State v. Baxter

• Decision Date: 12 May 1888
• Citation: 8 S.W. 188,50 Ark. 447
• Parties: STATE v. BAXTER
• Court: Arkansas Supreme Court

8 S.W. 188

50 Ark. 447

STATE v. BAXTER

Supreme Court of Arkansas

May 12, 1888

APPEAL from Garland Circuit Court, L. LEATHERMAN, Special Judge.

Cause remanded.

R. G Davies, for appellant.

1. The property was dedicated by gift to public purposes and was not subject to alienation by the county. 9 Am. Dec., 578; 15 Cant., L. J., 422; 11 Am. Dec., 471; 38 Ark. 467; 55 Ind 297; 2 Dill Mun. Corp., 567, 445, (2d Ed.); 12 Vt. 15; 23 Id., 92; 9 Conn. 61; 33 N.Y. 333; 3 Allen, 9; 95 U.S. 303; Hill Trustees, Marg., p. 463-467; Ib., 471. As to the power to lease, see Hill Trustees, 480, 153; 2 How., 127; 2 Dillon 567; 2 Sneed, Tenn., 305; 30 Penn., 437; 4 R. I., 414; 12 La.Ann. 301; 5 Ohio 237; 5 Ind. 465; 3 Peters, S. C., 99; 28 Am. Rep., 522; 11 Am. Dec., 471; 29 Am. Rep., 605; 17 Ark 483; 13 P. 890; 14 Pa. 186; 38 Mo. 315; 12 B. Mon., (Ky.) 538; 22 Iowa 351.

2. The county judge could not sit in judgment on his own account. 9 Ark. 320.

3. The lease was fraudulent and improvident on its face, and not in compliance with the laws of this state. See Perry on trusts, secs. 733, 735, 744, pp. 380-3, 387 to 395; 17 Otto, 163.

E. W. Rector, for appellees.

The grant by congress vested the title in fee in Garland county, Sup. to Rev. St. U.S. Vol. 1, p. 293, and if the leasing of it was a forfeiture, no one can take advantage of it except the United States. 2 Minor Inst., 325; 21 Wal., 44; Mansf. Dig., sec. 641; Rutherford v. Green, 2 Wheaton; 12 Howard, 31; 21 Wall. 44; 21 Ark. 444; Mansf. Dig., 1068, 1095.

The county judge had the management and control of the real and personal property of the county, and could sell or lease. Mansf. Dig., sec. 1407. The contract of lease being otherwise fair and lawful, both parties having performed their respective parts, the plea of ultra vires cannot avail. 47 Ark. 284; 96 U.S. 341; 98 Id., 621; 121 Id., 488.

OPINION

BATTLE, J.

This action was instituted in the Garland circuit court, on the chancery side thereof, by appellant, for the purpose of setting aside a lease of a certain block of ground in the city of Hot Springs by the county court of Garland county to George W. Baxter and Walter A. Moore, for ninety-nine years, for the consideration of $ 1025. Baxter and Moore, and all parties in possession of the leased premises at the time the action was brought were made defendants in the bill. The cause was tried on an issue of fact. The judgment of the court was in favor of the defendants; and plaintiff appealed.

This is the second time this action has been here on appeal. The substance of the complaint is set out in the opinion delivered on the first appeal and reported in 38 Ark. 464, 465, 466. It is alleged in the complaint that the county of Garland is ready to, and will, if permitted to do so, use and occupy the block for the purpose it was granted by congress.

Appellees answered and denied all of the material allegations of the complaint, and alleged, in effect, that the land granted to the county was unsuitable for public buildings of the county, at the time it was leased, and unsuitable for buildings of any kind until it was laid out and improved by appellees; that the money procured from said lease was used in the purchase of the grounds and the house thereon, now owned and used by Garland county as a court house; that the price paid for said lease was the best price that could be obtained, and that open and repeated efforts were made by the county judge for more without avail.

By amendment to their answer, they also allege that, since said lease was made, Garland county has bought, built and owns a court house, jail, and public buildings elsewhere in said county; that appellees had made improvements upon said land in controversy, before the suit was brought, aggregating in value $ 25,000; that said improvements were made peaceably and in good faith, with the belief that said lease was valid, and that no objection to said improvements upon the part of the officials of Garland county was made. They make their answer a cross-complaint, and ask if said lease be cancelled, that an account be taken of their improvements, and that they be paid for them in full before they are required to surrender them."

Appellant replied to the answer of appellees, denying, among other allegations, that appellees improved the land in question to the extent of $ 25,000, and alleging that the improvements put upon the land were made while suit for cancellation of the lease was pending, and that the rental value of the land for the time Garland county was kept out of possession by appellees exceeds the value of the improvements and the $ 1025 Baxter and Moore agreed to pay; and that appellees have never paid taxes on their improvements.

Section 19 of the act of congress, entitled "An Act in Relation to the Hot Springs Reservation in Arkansas," approved March 3, 1877, is as follows:

"That a suitable tract of land not exceeding five acres shall be laid off by said commissioners, and the same is hereby granted to the county of Garland, in the State of Arkansas, as a site for the public buildings of said county; provided, that the tract of land hereby granted shall not be taken from the land herein reserved for the use of the United States."

In pursuance of this section the commissioners appointed to carry into effect the provisions of the act, laid off and set apart the block in question to the county of Garland. The effect of the grant was to vest in Garland county the title to the block so laid off and set apart. Whether the title was subject to be divested by the failure of the grantee to use it as a site for public buildings, or not, is a question not now presented for decision. The United States only can take advantage of such failure, if any one can. Martin v. Skipwith, 50 Ark. 141, 6 S.W. 514.

Having the title, did the Garland county court have the power to lease the block for ninety-nine years, and if so, can and should the lease be set aside in this action for fraud?

In United States v. Arredondo, 31 U.S. 691, 6 Peters 691, 729, 8 L.Ed. 547, it is said: "It is a universal principle that where power is delegated to any public officer or tribunal over a subject matter, and its exercise is confided to his or their discretion, the acts so done are binding and valid as to the subject matter and individual rights will not be disturbed collaterally for anything done in the exercise of that discretion within the authority and power conferred. The only questions which can arise between an individual claiming a right under the acts done and the public, or any person denying its validity, are power in the officer, and fraud in the party. All other questions are settled by the decision made, or the act done, by the tribunal or officer, whether executive, legislative, judicial, or special, unless an appeal is provided for, or other revision by some appellate or supervisory tribunal is prescribed by law."

Under the laws of this state, the county court is vested with full power and authority to control and manage all the property real and personal, for the use of the county; "to purchase or receive by donation any property, real or personal, for the use of the county; and to cause to be erected all buildings and all repairs necessary for the use of the county; and to sell and cause to be conveyed any real estate or personal property belonging to the county, and appropriate the proceeds of such sale for the use of the county." In directing how this power and authority shall be exercised, the statutes of this state provide, that "the county court may, by an order to be entered on the minutes of said court, appoint a commissioner to sell and dispose of any real estate of the county, and the deed of such commissioner, under his hand, for and on behalf of such county, duly acknowledged and recorded, shall be sufficient, to all intents and purposes, to convey to the purchasers all the right, title, interest and estate whatever which the county may then have in and to the premises to be conveyed;" and that, whenever the county court shall make an order for the erection of any public building, it shall appoint some suitable person as commissioner of public buildings, who shall superintend the erection of the same; and that, if there be no suitable ground belonging to the county on which to erect the building, "the commissioner shall select a proper piece of ground at the seat of justice, and may purchase or receive by donation a lot or lots of ground for that purpose, and shall take a good and sufficient deed in fee simple for the same to the county, and shall make report of his proceedings to the court at its next term; and that the court shall examine the proceedings of the commissioner, and if it finds the title to such property so purchased to be good, and otherwise approve his proceedings, it shall state the approval of the same on the...