Wilmot Road Improvement District v. DeYampert

Hart, J., (after stating the facts). The judgment of the circuit court was wrong. It is true that, according to Light v. Self, 138 Ark. 221, and other decisions of this court, the records of the county court showing that no proceedings were had on the general county court record is conclusive of that fact. The order in question, however, laying out new public roads and changing the old ones in Wilmot Road Improvement District, was not made under the general provisions of the statutes in regard to laying out public roads, but was made under a provision of the special act of the Legislature creating the Wilmot Road Improvement District referred to above. As set out in our statement of facts, this special act was approved on the 30th day of January, 1920, and contains a provision authorizing the county court of Ashley County to lay out public roads in the district along the lines selected by the board of improvement commissioners in the manner provided by § 5249 of Crawford & Moses’ Digest. This special act also contains a provision to the effect that “all courts shall be deemed always open for the purposes of this act.” As we have just seen, one of the purposes of the act was for the county court to lay out new roads, or to change existing public roads within the boundaries of the road improvement district. Under this section of the act creating AYilmot Road Improvement District the county court was always open for the transaction of business relating to said road improvement district. It is true that the order in question mating the changes in the public road was signed by C. D. Oslin, Judge, but it was in effect made by him as a court. The order was made in his character as a judge, and was in its nature judicial. Hence it did not make any difference whether Oslin declared himself in words to be acting as a court or not. The statute requires the county court to be always kept open for the purpose of making orders with regard to the road improvement district, and any judicial order made by the county judge is, under the terms of the statute, an order made by the county court. The judge of the county court having been authorized and directed, under the statute, to hold court in vacation for that kind of business, the order was, under the statute, a court order.' In Courts and Their Jurisdiction, by John D. Works, p. 377, the law is stated as follows: “Although terms of court may be provided for generally, the Legislature may provide that, for the transaction of business of an urgent character, the court shall be open at all times, and, under such legislation, the court may act with reference to such business during what is, as to other business, vacation. But this is not the act of a judge in vacation, but of the court. And where a judge is authoifized to appoint a receiver, or perform other like judicial acts, it is held that his acts, orders, and proceedings, although had in vacation, are the judicial proceedings of the court whereof he is judge. This, however, is based upon the-ground that the words ‘judge’ and ‘court’ are, as used in the statute authorizing the appointment -of' a receiver in vacation, synonymous.” The United States Supreme Court has uniformly upheld the act of Congress providing that bankruptcy courts shall always be open for certain purposes in bankruptcy proceedings. United States v. Finnell, 185 U. S. 136, and United States v. Marvin, 212 U. S. 275. It would be too narrow an interpretation of the statute to hold that the business was not transacted by the court because it was signed by C. D. Oslin, Judge. The power of the Legislature to provide that a court shall always be open for the purposes named in the act has never been denied, so far as we are informed, by any court where these questions have been presented for its consideration. Hence we think the exercise of judicial power in accordance with the provisions of the special act constituted an act of the court. The county court had the power to adjourn the county court for all purposes with regard to the jurisdiction it might exercise under the Constitution and the other statutes of the State; but, the statute in question having provided that it should be always open for the purposes of the act, any judicial power exercised by the county judge for any purpose coming within the provisions of the act necessarily constituted an action by the court. It did not make any difference that the order of the court was not kept on the records for general countv court proceedings. It was sufficient if a proper record was kept in tlie county clerk’s office for the purpose. It seems that, for tlie purpose of convenience, tlie county clerk kept tlie proceedings of the county court with regard to the Wilmot Road Improvement District in a special record, and, as we have above indicated, this fact could not in any sense render the proceeding void. The essential fact was that the order was a judicial act, and was made by the county judge, who, under the provisions of the special act creating the road improvement district, was authorized to make it any time, and whose court was deemed to be always in session for that purpose. As above stated, it is well settled that by statute a court may have terms for certain purposes, and be regarded as always open for other purposes designated by the statute. It is also insisted that the appeal should be dismissed because it is not taken within The time provided by the statute. Sec. 11 of the special act creating the Wilmot Road Improvement District provides, “all suits involving the validity of the district * * * shall be deemed matters of public' interest and advanced in all courts and heard at the earliest moment, and all appeals therein will be taken and perfected within thirty days.” This provision of the special act is not applicable to this suit. This proceeding does not involve in any manner the validity of the district. The order of the county court making the changes in the public roads might be valid or invalid, yet the validity of the district would in no wise be affected. Hence the special provision just quoted does not amply. The appeal was taken within six months, and that is sufficient. It follows tliat the judgment must be reversed, and the cause will be remanded for further proceedings according to law7 and not inconsistent with this opinion.