Smith v. State ex rel. Duty

Citation199 S.W.2d 578,211 Ark. 112
Decision Date10 February 1947
Docket Number4-8141
PartiesSmith v. State, ex rel. Duty, Prosecuting Attorney
CourtSupreme Court of Arkansas

Rehearing Denied March 10, 1947.

Appeal from Benton Circuit Court; Ted P. Coxsey, Judge.

Reversed.

John W. Nance, for appellant.

Guy E. Williams, Attorney General, and Earl N Williams, Assistant Attorney General, for appellee.

OPINION

Holt J.

This action was instituted June 21, 1946, in the name of the State, in the Benton Circuit Court, by the prosecuting attorney of that district, against J. Frank Smith and Eli Leflar, challenging the right of each of these parties to serve as judge of the municipal court of the city of Rogers. The action is brought under what is known as the Usurpation Statute, §§ 14325-14332, Pope's Digest.

The petition, and amendment thereto, alleged that Rogers is a city of the first class and by ordinance May 5, 1946, established a municipal court in said city under the authority of §§ 9897-9912, inclusive, of Pope's Digest. It was further alleged that after the passage of the ordinance, the office of municipal judge was vacant and "the clerk of said municipal court called for an election of a judge by the attorneys and the respondent, Eli Laflar, was designated as said judge by the attorneys voting, . . . and that the respondent, Eli Leflar, is acting as judge of said municipal court," . . . and (at the time the suit was filed) "is assuming to act continuously as municipal judge and for the full term of two years until the next regular city election, by virtue of said election by the attorneys," and "that Rogers, Arkansas, is a municipal corporation of the first class and that the respondent, J. Frank Smith, is the duly elected mayor of said city, and as such mayor has been assuming to act as ex-officio judge of said municipal court and has tried and decided cases as ex-officio municipal judge. Petitioner states further that said respondent, J. Frank Smith, is also assuming to exercise criminal jurisdiction as judge of the mayor's court of said city of Rogers," and it was prayed "that the bench of the municipal court of the city of Rogers be declared vacant and that said court be declared as the court of sole criminal jurisdiction within said city, and for all other relief to which petitioner may show itself entitled."

Eli Leflar, one of the respondents, alleged that under the ordinance, supra, which he made a part of his response, he was the duly elected and qualified judge of the municipal court of Rogers, entitled to the office, and that J. Frank Smith is a usurper and prayed that the court so declare. Section 4 of the ordinance provides: "Immediately after passage and approval of this ordinance, the clerk of the court shall give notice to attorneys to elect a special judge to fill the existing vacancy, as provided for in § 9901 of Pope's Digest of the Statutes of Arkansas. Said special judge so elected by the attorneys shall receive the same salary as hereinabove provided for the regularly elected judge, and shall hold office until the next regular city election, at which time, and at each regular city election held every four years thereafter, a municipal judge shall be elected for a term of four years."

Mayor J. Frank Smith answered with a general denial, "and for affirmative defense states that the respondent, Eli Leflar, is assuming to exercise the jurisdiction and performing the functions of judge of the Rogers municipal court without legal right and is, therefore, a usurper."

Three resident citizens and taxpayers intervened and alleged, among other things, "that there is no municipal court in the city of Rogers, and (one) cannot at this time be formed . . , there being no legal authority for the institution of a municipal court in said city," and prayed accordingly.

The cause was submitted on the pleadings and an agreed statement of facts, the material portions of which were embodied in the judgment of the trial court. The judgment contained the following recitals: "The court further finds that the respondent, J. Frank Smith, is not entitled to assume the office of ex officio judge of said municipal court and that he was not a police judge at the time of the passage of said ordinance No. 292, and that he is not qualified under the law to hold said office. The court further finds that the respondent, Eli Leflar, is not entitled to hold the office of municipal judge under the law in that § 9901 of Pope's Digest applies only to the election of a special judge when the regular judge of the municipal court is unable to appear; that Eli Leflar was the regularly elected special judge only for those cases which were before the court at the time of said election, and his election by the attorneys did not constitute a filling of the vacancy in the office of...

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4 cases
  • Rockefeller v. Purcell
    • United States
    • Arkansas Supreme Court
    • October 30, 1968
    ...277 S.W. 45. For the purposes of this proceeding, the county election commissioners are certainly county officers. Smith v. State ex rel. Duty, 211 Ark. 112, 199 S.W.2d 578. In such a proceeding, it is clear that before one can question the title to an office, he has the burden of proving t......
  • Alldread v. Mills
    • United States
    • Arkansas Supreme Court
    • February 10, 1947
    ... ... from Monticello. The two vehicles collided on State Highway ... No. 81, and plaintiff received injuries and damages, the ... On the [211 Ark. 105] other hand, it is our duty, as an ... appellate tribunal, to exercise great care and caution in ... ...
  • Smith v. State, 4-8141.
    • United States
    • Arkansas Supreme Court
    • February 10, 1947
    ...199 S.W.2d 578 ... STATE ex rel. DUTY, Prosecuting Attorney ... No. 4-8141 ... Supreme Court of Arkansas ... February 10, 1947 ... Rehearing Denied March 10, 1947 ... ...
  • Beshear v. Clark, 86-245
    • United States
    • Arkansas Supreme Court
    • April 27, 1987
    ...the filing of a civil suit for usurpation pursuant to Ark. Stat. Ann. § 34-2201 through -2209 (Repl. 1962). In Smith v. State ex rel. Duty, 211 Ark. 112, 199 S.W.2d 578 (1947), a case in point, we held that the office of Judge of Municipal Court is a municipal office, not a county office, a......

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