text:
    Edith Ann GILL, Widow of Harroll GILL, Deceased v. OZARK FOREST PRODUCTS, Inc., EMPLOYERS MUTUAL LIABILITY INS. CO. of Wisconsin
    73-256
    504 S.W. 2d 357
    Opinion delivered January 28, 1974

      Niblock, Hipp ir Odom, for appellant.

      Putman, Davis &r Bassett, for appellees.
   Frank Holt, Justice.

Appellant’s husband was accidentally killed during the scope of his employment with appellee Ozark Forest Products, Inc. Admittedly, the claim is compensable. The appellee insurance carrier began paying appellant widow $>22.38 per week and the balance of the benefits was paid to the six minor children of the deceased by a previous marriage. On appeal the widow contends that the commission, affirmed by the circuit court, should have awarded her a greater weekly sum and, further, she was entitled to a lump sum settlement which the commission denied. We first consider appellant’s contention that she was entitled to a greater weekly award of benefits.

Appellant, the deceased, seldom worked a full five day week. This was due to the nature of his employment, the timber industry, which made work available to him subject to weather conditions as well as the timber supply. The number of days per week worked by the deceased was unpredictable. There was no guarantee of a full work week. However, the decedent always worked whatever number of hours available to him.

The commission, based upon the referee’s findings, made their award based on the previous 52 week period as follows: the commission ignored 18 two or three day work weeks as well as a single one day work week; it then utilized only the balance of 33 four and five day work weeks performed by the deceased. The earnings for those 33 weeks totalled $2,109.50 which produced an average weekly wage of $63.93. The compensation rate is 35% of that figure or $22.38 per week benefits for the appellant widow. Appellee makes the argument that the commission was most generous inasmuch as it discarded all of the two and three day work weeks.

Appellant, however, asserts that the award should have been based on a full week’s pay or $80 per week which would result in $28 per week in benefits for her ($80 x .35 = $28). Appellant relies upon the first part of the statute, Ark. Stat. Ann. § 81-1312 ("Repl. 1960), which reads:

Compensation shall be computed on the average weekly wage earned by the employee under the contract of hire in force at the time of accident, and in no case shall be computed on less than a full time work week in the employment.

Appellee avers that the award was proper and invoked as controlling the latter part of the statute, which reads:

If, because of exceptional circumstances, the average weekly wage cannot be fairly and justly determined by the above formulas, the Commission may determine the average weekly wage by a method that is just and fair to all parties concerned.

Neither party appears to contend that the other alternative provision in the statute, piece basis employment — dollars per ton, per pound, per square foot, is applicable.

The statute at first blush may appear inconsistent and ambiguous. However, we are familiar with the legislative intent in this area and we hold that the first part of the statute relied upon by appellant is clear and controlling in the case at bar. It is undisputed that the decedent’s "contract of hire in force at the time” of his accident was based upon the agreed payment of $2 an hour, eight hours a day and a five day (40 hour) work week whenever work was available. He always worked when needed. In these circumstances, the statute clearly requires that a fulltime work week must be used as a basis for computing the benefits. Furthermore, it is well established in workmen’s compensation cases that when doubt exists we must remember the Workmen’s Compensation Act is remedial and should be construed liberally to effectuate its purpose.

Although this case marks our initial interpretation of the problem under the present act, we note that our decision is not a novel one. We refer to our earlier Workmen’s Compensation Act, Act 319 § 12, Acts of Ark. (1939), which provided:

Except as otherwise specifically provided, the basis for compensation under this Act shall be the average weekly wages earned by the employee at the time of the injury, such wages to be determined from the earnings of the injured employee in the employment in which he was working at the time of the injury during the period of 52 weeks immediately preceding the date of the injury divided by fifty-two; but if the injured employee lost more than seven days during such period, although not in the same week, then the earnings for the remainder of such 52 weeks shall be divided by the number of weeks remaining after the time so lost has been deducted. (Emphasis added.)

The result of that process, in the case at bar, would be to compensate the widow based on a full work week’s pay, just as the present statute does.

In interpreting the Act of 1939, the predecessor of our present act, the court in Mack Coal Co. v. Hill, 204 Ark. 407, 162 S.W. 2d 906 (1942), was concerned with benefits for coal miners who did not work in the summer months. The coal miner was a seasonal laborer just as the timber worker is here. There we said:

In case of doubt, recourse is had to the average an employee has earned during a fixed period. But where, as in the cases here, uniformity prevails, and the worker’s capacity to earn is equal to what he did earn when employment was available, it is harsh to apply a strict rule of exclusion, the effect of which is to diminish a known basic rate of pay.

The court also characterized Act 319 as remedial and to be construed liberally to effectuate its purpose and further said that since:

... § 12 is the so-called yardstick by which compensation is to be measured, we cannot agree that periods of non-operation are not to be counted as lost time, thereby reducing the divisor to the number of weeks remaining, as contrasted with fifty-two.

As previously indicated, appellant widow’s benefits should be computed on a fulltime work week. See also Lexington Mining Co. v. Richardson, 286 Ky. 418, 150 S.W. 2d 889 (1941).

However, we cannot agree with appellant’s contention that the commission erred in not granting her request for a lump sum settlement as to her portion as a claimant. § 81-1319 (K) extends to the commission the authority to grant lump sum compensation “whenever the commission determines that it is for the best interests of the parties. ...” The statute extends to the commission broad discretionary powers in granting lump sum settlements.

Appellant acknowledges that lump sum settlement is an extraordinary remedy that must be used sparingly. If there is substantial evidence to support the decision of the commission, we must affirm. St. Michael Hospital and Argonaut Ins. Co. v. Wright, 250 Ark. 539, 465 S.W. 2d 904 (1971). Appellant testified that if she were given a lump sum settlement she would pay off her debts and buy a mobile home. Her testimony indicates that would involve an expenditure of almost $7,000 of a proposed lump sum award of almost $17,000. The payment of attorney’s fees, debts, and the purchase of the mobile home would take approximately one-half of the lump sum settlement. The commission might very well determine this to be against her own best interests. Her testimony reveals no plan to utilize the money for training or rehabilitation. Of course, should she die or remarry after an award of a lump sum settlement, the resulting increased benefits to the deceased’s minor children would be affected. They are “parties” to this action with a definite interest and their mother objected to the settlement. We cannot say that the denial of appellant’s request for a lump sum payment constituted an abuse of discretion on behalf of the commission or the commission’s action is not supported by substantial evidence. Certainly, the legislature entrusted the commission with the power and authority to determine the issue.

For the error indicated, the judgment is reversed and the cause remanded for proceedings not inconsistent with this opinion.

Affirmed in part and reversed in part.

Harris, C.J., not participating.


source: Caselaw Access Project

author: Frank Holt, Justice.

license: Public Domain

text:
    Kenneth Boyce FIKE v. STATE of Arkansas
    CR 73-132
    504 S.W. 2d 363
    Opinion delivered January 28, 1974

      Potter & Potter, for appellant.

      Jim Guy Tucker, Atty. Gen., by: O. H. Hargraves, Dep. Atty. Gen:, for appellee.
   Frank Holt, Justice.

A jury found appellant guilty of assault with the intent to rape and fixed his punishment at five years in the Department of Corrections, after having found him guilty also as a habitual criminal (one previous conviction). For reversal appellant first contends that the trial court erred in refusing to permit the prosecu-trix to be interrogated on cross-examination as to a particular act of immoral conduct; i.e., giving birth to an illegitimate child.

Our cases are somewhat in conflict concerning the admissibility of specific prior acts of immorality. The state cites Pleasant v. The State, 15 Ark. 624 (1854-5), and Jackson v. State, 92 Ark. 71, 122 S.W. 101 (1909), to the effect that in rape or related cases it is impermissible to attack the credibility of the prosecutrix by eliciting on cross-examination evidence of particular acts of unchastity; however, her credibility can be impeached by evidence of her general reputation as to truth and morality. To the contrary is King v. State, 106 Ark. 160, 152 S.W. 990 (1915), an assault with intent to rape case, where we said that it is permissible on cross-examination to ask the prosecutrix if she had had sexual intercourse with someone other than the defendant. See also Lockett v. State, 136 Ark. 473, 207 S.W. 55 (1918). In King v. State, supra, Justice Frank Smith, speaking for a unanimous court, detailed the guidelines. There we held, however, that no prejudice resulted from the refusal to allow an answer to the permissible question inasmuch as it did not “*** affirmatively [appear] that the defendant believed that the witness would make an admission favorable to his defense, if she answered the question truthfully***.” Likewise, in the case at bar, no prejudice was demonstrated inasmuch as the appellant did not comply with this requirement by stating to the court that he believed in a favorable response. The appellant would be bound by the prosecutrix’s answer. Additionally, as abstracted, the appellant made no objections to the court’s ruling and appears to have acquiesced in the court’s action. We deem unnecessary a further discussion of the divergent views.

Appellant next contends for reversal that the trial court erred in refusing appellant’s proffered instruction to the jury that if they found him not guilty of assault with intent to rape they could find him guilty of assault. We must agree with appellant’s contention. We briefly summarize the evidence since the sufficiency to support the verdict of assault with intent to rape is not in issue. The prosecutrix testified that as she left a local night club, after a dispute with her divorced husband, the defendant offered her a ride home. After driving around a short time, he made improper advances toward her, which she refused. Outside town he stopped the car and persisted. She got out and started walking. He threw her into a ditch and attempted to have intercourse with her despite her resistance. When she succeeded in repelling him, he persuaded her to get back in the car, promising he would take her wherever she desired. He then drove her back to the parking lot of the night club where she jumped out of the car. She stated that the appellant never struck or raped her and that the scratches she received were caused by the gravel on the roadside when he threw her down. The appellant did not testify.

We have recently said “*** in order to find error in the refusal of the trial court to give a requested lesser offense instruction it must appear that the offense in the requested instruction was one necessarily contained within the higher offense and the evidence showed the existence of all the elements of the lesser offense.” Flaherty and Whipple v. State, 255 Ark. 187, 500 S.W. 2d 87 (1973). See Caton and Headley v. State, 252 Ark. 420, 479 S.W. 2d 537 (1972), for a thorough analysis of our cases involving lesser included offense instructions. It appears that the offense must be of the same generic class; all elements of the lesser offense must be contained in the greater offense, so that commission of the higher offense must involve commission of the lower; and the charge must contain all substantive allegations necessary to let in proof of the lesser offense.

In the case at bar, all of these elements coexist. Certainly, assault is of the same generic class as assault with intent to rape. Wills v. State, 193 Ark. 182, 98 S.W. 2d 72 (1936). The charge and commission of assault with intent to rape (Ark. Stat. Ann. § 41-607 [Repl. 1964]) inherently involve the element of assault (§ 41-601). The charge of assault with intent to rape is a sufficient allegation to permit proof alone of only an assault.

In the case at bar, it is not questioned that the prose-cutrix’s testimony is sufficient to sustain the verdict of assault with intent to rape. However, the jury has the sole prerogative to accept all or any part of a witness’ testimony whether controverted or not. Therefore, the jury had the absolute right, as trier of the facts, to evaluate the evidence and consider whether only an unlawful assault was committed upon her by appellant or even acquit him. The trial court should have given the instruction relating to the lesser included offense. Flaherty and Whipple v. State, supra, and Caton and Headley v. State, supra.

Appellant next contends that the state did not meet its burden of proof in establishing a previous conviction after the jury found him guilty of assault with intent to rape. The enhancement of the sentence is permitted by § 43-2330. The proof adduced by the state consisted of a penitentiary commitment, identified by the local circuit clerk, reflecting that appellant was previously convicted there of a felony. This evidence was supported by the testimony of the present sheriff who was circuit clerk at the time of appellant’s conviction. This witness also identified appellant as the one named in the document. Appellant asserts that this evidence is deficient inasmuch as neither the penitentiary commitment nor other evidence indicated he was represented by counsel or had waived legal assistance.

An indigent’s conviction prior to Gideon v. Wainwright, 372 U.S. 335 (1962), cannot be utilized for habitual offender purposes if the accused was not provided counsel. Burgett v. Texas, 389 U.S. 109 (1967). Appellant introduced no testimony to establish that he was not represented by counsel. The appellant could have inquired by cross-examination of the witnesses presented by the state or by tendering other proof, without personally testifying, that he was not the person referred to in the commitment. Henson v. State, 248 Ark. 992, 455 S.W. 2d 101 (1970), and Higgins v. State, 235 Ark. 153, 357 S.W. 2d 499 (1962). Additionally, thexe was no objection to the allegedly infirm previous conviction and we cannot consider it for the first time on appeal.

The judgment is reversed and the cause remanded for the error indicated.

Reversed and remanded.

Harris, C.J., not participating.


author: Carleton Harris, Chief Justice. John A. Fogleman, Justice,

text:
    Hervey MIZELL v. Garner CARTER, Mildred CARTER, Wanda HYATT, Ralph HYATT, Harry C. HALL and Mrs. Harry C. HALL
    73-204
    504 S.W. 2d 743
    Opinion delivered February 4, 1974

      Batchelor & Batchelor, for appellant.

      Carl Creekmore, for appellees.
   Carleton Harris, Chief Justice.

On December 19, 1967, appellees Garner and Mildred Carter, husband and wife, executed a deed to appellant Hervey Mizell and his wife to a tract of land purporting to convey 10.38 acres, which deed was thereafter duly recorded on January 10, 1968. On April 25, 1972, the Carters executed a deed to Wanda Hyatt, one of the appellees herein, to the northerly 3 1/2 acres of the land which had been deeded to Mizell, this deed being subsequently recorded. Thereafter, at various times, Mrs. Hyatt’s husband took a dozer upon this 3 1/2 acre tract, removing vegetation and rock, and constructed a road across a portion of the land connecting up with an earlier road that had been constructed before Mizell ever purchased the property. In the first part of July, appellant complained to Hyatt, at which time both parties apparently learned that the other (actually Hyatt’s wife) had a deed to the same 3 1/2 acres. Mizell instituted suit on July 13, 1972, against the Carters, the Hyatts, and Harry C. Hall and wife, the Hyatts having sold the property to the Halls, but no deed being recorded since the property had not been completely paid for, seeking judgment against the Carters and Hyatts for $2,500 damages, asking that the deed from the Carters to Hyatts be cancelled and set aside, and seeking an injunction against all defendants from trespassing on the property in any manner.

The Hyatts and Halls answered, pleading laches, es-toppel and unjust enrichment as a defense and the former further prayed judgment against the Carters for breach of warranty in case judgment was entered against them. By separate answer, the Carters asserted that the deed should be reformed because of mutual mistake, or a mistake by the Carters and fraud by Mizell, and stated that they were not aware that any of the property conveyed to Wanda Hyatt included land which had previously been deeded to the Mizells.

On trial, the court held that there was no question but what the parties had agreed upon a price of $100.00 per acre for the land and that appellant had paid at that rate for 10.38 acres. But the court held that the parties knew that the land which was to be purchased “was that land up to the first bluff upon which the plaintiff has his house trailer and that the lands below the bluff and fronting on the creek were the lands of the Carters to be specifically retained by them”, and that a mutual mistake had been made as to the exact description of the land. The court held that Mizell should have received 3.9 acres as the agreed conveyance from the Carters and it thereupon ordered the deed reformed to that effect and held that Mizell should be reimbursed for the additional amount he had paid for the ten plus acreage together with interest from the date of the initial payment to the Carters until the conclusion of the trial. The court also found that Mizell was entitled to no damages against any of the defendants; further, that the work done by appellee Hyatt on the stream or creek property was done upon property belonging to Hyatt and others upstream from the land in controversy and that this work did not damage any lands of Mizell or anyone else. In accordance with these views, the court ordered reformation of the deed from the Carters to the Mizells as set out in this paragraph and denied damages. From the decree so entered, appellants bring this appeal. Several points are urged for reversal, but the litigation can be disposed of without a discussion of each.

Let it first be remembered that we have clearly stated many, many, times that parol evidence of a mistake must be clear and convincing before reformation is justified. In Mitchell v. Martindill, 209 Ark. 66, 189 S.W. 2d 662, quoting an earlier case, the court said:

“The authorities all require that the parol evidence of the mistake, and of the alleged modification, must be most clear and convincing, ... or else the mistake must be admitted by the opposite party; the resulting proof must be established beyond a reasonable doubt. Courts of equity do not grant the high remedy of reformation upon a probability, nor even upon a mere preponderance of the evidence, but only upon a certainty of the error.”

In Hicks, Special Administratrix v. Rankin, 214 Ark. 77, 214 S.W. 2d 490, this court said:

“Appellant’s answer filed in the trial court, plead the statute of limitations, laches and estoppel, but we deem it unnecessary to discuss these pleas, for, on the whole, the evidence in this case is not sufficient to meet the rule early adopted and long followed by this court and well expressed in the case of Goodrum v. Merchants & Planters Bank, 102 Ark. 326, 144 S.W. 198, 202 Ann. Cas. 1914A, 511: ‘It is true that this is a suit instituted in a court of chancery, and is to be determined by principles enforceable in such court, and that equity will reform a written contract on the ground of mistake. But, to entitle a party to reform a written instrument upon the ground of mistake, it is essential that the mistake be mutual and common to both parties; in other words, it must be found from the testimony that the instrument as written does not express the contract of either of the parties thereto. It is also necessary to prove such mutual mistake by testimony which is clear and decisive before a court of equity will add to or change by reformation the solemn terms of a written instrument.” ***
“The evidence necessary to impeach the solemn recitations of the deed must be clear and convincing. As was said in Bevens v. Brown (196 Ark. 1177), 120 S. W. 2d 574, such evidence ‘must be so clear that reasonable minds will have no doubt that such an agreement was executed. It must be so convincing that serious argument cannot be urged against it by reasonable people.’ ”

We think the proof in the case before us falls far short of the quantum of proof required for reformation. The evidence shows that the deed conveyed 10.38 acres of land, being a part of two 40 acre tracts. Undisputedly, neither man, when the oral agreement to sell was made, knew just how much acreage was involved, but it is also undisputed that their agreement was that, following a survey, Mizell would pay $100.00 per acre.

The surveyor was obtained by Mizell, and although Carter was not present when the survey was made, he had every opportunity to be present, but voluntarily chose not to go. He said he saw them (Mizell and surveyor) out surveying the property that was to be sold, but didn’t go up to where the survey was taking place. The finding of 10.38 acres was not disputed and Carter and wife executed the deed and received the sum of $1,038 in payment therefor. Within two months, and over four years before Hyatt obtained the land from Carter, the Mizells recorded their deed.

Of course, under the provisions of Ark. Stat. Ann. § 16-114 (Repl. 1968), the recording of a deed is constructive notice to all persons from the time it is filed for record in the office of the recorder of the proper county, and it thus appears that the Mizells did all that was required to protect their title. The deed itself waá prepared at the instance of Mizell, but by Carter’s then attorney, and Carter testified that he might have suggested that Mizell go to that particular lawyer. Not only that, but Carter testified that he had in the past done some surveying in rough territory, and it is extremely difficult to understand how one, who had lived in the area for 12 or 13 years, and who had experience in surveying, would not be able to know the difference between 3 1/2 acres and 10 1/2 acres; in fact, Carter testified that he did know the difference.

As to the Hyatts, the testimony reflects that no attorney examined the title, no abstract was obtained covering the property, nor was any check made of records at the courthouse.

With the matters which we have herein set out, it would not appear there is much further need to discuss the evidence. Carter testified that he had walked over the property with Mizell that was to be sold at various times in the past, although Mizell testified that they walked over the area which he actually purchased.

There was also disputed testimony as to which had possession of the property during the approximately four-year period from the time of the purchase by Mizell to the time of the purchase by Hyatt. The Carters testified that they used the property for a cow and calf to graze, but Mizell testified that this was with his permission. Mizell also testified that he used the land to raise oats and graze his horse, which Carter admitted, but the latter said that this was with his permission.

Fred Millican testified that he was acquainted with the property, didn’t know the exact boundary lines, but had walked over it with Mizell many times during the last four years, the two hunting and fishing together. He said that no one objected to their being on the property and he knew that Mizell had claimed up to, and across, the creek, which was a portion of the property here in dispute.

Summarizing, Mizell received a deed to 10.38 acres of land, paid for that amount of acreage at an agreed price per acre, the purchase being made from an individual familiar with land surveys, recorded his deed about four years before the purchase by Hyatt, the latter making no effort to ascertain the status of the title. We certainly cannot agree that the evidence was clear, cogent and convincing that a mutual mistake was made, nor did the evidence establish fraud on the part of Mizell.

As far as damages are concerned, we find no preponderance of evidence that would enable us to say the chancellor was incorrect in that finding.

Reversed as to the title of the property; affirmed as to the failure to award damages. The decree is thus reversed, and the cause remanded to the chancery court for further proceedings not inconsistent with this opinion.

It is so ordered.

Fogleman, J., concurs.

John A. Fogleman, Justice,

concurring. I concur because I think that the decree and the findings on which it is based are clearly against the preponderance of the evidence.

      The record is not clear why the deed was made to Wanda Hyatt. Carter testified that he sold and conveyed to Hyatt and wife, the consideration being work done by Hyatt on Carter’s property.

       In addition to the other allegations, claim for damages was also based on a contention that a dam which had been constructed by Hyatt on Hyatt’s own property had caused a creek on the 3 1/2 acres in dispute to fill up with dirt and further, had caused an erosion of the creek bank. The contention was really that the damage occurred because Hyatt had failed to properly maintain his dam.

        Sewell v. Umsted, 169 Ark. 1102, 278 S.W. 36.

      Ron Hatfield testified on behalt of Hyatt, but his testimony dealt with damages.

      From the evidence of Mrs. Carter:
      “Q. He did pay you $100.00 an acre I believe for that land?
      A. Yes, for 10 3/4 acres.
      Q. And you want him to have this 10 3/4 acres?
      A. I certainly do.”


author: George Rose Smith, Justice.

text:
    Alvie DAVIS et al v. Clarence MAYWEATHER et al
    73-206
    504 S.W. 2d 741
    Opinion delivered February 4, 1974

      Wayne R. Foster, for appellants.

      Moses, McClellan, Arnold, Owen & McDermott, by: William L. Owen, for appellees.
   George Rose Smith, Justice.

This is a dispute between two sets of tenants in common concerning the title to the south half of a certain lot in Little Rock. The trial court, sitting without a jury, held that the appellees had acquired title to the appellants’ undivided one-half interest in the property by adverse possession. For reversal the appellants contend that there is no substantial evidence in the record to support the court’s finding. We agree with that contention.

The property was formerly owned by William L. Patterson, who died in about 1933, without descendants. At Patterson’s death an undivided one-half interest in the property passed to his widow. That interest eventually vested in the appellees. The other undivided one-half interest passed to the descendants of Patterson’s deceased sister. That interest eventually vested in the appellants.

The appellees or their predecessors in title took possession of the property at least as early as 1954 and continued to live upon it until the present eminent domain proceeding was filed by the Little Rock Housing Authority in November, 1971. The Housing Authority, in seeking to acquire the fee simple title to the property, joined all the cotenants as defendants. The appellants filed their answer on January 10, 1972, asserting title to a half interest in the property. Later on the appellees filed an answer asserting title to the whole parcel by adverse possession.

Although the appellees or their predecessors were in possession of the property from 1954 until 1971, the continuity of their possession was effectively interrupted by a partition suit which resulted in a judgment entered in the Pulaski Circuit Court on July 30, 1964. Apparently the trial court in the case at bar failed to give proper weight to that judgment. The earlier judgment found specifically that the successors in interest of William L. Patterson’s widow were the owners of a half interest in the land and that the successors in interest of Patterson’s sister were the owners of the other half interest. Upon that finding the court ordered a partition of the property and appointed three commissioners for that purpose. As far as this record shows, the partition order was never carried into effect.

It is familiar law that a judgment establishing the ownership of land is conclusive upon the parties with respect to all questions that were or should have been put in issue in the case. Lillie v. Nunnally, 211 Ark. 202, 199 S.W. 2d 751 (1947). Hence the effect of the 1964 judgment was to extinguish any claim of adverse possession that might then have been asserted and to establish that the two sets of heirs were tenants in common of their respective half interests in the property.

There is no substantial evidence in this record to support a finding that the appellees acquired title by adverse possession after the entry of the 1964 judgment. The appellees’ proof merely shows that they continued in possession of the land and paid the taxes upon it. As between tenants in common those facts do not establish hostility of possession. Smith v. Kappler, 220 Ark. 10, 245 S.W. 2d 809 (1952). “For possession by one tenant [in common] to be adverse to his co-tenants, the knowledge of such adverse claim must be brought home to the co-tenants, either directly or by such acts that notice may be presumed.” Woolfolk v. Davis, 225 Ark. 722, 285 S.W. 2d 321 (1955). There is no proof that the appellees brought home to the appellants any such notice of an adverse claim between July 30, 1964, the date of the former judgment, and January 10, 1965, the date which was seven years before the appellants asserted their claim of title in the case at bar. Quite the contrary, Edgar Mayweather, the only one of the appellees who testified in the court below, stated that the judgment of partition was not carried into effect because the appellees were trying to buy out the owners of the other half interest. That attitude was of course a recognition of the cotenants’ ownership rather than a denial of it.

The judgment is reversed, and since the title to land is involved the cause is remanded for the entry of a judgment consistent with this opinion.


author: Lyle Brown, Justice.

text:
    William M. SPARKS et al v. Thomas J. SHEPHERD et ux
    73-194
    504 S.W. 2d 716
    Opinion delivered February 4, 1974

      Evans, Farrar, Callahan ir Cook, for appellants.

      McMillan ir McMillan, for appellees.
   Lyle Brown, Justice.

Essentially this is a land title dispute between two neighbors. The Shepherds instituted a suit for damages against the Sparkses alleging trespass. Later the case developed into a contest over title and the Shepherds prevailed. Appellants advance five points for reversal.

Between the two tracts of land occupied by the parties is an old fence running north and south. To the east of the fence and on what we shall call the Shepherds side is a private road running parallel with the fence and on out to a county road, to the north. The Sparkses proceeded to locate a mobile home on their side of the fence and facing the private road. In order to obtain ingress and egress to the mobile home the Sparkses proceeded to cut the fence and clear underbrush on the Shepherds side of the fence, the object being to connect a passageway with the private road. Those actions by the Sparkses resulted in the filing by the Shepherds of cause numbered 7170 in the Clark Chancery Court. They sought to enjoin the Sparkses from trespass and prayed for damages. A separate answer on behalf of William M. Sparks, incompetent, contained a counter-claim, alleged that the two acres claimed by the Shepherds contained two void deeds in the chain of title and that in fact the record title was vested in the Sparkses.

The title of both parties was deraigned from a common source. In 1953 O. H. Haltom executed a deed to one Stanford for two acres out of his forty acre tract by metes and bounds description. The description was defective in that it did not close. In 1956 Haltom deeded four acres to the Sparkses out of the same forty. That deed described six acres by metes and bounds but excepted therefrom the two acres previously deeded to Stanford and “recorded in Book 220, page 460 of the deed records of Clark County.” Then in 1962 Stanford deeded to Shepherd and wife the two acres previously mentioned and under the same void description as was in the Haltom to Stanford deed. On the basis of the defective description in the Shepherd title, the Sparkses claimed the Shepherds took nothing by their conveyance and asked for ejectment in their counterclaim. That was on the theory that the record title was in the Sparkses. The counterclaim also sought damages.

The Shepherds’ reply conceded that two calls had been omitted from the deeds as heretofore described. They then purported to make the Haltom and Stanford heirs parties to the suit. The Shepherds additionally asked for reformation.

The Sparkses demurred to the reply and filed motion for summary judgment on the issue of liability. At a hearing on January 10, 1972, the chancellor informally stated his intention to dismiss the complaint as to the Sparkses on the theory that possession by the Shepherds had not been pleaded. Thereupon the Shepherds requested and were granted a nonsuit. That left the counterclaim as the only issue before the court.

Shortly after the dismissal without prejudice the Shepherds filed a new cause of action against the same parties, cause number 7240. An answer containing counterclaim and alternate affirmative defenses was timely filed. After the statutory period for filing a reply to the counterclaim and affirmative defenses had expired the Sparkses filed a motion for default judgment. The chancellor held that the pleading filed by the Sparkses was more in the nature of an answer than of a counterclaim and did not require a response by the Shepherds, and the motion for summary judgment was denied. Motions in both cases for summary judgment filed by and for the Sparkses were denied and die causes consolidated for trial.

The chancellor ordered the void deeds reformed. As to costs in the case the parties were ordered to pay their respective witnesses, the costs of a survey made by the county surveyor were divided and the balance of the costs was adjudged against the Sparkses.

Other pertinent facts will be related as the points for reversal are enumerated and discussed.

Point I. The court erred in granting the Shepherds’ motion for nonsuit and in dismissing the Shepherds’ complaint in 7170 without prejudice when the Sparkses had a counterclaim pending. Only two Arkansas cases on the subject come to our attention. In Pickett v. Ferguson, 45 Ark. 177 (1885), this court sustained the trial court in refusing to dismiss a complaint without prejudice after a cross-bill had been filed. The other case is Rowell v. Rowell, 184 Ark. 643, 43 S.W. 2d 243 (1931). Again, the trial court refused to dismiss a cqmplaint where a cross-complaint had been filed. This court said: “It was within the sound discretion of the chancellor at this stage of the proceedings to grant or refuse the motion, and his action will not be reviewed, unless that discretion was abused”. We find no abuse of discretion in the case at bar.

Point II. The court erred in denying the Sparkses’ motion for a default judgment in 7240. The Shepherds failed to file within the statutory period a reply to the Sparkses’ counterclaim in 7240. The Shepherds responded out of time and their attorney stated that he was not aware that the counter-claim had been filed or that he had received a copy. The trial court denied the Sparkses’ motion for default judgment. We sustain the action of the trial court.

Ark. Stat. Ann. § 29-401 (Repl. 1962) providing for entry of default judgment against one from whom affirmative relief is sought and who has failed to file a responsive pleading, specifically recognizes that a default judgment entered should be set aside for unavoidable casualty, excusable neglect or other just cause. It is only logical that if a court can set aside a default judgment for those reasons, it will not abuse its discretion if it refuses to enter a judgment for any of the same reasons. Easley v. Inglis, 233 Ark. 589, 346 S.W. 2d 206 (1961); Fitzwater v. Harris, 231 Ark. 173, 328 S.W. 2d 501 (19959).

Although we are not persuaded that there was a clear showing of unavoidable casualty we do find justification for a finding of excusable neglect or “other just cause” in the circumstances prevailing because the very issues raised by appellants were already an issue in the first case (7170) by virtue of the pleadings then extant, i.e., the counterclaim and reply thereto. This result seems to be indicated by our decisions in the cases above cited and in Barkis v. Bell, 238 Ark. 683, 384 S.W. 2d 269 (1964). In all of these cases the attorneys for the party in default had some reason to feel secure in the belief that pleading was either unnecessary or that pleading requirements had been met. The major consideration seems to have been that in each case there was every indication that the issues would be contested. That is also the case here, so we find no abuse of discretion in the court’s denial of a default judgment.

Point III. The court erred in denying the Sparkses’ motions for summary judgment in both cases. Under this point the argument is advanced that by reason of the indefinite description in the Shepherds’ chain of title, nothing was conveyed and therefore the Shepherds are not entitled to reformation. The Sparkses overlook the fact that adverse possession was pleaded in 7240; and in 7170 the Shepherds controverted the counterclaim filed by the Sparkses.

Point IV. The court erred in reforming the two void deeds in the Shepherds’ chain of title to the two acre tract. The point is based on the fact that all of the heirs in the Shepherds’ chain of title were not before the court. McClelland v. McClelland, 219 Ark. 255, 241 S.W. 2d 264 (1951). The point is rendered moot by our holding, later to be discussed, that the Shepherds are entitled to recover under adverse possession.

Point V. The court erred in the division of the costs. It was held that the costs of the survey by the county surveyor would be divided equally between the parties; that each party would pay its own witnesses; and that the other costs would be imposed on the Sparkses. This was an equitable division. The court said there was an agreement made early in the proceedings that the survey would be made and the cost divided equally.

We now come to the plea of adverse possession made by the Shepherds. The plea is specifically made in cause number 7240; proof was introduced thereon and it is argued here. Thomas Shepherd testified he obtained his deed in 1962; that in 1963 he cleared the land and has been farming it since then, all but a small parcel which is wet, but which he kept “bushhogged”; that he was in possession of the disputed acreage up to the fences on the south, west, and east sides, and to the county road on the north side; that he built a new road all the way across the two acres on the east side near the quarter section line; and that he regularly paid taxes on the property. He said Mr. and Mrs. Sparks observed him clearing the land in 1963. Mrs. Sparks said they began claiming the two acres when attorney Cook checked the deeds. That had to be about the time this litigation was instigated. She also conceded that Mr. Haltom “told us he had sold some of it to a Mr. Stanford”. In addition, the proof showed the Stanford family exercised control over the land from 1953 until 1962, using it as a means of access from their home on the south to the county road on the north. Mr. Sparks was declared incompetent on May 28, 1963.

It is argued that adverse possession cannot run against one who is non compos mentis. This general rule is stated in 2 C.J.S. Adverse Possession § 195: “In the absence of statutory provision to the contrary, the accrual of disabilities to the true owner of the land after the commencement of adverse possession will not fatally interrupt the continuity of adverse possession so begun.” Our statute on adverse possession of land makes no provision to the contrary; in fact, the reasonable interpretation of the statute coincides with the C.J.S. statement; Ark. Stat. Ann. § 37-101 (Repl. 1962). Also see Denton v. Brownlee, 24 Ark. 556 (1867); Bozeman v. Browning, 31 Ark. 364 (1876); Freer v. Less, 159 Ark. 509, 252 S.W. 354 (1923).

Affirmed.

Harris, C.J., not participating.


text:
    Paul NAHLEN et al v. Henry WOODS et al
    73-228
    504 S.W. 2d 749
    Opinion delivered February 4, 1974

      Sam Hilburn, for appellants.

      Smith, Williams, Friday, Eldredge ir Clark, by: James A. Buttry and Thomas P. Leggett, for appellee, Arkansas Bar Foundation.

      Henry Ginger, Deputy Pros. Atty., 6th Judicial Circuit and Wilson ¿r Hodge, for plain tiff-appellees.
   Lyle Brown, Justice.

The appellants in this case are five officials of the city of North Little Rock: the finance director, the purchasing agent, the clerks of the municipal courts, and the dty clerk. The appellees are the members of the Pulaski County Law Library Board and of the Arkansas Bar Foundation, the latter being an intervenor. The action arose as a result of the passage by the North Little Rock Council of an ordinance prohibiting the collection of court costs imposed by two Acts of the General Assembly, Acts 685 and 284 of 1971. Those Acts imposed a tax of $1.00 to support a county law library and $1.00 towards a law library building. The ordinance substituted a tax of $1.00 in cases processed in North Little Rock Municipal Courts to go into a North Little Rock law library book fund to be administered by a municipal law library board. The trial court issued a writ of mandamus sought by appellees which directed appellants to disregard the city ordinance and to comply with the State Acts heretofore described. The contentions on appeal are (1) that the city council properly repealed the two Acts of the General Assembly, that action being permitted by Act 266 of 1971, and (2) a mandamus was improper because it compelled the appellants to perform legal duties of a discretionary nature.

The three Arkansas Acts above mentioned are of course directly involved in this appeal and a more detailed description of them should be helpful:

1. Act 266 of 1971 which has been codified as Ark. Stat. Ann. § 19-1042 et seq. (Supp. 1971). Subject to restrictions in enumerated fields, cities of the first class are given certain legislative powers over municipal affairs. It is sometimes referred to as the “Home Rule Act”.
2. Act 284 of 1971 which has been codified as Ark. Stat. Ann. § 25-504 et seq. (Supp. 1971). It authorizes the charging of $1.00 court costs per case in all counties for a county law library. If the Act is implemented by the county bar association and by the county court order the collection becomes mandatory. This Act is sometimes referred to as the “Book Fund Act”.
3. Act 685 of 1971 which has been codified as Ark. Stat. Ann. § 25-508 (Supp. 1971). The Act authorizes the charging of $1.00 court costs in all counties having a population of at least 84,000 for a county law library building. If the Act is implemented by the county bar association and by the county court order the collection becomes mandatory. This Act is sometimes referred to as the “Building Fund Act”.

North Little Rock is of course located in Pulaski County. It is undisputed that both the Book Fund Act and the Building Fund Act have been properly implemented by the appropriate bar association and by the county court.

We first deal with appellants’ argument that North Little Rock, acting under Act 266, the Home Rule Act, properly repealed Acts 284 and 685, the Book Fund Act and the Building Fund Act. We cannot agree with appellants. In the first place, the legislature is prohibited by our constitution from delegating such authority of repeal. “No municipal corporation shall be authorized to pass any law contrary to the general laws of the State . ” Art. XII, § 4. McLaughlin v. Retherford, 207 Ark. 1094, 184 S.W. 2d 461 (1944); Morrilton v. Comes, 75 Ark. 458, 87 S.W. 1024 (1905); State v. Lindsay, 34 Ark. 372 (1879). Secondly, the Book Fund Act and the Building Fund Act were approved subsequent to the Home Rule Act. The legislature certainly did not, and could not constitutionally, surrender its inherent power to repeal or modify prior legislative acts on the subject. The effect of our constitution is to make Arkansas a legislative home rule state as compared to those few states known as constitutional home rule states because home rule is provided in their constitutions. Since we are a legislative home rule state our legislature possesses plenary power over the municipalities. See 1 Antieau, Municipal Corporation Law, § 3.08 (Supp. 1973); and Hobart v. Duvall, 297 A. 2d 667 (N.H. 1972).

Appellants next contend it was error to issue a writ of mandamus because the writ is not appropriate when it involves duties of public officials which are of a discretionary nature. We find no merit in the argument. In view of the fact that some costs might not be collected— due to the fact that the trial court might suspend the fine and costs, or permit the defendant to work out the penalty — § 25-505 (1) provides that the county or municipality would not be liable for those costs which were not collected. That provision did not vest discretionary powers in the officers who are appellants; it was simply an exemption in those situations and in favor of the county or municipality in cases wherein the costs are not collected.

In their reply brief appellants make the assertion that Acts No. 284 and 685 of 1971 are special acts within the meaning of amendment No. 14 to the Arkansas Constitution. As best we can tell from the abstract the point was raised for the first time on appeal and in the reply brief. Ordinarily we would not consider the point; however, its merit was discussed in oral argument by both sides, so rather than ignore the point and cast an aura of doubt as to how the point, if properly raised, would have affected this litigation, we have no hesitancy in saying the contention is without merit. Whittaker v. Carter, 238 Ark. 1074, 386 S.W. 2d 498 (1965).

Affirmed.

Fogleman, J., not participating.


author:
John A. Fogleman, Justice.
      Conley Byrd, Justice,

text:
    B. Frank MACKEY et al v. Steve McDONALD Jr.
    73-128
    504 S.W. 2d 726
    Opinion delivered February 4, 1974

      Lee Munson, Pros. Atty., and Henry Ginger, Dep. Pros. Atty., for appellants.

      Eubanks, Files & Hurley, for appellee.
   John A. Fogleman, Justice.

This action was instituted by appellee Steve McDonald, Jr., (a justice of the peace for Big Rock Township in Pulaski County) as a citizen, taxpayer and property owner of Pulaski County, on behalf of himself and all others similarly situated. The suit was a proceeding against B. Frank Mackey, individually and as County Judge of Pulaski County, and William L. Tedford, individually and as County Treasurer of Pulaski County. Appellee sought to have certain appropriations made by the county’s levying court, commonly called the quorum court, declared void and to have Mackey, individually and as county judge, and Tedford, individually and as county treasurer, enjoined from authorizing, issuing, paying or disbursing any county warrants or otherwise expending any public funds under the authority thereof.

The appropriations questioned by appellee were made at meetings of the levying court held on January 12, 1973, and March 5, 1973. At the January meeting, the court made an appropriation to “County Court” for a “Contingent Fund” in the amount of $63,410.61. On March 5, 1973, the court made an appropriation of $222,265 from Federal Revenue Sharing Funds designated only as “Contingent Fund.” The chancery court held that both appropriations were unlawful and unauthorized, and granted an injunction against Mackey, in his capacity as county judge or individually, from initiating, directing or authorizing any expenditure from either “Contingent Fund” and against the county treasurer from paying out any monies from these funds.

Judge B. Frank Mackey was called as a witness by appellee. His testimony reveals he has a rather good grasp of the functions of the judge of the county court with reference to county liabilities and appropriations. He said the contingent fund was for emergency purposes to cover legitimate county expenses for which there is no appropriation. He classified these as: (1) financial obligations, placed on the county by legislative enactment, for which no appropriation has been made by the quorum court or the appropriation made is inadequate; (2) obligations of the county for proper county purposes, the payment of which results in allowances in excess of appropriations made by the quorum court. As examples, Judge Mackey mentioned a legislative increase in the allowance for operating the office of the prosecuting attorney amounting to $100,000 more than the appropriation theretofore made by the quorum court, and increased obligation on the county for the payment to court reporters for transcripts to be used for appeal purposes by indigent persons convicted in the criminal courts, for which no appropriation had been made, and obligations arising after appropriations made have been exhausted. Judge Mackey made it quite clear that no contingent fund appropriation was made to the county judge, that all payments from the contingent fund were made through the regular process of county court action on claims filed and that no payments were made in any other manner. Judge. Mackey stated that he felt legally bound to allow expenses incurred pursuant to legislative enactments, both when no appropriation had been made for the purpose by the quorum court and when the quorum court’s appropriation was not sufficient to meet all obligations so established. Judge Mackey testified the claims were processed through the county comptroller who audited the claims before their submission to him for approval. As we understand Judge Mackey’s testimony, the comptroller indicates to the county court those claims which must be paid from the contingent fund. Mackey said the comptroller worked under his direction. There is nothing in the record to indicate that Mackey has ever acted individually or in any capacity except as judge of the county court in any of these matters. There is no contention that there has been any fraudulent action or lack of good faith on the part of either of the county officials who are defendants in the action. The appropriation was not made to or for the benefit of the county judge but clearly was placed as an item under the general heading “County Court.”

The situation is a little different as to the federal revenue sharing funds. Those funds were appropriated by adoption of allocations proposed by the budget committee of the quorum court. These allocations fall into three general categories, none of which mentioned the county court and one of which was simply “contingent fund.” Judge Mackey was aware that Pulaski County is required to assure the Secretary of the Treasury that these funds will be used by the county only in accordance with laws and procedures governing the county’s own revenues and that misapplied funds must be repaid along with a 10% penalty. He stated that, at the time of the trial, these funds had been placed in a separate trust account and that none of the money had been spent.

Appellants filed a general demurrer to appellee’s pleading, which was styled “Petition for Injunction,” and specifically alleged that the chancery court was without jurisdiction under Art. 16, Sec. IB, of the Constitution of Arkansas over federal revenue sharing funds.

After hearing the matter, the chancellor expressed grave concern about the jurisdiction of the chancery court to act in the matter, as well he might. In view of the disposition we make of the case, however, we need not concern ourselves too much with the serious doubt about the jurisdiction of the chancery court over this action, which basically would appear to fall within the jurisdiction of the circuit court under Art. 7, Sec. 14. The county treasurer, however, is a party to the action. It is the duty of the county treasurer to pay and disburse monies payable into the county treasury on warrants drawn by order of the county court. Ark. Stat. Ann. § 12-1310 (Repl. 1968). If he neglects or refuses to pay any warrant drawn on him by order of the county court, when he has in his hands money available for the payment thereof, the law requires him to forfeit to the holder fourfold the amount of the warrant. Ark. Stat. Ann. § 12-1311 (Repl. 1968). Furthermore, the refusal constitutes a misdemeanor in office, and subjects the treasurer to removal. Ark. Stat. Ann. § 12-1312 (Repl. 1968). Clearly, the treasurer is a ministerial officer of the county, who is not vested with discretion in such matters.

It is true that appellee had the right to appeal from .the appropriations made by the quorum court. Lee Court ty v. Robertson, 66 Ark. 82, 48 S.W. 901. It is not clear, however, that his remedy at law was plain, adequate and complete. Under similar circumstances, this court has held that the chancery court properly exercised jurisdiction in an action against the county clerk to restrain the clerk from issuing warrants based on allegedly unauthorized orders of the county court. Worthen v. Roots, 34 Ark. 356. We consider this case to be controlling authority as to the chancery court’s jurisdiction, at least insofar as the county treasurer is concerned. See also, Farrell v. Oliver, 146 Ark. 599, 226 S.W. 529. Under the authority of the cited cases, it seems that all the issues here raised may be adequately treated within the jurisdiction of the chancery court.

Appellants’ first point for reversal is based upon their contention that the court had no jurisdiction insofar as the federal revenue sharing funds are concerned. They base their argument upon the assertion that Art. 16, Sec. 13, of our Constitution applies only to county tax funds but not to federal funds and that jurisdiction of misuse of federal funds is governed by the Federal Revenue Sharing Act which does not place jurisdiction in any state or local court. We do not agree with appellants.

At the outset, we should say that the application of Art. 16, Sec. 13, has not been strictly limited to exactions of county, town or city tax funds. See, e.g., Eddy v. Schuman, 206 Ark. 849, 177 S.W. 2d 918; City of Bentonville v. Browne, 108 Ark. 306, 158 S.W. 161; McCain v. Hammock, 204 Ark. 163, 161 S.W. 2d 192; Nelson v. Berry Petroleum Co., 242 Ark. 273, 413 S.W. 2d 46; Parker v. Laws, 249 Ark. 632, 460 S.W. 2d 337; Price v. Edmonds, 231 Ark. 332, 330 S.W. 2d 82; Cunningham v. Stockton, 235 Ark. 345, 359 S.W. 2d 808; Needham v. Garner, 233 Ark. 1006, 350 S.W. 2d 194. It seems that, under this section of the constitution, equitable remedies are accorded the taxpayer to prevent misapplication of funds when the taxpayer may be required to replenish those funds if exhausted through the misapplication. Eddy v. Schuman, supra. It also seems clear that this constitutional provision is applicable in every case where taxpayers will bear the burden of replenishing funds exhausted by misapplication. McLellan v. Pledger, 209 Ark. 159, 189 S.W. 2d 789; Samples v. Grady, 207 Ark. 724, 182 S.W. 2d 875; Farrell v. Oliver, 146 Ark. 599, 226 S.W. 529. The cited cases make it quite clear that a citizen and taxpayer may maintain a suit to prevent a misapplication of funds or to protect against unlawful official acts which could logically result in illegal exaction as well as to require reparation for that which has been done. See also, Grooms v. Bartlett, 123 Ark. 255, 185 S.W. 282. We do not consider the case of Gipson v. Ingram, 215 Ark. 812, 223 S.W. 2d 595, relied upon by appellants to be applicable here. The opinion in that case clearly points out that it was shown that the cash funds involved, admittedly public funds, were not derived from taxes but from the operation of the state agencies and institutions involved. For the purposes of the opinion in that case, these cash funds were treated as those received by the state agencies and institutions from sources other than taxes, as the term “taxes” is ordinarily used. It is also significant that in Gipson, none of the funds ever reached the public treasury. Quite a different situation prevails here.

Under the State and Local Fiscal Assistance Act of 1972 funds received by units of local government may be used only for specified priority expenditures enumerated in the act. See 31 U.S.C.A. § 1222. They are:

(1) ordinary and necessary maintenance and operating expenses for—
(A) public safety (including law enforcement, fire protection, and building code enforcement),
(B) environmental protection (including sewage disposal, sanitation, and pollution abatement),
(C) public transportation (including transit systems and streets and roads),
(D) health,
(E) recreation,
(F) libraries,
(G) social services for the poor or aged, and
(H) financial administration; and
(2) ordinary and necessary capital expenditures authorized by law.

In order to qualify for funds under the act, a unit of local government must show that it will establish a trust fund in which it will deposit all payments it receives and use the fund only for the prescribed priority expenditures and pay over to the Secretary of the Treasury an amount equal to 110% of any amount expended out of such fund in violation of the limitations on expenditures, if such amount is not promptly repaid to the trust fund. 31 U.S.C.A. § 1243. The local government unit is also required, under the same section, to provide for the expenditure of the funds received only in accordance with laws and procedures applicable to the expenditures of its own revenues. Thus, it is quite clear that the county general revenues would be the source of any reimbursements for unauthorized expenditures. Clearly, the taxpayer who would bear a part of the burden of reimbursement has a right under Art. 16, Sec. 13, to prevent an improper application of these funds. If the funds are to be disbursed in accordance with laws and procedures applicable to the expenditures of county revenues, clearly the courts of the state have jurisdiction to prevent expenditures which are not in accordance with state laws and procedures, even if the federal courts or other federal agencies should also have jurisidction. Nothing in the federal act pretends to limit jurisdiction of such preventive action to either federal courts or federal administrative agencies.

Appellants also contend that the chancery court erred in applying illegal exaction principles to this case, basing their argument largely on the fact that no fraud or bad faith is involved. We agree with the chancellor’s finding that no fraud or bad faith had been shown. The illegal exaction principle, however, is not confined to such cases, even though there have been several occasions where these elements were the bases of findings that there had been illegal exactions. A good faith misapplication of funds in a manner or for a purpose not authorized by law constitutes an exaction from the taxpayers which is illegal even though not fraudulent. In Lee County v. Robertson, 66 Ark. 82, 48 S.W. 901, one of the earliest cases arising under this section, there was no issue of fraud or bad faith, but, at the suit of a taxpayer, the court held that an unauthorized appropriation by the quorum court was tantamount to an allowance and enforcement of an illegal exaction against every taxpayer in the county. It has also been held that an appropriation of funds not made in the manner required by the constitution is a proper basis for taxpayer relief against an illegal exaction. Farrell v. Oliver, 146 Ark. 599, 226 S.W. 529. The making of a contract not authorized by law which would result in the taking of money from the public treasury may also be the basis for taxpayer action under this section. Green v. Jones, 164 Ark. 118, 261 S.W. 43. See also, Price v. Edmonds, 231 Ark. 332, 330 S.W. 2d 82. The anticipated payment of salaries by a city pursuant to an ordinance which was contrary to the constitution and statutes of the state was held to be appropriate basis for taxpayer relief from an illegal exaction. Laman v. Moore, 193 Ark. 446, 100 S.W. 2d 971. We have upheld a decree for recovery of salary paid to a de facto officer in a taxpayer’s action under this provision of our constitution, because our law does not permit payment of salaries to such officers. Sitton v. Burnett, 216 Ark. 574, 226 S.W. 2d 544. In short, an illegal exaction, in the sense of Art. 16, Sec. 13, of our Constitution, is an exaction that either is not authorized by law or is contrary to law.

We do agree, however, with appellants in their contention that “the contingent fund” appropriation to the county court was not illegal. In this respect we disagree with the chancellor. We do not believe that the authorities relied upon by the chancellor in reaching his conclusions in this respect are applicable to the facts in this case. In Pressley v. Deal, 192 Ark. 217, 90 S.W. 2d 757, we simply held that an appropriation for expenses of the county judge was not authorized under Subdivision 6, Paragraph 7, of Crawford & Moses Digest 1982 [now Ark. Stat. Ann. § 17-409 (Repl. 1968)], because such expenses were not allowed by the laws of this state in view of the fact that a county-initiated salary act did not provide for the payment of any expenses of the county judge. It was further noted that no law of this state gave authority to the quorum court to appropriate money to pay expenses of the county judge for work done outside his official duties. The circuit court, from which that appeal was taken, had made a specific finding that this appropriation was for such a purpose. Even there we recognized that the quorum court had the power to make an appropriation to defray county government expenses allowed by the laws of the state in addition to those specifically mentioned under the first six items of the subdivision in question.

In Martin v. Bratton, 223 Ark. 159, 264 S.W. 2d 635, there was an attempted appropriation of $20,000 “. . . from the county general fund to allow the county judge to use it as he sees fit and deems necessary.” Clearly, this appropriation was not authorized under our statutes, and we characterized it as an attempt to entirely bypass the functions of the county court, because the appropriation was to be used by the county judge, rather than by the county court. But that is not the case here. Even though the county judge, when asked who would make the decision as to disbursements from this contingent fund, responded that he would, he immediately stated that guidelines were set out under the law, and in later testimony made it quite clear that payments out of this contingent fund were made on claims presented to the county court and that he, as county judge, did not make fully independent decisions without the processing of claims through the county court. It seems quite clear to us that the appropriation is not one to be expended by the county judge but by the county court, and that the defects in the appropriations involved in Pressley and Martin are absent here.

We agree with appellants and the chancellor that the county is required to pay obligations imposed upon it by law which have not been the subject of an appropriation. A review of our law in that respect would be helpful to an understanding of the disposition of this case. It is true that Art. 16, Sec. 12, of the Arkansas Constitution prohibits the payment of money out of the treasury until the same shall have been appropriated by law and then only in accordance with the appropriation. This section has been held applicable to the counties. Nevada County v. News Printing Company, 139 Ark. 502, 206 S.W. 899. See also, Sadler v. Craven, 93 Ark. 11, 123 S.W. 365.

The specified order for making appropriations by the quorum court is set out in § 17-409 as follows:

1. To defray the lawful expenses of the several courts of record of the county or district and the lawful expenses of criminal proceedings in magistrate’s courts, stating the expenses of each of said courts separately.
2. To defray the expenses of keeping persons accused or convicted of crime in the county jail.
3. To defray the expenses of making the assessments and tax books and collecting taxes on real and personal property.
4. To defray the lawful expense of public records of the county or district.
5. To defray the expenses of keeping paupers of the county or district.
6. To defray the expense of building and repairing public roads and bridges and repairing and taking care of public property.
7. To defray such other expenses of county government as are allowed by the laws of this State.

These purposes were first classified in the case of Worthen v. Roots, 34 Ark. 356, where we said that the first four are of an indispensable nature, essential to the support of the government, since they are for services that must be performed, else the business of the counties must stop. The last three were said not to be imposed by necessity, but to be matters of contract. The matter was gone into rather extensively in Polk County v. Mena Star Co., 175 Ark. 76, 298 S.W. 1002. There we said that quorum or levying courts should follow the provisions of this statute strictly in making appropriations, and first make ample provision for those necessary expenses imposed upon the counties by law, after which they were at liberty to make appropriations of the whole or part of the remainder of the revenue for the second class of items, that is, those that relate to matters of contract regarding the internal affairs of the county or internal improvement thereof over which the county court has discretionary power. It was said that the first class of obligations was imposed on the counties by law and that the county court is substantially without any discretion with respect thereto. In that case, we said:

The holding of elections, printing ballots, pollbooks, tally sheets, and other election supplies, the feeding of prisoners confined in the county jail, the holding of courts of record and fees of justices of the peace, the salaries and fees of county officers, including the prosecuting attorneys, the making of assessments and tax books, and collecting taxes are all necessary county expenses imposed by law, over which the county court has no control or discretion except possibly the amount to be allowed for the service rendered, as all compensation is either fixed by law, or is provided for.

As indicated in the Polk County case, the different manner of treatment of the two classes of appropriations was first demonstrated by this court in Worthen v. Roots, supra. This court there pointed out that by the third sec-don of an act of March 18, 1879, (the same act setting out the order for making appropriations, which now constitutes a part of Ark. Stat. Ann. § 17-409) the legislature prohibited the county court or any agent of any county from making any contract on behalf of the county unless an appropriation had previously been made and wholly or in part unexpended. It should be noted that this is really the effect of Ark. Stat. Ann. § 17-416. This section seems, without question, to apply to Pulaski County. The court then observed that the legislature had designedly omitted any restrictions upon allowances, as distinguished from contracts. In this respect, the court said:

The nature and reason of this distinction, and, indeed, the full scope of the operation of the constitution itself, will become apparent from a consideration of the various purposes for which the tax is to be levied. Reverting to them, it will be seen that the first four are of an indispensable nature, essential to the support of the government. They are for services that must be performed, or the business of the counties must stop. The last three are not supposed to be imposed by necessity, but are matters of contract. It is well that appropriations be made for all purposes, but of great consequence that in the matter of contracts the expenses of the counties should be limited to the amounts appropriated. This is impossible in cases of positive service required by law, and expenses incident to them; and in accordance with this view the legislature did not reimpose upon the county any disability as to allowances. Indeed, it is plain that any other view of the case would place the county court in the attiude of dealing oppressively and unjustly with those citizens who render her involuntary or indispensable services.
# * #
There is nothing in the twelfth section to restrain the court from making allowances upon exhausted funds, in the face of the marked removal of that restraint in another section.
The irresistible conclusion, upon a review of all the legislation, is, that the act of March 18, 1879, is the result of an effort (perhaps imperfectly accomplished) to return to the true policy indicated by the constitution of 1874: To require all appropriations to be made and taxes to be levied by a full court of justices, and that no money should be paid out of the treasury except on appropriation; and to restrain the county court, or its agents, from making any contracts until money may be appropriated to meet them.
# # *
We search in vain for any prohibition, in the act of 1879, against allowing claims by the county court beyond the appropriations. A large class of the claims ought to be allowed, and with regard to those depending on contracts made in excess of appropriations, if it be error to allow them, any citizen may appeal and correct the error. There is room for the operation of the whole constitution in all its aspects.

It is, of course, true that Amendment 10 to our State Constitution has prohibited the county court from making any allowance for any purpose in excess of the revenue from all sources for the fiscal year in which the allowance is made. This limitation, however, was not effective to prevent the county court from allowing claims for the essential governmental services, said to be of an indispensable nature, in excess of the appropriations made. We have not materially deviated from the principles of Wor-theri. Since the adoption of Ark. Stat. Ann. § 17-416 (Repl. 1968), which was Sec. 3 of Act 217 of 1917, this court has held that the county court may not make contracts for items 5, 6 and 7, specified in Ark. Stat. Ann. § 17-409, in excess of the appropriations made for the purposes set out, but that appropriations for the indispensable services of county government set out in the first four items do not constitute a limitation upon the power of the county court or other agents of the county to contract. State v. E. F. Leathem & Co., 170 Ark. 1004, 282 S.W. 367. It has been said that as to the first class of obligations, the county court is substantially without discretion, but that court has discretionary power as to the second class. Polk County v. Mena Star Co., supra. However, it is equally clear that whenever an obligation is legally imposed upon a county by legislative enactment within the power of the General Assembly, it must be paid without regard to the existence or exhaustion of a specific appropriation so long as the county general fund is not exhausted. Adams v. Whitaker, 210 Ark. 298, 195 S.W. 2d 634; Polk County v. Mena Star Co., supra; Crawford County v. City of Van Buren, 201 Ark. 798, 146 S.W. 2d 914; Burrow v. Batchelor, 193 Ark. 229, 98 S.W. 2d 946. This rule does not apply, however, to any obligation incurred by reason of a contract even though the making of the contract is required by statute. Jeffery v. Trevathan, 215 Ark. 311, 220 S.W. 2d 412; Nevada County v. News Printing Co., 139 Ark. 502, 206 S.W. 899. When the amount of the obligation is fixed by law, the county court is left without any discretion, and it may be compelled to make the payment by mandamus in the circuit court. Burrow v. Batchelor, supra; Crawford County v. City of Van Buren, supra. So long as the county general funds are not exhausted, the quorum court can be compelled by mandamus to make appropriations for such obligations. Jeffery v. Trevathan, supra. See also, Walsh v. Campbell, 240 Ark. 1034, 405 S.W. 2d 264. It has been said that if the law were otherwise, not only could the county court defy the legislature, but it could obstruct the necessary and ordinary affairs of the county. Green v. Shell, 239 Ark. 1161, 397 S.W. 2d 363; Jeffery v. Trevathan, supra; Burrow v. Batchelor, supra.

If an appropriation has been made "to defray other expenses of County government as are allowed by the laws of this State” pursuant to item 7 under the sixth subdivision of Ark. Stat. Ann. § 17-409, and it has not been exhausted, any obligation imposed upon the county by statute may be paid from that appropriation, even though no specific appropriation has been made to cover the particular obligation, regardless of whether the governing statute was passed before or after the appropriation was made. Nevada County v. News Printing Co., supra; Jackson County v. Pickens, 208 Ark. 15, 184 S.W. 2d 591; Jeffery v. Trevathan, supra. See also, Craig v. Grady, 166 Ark. 344, 266 S.W. 267. In addition, if the legislative mandate specifically requires payment from the county general fund, no appropriation is necessary. Green v. Shell, supra; Crawford County v. City of Van Buren, supra. And if the obligation is for necessary expenses for indispensable county government purposes (the first four items of the sixth subdivision of § 17-409), no appropriation is necessary as long as there is money in the county general fund to pay it. Burrow v. Batchelor, supra.

The nature of the appropriation for general county purposes under item 7 of the sixth subdivision of Ark. Stat. Ann. § 17-409 is discussed in Pressley v. Deal, 192 Ark. 217, 90 S.W. 2d 757, where we said:

In other words, the quorum court has the power to make an appropriation to defray such other county government expenses as are allowed by the laws of this state in addition to those specifically mentioned under the six preceding subdivisions.

We again discussed it in Adams v. Whittaker, 210 Ark. 298, 195 S.W. 2d 634, saying:

This is in the nature of a “lest we forget” provision and covers any and all other expenses of the county government fixed by the laws of the state, and though no specific reference is made to elections, these expenses have always been paid and the obligation and power to pay them has never been questioned.

Although we feel that the quorum court’s intentions as to the intended use and purposes of the fund could have been more clearly expressed, the “contingent fund” appropriation made to the county court in this case seems to substantially meet these requirements, and in this respect we disagree with the chancellor.

Much of what we have heretofore said has application to the federal revenue sharing funds. It is clear, that once these funds reach the county treasury, they must be appropriated as other funds are, in view of Art. 16, Sec. 12, of the Arkansas Constitution and the federal statutory requirement that the county will provide for the expenditure of the funds in accordance with laws and procedures applicable to its own revenues. 31 U.S.C.A. 1243 (a)(4). The only evidence relating to the intention of the quorum court in making this appropriation is the testimony of Mackey that it will be used for emergency purposes and to cover any category where the county may run out of funds on a particular appropriation. This is not sufficiently definite for us to say that the appropriation was proper, unless it is considered to be an appropriation under item 7 of subdivision 6 of § 17-409 and to be used for any purpose for which county general funds could be used if the purpose is within the purview of “priority expenditures” enumerated in 31 U.S.C.A. § 1222. We do think it proper within the limitations just stated. We agree with the chancellor, however, that no expenditure of funds beyond these limitations is authorized by this appropriation.

Appellants contend that the court erred in granting injunctive relief, saying that the court was indirectly accomplishing what it could not do directly, i.e., enjoin Mackey, individually and as county judge, and Tedford, as county treasurer, and thereby effectively enjoin the county court. We will not dwell upon this matter, because we see no necessity for an injunction. The power of the court to enjoin the treasurer is clear under the authority of Worthen v. Roots, supra, as previously pointed out in this case. The power to enjoin the county judge as judge of the county court is at least doubtful. But neither of the officials involved here appears to have any disposition or inclination to evade or avoid the governing law. It seems inappropriate, under these circumstances, to enjoin these officials, in any capacity. It is quite sufficient at this time to treat the action as one for a declaratory judgment. See Arkansas Association of County Judges v. Green, 232 Ark. 438, 338 S.W. 2d 672.

Accordingly, the injunction is dissolved and that part of the court’s decree declaring the appropriations unlawful is reversed and the cause remanded for the entry of a declaratory decree limiting allowances from the contingent fund appropriation of county general revenues to claims based upon obligations of the county for indispensable services of county government (described in Items 1, 2, 3 and 4 of Ark. Stat. Ann. § 17-409) in excess of appropriations made or obligations imposed upon the county by legislative enactment where the amount of the obligation is not left to the discretion of the county court and prohibiting the payment of any claim for a contractual obligation for any other governmental purpose for which a separate, specific appropriation was made by the quorum court, unless such contract was made pursuant to legislative direction or requirement and the specific appropriation made has been exhausted. The decree shall apply the same limitations to the contingent fund appropriation of federal revenue sharing funds and the additional requirement that claims paid out of this appropriation must also be limited to obligations for priority expenditures enumerated in 31 U.S.C.A. § 1222.

George Rose Smith, J., concurs.

Byrd, J., dissents.

Conley Byrd, Justice,

dissenting. I disagree with that portion of the majority opinion that holds the “Contingent Fund” appropriation to be legal. I also disagree with the majority’s conclusion that the record shows that only expenses or obligations imposed by law were being allowed on the “Contingent Fund.”

This court has recognized in Nevada County v. News Printing Company, 139 Ark. 502, 206 S.W. 899 (1918), that Art. 16, § 12 of our Constitution is applicable to the several counties. That provision of the Constitution provides:

“No money shall be paid out of the treasury until the same shall have been appropriated by law, and then only in accordance with said Appropriation.”

In Worthen v. Roots, 34 Ark. 356 (1879), while construing Ark. Stat. Ann. § 17-409, set out at page 10 of the majority opinion, we held:

“. . . [I]t will be seen that the first four [provisions] are of an indispensable nature, essential to the support of the government. They are for services that must be performed, or the business of the counties must stop. The last three are not supposed to be imposed by necessity, but are matters of contract. It is well that appropriations be made for all purposes, but of great consequence that in the matter of contracts the expenses of the counties should be limited to the amounts appropriated. This is impossible in cases of positive service required by law and expenses incident to them; and in accordance with this view the legislature did not reimpose upon the county court any disability as to allowances ... .”

In Fones Hardware Co. v. Erb, 54 Ark. 645, 17 S.W. 7, 13 L.R.A. 353 (1891), we held that a contract for building a county bridge made without a previous appropriation therefor by the levying court was void.

In Nevada County v. News Printing Co., 139 Ark. 502, 206 S.W. 899 (1918), we held that a valid contract, entered into by the county clerk in accordance with an act of the legislature could not be paid by the county court without an appropriation.

In Pressley v. Deal, 192 Ark. 217, 90 S.W. 2d 757 (1936), we had before us a quorum court appropriation allowing the county judge $300 for unusual expenses. We there held that those expenses could not be paid out of the appropriations under the seventh subdivision of Ark. Stat. Ann. § 17-409, supra, which provides: “ ... to defray such other expenses as are allowed by laws of this State.” The theory was that no law of this State authorized the allowance of the expenses.

In Martin v. Bratton, 223 Ark. 159, 264 S.W. 2d 635 (1954), there was before us a quorum court appropriation "... from the County General Fund to allow the County Judge to use it as he sees fit and deems necessary.” In holding this appropriation invalid, we said:

“Counsel for appellees have cited us to no Statute or case and our search has likewise failed to discover any —that allows the Quorum Court to turn over $20,000, or any other amount, to the County Judge ‘to use as he sees fit and deems necessary.’ That such an appropriation is not within the purview or spirit of our Statutes is shown by a study of § 17-412 and § 17-414, Ark. Stats. These provisions clearly envision (1) that all appropriations by the Quorum Court must be for a specific purpose allowed by law; (2) that after the appropriation is made, then any allowance of a claim against that appropriation must be by the County Court and not by the County Judge; and (3) that the County Court order of allowance must specify the appropriation against which the claim is allowed before the money can be drawn out of the Treasury. Although the County Judge presides over the County Court, it is the County Court that makes the order of allowance, and not the County Judge. Art. 7, § 28, of the Constitution so provides. See also Lyons v. Pike County, 192 Ark. 531, 93 S.W. 2d 130. In the case at bar, the Quorum Court by its appropriation of the $20,000 ‘to allow the County Judge to use it as he sees fit and deems necessary,’ attempted to entirely by-pass the functions of the County Court, because the appropriation was to be used by the County Judge, rather than by the County Court.” Id. 225 Ark., at 161-162.

Judge Mackey testified that he had made payments from the “Contingent Fund” in past years for charities and for the moving of a sewer line from the courthouse for the construction of the convention center. On direct examination the record at page 88 shows the following testimony by Judge Mackey:

“Q. Do you have a set of — the budget makes no guide line that I can see as to how these contingent funds are to be spent. Is that your understanding?
A. It is set up for emergency purposes, sir. If we run out of funds in one of the categories set out — we don’t know how much we are going to spend. Fact of the matter, not a dime of the Federal Revenue Sharing money has been spent yet. We have not paid out a dime against this. The contingent fund is simply if we run out of funds in one of the categories which it is appropriated, we can reach in the contingent fund and supplement that.
Q. Who will make that decision?
A. I will.”

The Chancellor who observed the witnesses as they testified in a written opinion made the following observation:

“The 'Contingency Fund’ of the General Revenues in this case does not meet the tests for lawful appropriations laid down by the Supreme Court of Arkansas. This fund is not authorized by any statute; it is not being limited to the expenses of the administration of the County Court; it is not for a specific purpose in accordance with the law; and it is being used for all sorts of county expenses.”

It would appear that his finding on the fact issue is entitled to some weight.

Thus, if we consider the “Contingency Fund” without the evidence as to the allowances made therefrom, it appears to me that it is nothing more nor less than an attempt to entirely by-pass the functions of the county quorum court contrary to Article 16, § 12 of our Constitution. If we consider the testimony then it certainly appears evident that the County Judge is using the “Contingency Fund” to defray deficiencies under any appropriation authorized by Ark. Stat. Ann. § 17-409 including those that are discretionary. The latter results in the payment of claims without an appropriation by the county quorum court or in excess thereof, contrary to the many decisions of this court that have construed the same constitutional provisions and laws here involved.

For the reasons stated, I respectfully dissent.

      We do not overlook the two items relied upon by appellee to show previous use of the “contingent fund.” They are payments to charities and payment for moving the sewer line for the courthouse, necessitated by construction of a convention center across the street. The latter is a non-recurring expenditure. Although the propriety of these items may be subject to serious doubt, we do not believe that these matters contravene our statement regarding the intentions of the officials.