524 MONROE COUNTY V. BROWN. [118 MONROE COUNTY V. BROWN. Opinion delivered May 17, 1915. 1. COUNTY COURT — ALLOWANCE OF CLAIMS — JUDGMENT — COLLATERAL ATTACK. —A county court, in the allowance of claims against the county, acts judicially and its judgments are not open to collateral' attack except for fraud or lack of jurisdiction. 2. COUNTY COURT — WARRANTS— FRAUD— SUBSEQUENT REJECTION.—Under the statute authorizing the county court to call in all outstanding warrants, and to reject tnose fraudulently or illegally issued, those warrants may be rejected, which could not have been valid claims against the county, or where the judgment of allowance was obtained by fraud practiced. 3. Corns= COURT — ALLOWANCE OF CLAIM — EXCESSIVE AMOUNT.—The mere fact that the county court has erroneously allowed a claim far an excessive amount, does not call'for Teinvestigation and review in sitbsequent proceedings under the statute, but if fraud has been practiced in the allowance itself, the claim is an illegal one.and the judgment may be inquired into and set aside. 4. COUNTY COURT — ALLOWANCE OF CLAIMS — COLLUSION.— Where there has been collusion between a claimant and the county judge, for the purpose of having the amount of a claim illegally augmented, this constitutes fraud on the county, which the court is authorized to correct in a subsequent proceeding by setting aside the judgment. 6. COUNTY COURT — ALLOWANCE OF CLAIM — FRAUD — NEW WARRANTS.— Where claims have been alllowed against a county, fraudulently, for an excessive amount, and the judgment making such allowance has later been corrected, on appeal, the circuit court, after determining that the original judgment of allowance should be set aside for fraud, may render a judgment allowing the correct amount due the original claimants, and direct that new warrants be issued for such amounts. 6. ROAD DISTRICTS — APPROPRTATION — CONTRACTS. — Under Act of 1905, 9. 226, contracts for road purposes are limited to the estimated amount of funds to be raised by the tax, and any contract in excess of the amount appropriated and to be collected, is void. In a
ARK.] MONROE COUNTY V. BROWN. 525 • special case, 'before a contract will be declared void it must be shown that the contract was made ' after the appropriation was exhausted. 7. ROAD DISTRICTS—CONTRACTS—ASSESSMENTS — VALIDITY OF ACT.—Acts 1905, p. 226, limiting the contract-making power of a road improve:. ment district is not in conflict with Amendment No. 5, authorizing a special levy for road purposes. Appeal from Monroe Circuit Court; Eugene LO4h= ford, Judge; affirmed. Morning, Emerson & Morris and C. F. Greenlee, for appellant. 1. Demands against a county must be Verified ac, cording to law. Kirby's Dig., . § § 988, 1453;- 1179. County courts are expressly prohibited from ialleWing any greater sum than is actually due in nioney. 47 Ark 80; 44 Id. 437; 31 Id. 552. On appeal the circuit ,eourt oan only render such judgment •as the county court should have rendered. 90 Ark. 195; 52 Id. 502: The affidavit is a prereqUisite to the allowance of the Claim. A county court when passing on the question of reissue or cancellation of a warrant can not enter into a • trial of the questions which should have been tried when the claim was presented, and hear neW testimony, Mit it nnist cancel the warrant if illegally issued, and the circuit court, on ' appeal, can only order the warrant cancelled. 2. On appeal, the circuit court had no authority to try the merits of the claims. 52 Ark. 502. Me case of 84 Ark. 249, does not apply here. 3. 'The road warrants were issued in excess of the amount appropriated and collected. Kirby's Dig., 7288. There can be no inniocent purchaser of • County warrants. 98 Ark. 229; 103 IT. S. 74. • Thomas & Lee, for appellees. . 1. The county court is clothed with authority,,to' go into all the evidences of indebtedness, and if &legal demand or claim is shown, it is its duty to reissuethe warrant. Kirby's Dig., § §. 1179, •1375. It , has original exclusive jurisdiction to; settle all, demands. agAinst the
526 MONROE COUNTY V. BROWN. [118 county. 47 Ark. 80; 44 Id. 225. The court acts in its administrative capacity for the county as do the council of a city or the Legislature for the State, and is clothed with discretion in the performance of its duties. 107 Ark. 301. 2. Warrants issued for more than the amount due are void . only as to the excess. 4 Dillon, 209; 2 Id. 493; 4 N. D. 339. 3. An affidavit verifying a claim is not jurisdictional, but the 'affidavit may be made on appeal, in the circuit court. Kirby's Dig., § 7288 ; 84 Ark. 331; Kir-by's Dig., § 3517. On appeal the matter is tried de novo and amendments may be made that do not change the original oause of action. 61 Ark. 253; 55 Id. 282. Settlement of claims and issuing warrants have not the force of judicial judgments, which conclude the party or county. So the holder of a warrant is entitled to a reissue for at least the amount actually due him. 19 Ia. 117, 248; 6 Kans. 510; 11 Minn. 31 ; 19 Wall. 468; 4 Dillon, 209. 4. The road tax had been voted and the appropriation for roads duly made. Kirby's Dig., § § 7288; Amend. No. 5. The ' contract may exceed the appropriation. 73 Ark. 526; 54 Id. 645; 61 Id. 74; 63 Id. 397. 5. The 'services were rendered and the warrants transferred to appellees for value who became the equitable assignees of the claim, or, at least, of the proportionate share actually and legally due. The judgment is right and should 'be 'affirmed. MCCULLOCH, C. J . This appeal is in a case where the county court of Monroe County called in the county warrants for reissnance or cancellation pursuant to the terms of a statute which provides that the county court of any county may "call in the outstanding warrants of said county in order to redeem, cancel, reissue or classify the same, OT for any lawful purpose whatever" and shall make an order fixing the time for the presentation of said warrants, etc. Kirby's Digest, section 1175. The three appellees, L. K. Brown, R N. Counts, and the Bank of Clarendon, are the separate holders of certain
ARK.] MONROE COUNTY v. BROWN. 527 warrants, and the county court, on presentation thereof, ordered the same cancelled On the ground that they were based on illegal ' allowances. Appellees took an appeal to the circuit court and on the trial there the court found that the original 'allowances were for excessive amounts and cancelled the warrants, but ordered reissuance for the amounts found to be actually due to the original claimants, appellees being merely purchasers and holders of the warrants. The warrants 'held by 'appellee Brown were based upon allowances to laborers under 'contract for working the public roads, the warrants being drawn on the road tax fund collected pursuant to Amendment No. 5 of the Constitution which authorizes a special fund to be raised for road purposes when voted by the electors of the ' county. The affidavit attached to each lof the allowances involved in the controversy concerning the warrants held by 'appellee Brown were made by the road overseer and not by the claimants themselves, and the contention is that the allowances were void because of the failure to comply with the statute which requires all claimants to verify their claims by affidavit. The circuit court allowed the 'affidavits to be filed in accordance with the statute and then directed the reissuance of the warrants. The warrant held by ' appellee Counts was also a warrant drawn on the road fund and was based upon an al:- lowance made to a laborer, and, as in the Brown case, the affidavit was made by the overseer and not by the claimant. It appears also that pursuant to an understanding between the county judge and the road overseer the account was increased from $6 to $8 on acicount of the discount in value of the warrants, the account of the treasurer being at that time overdrawn. The circuit court 'allowed a new affidavit I to be filed by the original claimant, the same as in the Brown case, but ordered re-issuance of the warrant only to the extent of the sum of $6, which was the 'correct amount of the original claim before it was increased. The Bank of Clarendon case involves warrants which were issued, based upon allowances to the county made
528 MONROE .COUNTIC V. BROWN. [118 upon a claim presented by the electric light company for lights furnished-the county and for telephone charges. Those warrants were issued on the general fund of the 'county, and as county scrip was depreciated in value to the extent.that it was only worth about 33 1/3 cents on the dollar the amount of the 'account was, by express understanding between the claimant and the county judge, increased three-fold, and that part of the . statutory affidavit -which declares that "the bill was not enlarged, enhanced or otherwise made greater in consequence of an estimated, supposed or real depreciation in the value of county warrants" was erased from the printed blank and omitted. The circuit court (cancelled the warrant, but ordered a reissue for the amount actually due the original claimant, that is to say one-third of the amount of the account, thus 'striking out the increase incorporated in the claim on accoimt of the depreciated value of county warrants. (1) This court has in its decisions steadily adhered to the rule that a county court, in the allowance of claims against the county, acts judicially, and that its jud ments are not open to collateral attack except for fraud or lack of jurisdiction. Jefferson County v. Hudson, 22 Ark. 595; State, Use Izard County v. Hinkle, 37 Ark. 532; Cope v. Collins, Admr., 37 Ark. 649; Lincoln County v. Simmons, 39 Ark. 485. In State, Use Izard County v. Hinkle, supra, Chief Justice English, speaking for the court, laid down the following ai the true interpretation of the force and effect of the judgments of county courts and the method's in which they may (be attacked: "An order of allowance, made by the county court, may be reviewed or opened in several modes : First. By appeal to the circuit court. Second. It may be quashed on certiorari by the circuit court; where it appears from the face of the record that the claim was not, by law, a charge against the county, and the court had no authority or discretion to allow it upon any evidence that might have been introduced. * * * Third. The statute empowers the county courts as often as once in three years, to call in all outstanding
ARK.] MONROE COUNTY V. BROWN. 529 warrants, to examine and cause them to he renewed, if legally issued, and, if not, to reject them. Thus the Legislature has empowered county courts to review allowances made at previous terms, and, if made without authority of law, to reject warrants issued upon them, and (also to reject warrants otherwise illegally or fraudulently issued, as held in Desha Cow y tty v. Newman, supra. Fourth. An order of allowance may be opened in chancery, as any other judgment, for fraud, accident or mistake, on a proper case made." In the case of Desha County v. Newnwa, 33 Ark. 788, the opinion was also written by Chief Justice English, and it was cited with approval in the Hinkle case, supra. That was a case, like this, 'where the county court called in the warrants for cancellation or reissuance, and involved the question of the power of the county court in that proceeding to cancel a warrant based upon allow-•nce for a printing account presented against the county. In discussing the effect of the statute and the power given to the comity court thereunder, this court said : "The statute empowers the county courts as often as once in three years to call in all outstanding warrants, to examine and cause them to be renewed if legally issued, and if not to reject them. * * * Thus the Legislature has empowered county courts to review allowances made at previous terms, and if made without 'authority of law, to reject warrants issued upon theni, and also to reject warrants 'otherwise illegally or fraudulently issued. Warrant holders take them subject to the exercise of such power by the county courts, the statute conferring the power being the law of the contracts. (Citing Parsel v. Barnes & Bro., 27 Ark. 261). The allowances in favor of appellee for magistrates' blanks are not attacked collaterally, but in a direct proceeding to review them ' authorized by statute." (2) The effect of our previous decisions, therefore, is to hold that a proceeding of this kind by the county court reviewing its orders of allowance rendered at former terms, does not constitute a collateral attack upon these judgments, but that it is a direct attack. The stat-
530 MONROE COUNTY V. BROWN. [118 ute empowers the county court to reject warrants illegally or fraudulently issued, and this necessarily gives the power to determine what warrants fall within that class. The statute is not construed to mean that the county court is authorized to review former judgments of the court for mere errors in the allowance of claims, but they are authorized to reject claints which have been illegally or fraudulently issued. In other words, where 'the claim against the county was one which, under any evidence which might have been ' adduced, could not have been a valid claim against the 'county, or where the judgment of 'allowance was obtained by fraud, it may be set aside and warrants issued pursuant thereto cancelled. However, to carry the review beyond that and to permit investigations for mere errors of the court, would make it purely a collateral attack on the judgment, which is not authorized by the statute. This distinction is illustrated by our two decisions in State v. Perkins, 101 Ark. 358, and Fuller v. State, for use of Craighead County, 112 Ark. 91. In the former case we held that there could be no review of a judgment of the county court adjusting the settlement of a collector merely because there had 'been an error discovered in the amount of commissionrs allowed ; but in the last cited case we held that there could be a review where the court allowed commissions which were wholly unauthorized by the statute, as such an 'allowance constituted fraud in law. (3-4) The case of Desha County v. Newman, supra, is illustrative of the scope and effect of the authority conferred upon the county court .by the 'statute ' authorizing 'the 'calling in of warrants. That case involved a claim for printing , and there was no 'statute which authorized the 'allowance Of. such claim, and it was held that the judgment was wholly void because the claim was legal and one which should not have been allowed under any evidence which might have been introduced. The mere fact, however, that a claim has been 'erroneously allowed for an excessive am•unt does not call for rein-vestigation and review in subsequent proceedings under
ARK.] MONROE COUNTY V. BROWN. 531 the statute. If however, fraud has been practiced in the allowance itself, the claim is-an illegal one and the judgment may be inquired into and set aside. Where there has been collusion between a claimant and the county judge; for the purpose of having the amount of the claith illegally augmented, •this constitutes a fraud on the county which the court is authorized to correct in a subsequent proceeding by setting aside the judgment. (5) It is thus readily seen that the warrants involved in the Counts case, and those also involved in the Bank of Clarendon case, fall within the rule just stated, and the county court had the power to set aside the allowances because the collusion between the claimant and the county judge 'amounted to fraud which avoided the judgments of allowance. In each of the cases, the circuit court, as has already been shown, directed new warrants to be issued for the amount actually due by the county to the original 'claimant, and that is the feature of the order from which the county has appealed. It is insisted that if the original allowances were void, neither the county court nor the circuit court on 'appeal had any authority to order a reissue of the warrants for any part of the amount claimed. We are of the opinion, however, that that would not be the just rule to apply in a case of this character. The ' statute manifestly was enacted for the purpose of protecting the county against fraudulent or illegal allowances and to 'authorize the county court to set aside former judgments purely for the purpose of protecting the 'county. The object of -the statute is fully attained when the county is protected from the wrongful allowances, and the original judgment of allowance can 'only be ' set aside to the extent of - its wrongful effect. In other words, when the allowance is purged of its illegality and fraud, the ' application of plain principles of equity and justice 'demands that the judgments of allowance shall stand for the amount to which the original claimant was entitled. That principle is read into any 'Statute which authorizes the 'setting aside Of judgments unlawfully obtained, for, after all, it is only the unlawful part of a judgment which falls within
532 MONROE COUNTY V. BROWN. [118 the purview of the statute. This view is expressed by Judge Dillon in the case of Shirk v. Pulaski County, 4 . Dillon, 209. That was a suit on Warrants, land not a proceeding for calling in the warrants, and it was held there that the warrants were absolutely void ' because they were allowed fraudulently, but that the holder of the warrants would be treated as the equitable assignee of so much of the original claim as was legal and that a judgment would be rendered for that amount. We •onclude therefore that the circuit court was correct in ascertaining, after determining that the original judgment of allowance sfhouid be set :aside for the reasons stated, the correct amount due the original claimants and directing new warrants for such amounts. (6-7) It is also contended by counsel for appellant that the road warrants held by appellees Brown and Counts should not have been reissued for the reason that the amount of the collection and appropriation of road tax had been exhausted. There was a special statute in force in Monroe County concerning the method of working the public roads and making ' contracts with reference thereto, and collecting and disbursing the road funds. See Acts of 1905, p. 226. Sedion 4 of the ad reads as follows : "No contract shall be made by the county judge or county court for the building . of bridges or repairing of same or for working the roads, until after the 'county court has levied the taxes for roads and bridges under this act for the ensuing year, and then not until an estimate shall be made of the amount of Money that will be raised by such levy and collection for roads and bridges within twelve months of the date of the levy ; and all contracts made and to :be made within ' one year from date of the levy of taxes shall be in amount not to exceed the estimated levy:" This statute is not in ' conflict with AmendMent No. 5, 'authorizing the special levy for road purposes, and this case, 1011 account of. the special features of the act applying in Monroe County, does not call for a construction of Amendment No. 5, nor of the general statutes of the State with reference to expenditure of money raised pursuant . t6 that provision. • It is clear,
. ARK.] 533 however, from a consideration of the language of the special statute quoted above, that it was intended to limit contraets for road purposes to the estimated amount of funds to be liaised by the tax, and that any 'contract in excess. of the amount appropriated, 'and to be collected, is void. Now, it is shown in the-present ease that the total mount of Toad warrants exceeded the amount of the appropriation and the amount actually eollected for the years named, but it does not appear that the contracts upon which the warrants held by the 'appellees were based, exceeded the estimate or appropriation. It shows that the total amount of warrants did in fact exceed the estimate, but these warrants may have been based upon contracts made before the appropriation was exhausted. There is therefore not enough in the 'present record to show that the ' allowances were void for the reason that • the appropriation and collections were exceeded. The county court in this proceeding has the right to ascertain whether or not the ' contracts embraced in the original claims were made before or after the appropriation of the road tax was exhausted, and if made afterwards to declare the allowance void, for' in that ease the county court was without power to wake the allowance and the judgMent could be set aside in a subsequent proceeding calling in the warrants. We find no error in either of the judgments involved in this appeal so the same are affirmed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.