Cotten v. Hughes

Decision Date03 July 1916
Docket Number100
Citation187 S.W. 905,125 Ark. 126
PartiesCOTTEN v. HUGHES
CourtArkansas Supreme Court

Appeal from Saline Chancery Court; J. P. Henderson, Chancellor affirmed.

Decree affirmed.

Hal L Norwood, for appellant.

1. Special Act 113, Acts 1911, was unconstitutional and void. 117 Ark. 190. Special Act No. 212, Acts 1915, was also void. 185 S.W. 440. The City of Benton was never even a de facto city of the second class. 55 P. 103; 106 Okla. 61; 92 N.E 778; 175 Ind. 332; 136 Ill.App. 606; 88 N.E. 349; 43 Ind.App 634; 73 N.E. 727; 35 Ind.App. 65.

2. There can be no de facto officer where there is no office to fill. 118 U.S. 425; 28 A. 82; 18 N.W. 285; 31 Minn. 472; 29 S.E. 931; 103 Ga. 319; 61 S.E. 30; 4 Ga.App. 197. To constitute a de facto officer there must be a rightful government. 26 Ark. 545, 580. See also 24 P. 370.

3. Plaintiff is not estopped. 15 P. 825; 43 Ind. 566; 37 N.E. 739; 22 Mich. 104. There can be no innocent purchasers of bonds issued without authority of law. 10 R. C. L. 41; 123 N.C. 380; 51 Am. St. Rep. 824; 94 U.S. 260.

Rose, Hemingway, Cantrell, Loughborough & Miles, for appellees.

1. It is immaterial whether the City of Benton is treated as a de jure incorporated town or a de facto city of the second class. All have the same power to organize improvement districts. Its acts were valid. I Dillon Mun. Corp. (5th ed.), § 67, p. 122; 2 Id. § 887, p. 1368; Cooley Const. Law (6th ed.), p. 309; 185 U.S. 1, 13. The case of 38 Ark. 81, is a leading case. See also 54 Id. 374; 117 Id. 190. The latter case has no bearing here. Benton was attempting to exercise powers belonging to a city of the second class. Here the incorporated town had the power regardless of whether the act was void or not.

OPINION

MCCULLOCH, C. J.

Benton, the county seat of Saline County, has been an incorporated town for many years, and was organized under the general statutes of the State, but the General Assembly of 1911 passed a special statute attempting to raise its classification so as to constitute it a city of the second class. It was decided, however, by this court that the special statute was void for the reason that it constituted a violation of those sections of the constitution which provide that "the General Assembly shall pass no special act conferring corporate power," except in certain instances, and that the General Assembly "shall provide by general laws for the organization of cities and incorporated towns." Art. XII, Sections 2 and 3, Constitution of 1874. Cotten v. City of Benton, 117 Ark. 190, 174 S.W. 231.

The decision declaring the special statute void was rendered by this court on February 22, 1915, and the General Assembly enacted a statute, which was approved March 23, 1915 (Act No. 212, page 831, Acts of 1915), attempting to ratify and validate all acts performed by municipalities under special statutes raising their grades, and also confirming in office the de facto officers in those municipalities until an election could be held to elect their successors. The statute, after a recital in the preamble to the effect that the grade of many incorporated towns had been raised by acts of the Legislature to cities of the second class, and that the Supreme Court had held that all such special statutes were void, reads as follows:

"Section 1. It is declared that the constituted government of municipalities, which the Legislature has declared to be cities of the second class, have been and are the de facto governments of such municipalities, and all their acts heretofore done, which would be valid if they were cities of the second class, or which would be valid if they were incorporated towns, are hereby ratified and confirmed, and declared to be valid as the acts of de facto governments; and, inasmuch as some time must elapse before a government can be organized in such municipalities as incorporated towns, the present officers of such municipalities are hereby confirmed in office until their successors are elected and qualified, and are hereby declared to be the de facto and de jure officers of said municipalities, and all their acts as such shall be valid until their successors have been elected and qualified in the manner hereinafter provided."

The second section of the statute directed the Governor, at the earliest practical date, to call a special election in all such municipalities for the purpose of electing a mayor, recorder, and five aldermen as the officers of said municipalities as incorporated towns. The section also provided how the election should be held, and the returns thereof made and declared, etc. The statute contained an emergency clause and therefore went into immediate effect.

On April 16, 1915, an ordinance was passed by the council creating an improvement district for the purpose of installing a system of water works, and appellees were appointed commissioners of the district, and on July 5, 1915, an ordinance was passed levying the assessments against the property in the district. The improvement was undertaken, and the assessments were levied, after obtaining the consent of the majority of the property owners of the district in accordance with the general statutes of this State with respect to improvement districts in cities and towns. Kirby's Digest, section 5664, et seq.

The only thing urged as a defect in the organization of the district is that all acts of the city council of Benton were absolutely void and that the Legislature had no authority to validate any acts which had already been performed, nor to authorize any further acts to be performed by the city council. We need not concern ourselves at present with that part of the statute which undertook to validate acts which had already been performed by the council of Benton as a city of the second class, for, as has already been shown, everything that was done affecting the organization of this improvement district was done after the passage of the...

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5 cases
  • Board of Improvement of Gravette Waterworks Improvement District v. Carman
    • United States
    • Arkansas Supreme Court
    • 7 Abril 1919
    ...the decision in 117 Ark. 190, the Legislature passed the curative act of March 23, 1915, supra, which cured all defects in proceedings. 125 Ark. 126. 5. acts and proceedings in relation to the districts were valid without the curative act, as they were performed by de facto officers. 123 Ar......
  • Board of Improvement v. Carman
    • United States
    • Arkansas Supreme Court
    • 7 Abril 1919
    ...appellant that the act of 1915 cured any defects in the organization of the improvement districts, and that the case of Cotten v. Hughes, 125 Ark. 126, 187 S. W. 905, so holds. But we there expressly pretermitted any discussion of the validating effect of that statute on acts which had been......
  • Lewis v. Tate
    • United States
    • Arkansas Supreme Court
    • 1 Julio 1946
    ...if there had been no legislative authority to create improvement districts in Incorporated Towns." The Carman opinion says: "But [in the Cotten-Hughes case] expressly pretermitted any discussion of the validating effect of [Act 212] on acts [of municipalities] which had been performed prior......
  • Lewis v. Tate, 4-7996.
    • United States
    • Arkansas Supreme Court
    • 1 Julio 1946
    ...unless its population was in excess of 1,750. See Act 119, approved March 9, 1931; Pope's Digest, Sec. 9483. In Cotten v. Hughes, 125 Ark. 126, 187 S.W. 905, 906, it was held that acts of municipal officers in creating a local improvement district and levying assessments (such acts having b......
  • Request a trial to view additional results

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