Snowden v. Thompson

• Decision Date: 10 February 1913
• Citation: 153 S.W. 823,106 Ark. 517
• Parties: SNOWDEN v. THOMPSON
• Court: Arkansas Supreme Court

153 S.W. 823

106 Ark. 517

SNOWDEN v. THOMPSON

Supreme Court of Arkansas

February 10, 1913

Appeal from Greene Circuit Court; Frank Smith, Judge; reversed.

Judgment reversed and cause remanded.

R. P Taylor and M. P. Huddleston, for appellants.

Notwithstanding section 9 of the act directs the payment of the funds in question to be made by the collectors to the treasurers of their respective counties, it is necessarily implied from other provisions of the act that these funds are not to be retained by the county treasurers, but should be paid to the treasurer of the district. Act 318, Acts 1911, §§ 3, 10, 23.

R. E L. Johnson, for appellee.

1. Plaintiffs have not the legal capacity to sue, hence, the suit not being brought by the proper party plaintiff, the demurrer was well taken. Act, § 2.

2. The petition does not state facts sufficient to constitute a cause of action. It is not alleged that a warrant, signed by the chairman of the board was presented for payment, nor that there is in the treasury funds sufficient to pay all outstanding warrants of a lower number. Act, § 10.

The word "treasurer" as used in §§ 9 and 10 of the act directly refer to, and mean, "county treasurer." Compare same with sections 10 and 11 of general Act No. 279, Act 1909, pp. 839-840.

3. The county treasurer being legally in custody of the taxes and revenues of the district at the time suit was brought mandamus did not lie to compel him to deliver same to the treasurer of the board of directors. Coleman v. Drainage District, 106 Ark. 22.

MCCULLOCH, C. J. SMITH, J., not participating.

OPINION

MCCULLOCH, C. J.

This appeal involves the construction of a special statute enacted by the General Assembly of 1911 creating a drainage district in the counties of Greene and Lawrence styled the "Greene and Lawrence County Drainage District No. 1." The point of controversy is whether the respective county treasurers of those counties shall handle and disburse the funds of the drainage district or whether the funds shall, under the terms of the act, be paid over to the treasurer of the district for safekeeping and disbursement. This is an action instituted in the circuit court by the directors of the district to compel the county treasurer of Greene county to pay to the treasurer of the district the funds collected upon assessments against real property. The statute in question contains thirty-two sections, which relate to the creation of the district, a description of its boundaries, the organization of the directors and election of officers, and provision for levying and collecting assessments, the enforcement of payment of delinquent assessments, issuance of bonds, and making the improvements prescribed by the terms of the statute.

The statute seems to be largely a copy of the general statute on the subject of organization of drainage districts and procedure thereunder enacted during the session of 1909, and the inaccuracies which bring about this controversy concerning the interpretation of the statute were probably caused by failing to properly discriminate between the terms of the general statute which could be made applicable to a special statute such as this.

The sections of the special statute necessary to a decision of the question now presented are as follows:

"SECTION 3. The first meeting of said board of directors shall be held at the courthouse in Paragould, Arkansas, on the first Monday in June, 1911, and the said board shall, at said meeting, or at such other time as may be fixed by them, organize by electing a president, a secretary and a treasurer, all of whom, except the treasurer, may be chosen from members of the board of directors, and said board may appoint from time to time all other officers, agents and advisers which they may deem necessary to the proper conduct of the business of said corporation * * *

"SECTION 9. The amount of the taxes herein provided for shall be annually extended upon the tax books of Greene and Lawrence counties, and collected by the collectors of Greene and Lawrence counties along with the other taxes, * * * and the same shall by the collectors be paid over to the treasurers of Greene and Lawrence counties at the same time that they pay over the county fund * * *

"SECTION 10. The treasurer shall pay out no money save upon the order of the board and upon a warrant signed by the chairman thereof. He shall be allowed a commission not exceeding one per centum upon all sums lawfully paid out to be fixed by the board and he shall give special bond in a sum to be fixed by it. Every warrant shall state upon its face, to whom, the amount and the purpose for which it is issued. All warrants shall be dated and shall be numbered consecutively in a record to be kept by the board of the number and amount of each, and no warrant shall be paid unless there is in the treasury funds enough to pay all outstanding warrants bearing a lower number. No warrant shall be increased, by reason of any depreciation in the market value thereof, nor shall any contract or warrant be made payable or paid in anything but currency. If the directors deem best, they may require the treasurer to deposit the funds of the district in a solvent bank, which will pay interest thereon at not less than three nor exceeding four per cent, and shall give a bond, conditioned that said funds shall be safely kept and paid out in accordance with law. Said order shall relieve the treasurer and his bondsmen from liability for loss of such funds through the insolvency of said bank and its bondsmen; but no such order shall be effective unless in writing, and entered on the minutes of the board before said funds are deposited with such bank."

The statute it will be observed, does not specifically provide how the funds shall be gotten out of the hands of the several county treasurers, unless section 10 be construed to mean that the word "treasurer," as used in that section is applicable to the county treasurers and constitutes them the custodians of the funds until disbursed by warrants drawn on them by the directors. The language of the last named section is not, either in letter or spirit, applicable to the two county treasurers. Taking the strict letter of the statute, it refers to one officer, "the treasurer," and was not meant to apply to distinct officers. It provides that the warrants shall be numbered consecutively and that no warrant shall be paid unless there is in the...