Samples v. Grady

• Decision Date: 16 October 1944
• Docket Number: 4-7422
• Citation: 182 S.W.2d 875,207 Ark. 724
• Parties: Samples v. Grady
• Court: Arkansas Supreme Court

182 S.W.2d 875

207 Ark. 724

Samples v. Grady

No. 4-7422

Supreme Court of Arkansas

October 16, 1944

Appeal from Prairie Chancery Court, Northern District; Frank H Dodge, Chancellor.

Reversed.

W A. Leach, for appellant.

J J. Screeton, John D. Thweatt and Cooper Thweatt, for appellee.

OPINION

Smith, Justice.

Resident taxpayers of Prairie county filed a complaint against a former collector of taxes for that county, which alleged that certain taxes returned delinquent had been paid to the defendant, within the time allowed by law, and that other taxes with penalties and costs were collected after having been returned delinquent, which had not been accounted for, as appears from a tabulation made a part of the complaint. There first appears a table showing taxes alleged to have been collected and not accounted for, for the year 1937, which gave the name of the taxpayer, the number of the school district in which he had been assessed, and the amount of the taxes. A similar tabulation covers taxes for the years 1938 and 1939.

Two motions to make specific were filed, one of which was not passed upon by the court, which would have required copies of the receipts issued by the collector for the taxes to be made exhibits. The other motion, which was passed upon and sustained, was one to require plaintiffs to state the date upon which the respective collections had been made.

A demurrer was also filed, upon the ground that the prosecuting attorney had not been requested, and had not refused, to bring the suit, the contrary affirmatively appearing from the allegations of the complaint. The demurrer was sustained, with leave to amend, and to make the complaint specific, and when this was not done, the complaint was dismissed, and from that decree is this appeal.

We think the complaint was sufficiently specific to state a definite cause of action, and that it was error to order that it be made more specific. There were allegations covering each of the years 1937-1938-1939 separately, showing the name of the taxpayer, the school district in which he was assessed, and the amount of taxes assessed. The truth of these allegations, if true, would, of course, appear from the tax records. In addition, the plaintiffs would have the burden of showing that these taxes had been returned delinquent after having been paid, or had been collected after having been returned delinquent.

A more serious and difficult question is presented in the action of the court in sustaining the demurrer, because of the admitted fact that the prosecuting attorney had not been called upon to bring this suit, and had not refused to do so.

Opposing counsel have cited and reviewed the numerous cases which have dealt with this subject, and it must be admitted that there are inconsistencies in these cases, in some instances more apparent than real. We will not attempt to review and reconcile these cases, or to point out the distinctions between them, but are content to announce definitely and finally the proper and permissible practice in such cases.

Section 13 of art. XVI of the Constitution provides that: "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."

The first question which suggests itself is, whether the collection and failure to pay over and account for these taxes is an illegal exaction within the meaning of this provision of the Constitution. We think it is, and it is not here contended that it is not. That it is an illegal exaction appears to be settled by the opinion in the recent case of Eddy v. Schuman, 206 Ark. 849, 177 S.W.2d 918, in which case we quoted and approved the following statements from the opinion in the case of Farrell v. Oliver, 146 Ark. 599, 226 S.W. 529:

"'The Constitution (art. 16, § 13) provides that "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."

"'This court has construed that provision to mean that a misapplication by a public official of funds arising from taxation constitutes an exaction from the taxpayers and empowers any citizen to maintain a suit to prevent such misapplication of funds. Lee County v. Robertson, 66 Ark. 82, 48 S.W. 901; Grooms v. Bartlett, 123 Ark. 255, 185 S.W. 282. The provision quoted above refers, in express terms, to citizens of any county, city or town, but the exactions from which a remedy is afforded are not those limited to counties or towns, and this provision of the Constitution is broad enough to afford a remedy against state-wide exactions which are illegal. Such is the effect of our decision in Griffin v. Rhoton, 85 Ark. 89, 107 S.W. 380.

"'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, 277 Ill. 20, 115 N.E. 166.' See, also, McCarroll, Commissioner of Revenues, v. Gregory-Robinson-Speas, Inc., 198 Ark. 235, 129 S.W.2d 254, 122 A. L. R. 977."

This Eddy case, supra, which appears to be the last pronouncement of the court on the subject, was one brought by a citizen as a taxpayer, and his right to maintain his suit in that capacity does not appear to have been questioned.

One of our first cases relating to this subject, which many of the later cases cite, is that of Griffin v. Rhoton, 85 Ark. 89, 107 S.W. 380, which was a suit by a citizen against a prosecuting attorney to recover fees collected by the prosecuting attorney in excess of the fees and perquisites allowed by § 23 of art. XIX of the Constitution, limiting the salary of state and county officers to $ 5,000 "net profits per annum in par funds," and providing that "any and all sums in excess of this amount shall be paid into the state, county, city or town treasury as shall hereafter be directed by appropriate legislation." It was there held that this provision of the Constitution was not self-executing, in that the term "net profits per annum in par funds" had not been defined in subsequent legislation contemplated in the Constitution.

The opinion in the Griffin case, supra,...