325 warrant. (4) They admitted that the $675 of the town's revenues and funds were diverted from the lawful channels, as charged in the complaint, but that it was a legislative act, and courts cannot control matters lying in legislative discretion; and for that reason said act of appropriation is not wholly ultra vires and void, and denies the liability of the defendants for the $675, notwithstanding they admit the funds were diverted from their lawful purpose. (5) They allege the revenues of the town to be about $1,600, and of that amount the four appellees pay $74.80, and that they have no interest not held in common with other citizens and tax-payers of said town, and that they have no such interest as entitles them to sue in this behalf, and that the right to recover the $675, already paid, is a separate and distinct right to the enjoining the collection of the $325 outstanding warrant, and that same ought to be stricken from complaint. (6) That the people of Russellville were pledged to build and donate court-house and grounds to the people of Pope county, and that the appropriation was made...