Eureka Fire Hose Co. v. Furry , 126 Ark. 231 ( 1916 )

Humphreys, J.

(after stating the facts). (1) 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 Burén 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 Burén 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 Burén from a city of the second class to a city of the first class is void and that all proceedings by the officers of Van Burén as a city of the first class are void, including the call of the city’s warrants for cancellation and reissuance. It is true that acts of this character were held void in the ease of Gotten v. Benton, 117 Ark. 190, because it enlarged the powers of a municipality. The right to call in the outstanding warrants of the city was not enlarged by the special act in question.

In the special election the same mayor was reelected, the recorder was elected city clerk and two of the old-aldermen were elected new aldermen; four of the old aldermen abandoned their offices and the four newly elected aldermen served in their places on the city council as a city of the first class.

(2) After looking into the authorities carefully, we are of the opinion that- all the officers participating in the affairs of the city as a city of the first class, were at least de facto officers in so far as they were exercising corporate powers of a city of the second class. They were acting under the color of an election and at a time when the special act had not been declared unconstitutional. State v. Carroll, 38 Conn. 449; Keith v. State, 49 Ark. 439; Pierce v. Edington, 38 Ark. 158.

The other questions presented are whether the notices were properly posted and the proofs thereof legally sufficient. The order, notices, proof of publications of notices for calling in the warrants appear in the record as exhibits to the answer and are quite lengthy. We have examined them carefully in connection with the statutes. Both the notice and the proofs thereof are sufficient in form and substance.

The decree refusing the mandamus and declaring the warrants sued on barred, was correct and should be affirmed. It is so ordered.