Wiegel v. Pulaski County

• Decision Date: 06 July 1895
• Citation: Wiegel v. Pulaski County, 32 S.W. 116, 61 Ark. 74 (Ark. 1895)
• Parties: WIEGEL v. PULASKI COUNTY
• Court: Arkansas Supreme Court

32 S.W. 116

61 Ark. 74

WIEGEL v. PULASKI COUNTY

Supreme Court of Arkansas

July 6, 1895

Appeal from Pulaski Circuit Court ROBERT J. LEA, Judge.

S. R Cockrill for appellant.

1. No formal pleadings are required in the county court. No question could be raised by demurrer. 30 Ark. 560; 31 Ark 384; Ib. 657; 53 id. 378.

2. It was error to dismiss the action without giving plaintiff leave to amend. Sand. & H. Dig. sec. 5719; 30 Ark. 771; 44 id. 314; 27 id. 218.

3. The question of a valid contract was res judicata, and was final after the lapse of time. 24 Ark. 50; 22 id. 308; 55 id. 275; Holmes v. Or. Ry. Co., 9 F. Rep.; 28 S.W. 1086; 39 Ark. 485; 47 id. 85. Even where a board or officer is authorized to determine whether work is completed in accordance with a contract, the determination of the board or officer is conclusive. 94 U.S. 98. Where that duty is devolved upon a judicial tribunal, every question involved in the determination is forever concluded by the judgment. 55 Ark 275; 28 S.W. 1086; Elliott, Roads & Streets, 219; 39 Ark 470.

4. No reason is shown against the validity of the contract. It is the exclusive function of the county court to enter into contracts for all county expenses, including the building of roads. Art. 7, sec. 28, const.; Sand. & H. Dig. sec. 1173; 57 F. Rep. (8 Ct. Ct. App.) 1030; 2 Dill. 253; Mansf. Dig. sec. 5953. The road overseer is merely an arm or agent of the court. 9 Ark. 320; 36 id. 466; 49 id. 490-1.

5. The affirming of the contract by allowance of claims and acceptance of the work under it by the court by orders of record were judicial acts. They adjudged that the preliminaries leading to it had been complied with. 55 Ark. 275; Ib. 148; 39 id. 485. It is only where there is fraud, or a jurisdictional defect in the county court, that a county can refuse to pay, where its constituted authorities have made a contract, and it has enjoyed the proceeds. 50 Ark. 16; 28 S.W. 1086; 57 F. 1030. It is presumed that the county officers acted in accordance with law. Elliott, Roads & Streets, 443; 50 Ark. 266; 147 U.S. 91.

J. M. Rose, for appellee.

1. The county court had no jurisdiction to make the contract under sec. 5953, Mansf. Digest, because: (1) No road tax had been levied to raise a fund to pay for this work. (2.) The overseer did not let the contract as directed by the statute. (3.) This was a contract to build a turnpike, and not to open or repair a road. These are jurisdictional requirements, and unless they existed the court was acting without jurisdiction, and its judgments were absolutely void. A void judgment cannot be set up as res judicata. 2 Black on Judg. 513. The mere fact that the county court had jurisdiction over roads does not give it authority to act outside of the laws governing the subject. 4 Ark. 483, 489.

2. The judgments of the county court making the contract and accepting the road were both illegal and void, and cannot be res judicata. Freeman Judg. 363-4; 53 Ark. 476; 25 id. 261; 33 id. 740; 13 A. 559; 38 id. 157.

HUGHES, J., Riddick, J.

OPINION

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 according 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 this 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, Sandels & Hill's Digest, 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 19th, 1879.

Construing this act, this court held, in the case of Fones Hardware Co. 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 has been an appropriation for it, we do not think that when an appropriation has been made, the contract will be limited to the amount appropriated. 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 would be no restraint upon the extent of his power to contract, based upon the fact simply that he is invested with jurisdiction to make the contract. Such unlimited exercise of his jurisdiction to make such contracts might involve the county in hopeless bankruptcy, and the limitation is but a wholesome safeguard against the abuse of the power to make contracts binding the county.

While the county court is invested with jurisdiction of roads and highways, to have them "laid out, opened and repaired," by sec. 28, art. 7, of the constitution, and by sec. 1173 of Sandels & Hill's Digest, conferring upon the county court...