text:
    Bosely vs. Woodruff County Court.
    County Courts : Authority of, as to collector's bond.

    Where a sheriff presented his bond as collector to the county court for approval, and the bond was refused on the ground that the same-was not presented within the time specified by the statute, and the court appointed another person as collector: On mandamus to

    compel the county court to pass upon the bond: Held., 1. That all the sheriff was bound to do was to present his commission as sheriff to the county court to satisfy its members that he was ex-officio entitled to the office of collector; that the sole duty of the county court was to pass upon the sufficiency of the bond and the solvency of the security, and whether the failure to give the bond within the time specified by the statute forfeited the right of the sheriff to the office of collector, was a question upon which the county court was not authorized to pass. 2. That the act of approving or disapproving a collector’s bond is ministerial, ad where the court fails or refuses to act, mandamus will lie.
    PETITION for Mandamus.

      Montgomery & Warwick, for petitioner.

      Wiltshire & Allen, for defendant.
   McClure, C. J.

The relator in this case asks for a writ of mandamus against the county court of Woodruff county, commanding and compelling said county court to assemble and hold a term of said court, to take action and approve his bond as collector of said county, and directing said court to order the said Albert Adams to turn over to him the tax-books of said county, etc.

Bight at the threshold of this case we are met with the proposition, that it is not within the province of this court to direct an inferior court, clothed by law with jurisdiction of the subject matter, and having a legal discretion, what action it shall take. We are told that in such a case, no matter how erroneous the action of the inferior court may have been, that it cannot be reviewed on mandamus. It is true that a determination by a judicial tribunal of a judicial question cannot be reviewed by this court on mandamus, but while this is so, it is equally true, if the action required is that of a ministerial or executive character, that the court will not stop at commanding the person or authority so charged to act, but will direct in specific terms what shall be done.

The first question to be solved is, “ Is the approval or rejection of a collector’s bond a judicial, or a ministeral act ?” This self-same question was asked in the case of Adamson v. La Fayette County Court, 41 Mo., 225, and the court said: “ The only duty of tbe court is to be satisfied that the bond and security are sufficient. The approval or rejection of the bond is essentially ministerial, though coupled with a discretion. There is nothing presented before the tribunal for adjudication, and its action is not the exercise of a judicial discretion or judgment within the meaning of the rule.

Let us see where it would lead to, if it should be held that the approval or rejection of a collector’s bond is a judicial act. Under the 176th section of the revenue law of 1871, the presiding judge of the county court, in vacation, is clothed with power to approve the bond of the collector. Suppose he should refuse to approve a bond that was formal in all its parts, and the solvency of which no fair-minded man would question. What is the remedy of the collector in such a case? Could he appeal? Why, the answer is, that the refusal to approve a bond is not a judicial determination, and, therefore, not appealable from. Does the fact, that the approval of the bond, after a certain period, is by law transferred to the county court, change the character of the act ? We think not. Having come to the conclusion that the approval or rejection of a collector’s bond is a ministerial and not a judicial act, our next inquiry will be, Has the relator a clear legal right to the performance of the thing demanded? The right of the sheriff of a county to act as collector is derived from legislative enactment. The 78th section of the law declares that, “Each sheriff in this state shall be ex-officio collector of all taxes assessed on the tax-books of his county.” Section 79 declares that “each sheriff, before entering upon his duties as collector of taxes, shall give bond and security to the state to the satisfaction of the county court, conditioned,” etc. Section 176 provides that “the presiding judge of the county court shall have power to approve the bond of a collector of revenue in vacation, subject to the approval or disapproval of the county court at its first meeting thereafter.” Section 80 declares that “ if the sheriff of any county should fail to give bond, as provided in section 79, before the first day of January of each year, the clerk of the county shall convene the county court forthwith, if not then in session, and said court shall immediately appoint some competent person as collector.” From the foregoing sections it is incumbent on the relator to establish two things: first, that he was the duly and legally elected sheriff of Woodruff county; and, second, that he gave the required bond within the time prescribed by law.

He sets out in his relation, and the facts are admitted by demurrer, that he was duly and legally elected sheriff of Woodruff county, on the 5th of November, 1872 ; that he was duly commissioned as such by the governor; that he is a legal, and qualified elector of the state; that he has taken the oath of office prescribed by the constitution ; that he is his own successor; that on the 10th day of January, 1873, he presented his bond as collector of said county in the penal sum of $162,-786, conditioned as the law directs, with good and sufficient sureties thereto, to the county court, which said court was then in session, and that the same was by the clerk filed ; that said court, regardless of its duty, refused to take any action on said bond, to either approve or disapprove the same ; but unlawfully and fraudulently in collusion with one Albert Adams, connived and conspired to defraud him out of the benefits of said office of collector; and without any authority therefor, made an order appointing Albert Adams collector of said Woodruff county, who, anticipating the action of said county court, and being in collusion therewith, presented to said court a bond, which he had previously prepared, that was then and there accepted and approved, and the clerk of said court ordered to turn over the tax books to said Adams, which order was then and there obeyed. None of these facts are contradicted or controverted, and the defendants stand before this court saying, “What are you going to do about it? We are a judicial tribunal, and our discretion cannot be controlled by mandamus.” We have already exploded the idea that the county court was acting judicially when it was approving or disapproving a bond, and this brings us to another important inquiry, and that is: “ Has the relator any other adequate remedy? ” An appeal will not lie from a ministerial act, nor could the proceedings of the county court in this case be quashed on certiorari. It may be suggested that the question now is, which of two persons is entitled to the office, and that quo warranto and not mandamus is the proper remedy by which to settle that question. To this we reply that quo warranto is the state’s remedy, and not that of an individual, and that it will not be granted to determine a private right, and even if it could, it would not settle the question at bar. Ramsey v. Carhart, 27 Ark., 12. Finally, it is asked if the relator has not an adequate remedy provided him by section 525 of the civil code, which declares that “whenever a person usurps an office to which he is not entitled by law, an action by proceedings at law may be instituted against him, either by the state or the party entitled to the office.” It must be borne in mind this is not a proceeding to test the title to an office, or whether Adams is a usurper, but on the contrary, a proceeding to compel the county court to approve the bond of the relator. The result of a trial under the 525th section of the code would not be decisive of the question at bar, for the settlement of the question of who was entitled to the office does not determine whether the county court shall approve or disapprove the bond presented that body by the relator. The mere approval of Bosely’s bond does not preclude Adams from testing his right to the office. In the proceeding at bar, Adams is not a party to the suit, either plaintiff or defendant, and no matter what the order of this court may be, it cannot affect his legal rights. When the law says mandamus will not issue where the party has another adequate remedy, it means chat it will not issue where the same parties could go before another tribunal, and there adjudicate and settle the matter in dispute, that is asked to be settled by mandamus. State v. Ely, 43 Ala., 557.

Having seen that the relator could not appeal from a ministerial act, and that certiorari would not lie to quash the action of the court, and that if it did, it would not afford the relator a remedy, and that he could not assert his rights either under the 525th section of the code, nor by quo warranto, it necessarily follows, there is no other adequate remedy. This question settled, we will return and inquire, first, whether the relator was duly and legally elected sheriff of Woodruff county; and second, whether'he gave the required bond within the time prescribed by law ? The first inquiry is admitted, which restricts the inquiry as to whether he gave bond within the time required by law. The revenue law says the bond shall be to the satisfaction of the county court, and shall be given before entering upon his duties as collector, and that, if not given before the first day of January of each year, the county cleric shall convene the county court, and that said court shall appoint a collector. The relator himself shows that the bond was not tendered to the county court before the first of January. Did this forfeit his right to the office ? The general rule is, that where a statute specifies the time within which a public officer is to perform an official act regarding the rights and duties of others, it will be considered as directory, merely, unless the act to be performed, or the language used by the legislature, shows that the designation of time was intended as a limitation of the power of the officer. Sedgwick, Stat. and Con. Law, 372.

In the case of The People v. Wescott, 12 Wend., 48, which was a proceeding by quo warranto, the question was, whether or not a sheriff lost his office by neglecting to give his official bond within twenty days after he shall receive notice of his election. The facts at the trial show that the bond was not filed within the twenty days, and the court held that the neglect did not forfeit his right to the office. In the case of The State v. Carneall, 10 Ark., 156, which was a proceeding by quo warranto, the question was, whether a failure to return his assessment list within the time prescribed by law did not forfeit his office, and the court held that it did not. In the case of The State v. Lewis, 10 O. S., 129, which was also a proceeding by quo warranto, the question was whether or not a sheriff lost his office by neglecting to give his bond within ten days after receiving his commission, as the statute directed. The evidence disclosed that the bond was not tendered for approval until seventeen days after the time, and the court held that the neglect did not forfeit the office. If we should follow in the wake of these authorities, it at once becomes apparent, upon principle and from analogy, that the failure of the relator to file his bond before the .first day of January did not work a forfeiture of the office. All these decisions are based upon the theory that such statutes are directory. Yet, in the case of Parker v. Overman, 18 How. (U. S.), 143, the supreme court of the United States held that the failure of the assessor to file his oath of office within the time required by law, rendered the entire assessment void, and that a legal sale of land for taxes could not be made that was based upon an assessment made under such circumstances. The correctness of this opinion, however, is questioned in the case of Scott v. Watkins, 22 Ark., 556, and we confess ourselves at a loss to understand why it is that an act, which in a direct proceeding, is not sufficient to forfeit the office, is sufficient to invalidate all his subsequent acts as an officer.

Sedgwick, in his work on statutory and constitutional law (380), says: “In regard to the cases where statutes'are held to be directory, the greatest difficulty exists; and there appears no mode of obviating it until legislative enactments shall be framed so as to specify, with precision, the consequences intended to follow’ upon a disregard of their provisions.” The statutes now under consideration belong to the class that do not specify, with precision, the consequences intended to follow upon a disregard of the law, fixing a time within which the bond should be given. A failure to give the bond as collector, under the law, does not in any manner interfere with the right of the sheriff to hold his office, and the law imposes no penalty on him for failing to file a bond as collector. The legislature seems to have contemplated" and provided for a contingency, in which the sheriff might not be able to give a good and sufficient bond, and to have directed how the county court, in such a case, should proceed. This, we say, more clearly seems to have been the intention of the legislature, than to have provided a contingency, in which the county court should be clothed with an appointing power. Having seen that a neglect to present a bond to the county court before the first of January did not necessarily forfeit the right of the sheriff to the office of collector, let us inquire what was the duty of the county court when Bosely presented his bond to it on the 1st of January, 1873.

The law says (sec. 79) that the collector shall give bond and security before entering on the discharge of his duties, to the satisfaction of the county court. This grant of power only authorizes the county court to inquire into two things: first, the bond, and second, the security, and is not a grant of power to determine which of two persons are entitled to an office, or whether one of them has been guilty of such neglect and laches as to deprive him of his right to it. In the case of Adamson v. La Fayette County Court, 41 Mo., 554, the supreme court of Missouri, in construing the power and duty of the county court under precisely such a statute as we have, and in a case where the county court refused to approve the bond offered, by the sheriff as collector, on the ground that the sheriff had not filed his bond as sheriff at the time he tendered his bond as collector, said: “ The county court was bound to recognize the commission issued by the governor as conclusive of the relator’s right to the office of sheriff, and could not go behind it for the purpose of ascertaining whether all things required of him had been performed or not.” In that case, as in the one at bar, the county court, instead of confining its action to the bond and security, assumed unto itself the power of deciding that the sheriff was not entitled to the office of collector, because of certain neglects which, in the opinion of the county court, worked a forfeiture of the right to the office. The record of the county court, a copy of which is before us, says: “ Upon consideration of said bond, the court was of the opinion that the bond has not been given in compliance with law.” These words, followed, as they are with the appointment of Adams, rather denote an objection to the right of the sheriff than to the bond or the sureties. The county court is a court of limited jurisdiction, which must be shown affirmatively, and if it is clothed with the power to declare an office forfeited, as it has in effect done in this case, we have been unable to find the statute coiiferring the jurisdiction. In our opinion all that the relator was bound to do was to present his commission as sheriff to the county court to satisfy its members that he was ex-officio entitled to the office of collector; this done, the sole duty of the county court was to pass upon the sufficiency of the bond and the solvency of the security. Whether the failure to give the bond before the first of January forfeited the right of the sheriff to the office of collector is a question upon which the county court is not authorized to pass, and its action in such case is coram non judice. State v. Ely, 43 Ala., 575.

But a short time since, a cause was pending in this court, where it appeared that a county court had'met at two o’clock in the morning and adjourned to prevent a sheriff from presenting his bond as collector to the county court for approval, for the purpose of placing it within the power of the county judge and his midnight conspirators to appoint a collector. The case now before us is but a little less shocking to a sense of justice than the one mentioned. The facts in this case disclosed show that for three weeks before the first day of January there was no session of the county court, and that on the first of January the court convened. Before it was the sheriff, with what we are to concede was a good and sufficient bond as collector, and one Adams, who also had a bond with him as collector. The record of the county court shows conclusively that the relator presented his bond to the court for approval, and that that body on examination found it had not “ been given in compliance with law,” and proceeded to appoint; Adams. It takes time to get a collector’s bond, such as a county court should accept for $162,786, and it is idle to insist that Adams had this bond prepared and signed without some previous understanding with the members of the county court that he was to have the appointment. It is the duty of the county court to furnish every person with an opportunity to comply with the law, where its action is required, in oi'der to perfect the right of another. The provision in the law that the county court might, in default of the sheriff to give a collector’s bond by the first of January, appoint some person to act as collector, was intended to authorize the county court on the happening of a contingency, arising from a neglect of the sheriff to provide for a collection of the taxes, and was not intended as the conferring of an appointing power which should spring into being by reason of the iniquity of the members of the county court. On account of the existence of an opinion at variance with that here expressed, it may not be amiss, in connection with this case, to speak of the powers of the county court in the matter of approving and disapproving bonds.

This whole question was fully and elaborately reviewed by Judge Wagner, in the case of Adamson v. La Fayette County Court, 41 Mo., 226. In that case the judge said : “The only duty of the court is to be satisfied that the bond and security are sufficient. * * * When the law devolves upon an officer the exercise of a discretion, it is a sound- legal discretion, and not a capricious, arbitrary or oppressive one. * * A hostile county court could remove any sheriff in the state and vacate his office by declaring his bond insufficient, and arbitrarily refusing to hear his testimony in regard to the solvency and pecuniary responsibility of his sureties. * * * A discretion delegated to an officer is a sound, legal discretion, the meaning of which is well known and understood in the law, and is not an unlimited license to the officer to do and act as he pleases, irrespective of restraint. The universal practice has been and doubtless it is the most satisfactory way of proceeding in determining the sufficiency of a bond, to examine the parties to the, bond who have signed it, touching their responsibility, and also other witnesses who are conversant with their means, in open court, and we are at a loss to know why this privilege was denied the relator. He had the right to introduce evidence concerning the sufficiency of the bond ; it was the'duty of the court to hear the same.” What is here stated in relation to the approval of bonds we fully indorse, and add that in every case where a bond is tendered, it is the duty of the officer or authority charged by law with its approval, to make proper inquiry in relation thereto, not for the purpose of ascertaining whether he likes or dislikes the persons whose names are signed thereto, but whether the bond is formal and whether the sureties are worth the amount named in the bond over and above the exemptions allowed by law. The mere fact that all the signers to a bond are not pei’sonally known to the person who is to approve the bond is not sufficient to warrant its rejection. In such case the person tendering the bond should have the privilege of presenting proof of the pecuniary responsibility of such persons.

We are unanimously of opinion that the failure of the relator to present his bond at an earlier date than was done in this case did not work a forfeiture of his right to the office of collector, and but for the fact that the collection of taxes is already made and that mandamus at this late day would not invest him with the office, the writ would issue. For the reason, therefore, that the writ at this late day would be ineffectual, it will not issue.


source: Caselaw Access Project

author: Gregg, J.

license: Public Domain

text:
    English vs. Oliver, Collector.
    Legislative Enactments : When presumed constitutional, etc.

    Where an act. of the legislature is regular upon its face, duly approved by the speaker of the house, the president of the senate and the governor of the state, this, if not conclusive, raises a strong presumption in favor of the validity of the act, and where the proof fails to show that the legislature failed to conform their proceedings to the constitution, the act will be held as a valid law in full force.
    Legislature : Power of, over the subject of taxation.

    The power of the legislature over the .’subject of taxation is supreme, except only wherein limited by the constitution, and they may make and enforce such laws respecting the amount and kind of funds in which taxes shall be paid in the political subdivisions — the counties and towns — as may be deemed proper, and such counties and towns cannot resist, nor can their local officials in any way modify such regulations.
    Statutes Construed: Acts of July 33, 1868, March 34, 1869, March 16,1871, and April 39, 1873, construed; in what funds taxes payable.

    All state, poll, county, municipal, district school, and license taxes may be paid in five per cent, treasurer’s certificates, commonly known as state scrip, except tax to pay interest on the public debt. State scrip issued since the passage of any act by the legislature levying a tax, or authorizing a county or city to levy a tax, to be paid in United States currency, cannot be taken in payment of that tax; bona fide holders of county bonds issued in pursuance of the act of March 38, 1871, cannot be compelled to accept treasurer’s certifi- ■ cales issued after the passage of that act, nor could the counties be compelled to accept such scrip for the taxes levied for such purposes; state scrip issued since the 39th of April, 1873, cannot be received in payment of the tax levied to pay interest on county bonds issued under the provisions of the act approved April 39, 1873; neither can the state liquor tax, levied for the benefit of the sinking fund, be paid in scrip issued since April 38,1873.
    PETITION for Mandamus.

      E. H. English and T. D. W. Yonley, for plaintiff.

      W. G. Whipple, for defendant.
   Gregg, J.

On the 29th of December, 1873, the plaintiff filed his petition in this court, against the defendant as collector of taxes for Pulaski county, alleging that he was a taxpayer in said county and the owner of lots 1, 2, 3, 8 apd 9 in block 220, west of the Quapaw line, in the city of Little Rock ; that said lots were valued and assessed upon the tax books of said county for the year 1873, at $1,450; that the tax books are in the hands of said Oliver as collector, and that he is proceeding to collect the state, county and city taxes thereon ; that taxes are assessed as follows upon said lots and against the petitioner, to wit:

.State general purposes tax, ------ $14 50

Interest on the public debt tax, ----- 3 63

One poll school tax, - - - - - - - 1 00

County taxes are as follows:

County general purposes tax, - - - - - 15 95

County interest tax, - - - - - - - 6 52

County road tax, ------- 1 45

County building tax, - - - - - - - 5 07

City taxes' are as follows .-

City general purposes tax, - - - - - 24 64

City sinking fund tax, - - - - - . 1 45

District school tax, - - - - - - 10 89

City railroad tax, - - - - - - 4 35

Total, - - -'.....$89 46

That these several items of taxes were assessed and entered upon the tax books under the provisions of the act of the general assembly of April 28, 1873; that for want of money to pay her liabilities the state has from time to time issued auditor’s or treasurer’s certificates or warrants, and made them receivable for state, county and municipal taxes, and he insists that he has a right to pay all such taxes in such treasurer’s certificates; that on the 24th day of December, 1873, he tendered to,said Oliver as such collector $89.46 in such treasurers’s certificates, issued in September, 1871, in payment of ■the taxes so assessed against him upon the lots aforesaid; and at the same time he tendered him in such scrip the full amount of each separate item of taxes as above stated in payment thereof, but that he refused to accept such scrip in payment of said taxes and every item thereof, except the item of state tax for general purposes of $14.50.

That (he also tendered said collector a like amount of like treasurer’s certificates issued in June, 1875, in payment of said sum of taxes, and also for the several items thereof, all of which he refused to accept only for the said item of $14.50.

And he prayed the court to issue a mandamus against the said Oliver, as such collector, compelling him to accept said certificates in payment of said several items of taxes.

Oliver appeared by his attorney, W. G. Whipple, and responded that the act of the legislature of the 28th of April, 1873, under which the said taxes were assessed, is unconstitutional and void, not having been read three times on different days in the house of representatives, nor the rules suspended, which required such readings, etc.

And he also interposed a general demurrer to the plaintiff’s complaint, and upon this response and demurrer the cause was submitted. .

The first question raised in the response goes to the constitutionality of the act of the legislature, under which this assessment was made, alleging that in the house of representatives the bill was not read three times on different days, nor were the rules suspended, etc., and that the act is void.

The act is regular upon its face, duly approved by the speaker of the house, the president of the senate and the governor of the state, and published as a law.

If not conclusive, this raises a strong presumption in favor of the validity of the act.

Tbe exhibit made of record in tbe case, and, which counsel have agreed is a correct copy of the house journal, shows that different bills were introduced and read a first and second time and referred to committees; and that on the 22d of April, 1873, the house proceeded to consider tbe substitute, for house bills 31, 41, 48 and other bills of the house, entitled “An act regulating the assessment and, collection of revenue.” After certain amendments were offered and voted upon, Mr. Johnson moved that the bill be read a third time, and under the operation of the previous question, it was so ordered and the bill accordingly read a third time by title.

Mr. Erwin called for the reading of the bill.

Pending the reading, Mr. Copeland moved the further reading of the bill be dispensed with. That motion was by the chair ruled out of order. An appeal was taken, and the chair was not sustained.

The question then being upon the passage of the bill, it was put and decided in the affirmative, forty voting for, and thirty voting against the bill — twelve not voting.

The proceedings appear to have been irregular, or that a •complete journal was not made of all that was done. It is not affirmatively shown how this substitute bill came before the house, nor is it affirmatively shown that it was read a first and second time, hut the journal shows it was read a third time. To have a third reading would imply a first and second, and there is nothing before us to show that such readings were not had.

In the case of Miller and Gibson v. The State, 3 Ohio St., 484, the supreme court, in discussing a like question, said : “ But whether the constitution, in the particular under consideration, is merelj' directory or not, * * where the journals show a bill was passed, and there is nothing in them to show that it was not so read, this presumption is not liable to be rebutted by proof,” etc.

Legislators, as well as judges, take an oath to support the constitution, and the law requires us to presume in favor of their action, and the agreed statement of facts does not show that the legislature failed to conform their proceedings to the constitution, hence we find this act to be a valid law in full force. See Hunt v. Van Alstyne, 25 Wend., 605; Coleman v. Dobbins, 8 Ind., 156; Knox v. Vinsant, 27 Ark., 278-9.

By the issues of law upon the demurrer, we are called upon to determine what taxes, state, county and municipal, can be paid in treasurer’s certificates, commonly called state scrip.

Various acts have been passed authorizing the issue of treasurer’s certificates, their general scope being the same, only varying slightly in their rate of interest and use in taxpaying. These certificates are made payable out of the treasury to the holder of a demand against the state, or bearer, but are only issued upon the presentation of a proper auditor’s warrant as an evidence of the state’s indebtedness, and when there is not money out of which such warrants can be paid.

By the act of July 23, 1868, these certificates were to be issued on bank note paper, to bear eight per cent, interest, and to be receivable for all state taxes, except taxes for school purposes, and for all other debts due the state except debts due the school fund.

By act of March 21, 1869, such certificates are “ receivable in payment for all state, county and municipal taxes, and all debts due the state whatsoever, and all collectors of taxes are hereby required to receive such warrants or certificates when tendered in payment for all taxes, state, county, school or municipal, for the amount and interest borne on the face of such certificates or warrants.”

By act of March 16, 1871, it is provided that such treasurer’s certificates shall be issued, to bear interest at the rate of five per cent., and “said certificates shall be receivable for all state and county taxes and all other debts due the state, except interest on the public debt,” which act is still in force. Section 88, page 158, revenue act of 1871, and section 89, page 347, revenue act of 1873, after making various provisions as to when and where the sheriff shall appear to receive taxes, etc., provides that he shall receive county warrants in payment of county taxes, the. orders or warrants that may be payable upon presentation of any township, town or city for their respective taxes, and the warrant of the auditor of state or the treasurer’s certificate for state taxes.

It is insisted that this act precludes the payment of county and other local taxes in treasurer’s certificates. The language used does not convey the idea that the warrants named, alone, are receivable; it appears to be directory to the collector to inform him that such warrants may be received. This is more clearly shown by the manner in which this clause is thrown into the act. The preceding parts thereof provide for what purpose, how much, when and where the sheriff shall collect taxes, and then adds this proviso, by way of explanation, that the several orders are receivable for the several respective taxes. That certainly never carried the intention that nothing but such orders would be i-eceived, or that in the absence of such orders a property holder could not pay his taxes iu such other funds as by law are receivable for taxes.

If the mere fact of providing that these orders shall be taken excludes payment in treasurer’s certificates, or such funds as are receivable under the general law, then these taxes could not be paid in money. We hold these provisions were but directory, and did not change the general law prescribing the funds iu which all the revenues may be paid.

The first act made treasurer’s certificates receivable for all state debts and taxes except those for school purposes. The next important act, March 24, 1869, drops all exceptions, and declares in most emphatic and. clear terms that these treasurer’s certificates shall be received for all state, county and municipal taxes, as well as all debts due the state, and to make the provisions doubly clear, in the same section, the legislature repeats the affirmation by saying all collectors of taxes are required, when tendered, to receive such warrants or certificates in payment of all taxes, state, county, school or municipal, for their full amount, etc., thus adding in the word “school’’that no doubt could possibly arise as to the extended scope the act would have.

The last scrip act, March, 1871, declares that treasurer’s certificates shall bear five per cent, interest, and be receivable for all state and county taxes, and all other debts due the state except interest on the public debt.

This act does not repeal the former acts, but only repeals so much as conflicts with its provisions. To ascertain what is repealed we need only examine and see wherein its provisions are in conflict with the former acts.

As affecting the issue, value and use of these certificates, there are but two changes — first, the rate of interest is five instead of eight per cent., and an exception as to the tax levied to pay interest on the public debt. The intention of the legislature is certainly clear. If these laws are in force, the state should take these certificates for any and every and all demands she may have against any one (save the item excepted), and that counties and towns should take them for all taxes; and we are clear that this proposition is not affected by the state authorizing the counties to assess her taxes by classes, that is, by itemizing her levies, as so much for current expenses, so much for roads, etc. Whatever sums the county authorities are authorized to assess and collect of the property holders of the county for public purposes is county tax, and, whether levied in one item and distributed after collection, or collected in specific divisions, as for roads, for poor, etc., is wholly immaterial. It is a levy for the support of the government, and is necessarily embraced in the term, county taxes; and the various levies made for state purposes are likewise state taxes. If these burdens are not taxes there was no authority under the constitution to impose them; and we have high authority for saying that their character is the same, and that they are taxes whether for specific purposes or not. See McGee v. Mathis, 4 Wall., 143. The legislature of Arkansas passed a law to make a special assessment on swamp lands in Chicot county, for their reclamation, a mere local assessment for the benefit of the lands, a betterment, as this court termed it. But the supreme court of the Unites States, through Chief Justice Chase, declared this to be a state tax; that the former law exempting swamp lands from taxation embraced this assessment; there the legislature had only said free from taxation, and had not used the strong words free from all taxes.

In these scrip acts we infer that the legislature meant what it said, and when it said all taxes it included each division of taxes. Why not say state taxes instead of all state taxes, if but general tax was meant? All meant something, and the acts' do declare that all state, county and municipal taxes and debts due the state shall be payable in these treasurer’s certificates.

But it has been argued that the former scrip acts were temporary, and the last is not so comprehensive in terms. The second section of the act of March 24, 1869, does not declare the act temporary, but conveys the contrary idea, in this language: “That the certificates or warrants issued by the treasurer of the state of Arkansas, under and by virtue of the act aforesaid, and all certificates or warrants which may hereafter be issued by said treasurer in pursuance of law,” etc. This latter clause shows that future issues were contemplated. The first clause referred to such certificates as were issued under the first act (and this whole act of 1869 was but an amendment and a part of the first act), the latter clause to such as might thereafter be issued according to law, and hence gave no intimation of its expiration by any speedy limitation; and the act of March 16, 1871, provides for the issuance of such certificates, bearing five per • cent, interest, and declares them receivable for all state and county taxes, and all other debts due the state, except interest on- the public debt. There is no express repeal of the former acts, and no repeal whatever, only of such acts as are inconsistent with this last one, and we can discover no inconsistency between this and the former act, only these certificates should bear but five per cent interest, and be not receivable for amount to pay interest on the public debt, and it appears to us they were “issued in pursuance of law,” after the act of 1869, and we perceive no valid objection to their being paid out as provided in that act, saving the exception in the last act, if the later was less comprehensive, which we need not concede.

The -rule is, a later act will not repeal a former, unless so inconsistent that both cannot have effect, where no repeal is enacted.

The rule as to repeals by implication is tersely stated by Mr. Justice Miller in the case of The United States v. Ten Thousand Cigars, 1 Walworth, Cr. Ct., 126. He says: “It is well settled that no repeal by implication will be allowed, unless it be a necessary and irresistible implication — the statutes must be so inconsistent that if the later stands, the former must entirely fall.”

The supreme court of Alabama, in the case of George v. Skeates & Co., 19 Ala., 738, says: “ It is true the courts will not construe a prior act to be repealed by a subsequent one, in the absence of express words of repeal, unless the provisions of the subsequent act are directly repugnant to the former.”

The supreme court of Illinois, in the case of Hume v. Gassett, 43 Ill., 299, says: “A repeal of a law by implication is not favored; the repugnance between statutes must be so clear and plain that they cannot be reconciled to justify a resort to this doctrine.”

The supreme court of Georgia, in Conner v. Southern Express Company, 37 Geo., 399, says: “Bepeals of laws by implication are not to be favored, and when, by a fair and liberal construction, they can, without torture, be made to harmonize, no court could be justified in deciding that the last act repealed the first.”

In White v. Johnson, 23 Miss., 68, the supreme court says: “ A series of acts upon one subject are to be construed as one whole, and where in a subsequent statute there is no express repeal of a former, the court will not hold the former to be repealed by implication, unless there be a plain and unavoidable repugnancy between them.”

In the case of Lewis, Governor, etc., v. Stout et al., 22 Wis., 234, it is said: “ The act of March, 1860, to provide for letting the public printing by contract, seems to be a substitute for the previous act on the same subject; and this rule would no doubt govern in its construction but for the language of the fifteenth section. That section provides that all acts inconsistent with the provisions of this act are hereby repealed. This language seems to indicate very clearly that if there were any parts of the former act not inconsistent the same were not repealed.

And Mitchell v. Printup, 27 Ga., 469, is to the same effect. It is there held, “the fourth section of the act repeals laws and parts of laws militating against this act. If, therefore, there be a prior statute having provisions conflicting with some parts of the act of 1858, but not with the whole of it, the conflicting parts of the law are repealed and none others.”

In Furman v. Nichol, 4 Wall., 61, the supreme court of the United States says: “The courts do not favor repeals by implication, and never sanction them if the two acts can stand together. * * There are in the statute no words of negation, saying no funds other than those specified in the section shall be received,” etc.

In our last scrip act there are no words of negation, and nothing saying no other funds than such certificates-as specified shall be received' — no clause repealing former laws on the subject — and the leading fact to be accomplished was the issue of interest-bearing state certificates for her indebtedness, and the only change was in a mere incident to that object, lessening the rate of interest and excepting the payment of the interest tax.

Then, according to the above decisions, our construction of these acts is quite clear. And we might show by scores of cases that this is but the announcement of a general rule of law. See the following and the cases they refer to: Bacon’g Abr., Tit. Statutes (D); Pierce v. Bank of Mobile, 23 Ala., 705; Hawkins v. Hurlburt, 10 Ohio, 178; White v. Johnson, 23 Miss. (1 Cush.), 68; Planter's Bank v. State, 6 S. & M., 628; Elrod v. Gilliland, 27 Gra., 468.

The next important question is, the power of the legislature to make and enforce such laws in her political subdivisions, the counties and towns.

That absolute sovereignty in a government can do whatever it wills to do, whether just between its subjects or* not, is a proposition no statesman or lawyer will dare controvert. In our states the sovereign power is in the people, and by them it is exercised through the legislature, composed of their representatives, except in so far as by compact with the United States, or provisions enacted by our own constitution, it has been limited. Beyond these restrictions, the legislature represents and exercises the sovereignty of the state, and may do whatever a sovereign power can do. Under these limitations every citizen is protected against encroachments upon what is termed his natural or inalienable rights, such as the enjoyment of life and liberty, the acquisition of property, the pursuit of happiness and exemption from infamous punishment, except by the judgment of his peers or the law of the land, etc.; and also, the state is prohibited from impairing the obligation of contracts, the coining of money, or emitting bills of credit, etc.

The certificates drawn in question in this case are so clearly not bills of credit, under the provisions of the federal constitution, that his honor, Judge Searle, did not think fit to elaborate an argument on that subject when delivering the opinion of this court in the case of Ramsey v. Cox, wherein the question was raised; and we will not now belabor a point by him, with the consent of the court, deemed unnecessary in that case.

Counties and towns are but subdivisions of the state; they are the creatures of legislative will. The people of whom a county or town is composed have no power to resist the legislature in the creation or destruction of their corporate organizations, rights or privileges, only wherein limited by the constitution. The legislature may say how many counties we shall have, where their county seats shall be, etc. May tax Jightly.or draw heavily upon the people for county purposes, and the people, being but a part of the state, cannot resist; nor can their local officials in any way modify such regulations. But this branch of the present case was argued at some length and authorities cited by the minority of this court, in the case of Wells v. Cole, 27 Ark., 603, and rather than reproduce argument and authority, we refer to that opinion as the law upon this point.

We do not assume that towns and other corporations may not be granted the privilege of holding property for certain/ purposes, and that their vested property rights are within the protection of the constitutions, and such rights cannot be destroyed by a legislative enactment; but not so with their political privileges or public rights, and as shown in the argument above referred to, municipal corporations, or quasi corporations, such as cities and counties, cannot disregard the provisions of the acts of the legislature for the collection of revenue, because they are but its creatures, and have no sovereignty, have no power whatever to collect a single dollar of tax for any purpose whatever, unless it is conferred upon them by the legislature — their taxing powers are all derived from that source, and if they are dependent upon its will for every cent of revenue they raise (and no one, so far as we know, has ever questioned this), how can they set up authority and say they will not receive their revenue in such funds as are provided by law, and that the state cannot compel,them to accept such funds as she herself does accept ? How the creature swells in importance when the creator’s equal does not satisfy her!

It has been urged that the the state’s paper is below par, and if counties and towns accept that they will be embarrassed in paying their debts and carrying on local government. We might well admit the force of this argument, if made to a legislature when organizing a policy for the counties and towns, but it is feeble when before a court, attacking the constitutional power of the legislature. If that body should enact that for all purposes the county supervisors should levy a tax of but one mill on the dollar, does any one pretend that the county court could levy and collect any more? Of course not; but here this powerful argument would have its full force; the county could not pay hpr debts; she could not build her jails and punish criminals; she could not carry out her county purposes. Suppose she cannot, does that make the law unconstitutional? Does that destroy the power of the legislature to make such a law ? It may convict legislators of of a want of statesmanship, but failing to provide adequate means for county purposes does not destroy their acts performed in the exercise of that sovereignty the people have delegated to them. In other words, bad policy cannot destroy the laws they enact, and if a want of par funds to defray any public expense can defeat the tax laws, we fear some would want to extend the rule and refuse treasurer’s certificates for state taxes. She has debts to pay, improvements to make, and the other objects for which taxes are levied to carry into effect. A policy that placed public credit below par was injurious to state and county; but the question before the legislature was whether every member of the body politic should suffer in all its parts from the burden bad policy and evil acts had thrown upon the commonwealth, and when they have affirmatively answered, we cannot repeal their act.

The sovereignty of a state ought to place her acts above suspicion, and her dignity and character ought to make the payment of her obligations beyond question — especially so among her own subdivisions; if facts show the contrary, the responsibility must rest upon that department that has failed to perform well its trusts.

"While our states hold sovereignty that exempts them from compulsory payment of debts, they have parted with all that would allow them to impair the obligation of a contract, whether made by a state, a county or an individual.

In the case of Woodruff v. Trapnall, this state had granted to a bank a charter, with a provision in it that the notes of the bank should be received in payment of all debts due the state. After this provision was repealed, and a law enacted that nothing should be received in payment of taxes or revenue due the state but'par funds, Woodruff — being by a competent court adjudged in default in paying over revenue to the state — tendered these bank notes, which the state, through her officers, refused. The supreme court of the United States, 10 How., 203, says: “Is this a contract? A contract is defined to be an agreement between competent persons to do or not to do a certain thing. The undertaking on the part of the state is to receive the notes of the bank in payment from its debtors. This comes within the definition of a contract. It is a contract founded upon a good and valuable consideration. * * The notes are made payable to bearer, consequently every bona fide holder has a right * * to pay to the state any debt he may owe it in the paper of the bank. It is a continuing guaranty by the .state that the notes shall be so received. Such a contract would be binding on an individual, and it is not less so on a state. * * A state can no more impair by legislation the obligation of its own contracts, than it can impair the obligation of the contracts of individuals.”

In McGee v. Mathis, 4 Wall., 143, wherein this state passed an act authorizing the issuing of transferable swamp land, scrip, with which such lands might be entered, and provided they should be free from taxation for ten years, etc., and after the issuance of such scrip said act was repealed and a local tax imposed upon the lands; this scrip was located after the repeal. Chief Justice Chase said: “The contract of the state was to convey the land for the scrip, and to refrain from taxation for the time specified. Every piece of scrip was a contract between the orignal holder and his assigns," etc., and held the lands exempt from such tax, and that the issuance. of such scrip was a contract not to be receded from.

In the case of Furman v. Nichol, 8 Wall., 44, it was held that an act of the legislature of Tennessee, providing that certain bank bills should be receivable for- all state dues, was a contract that the state could in no way defeat, but she was bound to accept them, whenever tendered, etc. But we need not now cite numerous authorities on this point, as our Chief Justice, in the case of Jack v. Gordon, not yet published, said : “ The state, like an individual, if she issues her paper- under an agreement that it shall be receivable for such taxes as it may levy, can no more recede from her contract than can the individual,” etc. If a state, with all her features of sovereignty, is bound by her legislative contracts, surely her political subdivisions are no less bound.

We therefore hold, in the language of the law, that said treasurer’s certificates are receivable in payment for all state, county, school and municipal taxes, and all debts due the state whatever.

This includes all state taxes for general purposes, and all taxes for school purposes, and certificates issued before March 25, 1871, for tax to pay interest on the public debt, and warrants or certificates issued prior to April 28, 1873, for all license upon wholesale or retail liquor dealers, under section 157 of the revenue act of 1873.

And for all county taxes, for all general county purposes, for poor, for bridge, for road, for district school and for county building purposes, and any other dues assessed as a tax for any liability that has accrued since the passage of the act under which the warrants or certificates were issued. This includes all license for hawkers, peddlers, auctioneers, circuses, shows, exhibitions, etc., including all the county license tax on venders of liquors, under section 157, aforesaid (with only such exceptions as may come within the terms of a contract); and also for all municipal taxes, including school, street and license taxes not coming within the inhibitions of previous contract; and also for all debts due the state, including fines, forfeitures, escheats, dues for estrays, for internal improvement lands, seminary lands, school lands, bank lands, etc. All of which come within the provisions of the above recited acts.

But there may be claims where money alone will be collected as a tax. The legislature taxes, or grants the taxing power for certain purposes; and counties, cities and towns, under express law, may enter into contracts, and by stipulation in the act of the legislature, and the order of the county board, or an ordinance of a city or town council, may agree to pay by future taxation ; and when such contract is entered into, neither of the parties has a right to annul or impair it. This rule is by no means changed by reason of one party being a town, county or state. It is well settled that a contract once executed binds all parties to it.

In the case of Van Hoffman v. The City of Quincy, the city, by virtue of an act of the legislature, had issued her bonds and provided for the payment of interest, etc., by local taxaation. Afterward the legislature repealed the law authorizing the tax.

The supreme court of the United States, 4 Wall, 555, says: It is well settled that a state may disable itself by contract from exercising its taxing power in particular cases. It is equally clear that where a state has authorized a municipal corporation to contract and to exercise the power of local taxation to the extent necessary to meet its engagements, the power thus given cannot be withdrawn until the contract is satisfied ; the state and the corporation in such cases are equally bound. The power given becomes a trust which the donor cannot annul and which the donee is bound to execute, and neither the state nor the corporation can any more impair the obligation of the contract in this way than in any other. ■

“ The laws, requiring taxes to the requisite amount to be collected, in force when the bonds were issued, are still in force for all the purposes of this case.”

See also The People v. Bond, 10 Cal., 563; Dodge v. Woolsey, 18 How. (U. S.), 331; State Bank of Ohio v. Knoap, 16 id., 369; State of New Jersey v. Wilson, 7 Cranch, 164; Fletcher v. Peck, 6 id., 87, and cases therein referred to.

Bona fide holders of county bonds issued in pursuance of the act of March 28, 1871, are of this class, and cannot be compelled to accept treasurer’s certificates issued after the passage of that act, nor could the counties be compelled to accept such scrip for taxes levied for such purposes, because such change in payment, even if attempted by the state, would be ineffectual and, according to the decisions of the highest court of the country, in conflict with the constitution of the United States. Cases supra.

Upon examination, we find the legislature levied a tax of two and a half mills on the dollar to pay interest on the public debt, and provided that such tax should be collected in United States currency and paid into the treasury in the currency collected.

But there is no provision in this or in any prior or subsequent act of the general assembly authorizing the auditor of state to draw upon, or the treasurer of state to pay out, the said taxes so to be collected in United States currency, and without a violation of the constitution and laws of the state, as well as their official obligations, no part of said currency can be paid out of the state treasury. (Section 8, article X, Constitution.) But the taxing power of the state belongs to the general assembly, and as they saw fit to collect moneys, without an appropriation, and leave them for the next assembly to distribute, the courts have no authority to question their policy.

They provided in both acts of 1871 and 1873 that this specific • tax should not be paid in auditor’s warrants or treasurer’s certificates, hence it cannot be paid in such certificates as the petitioner tendered in this case.

The petitioner failed to aver and show the date and character of the obligations, upon which were assessed county interest tax, city sinking fund tax and city railroad tax. The finding is therefore against him upon these items ; and as to them and the tax to pay interest on the public debt, the writ is denied. As to all the other taxes set forth in the petition, a peremptory writ will issue.


author: English, Sp. J.

text:
    Tucker vs. Horner, Adm’r.
    Confederate War Bonds : Not a valid consideration.

    Bonds issued by this state, during the civil war, in aid of the rebellion, commonly known as war bonds, were not a valid consideration for a promissory note.
    APPEAL from Monroe Circuit Court.
    Hon. John E. Bennett, Circuit Judge.

      Hughes & Smith and Garlund & Hash, for appellant.
   English, Sp. J.

S. H. Tucker sued Oliver H. Oates,

in the Monroe circuit court, on a bill of exchange drawn by Oates 1st February, 1862, in Little Rock, in favor of Tucker, on Bradley, Wilson & Co., New Orleans. Oates pleaded that the “consideration for which said bill of exchange was given was confederate currency, known as war bonds, issued by tbe rebellious government of the state of Arkansas, during the late war, in aid thereof.” To this plea a general demurrer was interposed by the plaintiff below, which was overruled by the court. The plaintiff rested; final judgment was rendered for the defendant, and the plaintiff appealed; after which, Oates died and Horner, his administrator, was made a party in this court.

It was finally settled by the supreme court of the United States, in Hanauer v. Woodruff, 15 Wall., 439, that bonds issued by the state of Arkansas during the civil war, in aid of the rebellion, commonly known as war bonds, were nota valid consideration for a promissory note, etc.

The judgment of the court below must be affirmed.

Bennett, J., being disqualified, did not sit in this case.


author: E. H. English, Sp. J.

text:
    Sayre vs. Thompson et al.
    Failure OE Consideration: When plea of, not good against assignee?

    Matters in litigation were settled by decree of court, and a promissory note executed by the parties in interest in compromise and part settlement under the decree; the note was assigned, and, after assignment, on bill of review by the makers of the note, the decree was set aside, the assignee of the note not being made a party thereto. Suit on note, plea of failure of consideration, that the decree, which was the consideration of the note, had been set aside. On demurrer to plea: Held, that the rights acquired by the assignee of the note, under the original decree, when it was valid and in force, were not prejudiced by the decree on review, the assignee not being a party thereto; but otherwise, if the original decree had been set aside before the note was assigned.
    APPEAL from Phillips Circuit Court.
    Hon. John E. Bennett, Circuit Judge.

      Garland & Nash, for appellant.

      Palmer & Sanders, for appellees.
   E. H. English, Sp. J.

Sayre sued Thompson as administrator of John A. Craig, deceased, in the Phillips circuit court, on the following note:

“Lake Tillage, Arlr., April 17, 1860.
“ $5,000. On or before the 17th of April, 1864, we, or either of us, promise to pay to Emma J. Wright, or order, five thousand dollars, with interest at the rate of seven per cent, per annum from date until maturity, but to bear ten per cent, interest after maturity, if not then paid (negotiable and payable at the Bank of Louisiana, New Orleans), being part of the fourth installment for the sale of the interest in the estate of Junius W. Craig, deceased.
“ Witness our hands the date above.
(Signed) “J. M. Craig,
Jno. A. Craig.”

The note was indorsed by Emma J. Wright to C. T. More-head, and by her indorsed, 1st of November, 1860, to Sayre.

Thompson filed the following answer to the complaint:

“The defendant, Arthur Thompson, as administrator, etc., admits that his intestate made the writing mentioned in the said plaintiff’s complaint, and [admits] the assignments, but states that the consideration for which the writing was executed was the purchase of the interest of the said Emma J. Wright in the estate of Junius W. Craig, deceased, as the same was settled and adjudicated in a decree on the chancery side of the circuit court of Chicot county, Arkansas, made at the April term of said court for 1860, which said decree was entered'in said court as a compromise of all the conflicting and various interests in said estate, in which cause the said Emma J. Wright and the said Joshua A. Craig and the said John A. Craig were parties, by agreement of all the parties then represented, and which said agreement covered and included the purchase by said Joshua W. Craig of the entire estate, for which he executed his own paper with John A. Craig as his security, part of which is the note sued on herein; and which said compromise included the entire transaction, which was to be completed by vesting the said estate in the said Joshua W. Craig, and of which said compromise the said notes and the said purchase formed a part; and the said decree of compromise was, by said court at a subsequent term, to wit, the-term for 1866, upon a bill of review therein filed by Joshua M. Craig and Robert E. Craig, as administrators of John A. Craig, deceased,' against the parties to said original bill, reviewed, reversed and set aside and held for naught, together with all rights thereunder, and now stands as the judgment of said court, in nowise canceled, annulled, or otherwise held for naught.”

To this answer, Sayre, the plaintiff in the court below demurred. The demurrer was overruled; he rested, permitted final judgment to be entered for defendant, and appealed to this court.

The answer was in the nature of a plea of total failure of consideration, for which the note sued on was given. Section 26 of the act of 24th of April, 1873, provides that, “ In the case of an assignment of a thing in action, the action by the assignee shall be without prejudice to any discount, setoff or defense now allowed; and when the assignment is not authorized by statute, the assignor must be a party as plaintiff or defendant. This section shall not apply to bills of exchange, nor to common orders or checks, nor promissory notes negotiable and assignable by the law merchant, but all such instruments shall be governed by the law and custom of merchants.” The effect of this act was to repeal the third section of the statute of assignments, Gfould’s Digest, ch. 15, p. 158, and to put bills of exchange, common orders or checks, and promissory notes, negotiable and assignable'by the law merchant, on the footing of mercantile paper in the hands of assignees, so that defenses that may be set up by the makers of such instruments, as against assignees, must be governed by the law merchant.

But the note in question in this suit was assigned before the passage of the act of the 24th of April, 1873, and the rights of the parties fixed, while the third section of the statute of assignments was in force, and the language of the act of the 24th of April, 1873, does not clearly indicate any intention of the legislature to give it a retroactive effect, and hence, this case must be determined by the statute in force when the note in question was assigned to the appellant. Cooley’s Const. Dim., p. 370. Section 3 of the statute of assignment provides that, “ Nothing contained in this act shall change the nature of the defense, or prevent the allowance of discounts or offsets, either in law or equity, that any defendant may have against the original assignor previous to the assignment, or against the plaintiff or assignee after the assignment.” Grould’s Dig., ch. 15, sec. 3.

It appears that the note in suit in this case was assigned to the appellant Sayre on the 1st of November, 1860, long before its maturity, and, as must be presumed in the absence of any showing to the contrary, in the course of trade.

At the time the note was assigned to Sayre, the defense set up in the plea did not exist against the original assignor or payee of the note. The original decree, under which the note was executed to Emma J. Wright, was rendered in April, 1860, and must be taken to have been a valid decree, and the note executed under it valid, in the absence of any allegations of the plea to the contrary, on the 1st of November, 1860, when the note was assigned to the appellant; and the decree was not set aside on the bill of review, according to the allegations of the plea, until 1866, which was long after the assignment to Sayre, and after the period when the note matured and should have been paid. In other words, the defense set up in the plea (the setting aside of the original decree on bill of review) arose after the assignment of the note to Sayre. Was this a good defense as between him and the makers of the note? We think not. The plea does not show that Sayre was made party to the bill of review, or that he had any opportunity of defending against the decree rendered upon it. After the execution and assignment of the note, the Craigs (or rather one of them and the administrator of the other), the makers of the note, procured the original decree, under which the note was executed, to be set aside, on bill of review filed by them, without making Sayre, the assignee and holder of the note, a party. As to him the decree was not valid; it did not prejudice the right acquired by him under the original decree when it was valid and in force. Trammell et al. v. Thurmand et al., 17 Ark., 203. Had the decree been set aside before the note was assigned to him, the defense would have been good, because then he would have been privy to Emma J. Wright, the original assignor and payee of the note, who was a party to the original decree as well as to the decree on the bill of review. Nor do the facts alleged in the plea show that the decree, on the bill of review, was a decree in rem, and binding on all persons, whether parties or not, as insisted by the counsel for appellees. To allow the defense set up by the plea would be a wider departure from the law merchant than warranted by the language of the third section of the statute of assignments.

The judgment of the court below must be reversed, and the cause remanded with instructions to the court to sustain the demurrer to the answer, etc.

Bennett J., being disqualified, did not sit in this case.


author: C. C. Farrelly, Sp. J.

text:
    Branch, Adm’x, vs. Horner, Adm’r, et al.
    Judgment Lien : When enforced in equity.

    Oates was seized of certain lands at the time and in the county where the judgment was rendered; he conveyed the lands and died before satisfaction of the judgment. On demurrer to bill against his administrator to enforce'the statutory judgment lien •.■Held, that a judgment creditor will not be permitted to invoke the assistance oí a court of chancery to enforce a legal right, unless he aver and show by his bill that he has exhausted all the remedies afforded him by the law, without satisfaction, or that owing to some equitable interest in the property attempted to be subjected to the satisfaction of the debt, or by reason of some fraudulent conveyance thereof, the legal remedies cannot be made available; 2d. That the remedy of the judgment creditor was through the probate court.
    APPEAL from Monroe Circuit Court.
    Hon. M. L. Stephenson, Circuit Judge.

      Hughes & Smith, for appellant.

      A. H. Garland, for appellees.
   C. C. Farrelly, Sp. J.

On the 15th day of November, 1869, the appellant recovered judgment in the Monroe circuit court against Oliver H. Oates. At the time of the rendition of the judgment, Oates was seized of certain lands situate in Monroe county, and set forth and described in the complaint. Two days after the judgment was rendered, Oates, in contemplation of marriage, conveyed to Mrs. Tappan, afterwards Mrs. Oates, one of the appellees herein, a portion of the lands mentioned in the complaint. Oates afterwards died, and the appellant brought her complaint in equity against the appellees, praying that the judgment might be revived against the appellee Horner, as the administrator of Oates, and, in default of payment, the land be subjected to her judgment lien and sold to satisfy her-judgment debt.

The appellee demurred to the complaint: 1. Because it does not appear that any valid judgment, enforcible at law, was rendered in favor of the plaintiff against the said O. EL Oates, in his life time; 2. Because it appears from the complaint, that the pretended judgment was rendered against the said O. H. Oates, in his lifetime; that the said O. EL Oates has since died, and, under tbe law, upon the death of the said O. EL Oates, the lien of said judgment, if there was any, was extinguished, and all the estate of the said O. EL Oates was then to be administered under the jurisdiction of the probate court; 8. Because the complaint is otherwise informal and insufficient.

The court sustained the demurrer as to the first, and overruled it as to the second cause assigned, and dismissed the complaint for want of equity. Both parties appealed.

Upon the case stated, and the ruling of the court below in dismissing the complaint generally, for want.of equity, we do not deem it necessary, as affecting the question presented by the record, to discuss or review the rulings of the court upon the two special causes of demurrer assigned, or to consider that view taken, in argument, by appellant’s counsel, insisting upon the validity of the original judgment, based upon the supposition, as it seems to us, that the court, in dismissing the complaint, was moved to do so by reason of the original judgment being void for uncertainty or other cause. It may be sufficient to say that the judgment was by consent, and entered in accordance with a written agreement filed by the parties, and appellees’ intestate, Oates, paid a portion of the same previous to his death. Assuming, then, the regularity and validity of the judgment, did the court err in dismissing the complaint for the want of equity ?

The authorities are numerous and of much weight, and it may be considered as well settled by the decisions of this court, that a judgment creditor will not be permitted to invoke the assistance of a court of chancery to enforce a legal right, ■unless he aver and show by his bill that he has exhausted all the remedies afforded him by the law, without satisfaction, or that owing to some equitable interest in the property attempted to be subjected to the satisfaction of the debt, or by reason of some fraudulent conveyance thereof, the legal remedies cannot be made available; “ As first, when a creditor has obtained judgment, issued an execution, and can collect nothing thereby, but has information of a debt or thing in action, or equitable right or interest, which ought to be subjected to the payment of the debt, but which the common law remedy cannot reach ; and secondly, when a creditor has a judgment or-execution that is a lien on property that is covered by a fraudulent conveyance, or by a mortgage or incumbrance, which the creditor will redeem or remove by payment.” See Apperson & Co. v. Ford et al., 23 Ark., 746, and cases cited.

The complaint in this case simply alleges the fact of the existence of the statutory judgment lien and the subsequent conveyance of a portion of the lands by the judgment debtor. There is no charge of fraud, no averment that there are not other judgment creditors of equal or prior standing, no allegation that the appellant is remediless at law, no showing that appellant ever attempted to collect her debt by process of law, or any reason assigned for not so doing, and, most assuredly, without some such averments or showing, the mere fact of the subsequent conveyance by the judgment debtor would not authorize the interposition of a court of equity to enforce her lien. The judgment lien of the appellant secured her against this conveyance, and against all and any subsequent incumbrances that might be placed upon the lands by the judgment debtor for the time prescribed by the statute.

But it is insisted, in argument, by the appellant’s counsel ^ that there is a marked difference between a judgment obtained against a debtor in his life time, and one obtained after his death against his administrator; that the former is a lien upon his lands, and the latter merely an ascertainment of the amount due; that it would be unjust and inequitable to compel a judgment creditor, having a lien, to seek his remedy under the administration law through the probate court, although his demand is placed in a preferred class of claims, as it would deprive him of his right of priority secured by the statute to the diligent creditor.

To this it may be answered that sec. 99, ch. 4, Gfould’s Digest, in classifying demands against the estate of a deceased person, places all judgments rendered against the deceased in his life time, which are liens on the lands of the deceased, if he died possessed of any, in the third or preferred class of claims; and by sec. 144, the executor or administrator, on order of the probate court, is required to pay the claims exhibited against the estate according to the classification made by the court; and by sec. 146, on failure of the executor or administrator to pay the claim ordered to be paid, on application made by the claimant to the clerk of the probate court, and proof of demand and failure to pay, the clerk is authorized to issue execution for the amount ordered to be paid, against the goods and chattels, lands and tenements of such executor or administrator; and by sec. 147, on the return of such execution unsatisfied, a scire facias may issue against the securities of the executor or administrator to show cause why judgment should not be rendered against them ; and by sec. 148, “such scire facias may be directed to any county of this state, and, upon the return thereof duly served, if good cause to the contrary be not shown, the court shall render judgment against such security for the amount of the claim ordered to be paid as aforesaid, and remaining unpaid, together with costs, and issue execution thereon.” And this court, in passing upon the jurisdiction of the probate court respecting the estates of deceased persons, and in copstruing our administration law and remarking upon its justice, wisdom and policy, has said: “ Our laws * * upon the happening of the death of an intestate or testator, at once invest our probate courts with at least a potential jurisdiction over the entire estate of the deceased which is put in actual exercise, if not before, at least upon the granting of letters testamentary or of administration. And the legal effect of this is to place, from that moment, the entire estate, real and personal, within the custody of the law, where it remains until disposed of under authority of that court, or until the purposes for which it was placed there have been fully subserved.” And citing from Outlaw v. Yell, 5 Ark., 468, that the probate courtis manifestly by the constitution, the forum where the amount of assets and the order in which they are to be appropriated by law for disbursement, is to be fixed and ascertained; ” and from Ryan et al. v. Lemon, Adm’r, 2 Eng., 78, that “ if the party adopts the common law form of action and proceeds in the circuit court for the recovery of a claim against an estate, he will of course be subjected to such qualifications of his remedy as may have been imposed by legislative enactment.” Adamson et al. v. Cummins, Adm’r, 10 Ark., 550. See also Horner v. Hanks, 22 Ark., 584.

From the authorities first above cited, the provisions of the statute referred to, and the construction given our administration law by this court, we may readily conclude, 1. That the complaint contains no such allegations or averments as would authorize the interposition of a court of chancery to enforce the appellant’s judgment lien; and 2. That the distinction attempted to be drawn between a judgment obtained against a man in his life time, and one against his administrator after his death, so far as in this case it affects'the jurisdiction of the probate court in the matter of the estates of deceased persons, cannot be maintained ; and further, that the appellant had an ample and complete remedy through the probate court to collect her debt, had she chosen to do so.

The decree of the court below is affirmed.

Hon. M. L. Stephenson, being disqualified, did not sit in this case.


author: Searle, J.

text:
    State vs. Richardson et al.
    ' Bail Bonds : What necessary to validity of.; etc.

    The record should show that the bond was filed in court, that it was taken by an officer authorized to take and approve bail bonds, and that the defendant was discharged upon execution of the bond; but these facts will be presumed on demurrer, and can only be put in issue by answer.
    APPEAL from Desha Circuit Court.
    Hon. J. P. Clayton, Special Circuit Judge.

      T. D. W. Yonley, Attorney General, for appellants.

      Pindalls, for appellees.
   Searle, J.

The record before us in this case discloses the following facts: At the spring term, 1872, of the Desha circuit court, one Abner was indicted for murder. The cause being continued to the fall term, 1872, Abner, with the appellees as his securities, entered into a bond of five hundred dollars, as required by the court, for his appearance, etc., at said term. Failing to appear according to the conditions of the bond, the same was forfeited, and summons issued for the securities, etc. At the following term they made their appearance, and demurred to the bond and proceedings had thereon, specifying several grounds of objection thereto, as follows:

1. That the bond, and proceedings thereon had, do not state facts sufficient to constitute a cause of action.

2. That the bond of Abner does not sufficiently appear to have been filed in this court.

3. That the bond was not taken by an officer authorized by law to take and approve a bail bond.

The demurrer was sustained, and the state, standing thereon, appealed.

The only grounds of objection which a demurrer to the complaint in civil actions will reach are specified in sec. Ill, Civil Code of Practice.

The demurrer in this case does not specify that the court below had no jurisdiction of the person of the defendant, or the subject of the action, or that the plaintiff had not legal capacity to sue, or that there is another action pending between the same parties for the same cause, or that there was a defect of parties, etc. The demurrer, therefore, only goes to the legal sufficiency of the bail bond and the proceedings had thereon. See secs. 111 and 112, Civil Code.

Upon a careful examination of the record before us, we find that Abner was in custody upon a charge of murder; that the court ordered him to be discharged upon his giving bond in the sum of five hundred dollars; that he gave bond in said amount in strict pursuance of sec. 77, Crim. Code, with the appellees herein as securities; that at the next term he was called and failed to make his appearance in accordance with the conditions of the bond; that the securities were likewise called to bring their principal into court, which they failed to do, and that thereupon the bail.bond was forfeited as required by sec. 88, Crim. Code. But it does not appear from the record that the bond was filed in the circuit court, that it was taken by an officer authorized by law to take and approve bail bonds, and that the defendant Abner was, upon the execution of the bond, discharged from custody.

As to the first of the above mentioned omissions, we think that it was formal, and was cured by sec. 80 of the Orim. Code. The other omissions cannot be disposed of in this way. It is necessary to the validity of a bail bond that it be taken by an officer authorized by law to take bail, and the discharge of the defendant upon the execution of the bond is also necessary, for that is the consideration thereof. But when these facts do not appear upon the record, they will be presumed, and the record without them will be good upon demurrer. If the appellees desired to place these in issue, they should have done so by answering. The court below' therefore erred in sustaining the demurrer, and for this error the judgment must be reversed, and the cause remanded for further proceedings in accordance with law, and not inconsistent with this opinion.


text:
    Rumbough vs. Berry, Auditor.
    Auditor : When cannot draw warrant.

    Where an appropriation made by the legislature for a specific purpose bas been exhausted, the auditor cannot draw his warrant in payment of the same.
    PETITION for Mandamus.

      Wiltshire & Goblentz and Pomeroy, for petitioner.

      J. R Montgomery, Attorney General, for defendant.
   Gregg, J.

On the 3d of June, 1871, Bumbough filed his petition in this court against James B. Berry, as auditor of the state, and alleged that upon proper application under the statute being made, the commissioner of public works appointed him to make surveys and estimates of the amount and kind of certain work, to determine the utility, etc., of making or repairing levees, ditches, etc.; that under such appointment and the order of said commissioner, he, for the state and for the use of said commissioner, made such surveys and estimates, which services so rendered, are worth two hundred and sixteen dollars and fifty cents ; that his account for said services was made, and, by said commissioner certified to be correct; that he presented said account so certified, for the sum aforesaid, to the auditor of state and demanded a warrant on the treasurer for the payment thereof, but the auditor refused to issue such warrant. And he prayed the court for a writ of mandamus to compel the auditor to issue such warrant, etc.

The auditor demurred to the petition; his demurrer was overruled. He then answered that there was no law requiring him to draw such warrant; that there was no appropriation out of which the petitioner’s claim could be paid; that the sum of $5,000 appropriated under section 13, act of March 23, 1871, to carry into effect the provisions of “ an act to amend an act, entitled an act providing for the building and repairing of the .public levees of this state,” was exhausted, and nothing remained out of which to pay claims, etc. Upon which petition and answer the cause has been submitted.

Sec. 3 of said act authorizes the commissioner of public works to employ an engineer to make the necessary surveys and estimates as required by the act, and upon the certificate of the commissioner, he is to be paid in the same manner as state officers are paid ; and the amount so paid is to be levied upon and collected from the various counties interested as provided for in the act.

Is there an appropriation by law to pay for such services over the $5,000 alleged to be consumed? The clause referred to, that the engineer shall be paid upon a certificate, etc., shall be paid in the same manner as state officers, is not an appropriation of money, but a mode of paying out what may have been set apart for such purposes. And, fortunately, we think, our constitution has thrown a safeguard around the treasury against the payment of indefinite and unascertained amounts that might be claimed and certified to as correct by the executive or other state officers in the administration of the affairs of the state.

Sec. 20, art. V, provides that, “No portion of the public funds or property shall be appropriated by any resolution. No appropriation shall be made except by a bill duly passed for that purpose.” And sec. 8 of art. X provides that “No money shall be paid out of the treasury until the same shall have been appropriated by law.”

Under these clauses the auditor, could not draw his warrant unless there was an appropriation made by law to pay such claim, and to say that an engineer shall be paid in the same manner as state officers are paid is no setting apart money to pay him; it only authorizes him to draw pay in the same manner, when money has been appropriated for such purpose.

Sec. 18 of the act referred to appropriates five thousand dollars to carry into effect the provisions of the act. There is no specified sum allowed for surveying and making estimates, and if this five thousand dollars is not a limit of the amounts allowed to be drawn under the act, there is no limit and the treasury would be open to an unlimited extent, regulated by nothing higher than the discretion of an executive officer. "We cannot hold that the legislature so intended. If the sum appropriated is not as much as the commissioner desires to have expended, he must look to the legislature, for they alone can decide what sum shall be used for such purpose, and the courts cannot extend relief to one who has rendered such service, when there is no money remaining out of any legislative appropriation to satisfy such demand.

The writ is denied.