dissenting. I disagree with that portion of the majority opinion that holds the “Contingent Fund” appropriation to be legal. I also disagree with the majority’s conclusion that the record shows that only expenses or obligations imposed by law were being allowed on the “Contingent Fund.”
This court has recognized in Nevada County v. News Printing Company, 139 Ark. 502, 206 S.W. 899 (1918), that Art. 16, § 12 of our Constitution is applicable to the several counties. That provision of the Constitution provides:
“No money shall be paid out of the treasury until the same shall have been appropriated by law, and then only in accordance with said Appropriation.”
In Worthen v. Roots, 34 Ark. 356 (1879), while construing Ark. Stat. Ann. § 17-409, set out at page 10 of the majority opinion, we held:
“. . . [I]t will be seen that the first four [provisions] are of an indispensable nature, essential to the support of the government. They are for services that must be performed, or the business of the counties must stop. The last three are not supposed to be imposed by necessity, but are matters of contract. It is well that appropriations be made for all purposes, but of great consequence that in the matter of contracts the expenses of the counties should be limited to the amounts appropriated. This is impossible in cases of positive service required by law and expenses incident to them; and in accordance with this view the legislature did not reimpose upon the county court any disability as to allowances ... .”
In Fones Hardware Co. v. Erb, 54 Ark. 645, 17 S.W. 7, 13 L.R.A. 353 (1891), we held that a contract for building a county bridge made without a previous appropriation therefor by the levying court was void.
In Nevada County v. News Printing Co., 139 Ark. 502, 206 S.W. 899 (1918), we held that a valid contract, entered into by the county clerk in accordance with an act of the legislature could not be paid by the county court without an appropriation.
In Pressley v. Deal, 192 Ark. 217, 90 S.W. 2d 757 (1936), we had before us a quorum court appropriation allowing the county judge $300 for unusual expenses. We there held that those expenses could not be paid out of the appropriations under the seventh subdivision of Ark. Stat. Ann. § 17-409, supra, which provides: “ ... to defray such other expenses as are allowed by laws of this State.” The theory was that no law of this State authorized the allowance of the expenses.
In Martin v. Bratton, 223 Ark. 159, 264 S.W. 2d 635 (1954), there was before us a quorum court appropriation "... from the County General Fund to allow the County Judge to use it as he sees fit and deems necessary.” In holding this appropriation invalid, we said:
“Counsel for appellees have cited us to no Statute or case and our search has likewise failed to discover any —that allows the Quorum Court to turn over $20,000, or any other amount, to the County Judge ‘to use as he sees fit and deems necessary.’ That such an appropriation is not within the purview or spirit of our Statutes is shown by a study of § 17-412 and § 17-414, Ark. Stats. These provisions clearly envision (1) that all appropriations by the Quorum Court must be for a specific purpose allowed by law; (2) that after the appropriation is made, then any allowance of a claim against that appropriation must be by the County Court and not by the County Judge; and (3) that the County Court order of allowance must specify the appropriation against which the claim is allowed before the money can be drawn out of the Treasury. Although the County Judge presides over the County Court, it is the County Court that makes the order of allowance, and not the County Judge. Art. 7, § 28, of the Constitution so provides. See also Lyons v. Pike County, 192 Ark. 531, 93 S.W. 2d 130. In the case at bar, the Quorum Court by its appropriation of the $20,000 ‘to allow the County Judge to use it as he sees fit and deems necessary,’ attempted to entirely by-pass the functions of the County Court, because the appropriation was to be used by the County Judge, rather than by the County Court.” Id. 225 Ark., at 161-162.
Judge Mackey testified that he had made payments from the “Contingent Fund” in past years for charities and for the moving of a sewer line from the courthouse for the construction of the convention center. On direct examination the record at page 88 shows the following testimony by Judge Mackey:
“Q. Do you have a set of — the budget makes no guide line that I can see as to how these contingent funds are to be spent. Is that your understanding?
A. It is set up for emergency purposes, sir. If we run out of funds in one of the categories set out — we don’t know how much we are going to spend. Fact of the matter, not a dime of the Federal Revenue Sharing money has been spent yet. We have not paid out a dime against this. The contingent fund is simply if we run out of funds in one of the categories which it is appropriated, we can reach in the contingent fund and supplement that.
Q. Who will make that decision?
A. I will.”
The Chancellor who observed the witnesses as they testified in a written opinion made the following observation:
“The 'Contingency Fund’ of the General Revenues in this case does not meet the tests for lawful appropriations laid down by the Supreme Court of Arkansas. This fund is not authorized by any statute; it is not being limited to the expenses of the administration of the County Court; it is not for a specific purpose in accordance with the law; and it is being used for all sorts of county expenses.”
It would appear that his finding on the fact issue is entitled to some weight.
Thus, if we consider the “Contingency Fund” without the evidence as to the allowances made therefrom, it appears to me that it is nothing more nor less than an attempt to entirely by-pass the functions of the county quorum court contrary to Article 16, § 12 of our Constitution. If we consider the testimony then it certainly appears evident that the County Judge is using the “Contingency Fund” to defray deficiencies under any appropriation authorized by Ark. Stat. Ann. § 17-409 including those that are discretionary. The latter results in the payment of claims without an appropriation by the county quorum court or in excess thereof, contrary to the many decisions of this court that have construed the same constitutional provisions and laws here involved.
For the reasons stated, I respectfully dissent.