McClendon v. Board of Health
Citation | 216 S.W. 289,141 Ark. 114 |
Decision Date | 08 December 1919 |
Docket Number | 35 |
Parties | MCCLENDON v. BOARD OF HEALTH |
Court | Arkansas Supreme Court |
Appeal from Garland Circuit Court; Scott Wood, Judge; affirmed.
Judgment affirmed.
O. H Sumpter, for appellants.
1. The provisions of act 96, Acts 1913, govern the appointment of boards of health of cities of the first class and the provisions of act 114, Acts 1917, do not apply and said act does not expressly give the city manager the authority to appoint such board nor divest the city of such authority.
2. Said act 96 expressly constituted the mayor ex-officio a member of said board and by no rule of statutory construction can he be deprived of that right and the city manager be substituted under either of said acts and the court erred in its declarations of law.
R. G Davies, for appellee.
The decision below was entirely correct and answers all the contentions of appellants and the judgment should be affirmed.
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 first 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 day 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 was 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:
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 the 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...
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