Ferguson v. Wolchansky

• Decision Date: 15 April 1918
• Docket Number: 289
• Citation: 202 S.W. 826,133 Ark. 516
• Parties: FERGUSON v. WOLCHANSKY
• Court: Arkansas Supreme Court

202 S.W. 826

133 Ark. 516

FERGUSON v. WOLCHANSKY

No. 289

Supreme Court of Arkansas

April 15, 1918

Appeal from Desha Circuit Court; W. B. Sorrells, Judge; affirmed.

Judgment affirmed.

X. O Pindall, Danaher & Danaher and P. S. Seamonds, for appellants.

1. The demurrer confesses the truth of the complaint. Bliss Code Pl., § 418. There was no election under act 55 Acts 1917, pp. 233-4. Plaintiffs are the legal directors. 23 Am St. 51; 83 Am. Dec. 751; 65 Ga. 260, etc.

2. It was error to sustain the demurrer. The court should have waited for proof as to whose fault it was that the election was not held. 75 Ind. 518; 22 Oh. St. 340; 31 Mich. 78.

3. Defendants were mere volunteers and usurpers. 95 Ark. 26; Kirby's Digest, § 7983. The proper remedy was sought. Bliss Code Pl. §§ 453-4; 66 Ark. 201; 68 Id. 555; 84 Id. 551; 27 Id. 13. The directors were never legally elected under the act and it has no force. 36 Cyc. 1200; 26 Ala. 619; 17 Cal. 23; 3 Mass 106. See also 9 Neb. 490; 4 N.W. 75; 36 Cyc. 1200; 31 Ark. 701; 9 La.Ann. 237; 8 Id. 401; 12 C. J. 721; 4 Cent. L. J. 442.

F. M. Rogers, for appellees.

Appellant's offices were abolished by the act. It was legally passed. The court had no jurisdiction and the demurrer was properly sustained. K. & C. Dig. §§ 9593-4-5-6. Appellees were not usurpers. They, at least, had color of title. The complaint stated not facts, but mere conclusions. Mere irregularities do not avoid an election. The act of 1917 was operative. 6 Wall, 499. No title to the office is alleged or proven in plaintiffs. It is alleged that an election was held or that appellees were elected, hence they had color of title and were not usurpers.

OPINION

MCCULLOCH, C. J.

The General Assembly of 1917 by special statute created Special School District of Watson, in Desha County, out of territory which then constituted Common School District No. 9, Acts of 1917, p. 233. The act was approved by the Governor on February 8, 1917, and, having the emergency clause, went into effect immediately. Section 4 of the statute provided that the directors of the common school district "shall hold the annual school election in May, 1917, and at said election six directors shall be elected, two of whom shall serve for a term of one year, two shall serve for two years, and two shall serve for three years; and thereafter at each annual election two directors shall be elected to serve for three years."

Appellants were the directors of the old common school district and instituted this action in the circuit court of Desha County against appellees pursuant to the terms of the statute which provides that whenever a person "usurps an office or franchise to which he is not entitled by law, an action by proceedings at law may be instituted against him, either by the State or the party entitled to the office or franchise, to prevent the usurper from exercising the office or franchise." Kirby's Digest, sec. 7983.

It is alleged in the complaint that appellees "wrongfully and falsely claim that they are directors of said school district, have assumed to act as such and have usurped the offices of the plaintiffs, and have attempted to make contracts with teachers for said district, and to do other acts which plaintiffs alone have the right to do." The further allegations of the complaint with respect to the legal status, conduct and claims of appellees concerning their relations with the school district read as follows:

"Defendants claim to have been elected as directors of Watson Special School District, and that said district abolished said School District Number Nine; but plaintiffs state that said election, which was attempted to be held on the 19th day of May, 1917, at Watson, Arkansas, was illegal and void, because no judges were selected or acted as provided by law, nor were any clerks so selected or appointed, and no clerks or judges took the oath of office, or qualified, as required by law; that mere bystanders pretended and undertook to conduct an election, and, by threats and force, coerced and compelled voters, against their wills and desires, to cast ballots prepared by said bystanders; and the said bystanders who pretended to conduct said election allowed numbers of men, in no manner qualified as voters, to place ballots in the ballot box. Plaintiffs state, that if the said election had been conducted in the manner provided by law, and only legal votes allowed to be cast, the defendants would not have received a majority of said votes, and would not have been elected."

The trial court sustained a demurrer to the complaint and entered judgment dismissing the complaint, from which an appeal has been prosecuted.

Appellants attempted to state a cause of action within the statute above referred to in relation to suits against usurpers in office but we are of the opinion that they have failed to state a cause of action within that statute. Persons assuming to act under an election authorized by law,...