Calloway v. Harley

Smith, J., (after stating tbe facts). Appellee insists in bis brief, in tbe case involving tbe attorney’s fees, that tbe county court bad no authority to order warrants reissued payable out of tbe county general fund, and that the act of 1909, under which the proceedings for the establishment of the drainage district were had, makes no provision for the allowance of an attorney’s fee, and that if such provision was made it would be unconstitutional. And in the ease of the engineer the contention is made that the work done, as recited in the petition was not a preliminary survey within the meaning of the statute, and that the county court had no authority to reissue warrants payable out of the county general fund; and that if such provision was made, it would be unconstitutional. In both cases it is asserted that appellants should have apealed, if they felt aggrieved, from the action of the county court in ordering their warrant paid out of the funds of the drainage district, and in refusing to make them payable out of the county general revenue, and that, having waited more than seventeen months before instituting these proceedings to mandamus the county judge, they have lost their right of appeal and can not use this proceeding as a substitute for that right. We think this last position is well taken, and it will therefore be unnecessary to discuss the other grounds of demurrer. The action of the county in ordering the warrants paid out of the funds of the drainage district was a final order of that court, from which an appeal could have been taken at any time within six months, but not thereafter. Kirby’s .Digest, § 1487. Having a complete remedy by appeal they should have pursued it. In the case of Rolfe v. Spybuck Drainage District No. 1, 101 Ark. 29, it was said: “It is well settled that the remedy of mandamus will only be granted in unusual cases, where other remedies fail, and where there is a clear legal right thereto. Mandamus will not lie to control or review the exercise of the discretion of judicial officers, but such remedy can only be invoked to compel such officers to exercise such discretion and act. Collins v. Hawkins, 77 Ark. 101; Branch v. Winfield, 80 Ark. 61; McBride v. Hon, 82 Ark. 483; Maxey v. Coffin, 94 Ark. 214; Garland Power & Development Co. v. State Board, 94 Ark. 422. As a general rule, the party applying for a writ of mandamus must show a specific legal right to its issuance, and also the absence of any other legal remedy. For it is a well settled principle that mandamus'will not be allowed to take the place of, or usurp the functions of, an appeal. Automatic Weighing Co. v. Carter, 95 Ark. 118.” The demurrers were properly sustained and the judgment in each case will be affirmed.