#### Monroe County v. Brown.

Opinion delivered May 17, 1915.

1. County court — allowance of claims — judgment—collateral attack. — A county count, in (the allowance of claims against the county, acts judicially and its judgments are noit 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 those 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. County court' — allowance of claim — excessive amount. — Tbe mere fact that the county ©curt has erroneously allowed a claim for an excessive amount, does not call for ¡reinvesitigation and review in subsequent proceedings under the statute, hut if fraud has been practiced in the allowance itself, the claim is an illegal one and ¡the judgment may he 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 allowed against a county, fraudulently, for an excessive amount, and the judgment making such allowance has later been corrected, on appeal, tbe circuit court, after determining that the original judgment of allowance should be set aside for fraud, may render a judgment allowing tbe correct amount due the original claimants, and direct that new warrants ibe issued for ¡such amounts.

6. Road districts — appropriation—contracts.—Under Act of 1905, ip. 226, contracts for road purposes ¡are limited to the estimated ¡amount ¡of funds to he raised by the tax, ¡and any contract in excess of the amount appropriated and to be collected, is void. In a *525special ease, before a contract will be declared void it must be shown that 'the contract was made after .the appropriation waa exhausted.

7. Road districts — contracts—assessments—validity of act. — Acts 1905, p. 226, limiting the contract-making power of a road improvement district is aot in conflict with Amendment No. 5, authorizing a special levy for iroad purposes.

Appeal from Monroe Circuit Court; Eugene Lank-ford, Judge;

affirmed.

Maiming, Emerson & Morris land G. F. Greenlee, for appellant.

1. Demands against a ¡county must be verified according to law. Kirby’s Dig., § § 988, 1453, 1179. Counity courts are expressly prohibited from ¡allowing any greater isum than is actually due in money. 47 Ark. 80; 44 Id. 437; 31 Id. 552. On appeal the circuit 'court Can 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 niot enter into a ■trial of .the questions which should have been tried when the claim was presented, and hear new testimony, but it must cancel the warrant if illegally issued, and the circuit court, on (appeal, can (only order the warrant can-celled.

2. On appeal, the 'circuit court had no (authority to try the merits of ¡the claims. 52 Ark. 502. The 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 ibe no inno'eeu! purchaser of county warrants. 98 Ark. 229; 103 11. S. 74.

Thomas & Lee, for appellees.

1. The county court is clothed with authority to go into all the evidences of indebtedness, and if a legal demand or claim is shown, it is its duty to reissue the warrant. Kirby’s Dig., § § 1179, 1375. It has original exclusive jurisdiction to settle all demands against the *526county. 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; Kirby’s Dig., § 3517. On appeal the matter is tried de novo. and amendments may ¡be made that do not change the original cause of notion. 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 la. 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 ©hare 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 reissu'ance 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, or for any lawful purpose whatever” and shall make an order fixing (the time for the presentation of said warrants, eltc. 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 *527warrants, 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 ithe 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 he raised for road purposes when voted by 'the electors of the county.’ The affidavit attached to each iof ithe 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 ithe '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 cf the warrants.

The warrant held by appellee Counts was ¡also a warrant drawn on the road fund and was based upon an allowance made to a laborer, iand, ¡as in the Brown case, the ‘affidavit was made by 'the overseer and not by the claimant. It appears ¡alsio that pursuant to an understanding between the county judge ¡and the ruad overseer the account was increased from $6 to $8 on account 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 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.

Tbe Bank of Clarendon case involves warrants which were issued, based upon allowances to the county made *528upon 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 counity, '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, land that part of the statutory affidavit which declares that ‘the 'bill was not enlarged, enhanced nr otherwise made greater in consequence of an estimated, supposed or real depredation 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 oné-third of the amount.of the account, thus striking out the increase incorporated in ■the claim on account 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 judgments 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 as the true interpretation of the force and effect of the judgments of county courts and the methods 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 *529warrants, 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 them, and iaiso to reject warrants 'otherwise illegally or fraudulently issued, us held in Desha County v. Newman, supra. Fourth. An order of allowianlce may be opened in chancery, us any other judgment, for fraud, accident or mistake, on a proper case made.”

In the case of Desha County v. Newman, 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 camteellation or reissuance, and involved the question of ifche power of the county court in that proceeding to cancel a warrant based upon allowance for a printing account presented against the county. In discussing the effect of the statute and the power given to the county 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 lat 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. 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*530ute 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 ¡count is authorized to review former judgments of the court for mere errors iu the allowance of claims, but they are authorized to reject claims which have been illegally or fraudulently issued. In other words, where the claim against the county wais 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 Iby 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 bad been an error discovered in the ¡amount of commissions ¡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 count 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 bedause the claim was illegal 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 amount does not call for reinvestigation 'and review in subsequent proceedings under *531the 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 claim 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 bias /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 counity 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 *532the purview of the statute. This view is expressed by Judge Dillon in the ease of Shirk v. Pulaski County, 4 Dillon, 209. That wlas a suit on warrants, and 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 he rendered for that amount.

We conclude therefore' that the circuit court was correct in ascertaining, .after determining that the original judgment of allowance should be set .aside for the reasons stated, the correct .amount due the original claimants land .directing new warrants for such ¡amounts.

(6-7) It is also contended by counsel for appellant that the roiad 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 h!ad 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 iand disbursing the road funds. See Acts of 1905, p. 226. Section 4 of the act reaids as follows: “No contract shall he 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 mot for the ensuing year, and then not until .an estimate shall be made of the (amount of money that will be raised by sudh 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, ¡on 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 to that provision. It is clear, *533¡however, from. >a consideration of the language of the special -statute quoted above, that it was intended to limit contracts for road purposes to the estimated 'amount of funds to be raised by the tex, '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 amount of road warrants exceeded the 'amount of the appropriation and Hhe amount 'actually collected for the years manned, but it does not appear that the contracts upon which the warrants held hy the appellees were based, exceeded the estimate or appropriation. It shows that •the total amount of warrants did in -fact exceed the estimate, hut 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 iand 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, iand if made latflterward's to declare the allowance void, for in that case 'the county court wtas without power to make 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.