Appellant filed a taxpayer’s suit for a declaratory judgment to keep the City of North Little Rock from paying a fee to a private attorney. The attorney had represented the mayor of North Little Rock, who had been charged with disorderly conduct and resisting arrest. These charges were subsequently dismissed. The complaint alleged an illegal exaction which is prohibited by art. 16, § 13, Constitution of the State of Arkansas. The chancellor dismissed the complaint and this appeal resulted.
John W. Hall, Sr., instituted this suit against Reed W. Thompson in his capacity as mayor and as an individual. Thompson hired a private attorney to defend him against the charges of disorderly conduct and resisting arrest. The arrest grew out of an incident of October 12, 1982, when the mayor went to the police and courts building. The chief of police was in the process of investigating a wrecker contract entered into between the city and a third party. As part of the investigation, subpoenas were issued for several members of the mayor’s staff. When the mayor went to the police department to find out what was happening some type of disagreement between him and the chief of police ensued and the chief arrested the mayor for disorderly conduct and resisting arrest. The mayor denied any wrongdoing. At the trial it was stipulated that Chief Younts was a well qualified officer and if he were present he would testify he had probable cause to arrest Thompson. Prior to the trial of the case, the bill for the private attorney, in the amount of $3,600, was paid from the mayor’s emergency fund. No appropriation for the attorney’s fee was made by the city council. Although there had been a resolution passed by the city council agreeing to appropriate funds as needed for the purpose of paying outside counsel in matters requiring use of such attorneys there was no effort to proceed in accordance with the resolution.
The funds used by Thompson to pay his privately retained defense counsel were taxpayers’ money. The Arkansas Constitution, art. 16, § 13, authorizes any taxpayer to institute suit in behalf of himself and all other interested parties against illegal exactions. The suit was properly filed. The fact that the funds sought to be prevented from being expended had been spent before the chancellor rendered the decree would ordinarily render the question moot. However, we reach the merits because of the possibility of future similar disputes. To fail to reach the merits of the case would tend to encourage the expenditure of public monies without proper procedures and safeguards.
We now consider the argument that this expenditure was an illegal exaction. There is no statutory authority in Arkansas allowing payment of attorney’s fees for public officials and employees when they are terminated or charged with criminal offenses. Even if a public employee is wrongfully discharged and subsequently ordered reinstated he is not authorized to collect attorney’s fees from public funds. Williams v. Little Rock Civil Service Commission, 266 Ark. 599, 587 S.W.2d 42 (1979). Other jurisdictions have also held that attorney’s fees are not recoverable by public officials or employers who are successful in getting the charges dismissed. Chapman v. City of New York, 168 N.Y. 80, 61 N.E. 108 (1901); Schieffelin v. Henry, 123 Misc. 792, 206 N.Y.S. 172 (1924); Guerine v. City of Northlake, 1 Ill. App.3d 603, 274 N.E.2d 625 (1971); Holtzendorff v. Housing Authority of Los Angeles, 250 Cal. App. 2d 596, 58 Cal. Rptr. 886 (1967), cert. denied, 389 U.S. 1038 (1968). In Chapman, supra, the court stated:
It is not the duty of the public to defend or aid in the defense of one charged with official misconduct. The history of morals or jurisprudence recognizes no such obligation. When a citizen accepts a public office, he assumes the risk of defending himself against unfounded accusations at his own expense.
Many other cases from various jurisdictions hold that payment of attorney’s fees for defending against criminal charges is the responsibility of the person so charged.
The official duties of a public official or employee never require him to participate in criminal activities except in most unusual cases. Certainly Mayor Thompson was not charged with performing his public duties. He was charged with violating criminal laws.
The fact that he was not convicted does not change the reason for the arrest. Nothing in the record tends to show that the public benefitted from the confrontation of the two officials. There being no public benefit by the conduct of the mayor, it follows that the public should not pay for his defense.
If the mayor were falsely arrested, he has a right to claim against the responsible parties. If he should recover, it would be purely personal.
Although the exaction was illegal we are unable to do more than declare it so. Neither the city nor the attorney is a party in this proceeding.
Reversed.
Hays, J., not participating. Dudley and Hollingsowrth, JJ., dissent.