Beasley v. Combs, Judge

Humphbeys, J. This is a petition to this court for a writ of prohibition against the Beilton circuit court ánd the judge thereof to prevent said court from entertaining an appeal from an order of the county court of Benton county made and entered on September 21, 1938, which order is as follows: “In the County Court of Benton County, Arkansas “In the Matter of the Debt of Benton County, Arkansas, due December 7, 1924. “Order Declaring the Indebtedness of Benton County, Arkansas, Outstanding at the Time of the Adoption of Amendment No. 10 to the Constitution of the State of Arkansas. “This court having made a thorough investigation of the indebtedness of this county, existing on the 7th day of December, 1924, being the day when Amendment No. 10 to the Constitution of the State of Arkansas went into effect, finds that said indebtedness of said county on that day amounted to the sum of forty thousand, forty dollars and 34/100 dollars ($40,040.24), all of Avhich is still outstanding; and the clerk of this court is directed to publish for one insertion in some newspaper issued and having a bona, fide circulation in this county, a copy of this order, to the end that any person who desires to question the correctness of the finding here made may bring suit for that purpose within thirty (30) days after such publication. “This 21 day of Sept., 1938. “Fred Berry, County Judge.” On the same date a notice of the order issued by the county court was published in the manner and for the time required in the Benton County Democrat, a weekly newspaper of general and bona fide circulation in Benton county. The notice is as follows: “Notice “In the County Court of Benton county, Arkansas “In the matter of the debt of Benton county, Arkansas, due December 7,1924. “Order declaring the indebtedness of Benton county, Arkansas, outstanding at the time of the adoption of amendment No. 10 to the Constitution of the State of Arkansas. “This court, having made a thorough investigation of the indebtedness of this county, existing on the 7th day of December, 1924, being the day when amendment No. 10 to the Constitution of the State of Arkansas went into effect, finds that said indebtedness of said county on that day amounted to the sum of forty thousand, forty dollars and twenty-four cents ($40,040.24), all of which is still outstanding; and the clerk of this court is directed to publish for one insertion in some newspaper issued and having a bona fide circulation in this county, a copy of this order, to the end that any person who desires to question the correctness of the finding here made may bring suit for that purpose within thirty (30) days after such publication. “This 21st day of September, 1938. “Fred Berry, ‘ ‘ County Judge. ’ ’ • The certificate of the publication of the notice of said order is as follows: “I, Gr. L. Lindsey, do solemnly swear that I am the publisher of the Benton County Democrat; that the same is a weekly newspaper of general and bona fide circulation in Benton county, Arkansas, and I do also solemnly swear that the annexed advertisement was inserted 1 consecutive weeks in the Benton County Democrat, Benton-ville, Arkansas, beginning on the 22 day of Sept., 1938. “ G-. L. Lindsey, ‘ ‘ Publisher. “Sworn to and subscribed before me this 21 dav of Nov., 1938. “Bess Pace, County Clerk.” On the 10th day of December, 1938, W. L. Marley, a citizen and taxpayer of Benton county, filed in the county court of Benton county an affidavit for appeal from said order which is as follows: “In the county court of Benton county, Arkansas. “In the Matter of the Debt of Benton county, Arkansas, due December 7, 1924. “Affidavit for Appeal “Comes now W. L. Marley, citizen and taxpayer of Benton county, Arkansas, and prays an appeal from this court and from its order, judgment and finding on the 21st day of September, 1938, to the circuit court of Benton county, Arkansas, and for cause states: That he as such taxpayer and citizen is aggrieved by said order, judgment 'and finding so made by said court; that said appeal is not taken for the purpose of delay, but that justice may be done him. “(Signed) W. L. Marley “Subscribed and sworn to before me this, the 10th day of December, 1938. “(Signed) Bess Pace, County Clerk.” An appeal bond in due form was filed in the county court. On the 10th day of December, 1938, the circuit clerk granted an appeal from said order to the circuit court of said county. On the 17th day of December, 1938, Fred Berry, as county judge and representative of the county, appeared specially in the circuit court of Benton county for the sole purpose of moving to quash the appeal on the ground that the only remedy open to W. L. Marley as citizen and taxpayer to question the order of the court of date September 21, 1938; finding that the outstanding indebtedness against the county on December 7,1924, was to bring a suit in the chancery court of said county within thirty days after the order and publication of the notice thereof in accordance with Enabling Act No. 210 of. the Acts of the General Assembly of 1925 to review the correctness of the finding of the county court that on December 7, 1924, the county owed or had an outstanding indebtedness against it of $40,040.24. The motion was overruled over the objection and exception of Fred Berry as the representative of said county and.the cause was set down for hearing on December 26, 1938, whereupon application was made to this court for a writ of prohibition to prevent the circuit court and the judge thereof from entertaining said appeal and proceeding with the cause. ■ ' A response to the application for the writ of prohibition was filed and the issue joined by the petition and the response thereto is whether W. L. Marley, as a citizen and taxpayer, had a right to appeal from the order of the county court to the circuit court of date September 21,1938, finding that said county was indebted in the sum of $40,040.24 of date December 7, 1924, or whether his exclusive and only remedy was., to bring a suit in the chancery court of said county within thirty days after the publication of the notice of said order in the Benton County Democrat to review the correctness of the finding of the county court that said county was indebted in said sum on December 7, 1924. No suit was filed in the chancery court to review the correctness of the finding of the county court that the county was indebted in said sum on December 7, 1924. The appeal from the county court order to the circuit court by W. L. Marley as citizen and taxpayer was taken within six months, after the order of the county court was made and. entered of record. The order of the county court finding the amount of the said indebtedness against said county was made pursuant to Enabling Act No. 210 of the Acts of the General Assembly of 1925 for Amendment No. 10 of the Constitution of 1874. In so far as applicable to the issue involved Amendment No. 11 (Now No. 10) to the Constitution is as follows : ‘ ‘ The fiscal affairs of counties . . . shall be conducted on a sound financial basis . . . Provided, however, to secure funds to pay indebtedness outstanding at the time of the adoption of this amendment, counties . . . may issue interest-bearing certificates of indebtedness or bonds with interest coupons.” Adopted Oct. 7, 1924, effective 60. days after date of adoption. The Enabling Act No. 210 of the General Assembly of 1925 of said amendment in so far as applicable to the issue involved herein, is as follows: ‘ ‘ Section 1. The county court of any county . . . may issue bonds for the purpose of funding the indebtedness of such county . . . outstanding at the time of the adoption of Amendment No. 11 to the Constitution. . . . Before the issue of any county . . . bonds under this act, the county court shall by order entered upon its records, declare the total amount of such indebtedness. . . . Such order of the county court shall be published immediately for one insertion in some newspaper published in the county, . . . and any property owner who is dissatisfied may, by suit in the chancery court of the county, brought within thirty days after the publication of such order, . . . have a review of the correctness of the finding made in such order; . . . but if no such suit is brought within thirty days, such finding shall be conclusive of the total amount of such indebtedness, and not open to further attack, and if said suit is brought the adjudication shall settle the question and appeal therefrom must be taken and perfected within thirty, days. ...” It is contended by respondent that act 210 of the Acts of the General Assembly of 1925 is unconstitutional because it contravenes Art. 7, § 33, of the Constitution of 1874 which, in part, is as follows: “Appeals from all judgments of county courts . . . may be taken to the circuit court under such restrictions and regulations as may be prescribed by law.” Also that the act is in conflict with Pope’s Digest, § 2913, which is as follows: “Appeals shall be granted as a matter of right to the circuit court from all final orders and judgments of the county court, at any time within six months after the rendition of the same. . . .” As stated above, the order made by the county judge was made pursuant to and in accordance with Enabling Act No. 210 of the Acts of 1925 for Amendment No. 11 (Now No. 10) to the Constitution of 1874. It was an order made under a statute which provided a special proceeding and remedy Avhereby an aggrieved taxpayer or property owner might question the correctness of the order by bringing the suit in the chancery court within thirty days from the publication of the notice of the finding of the county court as to the indebtedness of the county on December 7, 1924, the effective date of Amendment No. 11 to the Constitution of 1874. The order in question had no relation whatever to judgments of county courts from which appeals might be taken under Art. 7, § 33, of the Constitution of 1874 and the Enabling A.ct of said section of the Constitution providing an appeal shall be granted as a matter of right to the circuit court from all final judgments of the county court at any time within six months after the rendition of same. Enabling Act No. 210 of the Acts of the General Assembly of 1925 is a special statutory proceeding for carrying out the purpose of amendment No. 10 to the Constitution of 1874 and makes ample provision for the protection of aggrieved taxpayers, property owners or citizens. It is provided in said act that such citizens and property-owners may proceed in chancery to review the finding of the county judge relative to the amount of indebtedness existing against a county on the effective date of Amendment no. 10 to the Constitution and does not conflict with Art. 7, § 33, of the Constitution providing for appeals from all judgments of county courts which have reference and relate to judgments of a general character and not to final orders of county courts making findings and entering orders under the provisions of a special act. We do not think act No. 210 of the Acts of 1925 is unconstitutional and void. We think said Enabling Act operates in a different field entirely from Art.. 7, § 33, of the Constitution and Enabling Act thereto. The former relates to special orders made -under special proceedings and the other to general judgments rendered by county courts. We think the case of Dowell v. Slaughter, 185 Ark. 918, 50 S. W. 2d 572, is controlling in the case here as the effect of the decision was to construe said Enabling Act as being the only and exclusive • remedy available to citizens, property owners and taxpayers. It was;, also, decided in that case that the act was not unconstitutional as being arbitrary and unreasonable and inadequate to afford the property owners ample protection. The temporary writ of prohibition granted in this case is, therefore, on this application made permanent. GkieeiN Smith, C. J., Meeaeey and Baker, JJ. dissent.