{ "id": 1614155, "name": "Sitton v. Burnett", "name_abbreviation": "Sitton v. Burnett", "decision_date": "1950-02-06", "docket_number": "4-9058", "first_page": "574", "last_page": "578", "citations": [ { "type": "official", "cite": "216 Ark. 574" }, { "type": "parallel", "cite": "226 S.W.2d 544" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "1 Pennewill, 597", "category": "reporters:state", "reporter": "Pennewill", "opinion_index": 0 }, { "cite": "43 A. 522", "category": "reporters:state_regional", "reporter": "A.", "pin_cites": [ { "page": "524" } ], "opinion_index": 0 }, { "cite": "35 S. W. 2d 1020", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "183 Ark. 271", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1441824 ], "opinion_index": 0, "case_paths": [ "/ark/183/0271-01" ] }, { "cite": "7 S. W. 161", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "50 Ark. 266", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8721860 ], "opinion_index": 0, "case_paths": [ "/ark/50/0266-01" ] }, { "cite": "28 Ark. 451", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1884402 ], "opinion_index": 0, "case_paths": [ "/ark/28/0451-01" ] }, { "cite": "55 S. W. 856", "category": "reporters:state_regional", "reporter": "S.W.", "weight": 2, "opinion_index": 0 }, { "cite": "67 Ark. 484", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1152571 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/67/0484-01" ] }, { "cite": "122 A. L. R. 977", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "198 Ark. 235", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1459824 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/198/0235-01" ] }, { "cite": "115 N. E. 166", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "277 Ill. 20", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4864410 ], "opinion_index": 0, "case_paths": [ "/ill/277/0020-01" ] }, { "cite": "207 Ark. 724", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1481756 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/207/0724-01" ] }, { "cite": "213 Ark. 816", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1467040 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/213/0816-01" ] } ], "analysis": { "cardinality": 450, "char_count": 7276, "ocr_confidence": 0.498, "pagerank": { "raw": 1.7800499451079752e-07, "percentile": 0.7133483457915886 }, "sha256": "9ab07c25643e8480672a00674cd01f3b0c8a493af3dc81cc96d4a672a368428d", "simhash": "1:10c46474422d89d3", "word_count": 1303 }, "last_updated": "2023-07-14T19:41:58.287119+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Sitton v. Burnett." ], "opinions": [ { "text": "Holt, J.\nDecember 1, 1948, appellee, Burnett, a resident and taxpayer of Clinton, on behalf of himself and other parties similarly interested, brought this action alleging that appellant, Sitton, \u201cbetween May, 1946, and April, 1948, while serving said city as marshal, de facto, was paid by the disbursing officer of said city, the sum of $3,000, $1,000 of which was in excess of the salary at which he had been employed, out of the funds collected as taxes paid to the collector of Yan Bur\u00e9n County by the taxpayers of said city and by said collector paid into the treasury of said city; . . . that the defendant was a de facto officer during the time he received said sum and not legally entitled thereto; that said sum was paid to the defendant as a salary for his services as marshal in the absence of a law authorizing the payment by a city of the second class to a marshal of such a city a salary; that the defendant received and used said sum for his own benefit and refuses to return any part of it to said city.\u201d\nHe further alleged that appellant had used some of the money in acquiring and improving certain real property. He sought a decree for $3,000 on behalf of the city of Clinton and a lien on the above property.\nAppellant answered with a general denial.\n, The trial court found that appellee was entitled to recover the amount claimed, but denied his right to a lien. From that part of the decree awarding appellee $3,000, appellant has appealed. There was no cross appeal.\nThe facts appear not to be in dispute. Sitton was employed by the City Council of Clinton, a city of the second class, at a stipulated salary, to serve as its marshal, and served in that capacity from May 1, 1946, to April 1, 1948. He was paid for his services a total of $3,000, his salary having been- increased at intervals during the period of service in the total amount of $1,000. At no time was he a resident of Clinton or a qualified elector therein. He had not been elected to the position by a vote of the people.\nA phase of this case was before us recently in Thomas v. Sitton, 213 Ark. 816, 212 S. W. 2d 710, and we there held: \u201cThe city marshal of a city of the second class must, under art. 19, \u00a7 3 of the Constitution, possess the qualifications of an elector (Headnote 3). Appellee not being a resident of the city of Clinton was ineligible to hold the office of city marshal of that city (Headnote 4)-. The Legislature having provided that the marshal of cities of the second class shall be elected by the qualified voters of the city, the city council of the city of Clinton was without authority to employ appellee as its marshal. Pope\u2019s Digest, \u00a7 9801 (Headnote 5). Appellee being a cle facto officer only is not entitled to the salary provided for the services of city marshal (Headnote 6).\u201d\nFor reversal, appellant first argues that appellee (1) was without authority to prosecute the action, and (2) that the court lacked jurisdiction.\n(1) This court in Samples v. Grady, 207 Ark. 724, 182 S. W. 2d 875, in effect held against both of these contentions. In that case in construing art. 16, \u00a7 13, of our Constitution, which provides: \u201cAny citizen of any county, city or town may institute suit in behalf of himself and all others interested, to protect the inhabitants thereof against the enforcement of any illegal exactions whatever, \u2019 \u2019 and after reviewing many previous decisions of this court, it was held that a taxpayer, in circumstances similar in effect to the present case, had the right to bring and prosecute a suit in equity. It was there said: \u201cA remedy is afforded in equity to taxpayers to prevent misapplication of public funds on the theory that the taxpayers are the equitable owners of \u2122->blic funds and that their liability to replenish the funds exhausted by the misapplication entitle them, to relief against such misapplication. Fergus v. Russell, 277 Ill. 20, 115 N. E. 166. See, also, McCarroll, Commissioner of Revenues, v. Gregory-Robinson-Speas, Inc., 198 Ark. 235, 129 S. W. 2d 254, 122 A. L. R. 977.\u201d\n(2) Appellant next argues that since he was concededly a de facto officer, had performed the duties of the office of marshal in good faith, and there was no adverse claimant, or de jure officer claiming the salary, he, appellant, was entitled to said salary and could not be required to make refund.\nWe cannot agree.\nAppellant would be correct in this contention but for the fact that we have a statute denying him the right claimed, \u2014 \u00a7 7371, Sandels and Hill\u2019s Digest, \u00a7 14331, Pope\u2019s Digest, and now Ark. Stats. (1947), \u00a7 34-2208, which provicles: \u201cRecovery of fees received by usurper. \u2014Where the usurper has received fees and emoluments arising from the office or franchise, he shall be liable therefor to the person entitled thereto, who may claim the same in the action brought to deprive him of the office or franchise, or in a separate action. If no one be entitled to the office or franchise, the same may be recovered by the State and paid into the public treasury. (Civil Code, \u00a7 530; C. & M. Dig., \u00a7 10331; Pope\u2019s Dig., \u00a7 14331).\u201d\nThis court in Stephens v. Campbell, 67 Ark. 484, 55 S. W. 856, in construing the effect of the above statute, announced the controlling rule as follows: \u201cUnder the statutes of this State, an officer de facto, without legal title to the office, is a usurper (Lambert v. Gallagher, 28 Ark. 451; Wheat v. Smith, 50 Ark. 266-273, 7 S. W. 161), and can be removed from office by \u2018an action by proceedings at law instituted against him, either by the Statu or the party entitled to the office.\u2019 Where he \u2018has received fees and emoluments arising from the office,\u2019 he is liable therefor to the person entitled thereto, who majr claim the same in the action brought to deprive him of the office, ... or in a separate action. If no one be entitled to the office, . . . the same may be recovered by the State, and paid into the State Treasury. Sandels & Hill\u2019s Digest, \u00a7 7371. The fees are not his, and he is not entitled to hold them. If he collects any fees for services rendered, he holds them at sufferance.\u201d This rule has been many times reaffirmed by this court. See Davis v. Wilson, 183 Ark. 271, 35 S. W. 2d 1020.\n\u201cCounties, cities, etc., are political subdivisions of the state, and are included in the term \u2018state,\u2019 which is the concrete whole. State v. Levy Court, Del., 43 A. 522, 524, 1 Pennewill, 597.\u201d (Words and Phrases, Permanent Edition, Vol. 40, page 6.)\nIn 93 A. L. R., page 286, the Annotator under subdivision b, \u201cRight of public to recover back salary paid to de facto officers,\u201d says: \u201cIn Arkansas, the statutes provide that if no one is entitled to an office, any salary, fees, or emoluments which have been paid to a de facto holder thereof \u2018ma}^ be recovered by the state.\u2019 Stephens v. Campbell, (1900), 67 Ark. 484, 55 S. W. 856, applying Sandels and Hill\u2019s Dig., \u00a7 7371, in the case of a cle facto police officer.\u201d\nWe conclude, therefore, that under the above statute, and the decisions of this court, on the record presented, the decree of the trial court was correct and must be, and is affirmed.", "type": "majority", "author": "Holt, J." } ], "attorneys": [ "W. F. Reeves and Opie Rogers, for appellant.", "J. F. Koone and N. J. Henley, for appellee." ], "corrections": "", "head_matter": "Sitton v. Burnett.\n4-9058\n226 S. W. 2d 544\nOpinion delivered February 6, 1950.\nW. F. Reeves and Opie Rogers, for appellant.\nJ. F. Koone and N. J. Henley, for appellee." }, "file_name": "0574-01", "first_page_order": 598, "last_page_order": 602 }