Beshear v. Ripling, 86-246
| Decision Date | 27 April 1987 |
| Docket Number | No. 86-246,86-246 |
| Parties | Sanford L. BESHEAR, Jr., Appellant, v. W.J. RIPLING, Mayor of the City of Rison, et al., Appellees. |
| Court | Arkansas Supreme Court |
Sanford L. Beshear, Jr., Rison, pro se.
Armstrong & Binns by Murray F. Armstrong, Rison, Bill McLean, Pros. Atty. by: Tom Wynne, III, Asst. Pros. Atty., Fordyce, for appellees.
The appellant, Sanford L. Beshear, Jr., filed a complaint alleging that he was a resident and taxpayer of Rison, Cleveland County, Arkansas. He alleged that one of the appellees, Ronnie A. Phillips, a resident of Dallas County, Arkansas, had been illegally made municipal judge of Rison and Cleveland County. The other appellees, who, along with Mr. Phillips, were defendants, included the mayor, city clerk, and city council members of the City of Rison and the members of the Cleveland County Quorum Court. Most of the thirty-four paragraphs of the complaint were devoted to allegations that Mr. Phillips was a usurper of the position of municipal judge because he had not taken the oath of office, had not been properly appointed, and had not been issued a commission. The appellant further alleged that he was an attorney at law and, presumably because he was the only attorney at law residing in Rison and Cleveland County, he was the only person eligible to hold the office of municipal judge for the city and for the county. In paragraph 30, the appellant alleged he was bringing the action as a taxpayer of Rison and of Cleveland County. In paragraph 31, he alleged that the salary of the municipal judge should be held in abeyance. The complaint sought declaration of a vacancy in the office, an order that the council and quorum court seek a lawful appointment by the governor to fill the office, and an order restraining Mr. Phillips from holding court.
After further pleadings by all parties, the mayor and council members filed a motion to dismiss the complaint on the ground that a usurpation action with respect to a municipal office could be brought only by the attorney general, and thus the appellant lacked standing. The other appellees adopted the motion as their own. In response to the motion, the appellant stated, in part, that the city and the county lacked the authority under the Arkansas Constitution to hire or elect Mr. Phillips as municipal judge. He argued that as a taxpayer he was authorized to bring an illegal exaction action according to Ark. Const. art. 16, § 13.
The action was dismissed solely on the basis that the appellant had no standing to bring a usurpation action. No mention was made in the court's order of the illegal exaction part of the complaint. We hold the dismissal of the illegal exaction allegation of the complaint was reversible error.
In his brief in chief, the appellant argues the trial court erred in failing to declare the office vacant, in failing to find an illegal exaction, and in holding that usurpation was an exclusive remedy. In response, the appellees point out that as of January 1, 1987, the appellant assumed the office of municipal judge and that the issues raised by the appellant are now moot.
We agree with the...
To continue reading
Request your trial
-
Foster v. Jefferson County Quorum Court
...and unless the propriety of filing an illegal exaction suit is raised by the parties, we will not consider it. Beshear v. Ripling, 292 Ark. 79, 728 S.W.2d 170 (1987). The issue of propriety was not raised by the parties; thus, we do not consider The reason we have often held that circuit co......
-
Chapman v. Acqua, et al
...plaintiff contends that public funds generated from tax dollars are being misapplied or illegally spent. See, e.g., Beshear v. Ripling, 292 Ark. 79, 728 S.W.2d 170 (1987) (claiming that tax dollars were spent impermissibly to pay a municipal judge who had usurped his office); Hartwick v. Th......
-
Looper v. Thrash, 98-260
...court has held that one who holds a public office illegally may be required to pay back money received as salary." Beshear v. Ripling, 292 Ark. 79, 728 S.W.2d 170 (1987) (citing Revis v. Harris, 219 Ark. 586, 243 S.W.2d 747 (1951)). For example, in Revis, supra, we recognized a viable illeg......
-
Biedenharn et al v. Hogue
...of quantum meruit only comes into play when the public employee serving illegally is doing so in good faith. See Beshear v. Ripling, 292 Ark. 79, 728 S.W.2d 170 (1987); Martindale v. Honey, 261 Ark. 708, 551 S.W.2d 202 (1977); Revis v. Harris, 219 Ark. 586, 243 S.W.2d 747 (1951); Gantt v. A......