Ackley v. Perrin

STOCKSLAGER, J.,

Dissenting. — I do not question the power of the board of prison commissioners to remove the warden of the penitentiary at a regular meeting of such board.

I also think it is beyond dispute that a majority of the board may remove the warden at either a regular or special meeting. The only serious question presented to us is the power of the Secretary of State and the attorney general to act in the absence of the governor, who is by law the president of the board, in the absence of any showing that an effort of any kind had been made to procure his presence. It is shown that the president of the board was absent from the state, but there is an entire failure to show that any means were resorted to to notify him of the intended meeting and that his presence was desired. If there had been a showing that an effort had been made to locate the governor and procure his presence, and that all efforts had failed, I think it would be sufficient to warrant the action of the majority of the board to meet and transact such business as seemed a pressing necessity. So far as the sufficiency of the notice is concerned, I am of the opinion that a telegram, a letter or a personal notice by telephone inform*538ing him of the urgent necessity of a meeting of the board, giving him sufficient time to reach the. place designated as the meeting place of the board, would be sufficient in law. In other words, if it were shown that the president of the board had been given an opportunity to be present, and refused or neglected to attend the meeting, all parties interested would be es-topped from complaining of the action of the majority of the board. I am not without authority in insisting that the majority of the board could not legally act without an effort to have the third member present. In School Dist. No. v. Bennett, 52 Ark. 511, 13 S. W. 132, the principle under consideration here is discussed. It is said: "The public select each member of the board of directors, and is entitled to his services. This it cannot enjoy if two members can bind it without receiving, or even suffering, the counsel of the other. Two could if they differed with the third, overrule his judgment, and act without regarding it; but he might, by his knowledge and reason, change the bent of their minds, and the opportunity must be given him. We conclude that two directors may bind the district by a contract made at a meeting at which the third was present, or of which he had notice; but no contract can be made except at a meeting, and no meeting can be held unless all are present, or unless the absent member had notice.”

To the same effect, see Burns v. Thompson, 64 Ark. 489, 43 6. W. 499; School Dist. No. 49, Falhner Co. v. Adams, 69 Ark. 159, 61 S. W. 793; Jackson v. Collins, 41 N. Y. St. Rep. 590, 16 N. Y. Supp. 651-653.

A very interesting and instructive case is reported in 5 Colo. App. 156, 38 Pac. 332, entitled People v. Carver. The action was for the purpose of trying the title to the office •of general road overseer of Douglass county. The statute provides for the division by the board of county commissioners of their counties into suitable road districts as in their judgment will best subserve the interests of the people, and that at their .January meeting shall by resolution appoint a general road overseer for the county who may be removed by the board for reason satisfactory to them. It seems the relator was removed by two members of the board. It is said two of the commis*539sioners after the organization assumed to hold a meeting at which the third was not present, and of which he had no knowledge, and adopted a resolution removing the relator and appointing the defendant. This action cannot be upheld. It was clearly without authority of law. The removal and appointment were both illegal. The Colorado court goes to the extent of holding that an officer cannot be removed at a special meeting, unless all members are present. The language of the opinion is as follows: “But as the statute does not confer upon any one member the authority to call such meeting, and as it belongs to the board alone to judge of the propriety of holding it, and their judgment can be expressed only after they come together, to make the meeting one at which such expression can be given, all the members must be present.”

The case of Schwauback, Auditor, v. Smith, reported in 15 Colo. 64, 24 Pac. 575, holds to the same rule.

In Schuerman v. Territory of Arizona, 184 U. S. 342, pp. 353, 354, 22 Sup. Ct. Rep. 406, 46 L. ed. 580, an opinion by Mr. Justice Peckham on appeal from the supreme court of Arizona Territory, we find a similar question discussed. It is shown that a board known under the territorial statute as the “Loan Commissioners of the Territory of Arizona,” consisting of the governor, auditor and secretary of the territory, should constitute such board. It seems that two members of this board funded certain bonds of the territory during the absence from the territory of the third member. Mr. Justice Peckham says: “The record does not show that the absent commissioner had not been notified to attend the meeting at which the bonds were funded. It is not to be presumed that notice of the intended meeting was not given. Under the provisions of the territorial act the proceedings of the board of loan commissioners were legal.” It will be observed that under the territorial statute creating this board, subdivision 2 of section 2932 provides for action by a majority of three or more public officers to whom a joint authority is given. In my opinion the peremptory writ of mandate should have been denied.