School District Number 54 v. Garrison

• Decision Date: 03 May 1909
• Citation: 119 S.W. 275,90 Ark. 335
• Parties: SCHOOL DISTRICT NUMBER 54 v. GARRISON
• Court: Arkansas Supreme Court

119 S.W. 275

90 Ark. 335

SCHOOL DISTRICT NUMBER 54 v. GARRISON

Supreme Court of Arkansas

May 3, 1909

Appeal from Howard Circuit Court; James S. Steel, Judge; reversed.

Judgement reversed and cause remanded.

J. W Bishop, for appellant.

Temporary removal, as applied to leaving a homestead, means a removal for a fixed and temporary purpose, or for a temporary reason. 62 N.W. 426; 89 Wis. 558; 90 Wis. 362. A vacant office is an office without an incumbent, and an old office is vacated by death, resignation or removal. 18 S.W. 784; 108 Mo. 153; 48 Ark. 82. Notice of called meetings must be given in writing to each member of the board, and must state the time, place and purpose of the meeting. 64 Ark. 489; 69 Id. 159.

W. P Feazel, for appellee.

Appellant's failure to bring out in his abstract the errors complained of in his motion for a new trial should be taken as a waiver of them. 84 Ark. 555; 75 Id. 571. A contract made by two directors, if there are only two, is valid. 73 Ark. 197.

OPINION

FRAUENTHAL, J.

On March 16, 1907, R. H. Waggoner and John L. Cook, as directors of School District No. 54 of Howard County, Arkansas, entered into a written contract with J. T. Garrison, the plaintiff, by which they did, on behalf of said school district, employ him to teach a common school in said district for a term of six months, commencing on the 4th day of November, 1907, at a salary of $ 60 per month. On the date specified in the contract for the beginning of the term of school, he offered his services to teach the school in compliance with the contract; but the directors refused to permit him to do so. Thereafter, in July, 1908, he instituted this suit to recover from the said school district the entire amount of the six months' salary, less such sums as he had been able to earn during that time. The defendant made answer, claiming, among other defenses, that the contract was invalid because the two directors who signed the contract were not the sole directors of the district; and that the contract was entered into at a special meeting at which the third director of the district was not present, and of which he had no notice. Upon the trial, a verdict was returned in favor of plaintiff, from which defendant has appealed to this court.

It appears that Booker Wakley, R. H. Waggoner and John L. Cook had been elected directors of said school district, and that on February 16, 1907, Booker Wakley moved out of the district a mile and a half or two miles to make a crop, and did not move back until about four or five months later. It is contended by plaintiff that by this removal the office of Wakley as director of said district became vacant, and the remaining two directors had a valid right, until this vacancy was filled, to act and contract for said school district. It is necessary first, therefore, to determine under what circumstances the office of a school director becomes vacant by his moving from the district.

Under the policy of our school laws it is deemed best for the interests of the common school districts that they should have the service and counsel of three directors. It is provided that three directors shall be elected to constitute the school board; and, while it is also provided that two of them may transact the business of the school district under certain conditions, it is nevertheless required that due notice in writing must be given to each director of any special meeting called for the transaction of such business.

Our courts have wisely and strictly enforced this requirement, believing it was so provided by the law, and that the educational interests of the school district would be best subserved by giving to each director a full opportunity to attend each meeting of the school board, so that the district should have the advantage of his counsel. And so, by statute, a penalty is inflicted upon any person who shall have been elected director and shall neglect or refuse to qualify and serve; and also upon the director who shall neglect or fail to perform any duty of the office. But the office does not become vacant by mere neglect of or failure to perform these duties. It is true that the incumbent of the office can abandon the office and thus create a vacancy, and such abandonment may occur through resignation or removal from the district. The authorities seem to be in accord in holding that an office cannot be abandoned without the actual intention on the part of the officer to abandon and relinquish the office. The relinquishment of the office must be well defined, and it is not produced merely by nonuser or neglect of duty. The officer must clearly intend an absolute relinquishment of the office; and a removal from the district, if only temporary, would not evince such intention. The nonuser, or neglect of duty, or removal from the district, in order to amount to a vacation of the office, must be not only total and complete, but of such a continuance as to make it permanent, and under such circumstances so clearly indicating absolute relinquishment as to preclude all future questions of fact. Otherwise there must be a judicial determination of the vacancy of the office before it can be so declared. 29 Cyc. 1405; Barbour v. United States, 17 Ct. Cl. 149; State v. Allen, 21 Ind. 516; Page v. Hardin, 47 Ky. 648, 8 B. Mon. 648; Attorney General v. Maybury, 141 Mich. 31; 25 Am. & Eng. Enc. Law, 62.

Now, in this...