Wood v. Miller

• Decision Date: 26 June 1922
• Docket Number: 84
• Parties: WOOD v. MILLER
• Court: Arkansas Supreme Court

242 S.W. 573

154 Ark. 318

WOOD v. MILLER

No. 84

Supreme Court of Arkansas

June 26, 1922

Appeal from Jefferson Circuit Court, W. B. Sorrels, Judge; reversed.

Judgment reversed and cause remanded.

Reinberger & Reinberger, for appellant.

Appellant had the right to maintain the suit, his successor not having been elected and qualified. Acts 1917. Act 209, sec. 3 p 1127. The period between the expiration of his term and the election and qualification of his successor is as much a part of his term as the fixed statutory period. 14 L. R. A. 858.

Appellee was not eligible to hold the office, as his doing so would contravene art. 5, par. 10 of the Constitution.

The office is a civil office under this State. Words and Phrases Vol. 2, p. 1198, citing 102 Iowa 639; 41 Mo. 29 and 18 Sou 157.

Caldwell, Triplett & Ross, Taylor & Jones, Powell &Alexander, and Danaher & Danaher, for appellee.

The office of municipal judge is not "an office under this State." 72 Ark. 180; 72 Ark. 230.

Appellant had no right to maintain the suit, being in the nature of quo warranto proceedings, which can only be brought by the Attorney General. 1 Ark. 279; 27 Ark. 12; 22 L. R. A. (N. S.) 810.

Appellee, assuming to act under an election authorized by law, had color of title to the office and could not be an usurper within the meaning of the statute. 133 Ark. 519, therefore the action could not be maintained under sec. 10326, C. & M. Digest.

OPINION

MCCULLOCH, C. J.

This is an action instituted by appellant against appellee in the circuit court of Jefferson County to recover the office of judge of the municipal court of the city of Pine Bluff. The action is founded on the statute commonly known as the usurpation statute, which reads as follows:

"Whenever a person usurps an office or franchise to which he is not entitled by law, an action by proceedings at law may be instituted against him, either by the State or the party entitled to the office or franchise, to prevent the usurper from exercising the office or franchise." Crawford & Moses' Digest, sec. 10326.

Appellant was elected to the office in question for a term of two years at the regular municipal election on April 6, 1920, and holds over until his successor is elected and qualified.

Appellee was elected to the office at the regular municipal election on April 4, 1922, and claims the office and the right of exercising the functions thereof under said election.

Appellee was duly elected at the regular election on the__day of November, 1920, as representative from Jefferson County in the General Assembly, and the contention of appellant is that appellee is ineligible to the office of municipal judge by reason of the fact that he was so elected to the office of representative and that the time for which he was elected has not expired.

There is no dispute as to the facts, for the court sustained a demurrer to the complaint, and the facts stated therein must be taken as true.

The Constitution (art. 5, § 10) reads as follows: "No senator or representative shall, during the time for which he shall have been elected, be appointed or elected to any civil office under this State."

The first question presented is, whether or not appellant has the right, under the facts stated, to maintain a suit challenging appellee's right to take the office.

The usurpation statute was a part of the Civil Code of Procedure enacted in 1868, and in the case of Lambert v. Gallagher, 28 Ark. 451, this court held that the statute was sufficiently broad in its terms and effect to include ordinary election contests for office. Subsequently, exclusive and original jurisdiction in contested election cases for county and township offices was conferred upon county courts (Crawford & Moses' Digest, § 3850), and this court held that the later statute amended the usurpation statute to the extent only that it relates to contested county and township offices, but that it is still in force, as construed in Lambert v. Gallagher, supra, as to contests for municipal offices where no other jurisdiction is conferred by statute. Whittaker v. Watson, 68 Ark. 555, 60 S.W. 652.

In the case of Wheat v. Smith, 50 Ark. 266, 7 S.W. 161, construing the usurpation statute, this court said: "The design of these provisions is to enlarge the remedy formerly afforded by information in the nature of quo warranto. * * * * It opens the way for the person who would have been the relator in an action by the State under the common-law practice to institute the proceedings to test his title to an office in his own name, without leave of court, or the intervention of the State or one of her officials, as a party. * * * * It is operative in so far as it is not inconsistent with the jurisdiction conferred on the county courts."

This is not, in fact, a contest of an election, for, as said in Wheat v. Smith, supra, there is nothing to contest concerning the result of the election. Appellee was elected, as conceded, but appellant is contesting his eligibility to hold the office, and he has the right to do so.

Where the legal incumbent of an office is authorized by law to hold over after expiration of the term until his successor is elected and qualified, the period of his holding over is as much a part of the term as the regular period fixed by law. Kimberlin v. Tow (Ind.), 14 L.R.A. 858. He has the legal right during that period to protect his incumbency from one who unlawfully invades it or to sue an usurper to recover it.

Counsel for appellee rely on the decision in Ferguson v. Wolchansky, 133 Ark. 516, 202 S.W. 826, but that case does not support the contention. That was a contest for the office of school director, and we held that it was a county office within the meaning of the statute conferring jurisdiction on the county court. We held also, in Condren v. Gibbs, 94 Ark. 478, that a road overseer was a county officer, and that a contest for that office fell within the jurisdiction of the county court. The case of Lucas v. Futrall, 84 Ark. 540, 106 S.W. 667, is also decisive of appellant's right under the statute to bring this action.

Counsel also contend that appellant has surrendered the office...