Newton v. Altheimer , 170 Ark. 366 ( 1926 )

These proceedings, brought here by separate appeals, were instituted in the circuit court of Pulaski County by the commissioners of certain road improvement districts to compel the county court, by peremptory mandamus, to apportion to each of said districts its alleged share of road funds as prescribed by special statute enacted by the General Assembly of 1923. Special Acts 1923, p. 370. The cases have been consolidated here for hearing and decision. One of the cases (Newton v. Altheimer) was formerly here on appeal under the style of Moyer v. Altheimer, and the judgment of the circuit court awarding the writ of mandamus against the county court was affirmed, and the questions of law involved in the attack upon the validity of the statute under consideration were settled in the opinion. 168 Ark. 271. When the mandate of affirmance was filed in the circuit court, there had been a change in the office of county judge by the regular succession of Judge Newton to the office, and he refused to comply with the judgment on the ground that he was not bound by a judgment rendered while Judge Moyer was in office. Proceedings were instituted by the original petitioners to compel compliance with the judgment, and the circuit court rendered its judgment compelling such compliance. The county judge has prosecuted an appeal to this court.

The commissioners of three other districts of like character filed proceedings in the circuit court seeking the same relief as in the first case. These three proceedings were consolidated in the circuit court, and on final hearing the court rendered judgment granting the relief prayed for. An appeal in each case has been duly prosecuted by the county judge.

In the first case it is contended by counsel for appellant that the present county judge is not bound by the judgment for the reason that mandamus is a personal remedy, and that the action abates upon the expiration of the term of office of the incumbent. Counsel cite numerous decisions of the Supreme Court of the United States to the effect that mandamus against an executive or ministerial officer to compel performance of an official duty is personal and abates on the expiration of his term. All of the cases cited decide as contended. For instance, in the recent case of Gorham Mfg. Co. v. Wendell,261 U.S. 1, the court said: "A suit to enjoin a public officer from enforcing a statute or to compel him to act by mandamus is personal, and, in the absence of statutory provision for continuing it against his successor, abates upon his death or retirement from office."

But counsel seem to overlook the important distinction recognized in nearly all of the cases cited, as well as many others, that where the relief is sought against a corporation or municipality or other continuing official board, the action does not abate upon a change in the personnel of the office or offices, but continues, and the successors in office are bound by the judgment. In 18 Rawle C. L. p. 338, the doctrine, supported with practical unanimity of authority, is stated as follows:

"Irrespective of the question whether a mandamus against a public official abates on his death, removal, or retirement from office, the courts very generally agree in distinguishing between applications for a mandamus against the head of a department or bureau for a personal delinquency, and those against a continuing municipal board with a continuing duty, where the delinquency is that of the board in its corporate capacity, the rule being that, if the action is brought against a continuing municipal board, it does not abate by a change of personnel. Thus, in the case of an application against a board of county commissioners and its individual members to compel them to levy a tax to pay a judgment, the action will lie, although the terms of the members have expired, as in such cases the corporation cannot die or retire from the office it holds. A change in the personnel of the loan commission of a State or Territory created for the express purpose of liquidating and providing for the payment of its outstanding indebtedness does not, it has been held, abate a proceeding against the members of such commission, in their official capacity, to compel by mandamus the issue of refunding bonds, where such board was, by the facts creating it, made a continuing body with corporate succession, although it was not made a corporation by name."

The last sentence in the above text was supported by the decision of the Supreme Court of the United States in Murphy v. Utter, 186 U.S. 95.

The case of Commissioners v. Sellew, 99 U.S. 624, was an action against the commissioners of a county in the state of Kansas to compel them to levy taxes, and in disposing of the case the court said:

"Here the writ is sent against the board of county commissioners, a corporation created and organized for the express purpose of performing the duty, among others, which the relator seeks to have enforced. The alternative writ was directed both to the board in its corporate capacity and to the individual members by name, but the peremptory writ was ordered against the corporation alone. As the corporation can only act through its agents, the courts will operate upon the agents through the corporation. When a copy of the writ which has been ordered is served upon the clerk of the board, it will be served on the corporation, and be equivalent to a command that the persons who may be members of the board shall do what is required. If the members fail to obey, those guilty of disobedience may, if necessary, be punished for the contempt. Although the command is in form to the board, it may be enforced against those through whom alone it can be obeyed. We think therefore that the peremptory writ was properly directed to the board in its corporate capacity. In this way the power of the writ is retained until the thing is done which is commanded, and it may at all times be enforced, through those who are for the time being charged with the obligation of acting for the corporation. If, in the course of the proceedings, it appears that a part of the members have done all they could to obey the writ, the court will take care that only those who are actually guilty of disobedience are made to suffer for the wrong that is done. Those who are members of the board at the time when the board is required to act will be the parties to whom the court will look for the performance of what is demanded. As the corporation cannot die or retire from the office it holds, the writ cannot abate as it did in Boutwell's case."

The case of Thompson v. United States, 103 U.S. 480, was one similar to the Sellew case, supra, and the Supreme Court of the United States, speaking through Mr. Justice Bradley, said:

"But we cannot accede to the proposition that proceedings in mandamus abate by the expiration of the term of office of the defendant where, as in this case, there is a continuing duty irrespective of the incumbent, and the proceeding is undertaken to enforce an obligation of the corporation or municipality to which the office is attached. * * * We have had before us many cases in which the writ has, without objection, been directed to the corporation itself, instead of the officers individually; and yet, in case of disobedience to the peremptory mandamus, there is no doubt that the officers by whose delinquency it was incurred would have been liable to attachment for contempt. The proceedings may be commenced with one set of officers and terminated with another, the latter being bound by the judgment. * * * If the resignation of the officer should involve an abatement, we would always have the unseemly spectacle of constant resignations and reappointments to avoid the effect of the suit. Where the proceeding is in substance, as it is here, a proceeding against the corporation itself, there is no sense or reason in allowing it to abate by the change of individuals in the office."

See also, as in recognition of this doctrine the following cases: Warner Valley Stock Co. v. Smith.165 U.S. 28; Bernadine v. Butterworth, 169 U.S. 600; Richardson v. McChesney, 218 U.S. 487; Irwin v. Wright,258 U.S. 219; Gorham Mfg. Co. v. Wendell, supra.

This suit is against the county court, not against the judge of the court to compel action on his part, though he is compelled by the writ to act for the court over which he presides. The distinction lies in the fact that the action or refusal of a ministerial officer is personal and not attributable to his successor, but the action or refusal of a county judge to act through the machinery of the court over which he presides is controlled by the writ because it is, in effect, a compulsion applied to the court as a continuing body.

It follows from what we have said that the present county judge is bound by the judgment of the circuit court which was affirmed here, and he can be compelled through attachment and contempt proceedings to perform the duty enjoined upon him by the writ of mandamus that is to say, to act for the court over which he presides, in making the distribution of funds. The decision of this court on the former appeal became the law of the case, and we are bound by it on the present appeal. We decided that the statute involved in the controversy was valid, and that the road district was legally formed and was entitled to the funds as prescribed in the statute. That is all that was involved in the controversy, and the former decision is res judicata. The defendant in the action was bound to take advantage of every available defense, and the judgment is conclusive of all questions within the issue, whether formally litigated or not. "It extends not only to the questions of fact and of law which were decided in the former suit, but also to the grounds of recovery or defense which might have been, but were not, presented." Howard-Sevier Road Imp. Dist. v. Hunt, 166 Ark. 62. In the later proceedings involving the three other road districts the material questions of fact and of law were the same as in the first case, and we are bound by the decision under the doctrine of stare decisis. All four of the districts were formed by orders of the county court pursuant to the same statute, and we decided that the validity of the organization of the districts was conclusively settled by the order of the county court creating them, that the statute prescribing the distribution of funds was valid, and that the districts were entitled to the distribution. In the opinion on the former appeal we said: "On examination of the record we fail to find any reference to the character of the road as to whether or not it was a public highway at the time it was to be improved, but we must indulge the presumption, until it appears to the contrary, that the improvement district was legally organized, and that it was a public highway. It was a district organized by order of the county court on petition of a majority of, the owners of property, and the presumption is conclusive that the road to be improved was established as a public highway." This decision necessarily established the validity not only of the statute, supra, prescribing the distribution of funds, but also the statute under which the district was created.

The validity of the statute under which the district was created (General Acts 1923, p. 84) is attacked on the ground that it gives private owners of real property power to create public roads and impose them on the county court, thereby invading the jurisdiction of that court. The statute authorizes the county court to create suburban improvement districts on petition of a majority of the owners of property in the territory adjacent to the proposed improvement. The authority relates to different kinds of improvements, among others "grading, drainage, paving, curbing and guttering streets and highways," and there is no authority for formation of a district for the improvement unless it is a public highway. Therefore the order of the county court creating the district constitutes an establishment of the highway in accordance with the route outlined in the petition. The county court is not compelled, under the statute, to establish the highway, and may refuse to create the district because the road or street to be improved is not already a highway. The statute, for this reason, does not constitute an invasion of the jurisdiction of the county court, and the validity of the statute in this respect is ruled by our decision in the case of Sallee v. Dalton, 138 Ark. 549, and numerous other cases following it. In the present case the county judge testified that the roads to be improved in the districts were not in fact public roads, but, as we have already said, they were made such by the order of the county court in authorizing their improvement as public highways. It was also shown in the trial below that these districts were all promoted by a group of individuals who were personally interested in the various projects. The judgment of the county court in creating the district cannot be attacked collaterally by showing the motives and actions of individuals who petitioned for the improvement and who promoted the project. We have nothing to do with the policy of the legislation now under consideration, but we are called upon to deal solely with the question of its validity and the correctness of the proceedings thereunder in these instances. We are of the opinion that the statutes were valid, and that the formation of the district and the other proceedings have been conducted in accordance with the statute and must be upheld. We so held in the former decision.

It is further contended that appellees have not brought themselves within the terms of act No. 195, supra, in filing proper plans and specifications with the petitions for allotment. Without going into details on this subject, it is sufficient to say that the plans and specifications filed with the petition appear, according to the testimony, to be sufficient. The circuit judge so found, and we think the, decision in that respect was correct.

It follows that, in the opinion of the majority, each of the judgments of the circuit court was correct, and the same is affirmed.