Jessup v. Hancock

• Decision Date: 21 December 1964
• Docket Number: No. 5-3412,5-3412
• Citation: 238 Ark. 866,385 S.W.2d 24
• Parties: Stephen JESSUP, Appellant, v. Ed HANCOCK, Appellee.
• Court: Arkansas Supreme Court

Page 24

385 S.W.2d 24

238 Ark. 866

Stephen JESSUP, Appellant, v. Ed HANCOCK, Appellee.

No. 5-3412.

Supreme Court of Arkansas.

Dec. 21, 1964.

Trantham & Knauts, Piggott, for appellant.

Kirsch, Cathey & Brown, Alfred J. Holland, Paragould, for appellee.

JOHNSON, Justice.

This is an action to oust a school director for usurpation of office. The facts are undisputed. Appellee Ed Hancock was a school director of the Knobel School District in Clay County on September 24, 1963, when he was defeated for re-election by appellant Stephen Jessup. At the time appellant owned no real property in the school district, but purchased property on September 25th, the day following the election, and thereafter took the oath of office. On December 13, 1963, appellee filed suit in Clay Circuit Court, Western District, against appellant, the complaint being in the nature of an information by way of quo warranto, alleging that appellant was ineligible to serve as school director, that appellee was entitled to continue to serve until his successor was chosen, that appellant had usurped the office, and prayed that appellant be removed and appellee restored to office. In its judgment of March 30, 1964, the trial court found that appellant's acquisition of real property after the election was not sufficient to meet the requirements of Ark.Stat.Ann. § 80-504.1 (Repl.1960) ('Director to be owner of real estate'), and ordered appellee restored to office. From the judgment comes this appeal.

Appellee filed his complaint under the provisions of Ark.Stat.Ann. § 34-2203 (Repl.1962) which states:

'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.'

Appellant contends that the trial court had no jurisdiction to hear this matter and should have dismissed the complaint, asserting that appellee's suit was in fact an election contest. Our decision in Faulkner v. Woodard, 203 Ark. 254, 156 S.W.2d 243, is clearly controlling. Quoting from Wood v. Miller, 154 Ark. 318, 242 S.W. 573, we said in the Faulkner case that: 'This is not, in fact, a contest of an election, for, as was said in Wheat v. Smith [50 Ark. 266, 7 S.W. 161], there is nothing to contest concerning the result of the election. Appellee was elected, as conceded, but appellant is contesting his eligibility to hold the office, * * *."

Appellant's second point urged for reversal is that he did not have to own real estate on the exact day of the election, that is, September 24, 1963, but could comply with Ark.Stat.Ann. § 80-504.1 if he owned real estate at the time he was commissioned by the County Clerk to enter upon his duties as such director.

Some of the statutes relative to school directors are: § 80-504 ('A school director shall be a bona fide resident and qualified elector of the school district which he serves'), § 80-504.1 ('Hereafter, no person shall be eligible to be a member of any school board in the State unless such member is the owner of real property in the school district in which he serves'), and § 80-505 ('Each school director elected or appointed shall, within ten days after receiving notice of his election or appointment subscribe to the following oath: * * * The County Clerk upon receipt of oath prescribed for school director, shall immediately commission such persons and they shall enter at once upon their duties as school directors.').

This is a case of first impression in this...