Revis v. Harris

• Court: Arkansas Supreme Court
• Writing for the Court: McFADDIN
• Citation: Revis v. Harris, 219 Ark. 586, 243 S.W.2d 747 (Ark. 1951)
• Decision Date: 19 November 1951
• Docket Number: No. 4-9587,4-9587
• Parties: REVIS v. HARRIS et al.

Page 747

243 S.W.2d 747

219 Ark. 586

REVIS v. HARRIS et al.

No. 4-9587.

Supreme Court of Arkansas.

Nov. 19, 1951.

D. B. Bartlett, Clarksville, for appellant.

J. H. Brock, Clarksville, for appellees.

McFADDIN, Justice.

The appellant, as a taxpayer, seeks to recover into the public treasury moneys which he claims appellee, Harris, received in violation of law. This is the third appearance of some of the phases of the litigation, and is the second appeal of the case.

1. Logan v. Harris, 213 Ark. 37, 210 S.W.2d 301, 303, was an attempt by a private citizen, in an action in the Circuit Court, to challenge appellee Harris' right to hold the office of Municipal Judge of Clarksville. We held that only the Attorney General or the Prosecuting Attorney could bring such action at law ¹, under the usurpation statute. The effect of our holding in the case was to leave Harris in office as Municipal Judge, but we stated in that opinion: 'No judgment was entered as to the competency of appellee to serve as municipal judge'. The opinion in Logan v. Harris, supra, was delivered by this court on March 8, 1948.

2. On September 6, 1949, appellant Revis, as a citizen and taxpayer, filed suit against appellee Harris, in the Chancery Court, seeking to recover into the public treasury moneys alleged to have been unlawfully received by Harris. The Chancery Court sustained a demurrer to the complaint and Revis appealed. Our opinion in that case was delivered on April 3, 1950, see Revis v. Harris, 217 Ark. 25, 228 S.W.2d 624, 626. In reversing the Chancery Court, and in holding that Revis could bring such a suit in equity, we said: 'So here, if appellant's allegations in his complaint to the effect that appellee had been paid sums of money illegally by the city of Clarksville while acting as municipal judge, and for other services, without right or authority of law, were true, appellant stated a cause of action and was a proper party to initiate the suit.'

3. We remanded Revis v. Harris to the Chancery Court, and this present appeal reflects the further proceedings in the Chancery Court. In his answer, Harris admitted that while he was Mayor he received money for services as Municipal Judge, and for services as a laborer for the water and light department of Clarksville; but he claimed that none of such payments were illegal. In effect there was the plea of quantum meruit. The case was submitted to the Chancery Court on an agreed statement of facts and resulted in a decree enjoining Harris 'from further contracting and accepting employment from the Clarksville Light and Water Company and from performing services in any capacity for the Clarksville Municipality, outside of his duties as Mayor, so long as he continues in office as Mayor of said City of Clarksville, Arkansas.' But the decree dismissed 'for want of equity' all that part of Revis' suit which sought 'judgment against the defendant, Sam Harris, to repay the City of Clarksville and Johnson County for services rendered while acting as Municipal Judge and for services performed by contract and job work for the Clarksville Light and Water Company'. From the last portion of the decree--i. e. failure of the Chancery Court to require Harris to repay the moneys he had received--Revis prosecutes this appeal.

The learned Chancellor rendered a written opinion which has proved helpful to this Court. In the said opinion the Chancellor after quoting Sec. 19-909, Ark.Stats., ² said: 'Under this section it was illegal for the defendant, who was Mayor, to act as Municipal Judge, accept employment from the city owned and controlled Light and Water District, or make contracts therewith. The agreed statement of facts shows that he was the Mayor of the City of Clarksville and that he acted as Municipal Judge. * * * The agreed statement of facts further shows that he made a contract with the Light and Water Commission to construct a certain water line and was paid therefor the sum of $1787.91, and that he was an employee of the Light and Water District for a part of three years and received a total remuneration of $3878.05 for his services so rendered. The fact is not made plain, but it appears that one-half of his salary of $200.00 per month as Municipal Judge was paid by Johnson County. * * * Plaintiff has proceeded on the theory that if the Mayor's employment in any of the capacities above enumerated was illegal, then recovery would be had as a matter of course. An examination of the decisions of the Supreme Court of Arkansas discloses that this may not be true.'

In reliance on Smith v. Dandridge, 98 Ark. 38, 135 S.W. 800, 34 L.R.A., N.S., 129, and Gantt v. Ark. Power and Light Co., 189 Ark. 449, 74 S.W.2d 232, the Chancellor held that no money received by Harris could be recovered, saying: 'To require the defendant to repay the city of Clarksville and Johnson County money received for services rendered while acting in good faith would be unjust and inequitable.'

I. Money Received by Harris for Services as Municipal Judge. The agreed statement shows that Harris received from the City of Clarksville and from Johnson County, for services as Municipal Judge, a total of $1733.33; and all of this was received while he was Mayor of the City of Clarksville. We held in the previous appeal of this case, that Harris could not legally occupy the office of Municipal Judge at the time he was Mayor of the City. So it follows that he was not the de jure judge; and the learned Chancellor failed to apply and follow our holding in Sitton v. Burnett, 216 Ark. 574, 226 S.W.2d 544, 545. In that case, a citizen and taxpayer brought suit to recover for the public treasury, salary paid Sitton for services as de facto marshal. Sutton was not a de jure officer. In allowing recovery of such moneys into the public treasury in a taxpayer's suit we said:

'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.

'We cannot agree.

'Appellant would be correct in this contention but for the fact that we have a statute denying him the right claimed,--section 7371, Sandels and Hill's Digest, Section 14331, Pope's Digest, and now Ark.Stats.1947, § 34-2208, which provides: 'Recovery of fees received by...