Thomas v. Williford

Don M. Schnipper, Special Justice. This is a taxpayers action brought by the Appellee on behalf of Crittenden County, Arkansas, to require Appellant, Marion Thomas, to account for and pay over certain sums of money alleged to have come into his hands while he held the office of Sheriff and Collector for said county. Appellee alleged that Appellant Thomas had wrongly and fraudulently misappropriated and converted these funds to his own use during the terms of his office, namely January 1, 1965 thru June 29, 1970. Appellants Maryland Casualty Company and Fidelity & Deposit Company of Maryland were joined in this action as Sureties on Appellant Thomas’ statutory bonds. This action was tried to the Chancellor by Assignment over a considerable period of time and the transcript of the proceedings consisted of approximately 2,500 pages. A detail outline of all allegations and specific transactions would be impractical and not necessary to this decision. At the' conclusion of the trial before the Chancellor by Assignment the Court prepared and filed its “Findings of Fact and Conclusions of Law”, the net result of which was to require the Appellants to account for and pay over to Crittenden County approximately $35,000.00 plus interest and an additional $10,500.00 in attorneys’ fees awarded attorneys for Appellee. From this award Appellant Thomas and Appellant Surety Companies have taken this appeal. A number of the points for reversal relied upon by all of the Appellants revolve around the receipt by Appellant Thomas of the sum of $8,800.00 for the years 1965 through 1969 by and from Southland Racing Corporation.1 The method of the making and receiving of these payments, according to the undisputed testimony, involved a very suspicious method including the submission of fictitious invoices, issuance of checks paying the invoices to a party other than Appellant Thomas, cashing of the checks by a uniform and law enforcement equipment supplier and the paying of the funds to Appellant Thomas in cash. The Trial Court found these funds to have been received by Appellant Thomas in a “surreptitious manner”, to have deprived the citizens of Crittenden County, Arkansas of the benefit thereof contrary to his office of public trust, and that the payments were in violation of the provisions of Article 19, Section 23 of the Arkansas Constitution and the Initiated Act No. 1 of Crittenden County, Arkansas. Having so found, the Trial Court then gave judgment against Appellants for this sum and awarded interest, penalties and attorneys’ fees on this sum. Appellant Thomas had alleged error by the Trial Court in requiring an accounting for these funds (hereinafter referred to as the Southland funds) as such were not “public funds” for which Appellant Thomas was charged. Appellant Surety Companies further urged this Court that the required accounting of the Southland funds was error as said funds were “gifts” to Appellant Thomas, for which neither he nor his Sureties should be required to account. Article 19, Section 23 of the Arkansas Constitution reads as follows: “Section 23. MAXIMUM OF OFFICERS’ SALARIES OR FEES. - No officer of this State, nor any county, city or town, shall receive, directly or indirectly, for salary, fees and perquisites more than FIVE THOUSAND DOLLARS net profits per annum in par funds and any and all sums in excess of this amount shall be paid into the State, county, city or town Treasury as shall hereafter be directed by appropriate legislation.” Initiated Act No. 1 of Crittenden County authorized compensation of the Sheriff and Collector at $5,000.00 per annum, “and in addition thereto the actual and necessary expense of travel incident to the duties of this office, and shall receive no other fee, commissions, perquisites, or other compensation, either directly or indirectly, for services rendered as such Sheriff and Collector.” The evidence strongly indicates that these funds were not paid to Appellant Thomas for any services rendered or to be rendered by him or his office and were not in any way “breakage” money or other designated funds to which Crittenden County, Arkansas and its citizens would have been entitled to demand or receive. No person connected with Southland Racing Corporation testified and the exact purpose of such payments was never established. The only real evidence adduced at the trial to explain the payment and receipt of such funds and the interest the county might have to such was the testimony of Appellant Thomas that he “considered it to be additional remuneration to me in addition to my salary”. Appellee forcefully argues that Appellant Thomas should be charged with these funds since, regardless of the purpose of such payment, they were received “by virtue of his office”. See White v. Williams, 187 Ark. 113, 59 S.W. 2d 23 (1933) and State v. Harmon, 190 Ark. 621, 80 S.W. 2d 619 (1935). Further, since such funds were received “by virtue of his office” they must be considered a “Perquisite” within the definition of Article 19, Section 23 of the Arkansas Constitution and Initiated Act No. 1 of Crittenden County. In so holding we find the Trial Court committed error. All the cases cited by Appellee (White v. Williams, Supra., State v. Harmon, Supra., and Brewer v. Hawkins, 248 Ark. 1325, 455 S.W. 2d 864 (1970) ) involve monies which came into the hands of respective county officials from sources with which the respective counties were charged or were funds to which the respective counties were entitled. We do not find the gratuitous payments in the instant case to be analogous to fees for the feeding of prisoners, fees received for taking care of federal prisoners and cash bonds. We reaffirm the holding of each of the hereinabove cited cases. It is our finding that the Southland funds in the instant case, however, were not funds to which the county was entitled, had any interest in or could demand or file suit for collection. They were not paid for any public purpose nor to the detriment of any public obligation. They were not “Public funds” for which we believe Appellant Thomas could be charged and the receipt by him of such funds was not in violation of Article 19, Section 23 of the Arkansas Constitution or Initiated Act No. 1 of Crittenden County, Arkansas. This Court has taken special notice of the manner in which the Southland funds were paid to and received by Appellant Thomas. While holding these funds not to be “public funds”, we in no way intend to approve of the method, legality or morality of such manner as might be the subject of a criminal prosecution. This, however, is a civil action for an accounting. Contrary to the argument of Appellant Surety Companies, we do not hold that in a taxpayers suit for accounting it must be shown that some amount of wrongdoing in connection with the receipt of funds such as this existed. We do find, however, that there must be some interest of the county and its citizens to the funds received before a public official may be held responsible in a civil accounting action. We do not feel the proof of Appellee in the instant case was sufficient. In reversing the Trial Court on the issue of the Southland funds we also, of necessity, must reverse on that Court’s finding the Appellant Surety Companies liable for the payment of the Southland funds and in the awarding Appellee penalty and attorneys fees under Arkansas Statutes Ann., Section 66-3238. It should be noted that by this finding the amount for which the Appellant Surety Companies would be liable has been reduced below the demanded amounts as required for the awarding of such penalties and attorneys fees. The next contention of Appellant on this appeal is that the Trial Court erred in applying the Statute of Limitations as to Appellant Thomas. Appellant Thomas argues that either Arkansas Statutes Ann., Section 37-203 or Section 37-204, both being two-year statutes, is applicable to the instant situation and not the four-year Statute of Limitation provided by Arkansas Statutes Ann., Section 37-207. Appellant further argued that there was no allegation or proof of any fraud or concealment on the part of Appellant Thomas that would toll any of the Statutes of Limitation. On this point this Court disagrees with Appellant as to all transactions except the payment and receipt of a $150.00 per month expense allowance. To the contrary the pleadings are replete with allegations of fraud, concealment and misappropriation on the part of Appellant Thomas and the proof by Appellee more than met this burden. Accordingly, we find that the allegation and proof of fraud and concealment in the instant case was sufficient to toll any Statute of Limitation applicable under the circumstances and affirm the Trial Court in so holding. Appellant Thomas next contends the Chancellor by Assignment erred in requiring him to account for certain funds which were the result of some 15 specific transactions and for which Appellant contended he had accounted and was entitled to credit. These transactions range from checks on Appellant’s department accounts to individuals which were endorsed by the individuals and applied toward Appellant’s personal obligations, to checks payable to cash, to checks in payment of allegedly fictitious law enforcement equipment supplier invoices, to a $150.00 per month expense allowance paid by the county to Appellant. This court has reviewed each of these transactions thoroughly and cannot say the Trial Court’s findings on all points are against the preponderance of the evidence. Accordingly, we hereby affirm the chancellor’s findings on all of the specific transactions. While affirming the Trial Court judgment on the above unspecified transactions, we feel one such item raised by Appellant and presented to this Court on several occasions in recent years deserves discussion. According to the testimony of Appellant and other county officials, Appellant Thomas was paid $150.00 per month during the years 1965 through June 29, 1970 as an “expense” check, this payment being over and above his statutory salary and payment by the county of all travel expenses. No expense voucher or other proof of such expense was ever submitted to the county to substantiate such payment. The Trial Court found “The $10,050.00 paid to Defendant over the five-year period constituted an illegal exaction of public funds”. In requiring an accounting and repayment of Appellant the Trial Court further held that the four-year Statute of Limitation of Arkansas Statutes Ann., Section 37-207 applied unless tolled by the showing of fraud or concealment on the part of the Appellant. Finding “the receipt by Defendant of the $150.00 per month allowance was open and notorious and was disclosed to the Quorum Court each year”, the Trial Court further held that the four-year Statute of Limitation began to run each year from the filing of Appellant’s account and therefore only required Appellant to account for such expense payments for the years 1968, 1969 and 1970 in the amount of $4,650.00. This Court has been faced with this proposition and situation a number of times. On each of these occasions we have upheld the validity of monthly or annual expense allowances for public officials provided such payments are reimbursement for actual, reasonable and necsssary expenses incurred in performing duties directly connected with, and incidental to, their official duties and proof of such expenses by way of vouchers or itemized statements is produced. The payment of the maximum authorized monthly or annual amounts without such proof by each official has been held to be an illegal exaction of public monies and a violation of the constitutional provision relating to the particular offit lal. See Berry v. Gordon, 237 Ark. 547, 376 S.W. 2d 279 (1964); Laman v. Smith, 252 Ark. 290, 478 S.W. 2d 741 (1972); Tedford et al v. Mears & Scott, 258 Ark. 450 (1975). We hereby reaffirm our holdings from our previous reviews. In the instant case the evidence is clear Appellant Thomas was receiving the $150.00 per month expense funds without the required proof of such expenses. This constituted an “illegal exaction” and the Trial Court correctly required Appellant Thomas to account for and repay all sums received and not barred by the four-year Statute of Limitation. Furthermore, the record fails to disclose any evidence of fraud or concealment on the part of Appellant Thomas in accepting the monthly expense allowances. We therefore find no evidence on which the Statute of Limitation could be said to have been tolled. The finding of the Trial Court on this contention of Appellant is, therefore, affirmed. The Trial Court further charged Appellant a 5% per month penalty on 29 of the 43 specific items or transactions presented at the trial, specifically excluding several items the Court found Appellant to have accounted for, the $150.00 per month expense allowances for years excluded by the four-year Statute of Limitations and the repayment of the Southland funds. The Trial Court’s requirement for the payment of such penalty was under authority of Arkansas Statutes Ann., Section 84-1416 which provides as follows: Every collector of the county revenue, having made settlement according to law, of the county revenue received and collected by him, shall pay the amount found due from him into the county treasury, and the treasurer shall give duplicate receipts therefore; one of which shall be filed by the collector in the office of the clerk of the county court. Every collector or sheriff who shall fail to make payment of the amount due from him on settlement, in the time and manner prescribed in the preceeding section, shall forfeit and pay to the county, the sum of 5 per centum (5%) per month on the sum wrongfully withheld, to be computed from the time the payment ought to have been made, until actual payment, which may be recovered, by suit on his official bond. Appellant contends that the only funds on which he could be charged such a penalty would be taxes, fines or any monies collected for any purpose by law and belonging to the county. Appellant cites this Court to Arkansas Statutes Ann., Section 84-1401 to support his argument. Under the facts in this case we find the charge of the 5% penalty by the Trial Court to have been proper and that the specific items for which Appellant was charged are within the scope of the statute. The judgment of the Trial Court is reversed in accordance with the findings herein and the cause remanded for Judgment consistent with this opinion. Fooleman, J. and Holt, J., not participating. Jones, J., concurs. Roy, J. and Special Associate Justice J. L. Hendren, dissent. Footnotes [1] The undisputed evidence indicated Appellant Thomas received the sum of $1,700.10 during 1965, $1,700.00 for each of the years 1966, 1967 and 1968, and the sum of $2,000.00 during 1969.