Patterson v. Collison

WOOD, J., .(after stating the facts). (1) The indebtedness, which appellee seeks by this proceeding to have the appellants pay, accrued under the laws passed in pursuance of amendment No. 5 to the Constitution, designated in Kirby’s Digest as “public road tax” and set forth in sections 7324 to 7352 inclusive. Authority for the purchase is found in sections 7348, 7349 and 7351. The last section provides that the cost of such implements as mentioned herein “shall be paid for out of the county treasury on warrants properly drawn and allowed by the county court out of the money in the treasury to the credit of the road district, in which said tools and implements are purchased and used.” While the implements in suit were purchased by the county judge and road overseer and not by a road commissioner, that fact did not invalidate the purchase as it was subject to the approval of the county court and was by the county court approved. The appellants contend that what is commonly designated as the “Cotton Road Law,” set forth in sections 7290 to 7323, Kirby’s Digest, was in operation at the time the implements in suit were purchased and that under the limitations of that law the purchase was unauthorized and void. But, inasmuch as we have concluded that the debt in controversy was not incurred under the provisions of that law, it follows of course, that the limitations and restrictions therein referred to, upon which appellants rely, are not applicable to the facts as we have found them, and we therefore pretermit a discussion of the issue as to whether or not the claim in suit would be valid under the Cotton Road Law. It suffices to say the restrictions upon which appellants rely for invalidating the claim under the Cotton Road Law are not contained under the laws pursuant to amendment No. 5. (2) The appellants alleged that the claims were allowed by the county court through the fraudulent representations of the appellee or his agents, but there is no proof of any fraudulent practices upon the court. Since the overseer and the county judge with the approval of the county court were authorized to make the purchase, the allowance of the claims by the county court in the ■absence of fraud practiced upon it was a judgment in favor of the appellee and impervious to the other errors and irregularities which appellants invoked to overturn same. These alleged errors and irregularities should have been taken advantage of on appeal. See Izard County v. Vincennes Bridge Co., 122 Ark. 557; Monroe County v. Brown, 118 Ark. 524. The note, however, for $727.67, at the time this action was brought, had not been presented and allowed by the county court. But it does not follow that because the appellee holds valid judgments against Road District No. 16 mandamus will lie to compel the appellants as commissioners of the district to issue warrants for the amount of the judgments and to compel the county treasurer to pay those warrants. (3) “Mandamus is not a writ of right but it is within the judicial discretion of courts to issue or withhold same, and a party to be entitled to the writ must show that he has a clear legal right to the subject matter and that he has no other adequate remedy.” State v. Board of Directors of School District of Ashdown, 122 Ark. 337. The petition alleged that the road district had to its credit, in the hands of the county treasurer, approximately the sum of $2,000. This allegation is specifically denied in the response. We fail to discover in the abstract of appellants or the appellee any proof whatever of this allegation. The burden was upon the appellee to make the proof. A county treasurer will not be subjected to an order compelling him to pay out money for Road District 'No. 16 when there is no proof that he has in his hands any money belonging to such district. An order made under such circumstances is an abuse of the court’s discretion. Under this view of the case it becomes wholly unnecessary to determine whether or not special act No. 33 of 1915, providing for the office of road commissioner of White County, is constitutional. That act has not been directly challenged here and we refrain from deciding that question. The judgment is, therefore, reversed and the cause is remanded.