Boyce v. Clapham

• Decision Date: 08 March 1920
• Docket Number: 230
• Parties: BOYCE v. CLAPHAM
• Court: Arkansas Supreme Court

219 S.W. 24

142 Ark. 519

BOYCE v. CLAPHAM

No. 230

Supreme Court of Arkansas

March 8, 1920

Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor affirmed.

Decree affirmed.

Rogers Barber & Henry, for appellant.

The appointment of appellees as members of the board was illegal and void, as three of the old commissioners had not resigned and there was no advertisement of the sale of the bonds and no competitive bidding. There was no vacancy on the board at the time the court appointed appellees. Act No. 279, Acts 1909, § 4; act 221 amending No. 279. Before removal of an officer, there must be notice and a hearing. 84 Ark. 551 and cases cited. The facts must be found according to the proof. 15 Cyc., § 301, p. 915; 1 Nev. 440. There was no resignation and no vacancy to fill and the removal was void. It is against public policy. 32 Cyc. 1251; 100 Md. 520.

Rose Hemingway, Cantrell & Loughborough and Will G. Akers, for appellees.

1. If the act of the court amounted to a removal it was in all respects valid. Act 279, Acts 1909, § 13. There was notice and a hearing.

2. This is a collateral attack and the commissioners acquiesced.

3. The commissioners were not removed; they resigned. This may be done by parol or in any way evincing declination to serve further. 22 R. C. L. 556-558; 39 Ark. 214; 134 Ark. 292.

4. The sale of the bonds was legal. Art. 19, § 16, Const. 1874. Publication was not necessary. 55 Ark. 148; 55 Id. 81; 32 Id. 666.

OPINION

MCCULLOCH, C. J.

On July 7, 1919, the Pulaski-Lonoke Drainage District was duly organized by order of the circuit court of Pulaski County on petition of a majority of the owners of real property in the district, and three commissioners were appointed. The proceedings were pursuant to the general statutes with respect to the organization of drainage districts. Act No 279, session of 1909, as amended by Act No. 221, session of 1911, and Act No. 177, session of 1913.

On August 2, 1919, the circuit court of Pulaski County entered an order reciting the resignation of the three commissioners tendered in open court and the appointment of appellees as commissioners to fill the vacancies caused by said resignations. Appellees subsequently took the oath and organized themselves into a board of commissioners and proceeded to form plans for the construction of the improvement and to contract for the sale of bonds.

Appellant, who is the owner of real property in the district, then instituted this action in the chancery court of Pulaski County to restrain proceedings on the ground that the appointment of appellees as members of the board of commissioners was illegal and void in that the three old commissioners had not in fact resigned; and also to restrain the issuance of bonds on the ground that there had been no advertisement of the sale of bonds and no competitive bidding.

In the hearing before the chancery court appellant sought to prove by oral testimony that the commissioners had not in fact voluntarily resigned, but had been forced out by the circuit judge. Appellee met this proof with oral testimony tending to show that the old commissioners voluntarily resigned at the suggestion of the circuit judge on account of material disagreements between the commissioners and lack of...