#### Ogden v. Pulaski County.

4-2708

Opinion delivered October 24, 1932.

Brichhouse & Brichhouse, for appellant.

Carl E. Bailey and Fred A. Bonham, for appellee.

Smith, J.

Pulaski County entered into a contract for the construction of a county road with appellants, under which contract there was due the sum of $13,229.51. A claim therefor against the county was disallowed by the county court on August 31,1931, for the reason that there were no county funds available for its payment. The circuit court so found upon an appeal from the disallowance order by the county court, and the judgment of the circuit court, from which is this appeal, recites that the claim was disallowed for the reason that the condition of the county’s finances would not permit its payment, under amendment to the Constitution, No. 10, 184 Ark., page xxix.

The provisions of this amendment No. 10 have been construed so frequently and so recently that it must now be treated as definitely settled that it is not within the power of a county court to allow any claim against the county, however just and meritorious it may be, when, by such allowance, the total revenue for the current fiscal *338year, from all sources, will be exceeded. Pulaski County v. Board of Trustees, ante p. 61.

Tbe case of Burke v. Gulledge, 184 Ark. 366, 42 S. W. (2d) 397, arose under very similar facts. In that case allowances were made against Phillips County on account of tbe construction cost of certain rural roads, in payment of wbicb warrants were drawn on tbe “Special County Road Tax Fund.” At tbe time tbe allowances were made, tbe county’s expenditures bad exceeded its revenues for tbe then current year. Tbe “Special County Road Tax Fund,” against wbicb tbe warrants were drawn, was composed of revenues derived from several sources, tbe tbree-mill road tax being a part thereof, as was also tbe county’s proportionate part of tbe “State Turnback Money,” wbicb last-named fund was derived by tbe county under tbe appropriations made pursuant to act 63 of tbe Acts of 1931 (Acts 1931, page 171). It was held, in this Burke case, supra, that the allowance of“ a claim against a county was void when, by such allowance, tbe total revenues for tbe current fiscal year, from all sources, were exceeded, and tbe judgment of tbe circuit court directing tbe payment of such a claim against tbe county was reversed.

It was pointed out, however, in tbe Burke case, supra, that it bad been held in tbe case of Anderson v. American State Bank, 178 Ark. 652, 11 S. W. (2d) 444, that amendment No. 10 did not apply to funds paid over to tbe counties by tbe State pursuant to tbe act 63 of tbe Acts of 1931, as that fund was not county revenue within tbe meaning of tbe amendment. It was therefore held, in the Burke case, supra, that, while tbe demands there involved could not be allowed against tbe county and paid out of county funds, it might be allowed and paid out of tbe county turnback money derived under tbe act of 1931, as a gratuity from tbe State.

Tbe present appeal may be disposed of, however, by bolding, as we do bold, that tbe claim against tbe *339county was properly disallowed by reason of the inhibition of amendment No. 10, above recited.

The judgment of the court below must therefore be affirmed, and it is so ordered.