Independence County v. Independence County Bridge District No. 1 , 187 Ark. 140 ( 1933 )

In my opinion, the judgment is void on every ground stated by counsel for appellant, and I respectfully dissent.

In the first place, the judgment was not final but was contingent upon an event which might never happen. That it has happened does not render the judgment valid, for that must be determined from the language of the judgment itself. It is for no definite amount but for a yearly fixed sum for an indefinite and uncertain period: "It is therefore ordered, etc., * * * that said appropriation be, and the same is hereby, made perpetual."

Judgments must be certain. Their validity and binding force must rest upon facts existing at the time of their rendition. They take their validity from the action of the courts, and not from what persons may or may not do after the court has rendered such judgments. Consolidated, etc., Co. v. Huff, 62 Kan. 405; Puette v. Mull,175 N.C. 535; Johnson v. Carver, 175 Pa. 200.

The following statement is made in the majority opinion: "It is true that the order or contract does not specify the number of payments to be made, but it is clear that such annual payments are to continue during the life of the bonds and no longer. The final payment of the county is necessarily restricted to the final payment of the bonds." In order to find warrant for this statement, the court must go beyond the language of the judgment and indulge in surmise and speculation. This, I submit, is an improper way to interpret the language of a judgment or to test its validity. Continuing, the court says: "It is not to be supposed, as suggested, that the bridge commissioners would unduly extend the payment of the bonds in order to continue indefinitely the county's contribution to the enterprise. It is common business knowledge that in order to float a large bond issue the payment thereof must be within a reasonable time." It is, perhaps, true that the bridge commissioners would not intentionally extend the payment of the bonds, and that the maturities of the bonds will fall due within a reasonable time, but it does not follow by any means that the payment will not be unduly extended beyond the maturity, and may be for a long time thereafter, from causes arising which could not have been reasonably foreseen or prevented. It is also "common business knowledge," which has been sharpened and made alert by recent events, that bonds which were expected to be paid at a certain time may, unhappily, never be paid or their payment extended to a far distant day. Therefore, if the judgment means what it says, it is entirely possible that the $5,000 per annum payment may be indeed perpetual. I repeat that the order appears to me to violate the first requisite of a valid judgment; that it must be certain in the amount which must be paid.

The special road fund named in the judgment was a gift from the State to the county, and the former had the right to, and did, prescribe and limit its use. That prescription and limitation is clear and explicit. The controlling law at the time the county court rendered its judgment is to be found in 21 of act No. 5 of the Extraordinary Session of 1923, and thus speaks: "The funds thus paid into the county highway improvement fund shall be by the county court expended upon the public highways of said county, and it shall be the duty of the county court to fairly and equitably apportion the funds so paid into the county highway improvement fund at the option of the court among the various road districts and road improvement districts or road districts only in said county for the purpose of constructing and maintaining the road, whether hard surface or earth road, and such apportionment shall be made by the county court after taking in consideration the relative importance of the roads of the county."

In the cases of Stanfield v. Kincannon, 185 Ark. 120,46 S.W.2d 22, and Anderson v. American Bank Trust Co., 178 Ark. 652, 11 S.W.2d 444, we held that the fund received from the State by the county, called the "turnback fund," is not county revenue, but State revenue; and in Hastings v. Pfeiffer, 184 Ark. 952,43 S.W.2d 1073, we held that it is immaterial by what name the fund is called where it is shown that it was received from the State to be applied to a specific purpose. In all of the acts dealing with State aid to the counties for the improvement of highways, prior to act 63 of the Acts of 1931, State aid was limited to the improvement of county roads. In the last-named act, which is not retroactive and therefore cannot affect previous orders made with respect to the turnback fund, the power is given county courts to expend a part of the fund for the payment of bridges built by bridge districts, the amount to be paid the bridge districts to be determined by the county court or judge thereof. That act, however, as we have seen, relates only to the disposition of the turnback fund from and after the passage of that act.

We have held that county bridges were a necessary and integral part of the road which crossed them and expenses therefor were to be considered as expenses incurred on county roads; but it is a far cry from a county bridge to a bridge such as the one involved in the instant case. This is a bridge one and a half miles long erected at a cost of $600,000 across one of the principal rivers of the State and as a part of one of its main highways, and to say, as does the court, that "the provisions above (referring to the acts of the Legislature) are broad enough to include building and maintaining bridges which are necessary parts of the highways" is to totally ignore the character of the bridge under consideration which, in no sense, is a county bridge and the expenditure from the turnback fund thereon was wholly unauthorized.

The court says: "Lastly, it is argued that the contract or order was void because contrary to public policy. The record does not reflect that any injuries resulted from the contract." On this point the facts are undisputed that the county has 900 miles of unsurfaced roads to maintain, and that there would be left from the turnback fund after the $5,000 appropriation demanded is paid a little in excess of $6,000 which, with the three-mill county road tax, will be totally inadequate to maintain the roads of the county. It seems to me that much injury will result. It is to be presumed that the vast majority of the county's population resides on or near the county roads, and, if these become impassable, as it is the opinion of the county officers they will, but little good will result to the people from the magnificent bridge and the State's highway and the enforcement of the order of the county court will, in the end, prove disastrous to the county.

It is my opinion that the judgment of the circuit court should be reversed, and the order of the county court declared void.

Mr. Justice SMITH concurs in the view here expressed.