Lucas v. Futrall

• Decision Date: 09 December 1907
• Citation: 106 S.W. 667
• Parties: LUCAS v. FUTRALL.
• Court: Arkansas Supreme Court

Page 667

106 S.W. 667

LUCAS v. FUTRALL.

Supreme Court of Arkansas.

December 9, 1907.

Appeal from Pulaski Chancery Court; Jesse C. Hart, Chancellor.

Suit by S. D. Lucas against T. A. Futrall. From a decree for defendant, plaintiff appeals. Affirmed.

Plaintiff filed a complaint alleging that on June 5, 1907, at a regular meeting of the board of trustees of the state charitable institutions of the state he was elected superintendent of the Arkansas School for the Blind, for a term of two years, commencing on October 1, 1907; that he gave the bond required by law, and on October 1, 1907, the president of the board of trustees placed plaintiff in charge of the institution as superintendent, and he assumed performance of his duties and continued to perform them; that the business and affairs of the institution were carried on largely by correspondence, of which plaintiff was entitled to the exclusive custody and control, but that defendant, "staying at the blind school, and holding himself out as superintendent," was exercising the functions of superintendent, and has been wrongfully receiving, accepting, handling, and opening the mails of the institution; that such illegal and wrongful acts of the defendant, in attempting to exercise the functions of an office to which plaintiff was elected, and to which he was installed, was leading to a confusion, and was a great and irreparable injury to plaintiff and the public; that plaintiff had no adequate remedy at law, and therefore prayed that defendant be enjoined from remaining on the grounds of the school, and from attempting to exercise any of the functions of superintendent, and from interfering with plaintiff in the exercise of his duties as such. Defendant answered, and filed a cross-complaint, alleging that on April 4, 1906, the board of trustees elected him superintendent, and on the 5th of June, 1906, installed him into office, the duties of which he had continuously performed, and was still performing. He denied that plaintiff was ever lawfully elected to the office, or that he had at any time been placed in charge thereof, or that he ever assumed performance of the duties or continued to perform the duties of the office. The cross-complaint alleged that on September 30, 1907, defendant received a written direction from the majority of the board of trustees to retain control of the institution until the further action of the board, and that on October 8, 1907, when the board was in regular session, he was elected superintendent for two years, or during the pleasure of the board; that he was in full possession and control of the institution as superintendent; and prayed that plaintiff be enjoined from interfering with such control. Plaintiff introduced testimony showing his election by the board of trustees as superintendent, on June 5, 1907, and testified that he had been placed in charge of the institution by the president of the board; that he had been on the grounds a number of times, and had done all he could to take possession of the institution and exercise management of it, short of physical force and violence; that on October 1, 1907, when he interviewed defendant, the latter did not claim to be superintendent, but stated that he had been interviewed by a number of the members of the board, who had asked him to continue in charge until the next meeting of the board, when they assured him of his re-election. He also testified that defendant refused to turn over the books and papers to him; that plaintiff had issued orders to heads of the departments of the school pertaining to their duties, and received and answered letters relative to the superintendency of the institution, and to the best of his ability was discharging the duties of his office. The president of the board testified that he demanded that defendant turn over the books and papers to plaintiff, and told plaintiff to take charge of the institution, but that defendant declined to comply. Defendant's evidence tended to prove that, after plaintiff's alleged election, defendant continued to act as superintendent at the request of certain members of the board, and refused to turn over the office to plaintiff on demand, but continued in charge until the subsequent meeting of the board, when he (defendant) was re-elected superintendent.

J. H. Harrod, for appellant. M. P. Huddleston and Jones & Hamiter, for appellee.

HILL, C. J.

The reporter will state the substance of the pleadings and evidence, and it will be seen therefrom that this is virtually a contest for the superintendency of the Arkansas School for the Blind, under guise of a chancery proceeding brought by Lucas to enjoin Futrall from interfering with his possession of the position, and a cross-complaint by Futrall asking an injunction against Lucas, restraining him from interfering with his possession of the superintendency. Each contestant alleges that he is in possession, and seeks to bring his case within the principle announced in Rhodes v. Driver, 69 Ark. 606, 65 S. W. 106, 86 Am. St. Rep. 21, which is to the effect that a court of equity will not permit itself to be made a forum for the determination of disputed questions of title to public office, but will, when necessary, protect possession of an officer, whether de facto or de jure, against an adverse claimant disturbing his discharge of duties. The complaint and cross-complaint each stated an equitable cause of action. The chancellor dismissed the suit for want of jurisdiction. Futrall has not appealed, and the only question presented is upon Lucas' appeal.

The chancery court had jurisdiction; for, as stated, the allegations of either complaint or cross-complaint gave jurisdiction. But if this position is a public office, then the case should have been dismissed for failure to establish ground for equitable relief, as the evidence failed to sustain the allegation that Lucas was in possession, unless he is shown to be entitled to other relief which will be discussed later. Not being in possession, he was not entitled to an injunction to protect his possession, and that is the only ground for injunction in such cases.

The evidence showed that Futrall was in possession of the blind school as superintendent; that, when Lucas' term as superintendent began, he and the president of the board of trustees made apt demand upon Futrall to deliver possession to him, but that Futrall refused to surrender it. Lucas spent some time in the building, some time on the grounds, a short time in the superintendent's office, and made efforts to act as superintendent; but the evidence indubitably establishes the fact that he did not succeed in ousting Futrall, and that Futrall continued to act as superintendent of the institution, notwithstanding Lucas' efforts to obtain actual possession of the place and its functions. The failure of the evidence to establish the alleged possession of Lucas ends his right to an injunction, if this position be a public office. If it is not a public office, but is an employment for public service resting in contract, and there is no adequate remedy at law for relief, then it may be that equity could grant the relief prayed where the right was clear, and the wrong apparent and otherwise remediless. 4 Pomeroy on Equity Jurisprudence (3d Ed.) §§ 1338, 1341, 1344, 1345. Therefore it is necessary, in order to determine the case, to decide the exact nature of this position. The act of July 22, 1868 (Laws 1868, p. 154), created the Arkansas Institute for the Education of the Blind, and directed that it should be located in the city of Little Rock or its vicinity, and vested the government of it in a board of three trustees, to be appointed by the Governor, who should reside in the city of Little Rock or its vicinity. Many of the provisions hereinafter mentioned have been carried forward in the Digest as applicable to the present institution. The act of March 15, 1879 (Laws 1879, p. 83), changed the name of the Arkansas Institute for the Education of the Blind to the Arkansas School for the Blind, and provided that all laws and parts of laws then in force for the former institution should apply to the latter. Const. 1874, art. 19, § 19, makes it the duty of the General Assembly to provide by law for the support of institutions for the education of the deaf and dumb and for the blind and for the treatment of the insane. As the Constitution left it to the discretion of the General Assembly to provide by law for these purposes, any act which in the judgment of the Legislature was necessary to effectuate these purposes would have constitutional sanction. Therefore, if the Legislature saw fit to create a public office under this authority, it would not be violating section 9 of article 19 of the Constitution, which forbids the General Assembly to create any permanent state offices not provided for in the Constitution, as the mandate to provide for the education of the blind necessarily carried with it the power to create what offices the Legislature might deem necessary to carry out the power conferred. Hence, there can be no constitutional objection to this being a state or public office, and the question recurs whether from its very nature it is an office or an employment.

It is difficult to draw a precise line between a public employment and a public office. It may be best not to attempt any hard and fast rule upon the subject,...