| Ark. | Apr 7, 1900
(after stating the facts.) The judgment of the circuit court sufficiently states the facts in this case, without further statement of them by this court.-
The cause was tried before the Hon. John Fletcher, a special judge, sitting as a jury, and the findings of facts by the court, where there is evidence upon which they might be sustained, are conclusive upon this court. We therefore consider these findings of facts first.
We take it that there is no serious question upon the evidence or doubt that the bonds of Hot Spring county for $22,-000, numbered from 1 to 220', both inclusive, were issued, and! became a part of the indebtedness of Hot Spring county prior to the 5th of April, 1873, when the act was passed for the formation of Garland county out of territory taken from Hot Spring and other counties. While it seems not to be so certain that the bonds numbered from 221 to 320, both inclusive, were not issued till after the 5th of April, 1873, still there is some evidence to support the finding of the circuit court that said bonds were not issued and delivered so as to constitute a part of the indebtedness of Hot Spring county till after-April 5, 1873. The finding therefore must stand as to this. The finding that the territory taken from Hot Spring to form part of Garland county constituted on the 5th of April, 1873, 38.5 per cent, of the assessed value of all the real and personal property liable to taxation in Hot Spring county is supported by the evidence in the case. We cannot disturb this finding, nor the finding of the court that the value of the jail remaining in Hot Spring county after the 5th of April, 1873, was $3,600. The fact that it cost originally more than that is not evidence of its value on the 5th of April, 1873. We think the facts and circumstances as proved sustain the court’s-finding as to its value; at all events, it is not without some evidence in the record to sustain it.
The court found that the court house in Hot Spring county-had been one-third completed on the 5th of April, 1873, and that it was of no value to Hot Spring county. The evidence shows that the court house was never turned over to Hot Spring county, but that it was sold in its unfinished condition to Emmerson and another, under a mortgage, and was torn down, and the material removed.
But, says the counsel for Garland county, Hot Spring county, through her board of supervisors, prevented the building of the court house to completion by releasing the contractor, and cancelling the contract; but for this the court house would have been completed, and Hot Spring county would have had it when completed. But the evidence tends to show that, owing to the condition of things in Hot Spring county, the court house, had it been completed, would have been of nominal value only, at most, to the county. A movement was pending to change the county site of Hot Spring county from Rockport to Malvern in said county, Malvern being on the St. Louis, Iron Mountain & Southern Railway, while Rockport was off the line of said railroad, then approaching completion through Hot Spring county. It was a foregone conclusion that the county seat would be moved from Rockport to Malvern, which was soon afterwards done.
In reality it seems that this decree releasing the sureties on the bond of the contractor Nickles was a nullity, for Hot Spring county was not a party to the proceedings in which this was done, as we think the record shows. This seems to have been an effort to rid the county of Hot Spring of these bonds, for the decree, while it purported to release Nickels and his sureties, directed the delivery of all the bonds issued and put in circulation, and the cancellation thereof, which however was never done.
We are of the opinion that there was no error in the finding of the court that the court house was of no value to Hot Spring county. If it can be said that this decree bound Hot Spring county, it also bound Garland county, for Hot Spring stood for and represented Garland county, so far as the territory in Garland that was taken from Hot Spring county is concerned. Board of Supervisors of Chickasaw County v. Board of Supervisors of Clay County, 62 Miss. 325" date_filed="1884-10-15" court="Miss." case_name="Board of Supervisors v. Board of Supervisors">62 Miss. 325.
The judgments of the United States circuit court against Hot Spring county settled the validity of these bonds, and the rate of interest recoverable upon them, and cannot be collaterally attacked, even if erroneous in the amount of interest recovered against Hot Spring county. Chollar v. Temple, 39 Ark. 238" date_filed="1882-11-15" court="Ark." case_name="Chollar v. Temple">39 Ark. 238. Garland county is bound by these judgments. She was represented by Hot Spring county. Board of Supervisors of Chickasaw County v. Board of Supervisors of Clay County, 62 Miss. 325" date_filed="1884-10-15" court="Miss." case_name="Board of Supervisors v. Board of Supervisors">62 Miss. 325.
These judgments are res judicatae, and estop both Hot Spring and'Garland counties. 1 Herman on Estoppel §§ 53, 54, 348, 349.
The evidence of- Latta and Sumpter that the territory-taken from Clark and Montgomery counties, and attached to Hot Spring county when Garland county was established, was intended by the legislature as a compensation to Hot Spring county for territory taken from Hot Spring county and attached to Garland county, was properly excluded by the circuit court. The act of the legislature speaks for itself, and the intention .is derived from a construction of the act by the courts. There was no error in refusing to allow Garland county credit for territory taken from Clark and Montgomery counties and attached to Hot Spring county at the time of the formation of Garland county. Why Garland county should claim credit on this account we aré unable to see.
It is not insisted that the act under consideration is unconstitutional, though this is made the third ground of the motion for a new trial by Garland county. It is waived in the 'argument of counsel, conceding that the constitutionality of the act was settled by this court in Perry County v. Conway County, which we think is correct (52 Ark. 430" date_filed="1889-11-15" court="Ark." case_name="Perry County v. Conway County">52 Ark. 430).
The appellee, in its second assignment of error in its motion for a new trial, says “that the court erred in refusing to include in the sum of the indebtedness part of which Garland county was, by the general assembly, made liable, to pay,, the costs incurred in the United States circuit court in mandamus proceedings to compel levy of taxes with which .to pay judgments on causes of action, which the court in this case held to be such indebtedness as said Garland county was so liable to discharge in part.” Hot Spring county might have arranged.to meet her ■ indebtedness without being compelled by mandamus, and it was no fault of Garland county that she had to be com - pelled by mandamus to do so. The coui’t did not err in holding that Garland county was not liable for part of the costs of these mandamus proceedings, or for poundage paid the clerk of the United States court, or the fees paid the tax collector and treasurer of Hot Spring county for collecting and paying out.
In the sixth assignment of error in appellee’s motion for a new trial it is said “that the court erred in refusing to allow interest to Hot Spring county on that part of the, indebtedness for which Garland county is now adjudged to be liable from the dates upon which Hot Spring county made the ■ several payments that paid and discharged the same down to the date of the judgment of this circuit court adjusting the indebtedness between Hot Spring county and Garland county. We think there was no error in this ruling. Debts against counties do not bear interest as matter of law. There is no statute allowing interest on such debts in this state, and it seems that interest was not allowed at common law. 11 Am. & Eng. Enc. Law, 379, 380; Perley on Interest, 65 (1) and cases cited; 11 Am. & Eng. Enc Law (1 Ed.), 388d, note 3, and389 note 1'.
The judgment of the circuit court is in all things affirmed.'