When the State Highway Commission undertakes to appropriate to its own use a portion of the county turnback fund of any county, then certainly the State Highway Commission should pursue the strict letter of the law and should show court action by documents and not by casual conversations.
The record here shows that no petition was ever filed by the State Highway Commission in the counts *Page 403 court of Pulaski county in accordance with either Act 205 of 1929 or Act 281 of 1941. All that occurred were two informal conversations. In October, 1940, when Judge Burlingame was the county judge of Pulaski county, a representative of the State Highway Department asked Judge Burlingame about the matter; and the judge stated that Pulaski county was without funds. This is certainly far from filing a petition and securing an order of denial thereon. Then in January, 1941, when Judge Newton was county judge, a representative of the highway department asked Judge Newton to make an order; and the judge replied that he wanted to look into the matter further. No petition was ever filed with the county court of Pulaski county. As was said by the United States Circuit Court of Appeals of the Second Circuit in the case of In re Gubelman, 10 F.2d 926: "The word `filed' has not been defined by Congress. It has, however, a well-defined meaning. It signifies the delivery into the actual custody of the proper officer, designated by the statute, and whose duty it is to keep the records of the court. It carries with it the idea of permanent preservation of the thing as a public record. A paper is not filed by presenting it to the judge. He has no office in which papers are filed and permanently preserved. A paper in a case is not filed until it is deposited with the clerk of the court, for the purpose of making it a part of the records of the case. See United States v. Lombardo, 241 U.S. 73, 36 S. Ct. 508,60 L. Ed. 897; Laser Grain Co. v. United States, 250 F. 826, 163 C.C.A. 140; Emmons v. Marbelite Plaster Co., (C.C.) 193 F. 181; In re Von Borcke, (D.C.) 94 F. 352."
If any taxpayer of Pulaski county had wanted to know what the court had done about highway condemnation, the taxpayer could never have ascertained the facts by looking at the docket of the county court, because the docket showed nothing filed and no order made or refused. The county court is a court; and matters before it and actions taken by it are not to be proved by casual conversations, but are to be proved as the solemn action of any other court is to be proved. If the highway commission of Arkansas had filed its papers *Page 404 with the county court, like any other litigant was required to do, then the county court of Pulaski county could have legally granted or refused the requested order. Until that was done, the State Highway Commission had no right to appropriate funds of Pulaski county.
Furthermore, the whole procedure of taking this money away from Pulaski county appears to have been an afterthought and without any accounting for the amount taken. The State Highway Department waited until October 22, 1942, before passing a resolution attempting to take this money. Act No. 281 of 1941 says in part, (a) "And in such event, one-half of the cost of acquiring such right-of-way shall be deducted from the next payment due any county by reason of any appropriation out of the State Highway Fund. . . ."
There is nothing in the record in this case to show whether this deduction covered by the resolution of October 22, 1942, came out of "the next payment" after the acquiring of the right-of-way; and there is nothing in the record to show any sort of accounting by the State Highway Commission to Pulaski county as to what was the amount paid for right-of-way damages for any property taken or damaged.
Therefore, because of the irregularities of the highway department in its procedure in this case, this cause should be affirmed, and I, therefore, respectfully dissent from the holding of the majority; and I am authorized to state that Mr. Justice ROBINS joins me in this dissent.