79 Ark. 236 | Ark. | 1906
(after stating the facts.) The act said: “The court shall require a good and sufficient bond to be filed with each bid.” The bond was not filed with the bid, was not filed prior to the acceptance of the bid, and was not filed until after the order was made, and the court adjourned. The order was made that, upon a good bond in the sum of $25,000, conditioned as required by law, being approved by the county court, or judge in vacation, the funds be deposited with this bank. The order was made 'August 28, and the bond filed and approved September 4, 1905. The act makes.it the duty of the treasurer and collector to make the deposits within five days after the order of the county court is made, under heavy penalties for a failure to do so. In this case no bond was presented and approved until more than five days after the.order. The order was made subject to the approval by the court or judge in vacation of such bond, thereby substituting a vacation order as the point from whch the five days should run, instead of having the whole matter settled in the county court as required by the act. The safety and security of the county funds were to be rested primarily upon the bond, whatever be the other securities, and the act plainly required it to be filed with the bid, and that it should be a good and sufficient bond, and it should be approved by'the county court, and not the judge in vacation. 'All of these provisions were disregarded here, and the question turns on whether these provisions are directory or mandatory.. Where directions in a statute reach to the very essence of the thing to be done, and where a failure to observe them prejudices rights sought to be preserved by these directions, then they are mandatory, and not merely directory. Miss., &c., Rd. Co. v. Gaster, 20 Ark. 458; Neal v. Burrows, 34 Ark. 491; Rector v. Board, 50 Ark. 116; Watkins v. Griffith, 59 Ark. 344; Benjamin v. Birmingham, 50 Ark. 439; School District v. Bennett, 52 Ark. 511; Sonfield v. Thompson, 42 Ark. 46.
Applying these principles to the case at bar, it is apparent that these directions as to presenting a good and sufficient bond with the bid, and its approval by the court in term time, and as a condition precedent to the operation of the order depositing the funds, reach to the essence of the thing to be done, and are mandatory, and a failure to obey them should avoid the order in question.
The appellant assails the act as unconstitutional and invalid for many reasons stated in the brief, and the circuit court held one section of it unconstitutional.
This court has long followed and approved this doctrine thus stated by Judge Cooley as to its duty to decide questions affecting the validity of acts of the General Assembly: “While courts can not shun the discussion of constitutional questions when fairly presented, they will not go out of their way to find such topics. * * * It is both proper and more respectful to a co-ordinate department to discuss constitutional questions only when that is the very lis mota. * * * In any case, therefore, where a constitutional question is raised, though it may be legitimately presented by the record, yet, if the record also presents some other and clear ground upon which the court may rest its judgment, and thereby render the constitutional question immaterial to the case, that course will be adopted, and the question of constitutional power will be left for consideration until a case arises which can not be disposed of without considering it, and when, consequently, a conclusion upon such question will be unavoidable.” Railway Company v. Smith, 60 Ark. 240.
Finding a clear and positive ground for decision of this case under the act itself, the court has not considered the constitutional question raised against the act.
The judgments are reversed, and remanded with directions to dismiss the suit against the treasurer and vacate the order requiring the deposit of the funds.