Wiegel v. Pulaski County

• Decision Date: 06 July 1895
• Citation: 32 S.W. 116
• Parties: WIEGEL v. PULASKI COUNTY.
• Court: Arkansas Supreme Court

Page 116

32 S.W. 116

WIEGEL v. PULASKI COUNTY.

Supreme Court of Arkansas.

July 6, 1895.

Appeal from circuit court, Pulaski county; Robert J. Lea, Judge.

Bill by E. N. Wiegel against Pulaski county for allowance of a claim. There was a disallowance of the claim by the county court, and from a judgment of the circuit court sustaining a demurrer to the complaint. Plaintiff appeals. Reversed.

S. R. Cockrill, for appellant. J. M. Rose, for appellee.

HUGHES, J.

This is an appeal from the judgment of the circuit court sustaining a demurrer to a demand presented to the county court, verified acording to the statute, for allowance against the county of Pulaski, which had been disallowed by the county court, and from which disallowance an appeal was taken to the circuit court. No formal pleadings were filed in the case, and none were required. Only the account of appellant, in two items, — one of $2,000 and one of $6,400, for building Arch street turnpike, under contract with the county, properly verified, — was filed, and to these the demurrer was sustained. This was error. A demurrer does not lie to a claim presented to the county court for allowance. For this error the judgment is reversed, and the cause remanded for a new trial.

Several questions are raised and discussed in the brief of counsel which will arise for determination on the trial in the circuit court, and, as a desire is intimated that these be considered now, we proceed to express our views upon them.

Can the county court authorize the letting of a contract to construct a turnpike road, without an appropriation first made therefor? The statute itself answers this question in the negative, in section 1279, Sand. & H. Dig., which provides that "no county court, or agent of any county shall hereafter make any contract on behalf of the county unless an appropriation has been previously made therefor, and is wholly or in part unexpended." This is the act of March 19, 1879. Construing this act, this court held, in the case of Fones v. Erb. 54 Ark. 645, 17 S. W. 7, that the county court could not make a contract for the building of a bridge across the Arkansas river, at the city of Little Rock, without an appropriation having been first made therefor. In this case the court said: "It is the policy of the act to require the concurring judgment of the levying court and of the county judge that a bridge should be built, before a contract for building it can be made. When the levying court makes an appropriation to pay for one, that signifies its favorable judgment, and the county judge may afterwards signify his by letting the contract. While we think that a contract cannot be made before there is an appropriation for it, we do not think that when an appropriation has been made the contract will be limited to the amount of the appropriation. When the levying court appropriates any sum for the work, that signifies their judgment that the work should be done, and the county judge may then proceed to contract for it without further consulting them, the only limitation upon his power being found in other directions." We hold, upon this statute and the authority of this case, that without some appropriation made therefor by the quorum or levying court, the county judge has no power to let a contract to construct a turnpike road. Though he has jurisdiction to let such a contract, he must do so, if at all, within the limitations imposed by law upon the exercise of such jurisdiction. Otherwise there...