Pine Bluff daily graphic., 1903-11-17

Cities of the first class are authoriz-
cd TO elect 2one mayor, one city treas
urer and one police iudge enc eitv
clerk and one city attorney. and tive
aldermen for each ward"
Idcm. sections 5262-f
Section 1884 provides thai the may
or shall have power to appoint the
chief of police in cities Of the FIRST
class.
Section '262 prcserihes tbC powers
and duties of city marshals and
section 52S5 those of the chief Of no
lice and the twc' are practically iden~
tical. In each case il is provided that
the officer shall have Hike powers and
be subject 10 like resp mSiblities as
sheriffs and constahles in similar
cases. Each is made a CONSERVATION
of peace and authorized 10 "Sn0nross
riots, disturbances and breaches Of
the public peace; TO serve process
anywhere in his county; to pursue and
arrest any person fleeing Fl IN justice
IN any part of tho state and 10 apDrc.
mend any person in the act of commit
ting any ottenSe against the laws of
the state or ordinances of the city
Hence We see that so far as his powers
and the scope of his authority and dl1-
ties are con"crncd, the marshal f Il
city of the second class and the chief
If police OF a city If the first class are
practically one and the same. II is ap-
parent that each is required to execute
state laws and do many official acts Of
public nature. not relating 10 the
corporation under which he holds OF.
fee.
Amendment No. 3 to constitution of
Arkansas adopted 1898. reads as fol-
lows:
The governor shall, in ease a vac
ancy occurs in any state district. coun-
" or township cffice in the state. either
by death, resignation or otherwise,
fill the same by appointment, such ap-
pointment to be in force and effect
until the next general election there
after
Ii will be Observed that the above
amendment expressly provides that in
all cases Of vacancies in state Offices
the governor shall fill the Same by
appointment. But in Payne V. Ritz
man. 66 Ark. p. 2o3. the supreme court
Of Arkansas. per Bum c. j.. on the
18th of February, 1899. held that the
office of city marshal Of tho city of
not state Office; not within the terms
of the amendment above quoted. and
that the governor lad no power to
fill vacancy therein. II is obvious
that the Offices of marshal of a city
of the second class and chief of po-
lice Of a city of the first class az
practically one and the sai'. tAing,
end that every reason given or rule
applied to one applies with equal f*'sce
to the other. It is, therefore appar-
ent that in the opinion cited We have
q decision OF the supreme court of
this state directly upon the identical is
sue presented in the case at bar. and
this court is bound by law to respect
and obey it.
1t only remains to decide who is
entitled to the salary-thc de jure or
the de facto officer, Or both.
In Stephens V. Campbell p. 67 Ark,
p 491, the supreme court of this state,
per Battle, j., said: 1t is true that
the acts of a de facto officer are valid
as respects the rights of third per
sens But the rule is different when
he seeks to recover a salary II fees
which rest upon the title TO the office.
As said in Andrews Y. Portland, 79 Ne ,
490: "A de facto officer has no legal
right to the emoluments of the office,
the duties CT wnleh he performs under
col~r of an appointment but without
legal title. He cannot maintain an
action for the salary His actlca puts
in Issue his legal title 10 the office
and he cannot recover by showing
merely that he was an officer de
fact0" Hence it follows that as de-
fendant Peterson was merely an off or
de factc. and had no legal title 10 the
CfIice Of chief Of police, ne is not en-
titled to recover the salary for has
services for which he sues herein.
Therefore the court declares the
Law as follows:
THAT the office ri chief of police
and that Of sheriff are MT in them
selves incompatible and both may be
held by the same individual il not
plohibited by statutory or constitu-
tiOnal law.
9 That the office Of chief of pO-
lice Of city Of the first class is not
hA