ARk.] BOYD V.' DRACE: 571 BOYD V. DRAGE. Opinion delivered June 27, 1927. HIGHWAYS=FETITION FOR . ROMOVAL OF, COMMISSIONER.=41 Stition• for . removal of a highway commissioner, under Acts 1925, P . 320, § 9, .amending Road Laws 1919, vol. 1, P . 1130, which provided that any commissioner who had lost the confidence, of the landowners • should be removed if a petition was presented, signed by 75 per cent. , Of the landowners in his. division or the road improvement •. district, held insufficient, where it did not allege that the commissioner had lost the confidence of . 75 per cent..of the resident landowners of his, division of the district. .Appeal from Poinsett Circuit Court; Basil ,Baker,: Special Judge ; reversed. • E. L. Westbrooke and C. T. Carpenter, for appellant. 4aron McMullin; J. G , . Wasorn and Gautney & ley,, for appellee.. . . HUMPHREYS, J. This is an. application in the form of petitions to the county court of Poinsett County, under § 9. of act No. 106 of the . Acts of 1925,.,amending act No. 277 of the. Acts nf 1919,. to remove appellant as a cora- - missiOner of the Ozark Trail Road Improvement District of ,Poinsett County. The amendatory act provided ,for five:commissioners instead of three, two of whom should be resident landowners in, the western part of the district and three resident, landowners in the eastern part of the district. Appellant was one Of the three commissioners named in the amendatory act for the eastern , part of the diStrict. * Section 9:of the Amendatory act, under which proceedings to oust hiM as commissioner were , begun, follows : "Any commissioner of tliis diStrict who has lost the confidence of the' landowners of his di y isiOn of this district as established in § . 1 of this act,. shall be removed and his . successOr appointed by the county court, if a petition calling therefor is presented tO the court, Signed by 75 per cent. of the landowners 1Vithin his diviSion of this dis-• trict. Such a petition shall not only call for the remOval of the commissidner but Must AlSo name his successor, and it is hereby made mandatory on the county judge
572 Boy]) v. DRACE. [174 both to remove and to appoint his successor named in said petition. However, before removing any commissioner on petition, the county judge shall give notice to the commissioner concerned of . the petition, who shall haVe at least ten days in which to examine the petition, after which time the county court shall consider tbe petition and . shall determine that it contains at least the required number of resident landowners of his division of the district. At this hearing the commissioners concerned shall have the right to be present and have counSel. Likewise, the Sounty judge shall, on a petition 'signed by 75 Per cent, of the landowners, fill any vacancy which may occur on said board." • Seven petitions in all were filed, four on September 5 and two on September 9, 1.925, and ohe on the 9th daY of March, 1926. After the six petitions were filed in Sep-tember, 1925, the jndge issued the notice directed by the statute to appellant, bat same was not served upon him and no hearing wAs had upon them pursuant to such notice. ; After the petition was filed on the 9th day of Marsh, 1926, the cOunty judge issued a notice to appellant that the conrt would consider the petitions mi the 17th:day of 'April, 1926. On that day the seven petitions were consolidated, over the objection and exception of appellant.' Each petition, omitting the signatures, is as follows : , "We, the undersigned, state that we are resident landowners . of that division of tbe Ozark Trail Road Improvement District which lies east of the range line separating range six and seven east, and we hereby' respectfully petition your Honor, as county . judge of Poinsett County, to remove E. B. Boyd as a member of the board of commissioners of said road improvement district and to appoint in his place and stead . J. L Drace of Deckerville as a member of such board of commissioners." •Appellant then filed - the following demurrer to the several petitions :
AR I K.] BOYD. v. DRACE.-573,- • "Comes .Boyd, the • commissioner whose removal is 'sought in various petitions filed in, the office - of the county • clerk, and demurs , each of the several petitions . filed, for the reason that no one 'of the- said • petitions allege the . statntory Canse fOr the removal of a' commissioner, namely, that he has* . Inst 'the 'confidence of 75 •per cent of the resident landowners of his division of the district." • additiOn . to the demurrer a number of defenses were interpoSed by Motion: The Cause waS heard by the county cOurt upon the' censOlidated petitions; 'demurrer • • and . MotiOns, resulting ih the overruling . of the demurrer • and the motions and a 'judgment removing appellant as a cOmmissioner and the . appointment of J: L. prace as his succe• ssor. An appeal was duly . p . i:O.s ecitted to the cireuit court from the -judginent. - Whe . n . the cause was • called • in • tlie - circuit conit; appellant renewed his demurrer, which was overruled.by.• the court, over 'his objectiOn' and exeeption. r All . the • defensea interposed in the county court and . several addi; tional inies'were presented 'in the .eirenit court . On a trial - de . yoV6; with the' . result that' the judgment of the COunty courtWaS in all things . a . ffirthed, from whieh is this' appeal: In . stating the case we haVe . not set out all of the defenseS: interposed by appellant to the consolidated poti-tiOns, as we think the court erred in. overruling ' appel-. lant's demurrer to' them'. The Petition's failed to state the 'statutory canse of. actimi • for 'the removal . Of appellant. It was not charged in the petitionathat 75 per Cent: - of the resident landowners in the eastern end Of the dis- • trict had lost confidence in appellant. This . was the sole, statutory ground upon which 'appellant conld "be oustek. and such charge should have been preferred by the- peti.-. tion: The Legislature homed the commissioners, and the intent was that each was to continue to act in the capacity of such commissiOner as long : as be retained, the confi; deuce of ove'r 25 per cent. of the -resident owners of real estate hi his end of the distria. It was clearly the intent of the.Legislature not-to allow • -the commissioners te .be
574,: BOYD V: DRACE. [174 removed 011 the ground of unpopularity merely, or because they advocated some particular character of construction, or:for any ground except the loss of , confidence inithem by at least 75 per cent.-of , the landowners residing in:that part of the district , from which the commissioner was appointed.. Although the -Legislature recognized the right of the resident landowners in each end of the district to control tbe tenure of the term of each commissioner, should as many as 75 per cent. of them lose confidence:in -one :of the commissioners, it did not vest them with the power to remove a commissioner at will. In.all fairness to the signers of . the petitions, as well as a commissioner against whom the petitions were being circulated, the , charge . should have been Clearly stated. If the petitions had, stated that the signers had lost confi7I dence in the commissioner, many of them might not have signed them... The circuktion of petitions without any specific . charge in them would allow the circulators to obtain ,signatures on any ground they could and would permit resident landowners to sign the , petition just because they.did not ‘ want him, even though they retained. confidence in him. The petitions extended too large a leeway to the signers thereof and too much latitude to the active opponents of the commissioner. We think the petitions should have shown on their face that the sign-or§ thereof.had lost confidence in appellant in order to state, a cause. of action for his removal. - Appellee cites the case of Frazier v. Kibler, 145 Ark. 517, 224 S. W. 960, ias an authority in point to uphold the sufficiency °If the petitions. It is true that the petitions for the removal of:the board of commissioners in the case cited did not 'allege any cause for the removal, but ;the statute upon which the petitions were based authorized a removal of the commissioners hy. a majority of the real propertrowners they were the owners of a majority of the acreage, or more than 50 per cent, of the lands in the district, upon request. It was not necessary to incorporate. any charge in the petitions, because the statute - did not require that removal be made for cause. In *the instant
-case the statute .did require that, if a removal were made, it must be for la cause specified. • Tn, the Kibler case the decision was . based upon, the fact. that, tke,commissioners could be removed without cause, .and for-that, reason it was not neces -sary to allege any cause._ The Kibler case is not .parallet with, the .instant case and . aoes. not rule it. .0n. account of the error indicated , the •judgment is reversed, and the cause is remanded with directions to sustain . the demurrer Ito the petitions and- dismiss them. .• Justices WOOD, SMITH and Mc1 . 1AxE y• concurring.. •
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.