Opinion
No. 5-1395
Opinion delivered November 25, 1957.
1. DRAINS — COMMISSIONERS, MANNER OF SELECTING. — Where a drainage district embraces land in more than one county, the law requires that the commissioners of the district be appointed by the circuit court, [Ark. Stats. 21-505 and 21-501]. 2. DRAINS — COMMISSIONERS OF SPECIAL DISTRICTS, MANNER OF SELECTING. — The elective term of office contemplated by the special act creating Cypress Creek Drainage District [Act 110 of 1911], held superseded by the appointive power granted under the general drainage law [Act 227 of 1927]. 3. CONSTITUTIONAL LAW — SPECIAL AND LOCAL LAWS — ACTS APPLYING TO A PARTICULAR DISTRICT. — Act 125 of 1939 applying only to the selection of Commissioners for Cypress Creek Drainage District, held invalid as a local and special act under Arkansas Constitution, Amendment No. 14. 4. DRAINS — COMMISSIONERS, APPOINTMENT OF — TIME WITHIN WHICH TO QUALIFY. — "W" was appointed drainage district commissioner in 1937, under the provisions of Act 227 of 1927, but did not take the oath of office until 1951. HELD: The circuit court's finding that he was a de jure commissioner by appointment was error. 5. DRAINS — COMMISSIONER — FAILURE OF SUCCESSOR TO QUALIFY. — Drainage district commissioner elected under the provisions of Act 110 of 1911, held entitled to hold the office until a successor should be appointed and qualified in accordance with Act 227 of 1927, [which superseded the prior act with reference to the selection of commissioners].
Appeal from Desha Circuit Court; Henry W. Smith, Judge; modified and affirmed.
Pat H. Mullis and Lloyd B. McCain, for appellant.
Smith Smith and Brockman Brockman, for appellee.
In this dispute over the office of commissioner of the Cypress Creek Drainage District the main issue is whether the office is appointive or elective. The appellee Warrington is the incumbent, having served as a member of the board of commissioners since 1916. He contends that the office, although originally elective, was changed to an appointive position by Act 227 of 1927, which made the general drainage district law applicable to districts created by special acts. Ark. Stats. 1917, 21-568. On this premise Warrington chose not to qualify as a candidate for the office in the general election of November, 1956, and the appellant Meador has apparently elected to the position without opposition. Warrington refused to surrender the office and promptly filed this action for a declaratory judgment in the matter. The trial court decided the issues in Warrington's favor, holding that the position is now appointive and that Warrington is "the duly appointed, qualified, and acting commissioner" of the district.
On the principal issue the circuit court correctly held that the 1927 act requires the office to be filled by appointment. This district was created by Act 110 of 1911, which provided an elective six-year term of office for the commissioners. But the 1927 statute brings all drainage districts under the general law, and that law requires the commissioners to be appointed by the circuit court when, as here, the district embraces land in more than one county. Ark. Stats., 21-505 and 21-501. The appointment is for a term of indefinite duration, there being a provision empowering the court to remove a commissioner for incompetency or neglect of duty, after notice and a hearing. Ark. Stats., 21-523.
We have held that the 1927 act was intended to provide a uniform system of drainage law. Berry v. Cousart Bayou Dr. Dist., 181 Ark. 974, 28 S.W.2d 1060. In a case that touches closely upon this one it was said that a proviso in the 192, act, to the effect that the act should not have the effect of displacing any commissioners then in office, meant only that the offices could not be filled by appointment until the expiration of the terms of office then in effect. Winton v. Bartlett, 181 Ark. 669, 27 S.W.2d 100. This statement plainly implies that, conversely, the appointive provisions of the general law became effective after the expiration of the terms that were in existence in 1927. It follows that the elective term of office contemplated by the special act creating this district has been superseded by the appointive power granted under the general drainage law.
We think, however, that the circuit court went too far in declaring in substance that Warrington holds the office as a de jure commissioner by appointment. It does not appear to have been realized by anyone connected with this district that the 1927 act changed the office of commissioner from an elective position to an appointive one. Warrington was re-elected after the effective date of the 1927 statute, and it was not until 1937 that he was appointed to the office by an order of the circuit court. It is not shown that Warrington complied with the general drainage law by taking within thirty days the detailed oath of office that the general law requires. After 1910 Warrington was again elected to six-year tents of office under the provisions of Act 125 of 1939, but the parties tacitly concede that this act was invalid, being a local act applying only to the Cypress Creek Drainage District. Ark. Const., Amendment 11. Warrington did take the prescribed oath of office on January 2, 1951, but this action was apparently taken because he had been elected to a six-year term in 1950. In these circumstances the filing of an oath almost fourteen years after the appointment did not change his status to that of a de jure commissioner by appointment. See Stiewel v. Fencing Dist. No. 6, 71 Ark. 17, 70 W. 308, 71 S.W. 217, and Boyett v. Cowling, 78 Ark. 191, 91 S.W. 682.
In holding that Warrington is not a de jure officer by appointment we do not intimate that his official acts over a period of years are for that reason open to question. We need not say whether he is a de facto commissioner, for in any event, as pointed out in the Boyett case, supra, he is entitled to the office on the basis that he holds over from his last valid elected term until a successor is appointed and qualified. This is not a proceeding under the statute for Warrington's removal, and we do not think it was the circuit court's duty, in this type of proceeding, to declare the office vacant. As we have said, however, the record does not support the finding that Warrington is the duly appointed, qualified, and acting commissioner, for, although duly appointed, he failed to file the required oath in a time and manner amounting to a compliance with the statute.
With the indicated modification the judgment is affirmed.
WARD, J., dissents in part.