McClendon v. Board of Health

• Decision Date: 08 December 1919
• Docket Number: (No. 35.)
• Citation: 216 S.W. 289
• Parties: McCLENDON et al. v. BOARD OF HEALTH OF CITY OF HOT SPRINGS.
• Court: Arkansas Supreme Court

Page 289

216 S.W. 289

McCLENDON et al. v. BOARD OF HEALTH OF CITY OF HOT SPRINGS.

(No. 35.)

Supreme Court of Arkansas.

December 8, 1919.

Concurring Opinion, December 22, 1919.

Appeal from Circuit Court, Garland County; Scott Wood, Judge.

Action by George R. Belding and others, composing the Board of Health of the City of Hot Springs, against J. W. McClendon and others. From a judgment for the former, the latter appeal. Affirmed.

O. H. Sumpter, of Hot Springs, for appellants.

R. G. Davies, of Hot Springs, for appellees.

WOOD, J.

The city of Hot Springs adopted the provision of Act 114 of the Acts of 1917, providing for a commission manager of municipal governments for cities of the first class. The board of commissioners, consisting of the mayor and four commissioners duly elected under the act, appointed George R. Belding city manager according to the provisions of the act providing for such appointment and prescribing the duties of city manager.

Act 96 of the Acts of 1913 provides for a board of health in cities of the first and second class, and authorizes the mayor of such cities to appoint a city board of health consisting of five persons. J. W. McClendon was the duly elected mayor of the city of Hot Springs. On the 1st day of May, 1919, he appointed the members of the board of health of the city of Hot Springs. The persons so appointed were duly qualified to act, and under the appointment organized what they contend was the board of health for the city of Hot Springs.

On the 9th of May, 1919, George R. Belding, the city manager, appointed five other persons as members of the board of health of the city of Hot Springs, who were also duly qualified to act as such, and under such appointment organized what they contend was the board of health for the city of Hot Springs.

This action was instituted in the circuit court by George R. Belding and those appointed by him as the board of health against J. W. McClendon, the mayor, and those appointed by him as the board of health. The purpose of the action was to determine whether or not the mayor of the city of Hot Springs had authority under the law to appoint the city board of health, or whether that authority was vested in the city manager.

The circuit court held that the city manager had the power of appointment, and that the board appointed by him were the duly constituted board of health of the city of Hot Springs. From the judgment ousting the members of the purported board of health appointed by the mayor is this appeal.

Sections 33 and 34 of Act 114 of the Acts of 1917 are as follows:

"Sec. 33. The mayor and city commission shall elect the city manager, who shall be the administrative head of the municipal government under the direction and supervision of the city commission, who shall hold office at the pleasure of the city commission. He shall be appointed without regard to his political beliefs and need not be a resident of the city at the time of his appointment, and shall be a person specially fitted by education, training and experience to perform the duties of said office. He shall be responsible for the efficient administration of all departments within the scope of his duties. He shall execute a bond in favor of the city for the faithful performance of his duties in such sum and with such surety or sureties as may be fixed and approved by the city commission. During the absence or disability of the city manager, the city commission may designate some properly qualified person to execute the functions of the office.

"Sec. 34. The powers and duties of the city manager shall include the following:

"(a) To see that the laws and ordinances are enforced.

"(b) To organize, continue or discontinue such division or departments from time to time as to him may be deemed necessary and expedient, and to assist and remove all heads of departments, and all subordinate officers and employés of the city; all appointments to be upon merit and fitness alone. He shall fix salaries and wages of all subordinates and employés.

"(c) To exercise control over all such departments or divisions so created, or that may hereafter be created, which shall be made subject to the supervision of the city manager.

"(d) To see that all terms and conditions imposed on the city and its inhabitants, or any public utility franchise, are faithfully kept and performed, and upon knowledge of any violation thereof, to call the same to the attention of the city attorney, who is hereby required to take such steps as are necessary to enforce the same.

"(e) To attend all meetings of the commission, with the right to take part in the discussions, but having no vote.

"(f) To recommend to the commission for adoption such measures as he may deem necessary or expedient.

"(g) To act as budget commissioner and to keep the city commission fully advised as to the financial condition and needs of the city.

"(h) To keep full and complete records of the doings of his office, and to render as often as may be required by the city commission a full report of all operations during the period reported on, and annually, or oftener, if required by the city commissioners, to make a synopsis of all reports for publication.

"(i) To keep the city commissioners fully advised as to the needs of the city within the scope of his duty and to furnish the city commission on or before the 31st day of December of each year a careful estimate in writing of the appropriations required during the next ensuing fiscal year for the proper conducting of the departments of the city under his control.

"(j) To keep repaired all city buildings, and to purchase all supplies for every department of the city.

"(k) To perform such other duties as may be prescribed by this act or be required of him by ordinance or resolution now in effect, or which may hereafter be enacted."

Section 36 provides for the removal of the city manager by a majority vote of the city commission by presenting written statement setting forth the reason for his removal, a copy of which shall be delivered or mailed to him. The city manager is given five days within which he may request a hearing by the city commission, and in that event his removal shall not take effect until a hearing is had and a written decision rendered by a majority of the city commission.

Among these provisions of the act is section 40, which in part is as follows:

"(a) Whenever, in the laws of this state or in the ordinance of a city adopting the provisions of this act, reference is made to the `council' or `aldermen,' such reference shall be deemed made to the `city commission' and `commissioners' respectively created and elected under the new form of government hereby created.

"(b) When any officer or office is named in any law of the state or ordinance of...