{ "id": 1467040, "name": "Thomas v. Sitton", "name_abbreviation": "Thomas v. Sitton", "decision_date": "1948-07-05", "docket_number": "4-8586", "first_page": "816", "last_page": "822", "citations": [ { "type": "official", "cite": "213 Ark. 816" }, { "type": "parallel", "cite": "212 S.W.2d 710" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "6 S. W. 504", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "50 Ark. 81", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8720302 ], "opinion_index": 0, "case_paths": [ "/ark/50/0081-01" ] }, { "cite": "13 S. W. 845", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "53 Ark. 205", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1911650 ], "opinion_index": 0, "case_paths": [ "/ark/53/0205-01" ] }, { "cite": "256 S. W. 848", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "161 Ark. 574", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1388594 ], "opinion_index": 0, "case_paths": [ "/ark/161/0574-01" ] }, { "cite": "210 Ark. 30", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8717820 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/210/0030-01" ] }, { "cite": "103 U. S. 5", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1522301 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/us/103/0005-01" ] }, { "cite": "6 Wall. 385", "category": "reporters:scotus_early", "reporter": "Wall.", "case_ids": [ 3455321 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/us/73/0385-01" ] }, { "cite": "181 S. W. 128", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "121 Ark. 317", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1559410 ], "opinion_index": 0, "case_paths": [ "/ark/121/0317-01" ] } ], "analysis": { "cardinality": 473, "char_count": 9277, "ocr_confidence": 0.514, "pagerank": { "raw": 2.659986489667035e-07, "percentile": 0.8248359267277745 }, "sha256": "8289f8156ebd9872b8cdd14294a9245ff53412d2f4b9f4cda6f930d77495a0e4", "simhash": "1:c344c0e854258047", "word_count": 1631 }, "last_updated": "2023-07-14T14:58:24.264428+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Thomas v. Sitton." ], "opinions": [ { "text": "Holt, J.\nAppellee, Haskell Sitton, January 16,1948, filed \u201cPetition for Writ of Mandamus\u201d in the Van Bur\u00e9n Circuit Court, in which he alleged that he was the duly appointed and acting City Marshal of Clinton. \u201cThat he was employed by the City Council and has served in the capacity of Marshal since 1st day of May, 1946, and that he was serving as such Marshal in December, 1947; that his fixed salary was and is $250 per month payable semi-monthly on the 1st and the 15th of each month; that the said city paid him until December, 1947, and that the respondent, (appellant) J. A. Thomas, who is the City Treasurer and whose duty is to pay all officers and to pay this petitioner herein, refused to pay him for his month\u2019s work performed in December, 1947; that on January 12, 1948, the City Council passed \u00e1 resolution to pay his salary for the month of December, 1947; that the respondent failed and refused to pay same, notwithstanding this resolution; and that there is sufficient money in the treasury with which to pay the salary of the petitioner herein. . . . \u201d\nCopy of the resolution, supra, was made a part of the petition.\nAppellee prayed for Writ of Mandamus, directing and compelling appellant \u201cas Treasurer of the City of Clinton to issue and deliver to the petitioner h\u00e9rein, (appellee) check for $250 in payment of his December salary, etc.\u201d\nAppellant, Thomas, answered with a general denial and specifically pleaded: \u2018 \u2018 That the . . . council of the City of Clinton, . . . Clinton being a city of the second class, . . . has never, at any time, had the power or authority to hire, elect or appoint a city marshal for the City of Clinton, or to constitute any person an employee to perform the duties of city marshal; . . . that the plaintiff, Iiaskell Sitton, is not now, nor was he at any time during his alleged employment, or on January 12, 1948, a resident of the City of Clinton; . . . that plaintiff has heretofore been paid more by the City of Clinton than he was entitled to either under his alleged employment or under the law which prescribed the compensation for marshals of cities of the second class. \u2019 \u2019\nUpon a hearing, the trial court granted appellee the relief prayed and directed appellant, Thomas, as treasurer of the City of Clinton, to issue and deliver to appellee check for $250 in payment of his December salary.\nThis appeal followed.\nFor reversal, appellant argues: \u201c1. That said city does not owe Iiaskell Sitton any sum whatever, . . . because he has never at any time before January, 1948, resided within the limits of the City of Clinton, and was, therefore, but a de facto city marshal and not legally entitled to compensation for his services as city marshal. 2. Because, while the law provided for the election of a city marshal, he was appointed or employed by a . . . city council which had no authority to appoint or employ a city marshal or to fill a vacancy in the office of city marshal. 3. Because the city, through its council', has already paid the said Haskell Sitton at least the sum of $500 in excess of the salary fixed at the beginning of his term by way of increases of salary contrary to a statute prohibiting increases. 4. Because, the Legislature having fixed the compensation of marshals of cities of the second class, there was, in the absence of other provision therefor, no authority for the council to fix his salary, Clinton being a city of the second class.\u201d \u2022\nThe material facts appear not to be in dispute. Clinton is a city of the second class. Appellee, Sitton, admitted that he had never resided in the City of Clinton and was not a qualified elector therein.\nAt the outset, it becomes necessary to determine whether, in the circumstances here, the position held by appellee, Sitton, was that of an officer or an employee. In other words, whether the position of marshal of the second class city of Clinton was a public office. We hold that the position was that of an officer and not that of an employee and constituted a public office.\nSection 9810 of Pope\u2019s Digest provides that \u201cthe qualified voters of each city of the second class shall, . . . elect a city marshal, . . . Each of said officers shall continue in office until his successor is elected and qualified, and shall have such powers and perform such duties as are prescribed in this act, or as may be prescribed by any ordinance of such city, not inconsistent with the provisions of this act.\u201d\nSection 9801 provides that: \u201cThe qualified voters of cities of the second class shall, on the first Tuesday in April, in the year eighteen hundred and eighty-eight, and on the same day every two years thereafter, elect . . . one city marshal, etc. \u2019 \u2019\nSection 9577 requires all officers (which includes marshals) elected or appointed in any municipal corporation to take the oath prescribed by'the Constitution of this State for officers, and all such officers may be required to make bond for the faithful discharge of their duties.\nSection 9812 prescribes tbe powers and duties of marshal of cities of the second class, and provides that \u201che shall, in the discharge of his proper duties, have like powers, he subject to like responsibilities, and shall receive the like fees as sheriffs and constables in similar cases.\u201d\nSection 9811 classifies a marshal as an officer in this language: \u201cWhenever a vacancy shall occur in the office of recorder or marshal in any city of the second class from any cause, the city council shall, . . . proceed to elect . , . . a marshal to serve for the unexpired term. \u2019 \u2019\nUnder the above sections of the statute, it is made plain that the position of marshal has all the elements of an office and meets the necessary tests set out in Rhoden v. Johnston, 121 Ark. 317, 181 S. W. 128. There, thig court said: \u201cAn apt definition is given by the Supreme Court of the United States in the case of United States v. Hartwell, 6 Wall. 385, 18 L. Ed. 830, as follows: \u2018An office is a public station or employment, conferred by the appointment of government, and embraces the ideas of tenure, duration, emolument, and duties.\u2019\n\u201cThe same court, in Hall v. Wisconsin, 103 U. S. 5, 26 L. Ed. 302, said: \u2018Where 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\u2019.\u201d\nWe held in the recent case of Moncus v. Raines, 210 Ark. 30, 194 S. W. 2d 1, that a town marshal, of an incorporated town, under \u00a7 9799, was a public officer.\nIt is obvious that the powers, duties and responsibilities of a marshal of a city of the second class, under \u00a7 9812, are as broad and numerous as those of a town marshal under \u00a7 9799, supra. The provisions of both sections are practically identical. In wording, they are, in effect, the same.'\nIt must necessarily follow, therefore, that a marshal of a city of the second class and a town marshal of incorporated towns are officers under the meaning of Art. 19, \u00a7 3 of our Constitution. That section provides: \u201cNo person shall be elected to or appointed to fill a vacancy in any office who does not possess the qualifications of an elector. \u2019 \u2019\nAppellee, Sitton, having never resided in the City of Clinton was not eligible to hold the office of city marshal.\nIt is undisputed that he was employed by the City Council of Clinton May 1, 1946, to serve as marshal at $175 per month, and thereafter in September, his salary was raised to $200 per month. He continued to act and receive this salary up to January 1, 1947, but thereafter for each month of 1947 he was paid $250, except for the month of December when payment to him was stopped by order of the mayor. As above indicated, the City Council of the City of 'Clinton was without authority to employ appellee, Sitton, as its marshal, since, as pointed out, the Legislature has provided that such marshal shall be elected by the qualified voters of the city (\u00a7 9801, Pope\u2019s Digest), or in case of a vacancy in the office of marshal by a majority vote of the City Council (\u00a7 9811). At most, he was but a de facto officer, under color of his appointment by the City Council. We held in Hill v. Rector, 161 Ark. 574, 256 S. W. 848, that: (Headnote 2) \u201cA de facto officer has no right to the emoluments of an office the duties of which he performs under color of an appointment but without legal title.\u201d The City of Clinton, therefore, does not owe appellee anything.\nEven if appellee were eligible to hold the office of marshal and had been appointed by the Council to fill a vacancy under \u00a7 9811, supra, his position would not be improved here for the reason that the term of his office would not have expired until April, 1948, and his salary increases (far in excess of the amount here involved) received by him since his initial appointment, May 1, 1946, have been in violation of the provisions of \u00a7 9581, which prohibits any increase during the term of his appointment as indicated. Barnes v. Williams, 53 Ark. 205, 13 S. W. 845, and Weeks v. Texarkana, 50 Ark. 81, 6 S. W. 504.\nFor the error indicated, the judgment is reversed and the cause dismissed.", "type": "majority", "author": "Holt, J." } ], "attorneys": [ "J. F. Koone, for appellant.", "O'pie Rogers, for appellee." ], "corrections": "", "head_matter": "Thomas v. Sitton.\n4-8586\n212 S. W. 2d 710\nOpinion delivered July 5, 1948.\nJ. F. Koone, for appellant.\nO'pie Rogers, for appellee." }, "file_name": "0816-01", "first_page_order": 832, "last_page_order": 838 }