Eureka Fire Hose Company v. Furry

• Decision Date: 04 December 1916
• Docket Number: 27
• Citation: 190 S.W. 427,126 Ark. 231
• Parties: EUREKA FIRE HOSE COMPANY v. FURRY
• Court: Arkansas Supreme Court

190 S.W. 427

126 Ark. 231

EUREKA FIRE HOSE COMPANY v. FURRY

No. 27

Supreme Court of Arkansas

December 4, 1916

Appeal from Crawford Circuit Court; James Cochran, Judge; affirmed.

STATEMENT BY THE COURT.

This cause was heard below on an agreed statement of facts. The agreed statement of facts is as follows:

"It is agreed by counsel for the above named parties that this cause be tried before this court, upon the pleadings exhibits and the following agreed statement of facts:

"1. That the facts as alleged in the complaint and answer, with all exhibits thereto and proofs of publication attached, are true.

"2. That the city of Van Buren, Ark., was a duly organized city of the second class prior to the passage of Act No. 112 of the General Assembly of Arkansas entitled, 'An Act Declaring the City of Van Buren, Crawford County, Ark., a city of the first class,' approved March 1, 1913, and that said city prior thereto and still, consists of three city wards.

"3. That the following officers were elected as officers of Van Buren as a city of the second class, the first Tuesday in April, 1912, duly qualified and entered upon their respective offices, towit: Mayor, J. D. Hawkins; Recorder, F. H Fennessy; Marshal, H. G. Miller; Aldermen, C. E. Norman, Carl Shibley, Edgar Covey, John Kohne, S. A. Pernot, and L. H Johnson; Treasurer, David Furry.

"That in June, 1913, the following officers were elected at a special election for a city of the first class, duly qualified, and the former officers, not re-elected, abandoned their offices, and said officers entered upon their respective offices, towit: Mayor, J. D. Hawkins; City Clerk F. H. Fennessy; Police Judge, Park Crutcher; Aldermen, C. E Norman, P. H. Morris, W. J. Martin, Joe Jones, L. H. Johnson and W. H. Hayman; Treasurer, said P. W. Furry.

"That J. D. Hawkins has been holding the office of Mayor since April, 1912, said Fennessy was elected as city recorder in April, 1912, and has been elected successively to the office of city clerk under the elections held since said special act, and the office as styled in the proclamation of said elections was "City Clerk." That he has been in constant possession of the records of ordinances, by-laws and proceedings of the city council since 1912, and acting as clerk to said city council. That Aldermen C. E. Norman and L. H. Johnson have been re-elected to office aforesaid continuously since April, 1912.

"At the time set forth in defendant's answer, the said F. H. Fennessy was acting as city clerk under the government as organized by the elections held since the passage of said special act of the Legislature. That no ordinance was passed prescribing his duties since the passage of the said act, and he performed the same clerical duties as he did when acting as recorder in 1912. He signed and attested the minutes and records of the proceedings of the council as 'F. H. Fennessy, City Clerk.'"

Decree affirmed.

Covington & Grant, for appellant.

1. The proceedings to call in the warrants were without authority of law and void. The act was void. 44 Law Rep. 196; 171 S.W. 231.

2. The proof of publication is not in due form of law and there was no proof of publication of the notices required. Kirby's Digest, § 5509; 65 Ark. 142; 48 Id. 238; 65 Id. 353; 87 Id. 406; 48 Id. 238.

L. H. Southmayd, Jr., for appellee.

1. Van Buren had the right to call in its warrants. Kirby's Digest, § 5508. It lost none of its rights by the act March 1, 1913. In 117 Ark. 190, the city attempted to do an act which it had no power to do.

2. The officers were at least de facto officers. 38 Conn. 499; 9 Am. Rep. 409-427; 49 Ark. 439; 38 Id. 150, 158. Their acts are valid. 4 Ark. 582; 49 Id. 439; 55 Id. 81; 52 Id. 356; 65 Id. 343, 351; 74 N.J.L. 455.

3. The notices were given and posted as required by law and the proof of publication legally sufficient. Kirby's Digest, §§ 5508-9, 5471-3, 4923-4; 83 Ark. 229, 231; 117 Id. 254, 259; 34 Cyc. 1825; 122 Ark. 326; 65 Ark. 142; 48 Id. 238; 65 Id. 353; 87 Id. 406-9.

OPINION

HUMPHREYS, J. (after stating the facts).

There can be no question as to the power of all municipalities to call in outstanding warrants for cancellation, reissuance or classification, or for any lawful purpose whatever. Under section 5508, Kirby's Digest, this authority is given to any city or incorporated town in this State.

After purchasing the hose from the appellant herein and issuing a warrant therefor, the city of Van Buren called in its warrants. The call was made by the officers elected at a special election held in 1913, under a special law enacted by the Legislature of Arkansas, raising the city of Van Buren from a city of the second class to a city of the first class.

It is contended by learned counsel for appellant that the special act attempting to raise the city of Van Buren from a city of...