McLeod v. Richardson, 4-6870.

Decision Date22 June 1942
Docket NumberNo. 4-6870.,4-6870.
Citation163 S.W.2d 166
PartiesMcLEOD, County Judge, v. RICHARDSON.
CourtArkansas Supreme Court

Appeal from Circuit Court, Western District, Lawrence County; S. M. Bone, Judge.

Mandamus by the State, on the relation of Roy Richardson, against M. C. McLeod, to compel respondent as county judge to hear and determine the contest between relator and Lloyd Cochran who were opposing candidates for the office of school director. From an adverse judgment, respondent appeals.

Reversed. Writ quashed.

Harry Ponder, Jr., of Walnut Ridge, for appellant.

D. Leonard Lingo, of Walnut Ridge, for appellee.

GRIFFIN SMITH, Chief Justice.

McLeod, as county judge, has appealed from an order of the circuit court commanding him to hear and determine a contest between Roy Richardson and Lloyd Cochran, who at an election March 21, 1942, were opposing candidates for school director.1 Richardson undertook to contest, thinking county court was the proper forum. That tribunal held it was without jurisdiction. The controversy reached circuit court on Richardson's petition for mandamus to compel the county court to act.

Section 24, art. 19, constitution of 1874, authorizes the general assembly to provide by law the mode of contesting elections not specifically provided for. An Act containing 101 sections was approved January 23, 1875, Acts 1874-75, p. 91. Some of its provisions are still in force.2 Section 71 appears as § 4837 of Pope's Digest. It is copied in the margin.3

In Ferguson v. Wolchansky, 133 Ark. 516, 202 S.W. 826, it was held that § 2860 of Kirby's Digest, now § 4837 of Pope's Digest, was applicable to school election contests. The decision was that since no specific statutory or constitutional provision covered such contests, the office was included within the term "county offices". This view, says the opinion, was confirmed by the fact that certain provisions of the school law required school election returns in cities and towns to be made to the county clerk, whose duty it was to deliver a certificate to the person elected.

Validity of Act 234, approved March 11, 1919, was upheld in Stafford v. Cook, 159 Ark. 438, 252 S.W. 597, 598. (See § 11 of the Act.) The right of appeal from a final order of any county board of education was given by Act 183, approved March 21, 1925. Although this Act has not been expressly repealed, it does not appear in the current Digest — this, no doubt, upon the assumption it had been repealed by implication. It was held in Gibson v. Davis, December, 1939, 199 Ark. 456, 134 S. W.2d 15, the Act had not been repealed.

Act 247, approved March 29, 1933, abolished county boards of education and the office of county superintendent. Examiners were substituted for superintendents. Powers and duties formerly exercised by boards of education were transferred to county courts. It was in effect until repealed by Act 184, approved March 22, 1935, which was passed without the emergency clause. Pope's Digest, § 11667-11674.

Act 154, approved February 28, 1939, provides that in districts where there are contests for the office of school director, any ten qualified electors may petition the county examiner to supply duplicate ballots and duplicate ballot boxes for use in the election.4

Act 319, approved March 25, 1937, made each school district, for the purpose of elections, a political township.

Act 184 of 1935, transferred to county courts "* * * the powers and duties formerly exercised by the County Board of Education". It expressly repealed Acts 26 and 247 of 1933, and §§ 29, 31, 32, 33, and 35 of Act 169 of 1931. Boards of education were again (as in 1933) abolished, as was the office of county superintendent.

This was the law's status when Act 327 was approved March 26, 1941. It is entitled "An Act to provide for the more effective supervision of public schools, to create the office of county supervisor of schools, to create a system of county boards of education, to improve the rural schools, and for other purposes".

Section 19 expressly repeals § 11667 and certain succeeding sections of Pope's Digest, also § 11468.

Section 1 of Act 327 created county boards of education composed of five members. Section 13 authorizes employment of a supervisor. Section 11 invests boards with authority and makes it their duty to supervise employes. In addition, "* * * all powers, duties, and the responsibilities respecting the public schools * * * which heretofore have been vested in the several County Courts * * * are hereby transferred to and vested in the respective county boards of education". An exception is that "* * * canvassing of returns and certification of results of all school elections * * * shall continue to be vested in the county courts".

Section 12 is: "In executing the powers herein conferred upon the County Board of Education, said Board shall exercise such powers and jurisdiction with reference to the making of orders and enforcing the same as were formerly conferred upon the County Courts of the State".

In construing Act 247 of 1933, it was said in Shimek v. Janesko, 188 Ark. 418, 66 S.W.2d 626, 627, that the county court, in canvassing votes and declaring results of a school election, did not act judicially. Its duties were similar to those of a county board of education functioning under Act 169 of 1931: "No appeal could be taken from this order, but any person who had been voted for for school...

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