With all due regard for the opinion of the majority, I am impelled to dissent.
The facts are not in dispute. By appropriate procedure, the incorporated town of Mulberry, Arkansas, was raised to a city of the second class and officially so declared to be by the State Board of Municipal Corporations on November 15, 1945. During the period between November 15, 1945, and April 2, 1946, on which latter date an election was held and municipal officers, for the second class city of Mulberry, were elected and took office, the municipal officers who were serving Mulberry, while it was an incorporated town, continued to hold over and function. It was during this interim, or hold over period, and, as indicated, after Mulberry had been raised to a city of the second class that the holdover officials of the city passed the ordinance giving to the electorate of Mulberry the opportunity to vote upon themselves the bond issues for the construction of the sewer system here involved. *Page 332 The election was duly held and by an almost unanimous vote, the bond issues carried.
In these circumstances, the appellant contends and the majority opinion holds, as I construe it, that the acts of the holdover officers or city council of the town of Mulberry subsequent to November 15, 1945, when Mulberry was raised to a city of the second class, are absolutely void and of no effect in so far as their acts permitted the issuance of "tax secured bonds," and therefore, that any ordinance which these officials attempted to pass in order to permit the people of Mulberry to vote upon themselves tax secured bonds was of no effect, or invalid.
It is my view, both by present statute and former decisions of this court, authority is found for the acts of these holdover officers for the reason that they were acting at least in the capacity of de facto officers and while so acting, their acts in the circumstances were valid and binding. Section 9793, Pope's Digest, provides in part as follows: "The corporate authority of incorporated towns organized or to be organized for general purposes shall vest in one mayor, one recorder and five aldermen, who shall be qualified electors residing within the limits of the corporation, and shall hold their office for two years and until their successors are elected and qualified."
It is obvious that some time must elapse after the incorporated town of Mulberry was officially declared to be a city of the second class and the date on which municipal officers could be elected, and qualified and take office in Mulberry, as a city of the second class.
It seems to me that any other construction would mean that there would be an interim when Mulberry would be without any kind of government, and as this court said in Board of Improvement of Gravette Waterworks Improvement District v. Carman, 138 Ark. 339, 211 S.W. 170: "It is intolerable that there could be a period during which a governmental entity (referring to the incorporated town of Gravette) should be without a government." *Page 333
I think that the old officers of the town of Mulberry held over and continued in office until their successors were elected and qualified as the statute seems to provide.
It must be noted here that what these holdover officers attempted to do was within the power of cities of the second class, under Amendment 13 of the Constitution of Arkansas, to perform. I think, as holdover officers, they had the same powers that would be accorded to officers duly elected and qualified after Mulberry became a city of the second class.
Here, there is no suggestion or intimation of fraud or lack of good faith on the part of these holdover officers. The people of Mulberry were given the opportunity by these officers to vote, and did vote these bond issues upon themselves. This small progressive city now operates and owns a waterworks system and I can conceive of no improvement that would be more effective in preserving and protecting the health and welfare of the people within Mulberry than an adequate sewer system.
In Faucette, Mayor, v. Gerlach, 132 Ark. 58,200 S.W. 279, Judge HART, speaking for this court, quoted with approval from Kent's Commentaries, 14 Ed., vol. 2, p. 295, and said: "In the case of public officers, who are such de facto acting under color of office by an election or appointment not strictly legal, or without having qualified themselves by the requisite tests, or by holding over after the period prescribed for a new appointment, as in the case of sheriffs, constables, etc.; their acts are held valid as respects the rights of third persons who have an interest in them, and as concerns the public, in order to prevent a failure of justice."
Accordingly, it is my view the decree of the lower court should be in all things affirmed.
Mr. Justice McHANEY concurs in this dissent. *Page 334