Neal v. Parker
| Decision Date | 11 March 1940 |
| Docket Number | 4-5822 |
| Citation | 139 S.W.2d 41,200 Ark. 10 |
| Parties | NEAL v. PARKER |
| Court | Arkansas Supreme Court |
Appeal from Desha Circuit Court; T. G. Parham, Judge; reversed.
Judgment reversed and cause remanded.
E W. Brockman, for appellant.
Hopson & Hopson, for appellee.
The Southeast Arkansas Levee District was created by act 83 of the acts of 1917. Section 3 of said act provides that the district shall be managed and controlled by a board of six directors, for which purpose said levee district is divided into three sub-districts. The act also provides for the number of directors for each sub-district, and that all of the sub-directors shall be real estate owners, owning not less than 160 acres subject to levee tax within their respective districts, and shall be qualified voters under the laws of the state. The directors named in the act were R. B Chotard, W. Dixon Trotter and C. Warfield. The act provided that these directors shall serve until the end of the calendar years 1918, 1920 and 1922, respectively, and that their successors shall be elected at the general state election in 1918, 1920 and 1922, respectively, for a term of six years; that they should qualify and enter upon the discharge of their duties on the first day of January following their election. J. N. Holcomb and Joe Demarke were appointed directors of the second sub-district, to serve until the end of the calendar years 1920 and 1922 respectively, and that their successors should be elected for a term of six years at the general state election in 1920 and 1922, respectively, and that they should qualify and enter upon the discharge of their duties on the first day of January following their election. Gus Waterman was appointed director for the third sub-district. Joe Demarke, who had been elected as a member of the board, and whose term would expire in 1940, removed from the district and from the state, and thereby created a vacancy. C. T. Neal was elected, received certificate of election from the county court of Desha county, filed the bond required, and on January 1, 1937, took oath and qualified under act 83 of the acts of 1917. He served as an active member of the board until January 1, 1939. In the fall of 1938, Parker had his name placed upon the ticket at the general election, claiming that Neal was not legally elected and that there was a vacancy. No one else was a candidate for the place, and Parker received a majority of the votes. About January 1, 1939, Parker took the oath of office, and has been performing the duties as commissioner since that date, the board refusing to recognize Neal any longer.
Neal filed suit in the circuit court in April, 1939, seeking to oust Parker, and also on April 13, 1939, filed an action in the county court contesting the certificate of election issued to Parker on the ground that it was void for the reason that no vacancy existed at the time.
The complaint alleged that Neal was a resident of Desha county, Arkansas, a qualified elector, owning more than 160 acres of land located in the second sub-district of the Southeast Arkansas Levee District; that the defendant, J. L. Parker, is a resident of Desha county, Arkansas; that the Southeast Arkansas Levee District is an improvement district created under act 83 of the acts of 1917; that the law creating said levee district provides that the directors elected as provided in said act shall hold the office for the time specified in said act and until their successors are elected and qualified; that prior to 1934 Joe Demarke was elected in accordance with the terms of said act to serve as a member of the board of directors, and the term to which he was elected will expire December 31, 1940; that the said Joe Demarke, after the election, qualified as provided in said act, and served as a member of the board of directors until he vacated the office; that sometime prior to the first day of January, 1936, the said Joe Demarke moved away from Desha county and the state of Arkansas; established his legal residence in the state of California, and the position of director held by him was thereby rendered vacant. Act 83 above mentioned provides that when a vacancy occurs on the board of directors of said district, a successor shall be elected at the next general election after said vacancy occurs and the successor so elected shall serve for the unexpired term, and until his successor is elected and qualified; that at the election in November, 1936, under the terms and provisions of said act, C. T. Neal was duly elected at said election to fill the unexpired term of office previously held by the said Joe Demarke; that thereafter, on January 1, 1937, plaintiff qualified by taking the general oath prescribed by the law, filed the bond required, and entered upon the discharge of his duties as a member of the board of directors of said levee district, and has continued to serve and is now a duly elected, qualified and acting member of said board of directors, and that the term for which he was elected and to which he qualified will not expire until December 31, 1940; that plaintiff has not relinquished said office, and at no time abandoned, refused to serve or in any manner evidenced any intention to relinquish said office; that since he was qualified to said office in the manner aforesaid, no legal action has been instituted to declare that a vacancy exists in said office; in fact no vacancy has existed therein since plaintiff qualified as aforesaid. Plaintiff further states that the defendant, J. L. Parker, is illegally, contrary to the constitution of the state of Arkansas, and without authority of law, making some claims to the office which is held by the plaintiff; that said Parker and other members of the board of directors, except the member from the third district, are endeavoring through fraud and collusion to encourage said Parker to make unlawful claims to said office and to prevent plaintiff from serving as a member of the board of directors of said district; that said office is a civil office and being a civil office, the defendant Parker is not entitled to the possession of said office, nor to the rights and emoluments thereof; that said Parker is a usurper of the office, is illegally attempting to perform the duties thereof, and that plaintiff is a duly qualified and acting member, and is entitled to said office and to perform the duties of the same, for the following reasons:
Plaintiff prayed judgment that the defendant is not entitled to said office, and that he be ousted therefrom, and plaintiff be declared entitled to said office and put into possession of same, and for general and proper relief.
A demurrer was filed to said complaint, stating first; that the complaint did not state facts sufficient to...
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