State ex rel. Going v. Higginbotham

• Decision Date: 09 December 1907
• Citation: 106 S.W. 484,84 Ark. 537
• Parties: STATE ex rel. GOING v. HIGGINBOTHAM
• Court: Arkansas Supreme Court

106 S.W. 484

84 Ark. 537

STATE ex rel. GOING v. HIGGINBOTHAM

Supreme Court of Arkansas

December 9, 1907

Appeal from Craighead Circuit Court; Frank Smith, Judge; affirmed.

The State of Arkansas, on the relation of L. C. Going prosecuting attorney of the Second Judicial District, filed a complaint against Walter Higginbotham, alleging that, under the provisions of an act of the General Assembly, which became a law without the approval of the Governor on February 15, 1893, there was created and established the St. Francis Levee District, embracing all of the counties of Mississippi and Crittenden and parts of the counties of Craighead Poinsett, Cross, St. Francis, Lee and Phillips; that said act provided for the creation of a board of directors, to be appointed by the Governor, to control and manage the affairs of said district, and provided that said directors should be appointed, three each from the several counties named; that in March, 1905, the Governor appointed appellee a member of said board of directors from Craighead County; that appellee is a citizen and resident of Craighead County, but does not live within the bounds of said district, in fact living more than ten miles from the western boundary of said district that appellee, notwithstanding his disqualification to serve as an officer and director of said district, has undertaken and is now undertaking to usurp said office and to serve as an officer and member of said Board of Directors of St Francis Levee District, contrary to section four of article nineteen of the Constitution of Arkansas. Prayer that he be ousted from office, etc.

The court sustained a demurrer to this complaint. Plaintiff appealed.

Judgment affirmed.

L. C. Going, Lamb & Caraway and A. B. Shafer, for appellant.

I. A member of the Board of Directors of St. Francis Levee District is an officer within the meaning of art. 19, § 4, Const.; 23 Am. & Eng. Enc. Law, 322; 63 Am. St. Rep. 181; 72 Am. Dec. 179; 66 N.C. 59; 127 Ind. 365; 58 Am. Dec. 429; 68 N.C. 429; 32 La.Ann. 193; 43 Tex, 41.

2. The directors are county officers, and the action was properly instituted by the prosecuting attorney. Kirby's Digest, § 7984; Acts. 1893, p. 120; Id. 26, § 3; Id. 29, § 7; 69 Ark. 436. J. F. Gautney and N.W. Norton, for appellee.

I. The prosecuting attorney is not authorized to bring this action. Kirby's Digest, § 7985.

2.A levee director is not only not a county officer, but is not a civil officer at all, within the meaning of art. 19, § 4, Const. 55 Ark. 148; 3 Wall. 93; art. 5, § 13, Const.; 1 Pin. 182; 72 Ark. 94; Id. 230; Id. 180; 21 A. 546; 52 Wis. 628.

OPINION

HILL, C. J.

This is an action brought by the prosecuting attorney under section 7984 of Kirby's Digest against Higginbotham, a director of the St. Francis Levee District, seeking to have him declared ineligible to hold and keep the office of director or act as a member of said board of directors, on the ground that the said Higginbotham did not reside within the boundary of the St. Francis Levee District.

The complaint, which will be found in the statement of facts, sets forth fully the position of the appellant. In brief, the appellant contends that the directors of the St. Francis Levee District are officers within the meaning of section 4, art. 19, of the Constitution, providing that "all civil officers for the State at large shall reside within the State, and all district, county and township officers' within their respective districts, counties and townships."

This case primarily revolves two questions: First, is a member of the board of directors of the St. Francis Levee District a public officer? and, second, if so, is he a county officer? Before the prosecuting attorney can call for a 'decision of the question as to whether it is a public office, he must show that he has a right to question the authority of the director. He has no such right unless the director is a county officer, because it is only against county officers that the prosecuting attorney is authorized under section 7984 to proceed.

Let it be conceded, without being decided, that a director of the St. Francis Levee District is a public officer within the meaning of said provision of the Constitution; still the question remains paramount, whether the prosecuting attorney can oust him. Therefore, the first duty of the court is to ascertain what is a county officer within the meaning of sec. 7984.

In tile matter of Whiting, 2 Barb. 513, the court said: "There are certain officers that are very readily understood to be county officers; such as sheriffs, coroners surrogates, etc.; for...