121 Ark. 317 | Ark. | 1915
There is a road laiw in operation in Conway County which was specially enacted by the General Assembly of 1911. Session Acts, 1911, p. 417. Section 4 of the statute reads as follows:
“The county court of said county, at the October term in each year, shall contract with suitable persons for the improvement, working and keeping in repair the several roads and highways of the county, by districts, as shall have been designated ; and, in case suitable persons can not be contracted with during said term, the county court, or the judge thereof in vacation, may thereafter, from time to time, contract with persons for such work, repair and improvements as aforementioned; which said contract shall be filed in the office of the county clerk, and by him preserved. The person or persons so contracted with shall be the overseer of such roads or road district covered by his contract and shall have the power 'and legal authority to warn out and work all persons subject bo road duty who may be apportioned to such roads and road districts covered by .such contract, and to collect 'all money paid by such persons in lieu of and for labor on such roads. Such contractor .shall give bond in sufficient sum to be fixed by the county court or judge thereof in vacation, conditioned that he will faithfully perform the terms of his contract, keep and properly care for .all tools and other property of the county coming into his hands as such, and turn the same over to his successor at the termination of his contract which contract shall not be for a period exceeding one year, and to account for and turn over to the county court all money collected due the county from free labor .and from all other sources.”
Other sections of the statute provide that ‘ ‘ said contractor shall keep such road or roads of his district in the condition required by the county court, or judge thereof in vacation; ’ ’ and that the county court shall have power to remove any contractor 'and revoke the contract any time for reasonable cause, and the county courts “.shall not pay such contractor for any services rendered under such contract or money paid out until such contractor shall present to the county court ia full and complete statement showing all moneys collected .since filing his last statement,” etc.
Pursuant to the terms of the statute the county court of that county entered into a written contract with .appellee J. M. Johnston to work the roads in a certain district in the county for ,a period of one year. The contract provided that appellee should receive a.s- his compensation for the discharge of his duties under the contract * ‘ a sum equal to $1.50 per day of eight hours for each day or part thereof when engaged in actual discharge of his duties as such overseer, and shall receive such .further sums as he may pay out on contracts for hands and teams used in work on said roads, each team to be at $2 a day and each hand not exceeding $1 .a day, which said amount shall be the full- iand complete compensation of said overseer under this contract. ’ ’
This action was originally instituted by appellee in the chancery court against the county judge and Luther Venable, 'alleging that they were attempting to oust him from his office as road overseer and were interfering with him in the performance of his duties of the office, .and he prayed that they be restrained from so doing. He also prayed for a mandatory injunction 'compelling (appellants to return to him all the road tools belonging to the county which had been taken from him. The temporary restraining order wias issued pursuant to the prayer of the complaint, but subsequently an amended complaint was filed stating in substance the same facts, and asking that the cause be transferred to the circuit court. The order of transfer was made and the cause tried in the circuit court, and was treated there as .an action against the county judge and Venable for the recovery of the office of road overseer, which it is alleged appellant Venable is unlawfully holding contrary to the rights of appellee. Final judgment was rendered by the circuit court ousting Venable from office and restoring appellee thereto.
The same court, in Hall v. Wisconsin, 103 U. S. 5, said: “Where an office is created, the law usually fixes the compensation, prescribes its duties, and requires that the appointee shall give a bond with sureties for the faithful performance of the service required.”
The Supreme Court of Mississippi, in Shelby v. Alcorn, 36 Miss. 273, gave a definition which has met our approval, as follows: “And we apprehend that it may be istated as universally true, that where an employment or duty is a continuing one, which is defined by rules prescribed by law and not by contract, such a charge or employment is an office, and the person who performs it is an officer.”
In United States v. Maurice, 2 Brock. 96, Chief Justice Marshall said: “Although an office is ‘an employment,’ it does not follow that every employment is an office. A man may certainly be employed under a contract, express or implied, to do /an act, or perform a service, without becoming an officer. ’ ’
■Counsel for appellee insist that we have heretofore decided that a road overseer .under the statutes of this State is a public officer. We decided in the case of Condren v. Gibbs, 94 Ark. 478, that a township road overseer is a public officer, hut that was under a different statute from the one now under consideration and that decision has no application to the present case.
The judgment in this case is reversed and the cause dismissed.